Alma Rosa Garza v. State ( 2012 )

NO. 07-12-0301-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 16, 2012
_____________________________
ALMA ROSA GARZA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 264TH DISTRICT COURT OF BELL COUNTY;
NO. 66564; HONORABLE MARTHA J. TRUDO, PRESIDING
_____________________________
Memorandum Opinion
_____________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Alma Rosa Garza was convicted of theft of over $100,000 but less than
$200,000 and sentenced to fourteen years confinement. She claims her trial
counsel was ineffective. We affirm the judgment.
An appellant has the burden to prove that her counsel was deficient
and that the deficiency caused prejudice. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Smith v. State, 286
S.W.3d 333, 340 (Tex. Crim. App. 2009). Moreover, she must do so by a
preponderance of the evidence, Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999), and there is a strong presumption that counsel's conduct
falls within a wide range of reasonably professional assistance. Robertson
v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Additionally, a
defendant is entitled to effective assistance of counsel during the plea
bargaining process. Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App.
1987). That right obligates counsel to convey any plea offer in a manner
that enables his client to make an informed decision. Id. at 74. However,
it must be remembered that the authority to accept or reject a plea offer
ultimately resides with the accused, even if counsel does not like the
decision. Id.
Here, appellant filed a motion for new trial raising the issue of the
effectiveness of counsel. A hearing was held on the motion, after which
the court denied the motion.
Appellant now argues that her trial counsel failed "to fully explain
that a plea of guilty" and one of nolo contendere "have the same legal
effect." Thus, "[b]ased upon that deficient advice, [she] entered a plea
of no contest . . . without a plea bargain which resulted in a sentence of
fourteen (14) years rather than a plea of guilty with a plea bargain of
community supervision with a finding of guilt being deferred for a period
of ten . . . years." We overrule the issue.
The evidence of record illustrates that appellant was offered a plea
bargain of ten years deferred adjudication if she plead guilty. However,
if she opted to plead nolo contendere (as she apparently desired to avoid
whatever affect a theft conviction would have on subsequent employment
efforts), there would be no agreement as to punishment. Instead, her plea
would be considered "open." Appellant's counsel discussed the alternatives
with his client for an hour or more. He also 1) explained to her "the
danger of [an] open plea as opposed to a sure thing of deferred
adjudication," 2) afforded her the opportunity to ask questions, and 3)
thought she understood the situation. But, counsel did concede he did not
expressly tell her that a "plea of no contest was like pleading guilty."
Before the plea was accepted, appellant affirmed that she was pleading
no contest "freely and voluntarily." So too did she state that she
understood that 1) there was no plea bargain as to "time, probation,
straight probation, deferred adjudication or anything else," 2) "the Court
could in fact sentence [her] to time in the penitentiary," and 3) she had
no recourse if the judge sentenced her to prison. Despite this
information, she persisted in entering a plea of nolo contendere, which
plea resulted in a fourteen-year prison sentence.
Appellant cites us to no authority imposing a duty upon counsel to
expressly inform a client wanting to plea nolo contendere that such a plea
has the same legal effect as a guilty plea. Admittedly, one could argue
that the absence of such knowledge may be one of many factors to consider
when assessing whether a defendant's decision to plead guilty was knowing
and voluntary or whether trial counsel sufficiently assisted his client in
making an intelligent decision. Yet, appellant never testified that she
would have accepted the plea bargain offered had she been told that a
guilty plea and a nolo plea had the same legal effect. Nor can it be said
that knowing the possibility of her being sentenced to prison was somehow
denied her. Indeed, counsel discussed the "dangers" of pleading nolo
contendere with her while the trial court admonished her that she could
still be sentenced to prison without recourse. And, when these
circumstances are considered, we cannot say that the trial court erred in
rejecting the allegation that counsel denied her effective assistance.
Instead, one can logically deduce from the record that appellant did
not want to suffer a finding of guilt, attempted to avoid such a finding by
pleading nolo contendere, knew the "dangers" of such a plea and that it
could still result in a prison term, intentionally rejected an offer of
community supervision to avoid pleading guilty, and opted to roll the dice
by engaging in an open plea. That is not the stuff depicting ineffective
assistance of counsel, but rather evidence of a knowing decision coupled
with an undesirable result.
In sum, there is sufficient evidence of record upon which the trial
court could conclude that the actions of trial counsel were not
ineffective.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.