Opinion issued August 2 7 , 2015

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 1 4
- 00 811
- CR

——————————— EX PARTE JESSICA NICOLE MAUCK , Appellant

On Appeal from the 174th District Court

Harris County, Texas Trial Court Ca se No. 1 34 21 93
- A

MEMORANDUM OPINION Appellant, Jessica Nicole Mauck , challenges the trial court’s order denying
h er application for a writ of habeas corpus. 1 In her sole issue, a ppellant contends

1 See T EX

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. a rt. 11.072 , § 8 (Vernon 2015) ( providing for appeal in case in which applicant seeks relief from order or judgment of conviction ordering community supervision). A person who is subject to “collateral consequences” resulting from a conviction is considered confined. See2

that the trial court erred in denying h er requested relief , which she sought on the ground that h er trial counsel rendered ineffective assistance by not conduct ing a meaningful investigation before advising appellant to plead guilty and n ot advis ing
her of available options and the consequences of her plea

. We affirm the order of the trial court. Background
O n March 29, 20 12 , a Nassau Bay Police Department (“NBPD”) officer stopped a car driven by Marshall McCormick for his fail ure to stop at a stop sign.
When a second NBPD officer arrived at the scene , he asked appellant, who was a passenger in the car, whether she had anything in her possession that he should
know about

. She then reached into her purse and removed a bagg y containing “ a large amount of a green leafy substance .” After the officer placed appellant in
custod y, a nother NBP D o fficer saw , on the passenger

- side floorboard of the car , a small bag containing a white powder substance, which weighed 0.6 grams and
fi eld

- teste d posit ive for cocaine.
A fter her arrest and release on bond, appellant, o n March 30, 2012, retained trial counsel, Kristi Walsdorf , to represent her in court . A nd, o n April 2, 2012, appellant , with an agreed punishment recommendation from the State, pleaded

State v. Collazo , 264 S.W.3d 121, 126

– 27 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref’d).3

guilty to the state

-

jail

- felony offense of possession of a controlled substance, namely , cocaine , weighing less than one gram

. 2 The trial court deferred a finding of guilt and placed appellant on community supervision for a period of two years.
A fter app ellant successfully completed her term of community supervision , the trial court discharged her on April 7, 2014

. In March 2014 , appellant filed h er verified application for a writ of habeas
corpus , asserting that she had entered h er guilty plea involuntar ily and unknowing ly. She argued that h er trial counsel rendered ineffective assistance
because counsel did not (1) conduct an investigation before advising appellant to

enter the guilty plea, (2) admonish or advise her of the consequences of her plea, or (3) adequately advise her of available courses of action, including her right to request a resetting of the case to allow further investigation, request a pretrial diversion, or present evidence to a grand jury

. Appellant asserted that her trial
counsel a dvised her to plead guilty without obtaining a lab report confirm ing that the white powder substance seized from McCormick’s car was cocaine; obtaining
an incident or offense report describ ing the circumstances of the traffic stop and appellant’s arrest; and interviewing any witnesses, including McCormick.

2 See T EX

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. § § 481.102(3)(D), 481.115(a), (b) ( Vernon 2010 )

.4

Appellant explained that had she been apprised of alternatives to her plea or its consequences, she would not have pleaded guilty.
At a hea ring on appellant’s application , t he trial court , without objection,
admitted into evidence appellant’s application, supplemental application, and supporting affidavits. In her affidavit, appellant testified : On Monday, April 2, 201 2 , I appeared in court with [trial counsel] who advised me that I needed to plead guilty to get probation or I would be sentenced to 2 years in a state jail prison. I told [trial counsel] that the cocaine I was being charged with was not mine and that I did not want a felony conviction on my record

. [Trial counsel] advised me that the only way to avoid jail time was to take probation, which required me to plead guilty. [Trial counsel] told me that if I did not plead guilty I would spend 2 years in a sta te jail. Based on [trial counsel’s] advice , and because I did not think I had any other choice , I pleaded guilty on my first court setting to 2 years deferred adjudication probation. [Trial counsel] never mentioned pre

- trial diversion or informed me abou t the grand jury process. I would not have plead guilty if I had been advised of my right to investigate this case, request pretrial diversion or submit a packet to the grand jury. [Trial counsel] never talked to me about my criminal record, and what wou ld happen if I plead guilty and was placed on a deferred adjudication.

. . . I am no w unable to obtain employment because of the felony record that I have received. I started working for Chevron as a data entry clerk at 19. I worked my way up to a docume nt con t roller for oil and gas contractors and held this position until the project I was working on got recycled in 2013

. Due to my current record, I have not been able to apply for a job within the oil and gas industry

. The policy of oil and gas compani es, as well as oil and gas contractors [,] is to not hire applicants with a felony record. I have currently been unemployed for over a year and have to depend on my parents to support my son and I, as I am unable to obtain employment with a felony record.5

In her affidavit, a ppellant’s mother, Lisa Yarborough , testified that she and
her ex

- husband were at court with appellant on April 2, 2012. A ppellant’s trial
counsel tol d them that the State “ was willing to drop the marijuana charge and only charge for th e cocaine ” ; if appellant went to trial , “ the State could bring back up the marijuana charge ” ; and the State “ had offered [appellant] a 3

- year deferred adjudication deal. ” Yarborough explained that a ppellant thought that her only two options were either de ferred adjudication or jail

. T rial counsel did not explain to appellant what deferred adjudication involved or present to her the options of having her case present ed to a g rand j ury, requesting a pretrial diversion , or filing a

m otion to s uppress evidence

. And Yarborough believe d that appellant would not have pleaded guilty had she known th at other options were available to her

. B ecause appellant was “[s]cared to death with the threat of jail , ” she took the deal that day. Appellant attached to her supplemental application the affidavits of three Harris County criminal defense attorneys. The y each opined that a reasonably competent attorney in Harris County would not resolv e a case for a client , who had no criminal background , by entering a plea on an initial setting without conducting an investigation , not review ing an offense report or lab report before advising the client to plead guilty , not advis ing the client about alternatives to entering the plea , and not advis ing the client of the di rect consequences of deferred adjudication

.6

Appellant’s trial counsel , who was the only witness called at the habeas hearing , testified that she met with appellant and a family member on Friday, March 30, 2012

. She explained that she would not have done any investigation on that Friday before the first court date on Monday, April 2, 2012 , but, “in the usual course of business,” she would have performed a background check of appellant to obtain her criminal history

. However , she did not recall whether she did so in this

case , noting that she “ m ight have ” done a criminal background check o n McCormick

. Without objection, t he trial court admitted into evidence trial counsel’s handwritten notes from her March 30, 2012 meeting with appellant

. T rial c ounsel fur ther testified that she knew that appellant , a t the time of her plea , did not have a criminal history

. A t the April 2, 2012 court appearance , trial counsel talked with the prosecutor for about twenty minutes and reviewed the
State’s file, which did not include a lab report or offense report

. 3 The State’s file
did include a “probable cause information,” reflect ing that appellant did not have a

3 Although t he trial court admitted into evidence a NBPD “Incident/Investigation Report , ” t he record reflects that this report was not in the State’s file at the time that appellant entered her plea. The r eport includes a “Reporting Officer Narrative,” which reveals that an of ficer at the scene saw “ a torn piece of bag on the passenger floor board ” and “ upon . . . picking up the paper he found a small baggy which contained a white powder subst ance with a we ight of .6 grams.” The report also includes a “Case Supplemental Report,” which reveals that appellant stated that the seized marijuana belonged to McCormick and “she didn’t know where the powder substance had come from.” It also reveals that McCormick s tated that he did not know anything about the marijuana or other contraband seized from his car.7

criminal history , and a one
- paragraph summary of appellant’s arrest , with a
handwritten not e indicating that the car ’s driver had run a stop sign

. T rial counsel explained that she was able to assess the case without a lab report or offense report
b ecause of what appellant had already told her , including that she had been “accused of [possessing] drugs, a couple of them”; had “confessed to the police when she was initially stopped” ; “had confessed to the officer that she knew about
the cocaine ” ; “ was in possession of the cocaine ” ; and “ had knowledge of the cocaine” ; and “wanted to get the case done and over with.”
The State initially offered appellant deferred adjudication with a three

- year
term of community supervision

. T rial counsel told appellant that the State’s file
did not include a lab or offense report , and she advised appellant to reset the case
and leave the State’s offer open so that trial counsel “would have had time to explore any other options that were available, specifically getting the lab report.” She noted that, i n the normal course of her representation, she would have explained to appellant th e possib ility that the lab results could come back

“ negative

. ”
On cross

- examination , w hen appellant’s habeas counsel asked trial counsel
about her advice to appellant about potential defensive issues, trial counsel
answered : My advice would have be e n to reset the case and wait and see what happens. . . .8

Had it been my decision, I would have reset the case. [Appellant] was adamant that she was not willing to reset the case. She was not willing to wait. She wanted it done and over with. When she told me that, I went back to the D.A. and negotiated back down a year. So, I was able to get two years for her. Then I would have gone through a litany of why I do not like putting people on deferred or probation, and I would have tried every means to get her to reset the case and to give me more time. It was her choice and her decision to go forward.
When asked what options she presented to appellant, trial counsel answered: She could have reset her case, we coul d have gotten all of the State ’ s evidence, and we could have explored going to trial. I could have tried to negotiate a better plea deal for her. We could have tried to do pretrial diversion. We could have

— in certain cases, I ’ m able to negotiate things where I ’ m even able to get dismissals. I would have explained all of her options to her.
T rial counsel explained, however, that she did not think that appellant was “an ideal candidate” for pretrial diversion because it was evident that , based on her

con versation with appellant, “ she had a drug problem. ” And trial c ounsel’s notes of their meeting reflect that appellant was “[a]ddicted to scripts

. ” In regard to the State’s plea

- bargain offer, trial counsel testified:
I would have told [appellant] that the offer that the State was making her was a guarantee, that if she took the offer, her case would be done and over with and she would be on probation, but she would have to be better than gold while she was on probation in order not to violate it. Then I would have gone over all of the reasons I do not recommend anybody go on probation. It ’ s quite a long litany. I do not like putting people on probation, so I will go on and on about all of the dangers about being on probation. And then I would h ave gone over the fact that I would have preferred to have more time and I would have liked to reset the case so we could have explore the cause more. There were other things that I could have done for her. I told her that and she chose to not go forward and do those.9

Moreover, t rial counsel noted that she discussed deferred adjudication extensively w ith appellant and explained how it “would have remained with her and all of its impacts. ” She would have told any client, and would have explained

to appellant, that employers “ are going to see ” a deferred adjudication on the
record

. “ That initial arrest and that paperwork is always going to be there. ” But,
trial counsel would also have explained that “ there would be no conviction so long
as she compl eted ” deferred adjudication

. She woul d have told appellant that she
would have to admit on most job applications to having a felony offense on her
record ; “it would follow [ her ] for the re mainder of [ her ] life, and that if it was actually on [her] record that it would be there forever.” When asked whether she
had told appellant that she would not be able to have the felony offense

“ completely removed ” from her record , trial counsel answered that she “woul d have told [appellant] that there are some agencies, even though you are able to get these sealed, they are always able to look into your criminal record and see that there even though there’s no adjudication.” Trial c ounsel would also have
informed appe llant that the fact that she had been placed on community supervision would be considered if she ever were to have a child

- custody issue and there was a mandatory waiting time to file a petition for an order of nondisclosure

.10

However, trial counsel did no t know if she gave appellant a specific time period regarding any such petition

. 4 Finally, trial counsel testified that appellant’s “best choice , ” based on the
information that she had obtained from appellant and the police report, was deferred adjudication because appellant wanted the case “ over with. ” “Had she wanted to do something else, then that wouldn’t have been the best decision, but at that point in time, she simply wanted to get the c ase done and over with. So, it was her best choice.” A ppellant made her decision based on the information that trial
counsel provided to her , and she chose to enter her plea against counsel’s
recommendation. Trial counsel wanted “more time ” and generall y “ prefer [red her ] clients to go to trial. ” At the end of her testimony, t he State offered , and the trial
court admitted into evidence , with no objection , trial counsel’s affidavit.
The trial court denied appellant’s requested habeas relief and issued findings
of fact and conclusions of law

. T he trial court found , based on trial counsel’s “credible testimony , ” in pertinent part , as follows : 16.

. . . [ T rial counsel ] , after becoming aware of the State ’ s offer, met with [appellant] and gave her the following options: 1) accept the State ’ s offer; 2) negotiate with the State for a better offer; or 3) reset the case so that an investigation could be completed. [Trial counsel] explained all of the options to [appellant] and

4 A person whose adjudication for a felony offense is deferred may, upon her discharge and the dismissal of the case, petition for an order of nondisclosure to limit disclosure of the public criminal history record information related to the offense

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. § 411.081(d) (Vernon Supp. 2014).11

recommended that [she] allow [trial counsel] to reset the case for [appellant]

. [Trial counsel] explained to [appellant] that she wanted to reset the case so that she could review the offense report and laboratory report, speak with McCormick, and review case law regarding the stop an d search

. . . . 17.

. . . [ T rial counsel ] informed [appellant] that the State ’ s file did not include an offense report and therefore [trial counsel] had not had an opportunity to review it

. . . . 18.

. . . [ T rial counsel ] also informed [ app ellant] that the State ’ s file did not include a laboratory report and therefore [trial counsel] had not had an opportunity to review the report

. . . . 19.

. . . [A] fter a consideration of her options, [appellant] requested that [trial counsel] get her the best possible deal from the State and plead the case on that first setting so that the case would be over
. . . . 21.

. . . [ T rial counsel ] informed [appellant] of the new two (2) year offer but again encouraged [appellant] to let her reset the case so that [t rial counsel] could do a thorough investigation. However, [appellant] refused to reset the case and insisted on pleading guilty and accepting the State ’ s offer of two (2) years Deferred Adjudication on the first setting

. . . . 22.

. . . [ A ppellant’s] to p priority in this case was to resolve the case as quickly as possible

. . . . The trial court further found Yarborough’s affidavit testimony “to not be credible or persuasive

. ” A nd it found the defense attorneys’ affidavit testimony “to be unpersuasive due to their lack of knowledge of the confidential communications that occurred between [appellant] and [trial counsel], as well as being unfamiliar with the specific facts of the primary case.”12

Based on its fact findings, t he trial co urt concluded that appellant failed to
establish that her trial counsel’s “ conduct fell below an objective standard of
reasonableness and that, but for t rial counsel’s alleged deficient conduct, there is a reasonable probability that the result of the proc eeding would have been different. ”
Standard of Review An applicant for a writ of habeas corpus must prove h er claims by a preponderance of the evidence. Ex parte Richardson , 7 0 S.W.3d 8 65 , 8 70 (Tex. Crim. App. 200 2 )

. We view the facts in the light most favorable to the trial court’s ruling and uphold that ruling absent an abuse of discretion. See Ex parte Wheeler , 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Murillo , 389 S.W

. 3d 922, 926 (Tex. App.

— Houston [14th Dist.] 2013, no pet. ). We note that t he trial court is the sole finder of fact in a habeas proceeding, and we afford almost total deference to the court’s determinations of historical fact that are supported by the
record. Ex pare Garcia , 353 S.W.3 d 785, 787

– 88 (Tex. Crim. App. 2011). We afford the same deference to the trial court’s rulings on “applications of law to fact questions,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Ex parte Peterso n , 117 S.W.3d 804, 81 9 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007)

. However , if the resolution of those ultimate questions turns on13

an application of legal standards absent any credibility is sue, we review the
determination de novo. Id

.

Ineffective Assistance of Counsel In her sole issue, appellant argues that the trial court erred in denying her
habeas relief because , based on her trial counsel’s ineffective assistance, she entered her plea unknowingly and involuntarily. To be valid, a plea must be entered voluntarily, knowingly, and intelligently. T EX
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. art. 26.13(b) (Vernon Supp. 2014); Fuller v. State , 253 S.W.3d 220, 229 (Tex. Crim. App. 2008). A plea is not entered voluntarily and knowingly if made as the
result of ineffective assistance of counsel. Ulloa v. State , 370 S.W.3d 766, 771 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref’d). To pr ove a claim of ineffective assistance of counsel, appellant must show that (1) h er trial counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the r esult of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687

– 88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a probability sufficient t o undermine confidence in the
outcome.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of the representation to determine the14

effectiveness of counsel, indulging a strong presumption that coun sel’s performance falls within the wide range of reasonable professional assistance or trial strategy. See Robertson v. State , 187 S.W.3d 475, 482

– 83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs by a preponderance of
the evidence. Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An appellant’s failure to satisfy one prong of the Stri ckland test negates a court’s need to consider the other prong.” Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
In regard to pleas of guilty , the focus of our prejudice inquiry is “on whether counsel’s constitutionally ineffective performa nce affected the outcome of the plea process.” Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). Appellant
must show that (1) her trial counsel ’ s advice to plead guilty was not within the wide range of competence required of a criminal defen se attorney and (2) there is a reasonable probability that, but for counsel ’ s errors, she would have pleaded “not guilty” and insisted on a trial. Id. ; Lopez , 428 S.W.3d at 278 (citing Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)). Appellant asserts that her trial counsel advised her to plead guilty without conducting a reasonable investigation, i.e. , without obtaining and reviewing the lab
and offense report s and interviewing witnesses, including McCormick

. Thus, trial
counsel fail ed to advance any “viable defense available to [appellant].” Appellant15

further asserts that her trial counsel failed to a dvise her of her available options , such as obtaining pretrial diversion or present ing evidence to a grand jury , and the
direct consequences of deferr ing adjudication of her guilt , such as “informing her that the conviction could not be completely expunged and that certain public entities would still be able to see the felony conviction on her record

. ” Appellant

notes that had cou nsel advised her of her right to investigate the case, request pretrial diversion, or submit evidence to a grand jury , she would not have pleaded guilty.
Trial c ounsel ha s a duty to provide advice to h er client about what plea to

enter , and that advice sho uld be informed by an adequate investigation of the facts
of the case or based on a reasonable decision that an investigation is unnecessary. Ex parte Harrington , 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) (citing Ex parte Reedy , 282 S.W.3d 492, 500 (Tex. Crim. App. 2009); Goodspeed v. State , 187 S.W.3d 390, 392

– 93 (Tex. Crim. App. 2005)); see Strickland , 466 U.S. at 691,
104 S. Ct. at 2066 ) (t rial counsel must “make reasonable investigation s or
. . . make a reasonable decision t hat makes particular investigations unnecessary” ). Thus, c ounsel ha s an obligation to conduct a legal and factual investigation and
seek out and interview witnesses. See Ex parte Welborn , 785 S.W.2d 391, 394 (Tex. Crim. App. 1990). However, a “claim for ineffective assistance based on
trial counsel ’ s general failure to investigate the facts of the case fails absent a16

showing of what the investigation would have revealed that reasonably could have changed the result of the case.” Stokes v. State , 298 S.W. 3d 428, 432 (Tex. App.

— Houston [14th Dist.] 2009, pet. ref ’ d) (citing Cooks v. State , 240 S.W.3d 906, 912 (Tex. Crim. App. 2007)).
T rial counsel also ha s a duty to inform her client about the direct and punitive consequences of her guilty plea. See Arreola v. State, 207 S.W.3d 387, 392 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). However, a defend an t’s claim
that s he was “ misinformed by counsel, standing alone, is not enough for us to hold [ h er] plea was involuntary.” Fimberg v. State , 922 S.W.2d 205, 208 (Tex. App.

— Houston [1st Dist.] 1996, pet. ref’d). Here, the evidence supports the trial court’s findings and conclusions that appellant’s trial counsel advise d her about her options and the consequences of
deferr ing adjudication of her guilt

. Tr ial c ounsel’s testimony reflect s that she met with appellant and discussed the facts of her arrest

. O n April 2, 2012, the day of
the first court setting, trial counsel reviewed the State’s file , discussed the case
with the State , and told app ellant that the State’s file did not include a lab or an offense report

. Trial counsel explained to appellant her opti ons, including accepting the State’s offer of deferr ing adjudication of her guilt , negotiating for a better offer, or resetting the case. And c ounse l actually recommend ed to appellant that they request at least one resetting of the case so that counsel, at the least, could17

review the lab and offense report s , 5 and interview McCormick

. Counsel further explained that appellant wanted to plead guilty on the first setting so that the case
would be over

. Based on appellant’s request , trial counsel negotiated with the
State for a n offer of deferr ing adjudication of her guilt and placing her on community supervision for a period of two years
. Trial coun sel informed appellant
of this offer and urged appellant to let her reset the case so she could investigate.
A lthough a ppellant testi fied that she did not want a felony offense on her record , t rial c ounsel advised her that , by deferring adjudication of her guilt and accepting community supervision, the offense “ would have remained with her and all of its impacts

. ” Trial counsel also told appellant about the possibility of obtaining pretrial diversion. In trying a case, a criminal

- defense lawyer contr ols the progress of the case except for three decisions reserved to the client: (1) how to plead to the charges against her, (2) whether to be tried by a jury or the court, and (3) whether to testify
on her own behalf. See B urnett v. State , 642 S.W.2d 765 , 768 n.8 (Tex. Crim.

5 The offense report, attached to appellant’s application and admitted into evidence, states that the off

icers found the white powder substance on the passenger side of the floorboard of McCormick’s car and appellant told the officers that the marijuana belonged to McCormick, but “she didn’t know where the powder substance had come from.” The report further states that McCormick told the officers that he had no knowledge of the marijuana or “other contraband that was found.” The report also indicates that an officer saw “a torn piece of bag on the passenger floor board” and, after picking up the paper, found a small baggy with a white powder substance.18

App. 1982). Thus, the decision to plead guilty is the personal decision of the
accused. See Moore v. State , 4 S.W.3d 269, 276 (Tex. App.

— Houston [14th Dist.] 1999, no pet.). We conclude that t he record supports the trial court’s finding that appellant “insisted on pleading guilty” and accepted the State’s offer of deferr ing adjudication of her guilt with a two

- year term of community supervision

. T he
record also support s the trial court findings that, although trial counsel advise d appellant to “reset the case ” so she “could do a thorough investigation,” appellant
“insisted on plead ing guilty and accepting the State’s offer.” Considering the evidence in the light most favorable to the trial court ’s ruling and deferring to the trial court’s findings of fact and conclusions of law supported by the record , we conclude that appellant has not met the first prong of
Strickland and the trial court did not err in den ying appellant’s requested relief

. We overrule appellant’s sole issue.19 Conclusion
W e affirm the order of the trial court denying appellant habeas relief

.

Terry Jennings Justice Panel consists of Justices Jennings, Bland , and Brown

. Do not publish. T EX
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