Opinion
No. 05-16-00513-CR
05-25-2017
FERNANDO SANCHEZ-LOPEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1575749-V
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Bridges
Appellant Fernando Sanchez-Lopez was charged with aggravated sexual assault of a child. The trial court found him guilty and sentenced him to fifteen years' confinement. On appeal, he challenges the voluntariness of his plea, the trial court's failure to provide certain admonishments, the failure to swear in an interpreter, and the ineffectiveness of counsel. As modified, we affirm the trial court's judgment. Because appellant has not challenged the sufficiency of the evidence, we only provide those facts relevant to disposition of the appeal. TEX. R. APP. P. 47.1.
Before addressing the merits of appellant's complaints, it is important to understand the procedural posture of this case. Appellant presents his complaints as though he pleaded "no contest" to the charge against him; however, a review of the record reveals the trial court and lawyers proceeded, without objection or clarification, to appellant's "not guilty" plea.
At the beginning of the proceedings, the trial court stated, "It's my understanding the parties agreed to waive a jury in this case. As a matter of fact, the State is allowing the Defendant to plead no contest. Is that right?" to which both the State and defense counsel agreed. The court then continued,
Mr. Sanchez-Lopez, you do understand that you have a right to have a jury trial. You can have a jury of your peers selected and empaneled to hear this case whether you're guilty or not guilty or you can have the Court hear, that would be me, hear the evidence in this case and determine whether the State has proven this case beyond a reasonable doubt.Appellant acknowledged he was waiving his right to a jury trial.
It's my understanding you're going to enter a plea of no contest, which means that if I find that the evidence does substantiate your guilt beyond a reasonable doubt then I can defer any further proceedings or I can find you guilty and go forward with punishment after that.
Of course, if the State has not proven this case beyond a reasonable doubt then I would find you not guilty. But you do have to say that you are going to and willing to waive your right to a jury trial; is that right?
These statements indicate the trial court appears to equate "no contest" to "not guilty."
After reading the indictment, the court asked defense counsel if appellant was pleading guilty, not guilty, or no contest. Defense counsel said, "No contest," but appellant answered, "Not guilty." Because of the differing responses, the court granted a brief recess and upon return, defense counsel said appellant was pleading no contest. Appellant remained silent, and the court did not further inquire into his plea.
After counsel stated appellant pleaded "no contest," the court immediately proceeded to hear the State's evidence rather than give any of the admonishments required under Texas Code of Criminal Procedure article 26.13. The State introduced the complainant's videotaped interview in which she accused appellant of sexual abuse. The State then called several witnesses, including the director of forensic services at the Dallas Children's Advocacy Center, who explained outcry statements and reasons why a complainant might recant an accusation, and the complainant, who recanted and denied the allegations.
The record indicates appellant is a citizen of Mexico.
After the State rested its case, defense counsel moved for a directed verdict, which the trial court denied. The defense then rested its case. The trial court then explained, "This is the part of the trial where you may testify in your defense if you choose," and continued to discuss the implications of testifying or choosing to remain silent. Appellant chose not to testify. The attorneys then made closing arguments. Defense counsel argued, "I think that we have seen a case that is the definition of reasonable doubt. I do not believe the State has proved beyond a reasonable doubt that these allegations occurred." The State argued appellant was guilty as charged. The trial court then thanked the lawyers for a "succinct, very professionally tried case," and "after considering the evidence, State's Exhibits 1 through 4, . . . the testimony from all the witnesses," the court found appellant "beyond a reasonable doubt . . . guilty as charged in the indictment."
It had previously called one witness out of order during the State's case-in-chief.
The trial court recessed and later returned to consider punishment evidence. Defense counsel stated she had discussed with appellant his right to testify "in this portion of the trial." After hearing defense witnesses, the trial court sentenced appellant to fifteen years' confinement.
Based on the foregoing discussion of events, the record is clear the trial court proceeded with a bench trial, without objection from the State or the defense, based on appellant's "not guilty" plea or the trial court equating a "no contest" plea to a "not guilty" plea. The fact that the proceeding was bifurcated, rather than unitary, indicates a trial on the merits rather than a plea proceeding. See Gomez v. State, 399 S.W.3d 604, 606 (Tex. App.—Dallas 2013, pet. ref'd) (when defendant enters no contest plea, the proper procedure is to conduct a unitary trial). Further, both sides referenced to "the trial" during the guilt and punishment phases. The trial court found appellant guilty based on the higher evidentiary standard reserved for trials on the merits and not on the lower standard reserved for no contest pleas. See McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas 2006, no pet.) (supporting evidence must simply embrace every element of the offense charged when a party pleads no contest and not proof beyond a reasonable doubt).
Appellant has made no argument he was denied any of the procedural safeguards required for a fair trial. Rather, several of his complaints encompass procedural requirements when a defendant enters a no contest plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1), (4), (5) & (b) (West Supp. 2016). However, because the trial court conducted a bench trial and not a plea hearing, it was not required to admonish appellant regarding punishment range, possible deportation, or registration requirements. Accordingly, appellant's first and third issues are overruled.
In his fifth issue, appellant argues the trial court failed to follow the mandatory dictates of article 27.13, which requires a plea of guilty or no contest be made "in open court by the defendant in person." TEX. CODE CRIM. PROC. ANN. art. 27.13 (West 2006). He claims the trial court erred by accepting defense counsel's plea, which differed from appellant's "not guilty" plea. However, as explained above, a review of the circumstances as a whole indicates the trial court accepted appellant's not guilty plea and proceeded accordingly with a bench trial. Thus, the court did not violate article 27.13. Accordingly, appellant's fifth issue is overruled.
In his fourth issue, he argues the trial court erred by denying him a sworn interpreter as mandated by article 38.30. See TEX. CODE CRIM. PROC. ANN. art. 38.30 (West Supp. 2016). The record indicates the trial court acknowledged the presence of an interpreter after the proceedings began, but also recognized its failure to swear in the interpreter. However, at no time prior to or after this exchange did appellant object to the court's failure to comply with article 38.30. In fact, the court noted, "I haven't heard any complaints from the Defense about that, is that right?" and defense counsel answered, "That's correct, Your Honor." The court then swore in a new interpreter and continued with the trial.
Despite the trial court's failure to initially swear in the first interpreter, without a proper objection, appellant failed to preserve his issue for review. See TEX. R. APP. P. 33.1; Castillo v. State, 807 S.W.2d 8, 9 (Tex. App.—Corpus Christi 1991, pet. ref'd) ("A party who permits without objection an interpreter to be appointed and to interpret witness testimony without having the requisite oath administered at the time of his appointment, waives all objections and fails to preserve error). We overrule appellant's fourth issue.
Appellant's second and sixth issues involve a claim for ineffective assistance of counsel. He asserts counsel was ineffective because counsel failed to (1) admonish him regarding immigration consequences as required by Padilla v. Kentucky, 559 U.S. 356 (2010), (2) request the first interpreter be sworn, (3) withdraw the no contest plea, and (4) object to the admission of complainant's out-of-court interview that only hurt him. He further contends counsel was ineffective by entering a no contest plea on his behalf and subjecting him to a lower standard of proof.
To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence: (1) deficient performance, and (2) prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. Further, trial counsel should ordinarily be afforded an opportunity to explain her actions before being denounced as ineffective. Id. Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Id. This is particularly true because counsel's competence is presumed. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). The reasonableness of performance is evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. Id.
The record is silent as to counsel's strategy or reasons for the alleged misconduct. Although appellant filed a motion for new trial, he did not allege his counsel was ineffective. Thus, we cannot say appellant has overcome the strong presumption in favor of effectiveness of counsel to conclude counsel's performance was deficient.
This is particularly true in regards to counsel's failure to object to the videotape of complainant's interview. Counsel referred to the interview during closing and argued, "there were multiple, multiple, inconsistencies in that. The details of the incident are not just inconsistent, they don't make sense." Counsel's reference to the interview indicates a possible trial strategy to argue complainant was not credible. See, e.g., Lee v. State, No. 09-04-170-CR, 2005 WL 615722, at *1 (Tex. App.—Beaumont March 16, 2005, pet. ref'd) (mem. op., not designated for publication) (counsel not ineffective for allowing videotape into evidence when he used it to argue complainant was not credible and had been coached). Thus, appellant has not demonstrated counsel lacked legitimate and professionally sound reasons for her actions. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (deficient performance shown when there is no plausible professional reason for counsel's specific act or omission).
Even if appellant had established the first Strickland prong, he has not overcome the second hurdle and established prejudice as to his other claims. In the context of a guilty plea, to establish prejudice and, therefore, ineffective assistance under Strickland, a defendant must show that 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. Martinez v. State, 449 S.W.3d 193, 205 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
To the extent appellant argues he received ineffective assistance of counsel pursuant to Padilla because counsel allegedly failed to warn him of adverse immigration consequences, his argument is without merit. Here, appellant did not plead guilty but instead went to trial. This is, therefore, not a situation in which he can argue that had he received appropriate advice concerning immigration consequences, he would not have pleaded guilty and gone to trial. He, in fact, pleaded not guilty and went to trial. Thus, he cannot contend a reasonable probability exists the result of the proceeding would have been different. Id.
The same rationale applies to his claim that counsel was ineffective for entering a no contest plea, not asking the court to withdraw his plea of no contest, and subjecting him to a lower burden of proof. As explained above, the court conducted a full trial based on appellant's plea of not guilty and found him guilty beyond a reasonable doubt. Thus, appellant cannot contend a reasonable probability exists the result of the proceeding would have been different but for any actions of defense counsel. See Gomez, 399 S.W.3d at 606.
To the extent he argues he was harmed by defense counsel's failure to ensure he had a sworn interpreter present when he entered his plea, he cannot establish he was prejudiced by the omission. Although both parties and the trial court acknowledged the first interpreter was not sworn at the beginning of the proceedings, appellant acknowledged the interpreter was in fact present. He further acknowledged he understood everything the interpreter had said to him, including the lawyers' questions and the witness answers. He does not argue the interpreter was inadequate, misinterpreted what was being said, or interfered with his ability to understand the proceedings. In short, appellant has failed to demonstrate harm. See, e.g., Kan v. State, 4 S.W.3d 38, 43 (Tex. App.—San Antonio 1999, pet. ref'd) (concluding no prejudice from counsel's failure to object to interpreter's incomplete or inaccurate translation).
Having considered appellant's arguments, we conclude he has failed to satisfy his burden under Strickland. We resolve appellant's second and sixth issues against him.
Although not raised by either party, the trial court's judgment indicates appellant pleaded "GUILTY." This Court has the authority to modify the judgment to make the record speak the truth and may do so sua sponte. See TEX. R. APP. P. 43.2(b); see also Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). We modify the judgment to reflect a plea of "NOT GUILTY." As modified, we affirm the trial court's judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160513F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1575749-V.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that appellant Fernando Sanchez-Lopez pleaded "Not Guilty."
As modified, the judgment of the trial court is AFFIRMED. Judgment entered May 25, 2017.