Jose David Diaz v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

Nos. 04-00-00302-CR & 04-00-00303-CR
Jose David DIAZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court Nos. 99-CR-3394 & 99-CR-3395
Honorable Sid Harle, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: July 25, 2001

AFFIRMED

Appellant Jose David Diaz entered a non-negotiated plea of nolo contendere to two offenses of aggravated assault with a deadly weapon. The trial court assessed his punishment at six years imprisonment for each offense, sentences running concurrently. On appeal, Diaz contends (1) his plea was involuntary, (2) the trial court abused its discretion in refusing to allow him to withdraw his plea, and (3) his plea was the result of ineffective counsel.

background

Diaz and several of his friends got into a fight with another group of young men around midnight at a Fiesta carnival. Soon after the fight ended, Diaz returned with a gun and fired a number of shots into the group, wounding two individuals. Several witnesses, including two police officers, saw Diaz fire into the crowd, then drop the gun and flee the scene. The officers and one of the witnesses chased Diaz as he ran from the carnival; the witness tackled Diaz and the officers immediately handcuffed and arrested him.

After a jury had been selected but before the trial began, Diaz pleaded nolo contendere to both offenses without a plea bargain. He pleaded true to one enhancement for attempted burglary and asked for deferred adjudication. The trial court accepted the plea and delayed sentencing until the probation department could complete a presentence investigation report.

A week later, Diaz moved to withdraw his pleas. At the hearing, the trial court denied the motion and proceeded to sentence Diaz to concurrent six-year terms in prison. Diaz filed a notice of appeal, then filed a motion for new trial that was overruled by operation of law.

Plea of Nolo Contendere

In points of error one and two, Diaz argues his plea was involuntary and the trial court erred in refusing to allow him to withdraw it. In point of error three, he contends his plea stemmed from the ineffectiveness of his counsel. Because these issues are intertwined, and the same facts apply to each issue, we consider these points together.

A plea is a waiver of trial and it must be an intelligent act done with sufficient awareness of relevant circumstances. Brady v. United States, 397 U.S. 742, 748 (1970). When an attorney misinforms a client, a plea of guilty based on the misinformation will render the plea involuntary. See Ex parte Kelly, 676 S.W.2d 132, 134-35 (Tex. Crim. App. 1984); Rivera v. State, 952 S.W.2d 34, 36 (Tex. App.--San Antonio 1997, no pet.). Diaz bears the burden to show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 57 (1985). We review the trial court's ruling on a motion to withdraw a plea under an abuse of discretion standard. Rivera, 952 S.W.2d at 35-36.

In his motion for new trial and attached "declaration," Diaz contends counsel did not interview or subpoena two defense witnesses, did not ask for a continuance, and - most significantly - did not inform him until after he pleaded nolo contendere that the gunshot residue test was negative for both hands. He relies on his own motion in the record to argue on appeal his plea was not voluntary. However, the motion for new trial was written after the hearing on his motion to withdraw his plea, and the record of the hearing does not support Diaz's primary contention that he was not told about the results of the gunshot paraffin test until after he had pleaded nolo contendere.

At the sentencing hearing, when Diaz was asked why he wished to withdraw his plea, he testified as follows:

A: Well, I feel I was misinformed on facts pertaining to the case which I feel that - I also feel if I would have been told the true - the issue of nolo contendere, I would have never taken this plea.

Q: Can you be more specific as to what facts you knew?

A: The facts on the discovery. I don't know how they call it in state court. I was under the impression it was called a discovery package. That doesn't exist, from what my attorneys told me. It is not - I would like to - and I was under a lot of outside pressure from my family into taking this plea agreement.

Q: Anything else you want to tell Judge Harle about this situation?

A: Other than I would like to fight it after all, that's it. I would like to have a fair trial. And if somebody can, you know - they can give me the discovery package, whatever it's called. That way I can look through it. I haven't been given a chance to look at it.

. . . .

Q: As far as the other misinformation you are claiming was a nolo contendere plea, what are you talking about there?

A: I was under the impression that nolo contendere had a different definition of in between not guilty and guilty, and then I came to find out in the law library it was actually - it meant guilty, so I learned through the law library.

Diaz did not bring up the motion for continuance, favorable witnesses not being called, or the gunshot residue report. Nor does the record show his counsel admitted not telling him about the gunshot residue test until after Diaz entered his plea. At the close of Diaz's testimony, the trial court denied the motion to withdraw the plea and requested argument on punishment.

Diaz's counsel asked to address the court. He implored the court "please to not misinterpret the Defendant as having a bad attitude." He went on to plead for a sentence of five years, and explained the circumstances that occurred just before Diaz entered his plea., saying:

[This] was called to trial during such time there was a visiting judge and the State's offer at that time was five years, and Mr. Sherman was filling in. I was out of town. And the defendant wanted to, you know, mull it over. In any event, after we came back . . . if I remember correctly at some point, I am thinking it was seven years or eight years . . . but anyway, once the jury got started, [the DA] became pretty wound up about it and decided that since he picked a jury the offer had to be increased. . . .[T]he more we tried to confer and work it out, he would keep raising the offer. He said the State had gone to all the work of picking a jury. It made it very hard.

. . . .

Additionally, there was another problem that perhaps, you know, made occasion [sic] the Defendant to be, you know, jittery. That had to do with the fact that Mr. Pennington came for the - I think the first time he knew about it with a gunshot residue test immediately prior to picking the jury, which indicated that the Defendant did not fire a weapon, that there was no residue on either his right hand or left hand. So with that being introduced at the last minute, despite the fact we - in fact, I spoke with this prosecutor sometime before, and she had quite honestly said they didn't have it in the file at that time. I think that Mr. Pennington, you know, looked into it and he got it faxed over. For whatever reason, the police department did not put that matter into the State's file. All of this just goes to show that from the Defendant's point of view, You Honor, he came to be distrustful. It made it hard to manage a rapidly deteriorating situation. Of course, Mr. Sherman and myself knew that in order to defend this case, if the Defendant took the stand his criminal record, you know, could come back to haunt him, so it was a very difficult situation. And it's certainly nobody's fault. I am saying if the State didn't have it in the file at the time, they didn't have it in the file. Mr. Pennington did bring it to our attention.

While this indicates the information about the gunshot residue test came in at the last minute, it does not show, nor did counsel testify, that it came in after the plea as Diaz contends. There is no other information in the record concerning the gunshot residue test.

A defendant's claim that he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary. Rivera, 952 S.W.2d at 36. In this record, Diaz's claim stands alone. We are not persuaded counsel was ineffective, nor that the trial court abused its discretion. Accordingly, we overrule all points of error.

We affirm the trial court's judgment.

CATHERINE STONE,

JUSTICE

DO NOT PUBLISH