                              NUMBER 13-08-347-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ISAIAS SOTO,                                                                Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Vela

      Appellant, Isaias Soto, was indicted for possession of cocaine in an amount more

than four grams but less than 200 grams, a second-degree felony (trial court cause no. 07-

CR-3106-G). See TEX . HEALTH & SAFETY CODE ANN . § 481.115(a), (d) (Vernon 2003).

Soto entered an “open” plea of guilty to the offense, and the trial court assessed

punishment at twenty years’ imprisonment, to run concurrent with a two-year sentence in
a separate possession-of-cocaine charge, a state jail felony (trial court cause no. 08-CR-

521-G). See id. § 481.115(a), (b). In four issues, Soto argues that 1) the trial court abused

its discretion in sentencing him to twenty years’ imprisonment, 2) his plea was involuntary,

3) the twenty-year sentence constituted cruel and unusual punishment, and 4) he received

ineffective assistance of counsel. We affirm.

                                      I. Plea Hearing

       After the trial court admonished Soto, he entered an open plea of guilty to the

above-mentioned offenses. With respect to cause number 08-CR-521-G, the prosecutor

recommended “two years to serve in the state jail.” With respect to cause number 07-CR-

3106-G, the prosecutor asked “for 20 years TDC, and to run both cases together. . . .

[W]e’re asking the Court to try to stay there, or as close to that as possible, Your Honor.”

In response, defense counsel stated, “[W]e would ask that the charges run concurrent.

And on the second–degree felony, Mr. Soto be given the lower end, with the two to twenty,

Your Honor. . . .”

       After the trial court assessed a twenty-year sentence in cause number 07-CR-3106-

G, defense counsel told the trial court, “I think that the original offer was capped at 15

years.” To this, the prosecutor remarked, “Your Honor, we had that before another

problem arose.” The trial court stated, “Well, there was no plea offer here. This was made

pursuant to an open plea.” The trial court, in cause number 07-CR-3106-G, assessed

punishment at twenty years’ imprisonment to run concurrent with the sentence assessed

in the state jail felony, cause number 08-CR-521-G. The trial court, in cause number 08-

CR-521-G, assessed punishment at two years’ confinement in a state jail facility to run

concurrent with the sentence assessed in cause number 07-CR-3106-G.


                                             2
         This appeal involves only Soto’s conviction in cause number 07-CR-3106-G.1

                                                      II. Discussion

A. Abuse of Discretion

         In his first issue, Soto argues the trial court abused its discretion in sentencing him

to twenty years’ imprisonment. A trial court abuses its discretion when it acts without

reference to any guiding rules and principles, or if it acts in an arbitrary or capricious

manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). A trial court

does not abuse its discretion if its ruling is at least within the zone of reasonable

disagreement.           Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001);

Montgomery, 810 S.W.2d at 390-91.

         In our review of a trial court’s determination of the appropriate punishment in any

given case, “a great deal of discretion is allowed the sentencing judge.” Jackson v. State,

680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Baldridge v. State, 77 S.W.3d 890, 893-94

(Tex. App.–Houston [14th Dist.] 2002, pet. ref’d). It is “the general rule that as long as a

sentence is within the proper range of punishment it will not be disturbed on appeal.”

Jackson, 680 S.W.2d at 814. A trial court will be found to have abused its discretion only

if there is no evidence or factual basis for the punishment imposed. Id.; Benjamin v. State,

874 S.W.2d 132, 135 (Tex. App.–Houston [14th Dist.] 1994, no pet.).

         Soto pleaded guilty to the offense of possession of cocaine in an amount more than

four grams but less than 200 grams, a second-degree felony. See TEX . HEALTH & SAFETY

CODE ANN . § 481.115(a), (d).                    Section 12.33 of the penal code provides that the



         1
           The trial court signed a docum ent entitled, “T R IAL C O UR T ’S C ER TIFIC ATIO N O F D EFEN D AN T ’S R IG H T O F
A PPEAL ” in which the court certified that this case “is not a plea-bargain case, and the defendant has the right
of appeal.”
                                                               3
punishment range for a second-degree felony is imprisonment for a term of not more than

twenty years or less than two years, and a fine not to exceed $10,000. See TEX . PENAL

CODE ANN . § 12.33(a), (b) (Vernon 2003).         The punishment assessed by the trial

court—confinement for twenty years—is within the punishment range established by the

Legislature for a person convicted of a second-degree felony. See id.

       Soto argues the trial court abused its discretion in three ways: (1) the trial court

“disregarded a previously agreed to ‘cap’ on the open plea”; (2) “the trial court sentence[d]

[him] to the maximum sentence without allowing [him] to withdraw his plea of guilty”; and

(3) “the sentence was unfair because of the method employed by the trial court to

determine the punishment.” We address each argument separately.

       1. Whether the Trial Court Disregarded A Cap On The Open Plea

       Absent a showing to the contrary, a reviewing court presumes the regularity of both

judgments and plea proceedings. Davis v. State, 130 S.W.3d 519, 522 (Tex. App.–Dallas

2004, no pet.); see Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986). The

appellant bears the burden to overcome this presumption. Davis, 130 S.W.3d at 522.

       “A plea agreement is a contractual arrangement. Until all of the necessary parties

agree to the terms of the contract, the agreement is not binding.” Ortiz v. State, 933

S.W.2d 102, 104 (Tex. Crim. App. 1996). A trial court is free to either accept or reject a

plea-bargain agreement.      Davis, 130 S.W.3d at 522.       Until the court accepts it, a

negotiated plea-bargain agreement is not binding on the parties. Ortiz, 933 S.W.2d at 104;

Holland v. State, 112 S.W.3d 251, 254-55 (Tex. App.–Austin 2003, no pet.). When

expressly approved by the trial court in open court, however, a plea-bargain agreement

becomes a binding contractual arrangement between the State and the defendant. Ortiz,

933 S.W.2d at 104; Wright v. State, 158 S.W.3d 590, 593-94 (Tex. App.–San Antonio
                                         4
2005, pet. ref’d). Under these circumstances, the trial court is bound to carry out the terms

of the agreement. Holland, 112 S.W.3d at 255. Thus, an accused is entitled to specific

performance of a plea agreement only if the trial court accepts and approves the

negotiated plea agreement. Id.; see Ortiz, 933 S.W.2d at 104; Perkins v. Court of Appeals,

738 S.W.2d 276, 283 (Tex. Crim. App. 1987).

         Nothing, other than Soto’s assertions in his appellate brief, indicates the existence

of a “previously agreed to ‘cap’ on the open plea.” In this case, the record provides no

evidence that a fifteen-year cap on punishment ever became binding, and Soto has cited

no authority suggesting that a trial court is bound by prior plea negotiations which did not

result in a plea-bargain agreement. Furthermore, the record does not reveal, nor does

Soto assert, that the trial court conducted a hearing on any plea agreement or punishment

cap pursuant to article 26.13(a)(2). See TEX . CODE CRIM . PROC . ANN . art 26.13(a)(2)

(Vernon 2009).2 No evidence in the record showed the trial court accepted any plea

agreement or punishment cap. A plea agreement does not become binding until all

necessary parties agree to its terms. Ortiz, 933 S.W.2d at 104; Davis, 130 S.W.3d at 522.

Because the record lacks evidence showing the trial court’s agreement to any plea bargain

or punishment cap, we conclude the fifteen-year punishment cap even if “agreed to,” never


         2
             Article 26.13 of the code of crim inal procedure provides, in relevant part:

         (a) Prior to accepting a plea of guilty . . . the court shall adm onish the defendant of:

                    ....

         (2) the fact that the recom m endation of the prosecuting attorney as to punishm ent is not
         binding on the court. Provided that the court shall inquire as to the existence of any plea
         bargaining agreem ents between the state and the defendant and, in the event that such an
         agreem ent exists, the court shall inform the defendant whether it will follow or reject such
         agreem ent in open court and before any finding on the plea. Should the court reject any such
         agreem ent, the defendant shall be perm itted to withdraw his plea his plea of guilty. . . .

T EX . C OD E C R IM . P R O C . A N N . art. 26.13(a)(2) (Vernon 2009).
                                                               5
became binding. Soto has presented no evidence, nor does the record reflect any, that

overcomes the presumption of regularity in the judgment and plea proceedings at issue.

See Davis, 130 S.W.3d at 522. Accordingly, we resolve this argument adversely to him.

       2. Whether The Trial Court Proceeded To Sentence Soto To The Maximum
          Sentence Without Allowing Him To Withdraw His Guilty Plea

       If a trial court rejects a plea-bargain agreement, the defendant’s plea is rendered

involuntary, and the defendant is entitled to withdraw the guilty plea. Holland, 112 S.W.3d

at 255 (citing Zinn v. State, 35 S.W.3d 283, 285 (Tex. App.–Corpus Christi 2000, pet.

ref’d)). Nothing, other than Soto’s assertions in his appellate brief, indicates that the trial

court “proceeded to sentence [him] to the maximum sentence without allowing [him] to

withdraw his plea of guilty.” Neither Soto nor his defense counsel made any request to

withdraw the guilty plea. We find that Soto has presented no evidence, nor does the

record reflect any, that overcomes the presumption of regularity in the judgment and plea

proceedings at issue. See Davis, 130 S.W.3d at 522.

       3. Method Employed For Punishment

       Soto also argues the trial court violated his right to due process because it arbitrarily

refused to consider the entire range of punishment and refused to consider mitigating

evidence, imposing a predetermined punishment. See U.S. CONST . amends. V, XIV; TEX .

CONST . art. 1, § 19.

       a. Applicable Law

       “The Constitutional mandate of due process requires a neutral and detached judicial

officer who will consider the full range of punishment and mitigating evidence.” Buerger

v. State, 60 S.W.3d 358, 363-64 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d); see

Gagnon v. Scarpelli, 411 U.S. 778, 786-87 (1973). A trial court denies due process when

                                               6
it arbitrarily refuses to consider the entire punishment range for an offense or it refuses to

consider mitigating evidence and imposes a predetermined punishment. Buerger, 60

S.W.3d at 364 (citing McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983)).

However, absent evidence to the contrary found within the appellate record, we presume

the trial court acted as a neutral and detached officer. Brumit v. State, 206 S.W.3d 639,

645 (Tex. Crim. App. 2006); Vick v. State, 268 S.W.3d 859, 861 (Tex. App.–Texarkana

2008, pet. ref’d); Jaenicke v. State, 109 S.W.2d 793, 796 (Tex. App.–Houston [1st Dist.]

2003, pet. ref’d).

        b. Analysis

        After the trial court accepted Soto’s guilty pleas, defense counsel told the trial court

that Soto had “one prior state jail conviction where he served one year in a state jail

facility.”3 Before the trial court assessed punishment, Soto told the trial court that he had

a drug problem.4 Upon hearing this, the trial court commented, “You have a long severe

history of substance abuse. The Court will review the exhibit that was marked.” The

exhibit admitted during the plea hearing with respect to cause number 07-CR-3106-G

showed Soto possessed 13.59 grams of cocaine. After the court assessed the twenty-year

sentence, it told Soto, “Mr. Soto, you need to get away from the drugs for a long time;

otherwise you’re going to kill yourself. And the only way to do that is to make sure you are



        3
         The nature of this offense does not appear in the record; however, we note that the offense was not
the subject of any enhancem ent provision.

        4
            Soto addressed the trial court as follows:

               Yes, sir. I’m just taking responsibility for what I did. You know, what I had on m e,
        and everything. And hopefully, you know, I get a good—you know, you do m e a good
        sentence, you know what I m ean.

               I had a drug problem at the tim e, you know. And— well, at the tim e I did, and I just
        hope when I get out, you know, I can start m y life over again. That’s about it, sir.
                                                         7
locked up.”

          The court’s statements reflect consideration of the evidence, Soto’s criminal history,

and the court’s knowledge of the dangerousness of substance abuse. The trial court’s

statements are not sufficient to rebut the presumption of a neutral and detached trial court.

The statements do not show that the trial court failed to consider the full punishment range,

nor do they reveal a predetermined punishment or a failure to consider mitigating evidence.

What the statements reflect is the trial court’s concern for Soto’s substance-abuse

problem. Therefore, we conclude the trial court did not infringe upon Soto’s due process

rights.

          The evidence, combined with the fact that Soto had a prior state jail felony

conviction, supported the trial court’s decision to sentence Soto to twenty years’

imprisonment. Because the trial court had before it evidence that supported the twenty-

year sentence, we cannot say it acted without reference to any guiding rules and principles,

or that it acted in an arbitrary or capricious manner. See Montgomery, 810 S.W.2d at 380,

390-91.      We conclude that the trial court’s sentence is at least within the zone of

reasonable disagreement.         Therefore, we hold the trial court properly exercised its

discretion by sentencing Soto to twenty years’ imprisonment. See Jackson, 680 S.W.2d

at 814. Issue one is overruled.

B. Voluntariness Of Plea

          In his second issue, Soto argues that his plea was involuntary because the twenty-

year sentence exceeded the punishment range explained to him by his defense counsel.

Specifically, he argues his guilty plea was involuntary because he pleaded guilty based

upon an erroneous belief that he would receive a sentence less than the maximum

punishment. He argues trial counsel explained to him that: (1) if he pleaded “open” to the
                                           8
trial court, then he would receive a sentence which was less than a sentence a jury would

give him; and (2) he believed he was protected by a fifteen-year punishment “cap” in which

the trial court was bound to sentence him to a term not to exceed fifteen years.

       1. Applicable Law

       “A defendant who pleads guilty after having been properly admonished of his

constitutional rights, who has knowingly and voluntarily waived those rights, and who has

been admonished as required by our constitutions and article 26.13 is presumed to have

entered a voluntary and knowing plea.” Mitschke v. State, 129 S.W.3d 130, 136 (Tex.

Crim. App. 2004) (footnote omitted). In considering the voluntariness of a guilty plea, the

appellate court “should examine the record as a whole.” Martinez v. State, 981 S.W.2d

195, 197 (Tex. Crim. App. 1998) (per curiam). “A finding that a defendant was duly

admonished creates a prima facie showing that a guilty plea was entered knowingly and

voluntarily.” Id. “A defendant may still raise the claim that his plea was not voluntary;

however, the burden shifts to the defendant to demonstrate that he did not fully understand

the consequences of his plea such that he suffered harm.” Id.

       The mere fact a defendant may have received a higher punishment than he or she

anticipated or hoped for does not render the guilty plea involuntary. Thomas v. State, 2

S.W.3d 640, 642 (Tex. App.–Dallas 1999, no pet.). Furthermore, a guilty plea is not

involuntary simply because the sentence exceeded what the defendant expected, even if

defense counsel raised that expectation. Houston v. State, 201 S.W.3d 212, 217-18 (Tex.

App.–Houston [14th Dist.] 2006, no pet.); Hinkle v. State, 934 S.W.2d 146, 149 (Tex.

App.–San Antonio 1996, pet. ref’d).




                                            9
      2. Analysis

      Here, the evidence does not rebut the presumption that Soto’s plea was voluntary.

The appellate record contains the “COURT ’S W RITTEN ADMONISHMENTS TO DEFENDANT ON

DEFENDANT ’S PLEA OF GUILTY OR NOLO CONTENDERE.” Attached to this document are two

documents.     The first is entitled “COURT ’S W RITTEN ADMONISHMENTS ON RANGE OF

PUNISHMENT ,” and the second is entitled “DEFENDANT ’S STATEMENT UNDERSTANDING

ADMONISHMENTS.” The first document provided, in relevant part:

      The range of punishment for the offense that you are charged with or are
      entering a plea of guilty/nolo contendere[5] to is for a second degree felony.
      Punishment for such a felony is noted in the paragraphs marked [xx] or
      highlighted. In addition to imprisonment or confinement, a fine may also be
      imposed.

               ....

      [ / ] Second Degree Felony Punishment, §12.33: One guilty of a Second
      degree felony shall be punished by imprisonment for any term of not more
      than 20 years or less than 2 years, by a fine not to exceed $10,000.

The second document, which was signed and initialed by Soto, stated, among other things,

that Soto understood the written admonishments and that he knowingly and voluntarily

pleaded guilty to the offense.          At the plea hearing,6 Soto’s responses to the trial

      5
       The word “guilty” is circled.

      6
       At the plea hearing, the trial court questioned Soto as follows:

      Court:           All right. Mr. Soto, I have two sets of paperwork. There’s one set of
                       paperwork for each case. In this paperwork the Court explains your rights,
                       the range of punishm ent in the one instance for a state jail offense, and the
                       other one for a second degree felony. It appears that you have signed and
                       initialed sections of the paperwork where you tell the Court that you
                       understand your rights and give up certain rights.

      Mr. Soto:        Yes, sir.

      Court:           Okay. Did you and your lawyer in fact go over all of this paperwork?

      Mr. Soto:        Yes, sir.

      Court:           Okay. And did he explain it all to you?
                                                   10
Mr. Soto:   Yes, sir.

Court:      And did you understand all of it?

Mr. Soto:   Yes, sir.

Court:      Did you sign it and initial it?

Mr. Soto:   Yes, sir.

Court:      And the Court notes that there is not an application for probation. And then
            there is the trial court’s notice to you at the conclusion of this paperwork that
            since this case is not being resolved through a plea agreem ent, you will
            have the right to appeal any decision m ade by the trial Court that is
            appealing [sic]. And I’m going to give you a copy of that. All right. Did you
            in fact go over this paperwork with your lawyer?

Mr. Soto:   Yes, sir.

Court:      And did you sign it?

Mr. Soto:   Yes, sir, I did.

Court:      Did anyone force you to sign it?

Mr. Soto:   No, sir.

Court:      Did anybody prom ise you anything to get you to sign it?

Mr. Soto:   No, sir.

Court:      And did you sign all of this freely and voluntarily?

Mr. Soto:   Yes, sir.

Court:      Okay. And do you understand that you do have the right to a jury trial, but
            by signing the paperwork and entering a plea you’re giving up that valuable
            and im portant constitutional right?

Mr. Soto:   Yes, sir, I understand.

Court:      And knowing all of that, do you wish to proceed today with a plea in each of
            these cases?

Mr. Soto:   Yes, sir.

Court:       All right. The Court will accept the paperwork that you signed with your
            lawyer, Mr. Soto. W e’ll do the oldest one first. In Cause 07-CR-3106, the
            State alleges that you unlawfully possessed cocaine in Nueces County on
            or about Septem ber 5, 2007, in an am ount m ore than four but less than 200
            gram s. To that allegation how do you plea?

Mr. Soto:   I plea guilty, sir.

Court:      In Cause 08-CR-521, I understand that the State is proceeding on a state
                                          11
court’s questions showed he understood the written admonishments and that he knowingly

and voluntarily pleaded guilty.

        Considering the totality of the circumstances viewed in light of the entire record, we

conclude Soto has failed to meet his burden that his plea was not voluntary. See Martinez,

981 S.W.2d at 197. The second issue is overruled.

C. Cruel And Unusual Punishment

        In his third issue, Soto argues his sentence constituted cruel and unusual

punishment.7 He contends the sentence is “grossly disproportionate” to the seriousness

of the crime committed and asks this Court to apply the Solem proportionate analysis test

to his sentence. See Solem v. Helm, 463 U.S. 277, 290-92 (1983).

        The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. CONST .

amends. VIII, XIV; see TEX . CONST . art. I, § 13. The Eighth Amendment is applicable to


                          jail am ount. So with regard to that indictm ent to the lesser included offense
                          of the offense alleged in the indictm ent, how do you plea?

        Mr. Soto:         Plea guilty, sir.

        Court:            All right. Has anyone forced you to plea guilty?

        Mr. Soto:         No, sir.

        Court:            Has anybody prom ised you anything[?]

        Mr. Soto:         No, sir.

        Court:            Are you pleading guilty to each case freely and voluntarily?

        Mr. Soto:         Yes, sir.

        Court:            Are you pleading guilty to each case because you are in fact guilty?

        Mr. Soto:         Yes, sir.

        7
         Soto’s appellate counsel filed a m otion for new trial, alleging, in relevant part: “The defendant feels
that the m axim um sentence of twenty years is too great a sentence given the surrounding circum stance of
the instant offense and the defendant’s relative lack of crim inal history. The defendant feels the sentence is
cruel and unusual punishm ent.” The m otion was overruled by operation of law.
                                                       12
punishments imposed by state courts through the Fourteenth Amendment’s Due Process

Clause. Robinson v. California, 370 U.S. 660, 667 (1962). The Eighth Amendment does

not require strict proportionality between the crime and the sentence; rather, it forbids

extreme sentences that are “grossly disproportionate” to the crime. Ewing v. California,

538 U.S. 11, 23 (2003). The precise contours of the “grossly disproportionate” standard

are unclear, but it applies only in “exceedingly rare” and “extreme” cases. See Lockyer v.

Andrade, 538 U.S. 63, 73 (2003). Texas courts have traditionally held that, as long as the

punishment assessed falls within the range prescribed by the Legislature in a valid statute,

the punishment is not excessive. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim.

App. 1973); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet.

ref’d); see also Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.–Corpus Christi 2004, no

pet.).8

          As previously stated, Soto’s sentence fell within the applicable range of punishment.

However, that does not end the inquiry. Texas courts recognize a prohibition against

grossly disproportionate sentences survives under the federal constitution apart from any

consideration whether the punishment assessed is within the statute’s punishment range.

Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.–Amarillo 2008, pet. ref’d); Mullins

v. State, 208 S.W.3d 469, 470 (Tex. App.–Texarkana 2006, no pet.).

          This Court has recognized that “the viability and mode of application of proportionate

analysis . . . has been questioned since the Supreme Court's decision in Harmelin v.

Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).” Trevino, 174 S.W.3d

at 928 (citing McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the



          8
        Vera v. State, Nos. 13-05-169, 170-CR, 2006 W L 5181930 *3 (Tex. App.–Corpus Christi Aug. 29,
2008, pet. ref’d) (m em . op., not designated for publication).
                                                 13
various opinions issued in Harmelin and their impact on the Solem decision)); see Sullivan

v. State, 975 S.W.2d 755, 757-58 (Tex. App.–Corpus Christi 1998, no pet.) (discussing the

implications of the Harmelin opinion and reviewing the proportionality of appellant's

sentence under the Solem and McGruder tests). Assuming, arguendo, the viability of a

proportionality review, as we did in Sullivan, we will apply both the Solem and McGruder

tests to the facts of this case. See Sullivan, 975 S.W.2d at 757-58.9 In both Solem and

McGruder, we look first at the gravity of the offense and the harshness of the penalty.

Solem, 463 U.S. at 290-91; McGruder, 954 F.2d at 316.

        1. Gravity of the Offense

        Soto pleaded guilty to possession of cocaine in an amount more than four grams

but less than 200 grams, a second-degree felony. See TEX . HEALTH & SAFETY CODE ANN .

§ 481.115(a), (d). With respect to this offense, the evidence showed he possessed 13.59

grams of cocaine. He also pleaded guilty to a separate charge of unlawful possession of

cocaine, a state jail felony.        Soto told the trial court that he had a drug problem.

Furthermore, the record reflects Soto had a prior conviction for a state jail felony for which

he had been incarcerated. When conducting an Eighth Amendment proportionality

analysis, we may consider the sentence imposed in light of the accused’s prior offenses.

Winchester, 246 S.W.3d at 390; Culton v. State, 95 S.W.3d 401, 403 (Tex. App.–Houston

[1st Dist.] 2002, pet. ref’d). The gravity of the offense weighs in favor of a finding that the

punishment was not excessive.




        9
         See also McGiffin v. State, No. 13-05-561-CR, 2006 W L 2294553, at *1 (Tex. App.–Corpus Christi,
Aug. 10, 2006, no pet.) (m em . op., not designated for publication).
                                                   14
         2. Harshness of the Penalty

         The punishment range for a second-degree felony is imprisonment for a term of not

more than twenty years or less than two years, and a fine not to exceed $10,000. TEX .

PENAL CODE ANN . § 12.33(a), (b). Thus, the Legislature considers possession of 13.59

grams of cocaine to be serious enough to deserve a sentence of up to twenty years. In

light of the seriousness of the crime to which Soto pleaded guilty and the fact that he was

a drug user who had a prior state jail felony conviction for which he had been incarcerated,

we cannot say his sentence is excessive. We therefore find that Soto’s sentence is not

grossly disproportionate to the offense for which he was convicted. This finding ends our

analysis under McGruder. See McGruder, 954 F.2d at 316; see also Sullivan, 975 S.W.2d

at 757. Because there is no evidence in the appellate record of the sentences imposed

for other similar crimes in Texas or for the same crimes in other jurisdictions, we can not

perform a comparative evaluation using the remaining Solem factors. See Solem, 463

U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58. Therefore, we conclude that Soto's

sentence is neither grossly disproportionate nor cruel and unusual. We overrule issue

three.

D. Ineffective Assistance Of Trial Counsel

         In his fourth issue, Soto argues he received ineffective assistance of trial counsel.

See U.S. CONST . amend. VI; TEX . CONST . art. 1, § 10. Specifically, he argues that: (1) but

for trial counsel’s failure to provide effective assistance of counsel, “the judge would not

have denied [Soto’s] request for community supervision”; (2) he “was greatly influenced in

his decision to waive his fundamental right of a trial by jury and enter an open plea of guilty

by the recommendations of his trial counsel”; (3) trial counsel failed to admonish him with

respect to the consequences of entering an open plea of guilty; (4) he relied on his

                                              15
counsel’s assertions that he was protected from the full range of punishment by a “cap”;

and (5) he would not have pleaded guilty if he had known the full consequences of his

plea.

        1. Standard Of Review

        When a defendant enters his or her plea upon counsel’s advice and subsequently

challenges the voluntariness of the plea on the basis of ineffective assistance of counsel,

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

range of competence demanded of attorneys in criminal cases and if not, (2) whether there

is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.” Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.

Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)); Forcey v. State, 265

S.W.3d 921, 925 (Tex. App.–Austin 2008, no pet.). Under the first part of the test, a

defendant must overcome a strong presumption that trial counsel was competent. Mitich

v. State, 47 S.W.3d 137, 141 (Tex. App.–Corpus Christi 2001, no pet.) (citing Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Under the second part of the test,

we consider both the circumstances surrounding the plea and the gravity of the

misrepresentation as it pertained to the defendant’s plea determination. Id. (citing Ex parte

Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999)).

        2. Analysis

        a. Request For Community Supervision

        Soto has presented no evidence that his attorney’s actions or advice misled him or

prevented him from making a voluntary and informed decision to enter a guilty plea. Soto

argues that, but for counsel’s failure to provide effective assistance, “the judge would not

have denied [Soto’s] request for community supervision.” At the plea hearing, Soto did not

                                             16
ask the trial court to place him on community supervision.10

       Article 42.12, section 3(a) broadly authorizes a trial judge after a plea of guilty to

place an eligible defendant on community supervision whenever he or she deems it “in the

best interest of justice, the public, and the defendant” to do so. Ivey v. State, No. PD-0552-

08, 2009 WL 322340, at *3 (Tex. Crim. App. Feb. 11, 2009); see TEX . CODE CRIM . PROC .

ANN . art. 42.12, § 3(a) (Vernon Supp. 2008). The granting of community supervision is a

privilege, not a right, and the decision to grant community supervision is wholly

discretionary. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). Even if we

assume counsel’s advice to Soto fell outside the range of competence demanded of

attorneys in criminal cases, Soto has failed to show there is a reasonable probability the

trial court would have placed him on community supervision had he requested it. See

Woodford v. Visciotti, 537 U.S. 19, 22-23 (2002) (holding that, when it is alleged counsel

performed deficiently at the punishment phase, defendant must prove there is a

reasonable probability that, but for counsel’s errors, the sentencing authority would have

reached a more favorable penalty-phase verdict). Soto’s assertion that the trial court would

have placed him on community supervision had he requested it is not supported by the

record. Accordingly, such a finding in this case would be based on speculation and

conjecture.    An appellate court will not find ineffectiveness based on speculation.

Jaenicke, 109 S.W.3d at 797; Henderson v. State, 29 S.W.3d 616, 624 (Tex.

App.–Houston [1st Dist.] 2000, pet. ref’d). Assertions of ineffectiveness must be firmly



       10
        During the plea hearing, Soto addressed the trial court as follows:

                W ell, I m ean, I think— I’ve never been to TDC before, sir. I’ve never really been
       convicted of any harsh crim e. I’ve never caused no problem s to the State of Texas besides
       the drug offenses, you know what I’m saying, sir? And 20 years, I m ean, I’m not a very
       violent offender. I don’t cause no trouble when I’m out. I don’t really bring no hurt towards
       people. I’m not an aggravated offender either, sir.
                                                   17
founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

       b. Waiver Of Jury Trial

       Soto’s argument that he “was greatly influenced in his decision to waive his

fundamental right of a trial by jury and enter an open plea of guilty by the recommendations

of his trial counsel” is not supported by the record. Again, such a finding in this case would

be based on speculation and conjecture. An appellate court will not find ineffectiveness

based on speculation. See Bone, 77 S.W.3d at 835; Jaenicke, 109 S.W.3d at 797;

Henderson, 29 S.W.3d at 624.

       c. Counsel’s Failure To Admonish

       Soto’s arguments that counsel failed to admonish him with respect to the

consequences of entering an open plea of guilty, that counsel advised him he was

protected from the full range of punishment by a “cap,” and that he would not have pleaded

guilty if he had known the full consequences of his plea, are not supported by the record.

Nevertheless, as we stated in issue two, the “COURT ’S W RITTEN ADMONISHMENTS ON RANGE

OF PUNISHMENT ” stated, in relevant part: “The range of punishment for the offense that you

are charged with or are entering a plea of guilty/nolo contendere to is for a second degree

felony.” (emphasis added). This document included the punishment range for a second-

degree felony. A check mark appears within brackets preceding this punishment range.

Soto signed and initialed the document entitled “DEFENDANT ’S STATEMENT UNDERSTANDING

ADMONISHMENTS” in which he indicated he understood the written admonishments. His

responses to the trial court’s questions at the plea hearing show that he understood the

punishment range for a second-degree felony and that he pleaded guilty to the offense

freely, knowingly, and voluntarily.



                                             18
       Based upon this record, Soto has not met his burden of proving that his guilty plea

was made as a result of ineffective assistance of counsel. See Mitich, 47 S.W.3d at 141.

Issue four is overruled.

                                      III. Conclusion

       We affirm the trial court’s judgment.



                                                    ROSE VELA
                                                    Justice


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

Memorandum Opinion delivered and
filed this 23rd day of April, 2009.




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