Affirmed and Memorandum Opinion filed November 7, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00483-CR

CHARLES E. WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 25th District Court

Colorado County, Texas

Trial Court Cause No. 11-029

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

Appellant Charles E. Williams appeals the denial of his motion for new trial 

following his adjudication of guilt for indecency with a child by sexual contact. In 

a single issue, he argues he was ineffectively counseled to plead guilty in a 

separate misdemeanor case and that the plea ―hamstrung‖ his defense in this case. 

Insofar as appellant collaterally challenges his misdemeanor conviction, we lack 

jurisdiction to address his collateral attack on a judgment that is not before us in
2

this direct appeal. Insofar as appellant argues that his misdemeanor counsel 

provided ineffective assistance in this case, we disagree because counsel provided 

a reasonable strategic basis for advising appellant to plead guilty to the 

misdemeanor. As a result, we affirm.

BACKGROUND

In 2011, appellant pleaded guilty to indecency with a child by sexual 

contact, a second-degree felony punishable by imprisonment for up to twenty 

years. Tex. Penal Code Ann. §§ 12.33, 21.11(a)(1), (d) (West 2011). The trial 

court did not find appellant guilty, but instead fined appellant $1,000 and deferred

the adjudication of guilt pending completion of five years‘ probation. See Tex. 

Code Crim. Proc. Ann. art. 42.12 § 5 (West Supp. 2013). Less than three months 

later, appellant allegedly committed an assault, and the State charged him with a 

class A misdemeanor punishable by confinement for up to one year. See Tex. 

Penal Code Ann. §§ 12.21, 22.01(a)(1) (West 2011).

Based upon the misdemeanor assault and other probation violations, the 

State moved to adjudicate appellant‘s guilt in the felony indecency case now 

before us on appeal, and to revoke his probation. Adjudication proceedings like 

this one are neither criminal nor civil; they are administrative. Canseco v. State,

199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref‘d). The State 

must prove by a preponderance of the evidence that the defendant has violated a 

condition of his community supervision. Id. at 438–39. 

Different counsel represented appellant in the misdemeanor case and the 

felony adjudication case. Although this is an appeal of the felony adjudication, 

appellant‘s only issue is that his counsel in the misdemeanor case rendered 

ineffective assistance. Two days before a scheduled hearing on the motion to 

adjudicate, misdemeanor counsel advised appellant to plead guilty in the 
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misdemeanor case. In exchange for this guilty plea, appellant received an eightyday jail sentence. No court reporter attended appellant‘s misdemeanor plea, so 

there is no transcript of that proceeding. 

According to appellant, misdemeanor counsel‘s advice to plead guilty 

hamstrung his defense at the adjudication hearing in the felony case two days later.

At that hearing, appellant pleaded ―true‖ to several probation violations, including 

the misdemeanor assault. In exchange for appellant‘s plea of true, the State 

recommended a sentence of four years in prison. The trial court rejected the 

State‘s recommendation. Then, without allowing appellant to withdraw his plea, 

the trial court sentenced him to prison for twenty years.1 

Appellant moved for a new trial in the felony adjudication case based upon 

ineffective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, 

§ 10. He had no complaints regarding the counsel assigned to represent him in that

case, but argued that his misdemeanor counsel should not have advised him to 

plead guilty in the misdemeanor case. The adjudicating court held a hearing on the 

motion, and misdemeanor counsel testified.

Counsel explained that he consulted with appellant, and both agreed it was

best to keep the State from emphasizing the details of the misdemeanor assault

details in the felony adjudication hearing. To accomplish this strategy, they

decided to accept the State‘s plea offer in the misdemeanor case. The alternative, 

misdemeanor counsel explained, was to plead not guilty to the misdemeanor and 

force the State to establish the misdemeanor assault in the adjudication hearing 

through live testimony. Appellant and misdemeanor counsel rejected this option 

 

1

The plea agreement stated that ―the trial court is not bound by a plea agreement, if any, 

between the defendant and the State. If the trial court assesses a punishment different from that 

recommended by the State, the defendant has no right to withdraw the plea.‖ 
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because, according to counsel, ―[appellant] thought it was better strategy to 

minimize . . . the Judge‘s knowledge of what happened in th[e] misdemeanor 

case.‖ 

The adjudicating court denied the new trial motion. Neither party requested 

findings of fact or conclusions of law, and the court made none. This appeal 

followed.

ANALYSIS

I. Standard of review

We review a trial court‘s decision on a motion for new trial for an abuse of 

discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). 

Under this standard, an appellate court should uphold a trial judge‘s ruling unless it 

is outside the zone of reasonable disagreement. Hall v. State, 283 S.W.3d 137, 165 

(Tex. App.—Austin 2009, pet. ref‘d). In the absence of express factual findings, 

we view the evidence in the light most favorable to the trial court‘s ruling and 

assume that the trial court made implicit findings of fact that support its ruling as 

long as the record supports those findings. Id.

II. We cannot give appellant a new trial in the misdemeanor case, and he is 

not entitled to a new trial in this case. 

Appellant moved for a new trial below, and he prays on appeal for us to 

―remand for further proceedings consistent with this Court‘s opinion,‖ by which 

we assume he means ―remand for a new trial.‖ But appellant has omitted one 

crucial detail in his new trial requests: A new trial in which case? 

The answer makes a difference. To the extent appellant wants a new trial in 

the misdemeanor case, we cannot order one in this appeal. As explained below,

appellant cannot collaterally attack his non-void judgment of conviction in another 

case by appealing his adjudication of guilt in this one.
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But it is not entirely clear that appellant is attempting such a collateral 

attack. He appears to argue that although misdemeanor counsel was not assigned 

to represent him in this case, counsel nonetheless provided ―Assistance of 

Counsel‖ in the adjudication proceeding that we now review and did so 

ineffectively, entitling appellant to a new adjudication hearing. See U.S. Const.

amend. VI. To the extent appellant argues that misdemeanor counsel rendered 

ineffective assistance in this case, we have jurisdiction and will address his sole 

issue on appeal. In addressing this issue, we conclude that the trial court did not 

abuse its discretion by implicitly finding that counsel rendered effective assistance. 

Therefore, we affirm.

A. To the extent appellant attempts to attack the misdemeanor 

judgment collaterally in this direct appeal of the felony 

adjudication, we lack jurisdiction.

Insofar as appellant seeks to attack his misdemeanor judgment of conviction, 

he has gone about it the wrong way. Appellant should challenge the misdemeanor 

by appealing the judgment in that case, not this one. In this appeal, the only 

collateral challenge appellant can even arguably raise against the misdemeanor 

judgment is voidness. See Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 

2001) (―A void judgment is a  ̳nullity‘ and can be attacked at any time.‖). 

But judgments are void only in very rare situations—usually due to a lack of 

jurisdiction. See id. at 668. Appellant does not contend that the misdemeanor 

judgment is void, and we see no reason why it would be. See id. at 669 

(―[I]neffective assistance of counsel claims and involuntary plea claims do not, if 

meritorious, make a conviction void . . . .‖). Because the misdemeanor judgment

here is not void, the trial court could not entertain appellant‘s collateral attack on 

that judgment, and neither can we. See id.
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In analogous circumstances, the Court of Criminal Appeals has held that a 

valid judgment in one case cannot be collaterally attacked on direct appeal of

another. For example, a defendant generally cannot attack a prior conviction used 

as a penalty enhancement when appealing the judgment that is enhanced. Rhodes 

v. State, 240 S.W.3d 882, 887 (Tex. Crim. App. 2007). ―Such a collateral attack is 

permitted only if the prior judgment is void, and not merely voidable.‖ Id. A 

defendant who pleads guilty and receives deferred adjudication faces a similar 

limitation. Jordan v. State, 54 S.W.3d 783, 785–86 (Tex. Crim. App. 2001). He 

normally cannot attack his original guilty plea collaterally when directly appealing 

a subsequent adjudication of guilt—unless the plea is void. Id.

The reasoning of these cases applies with even greater force to the facts 

here. In the examples above, the judgment under review on direct appeal 

necessarily relied upon the prior conviction or plea. That is, a court can impose an 

enhanced punishment based on a prior conviction, or adjudicate guilt based upon a 

previous guilty plea, only if the necessary conviction or guilty plea actually exists. 

Thus, by collaterally attacking the prior conviction, the defendant seeks to remove 

an essential component of the judgment actually on direct appeal. If the prior 

conviction falls, so too does the judgment before the appellate court. As a result, 

the prior conviction‘s validity is squarely at issue. Yet the only basis upon which 

the defendant can attack the prior conviction is voidness. See id.

In this case, by contrast, the misdemeanor judgment was not even necessary 

for the trial court to adjudicate appellant‘s guilt. Even without it, the court had the 

power to rule as it did provided it reasonably concluded that appellant violated his 

probation. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The 

court could have reached this conclusion by hearing evidence of the violations,

relying upon appellant‘s conviction, or—as actually happened—by appellant 
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admitting the violations with a plea of true. Moreover, to adjudicate appellant‘s 

guilt, the trial court needed to find only one of the multiple violations to which 

appellant admitted. See Dansby v. State, 398 S.W.3d 233, 240 (Tex. Crim. App. 

2013). The conviction itself was unnecessary.

Because collateral judgments that are essential to the judgment at issue can 

be reviewed on direct appeal only for voidness, appellant‘s attack on a judgment 

that is unnecessary is also, at most, reviewable only for voidness. Thus, assuming 

appellant can collaterally attack his misdemeanor conviction in this appeal at all, 

he would have to establish that the misdemeanor judgment is void.2 Appellant has 

neither made nor attempted such a showing. As a result, insofar as appellant

collaterally attacks the misdemeanor judgment based upon ineffective assistance of 

counsel in the misdemeanor case, we lack jurisdiction to consider that issue in this 

direct appeal of the felony adjudication.

B. To the extent appellant argues that misdemeanor counsel was his 

attorney in this case, he failed to show ineffective assistance.

Insofar as appellant requests another adjudication hearing, we understand 

him to argue that, for constitutional purposes, misdemeanor counsel was his 

attorney in this case—even though misdemeanor counsel was assigned only to 

another case and appellant had separate counsel in this case.

3

 This argument raises 

 

2 Because ―[a] void judgment is a  ̳nullity‘ and can be attacked at any time,‖ we assume 

without deciding that appellant could collaterally attack the misdemeanor judgment on the basis 

of voidness in this direct appeal. Nix, 65 S.W.3d at 667–68.

3

It is unclear how granting appellant another adjudication hearing would alter the result. 

As discussed above, the misdemeanor conviction would remain in place. Moreover, appellant 

does not contend that his counsel in this case was ineffective for advising him to plead true under 

the circumstances. As a result, if we granted appellant‘s request for another adjudication 

hearing, it appears that he would plead true again and we see no reason that the trial court would 

not impose the maximum sentence again. Nonetheless, because we conclude the trial court did 

not abuse its discretion by denying appellant‘s new trial motion, we need not address whether an 

improper denial of the motion would have been harmless error. See Tex. R. App. P. 44.2.
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the following question: Can a defendant raise a claim of ineffective assistance 

based upon crucial advice supplied by an attorney who was not assigned to his

case? Compare Stoia v. United States, 22 F.3d 766, 770 (7th Cir. 1994) (where 

lawyer was not counsel of record, but secretly ― ̳called the shots‘ and thus directly 

controlled many aspects of [the] defense,‖ lawyer‘s conduct was subject to 

ineffective assistance claim), with United States v. Martini, 31 F.3d 781, 782–83

(9th Cir. 1994) (per curiam) (where defendant got plea advice from ―a lawyer who 

was not representing him in the case and who was completely unfamiliar with the 

facts and legal issues involved,‖ advice was not ―advice of counsel within the 

meaning‖ of the Sixth Amendment). We need not answer this question here. Even

assuming that misdemeanor counsel was appellant‘s attorney in this case, the trial 

court‘s implicit finding that counsel rendered effective assistance was not an abuse 

of discretion. 

When a defendant enters his plea upon the advice of counsel and 

subsequently challenges the voluntariness of that plea based on ineffective 

assistance of counsel, the plea‘s voluntariness depends on (1) whether counsel‘s 

advice was within the range of competence demanded of attorneys in criminal 

cases and, if not, (2) whether there is a reasonable probability that, but for 

counsel‘s errors, the defendant would not have pleaded guilty. Ex parte Morrow, 

952 S.W.2d 530, 536 (Tex. Crim. App. 1997), overruled in part on other grounds 

by Taylor v. State, 109 S.W.3d 443 (Tex. Crim. App. 2003). We focus our analysis 

on the first element. Appellate review of counsel‘s representation is ―highly 

deferential and presumes that counsel‘s actions fell within the wide range of 

reasonable and professional assistance.‖ Bone v. State, 77 S.W.3d 828, 833 (Tex. 

Crim. App. 2002).
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Moreover, a claim of ineffective assistance of counsel must be decided 

based upon the particular circumstances of each individual case. Ex parte 

Harrington, 310 S.W.3d 452, 459 (Tex. Crim. App. 2010). We will not secondguess strategic or tactical decisions made by trial counsel unless the challenged 

conduct was ―so outrageous that no competent attorney would have engaged in it.‖

Id. (internal quotation marks omitted). Of course, when no reasonable trial 

strategy could justify trial counsel‘s conduct, counsel‘s performance falls below an 

objective standard of reasonableness as a matter of law. Id.

Although ―[a] reviewing court will rarely be in a position on direct appeal to 

fairly evaluate the merits of an ineffective assistance claim,‖ see Salinas v. State, 

163 S.W.3d 734, 740 (Tex. Crim. App. 2005), here appellant‘s misdemeanor

counsel testified at the new trial hearing. As a result, we can evaluate the strategic 

and tactical considerations behind his advice that appellant plead guilty. See

Depena v. State, 148 S.W.3d 461, 469 (Tex. App.—Corpus Christi 2004, no pet.)

(testimony at new trial hearing ―is one of the appropriate methods of developing an 

ineffective assistance of counsel claim for appellate review‖). Based upon 

misdemeanor counsel‘s testimony, we conclude that the trial court did not abuse its 

discretion by finding that counsel‘s strategy was not so outrageous that no 

competent attorney would have engaged in it. 

Appellant argues that misdemeanor counsel rendered ineffective assistance 

by (1) advising him to plead guilty to the misdemeanor two days before the 

adjudication hearing in this case, and (2) failing to have a court reporter record 

appellant‘s guilty plea. We conclude that misdemeanor counsel provided

reasonable strategic justifications for both decisions.

As to pleading guilty, appellant had two bad options; misdemeanor counsel 

was not ineffective for strategically advising appellant to pursue the one that 
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seemed better. Counsel testified that he advised appellant to plead guilty to the 

misdemeanor prior to the felony adjudication hearing so that the adjudicating court 

would not learn the facts surrounding the misdemeanor assault. Specifically, 

counsel said:

[Appellant] went to a Valentine‘s Day dance and physically assaulted 

an ex-girlfriend in front of . . . probably . . . a hundred witnesses or 

more and then said a lot of things during the commission that 

[misdemeanor counsel] thought would be very detrimental if [the trial 

court] heard it during [the adjudication] hearing. 

Misdemeanor counsel believed that ―[b]y [appellant] pleading [to the 

misdemeanor] case and taking care of it, the State would not bring [the facts of the 

case] up at his hearing.‖ 

This strategy appears to have worked—up to a point. At the adjudication

hearing, the State did not mention the underlying facts of the assault. To the 

contrary, the State pulled its punches. It agreed to a plea bargain under which 

appellant would have served only one-quarter of the maximum allowable sentence. 

Of course, the strategy stumbled at the final hurdle when the adjudicating court 

rejected this bargain and imposed the maximum sentence, but a strategy need not 

be successful to be effective assistance. Martin v. State, 623 S.W.2d 391, 395 

(Tex. Crim. App. [Panel Op.] 1981) (―Ineffectiveness is not shown when the tactic 

is unsuccessful.‖).

In any event, counsel testified that the other option was no better. Had 

misdemeanor counsel delayed the misdemeanor plea until after the felony 

adjudication—as appellant now argues he should have—counsel‘s ―understanding‖

was that in the felony adjudication proceeding, ―the State would have called 

witnesses from th[e] misdemeanor case to . . . go through the facts that [he] was 

trying to keep from being disclosed to [the adjudicating court].‖ Misdemeanor 
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counsel believed it was preferable for the adjudicating court to see only the 

misdemeanor conviction and that ―the punishment that [appellant] took [for the 

misdemeanor] was a lot less than the maximum.‖ As a result of this limited 

information, counsel hoped that ―[the trial court] could have considered [the 

misdemeanor] not . . . as serious as [it would have if] witnesses . . . went into the 

details of it.‖ Under these circumstances, the trial court did not abuse its discretion 

by implicitly concluding this strategy was not so outrageous that no reasonable 

attorney would have engaged in it. 

Misdemeanor counsel also provided a justification for not having a court 

reporter record appellant‘s plea. He explained that there was no reporter in the 

courthouse on the day of the plea, that the court hearing the plea was not scheduled

to hear cases the following day, and that the adjudication hearing was to occur two 

days later. As a result, to plead guilty prior to the adjudication hearing (which both 

lawyer and client agreed was the preferable course), appellant had to enter his

misdemeanor plea without a reporter. The trial court did not abuse its discretion in 

concluding that entering the plea without a reporter under these circumstances was 

not so outrageous that no reasonable attorney would have done so. Accordingly, 

we overrule appellant‘s challenge to the trial court‘s denial of his motion seeking a 

new trial based on ineffective assistance of counsel.

CONCLUSION

Having overruled appellant‘s sole issue, we affirm the trial court‘s judgment. 

/s/ J. Brett Busby

Justice

Panel consists of Justices Boyce, Jamison, and Busby.

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