COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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GILBERT GUTIERREZ, ) No. 08-01-00218-CR
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Appellant, ) Appeal from
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v. ) 65th District Court
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THE STATE OF TEXAS, ) of El Paso County, Texas
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Appellee. ) (TC# 64749)
O P I N I O N
In 1992, Gilbert Gutierrez was charged with two counts of aggravated assault against his former wife, Jeanette Flores, and her boyfriend, Manuel Quinones. He was also charged with burglary of a vehicle. Appellant pled not guilty and proceeded to a jury trial. The trial court granted an instructed verdict as to the burglary charge and the underlying facts of that portion of the proceedings are irrelevant to this appeal. After both sides rested, Appellant entered an open plea of guilt to each of the aggravated assault charges. The judge sentenced him to twenty-five years= confinement in the Texas Department of Corrections to be served concurrently.
In 1999, Appellant filed a writ of habeas corpus claiming that his pleas were involuntary and that trial counsel had not advised him of the right to appeal. The Court of Criminal Appeals has granted an out-of-time appeal and Appellant now complains that the guilty pleas were involuntary due to the ineffective assistance of counsel. We affirm.
FACTUAL SUMMARY
Because the sufficiency of the evidence is not in dispute, we provide only a brief narrative to place the relationship of the parties in context. Jeanette Flores and Manuel Quinones were living together with Flores=s daughter in February 1992. At approximately 6 p.m. on the evening of February 6, Appellant picked Flores up at her house and she accompanied him to a Motel 6. Flores told Appellant that she still loved him and the couple engaged in consensual sexual intercourse. At some point, Appellant shot up with heroin and his behavior became aggressive. He threw $40 toward Flores and told her to take a cab home. Around 1 a.m., Appellant called Flores at her home, asked her where his money was, and claimed she had stolen it. Flores hung up on him. Shortly thereafter, Appellant appeared at her door. When Flores threatened to call the police, Appellant left. Quinones, Flores, her daughter, and her niece were all asleep in the house when they were awakened later that night when Appellant returned and began kicking the door. Flores refused to let him in and her daughter called the police. Appellant then broke in through the window. According to Flores, Appellant had a screwdriver and chased her into the bedroom. He then attacked Quinones with the screwdriver, striking him below the neck and in the leg. Flores jumped on Appellant=s back and Quinones fled naked from the room. Appellant then grabbed Flores by the hair and dragged her through the hallway. He tried to stab her in the chest, but Flores was able to grab the screwdriver before she was seriously harmed. She suffered only a bruise and a slight cut on her chest. Appellant then grabbed Flores by the hair and dragged her to his car. When the police arrived, Flores was able to escape; Appellant got out of the car as the police officers approached and began walking away. He was ultimately apprehended on foot and arrested. When he was placed in the back of the police car, he tried to kick out the back window. The screwdriver was found by the police inside the house.
Quinones did not testify because he was incarcerated in the Texas Department of Corrections at the time of the trial. However, he signed an affidavit rebutting Flores=s version of the events. Quinones claimed that he had provided false information as part of a scheme fabricated by Flores because she was upset with Appellant. He went along with the scheme because Flores had threatened to testify against him with regard to other criminal charges. Quinones stated that the screwdriver was already in the house when Appellant broke in; that Appellant had not used the screwdriver; that Appellant had not stabbed him; that he (Quinones) had actually used the screwdriver that day to fix some chairs in the house; and that the injury he received to his chest was self-inflicted while he was working at his parents= house. As we have indicated, Appellant did not pursue a direct appeal from his convictions.
On March 31, 1999, Appellant filed a writ of habeas corpus. During an evidentiary hearing, he contended that he had been promised by both his attorney and the judge that he would only serve two years, Aa month for every year.@ He pled guilty because he was promised that he would be confined to jail for only two years.
VOLUNTARINESS OF THE PLEA
The constitution requires a guilty plea to be made knowingly and voluntarily. See Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Elliott v. State, 874 S.W.2d 238, 239 (Tex.App.--El Paso 1994, no pet.). Texas law ensures this mandate is met through the enforcement of Article 26.13 of the Texas Code of Criminal Procedure. See Meyers v. State, 623 S.W.2d 397, 402 (Tex.Crim.App. 1981); Elliott, 874 S.W.2d at 239. The purpose of Article 26.13 is to ensure that an individual who pleads guilty comprehends the charges against him and the consequences of his plea. Basham v. State, 608 S.W.2d 677, 678 (Tex.Crim.App. 1980); Singleton v. State, 986 S.W.2d 645, 649 (Tex.App.--El Paso 1998, pet. ref=d). This provision requires a trial court to admonish a criminal defendant of certain facts and rights prior to accepting a plea of guilty. Tex.Code Crim.Proc.Ann. art. 26.13 (Vernon 1989 & Vernon Supp. 2002). A trial judge need only substantially comply with dictates of Article 26.13(c). Estrada v. State, 981 S.W.2d 68, 70 (Tex.App.--San Antonio 1998, pet. ref=d). There is no strict formula to follow or set of questions to ask in achieving substantial compliance with the statute. Singleton, 986 S.W.2d at 650. Article 26.13(d) allows the admonitions to be made either orally or in writing. Blanco v. State, 771 S.W.2d 598, 599 (Tex.App.-‑Corpus Christ 1989, no pet.). If the admonitions are made in writing, both the defendant and defense counsel must sign a statement indicating the defendant understands the admonitions and is aware of the consequences of the plea. Tex.Code Crim.Proc.Ann. art. 26.13(d); Meraz v. State, 950 S.W.2d 739, 742 (Tex.App.-‑El Paso 1997, no pet.).
When a defendant challenges the voluntariness of a plea as a result of ineffective assistance, our analysis 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 upon a trial on the merits. Ex parte Moody, 991 S.W.2d 856, 857‑58 (Tex.Crim.App. 1999), citing Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997); Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). Like other types of ineffective assistance claims, Appellant has the burden to demonstrate that counsel=s performance fell below a reasonable standard of competence and that Appellant would have, with reasonable probability, pled not guilty and insisted on a trial had he been properly advised. See id. When the record reveals that the trial court properly admonished the defendant regarding the consequences of his plea, the record presents a prima facie showing the defendant entered a knowing and voluntary plea. Ybarra v. State, 960 S.W.2d 742, 745 (Tex.App.--Dallas 1997, no pet.), citing Harris v. State, 887 S.W.2d 482, 484 (Tex.App.-‑Dallas 1994, no pet.). The burden then shifts to the defendant to show the plea was not voluntary. Id.
THE ADMONISHMENTS AND PLEA PAPERS
Appellant contends that he was persuaded by his trial lawyer to change his plea to guilty between the time the jury began its deliberations and the time the jury returned. He claims that he changed his mind because counsel told him that Athey@ were offering him twenty-five years with a recommendation to do two years and that he=d Abetter take the time.@ When asked whether anyone else promised he would get a two-year sentence, he replied:
The Judge told me I would do a month for every year. His quote, unquote, was you=ll do about a month for every year.
However, when asked to read excerpts of his trial testimony, Appellant acknowledged that the record was silent as to any mention that he would serve one month for every year of the sentence imposed. We reiterate that the pleas at issue were non-negotiated. At the plea hearing, the trial court advised Appellant that he had been charged with two counts aggravated assault and that the State had alleged two prior felony convictions. The following colloquy occurred:
THE COURT: So, you understand that each of these cases then, if I were to find you guilty, sir, that I could confine you in case number 64749 and also in 64750 to the custody of the Texas Department of Corrections for as long as ninety-nine years and certainly not less than twenty-five years. Do you understand that?
APPELLANT: Yes, sir.
THE COURT: And I can do the same in this other cause number. Now, you do have the right to enter pleas of not guilty to these charges.
APPELLANT: Yes, sir.
THE COURT: Oh, of course, the sentences -- they don=t necessarily have to be running together, at the same time. I mean concurrently. Since they are separate indictments, they can be stacked. You finish serving the time on one and then you begin serving the time on the other. You understand that?
APPELLANT: Yes, sir.
THE COURT: Now, you do have the right to enter pleas of not guilty. If you enter pleas of not guilty, as you have initially, you are entitled to a trial by a jury.
APPELLANT: Yes, sir.
THE COURT: And, of course, the State has to prove that you are guilty beyond a reasonable doubt. They will bring in their witnesses. They will be testifying in your presence as has happened before the case was withdrawn from the jury. You have the right to cross-examine those witnesses, ask them questions. You can subpoena witnesses to come in and testify for you.
You, sir, may remain silent. You don=t have to say anything in your defense. But if you want to, you also can take the stand and testify in your own behalf and during the course of the trial you have the right to be represented by an attorney as you are now by [counsel]. Do you understand, sir?
APPELLANT: Yes, sir.
THE COURT: All right. However, if you plead guilty, then by pleading guilty, you admit the allegations in the indictments and you lose the rights that I just mentioned to you. The only right that you will keep is the right to be represented by an attorney. Do you understand that?
APPELLANT: Yes, sir.
THE COURT: Okay. So, knowing this then, Mr. Gutierrez, I=m going to ask you, how do you plead to case number 64749? Guilty or not guilty?
APPELLANT: Guilty.
THE COURT: And do you concur with that plea entered by your client?
DEFENSE COUNSEL: I do, Your Honor.
THE COURT: In case number 64750, how do you plead? Guilty or not guilty?
APPELLANT: Guilty.
THE COURT: Now, raise your right hand, Mr. Gutierrez.
(Appellant sworn by the Court.)
THE COURT: Mr. Gutierrez, are you pleading guilty because you are guilty and for no other reason as to both indictments?
APPELLANT: Yes, sir.
THE COURT: Has anybody threatened you or forced you in any way to enter these pleas of guilty?
APPELLANT: No, sir.
THE COURT: Has anybody promised you if you plead guilty I would be very lenient or grant you a pardon in the future --
APPELLANT: No, sir.
THE COURT: -- or anything of that nature? During the preparation of this case, [counsel], any reservations as to the mental competency of your client?
DEFENSE COUNSEL: None whatsoever, Your Honor.
THE COURT: And are you an American citizen?
APPELLANT: Yes, sir.
THE COURT: I ask you, because if you were not, I would have to advise you of additional rights and consequences that may attach to your plea. You understand that?
APPELLANT: Yes, sir.
THE COURT: Well, the Court will go ahead and accept your plea, finding that you are pleading guilty because you are guilty to case number 64749 and 64750, and for no other reason at all, and not because you have been threatened or forced to do so or made promises of any kind or nature inducing you to plea and I further find that you are mentally competent to have entered this plea. [Emphasis added.]
At this point, the State re-offered evidence admitted before the jury, the court received the evidence, found the evidence sufficient to establish guilt, and found Appellant guilty beyond a reasonable doubt.
THE COURT: Now, the Court will allow you to address the Court, [counsel], as to the punishment which you think would be fair and equitable in this case.
DEFENSE COUNSEL: Yes, Your Honor, we feel -- we would ask the Court to give us the minimum under the guidelines, and that would be twenty-five years to run concurrent on each sentence. I think it was probably said best by Jeanette Gutierrez that Gilbert is an extremely nice man, extremely capable, except he had drug problems. Gilbert has been off drugs for a year. A little time off drugs down in Huntsville won=t hurt him. He is an extremely bright fellow. He needs a little education down there and by the time at the [sic] finishes parole, he will finish his education and be a productive member of society.
THE COURT: Mr. Gutierrez, do you wish to say anything?
APPELLANT: I agree with [counsel]. I will be going back to college.
THE COURT: All right. Well, I wish you the best of luck, Mr. Gutierrez.
APPELLANT: Thank you.
THE COURT: It is the judgment and sentence of this court that in case number 64749 that you be and you are hereby confined to the Texas Department of Corrections for a period of twenty-five years.
In case number 64750, it is the judgment and sentence of this court that you be confined to the Texas Department of Corrections for a like period of twenty-five years. The sentences will be running concurrent.
At this point, there was a discussion as to whether the allegations of two prior felony convictions were true and appropriate inquiry made as to whether Appellant had been forced to admit to the prior convictions or whether he had been promised anything in return for his admission. Appellant stated under oath that he was admitting the allegations were true because indeed they were true.
DEFENSE COUNSEL: Thank you. Of course, he will get credit for all time served?
THE COURT: Yes. The sentences I indicated will be running at the same time. They will be running concurrently. So there won=t be any question, the Court is not going to find that a deadly weapon was used. I=m not making any affirmative finding of that at all.
DEFENSE COUNSEL: Okay.
THE COURT: And so that will make you eligible for parole or -- for parole sooner.
APPELLANT: Yes, sir.
THE COURT: Okay? You will be given credit for all the time you spent in jail as a result of any complaints that led to your incarceration that ultimately led to any indictments in these two cases. Okay?
APPELLANT: Yes, sir. [Emphasis added.]
Duly executed plea papers are also contained within the record in which Appellant admitted the allegations, confessed that he committed the offenses charged, and acknowledged the range of punishment for aggravated assault (enhanced). More specifically, he expressed his understanding Athat there has been no recommendation as to punishment made either to me or my attorney by any attorney or staff member of the District Attorney=s office. I further understand that no recommendation made by anyone is binding upon this court in determining any punishment to be assessed by the court.@
First, we observe that Appellant was duly admonished concerning the voluntariness of his plea. Therefore, the burden shifted to appellant to show his plea was not voluntary. Ybarra, 960 S.W.2d at 745. This he attempts to do by professing that he was told he would serve no more than two years. The record reveals nothing of the kind. Moreover, he received the minimum sentence on each of the aggravated assaults, the sentences were ordered to run concurrently rather than consecutively, and the trial court entered no finding on the use of a deadly weapon. Appellant has failed to demonstrate that his pleas were not voluntary. Because Appellant was aware of the consequences of the pleas, we conclude they were made both knowingly and voluntarily. We overrule the sole point and affirm the convictions.
November 7, 2002
ANN CRAWFORD McCLURE, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)