Opinion
01-21-00012-CR
03-01-2022
ROBERT WILLIAM MOORE, Appellant v. STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1672800
Panel consists of Justices Goodman, Landau, and Countiss.
MEMORANDUM OPINION
Sarah Beth Landau Justice
Pursuant to a plea agreement, Robert William Moore pleaded guilty to third-degree felony theft and was sentenced to six years' confinement. Moore filed a Motion to Vacate Guilty Plea and Reinstate Not Guilty Plea, which the trial court 1 denied. Moore appeals that denial and argues that the trial court abused its discretion in denying Moore's motion for a new trial due to ineffective assistance of counsel. We affirm.
The trial judge treated this as a motion for new trial.
I. Background
Moore was indicted for the felony offense of theft. The indictment alleged that "on or about April 24, 2020, [Moore] did then and there unlawfully, appropriate by acquiring and exercising control over property, namely, a loader," owned by the complainant, "of the value of at least [$30,000] and less than [$150,000], with the intent to deprive the Complainant of the property." The State also alleged that Moore had prior felony convictions for delivery of cocaine and possession of a controlled substance.
The trial court appointed an attorney to represent Moore. Seven months later, Moore entered into a plea agreement where, in exchange for pleading guilty, the State would abandon one of the sentencing enhancement paragraphs, dismiss a separate case, and recommend a sentence of six years' confinement. The trial court certified that Moore's case was a plea-bargain case, so Moore had no right of appeal.
Moore later filed a Motion to Vacate Guilty Plea and Reinstate Not Guilty Plea without the assistance of counsel. The trial court and parties agreed that Moore's motion should be treated as a motion for new trial. The trial court then conducted a hearing on the motion. Moore was physically and virtually unavailable, 2 so Moore's appellate counsel informed the trial court that Moore consented to waive his appearance so that the proceeding could occur within the 75-day timeframe for a motion for new trial hearing. Tex.R.App.P. 21.6. Moore contended that his plea was not made voluntarily and knowingly because of ineffective assistance of counsel. At the hearing, trial counsel testified about his role.
After considering the testimony and arguments presented, the trial court denied Moore's motion for new trial. The trial court then permitted Moore to appeal the denial of the motion for new trial.
II. Standard of Review
We review the denial of a motion for new trial under an abuse-of-discretion standard. Najar v. State, 618 S.W.3d 366, 371 (Tex. Crim. App. 2021). A trial court is afforded almost total deference on fact finding, and the evidence is viewed in the light most favorable to the trial court's ruling. Id. (citing Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013)). A trial court abuses its discretion only if no reasonable view of the record could support its ruling. Id. If there are no express findings, the reviewing court must presume all findings in favor of the prevailing party. Id. We will uphold the trial court's ruling unless it falls outside the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). 3
A guilty plea must be made knowingly, intelligently, and voluntarily. Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008); Tex. Code Crim. Proc. art. 26.13(b). "A plea of guilty is not knowingly and voluntarily entered if it is made as a result of ineffective assistance of counsel." Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). A claim of ineffective assistance may be raised in a motion for new trial. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009).
To obtain relief for ineffective assistance of counsel, the appellant must show that (1) counsel's representation was deficient and (2) that counsel's errors prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 688-94 (1984). The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The appellant must overcome a "strong presumption that [trial] counsel's conduct fell within the wide range of reasonable professional assistance" and that trial counsel's conduct constituted sound trial strategy. Id. To establish trial counsel's deficiency, the appellant must show by a preponderance that trial counsel's representation fell below an objective standard of reasonableness. Smith, 286 S.W.3d at 340. To establish prejudice, the appellant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. 4
The first prong of an ineffectiveness claim need not be addressed first. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. An appellant's failure to satisfy either prong of the ineffectiveness claim negates a court's need to consider the other prong. Id.
III. Ineffective Assistance of Counsel
In two issues, Moore asserts that he received ineffective assistance of counsel when trial counsel (1) failed to obtain and inspect Moore's statement to the police and the video showing other people stealing the property, and (2) failed to track the status of Moore's parole hold in a prior case and how it could affect Moore's ability to obtain a bond in this case. As a result, Moore asserts that he was "coerced, manipulated and lied to by counsel and was forced into pleading guilty."
First, the State argues that all of Moore's claims must fail because the allegations were not before the trial court because the motion for new trial was not introduced into evidence at the hearing. A motion for new trial is not self-proving. Lamb v. State, 680 S.W.2d 11, 13 (Tex. Crim. App. 1984). "Motions for new trial . . . are mere pleadings unless offered and admitted in evidence." Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.-Austin 2000, pet. ref'd). That said, pleadings authorize the introduction of supporting evidence. See Walker v. State, 440 S.W.2d 653, 659 (Tex. Crim. App. 1969). 5
Here, there was evidence introduced at the hearing to support the pleadings, the testimony of trial counsel. While the motion for new trial itself was not evidence before the trial court, the testimony of trial counsel was. Given the evidence and the arguments of counsel, the issues were before the trial court.
A. Failure to obtain and inspect discovery
Next, we consider Moore's claim that trial counsel failed to review Moore's statement to the police and the video showing others stealing the property.
The State argues that the issue was not preserved for appellate review because it was not in Moore's motion for new trial. Not so. This issue appears in Moore's motion for new trial as "5) Defendant repeatedly told counsel he was innocent and did not commit the crimes, telling investigators and his attorney who the real perpetrators were and was told by investigators there was video of the perpetrators committing the crimes," and it was argued by appellate counsel at the hearing on motion for new trial. The issue therefore was before the trial court and, as a result, it was preserved for our review on appeal. See Tex. R. App. P. 33.1(a).
Moore argues that trial counsel was deficient because he failed to review critical evidence, specifically Moore's statement to police and the video recording of the theft. Moore adds that the deficiency is more significant because he maintained his innocence when discussing the case with trial counsel. 6
Trial counsel testified that, because Moore discussed with him that Moore was not the person that "actually stole" the items-a van and a Bobcat-he explained that there are various ways one can be held responsible for theft in Texas. In fact, trial counsel stated that he explained at least six times how Moore could be legally culpable for the theft. Trial counsel also testified that Moore was found inside or next to the van, and that after being read his Miranda rights, Moore admitted to disabling the GPS unit in the Bobcat, and that he helped sell the van and the Bobcat.
Miranda v. Arizona, 384 U.S. 436 (1966).
Trial counsel admitted that he never obtained a recording of Moore's statement to the police but that the statement was in the police report he reviewed and discussed with Moore. Trial counsel testified that in Moore's statement to the police he admitted disabling the GPS in one of the stolen items, and that he knew the van and the Bobcat were stolen. Trial counsel testified that he reviewed the discovery he had been given access to which included: the offense report, the body cam footage, the 911 calls, the notes of the conversation between the State and the Complainant, and the two separate indictments stemming from this incident. Trial counsel testified that the discovery he reviewed showed that Moore had been read his Miranda rights by the police and that Moore waived those rights and chose to speak to the police. Moreover, trial counsel testified that Moore never told him that he had been coerced and instead confirmed that he had been read his Miranda rights. 7 Trial counsel added that the investigator appointed to the case also discussed these matters with Moore and that trial counsel reviewed the reports prepared by the investigator.
As for the video of the theft, trial counsel testified that he knew the video depicted other people physically stealing the items, that he informed Moore about the video, and that he had requested, but not yet received, a copy of that video by the time the plea was entered. Trial counsel also added that the supplemental police reports noted that Moore was not seen in the video of the theft. Trial counsel added that D. Montoya, the person who took the Bobcat from the company that owned it, was found in Moore's vehicle when police arrested Montoya. And trial counsel testified that Moore's backpack was inside the stolen van when the police arrived. Trial counsel also testified that he had ongoing negotiations with the State that included an initial offer of 25 years' confinement, a subsequent offer of 15 years' confinement, and a final offer of six years' confinement along with dropping an enhancement paragraph and dismissing a separate pending case.
We look to the totality of the representation and the circumstances of each case in evaluating counsel's effectiveness. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). "'[J]udicial scrutiny of counsel's performance must be highly deferential' with every effort made to eliminate the distorting effects of hindsight." Id. (quoting McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 8 1992)). A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. Id. at 483. Here, trial counsel showed a clear understanding of the facts and the applicable law, and he conveyed to Moore how they could affect him. Trial counsel explained how Moore could be held liable for theft based on the facts of the case; he reviewed the evidence turned over to him until then; he requested a copy of the video of the theft; he obtained an investigator for Moore's case and reviewed the investigator's reports; he discussed the evidence with Moore; and he engaged in plea negotiations that led to multiple offers that decreased the length of confinement with each offer. And trial counsel denied that Moore stated that his statement to the police was coerced.
When ruling on a motion for new trial, a trial court has the right to accept or reject any part of a witness's testimony. Najar, 618 S.W.3d at 371. Moore had to overcome a "strong presumption that [trial] counsel's conduct fell within the wide range of reasonable professional assistance" and that trial counsel's conduct constituted sound trial strategy. Thompson, 9 S.W.3d at 813. Trial counsel testified and detailed his strategy, but Moore failed to put on sufficient contravening evidence. So Moore failed to overcome the presumption before the trial court. Viewing the evidence in the light most favorable to the trial court's ruling, we presume that the trial court implicitly found that trial counsel was not deficient and 9 that there was no reasonable probability that the result of the proceedings would have been different. See Najar, 618 S.W.3d at 371 (discussing how when there are no express findings, we must presume all findings in favor of the prevailing party). Moore has failed to show how the trial court's ruling was unreasonable. We will only reverse the trial court's ruling when no reasonable view of the record supports it. Id.; see Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). Without sufficient contravening evidence, we cannot say that the trial court's ruling was unreasonable or outside the zone of reasonable disagreement. See id. ("We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable."). Taken altogether, we conclude that the trial court did not abuse its discretion in denying the motion for new trial on ineffective assistance of counsel for failing to review Moore's statement to the police and the video showing others stealing the property.
B. Failure to properly investigate eligibility for bond
Lastly, we consider Moore's ineffective assistance of counsel claim about trial counsel's failure to keep apprised of the status of Moore's parole hold and how it could affect Moore's ability to obtain a bond. Moore argues that trial counsel's failure to check the status of Moore's parole hold, despite knowing Moore was actively seeking to get the hold lifted so he could obtain a bond in his theft case, 10 establishes ineffective assistance of counsel because Moore would have insisted on a trial if he had obtained a bond.
Trial counsel denied telling Moore that the trial court would not reset Moore's case and that his only options were to accept the State's offer or set his case for trial. Trial counsel testified how he engaged in plea negotiations with the State but denied ever telling Moore that if Moore did not accept the plea offer that the case would be set for trial. Trial counsel knew Moore had a parole hold during the theft case and that Moore was trying to get that hold removed to obtain a bond in this case. And trial counsel testified that at one point the trial court lowered Moore's bond upon counsel's motion, but the parole hold remained. That said, trial counsel admitted that he did not check on the status of Moore's parole hold, which had been lifted, the day of the plea or two weeks before the plea date.
According to trial counsel's testimony, his primary focus was getting the best possible plea offer from the State because Moore faced anywhere from 25 years to life confinement. Based on the discovery and information obtained, trial counsel testified that Moore could have been charged with other various state-jail felonies with punishment ranges of two to 20 years' confinement. Trial counsel testified that he reviewed the plea agreement with Moore and that Moore understood the plea agreement before signing it. 11
To show that trial counsel's failure to check the status of Moore's parole hold was ineffective assistance of counsel that led Moore to plead guilty where he otherwise would not have, Moore must show that trial counsel failed to act as a reasonably competent attorney would have under the circumstances. See Ex parte McFarland, 163 S.W.3d 743, 753 (Tex. Crim. App. 2005), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). Moore had to overcome a "strong presumption that [trial] counsel's conduct fell within the wide range of reasonable professional assistance" and that trial counsel's conduct constituted sound trial strategy. Thompson, 9 S.W.3d at 813.
Trial counsel testified that he did check on the status of Moore's parole hold and that he sought a lower bond for Moore in the theft case, but that, given the circumstances, his primary focus was getting Moore the best possible offer that he could. Most importantly, Moore presented no evidence to show that he would have not pleaded guilty but for trial counsel's failure to know Moore's parole hold status and any potential bond that could have been obtained in the theft case. While it may have been preferable for trial counsel to discover that Moore's parole hold had been lifted, not being aware of that change in status is not conduct "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Again, Moore failed to put on sufficient contravening evidence to overcome the presumption before the trial court. 12
Viewing the evidence in the light most favorable to the trial court's ruling, we presume that the trial court implicitly found that trial counsel was not deficient and that there was no reasonable probability that the result of the proceedings would have been different. See Najar, 618 S.W.3d at 371. Again, Moore has failed to show how the trial court's ruling was unreasonable. We will only reverse the trial court's ruling when no reasonable view of the record supports it. Id. at 371; see Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). Without sufficient contravening evidence, we cannot say that the trial court's ruling was unreasonable or outside the zone of reasonable disagreement. See Webb, 232 S.W.3d at 112. Thus, we conclude that the trial court did not abuse his discretion in denying the motion for new trial on Moore's second issue.
IV. Conclusion
We therefore hold that Moore has failed to establish that the trial court abused its discretion in denying Moore's motion for new trial. We affirm the trial court's order denying the motion for new trial. 13