## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00549 - CR

MARCO ANTONIO PEREZ APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRI CT COURT NO. 4 OF TA RRANT COUNTY TRIAL COURT NO. 1274 561D

---------- 

### MEMORAN DUM OPINION 1

---------- Appellant Marco Antonio Perez appeals his plea

- bargained conviction for evading arrest. In three related issues, he argues that his trial counsel was ineffective and that his guilty plea was involuntary. We affirm.

1 See Tex. R. App. P. 47.4. This case was originally submitted on October 31 , 2013. On July 10, 2014, the court, on its own motion, ordered the appeal to be resubmitted on August 1, 2014; assigned the appeal to a new panel; and assigned the unde rsigned to author the opinion.2 Background Fac ts In the spring of 2012, a grand jury indicted appellant with evading arrest while using a vehicle , a third

- degree felony

. 2 The indictment contained a repeat

offender notice alleging that appellant had been previously convicted of a drug

related felony. Appellant retained counsel. In May 2012, t he State offered a plea bargain for five years’ confinement. On September 6, 2012, counsel filed a motion to withdraw, alleging that she had been retained to represent appellant “up to a plea,” that he had fail ed to hire her for a trial, and that he had failed to
communicate with her

. The same day, pursuant to a plea bargain agreement for four years’ confinement, appellant waived constitutional and statutory rights, judiciall y confessed, and pled guilty

. The t rial court convicted him that day

. Two weeks later, the parties attended a sentencing hearing. At the beginning of the hearing, the trial court found the repeat offender notice to be
true 3 and sentenced appellant to four years’ confinement. Appellant, t hrough counsel, then attempted to withdraw his guilty plea. He testified that he had entered the plea without understanding it, while he was “under pressure,” an d through limited consultation with his counsel. He admitted, however, that he had

2 See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (West Supp. 2014 ) ; Adetomiwa v. State , 421 S.W.3d 922, 927 (Tex. App.

— Fort Worth 2014, no pet.)

. 3 Thus, appellant’s punishment range was two to twenty years’ confinement. See Tex. Penal Code Ann. § 12.33(a) (West 2011) , § § 12. 42 (a), 38.04(b)(2)(A) (West Supp. 2014 )

.3 “spent a l ot of time out in the hallway” with his counsel . The following colloquy then occurred between appellant , counsel , and the trial court : [DEFENSE COUNSEL:] Okay. Marco, actually I gave you some choices that if you wanted to proceed to trial, then I neede d trial fees for us to continue on and I would be glad to represent you all the way through trial. Did I not tell you that? [APPELLANT:] Yes. Yes. Q.

. . . And I also told you that if you took this plea, the District Attorney was willing to give you four years on that date if you took it that date, correct? A. Yeah.

. . .

. . . . Q.

. . . I never tell you what you should do. I never tell any of my clients what [they] should do. What I did in this case back two weeks ago was on your cue, see if I can get you three [years’ confinement]

. Do you remember that? A. Yes. Q. Okay. But I couldn ’ t. But I did come back with the offer of four if you took it that day. Do you remember that? A. If we took it that day. Q. Right. And so because you also were caught off guard a little bit and needing to get your affairs together, you asked if you could have time before you accepted it in order to do what you needed to do, correct? Do you remember all that? A. Yes. Yes.

. . . . Q. Okay. So, basi cally, you were forced into a position to decide to fight your case towards trial or to take this plea bargain of four years , which was reduced one from your original offer, but you had to take it and take the first half of your plea knowing that you4 could come back in two weeks and finalize your sentencing and turn yourself in. Isn ’ t that what happened? A. Yes, that ’ s what happened. Q. Okay. You have had second thoughts since then, correct ? A. Well, immediately, actually. I knew I wasn ’ t

-- you kn ow, I was railroaded, you know. Q. No, you ’ re not being railroaded. You made those decisions freely and voluntarily and you sat here and told this judge that, correct, at the time he took your plea? A. Well, the thing is, I signed the paper and next t hing I know I ’ m getting pled guilty. I wasn ’ t understanding what was going on. Q. Well, I read everything on your paperwork, your plea paperwork to you, did I not? A. Yes. Yes. Q. I went over it completely with you in the hall; is that right? A. Yes.

. . . . Q. Did I present the alternative to go ahead and go to trial and pay me to go to trial? Did I give you that alternative? A. Yes. And I told you it would be no problem . . . . But you wanted it right then and there and we weren ’ t going to trial right then and there. Q. No. I told you, you had to sign an agreement right then and there and put something down towards trial? A. Signing an agreement and put something down towards trial, that ’ s what I wanted to do. Q. And you chose not to do that and you signed your paperwork for the four years ; is that correct?5 A. You also told me that you did not want to try my case. If you didn ’ t want to do

-- you know, carry my case, you just would have just said so. Q. Marco, I am a trial lawye r. I get paid all the time to go to

-- A. I know. Q.

. . . I have always explained to you I ’ m capable of going

-- A. Yes, ma’ am. Q.

-- as far as you would like me to go. But just like anyone else, we got to be paid to do our work, correct? A. Ye s. Q. That’ s not a question in your mind, is it? A. Yes. I understand that. But, you know, if you weren ’ t paid right then and there, I get

-- I have to plea bargain to do something else and which I told you I would take care of you. I would. All I needed to do is just go to the bank and go to your office

. . . . Q. We were on motions docket and this was my last chance to easily get off of the case for lack of trial fees, okay. And so I told you that we needed to make a direction, I told you this when you first came into my office when you first hired me how things worked, didn ’ t I? A. Yes, you did. Q. Okay. But you ’ ve just changed your mind, you didn ’ t like your decision that day, and you ’ re asking this Court to please reconsider, undo your pl ea and give you a chance to have your constitutional right to fight your case in trial? Isn ’ t that what it really boils down to? A. Yes, yes, just so I can

-- it ’ s equal opportunity to

-- that way I can

-- I feel better that I at least

-- Q. This is no t really about me, is it? A. No. It ’ s just that way I can

. . . fight

. . . just to get equal opportunity

. . . .6 . . . . THE COURT: Well, I found that day that it was a free and voluntary plea. I find that still today

. . . . [Emphasis added.] App ellant filed an unavailing motion for new trial and brought this appeal with the trial court’s permission

. The Alleged Ineffective Assistance of Counsel and the Voluntariness of Appellant’s Guilty Plea In his first two issues, appellant contends that he r eceived ineffective assistance of counsel under federal and state law because counsel allegedly forced him to either pay her or accept a plea bargain for four years’ confinement. In his third issue, he contends that the trial court should have allowed him to withdraw his guilty plea because it was not voluntary. Appellant does not provide separate arguments for his state and federal ineffective assistance claims

. Also, appellant premises his ineffective assistance claim s on the alleged involuntariness of his guilty plea. Thus, we will combine our analysis of appellant’s three issue s. To establish ineffective assistance of counsel, appellant must show by a preponderance o f the evidence that his counsel’ s representation fell below the standard of prevailin g professional norms and that there is a reasonable
pr obability that but for counsel’ s deficiency, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Davis v. State , 278 S.W.3 d 346, 352 (Tex. Crim. App. 2009). In other words, for a claim of ineffective assistance of counsel to succeed, the7 record must demonstrate both deficient performance by counsel and prejudice suffered by the defendant. Menefield v. State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) ; see Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[A]n appellant ’ s failure to satisfy one prong of the Strickland test negates a
court ’ s need to consider the other prong. ”) , cert. denied , 537 U.S. 1195 (2003)

. T he record must affirmatively demonstrate the meritorious nature of an ineffective assistance claim. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A defendant is entitled to effective assistance of counsel when entering a guilty plea. Hill v. Lockhart , 474 U.S. 52, 58

– 59, 106 S. Ct. 366, 370

– 71 (1985); Ex parte Harrington , 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). No guilty plea
may be accepted by a trial court unless it appears that “ the plea is free and voluntary.” T ex

. C ode C rim . P ro c . A nn . art. 26.13(b) (West Supp. 2014 )

. “ A defendant ’ s plea is not voluntary when it results from ineffective assistance of
counsel. The test for determining the validity of a plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. ” Ex parte Karlson , 282 S.W.3d 118, 129 (Tex. App.

— Fort Worth 2009, pet. ref’ d) (citation omitted) ; see Ex p arte Moussazadeh , 361 S.W.3d 684, 689 (Tex. Crim. App. 2012)

. When an appellant challenges the voluntariness of a plea, contending that
trial counsel was ineffective, the appellant must prove that (1) counsel’ s advice

was not within the range of competence demanded of attorneys in criminal8 cases , and (2) there is a reasonable pr obability that but f or counsel’ s errors, the appellant would not have ple d guilty and would have insisted on going to trial. 4 Ex parte Moody , 991 S.W.2d 856, 857

– 58 (Tex. Crim. App. 1999); see E x parte Niswanger , 335 S.W.3d 611, 615 (Tex. Crim. App. 2011) ; Ex parte Owenga , N o. 02

- 13

- 00038

- CR, 2014 WL 3028914 , at *2 (Tex. A pp. — Fort Worth July 3, 2014,

no pet.) (mem. op., not designated for publication) (“ To meet his burden under the second prong, the [appellant] must convince the court that a decision to reject the plea bargai n would have been rational under the circumstances . . . .”). In determining whether a defendant would have pled guilty but for counsel ’ s deficient advice, a court is to consider the circumstances surrounding the plea and the gravity of the alleged failur e material to that determination. Ex parte
Moreno , 382 S.W.3d 523, 528 (Tex. App.

— Fort Worth 2012, pet. ref ’ d)

. At the sentencing hearing, appellant initially testified that he did not understand what was happening when he entered his plea and that he ha d spoken only “a few words” to counsel before the plea. B ut when pressed by counsel, he admitted that he had spent significant time discussing the details of
the plea with counsel before he entered it and that counsel had read all of his plea paperwork to him

. 5 He also conceded that he had initiated the strategy of

4 The law does not require appellant to prove that he would have received a more favorable disposition by proceeding to t rial. Johnson v. State , 169 S.W.3d 223, 231 (Tex. Crim. App. 2005) , cert. denied , 546 U.S. 1181 (2006)

. 5 The paperwork informed appellant of his right to a jury trial , confirmed that he was “aware of the consequences of [his] plea,” and expressed that the plea9 attempting to secure a plea bargain for three years’ confinement after the State had initially offered a plea bargain for five years’ confinement. W hen trial counsel asked whether seeking a pl ea bargain for three years’ confinement was “on [appellant’s] cue,” appellant responded affirmatively. Appellant also testified that counsel answered every question he had asked about his plea. Accordingly, after witnessing appellant’s demeanor and evalu ating his statements, the trial court found on the day of the plea and two weeks later at the sentencing hearing
that the plea was “free and voluntary.” Appellant contends that his trial counsel “filed a motion to withdraw . . . for failure to pay trial f ees and informed [ him ] that he must accept a plea deal or give a down payment on trial.” 6 He also asserts that “[b]ut for being in such a position, [he] would have pleaded not guilty a n d proceeded to a jury trial.” But even if we were to assume that coun sel was incompetent by attempting to withdraw because she had not been paid for trial, appellant did not was “knowingly, freely, and voluntarily entered.” The paperwork also expressed appellant’s satisfaction with the representation he had received from counsel , stating that she had been “fully effective and competent.” This paperwork provides additio nal evidence that counsel was effective and that appellant’s plea was voluntary. See Thomas v. State , No s . 02

- 09

- 00364

- CR , 02

- 09

- 00365

- CR, 02

- 09

- 00366

- CR , 2010 WL 4028092, at *1 n.3 (Tex. App.

— Fort Worth Oct. 14, 2010, no pet.) (mem. op., not designated f or publication) (considering a defendant’s written plea admonishments in determining that nothing in the record supported a claim of ineffective assistance leading to an involuntary plea); see also Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 19 98) (stating that when assessing the voluntariness of a plea, courts examine the entire record).

6 At one point in his testimony, however, appellant said that counsel had told him that she did not want to take the case to trial.10 prove by a preponderance of the evidence that this alleged error was the cause of his acceptance of the plea bargain or that he would have otherwise in sisted on going to trial. See Moody , 991 S.W.2d at 857

– 58. Instead, the record shows that the impetus behind appellant’s acceptance of the plea bargain is that he offered to enter a plea bargain for three years’ confinement and the State counteroffered a term of four years only if appellant accepted the offer that day. Appellant testified that he was put “under pressure” and caught off guard by the State’s counteroffer but that he accept ed it under the condition that he could have two weeks before senten cing to tend to personal matters. 7 W hen counsel asked whether appellant had been put to a choice of taking his case to trial or accepting the plea bargain for four years’ confinement, appellant responded, “Yes, that’s what happened.” Appellant conceded t hat counsel gave him the option to refuse the State’s counteroffer and go to trial; counsel represented that appellant refused that option. Appellant’s initiation of negotiations with the State for a plea bargain on the day of his plea and his acceptance of a plea bargain in which both sides gave up one year from their original offers undermines his

7 The pressure produced by th e short

- term availability of the State’s counteroffer, by itself, did not make appellant’s plea involuntary. See Villalovos v. State , No. 11

- 00

- 00193

- CR, 2001 WL 34373439, at *1

– 2 (Tex. App.

— Eastland Mar. 29, 2001, pet. ref ’ d) (not designated for publica tion) (holding that a defendant’s guilty plea was not involuntary merely because it was made in acceptance of a plea bargain offer that the State had threatened to withdraw after a short period of time) ; see also Gaither v. State , 479 S.W.2d 50, 51 (Tex. C rim. App. 1972) ( acknowledging that “[a]ll pleas of guilty are the result of some pressures or influences on the mind of the defendant”).11 position at trial and on appeal that he did not want to “plea out” and that he would have proceeded to trial absent counsel’s attempt to withdraw.
Next , appel lant admitted that he disliked the decision that he had made on the day of his plea, that he had since changed his mind, and that his request to withdraw his plea was not “really about” counsel’s representation but was instead borne from a desire to “get s omething better” by “plead[ing] . . . out.” And when appellant explained why he wanted to withdraw his guilty plea, he did not primarily urge his innocence for evading arrest but spoke more about mitigating attributes such as owning a busi ness and support ing his family. Under these facts, we cannot conclude that appellant has met his burden
to show by a preponderance of the evidence that any deficiency in counsel’s representation caused him to accept the plea bargain or that he would have insisted on goin g to trial if not for counsel’s threat to withdraw. While some of appellant’s testimony may suggest his belief on the day of his plea that he needed to accept the plea bargain or pay counsel for trial , the trial court had the discretion to reject this tes timony

. See Galan v. State , 308 S.W.3d 414, 416 (Tex. App.

— Amarillo 2010, no pet.) ; Hayden v. State , 818 S.W.2d 194, 197 (Tex. App.

— Corpus Christi 1991, no pet.)

. One reason that the court may have done
so is that counsel’s motion to withdraw stated, “Th is withdrawal is not sought for delay . . . but that [appellant] might be represented by counsel of his choice .” [Emphasis added.] Also , other parts of appellant’s testimony were inconsistent

. For example, he first testified that he had not significantl y discussed his plea with12 counsel but later admitted that she had explained the paperwork and had answered all of his questions, and he testified that he had not desired to “plea out” but conceded that he had urged counsel to seek a plea bargain.
F or all of the reasons stated above, considering the entire record, including the trial court’s findings before and after appellant attempted to withdraw his plea
that he entered the plea freely and voluntarily, we hold that he has not
established that his counsel was ineffective or that his plea w a s involuntary and that the trial court did not abuse its discretion by rejecting his attempt to withdraw the plea

. See Moody , 991 S.W.2d at 857

– 58 ; Jackson v. State , 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979 )

. We overrule all three of appellant’s
issues. Conclusion Having overruled appellant’s issues, we affirm the trial court’s judgment.
/s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: October 9, 2014