SANTOS CONTRERAS v. THE STATE OF TEXAS--Appeal from 94th District Court of Nueces County

 NUMBER 13-04-276-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

SANTOS CONTRERAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion by Justice Ya ez

On May 10, 2004, appellant, Santos Contreras, entered an Aopen@ plea on an attempted capital murder[1] charge and the trial court assessed his punishment at life imprisonment. In a single issue, he contends that the trial court abused its discretion in not granting his motion for new trial because of ineffective assistance of counsel. We affirm.

The record contains the trial court=s certification that this is not a plea-bargain case and the defendant has the right of appeal.[2]

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.[3]

Standard of Review

An appellate court reviews a trial court's denial of a motion for new trial under an abuse of discretion standard.[4] It is not to substitute its judgment for that of the trial court, but to decide whether the trial court's decision was arbitrary or unreasonable.[5]

Analysis

In appellant=s sole issue, he asserts that the trial court abused its discretion in not granting his motion for new trial because of ineffective assistance of counsel. Specifically, appellant contends his counsel was ineffective because he failed to explain the AState=s offer of thirty . . . years as opposed to an open plea prior to trial.@ In contrast, the State argues that because appellant pleaded guilty without a plea recommendation, he waived this issue on appeal. Therefore, as a preliminary matter, we must address whether appellant waived this issue when he pleaded guilty.

Waiver of all non-jurisdictional defects that occurred before a guilty plea entered without the benefit of an agreed sentencing recommendation, other than the voluntariness of the plea, occurs when the judgment of guilt was rendered independent of, and is not supported by, the claimed error.[6] Thus, we must first address whether the alleged error occurred before appellant entered his plea.

The record reflects that prior to entering an open plea, appellant signed a written statement that he (1) was satisfied with his trial counsel=s representation, (2) understood the court=s admonishments, and (3) was guilty of the charged offense.

At the plea hearing, the court asked appellant, prior to his actual plea, whether he understood all that was taking place and whether his trial counsel had adequately explained the plea to him. Appellant responded that (1) he understood his interpreter, (2) he understood his trial counsel=s Spanish, (3) he understood the proceedings at the plea hearing, and (4) it was his decision to plead guilty.

At the hearing on appellant=s motion for new trial, appellant=s trial counsel testified that prior to the plea hearing, he had explained the implications of an open plea and the written admonishments to appellant, as well as the applicable range of punishment. Additionally, appellant=s testimony at the hearing also reflects that he had always intended to enter a plea of guilty.

Although appellant characterizes the issue on appeal as a challenge to the trial court=s denial of his motion for new trial, a proceeding that occurred after the plea, the entirety of his complaint in his motion for new trial and on appeal is based on alleged ineffectiveness that occurred prior to appellant=s plea. Additionally, appellant does not argue on appeal that his guilty plea was involuntary. On these facts, we conclude that Young[7] applies to our review of appellant=s claim. We must therefore determine if the judgment of guilt was rendered independent of, and is not supported by, the claimed error.[8] That is, we analyze whether the alleged ineffectiveness of counsel has a direct nexus with appellant=s guilt or innocence.[9]

Here, appellant=s claim is only that his counsel failed to explain the consequences of his open plea. There is no evidence that appellant would have pleaded not guilty had it not been for his counsel=s alleged ineffectiveness. We therefore find that the judgment of guilt was rendered independent of, and is not supported by, the alleged ineffective assistance of counsel claimed by appellant. Accordingly, we hold that appellant, by pleading guilty without an agreed punishment recommendation, waived any complaint of ineffective assistance. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

____________________

LINDA REYNA YA EZ,

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this the 21st day of July, 2005.

[1] See Tex. Pen. Code Ann. '' 15.01, 19.03 (Vernon 2004 and Supp. 2004-05).

[2] See Tex. R. App. P. 25.2(a)(2).

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

[4] See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

[5] See id.

[6] Martinez v. State, 109 S.W.3d 800, 801 (Tex. App.BCorpus Christi 2003, pet. ref'd) (citing Young v. State, 8 S.W.3d 656, 666 67 (Tex. Crim. App. 2000) (en banc)).

[7] See Young, 8 S.W.3d at 666-67.

[8] See id.

[9] See Martinez, 109 S.W.3d at 803.