Jose Nino v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-99-00125-CR
Jose NINO,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-0832
Honorable Sharon MacRae, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: February 9, 2000

AFFIRMED

Jose Nino ("Nino") appeals his conviction for indecency with a child via contact. In two issues, Nino challenges his conviction on the basis that he entered an involuntary plea. We overrule Nino's challenges and affirm the trial court's judgment.

Factual and Procedural Background

Nino pled no contest to a two count indictment alleging aggravated sexual assault with a child and indecency with a child via contact. Nino entered into a plea agreement with the State which provided for a plea of no contest to indecency with a child, a six-year term of confinement, a $6,000 fine, and a stipulation for the State to remain silent on the issue of deferred adjudication. In open court, the trial judge admonished Nino on the terms of his plea and denied Nino's request for deferred adjudication. In two issues, Nino first complains his plea was involuntary due to ineffective assistance of counsel, and second, the trial court erred in failing to sentence him pursuant to the plea bargain agreement.

Ineffective Assistance of Counsel

We evaluate a claim of ineffective assistance of counsel arising out of the plea process under the Strickland test. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Under this test, a defendant must first show that his trial counsel made such serious errors that the attorney was not functioning effectively as counsel, and second, that he was prejudiced by this performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence and the reviewing court applies a strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997). To demonstrate prejudice, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have entered his plea and would have insisted on proceeding to trial. Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987).

Nino argues his counsel's unpreparedness at trial coerced him to enter his plea of nolo contendere. Specifically, Nino complains that counsel filed three motions for continuance because he had insufficient time to prepare for trial. The record reflects that the trial court granted the first motion, however, no rulings were entered on the later two. As a result of these alleged delays, Nino contends counsel's unpreparedness induced him to enter an involuntary plea. We reject Nino's contentions in light of the trial court's thorough admonishments regarding Nino's plea. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.)(holding that proper admonishments by the trial court create a prima facie showing that a guilty plea was knowing and voluntary). The record reflects that the trial court counseled Nino on the nature of the charged offense, apprised him of the consequences of jury waiver, and accepted Nino's statement that his plea was voluntary and in his best interest. Thus, even if we assume counsel failed to properly prepare for trial, in light of Nino's responses to the admonishments, Nino fails to demonstrate any prejudice. See Ex Parte Pool, 738 S.W.2d at 286. We overrule Nino's first issue.

Adherence to Plea Bargain Terms

In his second issue, Nino argues the trial court failed to sentence him in accordance with the

terms of the plea bargain or properly notify him of his right to withdraw his plea. Nino claims part of the plea agreement contained a provision awarding deferred adjudication. We reject Nino's arguments based upon the documentary evidence and the trial court's admonishments to Nino in open court.

First, the record contains the plea bargain document entered into by Nino and the State. In addition to an agreement to proceed on the indecency count, a six-year confinement period, and a $1,000 fine, the agreement specifically provides that the State "will make no recommendation of Defendant's deferred adjudication/community supervision application." Second, we consider the following exchanges between the trial court and Nino regarding the terms of the plea bargain:

THE COURT: Okay. In exchange for your plea of no contest, ya'll have come to a plea agreement?

DEFENDANT: Yes, ma'am.

THE COURT: That calls for you to plead to Count 2 for a recommendation of six years in the state prison, $1,000 fine, and the State is taking no position on whether or not you should receive a deferred adjudication.

****

THE COURT: All right. Now, so you are asking for a deferred adjudication and they're taking no position on whether you should get it or not.

DEFENDANT: Yes, Your Honor.

This exchange clearly reflects the trial court's proper recitation of the plea bargain agreement, and Nino's acquiescence to the agreement's terms. Accordingly, we overrule Nino's second issue and affirm the trial court's judgment.

Catherine Stone, Justice

DO NOT PUBLISH