In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00180-CR ____________________
CULLEN ASHTON TODD, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 10-05-04679-CR ________________________________________________________ _____________
MEMORANDUM OPINION
Cullen Ashton Todd pleaded guilty to theft from an elderly individual. The
trial court found the evidence sufficient to find Todd guilty, but deferred further
proceedings and placed Todd on community supervision for two years. The State
subsequently filed a motion to adjudicate. Todd filed a petition for habeas corpus
on grounds that his guilty plea was involuntary and, after a hearing, the trial court
denied Todd’s petition. At a subsequent revocation hearing, Todd pleaded “not
true” to the State’s allegations. After hearing evidence, the trial court revoked
1 Todd’s community supervision and sentenced Todd to two years in state jail. On
appeal, Todd challenges the denial of his petition for habeas corpus and the trial
court’s failure to issue findings of fact and conclusions of law. We affirm the trial
court’s order.
Habeas Corpus
In issues one and two, Todd contends that the trial court abused its discretion
by denying his application for writ of habeas corpus because his trial counsel
rendered ineffective assistance, which made his guilty plea involuntary. We review
a trial court’s denial of an application for writ of habeas corpus for abuse of
discretion. Ex parte Klem, 269 S.W.3d 711, 718 (Tex. App.—Beaumont 2008, pet.
ref’d). We consider the entire record and review the facts in the light most
favorable to the trial court’s ruling. Id. We afford almost total deference to the trial
court’s determination of historical facts supported by the record, especially those
findings that are based on an evaluation of credibility and demeanor. Id. We afford
the same deference to the trial court’s rulings on application of law to fact
questions when resolution of those questions turns on an evaluation of credibility
and demeanor. Id. We review the determination de novo when resolution of those
questions turns on an application of legal standards. Id. A guilty plea is considered
voluntary if the defendant was made fully aware of the direct consequences of his
2 plea. Id. at 719. When attacking a guilty plea on the basis of ineffective assistance
of counsel, the defendant must show that counsel’s alleged deficiencies resulted in
the plea being unknowingly and involuntarily made. Id. at 718.
Todd was charged with stealing a television, valued at $500 to $1500, from
his grandfather. At the habeas corpus hearing, Todd’s grandmother testified that
the television cost approximately $500. She testified that, today, the same
television costs under $500 and she did not believe it could be sold for $500 or
more. Todd testified that he told defense counsel that the television’s value was
$400 to $450 and that the offense should be a misdemeanor, not a felony.
According to Todd, counsel stated that the offense could not be reduced and that
two years of deferred adjudication was a good deal. Todd testified that, based on
this advice, he chose to accept the plea and felt he had no other choice. Todd
feared that he would receive a greater sentence if he chose not to accept the offer.
When he pleaded guilty, Todd believed his attorney had done a good job, but he
later changed his mind after speaking with his family.
Defense counsel testified that she was told the television cost less than $500,
which she explained would change the range of punishment. Counsel testified that
the State had a receipt for the television that showed a purchase price of $587.80.
Counsel explained that she wanted the State to consider reducing the offense to a
3 misdemeanor and placing Todd on deferred adjudication, but the prosecutor would
not do so in light of the receipt provided by the complainant. Counsel testified that
she was still able to obtain deferred adjudication for Todd and that, although
deferred adjudication can last up to five years for a state jail felony, Todd only
received two years. She testified that she would never ask a trial court to accept a
plea that she believed to be involuntary.
On appeal, Todd contends that he could not be convicted of a state jail
felony if the television was worth less than $500. Todd argues that defense counsel
based her advice on a receipt for the original purchase price of the television, rather
than the television’s fair market value. According to Todd, defense counsel
rendered ineffective assistance by failing to sufficiently investigate the facts of the
case before advising Todd to plead guilty and that, consequently, his guilty plea
was involuntary.
“An attorney advises a client based upon an evaluation of numerous factors
and considerations.” Ex parte Niswanger, 335 S.W.3d 611, 616 (Tex. Crim. App.
2011). “[C]ompetent advice requires that an attorney conduct independent legal
and factual investigations sufficient to enable him to have a firm command of the
case and the relationship between the facts and each element of the offense.” Id. at
615. Because the offense in this case was committed against an elderly individual,
4 theft of property exceeding $500 was a state jail felony, while theft of property
valued less than $500 was a misdemeanor. See Tex. Penal Code Ann. §
31.03(e)(3), (f)(3)(A) (West Supp. 2012). Retail price, sale price, the owner’s
opinion of value, or expert testimony can be used to establish fair market value.
See Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); see also Tex.
Penal Code Ann. § 31.08 (West 2011).
The record does not support Todd’s contention that defense counsel failed to
sufficiently investigate the facts. Rather, the record indicates that Todd’s defense
counsel attempted to convince the State to reduce the charge to a misdemeanor on
grounds that the television’s value was less than $500, but the State chose to
proceed in light of the complainant’s receipt reflecting the television’s value.
Defense counsel presented the State’s plea offer to Todd and Todd accepted the
offer. When entering his plea, Todd stated that he understood the range of
punishment, had reviewed the plea papers with defense counsel, understood that he
was waiving his rights to a jury trial and to an appeal, stated that he pleaded guilty
voluntarily, and affirmed that defense counsel did a good job. The trial court
explained to Todd that if he successfully completed deferred adjudication, the case
would be dismissed and the conviction would not appear on his record, which
Todd acknowledged he understood.
5 The record demonstrates that Todd was made fully aware of the
consequences of his plea. See Klem, 269 S.W.3d at 719. Had Todd decided not to
plead guilty and proceeded to trial, he could have been convicted of theft even if
the jury determined the value of the television to be less than $500. However, had
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00180-CR ____________________
CULLEN ASHTON TODD, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 10-05-04679-CR ________________________________________________________ _____________
MEMORANDUM OPINION
Cullen Ashton Todd pleaded guilty to theft from an elderly individual. The
trial court found the evidence sufficient to find Todd guilty, but deferred further
proceedings and placed Todd on community supervision for two years. The State
subsequently filed a motion to adjudicate. Todd filed a petition for habeas corpus
on grounds that his guilty plea was involuntary and, after a hearing, the trial court
denied Todd’s petition. At a subsequent revocation hearing, Todd pleaded “not
true” to the State’s allegations. After hearing evidence, the trial court revoked
1 Todd’s community supervision and sentenced Todd to two years in state jail. On
appeal, Todd challenges the denial of his petition for habeas corpus and the trial
court’s failure to issue findings of fact and conclusions of law. We affirm the trial
court’s order.
Habeas Corpus
In issues one and two, Todd contends that the trial court abused its discretion
by denying his application for writ of habeas corpus because his trial counsel
rendered ineffective assistance, which made his guilty plea involuntary. We review
a trial court’s denial of an application for writ of habeas corpus for abuse of
discretion. Ex parte Klem, 269 S.W.3d 711, 718 (Tex. App.—Beaumont 2008, pet.
ref’d). We consider the entire record and review the facts in the light most
favorable to the trial court’s ruling. Id. We afford almost total deference to the trial
court’s determination of historical facts supported by the record, especially those
findings that are based on an evaluation of credibility and demeanor. Id. We afford
the same deference to the trial court’s rulings on application of law to fact
questions when resolution of those questions turns on an evaluation of credibility
and demeanor. Id. We review the determination de novo when resolution of those
questions turns on an application of legal standards. Id. A guilty plea is considered
voluntary if the defendant was made fully aware of the direct consequences of his
2 plea. Id. at 719. When attacking a guilty plea on the basis of ineffective assistance
of counsel, the defendant must show that counsel’s alleged deficiencies resulted in
the plea being unknowingly and involuntarily made. Id. at 718.
Todd was charged with stealing a television, valued at $500 to $1500, from
his grandfather. At the habeas corpus hearing, Todd’s grandmother testified that
the television cost approximately $500. She testified that, today, the same
television costs under $500 and she did not believe it could be sold for $500 or
more. Todd testified that he told defense counsel that the television’s value was
$400 to $450 and that the offense should be a misdemeanor, not a felony.
According to Todd, counsel stated that the offense could not be reduced and that
two years of deferred adjudication was a good deal. Todd testified that, based on
this advice, he chose to accept the plea and felt he had no other choice. Todd
feared that he would receive a greater sentence if he chose not to accept the offer.
When he pleaded guilty, Todd believed his attorney had done a good job, but he
later changed his mind after speaking with his family.
Defense counsel testified that she was told the television cost less than $500,
which she explained would change the range of punishment. Counsel testified that
the State had a receipt for the television that showed a purchase price of $587.80.
Counsel explained that she wanted the State to consider reducing the offense to a
3 misdemeanor and placing Todd on deferred adjudication, but the prosecutor would
not do so in light of the receipt provided by the complainant. Counsel testified that
she was still able to obtain deferred adjudication for Todd and that, although
deferred adjudication can last up to five years for a state jail felony, Todd only
received two years. She testified that she would never ask a trial court to accept a
plea that she believed to be involuntary.
On appeal, Todd contends that he could not be convicted of a state jail
felony if the television was worth less than $500. Todd argues that defense counsel
based her advice on a receipt for the original purchase price of the television, rather
than the television’s fair market value. According to Todd, defense counsel
rendered ineffective assistance by failing to sufficiently investigate the facts of the
case before advising Todd to plead guilty and that, consequently, his guilty plea
was involuntary.
“An attorney advises a client based upon an evaluation of numerous factors
and considerations.” Ex parte Niswanger, 335 S.W.3d 611, 616 (Tex. Crim. App.
2011). “[C]ompetent advice requires that an attorney conduct independent legal
and factual investigations sufficient to enable him to have a firm command of the
case and the relationship between the facts and each element of the offense.” Id. at
615. Because the offense in this case was committed against an elderly individual,
4 theft of property exceeding $500 was a state jail felony, while theft of property
valued less than $500 was a misdemeanor. See Tex. Penal Code Ann. §
31.03(e)(3), (f)(3)(A) (West Supp. 2012). Retail price, sale price, the owner’s
opinion of value, or expert testimony can be used to establish fair market value.
See Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); see also Tex.
Penal Code Ann. § 31.08 (West 2011).
The record does not support Todd’s contention that defense counsel failed to
sufficiently investigate the facts. Rather, the record indicates that Todd’s defense
counsel attempted to convince the State to reduce the charge to a misdemeanor on
grounds that the television’s value was less than $500, but the State chose to
proceed in light of the complainant’s receipt reflecting the television’s value.
Defense counsel presented the State’s plea offer to Todd and Todd accepted the
offer. When entering his plea, Todd stated that he understood the range of
punishment, had reviewed the plea papers with defense counsel, understood that he
was waiving his rights to a jury trial and to an appeal, stated that he pleaded guilty
voluntarily, and affirmed that defense counsel did a good job. The trial court
explained to Todd that if he successfully completed deferred adjudication, the case
would be dismissed and the conviction would not appear on his record, which
Todd acknowledged he understood.
5 The record demonstrates that Todd was made fully aware of the
consequences of his plea. See Klem, 269 S.W.3d at 719. Had Todd decided not to
plead guilty and proceeded to trial, he could have been convicted of theft even if
the jury determined the value of the television to be less than $500. However, had
Todd successfully completed deferred adjudication, there would have been no
conviction and the case would have been dismissed. See Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004) (A defendant reaps the benefit of
deferred adjudication if community supervision is successfully completed; the
proceedings are dismissed, the defendant is discharged, and the defendant is
deemed not to have a conviction for many purposes.).
Under the circumstances of this case, we conclude that Todd has not
overcome the strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance, i.e., that counsel’s actions might be
considered sound trial strategy. See Niswanger, 335 S.W.3d at 615; see also
Guillory v. State, 99 S.W.3d 735, 740 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d) (Appellant failed to establish that his counsel’s actions, which culminated in
the entry of a guilty plea in return for deferred adjudication community
supervision, fell below prevailing professional norms or were not the result of a
6 sound trial strategy.). The trial court did not abuse its discretion by denying Todd’s
petition for writ of habeas corpus. We overrule issues one and two.
Findings of Fact and Conclusions of Law
In a third issue, Todd contends that the trial court violated his due process
rights by failing to make written findings of fact and conclusions of law as
requested by Todd. When requested, the court should make specific findings as to
the basis for revocation. Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim.
App. 1977); Reasor v. State, 281 S.W.3d 129, 136 (Tex. App.—San Antonio 2008,
pet. ref’d). The trial court’s failure to make the requested findings may require
reversal if their omission impedes appellate review of the revocation. Reasor, 281
S.W.3d at 136.
Todd requested findings of fact and conclusions of law from the trial court
regarding its judgment adjudicating guilt. Todd subsequently filed a notice of past
due findings. The judgment states, “Defendant violated the terms and conditions of
community supervision set out in the State’s Amended Motion to Adjudicate Guilt
as follows: I, II, III, IV, V, and VI[.]” A trial court is not required to issue separate
findings if the judgment discloses the grounds for revocation found by the trial
court. Id. Because the trial court’s judgment identifies which of the State’s
allegations served as the basis for its revocation decision, we conclude that the trial
7 court was not required to issue findings of fact and conclusions of law and its
failure to do so did not impede appellate review. See id. We overrule this issue and
affirm the trial court’s judgment.
AFFIRMED.
________________________________ STEVE McKEITHEN Chief Justice
Submitted on March 13, 2013 Opinion Delivered March 27, 2013 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.