Soto v. State, No. 13-08-347-CR (Tex. App. 4/23/2009)
| Decision Date | 23 April 2009 |
| Docket Number | No. 13-08-347-CR.,13-08-347-CR. |
| Parties | ISAIAS SOTO, 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, Isaias Soto, was indicted for possession of cocaine in an amount more than four grams but less than 200 grams, a second-degree felony (trial court cause no. 07-CR-3106-G). See Tex. Health & Safety Code Ann. § 481.115(a), (d) (Vernon 2003). Soto entered an "open" plea of guilty to the offense, and the trial court assessed punishment at twenty years' imprisonment, to run concurrent with a two-year sentence in a separate possession-of-cocaine charge, a state jail felony (trial court cause no. 08-CR-521-G). See id. 481.115(a), (b). In four issues, Soto argues that 1) the trial court abused its discretion in sentencing him to twenty years' imprisonment, 2) his plea was involuntary, 3) the twenty-year sentence constituted cruel and unusual punishment, and 4) he received ineffective assistance of counsel. We affirm.
After the trial court admonished Soto, he entered an open plea of guilty to the above-mentioned offenses. With respect to cause number 08-CR-521-G, the prosecutor recommended "two years to serve in the state jail." With respect to cause number 07-CR-3106-G, the prosecutor asked In response, defense counsel stated,
After the trial court assessed a twenty-year sentence in cause number 07-CR-3106-G, defense counsel told the trial court, "I think that the original offer was capped at 15 years." To this, the prosecutor remarked, "Your Honor, we had that before another problem arose." The trial court stated, The trial court, in cause number 07-CR-3106-G, assessed punishment at twenty years' imprisonment to run concurrent with the sentence assessed in the state jail felony, cause number 08-CR-521-G. The trial court, in cause number 08-CR-521-G, assessed punishment at two years' confinement in a state jail facility to run concurrent with the sentence assessed in cause number 07-CR-3106-G.
This appeal involves only Soto's conviction in cause number 07-CR-3106-G.1
In his first issue, Soto argues the trial court abused its discretion in sentencing him to twenty years' imprisonment. A trial court abuses its discretion when it acts without reference to any guiding rules and principles, or if it acts in an arbitrary or capricious manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). A trial court does not abuse its discretion if its ruling is at least within the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001); Montgomery, 810 S.W.2d at 390-91.
In our review of a trial court's determination of the appropriate punishment in any given case, "a great deal of discretion is allowed the sentencing judge." Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Baldridge v. State, 77 S.W.3d 890, 893-94 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). It is "the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal." Jackson, 680 S.W.2d at 814. A trial court will be found to have abused its discretion only if there is no evidence or factual basis for the punishment imposed. Id.; Benjamin v. State, 874 S.W.2d 132, 135 (Tex. App.-Houston [14th Dist.] 1994, no pet.).
Soto pleaded guilty to the offense of possession of cocaine in an amount more than four grams but less than 200 grams, a second-degree felony. See Tex. Health & Safety Code Ann. § 481.115(a), (d). Section 12.33 of the penal code provides that the punishment range for a second-degree felony is imprisonment for a term of not more than twenty years or less than two years, and a fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.33(a), (b) (Vernon 2003). The punishment assessed by the trial court—confinement for twenty years—is within the punishment range established by the Legislature for a person convicted of a second-degree felony. See id.
Soto argues the trial court abused its discretion in three ways: (1) the trial court "disregarded a previously agreed to `cap' on the open plea"; (2) "the trial court sentence[d] [him] to the maximum sentence without allowing [him] to withdraw his plea of guilty"; and (3) "the sentence was unfair because of the method employed by the trial court to determine the punishment." We address each argument separately.
Absent a showing to the contrary, a reviewing court presumes the regularity of both judgments and plea proceedings. Davis v. State, 130 S.W.3d 519, 522 (Tex. App.-Dallas 2004, no pet.); see Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986). The appellant bears the burden to overcome this presumption. Davis, 130 S.W.3d at 522.
Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996). A trial court is free to either accept or reject a plea-bargain agreement. Davis, 130 S.W.3d at 522. Until the court accepts it, a negotiated plea-bargain agreement is not binding on the parties. Ortiz, 933 S.W.2d at 104; Holland v. State, 112 S.W.3d 251, 254-55 (Tex. App.-Austin 2003, no pet.). When expressly approved by the trial court in open court, however, a plea-bargain agreement becomes a binding contractual arrangement between the State and the defendant. Ortiz, 933 S.W.2d at 104; Wright v. State, 158 S.W.3d 590, 593-94 (Tex. App.-San Antonio 2005, pet. ref'd). Under these circumstances, the trial court is bound to carry out the terms of the agreement. Holland, 112 S.W.3d at 255. Thus, an accused is entitled to specific performance of a plea agreement only if the trial court accepts and approves the negotiated plea agreement. Id.; see Ortiz, 933 S.W.2d at 104; Perkins v. Court of Appeals, 738 S.W.2d 276, 283 (Tex. Crim. App. 1987).
Nothing, other than Soto's assertions in his appellate brief, indicates the existence of a "previously agreed to `cap' on the open plea." In this case, the record provides no evidence that a fifteen-year cap on punishment ever became binding, and Soto has cited no authority suggesting that a trial court is bound by prior plea negotiations which did not result in a plea-bargain agreement. Furthermore, the record does not reveal, nor does Soto assert, that the trial court conducted a hearing on any plea agreement or punishment cap pursuant to article 26.13(a)(2). See Tex. Code Crim. Proc. Ann. art 26.13(a)(2) (Vernon 2009).2 No evidence in the record showed the trial court accepted any plea agreement or punishment cap. A plea agreement does not become binding until all necessary parties agree to its terms. Ortiz, 933 S.W.2d at 104; Davis, 130 S.W.3d at 522. Because the record lacks evidence showing the trial court's agreement to any plea bargain or punishment cap, we conclude the fifteen-year punishment cap even if "agreed to," never became binding. Soto has presented no evidence, nor does the record reflect any, that overcomes the presumption of regularity in the judgment and plea proceedings at issue. See Davis, 130 S.W.3d at 522. Accordingly, we resolve this argument adversely to him.
If a trial court rejects a plea-bargain agreement, the defendant's plea is rendered involuntary, and the defendant is entitled to withdraw the guilty plea. Holland, 112 S.W.3d at 255 (citing Zinn v. State, 35 S.W.3d 283, 285 (Tex. App.-Corpus Christi 2000, pet. ref'd)). Nothing, other than Soto's assertions in his appellate brief, indicates that the trial court "proceeded to sentence [him] to the maximum sentence without allowing [him] to withdraw his plea of guilty." Neither Soto nor his defense counsel made any request to withdraw the guilty plea. We find that Soto has presented no evidence, nor does the record reflect any, that overcomes the presumption of regularity in the judgment and plea proceedings at issue. See Davis, 130 S.W.3d at 522.
Soto also argues the trial court violated his right to due process because it arbitrarily refused to consider the entire range of punishment and refused to consider mitigating evidence, imposing a predetermined punishment. See U.S. Const. amends. V, XIV; Tex. Const. art. 1, § 19.
"The Constitutional mandate of due process requires a neutral and detached judicial officer who will consider the full range of punishment and mitigating evidence." Buerger v. State, 60 S.W.3d 358, 363-64 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd); see Gagnon v. Scarpelli, 411 U.S. 778, 786-87 (1973). A trial court denies due process when it arbitrarily refuses to consider the entire punishment range for an offense or it refuses to consider mitigating evidence and imposes a predetermined punishment. Buerger, 60 S.W.3d at 364 (citing McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983)). However, absent evidence to the contrary found within the appellate record, we presume the trial court acted as a neutral and detached officer. Brumit v. State, 206 S.W.3d 639, 645 ...
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