JOSE LUIS DE LA GARZA v. THE STATE OF TEXAS--Appeal from 197th District Court of Cameron County

NUMBER 13-03-350-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JOSE LUIS DE LA GARZA, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 197th District Court of Cameron County, Texas.

MEMORANDUM OPINION

 
Before Justices Ya ez, Castillo, and Garza
Memorandum Opinion by Justice Garza

The State charged appellant, Jose Luis De La Garza, with felony assault family violence (1) and he was convicted on May 28, 2003. The indictment contained an enhancement count for two prior misdemeanor assault family violence convictions. (2) Prior to entering his guilty plea, appellant filed a Motion to Set Aside Indictment for Want of Jurisdiction, claiming that the district court did not have jurisdiction because his two prior misdemeanor family violence convictions were un-counseled. After a hearing, the trial court denied appellant's motion. Appellant subsequently pled guilty and was informed by the trial court that he would have the right to appeal. The trial court sentenced appellant to five years in the Texas Department of Criminal Justice-Institutional Division, with such incarceration being suspended, and placed appellant on community supervision for a period of eight years.

Appellant collaterally attacks his two prior misdemeanor convictions, (3) asserting that (1) the absence of counsel on his prior misdemeanor convictions for family violence violated his Sixth Amendment right to counsel and therefore could not be used for enhancement purposes; (2) his waiver of his right to counsel was invalid because the trial court failed to admonish him about the dangers and disadvantages of self-representation; (3) the trial court failed to inquire about his age, education, and experience to determine whether there was a voluntary, knowing, and intelligent waiver; and (4) his guilty plea was involuntary. We affirm the judgment of the trial court.

I. Alabama v. Shelton

Appellant argues that his prior un-counseled convictions are unconstitutional and cannot be used to enhance the offense in the present case from a misdemeanor to a felony. Specifically, he argues that the United States Supreme Court's ruling in Alabama v. Shelton, 533 U.S. 654, 659 (2002), holding that there is a Sixth Amendment right to counsel in misdemeanor cases where a suspended sentence is imposed, renders his earlier convictions invalid because he was not represented by counsel and his waiver of his right to counsel was invalid.

In Shelton, the Court considered whether a defendant sentenced to a suspended sentence of imprisonment has a Sixth Amendment right to counsel. Id. Shelton was convicted of third-degree assault in an Alabama state court and was sentenced to a suspended 30-day prison sentence, two years' unsupervised probation, and monetary penalties. Id. The Court held that a suspended sentence is a "term of imprisonment" requiring counsel even though incarceration is not immediate or inevitable Id. The Court explained that "a suspended sentence is conceptually different from a sentence of probation." See Id. at 662; see also United States v. Perez-Macias, 335 F.3d 421, 426 (5th Cir. 2003) (quoting Shelton, 535 U.S. at 662). "Suspended sentences are usually imposed in conjunction with probation so that if a defendant commits another crime or violates a condition of probation, his suspended sentence is activated." Perez-Macias, 335 F.3d at 426. The Court noted that "[i]f a defendant receives only a sentence of probation, he is sentenced to community release with conditions; he does not receive a sentence of imprisonment." Id. The Court held that "a suspended sentence that may end up in the actual deprivation of a person's liberty may not be imposed unless the defendant was accorded the guiding hand of counsel in the prosecution for the crime charged." Shelton, 535 U.S. at 658 (internal quotations omitted).

In the present case, there is no dispute that appellant was entitled to counsel at his trial for the misdemeanors. See Trevino v. State, 555 S.W.2d 750, 751 (Tex. Crim. App. 1977) (stating criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed). Appellant received a suspended sentence coupled with probation. The Supreme Court and the Fifth Circuit have both agreed that a suspended sentence is a "term of imprisonment" requiring counsel. See Shelton, 535 U.S. at 659; Perez-Macias, 335 F.3d at 426-27; Scott v. Illinois, 440 U.S. 367, 370-74 (1979) (holding that the right to counsel in misdemeanor cases only applies where the defendant is actually sentenced to imprisonment and not merely where imprisonment is an authorized punishment); Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (holding that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial."). Nevertheless, appellant's application of Shelton is misplaced. In Shelton, the defendant was warned about the dangers of self-representation, but was not offered assistance of counsel at the state's expense. Shelton, 535 U.S. at 658. In the present case, the record shows that appellant was informed of his right to have a lawyer represent him and was advised that if he could not afford a lawyer, one would be appointed. However, appellant chose to waive his right to be represented by counsel. Thus, the issue is whether appellant's wavier of his right to counsel was valid. Accordingly, appellant's first issue is overruled.

II. Waiver

The right to counsel may be waived if such waiver is made voluntarily and with knowledge of the consequences thereof. Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978) (citing Faretta v. California, 422 U.S. 806, 835 (1975)); Garcia v. State, 909 S.W.2d 563, 565 (Tex. App.-Corpus Christi 1995, pet. ref'd). Because the right to counsel is a fundamental right, courts indulge every reasonable presumption against waiver of counsel. Jordan, 571 S.W.2d at 884. The record must clearly show that the accused voluntarily, knowingly, and intelligently waived his right to counsel in order to assert his right to represent himself. Id. In determining whether a valid waiver of counsel has been made, Farretta requires that the defendant (1) make a knowing and intelligent waiver, and (2) be made aware of the dangers and disadvantages of self-representation. Williams v. State, 925 S.W.2d 272, 274 (Tex. App.-Corpus Christi 1996, no pet.) (citing Geeslin v. State, 600 S.W.2d 309, 313 (Tex. Crim. App. 1980)).

In his second and third issues, appellant contends that, although the judgments from his prior convictions recite that he waived his right to counsel, his waiver was invalid because the trial court failed to admonish him about the dangers and disadvantages of self-representation and, in particular, failed to inquire about his age, education, and experience to determine whether there was a voluntary, knowing, and intelligent waiver. At the outset we note that a trial court is not required to admonish a misdemeanor defendant of the dangers and disadvantages of self-representation when he appears without an attorney to plead guilty. Johnson v. State, 614 S.W.2d 116,119-20 (Tex. Crim. App. 1981) (en banc) (op. on reh'g) (holding that if an accused appears in court on a misdemeanor charge without counsel and does not contest his guilt, the trial court is not required to admonish the accused of the dangers and disadvantages of self-representation); Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002); Garcia, 909 S.W.2d at 565. Here, because appellant did not contest his guilt, he pleaded guilty, the trial court was not required to admonish him as to the dangers and disadvantages of self-representation. Nonetheless, we have reviewed the transcript of the proceedings related to the misdemeanor convictions and find that the court did admonish appellant about his rights, including his right to counsel and his right to have counsel appointed if he could not afford one. (4) The record also establishes that appellant was admonished about the dangers and disadvantages of self-representation during the proceeding leading to his convictions for the misdemeanors. Accordingly, appellant's second issue is overruled.

Our focus turns to whether appellant voluntarily, knowingly, and intelligently waived his right to counsel at the proceeding for his two prior misdemeanors. See Johnson, 614 S.W.2d at 119-20; Garcia, 909 S.W.2d at 566. By his third issue, appellant contends that he did not do so. When a defendant collaterally attacks enhancing misdemeanor convictions, as appellant is doing here, the defendant has the burden to prove that, with respect to the enhancing misdemeanor conviction, he did not voluntarily, knowingly, and intelligently waive his right to counsel. See Garcia, 909 S.W.2d at 566 (citing cases). We note that a defendant bears this burden only when collaterally attacking enhancement misdemeanor convictions, whereas, on direct appeal, the State bears the burden of establishing that the record affirmatively shows a valid waiver of counsel. Id.

Appellant argues that the trial court failed to make a proper inquiry into whether he knowingly and voluntarily waived his right to counsel. According to appellant, the trial court had a "solemn duty" to inquire, at a minimum, into his age, education, and experience to determine whether there was a competent and intelligent waiver. See McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir. 1985). Appellant asserts that the trial court's colloquy with him did not satisfy this burden and that the only inquiry made with respect to his understanding of the consequences of his plea was done by the court interpreter. The State asserts that the record shows that appellant made a voluntary, knowing, and intelligent waiver of his right to counsel prior to the two misdemeanor convictions.

The McQueen court interpreted the requirements set forth in Faretta and related cases as requiring courts to consider the defendant's age and education. McQueen, 755 F.2d at 1177. However, we note that the Supreme Court's holding in Faretta does not mandate an inquiry concerning appellant's age, education, or background in every instance where the accused expresses a desire to represent himself because the record may otherwise be sufficient for the court to assess the defendant's knowing exercise of the right to defend himself. (5) See Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982) (en banc) (quoting Faretta, 422 U.S. at 836). While there is no required set of questions to establish a knowing and intelligent waiver, Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984)(en banc), it is sufficient if the record shows that the defendant "knows what he is doing and his choice is made with eyes open." Faretta, 422 U.S. at 835. In the present case, the record reflects that appellant signed two separate documents acknowledging that he had been advised of his right to counsel and that he knowingly and voluntarily waived that right. As evidence in support of his motion to set aside the indictment, appellant presented the transcript of his misdemeanor convictions, both Misdemeanor Pleas of Guilty/Nolo Contendere and the testimony of the court interpreter. However, this evidence demonstrates that he was advised of his rights, that the documents were translated for him, and that he knowingly and voluntarily waived his right to counsel. Moreover, the transcript of the misdemeanor convictions reveals that the trial court admonished appellant as to his right to counsel, his right to have counsel appointed if he could not afford one, the charges brought against him, the range of punishment, and the possibility of deportation. The record shows that the court inquired into whether appellant understood the rights he was waiving, whether he had previously been convicted or arrested, and whether he had been on probation before. The court also solicited information from appellant revealing that he has four children, he works as a carpenter with his father, and he is responsible for paying the rent for his family's home. The record further reflects that the trial court asked appellant whether he was a U.S. citizen, and after appellant answered that he was not, the judge informed appellant that anything that happened at the proceeding could be used against him for deportation purposes. The judge then provided appellant an opportunity to change his plea by asking whether he still wanted to plead guilty. We find that the record contains sufficient facts to support the trial court's conclusion that appellant knowingly and intelligently waived his rights. See Williams, 925 S.W.2d at 274.

Appellant has failed to produce any evidence or testimony showing that his waiver was not voluntary, knowing, or intelligent. See Garcia, 909 S.W.2d at 566; Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985) (en banc) (stating that "appellant's testimony alone fails to meet the burden of showing indigency, lack of counsel and lack of waiver" and imposing on appellant the burden to prove that he was indigent, that he had no counsel, and that his waiver was involuntary). If the defendant in a misdemeanor case where guilt is not contested signs a written waiver of counsel in court and there is no contradicting evidence or any evidence that the defendant was coerced or intimidated, the record is sufficient to show a finding that the defendant's waiver was valid. Hatten v. State, 89 S.W.3d 160, 163 (Tex. App.-Texarkana 2002, no pet.) (op. on remand). Here, there is no evidence in the record to show that appellant did not waive his right to counsel knowingly and voluntarily, nor is there any evidence that appellant was coerced or intimidated in any way into signing the written waivers. See id.; Barras v. State, 902 S.W.2d 178, 181 (Tex. App.-El Paso 1995, pet. ref'd) (holding that if a defendant in a misdemeanor case where guilt is not contested signs a written waiver of counsel in court and there is no contradicting evidence that he was coerced or intimidated, the record is sufficient to support a finding that the defendant's waiver of counsel was valid); Blocker v. State, 889 S.W.2d 506, 509 (Tex. App.-Houston [14th Dist.] 1994, no pet.) (evidence sufficient to support a finding of free, voluntary, intelligent waiver where guilt was not contested and defendant signed waiver statement and no contradictory evidence found in record).

It is clear from the record that this is not appellant's first experience with the justice system and, thus, he is not a stranger to court rules and his related rights. He has been convicted for possession of marihuana, has had arrests for public intoxication, and has been on probation. We also note that the trial court had ample opportunity to observe appellant's demeanor while ascertaining whether appellant voluntarily, knowingly, and intelligently waived counsel. Garcia, 909 S.W.2d at 567. We are not afforded the same opportunity on appellate review. Id. Therefore, we give great deference to the trial court's decision regarding this matter. Id. Accordingly, we overrule appellant's third issue.

III. Guilty Plea

In his fourth and final issue, appellant argues that his guilty plea was not entered voluntarily because (1) he did not speak English, (2) only the interpreter explained the consequences of his plea to him, (3) he sought legal advice from the court for the purpose of determining whether to plead guilty or not, and (4) the court failed to inform him that his guilty plea would lead to his deportation.

In determining the voluntariness of a plea, we consider the totality of the circumstances viewed in light of the entire record. Ybarra v. State, 960 S.W.2d 742, 745 (Tex. App.-Dallas 1997, no pet.). Once a defendant has pled guilty and attested to the voluntariness of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.-Corpus Christi 1994, pet. ref'd). Generally, a guilty plea is considered voluntary if the defendant was made fully aware of the direct consequences. State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex. Crim. App. 1999) (en banc) (citing Brady v. United States, 397 U.S. 742, 755 (1970)). A consequence is defined as direct when it is definite, immediate, and largely automatic. Id. A guilty plea will not be rendered involuntary by lack of knowledge as to some collateral consequence. Id.

Appellant's first sub-issue, that he does not speak English, is without merit because it is clear from the record that the proceeding was conducted through an official court interpreter. See Tex. Code Crim. Proc. Ann. art. 38.30 (Vernon Supp. 2004-05). Moreover, the interpreter testified that she translated the documents containing the waiver of counsel and plea of guilty to appellant and that she made sure he understood the documents before he signed them. We overrule appellant's first sub-issue.

In his second sub-issue, appellant complains that his plea was involuntary because the interpreter, and not the court, explained the law to him. Appellant states that the interpreter did more than interpret by providing Spanish-speaking defendants with legal explanations to legal terminology used in the plea documents. (6) He argues that the "ultimate factor which indicates that appellant had no clue as to the consequences of his guilty plea concerns the legal advice the court interpreter, Julieta, provided to [a]ppellant." (7) While appellant does not expressly reference article 26.13 in his brief, his complaint is essentially that the interpreter and not the trial court admonished him as to the consequences of his guilty plea. The admonishments he complains of are those provided for in article 26.13. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05). Trial courts are not required to provide misdemeanor defendants with article 26.13 admonishments. Johnson, 614 S.W.2d at 120 n.1; Mcguire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981). Article 26.13 requires admonishments only in felony cases. It does not apply to misdemeanor cases. (8) In Johnson, the court wrote: However commendable it may be for a trial judge to admonish one accused of a misdemeanor offense, as he must where a person is charged with a felony, . . . there is no requirement in Texas law for a trial court to admonish an accused person of anything if the offense is classified as a misdemeanor.

 

Johnson, 614 S.W.2d at 120 n.1 (emphasis added).

The trial court was not required to give any article 26.13 admonishments. Nevertheless, the record contains evidence that the trial court verbally admonished appellant as to the charges he was facing, the range of punishment, his right to counsel, and the possibility of deportation. The record also reflects that the interpreter translated the Misdemeanor Plea of Guilty/Nolo Contendere documents to appellant. The documents tracked the language of article 26.13. We therefore overrule appellant's second sub-issue.

Appellant's third sub-issue alleges that when he asked the court for permission to speak during his misdemeanor proceeding, he put the court on notice that he wanted something and the court was under a duty to inquire into the nature of his issue before continuing. Appellant has not provided any authority in support of his argument and therefore there is nothing before us to review. See Tex. R. App. P. 38.1(h).

In his fourth sub-issue, appellant also argues that his guilty plea was not entered voluntarily because the trial court failed to inform him that his guilty plea would lead to his deportation. While the legislature requires that a trial court admonish persons pleading guilty of a felony offense that their plea might result in deportation, it chose not to require such admonishments for persons charged with misdemeanors. Jimenez, 987 S.W.2d at 889. Again, even if article 26.13 applied to misdemeanors, "that a guilty plea may result in deportation is generally a collateral consequence" and "a guilty plea will not be rendered involuntary by lack of knowledge as to some collateral consequence." Id. at 888-89. We overrule appellant's fourth sub-issue.

CONCLUSION

Because the record supports the finding that appellant made a valid waiver of his right to counsel and because the trial court was not required to admonish appellant under 26.13 regarding the consequences of his guilty plea we affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

 

Concurring Memorandum Opinion

by Justice Errlinda Castillo.

 

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 9th day of June, 2005.

1. Tex. Pen. Code Ann. 22.01(a), (b)(2) (Vernon Supp. 2004-05).

2. Appellant was convicted of both prior misdemeanor family violence convictions in the same proceeding on June 30, 2000, and in all three occurrences, the victim was appellant's wife.

3. A prior conviction that is alleged for enhancement may be collaterally attacked if it is void or if it is tainted by a constitutional defect. See Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. [Panel Op.] 1979); Wilson v. State, 44 S.W.3d 602, 606 (Tex. App.-Fort Worth 2001, pet. ref'd).

4. The Misdemeanor Plea of Guilty/Nolo Contendere documents, which were translated for and signed by appellant, explain, in relevant part, the charges being brought, the range of punishment, defendant's right to counsel, defendant's right to have counsel appointed if indigent, the risk of deportation, and the possible use of the case for enhancement purposes. The documents also contain a paragraph asserting that "I have been admonished of the nature of the charges against me, all of my rights and the consequences of entering a plea of guilty or nolo contendere, hereby state in open court and in writing that: I understand the charges against me; I knowingly and voluntarily waive the above mentioned rights; committed the offense alleged in the information and am guilty as charged. I specifically waive my right to be represented by an attorney . . . ."

5. Those cases finding a knowing and intelligent waiver without a specific inquiry into background and experience contained additional facts or evidence that support the conclusion that the trial court found the defendant of sufficient intelligence and acumen. See Burgess v. State, 816 S.W.2d 424, 427 (Tex. Crim. App. 1991) (en banc) (defendant stated that he finished 120 hours of college credit); Williams v. State, 925 S.W.2d 272, 274 (Tex. App.-Corpus Christi 1996, no pet.);; Hobbs v. State, 778 S.W.2d 185, 187 (Tex. App.-Beaumont 1989, no pet.) (psychological evaluation to determine that defendant was competent to stand trial); Fultz v. State, 632 S.W.2d 787, 790 (Tex. App.-Houston [14th Dist.] 1982, pet. ref'd) (some 100 pages of transcript reflecting that the defendant knew what he was doing).

6. Appellant has not raised any specific issues as to the accuracy of the interpreter's translation; instead, appellant seems to take issue with the interpreter's use of sight translation in explaining the meaning of legal terms within the documents. See Montoya v. State, 811 S.W.2d 671, 673 (Tex. App.-Corpus Christi 1991, no pet.) (overruling appellant's request for new translator where he was not getting a "word-by-word" translation and finding that the bailiff was sufficiently competent as a translator to serve appellant's needs during the trial); Frescas v. State, 636 S.W.2d 516, 518 (Tex. App.-El Paso1982, no pet.) (appellant has presented no specific example of misunderstanding). The interpreter did testify that she sometimes "sight translates" documents; however, her testimony related primarily to the procedure in County Court-at-Law Number 2. Appellant was convicted in County Court-at-Law Number 1. Appellant did not present any specific example of sight translation or misunderstanding nor did the interpreter's testimony establish that she sight translated the documents to appellant in this case. When explaining that she sight translates "big words," the interpreter testified that "maybe that was the case in this case. I'm not sure." Even if appellant were attacking accuracy of the interpreter's translation, "[a]ccuracy of the translation of criminal proceedings for non-English speaking defendants is a fact question properly addressed to the trial court and is not reviewable by an appellate court." Kan v. State, 4 S.W.3d 38, 43 (Tex. App.-San Antonio 1999, no pet.).

7. Appellant has presented no specific example of legal advice given to him by the interpreter. The record reflects that the interpreter did no more than translate the information contained in the plea documents. The information in the documents consisted of the admonishments as well as explanations of the consequences of entering a guilty plea. Without specific examples of legal advice given by the interpreter, we cannot conclude that translation of this information amounted to legal advice.

8. Article 27.13 of the Texas Code of Criminal Procedure specifies that when a plea of guilty or nolo contendere is made in a felony case, "the proceedings shall be as provided in article 26.13." Tex. Code Crim. Proc. Ann art. 27.13 (Vernon 1989). But when such a plea is made in a misdemeanor case, the corresponding statute, article 27.14, does not contain or refer to a statute that contains such a right. See Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003) (en banc).