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 C a u se No. 20

- CR

- 0818

M E M O R A N D U M O P I N I O N Appellant Jason Colb y Ross was charged with the felony offense of drivin g while intoxicated, third or more. See T ex. Penal Code Ann. § § 49.04, 49 .09 (b)

. Appellant pleaded guilty to the offense and, a fter a punishme n t hearing, wa s 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 t he reasons below, we aff i rm.2 B ACKGROUND
After Appellant was arrested and charged with the above

- described offense, the State made a plea bargain offer to Appellant of fou r years ’ con finement in exchange for a gu ilty plea. On July 18, 2021, Appellant retained attorney Scott
She arer to r epresent him, replacing Appel lan t ’ s prior counse l. At the time Shearer was retained, the State ’ s four

- year offer was stil l on the table. Shearer filed a motion to suppress evidence in December 2021. Approximately five months later, the State ’ s prosecut or emailed S hearer and told
him that the State ’ s four

- year plea bargain offer would be revoked i f Appellant moved forward with the motion to suppress. On July 20, 2022, the prosecutor withdrew the State ’ s four

- year offer.
A ppel lant proceeded to a punishme nt hearing before the trial court . After hearing testimony from several wi tness es , the trial court assessed punishment at 10 yea rs ’
confinement

. Appellant filed a motion for new trial alleging ineffective assistance of
counsel with resp ect to the suffic iency of Shearer ’ s commu nications regarding the
State ’ s four

- year plea bargain offer. According to Appellant, Shearer failed to
inform him that withdrawal of the motion to s uppress had become an express term
of the offer. This failure, Appella nt allege d , prevented him from accu rately evaluating the four

- year offer and cons tituted objectively defici ent representation.

The trial court held a hearing on Appellant ’ s new trial motion, a t which
Shearer testified. Shearer s aid he wa s re tained by Ap pella nt in July 2021 to represent Appellant with respect to his charge for driving while intoxicated. According t o S h earer, Appell ant “ was very unhappy with his previous attorney because [the attorney] had not prepared the case for trial [and] hadn ’ t file d an y3

motions. ”

Shearer said he was aware of the State ’ s outstanding four

- year plea bargain offer when he took over Appella nt ’ s case. Shearer said there were no conditions
attached to the offer nor were there any expiration dates at this time.

She ar er testified that he told Appe llant he would file a motion to suppress
and “ explain[ed] exactly what a motion to supp ress was. ” Shearer said he based
this in itial assessment on Appellant ’s version of events and thought Appellant “had a pretty good motion to suppress. ” But Shearer said he then “ loo ked at this polic e
rep ort and the videotape and determined that what [Appellant] was saying was completel y inaccurate. ” Shear er s aid he nonetheless filed a motion to suppress. According to Shearer, during his representation of Appellant , they primarily

c ommunicated face

- to

- fa ce and met together approximately 12

- 15 times. Shearer said he and Appel lant also commu nicated via text message

. Admitted into evidence were multiple text message s between Shearer and A pp e ll ant discussing the progression of Appella nt ’ s case.
Revie wing 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. She ar e r ac k nowledged receiving a n email from
the Sta te ’ s prosecutor in May 2022 informin g 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 pro secutor also e xpre ssed that the four

- year offer was

“ charitable ” but said she would “ honor it because it was made by a previous
ADA. ” According to Shearer, h e screen

- shotted the prosecutor ’ s email a nd sent it to4

Appellant. In response, Appellant replied : “ well, the re ’ s a ne w DA

. What is the
offer ? Can you get it down to thre e? ” Shearer said that he “ comm unicat e [ d] t o [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 whe ther he responded to the prosecutor to inqui re a s to “ the c ontours of her conditions ” or the specific date on which the motion to suppress need ed to be “ wit hdraw n

. ” In response , S hearer said: “ There was no point in withdrawing [the motion] because it had n ’ t been presented. It was just on fi le. ” Cont inuin g on, She arer testified that , “ [i]f [he ] p roceeded with and presented the motion to suppress to the cou rt, the four years woul d be off the table. But [he] had not presented the motion to suppress. ” She arer said he equa ted the prosecutor ’ s use of “ moving fo rward ” with “ presenting the motion, ” which he had
not done. Shearer testified that he “ wasn ’ t going to proceed with a motio n to
suppress if [Appellant] took the f ou r years. So [he] had to get an answ er from [Appellant] first as to whether [Appel lant ] could accept the four years. ”

Defense counsel asked Shear er to further describe his conversations with Appellant regarding th e four

- year plea bargain offer , to which Shearer replied:

Several times

— I had numer ous 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. F i nally three qu arters of the way through the year he finally said: Well, I ’ ll take two. And I sa id: Wel l, I talked to them, and they ’ re not going to agree to two. And then a couple o f months would go by and he said: Well, I ’ ll take three. And then I talked to the D A and offered three, and t hey turned me down on th e three. And then final ly at one point, I think it was in June, he begrudgingly said: Well, I guess I ’ ll just take the f our years.5

And then I asked him: Do you want me to tell the DA that you ’ d take th e four yea rs? And h e 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, S h earer said Appellant “ never during my entire representation ever told me
that he wanted to take the four yea rs. ” Shearer stated that Appellant “ did not want to accept a n y plea bargain invol ving more than two or three years. ” According to Shearer, the St ate did not inform him “ in any form or fashion
that t he four years wasn ’ t still on the tab le ” until July 20 , 2022. After that point, Shearer said he told Appellant the of f er 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 2 7 , 2022.

At the new trial hearing, Appellant also offered three a f fidavits into
evidence :

• Jerry Arm stron g ’ s Affidavit : Armstrong said he has known Appellant for a pproximately 20 years and was present during conversations between Appellant and S h earer in w hich Appel lant ’ s case was discussed. According to Arm strong, App e llant was adamant about not going to trial and “ would take the 4 years if it came down to it. ” A rmstrong said Appellant tol d Shearer “ many times to take the 4 years. ” Arm strong said he nev er heard “ anything about any deals that had anythin g to do wit h w i thdrawing [a] motion to suppress. ”

• Melissa Gerhart ’ s Affidavit : Gerhart said she was present dur ing discussions between Appella nt and S h earer during which they “ all discuss ed about [Appella nt] taking the 4 year plea. ”

• Appellant ’ s Affid avit : Appel lant st a ted that he retained Shearer in October 2021 and, at that time, was aware there was an outstandin g four

- year plea bargain offer. Appellant said he did not know that there were condition s attached t o th e offer or an expiration date. According to Appellan t , he told Shearer he wanted to accept the four

year offer. Appel lant said that Shearer “ agreed and said okay.6 [Shearer] didn ’ t then, and had never before, told me the offer had or could expi re, and he never mentioned or said the plea bargain offer of 4 T DC was conditioned or had conditions atta ched in any way. ” Appellant said the nex t time he discusse d his case with Shearer , he was told they were going to trial.

The trial court signed an or der on October 5, 202 2, denying Appel lant ’ s motion for
new tria l . Appel lant timely appealed.

A NALYSIS In a single issue on appeal, Appellant asserts Shearer was in effective for

“ failing to c ommunicate to Appel lant a deadline that had become an essential t erm of the State ’ s p lea bargain offer

. ” Therefore, Appellant c o ntends, the trial court erred in denying his motion fo r new trial.

When a defendant asserts ineffec tive ass istance 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. S tate , 462 S. W .3d 559, 562 (Tex. App.

— Houston [14th Dist.] 2015, no pet.). A trial court abuses its discretion wh en its decisio n 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 v i ew 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 , 4 6 2 S.W.3d at 562.

It is well

- established tha t a criminal defendant is entitled to effective

ass istance of co unsel during the plea

- bargainin g pr ocess. See Ex parte W ilson , 724 S.W.2d 72, 73 (Tex. Crim. App

. 1 987) (en banc) ; Walker v. State , 65 1 S.W.3d 7, 12 (Tex. App.

— Houston [14th Dist.] 2020, pet. dis m ’ d) (per curiam) . To prove
ineffective assistan ce of co unsel, the app el la nt must show (1) trial counsel ’ s representation fell below an objective standard of reasonableness , based on prevailing professional norms; and (2) the re is a reasonable probability that the7

result of the procee ding would have been differ ent but f or tr ia l counsel ’ s deficient performance. Strickland v. Washington , 466 U.S. 668, 686 (1984); Sykes v. Sta te , 586 S.W.3d 522, 53 0 (Tex. App.

— Houston [14th Dist.] 2019, pet. ref ’ d).

T o determine wh ether counsel ’ s performance was obj ectively defi cient
under th e fir st Strick land prong, we look to the totality of the representation and the particular cir cumstanc es of the case. Ex parte Jim enez , 364 S.W.3d 8 6 6, 883 (Tex. Crim. App

. 2012). We indulge a strong presumption that counsel rendered adequa te assistance an d acted in furtherance of sound trial strategy. Strickland , 466 U.S. at 689; Jimenez , 364 S.W.3d at 883. To overc ome the presumption of

reason able professional assistance, an allegation of i neffective assistanc e must be firmly rooted in t he record. Sa li nas v. State , 163 S.W.3d 734, 740 (Tex. Crim. App

. 2005).
As relevant here, “ reasonable profession al assistance ” requ ires that counsel convey plea offers to the defendant and give the defend ant the b enefit of counsel ’ s professional a dvice on the decisi on o f whether t o plead guilty. Walker , 651
S.W.3d at 13. This include s 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 p rejudice in a clai m of ineffec tive assistance of counsel in
which a defendant rejects a plea offer b ecause of bad legal advice, the defendant

mu st show a r easonable probability that: (1) he w ould have accepted the earlier
offer if counsel had not given in effective assistance; (2) the State would not have
withdrawn the offer; and (3) the trial court woul d not have refused to accept the plea bargai n. Ex parte A rgent , 393 S.W .3d 781, 78 4 (Tex. C rim. App

. 2013).
Here, w e conclude the trial co urt did not ab us e its discretion in denying Appellant ’ s motion for new trial alleging ineffective assistance of coun sel.8

Spe cifically , t he record does not show a “ f irmly rooted ” allegation of ineffective

ass istance with respect to Appellant ’ s and She arer ’ s communicatio n s regarding th e four

- year plea bargain offer o r any terms attached thereto

. See Salinas , 163
S.W.3d at 740.

Shearer said he took o ver Appellant ’ s representation in July 2021, at which
time the four

- year plea bargain offer was avai lable. Sh earer said App el lant was
stil l u nwilling to accept the four

- year offer six mo nths later. In May 2022 (approximately 10 months after Shearer took ove r Appel lant ’ s representation),
Shearer received an email from the State ’ s pro secutor informi ng him that (1) the
four

- year o ffer was “ charitable ” but would be honored no n etheless, and (2) the
offer would be una vailabl e “ if [Appellant] move [d] forward with t he motion to
suppre ss. ”

She arer testified that he forwarded the email to Appel lant via text message; thes e text message s were admitted into evidence. Shearer said he

“ comm unicat e [ d] t o [Appellant] that if [they] .

. . moved forward with the motion to suppress the four TDC was going to be off the table. ” Recounting hi s plea discussion s with Appellant, Shea rer said Appel la nt was continually relu c tant to ta ke the four

- year offer and instead requested that She ar er

secure a better plea offer or get the charges dismissed . In Jun e 2022, Shearer said Appellant “ be grudgingly ” agreed to take th e four

- year offer but “ want [ed] to ta lk about it with [his] family first. ” She arer said he then texted appellant on July 17, 2022, in a “ last ditch effo rt, ” telling Appellant he “ need[ ed] to know as soon as possible ” if Appellant wanted to take the four

- year offer. Shearer s aid Appellant

“ t urned [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 u navailable. Shearer ackn owledged9

that the prosecutor informed him the four

- year off er would be off t he table if he

“ moved forward” with the motion to suppress. Shearer testified that he did not
violate this condition because h e “ had not presented the motion to suppress. ” According to S h earer, he “ wasn ’ t going to proceed with a motion to s uppress if [Ap pe llant] took the f

ou r years. So [he] had to get an answer from [Appellant] first as to whether [Appel lant ] could accept the f our years. ” Considered in the light most favorable to the trial court ’ s ruling ( Parker , 4 6 2
S.W.3d at 562 ), this evidence suppo rts the con clusion that Shearer conveyed the plea bargain offer to Appellant, including the necessary details regarding what
would trigg er its re vocation. Moreover, t he evidence also shows that Shearer
communicate d with Appellant for approxi mately one yea r r egarding whether Appella nt would accept the four

- year offe r and repeatedly asked Appellant for his
dec ision

. Because the record befo re us contains some evidence that Shearer informed Appellant about the State ’ s offer and any conditions ap plicable to th at offer, Appellant has failed to demonstrate Shearer ’ s representation was deficient.
T h er efore, Appella nt has failed to satisfy the fi rst prong of the Stri ckland test. See
Strickland , 466 U.S. at 689

. O n appeal, Appellant points to the evi dence he prese nte d at the new trial hearing suggesting that he was unaware the four

- year offer was condition ed on withdrawal of the motion to suppre s s. But this evidence was con tradicted by
Shearer ’ s tes timony and the tex t message exhibit s showing that Sh earer forwarde d

t he prosecutor ’ s May 2022 email to Appellant . Because the trial court ’ s resolution
of thi s conflict is neither arbitra ry n or unreasonabl e, we defe r to its resolution. Se e Webb , 232 S.W.3d at 122

. We overrule Appel lant ’ s sole issue on appe al.10 C ONCLU SIO N

We affirm the trial court ’ s judgment

.

/s/ Mea ga n Hassan J u st ice

Pan el consis t s of Chief Justic e Christopher and Just ice s Bourliot and Hassan

. Do Not P ublis h

— Tex. R. App. P. 47.2(b).