## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-92,798-01

EX P ARTE GONZ ALO NUNCIO G ONZA LEZ, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2018-2123-C1A IN THE 19T H DISTRICT COURT

F ROM MC LENNAN COUNTY

Per curiam . O R D E R Applicant pleade d g uilty to one count of assau l t ag ainst a public serva nt and one count of possession of a controlled substance, and was sentenc ed to five y ear s’ imprisonment for eac h count, to run concur

rently

. He did not appea l his conviction. Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district cler k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. On J uly 28, 2021, this Court rema nded this matter to the trial court t o al low that court to complete its evidentiar

y investiga tion and make finding s of fac t and conclusions of law. On Aug ust 26, 2021, this Court rec eived the supplemental rec ord including the trial court’s finding s of fac t and conclusions of law. Ho wever, the supplemental rec ord is still not sufficie nt to fully addre ssApplicant’s c laims.

Applicant alleg es that the State withheld materia l, favor able evidenc e from the defe nse, and that had the State proper ly and timely disclosed the evidenc e, he would not have pleade d g uilty but would have insisted on g oing t o t ri al on the char g es. Specifica lly , Applicant ref ers to video

rec ording s from the dash cams and body cams of the arr esting office rs, which the defe nse reque sted

m u l t i p l e t i m es prior to trial but was tol d did not exis t. Some of t hose recording s wer e eventually provided by the State pursuant to a public information reque st filed by Applicant’s habea s counsel. Acc ording to Applicant, he consistently mai n t ai n ed that he did not assault the arr esting office rs, but was only

try ing to e vade a

rre st or detention. Applicant a lleg es that trial counse l told him that if he went to trial on the char g es, counsel co u l d argue to the jury that the lack of video evidenc e was "suspicious" but tha t the jury would have to de termine whe ther to believe Applicant

or the office rs. Applicant all ege s t h at trial counsel advised him that a jury would be unlikely to believe his story and dis believe the office rs. Applicant eve ntually pleade d g uilty to possession of

a controlled substance and assault of a public serva nt in exchang e for concur

rent five-y ear sentenc es. Acc ording to the State’s response , Appli ca n t 's d ecision to plead g uilty to these two char g es also meant that the State would not pursue char ges of possession with intent to deliver controlled substance, possession of marijuana , forg ery and evading arr est. Howeve r , the plea documents ref lect that only the char g e of evading arr est or detention was taken into acc ount in sentenc ing. Applicant contends that the other char g es wer e not pursued either beca use of a lack of evidenc e, or beca use they wer e re fer

red to fe dera l authorities who dec lined to prosecute

. The State conce des that the video rec ording s should have been but wer e not provided to the defe nse prior to the plea, but arg ues that the evidenc e contained on the rec ording s is not materia l and would not likely have chang ed the outcome of the proce eding s. Although the video rec ording s donot show the moment when Applicant was tackled by police and alleg edly struck t h em, the

rec ording s do contain variou s s t at ements by the police office rs that are inconsistent with the statements made in the police repor t, with reg ard to whether Applicant actua lly hit any of the office rs and whether the office rs’ injuries wer e cause d by contac t with the road when they tackled Applicant,

or by Applicant himself. The videos also sug g est that another man who was prese nt when Applicant

was approa ched by police, J ohnny O’Ne al, may have witnessed the events. The videos also show that an unidentified man approa ched the scene just befor e Applicant fled from the office rs, and may also have witnessed the e vents. Although trial counsel submit t ed an affidavit in connec tion with Applicant’s habea s application, in which he confirme d that the videos wer e reque sted but not provided to the defe nse, trial counsel’s aff

idavit does not detail the investiga tion he perf o rm ed o r the advice he g ave to Applicant with reg ard to pleadi n g gu i l t y or g oing to trial on the char g es. More importantly , trial counsel’s aff

idavit does not indicate whether he has watche d the newly -disclosed videos, and whe t h er an y ad vice he provided to Applicant would have been differ ent had the videos been disclosed to the def

ense pr ior to the plea. Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant’s cl ai m s . S pecif ically , trial counsel shall state what steps he took to i n v es t i gate the offe nses, and whether he was awa re of and interviewe d any potential witness es , specific ally including J ohnny O’Ne al. Trial counsel shall state what advice , if any , he provided to Applicant with reg ard to pleading g uilty or g oing to trial on the char g es, and as to what Applicant’s chanc es of suc cess a t trial might be. Tr ial counsel shall state whether his advice w ould have be en differ ent had he seen the video rec ording s rec ently disclosed by the State befor e Applicant enter edhis plea, and whether he would have used the rec ording s to attempt to neg otiate a plea to a differ ent

offe nse, rather t h an assault on a publi c servant. Trial counsel shall state whether the State ag ree d not to pursue the addi t i o n al char g es of possession with intent to deliver a controlled substance, possession of marijuana , and forg ery in exchang e for Applicant’s plea to these two counts, and if so, whether that ag ree ment is ref lected in writing

. I f the State did not ag ree not to pursue the additional char g es as a condition of t he plea ag ree ment, trial counsel shall state whe t h er he believed that the State could prove any or all of the additional char g es, and whether a plea to or conviction for any of the additional char g es would have car ried the same immigra tion conseque nces as Applicant’s plea to assault of a public se rvant. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts to h o l d a h earing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and want s t o be represe nted by counsel, the trial court shall appoint counsel to repr esent at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or reta ined, the trial c ourt shall immediately notify this Court of counsel’s name

. The trial co u rt shall make findings of fac t and conclusions of l aw as to whether Applicant would have pleade d g uilty to assault of a public serva nt but for the State’s failure to timely disclose the video rec ording s. The trial court m ay make any other finding s and conclusions that it deems appropr iate in re sponse to Applicant’s c laims. The trial court shall make findings of fac t and concl u s i o ns of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque stedby

the trial cour

t and obtained f

rom this Court.

Filed: De cembe r 8, 2021 Do not publish