Opinion
NO. 01-17-00529-CR
06-12-2018
TRAVIS DEAN WIMBERLEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 424th District Court Burnet County, Texas
Trial Court Case No. 44915
Pursuant to the Texas Supreme Court's docket equalization powers, this appeal was transferred from the Third Court of Appeals to this court on July 13, 2017. See TEX. GOV'T CODE § 73.001; Order Regarding Transfer of Cases From Courts of Appeals, Misc. Docket No. 17-9066 (Tex. June 20, 2017). We are unaware of any conflict between the precedent of that court and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
MEMORANDUM OPINION
Travis Dean Wimberley pleaded guilty and was convicted of two counts of indecency with a child by sexual contact. He appeals, contending that (1) the trial court's participation in plea negotiations rendered his guilty pleas involuntary, and (2) his trial lawyer rendered ineffective assistance by divulging privileged communications about a plea bargain offered by the State that Wimberley rejected. We affirm.
BACKGROUND
A grand jury indicted Wimberley on four counts of indecency with a child by sexual contact, a second-degree felony, and a fifth count of indecency with a child by sexual exposure, a third-degree felony. See TEX. PENAL CODE § 21.11(a), (d). All counts concerned the same 14-year-old complainant.
In January 2017, the trial court held a brief status hearing. Wimberley expressed dissatisfaction with his lawyer and requested the appointment of new counsel. He stated that his lawyer was pressuring him to sign "a max penalty or max punishment" plea agreement with the State, which he said had made two plea offers involving 10-year sentences. In response, the trial court told Wimberley that his lawyer had no say in what the State chose to offer and that Wimberley's dissatisfaction with the offers was not a valid basis for the appointment of new counsel. In this context, the trial court also told Wimberley of the punishment ranges for the charged offenses: two to 20 years of incarceration for counts one through four and two to 10 years of incarceration for the fifth count. See TEX. PENAL CODE §§ 12.33-.34.
Wimberley asked for a trial setting. The trial court identified the next available trial date and said it would schedule a pretrial hearing beforehand, at which time the court would ask whether a plea bargain had been reached. During the course of this hearing, the trial court stated that Wimberley was entitled to a trial and assured him that he was "more than welcome to have a trial" if he wanted one.
The trial court held a pretrial hearing in March 2017. The trial court again informed Wimberley of the punishment ranges for the charged offenses and admonished him that, if he were to be found guilty of all counts and sentenced consecutively, he could be sentenced to as many as 90 years in prison and that he would have to serve half of any sentence imposed before becoming eligible for probation. It also admonished him that he was eligible to be sentenced to probation. The trial court asked if the State had made its best offer and whether Wimberley understood the offer. Both parties answered in the affirmative, at which point the trial court asked if either party objected to disclosure of the offer's terms. Neither the State nor the defense objected. Then the State disclosed the terms of its offer, which entailed a guilty plea to the fifth count, eight years of incarceration, and registration as a sex offender for a limited period of time. The trial court explained parole eligibility under the plea offer and stated that a conviction on any of the first four counts would require lifetime registration and asked whether Wimberley understood the risk he was taking by rejecting the State's offer. Wimberley said that he understood.
Wimberley rejected the State's plea offer at that time. But almost two months later he pleaded guilty to all five counts without a recommendation as to punishment.
The trial court deferred finding Wimberley guilty pending the receipt of evidence as to punishment. Sitting as factfinder, the trial court heard the evidence. Afterward, the court deferred adjudicating guilt on counts one and two and imposed 10 years of community supervision on Wimberley. It also imposed a $2,000 fine in connection with count one. The trial court entered judgments of conviction on counts three and four and assessed a punishment of four years' incarceration on each count to run concurrently. The State moved to dismiss count five as a lesser-included offense and the court dismissed it.
DISCUSSION
I. Plea Negotiations
Wimberley contends that the trial court violated his right to due process by participating in plea negotiations and that its participation rendered his guilty pleas involuntary. The State responds that Wimberley did not preserve this issue for appellate review. On the merits, the State disputes that the trial court participated in plea negotiations between the State and Wimberley.
To preserve a complaint for appellate review, a defendant must have raised the issue by a timely request, objection, or motion in the trial court. TEX. R. APP. P. 33.1. In Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009), the Court held that errors concerning the trial court's improper intrusion into the plea-bargaining process are subject to Rule 33.1's requirements. Moore, 295 S.W.3d at 333. Thus, "a defendant forfeits error if he fails to object to a trial judge's improper participation in plea negotiations." Hallmark v. State, 541 S.W.3d 167, 170 (Tex. Crim. App. 2017). Because Wimberley did not object during the plea hearing or at any time before the imposition of his punishment, he has not preserved any error for our review. See Hallmark, 541 S.W.3d at 170; Moore, 295 S.W.3d at 333.
II. Ineffective Assistance
Wimberley contends that his lawyer provided ineffective assistance by disclosing privileged communications about plea negotiations before Wimberley pleaded guilty. He argues that his lawyer disclosed this information to the trial court in violation of Rule 410(b) of the Rules of Evidence.
To prevail on his claim of ineffective assistance, Wimberley must prove that his lawyer's performance fell below an objective standard of reasonableness and that this deficiency prejudiced his defense. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). He bears the burden of proof on both issues, and failure to make either showing by a preponderance of the evidence will defeat his ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Rule 410(b) bars the State from introducing the following types of evidence against a defendant who pleaded guilty or participated in plea discussions:
• a guilty plea that was later withdrawn;TEX. R. EVID. 410(b). The rule, however, does not bar a defendant from introducing such evidence in his defense. See TEX. R. EVID. 410(b)-(c); Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016).
• statements made during proceedings in which a guilty plea was made; and
• statements made during plea discussions with the State if they did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.
Wimberley's lawyer did not question him about his guilty plea or plea negotiations. Wimberley's complaint concerns his lawyer's failure to object to the State's disclosure of the terms of its plea offer during the March pretrial hearing and the trial court's subsequent explanation of and questions about the offer. This discussion of the State's offer did not violate the plain terms of Rule 410(b). See TEX. R. EVID. 410(b) (barring evidentiary use against defendant of withdrawn guilty pleas, statements made in guilty plea proceedings, and statements made during plea discussions with the State that did not result in a guilty plea or resulted in a withdrawn guilty plea). Thus, Wimberley has not shown that his lawyer's failure to object was deficient. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (to successfully argue that failure to object to State's questioning was ineffective assistance defendant was required to show that trial court would have erred in overruling objection had it been made); Toledo v. State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (same).
Nor has Wimberley shown any prejudice. He contends that he was harmed by his lawyer's failure to object because the discussion of the State's offer allowed the factfinder to learn that Wimberley considered the State's offer and thus suggested that he was guilty. Wimberley, however, rejected the State's offer and nothing in the record suggests that he considered accepting it. Nor is there any indication that the trial court considered plea negotiations in assessing Wimberley's punishment after Wimberley later pleaded guilty without a plea agreement. The trial court, sitting as factfinder, imposed a significantly shorter term of incarceration than the State had offered. See Rodriguez v. State, 470 S.W.3d 823, 827 (Tex. Crim. App. 2015) (to show prejudice as to ineffective assistance claim based on lawyer's advice in plea negotiations defendant must show that sentence would have been less severe but for deficiency); Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (to demonstrate prejudice where punishment is concerned defendant must show it was substantially likely that he would have received less severe punishment absent counsel's deficient performance).
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Justices Keyes, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).