                                                                                                            ACCEPTED
                                                                                                        13-14-00501-cr
        FILED                                                                            THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                                   CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI                                                                           3/23/2015 10:55:59 AM
                                                                                                      DORIAN RAMIREZ
                                                                                                                CLERK
          3/23/15
DORIAN E. RAMIREZ, CLERK                     No. 13-14-00501-CR
BY DTello
                                                   In the                 RECEIVED IN
                                         COURT OF APPEALS           13th COURT OF APPEALS
                                                                 CORPUS CHRISTI/EDINBURG, TEXAS
                                                  For the           3/23/2015 10:55:59 AM
                                  THIRTEENTH JUDICIAL DISTRICT         DORIAN E. RAMIREZ
                                      Corpus Christi – Edinburg, Texas       Clerk
                                ______________________________________

                               On Appeal from the 357th Judicial District Court of
                                           Cameron County, Texas
                                      Cause Number 2014-DHC-2879
                                ______________________________________

                                     Ex Parte Samuel Osvaldo Garcia
                                                Appellant
                                                   v.
                                        THE STATE OF TEXAS,
                                                Appellee
                                ______________________________________

                                            STATE’S BRIEF
                                ______________________________________

                 Counsel for the State of Texas            Luis V. Saenz
                                                           County and District Attorney
                                                           Cameron County, Texas

                                                           Ismael H. Hinojosa
                                                           Assistant District Attorney
                                                           Cameron County, Texas
                                                           State Bar No. 24041102

                                                           964 E. Harrison St.
                                                           Brownsville, Texas 78520
                                                           Tel: (956) 544-0849
                                                           Fax: (956) 544-0869
                                                           ismael.hinojosa@co.cameron.tx.us
                     IDENTIFICATION OF THE PARTIES

       Pursuant to Texas Rule of Appellate Procedure 38.1(a) and 38.2(a) (1) (A),
the State hereby supplements the identification of the parties.

Appellant:

Samuel Osvaldo Garcia

Counsel for Appellant:

Rafael de la Garza (at trial)
4943 South Jackson Road
Edinburg, Texas 78539

Rafael de la Garza (on appeal)
Ricardo Ramirez
4943 South Jackson Road
Edinburg, Texas 78539

Counsel for Appellee, The State of Texas

Luis V. Saenz
County and District Attorney
Cameron County, Texas

Ismael H. Hinojosa
Assistant District Attorneys

964 E. Harrison
Brownsville, Texas 78520

Trial Court Judge:

The Honorable Oscar X. Garcia




                                        ii
                        TABLE OF CONTENTS

IDENTIFICATION OF PARTIES.………………………………………………..ii

INDEX OF AUTHORITIES…………………………..…………………………..iv

SUMMARY OF THE ARGUMENT…………………..…………………………..1

STATEMENT OF THE FACTS……………………………...……………………2

ARGUMENT & AUTHORITIES…………………………..……………………...4

   Padilla v. Kentucky, 559 U.S. 356 (2010) does not apply retroactively
   to this case; there is no credible evidence that appellant’s counsel
   performed deficiently; and, even if applicant’s counsel had performed
   deficiently under pre-Padilla law, there is no credible evidence that
   appellant was prejudiced by the alleged deficiency.

PRAYER FOR RELIEF…………………………………………………………..15




                                    iii
                      INDEX OF AUTHORITIES

CASES

Chaidez v. U.S., 130 S. Ct. 1103 (2013)…………………………………2,4,5,6,7,8

Ex Parte De Los Reyes, 392……………………………………………………2,4,7

Hill v. Lockhart, 474 U.S. 52, 59 (1985)……………………………………….....12

Padilla v. Kentucky, 559 U.S. 356 (2010)…………………………..2,4,5,6,7,8,9,11

Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005)…………………….9

I.N.S. v. St. Cyr, 533 U.S. 289, 297 (2001)………………………………………..10

Strickland v. Washington, 466 U.S. 668, 687 (1984)…………………5,6,7,8,9,12

STATUTES AND RULES

TEX. CODE CRIM. PROC. ART. 42.12 §4(e)………………………………..…13

TEX.PENAL CODE 13.32…….………………………………………...................3

TEX.PENAL CODE 32.21……………………………………………………..…..2

TEX.RULE EVID. 609…………………………………………………..……….13

8 U.S.C. §1101(a)(43)(B)…………………………………………………………..9

8 U.S.C. §1101(a)(43)(R)………………………………………………...…….2,9

8 U.S.C. §1227(a)(2)(i)……………………………………………………………10

8 U.S.C. §1227(a)(2)(iii)……………………………………………………….…10




                                  iv
8 U.S.C. §1229b……………………………………………………………………9




                    v
                              No. 13-14-00501-CR

                                    In the
                          COURT OF APPEALS
                                   For the
                   THIRTEENTH JUDICIAL DISTRICT
                       Corpus Christi – Edinburg, Texas
                 ______________________________________

                On Appeal from the 357th Judicial District Court of
                            Cameron County, Texas
                       Cause Number 2014-DHC-2879
                 ______________________________________

                       Ex Parte Samuel Osvaldo Garcia
                                  Appellant
                                     v.
                          THE STATE OF TEXAS,
                                  Appellee

                 ______________________________________

                                STATE’S BRIEF

                 ______________________________________

To the Honorable Thirteenth Court of Appeals:

                      SUMMARY OF THE ARGUMENT

      Appellant entered a plea of guilty and was convicted of the offense of

possession with intent to deliver a controlled substance in an amount of at least 4

grams but less than 200 grams; a first degree felony, on January 24, 2003.

Appellant’s conviction became final on February 23, 2003. The U.S. Supreme


                                        1
Court’s ruling in Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply

retroactively. See Chaidez v. U.S., 130 S. Ct. 1103 (2013). And, as a matter of

state habeas law, the Texas Court of Criminal Appeals has held that the Padilla

ruling would not apply retroactively in Texas. See Ex Parte De Los Reyes, 392

S.W.3d 675 (2013). As such, defendant cannot and should not be granted any

relief based on the grounds that his trial counsel did not fully inform him of the

immigration consequences of his plea.

      Additionally, although appellant argues that he should be granted relief

based on pre-Padilla ineffective assistance of counsel analysis, appellant has failed

to show that either his trial counsel’s performance was deficient or that appellant

was prejudiced by any alleged deficiency.

                        STATEMENT OF THE FACTS

      In 1992, appellant was charged with the offense of Forgery. See Brief of

Appellant – Appendix B – Affidavit of Samuel Oswaldo Garcia. That same year,

appellant entered a plea of guilty to and was placed on probation for Forgery. Id.

Forgery is classified as a felony offense under the laws of the State of Texas. Tex.

Penal Code §32.21. Forgery is among the laundry list of offenses classified as

aggravated felonies that would make a lawful permanent resident immediately

deportable. 8 U.S.C. § 1101(a)(43)(R).




                                         2
      On August 23, 2002, agents with the Cameron County Drug Enforcement

Task Force executed a search warrant at 2702 Calle Condessa in Harlingen,

Cameron County, Texas (I C.R. at 31). While executing said search warrant,

agents located and detained appellant on the premises and found 20 baggies of

cocaine weighing 12.9 grams on appellant’s person (I C.R. at 33). Appellant was

thereafter indicted in cause number 02-CR-1042-E for the offense of Possession

with Intent to Distribute a Controlled Substance in an amount of at least four (4)

grams but less than two hundred (200) grams. (I C.R. at 9). This offense is a first

degree felony (I C.R. at 17) which carries a punishment range of imprisonment at

the Texas Department of Criminal Justice for life or for any terms of not more than

99 years or less than 5 years. Tex. Penal Code §13.32.

      On December 5, 2002, appellant entered a plea of guilty to the offense

charged in cause number 02-CR1042-E in exchange for the State’s

recommendation that appellant be sentenced to a term of imprisonment of ten (10)

years and that this sentence be suspended and probated for a period of ten (10)

years and that all other terms and conditions of probation be determined by the

Court (I C.R. at 27). On January 24, 2003, the Court followed the plea agreement

and sentenced the appellant to a term of imprisonment of ten (10) years and

suspended and probated that sentence for a period of ten (10) years (I C.R. at 17).




                                          3
                       ARGUMENT & AUTHORITIES

State’s Response to Appellant’s First Issue:

      Appellant argues that he can proceed with a Padilla-style claim despite

the U.S. Supreme Court’s ruling in Chaidez and the Texas Court of Criminal

Appeals ruling in Ex Parte De Los Reyes because of dicta by Justice Kagan’s

opinion that states that affirmative misrepresentation claims co-existed with

other ineffective assistance of counsel claims in the pre-Padilla legal

landscape. Neither the U.S. Supreme Court nor the Texas Court of Criminal

Appeals has ever held that affirmative misrepresentation of immigration

consequences claims should be treated any differently from other Padilla

claims. As such, appellant cannot and should not be granted relief based on

affirmative misrepresentation of the immigration consequences of a plea.

      Jose Padilla was the appellant in Padilla v. Kentucky, 599 U.S. 356 (2010).

Padilla was a legal permanent resident of the United States for forty (40) years and

had served in the U.S. Armed Forces during the Vietnam War. Id. at 359. He

faced deportation after pleading guilty to transportation of marihuana in Kentucky

after being told by his counsel that he “did not have to worry about immigration

status since he had been in the country to so long.” Id. In Padilla, the Supreme

Court held that advice regarding the immigration consequences of a plea in a

criminal case fell within the purview of the Sixth (6th) Amendment’s right to


                                         4
counsel and, thus, also is subject to a Strickland ineffective assistance claim. Id at

366. And the Court also held that to render effective assistance, defense counsel

must inform the client whether a plea agreement carries the risk of deportation or

exclusion from the U.S. Id. at 374. In Padilla, the Court was asked to limit the

extent of its holding to only those based on affirmative misrepresentations of

immigration consequences, however, the Court specifically declined to do so. Id.

at 369-374.

      In Chaidez v. U.S., the Supreme Court held that Padilla announced a new

rule regarding the Sixth (6th) Amendment’s effective assistance of counsel analysis.

113 S. Ct. 1103, 1113 (2013). The Court held that Padilla did away with the

traditional distinction between collateral and direct consequences of plea

agreements with regards to immigration consequences and declined to extend the

benefit of the Padilla ruling to “defendants whose convictions became final prior

to Padilla…” Id.

      Appellant was a legal permanent resident of the United States for sixteen

(16) years and had been dishonorably discharged from the U.S. Armed Services.

See Brief of Appellant – Appendix B – Affidavit of Samuel Oswaldo Garcia.

Appellant was subject to deportation proceedings after entering a plea of guilty to

and being convicted of the offense of Possession with Intent to Distribute a

Controlled Substance in an amount of at least four (4) grams but less than two


                                          5
hundred (200) grams in January of 2003. Id. Appellant’s conviction was final for

approximately seven years before the Supreme Court’s decision in Padilla. In the

trial court and in his brief, appellant states that Chaidez merely stands for the

proposition that the Padilla rule applies to everything but affirmative

misrepresentation cases (I. C.R. at 44).

      Appellant’s whole argument rests on four sentences of dicta from Justice

Kagan’s ten page majority opinion:

      True enough, three federal circuits (and a handful of state courts) held
      before Padilla that misstatements about deportation could support an
      ineffective assistance claim. But those decisions reasoned only that a
      lawyer may not affirmatively misrepresent his expertise or otherwise
      actively mislead his client on any important matter, however related to
      a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d
      1005, 1015–1017 (C.A.9 2005). They co-existed happily with
      precedent, from the same jurisdictions (and almost all others), holding
      that deportation is not “so unique as to warrant an exception to the
      general rule that a defendant need not be advised of the [collateral]
      consequences of a guilty plea.” United States v. Campbell, 778 F.2d
      764, 769 (C.A.11 1985). So at most, Chaidez has shown that a
      minority of courts recognized a separate rule for material
      misrepresentations, regardless whether they concerned deportation or
      another collateral matter.

Those four (4) sentences, however, mischaracterize the substance of the opinion

and completely miss the point of its holding. Specifically, Chaidez held that the

Court in Padilla created a new rule for the Sixth Amendment Strickland effective

(or ineffective) assistance of counsel analysis.




                                           6
      Before Padilla, the general consensus was that immigration consequences,

and specifically deportation, fell outside of the ambit Sixth Amendment’s right to

counsel because it was considered a collateral consequence of a guilty plea.

Chaidez v. U.S., 113 S. Ct. 1103, 1109 (2013). As such, then, before the Court in

Padilla could determine whether defense counsel was ineffective under Strickland,

the court had to first consider whether Strickland applied at all. Id. at 1110. In

other words, “Padilla had to develop new law, establishing that the Sixth

Amendment applied at all, before it could assess the performance of Padilla’s

lawyer under Strickland.” Id. at 1111.

      Thus, the new rule established by Padilla was not only that defense counsel

has a duty to inform a client about the immigration consequences of a guilty plea,

but also that immigration consequences are no longer to be considered collateral

consequences and from thenceforth subject to a Strickland analysis. This is the

new rule that the Chaidez Court held does not apply to pre-Padilla cases like

appellant’s. As a matter of State habeas law, the Texas Court of Criminal Appeals

could have chosen to make the Padilla rule retroactive in Texas, but has declined

to do so. Ex Parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App.2013).

       Appellant’s first issue rests solely on the argument that the “new rule”

created by Padilla was that defense counsel must inform their clients regarding the

immigration consequences of a guilty plea. In order to accept, adopt or apply


                                         7
appellant’s argument we would have to ignore the extensive discussion of

collateral versus direct consequences of guilty pleas in both Padilla and Chaidez

and the actual rulings in those cases. Appellants claim for relief fails on this

ground.

State’s Response to Appellant’s Second Issue:

      Appellant claims that the Court abused its discretion by denying his

habeas petition because he had proven a Stirckland claim. Assuming that

affirmative misrepresentation claims should be treated differently from other

Padilla-type claims, appellant still is not entitled to relief because he has failed

to put forth any credible evidence that either his trial counsel’s performance

was deficient or that appellant was prejudiced by any alleged deficiency.

      Assuming, arguendo, that Chaidez does leave open the possibility for relief

based on affirmative misrepresentations regarding immigration consequences,

appellant’s claims still fails because he has failed to put forth any credible evidence

to show that his counsel’s performance fell below an objective standard of

reasonableness and that he was prejudiced by any alleged deficiency.

Appellant’s Trial Counsel’s Performance was not Deficient

      In order to prove that appellant’s counsel at trial rendered ineffective

assistance, appellant must prove the two-prongs of the Strickland test by a

preponderance of the evidence. Strickland v. Washington, 466 U.S. 668, 687


                                          8
(1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005).              Under

Strickland, appellant must first show that “counsel’s representation fell below an

objective standard of reasonableness.”        For this particular case, the objective

standard of reasonableness can be found in the holding of Padilla itself; “When the

law is not succinct and straightforward… a criminal defense attorney need do no

more than advise a noncitizen client that pending criminal charges may carry a risk

of adverse immigration consequences.       But when the deportation consequence is

truly clear, as it was in this case, the duty to give correct advice is equally clear.”

Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Appellant’s appeal counsel may

attempt to argue that the deportation consequence in this case was “truly clear,”

however, a review of the record shows this was not the case.

      In his brief, appellant states the grounds necessary to obtain relief from

deportation proceedings under 8 U.S.C. §1229b; among them is the requirement

that appellant not be convicted of any “aggravated felony.” Without a doubt, the

offense for which appellant was convicted in January of 2003 was an “aggravated

felony” within the meaning of 8 U.S.C. §1101(a)(43)(b). However, even before

entering a plea of guilty in cause number 02-CR1042-E, appellant may have

already been subject to deportation proceeds based on his “aggravated felony”

conviction for Forgery in 1992. See Brief of Appellant – Appendix B – Affidavit of

Samuel Oswaldo Garcia. Pursuant to 8 U.S.C. §1101(a)(43)(R) Forgery is also


                                          9
considered an aggravated felony. Appellant’s counsel at this point must then know

that not only is appellant facing a new “aggravated felony” charge, but also has a

previous aggravated felony conviction for which he is considered deportable

pursuant to 8 U.S.C. §1227(a)(2)(i) and 8 U.S.C. §1227(a)(2)(iii).

       In 1996, the U.S. Congress passed the Antiterrorism and Effective Death

Penalty Act and the Illegal Immigration Reform and Immigration Responsibility

Act. Both of these acts withdrew the U.S. Attorney General’s discretion to waive

deportation in certain circumstances. I.N.S. v. St. Cyr, 533 U.S. 289, 297 (2001).

Before the passage of these two acts, the Attorney General could waive deportation

in cases involving aggravated felonies under § 212(c) of the Immigration and

Naturalization Act. Id. at 295. After the acts, the Attorney General had no such

power. In St. Cyr, the Supreme Court ruled that the acts did not apply retroactively

and, as such, the Attorney General still had the power to cancel deportation

proceedings with regards to cases involving aggravated felonies that occurred

before the enactment of these two acts. Id. at 326. St. Cyr was decided on June

25, 2001.

       Appellant’s trial counsel was faced with the following scenario: First, a

client who has been sitting in jail for approximately 2 months on a charge 1, for



1
 Defendant was arrested on August 23, 2002 and the record is not clear on whether the defendant
was able to make bond or whether Immigration and Customs Enforcement agents placed an
                                              10
which if convicted, would be considered a deportable offense and who has a

conviction in 1992 for another deportable offense. Next, in 1996, Congress took

away the Attorney General’s discretion to cancel deportation proceedings in cases

such as that of appellant, but the Supreme Court gave that discretion back five (5)

years later and approximately sixteen (16) months before appellant’s arraignment.

Also, even if you were able to obtain an acquittal on appellant’s behalf (which

could result in a delay of another 6 months to a year) appellant would still have to

navigate the waters of 212(c) of the Immigration and Naturalization Act and how

the Attorney General might implement that program after a five (5) year hiatus, to

determine whether appellant might get deported anyway.

       Facing a situation that was not “succinct and straightforward”, appellant’s

trial counsel did what Padilla requires and informed appellant that his plea “may

result in deportation.” See Brief of Appellant – Appendix C – Affidavit of Attorney

Daniel Sanchez. Appellant constantly refers to his own affidavit to support the

proposition that trial counsel affirmatively misrepresented the immigration

consequences of his plea, however, there is little mention of trial counsel’s

affidavit which contradicts appellant’s version of events. Appellant’s trial counsel

simply states that he informed appellant that his plea may result in his deportation,

which is all that is required by Padilla. See Brief of Appellant – Appendix C –

immigration hold on defendant (I C.R. at 32). However, notice of arraignment was sent to
appellant at the Cameron County jail on September 16, 2002 (I C.R. at 11).
                                              11
Affidavit of Attorney Daniel Sanchez. Appellant’s habeas application was denied

without a hearing (I C.R. at 60). Therefore, we must assume that the trial court

found trial counsel’s affidavit more credible than appellant’s own affidavit.

Appellant was not Prejudiced by any alleged Deficiency

      Even if appellant could prove, which he cannot, that his trial counsel’s

performance fell below an object standard of reasonableness, he still must prove

that he was prejudiced by the alleged deficiency. Prejudice is the second prong of

the Strickland test and states that appellant must show that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984).           In the realm of plea

negotiations, the second Strickland prong was more clearly defined in Hill as

follows; “…in order to satisfy the ‘prejudice’ requirement, the defendant must

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

not have pleaded guilty and would have insisted on going to trial.”             Hill v.

Lockhart, 474 U.S. 52, 59 (1985).

      In his affidavit, appellant claims that his immigration status in this country

was his primary concern during plea negotiations.         See Brief of Appellant –

Appendix B – Affidavit of Samuel Oswaldo Garcia. Appellant also claims that had

he known that by entering a plea of guilty he would become deportable and in fact

would be deported, he never would have entered a plea of guilty in cause number


                                         12
02-CR-1042-E.       See Brief of Appellant – Appendix B – Affidavit of Samuel

Oswaldo Garcia.        The Trial Court considered that same affidavit and denied

appellant’s request for relief (I C.R. at 60). As such, the trial court did not find

appellant’s affidavit to be credible.

       As had been stated earlier, the 20 baggies of cocaine for which appellant

were charged in 02-CR-1042-E were found on appellant’s person (I. C.R. at 32).

In order to stand a chance at an acquittal, appellant would have to have either the

co-defendant admit that all the cocaine belonged to the co-defendant and that the

co-defendant forced appellant to hold the 20 baggies of cocaine for him or,

appellant would have had to take the stand and told the same story to the jury. In

taking the stand, appellant would have had to admit to the prior forgery conviction

both as a prior felony conviction and a crime of moral turpitude. Tex. Rule Evid.

609. Appellant would have to admit to the jury that he is a felon, a thief and a liar,

but still ask that they believe his outlandish story. If the jury did not believe his

story and did convict him of the offense, he would have to elect to have the trial

court assess his punishment to have any chance at a probated sentence 2. Having a

prior felony conviction on his record and having forced the State to trial, it seems

unlikely that the State would have agreed to recommend probation after a guilty

verdict. Appellant would have been left to the mercy of the trial court and if the

2
 Appellant’s forgery conviction would have made him ineligible for probation from a jury
pursuant to Tex. Code. Crim. Proc. 42.12 §4(e).
                                              13
trial court elected not to grant probation, defendant would face a prison sentence

between five to ninety nine years or life in prison and would still be subject to

deportation after having been found guilty of an aggravated felony.

      However, in this case, the State was offering a recommendation of probation

in exchange for the appellant’s plea of guilty (I. C.R. at 27). Instead of risking a

trial and a prison sentence from the judge, appellant could accept the offer, enter a

plea of guilty and, if the trial court did not agree to follow the State’s

recommendation for probation, appellant could still withdraw his plea and go to

trial. Appellant claims that it was the conviction in this cause that made him

deportable, but as has been previously discussed, his forgery conviction is also

considered an aggravated felony for immigration purposes and would subject

appellant to deportation.

      Whether appellant would be deported or not is murky at best and there could

be no guarantees that appellant would not be deported even if acquitted in cause

number 02-CR-1042-E. What was a very clear possibility at the time, however,

was that the appellant would serve prison time for the offense. A recommendation

of probation from the State gave appellant the opportunity to avoid prison and “test

the waters” with the trial court while still being able to go to trial if everything

went wrong. Under those circumstances, it is just as likely that appellant pleaded

guilty to avoid prison time as in response to the alleged affirmative


                                         14
misrepresentation from his trial counsel. Thus, appellant cannot prove that his trial

counsel’s performance prejudiced him in any way.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, The State prays the Court

of Appeals will overrule Appellant’s two issues on appeal, deny any and all other

relief requested, and affirm the disposition herein.


                                               Respectively Submitted,
                                               Luis V. Saenz
                                               County and District Attorney



                                               /s/ Ismael H. Hinojosa___
                                               Ismael H. Hinojosa
                                               Assistant District Attorney
                                               Cameron County, Texas
                                               State Bar No. 24041102

                                               964 E. Harrison St.
                                               Brownsville, Texas 78520
                                               Tel: (956) 544-0849
                                               Fax: (956) 544-0869
                                               ismael.hinojosa@co.cameron.tx.us




                                          15
                              CERTIFICATE OF SERVICE

I certify that a copy of the foregoing State’s Appellate Brief was served in

compliance with Tex. R. App. P. 9.5 on this the 23th day of March 2015, to the

following attorney of record for Appellant, Samuel Oswaldo Garcia, by email:

Rafael de la Garza (on appeal)
Ricardo Ramirez
4943 South Jackson Road
Edinburg, Texas 78539
(P) 956-533-1426
(F) 956-284-0518
Rafael@dlgrlaw.com


                                                /s/ Ismael H. Hinojosa__________
                                                Ismael H. Hinojosa




                       CERTIFICATE OF WORD COUNT

        I certify that this document contains 3,842 words (counting all parts of the

document). The body text is in 14 point font, and the footnote text is in 12 point

font.



                                                /s/ Ismael H. Hinojosa__________
                                                Ismael H. Hinojosa




                                           16
