Guerrero v. State

64 S.W.3d 436, 2001 Tex. App. LEXIS 5534, 2001 WL 912916

• Court: Court of Appeals of Texas
• Decided: August 8, 2001
• Docket: 10-00-217-CR
• Status: Published

Opinions

ABATEMENT ORDER

PER CURIAM.

Juan Manuel Guerrero entered a nonnegotiated guilty plea to possession of a controlled substance with intent to deliver. After a presentence investigation, the court sentenced Guerrero to eight and one-half years’ imprisonment. Guerrero’s appellate counsel filed an Anders brief.¹ See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498 (1967). Guerrero has filed a pro se response. See Wilson v. State, 955 S.W.2d 693, 696-97 (Tex.App.—Waco 1997, order), disp. on merits, 3 S.W.3d 223 (Tex.App.— Waco 1999, pet. ref'd). The State has likewise responded. Id. at 697. We now decide “whether the case is wholly frivolous” as claimed by counsel. See Taulung v. State, 979 S.W.2d 854, 855 (Tex.App.—Waco 1998, no pet.) (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498).

BACKGROUND

The indictment alleges that Guerrero intentionally and knowingly possessed cocaine in the amount of 4 grams or more, but less than 200 grams, with the intent to deliver said substance. According to the record, narcotics officers executed a search warrant at a residence owned by Guerrero’s co-defendant Nestor Gonzales on May 14, 1999. When Guerrero and Gonzales saw the officers, they “first attempted to run away but quickly complied with ... instructions to halt.” Guerrero had a plastic bag in his left-rear pocket which held 13 smaller bags containing a combined 8.99 grams of cocaine. In a building behind the residence, the officers located a cooler which contained 1 pound of marihuana and 2 bricks of cocaine having a combined weight of 4.89 pounds (2,215 grams).

One month after his arrest, Guerrero gave a written confession. In the written confession, Guerrero acknowledged that he was given the warnings required by article 38.22, section 2 of the Code of Criminal Procedure.² See Tex. Code CRiM. PROC. Ann. art. 38.22, § 2 (Vernon 1979). Guerrero stated in his confession that he had known his co-defendant Gonzales “for the past 4 to 5 years” and Gonzales had been selling drugs since he first knew him. Guerrero went to work at Gonzales’s bar after he injured his hand and could no longer work his construction job. Guerrero moved into Gonzales’s home at the latter’s invitation.

According to Guerrero:

Nestor Gonzales would give me small amounts of cocaine so that I could sell for him at the bar. I would give Nestor Gonzales all the money I made from the cocaine and he would pay me $20.00 per day for working at his bar.

I know that Nestor Gonzales was moving a lot of cocaine and marijuana because I would see the bricks of marijuana and cocaine at Nestor’s house. Nestor Gonzales sold his drugs to several different people. Nestor Gonzales would deliver the drugs to people who bought or if he trusted them Nestor would let them come over to his house to buy the drugs.

Guerrero continued by describing how Gonzales had come into possession of the two bricks of cocaine seized by the officers and how Gonzales had instructed him to put the bricks in the cooler.

Guerrero is a citizen of Mexico. With his appointed trial counsel and an interpreter, Guerrero signed a plea document containing various admonishments and waivers and a judicial confession. The plea document contains all but one of the admonishments required by article 26.13(a). See Tex. Code CRiM. PROC. Ann. art. 26.13(a) (Vernon Supp.2001). The court failed to admonish Guerrero orally or in writing that, if convicted of certain sex crimes, he would be required to register as a sex offender.³ Id. art. 26.13(a)(5).

By signing this document, Guerrero attested that the court had “admonished and warned” him in accordance with article 26.13(a) (with the one exception noted) and that the court had “admonished and warned” him of his rights: to a grand jury indictment; to a jury trial; to a 10-day preparation period; to confront and cross-examine the witnesses against him; against self-incrimination; and to a pre-sentence investigation and report. Guerrero waived each of these rights in writing. He also stated that he was mentally competent and freely and voluntarily making his plea; that he had a 6th grade education; and that he could not read, write or understand the English language. Guerrero’s plea papers conclude with the following statement: “I understand the admonitions, statements and waivers set forth above and I am aware of the consequences of my plea.”

Guerrero’s trial counsel signed a statement indicating that he had explained Guerrero’s rights to him and that he believed Guerrero was sane and understood the nature and consequences of his plea.⁴

Through Guerrero’s attorney and the interpreter, the court orally reviewed the admonishments required by article 26.13(a) (with the exception noted) and the rights Guerrero was waiving. He stated that he understood each of the admonishments and rights and was waiving them freely, voluntarily, and without coercion. Guerrero also stated that he understood that, because he was pleading without a recommendation from the State, the court could sentence him anywhere within the punishment range provided for the offense and that no one had represented to him that the court would assess any particular punishment. After accepting Guerrero’s guilty plea and the State’s evidence, the court ordered a presentence investigation.

At the sentencing hearing, the State asked that the court impose a lengthy sentence because Guerrero refused to testify against his co-defendant even after being offered immunity. Guerrero’s counsel asked the court to consider community supervision. Counsel suggested to the court that Guerrero had refused to testify because he feared reprisals from those involved in this “very high-priced sophisticated operation that he got involved in.” The court rejected Guerrero’s request for community supervision.

POTENTIAL ISSUES

Guerrero’s appellate counsel identifies four potential issues in his brief. In these issues, counsel reviews: (1) the voluntariness of Guerrero’s plea; (2) whether any jurisdictional defects occurred prior to entry of the plea; (3) whether the prosecutor’s argument at sentencing violated Guerrero’s constitutional and statutory privileges against self-incrimination; and (4) whether the failure of Guerrero’s trial counsel to object to this argument constitutes ineffective assistance of counsel.

Guerrero presents six issues in his pro se response. He contends that: (1) his sentence is too harsh; (2) he had no knowledge of the marihuana and cocaine found in the cooler; (3) his guilty plea was involuntary; (4) his trial counsel misled him about the sentence he would receive; (6) his confession was involuntary; and (6) he was denied counsel during the interrogation which yielded his confession.

The State contends that Guerrero’s pro se response should be disregarded because he does not provide record references or citations to supporting legal authorities. However, this Court has determined that such a response need not comply with the briefing requirements of the appellate rules. See Coronado v. State, 996 S.W.2d 283, 285 (Tex.App.—Waco 1999, order), disp. on merits, 25 S.W.3d 806 (Tex.App.—Waco 2000, pet. ref'd); Wilson, 955 S.W.2d at 697. Accordingly, we will address the issues raised in Guerrero’s response.

THE CONFESSION

Guerrero contends in his fifth issue that his confession was involuntary because his cell mate continually “chased,” confused, and frightened him until he finally confessed. He argues in his sixth issue that his confession is invalid because he was denied counsel during the interrogation which yielded the confession. His counsel suggests in counsel’s second potential issue that by pleading guilty Guerrero waived the right to complain about the propriety of his confession.

Counsel would be correct if the Helms rule were still the law in Texas. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972). According to Helms, “Where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects including claimed deprivation of federal due process are waived.” Id. However, the Court of Criminal Appeals sharply limited Helms in a recent decision. See Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App.2000). The Court set forth the following rule for raising appellate claims following a plea of guilty or nolo contende-re:

Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere “waives” or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error. In addition, if the appeal is from a judgment rendered on the defendant’s plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the substance of the appeal must have been raised by written motion and ruled on before trial (unless the appeal is for a jurisdictional defect or the trial court granted permission to appeal).

Id.; see also Daw v. State, 17 S.W.3d 330, 333 n. 2 (Tex.App.—Waco 2000, no pet.).

Because Guerrero pleaded guilty without the benefit of a plea recommendation, Rule of Appellate Procedure 25.2(b)(3) and the latter part of the Young test requiring a written pre-trial motion, a jurisdictional defect, or trial court permission do not apply. See Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App.1994) (applying predecessor to Rule 25.2(b)(3)). Additionally, we cannot say that Guerrero’s conviction “was rendered independent of, and is not supported by, [his confession].” Young, 8 S.W.3d at 667. Thus, Guerrero did not waive the right to complain about the propriety of his confession by pleading guilty.

The Eighth Court of Appeals has determined that a challenge to the volun-tariness of a confession can present an arguable issue for Anders purposes. See Tellez v. State, 880 S.W.2d 247, 248 (Tex.App.—El Paso 1994, order). As the Tellez court did, we conclude that the facts surrounding the making of the challenged confession present an issue of arguable merit. Id.

THE PLEA

In his first issue, Guerrero’s appellate counsel reviews Guerrero’s guilty plea and concludes that it was made voluntarily. Guerrero’s third and fourth pro se issues challenge the voluntariness of his plea. Guerrero contends that he was confused about the nature of the proceedings, that he pleaded guilty because he feared a harsh sentence from a jury, and because his trial counsel represented to him that he would “fight” to get Guerrero five years’ community supervision.

This Court has recently evaluated the voluntariness of a defendant’s guilty plea in the Anders context. See Coronado, 996 S.W.2d at 287. We concluded that the defendant’s challenge to the voluntariness of his guilty plea raised an arguable issue. Id. We likewise conclude that Guerrero’s challenge to the voluntariness of his plea presents an issue of arguable merit.⁵

CONCLUSION

We have concluded that Guerrero’s appeal presents issues of arguable merit. Accordingly, we abate Guerrero’s appeal for the appointment of new counsel.⁶ Id. at 287; see also Penson v. Ohio, 488 U.S. 75, 88-84, 109 S.Ct. 346, 351-52, 102 L.Ed.2d 300, 310-11 (1988) (“The Court of Appeals’ determination that arguable issues were presented by the record ... created a constitutional imperative that [new] counsel be appointed.”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991) (“if the Court of Appeals does find that there are arguable grounds, the appellate court must then guarantee appellant’s right to counsel by ensuring that another attorney is appointed to represent appellant”). The court’s order appointing new appellate counsel shall be filed with the Clerk of this Court in a supplemental clerk’s record within fifteen (15) days after the date of this Order. Counsel’s brief shall be due within thirty (30) days after appointment. Id.

1 . Counsel also filed a motion to withdraw which we have dismissed because this Court does not have the authority to permit appointed counsel to withdraw. See Sowels v. State, 45 S.W.3d 690, 692-93 (Tex.App.—Waco 2001, no pet. h.) (citing Enriquez v. State, 999 S.W.2d 906, 908 (Tex.App.—Waco 1999, order, no pet.)).

2 . Unless otherwise indicated, the term "article” as used hereinafter refers to an article of the Code of Criminal Procedure.

3 . Subsection (a)(5), which requires a court to inform a defendant that if he is convicted of a sex crime he will be required to register as a sex offender, took effect on September 1, 1999. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 33, 1999 Tex. Gen. Laws 4831, 4843.

4 . Guerrero's trial counsel stated on the record that he is fluent in Spanish.

5 . Our decision should not be viewed as a determination of the merits of the issues presented by Guerrero and his counsel. His new counsel should personally review the record to determine what issues should be raised in this appeal. See Coronado v. State, 996 S.W.2d 283, 287 n. 4 (Tex.App.—Waco 1999, order), disp. on merits, 25 S.W.3d 806 (Tex.App.—Waco 2000, pet. ref’d).

6 . Assuming the trial court has not already permitted Guerrero's present appellate counsel to withdraw, we note that counsel must file a motion to withdraw with that court. See Sowels, 45 S.W.3d at 692.