Jose Pablo Hernandez v. State ( 2015 )

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
CASE PAGE
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
CASE PAGE
Wiggins v. Smith, 590 U.S. 510, 123 S. Ct. 2527,
156 L. Ed. 2d 471 (2003)…………………………......................13, 18, 25
Will. 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
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
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.
1. Argument and Authorities
a. Counsel’s representation fell below an objective standard of
reasonableness.
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
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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
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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).
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
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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.
Crim. App. 1992).
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
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.
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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.
1. Argument and Authorities
a. Counsel’s representation fell below an objective standard of
reasonableness.
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.
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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
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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).
b. The deficient performance prejudiced appellant’s defense.
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
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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
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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
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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
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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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