                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-15-00533-CR

                                             Jesse GARZA,
                                                Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CR7759W
                             Honorable Jefferson Moore, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: April 13, 2016

AFFIRMED

           On August 13, 2015, Appellant Jesse Ibanez Garza was sentenced to ten-years’

confinement in the Institutional Division of the Texas Department of Criminal Justice based on his

plea to one count of assault, family violence, alleged in a pre-grand jury information. Because the

trial court did not follow the plea agreement, Garza maintained the right to appeal his sentence.

           On appeal, Garza contends as follows: (1) the trial court erred in adjudicating Garza’s guilt

prior to informing Garza whether the trial court would follow the recommendation; (2) the trial

court erred in usurping the plea-bargaining power that belongs exclusively to the parties; (3) the
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trial court erred by failing to affirmatively inquire whether Garza wished to withdraw his plea of

no contest; and (4) his defense counsel provided ineffective assistance of counsel. We affirm the

trial court’s judgment.

                           FACTUAL AND PROCEDURAL BACKGROUND

A.     July 24, 2015 Plea Hearing

       On July 24, 2015, Garza appeared before the trial court on a felony information. Garza

agreed to several waivers, including waiving an indictment, the reading of the information, and

presentation to a grand jury. Garza also affirmed he desired to waive his right to trial by jury, right

to confront witnesses, and right against self-incrimination. The trial court approved the waivers

and read the plea agreement into the record. The trial court told Garza that he would be informed,

prior to the entry of his plea, whether the trial court would follow the agreement.

       This details for me your punishment agreement with the State. And I will let you
       know if I’m going to follow it prior to the entry of the plea. It says punishment will
       be assessed at five years in the Texas Department of Corrections. There will be a
       $1,500.00 fine. There is no application for community supervision, deferred
       adjudication. And there will be an affirmative finding of family violence. So it’s
       five years to do, sir; do you understand that?

Garza confirmed the trial court properly stated the plea agreement.

       The trial court further reiterated that if it chose not to follow the plea agreement, Garza

would maintain his right to appeal. Garza subsequently entered a plea of no contest, and the trial

court made the following pronouncements:

               I find that the evidence is sufficient to support the plea.

              Sir, I find your plea was voluntarily made, there’s sufficient evidence to
       support the plea, and that you’re mentally competent to enter into such a plea. I
       find you guilty, sir.

Based on the trial court’s inquiry regarding Garza’s past, the prosecutor informed the trial court

that Garza


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       . . . has a conviction for murder and a conviction for indecency with a child by
       contact, possession of drugs. Excuse me. A possession of marijuana, two ounces
       or less. As well as theft offenses.

The trial court ordered a pre-sentence investigation hearing and reset the matter for sentencing.

B.     August 13, 2015 Sentencing Hearing

       On August 13, 2015, the matter was re-called for sentencing. There was some discussion

on the record regarding whether Garza denied causing injury to the alleged victim. Garza

acknowledged before the trial court that he “punched her repeatedly in the face” and “stomped on

her ankles to try to break her ankles,” all to ensure that she could never leave him.

       The trial court reiterated its previous determination that Garza’s plea was voluntarily made,

there was sufficient evidence to support his plea, and Garza was mentally competent to enter the

plea. The trial court continued,

       Sir, I’m going to sentence you to ten years in the Texas Department of Corrections.
       That actually is higher than your plea bargain, sir. I’ll let you confer with your
       attorney as far as what you would like to do as far as your plea is concerned. I will
       give you credit for time served.

The parties conferred off the record. When the parties returned, Garza’s defense counsel made the

following announcement:

       The defendant, Jesse Garza, has decided to go with the ten years, Your Honor. With
       his back time, of course.

The trial court further explained that because it did not follow the plea bargain, Garza maintained

the right to appeal, and this appeal ensued.

       Although Garza raises four separate issues on appeal, the crux of his argument is his

defense counsel’s failure to provide effective assistance of counsel. Specifically, Garza contends

his defense counsel failed to object when the trial court erred in (1) adjudicating Garza guilty

without first informing Garza of its intent to follow or reject the plea bargain agreement, (2)

injecting itself into the plea-bargaining process, and (3) failing to confirm whether Garza desired
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to withdraw his plea in light of the trial court’s failure to follow the plea bargain agreement.

Accordingly, we analyze each allegation under the auspices of Garza’s ineffective assistance of

counsel issue.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

A.     Standard of Review

       In Strickland v. Washington, 466 U.S. 668, 687, 694 (1984), the United States Supreme

Court set out a two-prong test to determine whether trial counsel’s representation was ineffective:

(1) “[t]he defendant must show that counsel’s performance was deficient” and (2) “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 687, 694; accord Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App.

2013); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A reasonable probability

is a probability sufficient to undermine confidence in the outcome. Ex parte Moore, 395 S.W.3d

at 157 (citing Strickland, 466 U.S. at 687).

       When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the

defendant bears the burden of proof to affirmatively show that counsel’s representation “‘fell

below an objective standard of reasonableness’ under prevailing professional norms.” Id. (quoting

Strickland, 466 U.S. at 687–88); see also Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim.

App. 2011). To prove harm, Garza “must demonstrate that he was prejudiced by his attorney’s

performance or that ‘there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” Id. at 158 (footnote omitted) (quoting

Strickland, 466 U.S. at 694).

       Additionally, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999); accord Burgess v. State, 448 S.W.3d 589, 602 (Tex.
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App.—Houston [14th Dist.] 2014, no pet.). “There is a strong presumption that counsel’s conduct

fell within the wide range of reasonable professional assistance.” Thompson, 9 S.W.3d at 813.

Therefore, Garza “‘must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting

Strickland, 466 U.S. at 689).

       Appellate courts further view matters “from the viewpoint of an attorney at the time he

acted, not through 20/20 hindsight.” Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012); accord Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014). Our review of

trial counsel’s actions is “highly deferential and presumes that counsel’s actions fell within the

wide range of reasonable and professional assistance.” Garza v. State, 213 S.W.3d 338, 348 (Tex.

Crim. App. 2007) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)); see also

Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, pet. ref’d) (affirming

that in the absence of a developed record, an appellate court should not “speculate as to the reasons

why trial counsel acted as he did, rather a reviewing court must presume that the actions were

taken as part of a strategic plan for representing the client.”). Moreover, an “appellate court should

not find deficient performance unless the challenged conduct was ‘so outrageous that no competent

attorney would have engaged in it.’” Menefield, 363 S.W.3d at 593 (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)).

B.     Unpreserved Trial Court Error

       Garza raises several allegations of trial court error. For each, the State contends, and Garza

concedes on appeal, that Garza’s defense counsel failed to raise an objection before the trial court,

and thus the errors were not preserved for appeal. We agree.

       Texas Rule of Appellate Procedure 33.1(a) mandates that for a party to preserve error, the

defendant must present a timely objection to the trial court, state the specific grounds for the
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objection, and obtain a ruling. TEX. R. APP. P. 33.1(a). Because Garza’s defense counsel failed to

raise objection to any of his alleged errors on appeal, he failed to preserve error. Id.; see also

Hinojosa v. State, 433 S.W.3d 742, 761 (Tex. App.—San Antonio 2014, pet. ref’d). Accordingly,

Garza has waived appellate review on these claims individually.

       However, because these same objections are the basis for Garza’s contention that he did

not receive effective assistance of counsel, we address each in terms of counsel’s performance.

       1.      Adjudicated Guilty Without First Being Informed Whether Trial Court Would
               Follow or Reject the Plea Agreement

       Garza relies on Papillion v. State, 908 S.W.2d 621, 624 (Tex. App.—Beaumont 1995, no

pet.), for the proposition that the trial court’s pronouncement that Garza was guilty of the charged

offense, before informing Garza of whether the trial court would accept or reject the plea bargain,

was reversible error. Specifically, Garza contends the trial court erred by finding Garza guilty

without (1) “informing [Garza] whether the court accepts or rejects the said negotiated punishment

recommendation,” and (2) “affirmatively inquiring as to whether or not [Garza] wishe[d] to

withdraw his plea of guilty” when the trial court rejected the sentenced recommendation. Id.

       In Papillion, the trial court accepted the plea agreement and guilty plea and then instructed

Papillion that if he failed to either participate in the presentence investigation or appear at the

sentencing hearing, the trial court would not be bound by the plea agreement. Id. When Papillion

failed to adhere to one of the trial court’s additional conditions, the trial court assessed a greater

punishment than was contained within the agreed plea agreement. Id. The court of appeals

reversed the conviction because the trial court “made acceptance or rejection of said plea bargain

contingent on whether or not appellant complied with said additional, non-negotiated terms.” Id.

       During Garza’s plea hearing, the trial court inquired as follows:




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       Trial Court:     If I don’t follow your plea bargain, sir, I will allow you to withdraw
                        the plea and we’ll proceed to trial as if this hearing never occurred;
                        do you understand that?

       Garza:           Yes, sir.

Garza subsequently entered a plea of no contest and the trial court found him guilty of the charged

offense. The matter was reset for sentencing to allow for the preparation of a presentence

investigation report.

       On August 14, 2015, in addition to reviewing the documents contained within the trial

court’s file, the trial court heard testimony from Garza and arguments of counsel. The trial court

announced it did not intend to follow the plea agreement and recessed the proceedings to allow

Garza an opportunity to discuss his options with his defense counsel. When the matter was

recalled, Garza’s defense counsel announced that Garza “decided to go with the [the trial court’s

sentence of] ten years.”

       Contrary to Garza’s contentions, Garza entered a plea of no contest and was informed he

would be able to withdraw his plea if the trial court did not follow the plea agreement. When the

trial court made a determination that the assessment of punishment would fall outside the plea

agreement, the trial court followed the requirements of article 26.13(a)(2) and provided Garza an

opportunity to withdraw his plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (West Supp.

2015). Garza chose not to do so. Accordingly, the trial court did not err and we overrule this issue

on appeal.

       2.       Trial Court Usurped Plea-Bargaining Power

       Garza next contends the trial court “usurped [the] plea bargaining power that belongs

exclusively to the parties.” A plea bargain is a contract between the State and the defendant, and

they are bound by the terms of that agreement upon acceptance by the trial court. Moore v. State,

295 S.W.3d 329, 331 (Tex. Crim. App. 2009). “The only proper role of the trial court in the plea-
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bargain process is advising the defendant whether it will ‘follow or reject the [agreement]. . . .’”.

Id. at 332; see also Coleman v. State, 756 S.W.2d 347, 349 (Tex. App.—Houston [14th Dist.]

1988, no pet.) (holding trial court should avoid involvement in plea negotiations).

       Garza maintains the trial court involved itself in the negotiations and thus took part in plea

negotiations. See Doyle v. State, 888 S.W.2d 514, 517–18 (Tex. App.—El Paso 1994, pet. ref’d);

Coleman, 756 S.W.2d at 349. To the contrary, the evidence supports that Garza was given the

opportunity to decide whether to withdraw his plea and he chose to proceed based on the trial

court’s ten-year sentence. Accordingly, we conclude Garza failed to show that the trial court either

inserted itself into the negotiations or was part of the plea bargaining process. See Doyle, 888

S.W.2d at 517–18; Coleman, 756 S.W.2d at 349; see also Jennings v. State, 754 S.W.2d 389, 390

(Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).

       3.      Trial Court Failed to Make an Affirmative Determination Whether Garza Wished
               to Withdraw His Plea of No Contest

       Garza next argues the record does not reflect an affirmative determination that Garza did

not wish to withdraw his guilty plea. Article 26.13(a)(2) of the code of criminal procedure provides

that, if the court rejects the plea-bargain agreement, the defendant shall be permitted to withdraw

his guilty plea. TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2). During the sentencing hearing,

Garza affirmed that he committed the offense, that he knew the victim was injured, and that he

caused her injuries. Prior to imposition of sentence, the trial court informed both defense counsel

and Garza that the court did not intend to impose a sentence in accordance with the five-years’

confinement set forth in the plea agreement.

       The trial court took a brief recess and when the parties returned, defense counsel announced

Garza desired to proceed to sentencing. We remain mindful that Garza’s entry of the pre-

indictment plea, even for the full ten-year sentence, allowed Garza to be sentenced well below the


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twenty-five year minimum confinement for a habitual offender. See TEX. PENAL CODE ANN.

§ 12.42(d) (setting forth penalty range of “imprisonment in the Texas Department of Criminal

Justice for life, or for any term of not more than 99 years or less than 25 years”); Mendez v. State,

138 S.W.3d 334, 350 (Tex. Crim. App. 2004) (concluding that “[i]f [pleading guilty] had been in

his interest to do so, he would have known it.”).

       “[C]ourts routinely rely on counsel’s statements during oral argument and rely on these

representations when deciding cases.” Matthews v. State, 165 S.W.3d 104, 110 (Tex. App.—Fort

Worth 2005, no pet.); see also Quesada v. State, 751 S.W.2d 309, 311 (Tex. App.—San Antonio

1988, no pet.) (concluding “the court was entitled to rely upon the statement of defense counsel

[about] the admissibility of the video”). “Reliance on counsel’s statements is justified by Rule

3.03 of the Texas Disciplinary Rules of Professional Conduct, which forbids a lawyer from making

a false statement of material fact to a tribunal . . . .” United States Gov’t v. Marks, 949 S.W.2d

320, 327 (Tex. 1997). Absent any evidence to the contrary, the trial court reasonably relied on

defense counsel’s representation of Garza’s decision to proceed with his guilty plea and the trial

court’s sentence of ten-years’ confinement—even in light of a sentence in excess of the plea

agreement with the State.

C.     Analysis

       We are not to second guess counsel’s strategy through hindsight, nor will the fact that

another attorney might have pursued a different course support a finding of ineffectiveness. Blott

v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). Moreover, counsel is typically not

ineffective for following the wishes of his or her client. See, e.g., Jackson v. State, 76 S.W.3d 798,

802 (Tex. App.—Corpus Christi 2002, no pet.). The record before this court fails to establish, by

a preponderance of the evidence, that defense counsel’s challenged conduct was not reasonable



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under the totality of the circumstances and prevailing professional norms. We, therefore, conclude

Garza failed to satisfy the first prong of the Strickland test. We affirm the trial court’s judgment.



                                                   Patricia O. Alvarez, Justice

DO NOT PUBLISH




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