Full Opinion (html_with_citations)

                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


    DONALD LYNN GOODWIN,                                   §                   No. 08-23-00092-CR

                                     Appellant,            §                      Appeal from the

    v.                                                     §              266th Judicial District Court

    THE STATE OF TEXAS,                                    §                 of Erath County, Texas

                                     Appellee.             §                  (TC#22CRDC-00005)


                                       MEMORANDUM OPINION 1

         Appellant Donald Lynn Goodwin entered an open plea of guilty to two counts of

aggravated assault with a deadly weapon, enhanced. The trial court found him guilty and assessed

punishment at 40 years imprisonment, as to each count, with sentences running concurrently. In a

single issue, Goodwin claims he received ineffective assistance of counsel. We affirm.

                                                BACKGROUND

         Goodwin was originally indicted on three counts of aggravated assault with a deadly

weapon. The State alleged that, while he was recklessly fleeing law enforcement, Goodwin caused

bodily injury to three individuals by striking the motor vehicle they occupied with the motor

vehicle he operated. After waiving his right to a jury trial as to guilt and punishment, Goodwin


1
  This case was transferred from the Eastland Court of Appeals pursuant to the Texas Supreme Court’s docket
equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of that court to the extent it might
conflict with our own. See TEX. R. APP. P. 41.3.
entered an open plea of guilty to two counts of aggravated assault with a deadly weapon. 2 He

additionally entered a plea of true to enhancement allegations of a prior conviction of evading

arrest or detention with a vehicle. Goodwin elected to have his punishment assessed by the trial

court and the trial court held a hearing on punishment. On March 21, 2023, the trial court entered

a judgment of conviction sentencing Goodwin to 40 years confinement for each count, and with

sentences running concurrently.

        On March 22, Goodwin filed a motion for new trial asserting “[t]he [c]ourt’s verdict is

contrary to the law and evidence.” With this Court, Goodwin also filed his notice of appeal. That

same day, the trial court entered an order denying his motion for new trial. On March 31, Goodwin

filed a purported amended motion for new trial asserting ineffective assistance of counsel at the

plea-bargaining phase, asserting his counsel had failed to timely convey to the State his acceptance

of its plea offer of 15 years. Though Goodwin attached his own affidavit in support of his motion,

he did not provide an affidavit from his trial counsel. No hearing was held on the motion.

                           INEFFECTIVE ASSISTANCE OF COUNSEL

        In his sole point of error, Goodwin asserts he did not receive effective assistance from

counsel at the plea-bargaining stage of his felony criminal case. Specifically, he contends his trial

counsel failed to communicate to the State that he had accepted its offer of a plea bargain before

the State later withdrew it.

        A. Second motion for new trial

        As a preliminary matter, we determine whether we can consider the arguments made in

Goodwin’s purported amended motion for new trial. The Court of Criminal Appeals has held that

“if an original motion for new trial is overruled, a defendant may file an amended motion for new



2
  Although Goodwin was charged with three counts of aggravated assault with a deadly weapon, the State only
proceeded on counts two and three and dismissed count one of the charging instrument.




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trial within the original 30-day period—so long as the trial court grants him leave of court to do

so.” Rubio v. State,
638 S.W.3d 693
, 703 (Tex. Crim. App. 2022). Here, the record does not

indicate Goodwin received leave of court to file the purported amended motion for new trial after

his first motion was overruled.

       For this reason, we disregard the arguments within the second motion for new trial. Cf.

Fragoso v. State, No. 08-22-00182-CR,
2023 WL 4295855
, at *6 n.2 (Tex. App.—El Paso June

30, 2023, pet. ref’d) (mem. op.) (disregarding arguments in amended motion for new trial when it

was not filed within 30 days of the imposition of sentence).

       B. Standard of review and applicable law

       An ineffective assistance of counsel claim may be raised for the first time on appeal.

Robinson v. State,
16 S.W.3d 808, 810
 (Tex. Crim. App. 2000). To successfully assert such a

claim, appellant must show that (1) trial counsel’s performance was “deficient because it fell below

an objective standard of reasonableness;” and (2) “a probability sufficient to undermine confidence

in the outcome existed that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Rylander v. State,
101 S.W.3d 107, 109-10
 (Tex. Crim. App. 2003)

(en banc) (citing Strickland v. Washington,
466 U.S. 668
 (1984)). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” See Strickland,
466 U.S. at 694
.

       “The review of defense counsel’s representation is highly deferential and presumes that

counsel’s actions fell within a wide range of reasonable professional assistance.” Mallett v. State,
65 S.W.3d 59, 63
 (Tex. Crim. App. 2001). On direct appeal, “[a] substantial risk of failure

accompanies an appellant’s claim of ineffective assistance of counsel.” Thompson v. State,
9 S.W.3d 808, 813
 (Tex. Crim. App. 1999). “[C]ounsel’s deficiency must be affirmatively

demonstrated in the trial record.” Lopez v. State,
343 S.W.3d 137, 142
 (Tex. Crim. App. 2011).

Yet, “the record on direct appeal is in almost all cases inadequate to show that counsel’s conduct




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fell below an objectively reasonable standard of performance and . . . the better course is to pursue

the claim in habeas proceedings.” Andrews v. State,
159 S.W.3d 98, 102
 (Tex. Crim. App. 2005).

The only exception is when counsel’s conduct “was so outrageous that no competent attorney

would have engaged in it.”
Id. at 101
.

           C. Analysis

           Because Goodwin failed to seek leave of the trial court before he filed his amended motion

for new trial, we must disregard that procedural vehicle. Instead, Goodwin raised his ineffective

assistance claim for the first time on appeal. The record here establishes that Goodwin attached his

own affidavit to his new trial motion wherein he claimed the State had offered him a sentence of

15 years confinement in exchange for his plea of guilty. He asserts he accepted the offer on

December 28, 2022, but his trial counsel failed to communicate his purported acceptance to the

State. He claims the State then withdrew the offer and he proceeded to plead guilty to the two

counts as charged by the indictment and elected to have the trial court assess his sentence. Goodwin

asserts he established that he accepted the State’s offer before it was withdrawn. Therefore,

Goodwin argues his trial counsel’s conduct was deficient.

           Based on the procedural posture of this case, neither Goodwin’s claim nor his affidavit was

first presented to the trial court. Nor was his trial counsel given an opportunity to contest or

contextualize his allegations. A “trial counsel should ordinarily be afforded an opportunity to

explain his actions before denounced as ineffective.” Rylander,
101 S.W.3d at 111
. For this reason,

Goodwin’s proposed claim of ineffective assistance of counsel does not present meritorious

grounds for appeal. Goodspeed v. State,
187 S.W.3d 390, 392
 (Tex. Crim. App. 2005) (holding

absent trial counsel’s opportunity to explain his actions, deficient performance will not be found

“unless the challenged conduct is so outrageous that no competent attorney would have engaged

in it”).




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       Moreover, Goodwin’s contention fails to satisfy the prejudice prong of the Strickland test.

To establish prejudice in a claim of ineffective assistance of counsel in which a defendant is not

made aware of a plea-bargain offer, or rejects a plea-bargain because of bad legal advice, the

defendant must show a reasonable probability that: (1) he would have accepted the offer if counsel

had not given ineffective assistance; (2) the prosecution would not have withdrawn the offer; and

(3) the trial court would not have refused to accept the plea bargain. Ex parte Argent,
393 S.W.3d 781, 784
 (Tex. Crim. App. 2013). Here, even if counsel failed to timely inform the State of

Goodwin’s acceptance of the plea offer, the record does not show and Goodwin has not

established, the State would not have withdrawn the offer, or that the trial court would not have

refused to accept the plea agreement.
Id.
 On the record before us, we cannot conclude Goodwin

has established that, but for his trial counsel’s actions, there is a reasonable probability that the

result of the proceeding would have been different. See Rylander,
101 S.W.3d at 109-10
.

       We overrule Goodwin’s sole issue.

                                          CONCLUSION

       We affirm the trial court’s judgment and sentence.



                                              GINA M. PALAFOX, Justice

December 21, 2023

Before Alley, C.J., Palafox, and Soto, JJ.

(Do Not Publish)




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