GUADALUPE RODRIGUEZ SANCHEZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed June 9, 2011.
Court of Appeals
Fifth District of Texas at Dallas
GUADALUPE RODRIGUEZ SANCHEZ, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F09-13178-L and F09-13201-L
Before Justices O'Neill, Francis, and Myers
Opinion By Justice Myers
Guadalupe Rodriguez Sanchez was convicted of aggravated sexual assault of a child under the age of fourteen See Footnote 1 and continuous sexual abuse of a child under the age of fourteen, See Footnote 2 and was sentenced to concurrent terms of life imprisonment. Sanchez argues he was not properly admonished and received ineffective assistance of counsel. We affirm.
Background and Procedural History
In appeal number 05-10-00292-CR, Sanchez was charged with aggravated sexual assault of a child under the age of fourteen, see Tex. Penal Code Ann. § 22.021 (West. Supp. 2010), and in 05-10-00293-CR, he was charged with continuous sexual abuse of a child under the age of fourteen. See id. § 21.02. In 05-10-00292-CR, he waived his right to a jury trial, entered an open plea of guilty, and signed a judicial confession admitting to the charge as alleged in the indictment. The trial court provided oral and written admonishments, accepted the plea, and found Sanchez guilty. The court told Sanchez that, by agreement of the parties, it would assess a concurrent sentence that comported with the jury verdict in the companion case, 05-10-00293-CR.
In 05-10-00293-CR, Sanchez first elected to have the jury determine both guilt/innocence and punishment. But after initially entering a not guilty plea, Sanchez changed his plea to guilty after hearing part of the complainant's testimony. Sanchez then signed a judicial confession admitting to the charge as alleged in the indictment. The trial court provided oral and written admonishments, accepted Sanchez's guilty plea, and instructed the jury to find him guilty. The jury found Sanchez guilty and, after hearing punishment evidence, sentenced him to life imprisonment. The court sentenced Sanchez to a concurrent term of life imprisonment in 05-10-00292-CR.
Sanchez filed separate briefs in these appeals. In his brief in 05-10-00292-CR, Sanchez argues in one point of error that his plea was involuntary because he was not properly admonished, and in 05-10-00293-CR, he contends in two points of error: (1) that he received ineffective assistance of counsel and (2) he was not properly admonished. We will address these issues together.
Sanchez argues that his guilty pleas in 05-10-00292-CR and 05-10-00293-CR were involuntary because the trial court failed to admonish him in accordance with article 26.13 of the code of criminal procedure. He contends he was not admonished that his pleas could result in deportation, exclusion from this country, the denial of naturalization under federal law, and that he would be required to register as a sex offender.
We determine the voluntariness of a guilty plea from the totality of the circumstances viewed in the light of the entire record. Ducker v. State, 45 S.W.3d 791, 796 (Tex. App.--Dallas 2001, no pet.). A guilty plea is generally considered voluntary if the defendant was made fully aware of the direct consequences of the plea. State v. Jimenez, 987 S.W.2d 886, 887 (Tex. Crim. App. 1999).
Article 26.13 of the Texas Code of Criminal Procedure requires that prior to accepting a guilty plea, the trial court must admonish the defendant of the consequences of his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a) (West Supp. 2010). In particular, the trial court is required to admonish the defendant that .if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law[.]. Id. art. 26.13(a)(4).
The court is also required to admonish a defendant that he will be required to register as a sex offender if he is convicted of or placed on deferred adjudication for an offense that requires registration. Id. art. 26.13(a)(5). These admonishments may be made orally or in writing. Id. art. 26.13(d). “If the court makes the admonishments in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea.” Id. When the record indicates that the trial court properly admonished the defendant, a prima facie showing exists that the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). A defendant may still raise the claim that his plea was not voluntary; however, the burden shifts to the defendant to demonstrate he did not fully understand the consequences of his plea such that he suffered harm. Id. A plea is not rendered involuntary merely because a defendant receives a greater punishment than he anticipated. Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.--Dallas 1993, no pet.).
The records in both 05-10-00292-CR and 05-10-00293-CR include a document containing the trial court's written admonishments and Sanchez's statements and waivers. Each document is signed by Sanchez, his attorney, the prosecutor, and the court. In each document, Sanchez was specifically admonished as follows: .If you are not a citizen of the United States, a plea of guilty or nolo contendere may, and under current Federal Immigration rules is almost certain to, result in your deportation, exclusion from admission to the United States, or denial of naturalization.. Under the statements and waivers, Sanchez represented he was competent, understood the nature of the accusation against him, the range of punishment for the offense, and understood .that if I am not a United States citizen, a plea of guilty or nolo contendere will probably result in my deportation from the United States, exclusion from admission to the United States, or denial of naturalization under Federal law.. Sanchez was also admonished in both cases that “I will be required to register as a sex offender if convicted of, or placed on community supervision for, one of the offenses enumerated under Court's Admonition to Sex Offenders, attached thereto.”
Just above his signature, Sanchez acknowledged that he had read and understood, and his attorney had explained to him, all of the admonishments and warnings regarding his plea and further acknowledged his .statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences.. Immediately above defense counsel's signature, counsel acknowledged that he had consulted with appellant on the plea, advised him of his rights, and believed him to be competent. Finally, at the time he entered his plea, appellant responded affirmatively when asked by the trial court if he had gone over all the papers he had signed with his attorney and if he understood all of his rights.
We conclude that the records in both 05-10-00292-CR and 05-10-00293-CR show that the trial court appropriately admonished Sanchez regarding the negative consequences of his guilty pleas, specifically warning not just that deportation was a possibility but that it was .almost certain,. and that Sanchez would be required to register as a sex offender. Furthermore, Sanchez acknowledged that defense counsel explained the admonishments to him and he was pleading guilty freely and voluntarily with full understanding of the consequences. By admonishing Sanchez in writing, the trial court established a prima facie showing that Sanchez's pleas were made voluntarily and knowingly. Because a prima facie showing exists, Sanchez therefore had the burden to show he entered the pleas without knowing their consequences and was harmed. See Martinez, 981 S.W.2d at 197.
Having reviewed the record in both cases, we conclude there is nothing that shows Sanchez did not understand the immigration and deportation or sex offender registration consequences of his guilty pleas. Nor has Sanchez rebutted the prima facie showing of voluntariness. We overrule both of Sanchez's issues.
Ineffective Assistance of Counsel
In appeal number 05-10-00293-CR, Sanchez alleges he received ineffective assistance of counsel because defense counsel “permitted” him “to plead guilty involuntarily to a jury.”
It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant. In other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether
appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance,
and an application for writ of habeas corpus is often the more appropriate vehicle to raise such claims. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Moreover, counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent. Id. at 111.
The Texas Court of Criminal Appeals recognizes a defendant's right to change his plea from guilty to not guilty if the request is timely. In a trial before a jury, the defendant may change the plea at any time before the jury retires to deliberate. Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004). But while a defendant has a right to timely request to change his plea of guilty to not guilty, the trial court has no duty to conduct some special proceeding or to sua sponte withdraw a guilty plea when evidence inconsistent with guilt is introduced. Id. at 350. The Mendez court noted that once a defendant makes a valid waiver of his right to plead not guilty, “it is appropriate that the defendant be required to take some affirmative action to don the armor again.” Absent a timely effort by the defendant to withdraw his plea of guilty, he cannot complain on appeal that the trial court failed to do it for him. Id.
The record shows that, after he was arrested, Sanchez admitted to police investigators that he engaged in vaginal sexual intercourse with the complainant, his girlfriend's daughter, and “the last incident” had occurred about three weeks before the interview. He pleaded not guilty to the continuous-sexual-abuse allegation (05-10-00293-CR).
At trial, the complainant testified that Sanchez, her mother's boyfriend, started to sexually abuse her when she was “eight or nine” years old, and that he touched her “everywhere,” including her “[p]rivate parts” and her “[b]oobs.” The complainant alleged that Sanchez would “wake me up with this knife and tell me to come into the living room,” where he would order her to remove her school uniform. Sanchez applied a baby lotion to the complainant's “butt” and “middle part” (the complainant confirmed that the phrase “middle part” and the terms “front” and “private part” referred to her vagina), and he would put “his middle part on” the complainant's “butt.” The complainant also testified that Sanchez touched the inside of her “butt” “hole” with his “middle part,” and “[w]hen he did it on the front of me, it hurted [sic] real bad. In the back, he started doing [sic] harder and it hurted [sic].” The abuse continued for “[a] couple of years.” According to the complainant's testimony, Sanchez threatened to kill the complainant's mother if complainant told anyone about the abuse.
Before the complainant finished testifying, Sanchez changed his plea to guilty and acknowledged he was “willing to accept responsibility” and “that it not only happened once, but it happened more than once.” During the punishment phase of the trial, Sanchez testified that he initially pleaded not guilty because he “did not know everything,” but he “found out a lot” after listening to the complainant's testimony. Sanchez explained that he could not recall certain details of the abuse (such as abusing the complainant more than once, pulling a knife on her, or threatening her mother) because of prior drug and alcohol abuse. But Sanchez admitted that, after hearing the complainant's testimony, he believed her testimony and realized it was true.
When Sanchez pleaded guilty, he was admonished both orally and in writing and signed a judicial confession. He acknowledged that he understood the charge against him, the proceeding, the evidence that had been presented, evidence that would be presented, and the punishment range for the offense. Before the trial court accepted Sanchez's plea, Sanchez testified that he was satisfied with defense counsel's representation and that counsel had not forced him to change his plea. Sanchez also acknowledged that counsel would continue to represent him and “fight for [his] rights” if he decided not to change his plea.
After Sanchez changed his plea to guilty, the complainant described the sexual assault examination and testified that, after undergoing the examination, she learned that she was pregnant. She testified that she was frightened “[b]ecause I didn't want to have [Sanchez's] baby.” The complainant and her mother ultimately decided to terminate the pregnancy, and DNA testing revealed a 99.998 percent probability that Sanchez was the father of the complainant's baby. The complainant testified on cross-examination that Sanchez's guilty plea made her “feel better” because he had accepted responsibility for his conduct. In his closing argument, defense counsel emphasized to the jury that Sanchez's guilty plea “[t]ook a big weight off [the complainant's] shoulders,” that it was “a good thing that he did,” that it was “going to help [the complainant] get beyond this,” and that “[i]t's moving in the right direction.”
Sanchez alleges that the change of plea was not attributable to any trial strategy because he “could hardly have expected to curry favor [with the jury] by pleading guilty and then calling the complainant a liar.” Yet the record actually shows that Sanchez testified he could not remember certain details of the offense because of prior drug and alcohol abuse. Sanchez also testified that he changed his plea to guilty because, after listening to the complainant's trial testimony, he believed her testimony and realized it was true. As for Sanchez's argument that defense counsel “saved the State from meeting its burden of proof,” the record shows that the State introduced additional evidence of guilt apart from the complainant's testimony, including testimony from school faculty members regarding the complainant's demeanor and behavior at school, and the outcry testimony of the complainant's mother. Indeed, given the evidence of guilt introduced by the State, Sanchez's decision to accept responsibility for his actions may have been one of few potentially mitigating factors in his favor.
Sanchez also argues that his testimony at the punishment phase that he could not remember certain details of the offense undermined his guilty plea. But since “[h]e had already been found guilty” by the court, Sanchez adds, “it was too late for the trial court to sua sponte change [his] plea to not guilty.” Sanchez points to this as further indication that the change of plea was not attributable to any trial strategy. Sanchez's argument, however, rests on cases holding that a trial court commits reversible error if it fails to sua sponte withdraw a guilty plea when the evidence reasonably and fairly raises an issue regarding the defendant's innocence. See, e.g., Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986). The court of criminal appeals has more recently concluded that, while a defendant has a right to timely withdraw a guilty plea, “whether the trial be with or without a jury,” a trial court is under no obligation to change a plea on its own motion. Mendez, 138 S.W.3d at 336, 350. When, as in this case, there is a strong factual basis to support a guilty plea, evidence inconsistent with the guilty plea does not render it involuntary. See North Carolina v. Alford, 400 U.S. 25, 38 (1970); Mendez, 138 S.W.3d at 344, 350. We further note that Sanchez did not challenge the voluntariness of his plea in his motion for new trial, which alleged only that “the verdict is contrary to law and the evidence.” The record does not indicate whether Sanchez changed his plea based on advice of defense counsel. There is no evidence that counsel provided verifiably erroneous information regarding any essential element of the offense, nor that Sanchez entered his plea based on a misunderstanding of the offense. After carefully reviewing the record, we conclude Sanchez's arguments are not supported by the record. Sanchez has failed to meet his burden of showing ineffective assistance of counsel. Furthermore, even if counsel's performance was constitutionally deficient, Sanchez has not shown that the result of the proceeding would not have been different because the testimony of the child victim alone was sufficient to support a conviction for aggravated sexual assault of a child or continuous sexual abuse of a child. See Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005). We overrule Sanchez's final point.
We affirm the trial court's judgments.
Do Not Publish
Tex. R. App. P. 47
Footnote 1 Trial court cause number F09-13178-L; appeal number 05-10-00292-CR.
Footnote 2 Trial court cause number F09-13201-L; appeal number 05-10-00293-CR.