Abbott v. State

611 S.W.3d 144

Mirna Salas ABBOTT, Appellant

v.The STATE of Texas, Appellee

NO. 14-18-00685-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed October 8, 2020

Discretionary Review Refused February 10, 2021

Donald B. Edwards, Austin, Paul A. Finley, New Braunfels, for Appellant.

Jacqueline Doyer, Sammy M. McCrary, Joshua Presley, New Braunfels, Stacey M. Soule, Austin, for Appellee.

Panel consists of Chief Justice Frost and Justices Wise and Hassan.

Kem Thompson Frost, Chief Justice

Appellant Mirna Salas Abbott appeals her conviction for possession with intent to deliver a controlled substance in an amount of four grams or more but less than 200 grams. Though appellant pleaded "guilty" to the charged offense, on appeal she complains that her trial counsel rendered ineffective assistance in (1) negotiating and advising appellant to sign a plea agreement in which she waived various rights but gained nothing and (2) apprising the State of a "fatal variance" in the original indictment before appellant pled "guilty." She also asserts the trial court violated her due-process rights at the plea hearing by (1) failing to inquire whether appellant was satisfied by her trial counsel's representation and whether she wanted to represent herself and (2) physically altering the original indictment to effect an amendment. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2017, appellant was charged by indictment with the offense of knowingly possessing with intent to deliver a controlled substance having an aggregate weight, including any adulterants or dilutants, of four grams or more but less than 200 grams. The original indictment identified that controlled substance as "[m]ethamphetamine." The indictment also contained an enhancement paragraph alleging a previous felony conviction. Appellant later pleaded "guilty."

The Plea Papers

Appellant signed and initialed each page of the plea papers entitled "Admonishments, Voluntary Statements, Waivers, Stipulations, Judicial Confession & Plea Bargain Agreement" (the "Plea Papers"). In the admonishment section of the Plea Papers a checked box indicates appellant's acknowledgment of the punishment range for a first-degree felony for a repeat offender—imprisonment for life or a term of not more than 99 years or less than 15 years, plus a fine not to exceed $10,000. Another admonishment warns that appellant, who indicated elsewhere in the Plea Papers that she was not a United States citizen, could be subject upon conviction to deportation, refusal of re-admission, and denial of citizenship.

In a section entitled "Voluntary Statements," the Plea Papers contain statements by appellant that she understands the minimum and maximum punishment provided by law for this offense and that she is freely, knowingly, and voluntarily waiving her right to a jury trial. In a section entitled "Waivers," appellant states that she waives (1) her right to a jury trial, (2) her rights to remain silent and to confront or cross-examine witnesses against her during the guilt/innocence phase of trial, (3) her right to file a motion for new trial as to guilt or innocence, and (4) her right to appeal the trial court's judgment as to guilt or innocence (the "Waiver of Appeal"). In a section of the Plea Papers entitled "Stipulations and Judicial Confession," appellant judicially confesses that she committed each element of the charged offense, and states that she voluntarily enters a plea of guilty. Appellant also states that she has read the Plea Papers and has discussed them fully with her attorney. Appellant states that she understands the Plea Papers, is "aware of the consequence[s] of her plea, and is satisfied that she has been effectively represented."

In the Plea Papers appellant agrees (1) to plead "guilty" to the offense of possession with intent to deliver a controlled substance having an aggregate weight of four grams or more but less than 200 grams, (2) not to ask for deferred adjudication, and (3) to plead "true" to the enhancement paragraph in the indictment. A handwritten notation in the Plea Papers recites that "This is an open plea of guilty and true to the enhancement paragraph."

In the part of the Plea Papers in which the State could have given consideration by recommending a sentence or agreeing to prosecute appellant only on a lesser-included offense, the State did not check any of the first eleven items available in the form; instead, the State checked "[o]ther" and inserted the following text in the blank lines:

This is an open plea of guilty and true to the enhancement paragraph. [Appellant] shall not ask for and shall not receive a deferred adjudication. Therefore, [appellant] shall be sentenced to a term not less than 15 years and not more than 99 years or life and a fine not to exceed $10,000.

The inserted language contains no reference to any consideration given by the State. Below this language appears the statement, "The above terms constitute our agreement, and there are no agreements not set forth above. "¹ (the "End-of-Agreement Sentence"). Significantly, the wording on which the State relies as consideration for the Waiver of Appeal falls below the End-of-Agreement Sentence and above the signature line for the assistant district attorney:

I hereby join, consent to and approve of: (1) the stipulations of evidence pursuant to Art. 1.15, C.C.P.; and (2) the waiver of jury trial pursuant to Art. 1.13, C.C.P., conditioned on the Court accepting this Plea Agreement and sentencing the Defendant in accordance with this Plea Agreement.

Under the unambiguous language of the Plea Papers, the above-quoted words were not part of the agreement between appellant and the State because these words fell below the End-of-Agreement Sentence.

The Plea Hearing

At the plea hearing, the trial court stated that although appellant had reached an agreement with the State, the trial court could reject the agreement. The trial court stated that if it rejected the agreement, nothing appellant said or did at the hearing could be used against her, but if the trial court followed the agreement, appellant would not be allowed to withdraw her plea. Appellant said she understood. The trial court inquired and received confirmation from appellant and appellant's trial counsel that appellant understood the proceedings. Appellant indicated she was not a citizen and the trial court explained the potential immigration consequences associated with her plea. Appellant confirmed that she understood these possibilities. The trial court also explained the punishment range for the offense and appellant again indicated she understood.

The trial court explained that appellant had the option to call witnesses before a jury and hold the State to its burden of proof, but "by proceeding here today [there would be] no jury, no witnesses" and appellant would be resolving her case with "just [the Trial Court] and paperwork." Again, appellant confirmed she understood. The trial court told appellant "in effect" she also was waiving her right to remain silent as to the charges and allegations against her. The trial court admonished appellant that in proceeding this way appellant would be admitting to facts "sufficient to sustain a conviction against [her]." Appellant confirmed that she understood. The trial court then stated that "[t]his would basically be an open plea to that range of punishment, 15 years in the penitentiary up to 99 years or life, again, understanding that no probation of any kind is an option for the Court." Appellant affirmed that she understood and that she had not been promised anything else or threatened in any way.

Just as appellant was about to make her plea, her counsel interjected, to notify the trial court that the indictment alleged that appellant possessed methamphetamine, while the lab report said that the substance was cocaine:

[Trial court]: All right. With that understanding then, what is your plea: Guilty or not guilty?

[Appellant's counsel]: Before you take a plea, I don't know how many times I've been over this indictment and the lab report, but the indictment actually alleges possession of methamphetamine. The lab report is cocaine. So I need to make sure that [appellant] understands, you know, why we're -- what's going on here and whether or not she is willing to -- you know, not resubmit to a grand jury indictment or willing to waive and allow the amendment, so I need to go over that with her.

[Attorney for the State]: I'm going to move to amend the indictment. My notes say cocaine, so that's -- it's just typed in wrong.

[Trial court]: That's fine. And it's probably not technically a different offense and so you're entitled to amend the indictment. I would -- under the law, it's the same offense, possession of a controlled substance, but we're -- so that means the State is entitled to amend the indictment upon their request, and I can grant it. The point of the matter is, though, we're going to just change what's alleged to what the lab test shows.

[Appellant]: Okay.

The trial court granted the State's request to amend the indictment, and the trial court discussed the procedure for amending the indictment. The State informed the trial court that State's Exhibit 4 contained a copy of the indictment and that the State could "mark out methamphetamine and write in cocaine." Exhibit 4 contains a copy of the original indictment in which the word "methamphetamine" has been crossed out and the word "cocaine" has been handwritten in place of the crossed-out word. Appellant, her attorney, and the attorney for the State each initialed this change to Exhibit 4.

Appellant's counsel questioned appellant about the amendment and whether appellant wanted to "go ahead and go forward with that amendment today" and appellant replied "yes." The trial court also asked appellant if she wanted to proceed with the plea that day, and appellant confirmed that she did. The trial court verified that appellant understood she was...