Opinion
01-19-00487-CR
08-10-2023
LINDAPONE PHANPRASA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1470812
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
MEMORANDUM OPINION
SARAH BETH LANDAU JUSTICE.
Appellant Lindapone Phanprasa pleaded guilty to aggravated kidnapping without an agreed recommendation as to punishment, and a judge sentenced her to 60 years' confinement. In a single issue on appeal, Phanprasa contends the trial court should have granted her a new trial because her retained trial counsel provided unconstitutionally ineffective assistance in the guilty-plea and punishment proceedings. Because we conclude the trial court did not abuse its discretion by denying Phanprasa a new trial, we affirm.
Background
In separate indictments, Phanprasa was charged with the aggravated kidnapping and capital murder of Sarah "Cassie" Nelson. The kidnapping indictment alleged that, in May 2015, Phanprasa "intentionally and knowingly" abducted Cassie and threatened to use deadly force during the offense by using and exhibiting a deadly weapon, "namely, a firearm." The capital murder indictment alleged that Phanprasa intentionally caused Cassie's death while abducting her.
Phanprasa pleaded guilty to aggravated kidnapping before Judge B. Hill, who determined that the plea was voluntary and made with the advice of Phanprasa's retained trial counsel. As a condition of the plea, Phanprasa agreed that Judge R. Clark-the presiding judge in the capital murder trials of two co-defendants who participated in the kidnapping-would conduct the punishment hearing and take judicial notice of the testimony in the co-defendant trials. Phanprasa and the State also agreed that, in exchange for this condition and the kidnapping plea, the capital murder charge against Phanprasa would be dismissed. And it was.
After a presentence investigation (PSI) and punishment hearing, Judge Clark sentenced Phanprasa to 60 years' confinement for the aggravated kidnapping. Although trial counsel had not withdrawn his representation, Phanprasa filed a pro se notice of appeal. After she was appointed new counsel for the appeal, Phanprasa moved for a new trial, arguing, among other things, that trial counsel's performance was unconstitutionally deficient because he did not communicate with her, misunderstood her denials of legal responsibility for the kidnapping, and did not investigate or identify critical information about her culpability. This deficient performance, she said, resulted in an involuntary guilty plea and an increased punishment.
When no appellant's brief was filed, this Court abated the appeal for the trial court to determine whether Phanprasa still wished to pursue the appeal, whether trial counsel had abandoned the appeal, and whether she was entitled to appointed counsel because she is indigent. The trial court appointed new appellate counsel.
The State's case
Cassie was kidnapped twice in one week after she and Phanprasa tried to facilitate a deal between two groups of drug dealers. As part of the deal, Cassie and her acquaintance, "Lucky," agreed to sell marijuana to Phanprasa for $70,000. But Lucky stole the money and never provided the marijuana. Phanprasa and others blamed Cassie and demanded that she settle the debt.
Phanprasa and one or both of her co-defendants-Santhy Inthalangsy and Amalinh "Animal" Phuthavong-held Cassie at Phanprasa's house for several hours until she agreed to give them a boat in her possession to compensate them for their loss. The group released Cassie. But when they discovered a title problem prevented them from selling the boat, they went looking for her.
The group tried to find Cassie in a couple of places before learning from another acquaintance, "Monk," that Cassie and her boyfriend were staying at F. Garza's home. Because Monk had his own activity planned with Garza, he led Phanprasa, Santhy, and Animal to Garza's house. Phanprasa drove Santhy and Animal in her SUV, and Monk drove separately in his own car. When he arrived at Garza's house, Monk parked on the street. Garza came outside and got into Monk's car, and the two began smoking marijuana.
While Monk and Garza smoked marijuana, Phanprasa parked in Garza's driveway. Santhy and Animal got out of Phanprasa's SUV, opened the rear hatch, rummaged around, gestured toward their waistbands, and went inside the house. There, they found Cassie and her boyfriend Kris "Jimmy" Maneerut. Santhy or Animal fatally shot Jimmy. They returned to Phanprasa's SUV with Cassie, seating her between them in the back seat. Phanprasa drove away.
Homicide Detective M. Jones investigated Jimmy's death. When he learned that two male suspects led Cassie away from Garza's home after the shooting, Jones treated Cassie's disappearance as a kidnapping. The next day, fishermen found Cassie's body in some underbrush beside the San Jacinto River. She had been shot and was deceased. Jones's investigation led him to Phanprasa, who was arrested on an unrelated warrant and gave a statement to police about Cassie's kidnapping the same day.
Santhy and Animal were also arrested and charged. In separate trials, each was convicted of capital murder for Jimmy's death in the course of Cassie's kidnapping and sentenced to life in prison without parole. See Inthalangsy v. State, No. 14-18-00205-CR, 2022 WL 54997, at *4 (Tex. App.-Houston [14th Dist.] Jan. 6, 2022, no pet.) (mem. op., not designated for publication) (affirming Santhy's conviction for capital murder for shooting Jimmy during Cassie's kidnapping); Phuthavong v. State, No. 01-17-00420-CR, 2018 WL 6215992, at *8 (Tex. App.- Houston [1st Dist.] Nov. 29, 2018, pet. ref'd) (mem. op., not designated for publication) (same as to Animal).
Phanprasa's pre-plea statements to police
Phanprasa gave multiple statements before she pleaded guilty. On the day she was arrested, and before she retained trial counsel, Phanprasa was interviewed by Detective Jones. Three months later, on September 29, 2015, she gave another statement to Detective Jones when trial counsel was present. She was interviewed again on October 12, 2015, to determine if she could identify individuals in a photo array. And on May 22, 2017, she met with prosecutors to proffer her likely testimony in her co-defendants' capital murder trials.
Phanprasa ultimately did not testify against either Animal or Santhy.
In these statements, Phanprasa made several admissions:
• she arranged the initial drug deal;
• she thought she was going to be kidnapped after the deal went awry and was not let out of Animal's sight;
• she drove herself, Animal, and Santhy to find Cassie;
• she needed to find Cassie "because it's either me or her";
• she was present when Cassie was found and brought to her SUV;
• while she was waiting in the SUV and Animal and Santhy were inside Garza's house, she heard a loud noise that she did not know was a gunshot;
• she overheard Animal tell Garza to "clean up the mess" at his house;
• she drove herself, Cassie, Animal, and Santhy back to her house;
• she knew that "the Mexicans" were coming to her place to speak to Cassie about the title to the boat; and
• she was present when the "the Mexicans" later left with Cassie.
But Phanprasa also claimed that it was not anybody's plan to abduct Cassie from Garza's house, that she did not realize Cassie was being abducted, and that she was "innocent" or "didn't do it."
Phanprasa's guilty plea
In April 2018, Phanprasa pleaded guilty to aggravated kidnapping. The plea paperwork admonished Phanprasa that she was charged with aggravated kidnapping, which is a first-degree felony punishable by "life or any term of not more than 99 years or less than 5 years." Phanprasa added her signature to statements acknowledging that she understood the charges against her and confessed that "they are true." By her signature, Phanprasa also agreed that trial counsel had "properly represented" her and that she had "fully discussed th[e] case with him." She was admonished that if she pleaded guilty "without an agreed recommendation and request[ed] that the Court order a [PSI]," there was "no guarantee of any particular punishment" and she would have limited appellate rights. Phanprasa judicially confessed:
The appellate record does not include a transcript of the plea proceeding.
I further state that I have read the indictment/information filed in the case and that I committed each and every allegation it contains. I am guilty of the offense alleged, as well as lesser included offenses. I swear to all of the foregoing and I further swear that all testimony I give in this case will be the truth, the whole truth, and nothing but the truth, so help me God.
For his part, trial counsel certified that he believed Phanprasa had executed the judicial confession "knowingly and voluntarily after [he] fully disclosed it and its consequences to [her]." And Judge Hill certified that she had admonished Phanprasa of the consequences of her plea and found the plea was entered knowingly, voluntarily, and after consulting with counsel. Per Phanprasa's agreement with the State, the matter was referred for a PSI.
PSI report
The PSI report detailed Phanprasa's statements to the PSI writer about Cassie's kidnapping. Phanprasa told the PSI writer that Santhy ordered her to drive him and Animal to Garza's house. She thought they were going to get the boat title so that they could make a copy at Kinko's. But when Santhy came out of Garza's house with Cassie, he told Phanprasa to drive to her house and not ask any questions. Then, back at her house, Phanprasa locked herself in a bedroom. She claimed the last time she saw Cassie, Cassie was alive in the back seat of Phanprasa's SUV.
The PSI report recited Phanprasa's prior criminal history, which included charges for driving while intoxicated in 2004 (community supervision), theft of property between $50 and $500 in 2008 (dismissed), failure to identify herself to a peace officer in 2009 (dismissed), and theft of property between $1,500 and $20,000 in 2011 (still pending at the time of the report).
The PSI report also included information on Phanprasa's history of substance abuse. Phanprasa began drinking alcohol as a teenager and later, as an adult, abused Xanax, cocaine, methamphetamines, and marijuana. Although she graduated from high school, Phanprasa did not finish college because she drank too much and missed too many classes. Phanprasa attributed both theft priors to drug use. She told the PSI writer that she was on Xanax for the first theft charge. She was charged a second time for theft after she used a stolen check to pay rent because she spent her own money on cocaine. Although Phanprasa had worked as an executive assistant, she could not hold that job because of drug use. Phanprasa described her peer group as including other drug users, and she acknowledged associating with "street gang" members, though she denied belonging to a gang herself.
The PSI report noted that Phanprasa had taken steps toward sobriety in jail and was participating in some pro-social activities, even if she still displayed "significant criminal attitudes." The report concluded that Phanaprasa "expressed no remorse" for Cassie, did not accept responsibility for Cassie's kidnapping, and instead blamed her illegal drug use for what happened.
Punishment hearing
Judge Clark conducted a sentencing hearing, as agreed. Without objection, he admitted the PSI report and took judicial notice of the evidence from the co-defendants' capital murder trials. Additionally, three witnesses testified: (1) Jimmy's mother, (2) Detective Jones, and (3) Phanprasa.
The State used Detective Jones's testimony to highlight inconsistencies in Phanprasa's statements to police and the PSI writer. For instance, Detective Jones testified that Phanprasa did not tell him that she went to Garza's house to get the boat title. Instead, she told him they were looking for Cassie. Detective Jones also recalled that Phanprasa told him that she last saw Cassie when the "the Mexicans" took Cassie from Phanprasa's house, not when she drove Cassie to the house.
In her own punishment-hearing testimony, Phanprasa attributed any inconsistencies in her statements to miscommunications or a lack of specificity. She also spoke about her drug use. She explained that she used drugs to cope with childhood sexual abuse and other abusive relationships. Asked if she blamed drugs for her involvement in Cassie's kidnapping, Phanprasa responded:
I think blame is the wrong word. I blame myself because I'm the one [who] was on those drugs, but I just didn't know any other way to cope other than to be on drugs. And so when you're on meth, it has these long-term effect and it takes weeks. I think it took me months to finally even get a thought in my head straight because you kind of don't know what's what.
Phanprasa admitted that she began selling drugs-methamphetamine, marijuana, and anything else that was available-about six months before the kidnapping, when she lost her executive assistant job. She sold the drugs to cover her own habit. Phanprasa agreed that people involved in the drug trade are sometimes dangerous. When the drug deal with Cassie went awry, the people whom Phanprasa was trying to buy for expected her to make it right. She agreed to work off her half of the debt, but Cassie still owed the other half. Animal was sent to help her find Cassie. Phanprasa knew when they found Cassie that both Animal and Santhy had guns. After Animal and Santhy went into the house, she heard a "loud bang like if you were to hit a steel fence." But she denied that Animal and Santhy escorted Cassie out of the house and to the SUV. Phanprasa said that when she drove away from Garza's house, Santhy was in the front with her, and Cassie was in the back seat with Animal. Cassie was not wedged between Animal and Santhy. Phanprasa admitted that she saw three men, including two whom she knew to be drug dealers, pick Cassie up from her house.
While Phanprasa apologized to Jimmy's mother in her testimony, acknowledging that she was involved in the drug deal and that her actions hurt "a lot of people," she stated that she did not expect that Jimmy would get shot.
The morning I had left the house, we didn't know that Jimmy was over there. . . . I knew Cassie was there, and . . . it was my understanding that we were just gonna go and get a title to a yacht that she had. I never knew that we were picking her up. I didn't know that the guys were gonna go into this house. I didn't know that a murder was going to be committed. That was not my intention when I left the house that morning, and I wasn't given any knowledge about it.
Judge Clark asked Phanprasa whether she believed she was "a victim in this whole deal." Phanprasa answered that she did have some fault because her "poor decisions" led her to believe that she "could sell drugs and do something illegally as opposed to getting a real job," and then those decisions "put a lot of people's lives in danger." The exchange continued:
JUDGE: . . . What did you think was gonna happen when one of the drug dealers gets ripped off and you're in the middle of . . . this deal and they're involving you to go look for her with somebody who is a
gang member . . . and they got guns, what did you think was gonna happen?
PHANPRASA: I wasn't thinking, sir.
JUDGE: That's not an answer. . . .
PHANPRASA: I didn't believe that that would happen that day. Had I known it would happen, I never would have -
JUDGE: What do you think happens in the drug trade with drug dealers when they get ripped off? Do people get killed?
Put it on the record, you're nodding to me. Put it on the record there. What's your answer?
PHANPRASA: Yes, sir, people get killed.
JUDGE: So . . . you're just an innocent victim in this whole deal?
PHANPRASA: No, sir, I'm not innocent. I'm not a victim. Honestly, I did not know. I knew some of them were bad people.
Phanprasa's trial counsel presented some mitigating evidence through letters of support from Phanprasa's mother, Phanprasa's brother, the father of Phanprasa's child, three of Phanprasa's friends, and a substance abuse counselor in re-entry services for the Harris County Sherriff's Office. Trial counsel also offered certificates from the programs Phanprasa completed while she was in custody.
After considering the evidence and arguments, including the State's closing argument that Phanprasa was not taking responsibility for the kidnapping, Judge Clark announced Phanprasa's 60-year sentence. He also made a deadly weapon finding that Phanprasa either used or exhibited a firearm during the offense or knew that a firearm would be used or exhibited.
New trial proceedings
Phanprasa appealed her conviction and, through newly appointed appellate counsel, moved for a new trial, contending that trial counsel's representation was unconstitutionally deficient because he failed to communicate with her and failed to investigate the charges against her. A third judge-Judge A. Smith-presided at the evidentiary hearing on the motion.
Phanprasa presented her view that she had consistently stated-in each police interrogation, her DA proffer, her PSI interview, and her punishment testimony- that she did not know Cassie was being abducted when she drove Cassie, Santhy, and Animal away from the Garza house. Instead, Phanprasa believed she was bringing Cassie back to her home to transfer the boat title-nothing else was supposed to happen. She claimed that trial counsel subjected her to repeated police or prosecutor interrogations without appreciating the legal significance of her denials-that she did not have the scienter for the charged offenses. Trusting trial counsel's advice, she accepted the State's plea deal without being made aware that (1) her judicial confession would conflict with her prior statements denying that she intentionally or knowingly kidnapped Cassie, and (2) other evidence might support her lack of scienter, such as testimony from the co-defendant trials that Garza also misidentified the sound of the gunshot that killed Jimmy and that neither Garza nor Monk feared for Cassie's safety when she left with Phanprasa and the others.
Phanprasa testified that, after she pleaded guilty, trial counsel did not meet with her or otherwise prepare her for the PSI or the punishment hearing. And because she was not prepared and did not understand that she had judicially confessed to having intentionally or knowingly kidnapped Cassie, she continued to deny responsibility at sentencing.
Phanprasa subpoenaed trial counsel's file in anticipation of the new trial hearing, but trial counsel could not locate the file. Trial counsel testified that he was retained after Phanprasa gave her first statement to police, which he believed confessed the elements of the aggravated kidnapping and severely implicated Phanprasa in Cassie's murder. He reviewed the discovery provided by the State, discussed the evidence with Phanprasa, communicated with Phanprasa's family, and hired an investigator for the limited purpose of finding "the Mexicans." But trial counsel did not: obtain a mitigation expert; independently interview any of the State's witnesses; issue any subpoenas; file any motions, including to suppress Phanprasa's statements or obtain discovery; or research any case law.
Trial counsel wanted to bring information about "the Mexicans" to the State to encourage leniency for Phanprasa. Nothing came of that effort.
In trial counsel's view, he was not preparing for a trial. Asked about his strategy for the case, trial counsel answered:
A. The strategy of cooperating and securing a situation where [the State] would dismiss the capital murder and to go deal with the aggravated kidnapping.
Q. And that strategy was to limit her exposure?
A. Correct.
Q. To remove the possibility of a capital murder conviction, right?
A. Yes.
Q. And to place her in a position regardless of a sentence in she ended up with light at the end of the tunnel with parole.
A. Yes.
Trial counsel did not obtain the records of the co-defendants' trials before he agreed Judge Clark could take judicial notice, but he listened to some of the evidence in Animal's trial because he was present at the courthouse in anticipation that Phanprasa might testify. He knew that the co-defendant trials had resulted in capital murder convictions with life sentences.
Asked whether he thought Phanprasa was guilty of aggravated kidnapping, trial counsel answered that he believed Phanprasa was under "a great amount of pressure to solve th[e] issue with the boat, the dope[,] and all the parties involved." Looking back, trial counsel agreed that duress could have been a potential defense. But in his opinion, Phanprasa was not likely to prevail on any defense.
Trial counsel testified that he discussed with Phanprasa her plea and whether she would testify at the punishment hearing. Although he did not recall the specific details of those discussions, he said that his normal practice is to tell his clients to be truthful, sincere, and to accept responsibility when they testify. And that advice would have been consistent with his strategy to minimize Phanprasa's exposure through cooperation. If Phanprasa had requested a trial, he would have changed course. But Phanprasa never made that request. He agreed to have Judge Clark sentence Phanprasa because he believed Judge Clark might view Phanprasa as less culpable than her co-defendants since Judge Clark had presided over those trials.
Trial counsel acknowledged Phanprasa's consistency in her claim that she went looking for Cassie about the boat and not to kidnap her. Trial counsel did not recall whether he discussed with Phanprasa the legal effect of her denials. Asked whether the "disconnect" between what Phanprasa had admitted in her statements and what the charges required had registered with him, trial counsel answered "no."
Phanprasa hired M. Miller, an attorney board-certified in criminal appeals, to give expert testimony in support of her ineffective assistance claim. Miller opined that several failures made trial counsel's overall performance deficient:
• he did not seek a bond;
• he did not move for funding for an investigation or mitigation expert or file anything else on Phanprasa's behalf;
• he did not move to suppress Phanprasa's first, post-arrest statement to police even though Phanprasa may have been intoxicated;
• he presented Phanprasa for her second police interview before he had all discovery in the case;
• he did not raise a duress defense;
• there were gaps in his communication with Phanprasa at critical stages of the case, including for six months before the punishment hearing;
• he did not tell Phanprasa that her guilty plea differed from her previous statements; and
• he did not prepare Phanprasa for her punishment testimony and should have warned her that waffling on her guilty plea would be counterproductive.
Trial court's findings
Judge Smith denied Phanprasa's motion for new trial and made extensive findings of fact and conclusions of law, including several on the credibility of the witnesses and the weight of the evidence. The judge found that Phanprasa had not proven her claim that trial counsel was deficient for failing to communicate about her cases because, among other things, trial counsel "frequently visited [Phanprasa] in the Harris County jail while her cases were pending." When trial counsel visited Phanprasa in jail, he "gave her case updates, explained the evidence against her, explained the results of the investigation, counseled her on her options, and answered her questions."
Based on jail records, the trial court found that trial counsel visited Phanprasa individually seven times between July 2015 and October 2017. And from signatures on case reset forms, the trial court found that trial counsel was with Phanprasa at seven court settings, including the April 2018 plea date.
The judge found that Miller's criticism of trial counsel for Phanprasa's failure to take responsibility at the punishment hearing was "misplaced" because trial counsel "counseled the defendant accordingly but [Phanprasa] did not execute [his] advice." The judge found that Phanprasa's "minimization was characteristic of earlier statements." And while trial counsel gave credible testimony about his communications with Phanprasa and her family, Phanprasa did not.
The judge also determined that Phanprasa's guilty plea was voluntary. The judge stated that Phanprasa's claim that she did not understand her guilty plea was not credible because: (1) Judge Hill admonished Phanprasa on the charge, the range of punishment, and the consequences of her plea; (2) Phanprasa could read and write; (3) Phanprasa attended some college; and (4) Phanprasa understood the factual circumstances of her case. Additionally,
[Phanprasa's] initial statement to the police placed herself as the origin of the murders (i.e., the drug deal); . . . and she actively participated in hunting down Cassie at multiple locations until Cassie was found, placed into [Phanprasa's] car, brought back to [Phanprasa's] house, and then handed over to "the Mexicans." The result of [Phanprasa's] actions, along with the co-defendants' actions was both Cassie and her boyfriend Jimmy being murdered. The Court finds incredible the entire claim that her plea is involuntary. [Phanprasa] is an individual who was able to be accepted into the University of Texas; able to become an executive assistant; and perhaps most telling, able to not only survive but truly navigate the sophisticated and dangerous waters of the Houston narcotics underworld. She also has some previous exposure in
the criminal justice system. The claim that she did not understand an alleged distinction between what she was claiming her role was in the offense and what she was pleading guilty to make her plea involuntary is not credible.
On Phanprasa's claim that trial counsel failed to investigate, the judge noted that trial counsel "was not preparing for a trial" because he was pursuing a strategy of leniency and cooperation to get rid of the capital murder charge. The judge also determined that Phanprasa had not shown that additional investigative efforts by trial counsel would have made a difference.
Under conclusions of law, the judge determined:
• Phanprasa and trial counsel "agreed that [Phanprasa's] primary concern with the disposition of her cases was whatever was the best chance for her to get out to see her daughter . . . . [Trial counsel] negotiated an agreement where [Phanprasa's] capital murder case was dismissed in return for a guilty plea to an aggravated kidnapping. Additionally, [Phanprasa] was aware at the time of her guilty plea that her two co-defendants had been found guilty of capital murder and been sentenced to life without parole . . . . [Phanprasa] fails to show that she would not have plead guilty but would have insisted on a trial."
• Phanprasa "fails to show that [trial counsel's] conduct fell below an objective standard of reasonableness; that but for the alleged deficient conduct of trial counsel, there is a reasonable probability that the result of the proceeding would have been different."
• Phanprasa "fails to show ineffective assistance of counsel due to a failure to investigate because the defendant fails to show what further investigation of the facts of her case by trial counsel would have revealed."
• Judge Hill "properly admonished [Phanprasa], and therefore, a presumption arises that [Phanprasa's] plea was voluntarily entered. . . . There is a presumption of regularity concerning guilty pleas which [Phanprasa] fails to overcome. . . . Since [Phanprasa] fails to
overcome the presumption of regularity created in the trial court records, [she] fails to show that her plea was involuntary."
• Phanprasa "fails to show that but for [trial counsel's] alleged errors, she would not have pleaded guilty to aggravated kidnapping and would have insisted on going to trial on both her aggravated kidnapping and capital murder cases."
• Phanprasa "has failed to shoulder her burden of proof on her claim that trial counsel rendered ineffective assistance of counsel in connection with the entry of her guilty plea."
• "Although not alleged within the motion for new trial, with respect to [trial counsel's] failure to file motions, such as a motion to suppress [Phanprasa's] first statement [to police] based on alleged intoxication, [Phanprasa] fails to show that such motions would have been successful."
• "With respect to [Phanprasa's] failure to call witnesses allegation, [Phanprasa] has failed to show that their respective testimonies would have been of such benefit, in light of all of the evidence, that the result of the proceeding would have been different."
Standard of Review
A defendant may move for a new trial based on ineffective assistance of counsel. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). When she does so, we review the trial court's ruling on the motion for an abuse of discretion. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by Tex. R. App. P. 21.8(b), as stated in State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007); Caballero v. State, Nos. 01-19-00878-CR, 01-19-00879-CR, 2023 WL 2718466, at *9 (Tex. App.-Houston [1st Dist.] Mar. 31, 2023, no pet. h.). We will reverse only if the trial court's decision is arbitrary or unreasonable. Charles, 146 S.W.3d at 208; Starz v. State, 309 S.W.3d 110, 118 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd).
The trial court decides, in the first instance, whether the defendant carried her burden as to the elements of her ineffective assistance claim. Odelugo v. State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014). The trial court may accept or reject any part of a witness's testimony. Id. Indeed, as the factfinder and judge of the credibility and weight of the evidence, the trial court may disbelieve any of the assertions upon which the ineffective assistance claim rests, "so long as the basis for that disbelief is supported by at least one 'reasonable view of the record.'" Id. (quoting Charles, 146 S.W.3d at 208). This is true even if the State does not controvert the evidence the defendant presents. Odelugo, 443 S.W.3d at 137 . Because ineffective assistance claims involve "mixed questions of law and fact" that often involve "subsidiary questions of historical fact, some of which may turn upon the credibility and demeanor of witnesses," an appellate court should not reverse the new trial ruling unless it was clearly erroneous and arbitrary, such as when no reasonable view of the record supports it. Id. (quoting Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012)).
Ineffective Assistance of Counsel
Phanprasa contends that she involuntarily pleaded guilty to aggravated kidnapping and received an increased sentence because she received ineffective assistance from trial counsel. According to Phanprasa, trial counsel misunderstood her denials of culpability and, consequently, failed to investigate the charges against her and identify critical information for potential defenses. Additionally, he recommended that Phanprasa plead guilty without admonishing her that her previous statements denying she intended to abduct Cassie, or knew Cassie would be abducted, would be inconsistent with her plea. Without the admonishment, Phanprasa continued to deny legal responsibility for the offense at the punishment hearing, leading the judge to conclude that she refused to accept blame and to impose a longer sentence.
A. Legal standard
A defendant has a right under the United States and Texas constitutions to the effective assistance of counsel in criminal prosecutions, including guilty-plea proceedings. U.S. Const. amend. VI; Tex. Const. art. 1, § 10; see Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) (considering whether applicant was entitled to habeas relief because ineffective assistance of counsel rendered his guilty plea involuntary). It is not a right to errorless counsel but rather to objectively reasonable representation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To show unconstitutionally ineffective assistance of counsel, the defendant must meet the two-pronged test in Strickland v. Washington, 466 U.S. 668 (1984). She must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that the outcome would have been different but for her counsel's unprofessional errors. Id. at 669; Lopez, 343 S.W.3d at 142. The Strickland prongs do not have to be analyzed in a particular order. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
Our evaluation of whether trial counsel's performance was unconstitutionally deficient under Strickland must acknowledge Phanprasa's guilty plea. The exercise of counsel's duty to advise his client about what plea to enter should be based on an adequate investigation of the facts or a reasonable decision that an investigation was unnecessary. Ex parte Harrington, 310 S.W.3d at 458 (noting counsel must have firm command of facts before he may render reasonably effective assistance); see Ex parte Dennis, 665 S.W.3d 569, 574 (Tex. Crim. App. 2022) ("One necessary facet of professional assistance is the investigation of the facts and law applicable to a case."). When counsel's representation falls below this standard, any resulting guilty plea is involuntary. Ex parte Harrington, 310 S.W.3d at 458-59. Counsel's effectiveness must be evaluated based on the totality of the representation and the particular circumstances of each case. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Here, Phanprasa pleaded guilty to aggravated kidnapping. She does not dispute that she was properly admonished before entering her plea. See Tex. Code Crim. Proc. art. 26.13; see also Labib v. State, 239 S.W.3d 322, 332 (Tex. App.- Houston [1st Dist.] 2007, no pet.) ("A record that indicates that the trial court properly admonished the defendant presents a prima facie showing that the guilty plea was made voluntarily and knowingly."). As part of the plea, she signed and initialed forms taking responsibility for the crime. She signed her name below statements that she understood the charges against her, that she had "read the indictment/information," that she "committed each and every allegation it contains," and that her plea was "freely and voluntarily made." The signed judicial confession also included the statement, "I am guilty of the offense alleged[.]" Phanprasa swore to the truth of the statement.
When a defendant "challenges the validity of a plea entered upon the advice of counsel, contending that [her] counsel was ineffective, the voluntariness of the plea depends on (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 errors, [s]he would not have pleaded guilty to the charged offense and would have insisted on going to trial." Ex parte Harrington, 310 S.W.3d at 458 (cleaned up); see Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (when defendant enters plea and later challenges voluntariness of that plea based on ineffective assistance, voluntariness of plea is subject to Strickland test). A defendant who attests when she enters her guilty plea that she understands the nature of her plea and that it is voluntary has a heavy burden on appeal to show that the plea was involuntary because of ineffective assistance. Labib, 239 S.W.3d at 332.
B. Failure to communicate
Phanprasa argues that her burden on appeal to show a failure to communicate is satisfied by three "indisputable" facts: (1) she "repeatedly and uniformly denied scienter for the offense of aggravated kidnapping"; (2) trial counsel "should have been aware that [she] was denying responsibility"; and (3) he "never talked with her about her denials of scienter." From these facts, Phanprasa says, we must infer that trial counsel's communication was deficient because he did not admonish Phanprasa that her guilty plea conflicted with her claim that she never expected Cassie to be kidnapped. Additionally, Phanprasa says, we must infer that trial counsel did not warn her about the adverse consequences of denying responsibility because he, himself, never viewed her statements as denials. We disagree.
"A trial court is not bound to believe a particular fact unless it is conclusively established." Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021) (facts may be conclusively established by agreed stipulation or "indisputable video evidence," and if they are, appellate court may disregard any inconsistent trial court findings). On a motion for new trial, "if there are 'at least two' plausible interpretations of the evidence, it is within the trial court's exclusive purview to decide which interpretation to believe." Id.
Contrary to Phanprasa's suggestion, the evidence that trial counsel did not discuss scienter with her is not conclusive. Phanprasa testified at the new trial hearing that neither her mental state at the time of the kidnapping nor the intent required to prove the indicted offenses came up when she talked to trial counsel. In Phanprasa's view, the trial court had to believe her testimony because trial counsel corroborated it. But he did not. Trial counsel did not say affirmatively that he and Phanprasa never discussed scienter. He testified only that he could not remember whether they had that discussion. Trial counsel explained that because of the passage of time (four to seven years), he could not recall some of the specific details of his representation, and he could not refresh his memory because the case file had been misplaced. The trial court found this testimony credible. See Odelugo, 443 S.W.3d at 137 (trial court is sole judge of credibility of witnesses).
The trial court found that trial counsel's "current inability to locate his complete file for the hearing [did] not reflect his representation of [Phanprasa] at the time."
Trial counsel's testimony that he did not register any disconnect between Phanprasa's story and the mens rea elements of the indicted offenses is also not conclusive evidence of a failure to communicate. Even if that testimony could support an inference that trial counsel misunderstood Phanprasa's denial of culpability, trial counsel also testified that he talked to Phanprasa about what happened more than once, and he recognized her claim that she did not expect Cassie to be kidnapped. It was the trial court's prerogative to resolve any inconsistencies in trial counsel's testimony. See id.
In contrast, the trial court expressly did not find Phanprasa's testimony about her communications with trial counsel credible. See id. Even if Phanprasa's testimony was uncontroverted, the trial court could disbelieve it. See Najar, 618 S.W.3d at 372 (distinguishing uncontroverted facts from undisputed facts and affirming that deferential standard of review for new trial motions makes trial court "the exclusive judge of the credibility of the evidence, regardless of whether the evidence is controverted," and that trial court's ruling will be reversed only if it is "arbitrary or unsupported by any reasonable view of the evidence").
Other evidence showed a record of multiple visits and communications between Phanprasa and trial counsel. The trial court found that trial counsel "frequently visited [Phanprasa] in the Harris County Jail while her cases were pending," based on attorney visitor logs; that trial counsel and Phanprasa were present together at numerous court settings, based on their signatures on case reset forms; and that they also communicated by phone and letter. Trial counsel said that in these meetings he and Phanprasa talked not just about the evidence and the charges, but also would have talked about the plea and its consequences, as the admonishments certified. See Odelugo, 443 S.W.3d at 137 (trial court is sole judge of credibility of witnesses). Even though the jail records did not show trial counsel meeting with Phanprasa between the plea and punishment, trial counsel said that he talked to Phanprasa about testifying at the punishment hearing both before and after she entered her plea. Although he did not recall the specific details of the conversation, he testified that his "normal practice is to be forthcoming, truthful, you know, accepting her actions and being sincere when she speaks and me questioning." And there was some evidence that trial counsel had counseled Phanprasa before the punishment hearing because, as the trial court observed, Phanprasa was prepared to address the differences in her pre-plea and PSI statements. The trial court thus could reasonably conclude trial counsel had counseled Phanprasa, but she did not execute his advice.
In sum, a reasonable view of the record of the totality of trial counsel's representation supports the trial court's conclusion that his communication with Phanprasa did not fall below an objective standard in counseling her to plead guilty and take responsibility at her sentencing hearing. We therefore hold the trial court's refusal to grant a new trial based on trial counsel's alleged failure to communicate was not an abuse of discretion.
C. Failure to investigate
Phanprasa also argues that trial counsel was ineffective because he made no effort to investigate her case or present mitigating evidence.
Considering Strickland's prejudice prong first, we note that when a defendant challenges the ineffectiveness of her counsel for failure to investigate the facts on a guilty plea, counsel's decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App.2005) (quoting Wiggins v. Smith, 539 U.S. 510, 521-22 (2003)). "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 466-67; McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (quoting Strickland, 466 U.S. at 691). Again, when there is a plea, a defendant must show a reasonable probability that, but for counsel's errors, she would not have pleaded guilty and would have gone to trial. Briggs, 187 S.W.3d at 469 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). This assessment depends largely on a prediction of whether the evidence would likely have changed the outcome of a trial. Id. A defendant who raises the claim that counsel was ineffective for failing to investigate must show what a more in-depth investigation would have shown. Ex parte Dennis, 665 S.W.3d at 574; Mooney v. State, 817 S.W.2d 693, 697 (Tex. Crim. App. 1991).
Phanprasa asserts that trial counsel was ineffective for failing to investigate potential defensive issues, namely the defense of duress. But that defense is unavailable to a defendant who "intentionally, knowingly, or recklessly placed [her]self in a situation in which it was probable that [s]he would be subjected to compulsion." Tex. Penal Code § 8.05(d). Phanprasa admitted that she tried to broker a drug deal between two groups of drug dealers; that people who deal drugs can be dangerous; that after the deal went awry, there was pressure to recoup the money she lost; that she and others were looking for Cassie to settle a debt; that she drove her co-defendants to a house where Cassie was staying and knew her co-defendants had guns; and that when they returned to her SUV, she drove them away with Cassie. Even if Phanprasa claimed she was following orders from "the Mexicans" or her co-defendants, "[t]he fact that a defendant is taking orders from another . . . is not sufficient to raise the defense of duress." Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.-El Paso 1995, no pet.) (citing Leviness v. State, 247 S.W.2d 115, 118 (Tex. Crim. App. 1952)). We cannot say that the investigation and assertion of a defense of duress would have changed any outcome here.
Phanprasa also broadly faults trial counsel for failing to hire an investigator (other than for the limited purpose of finding "the Mexicans") and a mitigation expert, for failing to apply for a subpoena, for having "never interviewed any witnesses," for having "never filed a motion for discovery," for having "only obtained partial discovery when the State provided it," for acknowledging that the defense of duress "was something, with hindsight, that he should have vetted," and for having "generally d[one] nothing to investigate [her] case." But as to what a more thorough investigation would have turned up, Phanprasa's argument is more limited in scope.
Phanprasa focuses on trial counsel's failure to investigate her culpability by interviewing two witnesses-specifically, Monk and Garza. According to Phanprasa, Garza and Monk had critically important information that could have corroborated her lack of mens rea. She points to evidence from the co-defendant trials that: (1) Garza, like Phanprasa, mistook the sound of the gunshot that fatally wounded Jimmy for something else; (2) Garza described Cassie's appearance when she walked to Phanprasa's car as both struggling not to cry but also "nonchalant" and "smiling"; and (3) Garza and Monk were unconcerned for Cassie's safety. Phanprasa asserts this evidence lends credence to her claim that the circumstances surrounding Cassie's abduction were not obviously dangerous. But Garza's and Monk's testimony was not entirely favorable to Phanprasa. For instance, Monk testified in Animal's trial to his belief that Phanprasa had "masterminded" Cassie's abduction. So here too, we cannot say the evidence would likely have changed the outcome of a trial, particularly considering the substantial weight of the other evidence.
Phanprasa also contends that trial counsel's failure to investigate also infected the punishment hearing because he did not present mitigating evidence. "In assessing whether trial counsel's failure to investigate and present mitigating evidence during punishment proceedings caused prejudice to an appellant, 'we reweigh the evidence in aggravation against the totality of available mitigating evidence.'" Martinez v. State, No. 14-17-00612-CR, 2018 WL 5261069, at *1 (Tex. App.-Houston [1st Dist.] Oct. 23, 2018, no pet.) (mem. op., not designated for publication) (quoting Wiggins, 539 U.S. at 534). We ask whether there is a reasonable probability that, absent the deficient performance, the court would have assessed a lesser punishment. Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018).
But an appellant cannot establish ineffective assistance based on a failure to present mitigating evidence when the appellant has not shown that additional mitigating evidence was available. See Bone v. State, 77 S.W.3d 828, 834-35 (Tex. Crim. App. 2002) (appellant failed to establish prejudice based on trial counsel's failure to produce more mitigating evidence when record did not show that other mitigating evidence existed). Here, the record of the punishment hearing shows that trial counsel offered, and the trial court admitted, letters of support from Phanprasa's family, friends, and substance abuse counselor. Trial counsel also offered certificates from programs completed by Phanprasa while she was in custody. And he elicited testimony from Phanprasa consistent with the PSI report concerning: (1) sexual abuse Phanprasa suffered as a child beginning at the age of three, and (2) her addiction to drugs and alcohol from the age of fifteen. Beyond pointing again to Garza's and Monk's allegedly unexplored accounts of Cassie's kidnapping, which we have already addressed, Phanprasa does not identify any additional mitigating evidence trial counsel could have discovered had his investigation been more thorough. Consequently, Phanprasa has not shown trial counsel's performance was unconstitutionally deficient for failing to investigate and present mitigating evidence. See, e.g., Mooney, 817 S.W.2d at 697 (appellant did not demonstrate that counsel was deficient because, among other things, appellant did not establish what counsel could have learned from a more thorough investigation).
Additionally, Judge Clark already had Garza's and Monk's testimony before him at the punishment hearing, which included the testimony Phanprasa contends might have given some credence to her account that she did not know Cassie was being abducted.
We therefore hold the trial court's refusal to grant a new trial based on trial counsel's alleged failure to investigate and present mitigating evidence was not an abuse of discretion.
We overrule Phanprasa's sole issue on appeal.
Conclusion
We affirm the trial court's judgment.