Torres, Francisco Perez v. State ( 2004 )

Affirmed and Memorandum Opinion filed February 12, 2004

Affirmed and Memorandum Opinion filed February 12, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01116-CR

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FRANCISCO PEREZ TORRES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 871,079

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M E M O R A N D U M   O P I N I O N

            Appellant Francisco Perez Torres was convicted of aggravated sexual assault of a child.  In one issue, appellant contends the trial court erred in refusing to allow him to withdraw his nolo contendre plea and in denying his motion for new trial.  We affirm.

I.  Factual Background

            Appellant was indicted for aggravated sexual assault after providing a statement in Spanish in which he admitted to molesting his stepdaughter. Appellant rejected an offer from the State for a twenty-five year sentence, choosing instead to proceed to trial and have the judge sentence him.  The court informed appellant (through his counsel who translated to Spanish)^[1] that if he pleaded guilty or no contest, the State would not make a recommendation for sentencing and the judge would sentence appellant based upon the evidence before him, including a pre-sentence investigation report (“PSI”).  Continuing in Spanish, counsel advised appellant that if the jury found him guilty, the judge would not be permitted to sentence him to probation.  The court then added, and counsel interpreted, that if appellant pleaded guilty or no contest, the judge could assess probation. Appellant stated that he understood, then the following transpired:

COURT: Does that make sense to you?

DEFENDANT: I forget all the questions that are made to me.  I get confused.

COURT: Well, it is your life that’s on the line.  You ought not to forget some things.  If you have a jury trial, you can’t get probation.  If you plead guilty or no contest, you can get probation.  Don’t forget that.

DEFENDANT: But if I say no contest, then I won’t go to trial.

COURT: That’s true.

DEFENDANT: Then I want to go to trial.

The court then excused the potential jury members, waiting outside the court room, for a lunch recess.  Before the panel returned, appellant entered his plea of no contest:

COURT: You realize that you have the right to have a jury trial in this case.  You also have the right to give it up.  Do you want to give it up? 

DEFENDANT: No, sir.

COURT: You want to have a jury trial or not?

DEFENDANT: No.

COURT: You wish to give it up?

DEFENDANT: Yes.

. . . .

COURT: Mr. Torres, to the first degree felony offense of aggravated sexual assault that’s supposed to have occurred in Harris County, Texas, March 1 of . . . ‘96, how do you plead, sir, guilty or not guilty or no contest?

DEFENDANT: No contest.

COURT: Do you understand that even though you entered a plea of no contest, if sufficient evidence is introduced to establish your guilt in this case, the Judge would be warranted in finding you guilty of this offense?

DEFENDANT: Yes, sir.

COURT: Has anybody promised you anything, forced you in any way, or threatened you to make you plead?

DEFENDANT: No, sir.

. . . .

COURT: Now as I understand it, you’re entering your plea of no contest without an agreed recommendation, that you, Mr. Alexander, and the District Attorney’s Office have not been able to agree as to what the punishment should be in your case.  Instead, as I understand it, you’re entering your plea of no contest and requesting that a presentence investigation report be conducted to assist Judge Wilkinson^[[2]] in deciding what the appropriate punishment should be.  Is that your understanding, sir?

DEFENDANT: Yes, sir. 

. . . .

COURT: And you recognize, Mr. Torres, that Judge Wilkinson could sentence you to any term of punishment, from life in the penitentiary down to 5 years deferred adjudication probation.  Do you understand all the range, from the 5 years deferred adjudication probation to life in the penitentiary and everything in between, is a possible punishment in your case?

DEFENDANT: Yes, sir.

Appellant’s trial counsel and a certified interpreter assisted appellant during the plea proceedings.  Appellant’s trial counsel translated the requisite forms—which included a waiver of the right to a trial by jury and statutory admonishments—and fully explained their contents.  To assist in sentencing, the court ordered the preparation of a PSI report.

            The following day, appellant informed counsel that he never intended to give up his right to a jury trial and refused to further cooperate with counsel. Appellant’s counsel thereafter filed a “Motion to Withdraw and Motion for New Trial”^[3] on May 28, 2002.  During the hearings on these motions, appellant testified that he agreed to plead no contest in part because he was confused by the presence of two interpreters who provided him with conflicting information.^[4]  The judge questioned appellant and established that appellant’s counsel had translated the plea papers to him and had admonished him before he signed and swore to the documents.  Appellant also testified that he previously pleaded no contest to an aggravated sexual assault of a child charge in 1991 and received ten years’ probation, which he completed in five.  The court then asked appellant, “So it’s not like you’re a stranger to this proceeding, is it, sir.”  Appellant replied, “yes, it’s true.”  The court denied appellant’s motion for new trial and granted the motion to withdraw.  At the completion of the subsequent sentencing hearing, the judge assessed punishment at 35 years’ confinement and a $10,000 fine.

II.  Discussion

            In one issue, appellant argues the trial court erred in refusing to allow appellant to withdraw his nolo contendre plea and in denying his motion for new trial.  Although the record reflects appellant did not file a motion requesting the withdrawal of his nolo contendre plea in the trial court, in the interest of justice we will consider this claim simultaneously with our analysis pertaining to the denial of appellant’s motion for new trial.  We do so because these motions are intertwined and often considered to be functionally equivalent.^[5]

A.  Standard of Review

            Generally, an accused may withdraw his plea any time before judgment is announced or the case is taken under advisement by the court. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979); Coronado v. State, 25 S.W.3d 806, 809 (Tex. App.—Waco 2000, pet. ref’d).  Once the trial court has admonished the defendant and received the plea and corresponding evidence, the passage of the case for a PSI constitutes taking the case under advisement.  Moreno v. State, 90 S.W.3d 887, 889 (Tex. App.—San Antonio 2002, no pet.)  After this, the decision to permit the withdrawal of the plea rests within the sound discretion of the trial court.  Coronado, 25 S.W.3d at 809.  This court will reverse such a decision only upon a showing that the trial court abused its discretion.  Id.; Moreno, 90 S.W.3d at 889.  The decision to grant or deny a motion for new trial is also reviewed for an abuse of discretion.  Medford v. State, 766 S.W.2d 398, 399 (Tex. App.—Austin 1989, pet. ref’d).  To establish an abuse of discretion, appellant must show that the trial court’s ruling lies outside the “zone of reasonable disagreement.” Moreno, 90 S.W.3d at 889; Watson v. State, 974 S.W.2d 763, 765 (Tex. App.—San Antonio 1998, pet. ref’d) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)). 

            It is well settled that an accused’s plea of guilty or nolo contendre must be made freely and voluntarily.  Tex. Code Crim. Proc. art. 26.13(b); Brady v. United States, 397 U.S. 742, 753, 90 S. Ct. 1463, 1471 (1970); Flowers v. State, 935 S.W.2d 131, 133 (Tex. Crim. App. 1996); Coronado, 25 S.W.3d at 809.  When considering the voluntariness of a plea, we must examine the entire record.  Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam); Coronado, 25 S.W.3d at 809.  Where an accused attests during the initial plea hearing that his plea is voluntary, as is the case here, he bears a heavy burden to prove in a subsequent hearing that he entered the plea involuntarily.  Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); Jones v. State, 855 S.W.2d 82, 84 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). Considering appellant filed his motion for new trial after the case had been taken under advisement, we review the entire record to determine if the trial court abused its discretion in denying appellant’s motion for new trial.

B.  Analysis

            Appellant contends he was confused when he made his plea of nolo contendre, and consequently, the plea was involuntary.  However, the record shows appellant expressly and voluntarily waived his right to a jury trial both through his testimony and his plea papers. Appellant received the statutorily required admonishments^[6] in writing and initialed each one that was applicable to his case.^[7]  These admonishments created a prima facie showing that appellant’s plea was knowing and voluntary and appellant has the burden to prove that he did not understand the consequences of his plea such that he suffered harm.  Martinez, 981 S.W.2d at 197.  After examining the entire record to determine the voluntariness of appellant’s plea, we find appellant has not met his burden. During his conversation with the trial judge prior to his plea of no contest, appellant was aware of the consequences of his plea as evidenced through his statement, “But if I say no contest, then I won’t go to trial.”  Furthermore, while the court admonished appellant during the plea proceedings, appellant never stated that he was confused or did not understand. In fact, appellant stated that he wanted to give up the right to have a jury trial and that he understood the consequence of pleading no contest. 

            Appellant also failed to satisfy his burden during the hearing on his motion for new trial.  At the hearing, appellant testified that he repeatedly told his attorney that he wanted to have a trial, but ultimately he became confused and pleaded no contest. However, the trial court did not find appellant’s protestations of confusion meritorious.^[8]  Appellant testified he had been charged with the same type of offense previously and had waived a jury trial and pleaded no contest.  The presiding judge observed, “He can say he’s confused a number of times throughout this; but the testimony reflects something a little bit differently . . . .”  Furthermore, the interpreter who translated during the trial court’s admonishments stated that appellant understood the options the court had outlined for him, testifying as follows: “[A]fter I explained all three options, I remember him saying, [‘]Well, like, it would be better for me to plead to a P.S.I.[’]”

            Based on the record, the trial court’s denial of the motion for new trial and its determination that appellant’s plea was voluntary were not outside the zone of reasonable disagreement.  The record reflects that during the plea proceedings appellant testified he had neither been promised anything nor forced or threatened in any way to cause him to enter his plea of no contest.  Appellant further asserted that he had never been treated for any mental illness or disease, and his trial counsel testified he believed appellant to be competent to make his plea.  The trial judge determined appellant was mentally competent and ascertained his plea was entered knowingly and voluntarily.  The court’s determination that the plea was voluntary, and its ultimate ruling, were not arbitrary or unreasonable.  See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

            Therefore, we overrule appellant’s sole issue on review.  The judgment of the trial court is affirmed.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed February 12, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

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

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            ^[1]  There is some evidence in the record that appellant can read and understand English. Specifically, his daughter Veronica sent him a two-page letter, which was written predominantly in English.

            ^[2]  Judge Bob Burdette presided over this portion of appellant’s case in Judge J. Michael Wilkinson’s absence.

            ^[3]  The Motion to Withdraw was a request by trial counsel to withdraw as appellant’s attorney.

            ^[4]  Both interpreters testified during the motion for new trial hearing.  The first interpreter testified that he answered appellant’s questions and to the extent there was any confusion, he consulted with appellant’s attorney.  The second interpreter testified that she was called to help because appellant was having trouble understanding what was being said.  She testified that she merely interpreted to appellant word-for-word everything the judge said to him, and that she and the first interpreter never spoke to appellant at the same time.

            ^[5]  See Maldonado v. State, No. 04-98-01064-CR, 1999 WL 623724, at *1 n.1 (Tex. App.—San Antonio Aug. 18, 1999, no pet.) (not designated for publication) (construing a motion for new trial as a motion to withdraw plea in the interests of justice); State v. Nolan, 521 So. 2d 777, 779 (La. Ct. App. 1988) (stating where defendant pleaded guilty, motion for new trial is inappropriate and should be treated as a motion to withdraw guilty plea); see also State v. Evans, 843 S.W.2d 576, 577–78 (Tex. Crim. App. 1992) (stating that, although motion for withdrawal of plea was filed, it was equivalent to and should have been labeled a motion for new trial); Jean v. State, Nos. 14-94-00913–14-CR, 1996 WL 460177, at *2 (Tex. App.—Houston [14th Dist.] Aug. 15, 1996, no pet.) (not designated for publication) (stating motion to withdraw is the functional equivalent of a motion for new trial). 

            ^[6]  See Tex. Code Crim. Proc. art. 26.13(a)(1)–(5).

            ^[7]  These admonishments were written in English, but read to appellant and explained to him in Spanish by his counsel.  Appellant’s counsel further underlined key passages and terms in the admonishments. Counsel specifically highlighted the paragraph containing the following underlined sentences: “Joined by my counsel, I state that I understand the foregoing admonishments and I am aware of the consequences of my plea.  I am mentally competent to stand trial and my plea is freely and voluntarily made. . . . I waive and give up my right to a jury in this case and my right to require the appearance, confrontation and cross examination of the witnesses.”

            ^[8]  As the sole judge of the credibility of appellant’s testimony, the trial court could accept or reject all of the testimony or any part of it.  Coronado, 25 S.W.3d at 810 (citing Flanagan v. State, 675 S.W.2d 734, 746 (Tex. Crim. App. 1984) (op. on reh’g)).