Justin Cotton v. State ( 2014 )

NUMBER 13-13-00012-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUSTIN COTTON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Benavides
On January 3, 2010, appellant, Justin Cotton, pleaded guilty to burglary of a
habitation pursuant to a plea agreement in which the State recommended an eight-year
prison sentence to run concurrently with sentences imposed in other pending cases.
See TEX. PENAL CODE ANN. § 30.02(a) (West, Westlaw through 2013 3d C.S.). Cotton
raises three issues on appeal: (1) the trial court abused its discretion by setting
punishment at twelve years’ confinement instead of the eight-year sentence offered by
the State; (2) the trial court erred by not giving the District Attorney the opportunity to
withdraw the original plea offer when the trial court placed Cotton on deferred
adjudication; and (3) Cotton’s counsel was ineffective at the initial hearing and at the
motion to revoke community supervision hearing. We affirm.
I. BACKGROUND
On September 30, 2010, Cotton was charged with three different crimes:
burglary of a habitation, id. § 30.02(a), which carried a sentence of two to ten years;
possession of cocaine, see TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw
through 2013 3d C.S.), which carried a sentence of two to ten years; and burglary of a
building, which carried a sentence of six months to two years in jail. See TEX. PENAL
CODE ANN. § 30.02(a) (West, Westlaw through 2013 3d C.S.). The State recommended
an eight-year prison sentence to be served in the Institutional Division of the Texas
Department of Criminal Justice for burglary of a habitation and a twelve-month
confinement for burglary of a building. Cotton pleaded guilty in accordance with the
agreement. However, before the trial court accepted his plea, Cotton asked to address
the Court and requested a drug treatment program instead of prison for the possession
of cocaine charge:
[Court]: You understand that if I send you to drug
treatment, you’re probably going to be
incarcerated longer than if I just follow the
State’s recommendation in this case?
[Cotton]: If I need help . . . You know, I want to get some
help. You know, I wanted to go open plea and
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try to get drug treatment, but they told me that it
wasn’t going to be a good idea. They said
instead I would probably get max [twenty] years.
....
[State]: No. That’s not what was discussed with Mr.
Cotton. He had a choice to do an open plea or
a plea bargain.
[Defense]: He was told he was facing [twenty] and he could
get it if he went open to the Court. That’s what
he was told.
The trial court then deferred a finding of guilt and placed Cotton on deferred adjudication
community supervision for a five-year term, explaining to him:
[Court]: [Y]ou understand that if you violate the terms and
conditions of probation the Court can revoke your
community supervision and find you guilty of the
offense of burglary of a habitation, and sentence you
up to [twenty] years in prison[?]
[Cotton]: Yes, sir.
Cotton did not thereafter object or ask to withdraw his plea.
After Cotton failed to successfully complete the program at the Transitional
Treatment Center in Victoria, Texas, the trial court imposed sanctions on Cotton and
ordered him to an Intermediate Sanction Facility (ISF) on December 15, 2011. He was
released from ISF on March 7, 2012 and continued on community supervision.
On July 16, 2012, the trial court sanctioned Cotton for a second time to a repeat
offender caseload, substance abuse intensive caseload, and outpatient intensive
caseload. On October 4, 2012, Cotton received a violation report for failure to report to
the community supervision officer during the months of July, August, and September;
failure to report any change in his residence, job, or job status; failure to submit to the
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treatment center; and failure to report to the probation department.
On November 30, 2012, at the hearing on the State’s motion to revoke, Cotton
argued for “a sentence on the bottom range of the sentencing guideline,” but made no
mention of the eight-year term of the original plea offer. The State argued, without
objection, for an eleven-year sentence. The trial court then revoked Cotton’s deferred-
adjudication community supervision, found him guilty of burglary of a habitation, and
sentenced him to twelve years in the Institutional Division of the Texas Department of
Criminal Justice. Although Cotton objected to the harshness of the sentence and asked
for credit for time served, he neither objected that the current sentence was greater than
the original plea agreement, nor asked to withdraw his guilty plea.
II. WAIVER
By Cotton’s first issue, he argues that the trial court abused its discretion in
imposing a twelve-year sentence instead of the original plea agreement the State offered
of eight years.
A. Preservation of Error
To preserve an error for appellate review, a party must present a timely objection
to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R.
APP. P. 33.1(a). As a general rule, an appellant may not complain of an error pertaining
to his sentence or punishment if he has failed to object or otherwise raise error in the trial
court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see Lanum v.
State, 952 S.W.2d 36, 40 (Tex. App.—San Antonio 1997, no pet.) (determining that issue
was waived where the defendant never requested permission to withdraw his plea at the
hearing when the trial court failed to follow the probation officer’s recommended
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sentence), cf. Papillion v. State, 908 S.W.2d 621, 623 (Tex. App.—Beaumont 1995, no
pet.) (holding defendant preserved issue by timely filing a motion for new trial even though
he failed to object at sentencing or request to withdraw his plea).
B. Discussion
Cotton never raised any complaint in the trial court regarding the court’s failure to
follow the plea bargain. Cotton raises this complaint for the first time on appeal.
However, Cotton not only failed to object, but acquiesced to the sentence by failing to
object on the grounds that the twelve-year sentence was greater than the original eight-
year sentence. Because Cotton failed to preserve error, we overrule his first issue.
Mercado, 718 S.W.2d at 296.
III. INTERVENING DEFERRAL OF ADJUDICATION ON A PLEA BARGAIN
Cotton’s second issue is that the trial court erred by sentencing him outside the
guidelines of the articulated plea agreement.
A. Applicable Law
“When a defendant pleads guilty pursuant to a plea bargain, the court shall inform
the defendant whether it will follow or reject such agreement in open court and before any
finding on the plea.” Ditto v. State, 988 S.W.2d 236, 238 (Tex. Crim. App. 1999)
(emphasis in original). Should the court reject any such agreement, the defendant shall
be permitted to withdraw his plea of guilty or nolo contendere. See TEX. CODE CRIM.
PROC. ANN. art. 26.13(a)(2) (West, Westlaw through 2013 3d C.S.). By imposing a
punishment that comports exactly with the terms of a plea agreement, a trial court informs
an appellant by its actions that it is following an agreement. Ditto, 988 S.W.2d at 238.
Even if a trial court is viewed as rejecting a plea agreement by sentencing a defendant to
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deferred adjudication community supervision, a defendant could withdraw his plea at that
point. Id. at 238 & n.4.
Here, however, the trial court never accepted the plea bargain because Cotton
requested drug treatment and deferred adjudication at the hearing instead. Since the
trial court rejected the plea bargain, it is restricted in the sentence it imposes only by the
relevant statutory limits. See TEX. PENAL CODE ANN. § 12.01 (West, Westlaw through
2013 3d C.S.); Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1991);
Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim. App. 2005) (noting that even if parties
purport to have a plea bargain as to the sentence to be assessed after adjudication, the
trial court is not bound by agreement after adjudication).
Assuming arguendo that the trial court had accepted the plea agreement, a plea
bargain will not continue to protect a defendant who receives deferred-adjudication
community supervision if the trial court proceeds to adjudication at a later date. Ex parte
Broadway, 301 S.W.3d 694, 698 n.10 (Tex. Crim. App. 2009). If a defendant violates
the terms of the deferred-adjudication community supervision, the court will no longer be
limited by the procedures of article 26.13, which require that the trial court sentence in
accordance with the plea agreement or allow the defendant to withdraw the plea. Id.
Therefore, the trial court need not assess punishment in accordance with any plea
agreement after the revocation of community supervision. Id. Thus, unless the plea
agreement simply reports the statutory limits for punishment, it will not accurately reflect
the punishment that could be assessed if guilt is adjudicated. Id. The only thing
“certain” is that the judge can assess any punishment statutorily permitted. Id.
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B. Discussion
Cotton cites Perkins v. Court of Appeals and argues, “Once a trial judge approves
the plea bargain and accepts the guilty plea, the judge has a ministerial duty, mandatory
and non-discretionary duty to enforce the plea bargain it approved.” 738 S.W.2d 276,
283 (Tex. Crim. App. 1987). However, in this case, the trial court did not accept the
original plea agreement and instead ordered deferred adjudication and placed Cotton on
community supervision. In the context of plea bargaining, the code of criminal procedure
provides that the recommendation of the prosecutor on punishment is not binding on the
court, and the trial court has discretion to follow or reject a plea bargain agreement as
long as the defendant is allowed to withdraw his guilty plea if the trial court rejects the
agreement. TEX. CODE CRIM. PROC. art. 26.13 (a)(2). By requesting a drug treatment
program and accepting deferred-adjudication community supervision instead of the
bargained-for eight-year sentence, Cotton demonstrated his choice not to withdraw his
plea. See Ditto, 988 S.W.2d at 238 n.4. The trial court warned Cotton that a sentence
of up to twenty years confinement could be imposed on him upon violation of the terms
of deferred adjudication community supervision, and Cotton accepted the terms. With
this in mind, Cotton cannot now challenge the sentence he received after adjudication.
Mercado, 718 S.W.2d at 296. We overrule Cotton’s second issue.
IV. INEFFECTIVENESS OF COUNSEL
Cotton’s third issue is that his counsel was ineffective at the initial plea hearing
and at the motion to revoke community supervision hearing.
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A. Standard of Review
When a defendant challenges the voluntariness of a plea based on the advice of
counsel and alleges that counsel was ineffective, the defendant has the burden to show
that (1) counsel’s performance fell below a reasonable standard of competence, and (2)
the defendant would, with a reasonable probability, have pled not guilty and insisted on
going to trial had counsel not committed the alleged errors. Ex parte Moody, 991 S.W.2d
856, 857–58) (Tex. Crim. App. 1999). In determining whether there is a deficiency, the
reviewing court should afford great deference to the trial court’s ability, indulging “a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Cueva v. State, 339 S.W.3d 839, 858 (Tex. App.—Corpus Christi 2011, pet.
ref’d) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). In addition, allegations
of ineffectiveness of counsel must be firmly founded in the record. Escobar v. State, 227
S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Mallet v. State,
65 S.W.3d 59, 63 (Tex. Crim. App. 2001)).
B. Discussion
Cotton argues that defense counsel had a duty to stop the initial plea hearing to
explain the consequences relating to deferred adjudication should Cotton violate the
terms of his community supervision. However, the record shows the trial court warned
Cotton that upon revocation, he could be sentenced up to twenty years in prison. Cotton
expressly accepted this possibility. Even if Cotton’s counsel did misinform him at some
earlier stage, the misinformation was corrected in this exchange conducted in front of
Cotton’s counsel. See Curry v. State, 861 S.W.2d 479, 483 (Tex. App.—Fort Worth
1993, pet. ref’d). Thus, Cotton demonstrated he understood the trial court rejected his
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plea agreement.
In addition, on June 26, 2012, at the initial hearing, Cotton signed a statement in
which he attested that he understood the court’s admonishments. The document
provided that after the hearing, it would be too late to complain about any matter that
could have been addressed at the hearing. Under “No Binding Plea Bargain,” the
document stipulated that “although you may plea bargain with the State for an agreed
recommendation, the Court is not bound to follow any agreed recommendation you may
have with the State”; thus, the original plea agreement “does not carry forward to a
revocation or adjudication proceeding.” By signing this document, Cotton affirmed that
he personally read the documents and fully understood the matters contained therein.
Further, the document set forth that if the court revoked Cotton’s community supervision,
the court could set punishment up to the maximum term provided by law for the offense,
even though counsel may have recommended a lesser sentence. In other words, by
rejecting the agreement, the court was free to set whatever punishment it deemed
appropriate in Cotton’s case, regardless of the recommendation of counsel. Again, on
November 30, 2012, Cotton signed that he understood these matters. In light of the
foregoing, Cotton has failed to demonstrate how, if at all, his attorney’s performance was
deficient in this regard. Curry, 861 S.W.2d at 483. He has also failed to show how his
attorney’s performance would have affected the outcome of his case. Id. Cotton’s third
issue is overruled.
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V. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
24th day of July, 2014.
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