                           NUMBER 13-11-00369-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

PEDRO GARCIA, III                                                         Appellant,


                                          v.

THE STATE OF TEXAS,                                                         Appellee.


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


                          MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria
      In three issues, appellant, Pedro Garcia III, asks us to set aside an order

deferring adjudication entered pursuant to a plea bargain on the basis that the plea was

involuntary. We affirm.
                                                  I. BACKGROUND

        Appellant was charged with indecency with a child, a second degree felony. See

TEX. PENAL CODE ANN. § 21.11 (West Supp. 2011). On March 21, 2011, appellant

pleaded guilty pursuant to a plea agreement where he would receive eight years of

deferred adjudication community supervision and register as a sex offender. The trial

court accepted the plea deal but added a jail term of ninety days that was later reduced

to sixty and to be served on work release. Appellant filed a motion for a new trial; the

court held a hearing on the motion in which the judge questioned whether he retained

jurisdiction over a deferred adjudication order that was more than thirty days old and

then took no further action. This appeal followed.1

                                                 II. DISCUSSION

        Appellant argues that his plea was involuntary because his trial counsel failed to

admonish him that the requirement to register as a sex offender could last for the rest of

his life; that the trial court’s failure to admonish violated his right to due process; and

that he received ineffective assistance of counsel because trial counsel failed to inform

him of the potential length of the registration requirement.

        In his first issue, appellant argues that his plea was involuntary because he was

not fully admonished of the consequences of his plea in violation of article 26.13(a) of

the code of criminal procedure. Prior to accepting a defendant’s plea of guilty or no

contest, a trial court must admonish the defendant on several subjects, including the

    1
      A motion for new trial is not the proper procedure for challenging the voluntariness of a plea deal
where the trial court has deferred adjudication. Donovan v. State, 68 S.W.3d 633, 635-38 (Tex. Crim.
App. 2002). Appellant did not file a separate notice of appeal but attached an affidavit “invoking” his right
to appeal the order deferring adjudication to his amended motion for new trial. Because he appears to
have filed the affidavit in the trial court within the thirty day period as provided for in the rules, and the
affidavit is sufficient to give notice of his intent to appeal, we conclude that we retain jurisdiction. See TEX.
R. APP. P. 25.2(c)(2), 26.2(a)(1).


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requirement to register as a sex offender if the defendant is pleading to one of the

triggering offenses listed in Chapter 26 of the code of criminal procedure. TEX. CODE

CRIM. PRO. ANN. art. 26.13(a)(5) (West Supp. 2011); see Bessey v. State, 239 S.W.3d

809, 812 (Tex. Crim. App. 2007). The trial court must substantially comply with the

requirement to admonish defendants regarding sex offender registration, but failure to

do so is not grounds for setting aside a conviction, sentence, or plea. TEX. CODE CRIM

PRO. ANN. art. 26.13(h). Because the legislature has foreclosed noncompliance with

article 26.13 as a ground of relief, we overrule appellant’s first issue. Morin v. State,

340 S.W.3d 816, 818 (Tex. App.—San Antonio 2011, pet. ref’d) (“The Legislature

foreclosed any attempt by an appellant to set aside a plea, conviction, or sentence

based on a trial court’s failure to properly admonish in accordance with article

26.13(a)(5).”); see also James v. State, 258 S.W.3d 315, 318 (Tex. App.—Austin 2008,

pet. ref’d).

          In his second issue, appellant argues that his plea was involuntary because the

trial court’s failure to admonish him about the same issue violated his due process

rights.     Whether the trial court’s admonishments complied with due process is a

question separate from compliance with article 26.13(a). Gardner v. State, 164 S.W.3d

393, 398 (Tex. Crim. App. 2005). A guilty plea is voluntary under the state and federal

constitutions when it is made with a clear understanding of the “direct consequences of

the plea.” Mitschke v. State, 129 S.W.3d 130, 132 (Tex. Crim. App. 2004) (citing Brady

v. U.S., 397 U.S. 742, 748 (1970)). Direct consequences are those that are “definite

and largely or completely automatic.” Id. at 135. The court of criminal appeals has

ruled that due process does not require admonishing the defendant because



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registration, although a direct consequence of a plea to a triggering offense, is a

remedial and not a punitive measure. Id. at 136; see Anderson v. State, 182 S.W.3d

914, 918 (Tex. Crim. App. 2006). In any event, the court in this case provided appellant

with a set of written admonishments that described the requirement to register as a sex

offender and that the requirement could conceivably end “when you die.”              Before

entering the plea, appellant initialed the paragraphs acknowledging that he would have

to register as a sex offender and that he understood “the admonishments given to me in

writing by the court.” Thus, there is no merit to appellant’s contention that he was not

properly admonished. Appellant’s second issue is overruled.

       Appellant argues in his third issue that his plea was involuntary because his trial

counsel was ineffective for failing to explain that the registration requirement could last

for the rest of appellant’s life. To prevail on a claim of ineffective assistance of counsel

the defendant must meet the heavy burden of Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, the defendant must show by preponderance of evidence that:

(1) counsel’s representation fell below an objective standard of reasonableness, and (2)

there is a reasonable probability that the result of the proceeding would have been

different but for the attorney’s deficient performance. Id. at 687; Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christie 2006, no pet.). Allegations of

ineffectiveness must be “firmly founded in the record.” Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).       Direct appeal is usually inadequate to make an

ineffectiveness claim because the record is often undeveloped. Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005).             We look to “the totality of the

representation and the particular circumstances of each case in evaluating the



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effectiveness of counsel.” Thompson, 9 S.W.3d at 813. If an appellant fails to prove

one prong of the test, we need not reach the other prong. See Strickland, 466 U.S. at

697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

      The Strickland standard applies to plea bargaining. Ex parte Moody, 991 S.W.2d

856, 857–58 (Tex. Crim. App. 1999). When an appellant challenges the voluntariness

of a plea entered into on the advice of counsel the test is: “(1) whether counsel’s advice

was within the range of competence demanded of attorneys in criminal cases and if not,

(2) whether there is a reasonable probability that, but for counsel’s error, he would not

have pleaded guilty and would have insisted on going to trial.” Id. (quoting Ex parte

Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”       Riley v. State, 378

S.W.3d 453, 459 (Tex. Crim. App. 2003) (quoting Strickland, 466 U.S. at 694).

      Appellant bases his claim of ineffective assistance on his trial counsel’s failure to

explain the potential duration of the sex offender registration requirements. We need

not decide whether trial counsel’s performance was actually deficient because appellant

does not claim on appeal that he would have insisted on going to trial if he had been

aware of the possibility that he could conceivably be required to register as a sex

offender for the rest of his life. Appellant thus does not contend that the outcome of the

proceeding would have been different but for his counsel’s alleged ineffectiveness and

therefore cannot meet the second prong of the ineffectiveness test. See Moody, 991

S.W.2d at 857–58. Because appellant has failed to meet the prejudice prong of the

test, we need not address whether trial counsel’s performance was deficient.          See




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Strickland, 466 U.S. at 697; Garcia, 57 S.W.3d at 440. Appellant’s third issue is

overruled.

                                    III. CONCLUSION


       Having overruled appellant’s three issues, we affirm the trial court’s order

deferring adjudication.




                                             ________________________
                                             NORA L. LONGORIA
                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b)

Delivered and filed the
7th day of February, 2013.




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