                                                                                     ACCEPTED
                                                                                03-14-00288-CR
                                                                                       3617278
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                          12/30/2014 2:18:31 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                               CAUSE NO.
                              03-14-00288-CR

                ***********************************
                                                                FILED IN
                                                         3rd COURT OF APPEALS
                                                              AUSTIN, TEXAS
                                                         12/30/2014 2:18:31 PM
                    IN THE COURT OF APPEALS
                                                             JEFFREY D. KYLE
                                FOR THE                           Clerk
                    THIRD DISTRICT OF TEXAS

                ***********************************




          Ex parte BRIAN STANLEY GRANADOS, Appellant
                                    V.

                     STATE OF TEXAS, Appellee

                **********************************




              Appeal From the 22nd Judicial District Court
                       Cause No. CR-11-0311-A
                          Hays County, Texas

                **********************************


                           STATE'S BRIEF
                ***********************************


                       Angie D. Roberts-Huckaby
                    Asst. Criminal District Attorney
                      Hays County Justice Center
                  712 South Stagecoach TraO, Ste. 2057
                       San Marcos, Texas, 78666
                               512-393-7600
                      Angie.roberts@co.hays.tx.us
                        State Bar No. 24081797
                     Attorney for the State of Texas

Oral Argument Not Requested
                NAMES OF PARTIES



Appellant:      Brian Stanley Granados

Attorneys for   Sherri K. Tibbe, Criminal District Attorney
the State:      Hays County Government Center
                712 South Stagecoach Trail, Ste. 2057
                San Marcos, Texas 78666

At trial:       John Couch, ADA


On appeal:      Angie D. Roberts-Huckaby, ADA

Attorneys for
Appellant:

At trial:       Leonard Martinez
                812 San Antonio, Suite 104
                Austin, Texas 78701


On appeal:      Leonard Martinez
                812 San Antonio, Suite 104
                Austin, Texas 78701


Trial Judge     Hon. Jack Robison
                           TABLE OF CONTENTS




NAMES OF PARTIES                                                                      i


TABLE OF CONTENTS                                                                    ii


TABLE OF AUTHORITIES                                                                iii


ISSUES PRESENTED                                                                     1


STATEMENT OF THE CASE                                                                1


STATEMENT OF FACTS                                                                   3


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

   the burden of proof that the facts entitle him to relief and the trial court, as the

   fact-fmder, is the exclusive judge of witness credibility                         3

CONCLUSION & PRAYER                                                                  6


CERTIFICATE OF SERVICE                                                               7


CERTIFICATE OF COMPLIANCE                                                            7


APPENDIX A                             :                                             8




                                           n
                          TABLE OF AUTHORITIES



Federal Cases


Strickland v. Washington, 466 U.S. 668 (1984)              7

State Cases


State V. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013)   7

State Statutes


Tex. R. Civ. P. 1.02 (a)(3)                                9




                                       111
                               ISSUES PRESENTED



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

burden of proof that the facts entitle him to relief; the trial court, as the fact-finder,

is the exclusive judge of witness credibility. Here, Granados himself gave the sole

testimony supporting his claim of ineffective assistance of counsel and failed to

call trial counsel to testify. Did the trial court abuse its discretion by denying the

post-conviction writ of habeas corpus when the trial court is the exclusive judge of

credibility?


                           STATEMENT OF THE CASE



       Brian Stanley Granados ("Granados") was indicted for the offense of

Possession of Marijuana-fifty pounds or less but more than five pounds, a third

degree felony, on April 14, 2011.^ Granados signed a plea bargain agreement that

probated two years of confinement in TDCJ to five years of community

supervision, a fine and fees, treatment and counseling, and 200 hours of




^(CR 4).
community service restitution.^ On September 29, 2011, Granados waived his right

to appeal as part of the plea bargain agreement.^ Granados was convicted and
sentenced to the terms set forth in the plea bargain agreement."^ On October 11,
2012, the State filed a Motion to Revoke Community Supervision and Impose

Sentence against Granados for violating the terms and conditions of his community

supervision.^

       Granados filed for Writ of Habeas Corpus on January 7, 2014 and the State

responded on March 11, 2014.^ The court recommended denying the writ on
March 13, 2014.^ On April 23, 2014, Granados filed a Notice of Appeal.^ The

Texas Court of Appeals, Third District, at Austin handed down an order and

memorandum opinion regarding Granados's appeal and the appeal was abated.^

The State filed Proposed Findings of Fact and Conclusions of Law, which the trial

court adopted on May 27, 2014, denying the application for Writ of Habeas

Corpus.




^(CR 5).
^(CR 12).
"^(CR 13-14).
^(CR 15-17).
^(CR 18-27).
^(CR 39).
^(CR 43).
^(CR 49-50).
  (CR 59-63).
                                STATEMENT OF FACTS



         During the period of said community supervision, Granados violated the

terms and conditions of his community supervision by testing positive for

marijuana twice, failing to report to his supervision officer twice, and failing to

complete other terms and conditions.^^ The State filed a Motion to Revoke
Community Supervision and Impose Sentence as a result of the failed terms and

conditions/^ Granados filed a Writ of Habeas Corpus, alleging that his plea was

not entered knowingly, intelligently, and voluntarily as a result of the ineffective

assistance of counsel/^

 I.      To prevail on a post-conviction writ of habeas corpus, the applicant
         bears the burden of proof that the facts entitle him to relief and the trial
         court, as the fact-finder, is the exclusive judge of witness credibility.

      Granados attacks the validity of his prior guilty plea as reflected in the written

judgment claiming ineffective assistance of counsel;'"^ however, he cannot

overcome the presumption that the plea recitals written in the judgment are



  (CR 15-17).
  (CR 15-17).
  (CR18).
''^Granados did not overcome the strong presumption that, "trial counsel's actions fell within [a]
wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689
(1984). He simply did not show sufficient evidence that trial counsel's performance was
defective. He did not prove the two-step Strickland test. The test requires a two-step analysis: 1)
Did the attorney's representation fall below an objective standard of reasonableness under
prevailing professional norms? 2) If so, is there a reasonable probability that, but for counsel's
unprofessional errors, the result would have been different?
                                                3
correct.'^ Written recitals "are binding in the absence of direct proof of their

falsity."''

   In an Article 11.072 habeas proceeding, the trial judge is the sole finder of

fact.'^ Appellate courts afford almost total deference to a trial court's factual

findings when supported by the record, especially when those findings are based

upon credibility and demeanor.'^

   At the writ hearing, the only witness called was Granados. The only evidence

presented supporting his allegation was his own testimony. Trial counsel's

affidavit discredits his allegations.'^ Trial counsel had lengthy and extensive

conversations with Granados regarding the case.'^ The court has the discretion to
believe or disbelieve Granados's testimony; therefore, it was within the court's

discretion to not believe his testimony and base its ruling that trial counsel was not

ineffective on the affidavit submitted by trial counsel.

   Granados also complains that trial counsel did not; conduct a proper and

independent investigation, challenge the evidence in the case, or provide

meaningful plea negotiations based on the lack of evidence supporting Granados's



  State V. Guerrero, 400 S.W.3d 576, 583-84 (Tex. Crim. App. 2013).
  Id.
  Id.
  (CR 32-34).
  (CR 32-34).
guilt. It is true; trial counsel does have an obligation to conduct an investigation, or

to make a reasonable decision that makes the particular investigations
               on

unnecessary.        Here, Granados did not offer trial counsel "any innocent

explanation for where the money or money bag came from, nor did he ever suggest

that there was a legitimate reason for him to have the money or the money bag

with him."      Rather, he explained to trial counsel that additional felony charges

filed against Granados in Travis County had a major influence on his decision to

enter into a plea agreement, even after lengthy conversations and informing him of

his rights.

   Therefore, trial counsel was obligated to abide by Granados's decision to enter

a plea, after reviewing discovery and advising him on the case.                  Moreover, trial

counsel's strategic choices, if made after a less than complete investigation of the

law and facts are reasonable on a               claim of ineffective assistance because


reasonable professional judgments support limitations on the investigation due to


  Strickland. 466 U.S. at 691.
       33); See Hays County Narcotic's Task Force Report ofInvestigation, Appendix A.
Interestingly, Granados claims that a serious mistake in the trial counsel's affidavit was to say
that Granados was in possession of a money bag and that scales were in plain view; however,
both assertions are clearly in the police report, which is not part of the appellate record. The
money is reported as /being in a "money bag" in his pocket and the scales are reported as clearly
in plain view in the police report.
   (CR 33).
^^Tex. R. Civ. P. 1.02 (a)(3) (stating that "a lawyer shall abide by a client's decisions ... [i]n a
criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury
trial, and client will whether the testify.").
                                                 5
Granados's choice to enter into the plea bargain.^"^ The trial court's ruling should

be affirmed.



                                 CONCLUSION & PRAYER



      Wherefore, premises considered, the State respectfully prays that the Court

overrule Appellant's issues, AFFIRM the trial court, and grant the State all relief to

which it is justly entitled.

                                        Respectfully submitted


                                        Angie D. Roberts-Huckaby
                                        Asst. Criminal District Attorney
                                        State Bar No. 24081797
                                        Hays County Government Center
                                        712 South Stagecoach Trail
                                        Angie.roberts@co.hays.tx.us
                                        San Marcos, Texas, 78666
                                        Telephone: 512-393-7600
                                        Facsimile: 512-393-2246
                                        Counsel for the State of Texas




24
     Strickland, 466 U.S. at 690-91.
                        CERTIFICATE OF SERVICE



      I hereby certify that a true and correct copy of the foregoing instrument has

been served on by e-mail to Leonard Martinez at Martinez.leonard@sbcglobal.net

in accordance with Rule 9.2 & 9.5 of the Texas Rules on Appellate Procedure, on

this 30'^ day ofDecember, 2014.




                                             Angie D. Roberts-Huckaby




                     CERTIFICATE OF COMPLIANCE



      I hereby certify, pursuant to Rule 9.4 (i) (2) (B) and rule 9.4 (i) (3) of the

Texas Rules of Appellate Procedure that the instant brief is computer-generated

using Microsoft Word for Mac and said computer program has identified that there

are no more than 1,581 words within the portions of this brief required to be

counted by Rule 9.4 (i) (1) & (2) of the Texas Rules of Appellate Procedure.




                                             Angie D. Roberts-Huckaby


                                         7
Appendix A
       HAYS COUpixY NARCOTICS IaSK FORCE
                             REPORT OF INVESTIGATION
                               BY: Det. Ronnie Verette

File Number: TFll-034-1                                   Case Title:
Date Prepared: 03-03-11                                   113 Crest Hill Causeway
Related Files (Agency):                                   Kyle, TX, 78640

Other Officers: Sgt. Bartsch, Det. Cormier,
Det. Mallow, Det. Taylor




Report Regarding: Search Warrant Executed 02-22-11,113 Crest Hill Causeway, Kyle


SYNOPSIS;

On 02-22-11, members of the Hays County Narcotics Task Force executed a court authorized search and arrest
warrant at 113 Crest Hill Causeway, Kyle, Hays County, TX. The investigation began with an anonymous tip
of bundles of marihuana being unloaded into the residence, and ended with the execution of a search warrant
and the seizure of approximately 15.3 pounds of marihuana. 5 persons in the residence were arrested, charged
with Possession ofMarihuana over 51bs a 3"^*^ degree felony.

DETAILS:

On 02-22-2011 Detective Verette, via Sgt. Bartsch, received an anonymous tip from a concerned citizen who
advised that bundles of marihuana were being unloaded at a house in the green pastures neighborhood. The
concerned citizen, herein referred to as CC wished to remain anonymous for reasons of personal safety. CC
advised that he / she had observed large bags of marihuana being carried into the home.

Detective Verette along with other members of the Hays County Narcotics Task Force traveled to the location
provided by CC. CC had described the suspect location and vehicles in the driveway. Detective Verette notes
that the description of the home and the vehicles described by CC, matched personal observations of Detective
Verette and other members of HCNTF.


Detective Verette along with Jayson Cormier knocked at the front door of the home. Detective Verette was
advised by Detective Jayson Cormier, a member of the HCNTF and San Marcos Police Detective that the odor
of fresh marihuana was detectable before the front door was opened. Bertin Castillo opened the door and
stepped out onto the front porch leaving the door open. Detective Verette observed the front of Castillo's shirt
to be covered in small pieces of marihuana.

Detective Verette identified himself by displaying his Sheriffs Office issued badge and announcing his name
and title as detective. Castillo attempted to re-enter the front door and close the door behind him. Detective
Cormier and Detective Verette stepped forward, blocked the door, and directed Castillo to stop so they could
place him under arrest, but Castillo continued. Both Detective Cormier and Detective Verette entered the living
Detective Signature: K ^ D a t e : O                                                 ~O                  \

Approving Signature: //La fci-              u                        Date:          ^^
                                  ("                                       <" "
       HAYS COUNTY NARCOTICS TASK FORCE
                               REPORT OF INVESTIGATION
                                  BY: Det. Ronnie                Verette
                                           Page 2

room to apprehend Castillo. If not immediately apprehended, Detective Verette believed that Castillo would
escape and destroy evidence.

Detective Verette entered the living room, apprehended Castillo and observed a large black trash bag lying on
the floor. The bag was half open and large bundles of marihuana were visible in plain view. Detective Verette
called out for other persons in the home to come to the living room. Two persons were located on the couch in
the living room and two others were inside of a laundry room on the left side of the home in close proximity to
other marihuana in plain view.

Detective Verette determined that Bertin Castillo was the home owner. Verette asked Castillo for consent to
search the home. Castillo advised "whatever, do what you are going to do". Castillo would not give a straight
yes or no answer. Detective Verette determined consentwas not being given. DetectiveVerette observed the
marihuana in plain view and left the scene to submit an affidavit for search and arrest warrant to Judge Robert
Updegrove CCL-1.

Detective Verette submitted the affidavit to Judge Updegrove, and received a search and arrest warrant at
approximately 1528 hours. Verette telephoned Sgt. Bartsch, who was still on scene, to advise that a warranthad
been issued. Bertin Castillo 08-29-92, Emilio Gomez 11-30-89, Brian Granadoa 08-27-89, Laurentina Garcia
02-21-91, and Esmeralda Vallejo 09-01-92, were arrested and transported to the Hays County Jail, charged with
possession of marihuana over 51bs.

The marihuana that was in plain view was located in a large black trash bag lying half open on the floor
between the living room and dining room. This bag had a total of 3Lbs of marihuana in one pound bags. A
second large trash bag was lying unopened on the floor next to it, and when searched his bag contained two
large bundles of compressed marihuana wrapped in plastic. Each bundle weighed 5Lbs for a total of lOLbs in
the second bag. Also in plain view were two digital scales with marihuana residue on top. They were located
on a small table in the dining room. One ounce of marihuana was in plain view in the laundry room where
Granados and Gomez were hiding when Detective Verette called them out to the living room.

After the search warrant was signed, an additional 2.27 pounds of marihuana were seized from the cabinets in
the dining room. A third digital scale was also located in the cabinets of the dining room. $800.00 of U.S.
Currencv was seized from the rear pocket of Brian Granados. He hadthe money inside of a moneybag. The
rtl^oej^as seized for forfeitraB" as drug proceeHs!
Photographs were taken of the residence and the evidence as it was located, by Detective Laray Taylor.
Detective Verette gathered the evidence and transported it back to the San Marcos Police Dept. for processing.
It was placed into a safe in the narcotics offices until being weighed and logged into evidence.

On 03-02-11, Detective Verette submitted an affidavit for seizure to David Mendoza of the Hays County
District Attorney's Office. David Mendoza took possession of the $800.00 U. S. Currency. A copy of the
affidavit is submitted with this report.

SUSPECT(S^:

Castillo, Bertin Yoshio
W/M 08-29-92
        HAYS COUNTY NARCOTICS TASK FORCE
                               REPORT OF INVESTIGATION
                                 BY: Det. Ronnie Verette
                                                 Page 3

XXX-XX-XXXX
508-135
Blk-Bro


Gomez, Emilo
W/M 11-30-89
TX-07182223
510-200
Blk-Bro


Granados, Brian
Granadoa, Brian
W/M 08-27-89
TX-62684691
XXX-XX-XXXX
510-180
Blk-Bro


Garcia, Laurentina
W/F 01-21-91
TX-28724453
503-120
Blk-Bro


Vallejo, Esmeralda Yaneli
W/F 09-01-92
501-115
Blk-Bro


DESCIPTION AND CUSTODY OF EVIDENCE;

Item#   Description of Item                                       Location Item Found
#1      black plastic bag w 2 bundles of marihuana lOLbs   living room / dining room
#2      black plastic bag w 3 bags of marihuana 3Lbs       dining room
#3      2 digital scales w marihuana residue               dining room on small table ^
#4      .4grams marihuana in sandwich bag                  dining room on top of digital scale
#5      3 bags of marihuana 243grams                       dining room inside top cabinet
#6      1 bag of marihuana 333 grams                       dining room inside top cabinet
#7        1 bag marihuana 110 grams                        dining room inside bottom cabinet
#8        1 bag marihuana 335 grams                        dining room bottom cabinet in plastic
                                                           tub and zip loc bag
#9        $800.00 U.S. Currency                            money bag in rear pocket Brian Granados
#10       digital scale                                    dining room table bottom cabinet
#11       marihuana 28 grams                               laundry room on top shelf
#12       aff link Emma Ramos                              dining room bar
#13       aff link Bertin Castillo                         BR#1 floor
      HAYS COUNTY NARCOTICS i ASK FORCE
                          REPORT OF INVESTIGATION
                            BY: Det. Ronnie Verette
                                     Page 4

#14   aff link Bertin Yoshio Castillo Nakamura   BR#1 closet shelf
