George Gaal v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-00382-CR
GEORGE GAAL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION ON REMAND1
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Appellant George Gaal appeals his felony conviction for driving while
intoxicated (DWI).2 In our prior opinion in this case, we sustained appellant‘s
fourth point, in which he argued that the trial judge should have been recused.
See Gaal v. State, No. 02-08-00382-CR, 2010 WL 323574, at *4 (Tex. App.—
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West 2011).
1
Fort Worth Jan. 28, 2010) (not designated for publication), rev’d, 332 S.W.3d 448
(Tex. Crim. App. 2011). However, the court of criminal appeals reversed our
decision and remanded the case so that we may consider appellant‘s remaining
points that we did not address in our original opinion. Gaal, 332 S.W.3d at 460.
For the reasons stated below, we overrule those points and affirm the trial court‘s
judgment.
Background Facts
Near midnight on September 23, 2007, Gayle Cook was riding in a pickup
with her husband on Milam Road toward Interstate 35 when she spotted a truck
stopped in the middle of the road and saw appellant on the ground in front of the
truck. It appeared to Cook that appellant‘s truck had hit a guardrail and was
damaged. Cook approached appellant to ask him if he was okay, but appellant
was disoriented and did not appropriately answer Cook‘s questions. Cook and
her husband went to a nearby truck stop and called 911 on her cellular phone,
but while they were doing so, appellant began to drive away.
Cook and her husband followed appellant, who was driving slowly and
swerving. Appellant eventually drove into a ditch, but then he drove back onto
the road very quickly before he pulled into a parking lot and stopped his truck.
Cook had continued her contact with 911, and a Denton police officer eventually
arrived at the parking lot and approached appellant‘s truck. The officer noticed
that appellant had slurred speech, that he smelled like alcohol, and that he had
bloodshot eyes. Another Denton police officer arrived at the parking lot and
2
asked appellant to take a standardized field sobriety test and two
nonstandardized tests, all of which he failed. The officer arrested appellant and
found an empty bottle of Crown Royal and two empty beer bottles in his truck.
In December 2007, a Denton County grand jury indicted appellant for DWI.
The indictment alleged that appellant had two prior DWI convictions. The parties
filed various pretrial documents, and appellant‘s trial began in August 2008.
Appellant initially pled not guilty, but after the jury was selected, appellant
changed his plea to guilty.
The parties presented evidence concerning appellant‘s punishment, and
appellant testified and asked the jury to place him on community supervision.
After the parties presented closing arguments, the jury assessed appellant‘s
punishment at ten years‘ confinement. Appellant filed a motion for new trial, but
the trial court denied the motion. Appellant subsequently filed his notice of
appeal.
The Voluntariness of Appellant’s Guilty Plea and the Trial Court’s
Compliance with Statutorily Required Admonishments
In his first point, appellant contends that his guilty plea is involuntary
because he did not receive proper constitutional or statutory admonishments
when he made the plea. Just before the parties‘ opening statements, in the
presence of the jury, appellant pled guilty.3 The following colloquy then occurred:
3
Appellant also pled true to the indictment‘s paragraphs that concerned his
previous convictions.
3
THE COURT: All right.
Mr. Gaal, is that your wish, to plead guilty?
DEFENDANT: Yes, Your Honor.
THE COURT: And you are pleading guilty?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you pleading guilty because you are guilty
and for no other reason?
DEFENDANT: Yes, Your Honor.
After the State called several witnesses and rested its case, appellant
judicially confessed to DWI, signed plea paperwork, received admonishments
about his constitutional and statutory rights from the trial court, and told the court
that he did not have any questions about the admonishments or his guilty plea.4
He affirmed in writing that he was aware of the consequences of his plea.
He also affirmed that he had waived his rights ―voluntarily, knowingly, and
intelligently.‖ He told the trial court orally that he had discussed the plea
paperwork with his counsel, and his counsel confirmed in writing that he had
consulted appellant about his guilty plea. Appellant orally recognized that he had
waived a jury trial concerning his guilt. The trial court asked him if he needed
―any additional time to speak with [his] attorneys‖ about the plea, and appellant
said, ―No, sir.‖ Despite these facts, appellant asserts that the trial court‘s
4
The plea paperwork recited that appellant was waiving his rights to remain
silent, to confront and cross-examine witnesses, to not incriminate himself, and to
be tried by a jury.
4
admonishments and his waiver of rights were not sufficient because they did not
occur when he pled guilty but instead occurred hours after the plea.
Constitutional admonishments and voluntariness
―Waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.‖ Brady v. United States, 397 U.S. 742,
748, 90 S. Ct. 1463, 1469 (1970). In appellant‘s argument that he did not receive
timely constitutional admonishments to make him aware of the effects of his
guilty plea, he relies primarily on Boykin v. Alabama, in which the United States
Supreme Court held that when a defendant pleads guilty, the record must
affirmatively disclose that the plea was ―voluntarily and understandingly entered,‖
and that courts may not ―presume a waiver of . . . important [constitutional] rights
from a silent record.‖ 395 U.S. 238, 243–44, 89 S. Ct. 1709, 1712–13 (1969);
see Aguirre-Mata v. State, 125 S.W.3d 473, 475 (Tex. Crim. App. 2003) (―Boykin
did not specifically set out what due process requires to be ‗spread on the record‘
except to say generally that state courts should make sure that a guilty-pleading
defendant ‗has a full understanding of what the plea connotes and of its
consequence.‘‖) (footnote omitted); Fuller v. State, 253 S.W.3d 220, 229 (Tex.
Crim. App. 2008) (relating that Boykin’s requirement of requiring an affirmative
showing of voluntariness protects a defendant‘s right of due process), cert.
denied, 129 S. Ct. 904 (2009). The Court in Boykin recognized three critical
constitutional rights that a guilty plea waives: the privilege against compelled
5
self-incrimination, the right to a trial by jury, and the right to confront one‘s
accusers. 395 U.S. at 243, 89 S. Ct. at 1712.
A few years ago, the court of criminal appeals examined a case in which a
defendant, who had been charged with five counts of aggravated sexual assault,
pled guilty before a jury but did not receive express constitutional
admonishments at the time of the plea (or any time thereafter). See Gardner v.
State, 164 S.W.3d 393, 394 (Tex. Crim. App. 2005).5 The defendant‘s counsel,
however, ―referred to [the defendant‘s] guilty plea several times during the
punishment phase‖ and stressed to the jury throughout various parts of the trial
that the defendant had taken responsibility for the offense. Id. at 395–97.
The jury assessed punishment at thirty-five years‘ confinement on each count.
Id. at 397. The defendant, citing Boykin, complained on appeal about not having
received the admonishments. Id. The court of criminal appeals, held, however,
that the record adequately showed
that appellant understood that he was waiving [his constitutional]
rights when he pled guilty. This may be inferred, in part, from
appellant‘s counsel‘s statements during the punishment phase
mentioning that appellant would testify even though he did not have
to under the Fifth Amendment and that appellant‘s guilty plea saved
the victim from having to testify and saved the jury from the ―grueling
experience‖ of determining appellant‘s guilt.
The voluntary nature of appellant‘s guilty plea is further shown
in the record by the overwhelming evidence that appellant‘s guilty
5
As in this case, the trial court in Gardner ensured at the time of the plea
that the defendant was pleading guilty for no other reason than that he was
guilty. Id.
6
plea was part of a strategy (which we may also infer was done in
consultation with competent counsel) to persuade the jury to grant
appellant probation. Unlike this case, the record in Boykin was silent
on whether the defendant‘s guilty plea was part of some trial
strategy.
Id. at 399 (citations omitted).
The voluntary nature of appellant‘s guilty plea may likewise be shown by
the record‘s indication that the plea was part of a trial strategy. From the
beginning of his own counsel‘s voir dire, appellant‘s goals were to minimize the
issue of his guilt and to extensively focus on the issue of punishment and the
possibility that the jury would give him a low term of confinement or place him on
community supervision.6 For example, just after appellant‘s guilty plea, during
his counsel‘s opening statement, counsel emphasized that appellant had pled
guilty. Appellant‘s counsel declined to ask any questions of Cook when she
recounted the events that occurred on the night of appellant‘s DWI, and counsel
asked scant questions of the other witnesses who testified about the facts of
appellant‘s offense.7 When appellant testified, he confirmed his guilt, told the jury
that he is an alcoholic and that he views alcohol as a ―demon,‖ expressed that he
is a ―changed person‖ since the time of his offense, and said, ―[W]ell, I need help,
and I feel like the only way that I‘ll be able to get help is probation and to be able
6
During voir dire, appellant‘s counsel asked the jury panel members about
their opinions on the purpose of confinement and conversed with them about
specific attributes of community supervision.
7
We note, therefore, that while appellant later expressly waived his right of
confrontation, he nonetheless had the opportunity to exercise that right at trial.
7
to keep going and doing the things that I‘ve been doing for the last several
months.‖ Finally, during his closing argument, appellant‘s counsel said, ―Now,
[appellant] has come to this court today, and he has admitted he has done this
crime. He‘s taken responsibility . . . .‖
As in Gardner, therefore, we hold that the record implies, through
appellant‘s trial strategy of seeking community supervision, that appellant
understood the effects of his plea when he made it even though he had not
expressly been informed (at least by the trial court) of those effects at that time.
See id.; see also Vasquez v. State, 522 S.W.2d 910, 912 (Tex. Crim. App. 1975)
(stating that the ―failure to give [admonishments regarding the right to confront
witnesses or the right against compelled self-incrimination] does not invalidate a
plea of guilty otherwise freely and voluntarily made‖); Slaughter v. State, No. 02-
07-00050-CR, 2007 WL 3120688, at *5 (Tex. App.—Fort Worth Oct. 25, 2007, no
pet.) (mem. op., not designated for publication) (relying on Gardner to overrule
an appellant‘s issue about the lack of express constitutional admonishments in
conjunction with a guilty plea when the record showed that the plea was part of a
trial strategy). And unlike in Gardner, this implication is confirmed by the
additional fact that appellant actually received all required admonishments and
expressly waived his constitutional rights at a time in which he could have
withdrawn his plea. See Murray v. State, 302 S.W.3d 874, 883 (Tex. Crim. App.
2009) (explaining that when a defendant pleads guilty in front of a jury, the
defendant may withdraw the plea at any time before the jury retires to consider
8
its verdict); Abrego v. State, 977 S.W.2d 835, 837 (Tex. App.—Fort Worth 1998,
pet. ref‘d) (describing the right to withdraw a guilty plea before the jury retires as
―unqualified‖).
Furthermore, appellant had notice of the three constitutional rights
mentioned in Boykin beyond the admonishments included in the plea paperwork.
Before voir dire, in appellant‘s presence, the trial court told the jury about the
Fifth Amendment, explaining that ―[appellant] cannot be made to testify by
anybody . . . unless he determines he wants to testify.‖ 8 Later, before appellant
testified, the trial court asked appellant whether he had talked with his attorneys
about his Fifth Amendment right against compelled self-incrimination, and he
confirmed that he had spoken with them. Next, appellant‘s knowledge of his right
to confront and cross-examine witnesses may be inferred by the fact that his
counsel actually did so. See Johnson v. State, 501 S.W.2d 306, 307 (Tex. Crim.
App. 1973). And appellant must have been aware of his right to a jury trial since
he exercised it when he announced his guilty plea in front of the jury and
continued to exercise it, as to a determination of his punishment, after
announcing the plea. See id.; see also Williams v. State, 674 S.W.2d 315, 318
(Tex. Crim. App. 1984) (stating that a ―plea of guilty before a jury is a trial by jury
and does not constitute waiver of trial by jury‖).
8
We note that appellant signed the plea paperwork, and therefore
expressly waived his right against compelled self-incrimination, before he
testified.
9
For all of these reasons, we overrule appellant‘s first point to the extent
that appellant contends that the trial court erred by not giving him express
constitutional admonishments at the time that he pled guilty.
Statutory admonishments
Appellant also argues that the trial court erred by failing to give him
statutory admonishments at the time that he pled guilty. Article 26.13 of the code
of criminal procedure requires a trial court, prior to accepting a guilty plea, to
notify a defendant of various facts and conditions related to the plea. See Tex.
Code Crim. Proc. Ann. art. 26.13 (West 2009); Bessey v. State, 239 S.W.3d 809,
812 (Tex. Crim. App. 2007). The requirements of article 26.13 apply to a guilty
plea that is made before a jury. See Palacios v. State, 556 S.W.2d 349, 352
(Tex. Crim. App. 1977). The trial court‘s failure to comply with such requirements
may be raised for the first time on appeal. See Bessey, 239 S.W.3d at 812
(characterizing the right to admonishments under article 26.13 as a ―waivable-
only right,‖ meaning that it ―cannot be forfeited and may be raised for the first
time on appeal unless it is expressly waived‖).
Assuming that the trial court erred by giving appellant his statutory
admonishments after he pled guilty and after the State had rested its case, 9 that
9
In Palacios, the court of criminal appeals said that article 26.13‘s
admonishments should be given prior to the trial court‘s acceptance of the guilty
plea. 556 S.W.2d at 351–52; see also Tutor v. State, 599 S.W.2d 818, 819 (Tex.
Crim. App. [Panel Op.] 1980) (―The proper time to admonish a defendant is when
he is arraigned, and prior to impaneling the jury to assess his punishment.‖).
10
error must be reviewed under the nonconstitutional harm standard of rule of
appellate procedure 44.2(b). See Tex. R. App. P. 44.2(b) (stating that any
nonconstitutional error that does not ―affect substantial rights must be
disregarded‖); Bessey, 239 S.W.3d at 813; Carranza v. State, 980 S.W.2d 653,
657 (Tex. Crim. App. 1998); Fakeye v. State, 192 S.W.3d 112, 113 (Tex. App.—
Fort Worth 2006), aff’d, 227 S.W.3d 714 (Tex. Crim. App. 2007).10 Accordingly,
the trial court‘s failure to admonish a defendant of a particular consequence of a
plea is harmless when either that consequence does not apply to the defendant
or the record demonstrates that the defendant otherwise had knowledge of the
consequence. See Bessey, 239 S.W.3d at 813–14; Anderson v. State, 182
S.W.3d 914, 919 (Tex. Crim. App. 2006) (explaining that ―[w]hen courts have
failed to admonish guilty-pleading defendants on the immigration consequence of
conviction, we have held the error was harmless error when the record showed
that a defendant was a citizen of the United States‖); Slaughter, 2007 WL
3120688, at *6 (disregarding error under rule 44.2(b) because ―most of the
admonishments set forth in article 26.13 [did] not apply to the facts of th[e] case;
the one requirement that [did]—admonishment about the range of punishment—
was discussed in voir dire‖).
10
We recognize that rule 44.2(b) ―does not place a burden on either party.‖
Umoja v. State, 965 S.W.2d 3, 12 (Tex. App.—Fort Worth 1997, no pet.) (op. on
reh‘g).
11
The specific admonishments that article 26.13 requires are (1) the range of
punishment attached to the offense, (2) admonishments related to plea bargains,
(3) consequences of the plea affecting a noncitizen, and (4) the fact that sex
offender registration requirements may be imposed following the conviction. Tex.
Code Crim. Proc. Ann. art. 26.13(a); Bessey, 239 S.W.3d at 812. In the case
before us, appellant‘s guilty plea did not occur because of a plea bargain,
appellant was born in Dallas and is a United States citizen, and DWI is not an
offense that requires sex offender registration. See Tex. Code Crim. Proc. Ann.
art. 62.001(5) (West Supp. 2010). As for the admonishment concerning the
range of punishment, the record shows that during the voir dire of the jury panel,
the prosecutor and appellant‘s counsel separately explained the punishment
range for felony DWI as two to ten years‘ confinement. Thus, we conclude no
harm resulted from a lack of an admonition about the range of punishment when
appellant pled guilty. See Tex. R. App. P. 44.2(b); Moore v. State, 278 S.W.3d
444, 447–48 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
We hold that even if the trial court erred by giving appellant statutory
admonishments after the State rested its case, that error is harmless and must
therefore be disregarded. See Tex. R. App. P. 44.2(b). Thus, we overrule the
remainder of appellant‘s first point.
The Effectiveness of Appellant’s Counsel
In his second point, appellant argues that his trial counsel‘s assistance was
ineffective because counsel allegedly did not call a material witness at trial, failed
12
to ―recognize [his] lack of normal cognitive ability,‖ and failed to adequately
convey the State‘s plea offer to him.
Standard of review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel‘s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel‘s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988
S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson, 9 S.W.3d at 813. The issue is whether counsel‘s assistance was
reasonable under all the circumstances and prevailing professional norms at the
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel‘s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel‘s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at
63. A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at
13
740; Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel‘s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d
at 63). To overcome the presumption of reasonable professional assistance,
―any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting
Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to
simply infer ineffective assistance based upon unclear portions of the record.
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel‘s errors
were so serious that they deprived the defendant of a fair and reliable trial.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must
show there is a reasonable probability that, but for counsel‘s unprofessional
errors, the result of the proceeding would have been different. Id. at 694, 104 S.
Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The ultimate focus of our inquiry must be on the
fundamental fairness of the proceeding in which the result is being challenged.
Id. at 697, 104 S. Ct. at 2070.
Analysis
Appellant first contends that his trial counsel was ineffective because
counsel did not adequately investigate testimony that could have been offered by
Dr. Carlos Venegas or call Dr. Venegas to testify. To obtain relief on an
14
ineffective assistance of counsel claim based on an uncalled witness, appellant
must show that Dr. Venegas was available to testify and that his testimony would
have benefited appellant. See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim.
App. 2004) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)).
Appellant called Dr. Venegas to testify in the hearing on appellant‘s motion
for new trial. During this hearing, Dr. Venegas said that he treated appellant for
diabetes and alcoholism and that two weeks before appellant‘s trial, he briefly
spoke on the telephone with one of appellant‘s trial attorneys, Brian Bolton, for
about five minutes. During this conversation, Dr. Venegas stated that he was
going to be in California during appellant‘s trial, and Bolton did not seem
interested in the conversation.
Dr. Venegas testified that appellant‘s diabetes and the disease‘s
complications ―may have had something to do with his lack of judgment and
cognitive skills‖ and that appellant could not understand this interrelation between
alcoholism and diabetes.11 According to Dr. Venegas, Bolton told him that he did
not need him to testify even though Bolton had not heard all of the facts that he
could have testified to. However, Dr. Venegas told Martha Bowling (an employee
at a recovery center that appellant used) about this information regarding
appellant, and Bowling testified at trial regarding appellant‘s outpatient treatment
11
Dr. Venegas explained, ―[D]iabetes over time can affect . . . the brain,
therefore diminishing [a person‘s] potential to take up oxygen, which would affect
brain cells, which would also impair cognition.‖
15
and the treatment that he could receive through various injections. Bowling‘s
testimony included a substantial part of what Dr. Venegas said he could have
testified about if Bolton had decided to call him as a witness.12
Bowling also testified at the hearing on appellant‘s motion for new trial.
She believed that appellant had trouble understanding the lessons taught in the
outpatient classes he attended. However, she did not provide testimony at trial in
that regard because Bolton ―didn‘t seem to want to hear any details‖ about her
concerns for appellant‘s cognitive ability. Bowling said that she could have also
testified about the potential effect of high blood sugar on an individual‘s
judgment.
Bolton testified that appellant hired him to develop a strategy of seeking
community supervision although the State had previously offered two years‘
confinement (which was the minimum term) during plea bargain negotiations with
appellant‘s prior counsel. Bolton knew that Dr. Venegas was one of appellant‘s
physicians, and Bolton knew of the medical treatment that appellant had
received. Moreover, Bolton understood the relation between appellant‘s diabetes
and alcoholism and stated that ―[d]iabetic conditions, you know, always I‘ve seen,
as far as I can tell with members of the defense bar, have been an issue for
contesting guilt.‖ However, he believed that focusing on appellant‘s diabetes in
12
Dr. Venegas stated that he had a ―continual dialogue‖ with Bowling about
appellant‘s treatments.
16
relation to appellant‘s punishment would have been detrimental because the
jury may have seen it as a smoke screen, an artificial, shallow
excuse. And I‘m certainly not taking away from [appellant‘s] medical
issues, but from a jury‘s perspective, it‘s been my experience and
the lawyers that I know of, diabetic issues are not . . . a punishment
issue. It‘s more of a guilt/innocence thing to attack what we see on
the videotape or why someone performs poorly on field sobriety
tests, not is this person eligible for probation or confinement.
Because Bolton did not believe that presenting evidence about appellant‘s
diabetic conditions matched appellant‘s strategy of seeking community
supervision, Bolton did not believe that Dr. Venegas‘s testimony could have
added anything that could not have been provided by another witness. Finally,
Bolton testified that he nonetheless considered obtaining a subpoena for Dr.
Venegas ―[j]ust to have him [at trial] in case the bottom fell out . . . . Just in
case.‖
In our ineffective assistance review, we must exercise substantial restraint
before second-guessing or interfering in the matters of trial strategy and tactics.
Holland v. State, 761 S.W.2d 307, 321 (Tex. Crim. App. 1988), cert. denied, 489
U.S. 1091 (1989); see Hill v. State, 303 S.W.3d 863, 878–79 (Tex. App.—Fort
Worth 2009, pet. ref‘d); Ex parte Jessep, 281 S.W.3d 675, 682 (Tex. App.—
Amarillo 2009, pet. ref‘d). Thus, the mere fact that another attorney might have
pursued a different course will not support a finding of ineffectiveness. Jessep,
281 S.W.3d at 682.
Bolton‘s testimony shows that he made a strategic decision after speaking
with Dr. Venegas (albeit briefly) that his testimony would not have been beneficial
17
to appellant‘s goal of obtaining community supervision. We conclude that
appellant has not shown a sufficient reason on appeal for us to second-guess
that decision or to depart from our usual deference to trial counsel in ineffective
assistance claims. See Salinas, 163 S.W.3d at 740.
Moreover, portions of Dr. Venegas‘s testimony might have actually harmed
appellant‘s case. Dr. Venegas said that appellant did not take advised injections
related to his alcoholism despite their availability and despite Dr. Venegas‘s
repeated phone calls to appellant. At one point, the following exchange occurred
between the trial court and Dr. Venegas:
THE COURT: Okay. Now I‘m looking at the indictment here
and the case that he was tried for. He committed the offense of
driving while intoxicated on the 23rd day of September of 2007.
That was after your treatment.
THE WITNESS: The first, yes, correct.
THE COURT: Okay. So then, really and truly, either your
treatment wasn‘t having any effect or [appellant] wasn‘t really caring
about the treatment and following the regimen that you prescribed
for him?
THE WITNESS: Solely, it would be a combination of both.
I would have to say a combination of both.
Dr. Venegas‘s testimony that appellant had either not followed or not cared about
his treatment could have hampered appellant‘s community supervision strategy.
See White, 160 S.W.3d at 52 (explaining that the appellant has the burden in an
ineffective assistance challenge to show that an uncalled witness‘s testimony
would have been beneficial). Dr. Venegas‘s testimony could have left the jury
18
with the impression that treatment was not working because appellant became
Dr. Venegas‘s patient in October 2006, and appellant‘s arrest for the DWI in this
case occurred almost a year later.
Finally, even if we were to conclude that Bolton should have sought a
continuance and attempted to use Dr. Venegas‘s testimony, our review of the
record does not show that the totality of appellant‘s counsel‘s representation was
ineffective. See King, 649 S.W.2d at 44 (explaining that ―[i]neffective assistance
of counsel cannot be established by separating out one portion of the trial
counsel‘s performance for examination‖); Pieringer v. State, 139 S.W.3d 713,
717 (Tex. App.—Fort Worth 2004, no pet.).
For all of these reasons, we hold that appellant has not sustained his
burden of proving by a preponderance of the evidence that Bolton was ineffective
because he did not use greater efforts to explore Dr. Venegas‘s testimony or use
the testimony at trial. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Appellant also succinctly asserts in his brief that his counsel was
ineffective by not recognizing his ―lack of cognitive abilities.‖ Appellant says in
his brief that a defendant‘s ―cognitive abilities . . . to even enter a knowing,
intentional, and voluntary plea [are] always at issue.‖ Also, some of Dr.
Venegas‘s testimony at the hearing on appellant‘s motion for new trial attempted
to connect appellant‘s alleged cognitive deficiency to his decision to plead guilty.
But the record shows that for strategic reasons, appellant engineered his
decision to plead guilty. Bolton testified at the hearing that appellant hired him
19
even though appellant‘s previous attorney had negotiated a plea bargain for two
years‘ confinement because appellant wanted a ―second opinion‖ about whether
he could be granted community supervision. Bolton confirmed during the hearing
that he informed appellant about the risk of rejecting the plea bargain and
seeking community supervision at trial. Furthermore, Bolton and appellant‘s
other trial attorney opined at trial that appellant was capable and competent to
plead guilty.
Next, appellant‘s use of his alleged lack of cognition to attempt to excuse
his DWI would have likely been unsuccessful because Dr. Venegas admitted that
appellant understood that if he consumed excessive alcohol and drove, he could
be arrested for DWI. And although Dr. Venegas asserted that the jury may have
been more lenient if it knew that appellant misunderstood his alcoholism, offering
such testimony to the jury might have been incongruous with appellant‘s plan to
take responsibility for his offense and seek community supervision.
We hold that appellant has not shown a reasonable probability that his
counsel‘s greater understanding of his apparent lack of cognitive ability would
have changed the outcome of his trial or the punishment given by the jury.
We overrule that aspect of appellant‘s ineffective assistance claim on that basis.
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Finally, appellant argues that his original counsel was ineffective by
allegedly not conveying the complete terms of the State‘s plea bargain offer. See
Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000) (―Failure of defense
20
counsel to inform a criminal defendant of plea offers made by the State is an
omission that falls below an objective standard of professional reasonableness.‖);
Flores v. State, 784 S.W.2d 579, 581 (Tex. App.—Fort Worth 1990, pet. ref‘d) (―A
defense attorney has an obligation to fully advise his client of the terms . . . of
plea offers extended by the State.‖) Appellant contends in his brief that ―[t]he
record seems to indicate there may have been an acceptance deadline (set by
the court) or the plea offer would be withdrawn,‖ that he ―was not informed by his
original trial counsel that there was a deadline for acceptance,‖ and that
―[n]othing in the record controverts [his] assertion he was never informed of any
deadline . . . , assuming that deadline indeed existed.‖ [Emphasis added.]
Appellant concludes, ―Assuming arguendo that a deadline was attached . . . ,
there is no evidence said deadline . . . was conveyed to [him].‖ [Emphasis
added.]
During a hearing on appellant‘s motion to recuse the trial judge, the
prosecutor said,
The initial plea offer on th[e] case was three years, and we worked it
down to two . . . .
. . . Mr. Dobson [appellant‘s original counsel] got ahold of me
and said, [―]Look, I can probably get him to understand the reasons
behind taking two years.[‖] . . . I told Mr. Dobson, [―]That‘s fine with
the State.[‖] The offer was three, and I‘m not going to quibble over a
year. So . . . in the end of June, that‘s what I was expecting to do on
June 24th, was plea him out. That‘s what the Court was expecting.
That morning, it came to my attention that Mr. Dobson was no
longer representing [appellant], that new attorneys had been hired
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and those are the two attorneys sitting here in front of you. They
showed up that afternoon. . . .
Once Mr. Dobson got off the case, I informed both the two
new attorneys that as far as the State was concerned, the plea deal
was off. . . . [Appellant] had a good offer; he chose not to take it.
During the same hearing, appellant‘s trial counsel said, ―[W]e were called before
the Honorable Court to give our announcement as to the State‘s offer, which
[appellant] refused.‖
Thus, even if the two-year plea bargain offer had a deadline that appellant
did not know about, the termination of the offer was not caused by the expiration
of the deadline; it was caused by the State‘s decision to withdraw the offer and
appellant‘s nearly contemporaneous decision to reject it. Because appellant
cannot show a reasonable probability that the result of the trial court‘s
proceedings would have changed had he known of a deadline to accept the
State‘s plea bargain offer, we overrule that basis for appellant‘s ineffective
assistance claim. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
We hold that each of appellant‘s contentions regarding his claim of
ineffective assistance is without merit, and we overrule his second point.
The Trial Court’s Alleged Interference in Plea Negotiations
In his third point, appellant contends that the trial court improperly engaged
in his plea negotiations with the State. The basis for this allegation is the
following statement that the trial judge made during a pretrial hearing in
June 2008:
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THE COURT: All right. We‘re supposed to have a plea here
today. It appears that [appellant] does not want to plea. For the
record, I will not accept any plea bargain in this matter, unless it is
for the maximum term of ten years.
Appellant claims that this statement evidences the trial court‘s intrusion into the
plea negotiation process and warrants reversal.13
Plea bargains are an integral part of the criminal justice system. Moore v.
State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009) (citing Gutierrez v. State, 108
S.W.3d 304, 306 (Tex. Crim. App. 2003)). At its core, a plea bargain is a
contract between the State and the defendant. Id. As a contract, when both
parties have entered knowingly and voluntarily into the plea bargain, they are
bound by its terms once it is accepted by the judge. Id. Because a plea-bargain
agreement is solely between the State and the defendant, only those parties may
alter the terms of the agreement; the trial court commits error if it unilaterally
adds unnegotiated terms to a plea-bargain agreement. Id. at 332 (explaining that
the ―only proper role of the trial court in the plea-bargain process is advising the
defendant whether it will ‗follow or reject‘ the bargain between the state and the
defendant‖).
A trial judge‘s participation in plea discussions prior to an agreement being
reached is disfavored because the power and position of the judge may
13
In his supplemental brief on remand, appellant seems to contend that the
trial court coerced him into entering his guilty plea at trial. Appellant does not
explain, however, how the statement that is quoted above affected his decision to
plead guilty before the jury.
23
improperly influence the defendant to enter a guilty plea. Wright v. State, 776
S.W.2d 763, 767 (Tex. App.—Corpus Christi 1989, pet. ref‘d); see Perkins v.
Court of Appeals for Third Supreme Judicial Dist. of Texas, at Austin, 738
S.W.2d 276, 282 (Tex. Crim. App. 1987); Lynch v. State, 318 S.W.3d 902, 903
(Tex. App.—San Antonio 2010, pet. ref‘d). The trial judge should always avoid
the appearance of any judicial coercion or prejudgment of the defendant because
such influence might affect the voluntariness of the defendant‘s plea. Perkins,
738 S.W.2d at 282. The trial court remains free in every case, however, to
refuse to allow plea bargaining or to reject a particular plea bargain entered into
by the State and the defendant. Gaal, 332 S.W.3d at 457; State ex rel. Bryan v.
McDonald, 662 S.W.2d 5, 9 (Tex. Crim. App. 1983) (citing Morano v. State, 572
S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1978)); Smith v. State, 243
S.W.3d 722, 726 (Tex. App—Texarkana 2007, no pet.).
The record and applicable case law do not support the contention that the
trial court improperly interjected itself into the plea-bargaining process. The trial
court‘s statement that it would not ―accept any plea bargain in this matter, unless
it [was] for the maximum term‖ did not unilaterally add unnegotiated terms to the
plea-bargain agreement. See Moore, 295 S.W.3d at 332. Instead, the trial court
simply refused to allow any plea bargaining by effectively nullifying any
advantage to be gained by using a plea bargain—after all, a plea bargain for the
maximum amount of the statutory punishment is really no plea bargain at all.
See Gaal, 332 S.W.3d at 458. The trial court was acting within its right to ―refuse
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to allow plea bargaining or to reject a particular plea bargain.‖ See State ex rel.
Bryan, 662 S.W.2d at 9. We are unpersuaded by appellant‘s attempt to equate
the trial court‘s decision to effectively foreclose plea negotiations with
interference in negotiations.14
For these reasons, we conclude that the trial court did not interfere with
plea negotiations. We overrule appellant‘s third point.
Conclusion
Having overruled all of appellant‘s remaining points on remand, we affirm
the trial court‘s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 14, 2011
14
Appellant asserts that the trial court ―invaded the province of the
prosecution and the defense in continued negotiations to achieve a plea-bargain
disposition of the case.‖ In interpreting the trial judge‘s comment at issue,
however, the court of criminal appeals opined, ―The trial judge, perhaps
inarticulately, cut off plea bargaining.‖ Gaal, 332 S.W.3d at 458 (emphasis
added). The court held that a ―reasonable person . . . would translate the judge‘s
statement as, ‗I‘m not going to reset this case for any more plea negotiations;
we‘re going to trial.‘‖ Id. Thus, under the court of criminal appeals‘s reasoning,
the trial court did not participate in the plea bargaining process but instead
terminated it. Appellant also argues that the trial court took a ―firm position on
punishment‖ when making its statement about refusing to accept any plea
bargain except for the maximum amount of confinement. But the court of
criminal appeals rejected appellant‘s position in that regard. Id.
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