Fernando Ortiz-Juarez v. State ( 2011 )

Affirmed and Memorandum Opinion filed May 12, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00184-CR

Fernando Ortiz-Juarez, Appellant

v.

The State of Texas, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1205633

MEMORANDUM OPINION

Appellant Fernando Ortiz-Juarez challenges his conviction for burglary of a habitation, raising three issues pertaining to his “guilty” plea that he claimed to have retracted at a later point in the proceedings.  Appellant asserts the trial court erred in accepting his initial “guilty” plea and in finding him guilty as charged even after he asserted that he did not commit the charged offense.  Appellant also claims the trial court should have sua sponte ordered appellant’s “guilty” plea withdrawn and that the trial court’s failure to do so resulted in denial of equal protection and violation of his due-process rights.  In a fourth issue, appellant claims he was denied effective assistance of counsel.  We affirm.

Factual and Procedural Background

Appellant was charged by indictment with the felony offense of burglary of a habitation.  Appellant waived his right to a jury trial and, without an agreed recommendation, judicially confessed to committing the charged offense.  The trial court withheld finding appellant guilty of the offense and ordered a presentence investigation.

The complainant testified at the sentencing hearing that she entered her apartment one night and heard an odd noise.  The complainant believed an unknown person was inside, so the complainant fled the apartment and notified authorities.  Responding officers found appellant, who is the complainant’s neighbor, underneath the complainant’s bed.  Officers recovered a cell phone charger and some compact disks belonging to the complainant in appellant’s possession.  Officers also recovered a knife in appellant’s pocket.  According to the complainant, after officers removed appellant from her apartment, she realized that some photographs, which were normally kept in a drawer, had been moved and that someone had used her computer in her absence.

At the hearing, appellant testified that as he returned home from a party, he observed the door to the complainant’s apartment ajar.  He said he heard a scream from inside the complainant’s apartment and entered the complainant’s apartment ten minutes later to investigate the sound. Appellant testified that when he later saw the complainant approaching her apartment, he became scared and hid under the complainant’s bed, where responding officers later located him.  As for the items found in his possession, appellant first could not recall possessing anything that belonged to the complainant, stating that the items could have belonged to him, and then later stated that he did not know whether the items belonged to the complainant.

The trial court found appellant guilty of the charged offense and sentenced appellant to five years’ confinement.

Issues and Analysis

Did the trial court err in failing to order appellant’s “guilty” plea withdrawn?

Appellant’s first three issues pertain to the trial court’s alleged error surrounding appellant’s “guilty” plea.  In his first issue, appellant asserts that the trial court erred in accepting appellant’s “guilty” plea and in finding appellant guilty as charged even after appellant claimed that he did not commit the charged offense and without questioning appellant further.  For support, appellant points to his testimony at the hearing as indicative that he “implicitly, if not expressly” withdrew his “guilty” plea. In his second issue, appellant claims that trial court should have “sua sponte withdrawn appellant’s plea.”  Appellant claims, in a third issue, that the trial court’s alleged failure to sua sponte withdraw the plea resulted in the denial of his rights to equal protection and due process of law.

Appellant claims that before the trial court found him guilty, he testified that he did not commit the charged offense and effectively withdrew his plea of “guilty.”  Contrary to appellant’s assertions, the record does not reflect that appellant expressly withdrew his plea.  Moreover, although appellant claims he repeatedly withdrew his plea through his testimony, appellant has not cited any legal authority in support of a determination that the testimony was an “implicit withdrawal” or that the trial court was duty-bound to order the plea withdrawn when appellant did not timely raise any formal request to withdraw.  See Tex. R. App. P. 33.1(a); see also Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004) (placing on an accused the requirement of timely seeking to withdraw a plea of “guilty”).

A trial court has no duty to withdraw a defendant’s “guilty” plea sua sponte after the defendant has waived a jury trial, even if the evidence fairly raises an issue as to the innocence of the defendant.  See Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980); Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978) (op. on reh’g).  As a trier of fact, the trial court, without withdrawing the “guilty” plea, may decide the issue, either finding the defendant not guilty or guilty as it believes the facts require.  Thomas, 599 S.W.3d at 824.  Thus, no valid purpose would be served by requiring a trial court to order a “guilty” plea withdrawn.  See Moon, 572 S.W.2d at 682.  Under the facts and circumstances of this case, the trial court’s failure to order the plea withdrawn was not an abuse of discretion.  Because there is no merit to appellant’s arguments, we overrule appellant’s first three issues.

Did appellant receive ineffective assistance of counsel?

In his fourth issue, appellant claims to have received ineffective assistance of counsel by his trial counsel’s failure to move to withdraw appellant’s “guilty” plea.  Appellant claims his plea was involuntary as a result of his trial counsel’s alleged deficient representation.[1] Appellant also claims his counsel was deficient for failing to object to some evidence that appellant characterizes as extraneous evidence.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 1.051 (West 2010).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel’s deficient performance.  Strickland, 466 U.S. at 688–92.  Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). 

In assessing appellant’s claims, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel’s performance was deficient.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel’s trial strategy.  See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was “‘so outrageous that no competent attorney would have engaged in it.’”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

Appellant claims that he was denied effective assistance because his trial counsel did not seek to allow appellant to withdraw his plea of “guilty.”  Appellant did not file a motion for new trial, and nothing in the record reflects why appellant’s counsel did not move to withdraw the “guilty” plea.  See Mallet v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). Appellant asserts that no plausible trial strategy would support his trial counsel’s conduct; but appellant’s trial counsel reasonably could have determined that he could not rebut the recitations in the record that appellant’s plea was freely and voluntarily entered.  See id.  To find trial counsel ineffective would call for this court to speculate, which we will not do.  See id. at 64–65.  When, as in this case, the record is silent as to why counsel did not request that appellant’s “guilty” plea be withdrawn, appellant has failed to satisfy the first prong of Strickland.  See id.

            Appellant also claims that his trial counsel should have objected to testimony that appellant characterizes as inadmissible extraneous evidence.  According to appellant, the testimony from the complainant suggests that appellant had entered the complainant’s apartment on other prior occasions.  Even presuming that this evidence was inadmissible and that appellant could demonstrate that his counsel’s conduct was deficient under the first prong of Strickland, appellant could not prevail because he has failed to satisfy the second prong in demonstrating the result of the proceeding would have been different—especially in light of appellant’s testimony.  See Cotton v. State, 893 S.W.2d 200, 203 (Tex. App.—Fort Worth 1995, no pet.) (rejecting argument that an accused’s trial counsel provided ineffective assistance by failing to file motion in limine instructing complainant not to testify as to extraneous acts committed by accused).  We overrule appellant’s fourth issue.

            The judgment of the trial court is affirmed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] To the extent appellant claims his plea was involuntary, appellant did not complain to the trial court about the voluntariness of his “guilty” plea either before or after his sentencing, including in any motion for new trial; therefore, he has waived the issue for review.  See Tex. R. App. P. 33.1(a).