Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00716-CR

EX PARTE George TROTTI

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2018CR7385-W2

Honorable Ron Rangel, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Patricia O. Alvarez, Justice

Beth Watkins, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: November 22, 2023

AFFIRMED

Appellant George Trotti unsuccessfully sought post-conviction habeas relief from a 

conviction of one count of misdemeanor assault and now appeals. We affirm.

BACKGROUND

In the underlying case, the complainant reported to police that Trotti picked her up outside 

a bus depot and raped her. A grand jury indicted him on two counts of sexual assault and he opted 

for a bench trial. The complainant testified that Trotti forced her into his car and raped her, causing 

her pain. She denied ever having worked as a prostitute. Before the defense began its case-in-chief, 

defense counsel approached the assistant district attorney to talk about the facts underlying the 

complainant’s theft conviction. The conversation led to a mid-trial plea offer to waive count two 

and “just do Count One and go on the lesser” assault-bodily injury. Trotti agreed to the offer then 
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pled nolo contendere to—and was convicted of—the misdemeanor offense of assault-bodily 

injury. On August 7, 2019, the trial court sentenced him to one year in Bexar County Jail and a 

$4,000 fine. In recognition of the fact that Trotti had already spent more than fifteen months in 

Bexar County Jail while awaiting trial, the trial court pronounced the sentence “as satisfied.”

On March 3, 2022, Trotti filed the article 11.09 application for writ of habeas corpus that 

is the subject of this appeal. Trotti, who was on parole for a previous conviction at the time he 

accepted the plea deal in 2019, alleged that his conviction for the assault-bodily injury charge 

caused his parole to be revoked. He claimed that revocation of his parole and the loss of “44 years 

of good time, [and] all of his street time” was a collateral consequence of his conviction in this 

case. He argued, in part, that: (1) this conviction is void because assault-bodily injury is not a 

lesser-included offense of sexual assault as charged in the indictment; and (2) he received

ineffective assistance of counsel, resulting in an involuntary plea. In response to the trial court’s 

order, both of Trotti’s trial counsel presented their own affidavits.

The trial court denied relief and issued findings of fact and conclusions of law. It held that 

the judgment was not void and that Trotti had not shown that his counsel was ineffective or that 

his plea was involuntary. Trotti appeals.

ANALYSIS

Applicable Standard of Review

“A defendant convicted of a misdemeanor offense may attack the validity of the conviction 

by way of habeas corpus if he is either (1) confined or restrained as a result of a misdemeanor 

charge or conviction, or (2) is no longer confined, but is subject to collateral legal consequences 

resulting from the conviction.” State v. Collazo, 264 S.W.3d 121, 125–26 (Tex. App.—Houston 

[1st Dist.] 2007, pet. ref’d). Such an applicant “must establish entitlement to such relief by a 

preponderance of the evidence.” State v. Garcia, 651 S.W.3d 506, 511 (Tex. App.—Houston [14th 
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Dist.] 2022, pet. ref’d). “An appellate court reviewing a habeas judge’s ruling in an article 11.09 

application for writ of habeas corpus must view the evidence in the record in the light most 

favorable to the judge’s ruling and must uphold that ruling absent an abuse of discretion.” Diamond 

v. State, 613 S.W.3d 536, 544 (Tex. Crim. App. 2020). “An appellate court affords almost total 

deference to a habeas court’s factual findings when they are supported by the record, especially 

when those findings are based on credibility and demeanor.” Id. “This degree of deference also 

applies to any implied findings and conclusions supported by the record.” Id. “However, if the 

resolution of the ultimate question turns only on the application of legal standards, the appellate 

court reviews those determinations de novo.” Id. “The reviewing court will uphold the habeas 

court’s ruling if it is correct under any theory of applicable law.” Id. at 544–45.

Confinement Under Article 11.09

Trotti discharged his assault-bodily injury sentence prior to filing this habeas application. 

But he alleges that this conviction caused him to suffer collateral consequences sufficient to trigger 

the trial court’s jurisdiction under article 11.09. See Ex parte Harrington, 310 S.W.3d 452, 456–

58 (Tex. Crim. App. 2010). The State argues that because Trotti “failed to demonstrate that his 

current confinement. . . [and] loss of street and good time are collateral consequences of the 

conviction in this case rather than a result of his parole revocation,” we should dismiss the appeal 

for lack of jurisdiction. But applicants need not prove a right to relief to get through the postconviction jurisdictional door. See Ex parte Shay, 507 S.W.3d 731, 733 (Tex. Crim. App. 2016) 

(rejecting theory that an applicant not physically confined must “demonstrate that not only is he 

suffering a collateral consequence from his conviction, but that granting the relief sought would 

remove the fact of the collateral consequence or mitigate the length of the collateral consequence”). 

Here, the record reflects that the trial court had the parole paperwork before it at the time it ruled 

on Trotti’s habeas application. And in ruling on the merits of the application and entering findings 
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and conclusions, it impliedly found that Trotti had demonstrated sufficient collateral consequences 

to seek habeas relief. See Diamond, 613 S.W.3d at 544. We conclude that the trial court’s implied 

finding that it had jurisdiction to consider the merits of this application was supported by the 

record. See Ex parte Harrington, 310 S.W.3d at 457–58; Tatum v. State, 846 S.W.2d 324, 327 

(Tex. Crim. App. 1993) (per curiam); Collazo, 264 S.W.3d at 126. We therefore turn to the 

substance of Trotti’s arguments.

Validity of the Judgment

“Subject-matter jurisdiction depends not only on the grant of authority to the trial court in 

the Constitution and the statutes, but also on its being invoked for the particular case before the 

court by the State’s pleadings.” Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009).

District courts have jurisdiction over not only the felonies and misdemeanors alleged in an 

indictment, but also the lesser felonies and misdemeanors “included in the indictment.” Murray v. 

State, 302 S.W.3d 874, 877 (Tex. Crim. App. 2009).

Under the Court of Criminal Appeals’s opinion in Hall v. State, an offense is a lesserincluded offense of another offense if the indictment for the greater offense either: (1) alleges all

elements of the lesser-included offense; or (2) alleges facts from which all elements of the lesserincluded offense can be deduced. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). If 

the greater offense can be committed in more than one manner, the manner alleged establishes the 

suitable lesser-included offenses—“the relevant inquiry is not what the evidence may show but 

what the State is required to prove to establish the charged offense.” Rice v. State, 333 S.W.3d 

140, 145–46 (Tex. Crim. App. 2011) (internal quotation marks omitted). Hall’s construction of the 

definition of a lesser-included offense controls even in the plea bargain context. Murray, 302 

S.W.3d at 876, 881 (“the cognate-pleadings test adopted in Hall applies to all prosecutions, 

whether trial is had before judge or jury”). 
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Count I, from which the lesser offense of assault was derived, alleged that Trotti “did 

intentionally and knowingly cause the penetration of the MOUTH of the . . . complainant, by THE 

DEFENDANT’S SEXUAL ORGAN, said act having been committed without the consent of the 

complainant, in that THE DEFENDANT COMPELLED THE COMPLAINANT TO SUBMIT 

AND PARTICIPATE BY THE USE OF PHYSICAL FORCE AND VIOLENCE.” See TEX.

PENAL CODE ANN. § 22.011(a)(1)(B), (b)(1). A person commits an offense of assault-bodily injury 

if the person “intentionally, knowingly, or recklessly causes bodily injury to another[.]” Id.

§ 22.01(a)(1). “‘Bodily injury’ means ‘physical pain, illness, or any impairment of physical 

condition.’” Id. § 1.07(a)(8). Bodily injury is not an element of sexual assault or even aggravated 

sexual assault. See McKithan v. State, 324 S.W.3d 582, 588–90 (Tex. Crim. App. 2010). Because 

assault causing bodily injury requires an additional element not required for the offense of sexual 

assault, it is not a true lesser-included offense. Hall, 225 S.W.3d at 535; McKithan, 324 S.W.3d at 

590.

But this does not mean that Trotti’s judgment is void. The trial court had both subject matter 

and personal jurisdiction over Trotti by virtue of the felony indictment against him. The Court of 

Criminal Appeals’s opinion in Trejo v. State is instructive on this point. 280 S.W.3d at 260. There, 

the indictment alleged the offense of aggravated sexual assault and the “court’s charge authorized 

the jury to convict for that offense or for any of three lesser offenses: sexual assault, aggravated 

assault, or assault.” Id. The appellant did not object to the submission of the lesser offenses, and 

the jury found him guilty of aggravated assault. See id. On appeal, he argued that aggravated 

assault was not a lesser-included offense of the aggravated sexual assault that was alleged in the 

indictment, so the trial court lacked jurisdiction to convict him of that lesser offense. Id. The Court 

of Criminal Appeals disagreed, reasoning “[a]lthough the trial court may have erred in its charge 
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to the jury, it had jurisdiction to commit the error.” Id. at 261.1 For the same reason, we recognize 

that while the trial court may have lacked authority to allow the plea on an offense that was not 

included in the alleged offense, it had the jurisdiction to allow it. Id. at 260; see also Benavidez v. 

State, 323 S.W.3d 179, 180–82 (Tex. Crim. App. 2010) (“improper submission of the lesser-butnot-included offense was not jurisdictional, but merely trial error”).

We further conclude that, under the circumstances of this case, Trotti is estopped from 

complaining about that lack of authority. Cf. Murray, 302 S.W.3d at 876, 882–83 (appellant not 

estopped from raising complaint that misdemeanor offense he pled guilty to was not included 

within the charged offense because before judgment was rendered, he objected to proceeding 

further on the misdemeanor offense for that very reason). Here, Trotti accepted the benefit of the 

plea bargain—relief from prosecution for the higher-level offense. See Rhodes v. State, 240 

S.W.3d 882, 892 (Tex. Crim. App. 2007). Because “through his own conduct he helped procure 

and benefit from the illegality,” he cannot now complain about an error about which he failed to 

timely object and from which he benefited. Id.; Woodard v. State, 322 S.W.3d 648, 659 (Tex. 

Crim. App. 2010) (appellant barred from complaining that trial court erred in instructing jury on 

unindicted conspiracy offense where he “helped prepare the charge, including the instruction 

related to the unindicted charge of conspiracy to commit aggravated robbery”). Since Trotti’s 

“present claim is ‘inconsistent’ with his ‘prior conduct,’” he is estopped from raising it. Ruffins v. 

State, 666 S.W.3d 636, 642 (Tex. Crim. App. 2023). The trial court’s ruling that the judgment is 

not void—though based on an erroneous determination that the misdemeanor offense was included 

within the scope of the felony Trotti was charged with committing—is correct under Trejo, 280 

1 In Trejo, the Court of Criminal Appeals also wrote, “We also have held that a defendant may not benefit from a 

lesser-included-offense instruction and then attack his conviction of that lesser-included offense on the ground that it 

was barred by limitation. The doctrine of estoppel would prevent the party from presenting such a claim.” Id. at 260.
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S.W.3d at 260, and Rhodes, 240 S.W.3d at 892. And we are required to uphold the trial court’s 

ruling if it is correct under any theory of applicable law. Diamond, 613 S.W.3d at 544–45. For that 

reason, we overrule Trotti’s first issue on appeal. 

Validity of Plea

“A defendant has a Sixth Amendment right to effective assistance of counsel in guilty-plea 

proceedings.” Ex parte Harrington, 310 S.W.3d at 458. “[W]hen a person challenges the validity 

of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the 

voluntariness of the plea 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, he would not have pleaded guilty to the charged offense 

and would have insisted on going to trial.” Id. (internal quotation marks omitted). “When counsel’s 

representation falls below this standard, it renders any resulting guilty plea involuntary.” Id. at 

458–59.

In his application, Trotti claimed trial counsel: 

• failed to obtain a copy of surveillance video from a nearby VIA bus depot

he alleged existed;

• failed to impeach the complainant’s version of events when she testified;

• failed to uncover the complainant’s criminal history, which showed that she 

advertised as a paid escort beginning in 2006; 

• failed to interview potential defense witnesses Christopher Gonzales and 

James Woods;

• induced him to plead no contest by concealing from him that the 

complainant lied on the witness stand, convincing him that there was a 

reasonable likelihood that he would be convicted if he did not accept the 

plea offer, and telling him that if he pled no contest to the lesser offense, his 

parole in his prior offense would remain intact; and 

• lied to him by telling him that he could get life in prison if convicted of the 

sexual assault counts.
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The trial court ordered Trotti’s trial counsel to respond to the allegations. Counsel filed affidavits 

averring: 

• neither the San Antonio Police Department nor VIA acquired video from 

the bus depot; 

• counsel uncovered the complainant’s theft conviction which contained a

stipulation that she advertised as an escort to set up a robbery and used that

stipulation to obtain the mid-trial misdemeanor plea offer; 

• counsel interviewed Christopher Gonzales and James Woods, who knew 

the complainant worked as a prostitute, and counsel planned to present those

witnesses during the defense case-in-chief; 

• counsel did not induce Trotti to plead no contest and did not tell him that if 

he pled no contest to the lesser offense, his parole in his prior offense would 

remain intact but instead explained that parole was a separate legal matter; 

and 

• counsel expressed concern to Trotti that Texas Penal Code section 

12.42(c)(2) required a life sentence if he were convicted of sexual assault 

because of his prior aggravated sexual assault offense. 

The trial court found both defense counsel truthful and credible and incorporated their affidavits 

into its findings:

The court finds that Applicant’s attorneys did not force him to take the State’s plea 

offer. Nevertheless, given the evidence that had already been presented during the 

bench trial, given that Applicant’s acquittal of the sexual assault charges was not a 

sure-thing, and given the fact that Applicant was facing a minimum sentence of 25 

years/maximum of life, this court finds that whatever advice Applicant’s attorneys 

gave him that might have convinced him to take the plea offer would have been 

within the range of competence demanded of attorneys in criminal cases. 

Applicant’s attorneys had a reasonable “trial strategy.” But, regardless of what their 

“trial strategy” was, they struck a favorable deal for Applicant under these 

circumstances.

Trotti argues the trial court abused its discretion by crediting his attorneys’ assertions over 

his own. But we afford almost total deference to a trial court’s factual findings which are supported 

by the record, especially when those findings are based on credibility and demeanor. Diamond, 

613 S.W.3d at 544. In arguing prejudice, Trotti focuses on counsel’s alleged lack of investigation 
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and the failure to uncover the VIA surveillance video which, he argues, could show that the 

complainant entered Trotti’s car voluntarily, rather than involuntarily, as she testified. That, “in 

turn” could have led the factfinder to rationally acquit Trotti altogether. But the record reflects that 

neither the State nor the defense investigators could locate any such video. Further, as noted by 

the trial court, whether the complainant did or did not willingly enter Trotti’s vehicle “does not in 

any way dispute her claims of sexual assault.”

We agree with the trial court that Trotti failed to prove his ineffective assistance or 

involuntary plea claim. “The rule that a plea must be intelligently made to be valid does not require 

that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant 

factor entering into his decision.” Brady v. United States, 397 U.S. 742, 757 (1970). Counsel’s 

advice was within the range of competence demanded of attorneys in criminal cases. Ex parte 

Harrington, 310 S.W.3d at 459. Further, there is no reasonable probability that, but for any of his 

attorneys’ errors, Trotti would not have pled no contest to the misdemeanor charge and would have 

insisted on continuing trial and risking a life sentence. See id.

CONCLUSION

Because the record and applicable law support the trial court’s denial of habeas relief, we 

affirm the trial court’s order.

Beth Watkins, Justice

DO NOT PUBLISH