
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


M E M O R A N D U M   O P I N I O N

 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
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. 
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.

		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.

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
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
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.	

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
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.
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). 

