Eduardo Rodriguez Garcia v. The State of Texas--Appeal from 252nd District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-02-463 CR
NO. 09-02-464 CR
NO. 09-02-465 CR
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EDUARDO RODRIGUEZ GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Court Cause Nos. 81814, 82327, and 83849
O P I N I O N

Appellant Eduardo Rodriguez Garcia pleaded guilty to two counts of delivery and one count of possession of a controlled substance (cause nos. 82327, 83849, and 81814). In each case, the trial court assessed a punishment of twenty years, to run concurrently, in the Texas Department of Criminal Justice - Institutional Division.

Appellate counsel filed briefs concluding there is no arguable error to present on appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Garcia then filed pro se briefs raising identical issues in each of his three appeals. We consider his issues in this consolidated appeal.

Garcia contends his trial counsel was ineffective in the following respects: opposing Garcia's desire to withdraw his guilty plea; failing to file certain pre-trial motions (motions relating to discovery, limine, and search and seizure); and failing to keep him informed about his case. To prevail on a claim of ineffective assistance of counsel, Garcia must establish that his attorney's performance fell below an objective standard of reasonableness and that there is a reasonable probability the result of the proceeding would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). An appellate court's review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Id. at 63. Generally, trial counsel's conduct is presumed reasonable when the record is silent on the motivations underlying counsel's tactical decisions. Id. Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Id. (citing Thompson v. State, 9 S.W.3d at 813-14 (Tex. Crim. App. 1999)).

Trial counsel informed the court during the sentencing hearing that Garcia first expressed a desire to withdraw his guilty pleas while in the holding cell just prior to the hearing. Addressing the court through an interpreter, Garcia explained he wanted to withdraw his guilty plea because the police arrested his wife as a result of the charges against him. Apparently, he believed that if he pleaded guilty, his wife would not be prosecuted. However, there is nothing in the record to substantiate the claim or to explain the reasons for Garcia's belief. The trial judge explained to Garcia that the cases before the court concerned Garcia, not his wife, and then denied the request to withdraw the pleas. Garcia's guilty plea at the initial plea hearing was voluntary, as we explain in issue two below, and the trial court had discretion to refuse to allow the withdrawal of the guilty plea at the sentencing hearing in this case. Garcia has not shown that the outcome would have been different but for his counsel's actions.

Garcia also claims his trial counsel was ineffective for failing to file certain pre-trial motions. Failure to file pre-trial motions is not ineffective assistance per se. Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.--Beaumont 1996, pet. ref'd). Garcia fails to identify a basis in the record for these motions, what benefit they would have had, or how results would have been different had they been filed. See id. Garcia also claims trial counsel failed to keep him informed about his case; however, there is no support in the record for his claim, and no motion for new trial was filed bringing forth evidence to that effect. Appellant has not shown his trial counsel's performance fell below an objective standard of reasonableness. Issue one is overruled.

In issue two, Garcia argues his guilty plea was involuntary for the following reasons: he pleaded guilty because he was promised his wife would not be arrested; his plea was coerced, and the trial judge should have allowed him to withdraw his plea; and he is from Cuba and does not understand the English language. In reviewing the voluntariness of the guilty plea, we weigh the totality of the circumstances and examine the record as a whole. See Singleton v. State, 986 S.W.2d 645, 651 (Tex. App.--El Paso 1998, pet. ref'd).

If a defendant attests during the initial plea hearing that his plea is voluntary, he bears a "heavy burden" to prove in a subsequent hearing that he entered the plea involuntarily. Coronado v. State, 25 S.W.3d 806, 809 (Tex. App.--Waco 2000, pet. ref'd). At the plea hearing, the trial judge (through the interpreter) asked if Garcia fully understood "everything" he had signed that day with his attorney. Garcia responded "Yes." The plea papers, containing Article 26.13 admonishments and Garcia's express admission of guilt, were signed by Garcia, his trial attorney, the prosecutor, and the trial judge, and were admitted into evidence at the plea hearing. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 2003). Garcia pleaded guilty in each case. The trial judge asked Garcia if he actually committed each offense, and Garcia replied "Yes." After accepting Garcia's guilty pleas, the trial judge stated that the facts justified a "verdict of guilt in each case," but no decision would be made until the court received an "updated report in all of [Garcia's] cases." No mention was made at the plea hearing of any agreement between the State and Garcia regarding Garcia's wife, and the record does not contain such an agreement.

Garcia claims he should have been allowed to withdraw his guilty plea, because the plea was coerced. Generally, a defendant may withdraw his plea at any time before the trial court pronounces judgment or takes the case under advisement. Coronado v. State, 25 S.W.3d at 809. However, once the case has been taken under advisement for a PSI report, the decision to allow the defendant to withdraw his plea rests in the trial court's sound discretion. Id. In that circumstance, the trial judge abuses his discretion only when his ruling lies outside the zone of reasonable disagreement. Watson v. State, 974 S.W.2d 763, 765 (Tex. App.--San Antonio 1998, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)).

The trial court accepted Garcia's guilty pleas in the original plea hearing and then took the case under advisement until the trial judge received the updated reports on Garcia's cases. Accordingly, the trial court had discretion in deciding whether to permit Garcia to withdraw his plea. See DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981). At the sentencing hearing, Garcia asked to withdraw his guilty pleas because of his wife's arrest; he never claimed he was innocent of the offenses. The trial judge explained that the charges before the court were about Garcia, not Garcia's wife. Garcia's claim on appeal that he was coerced into pleading guilty by the State's agreement to refrain from prosecuting his wife is not supported by the record. No document or testimony in the record supports his claim; and no motion for new trial was filed providing any evidence to support his claim of coercion or the existence of such an agreement. The trial judge did not abuse his discretion in refusing to allow appellant to withdraw his plea.

Garcia also claims he did not understand the proceedings, because he is from Cuba and his knowledge of English is extremely limited. An interpreter was present at each hearing, and translations were made for Garcia's benefit. Garcia answered questions posed to him by the trial judge through the interpreter. The trial judge told Garcia what offense each indictment alleged and asked if Garcia pleaded guilty or not guilty to each offense. After each inquiry, Garcia responded "yes." The trial judge also asked whether Garcia understood the papers he had signed, whether he was pleading guilty of his own free will, and whether he actually committed each offense. Garcia responded "yes" to each question. There is nothing in the hearings indicating Garcia did not understand the procedures, and he did not file a motion for new trial with supporting affidavits raising the issue. We conclude Garcia's plea was voluntary and overrule issue two.

In his final issue, Garcia argues the trial court failed to properly admonish him regarding deportation. During the plea hearing, the trial judge did not orally inform Garcia of the deportation consequences associated with his guilty plea. However, Garcia, his trial counsel, the prosecutor, and the trial judge all signed the written admonishments containing the deportation warning. At the plea hearing, Garcia indicated he understood the papers (written admonishments) he had signed. Article 26.13 allows either oral or written admonishments. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989). The written admonishments signed by Garcia in each case comply with Article 26.13, and Garcia does not claim the signature on each admonishment is not his. The admonishments were proper.

Garcia also complains that the record does not state what the interpreter actually said to him during the translations. Whenever a translation was made, the record simply contains a notation that the interpreter was "translating to the Defendant." The record reveals the proceedings were conducted in a proper manner with the interpreter translating at appropriate times. It is the appellant's burden to overcome the presumption of the regularity of the proceedings. Lee v. State, 39 S.W.3d 373, 375 (Tex. App.--Houston [1st Dist.] 2001, no pet.). Garcia did not file a motion for new trial with any attached affidavits raising an issue about any alleged interpreter inadequacy. Issue three is overruled.

The convictions in cause numbers 09-02-00463, 09-02-00 464, and 09-02-00465 are affirmed.

AFFIRMED.

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DAVID B. GAULTNEY

Justice

 

Submitted on August 4, 2003

Opinion Delivered August 14, 2003

Do Not Publish

 

Before McKeithen, C.J., Burgess, and Gaultney, JJ.