Benizi Anselmo v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00388-CR

No. 10-06-00389-CR

No. 10-06-00390-CR

No. 10-06-00391-CR

No. 10-06-00392-CR

Benizi Anselmo,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court Nos. 05-04153-CRF-272, 05-04618-CRF-272,

05-05174-CRF-272, 05-05175-CRF-272, and 05-05176-CRF-272

MEMORANDUM  Opinion

            Benizi Anselmo pled guilty to five offenses under Texas Health & Safety Code section  481.112(a) and (d), one offense under section 481.112(a) and(b), and one offense under section 481.112(a) and (c).  All offenses related to the possession with the intent to deliver, delivery, or manufacture of a controlled substance, cocaine. Punishment was tried to the court without the benefit of a plea bargain.  The trial court sentenced Anselmo to 45 years in prison in the five first degree felony convictions, 2 years in a state jail facility in the state jail felony conviction, and 20 years in prison in the second degree felony conviction.  Anselmo appealed all his convictions.  Because the 45 year sentences were not excessive, the guilty pleas were not involuntary, and counsel was not ineffective, the trial court’s judgments are affirmed.

Excessive Punishment

            Anselmo contends in his first issue that the sentence of 45 years in each of his cases constitutes cruel and unusual punishment in violation of the United States Constitution and the Texas Constitution. Specifically, Anselmo argues that his punishment is excessive as determined by a proportionality review under the Solem factors.[1]

            Texas courts and the Fifth Circuit Court of Appeals require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the elements of the Solem test. Willis v. State, 192 S.W.3d 585, 596 (Tex. App.—Tyler 2006, pet. ref'd) (citing Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983) (the proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions)).  In determining whether a sentence is grossly disproportionate, we consider not only the present offense but also an accused's criminal history.  Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.); Davis v. State, 119 S.W.3d 359, 363 (Tex. App.—Waco 2003, pet. ref'd). 

            In support of his issue, Anselmo argues that while he had no criminal history and was sentenced to 45 years in each case, his co-defendant, who had a prior DWI, was given shock probation. Granted, Anselmo had no prior convictions; but he was arrested twice while committing seven different transactions of possessing cocaine, totaling 178.827 grams, with the intent to deliver it.  A large amount of money, 70 grams of marijuana, packaging, scales, spoons, and small baggies were found in his apartment.  Further, it is undisputed that the sentences imposed by the trial court are within the range of punishment authorized by the legislature.  The punishment range is 5 to 99 years or life imprisonment.  See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2003); Tex. Penal Code Ann. § 12.32(a) (Vernon 2003). 

            Anselmo has not met the requirement of a threshold determination that the sentences are grossly disproportionate to the crimes.[2]  His first issue is overruled.

Assurances of Counsel

            In his next two issues, Anselmo argues that he received ineffective assistance of counsel because of counsel’s false assurances as to Anselmo’s punishment and that because of the false assurances as to his punishment, Anselmo’s guilty pleas were involuntary.

            When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of such plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.  Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)); Courtney v. State, 39 S.W.3d 732, 736-737 (Tex. App.—Beaumont 2001, no pet.).  The defendant bears the burden of showing trial counsel's performance was deficient and that it is reasonably probable that he would have insisted on a trial if he had been properly advised.  See Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999).

            If counsel conveys erroneous information to a defendant, a plea of guilty based on that misinformation is involuntary.  Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984); McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981); Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, pet ref’d).  But a defendant's claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary.  Fimberg, 922 S.W.2d at 208; Pena v. State, 132 S.W.3d 663, 669 (Tex. App.—Corpus Christi 2004, no pet.). 

            At the hearing on his motion for new trial, Anselmo testified that his attorney explained that he would be sentenced to 6 months in jail and 10 years’ probation (otherwise known as shock probation).  He also said that was why he entered guilty pleas.  Anselmo’s trial counsel, on the other hand, was quite adamant he did not promise Anselmo that he would receive shock probation.  Counsel testified that he told him the best case scenario would be shock probation but he also told Anselmo that he could receive 99 years to life in prison.  At the plea hearing, the trial court admonished Anselmo of the range of punishment for each offense and confirmed that Anselmo understood the charges against him, the punishment range, and his rights.  The court also confirmed that Anselmo was pleading guilty because he was guilty and for no other reason.

            Based on the record we do not find Anselmo’s pleas to be involuntary due to misinformation by his trial counsel. Anselmo’s assertion of misinformation, standing alone, does not establish that his plea was involuntary.  And there is nothing in the record that substantiates his assertion.  Because we do not find his plea to be involuntary due to misinformation by his trial counsel, Anselmo has not sustained his burden to establish even the first prong of his ineffective assistance claim on the same assertion.

            Anselmo’s second and third issues are overruled.

Translation of Plea Hearing

            In his last issue, Anselmo contends his plea was involuntary because there were errors in the translation of the plea paperwork and the courtroom proceedings.  In assessing the voluntariness of a plea, we review the record as a whole and consider the totality of the circumstances.  Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).  An admonishment on punishment is prima facie evidence that a plea was knowing and voluntary.  Martinez, 981 S.W.2d at 197.  The burden then shifts to the defendant to show that the plea was entered without understanding the consequences thereof.  Id.

            The plea proceedings were interpreted for Anselmo through a licensed interpreter.  The trial court admonished Anselmo of the range of punishment for each offense, and Anselmo stated that he understood.  Anselmo, as well as the interpreter, signed the written pleas, waivers, stipulations, and judicial confessions.  But on motion for new trial, Anselmo stated that the plea proceedings were translated very quickly, and he knew enough English to know that the proceedings were not being translated word for word.  He claimed that because the translation was inadequate, he did not understand the proceedings fully.  In response, the State introduced an affidavit from the interpreter who stated “I fully translated everything that was said in court in a true and correct manner.  Moreover, I repeatedly asked Mr. Anselmo, during the hearing, if I was going too fast or if there was something he did not understand.  At no time during the hearing did Mr. Anselmo ever state that he could not understand my translation.”  Further, Anselmo’s trial counsel testified at the hearing on the motion for new trial that he had met with Anselmo and talked with him on the phone without the need for an interpreter because “Benizi speaks very good English.” 

            There is nothing in the record from Anselmo’s guilty pleas to indicate that he did not understand the admonitions or the proceedings.  Based on a review of the record, Anselmo did not meet his burden to show that he did not understand the consequences of his pleas.  His fourth issue is overruled.

Conclusion

            Having overruled each issue, we affirm the judgments of the trial court.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed October 24, 2007

Do not publish

[CRPM]

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[1] Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011, 77 L. Ed. 2d 637 (1983).

[2] See Oliver v. State, No. 10-06-00152-CR, 2007 Tex. App. LEXIS 6495 (Tex. App.—Waco Aug. 15, 2007, no pet. h.) (mem. op.); Nobles v. State, No. 10-06-00153-CR, 2007 Tex. App. LEXIS 6101 (Tex. App.—Waco Aug. 1, 2007, no pet. h.) (mem. op.).