Salvador Catete v. State ( 2000 )

NUMBER 13-99-535-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

SALVADOR CATETE

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 94th District Court of Nueces County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Appellant, Salvador Catete, entered an agreed plea of guilty to the offense of aggravated sexual assault and indecency with a child.⁽¹⁾ Pursuant to the plea bargain, the court sentenced Catete to ten years imprisonment. Catete filed a pro se notice of appeal claiming trial counsel was ineffective because he could not communicate with Catete in Spanish. The trial court has appointed three appellate counsel to represent Catete over the course of this appeal.⁽²⁾

By one issue in his amended brief, Catete contends he was denied his constitutional right to assistance of counsel during the critical period when a motion for new trial could have been filed. By a supplemental issue, Catete also complains his counsel was ineffective, rendering his plea involuntary. Appellee, the State of Texas, urges this Court to dismiss the appeal for want of jurisdiction because Catete has no basis for an appeal from the plea-bargained judgment. The State also contends that nothing in the record rebuts the presumption that trial counsel rendered effective representation. We affirm.

Before reaching the merits of the case, we address the State's contention that this Court lacks jurisdiction to consider this appeal. Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure provides that following an agreed plea of guilty, and where the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must specify that (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) state that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(c). Because Catete appeals from a judgment rendered on a plea of guilty pursuant to a plea bargain, and the punishment assessed was within the range agreed to by the prosecutor and the defendant, we must consider the threshold issue of whether Catete's general notice of appeal is sufficient to confer jurisdiction on this Court.

Catete asserts no jurisdictional defects.⁽³⁾ Further, Catete does not contend that his appeal is from an issue raised by written motion and ruled on before trial. Finally, while Catete's pro se notice of appeal states he is requesting an appeal, it does not set out that the court granted him permission to appeal.

However, Catete also raises a voluntariness challenge. This Court recently joined the majority of Texas appellate courts in concluding that voluntariness of a plea may be raised by general notice of appeal. See Marshall v. State, No. 13-99-00153-CR, 2000 Tex. App. LEXIS 5427 (Corpus Christi August 10, 2000, no pet.). Therefore, we hold that Catete's general notice of appeal is sufficient to invoke this Court's jurisdiction to consider the voluntariness of his plea.

By his voluntariness issue in his supplemental brief, Catete contends that his trial counsel was ineffective because counsel inadequately investigated whether a plea was advisable. Catete argues that this alleged inadequate investigation rendered his plea involuntary. Specifically, Catete complains the record demonstrates that no pretrial motions were filed and that the following matters demanded more investigation prior to his entering a plea bargain: (1) the victim's mother's statements that (a) the victim was prone to lying, and (b) in the absence of evidence of trauma, she would not believe the accusation; and (2) the frailty of the case against Catete in light of the plea offer that was made in comparison to the offers (or lack thereof) made in similar cases filed in Nueces County. Catete also asserts that communication problems between himself and trial counsel impacted the voluntariness of his plea.⁽⁴⁾

To succeed on a claim that his plea was involuntary due to ineffective assistance of counsel, Catete must demonstrate from the record that (1) counsel's assistance was outside the range of competence demanded of attorneys in criminal cases, and (2) there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984)); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (habeas Corpus proceeding) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985) (federal habeas Corpus proceeding). A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. See id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness of counsel. See id.

The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. See id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Before a plea of guilty may be accepted by the court it must be freely and voluntarily given by a mentally competent defendant. See Tex. Crim. Proc. Code Ann. art. 26.13(b) (Vernon Supp. 2000). The constitutional validity of a guilty plea made upon the advice of counsel depends on whether counsel's performance was reasonably competent, providing a defendant effective representation during the particular proceedings. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). A defendant's election to plead guilty when based on erroneous advise of counsel is not done voluntarily and knowingly. See id.

In the instant case, the record reflects that when the plea bargain was presented to the trial court, an interpreter was present to assist Catete. He acknowledged that he visited with his attorney. They discussed everything the State would have to prove in order for him to be found guilty, as well as any possible defenses he might have. They also discussed Catete's constitutional rights. The judge asked Catete whether he had signed the written admonishments and whether his attorney had gone over the documents carefully with him. The trial court asked if Catete felt he understood what was explained. Catete answered in the affirmative to all of these questions. Catete then pleaded "Guilty."

The judge asked Catete and his counsel questions about any mental illness for which Catete may have been treated. There were none. The judge asked counsel whether he believed Catete was mentally competent for trial, fully understood the nature of the proceedings, and had been able to effectively assist in the development of any defenses he might have, to which counsel responded in the affirmative. The State presented the plea bargain. Trial counsel indicated that nothing had been left out; that he discussed the plea with Catete; that Catete told him that he understood the plea; and that counsel did, in fact, speak Spanish. The judge asked Catete whether the plea bargain was what he understood, whether the State had left anything out, whether he had discussed it with his attorney, and whether he was in agreement. Catete responded that the stated agreement was the one he understood, nothing had been left out, he had discussed the plea bargain with his attorney and was in agreement. The trial court then found Catete was mentally competent and that the plea was made freely and voluntarily.

Catete acknowledges that no record exists to substantiate his claims that further investigation was needed. The record before this Court does not establish whether or not counsel investigated the victim's mother's statements, or whether counsel examined the frailty of his client's case in light of plea offers made in similar cases filed in Nueces County. The record does, however, reflect that his trial counsel represented to the court that he spoke Spanish and that Catete understood the nature of the proceedings. Catete himself represented to the trial court that his attorney discussed the charges against him, as well as possible defenses. Catete also informed that court that he had discussed the plea bargain with his attorney and that he was in agreement with it. Nothing in the record refutes these assertions.

Under these circumstances, and in light of the record and the presumption that counsel's performance was reasonably professional, we cannot conclude that Catete received ineffective assistance of counsel, rendering his plea involuntary. See Gottson v. State, 940 S.W.2d 181, 185-86 (Tex. App.--San Antonio 1996, pet. ref'd). Accordingly, Catete has not proven by a preponderance of the evidence that counsel's alleged failure to investigate or the alleged communication problem was outside the wide range of competence demanded of attorneys in criminal cases. Further, Catete has failed to prove that this alleged deficient performance caused him to enter a guilty plea. We overrule Catete's voluntariness issue.

The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and

filed this the 26th day of October, 2000.

1. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2000).

2. After filing an Anders brief, Catete's first appellate counsel was allowed to withdraw. He was replaced by a second appellate counsel who filed an amended brief arguing that Catete was denied his constitutional right to assistance of counsel during a critical period when a motion for new trial could have been filed. Subsequently, the second appellate counsel sought to withdraw after accepting a new position as assistant district attorney, and a third counsel was appointed. With leave of this Court, Catete's third counsel filed a supplemental brief addressing the voluntariness of his plea as it was impacted by alleged ineffective assistance of counsel.

3. Catete's claim that he was denied his constitutional right to assistance of counsel during the critical period when a motion for new trial could have been filed, does not raise a jurisdictional issue, for it is merely a contention of the deprivation of a constitutional guarantee. See Godbehere v. State, 882 S.W.2d 57, 58 (Tex. App.--Amarillo 1994, no pet.) (citations omitted). Thus, it is not preserved by a general notice of appeal. See id.

4. Catete further complains that his trial counsel failed to continue to consult with and advise him after the plea, to assure his concerns regarding his plea were addressed to the appellate courts. However, Catete had already entered his plea before this alleged failure occurred. Therefore, while this complaint goes to Catete's ineffective assistance of counsel claim, it could not have been a factor in the voluntariness of Catete's plea. See Marshall, No. 2000 Tex. LEXIS, at *8 n.5 (not all ineffective assistance claims impact on voluntariness) (citing Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996); Moore v. State, 4 S.W.3d 269, 272 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (distinguishing claim of ineffective assistance, which court had no jurisdiction to review because of defendant's failure to comply with rule 25,2(b)(3) from claim of involuntariness which can always be challenged on appeal as fundamental right); see also Akridge v. State, 13 S.W.3d 808, 809 (Tex. App.--Beaumont 2000, no pet.) (same)). Because Catete filed a general notice of appeal, this Court does not have jurisdiction to consider this specific contention. See Tex. R. App. P. 25.2(b)(c).