NO. 07-12-00177-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 16, 2012
_____________________________
KELLY DON FARRAR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 21,964-C; HONORABLE ANA ESTEVEZ, PRESIDING
_____________________________
Memorandum Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Kelly Don Farrar pled guilty in 2011 to four counts of
endangering a child and was sentenced to twenty-four months confinement and
a $500 fine on each count, suspended for three years. On October 25, 2011,
the State filed a motion to revoke appellant's probation. After a hearing,
the court found appellant had violated his probation and sentenced him to
his original punishment. In challenging those convictions, he claims he
received ineffective assistance of counsel. We disagree and affirm the
judgments.
It is appellant's burden to prove that his counsel was deficient and
that the deficiency caused prejudice. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 286 S.W.3d
333, 340 (Tex. Crim. App. 2009). Furthermore, he must do so by a
preponderance of the evidence, Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999), and there is a strong presumption that counsel's conduct
falls within a wide range of reasonably professional assistance. Robertson
v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006).
Here, appellant alleged that counsel was ineffective for failing to
convey to the State his acceptance of a plea offer prior to the revocation
proceeding. The matter was addressed via a hearing upon defense counsel's
motion to withdraw. According to appellant's own testimony, he was unhappy
with his counsel because the latter allegedly failed to accept a plea offer
of fifteen months. The fifteen-month offer had been relayed from defense
counsel to appellant, and appellant responded by directing his attorney to
see if he could "get a lower offer." Counsel did as directed but met with
no success. Instead, he was told by the Randall County District Attorney
that the State did not want "to proceed with anything here in Randall
County until Lubbock County messed with their charges." Thereafter,
defense counsel told appellant that no lower offer from the State was
forthcoming, to which appellant supposedly replied that: "if fifteen months
was the best [he] was going to get, that [he] would rather take that
than... bring it to trial and risk getting twenty-four months."
Defense counsel then inquired of the State, shortly before the
hearing, whether the fifteen-month offer stood, and the State responded no.
Instead, it offered appellant a jail term of sixteen months. The offer
was rejected, and appellant opted to proceed with the revocation hearing.
In view of the foregoing, we make the following observations. The
first pertains to the harm or prejudice aspect of the Strickland test. The
harm alluded to by appellant involved his having received the maximum
sentence of twenty-four months once the decision to revoke probation was
made. This sentence is attributable to defense counsel, or so the argument
goes. Yet, he says nothing about his rejection of the sixteen-month offer
made by the State at the hearing. Instead of accepting it and thereby
avoiding the "risk [of] getting twenty-four months" by submitting to
"trial," he decided to submit to trial. Thus, it cannot be said that the
conduct attributed to his attorney resulted in the sentence ultimately
levied.
Our second observation is the tenor of appellant's own testimony. He
posits before us that his testimony was the only evidence before the trial
court since his counsel was never sworn as a witness. Assuming, arguendo,
that the proposition is correct, it does him no good.[1] This is so
because appellant's own words authorized the trial court to rule as it did.
Again, he testified that he 1) informed counsel to inquire into the
possibility of a lower offer, and 2) had been told both that no
"counteroffer" was forthcoming and that the State would not proceed with
the Randall County charges until those in Lubbock County were addressed.
The State choosing not to proceed with the Randall County charges hardly
connotes that the fifteen-month offer remained available when appellant
deigned to accept it. Rather, it suggests the contrary. And, no one can
dispute that legal counsel is forbidden from accepting a plea offer for his
client unless and until the client actually accepts it. So, if there was
no offer that could be accepted when appellant finally decided to accept
it, counsel's supposed failure to accept the non-existing offer is not
improper conduct.
Third, as factfinder, the trial court was free to assess appellant's
credibility when making its decision. See Mazratian v. State, 961 S.W.2d
353, 358 (Tex. App.-Houston [1st Dist.] 1997, no pet.) (stating that a
trial court possesses broad discretion in assessing the credibility of the
witnesses and in weighing the evidence). Because of that, it could well
have discredited appellant's testimony that he did not reject the fifteen-
month offer.
Appellant's issue is overruled, and the judgments are affirmed.
Brian Quinn
Chief Justice
Do not publish.
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[1]We think it appropriate to extend appellant's premise to include
any comments uttered by the prosecutor as well for they too were unsworn.
It would seem inconsistent to consider unsworn comments from the prosecutor
when we supposedly must ignore like comments from defense counsel.