ANGEL ROGELIO MATUL v. THE STATE OF TEXAS--Appeal from 185th District Court of Harris County

NUMBERS 13-03-062-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

 ANGEL ROGELIO MATUL, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

On appeal from the 185th District Court

of Harris County, Texas.

MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

 

Appellant Angel Rogelio Matul asserts that his plea of guilty to the offense of aggravated robbery[2] was coerced. By four issues, Matul argues (1) his guilty plea was involuntary, (2) counsel was ineffective, and (3) the trial court should have allowed him to withdraw his guilty plea and (4) should have granted a new trial. The trial court has certified that this is not a plea bargain case, and Matul has the right of appeal. See Tex. R. App. P. 25.2. We affirm.

I. Background

Court documents dated September 30, 2002, show that (1) the State, without an agreed sentencing recommendation ("WOAR"), agreed to a cap on punishment at twenty-five years' confinement in the Texas Department of Criminal Justice; (2) Matul judicially confessed to committing aggravated robbery on or about March 4, 2001; (3) Matul acknowledged in writing his understanding of the proceedings against him and the consequences of his plea of guilty; and (4) Matul applied for probation.[3] On September 30, 2002, Matul appeared before the trial court to enter a plea of guilty to the offense of aggravated robbery. At the plea hearing, the following colloquy between the trial court and Matul ensued:

Q: Mr. Matul, you're before the Court charged with the felony offense of aggravated robbery. How do you plead, sir, to that offense?

A: Guilty.

 

Q: Are you pleading guilty freely and voluntarily?

A: That's the only way I got.

Q: Are you doing this freely and voluntarily?

A: Yes.

Q: Anybody threaten you in any way to get you to plead guilty?

A: Guilty. I'm guilty.

Q: Did anybody make you any promise at all to get you to plead guilty?

A: No, nobody. . . .

Q: The Court finds that Mr. Matul is competent, that his plea is freely and voluntarily made and I will accept his plea of guilty.

The trial court asked:

Q: Now Mr. Matul, I understand that we're going to reset this case until one day next week. . . . for you to bring witnesses so we can have a punishment hearing and bring any witnesses you want or have them write the Court a letter and I'll be sure to read that, okay?

A: Thank you.

 

On October 10, 2002, Matul filed a motion to withdraw his guilty plea, asserting as grounds that the plea was "not true . . . and made/entered at a time when [he] was confused, under pressure, in fear of losing his freedom, and not thinking correctly." On the same day, the trial court convened a hearing on the motion to withdraw his guilty plea. Trial counsel argued that Matul wished to withdraw his plea because "he was unclear about what he was doing, he was under pressure, he was scared. He had no idea. . . . [U]nder oath he's stating now that plea is untrue. He's not guilty." The trial court denied the motion, and the punishment hearing ensued.[4] During the hearing, Matul adduced evidence to support his claim of innocence and the involuntariness of his guilty plea. The State countered with evidence to sustain the guilty plea and evidence on punishment, including evidence of an extraneous aggravated robbery offense. The trial court admitted in evidence two security camera videotapes of the scene, recorded on the date of the offense and on the extraneous offense date.

Matul's wife, Teresa Elias, testified that the man on the videotape was not Matul. Eloy Salgado, an inmate, testified he robbed Grocery Services alone. Richard Latter testified that Matul worked as an independent contractor for his moving company, and that Matul was not the person shown on the videotape.[5]

Matul testified that he "felt pressured" and "didn=t know what to do" when he admitted guilt during the plea hearing. He denied he committed the offense and stated, "Well, I=m innocent. But if they find me guilty for any reason, give me the opportunity for probation . . . ." He further testified that he wanted to go to trial on the date he entered his plea. On cross-examination, Matul testified that, after speaking

 

with the State's witnesses on the morning set for the jury trial, his trial counsel told him that he had no chance of winning and would be sentenced to ninety-nine years in prison. At the time, he told his trial counsel that even if the State had fifty witnesses he wanted a trial. Matul admitted that trial counsel explained the plea documents to him. The prosecutor continued cross-examination as follows:

Q: Did anyone force you to sign the paper? Yes or no?

A: Yes.

Q: Who forced you?

A: What the lawyer told me . . . .

.

Q: And now that the jury is gone and the witnesses are gone, now you're trying to convince the Court that you didn't do it?

A: Well, yes. Because my conscience doesn't permit me. . . .

Q: No one drove your truck on September 1st but you, did they?

A: Nobody drives my truck.

Q: So, on March 4th, when other witnesses saw your truck, no one could be driving that but you, correct?[6]

A: Of course. It would have to be me.

The trial court assessed punishment at fifteen years in the Institutional Division of the Texas Department of Criminal Justice. When asked if he had anything to say before pronouncement of sentence, Matul proclaimed his innocence.

 

Matul filed a motion for new trial asserting as grounds that (1) his plea was involuntary, (2) he believed he could appeal "the plea bargain," and (3) he was coerced into pleading guilty by his counsel's statement that he could not prevail at trial. The trial court convened a hearing on Matul's motion.

Matul's trial counsel testified that on the date of the jury trial, September 30, 2002, he extensively discussed a plea agreement with Matul.[7] Trial counsel testified that he reviewed the plea documents with Matul. Trial counsel conveyed to Matul the strength of the State's case, as he believed was his obligation. Trial counsel testified that Matul had earlier rejected the State's offer of fifteen years in prison but the offer remained viable for months. On the date of trial, Matul again rejected the fifteen-year offer, preferring probation, an offer the State did not make. Trial counsel further testified that Matul received advice from fellow inmates, and he understood his client's confusion because Matul "was listening to two people here, his cell mates and [trial counsel]." Matul told counsel he would appeal if the trial court denied him probation, and that he would do so "regardless of what happened." Trial counsel explained that Matul was "very well entrenched with the idea, from talking with his fellow cell mates, that he could appeal, regardless of whatever happened."

 

Matul testified that he pleaded guilty because he believed he could appeal if he was not granted probation. He testified that trial counsel advised him he could not appeal if he proceeded with a jury trial. Prior to September 30, 2002, he did not plead guilty because he alleged he was innocent. On that date, his trial counsel denied him time to "think about" pleading guilty because the jury was ready. Matul denied he authorized his trial counsel to negotiate a plea. He admitted he initialed statutory admonishments in the plea documents and that trial counsel explained them to him. Matul stated, "He was explaining to me fast. I was just putting down initials. I wasn't really paying any attention. I wasn't thinking right." The following colloquy ensued between the prosecutor and Matul:

Q: So, you knew right here that you could get as little as 5 or as much as 99 for a first degree felony.

A: Of course. . . . I said yes because this is the only road I had to get . . . probation. I had no other alternative.

Q: So, sir, you'd agree with me that I never promised you probation.

A: You didn't, but the attorney did. Well, he didn't promise me anything but B

Q: And the Judge never indicated what she was going to do on punishment.

A: No.

Q: And Mr. Ruiz never told you that if you plead guilty the Judge would give you probation. Is that true or not true?

A: Yes.

After the evidentiary hearing, the trial court denied the motion. This appeal ensued.

II. Voluntary Plea

 

In his first issue, Matul argues his plea was involuntary because he did not adequately understand important rights and consequences of the agreement his trial counsel made with the State. In particular, Matul asserts that he could not have made an intelligent or voluntary decision because his plea was based on inaccurate advice from his trial counsel including that (1) he had the right to appeal his sentence, and (2) he would not be eligible for probation if he proceeded to a jury trial.

A. Standard of Review

We consider the totality of the circumstances in determining the voluntariness of a plea, viewed in the light of the entire record. Ybarra v. State, 960 S.W.2d 742, 745 (Tex. App.BDallas 1997, no pet.). Once a defendant has pled 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. Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.BCorpus Christi 1994, pet. ref=d). The burden of demonstrating the involuntariness of the plea falls on appellant. Id.

B. Jurisdiction

 

The State argues that this Court does not have jurisdiction because this is a plea bargain case and Matul did not meet the requirements of rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 25.2(a)(2). The two basic kinds of plea bargaining are charge bargaining and sentence bargaining. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (en banc). Charge bargaining involves questions as to whether a defendant will plead guilty to the offense that has been alleged or to a lesser or related offense, and whether the prosecutor will dismiss, or refrain from bringing, other charges. Id. Sentence bargaining may be for binding or non binding recommendations to the court on sentences, including a recommended "cap" on sentencing and a recommendation for deferred adjudication probation. Id. There can be other kinds of plea bargains that include other considerations, but they are far fewer in number. See id.

 

In this case, the trial court, without objection, treated the plea consistent with proceedings in a non-plea bargain case. Matul testified that he agreed to enter a plea of guilty with the prospect that the trial court would order probation as punishment. The record contains his application for probation. He requested probation when he testified during the punishment hearing. He requested probation again when he testified during the motion for new trial hearing. During the motion for new trial proceedings, the prosecutor asserted that the State made no promise of probation. The trial court's observation during the same hearing is consistent with our understanding of the term "open plea:" Matul entered a guilty plea without any recommendation from the State with regard to punishment. See Ramirez v. State, 89 S.W.3d 222, 226 (Tex. App.BCorpus Christi 2002, no pet.). On this record, we conclude that Matul entered a plea of guilty without the benefit of an agreed punishment recommendation.[8] Id.; see Perez v. State, 129 S.W.3d 282, 286 (Tex. App.BCorpus Christi 2004, no pet.); Dorsey v. State, 55 S.W.3d 227, 234 (Tex. App.BCorpus Christi 2001, no pet.). Thus, Tex. R. App. P. 25.2 does not apply and we have jurisdiction over this appeal to review the voluntariness of Matul's plea. See Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005); Young v. State, 8 S.W.3d 656, 666 67 (Tex. Crim. App. 2000) (en banc).

C. Discussion

When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985) (per curiam); Dorsey, 55 S.W.3d at 235. The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon1989); Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.BCorpus Christi 2002, no pet.); Dorsey, 55 S.W.3d at 235. In reviewing the voluntariness of a defendant's guilty plea, we examine the record as a whole. Dorsey, 55 S.W.3d at 235.

 

Written admonishments were given to Matul, see Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989), and they were signed by both Matul and his trial counsel. The admonishments state: (1) Matul understands the admonishments and the consequences of his plea, see id.; and (2) the admonishments, waivers, stipulations, and judicial confession were "read to me and explained to me in [Spanish] by my attorney and/or an interpreter, namely [trial counsel], before I signed them, and I consulted fully with my attorney before entering this plea." Matul testified that his trial counsel interpreted the admonishments for him. Further, during the plea hearing, he testified that he understood the charges against him and was entering his plea freely and voluntarily.

The record before us indicates a voluntary plea, and we find nothing which satisfies Matul's "heavy burden" to demonstrate that his plea was involuntary. Matul's signature on the written admonishments constitutes his representation that his plea was made freely and voluntarily. He orally affirmed to the trial court that no one forced or coerced him into making the plea. His written and oral statements demonstrate that he understood the charges against him, had consulted with his counsel, and was entering his plea without threat or promise in exchange for that plea. There is nothing in the record to contradict these statements. We conclude that Matul has not met his burden to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. See id. at art. 26.13(c) (Vernon 1989). Accordingly, we overrule the first issue presented.

III. Effective Assistance of Counsel

In his second issue, Matul argues that his trial counsel was ineffective because he did not properly admonish Matul of the important consequences of his plea. The State counters that Matul's trial counsel fulfilled any legal duty owed to his client.

 

The standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). If a guilty plea is entered on the advice of counsel, that counsel must be competent and render effective assistance. Hill v. Lockhart, 474 U.S. 52, 57 (1985); Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985) (en banc); Gomez v. State, 921 S.W.2d 329, 332 (Tex. App.BCorpus Christi 1996, no pet.). When a defendant challenges the voluntariness of a plea entered on 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." Ex parte Moody, 991 S.W.2d 856, 857 58 (Tex. Crim. App. 1999); see also Strickland, 466 U.S. at 687. A defendant's election to plead guilty, when based upon erroneous advice of counsel, is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991) (en banc).

 

The two complaints Matul claims made his plea involuntaryBtrial counsel's statements that he could appeal the sentence and that probation was unavailable by jury trialBdo not render his plea involuntary. Matul's hopes centered on probation, an option which a jury had the power to grant. See Tex. Code Crim. Proc. Ann. art. 42.12 _' 3g, 4 (Vernon Supp. 2004-05). His trial counsel testified that Matul received advice from fellow cell mates and he could understand Matul's confusion after he entered his guilty plea. As already established, trial counsel explained the written admonishments to Matul. Prior to Matul's guilty plea, trial counsel met with the State's witnesses and communicated the strength of the State's case to Matul. Trial counsel communicated the range of punishment applicable to the charged offense. Matul admitted he understood the range of punishment. Moreover, Matul appealed.

There is nothing in the record to demonstrate that Matul was misled or harmed, even if the advice of which he complains could be considered inaccurate. The record reflects that Matul admitted that trial counsel did not tell him he would receive probation and that the trial court did not indicate what it would do at punishment. That the trial court did not grant Matul the punishment he sought does not render his plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.BDallas 1993, no pet.) (per curiam) (plea is not rendered involuntary simply because a defendant receives a greater punishment than he anticipated).

We conclude that (1) trial counsel's advice was within the range of expected competence, and (2) the record does not establish a reasonable probability that, but for the advice of counsel, Matul would have pleaded not guilty and demanded a trial. See Ex parte Moody, 991 S.W.2d at 857 58; see also Strickland, 466 U.S. at 687. Accordingly, we conclude that Matul has not met his burden to show trial counsel was ineffective. We overrule his second issue.

IV. Withdrawal of Guilty Plea

 

In his third issue, Matul argues that the trial court abused its discretion by denying his motion to withdraw his guilty plea. We have already concluded that Matul entered an open plea. See Perez, 129 S.W.3d at 286; Ramirez, 89 S.W.3d at 226; Dorsey, 55 S.W.3d at 234. Matul admitted his guilt at the plea proceeding. The grounds asserted in support of his motion to withdraw the plea were essentially that he was pressured and afraid. Viewing the record as a whole, we conclude that the trial court did not abuse its discretion by denying Matul's request to withdraw his guilty plea. See Dorsey, 55 S.W.3d at 234. We overrule the third issue presented.

V. Motion for New Trial

In his fourth issue, Matul argues that the trial court abused its discretion by denying his motion for new trial because his plea was involuntary, his trial counsel was ineffective, and he was innocent. The State responds Matul waived error by his guilty plea, or, alternatively, the trial court properly denied the motion for new trial.

On a motion for new trial, the trial court is the sole judge of the credibility of the witnesses, and we may not substitute our judgment for that of the trial court. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We will not overturn a trial court's decision on a motion for new trial unless there is an abuse of discretion. Id. A trial court does not abuse its discretion in denying a motion for new trial in the face of conflicting evidence. Salazar, 38 S.W.3d at 148.

 

We have already concluded that no meritorious grounds are indicated by the record as to Matul's claim of an involuntary plea, including his claim for ineffective assistance of counsel. Regarding Matul's claim of innocence, the trial court heard him testify three timesBat the plea hearing, during the punishment hearing, and during the motion for new trial. During the latter two, Matul proclaimed his innocence. The trial court, however, had already heard his admission of guilt under oath. The trial court was free to disbelieve Matul's innocence claim. On this record, we cannot conclude that the trial court abused its discretion by denying the motion for new trial. Accordingly, we overrule the fourth issue presented.

VI. Conclusion

Having overruled Matul's issues, we affirm.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 16th day of June, 2005.

 

[1] See Tex. R. App. P. 47.4.

[2] See Tex. Pen. Code Ann. _29.03 (Vernon 2003).

[3] For ease of reference, we refer to community supervision as "probation." See Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 2004 05).

[4] An interpreter translated the proceedings. In some instances, Matul spoke in English; at one point, he stated he understood English. When asked if he understood enough "to be comfortable with legal documents in English," Matul responded, "Well, yes, I can understand them. If I read them slow, I can understand them." He was represented by Spanish-speaking trial counsel.

[5] Latter testified he would risk his business on Matul because he was an honest man. He further testified that Matul was nervous around Latter's guns.

[6] Matul pleaded guilty to the indictment which alleged he committed aggravated robbery onor about March 4, 2001. The indictment alleging he committed aggravated robbery on or about September 4, 2001, was dismissed.

[7] Addressing Matul's new counsel, the trial court stated, "you need to understand this wasnot a plea bargain. This was a plea to a punishment hearing. . . . But it wasn't a plea bargain in the true sense of the word. . . . It was a plea of guilty to the Court. . . . I wanted the record to be clear it wasn't a plea bargain where he accepted a certain number of years."

[8] Even if the parties entered into a plea agreement, Matul's appeal would be barred. See Tex. R. App. P. 25.2.