ACCEPTED 04-14-00809-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/7/2015 3:28:32 PM KEITH HOTTLE CLERK
NO. 04-14-00809-CR
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS IN THE 4/7/2015 3:28:32 PM FOURTH COURT OF APPEALS KEITH E. HOTTLE OF TEXAS Clerk AT SAN ANTONIO, TEXAS
Ex parte GEORGE GARCIA, Appellant
Trial Court No. 2000CR5603W Appeal from 144th District Court of Bexar County, Texas Hon. Andrew W. Carruthers, Judge Presiding
BRIEF IN SUPPORT OF MOTION TO WITHDRAW
RICHARD B. DULANY, JR. Texas Bar No. 06196400 Appellate Attorney Bexar County Public Defender 101 W. Nueva St., Suite 310 San Antonio, Texas 78205 ORAL ARGUMENT WAIVED (210) 335-0701 FAX (210) 335-0707 richard.dulany@bexar.org
ATTORNEY FOR APPELLANT Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.1(a), the parties are:
THE APPELLANT: GEORGE GARCIA c/o Laura Garcia 507 Viendo Street San Antonio, TX 78201
THE APPELLANT’S ATTORNEYS: For the underlying plea-entry hearing: Carlos Lopez (State Bar No. 12562950) Castle Hills Building 1100 N.W. Loop 410, Suite 102 San Antonio, TX 78213
For the Writ Application and related hearings: Shannon Salmon-Haas 202 E. Locust San Antonio, TX 78212
On Appeal: Richard B. Dulany, Jr. (State Bar No. 06196400) Appellate Attorney Bexar County Public Defender’s Office 101 W. Nueva St., Ste. 310 San Antonio, TX 78205
THE STATE’S ATTORNEYS: For the plea-entry hearing: John (last name unreadable) Assistant District Attorney Paul Elizondo Tower 101 W. Nueva, Fourth Floor San Antonio, TX 78205
For the Writ Application and related hearings: Joshua Sandoval (State Bar No. 24079891) Assistant District Attorney ii Paul Elizondo Tower 101 W. Nueva, Fourth Floor San Antonio, TX 78205
On Appeal: Nicholas LaHood, Bexar County District Attorney (and his appellate section) Bexar County District Attorney’s Office Appellate Division 101 W. Nueva St., Ste. 710 San Antonio, TX 78205
THE TRIAL COURT: For the underlying plea-entry hearing: Hon. Pat Priest, (now Senior District Judge) c/o Criminal District Court Administration Paul Elizondo Tower 101 W. Nueva St., Suite 301 San Antonio, TX 78205
For the Writ Application and related hearings: Hon. Andrew W. Carruthers Criminal Law Magistrate Cadena-Reeves Justice Center 300 Dolorosa, Second Floor San Antonio, TX 78205
iii Table of Contents
Page
Identity of Parties and Counsel ............................................................................. ii-iii Table of Contents ......................................................................................................iv Table of Authorities .............................................................................................. v-vi A Note on Record References................................................................................. vii Certificate of Compliance ....................................................................................... vii Statement of the Case............................................................................................. 1-2 No Meritorious Issues Presented for Review ............................................................ 2 Pursuant to Anders v. California, 386 U.S. 738 (1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel for Appellant has diligently searched the record and upon researching all applicable law has determined that this appeal is without merit and frivolous.
Summary of Facts .................................................................................................. 3-8 Summary of the Argument.........................................................................................8 Summary of the Facts Pertinent to Anders v. California ........................................... 9 Argument and Authorities.................................................................................. 10-16 Conclusion ......................................................................................................... 16-17 Prayer .......................................................................................................................18 Certificate of Service ...............................................................................................19 Appendix ..................................................................................................................20
iv Table of Authorities
Cases
Anders v. California, 386 U.S. 738 (1967) ...................................................... passim
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) ...................................15
Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013)
..............................................................................................................................12
Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013) ..................12
Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011) ............................10
Ex parte Luna, 401 S.W.3d 329, 334 (Tex. App.–Houston [14th Dist.] 2013, no
pet.) .......................................................................................................................13
Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) ..........................13
Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983)............................14
Ex parte Roldan, 418 S.W.3d 143,146 (Tex. App. –Houston [14th Dist.] 2013, no
pet.) .......................................................................................................................13
Ex parte Sudhakar, 406 S.W.3d 699, 702 (Tex. App.–Houston [14th Dist.] 2013,
pet. ref’d) ..............................................................................................................13
Ex parte Villanueva, 250 S.W.3d 391, 397 (Tex. Crim. App. 2008) ......................10
Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987).......................................15
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ................................10
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) ............................14
v Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ................................15
High v. State, 537 S.W.2d 807 (Tex.Crim.App. 1978).................................. iv, 2, 17
Johnson v. United States, 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966) ........................16
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) .........................................17
McMahon v. State, 528 S.W.2d 771, 772 (Tex. Crim. App. 1975) .........................17
Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) passim
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) ...........................15
State v. Guerrero, 400 S.W.3d 576, 582 (Tex. Crim. App. 2013) ................... 10, 12
State v. Jimenez, 987 S.W.2d 886, 887–88 (Tex. Crim. App. 1999).......................13
Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986) .........................14
Statutes
TEX. CRIM. PROC. ANN. art. 11.072 (West 2005).................................................2, 10
vi A Note on Record References
The reporter’s record is one volume, from the hearing on the application for
writ of habeas corpus. Reference to the reporter’s record will be: (RR at ___ ). The
clerk’s record is one volume, plus two supplemental volumes. Reference to the
main volume of the clerk’s record will be: (CR at ___ ). The first supplemental
clerk’s record was filed on January 23, 2015. Reference to it is: (SCR at ___ ).
The findings of fact and conclusions of law were filed as a second supplemental
clerk’s record on March 10, 2015. Reference to it will be: (FFCL at ___ ).
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(B), the word count, from the
beginning of the Summary of Facts until, but excluding, the signature block, is:
3,508. The total word count is 5,117.
vii TO THE FOURTH COURT OF APPEALS OF TEXAS:
The undersigned attorney submits this brief in support of his motion to
withdraw. This is an appeal from Appellant’s writ application seeking to withdraw
his no contest plea (entered on November 3, 2000) on grounds that it was
involuntary because plea counsel allegedly failed to inform him of the immigration
consequences of his plea. After an evidentiary hearing, the trial court denied the
relief sought. Appellant now appeals from the trial court’s ruling denying relief.
Statement of the Case
The Appellant, George Garcia, waived indictment and consented in writing
to be charged by information with possession of cocaine in an amount less than
one gram or more, a State Jail felony. (CR at 6, 8). The information alleged that the
offense was committed on or about June 17, 2000. (CR at 8). On November 3,
2000, Appellant entered a negotiated no-contest plea to the charged offense. (CR at
14-16, 19). The trial court, the Honorable Pat Priest presiding, followed the terms
of the plea agreement, deferred adjudication of guilt, and placed Appellant on
community supervision for two years. (CR at 16, 30-36). The term of community
supervision began on December 7, 2000. (CR at 30). The clerk’s record reflects
that Appellant’s term of deferred-adjudication probation was terminated
“unsatisfactorily” on December 17, 2002, because he was “[d]eported on 2-16-
01[,]” and also owed $1,812.25 in unpaid fines and fees. (CR at 37).
1 On July 25, 2014, Appellant filed an application for writ of habeas corpus
seeking to withdraw his no-contest plea on grounds that his plea counsel rendered
ineffective assistance because he allegedly failed to advise Appellant that he would
be deported as a result of the plea. (CR at 39-45). The writ application was filed
under Article 11.072 of the Code of Criminal Procedure. TEX. CRIM. PROC. ANN.
art. 11.072 (West 2005). The trial court referred the matter to the criminal law
magistrate. (CR at 38). An evidentiary hearing was held on October 23, 2014, and
the relief sought was denied. (RR at 1, 41)(SCR at 3).
On November 20, 2014, Appellant timely filed a notice of appeal from the
denial of habeas relief. (CR at 47). On February 11, 2015, the trial court appointed
the Bexar County Public Defender’s Office to represent Appellant on appeal. The
trial court subsequently filed written Findings of Fact and Conclusions of Law.
This appeal follows.
No Meritorious Issues Present for Review
In compliance with the requirements of Anders v. California, 386 U.S. 738
(1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), the
undersigned, court-appointed attorney states that he has diligently reviewed the
entire record in this cause and the law applicable thereto, and, in his opinion, has
determined that this appeal is wholly frivolous and without merit in that the record
2 reflects no reversible error, and no issues for review upon which an appeal may be
predicated.
Summary of Facts
More than fourteen years ago, George Garcia, the Appellant, was charged
with possession of cocaine in an amount less than one gram or more, a State Jail
felony. (CR at 6, 8). He waived indictment and consented in writing to be charged
by information. The information alleged that the offense was committed on or
about June 17, 2000. (CR at 8). On November 3, 2000, Appellant entered a
negotiated no-contest plea to the charged offense. (CR at 14-16, 19). The plea
paperwork, which Appellant signed, includes an admonishment that Appellant
understood that he could be deported as a consequence of his no-contest plea. (CR
at 14). The trial court, the Honorable Pat Priest presiding, followed the terms of the
plea agreement, deferred adjudication of guilt, and placed Appellant on community
supervision for two years. (CR at 16, 30-36).
The term of community supervision began on December 7, 2000. (CR at 30).
Condition Number 38 of the “Terms and Conditions of Community Supervision”
required Appellant to “…immediately leave the United States of America either
voluntarily or be deported by Constituted Legal Authority.” (CR at 35). That
condition also prohibited Appellant from illegally re-entering the United States.
(CR at 35). The clerk’s record reflects that Appellant’s term of deferred-
3 adjudication probation was terminated “unsatisfactorily” on December 17, 2002,
because he was “[d]eported on 2-16-01” and also owed $1,812.25 in unpaid fines
and fees. (CR at 37).
Almost fourteen years later, on July 25, 2014, Appellant filed an Application
for Writ of Habeas Corpus seeking to withdraw his no-contest plea. (CR at 39). In
his writ application, he states that his plea attorney told him that his no-contest plea
“would not negatively affect his immigration status.” (CR at 40). Through counsel,
Appellant also claims that he “was completely unaware that he would be deported
as a result of the plea.” (CR at 40). Appellant thus asserts that his plea was not
voluntary because he received ineffective assistance from his plea counsel. (CR at
44). But in his writ application, Appellant concedes that the trial court judge gave
him the following admonishment at sentencing, on December 7, 2000: “These
circumstances, as you were sworn when you entered your plea, are such that you
are probably now going to be deported by the U.S. government.” (CR at 40).
Appellant states that he was, in fact, taken into “INS custody” immediately after
sentencing. (CR at 40).
The writ application was referred to the Criminal Law Magistrate, the
Honorable Andrew W. Carruthers, for an evidentiary hearing. (CR at 38). That
hearing was held on October 23, 2014. (RR at 1). Laura Ramirez was Appellant’s
first witness. Ramirez explained that she was formerly married to Appellant, for 20
4 years, and has known him for 26 years. (RR at 6). She was surprised that Appellant
was taken into custody after the sentencing hearing, on December 7, 2000. (RR at
8). She thought he had a deal for probation and would be back home that evening.
(RR at 8). Ramirez believed Appellant didn’t know he was going to be deported.
She said he would have made appropriate arrangements with her to care for their
children and house if he knew he couldn’t come back home after his court
appearance. (RR at 9-10). Ramirez also said that Appellant’s plea attorney advised
him that he wouldn’t have any immigration problems. (RR at 12). Ramirez herself
said she became aware of the immigration consequences of Appellant’s no-contest
plea only after she and Appellant hired an immigration attorney, a year or two after
he was deported. (RR at 14).
On cross examination, Ramirez conceded that she never talked with
Appellant’s plea attorney and was not present when Appellant met with him. (RR
at 20-21). She did not know what that attorney actually told Appellant. (RR at 21).
She was also not present when Appellant entered his no-contest plea. (RR at 21).
The Appellant, George Garcia, was the only other witness to testify at the
hearing. (RR at 24). He testified through an interpreter. (RR at 24). Appellant said
that in 2000, he hired attorney Carlos Lopez to represent him on his drug
possession case. (RR at 25). Appellant told Lopez that he was a Legal Permanent
Resident and was concerned about being deported. (RR at 25). Appellant claimed
5 that Lopez told him that “everything was going to be fine.” (RR at 26). But at the
“final court date,” which was presumably the sentencing held on December 7,
2000, Appellant again asked Lopez if he would have immigration “problems.”
Lopez said, “I don’t know.” (RR at 26). According to Appellant, the judge then
told him he had 24 hours to leave the United States. (RR at 26). Right after the
sentencing hearing, probation officers also told him that he had to leave the
country. Appellant said he was arrested by the immigration officer that same day,
as he was leaving the probation office. (RR at 26).
Appellant said he did not know that he had a right to have a jury trial. (RR at
28). He testified that he “would have fought my case” if he had known that he was
going to be deported. (RR at 28). He did not believe his plea was voluntary
because he didn’t know the consequences of his plea and “…didn’t have
knowledge of the law….” (RR at 29). When asked if he reads and writes English,
Appellant answered, “Very little. Almost none.” (RR at 29).
On cross examination, Appellant claimed that he did not remember the
admonitions that the judge gave him before accepting his plea. (RR at 32).
Appellant said, “[e]verything was very fast in the courtroom.” (RR at 32). He was
assisted by an interpreter. (RR at 32). Appellant said he understood everything that
was translated for him, but claimed he never heard that he could have a jury. (RR
at 33). He didn’t remember if anyone told him that he could have a jury trial, but
6 insisted he would have “gone to trial” if he knew that were an option. (RR at 34).
Appellant said that the judge at his plea told him “like two or three times” that he
had to leave the United States in 24 hours. (RR at 35). But Appellant entered his
plea anyway because his attorney told him he would “have probation.” (RR at 35).
The trial court took judicial notice of the written admonishments contained
in the court’s file. (RR at 37). The trial court specifically noted that admonishment
number seven said that Appellant could be deported as a result of his plea. (RR at
37). The trial court also noted that Appellant signed the admonishment. (RR at 37-
38).
Appellant’s writ counsel argued that plea counsel was unconstitutionally
ineffective because he failed to inform Appellant of the consequences of his plea.
(RR at 39). The prosecutor countered that Appellant was properly admonished
regarding the possible effects the plea would have because of his status as a non-
citizen. (RR at 40). Even if Appellant’s attorney failed to advise him properly, he
was advised properly by the judge. (RR at 41). The trial court denied the relief
sought. (RR at 41).
The trial court subsequently entered written Findings of Fact and
Conclusions of Law. (FFCL at 3-5). The trial court noted that Appellant was
admonished in writing that he could be deported as a result of his plea, and noted
that Appellant signed the admonitions. (FFCL at 3-4). Under the “Conclusions of
7 Law,” the trial court correctly notes that Appellant had the burden of proving the
allegations in his writ application by a preponderance of the evidence. (FFCL at 4).
The trial court also found that Appellant’s conviction “was final before Padilla 1
was decided.” Because the Padilla holding is not retroactive, Appellant is not
entitled to relief on grounds that his attorney was deficient in informing him of the
immigration consequences of his plea. (FFCL at 4). The trial court found that
Appellant was properly advised of the immigration consequences of his plea under
Article 26.13 of the Code of Criminal Procedure. (FFCL at 4). The trial court
concluded that “…there was no Trial Court error that caused Applicant [Appellant]
to render an involuntary plea.” (RR at 5).
The trial court certified that Appellant has the right of appeal. (SCR at 4).
Appellant timely filed a notice of appeal on November 20, 2014. (CR at 47). The
trial court appointed the Bexar County Public Defender’s Office to represent
Appellant on appeal. This appeal follows.
Summary of the Argument
In the professional opinion of the undersigned counsel for Appellant, after a
diligent search of the record and of the applicable law, there is no reversible error
reflected in the record. Therefore, this appeal is without merit and frivolous.
1 Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). 8 Summary of Facts Pertinent to Anders v. California
In his writ application, Appellant has attempted to bring a Padilla-type claim
that his no contest plea––entered in 2000––was involuntary. Specifically, he argues
that he should be allowed to withdraw his plea because he was never told by his
attorney that deportation was a certain consequence. But Padilla was decided in
2010 and is not applied retroactively. Instead, the record reflects (and the trial court
so found) that Appellant was properly admonished regarding the immigration
consequences of his plea under the law as it existed in 2000, when he entered his
plea. Appellant did not prove his claim that his no-contest plea was involuntary by
a preponderance of the evidence. So the trial court did not abuse its discretion in
denying the relief Appellant sought via his writ application. In short, undersigned
counsel can find no meritorious issues to raise on Appellant’s behalf. As such, this
appeal is frivolous and without merit.
9 Argument and Authorities
The standard of review.
Appellant filed his writ application under Article 11.072 of the Code of
Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2005). Article
11.072 is “the exclusive means by which the district courts may exercise their
original habeas jurisdiction under Article V, Section 8, of the Texas Constitution in
cases involving an individual who is either serving a term of community
supervision or who has completed a term of community supervision.” State v.
Guerrero, 400 S.W.3d 576, 582 (Tex. Crim. App. 2013) (quoting Ex parte
Villanueva, 250 S.W.3d 391, 397 (Tex. Crim. App. 2008)). To prevail, the
applicant must prove, by a preponderance of the evidence, the facts that would
entitle him to relief. Guerrero, 400 S.W.3d at 583.
The trial court’s denial of habeas relief is reviewed for an abuse of
discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011). In an
Article 11.072 habeas proceeding, the trial judge is the sole finder of fact.
Guerrero, 400 S.W.3d at 583. The highly deferential Guzman standard of review
controls in such cases. Ex parte Garcia, 353 S.W.3d at 787–88, citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).Under this standard, the appellate
court affords almost total deference to a trial court's factual findings when
10 supported by the record, especially when those findings are based upon credibility
and demeanor. Guzman, 955 S.W.2d at 89.
The Padilla-type claim.
In Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment
requires an attorney representing a criminal defendant to advise his client of the
risk of “automatic” deportation as a consequence of a guilty plea. Padilla, 559 U.S.
368-69, 130 S.Ct. at 1483 (counsel provided ineffective assistance of counsel when
immigration law was succinct and clear that defendant would be subject to
automatic deportation upon entry of guilty plea, statute was not difficult to read
and understand, and counsel's advice concerning possibility of deportation was
incorrect). In his writ application, Appellant makes a Padilla-type claim.
Specifically, he argues that his plea attorney failed to inform him that his no-
contest plea would lead to his deportation. According to Appellant, his plea
counsel told him that his no-contest plea “would not negatively affect his
immigration status.” (CR at 40). As a result of this allegedly deficient advice,
Appellant claims that he “was completely unaware that he would be deported as a
result of the plea.” (CR at 40). He was, in fact, taken into “INS custody”
immediately after sentencing. (CR at 40). He thus alleges that his no-contest plea
was not voluntary because he received ineffective assistance from his plea counsel.
(CR at 44).
11 The rule announced in Padilla v. Kentucky does not apply retroactively.
Appellant entered his no-contest plea on November 3, 2000, and was
sentenced on December 7, 2000. (CR at 14-16, 19, 30). In Chaidez v. United
States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the United States
Supreme Court explicitly held that Padilla announced a new rule and, thus does
not apply retroactively to defendants whose cases became final prior to the date the
Padilla decision was announced, on March 31, 2010. The Texas Court of Criminal
Appeals has adopted the retroactivity analysis in Chaidez as a matter of state law.
Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013) (following
the Supreme Court’s reasoning in Chaidez v. United States, that the Padilla court
announced a new rule, so defendants whose convictions became final prior to
Padilla cannot benefit from its holding). So Appellant may not rely on Padilla in
arguing that he was denied the effective assistance of counsel when he entered his
no-contest plea in November 2000. 2
Pre-Padilla law.
Under pre-Padilla law, the Sixth Amendment’s assurance of the effective
assistance of counsel does not extend to “collateral” aspects of the prosecution. Ex
2 Appellant does not have a final conviction under state law because he was placed on deferred- adjudication community supervision and terminated “unsatisfactorily” in December 2002. (CR at 37). But for purposes of Padilla and federal immigration law, he had a “final conviction” when he was placed on deferred-adjudication community supervision in December 2000. See Guerrero, 400 S.W.3d at 587-88 (explaining that deferred-adjudication community supervision is considered a “conviction” within the context of federal immigration law). 12 parte Luna, 401 S.W.3d 329, 334 (Tex. App.–Houston [14th Dist.] 2013, no pet.)
(quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)).
Immigration consequences of a guilty plea were considered collateral and did not
support an ineffective-assistance-of-counsel claim. See State v. Jimenez, 987
S.W.2d 886, 887–88 (Tex. Crim. App. 1999) (“That a guilty plea may result in
deportation is generally considered a collateral consequence.”); Ex parte Luna, 401
S.W.3d at 334 (“Immigration consequences of a guilty plea are considered
collateral ....”). Accordingly, “a pre-Padilla plea is not involuntary even if counsel
were deficient in advising his client regarding the immigration consequences.” Ex
parte Roldan, 418 S.W.3d 143,146 (Tex. App. –Houston [14th Dist.] 2013, no pet.)
(citing Ex parte Sudhakar, 406 S.W.3d 699, 702 (Tex. App.–Houston [14th Dist.]
2013, pet. ref’d)).
Here, the trial court found that Appellant was admonished in writing that he
could be deported as a result of his no-contest plea. (FFCL at 3-4)(CR at 14). And
Appellant concedes that the trial court judge gave him the following admonishment
at sentencing, on December 7, 2000: “These circumstances, as you were sworn
when you entered your plea, are such that you are probably now going to be
deported by the U.S. government.” (CR at 40). The record reflects that Appellant
received a written admonishment regarding the immigration consequences of his
plea, and thus supports the trial court’s written conclusion that the no-contest plea
13 was not involuntary even if plea counsel’s immigration advice was deficient.
Therefore, the trial court did not abuse its discretion in denying Appellant’s
application for a writ of habeas corpus.
Ineffective assistance of counsel generally.
In addition to his Padilla-type claim, Appellant argues that his plea counsel
was ineffective for not plea bargaining “effectively” and for not “mitigating harm
to” Appellant. These more general ineffective-assistance allegations are also not
supported by the record.
The test for ineffective assistance of counsel is derived from the Supreme
Court case Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v.
State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In order for counsel to be
deemed ineffective, it must be shown that counsel’s representation “fell below an
objective standard of reasonableness” and there is the probability that, but for
counsel’s deficient performance, the result would have been different. Id. at 55.
The test is applied to the “totality of the representation” rather than to isolated acts
or omissions of trial counsel, Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim.
App. 1983), and is applied at the time of the proceeding, not through hindsight.
Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). It is rare for the
appellate record to contain sufficient information to permit an appellate court to
14 evaluate the merits of a claim of ineffective assistance. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002).
The Strickland test requires an accused to show that his or her counsel’s
representation fell below an objective standard of reasonableness and that the
deficient performance prejudiced the defense. In meeting the second prong, that
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Ex
parte Wilson, 724 S.W.2d 72, 74 n. 1 (Tex. Crim. App. 1987). Thus, the defendant
must show that he was prejudiced as a result of deficient attorney performance.
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).
The essence of Appellant’s ineffective-assistance claim is that trial counsel
should not have allowed him to plead no contest, since that plea provided the legal
grounds for Appellant to be deported. However, that argument is not meritorious.
The appellate court will not second-guess trial counsel’s strategy, nor is the court
privy to the reasons counsel may have advised Appellant to plead no contest in this
case. Judicial scrutiny of counsel’s performance must be highly deferential, and a
reviewing court “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance[.]” Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Thus, “the defendant must
15 overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id.
The facts in the present case do not support an assertion that Appellant
received ineffective assistance from his plea counsel. Plea counsel did not testify at
the evidentiary hearing or provide an affidavit to explain why he advised Appellant
to enter the no-contest plea. Thus Appellant cannot overcome the strong
presumption that his counsel’s actions were motivated by sound trial strategy.
Strickland, 466 U.S. at 689. Indeed, the plea agreement resulted in Appellant being
placed on deferred-adjudication community supervision, instead of being
incarcerated. Appellant would have been subject to deportation either way, so the
plea agreement did result in a significant benefit to Appellant. For these reasons,
the record does not support a finding that defense counsel’s performance fell below
an objective standard of reasonableness under Strickland. Therefore, it is
unnecessary to reach the second prong of the analysis.
Conclusion
After a thorough review of the record, the undersigned attorney is unable to
identify any potentially meritorious points on appeal. It is the professional opinion
of the undersigned counsel that the appeal is frivolous and without merit. 3 See
3 See Johnson v. United States, 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966) (Burger, J. concurring): “An attorney owes his first duty to the court . . . His oath requires him to be absolutely honest even though his client’s interests may seem to require a contrary course.” 16 Anders v. California, 386 U.S. 738 (1967). Counsel has executed an attached
Certificate of Service certifying that he is sending Appellant a copy of his Motion
to Withdraw, and a copy of this Brief, with an explanation of Appellant’s further
rights regarding this appeal. High v. State, 537 S.W.2d 807 (Tex. Crim. App.
1978). Pursuant to the requirements of Anders v. California, 386 U.S. at 744-45,
and High v. State, 573 S.W.2d at 813, counsel has documented that he has
furnished Appellant with a copy of this brief. He has notified Appellant of his right
to review the record and to file any brief that he deems appropriate.
He has also provided Appellant with a motion for pro se access to the
appellate record to file with this Court if Appellant decides that he does wish to
review the record and file a pro se brief. See Kelly v. State, 436 S.W.3d 313, 318-
19 (Tex. Crim. App. 2014). Counsel for Appellant has attached documentation of
the letter advising Appellant of his rights and remedies, with instructions for filing
the motion for pro se access to the appellate record. See Anders, 386 U.S. at 744;
McMahon v. State, 528 S.W.2d 771, 772 (Tex. Crim. App. 1975); Kelly, 436
S.W.3d at 318-19.
17 Prayer
Counsel respectfully requests that he be allowed to withdraw from
representation of Appellant, and for all other relief that is fair and just.
Respectfully submitted,
/s/ Richard B. Dulany, Jr. ___________________________________ RICHARD B. DULANY, JR. Appellate Attorney Bexar County Public Defender’s Office 101 W. Nueva St., Suite 310 San Antonio, Texas 78205 (210) 335-0701 FAX (210) 335-0707 richard.dulany@bexar.org Texas Bar No. 06196400
ATTORNEY FOR APPELLANT
18 Certificate of Service
I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief In Support of Motion to Withdraw has been delivered by electronic service to
the Bexar County District Attorney’s Office, Appellate Division, Paul Elizondo
Tower, 101 W. Nueva St., Suite 710, San Antonio, Texas 78205, on April 7, 2015.
I further certify that a true and correct copy of the foregoing brief, as well as
counsel’s motion to withdraw, a letter outlining Appellant’s right to file a pro se
brief, and a motion for pro se access to the appellate record, were sent to: George
Garcia, c/o Laura Garcia, 507 Viendo Street, San Antonio, TX 78201, by certified
mail, return receipt requested, Article No. 7012 1640 0002 4217 9864, on May 7,
2015.
/s/ Richard B. Dulany, Jr. ____________________________________ RICHARD B. DULANY, JR.
19 Appendix – Letter advising George Garcia of his rights under Anders v. California, with motion for pro se access to the appellate record.
20 Bexar County Public Defender’s Office Paul Elizondo Tower 101 W. Nueva St., Suite 310 San Antonio, TX 78205 Phone: (210) 335-0701 Fax: (210) 335-0707
April 7, 2015
George Garcia c/o Laura Garcia 507 Viendo Street San Antonio, TX 78201
Re: Ex parte George Garcia Appeal No. 04-14-00809-CR Cause No. 2000CR5603W
Dear Mr. Garcia:
The trial court appointed the Bexar County Public Defender’s Office to represent you in your appeal from the denial of habeas corpus relief in the above-styled and numbered case. This letter is to advise you that I have reviewed the appellate record and have determined that there are no errors in the record that would support a reversal of the judge’s decision to deny the relief sought.
I have enclosed a copy of the brief that I have filed, which reflects the fact that I was unable to find any reversible errors. I have also enclosed a copy of my Motion to Withdraw, which I am required to file with the Fourth Court of Appeals because I have asserted that there are no meritorious grounds for relief. See In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008).
You have the right to review the appellate record on your own to see if you can find any error. If you decide that reversible error did occur in connection with your writ application, you may file a brief of your own with the Fourth Court of Appeals.
If you decide to exercise your right to review the appellate record and prepare a pro se response to the brief that I have filed, you will need to sign and date the Motion for Pro Se Access to the Appellate Record that I have enclosed with this letter. See Kelley v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). You must sign, date, and return the Motion to the Fourth Court of Appeals at the following address within 10 days:
1 Fourth Court of Appeals Cadena-Reeves Justice Center 300 Dolorosa St., Suite 3200 San Antonio, TX 78205-3037
The Clerk of the Fourth Court of Appeals will then advise you how to obtain a copy of the appellate record.
The Fourth Court of Appeals will review the appellate record, my brief, and your pro se brief if you decide to file one. If the Court does agree with my conclusion that this appeal is frivolous, you can then challenge that finding by filing a pro se petition for discretionary review with the Court of Criminal Appeals of Texas. After the Fourth Court of Appeals issues its opinion––which may take several months––I will send a letter with more information about filing a pro se petition for discretionary review.
This concludes my representation of you on this matter, other than to send you a copy of the judgment and opinion, and advise you of your further rights after the Court of Appeals issues its opinion. Although I have filed a motion to withdraw from your case, I remain available to answer any questions that you may have.
Sincerely yours,
RICHARD B. DULANY, JR. Assistant Public Defender
Enclosures: Copy of Brief in Support of Motion to Withdraw Copy of Motion to Withdraw Motion for Pro Se Access to the Appellate Record
Certified Mail – Return Receipt Requested Certified No. 7012 1640 0002 4217 9864
2 NO. 04-14-00809-CR
IN THE FOURTH COURT OF APPEALS OF TEXAS AT SAN ANTONIO, TEXAS
APPELLANT’S MOTION FOR PRO SE ACCESS TO THE APPELLATE RECORD
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the Appellant in the above styled and numbered cause and
files this Motion for Pro Se Access to the Appellate Record.
I.
Appellant’s appointed counsel has filed a motion to withdraw and brief in
support of the motion, pursuant to Anders v. California, 386 U.S. 738 (1967).
II.
The undersigned Appellant wishes to exercise his right to review the
appellate record in preparing his pro se response to the Anders brief that court-
appointed counsel has filed. The undersigned Appellant now moves this Court to
provide him with free, pro se access to the appellate record, including the clerk’s
record and reporter’s record. See Kelly v. State, 436 S.W.3d 313, 318-19 (Tex.
Crim. App. 2014). III.
The undersigned Appellant asks for a 30-day extension of time to file his pro
se brief.
IV.
This motion is addressed to the Fourth Court of Appeals, Cadena-Reeves
Justice Center, 300 Dolorosa St., Suite 3200, San Antonio, Texas 78205. This
motion is delivered to the Fourth Court of Appeals by U.S. Mail, on this the _____
day of _________, 2015.
WHEREFORE, PREMISES CONSIDERED, the Appellant respectfully
prays that the Court grant this Motion for Pro Se Access to the Appellate Record.
______________________________ George Garcia c/o Laura Garcia 507 Viendo Street San Antonio, TX 78201
APPELLANT PRO SE