Edgardo Santibanez Sanchez v. The State of Texas--Appeal from 7th District Court of Smith County

MARY'S OPINION HEADING

NO. 12-06-00071-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EDGARDO SANTIBANEZ SANCHEZ, APPEAL FROM THE SEVENTH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Edgardo Santibanez Sanchez was charged by indictment with capital murder. Appellant pleaded guilty to the lesser offense of murder, and the trial court assessed Appellant s punishment at imprisonment for life. In two issues, Appellant contends that his plea of guilty was not made knowingly and voluntarily, and that he did not receive effective assistance of counsel. We affirm.

Background

 

The victim, Alberto Flores, was shot five times, causing his death. The evidence indicated that the killer had first shot the victim once in the leg with a .380 Super Colt semi-automatic pistol. When the pistol jammed, the assailant shot the victim five more times with an SKS semi-automatic assault rifle. A witness saw Appellant s car leave the scene of the crime immediately after the shooting. The .380 Super Colt pistol used in the murder was found a few feet from the victim s body. The pistol was inscribed with Appellant s first and last names and bore the additional inscription El Bastardo. A police search of Appellant s residence discovered the SKS assault rifle used in the shooting, a Sten machine gun and silencer, $32,000 in small bills, and $6,000 in counterfeit currency. Appellant was arrested for capital murder December 7, 2004, and the trial court appointed counsel to represent him on the same date.

During the time Appellant remained confined awaiting trial, he was examined for competency, the trial court held ten hearings on various pretrial matters, and the State gave formal notice of its intent not to seek the death penalty. On October 20, 2005, Appellant pleaded guilty to the lesser included offense of murder. Before sentencing, Appellant sent the trial court a letter maintaining he had not killed Flores and complaining that his attorneys had forced him to plead guilty. The letter provoked a hearing on January 10, 2006, during which Appellant withdrew the allegations made in his letter, and, after further admonishment, reiterated his guilty plea. On February 16, 2006, the trial court sentenced Appellant to imprisonment for life.

Involuntary Plea

In his first issue, Appellant contends that he is entitled to a new trial because his plea of guilty was not made knowingly, intelligently, and voluntarily. Appellant maintains that because of his mental and physical disabilities and his inability to effectively communicate with his lawyers, he did not understand the offense to which he pleaded guilty, the elements of the offense, or the consequences of his plea.

Applicable Law

To be constitutionally valid, a guilty plea must be knowing and voluntary. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970); Stephens v. State, 15 S.W.3d 278, 279 (Tex. App. Houston [14th Dist.] 2000, pet ref d), cert. denied, 531 U.S. 1169, 121 S. Ct. 1134, 148 L. Ed. 2d 999 (2001). Before accepting a plea of guilty or nolo contendere, the court must admonish a defendant of the range of punishment for the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2006). A showing of substantial compliance with Article 26.13 establishes that a defendant s plea was prima facie knowing and voluntary. Eatmon v. State, 768 S.W.2d 310, 312 (Tex. Crim. App. 1989). The burden then shifts to the defendant to show both that he was unaware of the consequences of the plea, and was misled or harmed by the trial court s admonishment. Tex. Code Crim. Proc. Ann. art 26.13(c) (Vernon Supp. 2006); Robinson v. State, 739 S.W.2d 795, 801 (Tex. Crim. App. 1987). A trial court is considered to have substantially complied with Article 26.13 when it admonishes the defendant of the appropriate range of punishment, the sentence given is within the range prescribed by law, and the defendant fails to affirmatively show harm. Hughes v. State, 833 S.W.2d 137, 139-40 (Tex. Crim. App. 1992). The question of whether the defendant s plea was voluntary is determined by the totality of the circumstances. Finberg v. State, 922 S.W.2d 205, 207 (Tex. App. Houston [1st Dist.] 1996, pet. ref d). A plea of guilty is not rendered involuntary merely because the defendant received a greater punishment than anticipated or because he did not assess every relevant factor when making his decision to plead guilty. Lemmons v. State, 133 S.W.3d 751, 757 (Tex. App. Fort Worth 2004, pet. ref d).

Analysis

At the October 20 hearing, the trial court properly admonished Appellant of the range of punishment for the offense as required by Article 26.13. The trial court thoroughly explained Appellant s constitutional rights. Appellant repeatedly testified that he understood those rights, but wanted to waive them and plead guilty. Appellant further testified that he was satisfied with the representation afforded him by his two court appointed attorneys. The record also contains Appellant s written acknowledgment that he understood the range of punishment for this offense, as well as his agreement to stipulate the evidence against him and waive jury trial.

On December 26, 2005, Appellant sent the trial court a letter in Spanish denying that he had killed Flores but expressing regret that he had gone that morning to where Flores was killed. He also intimated that he had felt forced to plead guilty, and that his attorneys would not come to see him. The letter also maintained that this was the first time he had been involved in a criminal matter. He expressed remorse, and asked for a light sentence.

The trial court conducted a hearing in specific response to Appellant s letter. At that hearing, Appellant testified, as follows:

Q. Edgardo - - Mr. Sanchez, let me ask you this: In the letter, you re stating that you re innocent of murder. What do you mean by that?

A. I just wanted to see - - I wanted to - - I plead guilty.

Q. But you understand that you pled guilty to murder, but you have to be guilty of it.

A. Yes, accomplice.

Q. You understand that?

A. Yes.

Q. That s why you pled guilty, because you re guilty as an accomplice; is that correct?

A. Yes. I had the gun. I think so, because I had the gun. I was an accomplice.

. . . .

Q. Now, also in the letter, you told the Judge that-- words to the effect that you weren t - - that the lawyers forced you to plead guilty?

A. No. No. I don t know how to express myself. That s it. I was just asking for forgiveness so I could get less time. From my heart, I was saying these things.

Q. Well, in the letter, it does say that the lawyers, in some manner, forced you to plead guilty. Is that true or false?

A. What do you mean?

Q. You weren t forced to plead guilty, were you?

A. Oh, no, no.

Appellant pleaded guilty to the offense only after full and extensive admonishments by the trial court. After the trial court s substantial compliance with Article 26.13(a)(1), Appellant was required to affirmatively show that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Tex. Code Crim. Proc. Ann. art. 26.13(c). Appellant has offered only unsupported subjective assertions that he did not know the nature of the offense to which he pleaded guilty, the elements of the offense, or the consequences of his plea. An affirmative showing requires more. See Lemmon, 133 S.W.3d at 759. In his testimony during the hearing regarding the letter, Appellant offered no evidence affirmatively showing that he did not understand the court s admonishments or the advice of his attorneys regarding the nature and consequences of his plea. Nor has he demonstrated that he was harmed or misled by the court s admonishment or the advice of his counsel. A presumption of regularity attaches to the proceeding and the resulting judgment, and the burden is on Appellant to overcome this presumption. Cochrane v. State, 66 S.W.3d 415, 417 (Tex. App. Tyler 2001, no pet.). Appellant s first issue is without merit and is overruled.

 

Ineffective Assistance of Counsel

In his second issue, Appellant complains that his trial attorneys were ineffective.

Standard of Review

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). To prevail on his claim of ineffective assistance, an appellant must show that his attorney s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for the attorney s deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).

Analysis

Our review of counsel s representation is highly deferential; we indulge a strong presumption that counsel s conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. This court will not second guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

First, Appellant contends that his trial counsel were ineffective in failing to secure an independent mental evaluation of his sanity and fitness to stand trial. Trial counsel initially requested a competency examination of Appellant, which the trial court granted. Appellant s counsel explained that the motion for an examination was based upon Appellant s diabetes and the presence of parasites in his brain. Appellant s attorneys withdrew their request for a competency evaluation after receiving a copy of the report of Dr. Tynus McNeel, the mental health expert appointed by the court to examine Appellant. Counsel also withdrew notice of intent to raise an insanity defense. Dr. McNeel s report is not part of the record on appeal, but it is safe to assume that Dr. McNeel found Appellant competent to stand trial and not insane at the time of the offense.

The record does show that Appellant had never been confined in a mental institution and had never been under the care of a psychiatrist or under long term psychiatric care. Appellant had been treated for the brain parasites, and he was taking seizure medication at the time of his trial, but for a medical condition. His counsel testified that they were able to communicate very effectively with him and no longer questioned his competency.

Trial counsel is not obligated to present frivolous motions or objections. Wood v. State, 4 S.W.3d 85, 91 (Tex. App. Fort Worth 1999, pet. ref d). Appellant has failed to show that a question existed about Appellant s sanity at the time of the offense or his competency to stand trial. Under these circumstances, trial counsel s decision to withdraw his request for another psychiatric examination was not ineffective representation.

Appellant next maintains that his trial attorneys were ineffective in failing to meet with him during the eight months he was in jail awaiting trial, a complaint made in Appellant s plaintive letter to the trial judge, but belied by the record. Before Appellant pleaded guilty, the trial court held ten pretrial hearings during which Appellant s attorneys demonstrated they were well prepared. Appellant repeatedly expressed his satisfaction with his attorneys, the last time in the hearing provoked by his letter to the trial court.

Appellant presents nothing more than an allegation contradicted by the record that his attorneys failed to meet with him. Moreover, he has failed to allege or show what would have been accomplished in other meetings or what effect they would have had on the outcome of his case.

Finally, Appellant contends his trial counsel were ineffective because they did not withdraw his guilty plea or advise Appellant that he could withdraw his guilty plea. The record does not directly reflect what tactical considerations prompted Appellant s plea of guilty in the first instance. But the record does show that the State possessed ample evidence to prove capital murder as charged in the indictment. Given the facts of the case, acquittal was, at best, a remote possibility. If convicted, Appellant faced a mandatory sentence of life imprisonment. Pleading to the lesser offense of murder made the entire first degree felony range of punishment available as a sentencing option. Although the trial court imposed the maximum sentence available, Appellant still has the possibility of parole. The decision to persist in his plea of guilty appears to have been based upon a reasonable trial strategy. Nothing in the record indicates otherwise. Counsel were not ineffective for failing to withdraw Appellant s plea of guilty.

Appellant s claims that his attorneys performance was ineffective in the three instances alleged are without merit. Appellant s second issue is overruled.

Disposition

The judgment of the trial court is affirmed.

BILL BASS

Justice

Opinion delivered June 29, 2007.

Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)