Martin Rodriguez, Jr. v. The State of Texas--Appeal from Criminal District Court No. 4 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Martin Rodriguez, Jr.

Appellant

Vs. Nos. 11-02-00240-CR & 11-02-00241-CR -- Appeals from Dallas County

State of Texas

Appellee

Martin Rodriguez, Jr. entered pleas of Ano contest@ to two charges of aggravated sexual assault of a child under the age of 14. Appellant and the State had not reached a plea bargain agreement. In each cause, the trial court convicted appellant and assessed his punishment at confinement for 30 years. We affirm.

Appellant=s contentions on appeal are the same in both cases. In the first point of error, appellant argues that his plea of no contest was involuntary due to the trial court=s failure to inquire about the existence of a plea bargain. In his second point of error, appellant contends that his plea was involuntary because of the erroneous advice of trial counsel regarding the effect of an open plea.

In order for a plea of guilty or nolo contendere to be appropriate, it must be made freely and voluntarily. TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2003). Proper admonishments by the trial court create a prima facie showing that a plea of guilty or nolo contendere was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Cr.App.1998); Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Cr.App.1985). Substantial compliance with Article 26.13 is sufficient Aunless the defendant was not aware of the consequences of his plea and was misled or harmed by the admonishment.@ Martinez v. State, supra at 197. When the record reflects that a defendant was duly admonished, the defendant has the burden to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Martinez v. State, supra. In considering the voluntariness of a guilty plea, we must examine the record as a whole. Martinez v. State, supra.

The record from the plea hearing shows that the trial court properly admonished appellant that he had been charged with aggravated sexual assault of a child and that the range of punishment was confinement in the penitentiary for a term of 5 years up to 99 years or life and also an optional fine not to exceed $10,000. The trial court also inquired as to whether appellant had discussed with his attorney the indictments, the facts of his cases, the documents that appellant had signed regarding his pleas, his rights, the waiver of those rights, and the sex offender registration laws. Appellant indicated that he and his attorney had discussed all of those matters and that he understood all of them.

We hold that the trial court substantially complied with Article 26.13. Although appellant is correct with respect to the trial court=s failure to inquire in open court about the existence of a plea bargain agreement, such failure did not render appellant=s plea involuntary. Appellant indicated that he had read the plea documents and that he understood them. These documents indicated that appellant was entering an open plea of nolo contendere. The plea documents also contained written admonishments from the trial court, including:

The prosecuting attorney=s recommendation as to punishment is not binding on the Court....If you enter a plea of guilty or nolo contendere and there is no plea bargain, the court may assess your punishment anywhere within the range allowed by law.

Because the trial court substantially complied with Article 26.13, appellant must demonstrate that his pleas were involuntary. Appellant asserts that he was misled by the trial court=s failure to inquire about the existence of any plea bargains because he thought that the trial court would be limited by the State=s recommendation of punishment as reflected in the plea documents, wherein the State recommended 20 years confinement.

The record reflects, however, that appellant received admonishments regarding the full range of punishment and the fact that the trial court could assess appellant=s punishment anywhere within that range. The plea documents signed by appellant reflected that he entered an Aopen plea.@ The portion of the plea documents regarding an AAgreed sentence@ was not filled in but, instead, was left blank. Furthermore, appellant testified at the hearing on his motion for new trial that, when he entered his plea in each cause, he was aware that there was no plea bargain agreement. Trial counsel also testified at the hearing on the motion for new trial that he made it clear to appellant that the trial court did not have to follow the State=s recommendation. Appellant has not met his burden of showing that his pleas were involuntary. The first point of error in each case is overruled.

Appellant=s second point of error also relates to his understanding that the trial court could not assess a punishment greater that 20 years confinement. Appellant contends that trial counsel misled him in this respect. If a defendant pleads guilty or nolo contendere based upon erroneous advice or misinformation from his counsel, his plea may not have been made voluntarily or knowingly. Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Cr.App.1991). When a defendant enters a plea of guilty or nolo contendere based upon the advice of counsel but subsequently challenges the voluntariness of that plea based upon ineffective assistance of counsel, an appellate court must determine (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, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Cr.App.1997), cert. den=d, 525 U.S. 810 (1998).

Appellant testified at the hearing on the motion for new trial that he understood 20 years confinement would be the maximum term of confinement that he would receive. However, other testimony indicates that appellant=s understanding was not based upon erroneous advice or misinformation. Appellant testified that his attorney explained the State=s recommendation of 20 years and told appellant that the trial court Awould probably not go over the recommendation.@ Trial counsel testified that he made it clear to appellant that the trial court was not required to follow the State=s recommendation, that there was no agreement with the State, that the full range of punishment was available to the trial court, and that there was no way of knowing what the trial court would do. Trial counsel admitted that he Amay have said to him I didn=t think that there would be any reason for the Court to go higher than the State=s recommendation....But I didn=t say the Court couldn=t go higher.@

We hold that trial counsel did not render ineffective assistance by giving appellant his professional opinion about what the trial court Awould probably@ do with respect to punishment, even though that opinion turned out to be inaccurate and appellant=s sentence was greater than expected. See Flores v. State, 18 S.W.3d 796, 800 (Tex.App. - Austin 2000, no pet=n); Messer v. State, 757 S.W.2d 820 (Tex.App. - Houston [1st Dist.] 1988, pet=n ref=d). Because appellant has not shown that ineffective assistance of counsel rendered his pleas involuntary, we overrule appellant=s second point of error in each case.

The judgments of the trial court are affirmed.

PER CURIAM

April 3, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.