Kotara v. State, No. 13-08-00519-CR (Tex. App. 5/21/2009)
| Decision Date | 21 May 2009 |
| Docket Number | No. 13-08-00519-CR.,13-08-00519-CR. |
| Parties | BRIAN ROBERT KOTARA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 319th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices GARZA and VELA.
Appellant, Brian Robert Kotara, was convicted of aggravated sexual assault of a child, a first-degree felony. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B), (e) (Vernon Supp. 2008). The trial court sentenced him to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. By four issues on appeal, Kotara contends that: (1) the trial court erred by failing to ensure that Kotara was present at the hearing on his motions for new trial; (2) he was afforded ineffective assistance of counsel because he "entered a plea of guilty under the misconception that he was likely to receive probation or community supervision"; (3) he was afforded ineffective assistance of counsel because "he was never informed of the State's willingness to enter into a plea bargain for a sentence of ten years"; and (4) "[i]ncreasing the State's recommended punishment from 10 years to 25 years, with no further justification, constituted prosecutorial misconduct." We affirm.
A Nueces County grand jury indicted Kotara on August 16, 2007.1 At a hearing before the trial court on January 14, 2008, Kotara entered an "open" guilty plea to the charged offense, and the trial court certified Kotara's right to appeal. A sentencing hearing was held on June 12, 2008, at which the trial court pronounced Kotara's sentence of twenty-five years' imprisonment.
On July 8, 2008, Kotara's appellate counsel filed a motion for new trial with the trial court, complaining that Kotara's prior trial counsel provided ineffective assistance. The motion specifically alleged that Kotara's trial counsel failed to: (1) call Kotara's therapist or psychologist to present mitigation evidence; (2) negotiate a "specific plea or cap" with the State; (3) advise Kotara that he was not eligible for court-ordered probation; (4) advise Kotara that a jury would have been authorized to grant probation; (5) "exploit the fact that the complainant initially lied about the circumstances of the incident"; and (6) "investigate the sexual promiscuity of the complainant which may have [a]ffected the length of sentence." The July 8, 2008 motion also contended that "a 25 year sentence for a first time offense of fondling a sexually active teenager was unconscionable and excessive."
On July 11, 2008, Kotara's appellate counsel filed an additional motion entitled "Motion for New Trial/Motion for Rehearing." This second motion noted that, at the sentencing hearing on January 12, 2008, "some evidence was entered regarding a collateral felony sexual assault [charge against Kotara] that was pending in Karnes County," and that "[n]ew evidence has just been obtained consisting of an order formally dismissing" that charge.
A hearing was held on Kotara's motions for new trial on August 25, 2008. At the hearing, the State's attorney noted that the trial court had signed a bench warrant summoning Kotara to be present at that time, but that the bench warrant was not executed and Kotara was not present.2 Nevertheless, Kotara's appellate attorney, who represented Kotara at the hearing, indicated that he was willing to proceed despite his client's absence because August 25, 2008 was the seventy-fifth day following the imposition of Kotara's sentence. See Tex. R. App. P. 21.8(a) ().
The only witness to testify at the August 25, 2008 hearing was Kotara's wife, Jennifer. When asked by Kotara's counsel whether "you were involved with the conversations with the [prior] attorney," Jennifer replied in the affirmative. Jennifer further testified that Kotara's prior attorney did not: (1) talk with Kotara about whether he was eligible for probation; (2) tell Kotara that the judge was not able to order probation; (3) tell Kotara that he was not eligible for probation unless the sentence was ten years or less; (4) tell Kotara that he had the option to go to the jury for punishment and request probation from the jury; or (5) inform Kotara that the State had made an offer for a plea agreement under which Kotara would be sentenced to ten years' imprisonment. The trial court denied the motions for new trial. This appeal followed.
By his first issue, Kotara contends that the trial court "erred in failing to ensure" his presence at the August 25, 2008 hearing on his motions for new trial. Kotara argues that his presence at the hearing was necessary because his testimony "needed to be developed to establish reasons for a lesser sentence and issues of ineffective assistance of counsel."
Article 33.03 of the Texas Code of Criminal Procedure requires that in all prosecutions for felonies, the accused must be personally present at trial, except when the accused voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006); see Adanandus v. State, 866 S.W.2d 210, 217 (Tex. Crim. App. 1993); Hodges v. State, 116 S.W.3d 289, 296 (Tex. App.-Corpus Christi 2003, pet. ref'd). The right is entailed within a defendant's right to confront witnesses against him under the United States and Texas Constitutions. Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985); Hodges, 116 S.W.3d at 296; see U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right extends to a hearing on a motion for new trial. Coons v. State, 758 S.W.2d 330, 339 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd). If we find error under article 33.03, we must determine whether the presence of the appellant bears a reasonably substantial relationship to the opportunity to defend. Hodges, 116 S.W.3d at 296; Bath v. State, 951 S.W.2d 11, 22 (Tex. App.-Corpus Christi 1997, pet. ref'd).
The right to be present until the jury has been selected cannot be waived. Miller, 692 S.W.2d at 91; Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.-Dallas 2000, pet. ref'd).
However, a defendant may waive his right to be present at a motion for new trial. Coons, 758 S.W.2d at 339 (citing Phillips v. State, 163 Tex. Crim. 13, 288 S.W.2d 775 (1956)). Reversal is required only where the defendant desires to be present at the hearing and is denied that right. Id. (citing Jackson v. State, 379 S.W.2d 896 (Tex. Crim. App. 1964); Lacy v. State, 374 S.W.2d 244 (Tex. Crim. App. 1963)).
At the hearing on Kotara's motions for new trial, his appellate counsel stated that he chose to proceed without his client's presence because a postponement of the hearing would have caused the motions for new trial to be overruled by operation of law. See Tex. R. App. P. 21.8(a); State v. Gutierrez, 143 S.W.3d 829, 831 (Tex. App.-Corpus Christi 2004, no pet.). Although the issuance of the bench warrant may be some evidence that Kotara at one point desired to be present at the hearing, the record does not contain any evidence as to why the bench warrant was not executed, why the hearing was scheduled so close to the seventy-five-day deadline, or why Kotara failed to appear at the hearing. Without any such evidence, we cannot say that Kotara "was denied the ability to appear" at the hearing.See Coons, 758 S.W.2d at 339. Accordingly, we find no error under article 33.03. Kotara's first issue is overruled.
Kotara contends by his second issue that his trial counsel was ineffective because Kotara "entered a plea of guilty under the misconception that he was likely to receive probation or community supervision."3 According to Kotara, the lack of effective counsel rendered his guilty plea involuntary.
When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, "the voluntariness of the 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." Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999);Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Once a defendant has pled guilty and attested to the voluntariness of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.-Corpus Christi 1994, pet. ref'd). Generally, a guilty plea is considered voluntary if the defendant was made fully aware of the direct consequences. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) (en banc) (citing Brady v. United States, 397 U.S. 742, 755 (1970)).
Additionally, to support a claim of ineffective assistance of counsel where the complaint is that counsel misunderstood the law regarding community supervision, "more must be apparent from the record than trial counsel's mere mistake." State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991). Instead, there must be evidence that: (1) the defendant was initially eligible to receive probation; (2) counsel's advice to go to the trial judge for sentencing was not given as part of a valid trial strategy; (3) the defendant's decision to have the judge assess punishment was based on his attorney's erroneous advice; and (4) the defendant's decision would have been different if his attorney had correctly informed him of the...
To continue reading
Request your trial