                                                                            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).
