George Gaal v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-08-00382-CR

GEORGE GAAL APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION ON REMAND1

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Appellant George Gaal appeals his felony conviction for driving while

intoxicated (DWI).2 In our prior opinion in this case, we sustained appellant‘s

fourth point, in which he argued that the trial judge should have been recused.

See Gaal v. State, No. 02-08-00382-CR, 2010 WL 323574, at *4 (Tex. App.—

1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West 2011).

1
Fort Worth Jan. 28, 2010) (not designated for publication), rev’d, 332 S.W.3d 448

(Tex. Crim. App. 2011). However, the court of criminal appeals reversed our

decision and remanded the case so that we may consider appellant‘s remaining

points that we did not address in our original opinion. Gaal, 332 S.W.3d at 460.

For the reasons stated below, we overrule those points and affirm the trial court‘s

judgment.

Background Facts

Near midnight on September 23, 2007, Gayle Cook was riding in a pickup

with her husband on Milam Road toward Interstate 35 when she spotted a truck

stopped in the middle of the road and saw appellant on the ground in front of the

truck. It appeared to Cook that appellant‘s truck had hit a guardrail and was

damaged. Cook approached appellant to ask him if he was okay, but appellant

was disoriented and did not appropriately answer Cook‘s questions. Cook and

her husband went to a nearby truck stop and called 911 on her cellular phone,

but while they were doing so, appellant began to drive away.

Cook and her husband followed appellant, who was driving slowly and

swerving. Appellant eventually drove into a ditch, but then he drove back onto

the road very quickly before he pulled into a parking lot and stopped his truck.

Cook had continued her contact with 911, and a Denton police officer eventually

arrived at the parking lot and approached appellant‘s truck. The officer noticed

that appellant had slurred speech, that he smelled like alcohol, and that he had

bloodshot eyes. Another Denton police officer arrived at the parking lot and

2
asked appellant to take a standardized field sobriety test and two

nonstandardized tests, all of which he failed. The officer arrested appellant and

found an empty bottle of Crown Royal and two empty beer bottles in his truck.

In December 2007, a Denton County grand jury indicted appellant for DWI.

The indictment alleged that appellant had two prior DWI convictions. The parties

filed various pretrial documents, and appellant‘s trial began in August 2008.

Appellant initially pled not guilty, but after the jury was selected, appellant

changed his plea to guilty.

The parties presented evidence concerning appellant‘s punishment, and

appellant testified and asked the jury to place him on community supervision.

After the parties presented closing arguments, the jury assessed appellant‘s

punishment at ten years‘ confinement. Appellant filed a motion for new trial, but

the trial court denied the motion. Appellant subsequently filed his notice of

appeal.

The Voluntariness of Appellant’s Guilty Plea and the Trial Court’s
Compliance with Statutorily Required Admonishments

In his first point, appellant contends that his guilty plea is involuntary

because he did not receive proper constitutional or statutory admonishments

when he made the plea. Just before the parties‘ opening statements, in the

presence of the jury, appellant pled guilty.3 The following colloquy then occurred:

3
Appellant also pled true to the indictment‘s paragraphs that concerned his
previous convictions.

3
 THE COURT: All right.

Mr. Gaal, is that your wish, to plead guilty?

DEFENDANT: Yes, Your Honor.

THE COURT: And you are pleading guilty?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Are you pleading guilty because you are guilty
and for no other reason?

DEFENDANT: Yes, Your Honor.

After the State called several witnesses and rested its case, appellant

judicially confessed to DWI, signed plea paperwork, received admonishments

about his constitutional and statutory rights from the trial court, and told the court

that he did not have any questions about the admonishments or his guilty plea.4

He affirmed in writing that he was aware of the consequences of his plea.

He also affirmed that he had waived his rights ―voluntarily, knowingly, and

intelligently.‖ He told the trial court orally that he had discussed the plea

paperwork with his counsel, and his counsel confirmed in writing that he had

consulted appellant about his guilty plea. Appellant orally recognized that he had

waived a jury trial concerning his guilt. The trial court asked him if he needed

―any additional time to speak with [his] attorneys‖ about the plea, and appellant

said, ―No, sir.‖ Despite these facts, appellant asserts that the trial court‘s

4
The plea paperwork recited that appellant was waiving his rights to remain
silent, to confront and cross-examine witnesses, to not incriminate himself, and to
be tried by a jury.

4
admonishments and his waiver of rights were not sufficient because they did not

occur when he pled guilty but instead occurred hours after the plea.

Constitutional admonishments and voluntariness

―Waivers of constitutional rights not only must be voluntary but must be

knowing, intelligent acts done with sufficient awareness of the relevant

circumstances and likely consequences.‖ Brady v. United States, 397 U.S. 742,

748, 90 S. Ct. 1463, 1469 (1970). In appellant‘s argument that he did not receive

timely constitutional admonishments to make him aware of the effects of his

guilty plea, he relies primarily on Boykin v. Alabama, in which the United States

Supreme Court held that when a defendant pleads guilty, the record must

affirmatively disclose that the plea was ―voluntarily and understandingly entered,‖

and that courts may not ―presume a waiver of . . . important [constitutional] rights

from a silent record.‖ 395 U.S. 238, 243–44, 89 S. Ct. 1709, 1712–13 (1969);

see Aguirre-Mata v. State, 125 S.W.3d 473, 475 (Tex. Crim. App. 2003) (―Boykin

did not specifically set out what due process requires to be ‗spread on the record‘

except to say generally that state courts should make sure that a guilty-pleading

defendant ‗has a full understanding of what the plea connotes and of its

consequence.‘‖) (footnote omitted); Fuller v. State, 253 S.W.3d 220, 229 (Tex.

Crim. App. 2008) (relating that Boykin’s requirement of requiring an affirmative

showing of voluntariness protects a defendant‘s right of due process), cert.

denied, 129 S. Ct. 904 (2009). The Court in Boykin recognized three critical

constitutional rights that a guilty plea waives: the privilege against compelled

5
self-incrimination, the right to a trial by jury, and the right to confront one‘s

accusers. 395 U.S. at 243, 89 S. Ct. at 1712.

A few years ago, the court of criminal appeals examined a case in which a

defendant, who had been charged with five counts of aggravated sexual assault,

pled guilty before a jury but did not receive express constitutional

admonishments at the time of the plea (or any time thereafter). See Gardner v.

State, 164 S.W.3d 393, 394 (Tex. Crim. App. 2005).5 The defendant‘s counsel,

however, ―referred to [the defendant‘s] guilty plea several times during the

punishment phase‖ and stressed to the jury throughout various parts of the trial

that the defendant had taken responsibility for the offense. Id. at 395–97.

The jury assessed punishment at thirty-five years‘ confinement on each count.

Id. at 397. The defendant, citing Boykin, complained on appeal about not having

received the admonishments. Id. The court of criminal appeals, held, however,

that the record adequately showed

that appellant understood that he was waiving [his constitutional]
rights when he pled guilty. This may be inferred, in part, from
appellant‘s counsel‘s statements during the punishment phase
mentioning that appellant would testify even though he did not have
to under the Fifth Amendment and that appellant‘s guilty plea saved
the victim from having to testify and saved the jury from the ―grueling
experience‖ of determining appellant‘s guilt.

The voluntary nature of appellant‘s guilty plea is further shown
in the record by the overwhelming evidence that appellant‘s guilty

5
As in this case, the trial court in Gardner ensured at the time of the plea
that the defendant was pleading guilty for no other reason than that he was
guilty. Id.

6
 plea was part of a strategy (which we may also infer was done in
consultation with competent counsel) to persuade the jury to grant
appellant probation. Unlike this case, the record in Boykin was silent
on whether the defendant‘s guilty plea was part of some trial
strategy.

Id. at 399 (citations omitted).

The voluntary nature of appellant‘s guilty plea may likewise be shown by

the record‘s indication that the plea was part of a trial strategy. From the

beginning of his own counsel‘s voir dire, appellant‘s goals were to minimize the

issue of his guilt and to extensively focus on the issue of punishment and the

possibility that the jury would give him a low term of confinement or place him on

community supervision.6 For example, just after appellant‘s guilty plea, during

his counsel‘s opening statement, counsel emphasized that appellant had pled

guilty. Appellant‘s counsel declined to ask any questions of Cook when she

recounted the events that occurred on the night of appellant‘s DWI, and counsel

asked scant questions of the other witnesses who testified about the facts of

appellant‘s offense.7 When appellant testified, he confirmed his guilt, told the jury

that he is an alcoholic and that he views alcohol as a ―demon,‖ expressed that he

is a ―changed person‖ since the time of his offense, and said, ―[W]ell, I need help,

and I feel like the only way that I‘ll be able to get help is probation and to be able

6
During voir dire, appellant‘s counsel asked the jury panel members about
their opinions on the purpose of confinement and conversed with them about
specific attributes of community supervision.
7
We note, therefore, that while appellant later expressly waived his right of
confrontation, he nonetheless had the opportunity to exercise that right at trial.

7
to keep going and doing the things that I‘ve been doing for the last several

months.‖ Finally, during his closing argument, appellant‘s counsel said, ―Now,

[appellant] has come to this court today, and he has admitted he has done this

crime. He‘s taken responsibility . . . .‖

As in Gardner, therefore, we hold that the record implies, through

appellant‘s trial strategy of seeking community supervision, that appellant

understood the effects of his plea when he made it even though he had not

expressly been informed (at least by the trial court) of those effects at that time.

See id.; see also Vasquez v. State, 522 S.W.2d 910, 912 (Tex. Crim. App. 1975)

(stating that the ―failure to give [admonishments regarding the right to confront

witnesses or the right against compelled self-incrimination] does not invalidate a

plea of guilty otherwise freely and voluntarily made‖); Slaughter v. State, No. 02-

07-00050-CR, 2007 WL 3120688, at *5 (Tex. App.—Fort Worth Oct. 25, 2007, no

pet.) (mem. op., not designated for publication) (relying on Gardner to overrule

an appellant‘s issue about the lack of express constitutional admonishments in

conjunction with a guilty plea when the record showed that the plea was part of a

trial strategy). And unlike in Gardner, this implication is confirmed by the

additional fact that appellant actually received all required admonishments and

expressly waived his constitutional rights at a time in which he could have

withdrawn his plea. See Murray v. State, 302 S.W.3d 874, 883 (Tex. Crim. App.

2009) (explaining that when a defendant pleads guilty in front of a jury, the

defendant may withdraw the plea at any time before the jury retires to consider

8
its verdict); Abrego v. State, 977 S.W.2d 835, 837 (Tex. App.—Fort Worth 1998,

pet. ref‘d) (describing the right to withdraw a guilty plea before the jury retires as

―unqualified‖).

Furthermore, appellant had notice of the three constitutional rights

mentioned in Boykin beyond the admonishments included in the plea paperwork.

Before voir dire, in appellant‘s presence, the trial court told the jury about the

Fifth Amendment, explaining that ―[appellant] cannot be made to testify by

anybody . . . unless he determines he wants to testify.‖ 8 Later, before appellant

testified, the trial court asked appellant whether he had talked with his attorneys

about his Fifth Amendment right against compelled self-incrimination, and he

confirmed that he had spoken with them. Next, appellant‘s knowledge of his right

to confront and cross-examine witnesses may be inferred by the fact that his

counsel actually did so. See Johnson v. State, 501 S.W.2d 306, 307 (Tex. Crim.

App. 1973). And appellant must have been aware of his right to a jury trial since

he exercised it when he announced his guilty plea in front of the jury and

continued to exercise it, as to a determination of his punishment, after

announcing the plea. See id.; see also Williams v. State, 674 S.W.2d 315, 318

(Tex. Crim. App. 1984) (stating that a ―plea of guilty before a jury is a trial by jury

and does not constitute waiver of trial by jury‖).

8
We note that appellant signed the plea paperwork, and therefore
expressly waived his right against compelled self-incrimination, before he
testified.

9
 For all of these reasons, we overrule appellant‘s first point to the extent

that appellant contends that the trial court erred by not giving him express

constitutional admonishments at the time that he pled guilty.

Statutory admonishments

Appellant also argues that the trial court erred by failing to give him

statutory admonishments at the time that he pled guilty. Article 26.13 of the code

of criminal procedure requires a trial court, prior to accepting a guilty plea, to

notify a defendant of various facts and conditions related to the plea. See Tex.

Code Crim. Proc. Ann. art. 26.13 (West 2009); Bessey v. State, 239 S.W.3d 809,

812 (Tex. Crim. App. 2007). The requirements of article 26.13 apply to a guilty

plea that is made before a jury. See Palacios v. State, 556 S.W.2d 349, 352

(Tex. Crim. App. 1977). The trial court‘s failure to comply with such requirements

may be raised for the first time on appeal. See Bessey, 239 S.W.3d at 812

(characterizing the right to admonishments under article 26.13 as a ―waivable-

only right,‖ meaning that it ―cannot be forfeited and may be raised for the first

time on appeal unless it is expressly waived‖).

Assuming that the trial court erred by giving appellant his statutory

admonishments after he pled guilty and after the State had rested its case, 9 that

9
In Palacios, the court of criminal appeals said that article 26.13‘s
admonishments should be given prior to the trial court‘s acceptance of the guilty
plea. 556 S.W.2d at 351–52; see also Tutor v. State, 599 S.W.2d 818, 819 (Tex.
Crim. App. [Panel Op.] 1980) (―The proper time to admonish a defendant is when
he is arraigned, and prior to impaneling the jury to assess his punishment.‖).

10
error must be reviewed under the nonconstitutional harm standard of rule of

appellate procedure 44.2(b). See Tex. R. App. P. 44.2(b) (stating that any

nonconstitutional error that does not ―affect substantial rights must be

disregarded‖); Bessey, 239 S.W.3d at 813; Carranza v. State, 980 S.W.2d 653,

657 (Tex. Crim. App. 1998); Fakeye v. State, 192 S.W.3d 112, 113 (Tex. App.—

Fort Worth 2006), aff’d, 227 S.W.3d 714 (Tex. Crim. App. 2007).10 Accordingly,

the trial court‘s failure to admonish a defendant of a particular consequence of a

plea is harmless when either that consequence does not apply to the defendant

or the record demonstrates that the defendant otherwise had knowledge of the

consequence. See Bessey, 239 S.W.3d at 813–14; Anderson v. State, 182

S.W.3d 914, 919 (Tex. Crim. App. 2006) (explaining that ―[w]hen courts have

failed to admonish guilty-pleading defendants on the immigration consequence of

conviction, we have held the error was harmless error when the record showed

that a defendant was a citizen of the United States‖); Slaughter, 2007 WL

3120688, at *6 (disregarding error under rule 44.2(b) because ―most of the

admonishments set forth in article 26.13 [did] not apply to the facts of th[e] case;

the one requirement that [did]—admonishment about the range of punishment—

was discussed in voir dire‖).

10
We recognize that rule 44.2(b) ―does not place a burden on either party.‖
Umoja v. State, 965 S.W.2d 3, 12 (Tex. App.—Fort Worth 1997, no pet.) (op. on
reh‘g).

11
 The specific admonishments that article 26.13 requires are (1) the range of

punishment attached to the offense, (2) admonishments related to plea bargains,

(3) consequences of the plea affecting a noncitizen, and (4) the fact that sex

offender registration requirements may be imposed following the conviction. Tex.

Code Crim. Proc. Ann. art. 26.13(a); Bessey, 239 S.W.3d at 812. In the case

before us, appellant‘s guilty plea did not occur because of a plea bargain,

appellant was born in Dallas and is a United States citizen, and DWI is not an

offense that requires sex offender registration. See Tex. Code Crim. Proc. Ann.

art. 62.001(5) (West Supp. 2010). As for the admonishment concerning the

range of punishment, the record shows that during the voir dire of the jury panel,

the prosecutor and appellant‘s counsel separately explained the punishment

range for felony DWI as two to ten years‘ confinement. Thus, we conclude no

harm resulted from a lack of an admonition about the range of punishment when

appellant pled guilty. See Tex. R. App. P. 44.2(b); Moore v. State, 278 S.W.3d

444, 447–48 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

We hold that even if the trial court erred by giving appellant statutory

admonishments after the State rested its case, that error is harmless and must

therefore be disregarded. See Tex. R. App. P. 44.2(b). Thus, we overrule the

remainder of appellant‘s first point.

The Effectiveness of Appellant’s Counsel

In his second point, appellant argues that his trial counsel‘s assistance was

ineffective because counsel allegedly did not call a material witness at trial, failed

12
to ―recognize [his] lack of normal cognitive ability,‖ and failed to adequately

convey the State‘s plea offer to him.

Standard of review

To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel‘s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel‘s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988

S.W.2d 770, 770 (Tex. Crim. App. 1999).

In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel‘s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel‘s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel‘s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63. A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

13
740; Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel‘s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

―any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting

Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

The second prong of Strickland requires a showing that counsel‘s errors

were so serious that they deprived the defendant of a fair and reliable trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must

show there is a reasonable probability that, but for counsel‘s unprofessional

errors, the result of the proceeding would have been different. Id. at 694, 104 S.

Ct. at 2068. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id. The ultimate focus of our inquiry must be on the

fundamental fairness of the proceeding in which the result is being challenged.

Id. at 697, 104 S. Ct. at 2070.

Analysis

Appellant first contends that his trial counsel was ineffective because

counsel did not adequately investigate testimony that could have been offered by

Dr. Carlos Venegas or call Dr. Venegas to testify. To obtain relief on an

14
ineffective assistance of counsel claim based on an uncalled witness, appellant

must show that Dr. Venegas was available to testify and that his testimony would

have benefited appellant. See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim.

App. 2004) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)).

Appellant called Dr. Venegas to testify in the hearing on appellant‘s motion

for new trial. During this hearing, Dr. Venegas said that he treated appellant for

diabetes and alcoholism and that two weeks before appellant‘s trial, he briefly

spoke on the telephone with one of appellant‘s trial attorneys, Brian Bolton, for

about five minutes. During this conversation, Dr. Venegas stated that he was

going to be in California during appellant‘s trial, and Bolton did not seem

interested in the conversation.

Dr. Venegas testified that appellant‘s diabetes and the disease‘s

complications ―may have had something to do with his lack of judgment and

cognitive skills‖ and that appellant could not understand this interrelation between

alcoholism and diabetes.11 According to Dr. Venegas, Bolton told him that he did

not need him to testify even though Bolton had not heard all of the facts that he

could have testified to. However, Dr. Venegas told Martha Bowling (an employee

at a recovery center that appellant used) about this information regarding

appellant, and Bowling testified at trial regarding appellant‘s outpatient treatment

11
Dr. Venegas explained, ―[D]iabetes over time can affect . . . the brain,
therefore diminishing [a person‘s] potential to take up oxygen, which would affect
brain cells, which would also impair cognition.‖

15
and the treatment that he could receive through various injections. Bowling‘s

testimony included a substantial part of what Dr. Venegas said he could have

testified about if Bolton had decided to call him as a witness.12

Bowling also testified at the hearing on appellant‘s motion for new trial.

She believed that appellant had trouble understanding the lessons taught in the

outpatient classes he attended. However, she did not provide testimony at trial in

that regard because Bolton ―didn‘t seem to want to hear any details‖ about her

concerns for appellant‘s cognitive ability. Bowling said that she could have also

testified about the potential effect of high blood sugar on an individual‘s

judgment.

Bolton testified that appellant hired him to develop a strategy of seeking

community supervision although the State had previously offered two years‘

confinement (which was the minimum term) during plea bargain negotiations with

appellant‘s prior counsel. Bolton knew that Dr. Venegas was one of appellant‘s

physicians, and Bolton knew of the medical treatment that appellant had

received. Moreover, Bolton understood the relation between appellant‘s diabetes

and alcoholism and stated that ―[d]iabetic conditions, you know, always I‘ve seen,

as far as I can tell with members of the defense bar, have been an issue for

contesting guilt.‖ However, he believed that focusing on appellant‘s diabetes in

12
Dr. Venegas stated that he had a ―continual dialogue‖ with Bowling about
appellant‘s treatments.

16
relation to appellant‘s punishment would have been detrimental because the

jury may have seen it as a smoke screen, an artificial, shallow
excuse. And I‘m certainly not taking away from [appellant‘s] medical
issues, but from a jury‘s perspective, it‘s been my experience and
the lawyers that I know of, diabetic issues are not . . . a punishment
issue. It‘s more of a guilt/innocence thing to attack what we see on
the videotape or why someone performs poorly on field sobriety
tests, not is this person eligible for probation or confinement.

Because Bolton did not believe that presenting evidence about appellant‘s

diabetic conditions matched appellant‘s strategy of seeking community

supervision, Bolton did not believe that Dr. Venegas‘s testimony could have

added anything that could not have been provided by another witness. Finally,

Bolton testified that he nonetheless considered obtaining a subpoena for Dr.

Venegas ―[j]ust to have him [at trial] in case the bottom fell out . . . . Just in

case.‖

In our ineffective assistance review, we must exercise substantial restraint

before second-guessing or interfering in the matters of trial strategy and tactics.

Holland v. State, 761 S.W.2d 307, 321 (Tex. Crim. App. 1988), cert. denied, 489

U.S. 1091 (1989); see Hill v. State, 303 S.W.3d 863, 878–79 (Tex. App.—Fort

Worth 2009, pet. ref‘d); Ex parte Jessep, 281 S.W.3d 675, 682 (Tex. App.—

Amarillo 2009, pet. ref‘d). Thus, the mere fact that another attorney might have

pursued a different course will not support a finding of ineffectiveness. Jessep,

281 S.W.3d at 682.

Bolton‘s testimony shows that he made a strategic decision after speaking

with Dr. Venegas (albeit briefly) that his testimony would not have been beneficial

17
to appellant‘s goal of obtaining community supervision. We conclude that

appellant has not shown a sufficient reason on appeal for us to second-guess

that decision or to depart from our usual deference to trial counsel in ineffective

assistance claims. See Salinas, 163 S.W.3d at 740.

Moreover, portions of Dr. Venegas‘s testimony might have actually harmed

appellant‘s case. Dr. Venegas said that appellant did not take advised injections

related to his alcoholism despite their availability and despite Dr. Venegas‘s

repeated phone calls to appellant. At one point, the following exchange occurred

between the trial court and Dr. Venegas:

THE COURT: Okay. Now I‘m looking at the indictment here
and the case that he was tried for. He committed the offense of
driving while intoxicated on the 23rd day of September of 2007.
That was after your treatment.

THE WITNESS: The first, yes, correct.

THE COURT: Okay. So then, really and truly, either your
treatment wasn‘t having any effect or [appellant] wasn‘t really caring
about the treatment and following the regimen that you prescribed
for him?

THE WITNESS: Solely, it would be a combination of both.
I would have to say a combination of both.

Dr. Venegas‘s testimony that appellant had either not followed or not cared about

his treatment could have hampered appellant‘s community supervision strategy.

See White, 160 S.W.3d at 52 (explaining that the appellant has the burden in an

ineffective assistance challenge to show that an uncalled witness‘s testimony

would have been beneficial). Dr. Venegas‘s testimony could have left the jury

18
with the impression that treatment was not working because appellant became

Dr. Venegas‘s patient in October 2006, and appellant‘s arrest for the DWI in this

case occurred almost a year later.

Finally, even if we were to conclude that Bolton should have sought a

continuance and attempted to use Dr. Venegas‘s testimony, our review of the

record does not show that the totality of appellant‘s counsel‘s representation was

ineffective. See King, 649 S.W.2d at 44 (explaining that ―[i]neffective assistance

of counsel cannot be established by separating out one portion of the trial

counsel‘s performance for examination‖); Pieringer v. State, 139 S.W.3d 713,

717 (Tex. App.—Fort Worth 2004, no pet.).

For all of these reasons, we hold that appellant has not sustained his

burden of proving by a preponderance of the evidence that Bolton was ineffective

because he did not use greater efforts to explore Dr. Venegas‘s testimony or use

the testimony at trial. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Appellant also succinctly asserts in his brief that his counsel was

ineffective by not recognizing his ―lack of cognitive abilities.‖ Appellant says in

his brief that a defendant‘s ―cognitive abilities . . . to even enter a knowing,

intentional, and voluntary plea [are] always at issue.‖ Also, some of Dr.

Venegas‘s testimony at the hearing on appellant‘s motion for new trial attempted

to connect appellant‘s alleged cognitive deficiency to his decision to plead guilty.

But the record shows that for strategic reasons, appellant engineered his

decision to plead guilty. Bolton testified at the hearing that appellant hired him

19
even though appellant‘s previous attorney had negotiated a plea bargain for two

years‘ confinement because appellant wanted a ―second opinion‖ about whether

he could be granted community supervision. Bolton confirmed during the hearing

that he informed appellant about the risk of rejecting the plea bargain and

seeking community supervision at trial. Furthermore, Bolton and appellant‘s

other trial attorney opined at trial that appellant was capable and competent to

plead guilty.

Next, appellant‘s use of his alleged lack of cognition to attempt to excuse

his DWI would have likely been unsuccessful because Dr. Venegas admitted that

appellant understood that if he consumed excessive alcohol and drove, he could

be arrested for DWI. And although Dr. Venegas asserted that the jury may have

been more lenient if it knew that appellant misunderstood his alcoholism, offering

such testimony to the jury might have been incongruous with appellant‘s plan to

take responsibility for his offense and seek community supervision.

We hold that appellant has not shown a reasonable probability that his

counsel‘s greater understanding of his apparent lack of cognitive ability would

have changed the outcome of his trial or the punishment given by the jury.

We overrule that aspect of appellant‘s ineffective assistance claim on that basis.

See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Finally, appellant argues that his original counsel was ineffective by

allegedly not conveying the complete terms of the State‘s plea bargain offer. See

Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000) (―Failure of defense

20
counsel to inform a criminal defendant of plea offers made by the State is an

omission that falls below an objective standard of professional reasonableness.‖);

Flores v. State, 784 S.W.2d 579, 581 (Tex. App.—Fort Worth 1990, pet. ref‘d) (―A

defense attorney has an obligation to fully advise his client of the terms . . . of

plea offers extended by the State.‖) Appellant contends in his brief that ―[t]he

record seems to indicate there may have been an acceptance deadline (set by

the court) or the plea offer would be withdrawn,‖ that he ―was not informed by his

original trial counsel that there was a deadline for acceptance,‖ and that

―[n]othing in the record controverts [his] assertion he was never informed of any

deadline . . . , assuming that deadline indeed existed.‖ [Emphasis added.]

Appellant concludes, ―Assuming arguendo that a deadline was attached . . . ,

there is no evidence said deadline . . . was conveyed to [him].‖ [Emphasis

added.]

During a hearing on appellant‘s motion to recuse the trial judge, the

prosecutor said,

The initial plea offer on th[e] case was three years, and we worked it
down to two . . . .

. . . Mr. Dobson [appellant‘s original counsel] got ahold of me
and said, [―]Look, I can probably get him to understand the reasons
behind taking two years.[‖] . . . I told Mr. Dobson, [―]That‘s fine with
the State.[‖] The offer was three, and I‘m not going to quibble over a
year. So . . . in the end of June, that‘s what I was expecting to do on
June 24th, was plea him out. That‘s what the Court was expecting.

That morning, it came to my attention that Mr. Dobson was no
longer representing [appellant], that new attorneys had been hired

21
 and those are the two attorneys sitting here in front of you. They
showed up that afternoon. . . .

Once Mr. Dobson got off the case, I informed both the two
new attorneys that as far as the State was concerned, the plea deal
was off. . . . [Appellant] had a good offer; he chose not to take it.

During the same hearing, appellant‘s trial counsel said, ―[W]e were called before

the Honorable Court to give our announcement as to the State‘s offer, which

[appellant] refused.‖

Thus, even if the two-year plea bargain offer had a deadline that appellant

did not know about, the termination of the offer was not caused by the expiration

of the deadline; it was caused by the State‘s decision to withdraw the offer and

appellant‘s nearly contemporaneous decision to reject it. Because appellant

cannot show a reasonable probability that the result of the trial court‘s

proceedings would have changed had he known of a deadline to accept the

State‘s plea bargain offer, we overrule that basis for appellant‘s ineffective

assistance claim. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

We hold that each of appellant‘s contentions regarding his claim of

ineffective assistance is without merit, and we overrule his second point.

The Trial Court’s Alleged Interference in Plea Negotiations

In his third point, appellant contends that the trial court improperly engaged

in his plea negotiations with the State. The basis for this allegation is the

following statement that the trial judge made during a pretrial hearing in

June 2008:

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 THE COURT: All right. We‘re supposed to have a plea here
today. It appears that [appellant] does not want to plea. For the
record, I will not accept any plea bargain in this matter, unless it is
for the maximum term of ten years.

Appellant claims that this statement evidences the trial court‘s intrusion into the

plea negotiation process and warrants reversal.13

Plea bargains are an integral part of the criminal justice system. Moore v.

State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009) (citing Gutierrez v. State, 108

S.W.3d 304, 306 (Tex. Crim. App. 2003)). At its core, a plea bargain is a

contract between the State and the defendant. Id. As a contract, when both

parties have entered knowingly and voluntarily into the plea bargain, they are

bound by its terms once it is accepted by the judge. Id. Because a plea-bargain

agreement is solely between the State and the defendant, only those parties may

alter the terms of the agreement; the trial court commits error if it unilaterally

adds unnegotiated terms to a plea-bargain agreement. Id. at 332 (explaining that

the ―only proper role of the trial court in the plea-bargain process is advising the

defendant whether it will ‗follow or reject‘ the bargain between the state and the

defendant‖).

A trial judge‘s participation in plea discussions prior to an agreement being

reached is disfavored because the power and position of the judge may

13
In his supplemental brief on remand, appellant seems to contend that the
trial court coerced him into entering his guilty plea at trial. Appellant does not
explain, however, how the statement that is quoted above affected his decision to
plead guilty before the jury.

23
improperly influence the defendant to enter a guilty plea. Wright v. State, 776

S.W.2d 763, 767 (Tex. App.—Corpus Christi 1989, pet. ref‘d); see Perkins v.

Court of Appeals for Third Supreme Judicial Dist. of Texas, at Austin, 738

S.W.2d 276, 282 (Tex. Crim. App. 1987); Lynch v. State, 318 S.W.3d 902, 903

(Tex. App.—San Antonio 2010, pet. ref‘d). The trial judge should always avoid

the appearance of any judicial coercion or prejudgment of the defendant because

such influence might affect the voluntariness of the defendant‘s plea. Perkins,

738 S.W.2d at 282. The trial court remains free in every case, however, to

refuse to allow plea bargaining or to reject a particular plea bargain entered into

by the State and the defendant. Gaal, 332 S.W.3d at 457; State ex rel. Bryan v.

McDonald, 662 S.W.2d 5, 9 (Tex. Crim. App. 1983) (citing Morano v. State, 572

S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1978)); Smith v. State, 243

S.W.3d 722, 726 (Tex. App—Texarkana 2007, no pet.).

The record and applicable case law do not support the contention that the

trial court improperly interjected itself into the plea-bargaining process. The trial

court‘s statement that it would not ―accept any plea bargain in this matter, unless

it [was] for the maximum term‖ did not unilaterally add unnegotiated terms to the

plea-bargain agreement. See Moore, 295 S.W.3d at 332. Instead, the trial court

simply refused to allow any plea bargaining by effectively nullifying any

advantage to be gained by using a plea bargain—after all, a plea bargain for the

maximum amount of the statutory punishment is really no plea bargain at all.

See Gaal, 332 S.W.3d at 458. The trial court was acting within its right to ―refuse

24
to allow plea bargaining or to reject a particular plea bargain.‖ See State ex rel.

Bryan, 662 S.W.2d at 9. We are unpersuaded by appellant‘s attempt to equate

the trial court‘s decision to effectively foreclose plea negotiations with

interference in negotiations.14

For these reasons, we conclude that the trial court did not interfere with

plea negotiations. We overrule appellant‘s third point.

Conclusion

Having overruled all of appellant‘s remaining points on remand, we affirm

the trial court‘s judgment.

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 14, 2011

14
Appellant asserts that the trial court ―invaded the province of the
prosecution and the defense in continued negotiations to achieve a plea-bargain
disposition of the case.‖ In interpreting the trial judge‘s comment at issue,
however, the court of criminal appeals opined, ―The trial judge, perhaps
inarticulately, cut off plea bargaining.‖ Gaal, 332 S.W.3d at 458 (emphasis
added). The court held that a ―reasonable person . . . would translate the judge‘s
statement as, ‗I‘m not going to reset this case for any more plea negotiations;
we‘re going to trial.‘‖ Id. Thus, under the court of criminal appeals‘s reasoning,
the trial court did not participate in the plea bargaining process but instead
terminated it. Appellant also argues that the trial court took a ―firm position on
punishment‖ when making its statement about refusing to accept any plea
bargain except for the maximum amount of confinement. But the court of
criminal appeals rejected appellant‘s position in that regard. Id.

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