Christopher Alexander Nunez v. State
This text of Christopher Alexander Nunez v. State (Christopher Alexander Nunez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Erroneous legal advice that prevents a defendant from making an informed and conscious choice about whether to waive his right to a jury trial constitutes ineffective assistance. Ex parte Canedo, 818 S.W.2d 814, 815 (Tex. Crim. App. 1991). If a defense counsel's misinformation induces a defendant to plead guilty, the plea is involuntary. Ex parte Kelly, 676 S.W.2d 132, 135 (Tex. Crim. App. 1984). When a defendant enters a plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based upon ineffective assistance of counsel, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52 (1985)).
At the motion for new trial, appellant did not testify but offered his affidavit as evidence. In the affidavit he stated that (1) he wanted to have the case heard and decided by a jury, but that his attorney insisted that he plead guilty and then go before the trial court on the issue of punishment; (2) his attorney did not advise him that the offense of which he was charged did not allow a probated sentence upon a finding of guilt or that he would be required to serve at least one-half of any jail sentence imposed; (3) his attorney did not adequately prepare him to testify at trial or prepare him for cross-examination; and (4) his attorney assured him that he would receive a probated sentence upon pleading guilty.
Appellant's attorney testified at the hearing on the motion for new trial and refuted appellant's contentions. The attorney stated that he conferred with appellant several times about the case before appellant entered his guilty plea. The attorney concluded that appellant had given a proper written confession and appellant agreed with him that guilt was not an issue and the only open question was punishment. The two discussed entering an open plea to the offense because the only possibility for probation was if the trial court granted appellant deferred adjudication. See Tex. Code Crim. Proc. Ann. art. 42.12 §§ 3g (Q)(H), 5(a) (West Supp. 1999).
With respect to appellant's desire for a jury trial, his attorney recalled that he and appellant discussed trial to a jury or the judge at least twice before he pleaded guilty and certainly in a conversation they had on March 19, 1998. The attorney recalled that appellant told him that he knew he would be found guilty by a jury because of his confession and that he did not want to take a chance on what a jury might do. At the time of their discussions, the attorney believed that appellant understood the range of punishment being open as to both deferred adjudication probation and the possibility of receiving time in the penitentiary.
With respect to appellant's claim that his attorney did not prepare him to testify or for cross-examination, the attorney testified he told appellant to tell the truth. The attorney explained that he and appellant went over the facts of the case, and he told appellant if he told the truth he would not have to worry about cross-examination.
With respect to appellant's claim that he was misinformed about his eligibility for probation and parole, his attorney testified that he explained to appellant he was only eligible for deferred adjudication probation. The attorney explained the deferred adjudication process to appellant. Although appellant claims that his attorney promised or assured him he would receive a probated sentence if he pleaded guilty, his attorney testified that "he never promised that to anybody on an open plea. Even when it's a plea bargain for probation, I tell them the court does not have to accept it." The attorney testified that he thought appellant "had a good opportunity or a good chance of getting deferred adjudication, but it was never guaranteed [to him]." Regarding parole, the attorney testified that he "never makes promises as to when parole would be [granted]."
On appeal from an order overruling a motion for new trial, the appellate court must defer to the trial court's credibility determinations when the evidence at the hearing was conflicting. See Quinn v. State, 958 S.W.2d 395, 401-02 (Tex. Crim. App. 1997); Valdez v. State, 893 S.W.2d 721, 724 (Tex. App.--Austin 1995, pet. ref'd). Based upon the trial court's overruling the motion for new trial, the trial court chose to believe the attorney's version of events related to appellant's pleading guilty and waiving a jury trial. The appellate court must defer to the trial court's determination regarding the attorney's credibility.
Additionally, the record reflects that the trial court properly admonished appellant regarding the range of punishment before accepting the guilty plea. Appellant told the trial judge at the plea proceeding that he was acting freely and voluntarily, and gave no sign he was reluctant to plead guilty.
Appellant did not seek to withdraw his plea at the sentencing proceeding one month later. At the sentencing hearing, appellant testified that he and his attorney discussed that his only possibility for probation was if the trial court granted him deferred adjudication.
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Christopher Alexander Nunez v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-alexander-nunez-v-state-texapp-1999.