Gonzalez, Noel, PD-1237-15

Background

Noel Gonzalez pleaded guilty pursuant to a plea agreement to multiple counts of aggravated sexual assault of a child; the trial court assessed the agreed 12-year sentence and certified that Gonzalez waived his right to appeal.
After conviction Gonzalez changed counsel and filed a motion for new trial alleging his plea was invalid because his plea-lawyer instructed him to lie to the judge about a lifelong history of mental illness and hospitalizations.
At the motion-for-new-trial hearing Gonzalez’s mother testified to the defendant’s long history of mental problems; Gonzalez testified his prior lawyer told him to deny those problems at the plea hearing. The State did not call the plea lawyer to rebut that allegation.
Gonzalez timely filed a notice of appeal, but the Thirteenth Court of Appeals dismissed the appeal based on the trial-court certification that he waived appellate rights under Rule 25.2(a)(2).
New appellate counsel filed a brief and a motion asking the Court of Appeals to use its plenary authority to reinstate the dismissed appeal (relying on Bomar). The Court of Appeals denied reinstatement, concluding the certification was controlling and dismissal required.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a court of appeals may exercise plenary power to reinstate an appeal dismissed for failure to file a brief when counsel claims a timely-prepared brief was not actually filed	Gonzalez: the court should reinstate under its plenary power (citing Bomar and Midkiff) so the merits can be considered	State/Thirteenth Ct. of Appeals: trial-court certification that waiver occurred controls under Rule 25.2; dismissal is required when certification shows no right to appeal	Court of Appeals: dismissed the appeal and denied the motion to reinstate; held Rule 25.2 and existing certification mandated dismissal
Whether the record is sufficiently "tainted by perjury" (alleged counsel-instigated perjury) to require remand/investigation or a new trial	Gonzalez: plea was involuntary or affected by perjured plea-stage testimony at counsel’s direction; because the State did not call the plea lawyer, the record is tainted and requires investigation/remand/new trial	State: contends certification and plea-agreement rules bar appellate review of voluntariness except in narrow, preserved circumstances	Court of Appeals: did not reach or grant relief on the perjury claim; dismissed appeal based on lack of appellate right under the plea certification
Whether allegations that counsel induced perjury remove the usual rule that a defendant cannot profit from his own misconduct	Gonzalez: if perjury was at counsel’s urging, the misconduct is attributable to an officer of the court and the plea record is untrustworthy	State: relies on procedural bar and lack of preserved, cognizable appellate issue under the plea agreement	Court of Appeals: did not address this equitable/taint argument because it concluded it lacked jurisdiction to review under Rule 25.2
Whether the Court of Criminal Appeals should grant discretionary review to resolve conflict among appellate courts on reinstatement/plenary power	Gonzalez: asks Court of Criminal Appeals to grant review to decide whether the Thirteenth Court erred in refusing to reinstate and to remand for investigation of alleged perjury	State: argued dismissal was proper and procedural rules control	Result below: Court of Appeals denied reinstatement; Gonzalez petitioned for discretionary review (outcome of PDR not contained in record excerpt)

Key Cases Cited

Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1 (1961) (court remanded where allegations of perjury left administrative record "tainted" and untrustworthy)
Bomar v. Walls Reg’l Hosp., 971 S.W.2d 670 (Tex. App.—Waco 1998) (court exercised plenary authority to reinstate an appeal despite procedural default)
Midkiff v. Hancock E. Tex. Sanitation, Inc., 996 S.W.2d 414 (Tex. App.—Beaumont 1999) (discusses appellate plenary power and reinstatement principles)
Ex parte Sledge, 391 S.W.3d 104 (Tex. Crim. App. 2013) (noting limits on post-judgment relief when jurisdictional constraints apply)
Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) (addressing availability of relief where trial record is challenged)
Chavez v. State, 183 S.W.3d 675 (Tex. Crim. App. 2006) (Rule 25.2 limits appeals by defendants who plead guilty pursuant to plea agreements)
Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001) (Rule 25.2 bars appeals challenging voluntariness of plea in plea-bargain cases)
Escochea v. State, 139 S.W.3d 67 (Tex. App.—Corpus Christi 2004) (following Rule 25.2 limits on appellate review after plea agreement)