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Moore v. State

Court of Appeals of Texas, Fourteenth District

June 6, 2019


          On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1489433.

          Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.


          Kem Thompson Frost Chief Justice.

         In this ineffective-assistance-of-counsel appeal following the denial of a motion for new trial, appellant Robert Ray Moore asserts that his trial counsel rendered ineffective assistance by (1) failing to investigate appellant's intellectual capacity, (2) not pursuing a competency examination, (3) failing to communicate with appellant about the "guilty" plea in a way appellant could understand and giving misleading advice about appellant's chances of probation, (4) failing to put on mitigating evidence at the punishment hearing, and (5) failing to inform, advise, and prepare appellant with respect to his testimony at the punishment hearing. We affirm.

         I. Factual and Procedural Background

         Appellant was charged with assaulting his common-law wife, the complainant, by impeding her breathing. A criminal proceeding ensued, culminating in appellant's "guilty" plea and an eight-year prison sentence.

         Plea and Sentencing Hearing

         Appellant waived his right to a jury trial and pleaded "guilty" without a plea bargain or recommended sentence from the State. Five months later, after a presentence investigation ("PSI") report, the trial court held a punishment hearing at which appellant's counsel urged the court to order probation so that appellant could seek therapy. The complainant and other supporters endorsed the request. The State advocated for prison time, relying on appellant's past assaults of the complainant and evidence that appellant violated bond conditions first revealed during the complainant's testimony at the punishment hearing.

         The trial court admitted without objection the PSI report offered by the State and three character-reference letters offered by appellant. The State called the complainant, who testified as follows:

Q. [C]an you tell me what __ tell the Judge what you told me about why you came here today? What do you think should happen in this case?
A. I came here today to testify for [appellant] just to let you-all know that I don't think he deserves to go to jail, any jail time. Because I have been knowing [appellant] since I was a teenager, and he __ I believe that he just needs some guidance, some help. He is not a bad person. He takes __ he takes care of all five of my children. I'm currently unemployed right now, so that leaves him the responsibility financially to take care of the kids, and I'm depending on him. I have been depending on him to take care of them. He is a very good dad. He helps out with the kids a lot, and I just believe that he needs a little guidance. Because he is not a bad person at all. Robert is not a bad person. He is a very __ he is a very good guy.

         During her testimony, the complainant revealed that she recently had resumed regular contact with appellant and that they were "on the same page with the co-parenting" of their five children. In testifying, she acknowledged appellant's past bad conduct but stated that she had noticed that appellant's behavior and habits have changed dramatically, that "he is growing up."

         The PSI report contained information about appellant's troubled social history, indicating that despite a good relationship with both of his parents, growing up he often was unhappy because he was in trouble frequently. Corporal punishment was the usual form of disipline in his household. The PSI report states that his parents had abused alcohol and had been on welfare, that he had trouble with schoolwork, "was assigned to special education classes all through school," and that he wished his parents had pushed him more in school. The report indicates that appellant had sporadic employment and problems finding a stable job because he is illiterate. The report also contains information about appellant's criminal history, including the following:

On January 26, 2011, [appellant] attempted to gain entry to the complainant's apartment by kicking in her front door. When his attempts were unsuccessful he attempted to gain entry through a locked window.
On February 20, 2011, [appellant], while a passenger in an automobile, pointed a gun at Houston Police officers as they drove past him. [Appellant] was arrested and pled guilty to a lesser offense.
On July 24, 2012, [appellant] was convicted of family violence assault.
On November 23, 2012, [appellant] was convicted of assaulting the complainant.
On May 17, 2013, [appellant] was in a vehicle with the complainant, who was pregnant, and one of her children. They got into an argument and [appellant] began to drive erratically and dangerously. The [appellant] stopped the car, dragged the complainant out of the car onto the ground where he assaulted her.
On November 24, 2014, [appellant] called the complainant multiple times before showing up at her grandmother's house and banging on her door. [Appellant] left, but not before he turned off the power to her grandmother's house. [Appellant] then called and threatened to kill the complainant if she called the police. During his call, [appellant] told the complainant she and her children were going to "sweat tonight."
On March 31, 2015, [appellant] used [the complainant's] car and took her to work. When he arrived to pick her up, he was aggressive and angry. [Appellant] then pushed the complainant to the ground, cursed at her and threatened to get a gun and shoot her brother.
On April 4, 2015, [appellant's] sister reported she feared for her safety because she was afraid [appellant] was going to turn off her breaker box and set her house on fire.

         The charged offense at issue in this appeal occurred on November 15, 2015. Among eight instances of criminal conduct described in the PSI report, the State asked the complainant about only appellant's two prior assault convictions, for which she was the complainant. In addition to discussing these episodes the complainant also testified about the circumstances of the assault at issue. According to the complainant, shortly before the assault, appellant's father died, and appellant had been drinking heavily as a result. She stated that appellant had "blacked out," and that it appeared to her that he did not know what he was doing until the incident was over. She testified that appellant started crying and left with their son, who had witnessed the assault.

         After the State rested, appellant called his longtime friend Dedrick Nash, who testified that he had spent significant time around appellant and appellant's children in the six or seven months leading up to trial and noted appellant's involvement in positive activities.

         Appellant testified about his mental health and his desire to seek anger management treatment. At the close of the hearing, the trial court assessed punishment at eight years' confinement. Speaking to the complainant, the judge simply stated, "I really - I'm concerned ma'am, that he is going to really hurt you."

         Motion for New Trial

         Appellant retained new counsel and moved for a new trial, arguing his "guilty" plea was involuntary and unknowing due to his intellectual disability and the ineffective assistance of his prior counsel.

         Appellant's former counsel testified at the motion-for-new-trial hearing, stating:

• Counsel first learned of appellant's illiteracy during the sentencing hearing, and had he known this information he would not have recommended a "guilty" plea before first seeking a competency evaluation.
• Appellant's mother had told counsel that appellant had been in special classes, that counsel knew appellant "was slow," "just not how slow," and that appellant's mental health was the subject of an investigation that petered out after appellant's mother and the complainant advised appellant the records were not recoverable.
• Counsel would have handled aspects of the representation differently had he known that appellant was illiterate.

         Appellant also offered, without objection, the affidavit of Rebecca Hamlin, Ph.D., PC, who attached her psychological evaluation report. The report contained the results of her testing, her diagnoses, and her opinions expressed through her retrospective assessment of factors affecting appellant's ability to participate during his trial. In the report Dr. Hamlin notes appellant's IQ score of 61, which "would place [appellant] in the extremely low range of intellectual functioning." Dr. Hamlin also notes that appellant's overall level of functioning was "adequate to engage counsel in a reasonable and rational manner[, ]" but that [appellant's] limited verbal abilities "would necessitate assistance with any written materials, simplified explanations, and frequent checks for clarity."

         Appellant also filed a five-sentence affidavit in which he stated:

I trusted my lawyer.
My lawyer told me to plead guilty.
He said I would get probation.
He never told me I would have to take the stand.
Now I wish I did not plead guilty.
At the conclusion of the hearing, the trial court denied the motion for new trial.

         II. Issues and Analysis

         Appellant asserts that he was denied his right to effective assistance of counsel. Both the United States Constitution and the Texas Constitution guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 1.051 (West, Westlaw through 2017 1st C.S.). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92. To have a court set aside a defendant's "guilty" plea as involuntary based on the deficient performance of defendant's trial counsel in advising the defendant regarding the "guilty" plea, the defendant must prove a reasonable probability that, but for trial counsel's deficient performance, the defendant would not have pleaded "guilty." See Lee v. U.S., - U.S.-, -, 137 S.Ct. 1958, 1965, 198 L.Ed.2d 476 (2017); Miller v. State, 548 S.W.3d 497, 499-500 (Tex. Crim. App. 2018). The appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

         A reasonable probability is one sufficient to undermine confidence in the outcome. Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). In determining whether an appellant has been prejudiced by counsel's deficient performance, the court "must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695. But, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696.

         An appellate court reviews a trial court's denial of a motion for new trial for an abuse of discretion, reversing only if no reasonable view of the record could support the trial court's ruling. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). This is a deferential standard of review that requires appellate courts to view the evidence in the light most favorable to the trial court's ruling. Id. We must presume that the trial court disbelieved evidence supporting appellant's ineffective-assistance claims. See id. at 821. In determining whether the trial court abused its discretion, an appellate court must not substitute its own judgment for that of the trial court, and it must uphold the trial court's ruling if it is within the zone of reasonable disagreement. Id. at 820.

         A. The trial court did not err in impliedly concluding appellant did not prove prejudice from trial counsel's failure to pursue a competency examination.

         In his second issue, appellant argues that that trial counsel was ineffective for not pursuing a competency examination in advance of appellant's pleading "guilty." We presume for purposes of analysis that appellant's counsel's decision not to request a competency examination fell below an objective standard of reasonableness (based on prevailing professional norms), and we address the second prong under Strickland. Under this prong, appellant must show a reasonable probability that he would have been found incompetent to stand trial if the issue of competency had been raised and fully considered. Ex parte LaHood, 401 S.W.3d 45, 54 (Tex. Crim. App. 2013); see Strickland, 466 U.S. at 695. Anything less than a finding of incompetence cannot have changed the outcome. See Ex parte LaHood, 401 S.W.3d at 54.

         A person is presumed to be competent, and the burden rests on a criminal defendant to prove incompetency by a preponderance of the evidence. Tex. Code Crim. Proc. art. 46B.003(b) (West, Westlaw through 2017 1st C.S.); Ex parte LaHood, 401 S.W.3d at 54. To prove incompetency there must be some affirmative showing that the person lacked "sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding" or "a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. art. 46B.003(a). To prevail in a claim of ineffective assistance of counsel in this context, appellant must prove that but for his trial counsel's deficient performance, there is a reasonable probability that the fact- finder would have found him incompetent to stand trial. See Ex parte LaHood, 401 S.W.3d at 54. In this type of analysis, courts consider the factors used by the experts in evaluating the broader question of competency, which include whether a defendant can

(1) understand the charges against him and the potential consequences of the pending criminal proceedings; (2) disclose to counsel pertinent facts, events, and states of mind; (3) engage in a reasoned choice of legal strategies and options; (4) understand the adversarial nature of criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify.

Ex parte LaHood, 401 S.W.3d at 54. Dr. Hamilin's expert report addresses each of these factors in her interview with appellant:

(1) Appellant stated he was charged with "assault," that he "could get probation or county time;" that his lawyer led him to understand that if he pled "guilty" he would get probation but that the judge told him there was no ...

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