Diaz Hernandez, Jose De Jesus AKA Diaz, Jose

• Court: Court of Criminal Appeals of Texas
• Decided: February 7, 2024
• Docket: WR-95,281-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-95,281-01

EX PARTE JOSE DIAZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-98-980863-A IN THE 167TH DISTRICT COURT FROM TRAVIS COUNTY

Per curiam. YEARY, J., filed a dissenting opinion in which KEEL, J., joined. KELLER, P.J., and SLAUGHTER, J., dissented.

OPINION

Applicant pleaded guilty to a state jail felony possession of a controlled substance and was

sentenced to six months in the Travis County Correctional Center. Applicant filed this application

for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this

Court. See TEX. CODE CRIM. PROC. art. 11.07.

Applicant contends that his plea was involuntary because trial counsel failed to inform him

of the Travis County drug diversion program or attempt to negotiate for Applicant’s placement in

the program. Applicant qualified for placement in the drug diversion program, and successful

completion would have resulted in the dismissal of the charge. Applicant states that he would have 2

accepted placement in the diversion program if he had known about this option. Based on the record,

the trial court has determined that trial counsel’s performance was deficient and that, but for

counsel’s deficient performance, Applicant would not have accepted a plea bargain that resulted in

a felony conviction.

Relief is granted. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781

(Tex. Crim. App. 2013). The judgment in cause number 0980863 in the 167th District Court of

Travis County is set aside, and Applicant is remanded to the custody of the Sheriff of Travis County

to answer the charges as set out in the indictment. The trial court shall issue any necessary bench

warrant within ten days from the date of this Court’s mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and the Board of Pardons and Paroles.

Delivered: February 7, 2024 Do not publish