Reyes v. State

1

RAYMOND DIEGO REYES, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-23-00125-CR

Court of Appeals of Texas, Eighth District, El Paso

January 25, 2024

Do Not Publish

Appeal from the 218th Judicial District Court of Atascosa County Texas (TC#21-02-0083-CRA)

Before Alley, C.J., Palafox, and Soto, JJ.

MEMORANDUM OPINION

JEFF ALLEY, Chief Justice

Appellant Raymond Diego Reyes pled guilty to intoxication manslaughter and intoxication assault and was sentenced to concurrent 16 and 10-year prison terms. Tex. Pen. Code Ann §§49.07(c); 49.08(b). He appeals his conviction arguing that his plea was involuntary because his attorney provided ineffective assistance of counsel.^[1] For the reasons stated below, we affirm.

Factual and Procedural Background

On the night of August 13, 2020, Philip Smith rear-ended a tractor trailer that was pulling into a gas station off Highway 16 in Atascosa County. The accident disabled Smith's vehicle and it remained in the road. Danielle Gonzalez, a nurse who happened to be driving by, stopped to help Smith. Moments later, Appellant collided with Smith's vehicle. The impact threw Smith into the median, causing fatal injuries, and severely injured Gonzalez. Law enforcement arrived on the scene and while investigating, asked Appellant to complete a field sobriety test, which he refused, saying that he is blind in one eye. At the hospital later that night, Appellant' blood work showed a blood alcohol level of .074 as well as the presence of cocaine and opiates.

Appellant was indicted and charged with intoxication manslaughter and intoxication assault. The indictment further alleges that "the defendant used a deadly weapon, to wit: a motor vehicle, during the commission of the offense."

Appellant entered an open plea. He pled guilty to both counts with no agreement with the State for punishment. Appellant judicially confessed to committing both offenses "exactly as charged within the indictment" and pled "true" to enhancement and special issues in the indictment. Appellant, his attorney, and the State signed "Agreed Punishment Recommendations" which state, "The parties agree to ask the court to asses[s] punishment anywhere within the full range of punishment, and in consideration for this agreement, the parties agree to waive their right to a jury trial and the right to appeal any judgment by the court." At the plea hearing, the trial court admonished Appellant that the intoxication manslaughter and intoxication assault charges were each punishable by up to 10 years in prison.^[2] The trial court accepted Appellant' plea but did not make a deadly weapon finding and reset the case for a sentencing hearing so that a presentence investigation could be conducted.

Although there was no plea agreement or punishment recommendation, the trial court signed an order stating:

After having agreed to assess punishment consistent with the plea agreement, the Court hereby finds that the Defendant understands the consequences of waiving the right to a motion for new trial, motion in arrest of judgment or file a notice of appeal . . . . The Defendant voluntarily, knowingly and intelligently waived such right. Said waiver is accepted by the Court.

That same day, the trial court also signed a certification of Appellant' right of appeal which stated that Appellant' case was not a plea-bargain case and that he has the right to appeal the sentence.

In February 2023, the trial court held a sentencing hearing. Along with testimony from the probation department about the presentence investigation, the court also heard testimony about how the accident impacted the lives or families' lives of Philip Smith and Danielle Gonzalez. Kayla Jordan-Tschirhart, Philip Smith's widow, was 31 years old when Smith was killed. She and Smith had children and Smith also had three older children from a prior relationship. Tschirart testified about how her life has changed and the difficulties her children have now, and will continue to have, coping with the loss of their father. Philip Smith was the sole-provider for the family and Kayla described her financial struggles following Smith's death.

Danielle Gonzalez was 27 years old at the time of the accident and has two children. Before the accident, Gonzalez was independent and physically active, but now must rely on others for many basic life functions. Her injuries impaired her vision and she cannot use the right side of her body. She lost the ability to walk. She struggles with memory and depression. Before the accident she was employed as nurse, but can no longer perform gainful employment.

Appellant also testified at the sentencing hearing. He claims that it was dark at the time of the accident and he did not see Smith's vehicle until he hit it. He also admitted, however, that about an hour before the collision he drank two or three beers and ingested cocaine and marijuana. He was questioned about his criminal history, which included two prior terms of probation-in 1993 for assault and in 2004 for possession of marijuana. Both probations led to revocations. In closing, Appellant' counsel requested that the court give him community service.

After the hearing, the trial court made a finding that Appellant used a deadly weapon in commission of the crimes and sentenced him to 16 years for intoxication manslaughter and 10 years for intoxication assault, with the terms to run concurrently.

In his one issue on appeal, Appellant claims that his trial counsel provided ineffective assistance of counsel and his guilty plea was therefore involuntary. Specifically, Appellant contends that his attorney requested that the court order community service, but because of the deadly weapon finding, community service "could never have been granted."

Analysis

A. Waiver of right to appeal

The State argues that Appellant waived his right to appeal. Because a valid waiver of the right to appeal deprives us of subject-matter jurisdiction, we address this issue first. Thomas v. State, 615 S.W.3d 552, 563 (Tex. App.-Houston [1st Dist.] 2020, no pet.).

Texas law grants criminal defendants the right to appeal. Tex. Code Crim. Proc. Ann. art. 44.02; Tex. R. App. Proc. 25.2. That right can be waived, but the waiver must be made "voluntarily, knowingly, and intelligently." Tex. Code Crim. Proc. Ann. art. 1.14; Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim. App. 2006). When a defendant waives his right to appeal as part of a plea bargain that includes a sentencing recommendation, the waiver is made with the knowledge of what the consequences will be and is therefore valid.^[3] Id. at 799; Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000) (en banc). But in open plea cases like this one, when a criminal defendant pleads guilty without an agreement about sentencing, "the validity of a pretrial waiver of appeal is in question because the waiver cannot be knowing and intelligent when potential errors cannot be anticipated and the consequences of the waiver are unknown." Delaney, 207 S.W.3d at 798. For these kinds of appeal waivers to be valid, the State must provide consideration for the waiver. Compare Jones v. State, 488 S.W.3d 801, 804 (Tex. Crim. App. 2016) (defendant's waiver of appeal was valid because the State provided consideration by abandoning one of its enhancement paragraphs), with Washington v. State, 363 S.W.3d 589, 590 (Tex. Crim. App. 2012) (per curiam) (defendant's waiver of appeal was not valid because the record did not reflect that the State gave any consideration).

The State argues that by waiving its right to a trial by jury, or consenting to Appellant' waiver of a jury trial, it provided consideration. But, Carson v. State, cited by the State for this proposition actually holds that "[c]onsent to proceed to a bench trial, thus waiving the right to a jury trial, by itself is not sufficient to qualify as consideration for defendant's waiver of his right to appeal." Carson v. State, 559 S.W.3d 489, 494 (Tex. Crim. App. 2018) (emphasis added). The record must reflect that the State's waiver of a jury trial was given "in exchange for" the defendant's appeal waiver. Id.

For example, in Ex Parte Broadway, the defendant pled guilty but did not want a jury to determine his sentence because only a court could place him on community supervision with drug treatment. Ex parte Broadway, 301 S.W.3d 694, 696 (Tex. Crim. App. 2009) (en banc). But the record showed that the State wanted sentencing by a jury and would only consent to the defendant's waiver of a jury trial if the defendant also waived his right to appeal. Id. at 698. The court held that because his appeal waiver resulted from a bargain, it was valid. Id. at 697-98. Similarly, in Carson v. State, the defendant did not want a jury trial because he believed that he could receive a more favorable sentence from the trial court. Carson, 559 S.W.3d at 495. And the State's position was, "if we're going to have to do an appeal and everything then we might as well go to a jury trial." Id. Therefore, for the defendant to get sentencing by the trial court, he agreed to waive his right to appeal. Id. The court held that the defendant "negotiated a bargain" and his "waiver was made in exchange for consideration given by the State and, thus was voluntary, knowing and intelligent." Id. at 496.

Unlike Broadway and Carson, the record here does not show that the State wanted a jury trial and that it would only agree to forgo one if Appellant agreed to waive an appeal. At the plea hearing, Appellant agreed that he waived the right to appeal, but there was no testimony or other evidence that he did so because of the State's waiver of the right to a jury trial. The only mention of the waiver of a jury trial at the plea...