Nicosio Lee Perez v. The State of Texas--Appeal from 185th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-107-CR

NICOSIO LEE PEREZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 185th District Court

Harris County, Texas

Trial Court # 465,868

O P I N I O N

Appellant Perez appeals from his conviction for aggravated sexual assault of a child (enhanced by a prior felony conviction of indecency with a child), for which he was sentenced to eighteen years in the Texas Department of Criminal Justice.

On June 14, 1993, Appellant pled nolo contendere to the trial court, without an agreed recommendation, to aggravated sexual assault of a child, and pled true to the enhancement paragraph of a prior conviction of the felony offense of indecency with a child.

Because Appellant sought deferred adjudication, no finding of guilt was entered and a pre-sentence investigation was ordered.

On July 28, 1993, after receipt of the presentence investigation report and after hearing, the trial judge entered a finding of guilty to the primary offense, "true" to the enhancement paragraph, and sentenced Appellant to eighteen years in prison.

Appellant appeals on five points of error:

Point one: "Appellant's plea of no contest was not knowingly and intelligently entered, because he was under the mistaken impression that he would receive deferred adjudication. The pleas was therefore an involuntary plea."

At the June 14, 1993, hearing where Appellant entered his plea, the judge asked him if the had been promised anything to induce him to plead "no contest" and "true," and Appellant replied, "We did this on our own, me and my lawyer discussed it." The judge then advised Appellant on the range of punishment as being no less than fifteen years or more than ninety-nine years, or life, plus a fine up to $10,000. Additionally, Appellant signed a sworn statement, admitted into evidence, in which he waived: (1) trial by jury; (2) confrontation and cross-examination of witnesses; and (3) self incrimination. The statement further stated there was no agreed recommendation with the State as to punishment.

The record is clear that at the time he entered his pleas of nolo contendere and "true", that he affirmed he had been promised nothing, understood the range of punishment, and asked the court to consider deferred adjudication probation. The record of the plea contains no indication whatsoever that Appellant believed he would receive deferred adjudication as he asserts in his point.

At the July 28, 1993, hearing, Appellant's counsel argued for deferred adjudication and Appellant himself asked the court to "consider this probation." It was not until after punishment was assessed at eighteen years that Appellant protested "he was under the influence that he would be getting deferred adjudication. Appellant's counsel and the State's counsel both assured the court they had not promised Appellant he would receive deferred adjudication.

The record does not show that Appellant's plea was involuntary, only that he was upset with the eighteen years sentence. He was not eligible for probation from a jury because the minimum sentence exceeded ten years due to his prior felony conviction. Nor was he eligible for ordinary probation from the judge because the charge was aggravated sexual assault. Tex. Code Crim. Proc. 42.12, 3g(a)(1)(E). His only possibility for any type of probation was deferred adjudication from the court. Tex. Code Crim. Proc. 42.12 5.

The fact that the judge did not defer adjudication, but disappointed Appellant by sentencing him to a prison term, did not render the plea involuntary. Graves v. State, 803 S.W.2d 342, 345 (Tex. App. Houston [14th Dist.] 1990); Perrett v. State, 871 S.W.2d 838, 841 (Tex. App. Houston [14th Dist.] 1994).

Point one is overruled.

Points two and three: "Appellant received ineffective assistance of counsel at the time of the entry of his plea of no contest and at sentencing because counsel failed to adequately advise him of the dangers of the procedure ultimately employed," and "because trial counsel permitted Appellant to plead no contest despite his protestation of lack of guilt from the beginning of counsel's representation and her testimony."

To invalidate a plea of guilty or nolo contendere on the ground of ineffectiveness of counsel, the appellant must satisfy the test in Strickland v. Washington, 466 U.S. 668. He must first demonstrate that counsel's representation fell below an objective standard of reasonableness, and second that there is a reasonable possibility that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Flakes v. State, 802 S.W.2d 844, 852 (Tex. App. Houston [14th Dist.] 1990.

Appellant contends his trial counsel failed to adequately advise him of the dangers of the procedure employed. By danger, he refers to the fact the judge sentenced him to prison time. This danger was a certainty if he had done anything else.

Appellant also contends trial counsel was ineffective for permitting him to plead nolo contendere despite his protestations of lack of guilt. The pleas of nolo contendere means "I will not contest it," and is not an admission of guilt. It is rather a decision not to contest the charges for whatever reason. Because it is not an admission, it cannot be used in any civil suit based on the act for which the criminal prosecution is based. Tex. Code Crim. Proc. 27.02 (5). Moreover, the plea to the charge is a personal decision of the accused, not his counsel. Graves, supra, at p. 346.

Appellant has not shown that his counsel's representation was deficient by allowing him to plead nolo contendere. To the contrary, his counsel advised him of the only avenue that could have possibly resulted in any type of probation. The fact that the judge decided not to defer adjudication did not render counsel's assistance ineffective.

Points two and three are overruled.

Point four: "The trial court erred in denying Appellant's motion for a new trial upon learning that the prosecutor violated her agreement not to argue for pen time."

Sentence was imposed July 28, 1993. A motion for new trial was filed August 6, 1993. Hearing on the motion was on October 21, 1993, eighty-five days after imposition of the sentence.

Texas Rules of Appellate Procedure 31(e) provides that the court shall determine a motion for new trial within seventy-five days after the date sentence is imposed and a motion not timely determined by written order, signed by the judge, is overruled by operation of law upon the expiration of the seventy-five day period. Thus, the motion for new trial was overruled by operation of law on October 11, 1993, the seventy-fifth day after the sentence was imposed, and ten days before the hearing was conducted. The trial court lacked authority to grant the motion for a new trial on October 21, 1993. State ex rel Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987); Huizar v.State, 841 S.W.2d 875, 877 (Tex. App. Corpus Christi 1992).

Point four is overruled.

Point five: "Appellant received ineffective assistance of counsel because trial counsel failed to object when the prosecutor violated her agreement not to argue for pen time."

At the October 21, 1993, hearing on the motion for a new trial, Appellant's counsel testified "to the best of my recollection," the prosecutor agreed she would not argue against deferred adjudication, and she did in fact argue against it and asked for pen time. Trial counsel did not object at the sentencing hearing when the prosecutor asked for pen time.

The hearing on October 21, 1993, occurred after the motion for new trial had been overruled by operation of law. A hearing, conducted after a motion for new trial has been overruled by operation of law, is not authorized and will not be considered on appeal. Trevino v. State, 565 S.W.2d 938, 941 (Tex. Crim. App. 1978); Huizar, supra.

Moreover, the record is not positive that there was such an agreement but assuming without deciding there was such an agreement, and that we could consider same, an isolated failure to object to argument does not ordinarily render counsel ineffective. Hicks v. State, 837 S.W.2d 686, 692-93 (Tex. App. Houston [1st Dist.] 1992).

Point five is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 5, 1995

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