Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00252-CR

                                            Luis SANCHEZ,
                                                Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR6545
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 20, 2016

AFFIRMED

           Luis Sanchez pled nolo contendere to indecency with a child by contact and was sentenced

to eight years’ confinement. Sanchez filed a motion for new trial, alleging ineffective assistance

of counsel. Following a hearing on the motion, the trial court denied his request for a new trial,

but granted Sanchez permission to appeal. In two issues on appeal, Sanchez asserts (1) trial

counsel was ineffective and (2) his plea was involuntary based upon counsel’s ineffective

representation. We affirm.
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                        INEFFECTIVE ASSISTANCE OF COUNSEL

       On appeal, Sanchez asserts his trial counsel was ineffective because his seven-page case

file was devoid of any motions, correspondence, notes, case law, photos, or any evidence of an

investigation; Sanchez entered his plea less than thirty days after counsel filed a notice of

appearance and counsel never met with Sanchez during the time between filing the appearance

and entry of the plea; no motions were filed, no investigator was hired, and no investigation was

conducted; no subpoenas were issued for medical, school, or CPS records; his plea of nolo

contendere was involuntary; and no witnesses were called at the sentencing hearing. Based on

these complaints, Sanchez contends counsel was per se ineffective.

A.     Standard of Review

       Sanchez made his claim of ineffective assistance of counsel in a motion for new trial. We

review a trial court’s ruling on a motion for new trial for an abuse of discretion, “reversing only if

the trial judge’s opinion was clearly erroneous and arbitrary.” Riley v. State, 378 S.W.3d 453, 457

(Tex. Crim. App. 2012). A trial court abuses its discretion if no reasonable view of the record

could support the trial court’s ruling. Id. Under this deferential standard, we view the evidence in

the light most favorable to the trial court’s ruling. Id. We may not substitute our own judgment

for that of the trial court, and must uphold the trial court’s ruling if it is within the zone of

reasonable disagreement. Id. “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Id.

       To prevail on an ineffective assistance of counsel claim, a defendant must prove, by a

preponderance of the evidence, that (1) counsel’s performance was deficient, i.e., counsel’s

assistance fell below an objective standard of reasonableness, and (2) he was prejudiced by

counsel’s deficient performance, i.e., a reasonable probability that but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S.
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668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Failure to make

a showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim.

Thompson, 9 S.W.3d at 813.

       Appellate courts indulge in a strong presumption that counsel’s conduct fell within the

wide range of reasonable assistance and that the complained-of action or omission might be

considered sound trial strategy. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).

“The mere fact that another attorney might have pursued a different tactic at trial does not suffice

to prove a claim of ineffective assistance of counsel.” Id. “The Strickland test is judged by the

‘totality of the representation,’ not by counsel’s isolated acts or omissions, and the test is applied

from the viewpoint of an attorney at the time he acted, not through 20/20 hindsight.” Id. Thus,

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

affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. However,

although appellate courts are hesitant to “‘designate any error as per se ineffective assistance of

counsel as a matter of law,’” it is possible that a single egregious error of omission or commission

by [trial] counsel constitutes ineffective assistance.” Id. (internal citation omitted).

B.     Evidence at New Trial Hearing

       At the new trial hearing, trial counsel, Sanchez, and Sanchez’s father testified. Sanchez’s

trial counsel, Jeffery Linick, testified he is a self-employed criminal defense attorney, who was

first licensed to practice law in Illinois in 2007 and was later licensed in Texas in 2010. He said

he had handled four indecency with a child by contact cases as lead counsel, although none were

tried before a jury or to the bench. Linick acknowledged he filed his notice of appearance on

January 20, 2015, and Sanchez entered his plea on February 18, 2015. Linick admitted he filed no

motions on Sanchez’s behalf and that “there wasn’t a strategy involved by [not] filing the motions.”

He also admitted he did not file a motion to suppress the outcry statement or a motion for a witness
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list, and he did not request an investigator. Linick stated “the strategy was not to challenge the

outcry statement”; instead, “the strategy was one of inconsistencies or contradictions in the

statements that the witness gave.”

       Linick admitted there was no strategy for not retaining an investigator or having subpoenas

issued. And, he conceded he did not obtain telephone records of texts that, allegedly, showed the

complainant’s mother saying “I’m going to get you.” Nor did he investigate the mother’s

background, which, allegedly, contained a theft by check case and a burglary case. Because

Sanchez and the complainant’s mother were in the process of divorcing when the abuse allegations

were made, Linick agreed there was a motive to fabricate the allegations. However, he testified

the defense was to present Sanchez’s alibi and he had documents that would demonstrate Sanchez

was not in the county on some of the dates alleged by the witness. He explained he did what was

relevant to the alibi strategy, and “things that weren’t relevant weren’t done.”

       Linick said he was aware that Sanchez’s father and fiancé both wanted to testify. Linick

said he spoke to both of them, and he told them the original date of the sentencing hearing had

been reset. However, Linick admitted he later refused to return the family’s telephone calls

because the family became threatening.

       When asked whether he was aware that Sanchez had cirrhosis of the liver, but he

nevertheless failed to present any mitigating medical evidence at sentencing, Linick replied that

the information was contained in the pre-sentencing investigation report (“PSI”). When asked

what strategy he had for asking that Sanchez be placed in a substance abuse felony placement

facility even though sex offenders are not eligible, Linick said there was no strategy but he

explained he wanted Sanchez’s underlying substance abuse problems to be clear to the court and

if Sanchez was ever released from prison, it would be best to address those issues now. Based on



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Sanchez’s medical condition, Linick said he also raised the issue of whether Sanchez would

survive the prison term.

         Regarding the PSI, Linick said that although Sanchez denied committing the offense,

Linick told Sanchez he would be interviewed before entering the plea and “we didn’t want to look

like we were ducking responsibility for this.” Linick said he told Sanchez “we didn’t want to look

like we’re going to – that you’re trying to minimize what happened, it would look bad, that would

certainly be reflected in the PSI, and the judge would hold that against him.”

         On cross-examination by the State, Linick testified he did not coerce Sanchez into entering

a plea of no contest, and both he and the trial court advised Sanchez of his rights to proceed to trial

and to confront witnesses. Linick said Sanchez voluntarily waived his rights. When asked if he

explained the specifics of the plea agreement to Sanchez, Linick replied:

         Yes. In fact, that was a big component of it because the whole issue of entering the
         plea was there was the threat and the possibility of having the case re-indicted as a
         continuing offense which would raise the minimum range of punishment to 25
         years. So, it was actually a very lengthy discussion about the potential punishment
         both as it was indicted and pled and as it could have been re-indicted. 1

         Linick also denied telling Sanchez the most he could receive in punishment would be

“rehab,” and he extensively discussed the range of punishment to include deferred adjudication

and prison time. 2

         Linick testified the case was originally set for trial and they had a reasonable defense, but

on the morning of trial, he and Sanchez discussed the possibility that the State would dismiss the

case and re-indict him. Linick explained:




1
 Linick later explained he meant “threat” metaphorically, and at no time did the State or any agent of the State threaten
Sanchez into entering the plea.
2
 Sanchez filed an application for deferred adjudication or community supervision, which the trial court denied.
Sanchez does not challenge this ruling on appeal.

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       Given that as it was currently indicted, we had an offer on the table that would —
       that would give [Sanchez] a cap. The cap would be lower than what the minimum
       offense would be. And, you know, we had a very lengthy discussion about the
       relative merits of proceeding under that strategy versus taking the huge leap of
       rolling the dice on a trial and the minimum might be 25 years.

       When asked whether Sanchez understood the nature of the discussion the two had

regarding a plea deal, Linick responded that he had “the sense that Mr. Sanchez understood the

nature of what I was saying. He was able to respond to me. We had – we had a back and forth

conversation about it. I didn’t get the sense that he didn’t – didn’t understand the implications.”

When asked if Sanchez understood the charges he faced, Linick responded that Sanchez knew the

charges and “[i]n fact, he was the one that was quite able to assist me in – in getting the

documentation for the defense.” Linick stated he would not have allowed Sanchez to enter a plea

unless Sanchez understood the plea, the admonitions, and the potential punishment. Also, Linick

said that prior to entering the plea, both he and Sanchez understood and knew what evidence the

State would present in its case-in-chief. He testified Sanchez understood that with a plea of nolo

contendere, the State needed to introduce evidence of the offense, the court “would almost

certainly make a finding of guilt,” and the “real fight would be over what the sentence should be.”

       After the plea, Linick said he reviewed the PSI and appealed to the trial court to reduce the

sentence if the court denied Sanchez’s application for deferred adjudication. Linick said the court

gave Sanchez the opportunity to present evidence on his behalf. However, when the court asked

Sanchez if he had anything to offer, Sanchez replied that he did not. When the trial court followed

up by telling Sanchez “[n]ow is your chance[,] [w]hat do you want to tell me,” Sanchez replied, “I

just — you know, just the chance to go live my life like I was planning to.”

       Sanchez’s father, Luis Sanchez, Sr., testified at the new trial hearing that he did not appear

at his son’s sentencing hearing because Linick did not tell him the hearing had been rescheduled

to a new date. However, Luis admitted his son did not call him to tell him the new date. Luis said
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if he had known the date, he would have appeared and “said favorable things” about his son. Luis

was not asked to elaborate on what he would have said.

C.      Conclusion

        We first note that “mere brevity of [client] consultation” does not by itself establish a claim

of ineffective assistance of counsel, see Ex parte Duffy, 607 S.W.2d 507, 518 (Tex. Crim. App.

1980), overruled on other grounds by Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999);

and Sanchez has failed to explain how more time with his attorney would have yielded a different

result at trial. Second, “[t]he failure to file pre-trial motions is not categorically deemed ineffective

assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his

trial strategy.” Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001, pet. ref’d);

see also Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (reiterating trial “[c]ounsel

is not required to engage in the filing of futile motions”). In this case, Sanchez complains about

Linick’s failure to file a motion for a witness list and a motion to suppress the outcry statement.

Linick admitted he did not file these motions, but he explained his strategy was to not challenge

the outcry and, instead, challenge inconsistencies or contradictions in the testimony.

        Third, as to Sanchez’s complaint regarding Linick’s failure to request an investigator,

conduct an investigation, or subpoena records, Linick explained the defense strategy was to present

Sanchez’s alibi and he had the necessary documents to show Sanchez was not in the county on

some of the dates alleged by the complainant. Finally, Sanchez has failed to direct this court to

evidence that his fiancé (who did not appear or testify at the new trial hearing) was available to

testify or to evidence that his father’s and fiancé’s testimony would have benefitted him during the

sentencing hearing. To obtain relief on an ineffective assistance of counsel claim based on

uncalled witnesses, the appellant must show the witnesses were available to testify and their

testimony would have been of some benefit to the defense. Ex parte White, 160 S.W.3d 46, 52
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(Tex. Crim. App. 2004). In this case, we will not presume the fiancé was available or that her

testimony or the testimony of Sanchez’s father would have benefitted the defense.

       On this record, we must conclude Sanchez failed to show, by a preponderance of the

evidence, that counsel’s performance was deficient, i.e., counsel’s assistance fell below an

objective standard of reasonableness.

                                VOLUNTARINESS OF PLEA

       In his second and final issue on appeal, Sanchez asserts Linick rendered ineffective

assistance of counsel because counsel misled Sanchez into believing that the “most he could

receive was rehab,” and because Linick asked that Sanchez be placed in a substance abuse felony

placement facility despite being ineligible for such a placement. Sanchez contends Linick

demonstrated “an obvious failure to understand the legal principles and applicable law involved in

this type of case.” Sanchez alleges the psychological pressure of being re-indicted and facing

twenty-five years to life acted upon him in such a way as to make his plea involuntary.

A.     Standard of Review

       When an appellant challenges the voluntariness of a plea entered upon the advice of

counsel, contending that his counsel was ineffective, “the voluntariness of the plea depends on (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, he

would not have pleaded guilty and would have insisted on going to trial.” Ex Parte Morrow, 952
S.W.2d 530, 536 (Tex. Crim. App. 1997); see also Ex parte Barnaby, 475 S.W.3d 316, 324 (Tex.

Crim. App. 2015).

       A record indicating the trial court properly admonished the defendant presents a prima

facie showing that the plea was made voluntarily and knowingly. Martinez v. State, 981 S.W.2d
195, 197 (Tex. Crim. App. 1998); Rodriguez v. State, 933 S.W.2d 702, 705 (Tex. App.—San
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Antonio 1996, pet. ref’d). If the record establishes the trial court properly admonished the

defendant, the burden shifts to the defendant to show he entered the plea in question without

understanding its consequences. Martinez, 981 S.W.2d at 197; Rodriguez, 933 S.W.2d at 706.

When a defendant states at the plea hearing that he understands the nature of his plea and it is

voluntary, he then has a heavy burden to show the plea was involuntary. Id. However, a plea is

not voluntary if the defendant did not receive effective assistance of counsel because the choice to

enter the plea was not an informed choice. Labib v. State, 239 S.W.3d 239, 332 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).

B.      Evidence at New Trial Hearing

        At the new trial hearing, the trial court had the transcript of the plea hearing during which

the trial court admonished Sanchez about the range of punishment attached to the offense; told

Sanchez the recommendation of the prosecuting attorney as to punishment was not binding on the

court; asked Sanchez if he understood the plea agreement; informed Sanchez that if the court

followed the agreement, there was no appeal; explained the length of sentence to be served before

becoming eligible for parole; and confirmed Sanchez had spoken to his attorney about compliance

under the Texas sex offender registration program. 3 Sanchez replied affirmatively when the trial

court asked if he understood the court would find him guilty under the no contest plea if the

evidence was sufficient. Sanchez answered “no” when the court asked if anyone had forced him

“in any manner.” In addition to the verbal admonishments, Sanchez signed an “Admonishment

and Defendant’s Waivers and Affidavit of Admonishments.” Finally, the trial court twice

informed Sanchez that deferred adjudication was “outside the agreement.” We conclude the record

establishes by prima facie evidence that Sanchez’s plea was entered voluntarily. See TEX. CODE


3
 On appeal, Sanchez does not complain he was not properly admonished by the trial court under Texas Code of
Criminal Procedure article 26.13.

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CRIM. PROC. ANN. art. 26.13(a) (West Supp. 2015). Therefore, the burden shifted to Sanchez to

demonstrate his plea was involuntary.

       At the new trial hearing, Sanchez testified he and Linick discussed defenses, and when he

went before the trial court to plead, Linick told him “to follow his lead and to — not to worry.”

According to Sanchez, Linick said he would “try to get probation and the most [the State] can —

the most they can give . . . is rehab.” Sanchez admitted Linick did not tell him he would get

probation, but instead, that is what Linick “was fighting for.” However, Sanchez insisted Linick

told him the “most they can give me is rehab,” and he did not know he would be sentenced to

prison. Sanchez testified Linick told him he had to take the plea offer or the State would re-indict

him. As a result, Sanchez said he felt “pressured” and he “had to sign” the plea deal. Sanchez

said he wanted to plead not guilty.

       Sanchez testified he could read, but did not understand what he read. However, he said he

understood his application for deferred adjudication and community supervision meant he was

applying for probation. But as to the other paperwork, such as the waiver and consent to

stipulations of testimony, he said he did not understand what he was signing and he did not read

all the paperwork, he just “signed everything real quick” because he was told he would get

probation or “rehab.”

       On cross-examination, the State introduced into evidence the transcript from the sentencing

hearing at which Sanchez acknowledged he was waiving his right to a jury, each allegation was a

second degree felony with a minimum of two to twenty years’ confinement and an optional fine,

and he told the judge he understood the plea agreement. Sanchez insisted he was merely saying

“yes, sir, yes, sir” because he did not understand. However, Sanchez admitted he had an extensive

criminal history; he had, in the past, entered into other plea agreements; and he had, in the past,



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been given probation and been sentenced to county jail. Sanchez admitted he knew that when

entering into a plea agreement, he could get probation or jail time.

        The State also showed Sanchez a copy of the PSI in which, when asked why he did not

take his case to trial, he responded he chose not to because he was accustomed to being judged by

the way he looks—facial tattoos—and he did not believe a jury would consider him sincere.

Sanchez answered “yes” when asked if he weighed the risks with his attorney and decided that

entering into a plea was a better idea than taking the case to trial. Nevertheless, Sanchez insisted

he did not commit the alleged offense and that is why he did not accept any responsibility. 4

        Linick was asked about his previous characterization of the “threat” of re-indictment and

he responded that when he spoke to the prosecutor, he presented evidence showing the State would

have difficulty establishing some of the dates in the indictment. Based on this conversation, Linick

said the State would not proceed that day with trial; instead, the State intended to dismiss the

indictment and re-indict Sanchez. Linick thought it would be “more difficult to defend under the

new indictment because the State [did not] have to prove exact dates, and so the defense would be

weakened [and] the potential punishment would be dramatically increased.” Linick believed he

raised enough weaknesses in the indictment that the State intended to dismiss the indictment and

re-indict Sanchez “no matter what.” However, Linick believed that if Sanchez pled before the

State dismissed the indictment, then his plea would fall under the old indictment, which included

a lower punishment range.




4
  During the sentencing hearing, the State asked the court to deny Sanchez’s application for deferred adjudication
because “[i]n no way, shape or form has Mr. Sanchez ever accepted responsibility,” nor has he accepted or
acknowledged his guilt “in any way.”

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C.      Conclusion

        In analyzing the voluntariness of Sanchez’s plea and whether Linick was ineffective, we

note that Sanchez was admonished orally and in writing; and Sanchez signed the admonishments

acknowledging that he understood them and was aware of the consequences of his plea, and had

not been threatened, coerced, or placed in fear by any person to induce him to enter the plea.

Sanchez also stated at the plea hearing that he understood the consequences of his plea. The trial

court told Sanchez that deferred adjudication was “outside the agreement.” We also note the trial

court could have found Sanchez understood the plea process based upon his prior criminal history.

        As the sole factfinder and judge of the credibility and weight of each piece of evidence, the

trial court was entitled to accept or reject any part of Sanchez’s or Linick’s testimony. Odelugo v.

State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014). The trial court could disbelieve any of the

assertions upon which Sanchez’s ineffective assistance of counsel claims are based, “so long as

the basis for that disbelief is supported by at least one ‘reasonable view of the record.’” Id. (citation

omitted). “This is true even when the State does not deign to controvert the evidence, affidavit or

otherwise, that the appellant presents.” Id. In this case, if the trial court did not accept Sanchez’s

account of the events leading up to his plea as credible, the court would have acted within its

discretion to find that Sanchez failed to carry his burden to establish that trial counsel was

ineffective.

        As to Sanchez’s claim that he felt pressured to enter the plea on the day trial was to

commence because Linick told him he had to take the plea offer or the State would re-indict him,

“[a]n attorney advises a client based upon an evaluation of numerous factors and considerations.”

Ex parte Niswanger, 335 S.W.3d 611, 616 (Tex. Crim. App. 2011), abrogated on other grounds

by Cornwell v. State, 471 S.W.3d 458 (Tex. Crim. App. 2015). In Niswanger, the Court of

Criminal Appeals noted that trial counsel “had to balance, inter alia, two important issues: the
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uncertainty of trial and the possible range of punishment.” Id. (concluding “it was reasonable for

Counsel to determine it prudent to advise a guilty plea in exchange for 10 years’ imprisonment, 15

years less than the minimum sentence that could be imposed if he was found guilty at trial”). The

same can be said here. Linick knew—and told Sanchez—that the State intended to re-indict him

and the re-indictment carried a higher sentence. Therefore, taking the offered plea meant a lower

punishment range. Also, “the record supports that [Sanchez] was agreeable to Counsel’s plea

advice and voluntarily followed the advice.” Id.

       On this record, we conclude Sanchez has not proven that counsel’s representation fell

below the objectively reasonable standard. Therefore, he failed to demonstrate that his plea of

nolo contendere was unknowingly or involuntarily made because of ineffective assistance of trial

counsel.

                                        CONCLUSION

       We overrule Sanchez’s issues on appeal and affirm the trial court’s judgment.


                                                   Karen Angelini, Justice

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