Juan Hernandez Fuentes v. The State of Texas--Appeal from 293rd Judicial District Court of Maverick County

No. 04-99-00730-CR
Juan HERNANDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 293rd Judicial District Court, Maverick County, Texas
Trial Court No. 98-03-04914-CR
Honorable Cynthia L. Mu iz, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen Angelini, Justice

Delivered and Filed: February 7, 2001

AFFIRMED

Juan Hernandez ("Hernandez") pled guilty to the offense of possession of marijuana. In exchange for Hernandez's agreement to plead guilty, the State agreed to a fifteen year cap and further agreed not to oppose the assessment of a lesser sentence. The trial court found Hernandez guilty and sentenced him to fifteen years imprisonment. Hernandez presents two issues in his brief contending: (1) his plea was involuntary; and (2) he received ineffective assistance of counsel rendering his plea involuntary. We overrule Hernandez's issues and affirm the trial court's judgment.

Voluntariness of Plea

In his first issue, Hernandez asserts that his plea was involuntary because he did not understand the consequences of waiving his right to a motion for new trial, motion in arrest of judgment and appeal. (1)

When the record reflects that a trial court appropriately admonished a defendant, a prima facie showing that the defendant's guilty plea was knowing and voluntary is established. Guzman v. State, 993 S.W.2d 232, 235 (Tex. App.--San Antonio 1999, pet. ref'd), cert. denied, 120 S. Ct. 1174 (2000); Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.--San Antonio 1994, no pet.). The burden then shifts to the defendant to show that he did not otherwise understand the consequences of his plea. Crawford, 890 S.W.2d at 944. The entire record must be examined in determining the voluntariness of a plea. Harling v. State, 899 S.W.2d 9, 13 (Tex. App.--San Antonio 1995, pet. ref'd). A plea does not become involuntary simply because a defendant receives a greater punishment than he expected. Crawford, 890 S.W.2d at 945.

Hernandez was properly admonished by the trial court. Hernandez stated that he was entering his plea voluntarily and that he understood the plea bargain agreement. Hernandez executed a stipulation of testimony in which he judicially confessed that he committed the offense. The trial court found that Hernandez entered his plea voluntarily and found him guilty of the offense. The trial court then recessed the hearing to enable the probation office to prepare a pre-sentence investigation report. Approximately nine days later, the trial court reconvened the proceeding for the sentencing phase of the trial. Hernandez's trial counsel and Hernandez were given the opportunity to address the trial court regarding the sentence. In accordance with the terms of Hernandez's plea bargain agreement, the trial court sentenced Hernandez to fifteen years imprisonment. The State then moved to reopen and questioned Hernandez about the waiver of motion for new trial, motion in arrest of judgment and appeal. In response to the State's questioning, Hernandez stated that he understood the consequences of signing the waiver and that he signed the waiver voluntarily; however, Hernandez protested that he was told that he could ask the judge for another opportunity. Hernandez's trial counsel stated on the record that he discussed the waiver with Hernandez at length and that Hernandez understood the nature and consequences of signing the waiver. The trial court gave Hernandez another opportunity to request a lesser sentence.

Based on our review of the entire record, we hold that Hernandez failed to meet his burden of showing that he did not understand the consequences of his plea. Crawford, 890 S.W.2d at 944. Although Hernandez protested that he was told that he could ask the judge for another opportunity, the trial court gave Hernandez two opportunities to request another chance. Hernandez's dissatisfaction with the punishment he received does not render his plea involuntary. Crawford, 890 S.W.2d at 945 (plea not rendered involuntary if defendant receives greater punishment than expected). Hernandez's first issue is overruled.

Ineffective Assistance of Counsel

In his second issue, Hernandez complains that his plea was involuntary because he received ineffective assistance of counsel. Hernandez contends that his trial counsel was ineffective in failing to file a motion to suppress evidence obtained as a result of an illegal search and seizure.

"[T]he two part test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel." Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987). The voluntariness of a plea under this test 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, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).

The failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.--Houston [14th Dist.] 1997, no pet.); Wills v. State, 867 S.W.2d 852, 857 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd). In this case, Hernandez's trial counsel filed numerous pre-trial motions but elected not to file a motion to suppress alleging Hernandez was illegally stopped. The decision not to file such a motion could have been part of trial counsel's trial strategy. Hernandez's second issue is overruled.

Conclusion

The trial court's judgment is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. Because Hernandez's waiver of appeal was executed before trial, we have jurisdiction to consider this appeal. See Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000) (distinguishing pre-trial-waiver-of-the-right-to-appeal cases in addressing validity of waiver of appeal executed after guilt was adjudicated and prior to sentencing); Reyna v. State, 993 S.W.2d 142, 144-45 (Tex. App.--San Antonio 1999, pet. ref'd); Bushnell v. State, 975 S.W.2d 641, 643 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd) (listing three reasons pre-trial waivers are ineffective).