Ex parte Diaz, 65162

• Decision Date: 28 January 1981
• Docket Number: No. 65162,65162
• Citation: 610 S.W.2d 765
• Parties: Ex parte Leonard Ortega DIAZ, Jr.
• Court: Texas Court of Criminal Appeals

Page 765

610 S.W.2d 765

Ex parte Leonard Ortega DIAZ, Jr.

No. 65162.

Court of Criminal Appeals of Texas, En Banc.

Jan. 28, 1981.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an application for post-conviction writ of habeas corpus, pursuant to Article 11.07, V.A.C.C.P., wherein petitioner alleges in his application for writ of habeas corpus that he was denied the effective assistance of counsel at his trial, which resulted in his entering unknowing and involuntary pleas of guilty. The contentions have been reviewed and found to be without merit. Cf. Cross v. Metcalfe, Tex.Cr.App., 582 S.W.2d 156.

The application was improvidently set. It should have been denied without written opinion.

The requested relief is denied.

McCORMICK, J., concurs in the result.

ROBERTS, Judge, dissenting.

Judge W. C. Davis's opinion, below, sets out the facts which show that the applicant is entitled to relief. I substantially agree with that opinion and with Judge Clinton's.

I have asked myself how the same court that granted relief in Ex parte Harris, 596 S.W.2d 893 (Tex.Cr.App.1980), and Ex parte Bratchett, 513 S.W.2d 851 (Tex.Cr.App.1974), could deny it in this case. The court said that it gave relief to Harris and Bratchett because they had had no real assistance of counsel before they pleaded guilty (and they had not waived such assistance). ¹ Diaz had no more help from his cop-out man than Harris and Bratchett had from theirs. The only difference between the cases is that Harris and Bratchett were not given something that they said the State had promised them, ² while Diaz (without the assistance of counsel) apparently got the bargain he had worked out with the State. If today's result does turn on that distinction, the court has rejected its own constitutional teachings in favor of a new rule: The sham services of a cop-out attorney are acceptable so long as the State lives up to the bargain it struck with the uncounseled defendant.

The alternative is to believe that, although the principles of Ex parte Harris and Ex parte Bratchett remain intact, the court will not apply them to every habeas corpus applicant who proves that he is deprived of his liberty in violation of them. The former alternative would mean that the court had turned its back on the constitutional guaranties of the assistance of counsel; the latter, that it has closed the door on the Great Writ in a way that denies equal protection of law. It is no wonder that the court shies away from explaining which alternative it has chosen. I can not accept either of them. I dissent.

TEAGUE, J., joins in this dissent.

W. C. DAVIS, Judge, dissenting.

Despite the "extensive treatment" of the petitioner's allegations in the majority opinion, I feel obliged to elaborate further in order to register my dissent to the disposition of this case.

On February 28, 1975, petitioner was convicted for aggravated robbery in Cause No. B-8181 ¹ and aggravated assault in Cause No. A07816. Petitioner was sentenced the same day to 15 years confinement and ten years confinement respectively. In both of these causes the petitioner entered pleas of guilty after waiving the right to a jury trial, the ten day period for preparation by appointed counsel and the right to confront and cross-examine witnesses. No appeals were taken from these convictions.

The petitioner alleges in his application for writ of habeas corpus that he was denied the effective assistance of counsel at his trial, which resulted in the petitioner entering unknowing and involuntary pleas of guilty. Petitioner further contends that his pleas were involuntary because he did not receive adequate notice of the charges to which he was pleading. ² A hearing was held on petitioner's application on June 8, 1979, wherein the petitioner testified that on the day of his trial the court clerk asked him if he had a lawyer. The petitioner replied that he did not, and the clerk gave him a paper to sign. Fifteen minutes later, the petitioner's newly appointed attorney materialized at the courthouse. The petitioner stated that he spoke with his attorney for fifteen minutes prior to the trial.

The attorney appointed to represent the petitioner at his trial on these two felony offenses also testified at the habeas corpus hearing. Concerning the events that transpired the day of the trial, the attorney testified,

"I will tell you that I asked him as I have done on every one of my previous appointments and since appointments I always ask the person, did you do it? Are you guilty of the crimes that you have been charged with? I did in this case and Mr. Diaz told me he was guilty and that he did not want a jury trial and that he wanted to plead guilty. In fact, that is the reason for my appointment and the reason I came over because I was told that the man was there at the courtroom ready to plead and it was going to be done right then. Not only that, I asked him what kind of deal had he made. I don't know if I used the word deal but what had they said they would recommend. It could have been language such as that. He tells me the recommendation and it turns out here when I reviewed the papers ten years on one offense and fifteen years on the other to run concurrent. I asked him whether he was satisfied or not and whether that is what he wanted to do and he told me that it was. So the papers were signed and we appeared before Judge Milburn...

Q. (By petitioner's counsel): Can you tell me, sir, about how long probably you were here at the courthouse on this particular plea of guilty, if you recall?

A. Yes, I do recall and I would say somewhere around thirty minutes total. I don't know if I talked to Mr. Diaz ten or twenty minutes or fifteen but at any rate the total time was probably around thirty minutes, from the time I arrived until the time Judge Milburn had completed accepting the plea.

Q. Did you conduct any independent investigation concerning the facts of the case?

A. I did not because the man indicated he did not want a jury trial.

Q. Did you conduct any independent legal research concerning the elements of the crime in which he was charged?

A. Obviously not because everything transpired in the courtroom from the time I was appointed until the time the plea was over. I had no opportunity to report back to my office and research all the law on the various crimes he was charged with. He told me he had committed them.

Q. Did you read the District Attorney's file as to what the acts were or anything?

A. No, but I am not aware of the fact that the District Attorney would have permitted me to read his file.

Q. ... Why did you not advise Mr. Diaz of the consequences of his plea with particular regard to the essential elements with regard to the complaint of the indictment as to the offenses charged?

A. Why I did not do that?

Q. Yes, sir.

A. Because the man told me in response to my question that he was guilty and he wanted to plead guilty and that he did not want a jury trial. The only purpose of explaining defenses to the man if he wanted a jury trial then it would be necessary not to have any plea that day for me to go back and research a bunch of law, with the idea of preparing to defend his case in a jury trial... You know there might be a number of defenses but it would take a study of the law and all that and I didn't come over with the statute book prepared to explain however many numerous defenses there are to the man. I took him at his word when he told me he wanted to plead guilty and accept the recommendation of the District Attorney's Office and go off to the penitentiary and start serving his time.

Q. Did you or did you not advise him that the indictment had to be on file two days prior to the arraignment and also that he was entitled to ten days for trial preparation following court appointment.

A. No, sir, I did not.

Q. For what reason?

A. If he had indicated to me that he was interested in defending the case I would have started advising him in accordance with what his rights were." (Emphasis added)

On cross-examination by the prosecutor, the attorney stated:

"Whenever I have had these appointments where the person has already indicated that he wants to plead and he is already there at the courtroom and they call me to come over as quick as you can, everybody is waiting, the Judge, the District Attorney and the prisoner. I have come on over and the Clerk will be there with the papers and the man will be there and it is at one of the counsel tables in the courtroom and I will sit there with the Clerk's representative or herself and everybody that is necessary to sign the paper will do it in the presence of each other...

Q. Did you go over this (waiver of ten day period of preparation) with the defendant?

A. I did go over this and it is obviously not a twenty minute function but he was advised that he was waiving a jury trial and that he was waiving the ten day period for trial... Without getting into hearsay that is what I was told that I was appointed and that the man wanted to plead and wanted to do it right then, get over here as quick as you can, everybody is waiting."

The court has entered findings of fact and conclusions of law concerning this hearing. The trial court merely concluded that:

"1. The trial court substantially complied with the requirements of Article 26.13 C.C.P.; it does not appear the defendant was mislead or harmed by the admonishment of the court.

2. If the defendant in fact did not understand he was waiving certain of his constitutional rights, he misled the trial court.

3. If all the defendant's testimony is accepted at face value, the ends of justice would be served by granting a new trial."

The adequacy of an attorney's representation is gauged by the "reasonably effective assistance of counsel" standard. See Ex Parte Duffy, 607 S.W.2d 507 (1980). The belated appointment of counsel, standing alone, does...