Orson v. State, No. 03-04-00089-CR (TX 2/17/2005)
| Decision Date | 17 February 2005 |
| Docket Number | No. 03-04-00089-CR,03-04-00089-CR |
| Parties | SCOTT LEE ORSON, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
Appeal from the District Court of Bell County, 264th Judicial District, No. 55,019, Honorable Joe Carroll, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices B. A. SMITH and PURYEAR.
Scott Lee Orson appeals his conviction for the offense of forgery, for which he was sentenced to eight months in state jail. Tex. Pen. Code Ann. § 32.21(d) (West Supp. 2004-05). On appeal, Orson contends that his trial attorney's failure to investigate the facts and circumstances giving rise to the indictment denied him effective assistance of counsel. Specifically, Orson contends that, had his trial counsel investigated the circumstances of the alleged forgery, he would have discovered that if Orson was guilty of any offense, it was theft and not forgery. For the reasons that follow, we affirm the judgment of the trial court.
Scott Orson was indicted for forgery on July 9, 2003. The indictment alleged that Orson forged a check in the amount of $277.30 by altering the check in such a manner that it purported to be the act of authorized signatories of Netweb Designs, Inc. Orson admits that he fabricated the names of both signatories on the check (James Tidwell and James Strauss) and the company Netweb Designs and otherwise "manipulat[ed]" the check, but he maintains that because he was an authorized user of the credit card account on which the checks were drawn, he had no intent to defraud—a required element of forgery.1 In addition, he asserts that he had altered several checks in such a manner in the past and that they had all been paid in full. Orson claims that the only reason the check in question did not clear was that his mother, the other authorized signatory on the account, had closed the account without his knowledge before the check was cashed. Orson had not been in contact with his mother for at least nine months prior to the events at issue in this case and had not personally made any payments on the credit card account for that amount of time. He had not received any statement for the account, as they were apparently being sent to his mother.
On October 8, 2003, Orson pleaded guilty to forgery. In the sentencing phase of the hearing, however, Orson made comments raising a question as to whether he believed he was guilty, and the trial judge allowed the plea to be withdrawn. On November 25, 2003, Orson entered another plea of guilty without a plea agreement. During this hearing, Orson testified that he had discussed the charges in the indictment with his counsel, Richard O. Harris; Orson said he understood the charges, understood the punishment range for the charged offense, was mentally competent, voluntarily waived a jury trial, and was freely and voluntarily pleading guilty because he was guilty of the offense as charged in the indictment and for no other reason. Having thus testified, Orson was found guilty, and was sentenced to eight months in state jail.
Orson subsequently retained new counsel, James H. Kreimeyer, and filed a motion for new trial. In his motion, Orson alleged that Harris, his previous trial counsel, had rendered ineffective assistance by not fully investigating the facts and circumstances that led to the charge of forgery.
At the hearing on the motion for new trial, Orson, Orson's mother, and Harris testified. The district court denied the motion. Orson now appeals the conviction and asks that the judgment be set aside and the cause remanded to the trial court for a new trial.
By his sole issue on appeal, Orson contends that he was denied his right to effective assistance of counsel because his trial counsel failed to fully investigate the circumstances that gave rise to the indictment before the November hearing at which Orson pleaded guilty. For a plea of guilty to be accepted by the court, it must be knowingly and voluntarily given by a mentally competent defendant. Tex. Code Crim. Proc. Ann. art. 26.13(b) (West 2003); see Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). In determining whether the plea was entered voluntarily and knowingly, the court considers whether counsel rendered effective representation for the defendant during the proceeding. Toupal v. State, 926 S.W.2d 606, 607 (Tex. App.-Texarkana 1996, no pet.). In order to prevail on a claim alleging ineffective assistance of counsel in the plea process, a defendant must prove by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 688, 687 (1984); Battle, 817 S.W.2d at 83. In showing that his defense was prejudiced, the appellant must demonstrate that, but for counsel's deficient advice, "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) (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). When the alleged error of trial counsel is a failure to investigate or discover potentially exculpatory evidence, whether or not the failure "prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led the attorney to change his recommendation as to the plea," which depends "in large part on a prediction that the evidence likely would have changed the outcome of a trial." Castellano v. State, 49 S.W.3d 566, 576 (Tex. App.-Corpus Christi 2001, pet. ref'd) (citing Hill, 474 U.S. at 59). A strong presumption exists "that counsel's actions fell within the wide range of reasonably professional assistance," Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000), and judicial review of a defendant's ineffective assistance claim must therefore be highly deferential to trial counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
Orson asserts that his trial counsel was ineffective because of his failure to fully ascertain whether all the elements of a forgery were present before he allowed his client to enter a plea of guilty. Specifically, Orson states that an issue as to whether he had an "intent to defraud" arose from his testimony at the October hearing and resulted in the withdrawal of his first guilty plea. Orson claims that this testimony should have alerted Harris that there was exculpatory evidence that needed to be further investigated before he could determine whether Orson should plead guilty to forgery. Orson asserts that Harris did not perform this additional investigation because, if he had, he would have discovered that Orson had committed theft, a misdemeanor, not forgery.2 As evidence of trial counsel's alleged failure to investigate, Orson points to testimony obtained at the hearing on the motion for new trial in which Harris stated that, although he had discussed with Orson's mother the fact that the check in question was drawn on an account of which he was an authorized user, he had not researched the law initially to determine if the facts of the particular case satisfied the elements of forgery.
Because the decision to plead guilty is the personal decision of the accused, Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985), the duty of counsel when a plea of guilty is entered is to ascertain whether the plea is being entered knowingly and voluntarily. Butler v. State, 499 S.W.2d 136, 139 (Tex. Crim. App. 1973). When a defendant enters a guilty plea knowingly and voluntarily, "counsel need not undertake the same magnitude of independent factual investigation . . . as would be required in a contested proceeding." Valle v. State, 963 S.W.2d 904, 910 (Tex. App.-Texarkana 1998, pet. ref'd). Although "[c]ounsel is required to determine whether any defenses to the commission of the crime may exist so counsel may protect the client's rights, . . . when no possible defenses appear, counsel is not required to pursue the investigation to the extent he or she would to prepare for a trial." Toupal, 926 S.W.2d at 608.
With respect to the investigation performed by trial counsel, Harris testified at the hearing on the motion for new trial ...
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