                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00324-CR

JOSE OCTAVIO DIAZ,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 14-00936-CRF-361


                          MEMORANDUM OPINION


       In one issue, appellant, Jose Octavio Diaz, challenges his convictions for one count

of evading arrest with a motor vehicle and three counts of child endangerment. See TEX.

PENAL CODE ANN. § 22.041(c) (West 2011); see also id. § 38.04(b)(2)(A) (West Supp. 2015).

Specifically, appellant argues that the trial court erred in failing to sua sponte withdraw

his guilty pleas and enter pleas of “not guilty” when he presented evidence of his

innocence during the punishment phase of trial. We affirm.
                                        I.     BACKGROUND

        In the instant case, appellant was charged by indictment with one count of evading

arrest with a motor vehicle and three counts of child endangerment pertaining to a high-

speed chase that occurred on December 13, 2013. See id. §§ 22.041(c), 38.04(b)(2)(A). This

case eventually proceeded to trial.

        After several witnesses testified, appellant entered a plea of guilty to each of the

four charged offenses. Appellant admitted that he knew he was waiving his right to a

jury trial as to the guilt-innocence phase and that he was entering his pleas freely and

voluntarily. In addition, appellant made judicial confessions to the offenses and pleaded

“true” to the deadly-weapon enhancement corresponding with the evading-arrest-with-

a-motor–vehicle count.

        The trial court subsequently brought the jury back into the courtroom, went

through a colloquy with appellant regarding his guilty pleas, and provided the jury with

the following instructions:

        Ladies and gentlemen, that means basically we’re now finished with the
        first phase of the trial and we’re going to go into the second phase of the
        trial, the punishment phase. You will be instructed when you get your
        instructions on deliberations for the punishment phase of the trial to find
        the defendant guilty of all four counts and find the allegation as it relates to
        the deadly weapon in Count One to be true.

Thereafter, the punishment phase of trial began.




Diaz v. State                                                                              Page 2
        During the punishment phase, several witnesses, including appellant, testified.

On appeal, appellant characterizes his testimony during the punishment phase as

demonstrating his innocence as to each count. In any event, the trial court later read the

jury charge, which included the following instructions:

        Members of the jury, the defendant, Jose Diaz, has been charged with the
        offenses of evading arrest with a vehicle, a third-degree felony, as well as
        three counts of endangering a child, each a State jail felony . . . .

               The defendant has pled to these charges and true to the allegation of
        the use of a deadly weapon as alleged in Count One.

                He has persisted in entering his pleas of guilty and true as charged,
        notwithstanding that the Court, as required by law, has admonished him
        of the consequences. It plainly appearing to the Court that the defendant is
        mentally competent, and that he makes these pleas freely and voluntarily,
        his pleas have been received by the Court.

               You are instructed to find the defendant guilty as charged in the
        indictment and determine his punishment in accordance with the following
        instructions.

The trial court then read the remainder of the charge that defined the punishment ranges

for each offense, among other things.

        At the conclusion of the punishment phase, the jury accepted appellant’s guilty

pleas, found the deadly-weapon allegation to be true, and assessed punishment at nine

years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice for the evading-arrest-with-a-vehicle count and two years’ incarceration for each

endangering-a-child count. The imposed sentences were ordered to run concurrently.



Diaz v. State                                                                           Page 3
Later, the trial court certified appellant’s right of appeal, specifically noting:        “this

criminal case . . . is not a plea-bargain case as to punishment, and the defendant has the

right of appeal on punishment only.” The references to punishment in the certification

were handwritten by the trial judge. This appeal followed.

                                        II.     JURISDICTION

        At the outset, we note that appellant does not challenge the punishment

assessments on appeal; instead, he focuses on what appear to be guilt-innocence issues,

despite the language of the trial court’s certification limiting his appeal “on punishment

only.” Texas Rule of Appellate Procedure 25.2(a)(2) provides:

        A defendant in a criminal case has the right of appeal under Code of
        Criminal Procedure 44.02 and these rules. The trial court shall enter a
        certification of the defendant’s right of appeal each time it enters a
        judgment of guilt or other appealable order. In a plea bargain case—that is,
        a case in which a defendant’s plea was guilty or nolo contendere and the
        punishment did not exceed the punishment recommended by the
        prosecutor and agreed to by the defendant—a defendant may appeal only:

            (A) those matters that were raised by written motion filed and ruled on
                before trial, or

            (B) after getting the trial court’s permission to appeal.

TEX. R. APP. P. 25.2(a)(2) (emphasis added). The limitation of a defendant’s right to an

appeal as stated in Rule 25.2(a)(2) expressly applies to a “plea bargain case[.]” See id.;

Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); see also Solis-Caseres v. State, No.

09-13-00580-CR, 2015 Tex. App. LEXIS 2046, at *20 (Tex. App.—Beaumont Mar. 4, 2015,



Diaz v. State                                                                            Page 4
no pet.) (mem. op., not designated for publication). Here, the record clearly demonstrates

that appellant did not plead guilty to the charged offenses pursuant to a plea-bargain

agreement or in exchange for the State recommending a sentence. Accordingly, nothing

in Rule 25.2(a)(2) limits appellant’s right of appeal. See TEX. R. APP. P. 25.2(a)(2); see also

Solis-Caseres, 2015 Tex. App. LEXIS 2046, at *20; but see Cash v. State, Nos. 14-12-00718-CR,

14-12-00719-CR, 14-12-00728-CR, 2013 Tex. App. LEXIS 9393, at **5-6 (Tex. App.—

Houston [14th Dist.] July 30, 2013, pet. ref’d) (mem. op. on reh’g, not designated for

publication) (“Presuming, without deciding, that the trial court gave appellant

permission to appeal as to assessment of punishment, the trial court did not give

appellant permission to appeal as to non-punishment issues.               Appellant has not

challenged the trial court’s assessment of punishment. In these two appeals, appellant

challenges only the sufficiency of the evidence supporting the trial court’s determination

of guilt. Appellant has validly waived his right to appeal the trial court’s determination

of guilt in these two cases. Accordingly, we dismiss for want of jurisdiction . . . .”).

Therefore, we will address the merits of appellant’s appellate issue.

                                III.    APPELLANT’S GUILTY PLEAS

        In his sole issue on appeal, appellant contends that the trial court erred in failing

to sua sponte withdraw his guilty pleas and enter pleas of “not guilty” when he presented

evidence of innocence, through his own testimony, during the punishment phase of trial.




Diaz v. State                                                                            Page 5
        A trial court has no duty to sua sponte withdraw a defendant’s guilty plea absent

a timely request to do so, even if evidence is presented that reasonably and fairly raises

an issue as to his guilt. See Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004).

Specifically, in Mendez, the Court of Criminal Appeals noted:

        We think that the rule was better stated in Taylor when we spoke in terms
        of the familiar rule that a defendant has the right to withdraw a plea of
        guilty (or nolo contendere) in a timely fashion, whether the trial be with or
        without a jury. The procedures involved are different. As we have said, a
        defendant’s decision to plead guilty entails the waiver of some important,
        constitutional rights. These are “waivable-only” rights, in Marin’s
        taxonomy. It is fitting that trial courts have a duty to implement those
        rights, which shield each defendant at the outset of every criminal
        proceeding. But after a court has fulfilled those duties and a defendant has
        made a valid waiver of those rights, it is appropriate that the defendant be
        required to take some affirmative action to don the armor again. The
        number of cases in which defendants want to “unwaive” their right to plead
        not guilty is small, the appearance of evidence that is inconsistent with guilt
        is unpredictable, the significance of such evidence should be more apparent
        to the defense than to the trial court, and cases are common in which there
        is some evidence in the defendant’s favor but the defendant . . . had validly
        chosen to plead guilty after weighing the advantage of such a plea against
        the chance of acquittal.

                ....

        It is reasonable to put on such a defendant the requirement of timely
        seeking, in one way or another, to withdraw the plea of guilty. The
        appellant not having done so, he may not complain for the first time on
        appeal that the trial court did not do it for him.

Id.; see Sims v. State, 326 S.W.3d 707, 713 (Tex. App.—Texarkana 2010, pet. dism’d); see also

Kinley v. State, No. 07-11-00135-CR, 2012 Tex. App. LEXIS 8402, at **4-5 (Tex. App.—

Amarillo Oct. 4, 2012, no pet.) (mem. op., not designated for publication) (citing Perez v.


Diaz v. State                                                                             Page 6
State, 07-10-0390-CR, 2012 Tex. App. LEXIS 3218, at **3-4 (Tex. App.—Amarillo Apr. 24,

2012, no pet.) (mem. op., not designated for publication)); Sanchez v. State, Nos. 05-10-

00292-CR, 05-10-00293-CR, 2011 Tex. App. LEXIS 4357, at *9 (Tex. App.—Dallas June 9,

2011, no pet.) (mem. op., not designated for publication) (“But while a defendant has a

right to timely request to change his plea of guilty to not guilty, the trial court has no duty

to conduct some special proceeding or to sua sponte withdraw a guilty plea when

evidence inconsistent with guilt is introduced.”).

        Here, appellant did not timely request that the trial court withdraw his guilty plea.

In fact, he first raises this contention on appeal. As such, we conclude that appellant has

forfeited his right to complain on appeal that the trial court should have sua sponte

withdrawn his guilty plea. See Mendez, 138 S.W.3d at 350; Williams v. State, 10 S.W.3d 788,

789 (Tex. App.—Waco 2000, pet. ref’d) (concluding that appellant failed to preserve a

complaint that the trial court did not sua sponte withdraw his guilty plea because

appellant failed to properly preserve the issue “by objection, request, or in a timely

presented motion for new trial”); Sims, 326 S.W.3d at 713; see also Kinley, 2012 Tex. App.

LEXIS 8402, at **4-5; Sanchez, 2011 Tex. App. LEXIS 4357, at *9.

        Despite the foregoing, appellant also contends that he “was not provided the

means to move to withdraw his plea by motion for new trial.” Specifically, he argues that

he was denied the right to counsel during a critical phase of the proceeding—the thirty-

day window for filing a motion for new trial.


Diaz v. State                                                                            Page 7
        The Clerk’s Record reveals that the trial court signed its judgment on the evading-

arrest-with-a-vehicle count on September 22, 2015. The trial court signed its judgments

on the child-endangerment counts on October 15, 2015. Appellant’s trial counsel filed a

notice of appeal and motion to withdraw on September 25, 2015. The trial court granted

trial counsel’s motion to withdraw and appointed appellate counsel on October 23, 2015.

In other words, the record reflects that appellant was represented by counsel at all critical

stages of the proceedings. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j) (West Supp. 2015)

(providing that an appointed attorney must represent the defendant until the “charges

are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is

permitted or ordered by the court to withdraw as counsel for the defendant after a finding

of good cause is entered on the record”); see Johnson v. State, 352 S.W.3d 224, 228-29 (Tex.

App.—14th Dist.] 2011, pet. ref’d); see also In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim.

App. 2008) (noting that until a motion to withdraw is granted, counsel still represents his

or her client). We therefore reject appellant’s contention that he “was not provided the

means to move to withdraw his plea by motion for new trial.” And based on the

foregoing, we overrule appellant’s sole issue on appeal.

                                       IV.    CONCLUSION

        We affirm the judgment of the trial court.




Diaz v. State                                                                          Page 8
                                              AL SCOGGINS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 24, 2016
Do not publish
[CR25]




Diaz v. State                                               Page 9
