Opinion
No. 05-10-01643-CR No. 05-10-01644-CR
03-21-2012
BRAULIO DELUNA, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued March 21, 2012
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-54660-P, F09-58473-P
OPINION
Before Justices Bridges, FitzGerald, and Lang
pinion By Justice FitzGerald
Appellant Braulio Deluna pleaded guilty to two indictments arising from the same incident. One indictment was for the state jail felony of evading arrest or detention by using a vehicle. The other was for aggravated assault of a public servant. The trial judge sentenced appellant to two years' confinement in a state jail and a fine on the evading-arrest charge, and to ten years' imprisonment and a fine on the aggravated-assault charge. Appellant raises three issues on appeal challenging the voluntariness of his pleas, the effectiveness of his counsel, and the propriety of the denial of his motion for new trial. We affirm.
I. Background
A.Facts
The facts of the case were developed principally at appellant's sentencing hearing.
Police Officer Rogelio Moreno testified that he and Officer Matthew Antkowiak were sent to the Hooters restaurant after a disturbance was reported. When they arrived, a manager came outside, yelling and pointing at a silver Infiniti. The car was stuck in traffic, so Officer Moreno approached the driver and Officer Antkowiak approached the passenger. According to Officer Moreno, he identified himself as a police officer, and when he did so, the driver accelerated and made a hard right turn. Officer Moreno tried to gain control of the steering wheel and to remove the keys from the ignition, and he could tell that Officer Antkowiak was being dragged along on the other side of the car. Officer Moreno let go of the car and fired a shot at the driver, but he hit only the door of the car. The Infiniti crashed into another vehicle a short distance away, right in front of a police substation. Officer Antkowiak testified that he received a traumatic brain injury during the incident.
Appellant's friend Noel Guereca testified that, in May 2009, Guereca, appellant, and others went to a Hooters restaurant in Dallas. They consumed some beer. When appellant and Guereca left, the restaurant manager came out after them because there was some disagreement about whether they had paid their bill. According to Guereca's testimony, they paid what the manager claimed was still owed, and they prepared to leave in appellant's car. Appellant got into the driver's seat, and Guereca got into the passenger's seat. After the car started moving, two Dallas police officers attempted to stop the vehicle, but appellant and Guereca did not realize that the men were police officers, and they thought they were being carjacked. Guereca testified that he never heard Moreno or Antkowiak identify themselves as police officers. Appellant testified that as he was driving away from the restaurant, he saw someone on the passenger's side of the car but did not see anyone on the driver's side. He saw that the person on the passenger's side of the car had a gun, and he panicked. Then he crashed into the other vehicle. He testified that he didn't realize the person on the passenger's side of the car was a police officer until he had gone roughly half to three-fourths of the way from the restaurant to the point where he crashed his car.
Appellant's ex-wife testified that appellant was a responsible father who provided for his two children with her. Appellant's brother testified that he was a good person and a law-abiding citizen. Appellant's wife also testified to his good character.
B.Procedural history
Appellant was charged with evading arrest or detention by using a vehicle and with aggravated assault of a public servant. He entered a plea of guilty to the charges without a plea bargain. The trial judge accepted the plea and deferred sentencing until a pre-sentence investigation could be conducted. At the sentencing hearing several months later, appellant reiterated that he wanted to proceed with his plea, and both sides called witnesses to testify regarding appellant's punishment. At the conclusion of the hearing, the judge pronounced sentence. The judge sentenced appellant to two years' confinement in a state jail and a $1,500 fine on the evading-arrest charge, and to ten years' imprisonment and a $2,000 fine on the aggravated-assault charge.
Appellant timely filed a motion for new trial relating to both convictions. He argued therein that the judge should allow him to withdraw his guilty plea because he had received ineffective assistance of counsel. He contended the result of the ineffective assistance of his attorney was that his guilty plea was not free, knowing, or voluntary. The trial judge conducted a hearing on the motion for new trial and signed an order denying the motion. This appeal followed.
II. Analysis
A.Issue One
In his first issue on appeal, appellant argues that his guilty pleas were not knowing and voluntary because he believed the trial judge would grant him deferred-adjudication probation. We disagree.
At the outset, the State contends that appellant failed to preserve his first issue on appeal in the trial court. We reject the State's contention. Appellant filed a timely motion for new trial in the trial court, in which he specifically argued that his guilty plea was not free, knowing, or voluntary. This was sufficient to preserve error. See Williams v. State, 10 S.W.3d 788, 789 (Tex. App.-Waco 2000, pet. ref'd) (rejecting appellant's complaint about voluntariness of his guilty plea because he did not "preserve this issue by objection, request, or in a timely presented motion for new trial") (emphasis added). We review the trial judge's ruling on a motion for new trial for abuse of discretion. Sanchez v. State, 243 S.W.3d 57, 63 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd).
"No plea of guilty . . . shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary." Tex. Code Crim. Proc. Ann. art. 26.13(b) (West Supp. 2011). Generally, a guilty plea is voluntary if the defendant was made fully aware of the direct consequences of the plea. Ducker v. State, 45 S.W.3d 791, 795 (Tex. App.-Dallas 2001, no pet.). A proper admonishment by the trial judge creates a prima facie showing that the defendant's plea was knowing and voluntary. McGill v. State, 200 S.W.3d 325, 333 (Tex. App.-Dallas 2006, no pet.). Once this prima facie showing of voluntariness is made, the burden shifts to the defendant to show that he entered the plea without knowing its consequence and was thereby harmed. Id. We determine the voluntariness of a guilty plea from the totality of the circumstances viewed in light of the entire record. Ducker, 45 S.W.3d at 796. Appellant does not dispute that he received proper admonishments from the trial judge. Thus, he bore the burden of showing that he nevertheless entered his plea without knowing its consequence and was thereby harmed. He argues that the record of the new-trial hearing shows that he believed and expected that he would be sentenced to deferred-adjudication probation, and therefore, because the judge denied his request for probation, his plea was not knowing and voluntary. Appellant's argument is without merit. The fact that appellant received a more severe punishment than he hoped for does not render his plea involuntary. Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.-Dallas 1999, no pet.); Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.) (per curiam). Although appellant refers us to the legal principle that a guilty plea is involuntary if it is made based on "significant misinformation" from the court or one of its officers, he cites no evidence in connection with his first issue on appeal that he based his guilty plea on such misinformation.
The trial judge did not abuse her discretion. We reject appellant's first issue on appeal.
B.Issues Two and Three
In his second issue on appeal, appellant argues that his guilty plea was not knowing and voluntary because his trial counsel rendered ineffective assistance in several respects. In his third issue on appeal, appellant argues that the trial judge abused her discretion by denying his motion for new trial. In practical effect, both issues amount to complaints about the denial of appellant's motion for new trial based on ineffective assistance of counsel, so we consider them together. We apply an abuse-of-discretion standard of review. Sanchez v. State, 243 S.W.3d 57, 63 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Thus, we determine whether the trial judge's rejection of appellant's ineffective-assistance claim and denial of his motion for new trial were clearly wrong and outside the zone of reasonable disagreement. Id.
An appellant who enters a guilty plea and raises a claim of ineffective assistance of counsel must prove two elements by a preponderance of the evidence: (1) counsel's performance fell below an objective standard of reasonableness, and (2) the alleged deficiency rendered his guilty plea unknowing and involuntary. Thomas, 2 S.W.3d at 641; see also Rodriguez v. State, 899 S.W.2d 658, 666 (Tex. Crim. App. 1995). To defeat the presumption that counsel's performance was reasonable, the defendant must show "that there is, in fact, no plausible professional reason for a specific act or omission." Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). On the hearing of a motion for new trial, the trial judge is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Melton v. State, 987 S.W.2d 72, 75 (Tex. App.-Dallas 1998, no pet.). The trial judge is not required to accept as true the testimony of the accused or any defense witness simply because it is uncontradicted. Id.
Appellant argues that he established the unreasonableness of his attorney's conduct with appellant's evidence of the following facts. Appellant testified that his attorney met with him only a couple of times for about 45 minutes. Appellant testified that his attorney never told him the elements the State had to prove, never went to the crime scene during his investigation, and did not discuss possibly hiring an expert witness to show that appellant did not have time to react. Appellant also testified that his attorney never explained that the jury would have to acquit him if the State did not prove that he acted with some degree of intent to injure Officer Antkowiak. He testified that his attorney did not meet with him to prepare him to testify at the punishment hearing and he argues on appeal that his attorney should have gotten more favorable witnesses, such as appellant's mother, to testify at the punishment hearing. He also testified that his attorney allowed the trial judge to act under the misunderstanding that appellant alone had consumed seven or eight pitchers of beer on the day of the incident. Appellant's attorney did not appear at the new-trial hearing, but a private investigator appeared and testified that he had tried unsuccessfully to serve a subpoena on the attorney so that he would appear.
We conclude that the trial judge did not abuse her discretion. She was the judge of appellant's credibility at the new-trial hearing, and she was not required to accept his testimony as true even if it was not contradicted. See Melton, 987 S.W.2d at 75. Even if she believed his testimony, she could have reasonably concluded that appellant had not shown that there was no plausible reason for many of his attorney's acts. She may have concluded that the attorney's decisions about how much time to spend with appellant and whether to visit the crime scene were strategy decisions within the broad range of professionally acceptable conduct. Moreover, she could consider that, when he pleaded guilty, appellant had stated in open court that he had "been over" the indictment and understood what he was charged with. Given all these facts, it was within the zone of reasonable disagreement for the trial judge to conclude that appellant had not proved the first element of his ineffective-assistance-of-counsel claim. See Gentry v. State, No. 05-08-01032-CR, 2009 WL 4201766, at *2 (Tex. App.-Dallas Nov. 30, 2009, pet. ref'd) (mem. op., not designated for publication) (rejecting ineffective-assistance claim based in part on counsel's failure to explain the charged offense to appellant).
We reject appellant's second and third issues on appeal.
III. Disposition
We affirm the trial court's judgments.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101643F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRAULIO DELUNA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01643-CR
Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 54660-P).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRAULIO DELUNA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01644-CR
Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 58473-P).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
KERRY P. FITZGERALD
JUSTICE