1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals , sittin g by assi gnment.

Tex. Gov ’t Code A nn. §75.0 02(a)(1) (Vernon S upp. 200 4).

2 Our prior opinions are Champi on v. Sta te , No. 07-00-575-CR(Tex.App.–Amarillo February 20, 2001 , no pet.) ; Champi on v. Sta te , No. 07-0 0-575-CR (Tex.A p p.–Amarillo October 4, 2001, no pet.); and Champion v. State , 82 S.W.3d 79 (Tex.App.–Amarillo 2002, no pet.). NO. 07-00-0575-CR NO. 07-00-0576-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E JANUARY 30, 2004

______________________________ OLLIE GRAY CHAMPION, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 179 TH DISTRICT COURT OF HARRIS COUNTY; NOS. 8413 83 and 8 41382; H ONORABLE MICHAEL WILKINSO N, JUDGE

_______________________________ Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. 1
This will be our fourth opportunity to address the compan ion appeal s brought by appellant

Ollie GrayChampion. 2 In the appeals, he challenges his conviction, after an open plea of guilt

y, on twocounts of aggrava ted sexu al assau lt. H i s challenges are premised2

on claims that he was deprived of the effective assistance of counsel and his ple as were notmade knowingly and intelligently be cause his trial counsel misled him as to the range of punishment attached to the offen ses. Disa greeing that rever sal is re quired, we affirm the judgme nts of thetrial co urt.
As a resultof an in vestigati on of sev eral sex ual assa ults involving t he same v ictim, in January 2000, appellant gave police a s tatemen t in which he admitted committing two offenses. In April 2000, hewas char ged with the two counts of aggravated sexual assault. He was represented in both cases by retained co unsel. Appellant

pled gu ilty toboth charges without an agreement as to punishment. In the
course of his pleas, he made a judicial confessi on and executed a waiver o f his righ ts to jury trials or to confront or cross-examine witnesses. In each case , he also executed a waiver of his ri ght to ap peal. The trial court accepted the pleas, found appellant guilty, and ordered the prep aration of a pre-se ntence i nvestiga tion repo rt. See Tex. Co de Crim. Proc. Ann. art. 42.12 § 9 (Vern on Supp. 2004). At the hearing on the report, appellant presented testimony and exh ibits. T he trial court ass essed ap pellant’ s punish me nt in each case at 35 years co nfinemen t in the I nstitutio nal Divi sion of t h e Texas Department of Criminal Justice and a $10,000 fine.
On Novembe r 2, 2000 , appell ant filed pro se mo tions for newtrial and notices of appeal in each case. In his p leading s, he soug ht to challenge the voluntariness of his plea, the punishment assessed and the effecti veness of his trial counsel. He also fil ed an affidavitof indigence and requested the appointment of ap pellate counsel. In his motions3 See Anders v. California , 386 U.S . 738, 87S.Ct. 139 6, 18 L.E d.2d 493(1967). 3 for new trial, he asserted he was not properly in formed as to his waiv er of rights and his pleas were induced by his attorney’s representations that he would rece i ve probation. However, because the motions were not presented to the trial court as required by Texas Rule of Appellate Procedure 21.6, no hearing was held and it was overruled by operation of law. T ex. R. A pp. P. 21 .8(c).
In a February 21, 2001 opinion, we abated the appeals for the appointment of counsel on appeal. In June 2001, appellan t’s first appellate counsel submitted an Anders 3 brief in which he certified that there were no meritorious issues on which to predicate an appeal. He also

sought l eave towithdraw from the case. Appellant filed a p ro se brief in which he advanced several grounds asserting he was en titled to a hearing on his motions for new tria l. In our second opinion, issued on October 4, 2001 , we found the factual and proc edural post ure of the cases mirrored those discussed in Prudhom me v. St ate , 28 S.W.3d 114 (Tex . App.–Texarkana2000, no pet.). In that case, the court held the filing of
a motion for new trial to be a critical stage implicating the constitutional right to the effective assistance of

counsel. In that opinion, we abated theappeals for the appointment of new appellate counsel to consider and argue an y grounds that might support the appeals. Appellant’s second appellate counsel filed a b rief in January 2002, arguing appellant
was entitled to a hearing on his motions for new trial as a necessary p rerequisi te to preserving appellant’s claim that his guilty pleas were not made knowingly and voluntarily. We agreed a nd, in a third opinion issued on April 16, 2002, again abated the appea ls to the4

trial court to conduct

a hearing on appella nt’s moti ons for new trial. Champion , 82 S.W.3d at 83-84.
Such a hearing was conducted by the trial court on September 23, 2002, and t he record has been supplemented with a reporter’s record of the hearing. The trial court also appointed attorney Ted Doebbler on appeal. On Janua ry 13, 2003, we reinstated the appeals. Af

ter appoi nte d counse l missed two dead lines se t by us fo r filing an appe llate brief, appellant sought dismissal of the appointed couns el. We overruled appellant’s motion and extended the time for filing an appell ate brief, which resulted in Do e bbler filing an Anders brief. However, because that brief did not co mply with the applicable Rules of Appella te Procedure, appellate counsel was instructed to submit acorrected brief. We denied appellant’s motion to dismiss his appell ate counsel. In August 2003, having received no corrected brief from appellate counsel, we granted appellant permission to file
a pro se brief and reiterated appellate counsel’s oblig ation to fil e a correc ted brief . On August26, 2003, appellant filed a pro se brief in w hich he asserted seven po ints of e rror. He has since fil ed th ree “supplemental briefs” in which he raised addi tional issues. Appella te counsel has filed a second brief in which he agai n pos its the record does not showreversible error. The State has now filed a brief in which it challenges the trial co urt’s jurisdiction to conduct the new trial hearing, as wel l as appellant’s supplemental briefs. Appellant’s nine po ints of error present two core issues. In his first six poi nts, as well
as his nin th point, he arg ues he did not receive the effective assistance of counse l mandated by the fe deral co nstitutio n. In each point, he alleges a separate theory why his trial counsel’s performance was deficient. In his remaining poi nts, h e challenges the5

accuracyof the record. In his seventh point, he particularly assigns error to the admission of affidavits at the hearing on his motion for new trial. In hi s eighth point, appellant argues he is entitled to a new trial because exhibits that should have been included in therecord were “los t.”
In its brief, the State init ially argues the trial court had no jurisd iction to conduct a newtrial he aring and we s hould no t conside r the evi dence pre sented at that hea ring. It also contends appellant has failed to show his counsel’s performance was deficient or that he suffered anyprejudice. The State challenges appellant’s eighth and ninth points on the ground that his supplemen tal briefs did not properly present those issues for our consideration.
We must fi rst determine if appellant’s pleas of guilty or his assertions to the t ria l court at trial thathe was satisfied with his representation preclude him from raising any of the issues presented in his briefs. In Young v. State , 8 S.W.3d 656 (Tex . Crim. App. 200 0), the court hel d “a val id plea of guilty or nolo con tendere

‘waives ’ or forfe its the ri ght to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supp orted by, the error. ” Id. at667. The grounds offered by appellant in support of his ineffective assistance of counsel claims include a challenge to the validity of his pleas because his trial counsel failed to notify him of aplea bargain o ffered by the State, and further, thathis counsel assured him he would receive probation. He alsoincludes a claim of deficient counsel performance at the punishment hearing. Inasmuch as appellant challenges the validity of his guilty pleas and co unsel’s representation after that plea, his4 Had appellant’s g u ilty pleas been given as part of a pl ea bargain, he would be

precluded from challenging the voluntariness of his ple a. See Coop er v. Stat e , 45 S.W.3d 77, 82 (T ex. Crim . App. 20 01). 6 claims are not waived by the plea , n or are t hey waived by his statement regarding his representation up to his guilty plea. 4
We next address the State’s argument that we may not consider the evidence taken atthe September 2002 hearing on appellant’s motions for new trial. The State bases that argumenton the provision in Rule of Appe llate Procedure 21.8 requ iring a ruling on a motion for

new trial within 75 days after a sentence is imposed. However, that argument ignores the constitutional basis of our April 16, 2002 opinion and judgment abating the appeals. Additionally, it repres ents a co llateral attack on that judg ment. The cases relied upon by the State either did not inv ol ve depri vations of the Six th Amendm ent right

to
coun sel in pursu ing a mot ion for n ew trial , see e.g. , State ex rel. Cobb v. Godfrey, 739 S.W.2d 47 (Tex. Crim. App. 1987), or held that procedural rulesmust yield to constitutional rights. See Trev

ino v. St ate , 565 S.W.2d 938, 941 (Tex. Crim . App. 1978) (conduct of hea ring on motio n for new trial in absenceof defen se couns el near t he end of th e tim e permitted by rule was “n ot a permiss ible al ternative ”). Moreov er, the State faile d to challenge our Ap ril 16, 2 002 judgm ent withi n the timeallotted by the R ules of A ppellate Procedure. It may not do so now.
Because it bearsupon our consideration of his remaining points, we next address appellant’s eighth point, in w h ich he argues he is entitled to a new trial because the reporter’s “records have been lost or dest royed wi th out the a ppellan t’s fault .” In supp ort7

of that proposition, he cited Rule of Appella te Procedure 50(e) and the cases interpreting thatrule. The Sta te respon ds that new issues presente d in a su pplemental brief are “not properlybefore the trial court for review,” citing Allen v. State , 795 S.W.2d 15 (Tex. App.–Houston [14 th Dist.] 19 90, no pe t.). In that opinion, the Allen court relied upon cases construing 1982 an d 1990 R ules of A ppellate Procedure and, citing Rochell e v. State , 791 S.W.2d 121, 124 (Tex. Crim. App. 1990), held that be cause the permiss ion of the court had not first been obtained, a point of error raised for the first time in a supplemental brief would not be co nsidered

. Allen v. State, 795 S.W.2d at 17. However, because the Rules of Appell ate Proce dure have undergone substantial revisionssince 19 82, we mu st look to the present rules.
Ru le of Appellate Procedure 38.7 provides “[a] brief may be amende d o r supp l emented whenever justice requires, on whatever reasonable terms the court may prescr ibe.” The rule contemplates supplemental briefs may be filed upon leave of the
court. Even though appellant did not see k permission to file the supplemental brief s i n question, the first

two werefiled at

a time when the State had the opportunity to, and did, respond to the issues raised in thosebriefs. In the interest of justice, we will consider those particular

supplemental briefs. However, appellant subm itted a third supplemental brief after the State’s b rief was filed. W e declin e to cons ider the issue rai sed in th at brief. Appellant’s reliance upon Rule of Appellate Procedure 50(e) is misplaced. Current Rule 50 addresses reconsid er ation of petition s for disc retionary review. It appea rs5 This conclusion is supported by app ellant’s reference to the “statement of facts”

rather than the “reporter’s record” terminology used in the present rules. 8 appellant

is relying on the rules as they were constituted before the 1997 revisions. 5 The relevant current rules are 34.5(e) and 34.6(f). Rule 34.5(e) provides:
If a filing designated for inclusion in the clerk’s record ha s been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court cle rk for inc lusion i n the cle rk’s reco rd or a su pplement . If the parties cannot a gree, thetrial co urt must - on any party’s motion or at the ap pe llate court’s request - determine what constitutes an accurate copy of the missing item an d order it to be i ncluded in the c lerk’s re cord or a suppleme nt. Rule 34.6(f) concerns omissions from the reporter’s record and provides: An appellant is entitled to a new trial under the following circumstances: (1) if the appellant has timely requested a reporter’s record; (2) if, without the appellant’s fault, a significant exhibi t or a significant portion of the court reporter’s notes and records has been lost or destroyed or - if the proceedings were electronic ally r ecorded - a significant portion of the recording has been lost or destroyed or is inaudi ble; (3) if the lost , destroyed or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to the appeal ’s resolution; and (4) if the lost, destroyed, or inaudible portion of the reporter’s record cannot be replaced by agreem ent of the parties, or the lost or destroyed exhibit cannotbe replaced either by agreement of the pa rties or w ith a copy determined by the trial court to accurately duplica te with reasonab le certai nty the origi nal exh ibit.
The specifi c items ap pellant c ontends are “lost” are 1) the pre- sentence investigation report (PSI); 2) his written stateme nt to pol ice, 3) h is att orney’s notes concerning a telephone conversation mentioning a plea bargain offer from theState, and 4) an affidavit9

of Robert Peacock, Jr., an alleged second victim of an uncharged extraneous offense. The first two items arose in appella nt’s orig inal sen tencing hearing, and the second tw o concern the hearing on his motion for new trial. Former Rule 50(e) applied to bo th the clerk’s record (transcrip t) and the reporter’s record (statement of facts). However, because the present rule only provid es for a ne w trial when the reporter’s record is incomplete due to loss or destruction of records, we will consider appellant’s argument as intending to rely on present Rule 34. 6(f).
The first req uirement of the rul e is that appella nt make a timely request for the reporter’s r ecord. The only request that appears in the clerk’s record is a reference i n appellant’s pro se notices of appeal in which he a sserts his indigence and requests that the court “pay for t he transc ription of the record and all other related papers comprising the record.” Althoug h appell ant’s req uest did not desi gnate an y specifi c exhib its to be included,
see Tex. R. App. P. 34.6(f), we will view it as meeting the first requirem ent of Ru le 34.6(f )
as to omitte d items 1 and 2. T he record does not contain a reques t from app ellant f or a reporter’s recor d on the motion for new trial hearing, such a record was prepared in complian ce with o ur instru ctions on abatemen t.
The second requirement of Rule 34.6(f) is that a “significant ex hibit . . . has been lost
or destroye d.” The rule specifically only refers to an “exhibit.” Appellant’s allegatio ns that these items were lost is based solely on the fact that they do not appear in the reporter’s record. However, none of the items were introduced as exhibits at

either h earing, n or were theyrequested for incl usion in the repo rter’s reco rd. Moreo ver, the l etter from Robert Peacock, Jr. does appear i n the reco rd beforeus. App ellant’ s state m ent to the police is10

included as an attachment to the affid avit of Kenneth Mi ngledorf f. Parenthetically, appellant’s seventh point ch allenge s the admi ssion of this affid avit. Be cause the items
were neither

introduced as exhibits at the hearings or specifical ly requested for inclusion in the record, Rule 34.6(f) is not applicable. A ppellant’s eighth point is overruled.
Because appellant’s seventh point also concerns the propriety of the trial court’s admission of

evidence at the hearing on the motions for new trial, we will co nsider i t next. Appella nt argues

the trial court

erred in admitting affidavit evidence at the hearing after it had taken live testimony. The affidavits in question were thoseof appellant’s trial attorney, Kenneth Mingledorff (Kenneth), his partner Jud y Min gledorff, and their legal assistant Barbara Cox-De Rosa. Kenneth’s affidavit recited his activities in representing appellant and authenticated at tached d ocuments, including motions filed in the case, appe llant’s statement to police, and correspondence. The Mingledorffs testified at the hearing and, of course, were subject to cross-examination. Appell ant made t wo objections to the affidavit at the hearing. The first wa s nonspecific. The second was directed at the affidavit of Cox-DeRosa on the basis that she was notgoing to testify and thus was not subject to cross-examinatio n. At the conclusion of the hearing, and relying u pon Rule21.7 of the Ru les of Ap pellate Procedur e, the tri al court admitted all three affidavits. Rule 21 governs motions for n ew trial in criminal cases and specificallyprovides that a court “may receive evidence by af fidavit or otherwis e” at a hearing on a motion for new trial.11

Appellant

argues th e word “or” in Rule 21.7 prohibits the trial court from accepting both affidavi ts and tria l testimo ny. In support, he cites State v. Brunner , 917 S.W.2d 103 (Tex. App.–San Antonio 1996, pet. ref’d), and McVickers v. State , 874 S.W.2d 66 2 (Tex. Crim. App . 1993). The Statedoes not respond to this a rgument.
Both Brunner

and McVickers

addressed motions to suppress rather than Rul e 21.7 motions for new trial. Neither case supportsappella nt’s posi tion. In Brunner, the appe llate court he ld the t rial court did not err in granting a motion to supp ress, even though no evidence was presented in supp ort of themotion. Id. at 105. In McVickers, the court was considering a statute that allowed courts to determine suppression motions on the motion itself, “opposing affidavits, or upon oral testimony. ” See Tex. Cod e Crim. P roc. Ann. art. 28.01 § 1(6) (Vernon 1989). It did no t hold that use of the word “or” in the statute made acceptance of one form of evidence required, but precluded the recei pt of other forms of evidence. It also h eld th e statute did not make the rules of evidence inap plicable. McVickers, 874 S.W.2d at 666. Appellant’s seventh poi nt is overruled.
We nowturn to appellant’s ineffective assistance of counsel claims. The standards bywhich the effectiveness of counsel are set out in the s eminal case of Strickland v. Washington , 466 U.S. 668, 104 S .Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Court of Criminal Appeals in Hernandez v. State , 726 S.W. 2d 53, 57(Tex. Cr i m. App

. 1986). In order to s how trial c ounsel was ineffective, a claimant must establish two elements: 1) that his cou nsel’s p erf ormance was deficient, and 2) the deficient performance prejudiced the de fense. Strickland , 466 U.S . at 687. The first component is met byshowing that trial counsel made errors so significa nt that he was not functioning as12

the counsel guaranteed by the Sixth Amendment to the Un ited States Consti tution. Id. The second component necessitates a showing that counsel’s errors were so serious that they deprived the defe ndant of a fair tri al, i.e. , a tr ial whose result is relia ble. Id . A claimant must show that but for counsel’s errors, there is a reasonable probability that the result of the trial wo uld havebeen di fferent. Id. at 694. A re aso nable probability is one sufficient to undermin e confid ence in the outco me. Id. In making our review, we must also bear in mind there is a strong presumption that trial counsel rendered adequate assistance a nd made all significant decisions in the ex ercise of reasonable professi onal jud gment. Id. at 690. The reco rd must aff irmativel y show th e allege d ineffec tiveness

. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The defendant must establish that counsel’s errors, judged by the totality of the repre sentatio n, denie d him a fa ir trial. Strickland , 466 U.S. at 695. Additionally, we must also app ly the standard for review of rulingson motions for new trial, which is an abuseof discreti on. Lewis v. State , 911 S.W. 2d 1, 7 (T ex. Crim

. App. 199 5).
The first the oryappellant advances in support of his ineffective assistance claim is thathis trial counsel failed to file a specific motion to suppress his written statement to the police and to press that motion to a ruling. The cl erk’s record shows that couns el filed a motion to suppress evidence obtained as a result of a “search of the defendant on or about the day of his arrest,” bu t did not seek to suppress the written statement given to poli ce aboutfour months earlier. Appellant argues that suppression of the motion was required because it was obtained in violation of hi s constitution al rights as set forth in Miranda v.6 A portion of the te xt on thecopy whi ch appea rs in therecord i s cut off. 13 Arizona , 384 U.S. 436, 86 S.Ct. 16 02 , 16 L.Ed.2d 694 (1966), as well as article 3 8.22 of the Code of Criminal Procedure. Responding, the State cites Jackson v . S tate , 973 S.W.2d 954 (Tex. Crim. App. 1998), for the p ropositi on that i n order to meet Strickland requirements, appellant is obliged to prove that a motion to suppress would havebeen gran ted. Id. at 957. It argues the record shows that

the statement was given January 6, 2000, and appellant testified that he
was not arrested until May 12, 2000; thus, it concludes, appel lant was not in custody when the statement was given. That conclusion is also supported by an April 10, 20 00 complaint which recites appellant’s st atement to police and indicates that he had not yet been arrested. Acknowledging that the Mir anda procedural protections only apply to custodial interrogations, appellant argue s th at judged by the standards for determining custody articulated by the Supreme Court, he was “in custody”at the ti me of the statement. In doing so, he relies upon his affidavi t supporting h is motions for new trial. In relevant portion, it reads: [M]yconfession to this crime was coerced by the arresting officers. They told me that if

I did not talk to them they would see to i t thatI got lif e in pris on. I was scared with them constantly hoverin g over me violatin g my space. I was afraid they would hurt me so I agreed to write down what Detective Godfrey was ‘tellin g’ me towrite. I told my l awyer tha t I was no t read my r ights be fore I wrote down what G odfrey [to ld me . . . .] 6 When I a sked my l awyer t o file some sort of mo tion to s uppress t hat s tatement he said he could not do it because there was

‘no such thing as

a motion to suppre ss evide nce.’7 Stansbury v. California , 511 U.S . 318, 11 4 S.Ct. 15 26, 128 L .Ed.2d 29 3 (1994). 14 In Shiflet v. State , 732 S.W.2d 622 (Tex. Crim. App. 1985), the court recognized four general s i tuations that might constitute “custody” within the Miranda purview. They are: 1) when the suspect is physically deprived of his freedom of action in any significant way, 2) when a law enforcement officer tells the suspect that he c ann ot leave, 3) when law enforcementofficers create a situation that would lead a reasonabl e person to believe that his freedom of movement has been significantly restricted, and 4) when there is probable
cause to arrest and law enfo rcement of ficers do not te ll the su spect he is free to leave. Id

. at 629. See also

Dowthit t v. State , 931 S.W. 2d 244, 2 54 (Tex. Crim. Ap p. 1996).
The facts alleged in appellant’s af fidavit go to the voluntariness of his statement rather than whether he was in custody. The on ly Stansbur y 7 circumsta nce appl icable to the facts alleged here is the fourth, in that the statement gave the officers probable cause to arrest. E ven so, as we have noted, the record shows the statement was give n on January 6, but appellant was not arrested until May 12. Thi s is suffi cient to demonstra te that appe llant wa s allowe d to leave after th e statemen t. Appellant

had the opportun ity

to develop the record on this issue at the hearing on the motions for new tr ial. Hefailed to do so, testifyin g only th at incon siste nci es between his testimony and the statement to the police was because “I was real scared when I wrote that, I wasn’t thinking straight.” This testimony co ntroverts his clai m that theofficers dictated the statement to h im. Moreover, the fact that his counsel had already filed a15

motion to

suppress evidence obtained from a search of appell antcontroverts appellant’s affidavi t allega tion that

he said , “there was no suc h thing ( as a moti on to sup press).”
Atthe new trial hearin g, Kenne th averred that he did not pursue suppression of appellant’s statement because appellant had decided to pl ead guilty and seek probation. He asserted that had the cases gone to trial, he woul d have sought to suppress the statement. Appellant has failed to present sufficient evidence to rebut the presumption that his trial co unsel’sconduct was reaso nable an d profess ional. See Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant’s first point is overruled.
In his second point, appellant asserts that Kenneth failed to inform him that the State had offered aplea ag reement, and because of this, hi s represe ntation was ineffe ctive. In support, he cites Ex parte Wilson , 724 S.W.2d 72 (Tex. Crim. App. 1987), and Johnson v. Duckworth, 793 F.2d 89 8 (7 th Cir. 1 986), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986), for the proposition that counsel’s failure to inform a defendan t of a plea bargain offer denies the defendant effective assistance of counsel. The Court of Criminal Appeals continues to follow its Wilson holding. See Ex parte Lemke , 13 S.W.3d 791, 798 (Tex. Cri m. App. 20 00).
Atthe new trial hearing, appellant testified that Kenneth never told him the State had made an offer of 25 years confinement in exchangefor a guilty plea, and he only learned aboutthe offer

from read ing the P SI report. Howeve r, Kennet h testifi ed th at his records contained a memo by his legal assistant stating, “Ken wants to tal k with him before – Ken wants to talk with Ollie before the next setting. State is offering 25 years.” He went on to16

aver “when I talked with Ollie, he said, I’m not taking any [prison] time, you know. We can

–we ca n get wit nesses, d a da da. I said Ol lie, you know wh at I said about the trial . H e said, I’m not talk ing abou t going to trial. I’m talki ng about [the] PSI hearing .”
The evidence was conflicting as to w hether Min gledorff informed appellant of the State’s offer. Th e trial court is th e factfin der at a new trial hearing and its resolution of conflicts in the e vidence requiresdeference by a rev iewing court. Ko be r v. State , 988 S.W.2d 2 30, 23 3 (Tex. Crim. App. 1999). Here, the trial court resolved the conflicting evidence against

appella nt. We cannot say its resolution was erroneous. Thus, appellant failed to show that trial counsel did not inform him of the State’s offer. Appellant’s second point is overruled. Appellant’s third point

ineffect ive coun sel alle gation i s premise d on the basis tha t t ria l counsel guarante ed him th at he wou ld recei ve probat ion. In support of that proposition, he relies upon Ex parte Battle , 817 S.W.2d 8 1 (Tex. C rim. App. 1991), Czere v. Butler , 833 F.2d 59 ( 5 th Cir. 1987), and evidence presented at the new trial hearing.
Battle a rose out of a habea s corpus hearing in which it was u ndispute d that th e petitioner’s plea of nolo contendere was made after counsel i nformed him he could get pro bation. Ex parte Battle, 817 S.W.2d at 83. In fact, however, Battle was ine ligiblefo r probation. Because

of that fa ct, the court held Battle was deprived of reasonably effective assistan ce of cou nsel and his conv iction was revers ed. Id . at 84.
Czereinvolved a federal petition for habeas corpus resulting from denial of similar petitions filed in state courts. In order to avoid the death penalty and to obtain the dismissal17

of other charges, Czere pled guilty to two counts of seco nd degree murder resulting in his being sentenced to two consecutive life terms. The statute applicable made him ineligible for parole until he h ad served 40 years on each term or a total of 80 years. At an evidentiar

y hearing , Czere and his father alleged defense counsel told him he would be eligible for parole in 12 to 15 years. The attorney established that he had shown Czere a copyof the “brief” statute providing that those convicted of second degree murder “shall not be eligib le for pa role for f orty years .” Id. at 61. The attorney also testified that he had informed C zer e that thesentence s assesse d would be conse cutive. Id . at 62. I n its opinion, the Fifth C ircuit noted the lower court’s fact finding that Czere’s coun sel had informed him he would not be eligible for parole for 40 years. Id . at 64. In its opinion, the Czerecourt found Czere had failed to establish the prejudice prong of Strickland because he had never

claimed his inn ocence a nd the re cord showed that h is primar ymotivation in making the plea agreement was to avoid thedeath penalty. It further found that any discrepancybetw een his ac tual parole eligibility and the advice of his attorney would not have pers uaded hi m to risk t he death penalty at trial. Id.
In the prese nt case, a ppellan t testifie d at the n ew trial hearing

. His testimon y as to whathis coun sel advi sed him concernin g the ran ge of pun ishme nt was inco nsistent. At various times, he testified that Kenneth told him the rang e of puni shment was from probation to 99 years confinement, and that “if things g o right , you’ll get your probatio n.” Atother times, he averred being informed by counsel that he had to plea d guilty to g et probatio n and tha t “probati on was g uarantee d.”18

Appella nt also p resented the testi mony of afriend named Belita Bordwine and his former emplo ye r, Dan Mallory. Both witnesses had attended his original sentencing hearing and each had spoken briefly with Kenneth concerning the case. E ach of them testified that Kenne th informed them, whether explicitly or implicitly, that appel lant would be given probation. On cross-examination, the State pointed out portions of Mallory’s testimony at the sentencing hearing in which he was asked if he would hire appellant again “if the judge saw fit to place him on s om e sort of p robation or deferr ed adjudi cation.” Mallory denied that because of the conditional na ture of the quest ion, he may have misunderstood it and averred he did not believe he misunderstood Kenneth.
In response to the testimony of Bordwine and Mallory, the Stateproduced affidavi ts and te s timony from the Mingledorffs as well as Cox-DeRosa. With regard to the punishmentissue, in his affidavit, Kenneth averred that he in formed appellant that the range of punis hment was five to 9 9 years, b ut that th e court co uld gran t d eferre d adjudication on a guilty plea. He also sa id he informed appellant of his right to a jury trial and that he did file a motion to suppress. The reason he did not seek suppression of appellant’s written statement in the motion was because appellant had alre ady deci ded to plead guilty and to seek deferred adjudication at the sentencing hearing.
In her affidavit, Judy Mingledorff also stated that appellant was informed of his right to a jury trial and as to the full range of punishment. She said that appellant was also informed that a jud ge could conside r deferred adjudica tion afte r a guilt y plea. She averred thatalthough appellant’s character witnesses were told that probation had been requested, theywere never told that appellant would get probation. Further, in Cox-DeRosa ’s affidavi t,19

she stated th at she wa s on the telephon e during some of K enneth’s conversa tions wi th appellant

in which a p pellant was told the rang e of puni shment wa s from five years to life and therewas “no guarante e of a de ferred adju dication .” Moreover, both Mingled orffs testified at the new trial hearing. Kenneth testified aboutthe extensive communications he had with appellant on the te lephone, through letters, and in person. He said appell ant expressed concern about the fact that another defendantaccused of assaulting the same victim had been assessed a 3 0-year penal confinementsentence. Kenneth again asserted that he informed app ellant the could received up to a 99 year sentence, but that deferred adjudication was a possibility, although “a long shot.” He also talked about the i mportance of preparations for the sen tencing hearing and why

that was so. On the day of the hearing, Kenneth testified he went over the plea admonishments with appellant and made sure he understo od them. He said that after the hearing, he advised appellant of hi s right to app eal , but that he woul d have to obtain other counsel to represent him on appeal. He also repeated many of the ot her facts set out i n his aff

idavit.
After the hearing, the trial court was presented with a clear conflict in theevidence. Resolution of the conflict depended upon determinatio ns of the credibility and demeanor of the witnesses. Consequently, as we have noted, we must afford “almost total deference” to the trial court’s resolution of the con f licting evidence

. Kober , 988 S.W. 2d at 233 . In addition to the te stimony a t the new trial he aring, th e trial court h ad before it appellant’s October 16, 2000 affidavit supporting his motion for newtrial in which he swore he “had a drug and alcohol problem and still [has] lo sses of memory and he ad-ache s.” Under this20

record, we ca nnot say that the trial court’s resolution against appell ant of the conflicting evidence was clearly

wrong. That being so, we must hold that appella nt failed to establish his trial attorney made any assurance of probation. Thus, the Bat tle r ationale is not applicable. Appellant’s third point of e rror is overruled.
In his fourth point, appellant argues his trial coun sel was inef fective because he failed to pr ep are adequately for the sentencing hearing. Specifical ly, the deficiencies argued a re that he failed to read the complainant’s statement or view the complainant’s videotaped statement

. Kenneth testified that he did not view avideotape and was unable to recall if such a tape had been made. There was no discussion concerning any written statement made by th e compla inant.
In response, the State posits that appellant “failed to establish the complainant even made a videotaped stat ement.” However, the record reveals that the State had filed an affidavitto establish probable cause based upon the videotape. The State’s A pril 10, 2000 complaintincorporated an affidavitby an assistant district attorney that they “witnessed the video taped interview of the complainant, 12 year old N. P.” Parenthetically, nothing in the record sh ows that the compl ainant ma de a writ ten statem ent.
Kenneth testified that it would have been important to rev iew the vid eotape “if we
were going to

trial,” b ut he was

not sure it w as impo rtant for the sentencing hearing because he did not want to conduct a lengthy cross-examination of the child at that hearing. He conceded that

by not review ing the tape, he would not know if she had made an incons istent st atement at the hearing. Appellant argues that this failure allowed the21

compla inantto testify to numerous extraneous offenses without objection and prevented counsel from challenging her credibility.
We cannot a gree that

counsel ’s failu re to conduct an extended cross-examination of the child complainant was not reasonable trial strategy. Counsel could well ha ve concluded that a vigorous cross-examina tion o f the chi ld woul d have el icited mo re sy mpathy for the victim, thereby causing appellant more harm than the possi b ility o f exposing an inco nsistenc y in her testimony

would b enefit hi m. Additi onally, at a p unishmen thearing, a trial court is permitted to consider evidence that would not be admissible at the guilt-innocence phase. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2004). Appellant has not met his b urden to overcome the presumption that trial counsel furnished him reasonable and professiona l represen tation. A ppellan t’s fourth point is overruled.
In his fi fth point, appellant makes three additional complaints concerning trial counsel’s perfor mance. He argue s his cou nsel was ineffect ive by fa iling to object to extraneous offenses mentioned in the PSI report, by failing to se ek a continuan ce of the sentencing hearing, and by f ailing to make a sufficiently specific objection to hearsay containe d in the PSI repor t.
We wil l consider appellant’s two complaints concerning counsel’s asserted failure to object to the PSI report toge ther . Althou gh he do es not sp ecifical ly cite to them, appe ll ant’s argument

concerni ng the ex

traneous offenses and the h earsay ev idence a re clearlybased up on the Ru les of Ev idence. See Tex. R. E vid. 404 (b) (extr aneou s22

evidence ), an d 802 (hearsay). He also argues that the failure to object waived a ny complaintto which he might have been entitled because of the admission of those matters. See Tex. R. App. P. 33.1. However, the Court of Criminal Appeals has recently reiterated its view that the rules of evidence do not ap ply to t he contents o f a PSI re port. Fryer v. State , 68 S.W.3d 628, 631 (Tex. Crim. App. 2002). That exception would also include rules pertaining to hearsa y. Brown v. State , 478 S.W.2d 550, 551 (Tex. Crim. App. 1972). Thus, the objections appellant sought would have be en unavailing and counsel’s failure to make them would not make his representation ineffective. Appellant’s other argument under thi s point is directed at trial counsel’ s failureto seeka continuance. He argues that the record shows Kenneth received the PSI r eport “no
more than 30 minutes p ri or to t he hearing.” The record shows that at the sentencing hearing, Kenneth “objects to the fact that [he] received [the PSI report] about 30 minutes” before the hearing and did not have time to “dig est all of it.” It also reflect s that the trial court planned to “recess for a while” bef ore compl eting the hearing. The court asked counsel if that would provide en ough timeor if he wanted acontinu ance. Ke nneth responded, “I would rather proceed today.” Appellant argues, without citation of relevant authority , that “mos t attorneys” would have req uested th e hearin g be rese t.
Atthe new

trial hearing, Kenneth testified that his reference to “30 minutes” was an “exagge ration.” He also thought the court did take a recess, though it was n otreflected in the record of

the sente ncing he aring. H e averr e d that prior to the hearing, appellant told him he wanted to proceed because the witnesses were already presentand he a greed wi th thatdecision. He also testified that the PSI repo rt did not contain an y new or surprising23

information or alleg ations. Appellant testified that the Ming ledorffs visited with him before the sentencing hearing and told him they had not recei ved th e PSI report yet. Appellant “believed” he asked Kenneth if he thought a reset would be in order and Kenneth said no.
The authority and procedure governing PSI reports is article 4 2.12 § 9 of the Code of Criminal Procedure. In relevant part, it provides: (d) Before sentenc ing a defendant, the judge shall permit the defendant or his coun sel to re ad the pr esentence report. ( e) The judg e shall allow the defendant or his a ttorney to comment on a presentence investigation . . . report an d, with t he approval of the judge, introduce testimony or

other information alleging a factual inaccuracy in the investig ation or report.
Tex. Code Crim. Proc. Ann. art. 42.12 § 9(d) and (e) (Vernon S upp. 200 4). This pr ocedure does notcontempl ate a full evidentiary hearing on a PS I report. For example, although the State has access to the report, the article does not eve n provid e for the State to present evidence establishing its contents. Appellant has no t presented any argument showing whatadditional evi dence could have been produced if the h earing had been continued. Absentsuch a showing, appellant could not meet the harm element required by Strickland

. Moreover, at the new trial hearing, the court was presented w ith conflicting evidence concerning whether app ellant expressed a wish to proceed with the he aring or to have it
re set. The record before us does not support a holding that the trial court’s evident resolution of that q uestion against appella nt was in error. Weoverruleappella nt’s fifth point.24

In his sixth point, appellant compla ins of Kenneth’s failure to object to the State’s closing argument based upon the PSI report when the report had not been received into evidence. Citing Stiles

v. State , 927 S.W.2d 723, 733 (Tex. App.–Waco1996, no pet.), he asserts the prose cutor’s a rgument was subjec t to objec

ti on because it was outside the evidence. The Sta te respon ds with atwo-fold argument . First, i t argues, the PSI re port
was properly

before th e court by

statutory

provisi on. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(d) (Vernon Supp. 2004). Second, it contends, the report was treated byboth the court and the parties as though it had been admitted into evidence and should be considered as admit

ted. See Vargas v. State, 838 S.W.2d 552, 559 (Tex. Crim. App. 1992) (Baird, J ., dissen ting).
Article 37.07, section 3(d) provides that when a judgeassesses punishment, he may order a PSI report by virtue of article 42.12 and, “a fter considering the report, and after hearing of the ev idence .

. . he shall forthwith announce his sentence in open court.” The State is correct that the statute s upports i ts argumen t that thereport wa s properl y before the court and could be incorporated in the State’ s closing argument. Moreover, the discussion in Stiles

and related cases concerns the proper perimeters of jury arguments. Here, punishmentwas assessed by the trial court rather than a jury. Because the State’s argumentwas not subject to objection, trial counsel ’s perfor m ance was not deficient because of his failure to object. Appellant’s si xth point is overruled.
In sum, all of appellant’s points are overruled and the judgment of the trial court is affirmed.25 John T. Boyd Senior Justice Publish

.