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Ex Parte Vanover

Court of Appeals of Texas, Fifth District, Dallas
May 25, 2004
No. 05-04-00080-CR (Tex. App. May. 25, 2004)

Opinion

No. 05-04-00080-CR

Opinion Filed May 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MC03-1-6586-C. Affirm.

Before Justices WRIGHT, O'NEILL, and FRANCIS.


OPINION


Jacqueline Diane Vanover filed an application for writ of habeas corpus in the trial court challenging her conviction for stalking. Following a hearing, the trial court denied appellant the relief she sought. In two issues, appellant claims the trial court erred in denying her relief because trial counsel failed to advise her of a plea bargain offer and appellate counsel failed to inform her of the availability of discretionary review. We affirm the trial court's order.

Background

After appellant pleaded not guilty to a misdemeanor stalking charge, a jury found appellant guilty of the charge and assessed punishment ninety days in jail, probated for one year, and a $500 fine. Appellant appealed, complaining among other things, that trial counsel was ineffective in not preparing for trial and failing to notify appellant of a plea bargain offer by the State. We affirmed the trial court's judgment. See Jacqueline Diane Vanover v. The State of Texas, No. 05-01-00831-CR (Tex. App.-Dallas July 23, 2002, no pet.) (not designated for publication). Our mandate issued on November 4, 2002. On July 3, 2003, appellant filed an application for writ of habeas corpus in the trial court, raising the same ineffective assistance of counsel claims regarding trial counsel and an additional complaint that appellate counsel did not inform appellant of the right to file a petition for discretionary review. In the application, appellant specifically relied on the testimony presented at the motion for new trial hearing that was reviewed in her direct appeal. Additionally, the trial court conducted a hearing on the application for writ of habeas corpus. At the motion for new trial hearing, Michael French, the complainant, testified that he had spoken with the prosecutor about the case before the trial, and the prosecutor had discussed offering appellant a plea bargain for deferred adjudication. French also testified he informed the prosecutor that he did not want to proceed with the case and he signed an affidavit of non-prosecution. The prosecutor had indicated to French the case would probably be dismissed, and French conveyed that information to appellant. The case, however, was not dismissed. Appellant testified at the motion for new trial hearing that her attorney told her the case would "be very easy to dismiss." Appellant discussed the facts of the case with her attorney. At no point did her attorney inform her of the State's plea bargain offer. Trial counsel Pat Robertson testified at the motion for new trial hearing that the prosecutor had conveyed a plea bargain offer of "some sort of deferred with psychiatric involvement." However, for months they had been told the case would be dismissed. Robertson further testified that even though there had been a setting for a plea, appellant never intended to plead because they intended to see the case was dismissed. Appellant was the only witness to testify at the habeas corpus hearing. She again testified that trial counsel never informed her the State had made a plea bargain offer. She learned of the offer while appellate counsel was going through the papers in the case. In response to counsel's question of whether she would have accepted a plea bargain offer to deferred adjudication, appellant responded, "Absolutely." She further testified on cross-examination that she would have taken a plea agreement if she was told what it was. Appellant further testified that appellate counsel never informed her about filing a petition for discretionary review after this Court issued its opinion. To the contrary, she believed her attorney was taking care of matters. She learned about the discretionary review procedure when speaking with new counsel about post-conviction alternatives.

Applicable Law

In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam). We will uphold the trial court's ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial judge's rulings on "'application of law to fact questions,'" if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of those ultimate questions turns on an application of legal standards, we review the determination de novo. Id. To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that: (1) counsel's performance fell below the standard of prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 695 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. See Thompson, 9 S.W.3d at 812. Allegations of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See id. at 813. Moreover, appellate scrutiny of trial counsel's performance must be highly deferential to avoid the deleterious effects of hindsight. See id.

Failure to Convey Plea Bargain Agreement

In her first issue, appellant complains the trial court erred in determining she received effective assistance of counsel because trial counsel failed to communicate a plea bargain offer. The State contends that appellant's complaint is not cognizable because it was reviewed and rejected on direct appeal. "[S]pecific allegations of deficient attorney performance that were rejected on direct appeal are not cognizable on habeas corpus as part of larger ineffective assistance of counsel claim when the defendant does not offer additional evidence to support that specific claim of deficient performance in a habeas proceeding." Ex parte Nailor, No. 1109-03, 2004 WL 574634, at *3 (Tex.Crim.App. Mar. 24, 2004). Appellant's complaint regarding trial counsel's failure to communicate a plea bargain offer was raised, addressed on the merits, and rejected in appellant's direct appeal from her conviction. See Vanover, No. 05-01-00831-CR, slip op. at 8-9. We concluded that because the record showed the State had made at least one plea bargain offer and defense counsel did not notify appellant of any offers, appellant met the first prong of Strickland Id. We further held there was no evidence appellant would have accepted the plea bargain offer had it been communicated to her, and, in fact, the record reflected the opposite. Id., slip op. at 9. We resolved the issue against appellant. We will assume, without deciding, that appellant's testimony at the habeas corpus hearing that she would have accepted the offer constitutes "new evidence" as contemplated by Nailor, and will address the merits of the complaint. The motion for new trial testimony reflects that appellant, French, and Robertson wanted the case dismissed. French did not want to prosecute, and Robertson testified that they had every intention of getting the charge dismissed. At the habeas hearing, appellant testified she would have accepted a plea bargain offer of deferred adjudication had she been made aware of it. Faced with this conflicting testimony, we cannot say the trial court abused its discretion in concluding appellant did not meet her burden of showing the result would have been different. We resolve appellant's first issue against her.

Failure to Inform of Right to File Petition for Discretionary Review

In her second issue, appellant claims appellate counsel was ineffective because she was not, in a timely fashion, advised of her right to file a petition for discretionary review. Appellant was the only witness to testify at the habeas hearing regarding this issue, and the trial court denied appellant relief. Appellant essentially claims that because her testimony was uncontroverted, the trial court abused its discretion in denying her relief. However, as sole trier of fact and judge of credibility, the trial court is free to believe even uncontroverted testimony. See State v. Ross, 32 S.W.3d 853, 857 (Tex.Crim.App. 2000). Appellate counsel must inform a defendant of the result of the direct appeal and the availability of discretionary review. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam). In this case, appellant's testimony that she was never informed of the availability of discretionary review, if believed, would compel granting her relief. See id. Therefore, we must conclude that in reaching its decision, the trial court made a credibility determination against appellant on the issue of whether she was informed of her right to file a petition for discretionary review. See Ross, 32 S.W.3d at 857. Such a finding was within the trial court's role as the sole judge of the credibility of the witness. See id. We resolve appellant's second issue against her. We affirm the trial court's order denying appellant the relief sought by her application for writ of habeas corpus.


Summaries of

Ex Parte Vanover

Court of Appeals of Texas, Fifth District, Dallas
May 25, 2004
No. 05-04-00080-CR (Tex. App. May. 25, 2004)
Case details for

Ex Parte Vanover

Case Details

Full title:EX PARTE JACQUELINE VANOVER

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: May 25, 2004

Citations

No. 05-04-00080-CR (Tex. App. May. 25, 2004)