Rebecca Garcia A/K/A Rebecca Aguilera v. State

• Court: Court of Appeals of Texas
• Decided: October 4, 2001
• Docket: 11-00-00163-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Rebecca Garcia a/k/a Rebecca Aguilera

Appellant

Vs.                   No. 11-00-00163-CR  --  Appeal from Taylor County

State of Texas

Appellee

Rebecca Garcia a/k/a Rebecca Aguilera entered an open plea of no contest to the charge of aggravated sexual assault of a child under the age of 14.  The trial court convicted appellant and assessed her punishment at confinement for five years.  We affirm.  

Appellant presents four points of error.  In the first point, appellant contends that the trial court erred by denying her motion for new trial because her plea was involuntary.  In the second point, appellant contends that the trial court erred by denying her motion for new trial based upon trial counsel=s failure to present evidence beneficial to her defense.  In the third and fourth points, appellant argues that she received ineffective assistance of counsel under both the United States Constitution and the Texas Constitution because of the cumulative effect of trial counsel=s failure to present beneficial evidence and of his assurance that appellant would receive a probated sentence.

Appellant contends in her first point of error that her plea was not voluntarily made and that the trial court erred in denying the motion for new trial based upon the involuntariness of her plea.  In her motion for new trial, appellant asserted that she would not have pleaded no contest but for trial counsel=s assurance that the trial court would assess a probated sentence. 

At the hearing on the motion for new trial, three witnesses testified:  appellant=s mother, the victim, and trial counsel.  Appellant did not testify.  Appellant=s mother testified that she was present when appellant and trial counsel discussed the plea and that trial counsel told appellant that she was to plead no contest and that she would get probation.  Appellant=s mother stated that neither she nor appellant understood that Athat word no contest means the same as B as being guilty.@  The victim, appellant=s daughter, testified that she was not present during any conversations between appellant and trial counsel.  The victim merely testified that her mother did not assist or help Carlos Lopez in the commission of the offense.  Trial counsel testified that he discussed with appellant the range of punishment and the options available to her.  He told her his opinion that Athe only way she could avoid prison would be to get a deferred adjudication finding from the Court.@  Trial counsel refuted the testimony of appellant=s mother.  He denied promising appellant that she would receive probation.  He also testified that he told appellant there was Aevery indication and every chance@ that she would get sentenced to serve time in the penitentiary.  According to his testimony, trial counsel had thoroughly investigated the case and discussed the available options with appellant prior to her plea.  Trial counsel acknowledged that appellant=s mother had told him that appellant did not help Lopez commit the offense. 

The record from appellant=s plea hearing shows that the trial court admonished appellant, explained deferred adjudication to her, informed her that she was not eligible for regular probation, and told her that the only options available were deferred adjudication or Astraight pen time@ within the range of 5 to 99 years or life.  The trial court also explained that, if she were sent to prison, appellant would have to serve at least half of the sentence imposed by the trial court before she would be eligible for parole.  In answer to questions by the trial court, appellant indicated that she understood that there was no plea bargain, that whatever happened in her case was up to the trial court, and that the trial court would decide whether to send her to the penitentiary or defer the adjudication of her guilt.  After receiving the admonishments, appellant stated that she was pleading no contest of her own free will.

A plea is not involuntary merely because the sentence exceeded what the defendant expected.  Valle v. State, 963 S.W.2d 904, 909‑10 (Tex.App. ‑ Texarkana 1998, pet=n ref=d); Ybarra v. State, 960 S.W.2d 742, 745‑46 (Tex.App. ‑ Dallas 1997, no pet=n); Reissig v. State, 929 S.W.2d 109, 112‑13 (Tex.App. ‑ Houston [14th Dist.] 1996, pet=n ref=d).  Appellant has not shown that her plea was involuntary or that she entered the plea without understanding the consequences.  Consequently, we hold that the trial court did not abuse its discretion in overruling appellant=s motion for new trial.  The first point of error is overruled. 

In her second point, appellant asserts a new rationale for the motion for new trial.  The motion filed in the trial court did not address trial counsel=s failure to present beneficial witnesses.  The only basis on which appellant requested a new trial was her trial counsel=s alleged assurance of a probated sentence.  Thus, we cannot say that the trial court abused its discretion by failing to grant a new trial on an issue not raised in the trial court.  TEX.R.APP.P. 33.1(a).  The second point of error is overruled. 

In the next two points, we will apply the well-recognized standard of review for ineffective assistance of counsel.  We must first determine whether appellant has shown that trial counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986).  In order to assess counsel's performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time.  We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503, 508‑09 (Tex.Cr.App.1991). 

The record shows that trial counsel denied making any assurances to appellant that she would receive a probated sentence.  The record also shows that trial counsel thoroughly investigated the case and was aware that appellant=s mother asserted that appellant had nothing to do with the crime committed by Lopez.  Appellant, however, pleaded no contest and stipulated that, Aas a party,@ she did:

[I]ntentionally and knowingly sexually assault [K.G.], a female child younger than fourteen (14) years of age, by causing the male sexual organ of Carlos Mendoza Lopez to penetrate the female sexual organ of the said [K.G.].

Furthermore, the State called Lopez to testify at the plea hearing.  Lopez gave testimony that incriminated appellant and showed that appellant knew that he was having sex with her 11-year-old daughter, that appellant gave a ring to Lopez to give to the victim, that appellant encouraged them to get married, that appellant helped him move into her house and into a bedroom with the victim,  and that appellant put a lock on the inside of the bedroom door so that Lopez and the victim could have some privacy. 

We hold that appellant has failed to show that she received ineffective assistance of counsel.  Both trial counsel and the trial court admonished appellant prior to the plea.  The record indicates that appellant knowingly and voluntarily waived the right to call witnesses in her behalf and that she knowingly and voluntarily entered her plea of no contest.  The record also reflects that trial counsel called witnesses, including appellant and her mother, to testify at the punishment hearing.  Appellant has not shown that trial counsel=s representation fell below an objective standard of reasonableness.  The third and fourth points of error are overruled. 

The judgment of the trial court is affirmed.

            JIM R. WRIGHT

JUSTICE

October 4, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.