Appeal from the 184th District Court Harris County, Texas
Trial Court Cause No. 1489433.
consists of Chief Justice Frost and Justices Zimmerer and
Thompson Frost Chief Justice.
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.
Factual and Procedural Background
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.
and Sentencing Hearing
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
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
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.
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."
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
On July 24, 2012, [appellant] was convicted of family
On November 23, 2012, [appellant] was convicted of assaulting
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.
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
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.
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."
for New Trial
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.
former counsel testified at the motion-for-new-trial hearing,
• 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
• 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
• Counsel would have handled aspects of the
representation differently had he known that appellant was
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
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.
Issues and Analysis
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).
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
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.
The trial court did not err in impliedly concluding appellant
did not prove prejudice from trial counsel's failure to
pursue a competency examination.
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.
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
(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
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 ...