Edgar Guijon ( 2007 )

Affirmed and Memorandum Opinion filed November 20, 2007

Affirmed and Memorandum Opinion filed November 20, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-01001-CR

____________

EDGAR GUIJON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 951934-A

M E M O R A N D U M   O P I N I O N

Appellant Edgar Guijon was charged with possession of 5.1 pounds of marihuana.  Pursuant to a plea bargain, appellant pleaded guilty to the third-degree felony of possession of five to fifty pounds of marihuana and received five years= deferred adjudication.  In response to the State=s motion to adjudicate guilt, appellant filed an application for writ of habeas corpus.  Appellant alleged his plea was involuntary because trial counsel provided ineffective assistance.  Following an evidentiary hearing, the trial court denied appellant=s writ of habeas corpus.

In four issues, appellant argues the trial court erred in denying his writ.   In his first two issues, appellant contends that trial counsel=s failure to file a motion to disclose the identity of a confidential informant who was present at appellant=s arrest constituted ineffective assistance and that counsel=s failure to advise him of his right to request disclosure of the informant resulted in an involuntary plea.  In his third and fourth issues, appellant argues that his lawyer was deficient by failing to move to have the marihuana weighed after any ungerminated seeds and stalks were removed and that counsel=s failure to advise appellant of his right to have the marihuana reweighed rendered his plea involuntary.  We affirm the judgment of the trial court.

Standard of Review

In reviewing a trial court=s decision on a habeas corpus application, we review the facts in the light most favorable to the trial court=s ruling and, absent an abuse of discretion, uphold the ruling.  Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003).  We give Aalmost total deference to a trial court=s determination of the historical facts,@ particularly when the findings are based on an evaluation of credibility and demeanor.  Id. at 819.  We afford the same deference to the trial court=s application of the law to the facts if the resolution of the ultimate question turns on an evaluation of credibility and demeanor.  Id.  If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo.  Id.

Ineffective Assistance

To prove ineffective assistance of counsel, appellant must show (1) that counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for counsel=s deficient performance.  Strickland v. Washington, 466 U.S. 668, 687B96 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  This two‑prong standard also applies to challenges of guilty pleas.  See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).  The defendant must prove objectively, by a preponderance of the evidence, that trial counsel=s representation fell below professional standards.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance.  Salinas, 163 S.W.3d at 740.  In assessing counsel=s competence, we presume counsel has knowledge of legal principles that are neither novel nor unsettled.  Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998). To defeat this presumption, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). 

In the context of a claim that the defendant=s plea is involuntary due to ineffective assistance of counsel, the defendant must show (1) that counsel=s advice was outside the range of competency demanded of attorneys in criminal cases and (2) that but for counsel=s erroneous advice, the defendant would not have pleaded guilty and instead would have gone to trial.  Ex parte Moody, 991 S.W.2d 856, 857B58 (Tex. Crim. App. 1999).  Misinformation concerning a matter, such as probation, about which a defendant is not constitutionally or statutorily entitled to be informed, may render a guilty plea involuntary if the defendant shows his guilty plea was actually induced by the misinformation.  Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997).

Motion to Disclose Informant=s Identity

The State may refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law.  See Tex. R. Evid. 508.  Rule 508(c)(2) compels disclosure of an informant if the informant=s testimony may be necessary to a fair determination of guilt or innocence in a criminal case.  Id.  If the State refuses to disclose the informant=s identity in such a case, Rule 508 mandates dismissal of the criminal charges upon the defendant=s motion.^[1] Id.  Appellant=s first and second issues assert trial counsel performed deficiently by failing to move for disclosure of the State=s confidential informant pursuant to Rule 508 or to advise him of his right to request disclosure, thus rendering his guilty plea involuntary.  Appellant testified at the habeas hearing that if he had understood this aspect of the law, he would have insisted that his lawyer file a proper motion to disclose the informant=s identity and he would not have entered a plea prior to a obtaining a ruling on the motion.

Appellant claims his trial counsel, William McClellan, performed deficiently because McClellan did not understand the potential for dismissal of appellant=s case under Rule 508 if the State refused to disclose the informant=s identity.  Appellant argues McClellan erroneously believed that when the State fails to comply with a request for the disclosure of a material witness, Rule 508 only prohibits the State from calling the informant as a witness.  The record does not support this allegation.  McClellan correctly testified to the ramifications under Rule 508 of the State=s failure to disclose a confidential informant who was present at the offense or arrest.

Appellant further argues that if McClellan did understand Rule 508, he still  performed deficiently because he knew the potential of getting the case dismissed, yet failed to file a motion to disclose the confidential informant.   McClellan testified he did not pursue disclosure of the informant because he already had access to the information: appellant had told him appellant knew the informant=s name, phone number, and address.   Appellant testified to the contrary, that in fact he did not know the informant=s identity, nor had he ever told McClellan he did.  The trial court resolved this credibility issue against appellant, and we defer to the trial court=s determination because it is supported by the record.  Ex parte Elizondo, 947 S.W.2d 202, 212 (Tex. Crim. App. 1996).  

We conclude McClellan=s failure to file a motion to disclose the informant was a strategic decision; McClellan had no need to file a motion to disclose what he already knew.  See Flournoy v. State, No. 05‑95‑01468‑CR, 1997 WL 752562, at *7 (Tex. App._Dallas Dec. 8, 1997, no pet.) (not designated for publication) (counsel not deficient for not filing motion to discover identity of confidential informant where appellant had informant=s name prior to trial); Gonzales v. State, No. A14‑89‑00706‑CR, 1990 WL 59514, at *2 (Tex. App.CHouston [14th Dist.] May 10, 1990, no pet.) (not designated for publication) (defense counsel=s failure to move for disclosure of informant was not ineffective assistance, due in part to no evidence showing counsel lacked knowledge of informant=s identity). 

McClellan also testified he did not move for disclosure under Rule 508 because A[a]t the time, we felt it wasn=t something we needed to do.@  No follow-up questions were asked at the habeas hearing to further elaborate on McClellan=s strategy.  It is possible McClellan consulted with appellant and determined that production of the informant would not provide any favorable evidence.  See Dickey v. State, No. 14-95-00263-CR, 1998 WL 43212, at *3 (Tex. App.CHouston [14th Dist.] Feb. 5, 1998, no pet.) (not designated for publication) (failure to move for disclosure of informant was not deficient performance because counsel might have informally learned informant=s identity and concluded informant=s testimony would not be beneficial). Thus, under Strickland, we presume that counsel Amade all significant decisions in the exercise of reasonable professional judgment.@  Strickland, 466 U.S. at 690.  Appellant has failed to show counsel performed deficiently.

Appellant has also failed to show that, but for counsel=s alleged failure to move for disclosure or advise appellant of his right to request disclosure of the informant, appellant would not have pleaded guilty but would have gone to trial.  Appellant theorizes that if McClellan had moved for disclosure of the informant=s identity under Rule 508, and if the State had refused, his case would have been dismissed.  However, appellant=s speculation about what the State may have done does not suffice to show that counsel=s conduct had a prejudicial effect on the outcome of the proceeding or that appellant would not have pleaded guilty.  See Ex parte Cash, 178 S.W.3d 816, 818B19 (Tex. Crim. App. 2005).  Any allegation of ineffectiveness must be firmly rooted in the record, Thompson, 9 S.W.3d at 814, and here the record lacks any evidence indicating the State would have refused to disclose the informant=s identity.  See Passmore v. State,  617 S.W.2d 682, 685 (Tex. Crim. App. 1985) (counsel was not deficient for failing to file discovery motion where defendant could only speculate as to matters that could have been revealed by virtue of filing such a motion).  In addition, appellant claims only that he would have waited until the trial court ruled on the motion to enter a plea, as opposed to stating that he would not have pleaded guilty at all.  Consequently, we cannot conclude the result of the proceeding would have been any different had McClellan requested disclosure of the informant or informed appellant about his right to request disclosure.  See Tabora v. State, 14 S.W.3d 332, 337 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (misinformation from counsel about defendant=s eligibility for deferred adjudication did not render plea involuntary because record did not indicate that but for counsel=s errors, defendant would have insisted on going to trial instead of entering plea).

Because appellant has not shown that counsel=s failure to file a motion to disclose was ineffective or that his plea was involuntary, the trial court did not abuse its discretion in denying appellant=s application for a writ of habeas corpus on this basis.  We overrule appellant=s first and second issues. 

Motion to Reweigh Marihuana

Appellant claims in his third and fourth issues that counsel=s failure to request that the marihuana be cleansed of any ungerminated seeds and stalks and reweighed resulted in ineffective assistance and rendered his plea involuntary.  He claims this failure prejudiced the outcome of the proceeding because removal of the seeds and stalks could have resulted in a lesser offense.

Trial counsel is charged with making an independent investigation of the facts of the case.  McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).  Ordinarily, counsel should not blindly rely on the veracity of either his client=s version of the facts or witness statements in the State=s file, but the duty to investigate is not categorical.  Id.  Counsel has a duty to make reasonable investigations or to make reasonable decisions that make particular investigations unnecessary, and we apply a heavy measure of deference to counsel=s judgments.  Strickland, 466 U.S. at 691.  This burden will vary depending upon the complexities of the case, the plea to be entered by the accused, and the punishment that may be assessed.  See Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim. App. 1978).

Approximately 5.1 pounds of marihuana were at issue in this case.  Ungerminated seeds and stalks are excluded from the definition of marihuana by statute.  See Tex. Health & Safety Code Ann. _ 481.002(26) (Vernon 2007).  Appellant testified to having seen seeds and stalks in the marihuana, and he also submitted an affidavit from a licensed investigator stating that commercial grade marihuana often consists of twenty percent seeds and stalks by weight. Appellant contends cleansing the marihuana of the seeds and stalks would have resulted in a weight of less than five pounds, thereby reducing the charge from a third-degree felony punishable by two to ten years= confinement to a state jail felony punishable by two to five years.  Appellant argues that by failing to investigate the facts and communicate with appellant concerning his right to request that the marihuana be cleansed and reweighed, his trial counsel performed deficiently and, as a result, his guilty plea was involuntary.

According to the record, McClellan satisfied his duty to make a reasonable investigation of the facts of the case to ensure appellant entered his plea knowingly and voluntarily.  McClellan met with appellant two or three times and familiarized himself with appellant=s case.  McClellan relied in part on the lab report approximating the amount of marihuana at 5.1 pounds, but he also testified appellant did not provide additional information indicating further investigation was necessary.  See Toupal v. State, 926 S.W.2d 606, 608 (Tex. App._Texarkana 1996, no pet.) (guilty plea not involuntary due to counsel=s failure to determine whether laboratory report correctly reported substance as cocaine where nothing in record suggested a thorough factual investigation would have revealed information defendant did not tell counsel at time of guilty plea); Gonzales v. State, No. 04-98-00524-CR, 1999 WL 191583, at *4 (Tex. App.CSan Antonio 1990, no pet.) (not designated for publication) (counsel=s investigation was sufficient where he relied on information obtained from State=s evidence and defendant did not provide additional information indicating further investigation was needed).

Viewing McClellan=s actions from his perspective at the time of the plea proceeding,^[2] we cannot say his failure to request that the marihuana be cleansed and reweighed fell below an objective standard of reasonableness.  See Schumacher v. State, 72 S.W.3d 43, 48 (Tex. App.CTexarkana 2001, pet. ref=d) (in light of defendant=s guilty plea and fact that counsel met with defendant and discussed charges, counsel=s limited efforts to investigate were not inappropriate).  Accordingly, we find appellant has failed to show that McClellan performed deficiently by not filing a motion to have the marihuana reweighed or advising appellant of this option.

Even if McClellan should have filed the motion to reweigh or advised appellant about the motion, appellant has not shown a reasonable probability that but for his counsel=s deficient performance, the outcome of the proceeding would have been different.  Assuming for argument=s sake that the marihuana did contain seeds and stalks, appellant has not produced evidence showing the lab itself did not remove the seeds and stems prior to weighing it.  Nor has appellant shown that reweighing the marihuana would have actually resulted in a weight of less than five pounds and therefore a lower offense.^[3]

Based on the record before us, we cannot say that McClellan=s failure to move to reweigh the marihuana or to so advise appellant fell below an objective standard of reasonableness.  Nor can we say appellant has shown a reasonable probability that but for McClellan=s failure to file a motion or advise appellant of his right to request that the marihuana be reweighed, the result of the proceeding would have been different.  See Tabora, 14 S.W.3d at 337.  Because appellant has not satisfied either prong of the Strickland test for ineffective assistance of counsel or shown that his plea was involuntary, we overrule appellant=s third and fourth issues. 

The trial court=s judgment is affirmed.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed November 20, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Because the informant was present at both the drug deal and appellant=s arrest, he was an eyewitness to the charged offense, thus triggering the procedural requirements of Rule 508(c)(2).  Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991).

^[2]  McClellan also testified regarding his strategy, stating that he did not file a motion to have the seeds and stalks removed because Aat the time we did not feel like it was relevant.@  McClellan testified further that an open warrant for appellant in Dallas County, pending at the same time as the plea proceeding, factored into the decision to accept the State=s offer of deferred adjudication. McClellan testified that based on the information provided to him by appellant, by the State, through the lab report, and through his investigation, he felt the State=s plea bargain of five years= community supervision for a third-degree felony was appellant=s best option.

^[3]  Appellant relies on Garcia v. State, No. 04-96-00932-CR, 1998 WL 2540, at *5 (Tex. App.CSan Antonio Jan. 7, 1998, pet. ref=d) (not designated for publication), in support of his position that when the weight of the seized marihuana falls near the weight for a lesser offense, failure to file a motion to reweigh the marihuana without the seeds and stalks prejudices the defendant by resulting in a higher sentence than he might otherwise have received.  Appellant=s reliance on this case is misplaced.  In Garcia, the court found appellant=s lawyer was not ineffective for failing to have the marihuana weighed without the stalks and seeds.  The court noted:

Picking out the stems and seeds would have been appropriate if the seized marihuana had weighed closer to 50 pounds, but the marihuana weighed 69 pounds.  To support a lesser offense, the seeds and stems would have had to weigh at least 20 pounds.  This is unlikely.  Failure to reweigh is not ineffective assistance if reweighing would not help the defendant=s case.

Id. at *5. However, even if a motion to reweigh the marihuana would have been more appropriate in this case than in Garcia, appellant has not demonstrated that the lab did not remove the seeds and stalks prior to weighing or that reweighing the marihuana without them would have resulted in a weight of less than five pounds and therefore a lesser offense.  As a result, even if appellant could satisfy the first prong of the Strickland test, he cannot establish a reasonable probability that the outcome of the proceeding would have been different.  See Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999).