Affirmed and Memorandum Opinion filed September 15, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00220-CR

                     LELAND ALAN DYKES, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 208th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1313034

                MEMORANDUM                     OPINION


      Appellant Leland Alan Dykes pleaded guilty to the first-degree felony of
misapplication of fiduciary property over $200,000. See Tex. Penal Code Ann. §
32.45(c)(7) (Vernon Supp. 2014). The trial court sentenced appellant to 15 years’
imprisonment and ordered that appellant pay restitution of $1,003,127.98 as a
condition of parole. On appeal, appellant contends that: (1) his guilty plea was
involuntary because it was entered as a result of trial counsel’s ineffective
assistance; and (2) appellant was denied effective assistance of counsel at his
sentencing hearing. We affirm.

                                         BACKGROUND

       Appellant was indicted for misapplying funds of eight customers between
June 15, 2007, and September 30, 2008, while acting as a securities broker. While
represented by attorney Lisa Andrews,1 appellant pleaded guilty to misapplication
of fiduciary property without an agreed recommendation from the State regarding
punishment.

       The trial court held a sentencing hearing at which the State presented
testimony from five of the complainants, from the State Securities Board
enforcement attorney who investigated appellant’s companies, and from a State
Securities Board financial examiner.2                 The testimony revealed that the
complainants had responded to newspaper advertisements by appellant’s
companies for high-interest certificates of deposit. Altogether, the complainants
invested over $1.1 million with appellant’s companies.3                      However, the
complainants’ funds were not actually invested in certificates of deposit, and it
appears that approximately half of the funds were never invested at all.4 Moreover,

       1
           Andrews was the second attorney to represent appellant.
       2
         The defense presented appellant, and also called three other witnesses in addition to
appellant: appellant’s associate pastor and a former subordinate were called as character
witnesses, and a co-investor in one of the companies where appellant invested some of the
complainants’ money was called to testify concerning the nature of that investment.
       3
       Appellant served as director for the relevant companies, and had sole access to the
company accounts where the complainants’ funds were deposited.
       4
          Evidence was presented that some of the complainants’ funds were used to make an
unsecured loan to a startup drilling company that had never produced a profit and subsequently
went bankrupt. Some of the funds were distributed to other investors who were not complainants
in this case. Other funds were transferred to appellant’s personal bank account and used for
appellant’s personal expenditures, including the purchase of appellant’s house and car, living
expenses, and legal fees.

                                                 2
and contrary to assertions made by appellant’s companies, the few investments
actually made were not insured.

      Although interest payments were made to several of the complainants, no
principal was ever returned, resulting in a collective loss of more than $1 million
among the eight complainants. Appellant’s only proposed plan for restitution to
the complainants was to sell his house — which he predicted would raise
approximately $100,000 — and to try to get a job to pay the balance.

      The State requested that the trial court sentence appellant to 45 years’
imprisonment; the defense requested that appellant receive deferred adjudication or
probation. The trial court sentenced appellant to 15 years’ imprisonment, and
ordered that appellant pay restitution of $1,003,127.98 as a condition of parole.

      Appellant, represented by different counsel, filed a motion for new trial
alleging ineffective assistance by Andrews. The trial court denied appellant’s
motion, and subsequently made findings of fact and conclusions of law. This
appeal followed.

                               STANDARD OF REVIEW

      Appellant presented his ineffective-assistance claim to the trial court in a
motion for new trial, which the trial court denied. We therefore analyze the
ineffective-assistance-of-counsel claim as a challenge to the denial of appellant’s
motion for new trial, which we review for an abuse of discretion. Charles v. State,
146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds
by Tex. R. App. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901,
905 n.5 (Tex. Crim. App. 2007). We view the evidence in the light most favorable
to the ruling, and will reverse only if the trial court’s decision is arbitrary or
unreasonable. Id.


                                          3
                                 APPLICABLE LAW

      On appeal, appellant contends that: (1) his guilty plea was involuntary
because it was entered as a result of trial counsel’s ineffective assistance; and
(2) appellant was denied effective assistance of counsel at his sentencing hearing.
Both issues involve a claim of ineffective assistance of counsel; therefore, we
discuss the general ineffective-assistance standard, and also discuss how that law
specifically relates to a claim that counsel’s advice to plead guilty is based on an
unreasonable pre-trial investigation.

        To prevail on a claim of ineffective assistance of counsel, appellant must
show that: (1) appellant’s counsel’s performance was deficient; and (2) the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984); see also Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (noting that,
although Strickland involved an ineffective-assistance claim in a sentencing
proceeding, Strickland’s two-prong test equally applies to guilty pleas based on
ineffective assistance of counsel). A guilty plea is not voluntary if made as a result
of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex.
Crim. App. 1980); Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d).

      Regarding the first prong, appellant must show that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687; Perez v. State, 310 S.W.3d 890, 892-93
(Tex. Crim. App. 2010). Counsel has a duty to provide advice to the client about
what plea to enter, and that advice should be informed by an adequate investigation
of the facts or based on a reasonable decision that such an investigation was
unnecessary. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
“In any ineffectiveness case, a particular decision not to investigate must be

                                          4
directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691.

      Regarding the second prong, an error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment. Id. Appellant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694; Perez, 310 S.W.3d at 893.
“[W]here the alleged error of counsel is a failure to investigate or discover
potentially exculpatory evidence, the determination whether the error ‘prejudiced’
the defendant by causing him to plead guilty rather than go to trial will depend on
the likelihood that discovery of the evidence would have led counsel to change his
recommendation as to the plea.” Hill, 474 U.S. at 59; see also Ex parte Briggs,
187 S.W.3d 458, 469 (Tex. Crim. App. 2005). This, in turn, “will depend in large
part on a prediction whether the evidence likely would have changed the outcome
of a trial.” Hill, 474 U.S. at 59; Briggs, 187 S.W.3d at 469.

                                    APPLICATION

A.    Appellant’s Guilty Plea

      In his first issue, appellant contends that his guilty plea was not voluntary
and knowing because it was entered on the advice of Andrews, and the advice,
appellant contends, was based on an unreasonable and inadequate pre-trial
investigation. Appellant contends that, but for counsel’s advice, he would not have
pleaded guilty.

      Appellant lists a myriad of alleged failures by Andrews.            Specifically
relevant to appellant’s claim that Andrews conducted an unreasonable pre-trial
investigation, appellant contends that: (1) Andrews admitted that she was not


                                          5
prepared to try the case on the trial date; (2) Andrews conducted only a very
limited investigation into Bill Moore, appellant’s salesman who signed up the
complainants with appellant’s companies, and whom appellant claimed was really
running the company; (3) Andrews failed to adequately investigate a potential
defense of mistake of fact — specifically, that appellant believed his firm was
covered by insurance; (4) Andrews failed to sufficiently investigate the financial
records, even though her forensic fraud examiner suggested she do so; (5) when
appellant was unable to arrange funding to hire a replacement forensic fraud
examiner after the previous examiner returned to the district attorney’s office,
Andrews did not seek funding from the trial court even though appellant may have
been entitled to such funding; (6) Andrews never interviewed any of the State’s
witnesses prior to the trial date; and (7) Andrews never contacted the chief
executive officer of the startup drilling company where appellant invested some of
the complainants’ funds to “determine whether this money was invested in the
good faith belief” that the company was going to hit oil.

      At the hearing on appellant’s motion for new trial, appellant’s new counsel
called Andrews as a witness. Andrews testified that appellant’s only defense at
trial would have been that appellant did not personally meet with any of the
complainants or make any representations to any complainants, but that it was
instead appellant’s salesman Bill Moore who met with the complainants, and
appellant relied on Moore to “take care of the things that were represented to the
complainants in the contracts.” Andrews testified that she developed this defense
by talking with appellant. However, after speaking with other witnesses, Andrews
came to believe that, “even if we could damage Mr. Moore on cross[,] [it] was still
going to paint a picture of a fairly close relationship between [appellant] and Mr.
Moore such that a jury wouldn’t believe that [appellant] had no knowledge of what


                                         6
Mr. Moore was doing.” Andrews also noted that, after reviewing the documents, it
became clear that the problem with appellant’s defense was that appellant was “the
one who handled all of the money, not Mr. Moore.” Moreover, Andrews testified
that certain documents contradicted appellant’s claim that he had no knowledge of
the representations made to the complainants by Moore. Accordingly, Andrews
conducted online research regarding Moore, but she did not intend to call Moore as
a witness and, therefore, did not attempt to contact Moore or conduct further
investigation concerning Moore.

      Andrews further testified that she hired a forensic fraud examiner. The fraud
examiner reviewed the State’s file and prepared a detailed report of his findings.
After the fraud examiner accepted employment with the district attorney’s office
and ceased working on appellant’s case, Andrews did not hire a second forensic
fraud examiner, in part because appellant could not come up with funding to do so.
Andrews testified that she considered going to the trial court to request funding
from the court, but ultimately decided not to do so as a strategic decision, believing
it would hurt the defense’s ability to argue to the court that appellant could pay
restitution if appellant had to request expert witness retention funds from the court
as an indigent defendant. Andrews also stated that she did not hire a second
examiner to further investigate the financial documents because “the more [she]
looked at the state’s case, [she] did not think tracing the money was as important in
[appellant’s] case. It wasn’t a theft case. [She] didn’t think tracing the different
amounts of money was as important at that point because it was an issue of
whether or not [appellant] had a fiduciary duty to these complainants in the
representations that were made to them.”

      Andrews testified that she reviewed the State’s extensive file, spoke with six
witnesses, and reviewed boxes of documents that appellant provided. Andrews

                                           7
also testified that she had at least three in-person meetings with appellant before
his plea, including one that lasted several hours, and that Andrews had “many
conversations [with appellant] about the strengths and the weaknesses of the state’s
case versus his case and his evidence.” Andrews stated that she spoke with the
prosecutors regarding the case on many occasions. Andrews testified that she
conducted research regarding misapplication of fiduciary property, but that she did
not research the potential defense of mistake of fact because she did not believe
such a defense “was going to be very credible.”

      Andrews testified that she never contacted the CEO of the startup drilling
company, but that the issue of whether appellant invested the complainants’ money
in the startup in good faith did not go to appellant’s guilt or innocence on the
misapplication-of-fiduciary-property charge because such an investment was not
what had been advertised to the complainants.

      Finally, Andrews testified that based upon her research and investigation
concerning the law and the facts, her experience as a prosecutor and a defense
lawyer, and her belief that appellant likely would face a significant prison sentence
should the case be tried to a jury presented with elderly complainants who had lost
retirement savings, she advised appellant to plead guilty.

      After hearing Andrews’s testimony, the trial court denied appellant’s motion
for new trial. At appellant’s request, the trial court issued findings of fact and
conclusions of law. Specifically, the trial court found, in relevant part, that:
Andrews was not prepared to go to trial because, based on her experience with the
court, she did not believe trial would go forward on the trial date; Andrews
reviewed the State’s file; Andrews met with appellant numerous times and spoke
with him over the phone on many occasions while the case was pending to discuss
aspects of his case, including all of his options; Andrews asked appellant on

                                          8
numerous occasions before the case was set for trial to produce any evidence to
contradict the State’s theory of the case, but appellant never provided any such
evidence to her in any form, including identifying witnesses; Andrews believed
that, based upon her review of the evidence, a defensive theory of mistake of fact
probably would not be a credible or persuasive defensive theory with a jury;
Andrews believed a jury would convict appellant of misapplication of fiduciary
property based upon her review of the evidence and her experience as a trial
lawyer; and, before entering his guilty plea, appellant met with Andrews and
together they discussed the ramifications of pleading guilty and went over the plea
papers and the admonishment form, which reflected the full range of punishment
and appellant’s right to trial by jury.

       The trial court concluded that appellant’s guilty plea was knowingly, freely
and voluntarily made; that it was not outside the range of competence demanded of
attorneys in criminal cases for Andrews to have advised appellant to plead guilty
and opt for the court to determine punishment; that such advice was sound trial
strategy; and that Andrews’s performance was not deficient.

       Although appellant contends that Andrews’s advice was “erroneous” and
“inaccurate,” appellant does not identify how Andrews’s advice was legally
incorrect. See, e.g., Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999)
(where counsel provided incorrect advice concerning whether defendant’s
sentences would run consecutively or concurrently, such advice constituted
ineffective assistance of counsel). Nor has appellant demonstrated that the alleged
defense of mistake-of-fact was a viable one,5 or that Andrews failed to uncover any


       5
         Appellant was charged with misapplication of fiduciary property. See Tex. Penal Code
Ann. § 32.45. A person commits the offense of misapplication of fiduciary property if “he
intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary . . . in a
manner that involves substantial risk of loss to the owner of the property or to a person for whose
                                                9
other viable defense. See, e.g., Ex parte Imoudu, 284 S.W.3d 866, 870 (Tex. Crim.
App. 2009) (concluding counsel had a duty to investigate a possible insanity
defense where several individuals had expressed concern regarding defendant’s
mental state and defendant acted erratically when attorneys met with him); Briggs,
187 S.W.3d at 468-69 (concluding counsel was ineffective where counsel failed to
seek funds from trial court to hire an expert witness to present a clearly evident
viable defense that defendant’s actions did not cause her son’s death). Rather,
appellant’s contention is, in essence, that Andrews did not perform a reasonable
pre-trial investigation, and that her advice that appellant plead guilty was therefore
deficient.

       Viewing the evidence in the light most favorable to the trial court’s denial of
appellant’s motion for new trial, we do not conclude that the trial court’s decision
was arbitrary or unreasonable. Andrews made her recommendation that appellant
plead guilty after reviewing the voluminous file, discussing the case extensively
with appellant, speaking with several witnesses, reviewing a detailed report by a
forensic fraud examiner, and reviewing relevant case law on the charge against
appellant. While Andrews could have done more, we cannot say based upon the
record before us that her pre-trial investigation was inadequate or unreasonable.
See, e.g., Standerford v. State, 928 S.W.2d 688, 698 (Tex. App.—Fort Worth 1996,
no pet.) (“That counsel could have done more does not mean that his performance
fell below a minimum level of competence.”) (emphasis in original).

benefit the property is held.” Id. § 32.45(b). “‘Misapply’ means deal with property contrary to .
. . an agreement under which the fiduciary holds the property . . . .” Id. § 32.45(a)(2). Appellant
does not dispute that he had a fiduciary relationship with the complainants, nor does he dispute
that the complainants entered into agreements with his company whereby their funds were to be
invested. Appellant’s alleged mistake-of-fact defense — that he believed the portion of the
funds he invested were insured — does not overcome the fact that approximately half of the
funds were never invested at all or that appellant used more than $200,000 of the complainants’
funds for personal expenses.

                                                10
      Similarly, “applying a heavy measure of deference” to Andrews’s decision
not to investigate certain potential defenses or interview the State’s witnesses or
other potential witnesses, we cannot say those decisions were unreasonable
considering that, based upon a reasonable review of the facts, such investigation
was unlikely to be of assistance to appellant’s defense. See Strickland, 466 U.S. at
691; Parker v. State, 462 S.W.3d 559, 564 (Tex. App.—Houston [14th Dist.] 2015,
no pet.) (viewed under the “strong presumption that [counsel’s] conduct falls
within the wide range of reasonable professional assistance,” appellant failed to
establish that counsel’s investigation was unreasonable).

      Additionally, appellant has not demonstrated a reasonable probability that,
but for Andrews’s alleged failure to investigate, the result of the proceeding would
have been different. See Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 893.
Further investigation concerning appellant’s alleged mistake-of-fact defense —
that he believed certain investments to be insured — would not have helped
appellant, as the uncontroverted evidence at trial established that approximately
half of the funds in appellant’s care were never invested at all. Likewise, no
investigation into Moore would have changed the fact that it was ultimately
appellant’s duty to properly invest the complainants’ funds, and appellant had sole
access to the company accounts where the complainants’ funds were deposited.
Nor has appellant presented any evidence on appeal that would have potentially
changed the outcome at trial had Andrews discovered it through a more thorough
investigation. See Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007)
(appellant did not demonstrate prejudice where no showing was made regarding
what evidence a proper investigation would have revealed); Stokes v. State, 298
S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“A claim for
ineffective assistance based on trial counsel’s general failure to investigate the


                                         11
facts of the case fails absent a showing of what the investigation would have
revealed that reasonably could have changed the result of the case. Likewise, a
claim for ineffective assistance based on trial counsel’s failure to interview a
witness cannot succeed absent a showing of what the interview would have
revealed that reasonably could have changed the result of the case.”) (citation
omitted). Accordingly, we conclude that appellant has failed to establish that he
suffered any prejudice as a result of Andrews’s alleged ineffective assistance. See,
e.g., Ex parte Martinez, 195 S.W.3d 713, 722 (Tex. Crim. App. 2006) (where
evidence showed that appellant was aware his conduct was wrong, counsel was not
ineffective for failing to investigate or present a defense of voluntary intoxication,
which requires that the individual be unable to understand the wrongfulness of the
conduct); Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983) (counsel’s
failure to investigate the facts of a case constitutes ineffectiveness if the result is
that any viable defense was not advanced); Stokes, 298 S.W.3d at 432.

      We conclude that Andrews’s advice that appellant plead guilty did not
constitute ineffective assistance of counsel. Moreover, we conclude that appellant
has not demonstrated that the outcome of the proceeding would have been different
had   Andrews     conducted    additional        investigation   prior to   making   her
recommendation that appellant plead guilty. Appellant’s first issue is overruled.

B.    Counsel’s Representation At The Punishment Hearing

      In his second issue, appellant contends that he was denied effective
assistance of counsel at his sentencing hearing because Andrews failed to elicit
evidence from appellant that he was truly remorseful and that he had a plan to
make restitution to the complainants.            Appellant contends that these failures
prejudiced appellant because they “clearly impacted the trial court’s determination
to assess a 15-year prison sentence instead of probation.”

                                            12
      During the sentencing hearing, Andrews specifically asked appellant, “What
would you say to those Complainants that lost their money in your company?”
Appellant replied, “Well, I don’t like to lose at anything, and I feel very bad about
the losses that these people have experienced. And, I tried to go in to look at other
things to be able to come in and pick up where we left off, to be able to make these
people whole and to be able to take care of them. Uh, some of the things were due
and some weren’t, but I have never quit trying to take care of the obligations and
take care of what these people have. It just hasn’t happened.”

      Additionally, the trial court told appellant, “I don’t see any good faith on
your part, or remorse for what you’ve done.” The court then asked appellant if he
had anything to say before the court pronounced its sentence, and appellant replied,
“Yes, I do have remorse. I was asked on the witness stand about remorse, and yes,
I have great remorse.”      Based on the foregoing, we conclude that Andrews
attempted to elicit a notion of remorse from appellant. Appellant’s failure to
express that remorse convincingly is not the fault of his counsel.

      Regarding appellant’s claim that Andrews failed to present a plan for
restitution to the trial court, the following discussion took place at the sentencing
hearing:

      [ANDREWS:] In an attempt to raise some of the money -- uh -- have
      you done some things since you pled guilty?
      [APPELLANT:] Yes. Uh, one of the things I’m doing is selling my
      house, which I will offer those funds, plus some other funds -- uh --
      that I can create -- uh -- from working -- uh -- to go back towards --
      uh -- reimbursement to the -- uh -- investors.
      [ANDREWS:] Approximately how much money might you be able
      to offer them as restitution from the sale of your home?
      [APPELLANT:] Uh, I’m looking at probably a hundred thousand
      dollars.

                                         13
      [ANDREWS:] Additionally, if the Judge sees fit to give you
      probation, would you be able to, or do you intend to, go out and get a
      job?
      [APPELLANT:] Definitely.
      [ANDREWS:] Would you make every effort to continue and try and
      make as much restitution as you could?
      [APPELLANT:] Yes, I would.
Additionally, Andrews testified at the hearing on appellant’s motion for new trial
that she had specifically told appellant on many occasions that his house was “his
vehicle for restitution and his only asset,” and that selling the house was his
“biggest and best evidence” to convince the court to sentence appellant to deferred
adjudication. However, despite numerous continuances of the trial setting and the
passing of more than five months between appellant’s guilty plea and the
sentencing hearing, appellant still had not finalized the sale of his house by the date
of the sentencing hearing. Instead, appellant attempted to offer five blank checks
from the alleged purchaser of his home. Appellant claimed the checks were valid
for $20,000 each (for a total of $100,000), but stated that only $20,000 of the funds
were immediately available and that the remainder would be available in the
coming months.      Andrews testified that she had instructed appellant to bring
checks that were filled out by the maker, but that appellant “was concerned that he
didn’t want to pony-up the money if he wasn’t going to get probation, so he didn’t
want to actually give the money up-front until he knew he was getting probation.”

      We conclude that Andrews attempted to present a restitution plan for
appellant to the trial court, but that appellant’s actions prevented her from
effectively doing so. Moreover, we note that the trial court was well within its




                                          14
discretion to disregard appellant’s offer of $100,000 in restitution at the hearing on
the motion for new trial as too little, too late.6

       Accordingly, because Andrews reasonably attempted to elicit appellant’s
expression of remorse and to present a plan for appellant to make restitution, we
conclude that appellant received effective assistance of counsel at his punishment
hearing. Appellant’s second issue is overruled.

                                       CONCLUSION

       We conclude that appellant has not established ineffective assistance of
counsel. Accordingly, we affirm the trial court’s judgment.




                                          /s/     William J. Boyce
                                                  Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




       6
         This is especially true considering the trial court heard testimony that appellant’s
reported income the year before was $60,000, making any plan for real restitution to the
complainants rather implausible.

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