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State v. Arizmendi

Court of Criminal Appeals of Texas

May 17, 2017

THE STATE OF TEXAS
v.
ROSA ELENA ARIZMENDI, Appellee

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS POTTER COUNTY

          Keller, P.J.

         Appellee pled guilty pursuant to an agreement, but she moved for a new trial after her co-defendant prevailed on a motion to suppress. We conclude that appellee's allegations in the motion for new trial are without merit because her failure to discover the new information was due to her own lack of diligence. Even if appellee had been diligent, we also conclude that the ruling on the motion to suppress was not evidence and that the officer's testimony at the hearing was either cumulative of the video evidence appellee had already seen or collateral because it was not material to the suppression issue in the co-defendant's case. Finally, we conclude that appellee's ineffective assistance allegation was not properly before the trial court because it was not made within thirty days of the judgment and the State objected to it. Consequently, we conclude that the court of appeals erred in upholding the trial court's granting of a new trial.

         I. BACKGROUND

         A. Trial-Level Proceedings

         Appellee and co-defendant Jose Luis Cortez were traveling in a van that was stopped for a traffic violation-driving illegally on the improved shoulder of a highway. As a result of the stop, appellee was ultimately charged with possession with intent to deliver methamphetamine in an amount of more than 400 grams. She entered into an agreement to plead guilty and receive a sentence of twenty-five years' confinement and a $5, 000 fine. She received various admonishments, orally or in writing, and the trial court asked whether she understood them. The trial court also inquired into the voluntariness of her plea, her mental capacity, and whether she was a citizen of the United States. Appellee answered all inquiries in a manner consistent with her plea being voluntary. She also signed a judicial confession, and she signed a section titled, "WAIVER OF APPEAL, et al., " which stated, "The Defendant, in writing and in open Court, and joined by counsel for defendant, waives and gives up the time provided by law in which to file a Motion for New Trial, Motion for Arrest of Judgment, and Notice of Appeal." The trial court accepted the plea agreement and sentenced appellee accordingly. These plea proceedings occurred on April 28, 2015.

         On May 4, 2015, a motion to suppress hearing was held in Cortez's case, and the motion was granted.[1] In its findings of fact, the trial court noted that the only evidence before it was the arresting officer's testimony and the video of the stop. The trial court found that the video showed Cortez's vehicle's "right rear tire (or its shadow) . . . to come in the proximity of and possibly touch the inside portion or more of the white line delineating the roadway from the improved shoulder [the "fog line"] . . . but not to extend past the . . . outermost edge of the fog line."[2] In what is labeled a conclusion of law, the trial court found that Cortez's "vehicle did not cross outside the outermost edge of the fog line onto the improved shoulder of the roadway."[3] The trial court further concluded that "[c]rossing over the portion of the fog line nearest the center of the roadway or upon the fog line is not a violation of Texas traffic law."[4]

         Appellee filed a motion for new trial. The motion alleged that "[t]he verdict in this cause is contrary to the law and the evidence, " and it asked the trial court to grant a new trial in the interests of justice. The motion referred to what happened in Cortez's case-the motion to suppress hearing, the video, and the granting of the motion to suppress-and it alleged that the record and the video "clearly show that the vehicle was stopped without probable cause or other lawful reasons." The motion further contended that "[t]he video evidence does not support the officer's testimony, but rather, it supports that no violation of law was committed by the suspect vehicle." The motion also alleged that the arresting officer's testimony at Cortez's motion to suppress hearing was new evidence that was not available or known at the time appellee pled guilty. The allegedly new evidence in the officer's testimony was that the officer said, "I observed certain things that caught my attention, " and that the things that caught his attention were that appellee's vehicle was a clean van. Appellee's attorney filed an affidavit mirroring these allegations.

         The trial court held a hearing on the motion. Speaking as an officer of the court, appellee's attorney explained that she had reviewed the video before the plea and thought that the stop "was somewhat of a close call" but that a motion to suppress would not be successful. She also stated that she "got sidetracked with other issues" and never told her client that a motion to suppress was an option. She contended that her failure to do so was ineffective, and the State interjected, "I'm going to object to this line; that's not part of this Motion." The trial court allowed defense counsel to continue with her contention that she was ineffective. Defense counsel also tendered the transcript and findings of fact from the hearing on Cortez's motion to suppress.[5]

         The State argued that appellee waived a right to a new trial in the plea papers. The State also argued that appellee had not presented any new evidence that was likely to result in a different ruling. The State pointed out that appellee had access to the video prior to the plea, that the only new evidence appellee was offering was the officer's statement about the vehicle being a clean van, and that the vehicle being a clean van was not the basis for the stop. The State further argued that the trial court's ruling in Cortez's case was incorrect and that the stop was lawful. With respect to the ineffective assistance allegation, the State contended that it was not properly before the court because it was not part of the original motion for new trial and was not otherwise filed within thirty days after judgment.[6] Finally, the State argued that appellee was simply suffering from "buyers' remorse": thinking the plea bargain was a good deal at the time but later finding out that Cortez had obtained a different result.

         With respect to whether appellee waived her right to a new trial, appellee's counsel stated, "I will agree . . . that my client signed the waivers . . . however, a client's waiver of motion for new trial, rights to appeal, all of the waivers that she executed at that time, must be knowing and voluntary . . . And again, without having been advised, there can be no knowing waiver. And I . . . confess that there couldn't have been knowing because of my failure." The State responded that this claim was also barred as untimely.[7]

         The trial court granted appellee's motion for new trial "in the interest of justice, " and the State appealed.

         B. Appeal

         On appeal, the State complained that the trial court abused its discretion in granting the motion for new trial. In support of this contention, the State made four arguments. First, it contended that appellee waived the right to seek a new trial. Second, it contended that appellee failed to meet the legal requirements necessary to obtain relief on the basis of newly discovered evidence. Third, it contended that the ineffective assistance of counsel issue was not properly before the trial court at the time of the motion for new trial hearing. Finally, it contended that appellee failed to offer any evidence that would have allowed the trial court to grant a new trial.

         The court of appeals first held that appellee's written waiver of a new trial did not bar the trial court from granting relief.[8] Relying upon Willis v. State, [9] the court of appeals found this to be so because, by setting a hearing on the motion for new trial, "the trial court implicitly granted [a]ppellee permission to file her motion for new trial notwithstanding her waiver."[10]

         On the merits of the motion, the court of appeals held that appellee had presented new evidence to the trial court because (1) the video of the stop contained no audio, [11] and (2) the testimony at the suppression hearing was new because it did not exist at the time she pled guilty.[12]The court of appeals asserted that, "The chronology demonstrates that the failure to obtain the evidence was not due to a lack of diligence" and the arresting officer's "testimony was not cumulative, corroborative, collateral, or impeaching."[13] Because appellee's case was pending in the same court as her co-defendant's, the court of appeals concluded that the arresting officer's testimony probably would have resulted in a similar ruling if a motion to suppress had been filed in appellee's case.[14] Consequently, the court of appeals found that appellee satisfied the test for granting a new trial on the basis of newly discovered evidence.[15]

         Finally, in light of its disposition of appellee's newly-discovered-evidence claim, the court of appeals declined to determine whether appellee's ineffective assistance claim was properly before the trial court.[16]

         II. ANALYSIS

         The State contends that the court of appeals erred in affirming the trial court's order granting a new trial because appellee "affirmatively waived that right and failed to present a valid legal claim."[17] We will focus on the State's second contention that appellee failed to present a valid legal claim.[18] The State argues that appellee failed to satisfy the requirements for granting a new trial on the basis of newly discovered evidence. The State also argues that appellee's ineffective assistance of counsel claim was untimely and was therefore not a proper basis for granting a new trial.

         A trial court's decision to grant a new trial is reviewed only for abuse of discretion, but that discretion is not unbounded or unfettered.[19] A trial court may not grant a motion for new trial simply because it believes that the defendant has received a raw deal.[20] Granting a new trial for a "non-legal or legally invalid reason is an abuse of discretion."[21] There is generally no abuse of discretion in granting a new trial if the defendant (1) articulated a valid claim in the motion, (2) produced evidence or pointed to record evidence that substantiated his claim, and (3) showed prejudice under applicable harmless error standards.[22]

         The legal claim articulated in appellee's motion for new trial was that she had obtained newly discovered evidence. Article 40.001 of the Code of Criminal Procedure provides, "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial."[23] To obtain relief under this provision, the defendant must satisfy the following four-prong test:

(1)the newly discovered evidence was unknown or unavailable to the defendant at the time of trial;
(2)the defendant's failure to discover or obtain the new evidence was not due to the defendant's lack of due diligence;
(3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring about a different result in a new trial.[24]

         Although appellee's motion for new trial discussed the video of the stop, her attorney stated at the hearing on the motion for new trial that she had reviewed the video before appellee's plea. The video was, therefore, not newly-discovered. Appellee claimed that three things were newly-discovered: (1) the trial court's ruling on the co-defendant's motion to suppress, (2) the testimony of the arresting officer at the co-defendant's suppression hearing, and (3) more specifically, the arresting officer's statement about appellee's vehicle being a clean van.

         We first note that the trial court's ruling on the motion to suppress is not "evidence" in the context of appellee's newly-discovered-evidence claim.[25] It is a legal determination, not a fact relevant to the validity of the arresting officer's conduct. To be sure, the trial court's ruling involved its assessment of the evidence before it, but the ruling itself is not evidence with respect to the suppression issue.

         And even if the suppression ruling were deemed to be evidence, appellee's failure to "discover" this ruling would be a result of her lack of diligence. "[E]very defendant who enters a guilty plea does so with a proverbial roll of the dice."[26] A guilty plea does not violate due process even when the defendant miscalculates the admissibility of important evidence.[27] If appellee wanted to know whether a motion to suppress would be successful, she could have filed and litigated one.[28]

         The testimony of the arresting officer at the suppression hearing is evidence, but with the exception of the testimony about the clean van, appellee and the court of appeals have not explained how that evidence differs from the evidence defense counsel had already seen. Our review of the evidence at the co-defendant's suppression hearing indicates that the arresting officer's testimony was consistent with the video. The arresting officer's testimony, in general, was cumulative, because the appellee's counsel was aware of and had access to evidence (the video) that would convey the same facts with at least the same degree of credibility.[29] In fact, the video was the crucial evidence relied upon by the trial court in deciding that the officer had violated the law.

         The arresting officer's comment about the clean van was not cumulative, but at best, that comment related to the officer's subjective reasons for the stop. The standard for whether a stop is legal is an objective one, and the subjective intent of the officer is irrelevant.[30] The comment about the clean van was, at best, collateral.

         Moreover, appellee could have asked to speak to the arresting officer or could have sought a police report. Even if neither of those requests could be satisfied, she nevertheless could have filed a motion to suppress and obtained the officer's testimony at a suppression hearing-just as her co-defendant did. Consequently, appellee's failure to obtain the officer's testimony at the suppression hearing was due to her lack of diligence.[31]

         Finally, we turn to the State's contention that appellee's ineffective assistance claim was untimely. Although the court of appeals did not resolve this issue, the State argues that we should reach it for the sake of judicial economy. Ordinarily, when we reject a court of appeals's disposition of an issue, we remand the case to that court to address any remaining issues that need to be addressed.[32] But in exceptional situations, when the disposition of the remaining issue is clear, we will sometimes dispose of the case in the name of judicial economy.[33] This is one of those situations.

         A motion for new trial must be filed within thirty days after sentence is imposed or suspended in open court.[34] The motion can be amended at any time during that thirty-day period, but the trial court is barred from considering a ground raised outside the thirty-day period if the State properly objects.[35] Appellee did not raise an ineffective assistance claim in her motion for new trial. That claim was raised for the first time at the hearing on the motion for new trial, and that hearing was conducted outside the thirty-day period. At the hearing, the State objected that the ineffective assistance claim was untimely, and the State was correct.[36] The trial court was barred from considering the ineffective assistance claim.

         We conclude that the court of appeals erred in upholding the trial court's decision to grant the motion for new trial. Consequently, we reverse the judgments of the courts below and remand the case to the trial court with instructions to reinstate the judgment of conviction and the sentence.

          Hervey, J., filed a concurring opinion in which Keasler and Newell, JJ., joined.

         CONCURRING OPINION

         "Buyer's remorse" perhaps, but "calamity of errors" seems more likely.

         Background

         Appellee, Rosa Arizmendi, was convicted of possessing more than 400 grams of methamphetamine with intent to deliver after police stopped the driver of the vehicle in which she was riding. Both Arizmendi and the driver were arrested. On April, 25, 2015, Arizmendi entered a guilty plea. She was sentenced to 25 years' confinement and assessed a $5, 000 fine.

         The case against Arizmendi was set in motion following a traffic stop that was visually recorded but did not contain any audio of the proceedings. This video was available at the time of Arizmendi's trial but was not introduced into evidence. (In fact, no evidence other than her plea and judicial confession were introduced.) The trial court's "certification of her right to appeal" specifies that she could not appeal the trial court's judgment because she entered a guilty plea. However, in another set of preprinted documents there is a written waiver of her right to file a motion for new trial. Thus, conflicting documents exist in the record regarding the appellee's waivers.

         On May 4, 2015, a motion to suppress hearing was held in Arizmendi's co-defendant's (Jose Luis Cortez) case. There, the video of the traffic stop was introduced into evidence, and the arresting officer testified. The trial court granted the co-defendant's motion to suppress, finding no violation of state law to justify the stop.

         On May 15, 2015, Arizmendi filed a motion for new trial and arrest of judgment pursuant to Rule 21.3 and Rule 22.3 of the Texas Rules of Appellate Procedure. Tex.R.App.P. 21.3 (new trials), 22.3 (arrest of judgment in a criminal case). The motion was filed within the 30-day filing period allowed under Rule 21 and 22, and a hearing was held on June 9, 2015, which was well within the 75 days during which the trial court could grant a motion for new trial. Id. 21.8.

         Although this Court's opinion does not directly address the State's argument that Arizmendi waived her right to file a motion for new trial, I make two observations. First, because Arizmendi was not aware of an ineffective-assistance-of-counsel claim until the hearing on the motion for new trial (which I address later), I do not believe that her waiver should be enforceable. In a similar situation, we have held that an applicant's bargained for waiver of any post-conviction habeas claim is unenforceable against a post conviction claim of an involuntary plea when the allegation is that of an involuntary plea. This is because there was "at least a reasonable likelihood that an accused who would have rejected a plea offer and pled not guilty but for the patent incompetence of his lawyers would have declined to waive habeas corpus relief as well." Ex parte Reedy, 282 S.W.3d 492, 500-01 (Tex. Crim. App. 2009). Although this case deals with a motion-for-new-trial waiver and not a post-conviction habeas waiver, I see no reason to apply a different rule. Both cases involved a plea, and in both cases, allegations of an involuntary plea have been made based on ineffective assistance of counsel that was not known at the time of the plea. The only apparent difference is at what point the involuntary-plea claims of ineffective assistance were raised.

         Second, I agree with the reasoning of the court of appeals that the trial court implicitly granted Arizmendi permission to file the motion for new trial when it set the motion for a hearing. In the past, we have held that a "trial court's subsequent handwritten permission to appeal controlled over the appellant's previous written waiver of the right to appeal, " and we noted that, in light of that, the appellant was allowed to appeal despite the boilerplate waiver. Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013). We reasoned that the trial court was in the best position "to determine whether the previously executed waiver of appeal was validly executed and if there was any merit in the appellant's desire to appeal." Id.

Rule 21.3 of the Texas Rules of Appellate Procedure provides that,
The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons:
(a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendant has been unlawfully tried in absentia or has been denied counsel;
(b) when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights;
(c) when the verdict has been decided by lot or in any manner other than a fair expression of the jurors' opinion;
(d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct;
(e) when a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant's innocence has been intentionally destroyed or withheld, thus preventing its production at trial;
(f) when, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result;
(g) when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or
(h) when the verdict is contrary to the law and the evidence.

Tex. R. App. P. 21.3.

         In her motion for new trial, Arizmendi alleged that the verdict in her case was contrary to the law and the evidence[1] and that the trial could should grant a new trial in the interest of justice.

         Calamity of Errors

1. On January 24, 2014, Arizmendi and the driver, Cortez, were stopped by police. After the police found a large quantity of methamphetamine both were arrested and were indicted as co-defendants. They were charged with the same offense and their cases were in the same court, but they were represented by different attorneys on different days.
2. On April 28, 2015, Arizmendi entered a guilty plea and was sentenced. As part of her plea bargain, she did not have the right to appeal her conviction, and she also executed a waiver of appeal. (No "motion for new trial waiver" is in the record.)
3. On May 4, 2015, the trial court held a hearing on Cortez's (Arizmendi's co-defendant) motion to suppress. At that hearing, the recording of the traffic stop was admitted into evidence (although there is no audio). The arresting officer also testified. The trial court granted Cortez's motion, finding that "[t]he defendant was unlawfully stopped and detained; therefore, evidence garnered as a result of the detention is not admissible at trial."
4. Based on the outcome of her co-defendant's motion to suppress, Arizmendi filed a timely motion for new trial, supra, to which an affidavit is attached. In her motion for new trial, Arizmendi argued that the trial court should grant her motion because of "newly discovered evidence." According to her, the testimony of the arresting officer, together with the video of the traffic stop, and the findings of fact and conclusions of law in the Cortez case support her claim that she is entitled to a new trial in the interest of justice.
5. There was no attempt to amend the motion for new trial during the 30-day window.
6. At the motion-for-new-trial hearing, trial counsel offered into evidence a certified copy of the reporter's record and the trial court's findings of fact and conclusions of law from Cortez's case. No witnesses were called, and the recording of the traffic stop was not admitted at the hearing. Additionally, trial counsel admitted her errors, including that she never apprised Arizmendi of her right to file a motion to suppress, that "she got sidetracked with other issues, " that she reviewed the case file only once, that she just "sat back" to wait for the results of laboratory testing, and that she thought the recording of the traffic stop was "a close call" in terms of whether a motion to suppress would have been successful.

         At the hearing on the motion for new trial, Arizmendi's attorney orally appeared to argue that her client's plea was involuntary and was the result of ineffective assistance of counsel on her part, but those claims were not timely raised, nor were they in writing. Though those claims may have had merit, counsel also apparently did not understand the rules governing motions for new trial.

         Bottom Line

         While perhaps sympathetic to Arizmendi's dilemma, the trial court and the court of appeals both found a basis for granting a new trial, that of "new evidence" in the form of the arresting officer's testimony, which was only presented at her co-defendant's hearing on his motion to suppress. Unfortunately, despite the lower courts' apparent sense of injustice, the majority is correct in deciding that Arizmendi could have filed a motion to suppress and could have called the officer to testify. It is also correct to conclude that the officer's testimony at the co-defendant's hearing adds nothing more than the video portrays and that Arizmendi had access to the video before her plea; thus, there is no "new evidence" to support a valid claim, even in the interest of justice. Zalman, 400 S.W.3d at 593 ("A judge may grant or deny a motion for new trial 'in the interest of justice, ' but justice means in accordance with the law[, ]" not based on a belief that the defendant got a raw deal).

         As to other possible grounds for granting a new trial, counsel failed to properly raise them. The majority is therefore correct. I join the majority and I concur in the result.

         The only other possible relief Arizmendi might be able to secure in the future would be in post-conviction proceedings.

          Newell, J., filed a concurring opinion, in which Keasler, Hervey and Yeary, JJ., joined.

         For well over a hundred years, trial judges in Texas have had the authority to grant a new trial, but for the past fourteen, advocates in criminal cases have used the phrase "interest of justice" from our precedent to argue that a new trial is warranted even though there is no legal basis for granting a new trial.[1] This case is a good example of why we should get away from treating "interest of justice" as a justification for relief or a standard of review. The phrase "interest of justice" is better understood as a recognition of a court's authority to act rather than a reason for acting or a standard to evaluate that action. Requesting a new trial "in the interest of justice" provides no guidance to a trial court regarding a basis for relief. And reviewing whether the trial court properly granted a new trial "in the Interest of justice" is invariably answered by resorting to other legal standards and justifications. We should just cut out the middle man and hold that granting a new trial "in the interest of justice" refers to the trial court's power or authority to grant a new trial and not the basis for granting it. Our sister court, the Texas Supreme Court, has already reached this conclusion, and we should follow suit.

         Where Did We Get "In the Interest of Justice"?

         Courts have repeatedly noted the long history of trial courts' exercising their discretion to grant new trials "in the interest of justice." When doing so, courts typically rely upon "oft-quoted language in State v. Gonzalez" that points to the genesis of this phrase.[2]

For more than one hundred and twenty years, our trial judges have had the discretion to grant new trials in the interest of justice. In Mullins v. State, the Supreme Court, which at the time had criminal jurisdiction held: . . . The discretion of the District Court, in granting new trials, is almost the only protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court should ...

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