MEMORANDUM OPINION
No. 04-12-00002-CR
Roy Luis RESENDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR2055
Honorable Lori I. Valenzuela, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: October 31, 2012
AFFIRMED
Pursuant to a plea-bargain agreement, Roy Luis Resendez pled no contest to having
committed sexual assault and was placed on deferred adjudication community supervision for
two years. He brings four issues on appeal: (1) his plea was not knowingly and voluntarily made
because both his attorney and the trial judge improperly advised him of the law; (2) the trial
judge erred in inaccurately advising him of his ability to apply for and obtain early termination of
sex offender registration; (3) he received ineffective assistance of counsel because his counsel
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inaccurately advised him of his ability to apply for and obtain early termination of sex offender
registration; and (4) he received ineffective assistance of counsel because his trial counsel did not
obtain a ruling on his motion for new trial before the trial judge lost plenary power. We affirm.
BACKGROUND
On September 29, 2011, on the day of trial and as the venire panel congregated in the
hallway, Resendez decided to accept the State’s plea-bargain offer of two years deferred
adjudication community supervision. The trial judge then properly admonished Resendez, and
Resendez affirmatively stated that he was waiving his rights. The trial judge asked defense
counsel if he believed Resendez had a factual and rational understanding of the charges pending
against him:
Defense Counsel: Do you understand the charges against you?
Resendez: Yes.
Judge: And before we proceed any further, I’m seeing Mr. Resendez is a little
anxious. Let me just put on the record that we have been here since this morning
at approximately 10:00. I’ve had a jury panel of 63 potential jurors waiting
outside in the hallway in anticipation of trying this case and proceeding to trial. I
believe since it is after 2:15, I have tried to give both sides sufficient time to not
only confer, but to also enter into a plea agreement that I understood Mr.
Resendez was willingly entering into. And so Mr. Resendez, I just want to make
sure that you understand what you’re doing now is you’re waiving that right.
Okay. And that’s what I’m asking your attorney and that’s what he is asking you.
Okay. So all the rights that you have, because you’re accused of a criminal
offense, you’re waiving at this point. Do you understand that?
The defendant replied, “Yes.” The trial judge then again asked defense counsel if he believed
Resendez had a factual and rational understanding of the charges pending against him. Defense
counsel answered, “He does, Your Honor.” The judge then asked defense counsel if Resendez
had been able to assist in his possible defense:
Defense counsel: Yes, he has, Judge. And we have gone over the plea agreement
in great detail today. I explained to him, you know, the trial process, the rulings of
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evidence that can come in and things like this, and the complainant’s evidence.
I’ve also discussed with him that he would – that for him to take a plea, it was his
plea, and he had to do it freely and voluntarily. And that the only way you could
accept a plea is if he did it freely and voluntarily. And he understood that, and
that’s what he wants to do. And he is probably not thinking that’s what he wants
to do but he thinks under the circumstances it’s appropriate.
The trial judge then asked if Resendez was mentally competent to enter into this agreement and
waive all his rights. Defense counsel answered that there was no question in his mind that
Resendez was mentally competent. After all of the judge’s admonishments, Resendez pled no
contest to the charge of sexual assault. The trial judge asked Resendez if he was pleading no
contest because he had discussed it with his attorney and believed it was in his best interest.
Resendez replied, “Yes.” The trial judge asked Resendez if he had been threatened or forced into
the plea agreement. Resendez replied, “No.” The trial judge then asked if he had been promised
anything in exchange for his plea. Resendez answered, “No.”
After the State presented evidence of Resendez’s guilt, the trial judge found sufficient
evidence of his guilt but made no other finding at that time. Resendez then waived a pre-
sentencing investigation and the trial judge proceeded to sentencing. The trial judge asked if
there was anything else Resendez wanted to offer on his behalf before she imposed his sentence.
Resendez’s defense counsel stated that the State was recommending two years deferred
adjudication, which was an appropriate sentence. Defense counsel noted that Resendez had spent
twenty-seven months in jail and was currently on a monitor. Defense counsel asked the judge to
remove the condition of the monitor and concluded with the following: “And hopefully he will
not have to be on lifetime sex registration.” The trial judge granted Resendez’s application for
deferred adjudication and placed him on community supervision for two years. The trial judge
also ordered Resendez to comply with Chapter 62’s sex registration requirements. The trial judge
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asked if Resendez had any further questions. After confirming that he would be released and
would have the monitor removed, Resendez asked the following:
Resendez: Also, like my lawyer said, is there a way later on – I don’t know, is
there any law that I can get off this sex offender registration or whatnot?
Defense counsel: There is a lot that came into effect on September 1st. It’s a
commission and it’s a review board. There are some requirements. I don’t know
what the general requirement is. But obviously he has to be off the deferred. And
I think deferred will help the fact.
Court: Sure.
Defense Counsel: I told him I would go over that with him when he finishes
deferred.
Court: Right. Because it’s not going to be at this point within my discretion to
make that decision. I do think -- well, we will have to see what they do. But of the
nature – based on the nature of the offense—I mean you basically got the
minimum punishment you can get. And if there is a commission that is going to
look into that, they certainly, I think, will take that into consideration. But I don’t
know what exactly what they are doing. It’s not within my discretion at this point.
And it’s important that you do it as part of your deferred because I ordered you to
comply with Chapter 62. If you don’t, you will be looking at a whole new felony.
Resendez: That’s like going to DPS [Department of Public Safety].
Court: They will talk to you – probation will talk to you about it, and they will let
you know exactly what you need to be doing. But, yes, you are going to have to
register as a sex offender. Every time you move, you need to re-register. You
leave the city, you need to re-register. Okay. All right, sir. Good luck to you.
On October 28, 2011, Resendez timely filed a motion for new trial, arguing that his plea
was involuntary because he believed he would not have a lifetime obligation for registration as a
sex offender. On December 19, 2011, the trial judge held a hearing on the motion for new trial.
At the hearing, Resendez’s defense lawyer questioned him about why he had pled no contest:
Q: And I explained to you that I felt that the evidence could be sufficient for a
jury to find you guilty based upon [the complainant’s] testimony alone, and the
fact that she had made an outcry to two individuals within a year; is that correct?
A: Yes.
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Q: Okay and given those considerations, you also had a very good offer of two
years deferred, which, if you went to trial, you knew that you could not get
deferred adjudication if a jury found you guilty?
A: Yes, I understood.
Q: Okay. And the fact that we had a beneficial plea agreement and no fine, you
decided to take it. But we discussed sexual registration, did we not?
A: Yes.
Q: And based upon that representation, is that one of the reasons you decided to
take the plea?
A: That was one of the main reasons.
Q: You had expectation that you may be able to terminate your sexual
registration after you completed your probation term?
A: Exactly.
On cross-examination, Resendez admitted that he had not been forced into taking the plea
bargain. When asked if his defense counsel had guaranteed to him that at any point, he would be
released from the sex offender registration requirement, Resendez replied, “No, he said I would
be able to apply.” Resendez’s defense counsel then said the following to the trial judge:
Judge, if I may state into the record that my representation of my client was based
upon the fact that I was aware of some new provisions within the sexual – or
within the registration codes. And that there – the determination of lifetime
registration was kind of up for debate somewhat. And the decision would rest
upon the counts of sex offender treatment, which has authority to consider
applications for termination of sexual registration – lifetime registration. At the
time I did not know which offenses were included or excluded. Since that time
I’ve done some research. And it appears that contact sexual offenses, such as
sexual assault, are excluded from that at the present moment. So, you know, I
question whether or not my client had the correct information when he made the
decision to plead guilty. Because one of the considerations he had obviously was
whether or not he had lifetime registration. As it stands now, it appears that he is
still under that provision. Because the offenses that are excluded are like
compelling prostitution, indecent exposure, unlawful restraint of a victim under
17, indecency with a child by exposure, possession or promotion of child
pornography, online solicitation of a minor, and indecency with a child. So those
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are the only noncontact offenses that are currently being considered by the council
on sex offenders in compliance with federal [law].
(emphasis added).
Defense counsel then called Shannon Jones, the manager of Bexar County Probation
Department’s sex offender program, to the stand. Jones testified to the following regarding early
termination of sex offender registration:
The application of the council – the council is in charge of the obligation – the
council in sex offender treatment in Texas has worked with the legislature to
determine which offenses. They compiled a list of offenses with which you can
petition and be considered for early termination. That goes along with federal
sentencing guidelines or registration obligations. The list of – that is referenced –
there’s not a list in the CCP because the council was tasked with making that list.
The list that the council put together, that is, cases that they will consider for de-
registration or early – which is early termination, the wording in the CCP is early
termination of registration – are the noncontact cases. At this time, currently the
council, who has been tasked with developing and licensing the treatment
providers that even do any of the evaluations, any of the criteria, has been tasked
– that’s the list that they have come up with, the cases that they are considering
for what we call de-registration. And those are the noncontact cases. We’ve had
council – contact with the council because it’s an ongoing process. There hasn’t
been – there’s been a lot of work done; there’s been a lot of effort put in to
making sure the tools are correct on how the process works. So it’s a nonfinished
product at this time. And it has been ongoing for a while. . . . Allison Taylor, who
is the director of the council, has basically assured me [that] these are the cases
that can petition for early termination.
(emphasis added).
The trial judge then noted that she remembered having discussions about early
termination during the plea hearing but could not remember exactly what had been said. She
remembered defense council “reassuring” Resendez that he “could in fact early terminate.”
Based on her recollection, the trial judge orally granted Resendez’s motion for new trial. Later,
however, she determined that because seventy-five days had passed since she had imposed
sentence, she had no authority to grant a new trial and signed an order stating, “Granted but lost
plenary power.” Resendez now appeals from the trial court’s Order of Deferred Adjudication.
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DISCUSSION
Resendez’s first three issues deal with what transpired during his plea and sentencing
hearing. In his first issue, he argues that his plea was not knowingly and voluntarily made
because both his attorney and the trial judge improperly advised him of the law. Resendez argues
in his second issue that the trial judge erred in inaccurately advising him of his ability to apply
for and obtain early termination of sex offender registration. In his third issue, he argues that his
trial counsel was ineffective because his counsel inaccurately advised him of his ability to apply
for and obtain early termination of sex offender registration. All three of these issues assume that
Resendez’s trial counsel and the trial judge did, in fact, inaccurately advise him of the law during
the plea and sentencing hearing. However, in reviewing the record of the hearing, neither the trial
judge nor defense counsel did any such thing. Defense counsel stated that “hopefully [Resendez]
will not have to be on lifetime sex registration.” (emphasis added). Defense counsel noted that
there was “a lot that came into effect on September 1st,” but that he did not know what the
commission and review board would do. The trial judge stated that she did not know exactly
what the commission was doing. And, she then reiterated that Resendez would have to register as
a sex offender and re-register every time he moved. Neither the trial judge nor defense counsel
inaccurately advised Resendez of the law.
Further, at the motion for new trial hearing, Shannon Jones testified that the Council on
Sex Offender Treatment, which has been empowered by the legislature, had not yet determined
which offenses would be eligible for early termination of the sex registration requirement and
that the process was still ongoing. See TEX. CODE CRIM. PROC. ANN. arts. 62.402, 62.404.
Indeed, the Council on Sex Offender Treatment did not publish its list of offenses until April
2012, more than four months after the motion for new trial hearing. See Tex. Dep’t of
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State Health Servs., Council on Sex Offender Treatment Home Page,
http://www.dshs.state.tx.us/csot/default.shtm (last visited Oct. 17, 2012); Tex. Dep’t of
Pub. Safety, Crime Records Service, Tex. Sex Offender Registration Program, Tex.
Offenses Tiered Under the Fed. Adam Walsh (published April 2012),
https://records.txdps.state.tx.us/DPS_WEB/SorNew/SORP-SORNA.pdf (last visited Oct. 17,
2012). Thus, even at the time of the motion for new trial hearing, it was not yet clear whether the
offense for which Resendez had pled no contest would be an offense eligible for early
termination of the sex offender registration requirements. Thus, the trial judge and defense
counsel correctly advised Resendez that there was an ongoing process and that they did not yet
know what the result would be. Resendez’s first three issues are overruled.
In his fourth issue, Resendez argues that he received ineffective assistance of counsel
because his trial counsel did not obtain a ruling on the motion for new trial during the trial
court’s plenary power to rule on the motion. We measure a claim of ineffective assistance of
counsel against the two-prong test established by the Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.
Crim. App. 1986). The appellant must first show that his attorney’s performance was deficient,
i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant has demonstrated
deficient assistance, it is necessary to affirmatively prove prejudice. Id. Further, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Id. at 813. Under normal circumstances, the record on
direct appeal will not be sufficient to show that counsel’s representation was so deficient and so
lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s
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conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). In the majority of cases, the record on direct appeal is simply undeveloped and cannot
adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833. Like the majority of
cases, here, the record is undeveloped and does not reflect what Resendez’s trial counsel did or
did not do to secure a hearing on the motion for new trial. Resendez’s fourth issue is overruled.
CONCLUSION
We affirm the trial court’s Order of Deferred Adjudication.
Karen Angelini, Justice
Do not publish
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Roy Luis Resendez v. State
Combined Opinion