Case Information
*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 5/15/2015 3:54:58 PM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-14-00441-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 5/15/2015 3:54:58 PM DORIAN RAMIREZ CLERK No. 13-14-00441-CR
IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI – EDINBURG, TEXAS RENE FRANCISCO AGUILERA, Appellant
v.
STATE OF TEXAS
Appellee O N A PPEAL FROM THE 206 TH D ISTRICT C OURT OF H IDALGO C OUNTY , T EXAS
C AUSE N O . CR-1836-00-D(1)
APPELLANT’S REPLY BRIEF Carlos Moctezuma Garcia Texas Bar No. 24065265 Email: cgarcia@garciagarcialaw.com Garcia & Garcia Attorneys at Law, P.L.L.C.
4905-A N. McColl McAllen, TX 78504 Tel: (956) 630-3889 Fax: (956) 630-3899 Attorney for Appellant ORAL ARGUMENT REQUESTED *2 LIST OF PARTIES
Appellant
Rene Francisco Aguilera
Appellee
The State of Texas
Appellant’s Counsel at Trial State’s Attorney at Trial
Carlos Moctezuma Garcia Mr. Rene Guerra
SBOT: 24065265 District Attorney
SBOT: 08578200 Garcia & Garcia
Attorneys at Law, P.L.L.C. Mr. Michael Morris
4905-A N. McColl Assistant District Attorney
McAllen, Texas 78504 SBOT: 24076880
Hidalgo County District Attorney 100 N. Closner, 3rd Floor Edinburg, Texas 78539 Appellant’s Attorney on Appeal State’s Attorney on Appeal
Carlos Moctezuma Garcia Mr. Michael W. Morris
SBOT: 24065265 Assistant District Attorney
SBOT: 24076880 Garcia & Garcia
Attorneys at Law, P.L.L.C. Office of Criminal District Attorney
4905-A N. McColl Hidalgo County Courthouse
McAllen, Texas 78504 100 N. Closner
Edinburg, Texas 78539 *3 TABLE OF CONTENTS
LIST OF PARTIES................................................................................................... 2
TABLE OF CONTENTS ......................................................................................... 3
TABLE OF AUTHORITIES .................................................................................... 4
ARGUMENT............................................................................................................ 6
I. THE APPELLEE’S ARGUMENT THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IGNORES THE TRIAL COURT’S STATED REASONS FOR DENYING THE WRIT. .......................................................... 6 A. Appellee’s attempt to distinguish the applicable case law based on the procedures mandated by the Article 11.07 versus Article 11.072 of the Texas Code of Criminal Procedure are not material................................................. 6 B. Appellee’s insistence that the Trial Court is entitled to rely on credibility ignores other evidence in the record that point to actual innocence........................................................................................................ 7 II. APPELLEE’S ASSERTION THAT A RECANTATION IS NOT NEW EVIDENCE HAS NO LEGAL SUPPORT....................................................... 10 III. APPELLEE’S INTERPRETATION OF SCHLUP IS NOT SUPPORTED BY THE APPLICABLE CASE LAW. ............................................................. 12 IV. THE CREDIBILITY OF SUSAN MILLER’S TESTIMONY IS NOT DISPOSITIVE OF WHETHER APPLICANT RECEIVED HIS CONSTITUTIONAL RIGHT TO COMPETENT COUNSEL......................... 13 V. APPELLEE’S CLAIM THAT PETITIONER’S COUNSEL OF RECORD WAS NOT REQUIRED TO ADVISE HIM OF THE CONSEQUENCE OF HIS PLEA CANNOT SUPPORT THE GREAT WEIGHT OF CONTRARY AUTHORITY.................................................................................................... 14 VI. CONCLUSION AND PRAYER................................................................ 16
CERTIFICATE OF SERVICE ............................................................................... 18
CERTIFICATE OF COMPLIANCE...................................................................... 18
TABLE OF AUTHORITIES Cases
Brady v. State , 771 S.W.2d 734 (Tex. App. 1989) ................................................. 11
Damron v. State , 570 S.W.2d. 933 (Tex.Crim.App. 1978) .................................... 11
Drew v. State , 743 S.W.2d 207 (Tex.Crim.App. 1987)...................................... 8, 10
Ex Parte Franklin , 72 S.W.3d 671 (Tex.Crim.App. 2002) .................................... 11
Ex Parte Garcia , 353 S.W.3d 785 (Tex.Crim.App. 2011) ................................... 7, 8
Ex Parte Harrington , 310 S.W.3d 452 (Tex.Crim.App. 2010) ........................ 13, 15
Ex Parte Jessep , 281 S.W.3d 675 (Tex.App. 2009) ................................................. 9
Ex parte Martinez , 330 S.W.3d 891 (Tex. Crim. App. 2011) ................................ 14
Ex parte Nailor , 149 S.W.3d 125 (Tex. Crim. App. 2004) .................................... 13
Ex parte Navarijo , 433 S.W.3d 558 (Tex.Crim.App. 2014) ................................ 6, 7
Ex parte Reed , 271 S.W.3d 698 (Tex.Crim.App. 2008)....................................... 6, 7
Ex Parte Reedy, 282 S.W.3d 492 (Tex.Crim.App. 2009) ...................................... 15
Ex Parte Sparks , 206 S.W.3d 680 (Tex.Crim.App. 2006) ....................................... 9
Ex parte Spencer , 337 S.W.3d 869 (Tex.Crim.App. 2011).................................... 10
Ex parte Tuley, 109 S.W.3d 388 (Tex.Crim.App. 2002)........................................ 10
Ex parte Welborn , 785 S.W.2d 391 (Tex.Crim.App. 1990) ................................... 15
Guzman v. State , 955 S.W.2d 85 (Tex.Crim.App. 1997) ..................................... 7, 8
Herrera v. Collins , 506 U.S. 390 (1993) ................................................................ 11
McKittrick v. State , 541 S.W.2d 117 (Tex.Crim.App. 1976) ................................... 7
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ........... 11, 12
Self v. State , 709 S.W.2d 662 (Tex.Crim.App. 1986)............................................... 8
Statutes
Tex. Health & Safety Code § 481.121.................................................................... 11
Texas Code of Criminal Procedure Article 11.07 .................................................... 6
Texas Code of Criminal Procedure Article 11.072 .................................................. 6
Rules
Texas Rule Appellate Procedure 38.3 ...................................................................... 6
T O THE H ONORABLE C OURT OF A PPEALS :
Appellant Rene Francisco Aguilera submits this reply to Appellee’s brief pursuant to Tex. R. App. Proc. 38.3.
ARGUMENT I. THE APPELLEE’S ARGUMENT THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IGNORES THE TRIAL COURT’S STATED REASONS FOR DENYING THE WRIT. A. Appellee’s attempt to distinguish the applicable case law based on the procedures mandated by the Article 11.07 versus Article 11.072 of the Texas Code of Criminal Procedure are not material.
Appellee states without any citation or explanation, that Appellant cited cases that are inapplicable to the proceedings based on Art. 11.072 of the Texas
Code of Criminal Procedure. Appellee Brief [1] (“AB”) 2. Assuming that Appellee
was referring to the cases Appellant cited regarding the standard of review of fact
determinations, Ex parte Reed , 271 S.W.3d 698, 727 (Tex.Crim.App. 2008) and Ex
parte Navarijo , 433 S.W.3d 558, 567 (Tex.Crim.App. 2014), these allegations are
without merit.
*7 While the distinction between cases arising under articles 11.07 and 11.072
of the Texas Code of Criminal Procedure explained in Ex Parte Garcia , 353
S.W.3d 785, 787-88 (Tex.Crim.App. 2011) and cited by Appellee is correct,
Appellant’s does not cite to Ex parte Reed or Ex parte Navarijo for the purposes
stated by Appellee. Appellant relies on Ex parte Reed and Ex parte Navarijo for
the proposition that a factual determination that is not supported by the record is
not entitled to deference. This is not incongruous with the rule set forth in Ex Parte
Garcia , or Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), nor does it
contradict the precedent of the Court of Criminal Appeals that permit an appellate
court to review whether the facts are supported by the record. See McKittrick v.
State , 541 S.W.2d 117 (Tex.Crim.App. 1976).
B. Appellee’s insistence that the Trial Court is entitled to rely on credibility ignores other evidence in the record that point to actual innocence.
Appellee’s main argument in defense of the Trial Court’s decision denying Pettioner’s writ is that it was premised on an unassailable credibility determination,
namely that the Trial Court did not believe Petitioner and Lorena Martinez’s
recantation. AB 2-4. The Appellee argues that the Trial Court is the fact finder and
is entitled to make credibility determinations that cannot be refuted upon review.
Id. 3.
At no time, however, does the Appellee consider the stated basis for the Trial Court’s credibility determination from the findings of fact and conclusions of
law, which clearly state the Trial Court’s factual bases and as well as the reasoning
underlying her conclusions. The Trial Court made the following credibility
findings:
• The Trial Court found that Appellant’s testimony regarding his actual innocence was not credible, “in the face of the offense report submitted into evidence in the underlying case.” CR 140.
• The Trial Court found that Appellant’s testimony regarding whether Mr. Singleterry explained the contents of the plea bargain was not credible in light of Appellant’s testimony at his plea hearing “which directly contradicts” his claim. CR 140.
• The Trial Court found that Ms. Martinez’s testimony was not credible citing Drew v. State , 743 S.W.2d 207, 228 (Tex.Crim.App. 1987). CR 140. According to the Appellee, under the standard set forth in Guzman v. State and
adopted by Ex Parte Garcia , a reviewing court has no ability to disturb a Trial
Court’s factual finding. This is a misstatement of the applicable law. Neither
precedent cited grants absolute deference to a Trial Court’s holding. Guzman
allows for deference when the credibility determination is supported by the record .
Guzman , 955 S.W.2d at 89. Whether the underlying record supports a credibility
determination is a question for the reviewing court. Self v. State , 709 S.W.2d 662,
665 (Tex.Crim.App. 1986). Merely couching the findings of fact as a credibility
determination does not excuse the requirement from Guzman that the record
support the credibility determination.
Appellant argued in its brief to the Court that the Trial Court’s finding on Appellant’s credibility is not supported by the evidence in the record and is not
entitled to deference. Appellant argues that the record does not support the Trial
Court’s credibility determinations relying on the Trial Court’s stated bases for its
determinations . This is not a request for a de novo finding of fact, but rather a
request for legal review of the sufficiency of the evidence necessary to support a
finding of fact. See Ex Parte Jessep , 281 S.W.3d 675, 679-80 (Tex.App.
2009)(finding that while challenges to legal sufficiency of evidence are generally
not cognizable on an application for a writ of habeas corpus, an exception exists
for a claim of actual innocence even when the applicant previously pleaded guilty
and confessed, citing Ex Parte Sparks , 206 S.W.3d 680, 683 (Tex.Crim.App.
2006)).
Appellant is asking to court to evaluate the Trial Court’s stated basis for its finding of fact, and determine whether this is sufficient to uphold its determination.
Appellant alleges that it is not, because the Trial Court’s reasoning is deeply
flawed. The Trial Court says that because Appellant earlier confessed to a crime,
that his later recantation is invalid because of his original confession. Texas courts
have rejected this reasoning. The Trial Court argues that Ms. Martinez is not
credible because she cannot be convicted for recanting her earlier testimony
undermining her later confession. Texas courts have adopted new standards for
evaluating confessions that limit the holding of Drew v. State , 743 S.W.2d 207
(Tex.Crim.App. 1987). See Ex parte Tuley, 109 S.W.3d 388 (Tex.Crim.App.
2002); Ex parte Spencer , 337 S.W.3d 869 (Tex.Crim.App. 2011); Ex parte
Elizondo , 947 S.W.2d 202 (Tex.Crim.App. 1996). Appellee ignores this precedent,
and instead requests that the Court utilize the blanket of deference to a credibility
determination to prevent meaningful review of a fact finding that contained no
reasoning traditionally associated with credibility determinations, but relies simply
upon blind adherence to stare decisis to the prior facts.
II. APPELLEE’S ASSERTION THAT A RECANTATION IS NOT NEW EVIDENCE HAS NO LEGAL SUPPORT.
Appellee argues that Appellant produced no new evidence in support of his claims of actual innocence, because there was no credible supporting evidence to
his recanted confession. AB 5. Appellee’s assertion ignores the new evidence
provided by Appellant’s recantation testimony, together with Ms. Martinez’s
acceptance of responsibility, which is new evidence that permits an evaluation of
the evidence of the other evidence in the record in a new light.
Viewing the evidence that exists for conviction without a confession, as Appellant has urged, demonstrates that without Appellant’s confession and Ms.
Martinez’s testimony implicating Appellant, the remaining evidence is insufficient
to uphold a conviction.
In response, Appellee asserts that Appellant would somehow still been guilty of an offense under Tex. Health & Safety Code § 481.121, because
“[a]ppellant would have had to [sic] been aware that he did not know of the
marijuana in the bedroom.” AB 5. That is a misstatement of the evidence necessary
to sustain a conviction under § 481.121, which requires a Defendant to have
“exercised care, control, and management” over the marijuana. Brady v. State , 771
S.W.2d 734, 735 (Tex. App. 1989). Appellant could not have been found to have
exercised care, control, and management over marijuana that was stored in a
separate room of a house that he did not own, nor did he enjoy exclusive
possession. Damron v. State , 570 S.W.2d. 933, 934 (Tex.Crim.App. 1978).
Appellee incorrectly asserts that without his confession, Appellant would have
nevertheless been found guilty of an offense under § 481.121, which is not true
upon review of the facts of this case.
III. APPELLEE’S INTERPRETATION OF SCHLUP IS NOT SUPPORTED BY THE APPLICABLE CASE LAW.
Appellee insists that a Schlup claim can only be raised after a prior writ asserting an actual innocence claim under Herrera v. Collins , 506 U.S. 390 (1993)
has been denied, citing Ex Parte Elizondo , 947 S.W.2d 202, 208 (Tex.Crim.App.
1996), and Ex Parte Franklin , 72 S.W.3d 671, 675 (Tex.Crim.App. 2002). AB 6;
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Neither Ex
Parte Elizondo nor Ex Parte Franklin can be read for the proposition Appellee
cites. Both of the cases cited distinguish Herrera from Schlup claims referring only
to the types of actual innocence claims presented in the habeas petition. In a
Herrera claim, new exculpatory evidence is presented that does not require proof
of a constitutional violation at trial. Ex Parte Elizondo , 947 S.W.2d at 208; Ex
Parte Franklin , 72 S.W.3d at 675-76. Neither case imposes a requirement that a
Schlup claim be “procedurally barred”, as Appellee claims. Assuming arguendo
that Schlup claims must be otherwise barred, the “bar” at issue is the bar of direct
appeal, not habeas. In this case, Appellant is barred from raising the 6th
Amendment claims on direct appeal because he missed his deadline to appeal his
original conviction. His only vehicle for presenting the otherwise barred 6th
Amendment case is a habeas petition.
IV. THE CREDIBILITY OF SUSAN MILLER’S TESTIMONY IS NOT DISPOSITIVE OF WHETHER APPLICANT RECEIVED HIS CONSTITUTIONAL RIGHT TO COMPETENT COUNSEL.
Appellee argues that the standard of review of mixed questions of fact and law accord great deference to legal conclusions based on credibility determination.
AB 7. Appellee argues that Appellant’s original trial counsel, Susan Miller offered
credible testimony that Appellant had been admonished of the consequences of his
plea in Spanish. AB 8; CR 139, 142. The mere fact that the Trial Court found this
testimony credible does not limit this Court from determining whether that
evidence, if true, is sufficient to support the Trial Court’s finding that Ms. Miller
complied with her Sixth Amendment duty to provide competent counsel. Ex Parte
Harrington , 310 S.W.3d 452, 458-59 (Tex.Crim.App. 2010). Ineffective assistance
of counsel claims are evaluated under the “totality of the representation” standard,
requiring the reviewing court to “analyze all allegations of deficient performance,
decide whether counsel's conduct was constitutionally deficient, and, if so, then
consider whether those specific deficient acts or omissions, in their totality,
prejudiced the defense.” Ex parte Nailor , 149 S.W.3d 125, 130 (Tex. Crim. App.
2004).
Reviewing Ms. Miller’s statements in the most favorable light does not support a claim that she provided competent counsel. Ms. Miller admits that she
had no knowledge of Appellant’s case, had no file on Appellant’s case, was not
previously his attorney of record, could not communicate with Appellant because
of a language barrier, and did not advise him of the consequences of his plea. If
anything finding that Ms. Miller’s statement is credible supports a finding that her
representation was insufficient and incompetent under the Sixth Amendment.
Appellee’s only reference to credible testimony in support of a finding that Ms. Miller’s representation met the Sixth Amendment standards is her hearsay
statement that “Mr. Singleterry had admonished Appellant of the consequences of
his plea in Spanish.” AB 8. Appellee does not address whether this is sufficient to
meet the Sixth Amendment right to competent counsel, only that Ms. Miller’s
testimony was credible insofar as she believed that someone had previously
provided him with competent counsel. Nevertheless, Appellee admits that “Ms.
Miller’s duty as Appellant’s counsel was to insure that he was advised of the
consequences of his plea.” AB 8. In light of her own admission that she had no
personal knowledge of whether this was actually done, her credible testimony is
not dispositive of the Appellant’s Sixth Amendment arguments.
V. APPELLEE’S CLAIM THAT PETITIONER’S COUNSEL OF RECORD WAS NOT REQUIRED TO ADVISE HIM OF THE CONSEQUENCE OF HIS PLEA CANNOT SUPPORT THE GREAT WEIGHT OF CONTRARY AUTHORITY.
Appellee asserts that Ms. Miller had no duty to “personally advise [Appellant] of the consequences of his plea if another attorney representing
Appellant did in fact advise him of the consequences.” AB 8. Appellee offers no
authority to support this statement.
Appellant has already presented the Court with detailed analysis of how Ms.
Miller’s representation was deficient and in violation of the applicable Texas
Disciplinary Rules of Professional Conduct. See also , Ex parte Martinez , 330
S.W.3d 891, 900 (Tex. Crim. App. 2011)(defining deficient representation as
performance “that fell below an objective standard of reasonableness ... under
prevailing professional norms” and according to the necessity of the case.)
Whether Ms. Miller believed that Appellant had been admonished does not
excuse her from personally confirming with her client that he had been properly
admonished and that he understood what he was about to present to the Trial
Court. Ms. Miller cannot delegate that duty. As the Court of Criminal Appeals
explained,
[a] criminal-defense attorney ‘ must have a firm command of the facts of the case’ before he or she may render reasonably effective assistance of counsel. Counsel has a duty to provide advice to his client about what pleas to enter, and that advice should be informed by an adequate investigation of the facts of the case or be based on a reasonable decision that investigation was unnecessary . When counsel’s representation falls below this standard, it renders any resulting guilty plea involuntary.
Ex Parte Harrington , 310 S.W.3d at 458 (citing Ex parte Welborn , 785 S.W.2d
391, 393 (Tex.Crim.App. 1990) and Ex Parte Reedy, 282 S.W.3d 492, 500
(Tex.Crim.App. 2009))(emphasis added). Ms. Miller admitted that she did not
know the facts of the case, and could not engage in any reasonable investigation
because she could not communicate with her client.
If the Court accepts Appellee’s justification of Ms. Miller’s actions, it will erode the meaning of Sixth Amendment right to competent counsel. Criminal
defense attorneys can always blame the last person to touch the file, or otherwise
delegate their constitutional duty to another attorney. Lost in the resulting finger-
pointing is the harm to the criminal defendant, who like Appellant in this case,
neither has sufficient command of the English language, and as an immigrant, is
unfamiliar with U.S. institutions and our constitution. Such as result is an
unacceptable interpretation of a criminal defendant’s constitutional rights and must
be rejected by this Court.
VI. CONCLUSION AND PRAYER
Appellee requests that the Court uphold the Trial Court on the theory that all of the relevant factual findings and legal conclusions were entitled to great
deference as credibility determinations. Additionally, Appellee erroneously states
that Appellant would have been found guilty of the underlying offense even if he
hadn’t confessed guilt. Finally, Appellee asserts that criminal defense attorney can
delegate her duty of investigation and knowledge of the facts of the case. Appellant
urges the Court to reject these erroneous interpretations of applicable law and
evaluate whether Appellant received adequate counsel and can be found guilty of a
crime where another person has accepted responsibility.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
vacate the trial court’s judgment of guilt and grant him a new trial. In the
alternative, Appellant prays that this Court vacate the trial court’s judgment on his
application for a writ of habeas corpus and remand his case for further
proceedings, or for such relief to which he may be entitled.
Respectfully submitted, /s/ Carlos Moctezuma García Carlos Moctezuma García SBOT: 24065265
Email: cgarcia@garciagarcialaw.com García & García
Attorneys at Law, P.L.L.C.
4905-A N. McColl McAllen, TX 78504 Tel: (956) 630-3889 Fax: (956) 630-3899 Attorneys for Appellant *18 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing brief was served on the Hidalgo County District Attorney by e-filing notification on April 9, 2015.
/s/ Carlos M. García Carlos M. García
CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the Texas Rule of Appellate Procedure 9.4. The computer-generated word count for this document is 2,550
words, including headers and footers.
/s/ Carlos M. García Carlos M. García
[1] For the purposes of citing to the record in this case, the following abbreviations are used. For citing to the official transcript: TR (Transcript Record).1 (volume of the record): 1 (page number). Thus TR.1: 1, references Volume 1, page 1 of the appeal record. For citations to the clerk’s Record: CR (Clerk’s Record) 1 (page number). Thus CR 1, references page 1 of the Clerk’s Record.