Gonzales v. State4/7/1999
on pre-trial motions.
In Texas, a defendant in a criminal case is entitled to reasonably effective assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). The test for ineffective assistance of counsel requires that the defendant demonstrate the following: (1) that his counsel's representation was so deficient, in that counsel committed such serious errors that he was not functioning effectively as counsel; and (2) that the deficient performance prejudiced the defense to a degree that defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
The Strickland standard has been adopted by Texas for resolving allegations of ineffective assistance of counsel under the state and federal constitutions. Hernandez v. State, 726 S.W.2d 53, 56-7 (Tex. Crim. App. 1986). Whether the Strickland standard has been met is Judged by the totality of the representation rather than by isolated acts or omissions of trial counsel, and the test is applied at the time of trial, and not through hindsight. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). The convicted defendant bears the burden of proving ineffective assistance by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App.1985). On review, a strong presumption exists that defense counsel's conduct was reasonable. Strickland, 466 U.S. at 689.
The two-pronged test of Strickland applies to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App.1987). Generally, a guilty plea entered without a plea bargain waives all non-jurisdictional defects made prior to the plea. Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App. 1995); Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994). However, this rule does not apply where the plea is not voluntarily and knowingly made. Morales v. State, 910 S.W.2d 642, 645 (Tex. App.-Beaumont 1995, pet. ref'd). A defendant's election to plead guilty based on the erroneous advice of counsel is not made voluntarily. Abu-Ein v. State, 921 S.W.2d 807, 808 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd); see Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim App. 1991). In addition to showing that counsel was ineffective, appellant must show that his counsel's performance fell below an objective standard of reasonableness and that there was a reasonable probability that, but for counsel's errors, he would not have entered his plea and would have insisted on going to trial. Hill, 474 U.S. at 59; Pool, 738 S.W.2d at 286.
Gonzales was charged with intoxication assault. Under Texas law, intoxication assault is an offense " . . . if a person, by accident or mistake, while operating an aircraft, watercraft, or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another." Tex. Penal Code Ann. § 49.07 (Vernon 1994). At the hearing on defendant's motion for new trial, Gonzales testified that his trial counsel did not explain to him the burden of proof, the significance of the breath analyzer tests, and reasonable doubt.
During oral argument of the present case, new counsel for Gonzales argued that trial counsel was ineffective based on the failure to communicate to Gonzales that the State would have to connect intoxication and accident or mistake. We disagree. Trial counsel correctly communicated the elements of intoxication assault and the burden which the State would have to prove to establish the offense of intoxication assault. At the hearing, Gonzales testified that he had told his attorney he had been drinking before the accident. He also testif
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