Angela A. Lara v. State ( 2010 )

Opinion issued November 10, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00763-CR

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ANGELA A. LARA, Appellant

V.

The State of Texas, Appellee

On Appeal from 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 48501

MEMORANDUM OPINION

          The State indicted appellant, Angela A. Lara, for capital murder.  See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009).  She pleaded guilty without an agreed recommendation to the lesser-included offense of aggravated robbery.  See Tex. Penal Code Ann. §§ 29.02, 29.03 (Vernon 2003).  After a presentence investigation report and sentencing hearing, the trial court assessed her punishment at 50 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  On appeal, Lara contends that (1) her plea was involuntary because her counsel led her to believe that she would receive no more than 30 years’ confinement; and (2) she received ineffective assistance of counsel when defense counsel called a witness who testified negatively to the defense.  We conclude that Lara has not shown a basis for withdrawal of the plea, nor that her counsel was ineffective.  We therefore affirm. 

Background

Lara and two accomplices, Marwan Saeed and Kevin Cypher, planned and executed a robbery that led to the murder of Martha Fields. Lara convinced a friend to rent a get-away van in which she drove Cypher and Saeed to survey the Fieldses’ home. She again drove them to the house on the day of the robbery and murder.  Once inside the home, Cypher tied Fields to her refrigerator and Saeed stabbed her. 

          The State offered Lara and Cypher a plea bargain: 30 years’ confinement in exchange for pleading guilty to the lesser-included offense of aggravated robbery.  Lara rejected the State’s offer.  Cypher accepted it.  The State rejected Lara’s counter-offer for 25 years in exchange for a guilty plea. 

A week later, Lara pleaded guilty to aggravated robbery without any agreed recommendation. At the plea hearing, the trial court admonished Lara orally as well as in writing about the consequence of her guilty plea, and that it could consider the full range of punishment.  The trial court ordered a presentence investigation (PSI) report and conducted a hearing before assessing punishment.  The State admitted the offense report and called witnesses who testified as to victim impact and Lara’s disciplinary violations in prison for possession of medications, razor blades, and a watch.  Lara called family members and co-workers to testify to her good character.  Lara also called Texas Ranger David Maxwell to testify to her minimal involvement in the crime, in that she never entered the Fieldses’ home.  Trooper Maxwell also testified as follows:

The crime was actually put together by Marwan Saeed and Angela Lara . . . Angela was involved in the renting of the van that they used to commit the crime.  She was present during conversations about what they actually were going to do.  She was present during the entire planning and execution of the offence.

Trooper Maxwell further testified that Lara drove her accomplices to the Fieldses’ home on two separate occasions and helped them get past security in the gated community.  After considering the PSI evidence, the trial court assessed punishment at 50 years’ confinement.

Lara filed a motion for new trial, challenging the voluntariness of her plea under Rules 21.3(b) and (h) of the Texas Rule of Appellate Procedure.  See Tex. R. App. P. 21.3(b), (h).   Defense counsel testified to Lara’s surprise over the 50 year sentence and counsel’s strategy for calling Trooper Maxwell to testify.  Counsel testified that she fully reviewed the written admonishments with Lara and “grilled” her to ensure she understood the consequences of her plea. Counsel explained to Lara that the full range of punishment was available to the trial court.  Counsel did not promise Lara any cap on punishment. Counsel testified that one of the State’s attorneys told her he would only ask for 30 years’ confinement as the plea papers were being prepared.  The trial court denied Lara’s motion for new trial, expressly finding Lara’s plea to be given freely, intelligently, and voluntarily.

Involuntary Plea

Lara contends that her plea was involuntary because both her trial counsel and the State led her to believe her punishment would be capped at 30 years’ confinement. 

A.      Standard of Review

In assessing the voluntariness of a plea, we review the record as a whole and consider the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Lee v. State, 39 S.W.3d 373, 375 (Tex. App.—Houston [1st Dist.] 2001, no pet.);   Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.).  A trial court may accept a guilty plea only if the defendant enters it freely and voluntarily. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2010).

A record indicating that the trial court properly admonished the defendant presents a prima facie showing that the guilty plea was made voluntarily and knowingly. Starz v. State, 309 S.W.3d 110, 117 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)).  If the record presents such a showing, then the burden shifts to the defendant to show that he entered the plea without understanding the consequences.  Id.  An accused who attests that he understands the nature of his guilty plea and that it is voluntary has a heavy burden on appeal to show that his plea was involuntary. Id.; Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).  A guilty plea based on erroneous information conveyed by trial counsel to the defendant is involuntary.  Labib v. State, 239 S.W.3d 322, 333 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).  However, a trial court may reject the defendant’s uncorroborated testimony that he was misinformed by counsel.  Starz, 309 S.W.3d at 118; Fimberg, 922 S.W.2d at 208.         

          B.      Analysis

          Lara contends that she believed there was a 30 year cap on her punishment, though no formal agreement was in place, because defense counsel advised her that it was unlikely that she would receive more than 30 years in prison.  Counsel based her advice on Lara’s minimal involvement in the crime and the 30 year plea bargain offered to her co-defendant. Neither she nor her counsel believed she deserved more than 30 years. 

But Lara’s counsel and the trial court warned her of the consequences of her plea.  Counsel testified Lara understood there was no cap on punishment, but believed she deserved less than 30 years.  Counsel characterized the decision to plead without any recommendation as a calculated risk.  Lara fails to point to any erroneous information counsel provided that affected her decision to plead guilty without an agreed recommendation.  As the trial court stated at the motion for new trial, “I think the best summation was that she was shocked at the sentence she received, but that doesn’t mean that there was a representation or misunderstanding that the full range of punishment was available to the Court.”  We hold that the record supports the trial court’s determination that Lara understood the consequences of her plea. 

Ineffective Assistance of Counsel

Lara further contends she received ineffective assistance of counsel because her attorney called a witness at the punishment hearing who could only testify negatively to her defense. 

A.      Standard of Review

To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).  A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness claim.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101.  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

B.      Analysis

          At the punishment hearing, Trooper Maxwell testified that Lara actively participated in planning the robbery and was responsible for procuring the van, driving her accomplices to the Fieldses’ home for surveillance and the robbery, and hiding them from security in the gated community during the robbery.  Lara asserts that, besides Trooper Maxwell’s testimony, no other evidence showed Lara was involved in planning the crime or getting past security.  The State argues the offense report admitted into evidence similarly demonstrates Lara’s involvement.

We agree Trooper Maxwell’s testimony was not the only evidence of Lara’s involvement.  The offense report demonstrated Lara was chiefly responsible for renting the van, drove the get-away car, and took her accomplices to the Fieldses’ home twice.  Thus, Trooper Maxwell’s negative testimony was cumulative of other evidence introduced at the sentencing hearing. 

Even if counsel’s performance fell below an objective standard of reasonableness, Lara fails to show that the result of the sentencing hearing would have been different.  The State presented evidence of the particular violence of the crime, Lara’s lack of cooperation with law enforcement, and Lara’s disciplinary violations while in prison.  The State adduced other evidence of
Lara’s involvement.  The trial court assessed punishment well within the statutory range.  Lara fails to show that the trial court would have assessed a lighter sentence without Trooper Maxwell’s testimony.  We hold that the State presented sufficient additional evidence beyond Trooper Maxwell’s testimony to justify the punishment assessed, and thus Lara cannot satisfy the second prong of Strickland.  See Andrews, 159 S.W.3d at 101. 

Conclusion

          We conclude that Lara failed to show that her plea was involuntary or that counsel’s performance caused the trial court to impose an overly harsh sentence. We therefore affirm the judgment of the trial court. 

                                                          Jane Bland                                                                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b).