Affirm and Opinion Filed May 29, 2014 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-00199-CR EX PARTE RICHARD NICHOLAS COLON On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-81243-2012



### MEMORANDUM OPINION Before Chief Justice Wright, Just ice Myers, and Justice Evans Opinion by Chief Justice Wright Richard Nicholas Colon appeals the trial court’s order denying him the relief sought by his article 11.072 application for writ of habeas cor pus. In three issues, appellant contends the trial court abused its discretion in denying relie f because he received ineffective assistance of counsel at trial. We affirm the trial court’s order. Background At 7:00 p.m. on December 31, 2011, Frisco polic e officer J. Gaulden saw appellant and Dietrich Stiteler standing outside a vehicle with Colorado license plates. The vehicle was parked near the public restrooms in a park. The rear passenger door was open. When the men saw Gaulden, appellant dropped a backpack on the ground and began reaching inside the vehicle. Stiteler tried to kick “an object” that was on the ground underneath the rear of the vehicle. When Gaulden approached the men, he saw that the obj ect behind the rear passenger tire was a brown‐ 2 ‐ paper bag. Gaulden called for a cover unit and asked both men to sit on the curb. After other officers arrived, Gaulden picked up a white prescr iption bottle with no label on it that was near the paper bag. When he asked the men why the bottle smelled like marijuana, both appellant and Stiteler said they had medical marijuana licenses from Colorado for injuries. Both men said there was marijuana in a cup holder inside the vehi cle. Appellant also stated there was a “K Bar knife” inside the vehicle and a .45-caliber handgun on the rear seat that he had been trying to hide under a jacket. Gaulden asked both men if they had a ny weapons on their persons. Appellant said he had a knife in his right shoe and a “multi-tool knife” in his pants pocket. Gaulden searched appellant and retrieved both knives. Gaulden also found a load ed .45-caliber magazine in appellant’s pants po cket and a baggie that containe d “two clear capsules with a green substance inside and one small white ta blet.” Later analysis showed the capsules contained marijuana and the tablet was methadon e hydrochloride. Gaulden searched appellant’s vehicle and found a cup with mariju ana inside in plain view in a cup holder, one .45-ACP semiautomatic pistol wrapped in a black jacket in the rear seat, several large “hunting style” knives throughout the interior of the vehicle, a small kitche n knife in the center console, a glass pipe in a jacket in the trunk, and a large bag that contained marijuana buds in the trunk. Appellant was charged by i ndictment with possession of methadone, a controlled substance, in an amount less than one gram. On June 22, 2012, he pleaded guilty pursuant to a plea agreement, and the trial court deferred adju dicating appellant’s guilt and placed him on two years’ community supervision. On June 27, 2 012, appellant filed a motion for new trial. A hearing scheduled on the motion was cancelle d after appellant withdrew the motion. On March 7, 2013, appellant filed an article 11. 072 application for writ of habeas corpus asserting his plea was involuntary due to ineff ective assistance of counsel. The trial court‐ 3 ‐ entered an agreed order designati ng the issues and directing appell ant’s trial counsel to file an affidavit responding to the allegati ons in the applicati on. Counsel filed an affidavit on July 12,
2013. In the affidavit, counsel st ated appellant, who resides in Colorado, was charged with misdemeanor possession of marijuana, which was found in appellant’ s vehicle, and felony possession of methadone, which was found in appella nt’s pockets. Counse l stated the decision not to file a motion to suppress was made by appellant after couns el discussed the legal aspects of the felony case with him, including “the legality of the search of his person, the benefits and negative aspects of deferred adjudication commu nity supervision, and appellant’s unwillingness to travel to and from Texas fo r multiple court dates.” Counsel outlined several lengthy telephone conversations she had with appellant concer ning the case, and detailed her research and investigation into the fa cts of the case. Counsel told appe llant that because the case concerned the search of appellant’s person after appella nt admitted carrying weapons, and prior to the search of appellant’s ve hicle, the search of his person woul d probably be upheld because “Collin County courts place a premium on officer safety.” Counsel stated she told appellant she was “happy to pursue whatever course he wanted,” and that “appellant chose to plead guilty on the next court setting.” Appellant agreed to plead guilty in exchange for the State reducing the plea offer from five years to two year s deferred adjudication supervision. Counsel stated that after appellant comp leted the plea, she was informed by a misdemeanor prosecutor that appe llant’s co-defendant had filed a motion to suppress, the motion had been granted, and the co-defendant’s cases were dismissed. Counsel informed appellant about the situation, and appellant instructed counse l to file a motion for new trial. In the motion for new trial, counsel argued the State should ha ve disclosed that appellant’s co-defendant had‐ 4 ‐ filed a motion to suppress evidence and the outcome of that hearing. After a hearing date was set on appellant’s motion for new trial, counsel talked with a felony prosecutor assigned to the 219th Judicial District Court. The pr osecutor said if appellant insist ed on having a hearing on the issue and won, the prosecutor would withdraw the deferre d adjudication offer, leaving appellant to go open to the trial court if he lost on a motion to suppress. The prosecutor agreed to dismiss the misdemeanor possession case if appellant agreed to cancel the hearing on the motion for new trial. Counsel stated she talked with appellant ab out the prosecutor’s stance . She also explained collateral estoppel and why his co-defendant’s outcome on his motion to suppress did not guarantee appellant would have the same outcome. Appellant agreed to withdraw the motion for new trial. Counsel cancelled the hearing on th e motion for new trial, and the State filed a dismissal of the misdemeanor possessi on of marijuana case on July 20, 2012. Counsel’s affidavit included an email date d August 7, 2012 from appellant asking her to file another motion for new trial and motion to suppr ess. In the email, appellant said, “I know I have flip flopped on this a lot but I have a lot at stake I feel but after spending the 17 hour drive from Colorado back to Texas yesterday and sp eaking with my family and my attorney in Louisiana I think I have a decent sh ot at a good outcome on this one.” In response to counsel’s affidavit, appellant filed a letter from counsel dated August 7, 2012, that outlined her work on the case and notif ied appellant that she had concluded her representation. Appellant spec ifically focused on the followi ng paragraph to demonstrate counsel’s ineffectiveness: We discussed the possibility of doi ng a Motion to Suppress. I made it clear, however, that your case was in front of a very conservative judge whose bar for suppressing evidence is known to be quite high. The choice was really how many times to come to Texas to fight a case that I did not feel we had [a] strong chance of winning under the circumstances. You opted to take the conservative route, accepting the deferred plea deal with only one further trip to Texas.‐ 5 ‐ The trial court entered written findings of fact and conclusions of law. The trial court found that (1) appellant’s own evidence regarding counsel’s representation of him was consistent with counsel’s affidavit; (2) the statements in counsel’s affidavit were credible; (3) counsel’s affidavit showed counsel conducted appropriate investigation and discove ry in the case; (4) counsel analyzed the various search and seizure issues in the case; and (5) counsel’s opinion as to the chances of success of a motion to suppress was reasonably derived. The trial court denied appellant the relief sought by written order dated January 27, 2014. 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 judge’s ruling. Ex parte Peterson , 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007). We will uphold th e 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 application of the law to the facts, if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. Id . If the resolution of the ultimate question turns on an application of lega l standards, we review the determination de

novo. Id

. To prevail on an ineffective assistance of c ounsel claim, an appellant must meet the twopronged test set out in Strickland v. Washington , 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State , 726 S.W.2d 53 (Tex. Crim. App. 1986). Lopez
v. State , 343 S.W.3d 137, 142 (Tex. Cr im. App. 2011). The appellant must show both that‐ 6 ‐ counsel’s representation fell below an objective standard of reasonableness and the deficient performance prejudiced the defense. See id . In the context of a guilty plea, to demonstrate prejudice, the appellant must s how that but for counsel’s defici ent performance, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (citing Hill v. Lockhart , 474 U.S. 52, 58 (1985)). In the context of appellant’s motion for new trial, appellant would have to show that but for counsel’s performance, the trial court would ha ve granted appellant a new trial. See Jimenez v. State , 240 S.W.3d 384, 416 (Tex. App.–Austin 2007, pet. ref’d); see also Waddles v. State , No 05-01- 00310-CR, 2002 WL 1308725, at *2 (Tex. App.–Dalla s June 17, 2002, no pet.) (mem. op. not designated for publication). Analysis In his first two issues, appellant contends th e trial court abused its discretion in denying him the relief sought by his application for writ of habeas corpus because trial counsel was ineffective for not filing a pretrial motion to suppress evidence, and c ounsel’s errors rendered appellant’s plea involuntary. The State responds that counsel was instructed by appellant not to file a motion to suppress and the record does not show a ppellant’s plea was involuntary. Counsel’s affidavit states counsel told a ppellant a motion to suppress evidence would “probably be upheld” in his case because it invol ved a search of his person after he told an officer that he was carrying knives. Counsel further told appellant she would be “happy to pursue whatever course” appellant wanted. Counsel’s affidavit furt her points out that appellant chose to accept a plea bargain from the State for two years deferred adjudication community supervision in exchange for a guilty plea. On th e other hand, appellant asserted in his application for writ of habeas corpus that counsel did not file a motion to suppress because she was afraid‐ 7 ‐ the motion would be denied, and th at counsel’s statement to him th at his case is before a “very conservative judge whose bar for suppressing evidence is known to be quite high” illustrates that point. There was conflicting evidence, which the trial court resolved against appellant. See Ex parte Peterson , 117 S.W.3d at 819. We conc lude the trial court did not abuse its discretion in concluding appellant has not met his burden to show counsel’s performance was deficient or that the result would have been different. See Lopez , 343 S.W.3d t 142. We overrule appellant’s first two issues. In his third issue, appellant complains the tria l court abused its disc retion in denying him habeas corpus relief because counsel was ineff ective in failing to properl y investigate the case during the motion for new trial stag e. Appellant asserts counsel’s failure to find out about the co-defendant’s motion to suppress being grante d and the subsequent dismissal of the codefendant’s cases shows counsel was ineffective. The State responds that counsel was not ineffective in failing to learn the disposition of a co-defendant’s case when that disposition had no bearing on appellant’s case. Appellant received deferred adjudication comm unity supervision as a result of his plea bargain. Because there has been no conviction or finding of guilt, a motion for new trial is not proper in cases of deferred adj udication community supervision. See T EX
. R. A PP
. P. 21.1;
Donovan v. State , 68 S.W.3d 633, 636 (Tex. Crim. App. 2002). Thus, appellant has not shown he would have received a new tr ial, and the trial court could ha ve properly concluded appellant was not entitled to habeas corpus relief on this basis. See Jimenez , 240 S.W.3d at 416. Moreover, there is nothi ng in the record to show that ev en had the trial court conducted a hearing on the motion, it would have granted appellant a new trial. See id . Counsel’s affidavit‐ 8 ‐ states that after learning the co-defendant’s motion to suppr ess was granted, she apprised appellant of the situation and then filed a motion for new trial on the gro unds that the evidence given in testimony at the co-defendant’s motion to suppress hearing, as well as the ruling and subsequent dismissal of all charges, should have been provided to her as Brady material. See Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194 (1963). After a hearing date was set, one of the prosecutors assigned to the trial court stated he would withdraw the deferred adjudication offer if appellant went forward with a he aring and the motion was granted. Counsel negotiated with the prosecutor for a dismissal of appellant’s misdemea nor case if appellant agreed to withdraw the motion for new trial. Counsel then talked to appellant regarding the prosecutor’s offer and explained collateral estoppel and why the outcome of the co-defendant’s motion to suppress evidence hearing did not guarantee the same outcome for appellant. 1 Finally, there is nothing in the record show ing counsel did not inve stigate the case during the motion for new trial stage. The failure to learn about the disposition of the co-defendant’s cases does not show ineffective assistance of c ounsel, particularly because the outcome of the co-defendant’s motion to suppress evidence hear ing had no legal bearing on appellant’s case. Appellant withdrew his motion fo r new trial even after he lear ned of the outcome of the codefendant’s cases, and there is not hing in appellant’s affidavit that shows he would have rejected the State’s plea bargain of two years’ deferre d adjudication community supervision had he known the outcome of the co-defendant’s motion to suppress evidence hearing. We conclude appellant has not shown that c ounsel’s performance was deficient or that the result of the proceedings would have been different. See Ex Parte Imoudu , 284 S.W.3d at

1 We also note that although appellant indicated by email of August 7, 2012 that he want ed to file a new motion for new trial, a ny motion for new trial filed on or after that date would have been untimely. A properly filed motion for new trial is timely only if filed with in thirty days after the sentence is suspended or imposed in open court. See T EX

. R. A PP

. P. 21.4(a).‐ 9 ‐ 869; Jimenez , 240 S.W.3d at 416. Therefore, we concl ude the trial court did not abuse its discretion in denying the relief sought by the application for writ of habeas corpus. See Ex parte
Peterson , 117 S.W.3d at 819. We overru le appellant’s third issue. We affirm the trial court’s order denying appe llant the relief sought by his application for writ of habeas corpus.

Do Not Publish T EX
. R. A PP
. P. 47 140199F.U05

/ Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE‐ 10 ‐ 

## Court of Appeals **Fifth District of Texas at Dallas**

JUDGMENT

EX PARTE RICHARD NICHOLAS COLON No. 05-14-00199-CR Appeal from the 219th Judicial District Court of Collin County, Texas (Tr.Ct.No. 219-81243-2012). Opinion delivered by Chief Justice Wright, Justices Myers and Evans participating.

Based on the Court’s opinion of this date, th e trial court’s order denying the writ of habeas corpus is AFFIRMED

.

Judgment entered May 29, 2014

/Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE