### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00652- CR

Ex parte Aar on Meininger

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 08- 1244 -K 368A, HO NORAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n Dec ember 2008, appellant Aar on Meining er pleade d g uilty to two cou n ts of a three -count indi ctment accusing him of ag g rava ted assault with a deadly wea pon. See Tex. Penal Code Ann. § 22.02 (West 2011). The pleas we re ma de pursuant to a barg ain by which Meining er

was a djudge d g uilty

on count one and sentenc ed to thr ee y ear s in prison, adjudication of guilt was defe rre d on count three and Meining er was place d on community supervision for ten y ear s, and coun t two was a bandoned. I

n J une 2010, Meining er a pplied for a

post-conviction writ of habeas c orpus pursuant to article 11.072 alleg ing that his g uilty pleas wer e involuntary due to ineffe ctive assistance of counse l. See Tex. Code Crim. P roc. A nn. art. 11.072 (West 2005). This is an appea l f rom the 1 district court’s orde r deny ing r elief. We a ffirm the or der.

This w rit application rela tes only to the order defe rring adjudication and placing appellant on 1 co m munity supervision. We are advised by the State that Meining er collater ally attack ed h i s conviction on count one in an a rticle 11.07 ha

beas c orpus proc eeding

. See Tex. Code Crim. Proc

. Ann. ar t. 11.07 (West Supp. 2010).When a defe ndant challeng es the voluntariness of his g uilty plea on the g round that

he rec eived ineffe ctive assistance of counsel, he must demonstrate that counsel’s advice was outside the rang e of competenc e require d of at t o rn ey s in criminal case s and that, had he been proper ly counsele d, he would not have pleade d g uilty and would instead h av e insisted on g oing to trial. Ex parte Morrow , 952 S.W .2d 530, 536 (Tex. Crim. App. 1997). An applicant for habea s corpus relief must prove his alleg ations by a preponde ranc e of the evidenc e. Ex par t e Richardson , 70 S.W .3d 865, 870 (Tex. Crim. App. 2002).

No hear ing was held on the writ application

. I n s tead, the trial court instructed the parties to file aff

idavits. See Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b). Affida vits wer e filed by Meining er’ s mother and his appointed t ri al co u n s el

. Ba sed on these aff idavits, the trial court prepa red detailed finding s of fac t. We defe r to the trial court’s finding s and will uphold the court’s ruling absent an abuse of discretion. Ex p a r t e W h ee l er , 203 S.W .3d 317, 324 (Tex. Crim. App. 2006); Ex part e P et er

s o n , 117 S.W .3d 804, 819 (Tex. Crim. App. 2003); Ex parte Cummins , 169 S.W .3d 752, 755 (Tex. App.—For t Worth 2005, no pet.). The finding s ref

lect that Meining er was arr est ed afte r he fired a shot outside Christopher Cavazos’s resid en ce on Aug ust 19, 2008. An arg ument had broken out betwee n Meining er and the occupa nts of an automobile, J ames Robinson and Ana Rey es, who arr ived afte r Meining er. As they drove awa y , appellant pulled a pistol fr om his pocket and fired. Cavazos told the responding office r that appellant had also pointed the pistol at him. Appellant was char g ed with assaulting Robinson (count one), Cava zos (count two), and Rey es (c ount three)

.

2Meining er contends t hat hi s counsel was ineffe ctive bec ause he did not adequately

investiga te the fac ts of his case . He complains that his attorney did not speak to Cavazos until afte r Meining er’ s mother had done so. Fur ther, Meininger asse rt s t h at co unsel failed to visit the s cene of the incident or persona lly interview any of the other witnes s es , ch o o s i n g instead to rely on t he police offe nse repor

t. Appellant does not contend, howeve r, that the offe nse repor t wa s inacc urate or incomplete, nor does he cite any evidenc e that d ef en s e co unsel failed to discover exculpatory

information. Meining er also contends that defe nse counsel faile d t o “deve lop and utiliz e” Meining er’ s diminis hed mental capa city as a defe nse or in mitigation of punishment. Meining er did
not make this cont en t i o n in his writ application. I n her aff idavit, howeve r, Meining er’ s mother stated that Meining er “re ceive d a mental health assessment” on the day of the incident and that “the counselor circ led the choice ‘B ipolar D/O.’” She als o s t ated that she told defe nse counsel that Meining er “re ceive d a head injury six y ear s ear lier resulting in diminis hed capa city .” She complained that c ounsel did not pursue this as a possible def ense or in miti g ation of punishment. 2 Counsel interviewe d Meining er in the county jail. Acc ording to the court’s finding s, Meining er admitted firing the pistol, but he insisted that he had fired into the air. He denied pointing the pistol at any one, including Cavaz o s . C o u n sel also examined the police offe nse repor t, which stated that appar ent bullet d am ag e had been found at a g ara g e down the street from Cavazos’s residenc e, in the direc tion in which Robinson and Rey es had driven. I n counsel’s opinion, this was

Texas does not rec og nize diminis hed capa city as an aff irmative defe nse, althoug h a defe ndant 2 may offe r evidenc e of a mental impairment to counter the State’s s h o wi n g t h at he acte d with the requisite mental state

. Jack son v. State , 160 S.W .3d 568, 573 (Tex. Crim. App. 2005).

3inconsistent with Meining er’ s claim that he had fired into the air and sug g ested that he had fired at

the car as it drove awa y . Counsel also spoke to appellant’ s m o t her, who had rec orded a 3

conver sation that she had with Cavazos afte r the incident. I n this convers at ion, Cavazos did not mention having th e p i s t o l pointed at him. Counsel then spoke to Cavazos, who denied that M ei n i n ger had pointed the pistol at him. Counsel broug ht these inconsistencies in Cavazo s ’s
statements to the att en t i o n o f the prosec utor, and count two of the indictment was ultimately abandone d by

the State. Counsel advised Meining er that he had a g ood chanc e of acquittal on count two (the
count that the State ultimately abandone d), but that he was likely , if not cer tain, to be convicted on counts one and three

. Counsel also explained to Meining er that he would likely be require d to serve one-ha lf of any prison sentenc e beca use of his use of a firea

rm. Meining er told counsel to neg otiate with the State in order to minimiz e any prison time he might se rve. The court’s finding s ref lec t t h at M eining er was actively involved in the plea barg aining proce ss. The State’s initial offe r was ten y ear s i n p ri s o n on count one, with the other

co u n t s t o b e admitted and considered pursuant to penal code section 12.45. See Tex. Penal C od e Ann. § 1 2

. 4 5 (West 2011). Meining er reje cted this offe r. The State then offe red three y ear s’ imprisonment on count one, ten y ear s’ probation on count three to beg in afte r the prison term ended, and abandonme nt of count two. Meining er asked for time to consider the offe r and discuss it with his family

. Meining er’ s mother asked counsel if the prison time could be eliminated. Counsel

Although the finding s of fac t do not mention this, Counsel’s aff idavit also stated that there wer e 3 witnesses who re ported see ing Me ininge r fire direc tly at the automobile. 4returne d to the prosecutor and neg otiated an ag ree ment for three y ear s in prison on count one, ten

y ear s of defe rre d adjudication on count three to r un concur rently , and aba

ndonment of count two. Appellant ac cepte d this offer.

The court found that counsel repe atedly told Meining er that he had the rig ht to plead
not g uilty and have a jury trial. Counsel also explained the l ega l co n s eq u ence s of acc epting the State’s offe r. Althou gh t he trial court’s finding s do not addre ss Meining er’ s competenc e, the repor ter’s rec ord from the g uilty plea proce eding ref lects that Meining er and his attorney discussed this matter with the trial court at that time. Meining er told the court that he had been diag nosed as bipolar and was taking medications. He also said that he had suffe red some mem ory loss afte r sustaining a concussion ten y ear s previously

. Counsel told the trial court t h at h e h ad discussed Meining er’ s mental status with jail staff and Meining er’ s mot her. Counsel said that Meining er’ s mother “ver ified with me that in her opinion he’s adequately medicate d.” Counsel told the court that Meining er had been “ver

y intelligent in discussing with me plea b ar gai n o p t ions

. . . . He’ s well

awa re of the conse quence s of his actions today .” The trial court conclude d that Meining er had failed to s how that his attorney ’s perf ormanc e was defic ient. The court also conclude d that Meining er had failed to show that, but for the alleg ed defic iencies of counsel, he would not have pleade d g uilty

. These conclusions are supported by the trial court’s finding s and the rec ord bef o re u s . T h e trial court did not abuse its discretion by

deny ing r elief on Me ininge r’s ha beas c orpus applica tion.

5The district cour t’s order is affirme d.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Affir med Filed: Aug ust 17, 2011 Do Not Publish

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