Vigil, Vanda ( 2015 )

PD-0740-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/14/2015 7:08:06 PM
Accepted 7/16/2015 5:05:19 PM
ABEL ACOSTA
CLERK
CAUSE NO. PD-0740-15
____________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
____________________________________________
THE STATE OF TEXAS
Respondent/ Appellant
v.
VANDA VIGIL
Petitioner/ Appellee
_____________________________________________________________
FROM THE COUNTY COURT AT LAW NUMBER SEVEN
TRIAL COURT NO. 20120C10835
THE COURT OF APPEALS EIGHTH DISTRICT OF TEXAS
NO. 08-13-00273-CR
____________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_____________________________________________________________
WILLIAM W. NAVIDOMSKIS
Counsel for Petitioner,Vanda Vigil
701 St. Vrain
El Paso, Texas 79902
Tel: (915) 730-8644
July 16, 2015 Fax: (915) 975-8028
SBN 24053384
defense@weslawyer.com
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
PETITIONER: Vanda Vigil, represented in Trial and on Appeal by:
William W. Navidomskis
711 Myrtle Street
El Paso, Texas 79901
RESPONDENT: The State of Texas represented Appeal by:
Jaime Esparza, District Attorney
Ronald Banerji, Assistant District Attorney
500 E. San Antonio
El Paso, Texas 79901
Trial Counsel:
Jaime Esparza, District Attorney
Alejandro Cuellar, Assistant District Attorney
Sarah Rogness, Assistant District Attorney
Patrick Sloan, Assistant District Attorney
500 E. San Antonio
El Paso, Texas 79901
TRIAL COURT: County Court at Law Number Seven, El Paso, Texas, the
Honorable Tom Spieczny, Presiding.
i
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL..............................................i
TABLE OF CONTENTS.....................................................................................ii, iii
INDEX OF AUTHORITIES.................................................................................iv, v
STATEMENT REGARDING ORAL ARGUMENT.................................................1
STATEMENT OF THE CASE AND.........................................................................1
STATEMENT OF PROCEDURAL HISTORY........................................................1
GROUNDS PRESENTED.........................................................................................2
ARGUMENT..............................................................................................................3
1. The court of appeals’ ruling that the evidence supporting a conviction is legally
sufficient whenever the trier of fact believes the testimony of the victim alone
conflicts with decisions of the United States Supreme Court..........................3
2. By treating the legal sufficiency test of whether “any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt”
as established whenever the victim’s testimony alone is believed by the trier
of fact, the court of appeals has decided a case which conflicts with decisions
of the United States Supreme Court and with decisions of this Court...........6
3. The court of appeals’ decision to vacate the trial court’s order granting a new
trial on legal insufficiency grounds when there were no eyewitnesses
connecting Petitioner Vigil to the assault and the State confessed error on this
point conflicts with applicable decisions of this Court ...................................9
4. The court of appeals’ ruling that a reviewing court can “infer” that a defendant
is a primary actor in an assault case involving multiple assailants without
identifying the specific conduct the defendant engaged in conflicts with
applicable decisions of this Court ..................................................................11
ii
5. The court of appeals’ determination that the manner and means paragraphs
alleged in a charging instrument which are descriptive of an essential element
of the charged offense are mere surplusage conflicts with applicable decisions
of this Court....................................................................................................14
6. The court of appeals departed from the Jackson v. Virginia legal sufficiency
test by measuring the sufficiency of the evidence against a charge which was
hypothetically incorrect because it failed to considering the manner and means
allegations of the charging instrument ...........................................................16
7. The court of appeals’ treatment of the manner and means paragraphs of a
charging instrument as mere surplusage conflicts with decisions of the U.S.
Supreme Court which require a charging instrument to provide a defendant
with fair and adequate notice of the offense charged.......................................18
PRAYER....................................................................................................................19
CERTIFICATE OF COMPLIANCE.........................................................................21
CERTIFICATE OF SERVICE..................................................................................21
APPENDIX................................................................................................................22
iii
INDEX OF AUTHORITIES
FEDERAL CASES PAGES
Hamling v. United States, 418 U.S. 87, 117 (1974)................................................19
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)........................4, 5, 6, 7, 8, 9, 16
McKoy v. North Carolina, 494 U.S. 433, 449 (1990)..............................................18
Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion).....................................18
STATE CASES
Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011)......................................17
Durham v. State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929)...........................13
Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970 at *8).....................7, 8
Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App.2007)......................................15
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007).......................................7
Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010)................................5
Jefferson v. State, 189 S.W.3d 305 (Tex.Crim.App. 2006).....................................18
Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011)....................................6
Malik v. State, 956 S.W.2d 234 (Tex.Crim.App. 1997).....................................16, 17
McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974).............................13
Ransom v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994).......................12
iv
Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002)................................11
Sanchez v. State, 376 S.W.3d 767, 772 (2012).......................................................16
Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009)......................................15
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)......................................18
Williams v. State, 235 S.W.3d 742 (Tex. Crim.App. 2007).......................................7
v
STATEMENT REGARDING ORAL ARGUMENT
Petitioner, Vanda Vigil, hereby waives oral argument.
STATEMENT OF THE CASE
This petition concerns the decision of the court of appeals to vacate and set
aside a trial court’s order granting a new trial after the Petitioner, Vanda Vigil, was
convicted of the criminal offense of Class “A” assault. Vigil based her motion for
new trial in part on allegations that the evidence was legal insufficienct to support the
verdict. After conducting a hearing on Petitioner’s motion for new trial and hearing
argument from both the State and Defense, the trial court granted Vanda Vigil’s
motion for new trial.
STATEMENT OF PROCEDURAL HISTORY
1. The court of appeals handed down its opinion on May 15, 2015.
2. No motion for rehearing was filed.
Page -1-
QUESTIONS PRESENTED FOR REVIEW
1. Did the court of appeals err in holding that it is well-established rule or test of
legal sufficiency that the victim’s testimony alone, if believed, is legally
sufficient to support a conviction?
2. Did the court of appeals err in treating the Jackson v. Virginia legal sufficiency
test of whether “any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt” as established whenever
the victim’s testimony is believed by trier of fact?
3. Was it proper for the court of appeals to disregard the trial court’s order
granting a new trial on legal insufficiency grounds when there were no
eyewitnesses connecting Petitioner Vigil to the alleged assault, especially since
the State confessed error on this point?
4. Was it error for court of appeals to rule that a reviewing court can “infer” that
a defendant was a primary actor in any assault involving multiple assailants
without identifying the specific conduct which was engaged in by that
defendant?
5. Did the court of appeals err by treating the manner and means paragraphs
alleged in the charging instrument as mere surplusage, when these allegations
were descriptive of an essential element of the charged offense?
6. Did the court of appeals depart from the Jackson v. Virginia legal sufficiency
test by measuring the sufficiency of the evidence against a charge which was
hypothetically incorrect because it failed to take into consideration the manner
and means allegations of the charging instrument?
7. Can a court of appeals treat the manner and means paragraphs set out in a
charging instrument as mere surplusage when decisions of the U.S. Supreme
Court which require a charging instrument provide a defendant with fair and
adequate notice of the offense charged?
Page -2-
ARGUMENT
1. The court of appeals’ ruling that the evidence supporting a conviction is
legally sufficient whenever the trier of fact believes the testimony of the
victim alone conflicts with decisions of the United States Supreme Court
Petitioner, Vanda Vigil, was convicted after a jury trial for Class “A” assault.
The complaining witness, Elizabeth Jimenez, testified that she was attempting to exit
Coconut’s Bar when she was attacked from behind by Petitioner Vigil and Vigil’s
daughter, Alexis Gonzalez. RR 3, 10. Jimenez was asked by the prosecutor, “How
did they attack you?” (Id.), and replied:
As I was leaving, I felt Alexis grabbing for my right breast, I guess, and she
started hitting me on my head, and then Vanda got in and started pulling my
hair and hitting me on the head. And that’s when I fell. RR 3,10.
When asked, “Did you fight back at all?”, Jimenez replied: “I – I wasn’t even able to.
I did not even see them attacking me.” Id. Jimenez testified that right after she fell to
the floor a bouncer separated her from her attackers. Jimenez’ cousin, Cecilia
Archuleta, was also present in Coconuts’ bar. Id. Like Jimenez, Archuleta failed to
link Vigil to the assault and commented that “It all happened so quick.” RR 3, 26-29.
Stephanie Chavez, a defense witness, testified that she did not see Vigil pull
anyone’s hair, punch anyone, or engage in any violence. RR 3, 73. Petitioner Vigil
also took the stand. She testified that she had witnessed Jimenez instigate the matter
with her daughter, Alexis Gonzalez, by calling her daughter a “disgusting lesbian”
Page -3-
and then pushing her daughter. RR 3, 81-82. Vigil indicated the pushing incident
between Jimenez and her daughter resulted in the two falling to the floor, at which
time a bouncer intervened and separated them. RR 3, 83. Vigil testified that the entire
incident “happened like seconds. It was literally seconds” and that she did not strike
or injure Jimenez in any way, but only approached “to go help [her] daughter get up,
try to separate her, or something.” RR 3, 83.
On page 6 of its opinion, the court of appeals acknowledges Vigil’s contention
that the evidence was legal insufficient as to (1) the identity of Vigil as the perpetrator
of the Class “A” assault offense; and (2) the causation element of this alleged
offense. But on the next page of its opinion, it rejects Vigil’s contention that the
evidence was legally insufficient as to the identity element:
We agree with Vigil that, from a direct evidence standpoint, the identity issue
ultimately boils down to a he-said, she-said dispute turning on the testimony
of a single witness: Jimenez. However, it is well-established that the victim’s
testimony alone, if believed, is legally sufficient to support a conviction. See
Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970, at *8 (Tex.App.–El
Paso Feb. 8, 2012, no pet.) (not designated for publication).
This analysis conflicts with the analysis adopted by the Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979), wherein the following legal
sufficiency test was created: “Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
Page -4-
could have found the essential elements of the crime beyond a reasonable doubt.” Id.,
at 319 (emph. added). Under Jackson, a reviewing court is not permitted to forego
review of the evidence for legal sufficiency merely because the trier of fact believed
the victim of a crime. A reviewing court is obligated to determine whether any
rational trier of fact could find all of the essential elements of the offense charged
beyond a reasonable doubt.
The court of appeals asserts on page 7 of its opinion that it cannot act as
a “thirteenth juror” and cites to case law applicable to a factual sufficiency review.
(See Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010). But this case
authority is inapplicable to Vigil’s case because Vigil has raised a legal sufficiency
challenge to her conviction -- not a factual sufficiency challenge. Under a legal
sufficiency analysis, the court of appeals should have found the evidence legally
insufficient because Jimenez readily admitted that she did not observe either Vigil
or the other alleged assailant strike her or injure her in any way. When asked if she
had fought back after being attacked from behind, Vigil testified, “I wasn’t even able
to. I did not even see them attacking me.” RR 3, 10.
There is no basis for the court of appeals’ holding that if a victim’s testimony
is believed by the trier of fact, the legal sufficiency of evidence cannot be challenged.
Under Jackson v. Virginia, no such requirement is imposed. The only inquiry is
Page -5-
whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.
2. By treating the legal sufficiency test of whether “any rational trier of fact
could have found the essential elements of the offense beyond a reasonable
doubt” as established whenever the victim’s testimony alone is believed by
the trier of fact, the court of appeals has decided a case which conflicts
with decisions of the United States Supreme Court and with decisions of
this Court
On page 6 of its opinion the court of appeals set forth the following test for
determining whether the evidence was legally sufficient to support a conviction:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence
and reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt.
It then cited to Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011) and to
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) as authority for this legal
sufficiency test. But on the next page of its opinion, it substituted the following legal
sufficiency test for the Jackson legal sufficiency test in addressing Vigil’s legal
sufficiency challenge to the identity element of the assault offense charged:
“However, it is well-established that the victim’s testimony alone, if believed, is
legally sufficient to support a conviction.” As support for this version of the legal
Page -6-
sufficiency test, the court of appeals cited to its unpublished decision in Gomez v.
State, No. 08-10-00276-CR, 2012 WL 390970 at *8).
The U.S. Supreme Court held that the test of legal sufficiency is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, at 319 (1979). In Jackson, the Supreme
Court did not attach any significance to whether the eyewitness to an alleged offense
is the alleged victim or a mere observer. Nor did it attach any significance to whether
or not the trier of fact believed the alleged victim’s testimony. It did not attempt to
identify any type of evidence which was inherently credible or would withstand a
legal sufficiency challenge. Since Jackson was decided, the Supreme Court has not
once carved an exception to or otherwise modified the legal sufficiency test it created.
The test of legal sufficiency is and remains the same.
The same is true of this Court’s analysis. Based on the Jackson test, it has
stated, "...we consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, a
rational juror could have found the essential elements of the crime beyond a
reasonable doubt.” Williams v. State, 235 S.W.3d 742 (Tex. Crim.App. 2007); Hooper
v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007).
Page -7-
Although the court of appeals in this case purports to apply the legal sufficiency
test the Supreme Court created in Jackson v. Virginia, it actually created an entirely
different test. It notes that its earlier unpublished decision in Gomez v. State, supra,
held that a crime victim’s testimony alone, if believed, establishes that the evidence
legally sufficient to support a conviction. But the Gomez case, like this case, was
wrongly decided. The court of appeals’ erroneously held that its test (i.e. that the
victim’s testimony alone, if believed, is legally sufficient to support a conviction) is
the same as the Jackson legal sufficiency test (i.e. whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.).
But it is not.
This point becomes evident when the two tests are applied to the facts of this
case. Under the Jackson v. Virginia test, Jimenez’ initial trial testimony that Vigil hit
her on the head and pulled her hair cannot be reconciled with Jimenez’ later
testimony that she did not observe who struck her from behind. The alleged victim’s
testimony would be legally insufficient under Jackson because no rational trier of
fact could find beyond a reasonable doubt that Vigil injured Jimenez. However,
Jimenez’ trial testimony would meet the court of appeals’ legal sufficiency test since
the only showing the State had to make to prove it case was that the jury believed
Jimenez’ testimony that Vigil attacked and hit her.
Page -8-
The flaw in the court of appeals’ legal sufficiency test is that it is based on
circular reasoning. Under its analysis, establishing that the defendant was convicted
would in turn establish that the trier of fact believed the victim’s testimony, which in
turn would establish that the evidence was legally sufficient. In contrast, the Jackson
v. Virginia legal sufficiency test is not based on circular reasoning, but on whether
any rational trier of fact could have found all of the elements of the offense beyond
a reasonable doubt. Nevertheless, the court of appeals’ attempts to meld its legal
sufficiency test with that of the Jackson test by stating that “it would be rational for
a jury to conclude Vigil assaulted Jimenez based on Jimenez’s testimony.” (See
Opinion, p. 9). This attempt fails, however, since there is no aspect of the Jackson
v. Virginia test which is based on whether the trier of fact believed the alleged victim
or for that matter, the testimony of any witness. This Court should therefore reject
the court of appeals’ determination that “...the victim’s testimony alone, if believed,
is legally sufficient to support a conviction....” as a misguided legal sufficiency test.
3. The court of appeals’ decision to vacate the trial court’s order granting a
new trial on legal insufficiency grounds when there were no eyewitnesses
connecting Petitioner Vigil to the assault and the State confessed error on
this point conflicts with applicable decisions of this Court
The court of appeals rejected the trial court’s determination that the evidence
was legally insufficient without giving a reason.(See opinion, pp. 4-8). It ignored the
Page -9-
difficulty the trial court faced in attempting to harmonize the initial testimony of
Jimenez, the complaining witness, with her later testimony. Although Jimenez
initially testified that Petitioner Vigil and her daughter Alexis had hit her on the head
from her backside and that Vigil had pulled her hair, during further questioning
Jimenez admitted that she did not see any of her attackers – her precise words being,
“I did not even see them attacking me.” RR 3, 10. This admission by Jimenez along
with the fact that she was the only witness to link Vigil to the alleged assault (a point
which the court of appeals concedes) tends to explain why the prosecutor confessed
error and told the trial court at the motion for new trial hearing that she did not
consider the evidence legally sufficient to support Vigil’s conviction of Class “A”
assault. The failure of Jimenez to identify a part of her body where she sustained
injury or suffered bodily pain also presented legal sufficiency issue.
The court of appeals disregarded these deficiencies in the evidence, however.
In particular, it overlooked Jimenez’ testimony that she did not see her attackers while
she was being attacked from the rear. Instead, based on the assumption that the
prosecutor confessed error, it vacated the trial court’s order granting Vigil a new trial.
In doing so, it failed to consider the important admission by Jimenez that she did not
see any of her attackers during the attack. It also ignored the rule of this Court that
reviewing courts are to grant great weight to the representations of prosecutors in
Page -10-
confessing error. Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002).
Further, the court of appeals disregarded the rule that
appellate courts [are to] uphold the trial court's ruling on appeal absent an
"abuse of discretion." That is to say, as long as the trial court's ruling was at
least within the zone of reasonable disagreement, the appellate court will not
intercede. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
Although Jimenez’ testimony that she did not see her attackers might not be a
concern to the court of appeals, it should have been a concern. Clearly, the trial
court acted within a reasonable zone of disagreement by finding Jimenez’
testimony of not having observed the persons who assaulted her dispositive of the
legal sufficiency issue –- especially since no other eyewitness identified Vigil as
participating in the assault.1 The court of appeals therefore improperly
disregarded the trial court’s ruling and also failed to give respect the State’s
decision to confess error on this legal sufficiency point.
4. The court of appeals’ ruling that a reviewing court can “infer” that a
defendant is a primary actor in an assault case involving multiple
assailants without identifying the specific conduct the defendant
engaged in conflicts with applicable decisions of this Court
In the third point for review of her brief to the court of appeals, Petitioner
Vigil argued that the State failed to prove up its case because it had limited its
1
See page 7 of the Opinion, which states, “We agree with Vigil that, from a direct
evidence standpoint, the identity issue ... turn[s] on he testimony of a single witness: Jimenez.”
Page -11-
prosecution theory to proving that Vigil was a primary actor, rather than a party
to the offense. However, the court of appeals rejected this argument by Vigil
based on the following reasoning:
Vigil correctly notes that the State did not charge Vigil under law of the
parties, and that as such, Vigil cannot be held criminally liable for injuries
caused by Alexis Gonzalez. Even so, this is not fatal. Jimenez testified that
both Vigil and Gonzalez attacked her. Assuming it believed her testimony, a
reasonable jury could infer that because Jimenez said both women attacked her,
and because she suffered injuries, at least some of the injuries could be
attributed to Vigil.
Under Texas law, the State was required to prove that the defendant was
either a primary actor or party to the Class “A” assault offense alleged. Ransom
v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994). The court of appeals
agreed that Vigil could not be found guilty as a party to the offense. However, it
nonetheless concluded that Vigil was still guilty as a primary actor “because
Jimenez said both women attacked her, and because she suffered injuries, at least
some of the injuries could be attributed to Vigil.” In so ruling, the court of appeals
excused the State from having to prove how Vigil injured Jimenez.
Vigil has been unable to find a single Texas case where a court has “inferred”
that a defendant, acting with one or more other persons, was found guilty as a
principal or primary actor without some evidence of how that defendant injured
Page -12-
the victim of the alleged crime. In McCuin v. State, 505 S.W.2d 827, 830 (Tex.
Crim. App. 1974), this Court held that to determine whether appellant was a
primary actor or was a party to the offense, the trial court first had to remove from
consideration the acts and conduct of the non-defendant actor. Then, if the
evidence of the conduct of the defendant then on trial would be sufficient, in and
of itself, to sustain the conviction, no submission of the law of principals was
required. This carried forward the rule it had previously established in Durham v.
State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929) (holding "[w]hen the
evidence shows that the accused on trial was a principal actor in the commission
of the offense, no charge on principals would be necessary, although the proof
may also disclose that in doing the criminal act another took an equal part.").
None of this caselaw has any continued validity if a defendant can be
labeled a primary actor in a multiple assailant case, without the State having to
specify what conduct that defendant engaged in, vis a vis the other defendant(s)
involved in the offense. Under the court of appeals’ analysis, there is no longer
any distinction between parties and primary actors or principals since the
causation element of a criminal offense can be inferred. Review should therefore
be granted to establish that a defendant’s “primary actor” status cannot be simply
“inferred” in a criminal case involving multiple assailants.
Page -13-
5. The court of appeals’ determination that the manner and means
paragraphs alleged in a charging instrument which are descriptive of
an essential element of the charged offense are mere surplusage
conflicts with applicable decisions of this Court
Elizabeth Jimenez, the complaining witness, was asked only one question
regarding whether she suffered pain. RR 3, 32. During her second redirect
examination, the prosecutor asked her: “When you were attacked, did you feel pain?”
Id. Jimenez’ response to this question was, “Yes, I did.” Id. Jimenez did not indicate
where she felt pain. Nor did she identify a particular blow from Vigil which caused
her to suffer pain. Id. Nevertheless, the court of appeals rejected her legal sufficiency
challenge to the “bodily injury” element of the assault offense charged by ruling:
Jimenez testified that Vigil hit her head and pulled her hair, and that she felt
pain during the attack. This testimony is sufficient to establish that Jimenez
suffered bodily injury.
The court of appeals thus ignored Vigil’s argument that the evidence was legally
insufficient to prove any of the manner and means allegations of the information, i.e.
that Jimenez suffered pain when her hair was pulled (paragraph A); that Jimenez
sustained bodily injury after being thrown or pushed to the ground (paragraph C); or
that Jimenez sustained bodily injury by being hit on the head (paragraph D).2 The
2
Paragraph B of the information, which alleged that Vigil caused bodily injury to Jimenez
by grabbing or squeezing Jimenez’ breast, was abandoned by the State at the start of the trial.
Page -14-
court of appeals instead held that Jimenez’ testimony that she felt pain during the
alleged attack was sufficient to prove the assault offense alleged, even though no
parties charge was submitted to the jury.
In Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009), the Court of
Criminal Appeals cited to prior caselaw as establishing that where a fact alleged in
an indictment or information is descriptive of an essential element of the offense, that
fact is not mere surplusage and must be proven by the State as part of its burden of
proof. In Schmidt, the State argued that the "striking” allegation was not required to
be pled and is unnecessary surplusage that is "merely descriptive of an element but
not statutorily required." Id., at 359. The Court held, however, that “The State's
argument in this case that the non-statutory, manner and means allegation of ‘striking’
should not be considered a ‘fact required’ to establish the charged retaliation-by-
threat offense is contrary to our decision in [ Hall v. State, 225 S.W.3d 524, 536
(Tex.Crim.App.2007)]. In Hall, the Court of Criminal Appeals considered the non-
statutory, manner and means allegation of "shooting the individual with a gun" to be
a "fact required" to establish the charged murder offense. Id. Accordingly, the Court
of Criminal Appeals in Schmidt explained that facts which describe an element of an
offense must be proven up because these facts bear upon the defendant has been
given fair and adequate notice of the offense charged:
Page -15-
...that appellant could have been convicted of this retaliation-by-threat
offense under an indictment omitting the "to-wit: striking" allegation does
not necessarily make this allegation unnecessary surplusage. We note that
this Court's decision in Doyle v. State would support a holding that a
defendant's timely motion to quash such an indictment would require the
State to provide the "to-wit: striking" allegation for purpose of providing
adequate notice. See Doyle v. State, 661 S.W.2d 726, 729-31
(Tex.Cr.App. 1983)(defendant's timely motion to quash a
"nonfundamentally defective" retaliation-by-threat indictment entitled the
defendant to notice of "how and to whom the threat was made"). Id.
This Court should reject the court of appeals’ determination that the State need
only prove Vigil caused bodily injury and that it could ignore the manner and
means allegations of the information in its legal sufficiency analysis.
6. The court of appeals departed from the Jackson v. Virginia legal
sufficiency test by measuring the sufficiency of the evidence against a
charge which was hypothetically incorrect because it failed to
considering the manner and means allegations of the charging
instrument
The Court of Criminal Appeals in Malik v. State, 956 S.W.2d 234
(Tex.Crim.App. 1997) altered the legal sufficiency analysis previously applied in
Texas, which had been to compare the legal sufficiency of the evidence against the
actual charge given to the jury. See Sanchez v. State, 376 S.W.3d 767, 772 (2012).
In Malik, the Court of Criminal Appeals held that the legal sufficiency of the
evidence would be determined by comparing the evidence adduced at trial against
Page -16-
a hypothetically correct charge. Id., at 230. In Adames v. State, 353 S.W.3d 854
(Tex. Crim. App. 2011), the Court rejected the argument that the Malik sufficiency
standard is a purely state law standard that is foreign to federal constitutional
norms and does not apply to a constitutional evidentiary-sufficiency review. Id.,
at 860. It noted that under Malik "such a charge would be one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the
State's burden of proof or unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the defendant was tried."
Malik, at 240.
In Vigil’s case, the court of appeals did not base its analysis on the
allegations contained in the four manner-and-means paragraphs of the
charging instrument. It held that because Jimenez testified that both Vigil and
Gonzalez attacked her, “a reasonable jury could infer that Jimenez suffered
injuries, at least some of the injuries could be attributed to Vigil.” It thus relied
on a hypothetically incorrect charge analysis to affirm Vigil’s conviction. Vigil
has been unable to find a single decision from any federal court which has held
that legal sufficiency to be measured against a generic offense, which fails to take
into consideration the manner and means allegations of a charging instrument.
Review of this point is therefore warranted.
Page -17-
7. The court of appeals’ treatment of the manner and means paragraphs
of a charging instrument as mere surplusage conflicts with decisions of
the Supreme Court which require a charging instrument to provide a
defendant with fair and adequate notice of the offense charged
While the United States Supreme Court has determined that "there is no
general requirement that the jury reach agreement on the preliminary factual issues
which underlie the verdict" and that an indictment can allege different manner and
means of committing a crime without rendering the indictment duplicitous, it has
never dispensed with or treated manner and means allegations as mere surplusage.
Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion); McKoy v. North
Carolina, 494 U.S. 433, 449 (1990). The Supreme Court’s analysis in Schad is
consistent with this Court’s analysis in Jefferson v. State, 189 S.W.3d 305
(Tex.Crim.App. 2006) and Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App.
2007), which likewise recognizes that manner and means allegations in an
indictment are not mere surplusage. Thus, even where different jurors can agree
that the offense alleged was committed by different manner and means, neither
court has ever treated manner and means allegations in an indictment or
information as something which can be ignored altogether.
The court of appeals went well beyond the Supreme Court’s analysis of the
“unanimity” issue presented in Schad v. Arizona, however. It treated the the
Page -18-
manner and means allegations of the information in Vigil’s case as mere
surplusage in conducting its legal sufficiency analysis. It determined that the
evidence was legally sufficient to support Vigil’s conviction for assault so long
as the evidence proved Vigil had committed the assault offense alleged by any
means. The Supreme Court has held "[A]n indictment is sufficient if it, first,
contains the elements of the offense charged and fairly informs a defendant of the
charge against which he must defend, and second, enables him to plead an
acquittal or conviction in bar of future prosecutions for the same offense."
Hamling v. United States, 418 U.S. 87, 117 (1974).
The court of appeals’ analysis thus dispenses with both requirements of
Hamling, supra, but most particularly the requirement that the charge fairly inform
the defendant of the offense charged. By holding that the State need only prove
a generic “assault” offense rather than the specific “assault” offense alleged in the
information – it dispensed with the fair and adequate notice requirement of
Hamling v. United States, 418 U.S. 87, 117 (1974). This Court should address
whether manner and means allegations of a charging instrument which describes
an offense element can be treated as mere surplusage when they provide notice of
the offense charged.
Page -19-
PRAYER
WHEREFORE, premises considered, Appellant Vigil respectfully requests
the Court of Criminal Appeals to grant the petition for discretionary review in this
case and order the parties to brief each of the issues presented for review.
Respectfully submitted,
/s/ William W. Navidomskis
WILLIAM W. NAVIDOMSKIS
Attorney for Appellant
701 N. St. Vrain
El Paso, Texas 79902
Tex. Bar No. 24053384
Tel. (915) 730-8644
Fax (915) 975-8028
defense@weslawyer.com
Page -20-
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
This petition for discretionary review complies with the type-volume
limitations of 9.4 and contains 4,370 words, excluding the parts of the petition
exempted by 9.4(1); and this petition for discretionary review complies with the
typeface requirements of 9.4(e) because this brief has been prepared in a
proportionally spaced typeface using Corel Word Perfect in Times New Roman,
14-point.
/s/ William W. Navidomskis
WILLIAM W. NAVIDOMSKIS
CERTIFICATE OF SERVICE
This is to certify that on July __, 2015, a true and correct copy of the
Appellee’s Brief was delivered to District Attorney Office: District Attorney Jaime
Esparza, 500 E. San Antonio, El Paso, Texas 79901 in accordance with the Texas
Rules of Civil Procedure.
/s/ William W. Navidomskis
WILLIAM W. NAVIDOMSKIS
Page -21-
APPENDIX
1. Opinion and Judgment
2. Information
1. Opinion and Judgment
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-13-00025-CR
§
Appeal from
EX PARTE: DANIEL ALVAREZ §
384th District Court
§
of El Paso County, Texas
§
(TC # 960D10169-384-1)
§
OPINION
This is an appeal from a habeas corpus proceeding raising issues familiar to this Court.
The trial court granted the Application for Writ of Habeas Corpus based on the belief that
Padilla v. Commonwealth of Kentucky1 applied retroactively to guilty pleas taken before Padilla
was decided. A case from this Court supported that view at the time the Application was
granted, but as noted below, subsequent decisions from the United Sates Supreme Court and
Texas Court of Criminal Appeals have taken a different tact. Faced with this reality, Daniel
Alvarez now falls back on a waiver argument and an alternate basis to affirm the trial court’s
decision. For the reasons stated below, we reverse the trial court’s issuance of the Writ of
Habeas Corpus.
1
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Padilla requires defense counsel to advise defendants of
the immigration consequences of a plea agreement if they could easily be determined from reading the federal
removal statute. 559 U.S. at 368, 130 S.Ct. at 1483.
FACTUAL SUMMARY
Daniel Alvarez pleaded guilty to possession of more than four grams, but less than 200
grams of cocaine on June 9, 1997. He was given deferred adjudication with five years of
probation, a fine, and community service. Before admitting to the offense, the trial judge
admonished him that “you can be deported if you plead guilty to that offense, and you can’t
return to the United States legally, [and] that any application you make for citizenship will be
denied.” Plea paperwork also contained his acknowledgment that: “I further understand that if I
am not a citizen of the United States of America a plea of guilty or nolo contendere to this
offense in this cause may result in my being deported, excluded from further admission into the
United States, or denied naturalization under Federal law.”    Alvarez entered his plea and as far as
the record shows, he successfully completed the term of that supervised release.
The possession charge grew out of these facts: an undercover police officer observed
Alvarez driving a 1986 Oldsmobile which pulled up alongside another car to make what
appeared to be an illegal drug sale. The officer followed Alvarez and witnessed several other
suspected drug transactions. The police then followed Alvarez to his residence to identify where
he lived. The undercover officer watched Alvarez for several weeks and observed him engaging
in what appeared to be more drug deals, always using the Oldsmobile to make deliveries.
The police arranged with the City Sanitation Department to obtain the trash from
Alvarez’ residence. In his rubbish, they found plastic packaging with cocaine residue. Based on
what they had learned, the police obtained a search warrant for the Oldsmobile and Alvarez’
residence. When the warrant was executed at the residence, the police found a plastic baggie
with 7.5 grams of what was later identified as cocaine in a shirt hanging in the closet. There
were other people at the house at the time of the search, including Alvarez’ wife.
2
The police executed the search warrant for the Oldsmobile by stopping the vehicle while
Alvarez, and another person identified as Julian Jicalan Lopez, were driving around. A search of
the vehicle turned up an additional amount of cocaine found in a plastic baggie in an air
conditioner vent. Alvarez was then arrested and placed in the back of a patrol car. Another
baggie of cocaine was found on the floorboard of the police cruiser where Alvarez was sitting.
Jicalan Lopez had no identification when he was arrested. He was taken back to his apartment
which he agreed could be searched. The search turned up a large amount of cash.
Both Alvarez and Jicalan Lopez were indicted on charges stemming from the possession
and suspected sale of the cocaine. Alvarez was indicted for unlawful possession of a controlled
substance in the Penalty Group I (Cocaine) exceeding 4 grams but less than 200 grams.
Jicalan Lopez, whose real name is Santiago Jicalan Sanchez, hired attorney Manny
Barraza to defend both him and Alvarez. Jicalan Sanchez (aka Jicalan Lopez) executed an
affidavit, submitted in this proceeding, which swore that he paid Barraza $15,000 to defend him
and also paid $5,000 to Barraza to arrange for a guilty plea for Alvarez. His affidavit reads in
part:
I also paid Manuel Barraza $5,000.00 to plea Sr. Daniel Alvarez guilty and to
obtain probation for him. By directing Attorney Barraza to plead Sr. Daniel
Alvarez Manuel Barraza guilty to the cocaine possession charge, Attorney
Barraza was able to get me deported with no charges, even though I had a prior
arrest record. Attorney Barraza knew I was guilty of the charge because I
explained the circumstances of the arrest to him and explained to him that the
cocaine which had been seized from the vehicle belonged to me. However, I
made it very clear to Attorney Barraza that I did not intend to plead guilty to the
cocaine possession charge and wanted the case dismissed. It was explained to
him that Sr. Daniel Alvarez would take the ‘fall’ for the offense. Attorney
Barraza agreed to this arrangement and seemed to be satisfied, since I was the
person paying for Sr. Daniel Alvarez’ legal defense.
While this was taking place, I led Sr. Daniel Alvarez to believe that Attorney
Barraza intended to defend him to the best of his ability, when actually, Attorney
Barraza and I had already agreed to have Sr. Daniel Alvarez plead guilty to the
3
indicted charge so the charge against me could later be dismissed. Sr. Daniel
Alvarez, who had no knowledge of the cocaine in the vehicle, did not know that
cocaine was inside the vehicle. Nevertheless, I arranged to have Attorney Barraza
to work out a plea of guilty with the State so that I could be released from the
charge.
As noted above, Alvarez pleaded guilty with Manny Barraza as his counsel. Jicalan
Sanchez (aka Jicalan Lopez) apparently absconded only to be re-arrested in 2002 on other drug
charges. The record indicates that he pled guilty to those other drug charges in 2003 and
received a six year sentence to be served concurrently with a federal sentence. As a part of that
plea deal, the 1997 charge was dismissed because Jicalan Sanchez (aka Jicalan Lopez) was
“convicted in another cause.” Manny Barraza was his counsel of record at the 2003 plea.
Unfortunately for Alvarez, who is a resident alien, the federal government considers his
deferred adjudication to be a conviction for the purposes of removal. State v. Guerrero, 400
S.W.3d 576, 588 (Tex.Crim.App. 2013)(state based deferred adjudications are still considered
final convictions under federal immigration scheme). Consequently, Alvarez sought to undo his
earlier guilty plea.
PROCEDURAL SUMMARY
Alvarez filed his Application for Writ of Habeas Corpus on July 27, 2012. The
Application raised two issues. First, Alvarez contended that his plea counsel did not properly
advise him on the immigration aspects of the guilty plea, which we refer to as the Padilla
ground. His second argument contends that his plea counsel, Manny Barraza, had a conflict of
interest in that he represented two clients with divergent interests. We refer to this as the Cuyler
v. Sullivan2 or conflict of interest ground.
2
446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Under Cuyler, a defendant can establish a violation of his
Sixth Amendment right to the effective assistance of counsel if he can show “that an actual conflict of interest
adversely affected his lawyer’s performance.” 446 U.S. at 350, 100 S.Ct. at 1719.
4
The trial court held a hearing on the Application on December 17, 2012. Habeas counsel
offered an affidavit from Alvarez, the affidavit of his co-defendant Jicalan Sanchez (aka Jicalan
Lopez), and offered testimony from Alvarez’ wife, Anabel Alvarez.3 Manny Barraza did not
testify, in person or by affidavit.4
The trial court later granted the Application, vacating the 1997 guilty plea. The court
issued eight Findings of Fact and two Conclusions of Law. The findings germane to the Padilla
claim include:
Findings of Fact
. . .
6. Attorney Barraza did not advise Alvarez of the immigration consequences of
his guilty plea prior to June 9, 1997, the date Alvarez pled guilty. Specifically,
Alvarez was never advised that a plea of guilty to the offense of possession of
more than 4 but less than 200 grams would subject him to deportation or removal
from the United States.
Conclusions of Law
. . .
2. Applicant Alvarez was deprived of effective assistance by Attorney Barraza’s
failure to inform Alvarez of the immigration consequences of his guilty plea to
the cocaine possession charge.
The findings germane to Alvarez’ Cuyler v. Sullivan conflict of interest claim include
these:
Findings of Fact
. . .
4. Shortly after Alvarez’ arrest, the person then-known as Julian Jicalan Lopez
retained Attorney Manuel Barraza to represent both Daniel Alvarez and himself
3
Counsel represented that Daniel Alvarez was confined at an “immigration camp” as of the date of the hearing.
4
We take notice that attorney Manny Barraza was convicted on June 1, 2010 of two counts of wire fraud,
deprivation of honest services, making false statements, and he had been sentenced to five years in a federal prison.
See 75 TEX.B.J. 480-81 (June 2012). On April 23, 2012 he was disbarred. Id.
5
by paying Barraza $15,000.00 for his representation and $5,000.00 to represent
Alvarez. The terms of this agreement were that Barraza would seek to obtain a
probation sentence for Alvarez on the cocaine possession charge and secure a
dismissal for Julian Jicalan Lopez on the same charge.
. . .
7. The Court finds that Attorney Manuel Barraza labored under an actual conflict
of interest by representing both Alvarez and Sanchez in connection with the
pending cocaine possession charge.
8. The Court finds that Attorney Barraza’s dual representation of Alvarez and
Sanchez had an adverse effect on specific instances of counsel’s representation.
Under the heading “Conclusions of Law” appears a typewritten finding that “Applicant
Daniel Alvarez was deprived of effective assistance of counsel by reason of Attorney Manuel
Barraza’s dual representation of both Alvarez and Sanchez on the same cocaine possession
charge.” There is a handwritten mark, which appears to be a strike-out, through this Conclusion
of Law.
In response to a motion filed by the State, we issued an order directing the trial court to
clarify what Findings of Fact and Conclusions of Law he relied upon to grant habeas corpus
relief. In reply, the trial court issued a new set of findings on May 31, 2013 that are limited to
only those original findings germane to the Padilla claim. The trial judge did not include any of
his original findings, as set out above, which pertained to the Cuyler v. Sullivan conflict of
interest claim.
The State appeals and raises two issues. In Issue One, the State argues that Padilla
cannot be applied retroactively. In Issue Two, the State argues that even if the rule applied
retroactively, Alvarez failed to show any prejudice.
STANDARD OF REVIEW
As the applicant for the Writ of Habeas Corpus, Alvarez was obliged to prove his
allegations by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664
6
(Tex.Crim.App. 2006). In reviewing the trial court’s decision to grant or deny relief on the
Application, we review the facts in the light most favorable to the trial court’s ruling and uphold
it absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003).
Reviewing courts should afford almost total deference to a trial judge’s determination of the
historical facts supported by the record, especially when the fact findings are based on an
evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819 n.67. When
dealing with mixed questions of law and fact, we give the same level of deference if the
resolution of those questions turn on an evaluation of credibility and demeanor, and review de
novo those mixed questions of law and fact that do not depend upon credibility and demeanor.
Id. at 819.
The reviewing court should affirm as long as the decision is correct on any theory of law
applicable to the case. Ex parte Primrose, 950 S.W.2d 775, 778 (Tex.App.--Fort Worth 1997,
pet. ref’d); see, e.g., Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011)(stating that
appellate court will not disturb trial court’s evidentiary ruling if ruling is correct on any theory of
law applicable to ruling, even if trial court gave wrong reason for correct ruling); Mahaffey v.
State, 316 S.W.3d 633, 637 (Tex.Crim.App. 2010)(holding that State could permissibly make
new argument in support of trial court’s ruling for first time on appeal because “an appellate
court will uphold the trial court’s ruling if that ruling is ‘reasonably supported by the record and
is correct on any theory of law applicable to the case’”) quoting State v. Dixon, 206 S.W.3d 587,
590 (Tex.Crim.App. 2006).
PADILLA ISSUE
Alvarez asserted below that he was denied effective assistance of counsel because his
attorney failed to apprise him of the immigration implications of his decision to plead guilty.
7
The Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. The Sixth Amendment guarantees reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674 (1984);
Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). To prove his plea was
involuntary because of ineffective assistance, Alvarez must show (1) counsel’s representation/
advice fell below an objective standard and (2) this deficient performance prejudiced the defense
by causing him to give up his right to a trial. See Ex parte Morrow, 952 S.W.2d 530, 536
(Tex.Crim.App. 1997).
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland. Hernandez v. State, 726 S.W.2d 53, 56-57
(Tex.Crim.App. 1986). Under the Strickland test, an applicant must show that counsel’s
performance was “deficient,” and that the “deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712
(Tex.Crim.App. 2000).
In the context of Alvarez’ claim, the Supreme Court has held that the Sixth Amendment
requires a criminal defense attorney to inform his client of the risk of automatic deportation as a
result of his guilty plea. Padilla v. Kentucky, 559 U.S. 356, 368-69, 130 S. Ct. 1473, 1483,
L.Ed.2d 284 (2010); State v. Guerrero, 400 S.W.3d 576, 587 (Tex.Crim.App. 2013). The
Padilla decision issued on March 31, 2010. Padilla, 559 U.S. at 356, 130 S.Ct. at 1473. When
Alvarez’s application was originally heard by the trial court, it was an open question as to
whether Padilla applied retroactively to those cases where the plea was taken before Padilla was
handed down. A decision of this Court had held Padilla should be applied retroactively. Ex
8
parte De Los Reyes, 350 S.W.3d 723, 729 (Tex.App.--El Paso 2011), rev’d, 392 S.W.3d 675
(Tex.Crim.App. 2013). But soon thereafter, the retroactivity issue was resolved against Alvarez,
both by the United States Supreme Court and the Texas Court of Criminal Appeals. Chaidez v.
United States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); Ex parte De Los Reyes,
392 S.W.3d 675, 679 (Tex.Crim.App. 2013).
The Texas Court of Criminal Appeals has further clarified that while normally an order of
deferred adjudication is not considered a final conviction for state law, it is for the purposes of
federal immigration law. State v. Guerrero, 400 S.W.3d at 587-88. For purposes of a Padilla
analysis, a final conviction occurs at the time a defendant pleaded guilty and was placed on
deferred adjudication. Id. Thus, if an Applicant made their plea before March 31, 2010 when
Padilla was handed down, the failure of trial counsel or the trial judge to inform a defendant of
the deportation consequences of the guilty plea does not entitle the defendant to habeas corpus
relief. Guerrero, 400 S.W.3d at 588.
In this case, it is undisputed that Alvarez’s guilty plea, and even his completed term of
deferred adjudication, occurred long before Padilla was decided. The trial court would have
abused its discretion in not applying pre-Padilla law. See Ex parte Sudhakar, 406 S.W.3d 699,
702 (Tex.App.--Houston [14th Dist.] 2013, pet. ref’d). Under that law, the Sixth Amendment
right to counsel does not extend to “collateral” consequences of a prosecution. Ex parte
Morrow, 952 S.W.2d at 536. Deportation is a collateral consequence of a prosecution.
Hernandez v. State, 986 S.W.2d 817, 821 (Tex.App.--Austin 1999, pet. ref’d), citing State v.
Jimenez, 987 S.W.2d 886, 888-89 (Tex.Crim.App. 1999). Consequently, Alvarez’ plea was not
deficient because of any failure of his trial counsel to warn him about the immigration
consequences of his plea. See Ex parte Sudhakar, 406 S.W.3d at 702.
9
Alvarez’ sole response to this seismic shift in the case law against him is to argue that the
State waived the point. He contends that by failing to obtain an explicit ruling from the trial
judge on the retroactivity issue, the State cannot raise it now. We disagree.
Generally to preserve error a the party must “let the trial judge know what he wants, why
he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a
time when the trial court is in a proper position to do something about it.” Lankston v. State, 827
S.W.2d 907, 908-09 (Tex.Crim.App. 1992); TEX.R.APP.P. 33.1. The record in this case is clear
that the State raised the question of retroactivity below. The State devoted fifteen pages of its
response to the Application outlining the retroactivity issue, including alerting the trial court that
the U.S. Supreme Court had accepted the petition for certiorari in Chaidez, and that the Texas
Court of Criminal Appeals had granted the petition for discretionary review in De Los Reyes. At
the hearing on the Application, the State restated its position that it did not believe that Padilla
should be applied retroactively, but conceded that the trial court might be bound by this Court’s
opinion in De Los Reyes. When the trial court granted the Application, it necessarily overruled
the State’s retroactivity arguments. We find no waiver on this record.
CONFLICT OF INTEREST ISSUE
In his brief, Alvarez appears to argue that the trial court’s ruling can alternatively be
upheld on his Cuyler v. Sullivan conflict of interest ground that was originally raised in his
Application, but not accepted by the trial court. Alvarez contends that he obtained sufficient
findings of fact to allow this Court to sustain the writ on that alternate ground. The State did not
favor us with a reply brief to respond to this contention.
While most ineffective assistance of counsel claims are resolved applying the Strickland
test, when the underlying failing of trial counsel involves a conflict of interest, a different
10
analysis applies. Conflict of interest claims for which no objection was timely made at the
original trial or plea are analyzed under Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64
L. Ed. 2d 333 (1980). Acosta v. State, 233 S.W.3d 349, 356 (Tex.Crim.App. 2007); James v.
State, 763 S.W.2d 776, 778-79 (Tex.Crim.App. 1989). The Cuyler analysis has two elements.
The applicant must demonstrate that (1) defense counsel was burdened by an actual conflict of
interest; and (2) the conflict had an adverse effect on specific instances of counsel’s
performance. Ex parte McFarland, 163 S.W.3d 743, 759 n.52 (Tex.Crim.App. 2005); Pina v.
State, 29 S.W.3d 315, 317 (Tex.App.--El Paso 2000, pet. ref’d).
Joint representation does not automatically create an actual conflict of interest. See
Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)(explaining that
joint representation is not per se ineffective assistance); James, 763 S.W.2d at 778 (same). An
actual conflict of interest exists when “one defendant stands to gain significantly by counsel
adducing probative evidence or advancing plausible arguments that are damaging to the cause of
a co-defendant whom counsel is also representing.” James, 763 S.W.2d at 779. However, the
failure to emphasize the culpability of one defendant over the other does not create an actual
conflict. Kegler v. State, 16 S.W.3d 908, 913 (Tex.App.--Houston [14th Dist.] 2000, pet. ref’d);
Howard v. State, 966 S.W.2d 821, 827 (Tex.App.--Austin 1998, pet. ref’d).
To meet the second Cuyler test--showing an adverse effect--an Applicant must
demonstrate that some plausible defense strategy or tactic might have been pursued, but was not,
because of the conflict of interest. Ramirez v. State, 13 S.W.3d 482, 487 (Tex.App.--Corpus
Christi 2000), pet. dism’d, improvidently granted, 67 S.W.3d 177 (Tex.Crim.App. 2001). If the
Applicant shows both elements, then prejudice is presumed. Strickland, 466 U.S. at 692, 104
S. Ct. 2052; Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App. 1999).
11
Our first hurdle in analyzing this claim is that the trial court, while agreeing with some of
the predicates of the argument, rejected its conclusion. The trial judge originally made findings
that Manny Barraza labored under an actual conflict of interest that had “an adverse effect on
specific instances of counsel’s representation.” But the trial court affirmatively struck through a
proposed finding that the conflict denied Alvarez effective assistance of counsel. In response to
this Court’s order, the trial court clearly indicated the conflict of interest findings did not inform
his decision to grant the writ.5
Even if the earlier findings of fact were meant to survive the newer issued findings, we
would be inclined to view them as insufficient to sustain a Cuyler type challenge. To be sure,
there is some evidence of the existence of a true conflict of interest presented on the record. The
allegation that attorney Manny Barraza accepted the representation of two persons with the intent
to plead one to the detriment of the other is precisely the type of conflict alluded in Dukes v.
Warden, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45 (1972). In Dukes, one of several co-
defendants represented by the same firm of attorneys complained that his guilty plea was tainted
by a conflict of interest. He had learned that his attorney when pleading out the co-defendants
had tried to gain leniency for the other defendants by suggesting that he was the more culpable
defendant. Id., 406 U.S. at 254, 92 S. Ct. at 1554. The court rejected the claim, but specifically
referenced a finding of the lower court that there was no evidence that the attorney “induced
[Dukes] to plead guilty in furtherance of a plan to obtain more favorable consideration from the
court for other clients.” Id., 406 U.S. at 257, 92 S. Ct. at 1554; James, 763 S.W.2d at 784
5
We note that the trial judge signed the order with the new Findings of Fact and Conclusions of Law on May 31,
2013 which was after the United States Supreme Court decided Chaidez and the Texas Court of Criminal Appeals
decided De Los Reyes, ending the retroactivity debate in Texas, and thus effectively undermining the only rationale
for his decision. Had the trial court had any belief that the conflict of interest issue had merit, we would have
thought he would have included it in his findings at that time.
12
(Clinton, J., concurring)(noting this distinction drawn in Dukes). There is, however, some
evidence on this record of a plan to favor one defendant over the other.
But in looking at this record, we are not directed to any evidence supporting the second
Cuylar predicate that the conflict had an adverse effect on specific instances of attorney
Barraza’s conduct. “An appellant must identify specific instances in the record that reflect a
choice that counsel made between possible alternative courses of action, such as ‘eliciting (or
failing to elicit) evidence helpful to one [interest] but harmful to the other.’” Gaston v. State,
136 S.W.3d 315, 318 (Tex.App.--Houston [1st Dist.] 2004, pet. struck)(en banc), quoting
Ramirez v. State, 13 S.W.3d 482, 488 (Tex.App.--Corpus Christi 2000, pet. dism’d). The trial
court’s original findings contain the relevant language from Cuyler, but offer no clue as to what
specific instances of conduct were adversely affected. See Ex parte Flores, 387 S.W.3d 626, 634
(Tex.Crim.App. 2012)(a trial court’s findings of fact and conclusions of law should do more than
more than restate the parties’ arguments). The only conduct of attorney Barraza reflected by the
evidence in the record was the plea bargain itself. There is no evidence of how the terms of the
plea was reached, such the negotiations behind the plea. There is no evidence that he took any
specific action to use the terms of Alvarez’ plea to gain some particular concession for Jicalan
Sanchez (aka Jicalan Lopez). There is no evidence of the investigation that Barraza may or may
not have undertaken to develop a defense, particularly as to the cocaine found in his house and
on his person. We acknowledge that the indictment and plea occurred almost fifteen years
before the Application was filed, but Alvarez still bore the burden to present some evidence of
each element of his claims.6
6
We note that the Texas Court of Criminal Appeals has recently referenced the consequence of the potential loss of
evidence when habeas applications involve pleas and convictions occurring many years in the past. Ex parte Smith,
444 S.W.3d 661, 666 (Tex.Crim.App. 2014). The court has now specifically authorized habeas courts to sua sponte
raise the issue of laches, looking in part to the prejudice occasioned by reconstructing events long past. Ex parte
13
In the cases where a conflict of interest was found, the courts could identify in the record
specific instances of attorney conduct affected by the conflict. Holloway, 435 U.S. at 480, 98
S.Ct. at 1176 (counsel unable to ask one co-defendant questions on the stand due to confidential
information imparted from co-defendant); Ex parte Acosta, 672 S.W.2d 470, 473-74
(Tex.Crim.App. 1984)(decision to have defendant testify); Ex parte McCormick, 645 S.W.2d
801, 804 (Tex.Crim.App. 1983)(decision to oppose separate trials and use of confessions); Ex
parte Parham, 611 S.W.2d 103, 105 (Tex.Crim.App. 1981)(advice given to one defendant about
testifying); James, 763 S.W.2d at 778 (“In each of these cases the potential for conflict inherent
in multiple representation became an actual conflict due to the inculpatory or exculpatory nature
of testimony or the strategy adopted by defense counsel in the particular case. That is not
reflected in the case before us today.”). We simply find none of these types of specific actions
developed in the record that would support the second Cuyler finding, even under our highly
deferential standard of review.
And while we recognize that a conflict of interest may implicate not only what an
attorney does, but what he fails to do, Holloway, 435 U.S. at 489-90, 98 S.Ct. at 1181, we do not
find any specifics of Barraza’s conduct, other than attending a plea hearing in this record.
Nothing suggests there was any other viable defense strategy that he could have pursued, or
action that he could have taken on Alvarez’ behalf.7
Bowman, NO. PD-1375-14, ___ S.W.3d ___, 2014 WL 6464635 (Tex.Crim.App. Nov. 19, 2014); Ex parte Smith,
444 S.W.3d at 667.
7
His habeas counsel argued at the hearing that Alvarez could have placed all the blame on Jicalan Sanchez (aka
Jicalan Lopez) for the cocaine in the car, or his wife for the cocaine in his house, but habeas counsel’s argument is
not evidence. Guerrero, 400 S.W.3d at 586 (habeas counsel’s statements not evidence and would not support
findings).
14
We sustain Issue One and find Issue Two to be moot. The trial court’s judgment is
reversed and judgment is rendered denying the Application for Writ of Habeas Corpus.
TEX.R.APP.P. 43.2(c).
January 28, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
15
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-13-00025-CR
§
Appeal from
EX PARTE: DANIEL ALVAREZ §
384th District Court
§
of El Paso County, Texas
§
(TC # 960D10169-384-1)
§
JUDGMENT
The Court has considered this cause on the record and concludes that there was error in
the judgment. We therefore reverse the judgment of the court below and render judgment
denying the Application for Writ of Habeas Corpus, in accordance with the opinion of this Court,
and that this decision be certified below for observance.
IT IS SO ORDERED THIS 28TH DAY OF JANUARY, 2015.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
2. Information
.···-··-
D.A. CONTROL #12-10345 PID: 1757605 NCIC: 13990001
INFORMATION JtJ%aa
OFFENSE: ASSAULT CAUSES BODILY IN.J
STATE OF TEXAS
cer-J
vs.
VANDAVIGIL
D.O.B.: 07/10/68 ADDRESS: 210 WEST REDO RD 708
WARRANT: M12W7593 EL PASO, TX 79932
AGENCY: EL PASO POLICE
( ) CAPIAS REQUESTED
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS
I, t::..gz)bN , ASSISTANT DISTRICT ATTORNEY IN AND FOR THE COUNTY OF EL PASO,
STATE OF TEXAS, PRESENT TO THE COUNTY COURT AT LAW NO.1 OF EL PASO COUNTY, TEXAS, IN AND FOR
SAID COUNTY, AT ITS JULY TERM, A.D. 2012, THAT ON OR ABOUT THE 17TH DAY OF AUGUST, 2012 AND
BEFORE THE FILING OF THIS INFORMATION IN SAID COUNTY OF EL PASO, STATE OF TEXAS, VANDA VIGIL,
HEREINAFTER REFERRED TO AS DEFENDANT, .
PARAGRAPH A
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY PULLING ELIZABETH JIMINEZ'S HAIR WITH THE DEFENDANT'S HAND,
PARAGRAPH B
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY GRABBING OR SQUEEZING ELIZABETH JIMINEZ'S BREAST WITH THE DEFENDANT'S HAND,
PARAGRAPH C
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILYINJURY TO ELIZABETH
JIMENEZ BY PUSHING OR THROWING ELIZABETH JIMENEZ TO THE GROUND,
PARAGRAPH D
DID THEN AND THERE INTENTIONALLY, KNOWINGLYOR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY STRIKING ELIZABETH JIMENEZ ABOUT THE HEAD WITH THE DEFENDANT'S HAND,
AGAINST THE PEACE AND DIGNITY OF THE STATE.
.... -
ASSISTANT DISTRICT ATTORNEY
FOR EL PASO COUNTY,
STATE OF TEXAS
FILED COURT AT 1 OF EL PASO COUNTY, TEXAS
ON "f.Q. AT /..3 .' O'CLOCK, y2
M._
EL PASO COUNTY, TEXAS
SQ