RONALD OSWALDO ESPEJO v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

RONALD OSWALDO ESPEJO, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00684–CR

Decided: November 16, 2011

Before Justices Moseley, Lang, and Myers

MEMORANDUM OPINION

Opinion By Justice Moseley

Pursuant to a negotiated plea agreement, appellant Ronald Oswaldo Espejo pleaded no contest 1 to charges of aggravated assault with a deadly weapon causing serious bodily injury to the person he was dating.   The trial court accepted his plea and sent the case to the magistrate court to be “finalized.”   Espejo later sought to withdraw his plea, stating he was a citizen of the Republic of Bolivia and might be deported because of his plea.2  In this appeal, Espejo claims:  (1) he had an automatic right to withdraw his plea because the plea had not been taken under advisement by the trial court, (2) his trial counsel did not unequivocally advised him he would be deported if he pleaded no contest, and (3) he received ineffective assistance of counsel, rendering the plea involuntary.   Following two hearings on the motion, the trial court entered findings of fact and conclusions of law, denied the motion, and certified Espejo's right to appeal.

The background and facts of the case are well-known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4. We affirm the trial court's judgment.

In his first issue, Espejo contends the trial court erred in refusing to allow him to withdraw his plea because he had an absolute right to do so.   Texas follows a liberal practice concerning the withdrawal of a guilty plea.   See McWherter v. State, 571 S.W.2d 312, 313 (Tex.Crim.App. [Panel Op.] 1978).   In the context of a non-jury trial, a defendant has an absolute right to withdraw a plea until the trial court takes the plea under advisement;  thereafter the right to withdraw a plea is subject to the discretion of the trial court.   See Thompson v. State, 852 S.W.2d 268, 269–70 (Tex.App.—Dallas 1993, no pet.).

At Espejo's plea hearing on May 11, 2009, the court discussed the charge and the range of punishment, which Espejo indicated he understood.   Espejo affirmed that he had gone over the documents and plea papers and acknowledged that he understood his rights and the waiver of those rights under the plea agreement.   The plea papers included the following statement:  “[i]f you are not a citizen of the United States, a plea of guilty or nolo contendere may, and under current Federal Immigration rules is almost certain to, result in your deportation, removal, exclusion from admission to the United States, or denial of naturalization.” (emphasis original).   After acknowledging he understood the waiver of his rights, Espejo entered a “no contest” plea and the state offered Espejo's signed, voluntary judicial confession and stipulation of evidence.   The court accepted Espejo's plea and admitted the plea documents into evidence.   The case was passed for a pre-sentence investigation 3 and the parties agreed that Espejo would finalize the plea at the magistrate court on June 4, 2009.4

In Jackson v. State, the defendant decided to plead guilty after a jury had been impaneled and sworn.  590 S.W.2d 514, 514 (Tex.Crim.App.1979).   The defendant was admonished in accordance with the code of criminal procedure, he waived his right to a trial by jury, and after certain stipulations were entered into and offered into evidence, the court accepted the defendant's guilty plea and passed the case for a pre-sentence investigation.   However, when the case was called again for purposes of assessing punishment, the defendant declared that he wished to withdraw his guilty plea.   See id.   The court of criminal appeals held that the defendant's request “came long after the matter had been taken under advisement by the trial court.”  Id at 515.   See also Milligan v. State, 324 S.W.3d 864, 865 (Tex.Crim.App.1959) (request to withdraw plea came after case was under advisement;  parties had closed their case and completed their arguments and the court had concluded defendant was guilty and was in process of pronouncing judgment).

Pursuant to Jackson and Milligan, we conclude the trial court took the case under advisement when, on May 11, 2009, it accepted the plea and deferred “finaliz[ing]” the case.   Thus, Espejo's April 2010 motion to withdraw his plea was subject to the trial court's discretion.   See Jackson, 590 S.W.2d at 515.   We reject Espejo's argument that the case had not been taken under advisement because he had not been properly admonished as to the risks of deportation.   Accordingly, we overrule Espejo's first issue.

In his second issue, Espejo claims the trial court erred in finding that his previous counsel, Nancy Ohan, unequivocally advised him that he would be deported if he pleaded no contest.   The trial court heard Ohan's testimony that she “told Mr. Espejo, point blank, that he was going to get deported.   Point blank.”   As the trier of fact, the trial court acted within its discretion when it entered a finding of fact that Ohan “advised [Espejo] he would be deported” if he pleaded no contest.   See Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010).   The trial court was not required to accept Espejo's affidavit and ignore Ohan's testimony.   See id.   We overrule Espejo's second issue.

Finally, in his third issue, Espejo claims the trial court “erred in concluding that [Espejo's] Sixth Amendment right to be effectively counseled about the risk of deportation was satisfied by combining statements by trial counsel with warnings in the written plea agreement.”   Based on our review of Espejo's brief, we understand his third issue to be a complaint that the trial court abused its discretion when it denied his motion to withdraw his plea because he received ineffective assistance of counsel about the risk of deportation, rendering his plea involuntarily.

To successfully challenge the voluntariness of his plea on the grounds that he received ineffective assistance of counsel, Espejo must prove by a preponderance of the evidence:  (1) deficient performance and (2) prejudice.   Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005) (discussing Strickland v. Washington, 466 U.S. 668, 687 (1984)).   A claim of ineffective assistance of counsel must be “firmly founded in the record” and “the record must affirmatively demonstrate” the claim is meritorious nature.   See id.

The trial court's findings are clear:  Ohan “advised [Espejo] he would be deported” if he pleaded no contest and Ohan's advice “plus recitation in plea papers regarding possibility of deportation, leads court to conclude that [Espejo] was properly advised as to consequences of plea in regard to deportation or its possibility.”   Ohan's advice to her client that he would be deported was within the range of competence demanded of attorneys in criminal cases.   See Padilla v. Kentucky, 559 U.S.

, 130 S.Ct. 1473, 1486 (2010).   Unable to show Ohan's performance was deficient, Espejo has not satisfied the first prong of the Strickland test.   See, e.g., Strickland, 466 U.S. at 687.   Because Espejo did not meet his burden to show that he suffered ineffective assistance of counsel, the trial court did not abuse its discretion when it did not allow him to withdraw his plea on that basis.   We overrule Espejo's third issue.

We affirm the trial court's judgment.

FOOTNOTES

FN1. Although the parties in their briefs state Espejo pleaded no contest, the signed plea papers show Espejo pleaded guilty to the charged offense.   However, the transcript from the plea hearing and the Order of Deferred Adjudication also note the plea was nolo contendere.   Whether Espejo pleaded guilty or no contest is not material to our analysis.   For purposes of this opinion, we will assume Espejo pleaded no contest..  FN1. Although the parties in their briefs state Espejo pleaded no contest, the signed plea papers show Espejo pleaded guilty to the charged offense.   However, the transcript from the plea hearing and the Order of Deferred Adjudication also note the plea was nolo contendere.   Whether Espejo pleaded guilty or no contest is not material to our analysis.   For purposes of this opinion, we will assume Espejo pleaded no contest.

FN2. Espejo's motion says that he is a citizen of Peru;  his counsel later stated that Espejo is a citizen of Bolivia..  FN2. Espejo's motion says that he is a citizen of Peru;  his counsel later stated that Espejo is a citizen of Bolivia.

FN3. The transcript from the plea hearing does not reflect Espejo agreeing to submit to a pre-sentence report;  however, the parties' briefs state there was an agreement..  FN3. The transcript from the plea hearing does not reflect Espejo agreeing to submit to a pre-sentence report;  however, the parties' briefs state there was an agreement.

FN4. Espejo did not reappear on June 9, 2009, as scheduled.   He appeared before the court on April 22, 2010, when his new counsel moved to withdraw the plea..  FN4. Espejo did not reappear on June 9, 2009, as scheduled.   He appeared before the court on April 22, 2010, when his new counsel moved to withdraw the plea.

JIM MOSELEY JUSTICE

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