Marquis K Jones v. State

AFFIRMED and Opinion Filed January 20, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01282-CR
MARQUIS K JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1554782-T
MEMORANDUM OPINION
Before Justices Pedersen, III, Reichek, and Garcia1
Opinion by Justice Garcia
This case involves ineffective assistance of counsel claims in the context of a
revocation hearing.
The trial court revoked appellant’s community supervision, adjudicated him
guilty of possession with intent to manufacture or deliver heroin in an amount of
more than four grams but less than 200 grams, and assessed punishment at twenty
years in prison. Appellant now argues that his revocation hearing counsel was
1
The Honorable Dennise Garcia succeeded the Honorable Bill Whitehill, a member of the original
panel. Justice Garcia has reviewed the briefs and the record before the Court.
ineffective because he did not call mitigation witnesses and because counsel assured
him his probation would not be revoked, rendering his plea involuntary. Finding no
reversible error, we affirm the trial court’s judgment.
I. BACKGROUND
Appellant was charged with possession with intent to manufacture or deliver
heroin in an amount of more than four grams but less than 200 grams and pleaded
guilty pursuant to a plea agreement. The trial court deferred adjudication and placed
appellant on ten years community supervision in accordance with the plea.
In April 2018, the State moved to revoke appellant’s community supervision.
Appellant pleaded true to the State’s allegations. The trial court modified the
conditions and continued appellant’s community supervision.
A year later, the State moved again to revoke appellant’s community
supervision. Appellant pleaded true to the State’s allegations and the trial court held
a revocation hearing. When the hearing concluded, the court revoked appellant’s
community supervision, adjudicated him guilty, and assessed punishment at twenty
years in prison.
Appellant filed a pro se notice of appeal. We abated the case for the trial court
to appoint appellate counsel.
After counsel was appointed and the case reinstated, appellant argued that he
was denied the right to counsel because he was not represented during the time for
filing a motion for new trial and his plea was not voluntary because counsel was
–2–
ineffective. He further argued that counsel was ineffective because he failed to call
mitigation witnesses during the revocation hearing.
We abated the appeal to allow an out of time motion for new trial. The motion
was filed, the trial court conducted a hearing, a supplemental record was filed, and
we reinstated the appeal. Having addressed appellant’s argument concerning
representation for the motion for new trial, we now consider appellant’s remaining
arguments.
II. ANALYSIS
Appellant argues that his trial counsel was ineffective because (i) counsel
failed to call mitigation witnesses, and (ii) his plea was involuntary in that counsel
advised his probation would be continued, and he would not have pleaded true to the
revocation allegations had he known he would be sentenced to twenty years in
prison. The record does not support these assertions.
A. Involuntary Plea
We begin with appellant’s contention that his plea was not voluntary because
revocation counsel was ineffective. The Sixth Amendment of the United States
Constitution guarantees an accused’s right to the effective assistance of counsel in
criminal prosecutions. U.S. CONST. amend. VI; Lopez v. State, 343 S.W.3d 137, 142
(Tex. Crim. App. 2011). This right is applicable to guilty-plea proceedings. See Ex
parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
–3–
A guilty plea may be considered involuntary due to ineffective assistance of
counsel if the plea is not knowingly and voluntarily given due to the erroneous
advice of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 688–89 (Tex. Crim.
App. 2012). To demonstrate that a plea was involuntary based on ineffective
assistance of counsel, the defendant must demonstrate by a preponderance of the
evidence (1) that counsel’s performance was deficient and (2) that the defendant was
prejudiced as a result of counsel’s errors. Miller v. State, 548 S.W.3d 497, 499 (Tex.
Crim. App. 2018); Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). An
ineffective assistance claim must be “firmly founded in the record” and “the record
must affirmatively demonstrate” the meritorious nature of the claim. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Under the first prong, the defendant must demonstrate that his counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 687–88; see also Ex parte Morrow, 952
S.W.2d 530, 536 (Tex. Crim. App. 1997). “This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Strickland’s
second prong generally measures prejudice in terms of whether the deficient
performance affected the outcome of the proceeding. See Strickland, 466 U.S. at
694. Thus, when the deficient performance might have affected a punishment
verdict, the prejudice inquiry focuses on whether there is a reasonable probability
–4–
that absent the errors, a more lenient punishment would have been assessed. See
Miller, 548 S.W.3d at 500.
In this instance, the State alleged that appellant violated numerous conditions
of his community supervision, including failing a urinalysis test as required for
successful completion of the Substance Abuse Felony Program (SAFP) that was also
a condition of his probation. Appellant pleaded true to all alleged violations.
Appellant testified at the revocation hearing and affirmed that he understood
the State’s allegations in the motion to revoke and wanted to enter a plea of true. He
further affirmed his understanding that by pleading true, the trial court could find
that he violated his community supervision, revoke it, adjudicate him guilty, and
sentence him to the maximum provided by law. Appellant said he had discussed the
matter at length with counsel, understood the terms of his plea, and had no questions
for the trial court. He also signed the plea form acknowledging, among other things,
that he could receive the maximum sentence allowed by law.
Likewise, at the hearing on the motion for new trial, appellant testified that he
knew he was on deferred probation and the entire range of punishment was open.
His attorney advised that he plead true to the probation violations and told appellant
the judge could give him any sentence she wanted. Although appellant said he would
not have pleaded true to the revocation allegations if he had known he would be
sentenced to twenty years in prison, he admitted that he knew what he was doing
when he entered his plea.
–5–
Appellant’s revocation counsel, Jason Foster, testified that the State
recommended a ten-year sentence, but there was no plea bargain. Foster informed
appellant that the court could “follow the recommendation or not.”
Appellant’s fiancée also testified that she and appellant both knew that the
revocation hearing could result in appellant being continued on probation or sent
back to prison. They both also knew that the range of possible punishment was from
five to ninety-nine years in prison.
On this record, there is nothing to suggest that appellant’s plea was not
voluntary or that counsel’s advice was unreasonable. Advising a defendant to plead
true in anticipation that the trial judge will rule leniently does not equate to
ineffective assistance of counsel. See Graves v. State, 803 S.W.2d 342, 345 (Tex.
App.—Houston [14th Dist.] 1990, pet. ref’d). Appellant acknowledged that counsel
informed him that the judge could consider the full range of punishment. Thus, while
appellant may have hoped for a different outcome, he was fully apprised of and
aware of the consequences of his plea. We therefore cannot conclude that counsel’s
performance regarding the plea was deficient. See Strickland, 466 U.S. at 687–88;
Morrow 952 S.W.2d at 536.
B. Failure to Call Mitigation Witnesses
Appellant also urges that counsel was ineffective because he did not call
several witnesses who were prepared to testify on appellant’s behalf. The record
establishes otherwise.
–6–
The failure to call a witness does not constitute ineffective assistance of
counsel without showing both that the witness was available to testify, and that
witness’s testimony would have benefitted defendant. See Wilkerson v. State, 726
S.W.2d 542, 550–51 (Tex. Crim. App. 1986). Moreover, because counsel’s decision
to call witnesses is a strategic choice involving weighing risks and benefits of
testimony, courts should evaluate an attorney’s explanations before concluding
counsel was ineffective. See Prine v. State, 537 S.W.3d 113, 118 (Tex. Crim. App.
2017).
Here, unlike most direct appeals, we have the benefit of a supplemental record
on the motion for new trial. See, e.g., Lopez v. State, 343 S.W.3d 137, 144 (Tex.
Crim. App. 2011) (record could have been supplemented to explain counsel’s
strategy). That record does not reflect that counsel’s hearing strategy was objectively
unreasonable.
Appellant’s motion for new trial included affidavits from his fiancée, aunt,
great aunt, great uncle, and his mother. These affidavits were admitted into evidence
at the hearing and the witnesses affirmed their accuracy and substance. Each witness
said that he or she was available to testify at the revocation hearing, but either no
one contacted them, or they were told they need not attend. The witnesses also
testified that they loved and supported appellant and were committed to his future
success on probation and beyond. Some of the witnesses testified about life
challenges appellant had struggled to overcome.
–7–
Revocation counsel Jason Foster also testified, and his affidavit was admitted
into evidence. He said that he spoke with appellant’s fiancée on several occasions
and recalled telling her that he did not think her testimony would be beneficial at the
revocation hearing. He did not recall speaking with appellant’s mother or any of his
other relatives but did not believe that any of the witnesses’ testimony would have
advanced his strategy.
The revocation proceeding at issue here was precipitated by appellant failing
a urinalysis test. He was taken into custody for transfer to the relapse program for
SAFP. As he awaited admission, the trial court released him to attend his
grandmother’s funeral. But appellant failed to return at the designated time. Instead,
he absconded and was subsequently arrested.
Foster said that appellant’s relatives’ affection for him was not the pertinent
issue at the revocation hearing. Rather, the issue was why appellant absconded that
day. He believed that hearing from appellant’s family about how appellant “messed
up” and how sorry they were would likely annoy the judge because the court needed
to hear about appellant’s remorse, not his family’s.
Foster advised appellant that he needed to be open and honest with the judge
about his state of mind that day. Appellant assured him that he understood. But
appellant did not testify well and had a “bad attitude.” Consequently, Foster believed
he needed to “shut it down.”
–8–
Foster also had specific concerns about calling appellant’s fiancée to testify
because she helped appellant abscond and was with him when he “committed a new
crime in Rockwall.” Therefore, Foster was concerned about her potential
impeachment.
Because the trial judge overruled appellant’s motion for new trial and did not
make express findings, we presume she viewed the trial strategy employed by
revocation counsel as having been within the wide latitude of choices available to a
competent attorney in a criminal case. See Zarate v. State, 551 S.W.3d 261, 272–73
(Tex. App.—San Antonio 2018, pet. ref’d) (in the absence of express findings we
presume trial court made all findings in prevailing party’s favor). We agree with that
determination. Although witnesses were available to testify on appellant’s behalf,
there is nothing to suggest the testimony would have benefitted appellant. Under
these circumstances, we cannot conclude that counsel’s strategic decision to not
open the door to potentially adverse and irrelevant evidence is objectively
unreasonable or “so outrageous that no competent attorney” would have employed
that strategy. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Because appellant has not met his burden to satisfy the first prong of
Strickland, we need not consider Strickland’s prejudice prong. See Williams v. State,
301 S.W.3d 675, 687 (Tex. Crim. App. 2009); TEX. R. APP. P. 47.1.; see also
Strickland, 466 U.S. at 687–688.
–9–
We overrule appellant’s ineffective assistance issue and affirm the trial court’s
judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
191282F.U05
–10–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARQUIS K JONES, Appellant On Appeal from the 283rd Judicial
District Court, Dallas County, Texas
No. 05-19-01282-CR V. Trial Court Cause No. F15-54782-T.
Opinion delivered by Justice Garcia.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Reichek
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered January 20, 2021
–11–