Gutierrez v. State

• Decision Date: 13 December 2001
• Docket Number: No. 13-00-277-CR.,13-00-277-CR.
• Parties: Eloy James GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

65 S.W.3d 362

Eloy James GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-00-277-CR.

Court of Appeals of Texas, Corpus Christi.

December 13, 2001.

Rehearing Overruled January 10, 2002.

Leslie Werner De Soliz, Brown & Associates, Victoria, for Appellant.

Carlos Valdez, Nueces County Dist. Atty., Corpus Christi, for Appellee.

Before the court en banc.

OPINION

VALDEZ, Chief Justice.

Appellant, Eloy James Gutierrez, appeals from the trial court's judgment revoking his community supervision. By five issues, appellant complains of ineffective assistance of counsel and that his plea was involuntary. We reverse the judgment and remand the cause for further proceedings.

On August 15, 1991, appellant pleaded guilty, under a plea agreement to the offense of attempted sexual assault. The trial court sentenced him to ten years in prison and assessed a $750 fine, but suspended the imposition of the sentence, and placed him on probation¹ for ten years. On January 31, 2000, the State filed a motion to revoke his community supervision. The appellant struck a plea agreement with the State, that "in exchange for Defendant's pleas of true, the State agrees to recommend revocation and incarceration" for three years. The trial court revoked his supervision, but refused to follow the recommendation. Instead, the trial court sentenced appellant to ten years in prison.

Appellant asserts in his second issue that he received ineffective assistance of counsel because his attorney failed to request withdrawal of his plea of true after the trial court refused to follow the State's recommendation.

At the heart of the issue in this case is the question: What is the applicability of plea agreements to a motion to revoke community supervision?

In order to answer that question, we must examine whether or not a right that traditionally has been applied to the guilt/innocence phase, i.e., the right to withdraw a plea after a judge refuses a plea agreement, is applicable to a motion to revoke community supervision. The United States Supreme Court in Santobello v. New York, emphasized the importance that plea agreements have in judicial proceedings stating:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (emphasis added).

Such "considerations presuppose fairness in securing agreement between an accused and a prosecutor." Id. at 261, 92 S.Ct. 495. Accordingly, a proceeding in which an accused waives fundamental rights: to a jury trial, to confront one's accusers, to present witnesses in one's defense, to remain silent, and to be convicted by proof beyond all reasonable doubt "is a serious and sobering occasion." Id. at 264, 92 S.Ct. 495 (Douglas, J., concurring). Further, we recently recognized the important role that plea agreements play in our criminal justice system, noting that plea bargains allow "the parties to choose predictability over unpredictability ...." In re Rubio, 55 S.W.3d 238, 242, 2001 Tex.App. LEXIS 5624 at *7 (Corpus Christi 2001, orig. proceeding).

The Supreme Court in Santobello also noted other policy reasons for honoring agreements between the State and the defendant stating:

Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

Santobello, 404 U.S. at 261, 92 S.Ct. 495 (quoting Brady v. United States, 397 U.S. 742, 751-52, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).

We recognize that there is no express statutory command regarding the right to withdraw a plea of true in a motion to revoke. However, in light of the waiver of rights that is involved in the motion to revoke community supervision, and the important and beneficial role that plea bargains play in our justice system, we hold that the right to withdraw a plea of true after the trial court rejects the plea agreement should be applied in a motion to revoke community supervision.

Our holding is not without precedent. In Crawford v. State, the Texas Court of Criminal Appeals held that a substantive right which had previously been applied at the guilt/innocence phase is also applicable to a motion to revoke proceeding. Crawford v. State, 624 S.W.2d 906, 909 (Tex. Crim.App.1981). The Texas Court of Criminal Appeals relied on its previous decision in Mooney v. State, to hold that the trial court improperly and without authority accepted a conditional plea. Id.; (citing Mooney v. State, 615 S.W.2d 776 778 (Tex.Crim.App.1981)). After reaching its ruling, that the trial court had no authority to accept a conditional plea, the court then applied that same analysis to a motion to revoke probation. Id. Reasoning that although "Mooney involved a conviction after a plea of nolo contendere, while this case presents a revocation of probation after a plea of true, we do not find this to be a significant distinction." Id. (applying the holding in Mooney to revocation proceedings). Accordingly, we rely on Crawford, not to apply the voluntariness analysis, but to apply the court of criminal appeals' holding that allows rights that are effective in the trial to also be effective at a proceeding on a motion to revoke community supervision. Id.

The dissent uses the holdings in Harris and Lanum to argue that while the right to withdraw a plea of true is available for defendants in the context of guilty pleas, it is not afforded to defendants in the context of a motion to revoke community supervision. Harris v. State, 505 S.W.2d 576, 578 (Tex.Crim.App.1974); Lanum v. State, 952 S.W.2d 36, 39 (Tex.App.-San Antonio 1997, no pet.). However, both Harris and Lanum are distinguishable on their facts.

In Harris, the appellant argued that the trial court failed to properly admonish him in his revocation of probation proceeding. The Harris court stated: "We hold that admonishments provided for in Article 26.13 do not apply in revocation of probation proceedings." Harris, 505 S.W.2d at 578 (emphasis added). Harris holds that a defendant need not receive article 26.13 admonishments in a motion to revoke; however, Harris does not hold that a defendant has no right to withdraw his plea in a motion to revoke when the trial court does not follow the terms of a plea agreement.

We acknowledge that the admonishments in article 26.13 are not applicable to motions to revoke proceedings; however, the present case does not involve issues of admonishments, but rather involves a defendant's substantive right to withdraw his plea after a trial court refuses to follow a plea agreement.

As for Lanum, that holding does not directly address the issue in this case. In Lanum, "the State made no recommendation as to punishment; the only punishment recommendation made was by Havis, Lanum's probation officer, and he had no authority to bind the State." Lanum v. State, 952 S.W.2d at 40. "Accordingly, there was no plea bargain for the trial court to reject." Id.

We therefore hold, in light of the presupposed fairness in plea agreements between State and defendant, that the right to withdraw a plea of true after a judge has rejected a plea agreement is afforded to defendants in a motion to revoke community supervision.

Having determined that appellant had a right to withdraw his plea, we now address the issue of whether appellant's trial counsel was ineffective for failing to request that appellant be allowed to withdraw his plea of true.

Ineffective Assistance of Counsel

The two-prong test from Strickland states that: first the appellant must show that his counsel's performance was deficient; and second, he must show the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Estes v. State, 985 S.W.2d 684, 685 (Tex.App.-Fort Worth 1999, pet. ref'd). The first component is met by showing appellant's trial counsel made errors so significant he was not functioning as the "counsel" guaranteed by the Sixth Amendment to the United States Constitution. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Having held that appellant has a right to withdraw his plea of true, we further hold that because appellant's trial counsel failed to request the court to withdraw his plea of true, the defendant was deprived of "counsel." Here, the record indicates that the defense counsel made an agreement with the State, presented it to the court, and after the subsequent refusal to follow the recommendation, the judge imposed a ten year sentence, with appellant's counsel taking no further action as to the plea that was refused. As such, "counsel" failed on the most minimal level to either object or inquire as to the judge's refusal to accept the State's recommendation and failed to attempt to withdraw appellant's plea of true after the judge refused to accept the recommendation. Similarly, there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As a...