Rosario Flores v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-00-00084-CR
Rosario FLORES,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CR-3012A
Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: March 7, 2001

AFFIRMED

Pursuant to a plea bargain, Rosario Flores pled nolo contendere to aggravated assault and was sentenced within the terms of the agreement to twelve years confinement. On appeal, Flores contends his plea was involuntary due to ineffective assistance of counsel. (1)We affirm the judgment of the trial court.

Because Flores contends ineffective assistance of counsel rendered his plea involuntary, we have jurisdiction to consider the appeal even though Flores was sentenced within the terms of the plea bargain and the notice of appeal does not state it is taken on the grounds allowed under Tex. R. App. P. 25.2(b)(3). See Martinez v. State, 5 S.W.3d 722, 725 (Tex. App.-San Antonio 1999, no pet.). We review the entire record to determine if a guilty plea was voluntarily made. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Gonzales v. State, 963 S.W.2d 844, 846 (Tex. App.-San Antonio 1998, no pet.). When the trial court properly admonishes the defendant, either in writing or orally, voluntariness is presumed. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989); 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 he pled guilty without understanding the consequences of his plea and, as a result, suffered harm. Id.; Cantu v. State, 993 S.W.2d 712, 717 (Tex. App.-San Antonio 1999, pet. ref'd); Gonzales, 963 S.W.2d at 847; see also Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989).

To evaluate a claim of ineffective assistance of counsel arising out of the plea process, we apply the well known Strickland test. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Ex parte Pool, 738 S.W.2d 285, 286 (Tex.Crim.App.1987); Hernandez v. State, 726 S.W.2d 53, 56 (Tex. Crim. App.1986). The voluntariness of a plea under Strickland 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 pled guilty and would have insisted on going to trial. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.1997); Ex parte Pool, 738 S.W.2d at 286.

In this case, Flores raised the issue of voluntariness in a motion for new trial. The judge presiding over the motion for new trial is the trier of fact, and the trial judge's findings should not be disturbed absent an abuse of discretion. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Guevara v. State, 4 S.W.3d 771, 779 (Tex. App.-San Antonio 1999, no pet.). We will reverse only if the trial court's decision is arbitrary or unreasonable. Guevara, 4 S.W.2d at 779.

The record shows Flores was fully admonished in writing and orally by the trial judge as to the range of punishment and the terms of the plea agreement before he entered his plea. The evidence presented at the hearing on the motion for new trial was conflicting. Flores testified counsel led him to believe he would receive probation because he had no prior history of criminal behavior. Counsel testified he was confident Flores was a good candidate for probation but he also fully explained to Flores the possibility of prison and the discretion of the trial judge to grant or deny probation.

The trial court was entitled to believe the testimony of trial counsel and disbelieve the testimony of Flores. We will not substitute our judgment for that of the trial court. We hold the trial court did not abuse its discretion by denying the motion for new trial. We find no other evidence in the record that Flores was mislead as to the consequences of his plea or that counsel did not provide competent and reasonable advice during the plea process. Accordingly, we hold Flores failed to demonstrate his guilty plea was involuntary. We affirm the trial court's judgment.

PER CURIAM

DO NOT PUBLISH

1. In his second, third, and fourth points of error, Flores contends he cannot receive meaningful appellate review of his complaint because no reporter's record of the hearing on motion for new trial was filed in the appeal. Flores's complaints about the lack of a record on the motion for new trial are moot because the record was in fact filed in this court.