in Re Juan Gabriel Cisneros ( 2017 )

Office of the Clerk
Couxt o!· Appeals
Fourth
' Collrt of Appeals
Distritt of Texas
Sari Antonio
Re: Application for a Writ of Mandamus
Cause No. aa-02-o;n 79 Appeals No. 04-17-00614-CR
79th Judicial District
Brooks County, Texas
Dear Clerk:
Enclosed please find my original Application for a
Writ of Mandamus. Please bring it to this Court's att�ntj_on
an<:i by doing Sarne, please send me an ackhowledgetnent that my
appiication has been received and is being filed. Enclo$ed
please also find a self-addressed stamped envelope for your
convenience.
ff there is any problem with my application and f.iling,
please let me know and have that information so it can be
corrected.
Thanks in a,dvance for your time and kinds assistance
shown to me in the above mentioned request.
CISNEROS #40178-079
USP-VICTORVILL�/P.O. aox 3900
ADELANTO, CALIFORNIA 92301
Page 1 of 12
COURT OF APPEALS
FOURTH COURT OF APPEALS DISTRICT OF TEXAS
SAN ANTONIO
Appeals No. 04-17-00614-CR
Cause No. 88-02-02179
79th Judicial District Court
Brooks County, Texas
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JUAN GABRIEL CISNEROS, Relator ^
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BROOKS COUNTY DISTRICT CLERK, Respondent h, ^ tn
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APPLICATION FOR A WRIT OF MANDAMUS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Juan Gabriel Cisneros, the Relator acting in
pro-Se, and respectfully submits this his Application for a
Writ of Mandamus, and in support thereof, would show this
Honorable Court as follows:
I. OVERVIEW OF RELEVANT FACTS
Because the Application for Writ of Habeas Corpus
Pursuant to Texas Code of Criminal Procedure, Article 11.08,
along with the Financial Statement Affidavit and Request to
Proceed In Forma Pauperis, attached hereto and incorporated
herein for purposes hereof as Exhibit A, provides a detailed
background with respect to the relevant facts, that
background is not repeated here. However, an overview of the
relevant facts -which is taken largely from the Background
Page 2 of 12
Facts Section of the Application- is piroyided here.
The above-named Relator, Juan Gabriel Cisheros states and
asserts he is being unlawfully restrained of his personal
liberty by The State of Texas, County of Brooks, in violation
of State and Federal Constitutions by reason of Ineffective
Assistance of Counsel, when Counsel abandoned on February 27,
1989, a valid claim of Innocence, and instead, coerced and
induced the Relator to accept a plea offer to a possession of
marijuana charge, in which he would be placed on two (2)
years deferred adjudication probation, which if he
successfully completed, the district judge would sign an
dismissal order that would be the equivalent to an acquittal
of the charges. The effect of which would be as if Relator
was found innocent of the crime. Relator accepted the plea
offer and plead guilty based solely upon counsel's
affirmative information and advice and successfully completed
the two year deferred adjudication probation and was
discharged oh or about April 29/ 1991.
However, on June 19, 1995, Relator was convicted in
federal court of conspiracy to possess with intent to
distribute marijuana and sentenced to mandatory life without
release, as a result of the two (2) year deferred
adjudication probation, which was used as the basis of a
prior offense for purposes of enhancement, contrary to what
trial counsel affirmatively assured Relator.
Relator states, and the state court records show, that he
has diligently sought relief -incorrectly, due to pro se
status and lack of Texas Code of Criminal Procedure Books and
Case law in the federal system- under Article 11.07 of the
Page 3 of 12
Texas Code of Criminal Procedure. For several years,
commencing on about the year 2000 through 2010, Relator filed
several applications for writ of habeas corpus pursuant to
Article 11.07, receiving no response from the trial court.
See First Docket Entry File in Criminal Case 88-02-02179,
attached hereto and incorporated herein for purposes hereof
as Exhibit B; Also see Unsworn Declaration, attached hereto
and incorporated herein for purposes hereof as Exhibit C.
Relator even filed an Application for Writ of Mandamus oh
April 2, 2003, to the Texas Court of Criminal Appeals. The
Court of Criminal Appeals ordered the district clerk to
respond- On May 16, 2003, the district clerk responded by
stating no. "Application for Writ of Habeas Corpus had been
filed and therefore no action could be taken." This response
by the district clerk is clearly contradicted by the state
court records. See Exhibit B; also see Court of Criminal
Appeals No. 39,693-03.
However, Relator without assistance of counsel and
proceeding pro-se, filed in 2008, incorrect vehicle, another
Application for writ of Habeas Corpus under Article 11.07 of
Texas Code of Criminal Procedure. This Application was
dismissed on about October 3, 2008 for want of jurisdiction,
because community supervision was not revoked. See Second
Docket Entry File in Criminal Case 88-02-02179, attached
hereto and iheorporated herein for purposes hereof as Exhibit
D, at Docket No. 41.
Thereafter, with the assistance of habeas counsel Rudy
Wattiez, of San Antonio, Texas, on June 14, 2010, Relator
filed an Application for Writ of Habeas Corpus Pursuant to
Page 4 of 12
Article 11.08 of the Texas Code of Criminal Procedure, the
correct vehicle in this deferred adjudication case. Id., at
Docket Entry No. 42; Also see Donovan v. State, 68 S.W.3d
633, 636 (Tex. Crifn. App. 2002).
In this Application, Relator alleged that his guilty plea
was obtained by inducement, in that it was not voluntarily
asserted nor was the full understanding of the consequences
known to Relator at the time of the agreement.
Relator was denied effective assistance of counsel,
Eugenio A. Soils, Jr., failed to familiarize himself with the
facts and law pertaining to the very issues raised in that
application. Relator's retained counsel induced him to plead
guilty by misleading him about the consequences of accepting
deferred adjudication probation. Furthermore, retained
counsel mislead and unlawfully induced Relator to accept a
plea agreement for deferred adjudication probation, by
misinforming Relator, if plead guilty and accepted the
deferred adjudication probation, and his probation was not
revoked, the judge would sign an order of dismissal of the
underlying crime, the effect of which would be as if the
crime had never occurred and the offense on his record would
be permahehtly removed. See Sworn Affidavit of Eugenio A.
Soils, Jr., (Exhibit 3 to Article 11.08 Application, which is
attached hereto and incorporated herein for purposes hereof
as Exhibit A).
An evidentiary hearing was held on this Application on
July 25, 2011, and eventually denied on the 26th day of July
2011. See Second Docket Entry File in Criminal Case 88-02-
I
02179, attached hereto and incorporated herein for purposes
Page 5 of 12
hereof as Exhibit D, at Docket No. 68.
Writ of habeas counsel Rudy Wattiez, filed an untimely
notice of appeal to the denial, id. at Docket Entry No. 82,
and eventually the appeal was dismissed for want of
jurisdiction. See Gourt of Appeals Order of February 8, 2012,
attached hereto and incorporated herein for purposes hereof
as Exhibit E; also see Exhibit D, at Docket No. 104.
On October 3, 2016, Relator filed another -the
Application referred to in this Application for a Writ of
Mandamus- Application under Article 11.08 in the trial court.
Relator now alleges in the instant Application for Writ of
Habeas Corpus Pursuant to Article 11.08 of Texas Code of
Criminal Procedure, that he was denied effective assistance
of counsel on a different ground.
Given that Relator had previously asked his habeas
counsel about this unraised claim, and had informed him to
raise it in the initial application Under Article 11.08, but
was told by habeas counsel Rudy Wattiez, that it was not
necessary. That the ineffective assistance of counsel claim
already raised in the application -mentioned above- was more
than enough to get a reversal of the conviction. Relator
otherwise did not doubt his habeas coiinsel's representation.
Relator is entitled to bring this his subsequent application
for Writ of Habeas Corpus Pursuant to Article 11.08 of Texas
Code of criminal Procedure.
Article 11.08 of Texas Code of Criminal Procedure does
not bar Relator from filing a subsequent application. Article
11.08 does hot have a subsequent application restriction as
Article 11.07, since the statutes set out two very different
Page 6 of 12
procedures.
Moreover, Relator presents a claim of ineffective
assistance of trial counsel that was not presented to the
habeas court in the initial collateral review proceedings
and, perhaps, is procedurally barred because of the
ineffectiveness of his original state habeas counsel. Relator
seeks to challenge his guilty plea, specifically, Relator
asserts that he should be allowed to pursue his claim that he
was provided with ineffective assistance of habeas counsel
during initial collateral review proceedings in the habeas
court, relying upon the United States Supreme Court in
Martinez v. Ryan/ 132 S. Ct. 1309, 182 L.Ed 2d 272 (2012), and
Trevino v. Thaler, 133 S,Ct, 1911, 185 L.Ed 2d 1044 (2013).
Relator moved for habeas relief and seeks an "opportunity to
challenge state habeas counsel's effectiveness." Relator
contends that under Martinez and Trevino, he is entitled to
present and have the trial court consider the evidence that
was not submitted to the state habeas court due to state
habeas counsel's failures.
The evidence that Relator presented to the trial court is
that before his guilty plea arraignment hearing of February
27, 1989, Relator informed trial counsel, Eugenio A. Soils,
Jr., that he was innocent of the Crime he was charged with,
that he took the blame of the drugs due to coercion on part
of his mother, to protect her from going to jail. Trial
counsel Eugenio A. Soils, Jr., informed Relator that he had
already reviewed the evidence against him and that the
district attorney had offered a plea bargain. That, since he
[Relator] had accepted responsibility for the drugs found in
Page 7 of 12
the truck, he had no other choice but to plead guilty. That
the offer the district attorney had extended if completed,
would be if he was never charged.
Relator filed his Article 11.08 Application on October 3,
2016, and to this date the trial court nor the State of
Texas, have filed a response or any document, despite
Relator's filing of a Motion to Supplement Application with
Recent U.S. Supreme Court Authority in Jae Lee v. U.S., No.
16-327, on July 12, 2017. And a Motion for Appointment of
Counsel.
II. PROCEEDINGS UNDER THE WRIT
Article 11.10 states: When motion has been made to a
judge under the circumstances set forth in the two preceding
Articles [11.08 and 11.09], he shall appoint a time when he
will examine the cause of the applicant, and issue the writ
returnable at that time, in the county where the offense is
charged in the indictment or information to have been
committed. He shall also specify some place in the county
where he will hear the motion. Art. 11.10 of Tex. Code of
Crim. Prbc. The trial court has failed to comply with this
Articles mandate. Relator'S Article 11.08 Application has
been Sitting in the trial court for almost a year now.
Furthermore, Article 11.15 mandates that "The writ of
habeas corpus shall be granted without delay by the judge or
court receiving the petition, unless It be manifest from the
petition itself, or some documents annexed to it, that the
party is entitled to no relief whatever." Art. 11.15 of Tex.
Code of Crim. P.
The above cited Articles are very specific, that the
Page 8 of 12
trial court shall act accordingly.
Relator's Article 11.08 Application presents a colorable
claim that entitles him to the habeas relief sought before
the trial court.
Relator lacks an adequate remedy at law -Article 11.07
inapplicable to deferred adjudication offenses, see Ex Parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997)- because
Y
his petition to the trial court for habeas relief are simply
ignored and/or not responded to. Relator is presently serving
a life sentence without release in the federal system as a
result of the State's prior deferred adjudication -two (2)
year- probation, that was obtained in violation of his
constitutional rights.
III. DENIAL OF DUE PROCESS
The longer the trial court keeps delaying the Article
11.08 Application now before it, the longer due process
fights to Relator is being delayed.
IV. DEFERRED ADJUDICATION PROBATION
Under Texas law, deferred adjudication -as in the present
case- is a process intended to give selected offenders an
opportunity to avoid the stigma inherent in the entry of a
judgment of guilt for a felony offense by postponing the
actual determination of guilty for a period of years during
which a defendant who complies with the conditions specified
by the sentencing judge during that term can ultimately
receive a dismissal of the indictment or information against
him. See Ex Parte Laday, 594 S.W.2d 102, 104 (Tex. Ct. Crim.
App. 1980)'. If, however, the defendant fails to comply with
the conditions of the deferred adjudication term, a judge can
Page 9 of 12
revoke the term of deferred adjudication, enter an order
adjudicating the defendant's guilt, and fix the sentence to
be served by the defendant. See Dahlkoetter v. State, 628
S.W.2d 255, 257-58 (Tex. Ct. App. 1982).
In the instant case, Relator successfully complied with
the conditions specified by the sentencing judge. Thereafter,
the sentencing judge submitted an ORDER DISCHARGING DEFENDANT
FROM DEFERRED ADJUDICATION PROBATION. See Sentencing Judge
Discharging Order, attached hereto and incorporated herein
for purposes hereof as Exhibit F. However, the federal system
enhanced Relator's sentence in a separate case to life
without release as a result of the two year deferred
adjudication probation, notwithstanding the fact that Relator
was discharged from said probation.
Relator has been incarcerated for over 22 years now, but
for the deferred adjudication offense, he would have been
released long time ago.
Relator was coerced into accepting the State's plea offer
to a possession of marijuana charge, in which he would be
placed on two (2) years deferred adjudication probation,
which if he successfully completed, the district judge would
sign an dismissal order-that would be the equivalent to an
acquittal of the charges. The effect of which would be as if
Relator was found innocent of the crime. Relator accepted the
plea offer and plead guilty based solely upon counsel's
affirmative information and advice and successfully completed
the two year deferred adjudication probation and was
discharged on or about April 29, 1991.
However, the indictment was not dismissed nor the charges
Page 10 of 12
dropped and Relatdr was ultimately sentenced in federal court
to life without release as a result of the deferred
adjudication probation offense, that was obtained in
violation of his constitutional rights.
V. APPLICATION FOR A WRIT OF MANDAMUS RELIEF
The application for a writ of mandamus is used to confine
an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when
it is its duty to do so.
In Chapman v. Evans, 744 S.W.2d 133, 138 (Tex. Crim. App.
1988), the relator sought -through a. writ of mandamus- to
have the trial court either set for trial or dismiss a
pending indictment for an offense unrelated to that for which
he was presently incarcerated. The Court of Criminal Appeals
granted mandamus relief.
Similarly, in Thomas v. Stevenson, 516 S.W.2d 845 (Tex.
Crim. App. 1978), the relator, serving a sentence of life
imprisonment for attempted murder, had detainers placed upon
him for charges of burglary of a habitation. He filed several
request with the trial court to obtain a speedy trial, but
received no response. The Court of Crimina.1 Appeals granted
mandainus relief in that case as well.
Relator is serving a sentence of life without parole for
a marijuana drug offense in the federal system> as a result
of the State's prior two year deferred adjudication probation
offense -which he successfully completed- that was obtained
in violation of his constitutional rights. The trial court
has ignored the Article 11.08 Application filed by Relator on
October 3, 2016, and its procedures for almost a year now.
Page 11 Of 12
This Court can either grant the relief sought in Relator's
habeas corpus application, or in the alternative, order the
State of Texas, County of Brooks, to respond to the claim
raised in the Application.
VI. CONCLUSION [
Relator asks this Honorable Court for mandamus relief,
either by ordering the district court to act on his
application for writ of habeas corpus filed on October 3,
2016, or grant the relief sought in his habeas corpus
application. In the alternative, this Court can dismiss the
charges and/or indictment pursuant to the order discharging
Relator from deferred adjudication probation.
VI. PRAYER
Relator states that he is entitled to mandamus relief
because of the trial court's failure to follow the writ of
habeas corpus proceedings.
WHEREFORE, PREMISES CONSIDERED, Juan Gabriel Cisneros
prays that the Court grants mandamus relief.
VII. VERIFICATION
I, Juan Gabriel Cisneros "Relator", declare under the
penalty of perjury that the foregoing is true and correct to
the best of his knowledge, understanding and belief.
Executed on this the 19th day of September, 2017.
iESPECTFULLY SUBMITTED
^ ^AN GABRIEL CISNEROS
REG. NO. 40178-079
USP-VICTORVILLE
P.O. BOX 3900".,..
ADELANTO, CA 92301
Page 12 of 12
CERTIFICATE OF SERVICE
I, Juan Gabriel Cisneros, certify that a true and correct
Copy of the foregoing Application for a Writ of Mandamus was
sent, via first class mail, to: Noe Guerra, Brooks County
District Clerk, 79th Judicial District Court, P.O.Box 534,
Falfurrias, Texas 78355, on this the 19th day of September,
2017.
juAn Gabriel cisneros
REG. NO. 40178-079
USP-VICTORVILLE
P.O. BOX 3900
ADELANTO, CALIFORNIA 92301
K\(nC) rued /..V
PA'Il 1 ^ W
OCT 3 2016
Cause No. 88-02-02179
JUAN GABRIEL CISNEROS )
IN THE DISTRICT COURT
79th judicial DISTRICT
VS.
BROOKS COUNTY, TEXAS
THE STATE OF TEXA^
APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT
TO TEXAS CODE OF CRIMINAL PROCEDURE. ARTICLE 11.08
NOW COMES, Juan Gabriel Cisneros (hereinafter
"Applicant"), proGeeding pro-se, and makes this Application
for Writ of Habeas Corpus and for good cause shows the
following: '
I. . ,
The above-named Applicant, Juan Gabriel Cisneros states
and asserts he is being unlawfully restrained of his personal
liberty by Respondent, the State of Texas, in violation of
State and Federal Constitutions by reason of Ineffective
Assistance of Counsel, when Counsel abandoned on February 21,
198-9 a valid claim of Innocence, and instead. Coerced the
Applicant to plead guilty to a possession of marihuana
charge, in which he was placed on two (2) years deferred
adjudication probation and discharged on or about April 29,
1991.
However, on June 19, 1995 Applicant was convicted of
conspiracy to possess with intent to distribute marihuana in
violation of 21, U.S.C. Section 841 (a), and sentenced to
mandatory life without release under Section 841(b)(1)(A), aS
PAGE 2 OF 22
a result of the two (2) year deferred adjudication probation,
which was used as the basis of a prior offense for purposes
of enhancement and the subsequent sentence of mandatory life
without release.
II-
This Court has jurisdiction pursuant to Article 11.08 of
the Texas Code of Criminal Procedure. Also see Donovan v.
State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002).
Ill.
Applicant has filed a previous application pro-se on
about August 5, 2008, pursuant to Article 11.07, which was
dismissed on about October 3, 2008 for want of jurisdiction,
because community supervision was not revoked. (See Docket
Entry 4.1) .
Applicant filed a previous application with the aid of
habeas counsel on about June 14, 20lO, pursuant to Article
11.08, the correct vehicle in this deferred adjudication
case. (See Docket Entry 42).
In this application. Applicant alleged that his guilty
plea was obtained by inducement, in that it was not
voluntarily asserted nor was the full understanding of the
consequences known to Applicant at the time of the
agreement.
Applicant was denied effective assistance of counsel,
Eugenio A. Soils, Jr., failed to familiarize himself with the
facts and law pertaining to the very issues raised in that
application. Applicant's retained counsel induced him to
plead guilty by misleading applicant about the consequences
of accepting deferred adjudication probation. Furthermore,
PAGE 3 OF 22
retained counsel mislead and unlawfully induced applicant to
accept a plea agreement for deferred adjudication probation,
by misinforming applicant, if plead guilty and accepted the
deferred adjudication probation, and his probation was not
revoked, the judge would sign an order of dismissal of the
underlying Crime, the effect of which would be as if the
crime had never occurred and the offense on his record would
be permanently removed.
An evidentiary hearing was held on this application on
July 25, 2011, and eventually denied on the 26th day of July
2011. (See Docket Entry 68).
writ of habeas counsel, Rudy Wattiez filed an untimely
notice of appeal (See-Docket Entry 82), and eventually the
appeal was dismi&sed for want of jurisdiction., (See Docket
)
Entry 104).
IV.
Applicant alleges he was denied effective assistance of
trial counsel on a different ground.
Given that applicant had previously asked his habeas
counsel about this unraised claim, and had informed him to
raise it in the initial application under article 11.08, but
was told by habeas counsel that it was not necessary. That
the ineffective assistance of counsel claim already raised
in the application was more than enough to get a reversal of
the conviction. Applicant otherwise did not doubt his
habeas counsel's representation. Applicant is entitled to
bring his subsequent application for writ , of habeas corpus
pursuant to Article 11.08 of the Texas Code of Criminal
Procedure.
PAGE 4 OF 22
Article 11.08 of the Texas Code of Criminal Procedure
does not bar an applicant from filing a subsequent
application under Article 11.08.
Moreover, applicant presents a claim of ineffective
assistance of trial counsel that was not presented to the
habeas court in the initial collateral review proceedings
and, perhaps, is procedurally barred because of the
ineffectiveness of his original state habeas counsel.
Applicant seeks to challenge his guilty plea, specifically,
applicant asserts that he should be allowed to pursue his
claim that he was provided with ineffective assistance of
habeas counsel during initial review collateral proceedings
in the habeas court, relying upon the United States Supreme
Court in Martinez v. Ryan, 132 S. Ct. 1309, 182 L.Ed 2d 272
(2012), and Trevino v. Thaler, 133 S. Ct. 1911, 185 L.Ed 2d
'1044 (2013). Applicant moves for habeas relief and seeks an
"opportunity to challenge state habeas counsel's
effectiveness." Applicant contends that under Martinez and
Trevino, he is entitled to present and have the trial
court consider the evidence that was not submitted to the
state habea^s court due to state habeas counsel's failures.
The evidence that applicant would like to present to the
court is that before his plea arraignment hearing of
February 27,, 1989, applicant informed trial counsel,
Eugenie A. Solis, Jr., that he was innocent of the crime he
was charged with, that he took the blame of the drugs due to
coercion on part of his mother, to protect her from going to
jail. Trial counsel Eugenio Solis, informed applicant that he
had already reviewed the evidence against him and that the
PAGE 5 OF 22
district attorney had offered a plea bargain. That, since
he had already accepted responsibility for the drugs found
in the truck, he h^d no other choice but to plead guilty.
That the offer the district attorney had extended if
completed, would be if he was never charged.
V.
BACKGROUND FACTS
On about January 15, 1988, while driving a pick-up truck
belonging to. his father (since deceased), applicant and his
mother, Maria Martha Cisneros, driving alongside him as a
passenger, were stopped at a Department of Public Safety
traffic checkpoint, at which time the vehicle was searched
without applicant's or his mother's consent. The vehicle was
determined to have several pounds of marihuana hidden in the
engine compartment.
Applicant's mother told him to take responsibility for
the marihuana found in the pick-up truck, and to stay quiet
and don't say that she knew of the marihuana. That for him
not to worry, that she would hire an attorney to get him out
of jail and take care of the problem. That everything was
going to be alright. Applicant told his mother that he
didn't want to take responsibility for something he knew
nothing about. Applicant's mother told him that he had to
take responsibility for her, because she was his mother and
he had to protect her from going to jail. That he was young
and wouldn't get that much time in jail, compared to her
and her age. That anyhow he had to take responsibility for
her because she was his mother. Based upon this threats and
coercion, applicant accepted responsibility for the marihuana
PAGE 6 OF 22
found in the pick-up truck and gave a false statement to
the State Trooper. See Sworn Affidavit of Juan Gabriel
Cisneros, attached hereto and incorporated herein for
purpose hereof as Exhibit 1; Also see Sworn Affidavit of
Maria Martha Gisneros, attached hereto and incorporated
herein for purpose hereof as Exhibit 2.
The applicant was placed under arrest at that time for
possession of marihuana, at the time of arrest, applicant was
young and did hot have any criminal record associated with
illegal drugs. Id.
Applicant's mother retained attorney Eugenio A. Sblis,
Jr., to represent applicant on the pending criminal case.
Attorney Eugenio A. Solis, Jr., got applicant out of jail on
bond. Id.
Before the plea arraignment hearing, applicant informed
attorney Eugenio A. Solis, Jr., that he was innocent of the
crime. That he took the blame just to protect his mother,
that his mother had told him to stay quiet and for him hot to
say She knew of the marihuana. That she would hire an
attorney and get him out of jail. That the attorney would
take care of the problem and that everything would be
alright. Id.
Applicant further informed attorney, Eugenio A. Solis,
Jr., that he refused to take the blame at first, and told
his mother that he didn't want to take responsibility for
something he knew nothing about. But that his mother had told
him that he had to take responsibility, because she was his
mother and, he had to protect her from going to jail. That he
was young and wouldn't get that much time in jail, compared
PAGE 7 OF 22
t:o her and her age. That anyhow he had to accept
responsibility because she was his mother.
That based upon this threats and coercion, applicant
accepted culpability for the marihuana found in the vehicle.
Id.
Applicant was determined to have a jury trial which would
prove his innocence. Applicant continues to deny he had any
knowledge of the illegal drugs found in the vehicle he was
driving. Id. Also see Attorney Eugenio A. Soils, Jr., Sworn
Affidavit at ^2, attached hereto and incorporated herein
for purpose hereof as Exhibit 3.
However, attorney Eugenio A. Soils, Jr., informed
applicant that since he had already accepted responsibility
for the drugs to the Texas State Trooper, he could not use
his innocence of the crime . as a defense. Instead, attorney
Eugenio A. Soils, Jr., informed applicant that the only
defense he had was that the Texas State Trooper did not have
consent to search the vehicle nor did he had reasonable
suspicion or probable cause to search the vehicle. That
attorney Eugenio A. Soils, Jr., could present those defenses
to the jury under Texas law. See Article 38.23(a) of the
Texas Code of Criminal Procedure. See Exhibit 1.
Notwithstanding the fact that Applicant had informed
attorney Eugenio A. Soils, Jr., that he was innocent of,the
charges of possession of marihuana. That he had accepted
culpability because his mother had coerced him into taking
the blame to protect her from going to jail, attorney Eugenio
A. Soils, Jr., informed applicant that he couldn't use that
as a defense to prove his innocence, and by doing same
PAGE 8 OF 22
abandon a valid claim of innocence. See Exhibit 1.
Attorney Eugenio A. Solis, Jr., fuirther informed
applicant that he would review and study the merits of his
defense, and the facts of the case against him. See
Exhibit 3 at 1l2 . ,
After reviewing the evidence against applicant of the
Safety Traffic checkpoint stop, and studying the merits of
his defense, attorney Eugenio A. Solis, Jr., informed
applicant that there was no picture of the burnt marihuana
as alleged by the State of Texas State Trooper. He further
informed applicant that he had discussed the case with the
district attorney. That the district attorney was overload
with checkpoint cases and had extended an plea agreement in
his case. That the plea offer consisted of a recommendation
to the judge of a two (2) year deferred adjudication
probation in exchange for applicant's guilty plea. See
Exhibit 3 at f3. .
Attorney Eugenio A, Solis, Jr., affirmatively informed
and advised applicant, that he, as applicant's attorney,
was looking out for applicant's best interest and that
applicant best interest was to accept the district attorney's
plea offer. That since applicant had already accepted
responsibility for the marihuana found in the vehicle he was
driving, he had no other choice but to plead guilty. See
Exhibit 1:.
Attorney Eugenio A. Solis, Jr., further informed
applicant that, notwithstanding the fact that he was pleading
guilty, the plea offer of two (2) years deferred
adjudication probation, if successfully completed, the
PAGE 9 OF 22
district judge would sign an dismissal order that would be
the equivalent to an acquittal of the charges. The effect of
which would be as if applicant was found innocent of the
crime. See Exhibit 3 at i!3.
On FebruarY 27, 1989, during the plea arraignment
hearing, applicant believing that his attorney Eugenio A.
Solis, Jr., was correctly informing and advising him, plead
guilty and at the same moment was sentenced to a two (2) year
term of deferred adjudication probation. (See Docket Entry
22).
On April 29, 1991, applicant was discharged from deferred
adjudication probation by court order and filed for record
the same date. (See Docket Entry 39).
On June 19, 1995, applicant was convicted in federal
court of conspiracy to possess with intent to distribute
marihuana in violation of Title 21 USC §§ 841(a), 846 and
sentenced to a mandatory life without release under §§
841(b)(1)(A), 851, as a result of the two (2) year deferred
adjudication probation, which was used as the basis of a
prior offense for purposes of enhancement and the subsequent
sentence of mandatory life without release.
Applicant retained attorney Rudy Wattiez, from San
Antonio, Texas, to prepare and file an application for writ
of habeas corpus pursuant to article 11.08 of the Texas Code
of Criminal Procedure. Article 11.08 is the proper vehicle to
challenge a guilty plea that resulted in deferred
adjudication probation.
Applicant informed attorney Rudy Wattiez, that he wanted
to raise in his application the following issues: l)That his
PAGE 10 OF 22
guilty plea was obtained via a plea of which was unlawfully
induced in that it was not voluntarily asserted nor was the
full understanding of the consequences known to the applicant
at the time of the agreement; 2)Ineffective Assistance of
Counsel pertaining to the guilty plea claim raised in issue
one, and; 3)Applicant was denied the Effective Assistance of
Counsel, when Trial Counsel abandon a valid claim of
Innocence. See Exhibit 1.
Oh about June 14, 2010, attorney Rudy Wattiez, filed on
behalf of applicant, an application for writ of habeas corpus
pursuant, to Article 11.08 of the Texas Code of Criminal
Procedure. Attorney Rudy Wattiez, however, failed to raise
the ineffective assistance of counsel claim pertaining to the
abandonment of a valid claim of innocence. Attorney Rudy
Wattiez only raised the involuntariness of applicant's guilty
plea and ineffective assistance of counsel pertaining to the
involuntary guilty plea. (See Docket Entries 42, 55 and 64).
An evidentiary hearing was held on this application on
July 25, 2011, and that same day it was denied. (See Docket
Entry 68).
Attorney Rudy Wattiez, informed applicant he would
appeal the courts denial, however, he filed an untimely
notice of appeal and the appeal was dismissed as untimely.
(See Docket Entry 82).
PAGE 11 OF 22
VI.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984), the Supreme Court established a two component
standard for judging claims of Ineffective Assistance of
iCounsel. First, "the defendant must show that counsel's
performance fell below an objective standard of
reasonableness." Secondly, "the defendant must, show a
reasonable probability, but for counsel's unprofessional
errors, the result of the proceedings would have been
different. A reasonable probability is probability
sufficient to undermine confidence in the outcome."
A defendant alleging that the entry of the guilty plea
was the result of ineffective assistance of counsel "must
show" that there is a reasonable probability that, but for
counsel's errors, he would not had plead guilty, and would
have insisted on going to trial. Hill v. Lockhart, 474 U.S.
52, 106 S. Ct. 366 at 370 (1985).
A plea of guilty must as with a matter of due process, be
voluntary, knowing and an intelligent act. U.S. v. Guerra, 94
F.3d 989 (5th Cir. 1996). To constitute an intelligent act,
it must be "done with sufficient awareness of the relevant
circumstances and likely consequences." McMann v. Richardson,
397 U.S. 759, 766 (1970).
A guilty plea "is open to attack on the ground that
counsel did not provide the defendant with 'reasonably
competent advice.'" Cuyler v. Sullivan, 446 U.S. 335, 344
(1980)(quoting McMann v. Richardson, 397 U.S. 759, 770
(1970)); of. Hill V. Lockhart, 474 U.S. 52, 58-59
PAGE 12 OF 22
(1985)(holding that, in the plea context, a habeas
Petitioner establishes ineffective assistance of counsel by
demonstrating that counsel's advice and performance fell
below an objective standard of reasonableness, based upon
which he pled guilty).
VII.
SUMMARY OF ARGUMENT
Applicant's guilty plea was involuntarily,
unintelligently and unknowingly as a product of
misinformation arid coercion. Applicant entered into a guilty
plea/ after he had steadfastly informed his attorney Eugenio
A. Solis, Jr., that he was innocent of the charges against
him and wanted to take the case before a jury trial which
would prove his iririocence.
Trial attorney Eugenio A. Solis, informed Applicant that
he had already reviewed the evidence agairist him. That, since
Applicant had already accepted responsibility for the drugs
found in the truck, he had no other choice but to plead
guilty. That the district attorney had offered a plea
bargain. That the offer the district attorney had extended if
completed, would be if he was never charged.
attorney Eugenio A. Solis, affirmatively informed,
and advised Applicant, that he, as Applicant's attorney, was
looking out for his best interest in the case and that
Applicant's best interest was to accept the district
attorney's plea offer. , .
On February 27, 1989, during the plea arraignment
hearing. Applicant believing that his attorney Eugenio A.
Solis, was correctly informing and advising him, plead guilty
PAGE 13 OF 22
and at that same moment was sentenced to a two (2) year term
of deferred adjudication probation.
However, on June 19, 1995, Applicant was convicted in
federal court of conspiracy to possess with intent to
distribute marijuana in violation of Title 21 USC §§ 841(a)
and 846 and sentenced to a mandatory life without release
sentence under §§ 841(b)(1)(A) and 851, as a result of the
two (2) year deferred adjudication probation conviction,
which was still in his record and was used as the basis of a
prior offense for purposes of enhancement and the subsequent
sentence of mandatory life without release.
Applicant's attorney provided ineffective assistance in
getting Applicant to forgo a jury trial when Applicant had
,steadfastly informed him that he was innocent of the charges
against him and wanted to prove his innocence in a trial by
jury. Moreover, Applicant's attorney provided ineffective
assistance when he affirmatively informed Applicant that,
notwithstanding the fact that he was pleading guilty, the
plea offer of two (2) years deferred adjudication probation,
if successfully completed, the district judge would sign an
dismissal order that would be the equivalent to an aquittal
of the charges. The effect of which would be as if Applicant
was found innocent of the crime.
The ineffectiveness of Applicant's trial attorney
prejudiced the outcome of the criminal proceedings. If
Applicant would have known that said guilty plea and
conviction would remained in his record and later used for
enhancement- purposes-, he never would have entered a guilty
plea, and would have persisted in a trial by jury.
PAGE 14 OF 22
VIII.
ARGUMENT
INEFFECTIVE^ASSISTANCE QF COUNSEL
In the instant case, Applicant alleges that he received
ineffective assistance of counsel. Applicant asserts that he
informed his trial attorney Eugenio A. Soils, before the plea
arraignment hearing, that he was innocent of the charges
against him. That he had taken the blame just to protect his
mother, that his mother had told him to stay quiet and for
him not to say she knew of the marijuana.
Applicant further informed trial attorney Eugenio A.
Soils, that he had refused to take the blame at first, and
told his mother that he didn't want to take responsibility
for something he knew nothing about. But that his mother
coerced him to take responsibility. That based upon this
threats and coercion of his mother. Applicant accepted
responsibility for the marijuana found in the vehicle.
Applicant steadfastly informed trial attorney Eugenio A.
Soils, that he was determined to have a jury trial which
would prove his innocence.
However, trial attorney Eugenio A. Soils, informed
Applicant that since he had already accepted responsibility
for the drugs found in the vehicle to the State Trooper, he
couldn't use that as a defense. That he had discussed the
case with the district attorney, and the district attorney
was overload with checkpoint cases and had extended a plea
agreement in his case. That the plea offer consisted of a
recommendation to the judge of a two (2) year deferred
adjudication probation in exchange for Applicant's guilty
plea.
PAGE 15 OF 22
Attorney Eugenic A. Soils, affirmatively informed and
advised Applicant that he, as his attorney, was looking out
for his best interest in the case, and that his best interest
was to accept the district attorney's plea offer, That since
Applicant had already accepted responsibility for the
marijuana found in the pick-up truck, he had no other choice
but to plead guilty.
Attorney Eugenic A. Soils, further informed Applicant
that, notwithstanding the fact that he was pleading guilty,
the plea offer of two (2) years deferred adjudication
probation, if successfully completed, the district judge
would sign a dismissal order that would be the equivalent to
an acquittal of the charges. The effect of which would be as
if Applicant, was found innocent of the crime.
On.February 27, 1989, believing that his attorney Eugenic
A. Solis, was correctly informing and .advising him. Applicant
plead guilty and at same moment was sentenced to a two (2)
year deferred adjudication probation.
However, on June 19, 1995, Applicant was convicted in
federal court of conspiracy to possess w/i to distribute
marijuana, and was shocked when he was sentenced to a
mandatory life without release as a result of the two (2)
year deferred adjudication probation conviction, which was
still in his record and used as the basis of a prior offense
for purposes of enhancement and the subsequent sentence of
mandatory life without release.
The Supreme Court has made clear that "[t]he Sixth
Amendment requires effective assistance of counsel at
critical stages of a criminal proceeding." Lafler v. Cooper,
PAGE 16 OF 22
132 S. Ct. at 1385 (2012). "The constitutional guarantee
applies to pretrial critical stages that are part of the
whole course of a criminal proceeding, a proceeding in which
defendants caanot be presumed to make critical decisions
without counsel's advice." Id. Convictions by guilty plea -
which make up between ninety-four and ninety-seven percent
of convictions matiohwide - "have become so central to the,
administration of the criminal justice system that defense
counsel have responsibilities in the plea bargain process ...
that must be met to render the adequate assistance of counsel
that the Sixth Amendment requires in the criminal process at
critical stages," Frye v. Missouri, 132 S.Ct,. at 1407
(2012). "Indeed, this Circuit has observed that providing
counsel to assist a defendant in deciding whether to plead is
'[b]ne of the most precious applications of the Sixth
Amendment.'" United States v. Rivas-Lopez, 678 P.3d 353, 356
(5th Cir. 2012)(quoting United States v. Grammas,. 376 F.3d
433, 436 (5th Cir. 2004) . Thus, before a defendant decides
whether to plead guilty, "counsel's function as assistant to
the defendant [gives rise to] the overarching duty to
advocate the defendant's cause and the more particular duties
to consult with the defendant on important decisions" after
"mak[ing] reasonable investigations." Strickland, 466 U.S. at
688, 691.
The trial court is well aware that attorney Eugenio A.
Soils, didn't even bother to file any motion and/or pretrial
motions in the case on behalf of Applicant,in over a year,
while the case was pending. Instead, attorney Eugenio A.
Soils, affirmatively misinformed Applicant and gave bad
PAGE 17 OF 22
advice to induce him to plead guilty.
A guilty plea may be accepted by the Court only if it is
free and voluntary. TEX. CODE CRIM. PROC. ANN. art.
26.13(b)(Vernon 1989). An accused is entitled to effective
assistance of counsel during the plea bargaining process. Ex
parte Battle, 817 S.W.2d 8l, 83 (Tex. Crim. App. 1991). A
defendant's election to plead guilty when based upon
erroneous advice of counsel is not made voluntarily and
knowingly, id. Also see Abu-Ein v. State, 921 S.W.2d 807,
808 (Tex. App. Houston [14th Dist] 1996, pet. ref'd).
Applicant contends that instead of proceeding to trial,
attorney Eugenio A. Soils, affirmatively misinformed
Applicant by informing him that, since he had already
accepted responsibility for the marijuana found in the truck
to the State Trooper, he had no other choice, but to plead
guilty. And gave bad advice to induce him to plead guilty.
Applicant contends that he received affirmative
misinformation and bad advice from his attorney Eugenio A.
.Solis, which rendered his plea unknowingly, unintelligently,
and involuntarily.
Applicant is aware of the fact that he was questioned by
the trial court prior to accepting the plea and sentencing,
but as he thought he had been correctly informed by his
attorney and had been instructed by him to answer the
questions, so that the court would accept the guilty plea,
this does not preclude him from raising this collateral
attack^ especially since he did not plead guilty and did not
received what his attorney affirmatively informed and advice
him. The fact that the court admonished Applicant, that did
PAGE 18 OF 22
not affect the belief of Applicant, that if he successfully-
completed the two years of deferred adjudication probation,
the district judge would sign an dismissal order that would
be the equivalent to an aquittal of the charges. The effect
of which would be as if Applicant was found innocent of the
crime.
Given the U.S. Supreme Court's repeated emphasis on the
paramount irriportance of providing effective representation
and competent advice regarding the consequences of conviction
before entry of the defendant's guilty plea, it cannot be
concluded that the prejudice caused by a violation of that
duty can be categorically erased by a judge's general and
laconic statement during the plea hearing after the
bargaining process is complete and immediately prior to the
court's acceptance of the guilty plea. See, e.g.. United
States V. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d
657 (1984)("[T]he adversarial process protected by the Sixth
Amendment requires that the accused have 'counsel acting in
the role of an advocate.'").
Indeed, as the Supreme Court in Lafler and Frye makes
clear, if a full and fair trial or an otherwise voluntary
guilty plea cannot "inoculate [] [counsel's] errors in the .
pretrial process" from collateral attack under Strickland,
see Frye, 132 S. Ct. at 1407, neither can a trial judge's mere
statement at a plea colloquy function to bar a petitioner
from demonstrating that he was prejudiced by counsel's
deficiencies during the pre-guilty-plea stage of proceedings.
Lafler, at 1385.
The Court in both Lafler and Frye therefore made clear
PAGE 19 OF 22
that if the defendant establishes ineffective assistance of
counsel during the plea negotiation stage of proceedings, a
subsequent, otherwise - voluntary guilty plea or even a full
and fair trial does not necessarily "wipe[] clean any
deficient performance by defense counsel during plea
bargaining."
Further, and perhaps most significantly, by the time the
plea colloquy occurs, the plea bargaining process is over -
and with it, defense counsel's opportunity to negotiate and
advise the client.
Attorney Eugenio A. Soils's performance in this case was
constitutionally deficient.
Trial attorney Eugenio A. Soils, informed Applicant that
he had already reviewed the evidence against him. That,
since Applicant had already accepted responsibility for the
drugs found in the truck, he had no other choice but to plead
guilty. And that the district attorney had offered a plea
bargain. That the offer the district attorney had extended if
completed, would be if he was never charged.
Attorney Eugenio A. Soils, affirmatively informed and
advised Applicant that he, as his attorney, was looking out
for his best interest in the case, and that his best interest
was to accept the prosecutor's plea offer.
On February 27, 1989, during the plea arraignment
hearing. Applicant believing that his attorney Eugenio A.
Soils, was correctly informing and advising him, plead guilty
and at that same moment was sentenced to a two (2) year term
of deferred adjudication probation.
However, on June 19, 1995, Applicant was convicted in
PAGE 20 OF 22
federal court and sentenced to a mandatory life without
release - sentence as a result Of the two (2) year deferred
adjudication probation, which was used as the basis of a
prior offense for purposes of enhancement.
Petitioner had a strong desire to proceed to jury trial to
prove his innocence, however, he was induced by his
attorney's affirmative misinformation and bad advice. Had
attorney Eugenio A. Solis, correctly informed him that after
completing the two years of deferred adjudicatio^i probation
the conviction would still remain in his record and could be
used for enhancement purposes in a subsequeh't conviction,
there is a reasonable probability that Applicant would have
proceeded to trial. There is also a reasonable probability
that had Applicant proceeded to trial, that the court would
have thrown out the case due to the illegal search and
seizure or the jury would have found him not guilty and/or
acquitted of the charges.
Counsel's represehtatioh was certainly below a standard
of reasonableness. Counsel's misrepresentation of.material
facts and law, constitutes ineffective assistance of counsel
and entitles Applicant to relief herein. Counsel's errors in
this case were so flagrant, that the court can conclude that
it resulted from neglect or ignorance rather than an informed
professional deliberation.
Applicant's reliance on his counsel's blatant and
significant misrepresentation rendered his plea Unknowing and
was violative of Applicant's due process rights. See Hill,
474 U.S. at 56.
Based upon counsel's affirmative misinformation and bad
PAGE 21 OF 22
advise, Applicant was led to believe that pleading guilty was
an adequate resolution to his situation.
Counsel's performance fell below the minimum standard of
reasonableness which prejudiced Applicant when he found out
that the misinformed guilty plea and conviction that resulted
in the two years deferred adjudication probation was still in
his record and used as the basis of a prior offense for
purposes of enhancement and the subsequent sentence, of
mandatory life without release.
If attorney Eugenio A. Soils, had fully and properly
informed Applicant of the actual consequences of pleading
guilty, there is no way that Applicant, or any rational
person, would have pleaded guilty. See Hill, supra.
IX.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this
Court grant this Application for Writ of Habeas Corpus, and
issue a Writ of Habeas Corpus to the State of Texas and the
Federal Bureau of Prisons, directing and commanding
production of Applicant Juan Gabriel Cisneros before this
Court instanter, or at such time and place to be designated
by this Court, then and there to show cause, if any there
may be, why Applicant Juan Gabriel Cisneros should not be
discharged from such illegal confinement. Or in the
alternative, vacate the conviction and allow Applicant Juan
Gabriel Cisneros, to withdraw hie guilty plea and/or dismiss
the indictment. And any other relief as the Court deems just
and proper in conformance to the relief sought.
I, Juan Gabriel Cisneros, Applicant declare under the
PAGE 22 OF 22
penalty of perjury, pursuant to Title 28 USC 1746, that the
above and foregoing is true and correct to the best of my
own personal knowledge, understanding and belief.
Executed: September 19, 2016.
RESPECTFULLY SUBMITTED
JflanGiCisneros
Reg. No. 40178-079
United States Penitentiary
P.O.Box 3900
Adelanto, OA 92301
PAGE 1 OF 3
THE STATE OF CALIFORNIA )
^ Cause No. 88-02-02179
COUNTY OF SANBERNARDINO )
SWORN AFFIDAVIT OF JUAN GABRIEL CISNEROS
I, Juan Gabriel Cisneros, hereby affirm under the penalty
of perjury, pursuant to Title 28 USC § 1746, that the below
statements that I have made are true and correct to ths best
of my ability, understanding and belief.
1. Juan Gabriel Cisneros, am over the age of 18 years and
am of sound mind-to make this affidavit.
1. 1 am the Defendant/Applicant so named in the
Application for Writ of Habeas Corpus under Article 1108.
2. The statements and allegations contained within my
instant motion are true and correct.
3. At the time of this case I was young and did not have
any criminal record associated with illegal drugs,
4. Eugenic A. Solis was my attorney in Case No. 88-02-
02179.
5. My guilty plea was involuntarily, unintelligently and
unknowingly entered and was a product of misinformation and
coercion by attorney Eugenic A Solis.
6. I entered into a guilty plea, after I had steadfastly
informed my attorney Eugenic A. Solis, that I was innocent of
the charges against me and wanted to take the case before a
jury trial which would prove my innocence. It was my desire
back then and continues to be my desire today to plead not
guilty to the possession of marijuana charge. I further
assert, I had ho prior knowledge of any marijuana being
PAGE 2 OF 3
present in the vehicle I was driving.
7. Attorney Eugenic A. Solis, informed me that he had ^
already reviewed the evidence against me and that since I had
already accepted responsibility for the drugs found in the
truck, I had no other choice but to plead guilty.
8. The district.attorney had offered a plea bargain.
9. The offer the district attorney had extended if
completed, would'be if he was. never charged.
10. Attorney Eugenic A. Solis, affirmatively informed and
advised me, that he, as my attorney, was looking out for his
best interest and that my best interest was to accept the
district attorney's plea offer.
11. On February 27, 1989,' during the plea arraignment
hearing, believing that my attorney Eugenic A. Solis, was
correctly informing and advising me, I plead guilty and at
that same moment was sentenced to a two (2) year term of
deferred adjudication probation.
12. I successfully completed the two (2) year deferred
adjudication probation.
13. On June 19, 1995, I was convicted in federal court of
conspiracy to possess with intent to distribute marijuana
and sentenced to a mandatory life without release as a result
of the two (2) year deferred adjudication probation
conviction which was still on my record and was used as the
basis of a prior offense for purposes of enhancement and the
subsequent sentence of mandatory life without release.
14. I retained attorney Rudy Wattiez, from San Antonio,
Texas, to prepare and file an application for writ of habeas
corpus, pursuant to article 11.08 of the Texas COde of
PAGE 3 OF 3
Criminal Procedure.
15. I informed attorney Rudy Wattiez, that I wanted to
raise in the application the following issues: 1) That my
guilty plea was obtained via a plea of which was unlawfully
induced in that it was not voluntarily asserted, nor was the
full understanding of the consequences known to me at the
time of the agreement; 2) Ineffective Assistance of Counsel
pertaining to the guilty plea claim raised in issue one; and
3) I was denied the Effective Assistance of Counsel, when
trial counsel abandon a valid claim of- innocence.
16. Habeas attorney, Rudy Wattiez failed to raise the
Ineffective Assistance of Counsel claim pertaining to the
abandonment of a valid claim of innocence.
17. Habeas attorney, Rudy Wattiez filed an untimely notice
of appeal, which prejudiced my appeal.
FURTHER AFFIANT SAYETH NAUGHT.
Executed on: September 19, 2016.
RESPECTFULLY/SUBMITi:Eb
Ju^ GabrieT Cisneros
Reg. No. 40178-079
United States Penitentiary
P.O.Box 3900
Adelanto, OA 92301
"ExK\bV
STATE OF TEXAS )
) CAUSE NO. 88-2179
COUNTY OF STARR )
AFFIDAVIT
My name is Martha Cisneros, and am over the age of 18 years and
competent to make this affidavit.
. I am the mother of Juan Gabriel Cisneros, and on January 15,
1988, I put 115 lbs. of marijuana in the engine compartment
of my husbands pick-up truck.
. After putting the marijuana in the pick-up truck, I asked
Juan Gabriel Cisneros, to take me to Corpus Christi, Texas, in
my husbands pick-up truck. Juan Gabriel Cisneros, did not know
or had any knowledge of the raarijuana being hidden in the engine
compartment of the pick-up truck he was driving.
. When we were stopped at a Department of Public Safety traffic
checkpoint, the DPS Trooper, without giving him consent, searched
the pickr-up" t^ and found the marijuana I had hidden in the
engine coMpartraent.
. At the time the DPS Trooper found the marijuana, I told Juan
Gabriel Cisneros, to take responsibility of the marijuana and
for him to stay quiet and not to say that I knew of the marijuana.
. When I told Juan Gabriel Cisneros, to take responsibility of
the marijuana, he told me he didn t want to take responsibility
for spmething he knew nothing about. To which I responded in a
threatening manner, that he hacj to take responsibility because
I was his motheri
. Juan Gabriel Cisneros, took responsibility of the marijuana
because I pressured arid threatened him, and not because he knew or
had knowledge of the marijuana found in the pick-up truck he was
driving.
. I am the person responsible for putting the marijuana in the
engine compartment of the pick-up truck that my son Juan Gabriel
Cisneros, was driving on January 15, 1988.
. I hired attorney Eugenio A. Solis, Jr., to represent my son,
Juan Gabriel Cisneros. I told attorney Eugenio A. Solis, Jr., to
do whatever he had to, to get my son on some kind of probation.
I, Martha Cisneros, certify under the penalty of perjury, pursuant
to 28 U8C § 1746, that the above declaration is true and correct, to the
best of my own personal knowledge, understanding and belief.
Executed on this the 15th day of Septerabet, 2016.
Respectfully
Martha Cisneros
3-Cisneros Lane
Roma, Texas 78584
CAUSE NO.2179
EX PARTE; X IN THE DISTRICT COURT
JUANCISNEROS X
^
79^" JUDICIAL COURT
BROOKrCOUNTYTTEXAS
AFFIDAVIT
STATE OF TEXAS X
COUNTY OF JIM WELLS X
BEFORE ME,THE UNDERSIGNED AUTHORITY,on this the 26"day of
May, 2,000 personally appeared EUGENIC) A. SOLIZ, JR., personally known to
nie, and being duly swora, declared to me the following:
1. My iiaine is Eugenio A.Soliz, Jr. On January 15, 1988^ I was practicing law
in the State of Texas licensed by the State Bar of Texas, and said day I was
employed to represent Juan Cisncros on a charge of possession of
marijuana in Brooks County, Texas. The criminal case was styled "The
State of Texas vs. Juan Cisneros", Cause No. 2179.
2. Mr. Cisneros stated to me at the time that Lwas being retained that he
Wanted to fight the case and that he wanted a jury trial. Although he felt
that he was not guilty, I needed to study the merits of his defense, and the
facts of the case against him. Mr. Cisneros disclosed to me that he felt more
comfortable going to a jury trial with a counsel of his choice than with a
court appointed counsel.
3. The District Attorney at the time had an open file policy whereby the
evidence against the defendant could be viewed without the necessity of
forcing discoyeiy. After reviewing the facts of the border check point stop,
and discussing the case with the District Attorney, who was overloaded with
checkpoint cases, an offer was made by the District Attorney to recommend
Deferred Adjudication Probation for a term of two years in exchange for
Mr. Cisneros' plea of guilty. I advised Mr. Cisneros of the offer and
further advised him that if his probation was not revoked within the two
year term that the District Judge would sign a dismissal order and that
would be as if there had never been an offense eonviction, his record would
be clean..I reiterated to Mr. Cisneros that a dismissal by the court would
like never having been convicted.
4. After hearing the advice, Mr. Cisncros agreed to plead guilty to the charge
in the indictment. He received a "Deferred Adjudication and Probation"
for a term of two(2) yean the 27"* day of February, 1989. A certified copy
of said "Deferred Adjudication and Probatipn" is attached hereto and
incorporated herein for purposes hereof as Exhibit 1.
5. Although I advised Mr. Cisneros that if he successfully completed his term
of probation, that the conviction would not show on his record, I now
realize that a federal judge has used the record to enhance a sentence, even
though an "Order Discharging Defendant from Deferre^ Adjudication
Probation" is on file signed by the District Judge on the 29 day of April,;
1991. A certified copy of the said order is attached hereto and incorporate
herein for purposes hereof as "Exhibit 2". The use of the said Cause No.
2179, the plea of guilty and the deferred adjudication probation is contrary
to what I initially assured Mr. Cisneros.
Executed this 26"* day of May 26,2000.
Elrgeihio Ai S0I12, Jr
SWORN AND SUBSCRIBED to before me by the said Eugenio A. Soliz, Jr. on this
the 26"* day of May 26,2000.
»nrNotary
Public in and for the State
Of Texas GEORGE M,MORALES
^ MYC0MU)6810MEXP Commit no offense against the laws of this State or
any other State or of the United States;
Avoid injurious or vicious habits;
fc) Avoid persons or places of disreputable or harmful
character; HLED
£10 inucx
C0i4
td) Report to the fidult Probation Officer of this County,
who is hereby appointed to supervise this probation, once each
calmdar month duning the tenm of thlB probation;
te) Permit the said Probation Officer to visit you at your
home or elsewhere in order to supervise your probation;
fiBinain within the State of Texas unless granted
written permission to leave;
Pay al1 Court Costs of +7b. Ibfi ana Lourc ^ppointea
attorney's fees of -0
withl" ^___^days of this
date;
th) Pay a fine of S a.nnn nn
/$1,000.00 on 2/27/89 and balance ^ 8/27/89
a/
^MxniUiHKKklKkxxttlHbMoacSMticrixxsbAx^MAclcK Payment to be made to District
Clerk, Courthouse.
(j) Support your dependants, if any;
Pay a Supervisory fee in the amount of S / v per
month starting 30 days from this date, to Brooks County Pdult
Probation Department, during the term of his probation;
The Clerk of this Court is directed to furnish Defendant
herein a certified copy of this order as a written statement of
the period and terms of his probation, and to take Defendant's
»^ceipt therefore, and upon the successful completion of
Defendant's probation, the defendant shall be discharged and the
proceeding against him shall be dismissed, except that upon
TOnvictiOh of a subsequent offense, the fact that the defendant
had previously received probation shall be admissable before the
Court or jury to be considered on the issue of penalty.
SIONEO AND ENTERED this day February
19
89
D"'eh.dant acknowledges receipt D1STRICT JUP!^
copy of the above
BROOKS COUNTY, TEXPS
pI^uJju M cidiMA'
(o)/ittiiuL OUouU
eoi5
NO. 2179
THE STATE OF TEXAS
][ IN THE DISTRICT COURT
VS.
]I OF BROOKS COUNTY, TEXAS
JUAN GABRIEL CISNEROS
][ 79TH JUDICIAL DISTRICT
ORDER DISCHARGING DEFENDANT FROM DEFERRED ADJUDICATION PROBATION
THIS DAY, came to be heard the matter of determining whether
the judgmenL of conviction and placing the defendant on deferred
adjudication probation heretofore entered in this cause should be
set aside and the Defendant discharged from deferred adjudication
probation, and the Court after hearing the evidence submitted and
It appearing from said evidence that the defendant was indicted in
this cause for the felony offense of Possession of Marihuana
and the 27th day of February. 19 89 . was convicted
therefore, and that the imposition of sentence was suspended and
the Defendant placed on Deferred Adjudication probation for a
period of two (2) ^ years and it further appearing to the
satisfaction fulfilled, it is accordingly considered, ORDERED AND
... cour. .... ...
probation be ter^lbatad and Defendant be diacharged from said
deferred Adjudication probation.
SIGNED AND ENTERED this
day of
19
TERRY A. &ASALES
DISTRICT JUDGE
79th judicial DISTRICT
BROOKS COUNTY, TE
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THE STATE OF TEXAS
CRiiVilMAL OOCfCET
VS. No.
DATE OF QRipERS MINUTE BOOK
ORDERS OF THE COURT—continued
DAY YCAR
Jill. ni ^
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UNSWORN DECLARATION
6 H I*
1. Juan Gabriel Cisneros, 40178-079, being presently
incarcerated in FCG Beaumont-Medium, Beaumont, Texas, Jefferson
County, declare under penalty of perjury, that ^ jq: 0g
stated below are true and correct.
NQFBJESflAflJR,
1. On July 2000, I mailed my Application fjjUjrTj"A.
Corpus (AWHC). I did not receive any acknowledgeme^C from he
District Clerk, Noe Guerra, Jr.' Subsequently myi/^iloAnl"" not
Cisneros inquired with the Clerk and had been advisee
been received.
2. On July 2001, I mailed my second AWHC.to the District
Clerk. I was later informed by my mother that she had been
informed it had been received and would be presented to the
court. After several months had past my mother again inquired
with the District Clerk and then advised it had not been
received.and instructed for me to sent another.
3. On July 1, 2002, 1 mailed my third AWHC to the District
Clerk. I was later informed by my mother that she had been
informed by the District Clerk that I had filed it in the wrong
court. By letter ;dated November 3, 2002, I wrote the District
Clerk explaining that the AWHC was properly filed in Brooks
County. See Exhibit A. I hev6r'received a response.
4. Oh December 17, 2002, I filed a Petition for Writ of
Mandamus in Brooks County, explaining that I would file a
Writ of Mandamus in the Texas Court of Criminal Appeals if it
was not processed in accordance to 11.07 et seq. When I
received no response, I then on March 11, 2003, filed a Writ
of Mandamus. On April 2, 2003, the Texas Court of Criminal
Appeals ordered the District Clerk to respond. On May 16, 2003,
the District Clerk responded by stating no AWHC had been filed
and therefore no action could be taken.
5. On January 22, 2004, I mailed my fourth AWHC, via
certified return receipt requested No. 70011140000074078761.
See Exhibits B and C. I was later informed by my mother that
she had been informed by the District Clerk would be processed
and then again later told that it had not been received.
6. On February 2004, Attorney Jefferey Kearney was retained
to investigate this and other legal matters. Mr. Kearney took
no action for several years which resulted in a complaint being
filed with the State Bar.on November 2007. According to Mr.
Kearney rriy AWHC had been "denied without a written order on
August 18, 1999. Ha made this response on April 25, 2008.
0012
7. On June 2, 2008, I had ihy family go to Brooks County
and hand delivered to the District Clerk for filing my fifth;
AWHG, On July 2, my mother was informed that the court was in
the process of filing its report in the Texas Court of Criminal
Appeals. On July 11, she was then informed that it had not
been properly filed because 1 had used an old form, and a new
form had beenLseht to'mejforlBaviag it oampleted. On July 18,
she was then informed that the new forms had been returned tp
the District Clerk for insufficient postage. Finally on July 28,
I ireceiyed the new forms and returned them for filing along a
pppy of this unsworn declaration explaining the 8 year odysspy
1 took in having it filed and processed.
Date: August 1, 2008 CMjAi' '.sneros
n Gabriel Cisner<
Juan
r> o 1
V. v,j 1 o
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Cause Number:
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88-02-02179-CR
Case
Court: Filing Date:
Defendant 79th District Court 02/11/1988
Plaintiff Criminal Offenses Disposition Date Disposition Type
1. REOPEN
Other
Party 2. REOPEN 07/26/2011 OTHER DISPOSITION
Other 3. REOPEN 10/01/1990 DISMISSAL; OTHER DISMISSALS
Primary
4. REOPEN 11/06/1989 DISMISSAL; OTHER DISMISSALS
Party
5. POSS MARIJ
Attorney 02/27/1989 DEFERRED ADJUDICATION
>50LBS<=:2,OOOLBS
Bond Style: Offense Date;
State of Texas vs JUAN GABRIEL CISNEROS 01/15/1988
Cash Bond
Offense
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Summary
Report # Type Date Description Image Pages
Location L INDICTMENT 02/11/1988 INDICTMENT 333013.tif 1
History 2. BAIL BOND 02/11/1988 BAIL BOND-$5000.00 3330l4.tif 2
3, LETTER 02/11/19:88 LETTER FROM DAVID T. GARCIA, CTY ATTY 3330i5.tjf 1
4. MOTION 02/12/1988 MOTION FOR SUMMARY FORFEITURE & DESTRUCTION 333019.tif 2
ORDER 02/19/1988 ORDER FOR SUMMARY FORFEITURE & DESTRUCTION 333021.1:if 3
MOTION 02/25/1988 1ST AMENDED MOTION FOR SUMMARY FORFEITURE & DESTRUCTION 333023.tif 2
WAIVER OF
L' 02/26/1988 WAIVER OF ARRAIGNMENT 3330l6.tif 1
ARRAIGNMENT
ORDER 03/01/1988 1ST AMENDED ORDER FOR SUMMARY FORFEITURE & DESTRUCTIOI^ 333024.tif 3
% LETTER 03/04/1988 LETTER FROM CTY ATTY DAVID T. GARCIA 333018.tif 1
10. SUBPOENA RETURN 08/20/1988 SUBPOENA RETURN 333029.Hf 2
11^ SUBPOENA RETURN 08/24/1988 SUBPOENA RETURN 333D31.Hf 4
12. LETTER 08/24/1988 LETTER FROM CTY ATTY 333033.tif 1
13. SUBPOENA ISSUED TO 09/12/1988 SUBPOENA ISSUED 333027.tif 2
14. LETTER 11/10/1988 LETTER FROM CTY ATTY 333035.tif 1
15. SUBPOENA RETURN 11/15/1988 SUBPOENA RETURN 333037.tif 4
16, SUBPOENA ISSUED TO 11/28/1988 SUBPOENA.ISSUED 333034.tif 2
17. OBJECTION 11/28/1988 OBJECTION TO ASSIGNED JUDGE 333038.tif 3
IL. PRETRIAL 11/28/1988 PRETRIAL ORDER 333039.t!f 1
JUDGMENT NISI &
01/23/1989 JUDGMENT NISI 33304n.rif 2
CAPIAS INSTANTE.R
2L PLEA MEMO 02/27/1989 PLEA MEMO 333043.tif. 4
MOTION TO REDUCE
21. 02/27/1989 MOTION/ORDER TO REDUCE CHARGE 333D46.tif 1
CHARGE
DEFERRED
22, 02/27/1989 DEFERRED ADJUDICATION- 2YRS 333047.tif 2
ADJUDICATION
ARREST
a. 02/27/1989 ARREST REPORT/OFFENSE 333051.tif 5
REPORT/OFFENSE
24, MOTION 03/31/1989 MOTION/ORDER FOR SUMMARY FORFETTURE & DESTRUCTION 333049.tif 5
2^ ORDER 03/31/1989 ORDER FOR SUMMARY FORFEITURE & DESTRUCTION 333060.tif 3
STATES MOTION FOR
ADJUDICATION OF -
26. 05/03/1989 STATES MOTION FOR ADJUDICATION OF GUILT 333a48.tif 7
GUILT
ORDER SETTING
27. 05/03/1989 ORDER SETTING HEARING/ORDERING ARREST 333052.tif 1
HEARING
2iL CAPIAS 05/04/1989 CAPIAS 333055.tif 6
.29. CAPIAS RETURNED 05/09/1989 CAPIAS RETURN 333054.tif 2
30. NOTICE . 08/24/1989 NOTICE 333056.tif 1
31. BAIL BOND 08/25/1989 BAIL BOND 333057.tif 2
32. NOTICE 09/13/1989 NOTICE 333059.tif 2
31. NOTICE 10/30/1989 NOTICE 333064.tif 1
DISMISSAL-STATES
34. 11/06/1989 DISMISSAL-STATES MOTION TO REVOKE 333062.tif 1
MOTION TO REVOKE
35. MOTION 02/07/1990 MOTION FOR DISCHARGE FROM PROBATION AND DISMISSAL OF CAUSE 333041.tif 5
STATES MOTION FOR
36. ADJUDICATION OF 06/25/1990 STATES MOTION.FOR ADJUDICATION OF GUILT 333066.tif 2
GUILT
ORDER SETTING
37. 06/25/1990 ORDER SETTING HEARING/ordering arrest 333Q67.tif 1
HEARING
DISMISSAL-STATES
MOTION FOR
10/01/1990 DISMISSAL-STATES MOTION FOR ADJUDICATION Of GUILT 333069.tif 1
ADJUDICATION OF-
GUILf
ORDER DISCHARGING
DEFENDANT FROM
DEFERRED
39. 04/29/1991 ORDER DISCHARGING DEFENDANT FROM DEFERRED ADJUDICATION 333a7Q.tif 1
ADJUDICATION
COMMUNITY
SUPERVISION
40. LETTER 04/20/1998 LETTER from def ?330fBTif 2
APPUCATION FOR A WRIT OF HABEAS CORPUS SEEKING REUEF FROM
41. APPUCATION 08/06/2008 FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, 35S455.tif 36
ARTICLE 11.07
APPQCATION FOR
WRIT OF-HABEAS
42. 06/14/2010 APPLICATION FOR WRlt OF HABEAS CORPUS 333073.tif 14
CORPUS AD
PROSEQUENDUM
43. NOTICE OF SETTING 10/29/2010 NOTICE OF SETTING 1/3/11 9AM 340550.ttf 1
REQUEST FOR
44. 10/29/2010 REQUEST FOR HEARING 34055l.tif 1
HEARING
45. Remarks 11/01/2010 Remarks- REQUEST FOR COPIES (entire file) mailed on 11-01-10 340581.tif 1
NOTICE RETURNED
UNCLAIMED-NOT
DELIVERABLE AS
46. 11/12/2010 NOTICE RETURNED UNCLAIMED-NOT DELIVERABLE AS ADDRESSED 341188.tif 1
ADDRESSED/NO SUCH
NUMBER/INSUFFICIENT
ADDRESS
Remarks REQUEST FOR COPIES MR. WATTIEZ CAME IN PERSON ON 12-
47. Remark's 12/13/2010 342502.tif 1
8-10 TO PICK UP COPIES OF WHAT HE NEEDED
MOTION FOR
48. 12/15/2010 MOTION FOR CONTINUANCE 34273i.tif 6
CONTINUANCE
MOTION FOR
49. 12/27/2010 MOTION FOR CONTINUANCE 34325l.tff 6
CONTINUANCE
SC ORDER 01/04/2011 ORDER GRANTING CONTINUANCE 343390.tif 1
SI. APPUCATION 02/11/2011 APPUCATION FOR ATTACHMENT OF WITNESS 3451R6.ttf 4
FAX CONFIRMATION TO ATTY AND I ALSO LET HIM KNOW THAT HE HAD
52. FAX CONFIRMATION 02/11/2011 to FAX THE CRIMINAL CASE REQUEST FORM TO JUDGE TERRELL'S
OFRCE
CASE SETTING REQUEST- DEFENDANT ATTY'S MAILED IT TO US. I
CASE SETTING
IL 02/11/2011 NOTIFIED MR. WATTIEZ HE NEEDS TO FAX IT TO JUDGE TERRELL'S 345lB9.tif 1
REQUEST
OFFICE
Remarks CRIMINAL CASE REQUEST FORM*** FAXED I TO HEATHER &
54. Remarks 03/24/2011 347l68.tif 2
FAX CONF
FIRST AMENDED APPUCATION FOR WRIT OF HABEAS CORPUS
55. AMENDED 03/24/2011 347169.tif 24
PURSUANT TO TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 11.08
56, ORDER 03/28/2011 ORDER OF REFER^L AND RECUSAL ON JUDGE'S OWN MOTION 347336.tif 1
57. ORDER 04/01/2011 ORDER OF ASSIGNMENT 3477i4.tif 1
58, NOTICE OF SETTING 04/18/2011 NOTICE OF SETTING 4/21/2011 @ 1 PM 348152.tif 3
12. BENCH WARRANT 04/26/2011 FEDERAL BENCH WARRANT 348338.tif 2
60. NOTICE OF SETTING 04/26/2011 NOTICE OF SETTING- 07-06-2011 @9A 348339.tif 1
RECEIVED FROM
61.
SHERIFF OR OTHER
04/26/2011 RECEIVED FROM SH^IFF OR OTHER 348360.tif 1
I
WRIT OF HABEAS
05/04/2011 WRIT OF HABEAS CORPUS FOR PROSECUTION 348754.tif 2
CORPUS
RECEIVED FROM
a 05/05/2011 RECEIVED FROM SHERIFF OR OTHER 348755,tif 1
SHERIFF OR OTHER
BRIEF IN SUPPORT OF DEFENDANTS RRST AMENDED APPLICATION FOR
64. BRIEF 05/23/2011 WRIT OF HEBEAS CORPUS PURSUANT TO TEXAS CODE OF CRIMINAL 349317,t!f 111
PROCEDURE, ARTICLE 11.08
LETTER FROM RUDY WATTIEZ OFFICE TO JUDGE SALDANA, MR,
LETTER 07/07/2011 351207.tif 3
BARRERA & DISTRICT'CLERK ON 7/14/11 HEARING
NOTICE OF SETTING 07/08/2011 NOTICE OF SETriNG-7/25/11 @ 10:30a 351289,tif 1
67. EXHIBITS 07/25/2011 EXHIBITS 1 & 2 FROM,PETITIONER & STATE EX #1 35l726.tif 9
ORDER 07/26/2011 ORDER DENIN.G APPLICATION FOR WRIT 351780,tif 2
69. FAX CONFIRMATION 07/26/2011 FAX CONFIRMATION tb RUDY & BCSO BAZAN 351781.tif 1
NOTICE RETURNED
UNCLAIMED-NOT
DELIVERABLE AS
ZQ. 08/03/2011 NOTICE RETURNED UNCLAIMED- RTS RELEASED 352299,tif 1
ADDRESSED/NO SUCH
NUMBER/INSUFFICIENT
ADDRESS
71. REQUEST 08/09/2011 REQUEST FOR RNDINGS OP FACT AND CONCLUSIONS OF LAW 352550.tif 4
MOTIONFOR APPLELLATE RECORD WITHOUT CHARGE PURSUANT TO
72. MOTION 08/17/2011 353072.tif 5
TRAP 20,2
73. Remarks 08/17/2011 Remarks - FINANCIAL STATEMENT 353073.tif 4
74. Transmittal Letter 08/18/2011 Transmittal Letter 353l26.tif 1
FINDINGS OF FACTS 08/29/2011 FINDINGS OF FACTS 353656.tif 4
76. NOTICE 08/29/2011 NOTICE OF PAST DUE FINDINGS OF FACT AND CONCLUSIONS OF LAW 353657.tif 2 .
JUAN GABRIEL CISNERO'S REQUEST FOR ADDITIONAL AND AMENDED
77. AMENDED 09/08/2011 354071.tif 8
FINDINGS OF FACT AND CONCLUSIONS OF LAW
21. AMENDED 09/14/2011 FIRST AMENDED WRIT OF HEABEAS CORPUS VeARI^ 354281.tif 83
79. NOTICE OF SETTING ■ 09/20/2011 NOTICE OF SETTING 9/22/0 ll':30AM '' 354461.tif 3
80. AMENDED 09/26/2011 AMENDED NOTICE OF SETTING- 9/23/2011 @ 10:45AM 354S90.tif 1
MOTION FOR APPELLATE RECORD WITHOUT CHARGE PURSUANT TO
81. MOTION 10/07/2011 354836.tif 7
TRAP 20.2 FINANCIAL STATEMENT*'**** EMAILED TO SONIA****
82. NOTICE OF APPEAL 10/21/2011 NOnCE OF APPEAL : 355451.tif 1
DESIGNATION OF
83. 10/21/2011 DESIGNATION OF RECORD OF APPEAL 3554S2.tif 1
RECORD OF APPEAL
AFFIDAVIT OF
84. 10/21/2011 AFFIDAVIT OF INDIGENCY 355453.rif 2
INDIGENCY
DOCKETING
15, 10/21/2011 DOCKETING STATEMENT 355454,tif 3
STATEMENT
86. Remarks 10/25/2011 Remarks-GMRRR TO THE 4TH COURT OF APPEALS 355471-.ttf 1
POST OFFICE STAMPED
87. 10/28/2011 POST OFFICE STAMPED RECEIPT 355551.tif 1
RECEIPT
CERTIFIED MAIL RETURNED SERVED TO THE 4TH COURT OF APPEALS
M. CERTIFIED MAIL 10/31/2011 355607,tif 1
ON 10/28/11
IS. NOTICE 11/22/2011 NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS 356411,tif 1
21. CORRESPONDENCE 12/05/2011 CORRESPONDENCE FROM JUAN GABRIEL CISNEROS 356719,tif 1
Si. LETTER 12/19/2011 LETTER FROM THE COURT OF APPEALS 356994.tif 1
92. CERTIFIED MAIL 12/19/2011 CERTIFIED MAIL- 7008 1830 0002 8951 4701 357026.tif 1
93. LETTER 12/27/2011 LETTER from the 4TH COURT OF APPEALS 357275.tif 1
21. CERTIFIED MAIL 12/27/2011 CERTIFIED MAIL RETURNED & POST OFFICE RECEIPT 357277.tif 2
95. ORDER 01/03/2012 ORDER FROM THE 4TH COURT OF APPEALS 357379.tif 2
21. LETTER 01/03/2012 LETTER FROM JUAN GABRIEL CISNEROS 357380.tif 1
92. LETTER 01/03/2012 LETTER MAILED TO JUAN 357386.tif 1
TRIAL COURT
CERTIFICATION OF
98, 01/11/2012 TRIAL COURT CERTIFICATION OF DEFENDANTS RIGHT TO APPEAL 357813.tif 2
DEFENDANTS RIGHT
TO APPEAL
Remarks- SPOKE TO LUZ FROM THE 4TH COURT OF APPEALS AND SHE
99. Remarks 01/11/2012 ADVISED ME TO DO A SUPPLEMENT ON THE TRIAL COURTS
CERTIFICATION
Remarks- MAILED TO 4TH COURT OF APPEALS- CMRRR#700B 1830 0002
100, Remarks 01/11/2012 357817.tif 1
8951 2912
191, CERTIFIED MAIL 01/19/2012- CERTIFIED MAIL SERVED TO 4TH COURT OF APPEALS ON 1/17/12 358099.tif 1
Remarks- APPLELLANT'S RESPONSE TO SHOW CAUSE ORDER ENTERED
102. Remarks 01/24/2012 358316.tif 2
ON.DECEMBER 28, 2011
103. LETTER 01/24/2012 LETTER FROM THE 4TH COURT OF APPEALS 358318.tif 1
MEMORANDUM
104. 02/13/2012 MEMORANDUM OPINION/ORDER 359039.tif 3
OPINION
Remarks- MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR
105. Remarks 02/24/2012 REHEARING.... SENT TO THE 4TH COURT OF APPEALS BY JUAN GABRIEL 359449.tif 3
CISNEROS.... COPY MAILED TO US
CORRESPONDENCE FROM JUAN MOTION FOR REHEARING.... HE MAILED
106. CORRESPONDENCE 04/10/2012 360846.tif 10
TO THE 4TH COURT OF APPEALS
107. CORRESPONDENCE 05/30/2012 CORRESPONDENCE FROM THE DEFENDANT 362373.tif 2
108. LETTER 05/31/2012 LETTER TO JUAN FROM THE DISTRICT CLERK'S OFFICE 362434.tif 1
User: Annette - Annette Johnson (admin) Brooks County, District Clerk session: 3CE36B06639CF2763A075BB062C82FD6
ik
■VE 2/
MEMORANDUM OPINION
No. 04-11-00870-CR
EX PARTE JUAN GABRIEL CISNEROS
From the 79th Judicial District Court, Brooks County, Texas
Trial Court No. 88-02-02179-CR
Honorable Marisela Saldana, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: February 8, 2012
DISMISSED FOR LACK OF JURISDICTION
The trial court denied appellant's application for writ of habeas corpus on July 25, 2011.
The notice of appeal was due to be filed August 24, 2011. Tex. R. App. P. 26.2(a)(1). A motion
for extension of time to file the notice of appeal was due on September 8, 2011. TEx. R. App. P.
26.3. Appellant filed his notice of appeal on October 21, 2011 and he did not file a motion for
extension of time. Accordingly, on December 28, 2011, this court ordered appellant to show
cause in writing why this appeal should not be dismissed for lack of jurisdiction. On January 23,
2012, appellant responded by stating a request for findings of fact were filed by his attomey on
August 9, 2011 and, following a September 23, 2011 hearing, the trial court stated it would file
findings but failed to do so.
04-11-00870-CR
The time in which to file a notice of appeal in a civil appeal may be extended by the
timely filing of a request for findings of fact and conclusions of law. See Tex. R. App. P.
26.1(a)(4). However, iii a criminal appeal, only the filing of a motion for new trial will extend a
defendant's time in which to file a notice of appeal. See Tex. R. App. P. 26.2(aX2). Therefore,
appellant's request that the trial court enter findings offact did not extend the deadline by which
he was required to file his notice of appeal.
Accordingly, we must dismiss this appeal for lack ofjurisdiction.
PER CURIAM
DO NOT PUBLISH
-2-
NO. 2179
THE STATE OF TEXAS ][ IN THE DISTRICT COURT
VS. ]I OF BROOKS COUNTY, TEXAS
JUAN GABRIEL CISNEROS ][ 79TH JUDICIAL DISTRICT
ORDER DISCHARGING DEFENDANT FROM DEFERRED ADJUDICATION PROBATION
THIS DAY, came to be heard the matter of determining whether
the judgment of conviction and placing the defendant on deferred
adjudication probation heretofore entered in this cause should be
set aside and the Defendant discharged from deferred adjudication
probation, and the Court after hearing the evidence submitted and
it appearing from said evidence that the defendant was indicted in
this cause for the felony offense of Possession of Marihuana
and on the 27th day of February, 19 89 , was convicted
therefore, and that the imposition of sentence was suspended and
the Defendant placed on Deferred Adjudication probation for a
period of two (2) years and it further appearing to the
satisfaction fulfilled, it is accordingly considered, ORDERED AND
ADJUDGED by the Court that the Defeindant's deferred adjudication
probation be^Jterminated and Defendant be discharged from said
deferred Adjudicatibrt probation.
tT
SIGNED AND ENTERED this day of 19
TERRY A. SAIJALES
DISTRICT JUDGE
79TH JUDICIAL DISTRICT
BROOKS COUNTY r TEXA^, /
9i9&r
Pate Mai
mmoJ/s Cp., r
(t
Reg No, 4U I (O-u/ a
. United Stales Penitentiary
P.O.Box 3900
Adelanto, CA.92301
United States
afe>
■ -. vV-
■I
^3
i
<^40178-079«
Clerk Of Fourth Court Appeal
300 Dolorosa I
Suite 3200
SAN Antonio, TX 78205
United States
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