Yesenia Gonzalez v. State

• Court: Court of Appeals of Texas
• Decided: September 5, 2013
• Docket: 13-12-00150-CR
• Status: Published

Opinion

NUMBER 13-12-00150-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

YESENIA GONZALEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant Yesenia Gonzalez appeals her conviction of possession of more than

two thousand pounds of marihuana, a first-degree felony. See TEX. HEALTH & SAFETY

CODE ANN. § 481.121(b)(6) (West 2010). The trial court found appellant guilty and

assessed punishment at eight years’ confinement in the Texas Department of Criminal

Justice, Institutional Division. By one issue, appellant argues that her plea of no contest

was involuntary. We affirm. I. BACKGROUND1

Appellant and her husband were arrested after Cameron County sheriff’s deputies

found about 3,103 pounds of marihuana in a tractor trailer that appellant and her husband

were driving. Appellant waived a jury trial and pleaded no contest. In her written plea,

appellant affirmed the existence of a plea bargain, in which the State agreed to pursue a

maximum sentence of eight years’ imprisonment. At appellant’s hearing, her attorney

informed the trial court that she “wants to go with the negotiated plea.”

The trial court admonished appellant of her rights and the implications of pleading

no contest. The trial court asked appellant, “You understand that by pleading guilty [sic]

and stipulating to the evidence in this case, that I would have sufficient evidence to find

you guilty, and if I find you guilty, I can sentence you anywhere from five to ninety-nine

years . . . .” Appellant affirmed that she understood.

The trial court continued: “Now, there is a recommendation being made by the

[S]tate, and that is basically that I cap the punishment at eight years TDC, but that does

not prohibit your attorney from asking for probation. Do you understand that?” Again,

appellant affirmed that she did. Appellant also affirmed that she was satisfied with her

counsel. Appellant’s written plea reflected an understanding that the trial court could

sentence her to a five-to-ninety-nine-year term of imprisonment.

Appellant’s attorney asked the trial court to give appellant probation, but the trial

court sentenced appellant to eight years’ imprisonment. Appellant subsequently moved

1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 for a new trial and to arrest the judgment, asserting that her plea was involuntarily given.

After a hearing on the motion, the trial court denied the motion.

II. VOLUNTARINESS OF A PLEA

By her sole issue, appellant contends that her no contest plea was not a voluntary

plea. Specifically, appellant claims she only pleaded no contest because her attorney

assured her that she would receive probation if she did.

A. Standard of Review

We review a claim that a plea was involuntary due to ineffective assistance of

counsel under the Strickland v. Washington two-prong test. Hill v. Lockhart, 474 U.S. 52,

57 (1985); Ex parte Adams, 707 S.W.2d 646, 649 (Tex. Crim. App. 1986) (en banc).

Under that test, to prevail on an ineffective-assistance claim, the appellant must show that

(1) counsel’s representation fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);

Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). The

Strickland review of counsel’s representation is highly deferential, and a defendant must

rebut the strong presumption that trial counsel’s conduct fell within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at

142; Jaynes, 216 S.W.3d at 851. The record must contain evidence of counsel’s

reasoning, or lack thereof, to rebut the presumption. Moreno v. State, 1 S.W.3d 846, 865

(Tex. App.—Corpus Christi 1999, pet. ref’d).

Where, as here, an appellant first argues ineffective assistance of counsel claims

in a motion for new trial, we review the two Strickland prongs through an abuse of 3 discretion standard of review, reversing only if the trial court’s decision on the issue was

arbitrary or unreasonable.2 See Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—

Corpus Christi 2011, pet. denied); see also Garcia v. State, No. 13-10-00580-CR, 2013

WL 656831, at *3 (Tex. App.—Corpus Christi Feb. 21, 2013, pet. ref’d) (mem. op., not

designated for publication).

B. Discussion

Generally, a plea is considered voluntary if the defendant was made fully aware of

the direct consequences of the plea. See State v. Jimenez, 987 S.W.2d 886, 888 (Tex.

Crim. App. 1999) (en banc) (citing Bradley v. United States, 372 U.S. 742 (1970)); Pena v.

State, 132 S.W.3d 663, 666 (Tex. App.—Corpus Christi 2004, no pet.). Here, the trial

court gave appellant the statutory admonishments regarding the consequences of her no

contest plea. See TEX. CRIM. PROC. CODE ANN. art. 26.13 (West Supp. 2011) (outlining

admonishments). Appellant affirmed that she understood the implications and potential

sentence corresponding to her no contest plea, both in open court and by signing the trial

court’s written admonishments. She further affirmed that she understood the State’s

recommendation of eight years’ imprisonment, which became the sentence she received.

Appellant thus bears a heavy burden to overcome the presumption that her plea was

voluntarily and knowingly given. See Pena, 132 S.W.3d at 665–66.

2 Appellant’s motion for new trial stated in relevant part:

The Affidavit of [appellant] shows that her plea of ‘No Contest’ was not voluntary and was made with the understanding that she would receive probation. While admittedly the Court admonished Defendant concerning her plea, the other Affidavits submitted support Defendant’s assertion that she was told by her attorney that she would receive probation.

Furthermore, the Affidavits raise questions concerning whether Defendant was properly counseled concerning her plea. 4 A defendant's claim that she was misinformed by counsel, without more, is

insufficient to render a plea involuntary. See Tabora v. State, 14 S.W.3d 332, 334 (Tex.

App.—Houston [14th Dist.] 2000, no pet.); Fimberg v. State, 922 S.W.2d 205, 208 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref'd). Although appellant included her present

complaint in her motion for new trial, there is no record on appeal of any hearing thereon.

Our review of the record reveals no constitutionally deficient conduct.

We assume trial counsel’s conduct constituted sound trial strategy in the absence

of record evidence manifesting counsel’s reasoning, or lack thereof. Lopez, 343 S.W.3d

at 143; see Moreno, 1 S.W.3d at 865. Accordingly, we cannot conclude that the trial

court’s denial was arbitrary or unreasonable. See Cueva v. State, 339 S.W.3d at 857;

see also Bates v. State, 88 S.W.3d 724, 729 (Tex. App.—Tyler 2002, pet. ref’d) (holding

appellant failed the two Strickland prongs where appellant did not present a record from

the hearing on motion for new trial); Clark v. State, 952 S.W.2d 882, 890 (Tex.

App.—Beaumont 1997, no pet.) (same).

We overrule appellant’s issue on appeal.

III. CONCLUSION

We affirm the trial court’s judgment.

GREGORY T. PERKES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 5th day of September, 2013.