                                                                                        PD-1277-14
                                                                       COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
December 29, 2014                                                   Transmitted 12/26/2014 3:43:29 PM
                                                                      Accepted 12/29/2014 8:30:14 AM
                                                                                         ABEL ACOSTA
                          NO. PD-1277-14                                                         CLERK
__________________________________________________________________

              IN THE COURT OF CRIMINAL APPEALS
                         AUSTIN, TEXAS
__________________________________________________________________

                                 THE STATE OF TEXAS,

                                       Respondent,

                                            vs.

                                 REYES, JUAN CARLOS

                                       Petitioner.
                    ______________________________________________

                          Appeal from the Eighth Court of Appeals
                                      El Paso, Texas
                                   No. 08-12-00261-CR

                        County Court at Law No. 7
                         El Paso County, Texas
                  Trial Court No. 20050C17647-CC7-1
__________________________________________________________________

              PETITIONER’S BRIEF ON THE MERITS
__________________________________________________________________

                                          JAMES D. LUCAS
                                          2316 Montana Avenue
                                          El Paso, Texas 79903
                                          Tel: (915) 532-8811
                                          Fax: (915) 532-8807
                                          SBN 12658300
                                          jlucas2@elp.rr.com

                                          Attorney for Petitioner
               IDENTITY OF THE PARTIES AND COUNSEL

For Petitioner/Juan Carlos Reyes:

James D. Lucas
Appellate Counsel
2316 Montana Avenue
El Paso, Texas 79903
jlucas2@elp.rr.com

For Respondent:

Lily M. Strout
Asst. District Attorney
El Paso County Courthouse
500 E. San Antonio, Room 201
El Paso, Texas 79901
tdarnold@e[county.com

State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
information@spa.texas.gov

Trial Court:

County Court at Law No. 7
Hon. Thomas Spieczny
El Paso County Courthouse
500 E. San Antonio
El Paso, Texas 79901
                                          TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL.....................................................i

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

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

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

GROUNDS FOR REVIEW........................................................................................2

STATEMENT OF THE FACTS................................................................................3

SUMMARY OF THE ARGUMENT.........................................................................16

ARGUMENT.............................................................................................................19

1.       The court of appeals erred in ruling that the trial court failed to identify or rely
         on any theory of law to support Reyes’ non-Padilla claims when the trial court
         was ordered to only supplement its findings of fact and conclusions of law as
         to Reyes’ Padilla claim .................................................................................19

2.       The court of appeals erred in ruling that an article 11.072 writ applicant is not
         entitled to a ruling by the trial court on his potentially dispositive actual
         innocence and ineffective assistance claims..................................................24

3.       The court of appeals erred by giving binding effect to the trial court’s failure
         to supplement its non-Padilla findings of fact and conclusions of law, when the
         court of appeals restricted the trial court to issuing Padilla-related
         supplemental findings of fact and conclusions of law...................................27

PRAYER......................................................................................................................33

CERTIFICATE OF SERVICE.................................................................................33

CERTIFICATE OF COMPLIANCE........................................................................34

APPENDIX...............................................................................................................35
                                     INDEX OF AUTHORITIES

FEDERAL CASES                                                                                     PAGES

Castille v. Peoples, 489 U.S. 346, 350 (1989).........................................................26

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)...........................................................25

Padilla v. Kentucky, 559 U.S. 356 (2010)..........................8, 11, 12, 15-27, 28, 29, 33

Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct 2052, 80 L.Ed.2d 674................................................................6, 17, 20, 28

Townsend v. Sain, 372 U.S. 293, at 313 (1963)...................................................25, 27

STATE CASES

Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996)................................31

Ex Parte De Los Reyes, 350 S.W.3d 723 (Tex.App.-El Paso 2011)........................11

Duncan v. Evans, 653 S.W.2d 38 (Tex.Cr.App.1983)..........................................27-28

State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)...........................28, 31

State v. Duran, 396 SW 3d 563 (Tex. Crim.App. 2013)..........................................32

State v Elias, 339 S.W. 3d 667,676 (Tex.Crim.App. 2011)..............20, 21, 24, 28, 31

State v. Gobert, 275 S.W.3d 888, 891-92 & n. 13 (Tex.Crim.App.2009)...............31

Wright v. State, 981 S.W.2d 197, 201 (Tex. Crim. App. 1998)...............................31

RULES

28 U.S.C. § 2254(b)...........................................................................................26, 27

TEX. CODE CRIM. PROC. § 11.072........................................................1, 8, 15, 19, 24
OTHER

Violence Against Women Act (VAWA)....................................................................8
                          STATEMENT OF THE CASE

      Petitioner Juan Carlos Reyes challenges the correctness of the court of appeals’

decision to reverse the trial court’s order which granted Reyes’ relief on his article

11.072 writ application. The trial court held an evidentiary hearing on July 19, 2012

and heard argument on the writ application on August 2, 2012. RR 2, at 5-191; RR 3,

at 12-35. After hearing argument on August 2, 2012, the trial court took the matter

under advisement. RR 3, 33-35. On August 6, 2012, the trial court signed the written

order granting Reyes relief on his application for writ of habeas corpus, and as part

of that written order, issued findings of fact and conclusions of law. CR 130-132. On

August 7, 2012, the trial court entered another written order vacating Reyes’

misdemeanor Assault-Family Violence conviction. CR 129. The State timely filed its

notice of appeal of the trial court’s order granting Reyes’ relief on his article 11.072

application or writ of habeas corpus. CR 136-137. After briefing, the court of appeals

reversed the trial court’s order in a judgment accompanied by a written opinion issued

on June 30, 2014. The court of appeals on August 13, 2014 overruled Reyes’ motion

for rehearing filed on July 30, 2014. This petition for discretionary review follows.




                                         Page 1
                  GROUNDS FOR REVIEW PRESENTED

1.   The court of appeals erred in ruling that the trial court failed to identify or rely
     on any theory of law to support Reyes’ non-Padilla claims when the trial court
     was ordered to only supplement its findings of fact and conclusions of law as
     to Reyes’ Padilla claim

2.   The court of appeals erred in ruling that an article 11.072 writ applicant is not
     entitled to a ruling by the trial court on his potentially dispositive actual
     innocence and ineffective assistance claims

3.   The court of appeals erred by giving binding effect to the trial court’s failure
     to supplement its non-Padilla findings of fact and conclusions of law, when the
     court of appeals restricted the trial court to issuing Padilla-related
     supplemental findings of fact and conclusions of law




                                        Page 2
                             STATEMENT OF FACTS

      On February 14, 2006, Petitioner Reyes, a lawful permanent resident alien of

the United States, briefly met his court-appointed attorney at the arraignment pretrial

for the first time. CR 120. The attorney appointed to represent Reyes was appointed

that same day. Id. The attorney appointed to represent Reyes did not discuss the

merits of the case with Reyes at the arraignment, but arranged instead to meet with

Reyes on March 16, 2006. Id. On that date, Reyes court-appointed trial counsel

scheduled Reyes’ case for a guilty plea. Id. On March 30, 2006, Reyes appeared for

the guilty plea hearing and was presented with a written plea agreement offer made

by the State’s prosecuting attorney: In exchange for Reyes’ plea of guilty to the

offense of Assault Family Violence, Reyes was required to agree to be sentenced to

365 days in jail and assessed a $1,000.00 fine, with half the fine and all of the jail

term suspended, provided that Reyes completed a 12 month term of community

supervision. Id.

      Based on his trial counsel’s recommendation that Reyes accept the plea bargain

offer, Reyes entered a plea of guilty and was sentenced by the trial court in

accordance with the written plea bargain agreement made by the State. Id.         The

criminal information to which Reyes entered a guilty plea alleged in pertinent part

that on or about the 5th day of September, 2005, Applicant Reyes did then and there

                                        Page 3
intentionally, knowingly, and recklessly cause bodily injury to Hilda Maldonado by

(Paragraph A) pushing her about the body with his hand and by (Paragraph B)

striking her about the head with his hand. CR 120-121.

      Reyes’ trial counsel did not inform Reyes of the State’s burden of proof

concerning the offense charged or explain to Reyes what elements of the offense the

State would have to prove to convict him of the assault offense alleged in the criminal

information. Id. Reyes’ trial counsel also failed to inform Reyes that “bodily injury”

was an element of the offense and what evidence would be needed to prove that Hilda

Maldonado suffered bodily injury. Id. In addition, Reyes’ trial counsel failed to advise

Reyes of what legal defenses were available to him. Id. Specifically, Reyes’ trial

counsel failed to discuss with Reyes the law of self-defense and how it might apply

under the facts of the case. Id. Nor did Reyes’ trial counsel attempt to ascertain

Reyes’ version of the facts regarding the incident upon which the assault charge was

based or inquire of Reyes whether there were any witnesses to the incident who might

be able to provide favorable testimony for Reyes. Id.

      Reyes’ court-appointed trial counsel spent less than about 10 minutes

discussing the case with Reyes, which focused on only whether Reyes should enter

a plea of guilty to the assault charge. Id. In discussing with Reyes, trial counsel

appointed to represent Reyes recommended that he enter a plea of guilty to the Class

                                         Page 4
“A” assault/Family violence charge. Id. Reyes believed his trial counsel knew what

was best for him and therefore he agreed to follow his trial counsel’s

recommendation. Id. On the date of his guilty plea, Reyes was 26 years of age, had

lived in the United States continuously since about 9 years of age and was the father

of three United States children, all of whom lived in the United States. Id. Before

Reyes entered a plea of guilty to the Class “A” assault charge, his trial counsel failed

to advise him of the immigration consequences of entering a guilty plea to the assault

charge. More particularly, Applicant Reyes’ trial counsel failed to inform Reyes that

by pleading guilty to a 365 day jail sentence to the offense of Class “A” Assault, with

a family violence finding, would subject him to removal from the United States. Id.

      Reyes asserted in his sworn writ application that if his trial counsel had asked

Reyes to provide his version of the facts, he would have stated that he ceased living

with Hilda Maldonado (hereinafter “Maldonado”) approximately a month before the

September 5, 2005 incident which resulted in his arrest for Assault-Family Violence

upon learning that Maldonado had commenced an affair with another man. CR 121-

122. Reyes further asserted that after leaving Maldonado at the 5832 Harrison Street

address, Reyes moved in with Hector Garcia, his cousin, at an address on Ivanhoe

Street in the east central part of El Paso and that on the date of the incident, Reyes

had picked up his children at the Harrison address and taken them to the Ivanhoe

                                         Page 5
residence, so that they could go swimming in his cousin’s pool. Id. While there,

Maldonado showed up un-announced and was let into the residence by Reyes’ cousin,

Hector Garcia. Maldonado walked into the residence and confronted Reyes in the

kitchen, where she immediately began yelling at Reyes for walking out on her with

their three children and ending their relationship. Id. Maldonado also slapped Reyes

three or four times and begged him to “hit” her. Id. This aggressive conduct by

Maldonado was witnessed both by Juan Carlos Reyes, Jr. and by Angel Reyes, their

two children. At the time, Juan Carlos Reyes was 10 years of age, and Angel was 7

years of age. Id. A witness to Maldonado’s aggressive behavior was Reyes’ cousin,

Hector Garcia, who not only recalls that Maldonado was the aggressor, but that she

attempted to make Reyes’ hit her. Id.

       To prevent the situation from escalating, Reyes pushed Maldonado out of the

way so that he could exit the residence. Id. Reyes asked and was given permission

by Hector Garcia to use his vehicle to leave the residence. Id. At no point in the

encounter did Reyes inflict bodily injury on Maldonado, although he sustained bodily

injury from being slapped, without justification, several times by Maldonado. Id. His

decision to push Maldonado was purely an act of self-defense, which became

necessary after the assault she had initiated against him got out of hand and became

violent. Id.

                                        Page 6
      Reyes further asserted in his writ application that the State could produce no

photographs which showed that Maldonado was physically injured. Id. Reyes further

asserted that he did not understand the law of self-defense before he entered a plea

of guilty to the assault charge. Id. Reyes did not realize that pursuant to Section 9.31

of the Texas Penal Code he was justified in using force when and to the degree

necessary to repel Maldonado’s use or attempted use of unlawful force against him.

Id. If he had known of this legal defense, Reyes asserted in his writ application that

he would have never entered a plea of guilty to the assault charge pending against

him, but would have instead insisted upon a jury trial at which he would have testified

that he only used such force as was necessary to protect himself against the assault

Maldonado initiated against him. Id.

      At the time of his guilty plea, Reyes did not realize that a plea to the Texas

misdemeanor offense of Class “A” Assault, family violence would subject him to

removal from the United States because this conviction represented a crime of moral

turpitude under the Immigration & Nationality Act. CR 123. Reyes also asserted in

his writ that he had no idea that a plea to this offense would carry adverse

immigration consequences and that it would subject him to deportation or removal

from the United States. Id. Further, at the time of his guilty plea, Reyes had never

entered a guilty plea to or been found guilty of any felony offense. Id. Nor had he

                                         Page 7
ever pled guilty to or been convicted of any other offense which would subject him

to deportation or removal from the United States. Id. Reyes asserted in his writ

application that he would never have entered the guilty plea to the Class “A”

assault/family violence charge had he known that it carried potential adverse

immigration consequences. Instead, he asserts that he would have insisted upon a

jury trial of this charge. Id.

       On the date of the alleged incident in which Reyes is alleged to have committed

the assault offense, Maldonado was not a legal permanent resident alien of the United

States. Id. After Reyes left her, the only way Maldonado could acquire legal

residence was through the Violence Against Women Act (VAWA). Id. However,

Maldonado’s motive to pursue relief under this Act was never investigated by Reyes’

trial counsel. Id. Since the incident, Maldonado has become a permanent residence

through the VAWA. Id. Prior to pleading guilty to the assault charge, Reyes’ trial

counsel failed to inform Reyes of VAWA and of the fact that the benefit conferred

under this Act provided a motive for Maldonado to insist that Reyes “hit” her on the

date of the incident, as being the victim of an act of violence would and did protect

Maldonado from now having to face the prospect of deportation or removal. Id.

       Apart from alleging a Padilla v. Kentucky claim, Reyes asserted the following

additional claims in this article 11.072 writ application: “2. Trial counsel's failure to

                                         Page 8
conduct an independent investigation of the facts of the case deprived Reyes of

effective assistance of counsel since at least three witnesses to the assault could have

provided testimony establishing that it was Hilda Maldonado who assaulted Reyes

and that Reyes’ conduct was justified under the law of self defense; “3. Trial counsel's

failure to advise Reyes concerning the law of ‘self defense’ deprived Reyes of

effective assistance of counsel since Reyes would not have otherwise pled guilty to

the Class ‘A’ assault charge”; and “4. Applicant Reyes’ guilty plea should be vacated

and set aside because it was not knowingly and intentionally made.” CR 36-41.

       At the conclusion of the evidentiary hearing on Reyes’ writ application, the

trial court granted relief on Reyes’ writ application and supplied, sua sponte, the

following findings of fact and conclusions of law:

                                      Findings of Fact

           1.      The Defendant, Juan Carlos Reyes, was born on March 10, 1980.
                   CR 130.1

           2.      He has lived continuously in the United States since he was nine
                   years old and has been a lawful permanent resident. Id.

           3.      There is no evidence of any criminal history other than this
                   particular case. Id.




       1
         Appellee Reyes omits the trial court’s reference to the evidentiary source of its findings
of fact in setting out its findings of fact.

                                               Page 9
4.    The Defendant is the father of three children, all born in the
      United States. Id.

5.    In the present case, the Defendant was charged with Assault
      Family Violence because of an incident occurring on or about
      September 5, 2005. Id.

6.    The incident occurred at the home of Defendant’s cousin Hector
      Garcia, when the Defendant’s wife (or ex-wife) Hilda Maldonado
      arrived and a confrontation arose between Ms. Maldonado and
      the Defendant. Id.

7.    Portions, but not the entirety, of that confrontation were witnessed
      or overheard by Mr. Garcia and at least two of the Defendant’s
      child (Juan Carlos Reyes, Jr., then ten years old and Angel, then
      seven years old). Id.

8.    There is nothing in the Court’s file to indicate that witness
      statements were ever obtained from these individuals and they
      testified that they did not speak with the police. However, there
      is a supplemental report of Officer 3325 indicating a conversation
      with Mr. Garcia wherein he recounted observing some mutual
      pushing but stated that he did not want to be involved. Id.

9.    The same supplement report indicates photos of the complaining
      witness were taken. However, no photos were presented in the
      Habeas Proceeding. CR 131.

10.   The testimony of Mr. Garcia and the children (who admittedly did
      not see everything and who naturally have a motive to support the
      Defendant) support a finding that Ms. Maldonado was the
      aggressor and that the Defendant merely placed his hands on her
      to try and get past her to leave. Id.

11.   The criminal charge against the Defendant was resolved quickly.
      He met his court-appointed lawyer at this arraignment/pretrial on
      February 14, 2006. He had a second meeting on March 16, 2006,

                             Page 10
      and entered a guilty plea on March 30, 2006. It appears from the
      Court’s file that the Plea recommendation which formed the basis
      of the plea was also prepared on March 30, 2006. Id.

12.   The Defendant now claims that his trial counsel did not advise
      him of the immigration consequences and did not advise him that
      his plea would subject him to removal from the United States. Id.

13.   The Defendant did sign plea papers which contain standard
      “boiler plate” language which states:

      “I further understand that in the event I am not a citizen of the
      U.S.A., my plea of guilty may result in deportation, exclusion
      from admission to the U.S.A. or denial of naturalization under
      federal law.” Id.

14.   Neither the Defendant nor the State called the Defendant’s trial
      counsel to testify. No affidavit from her was presented. No
      transcript of anything stated at the time of the guilty plea was
      submitted. The Court takes judicial notice of the normal practice
      of El Paso County to not make a record of misdemeanor pleas. Id.

                      Conclusions of Law

1.    The Supreme Court decision of Padilla v. Kentucky, 30 S. Ct
      1473 (2010) eliminates all ambiguity and holds that a Defendant
      must be given a full complete explanation of immigration
      consequences in order for a plea to be voluntarily entered. Id.

2.    Texas Courts apply Padilla retroactively. Ex Parte De Los Reyes,
      350 S.W.3d 723 (Tex. App.–El Paso 2011); ... Id.

3.    Merely stating that a guilty plea “may” have immigration
      consequences does not meet the Padilla requirements. Unless the
      law is ambiguous, a Defendant must definitely be advised of
      deportation or removal consequences, Aguilar v. State, supra. CR
      132.

                            Page 11
          4.     The only evidence before the Court concerning the admonition of
                 potential immigration consequences is the boiler plate sentence
                 in the plea papers and the Defendant’s written sworn testimony.
                 Id.

          ...
          6.     The Defendant was prejudiced because he would not have plead
                 guilty had he known of the deportation/removal consequences
                 and because he has plausible defenses to the underlying charge
                 which, if believed by a jury, could result in an acquittal. Id.

      On January 31, 2013, the “State’s Motion to Abate the Appeal and Remand the

Case to the Trial Court for Supplemental Findings of Fact and Conclusions of Law”

was filed. This motion was not served on the trial court. Clerk’s Supplemental

Record, 8. With regard to Reyes’ non-Padilla claims, the State identified on page 7

of its motion to abate four findings of fact which it stated were not, but needed to be

made by the trial court in connection with the prejudice prong of Reyes’ ineffective

assistance writ allegations. (See p. 7 of the State’s motion to abate on file with this

Court). These findings consisted of the following:

          *      But the trial court failed to make specific fact findings that Reyes
          attested that he would have pleaded not guilty and would have insisted
          on trial and that the trial court found those attestations to be credible. Id.

          *     There are, in fact, no factual findings that support the trial court’s
           conclusion that Reyes would have pled not guilty had he known of the
          immigration consequences of doing so. Id.

          *    There are, in fact, no factual findings that support the trial court’s
          conclusion that Reyes would have pled not guilty had he known of the

                                         Page 12
          immigration consequences of doing so. Id.

          *     The trial court also failed to make specific findings and
          conclusions addressing and resolving the State’s argument that any
          decision by Reyes to reject the plea bargain and proceed to trial would
          not have been objectively rational. Id.

          In its motion to abate, the State did not identify any specific findings of

   fact relating to the deficiency prong of Reyes’ ineffective assistance claims

   which needed to be addressed. (See pp. 1-7 of the motion to abate on file with

   this Court). Its motion also does not purport to identify every finding of fact

   and conclusion of law which it believes the trial court needs to address. Id.

      On February 14, 2013, this Court entered an order granting the State’s motion

to abate and remanding the case to the trial court so that it could provide “missing

findings of fact and conclusions of law.” Apart from granting the State’s motion, the

court of appeals’ supplementation order failed to identify what findings of fact and/or

conclusions of were missing and need to be supplied by the trial court.

      On April 29, 2013, the trial court filed a document captioned

“SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW”

(Clerk’s Supplemental Record, 8-9) which stated in relevant part:

         On August 6, 2012, this Court filed Findings of Fact and Conclusions
   of Law. On January 20, 2013, the State filed a Motion which requested
   Supplemental Findings of Fact and Conclusions of Law. That Motion was not
   served on this Court. Having recently learned of the Motion, the Court now
   supplements its prior Findings and Conclusions:

                                        Page 13
                    Supplemental Finding of Fact #1

       The Court makes the finding that Juan Carlos Reyes was not advised that
a guilty plea would subject him to deportation. This Finding is based upon the
affidavit which the Court finds to be completely credible on this issue. It is
also based on timing of events set out in the original Finding of Fact #11.
Therefore, the Court finds that neither defense counsel, nor the assistant
District Attorney, nor the Judge who heard the plea properly admonished the
Defendant about deportation. Clerk’s Supplemental Record, 8.

                  Supplemental Finding of Fact #2

       The Court further finds that the Defendant would absolutely positively
NOT have plead guilty if he had been advised that doing so would lead to
deportation. This finding is based on the fact that nobody other than an
appellate lawyer straining to concoct an argument could conceivably choose
deportation and permanent banishment from the United States rather than face
the risk of a misdemeanor prosecution (See Supplemental Finding #3). Clerk’s
Supplemental Record, 8.

                    Supplemental Finding of Fact #3

       The court rejects as utterly groundless the State’s argument that rejecting
the plea bargain and proceeding to trial would not have been objectively
rational under the circumstances. The Court takes judicial notice of the
following data received from the Office of Court Administration. In 2005 (the
year of Juan Carlos Reyes’ case) there were 1,684 dispositions of Assault
Family Violence cases. There were 603 findings of guilt or guilty pleas and
1,081 findings of not guilty or dismissals. The guilty category included 203
cases of straight probation, 183 cases of deferred adjudication probation, and
only 217 cases with jail sentences. More than half of those jail sentences were
for less than 60 days. This data (which presumably has always been available
to the State) totally undermines the claim that Juan Carlos Reyes had to take
the plea to avoid the harsh consequences of proceeding further through the
judicial process. Clerk’s Supplemental Record, 8-9.




                                     Page 14
                       Supplemental Finding of Fact #4

         Having already determined that no rational person would voluntarily
   choose deportation over the “risks” of pleading “not guilty,” it is almost
   unnecessary to point out that certainly, that a father of United States citizenship
   children would be even less inclined to do so. The two children who testified
   were attractive, smart, polite and well behaved. It is TOTALLY
   INCONCEIVABLE that a parent would choose to be permanently separated
   from them rather than to face the risk of misdemeanor prosecution. Clerk’s
   Supplemental Record, 9.

                        Supplemental Conclusion of Law #1

         The Court’s original Conclusion of Law #2 concerning the retroactive
   applicability of Padilla v. Kentucky must now be reconsidered in light of an
   intervening Supreme Court ruling....Clerk’s Supplemental Record, 9.

      In its brief to the court of appeals, the State failed to address or give any

consideration to the supplemental findings of fact and conclusions of law the trial

court filed in this cause, pursuant to the Order of the Court of Appeals. In the prayer

of its principal brief, the State requested that Reyes’ article 11.072 writ application

be reversed and that Reyes’ conviction be reinstated.

      On page 8 of its opinion, the court of appeals provided the following

justification for its determination that Reyes should be denied relief on the non-

Padilla claims he had raised in his article 11.072 writ application:

   We do not dispute the rial court made additional findings of fact that could
   ostensibly support Reyes’s claims he was actually innocent and he received
   ineffective assistance because his counsel failed o conduct and independent
   investigation and inform him of the law of self-defense. However, it is clear
   from the trial court’s original and supplemental conclusions of law that the trial
                                        Page 15
   court relied on the retroactive application of Padilla to conclude Reyes proved
   deficient performance under he first prong of Strickland. The trial court
   neither identified nor relied on any other theory of law to support its ruling,
   and under pre-Padilla law, Reyes’s plea would not be rendered involuntary
   under the United States or Texas Constitutions even if his attorney failed to
   inform him of the immigration consequences of his plea.

                        SUMMARY OF THE ARGUMENT

       Reyes asserts in his first ground for review that the court of appeals’ ruling

that the trial court failed to identify or rely on any theory of law which supported

granting Reyes relief on his non-Padilla claims is flawed in several respects. First,

because several of the trial court’s original findings of fact relate to Reyes’ non-

Padilla claims and original conclusion of law #6 states that Reyes “was prejudiced

... because he has plausible defenses to the underlying charge which, if believed by

a jury, could result in an acquittal,” it is evident the trial court relied at least in part

on non-Padilla theories to vacate Reyes’ conviction. Second, the court of appeals’

supplementation order precluded the trial court from providing supplemental findings

of fact or conclusions of law on any of Reyes’ non-Padilla claims. The court of

appeals therefore erred in drawing significance from the fact that the trial court failed

to make non-Padilla supplemental findings of fact or conclusions of law relating to

Reyes’ non-Padilla claims. Third, the in part implied and in part express holding by

the court of appeals that it could decide Reyes’ potentially dispositive non-Padilla

claims because the trial court failed to address these claims in its supplemental

                                          Page 16
findings of fact and conclusions of law disregards this Court’s well-settled precedent.

According to this precedent, it is the trial courts which bear the responsibility to make

findings of fact and conclusions of law which are adequate and complete and cover

every potentially dispositive issue. It does not confer on the court of appeals the

authority to make findings of fact or conclusions on its own.

      Reyes’ second ground for review focuses on the court of appeals’

determination that it “was clear from the trial court’s original order and supplemental

conclusions of law that the trial court relied on the retroactive application of Padilla

to conclude Reyes proved deficient performance under the first prong of Strickland”

after it acknowledged that Reyes did assert non-Padilla claims “that could ostensibly

support Reyes’s claims he was actually innocent and he received ineffective

assistance because his counsel failed to conduct an independent investigation and

inform him of the law of self-defense” (See Opinion, p. 8). Reyes asserts that the

court of appeals’ ignored considerable evidence and several of the trial court’s

original findings of fact pertaining to his non-Padilla claims. Reyes cites to decisions

of the U.S. Supreme Court and to language in a federal statute which impose on states

the duty, as a matter of Due Process, to provide a full and fair hearing to writ

applicants like Reyes, which reaches and decides all relevant issue of fact presented

and decides the merits of any constitutional claims presented. Reyes therefore asserts


                                        Page 17
that the court of appeals exaggerated focus on his Padilla claim failed to provide him

with a full and fair hearing of his non-Padilla claims.

      Reyes asserts in his third ground for review that the court of appeals so far

departed from the accepted and usual course of proceedings as to call for an exercise

of this Court’s power of supervision. Reyes argues that the court of appeals

accomplished this result by restricting the trial court to making supplemental findings

of fact and conclusions of law relating only to Reyes’ Padilla claim and then ruling

that the trial court’s original findings of fact and conclusions of law were inadequate

to support Reyes’ non-Padilla claims; by considering the trial court’s original

findings of fact and conclusions of law in isolation rather than in their totality; and

by abdicating its role as a reviewing court and assuming the role of trier of fact.

Overall, Reyes asserts that the methodology utilized by the court of appeals in dealing

with Reyes’ non-Padilla claims was seriously flawed and requires that this case be

remanded for further proceedings.




                                       Page 18
                                        ARGUMENT

1.    The court of appeals erred in ruling that the trial court failed to identify
      or rely on any theory of law to support Reyes’ non-Padilla claims when the
      trial court was ordered to only supplement its findings of fact and
      conclusions of law as to Reyes’ Padilla claim

      The court of appeals rejected all five claims asserted in Reyes’ article 11.072

writ application, to wit: his first complaint (Padilla complaint); his second complaint

that trial counsel rendered ineffective assistance of counsel not advising him of the

law of self-defense before he entered his plea of guilty; his third complaint that his

trial counsel deprived him of effective assistance of counsel by not conducting an

independent investigation of the facts of his case; his fourth complaint that his guilty

plea was not knowingly and intentionally made; and his fifth complaint that he was

actually innocent of the Assault/Family Violence charge.2 The court of appeals


      2
          The non-Padilla grounds of Reyes’ article 11.072 writ application read as follows:

“2.   Trial counsel's failure to conduct an independent investigation of the facts of the case
      deprived Reyes of effective assistance of counsel since at least three witnesses to the
      assault could have provided testimony establishing that it was Hilda Maldonado who
      assaulted Reyes and that Reyes’ conduct was justified under the law of self defense.”

“3.   Trial counsel's failure to advise Reyes concerning the law of ‘self defense’ deprived
      Reyes of effective assistance of counsel since Reyes would not have otherwise pled guilty
      to the Class ‘A’ assault charge.”

“4.   Applicant Reyes’ guilty plea should be vacated and set aside because it was not
      knowingly and intentionally made.”

“5.   Applicant Reyes is actually innocent of the Class “A” assault/family violence offense of
      which he was convicted in this cause.”

                                              Page 19
explained its refusal to address Reyes’ actual innocence claim or his non-Padilla

ineffective assistance claims on the following rationale:

   We do not dispute the trial court made additional findings of fact that could
   ostensibly support Reyes’s claims he was actually innocent and he received
   ineffective assistance because his counsel failed to conduct an independent
   investigation and inform him of the law of self defense. However, it is clear
   from the trial court’s original and supplemental conclusions of law that the trial
   court relied on the retroactive application of Padilla to conclude Reyes proved
   deficient performance under the first prong of Strickland. The trial court
   neither identified nor relied on any other theory of law to support its ruling,
   and under pre-Padilla law, Reyes’s plea would not be rendered involuntary
   under the United States or Texas Constitutions even if his attorney failed to
   inform him of the immigration consequences of his plea. (Opinion, p. 8).

The Court of Criminal Appeals has stated that when a trial court enters findings of

fact, it has an obligation to make “findings and conclusions that [are] adequate and

complete, covering every potentially dispositive issue that might reasonably be said

to have arisen in the course of the...proceedings.” State v. Elias, 339 S.W.3d 667, 676

(Tex.Crim.App. 2011). In Reyes’ case, the court of appeals granted the State’s motion

for supplemental findings of fact and conclusions of law only as to Reyes’ Padilla

claim. It accordingly agreed with the State that the original findings of fact which

were issued by the trial court sua sponte as to Reyes’ Padilla claim were not adequate

and complete.3 However, because the State did not request the court of appeals to

       3
       The trial court’s original findings of fact and conclusions of law are appended as “Exh.
A.” The State’s motion to abate and request for supplemental findings of fact are appended as
“Exh. B”; the order granting the State’s motion to supplement is attached as “Exh. C;” and the
supplemental findings of fact provided by the trial court are appended as “Exh D.”

                                            Page 20
direct the trial court to provide supplemental findings of fact and conclusions of law

as to Reyes’ non-Padilla ineffective assistance claims or his actual innocence claim,

the court of appeals did not order the trial court to make supplemental findings of fact

and conclusions of law with regard to Reyes’ actual innocence claim or his two non-

Padilla ineffective assistance of counsel claims.

       The court of appeals thus erred by restricting the trial court to providing

supplemental findings of fact and conclusions of law only as to Reyes’ Padilla claim.4

This Court in State v. Elias, supra, established that a court of appeals must ensure that

a trial court makes all findings of fact and conclusions of law which are potentially

dispositive of the issue being decided by the trial court. Id., at 676. Elias further

establishes that these findings of fact and conclusions of law are to be made by the

trial court, not by a court of appeals. The unfairness of the court of appeals’ decision

in Reyes’ case is thus self-evident. By vacating the trial court’s judgment setting

aside Reyes’ conviction, the court of appeals disregarded several of the trial court’s

original findings of fact and a conclusion of law which supported vacating Reyes’

conviction on the non-Padilla ineffective assistance grounds asserted by Reyes in his

writ application.


       4
        The State apparently requested supplemental findings of fact and conclusions of law as
to Reyes’ Padilla claim because the U.S. Supreme Court had not yet decided whether Padilla v.
Kentucky should be retroactively applied on the date the State filed its principal brief.

                                           Page 21
     These original findings of fact and conclusions of law reveal that the trial court

did not confine itself to Reyes’ Padilla claim in deciding to vacate Reyes’ conviction.

In finding of fact #6, the trial court accepted evidence presented by Reyes which

established that the alleged assault occurred at the home of Reyes’ cousin, Hector

Garcia, which is where Reyes was residing on the date the complaining witness, Hilda

Maldonado (Reyes’ wife or ex-wife), un-expectantly arrived at Garcia’s home and

confronted Reyes in the kitchen. In finding of fact #7, the trial court determined,

based on the evidence adduced at the evidentiary hearing, that portions, but not the

entirety, of that confrontation were witnessed or overheard by Mr. Garcia and at least

two of Reyes’ children (Juan Carlos Reyes, Jr., then ten years old and Angel, then

seven years old). In finding of fact #8, the trial court found that there was nothing in

its file to indicate that witness statements were ever obtained from the complaining

witness (Maldonado) or the other witnesses on the date of the incident. The trial

court further found that these witnesses testified at the evidentiary hearing that they

did not speak with the police on the date of the incident. In finding of fact #9 the trial

court found that the same supplement report indicated that photos of the complaining

witness were taken, but that no photos were presented in the Habeas Proceeding

showing that she was injured. In finding of fact #10, the trial court stated that the

testimony of Mr. Garcia and the children supported a finding that Hilda Maldonado


                                         Page 22
was the aggressor and that Reyes merely placed his hands on her to try and get past

her to leave. In finding #11, the trial court found that the criminal charge against

Reyes resolved quickly; that Reyes met his court-appointed lawyer at this

arraignment/pretrial on February 14, 2006; that he had a second meeting with his

attorney on March 16, 2006; and that Reyes entered a guilty plea on March 30, 2006

pursuant to a Plea recommendation also prepared on that date. In finding of fact #14,

the trial court made a finding that Maldonado, the complaining witness, had not been

called as a witness to provide testimony at the evidentiary hearing held on Reyes’

article 11.072 writ application. And in conclusion of law # 6, the trial court stated

that Reyes “...was prejudiced ....because he has plausible defenses to the underlying

charge which, if believed by a jury, could result in an acquittal.” CR 132.

      The court of appeals therefore erred in vacating the trial court’s judgment in

the face of the trial court’s several findings of fact and conclusion of law which

supported Reyes’ non-Padilla claims. Even if the court of appeals believed these

findings of fact and conclusion of law were not adequate or complete, it was not

authorized to simply ignore them and deny Reyes relief on his non-Padilla claims.

It should have addressed the trial court’s numerous original findings of fact and

conclusion of law and not just ignored them. It also should not have restricted the trial

court to providing supplemental findings of fact and conclusions of law which related


                                        Page 23
only to Reyes’ Padilla claim, when findings of fact #s 6, 7, 8, 8, 10, 11, and 14, and

conclusion of law #6 of the trial court’s original findings of fact suggest that it had

vacated Reyes’ conviction at least in part on his non-Padilla claims.

      The court of appeals accordingly disregarded the rule that a trial court must

make “findings and conclusions that [are] adequate and complete, covering every

potentially dispositive issue that might reasonably be said to have arisen in the course

of the...proceedings.” State v. Elias, 339 S.W.3d at 676. If it believed that the trial

court’s findings of fact and conclusions of law were inadequate and incomplete as to

Reyes’ non-Padilla and actual innocence claims, it should have remanded the case

to the trial court to provide additional findings of fact and conclusions of law relating

to these claims. But it should not have merely ignored the trial court’s original

findings of fact and conclusions of law relating to his non-Padilla claims. After all,

it is not reasonable to believe that the trial court would provide several original

findings of fact and at least one conclusion of law which supported granting his non-

Padilla claims if there was no merit to these claims.

2.    The court of appeals erred in ruling that an article 11.072 writ applicant
      is not entitled to a ruling by the trial court on his potentially dispositive
      actual innocence and ineffective assistance claims

      The court of appeals’ Opinion acknowledges that Reyes asserted an actual

innocence claim with regard to the Assault/Family Violence offense of which he was


                                        Page 24
convicted. Its Opinion also acknowledges Reyes’ made an ostensible showing in his

writ application that he was denied effective assistance of counsel because his trial

counsel failed to conduct an independent investigation of the facts and because his

trial counsel had failed to inform Reyes of the law of self defense or how this defense

applied to his case. The court of appeals nonetheless determined that Reyes was not

entitled to relief on these non-Padilla claims even though the trial court addressed

these claims, if not fully, at least to a great extent in its original findings of fact and

conclusions of law.

       There is accordingly no merit to the court of appeals’ assertion in its Opinion

that the trial court “neither identified nor relied on any other theory of law” [other

than Padilla] in vacating Reyes’ judgment of conviction on the Assault/Family

violence charge. By refusing to address Reyes’ non-Padilla claims, the court of

appeals deprived Reyes of a full and fair hearing, and did not address all of the

relevant facts and all of Reyes’ constitutionally-based ineffective assistance of

counsel claims. The court of appeals’ analysis thus disregards the United States

Supreme Court decision in Townsend v. Sain, 372 U.S. 293, at 313 (1963) (overruled

on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)), in which the

United States Supreme Court recognized that “the factfinding procedure employed

by the state court [must be] adequate to afford a full and fair hearing” so as to comply


                                         Page 25
with Fourteenth Amendment Due Process in that:

   [t]here cannot even be the semblance of a full and fair hearing unless the state
   court actually reached and decided the issues of fact tendered by the defendantA
   No relevant findings have been made unless the state court decided the
   constitutional claim tendered by the defendant on the merits.” Id. at 313-14.

The court of appeals also disregarded the United States Supreme Court’s decision in

Castille v. Peoples, 489 U.S. 346, 350 (1989), which held, pursuant to 28 U.S.C. §

2254(b), that federal habeas review will lie where state corrective processes which

are "ineffective to protect the rights of the prisoner."

       The court of appeals in this case therefore erred by taking the position that the

Reyes’ two potentially dispositive non-Padilla claims need not be fully addressed by

the trial court, even though several of the trial court’s findings of fact and at least one

conclusion of law supported Reyes’ non-Padilla claims. Its analysis deprived Reyes

of Due Process of the law under the Fourteenth Amendment by denying him a full

and fair hearing as to all of his potentially dispositive claims. The record reflects that

Reyes’ non-Padilla claims were strong and that they should have been carefully

addressed on appeal rather than just being skimmed over.

        In fact, the evidence adduced at the evidentiary hearing of Reyes’ writ

application through Reyes and three other witnesses established that it was Reyes’

wife, Maldonado, who was the aggressor; that Maldonado went looking for Reyes at

Hector Garcia’s house, where Reyes was residing so that she could confront him and

                                         Page 26
slap him several times on the face; that Maldonado begged Reyes to hit her, which

he refused to do; that Reyes did not strike Maldonado or injure her in any way; and

that Reyes did nothing more than push Maldonado away to protect himself and to

allow him to exit his cousin’s residence so that the matter did not escalate further.

There was also no controverting evidence adduced by the State. Maldonado did not

testify at the evidentiary hearing or provide an affidavit for purposes of this hearing.

         For this reason, the court of appeals’ analysis cannot be reconciled with

Townsend v. Sain, supra, which requires that all state writ applicants be provided a

full and fair hearing as to all fact and constitutional issues which need to be decided.

Nor can it be reconciled with 28 U.S.C. § 2254(b), which provides that that federal

habeas review will lie where state corrective processes are "ineffective to protect the

rights of the prisoner." Under applicable Due Process principles, the court of appeals

was not a full and fair hearing because it ignored all of Reyes’ potentially dispositive

non-Padilla claims and the several findings of fact made by the trial court which

supported these claims and addressed only Reyes’ Padilla claim.

3.    The court of appeals erred by giving binding effect to the trial court’s
      failure to supplement its non-Padilla findings of fact and conclusions of
      law, when the court of appeals restricted the trial court to issuing Padilla-
      related supplemental findings of fact and conclusions of law

      The power of a trial court to act in a given case ends when the appellate record

is filed in the court of appeals, except for matters concerning bond. Duncan v. Evans,
                                        Page 27
653 S.W.2d 38 (Tex.Cr.App.1983). A trial court’s authority to provide additional

findings of fact comes into existence, however, only when an appellate court abates

the appeal for additional findings of fact because a party has requested findings of

fact and the findings made by a trial court are so incomplete that an appellate court

is unable to make a legal determination. State v. Elias, 339 S.W.3d 667, 674

(Tex.Crim.App. 2011)(holding that "[U]pon the request of the losing party on a

motion to suppress evidence, the trial court shall state its essential findings." and

stating that. "[E]ssential findings" mean "findings of fact and conclusions of law

adequate to provide an appellate court with a basis upon which to review the trial

court's application of the law to the facts." Id.; State v. Cullen, 195 S.W.3d 696, 699

(Tex. Crim. App. 2006).

      In its motion to abate and for supplemental findings, the State alleged the

following factual basis as grounds for its request that the trial court should be ordered

to supplement its original findings of fact and conclusions of law in deciding the

merits of Reyes’ appeal:

      With respect to the deficient-performance prong of the Strickland
      standard for ineffective-assistance claims, see Strickland v. Washington,
      466 U.S. 668, 687,104 S.Ct 2052, 80 L.Ed.2d 674, the entirety of the
      trial court’s findings that might be relevant to the issue of deficient
      performance reads as follows:

          12.    The Defendant now claims that his trial counsel did not
                 advise him of immigration consequences and did not

                                        Page 28
                advise him that his plea would subject him to removal from
                the United States....

                                             ****
         14.    Neither the Defendant nor the State called the Defendant’s
                trial counsel to testify. No affidavit from her was presented.
                No transcript of anything stated at the time of the guilty
                plea was submitted....

      The entirety of the trial court’s conclusions of law that might be related
      to the issue of deficient performance reads as follows:

         4.     The only evidence before the Court concerning the
                admonitions of potential immigration consequences is the
                boiler plate sentence in the plea papers, and the
                Defendant’s sworn testimony.

         5.      Under Padilla, as applied retroactively, the Defendant was
                 not sufficiently admonished about immigration
                 consequences. (CR at 132) (emphasis in original).
                                                ***
      The trial court’s findings wholly failed to resolve disputed fact issues
      regarding whether trial court rendered deficient performance by failing
      to properly advise Reyes of the immigration consequences of his guilty
      plea. Specifically, the trial court failed to make findings as to whether
      it found Reyes’s attestations to be credible, and while the trial court
      found that Reyes was “not sufficiently admonished,” the trial court
      failed to specifically find that Reyes was not sufficiently advised by trial
      counsel of the immigration consequences of his guilty plea.

The court of appeals granted the State’s motion for supplemental findings of fact and

conclusions of law and directed the trial court to provide supplemental findings of

fact and conclusions of law in accordance with the content of this motion. That is,

it adopted the State’s assertion in its motion that the immigration consequences Reyes


                                        Page 29
faced and whether he pled guilty based on his trial counsel’s failure to advise him

regarding these immigration consequences represented “The entirety of the trial

court’s findings that might be relevant to the issue of deficient performance.” The

court of appeals also adopted the State’s contention that “The entirety of the trial

court’s conclusions of law that might be related to the issue of deficient performance”

was that of Reyes’ Padilla claim.

      The trial court thus complied with the court of appeals’ order by providing

supplemental findings of fact and conclusions of law limited exclusively to Reyes’

Padilla claim. As the court of appeals instructed, it did not address Reyes’ non-

Padilla claim that his trial counsel failed to conduct an independent investigation of

the facts or Reyes’ claim that his trial counsel failed to advise him on the law of self-

defense and how it applied under the facts of his case, and Reyes’ actual innocence

claim. Nevertheless, the court of appeals construed the trial court’s failure to address

Reyes’ non-Padilla claims as a reason for concluding that the trial court had erred by

setting aside Reyes’ conviction on the Assault/Family Violence charge.

      In other words, the court of appeals weighed and considered the trial court’s

failure to provide supplemental findings of fact and conclusions of law as to

ineffective assistance claims which the trial court was precluded from providing. In

doing so, the court of appeals so far departed from the accepted and usual course of


                                        Page 30
judicial proceedings as to call for an exercise of this Court’s power of supervision.

Reyes asserts that the court of appeals could not reverse the trial court’s order

vacating Reyes’ conviction and sentence because of the trial court failure to

supplement its original findings of fact and conclusions of law with findings of fact

and conclusions of law it was not authorized to supplement. The analysis of the court

of appeals thus disregards this Court’s decisions in State v. Elias, 339 S.W.3d 667,

674 (Tex.Crim.App. 2011) and State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim.

App. 2006), which recognize that a trial court must state all of its essential findings

and conclusions of law in order to provide an appellate court with an adequate basis

to review the trial court's application of the law to the facts.

      The court of appeals further disregarded the rule in Texas that courts of appeals

are not to take on the role of fact finder or consider findings of fact in a piecemeal

fashion. See e.g., State v. Gobert, 275 S.W.3d 888, 891-92 & n. 13

(Tex.Crim.App.2009) (ruling that the trial judge’s suppression ruling on an issue of

historical fact was to be given almost total deference, even if the record might also

support a different conclusion); Wright v. State, 981 S.W.2d 197, 201 (Tex. Crim.

App. 1998) (holding that courts of appeals may not take on the role of fact-finder);

Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996) (ruling that appropriate

balance between a trier of fact’s role as Judge of facts and a reviewing court's duty


                                         Page 31
to review criminal convictions is struck by not allowing appellate court to "find"

facts, or substitute its judgment for that of the trier of fact); State v. Duran, 396 SW

3d 563 (Tex. Crim.App. 2013) (holding that an appellate court must defer to a trial

judge's factual findings which, when viewed piecemeal and in isolation, may be

ambiguous, but, when read in their totality, reasonably support his legal conclusion.

    The un-refuted evidence adduced by Reyes through affidavits and testimony at

the evidentiary hearing established that it was Maldonado who was the aggressor and

not Reyes; that Maldonado had gone looking for Reyes’ at the place where he was

living (with his cousin Hector Garcia) so that she could start trouble; that Maldonado

stormed into Garcia’s residence when allowed inside by Garcia; that Maldonado

immediately confronted Reyes in the kitchen of Garcia’s residence and began

slapping and assaulting Reyes and yelling at him for ending their relationship; and

that Reyes did nothing more than push Maldonado in self defense so that he could get

around her and exit the residence without harming Maldonado. The court of appeals

has thus so far departed from the accepted and usual course of proceedings by

disregarding findings of fact #s 6 through 10, #11, and #14 of the trial court’s original

findings of fact and conclusion of law #6.




                                        Page 32
                                      PRAYER


      Wherefore, Petitioner Reyes respectfully requests this Court to reinstate the

trial court’s judgment; or alternatively, to order the court of appeals to remand the

case to the trial court for supplemental findings of fact and conclusions of law as to

Reyes’ non-Padilla and actual innocence claims.

                                              Respectfully submitted,
                                                  /s/ James D. Lucas
                                              James D. Lucas
                                              Attorney for Juan Carlos Reyes
                                              2316 Montana Avenue
                                              El Paso, Texas 79903
                                              Tel. (915) 532-8811
                                              Fax (915) 532-8807
                                              SBN 12658300


                          CERTIFICATE OF SERVICE


      This is to certify that on December 26, 2014, a true and correct copy of the

Petitioner’s Brief was delivered to the District Attorney, 500 E. San Antonio, El Paso,

Texas 79901 and to the Prosecuting Attorney by electronic means in accordance with

the Texas Rules of Civil Procedure.

                                                  /s/ James D. Lucas
                                              JAMES D. LUCAS


                                       Page 33
               CERTIFICATE OF COMPLIANCE WITH RULE 9.4

         This brief filed in support of thereof comply with the type-volume limitations

of 9.4. The brief contain eight thousand three hundred forty one (8,341) words,

excluding the parts of the brief exempted by 9.4(1); and this brief complies with the

typeface requirements of 9.4(e) because this brief has been prepared in a

proportionally spaced typeface using Corel Word Perfect in Times New Roman, 14-

point.

                                            /s/ James D. Lucas
                                         James D. Lucas




                                         Page 34
                       APPENDIX


EXHIBIT A.   ORIGINAL FINDINGS OF FACT (14) AND CONCLUSIONS
             OFLAW(7)

EXHIBIT B.   MOTIONTOABATEANDREQUESTFOR SUPPLEMENTAL
             FINDINGS OF FACT AND CONCLUSIONS OF LAW

EXHIBIT C.   COURTOFAPPEALSORDER
                                                       '\

EXHIBIT D.   SUPPLEMENTAL FINDINGS OF FACT PROVIDED BY THE
             TRIAL COURT

EXHIBIT E.   COURT OF APPEALS OPINION AND JUDGMENT
EXHIBIT A. ORIGINAL FINDINGS OF FACT (14)
           AND CONCLUSIONS OF LAW (7)
                IN THE COUNTY COURT AT LAW NUMBER SEVEN
                          EL PASO COUNTYt TEXAS


EX PARTE                                    §
                                            §
vs.                                         §               NO. 20050C17647
                                            §
JUAN CARLOS REYES                           §


                 FINDINGS OF FACT AND CONCLUSIONS OF LAW


      The Court hereby makes the following Findings of Fact a11d Conclusions of Law.

FINDINGS OF FACT


      1.     The Defendant, Juan Carlos Reyes, was born on March 10, 1980.

      2.     He has lived continuously in the United States since he was nine years old
             01erified Writ Application, 11 0) and has been a lawful permanent resident since
             2001 (Juan. Carlos Reyes affidavit  ,1).
      3.     Tt;.ere is no evidence of any criminal history other than this particular case.

      4.     The Defendant is the father of three children, all born the United States. (Juan
             Carlos Reyes affidavit 111 ).

      5.     In the present case, the Defendant was charged with Assault Family Viole11ce
             because of an incident occurring on or about September 5, 2005.

      6.     Tile incident occurred at the home ofDefendant~s cousin Hector Garcia, when the
             Defendant's wife (or ex~wife) Hilda Maldonado arrived and a. confrontation arose
             between Ms. Maldonado and the Defendant.

      7.     Portions, but not the entirety, of that confrontation were witnessed or overheard
             by Mr. Garcia and at least two of the Defendant's children (Juan Carlos Reyes,
             Jr., then ten yeats old and Angel, then seven years old).

      8.    There is nothing in the Court's file to indicate that witness statements were ever
            obtained from these individuals and they testified that they did not speak with the
            police. However, there is a supplemental report of Officer 3325 indicating a
            conversation with Mr. Garcia wherein he recounted observing some mutual
            pushing but stated that he did not want to be involved.
 ;.




      9.    That sam.e supple1nental report indicates photos of the complaining witness were
            taken. However, no photos were presented in this Habeas Corpus proceeding.

      10.   The testimony of Mr. Garcia and the children (who admittedly did not see
            everything and who naturally have a motive to support the Defendant) support a
            fmding that Ms. Maldonado was the aggressor and that the Defendant merely
            placed his hands on her to try and get past her to leave.

      11.   Tite criminal chatge against the Defendant was resolved quickly. He met his court
            appointed lawyer at his arraignment/pretrial on February 14, 2006. He had a
            second meeting on March 16, 2006, and entered a guilty plea 011 March 30, 2006.
            (Juan Carlos Reyes affidavit ~2-4). It appears fTom the Court's file that the Plea
            recomm.endation which formed the basis of the plea was also prepared on March
            30,2006.

      12.   The Defen.drutt now claims that his trial coun.se1 did not advise him of
            immigration consequences and did not advise him that his plea would subject him
            to removal from the United States. (Juan Carlos Reyes affidavit ~18)

      13.   The Defendant did sign plea papers which contain standard              ~'boiler   plate"
            lattgua.ge which states:

                   "I further understand that in the event I atn not a citizen of the
                   U.S.A., n1y plea of guilty may result in deportation, exclusion
                   from admission to the U.S.A. or denial of naturalization under
                   federal law."

      14.   Neither the Defendant nor the State called the Defendanes trial counsel to testify.
            No affidavit from her was presented. No tTanscript of anything stated at the time
            of the guilty plea was submitted. The Court takes judicial notice of the normal
            practice in El Paso County to not make a record of misdemeanor pleas.

CONCLUSIONS OF LAW


      1.    The Supreme Court decision of Padilla v. Kentucky, 130 S. Ct. 1.473 (2010)
            eliminates all ambiguity and holds that a Defendant must be given a full and
            complete explanation of immigration consequences in order for a. plea to be
            volu:ntru.ily entered.

      2.    Texas Courts apply Padilla retroactively. Ex Parte De Los Reyes, 350 S.W. 3rd
            723 (Tx. App. ~ El Paso 2011); Ex Parte Tanldevskaya 361 S.W. 3rd 86 (Tx. App.
            ~ Houston 2011); Aguilar v. State,~ S.W. 3rd _ , (Tx. App. 1.4111 District)
            (July 10, 2012.)
     3.     Merely stating that a guilty plea "may" have immigration consequences does not
            meet the Padilla requirements. Unless the law is ambiguous, a Defendant must
            be definitively advised of deportation or removal consequences. Aguilar v. State,
            supra.

     4.     The only evidence before the Court concerning the admonition of potential
            immigration consequences is the boiler plate sentence in the plea papers, and the
            Defendant's written sworn testimony.

      5.    Under Padilla, as now applied retroactively, the Defendant was not sufficiently
            admonished about immigration consequences.

      6.    The Defendant was prejudiced because he would not have plead guilty had he
            known of the deportation/removal consequences, and because he has plausible
            defenses to the underlying charge which, if believed by a jury, could result in an
            acquittal.

      7.    Therefore, the writ is GRANTED. The Defendant's conviction is hereby
            VACATED and set aside. The underlying Assault Family Violence charge is to
            be reinstated on the Court's trial docket and promptly scheduled for trial.


             Signed and entered this _i:_ day of    (:\   :::::?:s:   '2012.




cc: James Lucas
    ADA Shrode
EXHIBIT B. MOTION TO ABATE AND REQUEST FOR
           SUPPLEMENTAL FINDINGS OF FACT AND
           CONCLUSIONS OF LAW
                                           No. 08-12-00261-CR
         JAN 30 1.013
                                    IN THE
      DfNiSE PACHECO, CLERK   COURT OF APPEALS
     E\GHTH COURt OF APPEA'iiGHTH DISTRICT OF TEXAS




                              EX PARTE: JUAN CARLOS REYES



                                                                                                        FILED .IN
                 STATE'S MOTION TO ABATE THE APPEAL AND                                               COURT   c..:~   APPEA.LS
                 REMAND THE CASE TO THE TRIAL COURT FOR
                     SUPPLEMENTAL FINDINGS OF FACT
                         AND CONCLUSIONS OF LAW


TO THE COURT OF APPEALS, EIGHTH DISTRICT OF TEXAS:

        COMES NOW, the State of Texas in the above styled and numbered cause,

and submits that the appeal should be abated and the case remanded to the trial

court for supplemental findings of fact and conclusions of law, and would show

the Court as follows:

I.      Procedural history

        On March 30, 2006, Juan Carlos Reyes pleaded guilty to the offense of

family-violence assault in a case styled, The State ofTexas v. Juan Carlos Reyes,

trial court cause number 20050C17647. (CR 2-3). 1 On March 2, 2012, Reyes

         1
          Throughout this motion, 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 reporters's record will be made as "RR" and volume and
page number, and references to exhibits will be made as either "SX" or "DX" and exhibit number.
filed an application for writ ofhabeas corpus under article 11.072 of the Code of

Criminal Procedure. (CR at 24-50). After hearing evidence and arguments during

two writ hearings, the trial court took the matter under advisement. (RR 3 at 33-

35); see generally (RR 2 at 5-91; (RR 3 at 12-35). On August 6, 2012, the trial

court signed a written order granting Reyes relief on his application for writ of

habeas corpus, and as part of that written order, issued findings of fact and

conclusions of law. (CR at 130-32). On August 7, 2012, the trial court eritered

another written order granting Reyes relief and vacating his conviction. (CR at

129).

II.     Because the trial court's findings and conclusions are inadequate and
        incomplete, this Court should remand the case and direct the trial court
        to supplement the record with the missing findings and conclusions.

        Section 7(a) of article 11.072 provides that if the trial court determines from

the face of an application or documents attached to the application that the

applicant is manifestly entitled to no relief, the trial court shall enter a written

order denying the application as frivolous. See TEX. CRIM. PROC. CODE art.

11.072 § 7(a). In all other cases, the trial court's written order granting or denying

relief must include findings of fact and conclusions of law. See art. 11.072 § 7(a);

see also Ex parte Villanueva, 252 S.W.3d 391, 396 (Tex.Crim.App. 2008)

(holding that in all other cases where the trial court does not deny the writ

                                            2
application as frivolous, "[t]he trial judge is required to enter findings of fact and

conclusions of law along with a written order... "); Ex parte Enriquez, 227 S.W.3d

779, 784 (Tex.App.-El Paso 2005, pet. ref' d); Ex parte Ali, Nos. 03-10-00206-CR,

03-10-00207-CR, 2010 WL 5376860 at *2 (Tex.App.-Austin, Dec. 15, 2010, no

pet.)(mem. op.) (not designated for publication) (holding that where the trial court

does not deny the writ application as frivolous, the court's written order granting

or denying relief must include findings of fact and conclusions of law).

       The Court of Criminal Appeals has recently held that when a trial court

enters findings of fact, it has an obligation to make "findings and conclusions that

[are] adequate and complete, covering every potentially dispositive issue that

might reasonably be said to have arisen in the course ofthe ... proceedings." See

State v. Elias, 339 S.W.3d 667, 676 (Tex.Crim.App. 2011). The Court of Criminal

Appeals has further disapproved of the trial court's failure to make credibility

determinations and the use of "weasel words" that fail to convey a straightforward

historical fact:

       ... the judge stated that ... [the officer] "testified" that he stopped appellee
       "because she weaved within a lane a few times, veered to the right and.
       braked erratically." Clearly, the officer "testified" to those facts; any
       reviewing court can read the record and see Officer Davila's testimony, but
       did the trial judge believe that testimony? See State v. Mendoza, 365
       S.W.3d 666, 671 (Tex.Crim.App. 2012).



                                           3
      When a trial court fails to make findings regarding potentially dispositive

fact issues, the reviewing court should remand the case and direct the trial court to

supplement the record with the missing findings and conclusions. See Elias, 339

S.W.3d at 676-77. In this case, the trial court failed to make findings regarding

potentially dispositive fact issues, failed to make essential credibility

determinations, and used "weasel words" that failed to convey straightforward

facts that support its ruling.

      With respect to the deficient-performance prong of the Strickland standard

for ineffective-assistance claims, see Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the entirety ofthe trial court's findings

that might be relevant to the issue of deficient performance reads as follows:

       12.   The Defendant now claims that his trial counsel did not advise him of
             immigration consequences and did not advise him that his plea would
             subject him to removal from the United States ....
                                      * * *
       14.   Neither the Defendant nor the State called the Defendant's trial
             counsel to testify. No affidavit from her was presented. No transcript
             of anything stated at the time of the guilty plea was submitted.... (CR
             at131).

      The entirety of the trial court's conclusions of law that might be related to

the issue of deficient performance reads as follows:




                                           4
      4.     The only evidence before the Court concerning the admonition of
             potential immigration consequences is the boiler plate sentence in the
             plea papers, and the Defendant's written sworn testimony.
      5.     Under Padilla, as now applied retroactively, the Defendant was not
             sufficiently admonished about immigration consequences. (CR at
             132) (emphasis in original).

      The trial court's findings and conclusions constitute nothing more than a

restatement ofReyes's writ claims or a recitation of the evidence that was or was

not presented at the writ hearing. The trial court's findings wholly failed to

resolve disputed fact issues regarding whether trial counsel rendered deficient

performance by failing to properly advise Reyes of the immigration consequences

of his guilty plea. Specifically, the trial court failed to make findings as to

whether it found Reyes's attestations to be credible, and while the trial court found

that Reyes was "not sufficiently admonished," the trial court failed to specifically

find that Reyes was not sufficiently advised by trial counsel of the immigration

consequences of his guilty plea.

      The trial court's findings are thus inadequate and incomplete, and this Court

should remand the case and direct the trial court to supplement the record with the

missing findings and conclusions. See Ex parte Flores, No. AP-76,862, 2012 WL

6027333 at* 1, 5 (Tex.Crim.App., Dec. 5, 2012) (not yet reported) (rejecting the

trial court's findings of fact and conclusions of law where the trial court's findings



                                           5
were largely a recitation of the evidence presented at the writ hearing and did

nothing more repeat and restate of the parties' arguments); Elias, 339 S.W.3d at

6 7 6-77. This is particularly important because the trial court appeared to opine at

the writ hearing that he was not required to find that counsel performed deficiently

in order to grant relief on Reyes's ineffective-assistance claim:

[State]:     The other thing that I did just want to point out, Your Honor, is that I
             do believe that there is a- there's credible proof that he did not
             obtain an affidavit from the trial attorney, Wendy Ferrell. I've seen
             ~ituations where the attorney says, I didn't really tell him that. I think
             that's problematic. Really, what we're doing is doing a little more
             than just setting aside the conviction. We're saying that Wendy
             Ferrell was incompetent. I do not believe- you know, I'm concerned
             in this situation.
[Court]:     I'm not sure we are saying that, because I think this was an '05 case.
             And I think Padilla came out- I don't remember when. I'm pretty
             sure it was way after '05.
                    I think Ms. Ferrell, when she did it, may well have been
             perfectly consistent with- their plea was entered in March of-
[State]:     If that's the case, that was prePadilla. Padilla changed the landscape.
                    If that's the case, this case- Padilla does not apply
             retroactively .... (RR 3 at 30-31).
                                      * * *
[State]:     I guess my point is: If you are saying it's retroactive, you're saying
             that has always been the law, that she was required to have told him
             that. By not doing so, she was incompetent.
[Court]:     Well, I don't share your view as to what that means, I don't think ....
             (RR 3 at 32).

       With respect to the prejudice prong of the Strickland standard for

ineffective-assistance claims, the trial court concluded that "[t]he Defendant was



                                          6
prejudiced because he would not have plead guilty had he known of the

deportation/removal consequences, and because he has plausible defenses to the

underlying charge which, ifbelieved by a jury, could result in an acquittal." (CR

at 132). But the trial court failed to make specific fact findings that Reyes attested

that he would have pleaded not guilty and would have insisted on trial and that the

trial court found those attestations to be credible. There are, in fact, no factual

findings that support the trial court's conclusion that Reyes would have pled not

guilty had he known of the immigration consequences of doing so.

      The trial court also failed to make specific findings and conclusions

addressing and resolving the State's argument that any decision by Reyes to reject

the plea bargain and proceed to trial would not have been objectively rational

under the circumstances. (CR at 65-69); (RR 3 at 24-30); see also Padilla v.

Kentucky, ---U.S.---, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (201 0) (holding that

in order to obtain relief on an ineffective-assistance claim, an applicant "must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances"). The trial court's findings and conclusions are

thus inadequate and incomplete in these respects as well.




                                           7
      For all the foregoing reasons, this Court should remand the case and direct

thetrial court to supplement the record with the missing findings of fact and

conclusions of law. See, e.g., Ex parte Flores, 2012 WL 6027333 at* 1, 5; Elias,

339 S.W.3d at 676-77.




                                         8
                                     PRAYER

      WHEREFORE, the State prays that this Court abate the appeal and remand

the case to the trial court for supplemental findings of fact and conclusions of law.

                                       Respectfully submitted,

                                       JAIME ESPARZA
                                       DISTRICT ATTORNEY
                                       34th JUDICIAL DISTRICT




                                       ASST. DISTRICT ATTORNEY
                                       201 EL PASO COUNTY COURTHOUSE
                                       500 E. SAN ANTONIO
                                       EL PASO, TEXAS 79901
                                       (915) 546-2059 ext. 3769
                                       FAX (915) 533-5520
                                       SBN 24046929

                                       ATTORNEYSFORTHESTATE

                          CERTIFICATE OF SERVICE

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

mailed by certified mail on January 31, 2013, to appellee's attorney: James D.

Lucas, 2316 Montana Ave., El Paso, Texas 79903.



                                       L~M~
                                          9
EXHIBIT C. COURT OF APPEALS ORDER
•




                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                      §
      EX PARTE: JUAN CARLO$ REYES,                                  No. 08-12-00261-CR
                                                      §
                           Appellant.                                  Appeal from the
                                                      §
                                                                 County Court at Law No. 7
                                                      §
                                                                  of El Paso County, Texas
                                                      §
                                                                 (TC# 20050Cl7647-CC7-1)
                                                      §

                                                      §

                                                ORDER
            The Court has considered the State's motion to abate the appeal and remand the case to the
    trial court for supplemental findings of fact and conclusions of law and ORDERS the folloWing:

           1.     The State's motion to abate the appeal and remand the case for supplemental findings
                  of fact and conClusions
                                 '
                                          of Jaw is GRANTED.
                                                       .



           2.     The appeal is ABATED and the Honorable Thomas A. Spieczny, Judge for County
                  Court at Law N,o. 7, is directed to enter the missing findings of fact and conclusions
                  of law.

           3.     A supplemental clerk's record containing the findings of fact and conclusions of law
                  shall be filed with this Court within 30 days from the date of this order.

           IT IS SO ORDERED ~is 14th day of February, 2013.


                                                 PER CURIAM

    Before McClure, C.J., Rivera imd Rodriguez, JJ.
EXHIBIT D. SUPPLEMENTAL FINDINGS OF FACT
           PROVIDED BY THE TRIAL COURT
                                                  flLEO FOR RECOP.t!l
                   INTHECOUNTYCOURTATLAWNUMBERSEVEN \N HY OFFICE
                           EL PASO COUNTY, TEXAS
                                                                                 1013 APR 29 AM 10: 32
EX PARTE                                      §
                                              §
vs.                                           §
                                              §
JUAN CARLOS REYES                             §

                                 SUPPLEMENTAL
                   FINDINGS OF FACT AND CONCLUSIONS OF LAW


       On August 6, 2012, this Court filed Findings of Fact and Conclusions of Law. On
January 20, 2013, the State filed a Motion which requested Supplemental Findings of Fact and
Conclusions of Law. That Motion was not served on this Court. Having recently learned of the
Motion, the Court now supplements its prior Findings and Conclusions.

SUPPLEMENTAL FINDING OF FACT #1

        The Court makes the finding that Juan Carlos Reyes was not advised that a guilty plea
would subject him to deportation. This Finding is based upon the affidavit which the Court finds
to be completely credible on this issue. It is also based on timing of events set out in the original
Finding of Fact #11. Therefore, the Court finds that neither defense counsel, nor the assistant
District Attorney, nor the Judge who heard the plea properly admonished the Defendant about
deportation.

SUPPLEMENTAL FINDING OF FACT #2

        The Court further finds that the Defendant would absolutely positively NOT have plead
guilty if he had been advised that doing so would lead to deportation. This finding is based upon
the fact that nobody other than an appellate lawyer straining to concoct an argument could
conceivably choose deportation and permanent banishment from the United States rather than
face the risk of a misdemeanor prosecution. (See Supplemental Finding #3)

SUPPLEMENTAL FINDING OF FACT #3

        The Court rejects as utterly groundless the State's argument that rejecting the plea
bargain and proceeding to trial would not have been objectively rational under the circumstances.
The Court takes judicial notice of the following data. received from the Office of Court
Administration. In 2005 (the year of Juan Carlos Reyes' case) there were 1,684 dispositions of
Assault Family Violence cases. There were 603 findings of guilt or guilty pleas and 1.081
findings of not guilty or dismissals. The guilty category included 203 cases of straight probation,
183 cases of deferred adjudication probation and only 217 cases with jail sentences. More than
half of those jail sentences were for less than 60 days. This data (which presumably has always
..


     been available to the State) totally undermines the claim that Juan Carlos Reyes had to take the
     plea to avoid the harsh consequences of proceeding further through the judicial process.

     SUPPLEMENTAL FINDING OF FACT #4

               Having already determined that no rational person would voluntarily choose deportation
       over the "risks" of pleading not guilty, it is almost unnecessary to point out that certainly, a
       father of United States citizen children would be even less inclined to do so. The two children
       who testified were attractive, smart, polite and well behaved.                It is TOTALLY
     · INCONCEIVABLE that a parent would voluntarily choose to be permanently separated from
       them rather than to face the ''risks" of misdemeanor prosecution.

     SUPPLEMENTAL CONCLUSION OF LAW #1

             The Court's original Conclusion of Law #2 concerning the retroactive applicability of
     Padilla v. Kentuck;y must now be reconsidered in light of an intervening Supreme Court ruling.
     In Chaidez v. U.S., 113 S. Ct. 1103 (2013), the Court held that Padilla did not apply retroactively
     in a federal felony conviction case.


                    Signed and entered this ~~ day of April, 2013.




                                                       ~f'\.::5v\
                                                          TOM SPIECZNY,      JUD~'d:
     cc: James Lucas
         ADA Shrode
EXHIBIT E. COURT OF APPEALS OPINION
           AND JUDGMENT
                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                          §
                                                                             No. 08-12-00261-CR
                                                          §
                                                                                Appeal from the
                                                          §
    EX PARTE: JUAN CARLOS REYES                                           County Court at Law No. 7
                                                          §
                                                                                of El Paso, Texas
                                                          §
                                                                         (TC# 20050C17647-CC7-1)
                                                          §

                                                  OPINION

         The State of Texas appeals the trial court’s order granting Juan Carlos Reyes’s application

for writ of habeas corpus. In three issues, the State contends the trial court abused its discretion in

granting habeas relief based on ineffective assistance of counsel.                      We reverse and render

judgment reinstating Reyes’s guilty plea.

                         FACTUAL AND PROCEDURAL BACKGROUND

         Reyes is not a United States citizen.1 In 2006, he pled guilty to the misdemeanor offense

of family violence against his then-wife, Hilda Maldonado.                          Reyes was convicted and

subsequently taken into custody by immigration officials. While in custody, Reyes filed an


1
  It is unclear from the record what Reyes’s immigration status is. Reyes alleged in his application for writ of habeas
corpus that he was not a permanent resident but had legal authorization to remain in the United States. However, in
his affidavit in support of his application, Reyes averred he had been a lawful permanent resident since 2001.
Reyes’s mother testified at one of the hearings on the application that Reyes had been a permanent resident since 2001.
application for writ of habeas corpus seeking to vacate and set aside his conviction on several

grounds. Reyes asserted his trial counsel was ineffective for failing to: (1) inform him that his

plea would lead to removal; (2) conduct an independent investigation; and (3) advise him on the

law of self-defense. Reyes also asserted that his plea was not knowingly and intelligently made

and that he was actually innocent. In support of his application, Reyes submitted his affidavit, an

affidavit from his cousin, and statements from two of his sons.2 In his affidavit, Reyes averred to

the facts alleged in his application, including the allegation that he would not have accepted the

guilty plea if he had known he would be subject to removal from the United States and would have

opted for a trial and risked jail time as an alternative to removal.

           The trial court held a hearing on the application.3 The trial court heard the testimony of

several character witnesses, each of whom testified Reyes was honest and peaceful. The trial

court also heard the testimony of three witnesses who were present during the altercation between

Reyes and Maldonado.               All three testified that Reyes and Maldonado were arguing, that

Maldonado was the aggressor, and that Reyes did not strike Maldonado. Two further testified

that Maldonado invited Reyes to strike her, and one of them added that Maldonado slapped and

scratched Reyes.

           After taking the matter under advisement, the trial court granted Reyes’s application. In

its order, the trial court stated it was granting relief “[o]n the basis of [its] findings of fact and

conclusions of law and the constitutional grounds identified therein[.]” Among the trial court’s

fourteen findings of fact, three are germane to the issue now before us. They declare:

           12. The Defendant now claims that his trial counsel did not advise him of

2
    The trial court permitted Reyes to supplement the record with his affidavit.
3
    The hearing was continued twice.
                                                            2
       immigration consequences and did not advise him that his plea would subject him
       to removal from the United States . . . .

       13. The Defendant did sign plea papers which contain standard ‘boiler plate’
       language which states:

               I further understand that in the event I am not a citizen of the U.S.A.,
               my plea of guilty may result in deportation, exclusion from
               admission to the U.S.A. or denial of naturalization under federal
               law.

       14. Neither the Defendant nor the State called the Defendant’s trial counsel to
       testify. No affidavit from her was presented. No transcript of anything stated at
       the time of the guilty plea was submitted. The Court takes judicial notice of the
       normal practice in El Paso County to not make a record of misdemeanor pleas.

Of the trial court’s seven conclusions of law, six are pertinent. They read as follows:

       1. The Supreme Court decision of Padilla v. Kentucky, [559 U.S. 356,] 130 S.Ct.
       1473[,176 L.Ed.2d 284] (2010) eliminates all ambiguity and holds that a Defendant
       must be given a full and complete explanation of immigration consequences in
       order for a plea to be voluntarily entered.

       2. Texas Courts apply Padilla retroactively. Ex Parte De Los Reyes, 350 S.W.3rd
       723 (Tx. App. – El Paso 2011); Ex Parte Tanklesvskaya[,] 361 S.W.3rd 86 (Tx.
       App. – Houston 2012); Aguilar v. State, ___ S.W.3rd ___, (Tex. App. 14th District)
       (July 10, 2012.)[.]

       3. Merely stating that a guilty plea ‘may’ have immigration consequences does
       not meet the Padilla requirements. Unless the law is ambiguous, a Defendant must
       be definitely advised of deportation or removal consequences. Aguilar v. State,
       supra.

       4. The only evidence before the Court concerning the admonition of potential
       immigration consequences is the boiler plate sentence in the plea papers, and the
       Defendant’s written sworn testimony.

       5. Under Padilla, as now applied retroactively, the Defendant was not sufficiently
       admonished about immigration consequences.

       6. The Defendant was prejudiced because he would not have plead guilty had he
       known of the deportation/removal consequences and because he has plausible
       defenses to the underlying charge which, if believed by a jury, could result in an
       acquittal.

                                                  3
       On appeal, the State moved to abate and remand the case to the trial court for supplemental

findings of fact and conclusions of law. We granted the State’s motion, and the trial court

complied. Of the trial court’s four supplemental findings, two are relevant. They decry:

              The Court makes the finding that . . . Reyes was not advised that a guilty
       plea would subject him to deportation. This Finding is based upon the affidavit
       which the Court finds to be completely credible on this issue.

                                 .                .               .

              The Court further finds that the Defendant would absolutely positively
       NOT have plead guilty if he had been advised that doing so would lead to
       deportation.

In its one supplemental conclusion of law, the trial court retreated from one of its original

conclusions of law when it resolved:

              The Court’s original Conclusion of Law #2 concerning the retroactive
       applicability of Padilla v. Kentucky must now be reconsidered in light of an
       intervening Supreme Court ruling. In Chaidez v. U.S., 113 S.Ct. 1103 (2013), the
       Court held that Padilla did not apply retroactively in a federal felony conviction
       case.

                 INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON
                     RETROACTIVE APPLICATION OF PADILLA

       In its first issue, the State contends the trial court abused its discretion in granting habeas

relief on the basis of Padilla because Padilla created a new rule that did not apply retroactively to

Reyes’s case. We agree.

                                        Standard of Review

       An 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. Kniatt v. State, 206 S.W.3d

657, 664 (Tex.Crim.App. 2006). An appellate court reviewing a trial court’s ruling on a habeas


                                                 4
application must view the evidence presented in the light most favorable to the trial court’s ruling

and must uphold that ruling absent an abuse of discretion. Kniatt, 206 S.W.3d at 664. A trial

court abuses its discretion when it rules on the basis of an erroneous legal standard, even if that

standard may not have been clearly erroneous when the ruling was made. See Nicholas v. State,

56 S.W.3d 760, 764 (Tex.App.--Houston [14th Dist.] 2001, pet. ref’d)(“A trial court abuses its

discretion when it applies an erroneous legal standard or when no reasonable view of the record

supports the trial court’s conclusion under the correct law and facts viewed in the light most

favorable to its legal conclusion.”); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.

1996)(rejecting a party’s claim that a trial court could not have abused its discretion in resolving an

issue of first impression because an “erroneous legal conclusion, even in an unsettled area of law,

is an abuse of discretion”); McGary v. Scott, 27 F.3d 181, 183 (5th Cir. 1994)(stating that a federal

district court abuses its discretion when it relies on an erroneous legal conclusion or clearly

erroneous finding of fact to dismiss a second or subsequent federal habeas petition for abuse of the

writ).

                                           Applicable Law

         A defendant is entitled to effective assistance of counsel when entering a guilty plea. Hill

v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985); Ex parte

Harrington, 310 S.W.3d 452, 458 (Tex.Crim.App. 2010). To prevail on an ineffective assistance

of counsel claim, an appellant must meet the two-pronged test set out in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Texas Court of Criminal

Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986). See also, Lopez v. State,

343 S.W.3d 137, 142 (Tex.Crim.App. 2011). Under that test, the appellant must show both that


                                                  5
counsel’s representation fell below an objective standard of reasonableness and the deficient

performance prejudiced the defense. See Lopez, 343 S.W.3d at 142. If the appellant fails to

show either deficient performance or sufficient prejudice, he cannot succeed in proving

ineffectiveness. Strickland, 466 U.S. at 697, 104 S.Ct. at 2070; Perez v. State, 310 S.W.3d 890,

893 (Tex.Crim.App. 2010).

                                             Discussion

       Reyes cannot rely on the retroactive application of Padilla to prove his trial counsel’s

performance was constitutionally infirm.

       It is evident from the trial court’s original and supplemental findings of fact and

conclusions of law that the trial court relied on Padilla in concluding Reyes’s trial counsel

rendered ineffective assistance, thereby entitling Reyes to habeas corpus relief. In Padilla, the

Supreme Court decided counsel had engaged in deficient performance under the first prong of the

two-pronged test set out in Strickland by failing to advise his client that a guilty plea made him

subject to deportation. Padilla v. Kentucky, 559 U.S. 356, 377, 130 S.Ct. 1473, 1488, 176

L.Ed.2d 284 (2010). The Supreme Court, however, did not address the question of whether its

holding in Padilla applied retroactively so as to permit defendants whose convictions were already

final at the time it issued its opinion to seek relief on this basis in a collateral proceeding. That

question was answered in the negative three years later.

       In Chaidez v. United States, the Supreme Court held that Padilla announced a new rule of

criminal procedure and, therefore, it does not apply retroactively. --- U.S. ---, ---, 133 S. Ct. 1103,

1107, 1113, 185 L.Ed.2d 149 (2013). Relying upon the reasoning in Chaidez, the Texas Court of

Criminal Appeals subsequently held that Padilla does not apply retroactively under the Texas


                                                  6
Constitution. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013)(explicitly

declining opportunity to accord retroactive effect to Padilla as matter of state habeas law).

       Here, Reyes pled guilty in 2006 and did not appeal his conviction. This conviction thus

became final before the Supreme Court decided Padilla.            Because Padilla does not apply

retroactively, Reyes cannot rely on Padilla in this proceeding to argue his trial counsel rendered

ineffective assistance for failing to inform him that his plea would lead to removal. See Chaidez,

--- U.S. at ---, 133 S. Ct. at 1113 (“Under Teague [v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103

L.Ed.2d 334 (1989)], defendants whose convictions became final prior to Padilla therefore cannot

benefit from its holding.”); De Los Reyes, 392 S.W.3d at 679 (“Applicant may not rely on Padilla

in arguing that he was denied effective assistance of counsel.”).

       Reyes does not argue Chaidez and De Los Reyes are not controlling here. Nor does he

argue his counsel’s failure to inform him of the immigration consequences of his guilty plea

constituted ineffective assistance under pre-Padilla law. Indeed, Reyes made no such claim in his

writ application. Instead, Reyes attacks the alternative arguments raised by the State in its second

and third issues. In those issues, the State argues, even if Padilla applies retroactively, Reyes has

nonetheless failed to establish deficient performance and sufficient prejudice under Strickland.

       In attacking the State’s alternative arguments, Reyes contends the trial court’s ruling

should be affirmed for two reasons. First, Reyes asserts the State failed to demonstrate how the

trial court’s original and supplemental findings of fact and conclusions of law do not support

granting habeas relief on the other grounds raised by Reyes in his writ application. Second and

alternatively, Reyes maintains that, if we conclude the trial court’s findings of fact and conclusions

of law are insufficient or inadequate to support the trial court’s ruling, we should remand the case


                                                  7
back to the trial court to develop the record rather than reverse and reinstate his conviction.

         We do not dispute the trial court made additional findings of fact that could ostensibly

support Reyes’s claims he was actually innocent and he received ineffective assistance because his

counsel failed to conduct an independent investigation and inform him of the law of self-defense.

However, it is clear from the trial court’s original and supplemental conclusions of law that the

trial court relied on the retroactive application of Padilla to conclude Reyes proved deficient

performance under the first prong of Strickland. The trial court neither identified nor relied on

any other theory of law to support its ruling, and under pre-Padilla law, Reyes’s plea would not be

rendered involuntary under the United States or Texas Constitutions even if his attorney failed to

inform him of the immigration consequences of his plea. See State v. Jimenez, 987 S.W.2d 886,

888-89 (Tex.Crim.App. 1999)(holding habeas applicant not entitled to relief on claim his attorney

failed to inform him of immigration consequence of his guilty plea because no such admonition

was constitutionally required). Because Padilla does not apply retroactively and pre-Padilla law

does not require admonishments of immigration consequences, Reyes has failed to establish his

trial counsel rendered deficient performance under Strickland. By failing to so establish, Reyes

has not proved his counsel’s performance was constitutionally infirm. Accordingly, we conclude

the trial court abused its discretion in granting Reyes habeas corpus relief on his claim that counsel

did not adequately inform him of the immigration consequences of his plea.

         The State’s first issue is sustained.4

                                                 CONCLUSION

         The trial court’s order granting relief is reversed, and Reyes’s guilty plea is reinstated.5

4
  Given our disposition of the appeal based on the State’s first issue, we need not address the State’s second and third
issues. See TEX.R.APP.P. 47.1.

                                                           8
                                                         /s/ Yvonne T. Rodriguez
June 30, 2014                                           YVONNE T. RODRIGUEZ, Justice

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

(Do Not Publish)




5
  We decline Reyes’s invitation to remand the case to the trial court to allow him to further develop the record. An
appellate court may remand a habeas proceeding to the trial court for further proceedings if the factual record has not
been sufficiently developed. See Ex parte Cherry, 232 S.W.3d 305, 308 (Tex.App.--Beaumont 2007, pet. ref’d).
Additionally, an appellate court may remand where the record is not sufficiently developed regarding alleged
prejudice. See Aguilar v. State, 375 S.W.3d 518, 526 (Tex.App.--Houston [14th Dist.] 2012), rev’d on other grounds,
393 S.W.3d 787 (Tex.Crim.App. 2013). Here, Reyes was given a meaningful opportunity at two hearings to develop
an evidentiary record to support his claim of ineffective assistance of counsel. There is nothing that indicates the trial
court unduly restricted Reyes’s ability to develop relevant evidence addressing the issues in dispute. Compare Ex
parte Hernandez, 398 S.W.3d 369, 375 (Tex.App.--Beaumont 2013, no pet.)(remand appropriate to develop record
because trial court unduly restricted the development of the record by confining evidence to the prior plea proceedings
in face of counsel’s efforts to offer other clearly relevant evidence).
                                                            9
                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
                                                                No. 08-12-00261-CR
                                                §
                                                                  Appeal from the
                                                §
 EX PARTE: JUAN CARLOS REYES                                 County Court at Law No. 7
                                                §
                                                                  of El Paso, Texas
                                                §
                                                            (TC# 20050C17647-CC7-1)
                                                §

                                           JUDGMENT

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

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

reinstating Appellant’s guilty plea, in accordance with the opinion of the Court. This decision

shall be certified below for observance.


       IT IS SO ORDERED THIS 30TH DAY OF JUNE, 2014.


                                             YVONNE T. RODRIGUEZ, Justice

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