                                                                                   ACCEPTED
                                                                              01-14-00804-CR
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                         4/16/2015 3:21:29 PM
                                                                          CHRISTOPHER PRINE
                                                                                       CLERK

                                NO. 01-14-00803-CR
                                NO. 01-14-00804-CR
                                                              FILED IN
                                                       1st COURT OF APPEALS
                                                           HOUSTON, TEXAS
                            IN THE COURT OF APPEALS    4/16/2015 3:21:29 PM
                                                       CHRISTOPHER A. PRINE
                                                               Clerk
                             FOR THE STATE OF TEXAS

                      FOURTEENTH SUPREME JUDICIAL DISTRICT

      ___________________________________________________________

                              RICARDO JAVIER PENA

                                Defendant/ Appellant

                                         V.

                                 STATE OF TEXAS

                                  Plaintiff/Appellee

      ___________________________________________________________

               On Appeal in Cause Nos. 139,2873 and 139,2874
                    From the 178th Judicial District Court
                           of Harris County, Texas
                    Honorable David Mendoza, Presiding
      ___________________________________________________________

                        BRIEF FOR APPELLANT
       __________________________________________________________



                         ORAL ARGUMENT NOT REQUESTED


Brief for Appellant                                                Page
Ricardo Javier Pena                                                1
                            NAMES OF ALL PARTIES


    1. Appellant:       .       .   .   .   Ricardo Javier Pena
                                            TDCJ # 01969337
                                            A3-49
                                            295 IH 45 North
                                            Huntsville, Texas 77320

    2. Attorney for the State: .    .   .   Charles Brodsky
                                            SBN 24057774
                                            Asst. District Attorney
                                            Harris Co. D.A.’s Office
                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002

    3. Defense Counsel at Trial:    .   .   Michael E. Trent
                                            SBN 00791814
                                            11621 Spring Cypress Road
                                            Suite C
                                            Tomball, Texas 77377

    4. Trial Judge:     .       .   .   .   Hon. David L. Mendoza
                                            Presiding Judge
                                            178th District Court
                                            Houston, Texas 77002

    5. Counsel for Appellant:       .   .   Mark A. Rubal
                                            SBN 17360325
                                            15150 Middlebrook Dr.
                                            Houston, Texas 77058




Brief for Appellant                                                     Page
Ricardo Javier Pena                                                     2
                                     TABLE OF CONTENTS

    NAMES OF ALL PARTIES................................................................         2

    TABLE OF CONTENTS.....................................................................       3

    INDEX OF AUTHORITIES................................................................         4

    STATEMENT REGARDING ORAL ARGUMENT..........................                                  5

    PRELIMINARY STATEMENT..........................................................              5

    STATEMENT OF FACTS..................................................................         7

    POINT OF ERRORS...........................................................................   9

    POINT OF ERROR ONE:
        APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
        OF COUNSEL IN THE ENTRY OF HIS PLEAS OF
        GUILTY BECAUSE OF THE IMPROPER ASSURANCES
        AND/OR MISREPRESENTATIONS OF HIS TRIAL
        COUNSEL..............................................................................    9

    ARGUMENT AND AUTHORITIES.................................................                    9

    PRAYER FOR RELIEF.......................................................................     14

    CERTIFICATE OF SERVICE.............................................................          16




Brief for Appellant                                                                                   Page
Ricardo Javier Pena                                                                                   3
                                     INDEX OF AUTHORITIES

    CASES

    Cooper v. State, 769 S.W.2d 301 (Tex. App.-Houston
         [1st Dist.] 1989, pet. ref’d) ........................................................          10

    Fimberg v. State, 922 S.W.2d 205 (Tex.App.-Houston
         [1st Dist.] 1996, pet ref’d) ........................................................           12

    Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.1986)............... 11

    Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)................                              12

    McGuire v. State, 617 S.W.2d 259 (Tex. Crim. App. 1981)..............                                12

    Mercado v. State, 615 S.W.2d 225 (Tex. Crim. App. 1981)..............                                11,12

    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
           806 L. Ed. 674 (1984)...............................................................          10,11,
                                                                                                         12



    CONSTITUTIONS, STATUTES, AND OTHER AUTHORITIES

    Tex. Const. Art. I, Sec. 10 ...................................................................      11

    Tex. R. App. P. 39 ...............................................................................   5

    U.S. Const. Amend. VI ........................................................................       10,11




Brief for Appellant                                                                                           Page
Ricardo Javier Pena                                                                                           4
                      STATEMENT REGARDING ORAL ARGUMENT

              Pursuant to Tex. R. App. P. 39 Appellant waives oral argument unless the

    Court believes the decisional process would be significantly aided by any

    argument.



                             PRELIMINARY STATEMENT

              On June 27, 2013, Appellant Ricardo Javier Pena (“Pena”) was charged

    with two cases of Aggravated Sexual Assault of a Child, under cause numbers

    139,2873 and 139,2874. (CR, 139,2873, Vol. 1; p. 6) and (CR, 139,2874, Vol.

    1; p. 6). Pena was indicted for both cases on September 18, 2013, without any

    enhancement paragraph(s). (CR, 139,2873, Vol. 1; p. 12) and (CR, 139,2874,

    Vol. 1; p. 6).

              On March 24, 2014, Pena pled guilty to the charges without an agreed

    recommendation. (CR, 139,2873, Vol. 1; pp. 26-38) and (CR, 139,2874, Vol.

    1; p. 27).1 The cases were reset for a pre-sentence investigation hearing on


         1
              The Clerk’s record for cause number 139,2874 contains only the Motion for
Community Supervision and no copies of the plea papers. However, the Pre-Sentence
Report indicates Pena pled guilty to both cases (RR, Vol. 5, p. 4), each Clerk Record
contains a reset for a Pre-Sentence Investigation Hearing on both the cases (CR,
139,2873, Vol. 1; p. 25) and (CR, 139,2874, Vol. 1; p. 25), the Judge recites that
Brief for Appellant                                                               Page
Ricardo Javier Pena                                                               5
    August 8, 2014. (CR, 139,2873, Vol. 1; p. 25) and (CR, 139,2874, Vol. 1; p.

    25). At the pre-sentence investigation hearing, the Court heard testimony and

    after considering the evidence, the Judge found Pena guilty and reset the cases

    for sentencing in thirty (30) days. (RR, Vol. 2; pp. 46-50).

              On September 22, 2014, the Judge sentenced Pena to twenty (20) years

    confinement in the institution division of the Texas Department of Criminal

    Justice, to run concurrently. (RR, Vol. 3; pp. 4-5) and (CR, 139,2873, Vol. 1;

    pp. 45-46) and (CR, 139,2874, Vol. 1; pp. 34-35). Pena filed his Notice of

    Appeal on September 22, 2014, (CR, 139,2873, Vol. 1; pp. 49-50) and (CR,

    139,2874, Vol. 1; pp. 38-39). The undersigned attorney was appointed and

    assigned to represent Pena for his appeal on September 24, 2014. (CR,

    139,2873, Vol. 1; p. 51) and (CR, 139,2874, Vol. 1; p. 40).

              On October 21, 2014, Pena filed a Motion for New Trial alleging

    ineffective assistance of counsel. (CR, 139,2873, Vol. 1; pp. 54-57) and (CR,

    139,2874, Vol. 1; pp. 43-46). The Motion for New Trial was denied on

    December 5, 2014, after a hearing and testimony from trial counsel for Pena

    responding to the allegations of ineffective assistance raised by Pena in the


Pena pled guilty on both cases at the Pre-Sentence Investigation Hearing (RR, Vol. 2;
pp. 5-7), and each Clerk record contains a Judgment and Sentence for both cases (CR,
139,2873, Vol. 1; pp. 45-46) and (CR, 139,2874, Vol. 1; pp. 34-35).
Brief for Appellant                                                            Page
Ricardo Javier Pena                                                            6
    Motion. (CR, 139,2873, Vol. 1; p. 58), (CR, 139,2874, Vol. 1; p. 47) and (RR,

    Vol. 4; pp. 4-38).

              The appellate record consists of one (1) volume of the Clerk’s Record

    for each cause (CR, 139,2873, Vol. 1; p. ___), (CR, 139,2874, Vol. 1; p. ___)

    and four (4) volumes of the Reporter’s Record (RR, Vol. ___; p.___).



                               STATEMENT OF FACTS

              According to the record, Pena was accused of sexually assaulting two of

    his granddaughters. One of the girls is named as the complainant in cause

    number 139,2873 (identified as VC) and the other is named as the complainant

    in cause number 139,2874 (identified as EM). The abuse purportedly occurred

    over approximately a two year period (from the time the girls were in first

    grade until they were in third grade). The girls reported that the abuse

    happened on multiple occasions when they visited Pena and/or stayed over at

    his house.

              On June 18, 2013, the initial report of abuse was made to the Houston

    Police Department after VC told her mom about the abuse. VC’s mother is

    Pena’s step daughter-in-law. VC also told the police that EM was being

    abused by Pena as well. The Juvenile Division Sexual Abuse Unit investigated

Brief for Appellant                                                              Page
Ricardo Javier Pena                                                              7
    the allegations.

              Both complainants were subsequently interviewed at the Children’s

    Assessment Center and both corroborated the allegations of abuse by Pena.

    The mother of EM is Pena’s daughter. When she was interviewed, she related

    an incident when EM was in first grade and got into trouble at school because

    she was talking about sex with another child. When EM was confronted about

    the subject, she said her grandfather (Pena) had told her about sex. Pena was

    told about the statements made by EM and Pena said EM was lying. EM got

    into trouble for lying and unbeknownst to anyone, at the time, Pena

    purportedly continued to abuse EM.

              When Pena was initially questioned about the allegations, he stated the

    accusations were not true. Charges were filed against Pena on June 27, 2013.

    (CR, 139,2873, Vol. 1; pp. 6-7) and (CR, 139,2874, Vol. 1; pp. 6-7).

              After Pena was arrested, trial counsel was appointed to represent him on

    July 1, 2013. (CR, 139,2873, Vol. 1; p. 9) and (CR, 139,2874, Vol. 1; p. 9).

    Pena subsequently made bond and his case(s) were reset approximately seven

    (7) times before he entered a plea of guilty to the charges on March 24, 2014.

              Before entering his plea(s), Pena asked his trial attorney what he would

    do if he were in his place. His trial attorney said he would plead guilty and

Brief for Appellant                                                               Page
Ricardo Javier Pena                                                               8
    throw himself on the mercy of the Court. Pena’s trial attorney also said he

    thought Pena would get deferred probation because he [Pena] had never been

    in trouble before, had been an asset to the community for thirty-three (33) years

    as a pastor, and had done volunteer work. The attorney also told Pena that if

    he did not get deferred probation then he [Pena] should get no more than five

    (5) years in prison. As a result, Pena decided to enter a plea of guilty to both

    the charges. See Affidavit of Ricardo Pena (CR, 139,2873, Vol. 1; pp. 56-57)

    and (CR, 139,2874, Vol. 1; pp. 45-46).

              As stated, Pena got sentenced to twenty (20) years in prison by the

    Judge.



                                POINT(S) OF ERROR:

    POINT OF ERROR ONE:

         APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
    COUNSEL IN THE ENTRY OF HIS PLEAS OF GUILTY BECAUSE OF
    THE IMPROPER ASSURANCES AND/OR MISREPRESENTATIONS OF
    HIS TRIAL COUNSEL.


                          ARGUMENT AND AUTHORITIES

              The test for determining whether a defendant was denied the effective

    assistance of counsel was established by the Supreme Court of the United

Brief for Appellant                                                              Page
Ricardo Javier Pena                                                              9
    States in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 806 L. Ed.

    674 (1984). The Court held that ineffective assistance of counsel is shown

    only where the attorney’s errors are so serious that the attorney was not

    functioning as counsel guaranteed by the Sixth Amendment and, in addition,

    the defendant was deprived of a fair trial because of the error. U.S. Const.

    Amend. VI.

              For an error to reach that magnitude, there must be a reasonable

    probability that, but for counsel’s unprofessional errors, the result of the

    proceeding would have been different. The Court defined a reasonable

    probability as a probability sufficient to undermine confidence in the outcome.

    Strickland, supra; See also Cooper v. State, 769 S.W.2d 301, 304 (Tex. App.-

    Houston [1st Dist.] 1989, pet. ref’d).          However, the Supreme Court in

    Strickland also held:

              On the other hand, we believe that a defendant need not show that

              counsel’s deficient conduct more likely than not altered the outcome of

              the case . . . [t]he result of a proceeding can be rendered unreliable, and

              hence, the proceeding itself unfair, even if the error of counsel cannot

              be shown by a preponderance of the evidence to have undermined that

              outcome. Strickland, 466 U.S. at 694; 104 S. CT. 2068.

Brief for Appellant                                                                  Page
Ricardo Javier Pena                                                                  10
              The Court emphasized that the test is not rigid in its application, but

    requires flexibility:

              A court should keep in mind that the principles we have stated do not

              establish mechanical rules . . . [t]he ultimate inquiry should be on the

              fundamental fairness of the proceeding . . . [i]n every case the Court

              should be concerned whether . . . the result of the particular proceeding

              is unreliable because of a breakdown in the adversarial process that our

              system counts on to produce just results. Strickland, 466 U.S. at 696,

              104 S. Ct. 2069.

              The standard on the right to counsel is the same under the United States

    and Texas Constitutions. U.S. Const. Amend VI; Tex. Const. Art. I, Sec. 10;

    Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986). An

    attorney’s performance must be gauged by the totality of the representation.

    Strickland, supra; see also Mercado v. State, 615 S.W.2d 225, 227-228 (Tex.

    Crim. App. 1981). However, a defendant is not entitled to errorless counsel.

    Hernandez, supra. A fair assessment of counsel’s performance requires that

    every effort be made to eliminate the distorting effects of hindsight, to

    reconstruct the circumstances, and to evaluate counsel’s conduct from his

    perspective at the time. A defendant must overcome the presumption that the

Brief for Appellant                                                                Page
Ricardo Javier Pena                                                                11
    challenged action might be considered sound trial strategy. Strickland, 466

    U.S. at 689, 104 S. Ct. at 2065.

              Thus, Texas case law requires a two fold showing to establish ineffective

    assistance:

              (1)     an act that constitutes ineffective assistance of counsel; and

              (2)     that the defendant suffered harm because of this ineffective

                      assistance.

    Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Mercado, 615 S.W.2d at 228.

              A plea of guilty based on erroneous information is involuntary.

    McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981). However, a

    defendant’s claim that he was misinformed by counsel, standing alone, is not

    enough for a reviewing court to hold the plea was involuntary. Fimberg v.

    State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet ref’d). The

    claim for ineffective assistance of counsel must be affirmatively supported by

    the record. Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998).

              Pena states in his affidavit that he would not have pled guilty to the

    charges offenses, but for the assurances of his trial counsel that he [Pena]

    would get either deferred probation or at worst five (5) years. See Affidavit of

    Ricardo Pena (CR, 139,2873, Vol. 1; pp. 56-57) and (CR, 139,2874, Vol. 1;

Brief for Appellant                                                                    Page
Ricardo Javier Pena                                                                    12
    pp. 45-46).

              His trial counsel testified at the motion for new trial. Trial counsel

    stated that at first Pena said he was not guilty. However, after trial counsel had

    the opportunity to review the forensic interviews of the complainants and fully

    understand the evidence against Pena they began to have earnest discussions

    about Pena pleading guilty. (RR, Vol. 4, pp. 8-9). During the discussions and

    the course of representations, trial counsel said he told Pena he had extensive

    experience in child abuse cases. He informed Pena that he had practiced

    criminal law for almost 20 years (14 years as prosecutor and 6 years as a

    defense attorney), he had extensive experience in child abuse cases and he had

    co-authored a book by the Texas District & County Attorneys Association

    (TDCAA) relating to the investigation and prosecution of child abuse cases.

    (RR, Vol. 4; p. 10).

              Trial counsel further said he told Pena that he thought he [Pena] had a

    better than normal chance of getting deferred probation by pleading guilty to

    the Judge based on his background, his record of service to the community, his

    work as a minister, and the good he had done in his life. (RR. Vol. 4; p. 12).

    Trial counsel also testified that he told Pena that if he [Pena] did not get

    deferred then he expected he would get not more than five (5) years in prison.

Brief for Appellant                                                               Page
Ricardo Javier Pena                                                               13
    (RR, Vol. 4; p13). Trial counsel agreed that Pena relied on his advice when he

    [Pena] pled guilty to the charged offenses. (RR, Vol. 4; p. 15).

              Based upon the record, it is reasonable to conclude that but for the

    assurances of trial counsel Pena would not have pled guilty to the charged

    offenses.         Pena states that his pleas of guilty were in reliance on the

    punishment advice of his trial counsel and his trial counsel affirms his reliance.

    The punishment assurances made by trial counsel, boot strapped with the

    qualifications and experience he communicated to Pena, manifests a

    fundamental unfairness in the proceeding.              The assurances and/or

    representations were not guarantees, but it is clear that Pena trusted the advice

    of his trial counsel when he decided to plead guilty to the charges. The record

    shows that trial counsel knew Pena was relying on his advice and Pena clearly

    suffered harm because the assurances and/or representations turned out to be

    false. As a result, the pleas of guilty by Pena were involuntary and his

    conviction(s) should be reversed.


                                  PRAYER FOR RELIEF

              WHEREFORE PREMISES CONSIDERED, Appellant respectfully

    prays that this Court reverse his conviction and remand the case back to the


Brief for Appellant                                                               Page
Ricardo Javier Pena                                                               14
    trial court for a new trial and/or enter an order of acquittal, as appropriate and

    for any and all such other relief for which he may be legally and justly entitled.




                                             Respectfully Submitted,


                                                /s/ Mark A. Rubal
                                             By: Mark A. Rubal
                                                  SBN 17360325
                                                  15150 Middlebrook Dr.
                                                  Houston, Texas 77058
                                                  (281) 286-2222 Telephone
                                                  (281) 488-4597 Telefax
                                                  Attorney for Appellant




Brief for Appellant                                                               Page
Ricardo Javier Pena                                                               15
                              CERTIFICATE OF SERVICE

              I hereby certify that a true and correct copy of the foregoing instrument

    was served upon the District Attorney of Harris County, Texas, on this the 16th

    day of April, 2015, by delivering a copy of the Brief to the Harris County

    District Attorney’s Office, Appellate Division, 1201 Franklin Street, Suite 600,

    Houston, Texas 77002 by CMRRR No. 7013 1710 0001 3124 4298.

              I further certify that, on the same day, a true and correct copy of the brief

    was mailed to Appellant, Ricardo Javier Pena, TDCJ # 01969337, A3-49, 295

    IH 45 North, Huntsville, Texas 77320 by CMRRR No. 7013 1710 0001 3123

    9577.




                                                      /s/ Mark A. Rubal
                                                        Mark A. Rubal




Brief for Appellant                                                                    Page
Ricardo Javier Pena                                                                    16
