IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0278–14
ISRAEL YTUARTE RODRIGUEZ, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
M EYERS, J., announced the judgment of the Court and delivered an
opinion in which A LCALA, R ICHARDSON, and N EWELL, JJ., joined. K ELLER, P.J.,
and J OHNSON, K EASLER, and H ERVEY, JJ., concurred. Y EARY, J., did not
participate.
OPINION
Appellant was charged with ten counts of sexual assault of a child and indecency
with a child. Based on the advice of his counsel, he declined the State’s plea bargain
recommending a ten-year sentence and proceeded to trial. The jury found Appellant
guilty and assessed a punishment of eight life sentences and one twenty-year sentence.
He filed a motion for new trial claiming ineffective assistance of counsel. The trial judge
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granted the motion for new trial and motion to require the State to reinstate the plea-
bargain offer of ten years. The State reinstated the plea offer, and Appellant accepted it.
After admonishing Appellant and accepting his stipulations of guilt, the trial judge
rejected the plea agreement and advised Appellant that he could withdraw his guilty plea
and go to trial or accept a 25-year sentence. Appellant rejected the 25-year sentence and
moved to recuse the trial judge on the basis of demonstrated prejudice. The judge
voluntarily recused herself, and a new judge was assigned to the case. Appellant filed
another motion to require the State to re-offer the ten-year deal. The new judge declared
that the slate was wiped clean by the original judge’s recusal but that she would accept a
new agreement if one were reached. The State offered a plea deal of 25 years and
Appellant accepted, pleading guilty to five of the counts in exchange for the waiver of the
other five counts. The judge accepted the deal and signed the judgments of conviction.
COURT OF APPEALS
Appellant appealed, claiming that he was entitled to a ten-year plea-bargain offer
from the State and that the trial court was required to accept the ten-year plea agreement.
To determine whether Appellant was prejudiced by his counsel’s deficient performance,
the court of appeals considered whether Appellant would have accepted the original plea
deal had he been given competent advice by counsel, whether the State was likely to
withdraw the plea bargain, and whether the trial court was likely to accept the plea
bargain. Rodriguez v. State, 424 S.W.3d 155 (Tex. App.–San Antonio 2013).
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Concluding that Appellant was indeed prejudiced, the court of appeals determined that
the proper remedy was to require the State to reoffer the ten-year plea bargain and to have
the agreement presented to a judge who had not recused herself. Id. at 163. The court of
appeals disagreed with Appellant that he was entitled to specific performance of the plea
agreement and stated that the new judge had the discretion to accept or reject the
agreement. Id. The court of appeals reversed the judgment of the trial court and
remanded the case with instructions for the State to re-offer the ten-year plea bargain. Id.
at 164.
ARGUMENTS OF THE PARTIES
The State filed a petition for discretionary review, which we granted to consider
the following grounds for review:
1. Did the court of appeals err by considering the original trial judge’s
voluntary recusal?
2. Did the court of appeals err by concluding that there was a reasonable
probability that the original trial judge would have accepted the original ten-
year plea bargain?
3. Did the court of appeals err by concluding that the second trial judge was
required to order the State to reoffer the ten-year plea bargain a second
time?
4. Was the court of appeals correct to reverse the trial court’s judgment as
to conviction and sentence? Or should the court of appeals have only
reversed the trial court’s judgment as to sentence?
The State argues that the conclusions of the court of appeals regarding the original
judge’s recusal are unsound and affected the court’s analysis. The State says that there is
nothing in the record demonstrating the judge’s bias in this case and Appellant’s motion
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to recuse did not allege any facts to support an allegation of bias. The State notes that
although the judge rejected the ten-year plea bargain, she was within her discretion to do
so. The State argues that a voluntary recusal, in and of itself, cannot be considered as
evidence to support a claim under Lafler v. Cooper, 132 S.Ct. 1376 (2012) or Missouri v.
Frye, 132 S.Ct. 1399 (2012).
The State contends that the court of appeals’s conclusion that there was a
reasonable probability that the original trial judge would have accepted the ten-year plea
agreement was based on a misreading of Frye and the assumption that the trial judge was
biased. According to the State, the court of appeals’s reading of Frye conflicts with our
holding in Ex parte Argent, 393 S.W.3d 781 (2013). The State asserts that, under the
court of appeals’s reasoning, the defendant has carried his burden of showing prejudice
unless the State proves that the trial court would have rejected the plea bargain. The State
says the record shows that both trial judges reviewed the case and the applicable law
before denying Appellant’s request for a ten-year sentence. And, because there is no
evidence that the trial judge would have accepted the ten-year plea bargain, Appellant did
not show prejudice.
Finally, the State argues that, even if the trial court erred, under Lafler, Appellant
is entitled only to reconsideration of his sentence. Appellant has entered two voluntary
guilty pleas, and his guilt is not in question. Because both of the bargained-for sentences
were within the allowed range of punishment, the court of appeals should have affirmed
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Appellant’s convictions and remanded the case for the trial judge to determine the proper
sentence.
Appellant argues that, in analyzing claims of ineffective assistance of counsel, a
reviewing court should consider the entire record and review the claim under the totality
of the circumstances. Thus, the court of appeals properly considered the recusal of the
first judge. Appellant says that the court of appeals also properly followed our mandate
in Argent and found that there was a reasonable probability that the trial court would not
have rejected the plea agreement. Appellant argues that the State’s proposed analysis
would require direct testimony from the trial court on what it would have done in a
particular scenario, which is not the burden of proof contemplated by Strickland v.
Washington, 104 S.Ct. 2025 (1984). Appellant states that the court of appeals’s remedy
does nothing more than place him back in the position he was in prior to his misadvised
rejection of a ten-year plea-bargain offer. This remedy neutralizes the taint of the Sixth
Amendment violation and is consistent with the relief afforded the petitioner in Lafler.
Finally, Appellant argues that the State’s assertion that he is entitled only to a new
sentencing hearing fails to neutralize the taint of the constitutional violation.
CASELAW
In Frye, defense counsel failed to inform the defendant that the prosecution had
made two plea bargain offers–one to plead guilty to a felony with 10 days in jail, and a
second to plead guilty to a misdemeanor with a recommended 90-day sentence. The
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offers expired without Frye’s knowledge, and he subsequently pleaded guilty with no
underlying plea agreement and was sentenced to three years in prison. The Supreme
Court noted that the negotiation of a plea bargain is a critical point and defense counsel
have the responsibility to provide adequate assistance at this stage. Frye, 132 S.Ct. at
1407-08. The Court applied the Strickland standard and stated:
To show prejudice from ineffective assistance of counsel where a plea offer
has lapsed or been rejected because of counsel’s deficient performance,
defendants must demonstrate a reasonable probability they would have
accepted the earlier plea offer had they been afforded effective assistance of
counsel. Defendants must also demonstrate a reasonable probability the
plea would have been entered without the prosecution canceling it or the
trial court refusing to accept it, if they had the authority to exercise that
discretion under state law. To establish prejudice in this instance, it is
necessary to show a reasonable probability that the end result of the
criminal process would have been more favorable by reason of a plea to a
lesser charge or a sentence of less prison time.
Id. at 1409. Determining that Frye had shown that he would have accepted the plea offer
had he known about it, the Supreme Court remanded the case to the court of appeals to
consider whether the agreement would have been adhered to by the prosecution and
accepted by the trial court. Id. at 1411.
The same day as the Frye decision, the Supreme Court considered Lafler v.
Cooper. In Lafler, counsel did inform the defendant of the plea bargain offered by the
State, but counsel advised the defendant to reject the favorable offer. The defendant
followed his counsel’s advice and rejected the deal, went to trial, and was convicted by a
jury. The sentence returned by the jury was harsher than the one recommended by the
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State in the plea offer. The Supreme Court reiterated that, to show prejudice in such
circumstances, a defendant must show that, but for counsel’s ineffective advice, there is a
reasonable probability that the defendant would have accepted the plea offer, that the
prosecution would not have withdrawn it, that the court would have accepted its terms,
and that the conviction or sentence would have been less severe under the offer’s terms
than under the judgment and sentence that were, in fact, imposed. Lafler, 132 S.Ct. at
1385. The Court stated that when a defendant has shown prejudice, the appropriate
remedy depends upon whether resentencing alone will fully redress the constitutional
injury. If not, the proper way “to remedy the constitutional injury may be to require the
prosecution to reoffer the plea proposal. Once this has occurred, the judge can then
exercise discretion in deciding whether to vacate the conviction from trial and accept the
plea or leave the conviction undisturbed.” Id. at 1389. Specifically, the Court in Lafler
decided that the proper remedy was to order the State to reoffer the plea agreement and if
the defendant accepted the offer, the “trial court can then exercise its discretion in
determining whether to vacate the convictions and resentence respondant pursuant to the
plea agreement, to vacate only some of the convictions and resentence respondent
accordingly, or to leave the convictions and sentence from trial undisturbed.” Id. at 1391.
As the Supreme Court noted in Frye, courts must consider whether state law grants
trial judges the discretion to refuse a plea. Texas Code of Criminal Procedure Article
26.13(a)(2) states:
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Prior to accepting a plea of guilty or a plea of nolo contendere, the court
shall admonish the defendant of the fact that the recommendation of: the
prosecuting attorney as to punishment is not binding on the court. Provided
that the court shall inquire as to the existence of a plea bargain agreement
between the state and the defendant and, if an agreement exists, the court
shall inform the defendant whether it will follow or reject the agreement in
open court and before any finding on the plea. Should the court reject the
agreement, the defendant shall be permitted to withdraw the defendant’s
plea of guilty or nolo contendere.
Thus Texas law provides trial judges with broad discretion even when there is a plea
agreement between the State and the defendant.
In Ex parte Argent we considered whether to adopt Lafler and Frye’s more
demanding standard for determining prejudice from ineffective assistance during the plea
bargaining process. 393 S.W.3d 781. We followed Lafler and Frye and held that, to
establish prejudice due to counsel’s ineffective assistance in the context of pretrial plea
negotiations, a defendant must show a reasonable probability that he would have accepted
the original offer if counsel had not given ineffective assistance, that the State would not
have withdrawn the offer, and that the trial court would have accepted the plea bargain.
Id. at 784.
ANALYSIS
First, we note that, in both Lafler and Frye, the defendants received fair trials with
ineffective assistance only in the pretrial plea-bargaining process. In the case before us, a
new trial was granted in the interest of justice because it was apparent to the trial judge
“that not all of [trial counsel’s] decisions were trial strategy and that some of them may
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have not been correct assessments of either the case and/or the law.” When a new trial
was ordered, the convictions from the first trial were vacated and the case was restored to
the pretrial position.1 While this case is distinguishable from Lafler and Frye, Appellant
was still entitled to a determination of whether he was prejudiced by his counsel’s
ineffective assistance during the initial plea bargaining process. We agree with the court
of appeals that he was. Appellant likely would have accepted the ten-year plea deal had
he received competent advice of counsel.2 The State likely would not have withdrawn the
plea because the record shows that there may have been difficulties getting the victims to
testify at the time of trial.3 The only question is whether there is a reasonable probability
that the original trial judge would have accepted the ten-year plea agreement when it was
initially offered, prior to the trial. While there were no intervening circumstances that
would have given the trial court reason to reject the agreement, the trial judge would have
1
Rule of Appellate Procedure 21.9(b) says, “Granting a new trial restores the case to its
position before the former trial, including, at any party’s option, arraignment or pretrial
proceedings initiated by that party.”
2
The record does indicate that the State made the initial plea offers during the time
Appellant was represented by his original attorneys. It is unclear whether the offers were relayed
to Appellant and those attorneys were subsequently replaced by Appellant’s trial counsel.
3
At hearings after Appellant was granted a new trial, the prosecutor from the first trial
stated that she had made the ten-year plea offer because the victims were “going through a whole
lot of things personally” at the time the offer was made and she was not sure about their ability to
testify. She stated that, as the years progressed and the trial began, “The girls were able to begin
to deal with a lot of their issues. They were maturing. They were going through therapy, and
there was a lot of healing that was going on in their family situation. And they were a lot more
capable of sharing what had happened to them during the years when they had been involved
with the defendant.”
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had Appellant’s lengthy criminal history and extensive police reports for the charged
offenses to consider. Despite this evidence against Appellant, there is nothing in the
record to indicate that the trial judge would have rejected the agreement had it been
presented to her prior to the trial. In answer to the State’s second ground for review, the
court of appeals did not err in concluding that there was a reasonable probability that the
trial judge would have accepted the plea agreement.
Because Appellant was prejudiced by counsel’s ineffective assistance in pre-trial
plea bargaining, the first trial judge followed the remedy outlined in Lafler and ordered
the State to reoffer the ten-year plea. However, despite the direction from Lafler and
Frye, she did not have the option to leave the convictions from trial undisturbed because
the convictions had already been vacated by the granting of a new trial. Thus, the trial
judge’s only choices were the same as they would be had the trial never occurred: to
follow the prosecution’s sentencing recommendation or to reject the agreement and allow
the defendant to withdraw his plea. See C ODE C RIM. P ROC. § 26.13(a)(2). She exercised
her discretion to reject the ten-year sentence and allowed Appellant to either accept a
sentence of 25 years or to withdraw his guilty plea and go to trial.4 When rejecting the
4
As a repeat offender, Appellant was eligible for punishment from five to 99 years or life.
Even after five of the counts were dropped by the State in exchange for a guilty plea, the judge
could have chosen to make Appellant’s sentences run consecutively. See TEX . PENAL CODE
Section 3.03(b)(2)(B) (stating that, even if a plea agreement has been reached between the State
and the defendant, a trial court has the discretion to order the sentences to run consecutively
when a defendant is found guilty of more than one offense of child sexual assault and indecency
with a child arising out of the same criminal episode). Thus, the judge in this case had a great
deal of discretion in sentencing Appellant even though the State had agreed to a sentencing
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reinstated plea agreement the judge stated, “I, of course, have had the opportunity to look
at the evidence, but I have also sat through the evidence. And having done both, Mr.
Rodriguez, I’m going to give you the opportunity, if you so wish, to withdraw your guilty
plea. I am not going to take the plea bargain that’s been outlined.” Appellant withdrew
his guilty plea, and the case was set for trial the following day.
Appellant filed a motion to recuse the trial judge, which stated that “The Judge
granted Defense motion to require state to reinstate plea bargain offer of 10 years and
thereafter rejected the plea bargain.” Appellant said in his motion that this demonstrated
prejudice against him and the judge must be removed from the case and a new hearing on
his motion to reinstate the plea bargain offer must be held before an impartial court.
Rule of Civil Procedure 18a provides that when a motion to recuse a judge is filed,
the judge must either sign an order of recusal or sign an order referring the motion to the
regional presiding judge. Because the administrative judge who would have heard the
defense motion was out of town, the trial judge voluntarily recused herself for “judicial
efficiency so this case can move on.” She stated:
I am not acknowledging a single thing in that motion. There is nothing in
that motion that I think is true. There’s nothing in that motion that I would
support. And I am in no way conceding anything that is in that motion.
What I am saying is that there’s a court available to try this case next week.
This is a five-year-old case that needs to be tried. And frankly the ability
that we have had for the past two hours to ascertain whether or not the
fourth region administrative judge is available to hear this so it can be
fought in an actual courtroom is not happening right now. And so rather
recommendation and to drop half of the charges against Appellant.
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than postpone it for three or four, or five more days for me to get up to say
basically what I’m saying right now, I think is not in the best interest of
time. And I think it just delays the case three, four, five, six–ten more days.
Let’s be very clear. There is no concession on that motion. I’m simply
voluntarily agreeing that if this case is going to be heard in the next few
days, it should be heard by someone else.
The case was then reassigned to a new judge.
In its first ground for review, the State asks us whether the court of appeals erred
in considering the trial judge’s voluntary recusal. The court of appeals considered the
recusal in determining whether there was a reasonable probability that the trial judge
would have accepted the plea agreement if it had been presented to her before trial. As
stated above, we agree with the court of appeals’s conclusion that the trial judge likely
would have accepted the plea agreement prior to the trial. However, the court of appeals
did err in assuming that the original trial judge had recused herself on the basis of
prejudice. The court stated that “The degree of speculation demanded by this review is
exacerbated in a case where the judge voluntarily recuses herself, seemingly on the basis
of prejudice.” Rodriguez, 424 S.W.3d at 161. There is nothing in the record indicating
prejudice on the part of the original trial judge. She was within her discretion to reject the
State’s ten-year sentence and offer instead a 25-year sentence, which is still at the low
range for the charged offenses. See supra note 4. Appellant’s motion to recuse did not
state any basis for prejudice on the part of the trial judge other than that she had granted
his motion for the State to reoffer the ten-year plea deal and then rejected the plea deal.
As we stated in Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011), “recusal is
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not required when based solely on judicial rulings, remarks, or actions.” Even the trial
judge’s comment that she was rejecting the plea agreement in part because she “sat
through the evidence” at trial is not a basis for finding that the judge was prejudiced
against Appellant. The Supreme Court stated that “opinions formed by the judge on the
basis of facts introduced or events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky v. US, 510 U.S. 540 (1994). The court of appeals erred in holding
that Appellant was entitled to have the original plea agreement presented to a trial judge
who had not recused herself.
Appellant said in his motion to recuse the trial judge that her rejection of the plea
agreement demonstrated prejudice against him and that a new hearing on his motion to
reinstate the plea-bargain offer must be held before an impartial court. Although the trial
judge’s ruling did not demonstrate bias against him, Appellant still got what he asked for.
After the trial judge’s voluntary recusal, the second judge held a new hearing on
Appellant’s motion to reinstate the plea-bargain offer. She noted that the original judge
had voluntarily agreed to recuse herself and stated, “Now, when that happens, everything,
the slate is wiped clean. That means that a new judge, myself in this case, has two
options: one, to accept a plea bargain agreement if it is offered and accept[ed] or go to
trial.” We agree. Upon recusal of the trial judge and assignment of the new judge, the
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case started over from the beginning, and it was as if no plea negotiations had ever
occurred. The court of appeals erred by concluding that the second judge was required to
order the State to reoffer the ten-year plea bargain a second time and thus the State’s third
ground for review is sustained.
Because we hold that the court of appeals erred in reversing the trial court’s
judgment, we need not reach the State’s fourth ground for review.
CONCLUSION
Appellant received everything he requested in this case: the trial judge granted his
motion for new trial, granted his motion to require the State to reoffer the most favorable
plea deal, and then recused herself so that a new judge could hear the case. The new
judge was not required to give Appellant what the previous judge, whom he sought to
recuse, had already given him.
We reverse the decision of the court of appeals. The slate was wiped clean upon
the recusal of the original trial judge and the court was entitled to start anew. The 25-year
sentence that was offered by the State, agreed to by Appellant, and accepted by the trial
court is reinstated.
Delivered: September 23, 2015
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