David Moreno v. State

Opinion

NO. 07-12-0301-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 16, 2012 _____________________________

ALMA ROSA GARZA,

Appellant v.

THE STATE OF TEXAS,

Appellee _____________________________

FROM THE 264TH DISTRICT COURT OF BELL COUNTY;

NO. 66564; HONORABLE MARTHA J. TRUDO, PRESIDING _____________________________

Memorandum Opinion _____________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Alma Rosa Garza was convicted of theft of over $100,000 but less than $200,000

and sentenced to fourteen years confinement. She claims her trial counsel was

ineffective. We affirm the judgment.

An appellant has the burden to prove that her counsel was deficient and that the

deficiency caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.

2009). Moreover, she must do so by a preponderance of the evidence, Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999), and there is a strong presumption that

counsel’s conduct falls within a wide range of reasonably professional assistance.

Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Additionally, a

defendant is entitled to effective assistance of counsel during the plea bargaining

process. Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App. 1987). That right

obligates counsel to convey any plea offer in a manner that enables his client to make

an informed decision. Id. at 74. However, it must be remembered that the authority to

accept or reject a plea offer ultimately resides with the accused, even if counsel does

not like the decision. Id.

Here, appellant filed a motion for new trial raising the issue of the effectiveness of

counsel. A hearing was held on the motion, after which the court denied the motion.

Appellant now argues that her trial counsel failed “to fully explain that a plea of

guilty” and one of nolo contendere “have the same legal effect.” Thus, “[b]ased upon

that deficient advice, [she] entered a plea of no contest . . . without a plea bargain which

resulted in a sentence of fourteen (14) years rather than a plea of guilty with a plea

bargain of community supervision with a finding of guilt being deferred for a period of

ten . . . years.” We overrule the issue.

The evidence of record illustrates that appellant was offered a plea bargain of ten

years deferred adjudication if she plead guilty. However, if she opted to plead nolo

contendere (as she apparently desired to avoid whatever affect a theft conviction would

have on subsequent employment efforts), there would be no agreement as to

punishment. Instead, her plea would be considered “open.” Appellant’s counsel

discussed the alternatives with his client for an hour or more. He also 1) explained to

2 her “the danger of [an] open plea as opposed to a sure thing of deferred adjudication,”

2) afforded her the opportunity to ask questions, and 3) thought she understood the

situation. But, counsel did concede he did not expressly tell her that a “plea of no

contest was like pleading guilty.”

Before the plea was accepted, appellant affirmed that she was pleading no

contest “freely and voluntarily.” So too did she state that she understood that 1) there

was no plea bargain as to “time, probation, straight probation, deferred adjudication or

anything else,” 2) “the Court could in fact sentence [her] to time in the penitentiary,” and

3) she had no recourse if the judge sentenced her to prison. Despite this information,

she persisted in entering a plea of nolo contendere, which plea resulted in a fourteen-

year prison sentence.

Appellant cites us to no authority imposing a duty upon counsel to expressly

inform a client wanting to plea nolo contendere that such a plea has the same legal

effect as a guilty plea. Admittedly, one could argue that the absence of such knowledge

may be one of many factors to consider when assessing whether a defendant’s decision

to plead guilty was knowing and voluntary or whether trial counsel sufficiently assisted

his client in making an intelligent decision. Yet, appellant never testified that she would

have accepted the plea bargain offered had she been told that a guilty plea and a nolo

plea had the same legal effect. Nor can it be said that knowing the possibility of her

being sentenced to prison was somehow denied her. Indeed, counsel discussed the

“dangers” of pleading nolo contendere with her while the trial court admonished her that

she could still be sentenced to prison without recourse. And, when these circumstances

3 are considered, we cannot say that the trial court erred in rejecting the allegation that

counsel denied her effective assistance.

Instead, one can logically deduce from the record that appellant did not want to

suffer a finding of guilt, attempted to avoid such a finding by pleading nolo contendere,

knew the “dangers” of such a plea and that it could still result in a prison term,

intentionally rejected an offer of community supervision to avoid pleading guilty, and

opted to roll the dice by engaging in an open plea. That is not the stuff depicting

ineffective assistance of counsel, but rather evidence of a knowing decision coupled

with an undesirable result.

In sum, there is sufficient evidence of record upon which the trial court could

conclude that the actions of trial counsel were not ineffective.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice

Do not publish.