Narez v. State

Full title: JORGE ERIC NAREZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 22, 2009

No. 05-08-00547-CR (Tex. App. Dec. 22, 2009)

Opinion

No. 05-08-00547-CR

Opinion Filed December 22, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F06-64034-X.

Before Chief Justice WRIGHT and Justices LANG and LANG-MIERS.

MEMORANDUM OPINION

Opinion By Justice LANG.

Jorge Eric Narez appeals the trial court's judgment adjudicating his guilt for the offense of aggravated assault with a deadly weapon. The trial court assessed Narez's punishment at eight years of imprisonment. Narez raises two issues on appeal, arguing: (1) his plea of true was involuntary; and (2) he received ineffective assistance of counsel with regard to the adjudication of his guilt. The trial court's judgment adjudicating guilt is affirmed. We issue this memorandum opinion because the issues in this appeal are settled. See Tex. R. App. P. 47.4.

I. FACTUAL AND PROCEDURAL BACKGROUND

Narez pleaded guilty to aggravated assault with a deadly weapon pursuant to a plea agreement with the State. In the plea agreement, the State agreed to the deferred adjudication of Narez's guilt and that he be placed on community supervision for four years. The trial court accepted Narez's plea of guilty, followed the plea agreement with regard to his punishment, and ordered that Narez's adjudication be deferred. The trial court's order of deferred adjudication contains an affirmative deadly weapon finding. Also, in its written findings and conclusions, the trial court found that Narez used or exhibited a deadly weapon during the commission of the offense. While Narez was on community supervision, the State filed its second motion seeking to proceed to an adjudication of guilt, alleging that Narez had committed both violations of the terms and conditions of his community supervision and new offenses. Narez pleaded true to the violations of his community supervision and not true to the new offenses that were alleged. After a hearing, the trial court found Narez's plea of true was freely and voluntarily made, accepted his plea of true, and granted the State's motion to proceed to an adjudication of guilt. Then, the trial court found Narez guilty of aggravated assault with a deadly weapon based on his earlier plea of guilty and assessed his punishment at eight years of imprisonment.

II. VOLUNTARY PLEA OF TRUE

In his first issue, Narez argues that his plea of true to the violations of his community supervision was involuntary. He claims that his trial counsel repeatedly advised him the trial court could adjudicate him guilty and assess his punishment at community supervision. However, he was not eligible for the trial court to suspend the imposition of his sentence and place him on community supervision. The State responds that Narez's plea of true was voluntary because the trial court properly admonished him as required by article 26.13 of the Texas Code of Criminal Procedure and he admitted to violating the conditions of his community supervision. Also, the State argues there is nothing in the record to show defense counsel misadvised Narez before he pleaded true to the violations of his community supervision and Narez was informed there were several punishment options available to the trial court once he was adjudicated guilty.

A. Standard of Review

A trial court's determination to adjudicate guilt is reviewed in the same manner as a hearing to revoke community supervision in which an adjudication of guilt was not deferred. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2009). An appellate court reviews a trial court's decision to adjudicate a defendant guilty under an abuse of discretion standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (appellate review of order revoking community supervision is limited to determining whether the trial court abused its discretion). When reviewing the voluntariness of a plea of true, an appellate court should consider the entire record. See Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975) (discussing guilty pleas).

B. Applicable Law

Article 42.12 section 5 of the Texas Code of Criminal Procedure relates to deferred adjudication. Tex. Code Crim. Proc. Ann. art. 42.12 § 5. After receiving a plea of guilty or nolo contendere, a trial court may order deferred adjudication, deferring further proceedings, without entering an adjudication of guilt, and imposing community supervision. Id. art. 42.12 § 5(a). When a defendant receives deferred adjudication, no sentence is imposed. See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998); Abron v. State, 997 S.W.2d 281, 282 (Tex. App.-Dallas 1998, pet. ref'd). When there is an affirmative deadly weapon finding, the trial court may order deferred adjudication and impose community supervision. See State v. Mungia, 119 S.W.3d 814, 818 (Tex. Crim. App. 2003); compare Tex. Code Crim. Proc. Ann. art. 42.12 § 5 (deferred adjudication) with Tex. Code Crim. Proc. Ann. art. 42.12 §§ 3, 3g (suspension of sentence). When the trial court defers adjudication of a defendant's guilt and places the defendant on community supervision, the trial court retains jurisdiction over the defendant for the duration of the community supervision imposed, and may revoke, terminate, or modify the terms of the community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 §§ 5(a) and (b), 20, 22. If the defendant violates a condition of his community supervision, the trial court may proceed with an adjudication of guilt on the original charge and assess the defendant's punishment. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b). A defendant's plea of true to violations of the conditions of his community supervision must be voluntary. See LeBlanc v. State, 768 S.W.2d 881, 882 (Tex. App.-Beaumont 1989, no pet.). To be "voluntary," a plea must be the expression of the defendant's own free will and must not be induced by threats, misrepresentations, or improper promises. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (discussing guilty pleas). A defendant's plea is not voluntary when it results from ineffective assistance of counsel. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980) (discussing guilty pleas). Before a trial court may accept a plea of guilty, article 26.13 of the Texas Code of Criminal Procedure requires the trial court to provide the defendant with specific admonishments. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2009). However, article 26.13 only applies when a defendant enters a plea of guilty or nolo contendere in a felony prosecution. Article 26.12 does not apply to a proceeding to adjudicate guilt. See Guitierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003) (discussing applicability of 26.13 to community supervision revocation proceedings). Article 42.12 section 3 of the Texas Code of Criminal Procedure governs community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 § 3. After a conviction, a plea of guilty, or a plea of nolo contendere, the trial court may suspend the imposition of the defendant's sentence and place the defendant on community supervision. Id. art. 42.12 § 3(a). However, when there is an affirmative deadly weapon finding, the trial court may not suspend the imposition of the defendant's sentence and order that he be placed on community supervision. Id. art. 42.12 § 3g(a)(2).

C. Application of the Law to the Facts

The record shows that Narez acknowledged both orally and in writing that he was aware of the consequences of entering a plea of true to the State's allegations in its second motion to revoke community supervision and proceed with an adjudication of guilt. Narez's plea agreement to adjudicate was admitted into evidence without objection. In the plea agreement to adjudicate, Narez stated the following: "I understand the nature of the accusation made against me, the range of punishment of the offense I was placed on community supervision for, and the consequences of a plea of true"; "I affirm that my plea, judicial confession, and stipulation of evidence are freely and voluntarily made, not influenced by any consideration of fear, persuasion, or delusive hope of pardon or parole"; and "my statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences." Also, during the hearing on the State's motion to revoke Narez's community supervision and to proceed to an adjudication of guilt, Narez acknowledged that he understood the consequences of his plea of true. At the beginning of the hearing, Narez told the trial court he wished to proceed with his plea of true, he was pleading true to all of the allegations except for the new offenses that were alleged, and he was entering his plea of true freely and voluntarily. Further, the trial court advised Narez that there was no guarantee regarding his sentence. The following exchange occurred between Narez and the trial court:

[The Court]: You understand you have the right to have several days to prepare for this hearing. In other words, you don't have to go forward today if you don't want to. But the paperwork that you have signed indicates that you want to go ahead and proceed by entering a plea of true to the allegations in the motion and doing what we call an open plea to the Judge. Is that what you want to do today, or did you want to wait several days and think about it?

[Narez]: I want to do this today.

* * * * * * *

[The Court]: The paper work you signed today indicates that you're going to enter a plea of true, and I have now clarified to which allegations in the motion, and a plea of not true on the other two. Do you understand-you understand that when you enter a plea of true-it's my understanding you do not have a plea bargain with the D[istrict] A[ttorney], and that you're asking the Court to set your punishment in this case, whether it be to be continued on [community supervision] or to be given time to serve in the penitentiary. Do you understand that's an open plea, there is no guarantee of what the sentence will be?

[Narez]: Yes, ma'am.

[The Court]: That the Court may or may not have mercy, basically, and that the Court may continue your [community supervision]. The Court can also give you anywhere from two to 20 years in the penitentiary. You understand that?

[Narez]: Yes, ma'am.

* * * * * * *

[The Court]: All right. Mr. Narez, your attorney has just entered a plea of true to all of the allegations in the State's motion against you, except allegation A, which are the two misdemeanor allegations. Is that your understanding and is that your plea of true?

[Narez]: Yes, ma'am.

[The Court]: Are you entering that plea of true freely and voluntarily?

[Narez]: Yes, ma'am.

After Narez entered his plea of true, his attorney questioned him. Narez testified that he desired that the trial court reinstate his community supervision despite his violations of its terms and conditions. However, Narez's attorney misstated that the trial court could adjudicate him guilty and put him on "straight" community supervision, i.e., suspend the imposition of his sentence and place him on community supervision. The following exchange took place:

[Counsel]: And what are you asking the Judge, at this point, to do?

[Narez]: To reinstate me.

* * * * * * *

[Counsel]: Now, there are several options that the Judge can do. The Judge can continue you on [community supervision]. She can revoke your [community supervision] and adjudicate you, and then maybe put you on straight [community supervision]. Also drug treatment, because obviously you have a drug issue with marijuana. And also, we could request that the Judge, since it is deferred, go ahead and find you guilty of a Class A Assault. You understand that?

[Narez]: Yes, ma'am.

* * * * * * *

[Counsel]: If the Judge would agree to continue you on [community supervision] either by not revoking you, not proceeding with adjudication of guilt and leaving you on deferred, or even if she would agree to revoke your [community supervision] and keep you on straight [community supervision] and maybe give you 90 days in jail as a condition or anything like that-or . . . go ahead and find you guilty of a Class A Assault and give you even up to a year in the Dallas County Jail, will you do whatever she asks of you and just-I don't know-tell her that you would do exactly what she would request of you, et cetera?

[Narez]: Yes, ma'am.

During cross examination, the State confirmed that Narez pleaded guilty to aggravated assault with a deadly weapon and that Narez agreed to the plea agreement because otherwise the punishment range was two to twenty years of imprisonment. The following exchange occurred:

[State]: [Y]ou ple[aded] guilty in front of the Judge, saying that you hit and choked the victim in that case?

[Narez]: Yes.

[State]: That's what you ple[aded] guilty to?

[Narez]: Yes, sir.

[State]: Aggravated assault, deadly weapon.

[Narez]: Yes.

* * * * * * *

[State]: And at that time even when you took that deal, you understood that taking the deal was, I get [community supervision] because otherwise I am looking at two to 20 in prison?

[Narez]: Yes, sir.

Having reviewed the entire record, we conclude Narez's plea of true was not involuntary. The record shows the trial court advised Narez what could occur if the trial court accepted his plea of true. Narez signed the plea agreement to adjudicate, which was admitted into evidence without objection, stating he understood the consequences of his plea of true and made that plea freely and voluntarily. Narez only pleaded true to some of the alleged violations of the conditions of his community supervision, i.e., not the new offenses that were alleged. Further, during the hearing, he stated that he was pleading true freely and voluntarily. After he pleaded true, Narez's counsel did misstate that the trial court could adjudicate him guilty and put him on "straight" community supervision. However, during cross examination, the State clarified that Narez had pleaded guilty to aggravated assault with a deadly weapon and Narez understood he received deferred adjudication community supervision because of the plea agreement, otherwise he was facing two to twenty years of imprisonment. Narez's first issue is decided against him.

III. EFFECTIVE ASSISTANCE OF COUNSEL

In his second issue, Narez argues he received ineffective assistance of counsel with regard to the adjudication of his guilt. Narez argues his trial counsel incorrectly advised him that he was eligible for community supervision after the trial court adjudicated him guilty. However, he was not eligible for the trial court to suspend the imposition of his sentence and place him on community supervision once he was adjudicated guilty because there was an affirmative finding that he had used or exhibited a deadly weapon during the commission of the aggravated assault. The State responds that there is no evidence in the record that Narez's trial counsel incorrectly advised Narez before he pleaded true to the violations of the conditions of his probation.

A. Applicable Law

To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews, 159 S.W.3d at 101; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. A "reasonable probability" has been interpreted as "a probability sufficient to undermine confidence in the outcome." Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at 694). To apply the standard "but for counsel's error," an appellate court must determine that trial counsel erroneously advised appellant. See Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). When appellant enters a guilty plea, he satisfies the second part of the Strickland test if he shows there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty but rather would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). Ineffective assistance of counsel claims must be firmly founded in the record and not based on retrospective speculation. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Ordinarily, this type of record is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial. See Perez v. State, 56 S.W.3d 727, 731 (Tex. App.-Houston [14^th Dist.] 2001, pet. ref'd).

B. Application of the Law to the Facts

Even if trial counsel's performance fell below an objective standard of reasonableness, Narez must show a reasonable probability exists that, but for trial counsel's errors, the result would have been different. In his brief, Narez states that he "would submit had he known that he was not eligible for community supervision he would not have proceeded to a hearing on the same day his [t]rial [c]ounsel was appointed but would have explored plea bargaining options with the State that would have probably resulted in a lesser sentence." Narez does not provide references to the record to support this assertion or cite to any case law. Accordingly, we conclude Narez has not shown he received ineffective assistance of counsel because he has not shown that but for trial counsel's errors, the result would have been different. Narez's second issue is decided against him.

V. CONCLUSION

Narez's plea of true was not involuntary and Narez has not shown he received ineffective assistance of counsel with regard to the adjudication of his guilt. The trial court's judgment adjudicating guilt is affirmed.