
                              NO. 07-12-0301-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL C

                              NOVEMBER 16, 2012
                        _____________________________


                              ALMA ROSA GARZA,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

                FROM THE 264TH DISTRICT COURT OF BELL COUNTY;

               NO. 66564; HONORABLE MARTHA J. TRUDO, PRESIDING
                        _____________________________


                             Memorandum Opinion
                        _____________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Alma Rosa Garza was convicted of theft of over $100,000 but less  than
$200,000 and sentenced to fourteen years confinement.  She claims her  trial
counsel was ineffective.  We affirm the judgment.
      An appellant has the burden to prove that her  counsel  was  deficient
and that the deficiency caused prejudice.   Strickland  v.  Washington,  466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith  v.  State,  286
S.W.3d 333, 340 (Tex. Crim. App. 2009).  Moreover,  she  must  do  so  by  a
preponderance of the evidence, Thompson v. State, 9 S.W.3d  808,  812  (Tex.
Crim. App. 1999), and there is a strong presumption that  counsel's  conduct
falls within a wide range of reasonably professional assistance.   Robertson
v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App.  2006).   Additionally,  a
defendant is entitled to effective assistance of  counsel  during  the  plea
bargaining process.  Ex parte Wilson, 724 S.W.2d 72,  73  (Tex.  Crim.  App.
1987).  That right obligates counsel to convey any plea offer  in  a  manner
that enables his client to make an informed decision.  Id. at 74.   However,
it must be remembered that the authority to accept or reject  a  plea  offer
ultimately resides with the accused, even  if  counsel  does  not  like  the
decision.  Id.
      Here, appellant filed a motion for new trial raising the issue of  the
effectiveness of counsel.  A hearing was held on  the  motion,  after  which
the court denied the motion.
      Appellant now argues that her trial counsel failed "to  fully  explain
that a plea of guilty" and one of  nolo  contendere  "have  the  same  legal
effect."  Thus, "[b]ased upon that deficient advice, [she]  entered  a  plea
of no contest . . . without a plea bargain which resulted in a  sentence  of
fourteen (14) years rather than a plea of guilty  with  a  plea  bargain  of
community supervision with a finding of guilt being deferred  for  a  period
of ten . . . years."  We overrule the issue.
      The evidence of record illustrates that appellant was offered  a  plea
bargain of ten years deferred adjudication if she  plead  guilty.   However,
if she opted to plead nolo contendere (as she apparently  desired  to  avoid
whatever affect a theft  conviction  would  have  on  subsequent  employment
efforts), there would be no agreement as to punishment.  Instead,  her  plea
would be considered "open."  Appellant's counsel discussed the  alternatives
with his client for an hour or more.  He  also  1)  explained  to  her  "the
danger  of  [an]  open  plea  as  opposed  to  a  sure  thing  of   deferred
adjudication," 2) afforded her the opportunity  to  ask  questions,  and  3)
thought she understood the situation.  But, counsel did concede he  did  not
expressly tell her that a "plea of no contest was like pleading guilty."
      Before the plea was accepted, appellant affirmed that she was pleading
no contest "freely  and  voluntarily."   So  too  did  she  state  that  she
understood that 1) there  was  no  plea  bargain  as  to  "time,  probation,
straight probation, deferred adjudication or anything else," 2)  "the  Court
could in fact sentence [her] to time in the penitentiary," and  3)  she  had
no  recourse  if  the  judge  sentenced  her  to   prison.    Despite   this
information, she persisted in entering a  plea  of  nolo  contendere,  which
plea resulted in a fourteen-year prison sentence.
      Appellant cites us to no authority imposing a  duty  upon  counsel  to
expressly inform a client wanting to plea nolo contendere that such  a  plea
has the same legal effect as a guilty plea.   Admittedly,  one  could  argue
that the absence of such knowledge may be one of many  factors  to  consider
when assessing whether a defendant's decision to plead  guilty  was  knowing
and voluntary or whether trial counsel sufficiently assisted his  client  in
making an intelligent decision.  Yet, appellant  never  testified  that  she
would have accepted the plea bargain  offered  had  she  been  told  that  a
guilty plea and a nolo plea had the same legal effect.  Nor can it  be  said
that knowing the possibility of her being sentenced to  prison  was  somehow
denied her.  Indeed,  counsel  discussed  the  "dangers"  of  pleading  nolo
contendere with her while the trial court  admonished  her  that  she  could
still  be  sentenced  to  prison  without   recourse.    And,   when   these
circumstances are considered, we cannot say that the trial  court  erred  in
rejecting the allegation that counsel denied her effective assistance.
      Instead, one can logically deduce from the record that  appellant  did
not want to suffer a finding of guilt, attempted to avoid such a finding  by
pleading nolo contendere, knew the "dangers" of such  a  plea  and  that  it
could still result in a prison term,  intentionally  rejected  an  offer  of
community supervision to avoid pleading guilty, and opted to roll  the  dice
by engaging in an open plea.  That is not the  stuff  depicting  ineffective
assistance of counsel, but rather evidence of  a  knowing  decision  coupled
with an undesirable result.
      In sum, there is sufficient evidence of record upon  which  the  trial
court  could  conclude  that  the  actions  of  trial   counsel   were   not
ineffective.
      Accordingly, the judgment is affirmed.

                                        Brian Quinn
                                        Chief Justice

Do not publish.
