Lopez v. State ( 1994 )

OPINION

YÁÑEZ, Justice.

Appellant was indicted on three counts of aggravated robbery and three counts of burglary of a habitation. Appellant pled guilty to one count of aggravated robbery, and the trial court adjudged him guilty. It then ordered a presentence investigation. At a later date, the trial court assessed punishment at 16 years in prison. We abate the appeal.

By point of error three, appellant complains that the trial court erred by admitting into evidence an affidavit of his trial counsel at the hearing on his motion for new trial. Appellant complains that the trial court violated his confrontation rights under the Sixth Amendment to the U.S. Constitution and Article 1, Section 10 of the Texas Constitution by admitting the affidavit. We agree.

The record shows that the Honorable Jesus Rodriguez served as trial counsel to appellant and appellant’s alleged co-defendant, David Meza. Appellant and Meza pleaded guilty and received their sentences at the same guilty-plea and sentencing hearings. The Honorable Mark Alexander represented appellant and Meza on their motions for new trial.

In his motion for new trial, appellant alleged that he was denied effective assistance of counsel at trial because he entered his plea on the advice of counsel who promised him that he would receive probation. During the new-trial hearing, the State offered trial counsel’s affidavit into evidence. Before ruling on its admissibility, the trial court allowed appellant to call trial counsel as a witness. However, trial counsel pleaded the Fifth Amendment in response to appellant’s questions concerning his representation of appellant. Appellant objected to the affidavit on the same grounds he raises on appeal. The trial court overruled the objection and admitted it into evidence. The affidavit stated, in relevant part:

I was retained to represent David Meza and Francisco Javier Lopez on or about October or November of 1992 to represent both of them on Aggravated Robbery and related charges. I met numerous times with both David Meza and Francisco Javier Lopez at the jail Every time I went to the jail to meet with David Meza and Javier Francisco Lopez I would discuss their case with them. I told both David Meza and Javier Francisco Lopez that the State of Texas had witnesses available to testify against each of them. I related to both defendants that I had been meeting with the State’s Prosecuting Attorney numerous times and that we had a choice of going to trial before a jury or judge or pleading to the court. Right before the plea I and the Prosecuting Attorney met with the judge in chambers. The judge made no promises but indicated he was considering 20 years pen time for David Meza and about 16 years pen time for Francisco Javier Lopez. I told both defendant [sic] that they were probably looking at 20 years but the judge could give them less. I never promised them that the judge would give them probation.

The Sixth Amendment to the U.S. Constitution provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” Similarly, Article 1, Section 10 of the Texas Constitution provides in part that “[i]n all criminal prosecutions the accused ... shall be confronted by the witness against him_” The U.S. Supreme Court has stated that the confrontation right includes the right to cross-examine witnesses. Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968).

In Trevino v. State,¹ the Court of Criminal Appeals held that a new-trial hearing is a “critical stage” of the proceedings at which an accused is entitled to representation by counsel under the Sixth Amendment to the U.S. Constitution and Article 1, Section 10 of the Texas Constitution. The court stated that a new-trial hearing is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review. Trevino, 565 S.W.2d at 940. Thus, the importance of the new-trial hearing to both the State and the accused justifies the full panoply of adversary safeguards; that is, counsel, confrontation, cross-examination, and compulsory process for witnesses. See Trevino, 565 S.W.2d at 940.

In this case, trial counsel pleaded the Fifth Amendment in response to appellant’s questions concerning his representation of appellant. Appellant was not able to cross-examine him concerning the statements which he made in his affidavit. We hold that appellant was denied his confrontation rights when the trial court admitted the affidavit into evidence.

We do not find the error harmless. The affidavit supports the trial court’s ruling and therefore we cannot find that it could not have influenced the trial court’s ruling. The record shows that the trial court heard testimony that trial counsel did indeed advise appellant that he would receive probation. Although the trial court properly admonished appellant with respect to the guilty plea, that does not necessarily mean that trial counsel did not make an improper promise and that appellant did not rely on that promise in entering his plea. The promise would have loomed over these proceedings. Once the trial court allowed trial counsel to plead the Fifth Amendment, all testimony from trial counsel, whether oral or written, should have been excluded.

Furthermore, trial counsel was improperly allowed to plead the Fifth Amendment at the new trial hearing. Trial counsel could not reasonably have believed that his testimony could be used against him in a subsequent criminal proceeding. Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975); U.S. v. Sharp, 920 F.2d 1167, 1170 (4th Cir.1990). But, even if trial counsel did properly refuse to answer, the affidavit should have been excluded because of the Fifth Amendment plea. The trial court should have heard live testimony from the trial counsel. We sustain point three.

The cause is abated for reconsideration of appellant’s motion for new trial in accord with this opinion. See generally McIntire v. State, 698 S.W.2d 652, 662 (Tex.Crim.App.1985). If, after hearing, the trial court grants the motion, the trial court should docket the cause for new trial and forward a copy of its order granting new trial to this Court. At that time, we will dismiss the notice of appeal. In the event the trial court denies the motion for new trial, the trial court shall enter a written order denying the motion and forward it, along with a statement of facts from the hearing, to this Court. At that time, the appeal will be reinstated and appellant’s brief will be due 30 days from the reinstatement. If appellant wishes to complain about the trial court’s denial of his motion, it will be necessary for him to file a new appellate brief. The State’s brief will be due twenty-five days after the filing of appellant’s brief.

The appeal is abated.

GILBERTO HINOJOSA, J., dissents.

1 . 565 S.W.2d 938 (Tex.Crim.App.1978).