Opinion issued September 23, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00928-CR
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OSCAR NATHANIEL SCOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1208957
MEMORANDUM OPINION
A jury found appellant, Oscar Nathaniel Scott, guilty of the offense of possession of cocaine weighing less than one gram.[1] After finding true the allegations in two enhancement paragraphs that appellant had previously been convicted of two felony offenses, the trial court assessed his punishment at confinement for five years. In two points of error, appellant contends that the trial court erred in denying his motion for new trial in which he asserted that he had received ineffective assistance of counsel.
We affirm.
Background
Houston Police Department (“HPD”) Narcotics Officer D. Bocanegra testified that on March 25, 2009, she was working undercover to set up a “street buy” of “crack cocaine.” As she was driving, she saw appellant walking down the sidewalk, and she waved to and nodded at him. After appellant acknowledged her, she stopped her car. Appellant approached Bocanegra and asked, “What are you looking for?,” to which she replied, “I’m looking to score a 20.” Bocanegra explained that a “20” is about “$20 worth of crack cocaine,” an amount the size of “an eraser on a pencil.” Appellant got into Bocanegra’s car, and, after she had driven for about one block, he instructed her to pull over. Appellant then got out of the car, told Bocanegra to “make the block,” and said that he “was going to get it from a group of guys in the area by the time [she returned].”
When she returned, appellant delivered the crack cocaine to Bocanegra’s partner, Officer R. Ybanez, who handed it to Bocanegra, and Bocanegra then paid appellant nine dollars. As she drove away, Bocanegra called for patrol officers in marked patrol cars to arrest appellant.
HPD Patrol Officer G. Young testified that he responded to Officer Bocanegra’s call and arrested appellant. Young searched appellant and found in his clothing “two rocks of crack cocaine,” a “crack pipe,” and nine dollars. HPD Crime Laboratory Analyst Ahtavea Barker testified that laboratory testing confirmed that the two “rocks” were in fact cocaine in the amount of .12 grams and the “crack pipe” contained “trace” amounts of cocaine.
After trial, appellant filed a motion for new trial in which he argued that his trial counsel provided ineffective assistance because trial counsel had “not fully explain[ed to appellant] the law of entrapment and search and seizure,” they “did not have a very good attorney client relationship,” and trial counsel “did not explain [to appellant] how and why the defense of entrapment was not a viable defense in his case or how probable cause to arrest in this case existed despite the district attorney’s decision to charge [appellant] with delivery of a controlled substance.” Appellant asserted that, “had he properly understood these concepts,” he “would not have insisted on his right to a jury [trial] and would have accepted the plea offer of time served.” At the hearing on his motion, the trial court received as evidence appellant’s affidavit and the affidavit of his trial counsel. It then denied the motion.
Ineffective Assistance of Counsel
In his first and second points of error, appellant argues that the trial court erred in denying his motion for new trial because his trial counsel did not “fully explain [to him] the applicable legal principles . . . so that [he] could make an intelligent and informed choice” regarding the State’s plea offer.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland generally requires a two-step analysis in which an appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Id. at 687–94, 104 S. Ct. 2064–2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813. The record must affirmatively support the alleged ineffectiveness. Id.
Generally, we review a trial court’s denial of a motion for a new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). However, the United States Supreme Court has explicitly held that “both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” Strickland, 466 U.S. at 698, 104 S. Ct. at 2070; see also Williams v. Taylor, 529 U.S. 362, 419, 120 S. Ct. 1495, 1526 (2000) (Rehnquist, C.J., concurring) (“While the determination of ‘prejudice’ in the legal sense may be a question of law, the subsidiary inquiries are heavily factbound.”). Accordingly, “where the trial court ‘is not in an appreciably better position’ than the appellate court to decide the issue, the appellate court may independently determine the issue while affording deference to the trial court’s findings on subsidiary factual questions.” Villareal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J., concurring) (citing Miller v. Fenton, 474 U.S. 104, 110–17, 106 S. Ct. 445, 450–53 (1985)); see Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999). Yet, the trial court remains in the best position to “evaluate the credibility” of the witnesses and resolve such conflicts. Kober, 988 S.W.2d at 233; see Strickland, 466 U.S. at 698, 104 S. Ct. at 2070. The trial court can choose to believe or disbelieve all or any part of the witnesses’ testimony. See Johnson, 169 S.W.3d at 239–40; Kober, 988 S.W.2d at 233.
Appellant’s ineffective assistance of counsel complaint primarily arises out of the fact that he rejected a “time served” plea offer by the State, went to trial, the jury found him guilty, and the court assessed his punishment at confinement for five years. He asserts that trial counsel “dismissed his questions” about the defense of entrapment and trial counsel’s explanation “in court on the day of trial” did not allow him “to fully comprehend the information and ask further questions” in deciding whether to accept or reject the plea offer. Appellant also asserts that trial counsel, in his affidavit testimony, made a “false statement” when testifying that “the issue of entrapment [] did not materialize until the morning of [appellant’s] trial.” He notes that prior to trial, trial counsel requested a mental health evaluation, stating that appellant “does not understand how entrapment is not applicable to his case.” Appellant argues that because this “undermines [trial counsel’s] entire affidavit, this Court should not rely on counsel’s statements that he explained the law of entrapment to [a]ppellant in great detail.” He further asserts that he believed that if the State refused the “delivery charge,” all other charges should have been dismissed, and his trial counsel “did not explain to him how the law concerning probable cause would allow the officers to arrest him and then search him despite the district attorney’s office deciding later to only accept the possession charge.”
In his affidavit attached to his new trial motion, appellant testified that he did not understand the concepts of entrapment and probable cause. He believed that if the State “refused charges on the delivery that everything should have been thrown out.” Appellant stated that his trial counsel “did not communicate” with him, “never came to the jail to speak” with him, talked to him for only a few minutes at a time while appellant was in the “holdover cell” during his appearances in the trial court, “dismissed” his questions about the entrapment defense, and “did not explain how the system worked or how probable cause would allow the officers to arrest [him] and then search [him] even if the [State] chose to accept charges on the lesser charge.” If trial counsel had “communicated better” and explained to him how the entrapment defense worked, that it “was not a good defense,” and that the officers had probable cause to arrest and search him, appellant would have accepted the State’s offer of time served and “would not have insisted on going to a jury trial.”
In his affidavit, appellant’s trial counsel testified that appellant was a “very difficult client” and his “thought processes were such that [trial counsel] requested a mental health evaluation,” which “came back competent.” Appellant was “obsessed with several issues” and “could not understand why the prosecutors were not charging him with delivery of a control[led] substance.” Trial counsel stated that “the law of entrapment was explained to [appellant] in great detail.” Appellant “wanted his driver’s license reinstated” and explained to three different judges that “[i]f his driver’s license was not part of a plea agreement, he was going to trial.” The three judges attempted to explain to appellant “the reason behind the [S]tate charging [him] with possession of a controlled substance” and “the ramification[s] of his going to trial with his enhanced indictment.” Appellant refused the State’s offer of “time served” on the day of trial because “his driver’s license would be suspended.”
A failure by trial counsel to advise a criminal defendant about legal concepts that may affect his decision to accept or reject a plea offer can constitute deficient performance. See Ex parte Battle, 817 S.W.2d 81, 84 (Tex. Crim. App. 1991); Ex parte Gallegos, 511 S.W.2d 510, 513 (Tex. Crim. App. 1979). Here, however, the affidavit testimony of appellant and his trial counsel conflict regarding trial counsel’s discussions with appellant about the entrapment defense and probable cause and why appellant rejected the State’s plea offer of time served. The trial court, as fact finder, was the sole judge of the credibility of the testimony of appellant and his trial counsel and the weight to be given to their testimony, and it could have rejected appellant’s testimony and accepted that of his trial counsel. See Johnson, 169 S.W.3d at 239–40; Kober, 988 S.W.2d at 233. Consequently, the trial court could have concluded that trial counsel did discuss with appellant the inapplicability of the entrapment defense, the law regarding probable cause, and how the State could abandon the delivery charge in favor of the possession charge.
The trial court could have further concluded that appellant was a “difficult” client and trial counsel, recognizing the strained relationship between himself and appellant and appellant’s apparent inability to understand that “entrapment [was] not applicable to his case,” properly sought a mental health evaluation of appellant’s competency and allowed three judges to explain the entrapment, probable cause, and charging issues to appellant. The trial court could have further concluded that appellant, who was focused on getting his driver’s license reinstated, would not accept anyone’s explanations about why he should not opt to go to trial.
In sum, the trial court could have reasonably concluded that appellant rejected the State’s plea offer, not because trial counsel failed to adequately explain pertinent legal concepts to him, but because the State would not guarantee that it would reinstate his driver’s license if he accepted the plea. Accordingly, we hold that trial counsel’s performance did not fall below an objective standard of reasonableness and the trial court did not err in denying appellant’s new trial motion. See Strickland, 466 U.S. at 687–94, 104 S. Ct. 2064–2068; Thompson, 9 S.W.3d at 813.
We overrule appellant’s first and second points of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (b) (Vernon 2010).