Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00533-CR
Jesse GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR7759W
Honorable Jefferson Moore, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: April 13, 2016
AFFIRMED
On August 13, 2015, Appellant Jesse Ibanez Garza was sentenced to ten-years’
confinement in the Institutional Division of the Texas Department of Criminal Justice based on his
plea to one count of assault, family violence, alleged in a pre-grand jury information. Because the
trial court did not follow the plea agreement, Garza maintained the right to appeal his sentence.
On appeal, Garza contends as follows: (1) the trial court erred in adjudicating Garza’s guilt
prior to informing Garza whether the trial court would follow the recommendation; (2) the trial
court erred in usurping the plea-bargaining power that belongs exclusively to the parties; (3) the
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trial court erred by failing to affirmatively inquire whether Garza wished to withdraw his plea of
no contest; and (4) his defense counsel provided ineffective assistance of counsel. We affirm the
trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. July 24, 2015 Plea Hearing
On July 24, 2015, Garza appeared before the trial court on a felony information. Garza
agreed to several waivers, including waiving an indictment, the reading of the information, and
presentation to a grand jury. Garza also affirmed he desired to waive his right to trial by jury, right
to confront witnesses, and right against self-incrimination. The trial court approved the waivers
and read the plea agreement into the record. The trial court told Garza that he would be informed,
prior to the entry of his plea, whether the trial court would follow the agreement.
This details for me your punishment agreement with the State. And I will let you
know if I’m going to follow it prior to the entry of the plea. It says punishment will
be assessed at five years in the Texas Department of Corrections. There will be a
$1,500.00 fine. There is no application for community supervision, deferred
adjudication. And there will be an affirmative finding of family violence. So it’s
five years to do, sir; do you understand that?
Garza confirmed the trial court properly stated the plea agreement.
The trial court further reiterated that if it chose not to follow the plea agreement, Garza
would maintain his right to appeal. Garza subsequently entered a plea of no contest, and the trial
court made the following pronouncements:
I find that the evidence is sufficient to support the plea.
Sir, I find your plea was voluntarily made, there’s sufficient evidence to
support the plea, and that you’re mentally competent to enter into such a plea. I
find you guilty, sir.
Based on the trial court’s inquiry regarding Garza’s past, the prosecutor informed the trial court
that Garza
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. . . has a conviction for murder and a conviction for indecency with a child by
contact, possession of drugs. Excuse me. A possession of marijuana, two ounces
or less. As well as theft offenses.
The trial court ordered a pre-sentence investigation hearing and reset the matter for sentencing.
B. August 13, 2015 Sentencing Hearing
On August 13, 2015, the matter was re-called for sentencing. There was some discussion
on the record regarding whether Garza denied causing injury to the alleged victim. Garza
acknowledged before the trial court that he “punched her repeatedly in the face” and “stomped on
her ankles to try to break her ankles,” all to ensure that she could never leave him.
The trial court reiterated its previous determination that Garza’s plea was voluntarily made,
there was sufficient evidence to support his plea, and Garza was mentally competent to enter the
plea. The trial court continued,
Sir, I’m going to sentence you to ten years in the Texas Department of Corrections.
That actually is higher than your plea bargain, sir. I’ll let you confer with your
attorney as far as what you would like to do as far as your plea is concerned. I will
give you credit for time served.
The parties conferred off the record. When the parties returned, Garza’s defense counsel made the
following announcement:
The defendant, Jesse Garza, has decided to go with the ten years, Your Honor. With
his back time, of course.
The trial court further explained that because it did not follow the plea bargain, Garza maintained
the right to appeal, and this appeal ensued.
Although Garza raises four separate issues on appeal, the crux of his argument is his
defense counsel’s failure to provide effective assistance of counsel. Specifically, Garza contends
his defense counsel failed to object when the trial court erred in (1) adjudicating Garza guilty
without first informing Garza of its intent to follow or reject the plea bargain agreement, (2)
injecting itself into the plea-bargaining process, and (3) failing to confirm whether Garza desired
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to withdraw his plea in light of the trial court’s failure to follow the plea bargain agreement.
Accordingly, we analyze each allegation under the auspices of Garza’s ineffective assistance of
counsel issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review
In Strickland v. Washington, 466 U.S. 668, 687, 694 (1984), the United States Supreme
Court set out a two-prong test to determine whether trial counsel’s representation was ineffective:
(1) “[t]he defendant must show that counsel’s performance was deficient” and (2) “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 687, 694; accord Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App.
2013); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Ex parte Moore, 395 S.W.3d
at 157 (citing Strickland, 466 U.S. at 687).
When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the
defendant bears the burden of proof to affirmatively show that counsel’s representation “‘fell
below an objective standard of reasonableness’ under prevailing professional norms.” Id. (quoting
Strickland, 466 U.S. at 687–88); see also Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim.
App. 2011). To prove harm, Garza “must demonstrate that he was prejudiced by his attorney’s
performance or that ‘there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’” Id. at 158 (footnote omitted) (quoting
Strickland, 466 U.S. at 694).
Additionally, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999); accord Burgess v. State, 448 S.W.3d 589, 602 (Tex.
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App.—Houston [14th Dist.] 2014, no pet.). “There is a strong presumption that counsel’s conduct
fell within the wide range of reasonable professional assistance.” Thompson, 9 S.W.3d at 813.
Therefore, Garza “‘must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting
Strickland, 466 U.S. at 689).
Appellate courts further view matters “from the viewpoint of an attorney at the time he
acted, not through 20/20 hindsight.” Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.
2012); accord Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014). Our review of
trial counsel’s actions is “highly deferential and presumes that counsel’s actions fell within the
wide range of reasonable and professional assistance.” Garza v. State, 213 S.W.3d 338, 348 (Tex.
Crim. App. 2007) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)); see also
Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, pet. ref’d) (affirming
that in the absence of a developed record, an appellate court should not “speculate as to the reasons
why trial counsel acted as he did, rather a reviewing court must presume that the actions were
taken as part of a strategic plan for representing the client.”). Moreover, an “appellate court should
not find deficient performance unless the challenged conduct was ‘so outrageous that no competent
attorney would have engaged in it.’” Menefield, 363 S.W.3d at 593 (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
B. Unpreserved Trial Court Error
Garza raises several allegations of trial court error. For each, the State contends, and Garza
concedes on appeal, that Garza’s defense counsel failed to raise an objection before the trial court,
and thus the errors were not preserved for appeal. We agree.
Texas Rule of Appellate Procedure 33.1(a) mandates that for a party to preserve error, the
defendant must present a timely objection to the trial court, state the specific grounds for the
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objection, and obtain a ruling. TEX. R. APP. P. 33.1(a). Because Garza’s defense counsel failed to
raise objection to any of his alleged errors on appeal, he failed to preserve error. Id.; see also
Hinojosa v. State, 433 S.W.3d 742, 761 (Tex. App.—San Antonio 2014, pet. ref’d). Accordingly,
Garza has waived appellate review on these claims individually.
However, because these same objections are the basis for Garza’s contention that he did
not receive effective assistance of counsel, we address each in terms of counsel’s performance.
1. Adjudicated Guilty Without First Being Informed Whether Trial Court Would
Follow or Reject the Plea Agreement
Garza relies on Papillion v. State, 908 S.W.2d 621, 624 (Tex. App.—Beaumont 1995, no
pet.), for the proposition that the trial court’s pronouncement that Garza was guilty of the charged
offense, before informing Garza of whether the trial court would accept or reject the plea bargain,
was reversible error. Specifically, Garza contends the trial court erred by finding Garza guilty
without (1) “informing [Garza] whether the court accepts or rejects the said negotiated punishment
recommendation,” and (2) “affirmatively inquiring as to whether or not [Garza] wishe[d] to
withdraw his plea of guilty” when the trial court rejected the sentenced recommendation. Id.
In Papillion, the trial court accepted the plea agreement and guilty plea and then instructed
Papillion that if he failed to either participate in the presentence investigation or appear at the
sentencing hearing, the trial court would not be bound by the plea agreement. Id. When Papillion
failed to adhere to one of the trial court’s additional conditions, the trial court assessed a greater
punishment than was contained within the agreed plea agreement. Id. The court of appeals
reversed the conviction because the trial court “made acceptance or rejection of said plea bargain
contingent on whether or not appellant complied with said additional, non-negotiated terms.” Id.
During Garza’s plea hearing, the trial court inquired as follows:
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Trial Court: If I don’t follow your plea bargain, sir, I will allow you to withdraw
the plea and we’ll proceed to trial as if this hearing never occurred;
do you understand that?
Garza: Yes, sir.
Garza subsequently entered a plea of no contest and the trial court found him guilty of the charged
offense. The matter was reset for sentencing to allow for the preparation of a presentence
investigation report.
On August 14, 2015, in addition to reviewing the documents contained within the trial
court’s file, the trial court heard testimony from Garza and arguments of counsel. The trial court
announced it did not intend to follow the plea agreement and recessed the proceedings to allow
Garza an opportunity to discuss his options with his defense counsel. When the matter was
recalled, Garza’s defense counsel announced that Garza “decided to go with the [the trial court’s
sentence of] ten years.”
Contrary to Garza’s contentions, Garza entered a plea of no contest and was informed he
would be able to withdraw his plea if the trial court did not follow the plea agreement. When the
trial court made a determination that the assessment of punishment would fall outside the plea
agreement, the trial court followed the requirements of article 26.13(a)(2) and provided Garza an
opportunity to withdraw his plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (West Supp.
2015). Garza chose not to do so. Accordingly, the trial court did not err and we overrule this issue
on appeal.
2. Trial Court Usurped Plea-Bargaining Power
Garza next contends the trial court “usurped [the] plea bargaining power that belongs
exclusively to the parties.” A plea bargain is a contract between the State and the defendant, and
they are bound by the terms of that agreement upon acceptance by the trial court. Moore v. State,
295 S.W.3d 329, 331 (Tex. Crim. App. 2009). “The only proper role of the trial court in the plea-
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bargain process is advising the defendant whether it will ‘follow or reject the [agreement]. . . .’”.
Id. at 332; see also Coleman v. State, 756 S.W.2d 347, 349 (Tex. App.—Houston [14th Dist.]
1988, no pet.) (holding trial court should avoid involvement in plea negotiations).
Garza maintains the trial court involved itself in the negotiations and thus took part in plea
negotiations. See Doyle v. State, 888 S.W.2d 514, 517–18 (Tex. App.—El Paso 1994, pet. ref’d);
Coleman, 756 S.W.2d at 349. To the contrary, the evidence supports that Garza was given the
opportunity to decide whether to withdraw his plea and he chose to proceed based on the trial
court’s ten-year sentence. Accordingly, we conclude Garza failed to show that the trial court either
inserted itself into the negotiations or was part of the plea bargaining process. See Doyle, 888
S.W.2d at 517–18; Coleman, 756 S.W.2d at 349; see also Jennings v. State, 754 S.W.2d 389, 390
(Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).
3. Trial Court Failed to Make an Affirmative Determination Whether Garza Wished
to Withdraw His Plea of No Contest
Garza next argues the record does not reflect an affirmative determination that Garza did
not wish to withdraw his guilty plea. Article 26.13(a)(2) of the code of criminal procedure provides
that, if the court rejects the plea-bargain agreement, the defendant shall be permitted to withdraw
his guilty plea. TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2). During the sentencing hearing,
Garza affirmed that he committed the offense, that he knew the victim was injured, and that he
caused her injuries. Prior to imposition of sentence, the trial court informed both defense counsel
and Garza that the court did not intend to impose a sentence in accordance with the five-years’
confinement set forth in the plea agreement.
The trial court took a brief recess and when the parties returned, defense counsel announced
Garza desired to proceed to sentencing. We remain mindful that Garza’s entry of the pre-
indictment plea, even for the full ten-year sentence, allowed Garza to be sentenced well below the
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twenty-five year minimum confinement for a habitual offender. See TEX. PENAL CODE ANN.
§ 12.42(d) (setting forth penalty range of “imprisonment in the Texas Department of Criminal
Justice for life, or for any term of not more than 99 years or less than 25 years”); Mendez v. State,
138 S.W.3d 334, 350 (Tex. Crim. App. 2004) (concluding that “[i]f [pleading guilty] had been in
his interest to do so, he would have known it.”).
“[C]ourts routinely rely on counsel’s statements during oral argument and rely on these
representations when deciding cases.” Matthews v. State, 165 S.W.3d 104, 110 (Tex. App.—Fort
Worth 2005, no pet.); see also Quesada v. State, 751 S.W.2d 309, 311 (Tex. App.—San Antonio
1988, no pet.) (concluding “the court was entitled to rely upon the statement of defense counsel
[about] the admissibility of the video”). “Reliance on counsel’s statements is justified by Rule
3.03 of the Texas Disciplinary Rules of Professional Conduct, which forbids a lawyer from making
a false statement of material fact to a tribunal . . . .” United States Gov’t v. Marks, 949 S.W.2d
320, 327 (Tex. 1997). Absent any evidence to the contrary, the trial court reasonably relied on
defense counsel’s representation of Garza’s decision to proceed with his guilty plea and the trial
court’s sentence of ten-years’ confinement—even in light of a sentence in excess of the plea
agreement with the State.
C. Analysis
We are not to second guess counsel’s strategy through hindsight, nor will the fact that
another attorney might have pursued a different course support a finding of ineffectiveness. Blott
v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). Moreover, counsel is typically not
ineffective for following the wishes of his or her client. See, e.g., Jackson v. State, 76 S.W.3d 798,
802 (Tex. App.—Corpus Christi 2002, no pet.). The record before this court fails to establish, by
a preponderance of the evidence, that defense counsel’s challenged conduct was not reasonable
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under the totality of the circumstances and prevailing professional norms. We, therefore, conclude
Garza failed to satisfy the first prong of the Strickland test. We affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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