                                                                                      ACCEPTED
                                                                                  08-18-00064-CR
                       08-18-00064-CR                                 EIGHTH COURT OF APPEALS
                                                                                 EL PASO, TEXAS
                                                                                5/29/2018 4:01 PM
                                                                               DENISE PACHECO
                                                                                           CLERK

                        NO. 08-18-00064-CR

                           IN THE                                FILED IN
                                                          8th COURT OF APPEALS
                     COURT OF APPEALS                         EL PASO, TEXAS
                  EIGHTH DISTRICT OF TEXAS                5/29/2018 4:01:16 PM
                                                              DENISE PACHECO
                                                                  Clerk

EX PARTE JESUS AGUILAR                                           APPELLEE


                       THE STATE’S BRIEF


        ON APPEAL FROM CAUSE NUMBER 970D04229-243-2
    IN THE 243RD DISTRICT COURT OF EL PASO COUNTY, TEXAS


                               JAIME ESPARZA
                               DISTRICT ATTORNEY
                               34th JUDICIAL DISTRICT

                               RONALD BANERJI
                               ASST. DISTRICT ATTORNEY
                               DISTRICT ATTORNEY’S OFFICE
                               EL PASO COUNTY COURTHOUSE
                               500 E. SAN ANTONIO
                               EL PASO, TEXAS 79901
                               (915) 546-2059 ext. 3312
                               FAX (915) 533-5520
                               E-MAIL: rbanerji@epcounty.com
                               SBN 24076257

                               ATTORNEYS FOR THE STATE




              The State does not request oral argument.
                   IDENTITY OF PARTIES AND COUNSEL

APPELLANT: The State of Texas, 34th Judicial District Attorney’s Office,
represented in the writ-of-habeas-corpus hearing by:
       Jaime Esparza, District Attorney
       Ronald Banerji, Assistant District Attorney
       500 E. San Antonio, Suite 201
       El Paso, Texas 79901
       (915) 546-2059
and on appeal by:
       Jaime Esparza, District Attorney
       Ronald Banerji, Assistant District Attorney
       500 E. San Antonio, Suite 201
       El Paso, Texas 79901
       (915) 546-2059

APPELLEE: Jesus Aguilar, represented in the writ-of-habeas-corpus hearing and
on appeal by:
      Matthew DeKoatz
      718 Myrtle Ave.
      El Paso, Texas 79901-2542
      (915) 626-8833

TRIAL COURT: 243rd District Court, Judge Luis Aguilar, presiding




                                        ii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .........................................................ii

INDEX OF AUTHORITIES ...........................................................................v-viii

STATEMENT OF THE CASE..........................................................................ix-x

POINTS OF ERROR PRESENTED.....................................................................xi

STATEMENT OF FACTS.................................................................................1-3

SUMMARY OF THE STATE’S ARGUMENTS ................................................4-6

STATE’S POINTS OF ERROR PRESENTED FOR REVIEW: ......................7-42

      Point of Error One: Because Aguilar failed to overcome the subsequent-
writ bar, the habeas court abused its discretion in granting Aguilar habeas-
corpus relief....................................................................................................7-10

       Point of Error Two: Aguilar’s habeas claim that Texas’ deferred-
adjudication community-supervision statute violates due process and is
unconstitutional is not cognizable, as this claim could have been raised in a
direct appeal, such that he is foreclosed from bringing his claim by
application for writ of habeas corpus, and thus, the habeas court abused its
discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis..............................................................................................................11-12

       Point of Error Three: Aguilar failed his burden of proving his habeas
claim that Texas’ deferred-adjudication community-supervision statute is
unconstitutional, and thus, the habeas court abused its discretion to the extent
that it granted Aguilar habeas-corpus relief on this basis. ............................13-17




                                                          iii
        Point of Error Four: Aguilar failed his burden of proving his claim that
his trial counsel rendered ineffective assistance of counsel by allegedly not
informing him that deferred-adjudication community-supervision status was
considered a conviction under Federal law and that this alleged conviction
would have an enhancing effect on any potential Federal criminal sentences
because trial counsel was not required to advise him of such collateral
consequences of his guilty plea, and thus, the habeas court abused its
discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis..............................................................................................................18-31

       Point of Error Five: Aguilar failed his burden of proving his habeas
claim that his trial counsel rendered ineffective assistance of counsel by
allegedly failing to adequately inform him of the immigration consequences of
his guilty plea because trial counsel was not required to advise him of such
collateral consequences at the time of his plea, and thus, the habeas court
abused its discretion to the extent that it granted Aguilar habeas-corpus relief
on this basis..................................................................................................32-42

PRAYER............................................................................................................43

SIGNATURES...................................................................................................43

CERTIFICATE OF COMPLIANCE....................................................................44

CERTIFICATE OF SERVICE ............................................................................44




                                                           iv
                                    INDEX OF AUTHORITIES

FEDERAL CASES

Chaidez v. United States, 568 U.S. 342, 133 S. Ct. 1103,
185 L. Ed. 2d 149 (2013)....................................................................................33

Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366,
88 L.Ed.2d 203 (1985)........................................................................21, 28, 38-39

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473,
176 L.Ed.2d 284 (2010)................................................................22, 28, 33, 35, 38

Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029,
145 L.Ed.2d 985 (2000) ................................................................................28, 38

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984)........................................................................20-22, 28, 39

STATE CASES

Candelas v. State, 91 S.W.3d 810 (Tex.App.–El Paso 2002, no pet.) ....................17

Coleman v. State, 632 S.W.2d 616 (Tex.Crim.App. 1982).....................................16

Crawford v. State, 155 S.W.3d 612
(Tex.App.–San Antonio 2004, pet. ref’d).........................................................24-25

Ex parte Aguilar, No. 08-14-00204-CR, 2016 WL 921904
(Tex.App.–El Paso Mar. 9, 2016, pet. ref’d)
(not designated for publication).................................x, 2, 8, 10, 24-26, 30, 32-33, 41

Ex parte Aguilar, No. 08-12-00369-CR, 2014 WL 7234592
(Tex.App.–El Paso Dec. 19, 2014, no pet.)
(not designated for publication) .......................................................................19-22

Ex parte Beck, 541 S.W.3d 846 (Tex.Crim.App. 2017)..........................................12

                                                      v
Ex parte Brown, 158 S.W.3d 449 (Tex.Crim.App. 2005).......................................19

Ex parte Cisneros, No. 08-11-00180-CR, 2013 WL 1281995
(Tex.App.–El Paso Mar. 28, 2013, no pet.)
(not designated for publication)........................................................................34-35

Ex parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013)..................34-35, 39

Ex parte Drinkard, No. 02-11-00369-CR, 2012 WL 3207428,
(Tex.App.–Fort Worth Aug. 9, 2012, no pet.)
(mem.op., not designated for publication) .............................................................25

Ex parte Harrington, 310 S.W.3d 452 (Tex.Crim.App. 2010)..........................20, 38

Ex parte Morrow, 952 S.W.2d 530 (Tex.Crim.App. 1997).....................................24

Ex parte Murillo, 389 S.W.3d 922
(Tex.App.–Houston [14th Dist.] 2013, no pet.) ...............................28-29, 31, 39, 42

Ex parte Nelson, 137 S.W.3d 666, (Tex.Crim.App. 2004) .....................................12

Ex parte Nieves, No. 08-11-00189-CR, 2013 WL 3943288
(Tex.App.–El Paso July 24, 2013, no pet.)
(not designated for publication) .......................................................................34-35

Ex parte Okere, 56 S.W.3d 846 (Tex.App.–Fort Worth 2001, pet. ref’d) ..........26, 37

Ex parte Salazar, 510 S.W.3d 619 (Tex.App.–El Paso 2016, pet. ref’d)................7-9

Ex parte Sanders, No. 08-05-00074-CR, 2006 WL 3754790
(Tex.App.–El Paso Dec. 14, 2006, pet. ref’d)(not designated for publication) ..........12

Ex parte Torres, 483 S.W.3d 35 (Tex.Crim.App. 2016)...................28, 31, 38-39, 42

Ex parte Torres, No. 08-10-00330-CR, 2012 WL 1431660
(Tex.App.–El Paso April 25, 2012, no pet.)(not designated for publication) .............19



                                                     vi
Ex parte Wheeler, 203 S.W.3d 317 (Tex.Crim.App. 2006) ....................................19

Ex parte Wong, No. 08-08-00003-CR, 2009 WL 3111827
(Tex.App.–El Paso, Sept. 30, 2009, no pet.)
(not designated for publication).......................................................................26, 37

Ex parte Young, No. 08-04-00250-CR, 2008 WL 2967008
(Tex.App.–El Paso July 31, 2008, pet. ref’d)
(not designated for publication).......................................................................10, 32

Garcia v. State, 57 S.W.3d 436, (Tex.Crim.App. 2001).........................................22

Gillenwaters v. State, 205 S.W.3d 534 (Tex.Crim.App. 2006)...............................14

Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App. 2005)............................22, 36

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997)...................................19-20

Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986)....................................20

Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App. 1998)..................................20-21

Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App. 1994).......................................21

Karenev v. State, 281 S.W.3d 428 (Tex.Crim.App. 2009)......................................14

Kniatt v. State, 206 S.W.3d. 657 (Tex.Crim.App. 2006)........................................19

McFarland v. State, 845 S.W.2d 824 (Tex.Crim.App. 1992) .................................21

McNew v. State, 608 S.W.2d 166 (Tex.Crim.App. 1978).......................................16

Merchant v. State, No. 08-00-00183-CR, 2001 WL 842087
(Tex.App.–El Paso July 26, 2001, no pet.)(not designated for publication)...............16

Perez v. State, 310 S.W.3d 890 (Tex.Crim.App. 2010)..........................................21



                                                     vii
Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App. 2003) ..........................27, 36-37

Salinas v. State, 464 S.W.3d 363 (Tex.Crim.App. 2015).......................................14

Sandoval v. State, Nos. 14-01-00049-CR, 14-01-00050-CR, 14-01-00051-CR,
2002 WL 533711 (Tex.App.–Houston [14th Dist.] Apr. 11, 2002, pet. ref’d)
(not designated for publication)............................................................................36

Santikos v. State, 836 S.W.2d 631 (Tex.Crim.App. 1992)(op. on reh’g),
cert. denied, 506 U.S. 999, 113 S.Ct. 600, 121 L.Ed.2d 537 (1992) ......................14

Singhal v. State, No. 2-06-221-CR, 2007 WL 866526 (Tex.App.–Fort Worth Mar.
22, 2007, pet. ref’d)(mem.op., not designated for publication) ..............................16

State v. Guerrero, 400 S.W.3d 576 (Tex.Crim.App. 2013)................................34-35

State v. Jimenez, 987 S.W.2d 886 (Tex.Crim.App. 1999)......................................25

Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999)............................21-23, 35

STATE STATUTES

T EX. CRIM. P ROC. CODE Art. 11.072..................................................................7-8

T EX. CRIM. P ROC. CODE Art. 42A, subchapter C..................................................16

T EX. CRIM. P ROC. CODE Art. 42.12..........................................................16, 31, 41

T EX. CRIM. P ROC. CODE Art. 44.02 (1999)..........................................................11

T EX. P ENAL CODE § 12.35........................................................................30-31, 41

T EX. P EN. CODE §12.44 ......................................................................................ix

RULES

T EX. R. APP . P. 25.2 ..........................................................................................11

                                                       viii
                                 STATEMENT OF THE CASE

        Appellee, Jesus Aguilar, was indicted for the state-jail-felony offense of

possession of a controlled substance in penalty group 1, to wit: cocaine, weighing

less than 1 gram, alleged to have occurred on or about May 3, 1997. (CR: 7).1 On

January 15, 1999, pursuant to a plea agreement, the charge was reduced to a

class-A misdemeanor, see T EX. P EN. CODE §12.44(b), and Aguilar pleaded guilty.

(CR: 26-33). In accordance with the plea agreement, the trial court deferred entry

of a judgment of conviction and placed Aguilar on two-years’ community

supervision. (CR: 39-40). Aguilar did not appeal. On February 25, 2000, the trial

court granted Aguilar’s request for early termination of his community

supervision. (CR: 53).

         On May 28, 2014, Aguilar filed his initial application for writ of habeas

corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure,

alleging that his trial counsel rendered ineffective assistance by failing to inform

him that his guilty plea would result in his deportation and failing to pursue a

motion to suppress the cocaine that formed the basis for his guilty plea. (CR: 54-



        1
          Throughout this brief, references to the record will be made as follows: references to the
clerk’s record will be made as “CR” and page number, references to the reporter’s record will be
made as “RR” and page number, and references to exhibits will be made as either “SX” or “PE”
(petitioner’s exhibit) and exhibit number.

                                                    ix
65).

       At the conclusion of an evidentiary hearing on July 1, 2014, the habeas

court granted Aguilar’s writ application, vacated his “conviction,” and ordered the

case set for a new trial. (CR: 125). The habeas court also set a hearing date for a

motion to suppress evidence. (CR: 10). The State timely appealed, and this Court

reversed the habeas court and rendered judgment denying Aguilar’s application for

writ of habeas corpus. See Ex parte Aguilar, No. 08-14-00204-CR, 2016 WL

921904, at *6 (Tex.App.–El Paso Mar. 9, 2016, pet. ref’d)(not designated for

publication).

       On October 30, 2017, Aguilar filed a subsequent application for writ of

habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure,

alleging, in part, that Texas’ deferred-adjudication community-supervision statute

is unconstitutional. (CR: 145-60). The State timely filed its answer on November

21, 2017. (CR: 165-200). Holding a hearing on March 22, 2018, the habeas court

orally granted Aguilar’s writ application, signed an order granting relief on March

28, 2018, and filed the order on March 29, 2018. (CR: 201). The State timely filed

its notice of appeal on April 17, 2018. (CR: 205-6).




                                            x
          STATE’S POINTS OF ERROR PRESENTED FOR REVIEW

Point of Error One:
Because Aguilar failed to overcome the subsequent-writ bar, the habeas court
abused its discretion in granting Aguilar habeas-corpus relief.

Point of Error Two:
Aguilar’s habeas claim that Texas’ deferred-adjudication community-
supervision statute violates due process and is unconstitutional is not
cognizable, as this claim could have been raised in a direct appeal, such that
he is foreclosed from bringing his claim by application for writ of habeas
corpus, and thus, the habeas court abused its discretion to the extent that it
granted Aguilar habeas-corpus relief on this basis.

Point of Error Three:
Aguilar failed his burden of proving his habeas claim that Texas’ deferred-
adjudication community-supervision statute is unconstitutional, and thus, the
habeas court abused its discretion to the extent that it granted Aguilar
habeas-corpus relief on this basis.

Point of Error Four:
Aguilar failed his burden of proving his claim that his trial counsel rendered
ineffective assistance of counsel by allegedly not informing him that deferred-
adjudication community-supervision status was considered a conviction
under Federal law and that this alleged conviction would have an enhancing
effect on any potential Federal criminal sentences because trial counsel was
not required to advise him of such collateral consequences of his guilty plea,
and thus, the habeas court abused its discretion to the extent that it granted
Aguilar habeas-corpus relief on this basis.

Point of Error Five:
Aguilar failed his burden of proving his habeas claim that his trial counsel
rendered ineffective assistance of counsel by allegedly failing to adequately
inform him of the immigration consequences of his guilty plea because trial
counsel was not required to advise him of such collateral consequences at the
time of his plea, and thus, the habeas court abused its discretion to the extent
that it granted Aguilar habeas-corpus relief on this basis.

                                        xi
                              STATEMENT OF FACTS

The arrest

      On May 3, 1997, at approximately 12:40 p.m., Officer José Rodriguez of the

Anthony Police Department was on patrol when he observed two persons (Ricardo

Marmolejo and Aguilar) sitting at a park bench. (CR: 34-36). Ofc. Rodriguez

observed Marmolejo pick up an item from the table and bend down so that Ofc.

Rodriguez could not see him place the item in his right-front pants pocket. Id. Due

to the suspicious behavior, Ofc. Rodriguez stopped his patrol unit and approached

the two individuals. Id. As he did, he detected a strong odor of marijuana

emanating from both individuals. Id. When Ofc. Rodriguez asked Marmolejo if he

had any narcotics, Marmolejo admitted that he had some marijuana in the front

pocket of his pants. Id. Ofc. Rodriguez then asked Aguilar for identification, and

Aguilar pulled out his wallet. Id. As Aguilar did so, Ofc. Rodriguez observed a

small diamond-folded piece of white paper fall out of Aguilar’s rear pants pocket.

Id. Ofc. Rodriguez picked up the piece of paper and found that it contained

cocaine. Id. Aguilar was placed under arrest for possession of cocaine. Id.

The initial writ hearing

      The habeas court held a hearing on Aguilar’s initial writ application on July

1, 2014, and at the conclusion of the writ hearing, the habeas court granted

                                           1
Aguilar’s request for habeas-corpus relief, vacated Aguilar’s “conviction,” and

directed the case be set for a new trial. (CR: 125).

The State’s first appeal

      The State timely appealed and this Court reversed the habeas court and

rendered judgment denying Aguilar’s application for writ of habeas corpus. See Ex

parte Aguilar, 2016 WL 921904, at *6.

The subsequent writ hearing

      The habeas court held a hearing on Aguilar’s subsequent writ application on

March 22, 2018. (RR: 1). Aguilar testified on his own behalf that he was 42-years

old, married for 20 years, and had two children. (RR: 8-9). Aguilar further testified

about his immigration case – that he had been ordered deported but was appealing

that decision and was out on an immigration bond. (RR: 9). Aguilar further

testified that he understood Texas’ deferred-adjudication statute to mean that he

did not have a conviction because he had successfully completed his term of

deferred-adjudication community supervision. (RR: 9-11). Aguilar also testified

that he understood that the Federal courts, both district and immigration,

considered his deferred-adjudication guilty plea a conviction and that had he

known this, he would not have pleaded guilty. (RR: 11). Upon cross-examination,

Aguilar admitted that he was not facing any Federal criminal charges and that the

                                            2
information to which he testified in this subsequent writ hearing was the same

information he had already provided at his initial habeas hearing in 2014. (RR:

12). No other witnesses testified at the habeas hearing.

       During closing argument, the State relied on the arguments it made in its

filed answer, see (CR: 165-200), and argued that Aguilar should be denied relief

because his subsequent writ application did not overcome the subsequent-writ bar.

(RR: 13). Specifically, the State argued that Aguilar failed to set forth a new legal

basis that did not previously exist at the time of his initial writ application and also

failed to set forth a new factual basis that he could not have ascertained through

the exercise of reasonable diligence at the time of his initial application. Id.

Aguilar, in turn, argued that his attack on the constitutionality of Texas’ deferred-

adjudication statute was a new rule of law, such that he was entitled to relief. Id.

At the conclusion of the writ hearing, the habeas court granted Aguilar habeas-

corpus relief. Id.




                                              3
                   SUMMARY OF THE STATE’S ARGUMENTS

Summary of the State’s first point of error: Aguilar’s claims in his subsequent

habeas-corpus application are procedurally barred because he failed to present

these claims in his initial application for writ of habeas corpus. Specifically, both

the factual and legal bases for Aguilar’s claims were available and able to be

reasonably formulated at the time of his initial application, such that he is now

barred from presenting them. As such, the habeas court abused its discretion to the

extent that it granted Aguilar habeas-corpus relief on this basis.

Summary of the State’s second point of error: Aguilar’s habeas claim that

Texas’ deferred-adjudication community-supervision statute violates due process

and is unconstitutional is not cognizable in a writ of habeas corpus, as this claim

could have been raised in a direct appeal. As such, Aguilar is foreclosed from

bringing this claim by application for writ of habeas corpus, and the habeas court

abused its discretion to the extent that it granted Aguilar habeas-corpus relief on

this basis.

Summary of the State’s third point of error: Aguilar failed to prove his habeas

claim that Texas’ deferred-adjudication community-supervision statute is

unconstitutional, as appellate courts have routinely and consistently upheld the

constitutionality of the deferred-adjudication community-supervision statute.

                                             4
Furthermore, under the duel-sovereignty doctrine, the Federal government, as a

separate sovereign, is free to seek redress for infractions of its own laws and can

treat Aguilar’s state deferred-adjudication guilty plea as a conviction for Federal

criminal-law purposes. As such, the habeas court abused its discretion to the

extent that it granted Aguilar habeas-corpus relief on this basis.

Summary of the State’s fourth point of error: Aguilar failed his burden of

proving his claim that his trial counsel rendered ineffective assistance of counsel

by allegedly not informing him that his deferred-adjudication

community-supervision status was considered a conviction under Federal law and

that this alleged conviction would have an enhancing effect on any potential

Federal criminal sentences because these were collateral consequences of his

guilty plea of which trial counsel had no duty to advise, such that trial counsel’s

performance was not deficient. Furthermore, Aguilar failed his burden of proving

that he was prejudiced by trial counsel’s alleged failure to advise because his

decision to reject the plea offer would not have been rational under the

circumstances. As such, the habeas court abused its discretion to the extent that it

granted Aguilar habeas-corpus relief on this basis.

Summary of the State’s fifth point of error: Aguilar failed his burden of proving

his claim that his trial counsel rendered ineffective assistance of counsel by

                                             5
allegedly failing to adequately inform him of the immigration consequences of his

guilty plea because at the time he pleaded guilty, trial counsel had no duty to

advise him of the immigration consequences, such that trial counsel’s performance

was not deficient. Furthermore, Aguilar failed his burden of proving that he was

prejudiced by trial counsel’s alleged failure to advise because his decision to reject

the plea offer would not have been rational under the circumstances. As such, the

habeas court abused its discretion to the extent that it granted Aguilar

habeas-corpus relief on this basis.




                                             6
           STATE’S POINTS OF ERROR PRESENTED FOR REVIEW

POINT OF ERROR ONE: Because Aguilar failed to overcome the
subsequent-writ bar, the habeas court abused its discretion in granting
Aguilar habeas-corpus relief.

                                UNDERLYING FACTS

       The State here relies on the recitation of facts set out in the statement of

facts above.

                         ARGUMENT AND AUTHORITIES

I.     Subsequent-article-11.072-writ-of-habeas-corpus standard

       A court may not consider the merits of a subsequent article 11.072 writ of

habeas corpus (after final disposition of an initial application) unless the

application contains sufficient specific facts establishing that the current claims

and issues have not been and could not have been presented previously in an

original application because the factual or legal bases for the claims were

unavailable on the date the applicant filed the previous application. See TEX.

CRIM. P ROC. CODE Art. 11.072 § 9(a); Ex parte Salazar, 510 S.W.3d 619, 625

(Tex.App.–El Paso 2016, pet. ref’d). A legal basis of a claim is unavailable if the

legal basis was not recognized by and could not have been reasonably formulated

from a final decision of the United States Supreme Court, a court of appeals of the

United States, or a Texas appellate court on or before the date the previous

                                             7
application was filed. T EX. CRIM. P ROC. CODE Art. 11.072 § 9(b); Ex parte

Salazar, 510 S.W.3d at 625. A factual basis of a claim is unavailable if the factual

basis was not ascertainable through the exercise of reasonable diligence on or

before the date the previous application was filed. TEX. CRIM. P ROC. CODE Art.

11.072 § 9(c); Ex parte Salazar, 510 S.W.3d at 625. The rejection of an initial

habeas-corpus application is the trigger event for the subsequent application’s

restrictions. Ex parte Salazar, 510 S.W.3d at 625.

II.    Aguilar’s claims in his subsequent application are procedurally barred
       because he failed to present any previously unavailable or “new”
       factual or legal bases for his claims in his subsequent habeas-corpus
       application.

       Aguilar filed his initial writ-of-habeas-corpus application on May 28, 2014,

which was ultimately denied by this Court.2 See Ex parte Aguilar, 2016 WL

921904, at *6. Aguilar then filed his subsequent writ-of-habeas-corpus application

on October 30, 2017. (CR: 145-60). In his subsequent habeas application, Aguilar

failed to allege specific facts establishing that the current claims and issues had

not been and could not have been presented previously in his initial application

because the factual or legal bases for the claims were unavailable on the date that

he filed his initial application. See T EX. CRIM. P ROC. CODE Art. 11.072; Ex parte



       2
           This Court issued the mandate in Ex parte Aguilar on April 27, 2017. See (CR: 143).

                                                  8
Salazar, 510 S.W.3d at 629 (holding that this Court was barred from reviewing the

applicant’s claims on the merits under article 11.072’s abuse-of-writ provisions

with respect to ineffective-assistance-of-counsel claims, but not as to

actual-innocence claims, because the applicant could have raised his claims in the

initial habeas proceeding).

       In his subsequent habeas application, Aguilar cited to article 11.072, section

9, and then simply asserted that the issue was one of first impression and, as such,

was cognizable. See (CR: 154). However, Aguilar failed to show why he did not

present his claims in his initial habeas application, as these claims could have been

reasonably formulated at that time. As such, Aguilar was barred from bringing

claims in a subsequent habeas application that he could have brought in his initial

application, even if he formulated them on a later date, and he cannot rely on

equitable principles to save his application. See Ex parte Salazar, 510 S.W.3d at

629 (explaining that Texas state courts have no authority to bypass the

abuse-of-writ provision on equitable grounds). Simply stated, Aguilar failed to

present any previously unavailable factual or legal bases for his claims. As such,

the habeas court was prohibited from considering, and granting relief on, the

merits of his claims, as he failed to present these claims in his initial habeas

proceeding. Id.

                                             9
       Furthermore, in his initial habeas application, Aguilar alleged that trial

counsel rendered ineffective assistance of counsel by failing to inform him that his

guilty plea would result in his deportation. See (CR: 148). In Ex parte Aguilar, this

Court decided this issue against him. See Ex parte Aguilar, 2016 WL 921904, at

*6. As such, Aguilar is foreclosed from relitigating this issue, as it has already

been adjudicated. See Ex parte Young, No. 08-04-00250-CR, 2008 WL 2967008,

at *2 (Tex.App.–El Paso July 31, 2008, pet. ref’d)(not designated for

publication)(under the law-of-the-case doctrine, an appellate court’s resolution of

a question of law in a previous appeal of the same case will govern the disposition

of the same issue when raised in a subsequent appeal). For these reasons alone, the

habeas court’s order granting Aguilar habeas relief and setting aside his

“conviction” should be reversed.




                                             10
POINT OF ERROR TWO: Aguilar’s habeas claim that Texas’ deferred-
adjudication community-supervision statute violates due process and is
unconstitutional is not cognizable, as this claim could have been raised in a
direct appeal, such that he is foreclosed from bringing his claim by
application for writ of habeas corpus, and thus, the habeas court abused its
discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis.

                                      UNDERLYING FACTS

        The State here relies on the recitation of facts set out in the statement of

facts above.

                             ARGUMENT AND AUTHORITIES

        Aguilar’s claim that Texas’ deferred-adjudication community-supervision

statute violates due process and is unconstitutional was not cognizable as this

claim could have been raised on direct appeal under article 44.02. See T EX. CRIM.

P ROC. CODE Art. 44.02 (1999).3          4



        Aguilar pleaded guilty pursuant to a plea agreement on January 15, 1999,

see (CR: 26-33), and received two years’ deferred-adjudication community

supervision. See (CR: 39-40). Specifically, the plea agreement explained that

Aguilar needed to obtain permission from the trial court to appeal if the trial court

        3
           The 1999 version of article 44.02 states, “A defendant in any criminal action has the
right of appeal under the rules hereinafter prescribed.” TEX. CRIM . PROC. CODE Art. § 44.02
(1999).
        4
         Texas Rule of Appellate Procedure 25.2 gives the defendant in a criminal case the right
of appeal. See TEX. R. APP. P. 25.2(a)(2).

                                                    11
did not exceed the punishment recommendations. See (CR: 26-33). And the record

does not show that Aguilar requested permission from the trial court to appeal, nor

did he appeal, the constitutionality of the deferred-adjudication community-

supervision statute.5 As such, his writ is not cognizable, as he could have raised

these issues on direct appeal but failed to do so. See Ex parte Beck, 541 S.W.3d

846, 852 (Tex.Crim.App. 2017)(complaints that could have been raised on direct

appeal cannot be raised on post-conviction habeas review); Ex parte Nelson, 137

S.W.3d 666, 667 (Tex.Crim.App. 2004)(“It is well-settled ‘that the writ of habeas

corpus should not be used to litigate matters which should have been raised on

direct appeal.’”); see also Ex parte Sanders, No. 08-05-00074-CR, 2006 WL

3754790, at *1 (Tex.App.–El Paso Dec. 14, 2006, pet. ref’d)(not designated for

publication)(holding that when an applicant has an adequate remedy at law by

direct appeal as to the constitutionality of a statute, his habeas-constitutionality

claim is not cognizable by an application for a writ of habeas corpus). For this

reason, the habeas court’s order granting Aguilar habeas relief and setting aside

Aguilar’s “conviction” should be reversed.




       5
        In fact, Aguilar also failed to raise his argument regarding the constitutionality of
Texas’ deferred-adjudication community-supervision in the trial court, such that he has
forfeited his argument at every level in the proceedings.

                                              12
POINT OF ERROR THREE: Aguilar failed his burden of proving his habeas
claim that Texas’ deferred-adjudication community-supervision statute is
unconstitutional, and thus, the habeas court abused its discretion to the extent
that it granted Aguilar habeas-corpus relief on this basis.

                                UNDERLYING FACTS

      Aguilar argued in his subsequent habeas application that Texas’ “deferred

adjudication statutes are violative of Due Process and Due Course of Law...,” and

he directly challenged “the Texas deferred adjudication provisions of Texas law,

as further described infra, as being unconstitutional under the Texas Constitution,

Due Course of Law Clause; and as being unconstitutional under the 14th

Amendment, Due Process of Law Clause.” (CR: 146-47).

      At his subsequent habeas hearing, Aguilar explained that he was “attacking

the Texas deferred adjudication statute, which I don’t believe anybody has ever

attacked before.” (RR: 4). He also argued that Texas’ deferred-adjudication statute

was a myth because Federal courts and the state of Florida considered Texas

deferred adjudications convictions. (RR: 6-7).

                         ARGUMENT AND AUTHORITIES

      Even if Aguilar’s claim that Texas’ deferred-adjudication community-

supervision statute is unconstitutional is cognizable, which the State does not

concede, Aguilar failed his burden of proving that the statute is unconstitutional,


                                            13
and thus, the habeas court abused its discretion to the extent that it granted Aguilar

habeas-corpus relief on this basis.

I.     Constitutionality-of-a-statute standard of review

       Statutes are presumed to be constitutional until it is determined otherwise.

See Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App. 2009). To prevail on a

facial challenge as to the constitutionality of a statute, a party must establish that

the statute always operates unconstitutionally in all possible circumstances. See

Salinas v. State, 464 S.W.3d 363, 367 (Tex.Crim.App. 2015). Courts are to

consider the statute only as it is written, rather than how it operates in practice. Id.

A facial challenge to a statute is the most difficult challenge to mount successfully

because the challenger must establish that no set of circumstances exists under

which the statute will be valid. See Santikos v. State, 836 S.W.2d 631, 633

(Tex.Crim.App. 1992)(op. on reh’g), cert. denied, 506 U.S. 999, 113 S.Ct. 600,

121 L.Ed.2d 537 (1992). In contrast, a claim that a statute is unconstitutional “as

applied” asserts that the statute, although generally constitutional, operates

unconstitutionally in specific circumstances. Gillenwaters v. State, 205 S.W.3d

534, 537 n. 3 (Tex.Crim.App. 2006).




                                             14
II.     Aguilar failed his burden of proving that Texas’ deferred-adjudication
        statute always operates unconstitutionally in all possible circumstances.

        Because Aguilar did not specify whether Texas’ deferred-adjudication

statute was unconstitutional on its face or only as applied to him, and because he

attacked the statute globally and without reference to any evidence from his

underlying plea (in both his subsequent habeas application and at the hearing), he

appears to be making a facial challenge to the constitutionality of the statute.

However, Aguilar failed to assert, much less prove, how Texas’ deferred-

adjudication community-supervision statute is unconstitutional in all possible

circumstances. Instead, the only evidence Aguilar presented at his subsequent writ

hearing was the same evidence he presented at his initial writ hearing, with the

testimony that he would not have pleaded guilty had he known that his state

deferred-adjudication guilty plea would be considered a conviction by the Federal

courts. (RR: 11). As such, Aguilar failed his burden of proving how Texas’

deferred-adjudication community-supervision statute was unconstitutional on its

face.

        Furthermore, appellate courts have repeatedly rejected challenges to the

constitutionality of Texas’ deferred-adjudication community-supervision statute.6


        6
       At the time of Aguilar’s deferred-adjudication plea, the deferred-adjudication statute
was embodied under article 42.12, section 5, of the Texas Code of Criminal Procedure, but

                                                  15
Instead, the appellate courts have consistently upheld the constitutionality of the

deferred-adjudication community-supervision statute in various contexts. See

Coleman v. State, 632 S.W.2d 616, 618-19 (Tex.Crim.App. 1982)(holding that the

deferred-adjudication statute is not unconstitutionally vague); McNew v. State, 608

S.W.2d 166, 176 (Tex.Crim.App. 1978)(holding that deferred adjudication is a

constitutional form of probation); Singhal v. State, No. 2-06-221-CR, 2007 WL

866526, at *2 (Tex.App.–Fort Worth Mar. 22, 2007, pet. ref’d)(mem.op., not

designated for publication)(holding that appellant’s facial challenge to the

constitutionality of Texas’ deferred-adjudication statute on the basis that it denied

appellant due process failed because he failed to prove how it was

unconstitutionally applied to him and thus his facial challenge also failed);

Merchant v. State, No. 08-00-00183-CR, 2001 WL 842087, at *4 n.18

(Tex.App.–El Paso July 26, 2001, no pet.)(not designated for

publication)(recognizing that challenges to the constitutionality of the deferred-

adjudication statute have been rejected by several courts of appeals).

       Furthermore, Aguilar failed to cite any authority in his subsequent habeas

application (and the State has been unable to find any) that supported his claim



currently is embodied in chapter 42A, subchapter C, of the Texas Code of Criminal Procedure.
See TEX. CRIM . PROC. CODE Art. 42.12; TEX. CRIM . PROC. CODE Art. 42A, subchapter C.

                                                16
that the deferred-adjudication community-supervision statute was a

misrepresentation that violates due process simply because a separate sovereign,

the Federal government, considers Aguilar’s deferred-adjudication status a drug

“conviction” under Federal law for immigration and enhancement-of-punishment

purposes. See (CR: 146-48). And, in fact, under the duel-sovereignty doctrine, the

Federal government is free to seek redress for infractions of its own laws and can

treat Aguilar’s Texas deferred-adjudication guilty plea as a conviction for Federal

criminal-law purposes if it so wishes. See Candelas v. State, 91 S.W.3d 810, 813

(Tex.App.–El Paso 2002, no pet.)(the dual-sovereignty doctrine provides that

every state has the authority to seek redress for infractions of its own laws, and

prosecution by both State and Federal authorities for the same conduct does not

violate the Federal Due Process Clause). As such, the Federal government can

view Texas’ deferred-adjudication statute as a “conviction” for Federal criminal-

law purposes, and the only way for Aguilar to seek redress as to this

characterization would be in Federal court. Aguilar thus failed to demonstrate that

Texas’ deferred-adjudication community-supervision statute was unconstitutional

on its face and as applied to him. For these reasons, the habeas court’s order

granting Aguilar habeas relief and setting aside Aguilar’s “conviction” should be

reversed.

                                           17
POINT OF ERROR FOUR: Aguilar failed his burden of proving his claim
that his trial counsel rendered ineffective assistance of counsel by allegedly
not informing him that deferred-adjudication community-supervision status
was considered a conviction under Federal law and that this alleged
conviction would have an enhancing effect on any potential Federal criminal
sentences because trial counsel was not required to advise him of such
collateral consequences of his guilty plea, and thus, the habeas court abused
its discretion to the extent that it granted Aguilar habeas-corpus relief on this
basis.

                                UNDERLYING FACTS

       The State here relies on the recitation of facts set out in the statement of

facts above.

                         ARGUMENT AND AUTHORITIES

       In his subsequent habeas application, Aguilar asserted that his

deferred-adjudication community-supervision status is considered a felony

conviction under Federal law and that this was a direct consequence of his

deferred-adjudication guilty plea. See (CR: 146). He further asserted that he is

facing enhanced punishment for any potential Federal crimes he could be

convicted of and that had he been informed of these consequences, he would not

have pleaded guilty. See (CR: 148). Aguilar’s claims failed because these were

collateral consequences of pleading guilty that trial counsel had no duty of which

to advise, and thus, trial counsel was not deficient in his performance for allegedly

failing to so advise, nor was Aguilar prejudiced as a result.

                                            18
I.    Standards of review

      A.     Writ-of-habeas-corpus standard

      A habeas court’s decision to grant habeas relief is reviewed for an abuse of

discretion. See Ex parte Wheeler, 203 S.W.3d 317, 323-24 (Tex.Crim.App. 2006);

Ex parte Aguilar, No. 08-12-00369-CR, 2014 WL 7234592, at *4 (Tex.App.–El

Paso Dec. 19, 2014, no pet.)(not designated for publication). A writ applicant

seeking post-conviction habeas-corpus relief on the basis of an involuntary guilty

plea must prove his claim by a preponderance of the evidence. See Kniatt v. State,

206 S.W.3d. 657, 664 (Tex.Crim.App. 2006). This Court should view the evidence

in the light most favorable to the habeas court’s ruling and give almost total

deference to the habeas court’s determination of the historical facts when

supported by the record, particularly when the fact findings are based on an

evaluation of credibility and demeanor. See Kniatt, 206 S.W.3d. at 664; Ex parte

Aguilar, 2014 WL 7234592, at *4; Ex parte Torres, No. 08-10-00330-CR, 2012

WL 1431660, at *2 (Tex.App.–El Paso April 25, 2012, no pet.)(not designated for

publication). A habeas court’s conclusions of law, however, are reviewed de novo,

as they do not turn on the habeas court’s assessment of credibility or the demeanor

of witnesses. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex.Crim.App. 2005);

Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). Here, because the trial

                                           19
court decided the habeas-corpus application on solely legal, and not factual,

grounds, a de novo standard of review applies. See Guzman v. State, 955 S.W.2d

85, 89 (Tex.Crim.App. 1997)(appellate courts may review de novo mixed

questions of law and fact that do not turn on an evaluation of credibility and

demeanor).

      B.     Ineffective-assistance-of-counsel standard

      A habeas applicant seeking habeas-corpus relief on the basis of an

ineffective-assistance-of-counsel claim must establish: (1) that his counsel’s

performance was deficient, and (2) he was prejudiced as a result. See Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986); Ex parte Aguilar,

2014 WL 7234592, at *4. When a person challenges the validity of the plea

entered upon the advice of counsel, contending that his counsel was ineffective,

the voluntariness of the plea depends on: (1) whether counsel’s advice was within

the range of competence demanded of attorneys in criminal cases and if not, (2)

whether there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty. See Ex parte Harrington, 310 S.W.3d 452, 458

(Tex.Crim.App. 2010). The habeas applicant bears the burden of proving by a

preponderance of the evidence that his counsel was ineffective. See Jackson v.

                                           20
State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). Both prongs of Strickland

must be proven to establish ineffective assistance. See Perez v. State, 310 S.W.3d

890, 893 (Tex.Crim.App. 2010); Ex parte Aguilar, 2014 WL 7234592, at *4.

       To establish deficient performance, an applicant must show that his trial

counsel’s performance fell below an objective standard of reasonableness based on

prevailing professional norms. See Strickland, 466 U.S. at 687; Ex parte Aguilar,

2014 WL 7234592, at *5. Trial counsel are cloaked with a strong presumption that

their actions were reasonably professional and motivated by sound trial strategy.

See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Jackson v.

State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Thus, any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. See McFarland v. State, 845

S.W.2d 824, 843 (Tex.Crim.App. 1992).

       The second prong of Strickland requires a habeas applicant to prove that

there is a reasonable probability that, but for his counsel’s deficient performance,

he would have pleaded not guilty and requested a trial. See Hill v. Lockhart, 474

U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland, 466 U.S. at

687-88. It is not enough for a habeas applicant to baldly state that he would have

insisted on going to trial, an applicant must establish that a decision to reject a plea

                                             21
bargain would have been rational under the circumstances. See Ex parte Aguilar,

2014 WL 7234592, at *4, citing Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct.

1473, 176 L.Ed.2d 284 (2010). This objective test turns on “what a reasonable

person in the defendant’s shoes would do.” See id.

      In reviewing a claim of ineffective assistance, the habeas court must indulge

a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the claimant must overcome the

presumption that, under the circumstances, the challenged action “might be

considered sound trial strategy.” See Thompson, 9 S.W.3d at 813, citing

Strickland, 466 U.S. at 689. And when the record is silent as to trial counsel’s

strategy, an appellate court will not conclude that counsel’s assistance was

ineffective unless the challenged conduct was so outrageous that no competent

attorney would have engaged in it. See Goodspeed v. State, 187 S.W.3d 390, 392

(Tex.Crim.App. 2005); Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.

2001). In other words, trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective, and it is generally the

applicant’s burden to produce an affidavit or testimony from trial counsel to

substantiate his writ allegations. Goodspeed, 187 S.W.3d at 392.




                                           22
II.    Aguilar failed his burden of proving that trial counsel was ineffective.

       A.     Trial counsel had no duty to advise Aguilar that
              deferred-adjudication community-supervision status was
              considered a “conviction” under Federal law and that this alleged
              conviction would have an enhancing effect on any potential
              Federal criminal sentences because these were collateral
              consequences of his guilty plea.

       As stated above, Aguilar bore the sole burden of rebutting, by a

preponderance of the evidence, the strong presumption that trial counsel was

effective and of presenting a record demonstrating the reasons behind trial

counsel’s actions or inaction. See Thompson, 9 S.W.3d at 813.

       Beyond Aguilar’s bare, conclusory allegations, nothing in the record

substantiated his claim that trial counsel failed to properly advise him that

deferred-adjudication community-supervision status was considered a

“conviction” under Federal law and that this alleged conviction would have an

enhancing effect on any potential Federal criminal sentences. In his subsequent

habeas application, Aguilar failed to produce an affidavit from trial counsel

substantiating his ineffective-assistance claims; thus, the record does not contain

trial counsel’s explanation as to what advice he gave Aguilar about the

consequences of his deferred-adjudication guilty plea.




                                            23
       Furthermore, Texas courts have long held that effective assistance of

counsel does not extend to collateral aspects of the prosecution. See Ex parte

Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997)(en banc)(overruled in part

on other grounds by Taylor v. State, 109 S.W.3d 443 (Tex.Crim.App. 2003)). A

consequence is collateral if it is not a definite, practical consequence of a

defendant’s guilty plea. Id. Courts have characterized the following as collateral

consequences of which a defendant need not be advised before his plea is

considered knowing and voluntary: possible enhancement of punishment,

institution of separate civil proceedings against defendant for commitment to a

mental-health facility, loss of good-time credit, possibility of imposition of

consecutive sentences, deprivation of rights to vote and to travel abroad, and the

possibility of undesirable discharge from the armed forces. Id. A consequence is

also collateral if its imposition is controlled by an agency that operates beyond the

direct authority of the trial judge. See Ex parte Aguilar, 2016 WL 921904, at *4.

       Importantly, the enhancing effect of a state conviction on a Federal criminal

sentence is considered a collateral consequence of a defendant’s guilty plea. See

Crawford v. State, 155 S.W.3d 612, 614 (Tex.App.–San Antonio 2004, pet.

ref’d)(the enhancing effect of a state conviction on a Federal sentence is a

collateral consequence for purposes of the Sixth Amendment right to effective

                                            24
assistance of counsel); see also Ex parte Drinkard, No. 02-11-00369-CR, 2012

WL 3207428, at *2 (Tex.App.–Fort Worth Aug. 9, 2012, no pet.)(mem.op., not

designated for publication). As such, the fact that Aguilar could face enhanced

punishment for any potential future Federal crimes due to his deferred-

adjudication guilty plea in 1999 was, at most, a collateral consequence of which

trial counsel had no obligation to advise. See Crawford, 155 S.W.3d at 614; Ex

parte Drinkard, WL 3207428, at *2.

       Aguilar’s “Felon status in the Federal system of justice,” see (CR: 153), is

likewise a collateral consequence of his guilty plea of which trial counsel also had

no obligation to advise. Aguilar’s “Felon status” is a collateral consequence

because it is controlled by an agency, the Federal government, which operates

beyond the direct authority of the state trial judge. See State v. Jimenez, 987

S.W.2d 886, 888 n.6 (Tex.Crim.App. 1999); Ex parte Aguilar, 2016 WL 921904,

at *4 (both opinions explain that a consequence is collateral if its imposition is

controlled by an agency which operates beyond the direct authority of the trial

judge).

       Here, the record did not affirmatively demonstrate that trial counsel failed to

properly advise Aguilar of the consequences of his deferred-adjudication guilty

plea, and Aguilar has thus failed his burden of overcoming the strong presumption

                                            25
of effective assistance in this regard. See Ex parte Aguilar, 2016 WL 921904, at

*5 (holding that the applicant, by failing to subpoena or obtain an affidavit from

trial counsel, failed to defeat the strong presumption that the decisions of counsel

during trial fell within the wide range of reasonable professional assistance); Ex

parte Wong, No. 08-08-00003-CR, 2009 WL 3111827, at *2 (Tex.App.–El Paso,

Sept. 30, 2009, no pet.)(not designated for publication)(holding that other than the

defendant’s uncorroborated writ allegations, nothing in the record substantiated

the defendant’s contentions that counsel behaved in the manner alleged,

specifically, the defendant did not obtain an affidavit from trial counsel, and the

trial court determined that there was nothing in the habeas-corpus record showing

counsel advised the defendant to plead guilty or failed to fully apprise the

defendant of the facts and law applicable to the case); Ex parte Okere, 56 S.W.3d

846, 856 (Tex.App.–Fort Worth 2001, pet. ref’d)(holding that the applicant failed

to overcome the presumption that trial counsel was effective where the applicant

failed to subpoena any of the attorneys involved in the preparation and

presentation of his case to testify at his writ hearing, and the record contained no

explanation for trial counsel’s actions).

       Because Aguilar failed to provide evidence, other than his self-serving

testimony, in support of his uncorroborated allegations that trial counsel failed to

                                            26
properly advise him of the Federal criminal enhancement consequences of his

guilty plea or that his deferred-adjudication guilty plea was considered a

conviction by the Federal government, and because trial counsel had no duty to

advise Aguilar of such collateral consequences, Aguilar failed his burden of

proving any deficient performance by trial counsel at his habeas hearing. See, e.g.,

Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003)(holding that the

failure to make the required showing of either deficient performance (first prong)

or sufficient prejudice (second prong) defeats the ineffective-assistance claim).

       B.     Aguilar was not prejudiced by trial counsel’s alleged failure to
              advise him of the consequences of his deferred-adjudication guilty
              plea because his decision to reject the plea offer would not have
              been rational under the circumstances.

       Aguilar was not prejudiced by trial counsel’s alleged failure to advise him

that deferred-adjudication-probation status was considered a conviction under

Federal law and that this alleged conviction would have an enhancing effect on

any potential future Federal criminal sentences because, as discussed below, his

decision to reject the plea offer would not have been rational under the

circumstances.

       In order to obtain relief on a claim that an applicant’s guilty plea was

rendered involuntary as a result of ineffective assistance of counsel, it is not


                                            27
enough for an applicant to baldly assert that he would have insisted on going to

trial; an applicant must convince the court that a decision to reject the plea bargain

would have been rational under the circumstances. See Padilla, 559 U.S. at 372,

citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S.Ct. 1029, 1036, 1039,

145 L.Ed.2d 985 (2000). And the United States Supreme Court has explained that

such an inquiry must be made objectively, without regard for the idiosyncrasies of

the particular decision-maker. See Hill, 474 U.S. at 59-60. In other words, an

assessment of the likelihood of a result more favorable to the defendant must

exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the

like. See Strickland, 466 U.S. at 695.

       Factors to consider in determining whether a decision to reject a plea

bargain would have been rational under the circumstances are: (1) the strength of

the State’s case or evidence of the applicant’s guilt, (2) whether the applicant had

any legal or factual defenses, (3) whether the applicant presented evidence

indicating that the immigration consequences of his plea were his “paramount

concern,” and (4) the circumstances of the plea agreement compared to what the

applicant risked by going to trial. See Ex parte Torres, 483 S.W.3d 35, 48

(Tex.Crim.App. 2016); Ex parte Murillo, 389 S.W.3d 922, 928-31

(Tex.App.–Houston [14th Dist.] 2013, no pet.), abrogated on other grounds by Ex

                                            28
parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013). Although the inquiry

is not whether the applicant would have received a more favorable disposition at

trial, the habeas court can properly consider evidence concerning the likelihood of

success at trial when determining whether it would have been rational to reject the

plea bargain. See Ex parte Murillo, 389 S.W.3d at 930.

      During the habeas proceedings, the State presented evidence demonstrating

that it had a strong case. In complaint and offense reports, Ofc. Rodriguez related

that while on patrol on May 3, 1997, he saw two individuals, later identified as

Aguilar and Ricardo Marmolejo, sitting on a park bench and that as he passed by,

he saw Marmolejo pick an item up from the park table and “...bend[] down...” to

prevent Ofc. Rodriguez from seeing that he was concealing something in his right-

front pants pocket. See (CR: 34-36). Because of Marmolejo’s suspicious behavior,

Ofc. Rodriguez stopped his patrol unit and approached both Aguilar and

Marmolejo to ask them to produce identification. Id. As he approached, Ofc.

Rodriguez smelled a strong odor of marijuana emanating from the breath and

person of both Aguilar and Marmolejo, and he then asked Marmolejo whether he

had any narcotics, and Marmolejo answered that he had marijuana inside his right-

front pants pocket. Id. After seizing Marmolejo’s marijuana, Ofc. Rodriguez

approached Aguilar as he was pulling his wallet out of his pocket and observed a

                                           29
small piece of white paper drop to the ground. Id. Ofc. Rodriguez picked up the

piece of paper, and after noticing its “diamond fold,” he unfolded the piece of

paper to find a white powdery substance that he believed was cocaine and placed

Aguilar under arrest. Id. Lab reports showed that the white powdery substance in

the diamond-folded piece of paper tested positive for cocaine. See (CR: 37).

       Aguilar did not otherwise allege or demonstrate that he had a viable defense

to raise at trial. And, as this Court noted in its previous opinion, Aguilar at the

habeas hearing on his initial writ failed to show that a motion to suppress would

have been granted and that the remaining evidence would have been insufficient to

support his conviction. See Ex parte Aguilar, 2016 WL 921904, at *5. Moreover,

the record contained scant, if any, evidence showing that Aguilar informed trial

counsel or anyone else, including the trial court, that any Federal-law

consequences (that his deferred-adjudication guilty plea was considered a

conviction under Federal law and/or could enhance any potential Federal criminal

sentences) were his primary concern when he pleaded guilty to the charged

offense.

       Further, Aguilar benefitted substantially from his plea agreement. Aguilar,

charged with a state-jail felony for possession of cocaine, was facing a punishment

range of 180 days’ to 2 years’ confinement and up to a $10,000 fine. See T EX.

                                             30
P ENAL CODE § 12.35. And under the law in effect in 1999, the law did not provide

for mandatory probation for a state-jail-felony possession-of-cocaine conviction.

See T EX. CRIM. P ROC. CODE Art. 42.12 § 15(a) (1998) (“On conviction of a state

jail felony punished under Section 12.35(a), Penal Code, the judge may suspend

the imposition of the sentence and place the defendant on community supervision

or may order the sentence to be executed.”)(emphasis added). Instead, the State

agreed to reduce the charged felony offense to a Class-A misdemeanor, and

Aguilar received 2 years’ deferred-adjudication community supervision and was

discharged from probation early, after only 8 months. See (CR: 53).

      Where the State’s evidence was strong, Aguilar failed to articulate any

viable defenses, the record did not show that Federal-law consequences were

Aguilar’s paramount concern when he pleaded guilty, and he benefitted

substantially from his plea agreement, Aguilar failed to demonstrate that a

decision to reject the plea bargain and insist on a trial would have been rational

under the circumstances. See, e.g., Ex parte Torres, 483 S.W.3d at 48; Ex parte

Murillo, 389 S.W.3d at 932. For these reasons, the habeas court’s order granting

Aguilar’s habeas relief and setting aside Aguilar’s “conviction” should be

reversed.




                                            31
POINT OF ERROR FIVE: Aguilar failed his burden of proving his habeas
claim that his trial counsel rendered ineffective assistance of counsel by
allegedly failing to adequately inform him of the immigration consequences of
his guilty plea because trial counsel was not required to advise him of such
collateral consequences at the time of his plea, and thus, the habeas court
abused its discretion to the extent that it granted Aguilar habeas-corpus relief
on this basis.

                                   UNDERLYING FACTS

       The State here relies on the recitation of facts set out in the statement of

facts above.

                            ARGUMENT AND AUTHORITIES

       The trial court abused its discretion in granting habeas relief on the grounds

that trial counsel was ineffective for failing to advise Aguilar of the immigration

consequences of his guilty plea, because this Court has previously ruled against

Aguilar on this issue because trial counsel had no duty to advise Aguilar of

immigration consequences in 1999 and because Aguilar was not prejudiced by his

trial counsel’s alleged failure to advise.7




       7
           See Ex parte Aguilar, 2016 WL 921904, at *4 (holding that because the applicant failed
to meet the deficient performance prong of Strickland, the trial court abused its discretion in
finding trial counsel ineffective). And because this issue has been previously decided by this
Court, Aguilar is foreclosed from relitigating it again. See Ex parte Young, 2008 WL 2967008, at
*2 (under the law-of-the-case doctrine, an appellate court’s resolution of a question of law in a
previous appeal of the same case will govern the disposition of the same issue when raised in a
subsequent appeal).

                                                 32
I.    Standards of Review

      The State incorporates herein and relies upon the standards of review

presented in its Point of Error Four.

II.   Aguilar failed his burden of proving that trial counsel was ineffective.

      A.     Trial counsel had no duty to advise Aguilar of the immigration
             consequences of his deferred-adjudication guilty plea.

      To the extent that this Court considers Aguilar’s subsequent-writ claim that

he would not have pleaded guilty if he had known that this would make him

subject to deportation and denial of naturalization as equating to the fact that he

was not advised of the immigration consequences of his guilty plea on the merits,

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does

not retroactively apply to Aguilar’s case. See Chaidez v. United States, 568 U.S.

342, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013)(holding that Padilla v. Kentucky

announced a new rule of constitutional criminal procedure, such that defendants

whose convictions became final prior to Padilla could not benefit from its

holding); see also Ex parte Aguilar, 2016 WL 921904, at *4 (holding that trial

counsel had no duty to inform applicant of the immigration consequences of his

guilty plea because at the time of the plea, such a consequence was considered a

collateral consequence, and that the habeas court erred in finding that trial counsel


                                            33
rendered ineffective assistance of counsel when he did not advise applicant of the

possibility of deportation).

       The Court of Criminal Appeals has likewise held that Padilla was a new

rule of criminal procedure that did not apply to cases already final on direct

review. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013);

see also State v. Guerrero, 400 S.W.3d 576, 587 (Tex.Crim.App. 2013). And

recognizing the holdings in Chaidez and Ex parte De Los Reyes, this Court has

also held that since Padilla announced a new rule, it did not retroactively apply to

the collateral review of a state conviction that was final when Padilla was decided.

See Ex parte Nieves, No. 08-11-00189-CR, 2013 WL 3943288, at *10

(Tex.App.–El Paso July 24, 2013, no pet.)(not designated for publication); Ex

parte Cisneros, No. 08-11-00180-CR, 2013 WL 1281995, at *8 (Tex.App.–El

Paso Mar. 28, 2013, no pet.)(not designated for publication).

       In this case, Aguilar pleaded guilty to the charged possession-of-cocaine

offense on January 15, 1999, and the trial court placed him on two years’

deferred-adjudication community supervision. For purposes of Padilla, Aguilar’s

case was final on January 15, 1999. See Ex parte Nieves, 2013 WL 3943288, at

*10, citing Guerrero, 400 S.W.3d at 588. Because Aguilar’s case was final at the

time Padilla was decided, Aguilar cannot benefit from a retroactive application of

                                           34
Padilla, no matter how he attempted to recharacterize the issue, and the trial

court’s order granting relief, to the extent it was on the basis of Padilla, should be

reversed for this reason alone. See, e.g., Guerrero, 400 S.W.3d at 588; Ex parte De

Los Reyes, 392 S.W.3d at 679; Ex parte Nieves, 2013 WL 3943288, at *10; Ex

parte Cisneros, 2013 WL 1281995, at *8.

       B.     Aguilar failed his burden of proving that trial counsel rendered
              deficient performance by allegedly failing to advise him of the
              immigration consequences of his deferred-adjudication guilty
              plea.

       Aguilar bore the sole burden of rebutting, by a preponderance of the

evidence, the strong presumption that trial counsel was effective and of presenting

a record demonstrating the reasons behind trial counsel’s actions or inaction. See

Thompson, 9 S.W.3d at 813. The United States Supreme Court recognized such a

presumption of effective assistance in the context of Padilla: “We should,

therefore, presume that counsel satisfied their obligation to render competent

advice at the time their clients considered pleading guilty.” See Padilla, 559 U.S.

at 372.

       Trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective, and it is generally the applicant’s

burden to produce an affidavit or testimony from trial counsel to substantiate his


                                            35
writ allegations. See, e.g., Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d

at 111; Sandoval v. State, Nos. 14-01-00049-CR, 14-01-00050-CR,

14-01-00051-CR, 2002 WL 533711, at *4 (Tex.App.–Houston [14th Dist.] Apr.

11, 2002, pet. ref’d)(not designated for publication)(noting the defendant’s failure

to subpoena his trial counsel to his motion-for-new-trial hearing, rejecting the

defendant’s erroneous argument that the burden was on the State to secure the

defendant’s trial counsel’s appearance at his hearing and that the State’s failure to

do so should result in an adverse inference, and reiterating that the burden was on

the defendant to rebut, by a preponderance of the evidence, the presumption that

trial counsel was effective).

       Beyond Aguilar’s bare, conclusory allegations, nothing in the record

substantiated his allegation that trial counsel failed to properly advise him of the

immigration consequences of his guilty plea. Aguilar failed to produce an affidavit

from trial counsel substantiating his ineffective-assistance claim; thus, the habeas

record did not contain trial counsel’s explanation as to what advice he gave

Aguilar about his guilty plea.

       Accordingly, the record did not affirmatively demonstrate that trial counsel

failed to properly advise Aguilar of the immigration consequences of his guilty

plea, such that Aguilar failed his burden of overcoming the strong presumption of

                                            36
effective assistance in this regard. See Ex parte Okere, 56 S.W.3d at 856 (holding

that the applicant failed to overcome the presumption that trial counsel was

effective where the applicant failed to subpoena any of the attorneys involved in

the preparation and presentation of his case to testify at his writ hearing, and the

record contained no explanation for trial counsel’s actions); Ex parte Wong, 2009

WL 3111827, at *2 (holding that other than the defendant’s uncorroborated writ

allegations, nothing in the record substantiated the defendant’s contentions that

counsel behaved in the manner alleged, specifically, the defendant did not obtain

an affidavit from trial counsel, and the trial court determined that there was

nothing in the habeas-corpus record showing counsel advised the defendant to

plead guilty or failed to fully apprise the defendant of the facts and law applicable

to the case).

       Because Aguilar failed to provide evidence, other than his self-serving

testimony, in support of his uncorroborated allegations that trial counsel failed to

properly advise him of the immigration consequences of his guilty plea, he failed

his burden of proving any deficient performance by trial counsel at his habeas

hearing, see, e.g., Rylander, 101 S.W.3d at 110, and the trial court’s order, to the

extent it granted relief on this basis, should be reversed for this reason as well.




                                             37
       C.     Aguilar failed his burden of proving that he was prejudiced by
              any deficient performance of trial counsel in failing to advise him
              of the immigration consequences of his deferred-adjudication
              guilty plea.

       In the context of Padilla, an applicant must show not only that trial counsel

was required, but failed, to give proper advice concerning the immigration

consequences of pleading guilty, he must also specifically aver and affirmatively

prove, by credible evidence, that had he been aware that his guilty plea carried the

risk of deportation, he would have pleaded not guilty and insisted on going to trial.

See Padilla, 559 U.S. at 374; Hill, 474 U.S. at 59-60; Ex parte Torres, 483 S.W.3d

at 48; Ex parte Harrington, 310 S.W.3d at 458. As the United States Supreme

Court noted in Padilla, “it is often quite difficult for petitioners who have

acknowledged their guilt to satisfy Strickland’s prejudice prong.” See Padilla, 559

U.S. at 371 n.12.

       Furthermore, in order to obtain relief on a claim that an applicant’s guilty

plea was rendered involuntary as a result of ineffective assistance of counsel, it is

not enough to baldly assert that he would have insisted on going to trial; an

applicant must convince the court that a decision to reject the plea bargain would

have been rational under the circumstances. See Padilla, 559 U.S. at 372, citing

Roe v. Flores-Ortega, 528 U.S. at 480, 486. And the United States Supreme Court


                                            38
has explained that such an inquiry must be made objectively, without regard for

the idiosyncrasies of the particular decision-maker. See Hill, 474 U.S. at 59-60. In

other words, an assessment of the likelihood of a result more favorable to the

defendant must exclude the possibility of arbitrariness, whimsy, caprice,

“nullification,” and the like. See Strickland, 466 U.S. at 695.

      Factors to consider in determining whether a decision to reject a plea

bargain would have been rational under the circumstances are: (1) the strength of

the State’s case or evidence of the applicant’s guilt, (2) whether the applicant had

any legal or factual defenses, (3) whether the applicant presented evidence

indicating that the immigration consequences of his plea were his “paramount

concern,” and (4) the circumstances of the plea agreement compared to what the

applicant risked by going to trial. See Ex parte Torres, 483 S.W.3d at 48; Ex parte

Murillo, 389 S.W.3d at 928-31, abrogated on other grounds by Ex parte De Los

Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013). Although the inquiry is not

whether the applicant would have received a more favorable disposition at trial,

the habeas court can properly consider evidence concerning the likelihood of

success at trial when determining whether it would have been rational to reject the

plea bargain. See Ex parte Murillo, 389 S.W.3d at 930.




                                           39
      During the habeas proceedings, the State presented evidence demonstrating

that it had a strong case. In complaint and offense reports, Ofc. Rodriguez related

that while on patrol on May 3, 1997, he saw two individuals, later identified as

Aguilar and Ricardo Marmolejo, sitting on a park bench and that as he passed by,

he saw Marmolejo pick an item up from the park table and “...bend[] down...” to

prevent Ofc. Rodriguez from seeing that he was concealing something in his right-

front pants pocket. See (CR: 34-36). Because of Marmolejo’s suspicious behavior,

Ofc. Rodriguez stopped his patrol unit and approached both Aguilar and

Marmolejo to ask them to produce identification. Id. As he approached, Ofc.

Rodriguez smelled a strong odor of marijuana emanating from the breath and

person of both Aguilar and Marmolejo, and he then asked Marmolejo whether he

had any narcotics, and Marmolejo answered that he had marijuana inside his right-

front pants pocket. Id. After seizing Marmolejo’s marijuana, Ofc. Rodriguez

approached Aguilar as he was pulling his wallet out of his pocket and observed a

small piece of white paper drop to the ground. Id. Ofc. Rodriguez picked up the

piece of paper, and after noticing its “diamond fold,” he unfolded the piece of

paper to find a white powdery substance that he believed was cocaine and placed

Aguilar under arrest. Id. Lab reports showed that the white powdery substance in

the diamond-folded piece of paper tested positive for cocaine. See (CR: 37).

                                           40
       Aguilar did not otherwise allege or demonstrate that he had a viable defense

to raise at trial. And, as this Court noted in its previous opinion, Aguilar at the

habeas hearing on his initial writ failed to show that a motion to suppress would

have been granted and that the remaining evidence would have been insufficient to

support his conviction. See Ex parte Aguilar, 2016 WL 921904, at *5. Moreover,

the record contained scant, if any, evidence showing that Aguilar informed trial

counsel or anyone else, including the trial court, that immigration consequences

were his primary concern when he pleaded guilty to the charged offense.

       Further, Aguilar benefitted substantially from his plea agreement. Aguilar,

charged with a state-jail felony for possession of cocaine, was facing a punishment

range of 180 days’ to 2 years’ confinement and up to a $10,000 fine. See T EX.

P ENAL CODE § 12.35. And under the law in effect in 1999, the law did not provide

for mandatory probation for a state-jail-felony possession-of-cocaine conviction.

See T EX. CRIM. P ROC. CODE Art. 42.12 § 15(a) (1998) (“On conviction of a state

jail felony punished under Section 12.35(a), Penal Code, the judge may suspend

the imposition of the sentence and place the defendant on community supervision

or may order the sentence to be executed.”)(emphasis added). Instead, the State

agreed to reduce the charged felony offense to a Class-A misdemeanor, and

Aguilar received 2 years’ deferred-adjudication community supervision and was

                                             41
discharged from probation early, after only 8 months. See (CR: 53).

      Where the State’s evidence was strong, Aguilar failed to articulate any

viable defenses, the record did not show that immigration consequences were

Aguilar’s paramount concern when he pleaded guilty, and he benefitted

substantially from his plea agreement, Aguilar failed to demonstrate that a

decision to reject the plea bargain and insist on a trial would have been rational

under the circumstances. See, e.g., Ex parte Torres, 483 S.W.3d at 48; Ex parte

Murillo, 389 S.W.3d at 932. For these reasons, the habeas court’s order granting

Aguilar’s habeas relief and setting aside Aguilar’s “conviction” should be

reversed.




                                            42
                                       PRAYER

      WHEREFORE, the State prays that the habeas court’s order granting

Aguilar’s habeas relief and setting aside Aguilar’s conviction be reversed.

                                         Respectfully submitted,

                                         JAIME ESPARZA
                                         DISTRICT ATTORNEY
                                         34th JUDICIAL DISTRICT


                                         /s/ Ronald Banerji
                                         RONALD BANERJI
                                         ASST. DISTRICT ATTORNEY
                                         DISTRICT ATTORNEY’S OFFICE
                                         EL PASO COUNTY COURTHOUSE
                                         500 E. SAN ANTONIO
                                         EL PASO, TEXAS 79901
                                         (915) 546-2059 ext. 3312
                                         FAX (915) 533-5520
                                         E-MAIL: rbanerji@epcounty.com
                                         SBN 24076257

                                         ATTORNEYS FOR THE STATE




                                           43
                        CERTIFICATE OF COMPLIANCE

      The undersigned does hereby certify that the foregoing document, beginning

with the statement of facts on page 1 through and including the prayer for relief on

page 43, contains 8,968 words, as indicated by the word-count function of the

computer program used to prepare it.

                                        /s/ Ronald Banerji
                                        RONALD BANERJI

                           CERTIFICATE OF SERVICE

      The undersigned does hereby certify that a copy of the above brief was sent

by e-mail by utilizing the E-serve system on May 29, 2018, to appellant’s attorney:

Matthew DeKoatz, mateodekoatz@yahoo.com.

                                        /s/ Ronald Banerji
                                        RONALD BANERJI




                                           44
