Cantu v. State, 04-98-00302-CR

• Decision Date: 24 March 1999
• Docket Number: No. 04-98-00302-CR,04-98-00302-CR
• Parties: (Tex.App.-San Antonio 1999) Manuel CANTU, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 712

993 S.W.2d 712 (Tex.App.-San Antonio 1999)

Manuel CANTU, Appellant v. The STATE of Texas, Appellee

No. 04-98-00302-CR

In the Fourth Court of Appeals San Antonio

March 24, 1999

Rehearing Overruled April 26, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

From the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 97-CR-1547, Honorable Raymond Angelini, Judge Presiding¹

Sitting: Phil Hardberger, Chief Justice, Tom Rickhoff, Justice, Alma L. Lopez, Justice

OPINION

Phil Hardberger, Chief Justice

Manuel Cantu appeals his conviction for aggravated sexual assault and sentence of 40 years upon entry of a plea of guilty without a plea bargain to the charge. Cantu complains on appeal that his plea was not voluntary because he was not afforded the effective assistance of counsel.

We affirm.

I.

Cantu engaged in sexual intercourse with C.R., a twelve-year-old girl, in a van parked outside a home while her mother, a prostitute and heroin addict, was inside purchasing heroin. C.R. did not immediately report the incident; rather, she waited until several months later to report it to her father, who was divorced from her mother. Her father filed a police complaint, at which time the police took a statement from Cantu, who was already in prison, regarding the incident. Cantu did not deny engaging in sexual intercourse with the girl, rather, he asserted that the girl "was sold to him" by her mother in exchange for drugs and that she was a willing participant. Cantu was initially represented by Patrick Walker, a court-appointed attorney. Walker had obtained a plea bargain offer of thirteen years (the range of punishment is five years to life). Cantu rejected this offer. Seeking a better plea offer, Cantu replaced Walker with James Oltersdorf, as retained counsel, approximately one month prior to trial.

On the Friday before trial was set for Monday, Oltersdorf presented Cantu with an offer of ten years in exchange for a guilty plea. The offer was set to expire that same Friday afternoon. Oltersdorf testified that he explicitly told Cantu that the offer would expire on Friday. Cantu told Oltersdorf that he (Cantu) needed to talk to his family about the offer. Cantu was unable to contact his family that day, and the offer expired without Cantu accepting the offer.

Cantu went into court on Monday, and, prior to pretrial motions, his attorney informed the court that Cantu had been offered a ten-year plea bargain, but failed to respond in time and that it had expired. Cantu contended at the hearing that he believed he would still be able to accept the plea offer on Monday morning. Pretrial motions were heard, and, as the case was set to be called but after Cantu had the opportunity to consult with his attorney, Cantu entered a guilty plea without a plea bargain to the charge of aggravated sexual assault. Cantu signed written waivers and admonishments. The trial court also orally inquired of Cantu whether the plea was voluntary, and whether he understood that the trial court could enter any sentence it chose, informing him that the State was seeking 40 years. Cantu affirmed that his attorney had explained the situation, and it was his voluntary and knowing decision to enter a guilty plea. After a presentence investigation report was completed, the trial court assessed punishment at 40 years.

II.

In a single point of error, Cantu complains on appeal that he was denied the effective assistance of counsel, such that his plea is rendered involuntary. Specifically, Cantu complains that his retained attorney, Oltersdorf, failed to investigate Cantu's case, violated the attorney-client privilege, violated Rule of Evidence 410 by disclosing the existence of a plea agreement, failed to ascertain the need for or obtain an interpreter for Cantu, and breached his duty of loyalty.

There are no jurisdictional limitations on appealing an open plea of guilty so long as the defendant complies with the general notice provisions of Texas Rule of Appellate Procedure 40(b)(1). Fontenot v. State, 932 S.W.2d 185, 195 (Tex. App. - Fort Worth 1996, no pet.); see TEX. R. APP. PROC. 40(b)(1). By pleading guilty without the benefit of a plea bargain, a defendant waives all nonjurisdictional defects occurring prior to entry of the plea.² Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App.1995); accord Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App.1972). This is a rule of waiver, and not of jurisdiction. Fontenot, 932 S.W.2d at 195. As a waiver must be voluntarily and knowingly made in order to be valid, a defendant may raise on appeal the issue of whether his open plea was voluntarily entered. Fontenot, 932 S.W.2d at 195. Application of the Helms rule is predicated on a guilty plea that is voluntarily and understandingly made. Flowers v. State, 935 S.W.2d 131, 132 (Tex. Crim. App.1996).

A guilty plea shall not be accepted by the trial court unless it appears that the defendant is mentally competent and the plea is free and voluntary. TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon 1989). It is incumbent upon the trial judge to determine whether a guilty plea is voluntarily and knowingly given considering the totality of the circumstances surrounding entry of the plea. Gonzales v. State, 963 S.W.2d 844, 846 (Tex. App. - San Antonio 1998, no pet.). Once the defendant and trial counsel have signed written admonishments, statements, or waivers, and the trial court has established that the defendant has read and understood the admonishments, the judge is not required to orally inquire about the voluntariness of the plea. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App. - Houston 1996, no pet.). Written admonitions signed by the defendant and the court reporter's record showing that the defendant orally represented to the court that he understood the admonitions constitute a prima facie showing that the plea was voluntary. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App.1985); Gonzales, 963 S.W.2d at 846. Upon a prima facie showing of a voluntary plea, the burden shifts to the defendant to show that he entered the plea without knowledge of its consequences. Gonzales, 963 S.W.2d at 846.

On appeal from an open plea, the defendant may only challenge the voluntary and intelligent character of the guilty plea by affirmatively demonstrating that the advice he received from counsel was deficient. Tollett v. Henderson, 411 U.S. 258, 267 (1973). A plea of guilty is not knowingly and voluntarily made if it is made as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App.1980); Gonzales, 963 S.W.2d at 848.

Both the United States and Texas constitutions afford the criminally accused the right to the assistance of counsel. U.S. CONST. amend. XI; TEX. CONST. art. I, 10. In Texas, the same standard applies to challenges made under both the United States constitution and the Texas constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). The criminal defendant's right is not merely to the assistance of counsel, but rather to the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).

The standard for evaluating the effectiveness of counsel enunciated in Strickland is equally applicable to an ineffective assistance claim arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of such 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. Hill, 474 U.S. at 59; Strickland, 466 U.S. at 687; Tollett, 411 U.S. at 266; McMann v. Richardson, 397 U.S. 759, 770-71 (1970); see Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App.1986); Gonzales, 963 S.W.2d at 848.

Our review of counsel's representation on an ineffective assistance challenge is highly deferential to the attorney's professional judgment. Strickland, 466 U.S. at 689. As a reviewing court, "we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation." Id. The defendant bears the burden of overcoming that presumption. Id. The defendant does this by identifying the acts or omissions of counsel that are alleged to constitute ineffective assistance and affirmatively demonstrating that they fall outside the scope of reasonable conduct or professional standards for criminal attorneys. Id. at 690. If the defendant is able to show this error, then the defendant must also affirmatively prove prejudice. Id. at 693.

Cantu must prove that counsel's errors, judged by the totality of the representation, not by isolated instances of error or by only a portion of the proceedings, caused him to plead guilty. Id. at 695; McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992). It is not enough that he show that the errors had some conceivable effect on the outcome of the proceedings. Strickland, 466 U.S. at 693. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Ex parte Cruz, 739 S.W.2d 53, 59 (Tex. Crim. App.1987). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700.

Cantu does not contest that he signed his name to the court's written admonitions and waiver, and that he orally represented to the trial judge at the plea hearing that he was voluntarily pleading guilty after reading and understanding the admonitions and having...