Opinion filed August 22, 2013



### In The 

# Eleventh Court of Appeals

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__________ SUSAN LYNN FARMILO A/K/A SUSAN LYNN FARMILLO , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 1 0 4 th District Court Taylor County , Texas
Trial Court Cause No s . 17625B, 18050B, 18176B, & 18182B

M E M O R A N D U M O P I N I O N Appellant, Susan Lynn Farmilo a/k/a Susan Lynn Farmillo
, entered an open plea of guilty before the trial court to four offenses: felony driving while
intoxicated
, with a plea of true to one enhancement allegation; theft, with two prior theft convictions; felony driving while intoxicated, with a plea of true to one2 enhancement allegation; and theft , with two prior theft convictions. The trial court
convicted Appellant of each offense and assessed her punishment at confinement for ten years, confinement for two years in a state jail facility, confinement for fifteen years, and confinement for two years in a state j ail facility , respectively

. The trial court ordered all of the sentences
, except for the fifteen

- year sentence , to

run con currently . The trial court ordered the fifteen

- year sentence to run

con secutively to her sentences in the two theft cases. We affirm. Appellant presents a single issue for review. In her sole issue in ea ch case
, Appellant contends that s he was denied effective assistance of counsel because her attorneys did not communicate every plea offer in a timely fashion; misinformed her as to material facts regarding the plea offer; and failed to fully inform her of relevant considerations surrounding her open pleas of guilty, including the possibility that her sentences could be ordered to run consecutively. Appellant complains that these errors caused her pleas to be involuntary. 1 In order to determine whether Ap pellant’s trial counsel rendered ineffective assistance, we must first determine whether Appellant has shown that counsel’s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probabili ty that the result would have been
different but for counsel’s errors. Strickland v. Washington , 466 U.S. 668 (1984); Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App. 1999); Hernandez v. State
, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In order to assess counsel’s performance, we must make every effort to eliminate the distorting effects of

1 To be knowing and voluntary, a guilty plea must be made with sufficient awareness of the relevant circumstances and likely consequences. McMann v. Richardson , 397 U.S. 759, 766 (1970). When the record shows that a defendant was properly admonished, it pr esents a prima facie showing that the guilty plea was entered knowingly and voluntarily. Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Ex parte Gibauitch , 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). The burden then shifts to the defendan t to establish that she did not understand the consequences of her plea. Martinez , 981 S.W.2d at 197; Gibauitch , 688 S.W.2d at 871. The record shows that Appellant was properly admonished by the trial court prior to accepting her pleas.3 hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumpt ion that counsel’s conduct fell within the wide range of reasonable professional assistance,
and A ppellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State , 813 S.W.2d 503, 508

– 09 (Tex. Crim. App. 1991). To defeat the presumption of reasonable professional assistance, the record must affirmatively demonstrate the
ineffectiveness. Thompson v. State , 9 S.W.3d 808, 813

– 14 (Tex. Crim. App. 1999). Rarely will the re cord on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of an ineffective assistance
claim. Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To establish prejudice when a defendant is not ma de aware of a plea bargain or rejects a plea bargain due to bad legal advice, the defendant must show the following: ( 1) that

s he would have accepted the earlier offer if counsel had not given ineffective
assistance ; (2) that the prosecution would not have withdrawn the offer; and (3) that the trial court would not have refused to accept the plea bargain. Ex parte Argent , 393 S.W.3d 781, 784 (Tex. Crim. App. 2013) (adopting standard for prejudice set out in Missouri v. Frye , 132 S. Ct. 1399 (2012))

. The record show s that, at the time Appellant entered her pleas of guilty, there were seven cases pending against her. In exchang e for her plea of guilty to the four offenses at issue in this appeal, the State dismissed the remaining three

c as es. Evidence co ncerning the effectiveness of counsel was presented during a hearing on Appellant’s motion s for new trial . O ne of Appellant’s previous attorneys , Bob Lindsey, testified that he had communicated the State’s plea

bargain offers to Appellant but that she did not accept those offers. N otice of one
of the State’s offers was evidence d by a letter to Appellant from Lindsey

. In th e4 letter , Lindsey informed Appellant that the State’s “‘new’ offer is 8 years to do on the DWIs and 2 years to do on 3 of the thefts and the remaining two thefts will be
dismissed.” The assistant district attorney who prosecuted these cases confirmed that a
time

- limited plea offer of confinement for eight years had been made. According to the prosecutor, t here was not a plea offer of seven years in these cases. He testified that, at the time of the hearing in this case, the offer of eight years was “off the table” and that the only offer “on the table” was an open plea to two DWIs and two thefts in exchange for the dismissal o f three enhanced theft charges. The attorney who represented Appellant at the time of her guilty pleas
, Samuel David Mehaffey, testified that he was retained by Appellant shortly before the trial date in this case; that, at that time, a “tentative” offer of seven years had been made by the State; and that he conveyed that offer to Appellant. Mehaffey stated that Appellant retained him because she became unhappy with the

repre sentation of Lindsey, who wanted Appellant to “plea the case.” According to Mehaffey, Ap pellant was aware of the State’s offer but did not want to accept it;
she wan ted probation and “was not going to agree to an amount of TDC time.” Mehaffey told Appellant that he “thought the judge would give her probation even
with the vast amount of cases pending and the fact pattern and the fact that she had been to prison before,” but he also “absolutely” admonished her of her “tremendous” exposure for the charged offenses. Mehaffey testified that he
i nformed Appellant of the range of punishment for her offenses and of the potential pitfalls of entering an open plea. Appellant was facing a seco nd

- degree felony punishment in the DWI cases ; a second

- degree felony carr ie s a potential sentence of confinement for twenty year s plus a fine of $10,000

. See T EX

. P ENAL C ODE A NN

. § 12.33 (West 2011)
, §§ 12.42(a), 49.09(b)(2) (West Supp. 2012 ). According to Mehaffey, Appellant was aware of the possible outcomes.5 Furthermore, the trial court properly admonished Appellant of the ran ge of punishment in each case. Appellant testified that Mehaffey did not communicate an offer of seven years to her. Appellant also testified that she was unaware that her sentences could be stacked. Appellant stated that she would not have entered open pleas of guilty
in these cases if she had known that she could receive a sentence longer than seven or eight years. Appellant admitted, however, that Lindsey had informed her of a plea

- bargain offer of seven years. Appellant said that she was “aware” of that offer
and “never said no to it
, ” but Appellant acknowledged that she “did not accept it. ”
T he trial court denied App ellant’s motions for new trial.
The re is evidence in the record reflecting that Appellant rejected the State’s plea offer , regardles s of whether she thought it was an offer of seven or eight years, and that she had been admonished of the consequences of pleading guilty

. The record does not support Appellant’s contention that counsel failed to timely inform
her of a plea offer or that counsel misinformed her of any material consideration regarding a plea offer or her open pleas. Furthermore, d espite Appellant’s claim that she was unaware that her sentences could be stacked, Mehafffey indicated that he informed Appellant of her tremendo us exposure for the charges against her. We note that the sentences as ordered by the trial court in these cases resulted in a cumulative sentence that was less than the potential sentence for one of her
enhanced DWI s

. T he record does not affirmatively d emonstrate that Appellant’s
counsel failed to fully inform her of the consequences of any plea offer, the consequences of rejecting any plea offer, or the consequences of entering open pleas of guilty

. To defeat the presumption of reasonable professional assistance, the record must affirmatively demonstrate the ineffectiveness. Thompson , 9
S.W.3d at 813

– 14. Based on the record from the hearing on Appellant’s motions for new trial, the trial court could have found that Appellant did not demonstrate6 the following: that counsel failed to inform her of a plea offer, that she reject ed a plea offer due to bad legal advice, that s he would have accepted the e arlier offer
but for counsel’s ineffective assistance
, that the prosecuto r would not have
withdrawn the offer
, and that the trial court would not have refused to accept the plea bargain . Thus, we cannot hold
, based on the record before us, that the performance of Appellant’s attorneys fell below an objectiv e standard of
reasonableness or that Appellant has shown a reasonable probability that the result
would have been different but for her attorneys’ alleged errors

. Appellant’s sole
issue in each case is overruled.
We affirm the judgments of the trial court.

MIKE WILLSON
JUSTICE

August 22, 2013 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Willson, J.