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COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

FERNANDO GARCIA,							Appellant,

v.


THE STATE OF TEXAS,						         Appellee.


On appeal from the 93rd District Court 
of Hidalgo County, Texas.
 

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Vela 
Memorandum Opinion by Justice Rodriguez


	Appellant, Fernando Garcia, pleaded guilty to intoxication manslaughter, see Tex.
Penal Code Ann. § 49.08 (Vernon Supp. 2007), and was sentenced to eight years'
imprisonment.  By two issues, Garcia contends that the trial court (1) violated his rights to
due process and fundamental fairness by engaging in plea negotiations, and (2) violated
the Texas Constitution by "issuing a proposed assessment of punishment before
determination of guilt."  We affirm.
I.  Background
	Garcia and Tomas Martinez were involved in a traffic accident that resulted in
Martinez's death.  Witnesses testified that Garcia lost control of his truck, struck a barrier,
flipped over the median, and landed on top of Martinez's vehicle.  Garcia was injured in the
accident and taken to a hospital where blood was drawn.  A blood test revealed that Garcia
had a blood alcohol content of 0.200.
	When the case was called for trial, defense counsel announced that Garcia would
be pleading guilty without a plea agreement.  After admonishing Garcia, the trial court
accepted Garcia's guilty plea.  The following exhibits were offered by the State:  (1)
Garcia's waiver of rights; (2) Garcia's hospital records; (3) several police reports; and (4)
several photographs of the accident scene.  Garcia offered a signed, handwritten
document that stated:
	I Fernando Garcia am entering my guilty plea in CR-3350-03-B in Criminal
Auxilary [sic] Court "A" based on my attorney Joe Conners, III representation
that the Court will sentence to the Texas prison between 5 and 8 years and
will not make an affirmative finding of a deadly weapon.  Signed June 14,
2007 at 2:10 pm.

The trial court admitted the document as defense exhibit one and stated that it was "an
accurate representation of what the Court discussed with the parties."
	The trial court proceeded to the sentencing phase.  The State presented State's
exhibit four, a certified copy of Garcia's previous conviction of driving while intoxicated, and
testimony from five of Martinez's family members who described the impact Martinez's
death had on the family.  The defense presented testimony from seven members of
Garcia's family who described Garcia's character and the impact the accident had on
Garcia and his family.  After each side rested, the trial court set a sentencing date and
stated,
	I don't know what the Court is going to do.  I don't mind telling everybody
here, the Court has not decided yet on what its going to do.  I advised the
attorneys of what the Court thinks it might do but I wanted to hear today's
testimony.  I wanted to hear from you fine people, from both sides and not
just one side . . . .  I'll think about what I feel and what the proper sentence
might be.
	At the sentencing hearing, the trial court heard from the State and the defense
before imposing its sentence.  The State's recommendation was that Garcia be sentenced
to prison for a term of fifteen years based on Garcia's prior criminal history, the fact that
Martinez was only twenty years old when he died, and the family's testimony.  Defense
counsel asked the trial court to sentence Garcia to a term of two to five years because
Garcia "has accepted responsibility for the death."  The trial court sentenced Garcia to
eight years' imprisonment.II.  Engaging in Plea Negotiations
	By his first issue, Garcia complains that the trial court denied him his rights to due
process and to a fair trial because it allegedly participated in the plea-bargaining process. 
Specifically, Garcia claims that although "the record is clear that there was no plea
bargain . . . there is evidence that the trial court engaged in or at least participated in some
way in the plea negotiations."  (Emphasis in original.)  In support of his argument, Garcia
points to the comment made by the trial court that defense exhibit one was an "accurate
representation of what the Court discussed with the parties."  Garcia asserts that "by
participating in this 'discussion,' the trial judge . . . participated or at the very least, involved
himself in plea negotiations."  (Emphasis in original.)
	In Perkins v. Court of Appeals, the court of criminal appeals explored the plea
negotiation process in a mandamus action and defined the term "plea bargaining."  738
S.W.2d 276, 282 (Tex. Crim. App. 1987).  The court stated:
	"[P]lea bargaining" is usually defined as follows:  "Plea bargaining is a
process which implies a preconviction bargain between the State and the
accused whereby the accused agrees to plead guilty or nolo contendere in
exchange for a reduction in the charge, a promise of sentencing leniency, a
promise of a recommendation from the prosecutor to the trial judge as to
punishment, or some other concession by the prosecutor that he will not
seek to have the trial judge invoke his full, maximum implementation of the
conviction and sentencing authority he has," i.e., it is the process where a
defendant who is accused of a particular criminal offense, and his attorney,
if he has one, and the prosecutor enter into an agreement which provides
that the trial on that particular charge not occur or that it will be disposed of
pursuant to the agreement between the parties, subject to the approval of
the trial judge.  Put another way, "plea bargaining is the process by which the
defendant in a criminal case relinquishes his right to go to trial in exchange
for a reduction in charge and/or sentence."

Id. (citations omitted).  In Ex parte Shuflin, the court of criminal appeals concluded that a
trial court should not participate in plea negotiations until an agreement has been reached. 
528 S.W.2d 610, 615-17 (Tex. Crim. App. 1975).  Participation is to be avoided in order
to prevent the appearance of judicial coercion or prejudgment of the defendant, since such
influence might affect the voluntariness of the defendant's plea.  Perkins, 738 S.W.2d at
282. 
	In this case, defense exhibit one sets out that defense counsel represented to
Garcia that the trial court would sentence him to between five and eight years in prison. 
The record also reveals that when the trial court admitted Garcia's exhibit, it stated that it
was "an accurate representation of what the Court discussed with the parties."  The trial
court then explained it had only advised the attorneys of what it thought it might do
regarding Garcia's sentence.  The trial court also stated, "I don't mind telling everybody
here, the Court has not decided yet on what it's going to do. . . .  I'll think about what I feel
and what the proper sentence might be.  And I will assess punishment on the day I gave
you which is Monday the 21st, I believe." 
	Based on our review of the record, including the trial court's statements regarding
Garcia's guilty plea and his sentencing, we cannot conclude that the trial court engaged in
plea negotiations.  See Perkins, 738 S.W.2d at 282.  Without a record of the discussion
the trial court had with the parties, we would have to assume that during that discussion
the trial court or the State engaged in plea negotiations with Garcia by making an offer of
leniency in exchange for a guilty plea.  See id.  We decline to do so and overrule Garcia's
first issue.
III.  Issuing a Proposed Sentence
 In his second issue, Garcia asserts that by issuing a proposed sentence, his rights
under the Texas Constitution were violated. Garcia appears to base this alleged
constitutional violation on the assertion that when the trial court allegedly "discussed the
idea of a plea, there was at least the implicit admission of guilt during this discussion." 
Relying on State v. McDonald, 662 S.W.2d 5, 7, 9 (Tex. Crim. App. 1984), Garcia also
contends that the discussion between the parties and the trial judge, a discussion that he
compares to the viewing of a pre-sentence investigation, is tantamount to a pre-sentence
determination of guilt and should not be condoned. See id. (providing that the trial court's
"practice of issuing proposed assessments of punishment is violative of Art. 1, Sec. 19 of
the Texas Constitution" and "[t]he [trial court's]  inspection of the pre-sentence reports prior
to determinations of guilt is . . . violative of due process").  Garcia further suggests that,
during the discussion, "[t]here may have been admissions or confessions that may not
normally have been admissible in front of a jury."  However, as we have concluded above,
the trial court did not participate in plea negotiations and, as previously noted, we are
without a record of the discussion.  Therefore, we cannot conclude that Garcia's rights
under the Texas Constitution were violated.  We overrule Garcia's second issue.
IV. Conclusion
	We affirm.
 
  				NELDA V. RODRIGUEZ
 Justice

Do not publish.				
Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and 
filed this 7th day of August, 2008.








 
