
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-132 CR

____________________


EUSEBIO SOLORANZO COSTILLA, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 410th District Court
Montgomery County, Texas

Trial Cause No. 00-08-05140-CR




OPINION
 Eusebio Soloranzo Costilla appeals his conviction for the third degree felony offense
of driving while intoxicated.  Costilla was sentenced to five years of incarceration in the
Texas Department of Criminal Justice, Institutional Division, following a non-negotiated
guilty plea to the court.  He presents four points of error.
	Point of error one contends that the appellant's conviction must be reversed because
the trial court failed to substantially comply with Article 27.13 of the Texas Code of
Criminal Procedure.  In a felony case, a plea of "'guilty' . . . must be made in open court
by the defendant in person[.]"  Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 1989). 
Costilla, a Spanish-speaking Mexican national, did not speak at all during the initial plea
hearing.  Although Costilla was present, when the trial court asked, "How does he plea?",
it was defense counsel who responded, "Guilty, your Honor." 
	Because this error is raised for the first time on appeal, we must first determine
whether the issue involves a right that is subject to procedural default.  See Marin v. State,
851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled in part on other grounds by Cain
v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).  The failure to enter any plea at
all would, apparently, void the conviction, because without a plea no issue is joined.  See
Pate v. State, 17 S.W. 461, 462-63 (Tex. Ct. App. 1886); Jefferson v. State, 7 S.W. 244,
245 (Tex. Ct. App. 1888).  Although not mentioned in the "short list" of void judgments
more recently recognized by the Court of Criminal Appeals, if the procedural error in
taking the plea prevented jeopardy from attaching to the proceeding, such an error would
not be subject to procedural default.  See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim.
App. 2001). 
	The intermediate courts have split on the effect of a guilty plea that is entered by
counsel on defendant's behalf, in defendant's presence but in contravention of Article
27.13.  The Texarkana Court of Appeals held the conviction was void.  White v. State, 929
S.W.2d 502, 504 (Tex. App.--Texarkana 1996, no pet.).  The San Antonio Court of
Appeals disagreed, and held that although it entered a voidable judgment, the trial court
had jurisdiction over the cause.  See Martinez v. State, 5 S.W.3d 722, 725-26 (Tex. App.--San Antonio 1999, no pet.). (1) 
	The fact that the guilty plea is uttered by counsel rather than the defendant does not
mean that the subsequent proceedings are invariably void.  Where the defendant was
present in court while his attorney entered the plea for him, the Court of Criminal Appeals
found compliance "not only with the spirit but with the letter of Article 27.13. . . ." 
Shields v. State, 608 S.W.2d 924, 927 (Tex. Crim. App. 1980).  Although he did not
speak when asked for his plea, in Shields the defendant answered affirmatively when the
trial judge asked him if his plea was voluntary.  Id.  From this, we gather that Article
27.13 is complied with, regardless of who actually speaks, so long as it occurs in open
court, in the presence of the defendant, who acknowledges the plea as his.  See also Manoy
v. State, 7 S.W.3d 771, 778 (Tex. App.--Tyler 1999, no pet.).    
	Given Costilla's silence throughout the hearing, can we determine from the record
that Costilla personally entered his plea?  Costilla appeared in person at the hearing and
also executed written statements and waivers that clearly indicate he pleaded guilty at the
hearing.  In those papers, which were translated into Spanish by defense counsel, Costilla
waived any rights, "[u]nder Art. 1.14," secured to him by law.  See Tex. Code Crim.
Proc. Ann. art. 1.14 (Vernon Supp. 2002).  Unfortunately, defense counsel was
apparently acting as his interpreter during that first hearing, and all communications with
the court passed through counsel.  Costilla does not speak English and therefore may not
have been able to understand or communicate with the court.  Nevertheless, Costilla's
affidavit, attached to his amended motion for new trial, which he filed after new counsel
was appointed, is silent regarding that first hearing.  In his affidavit Costilla claims: (1)
that he was requesting probation and (2) that he thought he would get a two to three year
sentence.  Conspicuously absent from his affidavit is any claim that Costilla thought he had
not entered a plea or had pleaded not guilty and asked for a jury trial.  From his comments
in the presentence investigation report, during the sentencing hearing, and on motion for
new trial, we are confident in concluding that Costilla was aware that he was pleading
guilty and that he would be convicted without contesting his guilt for the offense.  Point
of error one is overruled.  
	Point of error two contends that the judgment must be reversed because the trial
court "did not comply with the standard plea colloquy with the defendant in direct violation
of Article 26.13(a), rendering the plea, if any, involuntary."  Substantial compliance with
Article 26.13 exists when the trial court has undertaken to admonish the defendant, the
sentence given was within the range prescribed by law, and the defendant has failed to
affirmatively show harm.  See Hughes v. State, 833 S.W.2d 137, 139-40 (Tex. Crim. App.
1992).  Costilla concedes that he signed a written waiver of oral admonishments and that
he received written admonishments.  Those admonishments were translated into Spanish
for him by trial counsel.  Before the trial court accepted the plea, trial counsel assured the
trial court that Costilla understood the admonishments.  Costilla argues that it was
improper for the trial court to accept his waiver of oral admonishments because the
appellant struck out the line that stated, "I am totally satisfied with the representation
provided by my counsel and I received effective and competent representation."  He
further argues that the trial court should have sua sponte appointed an interpreter rather
than permit counsel to act as a translator. 
	Costilla failed to meet his burden to show that he entered the plea without
understanding the consequences of his action and that he suffered harm.  See Eatmon v.
State, 768 S.W.2d 310, 311-12 (Tex. Crim. App. 1989).  Costilla argues that his case falls
within the exception for error that is not susceptible to a harm analysis because of the lack
of dialogue in the record.  See Cain, 947 S.W.2d at 264.  We disagree.  In his amended 
motion for new trial and attached affidavit, Costilla only complained of counsel's
representation in the later sentencing hearing.  Likewise, a letter Costilla wrote to the court
did not mention the plea hearing.  Costilla never identified any admonishment that was not
communicated to him, although he had the opportunity to do so, either in the sentencing
hearing or in his motion for new trial affidavit. Regardless of the extent of Costilla's
dissatisfaction with his attorney, he has not connected any act or omission by the attorney
to the plea proceeding.  Point of error two is overruled.
	Point of error three contends that Costilla was denied effective assistance of counsel
at the "punishment phase" of the trial.  In his appellate brief, Costilla limits his complaints
to counsel's performance during the sentencing hearing.  The appellant's brief on this point
of error does not address counsel's performance during the initial plea proceeding.  To
show ineffective assistance of counsel, an appellant must demonstrate counsel's
representation fell below an objective standard of reasonableness based on prevailing
professional norms, and that, but for counsel's errors, there is a reasonable probability the
result of the proceeding would have been different.  Strickland v. Washington, 466 U.S.
668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988
S.W.2d 770 (Tex. Crim. App. 1999).  Any allegation of ineffective assistance must be
firmly founded in the record.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).  The presumption of reasonable effectiveness cannot ordinarily be overcome absent
evidence in the record of the attorney's reasons for his conduct.  See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994).  
	During the sentencing hearing, Costilla stated that he wanted probation.  Defense
counsel proceeded to question Costilla about his preference for community supervision,
which would require Costilla to prove monthly that he was not drinking, and the possibility
of instead asking for a short term of imprisonment.  On appeal, Costilla complains that
counsel failed to argue for probation.  We do not have the benefit of a hearing in which
counsel explains why he did not argue strenuously for a term of community supervision. 
It could be that he realized such a request would be futile.  According to the presentence
investigation report, Costilla admitted to having a drinking problem, had many prior
incidents of driving while intoxicated, failed to successfully complete probation in the past,
had twice been sentenced to prison terms for felony driving while intoxicated, and
continued to drink after the first hearing in this case.  Point of error three is overruled.
	Point of error four urges that the appellant was denied conflict-free representation
during the sentencing hearing.  "In order for a defendant to demonstrate a violation of his
right to the reasonably effective assistance of counsel based on a conflict of interest, he
must show (1) that defense counsel was actively representing conflicting interests, and (2)
that the conflict had an adverse effect on specific instances of counsel's performance."  Ex
parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997) (citing Cuyler v. Sullivan,
446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).  The "actual conflict" asserted
on appeal is the conflict between the appellant's desire for probation and defense counsel's
"own goal and interest, which was that his client should go to prison."  Costilla mentions
that trial counsel was aware that his client was unhappy with the lack of progress in the
case, but Costilla does not explain what interest of defense counsel conflicted with the
defendant's interests.  Although he vaguely hints at a financial motive for ending the case
quickly, nothing in the record suggests that defense counsel would receive a pecuniary
benefit from any particular outcome of the case.  
	The appellant fails to demonstrate that trial counsel was required to make a choice
between advancing his client's interest in a fair trial or advancing his own interest,
pecuniary or otherwise.  See generally Monreal v. State, 947 S.W.2d 559, 565 (Tex.
Crim. App. 1997) (Defense counsel's inartful questioning about plea bargain negotiations 
did not create a conflict of interest where none otherwise existed).  There may have been
discord between attorney and client, but no conflict of interest has been exposed.  Point
of error four is overruled.  The judgment is affirmed.
	AFFIRMED.

							_______________________________
								RONALD L. WALKER
									Chief Justice

Submitted on May 16, 2002
Opinion Delivered August 14, 2002
Publish

Before Walker, C.J., Burgess and Gaultney, JJ.


DISSENTING OPINION

	I vigorously dissent to issues one and two.  I reluctantly concur with issues three
and four.  This case has several troubling issues.  First, a few chronological events. The
indictment was returned to the 410th District Court of the Honorable K. Michael Mayes
on August 22, 2000.  In September, 2000, Judge Mayes, Costilla and attorney George
Renneberg signed a scheduling order.  On September 12, 2000, Renneberg filed a "Motion
to Appoint Translator" (2) alleging Costilla "speaks the Spanish language."  On September
26, 2000, Costilla filed a letter requesting to change lawyers.  On January 12, 2001,
Costilla and Renneberg appeared before the Honorable Lee Alworth, a senior judge
assigned to Montgomery County, for the guilty plea.  On February 27, 2001 a pre-sentence
investigation was filed.  On March 2, 2001, the punishment hearing was conducted before
the Honorable Charles Hearn, a senior judge assigned to Montgomery County.  On March
9, the judgment was signed by Judge Alworth.  On March 22, 2001 Renneberg filed a
motion for new trial and appointment of new counsel, along with a motion to withdraw as
counsel.  That same day, Costilla writes a second letter to Judge Mayes complaining of
Renneberg.  On March 26, 2001, Judge Mayes granted the motion to withdraw and
appointed Ernest Barrientos as new counsel.  On April 2, 2001, Barrientos filed an
amended motion for new trial.  On April 25, 2001, Judge Hearn heard, and denied, the
motion for new trial. 
The Article 27.13 (3) Issue 

	At the guilty plea, the dialog was only between the judge and Renneberg.  Unlike
the cases cited by the majority, (4) Costilla was never questioned by the judge nor asked to
validate any of Renneberg's assertions to the court.  Furthermore, the judge never asked
Renneberg to "translate" any questions to Costilla.  This, in my opinion, is not substantial
compliance with article 27.13.  Accord Mendez v. State, 892 S.W.2d 81, 82-84  (Tex.
App.--Texarkana 1994), rev'd on other grounds, 914 S.W.2d 579 (Tex. Crim. App.
1996).
	The majority unfairly chides Costilla when they note "[c]onspicuously absent from
his affidavit is any claim that Costilla thought he had not entered a plea or had pleaded not
guilty and asked for a jury trial."  The first amended motion for new trial, along with the
affidavit, was filed April 2, 2001, yet the reporter's record of the guilty plea was not
certified until September 4, 2001.  Apparently the majority either requires Barrientos,
Costilla's new counsel, to be clairvoyant or for Costilla to be knowledgeable of article
27.13 and its legal ramifications. The legal deficiencies of the guilty plea could not have
been discovered by Barrientos until he reviewed the reporter's record of that hearing.
	I would sustain issue one.
The Article 26.13 (5)
  Issue


	The majority also finds substantial compliance with article 26.13 because Costilla
executed a "written waiver of oral admonishments and that he received written
admonishments."  It is true there is a document in the record entitled "Admonishments,
Statements and Waivers" that contains markings indicating Costilla fully understood the
various admonitions, statements and waivers.  Included in this document is a statement
indicating Costilla understood only Spanish and that Renneberg had explained the
document to Costilla in that language.  Also included in the document is a preprinted
statement dealing with satisfaction of representation by the attorney.  This preprinted
statement was lined through; yet there was no inquiry by the judge concerning this
deletion.  However, there is a letter from the State, filed with this court, which indicates
the line through was made by Renneberg, without confirmation by Costilla.  In any event,
this should have put the judge on notice of potential problems; problems that could have
been avoided by asking Costilla about the written admonishments.
The Translator Issue

	This is really the central issue of this entire appeal.  The record is unclear about the
language skills of Costilla, but there is adequate information to determine his first language
was Spanish.  Even the majority acknowledges "Costilla does not speak English".
Renneberg, had filed a "Motion to Appoint Translator"(see footnote 1) alleging Costilla
"speaks the Spanish language."  There is a document in the record entitled
"Admonishments, Statements and Waivers" that contains a statement indicating Costilla
understood Spanish and that Renneberg had explained the document to Costilla in that
language.  The pre-sentence investigation was conducted in Spanish.  There was a
translator present for the punishment hearing. 
	The right to have a translator is firmly entrenched in our jurisprudence.  In Baltierra
v. State, 586 S.W.2d 553, 559 (Tex. Crim. App. 1979) (footnote omitted), the Court
stated:
		Accordingly we hold that when it is made known to the trial court that
an accused does not speak and understand the English language an
interpreter must be furnished to translate to the accused the trial proceedings,
including particularly testimony of the witnesses presented by the State. In
the absence of the opportunity to be aware of the proceedings and the
testimony of the witnesses against her, appellant was denied the
constitutional right of confrontation and, that right not being knowingly and
intelligently waived, her trial and conviction are null and void.

In Hernandez v. State, 862 S.W.2d 193, 197 (Tex. App.--Beaumont 1993, pet. ref'd), this
court said:
		By the denial of appellant's motion for an interpreter, appellant is
being penalized because he understands and speaks some English.  The
record is woefully deficient as to any meaningful inquiry into appellant's
understanding of English as it relates to criminal proceedings.  The
participants below were more concerned about the cost of the translator than
the plight of the non-English speaking defendant.  We hold the trial court
committed reversible error in refusing appellant's request for a translator
without first determining appellant's understanding of English as it relates
to criminal proceedings.
 
	Had there been a proper translator (6) at the guilty plea, the first two issues, and
perhaps all the issues, raised by Costilla would be non-existent..  I believe the "guilty
plea" judge should have appointed Costilla a translator, as the motion requested (and as
the "punishment" judge did) and this failure was reversible error.  See Hernandez, 862
S.W.2d at 197.
	Therefore, I would sustain issue two.
Ineffective Assistance of Counsel and Conflict Issue

	A first-year law student could have predicted this appellate issue; yet it was almost
completely ignored at the trial level.  Costilla had written a letter to the court complaining
about Renneberg prior to the guilty plea.  The "I am totally satisfied with the
representation provided by my counsel" was lined through in the plea papers.  Yet no
inquiry was made about the issue during the guilty plea.  On March 2, 2001, Renneberg
filed an "Attorney Fees Expense Claim" which was approved by Judge Alworth.  Within
that form is the notation "client quite unhappy w/ lack of progress in doing it his way."
This is the same day as the punishment hearing, but again, there is no inquiry.  
	The next instance of the issue arising is in the amended motion for new trial filed
by Barrientos.  Amazingly, Judge Hearn would not allow an evidentiary hearing on the
issue. (7)  It is unquestioned that a motion for new trial is a proper vehicle for raising
ineffective assistance of counsel.  See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim.
App. 1993).  This court has consistently urged appellants to make a proper record.  See
State v. Pilkinton, 7 S.W.3d 291, 293 (Tex. App.--Beaumont 1999, pet. ref'd); Clark v.
State, 952 S.W.2d 882, 890 (Tex. App.--Beaumont 1997, no pet.).  Without such an
evidentiary hearing, the presumption of reasonable effectiveness cannot be overcome.  See
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  However, in overruling
the motion for new trial without allowing evidence on the issue, Judge Hearn effectively
precluded resolution of the issue on direct appeal and increased the likelihood of litigation
through a post-conviction writ of habeas corpus.  See Thompson v. State, 9 S.W.3d 808,
814-15 (Tex. Crim. App. 1999).
	Consequently, I concur with the majority that this court cannot determine the issue
because there is an inadequate record.  Thus I too would sustain issues three and four.
	No one can seriously question the guilt of Eusebio Costilla, but that is not the point. 
The point is there are certain procedures that should and must be followed to insure the
integrity of the system.  I believe the procedures used in this case fall below that standard
and reflect poorly upon our system.  This court should reverse the cause and remand for
a new trial.




                                                                                     DON BURGESS

                                                                                           Justice

Dissent Delivered
August 14, 2002
Publish
1.   Both opinions concerned plea-bargain cases decided prior to White v. State, 61
S.W.3d 424, 429 (Tex. Crim. App. 2001).  
2. The Texas Code of Criminal Procedure provides, in part:
 Art. 38.30. Interpreter
		(a) When a motion for appointment of an interpreter is filed by any
party or on motion of the court, in any criminal proceeding, it is determined
that a person charged or a witness does not understand and speak the English
language, an interpreter must be sworn to interpret for him.  Any person
may be subpoenaed, attached or recognized in any criminal action or
proceeding, to appear before the proper judge or court to act as interpreter
therein, under the same rules and penalties as are provided for witnesses. 
In the event that the only available interpreter is not considered to possess
adequate interpreting skills for the particular situation or the interpreter is
not familiar with use of slang, the person charged or witness may be
permitted by the court to nominate another person to act as intermediary
between himself and the appointed interpreter during the proceedings.
Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2002).
3. Article 27.13 provides, "A plea of 'guilty' or a plea of 'nolo contendere' in a
felony case must be made in open court by the defendant in person;  and the proceedings
shall be as provided in Articles 26.13, 26.14 and 27.02.  If the plea is before the judge
alone, same may be made in the same manner as is provided for by Articles 1.13 and
1.15."  Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 1989).
4. See Shields v. State, 608 S.W.2d 924, 927 (Tex. Crim. App. 1980)("In open court
the trial court made certain inquiries of the appellant personally and of his counsel"), and
Manoy v. State, 7 S.W.3d 771, 778 (Tex. App.--Tyler 1999, no pet.) ("Appellant
responded affirmatively when asked whether it was his understanding that he was 'pleading
guilty to the indictment as read by the District Attorney.'  Appellant also responded
affirmatively to questions asking whether he understood that a jury would not decide issues
with regard to his guilt or innocence and whether he understood that the only issue to be
decided was one of punishment for 'pleading guilty to the offense as alleged in the
indictment.'")
5. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 2002), provides:
Art. 26.13. Plea of guilty
	(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall
admonish the defendant of:
	(1) the range of the punishment attached to the offense;
	(2) the fact that the recommendation of the prosecuting attorney as to punishment
is not binding on the court.  Provided that the court shall inquire as to the existence of any
plea bargaining agreements between the state and the defendant and, in the event that such
an agreement exists, the court shall inform the defendant whether it will follow or reject
such agreement in open court and before any finding on the plea.  Should the court reject
any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo
contendere;
	(3) the fact that if the punishment assessed does not exceed the punishment
recommended by the prosecutor and agreed to by the defendant and his attorney, the trial
court must give its permission to the defendant before he may prosecute an appeal on any
matter in the case except for those matters raised by written motions filed prior to trial;
	(4) the fact that if the defendant is not a citizen of the United States of America, a
plea of guilty or nolo contendere for the offense charged may result in deportation, the
exclusion from admission to this country, or the denial of naturalization under federal law; 
and
	(5) the fact that the defendant will be required to meet the registration requirements
of Chapter 62, if the defendant is convicted of or placed on deferred adjudication for an
offense for which a person is subject to registration under that chapter.
	(b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless
it appears that the defendant is mentally competent and the plea is free and voluntary.
	(c) In admonishing the defendant as herein provided, substantial compliance by the
court is sufficient, unless the defendant affirmatively shows that he was not aware of the
consequences of his plea and that he was misled or harmed by the admonishment of the
court.
	(d) The court may make the admonitions required by this article either orally or in
writing. If the court makes the admonitions in writing, it must receive a statement signed
by the defendant and the defendant's attorney that he understands the admonitions and is
aware of the consequences of his plea. If the defendant is unable or refuses to sign the
statement, the court shall make the admonitions orally.
	(e) Before accepting a plea of guilty or a plea of nolo contendere, the court shall
inquire as to whether a victim impact statement has been returned to the attorney
representing the state and ask for a copy of the statement if one has been returned.
	(f) The court must substantially comply with Subsection (e) of this article.  The
failure of the court to comply with Subsection (e) of this article is not grounds for the
defendant to set aside the conviction, sentence, or plea.
	(g) Before accepting a plea of guilty or a plea of nolo contendere and on the request
of a victim of the offense, the court may assist the victim and the defendant in participating
in a victim-offender mediation program.
	(h) Before accepting a plea of guilty or nolo contendere from a defendant described
by Subsection (a)(5), the court shall ascertain whether the attorney representing the
defendant has advised the defendant regarding registration requirements under Chapter 62.
	(i) Notwithstanding this article, a court shall not order the state or any of its
prosecuting attorneys to participate in mediation, dispute resolution, arbitration, or other
similar procedures in relation to a criminal prosecution unless upon written consent of the
state.
6. The record is absolutely devoid of the qualifications of Mr. Renneberg to be a
translator.
7. No appellate issue is raised concerning this.  Had it been, an abatement for a
hearing would be appropriate.  See Morse v. State, 29 S.W.3d 640, 641-42. (Tex. App.--Beaumont 2000, no pet.).
