LUIS MALDONADO v. THE STATE OF TEXAS--Appeal from 103rd District Court of Cameron County

  NUMBER 13-00-757-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

LUIS MALDONADO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court of Cameron County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Ya ez

Appellant, Luis Maldonado, pleaded guilty, without a plea agreement, to aggravated assault with a deadly weapon, three counts of injury to a child, four counts of indecency with a child, and two counts of aggravated sexual assault of a child. The court sentenced appellant to twenty years confinement for the aggravated assault charge; ten years for each count of injury to a child; twenty years for each count of indecency with a child; and forty years for each count of aggravated sexual assault of a child, with the sentences to be served concurrently in the Texas Department of Criminal Justice, Institutional Division. Appellant challenges his conviction with one issue on appeal. We affirm.

In his sole issue on appeal, appellant argues that his original trial counsel was ineffective. Specifically, appellant alleges that his counsel failed to inform him of the maximum range of the punishment he faced, and, because of his failure to understand the risk, he rejected the State=s offer of a plea bargain, which included a recommendation for twenty years confinement.[1]

We review ineffective assistance of counsel claims under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and Hernandez v. State, 726 S.W.2d 53, 53- 56 (Tex. Crim. App. 1986). That test requires the appellant to show that: (1) counsel's performance fell below an objective standard of reasonableness under prevailing norms; and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; see Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Moreno v. State, 1 S.W.3d 846, 864 (Tex. App.BCorpus Christi 1999, pet. ref'd). We examine the totality of the representation, as reflected in the record, in making this determination. Jackson, 877 S.W.2d at 771. Appellate courts apply a strong presumption that counsel's actions fell within the range of reasonable professional assistance. Id. The appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

As the court of criminal appeals has noted, "only in rare cases will the record on direct appeal be sufficient for an appellate court to fairly evaluate" a claim of ineffective assistance. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). In the instant case, the trial court held a AHearing on Defendant=s Motion to Limit Punishment,@ in which the trial court heard testimony concerning the circumstances surrounding appellant=s original counsel and the plea bargain at issue. Thus, we have before us a record sufficient to fairly evaluate the claim of ineffective assistance.

We hold that appellant has failed to carry his burden of proving ineffective assistance of counsel. Both appellant and his counsel, Jaime Diez, testified at the hearing. Their testimony conflicted on several points. Diez testified that he informed appellant that he faced the Apossibility he could get a lot of years,@ although Diez could not remember the specific number of years. According to Diez, he told appellant that the plea bargain for a twenty-year sentence was a Agood offer.@ Diez also testified that he had a hard time working with appellant, because appellant was hostile towards him. Diez sought to withdraw from the representation after an incident in which appellant was angered by viewing the victims= videotaped allegations against him.

Appellant testified that Diez did not tell him of the range of punishment facing him. Appellant stated he believed the range of punishment was two to twenty years, a figure he derived from hearing other inmates in the county jail discuss their cases. However, appellant also stated that because he was not segregated from the general inmate population, he was instructed not to discuss his case with other inmates, and did not do so.[2] According to appellant, after Diez withdrew, the State withdrew its twenty-year plea bargain offer, and raised the offer to thirty years. Appellant testified that after Diez withdrew, and appellant=s new attorney informed him of the potential range of punishment, appellant never tried to re-urge the twenty-year plea bargain.

The trial court also heard testimony from District Attorney Geoff Henley. Henley testified that when Diez=s replacement, Angel Castro, was appointed, the offer for twenty years was still available, but only for Athe next twenty or fifteen minutes.@[3] Henley also substantially confirmed Diez=s testimony concerning the viewing of the videotapes, which led to appellant becoming angry with Diez.[4]

Appellant has failed to show by a preponderance of the evidence that Diez was ineffective in representing him. Even if appellant was unaware of the specific amount of time for which he could be sentenced if convicted, he knew he was charged with several serious felonies. The record shows that appellant was unhappy with his original attorney, and felt he was being mistreated when his attorney required him to review the victims= taped statements. When the hostility between appellant and Diez began to interfere with the representation, Diez withdrew and new counsel was appointed. At that time, the plea bargain remained available, albeit only briefly, but was not accepted by appellant. The testimony before the trial court shows that appellant and his original counsel did not have a good relationship; however, the record does not show that the representation afforded appellant fell below the objective standard of reasonableness. See Jackson, 877 S.W.2d at 771. Even if appellant=s original counsel failed to specifically inform him of the risk he faced by refusing the plea bargain, appellant knew that he faced multiple felony counts and was told that the State=s original offer was a good offer. Further, District Attorney Henley testified that after appellant=s original counsel withdrew and new counsel was appointed, there was a period during which the twenty-year offer remained available. Thus, even if appellant had met the first prong of the Strickland test, he cannot demonstrate that he meets the second prong, i.e., that absent counsel=s deficient performance, the result of his case would have been different. See Strickland, 466 U.S. at 694.

We AFFIRM the judgment of the trial court.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

23rd day of May, 2002.

[1]It is ineffective assistance for a defense attorney to fail to inform a defendant of a plea bargain. Ex Parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000). However, in the instant case, appellant was informed of the plea bargain.

[2]Inmates accused of sexual crimes, especially against children, are generally segregated from the general inmate population for their own protection.

[3]The Atwenty or fifteen minutes@apparently began to elapse at the time appellant=s new counsel was appointed; however, it is unclear from the record before this Court.

[4]Appellant stated that he felt Diez was subjecting him to mental anguish by having him watch the videotapes of the victims=statements, especially with the District Attorney present. Diez testified that watching the tapes was necessary to develop a strategy for questioning the witnesses at trial, a statement corroborated by the appellant himself. District Attorney Henley testified that Diez did not ask to review the tapes privately with his client without Henley=s presence.