Affirmed and Majority and Dissenting Opinions filed June 6, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00259-CR

ROBERT RAY MOORE, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 184th District Court 

Harris County, Texas 

Trial Court Cause No. 1489433 

O P I N I O N

In this ineffective-assistance-of-counsel appeal following the denial of a 

motion for new trial, appellant Robert Ray Moore asserts that his trial counsel 

rendered ineffective assistance by (1) failing to investigate appellant’s intellectual 

capacity, (2) not pursuing a competency examination, (3) failing to communicate 

with appellant about the “guilty” plea in a way appellant could understand and 

giving misleading advice about appellant’s chances of probation, (4) failing to put 

on mitigating evidence at the punishment hearing, and (5) failing to inform, advise, 
2

and prepare appellant with respect to his testimony at the punishment hearing. We 

affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

 Appellant was charged with assaulting his common-law wife, the 

complainant, by impeding her breathing. A criminal proceeding ensued, 

culminating in appellant’s “guilty” plea and an eight-year prison sentence. 

Plea and Sentencing Hearing 

 Appellant waived his right to a jury trial and pleaded “guilty” without a plea 

bargain or recommended sentence from the State. Five months later, after a 

presentence investigation (“PSI”) report, the trial court held a punishment hearing 

at which appellant’s counsel urged the court to order probation so that appellant 

could seek therapy. The complainant and other supporters endorsed the request. 

The State advocated for prison time, relying on appellant’s past assaults of the 

complainant and evidence that appellant violated bond conditions first revealed 

during the complainant’s testimony at the punishment hearing. 

 The trial court admitted without objection the PSI report offered by the State 

and three character-reference letters offered by appellant. The State called the 

complainant, who testified as follows: 

Q. [C]an you tell me what -- tell the Judge what you told me about 

why you came here today? What do you think should happen in this 

case?

A. I came here today to testify for [appellant] just to let you-all know 

that I don’t think he deserves to go to jail, any jail time. Because I 

have been knowing [appellant] since I was a teenager, and he -- I 

believe that he just needs some guidance, some help. He is not a bad 

person. He takes -- he takes care of all five of my children. I’m 

currently unemployed right now, so that leaves him the responsibility 

financially to take care of the kids, and I’m depending on him. I have 
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been depending on him to take care of them. He is a very good dad. 

He helps out with the kids a lot, and I just believe that he needs a little 

guidance. Because he is not a bad person at all. Robert is not a bad 

person. He is a very -- he is a very good guy.

During her testimony, the complainant revealed that she recently had resumed 

regular contact with appellant and that they were “on the same page with the coparenting” of their five children. In testifying, she acknowledged appellant’s past 

bad conduct but stated that she had noticed that appellant’s behavior and habits 

have changed dramatically, that “he is growing up.” 

 The PSI report contained information about appellant’s troubled social 

history, indicating that despite a good relationship with both of his parents, 

growing up he often was unhappy because he was in trouble frequently. Corporal 

punishment was the usual form of disipline in his household. The PSI report states 

that his parents had abused alcohol and had been on welfare, that he had trouble 

with schoolwork, “was assigned to special education classes all through school,” 

and that he wished his parents had pushed him more in school. The report 

indicates that appellant had sporadic employment and problems finding a stable job 

because he is illiterate. The report also contains information about appellant’s 

criminal history, including the following: 

On January 26, 2011, [appellant] attempted to gain entry to the 

complainant’s apartment by kicking in her front door. When his 

attempts were unsuccessful he attempted to gain entry through a 

locked window.

On February 20, 2011, [appellant], while a passenger in an

automobile, pointed a gun at Houston Police officers as they drove 

past him. [Appellant] was arrested and pled guilty to a lesser offense.

On July 24, 2012, [appellant] was convicted of family violence 

assault.

On November 23, 2012, [appellant] was convicted of assaulting the 

complainant.
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On May 17, 2013, [appellant] was in a vehicle with the complainant, 

who was pregnant, and one of her children. They got into an argument 

and [appellant] began to drive erratically and dangerously. The 

[appellant] stopped the car, dragged the complainant out of the car 

onto the ground where he assaulted her.

On November 24, 2014, [appellant] called the complainant multiple 

times before showing up at her grandmother’s house and banging on 

her door. [Appellant] left, but not before he turned off the power to 

her grandmother’s house. [Appellant] then called and threatened to 

kill the complainant if she called the police. During his call, 

[appellant] told the complainant she and her children were going to 

“sweat tonight.”

On March 31, 2015, [appellant] used [the complainant’s] car and took 

her to work. When he arrived to pick her up, he was aggressive and 

angry. [Appellant] then pushed the complainant to the ground, cursed 

at her and threatened to get a gun and shoot her brother.

On April 4, 2015, [appellant’s] sister reported she feared for her safety 

because she was afraid [appellant] was going to turn off her breaker 

box and set her house on fire.

 The charged offense at issue in this appeal occurred on November 15, 2015. 

Among eight instances of criminal conduct described in the PSI report, the State 

asked the complainant about only appellant’s two prior assault convictions, for 

which she was the complainant. In addition to discussing these episodes the 

complainant also testified about the circumstances of the assault at issue. 

According to the complainant, shortly before the assault, appellant’s father died, 

and appellant had been drinking heavily as a result. She stated that appellant had 

“blacked out,” and that it appeared to her that he did not know what he was doing 

until the incident was over. She testified that appellant started crying and left with 

their son, who had witnessed the assault. 

 After the State rested, appellant called his longtime friend Dedrick Nash, 

who testified that he had spent significant time around appellant and appellant’s 

children in the six or seven months leading up to trial and noted appellant’s 
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involvement in positive activities. 

 Appellant testified about his mental health and his desire to seek anger 

management treatment. At the close of the hearing, the trial court assessed 

punishment at eight years’ confinement. Speaking to the complainant, the judge 

simply stated, “I really – I’m concerned ma’am, that he is going to really hurt 

you.” 

Motion for New Trial 

 Appellant retained new counsel and moved for a new trial, arguing his 

“guilty” plea was involuntary and unknowing due to his intellectual disability and 

the ineffective assistance of his prior counsel. 

 Appellant’s former counsel testified at the motion-for-new-trial hearing, 

stating: 

 Counsel first learned of appellant’s illiteracy during the 

sentencing hearing, and had he known this information he 

would not have recommended a “guilty” plea before first 

seeking a competency evaluation. 

 Appellant’s mother had told counsel that appellant had been in 

special classes, that counsel knew appellant “was slow,” “just 

not how slow,” and that appellant’s mental health was the 

subject of an investigation that petered out after appellant’s 

mother and the complainant advised appellant the records were 

not recoverable. 

 Counsel would have handled aspects of the representation 

differently had he known that appellant was illiterate. 

 Appellant also offered, without objection, the affidavit of Rebecca Hamlin, 

Ph.D., PC, who attached her psychological evaluation report. The report contained 

the results of her testing, her diagnoses, and her opinions expressed through her 

retrospective assessment of factors affecting appellant’s ability to participate 
6

during his trial. In the report Dr. Hamlin notes appellant’s IQ score of 61, which 

“would place [appellant] in the extremely low range of intellectual functioning.” 

Dr. Hamlin also notes that appellant’s overall level of functioning was “adequate to 

engage counsel in a reasonable and rational manner[,]” but that [appellant’s] 

limited verbal abilities “would necessitate assistance with any written materials, 

simplified explanations, and frequent checks for clarity.” 

 Appellant also filed a five-sentence affidavit in which he stated: 

I trusted my lawyer. 

My lawyer told me to plead guilty. 

He said I would get probation. 

He never told me I would have to take the stand. 

Now I wish I did not plead guilty. 

At the conclusion of the hearing, the trial court denied the motion for new trial. 

II. ISSUES AND ANALYSIS

 Appellant asserts that he was denied his right to effective assistance of 

counsel. Both the United States Constitution and the Texas Constitution guarantee 

an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. 

art. I, § 10; Tex. Code Crim. Proc. art. 1.051 (West, Westlaw through 2017 1st 

C.S.). This right necessarily includes the right to reasonably effective assistance of 

counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 

674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To 

prove ineffective assistance of counsel, appellant must show that (1) trial counsel’s 

representation fell below an objective standard of reasonableness, based on 

prevailing professional norms; and (2) there is a reasonable probability that the 

result of the proceeding would have been different but for trial counsel’s deficient 

performance. Strickland, 466 U.S. at 688–92. To have a court set aside a 
7

defendant’s “guilty” plea as involuntary based on the deficient performance of 

defendant’s trial counsel in advising the defendant regarding the “guilty” plea, the 

defendant must prove a reasonable probability that, but for trial counsel’s deficient 

performance, the defendant would not have pleaded “guilty.” See Lee v. U.S., —

U.S.—,—, 137 S.Ct. 1958, 1965, 198 L.Ed.2d 476 (2017); Miller v. State, 548 

S.W.3d 497, 499–500 (Tex. Crim. App. 2018). The appellant bears the burden of 

proving ineffective assistance of counsel by a preponderance of the evidence. 

Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). 

 A reasonable probability is one sufficient to undermine confidence in the 

outcome. Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). In 

determining whether an appellant has been prejudiced by counsel’s deficient 

performance, the court “must consider the totality of the evidence before the judge 

or jury.” Strickland, 466 U.S. at 695. But, “a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the presumption that, 

under the circumstances, the challenged action might be considered sound trial 

strategy.” Id. at 689. “[A] verdict or conclusion only weakly supported by the 

record is more likely to have been affected by errors than one with overwhelming 

record support.” Id. at 696.

An appellate court reviews a trial court’s denial of a motion for new trial for 

an abuse of discretion, reversing only if no reasonable view of the record could 

support the trial court’s ruling. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. 

App. 2017). This is a deferential standard of review that requires appellate courts 

to view the evidence in the light most favorable to the trial court’s ruling. Id. We 

must presume that the trial court disbelieved evidence supporting appellant’s 

ineffective-assistance claims. See id. at 821. In determining whether the trial court 
8

abused its discretion, an appellate court must not substitute its own judgment for 

that of the trial court, and it must uphold the trial court’s ruling if it is within the 

zone of reasonable disagreement. Id. at 820. 

A. The trial court did not err in impliedly concluding appellant did not prove 

prejudice from trial counsel’s failure to pursue a competency examination. 

In his second issue, appellant argues that that trial counsel was ineffective 

for not pursuing a competency examination in advance of appellant’s pleading 

“guilty.” We presume for purposes of analysis that appellant’s counsel’s decision 

not to request a competency examination fell below an objective standard of 

reasonableness (based on prevailing professional norms), and we address the 

second prong under Strickland. Under this prong, appellant must show a 

reasonable probability that he would have been found incompetent to stand trial if 

the issue of competency had been raised and fully considered. Ex parte LaHood, 

401 S.W.3d 45, 54 (Tex. Crim. App. 2013); see Strickland, 466 U.S. at 695. 

Anything less than a finding of incompetence cannot have changed the outcome. 

See Ex parte LaHood, 401 S.W.3d at 54. 

A person is presumed to be competent, and the burden rests on a criminal 

defendant to prove incompetency by a preponderance of the evidence. Tex. Code 

Crim. Proc. art. 46B.003(b) (West, Westlaw through 2017 1st C.S.); Ex parte 

LaHood, 401 S.W.3d at 54. To prove incompetency there must be some 

affirmative showing that the person lacked “sufficient present ability to consult 

with the person’s lawyer with a reasonable degree of rational understanding” or “a 

rational as well as factual understanding of the proceedings against the person.” 

Tex. Code Crim. Proc. art. 46B.003(a). To prevail in a claim of ineffective

assistance of counsel in this context, appellant must prove that but for his trial 

counsel’s deficient performance, there is a reasonable probability that the fact-
9

finder would have found him incompetent to stand trial. See Ex parte LaHood, 

401 S.W.3d at 54. In this type of analysis, courts consider the factors used by the 

experts in evaluating the broader question of competency, which include whether a 

defendant can

(1) understand the charges against him and the potential consequences

of the pending criminal proceedings; (2) disclose to counsel pertinent

facts, events, and states of mind; (3) engage in a reasoned choice of 

legal strategies and options; (4) understand the adversarial nature of 

criminal proceedings; (5) exhibit appropriate courtroom behavior; and 

(6) testify.

Ex parte LaHood, 401 S.W.3d at 54. Dr. Hamilin’s expert report addresses each of 

these factors in her interview with appellant: 

(1)Appellant stated he was charged with “assault,” that he “could get 

probation or county time;” that his lawyer led him to understand 

that if he pled “guilty” he would get probation but that the judge 

told him there was no promise he would get probation. 

(2)Appellant “was able to communicate adequately if questions were 

restated in simple form and if there were checks for clarity.”

(3)Appellant “accurately described the pleas of “guilty” as “I did it” 

and “Not Guilty” as “I didn’t do it.” He indicated that he 

understood and provided reasons he might choose between a judge 

and jury trial. “When asked if he would agree with something his 

lawyer suggested even if he did not understand (i.e., pleading 

guilty to get probation), he initially stated he would not agree to 

something he did not understand but later affirmed that he was 

likely to pretend to understand things even when he did not.”

(4)Appellant described the defense attorney’s job as “for me” and 

state’s attorney’s job as “against me.” Appellant understood that 

trial the judge’s role was to “see if he was guilty or not.” 

(5)Appellant “displayed appropriate behavior throughout the more 

than three and a half-hour long evaluation process.” 

(6)Appellant’s “ability to recount past events and describe situations 

under stress was judged to be adequate,” but “his ability to respond 

to complex questions was judged to be impaired and concepts had 
10

to be broken down and explained several times.” 

 Appellant demonstrated during the sentencing hearing that he could testify, 

giving details about facts, events, and his state of mind, specifically about his 

mental health. He recalled, among other things, the names of medications that he 

took while in high school; that he stopped taking those medications after the tenth 

grade when he left high school; and he explained that he was a slow learner. 

The record also provides some evidence that appellant engaged in a reasoned 

choice of strategies and options. See Ex parte LaHood, 401 S.W.3d 45, 55 (Tex. 

Crim. App. 2013) (reviewing appellant’s testimony that demonstrated he “engaged 

in a reasoned choice of legal strategies and options.”). Appellant’s trial counsel 

explained that in preparing appellant to testify, “appellant agreed to testify,” and 

appellant “wanted to emphasize he wanted to get help for the problems that he had 

with anger, anger management, things of that nature.” His counsel supported this 

strategy and prompted testimony in this manner: 

Q. Okay. Now, Mr. Moore, you understand that we’re here today 

because we are seeing if the Court would take into consideration that 

you may be a candidate for probation?

A. Yes, sir. Please. Yes, sir. 

Q. Okay. Now, do you feel that if you were able to get some help, you 

would be able to improve your conditions as far as your -- the -- your 

mind, your anger management issues that created so many problems 

for you in the past? 

A. Yes. 

Q. Okay. Why do you think that? Have you ever gotten any help? You 

haven’t gotten any help?

A. That’s what I’m saying, I would like to get help. That’s what I 

want. 

Q. Are you willing to make the sacrifices on things that you would be 

told to do? 
11

A. Yes, sir. Yes, sir. Promise. 

 The hearing record contains evidence that appellant understood the charges 

against him and the potential consequences of the pending criminal proceedings. 

Although appellant’s former counsel testified that had he known that appellant was 

illiterate he would have pursued a competency evaluation before appellant entered 

his “guilty” plea, former counsel also testified at length about his perception of 

appellant during his interactions with appellant before appellant entered his plea 

and later in preparing appellant to testify. Former counsel repeatedly stated his 

belief that appellant understood the nature of the charges, the plea process, and 

attendant consequences:

Q. All right. So you read [the plea documents] to him and he was 

shaking his head affirmatively that he understood?

A. That’s correct. I wouldn’t have moved forward if he hadn’t said 

that. 

Q. At any time did he ask you any questions? 

A. No. 

Q. About what you were reading to him? 

A. No, he did not. 

Q. Did he ever tell you that he didn’t understand what you were 

reading to him? 

A. No, he did not.1

Q. And did you read each of the documents word for word to him? 

A. For him, I had -- yes. For him, I did. We took our time. Sometimes 

we rushing, but in this particular case, it wasn’t a rush. We took our 

time.

Q. And did he understand what the procedure was going to be in terms 

 

1 During the direct examination of appellant at the punishment hearing, his counsel used the 

word “duration” in a question; appellant asked him what the term meant as opposed to acting like 

he understood the term and answering the question anyway. 
12

of taking the plea of guilty and then having the sentencing be done at 

another time after a Presentence Investigation report could be 

completed? 

A. I explained that to him, yes. 

Q. And did you feel that he understood that? 

A. I -- I really did. I thought he understood it. But again, we didn’t 

interact or he didn’t ask questions that -- to be specific, I just 

generally went over everything with him. 

Q. Okay. And was it his decision to plead guilty to this charge? 

A. It – it’s — I explained to him that it wasn’t a guarantee, but he 

understood that he would probably get probation, but he knew that he 

could not. We talked about the range of punishment and that, too.

Q. All right. And did he want to go forward with a plea? 

A. Yes, he wanted to go forward with the plea. 

Q. All right. And did you explain to him that his options were going 

forward with the plea or taking the case to trial? 

A. I -- told him his -- with the complainant, his better options would 

be with the PSI. 

Q. Did you tell him what his legal options were at the time that you 

were going over the plea with him, that he had the option of either 

pleading guilty to the case or setting the case for trial? 

A. Yes, we discussed that. 

Q. And which did he choose to do? 

A. After my explanation, he wanted to go forward with the PSI. 

. . . 

Q. Did you also have the discussion with him about whether or not he 

wanted to testify during his Presentence Investigation hearing? 

A. We talked and I told him he needed to testify. 

Q. And did he agree with you that he would testify? 

A. He agreed that he would testify. 

Q. And at any time did you feel that he didn’t understand what he was 

agreeing to by testifying?
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A. No, I thought he -- I thought we were all on one page. 

Appellant points to his low IQ test scores. Appellant’s juvenile records 

revealed that approximately eight years before the case commenced, appellant, at 

the age of sixteen, was professionally assessed as “a young man with limited 

intellectual capacities” having the verbal abilities of a first- or second-grader, and 

scored an intelligence quotient (IQ) of 84, or “low average.” These earlier scores 

(outside the context of litigation) bear credibility that subsequent IQ scores may 

lack. Even presuming the validity of the lower IQ score of 61 mentioned in Dr. 

Hamlin’s report, Dr. Hamlin stated that appellant’s overall level of functioning was 

still “adequate to engage counsel in a reasonable and rational manner.” And, 

bearing in mind that Dr. Hamlin added that appellant’s limited verbal abilities 

“would necessitate assistance with any written materials, simplified explanations, 

and frequent checks for clarity,” we have found nothing in the record that suggests 

that appellant lost the ability to understand the proceedings or to confer rationally 

with his counsel. Instead, as described in more detail in the next section, the record 

contains evidence that trial counsel’s interactions accommodated appellant’s 

limitations, just as the expert suggested. We conclude that the trial court did not 

err in impliedly determining that appellant did not meet his burden of proving a 

reasonable probability that the fact-finder would have found him incompetent to 

stand trial had there been a competency hearing. See Ex parte LaHood, 401 

S.W.3d at 54. Thus, we overrule appellant’s second issue. 

B. Evidence supports a finding that appellant’s trial counsel (and the trial 

court) took steps to ensure a knowing and voluntary plea, and that the plea 

was not obtained by misrepresentations. 

In his third issue, appellant complains his counsel was ineffective (1) 

because counsel did not communicate with appellant about the “guilty” plea in a 

way appellant could understand, and (2) because counsel gave misleading advice 
14

about appellant’s chances of probation. Appellant asserts that this conduct resulted 

in an involuntary “guilty” plea. We first consider whether the trial court erred by 

impliedly concluding that appellant did not meet his burden of proving the 

challenged conduct under the first of these two ineffective-assistance theories. 

1. The challenged conduct under the first theory 

Under his first theory appellant asserts that his trial counsel failed to 

communicate with appellant about the “guilty” plea in a way appellant could 

understand because counsel did not provide simplified explanations of legal 

information and failed to tailor his communications to appellant’s disability. 

Appellant relies upon Dr. Hamlin’s statement that appellant’s capacity to engage 

with counsel in a reasonable and rational manner requires “assistance with any 

written materials, simplified explanations, and frequent checks for clarity.” We 

presume, without deciding, that prevailing professional norms required appellant’s 

counsel to communicate with appellant about the “guilty” plea in a way appellant 

could understand, provide simplified explanations of legal information, and to 

tailor counsel’s communications to appellant’s disability. 

In his affidavit appellant’s trial counsel testified that he did not make 

accommodations because he was unaware of any mental or intellectual deficiency 

until appellant took the stand at the punishment hearing. But the court was free to 

discredit that evidence, and instead credit counsel’s testimony at the motion-fornew-trial hearing and other evidence to the contrary.2

 

At the motion-for-new-trial hearing trial counsel testified that he had known 

appellant was “slow” and that appellant had been enrolled in special education 

 

2

 At the punishment hearing, trial counsel predicated a question to the complainant with a 

reference to a discussion he had with her about appellant’s intellectual deficiencies before 

appellant’s plea.
15

classes in school. He further testified that at the time of the plea, he believed that 

appellant understood the plea documents, the nature of the proceedings, and 

consequences of the plea and sentencing. Appellant’s counsel explained that he 

and appellant “took [their] time” with the plea paper work, without rushing. Trial 

counsel recalled that appellant frequently confirmed the material was clear by 

reference to appellant’s nodding as the two continued through the paperwork. 

Counsel testified that he explained the proceedings, the sentencing process, the 

punishment range, and possible outcomes. 

Under the applicable standard of review, we conclude that the trial court did 

not abuse its discretion by impliedly concluding that appellant did not meet his 

burden of proving that his trial counsel failed to communicate with him about the 

“guilty” plea in a way appellant could understand, that counsel failed to provide 

simplified explanations of legal information, or that counsel failed to tailor his 

communications to appellant’s disability. See Burch, 541 S.W.3d at 821; Rivera 

v. State, 981 S.W.2d 336, 340 (Tex. App.—Houston [14th Dist.] 1998, no pet.). 

Accordingly, we conclude that the trial court did not err in denying the motion for 

new trial as to the first theory under the third issue. See Burch, 541 S.W.3d at 821; 

Rivera, 981 S.W.2d at 340. 

2. Prejudice under each theory 

 In the alternative, we presume for the sake of argument that appellant’s trial 

counsel failed to communicate with him about the “guilty” plea in a way appellant 

could understand, that counsel failed to provide simplified explanations of legal 

information regarding the plea, and that counsel failed to tailor his communications 

regarding the plea to appellant’s disability. In addition, we presume, without 

deciding, that appellant’s trial counsel gave appellant misleading advice about 

appellant’s chances of probation and that counsel’s advice to appellant regarding 
16

the “guilty” plea fell below an objective standard of reasonableness. Even under 

these presumptions, appellant still had the burden of proving prejudice from one or 

more of these acts or omissions. See Lee, —U.S. at —, 137 S.Ct. at 1964; Miller, 

548 S.W.3d at 499.

To have a court set aside a defendant’s “guilty” plea as involuntary based on 

the deficient performance of the defendant’s trial counsel in advising the defendant 

regarding the “guilty” plea, the defendant must prove a reasonable probability that, 

but for trial counsel’s deficient performance, the defendant would not have pleaded 

“guilty.” See Lee, —U.S. at —, 137 S.Ct. at 1965; Miller, 548 S.W.3d at 499–500; 

Cano v. State, 361 S.W.3d 252, 255 n.3 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.). Neither in his motion for new trial nor in his appellate briefing has 

appellant asserted that but for his trial counsel’s allegedly deficient performance, 

appellant would not have pleaded “guilty.” No evidence before the trial court 

directly addresses this issue. In his affidavit, appellant states that he now wishes 

he had not pleaded “guilty.” This statement is not the same as saying that but for 

his trial counsel’s deficient performance, appellant would not have pleaded 

“guilty.” In any event, the trial court reasonably could have disbelieved any of 

appellant’s testimony that supports the granting of a new trial. See Clarke v. State, 

305 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). 

Our dissenting colleague concludes that there is a reasonable probability 

that, but for trial counsel’s deficient performance, appellant would not have 

pleaded “guilty.” See post at 7. Our colleague bases this conclusion on appellant’s 

testimony that his lawyer told him to plead “guilty,” his lawyer said appellant 

would get probation, and now appellant wishes that he had not pleaded “guilty.” 

See id. Though appellant expresses regret at having pled “guilty,” appellant has 

not stated that but for his trial counsel’s allegedly deficient performance, appellant 

would not have pleaded “guilty.” Even if appellant had so testified, the trial court 
17

reasonably could have disbelieved that testimony. See Clarke, 305 S.W.3d at 848. 

Our dissenting colleague fails to take into account that this court is reviewing the 

trial court’s denial of appellant’s motion for new trial based on ineffective 

assistance of counsel rather than examining such a claim for the first time on 

appeal. See post at 6–7. 

Under the applicable standard of review, we conclude that the trial court did 

not err by impliedly concluding that appellant did not meet his burden of proving a 

reasonable probability that, but for his trial counsel’s deficient performance, 

appellant would not have pleaded “guilty.” See Miller, 548 S.W.3d at 499–500; 

Cano, 361 S.W.3d at 255 n.3; Clarke, 305 S.W.3d at 848. 

For the foregoing reasons, we overrule appellant’s second issue. 

C. Appellant’s trial counsel presented mitigating evidence regarding mental 

health at the punishment hearing. 

In his fourth issue, appellant complains that his trial counsel failed to present 

mitigating evidence at the punishment hearing regarding appellant’s mental-health 

status. Appellant asserts that his counsel failed to investigate his mental-health 

issues and that this failure to investigate resulted in a failure to present mitigating 

evidence regarding appellant’s mental health during the punishment hearing. 

To the extent appellant argues that his trial counsel presented no mitigating 

evidence as to mental health, the trial court reasonably could have concluded the 

opposite. In fact, appellant’s trial counsel made appellant’s mental health and 

intellectual limitations a central theme at the punishment hearing and wove these 

elements into his presentation:

 Counsel explained that, despite appellant’s “bipolar issues” and 

enrollment in “special classes” in school years, appellant had 

never received any type of counseling or treatment after he 

went to high school. 
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 Trial counsel offered as exhibits three letters of 

recommendation in support of appellant. The letters attribute 

appellant’s mental health to be the source of appellant’s past 

behavior and attribute mental health treatment as the key 

solution. The letters state that appellant was usually mild 

tempered but just needed counseling to exercise self-control, 

and that appellant is in the process of receiving medication to 

control his mental health problems. 

 Appellant’s counsel elicited favorable testimony from the 

complainant about appellant’s mental deficiencies and school 

performance; she stated, “He wasn’t always in a classroom 

setting with the regular children, he was always in one room his 

whole time of going to school all the way to high school.” 

 Counsel called appellant’s friend to testify that appellant 

generally has a good character, and that appellant would benefit 

significantly from professional counseling to assist him with his 

anger-management issues. In response to appellant’s trial 

counsel’s question about “his slowness with respect to his 

schooling and education,” the friend explained that he knew 

appellant was “a little bit off track.” 

 Counsel called appellant, who discussed his cognitive 

deficiencies and troubles in school, particularly with reading 

and writing, and that appellant never received the counseling or 

treatment that he needs to learn to cope with his angermanagement and impulsivity issues. 

During closing argument at the punishment hearing, appellant’s trial counsel 

stated that he learned appellant was illiterate during his testimony, and counsel 

emphasized the lack of prior treatment, stating: 

I think he tries to hide or to avoid letting people know that he does

have a problem reading, understanding, and it all came out today. He 

basically has some very low intellectual skills that is certainly 

contributing to his problem. I think he is young enough, even though 

he has a history, I think he is young enough to benefit from what our 

probation and rehabilitation perhaps can do for him.
19

To the extent appellant complains that his trial counsel presented no mitigating 

evidence as to mental health, the trial court reasonably could have concluded that 

appellant’s trial counsel did present such evidence. To the extent appellant asserts 

that appellant’s counsel should have investigated appellant’s mental health and 

that an investigation would have uncovered more mitigating evidence, appellant 

had the burden to prove what would have been discovered. See Stokes v. State, 

298 S.W.3d 428, 432 (Tex. App.—Houston [14th] 2009, no pet.). A claim for 

ineffective assistance based on trial counsel’s failure to investigate the facts of the 

case fails absent a showing of what the investigation would have revealed that 

reasonably could have changed the result of the case. See Cooks v. State, 240 

S.W.3d 906, 912 (Tex. Crim. App. 2007); Stokes v. State, 298 S.W.3d 428, 432 

(Tex. App.—Houston [14th] 2009, no pet.). In his motion for new trial, appellant 

generally alleged that trial counsel “failed to properly investigate or prepare for the 

PSI hearing,” but appellant made no contention regarding a failure to mitigate. 

 Although appellant attached to the motion an excerpt from mental-health 

records that appellant’s appellate counsel obtained from the Harris County Juvenile 

Probation Department (and highlighted that these documents indicate appellant had 

a reading ability at a second-grade level, a spelling ability at a first-grade level, and 

an IQ of 84), appellant did not assert then (nor does he assert on appeal) that this 

evidence, if admitted during the punishment hearing, would have changed the 

result in this case. Only in closing argument, did appellant’s appellate counsel 

argue that Dr. Hamlin’s opinions (that appellant’s limited verbal abilities and firstgrade reading level would necessitate assistance with written materials, simplified 

explanations, and frequent checks for clarity) “would have been extremely 

important for the court to assess a proper sentence.” Even in his brief on appeal 

appellant fails to specify what the investigation would have revealed that could 
20

have changed the outcome. 

Even if we presume appellant contends that appellant’s juvenile records and 

Dr. Hamlin’s opinions should have been offered as mitigating evidence and that 

appellant contends this evidence would have changed the outcome, the trial court 

reasonably could have determined that appellant had not shown a reasonable 

likelihood that the outcome of the punishment hearing would have been different if 

counsel had submitted these materials to the trial court. See Stokes, 298 S.W.3d at 

432. 

Appellant contends that the facts of this case are analogous to those in Lopez 

v. State and Lampkin v. State, decisions in which sister courts found prejudicial 

ineffective assistance rendered at the punishment stage flowing from a failure to 

investigate mental health. 

In Lopez, after first attempting to withdraw from the case on the eve of trial,

defense trial counsel presented virtually no evidence of mitigating factors to 

balance against the strong aggravating factors. Lopez v. State, 462 S.W.3d 180, 

189 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The only evidence counsel 

presented was a “one-sentence statement to the trial court that his client wanted the 

court to know that he considered himself to be a good role model.” Id. In Lampkin

v. State, the Sixth Court of Appeals found ineffective assistance where “trial 

counsel performed no investigation into any possible mental health or other 

mitigating factors, and he presented no mitigating evidence for the jury to balance 

against the aggravating factors presented by the State.” 470 S.W.3d 876, 925–26 

(Tex. App.—Texarkana 2015, pet. ref’d). The defendant in Lampkin had 

undergone significant mental-health treatment while incarcerated previously and 

while awaiting trial, appellate counsel presented over thirty entries from mentalhealth records, which contained “the only possible mitigating evidence, 
21

demonstrated that Lamkin had been homeless and impoverished, had diminished 

capacity, suffered from psychotic delusions and major depressive disorder, had 

attempted suicide, and had a long history of drug abuse.” Id. at 924. The Lampkin

court considered this to be evidence that revealed “the kind of troubled history. . . 

relevant to assessing defendant’s moral culpability.’” Id., citing Wiggins v. Smith, 

539 U.S. 510, 535, 123 S. Ct. 2527, 2542, 156 L. Ed. 2d 471 (2003).

 Appellant’s trial counsel’s efforts at the punishment hearing are not 

comparable to those of the attorney in Lopez. See Lopez, 462 S.W.3d at 189. And, 

in Lampkin the undiscovered mental-health records were the only available source 

of evidence of the defendant’s troubled history. The facts in today’s case include

evidence of appellant’s troubled history, elicited from witnesses by trial counsel. 

This evidence was also included in the PSI report. To the extent appellant’s 

juvenile records contain some details about his past, most of the same details also 

appear in the PSI report. The Lampkin and Lopez cases are not on point. See

Lampkin, 470 S.W.3d at 925–26; Lopez, 462 S.W.3d at 189.

For the foregoing reasons, we overrule the fourth issue. 

D. Appellant has not established the ineffective-assistance complaints raised 

for the first time on appeal under his fifth issue. 

 In his fifth issue, appellant complains for the first time on appeal that his 

trial counsel was ineffective for (1) failing to prepare appellant to testify at the 

punishment hearing, (2) simply telling him he needed to take the stand, and (3) 

failing to advise him that he would be subject to unfavorable scrutiny. 

 Appellant did not raise these complaints in the trial court; so, the trial court 

did not rule on these issues. The hearing record on appellant’s motion for new trial 

contains evidence that appellant agreed to take the stand following his counsel’s 

suggestion that it was necessary to do so. The record also contains evidence that 
22

appellant and his counsel discussed topics of the testimony and that appellant 

wanted to testify about his desire to obtain anger-management treatment. Nothing 

in the record shows whether appellant was counseled about being subject to 

unfavorable scrutiny; appellant’s trial counsel was not asked about this topic at the 

motion-for-new-trial hearing. As to this alleged conduct, we conclude that 

appellant has not established (1) that trial counsel engaged in this conduct, or (2) 

that in doing so, counsel’s representation fell below an objective standard of 

reasonableness based on prevailing professional norms, or (3) that there is a 

reasonable probability that the result of the punishment hearing would have been 

different but for trial counsel’s deficient performance. See Thompson v. State, 94 

S.W.3d 11, 21–22 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

 Accordingly, we overrule appellant’s fifth issue. 

E. The trial court did not err in impliedly concluding appellant did not prove 

prejudice from trial counsel’s failure to investigate appellant’s intellectual 

capacity. 

Under his first issue, appellant complains that trial counsel was ineffective 

for failing to investigate (or cutting short his investigation) as to appellant’s mental 

capacity. A criminal-defense lawyer “has a duty to make reasonable investigations

or to make reasonable decision that makes particular investigations unnecessary.”

Strickland, 466 U.S. at 691. “[S]trategic choices made after a thorough 

investigation of law and facts relevant to plausible options are virtually 

unchallengeable,” while “strategic choices made after less than complete 

investigation are reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation.” Id. at 690–91. In addition to 

proving that trial counsel’s representation fell below an objective standard of 

reasonableness based on counsel’s alleged breach of this duty to investigate, 

appellant also had to show a reasonable probability that, but for counsel’s breach 
23

of this duty, the result of the proceeding would have been different. Perez v. State, 

310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

Appellant’s trial counsel stated that he knew that appellant was “slow,” and 

testified that appellant’s mother indicated to him that appellant had been in 

“special classes,” and received some mental-health treatment during his school 

years. Counsel was told appellant had received no treatment since then. Counsel 

asked appellant’s mother and the complainant to obtain mental-health documents. 

Trial counsel did not subpoena the school records and confirmed that he made no 

effort to contact the school. Counsel testified that appellant’s mother had assured 

him that she had gone to the school “to talk to the teachers at the high school,” and 

she “said they just no longer had those records.” Appellant’s trial counsel’s 

testimony reflects that based on his discussion with appellant’s mother, he formed 

the belief that no other records pertaining to appellant’s mental health during 

appellant’s school years were obtainable and therefore counsel ceased further 

efforts. We presume, for the sake of argument, that appellant’s trial counsel failed 

to investigate appellant’s intellectual capacity and that this failure to investigate 

fell below an objective standard of reasonableness, based on prevailing 

professional norms.

Appellant had the burden to prove what would have been discovered if his 

trial counsel had conducted a reasonable investigation of appellant’s intellectual 

capacity. See Stokes, 298 S.W.3d at 432. A claim for ineffective assistance based 

on trial counsel’s failure to investigate the facts of the case fails absent a showing 

of what the investigation would have revealed that reasonably could have changed 

the outcome of the case. See Cooks, 240 S.W.3d at 912; Stokes, 298 S.W.3d at 

432. 

 Appellant does not provide a clear statement in his appellate brief of what he 
24

alleges as the harm from trial counsel’s allegedly deficient performance under the 

first issue, but appellant suggests that this failure to investigate led to all of the 

other complaints he set forth in his brief. Appellant only offered proof of records 

from the Harris County Juvenile Probation Department and Dr. Hamlin’s 

psychological evaluation report, and the trial court reasonably could have 

determined that appellant did not show a reasonable likelihood that the result of the 

proceeding would have been different at any stage of the case if counsel had 

discovered these materials or documents similar to them as part of counsel’s

investigation. See Stokes, 298 S.W.3d at 432. In addition, we have overruled all of 

appellant’s other issues. Accordingly, we overrule the first issue.

 Having overruled all of appellant’s issues, we affirm the trial court’s 

judgment. 

 /s/ Kem Thompson Frost

 Chief Justice 

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan (Hassan, 

J., dissenting).

Publish — TEX. R. APP. P. 47.2(b).