1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-14-00177-CR



### _________________ EX PARTE AVERY JACOB POLLOCK

___________________ __________________ __________________ _________________ On Appeal from the County Court at Law No. 2 Montgomery County, Texas

Trial Cause No. 14-27980

___________________ __________________ __________________ _________________ MEMORANDUM OPINION Avery Jacob Pollock appeals an order denying his post-conviction application for writ of habeas corpus on the ground that he received ineffective assistance of counsel during the guilt-i nnocence stage of trial and at the postconviction stage. We affirm. I. Background Pollock and Krista Waid have a hist ory of domestic violence cases against each other. On August 8, 2013, Pollock was arrested for assaulting Waid. The arrest record indicates that Pollock told the police officer that he and Waid had gotten into an argument and Waid would not let him go, so he pushed Waid off of2 him. Waid reported that she woke Pollo ck and as a result, he became angry and started cursing and yelling at her. She cl aimed he continuously threw her to the floor and squeezed her face “‘as hard as he could.’” Pollock was arrested and charged. Pollock pled guilty to the misdemeanor o ffense of assault, family violence.
See Tex. Penal Code Ann. § 22.01 (West Supp. 2013). The trial court found Pollock guilty and assessed punishment at thirty days of confinement. The judgment indicates that the trial court adm onished Pollock of the consequences of his plea, found Pollock mentally co mpetent, and found Pollock freely and voluntarily entered the plea. Pollock filed a motion for new trial, wherein he argued that he did not understand his options or the ramifications of his guilty plea and thus, his plea was involuntary. The trial court conducted a h earing on Pollock’s motion for new trial, but continued the hearing without having issued a ruling. By the time the court reconvened the hearing on Pollock’s motion for new trial, seventy-five days had passed since the imposition of Pollock’s sent ence, and the trial court no longer had jurisdiction to rule on the motion. T hus, Pollock’s motion for new trial was overruled by operation of law. See Tex. R. App. P. 21.8( a), (c) (stating that a motion for new trial that is not timely ruled upon is denied by operation of law3 seventy-five days after the original sentence is imposed or suspended in open court). 1 On March 5, 2014, Pollock filed an a pplication for writ of habeas corpus alleging he was denied effective assistan ce of counsel during the plea process and during the post-conviction stage. After a hearing, the trial court denied Pollock habeas relief. Pollock appeals fr om the denial of habeas relief. 2
II. Standard of Review We review a court’s de termination on an applic ation for writ of habeas corpus for abuse of discretion. Ex parte Klem , 269 S.W.3d 711, 718 (Tex. App.— Beaumont 2008, pet. ref’d). In reviewing the trial court’ s decision, we review the facts in the light most favor able to the court’s ruling and afford almost total deference to the court’s dete rmination of historical f acts supported by the record, especially when the court’s findings of fact are based on an evaluation of credibility and demeanor. Id . We apply this deferen tial standard of review

1 Pollock filed a direct appeal of his conviction on November 14, 2013. However, the trial court certified that hi s case was a plea-bargain case and that the defendant had no right of appeal. See Tex. R. App. P. 25.2(a)(2). Accordingly, we dismissed Pollock’s direct appeal. See Pollock v. State , No. 09-13-00512-CR, 2013 WL 6557558 (Tex. App.—Beaumont Dec. 11, 2013, no pet.) (mem. op., not designated for publication).

2 Pollock has discharged his sentence, but he has sufficiently alleged that he is suffering from, or could suffer from, co llateral consequences as a result of this conviction. See Ex parte Harrington , 310 S.W.3d 452 (Tex. Crim. App. 2010).4 regardless of whether the trial court’s findi ngs are explicit or implied, or based on affidavits or live testimony. Ex parte Fassi , 388 S.W.3d 881, 886 (Tex. App.— Houston [14th Dist.] 2012, no pet.). When the resolution of the raised issue turns on an application of legal st andards, we review the tria l court’s determination de

novo. Id . The habeas applicant bears the burde n of establishing by a preponderance of the evidence that the facts entitle him to relief. Id

. III. Ineffective Assistance of Counsel To prevail on an ineffective assistance of counsel claim, an appellant must show by a preponderance of the eviden ce that (1) counsel’s performance was deficient because it fell below an objectiv e standard of reasonableness; and (2) counsel’s deficiency caused the appellant prejudice—counsel’s errors were so serious as to deprive appe llant of a fair trial. Strickland v. Washington , 466 U.S. 668, 687 (1984); Garza v. State , 213 S.W.3d 338, 347-48 (Tex . Crim. App. 2007); Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. A pp. 1999). The appellant must demonstrate a reasonable probability that, but for his counsel’s errors, the outcome would have been different. Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). A “reasonable probability” is one su fficient to undermine confidence in the outcome of the proceeding. Strickland , 466 U.S. at 694; Thompson , 9 S.W.3d at 812. Our review of defense counsel’s re presentation is “highly deferential and5 presumes that counsel’s actions fell w ithin the wide range of reasonable and professional assistance.” Bone , 77 S.W.3d at 833. 1. Alleged Failure to Adequately Investigate In his first issue, Pollock contends he was denied effective assistance of counsel during the plea process because his counsel “failed to investigate the facts of the case.” Specifically, Po llock claims his counsel faile d to learn that Waid had pending assault-family-violenc e cases for assaulting Pollock . Pollock contends that this evidence supported his only viable de fense—that he acted in self-defense. Pollock contends if his counsel had prope rly investigated the case and learned of the pending cases against the complainant, there is a reasonable probability that the result of his proceeding would have been different—that is, he would not have entered a plea of guilty. “An attorney advises a client based upon an evaluation of numerous factors and considerations.” Ex parte Niswanger , 335 S.W.3d 611, 616 (Tex. Crim. App. 2011). “[C]ompetent advice re quires that an attorney conduct independent legal and factual investigations sufficient to en able him to have a firm command of the case and the relationship between the f acts and each element of the offense.” Id . at 615. “[C]ounsel has a duty to make reas onable investigations or to make a reasonable decision that makes partic ular investigations unnecessary.” Strickland ,6 466 U.S. at 691. A decision not to inves tigate “must be directly assessed for reasonableness in all the circumstances, a pplying a heavy measure of deference to counsel’s judgments.” Id . We will not reverse a convi ction unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced and there is a reasonable probability that but for counsel’s failure to advance the defense, the result of th e proceeding would have been different. McFarland v. State , 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State , 983 S.W.2d 249 (Tex. Crim. App. 1998). As exhibits to his application for writ of habeas corpus, Pollock attached the affidavit of his trial counsel and the tr anscript from the motion for new trial hearing. Pollock’s trial counsel was appointed to represent Pollock for this offense. After appointed, trial counsel obtained and reviewed the State’s file. According to trial counsel’s affidavit, the file contai ned the offense report, but there was nothing in the file or written on the file indicatin g that Waid had a pending assault-family violence case where she had assaulted Po llock. According to Pollock’s trial counsel, the prosecutor did not tell her that Waid had an open case for an assault against Pollock or that she had had a subse quent arrest for assa ulting Pollock. Trial counsel reviewed the State’s file with Po llock and allowed him to read the offense report. Pollock’s trial counsel understood from the file that an independent witness7 had observed Pollock drag eight-to-nine-month-pregnant Waid out of their home by her hair. Pollock’s trial counsel wa s concerned since the assault had an independent witness. According to Pollock’s trial counsel, sh e attempted to discuss with Pollock the events that led to his arrest, but he w ould only discuss with her “the fact that he wanted to enter a plea of guilty and get out of jail.” Trial counsel explained to Pollock that she had reservations with him pleading guilty. Trial counsel further explained to Pollock that “an assault fa mily violence conviction was very serious, and, that due to his age, it would follow him the rest of his life.” She explained, “it would be difficult for him to get a job an d that he could never own a gun.” After making her concerns known to Pollock, Pollock told his trial counsel that he did not care; he just wanted to plead guilty a nd get out of jail. Po llock’s trial counsel discussed with him the possi bility of making a bond, but Pollock responded that “he did not want to make a bond that he wa nted to enter a plea of guilty and get out of jail.” Pollock’s trial counsel asked him to allow her to reset his case so that she could investigate it, but Pollock did not wa nt to reset his case, he only wanted his trial counsel to obtain a plea offer for him to get out of jail. Thereafter, Pollock’s trial counsel negotiated a plea agreement with the prosecutor as Pollock had instructed he r to do. The prosecutor offered Pollock8 thirty days in jail, but Pollock’s trial c ounsel requested Pollock receive less time or that the State allow Pollock to plead guilty to an offense that did not have an affirmative finding of family violence. Th e State refused both of trial counsel’s requests. Pollock’s trial counsel again met with him and advised him that he should allow her to reset his case, but Pollock declined to follow counsel’s advice and decided to accept the State’s thirty-day offe r. According to Pollock’s trial counsel, he demonstrated a “very poor attitude” to ward her during the plea negotiations. According to Pollock’s trial counsel, she reviewed all the plea paperwork with Pollock. She read the documents to him and asked him if he had any questions, to which he indicated he did not. His trial counsel spent extra time working with Pollock because he was so young. She told Pollock that he and Waid needed to get away from one another a nd that if there was a second assault allegation, Pollock would be arrested for a felony offe nse. According to trial counsel, Pollock went before the judge and i ndicated to the judge that he wanted to plead guilty, that he had reviewed the plea paperwork with his attorney, and that he understood there was an affirmative finding of family violence. Pollock testified during the hearing c onducted on his motion for new trial. According to Pollock, he attempted to tell his trial counsel his side of what had transpired with Waid, but his trial counsel would not listen to him and just “tried to9 move [him] along as fast as possible.” Pollo ck told his trial counsel that he was innocent, and, at least according to Poll ock, his trial counsel told him that his innocence did not matter. Pollock approach ed the subject of a bond with his trial counsel, but she told him there was no ch ance he would get a bond and that he could not call his father to make the bond. According to Pollock, his trial counsel told him if he waited for tria l, it would be months before he would get out of jail. Pollock admitted that he signed the pl ea paperwork. Pollock does not argue that he did not read the plea paperwork, but that things happened too fast and he just wanted to be with his son. Polloc k contends that his trial counsel did not review the plea paperwork with him a nd so he did not understand what he was signing. Pollock recalls his trial counsel told him to plead guilty. He believes he did not have a choice as to how he pled and his plea was invol untary. He contends that his trial counsel did not explain to him the ramifications of an assault, family violence plea. He also contends that she did not go over the paragraph in the plea papers that reflected a finding of fam ily violence agains t a member of his household. Pollock recalls that during hi s plea hearing, he answered “yes” when the trial judge asked him if he was plea ding “guilty” freely and voluntarily. He admits that he pled guilty knowing the Stat e’s allegations against him. He admits that no one threatened him to enti ce him to enter a plea of guilty.10 In determining the reasonableness of trial counsel’s actions, we must consider Pollock’s statements and actions in determining the trial strategy his counsel pursued. See Duncan v. State , 717 S.W.2d 345, 348 (Tex. Crim. App. 1986). In Strickland , the United States Supreme Court explained: “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or acti ons. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” 466 U.S. at 691. Therefore, a defendant may not claim ineffective a ssistance of counsel when the defendant preempts his counsel’s strategy by insisting that a different defense be followed. Duncan , 717 S.W.2d at 348. The defendant has the ultimate authority to make certain fundamental decisions regarding his case, including whether to plead guilty, waive a jury, testify in his or her ow n behalf, or take an appeal. Jones v. Barnes , 463 U.S.745, 751 (1983). We further note that the Texas Disc iplinary Rules of Professional Conduct provide that an attorney must “abide by a client’s decisions: (1) concerning the objectives and general methods of represen tation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) [i]n a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to11 waive jury trial, and whether the client will testify.” Tex. Di sciplinary Rules Prof’l Conduct R. 1.02(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9) . Rule 1.02 does not require an attorney to abide by a client’s decision that w ould be criminal or fraudulent. Tex. Disciplinary Rules Prof’l Conduct R. 1.02(c). Because we review the r ecord in the light most favorable to the court’s ruling, we conclude that the trial cour t resolved the conflicts in the evidence against Pollock, and we defer to the court’ s resolution of the c onflicts. The record clearly reflects that Pollock chose to pl ead guilty, despite repeated advice from his counsel that doing so was not advisable. Pollock’s trial counsel specifically asked him to allow her to reset his case so that she could further investigate the facts. Pollock’s trial counsel fully advised him and attempted to dissuade him from pleading guilty, but he was in tent on doing so. There is evidence in the record to support that after trial counsel receive d the plea agreement from the State that Pollock requested, she reviewed the pl ea agreement with Pollock, and Pollock knowingly and voluntarily pled guilty to the State’s charges. There is no evidence or argument in this habeas appeal that Pollock’s demand of his counsel to obtain a plea ag reement for him constituted a criminal, fraudulent, or otherwise prohibited act. Pollock acknowledged his counsel’s advice12 to obtain a reset so that she could further i nvestigate his case, but he decided to risk pleading guilty without the information that his counsel could ha ve obtained if she had the additional time she told him she n eeded. Pollock not only had the authority to decide to plead guilty, but also had th e authority to determine that the objective of his counsel’s representation was to obtain a plea to get him out of jail. Accordingly, after viewing the facts in the light most favorable to the trial court’s ruling, we conclude Pollock failed to establish his counsel was ineffective by not investigating his case. Rather, counsel attempted to follow the trial strategy thrust upon her by Pollock’s insistence on pleading guilty. Because Pollock has failed to establish the first prong of the Strickland test, we overrule Pollock’s first issue. 2. Alleged Ineffectiveness in Failing to Timely Set a Motion for New Trial Hearing In his second issue, Pollock argues th at he received ineffective assistance during his postjudgment stage. Specifi cally, Pollock argues his postjudgment counsel was ineffective when he allowed th e hearing for his motion for new trial to be delayed beyond the seve nty-five day period that the trial court retained jurisdiction of the case. Without determining if Pollock’s pos tjudgment counsel was deficient in failing to timely set the continuance of th e hearing on the motion for new trial, we13 hold that Pollock has failed to show that his counsel’s failures caused him to suffer such prejudice that the outcome would ha ve been different but for his counsel’s alleged errors. See Strickland , 466 U.S. at 694; Jackson v. State , 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (holding that although motion to suppress would have been appropriate vehicle to challenge a lleged illegal search, appellant failed to prove such motion would have been granted, thereby failing to satisfy Strickland ); Redmond v. State , 30 S.W.3d 692, 699 (Tex. App. —Beaumont 2000, pet. ref’d) (“Assuming counsel’s performance was de ficient, Redmond failed to establish prejudice by demonstrating that the motion for new trial would have been granted had the trial court conducted th e evidentiary hearing.”).Pollock argues that there is reasonable probability that had his postjudgment counsel not erred in the scheduli ng of his motion for new trial hearing, the trial court would have granted his motion for new trial because he received ineffective assistance of counsel from his trial attorney. Howeve r, in our resolution of Pollock’s first issue we determined Pollock’s trial counsel did not render ineffective assistance of counsel. Po llock has not established a reasonable probability that if his postjudgment counsel had timely obtained the hearing on Pollock’s motion, the resu lt of the trial court’s pr oceeding would have been different. Thus, Pollock has failed to satisfy the second prong under the Strickland14 test to demonstrate prejudice, which defeats his ineffectiveness claim. Strickland , 466 U.S. at 700. Pollock’s sec ond issue is overruled. Having overruled Pollock’s issues, we a ffirm the trial court’s order denying Pollock the relief sought by his appli cation for writ of habeas corpus.
AFFIRMED.

________________ ______________ CHARLES KREGER Justice
Submitted on July 31, 2014 Opinion Delivered August 20, 2014 Do not publish Before McKeithen, C.J., Kr eger, and Horton, JJ.