### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 263 -CR

Cha r le s Lug o , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF WI LLIAM SO N COUNTY , 368TH JUDICIAL DISTRICT

NO. 04- 223- K3 68 , HO NORAB LE B URT CARNES , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Following a hea

ring on the State’s motions to adjud i ca t e, t h e trial c ourt rende red judgme nts convicting appellant Char les Lug o on two counts of sex ual assault of a child. See T e x. Pe na l Co de Ann. § 2 2. 01 1 ( Wes t Su pp . 200 9). Th e c ourt

a sse sse d p un ish me nt a

t tw e nty y e a rs ’ imp ri so nme nt o n e a c h c ount a nd or de re d th a t the se nte nc e s be s e rv e d c on se c uti ve ly . In tw o is su e s,
a pp e lla nt c on te nd s th a t th e tr ia l c ourt a bu se d it s disc re tio n b y

fa ili ngto c on du c t a

he ari ngon

his
mo ti o nf o r n e w tr ia l a

n d th a t h is p le a s o f

tr u e a t the adjud ic a ti o nh e ar in g w e r e inv o lu n ta r y . We
a ff ir m th e jud g me nts
.

The indictment in this cause a lleg ed four counts of sexual assault o f a chil d. The
rec ord re flec ts that the complainant wa s a fifteen-y ear -old g irl, a classmate of a ppellant’s daug hter, with whom appellant had se x ual interc ourse on the four dates alleg ed. On Apr il 25, 2005, appellant pleade d g uilty

to counts one and two pursuant to an agr eeme nt under w hich appe llant would rec eive2

five y ear s defe rre d adjudication community supervision on those counts and c ounts three a nd four would be dis posed of under section 12.45. Se e id . § 12 .4 5 ( Wes t 20 03 ); se e als o Te x. Cod e Cr im. Proc. Ann. a

rt. 4 2
. 1 2 , § 5(a) (West Supp. 2009). On May 31, 2005, the trial cour

t acc epted the ag ree ment and ente red de fer red a djudication order s confor ming to it. The State filed motions to adjudicate on J anuar y 27, 2006. The motions alleg ed that appellant violated the conditions of his supervision by g oing to a

place wher e alc oholic bever ag es
are possessed, sold, or used on J anuar y 4 and 14, 2006. At a hear ing on May 2 3 , 2 0 0 6 , ap p el l ant ple a de d tr ue to t he a lle g e d v iol a tio ns . The State’s only

witness at the adjudica

tion hearing was Canda ce B ell, who testified that she wa s a fr iend of the c omplaining witness a nd a for mer c lassmate of a

ppellant’s daug hter. Be ll testified that on t h e t wo n i gh ts in question, she saw appe llant at Gra ham Central Station, a nightc lub where alcoholic be vera g es ar e s o l d and consume d. I n his own testimony , appellant acknow ledg ed g oing to the club but offe red a n explanation for both occur renc es. Appe llant testified that on J anuar

y 4, he had ta

ken a f riend to the c lub and was about to drive aw ay without goinginside when he rec eived a

call on his ce ll phone. The c aller w as the friend’s girlfr iend, who said there was
an eme rg ency . Appellant testified t h at he we nt inside the club to find his friend a nd g ive him the cell phone. As for the J anuar y 14 incident, appellant testified that he went to the club be cause they
wer e offe ring a fre e buffe t. He denied drinking on either occa sion. During his testimony , appellant
was a sked by

his attorney , “I f the Court is willing and f eels like it’s in the intere st of society for you to be place d on a re g ular proba tion, do y ou fee l like y ou could work that? ” The State objected to the q u es t i o n , corr ectly

pointing out that ordinar y community

supervision was not a le g al option.3

See Tex. Code Crim. P roc. Ann. art. 42.12, § 3g (a) (H) (West Supp. 2009). At the conc lusion of the hear ing, the trial court a djudicated a ppellant g uilty

and imposed sentenc e as de scribed. On May 12, 2008, the cour

t of criminal appe als g rante d appellant ha beas c orpus re lief in the form of a

n out-of-time a

ppeal. The attorney

appointed to re prese nt ap p el l ant in this appeal filed a motion for new trial supported by appellant’ s statement under penalty of per jury (which w e will h er eafter r efe r to as appe llant’s aff idavit). The pr imary

alleg ation in the motion was that
a pp e lla nt’ s c ouns e l a t th e a dju dic a tio n h e ari ngre nd e re d in e ffect iv e a ssi sta nc e in t hat he fa ile d to invest ig a te th e r e le v an t f a c ts a n d la w , f a il e d to inte r

v ie w p r o s p e c ti v e d e f

e n s e w it n e s s e s, and
err oneously

advised a

ppellant that he would be elig ible for or dinary co mmunity supervision if he
wer e adjudicated g uilty . More spe cifica lly , the motion alleg ed:
Counsel failed to contac t appellant for t hree months following his appointment, and fi rs t i nt erview e d a

pp e lla nt o n th e da

y be fo re the a dju dic a tio n h e ari ngwa s f ir st s e t. At subsequent mee tings, c ounsel told appellant that, due to family matters, he had not h adt i m e t o p re p ar e f

o r t h e a d j u d i ca t i o nh ea ri n g. Appellant told counsel that his pr obation office r, Elle Eddy , advised him that it was acc eptable f

or him to e nter establishments that serve d alcohol so long as they had a food menu a

nd he did not consume a

ny alcohol. Appe llant also told counsel that employ ees of

Gra ham Central Station could confirm the f ree buffe t on J anuar

y 14, and th a t a

p p e ll an t’ s thr e e r o o mm a te s h e ar d E d dy te ll a p p e ll an t th a t h e could be aro un d a lc oh ol s o lo nga s h e did no t c on su me it. On t h e d ay o f th e h e ar in g , c o u n s e l to ld a p p e ll an t th a t th e St a te ’ s o n ly w it n e ss was g oin g to b e th e p r o b a ti o no f f ic e r s u p e r v is o r , w h o d id

n o t t e s ti f y . Wh e nc o u nsel le arn e d th a t Ca

nd a c e B e ll w a s g oin g to t e sti fy , h e a sk e d a pp e lla nt w ho sh e wa s. Ap pe lla nt t old c ouns e l th a t he did

no t wa nt to g o fo rw ard

wi th t he he ari ngbe c a

us e he be lie ve d tha t couns e l wa s unp re pa re d. Couns e l told a

pp e lla nt that it wa s b e st “ to g et this over with.”Counsel’s aff idavit was submitted to the trial court in appe llant’s post-conviction habe as cor pus 1 proce eding
. See Tex. Code Crim. Proc
. Ann. art. 11.07, § 3(d) ( West S upp. 2009). Afte r appe llant wa s g ra nte d the ou t- of

-t ime a pp e a l and the mot ion

fo r n e w tri a l w a s f

ile d, c ouns e l f

or the State wr ote a letter to the trial court a sking that the aff idavit be consider ed in re sponse to the motion. 4 Counsel advised appe llant to admit that he had enter ed Gra ham Central Station and to e xpla in wh y he ha d don e so . Couns e l told a pp e lla nt t hat e ve n if

the c ourt we re to adjudicate him guilty , there was a chanc e that the court would place him on reg ular community

supervision. Appellant plea ded true based on this er roneous a dvice.
On J u l y 2 , 2 0 0 8 , t h e t ri al co u rt s i gn ed an o rd er d en y i n g t h e m o t i o nfo r n ew t ri al wi t h o u ta h ea ri n g. By his first issue, appellant urg es that the trial court abused its discre tion by ref using to conduct a “live hear ing” on the motion for new trial. The order states that the court ove rruled the motion for new tria l after considering “the motion, the State’s response , the aff idavits of [appellant’s adjudication hea

ring counsel] a

nd the def endant, a nd the Court’s per sonal rec ollection of the he aring on the State’s motion to adjudicate g uilt.” A ppellant contends that under the c ircumstance s, he wa s entit l ed t o a hea

ring at which his attorne y at the adjudica

tion hearingcould be que stioned and the
vera city of counse l’s aff

idavit could be cha lleng ed. 1 A trial cour

t abuses its discretion if it fails t o hold a hearing on a motion for new trial raising matters that are not de terminable from the r ecor d. Ho lde n v . S tat e , 2 0 1 S. W. 3 d

7 6 , 7 6 3 ( T e x. C ri m . Ap p . 2 0 0 6 ) ( ci t i n g Re y es v . S tat e , 849 S.W .2d 812, 816 (Tex. Crim. App. 1993)). A trial c ourt
m ay, h o w e v e r , r

u l e o nt h e m o t i o nb a s e d

o ns w o r np l e a d i n g s an d

a f f i d a v i t s w i t h o u to r a l t e s t i m o n y; live testimony

is not required. Id
. (c i t i n g Ri v e ra v . S tat e , 89 S.W .3d 55, 58-59 n.9 (Tex. Crim. App. 2002)). “I t has l ong been he ld that a trial cour t may decide a motion for new

trial based on sw orn pleading s and af

fidavits admitted in evidenc e without hear ing oral t estimony .” Id
. (q u o t i n g Scaggs5

v . S tat e , 18 S.W .3d 277, 281 (Tex. App.—Austin 2000, pet. ref ’d)) . I n Holden , the court of cr iminal
a pp e a ls r e fu se d to a do pt a

pe r s e ru le that a tr ia l c ourt mus t he ar l ive te sti mony

wh e ne ve r t

he re is a fac tual dispute in the aff

idavits and a pa

rty asks for te stimony
. Id . at 764. The c ourt stated that “such a proce dure is not alwa

y s in error ,” nece ssarily imply ing that there are circ umstances in which it would be err or. Id . at 76 2. Th e tr ia l court ’s de c isi on to co nd uc t a he ari ngon

the ba sis of

a ff ida vit s alone is re viewed f

or an a buse of discr etion. Id . at 764. Both pa rties have br iefe d the question of whe ther the tria l court abuse d its discretion by c on du c tin g a

he ari ngwi tho ut l ive te sti mony . T his qu e sti on is b e sid e the po int , h ow e ve r, be c a us e t h e t ri al co u rt d i d

n o tco n d u ct a h ea ri n g. T h e co u rt ’s o rd er s t at es t h at n o h ea ri n g wa s h el d
. Al t h o u gh the c ourt purp or te d to re ly on the c on te nts of a pp e lla nt’ s and c ouns e l’ s af

fi davit s, the se do c ume nts
wer e not in evidenc e. See Sc aggs , 18 S.W .3d at 281 (stating that trial court may decide motion for new tria l based on swor

n pleading s and af

fidavits ad m i t t ed i n evidenc e). A lleg ations made in a motion for new tria l or a supporting aff idavit a re not se lf-proving and must be off ere d in evidence
a t a hear ing. Ro us e v . S

tat e , N o . PD
- 1 5 3 3

- 0 8 , 2 0 0 9 T e x. Cr im
. A p p . L E X I S 1 7 3 7 , a t * 2 2 ( T e x. Cr im. Ap p. De c . 9, 200 9) ; se e Mc In tir e v . S

tat e , 698 S.W .2d 652, 658 (Tex. Crim. App. 1985) ( s t a t i n g t h a t m o t i o n f

o r n e w t r i a l m ay b e r e s o l v e d e xc l u s i v e l y o n b a s i s o f a f f i d a v i t , b ut h e a ri ng is require d to introduce affidavit i nto evidenc e). The order overruling appellant’ s motion for ne w trial states that “[ h ] ad a h e arin g been h e ld . . . , the Court would have limited the evide nce a dmitted during the hea

ring t o witness aff

idavits pursuant to Texas Rule of Appellate Proc edure 21.7.” (Emphasis adde d.) The que stion in t his cause is not whether the trial court a bused its discretion by6

conductinga hea

ring limit ed to affidavits only , but whether the trial cour

t abused its discretion by
overr uling a ppellant’s motion for new trial without conducting a hea ring of any

kind. Appellant’s moti on for ne w trial ra ised matters not dete rminable fr om the rec ord, namely that appellant’ s counsel at the a d j u d i cation hea

ring failed to a dequate ly

prepa re f or the hear ing, f ailed to interviewor ca ll defense witnesses, and e rrone ously advised a

ppellant that he would b e el i g ible for or dinary community

supervision if he we re a djudicated guilty . But in orde r to obtain a hea

ring on a motion for new

trial alleg ing ine ffe ctive assistanc e of counsel, the de fenda nt must alleg e suff

icient fa cts from whic h a trial court could rea sonably conclude both that (1) counse l fa ile d to a c t a s a re a so na

bly c omp e te nt a tto rn e y and (2 ) b ut f or c ouns e l’ s f

a ilure , th e re is a

re a so na ble lik e lih oo d th a t th e ou tc ome of the tr ia l (he re , the a dju dic a tio n he ari ng ) wo uld have be e n d if fe re nt. Sm ith v . S tat e , 286 S.W .3d 333, 340-41 (Te x . Crim. App. 2009). I n this case, a ppellant’s motion for
n ew t ri al wa s i n ad eq u at e w i t h re s p ec tt o t h e p re j u d i ce p ro n g. Appellant did not alleg e that he w ould not have plea ded tru e an d would not have testified at the adjudication hear ing but f or counsel’s alleg ed defic iencies. I n any event, there is no
rea sonable likelihood that the trial cour t would not have a djudicated a ppellant g uilty

on the basis of Be ll’s testimony

alone, nor

is it rea sonably likely that the trial cour t would have e lected to c ontinue appellant’ s defe rre d adjudication community supervis i o n if Eddy

had testified that she advised appellant that he was pe rmitted to enter e stablishments serving alcoholic be vera g es or if othe r witnesses had c onfirmed a ppellant’s testimony

reg ardingthe re asons he entere d the ni g htclub on the nights in question. I n rea ching this conclusion, we do not rely on the statements made in counsel’s aff idavit, which is not in e vidence
. We do consider the rec ord from appellant’ s orig inal g uilty plea,7

which re fl ects that the tria l court expressed strongrese rvations about the plea barg ain placing appellant on de fer

red a djudication supervision, and that a ppellant’s sexual relationship with the complainant beg an at a nightclub not unlike the club at which appellant was seen in January 2006. As for the sentenc es imposed by the cour t after adjudicatingappellant gui l t y , o n l y t he trial c ourt could know the f

actor s that influence d t h e punis hment decision or how c ounsel’s alleg ed defic iencies, if tr

ue, mig ht have affe cted that decision. Se e Sm ith , 2 86 S.W. 3d a t 34 4. We p re su me that th e c ourt

kn e w that th e fa c ts a lle g e d in the mot ion

fo r n e w tri a l w ou ld n ot h a ve inf lue nc e d it s ultimate normative judg ment reg ardingthe prope r punishment. Id . at 345. I ssue one is over ruled. By his s e c o n d

is s u e , a p p e ll an t c o n te n d s th a t h is p le a s o f tr u e a t t h e a d ju d ic a tion hear ing w ere involuntary
. Although appellant did not raise this issue in his motion for new trial, he now contends that his attorney ’s failure to pr operly advise him r eg arding the eff ect of the pleas of true a nd counsel’s e rrone ous advice reg ardingthe av ail ability of re g ular c ommunity

supervision
r e n d e r e d t h e p l e a s i n v o l u n t ar

y. Appellant re lies in part on fa cts alleg ed in his aff idavit in support of the motion for new tria l. As we have already explained, that aff idavit is not in evidenc e. The only evidenc e bef

ore
us re le va nt t o th is c on te nti on

is c ouns e l’ s r e fe re nc e to the po ssi bil ity of re g ula r c omm un ity supervision during the adjudication hear ing. Even if we a ssume from this that counsel wa s unawa re of the fa ct t hat appe llant was not elig ible for r eg ular c ommunity supervision, there is no evidence that couns el m i sled appe llant in this respe ct or that a ppellant would not have ple aded tr ue had he known that re g ular c ommunity supervision was not an a vailable option. I ssue two is overr uled.8 The judg ments of conviction ar e af firmed.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: January

12, 2010 Do No t Pu

bli sh