Bernal, Gabriel Ismael v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GABRIEL ISMAEL BERNAL,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-00-00552-CR

Appeal from the

161st District Court

of Ector County, Texas

(TC# B-27,314)

O P I N I O N

Gabriel Bernal was convicted by a jury of aggravated assault, which included a finding that he had used a deadly weapon. The trial court sentenced him to five years in the penitentiary. In this appeal, Bernal urges that his trial counsel was ineffective advising him to elect punishment by the judge, erroneously believing the judge could assess probation. Finding ineffective assistance of counsel that caused harm to appellant, we reverse and remand for a new punishment trial.

Facts

Gabriel Bernal was charged with aggravated assault by shooting at James Claire with a deadly weapon, a firearm. A jury found Bernal guilty of aggravated assault with a deadly weapon as charged in the indictment. Upon advice of counsel, Bernal elected to have the trial court assess punishment. The court sentenced Bernal to five years in the penitentiary.

Trial counsel twice failed to timely file a notice of appeal. Upon filing of a post-conviction writ of habeas corpus with the Court of Criminal Appeals, the trial court was ordered to hold a hearing on the effectiveness of trial counsel. The trial could found that Bernal had been denied effective assistance of counsel both because counsel had not timely perfected appeal, and because he had erroneously advised his client that the judge could assess probation in the case. Finding ineffective assistance in the failure to perfect appeal, the Court of Criminal Appeals issued its mandate granting Bernal=s out-of-time appeal. Appeal was timely perfected to this Court.

We therefore have before us, with benefit of a hearing and the trial court=s findings, appellant=s sole point of error: that trial counsel was ineffective by failing to inform him that the jury, but not the trial court, could grant probation following conviction of aggravated assault with a deadly weapon.

Standard of review

In determining whether counsel=s assistance was reasonably effective during the punishment phase of trial, we view counsel=s representation in its totality. State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991). We must review each case upon its individual facts and circumstances. Id.

Ineffective assistance claim

Tex.Code Crim. Proc. Ann. art. 42.12, ' 3(a) (Vernon Supp. 2002) provides that A[a] judge, in the best interest of justice, the public, and the defendant . . . may suspend the imposition of the sentence and place the defendant on community supervision . . . .@ Among other restrictions on this power to assess a probated sentence, however, a judge may not give probation Ato a defendant when it is shown that . . . the defendant used or exhibited [a] deadly weapon . . . .@ Tex.Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2002). When a jury makes such an affirmative finding in its verdict, this requires the trial judge to enter the finding in the judgment, and thereby prohibits the judge from granting probation. Ex parte Poe, 751 S.W.2d 873, 877 (Tex. Crim. App. 1988).

To support a claim of ineffective assistance where counsel misunderstood the law regarding probation, more must be apparent from the record than trial counsel=s mere mistake. Recer, 815 S.W.2d at 731. Appellant Bernal must show that: (1) he was eligible to receive probation; (2) counsel=s advice to go to the judge for sentencing was not given as part of a valid trial strategy; (3) his decision to have the judge assess punishment was based on the attorney=s advice; and (4) his decision would have been different if counsel had correctly informed him of the law. Id. at 731-32.

Here, there was a hearing on ineffective assistance pursuant to a writ of habeas corpus filed in the Court of Criminal Appeals. Bernal=s trial counsel, Jessie Herrera, testified that he advised his client that the judge could give probation and he should go to the judge for punishment because, AI think we have more of a chance for the judge to get probation than we do with the jury.@ Counsel testified this was not part of any trial strategy, but was just a mistake on his part, because he did not know the trial judge could not give probation in this situation.

Gabriel Bernal testified that he went to the judge for sentencing on the advice of trial counsel. He would have gone to the jury for punishment if he had known the judge could not give probation.

The trial court made findings of fact after the hearing on ineffective assistance of counsel was completed. The court found that Bernal was represented by retained counsel; that defendant wished to seek a probated term if found guilty; that counsel did not file an election to have the jury assess punishment, even though a judge could not give probation following an affirmative finding of deadly weapon use; that counsel did not learn this until it was too late; that the judge assessed a five year prison sentence; that failure to elect the jury for punishment was not the result of any strategy, but resulted from the incompetence of counsel at trial. He found that the defendant=s eligibility for probation had been previously established, that defendant had never been convicted of a felony and he was otherwise eligible. Finally, the trial court found that trial counsel=s representation fell below the constitutional standard and that defendant was harmed as a result.

Thus, all the Recer elements were established in this case. The trial court=s findings are supported by the record, and we agree with the conclusion that trial counsel=s erroneous advice was not reasonably effective assistance of counsel, and that it was harmful. We therefore vacate the trial court=s sentence of five years in the penitentiary, and remand for a new punishment hearing.

Conclusion

We reverse and remand for a new punishment trial.

SUSAN LARSEN, Justice

September 19, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)