Case Number: 01-17-00529-CR
Judge: Jane Bland
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Gary W. Bunyard
Defendant's Attorney: Angela Moore
Description: A grand jury indicted Wimberley on four counts of indecency with a child by
sexual contact, a second-degree felony, and a fifth count of indecency with a child
by sexual exposure, a third-degree felony. See TEX. PENAL CODE § 21.11(a), (d).
All counts concerned the same 14-year-old complainant.
In January 2017, the trial court held a brief status hearing. Wimberley
expressed dissatisfaction with his lawyer and requested the appointment of new
counsel. He stated that his lawyer was pressuring him to sign “a max penalty or max
punishment” plea agreement with the State, which he said had made two plea offers
involving 10-year sentences. In response, the trial court told Wimberley that his
lawyer had no say in what the State chose to offer and that Wimberley’s
dissatisfaction with the offers was not a valid basis for the appointment of new
counsel. In this context, the trial court also told Wimberley of the punishment ranges
for the charged offenses: two to 20 years of incarceration for counts one through four
and two to 10 years of incarceration for the fifth count. See TEX. PENAL CODE
Wimberley asked for a trial setting. The trial court identified the next
available trial date and said it would schedule a pretrial hearing beforehand, at which
time the court would ask whether a plea bargain had been reached. During the course
of this hearing, the trial court stated that Wimberley was entitled to a trial and assured
him that he was “more than welcome to have a trial” if he wanted one.
The trial court held a pretrial hearing in March 2017. The trial court again
informed Wimberley of the punishment ranges for the charged offenses and
admonished him that, if he were to be found guilty of all counts and sentenced
consecutively, he could be sentenced to as many as 90 years in prison and that he
would have to serve half of any sentence imposed before becoming eligible for
probation. It also admonished him that he was eligible to be sentenced to probation.
The trial court asked if the State had made its best offer and whether Wimberley
understood the offer. Both parties answered in the affirmative, at which point the
trial court asked if either party objected to disclosure of the offer’s terms. Neither
the State nor the defense objected. Then the State disclosed the terms of its offer,
which entailed a guilty plea to the fifth count, eight years of incarceration, and
registration as a sex offender for a limited period of time. The trial court explained
parole eligibility under the plea offer and stated that a conviction on any of the first
four counts would require lifetime registration and asked whether Wimberley
understood the risk he was taking by rejecting the State’s offer. Wimberley said that
Wimberley rejected the State’s plea offer at that time. But almost two months
later he pleaded guilty to all five counts without a recommendation as to punishment.
The trial court deferred finding Wimberley guilty pending the receipt of
evidence as to punishment. Sitting as factfinder, the trial court heard the evidence.
Afterward, the court deferred adjudicating guilt on counts one and two and imposed
10 years of community supervision on Wimberley. It also imposed a $2,000 fine in
connection with count one. The trial court entered judgments of conviction on
counts three and four and assessed a punishment of four years’ incarceration on each
count to run concurrently. The State moved to dismiss count five as a lesser-included
offense and the court dismissed it.
I. Plea Negotiations
Wimberley contends that the trial court violated his right to due process by
participating in plea negotiations and that its participation rendered his guilty pleas
involuntary. The State responds that Wimberley did not preserve this issue for
appellate review. On the merits, the State disputes that the trial court participated in
plea negotiations between the State and Wimberley.
To preserve a complaint for appellate review, a defendant must have raised
the issue by a timely request, objection, or motion in the trial court. TEX. R. APP. P.
33.1. In Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009), the Court held
that errors concerning the trial court’s improper intrusion into the plea-bargaining
process are subject to Rule 33.1’s requirements. Moore, 295 S.W.3d at 333. Thus,
“a defendant forfeits error if he fails to object to a trial judge’s improper participation
in plea negotiations.” Hallmark v. State, 541 S.W.3d 167, 170 (Tex. Crim. App.
2017). Because Wimberley did not object during the plea hearing or at any time
before the imposition of his punishment, he has not preserved any error for our
review. See Hallmark, 541 S.W.3d at 170; Moore, 295 S.W.3d at 333.
II. Ineffective Assistance
Wimberley contends that his lawyer provided ineffective assistance by
disclosing privileged communications about plea negotiations before Wimberley
pleaded guilty. He argues that his lawyer disclosed this information to the trial court
in violation of Rule 410(b) of the Rules of Evidence.
To prevail on his claim of ineffective assistance, Wimberley must prove that
his lawyer’s performance fell below an objective standard of reasonableness and that
this deficiency prejudiced his defense. Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011). He bears the burden of proof on both issues, and failure to make
either showing by a preponderance of the evidence will defeat his ineffectiveness
claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Rule 410(b) bars the State from introducing the following types of evidence
against a defendant who pleaded guilty or participated in plea discussions:
● a guilty plea that was later withdrawn; ● statements made during proceedings in which a guilty plea was made; and ● statements made during plea discussions with the State if they did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.
TEX. R. EVID. 410(b). The rule, however, does not bar a defendant from introducing
such evidence in his defense. See TEX. R. EVID. 410(b)–(c); Jenkins v. State, 493
S.W.3d 583, 607 (Tex. Crim. App. 2016).
Wimberley’s lawyer did not question him about his guilty plea or plea
negotiations. Wimberley’s complaint concerns his lawyer’s failure to object to the
State’s disclosure of the terms of its plea offer during the March pretrial hearing and
the trial court’s subsequent explanation of and questions about the offer. This
discussion of the State’s offer did not violate the plain terms of Rule 410(b). See
TEX. R. EVID. 410(b) (barring evidentiary use against defendant of withdrawn guilty
pleas, statements made in guilty plea proceedings, and statements made during plea
discussions with the State that did not result in a guilty plea or resulted in a
withdrawn guilty plea). Thus, Wimberley has not shown that his lawyer’s failure to
object was deficient. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App.
1996) (to successfully argue that failure to object to State’s questioning was
ineffective assistance defendant was required to show that trial court would have
erred in overruling objection had it been made); Toledo v. State, 519 S.W.3d 273,
287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (same).
Nor has Wimberley shown any prejudice. He contends that he was harmed
by his lawyer’s failure to object because the discussion of the State’s offer allowed
the factfinder to learn that Wimberley considered the State’s offer and thus suggested
that he was guilty. Wimberley, however, rejected the State’s offer and nothing in
the record suggests that he considered accepting it. Nor is there any indication that
the trial court considered plea negotiations in assessing Wimberley’s punishment
after Wimberley later pleaded guilty without a plea agreement. The trial court,
sitting as factfinder, imposed a significantly shorter term of incarceration than the
State had offered. See Rodriguez v. State, 470 S.W.3d 823, 827 (Tex. Crim. App.
2015) (to show prejudice as to ineffective assistance claim based on lawyer’s advice
in plea negotiations defendant must show that sentence would have been less severe
but for deficiency); Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (to demonstrate prejudice where punishment is concerned
defendant must show it was substantially likely that he would have received less
severe punishment absent counsel’s deficient performance).
Outcome: We affirm the judgment of the trial court.