Opinion by Justice Burgess.
In Dallas County,
On appeal, Alonzo contends that (1) the trial court violated his due process and statutory rights by failing to admonish him that his no-contest plea was legally equivalent to a guilty plea; (2) the trial court violated his due process and statutory rights by finding him guilty without a clearly expressed plea accompanied by a strong factual basis; (3) his counsel rendered ineffective assistance by advising him that he might not be deported as a result of his plea of no contest; (4) he was entitled to a hearing on his motion for new trial; and (5) the judgment should be modified to reflect the correct plea.
We modify the judgment to reflect Alonzo's plea of no contest and affirm the trial court's judgment, as modified, because we find that (1) Alonzo failed to demonstrate that he did not fully understand the consequences of his plea; (2) sufficient evidence supports his plea; (3) the advice provided by Alonzo's trial counsel was within the range of competent assistance; and (4) Alonzo was not entitled to a hearing on his motion for new trial.
In his first point of error, Alonzo contends that his plea was involuntary because the trial court accepted it without admonishing him that a no-contest plea is generally the legal equivalent of a guilty plea.
A plea of nolo contendere or no contest has the same legal effect as a plea of guilty except that such plea may not be used as an admission in any civil suit. TEX.CODE CRIM. PROC. ANN. art. 27.02(5) (West 2006). Yet, a trial court is not required to admonish the defendant that a plea of no contest has the same legal effect as a plea of guilty. See TEX.CODE CRIM. PROC. ANN. art. 26.13 (West Supp.2014) (identifying admonishments that must be given to defendants pleading nolo contendere). When, as here, the record indicates that the trial court properly admonished a defendant, a prima facie showing exists that the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998) (per curiam). Although a defendant may still raise the claim that his plea was involuntary, he bears the burden of "demonstrat[ing] that he did not fully understand the consequences of his plea such that he suffered harm." Id. (citing Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Crim.App. 1985)).
Prior to entering his plea, the trial court explained to Alonzo that he was charged with continuous sexual abuse of a child and that the applicable punishment range was twenty-five years to life in prison without the possibility of parole. However, in exchange for Alonzo's agreement to waive his right to a jury trial and enter a plea of no contest, the State agreed to reduce the charge to aggravated sexual assault of a child under fourteen years of age, which has a punishment range of five to ninety-nine years or life in prison. The trial court informed Alonzo that by virtue of this agreement, he would become eligible for parole after serving half of his sentence.
The trial court further explained to Alonzo that:
The trial court also reminded Alonzo that there was no agreement regarding "what will happen at the end of the trial." Alonzo said he understood the terms of the agreement, and he entered a plea of no contest. After Alonzo entered his plea, the court stated that it would "proceed on the plea of No Contest." The court continued, "There is no admission of guilt. The State has the full burden of proof beyond a reasonable doubt."
On direct examination of Alonzo by his trial counsel, the following exchange occurred:
Based on the record, Alonzo failed to demonstrate that he did not fully understand the consequences of his plea. See Martinez, 981 S.W.2d at 197. Accordingly, we overrule this point of error.
In his second point of error, Alonzo argues that the trial court erred in accepting his plea because it was not supported by a strong factual basis.
"When a defendant waives his right to a jury trial and enters a no contest plea on a non-capital offense, the proceeding is no longer bifurcated with separate guilt-innocence and punishment phases." Rohr v. State, No. 08-12-00219-CR, 2014 WL 4438828, at *1 (Tex.App.-El Paso Sept. 10, 2014, no pet.) (citing Gomez v. State, 399 S.W.3d 604, 606 (Tex.App.-Dallas 2013, pet. ref'd)); Saldana v. State, 150 S.W.3d 486, 489 (Tex.App.-Austin 2004, no pet.). "The evidence is admitted at the unitary proceeding both to substantiate the defendant's plea and to allow the trial court to determine an appropriate sentence." Rohr, 2014 WL 4438828, at *1.
"The entry of a valid guilty plea has the effect of admitting all material facts alleged in the formal criminal charge." Id. (citing Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App.1986); McGill v. State, 200 S.W.3d 325, 330 (Tex. App.-Dallas 2006, no pet.)). "With one exception not applicable here, a plea of nolo contendere or `no contest' has the same legal effect as a guilty plea." Id. (citing TEX.CODE CRIM. PROC. ANN. art. 27.02(5) (West 2006)).
Nevertheless, Article 1.15 of the Texas Code of Criminal Procedure permits the court to render a conviction only after the admission of sufficient evidence establishing a defendant's guilt, even if he has entered a plea of guilty or no contest. TEX.CODE CRIM. PROC. ANN. art. 1.15 (West 2005); Menefee v. State, 287 S.W.3d 9, 13 (Tex.Crim.App.2009). However, "[when a defendant waives his right to a jury trial and enters a plea of guilty or no contest, the State is not required to prove the defendant's guilt beyond a reasonable doubt." Rohr, 2014 WL 4438828, at *2 (citing McGill, 200 S.W.3d at 330); see Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App.1988) (op. on reh'g). Rather, "Article 1.15 only requires substantiation of the plea." Rohr, 2014 WL 4438828, at *2 (citing Menefee, 287 S.W.3d at 14). "`By its plain terms it requires evidence in addition to, and independent of, the plea itself to establish the defendant's guilt.'" Id. (quoting Menefee, 287 S.W.3d at 18).
We are, therefore, required to determine "whether the evidence embraces each essential element of the offense charged." Id.; see Menefee, 287 S.W.3d at 13; Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App.1996); McGill, 200 S.W.3d at 331. "If the State fails to introduce sufficient evidence under Article 1.15's standard, the trial court is not authorized to convict." Rohr, 2014 WL 4438828, at *2 (citing Menefee, 287 S.W.3d at 14). "A conviction rendered without sufficient evidence to support the no contest or guilty plea constitutes non-constitutional trial error." Id.
The amended indictment alleged that Alonzo intentionally or knowingly committed aggravated sexual assault of J.F., a child under the age of fourteen, by causing his mouth to contact J.F.'s sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B) (West Supp.2014). J.F. testified that when she was nine or ten years old, she and her family moved to a house on Mountain Lake Street, in Dallas County, Texas, where they lived for three years. She testified that Alonzo touched her in a sexual manner on several occasions. Once, while J.F. and Alonzo were in his room, Alonzo touched her chest, pulled down her shorts, put her hand on his penis, and placed his penis between her buttocks.
The incident in question happened one night after J.F. had fallen asleep. J.F. testified that she awoke when someone entered her room, turned on the light, got onto her bed, pulled her shorts and underwear down, spread her legs, and put his tongue "in between" her vagina. According to J.F., she kept her eyes closed the entire time, but J.F.'s sister and Alonzo were the only other people home, and she believed it was Alonzo because she did not think "anyone else would do that." J.F. recalled that this incident occurred while they lived on Mountain Lake Street. Thus, when the charged offense occurred, she was between nine and thirteen years old. The trial court noted that JF "wasn't the best witness" and, by her own admission, J.F. lies, but the court found her testimony credible because there was "no evidence ... that she has ever lied to get somebody in trouble." Based on her testimony, he found sufficient evidence to prove Alonzo guilty of the offense to which he pled no contest.
Here, there is evidence that Alonzo contacted J.F.'s vagina with his mouth at a time when J.F. was under the age of fourteen. The manner in which the act occurred is strong circumstantial evidence that it was done knowingly and/or intentionally. The evidence introduced by the State is sufficient under Article 1.15 to support the trial court's finding of guilty because it substantiates or embraces each essential element of the offense for which Alonzo was being tried.
In his third point of error, Alonzo contends that his trial counsel provided ineffective assistance when he advised Alonzo that he might not be deported if he entered a plea of no contest.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established the standard of review applicable to ineffective assistance of counsel claims. To prevail on such a claim, an appellant must prove by a preponderance of the evidence (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim.App.1999). Strickland's two-pronged test applies to plea agreements. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex.Crim.App. 1987). The voluntariness of a plea agreement depends (1) on whether counsel's advice was within the range of competent representation demanded of attorneys in
In Padilla v. Kentucky, 559 U.S. 356, 360-74, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held that "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel" and that "counsel must inform her client whether his plea carries a risk of deportation." The Court noted that "informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process." Id. at 373, 130 S.Ct. 1473. The Court held that Padilla's counsel, who explicitly told Padilla that he would not have to worry about immigration consequences prior to entry of his guilty plea, rendered constitutionally ineffective assistance. The Court then remanded the case to give Padilla the opportunity to demonstrate prejudice under Strickland; that is, whether a reasonable probability existed that, but for counsel's deficient advice, the result of the proceeding would have been different. See id. at 374, 130 S.Ct. 1473.
In this case, Alonzo argues that he received ineffective assistance of counsel pursuant to Padilla because his trial counsel's "advice was inadequate concerning mandatory deportation." Padilla is applicable here because the United States Code provides that any resident or temporary alien within the United States that is convicted of an aggravated felony, such as sexual abuse of a minor, "shall, upon the order of the Attorney General, be removed." 8 U.S.C. § 1101(a)(43)(A) (2014); see 8 U.S.C. § 1227(a)(2)(A) (2008). The record, however, does not reflect that Alonzo was unaware of the potential immigration consequences that he faced should he be convicted on his plea of no contest; in fact, it reveals that his counsel and the trial court expressly discussed the matter with him.
Alonzo testified that he was born in Mexico and that he had a green card that was valid until 2016 or 2017. On direct examination, Alonzo's trial counsel questioned him regarding his knowledge of the possible immigration consequences of pleading no contest:
The trial court also admonished Alonzo that he would "in all probability" be deported if his no-contest plea resulted in a conviction or community supervision. Alonzo
Despite failing to use the word "mandatory," as urged by Alonzo on appeal, the language used by his trial counsel and the trial court informed Alonzo that he faced almost certain deportation if convicted. Therefore, Alonzo failed to prove, by a preponderance of the evidence, that his counsel's advice was outside the range of competent representation demanded of attorneys in criminal cases.
Yet, even if the admonishments by Alonzo's trial counsel were deficient, Alonzo still failed to demonstrate that any such deficient performance prejudiced his plea decision. In cases examining ineffective assistance claims arising out of guilty or no contest plea agreements, courts have reviewed four factors to determine whether a defendant was prejudiced by his counsel's actions: "(1) whether there is evidence of the applicant's guilt, (2) whether the applicant had any factual or legal defenses, (3) whether immigration status was his primary concern, and (4) how the plea deal compared to the penalties risked at trial." Ex parte Obi, 446 S.W.3d 590, 597 (Tex. App.-Houston [1st Dist.] 2014, no pet.). With respect to the fourth factor, the appellate court "consider[s] the circumstances of the plea deal compared to the penalties the applicant risked by going to trial" and reviews three additional factors: "(1) evidence concerning the likelihood of success at trial, (2) evidence presented by the applicant that some other plea deal would have helped him avoid negative immigration consequences, and (3) evidence presented by the applicant regarding the likelihood of obtaining probation if convicted at trial." Id. at 599.
In the present case, as discussed in our analysis of the previous point of error, the State introduced sufficient evidence for the trial court to find Alonzo guilty. This factor weighs against a finding of prejudice.
Alonzo's counsel believes that the State would have had difficulty proving beyond a reasonable doubt the original charge of continuous sexual abuse because the evidence of multiple sexual acts was dependent upon the testimony of J.F., her mother, and therapist. The trial court recognized that J.F. had lied in the past and noted that she "wasn't the best witness." In a family law proceeding, J.F.'s mother denied that any abuse had occurred. J.F.'s therapist was given immunity in exchange for her testimony because she failed to report J.F.'s allegations of abuse. Attacking the witnesses' credibility would have been Alonzo's primary defensive strategy had the case proceeded to trial on guilt or innocence. This factor weighs in favor of a finding of prejudice.
Alonzo submitted an affidavit to the trial court in support of his motion for new trial. Alonzo's affidavit makes no mention of his immigration status. `"[F]ailure to express concerns about immigration consequences after receiving repeated warnings'" weighs against a finding of prejudice. Id. at 598 (quoting Ex parte Murillo, 389 S.W.3d 922, 930 (Tex.App.-Houston [14th Dist.] 2013, no pet.).
Alonzo was originally charged with continuous sexual abuse, a first degree felony, with a punishment range of twenty-five to ninety-nine years confinement, or life, and
In this case, the evidence supports the conclusion that Alonzo's primary concern was avoiding the possibility of having to serve a long, mandatory jail sentence without the possibility of parole. The plea deal allowed Alonzo to avoid that possibility, to receive a much lighter sentence or deferred adjudication, and to be eligible for parole after serving one-half of any prison sentence he received. Alonzo faced presumptively mandatory deportation either way. See Enyong, 369 S.W.3d at 600-02. Therefore, we conclude that even if the immigration admonishments of Alonzo's trial counsel were deficient, the factors discussed above weigh against a finding that Alonzo was prejudiced in any way by counsel's performance.
In his fourth point of error, Alonzo argues that the trial court erred by denying him a hearing on his amended motion for new trial. Specifically, he contends that he was entitled to a hearing "to develop his claim that he would have gone to trial before a jury but for trial counsel providing insufficient information about the nature of the proceedings and the strength of the defense."
"The purposes of a new trial hearing are (1) to determine whether the case should be retried or (2) to complete the record for presenting issues on appeal." Hobbs v. State, 298 S.W.3d 193, 199 (Tex.Crim.App.2009). Such a hearing is not an absolute right. Id. A hearing on a motion for new trial is mandatory only when: (1) it is requested; (2) the matters raised in the motion and accompanying affidavit are not determinable from the record; and (3) the motion and affidavit
We review a trial court's denial of a hearing on a motion for new trial under an abuse of discretion standard and reverse only if the decision was so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Gonzales v. State, 304 S.W.3d 838, 842 (Tex.Crim.App. 2010); Smith, 286 S.W.3d at 339. Absent such an abuse of discretion, an appellate court is not justified in reversing the trial court's judgment. Gonzales, 304 S.W.3d at 842; Smith, 286 S.W.3d at 339.
Appellate review of the denial of a motion for new trial hearing
Smith, 286 S.W.3d at 340.
In his amended motion for new trial, Alonzo argued that his counsel was ineffective because he failed to (a) adequately counsel Alonzo regarding the nature and ramifications of his no contest plea, waiver of a jury trial, and the plea agreement with the State and (b) adequately investigate the case so as to advise Alonzo of the weaknesses in the State's case. To establish entitlement to a hearing on his motion for new trial alleging ineffective assistance of counsel, Alonzo must have alleged sufficient facts from which a trial court could reasonably conclude both that counsel's alleged acts or omissions were not within the range of competence demanded of attorneys in criminal cases and that there was a reasonable probability that, but for counsel's errors, appellant would not have entered his plea and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. 366; Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App.1999); Kober v. State, 988 S.W.2d 230, 232 (Tex.Crim.App. 1999); Morrow, 952 S.W.2d at 536; Rodriguez v. State, 899 S.W.2d 658, 666 (Tex. Crim.App.1995).
An affidavit by Alonzo's trial counsel was also attached to the motion for new trial. The affidavit consists of three and one-half single-spaced pages in which counsel addresses, in detail, each of Alonzo's specific complaints regarding his representation. Counsel found Alonzo to be well-spoken, he indicated that they communicated well, and counsel believed that pleading no contest was beneficial to Alonzo. He provided Alonzo with the relevant information and guidance, and he believed that in waiving his rights and entering his plea, Alonzo acted knowingly, intelligently, and voluntarily.
Counsel's affidavit states his belief that Alonzo understood that if he was convicted of the original charge, he faced a minimum sentence of twenty-five years' confinement without the possibility of parole. Counsel further opines that Alonzo understood that if he accepted the State's plea agreement, he could be found not guilty and that he would be eligible for parole if found guilty of the lesser charge. According to counsel, the plea agreement was "his only chance for [deferred adjudication] community supervision."
Counsel admitted that Alonzo did not consider the court records regarding his divorce from J.F.'s mother in making his decision because counsel was unaware that a divorce decree existed until after the first two days of the trial.
As "the sole fact-finder and judge" of the credibility and weight of each piece of evidence, whether presented "during live testimony" or "in affidavits," the trial court is "within its right to disbelieve" any of the "assertions upon which [the] appellant's claims of ineffective assistance of counsel
In his affidavit and motion, Alonzo contended that, but for counsel's errors, he would not have pled no contest and would have insisted on going to trial. Having heard the testimony, issues, and arguments at trial and being the sole judge of the weight, credibility, and demeanor of Alonzo and his counsel, the court could have reasonably found Alonzo's contention to be improbable because there is strong evidence from the proceedings that Alonzo's primary concern was avoiding the mandatory twenty-five-year prison sentence that accompanies a conviction for continuous sexual abuse of a child. See id. at 459. While Alonzo arguably satisfies the first prong of Strickland, based upon the testimony and affidavits, the trial court could have reasonably determined that Alonzo failed to satisfy the second prong by failing to prove a reasonable probability that counsel's errors prejudiced his plea decision. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Hill, 474 U.S. at 59, 106 S.Ct. 366. Accordingly, the trial court could have reasonably concluded that the affidavits failed to "establish reasonable grounds showing the defendant could potentially be entitled to relief." Hobbs, 298 S.W.3d at 199. Because one reasonable view of the record supports the trial court's decision, the trial court was within its broad discretion to deny Alonzo a hearing. Accordingly, we overrule this point of error. See Riley, 378 S.W.3d at 459; see also Hill, 474 U.S. at 59, 106 S.Ct. 366; Moody, 991 S.W.2d at 857-58; Kober, 988 S.W.2d at 232.
In his fifth and final point of error, Alonzo contends that the judgment should be modified to reflect his plea of "no contest." We agree.
We have the authority to modify a judgment to make the record speak the truth when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992). Our authority to modify incorrect judgments neither depends on the request of any party nor turns on a question of whether a party has or has not objected in the trial court; we may act sua sponte and may have a duty to do so. Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.-Dallas 1991, pet. ref'd); see French, 830 S.W.2d at 609. Rule 43.2 of the Texas Rules of Appellate Procedure also provides direct authority for this Court to modify a trial court's judgment. TEX.R.APP. P. 43.2.
Here, the judgment incorrectly indicates that Alonzo pled "not guilty" to the alleged offense. The record clearly establishes that Alonzo pled no contest. Accordingly,
As modified, we affirm the trial court's judgment.
