Jose Octavio Diaz v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00324-CR
JOSE OCTAVIO DIAZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 14-00936-CRF-361
MEMORANDUM OPINION
In one issue, appellant, Jose Octavio Diaz, challenges his convictions for one count
of evading arrest with a motor vehicle and three counts of child endangerment. See TEX.
PENAL CODE ANN. § 22.041(c) (West 2011); see also id. § 38.04(b)(2)(A) (West Supp. 2015).
Specifically, appellant argues that the trial court erred in failing to sua sponte withdraw
his guilty pleas and enter pleas of “not guilty” when he presented evidence of his
innocence during the punishment phase of trial. We affirm.
I. BACKGROUND
In the instant case, appellant was charged by indictment with one count of evading
arrest with a motor vehicle and three counts of child endangerment pertaining to a high-
speed chase that occurred on December 13, 2013. See id. §§ 22.041(c), 38.04(b)(2)(A). This
case eventually proceeded to trial.
After several witnesses testified, appellant entered a plea of guilty to each of the
four charged offenses. Appellant admitted that he knew he was waiving his right to a
jury trial as to the guilt-innocence phase and that he was entering his pleas freely and
voluntarily. In addition, appellant made judicial confessions to the offenses and pleaded
“true” to the deadly-weapon enhancement corresponding with the evading-arrest-with-
a-motor–vehicle count.
The trial court subsequently brought the jury back into the courtroom, went
through a colloquy with appellant regarding his guilty pleas, and provided the jury with
the following instructions:
Ladies and gentlemen, that means basically we’re now finished with the
first phase of the trial and we’re going to go into the second phase of the
trial, the punishment phase. You will be instructed when you get your
instructions on deliberations for the punishment phase of the trial to find
the defendant guilty of all four counts and find the allegation as it relates to
the deadly weapon in Count One to be true.
Thereafter, the punishment phase of trial began.
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During the punishment phase, several witnesses, including appellant, testified.
On appeal, appellant characterizes his testimony during the punishment phase as
demonstrating his innocence as to each count. In any event, the trial court later read the
jury charge, which included the following instructions:
Members of the jury, the defendant, Jose Diaz, has been charged with the
offenses of evading arrest with a vehicle, a third-degree felony, as well as
three counts of endangering a child, each a State jail felony . . . .
The defendant has pled to these charges and true to the allegation of
the use of a deadly weapon as alleged in Count One.
He has persisted in entering his pleas of guilty and true as charged,
notwithstanding that the Court, as required by law, has admonished him
of the consequences. It plainly appearing to the Court that the defendant is
mentally competent, and that he makes these pleas freely and voluntarily,
his pleas have been received by the Court.
You are instructed to find the defendant guilty as charged in the
indictment and determine his punishment in accordance with the following
instructions.
The trial court then read the remainder of the charge that defined the punishment ranges
for each offense, among other things.
At the conclusion of the punishment phase, the jury accepted appellant’s guilty
pleas, found the deadly-weapon allegation to be true, and assessed punishment at nine
years’ incarceration in the Institutional Division of the Texas Department of Criminal
Justice for the evading-arrest-with-a-vehicle count and two years’ incarceration for each
endangering-a-child count. The imposed sentences were ordered to run concurrently.
Diaz v. State Page 3
Later, the trial court certified appellant’s right of appeal, specifically noting: “this
criminal case . . . is not a plea-bargain case as to punishment, and the defendant has the
right of appeal on punishment only.” The references to punishment in the certification
were handwritten by the trial judge. This appeal followed.
II. JURISDICTION
At the outset, we note that appellant does not challenge the punishment
assessments on appeal; instead, he focuses on what appear to be guilt-innocence issues,
despite the language of the trial court’s certification limiting his appeal “on punishment
only.” Texas Rule of Appellate Procedure 25.2(a)(2) provides:
A defendant in a criminal case has the right of appeal under Code of
Criminal Procedure 44.02 and these rules. The trial court shall enter a
certification of the defendant’s right of appeal each time it enters a
judgment 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 contendere and the
punishment did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant—a defendant may appeal only:
(A) those matters that were raised by written motion filed and ruled on
before trial, or
(B) after getting the trial court’s permission to appeal.
TEX. R. APP. P. 25.2(a)(2) (emphasis added). The limitation of a defendant’s right to an
appeal as stated in Rule 25.2(a)(2) expressly applies to a “plea bargain case[.]” See id.;
Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); see also Solis-Caseres v. State, No.
09-13-00580-CR, 2015 Tex. App. LEXIS 2046, at *20 (Tex. App.—Beaumont Mar. 4, 2015,
Diaz v. State Page 4
no pet.) (mem. op., not designated for publication). Here, the record clearly demonstrates
that appellant did not plead guilty to the charged offenses pursuant to a plea-bargain
agreement or in exchange for the State recommending a sentence. Accordingly, nothing
in Rule 25.2(a)(2) limits appellant’s right of appeal. See TEX. R. APP. P. 25.2(a)(2); see also
Solis-Caseres, 2015 Tex. App. LEXIS 2046, at *20; but see Cash v. State, Nos. 14-12-00718-CR,
14-12-00719-CR, 14-12-00728-CR, 2013 Tex. App. LEXIS 9393, at **5-6 (Tex. App.—
Houston [14th Dist.] July 30, 2013, pet. ref’d) (mem. op. on reh’g, not designated for
publication) (“Presuming, without deciding, that the trial court gave appellant
permission to appeal as to assessment of punishment, the trial court did not give
appellant permission to appeal as to non-punishment issues. Appellant has not
challenged the trial court’s assessment of punishment. In these two appeals, appellant
challenges only the sufficiency of the evidence supporting the trial court’s determination
of guilt. Appellant has validly waived his right to appeal the trial court’s determination
of guilt in these two cases. Accordingly, we dismiss for want of jurisdiction . . . .”).
Therefore, we will address the merits of appellant’s appellate issue.
III. APPELLANT’S GUILTY PLEAS
In his sole issue on appeal, appellant contends that the trial court erred in failing
to sua sponte withdraw his guilty pleas and enter pleas of “not guilty” when he presented
evidence of innocence, through his own testimony, during the punishment phase of trial.
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A trial court has no duty to sua sponte withdraw a defendant’s guilty plea absent
a timely request to do so, even if evidence is presented that reasonably and fairly raises
an issue as to his guilt. See Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004).
Specifically, in Mendez, the Court of Criminal Appeals noted:
We think that the rule was better stated in Taylor when we spoke in terms
of the familiar rule that a defendant has the right to withdraw a plea of
guilty (or nolo contendere) in a timely fashion, whether the trial be with or
without a jury. The procedures involved are different. As we have said, a
defendant’s decision to plead guilty entails the waiver of some important,
constitutional rights. These are “waivable-only” rights, in Marin’s
taxonomy. It is fitting that trial courts have a duty to implement those
rights, which shield each defendant at the outset of every criminal
proceeding. But after a court has fulfilled those duties and a defendant has
made a valid waiver of those rights, it is appropriate that the defendant be
required to take some affirmative action to don the armor again. The
number of cases in which defendants want to “unwaive” their right to plead
not guilty is small, the appearance of evidence that is inconsistent with guilt
is unpredictable, the significance of such evidence should be more apparent
to the defense than to the trial court, and cases are common in which there
is some evidence in the defendant’s favor but the defendant . . . had validly
chosen to plead guilty after weighing the advantage of such a plea against
the chance of acquittal.
....
It is reasonable to put on such a defendant the requirement of timely
seeking, in one way or another, to withdraw the plea of guilty. The
appellant not having done so, he may not complain for the first time on
appeal that the trial court did not do it for him.
Id.; see Sims v. State, 326 S.W.3d 707, 713 (Tex. App.—Texarkana 2010, pet. dism’d); see also
Kinley v. State, No. 07-11-00135-CR, 2012 Tex. App. LEXIS 8402, at **4-5 (Tex. App.—
Amarillo Oct. 4, 2012, no pet.) (mem. op., not designated for publication) (citing Perez v.
Diaz v. State Page 6
State, 07-10-0390-CR, 2012 Tex. App. LEXIS 3218, at **3-4 (Tex. App.—Amarillo Apr. 24,
2012, no pet.) (mem. op., not designated for publication)); Sanchez v. State, Nos. 05-10-
00292-CR, 05-10-00293-CR, 2011 Tex. App. LEXIS 4357, at *9 (Tex. App.—Dallas June 9,
2011, no pet.) (mem. op., not designated for publication) (“But while a defendant has a
right to timely request to change his plea of guilty to not guilty, the trial court has no duty
to conduct some special proceeding or to sua sponte withdraw a guilty plea when
evidence inconsistent with guilt is introduced.”).
Here, appellant did not timely request that the trial court withdraw his guilty plea.
In fact, he first raises this contention on appeal. As such, we conclude that appellant has
forfeited his right to complain on appeal that the trial court should have sua sponte
withdrawn his guilty plea. See Mendez, 138 S.W.3d at 350; Williams v. State, 10 S.W.3d 788,
789 (Tex. App.—Waco 2000, pet. ref’d) (concluding that appellant failed to preserve a
complaint that the trial court did not sua sponte withdraw his guilty plea because
appellant failed to properly preserve the issue “by objection, request, or in a timely
presented motion for new trial”); Sims, 326 S.W.3d at 713; see also Kinley, 2012 Tex. App.
LEXIS 8402, at **4-5; Sanchez, 2011 Tex. App. LEXIS 4357, at *9.
Despite the foregoing, appellant also contends that he “was not provided the
means to move to withdraw his plea by motion for new trial.” Specifically, he argues that
he was denied the right to counsel during a critical phase of the proceeding—the thirty-
day window for filing a motion for new trial.
Diaz v. State Page 7
The Clerk’s Record reveals that the trial court signed its judgment on the evading-
arrest-with-a-vehicle count on September 22, 2015. The trial court signed its judgments
on the child-endangerment counts on October 15, 2015. Appellant’s trial counsel filed a
notice of appeal and motion to withdraw on September 25, 2015. The trial court granted
trial counsel’s motion to withdraw and appointed appellate counsel on October 23, 2015.
In other words, the record reflects that appellant was represented by counsel at all critical
stages of the proceedings. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j) (West Supp. 2015)
(providing that an appointed attorney must represent the defendant until the “charges
are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is
permitted or ordered by the court to withdraw as counsel for the defendant after a finding
of good cause is entered on the record”); see Johnson v. State, 352 S.W.3d 224, 228-29 (Tex.
App.—14th Dist.] 2011, pet. ref’d); see also In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim.
App. 2008) (noting that until a motion to withdraw is granted, counsel still represents his
or her client). We therefore reject appellant’s contention that he “was not provided the
means to move to withdraw his plea by motion for new trial.” And based on the
foregoing, we overrule appellant’s sole issue on appeal.
IV. CONCLUSION
We affirm the judgment of the trial court.
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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 24, 2016
Do not publish
[CR25]
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