Larry Mendoza v. State

• Court: Court of Appeals of Texas
• Decided: June 12, 2008
• Docket: 14-06-01016-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 12, 2008

Affirmed and Memorandum Opinion filed June 12, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-01015-CR

NO. 14-06-01016-CR

LARRY MENDOZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

 Harris County, Texas

Trial Court Cause No. 1059051 & 1059050

M E M O R A N D U M   O P I N I O N

Appellant Larry Mendoza appeals a conviction for on grounds that: (1) the trial court erred in denying a request for findings of fact and conclusions of law at the conclusion of the hearing on the motion for a new trial; (2) appellant=s guilty plea was involuntary, and therefore entered in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution; (3) appellant was denied effective assistance of counsel at the guilt-innocence phase of trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution; (4) the trial court abused its discretion in denying appellant=s motion for a new trial due to an involuntary plea; (5) the appellant was denied effective assistance of counsel at the punishment phase of trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution; and (6) the trial court abused its discretion in denying appellant=s motion for a new trial on punishment.  We affirm.

I. Background

The police, pursuant to information from a confidential informant, obtained a search warrant for appellant=s residence where he was living with his wife and children.  When police arrived, appellant was asleep with his wife.  During the search, the police found 85 grams of crack cocaine, 616 grams of powder cocaine, 75.4 grams of ecstacy, 267 tablets of Xanax, and crack cookies in the easy reach of an unsupervised toddler.  They also recovered over $16,000 in cash and eight guns, including two pistols, a shotgun, a revolver, and four rifles B three of which were equipped with scopes and one of which had been stolen from the Pearland Police Department.  The home contained  a monitoring system and other security apparatus.  Appellant admitted, on several occasions, that the drugs belonged solely to himself, and that his wife, Krystal Villatoro, was not involved.

At the inception, appellant was appointed counsel, first Deborah Keyser and then Rick Gonzalez, but his family subsequently retained its own defense lawyer.  It retained Jonathan Gluckman and hired Todd Overstreet to advise him.  Apparently unsatisfied with the State=s plea agreement, on September 5, 2006, the family hired Albert Fong (AFong@).  According to the record, Fong reviewed the State=s file in preparation for trial on September 6^th or 7^th.  Fong made his first appearance in the case on September 6, 2006 in a motion to substitute, and presented appellant=s signed waiver agreeing to appointment of new counsel with under ten days to prepare for trial.^[1]  The court granted the motion on September 8^th, the same day as the case was set for trial.  Also on September 8, 2006, the state moved to have an amended indictment, adding the aggravating element of gun use/exhibition during the commission of the drug offense.^[2]  Appellant was advised by Fong to sign this amended indictment.

The prosecutor, Marcy McCorvey, was concerned about the late appointment of defense counsel, testifying at the motion for new trial that she felt appellant was Aplaying the system@ and trying to establish an ineffective assistance of counsel case by bringing in a new lawyer so late.  Hence, according to her testimony she offered the entire file to Fong and reviewed it with him.  She even had Fong sign a form, indicating that he had reviewed the documents in the file.  Appellant=s trial was scheduled for the following day, September 8, 2006.

Appellant was charged with possession with intent to distribute a controlled substance and with an enhancement allegation of possession of a deadly weapon. He entered a guilty plea on September 8, 2006, after consultation with Fong and after turning down the State=s offer of 30 years, opting instead to have the court assess punishment following the preparation of a presentence investigation report (PSI).  Fong noted that the strategic reason behind allowing the court to assign the punishment was that only the court could offer deferred adjudication in light of the fact that appellant had already broken parole onceBin fact there was a warrant out for this parole violation at the time of the arrest. At the conclusion of the PSI hearing, on November 9, 2006, the trial court found the enhancement paragraph true and sentenced appellant to 50 years in the Texas Department of Corrections, Institutional Division.

On January 11, 2007, appellant=s motion for new trial was denied.  Notice of appeal was timely filed and this appeal follows.

II. Standards of Review

A. Motion for a New Trial

The decision to grant a new trial rests within the sound discretion of the trial court.  State v. Herndon, 215 S.W.3d 901, 906-07 (Tex. Crim. App.  2007).  That discretion, however, is neither unbounded nor unfettered, and must ultimately be in the interest of justice and in accordance with the law.  Id.  We do not substitute our judgment for that of the trial court, but rather look to whether the trial court=s decision was arbitrary or unreasonable.  Holden v. State, 215 S.W.3d 761, 763 (Tex. Crim. App. 2006).  In reviewing the decision, we look to the evidence that most favors the trial court=s decision, and Apresume that all factual findings that could have been made against the losing party were made against  the losing party.@  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).   We find an abuse of discretion only when Ano reasonable view of the record could support the trial court=s ruling.@  Holden, 215 S.W.3d at 763.

More specifically, a trial court=s denial of a defendant=s motion for a new trial in the face of a charge of ineffectiveness assistance of counsel is also reviewed for abuse of discretion.  Webber v. State, No. 14-01-00446-CR, 2002 WL 369925, at *2 (Tex. App.CHouston [14th Dist.] March 7, 2002, no pet.); see State v. Gill, 967 S.W.2d 540, 541 (Tex. App.CAustin 1998, pet. ref=d).  Therefore, in ruling on the denial of a motion for new trial, our application of the Strickland test for ineffectiveness of counsel is not de novo, but rather whether the trial court abused its discretion in the application of Strickland.   Webber, 2002 WL 369925 at *2; see Gill, 967 S.W.2d at 541.  We overturn the denial of a motion for new trial only if the trial court=s decision was clearly wrong and outside the zone of reasonable disagreement.  Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

B. Ineffective Assistance of Counsel: Generally

Both federal and State constitutions guarantee a defendant the right to counsel.  See U.S. Const. Amend. VI; Tex. Const. Art I, sec. 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2003).  The right to counsel means the right to effective counsel.  See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); Ex parte Gonzalez, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  When a defendant challenges his conviction or sentence based upon the ineffective assistance of trial counsel, his challenge is subject to the two-prong Strickland test: (1) whether counsel's performance fell below an objective standard of reasonableness; and, if so, (2) whether there is a reasonable probability that, but for counsel=s error, the outcome would have been different.  Strickland, 466 U.S. at 669; Thomas v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). 

In reviewing the first prong of an ineffectiveness of counsel challenge to a conviction, there is a strong presumption an attorney=s performance is encapsulated within a wide range of reasonable professional assistance.  Hernandez, 988 S.W.2d at 772.  Appellant must: (1) rebut this presumption that trial counsel is competent by identifying the acts and/or omissions of counsel that are alleged as ineffective assistance; and (2) affirmatively prove that such acts and/or omissions fell below the professional norm of reasonableness by a preponderance of the evidence.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. App. 2001). Such proof must be made on the record, affirmatively demonstrating the alleged ineffectiveness.  See McFarland, 928 S.W.2d at 500.  An ineffective assistance claim with a record silent as to trial counsel=s motivations will generally fail, as the presumption that the attorney=s conduct was reasonable has not been overcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. App. 2001) (denying ineffective assistance claim where record is silent as to why counsel did not request guilty plea withdrawn).  When, however, a motion for new trial is conducted, at which the testimony of the trial counsel is recorded, such evidence may serve as the basis for determining ineffectiveness of counsel.  Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (noting that, in the absence of a proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show trial counsel was ineffective). 

If counsel=s performance fails theAobjective reasonableness@ prong of the Strickland test, the defendant must show that the deficient performance prejudiced the defense.  Strickland, 466 U.S. at 687.  Lack of success is not sufficient to prove that the defense was prejudiced.  Id. at 699.  Rather, this Arequires showing that counsel=s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.@  Id. at 687. The prejudice must be substantial and have effected the outcome of the trial.  Id. at 696.  In a bifurcated trial, the prejudice can be at either the guilt-innocence phase or the punishment phase of the trial. Id. at 668 (applying the same two-prong approach to both the guilt-innocence and the penalty phase of a capital case); Hernandez, 988 S.W.2d 771-73 (adopting Strickland in Texas for all phases of capital and non-capital cases). 

At the guilt-innocence phase of the trial, an appellant must affirmatively prove that there is a reasonable probability that, but for the deficient performance by trial counsel, the verdict would have been different.  Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534 (2003); Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

In the punishment phase, to assess prejudice, Awe reweigh the evidence in aggravation against the totality of available mitigating evidence@ as indicated by the record as a whole.  Wiggins 539 U.S. at 534.  We then determine if the sentence given was significantly more harsh than the one that might have been given in the absence of counsel=s deficient performance.  Miller, 420 F.3d at 365.  In making this determination, we look at the minimum and maximum sentences possible under the relevant statutory guidelines, the actual sentence handed down by the judge or jury, and all aggravating and mitigating evidence available.  Id.

C. Ineffective Assistance of Counsel: Involuntary Plea

It is clearly established that an involuntary plea must be set aside.  See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2007); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-12 (1969).   AThe longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.@  Hill v. Lockhart, 474 U.S. 52, 55, 106 S.Ct. 366, 368 (1985). When a defendant enters a plea and later challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of his plea is also subject to the two-prong Strickland test articulated above: (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 error, the defendant would have insisted on going to trial. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); see also Hill, 474 U.S. at 56-58; Ex Parte Moody, 991 S.W.2d 856, 858  (Tex. Crim. App. 1999). 

A defendant=s claim that he was misinformed by counsel, without more, is insufficient to render a plea involuntary.  Tabora v. State, 14 S.W.3d 332, 334 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d).  However, if an attorney conveys erroneous information to his or her client, and the client enters a plea of guilty based upon that information, the plea is involuntary based ineffective assistance of counsel.  See Fimberg, 922 S.W.2d at 207.  In cases holding a guilty plea to be involuntary, the record must contain confirmation of the misinformation by counsel, or documents augmenting the defendant=s testimony that reveal the misinformation and show its conveyance to the defendant, and that his plea was actually induced by the alleged misinformation. See Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1999) (AMisinformation concerning a matter, such as probation, about which a defendant is not constitutionally or statutorily entitled to be informed, may render a guilty plea involuntary if the defendant shows that his guilty plea was actually induced by the misinformation.@); Tabora, 14 S.W.3d at 337.

D. Ineffective Assistance of Counsel: Sentencing

The sentencing stage of any case, regardless of the potential punishment, is often the stage at which the defendant most relies upon his attorney being effective.  See Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983).  This is all the more true where the range of punishment includes life in prison.  Milburn v. State, 15 S.W.3d 267, 269 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  In all criminal cases, after a finding of guilt by either a  judge or a jury, both parties may offer any evidence relevant to sentencing.  Rivera v. State, 123 S.W.3d 21, 30 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).  This evidence may include the defendant=s prior criminal record, character testimony, reputation testimony, or evidence of extraneous crimes or bad acts the defendant has been shown, beyond a reasonable doubt, to have committed.  Id. The trial court is required to afford the defendant the opportunity to present evidence, including character testimony and evidence of mental-health problems and other life-challenges, in mitigation of punishment.  Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon 2003). 

Trial counsel has great latitude in deciding what testimonial evidence to put forward in mitigation at sentencing, and decisions not to call certain witnesses is not a favored complaint.  Wilkerson v. Cain, 233 F.3d 886, 892-93 (5th Cir. 2000).  However, a failure to uncover and present mitigating evidence cannot be justified as a tactical decision when defense counsel has failed to conduct a thorough investigation. Wiggins, 539 U.S. at 520; Rivera, 123 S.W.3d at 31.  The choice not to put on more testimony or to put on only parts of the evidence uncovered in mitigation is similar to the choice not to investigate.  Coble v. Quarterman, 496 F.3d 430, 441-42 (5th Cir. 2007) (finding counsel=s decision not to call additional witnesses or conduct further research was reasonable).  Hence, the choices counsel makes will be deemed to be strategic, and hence deferred to, in direct proportion to the amount and depth of counsel=s investigation.  Strickland, 466 U.S. at 690-91. 

Nevertheless, information that indicates mental or emotional injury, even if not sufficient to bar prosecution under an insanity plea or due to incompetence to stand trial, may be important to reduce culpability at sentencing, and it is hard to imagine a tactical reason for not presenting such information.   Miller v. Dretke, 420 F.3d 356, 364 (5th Cir. 2005). 

III. Analysis

Appellant=s first point contends that the trial court abused its discretion when if failed to make findings of fact and conclusions of law at the conclusion of the hearing on the motion for a new trial, as allowed by the Texas Rules of Appellate Procedure, Rule 28.1. Appellant=s remaining five points contend that he was denied effective assistance of counsel at both the guilt/innocence phase of the trial and at the punishment phase of the trial.  He contends that trial counsel=s ineffectiveness harmed him in three ways: (1) it denied him a fair trial at the guilt/innocence phase of the trial; (2) it caused him to involuntarily plead guilty to the charges; and (3) it caused him to incur a significantly harsher punishment.   As a result of these deficiencies, appellant contends that the trial court abused its discretion when it denied him a new trial for guilt/innocence and a new trial for assessing punishment.

A.  Failure of Trial Court to Make Findings of Fact and Conclusions of Law

While the trial court is permitted to grant a request for findings of fact and conclusions of law at the conclusion of the hearing on the motion for a new trial, it is not required to do so. Tex. R. App. P. 28.1.  At the motion for new trial, appellant requested such findings,  reminding the court of the change in the rules that grant the court discretion to do so.  Appellant reminds us that the trial court  Amay@ file such findings and that it is now Aallowed@ to do so in juxtaposition to the previous rule.  Appellant continues, however, asking this court to make such a request binding on the trial court, pointing to other areas where a trial court is so obliged, such as in response to a motion to suppress.  Such analogy is neither germane nor consistent with the intent of the new rule, however, and we decline the offer.

 Accordingly, we overrule appellant=s first issue.

B. Involuntary Plea: Guilt-Innocence Phase of Trial

1. Failure to Investigate    

Appellant contends that Fong=s overall failure to investigate generally, and more specifically his failure to investigate appellant=s educational and mental health issues, renders his plea involuntary.^[3]  In the case before us, appellant was ultimately represented by Albert Fong, who testified that he had been retained by the family to represent appellant only a few days before trial, and that the first time he reviewed the State=s file (he alleged he never acquired a copy of Mr. Gluckman=s files because, after a conversation with him, he believed he would not be able to read the previous attorney=s files) was the day before the trial was to commence.  Fong further testified that he chose to rely on the State=s file; he conducted no additional research; he did not interview the co-defendant or the police involved in the case; and he chose not to gain a copy of the search warrant or challenge the search (having seen a copy in the State=s file he opined it looked legally sufficient).  Fong filed no pre-trial motions; made no independent investigation of the alleged charged offenses; did not delve into appellant=s educational or mental-health background; and failed to have a mental-health expert appointed.^[4]  Instead, Fong assured the family, on September 5^th or 6^th, and the lead prosecutor in the case, that he had sufficient enough time to become familiar with the case and prepare for trial.  As evidence of his confidence he even had appellant waive the statutory right to ten days preparation for trial and, subsequent to attaining the State=s file,  signed a statement to the prosecutor that he had adequately reviewed the documents therein. 

According to the prison records, Fong only met with appellant four times, three of which were in the truncated three-day period before he pled guilty to the charges.  The first meeting was on September 5^th, 2006, at approximately 2 pm (before he had been officially retained by the family).  On September 6^th he returned at approximately 10:40 am, and then again on the September 7^th at approximately 9:15 am.  Fong was unable to recall if he had retained and read the State=s file on the 6^th or on the 7^th.^[5]   Either way, on September 7^th, Fong both moved to substitute counsel and presented Appellant with three possible options for the next day=s commencement of trial (discussed below).

Fong had a duty to make an independent investigation of the facts of the case and to interview possible witnesses.  McFarland, 928 S.W.2d at 501; Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).   The United States Supreme Court has held: AStrategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.@  Wiggins, 539 U.S. at 521-22.  In other words, although no categorical requirement mandated Fong conduct an independent investigation, it did mandate that he make a reasonable decision that particular investigation was unnecessary.  Id.; Strickland, 466 U.S. at 688-89.   What is clear is that Fong conducted no investigation beyond the State=s file and his interview with appellant before preceding to counsel appellant on his trial options.  What is uncertain is the degree to which he determined, in light of his interview with appellant and the multiple confessions, that an independent investigation was unwarranted.  See Strickland, 466 U.S. at 691(noting that attorneys are entitled to rely on what their client tells them).            

This type of last-minute representation devoid of any independent research is clearly not exemplary, and might even constitute unreasonable representation.^[6]  It does not, however, invalidate his guilty plea as a matter of law. Appellant cites to Ex parte Duffy, for that proposition.  607 S.W.2d 507, 516 (Tex. Crim. App. 1980).  What he fails to note is that Ex parte Duffy was expressly overruled by Hernandez, in which the Texas Court of Criminal Appeals adopted the Strickland test. Hernandez, 988 S.W.2d at 770.  Under Strickland, Aeven if professionally unreasonable, [counselor=s errors] do not warrant setting the conviction aside@ when it appears the errors had no impact on the judgment.  Strickland, 466 U.S. at 693; Mohammed v. State, No. 14-06-00149-CR, 2007 WL 582367, at *2 (Tex. App.CHouston [14th Dist.] Feb. 27, 2007, no pet.).  Under the second prong of Strickland, A[w]e will not reverse a conviction unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced . . . [and] there is a reasonable probability that, but for counsel=s [failure to advance the defense], the result would have been different.@  See Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982); Martin v. State, CS.W.3d C, 2007 WL 2743513, * 3 (Tex. App.CHouston [1st Dist.] Sep. 20, 2007, no pet.) (citing McFarland, 928 S.W.2d at 501); Cano v. State, No. 14-06-00377-CR, 2007 WL 2872418, at *4 (Tex. App.CHouston [14th Dist.] Oct. 4, 2007, superceding opinion).

Hence, to prevail on an allegation that trial counsel failed to investigate, appellant would have to show that a decision not to do so was not a reasoned trial strategy and that there was some evidence, or that witnesses were available, which when presented would have afforded him a meaningful defense that renders the verdict unreliable.  See Wiggins, 539 U.S. at 520; Strickland, 466 U.S. at 694; see Ex Parte McFarland, 163 S.W.3d 743, 754-55 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Hernandez, 988 S.W.2d 771-73.^[7]  Appellant fails to show that, but for Fong=s failure to conduct a thorough investigation, he would have chosen not to plead guilty and would have chosen to go to trial.  See Salinas, 163 S.W.3d at 740; see also Hill, 474 U.S. at 56-58; Ex Parte Moody, 991 S.W.2d at 858.

Likewise, it is hard to see how counsel=s failure to investigate appellant=s mental or educational background renders his plea involuntary, especially as he is not trying to argue incompetence to stand trial or put on an insanity defense.^[8]  Any failure to investigate appellant=s history of mental or emotional problems, while possibly relevant to punishment as discussed below, has no apparent bearing on the voluntariness of his plea.^[9]  Hence, as any investigation of appellant=s mental health or education  is unlikely to have provided appellant a viable defense, this failure cannot have rendered his plea involuntary.  See Wiggins, 539 U.S. at 520; Strickland, 466 U.S. at 694; Ex Parte McFarland, 163 S.W.3d at 754-55; see also Thompson, 9 S.W.3d at 812; Hernandez, 988 S.W.2d 771-73.

Hence, although ordinarily a lawyer should not rely solely on the information in the State=s file, see McFarland, 928 S.W.2d at 501, it is incumbent upon the appellant to point out what would have been found if counsel had conducted his own research and how it prejudiced the defense B in this case, rendered the plea involuntary.  See Ex Parte McFarland, 163 S.W.3d at 754-55.  Appellant provides no evidence that his decision to plead guilty would have been different had Fong conducted an investigation of either the alleged offence or his mental and educational history, nor what exculpating evidence might have been found in such a search.  Hence Fong=s failure to conduct a more thorough investigation does not render appellant=s plea involuntary.

2.  Failure to Provide All Available Plea Options

Fong also contends that his plea was involuntary because he lacked the information he needed to make a voluntary plea, having been provided an insufficient breadth of choices. On September 7, Fong presented appellant with three options for the following day: (1) the right to a trial by a jury with a possible sentence of 15-99 years or life; (2) a 30 year plea agreement with the State, of which 15 years would be mandatory; and (3) the option of a guilty plea that allowed the court to ascertain the punishment following the completion of a PSI, ranging from deferred adjudication to life in prison.  

The hand-written list of options is undersigned ALarry@ next to a notation AAfter consulting w my attorney, I chose option # III.@  The record affirmatively shows that Fong presented these three options to appellant, one of which constituted going to trial and the other two requiring appellant to plead guilty either with or without the acceptance of a plea bargain.   Appellant contends that there was a fourth option available,  a plea of guilty followed by jury sentencing, and that he would have selected that option.  The evidence does not affirmatively prove that Fong did not advise appellant of Aoption 4," as the State points out, but it does reflect that Fong provided appellant with three options from which to chose, and it would be fair to assume that, given how expressly they are recorded, no other options were discussed.         The question under the first prong of Strickland, then, is whether the three options presented were sufficient to rise to the level of competent counsel.  This fact, in and of itself, is debatable. While there is a litany of complaints against Fong in regards to his preparation for trial, it is hard to determine if an attorney with more adequate preparation would have presented appellant with Aoption 4,@ because even if appellant chose to have a jury assess the punishment instead of the court, appellant fails to indicate why he believes a jury would come to a different decision than the court.  It is not at all certain that option 4 is significantly different than option 3 under the circumstances, and the jury could not have offered deferred adjudication.  However, we need not address this point because appellant=s argument fails on other grounds.  Assuming, arguendo, that Fong=s representation fell below that of reasonable counsel, there is a clear indication that Mendoza could not meet either the challenge under Tabora that appellant relied upon the misinformation in making his guilty plea or, relatedly, prong two of the Strickland test that Abut for@ the misinformation he would have chosen to go to trial.  See e.g. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991) (requiring and finding both unreasonable and prejudicial the affirmative act of offering the hope of probation where such was not, statutorily, an option in the proceeding); see also Tabora, 14 S.W.3d at 337.  The evidence of guilt in this case is overwhelming, coupled with multiple confessions, and at no time does the appellant indicate that he would have preferred a trial on innocence/guilt B appellant only intimates that he would have chosen a different format in pleading guilty.  As such, the criteria for determining that a guilty plea was involuntary, on this basis alone, is not met under these facts.

3.  Failure to Record Plea Hearing

Finally, appellant attacks the voluntariness of his plea noting the failure of counsel to have the plea hearing recorded.  This defect, usually, would be waived in the absence of an objection by trial counsel or when it is plausible that trial counsel was acting strategically.^[10] See Burroughs v. State, No. 14-97-01213-CR, 1999 WL 496972, *3 (Tex. App.CHouston [14th Dist.] July 15, 1999, no pet.).  Fong admits that the decision to forego a recording of the plea hearing was due to his lack of understanding of the appellate process, specifically he did not understand how error could be better preserved, and not due to any reasoned trial strategy.  Nonetheless, Appellant points to no error made at the plea hearing, or how a record of the proceeding would have demonstrated error.  See Burroughs, 1999 WL 496972 at *3.  Appellant signed all the admonishments required, and that serves as prima facie evidence of a voluntary confession.  See Igwe v. State, No. 14-98-00594-CR, 2000 WL 1508807, at *2 (Tex. App.CHouston [14th Dist.] Oct. 12, 2000, pet. ref=d) (noting that a written record with proper admonishments, even if no recording of hearing is made, suffices).  Hence, while Fong may have been unreasonable in not requesting the plea hearing be recorded, Appellant has made no argument of any resultant prejudice.

4.  The Plea was Voluntary       

There is little doubt that Fong=s representation was less-than stellar and arguably unreasonable, including his failure to take the time to conduct an independent investigation and his failure to have the plea hearing conducted on the record.  Wiggins, 539 U.S. at 521-22; McFarland, 928 S.W.2d at 501.  However, regardless of how objectively unreasonable Fong=s performance might have been, we cannot say that, but for trial counsel=s ineffective assistance, appellant would have insisted on going to trial.  See Ex parte Moody, 991 S.W.2d at 857-58; see also Rivera, 123 S.W.3d at 33 (noting that where the record does not make clear that defendant would not have pled guilty but for the error, no reasonable probability exists that the outcome would have been different) (Justice Hedges, concurring).  Appellant made several pleas of guilt from the time of the arrest to the time of his trial, at least in part to shield his wife from culpability, and as no evidence in the record indicates that these were invalid or that some viable defense would have resulted from an independent investigation of either the facts of the case or of appellant=s history of mental and emotional problems, any error was insufficient to overturn the conviction. 

Accordingly, we overrule appellant=s second, third, and fourth points of error. 

 C. Punishment Phase of the Trial

Appellant also asserts his trial counsel constituted ineffective assistance of counsel at the punishment phase of the trial on three grounds.  First, he alleges that trial counsel was obliged to call witnesses to testify to his good character and rehabilitative nature.  Secondly, appellant contends Fong was required to put on evidence of appellant=s poor education and history of mental health problems (including expert assessment and testimony).  Third, appellant alleges that counsel was obliged to have the sentencing hearing recorded, and that references made to Scarface during sentencing prejudiced him.  We address each of these under the Strickland test, looking first to the reasonableness of these alleged failures.

1.  Failure to Put On Character Witnesses

In preparation for the punishment phase of the trial, Fong made many decisions with regard to what mitigating evidence to present to the court, including asking Mary Salinas, Appellant=s mother, to write a letter to the judge, giving her a few reference letters to use for guidance.  He also had the defendant write up an acceptance letter which he edited in preparation for the sentencing.  In addition, Fong testified that he spoke on the phone and in his office with Wilson Brice, who came forward with a good letter that was Aon point.@  A letter was also submitted by Pamela C. Lopez, appellant=s cousin.  Fong also decided to reject some letters from friends, brought in by the family, because they simply asserted that appellant was Aour home-boy@ and that he should be allowed to return to his family because he would never put his kids in danger. 

At the sentencing hearing, however, it is uncontested that trial counsel did not call any witnesses to testify on appellant=s behalf, even though both Wilson Brice and Marie Ellen Estrada were available and in the court room during the hearing, as purported in their affidavits.  Mr. Fong stated, however, he had a reason for not calling Wilson Brice.  He testified that, though he wrote a good letter, Brice was not called because he was adversarial to the family.  See e.g Ex parte McFarland, 163 S.W.3d at 757-58 (concluding counsel was not ineffective in making a strategic decision not to call a favorable mitigation witness).

While it would be easy to find Fong=s decision not to provide testimony on appellant=s behalf at sentencing unreasonable, it cannot be said that Fong did not make some strategic choices on which evidence to present to the judge (he indicated that his sentencing strategy would center on appellant=s mental health issues, discussed below), and while trial counsel did not utilize the full arsenal available to him, he did put on some evidence in mitigation and had strategic reasons for not utilizing other evidence. See Coble v. Quarterman, 496 F.3d 430, 441-42 (5th Cir. 2007) (making a distinction between conducting no investigation/putting on no mitigating evidence and a choice to put on some, but not all, mitigating evidence).  Had he put on no mitigating evidence, his representation could be deemed unreasonable.  See Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.CHouston [1st Dist.] 2005, pet. dism=d) (finding prejudice where attorney put on no mitigating evidence and called no witnesses at all); Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.CHouston [14th Dist.] 2000, pet ref=d) (finding trial counsel ineffective for not interviewing any witnesses, conducting no investigation, and providing no mitigating testimony at sentencing). 

In this case, Fong made some choices, conducted some investigation of mitigating evidence, and then made a selection on which to put forward.  See e.g Smith v. State, No. 14-03-01174-CR, 2005 WL 646118, at *7 (Tex. App.CHouston [14th Dist.] March 22, 2005, pet. ref=d) (noting that under Strickland, choices made after reasonable investigation are virtually unchallengeable).  As such, his failure to call Wilson Brice and Marie Ellen Estrada as witnesses, or to subpoena Pamela C. Lopez, does not, in itself, constitute objectively unreasonable performance under the first prong in Strickland.

2.  Failure to Put On Expert Testimony as to Mental Health Issues

Aside from not calling character witnesses, however, appellant also contends trial counsel failed to present expert medical testimony concerning his mental-health problems. This is hard to comprehend as Fong himself indicated that his hope in getting deferred adjudication, and hence his belief that Aoption three@ of relying on the court to hand down the sentence, was centered around appellant=s mental illness.^[11] 

Fong did contact the Mental Health-Mental Retardation Authority of Harris County (MHMRA) and have them contact Appellant in the Harris County Jail to get him back on his medication.  Shortly thereafter, Fong requested Appellant=s medical records from the MHMRA, which evinced Appellant suffered from major depressive disorder and anxiety disorder.  Previous medical records also indicated that appellant had been diagnosed as schizophrenic and bi-polar, and had been placed on medication to treat these conditions.  Yet in preparation for sentencing, Fong failed to hire a medical expert or have one appointed, did not have any new evaluation of Appellant conducted by a medical expert, failed to explore further appellant=s social history or educational deficiencies, and failed to even subpoena the MHMRA treating doctor, even though expert testimony is vital to explaining the links, if any, between a criminal act and the mental and emotional illnesses of the accused.  See Miller, 420 F.3d at 363 (noting that the expert testimony might have explained the offense and give the jury such information as would have, possibly, inclined them to offer probation).

There is no evidence that these decisions were made for strategic reasons, as Fong admitted conducting no independent investigation of appellant=s background and not hiring a mental health expert for financial reasons, as the family did not have the money and he thought the court would turn down his request for an appointed mental health expert because Fong had been retained by the family.  This financial consideration does not constitute a strategic decision by counsel, as counsel had other avenues open to him to procure expert testimony under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985).  See Ex Parte Briggs, 187 S.W.3d 458, 467-470 (Tex. Crim. App. App. 2005) (concluding that counsel=s failure to subpoena treating doctors or apply for appointment of a medical expert prevented him from providing effective assistance of counsel, and noting financial reasons do not constitute strategic reasoning); see e.g. Wright v. State, 223 S.W.3d 36, 43-44 (Tex. App.CHouston [1st Dist.] 2006, pet ref=d) (finding failure to hire expert fell below reasonable assistance of counsel). Likewise, merely relying on the fact that evidence of Appellant=s mental and emotional illness and truncated educational past were available to the judge in the PSI is not a substitute for further research or expert testimony.  See e.g. Miller, 420 F.3d at 364 (noting that expert testimony, though redundant, might help to show the defendant less culpable).   In the absence of a full investigation and full development of this mitigation evidence, it cannot be said that a reasoned trial strategy controlled the decision.  Wiggins, 539 U.S. 523-28. 

This clearly amounts to objectively unreasonable performance, satisfying prong one of Strickland, given the admitted strategy to make appellant=s mental illness central to a request for deferred adjudication and offering no plausible strategy for failing to offer such evidence in mitigation. See Raines v. State, No. 02-04-500-CR, 2005 WL 1654880, at *2-3 (Tex. App.CFort Worth, July 14, 2005, no pet.) (finding no ineffective assistance where plausible strategy explained why attorney did not put on mitigating evidence of mental illness).

Given our assessment that Fong=s performance was objectively unreasonable with regard to failure to put on expert mental-health testimony, appellant still bears the burden to show that, but for counsel=s unreasonable performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694; Ex parte Gonzalez, 204 S.W.3d 391, 399 (Tex. Crim. App. 2006).  We are tasked with assessing the prejudice, and weighing the evidence in aggravation against the totality of available mitigating evidence in the record.  Wiggins 539 U.S. at 534.   In making this assessment, we look to see if the additional mitigation evidence was sufficient, taken as  a whole, to influence the trial court=s appraisal of the applicant=s moral culpability and resultant punishment.  See e.g. Ex parte Gonzalez, 204 S.W.3d at 393 (noting that the additional evidence presented at defendant=s habeas hearing, including the expert testimony of a psychiatrist, would likely have been effective if presented during the original sentencing hearing in reducing the defendant=s moral culpability in the eyes of the jury, leading to a reduced sentence).

Specifically, at the punishment phase of the trial, we look to see if there is a reasonable probability that the assessment of punishment would have been significantly less severe in the absence of defense counsel=s inadequate performance.  See Miller, 420 F.3d at 365 (adding that the range, and the relative placement within the range, are relevant considerations in light of the mitigating and aggravating evidence); Batiste, 73 S.W.3d 402, 407.  In this case, Appellant was facing 15-99 years, with the possibility of life in prison.  He received 50 years, or exactly half of that possible.  See e.g. Houston v. State, No. 03-04-00620-CR, 2006 WL 2504992, at *5 (Tex. App.CHouston [14th Dist.] Aug. 31, 2006,  ) (finding an assessment of 75% of the available punishment a difficult hurdle in proving a significantly more severe punishment had been handed down when there is evidence of guilt and no articulation of how the evidence might have induced a reduced sentence). 

The length of the term was, in part, due to pleading true to the aggravating use/exhibition of a firearm during the commission of the underlying offense of drug possession with intend to distribute.  The other pertinent circumstances were detailed by the lead prosecutor, Marcy McCorvey.  She testified that Appellant admitted full culpability before the magistrate at the probable cause hearing and again in his first appearance before Judge Anderson when represented by Deborah Keyser (his first court-appointed attorney).  McCorvey further testified that, if the case had gone to a jury, she is confident Appellant would have been sentenced to life in prison.  Her supposition is based upon the facts of the arrest: (1) there were crack cookies throughout the residence and in reach of an unsupervised toddler; (2) more crack cookies were in the oven; (3) there were drug paraphernalia throughout the residence; (4) the house was a Afortress with security devices@ indicating this was a drug dealer=s residence; (5) there were sufficient drugs of various types to indicate appellant was a dealer; and (6) there were guns everywhere, including in the dresser next to the bed and another under the bed.  In addition, McCorvey testified that appellant was on probation and wanted for a probation violation at the time of the arrest B hence appellant was a felon in possession of firearms.  As such, the state had offered a 30 year plea bargain, considering that a more lenient punishment than a jury would have administered after a full trial (the sworn affidavit of Marie Ellen Estrada noted that Fong believed a jury would assess punishment at 60 years to life).

The Judge passed down sentence in light of this evidence, along with a fully admonished guilty plea, and such evidence as was offered in mitigation, including the PSI and the three letters Fong submitted.  In this case, there is no allegation that the information contained in the PSI, and before the judge, was incorrect.  Appellant failed to carry his burden to come forward with new mitigation evidence that demonstrated that there is a reasonable probability that the judge would have handed down a significantly reduced sentence had it been admitted in mitigation.  See Rivera, 123 S.W.3d at 32 (noting that prejudice can only be shown where sufficient new evidence would have tipped the scales in defendant=s favor). 

In this case, there is some evidence of what was not offered, including testimony of a medical expert as to the impact of Appellant=s mental illness and expert testimony as to his limited educational aptitude.  While it is clear trial counsel failed to fully conduct an investigation and failed to develop appellant=s mental illness history and educational deficiency, appellant has failed to provide any explanation of how this might have changed the result of the sentencing, especially as the judge did have the PSI in front of him and was  aware that appellant had little education and some history of mental illness already.  See e.g. Starr v. State, No. 13-99-381-CR, 2000 WL 34253854, at *3 (Tex. App.CCorpus Christi April 13, 2000, no pet.) (noting that when the judge had the medical reports before him, it cannot be said with certainty that psychiatric testimony would have changed the result); see also Batiste v. State, 73 S.W.3d 402, 409 (Tex. App.CDallas, 2002, no pet.) (noting that when a determination of guilt is made on many different grounds, understanding the impact of one piece of evidence is impossible); Asher v. State, No. 14-06-00539-CR, 2007 WL 853824, at *2 (Tex. App.CHouston [14th Dist.] March 22, 2007, pet. ref=d) (noting that when a claimant makes the allegation that counsel should have put on additional testimony, he bears the burden to demonstrate what that testimony would have shown and how it would have been helpful to him) .

3.  Failure to Have the Sentencing Hearing Recorded

Finally, appellant alleges that trial counsel=s performance was objectively unreasonable when he failed to have the sentencing hearing recorded, also alleging that prosecution=s reference to Scarface during its closing remarks prejudiced appellant=s sentencing.  It is uncontested that the sentencing hearing went unrecorded, and in support of Fong=s recollection that the term Scarface was used by the prosecution, the unsworn affidavit of appellant and two sworn affidavits of other witnesses corroborate the claim.  As noted above, failure to record a plea hearing is waived where counselor fails to object.^[12]   In this ineffective assistance of counsel charge, the record is silent why Fong did not request to have the hearing recorded, and hence  the presumption that trial counsel was reasonably effective remains.  See Burroughs , 1999 WL 496972 at *3 .  In addition, even if we were to find Fong=s failure to have the hearing recorded constituted ineffective assistance of counsel, and the record reflected that the prosecutor did in fact make reference to Scarface, appellant would still have to prove prejudice.  See e.g.  Ex Parte McFarland, 163 S.W. 3d at 759 (finding complainant failed to show the objectionable comment prejudiced the jury=s determination of punishment).  For the same reasons that we found above, appellant has not demonstrated that this single reference caused the court to assess a stiffer penalty than it would otherwise have done.

We therefore conclude that there is no reasonable probability, sufficient to undermine our confidence in the outcome of the case, that but for the deficient performance of trial counsel, the result of the proceedings would have been different.  See Briggs, 187 S.W.3d at 470 (quoting Hill, 474 U.S. at 59-60). 

Accordingly, we overrule appellant=s fifth and sixth points of error.

IV. Conclusion

Accordingly, the judgment of the trial court affirmed.

/s/        Paul C. Murphy

Senior Justice

Judgment rendered and Memorandum Opinion filed June 12, 2008.

Panel consists of Chief Justice Hedges, and Justices Anderson and Murphy.^*

Do not publish C Tex. R. App. P. 47.2(b).

---

^[1]           See Tex. Code Crim. Proc. Ann. art 1.051(e) (mandating ten days to prepare for a proceeding but allowing a waiver of such); see also Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (noting error with regard to 1.051(e) is subject to harm analysis).

^[2]           Appellant contends that, as part of his guilty plea, Fong agreed to try to have the judge withhold an affirmative finding of a deadly weapon.  There is nothing in the record indicating that appellant ever used or displayed the guns found in his home during his arrest.  Nonetheless, appellant does not indicate that Fong was ineffective for failing to adequately counter the aggravating paragraph to which he pled true as part of his guilty plea.

^[3]           The code of criminal procedure requires the trial court to admonish a defendant, either orally or in writing, before accepting a guilty plea in a felony case.  Tex. Code Crim. Proc. Ann. Art 26.13(a) (Vernon Supp. 2003).  While the guilty plea was not recorded, the record does contain the admonishments made by the court, and as such there is a prima facie showing that the plea was entered voluntarily and knowingly.  Grays v. State, 888 S.W.2d 876, 878 (Tex. App.CDallas 1994, no pet.)

^[4]           Fong testified that he thought previous counsel, Mr Gluckman, has possibly filed a motion to suppress, but he could not really remember.

^[5]           Fong did not visit with appellant again, excepting his trial date on the 8^th, until October 16^th.

^[6]           But see Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986)(conceding the many defects in counsel=s representation, but finding representation reasonable in light of the fact that counsel talked to family and the defendant and reviewed the State=s file); see also Scheanette v. State, 144 S.W.3d 503, 509-510 (Tex. Crim. App. 2004) (noting how difficult it is to find representation unreasonable for inaction when the record does not detail the reason for the inaction). 

^[7]           Appellant also criticizes his trial attorney for not filing any pretrial motions.  This, however, does not categorically constitute ineffective assistance of counsel without some evidence of how this decision hurt the defendant.  Martin, 2007 WL 2743513 at *5.  Hence, while appellant challenges Fong=s failure to challenge the search warrant or move to suppress evidence in the case, he provides no viable argument on how these might have been successful.  To the contrary, all evidence points to the fact that the search warrant was legally sound and the evidence garnered was untainted by any constitutional violation.

^[8]           See Wilkerson, 726 S.W.2d at 551 (finding counselor=s failure to demand a competency hearing or put on an insanity defense reasonable where defendant appeared to understand the charges and cooperated with his attorney and no evidence indicated he was insane at the time he committed the crime); Miller, 420 F.3d at 364 (noting that even when no insanity plea or incompetency claim are being made at the guilt/innocence phase of a trial, evidence of mental health problems help reduce culpability at sentencing).

^[9]           Pena v. State, No. 14-06-00637-CR, 2007 WL 3287868, at *8 (Tex. App.CHouston [14th Dist.] Nov. 6, 2007, pet. filed) (noting appellant=s defense was one of accident, and it was unclear how the records would have been relevant to that defense such that reversal was mandated).  

^[10]         Tex. R. App. P. 33.1(a); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Nicolas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).

^[11]         Fong=s contention, however, that his strategy was centered upon Appellant=s mental illness is problematic.  While he suspected some educational deficiency at the time he advised Appellant on the three options before him, he did not become fully aware of the depth of his mental illness or educational deficiencies until he received the MHMRA evaluation over a month later.

^[12]         Tex. R. App. P. 33.1(a); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Nicolas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).

^*           Senior Chief Justice Paul C. Murphy sitting by assignment.