NO. 07-04-0572-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 5, 2006
______________________________
GEARY BRIAN BROGDEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 49,464-A; HON. HAL MINER, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Geary Brian Brogden, appellant, appeals his conviction for assaulting a family
member and causing bodily injury. His sole issue involves the voluntariness of his guilty
plea. Purportedly, it was involuntary because his trial counsel failed to interview appellant’s
wife who was also the victim of the assault. She allegedly would have testified that she
favored leniency. Furthermore, the complaint was raised via a motion for new trial, which
motion the trial court denied. We affirm the judgment.
According to the record, appellant was charged with assault on a family member
and causing bodily injury. The parties reached an agreement wherein appellant agreed
to plead guilty in exchange for the State recommending a prison term of five years. After
the trial court held a hearing wherein appellant pled guilty and it found the plea to be
knowing and voluntary, sentence was levied in accordance with the agreement.
Subsequently, appellant filed a motion for new trial, alleging that trial counsel was
ineffective because he failed to interview the complaining witness, i.e. appellant’s wife.
The trial court convened a hearing on that motion and subsequently denied it. Yet,
permission was granted appellant to appeal those issues raised in the motion. And, as
previously mentioned, the sole issue before us involves the voluntariness of the plea due
to counsel’s supposed ineffective assistance and the trial court’s refusal to grant a new
trial. We overrule the issue for several reasons.
First, the record discloses that appellant was fully admonished in writing prior to
pleading guilty. Appellant further represented to the trial court that, among other things,
1) he understood the effect of his plea, 2) his plea was “freely, voluntarily, and knowingly
entered,” and 3) his trial counsel “provided fully effective and competent representation.”
These representations of appellant belie the argument he now proffers. Moreover, a
finding that a defendant was duly admonished creates a prima facie showing that a guilty
plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.
Crim. App. 1998).
Second, though the victim testified at the hearing on appellant’s motion for new trial
that she wanted her husband to get medical help, did not want anything “terrible” to happen
to him, and wanted appellant to avoid going to prison, she nonetheless said he needed to
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be held accountable. Furthermore, the district attorney testified that appellant’s wife was
informed of the plea bargain (which included the five year prison sentence), uttered no
objections to it, and was satisfied with it. So too did the victim refuse to return the impact
statement given her. Therein, she was afforded the opportunity to reveal her desires
regarding the punishment that should be levied upon her husband; yet, she opted to forego
that chance. Trial counsel also testified and denied having any record that indicated
appellant’s wife attempted to call him, though she testified otherwise. So too did trial
counsel state that he asked appellant to see if the victim would contact him given that he
purportedly was in constant communication and living with her; yet, appellant never
informed counsel that she was attempting to contact him. And, to the extent that counsel
thought the assault victim’s viewpoint was of import, he deemed it a better tack to allow her
to initially contact him. If he attempted to make the initial contact, he “was afraid [he] would
scare her off, if nothing else.” Finally, from the information he garnered via the district
attorney, trial counsel considered the victim’s views regarding punishment to be less than
certain. While she may not have wanted him to go to prison, she did not “really want him
to be on probation either,” he uttered.
Simply put, whether the victim would have testified favorably for appellant was an
issue of fact. Though she said that she wanted her husband to avoid prison, other
evidence disclosed that she was quite “satisfied” with him receiving the prison term offered
in the plea agreement. Thus, a question of fact existed involving whether appellant
suffered any prejudice due to his counsel’s decision to have the victim contact him. See
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (requiring the complainant to
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prove that the supposedly deficient performance prejudiced him). And, the trial court was
free to resolve it against appellant.
Next, while it is true that defense counsel has a duty to investigate, McFarland v.
State, 928 S.W.2d 482, 501 (Tex. Crim. App.1996), nowhere does appellant argue, much
less show, that it falls outside the realm of effective trial strategy to have the victim of family
violence or an assault initially contact defense counsel as opposed to vice versa. We can
see the need for defense counsel to tread cautiously when engaging in pretrial contact with
such a person. The latter may well be on an emotional or psychological precipice and,
uninvited contact from the assailant’s representative in order to curry favor from the victim
may well trigger adverse, if not criminal, backlash. See Tex. Pen. Code Ann. §36.05
(Vernon 2003) (defining the crime of witness tampering). Thus, the trial court could well
have determined that counsel’s tack was indeed acceptable trial strategy, and that despite
her intimations otherwise, the victim never contacted trial counsel. See Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding that the appellant must rebut the
presumption that his counsel’s actions were legitimate trial strategy).
In sum, the trial court did not abuse its discretion in overruling the motion for new
trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding that the
denial of a motion for new trial is reviewed under the standard of abused discretion).
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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