Opinion issued December 3, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00803-CR
                              NO. 01-14-00804-CR
                           ———————————
                    RICARDO JAVIER PENA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 178th District Court
                           Harris County, Texas
                 Trial Court Case Nos. 1392873 and 1392874



                         MEMORANDUM OPINION

      The State charged Ricardo Javier Pena with two offenses of aggravated

sexual assault of a child under 14 years of age. Pena pleaded guilty to both cases

without agreed recommendations as to punishment. The trial court ordered a
pre-sentence investigation and, after receiving the PSI report, held a hearing. It

found Pena guilty of both charged offenses and assessed punishment at 20 years’

incarceration for each, with the sentences to run concurrently.

      Pena contends he received ineffective assistance of counsel in entering his

guilty pleas and that, as a result, the pleas were involuntary. We affirm.

                                    Background

      Pena, a pastor, and his wife had been entrusted with the care of their young

granddaughters on a regular basis. Pena began sexually assaulting two of his

granddaughters when they were about six or seven years old and repeatedly

continued to do so over about a two-year period.

      The stepfather of one of the victims testified that when his stepdaughter was

in first grade, she got in trouble for talking about sex with another child. When the

parents asked the child where she had learned about sex, she identified Pena, but

Pena denied it and accused the child of being a liar. The parents believed Pena.

      Pena continued to sexually assault that child and her cousin. The children

reported that on evenings that they stayed at their grandparents’ home, Pena’s wife

would fall asleep in front of the television, and then Pena would take them to his

bedroom and touch their private parts with his hand and mouth. The stepfather

recounted that his stepdaughter made another outcry about the sexual abuse




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approximately a year after her first outcry. The second outcry led to the charges

against Pena.

      Pena received and signed a document containing written waivers of

constitutional rights, agreement to stipulate, and judicial confession for each

charged offense. Pena initialed paragraphs notifying him that he was required to

comply with the sex offender requirements of Chapter 62 of the Texas Code of

Criminal Procedure. Another page of the waivers instructed Pena to place his

initials by each paragraph containing other admonishments, statements, and

waivers if he fully understood them. While under oath, Pena placed his initials

next to paragraphs that

      • recited the charges against him;

      • explained that the trial court could impose punishment ranging
        from 5 to 99 years or life in prison;

      • waived his right to oral admonishments;

      • represented he understood the consequences of his plea and that
        the trial court could accept or refuse to accept it;

      • declared that he “freely, knowingly, and voluntarily” executed the
        statement;

      • stated that he understood the admonishments, was aware of the
        consequences of his plea, was mentally competent to stand trial,
        and made his plea freely and voluntarily; and

      • admitted to each element of the offenses alleged in the indictments.



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      After sentencing, Pena’s trial attorney withdrew from representation and the

trial court appointed new counsel for Pena. Pena moved for a new trial, claiming

ineffective assistance of counsel. In the affidavit accompanying the motion, Pena

averred that trial counsel had advised him that he would receive no more than a

five-year prison sentence as punishment for the offenses.

      At the evidentiary hearing on Pena’s motion, Pena’s trial counsel gave

testimony concerning his legal experience, his review of the State’s evidence, the

numerous discussions he had with Pena, and the advice he gave Pena in the months

before Pena entered his guilty pleas. Trial counsel testified that, while he had

believed Pena was likely to receive a more lenient sentence and had told Pena as

much, he had informed Pena of the full sentencing range and had not guaranteed

any particular outcome. The trial court denied the motion for new trial.

                        Ineffective Assistance of Counsel

I.    Applicable Law and Standard of Review

      In his sole issue on appeal, Pena contends he received ineffective assistance

of counsel because trial counsel made improper assurances and misrepresentations

regarding the punishment he would receive, rendering his guilty pleas involuntary.

A guilty plea is valid only when the defendant enters it knowingly and voluntarily.

See Brady v. United States, 397 U.S. 742, 748–49 (1970); Ex parte Mable, 443

S.W.3d 129, 131 (Tex. Crim. App. 2014). A defendant has a constitutional right to



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the effective assistance of counsel in guilty-plea proceedings.           Ex parte

Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) (explaining that right to

effective assistance arises under Sixth Amendment of federal Constitution); Hobbs

v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009) (defendant has absolute

right to jury trial under TEX. CONST. art. I, § 15); Martinez v. State, 449 S.W.3d

193, 199 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).          The Strickland

standard therefore applies to challenge the voluntariness of guilty pleas based on

counsel’s advice. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985); Ex

parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011).

      Strickland standard

      When a defendant challenges the validity of a plea entered upon the advice

of counsel based on an ineffective assistance of counsel claim, the voluntariness of

the plea depends on (1) whether counsel’s advice was within the range of

professional competence and, if not, (2) whether there is a reasonable probability

that, but for counsel’s errors, the defendant would not have pleaded guilty to the

charged offense and would have insisted on going to trial.        Harrington, 310

S.W.3d at 458. In evaluating the effectiveness of counsel under the first prong, we

look to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813; see Griffin v. State, 703 S.W.2d 193, 196 (Tex.

Crim. App. 1986) (explaining that court determines voluntariness of guilty plea



                                         5
based on totality of circumstances); Edwards v. State, 921 S.W.2d 477, 479 (Tex.

App.—Houston [1st Dist.] 1996, no pet.) (same). The issue is whether counsel’s

assistance was reasonable under all the circumstances and prevailing professional

norms at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104

S. Ct. at 2065.

      “Because there ‘are countless ways to provide effective assistance in any

given case,’ a reviewing court must be highly deferential and ‘indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.’” Niswanger, 335 S.W.3d at 615 (quoting Strickland, 466 U.S. at 689,

104 S. Ct. 2052 (internal quotations omitted)). “Strategic or tactical considerations

are not considered deficient ‘unless the challenged conduct was so outrageous that

no competent attorney would have engaged in it.’” Harrington, 310 S.W.3d at 459

(quoting Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999)

(internal quotations omitted)).

      To satisfy the second prong of the test enunciated in Strickland in these

claims, the defendant must show there is a reasonable probability that, but for trial

counsel’s errors, he would not have pleaded guilty, but would have insisted on

going to trial. See Moody, 991 S.W.2d at 857–58. Accordingly, we review the



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record as a whole while indulging a strong presumption that counsel’s conduct was

reasonable. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Edwards, 921 S.W.2d

at 480; see Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998)

(explaining that involuntary guilty plea claim requires affirmative support in

record).

      Because Pena raised his ineffective assistance claim in a motion for new

trial, we apply the abuse-of-discretion standard in reviewing the propriety of the

trial court’s Strickland determination. See Riley v. State, 378 S.W.3d 453, 457

(Tex. Crim. App. 2012). We view the evidence in the light most favorable to the

trial court’s ruling and reverse only if its decision is arbitrary or unreasonable. Id.

      Voluntariness of guilty plea

      “[B]ecause a guilty plea is an admission of all the elements of a formal

criminal charge, it cannot be truly voluntary unless the defendant possesses an

understanding of the law in relation to the facts.” McCarthy v. United States, 394

U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969), quoted in Mable, 443 S.W.3d at 131 &

n.3. “The standard is whether the plea is a voluntary and intelligent choice among

the alternative courses of action open to the defendant.” Id. (citing Parke v. Raley,

506 U.S. 20, 29, 113 S. Ct. 517, 523 (1992)).

      Informed by professional experience and either an adequate investigation of

the case or a reasonable decision that investigation was unnecessary, counsel may



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offer a prediction of the probable sentence a client may receive. Harrington, 310

S.W.3d at 458–59. A guilty plea is not rendered involuntary simply because that

prediction turns out to be wrong. West v. State, 702 S.W.2d 629, 633 (Tex. Crim.

App. 1986). Nor does the defendant’s reliance on that erroneous prediction in

deciding to enter a guilty plea render the plea involuntary. Id. (quoting Wellnitz v.

Page, 420 F.2d 935, 936–37 (10th Cir. 1970)); see also Niswanger, 335 S.W.3d at

615 (cautioning against hindsight bias).

II.   Analysis

      In his affidavit accompanying the motion for new trial, Pena averred, “I was

aware that I was pleading guilty to the Judge without an agreed recommendation

and the Judge could sentence me to deferred probation or anywhere between 5

years and 99 years or life for the charges.” Pena also admitted that he understood

that the State was offering him 20 years in prison for the charges. Pena faults trial

counsel for predicting that the worst “he expected to happen was that I would get 5

years.”

      Trial counsel testified at the motion for new trial hearing that he believed the

trial court would be more lenient in assessing a sentence than the State’s offer of a

20-year sentence. Trial counsel explained that he was hopeful that facts adduced

during the pre-sentence investigation and the sentencing hearing would make the

judge consider a more lenient sentence, but counsel made clear that he never



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promised or told Pena he would receive a particular outcome, and counsel

discussed the punishment range with Pena several times.

      Pena’s affidavit, on its face, proves no more than a failed expectation that he

would receive a lighter sentence. See West, 702 S.W.2d at 633. Trial counsel

explained the rationale underlying his belief that Pena was likely to receive a

lighter sentence from the trial court, including Pena’s lack of any prior criminal

record, Pena’s service to the community, and the force of the mitigating evidence

available to offer at sentencing.       Counsel’s assessment was not objectively

unreasonable and, thus, is entitled to deference as a matter of trial strategy.

      Moreover, the record contains Pena’s signed acknowledgement that he

received and understood the statutory admonishments, which constitutes prima

facie evidence of a voluntary plea. See Cantu v. State, 988 S.W.2d 481, 484 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN.

art. 26.13(d) (West Supp. 2014). The written admonishments and Pena’s signature

indicate Pena understood the range of punishment and his guilty plea was knowing

and voluntary. See Cantu, 988 S.W.2d at 484. We therefore hold that the trial

court acted within its discretion in denying Pena’s motion for new trial.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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