Diaz v. State

• Decision Date: 15 June 1995
• Docket Number: No. 13-94-117-CR,13-94-117-CR
• Parties: Pablo DIAZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 302

905 S.W.2d 302

Pablo DIAZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-94-117-CR.

Court of Appeals of Texas Corpus Christi.

June 15, 1995.

Fred Jimenez, Corpus Christi, Mary Esther Guerra, Corpus Christi, for appellant.

Carlos Valdez, Dist. Atty., Corpus Christi, Vincent Gonzalez, Asst. Dist. Atty., Kingsville, for appellee.

Before DORSEY, ONION ¹ and AKIN ², JJ.

OPINION

ONION, Justice (Assigned).

This appeal is taken from a conviction for aggravated possession of marihuana of 200 pounds or less but more than 50 pounds. Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex.Gen.Laws 2230, 2939 (Tex. Health & Safety Code § 481.121(c), (d)(1), since amended). ³ In a bench trial, appellant Pablo Diaz entered a plea of guilty to the indictment without a plea bargain. The trial court assessed punishment at 54 years' imprisonment and a fine of $10,000.00.

Appellant advances seven points of error. First, appellant contends that his plea of guilty was not voluntarily, knowingly and intelligently made. Second, appellant urges that his court-appointed trial counsel rendered ineffective assistance of counsel in violation of his constitutional rights. See U.S. Const., amends. VI and XIV; TEX. CONST. ART. I § 10. Appellant also contends that the trial court erred in denying a post-trial motion to weigh the substance without its wrappings to determine if the substance exceeded 50 pounds. The remainder of the points of error urge that the trial court erred in relying upon evidence outside the record in assessing punishment at one year for each pound of marihuana found, in failing to provide an impartial forum for the assessment of punishment, and in denying appellant's offer of proof or his right to perfect a bill of exception at the hearing on the motion for a new trial.

We shall consider the first two points of error together. Most of the evidence regarding the voluntariness of the plea and the issue of ineffective assistance of counsel are gleaned from the guilty plea proceedings, the hearing on the motion to weigh the substance without its wrappings, and the hearing on the motion for new trial. The voluntariness of a guilty plea is determined by the totality of the circumstances. Gibson v. State, 747 S.W.2d 68, 70 (Tex.App.--Corpus Christi 1988, no pet.). Without question now, a complaint of ineffective assistance of counsel may be raised in a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App.1993).

The record shows that appellant was indigent and that the trial court first appointed attorney J.J. Martinez to represent appellant. After a "ruckus" with the prosecutor Martinez, by written motion filed December 2, 1993, requested to withdraw. The trial court permitted the withdrawal of counsel on December 6, 1993. Appellant entered a guilty plea on December 8, 1993, while represented by his second appointed counsel of whom he now complains. Appellant's trial counsel testified at the post-trial hearings that he had been appointed approximately two weeks before the guilty plea but there was "much confusion going on because of the two attorneys." ⁴

At the guilty plea proceedings, the trial court communicated with appellant through the official court interpreter, having determined that appellant did not "understand the English language." The trial court also determined that appellant was the person named in the indictment (which alleged the offense was committed in Kenedy County on or about May 8, 1993) ⁵ and that appellant was pleading guilty freely and voluntarily and that appellant understood that there was no plea bargain. The State then introduced State's exhibit No. 1, a boilerplate judicial confession in English signed and sworn to by appellant. Two unsworn offense reports were also admitted into evidence without objection. The offense reports indicated the weight of the marihuana was approximately 54 pounds. One of the offense reports indicated appellant had a negative criminal record and there were no outstanding arrest warrants.

The State offered no evidence on the issue of punishment. See TEX.CODE CRIM.PROC.ANN. art. 37.07 § 3(a) (Vernon Supp.1995). Appellant had filed a sworn motion for probation stating that he had never been convicted of a felony, but appellant's counsel offered no evidence to support the motion. ⁶

At the conclusion of the guilty plea proceedings, the trial court asked the State for a recommendation as to punishment. The prosecutor recommended "a ten-year deferred probation, a $6,500.00 fine, a KSO storage fee in the amount of $54.00." The trial court, who had determined from appellant that he lived in Immokalee, Florida, made the following statement:

In this case the defendant had in his possession 54 pounds of Marihuana. Unfortunately, (sic) he was stopped, but there's many others who have not been stopped. As I said before, this Court has seen many defendants go through this Court who are from this particular city or township in Florida that are being used to transport Marihuana. It's got to stop. And the message has got to get to that community that the people from that community should not be preyed upon, they should not accept these criminal activities that corrupt and endanger and harm this country. It's got to stop and I will do my part to put a stop to it. I'm, not going to follow the recommendation of counsel.

Thereafter, the trial court assessed punishment at 54 years' imprisonment and a fine of $10,000.00.

Subsequently, appellant, represented by a third counsel, ⁷ filed a motion to allow the weighing of the contraband and a motion for a new trial. At the hearing on the former motion, an investigator for appellant's counsel testified that with the Sheriff's permission the contraband had been reweighed and that the 36 bundles weighed 53 pounds and 6 ounces. He estimated that the wrapping and duct tape on the bundles would weigh 3 1/2 to 4 pounds. The trial court denied the motion to reweigh the substances without the wrappings and tape. The next day the hearing on the motion for new trial was conducted.

Appellant's trial counsel testified at both hearings. He revealed that he had not examined or inspected the contraband involved in the instant case or asked that it be weighed without its wrappings to determine its true weight. Counsel had learned that the marihuana weighed approximately 54 pounds and knew that the offense was aggravated possession of marihuana because the amount supposedly was over 50 pounds. Based on his knowledge and experience with drug cases in Kleberg County, counsel knew that defendants generally got deferred adjudication or probation when the amount of marihuana ranged from 49 to 58 pounds. In fact, counsel had handled a case involving possession of 300 pounds of marihuana where the defendant received probation.

Counsel related that he attempted to reach a plea bargain with the prosecutor but that she insisted on an agreement where appellant would pay a $2,000.00 fine "up front." No agreement could be reached because appellant was indigent. Counsel then advised appellant to enter a plea of guilty without a plea bargain, told appellant that he would get probation, and promised appellant that appellant would be home for Christmas. Counsel explained that this advice was based on his own three-year experience in handling approximately one hundred cases in Kleberg County, and he knew this to be particularly true when a defendant had no history of violence, no arrest record, no weapon at time of arrest, and who did not resist arrest, all of which was applicable to appellant's situation.

On the day of the trial, counsel left appellant alone with an interpreter to have various documents and waivers of rights translated for appellant who spoke no English. When counsel returned to the room, he asked if appellant had any questions. After receiving a negative answer, counsel had appellant sign the various documents written in English, and counsel signed the certificate and other forms indicating that he had personally read to and explained to appellant the waiver of rights and contents of the documents when, in fact, he had not done so.

Counsel further stated that he believed that appellant relied on his statements that appellant would receive probation and be home by Christmas, that appellant, with his lack of education, had "put his trust in my hands, and unfortunately I dropped it." Counsel revealed that he told appellant to answer the questions of the Judge "and everything is going to be O.K." ⁸ Counsel felt that appellant would pay more attention to him than the Judge reciting admonishments.

Pablo Diaz testified through an interpreter that he entered a guilty plea to the indictment. The 31-year-old appellant, a native of Mexico, attended school there through the 6th grade, had a limited ability to read and write the Spanish language, but could not read, write or understand the English language. He had received no education in the United States. He was married, had four children, and lived in Immokalee, Florida, where he worked as a laborer.

Appellant testified that his attorney told him that he would get probation and be home by Christmas, and because of these representations he entered a plea of guilty. He relied upon the advice of his attorney. Appellant stated that he did not understand he had constitutional rights, particularly such rights as the right to trial by jury and the right of confrontation of witnesses. "I did not know because I did not understand. I was only confiding or based on what my attorney had told me." Appellant did acknowledge that his rights were read to him in Spanish and that he had signed "those papers, waivers (in English) following the indications of my attorney."

Appellant revealed that he did not understand that he was being sentenced to 54 years in prison until he was leaving the courtroom. Eight days later in jail appellant wrote a letter in Spanish to the trial...