Summary
holding that "because the trial court deferred adjudication of [the defendant]'s guilt, it lacked jurisdiction to consider a motion for new trial"
Summary of this case from State v. GarzaOpinion
No. 05-02-00153-CR
Opinion issued June 26, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-26741-TJ. AFFIRMED
Before Justices JAMES, BRIDGES, and RICHTER.
OPINION
Regulo Torres Gomez appeals his conviction of possession with intent to deliver cocaine. Appellant pled guilty, and the trial court deferred adjudication of the offense, placed appellant on community supervision for ten years, and assessed a $2500 fine. In three points of error, appellant argues the trial court erred in overruling his motion for new trial and not allowing him to withdraw his guilty plea, his guilty plea was not entered freely and voluntarily, and his guilty plea was involuntary because he received ineffective assistance of counsel. We affirm the trial court's judgment. On February 13, 2001, police went to appellant's home after receiving information that appellant was selling cocaine. Appellant consented to a search, and police found eleven baggies of cocaine in a dresser drawer. Appellant was arrested and charged with possession of cocaine with intent to deliver in an amount more than four grams but less than 200 grams. Appellant filed a motion to suppress the evidence against him. After a hearing, the motion to suppress was denied. However, the State subsequently filed a motion to reduce the charged offense to possession with intent to deliver more than one but less than four grams of cocaine, and the trial court granted the motion. Appellant entered an open plea of guilty and signed a judicial confession. The trial court accepted appellant's guilty plea and passed the proceedings pending the preparation of a presentence report. Nearly three months later, appellant filed a motion to withdraw his guilty plea, which the trial court denied. The trial court deferred adjudication of appellant's guilt and placed him on community supervision for ten years. The trial court denied appellant's motion for new trial, and this appeal followed. In his first point of error, appellant argues the trial court erred in overruling his motion for new trial and denying his motion to withdraw his guilty plea. Initially, we note that, because the trial court deferred adjudication of appellant's guilt, it lacked jurisdiction to consider a motion for new trial. Donovan v. State, 68 S.W.3d 633, 638 (Tex.Crim.App. 2002). Thus, we will not address appellant's first point of error to the extent he complains of the denial of his motion for new trial. As to the issue of whether the trial court erred in denying appellant's motion to withdraw his guilty plea, appellant argues his guilty plea was not voluntary because he hired an attorney to take the case to trial, and he thought he was going to trial and would be able to call witnesses in his defense. An accused may withdraw his plea any time before the trial court takes his case under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979); Watson v. State, 974 S.W.2d 763, 765 (Tex.App.-San Antonio 1998, pet. ref'd). Passing the case for a presentence investigation constitutes "taking the case under advisement when, as here, the judge has admonished the accused, accepted his plea, and accepted evidence. Watson, 974 S.W.2d at 765. At that point, the decision to allow withdrawal of the plea rests in the court's sound discretion. Id. In this case, appellant signed a written admonishment form containing the admonishments required by article 26.13(a) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. Art. 26.13(a) (Vernon Supp. 2003). Above appellant's signature on the admonishment form is a paragraph acknowledging that he has read and understood, and his attorney has explained, the foregoing admonitions and warnings and affirming that the statements and waivers made by appellant are freely and voluntarily made. At the plea hearing, appellant was questioned by the trial court and affirmed that he was pleading guilty freely and voluntarily, no one was forcing him to plead guilty, and his guilty plea could result in his deportation. The State then introduced appellant's signed judicial confession, and appellant's counsel called appellant to testify. Appellant testified that, at all times during counsel's representation, counsel communicated verbally and in writing in Spanish, appellant had no trouble communicating with counsel, counsel also communicated with appellant's wife who helped appellant understand what counsel was telling appellant, and counsel made no promise regarding what would happen to appellant when he came back for a sentencing hearing. In addition, appellant affirmed he understood that his guilty plea meant that he would be "in trouble with [his] status here in this country." Nearly three months later, appellant filed his motion to withdraw his guilty plea, asserting his counsel at the time of the guilty plea did not advise appellant of his options or the magnitude of the charged offense. Appellant asserted his counsel led him to believe that the hearing on his guilty plea was his only choice. Accordingly, appellant argued, his plea was not an "intelligent and voluntary plea" in that it was not entered with "the proper advice of counsel." At the hearing on appellant's motion to withdraw his guilty plea, appellant's wife testified she and appellant thought they were going to trial when they came to the hearing on appellant's guilty plea. According to appellant's wife, appellant's counsel told her to "shut up" when she attempted to talk to counsel and discuss appellant's options. Nevertheless, the record shows appellant entered his guilty plea and signed a judicial confession. Both the trial court and appellant's counsel questioned appellant regarding the voluntariness of his guilty plea and his understanding of the consequences of his plea, including deportation. Under these circumstances, we cannot conclude the trial court abused its discretion in denying appellant's motion to withdraw his plea. See Watson, 974 S.W.2d at 765. We overrule appellant's first point of error. In his second and third points of error, appellant asserts his guilty plea was not entered freely and voluntarily, and his plea was involuntary due to ineffective assistance of counsel. In making these assertions, appellant relies on his arguments under point of error one, with the additional argument that he was misinformed by counsel at the time of his motion to suppress, and counsel failed to call any witnesses to testify. Having already concluded appellant was not entitled to withdraw his guilty plea on the ground that it was involuntary, we decline to further address the issue of the voluntariness of appellant's plea in the context of the grounds raised in appellant's first point of error. To the extent appellant's third point of error raises a claim that his plea was involuntary due to ineffective assistance of counsel, we evaluate (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). However exceptional the circumstances, a defendant's claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary. Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). The record in this case is silent as to why appellant's trial attorney failed to call any witnesses at the hearing on appellant's motion to suppress. Therefore, appellant has failed to rebut the presumption that this was a reasonable decision. See Thompson, 9 S.W.3d at 814. Further, appellant's bare assertion that he was misinformed cannot support a conclusion that appellant's plea was involuntary. See Fimberg, 922 S.W.2d at 208. Under these circumstances, we cannot conclude appellant's plea was involuntary due to ineffective assistance of counsel or otherwise. We overrule appellant's second and third points of error. We affirm the trial court's judgment.