                                                                               PD-0877-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                            Transmitted 8/20/2015 10:37:36 AM
                                                               Accepted 8/20/2015 2:24:53 PM
                              No. PD-0877-15                                   ABEL ACOSTA
                                                                                       CLERK




                                  In the

                         Court of Criminal Appeals
                                 of Texas




Jose Ricky Espinoza                )(          Petition for Discretionary


V.                                 )(          Review from the Court of


The State of Texas                 )(          Appeals, Second District of

                                   )(          Texas, No. 02-15-00074-CR




            August 20, 2015




                                        TODD Greenwood
                                        SBN 24048111
                                        Attorney for Appellant
                                        900 Eighth Street
                                        Suite 716
                                        Wichita Falls, TX 76301
                                        toddgreenwood@lawver.coni
                        Identity of Parties and Counsel



Parties


Jose Ricky Espinoza - Appellant

The State of Texas


Counsel for Appellee


Matt Hall
Trial Counsel
Parker County Assistant County Attorney
118 West Columbia Street
Weatherford, TX

Natalie Bamett
Appellate counsel
Parker County Assistant County Attorney
118 W. Columbia St.
Weatherford, TX 76086

Counsel for Appellant


Jose Ricky Espinoza
Pro se at Trial


Todd Greenwood
Counsel on Appeal and for Discretionary Review
900 Eighth Street
Suite 716
Wichita Falls, Texas, 76301




                                       11
                              Table of Contents


Identity of Parties and Counsel                            i

Table of Contents                                     ii


Index of Authorities                                  iv


Statement of the Case                                  1


Statement of the Procedural History                       1

Statement of the Case                                 2


Ground for Review                                      3


   WHETHER PAD/LLA IS RENDERED MEANINGLESS BY 7.5-
   POINT FONT WAIVER OF COUNSEL BOILERPLATE BURIED
   WITHIN MULTIPLE FORMS WHICH STATES A PLEA MAY
   RESULT IN "DEPORTATION, EXCLUSION FROM ADMISSION
   INTO THE U.S. OR DENIAL OF NATURALIZATION."


Argument                                          >    3

Conclusion and Prayer for Relief                      12

Certificate of Compliance                             12

Certificate of Mailing and Service                    13

Appendices                                            14




                                      111
                            Index of AuxHORixms

Cases:


Padilla v. Kentucky, 559 U.S. 356, 373 (2010)                      3, 4, 5

Exparte Garcia, 353 SW 3d 785, 789 (Tex. Crim. App. 2011)            8, 9

State V. Guerrero, 400 S.W.3d 576, 588-89 (Tex. Crim. App. 2013)     8, 9




                                       IV
                                             STATEMENT OF THE CASE


       Appellant, then a 19-years old and neither a permanent resident nor citizen

(hereinafter "undocumented") was arrested for possession of K-2.' He was taken

before Parker County Court at Law No. 1 for open docket call. He was presented

with a stack of forms buried within which was a warning of potential immigration

and naturalization consequences set forth as a 13'^ bullet on the 19'^ line of a page

crowded with text and which appeared as follows:



                 "[I understand] • that if 1am noi a U .S. citizen, a plea of guilty or no!o contendre may result in deportation exclusion from
                 admission into the U .S., or denial of naturalization."'




       A similar warning was couched near the bottom of the State's omnibus

"Waiver of Jury Trial, Waiver of Ten Days to Prepare for Trial, Court's

Admonishment, Waiver of Presentence Report and Plea Agreement," a one-page

form similarly crowded with waiver language employing seven-point-five font:



                 "Defendant iindei'stands tliat if lie/she is not a U.S. Citizen, a plea of guilty or nolo contendre may
                 result in deportation, exclusion from admission to tlieU .S..or denial of naturalization."''




       No counsel was appointed to advise Appellant of potential deportation and

naturalization consequences which the warning and waiver purported to address.


' R.R. 2: 8-10
^R.R. 2: r4-15; R.R. 3: Ex. 1-2.
'Id.
This role, if performed at all, was taken on by judge and prosecutor. Neither was

any record made of admonitions given Appellant nor representations by the State.



                  STATEMENT OF PROCEDURAL HISTORY


       Appellant was convicted and placed on community supervision for one

count of Possession of a Controlled Substance Penalty Group 2-A Less Than or

Equal to Two Ounces on October 28, 2013."^ A Motion to Adjudicate was

subsequently filed on June 2, 2014 and amended on August 15, 2014."^ Appellant
filed a writ of habeas corpus challenging the constitutionality of the conviction on

December 8, 2014.^ The trial court denied the writ on January 19, 2015.^ The
motion to adjudicate was dismissed on Februaryl9, 2015.^ This appeal was

subsequently taken on February 12, 2015. The appellate court declined briefing

and affirmed the trial court on April 30, 2015.^ Appellant subsequently filed

motions for extension of time to seek rehearing and for rehearing which were

granted on June 9, 2015 and denied on June 18, respectively. Appellant's motion

to extend time to file this application for discretionary review was granted on July

18,2015.



^ C.R. Vol. 1 at 9.
^Id. at 17.
®Id. at 33.
^ Id. at 55.
Q

  Clerk's Supplement at 4,6.
^Appendix A.
                              GROUND FOR REVIEW


   WHETHER PADILLA IS RENDERED MEANINGLESS BY 7.5-POINT
FONT WAIVER OF COUNSEL BOILERPLATE BURIED WITHIN
MULTIPLE FORMS WHICH STATES A PLEA MAY RESULT IN
"DEPORTATION, EXCLUSION FROM ADMISSION INTO THE U.S. OR
DENIAL OF NATURALIZATION."



                                    ARGUMENT


      In Padilla v. Kentucky the United States Supreme Court ruled that ''counsel

must inform her client whether his plea carries a risk ofdeportation."^® As a result

defense advocates nationwide now routinely research immigration law and consult

with immigration specialists to ensure their clients are advised of specific risks of

deportation and impacts upon naturalization which may accrue from a specific

charge and its disposition.




      Counsel must be Present to Advise the Undocumented Accused.


      The Padilla court sensibly recognized that the consequence of a particular

disposition of a case could have adverse effects to the non-citizen accused which,

depending upon the case, might far exceed any court-ordered punishment. It is

hard to conceive of a case which more aptly illustrates this point than that at bar.

Appellant was arrested for possession of a substance which had only recently been




  559 U.S. 356, 373 (2010) (emphasis added).
                                               3
illegalized in Texas.He possessed that substance in an amount comparable to

that for the Class B misdemeanor for possession of marijuana, a charge which

would have entailed de minimus considerations with regard to immigration

consequences.^^

       It is probable no one present in the courtroom who was connected with

Appellant's case knew a conviction for less than two ounces of K-2 would be

treated any differently by the federal immigration law than a comparable amount

of marijuana, let alone that it could result in deportation or bar naturalization.

Even if the prosecutor or judge knew as much, it may not have been high on their

list of priorities during a routinely hectic docket call. After all, looking out for the

interests of the accused is the role of the defense advocate.


       The Padilla court went to some length to make clear that counsel must be

present to fulfill a function which transcends imparting specific information to the

accused.That is ... providing counsel. Otherwise, presumably the plastic robot

in Elysium that counsels Matt Damon would be sufficient to satisfy the Sixth

Amendment and considerations of Due Process. More, the court made clear that

the mere fact of the presence of a defense advocate may affect disposition of the




  C.R. 5-6.
''Id.
'^559 U.S. at 373.
case in a manner which could avoid deportation or naturalization consequences/"^

       Nonetheless, in the case at bar the trial court proceeded on the assumption

that a two occurrences of bulletized phrase in 7.5-point font boilerplate buried in a

stack of forms which was hardly legible even if one knew to look for it somehow

adequately advised Appellant of the potential consequences of entering into a

plea." The appellate court has gone to great length in its opinion to express its

agreement. The stuffing was in the turkey, however buried or hard to read.

       Except it was not. Even had this language had been in 48-point bold Comic

Sans MS it would have neither taken account of the specific charge Appellant

faced nor the specific potential consequences which might have accrued from a

particular disposition. Moreover, whatever admonition the trial court judge may

have provided to Appellant cannot be verified given no record was made of the

hearing. It is not enough to parrot the language that deportation, exclusion or

frustration ofnaturalization may be the result of a guilty plea.^^ This is patently

not providing counsel to the criminal accused.



       Waiver of Counsel in a Padilla Case is Different.

       Padilla makes clear that the undocumented criminal accused is distinct from




''Id.
   Appendix B.
^^559 U.S. at 373.
the United States citizen who faces criminal charges due to the potential

consequences resulting from the disposition of the case. It then follows that trial

courts bear the responsibility to ensure that the indigent undocumented criminal

accused receives access to counsel and that the appointed attorney provides

counsel to his client.


       If counsel is to be waived - and it seems doubtful that Padilla contemplates

waiver of counsel given the nature of the particular risks in these cases that cry out

for counsel - then surely that waiver must be extraordinary in its rendition. If the

court is to fulfill the role of the defense advocate envisioned by Padilla then the

record should reflect that the accused was advised of the specific consequences of

the possible dispositions of the particular charge he faced.

       In this case the judge claimed at the writ hearing that he thoroughly

admonished Appellant regarding his waiver of counsel." No record was made to

demonstrate that. However, the judge's reiteration at the writ hearing of the nature

of admonitions given at the time the plea was entered demonstrate that he did not

provide counsel which took into account the specific facts of the charges faced by

the accused, the specific potential consequences carried by such a charge and the

individual context of the accused's immigration status.

       Nothing less could possibly satisfy the mandate of Padilla. A


  R.R. 2: 10.
constitutionally-sufficient waiver form would presumably require drafting in

considerable detail, presumably by the prosecutor, on a case-by-case basis and no

doubt work a considerable additional burden to the court with regard to

considerations of judicial efficiency.

         Again, the undocumented indigent criminal accused is to be appointed

counsel regarding the potential immigration and naturalization consequences of

entering into a plea. It follows from the holding in Padilla. It is just common

sense.




         The Bases of Disposition by the Appellate Court Avoid the
         Constitutional Issues Present in the Writ.



         First, sworn pleadings presumably need only be supplemented with live

testimony when such testimony would establish some fact upon which the writ

relies. The holding in Ex parte Garcia makes clear this proposition in its
                                                         1 c

discussion of the cases upon which the opinion relies.         In the instant case the

warning and waiver employed by the trial court is on its face invalid. No

conceivable indigent criminal defendant who potentially faces immigration and/or

naturalization consequences as a result of a particular disposition in Parker County

Court at Law No. 1 can be reasonably said to have received counsel with regard to



  353 SW 3d 785,789 (Tex. Crim. App. 2011).
                                              7
those consequences.

       Appellant's status as citizen or non-citizen resident is a matter of public

record that does not require his testimony to establish and can readily be verified.

The court became aware of it at the time of his plea. The trial court judge's

purported thorough admonishment of Appellant of the fact that a plea could result

in immigration consequences itself demonstrates this matter was before the court."

      More significantly, had Appellant taken the stand at the writ hearing the

record of that testimony could potentially have been used against him in future

court proceedings whether criminal or civil, state or federal, pertaining to the

underlying charge or a prospective immigration law matter. A requirement that

similarly situated criminal accused do so would seem to be a clear disincentive to

the assertion of their right to counsel which would undermine Padilla and

generally discourage the assertion of fundamental rights.

      Further, both Appellant's writ and motion for rehearing were sworn, as

required by law. Sworn pleadings have long been sufficient to establish their

contents for the purpose of hearings on writs of habeas corpus, to include in
                         on

Padilla writ hearings.        Consequently, this Court should reject as unconstitutional

the interpretation the opinion urges of Ex Parte Garcia that live testimony must be

had in lieu of sworn testimony regardless of potential consequences to petitioners

'^R.R.2:10.
  State V. Guerrero, 400 S.W.3d 576, 588-89 (Tex. Crim. App. 2013).
                                              8
such as criminal and/or civil penalties or liability.
                                                                                        O 1

        Second, the appellate court misconstrued the holding in State v. Guerrero.

It is true this Court observed in that case that the petitioner's undocumented status

made him subject to deportation regardless of the outcome of his criminal case.''

However, this Court's holding in that case clearly turned on fact that Guerrero had

been convicted some years prior and Padilla did not apply retroactively.

        Even were retroactivity not at issue, the lack of a legal basis to be present in

the United States does not necessarily subject an individual to deportation or bar

naturalization. This is was true even before the passage of the executive orders of

2014-15 specifically addressing these issues. The Padilla guarantee to counsel

cannot be made to depend upon the particulars of immigration status at the time of

the adjudication. State criminal courts are not suited to this analysis particularly

given those particulars are a moving target.

        Third, Appellant cannot very well be penalized for not invoking law

supporting his position which is specific to the issue of his constitutional right to

counsel regarding immigration consequences and the sufficiency of a waiver of

counsel. The paucity of black-letter law in this area is testament to the fact that

there is a built-in disincentive to the undocumented criminal accused to assert her




  400 S.W.3d at 588-89.
''Id.
  Id. at 588.
or his rights. For example, as where appellate courts require the accused to take

the stand to establish undocumented status, exposing themselves to unknown

consequences, merely to assert their right to counsel. This lack of clear guidance

also underscores the need for this Court to dispose of this matter on its

constitutional merits rather than some procedural basis.

      Finally, the inadequate nature of the warning and waiver regarding potential

immigration consequences in this case is manifest. The appellate court devotes

two pages of its opinion setting out the particulars ofthe waiver.^"^ This waiver
was a separate page in the stack of documents Appellant was presented with and

distinct from the warning regarding immigration and naturalization consequences.

      Both are effectively illegible. Both are in 7.5-point font and couched in and

among language on other matters regarding waiver of rights and the entry of the

plea. The only thing their appearance clearly demonstrates is that Parker County

Court No. 1 and/or the Office of the County Attorney are either attempting to

economize on paper by drafting constitutional waivers in 7.5-point font language

and cramming it all on a single page and/or they are not particularly in having them

legible. Again, these forms were presented to Appellant in the context of a plea

hearing at which no record was made.

      Additionally, the appellate court's treatment of the waiver of counsel form is


  Appendix A at 5-7.
                                          10
a red herring. The problem is not that Appellant was not advised that waiving

counsel generally carried with it risk but those aspects of that risk specific to

immigration and naturaUzation. The opinion's two-page treatment of the waiver

addresses everything but what mattered; the single line of seven-point font that

stated:

                "Defendant understands that if he/she is not a U.S. Citizen, a plea of guilty or nolo contendre may
                result in deportation, exclusion from admission to the U.S., ordenial ofnaturalization.""'^




                                            CONCLUSION AND PRAYER


          This case has profound implications both for the future of this young man

and his family and the rights to counsel and due process of a class of persons living

in the United States who are too often treated by our formal institutions much as

African Americans were in the 1830s. The waiver of counsel and warning of

immigration and naturalization consequences employed by the trial court in this

case are an affront to the principles that constitutional rights must be freely,

voluntarily and knowingly waived and that the criminal accused must be

counselled as to deportation and naturalization consequences. Consequently, this

case should not be disposed of on some procedural basis. Rather this Court should

decide this matter squarely on its constitutional bases. For these reasons Appellant

asks that his application be granted, allowing briefing and oral argument so that



^^Id.
                                                                     11
this honorable Court may provide clear guidance to the courts and practitioners.

                                        Respectfully submitted,

                                        /s/ Todd Greenwood
                                        Todd Greenwood
                                        Attorney for Appellant
                                        State Bar No. 24048111
                                        900 Eighth Street
                                        Suite 716
                                        Wichita Falls, Texas 76301
                                        Tel./Fax: (940) 689-0707


                       CERTIFICATE OF COMPLIANCE


      Pursuant to Tex. R. App. P. 9.4(i), the undersigned certifies that this brief

complies with the type-volume limitations.


1.    Exclusive of the exempted portions, this brief contains 2, 409 words. I am

relying on the word count function of Microsoft Word.

2.    This brief has been prepared in proportionately spaced typeface using

Microsoft Word in Times New Roman, 14 pt. font except for footnotes which are

in 12 pt. font and the cover, table of contents, and index of authorities which are in

14 pt. Times New Roman.

3.    If the Court requests, the undersigned will provide a print version of the

brief and/or copy of the word or line printout.

4.    The undersigned understands a material misrepresentation in completing this

certificate, or circumvention, of the type-volume limits, may result in the Court's
                                          12
striking the brief and imposing sanctions against the person signing the brief.



                                       Respectfully submitted,

                                       /s/ Todd Greenwood
                                       Todd Greenwood




                CERTIFICATE OF MAILING AND SERVICE


      On the 19th day of August 2015, a copy of the foregoing document was

served upon opposing counsel, Natalie Bamett at the Parker County Attorney's

Office; 118 W. Columbia St.; Weatherford, TX 76086 as well as on the State

Prosecuting Attorney at P.O. Box 13046; Capitol Station; Austin, Texas 78711.

                                              /s/ Todd Greenwood
                                              Todd Greenwood




                                         13
Exhibit A
                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                    FORT WORTH


                                NO. 02-15-00074-CR


Ex parte Angel Ricky Espinoza a/k/a        §     From County Court at Law No. 1
Jose Ricky Angel Espinoza
                                           §    of Parker County (CIV-14-0999)

                                           §    April 30. 2015

                                           §    Opinion by Chief Justice Livingston

                                           §     (nfp)

                                    JUDGMENT


      This court has considered the record on appeal in this case and holds that

there was no error in the trial court's order. It is ordered that the order of the trial

court is affirmed.



                                       SECOND DISTRICT COURT OF APPEALS




                                       By fs/ Terrie Livingston
                                          Chief Justice Terrie Livingston
                             COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                       FORT WORTH


                                  NO. 02-15-00074-CR



EX PARTE ANGEL RICKY
ESPINOZA A/K/A JOSE RICKY
ANGEL ESPINOZA




            FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
                            TRIAL COURT NO. CIV-14-0999




                            MEMORANDUM OPINION'




          Angel Ricky Espinoza a/k/a Jose Ricky Angel Espinoza appeals from a

trial court order denying his pretrial application for writ of habeas corpus.^ We
affirm.




          'See Tex. R. App. P. 47.4.

          ^We note that the trial court clerk has assigned this application a separate,
civil cause number even though this is an application under section 11.072 of the
code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.072, § 4(b) (West
Supp. 2014) ("At the time the application is filed, the clerk of the court shall
assign the case a file number ancillary to that of the judgment of conviction or
      As part of a plea bargain, appellant pled guilty to misdemeanor possession

of a controlled substance. The trial court followed the agreed-upon punishment

and assessed appellant's sentence at 180 days' confinement, probated for one

year. After the State filed a motion to revoke appellant's community supervision,

he filed this application for writ of habeas corpus, alleging that the written waiver

of counsel he signed during the plea bargaining process was ineffective because

he was not first admonished of immigration consequences specific to the offense

in accordance with the reasoning of Padilla.^ Padilla v. Kentucky, 559 U.S. 356,
373-74, 130 S. Ct. 1473, 1486-87 (2010). Appellant argued at the hearing on

the application that because he is not a United States citizen, Padilla required the

trial court to appoint counsel to advise him of the potential immigration




order being challenged.").    Accordingly, we have assigned a criminal cause
number to this case.


      ^Appellant argued in his application.
            The United States Supreme Court has held that "counsel must
      inform her client whether his plea carries a risk of deportation" in
      case[s] in which the criminal accused is not a citizen of the United
      States and therefore potentially subject to deportation as a result of
      disposition of the criminal charge by the court. The Padilla court in
      no way indicated neither does it appear colorably arguable the court
      intended to imply that a waiver is sufficient to meet the requirements
      of the Constitution where informs the criminal accused that a plea
      may or will carry the risk of deportation. Additionally, the waiver
      utilized in this case, besides being in eight or nine point font, was not
      specific to immigration consequences which might result from the
      plea. In fact, it appears that such consequences are mentioned
      nowhere in the waiver. [Citation omitted.]
consequences of the plea in order for his waiver of counsel to be knowing,

intelligent, and voluntary.

      After a hearing, the trial court denied appellant's application.   In its order

denying relief, the trial court found that the waiver of counsel that appellant

signed in connection with the plea bargain "required [him] to understand that if he

. . . is not a U.S. Citizen, a ple[a] of guilty or nolo contendere may result in

deportation, exclusion from admission [to the] U.S., or denial of naturalization,"

and. that before accepting appellant's plea, the trial court "ascertained that

[appellant] had been admonished of his rights, and that [appellant] demonstrated

an understanding of" the waiver, including its consequences. The trial court also

found that appellant knowingly executed the waiver and agreed to the plea

bargain.   Thus, the trial court concluded that appellant freely, knowingly and

voluntarily (1) waived his right to an attorney, (2) waived his right to apply for a

court-appointed attorney, and (3) entered his plea.

      We review a trial court's ruling on a habeas corpus application for abuse of

discretion. Kniatt v. State, 206 S.W.Sd 657, 664 (Tex. Crim. App.), cert, denied,

549 U.S. 1052 (2006). The trial court's application of the law to undisputed facts

is reviewed de novo. Ex paiie Roberts, 409 S.W.Sd 759, 762 (Tex. App.—San

Antonio 2013, no pet.). A defendant's sworn representation that his or her waiver

of counsel and guilty plea are knowing, intelligent, and voluntary "constitute[s] a

formidable barrier in any subsequent collateral proceedings." Kniatt, 206 S.W.3d

at 664.
      Although counsel referred to the status of similar persons in appellant's

situation as "undocumented" and argued in the application that the impact on

appellant is that he "may now face deportation and loss of the ability to re-enter

the United States and to ever.. . gain legal permanent residency or citizenship,""^

appellant provided no testimony regarding the nature of his noncitizen status.

See Ex parte Garcia, 353 S.W.3d 785, 789 (Tex. Crim. App. 2011) ("Sworn

pleadings provide an inadequate basis upon which to grant relief in habeas

actions."). If, at the time of his plea and waiver of counsel, he was not present in

the United States legally, then his plea or waiver of counsel could not be

considered involuntary for the failure to inform him of immigration consequences

specific to the charged offense, regardless of the applicability of Padilla.      Cf.

State V. Guerrero, 400 S.W.3d 576, 588-89 (Tex. Crim. App. 2013) ("Unlike Jose

Padilla, appellee was an undocumented immigrant and was deportable for that

reason alone, both in 1998 and today. Had appellee gone to trial with counsel

and been acquitted he would not have been transformed into a legal resident.

He could have been deported immediately after walking out of the criminal

courthouse.   The prospect of removal therefore could not reasonably have

affected his decision to waive counsel and plead guilty." (footnotes omitted)).

      If, instead, appellant had legal noncitizen status at the time of his plea, he

has cited no law applying Padilla—a case deciding the extent of an attorney's

      '^Appellant also asserted in indigency filings that he did not have a social
security number or idehtification card and, thus, could not work.
duty to his or client—^to waivers of the right to counsel. See U.S. v. Kabore, No.

1:13-CR-217-ODE, 2014 WL 2809870, at *6 (N.D. Ga. June 19, 2014) (order)

(holding that because applicant waived counsel in underlying state proceeding,

Padilla is inapplicable).     To do so would elevate the consideration of

consequences of negative immigration status over other negative consequences

that could occur when a defendant elects to waive the right to counsel. See U.S.

V. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 2455 (2002) ("[T]he law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware if the defendant

fully understands the nature of the right and how it would likely apply in general in

the circumstances—even though the defendant may not know the specific

detailed consequences of invoking it."); cf. Guerrero, 400 S.W.3d at 589 (noting

that court of criminal appeals has repeatedly held that article 26.13 statutory

admonishments are not required in misdemeanor cases).

      The State introduced as evidence a signed "Waiver of Lawyer and

Request to Proceed Pro Se," which informed appellant of his right to be

represented by a lawyer and to have a lawyer inform him of his "rights to a trial

by jury and . . . other rights." The waiver also contained six detailed recitals,

among them the following: "if I am not a U.S. citizen, a plea of guilty or nolo

contend[e]re may result in deportation, exclusion from admission into the U.S., or

denial of naturalization." The waiver further informed appellant that proceeding

without counsel could lead to loss of any defenses, waiver of the right to

complain about technical errors, and waiver of the right to—and ability to
complain on appeal about the lack of—effective assistance of counsel. Finally,

the waiver concludes,

           I have been advised by the Court of my right to representation
      by counsel in the trial of the charge pending against me. I have
      been further advised that if I am unable to afford counsel, one will be
      appointed for me free of charge. I acknowledge that I am an adult,
      have lived independent of my parents, have sufficient knowledge
      and education to understand what I am reading or ask question[s]
      about portions I do not understand and have no learning difficulties
      that impede day-to-day living. I will immediately let the judge know
      of any misunderstandings or questions I have about the information
      contained on either side of this document.


             I have read and understand the foregoing as well as the other
      side of this paper. The court has this date admonished me of the
      foregoing rights. I waive arraignment by this court. I waive my right
      to a lawyer in this case and request the court to proceed with my
      case without a lawyer being appointed for me. I waive my right to
      counsel.


Underneath appellant's signature is the following recital, signed by the trial judge:

"Defendant was admonished, demonstrated an understanding of the above . . .

consequences of the waivers set forth herein and knowingly made such waivers

of plea of guilty/nolo contend[e]re."   There is no evidence in the record that

appellant did not understand or could not read English.^

      Based on the foregoing, we conclude and hold that appellant did not meet

his burden of defeating the presumption that the recitals in the written judgment

are correct and, therefore, that the trial court did not abuse its discretion by




      ^Appellant's counsel asserted in the application that appellant had been
living in the United States since he was between four and six months old.
denying relief. See Guerrero, 400 S.W.3d at 583, 589. We affirm the trial court's

pretrial order.

                                                 /s/Terrie Livingston

                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE


PANEL: LIVINGSTON. C.J.; GABRIEL and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2015
Exhibit B
                                                                          CAUSE NO. CCM-i3-05SS

           THK STATE OF TEXAS                                                                         IN THE CX)U>JTY COURT AT LAW NO. 1

           VS.                                                                                        OF


                              nSPINOZA. DEFENDANT                                                     PARKER COUNTY. TEXAS



                                                    WAIVER OF LAWYIiR AND REQUEST TO PROCEliD PRO SE

I am ANGEL RICkV KSPINOZA whois charged wllhPDSS CS PG 2-A                          20Z in U»c ubovc causc.I understand ihmI have Ihc followmg rights:
           - to have arraignmcnl by ihis court (be advised of the chiirgcs; range of punishment, iind my rights)
           - to have a trial by jury;
           • lo be represented by a lawyer chosen by me;
           • lo have a lawj'cr appoihled for mc if I cannot afford one;
           - lo have a lawyer inform mc of my rights lo a trial by jury and my other rights;
           - to continue to represent myself; and
           • lo have len days after appointment of any lawyer before entering a plea.
I unidersfand:
           - Ihc nature of the charge against me and Ihc range of punishment for the chargc;
           - thai upon a plea of guilty or nolo contendre wllh a written, signed waiver of a Jury, tlic court may assess punishmcnl al its own discretion;
           • that proceeding witlioul a lawyer could result in a conviction or more severe punishmcnl than may have resulted had I been represemcd by a lawyer
           -1 may withdraw my waiver of counscl, under.ccrtain conditions;
           - ihat if 1 receive dcfcrn^d adjudication, on violation of a condition of probation I may be arrested and detained. Also 1 am entitled to a hearing
           Itmiled to the deternunation by ihe court of whether it proceeds with an adjudication of giiill oh the original charge. After an adjudication of guilt,
           all proceedings, including assessment of punishment.
           pronuuncement of sentence,grantingof probationand any appealcontinueas if the adjudication of guilt had riotbeen deferred. The court may
           ^sess punishment anywhere within the range provided by the law for this ofichse; and
           - thai if I am not o U.S. citizen, a plea of guilty or nolo contendre may result in deportation, exclusion from admiission inio the U.S., oi' denial of
           naturalizalion.
Vou May Be Making a Big Mistake, and the following will explain why:
      A. You wiU rcccivc no special favors or os.sisiance from the bcnch;
        B. You will be expected to comply with all relevant rules and procedure;
        C. Your right to sclf-represcntalion is not n license to abuse the dignity of the courtroom or to gel favorable ircalnicni;
        D. The Court may. and will, termiriate your self-representation should you deliberntely engage in ol>struclionist or other serious misconduct:
        E. If the C^urt wishes, standby counscl will be appointed in order to represent you in the event termination of your self>rcprescntation becomcs
        necessary. or to aid you if and when help is requested; you have no standing to object (b suchi^pointment; and
        F. Ifchoosing seif-rcprcscntation. youwill relinquish many,of the traditional bcnefils associated witli having o laxyycr represent you
           1. In all but w cxtrdordinanly simall number of cases, an accused who undertakes sclf-represcntalion will lose whatever defense he may have;.
           2. You may give up the right to complain of any technical errors in your case;
           3. Your lackpf cvidcr)liary knowledge and experience will necessarily lead lo woiver of errors in the admission and exclusion of evidence;
           4. You may dius be cunvlctcd upon incompetent, irrelevant or otherwise inadmissible evidence;
           5. You fa(x the danger of conviction, though you be not guilty as a maitter of law. bccause you do not know how to establish reasonable doubl
           that you arc guilty;
           6. You specifically forego the right to the crfectiye assi.stance of counsel, and. may not be heard laler to complain oii ihis ground:
           7. In the sense that assistance of counscl is essential to a fair trial and due process of law, you likewise relinquish those gxmrantccs; and
           8. Other benelits such its selection of nn impartial jury, a fair final iirgurneni by the State, errorless instructions to ihcjur^' including any defensive
           isstied.

1 have been advised by the Court of my right to representation by counsel in the trial of the charge pending against mc. I have been further advised that if 1
am unable to afford counscl. one will be appointed for mc free of chargc. 1 acknowledge that I am an adult, have lived independent of my parents, have
sulTicicnl knowledge and education to.understand what I am rcading.or ask question about portions I do not understand and have no learning difnculties that
impede day-to-day living. I will immediately let the judge know of any misunderstandings or questions 1 have about the information contained on either side
bfthis documenL

I have read and understand the foregoing as well as the other side of this paper. I'he court has this .date admonished mc of the foregoing rights: I waive
arraignment by this court. I waive my right to a lawyer in this case and request the court to proceed with niy ea^c without a lawrycr being appointed for me. I
waive my right to counscl.
                                                                                                              /<9-3.g-/ 3
                                                                             WAIVER OFJtmV


1understand thai 1havea rightlo havea trial before a jury and to have a jup' determine if I am guilty or not, and if thejtiryshould find me guilty; ihcn to
have the jury determine the amount of punishment 1should receive. Knowing.said rigiils. I give up the right to be tried before a jury.
           Wherefore. I do hereby enter my plea to the charge nied'againsl-me in this case; and 1 request the Court accept my plea of guilty and proeecd to
assess punishmcnl and to sentence me in accordance with the law.


                                                                            receweoano^d
           Defenc^i was admonished, demonstrated an understanQi^                                              of the waivers set forth herein and knowingly made
sue!                         Bliium^icndrc.
        ivers ofplia ofguiUiisirrotp
                                                                                 0CT28Z0W                                gy-/:?
                                                                           Je




                                                                                                                                           -ay'f-1:-'




                                                                                     EXHIBIT NO.

                                                                                     DATeM^4             RPTR: JT
                                     CAUSE NO.1 " i ^-06^*5
THE STATE OF TEXAS                              §                   m TVIE COU-NTY COURT
VS.                                             §                   ATLAWMO. 1 OF                                    EXHIBIT NO   \

                     f\0fp4
                                                 §                   PARKER COUNTY. Texas                            DATE:AiM!?RPTR:JT
   WAIVETI OP .iURY TIHAL. WAIVRU OK TKN DAYS TO PUEPATtE FOR TRtAU COURT'S                                          -

       AnMONTSHMENTS. WAWRR OF t'RESENTENCE REPORT AND IM.EA AGREEMENT



         COIvlES NOW, iho Defendanl, joined by his/her alloiTiey and the Attomey for Ihc Stale in llie
 abovc-slylcd arid niinibcrcd caiiso, waives higher right to a trial and liis/her right to a ti ial by jury, as to
 both guilt and innbccncc and also as to punislinietil, and to confront his/her accusers, and if applicable',
 waives tlie Icn (10) days allowed him/her lb prepare for trial. The Defendant and the-Stale hereby enter an
 announcement of ready in liiis cause.
             The plea leconinicndation set forth below is agreed to by the Defendant, his/her atloiiiey and the
 State's attomey, as evidenced by their respective signatineS below. The Defendant understaiids that the
 vecommendation is not bindirig on the Court and if he/she pleads guilty and the punishment assessed by the
  Cbui't does not exceed the punishment reconimended, an appeal herein may be prosecuted only with the
  pomiissionof the trial court. Rejection of the piea veconuncndalion will allow Defendant to withdraw
  his/her plea of guilty or nolo contcndere. All written motions on Tile arc hereby waived.

              Defendant acknowledges Ih'al hc/slie is aware of the fiill range of punishment provided by law for
   this offense.


              If Defendant has not been previously aiTaignod in Ihis causc, Defeiidant waives arraignment at this
   time.


               If the plea recommendation,is for deferred adjudication cominunity supervision, the Defendant is
      hereby infomied that on violation of a coilidilibn of comriiunity supervision the Defendant may be an ested
      and detained. Defendant is entitled to a hearins limited lo the determinalion by the Court of whether il
      proceeds with an adjudication of guilt on the original charge. After an adjudication of guilt, all
      proceedings, including assessment of punislniieht,pronoiuicement of sentence, gianting of comiTiunity
      supervision, and Defendanl's appeal continue as if the adjudication of guilt had not been defen ed. Tlie
      Court may assess pimisimient anywhere within the range provided by law for ihis offense.
                Defendanl utiderstands thai if he/she is not a U.S. Citizen, a plea of guilty or nolo contcndere may
       result in deportation, exchisibu from admission to the U.S.j or denial of naturalization.
                Tlie Defendant waives a pre-sentencc report and his/her right to have an alcohol evaluation
       performed priorto sentencing, pefendantacknowledges his/her signatuic below is made fi^eely and
       voluntarily and that he/she understandsthe content of this document and it's effect.
                 Counsel acknowledges explaining this documcnl to Defendant and that it is counsel's belief that
        Dcfendaiiit understands the same.

        PLE/S RECOMMENDATION _                         OR      OPEN PLEA To COURT .

        OFFENSE CHARGED;                     C-S                     <."=• A-oz-            _(CLASS B)

         RANGE OF PUNISI IMENT; A fine not to excecd $2,000.00, a jailterm not to exceed 180 days, or both, _
         24 — 100 hours of conimunily service -i- court costs.

         AGREED RECOMIVIENDATION:                           -t CIC. j-                              ^ _ ,4'
            -4- bodP -i


                                                                  DEFENDANT'S ArrORNEY


           STATE>g77r'fO RNEY '                                   DATE
                     Defendanlwas admonished and demonslralcdan nnderslandh^g of the above,
                laivers s(a-#orrin553n andIcjowiiisly            such waivers and plea of guiliy/nolo t^hUji         clock


                                                                       / <3                                     OCT 2 8 2013
                                                                   DATE                                   Jeone Brun^, Co. Clerk
                                                                                                                           Clerii '
