Opinion
No. 13-05-624-CR
Opinion delivered and filed June 5, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 214th District Court of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and VELA.
MEMORANDUM OPINION
Appellant, Herminia ("Alicia") Ozuna, pleaded guilty to solicitation to commit capital murder. A jury assessed her punishment at fifty years' imprisonment and a $10,000 fine. By ten issues, appellant contends (1) the trial court erred in failing to sua sponte grant her a mistrial; (2) her guilty plea was not knowingly and voluntarily made, as it was based on her counsel's erroneous representations; (3) the evidence established the defense of entrapment, and the jury charge should have included an entrapment question; (4) the evidence established the affirmative defense of renunciation, and the jury charge should have included a question on that defense; (5) her counsel was ineffective in failing to move for a mistrial at various points in the proceedings; (6) the trial court erred in permitting evidence of extraneous offenses; (7) her counsel was ineffective in failing to call two witnesses; (8) her sentence is "unjust"; (9) the trial court erred in failing to grant her motion for mistrial at the conclusion of the punishment evidence; and (10) the trial court abused its discretion in denying her motion for new trial. We affirm.
See Tex. Penal Code Ann. §§ 15.03(a), (d)(1) (Vernon 2003), 19.03(a)(3) (Vernon Supp. 2007).
Background
Appellant and a co-defendant, Samuel Espinoza, were charged in the same indictment with solicitation to commit capital murder. Both originally pleaded "not guilty," and proceeded to trial before a jury. Shortly after the indictment was read, appellant surprised her counsel by pleading guilty. Arnoldo Campos, a confidential informant, testified that he met with appellant and her father, Augustine Perez, to discuss a potential drug deal. Campos negotiated to purchase thirty kilos of cocaine from appellant. Appellant introduced Campos to Samuel Espinoza, her boyfriend and co-defendant. Espinoza said he could "help out" in finding the cocaine for sale. Appellant and Espinoza were acting as "brokers" for the drug deal. Campos testified that appellant was going to make a profit of approximately $15,000 from the proposed drug sale. Campos testified that at a meeting with Perez, Perez said he was "fed up" with his son-in-law and was willing to pay to get rid of him. Later, at a meeting between appellant, Campos, and Perez, appellant told Campos that she wanted to find someone to kill her common-law husband, Federico Hernandez. Shortly thereafter, Campos tape-recorded one of his conversations with appellant, in which they discussed the drug deal and appellant's desire to have her husband killed. Campos told appellant it would cost about $5,000 to hire someone to kill her husband, and she agreed to pay that amount. Campos met with appellant and Espinoza at a ranch to discuss the details of the drug deal. Campos told appellant he had found a "hit man" to kill her husband. Campos testified that Texas Ranger Roberto Garza was advising him as to how to set up a meeting between appellant and an undercover agent portraying a prospective "hit man." Pursuant to Garza's instructions, Campos told appellant to meet the "hit man" at a specific room at a motel in Corpus Christi, and appellant agreed. Campos further instructed appellant to bring $2,500 with her as half-payment for the "hit." Espinoza was present during this discussion. Campos contacted Garza to let him know that the meeting with the "hit man" had been arranged. Campos testified that appellant called him the day after the meeting with the "hit man" and told him everything was set. John Lubbock, a retired officer with the narcotics unit of the Texas Department of Public Safety, testified that he agreed to work undercover as the "hit man" hired by appellant. Lubbock met appellant and Espinoza at the Corpus Christi motel room. Garza and local law enforcement officers had arranged to videotape the meeting in the motel room. The videotape was shown to the jury. Lubbock identified appellant as the person in the videotape with Espinoza. He testified that appellant gave him a picture of Hernandez (the intended victim), a note with Hernandez's address on it, and forty dollars as down payment for the murder. Appellant wanted Hernandez killed before May 6th because she had a court date concerning custody of their children. Appellant promised to bring the balance of the $5,000 in a couple of days. Garza testified that he arranged to videotape the meeting and was in the adjacent hotel room during the meeting "ready to kick the door down" "in case something went wrong." A day or so later, Garza obtained warrants to arrest appellant and Espinoza. Garza testified that he read appellant her rights and took her voluntary statement. Garza also took a voluntary statement from Espinoza.Failure to Grant Mistrial When Espinoza was Severed
In her first issue, appellant contends the trial court erred in failing to sua sponte declare a mistrial after her co-defendant was severed from the trial. Appellant argues that prior to the severance, she was was being "tried together" with a co-defendant, and was therefore subject to the statutory limitation of six peremptory challenges. According to appellant, after the severance, she was entitled to a jury selected with the full number of peremptory strikes available to her. Appellant argues that the holding in Goode v. State supports her position. In a sub-issue, appellant complains that her trial counsel was ineffective in failing to move for a mistrial after the severance. The State responds that appellant failed to preserve any issue for review because her counsel failed to move for mistrial at the time of severance or otherwise complain about the allocation of peremptory strikes. The State also contends the present case is governed by the Eastland Court of Appeals' opinion in Williams v. State and is distinguishable from Goode. We agree with the State. In Goode, both defendants urged pre-trial motions for severance, and introduced evidence of their intent to pursue antagonistic defenses. Goode also argued that trial under such circumstances would deprive her of peremptory challenges to which she was entitled. The trial court denied the motions to sever, and the defendants were forced to have a joint trial. During trial, the judge found there was antagonism and "mutually exclusive defenses" between the defendants, granted Goode's co-defendant a severance, and continued Goode's trial, denying her motion for a mistrial. The court of criminal appeals reversed, concluding that because Goode was not "tried together" with a co-defendant under article 35.15(a), she was effectively denied the number of peremptory strikes due. We find Goode distinguishable for the same reasons found by the Williams court. In Williams, the defendant filed a pre-trial motion to sever his case from that of his co-defendant, which the trial court denied. After the jury was selected, the trial court granted the State's motion for continuance as to the co-defendant, and he was severed from the case. Williams did not object at that time. After the trial began, Williams moved for a mistrial, contending he had been denied four peremptory strikes; he later specified four jurors that he would have exercised strikes against. The trial court denied the mistrial. On appeal, the Williams court found Goode "factually distinguishable" because in Williams, the severance and mistrial were granted to effectuate a continuance: "Unlike Goode, the trial court did not find that appellant's and [his co-defendant's] defenses were antagonistic[,] thereby forcing appellant to take objectionable jurors." The Williams court further noted, "unlike Goode, appellant did not preserve error in the present case. During voir dire, appellant did not request additional peremptory challenges or identify jurors struck by [his co-defendant] that he would have accepted." Noting that the number of peremptory strikes "is provided by statute," and "is not a fundamental constitutional right," the Williams court concluded that "the number of strikes should be determined at the time they are exercised." The court also noted that, "[t]o adopt appellant's application of Goode would require the trial court to grant a mistrial any time it grants a severance for any co[-]defendant after the jury has been selected." In the present case, as in Williams, (1) appellant failed to preserve error and (2) the severance was granted because of appellant's unexpected guilty plea; there was no finding that appellant's and Espinoza's defenses were antagonistic. Accordingly, we hold that the trial court did not err in failing to sua sponte grant appellant a mistrial. We next address appellant's contention that her trial counsel was ineffective for failing to request a mistrial after the severance. Appellant argues there is "no strategy possible" to explain counsel's failure to move for mistrial on the basis of "the peremptory challenge deprivation." Appellant also argues that her counsel should have moved for a mistrial because she was prejudiced by pleading guilty in front of the jury. Strickland v. Washington, sets forth the standard of review for effectiveness of counsel. Strickland requires a two-part inquiry. The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness. Second, the defendant must further prove there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel's effectiveness. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Generally, the record on direct appeal will be insufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard. We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. In rare cases, however, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy. Here, appellant filed a motion for new trial alleging numerous grounds, including ineffective assistance of counsel, and the trial court held a hearing on appellant's motion. At the hearing, appellant's trial counsel was questioned by her appellate counsel as to trial counsel's actions when appellant pleaded guilty.Q: [Appellant's appellate counsel]: Now, there was also a great deal of discussion with Ms. Ozuna with respect to her plea of guilty in front of the jury. When did she tell you she was gonna do that?
A: [Appellant's trial counsel]: My understanding that — that is in the record. My recollection may not be the best, but from what I recall, it was during the time period when the jury was — in the interim between the time they were taking the oath and the time that she was asked how she would plead. So it was immediately before the time period right before the judge addressed her and asked how she was to plead, that in the matter of time, I would say, certainly within three to five minutes, tops.
. . . .
Q: Now, so she hands you this note and says she's gonna plead guilty. Did you approach the bench, ask to stop the proceedings so that she didn't do that in front of the jury that's sitting in the box?
A: It was my decision not to interrupt the proceedings.
Q: Okay. Have you seen the judgment that was entered in this case? Have you looked at the court's file?
A: Not since the trial.
Q: Okay. Well, the judgment in here says that before she made her plea, she was advised by the court, outside the presence of the jury, of all the things that are necessary, the elements of the offense, the range of punishment, you know, whether she had a right to appeal, if she wasn't a citizen, that she was gonna get deported, those sorts of things. Did you stop the proceedings to give Judge Longoria a chance to do that before she plead in front of the jury?
A: That — no, because she was not in a position to have — to avail herself of those very admonishments.
Q: Why — you couldn't approach the bench and ask him to just stop everything before she does something destructive in front of this jury?
A: In retrospect, that certainly was an option.On cross-examination, appellant's trial counsel was questioned by the prosecutor:
Q: [the State]: The defense lawyer asked you why you didn't ask for a mistrial after this [appellant's guilty plea] happened, or after there was a severance granted. Why not?
A: I did not believe that the Defendant was prejudiced in any way.
. . . .
Q: What about the voir? Dire [sic] and counsel makes a point of saying that maybe you would have done a little differently in picking the jury, maybe have a different number of strikes. Would you have — do you feel that she was harmed or prejudiced by the jury that was picked, notwithstanding the final ultimate decision by the jury?
A: That would involve, basically, second-guessing what any jury would do, and we didn't, obviously, have the benefit of knowing what was to take place.
Q: Did you and [co-defendant Espinoza's counsel] discuss the strikes or, I guess, talk to each other about it?
A: There was some discussion, and, previously, when I indicated the number of strikes, I was incorrect. It was six strikes.
Q: When y'all discussed the thing, do you feel like you-all both had a common interest of what jurors y'all would both want to eliminate?
A: For the most part.
Q: So would your voir dire have been substantially different if you'd known that she was gonna plead guilty ahead of time, notwithstanding the fact that you said it was geared toward punishment?
A: Other than the time that would have been spent addressing the issues at punishment.With respect to appellant's claim that her counsel was ineffective in failing to move for a mistrial because she was deprived of the full number of peremptory strikes, we conclude the record does not support appellant's claim. Her trial counsel testified that his voir dire would not have been substantially different, except that he would have focused on punishment issues. We conclude appellant has failed to establish either prong of Strickland. With regard to appellant's claim that trial counsel was ineffective in failing to move for a mistrial because she was "insurmountabl[y]" prejudiced by pleading guilty in front of the jury, we conclude the record does not support appellant's claim. Appellant does not explain how she suffered prejudice by pleading guilty in front of the jury and cites no authority in support of her claim. Her trial counsel testified that he did not move for a mistrial because he did not believe she had suffered any prejudice. We conclude appellant has failed to establish that her trial counsel rendered ineffective assistance by failing to move for a mistrial after the severance. We overrule appellant's first issue.
Voluntariness of Plea
By her second issue, appellant contends she did not knowingly and voluntarily plead guilty because she acted on her trial counsel's misrepresentation that she would receive probation or a lesser sentence if she pleaded guilty. Appellant also complains that her trial counsel failed to inform her that she could choose between having the judge or jury determine her guilt, and failed to keep her informed about the case. She also asserts that she was so dissatisfied with her trial counsel's services that she hired another lawyer, but the trial court refused to permit the new counsel to assume her representation. According to appellant, "[t]he record shows a reasonable probability that but for the errors committed by trial counsel, [she] would not have plead guilty." Before accepting a plea of guilty or no contest, article 26.13 of the Texas Code of Criminal Procedure requires a trial court to admonish the defendant as to the range of punishment, as well as to other consequences of his plea. The admonishments may be made either orally or in writing. If the admonishments are made in writing, the defendant and his attorney must sign a statement that the defendant understood the admonitions and was aware of the consequences of the guilty plea. Substantial compliance by the court in making the admonishments is sufficient, unless the defendant affirmatively shows that he was unaware of the consequences of his plea and that he was misled or harmed by the court's admonishment. In cases where the trial court fails to admonish, a reviewing court must "independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him of the punishment range." If the record establishes that the trial court properly admonished the defendant about the consequences of his plea, there is a prima facie showing that the guilty plea was entered knowingly and voluntarily. The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. In determining the voluntariness of a plea, we consider the totality of the circumstances, viewed in light of the entire record. Once a defendant has pleaded guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. A plea is not rendered involuntary simply because a defendant received a greater punishment than he anticipated. When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (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. As with other types of ineffective assistance of counsel claims, appellant has the burden to show, by a preponderance of the evidence, that counsel's performance fell below a reasonable standard of competence, and that appellant would, with a reasonable probability, have pleaded not guilty and insisted on going to trial had he been properly advised. In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Waiver of all non-jurisdictional defects that occurred before a guilty plea that was entered without the benefit of an agreed sentencing recommendation, other than the voluntariness of the plea, occurs when the judgment of guilt was rendered independent of, and is not supported by, the claimed error. A claim of ineffective assistance may or may not have a direct nexus with a defendant's guilt or innocence. A judgment of guilt is not rendered independent of, and is not supported by, a claim of ineffective assistance when there is no evidence that the defendant would have pleaded not guilty had it not been for his counsel's alleged ineffectiveness. At the motion for new trial hearing, appellant testified as follows:Q: [Appellant's appellate counsel]: Tell us about — tell us the circumstances about that. After the jury was picked in this case, you decided you wanted to plead guilty, or how — explain how that happened.
A: [Appellant]: I pleaded guilty for the purpose of [trial counsel] told me that if I were to plead guilty, I would get a lesser sentence and/or probation.
Q: Now, when did you have this conversation?
A: That same day that we came to trial.
Q: Now — and, originally, you said that you were not going to plead guilty?
A: Yes, ma'am.
Q: Okay. And then, what happened? You changed your mind?
A: Yes, ma'am, because he told me — he told me that if I were to plead guilty, there was a better chance of me getting — well, he said I would get a lesser sentence.On cross-examination, appellant testified that on the day she pleaded guilty, her trial counsel guaranteed that she would receive a lesser sentence or probation if she pleaded guilty. Appellant also testified as follows:
Q: [Prosecutor]: What about when you did plead guilty, do you remember after you plead guilty and everybody was a little surprised in court?
A: [Appellant]: Yes, sir.
Q: Do you remember Judge Longoria then sent the jury out into the jury room. Correct?
A: Yes, sir.
Q: Do you remember that the judge also had you read over your — go over the admonishments with you about whether you knew what you were doing, whether you were pleading guilty 'cause you were guilty, and if anybody forced you or threatened you to plead guilty. Do you remember Judge Longoria took the time — spent that time with you?
A: Yes, sir.
Q: And you went through all that with Judge Longoria. Correct?
A: Yes, sir.
Q: Did you change your mind at that point after the judge told you what your rights were?
A: No, sir, I didn't change my mind.
Q: Okay. You never asked the judge for any other option, did you?
A: No, sir.Appellant also reviewed the written admonishments and confirmed her signature on the documents:
Q: Okay. So wouldn't it be fair to say, in retrospect, what happened was, you took most people by surprise, including your attorney, by pleading guilty at the last minute, yet, the judge did take the precautions of sending the jury out and going over your rights again. Correct?
A: Yes, sir, that is correct.
Q: And the judge did that orally. Correct?
A: Yes, sir.
Q: And he also had you do the thing in writing. Right?
A: Yes, sir.Appellant's trial counsel also testified regarding the circumstances surrounding appellant's guilty plea:
Q: [Prosecutor]: My question is, did you discuss her options with her?
A: Yes.
Q: Did you tell her she had the right to pick who decided the punishment?
A: That's correct.
Q: And what did she pick?
A: The jury.
Q: The Defendant testified that you told her you guaranteed that if she would plead guilty, that she would get a lesser sentence or get probation, that you guaranteed that to her. Did you do that?
A: That is not correct.
Q: What happened?
A: Well, first of all, no attorney can guarantee the outcome, or, for that matter, the effect of one's election in terms of proceeding on a plea of guilty. That was one of the matters that was addressed in terms of her consideration, but it was entirely her decision.
. . . .
Q: Is that right? And, by the way, after she did plead guilty, isn't it true that the judge read her — did some admonishments to her orally?
A: That's correct, outside the presence of the jury.
Q: And isn't it true that the judge had you go over the written admonishments, also?
A: Yes. And we had a chance to discuss that.
Q: So you went over both her written admonishments with her. Correct?
A: Correct.
Q: And she signed, and did she seem to understand what she was doing?
A: Yes.
Q: In addition to the written admonishments, the Judge admonished her, too?
A: That's correct.
Q: Did she ever indicate she wanted to change her mind and want to plead not guilty?
A: No.The record does not support appellant's contention that she was induced to plead guilty by her counsel's alleged promise that she would receive a lesser sentence or probation. Appellant's trial counsel denied that he guaranteed that if appellant pleaded guilty, she would receive a lesser sentence or probation. Moreover, although appellant testified on direct examination that she "changed her mind" about pleading guilty because of her counsel's promise of a lesser sentence, she testified on cross-examination that she did not change her mind after the judge explained the admonishments to her. We conclude that appellant failed to establish that but for her counsel's alleged promise of a lesser sentence or probation, she would not have pleaded guilty and would have insisted on going to trial. We conclude appellant has failed to meet her burden to demonstrate that her plea was not voluntary. Appellant has also failed to show that her counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for her counsel's errors, she would have pleaded not guilty and insisted upon going to trial. We overrule appellant's second issue.