Diaz, Alonso v. The State of Texas--Appeal from 384th District Court of El Paso County

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
ALONSO DIAZ,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 

 

 

No. 08-01-00042-CR

 

Appeal from the

 

384th District Court

 

of El Paso County, Texas

 

(TC# 20000D04065)

 
MEMORANDUM OPINION

This is an appeal from a conviction for the offense of attempted aggravated sexual assault and aggravated kidnaping. At trial, Appellant pleaded guilty before the jury and the jury assessed the punishment at confinement for twenty (20) and twenty-five (25) years' respectively. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Alonso Diaz, Appellant, was arrested on or about August 4, 2000 for intentionally and knowingly abducting Susanna Porras by using and threatening to use deadly force with intent to abuse sexually. Following his arrest, Appellant confessed to Detective Adrian Medina that he intended and did in fact commit the charged offenses. At trial, the court informed Appellant, prior to entering his plea of guilty, of his right to challenge the confession and of the consequences of waiving such right. During the State's chief-in-case, the State introduced evidence of the offense and Appellant's counsel (hereinafter "counsel") objected to the introduction of Appellant's testimony to Detective Medina. Counsel later moved for a directed verdict, but the court denied the motion. After both sides closed, the court instructed the jury that Appellant knowingly and voluntarily entered his guilty plea after being informed of the consequences. When the jury delivered its sentencing, the court asked Appellant to raise any legal reasons for why the punishment should not take effect against him. Appellant replied "no," and the court affirmed the jury's sentencing.

On appeal, Appellant now seeks to reverse his guilty plea and requests for new trial on the grounds that he entered his plea based on the misinformation his counsel had provided. Appellant claims that his counsel informed him that evidence from the actual offenses, including his testimony to Detective Medina, would not be introduced before the jury and that doing so may result in lighter sentencing. Appellant contends that had he been given the correct information, he would not have pleaded guilty, and that this could have resulted in a different outcome. Nothing in the record, however, substantiates such claims.

II. DISCUSSION

Appellant brings one issue on appeal regarding whether Appellant's guilty plea was involuntary. Appellant asserts that his counsel was ineffective during trial because he misinformed him that evidence of the offense he had committed would not be admissible at trial if he pleaded guilty before the jury.

A guilty plea must be made voluntarily and knowingly to be valid. White v. State, 892 S.W.2d 223, 226 (Tex. App.--El Paso 1995, no pet.) (citing Ex Parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985)); Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989). A guilty plea that is the result of ineffective assistance of counsel is involuntary, and therefore invalid. Courtney v. State, 39 S.W.3d 732, 734 (Tex. App.--Beaumont 2001, no pet.) (citing Ex Parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980)). If an attorney conveys erroneous information to his client, and the client enters a plea of guilty based on that misinformation, the plea is involuntary. Rivera v. State, 952 S.W.2d 34 (Tex. App. LEXIS 3702 (1997)) (citing Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd)). The federal and state constitutions guarantee the right to effective assistance of counsel to the accused, and as such, trial counsel must adequately prepare the case. See U.S. CONST. Amend. VI; Tex. CONST. art. I, 10; Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986); Ex parte Wellborn, 785 S.W.2d 391 (Tex. Crim. App. 1990); McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996); Pena v. State, 932 S.W.2d 31 (Tex. App.--El Paso, 1995 no pet.). Appellant contends he would not have pleaded guilty if counsel had not misinformed him, and that his plea is therefore involuntary.

In determining the validity of a claim of ineffective assistance of counsel, Texas has adopted the two-pronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Bradley v. State, 960 S.W.2d 791, 803 (Tex. App.--El Paso 1997, pet. ref'd). The Strickland test requires that a defendant show: (1) that counsel's performance was deficient from an objective standard of reasonableness, and (2) that counsel's error was so serious as to give rise to a reasonable probability that but for the defendant's reliance on the errors, the outcome would have been different, thereby depriving the defendant of a fair trial. Strickland, 466 U.S. at 687. Proper analysis of the Strickland test requires examining the totality of a counsel's representation, not isolated acts or omissions, and a defendant has the burden of proof to establish ineffective counsel assistance by providing strong enough evidence to overcome a strong presumption that counsel's performance was reasonable. Bradley, 960 S.W.2d at 803; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Appellant contends that because counsel did not understand the legal consequences of a guilty plea before the jury, this Court must grant him a new trial. He points out that counsel did not know that a plea of guilty before the jury causes the trial to become a unitary proceeding and that counsel told him that certain evidence would not be used against him at trial. Furthermore, counsel did not understand that even if Appellant pleaded guilty, the State has to prove his guilt beyond a preponderance of evidence by introducing evidence of the offense. Appellant further contends that the fact that counsel objected to the introduction of testimony concerning the offense and the fact that counsel moved for a directed verdict prove that counsel conveyed misinformation and that he suggested to Appellant to plead guilty. Even if this appellate court assumed that Appellant has provided sufficient evidence to support his allegation that his counsel's actions were unsound trial strategy, Appellant has failed to establish the first prong of Strickland absent any evidence of the reasons for trial counsel's actions. Jackson, 877 S.W.2d at 771-772; Courtney, 39 S.W.3d at 737. Because counsel has not had the opportunity to explain his actions during the trial, this Court cannot make such determination based on mere speculation. Appellee contends that even if counsel conveyed erroneous information to him, thereby satisfying the first prong of the Strickland test, Appellant has not provided any evidence to substantiate his claim that but for the erroneous advice, he would not have pleaded guilty. In fact, Appellant pleaded guilty because he committed the offense and that he made the decision after properly being informed of the consequences without being under any influence or threat. In White v. State, the Court faced similar circumstances and held that the Appellant's guilty pleas were voluntary because their pleas were entirely based on their own decision, and because they were properly admonished by the trial courts. White v. State, 892 S.W.2d 223, 223 (Tex. App.--El Paso 1995, no pet.). This Court follows that holding.

Proper analysis of a claim of ineffective assistance of counsel generally requires that a defendant develop the issue through post-trial evidence. Even after becoming aware that the information his counsel provided was false, Appellant chose to plead guilty again and did not allege his right to effective counsel when counsel moved for new trial. Accordingly, he has failed to prove that he pleaded guilty because of the misinformation, and thus his plea voluntary. Appellant's action raises a doubt that the only reason he has suddenly decided to assert his right to effective counsel is that he is not content with the jury's assessment of punishment, which turned out to be more severe than he had hoped. The second prong is not met. Appellant's sole issue on review is overruled.

Having overruled Appellant's sole issue on review, we affirm the judgment of the trial court.

July 10, 2003

 

_______________________________________

RICHARD BARAJAS, Chief Justice

 

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

 

(Do Not Publish)