                                                                    ACCEPTED
                                                                03-15-00290-CR
                                                                        8226000
                                                     THIRD COURT OF APPEALS
                                                                AUSTIN, TEXAS
                                                          12/14/2015 2:55:30 PM
                                                              JEFFREY D. KYLE
                                                                         CLERK
             NO. 03-15-00290-CR

                                         FILED IN
                                  3rd COURT OF APPEALS
                                       AUSTIN, TEXAS
          IN THE COURT OF APPEALS
                                  12/14/2015 2:55:30 PM
                FOR THE
                                      JEFFREY D. KYLE
  THIRD   SUPREME JUDICIAL DISTRICT        Clerk
             AT AUSTIN, TEXAS



      RAFEAL HERNANDEZ-PRADO,
              Appellant

                      vs.

           THE STATE OF TEXAS,
                 Appellee


 Appeal from the 33rd Judicial District Court
              Cause No. 9767A
           Burnet County, Texas
The Honorable J. Allan Garrett, Judge Presiding


            APPELLANT'S BRIEF


                            Gary E. Prust
                            State Bar No. 24056166
                            1607 Nueces Street
                            Austin, Texas 78701
                            (512) 469-0092
                            Fax: (512) 469-9102
                            gary@prustlaw.com

                            ATTORNEY FOR APPELLANT




                       1
                       IDENTITY OF THE PARTIES

APPELLANT:
Rafeal Hernandez-Prado, TDCJ #04826030
Lychner Unit
2350 Atascocita Rd.
Humble, TX 77396

TRIAL COUNSEL FOR APPELLANT ON ORIGINAL PLEA:
Eduardo Arredondo
SBN 00790241
220 S. Pierce St.
Burnet, TX 78611

TRIAL COUNSEL FOR APPELLANT ON 11.072 WRIT AND MOTION TO
ADJUDICATE:
Eddie Shell
SBN 18191650
Austin Shell
SBN 24079316
6000 North Hwy 281
Marble Falls, TX 78654

APPELLATE COUNSEL FOR APPELLANT:
Gary E. Prust
Law Office of Gary E. Prust
1607 Nueces St.
Austin, TX 78701

TRIAL COUNSEL FOR APPELLEE:
Cheryl Nelson (on original plea)
SBN 06839380
Richard Crowther (on 11.072 Writ and Motion to Adjudicate)
SBN 05174200
33rd and 424th District Attorney’s Office
PO Box 725
Llano, TX 78643




                                      2
APPELLATE COUNSEL FOR APPELLEE:
Gary Bunyard
SBN 03353500
33rd and 424th District Attorney’s Office
PO Box 725
Llano, TX 78643




                                   3
                                   TABLE OF CONTENTS
Identity of the Parties ................................................................................................ ii

Table of Contents..................................................................................................... iv

Table of Authorities .................................................................................................. v

Statement of the Case ............................................................................................... 1

Statement Regarding Oral Argument ....................................................................... 1

Issues Presented ........................................................................................................ 2

         Whether Appellant’s plea was rendered involuntary because he was
         not informed of his right to an interpreter and, therefore, could not
         knowingly waive that right.

         Whether Appellant’s plea is involuntary because he was not informed
         of the terms and conditions of community supervision before he was
         placed on community supervision nor could he lodge an objection to
         any terms.

Statement of the Facts............................................................................................... 3

Summary of the Argument ....................................................................................... 6

Argument .................................................................................................................. 7
     Standard of Review ........................................................................................ 7
     Law Applicable .............................................................................................. 8
     Application of the Law to Issue One .............................................................. 8
     Application of the Law to Issue Two ........................................................... 11

Prayer ...................................................................................................................... 14

Certificate of Service .............................................................................................. 15

Certificate of Compliance ....................................................................................... 15




                                                               4
                                                              TABLE OF AUTHORITIES
Cases	
Carnley v. Cochran, 508 U.S. 506, 82 S.Ct. 884 (1962)	....................................................................................................................	8	
Ex Parte Mello, 355 S.W.3d 827, 832 (Tex.App. – Fort Worth 2011, pet. ref’d)	.....................................................................	7	
Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App. 2004)	.......................................................................................................	8	
Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App. 2014) (reh’g denied)	...................................................................	8,	10	
Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014)	...............................................................................	12	
Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993)	.........................................................................................................	8	
State v, Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013)	..................................................................................................	7	
Statutes	
TEX. CODE CRIM. PROC. art 41.12 § 9(a) (West 2003)	                                                                                                                                             11	
TEX. CODE CRIM. PROC. art 42.12 § 9A (West 2003)	                                                                                                                                               11	
TEX. CODE CRIM. PROC. art. § 9(g) (West 2003)	                                                                                                                                                  11	
TEX. CODE CRIM. PROC. art. 11.072 § 5(d) (West 2015)	                                                                                                                                            7	
TEX. CODE CRIM. PROC. art. 11.072 § 7	                                                                                                                                                           7	
TEX. CODE CRIM. PROC. art. 11.072 § 8	                                                                                                                                                           7	



Rules	
TEX. R. APP. P. 33.1(a)(1)(A)	....................................................................................................................................................................	16	
TEX. R. APP. P. 33.1(a)(2)(A)	....................................................................................................................................................................	16	
TEX. R. APP. P. 33.1(a)(2)(B).	...................................................................................................................................................................	16	
                                                           STATEMENT OF THE CASE

               Nature of the case: This is an appeal from an order denying an application

for writ of habeas corpus in a community supervision case.

               Course of the proceedings: Appellant was indicted on June 3, 2003 for

burglary of a habitation with intent to commit sexual assault. CR 5. Appellant

pleaded guilty with his attorney acting as an interpreter and was placed on 10 years

of deferred adjudication community supervision. CR 32; 44-45; see II RR, 1, et

seq. The state requested adjudication October 1, 2013; CR 54-57; a capias issued

the following day; see CR 58-59; and Appellant was arrested approximately one

year later. Id. Appellant filed his application for writ of habeas corpus January 7,

2015. CR 81-85. A combined writ and adjudication hearing was held in February


                                                                                                 5
2015; III RR; and March 25, 2015. IV RR. The writ was denied in an order dated

March 25, 2015 and filed April 30, 2015. CR 86. This appeal follows.

      Trial court’s disposition: The trial court denied Appellant’s application for a

writ of habeas corpus.

                    STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument. Submission by brief will be

enough aid to the Court. If the court determines oral argument is needed, Appellant

will participate.




                                         6
                            ISSUES PRESENTED

Whether Appellant’s plea was rendered involuntary because he was not
informed of his right to an interpreter and, therefore, could not knowingly
waive that right.

Whether Appellant’s plea is involuntary because he was not informed of the
terms and conditions of community supervision before he was placed on
community supervision nor could he lodge an objection to any terms.




                                     7
                              STATEMENT OF FACTS

      Appellant, Rafeal Hernandez-Prado, was indicted in the 33rd Judicial

District Court of Burnet County, Texas on June 3, 2003 with burglary of a

habitation with intent to commit sexual assault. CR 5-6. The case proceeded to a

plea of guilty October 10, 2003. II RR 1. Mr. Arredondo, Appellant’s trial counsel,

acted as the interpreter for the plea. II RR 5. At no point was Mr. Hernandez-Prado

advised of his right to a court interpreter or whether he wished to waive the right.

Id. Rather, the trial court asked Appellant whether he wished for his attorney to

interpret for him. Id. All communication with the court was completed through

Appellant’s attorney acting as interpreter.

      The trial court went over the written waivers, plea of guilty, admonitions,

application for deferred adjudication, and admonitions for the sex offender

registration requirements with Appellant. II RR 5-6. Appellant, through his

attorney, indicated he understood the documents and that his counsel answered his

questions to his satisfaction. II RR 6. Appellant also indicated he understood he

was waiving various constitutional rights and the offense indicted and the range of

punishment. II RR 7.

      However, the trial court admonished Appellant about the deportation

consequences in uncertain terms. Namely, the trial court stated the plea “can result

in your being deported, in being denied admission to the country later, and can also



                                          8
result in your denial of an application of citizenship if you should ever make one.”

II RR 8. The record only reflects Appellant is not a citizen but does not indicate

whether he had any legal status in the United States. II RR 8.

      After being so warned, Appellant pleaded guilty, and the trial court found

the plea free and voluntary. II RR 8-9. Additionally, the court specifically stated to

Appellant that is he were to ever reenter the United States without reporting to

probation, he will be in violation of his terms of probation. II RR 10. This

requirement was ordered in addition to “the usual terms of probation.” II RR 9.

      Sometime thereafter, Appellant met with the court probation officer, Ms.

Jeanette Murray, to go over the terms and conditions of probation. IV RR 21; IV

RR 25-26. She stated she met with Appellant and his attorney who provided

interpretation services. IV RR 23. She would read a term, the attorney would

interpret it, and Appellant would respond “yes” or “no”. Id.

      Ms. Murray also testified there was an immigration hold on Appellant at the

time of the plea. IV RR 24. He was not released on community supervision and

was instead taken into custody for other proceedings. Id. As far as she knew, in

2003, Appellant was likely going to be deported. IV RR 28.

      At a hearing on February 13, 2015, before the full hearing on the state’s

motion to adjudicate, Trooper Frank Randolph testified on December 18, 2007, he

stopped a “Mr. Hernandez and issued him a ticket for no safety belt” in Burnet



                                          9
County, Texas. III RR 6-7. He then testified he looked at book-in photographs

from the jail an testified it was the same person to whom he wrote a ticket in

December 2007. Id. at 7.

      Mr. Thomas Leon, a certified interpreter for language translation from

English to Spanish and Spanish to English, testified incorrectly translated

documents can have drastic consequences. IV RR 41-42. He also testified that it is

“a fallacy that somebody that [sic] speaks both languages can actually accomplish

a [sic] interpretation of a document or interpreting a court procedure because

speaking the two languages allows them to communicate, but does not allow them

to convey with exact precision something that requires exact precision, such as a

court document.” IV RR 44. He further testified exact precision is required for

interpretation because of the understanding needed by the person for whom the

translation is being done. Id. It will affect what that person will do, how they will

perform, and act in the future. Id.

      After taking it under advisement, the trial court proceeded to find Appellant

violated conditions 5, 11, and 13 of the terms of probation in addition to sex

offender supplement terms 1, 2, 8, and 9. V RR 5. The trial court them sentenced

Appellant to 15 years in the Texas Department of Criminal Justice. Id. The trial

court also imposed court costs of $50 and court-appointed attorney’s fees. Id.




                                         10
                      SUMMARY OF THE ARGUMENT

      In his application for a writ of habeas corpus following placement on

community supervision, Appellant primarily argues his plea of guilty is rendered

involuntary because the terms and conditions of the plea agreement, of community

supervision, and the consequences of violating those conditions were not explained

to him in a language and manner he could understand. More specifically, because

he was unable to understand the terms and conditions community supervision, and

because the terms and conditions were not explained to him until after he entered

his plea, and he was provided no opportunity to object to the terms and conditions

of community supervision, his plea is rendered involuntary. On top of this,

Appellant complains in his habeas application he did not understand the terms and

conditions of his plea agreement upon entering his plea. At no point does the

record show where Appellant was apprised of his right to a court appointed

interpreter, and nowhere in the record to does it indicate he waived this right.

Accordingly, the plea should be rendered involuntary and remanded to trial court

for further proceedings.




                                       11
                                  ARGUMENT

                               Standard of Review

      In an Article 11.07 habeas proceeding, the trial judge is the sole finder of

fact. State v, Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013); TEX. CODE

CRIM. PROC. art. 11.072 §§ 7, 8 (West. 2015). A highly deferential standard of

review applies in such cases, and the appellate court will afford almost total

deference to the trial court’s findings of fact if supported by the record. State v.

Guerrero, 400 S.W.3d at 583. Absent an abuse of discretion, the reviewing court

must affirm the habeas court’s decision whether to grant relief. Ex Parte Mello,

355 S.W.3d 827, 832 (Tex.App. – Fort Worth 2011, pet. ref’d).

      Live, sworn testimony is a sufficient basis for upholding a decision to grant

relief in an Article 11.072 proceeding. State v. Guerrero, 400 S.W.3d at 583.

Sworn pleadings are an inadequate basis on which to grant relief and matters

alleged in the application not admitted by the State are considered denied. Id.; TEX.

CODE CRIM. PROC. art. 11.072 § 5(d) (West 2015). However, when the resolution

of the ultimate question relies on the application of legal standards, reviewing

courts review such determinations de novo. Ex Parte Mello, 355 S.W.3d at 832..

                                 Law Applicable

      Our system contains three categories of rules: (1) absolute requirements and

prohibitions, (2) rights which must be implemented unless expressly waived, and


                                         12
(3) rights to are implemented upon request. Marin v. State, 851 S.W.2d 275, 280

(Tex. Crim. App. 1993). The right to an interpreter in court proceedings is a

category-two Marin right. Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App.

2004). As such, an accused is free to waive the right to an interpreter but such

waiver must be made “plainly, freely, intelligently, sometimes in writing, and

always on the record.” Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App.

2014) (reh’g denied) (quoting Marin, supra.).

      Waiver may not be presumed from a silent record, and it must show there is

an allegation of or evidence of an offer of counsel and an intelligent rejection of

the offer, in the context of the waiver of the right to counsel. Carnley v. Cochran,

508 U.S. 506, 82 S.Ct. 884 (1962). When the trial court knows the defendant

cannot understand the English language, an interpreter must be appointed for the

defendant unless the defendant waives the appointment. Garcia v. State, 429

S.W.3d at 607. There may be a valid waiver of the right to an interpreter if there is

not a specific waiver colloquy but the record contains some other evidence a valid

waiver occurred. Id. at 608.

                               Application of the Law

                                     Issue One.

      Appellant’s plea was rendered involuntary because he was not informed

of his right to an interpreter and could not knowingly waive that right.



                                         13
      The record of the proceedings contains no indication Appellant was made

aware he had the right to a court appointed interpreter. If unaware of the right,

Appellant could not have knowingly waived such right. At best, the reporter’s

record contains the following exchange:

      “By the Court:

       Q: Mr. Prado, your attorney tells me that you don’t speak good English and

that you do not read or writ English. Is that correct?

      (At which time [Appellant’s counsel] begins to act as interpreter for the

defendant in this hearing..)

      A: Yes.

      Q: And you wish for Mr. Arredondo to interpret for you?

      A:Yes.

      Q: And you have talked to Mr. Arredondo quite a bit, haven’t you?

      A: Yes.

      Q: And his interpretation is accurate for you?

      A: Yes.”

II RR 5. Nowhere in this exchange is Appellant informed he has the right to an

interpreter. Further, merely asking Appellant if he wishes for his attorney to

interpret cannot be found a valid waiver. The alternative from Appellant’s

perspective may well have been understood to be no interpretation at all. This



                                          14
question does not inform Appellant of his right to a court-appointed interpreter.

Moreover, the court asks Appellant if the interpretation is accurate. Appellant, not

being able to speak English, would not be able to make the determination whether

the interpretation is accurate.

      Recently, the Texas Court of Criminal Appeals issued an opinion in Garcia

v. State, where it discussed what constitutes a waiver of the right to an interpreter.

429 S.W.3d 604 (Tex. Crim. App. 2014, reh’g denied). The record in that case

contained evidence Garcia’s trial counsel informed him of the right to an

interpreter, that Garcia acquiesced in the decision not to request an interpreter, and

that the request not to have an interpreter was communicated to the trial judge. Id.

at 609.

      This is in sharp contrast to the instant case. Here, the record contains no

indication Appellant was informed of the right to an interpreter, much less an

indication he wished to waive the right. Finally, nothing in the record shows the

trial court was aware of Appellant’s waiver of this right. Indeed, the trial court was

made aware Appellant did not speak English well.

      Because Appellant was not informed of the category-two Marin right, he

could not waive it. Nothing in the record indicates Appellant was informed of or

waived the right. Accordingly, the plea should be rendered involuntary and the

case remanded for further proceedings.



                                         15
      Inasmuch as the trial court’s conclusions of law state a defendant must

request the interpreter before he might complain on appeal, Appellant respectfully

submits that the trial court erred in its application of the law. Appellant requests

this legal issue be reviewed by this Honorable Court de novo. In so doing, because

Appellant did not waive his right to an interpreter, nor was he apprised of that

right, the plea should be rendered involuntary and remanded to the trial court.

                                    Issue Two.

Appellant was not afforded an opportunity to be informed of the terms and
conditions of community supervision nor lodge an objection to any terms.

      The Texas Code of Criminal Procedure generally requires the trial court

direct the community supervision department to do a presentence investigation,

with very limited exceptions in felony cases. TEX. CODE CRIM. PROC. art 41.12 §

9(a) and (g) (West 2003). The same is generally required for individuals accused of

offense requiring registration as a sex offender. TEX. CODE CRIM. PROC. art 42.12 §

9A (West 2003). However, in order to preserve this error for appellate review, a

timely complaint must be made to the trial court apprising the court of the grounds

for the complaint unless the specific grounds were apparent from the context. TEX.

R. APP. P. 33.1(a)(1)(A). The record must also show the court ruled on the request

or refused to rule and the objection party objected to the refusal to rule. TEX. R.

APP. P. 33.1(a)(2)(A) and (B).

      However, when probation is granted in a case, the trial court extends,

                                         16
clemency to a defendant and creates a quasi-contractual relationship. Gutierrez-

Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014). Unobjected to

terms and conditions of probation are accepted as terms of the contract, unless the

condition is on our criminal justice system finds intolerable. Id. The requirement to

object “assumes the probationer knew what the conditions were in time to object at

trial.” Speth v. State, 6 S.W.3d 530, 535 n.9 (Tex. Crim. App. 1999).

      As previously noted, Appellant did not know the terms of his probation,

including the sex offender conditions, until after he pleaded and was ordered

placed on community supervision. Due to the fact Appellant was unable to lodge

an objection to the terms of supervision, it is questionable whether he understood

them before entering into the “quasi-contractual relationship”. Appellant may have

objected to various terms and conditions, had be been afforded the opportunity.

      Such denial of understanding the full expectations of community supervision

must render such “quasi-contractual relationship” invalid. If there was never an

understanding of the expectations or chance to object to any such expectations, the

underlying plea of guilty should be rendered involuntary or unknowingly made.

      Accordingly, Appellant respectfully prays this Honorable Court find

Appellant was not informed of the conditions of community supervision before

entering his plea and was not afforded an opportunity to object to the terms of

probation before they were imposed. As such, the plea should be rendered



                                         17
involuntary and unknowingly entered and the case remanded for further

proceedings.




                                 18
                                   PRAYER

      Appellant respectfully prays that this Honorable Court grant the relief

requested in his Application for Writ of Habeas Corpus, find the plea was

unknowingly and involuntarily made and remand this cause for further

proceedings. Appellant prays for any other relief to which he may be entitled in

equity or at law.

                                           Respectfully submitted,




                                           Gary E. Prust
                                           State Bar No. 24056166
                                           1607 Nueces St.
                                           Austin, Texas 78701
                                           (512)469-0092
                                           Fax (512)469-9102
                                           gary@prustlaw.com
                                           Attorney for Rafeal Hernandez-Prado




                                      19
                        CERTIFICATE OF SERVICE

       In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Brief was served upon Mr. Gary Bunyard of the 33rd and 424th District Attorney’s
office via electronic transmission through efiletexas.gov on this 14th day    of
December, 2015.




                                            Gary E. Prust


                     CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I hereby certify this brief contains
2,295 words. This is a computer-generated document created in Microsoft word,
using 14-point typeface. In making this this certificate, I rely on the word count
provided by the software use to prepare the document.




                                            Gary E. Prust




                                       20
