Acosta v. State, 2-03-258-CR.

Citation160 S.W.3d 204
Decision Date03 March 2005
Docket NumberNo. 2-03-258-CR.,2-03-258-CR.
PartiesJulio Alfonso ACOSTA, Appellant, v. The STATE of Texas, State.
CourtSupreme Court of Texas

Sally G. Goodman, Dallas, TX, for Appellant.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Chief Appellate Division, and Michael R. Casillas and Elizabeth Bourland, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for Appellee.

PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.

OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant was indicted for possession of a controlled substance, cocaine, of more than 400 grams with intent to deliver. On January 9, 2003, the State proceeded on the lesser offense of possession of a controlled substance, cocaine, of 200 grams or more, but less than 400 grams, with intent to deliver and Appellant entered an open plea of guilty to the trial court. On May 28, 2003, the trial court conducted a sentencing hearing and sentenced Appellant to twenty-five years' confinement. Appellant filed a motion for new trial arguing his plea was involuntary due to ineffective assistance of counsel and violation of his Eighth Amendment rights. The trial court conducted a hearing and denied Appellant's motion for new trial. In three issues, Appellant argues that: (1) the trial court erred in denying his motion for new trial on the basis that his guilty plea was involuntary due to ineffective assistance of counsel; (2) his sentence violates his Eighth Amendment rights under the United States Constitution because his sentence is grossly disproportionate to the crime and inappropriate towards him; and (3) his sentence violates his Article I, Section 13 rights under the Texas Constitution because the sentence is grossly disproportionate to the crime and inappropriate towards him. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was arrested for attempting to sell a "kilo" of cocaine.1 Testimony showed that Appellant's brother-in-law introduced him to a man named Joe, whom Appellant was told was looking for a drug supplier. Testimony further showed that Appellant obtained the "kilo" of cocaine from a man he knew only as Pekachu. Appellant testified that Pekachu gave him the cocaine and Appellant was supposed to meet him later at a predetermined location to deliver his money. However, Appellant stated that he did not know anything about Pekachu, other than his phone number. Appellant further testified that he went to Joe's apartment after receiving the cocaine from Pekachu, Joe got into his car, exited, and Appellant was blocked in by Hurst police officers and arrested. It was later learned that Joe was a confidential informant. Appellant stated that once in custody he gave a written statement and signed a consent to search his home, where police recovered a stolen gun.

Appellant entered an open plea of guilty to the trial court and was fully admonished orally and in writing. Appellant answered affirmatively that he had an opportunity to discuss his case with his attorney, and he understood the range of punishment, the significance of his judicial confession, and that he was pleading guilty without a plea-bargain agreement. After receiving a presentence investigation report, the trial court proceeded to sentencing on May 28, 2003. At the sentencing hearing, the trial court reminded Appellant of the charge against him and his plea of guilty on January 9, 2003. At the sentencing hearing, Appellant testified that he rejected two plea-bargain agreements of fifteen and eight years because he was hoping the court would give him another chance to be with his family. Appellant's trial counsel asked the trial judge to consider placing Appellant on deferred adjudication or community supervision. The trial court rejected Appellant's request and sentenced him to twenty-five years' confinement.

Appellant filed motions for a new trial on July 2 and July 7, 2003. In his motions, Appellant argued that he received ineffective assistance of counsel, which resulted in an involuntary plea of guilty, and that his sentence violated the Eighth Amendment as cruel and unusual punishment. The trial court conducted a hearing on the motions for new trial on August 1 and August 8, 2003.

HEARING ON MOTION FOR NEW TRIAL

Appellant's trial counsel was the first to testify at the hearing on the motion for new trial. Appellant's trial counsel stated he was retained the day after Appellant's arrest and began meeting with Appellant and soon learned the details of Appellant's arrest and the involvement of the confidential informant. Appellant's trial counsel stated he first considered trying to federalize Appellant's case because Appellant would face a lesser sentence, but that this would be contingent on Appellant being able to provide "substantial assistance" to the government. According to Appellant's trial counsel, Appellant told him not to talk to the federal prosecutor, stating "[t]his case is going to go away." Appellant's trial counsel stated Appellant "refused" to provide additional information and he thought Appellant "was not telling me the whole picture." Appellant's trial counsel also testified that he wanted to investigate Appellant's brother-in-law to determine his connection with Appellant's arrest, but Appellant refused. Appellant's trial counsel recommended that they file a motion for an examining trial, but again Appellant refused. Appellant's trial counsel stated he believed Appellant refused the examining trial because he feared that his bond might have been set higher. Appellant's trial counsel stated that he also inquired into the details surrounding Appellant's written statement and the consent to search, and although Appellant stated he was scared, he never disclosed that he was lied to or threatened by police.

Appellant's trial counsel stated that while representing Appellant, the State offered a plea bargain of fifteen years, but Appellant rejected the offer. Appellant's trial counsel testified that he spoke again with the prosecutor and was able to get the State to reoffer a plea of fifteen years, however Appellant again rejected the offer.

Appellant's trial counsel testified that he filed a motion to suppress and a hearing was set for January 9, 2003. Appellant's trial counsel testified that the State did not provide him with the full name of the informant until he arrived for the hearing on the motion to suppress and he was unsure whether the prosecutor informed him that they did not know his whereabouts, but he speculated with Appellant that the State might not be able to locate the informant. Appellant's trial counsel said he recommended that they seek a continuance so he could fully investigate the informant before proceeding on the motion to suppress. Appellant's trial counsel testified he did not feel that he would be acting in his client's best interests if he proceeded on the motion to suppress without first investigating the informant. However, Appellant's trial counsel stated he never told Appellant not to pursue the motion to suppress; rather Appellant's trial counsel stated Appellant told him he did not want to pursue a continuance, but instead wanted to enter an open plea. Appellant's trial counsel stated he explained the dangers of entering an open plea of guilty and further explained that he believed Appellant would be facing a sentence between twenty-five and thirty-five years if he entered an open plea, especially since he learned that the trial judge tended to render harsh sentences.

Additionally, Appellant's trial counsel testified he negotiated with the prosecutor and was able to obtain a plea offer of eight years if Appellant accepted that day. Appellant's trial counsel testified that he believed this was a good offer and he encouraged Appellant to take it. Appellant's trial counsel testified that Appellant refused and Appellant told him "I don't want to do a day in jail." Appellant's trial counsel testified that ultimately Appellant went against his advice and entered an open plea of guilty.

Appellant's trial counsel stated that he believed that throughout his representation Appellant was relying on the "spiritual advice" of his godfather in making all of his decisions. Appellant's trial counsel stated that Appellant seemed to believe that the charges were just going to go away. Appellant's trial counsel also related the events of an encounter he had with Appellant and his godfather. He stated that at one of the proceedings, Appellant and his godfather asked him if he thought the judge took his gavel with him at the end of the day. Appellant's trial counsel testified that he thought that Appellant's godfather was going to take the gavel and use it in some sort of black magic ritual. Appellant's trial counsel stated he told both Appellant and his godfather not to do anything illegal and further told Appellant to keep his godfather away from him.

Appellant's trial counsel testified that he discussed every available option with Appellant regarding his case, including trying the case before the judge or a jury, pleading guilty to a jury and having the jury assess punishment, and entering an open plea. Appellant's trial counsel stated that Appellant told him he did not want to go before a jury at any point. Additionally, Appellant's trial counsel testified that the State was only willing to reduce the offense if Appellant entered a plea. Appellant's trial counsel stated that if Appellant entered an open plea to the lesser offense, the trial judge could consider community supervision or deferred adjudication, but he did tell Appellant that he wasn't necessarily going to get either.

Appellant's trial counsel testified that he explained the plea papers to Appellant and Appellant indicated that he understood the paperwork. Furthermore, Appellant's trial counsel "absolutely" believed Appellant made his own decision freely and voluntarily to enter an open plea of...

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