                                                                           PD-0740-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 7/14/2015 7:08:06 PM
                                                           Accepted 7/16/2015 5:05:19 PM
                                                                           ABEL ACOSTA
                                                                                   CLERK
                     CAUSE NO. PD-0740-15
          ____________________________________________

              IN THE COURT OF CRIMINAL APPEALS
                         AUSTIN, TEXAS
          ____________________________________________

                     THE STATE OF TEXAS

                      Respondent/ Appellant

                               v.

                         VANDA VIGIL

                      Petitioner/ Appellee
_____________________________________________________________

      FROM THE COUNTY COURT AT LAW NUMBER SEVEN
               TRIAL COURT NO. 20120C10835

     THE COURT OF APPEALS EIGHTH DISTRICT OF TEXAS
                     NO. 08-13-00273-CR
____________________________________________________________

          PETITION FOR DISCRETIONARY REVIEW
_____________________________________________________________


                             WILLIAM W. NAVIDOMSKIS
                             Counsel for Petitioner,Vanda Vigil
                             701 St. Vrain
                             El Paso, Texas 79902
                             Tel: (915) 730-8644
   July 16, 2015             Fax: (915) 975-8028
                             SBN 24053384

                             defense@weslawyer.com
             IDENTITY OF JUDGE, PARTIES, AND COUNSEL

PETITIONER: Vanda Vigil, represented in Trial and on Appeal by:

William W. Navidomskis
711 Myrtle Street
El Paso, Texas 79901

RESPONDENT: The State of Texas represented Appeal by:

Jaime Esparza, District Attorney
Ronald Banerji, Assistant District Attorney
500 E. San Antonio
El Paso, Texas 79901

Trial Counsel:

Jaime Esparza, District Attorney
Alejandro Cuellar, Assistant District Attorney
Sarah Rogness, Assistant District Attorney
Patrick Sloan, Assistant District Attorney
500 E. San Antonio
El Paso, Texas 79901

TRIAL COURT: County Court at Law Number Seven, El Paso, Texas, the
Honorable Tom Spieczny, Presiding.




                                         i
                                        TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL..............................................i

TABLE OF CONTENTS.....................................................................................ii, iii

INDEX OF AUTHORITIES.................................................................................iv, v

STATEMENT REGARDING ORAL ARGUMENT.................................................1

STATEMENT OF THE CASE AND.........................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................1

GROUNDS PRESENTED.........................................................................................2

ARGUMENT..............................................................................................................3

1.       The court of appeals’ ruling that the evidence supporting a conviction is legally
         sufficient whenever the trier of fact believes the testimony of the victim alone
         conflicts with decisions of the United States Supreme Court..........................3

2.       By treating the legal sufficiency test of whether “any rational trier of fact could
         have found the essential elements of the offense beyond a reasonable doubt”
         as established whenever the victim’s testimony alone is believed by the trier
         of fact, the court of appeals has decided a case which conflicts with decisions
         of the United States Supreme Court and with decisions of this Court...........6

3.       The court of appeals’ decision to vacate the trial court’s order granting a new
         trial on legal insufficiency grounds when there were no eyewitnesses
         connecting Petitioner Vigil to the assault and the State confessed error on this
         point conflicts with applicable decisions of this Court ...................................9

4.       The court of appeals’ ruling that a reviewing court can “infer” that a defendant
         is a primary actor in an assault case involving multiple assailants without
         identifying the specific conduct the defendant engaged in conflicts with
         applicable decisions of this Court ..................................................................11

                                                          ii
5.       The court of appeals’ determination that the manner and means paragraphs
         alleged in a charging instrument which are descriptive of an essential element
         of the charged offense are mere surplusage conflicts with applicable decisions
         of this Court....................................................................................................14

6.       The court of appeals departed from the Jackson v. Virginia legal sufficiency
         test by measuring the sufficiency of the evidence against a charge which was
         hypothetically incorrect because it failed to considering the manner and means
         allegations of the charging instrument ...........................................................16

7.       The court of appeals’ treatment of the manner and means paragraphs of a
         charging instrument as mere surplusage conflicts with decisions of the U.S.
         Supreme Court which require a charging instrument to provide a defendant
         with fair and adequate notice of the offense charged.......................................18

PRAYER....................................................................................................................19

CERTIFICATE OF COMPLIANCE.........................................................................21

CERTIFICATE OF SERVICE..................................................................................21

APPENDIX................................................................................................................22




                                                            iii
                               INDEX OF AUTHORITIES


FEDERAL CASES                                                                       PAGES

Hamling v. United States, 418 U.S. 87, 117 (1974)................................................19

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)........................4, 5, 6, 7, 8, 9, 16

McKoy v. North Carolina, 494 U.S. 433, 449 (1990)..............................................18

Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion).....................................18

STATE CASES

Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011)......................................17

Durham v. State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929)...........................13

Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970 at *8).....................7, 8

Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App.2007)......................................15

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007).......................................7

Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010)................................5

Jefferson v. State, 189 S.W.3d 305 (Tex.Crim.App. 2006).....................................18

Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011)....................................6

Malik v. State, 956 S.W.2d 234 (Tex.Crim.App. 1997).....................................16, 17

McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974).............................13

Ransom v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994).......................12


                                                iv
Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002)................................11

Sanchez v. State, 376 S.W.3d 767, 772 (2012).......................................................16

Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009)......................................15

Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)......................................18

Williams v. State, 235 SW 3d 742 (Tex. Crim.App. 2007).......................................7




                                                  v
               STATEMENT REGARDING ORAL ARGUMENT

      Petitioner, Vanda Vigil, hereby waives oral argument.



                          STATEMENT OF THE CASE

      This petition concerns the decision of the court of appeals to vacate and set

aside a trial court’s order granting a new trial after the Petitioner, Vanda Vigil, was

convicted of the criminal offense of Class “A” assault. Vigil based her motion for

new trial in part on allegations that the evidence was legal insufficienct to support the

verdict. After conducting a hearing on Petitioner’s motion for new trial and hearing

argument from both the State and Defense, the trial court granted Vanda Vigil’s

motion for new trial.



                 STATEMENT OF PROCEDURAL HISTORY

1.    The court of appeals handed down its opinion on May 15, 2015.

2.    No motion for rehearing was filed.




                                        Page -1-
                 QUESTIONS PRESENTED FOR REVIEW

1.   Did the court of appeals err in holding that it is well-established rule or test of
     legal sufficiency that the victim’s testimony alone, if believed, is legally
     sufficient to support a conviction?

2.   Did the court of appeals err in treating the Jackson v. Virginia legal sufficiency
     test of whether “any rational trier of fact could have found the essential
     elements of the offense beyond a reasonable doubt” as established whenever
     the victim’s testimony is believed by trier of fact?

3.   Was it proper for the court of appeals to disregard the trial court’s order
     granting a new trial on legal insufficiency grounds when there were no
     eyewitnesses connecting Petitioner Vigil to the alleged assault, especially since
     the State confessed error on this point?

4.   Was it error for court of appeals to rule that a reviewing court can “infer” that
     a defendant was a primary actor in any assault involving multiple assailants
     without identifying the specific conduct which was engaged in by that
     defendant?

5.   Did the court of appeals err by treating the manner and means paragraphs
     alleged in the charging instrument as mere surplusage, when these allegations
     were descriptive of an essential element of the charged offense?

6.   Did the court of appeals depart from the Jackson v. Virginia legal sufficiency
     test by measuring the sufficiency of the evidence against a charge which was
     hypothetically incorrect because it failed to take into consideration the manner
     and means allegations of the charging instrument?

7.   Can a court of appeals treat the manner and means paragraphs set out in a
     charging instrument as mere surplusage when decisions of the U.S. Supreme
     Court which require a charging instrument provide a defendant with fair and
     adequate notice of the offense charged?




                                       Page -2-
                                     ARGUMENT

1.      The court of appeals’ ruling that the evidence supporting a conviction is
        legally sufficient whenever the trier of fact believes the testimony of the
        victim alone conflicts with decisions of the United States Supreme Court

        Petitioner, Vanda Vigil, was convicted after a jury trial for Class “A” assault.

The complaining witness, Elizabeth Jimenez, testified that she was attempting to exit

Coconut’s Bar when she was attacked from behind by Petitioner Vigil and Vigil’s

daughter, Alexis Gonzalez. RR 3, 10. Jimenez was asked by the prosecutor, “How

did they attack you?” (Id.), and replied:

     As I was leaving, I felt Alexis grabbing for my right breast, I guess, and she
     started hitting me on my head, and then Vanda got in and started pulling my
     hair and hitting me on the head. And that’s when I fell. RR 3,10.

When asked, “Did you fight back at all?”, Jimenez replied: “I – I wasn’t even able to.

I did not even see them attacking me.” Id. Jimenez testified that right after she fell to

the floor a bouncer separated her from her attackers. Jimenez’ cousin, Cecilia

Archuleta, was also present in Coconuts’ bar. Id. Like Jimenez, Archuleta failed to

link Vigil to the assault and commented that “It all happened so quick.” RR 3, 26-29.

        Stephanie Chavez, a defense witness, testified that she did not see Vigil pull

anyone’s hair, punch anyone, or engage in any violence. RR 3, 73. Petitioner Vigil

also took the stand. She testified that she had witnessed Jimenez instigate the matter

with her daughter, Alexis Gonzalez, by calling her daughter a “disgusting lesbian”

                                         Page -3-
and then pushing her daughter. RR 3, 81-82. Vigil indicated the pushing incident

between Jimenez and her daughter resulted in the two falling to the floor, at which

time a bouncer intervened and separated them. RR 3, 83. Vigil testified that the entire

incident “happened like seconds. It was literally seconds” and that she did not strike

or injure Jimenez in any way, but only approached “to go help [her] daughter get up,

try to separate her, or something.” RR 3, 83.

       On page 6 of its opinion, the court of appeals acknowledges Vigil’s contention

that the evidence was legal insufficient as to (1) the identity of Vigil as the perpetrator

of the Class “A” assault offense; and (2) the causation element of this alleged

offense. But on the next page of its opinion, it rejects Vigil’s contention that the

evidence was legally insufficient as to the identity element:

   We agree with Vigil that, from a direct evidence standpoint, the identity issue
   ultimately boils down to a he-said, she-said dispute turning on the testimony
   of a single witness: Jimenez. However, it is well-established that the victim’s
   testimony alone, if believed, is legally sufficient to support a conviction. See
   Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970, at *8 (Tex.App.–El
   Paso Feb. 8, 2012, no pet.) (not designated for publication).

       This analysis conflicts with the analysis adopted by the Supreme Court in

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979), wherein the following legal

sufficiency test was created: “Instead, the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact



                                         Page -4-
could have found the essential elements of the crime beyond a reasonable doubt.” Id.,

at 319 (emph. added). Under Jackson, a reviewing court is not permitted to forego

review of the evidence for legal sufficiency merely because the trier of fact believed

the victim of a crime. A reviewing court is obligated to determine whether any

rational trier of fact could find all of the essential elements of the offense charged

beyond a reasonable doubt.

            The court of appeals asserts on page 7 of its opinion that it cannot act as

a “thirteenth juror” and cites to case law applicable to a factual sufficiency review.

(See Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010). But this case

authority is inapplicable to Vigil’s case because Vigil has raised a legal sufficiency

challenge to her conviction -- not a factual sufficiency challenge. Under a legal

sufficiency analysis, the court of appeals should have found the evidence legally

insufficient because Jimenez readily admitted that she did not observe either Vigil

or the other alleged assailant strike her or injure her in any way. When asked if she

had fought back after being attacked from behind, Vigil testified, “I wasn’t even able

to. I did not even see them attacking me.” RR 3, 10.

      There is no basis for the court of appeals’ holding that if a victim’s testimony

is believed by the trier of fact, the legal sufficiency of evidence cannot be challenged.

Under Jackson v. Virginia, no such requirement is imposed. The only inquiry is

                                        Page -5-
whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.

2.      By treating the legal sufficiency test of whether “any rational trier of fact
        could have found the essential elements of the offense beyond a reasonable
        doubt” as established whenever the victim’s testimony alone is believed by
        the trier of fact, the court of appeals has decided a case which conflicts
        with decisions of the United States Supreme Court and with decisions of
        this Court


         On page 6 of its opinion the court of appeals set forth the following test for

determining whether the evidence was legally sufficient to support a conviction:

     In determining whether the evidence is legally sufficient to support a
     conviction, a reviewing court must consider all of the evidence in the light
     most favorable to the verdict and determine whether, based on that evidence
     and reasonable inferences therefrom, a rational fact finder could have found the
     essential elements of the crime beyond a reasonable doubt.


It then cited to Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011) and to

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) as authority for this legal

sufficiency test. But on the next page of its opinion, it substituted the following legal

sufficiency test for the Jackson legal sufficiency test in addressing Vigil’s legal

sufficiency challenge to the identity element of the assault offense charged:

“However, it is well-established that the victim’s testimony alone, if believed, is

legally sufficient to support a conviction.” As support for this version of the legal



                                         Page -6-
sufficiency test, the court of appeals cited to its unpublished decision in Gomez v.

State, No. 08-10-00276-CR, 2012 WL 390970 at *8).

    The U.S. Supreme Court held that the test of legal sufficiency is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, at 319 (1979). In Jackson, the Supreme

Court did not attach any significance to whether the eyewitness to an alleged offense

is the alleged victim or a mere observer. Nor did it attach any significance to whether

or not the trier of fact believed the alleged victim’s testimony. It did not attempt to

identify any type of evidence which was inherently credible or would withstand a

legal sufficiency challenge. Since Jackson was decided, the Supreme Court has not

once carved an exception to or otherwise modified the legal sufficiency test it created.

The test of legal sufficiency is and remains the same.

      The same is true of this Court’s analysis. Based on the Jackson test, it has

stated, "...we consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, a

rational juror could have found the essential elements of the crime beyond a

reasonable doubt.” Williams v. State, 235 SW 3d 742 (Tex. Crim.App. 2007); Hooper

v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007).

                                         Page -7-
     Although the court of appeals in this case purports to apply the legal sufficiency

test the Supreme Court created in Jackson v. Virginia, it actually created an entirely

different test. It notes that its earlier unpublished decision in Gomez v. State, supra,

held that a crime victim’s testimony alone, if believed, establishes that the evidence

legally sufficient to support a conviction. But the Gomez case, like this case, was

wrongly decided. The court of appeals’ erroneously held that its test (i.e. that the

victim’s testimony alone, if believed, is legally sufficient to support a conviction) is

the same as the Jackson legal sufficiency test (i.e. whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.).

But it is not.

     This point becomes evident when the two tests are applied to the facts of this

case. Under the Jackson v. Virginia test, Jimenez’ initial trial testimony that Vigil hit

her on the head and pulled her hair cannot be reconciled with Jimenez’ later

testimony that she did not observe who struck her from behind. The alleged victim’s

testimony would be legally insufficient under Jackson because no rational trier of

fact could find beyond a reasonable doubt that Vigil injured Jimenez. However,

Jimenez’ trial testimony would meet the court of appeals’ legal sufficiency test since

the only showing the State had to make to prove it case was that the jury believed

Jimenez’ testimony that Vigil attacked and hit her.

                                        Page -8-
          The flaw in the court of appeals’ legal sufficiency test is that it is based on

circular reasoning. Under its analysis, establishing that the defendant was convicted

would in turn establish that the trier of fact believed the victim’s testimony, which in

turn would establish that the evidence was legally sufficient. In contrast, the Jackson

v. Virginia legal sufficiency test is not based on circular reasoning, but on whether

any rational trier of fact could have found all of the elements of the offense beyond

a reasonable doubt. Nevertheless, the court of appeals’ attempts to meld its legal

sufficiency test with that of the Jackson test by stating that “it would be rational for

a jury to conclude Vigil assaulted Jimenez based on Jimenez’s testimony.” (See

Opinion, p. 9). This attempt fails, however, since there is no aspect of the Jackson

v. Virginia test which is based on whether the trier of fact believed the alleged victim

or for that matter, the testimony of any witness. This Court should therefore reject

the court of appeals’ determination that “...the victim’s testimony alone, if believed,

is legally sufficient to support a conviction....” as a misguided legal sufficiency test.

3.    The court of appeals’ decision to vacate the trial court’s order granting a
      new trial on legal insufficiency grounds when there were no eyewitnesses
      connecting Petitioner Vigil to the assault and the State confessed error on
      this point conflicts with applicable decisions of this Court


      The court of appeals rejected the trial court’s determination that the evidence

was legally insufficient without giving a reason.(See opinion, pp. 4-8). It ignored the

                                        Page -9-
difficulty the trial court faced in attempting to harmonize the initial testimony of

Jimenez, the complaining witness, with her later testimony. Although Jimenez

initially testified that Petitioner Vigil and her daughter Alexis had hit her on the head

from her backside and that Vigil had pulled her hair, during further questioning

Jimenez admitted that she did not see any of her attackers – her precise words being,

“I did not even see them attacking me.” RR 3, 10. This admission by Jimenez along

with the fact that she was the only witness to link Vigil to the alleged assault (a point

which the court of appeals concedes) tends to explain why the prosecutor confessed

error and told the trial court at the motion for new trial hearing that she did not

consider the evidence legally sufficient to support Vigil’s conviction of Class “A”

assault. The failure of Jimenez to identify a part of her body where she sustained

injury or suffered bodily pain also presented legal sufficiency issue.

      The court of appeals disregarded these deficiencies in the evidence, however.

In particular, it overlooked Jimenez’ testimony that she did not see her attackers while

she was being attacked from the rear. Instead, based on the assumption that the

prosecutor confessed error, it vacated the trial court’s order granting Vigil a new trial.

In doing so, it failed to consider the important admission by Jimenez that she did not

see any of her attackers during the attack. It also ignored the rule of this Court that

reviewing courts are to grant great weight to the representations of prosecutors in

                                        Page -10-
confessing error. Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002).

Further, the court of appeals disregarded the rule that

     appellate courts [are to] uphold the trial court's ruling on appeal absent an
     "abuse of discretion." That is to say, as long as the trial court's ruling was at
     least within the zone of reasonable disagreement, the appellate court will not
     intercede. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Although Jimenez’ testimony that she did not see her attackers might not be a

concern to the court of appeals, it should have been a concern. Clearly, the trial

court acted within a reasonable zone of disagreement by finding Jimenez’

testimony of not having observed the persons who assaulted her dispositive of the

legal sufficiency issue –- especially since no other eyewitness identified Vigil as

participating in the assault.1          The court of appeals therefore improperly

disregarded the trial court’s ruling and also failed to give respect the State’s

decision to confess error on this legal sufficiency point.

4.      The court of appeals’ ruling that a reviewing court can “infer” that a
        defendant is a primary actor in an assault case involving multiple
        assailants without identifying the specific conduct the defendant
        engaged in conflicts with applicable decisions of this Court


        In the third point for review of her brief to the court of appeals, Petitioner

Vigil argued that the State failed to prove up its case because it had limited its

        1
       See page 7 of the Opinion, which states, “We agree with Vigil that, from a direct
evidence standpoint, the identity issue ... turn[s] on he testimony of a single witness: Jimenez.”

                                           Page -11-
prosecution theory to proving that Vigil was a primary actor, rather than a party

to the offense. However, the court of appeals rejected this argument by Vigil

based on the following reasoning:

   Vigil correctly notes that the State did not charge Vigil under law of the
   parties, and that as such, Vigil cannot be held criminally liable for injuries
   caused by Alexis Gonzalez. Even so, this is not fatal. Jimenez testified that
   both Vigil and Gonzalez attacked her. Assuming it believed her testimony, a
   reasonable jury could infer that because Jimenez said both women attacked her,
   and because she suffered injuries, at least some of the injuries could be
   attributed to Vigil.

      Under Texas law, the State was required to prove that the defendant was

either a primary actor or party to the Class “A” assault offense alleged. Ransom

v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994). The court of appeals

agreed that Vigil could not be found guilty as a party to the offense. However, it

nonetheless concluded that Vigil was still guilty as a primary actor “because

Jimenez said both women attacked her, and because she suffered injuries, at least

some of the injuries could be attributed to Vigil.” In so ruling, the court of appeals

excused the State from having to prove how Vigil injured Jimenez.

    Vigil has been unable to find a single Texas case where a court has “inferred”

that a defendant, acting with one or more other persons, was found guilty as a

principal or primary actor without some evidence of how that defendant injured



                                      Page -12-
the victim of the alleged crime. In McCuin v. State, 505 S.W.2d 827, 830 (Tex.

Crim. App. 1974), this Court held that to determine whether appellant was a

primary actor or was a party to the offense, the trial court first had to remove from

consideration the acts and conduct of the non-defendant actor. Then, if the

evidence of the conduct of the defendant then on trial would be sufficient, in and

of itself, to sustain the conviction, no submission of the law of principals was

required. This carried forward the rule it had previously established in Durham v.

State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929) (holding "[w]hen the

evidence shows that the accused on trial was a principal actor in the commission

of the offense, no charge on principals would be necessary, although the proof

may also disclose that in doing the criminal act another took an equal part.").

        None of this caselaw has any continued validity if a defendant can be

labeled a primary actor in a multiple assailant case, without the State having to

specify what conduct that defendant engaged in, vis a vis the other defendant(s)

involved in the offense. Under the court of appeals’ analysis, there is no longer

any distinction between parties and primary actors or principals since the

causation element of a criminal offense can be inferred. Review should therefore

be granted to establish that a defendant’s “primary actor” status cannot be simply

“inferred” in a criminal case involving multiple assailants.

                                      Page -13-
5.      The court of appeals’ determination that the manner and means
        paragraphs alleged in a charging instrument which are descriptive of
        an essential element of the charged offense are mere surplusage
        conflicts with applicable decisions of this Court

        Elizabeth Jimenez, the complaining witness, was asked only one question

regarding whether she suffered pain. RR 3, 32. During her second redirect

examination, the prosecutor asked her: “When you were attacked, did you feel pain?”

Id. Jimenez’ response to this question was, “Yes, I did.” Id. Jimenez did not indicate

where she felt pain. Nor did she identify a particular blow from Vigil which caused

her to suffer pain. Id. Nevertheless, the court of appeals rejected her legal sufficiency

challenge to the “bodily injury” element of the assault offense charged by ruling:

     Jimenez testified that Vigil hit her head and pulled her hair, and that she felt
     pain during the attack. This testimony is sufficient to establish that Jimenez
     suffered bodily injury.


The court of appeals thus ignored Vigil’s argument that the evidence was legally

insufficient to prove any of the manner and means allegations of the information, i.e.

that Jimenez suffered pain when her hair was pulled (paragraph A); that Jimenez

sustained bodily injury after being thrown or pushed to the ground (paragraph C); or

that Jimenez sustained bodily injury by being hit on the head (paragraph D).2 The



        2
        Paragraph B of the information, which alleged that Vigil caused bodily injury to Jimenez
by grabbing or squeezing Jimenez’ breast, was abandoned by the State at the start of the trial.

                                           Page -14-
court of appeals instead held that Jimenez’ testimony that she felt pain during the

alleged attack was sufficient to prove the assault offense alleged, even though no

parties charge was submitted to the jury.

       In Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009), the Court of

Criminal Appeals cited to prior caselaw as establishing that where a fact alleged in

an indictment or information is descriptive of an essential element of the offense, that

fact is not mere surplusage and must be proven by the State as part of its burden of

proof. In Schmidt, the State argued that the "striking” allegation was not required to

be pled and is unnecessary surplusage that is "merely descriptive of an element but

not statutorily required." Id., at 359. The Court held, however, that “The State's

argument in this case that the non-statutory, manner and means allegation of ‘striking’

should not be considered a ‘fact required’ to establish the charged retaliation-by-

threat offense is contrary to our decision in [ Hall v. State, 225 S.W.3d 524, 536

(Tex.Crim.App.2007)]. In Hall, the Court of Criminal Appeals considered the non-

statutory, manner and means allegation of "shooting the individual with a gun" to be

a "fact required" to establish the charged murder offense. Id. Accordingly, the Court

of Criminal Appeals in Schmidt explained that facts which describe an element of an

offense must be proven up because these facts bear upon the defendant has been

given fair and adequate notice of the offense charged:

                                       Page -15-
     ...that appellant could have been convicted of this retaliation-by-threat
     offense under an indictment omitting the "to-wit: striking" allegation does
     not necessarily make this allegation unnecessary surplusage. We note that
     this Court's decision in Doyle v. State would support a holding that a
     defendant's timely motion to quash such an indictment would require the
     State to provide the "to-wit: striking" allegation for purpose of providing
     adequate notice. See Doyle v. State, 661 S.W.2d 726, 729-31
     (Tex.Cr.App. 1983)(defendant's timely motion to quash a
     "nonfundamentally defective" retaliation-by-threat indictment entitled the
     defendant to notice of "how and to whom the threat was made"). Id.

This Court should reject the court of appeals’ determination that the State need

only prove Vigil caused bodily injury and that it could ignore the manner and

means allegations of the information in its legal sufficiency analysis.

6.      The court of appeals departed from the Jackson v. Virginia legal
        sufficiency test by measuring the sufficiency of the evidence against a
        charge which was hypothetically incorrect because it failed to
        considering the manner and means allegations of the charging
        instrument


         The Court of Criminal Appeals in Malik v. State, 956 S.W.2d 234

(Tex.Crim.App. 1997) altered the legal sufficiency analysis previously applied in

Texas, which had been to compare the legal sufficiency of the evidence against the

actual charge given to the jury. See Sanchez v. State, 376 S.W.3d 767, 772 (2012).

In Malik, the Court of Criminal Appeals held that the legal sufficiency of the

evidence would be determined by comparing the evidence adduced at trial against


                                     Page -16-
a hypothetically correct charge. Id., at 230. In Adames v. State, 353 S.W.3d 854

(Tex. Crim. App. 2011), the Court rejected the argument that the Malik sufficiency

standard is a purely state law standard that is foreign to federal constitutional

norms and does not apply to a constitutional evidentiary-sufficiency review. Id.,

at 860. It noted that under Malik "such a charge would be one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the

State's burden of proof or unnecessarily restrict the State's theories of liability, and

adequately describes the particular offense for which the defendant was tried."

Malik, at 240.

       In Vigil’s case, the court of appeals did not base its analysis on the

allegations contained in the four manner-and-means paragraphs of the

charging instrument. It held that because Jimenez testified that both Vigil and

Gonzalez attacked her, “a reasonable jury could infer that Jimenez suffered

injuries, at least some of the injuries could be attributed to Vigil.” It thus relied

on a hypothetically incorrect charge analysis to affirm Vigil’s conviction. Vigil

has been unable to find a single decision from any federal court which has held

that legal sufficiency to be measured against a generic offense, which fails to take

into consideration the manner and means allegations of a charging instrument.

Review of this point is therefore warranted.

                                       Page -17-
7.    The court of appeals’ treatment of the manner and means paragraphs
      of a charging instrument as mere surplusage conflicts with decisions of
      the Supreme Court which require a charging instrument to provide a
      defendant with fair and adequate notice of the offense charged

       While the United States Supreme Court has determined that "there is no

general requirement that the jury reach agreement on the preliminary factual issues

which underlie the verdict" and that an indictment can allege different manner and

means of committing a crime without rendering the indictment duplicitous, it has

never dispensed with or treated manner and means allegations as mere surplusage.

Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion); McKoy v. North

Carolina, 494 U.S. 433, 449 (1990). The Supreme Court’s analysis in Schad is

consistent with this Court’s analysis in Jefferson v. State, 189 S.W.3d 305

(Tex.Crim.App. 2006) and Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App.

2007), which likewise recognizes that manner and means allegations in an

indictment are not mere surplusage. Thus, even where different jurors can agree

that the offense alleged was committed by different manner and means, neither

court has ever treated manner and means allegations in an indictment or

information as something which can be ignored altogether.

      The court of appeals went well beyond the Supreme Court’s analysis of the

“unanimity” issue presented in Schad v. Arizona, however. It treated the the


                                     Page -18-
manner and means allegations of the information in Vigil’s case as mere

surplusage in conducting its legal sufficiency analysis. It determined that the

evidence was legally sufficient to support Vigil’s conviction for assault so long

as the evidence proved Vigil had committed the assault offense alleged by any

means. The Supreme Court has held "[A]n indictment is sufficient if it, first,

contains the elements of the offense charged and fairly informs a defendant of the

charge against which he must defend, and second, enables him to plead an

acquittal or conviction in bar of future prosecutions for the same offense."

Hamling v. United States, 418 U.S. 87, 117 (1974).

        The court of appeals’ analysis thus dispenses with both requirements of

Hamling, supra, but most particularly the requirement that the charge fairly inform

the defendant of the offense charged. By holding that the State need only prove

a generic “assault” offense rather than the specific “assault” offense alleged in the

information – it dispensed with the fair and adequate notice requirement of

Hamling v. United States, 418 U.S. 87, 117 (1974). This Court should address

whether manner and means allegations of a charging instrument which describes

an offense element can be treated as mere surplusage when they provide notice of

the offense charged.




                                      Page -19-
                                    PRAYER

      WHEREFORE, premises considered, Appellant Vigil respectfully requests

the Court of Criminal Appeals to grant the petition for discretionary review in this

case and order the parties to brief each of the issues presented for review.

                                                 Respectfully submitted,

                                                   /s/   William W. Navidomskis
                                                 WILLIAM W. NAVIDOMSKIS
                                                 Attorney for Appellant
                                                 701 N. St. Vrain
                                                 El Paso, Texas 79902
                                                 Tex. Bar No. 24053384
                                                 Tel. (915) 730-8644
                                                 Fax (915) 975-8028
                                                 defense@weslawyer.com




                                     Page -20-
           CERTIFICATE OF COMPLIANCE WITH RULE 9.4


       This petition for discretionary review complies with the type-volume
limitations of 9.4 and contains 4,370 words, excluding the parts of the petition
exempted by 9.4(1); and this petition for discretionary review complies with the
typeface requirements of 9.4(e) because this brief has been prepared in a
proportionally spaced typeface using Corel Word Perfect in Times New Roman,
14-point.


                                          /s/    William W. Navidomskis
                                                 WILLIAM W. NAVIDOMSKIS




                        CERTIFICATE OF SERVICE


      This is to certify that on July __, 2015, a true and correct copy of the
Appellee’s Brief was delivered to District Attorney Office: District Attorney Jaime
Esparza, 500 E. San Antonio, El Paso, Texas 79901 in accordance with the Texas
Rules of Civil Procedure.




                                         /s/     William W. Navidomskis
                                       WILLIAM W. NAVIDOMSKIS




                                     Page -21-
                            APPENDIX

1.   Opinion and Judgment

2.   Information
1.   Opinion and Judgment
                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                      §
                                                                        No. 08-13-00025-CR
                                                      §
                                                                             Appeal from
    EX PARTE: DANIEL ALVAREZ                          §
                                                                         384th District Court
                                                      §
                                                                      of El Paso County, Texas
                                                      §
                                                                      (TC # 960D10169-384-1)
                                                      §

                                               OPINION

        This is an appeal from a habeas corpus proceeding raising issues familiar to this Court.

The trial court granted the Application for Writ of Habeas Corpus based on the belief that

Padilla v. Commonwealth of Kentucky1 applied retroactively to guilty pleas taken before Padilla

was decided. A case from this Court supported that view at the time the Application was

granted, but as noted below, subsequent decisions from the United Sates Supreme Court and

Texas Court of Criminal Appeals have taken a different tact. Faced with this reality, Daniel

Alvarez now falls back on a waiver argument and an alternate basis to affirm the trial court’s

decision. For the reasons stated below, we reverse the trial court’s issuance of the Writ of

Habeas Corpus.


1
  559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Padilla requires defense counsel to advise defendants of
the immigration consequences of a plea agreement if they could easily be determined from reading the federal
removal statute. 559 U.S. at 368, 130 S.Ct. at 1483.
                                     FACTUAL SUMMARY

       Daniel Alvarez pleaded guilty to possession of more than four grams, but less than 200

grams of cocaine on June 9, 1997. He was given deferred adjudication with five years of

probation, a fine, and community service. Before admitting to the offense, the trial judge

admonished him that “you can be deported if you plead guilty to that offense, and you can’t

return to the United States legally, [and] that any application you make for citizenship will be

denied.” Plea paperwork also contained his acknowledgment that: “I further understand that if I

am not a citizen of the United States of America a plea of guilty or nolo contendere to this

offense in this cause may result in my being deported, excluded from further admission into the

United States, or denied naturalization under Federal law.”    Alvarez entered his plea and as far as

the record shows, he successfully completed the term of that supervised release.

       The possession charge grew out of these facts: an undercover police officer observed

Alvarez driving a 1986 Oldsmobile which pulled up alongside another car to make what

appeared to be an illegal drug sale. The officer followed Alvarez and witnessed several other

suspected drug transactions. The police then followed Alvarez to his residence to identify where

he lived. The undercover officer watched Alvarez for several weeks and observed him engaging

in what appeared to be more drug deals, always using the Oldsmobile to make deliveries.

       The police arranged with the City Sanitation Department to obtain the trash from

Alvarez’ residence. In his rubbish, they found plastic packaging with cocaine residue. Based on

what they had learned, the police obtained a search warrant for the Oldsmobile and Alvarez’

residence. When the warrant was executed at the residence, the police found a plastic baggie

with 7.5 grams of what was later identified as cocaine in a shirt hanging in the closet. There

were other people at the house at the time of the search, including Alvarez’ wife.



                                                 2
        The police executed the search warrant for the Oldsmobile by stopping the vehicle while

Alvarez, and another person identified as Julian Jicalan Lopez, were driving around. A search of

the vehicle turned up an additional amount of cocaine found in a plastic baggie in an air

conditioner vent. Alvarez was then arrested and placed in the back of a patrol car. Another

baggie of cocaine was found on the floorboard of the police cruiser where Alvarez was sitting.

Jicalan Lopez had no identification when he was arrested. He was taken back to his apartment

which he agreed could be searched. The search turned up a large amount of cash.

        Both Alvarez and Jicalan Lopez were indicted on charges stemming from the possession

and suspected sale of the cocaine. Alvarez was indicted for unlawful possession of a controlled

substance in the Penalty Group I (Cocaine) exceeding 4 grams but less than 200 grams.

        Jicalan Lopez, whose real name is Santiago Jicalan Sanchez, hired attorney Manny

Barraza to defend both him and Alvarez. Jicalan Sanchez (aka Jicalan Lopez) executed an

affidavit, submitted in this proceeding, which swore that he paid Barraza $15,000 to defend him

and also paid $5,000 to Barraza to arrange for a guilty plea for Alvarez. His affidavit reads in

part:

        I also paid Manuel Barraza $5,000.00 to plea Sr. Daniel Alvarez guilty and to
        obtain probation for him. By directing Attorney Barraza to plead Sr. Daniel
        Alvarez Manuel Barraza guilty to the cocaine possession charge, Attorney
        Barraza was able to get me deported with no charges, even though I had a prior
        arrest record. Attorney Barraza knew I was guilty of the charge because I
        explained the circumstances of the arrest to him and explained to him that the
        cocaine which had been seized from the vehicle belonged to me. However, I
        made it very clear to Attorney Barraza that I did not intend to plead guilty to the
        cocaine possession charge and wanted the case dismissed. It was explained to
        him that Sr. Daniel Alvarez would take the ‘fall’ for the offense. Attorney
        Barraza agreed to this arrangement and seemed to be satisfied, since I was the
        person paying for Sr. Daniel Alvarez’ legal defense.

        While this was taking place, I led Sr. Daniel Alvarez to believe that Attorney
        Barraza intended to defend him to the best of his ability, when actually, Attorney
        Barraza and I had already agreed to have Sr. Daniel Alvarez plead guilty to the

                                                3
        indicted charge so the charge against me could later be dismissed. Sr. Daniel
        Alvarez, who had no knowledge of the cocaine in the vehicle, did not know that
        cocaine was inside the vehicle. Nevertheless, I arranged to have Attorney Barraza
        to work out a plea of guilty with the State so that I could be released from the
        charge.

        As noted above, Alvarez pleaded guilty with Manny Barraza as his counsel. Jicalan

Sanchez (aka Jicalan Lopez) apparently absconded only to be re-arrested in 2002 on other drug

charges. The record indicates that he pled guilty to those other drug charges in 2003 and

received a six year sentence to be served concurrently with a federal sentence. As a part of that

plea deal, the 1997 charge was dismissed because Jicalan Sanchez (aka Jicalan Lopez) was

“convicted in another cause.” Manny Barraza was his counsel of record at the 2003 plea.

        Unfortunately for Alvarez, who is a resident alien, the federal government considers his

deferred adjudication to be a conviction for the purposes of removal. State v. Guerrero, 400

S.W.3d 576, 588 (Tex.Crim.App. 2013)(state based deferred adjudications are still considered

final convictions under federal immigration scheme). Consequently, Alvarez sought to undo his

earlier guilty plea.

                                      PROCEDURAL SUMMARY

        Alvarez filed his Application for Writ of Habeas Corpus on July 27, 2012.                           The

Application raised two issues. First, Alvarez contended that his plea counsel did not properly

advise him on the immigration aspects of the guilty plea, which we refer to as the Padilla

ground. His second argument contends that his plea counsel, Manny Barraza, had a conflict of

interest in that he represented two clients with divergent interests. We refer to this as the Cuyler

v. Sullivan2 or conflict of interest ground.


2
  446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Under Cuyler, a defendant can establish a violation of his
Sixth Amendment right to the effective assistance of counsel if he can show “that an actual conflict of interest
adversely affected his lawyer’s performance.” 446 U.S. at 350, 100 S.Ct. at 1719.


                                                       4
          The trial court held a hearing on the Application on December 17, 2012. Habeas counsel

offered an affidavit from Alvarez, the affidavit of his co-defendant Jicalan Sanchez (aka Jicalan

Lopez), and offered testimony from Alvarez’ wife, Anabel Alvarez.3 Manny Barraza did not

testify, in person or by affidavit.4

          The trial court later granted the Application, vacating the 1997 guilty plea. The court

issued eight Findings of Fact and two Conclusions of Law. The findings germane to the Padilla

claim include:

          Findings of Fact
                                                  .        .       .

          6. Attorney Barraza did not advise Alvarez of the immigration consequences of
          his guilty plea prior to June 9, 1997, the date Alvarez pled guilty. Specifically,
          Alvarez was never advised that a plea of guilty to the offense of possession of
          more than 4 but less than 200 grams would subject him to deportation or removal
          from the United States.

          Conclusions of Law

                                                  .        .       .

          2. Applicant Alvarez was deprived of effective assistance by Attorney Barraza’s
          failure to inform Alvarez of the immigration consequences of his guilty plea to
          the cocaine possession charge.


          The findings germane to Alvarez’ Cuyler v. Sullivan conflict of interest claim include

these:

          Findings of Fact
                                                  .        .       .

          4. Shortly after Alvarez’ arrest, the person then-known as Julian Jicalan Lopez
          retained Attorney Manuel Barraza to represent both Daniel Alvarez and himself

3
    Counsel represented that Daniel Alvarez was confined at an “immigration camp” as of the date of the hearing.
4
   We take notice that attorney Manny Barraza was convicted on June 1, 2010 of two counts of wire fraud,
deprivation of honest services, making false statements, and he had been sentenced to five years in a federal prison.
See 75 TEX.B.J. 480-81 (June 2012). On April 23, 2012 he was disbarred. Id.

                                                          5
       by paying Barraza $15,000.00 for his representation and $5,000.00 to represent
       Alvarez. The terms of this agreement were that Barraza would seek to obtain a
       probation sentence for Alvarez on the cocaine possession charge and secure a
       dismissal for Julian Jicalan Lopez on the same charge.

                                         .       .     .

       7. The Court finds that Attorney Manuel Barraza labored under an actual conflict
       of interest by representing both Alvarez and Sanchez in connection with the
       pending cocaine possession charge.

       8. The Court finds that Attorney Barraza’s dual representation of Alvarez and
       Sanchez had an adverse effect on specific instances of counsel’s representation.

       Under the heading “Conclusions of Law” appears a typewritten finding that “Applicant

Daniel Alvarez was deprived of effective assistance of counsel by reason of Attorney Manuel

Barraza’s dual representation of both Alvarez and Sanchez on the same cocaine possession

charge.” There is a handwritten mark, which appears to be a strike-out, through this Conclusion

of Law.

       In response to a motion filed by the State, we issued an order directing the trial court to

clarify what Findings of Fact and Conclusions of Law he relied upon to grant habeas corpus

relief. In reply, the trial court issued a new set of findings on May 31, 2013 that are limited to

only those original findings germane to the Padilla claim. The trial judge did not include any of

his original findings, as set out above, which pertained to the Cuyler v. Sullivan conflict of

interest claim.

       The State appeals and raises two issues. In Issue One, the State argues that Padilla

cannot be applied retroactively. In Issue Two, the State argues that even if the rule applied

retroactively, Alvarez failed to show any prejudice.

                                  STANDARD OF REVIEW

       As the applicant for the Writ of Habeas Corpus, Alvarez was obliged to prove his

allegations by a preponderance of the evidence.        Kniatt v. State, 206 S.W.3d 657, 664
                                                6
(Tex.Crim.App. 2006). In reviewing the trial court’s decision to grant or deny relief on the

Application, we review the facts in the light most favorable to the trial court’s ruling and uphold

it absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003).

Reviewing courts should afford almost total deference to a trial judge’s determination of the

historical facts supported by the record, especially when the fact findings are based on an

evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819 n.67. When

dealing with mixed questions of law and fact, we give the same level of deference if the

resolution of those questions turn on an evaluation of credibility and demeanor, and review de

novo those mixed questions of law and fact that do not depend upon credibility and demeanor.

Id. at 819.

        The reviewing court should affirm as long as the decision is correct on any theory of law

applicable to the case. Ex parte Primrose, 950 S.W.2d 775, 778 (Tex.App.--Fort Worth 1997,

pet. ref’d); see, e.g., Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011)(stating that

appellate court will not disturb trial court’s evidentiary ruling if ruling is correct on any theory of

law applicable to ruling, even if trial court gave wrong reason for correct ruling); Mahaffey v.

State, 316 S.W.3d 633, 637 (Tex.Crim.App. 2010)(holding that State could permissibly make

new argument in support of trial court’s ruling for first time on appeal because “an appellate

court will uphold the trial court’s ruling if that ruling is ‘reasonably supported by the record and

is correct on any theory of law applicable to the case’”) quoting State v. Dixon, 206 S.W.3d 587,

590 (Tex.Crim.App. 2006).

                                         PADILLA ISSUE

        Alvarez asserted below that he was denied effective assistance of counsel because his

attorney failed to apprise him of the immigration implications of his decision to plead guilty.



                                                  7
The Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.

amend. VI.    The Sixth Amendment guarantees reasonably effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984);

Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997).              To prove his plea was

involuntary because of ineffective assistance, Alvarez must show (1) counsel’s representation/

advice fell below an objective standard and (2) this deficient performance prejudiced the defense

by causing him to give up his right to a trial. See Ex parte Morrow, 952 S.W.2d 530, 536

(Tex.Crim.App. 1997).

       In reviewing an ineffective assistance of counsel claim, we follow the United States

Supreme Court’s two-pronged test in Strickland. Hernandez v. State, 726 S.W.2d 53, 56-57

(Tex.Crim.App. 1986).      Under the Strickland test, an applicant must show that counsel’s

performance was “deficient,” and that the “deficient performance prejudiced the defense.”

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712

(Tex.Crim.App. 2000).

       In the context of Alvarez’ claim, the Supreme Court has held that the Sixth Amendment

requires a criminal defense attorney to inform his client of the risk of automatic deportation as a

result of his guilty plea. Padilla v. Kentucky, 559 U.S. 356, 368-69, 130 S.Ct. 1473, 1483,

L.Ed.2d 284 (2010); State v. Guerrero, 400 S.W.3d 576, 587 (Tex.Crim.App. 2013). The

Padilla decision issued on March 31, 2010. Padilla, 559 U.S. at 356, 130 S.Ct. at 1473. When

Alvarez’s application was originally heard by the trial court, it was an open question as to

whether Padilla applied retroactively to those cases where the plea was taken before Padilla was

handed down. A decision of this Court had held Padilla should be applied retroactively. Ex



                                                8
parte De Los Reyes, 350 S.W.3d 723, 729 (Tex.App.--El Paso 2011), rev’d, 392 S.W.3d 675

(Tex.Crim.App. 2013). But soon thereafter, the retroactivity issue was resolved against Alvarez,

both by the United States Supreme Court and the Texas Court of Criminal Appeals. Chaidez v.

United States, ___ U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Ex parte De Los Reyes,

392 S.W.3d 675, 679 (Tex.Crim.App. 2013).

       The Texas Court of Criminal Appeals has further clarified that while normally an order of

deferred adjudication is not considered a final conviction for state law, it is for the purposes of

federal immigration law. State v. Guerrero, 400 S.W.3d at 587-88. For purposes of a Padilla

analysis, a final conviction occurs at the time a defendant pleaded guilty and was placed on

deferred adjudication. Id. Thus, if an Applicant made their plea before March 31, 2010 when

Padilla was handed down, the failure of trial counsel or the trial judge to inform a defendant of

the deportation consequences of the guilty plea does not entitle the defendant to habeas corpus

relief. Guerrero, 400 S.W.3d at 588.

       In this case, it is undisputed that Alvarez’s guilty plea, and even his completed term of

deferred adjudication, occurred long before Padilla was decided. The trial court would have

abused its discretion in not applying pre-Padilla law. See Ex parte Sudhakar, 406 S.W.3d 699,

702 (Tex.App.--Houston [14th Dist.] 2013, pet. ref’d). Under that law, the Sixth Amendment

right to counsel does not extend to “collateral” consequences of a prosecution.          Ex parte

Morrow, 952 S.W.2d at 536.         Deportation is a collateral consequence of a prosecution.

Hernandez v. State, 986 S.W.2d 817, 821 (Tex.App.--Austin 1999, pet. ref’d), citing State v.

Jimenez, 987 S.W.2d 886, 888-89 (Tex.Crim.App. 1999). Consequently, Alvarez’ plea was not

deficient because of any failure of his trial counsel to warn him about the immigration

consequences of his plea. See Ex parte Sudhakar, 406 S.W.3d at 702.



                                                9
       Alvarez’ sole response to this seismic shift in the case law against him is to argue that the

State waived the point. He contends that by failing to obtain an explicit ruling from the trial

judge on the retroactivity issue, the State cannot raise it now. We disagree.

       Generally to preserve error a the party must “let the trial judge know what he wants, why

he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a

time when the trial court is in a proper position to do something about it.” Lankston v. State, 827

S.W.2d 907, 908-09 (Tex.Crim.App. 1992); TEX.R.APP.P. 33.1. The record in this case is clear

that the State raised the question of retroactivity below. The State devoted fifteen pages of its

response to the Application outlining the retroactivity issue, including alerting the trial court that

the U.S. Supreme Court had accepted the petition for certiorari in Chaidez, and that the Texas

Court of Criminal Appeals had granted the petition for discretionary review in De Los Reyes. At

the hearing on the Application, the State restated its position that it did not believe that Padilla

should be applied retroactively, but conceded that the trial court might be bound by this Court’s

opinion in De Los Reyes. When the trial court granted the Application, it necessarily overruled

the State’s retroactivity arguments. We find no waiver on this record.

                              CONFLICT OF INTEREST ISSUE

       In his brief, Alvarez appears to argue that the trial court’s ruling can alternatively be

upheld on his Cuyler v. Sullivan conflict of interest ground that was originally raised in his

Application, but not accepted by the trial court. Alvarez contends that he obtained sufficient

findings of fact to allow this Court to sustain the writ on that alternate ground. The State did not

favor us with a reply brief to respond to this contention.

       While most ineffective assistance of counsel claims are resolved applying the Strickland

test, when the underlying failing of trial counsel involves a conflict of interest, a different



                                                 10
analysis applies. Conflict of interest claims for which no objection was timely made at the

original trial or plea are analyzed under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64

L.Ed.2d 333 (1980). Acosta v. State, 233 S.W.3d 349, 356 (Tex.Crim.App. 2007); James v.

State, 763 S.W.2d 776, 778-79 (Tex.Crim.App. 1989). The Cuyler analysis has two elements.

The applicant must demonstrate that (1) defense counsel was burdened by an actual conflict of

interest; and (2) the conflict had an adverse effect on specific instances of counsel’s

performance. Ex parte McFarland, 163 S.W.3d 743, 759 n.52 (Tex.Crim.App. 2005); Pina v.

State, 29 S.W.3d 315, 317 (Tex.App.--El Paso 2000, pet. ref’d).

       Joint representation does not automatically create an actual conflict of interest. See

Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)(explaining that

joint representation is not per se ineffective assistance); James, 763 S.W.2d at 778 (same). An

actual conflict of interest exists when “one defendant stands to gain significantly by counsel

adducing probative evidence or advancing plausible arguments that are damaging to the cause of

a co-defendant whom counsel is also representing.” James, 763 S.W.2d at 779. However, the

failure to emphasize the culpability of one defendant over the other does not create an actual

conflict. Kegler v. State, 16 S.W.3d 908, 913 (Tex.App.--Houston [14th Dist.] 2000, pet. ref’d);

Howard v. State, 966 S.W.2d 821, 827 (Tex.App.--Austin 1998, pet. ref’d).

       To meet the second Cuyler test--showing an adverse effect--an Applicant must

demonstrate that some plausible defense strategy or tactic might have been pursued, but was not,

because of the conflict of interest. Ramirez v. State, 13 S.W.3d 482, 487 (Tex.App.--Corpus

Christi 2000), pet. dism’d, improvidently granted, 67 S.W.3d 177 (Tex.Crim.App. 2001). If the

Applicant shows both elements, then prejudice is presumed. Strickland, 466 U.S. at 692, 104

S.Ct. 2052; Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App. 1999).



                                              11
        Our first hurdle in analyzing this claim is that the trial court, while agreeing with some of

the predicates of the argument, rejected its conclusion. The trial judge originally made findings

that Manny Barraza labored under an actual conflict of interest that had “an adverse effect on

specific instances of counsel’s representation.” But the trial court affirmatively struck through a

proposed finding that the conflict denied Alvarez effective assistance of counsel. In response to

this Court’s order, the trial court clearly indicated the conflict of interest findings did not inform

his decision to grant the writ.5

        Even if the earlier findings of fact were meant to survive the newer issued findings, we

would be inclined to view them as insufficient to sustain a Cuyler type challenge. To be sure,

there is some evidence of the existence of a true conflict of interest presented on the record. The

allegation that attorney Manny Barraza accepted the representation of two persons with the intent

to plead one to the detriment of the other is precisely the type of conflict alluded in Dukes v.

Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972). In Dukes, one of several co-

defendants represented by the same firm of attorneys complained that his guilty plea was tainted

by a conflict of interest. He had learned that his attorney when pleading out the co-defendants

had tried to gain leniency for the other defendants by suggesting that he was the more culpable

defendant. Id., 406 U.S. at 254, 92 S.Ct. at 1554. The court rejected the claim, but specifically

referenced a finding of the lower court that there was no evidence that the attorney “induced

[Dukes] to plead guilty in furtherance of a plan to obtain more favorable consideration from the

court for other clients.” Id., 406 U.S. at 257, 92 S.Ct. at 1554; James, 763 S.W.2d at 784



5
  We note that the trial judge signed the order with the new Findings of Fact and Conclusions of Law on May 31,
2013 which was after the United States Supreme Court decided Chaidez and the Texas Court of Criminal Appeals
decided De Los Reyes, ending the retroactivity debate in Texas, and thus effectively undermining the only rationale
for his decision. Had the trial court had any belief that the conflict of interest issue had merit, we would have
thought he would have included it in his findings at that time.

                                                        12
(Clinton, J., concurring)(noting this distinction drawn in Dukes). There is, however, some

evidence on this record of a plan to favor one defendant over the other.

        But in looking at this record, we are not directed to any evidence supporting the second

Cuylar predicate that the conflict had an adverse effect on specific instances of attorney

Barraza’s conduct. “An appellant must identify specific instances in the record that reflect a

choice that counsel made between possible alternative courses of action, such as ‘eliciting (or

failing to elicit) evidence helpful to one [interest] but harmful to the other.’” Gaston v. State,

136 S.W.3d 315, 318 (Tex.App.--Houston [1st Dist.] 2004, pet. struck)(en banc), quoting

Ramirez v. State, 13 S.W.3d 482, 488 (Tex.App.--Corpus Christi 2000, pet. dism’d). The trial

court’s original findings contain the relevant language from Cuyler, but offer no clue as to what

specific instances of conduct were adversely affected. See Ex parte Flores, 387 S.W.3d 626, 634

(Tex.Crim.App. 2012)(a trial court’s findings of fact and conclusions of law should do more than

more than restate the parties’ arguments). The only conduct of attorney Barraza reflected by the

evidence in the record was the plea bargain itself. There is no evidence of how the terms of the

plea was reached, such the negotiations behind the plea. There is no evidence that he took any

specific action to use the terms of Alvarez’ plea to gain some particular concession for Jicalan

Sanchez (aka Jicalan Lopez). There is no evidence of the investigation that Barraza may or may

not have undertaken to develop a defense, particularly as to the cocaine found in his house and

on his person. We acknowledge that the indictment and plea occurred almost fifteen years

before the Application was filed, but Alvarez still bore the burden to present some evidence of

each element of his claims.6


6
  We note that the Texas Court of Criminal Appeals has recently referenced the consequence of the potential loss of
evidence when habeas applications involve pleas and convictions occurring many years in the past. Ex parte Smith,
444 S.W.3d 661, 666 (Tex.Crim.App. 2014). The court has now specifically authorized habeas courts to sua sponte
raise the issue of laches, looking in part to the prejudice occasioned by reconstructing events long past. Ex parte

                                                        13
        In the cases where a conflict of interest was found, the courts could identify in the record

specific instances of attorney conduct affected by the conflict. Holloway, 435 U.S. at 480, 98

S.Ct. at 1176 (counsel unable to ask one co-defendant questions on the stand due to confidential

information imparted from co-defendant); Ex parte Acosta, 672 S.W.2d 470, 473-74

(Tex.Crim.App. 1984)(decision to have defendant testify); Ex parte McCormick, 645 S.W.2d

801, 804 (Tex.Crim.App. 1983)(decision to oppose separate trials and use of confessions); Ex

parte Parham, 611 S.W.2d 103, 105 (Tex.Crim.App. 1981)(advice given to one defendant about

testifying); James, 763 S.W.2d at 778 (“In each of these cases the potential for conflict inherent

in multiple representation became an actual conflict due to the inculpatory or exculpatory nature

of testimony or the strategy adopted by defense counsel in the particular case. That is not

reflected in the case before us today.”). We simply find none of these types of specific actions

developed in the record that would support the second Cuyler finding, even under our highly

deferential standard of review.

        And while we recognize that a conflict of interest may implicate not only what an

attorney does, but what he fails to do, Holloway, 435 U.S. at 489-90, 98 S.Ct. at 1181, we do not

find any specifics of Barraza’s conduct, other than attending a plea hearing in this record.

Nothing suggests there was any other viable defense strategy that he could have pursued, or

action that he could have taken on Alvarez’ behalf.7




Bowman, NO. PD-1375-14, ___ S.W.3d ___, 2014 WL 6464635 (Tex.Crim.App. Nov. 19, 2014); Ex parte Smith,
444 S.W.3d at 667.
7
   His habeas counsel argued at the hearing that Alvarez could have placed all the blame on Jicalan Sanchez (aka
Jicalan Lopez) for the cocaine in the car, or his wife for the cocaine in his house, but habeas counsel’s argument is
not evidence. Guerrero, 400 S.W.3d at 586 (habeas counsel’s statements not evidence and would not support
findings).

                                                         14
       We sustain Issue One and find Issue Two to be moot. The trial court’s judgment is

reversed and judgment is rendered denying the Application for Writ of Habeas Corpus.

TEX.R.APP.P. 43.2(c).


January 28, 2015
                                   ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




                                             15
                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
                                                              No. 08-13-00025-CR
                                                §
                                                                  Appeal from
 EX PARTE: DANIEL ALVAREZ                       §
                                                              384th District Court
                                                §
                                                            of El Paso County, Texas
                                                §
                                                            (TC # 960D10169-384-1)
                                                §

                                        JUDGMENT

       The Court has considered this cause on the record and concludes that there was error in

the judgment. We therefore reverse the judgment of the court below and render judgment

denying the Application for Writ of Habeas Corpus, in accordance with the opinion of this Court,

and that this decision be certified below for observance.

       IT IS SO ORDERED THIS 28TH DAY OF JANUARY, 2015.



                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
2.   Information
                                                                                           .···-··-



D.A. CONTROL #12-10345                PID:     1757605       NCIC: 13990001
                                                   INFORMATION                    JtJ%aa
OFFENSE: ASSAULT CAUSES BODILY IN.J

                                                 STATE OF TEXAS
                                                                              cer-J
                                                       vs.
                                                   VANDAVIGIL

D.O.B.: 07/10/68                                   ADDRESS:     210 WEST REDO RD 708
WARRANT: M12W7593                                               EL PASO, TX 79932
AGENCY: EL PASO POLICE

( ) CAPIAS REQUESTED

                    IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS

I,           t::..gz)bN   , ASSISTANT DISTRICT ATTORNEY IN AND FOR THE COUNTY OF EL PASO,
STATE OF TEXAS, PRESENT TO THE COUNTY COURT AT LAW NO.1 OF EL PASO COUNTY, TEXAS, IN AND FOR
SAID COUNTY, AT ITS JULY TERM, A.D. 2012, THAT ON OR ABOUT THE 17TH DAY OF AUGUST, 2012 AND
BEFORE THE FILING OF THIS INFORMATION IN SAID COUNTY OF EL PASO, STATE OF TEXAS, VANDA VIGIL,
HEREINAFTER REFERRED TO AS DEFENDANT,                                        .

PARAGRAPH A
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY PULLING ELIZABETH JIMINEZ'S HAIR WITH THE DEFENDANT'S HAND,

PARAGRAPH B
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY GRABBING OR SQUEEZING ELIZABETH JIMINEZ'S BREAST WITH THE DEFENDANT'S HAND,

PARAGRAPH C
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILYINJURY TO ELIZABETH
JIMENEZ BY PUSHING OR THROWING ELIZABETH JIMENEZ TO THE GROUND,

PARAGRAPH D
DID THEN AND THERE INTENTIONALLY, KNOWINGLYOR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY STRIKING ELIZABETH JIMENEZ ABOUT THE HEAD WITH THE DEFENDANT'S HAND,

      AGAINST THE PEACE AND DIGNITY OF THE STATE.


                                                                  ....   -
                                               ASSISTANT DISTRICT ATTORNEY
                                               FOR EL PASO COUNTY,
                                               STATE OF TEXAS

      FILED                    COURT AT              1 OF EL PASO COUNTY, TEXAS
      ON               "f.Q.     AT  /..3 .'            O'CLOCK,         y2
                                                                        M._




                                               EL PASO COUNTY, TEXAS
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