Affirmed and Memorandum Opinion filed November 14, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00649-CR

JASON COLBY ROSS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 20-CR-0818

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

Appellant Jason Colby Ross was charged with the felony offense of driving 

while intoxicated, third or more. See Tex. Penal Code Ann. §§ 49.04, 49.09(b). 

Appellant pleaded guilty to the offense and, after a punishment hearing, was 

sentenced to 10 years’ confinement. Appellant appeals and asserts he received 

ineffective assistance of counsel with respect to the sufficiency of communications 

regarding a plea bargain offered by the State. For the reasons below, we affirm. 
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BACKGROUND

After Appellant was arrested and charged with the above-described offense, 

the State made a plea bargain offer to Appellant of four years’ confinement in 

exchange for a guilty plea. On July 18, 2021, Appellant retained attorney Scott 

Shearer to represent him, replacing Appellant’s prior counsel. At the time Shearer 

was retained, the State’s four-year offer was still on the table. 

Shearer filed a motion to suppress evidence in December 2021. 

Approximately five months later, the State’s prosecutor emailed Shearer and told 

him that the State’s four-year plea bargain offer would be revoked if Appellant 

moved forward with the motion to suppress. 

On July 20, 2022, the prosecutor withdrew the State’s four-year offer. 

Appellant proceeded to a punishment hearing before the trial court. After hearing 

testimony from several witnesses, the trial court assessed punishment at 10 years’

confinement. 

Appellant filed a motion for new trial alleging ineffective assistance of 

counsel with respect to the sufficiency of Shearer’s communications regarding the 

State’s four-year plea bargain offer. According to Appellant, Shearer failed to 

inform him that withdrawal of the motion to suppress had become an express term 

of the offer. This failure, Appellant alleged, prevented him from accurately 

evaluating the four-year offer and constituted objectively deficient representation. 

The trial court held a hearing on Appellant’s new trial motion, at which 

Shearer testified. Shearer said he was retained by Appellant in July 2021 to 

represent Appellant with respect to his charge for driving while intoxicated. 

According to Shearer, Appellant “was very unhappy with his previous attorney 

because [the attorney] had not prepared the case for trial [and] hadn’t filed any
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motions.” 

Shearer said he was aware of the State’s outstanding four-year plea bargain

offer when he took over Appellant’s case. Shearer said there were no conditions 

attached to the offer nor were there any expiration dates at this time. 

Shearer testified that he told Appellant he would file a motion to suppress 

and “explain[ed] exactly what a motion to suppress was.” Shearer said he based 

this initial assessment on Appellant’s version of events and thought Appellant “had 

a pretty good motion to suppress.” But Shearer said he then “looked at this police 

report and the videotape and determined that what [Appellant] was saying was 

completely inaccurate.” Shearer said he nonetheless filed a motion to suppress. 

According to Shearer, during his representation of Appellant, they primarily 

communicated face-to-face and met together approximately 12-15 times. Shearer 

said he and Appellant also communicated via text message. Admitted into 

evidence were multiple text messages between Shearer and Appellant discussing 

the progression of Appellant’s case. 

Reviewing the text messages, Shearer said in January 2022 the four-year 

plea bargain offer was still available but Appellant was reluctant to accept the offer

and did not want to go to prison. Shearer acknowledged receiving an email from 

the State’s prosecutor in May 2022 informing him that, “if [Appellant] move[d] 

forward with the motion to suppress,” the four-year offer would be unavailable. 

Shearer said the prosecutor did not give him a “specific date” that the plea bargain 

offer would expire. The prosecutor also expressed that the four-year offer was 

“charitable” but said she would “honor it because it was made by a previous 

ADA.”

According to Shearer, he screen-shotted the prosecutor’s email and sent it to 
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Appellant. In response, Appellant replied: “well, there’s a new DA. What is the 

offer? Can you get it down to three?” Shearer said that he “communicate[d] to 

[Appellant] that if [they] . . . moved forward with the motion to suppress the four 

TDC was going to be off the table.” 

Defense counsel asked Shearer whether he responded to the prosecutor to 

inquire as to “the contours of her conditions” or the specific date on which the 

motion to suppress needed to be “withdrawn.” In response, Shearer said: “There 

was no point in withdrawing [the motion] because it hadn’t been presented. It was 

just on file.” Continuing on, Shearer testified that, “[i]f [he] proceeded with and 

presented the motion to suppress to the court, the four years would be off the table. 

But [he] had not presented the motion to suppress.” Shearer said he equated the 

prosecutor’s use of “moving forward” with “presenting the motion,” which he had 

not done. Shearer testified that he “wasn’t going to proceed with a motion to 

suppress if [Appellant] took the four years. So [he] had to get an answer from 

[Appellant] first as to whether [Appellant] could accept the four years.” 

Defense counsel asked Shearer to further describe his conversations with 

Appellant regarding the four-year plea bargain offer, to which Shearer replied:

Several times — I had numerous discussions with [Appellant] and I 

expressed to him how I thought the case was a bad case. And he 

never recognized it was a bad case. [Appellant] asked me to get the

case dismissed. Then he asked me to get him into drug counseling. 

Finally three quarters of the way through the year he finally said: 

Well, I’ll take two. 

And I said: Well, I talked to them, and they’re not going to agree to 

two. And then a couple of months would go by and he said: Well, I’ll 

take three. And then I talked to the DA and offered three, and they 

turned me down on the three. And then finally at one point, I think it 

was in June, he begrudgingly said: Well, I guess I’ll just take the four 

years. 
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And then I asked him: Do you want me to tell the DA that you’d take 

the four years? And he said: No, I want to talk about it with my 

family first. I said: Okay, but this deal is not going to last forever. 

And then on 7/19 I texted him. I said: I need to know something 

right away, and he turned me down again. 

In sum, Shearer said Appellant “never during my entire representation ever told me 

that he wanted to take the four years.” Shearer stated that Appellant “did not want 

to accept any plea bargain involving more than two or three years.”

According to Shearer, the State did not inform him “in any form or fashion

that the four years wasn’t still on the table” until July 20, 2022. After that point, 

Shearer said he told Appellant the offer was unavailable because Appellant “waited 

too long to accept the offer.” After the offer was revoked, Shearer said he moved 

forward and presented Appellant’s motion to suppress on July 27, 2022.

At the new trial hearing, Appellant also offered three affidavits into 

evidence:

• Jerry Armstrong’s Affidavit: Armstrong said he has known Appellant 

for approximately 20 years and was present during conversations 

between Appellant and Shearer in which Appellant’s case was 

discussed. According to Armstrong, Appellant was adamant about 

not going to trial and “would take the 4 years if it came down to it.” 

Armstrong said Appellant told Shearer “many times to take the 4 

years.” Armstrong said he never heard “anything about any deals that 

had anything to do with withdrawing [a] motion to suppress.”

• Melissa Gerhart’s Affidavit: Gerhart said she was present during 

discussions between Appellant and Shearer during which they “all 

discussed about [Appellant] taking the 4 year plea.”

• Appellant’s Affidavit: Appellant stated that he retained Shearer in 

October 2021 and, at that time, was aware there was an outstanding

four-year plea bargain offer. Appellant said he did not know that 

there were conditions attached to the offer or an expiration date. 

According to Appellant, he told Shearer he wanted to accept the fouryear offer. Appellant said that Shearer “agreed and said okay. 
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[Shearer] didn’t then, and had never before, told me the offer had or 

could expire, and he never mentioned or said the plea bargain offer of 

4 TDC was conditioned or had conditions attached in any way.” 

Appellant said the next time he discussed his case with Shearer, he 

was told they were going to trial. 

The trial court signed an order on October 5, 2022, denying Appellant’s motion for 

new trial. Appellant timely appealed.

ANALYSIS

In a single issue on appeal, Appellant asserts Shearer was ineffective for 

“failing to communicate to Appellant a deadline that had become an essential term 

of the State’s plea bargain offer.” Therefore, Appellant contends, the trial court 

erred in denying his motion for new trial. 

When a defendant asserts ineffective assistance of counsel in a motion for 

new trial, we review the trial court’s denial of the motion for an abuse of 

discretion. Parker v. State, 462 S.W.3d 559, 562 (Tex. App.—Houston [14th

Dist.] 2015, no pet.). A trial court abuses its discretion when its decision is so 

clearly wrong as to lie outside the zone of reasonable disagreement. Webb v. State, 

232 S.W.3d 109, 122 (Tex. Crim. App. 2007). We view the evidence in the light

most favorable to the ruling and reverse only if no reasonable view of the record 

could support the ruling. Parker, 462 S.W.3d at 562. 

It is well-established that a criminal defendant is entitled to effective 

assistance of counsel during the plea-bargaining process. See Ex parte Wilson, 724 

S.W.2d 72, 73 (Tex. Crim. App. 1987) (en banc); Walker v. State, 651 S.W.3d 7, 

12 (Tex. App.—Houston [14th Dist.] 2020, pet. dism’d) (per curiam). To prove 

ineffective assistance of counsel, the appellant must show (1) trial counsel’s 

representation fell below an objective standard of reasonableness, based on 

prevailing professional norms; and (2) there is a reasonable probability that the
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result of the proceeding would have been different but for trial counsel’s deficient 

performance. Strickland v. Washington, 466 U.S. 668, 686 (1984); Sykes v. State, 

586 S.W.3d 522, 530 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d). 

To determine whether counsel’s performance was objectively deficient 

under the first Strickland prong, we look to the totality of the representation and 

the particular circumstances of the case. Ex parte Jimenez, 364 S.W.3d 866, 883 

(Tex. Crim. App. 2012). We indulge a strong presumption that counsel rendered 

adequate assistance and acted in furtherance of sound trial strategy. Strickland, 

466 U.S. at 689; Jimenez, 364 S.W.3d at 883. To overcome the presumption of 

reasonable professional assistance, an allegation of ineffective assistance must be 

firmly rooted in the record. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. 

App. 2005). 

As relevant here, “reasonable professional assistance” requires that counsel 

convey plea offers to the defendant and give the defendant the benefit of counsel’s 

professional advice on the decision of whether to plead guilty. Walker, 651 

S.W.3d at 13. This includes advising the defendant of any deadlines that are an 

essential term of the plea offer. See Turner v. State, 49 S.W.3d 461, 465 (Tex. 

App.—Fort Worth 2001, pet. dism’d). 

To establish prejudice in a claim of ineffective assistance of counsel in 

which a defendant rejects a plea offer because of bad legal advice, the defendant 

must show a reasonable probability that: (1) he would have accepted the earlier 

offer if counsel had not given ineffective assistance; (2) the State would not have 

withdrawn the offer; and (3) the trial court would not have refused to accept the 

plea bargain. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). 

Here, we conclude the trial court did not abuse its discretion in denying 

Appellant’s motion for new trial alleging ineffective assistance of counsel. 
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Specifically, the record does not show a “firmly rooted” allegation of ineffective 

assistance with respect to Appellant’s and Shearer’s communications regarding the 

four-year plea bargain offer or any terms attached thereto. See Salinas, 163 

S.W.3d at 740.

Shearer said he took over Appellant’s representation in July 2021, at which 

time the four-year plea bargain offer was available. Shearer said Appellant was 

still unwilling to accept the four-year offer six months later. In May 2022 

(approximately 10 months after Shearer took over Appellant’s representation), 

Shearer received an email from the State’s prosecutor informing him that (1) the 

four-year offer was “charitable” but would be honored nonetheless, and (2) the 

offer would be unavailable “if [Appellant] move[d] forward with the motion to 

suppress.” 

Shearer testified that he forwarded the email to Appellant via text message; 

these text messages were admitted into evidence. Shearer said he

“communicate[d] to [Appellant] that if [they] . . . moved forward with the motion 

to suppress the four TDC was going to be off the table.” 

Recounting his plea discussions with Appellant, Shearer said Appellant was 

continually reluctant to take the four-year offer and instead requested that Shearer 

secure a better plea offer or get the charges dismissed. In June 2022, Shearer said 

Appellant “begrudgingly” agreed to take the four-year offer but “want[ed] to talk 

about it with [his] family first.” Shearer said he then texted appellant on July 17, 

2022, in a “last ditch effort,” telling Appellant he “need[ed] to know as soon as 

possible” if Appellant wanted to take the four-year offer. Shearer said Appellant 

“turned [him] down again.” 

The State withdrew the plea bargain offer the following day. Shearer said he 

did not know until this day that the offer was unavailable. Shearer acknowledged 
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that the prosecutor informed him the four-year offer would be off the table if he

“moved forward” with the motion to suppress. Shearer testified that he did not 

violate this condition because he “had not presented the motion to suppress.” 

According to Shearer, he “wasn’t going to proceed with a motion to suppress if 

[Appellant] took the four years. So [he] had to get an answer from [Appellant] 

first as to whether [Appellant] could accept the four years.” 

Considered in the light most favorable to the trial court’s ruling (Parker, 462 

S.W.3d at 562), this evidence supports the conclusion that Shearer conveyed the 

plea bargain offer to Appellant, including the necessary details regarding what 

would trigger its revocation. Moreover, the evidence also shows that Shearer

communicated with Appellant for approximately one year regarding whether 

Appellant would accept the four-year offer and repeatedly asked Appellant for his 

decision. Because the record before us contains some evidence that Shearer 

informed Appellant about the State’s offer and any conditions applicable to that 

offer, Appellant has failed to demonstrate Shearer’s representation was deficient. 

Therefore, Appellant has failed to satisfy the first prong of the Strickland test. See 

Strickland, 466 U.S. at 689.

On appeal, Appellant points to the evidence he presented at the new trial 

hearing suggesting that he was unaware the four-year offer was conditioned on 

withdrawal of the motion to suppress. But this evidence was contradicted by 

Shearer’s testimony and the text message exhibits showing that Shearer forwarded 

the prosecutor’s May 2022 email to Appellant. Because the trial court’s resolution 

of this conflict is neither arbitrary nor unreasonable, we defer to its resolution. See 

Webb, 232 S.W.3d at 122.

We overrule Appellant’s sole issue on appeal. 
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CONCLUSION

We affirm the trial court’s judgment.

/s/ Meagan Hassan

Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan. 

Do Not Publish — Tex. R. App. P. 47.2(b).