### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00089- CR

Sc ot t L e e Or so n, A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF BELL CO UNTY, 264TH JUDICIAL DISTRICT

NO. 55,019 , HO NORAB LE JOE CARROLL, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N
Scott L ee Orson appeals his conviction for the offe nse of f org ery , for whic h he wa s sentenc ed to eig ht months i n state jail. Tex. Pen. Code Ann. § 32.21(d) (West Supp. 2004-05). On appea l, Orson contends that his trial attorney ’s fa ilure to investigate the fa cts and c ircumstance s g iving r ise to the indictment denied him eff ective a ssistance of c ounsel. Specifical ly , Orson
c on te nd s th a t, h a d h is tri a l c ouns e l in ve sti g a te d th e c ir c ums tanc e s o f t he a lle g e d for g e ry , h e wo uld have disc overe d that if Orson wa s g uilty of any offe nse, it was theft and not f org ery . For

the re asons that f oll ow , w e a ff

ir m th e jud g me nt o f t

he tr ia l c ourt
. BACK GR OUND Scott Orson was indicted f or for g ery o n J uly

9, 2003. The indictment alleg ed that Or so n f or g e d a c he c k in the a mou

nt o f $ 27 7. 30 by

a lte ri ngthe c he c k in

su c h a mann e r t hat itI n f a c t, h ow e ve r, the a c c ount n umb e r f ou nd on the c he c k in

qu e sti on was no t th e same 1 numbe r a s th a t on

the a c c ount o n w hic h O rs on wa s a n a uth or ize d u se r. Acco rding to a n a ff ida vit filed by Orson’s mother , the account on which Orson was a n authorized user e nded in the number s 4415, wher eas the acc ount number found on the c heck in que stion ended in the numbers 4524. 2 purported to be the a ct o f authoriz ed sig natories of Netwe b Desig ns, I nc. Or son admits that he fabr icated the names of both sig natories on the c heck ( J ames Tidwel l an d J ames Strauss) a nd the
c omp any Ne tw e b D e sig ns and oth e rw ise “ manip ulat[e d]” the c he c k, bu t he ma int a ins that be c a us e he w a s an a

u th o r iz e d u s e r o f th e c r e d it c ar d a c c o u n t o n w h ic h th e c h e c k s w e r e dr aw n , he had no intent to defra

ud—a re quired e lement of for g ery . In addition, he asser ts that he had a ltered se vera l 1

c he c ks in s uc h a

mann e r i n th e pa st and that the y ha d a ll be e n pa id in fu ll. Or so n c la ims that the on ly
rea son the che ck in question did not clea r was that his mother, the other a uthorized signator

y on the
acc ount, had closed the acc ount without his knowledg e bef ore the chec k was cashe d. Orson had not been in contact with his mother for at l east nine months prior to t he eve nts at issue in this case and had not persona lly made any pay ments on the cre dit card a ccount f or that amount of time. He had not rec eived a

ny statement for

the ac count, as they

wer e appa

rently being sent to his mother. On October 8, 2003, Orson pleaded g uilty to forg ery . I n the sentenc ing pha se of the h e ar i n g , h o w e v e r , O r s o n m a d e c o m m e n t s r a i s i n g a qu e s t i o na s t o w h e t h e r

h e b e l i e v e d

h e w a s g u i l t y, and the trial judge allowed the plea to be withdrawn. On N ovember 25, 2003, Orson ente red a nother plea of g uilty without a plea ag ree ment. During this hear ing, Orson t estified that he ha d discussed the cha rg es in the indictment with his counsel , Richard O. H arr is; Orson said he under stood the
c ha rg e s, un de rs too d th e punis hme nt r ang e fo r t he c ha rg e d o ff e ns e , w a s me nta lly

c omp e te nt,
vo lun tari ly

wa ive d a jur y tr ia l, a nd wa s f re e ly and vo lun tari ly

ple a din g g uil ty be c a

us e he wa s g uil ty3

of the off ense a s char g ed in the indictment and for no othe r re ason. Having thus testified, O rson was fo un d guil ty , a

nd wa s se nte nc e d to e ig ht m on ths in s ta te ja il. Orson subseque ntly

reta ined new c ounsel, J ames H. K reimey er, a

nd filed a motion for new t ria l. I nh is mo ti o n , O r s o na ll e g e d th a t H ar r is , h is p r e v io u s tr ia l c o u n s e l, h a d r e n d ere d ineffe ctive assistanc e by

not f ully investigating the fac ts and circ umstances that led to the c harg e of f o r g e r y. At

the he ari ngon

the mot ion

fo r n e w t

ri a l, O rs on , O rs on ’s mot he r, and Ha rr is testified. The district c ourt denied the motion. Orson now a ppeals the c onviction and asks that the jud g me nt b e se t a sid e and the c a us e re mand e d to the tr ia l c ourt fo r a ne w tri a l.
DI SCU SSIO N By his sole issue on appea l, Orson contends that he wa s denied his rig ht to effe ctive assistance of counsel beca use his tria l c ounsel failed to f ully investigate the circ umstances that g ave rise to the indictment bef ore the November

hear ing at which Orson plea ded guilty . For a plea of g uil ty to b e a c c e pte d b y

the c ou rt, i t mu st b e kn ow ing ly and vo lun tari ly

g ive n b y a me nta lly
c omp e te nt d e fe nd ant. Te x. Cod e Cr im. Pr oc . A nn . a rt . 2 6. 13 (b ) ( Wes t 20 03 ); se e Ex pa rteBa ttl e , 81 7 S. W.2 d 8 1, 83 (T e x. Cr im. Ap p. 19 91 ). I n de te rm ini ng wh e the r the ple a wa s e nte re d v olu nta ri ly and k n o wing ly , the cour t considers whe ther c ounsel rende red e ffe ctive re prese ntation for the defe ndant during the proc ee d i n g. Tou pa l v . S tat e , 926 S.W .2d 606, 607 (Tex. App.—Texarkana 1996, no pet.). In order to pr evail on a claim alleg ing ineffe ctive assistance of counse l in the plea proce ss, a defenda

nt must prove by a prepondera nce of the evidence that his counsel’s re prese ntation fe ll b e low an o bje c tiv e sta

nd ard of re a so na

ble ne ss and that the de fi c ie nt pe rf or manc e pr e jud ic e d h is4

defe nse. Strickland v. W

ashington , 466 U.S. 688, 687 (1984) ; B att le , 817 S.W .2d at 83. I n showing that his defense was pre

judiced, t h e ap p ellant must demonstrate that, but for counsel’s de ficient advice , “he w ould n o t have ple aded guilty and would have insisted on goingto trial.” Ex pa rte Morrow , 952 S.W .2d 530, 536 (Tex. Crim. App. 1997) (citing Hi ll v . Lo c k ha rt , 474 U.S. 52, 58-59 (1 98 5) ). Whe n th e a lle g e d e rr or of tr ia l c ouns e l is a

fa ilure to i nv est igat e or

dis c ov e r p ote nti a lly exculpatory

evidenc e, whe ther or not the f ailure “pre

judiced the de fenda

nt by causinghim to plead g uilty rathe r than g o to trial will depend on the likelihood that discover y of the e vidence would have led the attorne y

to change his recommendation as to the plea,” which depe nds “in larg e par t on a predic tion that the evidence likely would have c hang ed the outcome of a tria l.” Cas te lla no v . S tat e , 4 9 S
. W
. 3 d 5 6 6 , 5 7 6 (T ex . Ap p . — C o rp u s C h ri s t i 2 0 0 1 , p et
. re f’ d ) ( ci t i n g Hill, 474 U.S. at 59) . A str on g pr e su mpt ion

e xists “th at couns e l’ s a c tio ns fe ll w ith in t he wi de ra

ng e of re a so na bly profe ssional assistance,” Ton g v . S tat e , 25 S.W .3d 707, 712 (Tex. Crim. App. 2000), and judicial revie w of a

defe ndant’s inef

fec tive assistance claim must theref o re b e highly

defe rential to trial counsel. Ex

pa rteW e lbo rn , 785 S.W .2d 391, 393 (Tex. Crim. App. 1990). Or so n a sse rt s th a t hi s tr ia l c ouns e l w a s in e ffect iv e be c a us e of his fa ilure to f

ull y
asce rtain whe ther a ll the elements of a forg ery wer e pre sent befor e he a llowed his client to enter a plea of g uilty . Specifica lly , Orson states that a n issue as to whether h e h ad an “ intent to defra ud”
arose from his testimony

at the October hearing and resulted in the wit hdraw al of his first g uilty plea. Orson cla ims that thi s testimony should have alerte d Har ris that there was e x culpatory evidenc e that
ne e de d to be fu

rt he r i nv e sti g a te d b e fo re he c ou ld d e te rm ine wh e the r O rs on sh ou ld p le a d guil ty to forg ery . Orson asse rts that Har ris did not perfor

m this additi onal investig ation beca use, if he ha d,His ar gu m ent rests upon the assertion that he wa s an authorized user of the a ccount on 2 which he intende d the che ck in question to be dra fted and that he did not know at the time he cashe d the c he c k th a t th e a c c ount h a d b e e n c los e d b y his mot he r. On a

pp e a l, O rs on

c ite s T e xas c a se s, i n cl u d i n g Gr e e n v . S

tat e , 761 S.W. 2d

82 4 ( Te x. Ap p. —D a lla s 1 98 8, no pe t.) ; Du nla p v . S tat e , 332 S.W. 2d 72 7 ( Te x. Cr im. Ap p. 19 60 ); Car ru th & W hit e v . S tat e , 762 S.W .2d 364 (Tex. App.—For t Worth 1988, no pet.); and Sm ith v . S tat e , 379 S.W .2d 326 (Tex. Crim. App. 1964) , which he a rg ues support his positi on that he did not have a n “intent to defr aud.” 5 he w o u ld h a v e d is c o v e r e d th a t O r s o n h a d c o mm itte d th e f t, a mi s d e me an o r , n o t f

o r g ery . As

2 evidenc e of trial counsel’s alleg ed fa ilure to investigate, Orson points to testimony obtained at the he ari ngon

the mot io n for new tr ia l in wh ic h H arr is s ta te d th a t, a lth ou g h h e ha d d isc us se d w ith Orson’s mother t h e fa ct t hat the che ck in question was dr awn on a n acc ount of which he was a n
a uth or ize d u se r, he ha d n ot r e se arc he d th e law i nit ia lly to de te rm ine if the fa c ts of the pa rt ic ula r c a se
s a t i s f i e d t h e e l e m e n t s o f

f o r g e r y. Be cause the decision to ple ad g uilty is the persona l de cision of the ac cused, Jack son
v . S tat e , 7 66 S.W. 2d

50 4, 50 8 ( Te x. Cr im. Ap p. 19 85 ), the du ty of c ouns e l w he n a

ple a of g uil ty

is enter ed is to asce rtain whe ther the plea is be ing enter ed knowing ly and voluntarily

. Bu tle r v . S tat e , 499 S.W .2d 136, 139 (Tex. Crim. App. 1973). When a defenda nt enter s a guilty plea knowing ly and voluntarily , “counse l need not under take the sa

me mag nitude of indepe ndent fa ctual investig ation . . . as would be r equire d in a conteste d proce eding .” V a l l e v . Stat e , 96 3 S. W. 2 d 9 0 4 , 9 1 0 ( T e x. Ap p . — T exarkana

1998, pet. re f’d) . Although “ [c] ounsel is require d to determine w hether any defe nses to the commission of the crime ma y exis t so couns el m ay p ro t ect the client’s rig hts, . . . when no possible def

enses a ppear , counsel is not require d to pursue the investig ation to the extent he or she would to prepa

re f or a tria l.” Toupal , 926 S.W .2d at 608.Har ris testified that his telephone r ecor ds show 27 phone calls made between himself a nd 3 Orson. Orson’s pr ior criminal re cord, a s admitted by Orson at the hearing on the motion for new 4 trial, includes a c onviction of possession of coc aine, a conviction of attempted forg ery , and a c on vic tio n o f f

or g e ry . T he fo rg e ry c on vic tio n, a c c or din g to O rs on , a ro se un de r e sse nti a lly

the same set of cir cumstance s as this present c ase. In t h at ca s e, after a ppare ntly paying r estitution for the chec k, Orson wa s g iven a punishment that wa s reduc ed to a misdemea nor level. The State argues he re that O rs on

wa s h op ingfo r a

sim ila r p un ish me nt i n th e pr e se nt c a se , an d th a t hi s p ro ble m is wi th his se nte nc e , n ot t

he vo lun tari ne ss o f h is p le a or the e ff e c tiv e ne ss o f h is c ouns e l. 6 W i t h re s pect to the investig ation perf ormed by trial counsel, Ha

rris testified at the he ari ngon

the mot ion

fo r n e w tri a l th a t he me t w ithOr so n at le a st f our t ime s and

that he sp ok e wi th him severa l times by

telephone. He f

urther testified that he met with the prose cutor in this case at 3 least three ti me s , obtained “a ll but open file” discove ry , and also obtaine d plea r ecommendations that
wer e re jected by Orson. Ha

rris stated that he had aske d Orson to compose a nd send to him a written statement of what he thoug ht transpired in respe ct to the alleg ed for g ery , and that Or son had in fac t sent him a written stateme nt. Harr is also spoke with Orson’s mother about the fa cts surrounding the
c a se . I n his te sti mony , Ha rr is state d that the inf

or ma tio n he ha d g a the re d a s a re su lt o f t he se e ff or ts “took some sorting out,” but he conc luded that Orson ha d fabr icated a s er i es of checks, that the business named on the c hecks did not exist, and that he had take n them to differ ent check ca shing org anizations and reque sted they cash the m. Harr is further te stified that he advised Orson that Or son ha d a ri g ht t o ta

ke his c a se to t

ri a l, bu t Or so n tol d him that he ha d a pr ior c ri min a l r e c or d a nd “ did not want t o go t h at ro u te.” Even a fter the October hear ing in whic h the first g uilty plea wa s 4 withdrawn, it se emed clea r to H arr is f

rom conver sations he had had with O rson afte r the hea ring that his c lie nt h a d n o d e sir e to g o to tr ia l. A s H arr is s ta te d a t th e he ari ngon

the mot ion

fo r n e w tri a l:7

Mr . O rs on

g a ve me the imp re ssi on . . . th a t he did no t w ant t o g o thro ug h a

jur y tr ia l, he wa s w ill ingto p le a d. He wa nte d to pr oc e e d on wi th the punis hme nt ty pe tr ia l to arr ive at that. And a g ain, provided me , in fac t, all the way back to the October date, he provided me with ve rification of his e mploy ment and information co n ce rning Scope Mi n is tr ie s , a ll o f w h ic h Ic o n s id e r e d

to b e p u n is h me n t i n f

o r mation. A n o th e r

—th e r e w a s p r o v id e d to me e ar ly in Ju ly w a s a ju d g me n t s e n te n c e out of Lubbock County

and that judg ment sent en ce ref lects that Mr. Or son had pled on forg ery , forg ery

of a f inancial instrument . .

. . [H] e sent me those pa pers unde r the hope I think that he would arr ive at the same or similar sentenc e in B ell County . And it v e ry c le arl y say s th a t he wa s c on vic te d o f a fo rg e ry of a fi na nc ia l in str ume nt.
Gi ve n th is e vid e nc e , w e c ann ot s ay that, b y th e ti me Orsone xpre sse d h is d e sir e to enter a g uilty

plea at the November

hear ing, de fense counsel ha d not gathere d enoug h information to make a rea sonable judgme nt that the re wer e no available defe nses and that no f urther inve stigation
was ne cessa

ry . We ag ree with the State that the ef fec tiveness of Ha

rris’s investigation m ust be analy zed with the desire of

Orson to plead guilty

in mind. Moreove r, Orson has not demonstrate d that, h a d H arr is d on e a

be tte r j ob inv e sti g a tin g the fa c ts a nd the law, Ha

rr is wo uld have c ha

ng e d h is
re c omm e nd a tio n a s to the ple a , a nd the ou tc ome a t tr ia l w ou ld h a ve be e n dif fe re nt. I n r e sp on se to Orson’s a rg ument that, if he c ommitt ed any offe nse, it was thef

t, not f org ery , we note that there a re still signific ant questions of fa ct as to whether the crime of forg ery was commit ted t hat would have had to be de cided at trial. Ba sed on the fa cts of the c as e as u n d er stood by Har ris and on Or son’s desire not to g o befor e a jur y , Har ris could re asonably

have a dvised Orson that a g uilty plea to the court provide d the best possibilit y for r ece iving a lesser punishment. Thus, we f ind that counsel’s
re pr e se ntatio n in

thi s c a se did

no t f a ll b e low an o bje c tiv e sta

nd ard of re a so na ble ne ss. Ev e n if the re pr e se ntatio n f

e ll b e low an o bje c tive st and ard

of re a so na ble ne ss, howeve r, Orson ha s neither alleg ed on appea l nor shown bey ond a re asonable probability that, wer e it not for counsel’s error s, he would not have pleaded guilty to the offense of forg ery and would have8

insisted on g oing to tr ial. Toupal , 926 S.W .2d at 608. The only evidenc e on re cord w e have found of Or so n’ s d e sir e s r e g ard inga tr ia l is the te sti mony

of fe re d b y Ha rr is, pr e vio us ly qu ot e d in thi s opinion, that Orson wanted to avoid trial. Be cause Orson fails to de monstrate that he would have insisted on goingto tr i al h ad h e bee n better infor med about the a

pplication of the for g ery

statute, Orson fa ils to m eet his burde n to prove pre judice. Hi ll v . Lo c k

ha rt , 474 U.S. at 60. We note that he wa s p ro pe rl y

a dmo nis he d p ri or

to h is p le a

a t th e No ve mb er hear in g, and that he su

bs e qu e ntl y testified at the he ar i n g o n t he motion for new trial that he unde rstood what he w as doing and wa s mentally competent at the time he enter ed his guilty plea. In examining the re cord a s a whole, w e find that Orson fully

understood the c onsequenc es of his g uilty plea a nd enter ed it knowing ly

and voluntarily

. Ma rti ne

z v . S tat e , 981 S.W .2d 195, 197 (Tex. Crim. App. 1998).

CO NC LU SION We conclude that Orson enter ed his plea of g uilty voluntarily

and knowing ly , and that his trial counsel’s a l l ege d fa ilure to investigate the fa cts and c ircumstance s leading to the forg ery ind ic tme nt d id n ot c on sti tut e ine ff e c tiv e a ssi sta

nc e . We thu s a ff

ir m th e jud g me nt of the tr ia l c ourt
.

__________________________________________ Be a Ann Smith, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pury ear Affir med Filed: F ebrua

ry 17, 2005 Do No t Pu

bli sh