Daniel Salazar v. State ( 2000 )

00-00272 Salazar v State of Texas.wpd No. 04-00-00272-CR Daniel SALAZAR, Appellant v. STATE of Texas, Appellee From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 1999-CR-5176 Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 8, 2000

AFFIRMED

Daniel Salazar ("Salazar") pled nolo contendere to the charges of Aggravated Sexual Assault of a Child and Burglary of a Habitation. He claims that his plea was not made voluntarily, due in part to ineffective assistance of counsel. Salazar maintains that because of his attorney's ineffective assistance, and Salazar's subsequent plea agreement, Salazar was unduly prejudiced during the sentencing phase. We hold Salazar's plea was entered voluntarily and find no ineffective assistance of counsel.

We affirm the judgment of the trial court.

Background

Salazar was indicted for aggravated sexual assault of a child and burglary of a habitation.

He pled nolo contendere before the trial court, executing a sworn statement that he had received written admonishments concerning the range of punishment. Salazar testified under oath that he understood the range of punishment was from 5 to 99 years or life in prison. The trial court gave both written and oral admonishments regarding Salazar's rights under the State and Federal constitutions. These included his right to a jury trial, right to confront witnesses, and his right to remain silent. Salazar was questioned by the trial court regarding the specific terms of the plea agreement. Salazar testified that he was freely waiving these rights in order to obtain the benefits of a plea bargain, by which the trial court could sentence him to up to15 years confinement without probation and a fine of up to $1,000 dollars. Salazar confirmed that his plea was freely and voluntarily given, and after examining all of the evidence against him, felt that it was in his best interest to enter a plea of nolo contendere. After an investigation into the voluntariness of Salazar's plea, the trial court accepted the plea, and found the evidence sufficient to prove Salazar's guilt.

During the sentencing hearing, Salazar called two witnesses and testified on his own behalf. The trial court denied his application for probation, sentencing Salazar to 13 years in prison and a $1,000 fine. This sentence was within the terms of the plea agreement.

Discussion

A. Voluntariness of the Plea

In his first point of error, Salazar claims that his plea was involuntarily made. Specifically, Salazar maintains that he entered the plea without the benefit of a detailed explanation of the elements of the charges against him. Salazar argues that without such information, he could not have entered his plea intelligently. Underlying Salazar's entire appeal is his general dissatisfaction with the trial court's sentence.

A plea of nolo contendere shall not be accepted unless the trial court determines that the defendant appears mentally competent and the plea is made voluntarily, intelligently, and knowingly. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). The trial court must examine the totality of the circumstances surrounding the entry of the plea when determining whether it was made voluntarily and knowingly. Cantu v. State, 993 S.W.2d 712, 716 (Tex. App.-San Antonio 1999, pet. refused); Gonzalez v. State, 963 S.W.2d 844, 846 (Tex. App.-San Antonio 1998, no pet.). Where the defendant and trial counsel have signed written admonishments, and the trial court has established that the defendant has read and understood the admonishments, the trial judge is not obligated to orally inquire about the plea's voluntariness. Cantu, 993 S.W.2d at 716-17. Written admonitions signed by the defendant and the defendant's oral representations to the court as to the record of his understanding of the admonitions constitute a prima facie showing that the defendant's plea was voluntary and knowingly made. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985); Cantu, 993 S.W.2d at 717. Once such a prima facie showing is made, the burden then shifts to the defendant to demonstrate that the plea was entered without knowledge of its consequences. Cantu v. State, 993 S.W.2d 712, 717 (Tex. App.-San Antonio 1999, pet. refused); Gonzales, 963 S.W.2d at 846.

Although Salazar contends that he entered his plea without the benefit of a detailed explanation of the charges against him, the record reflects Salazar received a detailed explanation of the offenses to which he pled. Salazar swore under oath that he read and signed these same explanatory descriptions. The record also shows that Salazar did not have a plea agreement for deferred adjudication, and Salazar testified that he had reviewed his plea papers with his attorney and understood them. The record contains admonishments that substantially comply with article 26.13 of the code of criminal procedure, creating a prima facie showing of voluntariness. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). Despite the fact that the trial court is not obligated to inquire orally into the voluntariness of a defendant's plea, the trial court did so in this case. Cantu, 993 S.W.2d at 716-17. Salazar testified that he understood the applicable punishment range and that no one was promising him anything in exchange for his plea of nolo contendere. Salazar testified that he was only requesting, or rather hoping, that the trial court grant him probation. The fact that Salazar received a higher punishment than he anticipated does not render his plea involuntary. Thomas v. State, 2 S.W.3d 640,642 (Tex. App.-Dallas 1999, no pet.); Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). Salazar has not rebutted the prima facie showing of voluntariness established by the record. Appellant's first point of error is overruled.

B. Ineffective Assistance of Counsel

Closely related to Salazar's first point of error regarding the involuntariness of his plea is his second claim of ineffective assistance of counsel. The criminally accused are afforded the right to assistance of counsel under both the United States and Texas constitutions. U.S. Const. amend. VI; Tex. Const. art I. § 10. The criminal defendant is entitled to not only the assistance of counsel, but to the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App 1997). This standard applies to challenges made under both the United States and Texas constitutions. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

The Strickland effectiveness of counsel standard is applied in claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). A defendant who enters a plea and later raises a claim of ineffective assistance of counsel must establish by preponderance of the evidence that: (1) counsel's performance and advice was below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Strickland, 466 U.S. at 687; Tollett, 411 U.S. at 266; see Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim App. 1986); Thomas v. State, 2 S.W.3d 640, 641 (Tex. App.-Dallas 1999, no pet); Cantu, 993 S.W.2d at 717.

"[W]e indulge [in] a strong presumption that counsel's conduct falls within a wide range of reasonable representation." Strickland, 466 U.S. at 689. 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, 812; Mc Farland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Ex parte Cruz, 739 S.W.2d 53, 59 (Tex. Crim. App. 1987).

The Texas Court of Criminal Appeals has cautioned that an appellate court should be especially hesitant to find ineffective assistance of counsel based upon a single alleged miscalculation during an otherwise competent and satisfactory representation. Thompson, 9 S.W.3d at 814. This is especially true when the record provides no discernable explanation of the motivation behind counsel's actions. Id.

Salazar complains that the trial counsel did not object to the evidence that Salazar claimed was untrue. Salazar further complains that trial counsel failed to object when the trial court incorrectly referenced the age of the victim as twelve rather than thirteen. The record is silent as to why trial counsel chose not to object. In reviewing the totality of the representation, the record reveals that trial counsel made objections when he deemed them appropriate. Salazar has failed to rebut the presumption that trial counsel's decision not to object was reasonable. Thompson, 9 S.W.3d at 814. Similarly, the record is silent with respect to the reason trial counsel decided not to have Salazar tested for the venereal disease he purportedly transmitted to the victim. As a result, we presume trial counsel's decision was a reasoned trial strategy. See id.

Salazar further contends that trial counsel failed to investigate and acquaint himself with the facts of the case. The record does not support this contention. Trial counsel had a firm grasp of the facts and events surrounding Salazar's charges, and he pursued a reasonable trial strategy based on the evidence against Salazar.

Salazar also asserts that trial counsel was ineffective because he failed to call witnesses to rebut the trial court's impression that Salazar was a member of a gang. The record does not support this assertion. Salazar was questioned by trial counsel regarding the allegations of gang involvement, and trial counsel elicited satisfactory answers from Salazar in an effort to rebut the gang allegations.

Salazar finally complains that trial counsel failed to withdraw Salazar's plea after Salazar testified that he did not actually commit the burglary of which he was charged, but rather was only present with the real participants. Salazar's testimony is not grounds for withdrawing his plea, but rather is an attack on the sufficiency of the evidence to support the plea. We do not have jurisdiction to consider this complaint. Tex. R. App. P. 25.2.(b)(3); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994). Salazar's second point of error is overruled.

Conclusion

The trial court's judgment is affirmed.

Phil Hardberger, Chief Justice

DO NOT PUBLISH