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applying harm analysis for non-constitutional error to trial court's misidentification of offense as a first-degree felony, rather than a second-degree felony, and trial court's consideration of incorrect punishment range
Summary of this case from Nichols v. StateOpinion
No. 05-03-00107-CR.
Opinion Filed August 27, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-81042-02. Reversed and Remanded.
Before Justices JAMES, FRANCIS, and LANG.
OPINION
Jose Rogelio Hernandez entered a nonnegotiated guilty plea to sexual assault of a child. The trial court assessed punishment at five years confinement. In three issues, appellant contends his plea was involuntary, he received ineffective assistance of counsel, and the trial court failed to ensure that the plea and sentencing hearings were translated by a licensed Spanish interpreter. For the reasons set forth herein, we will reverse and remand for a new punishment hearing.
The Record
In one indictment, appellant was charged with sexual assault of a child and indecency with a child. Appellant agreed to plead guilty to the sexual assault charge, and the State dropped the indecency charge. Before the plea hearing, the trial court delivered written admonishments in English to the Spanish-speaking appellant. The written admonishments state incorrectly that appellant was charged with aggravated sexual assault and state the punishment range for a first-degree felony. Despite the inaccuracy of the punishment range admonishment, appellant signed the admonishments and initialed representations that he understood the admonishments and was aware of the consequences of his plea. During the plea hearing, counsel notified the trial court that appellant did not speak English and asked permission to translate for appellant. The trial court granted counsel's request. The trial court then admonished appellant orally, incorrectly stating that appellant was charged with aggravated sexual assault and stating the first-degree felony punishment range. Appellant affirmed he understood the punishment range. To reinforce the admonishment, the trial court asked for and received appellant's assurance that appellant understood he could be sentenced to life in prison if he entered a guilty plea. When the trial court asked for appellant's plea, the following exchange occurred:[The court]: Mr. Hernandez, to Count 1 of the indictment, how do you plead, guilty or not guilty?
[Appellant]: Not over there, not over here.
[The court]: The Court does not understand your answer. Are you pleading guilty or not guilty?
[Appellant]: Yes.
[The court]: Are you pleading guilty or are you pleading not guilty?
[Appellant]: Guilty.After accepting appellant's guilty plea, the trial court passed the case for preparation of a presentence investigation report. During the sentencing hearing, both sides agreed the trial court could consider the presentence investigation report and appellant's psychological evaluation. Counsel asked the trial court to place appellant on deferred adjudication. The prosecutor informed the trial court that neither the State nor the victim's family opposed deferred adjudication, but the prosecutor was concerned about appellant's untruthfulness during his psychological examination and was concerned that if appellant was placed on community supervision, he would be deported without fulfilling the conditions of community supervision. The trial court adjudged appellant guilty of "aggravated sexual assault of a child" and assessed punishment at five years confinement.
Involuntary Plea
In his first issue, appellant contends his guilty plea was involuntary because the judge incorrectly admonished appellant and mistakenly sentenced appellant for the first-degree felony of aggravated sexual assault. The State responds that the admonishments substantially complied with the admonishment statute and appellant has not shown he was harmed. Sexual assault of a child is a second-degree felony carrying a punishment range of two to twenty years confinement and a fine of up to $10,000. See Tex. Pen. Code Ann. §§ 12.33, 22.011(a)(2), (f) (Vernon 2003). The trial court admonished appellant that he was charged with the first-degree felony offense of aggravated sexual assault and that the punishment range for his offense was five to ninety-nine years or life confinement and a fine of up to $10,000. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003) (establishing punishment range for first-degree felonies). Thus, the trial court's punishment range admonishment was inaccurate. Appellant contends the admonishment error requires harmless error review. See Tex.R.App.P. 44.2(b). We disagree. Before accepting a guilty plea, the trial court must admonish the defendant of the consequences of his plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003). Admonishments that substantially comply with the requirements of article 26.13 satisfy that statute's requirements. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989). If the trial court wholly fails to give a punishment admonishment, the trial court's admonishments do not substantially comply with article 26.13(a). See Carranza v. State, 980 S.W.2d 653, 655-56 (Tex.Crim.App. 1998). Thus, a total failure to deliver any punishment admonishment is error subject to harmless error review under rule 44.2(b). See Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App. 1999). When, however, the trial court delivers an incorrect punishment range admonishment and then assesses punishment that falls within both the actual and stated punishment ranges, the trial court's admonishment substantially complies with article 26.13. See Robinson v. State, 739 S.W.2d 795, 801 (Tex.Crim.App. 1987) (per curiam). We apply the harm analysis contained in article 26.13(c). The defendant's acknowledgment of his understanding of admonishments given in substantial compliance with article 26.13 creates a prima facie showing that his plea was voluntary. The burden then shifts to the defendant to affirmatively show he did not understand the consequences of his plea and that he was harmed or misled by the admonishments. Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd); Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.); see also Tex. Code Crim. Proc. Ann. art. 26.13(c). Appellant contends his failure to object to the inaccurate written and oral admonishments shows he did not understand the consequences of his plea. Appellant contends he was harmed in that the trial court might have granted him deferred adjudication if it had realized his offense was not aggravated, especially in light of the prosecutor's representation that neither the victim, nor the State opposed his request for deferred adjudication. Alternatively, appellant theorizes the trial court thought it was giving him the minimum prison sentence when it assessed the five-year sentence. In raising these contentions, appellant confuses harm from the admonishments with harm from the trial court's misunderstanding of his plea. Assuming, without deciding, that appellant has met his burden to show he did not understand the consequences of his plea, nothing in the record shows appellant would not have entered his guilty plea had he known that the punishment range was lower than what the trial court had represented. In fact, the record supports the opposite conclusion. Appellant was seeking deferred adjudication community supervision, which is only available to defendants who plead guilty or nolo contendere. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2003). Appellant was willing to plead guilty even when he believed he could be sentenced to life in prison as a consequence of his plea. Therefore, we conclude the trial court's incorrect admonishment did not harm or mislead appellant. See Grays, 888 S.W.2d at 878. We resolve appellant's complaint about the incorrect punishment admonishment against him. Having concluded appellant's guilty plea was not rendered involuntary by the incorrect admonishment, we must, however, consider whether the trial court's misapprehension of the offense and punishment range justifies reversal of appellant's conviction. The trial court repeatedly referred to the offense as "aggravated sexual assault" and repeatedly described the punishment range as having a minimum punishment of five years confinement. Thus, the record contains indications the trial judge believed he was assessing the minimum punishment, as appellant suggests. Under identical circumstances, the court of criminal appeals held an appellant was entitled to remand for a new punishment hearing. See Borrego v. State, 558 S.W.2d 1, 1-2 (Tex.Crim.App. 1977); see also Ex parte Gibauitch, 688 S.W.2d 868, 873 (Tex.Crim.App. 1985) (remanding case for new punishment hearing where sentence influenced by subsequently voided amendment to sentencing law raising punishment range); State v. Rowan, 927 S.W.2d 116, 117-18 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (case remanded for new punishment hearing after trial judge sentenced defendant for a Class B misdemeanor using punishment range for Class A misdemeanor even though punishment assessed fell within Class B punishment range). The State admits Borrego is "on all fours with the instant case," but contends Borrego has been overruled and this case is now subject to harmless error analysis. We agree with the State that we must conduct a harm analysis. See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997) (holding that except for structural federal constitutional errors, no error is categorically immune from harm analysis). We addressed the trial court's admonishment error within the framework of article 26.13. The admonishment statute, however, addresses the provision of information to the defendant to enable him to enter a knowing and voluntary plea. We have already concluded appellant's plea was not involuntary. The trial court's misunderstanding of the offense goes to the assessment of punishment rather than the voluntariness of appellant's plea. Therefore, we will review the trial court's misapprehension of the offense and punishment range for harmless error. See Tex.R.App.P. 44.2(b). In conducting a rule 44.2(b) review, we disregard the error unless it affects appellant's substantial rights. Tex.R.App.P. 44.2(b). A nonconstitutional error does not affect a defendant's substantial rights unless, after examining the record as a whole, we have a grave doubt that the result was free from the substantial influence of the error. Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). Neither side bears the burden to show harm or harmlessness. Id. at 638. In this case, we cannot determine definitively whether the trial court intended to assess a five-year sentence or intended to assess the minimum period of confinement. However, the record reflects there was no real opposition to deferred adjudication and the trial court sentenced appellant to the minimum sentence for the offense to which the court repeatedly referred as the offense with which appellant was charged. Thus, there is an indication in the record that if the judge had been considering the correct offense and range, the judge might have imposed a different punishment. Therefore, we have grave doubts as to the result of the punishment assessed and conclude the trial court's error affected appellant's substantial rights. See Tex.R.App.P. 44.2(b). We sustain appellant's first issue to the extent he complains the trial court assessed punishment under the mistaken impression it was sentencing him for a first-degree felony.Ineffective Assistance Of Counsel
In his second issue, appellant contends he received ineffective assistance of counsel. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. In the context of a guilty plea, appellant satisfies the second prong of the Strickland test if he shows there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty but rather would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981); Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Bone, 77 S.W.3d at 836. When the record is silent regarding the motivation of counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Appellant contends counsel rendered ineffective assistance by: (1) telling appellant he would receive probation if he pleaded guilty; (2) failing to properly translate the plea documents into Spanish for appellant's benefit; and (3) failing to object to the trial court's erroneous admonishments and statements about the punishment range and the offense charged. Appellant recognizes that his first two complaints are not supported by the record, but he contends we can review his third complaint on the current record. We disagree. Assuming, without deciding, that trial counsel's failure to apprize the trial court of the correct offense and punishment range fell below an objective standard of reasonableness, appellant has not shown that he was harmed by trial counsel's error. See Strickland, 466 U.S. at 694. In his brief, appellant asserts he would not have knowingly pleaded guilty in furtherance of a strategy seeking leniency and deferred adjudication from the court if he had known the trial court thought he was pleading guilty to a more serious offense. The record, however, is silent regarding the strategic considerations of appellant's plea. Moreover, appellant entered his plea after being repeatedly informed that the trial court thought he was guilty of a more serious offense. Thus, the record contradicts appellant's contention. We conclude appellant has not shown a reasonable probability that he would not have persisted in his guilty plea if the trial court had been corrected regarding the plea. See Moody, 991 S.W.2d at 857-58. Because of our disposition of the first issue, we need not decide whether appellant would have received a more favorable punishment if counsel had objected to the trial court's incorrect statements regarding the offense and punishment range. We overrule appellant's second issue.Certification Of The Interpreter
In his third issue, appellant contends the trial court erred in failing to ensure the plea and sentencing proceedings were translated by a certified interpreter. Appellant contends trial counsel's request to the trial court to interpret for appellant should be viewed as an informal motion for appointment of an interpreter. Appellant contends the trial court violated section 57.002 of the government code by failing to appoint a certified interpreter, inquire into trial counsel's qualifications as an interpreter, or swear in counsel. "A court shall appoint a certified court interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court." Tex. Gov't Code Ann. § 57.002(a) (Vernon Supp. 2003). In this case, appellant did not file a motion for the appointment of an interpreter. To the contrary, we view counsel's request to the trial court as more of an explanation for why an interpreter would not be needed. Thus, we conclude section 57.002 does not apply to this case. Instead, we turn to article 38.30 of the code of criminal procedure to resolve appellant's complaint. Article 38.30(a) provides:When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses. In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charged or witness may be permitted by the court to nominate another person to act as intermediary between himself and the appointed interpreter during the proceedings.Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. Pamph. 2003). Other than failing to swear in counsel, the record does not reveal any violation of article 38.30(a). Article 38.30 does not require any license or certification for the interpreter beyond adequate interpreting skills and knowledge of slang. Appellant concedes the record does not reveal whether counsel interpreted the proceedings accurately. The record does show appellant did not file a motion requesting an interpreter nor did appellant nominate someone else to interpret. The trial court determines whether an individual is competent to serve as an interpreter. Kan v. State, 4 S.W.3d 38, 41 (Tex.App.-San Antonio 1999, pet. ref'd). Absent a showing of abuse of discretion, we will not disturb the trial court's determination. Id. Appellant has not shown that counsel was not competent to translate. Thus, we conclude appellant has not shown the trial court abused its discretion in not appointing a different individual to act as interpreter. Additionally, appellant has not shown how counsel's translation harmed him. The accuracy of a translation is a fact question properly addressed to the trial court. See Garcia v. State, 887 S.W.2d 862, 875 (Tex.Crim.App. 1994), overruled on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App. 2001). By failing to object to the translation in the trial court, appellant has waived appellate review of any translation error. See Tex.R.App.P. 33.1(a). Appellant does not now identify any portion of the translation as inaccurate. Cf. Montoya v. State, 811 S.W.2d 671, 673 (Tex.App.-Corpus Christi 1991, no pet.) (any error is harmless where appellant cannot point to specific passages in translation that prevented him from confronting witnesses). Accordingly, we conclude appellant has neither preserved any complaint about the translation nor shown that he was harmed by an inaccurate translation. See Garcia, 887 S.W.2d at 875. Because appellant has not shown the trial court abused its discretion in allowing counsel to translate nor has he shown he was harmed, we resolve appellant's third issue against him. Because of our resolution of appellant's first issue, we reverse and remand the trial court's judgment for assessment of punishment. See Borrego, 558 S.W.2d at 1-2.