Jose Pablo Hernandez v. State

Opinion

ACCEPTED 14-15-00689-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 11/5/2015 1:51:44 PM CHRISTOPHER PRINE CLERK

NO. 14-15-00689-CR FILED IN IN THE COURT OF APPEALS 14th COURT OF APPEALS HOUSTON, TEXAS 11/5/2015 1:51:44 PM FOR THE CHRISTOPHER A. PRINE Clerk FOURTEENTH SUPREME JUDICIAL DISTRICT

OF TEXAS

HOUSTON, TEXAS

JOSE PABLO HERNANDEZ APPELLANT

VS.

THE STATE OF TEXAS APPELLEE

ON APPEAL CAUSE NO. 73970 FROM THE 239th JUDICIAL DISTRICT COURT BRAZORIA COUNTY, TEXAS HONORABLE PATRICK SEBESTA, JUDGE PRESIDING

BRIEF FOR APPELLANT

PERRY R. STEVENS ATTORNEY AT LAW 603 E. MULBERRY ANGLETON, TEXAS 77515 TEL. (979)848-1111: FAX (979)849-9398 ATTORNEY FOR APPELLANT

i CERTIFICATE OF COMPLIANCE

I hereby certify this brief is a computer generated document and the

computer program used to prepare the document calculates the word count

to be 6,865 words.

/S/ Perry Stevens Perry Stevens Attorney for Appellant State Bar No. 00797496

ii NAMES OF ALL PARTIES

Jose Pablo Hernandez - Appellant TDCJ # 02005602 Lopez Unit 1203 El Cibolo Road Edinburg, TX 78542

Perry R. Stevens TSB# 00797496 603 E. Mulberry Street Angleton, TX 77515 (979) 848-1111 (979) 849-9398 fax Attorney for Appellant

State of Texas-Appellee Jeri Yenne Criminal District Attorney 111 East Locust Street, Room 408A Angleton, Texas 77515 Attorney for Appellee

iii SUBJECT INDEX

TITLE PAGE

CERTIFICATE OF COMPLIANCE................................................................ii

NAMES OF ALL PARTIES...........................................................................iii

SUBJECT INDEX....................................................................................iv-xii

LIST OF AUTHORITIES Case Law........................................................................................vii-ix Constitution.........................................................................................ix Statutes...............................................................................................ix

STATEMENT OF THE CASE....................................................................x-xi

STATEMENT OF ISSUES PRESENTED…………………………………….xii

BRIEF FOR APPELLANT………………………………………………………..1

STATEMENT OF THE FACTS.....................................................................2

SUMMARY OF ARGUMENT........................................................................3

POINT OF ERROR ONE..............................................................................4

APPELLANT CONTENDS TRIAL COUNSEL’S PERFORMANCE WAS DEFICIENT WHICH PREJUDICED HIS DEFENSE AND THUS APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

I. Standard of Review....................................................................4

II. Acts or Omissions Indicative of Deficient Performance..............5

iv A. Trial counsel denied Appellants right to effective counsel by consulting Appellant as to the charges against him, the facts surrounding the charges, immigration consequences, and his options, while Appellant was shackled to other detainees during pretrial proceedings in open court…………………………………….5

1. Argument and Authorities...........................................................5

a. Counsel’s representation fell below an objective standard of reasonableness.....................................................................5

b. The deficient performance prejudiced appellant’s defense................................................................................10

B. Trial counsel denied Appellant’s right to effective counsel by failing to prepare or investigate mitigating evidence for the punishment of Appellant……………………………………………………………….12

1. Argument and Authorities.........................................................13

a. Counsel’s representation fell below an objective standard of reasonableness...................................................................13

b. The deficient performance prejudiced appellant’s defense................................................................................18

C. Trial counsel denied Appellant’s right to effective counsel by failing to Object the State’s request the trial court consider Appellant’s lack of legal residency in accessing punishment………………………..20

1. Argument and Authorities.........................................................20

a. Counsel’s representation fell below an objective standard of reasonableness...................................................................20

b. The deficient performance prejudiced appellant’s defense................................................................................22

v III. Conclusion……….....................................................................23

PRAYER.....................................................................................................28

CERTIFICATE OF SERVICE......................................................................30

vi LIST OF AUTHORITIES

CASE PAGE

Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005)……………..……22

Barnett v. State, 338 S.W.3d 680 (Tex.App – Texarkana 2011)…………….18

DeRoche v. United States, 337 F.2d 606 (9th Cir. 1964)…………………….8

Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App. 1980)……………………...25

Ex parte Ybarra, 629 S.W.2d 943 (Tex.Crim.App. 1982)…………………....25

Freeman v. State, 167 S.W.3 114 (Tex.App. – Waco 2005)………………...18

Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)……………………………………………………..7

Gutierrez v. State, an unpublished opinion (Tex.App. – Dallas 2014)…21, 22

Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986)……...……11, 19

Hernandez-Gil, 476 F.3d 803 (9th Cir. 2007)………………………….…6, 7, 16

In re I.R., 124 S.W.3d 294, 299 (Tex.App. - El Paso 2003)………………….25

Kelly v. State, 321 S.W.3d 583, 602 (Tex.App. - Hous. [14th Dist.] 2010)….26

Kyles v. Whitley, 514 U.S. 419, 434 (1995)……………………………...…….5

Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001)…………………..26

McMann v. Richardson, 90 S.Ct. 1441,397 U.S. 759 (1970)….…………….4

Powell v. Alabama, 287 U.S. 45 (1932)……………………………………….4

vii LIST OF AUTHORITIES Continued

Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006)………………………………...6

Robinson v. State, 16 S.W.3d 808 (Tex.Crim.App. 2000)…………………...26

Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999)..............4, 20, 25

Shanklin v. State, 190 S.W.3d 154 (Tex.App. – Hous. (1st Dist.) 2005)……18

Shelton v State, 841 S.W.2d 526 (Tex.App. - Fort Worth 1992)…………….25

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).........................................3, 4, 10, 18, 20, 25, 26

Suburban Sew ‘N Sweep v. Swiss-Bernina, 91 F.R.D. 254 (N.D. Ill. 1981)…7

Swidler & Berlin et al v. United States, 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998)……………………………………………………9

United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, L.Ed.2d 115 (1980)..7

United States v. Rivas-Lopez, 678 F.3d 353, 356 (5th Cir. 2012)………12, 19

Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, L.Ed2d 584 (1981)…………………………………………………..…9, 10

Vasquez v State, 830 S.W.2d 948 at 951 (Tex.Crim.App. 1992)…..11, 13, 19

Villa v. State, 370 S.W. 3d 787 at 796 (Tex.App. – Eastland 2012)…………27

Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, L.Ed.2d 30 (1977)…….9

LIST OF AUTHORITIES

viii Continued

Wiggins v. Smith, 590 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)…………………………......................13, 18, 25

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)..18

Webb v. State, 36 S.W.3d 164,182 (Tex.App. - Hous. [14th Dist.] 2000)….…5

CONSTITUTION

U.S. CONST. Amends. VI and XIV...............................................................4

STATUTES

TEX. HEALTH AND SAFETY CODE Sec. 481.112(d)…………..……………x

ix STATEMENT OF THE CASE

This is a direct appeal from a conviction for Possession of a Controlled

Substance, PG 1 >= 4 grams < 200 grams with the intent to deliver.

Appellant was charged by indictment under TEX. HEALTH AND SAFETY

CODE Sec. 481.112(d) August 7, 2014. (Clerk’s Record at 5). Appellant

entered a plea of guilty on January 20, 2015. (II R.R. at 5).

Possession of a Controlled Substance, PG 1 >= 4 grams < 200 grams

with the intent to deliver, is a 1st degree felony offense with a range of

punishment of not more than 99 years or less than 5 years or life within the

Texas Department of Criminal Justice – Institutional Division and a fine not

to exceed $10,000.00.

Appellant plead guilty on January 20, 2015 before the Honorable Lisa

Burkhalter, visiting Judge Presiding, waived trial, and requested the trial

court assess punishment. (II R.R. at 5). Following the development of a

presentence investigation report, testimony before the Honorable Patrick

Sebesta, Judge Presiding, and argument of counsel, the trial court found

Appellant guilty on May 21, 2015. The trial court accessed punishment at 18

years in the Texas Department of Criminal Justice - Institutional Division with

x no fine, on May 21, 2015. (III R.R. at 32).

Appellant retained counsel for the purpose of a motion for new trial.

Following a hearing on Appellant’s Motion for New Trial, on July 30, 2015,

the trial court denied the motion. Appellant was appointed appellate counsel

on August 13, 2015. (Clerk’s Record II at 36).

xi STATEMENT OF ISSUES PRESENTED

POINT OF ERROR ONE

APPELLANT CONTENDS TRIAL COUNSEL’S PERFORMANCE WAS DEFICIENT WHICH PREJUDICED HIS DEFENSE AND THUS APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial counsel denied Appellants right to effective counsel by consulting Appellant as to the charges against him, the facts surrounding the charges, immigration consequences, and his options, while Appellant was shackled to other detainees during pretrial proceedings in open court. B. Trial counsel denied Appellant’s right to effective counsel by failing to prepare or investigate mitigating evidence for the punishment of Appellant. C. Trial counsel denied Appellant’s right to effective counsel by failing to Object the State’s request the trial court consider Appellant’s immigration status in accessing punishment.

xii NO. 14-15-00689-CR

IN THE COURT OF APPEALS

FOR THE

FOURTEENTH SUPREME JUDICIAL DISTRICT

ON APPEAL CAUSE NO. 73970 FROM THE 239th JUDICIAL DISTRICT COURT BRAZORIA COUNTY, TEXAS HONORABLE PATRICK SEBESTA, JUDGE PRESIDING

TO THE COURT OF APPEALS:

COMES NOW, Jose Pablo Hernandez, appellant herein, and files this

his brief in this cause. This is an appeal from the 239th Judicial District Court,

Brazoria County, Texas. Page 1 of 30 STATEMENT OF THE FACTS Pursuant to Rule 38.1(f), Texas Rule of Appellate Procedure

The State alleges that on or about May 7, 2014, Appellant “…did then

and there intentionally or knowingly possess with the intent to deliver a

controlled substance listed in Penalty Group (1), namely cocaine and the

amount of said controlled substance was, by aggregate weight, including any

adulterants and dilutants, at least four (4) grams but less than two hundred

(200) grams.” (See Indictment, C.R. at 5).

To this offense Appellant plead guilty and requested to trial court

access punishment on January 20, 2015. (II R.R. at 8). Evidence of the

offense is limited to the Laboratory report, indicating the weight of the

controlled substance was 27.31 grams, (C.R. Vol 1 of 2 at 14), and the

presentence investigation report. (C.R. Vol 2 of 2).

The presentence investigation report indicates after obtaining a search

warrant for Appellants residence, the Brazoria County Narcotics Task Force

entered Appellant’s home. Five person were located in the home. Following

a search of Appellant, which located cocaine on his person and a search of

the residence, locating additional cocaine, which Appellant took

responsibility for, Appellant was arrested. (C.R. Vol 2 of 2 at 7-8).

Page2of30 SUMMARY OF THE ARGUMENT Pursuant to Rule 38.1(g), Texas Rule of Appellate Procedure

Appellant’s first point of error is his trial counsel was ineffective under

the guidelines set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Trial counsel’s representation fell below an

objective standard of reasonableness and (2) the deficient performance

prejudiced appellant’s defense. Appellant asserts trial counsel was

ineffective for failing to properly consult Appellant fully outside the courtroom,

consulting Appellant while he was shackled to other inmates, properly

prepare Appellant and mitigation evidence for a punishment hearing, and

object to the State’s argument should be based on Appellants immigration

status.

Page3of30 POINT OF ERROR ONE

APPELLANT CONTENDS TRIAL COUNSEL’S PERFORMANCE WAS DEFICIENT WHICH PREJUDICED HIS DEFENSE AND THUS APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

I. The Standard of Review

To prevail on a claim of ineffective assistance of counsel an appellant

must prove by a preponderance of the evidence (1) his or her counsel’s

representation fell below an objective standard of reasonableness and (2)

the deficient performance prejudiced his or her defense. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rosales

v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999). The United States

Supreme Court as long held applicant had a right to the effective assistance

of counsel at trial. U.S. CONST. Amends. VI and XIV; Powell v. Alabama,

287 U.S. 45, 59 (1932); counsel must act within the range of competence

demanded of counsel in criminal cases. McMann v. Richardson, 90 S.Ct.

1441,397 U.S. 759 at 771 (1970).

The appellant must identify specific acts or omissions of trial counsel

not the result of reasonable professional judgment. The reviewing Court

must then determine whether, in light of all the circumstances, the acts or

omissions are outside the range of professionally competent assistance.

Page4of30 Appellant is not required to show he would have been acquitted but for trial

counsel’s errors. Appellant must only address the issue of whether he

received a fair trial worthy of confidence in the verdict. Kyles v. Whitley, 514

U.S. 419, 434 (1995). “...if the reviewing court harbors ‘grave doubts’ that

an error did not affect the outcome, that court must treat the error as if it did.”

Webb v. State, 36 S.W.3d 164,182 (Tex.App. - Hous. [14th Dist.] 2000),

referencing United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88

L.Ed.2d 814 (1986).

II. Acts or Omissions Indicative of Deficient Performance

A. Trial counsel denied Appellants right to effective counsel by

consulting Appellant as to the charges against him, the facts surrounding the

charges, immigration consequences, and his options, while Appellant was

shackled to other detainees during pretrial proceedings in open court.

1. Argument and Authorities

a. Counsel’s representation fell below an objective standard of

reasonableness.

The high stakes of a criminal plea bargain and the rules and regulations

effecting the immigrant make evident the necessity of the right to counsel

Page5of30 and the right to private uninterrupted consultation. This statutory right to

counsel criminal proceedings “stems from a constitutional guarantee of due

process.” See Hernandez-Gil, 476 F.3d 803 at 806 (9th Cir. 2007); Ray v.

Gonzales, 439 F.3d 582, 587 (9th Cir. 2006).

The issue of attorney-client privilege has been reviewed by the courts

and a concern is recognized in immigration courts. These opinions make it

clear the discussion of a client’s case, the facts, defenses, strategy, and

consequences in open court limit the client’s ability to open discussion and

attorney-client privilege. Although the majority of cases found reflect

immigration courts, the theory of attorney-client privilege and the resulting

degradation of such privilege is the same in any proceeding which requires

the right to due process. The Ninth Circuit has made clear that the

“importance of the right to counsel, whether it is guaranteed by the

Constitution or by Congressional action, cannot be overstated.” Hernandez-

Gil, 476 F.3d 803 at 806 (9th Cir. 2007). Accordingly, courts require that the

right to counsel include a genuine opportunity for an attorney to consult with

his client and stage a defense.

Defendants’ in shackles with other inmates impairs their ability to

openly discuss a defense with counsel. Communication while shackled

Page6of30 together with multiple defendants—vitiates the right of a defendant to

confidential communications with counsel, impedes the client’s ability to

provide information, and renders it impossible for the defendant to receive

adequate consultation at a crucial phase of the proceedings. The right to

counsel encompasses the right to confer in confidence with an attorney.

United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, L.Ed.2d 115 (1980);

Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

The Supreme Court has recognized that “the role of counsel is

important precisely because ordinarily a defendant is ill-equipped to

understand and deal with the trial process without a lawyer’s guidance.”

Geders, 425 U.S. at 88. As the Ninth Circuit has observed, “it is difficult to

imagine a layman more lacking in skill or more in need of the guiding hand

of counsel than an alien who often possesses the most minimal of educations

and must frequently be heard not in the alien’s own voice and native tongue,

but rather through an interpreter.” Hernandez-Gil, 476 F.3d 803 at 806 (9th

Cir. 2007). When a detainee is physically shackled to other detainees, the

attorney-client privilege is put in jeopardy. Suburban Sew ‘N Sweep v. Swiss-

Bernina, 91 F.R.D. 254, 258 (N.D. Ill. 1981). Appellant did not have the full

benefit of private consultation. Both trial counsel and Appellant testified the

Page7of30 private consultations were limited to, two jail house visits by trial counsel. (IV

R.R. at 7). Trial counsel testified he met and spoke with Appellant in court

with other inmates and guards/jailers. (IV R.R. at 7). Trial counsel testified

he discussed the case in open court on multiple occasions. (IV R.R. at 18).

The State fails to recognize this is not a genuine opportunity for a client to

consult with his attorney and stage a defense. The final offer open for one

day only was given in the courtroom with little time to reflect on the

consequences of accepting or rejecting the plea. (II R.R. at 9). Therefore,

the brief interaction during a court appearance may be the only opportunity

Appellant had to obtain legal advice before critical decisions were made in

his case. An acceptance of such practice by the Court will continue to force

defendants to conduct consultations with a less than diligent attorney while

bound to other inmates.

The approval of this practice substantially burdens—if not denies—the

right to counsel guaranteed by statute and the Fifth Amendment. DeRoche

v. United States, 337 F.2d 606, 607 (9th Cir. 1964) “…time for preparation

permitting merely a perfunctory appearance on behalf of the defendant fails

to redeem the constitutional guarantee.” The importance of “full and frank

communication between attorneys and their clients” has been recognized for

Page8of30 centuries. Swidler & Berlin et al v. United States, 524 U.S. 399, 403, 118

S.Ct. 2081,141 L.Ed.2d 379 (1998)(citing Upjohn v. United States, 449 U.S.

383, 389, 101 S.Ct. 677, L.Ed2d 584 (1981)). Candid disclosure from a client

is necessary for the lawyer to be able to adequately represent the client.

Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, L.Ed2d 584

(1981). “…sound legal advice or advocacy . . . depends upon the lawyer’s

being fully informed by the client.” “Competent handling of a particular matter

includes inquiry into and analysis of the factual and legal elements of the

problem, and use of methods and procedures meeting the standards of

competent practitioners”; see also Model Rules of Prof’l Conduct R. 1.1 cmt.

5 (2002). The consultation of a client while shackled to other inmates and

surrounded by guards, unnecessarily restricts the communication of

defendants, thereby limiting attorney-client communications and hampering

representation. Weatherford v. Bursey, 429 U.S. 545, 545 (n 4), 97 S.Ct.

837, L.Ed.2d 30 (1977). The impact of in court consultation while shackled

to other defendants, on the attorney-client privilege therefore presents an

actionable challenge. Being chained to others forces an Appellant to choose

between discloser of personal information, or relevant facts, within earshot

of other inmates and guards or withhold important information from their

Page9of30 counsel which could be crucial to their cases. Facts that may be critical to a

defendant’s fear of speaking openly of the facts of his case include

persecution based on health status (i.e. mental health), immigration status,

or other constitutionally protected grounds may be difficult or even

dangerous to utter in front of other defendants creating justifiable fear of the

potential for retribution if they disclose the facts of their case within earshot

of others who may be aligned with the prosecution. The State through the

questioning of trial counsel fails to recognize these conflicts without

consideration of the defendant who is forced to balance complete candor

with counsel, which is necessary for effective representation, against

disclosure of sensitive, personal information, a clear impediment to

Appellant’s right to effective counsel.

Because communication with one’s attorney is an essential part of

receiving effective counsel, Upjohn, 449 U.S. at 389, Appellant respectfully

request this Honorable Court to sustain his point of error.

b. The deficient performance prejudiced appellant’s defense.

Under the second prong of Strickland v. Washington, Appellant must

show there is a reasonable probability the result of the proceeding would

have been different, that counsels’ decision undermined confidence in the

Page10of30 outcome of the trial. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.

1986). A “reasonable probability” is a “probability sufficient to undermine

confidence in the outcome.” Vasquez v State, 830 S.W.2d 948 at 951 (Tex.

Crim. App. 1992).

Appellant testified he would have accepted the 12 year offer had he

fully understood the ramifications of pleading guilty and requesting the trial

court access punishment. (IV R.R. at 43). Appellant testified he requires

things to be repeated and has difficulty comprehending. (IV R.R. at 35).

Appellant testified he did not fully understand what was happening but

trusted his attorney. (IV R.R. at 38-41). Appellant testified he had difficulty

understanding the plea papers and trial counsel did not fully explained to him

or answer his questions prior to his entering a plea. (IV R.R. at 39).

Appellant’s testimony is supported by trial counsel’s testimony. Trial

counsel testified he was aware of Appellant’s limited mental capabilities, but

did nothing with respect to the issue. (IV R.R. at 15). Trial counsel testified

Appellant required repeated explanation, two or three times. (IV R.R. at 30).

Trial counsel testified, in response to “you never left him with the felling he

didn’t know what was going on, correct?”, “No, I don’t think so.” (IV R.R. at

19). With regards to the review of the plea papers, trial counsel explained

Page11of30 what it meant but didn’t read it word for word. (VI R.R. at 16).

Appellant’s medical condition and the difficulty Appellant has with

comprehension is supported by testimony of his sister n law. (IV R.R. at 54

- 55). In United States v. Rivas-Lopez, 678 F.3d 353, 356 (5th Cir. 2012), the

Court stated:

“When considering whether to plead guilty or proceed to trial, a defendant should be aware of the relevant circumstances and the likely consequences of his decision so that he can *357 make an intelligent choice. Where a defendant persists in a plea of not guilty, counsel’s failure to properly inform him about potential sentencing exposure may constitute ineffective assistance”

Appellant was harmed by the additional time he received in

punishment by not being fully aware of the consequences of pleading guilty

and asking the trial court to access punishment due to his trial counsel’s

failure to fully advise him outside the courtroom. This failure to advise

Appellant outside the courtroom resulted in reduced individual focus on

Appellant’s defense and trial strategy. It cannot be said that Appellant was

properly informed of “the relevant circumstances and the likely

consequences of his decision” and all aspects involved prior to pleading

guilty and proceeding to punishment before the trial court. Thus Appellant

asserts there is a reasonable probability the outcome would be different. A

Page12of30 “reasonable … probability sufficient to undermine confidence in the

outcome.” Vasquez v State, 830 S.W.2d 948 at 951 (Tex. Crim. App. 1992).

B. Trial counsel denied Appellant’s right to effective counsel by failing to

prepare or investigate mitigating evidence for the punishment of Appellant.

a. Counsel’s representation fell below an objective standard of

The record contains sufficient evidence trial counsel did little to prepare

for punishment. Wiggins v. Smith, 590 U.S. 510, 123 S.Ct. 2527, 156

L.Ed.2d 471, (2003). Trial counsel failed to provide or develop mitigating

evidence from a defensive perspective. The question for the Court in

evaluating Appellant’s claim is not whether counsel should have presented

a mitigation case, but whether his failure to explore the options available to

Appellant was reasonable. Id. at 523.

The record shows counsel had notice of Appellant’s history and family

support. (C.R. within the Presentence Investigation Report). The

presentence investigation provides evidence of support and Appellant’s

Page13of30 history. However trial counsel failed to expand on this information. Trial

counsel testified he was made aware of Appellant’s limited mental skills but

failed to expand or examine this further. (IV R.R. at 15). In response to

whether the family advised trial counsel as to Appellant limited cognitive

skills, trial counsel testified, “Yes, they did mention that he had some

troubles, that he was - - that he - - he had difficulty comprehending things

and that he had one of those mental problems of some type… but …that’s

about it. I didn’t take it any further than that.” (IV R.R. at 15). In response

to Appellant’s understanding of trial communications, trial counsel again fails

to establish Appellant fully understood. (IV R.R. at 19 and 30). Counsel

explained he was simply focused and concerned with the “Santa Muerte

Shrine.” (IV R.R. at 11).

The record contains sufficient evidence trial counsel did little to prepare

Appellant for testifying at the punishment hearing. Trial counsel only met

with Appellant twice in private at the detention center, May, 2014, the initial

visit following retainer, and November of 2014. (IV R.R. at 7 and 35). Trial

counsel does testify he meet and spoke with Appellant during each court

appearance and discuss the facts of the case. Counsel justifies this

communication while Appellant is shackled to other inmates and within

Page14of30 earshot of guards, by testifying he spoke some in Spanish. (IV R.R. at 7).

This counsel believes is sufficient representation. Appellant respectfully

request the Court to consider the above discussion of Attorney-Client

privilege with regards to consultations while a defendant is shackled to other

inmates. Additionally justification of speaking Spanish does little to insure

privacy in consideration of the demographics of the south Texas region.

During the November meeting trial counsel testified Appellant and he

discussed the facts of the case and concerns with a trial before a jury. (IV

R.R. at 11). However trial counsel did not discuss any preparation of

Appellant to testify. In response to the State’s question, “did you and your

client both agree that you were going to structure the best possible

information to put before the Court, correct?” Trial counsel stated “Yes”. (IV

R.R. at 22). Appellant would ask this court to consider the truth of this when

evaluated with evidence he never meet with Appellant to discuss the

punishment hearing. By trial counsel’s own admission he never meet with

Appellant after November 2014 in which his consultation was limited to the

evidence and range of punishment. (IV R.R. at 11). As stated above the

Ninth Circuit has made clear that the “importance of the right to counsel,

whether it is guaranteed by the Constitution or by Congressional action,

Page15of30 cannot be overstated.” Hernandez-Gil, 476 F.3d 803 at 806 (9th Cir. 2007).

Accordingly, courts require that the right to counsel include a genuine

opportunity for the client to consult with his or her counsel and stage a

defense.

Appellant plead guilty on January 20, 2015 and testified at his

sentencing hearing on May 21, 2015. (III R.R. at 1 and 4). However trial

counsel would have the Court believe Appellant was sufficiently prepared to

testify even though he recognized Appellant sometimes failed to understand

his communication. (IV R.R. at 19 and 30). With knowledge of Appellant’s

limited ability, trial counsel choose to review the paper work for a plea in open

court while Appellant was shackled to other prisoners. (IV R.R. at 7 and 16).

Paper work in which trial counsel himself has difficulty in clarifying, in

response to questions as to eligibility for community supervision and the right

of appeal, evidence of the difficulty of testifying even with the experience and

education of license attorney. (IV R.R. at 13-14). Additionally trial counsel

placed Appellant in the position to be subjected to cross examination without

any preparation. Again Appellant ask this Court to recognize the difficulty

trial counsel has testifying. (IV R.R.). Trial counsel, by his own testimony,

limited his representation to gathering letters on behalf of Appellant and

Page16of30 submitting them to the probation office. Trial counsel testified he personally

collected letters from multiple people and supplied them to the probation

office. (IV R.R. at 23). However the presentence investigation report

contradicts this testimony by establishing the letter’s where received from

Appellant’s sister-in-law on May 4, 2015. (Clerk’s Record page 17). There

is no objection to this statement by trial counsel when requested by the trial

court. (III R.R. at 6). Trial counsel did not even personally contact the officer

in charge of preparing the presentence investigation report as evidenced by

the report itself. (Clerk’s Record page 17). How much credit can be given

to trial counsel’s testimony?

Appellant was facing life in the Texas Department of Criminal Justice-

Institutional Division, what did trial counsel do to prepare himself or his client

for sentencing on May 21, 2015? During the punishment hearing trial

counsel asked Appellant to state his name, if he was in fact the same

defendant named in the indictment, clarified Appellant’s mother’s death while

he was incarcerated, and that he sold drugs to pay for her medication. Less

than two pages of questions and answers. (III R.R. at 7 and 8). Following

the State’s cross of Appellant, trial counsel focused on the “Santa Muerte

Shrine” and Appellant’s religious belief and his request for community

Page17of30 supervision. Less than three pages of questioning. (III R.R. at 18-21). Then

in summary, trial counsel clarifies, Appellant only made major drugs deals 4

or 5 times. (III R.R. at 26). Is this reasonable evidence to focus on for

mitigation of punishment? Of the twenty-seven pages of testimony, trial

counsel is only responsible for five pages of questioning of his client. Nothing

further, no family, no medical records, no jail records, no clarification of the

Spanish written letters contained within the presentence investigation report,

nothing to provide the court in considering a range of punishment of 5-99, or

life.

Trial counsel for Appellant performance was deficient. Wiggins v.

Smith, 590 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471, (2003); Williams v.

Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000): Barnett v.

State, 338 S.W.3d 680 (Tex.App – Texarkana 2011); Shanklin v. State, 190

S.W.3d 154 (Tex.App. – Hous. (1st Dist.) 2005); Freeman v. State, 167 S.W.3

114 (Tex.App. – Waco 2005).

Under the second prong of Strickland v. Washington, Appellant must

show there is a reasonable probability the result of the proceeding would

Page18of30 have been different, that counsels’ decision undermined confidence in the

outcome of the trial. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.

1986). A “reasonable probability” is a “probability sufficient to undermine

confidence in the outcome.” Vasquez v State, 830 S.W.2d 948 at 951 (Tex.

Appellant testified he would have accepted the 12 year offer had he

known his trial attorney would not act in a responsible, reasonable manner

in representing his interest. Appellant would have accepted the offer had he

known his trial attorney was not going to prepare both Appellant and

additional evidence for presentation to the trial court. Therefore it is

uncontested the result would of the proceeding would have been different.

Appellant did not deny he was willing to accept the 12 year offer had he been

fully aware of the misguided trust Appellant had in his trial attorney.

In United States v. Rivas-Lopez, 678 F.3d 353, 356 (5th Cir. 2012), the

“When considering whether to plead guilty or proceed to trial, a defendant should be aware of the relevant circumstances and the likely consequences of his decision so that he can *357 make an intelligent choice. Where a defendant persists in a plea of not guilty, counsel’s failure to properly inform him about potential sentencing exposure may constitute ineffective assistance.

Page19of30 Trial counsel’s performance was deficient and this deficiency

prejudiced Appellant’s defense. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rosales v. State, 4 S.W.3d 228, 231

(Tex.Crim.App. 1999).

C. Trial counsel denied Appellant’s right to effective counsel by failing

to Object the State’s request the trial court consider Appellant’s immigration

status in accessing punishment.

a. Counsel’s representation fell below an objective standard of

The State requested the trial court punish Appellant due to his

immigration status. “We’d ask the Court to consider … the fact that Mr.

Hernandez is not even a citizen of this country and has no right to be in this

country, yet has come into this country…” (III R.R. at 28). Appellant’s alien

status was not a contested issue nor is there evidence he is here illegally.

Page20of30 To this, the record is silent as to whether Appellant is a registered alien or

not. However, to this request trial counsel fails to object.

As reviewed in Gutierrez v. State, an unpublished opinion (Tex.App. –

Dallas 2014), the State cannot show this is an extraneous offense or prior

“bad act.” Additionally, as in Gutierrez v. State, the State argued that his

status justified a harsher punishment. To this issue of punishment based on

immigration status, Gutierrez v. State has a complete review;

“There is no question that discrimination based on race, ethnicity or national origin is prohibited by the due process, due course of law, equal protection, and equal rights clauses of the United States and Texas Constitutions. Flores v. State, 904 S.W.2d 129, 130 Tex. Crim. App. 1995). Further, the equal protection clause of the United States Constitution also protects immigrants whose presence in this country is unlawful. See Plyler v. Doe, 457 U.S. 202, 212 (1982). Sentencing a defendant more harshly based solely on his alien status violates the defendant’s constitutional right to due process. See United States v. Garcia-Cardenas, 242 Fed. Appx. 579, 583 (10th Cir. 2007); United States v. Onwuemene, 933 F.2d 650, 651 (8th Cir. 1991); United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986); see also United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir. 1989).”

The prosecutor’s argument to punish Appellant based on his immigration

status was not to show a lack of his ability to follow the law but simply to

justify a harsher punishment.

When no reasonable trial strategy can justify trial counsel’s failure to

Page21of30 act, in this case, failure to object, counsel’s performance is below a standard

of reasonableness. Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App.

2005). In those rare cases which there is no conceivable basis of reasonable

trail strategy for counsel’s failure to object, trial counsel performance is

deficient. Gutierrez v. State, unpublished opinion (Tex. App. – Dallas 2014).

Appellant, age 29, was eligible for probation and thus had no prior

felony record. Although Appellant’s criminal history is steady, it does appear

to stop until the illness of his mother, thus giving support as to his reasoning

for committing the crime. Appellant’s criminal history contained within the

presentence investigation report shows twenty-five violations of the law.

Fifteen of the violations while Appellant was a juvenile. Of the fifteen, two

have no indication of a final disposition and thirteen from the same

adjudication date, September 7, 2000, Fifteen years earlier. Six violations

as an adult represent class C and B misdemeanor violations. The remaining

four criminal violations are the current allegations pending, one of which

Appellant plead guilty and is the basis for the conviction he now appeals.

(C.R. 2 of 2 at 13-14). Of the four pending allegations, two are Class B and

Page22of30 Class A misdemeanors, one is a State jail felony, leaving the 1st degree

felony, the subject of this appeal. In consideration of his testimony, his

motive for selling drugs was to care for his mother and the letters of support

indicating his love for his mother and good disposition it is reasonable to

conclude Appellant was harmed by this un-objected to and unanswered

request to punish Appellant based on his immigration status. The probability

of prejudice is sufficient to undermine confidence in the sentencing of

Appellant.

III. Conclusion

The State during the hearing on the Motion for New Trial focused on

Appellant’s plea was voluntarily and knowingly made, without coercion. In

closing on the Motion for New Trial the State focused on the following points

of trial counsel’s representation: (1) “received money”; (2) “made visits to the

jail to see his client”; (3) “made multiple visits to this courtroom on docket

days to discuss the case”; (4) “received plea offers”; (5) “negotiated plea

offers”; (6) “compiled letters for a PSI” (this is argued twice has if to enhance

trial counsel efforts); (7) “went over the range of punishment with his client”;

(8) “went over the offense report…everything associated with this case, he

Page23of30 reviewed it”; (9) “offers were conveyed and rejected” and; (10) a consensus

was let’s gather and let’s get everything together and that’s what he did.”

(IV R.R. at 60). The State in closing reiterates Appellant’s plea was

“knowingly and voluntarily”. (IV R.R. at 60).

The State fails to recognize the most important issue to Appellant,

trust. Appellant testified he trusted his attorney. (IV R.R. at 41). He believed

he could trust his attorney to do more then to present him to a prosecutor for

cross examination and a trial court for sentencing without preparation,

without investigating/interviewing witnesses, without representing Appellant

to the presentence investigator, and without more than an argument to the

trial court that the State has a financial motive to convict Appellant, (IV R.R.

at 29), that cocaine is no more harmful than alcohol, (IV R.R. at 30), the

marijuana was for personal use, (IV R.R. at 30), and finally trial counsel

compares the State’s request of fifty years to that which a defendant received

in a “horrendous…bloody crime” to “sin” and therefore the trial court should

apparently give the defendant less. (IV R.R. at 31). Never does trial counsel

request community service from the trial court. Counsel did nothing to

prepare mitigation for Appellant. The State believes the efforts as noted

above relieves trial counsel duty to prepare defendant and present mitigation

Page24of30 evidence. Without an investigation into possible mitigation evidence, trial

counsel cannot justify a failure to present mitigation evidence. Trial counsel

cannot make decisions or properly advise his client to go to the trial court

without first knowing how and with what evidence would mitigate

punishment. Wiggins v. Smith, 590 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d

471, (2003). Trial counsel failed in his responsibility to prepare a client that

trusted him.

Appellant counsel’s representation fell below an objective standard of

reasonableness and this deficient performance prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).

Trial counsel’s representation, so compromised the proper functioning

of the adversarial process, the trial cannot be said to have produced a

reliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); In re I.R., 124 S.W.3d 294, 299 (Tex.App. - El Paso

2003); Shelton v State, 841 S.W.2d 526 (Tex.App. - Fort Worth 1992); Ex

parte Ybarra, 629 S.W.2d 943, 948 (Tex.Crim.App. 1982); Ex parte Duffy,

607 S.W.2d 507, 518 (Tex.Crim.App. 1980). “The result of a proceeding can

be rendered unreliable, and hence the proceeding itself unfair, even if the

Page25of30 errors of counsel cannot be shown by a preponderance of the evidence to

have determined the outcome.” Strickland at 694, 104 S.Ct. 2052.

“In the rare cases in which the record on direct appeal is sufficient to

show that counsel’s performance was deficient, an appellate court should

address the claim.” Robinson v. State, 16 S.W.3d 808, 813 n. 7

(Tex.Crim.App. 2000).

“In summary, a reviewing court in applying the harmless error rule should not focus upon the propriety of the outcome of the trial. Instead, an appellate court should be concerned with the integrity of the process leading to the conviction. Consequently, the court should examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications...[T]he reviewing court should focus not on the weight of the other evidence of guilt, but rather on whether the error at issue might possibly have prejudiced the jurors’ decision-making... In other words, a reviewing court must always examine whether the trial was an essentially fair one.”

Kelly v. State, 321 S.W.3d 583, 602 (Tex. App. - Hous. [14th Dist.] 2010)

(citing Harris v. State, 790 S.W.2d 568, 587 - 88 (Tex. Crim. App. 1989).

An appellant may prevail on an ineffective assistance claim by

providing a record that affirmatively demonstrates that counsel’s

performance was not based on sound trial strategy. Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001). “…while the wisdom of trial strategy

Page26of30 is not for us to judge, *796. We will inquire into such matters when there

appears to be no plausible basis for trial counsel’s actions.” Villa v. State,

370 S.W. 3d 787 at 796 (Tex. App. – Eastland 2012) ref. Johnson v. State,

614 S.W.2d 148, 152 (Tex. Crim. App. 1981).

The State, by their questioning of trial counsel at the hearing on the

Motion for New Trial, would have this Court believe trial counsel’s

representation due to his review of their file, multiply request for plea offers,

and providing research justifies his representation. (IV R.R. at 20). Although

this may be zealous request and justification for less years in TDJC, it does

not meet the standards of representation as noted by the Courts as

established by their opinions pointed out above. The State continues their

questioning of trial counsel to show his knowledge of the difficulties with a

trial before a jury, due to the amount of cocaine and the shrine. “…it could

be - - he could get hammered pretty good?” (IV R.R. at 21). However this

fails to justify a failure to prepare a client for a hearing on mitigation,

especially for a case both the State and trial counsel recognized by their own

admission to be challenging. (IV R.R. at 21).

The State argues Appellant’s testimony is less than credible. The

State will ask the court to consider Appellant’s motivation in what his

Page27of30 testimony is. The argument is the Appellant has his freedom at stake and

therefore his testimony is less than credible.

Appellant ask this court to consider the motivation of an attorney who

has failed to do his job and the meaning of being found ineffective. The

evidence of trial counsel’s lack of credibility with regard to his efforts in

representing his client during the presentence investigation must be

considered. The State’s closing statement goes both ways: “When

somebody is trying to be honest, it’s the State’s position they should just

accept full responsibility and come out whether it’s good, bad, or indifferent,

come clean all the way…” (IV R.R. at 28).

Appellant’s conviction under TEX. HEALTH AND SAFETY CODE Sec.

481.115(b), is not a verdict worthy of confidence. Appellant was harmed by

trial counsel’s failure to properly consult Appellant fully outside the

courtroom, consulting Appellant while he was shackled to other inmates,

properly prepare Appellant and mitigation evidence for a punishment

hearing, and object to his punishment being based on his immigration status.

Accordingly, he is entitled to a new trial. Appellant request this Honorable

Court sustain his point of error one.

Page28of30 PRAYER Pursuant to Rule 38.1(I), Texas Rules of Appellate Procedure

WHEREFORE, PREMISE CONSIDERED, Appellant prays this

Honorable Court sustain Appellant’s point of error one. Upon said finding,

Appellant respectfully request this Honorable Court reverse the judgment of

the trial court and remand to the trial court for a new trial.

In the alternative Appellant respectfully request this Honorable Court

remand the trial court for a new punishment hearing.

Respectfully Submitted, Perry R. Stevens Attorney at Law 603 East Mulberry Angleton, Texas 77515 (979) 848-1111 Telephone (979) 849-9398 Facsimile

By: /S/ Perry Stevens PERRY STEVENS Attorney for Appellant State Bar No. 00797496

Page29of30 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

document has been forwarded to Jeri Yenne, 111 East Locust, Suite 408A,

Angleton, Texas 77515, on the 5th day of November, 2015.

/S/ Perry Stevens Perry Stevens Attorney for Appellant State Bar No. 00797496

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