Modified and Affirmed and Opinion Filed July 11, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00808-CR
FLAVIO RENTERIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1353428-M
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Miskel
Opinion by Justice Reichek
Flavio Renteria appeals his conviction for the offense of possession of a
firearm by a felon. Bringing five issues, appellant contends (1) his right to maintain
his innocence was overcome by his counsel, (2) he was denied effective assistance
of counsel, (3) his plea of true was not entered intelligently and voluntarily, (4) the
bill of costs erroneously includes a fine, and (5) the judgment does not accurately
reflect the conditions of community supervision he was found to have violated. We
agree the fine should be struck and the judgment modified to reflect the correct
findings. In all other respects, we affirm the trial court’s judgment.
Background
In July 2014, appellant was indicted for unlawful possession of a firearm by
a felon. Appellant pleaded guilty pursuant to a plea bargain agreement and was
placed on deferred adjudication probation.
In 2016, the State filed two motions seeking to proceed with an adjudication
of guilt based on multiple alleged violations by appellant of the terms of his
probation. The first motion was withdrawn by the State, and appellant was
continued on probation with modified conditions. The second motion resulted in a
trial court order extending appellant’s probation.
On November 7, 2018, the State filed a third motion to revoke appellant’s
probation and proceed with an adjudication of guilt. The State alleged appellant had
violated seven terms of his probation. A warrant was issued for his arrest, and
appellant was taken into custody on April 29, 2022.
At trial, the State abandoned all but three of its allegations of probation
violations: (1) failure to report to the community supervision office; (2) failure to
participate in substance counseling; and (3) failure to participate in the Smart Start
IN-HOM Program. Appellant stated he understood the allegations and, after
acknowledging he had the right to plead “not true” and require the State to prove its
case, he pleaded “true” to all three. Appellant further stated he understood there was
no plea bargain agreement and the judge could sentence him to up to ten years in
prison. Finally, appellant stated he was satisfied with his representation, his plea
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was made freely and voluntarily, and the only reason he was pleading true was
because the allegations were true.
Defense counsel then called appellant to testify. Appellant described his
background and living situation. He explained that he had four children and the only
reason he possessed a gun was to protect his family. When questioned why he failed
to report to the community supervision office for four years, appellant responded
that he had been struggling with paying rent and moving his family around.
Appellant acknowledged he knew it was important to stay in contact with the
probation department and stated he had “made a big mistake.” Appellant also
acknowledged this was not the first time he had been brought before the court for
failing to comply with the terms of his probation. Based on the evidence presented,
the trial court found the State’s allegations true and sentenced appellant to ten years
in prison.
Appellant filed a motion for new trial asserting he had received ineffective
assistance of counsel. In an affidavit attached to the motion, appellant stated the first
time he met with his counsel, Mark Rosteet, was on the day of his revocation hearing.
According to appellant, Rosteet did not explain the consequences of entering an open
plea, did not discuss any option with him other than entering an open plea, and did
not advise him that he could be assessed the maximum sentence of ten years in
prison. Appellant stated that, if Rosteet had told him he could be sentenced to ten
years in prison, he would not have entered an open plea of “true.”
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At the hearing on appellant’s motion, Rosteet admitted he did not meet with
appellant until the day of the revocation hearing. Before that, however, Rosteet
made multiple attempts to negotiate a plea bargain agreement with the State on
appellant’s behalf. Because his attempts to obtain an agreement were unsuccessful,
Rosteet felt appellant’s best chance for receiving a light sentence was to plead true
to the allegations and ask for the mercy of the court. Rosteet believed the State
would have little trouble proving its chief allegation against appellant since appellant
acknowledged he had not reported to the community supervision office for several
years.
Rosteet testified his meeting with appellant lasted for over an hour. During
that time, Rosteet informed appellant his punishment would be determined by the
judge because the State was not willing to enter into a plea agreement. Rosteet
further told appellant that he did not have to plead “true” and explained both the
range of punishment and the possibility that appellant could receive the maximum
sentence. Rosteet stated he believed appellant understood what he was told and he
denied coercing appellant’s plea in any manner.
During closing argument, the defense argued that Rosteet’s representation of
appellant was ineffective under the standards set forth in Strickland v. Washington,
466 U.S. 668 (1984). Counsel asserted that Rosteet’s failure to meet with appellant
until the day of the hearing, and his informing appellant that he “had to go to the
judge,” rendered appellant’s plea of “true” involuntary. The State responded that
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appellant had failed to meet the Strickland test because appellant was given all the
necessary information before entering his plea and there was no showing the
outcome of the case would have been different if appellant had pleaded “not true.”
The trial court denied appellant’s motion for new trial. In its findings of fact
and conclusions of law, the court found appellant was informed of the consequences
of his plea by both his attorney and the court. The court additionally held appellant
failed to show that, but for Rosteet’s representation, there was a reasonable
probability the outcome of the proceeding would have been different. The court
noted that appellant failed to report to his probation officer for over four years and
this was the third revocation motion filed against him.
Analysis
I. McCoy v. Louisiana
In his first issue, appellant contends his counsel did not give him a “real
choice” other than to plead true to the State’s allegations. Because of this, appellant
argues he was deprived of his right to maintain his innocence in violation of McCoy
v. Louisiana, 138 S.Ct. 1500 (2018). The State responds that appellant waived any
McCoy issue by failing to raise it prior to appeal.
In Turner v. State, the Texas Court of Criminal Appeals held that “a defendant
cannot simply remain silent before and during trial and raise a McCoy complaint for
the first time after trial.” Turner v. State, 570 S.W.3d 250, 276 (Tex. Crim. App.
2018). Although the defendant need not object with the precision of an attorney, he
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must sufficiently express his desire to maintain his innocence to preserve the issue
for review. Id. In Harrison v. State, the Houston 14th Court of Appeals concluded
that, when an attorney withholds information relevant to whether the defendant
would want to maintain his innocence, the defendant preserves a McCoy complaint
if he objects as soon as the withheld information becomes known. Harrison v. State,
595 S.W.3d 879, 885 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). Appellant
relies on Harrison to contend his McCoy issue was preserved because he “did not
know that he could be sentenced to the maximum sentence until it actually happened,
and he raised his objection at the first available opportunity which was in his motion
for new trial.”1 Appellant’s argument is not supported by the record.
Appellant’s trial counsel, Rosteet, testified he advised appellant before the
revocation hearing of the consequences of pleading “true” and warned him that he
could be given the maximum ten year sentence. The trial court found Rosteet’s
testimony credible, and we defer to the trial court’s resolution of historical facts. See
Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002) (en banc). Furthermore,
the record shows that, before accepting appellant’s plea, the trial court informed
appellant he had the right to plead “not true” and admonished him that he could be
sentenced to ten years in prison. Rather than objecting or requesting to withdraw his
1
The State argues appellant’s motion for new trial did not assert a McCoy complaint. We assume
without deciding the motion sufficiently raised the issue.
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plea, appellant stated he understood and acknowledged the only reason he was
pleading true was because the allegations were true. Because appellant did not
express a desire to maintain his innocence as soon as he was provided with all the
information relevant to his plea, we conclude he failed to preserve a McCoy issue
for our review. See Turner, 570 S.W.3d at 276; Harrison, 595 S.W.3d at 885. We
resolve appellant’s first issue against him.
II. Ineffective Assistance
In his second issue, appellant contends he received ineffective assistance of
counsel. Appellant argues Rosteet’s failure to meet with him until the day of the
revocation hearing, and “misinforming” him that he “had to go to the judge,” fell
below an objective standard of reasonableness. To succeed in showing ineffective
assistance of counsel, an appellant must demonstrate both that his counsel’s
representation fell below an objective standard of reasonableness and that the alleged
deficient performance prejudiced the defense. See Strickland v. Washington, 466
U.S. 668, 687 (1984). Appellant bears the burden of proving his counsel was
ineffective by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance and was
motivated by legitimate trial strategy. See Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994).
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In his affidavit, appellant testified Rosteet told him his punishment “would be
up to the judge.” This is an objectively true statement. To the extent appellant
appears to argue this statement led him to believe he had to plead “true,” both Rosteet
and the trial court informed appellant he had the right to plead “not true” and he
could require the State to prove its case. Rosteet simply advised appellant that, based
on the strength of the State’s case, the better strategy was to plead “true” and ask for
the court’s mercy. Nothing in the record suggests appellant was coerced into
following this advice. Nor does appellant argue the advice was so outrageous that
no competent attorney would have offered it. See Ex parte Harrington, 310 S.W.3d
452, 458 (Tex. Crim. App. 2010); Jones v. State, No. 05-19-01282-CR, 2021 WL
194107, at *3 (Tex. App.—Dallas Jan. 20, 2021, no pet) (mem. op., not designated
for publication) (advising defendant to plead guilty in hope of leniency not
ineffective assistance).
Although Rosteet should have met with appellant earlier,2 there is no showing
his failure to do so prejudiced appellant. “[T]he correct measure of prejudice for an
attorney’s deficient performance that might have caused a defendant to waive a
judicial proceeding is whether there is a reasonable likelihood that the defendant
would have opted for the proceeding if his attorney had performed adequately.”
Miller v. State, 548 S.W.3d 497, 502 (Tex. Crim. App. 2018). Before meeting with
2
See TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(1) (appointed attorney shall “make every reasonable
effort to contact the defendant not later than the end of the first working day after the date on which the
attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed”).
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appellant, Rosteet made multiple attempts to negotiate a plea bargain agreement on
his behalf. During their meeting, Rosteet informed appellant that the State was not
willing to enter into a plea agreement, and explained the available options, the range
of sentencing, and the strength of the State’s case. Appellant conceded at the hearing
that he had “made a big mistake” by not reporting to the probation office for four
years and asked for leniency. Based on the record before us, we cannot say there is
a reasonable likelihood appellant would have pleaded “not true” if he had met with
Rosteet earlier. We resolve appellant’s second issue against him.
III. Due Process
In his third issue, appellant contends his constitutional right to due process
was violated because his plea was not made intelligently and voluntarily. A guilty
plea must be entered knowingly, intelligently, and voluntarily to be consistent with
due process. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).
Appellant argues again that he did not fully understand the consequences of his plea
because he did not know at the time he entered the plea that he could be sentenced
to ten years in prison. We determine the voluntariness of a guilty plea from the
totality of the circumstances viewed in light of the entire record. Ducker v. State, 45
S.W.3d 791, 796 (Tex. App.—Dallas 2001, no pet.). A defendant’s sworn
representation that his plea is voluntary constitutes a “formidable barrier” in any
subsequent proceeding. Kniatt, 206 S.W.3d. at 664.
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Appellant’s argument that his plea was not made intelligently and voluntarily
depends largely upon the credibility of his account of what occurred in his meeting
with Rosteet. As discussed above, the trial court, as fact finder, determined that
Rosteet’s testimony concerning what he told appellant in their meeting was credible,
and we defer to that finding. See Manzi, 88 S.W.3d at 244.
Rosteet stated that, before appellant entered his plea, he told appellant the trial
court could sentence him to up to ten years in prison. Rosteet’s testimony is
supported by the fact that, during the hearing, appellant stated he understood if he
pleaded true to the State’s allegations he could be sentenced to ten years in prison.
Although appellant may have hoped his willingness to plead “true” and take
responsibility for his actions would result in a lesser sentence, his decision to follow
an unsuccessful strategy does not render his plea unknowing, unintelligent, or
involuntary. See Graves v. State, 803 S.W.2d 342, 345 (Tex. App.—Houston [14th
Dist.] 1990, pet ref’d). We resolve appellant’s third issue against him.
IV. Fine
In his fourth issue, appellant contends the bill of costs in this case erroneously
reflects a fine that was neither orally pronounced by the trial court during sentencing
nor included in the judgment. The State agrees, as do we, that the fine was assessed
in error. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). We are
authorized to order a modification of a bill of costs independent of finding an error
in the trial court’s judgment. Rodgers v. State, 05-20-00211-CR, 2022 WL 1076067,
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at *5 (Tex. App.—Dallas April 11, 2022, no pet.) (mem. op., not designated for
publication). Concluding the fine should be struck, we sustain appellant’s fourth
issue.
V. Modification of Judgment
In his final issue, appellant contends the trial court’s judgment does not
accurately state the conditions of probation he was found to have violated. The
judgment states appellant violated conditions “D, V, & 3” of his community
supervision. In contrast, the record shows the trial court found appellant violated
conditions D, U, and Z. We have the power to modify a judgment to speak the truth
when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b);
Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc). Accordingly we
modify the judgment to delete conditions “V” and “3” and replace them with
conditions “U” and “Z.”
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VI. Conclusion
Based on the foregoing, we modify the bill of costs to remove the $2,000 fine.
We also modify the trial court’s judgment to delete conditions “V” and “3” and
replace them with conditions “U” and “Z.” In all other respects, the trial court’s
judgment is affirmed.
/Amanda L. Reichek//
AMANDA L. REICHEK
220808f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FLAVIO RENTERIA, Appellant On Appeal from the 194th Judicial
District Court, Dallas County, Texas
No. 05-22-00808-CR V. Trial Court Cause No. F-1353428-M.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek. Justices Partida-Kipness
and Miskel participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We DELETE conditions “V” and “3” and REPLACE them
with conditions “U” and “Z.”
As REFORMED, the judgment is AFFIRMED.
We also MODIFY the bill of costs to DELETE the $2,000 fine.
Judgment entered this 11th day of July, 2023.
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