## NO. 12

- 14

- 00182

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

STEPHEN ALBRO, JR., APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 217TH

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEX AS

MEMORANDUM OPINION Stephen Albro, Jr. appeals his conviction for burglary of a habitation , for which he was sentenced to imprisonment for twenty years . In two issues, Appellant argues t hat the trial court abused its discretion in overruling his motion for new trial because he received ineffective
assistance of counsel

. We affirm.

B ACKGROUND Appellant was charged by indictment with burglary of a habitation and pleaded “guilty”
without an agreed punishment recommendation. After reviewing the pre sentence i nvestigation

r eport (PSI) and conducting a punishment hearing , the trial court sentenced Appellant to imprisonment for twenty years

. Appella nt filed a motion for new trial, in which he argued he
received ineffective assistance of counsel . The trial court conducted a hearing on Appellant’s
motion and considered testimony from Appellant’s trial counsel. Ultimately, Appellant’s motion
for new trial was overruled by operation of law. Thi s appeal followed

.

I NEFFECTIVE A SSISTANCE OF C OUNSEL In his first issue, Appellant argues that his trial counsel was ineffective because he (1) failed to prepare Appel lant for his sentencing hearing, (2) fail ed to review the PSI sufficiently2

with him , ( 3) led Appellant to mistakenly believe he had been offered community supervision
, (4) failed to make Appellant aware that an enhancement notice had been filed, which increased the potential range of punishment from that of a second degree felony t o that of a first degree felony, 1 (5) failed to call numerous witnesses at his punishment hearing, and (6) failed to keep Appellant sufficiently informed with regard to the plea process. In his second issue, Appellant
contends that the trial court erred in not gra nting his m otion for n ew t rial on this basis.
Standa rd of Review and Applicable Law The granting or denying of a motion for new trial lies within the sound discretion of the
trial court. State v. Gonzalez , 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). We reverse “only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id

. at 695 n.4. We may not substitute our judgment for that of the trial court, but rather must decide whether the trial court’s decision was arbitrary or
unreasonable. Id

. At a hearing on a motion for new trial, a trial court, as finder of fact, is free to believe or disbelieve the testimony of any witness, even if the testimony is uncontroverted. Bell v. Sta te , 256 S.W3d 465, 468 (Tex. App.

– Waco 2008, no pet.). Thus , we must defer to the trial court in assessing the witnesses’ credibility in a motion for new trial. Id

. , s ee also Camilo v. State , No.
06

- 08

- 00164

- CR, 2009 WL 348564, at *1 n.3 (Tex. App.

– Texa rkana Feb. 13, 2009, no pet.) (mem. op., not designated for publication). Because the trial judge is prohibited from commenting on the evidence in ruling on a motion for new trial, reviewing courts may impute implicit factual findings that support the tri al judge’s ultimate ruling in denying a motion for new trial when such findings are both reasonable and supported by the record. See Shamin v. State
, 443 S.W.3d 316 , 321 (Tex. App.

– Houston [14th Dist.] 2014, pet. ref’d).
Claims of ineffective assista nce of coun sel are evaluated under the two step analysis
articulated in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel’s representation fell below

an o bjective standard of reasonableness under prevailing professional norms. See Strickland
, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affi rmatively prove that they fell

1 Appellant argues that as a result of his trial counsel’s misinfor ming him, his waiver of jury t rial and

“ guilty ” plea w ere not made freely and voluntar ily.3

below the professional norm of reasonableness. See McFarland v. State , 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel’s representation , but will judge the claim based on the totality of the representation. See Strickland , 466 U.S. at 695, 104 S. Ct. at 2069. To satisfy the Strickland standard, the appellant also is required to show prejudice from the deficient performance of his attorn ey. See Hernandez v. State , 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel’s deficient performance, the result of the proceeding would have been different. See Strickland
, 466 U.S. at 694 , 104 S. Ct. at 2068. In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel’s ac tions and decisions were reasonably professional and were motivated by sound trial strategy. See id

. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id

. Appellant can not meet this burden if the record does not affirmatively support the
claim. See Menefield v. State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A record that specifically focuses on the conduct of trial counsel is necessary for a proper
evaluation of an ineffectiveness claim. See Kemp v. State , 892 S.W.2d 112, 115 (Tex. App.

– Houston [1st Dist.] 1994, pet. ref’d). Before being condemned as unprofessional and incompetent, defense counsel should be given an opportunity to explain his or her actions. See
Bone v. State , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim must usually be denied as speculative, and, further, such a claim cannot be built upon retrospective speculation. Id

. at 835. “Guilty” Plea Based on Misinform ation Appellant first contends that his trial counsel caused him to mistakenly believe that the prosecutor would offer community supervision if he waived his right to a jury trial and ple a d ed

“ guilty .” Appellant arg ues that, as a result, his trial counsel was ineffective because he did not

r equire the State to honor any offer of community supervision or inform the trial court that the
State had re tracted its offer . This, Appellant urges, caused his “guilty” plea to have been involuntarily made.4

In his affidavit 2 filed in support of his motion for new trial, Appellant acknowledges that
he was aware of the plea agreement ’s statement that his punishment would be imprisonment for ten years. But he argues he was “told ” that if he waived his right to a jury trial and testified against his codefendants, the prosecutor would recommend community supervision i n return for his cooperation. Appellant does not identify in his affidavit who made this statement to him

. B ut ass uming arguendo that Appellant intended to attribute the statement to his trial counsel, we note that counsel testified he made no such representation to Appellant. Appellant’s affidavit further states he “thought” he would be offered community supervisi on if he waived his right to a jury trial and ple a d ed “ guilty. ” However, Appellant’s trial counsel and the prosecuting attorney testified that no offer of community supervision was made

or would ever be made. A letter from Appellant to his trial counsel was introduced into evidence as well. In that letter, Appellant acknowledged that community supervision was not available to
him. Further more , at the plea proceeding, Appellant acknowledged to the trial court that he signed written admonishments and was pleading “ guilty ” of his own free will . He further acknowledged that there was no agreement concerning his punishment and that he understood
that the court could assess his punishment at imprisonment for as many as twenty years. There is no evidence of record that Appellant’s trial counsel persuaded Appellant to ple a d

“ guilty ” based on what he anticipated the trial court’s sentence would be. Instead, there is only Appellant’s vague affidavit testimony that he was “told” the prosecutor would offer or

re commend community supervision if he ple a d ed “ guilty. ”
In its evaluation of the evidence presented in conjunction with Appellant’s motion for new trial, the trial court was entitled to believe Appellant’s trial counsel’s and the prosecutor’s respective t estimon ies that no offer of community supervision was or would be made and that Appellant was aware of that fact

. See Bell , 256 S.W.3d at 468. Therefore, we conclude that Appellant has failed to demonstrate the State made an offer of community supervisio n or that his trial counsel caused him to believe any such offer existed.

2 Appellant was not present in court for the hearing on his motion for new trial. His attorney “waiv[ed the need for] his presence” at the hearing, and t he court conducted the hearing in his ab sence

.5

Misinform ation about E n hancement Appellant next contends that his trial counsel was ineffective because he failed to adequately convey to him that his prior felony conviction for murder and aggravated robbery 3 could be used against him to enhance the range of punishment he faced to that of a first degree felony. In his affidavit, Appellant correctly notes that he was admonished at the plea proceeding
that the range of punishment for the offense in this case (burglary of a habitation) was two to twenty years. However, he also states he was never told that his prior conviction could or would be used to enhance the punishment range to that of a first degree felony

. Appellant’s moth er corroborated his testimony. She testified that Appellant was not made aware that the range of punishment h e was facing had been increased by virtue of the enhancement notice filed by the
S tate. Yet Appellant’s trial counsel testified t hat he spent c onsiderable time with both Appellant and his mother explaining to them that the previous conviction would be used to enhance the range of punishment and that they understood the enhancement’s effect on the case. Moreover,

a t the punishment hearing, the tr ial court addressed the matter of the enhancement notice and
asked Appellant if he was aware of it and the effect it would have on the range of punishment. Appellant’s t rial counsel responded that he a nd Appellant were aware. There is no indication
from the record that Appellant disagreed with his trial counsel’s assessment

. There was ample evidence presented at the hearing on Appellant’s motion to permit the trial court reasonably to conclude that Appellant was aware of the enhancement and increased

r ange of punishment before proceeding with the sentencing hearing. Therefore, we conclude that Appellant has not shown his trial counsel failed to explain that his prior conviction could be used to increase the range of punishment in this case. Inadequate Preparation for Sentencing Hearing Appellant next argues that his trial counsel was ineffective by not adequately reviewing the PSI with him or preparing him for the punishment hearing. In his affidavit, Appellant states
that his trial counsel spent only three to four minutes with him prior to the sentencing hearing

3 When he was a juvenile, Appellant was found to have engaged in delinquent conduct involving murder and aggravated robbery and was committed to the Texas Youth Commission (TYC). He was later transferred to the to the P ardons and P arole D ivision o f the Texas Department of Criminal Justice and placed on parole for the remaining twenty

- seven years of his thirty year determinate sentence. For enhancement purposes here, a n adjudication by a juvenile court that a child engaged in delinquent conduct con stituting a felony offense for which the child is committed to the Texas Juvenile Justice Department under Texas Family Code, Section 54.04 (d)(2) , is a final felony conviction. See T EX

. P ENAL C ODE A NN

. 12.42(f) (West Supp. 2014)

.6

and spent only thirty to forty

- five seconds of that time reviewing the PSI with him. As a result, according to Appellant, he did not have a complete understanding of the contents of the PSI a nd was unprepared for the hearing

. We first note that Appellant’s argument focuses on his trial counsel’s alleged failure to prepare him for sentencing. He does not contend that the information contained in the PSI was inaccurate or misleading. At the hearing on Appellant’s motion for new trial, his t rial counsel
testified that he spent considerably more time reviewing the PSI with Appellant as well as the
letters of support and other documents he submitted for inclusion in the PSI. His t rial counsel
further testified that while he did not spend an inordinate amount of time talking to Appellant immediately prior to the sentencing hearing, he previously spent considerable time discussing the
matter with Appellant and his mother. The trial court was ent itled to weigh the testimony before it on this point and to determine that Appellant’s trial counsel sufficiently reviewed the PSI with Appellant and adequately prepared him for the sentencing hearing. Thus, we conclude that Appellant has not shown his tr ial counsel failed to adequately review the PSI with him or prepare him for the punishment hearing.
Failure to Call Witnesses Appellant further argues that his trial counsel was ineffective by not calling several witnesses who were present in the courtro om to testify at his sentencing hearing. To obtain relief on an ineffective assistance of counsel claim based on an uncalled witness, the appellant must show that the witness was available to testify and that his testimony would have been of some
benefit to the defense. See Ex parte White , 160 S.W.3d 46, 52 (Tex. Crim. App. 2004)

. Here, Appellant failed to specify what the subject matter of these witnesses’ testimonies would have been and did not call any of them to testify at the hearing on his motion f or new trial. Therefore,
there is no evidence in the record that trial counsel was ineffective for failing to call these
witnesses. Failure to Keep Appellant Informed Regarding Plea Process Lastly
, Appellant contends that his trial counsel was ineffective by not keeping him adequately informed regarding the plea process. As a result, Appellant argues that he did not
make an informed decision regarding whether to waive his right to a jury trial, to accept the State’s plea bargain offer, and to plead “ guilt y .” In his affidavit, Appellant states that his trial counsel never came to the jail to meet with him, did not return his phone calls, and failed to send7

him written correspondence regarding his case. Indeed, Appellant’s trial counsel testified that he
d id not visit Appellant in jail and did not routinely correspond with him . But he denied that his communications with Appellant were inadequate

. Rather, according to Appellant’s trial counsel,
he took numerous telephone calls from Appellant . Further, he testified that he had several conferences with Appellant’s mother that last ed up to two hours . At those conferences, according to Appellant’s trial counsel , he discuss ed the case with Appellant’s mother in great
detail. He further testified that he spoke with Appellant at length during previous court

appearances and when the trial court allowed Appellant to be brought to the courthouse from jail
for consultation

. Once a gain, the trial court was entitled to believe Appellant’s trial counsel’s testimony that Appellant was properly and adequately informed about his case and could conclude that Appellant made decisions concerning his “guilty” plea freely and voluntarily . Therefore, we conclude that Appellant failed to demonstrate that his counsel did not k eep him adequately informed regarding the plea process

. Harm Appellant failed to meet his burden of proof under the first prong of the Strickland test. But even had he met this burden, the outcome would not change because he also has failed to
show th at, but for counsel’s alleged unprofessional errors, the result of the proceeding would
have been different. See Strickland , 466 U.S. at 694, 104 S. Ct. at 2068 ; Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The record indicates that Appellan t was admonished concerning an incorrect range of punishment for the offense charged in light of the enhancement
notice. But the sentence imposed was within the range of punishment stated in the
admonishments. Moreover, the record reflects that Appellant had engaged in criminal activity a few years after being placed on parole

. Appellant’s t rial counsel testified that in his presentation of Appellant’s case , he highlighted accomplishments Appellant made during his period of
commitment a long with a plan f or Appellant to relocate to Houston to avoid continued exposure
to bad influences such as those that led to the instant charge s

. He further testified that he spent considerable time working with Appellant’s mother on how to best present this mitigation
de fense, which he described as a “good plan

. ” However, he conceded that as worthy as this approach may have been, he explained to Appellant that obstacles to that plan

–– the more than twenty remaining years of his parole

–– still loomed large.8

Appellant ackno wledges his burden of proof , but addresses the second prong of the
Strickland test with only conclusory statements and a general assertion that the sentence imposed would have been different had trial counsel spent more time with him or done more at
the he aring. These statements do not satisfy the second prong of Strickland

. Therefore, b ecause Appellant failed to demonstrate that the results of the proceeding would have been different, he has failed to meet the second prong of the Strickland test. Summa tion Appellant failed to meet his burden of proof on either element under the Strickland test. As a result, we hold that (1) Appellant failed to demonstrate that he received ineffective assistance of counsel and (2) the trial court did not abuse its disc retion in overruling Appellant’s motion for new trial. Appellant’s first and second issues are overruled.

D ISPOSITION Having overruled Appellant’s first and second issues, w e affirm the trial court’s judgment.



### G REG 

### N EELEY Justice
Opinion delivered May 13, 2015

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 13 , 2015

NO. 12

- 14

- 00182

- CR

STEPHEN ALBRO, JR., Appellant V. THE ST ATE OF TEXAS, Appellee

Appeal from the 217th District Court of Angelina County, Texas (Tr.Ct.No. 2013

- 0614) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that t here was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance.

Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.