|
|
NUMBER 13-01-105-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
CARLOS MARTINEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
O P I N I O N
Before Justices Hinojosa, Yañez, and Castillo
Opinion by Justice Castillo
Appellant Carlos Martinez pled no contest to the offense of aggravated sexual assault of a child,[1] without a plea bargain as to the punishment to be assessed by the trial court.[2] The trial judge found him guilty and sentenced him to sixty years incarceration. From this conviction, he appeals. We affirm the judgment of the trial court.
Issues Presented
In eleven points of error, appellant raises three issues: 1) appellant=s plea was rendered involuntary by the court=s failure to admonish him on the sex offender registration requirements and failure to inquire as to whether his counsel had done so; 2) the trial court erred in permitting a written statement by the victim to be considered prior to sentencing; and 3) appellant received ineffective assistance of counsel by his counsel=s failure to object to any of the errors alleged under issues one and two.
The Sex Offender Registration Admonishments
In appellant=s first four points of error, appellant argues that his plea was rendered involuntary because of omissions either by the trial court or his counsel. Specifically, he argues in points of error one and two that the trial court failed to provide him with either oral or written admonishments regarding the sex offender registration of chapter 62 of the code of criminal procedure,[3] as required by article 26.13(a)(5) of the code of criminal procedure[4] and this failure made his plea involuntary. He asserts in point of error three that his plea was involuntary because the trial court failed to ascertain whether his attorney had advised him about the sex offender registration requirements as mandated by code of criminal procedure article 26.13(h).[5] Finally, he argues in point of error four that his attorney=s failure to advise him about the registration requirements rendered his plea involuntary.[6]
The State concedes that the trial court did not give the required admonishment, either orally or in writing, but argues that there is no evidence that appellant was unaware of the consequences of his plea or that he was misled or harmed by the trial court=s failure to admonish him on this issue. The State makes no response to appellant=s last two claims.
We note, first of all, that there is nothing in the record to support any claim of involuntariness. To the contrary, appellant signed a document indicating that his plea was being made freely and voluntarily and affirmed to the trial judge that no one had forced or coerced him into making the plea. The motion for new trial that was filed did not raise any claim of involuntariness and there was no hearing providing any testimony by appellant asserting that his plea was involuntarily made. Even in his argument on appeal, while he claims not to have been aware of all the consequences of his actions, appellant does not claim that he would not have pled nolo contendere if he had known about the sex offender registration; rather, he simply states that he Amay have withdrawn his plea@ if he had known about the registration.
A judge accepting a plea of guilty or nolo contendere is required to provide the admonishments listed in article 26.13, and failure to provide the same is error.[7] Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). However, such error is subject to a harmful error analysis. Id. Specifically, where there is no substantial compliance, the defendant is required to show no more than his unawareness of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Carranza v. State, 980 S.W.2d 653, 657-58 (Tex. Crim. App. 1998).
In the present case, there is nothing in the record before us that indicates that appellant was unaware of the consequences of his plea or that he was misled or harmed by the lack of admonishment. The record before us only shows that appellant was aware of the consequences, was pleading voluntarily, and had at least some familiarity with the sex offender registration requirements.[8]
Even if the record affirmatively demonstrated that appellant was unaware of the sex offender registration requirements, these requirements are not a direct consequence of a plea, but a collateral consequence as they do not impact the defendant=s sentence. Lopez v. State, No. 2-01-255-CR, 2002 Tex. App. LEXIS 1583, *8-*11 (Fort Worth, February 28, 2002, no pet. h.); Thompson v. State, 59 S.W.3d 802, 806-07 (Tex. App.BTexarkana 2001, pet. filed); Ducker v. State, 45 S.W.3d 791, 795 (Tex. App.BDallas 2001, no pet.). A guilty plea is not rendered involuntary by lack of knowledge of a collateral consequence. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999).
There is nothing in the record before us that indicates that appellant=s plea of nolo contendere was involuntary, that he was unaware of the registration requirements, or that he would not have plead guilty had the court or his counsel admonished him on the registration requirements. We overrule appellant=s issue regarding the sexual offender registration requirements.[9]
The Victim=s Written Statement
Appellant=s second issue relates to the trial court=s review of a document submitted by the victim in the case.[10] The record reveals that at the punishment hearing, the victim was present to Aaddress the court.@ Without being sworn, the victim began stating, AThis man standing before the court today B.@ The victim then stopped and the trial judge asked, AWould it be easier if I read it, if you give it to me and I read it? Okay.@ The defense counsel asked for a chance to review the statement and the judge granted the request. After his review of the document, the following exchange took place:
Defense counsel: I believe I had filed a request to have notice of any extraneous offense information that might be coming in.
Judge: This is just the victim. When they have an impact statement, they have a right to come and address the court.
Defense counsel: Well, what I am saying is I was not given any notice at all, I just put it into the record, that there was going to be a victim impact statement at this hearing.
Judge: There is always a victim impact statement.
Defense counsel: I understand that, but not necessarily the drama that we are facing today. And I trust your judgment, Your Honor, in terms of being able to sit through it and keep yourself focused on justice. I have read it.
Prosecutor: Your Honor, would you like to hang on to this or can the victim have it back?
Judge: He can have it back.
Prosecutor: Okay. Thank you.
Judge: Why don=t I make a copy just in case it goes up on appeal so the Court of Appeals can see it.
[Court reporter noted that State=s exhibit P-1 was admitted.]
Prosecutor: Okay.
Judge: We will give him the original.
Prosecutor: We will do that. Thank you.
Judge: Okay. Anything else?
At that juncture, the defense counsel made a point about a fact in the pre-sentence investigation report and then began arguing for a sentence in the lower range of punishment. No further reference was made to the victim=s written statement by either party or by the court.
Appellant makes six complaints related to the above exchange, which he labels as points of error five through ten. Utilizing his numeration, they are: 5) that the trial court erred in allowing the victim to address the court prior to sentencing over appellant=s objection; 6) that the trial court erred in allowing the victim to present a letter to the court prior to sentencing over appellant=s objection; 7) that the trial court erred in admitting the statement prior to sentencing without allowing appellant=s counsel time to review the statement or develop rebuttal; 8) that the admittance of the unsworn statement denied appellant the opportunity to cross-examine the victim; 9) that the unsworn statement admitted prior to sentencing was not a Avictim=s impact@ statement as it was not in the form designated in article 56.03 of the code of criminal procedure; and 10) that by allowing the victim to make an unsworn statement prior to sentencing, appellant was denied his constitutional right of confrontation under the Sixth Amendment to the Constitution of the United States.
We note, first of all, that some of the factual allegations made in the complaints are not supported by the evidentiary record of the hearing. There was no objection to the victim=s brief address or the letter as alleged in points five and six. Appellant=s counsel was allowed time to review the statement and had a chance to introduce testimony regarding factual inaccuracies,[11] contrary to the allegation in point seven. Appellant never made any request to cross-examine the victim, despite the victim=s physical presence in the courtroom, and so his right to cross-examination and confrontation were not violated as alleged in points eight and ten.[12]
Most importantly, our review of the record indicates that none of the objections raised on appeal were presented to the trial court below. Appellant=s failure to object regarding any of these issues waives any error on appeal, even any claims of constitutional violations. Tex. R. App. P. 33.1(a)(1); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001); see also Mayo v. State, 861 S.W.2d 953, 954-55 (Tex. App.BHouston [1st Dist. 1993], pet. ref=d)(failure to object to in-court testimony of victim prior to sentencing waived any error). We therefore overrule all of appellant=s issues related to the trial court=s review of the victim=s written statement.[13]
Ineffective Assistance of Counsel
Appellant also argues, in his points of error four and eleven, that he received ineffective assistance of counsel due to his counsel=s failure to object to the claimed errors raised in issues one and two and in failing to advise him of the sexual offender registration requirements. We review claims of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687-96 (1984). Thus, appellant must show that: (1) his counsel=s performance fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that, but for the counsel=s unprofessional errors, the result of the proceeding would be different. McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992). Furthermore, he must overcome the strong presumption that the challenged action might be considered sound trial strategy. Brown v. State, 881 S.W.2d 582, 589 (Tex. App.BCorpus Christi 1994, no pet.)(citing Strickland, 466 U.S. at 689).
Considering first the argument that counsel failed to advise appellant of his sexual offender registration requirements, we find that the record as it exists before us is inadequate to allow us to find the trial counsel deficient in this regard. See Brown, 881 S.W.2d at 590 (where record did not show to what extent counsel did, or did not, investigate a case, appellate court was unable to conclude that trial counsel was ineffective for failing to fully investigate the case). AAny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). In the present case, there is simply no evidence in the record that demonstrates that defense counsel did not advise appellant of these requirements.[14] The only evidence on the record regarding this issue implies that appellant was informed about them as it was apparently his strategy on punishment to try to convince the court that he could receive proper supervision and treatment in Mexico, even though Mexico does not have strict sexual offender registration requirements.[15] Even if we had a record demonstrating that counsel had not advised appellant of the requirements, we would not find that this would meet the second prong of the Strickland analysis as we have found, in our discussion of the first issue before us, that the record shows no harm in appellant=s not being informed of the requirements, if indeed he was not informed.
Likewise, in reference to the claim that counsel was ineffective for not objecting to the trial court=s failure to provide the sex offender registration admonishments, or inquiring of the court about the same or objecting to the trial court=s failure to inquire of counsel whether counsel had advised appellant of the requirements, as discussed supra, there is no evidence in the record to indicate that the trial court=s failures were harmful. If there was no harm in the trial court=s failure to give the admonishment or inquire of counsel whether he had advised appellant of the registration requirements, then it cannot be said that the outcome of the proceedings would have been different if counsel had objected or inquired about the trial court=s responsibilities regarding the sex offender registration requirements.[16]
Similarly, in reference to appellant=s last complaint that trial counsel was ineffective for failing to properly object to the trial court=s consideration of the victim=s written statement, we note that the record is silent as to counsel=s reasons for not objecting. Even assuming error, the record is insufficient to overcome the presumption that counsel=s actions were part of a strategic plan, such as choosing not to seem to be lacking in sympathy for an apparently emotional victim. See Tong v. State, 25 S.W.3d 707, 713-14 (Tex. Crim. App. 2000)(where the record gave no reasons for counsel=s failure to object to victim impact testimony from victims of extraneous offenses, even though the testimony was arguably objectionable, point was overruled).
Additionally, without deciding whether counsel=s failure to object meets the requirement of the first prong of the Strickland review or even whether the admission of such document was error, we find that appellant is unable to meet his burden to prove that but for such failure, the outcome of the case would have been different. Even assuming error, considering the evidence already admitted for the plea of guilty[17] B the graphic description of the crime and the obvious emotional turmoil suffered by the victim as contained in the victim=s statement to the police; appellant=s own detailed and unremorseful confession which, in part, stated that the victim, a young child, desired the abuse;[18] the long history of abuse, both physically and emotionally, of the family; the evidence of possible sexual abuse of another young child; and the violation of the relationship of trust and other circumstances surrounding the crime, including its long term of duration B we cannot say that but for the admission of the brief victim=s statement, the outcome of this case would have been different. Appellant=s issues regarding ineffective assistance of counsel[19] are overruled.
Conclusion
Having found all issues either waived or overruled, we affirm the judgment of the trial court.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 2nd day of May, 2002.
[1] Tex. Pen. Code Ann. '22.021(a)(1)(B)(v)(Vernon Supp. 2002).
2 The only bargain between the appellant and the State at the plea proceeding was that appellant would plead no contest to count one of a four-count indictment and the remaining three counts of aggravated sexual assault would remain unadjudicated.
3 Tex. Code Crim. Proc. Ann. arts. 62.01-.13 (Vernon Supp. 2002).
4 Tex. Code Crim. Proc. Ann. art. 26.13(a)(5)(Vernon Supp. 2002).
5 Tex. Code Crim. Proc. Ann. art. 26.13(h)(Vernon Supp. 2002).
6 Appellant=s listed point complains that his Acounsel was ineffective because he failed to inquire about the registration requirements under Chapter 62 of the Code of Criminal Procedure for persons convicted of Aggravated Sexual Assault or object or attempt to withdraw the plea which rendered the plea involuntary.@ The argument listed beneath this point falls into two basic assertions: 1) trial counsel was ineffective for not objecting to the failure of the trial court to give the necessary admonishments; and 2) if appellant had been advised of the sex offender registration provisions, Ahe may have withdrawn his plea and gone to trial, but he was denied the opportunity to make an informed decision because trial counsel failed to advise him and the trial court failed to inquire.@ We will here address only the apparent complaint that the trial attorney did not advise him of the registration requirements and that made the plea involuntary. The complaint regarding ineffectiveness of counsel will be taken up in the discussion of that issue.
[7] Only substantial compliance is required under the terms of the article itself, see Tex. Code Crim. Proc. Ann. art. 26.13(c)(Vernon Supp. 2002), but in the present case there is no dispute that there was no compliance at all.
8 At the punishment hearing, as part of argument, defense counsel stated the following:
I have a gentleman here from the Mexican Consulate, Mr. Raul Garcia, who has informed me that if he were to be released, even into Mexico, there are programs that can be forwarded from here to over there, not as strict as our sexual offender registration programs, but where they try to treat a person and readapt a person to society.
[9] Appellant=s points of error one through three and the pertinent portion of point of error four.
10 Appellant argues that the document could not have been a victim impact statement as that term is used in the code of criminal procedure because it was not in the form described by article 56.03 of that code. See Tex. Code Crim. Proc. Ann. art. 56.03(b)(Vernon Supp. 2002). As the determination of the precise characterization of the victim=s written statement is not necessary to the disposition of this case, we do not address this particular contention.
11 Although the judge did not specifically ask appellant if he wanted to introduce contravening testimony, she did ask, AAnything else?@ at which time counsel objected to matters in the pre-sentence investigation report. Nothing in the record indicates that the trial judge would not have permitted him to introduce any testimony or evidence he chose in contravention to the letter. There is no evidence in the record either of the court=s denying appellant time to seek out contravening testimony or Adevelop rebuttal.@ Indeed, no such request was ever made.
12 The mere fact that the statement was provided in written form did not bar appellant from calling the victim to the stand for cross examination. Truehitt v. State, 916 S.W.2d 721, 723 (Tex. App.BBeaumont 1996, no pet.)
[13] By appellant=s numeration, points of error five through ten.
14 As noted by the court of criminal appeals, in the majority of cases, the record is not sufficiently developed to allow for a review of a complaint of ineffective assistance of counsel on direct appeal. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
[15] See defense counsel=s comments during the punishment hearing previously restated in this opinion.
16 Moreover, as previously noted, the only evidence in the record before us suggests that appellant was in fact aware of the sexual offender registration requirements.
17 There was also a pre-sentence investigation report (APSI@) submitted at the time of punishment. We are aware that victim impact evidence is often routinely included in pre-sentence investigation reports, but as the one admitted in the present case does not appear in the record on appeal, we will not speculate as to what may or may not have been before the trial court in the PSI.
[18] Stating, for example, that the victim Awould want to do it all the time.@
[19] Appellant=s points of error four (in pertinent part) and eleven.