PD-1552-15
PD-1552-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/30/2015 3:51:36 PM
Accepted 12/1/2015 2:18:41 PM
ABEL ACOSTA
NO. CLERK
IN THE COURT OF CRIMINAL APPEALS OF
OF THE STATE OF TEXAS
AT AUSTIN, TEXAS
No. 14-14-00817-CR
COURT OF APPEALS
IN THE
FOR THE
FOURTEENTH SUPREME JUDICIAL DISTRICT
AT HOUSTON
DYLAN CIMINERA § APPELLANT
V. §
STATE OF TEXAS § APPELLEE
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
214 Morton St.
Richmond. Tx. 77469
TBC No. 05170200
Attorney for Appellant
December 1, 2015
INTERESTED PARTIES
APPELLANT
Dylan Cirninera
Texas Department of Criminal Justice
Institutional Division
TRIAL JUDGE
Hon. Thomas R. Culver III
240"‘ District Court of Fort Bend County
TRIAL AND APPELLATE COUNSEL
Steven R. Rosen
214 Morton St.
Richmond, Texas 77469
STATE OF TEXAS
John Heaiey
District Attorney, Fort Bend County
301 Jackson St.
Richmond, Texas
Fred Felcman
Assistant District Attorney
Fort Bend County, Texas
TABLE OF CONTENTS
INTERESTED PARTIES ........................................................................................ ..2
LIST OF AUTHORITIES ........................................................................................ ..4
STATEMENT REGARDING ORAL ARGUMENT .............................................. ..5
STATEMENT OF THE CASE ................................................................................ ..6
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ................... ..7
GROUNDS FOR REVIEW ..................................................................................... ..8
GROUND FOR REVIEW NUMBER ONE
The Court of Appeals erred when it held that the trial court did not abuse its
discretion in overruling Appellant’s motion for new trial ........................... ..9
PRAYER FOR RELIEF ......................................................................................... .. 10
CERTIFICATE OF COMPLIANCE ..................................................................... ..11
CERTIFICATE OF SERVICE .............................................................................. ..11
APPENDIX A. (OPINION BELOW) ................................................................... ..12
LIST OF AUTHORITIES
%§s
Brown v. State 943 S.W. 2d 35, 43, (Tex.Crim.App. 1997) .................................. ..9
Holden v. State, 201 S.W.3d 761 (Tex.Crim.App. 2006) ....................................... ..9
Martinez v. State, 981 S.W.2d 195 (Tex.Crim. App. 1998) .................................... ..9
Smith V. State, 266 S.W.3d 333,339 (Tex.Crim.App. 2009) .................................. ..9
Williams v. State 522 S.W.2d 483, 485 (Tex.Crim.App. 1975) ............................. ..9
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that oral argument is not necessary in this case.
STATEMENT OF THE CASE
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Appellant pleaded guilty to the court to the offense of aggravated robbery. Afier
a presentence investigation and hearing the court sentenced Appellant to confinement
in the Texas Department of Criminal Justice, Correctional Division, for a period of
eight years.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant’s appeal was affirmed in an unpublished opinion of the
Fourteenth Court of Appeals rendered October 29, 2015. No motion for rehearing
was filed.
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE:
The Court of Appeals erred when it held that the trial court did not abuse its
discretion in overruling Appe1lant’s motion for new trial.
GROUND FOR REVIEW NUMBER ONE
The Court of Appeals erred when it held that trial court did not abuse its
discretion in overruling Appe1lant’s motion for new trial.
Argi_1ment and Authorities
A trial court’s ruling on a motion for new trial is reviewed under an abuse of
discretion standard. Smith v. State 266 S.W.3d 333, 339 (Tex.Crim.App. 2009). A
trial court abuses its discretion in denying a motion for new trial only when no
reasonable view of the record could support the trial court’s ruling. Holden v. State,
201 S.W.3d 761, 763 (Tex.Cn'm. App. 2006).
A guilty plea determined to be involuntary must be set aside. Williams v. State,
522 S.W.2d 483, 485 (Tex.Crim.App. 1975). Misinformation concerning a matter,
such as probation may render a guilty plea involuntary if the defendant shows that his
guilty plea was actually induced by the rnisinfomiation. Brown v. State 943 S.W.2d
35, 43 (Tex.Crim.App. 1997). In determining the voluntariness of a guilty plea the
court should examine the record as a whole. Martinez v. State 981 S.W.2d 195, 197
(Tex.Crim.App. 1998).
In Appellant’s case, although he was not specifically promised that he would
receive deferred adjudication, the summary of the discussions he had with counsel in
their entirety led him to reasonably believe that he would receive probation. The plea
was involuntary and the trial court abused its discretion in overruling his motion for
new trial. The Court of Appeals erred when it held otherwise.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court
grant this Petition for Discretionary Review, that the case be set for submission; that
after submission this Court reverse the judgement of the Court of Appeals and
remand for a new trial
Respectfully submitted,
/s/ Steven R. Rosen
Steven R. Rosen
214 Morton St.
Richmond, Tx. 77469
713-227-2900
TBC No. 05170200
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document contains 745 words, generated by
computer.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument has been e-
served to the Fort Benti County District Attomey’s Office, and to Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 7871 1, this the 30th day
of November, 2015.
/s/Steven R. Rosen
11
Affirmed and Memorandum Opinion filed October 29, 2015.
In The
Zllnurteenth (llnurt nf Appeals
NO. 14-14-00817-CR
DYLAN BRADLEY CIMINERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 13-DCR-063595
MEMORANDUM OPINION
Appellant Dylan Bradley Ciminera appeals his conviction for aggravated
robbery—serious bodily injury. In a single issue appellant contends the trial court abused
its discretion in overruling appellant’s motion for new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant entered a guilty plea to the offense of aggravated robbery—serious
bodily injury. Appellant received the panoply of admonishments required by article
26.13 of the Code of Criminal Procedure and placed his initials next to each applicable
admonishment including a paragraph admonishing appellant that the range of
punishment for the offense was five to ninety-nine years in prison. Appellant entered his
plea without an agreed recommendation on punishment and filed a motion for deferred
adjudication community supervision.
Prior to accepting appellant’s guilty plea, the trial court orally admonished him as
to the range of punishment. Appellant stated that he understood the range of
punishment, waived his right to a jury trial, and was not coerced into pleading guilty by
threats or promises. Appellant stated he had conferred with counsel and that he believed
counsel had “done a good job representing” him. Prior to hearing evidence on
punishment, the following colloquy occurred between the trial court and appellant:
[THE COURT]:All right. Before proceeding to pronounce sentence in the
case, in order to preserve the Court’s authority to consider deferred
adjudication, understanding that, Mr. Ciminera, that just Mr. Ciminera, —
while I’m preserving the right to consider it, that does not mean I’m going
to automatically grant it. You understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Has anybody promised you that if you pled guilty today and
gave up all these rights I would give you deferred adjudication?
THE DEFENDANT: No, your Honor. Mr. Levy [defense counsel] has
made that very clear to me.
At the punishment hearing both appellant and the complainant testified. They are
two recent high school graduates who were engaged in selling illegal drugs. Appellant
believed that the complainant “set him up” to be robbed. In retaliation appellant went to
the complainant’s home with a gun,‘ and demanded money from the complainant.
During the robbery appellant hit the complainant in the face, shattering his jaw. At the
'
The parties dispute whether appellant pointed the gun at the complainant or left it in his
pocket.
conclusion of the hearing, the trial court sentenced appellant to seven years in prison.
Following his sentencing appellant filed a motion for new trial in which he
alleged he received ineffective assistance of counsel, and that he was advised by counsel
Elan Levy that if he plead guilty, “it looked like the judge would give him 10 years
deferred adjudication and 6 months in jail.”
The trial court held a hearing on the motion for new trial. At the hearing,
appellant testified that he plead guilty because his counsel told him that if he went to
trial “with the evidence that they would basically crucify [him].” Appellant also testified
that Levy told him “there was a good chance that [he] would get deferred adjudication,
and that [appel1ant’s co-defendant] would not be sent to prison.” Appellant “knew there
was a possibility that [he] could get the five years,” but was confident in his lawyer’s
representation that he would get deferred adjudication and six months in county jail.
Appellant agreed that his trial counsel “worked hard” for him, answered all his and his
family’s questions, and investigated the case to the best of his ability.
Appellant’s trial counsel also testified at the hearing on the motion for new trial.
Levy testified that he requested permission to personally write the presentence
investigation (PSI) report for appellant because he felt it would aid appellant and the
court in the assessment of punishment. Levy “spent hours” with appellant to develop
appellant’s personal and social background in addition to meeting with appe1lant’s
parents in an effort to properly include information in the PSI report. Levy testified that
he did not promise appellant that he would receive deferred adjudication in exchange for
his guilty plea. At the conclusion of the hearing, the trial court denied appellant’s
motion for new trial.
ISSUE AND ANALYSIS
In a single issue, appellant contends the trial court abused its discretion in
overruling appellant’s motion for new trial. Appellant’s motion alleged that counsel
rendered inefiective assistance by misinforming appellant about the punishment he
would receive if he plead guilty.
To establish ineffective assistance of counsel, a criminal defendant must prove by
a preponderance of the evidence that (1) his trial counsel’s representation was deficient
in that it fell below the standard of prevailing professional norms and (2) there is a
reasonable probability that, but for counsel’s deficiency, the result of the proceeding
would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Failure to show either
deficient performance or sufiicient prejudice defeats the claim of ineffectiveness.
Strickland, 466 U.S. at 697.
“Misinformation concerning a matter, such as probation, about which a defendant
is not constitutionally or statutorily entitled to be informed, may render a guilty plea
involuntary if the defendant shows that his guilty plea was actually induced by the
misinformation.” Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997). However,
“a defendant’s claim he was misinformed by counsel, standing alone, is not enough for
us to hold his plea was involuntary.” Fimberg v. State, 922 S.W.2d 205, 208 (Tex.
App.—Houston [lst Dist.] 1996, pet. ref’d). A claim for ineffective assistance of
counsel must be affirmatively supported by the record. See Jackson v. State, 973 S.W.2d
954, 955 (Tex. Crim. App. 1998); Tabora v. State, 14 S.W.3d 332, 336 (Tex. App.—
Houston [l4th Dist.] 2000, no pet.). Therefore, in determining the voluntariness of a
guilty plea, the court should examine the record as a whole. See Martinez v. State, 981
S.W.2d 195, 197 (Tex. Crim. App. 1998). The court first must make a threshold
determination that counsel erroneously and incompetently advised the appellant before
the second factor, concerning prejudice to the appellant, is reached. Labib v. State, 239
S.W.3d 322, 333 (Tex. App.—Houston [lst Dist.] 2007, no pet.).
At the original plea hearing, appellant testified that he understood the court was
reserving the possibility of deferred adjudication, but was not promising to grant it.
Appellant also testified that Levy made it “very clear” to appellant that the court would
not automatically assess deferred adjudication. At the hearing on the motion for new
trial, appellant testified that he “knew there was a possibility that [he] could get the five
years,” but was confident in his lawyer’s representation that he would get deferred
adjudication and six months in county jail. Appellant’s counsel testified that he did not
advise appellant that he would receive deferred adjudication in exchange for pleading
guilty.
On appeal, appellant contends that “although he was not specifically promised
that he would receive deferred adjudication, the summary of the discussions he had with
counsel in their entirety led him to reasonably believe that he would receive probation.”
The record does not reflect that counsel erroneously and incompetently advised
appellant; therefore, appellant has failed to meet the first prong of the Strickland test.2
Accordingly, we overrule appellant’s sole issue.
'
We affirm the trial court’s judgment.
/s/ John Donovan
Justice
—
Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish Tex. R. App. P. 47.2(b).
2
which courts have held a guilty plea to have been involuntary, the record contains
In cases in
confirmation of the misinfonnation by counsel, or documents augmenting the defendant’s testimony
that reveal the misinfonnation and show its conveyance to the defendant. See, e.g., Ex parte Battle, 817
S.W.2d 8] (Tex. Crim. App. 199]); Exparte Griffin, 679 S.W.2d l5 (Tex. Crim. App. 1984); Exparte
Burns, 60] S.W.2d 370 (Tex. Crim. App. 1980); Helton v. State, 909 S.W.2d 298 (Tex. App.-
Beaumont 1995, pet. ref‘ d).