State v. Arizmendi

• Decision Date: 17 May 2017
• Docket Number: NO. PD-0623-16,PD-0623-16
• Citation: 519 S.W.3d 143
• Parties: The STATE of Texas v. Rosa Elena ARIZMENDI, Appellee
• Court: Texas Court of Criminal Appeals

519 S.W.3d 143

The STATE of Texas

v.Rosa Elena ARIZMENDI, Appellee

NO. PD-0623-16

Court of Criminal Appeals of Texas.

Delivered: May 17, 2017

ATTORNEYS FOR APPELLANT: Darrell R. Carey, Law Office of Darrell R. Carey, 300 15th Street, Canyon, TX 79015.

ATTORNEYS FOR THE STATE: Stacey M. Soule, State Prosecuting Attorney, P.O. Box 13046, Austin, TX 78711.

Keller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Yeary, Newell, and Keel, JJ., joined.

Appellee pled guilty pursuant to an agreement, but she moved for a new trial after her co-defendant prevailed on a motion to suppress. We conclude that appellee's allegations in the motion for new trial are without merit because her failure to discover the new information was due to her own lack of diligence. Even if appellee had been diligent, we also conclude that the ruling on the motion to suppress was not evidence and that the officer's testimony at the hearing was either cumulative of the video evidence appellee had already seen or collateral because it was not material to the suppression issue in the co-defendant's case. Finally, we conclude that appellee's ineffective assistance allegation was not properly before the trial court because it was not made within thirty days of the judgment and the State objected to it. Consequently, we conclude that the court of appeals erred in upholding the trial court's granting of a new trial.

I. BACKGROUND

A. Trial-Level Proceedings

Appellee and co-defendant Jose Luis Cortez were traveling in a van that was stopped for a traffic violation—driving illegally on the improved shoulder of a highway. As a result of the stop, appellee was ultimately charged with possession with intent to deliver methamphetamine in an amount of more than 400 grams. She entered into an agreement to plead guilty and receive a sentence of twenty-five years' confinement and a $5,000 fine. She received various admonishments, orally or in writing, and the trial court asked whether she understood them. The trial court also inquired into the voluntariness of her plea, her mental capacity, and whether she was a citizen of the United States. Appellee answered all inquiries in a manner consistent with her plea being voluntary. She also signed a judicial confession, and she signed a section titled, "WAIVER OF APPEAL, et al.," which stated, "The Defendant, in writing and in open Court, and joined by counsel for defendant, waives and gives up the time provided by law in which to file a Motion for New Trial, Motion for Arrest of Judgment, and Notice of Appeal." The trial court accepted the plea agreement and sentenced appellee accordingly. These plea proceedings occurred on April 28, 2015.

On May 4, 2015, a motion to suppress hearing was held in Cortez's case, and the motion was granted.¹ In its findings of fact, the trial court noted that the only evidence before it was the arresting officer's testimony and the video of the stop. The trial court found that the video showed Cortez's vehicle's "right rear tire (or its shadow) ... to come in the proximity of and possibly touch the inside portion or more of the white line delineating the roadway from the improved shoulder [the "fog line"] ... but not to extend past the ... outermost edge of the fog line."² In what is labeled a conclusion of law, the trial court found that Cortez's "vehicle did not cross outside the outermost edge of the fog line onto the improved shoulder of the roadway."³ The trial court further concluded that "[c]rossing over the portion of the fog line nearest the center of the roadway or upon the fog line is not a violation of Texas traffic law."⁴

Appellee filed a motion for new trial. The motion alleged that "[t]he verdict in this cause is contrary to the law and the evidence," and it asked the trial court to grant a new trial in the interests of justice. The motion referred to what happened in Cortez's case—the motion to suppress hearing, the video, and the granting of the motion to suppress—and it alleged that the record and the video "clearly show that the vehicle was stopped without probable cause or other lawful reasons." The motion further contended that "[t]he video evidence does not support the officer's testimony, but rather, it supports that no violation of law was committed by the suspect vehicle." The motion also alleged that the arresting officer's testimony at Cortez's motion to suppress hearing was new evidence that was not available or known at the time appellee pled guilty. The allegedly new evidence in the officer's testimony was that the officer said, "I observed certain things that caught my attention," and that the things that caught his attention were that appellee's vehicle was a clean van. Appellee's attorney filed an affidavit mirroring these allegations.

The trial court held a hearing on the motion. Speaking as an officer of the court, appellee's attorney explained that she had reviewed the video before the plea and thought that the stop "was somewhat of a close call" but that a motion to suppress would not be successful. She also stated that she "got sidetracked with other issues" and never told her client that a motion to suppress was an option. She contended that her failure to do so was ineffective, and the State interjected, "I'm going to object to this line; that's not part of this Motion." The trial court allowed defense counsel to continue with her contention that she was ineffective. Defense counsel also tendered the transcript and findings of fact from the hearing on Cortez's motion to suppress.⁵

The State argued that appellee waived a right to a new trial in the plea papers. The State also argued that appellee had not presented any new evidence that was likely to result in a different ruling. The State pointed out that appellee had access to the video prior to the plea, that the only new evidence appellee was offering was the officer's statement about the vehicle being a clean van, and that the vehicle being a clean van was not the basis for the stop. The State further argued that the trial court's ruling in Cortez's case was incorrect and that the stop was lawful. With respect to the ineffective assistance allegation, the State contended that it was not properly before the court because it was not part of the original motion for new trial and was not otherwise filed within thirty days after judgment.⁶ Finally, the State argued that appellee was simply suffering from "buyers' remorse": thinking the plea bargain was a good deal at the time but later finding out that Cortez had obtained a different result.

With respect to whether appellee waived her right to a new trial, appellee's counsel stated, "I will agree ... that my client signed the waivers ... however, a client's waiver of motion for new trial, rights to appeal, all of the waivers that she executed at that time, must be knowing and voluntary ... And again, without having been advised, there can be no knowing waiver. And I ... confess that there couldn't have been knowing because of my failure." The State responded that this claim was also barred as untimely.⁷

The trial court granted appellee's motion for new trial "in the interest of justice," and the State appealed.

B. Appeal

On appeal, the State complained that the trial court abused its discretion in granting the motion for new trial. In support of this contention, the State made four arguments. First, it contended that appellee waived the right to seek a new trial. Second, it contended that appellee failed to meet the legal requirements necessary to obtain relief on the basis of newly discovered evidence. Third, it contended that the ineffective assistance of counsel issue was not properly before the trial court at the time of the motion for new trial hearing. Finally, it contended that appellee failed to offer any evidence that would have allowed the trial court to grant a new trial.

The court of appeals first held that appellee's written waiver of a new trial did not bar the trial court from granting relief.⁸ Relying upon Willis v. State ,⁹ the court of appeals found this to be so because, by setting a hearing on the motion for new trial, "the trial court implicitly granted [a]ppellee permission to file her motion for new trial notwithstanding her waiver."¹⁰

On the merits of the motion, the court of appeals held that appellee had presented new evidence to the trial court because (1) the video of the stop contained no audio,¹¹ and (2) the testimony at the suppression hearing was new because it did not exist at the time she pled guilty.¹² The court of appeals asserted that, "The chronology demonstrates that the failure to obtain the evidence was not due to a lack of diligence" and the arresting officer's "testimony was not cumulative, corroborative, collateral, or impeaching."¹³ Because appellee's case was pending in the same court as her co-defendant's, the court of appeals concluded that the arresting officer's testimony probably would have resulted in a similar ruling if a motion to suppress had been filed in appellee's case.¹⁴ Consequently, the court of appeals found that appellee satisfied the test for granting a new trial on the basis of newly discovered evidence.¹⁵

Finally, in light of its disposition of appellee's newly-discovered-evidence claim, the court of appeals declined to determine whether appellee's ineffective assistance claim was properly before the trial court.¹⁶

II. ANALYSIS

The State contends that the court of appeals erred in affirming the trial court's order granting a new trial because appellee "affirmatively waived that right and failed to present a valid legal claim."¹⁷ We will focus on the State's second contention that appellee failed to present a valid legal claim.¹⁸ The State argues that appellee failed to satisfy the requirements for granting a new trial on the basis of newly discovered evidence. The State also argues that appellee's ineffective assistance of counsel claim was untimely and was therefore not a...