Jose Trevino v. State of Texas--Appeal from 282nd District Court of Dallas County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-00-00147-CR

Case Date: 12/12/2001

Plaintiff: Jose Trevino

Defendant: State of Texas--Appeal from 282nd District Court of Dallas County

Preview:Jose Trevino v. State of Texas--Appeal from 282nd District Court of Dallas County
IN THE TENTH COURT OF APPEALS

Nos. 10-00-146-CR 10-00-147-CR

JOSE ANTONIO TREVINO, Appellant v.

THE STATE OF TEXAS, Appellee

From the 282nd District Court Dallas County, Texas Trial Court Nos. F99-24119-LS and F99-24125-LS OPINION Following two pleas of guilty taken by a Dallas County magistrate, appellant Jose Antonio Trevino was convicted of the offenses of aggravated robbery and burglary of a habitation. Tex. Pen. Code Ann. 29.03 (Vernon 1994); Tex. Pen. Code Ann. 30.02 (Vernon 1994). Punishment was assessed by the district court at forty years confinement for the aggravated robbery offense and ten years confinement for the burglary offense. Appellant appeals, alleging in three points that (1) the magistrate who took the pleas did so without proper authorization; (2) the trial court erred in permitting the State to introduce evidence of extraneous offenses and bad acts at sentencing; (3) appellant s pleas were not voluntary; (4) appellant s jury waivers were not voluntary; (5) trial counsel was ineffective at the plea proceeding; and (6) counsel was ineffective at the sentencing proceeding. We will affirm. Whether These Appeals Are Controlled By Appellate Rule 25.2(b) Before addressing appellant s points on appeal we must first determine whether appellant s pleas of guilty were open (non-negotiated pleas) or plea bargained (negotiated pleas) within the meaning of the special notice provisions of Rule 25.2(b)(3) for pleas where the punishment assessed did not exceed the punishment recommended by the prosecutor and

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agreed to by the defendant. The nature of the pleas is significant because a finding that the appeals were negotiated as to punishment would effectively end our appellate analysis. In its recent opinion in Cooper v. State, No. 1100-99 (Tex. Crim. App. April 4, 2001), the Texas Court of Criminal Appeals held that Appellate Rule 25.2(b)(3) does not authorize an appeal where a general notice of appeal is filed, // if the judgment was the result of a negotiated plea in which the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant. The trial court s written judgments in the instant case contain the word open plea beside the caption terms of plea bargain. Moreover, the docket is stamped open plea under the entry plea 2-8-00, and punishment was not assessed until after a pre-sentence report was prepared. We conclude appellant did not enter pleas of guilt within the meaning of Appellate Rule 25.2(b), because there was no punishment recommended by the prosecutor and agreed to by the defendant. Whether These Appeals Are From Plea Bargain Agreements Within The Meaning Of The Orders of Referral

We now turn to the question of whether appellant s pleas were the result of plea bargain agreements within the meaning of the district court s orders of referral to the magistrate. The Legislature has authorized Dallas County criminal district judges to refer to magistrates, among other duties: negotiated pleas of guilty or nolo contendere, or any matter that the judge considers necessary and proper. See Tex. Gov t Code Ann. 54.306(a) (Vernon Supp. 2000). In point one, appellant contends the magistrate who took his plea was not authorized to do so because the Order of Referral from the 287th District Court in each case referred the causes to the magistrate . . .for the purpose of defendant entering his plea in accordance with the plea bargain agreement entered into by and between the defendant, counsel for defendant, and counsel for the State in this cause. (Emphasis added). Appellant argues that because there was no plea bargain agreement as to punishment in either case, the magistrate was not authorized to accept appellant s non-negotiated, open pleas of guilt. Appellant cites Ex parte Pardun, 727 S.W.2d 131 (Tex. App. Dallas 1987, no pet.), in support of his argument. We do not agree. While Ex parte Pardun did involve a transfer order worded similarly to the order in the instant case, i.e., a transfer for purposes of defendant entering his plea in accordance with the plea bargain agreement, the contested action of the magistrate in that case did not involve a plea agreement; rather it involved the magistrate s decision to hear a habeas challenge filed by Pardun contesting her extradition to the State of Kansas. Id. In other words, the issue in Ex parte Pardun was whether the magistrate there was authorized to consider a habeas challenge in an extradition proceeding when the transfer order merely authorized him to hear her plea of guilty. In the instant appeals, appellant is challenging the authority of the magistrate to accept his pleas of guilty. Appellant contends the pleas were open. The State alleges the pleas were negotiated because the parties agreed, prior to the pleas, to: (1) waive a jury; (2) admit appellant s confessions and stipulations of evidence; (3) enter the pleas before a magistrate; (4) review of a pre-sentence investigations; and (5) assessment of punishment at a sentencing hearing. Appellant argues the pleas were nonnegotiated because there was no plea bargain reached concerning punishment. In order to properly analyze this issue, we believe it necessary to consider appellant s written Request for Referral to Magistrate in addition to the Order of Referral, subsequently entered in each case by the district judge. In his written Request for Transfer, appellant averred that he had entered into a plea bargain with the State and that he requested transfer of the case to a criminal district magistrate of Dallas County by the district judge, so that defendant might enter his plea herein before said Magistrate and receive the punishment and results contemplated by the plea agreement of the parties. (Emphasis added). The terms punishment and results contemplated by the plea agreement presumably implied appellant was requesting something more than transfer for merely punishment only. The trial court granted appellant s requests for transfer in an order which, in pertinent part, stated: This cause is hereby referred to a Criminal District Magistrate of Dallas County, Texas, for the purpose of defendant entering his plea in accordance with the plea bargain agreement entered into by and between the defendant, counsel for defendant and counsel for the State in this cause.

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Rather than mirroring the precise language contained in appellant s requests for referral, [for] punishment and results contemplated by the plea agreement, the trial court used the shorter referral phrase in accordance with the plea bargain agreement. The question before us therefore, is whether this transfer order authorized the magistrate to take appellant s plea where punishment was not negotiated, but where other results of the plea were negotiated. There is no requirement that all plea bargains contain an agreement as to punishment. Scott v. State, 690 S.W.2d 256, 258 (Tex. Crim. App. 1985). Because we agree with the State that aspects of the plea bargain were negotiated, we conclude the district court s order of referral was sufficient to authorize the magistrate to take appellant s plea, regardless of the fact that no plea agreement was ultimately reached on the issue of punishment. // Point one is overruled. In point two, appellant contends he was denied a fair sentencing hearing because evidence of extraneous offenses committed by appellant as a juvenile was considered by the district judge at the punishment hearing. To preserve error in the admission of evidence, the defendant must make a timely objection in the trial court. Johnson v. State, 878 S.W.2d 164 (Tex. Crim. App. 1994); Tex. R. App. P. 33.1. Any error was waived in the instant appeals by appellant s failure to object to the admission of the evidence complained of on appeal. Even had the evidence been met with a proper objection, we would still be constrained to overrule point two. Our law provides that evidence may be offered by the State and the Defendant of an adjudication of delinquency based on a violation of the defendant of a penal law of the grade of: (1) a felony; or (2) a misdemeanor punishable by confinement in jail. Tex. Code Crim. Proc. Ann. art. 37.07, (3)(d). Most of the testimony introduced at the sentencing hearing concerned appellant s delinquency adjudications for the offenses of felony theft, burglary of a motor vehicle, criminal trespass, and his poor performance on juvenile probation. Also, in an apparent attempt to convince the trial court that he had been reformed during his most recent stay in jail, appellant testified on his own behalf at the sentencing hearing, and provided detailed testimony concerning his past criminal history. Appellant s testimony rendered any error in the earlier admission of unadjudicated offenses harmless beyond a reasonable doubt. Point two is overruled. In point three, appellant contends his pleas of guilty were not knowingly and voluntarily entered because of untrue, inconsistent, illegible and untimely admonishments and misrepresentations on the nature of his plea. Appellant s complaints are many. First, appellant contends the record is contradictory and confusing as to whether appellant had an agreement with the State on punishment. Appellant notes that he filed post-trial pro se pleadings that he believed, at the time he entered his pleas, that he had an agreement as to punishment. He also suggests that his trial counsel mislead him into believing that the State had agreed to a five year sentence in return for his plea, and that he was never properly admonished concerning the applicable punishment ranges for his open pleas of guilty. We again disagree. The record reflects that at the time appellant entered his plea, he knew there was no agreement on punishment: THE COURT: Now, sir, this is an open plea in each case which means there is no plea bargain agreement. And as such, if you are found guilty in each of these cases, the Court would have the full range of punishment available to the Court in sentencing you in each case. Do you understand that? [APPELLANT]: Yes, sir. THE COURT: Knowing that, you still wish to proceed with your pleas? [APPELLANT]: Yes, sir. THE COURT: Now, you do have a right to a jury trial in each case. Do you understand that? [APPELLANT]: Yes, sir. THE COURT: Do you give up your right to have a jury in both cases?

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[APPELLANT]: Yes, sir.

In addition, appellant signed written admonitions in each case which set out, in detail, the punishment ranges. Where the record reflects the trial court properly admonished the defendant a prima facie showing is made that the defendant entered a knowing and voluntary plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Appellant s argument on appeal that he was confused and believed he had an agreement with the State for a five year sentence is not supported by the record. Point three is overruled. In point four, appellant contends his jury waiver was defective because it was not made in open court and was signed at a time when he was under the impression that he had entered into a plea agreement with the State concerning his punishment. Appellant executed a written jury waiver which, on its face, stated that appellant was waving his right to trial by jury both in writing, and in open court. Subsequently, as noted above, appellant waived his right to trial in open court, after a second admonishment by the trial court. The record does not support appellant s present assertion that he believed at the time he waived his right to jury trial the State had agreed to a punishment. Point four is overruled. In point five, appellant contends trial counsel was ineffective at the guilty plea hearing. In point six, appellant makes the same argument with respect to counsel s performance at the sentencing hearing. Appellant s specific complaints are: (1) counsel told him he had reached a plea agreement with the prosecutor on punishment, when in fact, he had not; (2) counsel improperly advised him to sign a plea agreement that contained multiple recommendations, a plea for five years confinement and open to the Judge; (3) counsel should have known that the eleven day delay between appellant s signatures on the plea papers and the time of the plea was too long to ensure that his pleas were voluntary; (4) counsel represented to appellant that he would receive probation if he entered an open plea to the court; and (5) counsel failed to object at the sentencing hearing to evidence of prior bad acts by appellant. We apply a two-pronged test to ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, appellant must show that his counsel's performance was deficient; second, appellant must show the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Hernandez v. State, 988 S.W.2d 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. Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Our scrutiny of counsel's performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The second prong of Strickland requires that the reviewing court grant appellant relief only in instances where the court concludes 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 whose result is being challenged. Id. at 697, 104 S. Ct. at 2070. Appellant s complaints in the instant appeal address concerns about trial counsel that are not adequately supported by the trial record. For example, nothing in the record supports appellant s contention that trial counsel told him that a plea agreement had been reached as to punishment. Similarly, appellant contends counsel should have objected to the introduction evidence of extraneous offenses at the sentencing hearing; however, no explanation of counsel s strategy, if there was one, is contained in the record. The instant case serves as an example of the Court of Criminal Appeals

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notation in Thompson v. State, 9 S.W.3d 735, 813-14 (Tex. Crim. App. 1998), that in a majority of instances of claimed ineffective assistance the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Appellant s arguments would be better raised in a post-conviction writ of habeas corpus, where a record could be developed. Lacking a sufficient record to consider appellant s fifth and sixth points, those points are overruled. The trial court s judgments and sentences are affirmed.

DAVID L. RICHARDS Justice

Before Chief Justice Davis, Justice Vance, and Justice Richards (Sitting by Assignment) Affirmed Opinion delivered and filed December 12, 2001 Do not publish [CRPM]

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