                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS
 MARCO DIAZ,                                    §
                                                               No. 08-12-00108-CR
                                  Appellant,    §
                                                                  Appeal from the
 v.                                             §
                                                                120th District Court
 THE STATE OF TEXAS,                            §
                                                             of El Paso County, Texas
                                  Appellee.     §
                                                                (TC#20110D02363)
                                                §

                                         OPINION

        Appellant Marco Diaz, appeals the trial court’s denial of his motion to withdraw his

guilty plea.   We affirm.

                                       BACKGROUND

        On December 8, 2011, Appellant pleaded guilty to the charged offense of indecency with

a child pursuant to a plea agreement with the State. The trial court adhered to the State’s

recommended sentence of eight years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. At the plea hearing, the trial court asked Appellant if he

needed an interpreter and defense counsel, Tati Santiesteban, responded that Appellant did not.

Appellant verbally responded in English to the questions posed to him during the remainder of

the hearing. The trial court admonished Appellant regarding his rights to trial by jury, to

assistance of counsel, to confront and cross-examine witnesses, and to remain silent.   Appellant
testified that he had read and understood the plea papers bearing his signature.

       Santiesteban stated that he had explained the plea papers to Appellant and had no doubt

that Appellant understood the admonishments, rights and consequences of entering his guilty

plea. Appellant testified that he was satisfied with Santiesteban’s representation, that he is a

Mexican national, and that he understood he would be deported, could be denied U.S. citizenship

in the future, or face other immigration-related consequences by pleading guilty.         Appellant

proceeded to enter his plea of guilty and testified that he did so freely and voluntarily.

Appellant also testified that he understood the terms of the plea agreement that he would serve

eight years’ confinement and would be required to register as a sex offender.       The trial court

pronounced judgment in accordance with the terms of the plea agreement.

       Less than a month later, on January 5, 2012, Appellant filed a motion to withdraw his

guilty plea.   On January 31, 2012, the trial court heard the motion at which Edward Hernandez

represented Appellant.   Appellant argued he did not enter his guilty plea voluntarily because he

had relied on the erroneous advice of Santiesteban, who Appellant claims rendered ineffective

assistance. Appellant’s mother, Amelia Diaz, testified Santiesteban told her that Appellant had

to plead guilty or he would be sentenced to twenty years’ confinement.      On cross-examination,

Ms. Diaz admitted that Appellant’s trial counsel did not lie to her and that Appellant pleaded

guilty to the same terms his trial counsel told her Appellant would plead to.        Ms. Diaz also

testified that she was present at the plea hearing when Appellant responded to the trial court’s

questions in English, and stated that Appellant speaks a little English, and reads English.

       Santiesteban testified that he told Appellant he did not have to plead guilty and had a

right to proceed to trial.   Santiesteban stated that Appellant had been facing a maximum


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sentence of ten years’ confinement, and explained that Appellant did not want to go to trial but

wished to plead guilty in order to receive six years’ confinement. The District Attorney’s

Office would not agree to a sentence of six years’ confinement. The State offered Appellant a

plea agreement of eight years’ confinement, which Appellant ultimately accepted in order to

avoid trial.   Santiesteban denied ever telling either Appellant or Appellant’s mother that

Appellant would be sentenced to twenty years if he did not plead guilty.          Santiesteban testified

that Appellant never told him that he wanted to go to trial or that he was willing to plead nolo

contendre in exchange for being deported immediately without confinement.                   Santiesteban

explained that he had represented Appellant multiple times in the past, including three or four

additional cases involving Appellant’s pleas of guilty.             Santiesteban stated that he and

Appellant have communicated in both English and Spanish, although usually in English. On

the day of the plea hearing, Santiesteban asked Appellant if he wanted an interpreter, and

Appellant responded that he did not. Santiesteban also testified that he and Appellant reviewed

all of the plea papers, which he explained to Appellant in Spanish prior to the plea hearing.

        Appellant offered into evidence four letters he dictated in Spanish to a fellow inmate in

the county jail, who translated and wrote them down in English.           Appellant signed and mailed

each letter to the trial court and the court clerk certified then filed each letter in the court’s file of

Appellant’s case. The letters suggested Appellant disagreed with his trial counsel and did not

enter his plea voluntarily because he wanted to plead guilty or no contest in order to be deported

immediately without serving time in prison.          The State objected that the letters constituted

hearsay and lacked proper authentication. The trial court admitted the letters, noting that they

went to the weight and not the truth of the matter, and observed that Appellant’s statements in


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the dictated letters are not necessarily true.

        Appellant testified that he moved to the U.S. from Mexico when he was in the third grade

and speaks and understands a little English. Appellant claimed he wanted an interpreter at the

plea hearing but Santiesteban told him he did not need one and to answer the questions as

Santiesteban instructed him. Appellant testified he pleaded guilty because Santiesteban told

him he would be deported immediately if he did so, and would not have to serve the eight years’

confinement, and informed Appellant that if he did not plead guilty, the judge would be mad at

him and impose a twenty-year sentence.           Appellant claimed Santiesteban gave him the answers

to the trial court’s questions at the plea hearing, and the trial court failed to notice his answers

were directed. Appellant admitted he has pleaded guilty at least six times in the past, asserted

that he had interpreters at each of the other pleas, and stated that his attorneys always handled the

hearings.

        The trial court took the issue under advisement.        On February 23, 2012, the trial court

found Appellant had knowingly and voluntarily entered his guilty plea and Santiesteban’s

representation of Appellant was not deficient, and entered an order denying Appellant’s motion

to withdraw his plea.    Appellant raises three issues on appeal.

                                            DISCUSSION

                                      Voluntariness of the Plea

        In two issues, Appellant challenges the voluntariness of his plea and argues the trial court

abused its discretion when it denied his request to withdraw his plea on that basis.

                                         Standard of Review

        A court shall not accept a plea of guilty unless the defendant enters the plea freely and


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voluntarily.    TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West 2009).             The record must

affirmatively establish that a defendant entered his guilty plea knowingly and voluntarily.

Fuller v. State, 253 S.W.3d 220, 229 (Tex.Crim.App. 2008).            When a trial court properly

admonishes a defendant before he enters a plea of guilty, the admonishments constitute a prima

facie showing the plea was both knowing and voluntary.         Martinez v. State, 981 S.W.2d 195,

197 (Tex.Crim.App. 1998); Fielding v. State, 266 S.W.3d 627, 636 (Tex. App.—El Paso 2008,

pet. ref’d).   The burden then shifts to the defendant to show his plea was entered without an

understanding of its consequences and, because of it, he has suffered harm.          Martinez, 981

S.W.2d at 197.      A defendant who attests during the plea hearing that his plea is voluntary bears

a heavy burden to prove he entered the plea involuntarily at a subsequent hearing.        Fielding,

266 S.W.3d at 636.       In determining the voluntariness of a plea we consider the record as a

whole. Martinez, 981 S.W.2d at 197.

          Before the court has pronounced the judgment or taken the case under advisement, a

defendant may change his plea from guilty to not guilty as a matter of right without assigning

reason.     See Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979); DeVary v. State, 615

S.W.2d 739, 740 (Tex.Crim.App. 1981).           See also Mendez v. State, 138 S.W.3d 334, 345

(Tex.Crim.App. 2004).       When a defendant wishes to withdraw his guilty plea after the trial

court has pronounced judgment or taken the case under advisement, the withdrawal is within the

sound discretion of the trial court.     Jackson, 590 S.W.2d at 515; Hernandez v. State, 885

S.W.2d 597, 602 (Tex. App.—El Paso 1994, no pet.).

          The trial court has broad discretion when determining the credibility of the witnesses and

weighing the evidence before it.      See Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App.


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2001). An abuse of discretion occurs when a trial court acts in an unreasonable and arbitrary

manner, or without reference to any guiding rules or principles.    Ramirez v. State, 973 S.W.2d

388, 391 (Tex. App.—El Paso 1998, no pet.).      A trial court does not abuse its discretion when

its decision falls within the zone of reasonable disagreement.   Hernandez v. State, 390 S.W.3d

310, 324 (Tex.Crim.App. 2012), cert. denied, 134 S.Ct. 823, 187 L.Ed.2d 685 (2013).

                                           Interpreter

       In Issue One, Appellant asserts the trial court erred in denying his request to withdraw his

plea because he could not have entered the plea voluntarily without an interpreter present at the

plea hearing.   We disagree.     The Confrontation Clause of the Sixth Amendment guarantees a

criminal defendant the right to have the trial proceedings translated into a language he

understands.    Garcia v. State, 149 S.W.3d 135, 140 (Tex.Crim.App. 2004). This right may be

waived. Id. at 143.     The fact that a defendant is more fluent in another language does not

necessitate a translator if the defendant demonstrates an ability to understand and speak English.

See Linton v. State, 275 S.W.3d 493, 502 (Tex.Crim.App. 2009); Flores v. State, 299 S.W.3d

843, 855 n.3 (Tex. App.—El Paso 2009, pet. ref’d).        However, if a trial court is aware the

defendant does not speak or understand English, an interpreter must be provided to translate the

proceedings for the defendant.    Baltierra v. State, 586 S.W.2d 553, 559 (Tex.Crim.App. 1979);

Garcia, 149 S.W.3d at 143.

       In support of Issue One, Appellant asserts he demonstrated he was a Spanish speaker by

his use of an interpreter at the hearing on his motion to withdraw. Appellant complains that it

was Santiesteban who answered the trial court and stated Appellant did not need a translator.

Appellant notes that he sent letters to the court which were transcribed into English by someone


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else after he dictated his statements in Spanish.

       The State directs us to numerous facts in the plea record and evidence from the motion

hearing indicating that Appellant demonstrated an ability to understand and speak English,

understood the plea papers, and understood the proceedings at the plea hearing, arguing that

Appellant’s plea was voluntarily entered.

       Although the evidence regarding Appellant’s translation needs and the plea discussion

between Appellant and Santiesteban are in conflict, it was within the trial court’s role as fact

finder to ascertain the credibility and weight of each witness’s testimony.       See Salazar, 38

S.W.3d at 148.    An appellant bears a heavy burden to overcome the presumption that he entered

his plea voluntarily and understood the plea hearing proceedings.   Fielding, 266 S.W.3d at 636.

       A trial court is not required to appoint an interpreter over a defendant’s assertion he does

not require one, unless the trial court knows the defendant does not speak or understand English.

Garcia, 149 S.W.3d at 143; Baltierra, 586 S.W.2d at 559. Here, Appellant asserted through

Santiesteban that he did not require an interpreter, then, proceeded to respond appropriately to

the trial court’s questions during the remainder of the hearing.     Although Appellant may be

more fluent in Spanish than English, the record indicates he demonstrated an ability to

understand and speak English at the plea hearing which was corroborated by the testimony of

Santiesteban and Appellant’s mother at the motions hearing.    Linton, 275 S.W.3d at 502.

       We conclude the trial court did not abuse its discretion in determining that Appellant

knowingly and voluntarily waived his rights to confrontation and cross-examination when he

pleaded guilty.   See Jackson, 590 S.W.2d at 515. Because the trial court did not err, Issue One

is overruled.


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                               Erroneous Advice of Trial Counsel

       In Issue Two, Appellant claims the trial court erred in determining his plea was entered

voluntarily when he pleaded guilty because his trial counsel told him to enter the plea.       In

support of this contention Appellant directs us to the pre-plea letter he sent the trial court in

which he claims he would like to plead no contest and receive probation and be immediately

deported and found the State’s plea offer to serve jail time unacceptable.   At the hearing on his

motion to withdraw, Appellant testified he only pleaded guilty because Santiesteban told him to

and he mistakenly believed he would be deported immediately without having to serve his

confinement sentence.     Appellant then cites two cases which contradict his position because

both the defendants’ pleas were deemed voluntary despite alleged erroneous advice of trial

counsel.    See Ex parte Tomlinson, 295 S.W.3d 412, 419 (Tex. App.—Corpus Christi 2009, no

pet.) (allegation defendant was advised to lie about guilt in order to obtain plea bargain was

insufficient to render the plea involuntary because defendant was aware of consequences of plea

and failed to show he would have not pleaded guilty but for the erroneous advice); see also

Anderson v. State, 746 N.W.2d 901, 908 (Minn. Ct. App. 2008) (erroneous advice to plead guilty

does not prejudice a defendant whose desired outcome was to plead guilty).      Appellant asserts

the trial court erred in denying his motion to withdraw in spite of established case law to the

contrary.

       The State responds by noting that Appellant fails to elaborate and explain how

Santiesteban told him to plead guilty or why that made his plea involuntary.          At the plea

hearing, Appellant was properly admonished, and he testified he was entering his guilty plea

freely and voluntarily.    At the hearing on the motion to withdraw, Santiesteban disputed


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Appellant’s assertion that he had provided any erroneous advice and testified that Appellant

never expressed a desire to forego a guilty plea and proceed to trial.

       The trial court’s admonishment of Appellant at the plea hearing creates a prima facie

showing that his plea was entered into voluntarily.    Martinez, 981 S.W.2d at 197; Fielding, 266

S.W.3d at 636. Appellant’s evidence in support of his assertion that his plea was involuntarily

made based on erroneous advice of counsel does not meet the heavy burden he bears to show he

did not understand the consequences of the plea.      Martinez, 981 S.W.2d at 197; Fielding, 266

S.W.3d at 636.    In fact, the case he cites to, Ex parte Tomlinson, supports our determination that

Appellant understood the consequences of his plea, and even if his trial counsel told him to plead

guilty, he was not prejudiced because he still wished to plead either guilty or no contest in order

to avoid trial as referenced both in his letter to the court and during his testimony at the motion to

withdraw plea hearing.      Ex parte Tomlinson, 295 S.W.3d at 419.         Because the trial court did

not abuse its discretion by determining Appellant’s plea was entered voluntarily and denying

Appellant’s request to withdraw his plea, Issue Two is overruled.        Jackson, 590 S.W.2d at 515.

                                 Ineffective Assistance of Counsel

       In Issue Three, Appellant asserts he received ineffective assistance of counsel when his

trial counsel failed to secure an interpreter at the plea hearing and as a result, his plea was not

voluntary.   We disagree.

                                        Standard of Review

       A guilty plea is involuntary if made as a result of ineffective assistance of counsel.      Ex

parte Moussazadeh, 361 S.W.3d 684, 689 (Tex.Crim.App. 2012) (habeas corpus applicant was

entitled to relief when he received ineffective assistance of counsel in entering his guilty plea).


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When claiming his plea is involuntary based on ineffective assistance of counsel, Appellant must

establish that: (1) defense counsel’s performance fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that, but for counsel’s ineffectiveness, the

result of the proceeding would have been different.       Strickland v. Washington, 466 U.S. 668,

687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Moussazadeh, 361 S.W.3d at 691.

The different result required in the context of an involuntary plea would be choosing not to plead

guilty in order to proceed to trial.   Ex parte Moussazadeh, 361 S.W.3d at 691.

         The claimant bears the burden of establishing both prongs of the Strickland test by a

preponderance of the evidence.         Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.Crim.App.

2011).     Failure to meet the burden for either prong defeats the ineffectiveness claim.

Strickland, 466 U.S. at 697.     Our review of the actions taken by counsel is highly deferential

and carries a strong presumption that counsel’s conduct was not deficient.     Strickland, 466 U.S.

at 689; see Ex parte Moussazadeh, 361 S.W.3d at 691.        To prevail, a defendant must overcome

the presumption that, under the circumstances, counsel’s conduct fell within an objective

standard of reasonable professional norms. See Strickland, 466 U.S. at 689; Ex parte

Moussazadeh, 361 S.W.3d at 691.

                                               Analysis

         Appellant claims his trial counsel was deficient by failing to determine that Appellant

could not read the plea papers in English or that he needed an interpreter at the plea hearing to

fully comprehend the consequences of his guilty plea. He contends his use of an interpreter at

the hearing on the motion to withdraw established that he was a Spanish speaker, and that

Santiesteban, rather than Appellant, answered at the plea hearing that he did not need an


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interpreter.   Furthermore, Appellant again relies on the letters he sent to the trial court from jail

which were written in English by another person after Appellant dictated the words in Spanish.

        The State again notes that Santiesteban testified he communicated with Appellant

multiple times during this and past representations in both English and Spanish, although usually

in English and Appellant told Santiesteban he did not need an interpreter at the plea hearing and

Appellant communicated in English with the trial court during the plea hearing, answering all of

the questions directed to him appropriately.

        Although conflicting testimony exists regarding Appellant’s English language ability,

Appellant has not established by a preponderance of the evidence that Santiesteban acted

unreasonably by not requesting an interpreter at the plea hearing or not determining that

Appellant could not read English.     See Ex parte Martinez, 330 S.W.3d at 901; see also Ex parte

Moussazadeh, 361 S.W.3d at 691.        Appellant’s failure to affirmatively establish trial counsel’s

deficient performance defeats his claim of ineffective assistance of counsel, and we need not

address the reasonable probability of a different outcome.     Strickland, 466 U.S. at 697; Ex parte

Moussazadeh, 361 S.W.3d at 691.        Issue Three is overruled.

                                          CONCLUSION

        The trial court’s judgment is affirmed.


                                               GUADALUPE RIVERA, Justice
July 11, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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