                                                                                     ACCEPTED
                                                                                 01-14-00895-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                             7/7/2015 3:49:19 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        NO. 01-14-00895-CR
                              IN THE
                       COURT OF APPEALS                         FILED IN
                                                         1st COURT OF APPEALS
                             FOR THE                         HOUSTON, TEXAS
                    FIRST DISTRICT OF TEXAS              7/7/2015 3:49:19 PM
                        HOUSTON, TEXAS                   CHRISTOPHER A. PRINE
                                                                 Clerk


            LAMAR MARCELL HUNTER, Appellant
                          V.
              THE STATE OF TEXAS, Appellee


            Appealed from the 10TH Judicial District Court
                    of Galveston County, Texas
                       Cause No. 12-CR-1921



              BRIEF FOR THE STATE OF TEXAS



                       JACK ROADY
                CRIMINAL DISTRICT ATTORNEY
                    GALVESTON COUNTY

                   ALLISON LINDBLADE
          ASSISTANT CRIMINAL DISTRICT ATTORNEY
                   GALVESTON COUNTY
                      STATE BAR NO. 24062850
                   600 59TH STREET, SUITE 1001
                       GALVESTON, TX 77551
                (409) 766-2355, FAX (409) 766-2290
                 allison.lindblade@co.galveston.tx.us
ORAL ARGUMENT NOT REQUESTED




                                  i
                  IDENTITY OF PARTIES AND COUNSEL


Presiding Judge                        Hon. Kerry Neves

Appellant                              Lamar Marcell Hunter

Appellee                               The State of Texas

Attorneys for Appellant                Anthony Hernandez – Trial

                                       Joel Bennett – Motion for New Trial

                                       Joseph Kyle Verret – Appeal

Attorneys for State                    Xochitl Vandiver-Gaskin – Trial

                                      Allison Lindblade – Appeal




                                 ii
                                  TABLE OF CONTENTS

Identity of Parties and Counsel                                             ii

Table of Contents                                                           iii

Index of Authorities                                                        v

Summary of the Argument                                                     1

Statement of Facts                                                          3

Second Issue                                                                10
          An ineffective assistance of counsel claim that renders a plea
          involuntary depends on (1) if counsel’s advice was within the
          range of competence and, if not, (2) if there’s a reasonable
          probability that, but for counsel’s errors, the defendant
          wouldn’t have pleaded guilty and would’ve insisted on a
          trial.

          If the defendant was properly admonished, there is a prima
          facie showing that the guilty plea was made voluntarily.

          How’s Hunter’s plea involuntary if the record shows he was
          admonished, he attested to his voluntariness, and his strategy
          was to avoid trial?

      Argument and Authorities                                         10

      Standard of Review and applicable law                                 11

      A voluntary plea                                                      13

      Article 42.12 Section 5 (a) Deferred Adjudication;
      Community Supervision                                                 14


      Trial Court’s ruling at sentencing: “There’s no excuse just by
      saying you were immature.”                                            14


                                         iii
      Trial Court’s ruling on the Motion for New Trial: “the fact of
      this specific finding not being discussed and making a difference
      to me is not at all credible.”                                      16

      The Trial Court denied Hunter’s Motion for New Trial because he
      didn’t find Hunter’s argument credible                              17

      Hunter wanted to avoid a trial and try to reunite his family        18

      Hunter cannot overcome the presumption that his plea was
      voluntary                                                           19

      Whichever way it’s sliced – the outcome would’ve been the same      21

      Conclusion: hindsight is a useless tool                             24

Conclusion and Prayer                                                     26

Certificate of Service                                                    27

Certificate of Compliance                                                 27




                                         iv
                                              INDEX OF AUTHORITIES

CASES 

Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). ............... 12, 13

Barrett v. State, 01-00-00763-CR, 2001 WL 1298867, at *2 (Tex. App.—Houston
 [1st Dist.] Oct. 25, 2001, no pet.)..........................................................................25

Burnell v. State, 01-10-00214-CR, 2012 WL 29200, at *7 (Tex. App.—Houston
 [1st Dist.] Jan. 5, 2012, pet. ref'd) .........................................................................19

Chapa v. State, 407 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2013, no
 pet.) ........................................................................................................................19

Dusenberry v. State, 915 S.W.2d 947, 949 (Tex App.—Houston [1st Dist.] 1996,
 pet. ref'd). ....................................................................................................... 20, 24

Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). ............................13

Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999) ............... 12, 21

Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) ..........................12

Ford v. State, 845 S.W.2d 315, 316 (Tex. App.—Houston [1st Dist.] 1992, no pet.)
 ........................................................................................................................ 14, 20

Graves v. State, 803 S.W.2d 342, 345–47 (Tex. App.—Houston [14th Dist.] 1990,
 pet. ref'd) ...............................................................................................................19

Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ................................13

Lopez v. State, 428 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2014, pet.
 ref’d). .....................................................................................................................11

Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). ...................................14

Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). ..........................13



                                                               v
McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418
 (1969) ....................................................................................................................13

Miranda v. State, 14-14-00091-CR, 2015 WL 1870329, at *1 (Tex. App.—
 Houston [14th Dist.] Apr. 23, 2015, no. pet. h.) ...................................................24

Parkinson v. State, 01-14-00476-CR, 2015 WL 3637983, at *1 (Tex. App.—
 Houston [1st Dist.] June 11, 2015, no. pet. h.) .....................................................23

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). ......................... 11, 17

Rodriguez v. State, 01-14-00206-CR, 2015 WL 457463, at *1 (Tex. App.—
 Houston [1st Dist.] Feb. 3, 2015, no pet.) .............................................................23

State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) ..........................20

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068
  (1984) ............................................................................................................. 12, 21

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ...................... 12, 24

Warren v. State, 01-12-00649-CR, 2014 WL 1516540, at *3-4 (Tex. App.—
 Houston [1st Dist.] Apr. 17, 2014, no pet.)...........................................................13

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ...........................12




CONSTITUTION

U.S. CONST. AMEND. VI............................................................................................11



                                                             vi
STATUTES 

TEX. CODE CRIM. PROC. art. 26.13(b) ......................................................................13

TEX. CRIM. PROC. CODE § art. 42.12(a) ...................................................... 14, 17, 18




                                                    vii
TO THE HONORABLE COURT OF APPEALS:

          Now comes Jack Roady, Criminal District Attorney for Galveston County,

Texas, and files this brief for the State of Texas.

                          SUMMARY OF THE ARGUMENT

          Lamar Marcell Hunter pleaded guilty to aggravated sexual assault of a child

without a sentencing recommendation. After hearing punishment evidence, where

Hunter requested probation, the Trial Court sentenced him to 20 years confinement in

the Institution of Texas Department of Criminal Justice. In his second issue on

appeal, Hunter alleged that he would not have pled guilty and requested punishment

by the Trial Court had he known that the best interest of the victim was a necessary

finding by the Trial Court to place him on deferred probation. Instead, Hunter

claimed he would have demanded a jury trial on the issue of guilt-innocence.1 Hunter

claims his Trial Counsel was ineffective and this rendered his plea involuntary.

          The Trial Court said in its ruling on the Motion for New Trial that the

argument about this specific finding making a difference in the outcome of the

proceedings was not at all credible.

          Hunter only prevails in his argument if he proves that, but for counsel’s errors,

he would’ve insisted on a trial. Although Hunter’s Trial Counsel admitted that he
1
    Hunter brief, p. 1.

                                              1
didn’t advise Hunter of the required best interest of the victim finding, both Hunter

and his Trial Counsel testified that Hunter didn’t want a trial. They testified that

Hunter didn’t want to put the victim through the trauma of a trial because she was

family and had gone on with her life.2 The record does not support Hunter’s claim

that he would’ve insisted on a jury trial.

        The record establishes that Hunter’s plea of guilty was voluntary. Hunter

admitted that he was advised and admonished regarding the range of punishment that

the Trial Court could use. Moreover, Hunter signed admonishments attesting to the

voluntariness of his plea. For all these reasons, the Trial Court’s judgment should be

affirmed.

        Hunter’s first issue on appeal addressed his right to appeal. The State joins

Hunter and agrees that the initial Trial Certificate of Defendant’s Right to Appeal

signed by Hunter and the Trial Court improperly limited Hunter’s right to appeal.3

The State and Hunter filed an agreed motion to abate this appeal to correct the Trial

Court’s Certificate of Defendant’s Right to Appeal. This Court abated the case. As a

result, the Trial Court amended the certificate of defendant’s right to appeal.4

Therefore, this issue will not be discussed herein.

                              STATEMENT OF FACTS

2
  R.R.III:12-15, 37-38.
3
  C.R. 41.
4
  Supplemental C.R.


                                             2
        When A.P.5 was 9 years old, her family lived with extended family for the

summer because her father lost his job.6 Hunter, A.P.’s cousin, also lived there.7

Hunter was 25 years old that summer.8

       While A.P. and her family were living with Hunter and his family, Hunter

repeatedly sexually assaulted her.9 For several years, A.P. didn’t tell anyone what

Hunter did to her because she was afraid of getting into trouble.10

       A.P. outcried to her mother, Jennifer, when she was 15 years old.11 A.P. was

watching a movie with her family when a scene in the movie depicted a little girl

in a sexually abusive situation.12 A.P. ran into her room and eventually called for

her mother.13 She told her mother that Hunter raped her.14

        A.P swore her mother to secrecy because A.P. was close to Hunter’s son

Nicholas.15 A.P. didn’t want Hunter to go to jail because it would leave Nicholas




5
  The victim was given a pseudonym in order to protect her privacy. The pseudonym was used in
the indictment. However, the victim testified at punishment using her legal name.
6
  R.R.II:45; the one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”; the
Reporter’s Record is several volumes and is referred to as “R.R. volume no.: page.”
7
  R.R.II:15, 45-46.
8
  R.R.II:72.
9
  R.R.II:30, 77.
10
   R.R.II:29, 31.
11
   R.R.II:47.
12
   R.R.II:33, 47.
13
   R.R.II:34, 47.
14
   R.R.II:34, 47.
15
   R.R.II:39, 47.


                                                3
without a father.16 But when A.P. found out that Hunter had a new daughter, she

told her mother that she wanted to tell the authorities.17

       La Marque Police Department’s Detective Danielle Herman received the

case from the Texas Department of Family Protective Services.18 During her

investigation, Detective Herman confirmed that A.P. outcried to the mother.19

Detective Herman corroborated some of the details given by A.P. and her mother.20

Detective Herman also interviewed Hunter and confirmed that he lived with A.P.

and the details of the residence.21

       Hunter was indicted with sexual assault of a child by intentionally or

knowingly causing the penetration of the sexual organ of A.P., a child who was

then younger than 14 years of age, by the defendant’s sexual organ.22

       On March 5, 2014, Hunter pled guilty and elected to be sentenced by the

Trial Court with no recommendation by the State.23 The Trial Court ordered a

Presentencing Investigation Report.24 Hunter signed an Application for

Probation.25

16
   R.R.II:39, 47.
17
   R.R.II:49.
18
   R.R.II:12.
19
   R.R.II:12.
20
   R.R.II:15.
21
   R.R.II:15.
22
   C.R. 5.
23
   R.R.II:8.
24
   R.R.III:10.
25
   C.R. 32.


                                           4
       A.P., now a 19 year old mother and college student studying neonatal

nursing, testified at the punishment hearing.26 She testified in detail about how

Hunter repeatedly sexually abused her when she was 9 years old.27 A.P. testified

that she didn’t tell anyone about the abuse because she thought she was going to

get into trouble “‘cause you’re not supposed to be doing that at a young age.”28

A.P. testified that when she saw the same thing happen to girls on T.V., she had

flashbacks.29 A.P. testified that she eventually told her mother about the rapes

when they were watching something on T.V. that upset her.30

       A.P. testified that her family split apart after everyone found out.31 A.P. told

the Trial Court how her relationship with her father changed because her father is

torn between his daughter and his nephew.32 A.P. testified that her relationship

with her father is still shaky.33

       A.P. testified that it was horrible to go through the police process.34 A.P.

testified that there was an incident after she disclosed the abuse where someone

was blocking the driveway at her house.35 A.P. testified that when she made the

26
   R.R.II:21.
27
   R.R.II:27-31.
28
   R.R.II:29.
29
   R.R.II:33.
30
   R.R.II:33-34.
31
   R.R.II:39.
32
   R.R.II:37.
33
   R.R.II:37.
34
   R.R.II:40.
35
   R.R.II:40.


                                           5
circle around the cul-de-sac, they closely followed her for about 5 minutes.36 A.P.

testified that this scared her.37 A.P. testified that she continues to be watchful.38

       A.P.’s mother, Jennifer Hunter, testified that after the abuse was disclosed to

the family, her and her husband separated.39 Jennifer testified that her husband is

torn and does not support A.P.40 Jennifer testified that her husband’s family, except

for A.P.’s grandfather, is estranged and not supportive.41 Jennifer testified that her

and her children have grown stronger because they support A.P. and try to keep her

confident so she can move on with her life.42

       Hunter’s wife, Nicole Hunter, testified that she’s known Hunter since they

were in 6th grade.43 Nicole testified that she and Hunter had 10 year old boy, a 3

year old girl, and a child due in November.44 Nicole testified that Hunter just made

a mistake and that she had no concerns about him being around her children.45

       A.P.’s father, Geoffrey Hunter, testified on behalf of Hunter.46 Geoffrey

testified that he had forgiven Hunter.47 Geoffrey told that Trial Court that to punish


36
   R.R.II:40.
37
   R.R.II:40.
38
   R.R.II:40.
39
   R.R.II:51.
40
   R.R.II:51.
41
   R.R.II:52.
42
   R.R.II:51.
43
   R.R.II:57.
44
   R.R.II:58.
45
   R.R.II:61.
46
   R.R.II:64.
47
   R.R.II:65.


                                            6
Hunter to the highest degree would make everything a lot worse between both

families.48 Geoffrey told that Trial Court that he didn’t want to see Hunter away

from his family but he wanted some justice.49

       Hunter testified at punishment. He testified he was deeply sorry for what he

had done.50 Hunter testified how he was sexually abused from the age of 5 until he

was 9 years old.51 Hunter testified how he never disclosed the abuse.52 He testified,

“and being that I done it to her, I pretty much feel that she would be upset too

because that happened to me as well.”53

       Hunter testified that he wasn’t sexually attracted to his cousin even though

he raped her repeatedly.54 Hunter testified that he didn’t know why he repeatedly

sexually assaulted his cousin.55 He testified he was young and he didn’t know what

he was thinking.56 Hunter testified that he was very immature at the age of 25.57

Hunter testified that he didn’t realize the consequences of his actions at age 25.58




48
   R.R.II:67.
49
   R.R.II:67.
50
   R.R.II:74.
51
   R.R.II:77.
52
   R.R.II:77.
53
   R.R.II:77.
54
   R.R.II:79.
55
   R.R.II:83-84.
56
   R.R.II:85.
57
   R.R.II:78.
58
   R.R.II:72, 79.


                                          7
       Hunter testified that he was a different man now.59 Hunter testified that he

would never do it again even though he didn’t know why he did it the first time.60

Hunter testified that he had not attended any classes or counseling to address the

sexual abuse issues.61

       Hunter told the Trial Court that he could abide by all the conditions of

probations.62 Hunter testified that he could successfully complete probation if the

Trial Court were to give him probation.63

       The Trial Court told Hunter that he had no excuse saying he was immature

at 25 and sentenced him to 20 years confinement in the Texas Department of

Criminal Justice.64

       Hunter filed a timely Motion for New Trial.65 The Trial Court held a

hearing, heard evidence, and denied the motion.66 The details of the hearing will be

discussed in the issue.

       This appeal followed.




59
   R.R.II:72.
60
   R.R.II:85.
61
   R.R.II:79.
62
   R.R.II:74.
63
   R.R.II:74.
64
   R.R.II:92-94.
65
   C.R. 45.
66
   C.R. 52.


                                            8
                                       ISSUE TWO

       An ineffective assistance of counsel claim that renders a plea involuntary
       depends on (1) if counsel’s advice was within the range of competence and,
       if not, (2) if there’s a reasonable probability that, but for counsel’s errors,
       the defendant wouldn’t have pleaded guilty and would’ve insisted on a
       trial.

       If the defendant was properly admonished, there is a prima facie showing
       that the guilty plea was made voluntarily.

       How’s Hunter’s plea involuntary if the record shows he was admonished,
       he attested to his voluntariness, and his strategy was to avoid trial?




                           ARGUMENT AND AUTHORITIES

          Hunter claims he would’ve demanded a jury trial on the issue of guilt-

innocence had he known that the best interest of the victim was a necessary finding

by the Trial Court to place him on deferred probation.67 The Trial Court said in its

ruling that the issue of the specific finding making a difference in the outcome of the

proceeding was not at all credible.68 Although Hunter’s Trial Counsel admitted that

he didn’t advise Hunter of the required finding, this didn’t render his Trial Counsel

ineffective or Hunter’s plea involuntary in view of their trial strategy and all of

Hunter’s admissions and admonishments.

Standard of review and applicable law
67
     Hunter brief, p. 1.
68
     R.R.III:53.


                                             9
       When an ineffective assistance of counsel claim is brought in a motion for

new trial, the appellate court reviews the trial court’s denial of the motion for an

abuse of discretion.69 The appellate court reverses the trial court’s motion for new

trial only if the trial court’s order “was clearly erroneous and arbitrary.”70 The

evidence is reviewed in the light most favorable to the ruling and upheld if it is

within the zone of reasonable disagreement.71 Almost total deference must be

shown to a Trial Court’s findings of historical facts as well as mixed questions of

law and fact that turn on an evaluation of credibility and demeanor.72

       The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions.73 Generally,

to show ineffective assistance of counsel, a defendant must demonstrate both (1)

that his counsel’s performance fell below an objective standard of reasonableness

and (2) that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.74 Failure to make the

required showing of either deficient performance or sufficient prejudice defeats the




69
   Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).
70
   Id.
71
   Id.; Lopez v. State, 428 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
72
   Riley, 378 S.W.3d 453 at 458.
73
   See U.S. CONST. AMEND. VI.
74
   Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068 (1984);
Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).


                                             10
ineffectiveness claim.75

      “When a defendant challenges the voluntariness of a plea entered upon the

advice of counsel, contending that his counsel was ineffective, ‘the voluntariness

of the plea depends on (1) whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases and if not, (2) whether there

is a reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.’”76

      Under either test, the defendant bears the burden to prove the elements by a

preponderance of the evidence.77 Any allegation of ineffectiveness must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.78 It is presumed that counsel’s conduct falls within the wide range

of reasonable professional assistance, and counsel’s performance will be found

deficient only if the conduct is so outrageous that no competent attorney would

have engaged in it.79



75
   See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Andrews, 159
S.W.3d at 101.
76
   Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow,
952 S.W.2d 530, 536 (Tex. Crim. App. 1997)).
77
    See Moody, 991 S.W.2d at 858 (holding defendant's burden is same as other types of
ineffective assistance of counsel claims); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999) (holding defendant bears burden of proving by preponderance of evidence that
counsel was ineffective).
78
   Thompson, 9 S.W.3d at 813.
79
   Andrews, 159 S.W.3d at 101; Warren v. State, 01-12-00649-CR, 2014 WL 1516540, at *3-4
(Tex. App.—Houston [1st Dist.] Apr. 17, 2014, no pet.) (not designated for publication).


                                            11
       The Court of Criminal Appeals stated that “[i]n making an assessment of

effective assistance of counsel, an appellate court must review the totality of the

representation and the circumstances of each case without the benefit of

hindsight.”80

A voluntary plea

       It is well established that a guilty plea must be entered into knowingly and

voluntarily.81 The applicable standard of review is whether the plea is a voluntary

and intelligent choice among the alternative courses of action open to the

accused.82 A record that indicates that the trial court properly admonished the

defendant provides a prima facie showing that the guilty plea was made voluntarily

and knowingly.83 A defendant signing the admonishments, an attestation of

voluntariness, at the original plea hearing imposes a heavy burden on him at a later

hearing to show a lack of voluntariness.84

Article 42.12 Section 5 (a) Deferred Adjudication; Community Supervision

       The Texas Code of Criminal Procedure reads:



80
   Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
81
   See TEX. CODE CRIM. PROC. art. 26.13(b); McCarthy v. United States, 394 U.S. 459, 466, 89
S.Ct. 1166, 22 L.Ed.2d 418 (1969); Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App.
2014).
82
   McCarthy, 394 U.S. at 466; Mable, 443 S.W.3d at 131.
83
   Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).
84
   Ford v. State, 845 S.W.2d 315, 316 (Tex. App.—Houston [1st Dist.] 1992, no pet.); see also
Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001).


                                             12
                 A judge may place on community supervision under this
                 section a defendant charged with an offense under
                 Section 21.11, 22.011, or 22.021, Penal Code, regardless
                 of the age of the victim, or a defendant charged with a
                 felony described by Section 13B(b) of this article, only if
                 the judge makes a finding in open court that placing the
                 defendant on community supervision is in the best
                 interest of the victim. The failure of the judge to find
                 that deferred adjudication is in the best interest of the
                 victim is not grounds for the defendant to set aside the
                 plea, deferred adjudication, or any subsequent
                 conviction or sentence.85

By a plain reading of the statute, whether or not the Trial Court found that deferred

adjudication was in the best interest of the victim couldn’t have been grounds for

Hunter to set aside the plea.86

Trial Court’s ruling at sentencing: “There’s no excuse just by saying you were

immature.”

          After hearing the evidence in Hunter’s punishment hearing, the Trial Court

gave it’s ruling on the record:

                        Now, Mr. Hunter, you committed a terrible crime,
                 a horrible crime, not only once but by your testimony
                 three, plus times. It was a huge mistake. It’s a huge
                 mistake for you, for this young lady, for her family, for
                 your family. And I see her mother and father sitting on
                 separate sides of the courtroom, and there's just a schism
                 here.

                        There's no way I can square a 25-year-old and a

85
     TEX. CRIM. PROC. CODE § art. 42.12(a) (emphasis added).
86
     See id.


                                                13
                 nine-year-old and the testimony I’ve heard today in any
                 way shape, fashion or form. You said you were
                 immature.

                       In my generation, 50-some-odd thousand people
                 died in South East Asia and a whole hell of a lot them
                 were less than 25 years old. I was one of the fortunate
                 ones, I guess, that didn't go over there. But I was in the
                 Marines at that time. There’s no excuse just by saying
                 you were immature.

                        Everyone admits nobody can win and it looks like
                 people are getting on with their life. But I agree with [the
                 State] completely that part that young lady at the age of
                 nine ceased to function, ceased to live, ceased to exist.
                 And while there are no winners, there will be some
                 justice.

                        So, it is the judgment of this Court, Mr. Hunter,
                 that the Bailiff is to take you into custody. And the
                 Sheriff is to turn you over to the appropriate authorities
                 with the Texas Department of Criminal Justice to serve a
                 sentence of 20 years.87

Trial Court’s ruling on the Motion for New Trial: “the fact of this specific

finding not being discussed and making a difference to me is not at all

credible.”

          After hearing the evidence in Hunter’s Motion for New Trial hearing, the

Trial Court gave it’s ruling on the record:

                       When we had the sentencing hearing, I am very
                 confident the Defendant fully understood the full range
                 of punishment.

87
     R.R.II:92-94.


                                             14
                         Probation was argued for the fact of this specific
                   finding not being discussed and making a difference to
                   me is not at all credible. He simply made a bad choice.
                   You can critique or second guess whatever Mr.
                   Hernandez for hoping and thinking that on these facts I
                   would show mercy or be kind and put him on deferred or
                   some type of probation. In my mind, that was a bad call.

                          Looking back over the transcript and looking at
                   what I said when I found you guilty and sentenced you,
                   Mr. Hunter, again, there’s no way you could square a 25-
                   year-old and a 9-year-old, an aggravated sexual assault.
                   You got up and testified you were immature and things
                   of that nature. And I think I responded to that with a little
                   bit of discussion about my history, and I didn't find that
                   credible.

                         So, you simply chose a wrong goal here of getting
                   probation. And based on those facts, there was absolutely
                   no way in Heaven I was ever going to give you
                   probation. So, the Motion for New Trial is denied.88

The Trial Court denied Hunter’s Motion for New Trial because he didn’t find

Hunter’s argument credible

          In its ruling, the Trial Court stated that the finding of in the best interest of

the victim would not have made a difference in the outcome of the proceedings.

The Trial Court told Hunter that he didn’t find him credible. The Trial Court told

Hunter that probation wasn’t an option. The Trial Court’s ruling should be upheld




88
     R.R.III:53.


                                                15
because it’s based, at least in part, on the Court’s assessment of Hunter’s

credibility and demeanor.89

       Moreover, the Trial Court’s Motion for New Trial should be upheld by the

plain meaning of the Article 42.12§5(a): “The failure of the judge to find that

deferred adjudication is in the best interest of the victim is not grounds for the

defendant to set aside the plea, deferred adjudication, or any subsequent conviction

or sentence.”90 Whether or not the Trial Court found that deferred adjudication was

in the best interest of the victim couldn’t have been grounds for Hunter to set aside

the plea.



Hunter wanted to avoid a trial and try to reunite his family

       Trial Counsel admitted that he didn’t advise Hunter about the finding the

Trial Court was required to make regarding the best interest of the victim in order

to place a defendant on deferred probation.91 Nonetheless, this lack of advice didn’t

render his Trial Counsel ineffective or Hunter’s plea involuntary in view of their

trial strategy and all of Hunter’s admissions and admonishments.




89
   See Riley, 378 S.W.3d at 457.
90
   TEX. CRIM. PROC. CODE § art. 42.12(a).
91
   R.R.III:11; TEX. CRIM. PROC. CODE § art. 42.12(a).


                                               16
       Both Hunter and his Trial Counsel testified that they wanted to avoid a trial

in order to spare the victim from going through a trial.92 Hunter didn’t want to have

to put the victim through the trauma of a trial because the victim was a family

member and she had gone on with her life.93 Hunter testified at sentencing that he

wanted to try to reunite the family.94

       Hunter’s strategy was to plea to the Trial Court and hope for deferred

adjudication.95 Hunter testified at the motion for new trial that he knew the family

had rejected a plea to probation.96 Hunter testified at the motion for new trial that

he was aware that the victim’s family was not going to support his request for

probation.97 Hunter testified that he thought the victim wanted him in prison.98

       Hunter testified at the motion for new trial that his trial attorney told him

that if they went to a trial by jury, that it wouldn’t go well for him.99 Hunter

testified that his trial attorney told that if he completes the PSI, he would be able to

receive probation, if everything goes well, and if the Court found mercy upon




92
   R.R.III:12-15, 37-38.
93
   R.R.III:12-15, 37-38.
94
   R.R.II:74.
95
   R.R.III:32-34.
96
   R.R.III:34.
97
   R.R.III:34.
98
   R.R.III:34.
99
   R.R.III:32.


                                          17
him.100 The record does not support Hunter’s claim that he would’ve insisted on a

jury trial for guilt-innocence.

Hunter cannot overcome the presumption that his plea was voluntary

       Prior to the plea, Trial Counsel advised Hunter about the full range of

punishment.101 Hunter testified that he understood the range of punishment at the

time of his plea.102 Hunter testified at sentencing that he accepted that he had pled

guilty and would have to accept the Court’s punishment.103 He said he understood

there was a possibility of prison.104

       When Hunter entered his plea of guilty, he signed papers indicating that he

understood the consequences of his plea after consulting with his attorney and that




100
     R.R.III:32-34; see Chapa v. State, 407 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.]
2013, no pet.) (Court held that it was not ineffective assistance for a defense counsel to advise
his client to plead guilty under the expectation that there would be a lighter sentence than what
the client ultimately received.); see also Graves v. State, 803 S.W.2d 342, 345–47 (Tex. App.—
Houston [14th Dist.] 1990, pet. ref'd); see also Burnell v. State, 01-10-00214-CR, 2012 WL
29200, at *7 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, pet. ref'd) (not designated for
publication) (Even if defendant was told that the likelihood of community supervision was high
in an open plea to the Trial Court, this Court cannot find this advice is below the range of
competence of a reasonable defense attorney. If a defendant is eligible for community
supervision, a trial counsel does not render ineffective assistance by advising him to plead guilty
under the expectation that there will be a lighter sentence than what is ultimately received.).
101
    R.R.III:17-18.
102
    R.R.III:31-32.
103
    R.R.II: 81-82: “I accept that things that I have done and for the punishment that the Court puts
on me today or whatever, I will have to accept it. I have pleaded guilty to this. I have not denied
it. I'm ready to put it in the past and put this behind me and to press on in my life, to move
forward. So, I have to accept anything that comes at me right now. I can understand it's a
possibility that I can go to prison. But, yet, I haven't accepted it, no.”
104
    R.R.II: 81-82.


                                                18
he entered his plea knowingly and voluntarily.105 The plea papers show that

Hunter’s attorney and the Trial Court verified that Hunter entered his plea

voluntarily and knowingly.106

       Hunter failed to show a lack of voluntariness in his plea due to his attestation

of voluntariness at the original plea hearing.107 In addition, Hunter’s plea was

voluntary in light of the testimony that Hunter wanted to avoid a trial in order to

spare the victim from going through a trial.108 There wasn’t a reasonable

probability or a believable probability that, but for Trial Counsel’s errors, if any,

Hunter wouldn’t have pleaded guilty and would have insisted on going to trial.109

Whichever way it’s sliced – the outcome would’ve been the same

       Even if Hunter’s Trial Counsel’s performance fell below an objective

standard of reasonableness, Hunter hasn’t proven that the proceeding would’ve

been different.110 In its ruling on the Motion for New Trial, the Trial Court said that

Hunter’s argument regarding a discussion of the required finding for deferred

probation was not credible because asking the Trial Court for some type of

105
     See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (When a person attacks
the validity of his prior guilty plea as that plea is reflected in the written judgment, he bears the
burden of defeating the normal presumption that recitals in the written judgment are correct.
Those written recitals “are binding in the absence of direct proof of their falsity.”); see also
Dusenberry v. State, 915 S.W.2d 947, 949 (Tex App.—Houston [1st Dist.] 1996, pet. ref'd).
106
    See Dusenberry, 915 S.W.2d at 949; C.R. 25-26.
107
    See id.; see also Ford, 845 S.W.2d at 315.
108
    R.R.III:12-15, 37-38.
109
    See Moody, 991 S.W.2d at 857–58.
110
    See Strickland, 466 U.S. at 687-88.


                                                 19
probation was not a good choice.111 In other words, testimony supporting the “in

the best interest of the victim” finding wouldn’t have made a difference in the

outcome of the ruling.

         The Trial Court heard Hunter testify at punishment and didn’t find him

credible:

       Hunter testified that he was very immature at the age of 25.112

       Hunter testified that he was young and he didn’t know what he was

         thinking.113

       Hunter testified that he didn’t realize the consequences of his actions at age

         25.114

       Hunter testified that he wasn’t sexually attracted to his cousin even though

         he raped her repeatedly.115

       Hunter testified that he didn’t know why he repeatedly sexually assaulted his

         cousin.116

       Hunter testified that he would never do it again even though he didn’t know

         why he did it the first time.117


111
    R.R.III:53.
112
    R.R.II:78.
113
    R.R.II:85.
114
    R.R.II:79.
115
    R.R.II:79.
116
    R.R.II:83-84.
117
    R.R.II:85.


                                            20
       Hunter testified that he had not attended any classes or counseling to address

         the sexual abuse issues and that he had tried but didn’t know what type of

         counseling he needed.118

         Before the Trial Court sentenced Hunter, it said, “There's no way I can

square a 25-year-old and a nine-year-old and the testimony I've heard today in any

way shape, fashion or form. You said you were immature…There's no excuse just

by saying you were immature.”119 The Trial Court compared Hunter to the fallen

soldiers that had given their lives at ages younger than 25 years old. The Trial

Court did not find Hunter’s callow excuse credible.

         The Trial Court didn’t find Hunter credible at punishment when Hunter’s

excuse for raping a 9 year old little girl was his lack of maturity. The Trial Court

didn’t find Hunter credible at the subsequent hearing when Hunter’s reason for his

supposed involuntary plea was his trial counsel’s erroneous advice. The Trial

Court simply didn’t find Hunter credible.

         Hunter claims that if his Trial Counsel would have advised him differently

about the required best interest of the victim finding, he wouldn’t have pled

guilty.120 Even if this were credible and not the product of hindsight, Hunter’s

outcome still would not have been different. Hunter’s Trial Counsel correctly

118
    R.R.II:79-80.
119
    R.R.II:92-94.
120
    R.R.III:35-36.


                                           21
advised him that he probably wouldn’t have received a better sentenced in front of

a jury.121 Even with the possible benefits of hindsight, Hunter has not shown that

the outcome would’ve been different.

Conclusion: hindsight is a useless tool

       Despite Hunter testifying at the hearing on his motion for new trial, he

simply did not rebut the presumption that Trial Counsel made all significant

decisions in the exercise of reasonable professional judgment, and Hunter has not

demonstrated in the record that Trial Counsel rendered ineffective assistance.122

Hunter claimed that his allegedly ineffective assistance of Trial Counsel caused

him to enter an involuntary plea of guilty. Considering the voluntariness of a guilty

plea is determined by the totality of the circumstances and there is a presumption

of regularity of the judgment and the proceedings, Hunter has not overcome this

presumption.123 During the hearing on the motion for new trial, Hunter testified he


121
    R.R.III:32; Rodriguez v. State, 01-14-00206-CR, 2015 WL 457463, at *1 (Tex. App.—
Houston [1st Dist.] Feb. 3, 2015, no pet.) (A Harris County jury convicted defendant of the
felony offense of aggravated sexual assault of a child and assessed his punishment at eighty
years' confinement and a $10,000 fine.); Parkinson v. State, 01-14-00476-CR, 2015 WL
3637983, at *1 (Tex. App.—Houston [1st Dist.] June 11, 2015, no. pet. h.) (not designated for
publication) (A Brazoria County jury found defendant guilty on four counts aggravated sexual
assault of a child and assessed punishment at 45 years' confinement on each count.); and
Miranda v. State, 14-14-00091-CR, 2015 WL 1870329, at *1 (Tex. App.—Houston [14th Dist.]
Apr. 23, 2015, no. pet. h.) (not designated for publication) (A Harris County jury found appellant
guilty of aggravated sexual assault of a child and the trial court sentenced appellant to twenty-
five years' confinement.).
122
    See Thompson, 9 S.W.3d at 814.
123
    See Dusenberry, 915 S.W.2d at 949; see also Fimberg v. State, 922 S.W.2d 205, 207 (Tex.
App.—Houston [1st Dist.] 1996, pet. ref'd).


                                               22
was admonished by the Trial Court on the range of punishment and that he was

aware that the Trial Court had no restrictions on punishment within that range.124

Hunter failed to meet his burden in overcoming the presumption of regularity of

the judgment and proceedings; therefore, his plea should be found voluntary.125

Hunter’s second issue should be overruled and the Trial Court affirmed.




124
   R.R.III:31-32.
125
   See Barrett v. State, 01-00-00763-CR, 2001 WL 1298867, at *2 (Tex. App.—Houston [1st
Dist.] Oct. 25, 2001, no pet.) (not designated for publication).


                                          23
                          CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State prays that the

judgment of the Trial Court be affirmed in all respects.

                                        Respectfully submitted,

                                        JACK ROADY
                                        CRIMINAL DISTRICT ATTORNEY
                                        GALVESTON COUNTY, TEXAS


                                              /s/ Allison Lindblade
                                        ALLISON LINDBLADE
                                        Assistant Criminal District Attorney
                                        State Bar Number 24062850
                                        600 59th Street, Suite 1001
                                        Galveston, Texas 77551
                                        Tel (409)766-2453/Fax (409)765-3261
                                        allison.lindblade@co.galveston.tx.us




                                          24
                           CERTIFICATE OF SERVICE

      The undersigned Attorney for the State certifies a copy of the foregoing brief

was sent via email, eFile service, or certified mail, return receipt requested, to Joseph

Kyle Verret, attorney for Hunter Marcell Hunter, at Kyle@verretlaw.com or 11200

Broadway, Suite 2743, Pearland, Texas 77584 on July 7, 2015.




                                              /s/ Allison Lindblade
                                          ALLISON LINDBLADE
                                          Assistant Criminal District Attorney
                                          Galveston County, Texas



                       CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief is computer

generated, and consists of 5,163 words.




                                              /s/ Allison Lindblade
                                          ALLISON LINDBLADE
                                          Assistant Criminal District Attorney
                                          Galveston County, Texas




                                            25
