      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00519-CR



                              Lorenzo Castorela-Chavez, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-08-200806, HONORABLE BOB PERKINS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Lorenzo Castorela-Chavez guilty of one count of aggravated

sexual assault and two counts of indecency with a child by contact. See Tex. Penal Code Ann.

§ 21.11(a)(1) (West 2003), § 22.021(a)(1)(b)(i) (West Supp. 2008). The trial court assessed

punishment at twenty-five years’ imprisonment for the count of aggravated sexual assault,

twenty years’ imprisonment for the first count of indecency with a child, and fifteen years’

imprisonment for the second count of indecency with a child, with all three sentences to run

concurrently. On appeal, Castorela-Chavez argues that his election to have the court, rather than the

jury, assess punishment was involuntary due to the trial court’s “improper participation” in

plea bargaining discussions. We affirm the judgments of conviction.
                                         BACKGROUND

               At the time of the events giving rise to the current prosecution, Castorela-Chavez was

living with Maria Reveles, the mother of two of his children. The couple lived in an apartment with

their children, as well as Castorela-Chavez’s daughter from another relationship and Reveles’s

three other children, including thirteen-year-old M.B. Reveles testified that at approximately

2:30 a.m. on February 8, 2008, she awoke to find Castorela-Chavez in M.B.’s bedroom, kneeling

next to her bed with his hands underneath her blouse. According to Reveles, she turned on the light

and observed Castorela-Chavez touching M.B.’s breasts while she slept. Reveles further testified

that when she confronted Castorela-Chavez, he threatened to kill her if she called the police.

               When Reveles took her youngest children to school that morning, she told a school

employee about what she had seen.1 At Reveles’s request, the school employee called the police and

Reveles provided them with a statement, a physical description of Castorela-Chavez, and consent

to search her apartment. While officers were searching the apartment, Castorela-Chavez returned

home and was arrested. Meanwhile, M.B. was taken to the hospital, where she was examined by

Ann Martin, a sexual assault nurse examiner. During the examination, M.B. told Martin that

multiple times in the past, Castorela-Chavez had come into her room at night and touched her on

both the inside and outside of her vagina with his finger. Martin testified at trial that her

examination revealed “abrasions too numerous to count” on M.B.’s vagina. Martin further testified




       1
        Reveles, who does not speak English, testified that she was afraid to call the police because
of Castorela-Chavez’s threats. Reveles explained that she confided in this particular school
employee because she knew and trusted her and because the school employee spoke Spanish.

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that the abrasions looked like they had occurred recently, although she could not estimate

how recently.

                M.B. testified at trial regarding the touching incidents, describing them with detail.

She also described certain looks and actions that Castorela-Chavez had directed at her prior to the

incidents, including raising and lowering his eyebrows while beckoning to her and rubbing her leg

while sitting next to her on the couch. When asked about the morning of February 8, M.B. testified

that she woke up to hear Reveles and Castorela-Chavez arguing, but did not know the reason for

their argument. M.B. further testified that she heard Castorela-Chavez threaten to kill Reveles if she

“put the police on him.”

                Castorela-Chavez also testified at trial and denied ever having touched M.B.

inappropriately. He stated that when Reveles woke up at 2:30 a.m. on February 8, 2008, he was not

in M.B.’s room, as Reveles testified, but was in the bedroom closet, drawing up an estimate for a bid

on a construction job. According to Castorela-Chavez, when Reveles woke up and saw that he was

not in bed, she assumed he was cheating on her and became angry, so that when she ultimately found

him working in the closet, an argument ensued. Castorela-Chavez maintained that Reveles had

falsely accused him of touching M.B. because she was angry with him over his relationship with

another woman.

                After hearing the evidence, the jury found Castorela-Chavez guilty of one count of

aggravated sexual assault, one count of indecency with a child by touching M.B.’s vagina, and one

count of indecency with a child by touching M.B.’s breasts. See id. The court then imposed a

sentence of incarceration for twenty-five years, twenty years, and fifteen years, respectively, with the

sentences to run concurrently.

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                                          DISCUSSION

               In his sole issue on appeal, Castorela-Chavez argues that the trial court’s “improper

participation” in plea bargain discussions gave him a false impression of leniency, rendering his

decision to have the court assess punishment involuntary.

               The code of criminal procedure allows a criminal defendant to elect to have the jury

assess punishment. Tex. Code Crim. Proc. Ann. art. 37.07 § 2(b) (West Supp. 2008). In the absence

of a written election, punishment will be assessed by the court. See id. The right to have a jury

assess punishment is not a constitutional right, but a statutory one. See Tinney v. State, 578 S.W.2d

137, 138 (Tex. Crim. App. 1979) (“There is no constitutional right to have the jury

assess punishment.”).

               Prior to trial, the State offered Castorela-Chavez a plea bargain of eighteen years’

imprisonment. Castorela-Chavez rejected this offer and made a counter-offer of four years’

imprisonment, which the State rejected. Once both offers had been made and rejected, the following

discussion occurred:


       COURT:           Had you-all talked to me—or have I ever talked to you-all about
                        anything that I would do unnegotiated or anything?

       DEFENSE:         No, sir.

       STATE:           No, Your Honor.

       COURT:           Okay. I guess the first question, I guess, would be whether or not
                        you’re interested in that, or should we go ahead and try it?

       DEFENSE:         My client indicated he would like to try the case; however, I’m
                        always anxious to hear what the Court thinks about an offer and
                        thoughts.


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               Attorneys for both sides then provided the court with a brief summary of the

allegations and evidence, after which the following discussion took place:


       COURT:          Well, I guess the question would be whether or not—I don’t know,
                       based on, you know, what you-all are telling me, I guess just because
                       of the fact we have so many people in jail and everything, I might be
                       able to do something like 12 or something like that, but I don’t know
                       that that—I guess the first hurdle in that would be whether or not the
                       State, you know, would want to waive a jury trial in that situation or
                       not. If you wouldn’t, then, you know, I guess we just need to go
                       ahead and try it.

       STATE:          Yeah, I don’t believe we want to waive it under those circumstances,
                       Judge.

       COURT:          Okay. All right. So, Mr. Castorela[-Chavez], we’ll proceed on the
                       arraignment, then, at this time.


               A few moments later, defense counsel stated, “And Judge, for the State’s benefit, I’d

like for the jury to assess punishment . . . .” After a short discussion about how the election would

be filed and the proper spelling of the defendant’s name, the following exchange occurred:


       DEFENSE:        Judge, since we haven’t filed the election yet, I think we are going to
                       change that and have you. The motion I drew up was that the jury do
                       punishment, but I’ve talked to him. It’s actually his choice. He says
                       he’d rather the judge assess punishment in the event he is convicted
                       on any of the three counts. So I’m just going to scratch through that
                       on the motion.

       ...

       DEFENSE:        Now, he is eligible for community supervision, but—

       COURT:          With the jury, yeah.




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       DEFENSE:        With the jury. However, I think that any jury that convicts him is not
                       going to give him community supervision given the seriousness of the
                       allegation and also the fact that he’s not here legally.

                       So I think there is much more probability of an adverse result for him
                       if he goes to the jury than if he goes to the Court, given the Court’s
                       inclinations regarding punishment already that you have addressed.
                       So we’re going to do that just to the Court on punishment.


               Castorela-Chavez now argues that the trial court, by stating, “I might be able to do

something like 12 or something like that,” misled him into believing that the trial court would assess

a punishment consistent with that statement in the event the case went to trial. Castorela-Chavez

further asserts that this misperception rendered his punishment election involuntary.

               Castorela-Chavez did not raise this complaint at sentencing or by a motion for

new trial. As a result, his complaint has not been preserved for appellate review. See Tex. R. App.

P. 33.1; Dickson v. State, 492 S.W.2d 267, 270 (Tex. Crim. App. 1973) (stating that defendant can

waive statutory rights concerning assessment of punishment). However, in the interest of justice,

we will address Castorela-Chavez’s complaint.

               The court of criminal appeals has held that a trial judge should avoid participation in

plea negotiations until an agreement has been reached, in order to “avoid the appearance of any

judicial coercion or prejudgment of the defendant since such influence might affect the voluntariness

of the defendant’s plea.” Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987)

(emphasis added); see also Ex parte Shuflin, 528 S.W.2d 610, 617 (Tex. Crim. App. 1975). In the

present case, the voluntariness of Castorela-Chavez’s plea is not at issue because he pleaded not

guilty. Rather, he argues that the court’s improper participation in plea negotiations rendered his


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punishment election involuntary. Castorela-Chavez has not provided, nor have we found, any

authority to suggest that comments by the trial court during plea negotiations might render a

defendant’s punishment election involuntary.

                Castorela-Chavez relies on Huffman v. State, 676 S.W.2d 677, 682-83

(Tex. App.—Houston [1st Dist.] 1984, pet ref’d), in which the court of appeals held that an

unfulfilled promise of leniency by the State rendered a defendant’s guilty plea involuntary. Huffman

is distinguishable in two significant ways. First, no promise of leniency was ever made in the present

case. Rather, Castorela-Chavez simply made an assumption of leniency based on the trial court’s

comments. Second, Huffman, like all of the cases cited by Castorela-Chavez, addressed the

voluntariness of a guilty plea, which has the effect of waiving the constitutional right to a trial by

jury on guilt/innocence. See Brady v. United States, 397 U.S. 742, 748 (1970) (“Waivers of

constitutional rights not only must be voluntary but must be knowing, intelligent acts done with

sufficient awareness of the relevant circumstances and likely consequences.”). Castorela-Chavez’s

punishment election, on the other hand, did not waive his right to a trial by jury or any other

constitutional right, but waived only his statutory right to have a jury assess punishment. See Tinney,

578 S.W.2d at 138.       As a result, cases in which a trial court’s improper participation in

plea negotiations affected the voluntariness of a defendant’s guilty plea are not applicable to the

present case.

                The effect of a misstatement by the trial court on a defendant’s punishment election

was addressed in Sterry v. State, 959 S.W.2d 249, 257 (Tex. App.—Dallas 1997, no pet.), in which

the court of appeals held that a defendant was deprived of due process because his election to have


                                                  7
the court assess punishment was based on the trial court’s misstatement regarding the applicable

sentencing range for his offense. In the present case, however, the trial court did not misstate the

law, but merely suggested, in extremely equivocal language, a punishment that it might consider in

the event of an unnegotiated plea. The trial court’s statement, “I might be able to do something

like 12 or something like that,” cannot reasonably be viewed as a firm commitment to sentence

Castorela-Chavez to twelve years’ incarceration after a trial on the merits.2

               In light of the fact that the trial court’s comments did not convey any promise or

guarantee of leniency and that, even if the trial court had “improperly participated” in plea bargain

negotiations as Castorela-Chavez suggests, he has provided no authority to support his contention

that a punishment election may be rendered involuntary by such participation, we overrule Castorela-

Chavez’s sole issue on appeal.




       2
           At the time the statement was made, the trial court had only been given a brief summary
of the allegations and the evidence available, and had not yet heard the full extent of the evidence,
including Castorela-Chavez’s threat to kill Reveles if she reported his actions to the police,
M.B.’s testimony regarding the touching incidents and Castorela-Chavez’s behavior toward her in
general, and the sexual assault nurse examiner’s testimony that she observed “abrasions too
numerous to count” during her examination. It would not be unreasonable to assume that the trial
court considered imposing a sentence in the twelve-year range as suggested prior to trial, but later
determined that a longer sentence was warranted. In any event, the record reflects that the trial court
never indicated to Castorela-Chavez that the statement, “I might be able to do something like 12 or
something like that,” was binding or remained effective in the absence of an unnegotiated plea.

       We note also that the sentences imposed by the court were well within the applicable ranges
of punishment for each offense, as aggravated sexual assault is a first-degree felony, with a
maximum sentence of incarceration for life, and indecency with a child is a second-degree felony,
with a maximum sentence of twenty years’ incarceration. See Tex. Penal Code Ann. §§ 12.32-.33,
21.11(d) (West 2003), § 22.021(e) (West Supp. 2008).

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                                       CONCLUSION

              We affirm the judgments of conviction.




                                           ___________________________________________

                                           Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: September 24, 2009

Do Not Publish




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