ACCEPTED 13-14-00441-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/20/2015 10:38:59 PM DORIAN RAMIREZ CLERK
CAUSE NO. 13-14-00441-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS FOR THE THIRTEENTH SUPREME JUDICIAL DITRICT CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 3/20/2015 10:38:59 PM DORIAN E. RAMIREZ RENE FRANCISCO AGUILERA., APPELLANTClerk
V.
THE STATE OF TEXAS, APPELLEE
APPEAL OF TRIAL COURT CASE NO. CR-1836-00-D(1) FROM THE 206TH JUDICIAL DISTRICT OF HIDALGO COUNTY, TEXAS The Honorable Rose Guerra Reyna, Presiding
BRIEF OF STATE/APPELLEE
RICARDO RODRIGUEZ, JR. CRIMINAL DISTRICT ATTORNEY HIDALGO COUNTY TEXAS
MICHAEL W. MORRIS, ASSISTANT State Bar No. 24076880 Lead Counsel for Appellee
Office of Criminal District Attorney Hidalgo County Courthouse 100 N. Closer Blvd. Edinburg, Texas 78539 Telephone: (956) 318-2300 ext. 781 Telefax: (956) 380-0407
ATTORNEYS FOR THE STATE
Oral argument is not requested
i IDENTITY OF PARTIES AND COUNSEL
APPELLANT in this case is Rene Francisco Aguilera.
APPELLANT is represented on appeal by Hon. Carlos M. Garcia, 320 W.
Pecan Blvd., McAllen, Texas 78501.
APPELLANT was represented during the application for writ of habeas
corpus by Hon. Carlos M. Garcia, 300 E. Pecan Blvd., McAllen, Texas 78501.
APPELLEE in this case is the State of Texas, by and through her District
Attorney for Hidalgo County, the Hon. Ricardo Rodriguez, Jr., Office of Criminal
District Attorney, Hidalgo County Courthouse, 100 N. Closner Blvd., Edinburg,
Texas 78539.
APPELLEE is represented on appeal by Hon. Michael W. Morris, Assistant
District Attorney for Hidalgo County, Hidalgo County Courthouse, 100 N. Closner
Blvd., Edinburg, Texas 78539.
APPELLEE was represented application for writ of habeas corpus by Hon.
Michael W. Morris, Assistant District Attorney for Hidalgo County, Hidalgo
County Courthouse, 100 N. Closner Blvd., Edinburg, Texas 78539.
ii TABLE OF CONTENTS
Identification of Counsel and Parties ................................................................... ii
Table of Contents ................................................................................................ iii
Index of Authorities ............................................................................................ iv
Notation as to Citation ........................................................................................ vi
Statement of the Case......................................................................................... vii
Issues Presented (Restated) ................................................................................ vii
Note as to Oral Argument .................................................................................. vii
Statement of Facts .................................................................................................1
Summary of the Argument....................................................................................1
Argument...............................................................................................................1
I. The Trial Court did not abuse its discretion in denying Appellant’s writ application ....................................................................2
A. Credibility determinations of Appellant and his common law wife ...........................................................................................................2
B. Actual innocence - Herrera ....................................................................5
C. Actual Innocence - Schlup .....................................................................6
II. Ineffective Assistance of Counsel ............................................................6
Prayer for Relief ................................................................................................. 10
Certificate of Compliance .................................................................................. 11
Certificate of Delivery ....................................................................................... 12 iii INDEX OF AUTHORITIES
Cases
Drew v State, 743S.W.2d 207 (Tex Crim. App. 1987) ........................................3
Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013) ............. 3, 4, 6
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) .......................... 10
Ex parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002) ....................... 11, 12
Ex parte Garcia, 353 S.W.3d 785 (Tex. Crim. App. 2011) ................................4
Ex parte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014) ..............................8
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ............................... 10
Herrera v. Collins, 506 U.S. 390 (U.S. 1993) .....................................................9
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh'g) ......................... 9, 10, 11
Moore v. State, 694 S.W.2d 528 (Tex. Crim. App. 1985) ...................... 9. 10, 11
Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) ...................................................4
Pipkin v. State, 935 S.W.2d 213 (Tex. App. - Amarillo 1996, pet. ref'd) ............................ 4, 5, 7
Schlup v. Delo, 513 U.S. 298 (1995) ....................................................................2
Strickland v. Washington, 466 U.S. 668 (1984) ......................................... 3, 4, 5
Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) ........................... 10
iv Statutes and Rules
TEX. CODE CRIM. PROC. Art. 11.07 (2013) ...................................................... 2, 3
TEX. CODE CRIM. PROC. Art. 11.072 (2013) .................................................... 2, 3
TEX. CODE CRIM. PROC. Art. 12.01 (2013) ...........................................................4
TEX. R. APP. P. 33.1(a)(2013) ...............................................................................6
v NOTATION AS TO CITATION
Citation to the record of the case below will be as follows:
1. Citation to the three volume Reporter’s Record (RR) and the one volume
Supplemental Reporter’ Record (SRR) will be to volume and page, e.g., “2
RR 12” refers to page twelve of volume two of the Reporter’s Record.
a. Citation to State’s exhibits will be to volume and exhibit, e.g., “3 RR
SX 5” refers to State’s exhibit five found within volume three of the
Reporters Record.
2. Citation to the single-volume Clerk’s Record (CR) will be to page only, e.g.,
“CR 015” refers to page 15 of the Clerk’s Record.
3. Citation to Appellant’s Brief (AB) will be to page only, e.g., “AB at 6”
refers to page 6 of the Appellant’s Brief.
vi STATEMENT OF THE CASE
The State adopts Appellant’s Statement of the Case.
ISSUES PRESENTED
I. The Trial Court did not abuse its discretion in finding that Appellant did not prevail on his claim of actual innocence
II. The Trial Court did not abuse its discretion in finding that Appellant did not prevail on his claim of ineffective assistance of counsel.
NOTE AS TO ORAL ARGUMENT
The State of Texas respectfully submits that oral argument in the case at bar
would not serve to enlighten the Court further, because the facts and legal
arguments are adequately presented in the briefs and record. The State respectfully
submits that oral argument in the instant case is not necessary and should therefore
be denied.
The State reserves the right to present oral argument should the Court grant
oral argument.
vii STATEMENT OF FACTS
The State generally adopts Appellant’s Statement of Facts.
SUMMARY OF THE ARGUMENT
The Trial Court was free to assess the credibility of Appellant and Ms.
Lorena Martinez; said credibility determination was sole within the discretion of
the Trial Court. As such, Appellant has failed to show that the Trial Court abused
its discretion in denying his claim of actual Innocence under Ex Parte Elizondo/
Herrera. Further, there is no freestanding Schlup actual innocence claim.
The trial court did not abuse its discretion in denying Appellant’s claim that
his trial counsel rendered ineffective assistance of counsel. Appellant was advised
of the consequences of his plea by his attorney Luis Singleterry and cannot show
that he received deficient performance when his trial counsel Susan Miller did not
repeat the admonishments. Further, Appellant was properly admonished by the
Court and cannot show harm even if counsel was deficient.
1 ARGUMENT
I. The Trial Court did not abuse its discretion in denying Appellant’s writ application.
A. Credibility determinations of Appellant and his common law wife.
In his first two issues Appellant alleges that the Trial Court abused its
discretion in finding the testimony of Appellant and his common law wife, Lorena
Martinez, not credible. However, Appellant misunderstands the applicable law.
The cases Appellant cites for the proposition that the credibility determinations in a
writ of habeas corpus proceeding as subject to review are proceedings under article
11.07 of the Texas Code of Criminal Procedure. See AB at 19-20,
Appellant received a suspended sentence and was placed on community
supervision. CR 6. Appellant’s application for writ of habeas corpus was filed
under Article 11.072 of the Code of Criminal Procedure1. CR 14, 82, 91. The trial
court acts as the factfinder in applications for writ of habeas corpus filed under art.
11.072 of the Code of Criminal Procedure; the trial court merely makes findings
and recommendations to the Court of Criminal Appeals in applications filed under
art. 11.07 of the Code of Criminal Procedure. Compare TEX. CODE CRIM. PROC.
11.072 §7(a); TEX. CODE CRIM. PROC. 11.07 § 5. As such, the case law explaining
the role of the trial court in proceedings under art.11.07 of the code of criminal
1 All references to the code of criminal procedure reference the Texas Code of Criminal Procedure unless otherwise noted. 2 procedure are not necessarily binding for those under 11.072. The Court of
Criminal Appeals has noted the difference between the art. 11.072 and art 11.07 of
the code of criminal procedure. In Ex parte Garcia, the Court of Criminal
Appeals noted that while it is the ultimate factfinder for purposes of applications
filed under art. 11.07, it is sitting as a true appellate court in the 11.072 context.
353 S.W.3d 785, 787-88 (Tex. Crim. App. 2011). As such, the Trial Court is the
sole finder of fact in the 11.072 context. Id.
A trial court is free to believe all, some, or none of a witness's testimony; the
trial court is free to disbelieve a witness’s testimony even if that testimony is
uncontroverted. When acting as the sole and exclusive fact finder, the trial court is
likewise the sole judge as to the credibility of the witnesses and the weight to be
given their testimony. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997).2 The Trial Court’s credibility determinations were made after live
testimony in which the Court was able to observe the demeanor of the witness and
the content of the testimony. See 2 RR passim. In determining the credibility of a
recanting witness, the prior testimony or statement must be weighed against the
new testimony. Further, it is always a situation where a witness is stating “I lied
before, but believe me now.”
2 In Ex parte Garcia, the Texas Court of Criminal Appeals determined that the Guzman standard of deference applied in 11.072 context. Garcia 353 S.W.3d at 788. 3 Appellant is incorrect that Drew v. State is inapposite. Ms. Martinez was not
convicted of the same crime, but was charged with and later had an Order Barring
Offense signed for the same conduct.3 Further, the statute of limitations for
possession of marijuana is three years. See TEX. CODE CRIM. PROC. art. 12.01(7).
The Order Barring Offense in Ms. Martinez’s case was signed June 15, 2001. 3
RR SX5. Any tolling provided by the indictment filed by the State would also
have terminated at that time. Clearly, more than the three years have passed
between the entry of the Order Barring Offense and Ms. Martinez’s recantation and
acceptance of responsibility. Therefore, she does not subject herself to any
criminal liability in claiming the marijuana in question was in her sole possession.
Therefore, under Drew v State, 743S.W.2d 207, 288 (Tex Crim. App. 1987), the
Court correctly viewed her testimony with skepticism. 4
Appellant cannot show that the Trial Court’s determination of credibility
was an abuse of discretion.
3 In said order, the Trial Court stated that it was considering the barred cause as an unadjudicated offense in another cause number. See 3 RR SX 5. 4 Appellant’s argument that Drew has somehow been supplanted by the actual innocence case law flowing from Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) is also without merit. The fact that the Texas Court of Criminal Appeals has stated that recantation testimony if found credible can be the basis for a claim of actual innocence does not diminish the logic espoused in Drew that testimony from an accomplice that exonerates a defendant without exposing the accomplice to further criminal liability is to be viewed with suspicion. Drew, 743S.W.2d at 288. 4 B. Actual innocence - Herrera
In his second ground, Appellant alleges that the Trial Court abused its
discretion when it denied his actual innocence claim. AB at 27. This claim is
premised off his faulty assertion that the testimony of Appellant and Ms. Martinez
must have been credible. As the State contends above, this is not so; the Trial
Court specifically found that the testimony was not credible. Without credible
testimony rebutting Appellant’s confession in his statement, there is no newly
discovered evidence that provides clear and convincing evidence that Appellant is
actually innocent. See Elizondo, 947 S.W.2d at 209; Herrera v. Collins, 506 U.S.
390 (U.S. 1993). Further, at least as to the evidence provided by Appellant
himself, it cannot have been “newly discovered”; Appellant would have had to
been aware that he did not know of the marijuana in the bedroom. The evidence
adduced from Appellant’s wife, even if it was to be believed, hardly amounts to
clear and convincing evidence in light of the admission of guilt in Appellant’s
statement and his judicial confession. See 2 RR15-17; Ex parte Harleston, 431
S.W.3d 67, 91-92 (Tex. Crim. App. 2014)(Price J. concurring)(“[The] recantation[]
must be so convincing and compelling that [it] produce[s] in our minds the firm
belief or conviction that no reasonable juror, having heard the recantations, would
have relied upon the complaining witness's trial testimony to convict.”).
5 C. Actual Innocence - Schlup
In Appellant’s second ground, he also claims that the Trial Court erred by
failing to grant his actual innocence claim based on Schlup v. Delo, 513 U.S. 298
(1995). However, Appellant fails to state that a Schlup actual innocence claim is
merely a gateway to have an otherwise barred claim resurrected and does not
provide affirmative relief itself. See Elizondo, 947 S.W.2d at 208; Ex parte
Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002). This was Appellant’s first
writ application, and as such, neither his Herrera actual innocence claim nor his
ineffective assistance of counsel claim was procedurally barred. See CR 14, 99,
139, 142.
Therefore, Appellant does not need to make a Schlup claim to have his
claims heard on the merits and a Schlup claim cannot afford Appellant any relief.
II. Ineffective Assistance of Counsel5
In his third ground, Appellant claims that the trial court erred when it denied
his application for writ of habeas corpus on the grounds that his attorney Susan
Miller provided ineffective assistance of counsel because she did not personally
admonish him of the consequences of his plea.
5 Appellant alleges additional ground of ineffective counsel in his appellate brief. These claims were not raised by way of the application for writ of habeas corpus, nor were they raised during the evidentiary hearing. CR 14- 90; 2 RR passim. As such, the State contends that they were not preserved and will not address such claims. See Tex. R. App. P. 33.1(a)(2)(A). 6 A trial court's decision whether to deny or grant an application for habeas
corpus is reviewed under an abuse of discretion standard. Pipkin v. State, 935
S.W.2d 213, 215 (Tex. App. - Amarillo 1996, pet. ref'd). An abuse of discretion
occurs when a trial court acts without reference to any guiding principles or rules.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh'g).
The appellate courts should afford almost total deference to a trial court's
determination of the historical facts that the record supports especially when the
trial court's fact findings are based on an evaluation of credibility and demeanor.
See Guzman, 955 S.W.2d at 89 (Tex. Crim. App. 1997) (quoting Villarreal v.
State, 935 S.W.2d 134, 139-41 (Tex. Crim. App. 1996)(Mansfield J. Concurring).
The appellate courts, including this Court, should afford the same amount of
deference to trial courts' rulings on "application of law to fact questions," also
known as "mixed questions of law and fact," if the resolution of those ultimate
questions turns on an evaluation of credibility and demeanor. Id.
In a claim for ineffective assistance of counsel, the defendant must show: (1)
his attorney’s representation fell below an objective standard of reasonableness;
and (2) there is a reasonable probability that, but for his attorney’s errors, the result
of the proceeding would have been different. See Strickland v. Washington, 466
U.S. 668, 687 (1984). A defendant has the burden to prove a claim of ineffective
assistance of counsel by a preponderance of the evidence. Moore v. State, 694
7 S.W.2d 528, 531 (Tex. Crim. App. 1985). A defendant’s failure to show either
deficient representation or prejudice will defeat a claim of ineffective assistance of
counsel. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). Nothing
required Ms. Miller to advise Appellant of the consequences of pleading and the
rights that he will be waiving on the record, merely that the act have been
accomplished prior to the plea.
Here, the trial court found that Ms. Miller provided credible testimony that
Mr. Singleterry had admonished Appellant of the consequences of his plea in
Spanish. See CR 139, 142. Ms. Miller’s duty as Appellant’s counsel was to insure
that he was advised of the consequences of the plea; she was not required to
personally advise him of the consequences if another attorney representing
Appellant did in fact advise him of the consequences. Appellant was so advised by
a competent attorney in Mr. Singleterry. CR 131, 139. This is further supported
by the fact that the plea paperwork was signed by both Appellant and Mr.
Singleterry. CR 103-06. Further, Appellant acknowledges that he and Mr.
Singleterry signed the plea admonishment paperwork. 2 RR 12-13. Appellant had
also acknowledged having his rights and the plea admonishments explained at his
plea. CR 60-65. Additionally, Appellant was admonished of the consequences by
the Trial Court. See CR 60-69. As such, Appellant can show neither deficient
performance, nor prejudice.
8 Appellant cannot show prejudice as he cannot show that but for the claimed
performance, the outcome would have been different. Here Appellant claimed, on
application for writ, that the deficient performance was Ms. Miller’s failure to
explain the consequences of his plea. However, Appellant was informed of the
consequences and the rights he was waiving by the Trial Court and Mr.
Singleterry. CR 60-69; 103-06. Given that Appellant was made aware of the
consequences of his plea; he cannot now claim that knowledge of these
consequences from Ms. Miller would have made him change his plea. Further,
Appellant never testified that he would have changed his plea or that he would
have wanted to go to trial if only some right or consequence had been explained to
him. 6 2 RR 9-14.
6 The references in Appellant’s application that he would not have plead if Ms. Miller had advised him of the immigration consequences was not a sworn statement by Appellant. Further, a sworn statement alone from an applicant is insufficient to support a finding by a trial court. See Garcia, 353 S.W.3d at 789. Counsel is now required to inform a defendant of the immigration consequences. See Padilla v. Kentucky, 559 U.S. 356, 367 (U.S. 2010). However, Padilla is not retroactive. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Appellant plead guilty to this offense nearly 9 years before Padilla was decided. Ms. Miller was under no duty to inform Applicant of the immigration consequences. 9 PRAYER FOR RELIEF
WHEREFORE, the State of Texas respectfully requests that the Order of the
Trial Court be, in all things, AFFIRMED.
Respectfully submitted,
RICARDO RODRIGUEZ, JR. CRIMINAL DISTRICT ATTORNEY HIDALGO COUNTY TEXAS
__/s/ Michael W. Morris__________ Michael W. Morris, Assistant Criminal District Attorney
State Bar No. 24076880
Office of Criminal District Attorney Hidalgo County Courthouse 100 N. Closner Blvd. Edinburg, Texas 78539 Telephone: (956) 318-2300 ext. 781 Telefax: (956) 380-0407 Email: michael.morris@da.co.hidalgo.tx.us
100 N. Closner Blvd. Edinburg, Texas 78539 Telephone: (956) 318-2300 ext. 781 Telefax: (956) 380-0407
10 Certificate of Compliance
I hereby certify that this document has the following number of words:
A. Initial documents—beginning at cover page and ending at Note as to Oral Argument: 833 words
B. Brief: 2378 words
C. Total: 3211 words
__/s/ Michael W. Morris__________ Michael W. Morris, Assistant Criminal District Attorney
Office of Criminal District Attorney Hidalgo County Courthouse 100 N. Closner Blvd. Edinburg, Texas 78539 Telephone: (956) 318-2300 ext. 781 Telefax: (956) 380-0407
11 CERTIFICATE OF DELIVERY
This is to certify that a true and correct copy of the foregoing Brief of
State/Appellee was sent to Appellant’s attorney of record, Carlos M. Garcia
through the electronic filing service on March 20, 2015.
__/s/ Michael W. Morris_______ Michael W. Morris