                                                                                            ACCEPTED
                                                                                        12-14-00107-cr
                                                                           TWELFTH COURT OF APPEALS
                                                                                         TYLER, TEXAS
                                                                                   1/5/2015 3:31:43 PM
                                                                                          CATHY LUSK
                                                                                                CLERK

                                No. 12-14-00107-CR

                 IN THE COURT OF APPEALS FOR THE        FILED IN
                                                 12th COURT OF APPEALS
             12TH JUDICIAL DISTRICT OF TEXAS AT TYLER TYLER, TEXAS
                                                               1/5/2015 3:31:43 PM
                                                                   CATHY S. LUSK
                                JULIO SAUCEDO,                         Clerk
                                  APPELLANT

                                        v.

                            THE STATE OF TEXAS,
                                 APPELLEE


__________________________________________________________________

                        APPELLEE’S BRIEF
__________________________________________________________________


               FROM THE 145H JUDICIAL DISTRICT COURT
                   NACOGDOCHES COUNTY, TEXAS
              THE HONORABLE CAMPBELL COX, PRESIDING

                     TRIAL CAUSE NUMBER F10816-2002


                                             Respectfully submitted,


                                             NICOLE D LOSTRACCO
                                             District Attorney
Oral argument is requested,                  Nacogdoches County, Texas
but only if Appellant is also                State Bar No. 00792906
requesting oral argument.                    101 West Main Street
                                             Nacogdoches, Texas 75961
                                             Phone: (936) 560-7766
                                             FAX: (936) 560-6036
                         IDENTITY OF PARTIES & COUNSEL

Appellant ................................................................. JULIO SAUCEDO

                                                                Alex Luna
                                                                TRIAL COUNSEL

                                                                Charles Banker
                                                                APPELLATE COUNSEL


Appellee ................................................................... THE STATE OF TEXAS

                                                                Nicole D LoStracco
                                                                TRIAL AND APPELLATE
                                                                COUNSEL




                                                                                                  ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES.................................................................................... iv

STATEMENT OF THE CASE ..................................................................................2

ISSUE PRESENTED .................................................................................................3

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF THE STATE’S ARGUMENT .......................................................4

STATE’S RESPONSE TO APPELLANT’S ARGUMENT .....................................5

         A. STANDARD OF REVIEW ........................................................................5

         B. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE .........5

PRAYER ....................................................................................................................6

CERTIFICATE OF SERVICE ..................................................................................7

CERTIFICATE OF COMPLIANCE ......................................................................... 8




                                                                                                                          iii
                            INDEX OF AUTHORITIES


STATE CASES                                                                        PAGE

Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) ..........................5




                                                                                          iv
                              No. 12-14-00107-CR

                IN THE COURT OF APPEALS FOR THE
            12TH JUDICIAL DISTRICT OF TEXAS AT TYLER


                               JULIO SAUCEDO,
                                 APPELLANT

                                         v.

                           THE STATE OF TEXAS,
                                APPELLEE


__________________________________________________________________

                        APPELLEE’S BRIEF
__________________________________________________________________



TO THE HONORABLE COURT OF APPEALS:



      COMES NOW, Appellee, the State of Texas, by and through the

undersigned Assistant District Attorney, and respectfully submits this brief in

response to Appellant, Julio Saucedo, pursuant to TEX. R. APP. P. 38, urging the

Court to overrule Appellant’s alleged points of error and affirm the judgment and

sentence of the trial court in the above-numbered cause.




                                                                               1
                         STATEMENT OF THE CASE

      On December 13, 2002, Julio Saucedo, was indicted for the second degree

felony offense of Possession of Marijuana, committed on or about November 18,

2002. (CR page 6) Appellant entered his plea of guilty to the lesser included

offense of third degree felony Possession of Marijuana on January 31, 2003. (CR

page 7-15)    Appellant received 8 years deferred probation, a fine of $2500,

restitution in the amount of $140 and 400 hours of Community Service. (Id.) On

May 10, 2007, counsel for Appellant filed a Motion for Early Termination of

Deferred Adjudication Probation. (CR pages 23-25) On July 5, 2007, the trial court

granted the request and discharged Appellant from deferred and dismissed the

indictment. (CR page 26) On March 18, 2013, Appellant filed an Application for

Writ of Habeas Corpus. (CR pages 27-46) The writ argued ineffective assistance of

counsel and an involuntary plea based on Appellant’s immigration issues. (CR

page 29) On March 21, 2003, the trial court determined that the issues needed to be

resolved (CR page 47) and ordered Appellant’s trial counsel, Alex Luna, to

provide the trial court with an affidavit addressing the advice given to Appellant

concerning deportation with regards to his plea. (CR page 48) On May 2, 2013,

The trial court denied the Application for Writ based upon the affidavit supplied by

Mr. Luna. (CR pages 50-55) On May 13, 2013, the trial court received notice from

the Texas Court of Criminal Appeals that the Writ was being returned to the trial


                                                                                  2
court for lack of jurisdiction. (CR page 56) On April 2, 2014, Appellant filed a

Motion to Reconsider the Order Denying the Writ. (CR page 60) On April 4, 2014,

the trial court issued an order again Denying the Application for Writ. (CR page

76) On April 16, 2014, Appellant filed a Notice of Appeal. (CR pages 82-83)



                  ISSUE #1 PRESENTED BY APPELLANT

      Did Appellant’s trial counsel fail to advise him of the consequences of his

plea in regards to deportation, which rendered his plea involuntary?


                  ISSUE #2 PRESENTED BY APPELLANT

      Can Padilla be applied retroactively?


                  ISSUE #3 PRESENTED BY APPELLANT

      Was Appellant affirmatively misled by his trial counsel?



                           STATEMENT OF FACTS

      The State is unable to provide nor oppose most of the Statement of Facts as

alleged by Appellant. No trial was ever had in the matter, so there is no reporters

record from which to glean the facts behind the decision by law enforcement to

charge Appellant with Possession of Marijuana. The sole account of what

happened belongs to the wife of Appellant and is found in her affidavit. It must be


                                                                                  3
left to this honorable Court to determine the credibility of her allegations. Those

facts which can be relied upon and which are backed up with documentary proof

are those already presented in the State’s Statement of the Case. The accounts of

what took place during the discussions between Appellant’s trial counsel, Alex

Luna, and Appellant are completely contradictory. Appellant, his son-in-law and

his wife, argue that immigration consequences were never discussed. Trial counsel,

Alex Luna, via his affidavit, insists that it was discussed and Appellant chose to

risk deportation over a prison sentence.



                 SUMMARY OF THE STATE’S ARGUMENT

      Appellant presented three issues in his brief. However, it is the State’s

contention that none of the issues presented were actually appropriate. The issue

that should have been presented is whether or not the trial court abused its

discretion in denying the writ.

      In reviewing the facts in the light most favorable to the trial court’s decision,

it is clear that the trial court did not abuse its discretion, and therefore, the ruling

should be upheld.




                                                                                      4
           STATE’S RESPONSE TO APPELLANT’S ARGUMENT



   A. Abuse of Discretion Standard of Review

   When assessing the appropriateness of a trial court’s denial of habeas corpus

relief, an appellate court utilizes the abuse of discretion standard of review. Ex

parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) As such, the facts must

be reviewed in the light most favorable to the ruling of the trial court. Id. The

ruling is to be upheld absent a finding of an abuse of discretion. Id. Almost total

deference must be given to the trial courts determination. Id. Furthermore, the trial

court may chose to accept or reject the testimony of any witness in a matter. Id at

819.



   B. Application of the Law to the Facts of this Case

   In this matter, the trial court made its decision to deny the writ filed by

Appellant based upon an affidavit supplied by trial counsel, Alex Luna. In his

affidavit, Mr. Luna states that he fully discussed the case with Appellant, along

with the fact that the plea would result in Appellant being deported and refused re-

entry into the United States. (CR page 53-54) While Appellant had supplied an

affidavit of his own, contradicting Mr. Luna’s account in his application, it is


                                                                                    5
apparent from reading the Findings of Fact and Conclusions of Law made by the

trial court (CR page 77) that the trial court chose to believe Mr. Luna’s affidavit

and discounted the affidavits of Appellant and his family.

      The actions taken by the trial court were in no way improper. As such, there

should be no finding that the trial court abused its discretion when it denied

Appellants request for habeas relief.


                                        PRAYER

      WHEREFORE, PREMISES CONSIDERED, the undersigned counsel for

the State of Texas respectfully requests and prays that this Honorable Court

overrule Appellant’s Points of Error and affirm the judgment sentence of the 145th

District Court, Nacogdoches County, Texas, in this case.

                                              Respectfully submitted,

                                              NICOLE D LOSTRACCO
                                              District Attorney
                                              Nacogdoches County, Texas




                                              State Bar No. 00792906
                                              101 West Main Street, Ste. 250
                                              Nacogdoches, TX 75961
                                              Phone: (936) 560-7766
                                              FAX: (936) 560-6036


                                                                                      6
                         CERTIFICATE OF SERVICE


      A true copy of the State’s brief has been served on counsel for Appellant,

Dean Watts, on this, the 5th day of January, 2015.




                                            Nicole D LoStracco




                                                                              7
                     CERTIFICATE OF COMPLIANCE


      Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this

brief contains 993 words—excluding the caption, identity of parties, table of

contents, index of authorities, signature, proof of service, certification, and

certificate of compliance.   This is a computer-generated document created in

Microsoft Word, using 14-point typeface for all text. In making this certificate of

compliance, I am relying on the word count provided by the software used to

prepare the document.




                                            Nicole D LoStracco




                                                                                 8
