Alvarez, Ex Parte Daniel ( 2015 )

PD-0419-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/21/2015 5:18:36 PM
Accepted 5/22/2015 11:41:05 AM
ABEL ACOSTA
CLERK
NO. PD-0419-15
_____________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
_____________________________________________
EX PARTE: DANIEL ALVAREZ
_____________________________________________
THE 384 TH DISTRICT COURT OF EL PASO COUNTY, TEXAS
TRIAL COURT NO. 960D10169-384-1
THE COURT OF APPEALS EIGHTH DISTRICT OF TEXAS
NO. 08-13-00025-CR
PETITION FOR DISCRETIONARY REVIEW
JAMES D. LUCAS
2316 Montana Avenue
El Paso, Texas 79903
May 22, 2015 Tel: (915) 532-8811
Fax: (915) 532-8807
SBN 12658300
Attorney for Petitioner
DANIEL ALVAREZ
jlucas2@elp.rr.com
TABLE OF CONTENTS
TABLE OF CONTENTS.............................................................................................i
IDENTITY OF THE PARTIES..................................................................................ii
INDEX OF AUTHORITIES......................................................................................iii
STATEMENT REGARDING ORAL ARGUMENT................................................iv
STATEMENT OF THE CASE..................................................................................iv
STATEMENT OF PROCEDURAL HISTORY.......................................................iv
GROUNDS PRESENTED.........................................................................................v
ARGUMENT..............................................................................................................1
1. By ruling that a conflict of interest is not proven where the un-refuted evidence
establishes that an attorney who has undertaken the joint representation of co-
defendants follows through with a plan and agreement he has made with one
co-defendant to secure the dismissal of that co-defendant’s case in exchange
for inducing the other co-defendant to plead guilty, the court of appeals has
decided a case which conflicts with the Supreme Court decision in Dukes v.
Warden, 406 U.S. 250 (1972)..........................................................................1
2. The ineffective assistance test adopted by the court of appeals in this case
conflicts with and misstates the test adopted by the U.S. Supreme Court in
Cuyler v. Sullivan, 446 U.S. 335 (1980)..........................................................7
PRAYER...................................................................................................................11
CERTIFICATE OF COMPLIANCE........................................................................12
CERTIFICATE OF SERVICE..................................................................................12
APPENDIX...............................................................................................................13
i
INDEX OF AUTHORITIES
FEDERAL CASES PAGES
Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981).................................................8, 9, 11
Cuyler v. Sullivan, 446 U.S. 335-50 (1980)..............................................5, 7, 8, 9, 11
Dukes v. Warden, 406 U.S. 250 (1972).........................................................1, 4, 5, 7
Turnquest v. Wainright, 651 F.2d 331, 334 (5th Cir. 1981)....................................11
United States v. Mers, 701 F.2d 1321 (11th Cir. 1983).............................................10
United States v. Salado, 339 F.3d 285 (2003)..........................................................10
STATE CASES
Gaston v. State, 136 S.W.3d 315, 318
(Tex.App.–Houston [1st Dist.] 2004, pet. dismissed).................................................5
Ex parte McFarland, 163 S.W.3d 743, 759 (Tex. Crim.app. 2005).....................7, 9
Routier v. State, 112 S.W.3d 554(Tex. Crim. App. 2003).........................................9
RULES
TEX. CODE CRIM PROC. art.11.072..........................................................................iii
ii
IDENTITY OF THE PARTIES
For Petitioner Daniel Alvarez
James D. Lucas
Writ and Appellate Attorney
2316 Montana Avenue
El Paso, Texas 79903
For the State of Texas
Lily Stroud, Asst. District Attorney
El Paso County Courthouse, Room 201
500 East San Antonio
El Paso, Texas 79901
Jaime Esparza
District Attorney
El Paso County Courthouse, Room 201
500 East San Antonio
El Paso, Texas 79901
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
Judge
Hon. Patrick Garcia
El Paso County Courthouse
500 East San Antonio
El Paso, Texas 79901
iii
STATEMENT REGARDING ORAL ARGUMENT
Petitioner, Daniel Alvarez, waives oral argument in this case.
STATEMENT OF THE CASE
Daniel, Appellee in the court of appeals below, was indicted for the second
degree felony of possession of cocaine in an mount of our grams or more, but less
than 200 grams. CR at 3. On June 9, 1997, Alvarez pled guilty and was assessed
punishment a 5 years’ deferred adjudication community supervision sentence. I Supp.
CR at 3-8. Alvarez did not appeal the trial court’s order placing him deferring an
adjudication. On July 27, 2012, Alvarez filed an application for writ of habeas corpus
pursuant to Article 11.072 of the Texas Code of Criminal Procedure. CR 4-21. On
December 17, 2012, the court heard evidence and argument and on January 16, 2013,
the trial court granted Alvarez’ application for writ of habeas corpurs and issued
findings of fact and conclusions of law. RR 4-42; CR at 163-165.
STATEMENT OF PROCEDURAL HISTORY
1. On January 28, 2015, the court of appeals reversed the trial court’s order
granting relief on Daniel Alvarez’ application for writ of habeas corpus.
2. On February 27, 2015, a motion for rehearing was filed and on the same day
an motion to extend time to file a motion for extension of time to file motion
for rehearing was also filed.
3. On March 18, 2015, the court of appeals denied Daniel Alvarez’ motion for
rehearing.
iv
GROUNDS FOR REVIEW
1. The court of appeals erred by ruling that a conflict of interest is not proven
where the un-refuted evidence establishes that an attorney undertaking the joint
representation of co-defendants follows through with a plan and agreement he
has made with one co-defendant to secure the dismissal of that co-defendant’s
case in exchange for inducing the other co-defendant to plead guilty
2. The test for ineffective assistance test the court of appeals adopted in this case
misstates the test adopted by the U.S. Supreme Court in Cuyler v. Sullivan, 446
U.S. 335 (1980)
v
ARGUMENT
1. By ruling that a conflict of interest is not proven where the un-refuted
evidence establishes that an attorney who has undertaken the joint
representation of co-defendants follows through with a plan and
agreement he has made with one co-defendant to secure the dismissal of
that co-defendant’s case in exchange for inducing the other co-defendant
to plead guilty, the court of appeals has decided a case which conflicts with
the Supreme Court decision in Dukes v. Warden, 406 U.S. 250 (1972)
Police reports prepared in connection with this case reflect that on November
21, 1996, Applicant Daniel Alvarez was arrested while operating a 1986 Oldsmobile
motor vehicle on Lee Trevino Drive in El Paso County, Texas. CR 9. Although the
police reports do not so indicate, Alvarez was not the owner of the 1986 Oldsmobile
vehicle stopped by the police. Id. Another male individual found inside the vehicle
with Alvarez at the time the traffic stop was made identified himself as Julian Jicalan
Lopez, with a date of birth of January 10, 1975. Id. At the time of the traffic stop, a
vehicle search of the motor vehicle Alvarez was driving, at which time approximately
10 grams of cocaine was allegedly seized from inside the dashboard of the vehicle
Alvarez and Lopez occupied. Id. These reports indicate that this cocaine was not in
plain view, but well-hidden from view. Id.
Daniel Alvarez (“Alvarez”) was indicted under the name he was arrested on
November 21, 1996 for possession of cocaine, more than 4 grams but under 200
grams. CR 10; CR 114. With his Attorney Barraza as his attorney, he pled guilty to
Page 1
this charge. Co-defendant Julian Jicalan Lopez was later indicted under the name
Santiago Jicalan Sanchez under cause number 970D03234, after the defendant’s true
name was discovered to be different than that of the name he gave at the time of his
arrest. Id. After Sanchez was indicted for the offense of possession of more than 4
grams and under 200 grams in cause number 970D03234, nothing transpired in
Sanchez’ case until on or about September 25, 2002, when the indictment in this
cause was served on Sanchez while in jail). Id. On October 29, 2003, an order was
issued dismissing the charge against Sanchez. Id.
The express attorney-client legal services agreement reached between Attorney
Barraza and Sanchez was that Sanchez would pay Attorney Barraza the attorney’s
fees necessary to defend both Alvarez and Sanchez on the pending cocaine possession
charge they were arrested for on November 21, 1996. Id. Co-defendant Sanchez
confirmed the existence of this agreement by providing an affidavit wherein he stated
that he paid Attorney Barraza to represent both Applicant Alvarez and himself on the
November 21, 1996 cocaine possession charge. Id.; CR 116.
While Alvarez was aware that Attorney Barraza had been paid by co-defendant
Santiago Sanchez, he was not aware that co-defendant Sanchez had agreed, in
exchange for this fee, to attempt to secure a more favorable outcome of the case for
Sanchez. CR 11; CR 115. Specifically, Alvarez was unaware that the agreement
Page 2
Attorney Barraza reached with Sanchez was that he would attempt to secure a
community supervision sentence for Alvarez and a dismissal of his case. Attorney
Barraza lived up to his agreement with co-defendant Santiago Sanchez. 1d. Not only
did he, as Alvarez’ trial counsel, negotiate a community supervision sentence for
Alvarez with the prosecutor; he also secured a dismissal of Sanchez’ indictment on
the same possession of cocaine charge. Id.
In the trial court below, co-defendant Sanchez provided a sworn affidavit in
support of Alvarez’ claim that Sanchez hired Attorney Barraza to represent both
himself and Daniel Alvarez. CR 141. In his affidavit, Sanchez stated that the cocaine
with which Barraza was accused of possessing belonged to him and that he hired
Attorney Barraza to ensure that Alvarez took the “fall” for the offense. Id. Sanchez’
affidavit further corroborated the claim made by Alvarez in his affidavit, that he in
fact did lead Daniel Alvarez to believe that Attorney Barraza intended to defend him
to the best of his ability, when in fact he and Barraza “had already agreed to have
Daniel Alvarez plead guilty to the indicted charge so that the charge against him
could later be dismissed.” CR 114-115; CR 141-142.
The evidence at the writ hearing further established that Santiago Sanchez was
the more culpable defendant. CR 77-92. Unlike Alvarez, Sanchez was identified early
on in the investigation as a known drug addict and as a repeat offender under the
Page 3
Repeat Offender Program. (CR 77). According to one member of the arrest team,
Sanchez had previously been arrested for marijuana, unlike Alvarez. CR 78. On the
date Sanchez and Alvarez were arrested, Sanchez apartment at 3328 Hayes, #13 was
searched. CR 78-79. During the search, numerous bills of rolled currency were found
in the apartment and seized as drug contraband. While search Sanchez’ apartment,
the officers also encountered a cocaine dealer known as Abraham Gaona who was
inside the apartment when the search commenced. (CR 78-79, 86).
The court of appeals below addressed Sanchez’ claim that his conviction for
possession of over four grams of cocaine should be vacated based on ineffective
assistance by reason of the conflict of interest which resulted from Attorney Barraza’s
dual representation of Alvarez and Sanchez in the following manner:
To be sure, there is some evidence of the existence of a true conflict of interest
presented on the record. The allegation that attorney Manny Barraza accepted
the representation of two persons with the intent to plead one to the detriment
of the other is precisely the type of conflict alluded in Dukes v. Warden, 406
U.S. 250, 92 S.Ct 15551, 32 L. Ed. 2d 45 (1972). In Dukes, one of several co-
defendants represented by the same firm of attorney complained that his guilty
plea was tainted by a conflict of interest. He had learned that his attorney
when pleading out the co-defendants had tried to gain leniency for the other
defendants by suggesting that he was the more culpable defendant. Id., 406
U.S. at 254, 92 S.Ct. at 1554. The court rejected the claim, but specifically
referenced a finding of the lower court that there was no evidence that the
attorney “inducted [Dukes] to plead guilty in furtherance of a plan to obtain
more favorable consideration from the court for other clients.” Id., 406 U.S. at
257, 92 Sct. At 1554.... There is, however, some evidence on this record of a
plan to favor one defendant over the other. Opinion, pp. 12-13.
Page 4
But in looking at this record, we are not directed to any evidence supporting
the second Cuyler predicate that the conflict had an adverse effect on specific
instances of attorney Barraza’s conduct. “An appellant must identify specific
instances in the record that reflect a choice that counsel made between possible
alternative courses of action, such as “eliciting or failing to elicit evidence
helpful to one [interest] but harmful to the other.” Gaston v. State, 136 S.W.3d
315, 318 (Tex.App.–Houston [1st Dist.] 2004, pet. dismissed)....The only
conduct of attorney Barraza reflected by the evidence in the record was the
plea bargain itself. There is no evidence of how the terms of the plea was
reached, such as negotiations behind the plea. There is no evidence that he
took any specific action to use the terms of Alvarez’ plea to gain some
particular concession for Jicalan Sanchez (aka Jicalan Lopez). There is no
evidence of the investigation that Barraza may or may have not have
undertaken to develop a defense, particularly as to the cocaine found in his
house and on his person. We acknowledge that the indictment and plea
occurred almost fifteen years before the Application was filed, but Alvarez still
bore the burden to present some evidence of each element of his claims.
Opinion, p. 13.
In Dukes v. Warden, 406 U.S. 250 92 S.Ct 1551, 32 L. Ed. 2d 45 (1972), the petitioner
complained that an attorney from the same law firm representing him who was
representing two female defendants had placed the primary blame on him as the
primary culpable party for the females conduct during the sentencing of the two
females in their cases. The United States Supreme Court rejected this claim. 406
U.S., at 256. It instead adopted the Connecticut Supreme court’s analysis of the
conflict of interest claim presented, to wit: “[Petitioner] does not claim, and it is
nowhere indicated in the finding, nor could it be inferred from the finding, that either
Attorney Zaccagnino or Attorney Delaney induced [petitioner] to plead guilty in
Page 5
furtherance of a plan to obtain more favorable consideration from the court for other
clients.” Petitioner has made such a showing in this case.
In his writ application, Petitioner Daniel Alvarez demonstrated that his trial
counsel, Attorney Manuel Barraza, entered in an agreement with Santiago Sanchez
which was detrimental to him. Pursuant to their contractual agreement, Santiago
Sanchez agreed to pay the fee to have Attorney Barraza represent both Daniel Alvarez
and him (Sanchez) on the same possession of cocaine charge they had been arrested
for if Attorney Barraza promised to secure a dismissal of his case in exchange for
pleading Alvarez to the cocaine possession charge. Alvarez filed a sworn allegation
which established that on the date he entered his guilty plea he “unaware of the
conflict of interest rules and that an attorney should not represent two co-defendants
charged with the same offense.” CR, at 115. Alvarez further demonstrated in a sworn
affidavit that he was unaware of the specific agreement co-defendant Sanchez had
made with Attorney Barraza whereby Attorney Barraza was to secure Alvarez’ guilty
plea to the cocaine charge in exchange for securing a dismissal for Sanchez on the
same cocaine possession charge.
Attorney Barraza complied with this part of the agreement by securing a guilty
plea by Alvarez to the cocaine possession charge and securing a dismissal for
Sanchez as to this same charge. Based on the evidence presented by Alvarez in his
Page 6
writ application, it can therefore be inferred that Attorney Manuel Barraza induced
Daniel Alvarez to plead guilty in exchange for his promise to secure a dismissal for
co-defendant Santiago Sanchez. Based on the holding in Dukes v. Warden, supra, the
court of appeals erred in ruling that Daniel Alvarez did not make a sufficient showing
that Attorney Barraza’s joint representation of Sanchez and him resulted in an actual
conflict of interest which deprived Alvarez of effective assistance of counsel. This
Court should therefore grant review of this point for review.
2. The ineffective assistance test adopted by the court of appeals in this case
conflicts with and misstates the test adopted by the U.S. Supreme Court in
Cuyler v. Sullivan, 446 U.S. 335 (1980)
The court of appeals correctly cites to footnote 52 of the Texas Court of
Criminal Appeals’ decision in Ex parte McFarland, 163 S.W.3d 743, 759 (Tex.
Crim.app. 2005) as establishing that “The Cuyler analysis has two elements: The
applicant must demonstrate that (1) defense counsel was burdened by an actual
conflict of interest; and (2) the conflict had an adverse effect on specific instances of
counsel’s performance.” However, this Court of Criminal Appeals decision in Ex
parte McFarland, supra, incorrectly sets forth the Cuyler standard.
In Cuyler, the United States Supreme Court held that “In order to establish a
violation of the Sixth Amendment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely affected his lawyer's
Page 7
performance.” See Cuyler v. Sullivan, 446 U.S. at 348-349. For the court of appeals
to require a writ applicant like Alvarez to show under the second prong of Cuyler that
the actual conflict of interest had an adverse effect on specific instances of counsel’s
performance is different than requiring the writ applicant to prove that the “actual
conflict adversely affected the lawyer’s performance.” In fact, a proper reading of
Cuyler lead to the conclusion that only an actual conflict must be shown to warrant
reversal of a defendant’s conviction. See Baty v. Balkcom, 661 F.2d 391 (5th Cir.
1981) (holding that ‘we believe a close examination of the opinion as a whole
indicates that the Supreme Court did not intend to establish a standard requiring proof
of adverse effect on counsel in addition to proof of an actual conflict of interest.”
The test adopted by the court of appeals test is thus much more stringent than
that created in Cuyler. Under the court of appeals’ analysis, an attorney’s
performance can only for specific instances of the attorney’s performance (i.e.
affirmative conduct). As worded, the “conflict of interest” test created in Cuyler,
supra, encompasses not only that specific instances of the attorney’s performance be
considered, but specific instances where the attorney failed to act on behalf of the
client. Thus, the court of appeals in Alvarez’ case thus misapplied Cuyler based on
Page 8
a footnote taken from Ex parte McFarland, supra.1 It may be that the Court of
Criminal Appeals applied Cuyler test the way it did based on the facts and
circumstances of Ex pare McFarland, supra. But for the court of appeals to revise
the Cuyler test under the facts of Alvarez’ case was clearly improper.
Alvarez was found guilty pursuant to a guilty plea – rather than a trial.
Therefore, unlike cases resolved by a contested trial, it is difficult to ascertain exactly
what Attorney Barraza’s thought processes or what his strategy was. This is because
the evidence needed to demonstrate what his though processes were or his trial
strategy does not appear in the transcript of Alvarez’ guilty plea. The kind of
evidence which will often manifest itself does not exist in this case because Alvarez’
case never went to trial. For this reason, the failure of Alvarez’ attorney to act (i.e.
his omissions) should not have bee disregarded in conducting a conflict analysis.
Attorney Barraza may have been able to plead Alvarez to a lesser charge or obtained
dismissal of his cocaine possession charge in exchange for convincing Alvarez to
cooperate as a witness for the Government against co-defendant Santiago Sanchez.
See e.g. Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981) (recognizing that an actual
1
Petitioner bases this contention on the Court of Criminal Appeals’ decision in Routier v.
State, 112 S.W.3d 554 (Tex. Crim. App. 2003). There, it held that where the Culyer v. Sullivan
standard applies, “to obtain relief, the appellant must show that (1) an actual conflict of interest
existed, (2) which affected [the trial attorney’s] representation of the appellant.” Id., at 584. No
mention is made of proof having to be made that the conflict had an adverse effect of specific
instances of the attorney’s performance, as in Alvarez’ case.
Page 9
conflict exists where the possibility that one co-defendant can benefit from a
cooperation agreement with the government).
As the more culpable party, reaching an agreement with the State to prosecute
Sanchez, a repeat criminal offender, on the cocaine possession charge. This would
have been a very viable strategy which Attorney Barraza could have pursued, but for
the conflict of interest with which he was confronted. Another strategy Attorney
Barraza could have employed would have been to shift the blame for the offense on
Santiago Sanchez during trial. See e.g. United States v. Mers, 701 F.2d 1321 (11th Cir.
1983). This strategy was viable, given Sanchez’ prior convictions as a repeat
offender and on the evidence that he was the money person behind the cocaine
possession offense of which both he and Alvarez were indicted. But Attorney
Barraza could not have pursued this strategy at the time Alvarez case was before him
because this would have required Attorney Barraza to implicate co-defendant
Sanchez, when he had expressly agreed to secure a dismissal of the cocaine
possession charges brought against Sanchez.
The court of appeals therefore erred in treating Attorney Barraza’s failure to
pursue these viable defense and trial strategies as inconsequential based on its belief
that Alvarez could not demonstrate that the conflict had an adverse effect on specific
instances of his attorney’s performance. United States v. Salado, 339 F.3d 285 (2003).
Page 10
It also failed to recognize the well established rule “that when counsel is confronted
with an actual conflict of interest, prejudice must be presumed, and except under the
most extraordinary circumstances, the error cannot be considered harmless."
Turnquest v. Wainright, 651 F.2d 331, 334 (5th Cir. 1981). This rule is particularly
applicable to the guilty plea context, where an attorney can in effect hide the conflict
of interest much better than in the trial setting. Moreover, an attorney’s conflict
should not be excused merely because he has induced a co-defendant to plead guilty
in order to avoid the conflict which will necessarily manifest itself if he is forced to
continue forward and defend that client in a contested jury trial. See Baty v. Balkcom,
supra. 661 F.2d at 397 (5th Cir. 1981). The court of appeals limited analysis to
inquiring whether “the conflict had an adverse effect on specific instances of
counsel’s performance” thus distorts the ruling and analysis provided by the Supreme
Court in Cuyler v. Sullivan, supra. As noted above, this test for determining whether
an actual conflict of interest actually exists, as set out in Cuyler v. Sullivan, supra, is
much broader. For this reason, review of this point should be granted.
PRAYER
For all of the reasons stated above, the Court of Criminal Appeals should grant
this petition on both points for review identified and order briefing.
Page 11
Respectfully submitted,
/s/ James D. Lucas
JAMES D. LUCAS
Attorney for Appellee
2316 Montana Avenue
El Paso, Texas 79903
Tel. (915) 532-8811
Fax (915) 532-8807
SBN 12658300
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
This petition for discretionary review filed in support of thereof comply with
the type-volume limitations of 9.4. It contain 3,283 words, excluding the parts of the
brief exempted by 9.4(1); and this brief complies with the typeface requirements of
9.4(e) because this brief has been prepared in a proportionally spaced typeface using
Corel Word Perfect in Times New Roman, 14-point.
/s/ James D. Lucas
JAMES D. LUCAS
CERTIFICATE OF SERVICE
I, James D. Lucas, hereby certify that on May 18, 2015, a true and correct copy
of the foregoing document was served on the following by electronic means:
Hon. Jaime Esparza, District Attorney State Prosecuting Attorney
500 East San Antonio P.O. Box 12405
El Paso, Texas 79901 Austin, Texas 78711
/s/ James D. Lucas
JAMES D. LUCAS
Page 12
APPENDIX
1- COURT OF APPEALS OPINION AND JUDGMENT
Page 13
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-13-00025-CR
§
Appeal from
EX PARTE: DANIEL ALVAREZ §
384th District Court
§
of El Paso County, Texas
§
(TC # 960D10169-384-1)
§
OPINION
This is an appeal from a habeas corpus proceeding raising issues familiar to this Court.
The trial court granted the Application for Writ of Habeas Corpus based on the belief that
Padilla v. Commonwealth of Kentucky1 applied retroactively to guilty pleas taken before Padilla
was decided. A case from this Court supported that view at the time the Application was
granted, but as noted below, subsequent decisions from the United Sates Supreme Court and
Texas Court of Criminal Appeals have taken a different tact. Faced with this reality, Daniel
Alvarez now falls back on a waiver argument and an alternate basis to affirm the trial court’s
decision. For the reasons stated below, we reverse the trial court’s issuance of the Writ of
Habeas Corpus.
1
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Padilla requires defense counsel to advise defendants of
the immigration consequences of a plea agreement if they could easily be determined from reading the federal
removal statute. 559 U.S. at 368, 130 S.Ct. at 1483.
FACTUAL SUMMARY
Daniel Alvarez pleaded guilty to possession of more than four grams, but less than 200
grams of cocaine on June 9, 1997. He was given deferred adjudication with five years of
probation, a fine, and community service. Before admitting to the offense, the trial judge
admonished him that “you can be deported if you plead guilty to that offense, and you can’t
return to the United States legally, [and] that any application you make for citizenship will be
denied.” Plea paperwork also contained his acknowledgment that: “I further understand that if I
am not a citizen of the United States of America a plea of guilty or nolo contendere to this
offense in this cause may result in my being deported, excluded from further admission into the
United States, or denied naturalization under Federal law.” Alvarez entered his plea and as far as
the record shows, he successfully completed the term of that supervised release.
The possession charge grew out of these facts: an undercover police officer observed
Alvarez driving a 1986 Oldsmobile which pulled up alongside another car to make what
appeared to be an illegal drug sale. The officer followed Alvarez and witnessed several other
suspected drug transactions. The police then followed Alvarez to his residence to identify where
he lived. The undercover officer watched Alvarez for several weeks and observed him engaging
in what appeared to be more drug deals, always using the Oldsmobile to make deliveries.
The police arranged with the City Sanitation Department to obtain the trash from
Alvarez’ residence. In his rubbish, they found plastic packaging with cocaine residue. Based on
what they had learned, the police obtained a search warrant for the Oldsmobile and Alvarez’
residence. When the warrant was executed at the residence, the police found a plastic baggie
with 7.5 grams of what was later identified as cocaine in a shirt hanging in the closet. There
were other people at the house at the time of the search, including Alvarez’ wife.
2
The police executed the search warrant for the Oldsmobile by stopping the vehicle while
Alvarez, and another person identified as Julian Jicalan Lopez, were driving around. A search of
the vehicle turned up an additional amount of cocaine found in a plastic baggie in an air
conditioner vent. Alvarez was then arrested and placed in the back of a patrol car. Another
baggie of cocaine was found on the floorboard of the police cruiser where Alvarez was sitting.
Jicalan Lopez had no identification when he was arrested. He was taken back to his apartment
which he agreed could be searched. The search turned up a large amount of cash.
Both Alvarez and Jicalan Lopez were indicted on charges stemming from the possession
and suspected sale of the cocaine. Alvarez was indicted for unlawful possession of a controlled
substance in the Penalty Group I (Cocaine) exceeding 4 grams but less than 200 grams.
Jicalan Lopez, whose real name is Santiago Jicalan Sanchez, hired attorney Manny
Barraza to defend both him and Alvarez. Jicalan Sanchez (aka Jicalan Lopez) executed an
affidavit, submitted in this proceeding, which swore that he paid Barraza $15,000 to defend him
and also paid $5,000 to Barraza to arrange for a guilty plea for Alvarez. His affidavit reads in
part:
I also paid Manuel Barraza $5,000.00 to plea Sr. Daniel Alvarez guilty and to
obtain probation for him. By directing Attorney Barraza to plead Sr. Daniel
Alvarez Manuel Barraza guilty to the cocaine possession charge, Attorney
Barraza was able to get me deported with no charges, even though I had a prior
arrest record. Attorney Barraza knew I was guilty of the charge because I
explained the circumstances of the arrest to him and explained to him that the
cocaine which had been seized from the vehicle belonged to me. However, I
made it very clear to Attorney Barraza that I did not intend to plead guilty to the
cocaine possession charge and wanted the case dismissed. It was explained to
him that Sr. Daniel Alvarez would take the ‘fall’ for the offense. Attorney
Barraza agreed to this arrangement and seemed to be satisfied, since I was the
person paying for Sr. Daniel Alvarez’ legal defense.
While this was taking place, I led Sr. Daniel Alvarez to believe that Attorney
Barraza intended to defend him to the best of his ability, when actually, Attorney
Barraza and I had already agreed to have Sr. Daniel Alvarez plead guilty to the
3
indicted charge so the charge against me could later be dismissed. Sr. Daniel
Alvarez, who had no knowledge of the cocaine in the vehicle, did not know that
cocaine was inside the vehicle. Nevertheless, I arranged to have Attorney Barraza
to work out a plea of guilty with the State so that I could be released from the
charge.
As noted above, Alvarez pleaded guilty with Manny Barraza as his counsel. Jicalan
Sanchez (aka Jicalan Lopez) apparently absconded only to be re-arrested in 2002 on other drug
charges. The record indicates that he pled guilty to those other drug charges in 2003 and
received a six year sentence to be served concurrently with a federal sentence. As a part of that
plea deal, the 1997 charge was dismissed because Jicalan Sanchez (aka Jicalan Lopez) was
“convicted in another cause.” Manny Barraza was his counsel of record at the 2003 plea.
Unfortunately for Alvarez, who is a resident alien, the federal government considers his
deferred adjudication to be a conviction for the purposes of removal. State v. Guerrero, 400
S.W.3d 576, 588 (Tex.Crim.App. 2013)(state based deferred adjudications are still considered
final convictions under federal immigration scheme). Consequently, Alvarez sought to undo his
earlier guilty plea.
PROCEDURAL SUMMARY
Alvarez filed his Application for Writ of Habeas Corpus on July 27, 2012. The
Application raised two issues. First, Alvarez contended that his plea counsel did not properly
advise him on the immigration aspects of the guilty plea, which we refer to as the Padilla
ground. His second argument contends that his plea counsel, Manny Barraza, had a conflict of
interest in that he represented two clients with divergent interests. We refer to this as the Cuyler
v. Sullivan2 or conflict of interest ground.
2
446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Under Cuyler, a defendant can establish a violation of his
Sixth Amendment right to the effective assistance of counsel if he can show “that an actual conflict of interest
adversely affected his lawyer’s performance.” 446 U.S. at 350, 100 S.Ct. at 1719.
4
The trial court held a hearing on the Application on December 17, 2012. Habeas counsel
offered an affidavit from Alvarez, the affidavit of his co-defendant Jicalan Sanchez (aka Jicalan
Lopez), and offered testimony from Alvarez’ wife, Anabel Alvarez.3 Manny Barraza did not
testify, in person or by affidavit.4
The trial court later granted the Application, vacating the 1997 guilty plea. The court
issued eight Findings of Fact and two Conclusions of Law. The findings germane to the Padilla
claim include:
Findings of Fact
. . .
6. Attorney Barraza did not advise Alvarez of the immigration consequences of
his guilty plea prior to June 9, 1997, the date Alvarez pled guilty. Specifically,
Alvarez was never advised that a plea of guilty to the offense of possession of
more than 4 but less than 200 grams would subject him to deportation or removal
from the United States.
Conclusions of Law
. . .
2. Applicant Alvarez was deprived of effective assistance by Attorney Barraza’s
failure to inform Alvarez of the immigration consequences of his guilty plea to
the cocaine possession charge.
The findings germane to Alvarez’ Cuyler v. Sullivan conflict of interest claim include
these:
Findings of Fact
. . .
4. Shortly after Alvarez’ arrest, the person then-known as Julian Jicalan Lopez
retained Attorney Manuel Barraza to represent both Daniel Alvarez and himself
3
Counsel represented that Daniel Alvarez was confined at an “immigration camp” as of the date of the hearing.
4
We take notice that attorney Manny Barraza was convicted on June 1, 2010 of two counts of wire fraud,
deprivation of honest services, making false statements, and he had been sentenced to five years in a federal prison.
See 75 TEX.B.J. 480-81 (June 2012). On April 23, 2012 he was disbarred. Id.
5
by paying Barraza $15,000.00 for his representation and $5,000.00 to represent
Alvarez. The terms of this agreement were that Barraza would seek to obtain a
probation sentence for Alvarez on the cocaine possession charge and secure a
dismissal for Julian Jicalan Lopez on the same charge.
. . .
7. The Court finds that Attorney Manuel Barraza labored under an actual conflict
of interest by representing both Alvarez and Sanchez in connection with the
pending cocaine possession charge.
8. The Court finds that Attorney Barraza’s dual representation of Alvarez and
Sanchez had an adverse effect on specific instances of counsel’s representation.
Under the heading “Conclusions of Law” appears a typewritten finding that “Applicant
Daniel Alvarez was deprived of effective assistance of counsel by reason of Attorney Manuel
Barraza’s dual representation of both Alvarez and Sanchez on the same cocaine possession
charge.” There is a handwritten mark, which appears to be a strike-out, through this Conclusion
of Law.
In response to a motion filed by the State, we issued an order directing the trial court to
clarify what Findings of Fact and Conclusions of Law he relied upon to grant habeas corpus
relief. In reply, the trial court issued a new set of findings on May 31, 2013 that are limited to
only those original findings germane to the Padilla claim. The trial judge did not include any of
his original findings, as set out above, which pertained to the Cuyler v. Sullivan conflict of
interest claim.
The State appeals and raises two issues. In Issue One, the State argues that Padilla
cannot be applied retroactively. In Issue Two, the State argues that even if the rule applied
retroactively, Alvarez failed to show any prejudice.
STANDARD OF REVIEW
As the applicant for the Writ of Habeas Corpus, Alvarez was obliged to prove his
allegations by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664
6
(Tex.Crim.App. 2006). In reviewing the trial court’s decision to grant or deny relief on the
Application, we review the facts in the light most favorable to the trial court’s ruling and uphold
it absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003).
Reviewing courts should afford almost total deference to a trial judge’s determination of the
historical facts supported by the record, especially when the fact findings are based on an
evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819 n.67. When
dealing with mixed questions of law and fact, we give the same level of deference if the
resolution of those questions turn on an evaluation of credibility and demeanor, and review de
novo those mixed questions of law and fact that do not depend upon credibility and demeanor.
Id. at 819.
The reviewing court should affirm as long as the decision is correct on any theory of law
applicable to the case. Ex parte Primrose, 950 S.W.2d 775, 778 (Tex.App.--Fort Worth 1997,
pet. ref’d); see, e.g., Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011)(stating that
appellate court will not disturb trial court’s evidentiary ruling if ruling is correct on any theory of
law applicable to ruling, even if trial court gave wrong reason for correct ruling); Mahaffey v.
State, 316 S.W.3d 633, 637 (Tex.Crim.App. 2010)(holding that State could permissibly make
new argument in support of trial court’s ruling for first time on appeal because “an appellate
court will uphold the trial court’s ruling if that ruling is ‘reasonably supported by the record and
is correct on any theory of law applicable to the case’”) quoting State v. Dixon, 206 S.W.3d 587,
590 (Tex.Crim.App. 2006).
PADILLA ISSUE
Alvarez asserted below that he was denied effective assistance of counsel because his
attorney failed to apprise him of the immigration implications of his decision to plead guilty.
7
The Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. The Sixth Amendment guarantees reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674 (1984);
Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). To prove his plea was
involuntary because of ineffective assistance, Alvarez must show (1) counsel’s representation/
advice fell below an objective standard and (2) this deficient performance prejudiced the defense
by causing him to give up his right to a trial. See Ex parte Morrow, 952 S.W.2d 530, 536
(Tex.Crim.App. 1997).
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland. Hernandez v. State, 726 S.W.2d 53, 56-57
(Tex.Crim.App. 1986). Under the Strickland test, an applicant must show that counsel’s
performance was “deficient,” and that the “deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712
(Tex.Crim.App. 2000).
In the context of Alvarez’ claim, the Supreme Court has held that the Sixth Amendment
requires a criminal defense attorney to inform his client of the risk of automatic deportation as a
result of his guilty plea. Padilla v. Kentucky, 559 U.S. 356, 368-69, 130 S. Ct. 1473, 1483,
L.Ed.2d 284 (2010); State v. Guerrero, 400 S.W.3d 576, 587 (Tex.Crim.App. 2013). The
Padilla decision issued on March 31, 2010. Padilla, 559 U.S. at 356, 130 S.Ct. at 1473. When
Alvarez’s application was originally heard by the trial court, it was an open question as to
whether Padilla applied retroactively to those cases where the plea was taken before Padilla was
handed down. A decision of this Court had held Padilla should be applied retroactively. Ex
8
parte De Los Reyes, 350 S.W.3d 723, 729 (Tex.App.--El Paso 2011), rev’d, 392 S.W.3d 675(Tex.Crim.App. 2013). But soon thereafter, the retroactivity issue was resolved against Alvarez,
both by the United States Supreme Court and the Texas Court of Criminal Appeals. Chaidez v.
United States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); Ex parte De Los Reyes,
392 S.W.3d 675, 679 (Tex.Crim.App. 2013).
The Texas Court of Criminal Appeals has further clarified that while normally an order of
deferred adjudication is not considered a final conviction for state law, it is for the purposes of
federal immigration law. State v. Guerrero, 400 S.W.3d at 587-88. For purposes of a Padilla
analysis, a final conviction occurs at the time a defendant pleaded guilty and was placed on
deferred adjudication. Id. Thus, if an Applicant made their plea before March 31, 2010 when
Padilla was handed down, the failure of trial counsel or the trial judge to inform a defendant of
the deportation consequences of the guilty plea does not entitle the defendant to habeas corpus
relief. Guerrero, 400 S.W.3d at 588.
In this case, it is undisputed that Alvarez’s guilty plea, and even his completed term of
deferred adjudication, occurred long before Padilla was decided. The trial court would have
abused its discretion in not applying pre-Padilla law. See Ex parte Sudhakar, 406 S.W.3d 699,
702 (Tex.App.--Houston [14th Dist.] 2013, pet. ref’d). Under that law, the Sixth Amendment
right to counsel does not extend to “collateral” consequences of a prosecution. Ex parte
Morrow, 952 S.W.2d at 536. Deportation is a collateral consequence of a prosecution.
Hernandez v. State, 986 S.W.2d 817, 821 (Tex.App.--Austin 1999, pet. ref’d), citing State v.
Jimenez, 987 S.W.2d 886, 888-89 (Tex.Crim.App. 1999). Consequently, Alvarez’ plea was not
deficient because of any failure of his trial counsel to warn him about the immigration
consequences of his plea. See Ex parte Sudhakar, 406 S.W.3d at 702.
9
Alvarez’ sole response to this seismic shift in the case law against him is to argue that the
State waived the point. He contends that by failing to obtain an explicit ruling from the trial
judge on the retroactivity issue, the State cannot raise it now. We disagree.
Generally to preserve error a the party must “let the trial judge know what he wants, why
he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a
time when the trial court is in a proper position to do something about it.” Lankston v. State, 827
S.W.2d 907, 908-09 (Tex.Crim.App. 1992); TEX.R.APP.P. 33.1. The record in this case is clear
that the State raised the question of retroactivity below. The State devoted fifteen pages of its
response to the Application outlining the retroactivity issue, including alerting the trial court that
the U.S. Supreme Court had accepted the petition for certiorari in Chaidez, and that the Texas
Court of Criminal Appeals had granted the petition for discretionary review in De Los Reyes. At
the hearing on the Application, the State restated its position that it did not believe that Padilla
should be applied retroactively, but conceded that the trial court might be bound by this Court’s
opinion in De Los Reyes. When the trial court granted the Application, it necessarily overruled
the State’s retroactivity arguments. We find no waiver on this record.
CONFLICT OF INTEREST ISSUE
In his brief, Alvarez appears to argue that the trial court’s ruling can alternatively be
upheld on his Cuyler v. Sullivan conflict of interest ground that was originally raised in his
Application, but not accepted by the trial court. Alvarez contends that he obtained sufficient
findings of fact to allow this Court to sustain the writ on that alternate ground. The State did not
favor us with a reply brief to respond to this contention.
While most ineffective assistance of counsel claims are resolved applying the Strickland
test, when the underlying failing of trial counsel involves a conflict of interest, a different
10
analysis applies. Conflict of interest claims for which no objection was timely made at the
original trial or plea are analyzed under Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64
L. Ed. 2d 333 (1980). Acosta v. State, 233 S.W.3d 349, 356 (Tex.Crim.App. 2007); James v.
State, 763 S.W.2d 776, 778-79 (Tex.Crim.App. 1989). The Cuyler analysis has two elements.
The applicant must demonstrate that (1) defense counsel was burdened by an actual conflict of
interest; and (2) the conflict had an adverse effect on specific instances of counsel’s
performance. Ex parte McFarland, 163 S.W.3d 743, 759 n.52 (Tex.Crim.App. 2005); Pina v.
State, 29 S.W.3d 315, 317 (Tex.App.--El Paso 2000, pet. ref’d).
Joint representation does not automatically create an actual conflict of interest. See
Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)(explaining that
joint representation is not per se ineffective assistance); James, 763 S.W.2d at 778 (same). An
actual conflict of interest exists when “one defendant stands to gain significantly by counsel
adducing probative evidence or advancing plausible arguments that are damaging to the cause of
a co-defendant whom counsel is also representing.” James, 763 S.W.2d at 779. However, the
failure to emphasize the culpability of one defendant over the other does not create an actual
conflict. Kegler v. State, 16 S.W.3d 908, 913 (Tex.App.--Houston [14th Dist.] 2000, pet. ref’d);
Howard v. State, 966 S.W.2d 821, 827 (Tex.App.--Austin 1998, pet. ref’d).
To meet the second Cuyler test--showing an adverse effect--an Applicant must
demonstrate that some plausible defense strategy or tactic might have been pursued, but was not,
because of the conflict of interest. Ramirez v. State, 13 S.W.3d 482, 487 (Tex.App.--Corpus
Christi 2000), pet. dism’d, improvidently granted, 67 S.W.3d 177 (Tex.Crim.App. 2001). If the
Applicant shows both elements, then prejudice is presumed. Strickland, 466 U.S. at 692, 104
S. Ct. 2052; Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App. 1999).
11
Our first hurdle in analyzing this claim is that the trial court, while agreeing with some of
the predicates of the argument, rejected its conclusion. The trial judge originally made findings
that Manny Barraza labored under an actual conflict of interest that had “an adverse effect on
specific instances of counsel’s representation.” But the trial court affirmatively struck through a
proposed finding that the conflict denied Alvarez effective assistance of counsel. In response to
this Court’s order, the trial court clearly indicated the conflict of interest findings did not inform
his decision to grant the writ.5
Even if the earlier findings of fact were meant to survive the newer issued findings, we
would be inclined to view them as insufficient to sustain a Cuyler type challenge. To be sure,
there is some evidence of the existence of a true conflict of interest presented on the record. The
allegation that attorney Manny Barraza accepted the representation of two persons with the intent
to plead one to the detriment of the other is precisely the type of conflict alluded in Dukes v.
Warden, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45 (1972). In Dukes, one of several co-
defendants represented by the same firm of attorneys complained that his guilty plea was tainted
by a conflict of interest. He had learned that his attorney when pleading out the co-defendants
had tried to gain leniency for the other defendants by suggesting that he was the more culpable
defendant. Id., 406 U.S. at 254, 92 S.Ct. at 1554. The court rejected the claim, but specifically
referenced a finding of the lower court that there was no evidence that the attorney “induced
[Dukes] to plead guilty in furtherance of a plan to obtain more favorable consideration from the
court for other clients.” Id., 406 U.S. at 257, 92 S.Ct. at 1554; James, 763 S.W.2d at 784
5
We note that the trial judge signed the order with the new Findings of Fact and Conclusions of Law on May 31,
2013 which was after the United States Supreme Court decided Chaidez and the Texas Court of Criminal Appeals
decided De Los Reyes, ending the retroactivity debate in Texas, and thus effectively undermining the only rationale
for his decision. Had the trial court had any belief that the conflict of interest issue had merit, we would have
thought he would have included it in his findings at that time.
12
(Clinton, J., concurring)(noting this distinction drawn in Dukes). There is, however, some
evidence on this record of a plan to favor one defendant over the other.
But in looking at this record, we are not directed to any evidence supporting the second
Cuylar predicate that the conflict had an adverse effect on specific instances of attorney
Barraza’s conduct. “An appellant must identify specific instances in the record that reflect a
choice that counsel made between possible alternative courses of action, such as ‘eliciting (or
failing to elicit) evidence helpful to one [interest] but harmful to the other.’” Gaston v. State,
136 S.W.3d 315, 318 (Tex.App.--Houston [1st Dist.] 2004, pet. struck)(en banc), quoting
Ramirez v. State, 13 S.W.3d 482, 488 (Tex.App.--Corpus Christi 2000, pet. dism’d). The trial
court’s original findings contain the relevant language from Cuyler, but offer no clue as to what
specific instances of conduct were adversely affected. See Ex parte Flores, 387 S.W.3d 626, 634
(Tex.Crim.App. 2012)(a trial court’s findings of fact and conclusions of law should do more than
more than restate the parties’ arguments). The only conduct of attorney Barraza reflected by the
evidence in the record was the plea bargain itself. There is no evidence of how the terms of the
plea was reached, such the negotiations behind the plea. There is no evidence that he took any
specific action to use the terms of Alvarez’ plea to gain some particular concession for Jicalan
Sanchez (aka Jicalan Lopez). There is no evidence of the investigation that Barraza may or may
not have undertaken to develop a defense, particularly as to the cocaine found in his house and
on his person. We acknowledge that the indictment and plea occurred almost fifteen years
before the Application was filed, but Alvarez still bore the burden to present some evidence of
each element of his claims.6
6
We note that the Texas Court of Criminal Appeals has recently referenced the consequence of the potential loss of
evidence when habeas applications involve pleas and convictions occurring many years in the past. Ex parte Smith,
444 S.W.3d 661, 666 (Tex.Crim.App. 2014). The court has now specifically authorized habeas courts to sua sponte
raise the issue of laches, looking in part to the prejudice occasioned by reconstructing events long past. Ex parte
13
In the cases where a conflict of interest was found, the courts could identify in the record
specific instances of attorney conduct affected by the conflict. Holloway, 435 U.S. at 480, 98
S.Ct. at 1176 (counsel unable to ask one co-defendant questions on the stand due to confidential
information imparted from co-defendant); Ex parte Acosta, 672 S.W.2d 470, 473-74
(Tex.Crim.App. 1984)(decision to have defendant testify); Ex parte McCormick, 645 S.W.2d
801, 804 (Tex.Crim.App. 1983)(decision to oppose separate trials and use of confessions); Ex
parte Parham, 611 S.W.2d 103, 105 (Tex.Crim.App. 1981)(advice given to one defendant about
testifying); James, 763 S.W.2d at 778 (“In each of these cases the potential for conflict inherent
in multiple representation became an actual conflict due to the inculpatory or exculpatory nature
of testimony or the strategy adopted by defense counsel in the particular case. That is not
reflected in the case before us today.”). We simply find none of these types of specific actions
developed in the record that would support the second Cuyler finding, even under our highly
deferential standard of review.
And while we recognize that a conflict of interest may implicate not only what an
attorney does, but what he fails to do, Holloway, 435 U.S. at 489-90, 98 S.Ct. at 1181, we do not
find any specifics of Barraza’s conduct, other than attending a plea hearing in this record.
Nothing suggests there was any other viable defense strategy that he could have pursued, or
action that he could have taken on Alvarez’ behalf.7
Bowman, NO. PD-1375-14, ___ S.W.3d ___, 2014 WL 6464635 (Tex.Crim.App. Nov. 19, 2014); Ex parte Smith,
444 S.W.3d at 667.
7
His habeas counsel argued at the hearing that Alvarez could have placed all the blame on Jicalan Sanchez (aka
Jicalan Lopez) for the cocaine in the car, or his wife for the cocaine in his house, but habeas counsel’s argument is
not evidence. Guerrero, 400 S.W.3d at 586 (habeas counsel’s statements not evidence and would not support
findings).
14
We sustain Issue One and find Issue Two to be moot. The trial court’s judgment is
reversed and judgment is rendered denying the Application for Writ of Habeas Corpus.
TEX.R.APP.P. 43.2(c).
January 28, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
15
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-13-00025-CR
§
Appeal from
EX PARTE: DANIEL ALVAREZ §
384th District Court
§
of El Paso County, Texas
§
(TC # 960D10169-384-1)
§
JUDGMENT
The Court has considered this cause on the record and concludes that there was error in
the judgment. We therefore reverse the judgment of the court below and render judgment
denying the Application for Writ of Habeas Corpus, in accordance with the opinion of this Court,
and that this decision be certified below for observance.
IT IS SO ORDERED THIS 28TH DAY OF JANUARY, 2015.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.