Roland Roman Cruz v. State

Opinion issued November 1, 2007

Opinion issued November 1, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01006-CR

ROLAND ROMAN CRUZ, Appellant

V.

THE STATE OF TEXAS,

Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1055802

MEMORANDUM OPINION

Appellant Roland Roman Cruz pleaded

guilty to the first-degree felony offense of aggravated robbery without an

agreed punishment recommendation from the State. See Tex. Pen. Code Ann . § 29.03 (Vernon

2003). The trial court assessed

punishment at ten years’ confinement, a $10,000 fine, and $4,000 in restitution. In two issues, Cruz contends that (1) his

guilty plea was involuntary, and (2) the trial court violated his right to

defense counsel of his choice. We

affirm.

Background

The record in this case does not

contain a reporter’s record. Cruz’s indictment

charges Cruz with “unlawfully, while in the course of committing theft of

property owned by JEFFREY NEWMAN and with intent to obtain and maintain control

of the property, intentionally, knowingly and recklessly caus[ing] serious

bodily injury to Jeffrey Newman, by STRIKING THE COMPLAINANT WITH THE

DEFENDANT’S HAND” and by “KICKING THE COMPLAINANT WITH THE DEFENDANT’S FOOT.”

Voluntariness of Plea

In his first issue, Cruz contends

that the record does not sufficiently demonstrate that he entered his guilty

plea voluntarily and intelligently as required by the Fourteenth Amendment of

the United States Constitution. See U.S. Const . amend. XIV, § 1.

“The waiver of the right to a plea of not guilty

is surrounded by procedural protections both constitutional and statutory.” Mendez v. State , 138 S.W.3d 334, 344 (Tex.

Crim. App. 2004). The constitutional

rights a defendant waives by pleading guilty are the privilege against

compulsory self-incrimination, the right to trial by jury, and the right to

confront one’s accusers. Boykin v. Alabama , 395 U.S.

238, 243 , 89 S. Ct. 1709 , 1712–13 (1969); Gardner v. State , 164 S.W.3d 393, 399 (Tex.

Crim. App. 2005). Due process

of law requires that “[w] aivers 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.” Brady v. United States , 397 U.S. 742, 748 , 90 S. Ct. 1463,

1469 (1970) ; Mendez , 138 S.W.3d at 344 . Trial courts must also ensure that a

defendant who pleads guilty “has a full understanding of what the plea connotes

and of its consequence.” Boykin , 395 U.S. at 243–44, 89 S. Ct. at

1712–13. Furthermore, the record must

affirmatively demonstrate that a defendant who pleaded guilty entered his plea

knowingly and voluntarily. Brady , 397 U.S. at 747 n.4, 90 S. Ct. at

1468 n.4; Boykin , 395 U.S.

at 242 , 89 S. Ct.

at 1712 ; Aguirre-Mata v. State , 125

S.W.3d 473 , 474–75 (Tex. Crim. App. 2003).

In assessing the voluntariness of a plea , we review the record as a whole

and consider the totality of the circumstances. Griffin v. State , 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Lee v. State , 39 S.W.3d 373, 375 (Tex. App.—Houston

[1st Dist.] 2001, no pet.); Edwards v. State , 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.) . A trial court may accept a guilty

plea only if the defendant enters it freely and voluntarily. Tex. Code Crim. Proc. Ann . art. 26.13(b) (Vernon

Supp. 2006) . A court’s

failure to make an adequate record showing that the defendant entered the guilty

plea voluntarily and intelligently requires reversal. Aguirre-Mata ,

125 S.W.3d at 475 .

An admonishment on punishment is prima facie

evidence that a plea was knowing and voluntary. Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim.

App. 1998); Lee , 39 S.W.3d

at 375 . The burden then shifts to the

defendant to show that he entered the plea without

understanding its consequences. See Tex. Code

Crim. Proc. Ann . art.

26.13(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.”) ;

Martinez , 981 S.W.2d at 197 ; Lee , 39 S.W.3d at 375 . “A

defendant’s attestation of voluntariness at the original plea hearing imposes a heavy burden on the defendant at a

later hearing to show a lack of voluntariness.” Dusenberry v. State , 915 S.W.2d 947, 949 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref’d); accord Edwards , 921 S.W.2d at 479 . There is also a

presumption of regularity of the judgment and the proceedings absent a showing

to the contrary, and the burden is on the defendant to overcome this

presumption. Light v. State ,

15 S.W.3d 104, 107 (Tex. Crim. App.

2000); Ex parte Wilson , 716 S.W.2d 953, 956 (Tex. Crim.

App. 1986); Lee ,

39 S.W.3d at 375 ; Dusenberry , 915

S.W.2d at 949 . If the defendant and trial counsel have signed written

admonishments, statements, or waivers, and the court has established that the

defendant has read and understood them, then the trial court need not orally

inquire about voluntariness of a plea. See Tex. Code Crim. Proc. Ann . art. 26.13(d) (“ 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.”) ;

Pena v. State , 132 S.W.3d 663, 668

(Tex. App.—Corpus Christi 2004, no pet.); Lee , 39 S.W.3d at 375 n.1; Edwards , 921 S.W.2d at 479 ; Gonzales v.

State , 899 S.W.2d

819, 821 (Tex. App.—Fort Worth 1995, pet. ref’d) ; Rodriguez v. State , 850 S.W.2d 603, 607

(Tex. App.—El Paso 1993, no pet.) .

Here, Cruz signed

admonishments recognizing that (1) he was charged with the felony offense of

aggravated robbery, (2) he faced the first-degree felony maximum punishment

range of life imprisonment and no less than five years in prison, (3) he was

mentally competent, (4) he understood the nature of the charge against him, (5)

he understood the admonishments, (6) he fully understood the consequences of

his plea ,

(7) he understood English, and (8) his plea was freely, knowingly, and

voluntarily made. Cruz further waived

his right to have the trial court admonish him orally, and his right to have a

court reporter record his plea. The

record thus contains prima facie evidence that Cruz entered his plea knowingly

and voluntarily. [1] See

Martinez , 981 S.W.2d at 197 ; Lee , 39 S.W.3d at 375 . Hence, the burden shifts to Cruz to show that he

did not understand the consequences of his guilty plea. See

Martinez , 981 S.W.2d at 197 ; Lee , 39 S.W.3d at 375 .

Cruz contends that his guilty plea was

involuntary because his motion for community supervision—filed the same day as

his guilty plea—indicates that he believed the State had charged him with

aggravated assault instead of aggravated robbery. In the motion for community supervision, Cruz

wrote “Aggravated Assault” in the space provided for a defendant to specify the

offense with which he is charged.

A grand jury indicted Cruz for

aggravated robbery on February 28, 2006, almost five months before his guilty

plea. The record contains six agreed

settings, signed by Cruz and his counsel, that all indicate that Cruz was

charged with aggravated robbery. The

admonishments form and judicial confession that Cruz signed both indicate that the

State had charged Cruz with aggravated robbery. The admonishments form includes a paragraph

that states that aggravated robbery is a first-degree felony punishable by “a

term of life or any term of not more than 99 years or less than 5 years in the

Institutional Division of the Texas Department of Criminal Justice, and, in addition,

a fine not to exceed $10,000.00 may be assessed . . . .” The admonishments

form instructed Cruz to initial each item if he fully understood it; Cruz

initialed the paragraph explaining the punishment range for a first-degree

felony. Cruz also initialed the

paragraphs stating that he fully understood both the nature of the charge

against him and the consequences of his plea , and that he was pleading guilty

freely and voluntarily. The record

therefore demonstrates that the trial court fully admonished Cruz as to the

consequences of

his guilty plea to aggravated

robbery . The fact that Cruz asked

the court to consider community supervision noting that he was charged with aggravated

assault does not indicate that Cruz did not understand the consequences of his

guilty plea when he executed his plea documents, which set forth the charge of

aggravated robbery. As such, Cruz has failed to

demonstrate that his plea was involuntary. See State

v. Jimenez , 987 S.W.2d 886, 888 (Tex. Crim. App. 1999)

(“Generally, a guilty plea is considered voluntary if the defendant was made

fully aware of the direct consequences.”); Garcia v. State , 877 S.W.2d 809, 812 (Tex. App.—Corpus

Christi 1994, pet. ref’d) .

Cruz also contends that his plea was involuntary

because the admonishments form and guilty plea contain errors that make them

misleading. Specifically, Cruz asserts

that (1) the admonishments form cites a nonexistent provision of the Texas Code

of Criminal Procedure, (2) the admonishments form mentions community

supervision even though Cruz was not eligible for community supervision, and

(3) the admonishments form and guilty plea refer to a plea bargain that did not

exist because Cruz pleaded guilty without an agreed recommendation.

First, while the admonishments form incorrectly

cites to article 42.12, section “3d(a)” of the Texas Code of Criminal Procedure

as the statute that allows a court to grant deferred adjudication, Cruz fails

to demonstrate how he was misled by this citation error, since the

admonishments state the law of deferred adjudication correctly. See

Tex. Code Crim. Proc. Ann. art.

42.12, § 5 (Vernon 2006). Second, the

admonishment initialed by Cruz acknowledges that he understands that the Court

may place him on deferred adjudication, which is a form of community

supervision Cruz could receive for aggravated robbery. Third, Cruz has failed to demonstrate that

the reference to a plea bargain in the plea documents, stated conditionally,

caused him to misunderstand the consequences of his plea. See

Brown v. State , 943 S.W.2d 35, 42 (Tex.

Crim. App. 1997) (“We have held that misinformation concerning a matter, such

as probation, about which a defendant is not constitutionally or statutory [sic]

entitled to be informed, may render a guilty plea involuntary if the defendant

shows that his guilty plea was actually induced by the misinformation.”).

Article 26.13(c) of the Texas Code of Criminal

Procedure expressly provides that “ [i]n 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.” Tex.

Code Crim. Proc. Ann . art. 26.13(c).

Cruz

has produced no evidence affirmatively demonstrating how the alleged

discrepancies in his plea documents caused him to misunderstand the

consequences of his plea. See Tex. Code

Crim. Proc. Ann . art.

26.13(c); Jimenez , 987 S.W.2d

at 888 ; Martinez , 981

S.W.2d at 197 ; Brown , 943 S.W.2d at 42 ; Ramirez v. State , 89 S.W.3d 222, 229 (Tex.

App.—Corpus Christi 2002, no pet.); Lee , 39 S.W.3d

at 375 . Cruz has therefore failed to

demonstrate that any errors in the plea documents rendered his plea

involuntary. See Aguirre-Mata , 125 S.W.3d at 476–77 (holding

that error in admonishments regarding correct punishment range did not render

guilty plea involuntary); Brown , 943 S.W.2d at 42 (holding that defendant failed to

demonstrate that trial court’s failure to admonish him on law of deferred

adjudication affected his guilty plea) . Accordingly, we hold that Cruz has not met his

burden of overcoming the presumption of regularity of the judgment and

proceedings and has failed to demonstrate that his plea was involuntary. See Jimenez , 987 S.W.2d at 888 ; Brown , 943 S.W.2d at

42 ; Lee , 39 S.W.3d at 375–76 ; Dusenberry , 915 S.W.2d at

949 .

Choice of Counsel

In his second issue, Cruz contends that the trial court violated his right to

his choice of defense counsel. The trial

court initially appointed Jim Barr to represent Cruz in this case. Barr appeared on behalf of Cruz on one

occasion and signed an agreed setting.

After the grand jury indicted Cruz for aggravated robbery, an attorney

named J.W. Dedrick appeared on Cruz’s behalf.

Three months later, Cruz posted bond and the trial court ordered Cruz to

hire an attorney by the next court setting.

Dedrick continued to represent Cruz and acted as Cruz’s attorney when he

pleaded guilty. The record does not

contain a motion to substitute counsel, a motion to withdraw as counsel, an

order allowing Barr to withdraw, or an order appointing Dedrick as Cruz’s

counsel. The record contains no

explanation of how or why Dedrick came to represent Cruz.

The United States Supreme Court has

held that “the right of a defendant who does not require appointed counsel to

choose who represents him” is an element of the Sixth Amendment right to

counsel in criminal prosecutions. United

States v. Gonzalez-Lopez , --- U.S.

----, 126 S.Ct. 2557 , 165 L.Ed.2d 409 (2006 ). “Where the right to be assisted by counsel of

one’s choice is wrongly denied . . . it is unnecessary to conduct an

ineffectiveness or prejudice inquiry to establish a Sixth Amendment

violation.” Id.

at 2563 . The erroneous deprivation of

the right to counsel of choice is a structural error, meaning it defies

analysis by harmless-error standards. Id. at 2564. Furthermore, once a

court appoints an attorney to represent a defendant and an attorney-client

relationship is formed, this relationship is no less inviolate than if counsel

had been retained. Buntion v. Harmon , 827 S.W.2d 945, 949 (Tex. Crim. App. 1992)

(orig. proceeding); Stearnes v. Clinton ,

780 S.W.2d 216 , 221–22 (Tex. Crim. App. 1989) (orig. proceeding). The trial court must have some principled

reason to justify the replacement of appointed counsel. Buntion ,

827 S.W.2d at 949 .

Appellate courts, however, “must

indulge every presumption in

favor of the regularity of the proceedings and documents” in the trial

court. McCloud v. State , 527 S.W.2d 885, 887 (Tex. Crim.

App. 1975); see also Wilson , 716 S.W.2d at 956 ; Disheroon v. State , 687 S.W.2d 332, 334 (Tex. Crim. App. 1985); Murphy

v. State , 95 S.W.3d 317, 320 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref’d); Christian v. State , 865 S.W.2d

198, 202 (Tex. App.—Dallas 1993, pet. ref’d); but see

Goffney v. State ,

843 S.W.2d 583, 585 (Tex. Crim. App. 1992) (refusing to apply presumption of

regularity to waiver of right to counsel recited in judgment). The presumption of regularity is a judicial

construct that requires a reviewing court, “absent evidence of impropriety,” to indulge every presumption in favor

of the regularity of the trial court’s judgment. Light , 15 S.W.3d at 107 . “ The burden is on the appellant to overcome the presumption

of regularity of the judgment and the proceedings.” Lee , 39 S.W.3d at 375 ; accord Dusenberry , 915 S.W.2d at 949 .

The record in this case contains no indication

that the trial court interfered with Barr’s representation of Cruz, or that the

trial court replaced Barr with Dedrick as Cruz’s appointed counsel over Cruz’s

objection or for an improper reason. Cruz has

therefore failed to overcome the presumption of regularity in the trial court’s

proceedings. See Lee , 39

S.W.3d at 375 ; Dusenberry , 915 S.W.2d

at 949 . We cannot conclude

that the trial court deprived Cruz of his Sixth Amendment right to defense

counsel of his choice because the record contains no evidence that the trial

court replaced Barr with Dedrick without a principled reason to justify the

replacement. See Light , 15 S.W.3d at 107 ; Wilson ,

716 S.W.2d at 956 ; Murphy , 95 S.W.3d at 320 ; Lee , 39 S.W.3d at 375 ; see

also Gonzalez-Lopez , 126 S. Ct. at 2561 ; Buntion , 827 S.W.2d at 949 ; Stearnes , 780 S.W.2d at 221–22.

Conclusion

We

hold that (1) Cruz has failed to demonstrate that his guilty plea was

involuntary, and (2) that the record contains no evidence that the trial court

violated Cruz’s right to defense counsel of his choice. We therefore affirm the judgment of the trial

court.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Alcala and Bland.

Do not publish. See

Tex. R. App. P. 47.2( b ).

[1] T he trial court established

that Cruz read and understood the written admonishments and waivers that he

signed. See Edwards v. State , 921 S.W.2d 477, 479 (Tex.

App.—Houston [1st Dist.] 1996, no pet.) ; Gonzales v. State , 899 S.W.2d 819, 821 (Tex.

App.—Fort Worth 1995, pet. ref’d) . The court also made the following written statement

on Cruz’s guilty plea:

This document was executed by the

defendant, his attorney, and the attorney representing the State, and then

filed with the papers of the case. The

defendant then came before me and I approved the above and the defendant

entered a plea of guilty. After I

admonished the defendant of the consequences of his plea, I ascertained that he

entered it knowingly and voluntarily after discussing the case with his

attorney. It appears that the defendant

is mentally competent and the plea is free and voluntary. I find that the defendant’s attorney is

competent and has effectively represented the defendant in this case. I informed the defendant that I would not

exceed the agreed recommendation as to punishment.