NUMBERS 13-07-00187-CR 13-07-00189-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESUS DE LEON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides Memorandum Opinion by Justice Garza
Appellant, Jesus De Leon, was charged by indictment with: (1) one count of
aggravated sexual assault of a child (“Count 1"), see TEX . PENAL CODE ANN . § 22.021(a)
(Vernon Supp. 2007); (2) one count of sexual performance by a child (“Count 2"), see id.
§ 43.25(b), (d) (Vernon Supp. 2007); and (3) two counts of possession of child pornography (“Counts 3 and 4") in cause number 13-07-187-CR, see id. § 43.26(a) (Vernon
2003). Additionally, Jesus was charged by indictment with twenty counts of possession
of child pornography in cause number 13-07-189-CR, see id. § 43.26(a).1 Jesus pleaded
guilty to all of the charges contained in the indictments and the trial court assessed
punishment. By four issues, Jesus contends that his convictions should be reversed and
remanded for trial based on: (1) a conflict of interest which rendered his trial counsel’s
assistance ineffective; and (2) the trial court’s refusal to allow him to withdraw his guilty
plea. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2006, Jesus was indicted in cause number 13-07-187-CR by a
Cameron County grand jury for the following crimes: (1) aggravated sexual assault of a
child; (2) sexual performance by a child; and (3) two counts of possession of child
pornography. Subsequently, in July 2006, Jesus and his brother, Adrian, were charged by
indictment in cause number 13-07-189-CR with twenty additional counts of possession of
child pornography. Whether Jesus committed these crimes is not at issue; Jesus admitted
on several occasions that he committed these crimes.2 The issue in this appeal pertains
primarily to the legal representation provided to Jesus by Gary Ortega.
On May 30, 2006, Jesus filed a motion to suppress evidence of child pornography
obtained as a result of an allegedly improper search and seizure of the house where Jesus
1 This opinion will dispose of cause num bers 13-07-187-CR and 13-07-189-CR.
2 The record reflects that Jesus, at various tim es, sexually assaulted his eight-year-old niece. The record further reflects that at least on one occasion, Jesus videotaped him self engaging in oral sex with his niece and another episode of oral sex with a sm all dog. Furtherm ore, the record contains evidence of num erous im ages of child pornography found on Adrian De Leon’s com puter, which Jesus adm itted to downloading. 2 and Adrian resided. Jesus filed a second motion to suppress on June 6, 2006, alleging
that all statements he made to law enforcement were involuntary, coerced, and enticed.
Specifically, Jesus noted that:
Detectives from Brownsville Police Department[,] in taking the confession of the defendant Jesus De Leon[,] did use his sister[,] Rocio Adriana De Leon[,] and the mother of the victim to extract and coerce a statement from the defendant despite the fact he advised the detective he did not wish to speak to his sister. The sister was allowed to interrogate the defendant in the presence of detectives. Further[,] during the reading of defendant’s rights[,] he advised the detectives he wished an attorney and was not allowed to communicate with one.
(Emphasis in original).
On January 22, 2007, the State filed a motion for an in camera inspection of certain
evidence, which included the videotape Jesus recorded depicting himself engaging in
sexual acts with his eight-year-old niece and the images of child pornography found on the
computer used by both Jesus and Adrian.
At a hearing conducted on January 25, 2007, the State informed the trial court that
Jesus had agreed to withdraw his motion to suppress in exchange for the State’s
withdrawal of its motion for an in camera inspection of the videotape and computer images.
Also at this hearing, Jesus notified the trial court of a plea agreement between him and the
State with respect to both indictments. As a result of the plea agreement, Jesus pleaded
guilty to one count of aggravated sexual assault of a child, one count of sexual
performance by a child, and two counts of possession of child pornography.3 In exchange
for the plea, the State agreed to dismiss the entire indictment against Adrian in cause
number 13-07-189-CR.
3 The plea agreem ent, which Jesus signed, also stated that, am ong other things, Jesus was not coerced to enter into the plea agreem ent. 3 On March 5, 2007, the trial court sentenced Jesus to: (1) fifty years’ imprisonment
for the one count of aggravated sexual assault of a child; (2) twenty years’ imprisonment
for the one count of sexual performance of a child; and (3) ten years’ imprisonment for
each of the two counts of possession of child pornography. The trial court ordered all of
the sentences imposed to run concurrently.
On appeal, Jesus states that Gary Ortega represented both brothers in these
matters.4 Jesus alleges that a family member later disclosed to him that Ortega was paid
$3,500.00 to represent Adrian. Jesus argues that Ortega never notified him of this
payment. Jesus contends that once the payment was received, Ortega began to pursue
a strategy adverse to his legal interests, which included persuading Jesus to plead guilty
to all charges in exchange for the dismissal of the charges against Adrian. As such, Jesus
argues that a conflict of interest existed, thus rendering Ortega’s assistance as counsel
ineffective.
The State counters Jesus’s recitation of the facts by arguing that when Jesus
entered into the plea agreement, he was represented by Ortega, but Adrian had not yet
secured representation. The State contends that because Ortega was not the attorney of
record for Adrian at the time Jesus entered into the plea agreement, no conflict of interest
existed.
On March 14, 2007, Jesus filed a pro se motion to withdraw pleas of guilt, a pro se
4 The record contains docum entation of Ortega’s representation of Jesus. This docum ent provides that “[d]efendant, JESUS DE LEON, retained GARY ORTEG A, and he consents to GARY ORTEGA’s appearance as attorney of record in this cause.” The record reflects that Ortega filed an appearance of counsel as to Adrian on February 5, 2007, approxim ately two weeks after Jesus entered into the plea agreem ent with the State. This docum ent provided that “[d]efendant, ADRIAN DE LEON, retained GARY A. ORTEGA, and he consents to GARY A. ORTEGA’s appearance as attorney of record in this cause.”
4 notice of appeal, and a pro se motion to appeal with the trial court raising issues as to
Ortega’s effectiveness as counsel, among other things.5 On March 15, 2007, Jesus filed
a pro se motion to request court-appointed appellate counsel.6 The trial court certified
Jesus’s right to appeal on March 28, 2007. On April 2, 2007, Jesus filed an amended
motion for new trial and motion in arrest of judgment, both of which the trial court denied
on April 9, 2007. This appeal ensued.
II. STANDARD OF REVIEW
Our review of counsel's performance must be highly deferential. Strickland v.
Washington, 466 U.S. 668, 689 (1984). A defendant seeking relief for ineffective
assistance of counsel must demonstrate that: (1) counsel's performance failed to
constitute reasonably effective assistance by falling below an objective standard of
reasonableness under the prevailing professional norms; and (2) there is a reasonable
probability that, but for counsel's deficient performance, the result of the proceeding would
have been different. Id. at 694; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
The burden of proving ineffective assistance of counsel is on the appellant and requires
proof by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1
(Tex. Crim. App. 1991); Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).
An allegation of ineffective assistance of counsel will be sustained only if it is firmly
founded in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996);
Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd). 5 On appeal, Jesus focuses on the legal representation provided by Ortega and the trial court’s alleged refusal to consider deferred adjudication as punishm ent.
6 Philip Cowen was appointed as Jesus’s appellate counsel. The effectiveness of his representation is not the subject of this appeal.
5 Effective assistance of counsel is gauged by the totality of the representation from
the pre-trial representation of the accused through the punishment stage of the trial. Ex
parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989). Thus, the trial as a whole
must be reviewed and not isolated incidents of counsel's performance. Cannon, 668
S.W.2d at 403. The standard of review for ineffective assistance of counsel is the same
for all phases of the trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App.
1999).
Claims of ineffective assistance of counsel based on conflicts of interest are
controlled by Cuyler v. Sullivan, 446 U.S. 335 (1980), a case decided four years before
Strickland. See Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). Under this
authority, an actual conflict of interest exists if counsel is required to make a choice
between advancing his client's interest in a fair trial or advancing other interests to the
detriment of his client's interest. Id. at 564. A defendant demonstrates a Cuyler violation
if he can show that: (1) his counsel was burdened by an actual conflict of interest; and (2)
the conflict had an adverse effect on specific instances of counsel's performance. Cuyler,
446 U.S. at 348-50. However, the conflict must be more than merely speculative. James
v. State, 763 S.W.2d 776, 778-79 (Tex. Crim. App. 1989). Until a defendant shows his
counsel actively represented conflicting interests, he has not established the predicate for
his claim of ineffective assistance. Cuyler, 446 U.S. at 350. A showing of the "possibility
of a conflict of interest" is not sufficient to overturn a criminal conviction. Id. However, if
an appellant shows an actual conflict, prejudice is presumed. Id.
6 III. ANALYSIS
In his first three issues on appeal, Jesus takes issue with the representation
provided by Ortega. Specifically, Jesus contends that a conflict of interest arose because
Ortega represented both him and his brother, both of whom had adverse defenses. Jesus
further argues that he was essentially left without counsel because Ortega represented
Adrian to his detriment. Finally, Jesus asserts that Ortega’s representation was ineffective
under the Strickland harm analysis because Ortega failed to urge a motion to suppress
under article 38.23 of the code of criminal procedure. See Strickland, 466 U.S. 487; TEX .
CODE CRIM . PROC . ANN . art. 38.23 (Vernon 2005). The State counters by arguing that: (1)
Jesus has waived his right to appeal, and, therefore, this appeal should be dismissed; and
(2) the evidence does not demonstrate that Ortega labored under an actual conflict of
interest.
1. Jesus’s Right to Appeal
We begin by addressing the State’s waiver argument.7 The State contends that as
a part of Jesus’s plea agreement with the State, Jesus admitted guilt and expressly agreed
to waive all rights to appeal if the trial court accepted the State’s sentencing
recommendation. The State notes that the trial court did sentence Jesus in accordance
with the plea agreement and that therefore, the trial court did not have authority to
“unwaive” Jesus’s lost right to appeal. 7 On April 19, 2007, the State filed a m otion to reconsider the trial court’s granting of perm ission for Jesus to appeal or, alternatively, to judicially acknowledge that Jesus has reneged on the plea agreem ent. In its m otion, the State argues that Jesus explicitly waived his right to appeal in the plea agreem ent and that Jesus did not provide any evidence dem onstrating that the waiver of appeal was involuntary. The State further argued that Jesus has reneged on the plea agreem ent by filing his notice of appeal. The State also acknowledged in its m otion that it “will be seeking to re-indict Adrian De Leon, the co-defendant in cause num ber 06-CR-2746-G.”
7 “In a plea bargain case—that is, a case in which a defendant’s plea was guilty or
nolo contendere and the punishment did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant—a defendant may appeal only: (A) those
matters that were raised by written motion filed and ruled on before trial; or (B) after getting
the trial court’s permission to appeal. TEX . R. APP. P. 25.2(a)(2); see CODE CRIM . PROC .
ANN . art. 44.02 (Vernon 2006) (providing that a defendant in any criminal action may
appeal a guilty plea if his punishment does not exceed the punishment recommended by
the prosecutor and if he has permission of the trial court, except for matters that have been
raised by written motion prior to trial). “The plain import of [former rule 25.2(b)(3)] is that
appeal from plea-bargain cases are limited to the situations set forth in the rule.” Woods
v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003). Therefore, before examining the
record, we first determine if the agreement in this case incorporated a “punishment
recommended by the prosecutor and agreed to by the defendant.” See TEX . R. APP. P.
25.2(a)(2).
An agreement between the State and an accused may not necessarily include as
one of its terms an agreed punishment recommendation. Shankle v. State, 119 S.W.3d
808, 813 (Tex. Crim. App. 2003); Ramirez v. State, 89 S.W.3d 222, 225 n.4 (Tex.
App.–Corpus Christi 2002, no pet.). Any concession by the State in exchange for the
accused's plea creates a plea bargain. Ramirez, 89 S.W.3d at 225 n.4. Only a plea
bargain that incorporates an agreed recommendation as to punishment that is accepted
by the court, however, triggers restrictions on our review power contained in rule 25.2(a)(2)
of the rules of appellate procedure. Id.; see TEX . R. APP. P. 25.2(a)(2).
8 In Shankle, the court of criminal appeals delineated two main categories of plea
bargains that affect punishment: (1) sentence-bargaining; and (2) charge-bargaining.
Shankle, 119 S.W.3d at 813. In addition to the sentence-bargaining that occurs in the
more familiar form of an agreement to a finite or definite punishment, an agreement to a
punishment cap also is an "agreed recommendation as to punishment." Threadgill v.
State, 120 S.W.3d 871, 872 (Tex. App.–Houston [1st Dist.] 2003, no pet.). Similarly, an
agreement to dismiss a pending charge, or not to bring an available charge, is
charge-bargaining that effectively puts a cap on punishment at the maximum sentence for
the charge that is not dismissed. Shankle, 119 S.W.3d at 813.
The record in the present case demonstrates that the plea agreement involved
sentence bargaining and that the trial court sentenced Jesus in accordance with the plea
agreement. Jesus’s plea agreement with the State filed on January 25, 2007, provided
that in exchange for a plea of guilty, the State would “cap punishment at seventy-five years
in the Texas Department of Corrections,” and moreover, the State would “dismiss the entire
indictment against the co-defendant [Adrian] . . . .” The trial court accepted the plea
agreement and subsequently sentenced Jesus to serve a maximum of fifty years’ in the
Texas Department of Corrections, which was within the sentencing cap recommended by
the State and, accordingly, “the punishment did not exceed the punishment recommended
by the prosecutor and agreed to by the defendant . . . .” TEX R. APP. P. 25.2(a)(2).
We must now determine if Jesus raised matters by written motion that were ruled
upon before trial or if he obtained permission from the trial court to appeal. See id. The
record reflects that the trial court certified Jesus’s right to appeal on March 28, 2007. In
9 its certification of Jesus’s right to appeal, the trial court placed an “X” corresponding to the
pre-printed statement: “is a plea-bargain case, but the trial court has given permission to
appeal, and the defendant has the right of appeal.” Because this is a plea bargain case
and because Jesus obtained permission from the trial court to appeal, we conclude that
Jesus has preserved his issues for appeal. See Monreal v. State, 99 S.W.3d 615, 617
(Tex. Crim. App. 2003) (holding that when a defendant waives his right to appeal, he may
not appeal unless the trial court grants permission); see also Barcenas v. State, 137
S.W.3d 865, 866 (Tex. App.–Houston [1st Dist.] 2004, no pet.) (per curiam) (same);
Zaragoza v. State, No. 13-04-391-CR, 2005 Tex. App. LEXIS 3441, at **4-5 (Tex.
App.–Corpus Christi May 5, 2005, no pet.) (“A valid waiver of appeal, whether negotiated
or non-negotiated, will prevent a defendant from appealing without the consent of the trial
court . . . .”).
2. Conflict of Interest
Jesus’s entire argument pertaining to an alleged conflict of interest hinges upon his
own conclusory allegation that Ortega represented both Jesus and Adrian prior to entering
into the plea agreement with the State. However, the record does not support Jesus’s
contention. The record demonstrates that Jesus entered his guilty plea with the trial court
on January 25, 2007, pursuant to the plea agreement with the State. As previously
mentioned, Ortega filed an appearance of counsel stating that he represented Adrian on
February 5, 2007. The record does not reflect that Ortega began representing Adrian prior
to February 5, 2007. Jesus has not provided any evidence that Ortega labored under a
conflict of interest while he represented him. Moreover, Jesus has not provided any
10 evidence that Ortega was paid $3,500 to represent Adrian to “get the State to drop the
charges . . .” beyond his own speculative statements. Based on the record before us, we
conclude that no conflict of interest existed. See Cuyler, 446 U.S. at 350 (noting that a
showing of the “possibility of a conflict of interest” is not sufficient to overturn a criminal
conviction); see also James, 763 S.W.2d at 778-79 (holding that a conflict of interest must
be more than speculative).
3. Ineffective Assistance of Counsel
Essentially, Jesus’s issues on appeal pertain to his frustration that he received fifty
years’ imprisonment while the charges against his brother were dropped.8 Jesus argues,
in many of his pro se motions, that the record should be supplemented with the following
items which took place off the record: (1) that he did not answer truthfully when the trial
court asked him if his plea was coerced; (2) his sister, Rosio De Leon, was “compelled and
coerced” to confront him and ask him questions to obtain untrue statements which were
used against him; and (3) he lied, based on instructions from Ortega, with respect to the
trial court’s questions as to whether he had read the pre-sentence investigation report,
whether he understood the nature of the plea agreement, and whether he understood the
risks of the plea agreement.9 See TEX . R. APP. P. 34.5(c)(1), (d). In support of record
supplementation, Jesus argues that the aforementioned items establish that Ortega’s 8 This argum ent is disingenuous because the plea agreem ent dem onstrates that Jesus him self bargained for the dism issal of “the entire indictm ent against the co-defendant [Adrian] in Cause num ber 06- CR-2746-G.” In addition, the record reflects that Ortega represented Jesus and not Adrian during the negotiation of the plea agreem ent; therefore, Jesus had the assistance of counsel during the plea negotiations.
9 Jesus has not provided this Court with authority or argum ent establishing that Jesus was coerced or otherwise entered into the plea agreem ent involuntarily. In fact, this issue was not even argued on appeal. Jesus m erely asserted this contention via unsupported allegations in his pro se notice of appeal to establish that Ortega failed to provide effective assistance of counsel.
11 actions amounted to ineffective assistance of counsel. However, on appeal, Jesus notes
that “[a]s to the resolution of this issue, it makes very little difference if this Court
supplements the record. Rather, as will be shown below, the fact that there was an actual
conflict should have led to appointment of new counsel . . . .”
Jesus also argues that because Ortega withdrew his motion to suppress the
videotape and the computer images containing child pornography, Ortega’s performance
fell below that which is acceptable. However, Jesus fails to overcome the presumption that
Ortega’s withdrawal of his motion to suppress “might be considered sound trial strategy.”
See Strickland, 466 U.S. 689 (quoting Michel v. Louisiana, 350 U.S. 91, 100-01 (1955)).
The record indicates that Ortega agreed to withdraw his motion to suppress in exchange
for the State’s withdrawal of its motion for an in camera inspection of the videotape and
computer images. We believe that there was some basis for concluding that Ortega’s
conduct was strategic in nature; therefore, further inquiry is improper. See Garcia v. State,
57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (noting that in the absence of evidence of
counsel's reasons for the challenged conduct, the appellate court will assume a strategic
motivation and will not conclude that the conduct was deficient unless the conduct was so
outrageous that no competent attorney would have engaged in it); Aldrich v. State, 104
S.W.3d 890, 896 (Tex. Crim. App. 2003) ("Appellate courts can rarely decide the issue of
unreasonable performance because the appellate record rarely speaks to the strategic
reasons that counsel may have considered."); see also Bell v. State, 867 S.W.2d 958, 961
(Tex. App.–Waco 1994, no pet.).
In reviewing the totality of the representation, we conclude that Jesus failed to
12 establish that a conflict of interest existed and that Ortega’s conduct amounted to
ineffective assistance of counsel; thus, he failed to satisfy the Strickland test. Accordingly,
we overrule Jesus’s first three issues on appeal.
4. Deferred Adjudication and Jesus’s Motion to Withdraw His Guilty Plea
In his fourth issue on appeal, Jesus argues that the trial court erred in rejecting his
request for deferred adjudication because it had rejected his plea agreement with the State
without affording him the opportunity to withdraw his plea of guilty. Conversely, the State
argues that there was no agreement for deferred adjudication. Instead, the plea
agreement was merely an open plea that capped punishment at seventy-five years.
The record does not support Jesus’s contention that he bargained for a chance to
be placed on community supervision. In fact, the plea agreement provides, in relevant
part, that: “The State opposes deferred adjudication in both Cause numbers, 06-CR-0405-
G and 06-CR-2746-G.” Clearly, there was no meeting of the minds with respect to the
issue of deferred adjudication. See Ex parte Moussazadeh, 64 S.W.3d 404, 411-12 (Tex.
Crim. App. 2001) (“We apply general contract law principles to determine the content of
a plea agreement in a criminal case” and a reviewing court will not imply a deferred finding
element of covenant “unless it appears from the plea agreement’s express terms that both
parties clearly contemplated this element or covenant”). Instead, the plea agreement
provided, among other things, that the State agreed to cap punishment at seventy-five
years in exchange for Jesus’s plea of guilty.
Moreover, even though the trial court stated that it was finding Jesus guilty at the
plea hearing, the court had not entered a written judgment; therefore, it was still entitled
13 to consider deferred adjudication.10 See CODE CRIM . PROC . ANN . art. 42.01, sec. 1 (Vernon
2006); see also Anderson v. State, 937 S.W.2d 607, 609 (Tex. App.–Houston [1st Dist.]
1996, no pet.) (holding that the trial court did not lose authority to grant deferred
adjudication at the sentencing hearing after the defendant’s stipulation of guilt and the trial
court’s finding of guilt); Powers v. State, 727 S.W.2d 313, 316-17 (Tex. App.–Houston [1st
Dist.] 1987, pet. ref’d) (“Until the court finds the appellant guilty and enters the conviction,
it can defer the adjudication of guilt . . . . [T]he court’s oral finding of guilt did not divest the
court of power to grant subsequent deferred adjudication.”). Furthermore, Jesus’s trial
counsel did not make a request for deferred adjudication at the sentencing hearing as
illustrated by the following statements:
MR. ORTEGA: . . . . [W]e are asking the court to be merciful towards him and in fact consider the minimum punishment of what they have asked for, Judge, and consider a couple years of psychological counseling and, in fact, consider five years of punishment on one indictment, Judge; five years of punishment on the second indictment of possession of child pornography. The plea agreement in this case, Judge, was that the indictments run concurrent. I know we are asking for the minimum in this case. . . .
Moreover, the record reflects that the trial court accepted Jesus’s plea agreement
and sentenced Jesus within the terms of the agreement. Therefore, based on the
foregoing, we conclude that the trial court did not err in refusing to defer findings of guilt
and in refusing to permit Jesus to withdraw his plea of guilty after the imposition of his
sentence. See Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996) (holding that
a plea agreement is a contractual arrangement and that it is not binding on all of the
10 W e note that a subsequent am endm ent to article 42.12 of the code of crim inal procedure prohibits deferred adjudication if the defendant “is charged with an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim . . . .” C O D E O F C R IM P R O C . A N N . art. 42.12, sec. 5(d)(2)(A) (Vernon Supp. 2007). However, this issue was not raised with either the trial court or on appeal.
14 necessary parties until such parties agree to the terms of the contract); see also Holland
v. State, 112 S.W.3d 251, 255 (Tex. App.–Austin 2003, no pet.) (“If the court chooses to
accept the plea, it is bound to carry out the terms of the agreement.”). Accordingly, we
overrule Jesus’s fourth issue on appeal.
IV. CONCLUSION
Having overruled all of Jesus’s issues on appeal, we affirm the judgments of the trial
court.
_______________________ DORI CONTRERAS GARZA, Justice
Do not publish. TEX .R.APP.P. 47.2(b) Memorandum Opinion delivered and filed this the 15th day of May, 2008.