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Opinion filed December 21, 2006
In The
Eleventh Court of Appeals
__________
Nos. 11-06-00173-CR & 11-06-00174-CR
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ANTHONY AUSTIN METTS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause Nos. CR-29,169-A & CR-29,170-A
O P I N I O N
These are appeals pursuant to Tex. R. App. P. 31. In each case, the trial court denied the petition for writ of habeas corpus. We affirm.
Anthony Austin Metts was indicted for two offenses of sexual assault of a child under the age of seventeen. In each case, appellant entered a plea of guilty. Pursuant to the plea bargain agreements, the trial court deferred the adjudication of appellant=s guilt in each case and placed him on community supervision for ten years. In Cause No. 11-06-00173-CR, the trial court also imposed a fine of $2,500. Three months later, the State filed motions to revoke the community supervision and to adjudicate guilt in each case. Appellant entered pleas of true to the State=s allegations. Pursuant to the plea bargain agreements, the trial court entered orders further deferring the adjudication of guilt and modifying the terms and conditions of appellant=s community supervision including deleting the fine imposed in Cause No. 11-06-00173-CR. Appellant later filed petitions for pre-conviction writs of habeas corpus pursuant to Tex. Code Crim. Pro. Ann. art. 11.072 (Vernon 2005). The trial court denied both petitions, and appellant perfected these appeals.
On appeal, appellant contends that he received Aprejudicial representation during the plea process.@ Appellant attacks his original guilty pleas on the grounds that, in each case, trial counsel did not sufficiently pursue the motion to suppress and that trial counsel erroneously advised appellant and his family concerning a possible reduction in the amount of time appellant would be on deferred adjudication community supervision and concerning his sentence if he did not accept the plea bargain. Appellant contends that, in each case, he would not have entered his plea of guilty but for trial counsel=s erroneous advice concerning the motion to suppress and punishment.
The Court of Criminal Appeals recently addressed a pre-conviction habeas challenge to an original guilty plea in Kniatt v. State, No. PD-0323-05, 2006 WL 1710881, *6 (Tex. Crim. App. June 20, 2006), and stated:
An applicant seeking habeas corpus relief on the basis of an involuntary guilty plea must prove his claim by a preponderance of the evidence. Ex parte Morrow, 952 S.W.2d 530, 535 (Tex. Crim. App. 1997). . . . An appellate court reviewing a trial court's ruling on a habeas claim must review the record evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003).
The record reflects that the Midland Police Department was investigating the illegal sale of items from the police department=s property room. During this investigation, the police received information that appellant might have purchased narcotics from someone who ran the property room. The information also indicated that appellant might be involved with underage females.
As part of the ongoing property room theft investigation, Texas Ranger Don Williams went with Midland Police Lieutenant Cherry to Camp Longhorn near Burnet where appellant was working as a counselor for the summer. Ranger Williams testified that he told appellant that Athere were some things@ happening in Midland that they wanted to talk to him about. Ranger Williams asked appellant to come with the two officers to the Burnet County Sheriff=s Department. Ranger Williams testified that appellant agreed and went voluntarily. Prior to contacting appellant, Ranger Williams was aware of one allegation of sexual assault involving appellant, was aware that appellant had been arrested for possession of marihuana a few weeks before, was aware that appellant had had a fifteen- year-old girl with him at the time of that arrest, and was aware that appellant Aliked to play like he was a police officer.@
Ranger Williams stated that, before talking with appellant at the sheriff=s department, he told appellant that he was free to leave at anytime and that someone would give him a ride back to the camp. Ranger Williams also repeated this statement to appellant several times during the interview. No Miranda[1] warnings were given.
Ranger Williams testified that appellant was very cooperative, that appellant=s body language was Avery comfortable,@ that appellant Aactually seemed like he was enjoying it,@ and that appellant assisted in the preparation of his statement by pointing out spelling and grammatical errors. Appellant provided information about various drug dealers in Midland, and he understood the process of giving his statement.
Appellant=s trial counsel testified that he had written a letter six weeks before the plea hearing stating that, if the adjudication of appellant=s guilt was deferred, appellant might be able to request release from community supervision after three and one-half to four years and that, if appellant went to trial on all three charges, he would be facing a mandatory life sentence. Counsel further stated that he met repeatedly with appellant and appellant=s family after the letter was sent and before the plea hearing and explained that, if appellant was required to register as a sex offender, he could not be released from community supervision early. Counsel stated that he discussed at length with appellant and appellant=s family the risks involved with pursuing the motions to suppress appellant=s statement. Counsel described how the State=s offer of deferred adjudication would be withdrawn if the motions to suppress were pursued and detailed his analysis of the legal issues involved with the motions to suppress. Counsel stated that he had Avery serious discussions -- extremely serious@ discussions -- with appellant and appellant=s father about the consequences of pursuing the motions to suppress and of accepting the plea agreements. They had Amany meetings@ and Amany discussions.@ Counsel testified that everyone understood the situation and that no one told him that appellant wanted to go to trial. Counsel stated that his statement in the letter concerning the mandatory life sentence was not a correct statement of the applicable law and that for the two to three weeks prior to the plea hearing there was no mention or discussion of a mandatory life sentence. Counsel unequivocally stated that the Awhole key@ to deciding the strategy for appellant=s three cases was the chance of winning the motions to suppress (which Awas not very good@) balanced against Athrowing away a deferred adjudication chance@ in each of appellant=s cases.
Appellant testified that Ranger Williams told him that he needed to go with the officers and that they had some questions that he needed to answer. Appellant stated that, even though the officers did not pull their guns, grab him, or put handcuffs on him, he did not think that he had any other choice but to go with the officers. The officers asked about the evidence missing from the property room and about his sexual activity with underage girls. Appellant stated that the words in his statement were already typed into the computer when he saw the screen and that he was only asked to check the statement for any misspelled names. Appellant further testified that he went willingly with the officers, that they told him a Acouple of times@ that he was free to leave, that he had had a chance to read through the statement, and that Anothing in the statement was incorrect.@
Appellant testified that, if he had known at the time of the plea hearing what he knew at the time of the habeas hearing, he would have gone to trial on all three charges rather than accept the plea agreements of deferred adjudication on two charges and the dismissal of the third. Appellant acknowledged that his trial counsel had worked hard to get his adjudication deferred, that at the time of the plea negotiations that is what he wanted, and that he was satisfied at that time with the deferred adjudication. However, appellant testified that trial counsel Adid not fully explain@ that the deferred adjudications would not be Aoff@ his record. Appellant stated that he started having trouble with his situation A[t]he minute [the trial judge] hit his gavel on the wooden block.@ Appellant testified that, while his trial counsel had explained the legal concept of stacking sentences as it applied to his three charges, Ano one@ informed him of the punishment range for each charge. He had relied on trial counsel=s representation that, if he went to trial, he was facing a mandatory life sentence when he entered his pleas. Even though the trial court admonished him at the plea hearing that the range of punishment was confinement for a term of not more than twenty and not less than two years, appellant stated at the habeas hearing that he did not question the range of punishment or alleged mandatory life sentence.
Appellant also testified that he had no reason to believe that his trial counsel was not telling the truth when counsel said that there was no future in pursuing the suppression matter. Appellant stated, AIf he had given me the comfort of knowing, and if he had felt strongly that that suppression could have happened, I would have entered a plea of not guilty.@ However, appellant acknowledged that that was not the situation. Appellant also stated that, approximately three weeks after he gave his statement, he was arrested and Akicked out@ of Camp Longhorn.
Appellant is in essence challenging the effectiveness of his trial counsel. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, 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 probability that the result would have been different but for counsel=s errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).
The record does not support appellant=s contentions that the trial court abused its discretion by denying the writs for habeas corpus. The record does support the trial court=s conclusions that appellant=s contentions that his trial counsel=s representation concerning the law applicable to the circumstances surrounding his statement, concerning not pursuing the suppression issue and accepting the plea bargain offers, and concerning the letter with erroneous statements as to punishment were without merit. The record does not reflect that counsel=s representation was not within the range of competence demanded of attorneys in criminal cases or that there is a reasonable probability that, but for counsel=s error, appellant would have not pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). The record also supports the trial court=s conclusion that appellant failed to establish any prejudice. Appellant=s issues are overruled.
The orders of the trial court are affirmed.
PER CURIAM
December 21, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.