Ex Parte: Jesus Aguilar ( 2018 )

ACCEPTED
08-18-00064-CR
08-18-00064-CR EIGHTH COURT OF APPEALS
EL PASO, TEXAS
5/29/2018 4:01 PM
DENISE PACHECO
CLERK
NO. 08-18-00064-CR
IN THE FILED IN
8th COURT OF APPEALS
COURT OF APPEALS EL PASO, TEXAS
EIGHTH DISTRICT OF TEXAS 5/29/2018 4:01:16 PM
DENISE PACHECO
Clerk
EX PARTE JESUS AGUILAR APPELLEE
THE STATE’S BRIEF
ON APPEAL FROM CAUSE NUMBER 970D04229-243-2
IN THE 243RD DISTRICT COURT OF EL PASO COUNTY, TEXAS
JAIME ESPARZA
DISTRICT ATTORNEY
34th JUDICIAL DISTRICT
RONALD BANERJI
ASST. DISTRICT ATTORNEY
DISTRICT ATTORNEY’S OFFICE
EL PASO COUNTY COURTHOUSE
500 E. SAN ANTONIO
EL PASO, TEXAS 79901
(915) 546-2059 ext. 3312
FAX (915) 533-5520
E-MAIL: rbanerji@epcounty.com
SBN 24076257
ATTORNEYS FOR THE STATE
The State does not request oral argument.
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: The State of Texas, 34th Judicial District Attorney’s Office,
represented in the writ-of-habeas-corpus hearing by:
Jaime Esparza, District Attorney
Ronald Banerji, Assistant District Attorney
500 E. San Antonio, Suite 201
El Paso, Texas 79901
(915) 546-2059
and on appeal by:
Jaime Esparza, District Attorney
Ronald Banerji, Assistant District Attorney
500 E. San Antonio, Suite 201
El Paso, Texas 79901
(915) 546-2059
APPELLEE: Jesus Aguilar, represented in the writ-of-habeas-corpus hearing and
on appeal by:
Matthew DeKoatz
718 Myrtle Ave.
El Paso, Texas 79901-2542
(915) 626-8833
TRIAL COURT: 243rd District Court, Judge Luis Aguilar, presiding
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .........................................................ii
INDEX OF AUTHORITIES ...........................................................................v-viii
STATEMENT OF THE CASE..........................................................................ix-x
POINTS OF ERROR PRESENTED.....................................................................xi
STATEMENT OF FACTS.................................................................................1-3
SUMMARY OF THE STATE’S ARGUMENTS ................................................4-6
STATE’S POINTS OF ERROR PRESENTED FOR REVIEW: ......................7-42
Point of Error One: Because Aguilar failed to overcome the subsequent-
writ bar, the habeas court abused its discretion in granting Aguilar habeas-
corpus relief....................................................................................................7-10
Point of Error Two: Aguilar’s habeas claim that Texas’ deferred-
adjudication community-supervision statute violates due process and is
unconstitutional is not cognizable, as this claim could have been raised in a
direct appeal, such that he is foreclosed from bringing his claim by
application for writ of habeas corpus, and thus, the habeas court abused its
discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis..............................................................................................................11-12
Point of Error Three: Aguilar failed his burden of proving his habeas
claim that Texas’ deferred-adjudication community-supervision statute is
unconstitutional, and thus, the habeas court abused its discretion to the extent
that it granted Aguilar habeas-corpus relief on this basis. ............................13-17
iii
Point of Error Four: Aguilar failed his burden of proving his claim that
his trial counsel rendered ineffective assistance of counsel by allegedly not
informing him that deferred-adjudication community-supervision status was
considered a conviction under Federal law and that this alleged conviction
would have an enhancing effect on any potential Federal criminal sentences
because trial counsel was not required to advise him of such collateral
consequences of his guilty plea, and thus, the habeas court abused its
discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis..............................................................................................................18-31
Point of Error Five: Aguilar failed his burden of proving his habeas
claim that his trial counsel rendered ineffective assistance of counsel by
allegedly failing to adequately inform him of the immigration consequences of
his guilty plea because trial counsel was not required to advise him of such
collateral consequences at the time of his plea, and thus, the habeas court
abused its discretion to the extent that it granted Aguilar habeas-corpus relief
on this basis..................................................................................................32-42
PRAYER............................................................................................................43
SIGNATURES...................................................................................................43
CERTIFICATE OF COMPLIANCE....................................................................44
CERTIFICATE OF SERVICE ............................................................................44
iv
INDEX OF AUTHORITIES
FEDERAL CASES
Chaidez v. United States, 568 U.S. 342, 133 S. Ct. 1103,
185 L. Ed. 2d 149 (2013)....................................................................................33
Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366,
88 L. Ed. 2d 203 (1985)........................................................................21, 28, 38-39
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,
176 L. Ed. 2d 284 (2010)................................................................22, 28, 33, 35, 38
Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029,
145 L. Ed. 2d 985 (2000) ................................................................................28, 38
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)........................................................................20-22, 28, 39
STATE CASES
Candelas v. State, 91 S.W.3d 810 (Tex.App.–El Paso 2002, no pet.) ....................17
Coleman v. State, 632 S.W.2d 616 (Tex.Crim.App. 1982).....................................16
Crawford v. State, 155 S.W.3d 612
(Tex.App.–San Antonio 2004, pet. ref’d).........................................................24-25
Ex parte Aguilar, No. 08-14-00204-CR, 2016 WL 921904
(Tex.App.–El Paso Mar. 9, 2016, pet. ref’d)
(not designated for publication).................................x, 2, 8, 10, 24-26, 30, 32-33, 41
Ex parte Aguilar, No. 08-12-00369-CR, 2014 WL 7234592
(Tex.App.–El Paso Dec. 19, 2014, no pet.)
(not designated for publication) .......................................................................19-22
Ex parte Beck, 541 S.W.3d 846 (Tex.Crim.App. 2017)..........................................12
v
Ex parte Brown, 158 S.W.3d 449 (Tex.Crim.App. 2005).......................................19
Ex parte Cisneros, No. 08-11-00180-CR, 2013 WL 1281995
(Tex.App.–El Paso Mar. 28, 2013, no pet.)
(not designated for publication)........................................................................34-35
Ex parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013)..................34-35, 39
Ex parte Drinkard, No. 02-11-00369-CR, 2012 WL 3207428,
(Tex.App.–Fort Worth Aug. 9, 2012, no pet.)
(mem.op., not designated for publication) .............................................................25
Ex parte Harrington, 310 S.W.3d 452 (Tex.Crim.App. 2010)..........................20, 38
Ex parte Morrow, 952 S.W.2d 530 (Tex.Crim.App. 1997).....................................24
Ex parte Murillo, 389 S.W.3d 922
(Tex.App.–Houston [14th Dist.] 2013, no pet.) ...............................28-29, 31, 39, 42
Ex parte Nelson, 137 S.W.3d 666, (Tex.Crim.App. 2004) .....................................12
Ex parte Nieves, No. 08-11-00189-CR, 2013 WL 3943288
(Tex.App.–El Paso July 24, 2013, no pet.)
(not designated for publication) .......................................................................34-35
Ex parte Okere, 56 S.W.3d 846 (Tex.App.–Fort Worth 2001, pet. ref’d) ..........26, 37
Ex parte Salazar, 510 S.W.3d 619 (Tex.App.–El Paso 2016, pet. ref’d)................7-9
Ex parte Sanders, No. 08-05-00074-CR, 2006 WL 3754790
(Tex.App.–El Paso Dec. 14, 2006, pet. ref’d)(not designated for publication) ..........12
Ex parte Torres, 483 S.W.3d 35 (Tex.Crim.App. 2016)...................28, 31, 38-39, 42
Ex parte Torres, No. 08-10-00330-CR, 2012 WL 1431660
(Tex.App.–El Paso April 25, 2012, no pet.)(not designated for publication) .............19
vi
Ex parte Wheeler, 203 S.W.3d 317 (Tex.Crim.App. 2006) ....................................19
Ex parte Wong, No. 08-08-00003-CR, 2009 WL 3111827
(Tex.App.–El Paso, Sept. 30, 2009, no pet.)
(not designated for publication).......................................................................26, 37
Ex parte Young, No. 08-04-00250-CR, 2008 WL 2967008
(Tex.App.–El Paso July 31, 2008, pet. ref’d)
(not designated for publication).......................................................................10, 32
Garcia v. State, 57 S.W.3d 436, (Tex.Crim.App. 2001).........................................22
Gillenwaters v. State, 205 S.W.3d 534 (Tex.Crim.App. 2006)...............................14
Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App. 2005)............................22, 36
Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997)...................................19-20
Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986)....................................20
Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App. 1998)..................................20-21
Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App. 1994).......................................21
Karenev v. State, 281 S.W.3d 428 (Tex.Crim.App. 2009)......................................14
Kniatt v. State, 206 S.W.3d. 657 (Tex.Crim.App. 2006)........................................19
McFarland v. State, 845 S.W.2d 824 (Tex.Crim.App. 1992) .................................21
McNew v. State, 608 S.W.2d 166 (Tex.Crim.App. 1978).......................................16
Merchant v. State, No. 08-00-00183-CR, 2001 WL 842087
(Tex.App.–El Paso July 26, 2001, no pet.)(not designated for publication)...............16
Perez v. State, 310 S.W.3d 890 (Tex.Crim.App. 2010)..........................................21
vii
Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App. 2003) ..........................27, 36-37
Salinas v. State, 464 S.W.3d 363 (Tex.Crim.App. 2015).......................................14
Sandoval v. State, Nos. 14-01-00049-CR, 14-01-00050-CR, 14-01-00051-CR,
2002 WL 533711 (Tex.App.–Houston [14th Dist.] Apr. 11, 2002, pet. ref’d)
(not designated for publication)............................................................................36
Santikos v. State, 836 S.W.2d 631 (Tex.Crim.App. 1992)(op. on reh’g),
cert. denied, 506 U.S. 999, 113 S. Ct. 600, 121 L. Ed. 2d 537 (1992) ......................14
Singhal v. State, No. 2-06-221-CR, 2007 WL 866526 (Tex.App.–Fort Worth Mar.
22, 2007, pet. ref’d)(mem.op., not designated for publication) ..............................16
State v. Guerrero, 400 S.W.3d 576 (Tex.Crim.App. 2013)................................34-35
State v. Jimenez, 987 S.W.2d 886 (Tex.Crim.App. 1999)......................................25
Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999)............................21-23, 35
STATE STATUTES
T EX. CRIM. P ROC. CODE Art. 11.072..................................................................7-8
T EX. CRIM. P ROC. CODE Art. 42A, subchapter C..................................................16
T EX. CRIM. P ROC. CODE Art. 42.12..........................................................16, 31, 41
T EX. CRIM. P ROC. CODE Art. 44.02 (1999)..........................................................11
T EX. P ENAL CODE § 12.35........................................................................30-31, 41
T EX. P EN. CODE §12.44 ......................................................................................ix
RULES
T EX. R. APP . P. 25.2 ..........................................................................................11
viii
STATEMENT OF THE CASE
Appellee, Jesus Aguilar, was indicted for the state-jail-felony offense of
possession of a controlled substance in penalty group 1, to wit: cocaine, weighing
less than 1 gram, alleged to have occurred on or about May 3, 1997. (CR: 7).1 On
January 15, 1999, pursuant to a plea agreement, the charge was reduced to a
class-A misdemeanor, see T EX. P EN. CODE §12.44(b), and Aguilar pleaded guilty.
(CR: 26-33). In accordance with the plea agreement, the trial court deferred entry
of a judgment of conviction and placed Aguilar on two-years’ community
supervision. (CR: 39-40). Aguilar did not appeal. On February 25, 2000, the trial
court granted Aguilar’s request for early termination of his community
supervision. (CR: 53).
On May 28, 2014, Aguilar filed his initial application for writ of habeas
corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure,
alleging that his trial counsel rendered ineffective assistance by failing to inform
him that his guilty plea would result in his deportation and failing to pursue a
motion to suppress the cocaine that formed the basis for his guilty plea. (CR: 54-
1
Throughout this brief, references to the record will be made as follows: references to the
clerk’s record will be made as “CR” and page number, references to the reporter’s record will be
made as “RR” and page number, and references to exhibits will be made as either “SX” or “PE”
(petitioner’s exhibit) and exhibit number.
ix
65).
At the conclusion of an evidentiary hearing on July 1, 2014, the habeas
court granted Aguilar’s writ application, vacated his “conviction,” and ordered the
case set for a new trial. (CR: 125). The habeas court also set a hearing date for a
motion to suppress evidence. (CR: 10). The State timely appealed, and this Court
reversed the habeas court and rendered judgment denying Aguilar’s application for
writ of habeas corpus. See Ex parte Aguilar, No. 08-14-00204-CR, 2016 WL
921904, at *6 (Tex.App.–El Paso Mar. 9, 2016, pet. ref’d)(not designated for
publication).
On October 30, 2017, Aguilar filed a subsequent application for writ of
habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure,
alleging, in part, that Texas’ deferred-adjudication community-supervision statute
is unconstitutional. (CR: 145-60). The State timely filed its answer on November
21, 2017. (CR: 165-200). Holding a hearing on March 22, 2018, the habeas court
orally granted Aguilar’s writ application, signed an order granting relief on March
28, 2018, and filed the order on March 29, 2018. (CR: 201). The State timely filed
its notice of appeal on April 17, 2018. (CR: 205-6).
x
STATE’S POINTS OF ERROR PRESENTED FOR REVIEW
Point of Error One:
Because Aguilar failed to overcome the subsequent-writ bar, the habeas court
abused its discretion in granting Aguilar habeas-corpus relief.
Point of Error Two:
Aguilar’s habeas claim that Texas’ deferred-adjudication community-
supervision statute violates due process and is unconstitutional is not
cognizable, as this claim could have been raised in a direct appeal, such that
he is foreclosed from bringing his claim by application for writ of habeas
corpus, and thus, the habeas court abused its discretion to the extent that it
granted Aguilar habeas-corpus relief on this basis.
Point of Error Three:
Aguilar failed his burden of proving his habeas claim that Texas’ deferred-
adjudication community-supervision statute is unconstitutional, and thus, the
habeas court abused its discretion to the extent that it granted Aguilar
habeas-corpus relief on this basis.
Point of Error Four:
Aguilar failed his burden of proving his claim that his trial counsel rendered
ineffective assistance of counsel by allegedly not informing him that deferred-
adjudication community-supervision status was considered a conviction
under Federal law and that this alleged conviction would have an enhancing
effect on any potential Federal criminal sentences because trial counsel was
not required to advise him of such collateral consequences of his guilty plea,
and thus, the habeas court abused its discretion to the extent that it granted
Aguilar habeas-corpus relief on this basis.
Point of Error Five:
Aguilar failed his burden of proving his habeas claim that his trial counsel
rendered ineffective assistance of counsel by allegedly failing to adequately
inform him of the immigration consequences of his guilty plea because trial
counsel was not required to advise him of such collateral consequences at the
time of his plea, and thus, the habeas court abused its discretion to the extent
that it granted Aguilar habeas-corpus relief on this basis.
xi
STATEMENT OF FACTS
The arrest
On May 3, 1997, at approximately 12:40 p.m., Officer José Rodriguez of the
Anthony Police Department was on patrol when he observed two persons (Ricardo
Marmolejo and Aguilar) sitting at a park bench. (CR: 34-36). Ofc. Rodriguez
observed Marmolejo pick up an item from the table and bend down so that Ofc.
Rodriguez could not see him place the item in his right-front pants pocket. Id. Due
to the suspicious behavior, Ofc. Rodriguez stopped his patrol unit and approached
the two individuals. Id. As he did, he detected a strong odor of marijuana
emanating from both individuals. Id. When Ofc. Rodriguez asked Marmolejo if he
had any narcotics, Marmolejo admitted that he had some marijuana in the front
pocket of his pants. Id. Ofc. Rodriguez then asked Aguilar for identification, and
Aguilar pulled out his wallet. Id. As Aguilar did so, Ofc. Rodriguez observed a
small diamond-folded piece of white paper fall out of Aguilar’s rear pants pocket.
Id. Ofc. Rodriguez picked up the piece of paper and found that it contained
cocaine. Id. Aguilar was placed under arrest for possession of cocaine. Id.
The initial writ hearing
The habeas court held a hearing on Aguilar’s initial writ application on July
1, 2014, and at the conclusion of the writ hearing, the habeas court granted
1
Aguilar’s request for habeas-corpus relief, vacated Aguilar’s “conviction,” and
directed the case be set for a new trial. (CR: 125).
The State’s first appeal
The State timely appealed and this Court reversed the habeas court and
rendered judgment denying Aguilar’s application for writ of habeas corpus. See Ex
parte Aguilar, 2016 WL 921904, at *6.
The subsequent writ hearing
The habeas court held a hearing on Aguilar’s subsequent writ application on
March 22, 2018. (RR: 1). Aguilar testified on his own behalf that he was 42-years
old, married for 20 years, and had two children. (RR: 8-9). Aguilar further testified
about his immigration case – that he had been ordered deported but was appealing
that decision and was out on an immigration bond. (RR: 9). Aguilar further
testified that he understood Texas’ deferred-adjudication statute to mean that he
did not have a conviction because he had successfully completed his term of
deferred-adjudication community supervision. (RR: 9-11). Aguilar also testified
that he understood that the Federal courts, both district and immigration,
considered his deferred-adjudication guilty plea a conviction and that had he
known this, he would not have pleaded guilty. (RR: 11). Upon cross-examination,
Aguilar admitted that he was not facing any Federal criminal charges and that the
2
information to which he testified in this subsequent writ hearing was the same
information he had already provided at his initial habeas hearing in 2014. (RR:
12). No other witnesses testified at the habeas hearing.
During closing argument, the State relied on the arguments it made in its
filed answer, see (CR: 165-200), and argued that Aguilar should be denied relief
because his subsequent writ application did not overcome the subsequent-writ bar.
(RR: 13). Specifically, the State argued that Aguilar failed to set forth a new legal
basis that did not previously exist at the time of his initial writ application and also
failed to set forth a new factual basis that he could not have ascertained through
the exercise of reasonable diligence at the time of his initial application. Id.
Aguilar, in turn, argued that his attack on the constitutionality of Texas’ deferred-
adjudication statute was a new rule of law, such that he was entitled to relief. Id.
At the conclusion of the writ hearing, the habeas court granted Aguilar habeas-
corpus relief. Id.
3
SUMMARY OF THE STATE’S ARGUMENTS
Summary of the State’s first point of error: Aguilar’s claims in his subsequent
habeas-corpus application are procedurally barred because he failed to present
these claims in his initial application for writ of habeas corpus. Specifically, both
the factual and legal bases for Aguilar’s claims were available and able to be
reasonably formulated at the time of his initial application, such that he is now
barred from presenting them. As such, the habeas court abused its discretion to the
extent that it granted Aguilar habeas-corpus relief on this basis.
Summary of the State’s second point of error: Aguilar’s habeas claim that
Texas’ deferred-adjudication community-supervision statute violates due process
and is unconstitutional is not cognizable in a writ of habeas corpus, as this claim
could have been raised in a direct appeal. As such, Aguilar is foreclosed from
bringing this claim by application for writ of habeas corpus, and the habeas court
abused its discretion to the extent that it granted Aguilar habeas-corpus relief on
this basis.
Summary of the State’s third point of error: Aguilar failed to prove his habeas
claim that Texas’ deferred-adjudication community-supervision statute is
unconstitutional, as appellate courts have routinely and consistently upheld the
constitutionality of the deferred-adjudication community-supervision statute.
4
Furthermore, under the duel-sovereignty doctrine, the Federal government, as a
separate sovereign, is free to seek redress for infractions of its own laws and can
treat Aguilar’s state deferred-adjudication guilty plea as a conviction for Federal
criminal-law purposes. As such, the habeas court abused its discretion to the
extent that it granted Aguilar habeas-corpus relief on this basis.
Summary of the State’s fourth point of error: Aguilar failed his burden of
proving his claim that his trial counsel rendered ineffective assistance of counsel
by allegedly not informing him that his deferred-adjudication
community-supervision status was considered a conviction under Federal law and
that this alleged conviction would have an enhancing effect on any potential
Federal criminal sentences because these were collateral consequences of his
guilty plea of which trial counsel had no duty to advise, such that trial counsel’s
performance was not deficient. Furthermore, Aguilar failed his burden of proving
that he was prejudiced by trial counsel’s alleged failure to advise because his
decision to reject the plea offer would not have been rational under the
circumstances. As such, the habeas court abused its discretion to the extent that it
granted Aguilar habeas-corpus relief on this basis.
Summary of the State’s fifth point of error: Aguilar failed his burden of proving
his claim that his trial counsel rendered ineffective assistance of counsel by
5
allegedly failing to adequately inform him of the immigration consequences of his
guilty plea because at the time he pleaded guilty, trial counsel had no duty to
advise him of the immigration consequences, such that trial counsel’s performance
was not deficient. Furthermore, Aguilar failed his burden of proving that he was
prejudiced by trial counsel’s alleged failure to advise because his decision to reject
the plea offer would not have been rational under the circumstances. As such, the
habeas court abused its discretion to the extent that it granted Aguilar
habeas-corpus relief on this basis.
6
STATE’S POINTS OF ERROR PRESENTED FOR REVIEW
POINT OF ERROR ONE: Because Aguilar failed to overcome the
subsequent-writ bar, the habeas court abused its discretion in granting
Aguilar habeas-corpus relief.
UNDERLYING FACTS
The State here relies on the recitation of facts set out in the statement of
facts above.
ARGUMENT AND AUTHORITIES
I. Subsequent-article-11.072-writ-of-habeas-corpus standard
A court may not consider the merits of a subsequent article 11.072 writ of
habeas corpus (after final disposition of an initial application) unless the
application contains sufficient specific facts establishing that the current claims
and issues have not been and could not have been presented previously in an
original application because the factual or legal bases for the claims were
unavailable on the date the applicant filed the previous application. See TEX.
CRIM. P ROC. CODE Art. 11.072 § 9(a); Ex parte Salazar, 510 S.W.3d 619, 625
(Tex.App.–El Paso 2016, pet. ref’d). A legal basis of a claim is unavailable if the
legal basis was not recognized by and could not have been reasonably formulated
from a final decision of the United States Supreme Court, a court of appeals of the
United States, or a Texas appellate court on or before the date the previous
7
application was filed. T EX. CRIM. P ROC. CODE Art. 11.072 § 9(b); Ex parte
Salazar, 510 S.W.3d at 625. A factual basis of a claim is unavailable if the factual
basis was not ascertainable through the exercise of reasonable diligence on or
before the date the previous application was filed. TEX. CRIM. P ROC. CODE Art.
11.072 § 9(c); Ex parte Salazar, 510 S.W.3d at 625. The rejection of an initial
habeas-corpus application is the trigger event for the subsequent application’s
restrictions. Ex parte Salazar, 510 S.W.3d at 625.
II. Aguilar’s claims in his subsequent application are procedurally barred
because he failed to present any previously unavailable or “new”
factual or legal bases for his claims in his subsequent habeas-corpus
application.
Aguilar filed his initial writ-of-habeas-corpus application on May 28, 2014,
which was ultimately denied by this Court.2 See Ex parte Aguilar, 2016 WL
921904, at *6. Aguilar then filed his subsequent writ-of-habeas-corpus application
on October 30, 2017. (CR: 145-60). In his subsequent habeas application, Aguilar
failed to allege specific facts establishing that the current claims and issues had
not been and could not have been presented previously in his initial application
because the factual or legal bases for the claims were unavailable on the date that
he filed his initial application. See T EX. CRIM. P ROC. CODE Art. 11.072; Ex parte
2
This Court issued the mandate in Ex parte Aguilar on April 27, 2017. See (CR: 143).
8
Salazar, 510 S.W.3d at 629 (holding that this Court was barred from reviewing the
applicant’s claims on the merits under article 11.072’s abuse-of-writ provisions
with respect to ineffective-assistance-of-counsel claims, but not as to
actual-innocence claims, because the applicant could have raised his claims in the
initial habeas proceeding).
In his subsequent habeas application, Aguilar cited to article 11.072, section
9, and then simply asserted that the issue was one of first impression and, as such,
was cognizable. See (CR: 154). However, Aguilar failed to show why he did not
present his claims in his initial habeas application, as these claims could have been
reasonably formulated at that time. As such, Aguilar was barred from bringing
claims in a subsequent habeas application that he could have brought in his initial
application, even if he formulated them on a later date, and he cannot rely on
equitable principles to save his application. See Ex parte Salazar, 510 S.W.3d at
629 (explaining that Texas state courts have no authority to bypass the
abuse-of-writ provision on equitable grounds). Simply stated, Aguilar failed to
present any previously unavailable factual or legal bases for his claims. As such,
the habeas court was prohibited from considering, and granting relief on, the
merits of his claims, as he failed to present these claims in his initial habeas
proceeding. Id.
9
Furthermore, in his initial habeas application, Aguilar alleged that trial
counsel rendered ineffective assistance of counsel by failing to inform him that his
guilty plea would result in his deportation. See (CR: 148). In Ex parte Aguilar, this
Court decided this issue against him. See Ex parte Aguilar, 2016 WL 921904, at
*6. As such, Aguilar is foreclosed from relitigating this issue, as it has already
been adjudicated. See Ex parte Young, No. 08-04-00250-CR, 2008 WL 2967008,
at *2 (Tex.App.–El Paso July 31, 2008, pet. ref’d)(not designated for
publication)(under the law-of-the-case doctrine, an appellate court’s resolution of
a question of law in a previous appeal of the same case will govern the disposition
of the same issue when raised in a subsequent appeal). For these reasons alone, the
habeas court’s order granting Aguilar habeas relief and setting aside his
“conviction” should be reversed.
10
POINT OF ERROR TWO: Aguilar’s habeas claim that Texas’ deferred-
adjudication community-supervision statute violates due process and is
unconstitutional is not cognizable, as this claim could have been raised in a
direct appeal, such that he is foreclosed from bringing his claim by
application for writ of habeas corpus, and thus, the habeas court abused its
discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis.
UNDERLYING FACTS
The State here relies on the recitation of facts set out in the statement of
facts above.
ARGUMENT AND AUTHORITIES
Aguilar’s claim that Texas’ deferred-adjudication community-supervision
statute violates due process and is unconstitutional was not cognizable as this
claim could have been raised on direct appeal under article 44.02. See T EX. CRIM.
P ROC. CODE Art. 44.02 (1999).3 4
Aguilar pleaded guilty pursuant to a plea agreement on January 15, 1999,
see (CR: 26-33), and received two years’ deferred-adjudication community
supervision. See (CR: 39-40). Specifically, the plea agreement explained that
Aguilar needed to obtain permission from the trial court to appeal if the trial court
3
The 1999 version of article 44.02 states, “A defendant in any criminal action has the
right of appeal under the rules hereinafter prescribed.” TEX. CRIM . PROC. CODE Art. § 44.02
(1999).
4
Texas Rule of Appellate Procedure 25.2 gives the defendant in a criminal case the right
of appeal. See TEX. R. APP. P. 25.2(a)(2).
11
did not exceed the punishment recommendations. See (CR: 26-33). And the record
does not show that Aguilar requested permission from the trial court to appeal, nor
did he appeal, the constitutionality of the deferred-adjudication community-
supervision statute.5 As such, his writ is not cognizable, as he could have raised
these issues on direct appeal but failed to do so. See Ex parte Beck, 541 S.W.3d
846, 852 (Tex.Crim.App. 2017)(complaints that could have been raised on direct
appeal cannot be raised on post-conviction habeas review); Ex parte Nelson, 137
S.W.3d 666, 667 (Tex.Crim.App. 2004)(“It is well-settled ‘that the writ of habeas
corpus should not be used to litigate matters which should have been raised on
direct appeal.’”); see also Ex parte Sanders, No. 08-05-00074-CR, 2006 WL
3754790, at *1 (Tex.App.–El Paso Dec. 14, 2006, pet. ref’d)(not designated for
publication)(holding that when an applicant has an adequate remedy at law by
direct appeal as to the constitutionality of a statute, his habeas-constitutionality
claim is not cognizable by an application for a writ of habeas corpus). For this
reason, the habeas court’s order granting Aguilar habeas relief and setting aside
Aguilar’s “conviction” should be reversed.
5
In fact, Aguilar also failed to raise his argument regarding the constitutionality of
Texas’ deferred-adjudication community-supervision in the trial court, such that he has
forfeited his argument at every level in the proceedings.
12
POINT OF ERROR THREE: Aguilar failed his burden of proving his habeas
claim that Texas’ deferred-adjudication community-supervision statute is
unconstitutional, and thus, the habeas court abused its discretion to the extent
that it granted Aguilar habeas-corpus relief on this basis.
UNDERLYING FACTS
Aguilar argued in his subsequent habeas application that Texas’ “deferred
adjudication statutes are violative of Due Process and Due Course of Law...,” and
he directly challenged “the Texas deferred adjudication provisions of Texas law,
as further described infra, as being unconstitutional under the Texas Constitution,
Due Course of Law Clause; and as being unconstitutional under the 14th
Amendment, Due Process of Law Clause.” (CR: 146-47).
At his subsequent habeas hearing, Aguilar explained that he was “attacking
the Texas deferred adjudication statute, which I don’t believe anybody has ever
attacked before.” (RR: 4). He also argued that Texas’ deferred-adjudication statute
was a myth because Federal courts and the state of Florida considered Texas
deferred adjudications convictions. (RR: 6-7).
ARGUMENT AND AUTHORITIES
Even if Aguilar’s claim that Texas’ deferred-adjudication community-
supervision statute is unconstitutional is cognizable, which the State does not
concede, Aguilar failed his burden of proving that the statute is unconstitutional,
13
and thus, the habeas court abused its discretion to the extent that it granted Aguilar
habeas-corpus relief on this basis.
I. Constitutionality-of-a-statute standard of review
Statutes are presumed to be constitutional until it is determined otherwise.
See Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App. 2009). To prevail on a
facial challenge as to the constitutionality of a statute, a party must establish that
the statute always operates unconstitutionally in all possible circumstances. See
Salinas v. State, 464 S.W.3d 363, 367 (Tex.Crim.App. 2015). Courts are to
consider the statute only as it is written, rather than how it operates in practice. Id.
A facial challenge to a statute is the most difficult challenge to mount successfully
because the challenger must establish that no set of circumstances exists under
which the statute will be valid. See Santikos v. State, 836 S.W.2d 631, 633
(Tex.Crim.App. 1992)(op. on reh’g), cert. denied, 506 U.S. 999, 113 S. Ct. 600,
121 L. Ed. 2d 537 (1992). In contrast, a claim that a statute is unconstitutional “as
applied” asserts that the statute, although generally constitutional, operates
unconstitutionally in specific circumstances. Gillenwaters v. State, 205 S.W.3d
534, 537 n. 3 (Tex.Crim.App. 2006).
14
II. Aguilar failed his burden of proving that Texas’ deferred-adjudication
statute always operates unconstitutionally in all possible circumstances.
Because Aguilar did not specify whether Texas’ deferred-adjudication
statute was unconstitutional on its face or only as applied to him, and because he
attacked the statute globally and without reference to any evidence from his
underlying plea (in both his subsequent habeas application and at the hearing), he
appears to be making a facial challenge to the constitutionality of the statute.
However, Aguilar failed to assert, much less prove, how Texas’ deferred-
adjudication community-supervision statute is unconstitutional in all possible
circumstances. Instead, the only evidence Aguilar presented at his subsequent writ
hearing was the same evidence he presented at his initial writ hearing, with the
testimony that he would not have pleaded guilty had he known that his state
deferred-adjudication guilty plea would be considered a conviction by the Federal
courts. (RR: 11). As such, Aguilar failed his burden of proving how Texas’
deferred-adjudication community-supervision statute was unconstitutional on its
face.
Furthermore, appellate courts have repeatedly rejected challenges to the
constitutionality of Texas’ deferred-adjudication community-supervision statute.6
6
At the time of Aguilar’s deferred-adjudication plea, the deferred-adjudication statute
was embodied under article 42.12, section 5, of the Texas Code of Criminal Procedure, but
15
Instead, the appellate courts have consistently upheld the constitutionality of the
deferred-adjudication community-supervision statute in various contexts. See
Coleman v. State, 632 S.W.2d 616, 618-19 (Tex.Crim.App. 1982)(holding that the
deferred-adjudication statute is not unconstitutionally vague); McNew v. State, 608
S.W.2d 166, 176 (Tex.Crim.App. 1978)(holding that deferred adjudication is a
constitutional form of probation); Singhal v. State, No. 2-06-221-CR, 2007 WL
866526, at *2 (Tex.App.–Fort Worth Mar. 22, 2007, pet. ref’d)(mem.op., not
designated for publication)(holding that appellant’s facial challenge to the
constitutionality of Texas’ deferred-adjudication statute on the basis that it denied
appellant due process failed because he failed to prove how it was
unconstitutionally applied to him and thus his facial challenge also failed);
Merchant v. State, No. 08-00-00183-CR, 2001 WL 842087, at *4 n.18
(Tex.App.–El Paso July 26, 2001, no pet.)(not designated for
publication)(recognizing that challenges to the constitutionality of the deferred-
adjudication statute have been rejected by several courts of appeals).
Furthermore, Aguilar failed to cite any authority in his subsequent habeas
application (and the State has been unable to find any) that supported his claim
currently is embodied in chapter 42A, subchapter C, of the Texas Code of Criminal Procedure.
See TEX. CRIM . PROC. CODE Art. 42.12; TEX. CRIM . PROC. CODE Art. 42A, subchapter C.
16
that the deferred-adjudication community-supervision statute was a
misrepresentation that violates due process simply because a separate sovereign,
the Federal government, considers Aguilar’s deferred-adjudication status a drug
“conviction” under Federal law for immigration and enhancement-of-punishment
purposes. See (CR: 146-48). And, in fact, under the duel-sovereignty doctrine, the
Federal government is free to seek redress for infractions of its own laws and can
treat Aguilar’s Texas deferred-adjudication guilty plea as a conviction for Federal
criminal-law purposes if it so wishes. See Candelas v. State, 91 S.W.3d 810, 813
(Tex.App.–El Paso 2002, no pet.)(the dual-sovereignty doctrine provides that
every state has the authority to seek redress for infractions of its own laws, and
prosecution by both State and Federal authorities for the same conduct does not
violate the Federal Due Process Clause). As such, the Federal government can
view Texas’ deferred-adjudication statute as a “conviction” for Federal criminal-
law purposes, and the only way for Aguilar to seek redress as to this
characterization would be in Federal court. Aguilar thus failed to demonstrate that
Texas’ deferred-adjudication community-supervision statute was unconstitutional
on its face and as applied to him. For these reasons, the habeas court’s order
granting Aguilar habeas relief and setting aside Aguilar’s “conviction” should be
reversed.
17
POINT OF ERROR FOUR: Aguilar failed his burden of proving his claim
that his trial counsel rendered ineffective assistance of counsel by allegedly
not informing him that deferred-adjudication community-supervision status
was considered a conviction under Federal law and that this alleged
conviction would have an enhancing effect on any potential Federal criminal
sentences because trial counsel was not required to advise him of such
collateral consequences of his guilty plea, and thus, the habeas court abused
its discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis.
UNDERLYING FACTS
The State here relies on the recitation of facts set out in the statement of
facts above.
ARGUMENT AND AUTHORITIES
In his subsequent habeas application, Aguilar asserted that his
deferred-adjudication community-supervision status is considered a felony
conviction under Federal law and that this was a direct consequence of his
deferred-adjudication guilty plea. See (CR: 146). He further asserted that he is
facing enhanced punishment for any potential Federal crimes he could be
convicted of and that had he been informed of these consequences, he would not
have pleaded guilty. See (CR: 148). Aguilar’s claims failed because these were
collateral consequences of pleading guilty that trial counsel had no duty of which
to advise, and thus, trial counsel was not deficient in his performance for allegedly
failing to so advise, nor was Aguilar prejudiced as a result.
18
I. Standards of review
A. Writ-of-habeas-corpus standard
A habeas court’s decision to grant habeas relief is reviewed for an abuse of
discretion. See Ex parte Wheeler, 203 S.W.3d 317, 323-24 (Tex.Crim.App. 2006);
Ex parte Aguilar, No. 08-12-00369-CR, 2014 WL 7234592, at *4 (Tex.App.–El
Paso Dec. 19, 2014, no pet.)(not designated for publication). A writ applicant
seeking post-conviction habeas-corpus relief on the basis of an involuntary guilty
plea must prove his claim by a preponderance of the evidence. See Kniatt v. State,
206 S.W.3d. 657, 664 (Tex.Crim.App. 2006). This Court should view the evidence
in the light most favorable to the habeas court’s ruling and give almost total
deference to the habeas court’s determination of the historical facts when
supported by the record, particularly when the fact findings are based on an
evaluation of credibility and demeanor. See Kniatt, 206 S.W.3d. at 664; Ex parte
Aguilar, 2014 WL 7234592, at *4; Ex parte Torres, No. 08-10-00330-CR, 2012
WL 1431660, at *2 (Tex.App.–El Paso April 25, 2012, no pet.)(not designated for
publication). A habeas court’s conclusions of law, however, are reviewed de novo,
as they do not turn on the habeas court’s assessment of credibility or the demeanor
of witnesses. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex.Crim.App. 2005);
Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). Here, because the trial
19
court decided the habeas-corpus application on solely legal, and not factual,
grounds, a de novo standard of review applies. See Guzman v. State, 955 S.W.2d
85, 89 (Tex.Crim.App. 1997)(appellate courts may review de novo mixed
questions of law and fact that do not turn on an evaluation of credibility and
demeanor).
B. Ineffective-assistance-of-counsel standard
A habeas applicant seeking habeas-corpus relief on the basis of an
ineffective-assistance-of-counsel claim must establish: (1) that his counsel’s
performance was deficient, and (2) he was prejudiced as a result. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986); Ex parte Aguilar,
2014 WL 7234592, at *4. When a person challenges the validity of the plea
entered upon the advice of counsel, contending that his counsel was ineffective,
the voluntariness of the plea depends on: (1) whether counsel’s advice was within
the range of competence demanded of attorneys in criminal cases and if not, (2)
whether there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty. See Ex parte Harrington, 310 S.W.3d 452, 458
(Tex.Crim.App. 2010). The habeas applicant bears the burden of proving by a
preponderance of the evidence that his counsel was ineffective. See Jackson v.
20
State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). Both prongs of Strickland
must be proven to establish ineffective assistance. See Perez v. State, 310 S.W.3d
890, 893 (Tex.Crim.App. 2010); Ex parte Aguilar, 2014 WL 7234592, at *4.
To establish deficient performance, an applicant must show that his trial
counsel’s performance fell below an objective standard of reasonableness based on
prevailing professional norms. See Strickland, 466 U.S. at 687; Ex parte Aguilar,
2014 WL 7234592, at *5. Trial counsel are cloaked with a strong presumption that
their actions were reasonably professional and motivated by sound trial strategy.
See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Jackson v.
State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Thus, any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. See McFarland v. State, 845
S.W.2d 824, 843 (Tex.Crim.App. 1992).
The second prong of Strickland requires a habeas applicant to prove that
there is a reasonable probability that, but for his counsel’s deficient performance,
he would have pleaded not guilty and requested a trial. See Hill v. Lockhart, 474
U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland, 466 U.S. at
687-88. It is not enough for a habeas applicant to baldly state that he would have
insisted on going to trial, an applicant must establish that a decision to reject a plea
21
bargain would have been rational under the circumstances. See Ex parte Aguilar,
2014 WL 7234592, at *4, citing Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct.
1473, 176 L. Ed. 2d 284 (2010). This objective test turns on “what a reasonable
person in the defendant’s shoes would do.” See id.
In reviewing a claim of ineffective assistance, the habeas court must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the claimant must overcome the
presumption that, under the circumstances, the challenged action “might be
considered sound trial strategy.” See Thompson, 9 S.W.3d at 813, citing
Strickland, 466 U.S. at 689. And when the record is silent as to trial counsel’s
strategy, an appellate court will not conclude that counsel’s assistance was
ineffective unless the challenged conduct was so outrageous that no competent
attorney would have engaged in it. See Goodspeed v. State, 187 S.W.3d 390, 392
(Tex.Crim.App. 2005); Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.
2001). In other words, trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective, and it is generally the
applicant’s burden to produce an affidavit or testimony from trial counsel to
substantiate his writ allegations. Goodspeed, 187 S.W.3d at 392.
22
II. Aguilar failed his burden of proving that trial counsel was ineffective.
A. Trial counsel had no duty to advise Aguilar that
deferred-adjudication community-supervision status was
considered a “conviction” under Federal law and that this alleged
conviction would have an enhancing effect on any potential
Federal criminal sentences because these were collateral
consequences of his guilty plea.
As stated above, Aguilar bore the sole burden of rebutting, by a
preponderance of the evidence, the strong presumption that trial counsel was
effective and of presenting a record demonstrating the reasons behind trial
counsel’s actions or inaction. See Thompson, 9 S.W.3d at 813.
Beyond Aguilar’s bare, conclusory allegations, nothing in the record
substantiated his claim that trial counsel failed to properly advise him that
deferred-adjudication community-supervision status was considered a
“conviction” under Federal law and that this alleged conviction would have an
enhancing effect on any potential Federal criminal sentences. In his subsequent
habeas application, Aguilar failed to produce an affidavit from trial counsel
substantiating his ineffective-assistance claims; thus, the record does not contain
trial counsel’s explanation as to what advice he gave Aguilar about the
consequences of his deferred-adjudication guilty plea.
23
Furthermore, Texas courts have long held that effective assistance of
counsel does not extend to collateral aspects of the prosecution. See Ex parte
Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997)(en banc)(overruled in part
on other grounds by Taylor v. State, 109 S.W.3d 443 (Tex.Crim.App. 2003)). A
consequence is collateral if it is not a definite, practical consequence of a
defendant’s guilty plea. Id. Courts have characterized the following as collateral
consequences of which a defendant need not be advised before his plea is
considered knowing and voluntary: possible enhancement of punishment,
institution of separate civil proceedings against defendant for commitment to a
mental-health facility, loss of good-time credit, possibility of imposition of
consecutive sentences, deprivation of rights to vote and to travel abroad, and the
possibility of undesirable discharge from the armed forces. Id. A consequence is
also collateral if its imposition is controlled by an agency that operates beyond the
direct authority of the trial judge. See Ex parte Aguilar, 2016 WL 921904, at *4.
Importantly, the enhancing effect of a state conviction on a Federal criminal
sentence is considered a collateral consequence of a defendant’s guilty plea. See
Crawford v. State, 155 S.W.3d 612, 614 (Tex.App.–San Antonio 2004, pet.
ref’d)(the enhancing effect of a state conviction on a Federal sentence is a
collateral consequence for purposes of the Sixth Amendment right to effective
24
assistance of counsel); see also Ex parte Drinkard, No. 02-11-00369-CR, 2012
WL 3207428, at *2 (Tex.App.–Fort Worth Aug. 9, 2012, no pet.)(mem.op., not
designated for publication). As such, the fact that Aguilar could face enhanced
punishment for any potential future Federal crimes due to his deferred-
adjudication guilty plea in 1999 was, at most, a collateral consequence of which
trial counsel had no obligation to advise. See Crawford, 155 S.W.3d at 614; Ex
parte Drinkard, WL 3207428, at *2.
Aguilar’s “Felon status in the Federal system of justice,” see (CR: 153), is
likewise a collateral consequence of his guilty plea of which trial counsel also had
no obligation to advise. Aguilar’s “Felon status” is a collateral consequence
because it is controlled by an agency, the Federal government, which operates
beyond the direct authority of the state trial judge. See State v. Jimenez, 987
S.W.2d 886, 888 n.6 (Tex.Crim.App. 1999); Ex parte Aguilar, 2016 WL 921904,
at *4 (both opinions explain that a consequence is collateral if its imposition is
controlled by an agency which operates beyond the direct authority of the trial
judge).
Here, the record did not affirmatively demonstrate that trial counsel failed to
properly advise Aguilar of the consequences of his deferred-adjudication guilty
plea, and Aguilar has thus failed his burden of overcoming the strong presumption
25
of effective assistance in this regard. See Ex parte Aguilar, 2016 WL 921904, at
*5 (holding that the applicant, by failing to subpoena or obtain an affidavit from
trial counsel, failed to defeat the strong presumption that the decisions of counsel
during trial fell within the wide range of reasonable professional assistance); Ex
parte Wong, No. 08-08-00003-CR, 2009 WL 3111827, at *2 (Tex.App.–El Paso,
Sept. 30, 2009, no pet.)(not designated for publication)(holding that other than the
defendant’s uncorroborated writ allegations, nothing in the record substantiated
the defendant’s contentions that counsel behaved in the manner alleged,
specifically, the defendant did not obtain an affidavit from trial counsel, and the
trial court determined that there was nothing in the habeas-corpus record showing
counsel advised the defendant to plead guilty or failed to fully apprise the
defendant of the facts and law applicable to the case); Ex parte Okere, 56 S.W.3d
846, 856 (Tex.App.–Fort Worth 2001, pet. ref’d)(holding that the applicant failed
to overcome the presumption that trial counsel was effective where the applicant
failed to subpoena any of the attorneys involved in the preparation and
presentation of his case to testify at his writ hearing, and the record contained no
explanation for trial counsel’s actions).
Because Aguilar failed to provide evidence, other than his self-serving
testimony, in support of his uncorroborated allegations that trial counsel failed to
26
properly advise him of the Federal criminal enhancement consequences of his
guilty plea or that his deferred-adjudication guilty plea was considered a
conviction by the Federal government, and because trial counsel had no duty to
advise Aguilar of such collateral consequences, Aguilar failed his burden of
proving any deficient performance by trial counsel at his habeas hearing. See, e.g.,
Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003)(holding that the
failure to make the required showing of either deficient performance (first prong)
or sufficient prejudice (second prong) defeats the ineffective-assistance claim).
B. Aguilar was not prejudiced by trial counsel’s alleged failure to
advise him of the consequences of his deferred-adjudication guilty
plea because his decision to reject the plea offer would not have
been rational under the circumstances.
Aguilar was not prejudiced by trial counsel’s alleged failure to advise him
that deferred-adjudication-probation status was considered a conviction under
Federal law and that this alleged conviction would have an enhancing effect on
any potential future Federal criminal sentences because, as discussed below, his
decision to reject the plea offer would not have been rational under the
circumstances.
In order to obtain relief on a claim that an applicant’s guilty plea was
rendered involuntary as a result of ineffective assistance of counsel, it is not
27
enough for an applicant to baldly assert that he would have insisted on going to
trial; an applicant must convince the court that a decision to reject the plea bargain
would have been rational under the circumstances. See Padilla, 559 U.S. at 372,
citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 1036, 1039,
145 L. Ed. 2d 985 (2000). And the United States Supreme Court has explained that
such an inquiry must be made objectively, without regard for the idiosyncrasies of
the particular decision-maker. See Hill, 474 U.S. at 59-60. In other words, an
assessment of the likelihood of a result more favorable to the defendant must
exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the
like. See Strickland, 466 U.S. at 695.
Factors to consider in determining whether a decision to reject a plea
bargain would have been rational under the circumstances are: (1) the strength of
the State’s case or evidence of the applicant’s guilt, (2) whether the applicant had
any legal or factual defenses, (3) whether the applicant presented evidence
indicating that the immigration consequences of his plea were his “paramount
concern,” and (4) the circumstances of the plea agreement compared to what the
applicant risked by going to trial. See Ex parte Torres, 483 S.W.3d 35, 48
(Tex.Crim.App. 2016); Ex parte Murillo, 389 S.W.3d 922, 928-31
(Tex.App.–Houston [14th Dist.] 2013, no pet.), abrogated on other grounds by Ex
28
parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013). Although the inquiry
is not whether the applicant would have received a more favorable disposition at
trial, the habeas court can properly consider evidence concerning the likelihood of
success at trial when determining whether it would have been rational to reject the
plea bargain. See Ex parte Murillo, 389 S.W.3d at 930.
During the habeas proceedings, the State presented evidence demonstrating
that it had a strong case. In complaint and offense reports, Ofc. Rodriguez related
that while on patrol on May 3, 1997, he saw two individuals, later identified as
Aguilar and Ricardo Marmolejo, sitting on a park bench and that as he passed by,
he saw Marmolejo pick an item up from the park table and “...bend[] down...” to
prevent Ofc. Rodriguez from seeing that he was concealing something in his right-
front pants pocket. See (CR: 34-36). Because of Marmolejo’s suspicious behavior,
Ofc. Rodriguez stopped his patrol unit and approached both Aguilar and
Marmolejo to ask them to produce identification. Id. As he approached, Ofc.
Rodriguez smelled a strong odor of marijuana emanating from the breath and
person of both Aguilar and Marmolejo, and he then asked Marmolejo whether he
had any narcotics, and Marmolejo answered that he had marijuana inside his right-
front pants pocket. Id. After seizing Marmolejo’s marijuana, Ofc. Rodriguez
approached Aguilar as he was pulling his wallet out of his pocket and observed a
29
small piece of white paper drop to the ground. Id. Ofc. Rodriguez picked up the
piece of paper, and after noticing its “diamond fold,” he unfolded the piece of
paper to find a white powdery substance that he believed was cocaine and placed
Aguilar under arrest. Id. Lab reports showed that the white powdery substance in
the diamond-folded piece of paper tested positive for cocaine. See (CR: 37).
Aguilar did not otherwise allege or demonstrate that he had a viable defense
to raise at trial. And, as this Court noted in its previous opinion, Aguilar at the
habeas hearing on his initial writ failed to show that a motion to suppress would
have been granted and that the remaining evidence would have been insufficient to
support his conviction. See Ex parte Aguilar, 2016 WL 921904, at *5. Moreover,
the record contained scant, if any, evidence showing that Aguilar informed trial
counsel or anyone else, including the trial court, that any Federal-law
consequences (that his deferred-adjudication guilty plea was considered a
conviction under Federal law and/or could enhance any potential Federal criminal
sentences) were his primary concern when he pleaded guilty to the charged
offense.
Further, Aguilar benefitted substantially from his plea agreement. Aguilar,
charged with a state-jail felony for possession of cocaine, was facing a punishment
range of 180 days’ to 2 years’ confinement and up to a $10,000 fine. See T EX.
30
P ENAL CODE § 12.35. And under the law in effect in 1999, the law did not provide
for mandatory probation for a state-jail-felony possession-of-cocaine conviction.
See T EX. CRIM. P ROC. CODE Art. 42.12 § 15(a) (1998) (“On conviction of a state
jail felony punished under Section 12.35(a), Penal Code, the judge may suspend
the imposition of the sentence and place the defendant on community supervision
or may order the sentence to be executed.”)(emphasis added). Instead, the State
agreed to reduce the charged felony offense to a Class-A misdemeanor, and
Aguilar received 2 years’ deferred-adjudication community supervision and was
discharged from probation early, after only 8 months. See (CR: 53).
Where the State’s evidence was strong, Aguilar failed to articulate any
viable defenses, the record did not show that Federal-law consequences were
Aguilar’s paramount concern when he pleaded guilty, and he benefitted
substantially from his plea agreement, Aguilar failed to demonstrate that a
decision to reject the plea bargain and insist on a trial would have been rational
under the circumstances. See, e.g., Ex parte Torres, 483 S.W.3d at 48; Ex parte
Murillo, 389 S.W.3d at 932. For these reasons, the habeas court’s order granting
Aguilar’s habeas relief and setting aside Aguilar’s “conviction” should be
reversed.
31
POINT OF ERROR FIVE: Aguilar failed his burden of proving his habeas
claim that his trial counsel rendered ineffective assistance of counsel by
allegedly failing to adequately inform him of the immigration consequences of
his guilty plea because trial counsel was not required to advise him of such
collateral consequences at the time of his plea, and thus, the habeas court
abused its discretion to the extent that it granted Aguilar habeas-corpus relief
on this basis.
UNDERLYING FACTS
The State here relies on the recitation of facts set out in the statement of
facts above.
ARGUMENT AND AUTHORITIES
The trial court abused its discretion in granting habeas relief on the grounds
that trial counsel was ineffective for failing to advise Aguilar of the immigration
consequences of his guilty plea, because this Court has previously ruled against
Aguilar on this issue because trial counsel had no duty to advise Aguilar of
immigration consequences in 1999 and because Aguilar was not prejudiced by his
trial counsel’s alleged failure to advise.7
7
See Ex parte Aguilar, 2016 WL 921904, at *4 (holding that because the applicant failed
to meet the deficient performance prong of Strickland, the trial court abused its discretion in
finding trial counsel ineffective). And because this issue has been previously decided by this
Court, Aguilar is foreclosed from relitigating it again. See Ex parte Young, 2008 WL 2967008, at
*2 (under the law-of-the-case doctrine, an appellate court’s resolution of a question of law in a
previous appeal of the same case will govern the disposition of the same issue when raised in a
subsequent appeal).
32
I. Standards of Review
The State incorporates herein and relies upon the standards of review
presented in its Point of Error Four.
II. Aguilar failed his burden of proving that trial counsel was ineffective.
A. Trial counsel had no duty to advise Aguilar of the immigration
consequences of his deferred-adjudication guilty plea.
To the extent that this Court considers Aguilar’s subsequent-writ claim that
he would not have pleaded guilty if he had known that this would make him
subject to deportation and denial of naturalization as equating to the fact that he
was not advised of the immigration consequences of his guilty plea on the merits,
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), does
not retroactively apply to Aguilar’s case. See Chaidez v. United States, 568 U.S.
342, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013)(holding that Padilla v. Kentucky
announced a new rule of constitutional criminal procedure, such that defendants
whose convictions became final prior to Padilla could not benefit from its
holding); see also Ex parte Aguilar, 2016 WL 921904, at *4 (holding that trial
counsel had no duty to inform applicant of the immigration consequences of his
guilty plea because at the time of the plea, such a consequence was considered a
collateral consequence, and that the habeas court erred in finding that trial counsel
33
rendered ineffective assistance of counsel when he did not advise applicant of the
possibility of deportation).
The Court of Criminal Appeals has likewise held that Padilla was a new
rule of criminal procedure that did not apply to cases already final on direct
review. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013);
see also State v. Guerrero, 400 S.W.3d 576, 587 (Tex.Crim.App. 2013). And
recognizing the holdings in Chaidez and Ex parte De Los Reyes, this Court has
also held that since Padilla announced a new rule, it did not retroactively apply to
the collateral review of a state conviction that was final when Padilla was decided.
See Ex parte Nieves, No. 08-11-00189-CR, 2013 WL 3943288, at *10
(Tex.App.–El Paso July 24, 2013, no pet.)(not designated for publication); Ex
parte Cisneros, No. 08-11-00180-CR, 2013 WL 1281995, at *8 (Tex.App.–El
Paso Mar. 28, 2013, no pet.)(not designated for publication).
In this case, Aguilar pleaded guilty to the charged possession-of-cocaine
offense on January 15, 1999, and the trial court placed him on two years’
deferred-adjudication community supervision. For purposes of Padilla, Aguilar’s
case was final on January 15, 1999. See Ex parte Nieves, 2013 WL 3943288, at
*10, citing Guerrero, 400 S.W.3d at 588. Because Aguilar’s case was final at the
time Padilla was decided, Aguilar cannot benefit from a retroactive application of
34
Padilla, no matter how he attempted to recharacterize the issue, and the trial
court’s order granting relief, to the extent it was on the basis of Padilla, should be
reversed for this reason alone. See, e.g., Guerrero, 400 S.W.3d at 588; Ex parte De
Los Reyes, 392 S.W.3d at 679; Ex parte Nieves, 2013 WL 3943288, at *10; Ex
parte Cisneros, 2013 WL 1281995, at *8.
B. Aguilar failed his burden of proving that trial counsel rendered
deficient performance by allegedly failing to advise him of the
immigration consequences of his deferred-adjudication guilty
plea.
Aguilar bore the sole burden of rebutting, by a preponderance of the
evidence, the strong presumption that trial counsel was effective and of presenting
a record demonstrating the reasons behind trial counsel’s actions or inaction. See
Thompson, 9 S.W.3d at 813. The United States Supreme Court recognized such a
presumption of effective assistance in the context of Padilla: “We should,
therefore, presume that counsel satisfied their obligation to render competent
advice at the time their clients considered pleading guilty.” See Padilla, 559 U.S.
at 372.
Trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective, and it is generally the applicant’s
burden to produce an affidavit or testimony from trial counsel to substantiate his
35
writ allegations. See, e.g., Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d
at 111; Sandoval v. State, Nos. 14-01-00049-CR, 14-01-00050-CR,
14-01-00051-CR, 2002 WL 533711, at *4 (Tex.App.–Houston [14th Dist.] Apr.
11, 2002, pet. ref’d)(not designated for publication)(noting the defendant’s failure
to subpoena his trial counsel to his motion-for-new-trial hearing, rejecting the
defendant’s erroneous argument that the burden was on the State to secure the
defendant’s trial counsel’s appearance at his hearing and that the State’s failure to
do so should result in an adverse inference, and reiterating that the burden was on
the defendant to rebut, by a preponderance of the evidence, the presumption that
trial counsel was effective).
Beyond Aguilar’s bare, conclusory allegations, nothing in the record
substantiated his allegation that trial counsel failed to properly advise him of the
immigration consequences of his guilty plea. Aguilar failed to produce an affidavit
from trial counsel substantiating his ineffective-assistance claim; thus, the habeas
record did not contain trial counsel’s explanation as to what advice he gave
Aguilar about his guilty plea.
Accordingly, the record did not affirmatively demonstrate that trial counsel
failed to properly advise Aguilar of the immigration consequences of his guilty
plea, such that Aguilar failed his burden of overcoming the strong presumption of
36
effective assistance in this regard. See Ex parte Okere, 56 S.W.3d at 856 (holding
that the applicant failed to overcome the presumption that trial counsel was
effective where the applicant failed to subpoena any of the attorneys involved in
the preparation and presentation of his case to testify at his writ hearing, and the
record contained no explanation for trial counsel’s actions); Ex parte Wong, 2009
WL 3111827, at *2 (holding that other than the defendant’s uncorroborated writ
allegations, nothing in the record substantiated the defendant’s contentions that
counsel behaved in the manner alleged, specifically, the defendant did not obtain
an affidavit from trial counsel, and the trial court determined that there was
nothing in the habeas-corpus record showing counsel advised the defendant to
plead guilty or failed to fully apprise the defendant of the facts and law applicable
to the case).
Because Aguilar failed to provide evidence, other than his self-serving
testimony, in support of his uncorroborated allegations that trial counsel failed to
properly advise him of the immigration consequences of his guilty plea, he failed
his burden of proving any deficient performance by trial counsel at his habeas
hearing, see, e.g., Rylander, 101 S.W.3d at 110, and the trial court’s order, to the
extent it granted relief on this basis, should be reversed for this reason as well.
37
C. Aguilar failed his burden of proving that he was prejudiced by
any deficient performance of trial counsel in failing to advise him
of the immigration consequences of his deferred-adjudication
guilty plea.
In the context of Padilla, an applicant must show not only that trial counsel
was required, but failed, to give proper advice concerning the immigration
consequences of pleading guilty, he must also specifically aver and affirmatively
prove, by credible evidence, that had he been aware that his guilty plea carried the
risk of deportation, he would have pleaded not guilty and insisted on going to trial.
See Padilla, 559 U.S. at 374; Hill, 474 U.S. at 59-60; Ex parte Torres, 483 S.W.3d
at 48; Ex parte Harrington, 310 S.W.3d at 458. As the United States Supreme
Court noted in Padilla, “it is often quite difficult for petitioners who have
acknowledged their guilt to satisfy Strickland’s prejudice prong.” See Padilla, 559
U.S. at 371 n.12.
Furthermore, in order to obtain relief on a claim that an applicant’s guilty
plea was rendered involuntary as a result of ineffective assistance of counsel, it is
not enough to baldly assert that he would have insisted on going to trial; an
applicant must convince the court that a decision to reject the plea bargain would
have been rational under the circumstances. See Padilla, 559 U.S. at 372, citing
Roe v. Flores-Ortega, 528 U.S. at 480, 486. And the United States Supreme Court
38
has explained that such an inquiry must be made objectively, without regard for
the idiosyncrasies of the particular decision-maker. See Hill, 474 U.S. at 59-60. In
other words, an assessment of the likelihood of a result more favorable to the
defendant must exclude the possibility of arbitrariness, whimsy, caprice,
“nullification,” and the like. See Strickland, 466 U.S. at 695.
Factors to consider in determining whether a decision to reject a plea
bargain would have been rational under the circumstances are: (1) the strength of
the State’s case or evidence of the applicant’s guilt, (2) whether the applicant had
any legal or factual defenses, (3) whether the applicant presented evidence
indicating that the immigration consequences of his plea were his “paramount
concern,” and (4) the circumstances of the plea agreement compared to what the
applicant risked by going to trial. See Ex parte Torres, 483 S.W.3d at 48; Ex parte
Murillo, 389 S.W.3d at 928-31, abrogated on other grounds by Ex parte De Los
Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013). Although the inquiry is not
whether the applicant would have received a more favorable disposition at trial,
the habeas court can properly consider evidence concerning the likelihood of
success at trial when determining whether it would have been rational to reject the
plea bargain. See Ex parte Murillo, 389 S.W.3d at 930.
39
During the habeas proceedings, the State presented evidence demonstrating
that it had a strong case. In complaint and offense reports, Ofc. Rodriguez related
that while on patrol on May 3, 1997, he saw two individuals, later identified as
Aguilar and Ricardo Marmolejo, sitting on a park bench and that as he passed by,
he saw Marmolejo pick an item up from the park table and “...bend[] down...” to
prevent Ofc. Rodriguez from seeing that he was concealing something in his right-
front pants pocket. See (CR: 34-36). Because of Marmolejo’s suspicious behavior,
Ofc. Rodriguez stopped his patrol unit and approached both Aguilar and
Marmolejo to ask them to produce identification. Id. As he approached, Ofc.
Rodriguez smelled a strong odor of marijuana emanating from the breath and
person of both Aguilar and Marmolejo, and he then asked Marmolejo whether he
had any narcotics, and Marmolejo answered that he had marijuana inside his right-
front pants pocket. Id. After seizing Marmolejo’s marijuana, Ofc. Rodriguez
approached Aguilar as he was pulling his wallet out of his pocket and observed a
small piece of white paper drop to the ground. Id. Ofc. Rodriguez picked up the
piece of paper, and after noticing its “diamond fold,” he unfolded the piece of
paper to find a white powdery substance that he believed was cocaine and placed
Aguilar under arrest. Id. Lab reports showed that the white powdery substance in
the diamond-folded piece of paper tested positive for cocaine. See (CR: 37).
40
Aguilar did not otherwise allege or demonstrate that he had a viable defense
to raise at trial. And, as this Court noted in its previous opinion, Aguilar at the
habeas hearing on his initial writ failed to show that a motion to suppress would
have been granted and that the remaining evidence would have been insufficient to
support his conviction. See Ex parte Aguilar, 2016 WL 921904, at *5. Moreover,
the record contained scant, if any, evidence showing that Aguilar informed trial
counsel or anyone else, including the trial court, that immigration consequences
were his primary concern when he pleaded guilty to the charged offense.
Further, Aguilar benefitted substantially from his plea agreement. Aguilar,
charged with a state-jail felony for possession of cocaine, was facing a punishment
range of 180 days’ to 2 years’ confinement and up to a $10,000 fine. See T EX.
P ENAL CODE § 12.35. And under the law in effect in 1999, the law did not provide
for mandatory probation for a state-jail-felony possession-of-cocaine conviction.
See T EX. CRIM. P ROC. CODE Art. 42.12 § 15(a) (1998) (“On conviction of a state
jail felony punished under Section 12.35(a), Penal Code, the judge may suspend
the imposition of the sentence and place the defendant on community supervision
or may order the sentence to be executed.”)(emphasis added). Instead, the State
agreed to reduce the charged felony offense to a Class-A misdemeanor, and
Aguilar received 2 years’ deferred-adjudication community supervision and was
41
discharged from probation early, after only 8 months. See (CR: 53).
Where the State’s evidence was strong, Aguilar failed to articulate any
viable defenses, the record did not show that immigration consequences were
Aguilar’s paramount concern when he pleaded guilty, and he benefitted
substantially from his plea agreement, Aguilar failed to demonstrate that a
decision to reject the plea bargain and insist on a trial would have been rational
under the circumstances. See, e.g., Ex parte Torres, 483 S.W.3d at 48; Ex parte
Murillo, 389 S.W.3d at 932. For these reasons, the habeas court’s order granting
Aguilar’s habeas relief and setting aside Aguilar’s “conviction” should be
reversed.
42
PRAYER
WHEREFORE, the State prays that the habeas court’s order granting
Aguilar’s habeas relief and setting aside Aguilar’s conviction be reversed.
Respectfully submitted,
JAIME ESPARZA
DISTRICT ATTORNEY
34th JUDICIAL DISTRICT
/s/ Ronald Banerji
RONALD BANERJI
ASST. DISTRICT ATTORNEY
DISTRICT ATTORNEY’S OFFICE
EL PASO COUNTY COURTHOUSE
500 E. SAN ANTONIO
EL PASO, TEXAS 79901
(915) 546-2059 ext. 3312
FAX (915) 533-5520
E-MAIL: rbanerji@epcounty.com
SBN 24076257
ATTORNEYS FOR THE STATE
43
CERTIFICATE OF COMPLIANCE
The undersigned does hereby certify that the foregoing document, beginning
with the statement of facts on page 1 through and including the prayer for relief on
page 43, contains 8,968 words, as indicated by the word-count function of the
computer program used to prepare it.
/s/ Ronald Banerji
RONALD BANERJI
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the above brief was sent
by e-mail by utilizing the E-serve system on May 29, 2018, to appellant’s attorney:
Matthew DeKoatz, mateodekoatz@yahoo.com.
/s/ Ronald Banerji
RONALD BANERJI
44