                                                                             ACCEPTED
                                                                         03-15-00334-CR
                                                                                 7672157
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    11/4/2015 8:56:57 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK


              No. 03-15-00334- CR
                                                        FILED IN
                                                 3rd COURT OF APPEALS
                    IN THE                           AUSTIN, TEXAS
                                                 11/4/2015 8:56:57 AM
             COURT OF APPEALS                      JEFFREY D. KYLE
                                                         Clerk

                    OF THE

    THIRD JUDICIAL DISTRICT OF TEXAS

                --------------------

       EX PARTE MOISES MARTINEZ,
                                   Appellant
              --------------------

Habeas Corpus Appeal from Cause No. 2C11-07750
       Bell County Court-at-Law No. Two

                --------------------

         STATE APPELLEE’S BRIEF

                --------------------


                                                 JAMES NICHOLS
                                       BELL COUNTY ATTORNEY
                                                                  by
                                                     Stephen Morris
                                         Assistant County Attorney
                                                      P.O. Box 1127
                                                Belton, Texas 76513
                                                 Tel: (254) 933-5135
                                                Fax: (254) 933-5150
                                                     SBN: 14501700
STATE WAIVES ORAL ARGUMENT




            ii
                    IDENTITY OF PARTIES AND COUNSEL

APPELLANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moses Martinez AKA
                                                                        Moises Martinez Hernandez
                                                                           456 South Old Potato Rd.
                                                                                  Paige, Texas 78659

APPELLANT’S TRIAL COUNSEL. . . . . . . . . . . . . . . . . . . . . . . .Scott Sinsabaugh
                                                   1508 S.W. H.K. Dodgen Loop
                                                                    Temple, Texas 76502

APPELLATE AND WRIT COUNSEL. . . . . . . . . . . . . . . . . .Jose “Chito” Vela III
                                            505 E. Huntland Drive, Ste 300
                                                              Austin, Texas 78752

STATE’S APPELLATE WRIT COUNSEL . . . . . . . . . . . . . . . . . . Stephen Morris
                                                   Assistant County Attorney
                                              Bell County Attorney’s Office
                                                                1201 Huey Road
                                                              Belton, Texas 76513

JUDGE PRESIDING. . . . . . . . . . . . . . . . . . . . . . . . . The Honorable John Mischtian
                                                                         Bell County Court #2
                                                                         Belton, Texas 76513




                                                 iii
                                        TABLE OF CONTENTS

WAIVER OF ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii


IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . iii


TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv


INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v


STATE”S ANSWER TO GROUND NUMBER ONE. . . . . . . . . . . . . . . . . . 1

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11




                                                        iv
                                     INDEX OF AUTHORITIES

Federal Cases

North Carolina v. Alford, 400 U.S. 25, 31,
91 S. Ct. 160, 27 L.Ed 2d 162 (1970) . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .9

Padilla v. Kentucky, 130 S. Ct. 1473 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . .8


State Cases

Ex Parte Aftab Ali, 368 S.W. 3d 827, (2012)
(3rd District, Austin). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Ex Parte Richardson,70 S.W. 3d 865, 870
(Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Ex Parte Wheeler, 203 S.W. 3d 317, 324
(Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Ex Parte Wolf, 296 S.W. 3d 160,166-67
(Tex. App.– Houston [14th Dist.] 2009, pet.ref’d). . . . . . . . . . . . . . . . . . . . . . . . . 9

Constitution

U.S.Const. Amend. V, XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Texas Const. Sec. 3, 3a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                         v
              STATE’S ANSWER TO GROUND ONE FOR RELIEF

       Applicant was not denied his rights to due process of law under the United

States Constitution or the Texas Constitution during or after the pendency of his

misdemeanor case (MR2C11-07750), as the record from the evidentiary hearing plainly

reflects.

       On September 3, 2011, applicant was arrested for the Class B misdemeanor

offense of Driving While Intoxicated.( State’s Writ Exhibit No. 1) Eleven months

later, on August 9, 2012, applicant entered a plea of nolo contendere to the above

charge in open court with his criminal defense attorney present. ( State’s Writ Exhibit

No. 2) During the course of the plea, the trial court orally admonished applicant as to

the rights he waived by pleading guilty under the signed plea agreement, as was the trial

court’s custom. The plea agreement was signed by the prosecutor, applicant’s defense

attorney and applicant. The agreement was subsequently approved by the trial court.

(State’s Writ Exhibit No. 2) Applicant was sentenced to three days in jail with three

days credit, $850.00 fine and $409.10 court costs. (State’s Writ Exhibit No. 2)

            Before applicant entered his plea of guilty he had the advise and counsel of

his criminal defense attorney, Mr. Scott Sinsabaugh, as well as his immigration


                                            1
attorney, Mr. Jesus Andarza. (Writ Hearing, p.19) Applicant testified that his father

had hired Austin attorney, Mr. Andarza, an immigration specialist, even before

applicant had been released from the Bell County Jail. By applicant’s own admission,

applicant met with his immigration counsel at least three times before applicant entered

his plea of guilty on August 9, 2012. (Writ Hearing, p.19)

      As is apparent from the record made at the writ hearing, applicant speaks and

understands the English language and earned a high school diploma from Reagan High

School in Austin, Texas. (Writ Hearing, p. 7)

      Applicant had the advice and counsel of his immigration counsel before he ever

walked out of the Bell County jail after his arrest. (Writ Hearing Vol. 2, p. 9-10)

Applicant’s immigration attorney made the trip from Austin to the Bell County Jail

within hours of applicant’s arrest to advise applicant concerning the immigration

implications of applicant’s arrest for the misdemeanor offense of Driving While

Intoxicated.   Applicant was arrested at 3:00 a.m. on a Saturday morning and his

immigration attorney was present at the Bell County jail on Sunday, the following day.

(Writ Hearing Vol. 2, p. 14, 18)

      According to applicant’s testimony, after he was arrested his father retained Mr.

Jesus Andarza, an immigration attorney practicing in Austin, Texas.       Not only was

his hired immigration attorney counseling with applicant in the Bell County Jail, he also

                                            2
was successfully representing applicant in negotiating with the United States

Immigration Service, to allow applicant to be released on a personal bond from federal

custody, instead of being held at an immigration facility. (Writ Hearing Vol. 2 ,p. 18)

      At the habeas corpus hearing on January 8, 2015, applicant testified that his

immigration attorney was Mr. Jesus Andarza who practices in Austin, Texas. (Writ

Hearing Vol. 2 ,p. 15) At this hearing was the first time that the state was informed

that applicant had employed an immigration attorney and first time the state had leaned

his name.

      It is difficult to imagine that Mr. Andarza would take the time to travel on a

Sunday from Austin to the Bell County jail, within hours of applicant’s arrest and then

not inform his client of the scope of the dire immigration trouble he was facing.(Writ

Hearing Vol. 2 ,p. 9-10, p.18) According to applicant’s testimony there was never

any doubt in either applicant’s or his immigration attorney’s minds that the sole

purpose of the immigrations attorney’s trip to the jail was to counsel applicant as to

the possibility that applicant could face deportation, as a result of the criminal charge

against him. (Writ Hearing Vol. 2 ,p. 18)

       It is surprising that applicant did not have more contact with Mr. Andarza to

discuss with and seek his immigration attorney’s counsel concerning the impact of the

DWI charge on applicant’s immigration status. If anything should have grabbed

                                            3
applicant’s attention as to the gravity of his situation after being arrested for DWI, it

would have been that Mr. Jesus Andraza, his immigration lawyer, was sent by

applicant’s father to the Bell County Jail the following day after applicant was arrested

to counsel him as to the potential threat of deportation. (Vol. 2, p. 9)

       It is noted that Mr. Jesus Andraza was not present at applicant’s habeas corpus

hearing on January 8, 2015, because he was not subpoenaed by applicant. Mr.

Andraza was not subpoenaed by the state because the state did not know of Mr.

Andarza’s existence. As a result of the absence of Mr. Andarza, he was not present

to defend his representation of applicant. Another result of the absence of Mr.

Andarza was that applicant was free to say anything he cared to concerning Mr.

Andarza’s representation of applicant.

       It is plain to see that there was a reason Mr. Andarza was not called as a witness

by applicant. The state only discovered this crucial witness’ name during the cross-

examination of applicant at the hearing of January 8, 2015. Mr. Andarza was not

present to give his testimony that would fill in the mile-wide gap of information

concerning his representation of applicant.

       Applicant has endeavored to throw Mr. Sinsabaugh under the bus instead of

applicant’s initial immigration attorney. Fortunately, applicant’s own testimony belies

the accusations of the applicant.

                                              4
      Applicant’s testimony on January 8, 2015, reveals that applicant visited Mr.

Andarza’s office, “about once every three months.”           The date of arrest was

September 3,2011and the plea date was August 9, 2012. (State’s Exhibit. 1) Once

every three months would mean that at a minimum applicant saw his immigration

lawyer at least three times over the course of that time.

      According to applicant’s testimony at his writ hearing, he only met with his

criminal defense attorney, Mr. Scott Sinsabaugh, twice. The second time was the day

he entered a plea of guilty. (Vol. 2, p. 21-23) Applicant admitted in January 8, 2015,

testimony that he never spoke with Mr. Sinsabaugh concerning the fact that he was an

illegal alien. However, based upon Mr. Sinsabaugh’s own notes taken at the first

meeting, Sinsabaugh recollected that Mr. Martinez had referred to some sort of

problem with Immigration. Sinsabaugh assumed that was the reason applicant wanted

to plead guilty before September.

      One would presume that if applicant’s writ counsel had spoken with Mr.

Andarza and Mr. Andarza had anything to say that would help or be useful in Mr.

Martinez’ case, writ counsel would have produced Mr. Andarza in court so he could

detail his representation of over the eleven month period that he represented applicant.

      There is only one reason applicant saw Mr. Andarza and that was to seek Mr.

Andarza’s counsel in regard to his immigration situation.         If applicant received

                                            5
immigration advice it clearly came from Mr. Andarza, his immigration attorney. It

strains believability that the immigration lawyer hired by applicant’s father, failed to

instruct his client not to do anything in regard to his precarious legal situation without

conferring with him, his hired immigration lawyer.

      It is highly unlikely that applicant’s immigration attorney failed to advise his

client as to the pitfalls of pleading guilty to the DWI charge. It is also clear based

upon applicant’s testimony, he never told Mr. Sinsabaugh, his criminal lawyer that he

was an illegal alien.( Vol. 2, p. 28) Nor did he ever ask his immigration lawyer to

contact Mr. Sinsabaugh concerning his client’s criminal case.

      The last stop in applicant’s DWI case was his plea of nolo contendere to the

trial court, where the sitting judge warns every defendant, individually, that if that

person pleads guilty or nolo contendere and he or she is not a citizen of the United

States , that he or she could be deported.

       Over and above the trial court’s oral warnings to applicant, the type-written

admonishments that are included on the printed plea paper specifically set out the

following:

             The Defendant acknowledges that if he/she is not a citizen of the
      United States of America, a plea of guilty or nolo contendere for the
      offense charged may result in deportation, exclusion from admission to
      this country, or denial of naturalization under federal law.


                                             6
(Excerpt from State’s Exhibit No. 2, Judgment And Sentence)

      The state avers that when the applicant answered the court’s questions and said

that he understood the above admonishment as well as when he signed the plea paper

with the above warning, he knew precisely what he was doing.(Vol. 2, p. 29)

      Applicant’s only ground of error is his allegation that he was denied his due

process rights under the United States Constitution and his equal rights under the

Texas Constitution, when he was subjected to ineffective assistance of counsel in his

criminal proceedings, as a result of his non-citizen status. Applicant cited U.S. Const.

Amend. V, XIV; Texas Const. Sec. 3, 3a.

      Applicant’s own direct testimony at the writ hearing reveals unequivocally, that

applicant did not disclose to Mr. Sinsabaugh that applicant was an illegal alien. (Vol.

2, p. 10) It is worth noting here that applicant had legal counsel for eleven months.

His immigration legal counsel who was hired by applicants father saw applicant at least

four times according to applicant. By his own testimony, applicant was visited at the

Bell County Jail the day after he was arrested, by Mr. Andarza, the immigration

attorney hired by his father and applicant. By applicant’s own admission he visited

his immigration counsel’s office at least three times during the course of the eleven

months before he pleaded guilty.

      Applicant’s hired immigration attorney was not known by name to the

                                           7
prosecution until he was discovered by name, during the cross-examination of

applicant at the hearing that is the basis for this brief. The state never knew and was

never told that applicant had an attorney who was actively involved in representing

applicant’s interest with the United States Immigration Service within forty-eight hours

of applicant’s arrest in Bell County. (Vol. 2, p. 18)

       The thrust of Applicant’s present position is that he was denied his

constitutional rights because he was not advised of the severe immigration

consequences that would result from his pleading no contest to the criminal charges

against him. Citing, Padilla v. Kentucky, 130 S. Ct. 1473 (2010).(Vol. 2, p. 18).

       Applicant had never at any time, disclosed to the prosecution the name of

applicant’s attorney that represented applicant in his immigration matters before or

after the filing of his application for habeas corpus relief.

       Applicant has taken the position that he has had contact with his immigration

attorney over the course of almost a year but somehow his immigration attorney has

never informed applicant of the immigration consequences of a criminal conviction of

an illegal alien.

       At first blush, one could conclude that applicant was improperly denied habeas

corpus relief because he not advised as to the severe consequences that could occur

as a result of a plea of guilty or nolo contendere by his attorneys. However, it

                                              8
becomes obvious that the one person who can speak concerning his professional

representation of applicant is his immigration attorney, Mr. Jesus Andarza. Not

surprisingly, Mr. Andarza was not called by appellant to testify on applicant’s behalf

or to give his testimony in this matter.

       To prevail on a post-conviction writ of habeas corpus, the applicant bares the

burden of proving, by a preponderance of the evidence the facts that would entitle him

to relief. Ex Parte Richardson,70 S.W. 3d 865, 870 (Tex. Crim. App. 2002); Ex

Parte Aftab Ali, 368 S.W.3d 827 (Tex App.– Austin, 2012)                    Collateral legal

consequences resulting from a prior misdemeanor conviction have been defined

broadly to include a wide variety of detrimental consequences, including potential

deportation. Ex Parte Wolf, 296 S.W. 3d 160,166-67 (Tex. App.– Houston [14th

Dist.] 2009, pet.ref’d).

       The test for determining the validity of a guilty plea is “whether the plea

represents a voluntary and intelligent choice among the alternative courses of action

open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27

L.Ed 2d 162 (1970).

       In reviewing a trial court’s decision to grant or deny habeas corpus relief, the

appellate court will look at the facts in the light most favorable to the trial court’s ruling

and uphold that ruling absent an abuse of discretion. Ex Parte Wheeler, 203 S.W. 3d

                                              9
317, 324 (Tex. Crim. App. 2006); Ex Parte Aftab Ali, 368 S.W.3d 827 (Tex App.–

Austin, 2012).

      A review of the evidence as it exists in the record provides ample evidence that

if applicant had gone to trial evidence of his guilt was overwhelming. Introduced

without objection of applicant’s habeas council at the hearing was State’s Exhibit No.

1., Affidavit Submitted fo Probable Cause Determination. The affidavit signed by the

arresting officer in applicant’s case details the evidence of probable cause to arrest and

charge applicant.

      The state believes that there is more than ample evidence that applicant received

competent counsel’s advice in regard to his attorney’s advice and counsel from the

beginning to end.

                                       PRAYER

      The STATE OF TEXAS prays this Honorable Court affirm the findings and

judgment rendered by the trial court and deny all relief sought by Appellant.


                                                 Respectfully submitted,
                                                 /S/ Stephen Morris
                                                 Stephen Morris
                                                 Assistant Bell County Attorney
                                                 P.O. Box 1127
                                                 Belton, Texas 76513
                                                 Tel: (254) 933-5135
                                                 Fax: (254) 933-5150

                                            10
                                                 SBN: 14501700
                                                 ATTORNEY FOR THE STATE


                            CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing Brief for the State was this
date forwarded in the manner required by the Texas Rules of Appellate Procedure to
Mr. Jose Vela, Writ of Habeas Corpus Counsel for Applicant, 505 East Huntland
Drive, Ste 300, Austin, Texas 78752.

Signed: November 4, 2015
                                                        /S/ Stephen Morris
                                                        Stephen Morris
                                                        Assistant County Attorney

                         CERTIFICATE OF COMPLIANCE

       In accordance with Rule 9.4, Rules of Appellate Procedure, I certify that the
foregoing brief for the State contains 2,621 words.


                                                        /S/ Stephen Morris
                                                        Stephen Morris
                                                         Assistant County Attorney




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