O pinion filed June 18 , 2015



### In The 

# Eleventh Court of Appeals

_____ _ _____ 

### No. 11

- 1 4

- 00 2 64

- CR

____ _ ______ 

### TOMMY VINCENT JETTON , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas
Trial Court Cause No. CR 12704

- A

M E M O R A N D U M O P I N I O N Appellant, Tommy Vincent Jetton
, has filed an app ea l from an order in which
the trial court denied the relief requested by Appellant in an application for writ of habeas corpus

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 11.072 (West Supp. 2015 )

. In his sole issue on appeal, Appellant contends that the trial court abused its discretion in denying the applica tion for writ of habeas corpus. We aff irm the trial court’s
order

.2

I n the underlying case, Appellant entered into a plea bargain agreement with the State and pleaded guilty to the offense of possession of less than one gram of a controlled substance in penalty group two , a state jail felony. The trial court
convicted Appellant and, in accordance with the plea agreement, suspended the imposition of Appellant’s sentence and placed him on community supervision in
2008

. On June 12, 2014, Appellant filed an application fo r writ of habeas corpus in
which he asserted one ground for relief : that he “ received ineffective assistance of
counsel at trial in that his attorney failed to locate and produce [Appellant’s] parents as witnesses, who would have testified that all the con trolled substances found were not [Appellant’s] because he did not reside at the residence.” 1 The State time ly filed

a re ply to the application

. Various documentary evidence was attached to Appellant’s application and to the State’s reply. The trial cou rt subsequently denied Appellant’s application without a hearing, as permitted by Article 11.072, section 6(b) , and has recently , pursuant to this court’s abatement order , clarified its previous order and entered findings of fact and conclusions of law

. T he trial court found, among other things, that Appellant’s assertions of dissatisfaction with his trial counsel were not credible and that trial counsel was aware of the testimony that Appellant’s mother could provide if called as a witness.
A defendant h as the right to effective assistance of counsel during plea proceedings. Ex parte Harrington , 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
When a defendant challenges the validity of his guilty plea based on ineffective assistance of counsel, he must show two things: (1) that counsel ’ s performance fell below an objective standard of reasonableness and (2) that there is a reasonable

1 We note that, after the trial court entered its order and its findings of fact and conclusions of law and after this appeal was reinstated, Appellant filed an amended application for writ of habeas corpus. However, the amended application was not ruled on by the trial court and is not at issue in this appeal.3

probability th at, but for counsel ’ s unprofessional errors, the defendant would not have ple ade d guilty and would have insisted on going to trial. Id. ; see Hill v.
Lockhart , 474 U.S. 52, 58

– 59 (1985) ; see also Strickland v. Washington , 466 U.S. 668 (1984)

. In an Articl e 11.072 proceeding, the trial judge is the sole finder of fact
, and the appellate court must afford almost total deference to a trial court’s findings of fact if supported by the record. State v. Guerrero , 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (appl ying standard from Guzman v. State , 955 S.W.2d 85 (Tex. Crim. App. 1997)); Ex parte Garcia , 353 S.W.3d 785, 788 (Tex. Crim. App. 2011) (same). In support of his claim of ineffective assistance of counsel , Appellant attempted to show that his trial counsel faile d to investigate the case and failed to call Appellant’s parents as witnesses

. Appellant stated in his application that he had entered a plea of guilty to possessing the drugs in his apartment “not knowing he had a defense,” which was “that the drugs were not his.” In an affidavit attached to the State’s response, trial counsel disputed Appellant’s allegations of ineffective assistance. Trial counsel averred that he had talked to Appellant’s mother on the phone and was familiar wit h what Appellant’s parents would testify to if called as witnesses

. At a pretrial hearing, Appellant decided to accept t he State’s offer a nd plead guilty to the offense. Trial counsel’s associate was present at the pretrial hearing and pointed out that t he apartment was leased by Appellant, that Appellant was present at the time the drugs were found in the apartment, and that both codefendants had signed st atements implicating Appellant. Furthermore, the police report, which was also attached to the Stat e’s response, indicate d that Appellant had knowledge of the drugs; he informed one the
officers at the apartment that the two plastic totes with seeds growing as a pod contained mushrooms/psiloc ybin.4

Based on our review of the documents attached to Appellant’s application and

to the State’s response, we cannot hold that the trial court abused its discretion in failing to find that Appellant received ineffective assistance of counsel. Trial
counsel was not ineffective for failing to call witnesses at a trial that never occurred, and Appellant did not show that trial counsel misinformed Appellant about any defense that he may have had to the charges against him. Additionally, trial
counsel’s affidavit i ndicated that he had investigated the case and was aware of the testimony that could have been presented if Appellant had decided to go to trial instead of pleading guilty. The trial court did not err in refusing to grant habeas corpus relief in this case

. We overrule Appellant’s sole issue on appeal.
We affirm the order of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

June 18 , 2015 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., Willson , J. , and Bailey, J.