Paul Ahrick Best Sr. v. State ( 2012 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00685-CR
____________________
PAUL AHRICK BEST SR., Appellant
V.
THE STATE OF TEXAS, Appellee
_____________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CR28089
_____________________________________________________________________
MEMORANDUM OPINION
Paul Ahrick Best Sr. pleaded guilty to aggravated assault with a deadly weapon,
enhanced, and the trial court sentenced Best to life in prison. Best filed a motion for new
trial, which the trial court denied after a hearing. In two appellate issues, Best contends
that his trial counsel rendered ineffective assistance. We affirm the trial court’s
judgment.
Factual Background
Best was intoxicated when he drove his vehicle onto the shoulder of the road and
struck Matthew Kline’s disabled vehicle. Kline suffered serious injuries. The State
1
charged Best with intoxicated assault and driving while intoxicated, third or more, but
later re-indicted Best to allege aggravated assault (Count I), intoxicated assault (Count
II), and driving while intoxicated, third or more (Count III). Only Counts II and III
contained an enhancement paragraph. However, the State filed a notice of intent to seek
an enhanced punishment.
At the plea hearing, the State proceeded only on Count I enhanced by a prior
conviction. The trial court advised Best that aggravated assault with an enhancement is a
first-degree felony punishable by five to ninety-nine years or life in prison. Best
acknowledged that he understood the charge and the range of punishment, reviewed the
plea papers with his attorney, and understood the plea papers. Best pleaded “guilty” to
Count I and “true” to the enhancement and confirmed that he had not been coerced,
threatened, or forced to plead guilty and had not been promised anything in exchange for
his plea. Best signed plea admonishments that identified the punishment range and
included acknowledgments that he understood the admonishments and the consequences
of his plea, his plea was freely and voluntarily made, and he was satisfied with his
attorney’s representation.
At sentencing, Best explained that he has struggled with substance abuse and
driven while intoxicated on numerous occasions. He testified that he was intoxicated and
caused the accident, but feels much regret and remorse. He testified that he is now trying
to make the right choices. Best’s brother Jeffrey and Best’s wife Yvette testified that
2
Best has been sober since the accident. Yvette testified that Best has diabetes, high blood
pressure, and post-traumatic stress disorder resulting from a work-related explosion. She
testified that the Social Security Administration declared Best disabled and that Best
takes numerous prescription medications.
Tanya Childress, who conducted the presentence investigation, testified to the
probation conditions that would apply to Best should he be granted probation. Childress
testified that Best’s criminal history shows that he was previously a poor candidate for
probation. She explained that Best has a lengthy criminal history, including offenses for
driving while intoxicated, a sex offense, and probation that ended in revocation.
The State argued that Best was not a candidate for probation and should be
sentenced to no less than forty years in prison. Best’s counsel, Walter Fontenot,
encouraged a lengthy probation. Fontenot argued that probation terms are stringent and
would force Best to “walk a straight and narrow line.” He urged the trial court to have
compassion on Best and to avoid imposing a lengthy incarceration. The trial court noted
the chances that Best had previously received and opined that, given Best’s criminal
history, a lengthy incarceration was necessary to protect society.
At the hearing on Best’s motion for new trial, Yvette and Jeffrey testified that
several people would have testified on Best’s behalf at the sentencing hearing. Yvette
testified that Fontenot never explained the importance of how the community viewed
Best. Fontenot testified that he asked Best, in writing, to provide names of character
3
witnesses, but that he never received any names. He also testified that Best failed to
provide medical records. Yvette admitted seeing some of Fontenot’s requests, but she
testified that she never compiled a list of character witnesses or talked to people about
testifying at sentencing. She explained that she told Fontenot that other people wanted to
testify, but Fontenot said these witnesses were not needed. Jeffrey testified that Fontenot
said testimony from Jeffrey, Yvette, and Best’s brother David would be sufficient. David
testified that he did not attend the sentencing hearing, but he thought Best would be
placed on probation and had no idea Best faced a life sentence. Yvette testified that she
did not know she needed to bring several witnesses to the sentencing hearing.
Fontenot testified that he implemented the following trial strategy:
Admit what you did, admit that you had a prior criminal record dating back
when you were a teenager, admit all of those things. Yes, I did it, I’m sorry,
I committed an offense . . . in 2008. I haven’t had one drop of liquor since
that time. I have been a model citizen since that time. I have tried to work,
in spite of my injury. I have tried to do everything that I could to make
atonement for what happened to that -- to the person who was injured in the
accident. That was my strategy, hoping that the -- that Judge Cain would
take all of that into consideration, especially his sobriety since the date of
the incident. And hopefully, it was my strategy not to try to color over
anything, but to admit it and -- then the old saying in television -- plead to
the mercy of the Court.
According to Fontenot, he told Best six months in custody and ten years of probation
would be optimal. He tried to convince the State to be amenable to probation, but
Fontenot testified that the prosecutor would only recommend incarceration. Fontenot
testified that he was unaware that Best was ineligible for probation once he pleaded guilty
4
to aggravated assault with a deadly weapon, but he believed the trial court could grant
probation in the interest of justice.
Fontenot testified that, before the State amended its indictment against Best, the
State offered a plea bargain that included a twenty-year punishment cap. Fontenot
testified that Best rejected this offer. Best testified that he believed the offer was part of
the process of receiving probation. Best, Yvette, Jeffrey, and David testified that they
believed Best would receive six months in jail and ten years of probation if he pleaded
guilty. David testified that Fontenot never mentioned the possibility of a lengthy
sentence. Yvette testified that Fontenot said, “‘The DA wants some flesh, so we’re going
to have to give them a pound of flesh[]’” and “‘The worst case scenario is six months in
county jail, 10 years’ probation.’”
Fontenot denied promising Best that he would receive probation. He testified that
he told Best the State wanted incarceration and that the only way to obtain probation was
through the trial judge. He told Best that the trial judge would give him a fair hearing
and had been known to grant probation even when the State did not offer probation.
Yvette testified that she was unaware that the range of punishment included a life
sentence. Jeffrey testified that Fontenot mentioned a wide range of punishment, but did
not guarantee probation. Best admitted that Fontenot never promised probation, but he
explained that probation was the only punishment discussed and he was never told that
5
the State wanted incarceration or was not agreeable to probation. He testified that he did
not know he faced the possibility of life in prison.
Ineffective Assistance
In issues one and two, Best presents three complaints to support his contention that
Fontenot rendered ineffective assistance. First, Best complains that Fontenot did not
conduct discovery, investigate or mitigate Best’s potential punishment, or interview
individuals in the community. Reasonably competent counsel must advance his client’s
best defense in a reasonably competent manner, which includes the duty to promptly
investigate the circumstances of the case and explore avenues that may lead to relevant
facts. Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005). Counsel’s failure
to investigate or present witnesses is a basis for establishing ineffective assistance only
when it is affirmatively shown that the presentation of that evidence would have
benefited the defendant. Garrett v. State, 998 S.W.2d 307, 314 (Tex. App.—Texarkana
1999, pet. ref’d).
The record contains conflicting evidence regarding Fontenot’s efforts to procure
witnesses for the sentencing hearing. As sole judge of the weight and credibility of the
evidence, the trial court could choose to believe Fontenot’s testimony that Best did not
respond to his requests for a witness list or provide medical records. See Alexander v.
State, 282 S.W.3d 701, 706 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“At a
hearing on a motion for new trial, the trial court is the sole judge of the credibility of the
6
witnesses and the weight to be given their testimony.”). Moreover, the trial court
indicated at sentencing that the decision to impose a life sentence was largely based on
Best’s criminal history, and the trial court reiterated this opinion at the hearing on Best’s
motion for new trial. The trial court made this decision even after hearing testimony
regarding Best’s physical health, sobriety, and life changes. Best has not affirmatively
shown that additional evidence would have benefitted him. See Garrett, 998 S.W.2d at
314.
Second, Best contends that had Fontenot conducted an investigation, the need to
accept the State’s initial plea offer would have been apparent. When a defendant pleads
guilty to less favorable terms and claims that counsel’s ineffective assistance caused him
to forgo a more favorable earlier plea offer, we consider whether the defendant would
have accepted the offer pursuant to the terms earlier proposed. Missouri v. Frye, 2012
U.S. LEXIS 2321, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012). A defendant who
shows a reasonable probability that he would have accepted the earlier plea offer must
then show a reasonable probability that neither the State nor the trial court would have
prevented the offer from being accepted or implemented. Id.Best testified that he did not recall much discussion regarding the State’s initial
plea offer, but he explained, “I can’t help but think that I would surely jump on that
before I would take a five to 99.” He explained that he did not understand that if he
failed to accept the State’s offer by the designated deadline, he would face the possibility
7
of life in prison. However, Fontenot testified that he told Best that if he did not accept
the State’s offer, the case would be presented to the grand jury for re-indictment and that
Best would face five to ninety-nine years in prison instead of two to twenty years in
prison. The trial court heard testimony that Best rejected the plea offer, wanted
probation, and never expressed a desire to withdraw his guilty plea at sentencing.
The trial court could reasonably conclude that Fontenot communicated the State’s
offer to Best and explained the consequences of rejecting the offer. Even assuming,
without deciding, that counsel’s performance was deficient and Best’s testimony shows a
reasonable probability that he would have accepted the State’s offer, Best has not shown
that the State would not have withdrawn the offer or that the trial court would not have
refused to accept the offer. See Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App.
2009) (The State may offer or withdraw a plea bargain.); see also Tex. Code. Crim. Proc.
Ann. art. 26.13(a)(2) (West Supp. 2012); Wright v. State, 158 S.W.3d 590, 593 (Tex.
App.—San Antonio 2005, pet. ref’d) (A trial court has wide discretion when deciding
whether to accept a plea bargain agreement.). Accordingly, Best cannot establish
ineffective assistance on this basis. See Frye, 132 S.Ct. at 1410.
Third, Best contends that Fontenot was unfamiliar with the law and failed to
advise him as to the consequences of pleading guilty and that, as a result, his plea was
involuntary. A guilty plea is not knowingly or voluntarily made if it results from
ineffective assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex.
8
Crim. App. 2012). We consider (1) whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases; and if not, (2) whether there is a
reasonable probability that, but for counsel’s errors, the defendant would not have entered
his plea and would have insisted on going to trial. Courtney v. State, 39 S.W.3d 732,
736-37 (Tex. App.—Beaumont 2001, no pet.).
The record contains written and verbal admonishments in which Best
acknowledged his understanding of the punishment range and the consequences of his
plea. Written admonishments signed by the defendant and the reporter’s record showing
that the defendant verbally represented to the trial court that he understood the
admonitions constitute a prima facie showing of voluntariness. Id. at 736. Best bears the
heavy burden of showing that he entered his plea without understanding the
consequences, such that he suffered harm. See id.The record does not indicate that Fontenot promised Best that probation would be
granted. Even so, at sentencing, the trial court heard evidence and arguments regarding
probation. The record contains the pre-sentence investigation report, evidence of the
terms that would apply to Best should the trial court grant probation, and testimony
regarding Best’s previous failed attempts at probation. The trial court heard testimony
regarding Best’s sobriety, regret, acceptance of responsibility, determination to make the
right choices, and physical condition. Nevertheless, the trial court found that a lengthy
9
incarceration was needed to protect society. The trial court’s comments at sentencing
suggest that the trial court considered and rejected probation.
Under these circumstances, and in light of the written and verbal admonishments
found in the record, Best has not sustained his burden of showing harm, nor has he
demonstrated that, but for any errors by Fontenot, he would not have pleaded guilty and
would have insisted on going to trial. See Courtney, 39 S.W.3d at 737; see also Nicholas
v. State, 56 S.W.3d 760, 771 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (“A plea
is not rendered involuntary simply because the defendant did not receive the punishment
he hoped for, even if his expectation was the result of something the defendant claims his
lawyer told him.”). Because Best has failed to establish his claims of ineffective
assistance, we overrule issues one and two and affirm the trial court’s judgment.
AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on November 13, 2012
Opinion Delivered December 12, 2012
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
10