Soliz v. State
| Decision Date | 17 August 2021 |
| Docket Number | 01-20-00193-CR,01-20-00192-CR |
| Court | Texas Court of Appeals |
| Parties | DAVID S. SOLIZ, Appellant v. THE STATE OF TEXAS, Appellee |
Do not publish. TEX. R. APP. P. 47.2(b).
On Appeal from the 230th District Court Harris County, Texas Trial Court Case Nos. 1560682 &1560683
Panel consists of Justices Hightower, Countiss, and Farris.
After appellant, David S. Soliz, without agreed punishment recommendations from the State, pleaded guilty to the felony offenses of insurance fraud[1] and forgery of a commercial instrument, [2] the trial court assessed appellant's punishment at confinement for two years for each offense suspended the sentences, placed appellant on community supervision for five years for each offense, and ordered that appellant pay $2, 200 in restitution related to the insurance fraud offense. In three issues, appellant contends that the trial court erred in denying his motion to withdraw his guilty pleas, his trial counsel provided him with ineffective assistance of counsel, and the record does not support the trial court's restitution order.
We modify the trial court's judgments and affirm as modified.
And a Harris County Grand Jury issued a true bill of indictment alleging that appellant, on or about July 19, 2016 "unlawfully, and with the intent to defraud and harm forge[d] the writing duplicated [and] attached [to the indictment] . . ., which was purported to be the act of another who did not authorize that act, by making and passing it, knowing it was forged."
Subsequently, appellant signed and filed, in each trial court cause number, a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," in which he pleaded guilty to the felony offenses of insurance fraud and forgery of a commercial instrument and admitted that he committed the acts alleged in each indictment. Appellant's trial counsel also signed the "Waiver[s] of Constitutional Rights, Agreement[s] to Stipulate, and Judicial Confession[s]," affirming that he believed that appellant had entered his guilty pleas knowingly, voluntarily, and after a full discussion of the consequences of the pleas. And trial counsel affirmed that he believed that appellant was competent to stand trial.
Appellant also signed written "Admonishments, "[3] in each trial court cause number, informing him that he had been indicted for the felony offenses of insurance fraud and forgery of a commercial instrument and the punishment ranges for the offenses. Appellant represented that he "waive[d] and g[a]ve up any time provided [him] by law to prepare for trial," was "totally satisfied with the representation provided by [his trial] counsel," "received effective and competent representation," and understood "the consequences of [his] plea[s] . . . after having fully consulted with [his] attorney." Appellant requested that the trial court accept his guilty pleas. The written admonishments include findings, signed by the trial court, "that [appellant was] fully mentally competent" and his "plea[s] w[ere] freely, knowingly and voluntarily entered." Appellant's trial counsel signed the admonishments, representing that he had advised appellant and appellant was "aware of the consequences of [his] plea[s]."
Appellant also signed the "Statements and Waivers of Defendant"[4] in each trial court cause number, affirming that he was mentally competent, "underst[ood] the nature of the charge[s] against" him, understood the trial court's admonishments, understood the consequences of his guilty pleas, and had consulted with his trial counsel about the pleas. Appellant stated that he had "committed each and every element alleged" in the "Waiver[s] of Constitutional Rights, Agreement[s] to Stipulate, and Judicial Confession[s]," and freely, knowingly, and voluntarily entered his guilty pleas. Appellant also waived his right to have the trial court orally admonish him and to have the court reporter record his pleas.
As to the right to appeal, appellant signed the "Advice of Defendant's Right to Appeal," in which the trial court advised him that Texas law gives a defendant the right to appeal his conviction, but if he pleaded "guilty or no contest and accepted the punishment recommended by the [State]," he "c[ould not] appeal [his] conviction unless th[e] [c]ourt g[ave] [him] permission." Yet, if a defendant did not plead guilty, he "may have a right to appeal."
The trial court found sufficient evidence of appellant's guilt and that appellant had entered his guilty pleas freely, knowingly, and voluntarily. It admonished appellant of his legal rights, accepted his guilty pleas, and ordered a presentence investigation. The trial court also signed a "Certification of Defendant's Right to Appeal" in each trial court cause number, certifying that each case was "not a plea-bargain case[] and [appellant] ha[d] the right of appeal."[5] Appellant and his trial counsel signed the certifications, representing that he had been "informed of the rights concerning an[] appeal of [his] criminal case[s]." At the bottom of the page, the certifications state:
[a] defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant's right to appeal in every case in which it enters a judgement of guilt or other appealable order. In a plea bargain case-that is, a case in which a defendant's plea was guilty or nolo contender[e] and the punishment did not exceed the punishment recommended by the [State] and agreed to by the defendant-a defendant may appeal only: (A) those matters that were raised by a written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal. Texas Rule[] of Appellate Procedure 25.2(a)(2).
Before his sentencing hearing, appellant filed a motion to withdraw his guilty plea in each trial court cause number. He argued that his pleas were involuntary because his trial counsel led him to believe that "he would be able to preserve his right to appeal all matters related to the case[s], including his guilty plea[s], the State's allegations, and the merits of the underlying charges," and he did not understand that, by pleading guilty, he had "waived his right to contest the charges [against him]." He asserted that his inability to effectively communicate with trial counsel contributed to his mistaken understanding, and he pleaded guilty to the felony offenses of insurance fraud and forgery of a commercial instrument under duress because of his lack of confidence in his trial counsel's preparedness for trial.
At the hearing on his motion to withdraw his guilty pleas, appellant testified that he "want[ed] to go to trial," and if, when appellant entered his pleas, appellant's trial counsel had been "prepared to try the case and [appellant had] felt [that counsel] was prepared, [appellant] would have gone to trial." But based on his prior interactions with counsel and his discussion with counsel in the courthouse hall before he entered his pleas, appellant believed that counsel "was not prepared." Appellant also stated that when he met with his trial counsel some months earlier, they did not discuss any specific trial strategy. During their discussion in the courthouse hall, appellant recognized some of the State's witnesses, who were also standing in the hall, but counsel did not know the names of those witnesses, and he told appellant that he had not interviewed them.
According to appellant, he was given and signed the written admonishments, then pleaded guilty to the felony offenses of insurance fraud and forgery of a commercial instrument. He claimed, though, that he misunderstood the effect of his guilty pleas. Appellant recalled that, while he and his counsel were standing in the courthouse hall, counsel "recommended that [he] plead guilty, but that [he] had the opportunity to withdraw that plea." But appellant saw "at the top" of one of the documents he signed a statement that he "had [thirty] days to appeal [his] plea[s]." That statement, which was checked, confirmed in his mind what he understood counsel to have told him about his right to appeal.
Appellant also testified that he had tried to contact his trial counsel "numerous times" between the date he entered his guilty pleas and the date of the sentencing hearing, but counsel never responded. Feeling desperate because counsel was not responding to his text messages and telephone messages, appellant "filed a pro se document to the court to appeal [his] plea[s]." Appellant admitted that he had previously been convicted of the misdemeanor offense of "lying under oath."[6]
James Smith testified that he began practicing law in 1989 and had represented many defendants in plea hearings. He was appellant's trial counsel at the time appellant pleaded guilty to the felony offenses of insurance fraud and forgery of a commercial instrument. Smith had a general practice of admonishing a defendant about the consequences of his plea before the defendant entered his plea. Smith acknowledged that appellant's cases had a November 2019 trial setting and Smith had reviewed a "moderately large amount of...
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