ELOY JAMES GUTIERREZ v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

   NUMBER 13-00-277-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

ELOY JAMES GUTIERREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 105th District Court

of Nueces County, Texas.

MEMORANDUM OPINION ON REMAND

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Eloy James Gutierrez, appeals from the trial court=s order revoking community supervision and sentencing him to ten years= imprisonment. We previously reversed and remanded to the trial court based on trial counsel=s ineffectiveness. See Gutierrez v. State, 65 S.W.3d 362, 367 (Tex. App.BCorpus Christi 2001, pet. granted). The Texas Court of Criminal Appeals granted review and vacated our opinion, remanding to this Court for reconsideration in light of its conclusion that counsel was not ineffective for failing to object when the judge declined to accept the State=s sentencing recommendation. See Gutierrez v. State, 108 S.W.3d 304, 310 (Tex. Crim. App. 2003).

Background

Gutierrez originally pled guilty to attempted sexual assault and was sentenced to ten years= imprisonment and a $750 fine, probated for ten years. The State later moved to revoke Gutierrez=s community supervision. Gutierrez agreed to enter a plea of Atrue@ in return for the State=s recommendation to the trial court of three years= imprisonment. At the revocation hearing, the trial court did not accept the State=s recommendation but instead imposed the original ten-year sentence.

With the court of criminal appeals having concluded that counsel was not ineffective for failing to object to the judge=s sentencing decision, we now address Gutierrez=s four remaining issues on appeal: (1) Gutierrez=s plea of true was not knowingly and voluntarily made because it was induced by the State=s offer of three years=imprisonment, (2) he received ineffective assistance of counsel as demonstrated by counsel=s failure to file a motion for new trial, (3) the trial court erred in failing to timely appoint appellate counsel, and (4) counsel was ineffective for failing to move for an early termination of Gutierrez=s probation.

Plea of True

By his first issue on appeal, Gutierrez complains that his plea of true was not knowingly and voluntarily made because it was induced by the State=s recommendation on punishment, which the trial court refused to follow. Appellate review of community supervision revocation proceedings is limited to a determination of whether the trial court abused its discretion. See Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979); Hays v. State, 933 S.W.2d 659, 660 (Tex. App.BSan Antonio 1996, no pet.).

When reviewing the voluntariness of a plea, we examine the record as a whole and determine whether the plea was entered voluntarily based on the totality of the circumstances. See Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986). When the record shows that the trial court gave an admonishment and the defendant then attested to the voluntariness of the plea, there is a prima facie showing of a knowing and voluntary plea. See Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.BCorpus Christi 2001, no pet.).

Gutierrez read and signed written admonishments regarding the charges against him and the consequences of his pleas of true. He was also given oral admonishments in court by the judge, and he acknowledged that he understood the implication of his plea. The prima facie voluntariness and intelligence of his plea, therefore, is established. He argues, however, that this plea was Ainduced@ by the State=s promise to recommend three years= imprisonment, and the trial court=s subsequent refusal to follow this suggestion rendered his statement involuntary.

A trial court in a revocation hearing has the discretion to impose either the original deferred sentence or a shorter term of confinement. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(a) (Vernon Supp. 2004); see also Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.BCorpus Christi 1996, no pet.). The judge may proceed to dispose of the case as if there had been no community supervision, see Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(a), and no part of the time that the defendant is on community supervision is to be considered as any part of the time that he shall be sentenced to serve. See id. ' 23(b). In community supervision revocation proceedings, the trial court is not bound by any plea bargains or sentencing agreements offered by the parties, and a defendant is not able to withdraw his plea after sentencing if a recommended sentence is not imposed. See Gutierrez, 108 S.W.3d at 309.

The trial court clearly was not bound to follow the State=s recommendations when imposing Gutierrez=s sentence. Furthermore, we see that Gutierrez signed a written admonishment which stated the following:

There is no plea bargaining in revocation or adjudication proceedings. . . . [I]f your plea of true is based on an agreement with the State that the State make a specific recommendation on punishment but the Court does not follow that recommendation, YOU WILL NOT BE ALLOWED TO WITHDRAW YOUR PLEA OF TRUE.

In assessing your punishment, the Court may consider recommendations made by the State or your attorney, but the Court is not bound or obligated to accept or follow any recommendations made. If your community supervision is revoked . . . the Court will consider the evidence and then assess whatever punishment the Court feels is proper regardless of any recommendations made.

Therefore, we conclude that Gutierrez was adequately warned of the effect of his plea and the non-binding nature of any sentencing recommendations, and we determine that the trial court did not abuse its discretion in finding Gutierrez=s plea of true to be made knowingly and intelligently. Gutierrez=s first issue on appeal is overruled.

Ineffective Assistance of Counsel

By his second issue on appeal, Gutierrez alleges that when the trial court assessed a ten-year sentence, it was incumbent upon counsel to file a motion for new trial to develop the facts surrounding the involuntariness of Gutierrez=s plea. He argues that counsel=s failure to file any such motion for new trial deprived Gutierrez of his right to effective assistance of counsel.

Criminal defendants have a right to effective assistance of counsel at a community supervision revocation hearing unless this right is affirmatively waived. Tex. Code Crim. Proc. Ann. art. 42.12, ' 21(d) (Vernon Supp. 2004). This Court evaluates the effectiveness of counsel based on the Strickland standard of review, which is well-established and therefore unnecessary to repeat here. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Munoz v. State, 24 S.W.3d 427, 433-34 (Tex. App.BCorpus Christi 2000, no pet.) (applying the Strickland standard). A plea of guilty is not knowingly and voluntarily entered if made as a result of ineffective assistance of counsel. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Diaz v. State, 905 S.W.2d 302, 308 (Tex. App.BCorpus Christi 1995, no writ).

We have already determined that Gutierrez=s pleas were not rendered involuntary by the trial court=s failure to impose the sentence recommendation by the prosecution. See Gutierrez, 108 S.W.3d at 309. Therefore, it was not necessary for counsel to file a motion for new trial to develop the facts related to this question. Furthermore, there is a presumption that counsel advised Gutierrez regarding the merits of filing a motion for new trial on these grounds, and Gutierrez considered this option and rejected it. See Smith v. State, 17 S.W.3d 660, 662-63 (Tex. Crim. App. 2000); Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). Gutierrez had the burden to demonstrate from the record that counsel=s ineffectiveness resulted in a lack of opportunity to file a motion for new trial. See Cantu v. State, 988 S.W.2d 481, 483 (Tex. App.BHouston [1st Dist.] 1999, pet. ref=d). We have reviewed the record and have found no indication, beyond bare assertions by Gutierrez, that counsel was ineffective and that this ineffectiveness resulted in a lack of opportunity to file a motion for new trial.[1] Gutierrez=s second issue on appeal is overruled.

Appointment of Appellate Counsel

By his third issue on appeal, Gutierrez complains that the trial court erred in failing to timely appoint appellate counsel. Gutierrez filed two pro se motions alleging that his trial counsel was ineffective and that he wanted to appeal. He argues that the trial court did not appoint appellate counsel until it was too late to file a motion for new trial. Because Gutierrez expressed his desire for a new trial and new counsel, he contends that the actions of the trial court deprived him of counsel during a critical period.

A defendant is entitled to counsel during the time period for filing a motion for new trial to assist the defendant in preparing the motion. Cantu, 988 S.W.2d at 483. Appointed counsel remains as defendant's counsel for all purposes until he is expressly permitted to withdraw or the appeal is finished. Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987).

Appellant was represented at trial by court appointed counsel. We presume this attorney continued to represent appellant at all times until appointment of appellate counsel. See Cantu, 988 S.W.2d at 483. We observe from the record that the judge permitted trial counsel to withdraw on June 21, 2000, the same date that Gutierrez=s first appellate attorney was appointed. This first appellate attorney requested to withdraw from the case, and her request was granted on August 7, 2000, the same date that Gutierrez=s second and current appellate attorney was appointed. Therefore, it appears from the record that at no time was Gutierrez without appointed counsel. We must also presume that Gutierrez=s various attorneys were acting effectively at all times and adequately counseled their client unless the record affirmatively shows otherwise. Oldham, 977 S.W.2d at 363. In particular, we note that despite Gutierrez=s complaints, there is no evidence in the record to show that his trial counsel was ineffective. Gutierrez=s third issue is overruled.

Early Termination of Supervision

By his final issue on appeal, Gutierrez alleges that his original trial counsel was ineffective for failing to seek an early termination of his community supervision two years after his conviction. Gutierrez claims that at this point, he had satisfied all requirements of his community supervision and may have been eligible for an early discharge. See Tex. Code Crim. Proc. Ann. art 42.12 ' 20(a) (Vernon Supp. 2004). He believes that because trial counsel failed to seek discharge at an earlier stage, this ineffectiveness is to blame for his remaining on probation and ultimately his violations of that probation. Gutierrez, however, has failed to cite any authority indicating that a defendant=s right to counsel extends to a post-conviction duty to monitor the progress of probation and, if appropriate, ask for early discharge. See Tex. R. App. P. 38.1. He has also failed to cite any authority establishing that the post-conviction probationary period is a critical stage of the proceedings for which counsel is required. See id. Moreover, he has failed to provide any record from which we could evaluate the conduct of Gutierrez=s original attorney with regard to the question of an early discharge from probation. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Accordingly, his fourth issue on appeal is overruled.

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 28th day of July, 2005.

[1]A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is generally underdeveloped and cannot adequately reflect the failings of trial counsel. McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.BHouston [14th Dist.] 2001, pet. ref'd). Therefore, it is critical that the defendant make the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic. Id. This kind of record is best developed by application for a writ of habeas corpus. Id.; see Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).