Cardenas v. State

• Decision Date: 24 February 1998
• Docket Number: No. 06-97-00036-CR,06-97-00036-CR
• Citation: 960 S.W.2d 941
• Parties: Samuel Junior CARDENAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 941

960 S.W.2d 941

Samuel Junior CARDENAS, Appellant, v. The STATE of Texas, Appellee.

No. 06-97-00036-CR.

Court of Appeals of Texas Texarkana.

Submitted Jan. 21, 1998.

Decided Jan. 22, 1998.

Rehearing Overruled Feb. 24, 1998.

Glenn J. Youngblood, Houston, for appellant.

Carmen Castillo Mitchell, Asst. Dist. Atty., Houston, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

GRANT, Justice.

Samuel Cardenas appeals from his conviction on his plea of nolo contendere for the offense of indecency with a child. He contends on appeal that his plea was involuntary because his counsel had informed him that the trial judge could place him on probation, and that he received ineffective assistance of counsel. The trial judge set punishment at the maximum twenty years' imprisonment.

Cardenas contends that he pleaded nolo contendere only because his trial attorney informed him that the trial judge could probate his sentence and because he believed that he could withdraw his plea and go to trial if the judge did not place him on probation. This was the sole contention raised in his motion for new trial, and a hearing on the subject was conducted. The trial judge concluded that his plea was voluntary and overruled his motion.

A plea is not involuntary simply because the punishment exceeds what the defendant expected, even if the expectation is raised by the defendant's attorney. Galvan v. State, 525 S.W.2d 24, 26 (Tex.Crim.App.1975); Hinkle v. State, 934 S.W.2d 146, 149 (Tex.App.--San Antonio 1996, pet. ref'd). However, a guilty or nolo contendere plea will not support a conviction where that plea is motivated by significant misinformation conveyed by defense counsel. Ex parte Kelly, 676 S.W.2d 132, 134-35 (Tex.Crim.App.1984); Shepherd v. State, 673 S.W.2d 263, 266 (Tex.App.--Houston [1st Dist.] 1984, no pet.). A plea of guilty based upon such misinformation is involuntary. Rivera v. State, 952 S.W.2d 34 (Tex.App.--San Antonio 1997, no pet.) (citing Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.--Houston [1st Dist.] 1996, pet. ref'd)); Flowers v. State, 951 S.W.2d 883 (Tex.App.--San Antonio 1997, no pet.). We must therefore determine whether the record supports the contention that the appellant's plea was, in fact, induced by significant misinformation. See Russell v. State, 711 S.W.2d 114, 116 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd).

In the present case, Cardenas personally and expressly waived in writing the making of a record of the plea. ¹ Not only has no reporter's record been prepared from the plea hearing, but none can be prepared. We thus have no record to reveal what occurred at the plea hearing. At the hearing on the motion for new trial, Cardenas stated that he pleaded nolo contendere only because his attorney informed him, and he believed, that the court could probate his sentence and because he believed he could withdraw his plea and go to trial if the court failed to give him probation.

The State argues that appellant has waived error because he has not brought forward the statement of facts from the guilty plea hearing, citing Rules 50(d) and 53(k) of the Rules of Appellate Procedure. We do not agree that the failure to provide a reporter's record from the guilty plea waives his contention that his plea was involuntary because of error made by his attorney before the hearing. However, there is a presumption of regularity of the judgment and the proceedings, and the burden is on the appellant to overcome this presumption. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex.Crim.App.1986); Hernandez v. State, 885 S.W.2d 597, 601 (Tex.App.--El Paso 1994, no pet.). This presumption will prevail unless the appellant makes an affirmative showing to overcome the presumption. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1984) (op. on reh'g). In the present case, documents contained within the clerk's record show that the trial court properly admonished the defendant and thus presents a prima facie showing that the nolo contendere plea was knowing and voluntary. The burden then shifts to the defendant to establish that he did not understand the consequences of his plea. Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex.App.--Dallas 1993, no pet.).

The five-page form document that reflects the waiver of a record, as well as a number of other waivers and statements, reflects his complete understanding of the proceeding and all of the possible results of his actions. He also waived his right to oral admonishments by the court, which does raise the question of just what actually occurred at the plea hearing other than the taking of the plea itself. ²

The initial question in this case, however, is whether the lack of a record of the plea proceeding impacts his claim that counsel misinformed him about the availability of probation. Cardenas contends that the trial court erred by failing to grant him a new trial based upon his claim of ineffective assistance of counsel. He bases this claim upon three particular instances of claimed error by trial counsel. First, he states that counsel advised him that he would get probation if he entered a plea and asked for a presentence investigation; second, counsel led him to believe that if he did not get probation he could then withdraw his plea and proceed to trial; and third, he did not understand the consequences of his plea.

The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). This particular claim does not require the hearing from the guilty plea, and the State has not suggested that anything occurred at the hearing that would impact his claim-that outside the hearing his counsel misinformed him about the result of his plea in connection with probation, an issue not covered by the written admonishments. This is clearly significant misinformation.

The standard of testing claims of ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). In Strickland, the Supreme Court admonished that a claimant must prove that counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on having produced a just result." 466 U.S. at 686, 104 S.Ct. at 2064.

As applied to a guilty plea, appellant must prove: (1) that his counsel's representation was not within the range of competence demanded of attorneys in criminal cases and (2) that 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 v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Crim.App.1997).

The review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The burden is on appellant to overcome that presumption by identifying the acts or omissions of counsel that are alleged to have constituted the ineffective assistance and then affirmatively prove that they fall below the professional norm for reasonableness. Then, appellant must prove that counsel's errors, judged by the totality of the representation, denied him a fair trial. Merely showing that they had some conceivable effect on the proceedings is inadequate. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067-68; McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996).

In this case, all of the contentions raised by Cardenas revolve around the question of whether his attorney misled him about the availability of probation for the offense and whether he could go to trial if he did not receive a probated sentence from the trial judge.

At the hearing on his motion for new trial, as previously stated, Cardenas testified that counsel informed him that he would get probation if he pleaded nolo contendere and asked for a presentence investigation, and that if the judge did not give him probation he could withdraw his plea and proceed to trial. The State did not shake his testimony on cross-examination. The only evidence offered by the State to rebut his testimony consists of an affidavit by trial counsel that reads as follows:

My name is Gerald Fry and I am over 18 years of age and competent to make this affidavit. I was the trial attorney for Samuel Cardenas in Cause Number 9415665 and have reviewed the Affidavit in Support of Motion for New Trial. I did not promise or represent to Samuel Cardenas that he would receive probation if he entered a plea of no contest and had the Court perform a pre-sentence investigation.

As the trial judge is the fact finder in a hearing on a motion for new trial, and since proof may be offered by affidavit in such a hearing, the affidavit by counsel is sufficient to permit the trial court to weigh the conflicting evidence and reach a conclusion in favor of the State. TEX.R.APP. P. 21.7. Cardenas could not have received probation, and his lawyer's request to the judge for probation supports Cardenas's contention that his lawyer had misinformed him on this matter. However, counsel swore that he did not promise Cardenas that he would receive probation but did not address the question of whether he told Cardenas that he could receive probation.

Further, this evidence does not stand alone. The record of the sentencing hearing shows that counsel affirmatively asked the trial judge to place Cardenas on probation, despite the fact that the trial judge is statutorily restricted...