Eloy Cardena AKA Abraham Cardenas v. State

NUMBER 13-06-293-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ELOY CARDENA AKA ABRAHAM CARDENAS, Appellant, v. THE STATE OF TEXAS , Appellee. On appeal from the 319th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Yañez Appellant, Abraham Cardenas, was charged with possession with intent to deliver cocaine, a first degree felony, enhanced by two prior felony convictions. (1) Without a plea agreement, appellant pleaded guilty to the charged offense, but "not true" to the enhancement paragraphs. The trial court found appellant guilty, found the enhancement allegations "true," and sentenced appellant to life in prison. (2) Appellant filed a motion to reconsider and motion for new trial, which the trial court denied. In three related issues, appellant contends: (1) the trial court failed to admonish him as to the applicable range of punishment; (2) he did not knowingly and voluntarily plead guilty because he did not understand the consequences of his actions; and (3) he was denied effective assistance of counsel at the plea hearing. We affirm. Standard of Review and Applicable Law Before accepting a plea of guilty or no contest, article 26.13 of the Texas Code of Criminal Procedure requires a trial court to admonish the defendant as to the range of punishment, as well as to other consequences of his plea. (3) The admonishments may be made either orally or in writing. (4) If the admonishments are made in writing, the defendant and his attorney must sign a statement that the defendant understood the admonitions and was aware of the consequences of the guilty plea. (5) Substantial compliance by the court in making the admonishments is sufficient, unless the defendant affirmatively shows that he was unaware of the consequences of his plea and that he was misled or harmed by the court's admonishment. (6) In cases where the trial court fails to admonish, a reviewing court must "independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him of the punishment range." (7) If the record establishes that the trial court properly admonished the defendant about the consequences of his plea, there is a prima facie showing that the guilty plea was entered knowingly and voluntarily. (8) The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. (9) In determining the voluntariness of a plea, we consider the totality of the circumstances, viewed in light of the entire record. (10) Once a defendant has pleaded guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. (11) A plea is not rendered involuntary simply because a defendant received a greater punishment than he anticipated. (12) When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the 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. (13) As with other types of ineffective assistance of counsel claims, appellant has the burden to show, by a preponderance of the evidence, that counsel's performance fell below a reasonable standard of competence, and that appellant would, with a reasonable probability, have pleaded not guilty and insisted on going to trial had he been properly advised. (14) 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. (15) Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. (16) There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. (17) Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. (18) Waiver of all non-jurisdictional defects that occurred before a guilty plea entered without the benefit of an agreed sentencing recommendation, other than the voluntariness of the plea, occurs when the judgment of guilt was rendered independent of, and is not supported by, the claimed error. (19) A claim of ineffective assistance may or may not have a direct nexus with a defendant's guilt or innocence. (20) A judgment of guilt is not rendered independent of, and is not supported by, a claim of ineffective assistance when there is no evidence that the defendant would have pleaded not guilty had it not been for his counsel's alleged ineffectiveness. (21) Analysis The State argues that by entering an open plea of guilty, appellant waived the right to appeal any nonjurisdictional defects, other than the voluntariness of his plea, that occurred before entry of the plea, so long as the judgment of guilt was rendered independent of, and is not supported by, the alleged error. (22) The State notes that: [a]ppellant has never testified, or claimed, that the trial court's alleged lack of admonishments, or his counsel's alleged actions, caused him to plead guilty where otherwise he would not have, nor that he would not have pled guilty, but would have gone to trial but for such alleged lack of admonishments or his counsel's alleged ineffectiveness. Thus, the State argues, appellant has failed to establish any "direct nexus" between the alleged errors--the lack of admonishments and ineffective assistance--and his innocence or guilt, and has therefore waived both of those claims. (23) We agree with the State that appellant has not claimed, either to the trial court or on appeal, that but for the alleged lack of admonishments or his counsel's alleged ineffectiveness, he would not have pleaded guilty and would have gone to trial. (24) Thus, we tend to agree with the State that appellant has waived his admonishment and ineffective assistance claims. (25) However, because both claims are arguably related to appellant's voluntariness claim, we will, out of an abundance of caution, review all of the claims together. Appellant argues that he was not admonished as to the range of punishment and was not aware of the consequences of his plea. In support, appellant notes that the written admonishments reflect that although he initialed eleven of the admonishments, he did not initial the admonishment as to the range of punishment. Appellant also points to his testimony at the hearing on his motion to reconsider that he "wasn't aware of the extremities of the--of the consequences of whatever was going to result on the case." He also testified that he "wasn't to know [sic] that [he] was going to get a life sentence for not taking that plea bargain or whatever they had offered [him] at first." (26) At appellant's plea hearing, appellant's counsel questioned appellant as follows: [Appellant's counsel]: Do you understand that if the Judge does find the enhancements to the fact that you've been to prison twice before, if he finds those to be true, you're looking at anywhere from 25 to life; is that right? [Appellant]: Yes, sir. On cross-examination, the State asked appellant: [Prosecutor]: Okay. And you understand that you're what's called a "HFO." You're 25 to life. You're basically what we call "habitual drug dealer," right? [Appellant]: Yes, ma'am. At the hearing on appellant's motion for reconsideration, on cross-examination by the State, the appellant testified: [Prosecutor]: Okay. But [appellant's counsel] did explain to you that the range of punishment on this case, if you didn't take the deal, was a minimum of 25 because of the habitual felony offender status, remember? [Appellant]: Yes, ma'am. [Prosecutor]: And he did tell you that you could get up to life in prison, even though he may not have thought I would ask for it, right? You knew it was a possibility? [Appellant]: Yes, ma'am. [Prosecutor]: You just didn't know I was going to do it? [Appellant]: Yes, ma'am. [Prosecutor]: So when you signed off on the paperwork, you knew very well that you were looking at anywhere from probation that you were going to ask for, up to life in prison, right? [Appellant]: Yes, ma'am. [Prosecutor]: And you signed it anyway? [Appellant]: Yes, ma'am. [Prosecutor]: And so your shock is at the outcome, not at the recommendation, correct? [Appellant]: Well, really at both of them. Appellant's trial attorney also testified at the hearing on the motion for reconsideration: [Appellant's appellate counsel]: Okay. And so when you came into Court that day, and when you and [appellant]--you knew [appellant] was going to ask for [probation], do you think [appellant] understood that potentially the State was going to recommend a life sentence as punishment? Did he understand that? [Appellant's trial counsel]: No, he did not understand that the State would be asking for a life sentence. He certainly understood the full range of punishment at the time, however. [Appellate counsel]: Do you think that he had the--do you think that he knowingly, intentionally and voluntarily came before the Court on an open plea? [Trial counsel]: Oh, yes. Most definitely, yes. . . . . I then spent I want to say at least 30 to 45 minutes--and again this is the fourth setting where I had gone over the plea papers, where I had explained to [appellant] that if he goes open to the Court, he's looking at the full range of punishment with a minimum of 25 years. We went through that at length. Now, when you asked me whether or not [appellant] appreciated the fact that he was looking at life, he certainly did not, but he was certainly aware of the full range of punishment. Now would I agree with you that he was shocked that the prosecutor asked for life? Yes. Would I agree with you that I was shocked that the Court gave him life? Yes. But [appellant] was fully aware that was certainly a possibility. Here, the written admonishments, signed by appellant, reflect a "check" by the "habitual felony offender" paragraph, which stated that the range of punishment for habitual felony offender status is twenty-five years to life. Appellant's signature appears at the end of the written admonishments. Moreover, the record establishes that appellant was advised of the range of punishment and testified that he understood it. On cross-examination, appellant testified that he understood that he was an "HFO" and was "25 to life." Even if we were to assume, without deciding, that the absence of appellant's initials next to the range-of-punishment paragraph somehow rendered the written admonishments defective, the record contains no evidence that appellant was unaware of the consequences of his plea or that he was misled or harmed by any alleged failure by the trial court to properly admonish him. (27) We overrule appellant's first issue. By his second issue, appellant contends he "did not knowingly, voluntarily, and freely plead guilty." Appellant argues his plea was involuntary because he was not admonished by the trial court and did not have effective assistance of counsel. By his third issue, appellant contends his counsel was ineffective because counsel "did not ensure that [appellant] reviewed and signed the range-of-punishment admonishment." We find appellant's arguments to be without merit. At the plea hearing, appellant testified that he was entering his guilty plea "freely and voluntarily" and that he had decided to reject the State's ten-year plea bargain offer. At the motion-for-reconsideration hearing, appellant's trial counsel testified that he advised appellant to take the State's ten-year offer, and was "shocked" when appellant decided to reject the offer. Appellant testified that his trial counsel had advised him that the range of punishment was twenty-five years to life and that he knew a life sentence was a possibility. Appellant testified that he just "didn't really think [he] was going to get a life sentence." Appellant told the trial court he was asking the court for "mercy." A plea is not rendered involuntary simply because a defendant received a greater punishment than he anticipated. (28) As the court of criminal appeals noted in Burnett, It is important to distinguish appellant's factual knowledge (or lack thereof)-- that the applicable range of punishment for his enhanced offense was 5 years-to-life--from his ability to judge the risk that he would actually receive a sentence at the high end of the punishment range. It is the former, appellant's factual knowledge of the punishment range, with which we are concerned. (29) We conclude appellant has failed to meet his burden to demonstrate that his plea was not voluntary. (30) Appellant has also failed to show that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for his counsel's errors, he would have pleaded not guilty and insisted upon going to trial. (31) We overrule appellant's second and third issues. Finally, as a sub-issue, appellant asserts that "[t]he trial court has the discretion to grant a new trial in the interests of justice . . . ." However, appellant provides no argument explaining how the trial court may have abused its discretion in denying his motion for new trial. Accordingly, appellant has waived any challenge to the trial court's denial of his motion for new trial. (32) We affirm the trial court's judgment. LINDA REYNA YAÑEZ, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum opinion delivered and filed this the 19th day of July, 2007. 1. See Tex. Health & Safety Code Ann. § 481.112(a)((d) (Vernon 2003). 2. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2006). 3. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2006); Pena v. State, 132 S.W.3d 663, 665 (Tex. App.-Corpus Christi 2004, no pet.). 4. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2006); Pena, 132 S.W.3d at 665. 5. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2006); Pena, 132 S.W.3d at 665. 6. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2006). 7. Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002). 8. Pena, 132 S.W.3d at 666 (citing Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.-Corpus Christi 2001, no pet.)). 9. Id. 10. Id. 11. Id. 12. Hinkle v. State, 934 S.W.2d 146, 149 (Tex. App.-San Antonio 1996, pet. ref'd); Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). 13. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). 14. Id. at 858. 15. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). 16. Id. 17. Id. 18. Id. 19. Martinez v. State, 109 S.W.3d 800, 801 (Tex. App.-Corpus Christi 2003, pet. ref'd) (citing Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000) (en banc)). 20. Id. at 803. 21. Id. 22. See Young, 8 S.W.3d at 666-67. 23. See Martinez, 109 S.W.3d at 803 (noting that guilty plea waives claim of ineffective assistance where no "direct nexus" between claimed ineffectiveness and the defendant's guilt or innocence). 24. At the hearing on appellant's motion for reconsideration, appellant asked the trial court to (1) place him on probation or (2) impose the ten-year sentence initially offered by the State. Appellant did not seek to withdraw his plea and go to trial. 25. See id. 26. The State had offered appellant ten years' imprisonment, with an agreement to drop the enhancement paragraphs. It is undisputed that appellant rejected the State's offer. 27. Burnett, 88 S.W.3d at 638. 28. Hinkle, 934 S.W.2d at 149; Tovar-Torres, 860 S.W.2d at 178. 29. Burnett, 88 S.W.3d at 639 n.22 (emphasis in original). 30. See Martinez, 981 S.W.2d at 197. 31. See Pena, 132 S.W.3d at 668-69; Ex parte Moody, 991 S.W.2d at 858. 32. See Tex. R. App. P. 38.1(h); In the Matter of A.J.G., 131 S.W.3d 687, 691-92 (Tex. App.-Corpus Christi 2004, pet. denied).