Denys A. Martinez v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-19-00819-CR

Denys A. MARTINEZ, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR12834 Honorable Jennifer Pena, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

Delivered and Filed: January 27, 2021

AFFIRMED

Denys A. Martinez appeals his conviction for manslaughter. His sole issue on appeal is

whether trial counsel rendered ineffective assistance by misrepresenting his plea options. We

affirm the judgment of conviction.

BACKGROUND

Martinez was indicted for manslaughter and intoxication manslaughter. The case

proceeded to a jury trial. Before voir dire, trial counsel and Martinez had the following discussion

on the record: 04-19-00819-CR

[TRIAL COUNSEL]: Okay. Have I informed you that the State of Texas has never offered you a plea bargain in this case?

THE DEFENDANT: Yes.

[TRIAL COUNSEL]: So, you’re aware that the only option you have today is to either go to trial or plead guilty to the Judge and let her do whatever she wants to do in terms of punishment? Those are the only two options. Are you aware of that?

[TRIAL COUNSEL]: Okay. Any questions about anything at all before we get started other than what we’re going to talk about?

THE DEFENDANT: No.

After hearing the evidence and closing arguments, the jury found Martinez guilty of

manslaughter. 1 The trial court imposed Martinez’s sentence and signed a judgment of conviction.

Martinez timely appealed.

INEFFECTIVE ASSISTANCE OF COUNSEL

Martinez argues he received ineffective assistance of counsel because trial counsel’s

admonishments on the record were legally incorrect. “To prevail on a claim of ineffective

assistance of counsel, a defendant must demonstrate two things: deficient performance and

prejudice.” Vega v. State, 610 S.W.3d 79, 82 (Tex. App.—San Antonio 2020, no pet.) (quoting

Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018)). “To establish deficient

performance, an appellant must show counsel’s assistance fell below an objective standard of

reasonableness.” Id. (quotation marks omitted). “An appellant must overcome the strong

presumption that counsel’s conduct fell within the wide range of reasonable professional

assistance.” Id. (quotation marks omitted). In other words, “the defendant must overcome the

1 The jury also found Martinez guilty of intoxication manslaughter, but no sentence was imposed based on Martinez’s and the State’s agreement that imposing both sentences would violate the Double Jeopardy Clause. Although the judgment does not contain a sentence for “Count I” (intoxication manslaughter), the trial court signed an order vacating “Count I” of the judgment and sentence.

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presumption that, under the circumstances, the challenged action might be considered sound trial

strategy.” Id. (quotation marks omitted). “To defeat the presumption of reasonable professional

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

must affirmatively demonstrate the alleged ineffectiveness.” Id. (quotation marks omitted). “If no

reasonable trial strategy can justify counsel’s choices or conduct, performance necessarily falls

below an objective standard of reasonableness.” Id. “However, few cases demonstrate such

deficiency on direct appeal because the record is unlikely to include any explanation by trial

counsel, and we can [frequently] conceive potential reasonable trial strategies that counsel could

have been pursuing.” Id. at 82–83 (quotation marks omitted). “Once an appellant establishes

deficient performance, the appellant must then establish prejudice.” Id. at 83. “An appellant must

show a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (quotation marks omitted). “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id. (quotation marks omitted).

Martinez contends trial counsel’s performance was deficient because trial counsel

misstated Martinez’s plea options. He first argues that “[t]o have the judge assess punishment on

a plea of guilty would have required that the State of Texas execute a jury waiver. There is nothing

in the record to suggest that they had done so, or were willing to do so. Moreover, there is nothing

in the record to suggest that the appellant had been informed of the legal impediment to pleading

guilty to the judge without a waiver from the prosecution.” And second, “the statement of counsel

that he either ‘go to trial or plead guilty to the judge and let her decide whatever she wants to do

in terms of punishment’ is blatantly incorrect because of the fact that it wholly fails to inform the

appellant of his right to enter a plea of guilty to the jury and have his sentence assessed by that

jury.” In its brief, “[t]he State concedes counsel’s advice omitted the caveat the State would have

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to waive its jury trial right and omitted he could have pled guilty to the jury,” but argues the record

shows Martinez never indicated he wanted to plead guilty and the record does not show prejudice.

Because Martinez raises his ineffective assistance of counsel claim for the first time on

appeal, trial counsel was not given the opportunity to respond to Martinez’s claim. Both Martinez

and the State speculate as to trial counsel’s motives for making a record of his admonishments to

Martinez. However, an attorney’s advice to a client is ordinarily confidential and not made on the

record. See Bailey v. State, 507 S.W.3d 740, 745 (Tex. Crim. App. 2016). We therefore cannot say

trial counsel’s admonishments on the record constitute all the advice trial counsel gave Martinez.

The record before us does not establish the full scope of trial counsel’s admonishments, including

any admonishments or advice given off the record. Martinez’s claim of deficient performance is

not firmly founded in the record. Furthermore, nothing in the record affirmatively shows prejudice

and indicates Martinez would have changed his plea, had trial counsel made accurate

admonishments on the record before voir dire. Because the record does not establish deficient

performance or prejudice, we overrule Martinez’s sole issue on appeal.

CONCLUSION

We affirm the judgment of conviction.

Luz Elena D. Chapa, Justice

Do Not Publish

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