                                                                                   PD-1277-14
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 2/12/2015 5:53:18 PM
                                                                  Accepted 2/13/2015 8:25:01 AM
February 13, 2015                                                                   ABEL ACOSTA
                                NO. PD-1277-14                                              CLERK

                                IN THE
                      COURT OF CRIMINAL APPEALS
                              OF TEXAS


                      EX PARTE: JUAN CARLOS REYES


                 THE STATE’S BRIEF ON APPELLEE’S
               PETITION FOR DISCRETIONARY REVIEW


  FROM THE COURT OF APPEALS, EIGHTH DISTRICT OF TEXAS
              CAUSE NUMBER 08-12-00261-CR,
      TRIAL COURT CAUSE NUMBER 20050C17647-CC7-1,
 COUNTY COURT AT LAW NO. SEVEN OF EL PASO COUNTY, TEXAS


                                     JAIME ESPARZA
                                     DISTRICT ATTORNEY
                                     34th JUDICIAL DISTRICT

                                     LILY STROUD
                                     ASST. DISTRICT ATTORNEY
                                     DISTRICT ATTORNEY’S OFFICE
                                     203 EL PASO COUNTY COURTHOUSE
                                     500 E. SAN ANTONIO
                                     EL PASO, TEXAS 79901
                                     (915) 546-2059 ext. 3769
                                     FAX (915) 533-5520
                                     EMAIL lstroud@epcounty.com
                                     SBN 24046929

                                     ATTORNEYS FOR THE STATE

                    The State does not request oral argument.
                           TABLE OF CONTENTS

INDEX OF AUTHORITIES                                                          iv-v

STATEMENT OF THE CASE                                                       vi-viii

STATEMENT OF FACTS                                                           1-10

SUMMARY OF THE STATE’S ARGUMENTS                                            11-12

STATE’S REPLY TO APPELLEE’S ISSUES PRESENTED:                               13-36

       REPLY TO ISSUES ONE AND THREE: The sole basis for the trial
court’s grant of writ relief was its conclusion that Reyes’s trial counsel
rendered ineffective assistance of counsel by failing to properly advise him of
the immigration consequences of his guilty plea as required by Padilla v.
Kentucky. Additionally, the trial court’s statements and actions indicate that
it rejected and impliedly denied Reyes’s other non-Padilla writ grounds.
Consequently, the Eighth Court did not err in considering Reyes’s other
grounds to have been rejected or impliedly denied by the trial court.
Moreover, none of the trial court’s findings and conclusions showed that the
trial court intended to grant relief on Reyes’s other non-Padilla writ grounds.
And findings and conclusions on those other writ grounds was not essential or
potentially dispositive to the issue the State appealed to the Eighth Court.
Therefore, the Eighth Court did not err to any extent that it did not remand
the case for findings and conclusions on Reyes’s other writ grounds.         13-33

       REPLY TO ISSUE TWO: The Eighth Court did not err in determining
that the sole basis for the grant of any writ relief by the trial court was
Reyes’s Padilla claim and that the trial court impliedly denied the rest of
Reyes’s writ grounds. And in so determining, the Eighth Court did not
deprive Reyes of the opportunity to obtain appellate review of the trial
court’s decision not to grant relief on his other non-Padilla writ grounds, as
article 11.072, section 8 of the Code of Criminal Procedure allows a writ
applicant to appeal a partial denial of his writ application.               34-36

PRAYER                                                                          37

                                        ii
SIGNATURES                        37-38

CERTIFICATE OF COMPLIANCE           37

CERTIFICATE OF SERVICE              38




                            iii
                                      INDEX OF AUTHORITIES

FEDERAL CASES

Chaidez v. United States, ---U.S.---, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013). . . . 19

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).. . . . . 23

Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). . . . 23

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

STATE CASES

Cannon v. State, 252 S.W.3d 342 (Tex.Crim.App. 2008).. . . . . . . . . . . . . . . . . . . 25

Ex parte Chavez, 371 S.W.3d 200 (Tex.Crim.App. 2012). . . . . . . . . . . . . . . . 17, 26

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

Ex parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013). . . . . . . . . . . . . . 19

State v. Elias, 339 S.W.3d 667 (Tex.Crim.App. 2011). . . . . . . . . . . . . . . . . . . 28-29

Gottson v. State, 940 S.W.2d 181 (Tex.App.–San Antonio 1996, pet. ref’d). . . . . 26

Johnson v. State, 414 S.W.3d 184 (Tex.Crim.App. 2013). . . . . . . . . . . . . . . . . . . 32

State v. Kelley, 20 S.W.3d 147 (Tex.App.–Texarkana 2000,
no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16, 20, 35

State v. Mazuca, 375 S.W.3d 294 (Tex.Crim.App. 2012).. . . . . . . . . . . . . . . . 29, 32

McDonald v. State, No. 08-08-00103-CR, 2010 WL 3910424
(Tex.App.–El Paso, Sept. 30, 2011, pet. ref’d)
(not designated for publication).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26

                                                          iv
State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App. 2012).. . . . . . . . . . . . . . . . . . 29

Miller v. State, 83 S.W.3d 308 (Tex.App.–Austin 2002, pet. ref’d). . . . 15-16, 20, 35

Montanez v. State, 195 S.W.3d 101 (Tex.Crim.App. 2006). . . . . . . . . . 15-16, 20, 35

Murphy v. State, 112 S.W.3d 592 (Tex.Crim.App. 2003).. . . . . . . . . . . . . . . . . . . 25

Rey v. State, 897 S.W.2d 333 (Tex.Crim.App. 1995). . . . . . . . . . . . . . . 15-16, 20, 35

Ex parte Reyes, No. 08-12-00261-CR, 2014 WL 2993789 (Tex.App.–El Paso,
June 30, 2014, pet. granted) (not designated for publication).. . . . . . . . . . 16, 22, 35

Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App. 2003).. . . . . . . . . . . . . . . . . . 25

STATUTES

TEX. CRIM. PROC. CODE art. 11.072 § 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 35

RULES

TEX. R. APP . P. 44.4(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28




                                                         v
                              STATEMENT OF THE CASE

       On March 30, 2006, Juan Carlos Reyes, appellee, pled guilty to the

misdemeanor offense of family-violence assault, and the trial court assessed

punishment at 365 days’ confinement, probated for 12 months, and a fine of

$1,000.00, of which $500.00 was probated. See Ex parte Reyes, No. 08-12-00261-

CR, 2014 WL 2993789 at *1 (Tex.App.–El Paso, June 30, 2014, pet. granted) (not

designated for publication); see also (CR at 15-18).1 On March 2, 2012, Reyes

filed an application for writ of habeas corpus under article 11.072 of the Code of

Criminal Procedure. (CR at 24-50). After hearing evidence and argument at two

writ hearings, (RR2 at 5-91); (RR3 at 12-35), the trial court, on August 6, 2012,




       1
          Throughout this brief, references to the record will be made as follows: references to the
clerk’s record will be made as “CR” and page number, references to the supplemental clerk’s
record will be made as “SCR” 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.
        With respect to the clerk’s record, the State has learned that the El Paso County Clerk’s
Office, for some unknown reason, prepared and certified two different versions of the clerk’s
record that have been paginated differently. When the State prepared its original brief on direct
appeal, the County Clerk’s Office provided the State with only a version of the clerk’s record that
was prepared and certified by the El Paso County Clerk on August 15, 2012. However, when the
State requested the clerk’s record in preparing its reply brief to Reyes’s PDR brief, the County
Clerk’s Office presented the State with both the August 15, 2012, version of the clerk’s record
and another version that was prepared and certified by the El Paso County Clerk on October 15,
2012. The Clerk’s Office has advised the undersigned that the October 15, 2012, version is the
one that was filed with the Eighth Court. However, the case history with the Eighth Court
reflects that only one clerk’s record was filed on August 15, 2012. Therefore, the State will rely
on the same version of the clerk’s record (August 15, 2012) it relied on for the direct appeal.

                                                vi
signed a written order granting Reyes writ relief, and as part of that written order,

issued findings of fact and conclusions of law. (CR at 130-32).2

       In its first issue on direct appeal before the Eighth Court, the State argued

that the trial court abused its discretion in granting writ relief based on a

retroactive application of Padilla v. Kentucky.3 See Ex parte Reyes, 2014 WL

2993789 at *2. In its second and third issues, the State argued that, absent

findings by the trial court that Reyes presented sufficient credible evidence

satisfying both the deficient-performance and prejudice prongs of the Strickland v.

Washington4 test for ineffective assistance of counsel and demonstrating that a

decision to reject the plea bargain would have been rational under the

circumstances, the trial court abused its discretion in concluding that Reyes met

his burden of proving that trial counsel was ineffective for failing to properly

advise him of the immigration consequences of his guilty plea. On April 29, 2013,

in response to an order by the Eighth Court granting the State’s motion to abate for

supplemental findings of fact and conclusions of law, the trial court issued said

supplemental findings and conclusions. (SCR at 8-9).

       2
        On August 7, 2012, the trial court entered another written order granting Reyes relief
and vacating his conviction. (CR at 129).
       3
           See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
       4
           See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

                                                vii
      Ultimately, the Eighth Court sustained the State’s first issue, did not reach

the State’s second and third issues, reversed the trial court’s order granting writ

relief, and reinstated Reyes’s conviction. See Ex parte Reyes, 2014 WL 2993789

at *5. Specifically, the Eighth Court held that the trial court clearly granted writ

relief only on Reyes’s Padilla claim and thus abused its discretion in granting writ

relief based on a retroactive application of Padilla. See id. at *4-5.

      This Court granted Reyes’s PDR on three grounds: (1) “By ruling that

Reyes’ conviction should be reinstated because the supplemental findings of fact

and conclusions of law the trial court provided failed to identify or rely on any

theory of law to support Reyes’ non-Padilla claims, the court of appeals has

decided an important question of state law which conflicts with an applicable

decision of this Court,” (2) “By 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 has decided this case in a

way which conflicts with applicable decisions by the United States Supreme

Court,” and (3) “By giving binding effect to the trial court’s failure to supplement

its non-Padilla findings of fact and conclusions of law, the court of appeals has so

far departed from the accepted and usual course of judicial proceedings as to call

for an exercise of this Court’s power of supervision.”

                                          viii
                            STATEMENT OF FACTS

      The El Paso Police Department supplemental offense report, which was

attached to the State’s writ answer, indicated that on September 6, 2005, Officers

A. Gonzalez and M. Cervantes were dispatched to the residence of Hector Garcia,

Reyes’s cousin, regarding a domestic disturbance between Reyes and Hilda

Maldonado, Reyes’s common-law wife at the time and the mother of their three

children. (CR at 96-97). According to the offense report, Maldonado related to

the police that she went to Garcia’s residence where her children had been visiting

Reyes, that their discussion regarding their marital problems and recent separation

escalated into an argument, that Reyes began screaming at and pushing her and

slapped her on the left side of her face with an open hand, and that he then fled the

residence. (CR at 96).

      The offense report also indicated that Garcia told police that he had seen

both Reyes and Maldonado pushing each other in the kitchen, but that “...he did

not want to interfere with their relationship problems.” (CR at 96). The report

further indicated that the officers observed redness and minor swelling on

Maldonado’s left cheek, which they photographed. (CR at 96-97).

      Reyes was subsequently charged for committing family-violence assault by

intentionally, knowingly, and recklessly causing bodily injury to Maldonado by

                                          1
pushing her about the body with his hand or, in the alternative, by striking her

about the head with his hand. (CR at 2-5). On March 30, 2006, Reyes pleaded

guilty to the charged offense. (CR at 15-18).

       On March 2, 2012, Reyes filed an application for writ of habeas corpus

under article 11.072 of the Code of Criminal Procedure, alleging that his guilty

plea was involuntary because trial counsel, Wendy Ferrell, rendered ineffective

assistance of counsel by failing to properly advise him of the immigration

consequences of his guilty plea, by failing to adequately investigate his case in

order to advance the theory of self-defense, and by failing to advise him regarding

the law of self-defense. (CR at 22-41). Reyes also raised a claim of actual

innocence. (CR at 41).5

       In the State’s written response to Reyes’s writ application, the State argued

that with respect to Reyes’s Padilla claim, Padilla did not retroactively apply to

his case, (CR at 60-62), that he failed his burden of proving that trial counsel


       5
           In his statement of facts in his PDR brief, Reyes makes numerous assertions of “fact,”
such as trial counsel’s alleged numerous failings and the complainant’s alleged motivation for
provoking Reyes to assault her, that were not established as proven facts. See (Appellee’s PDR
brief at 3-5, 7). Rather, these “facts” are merely a restatement of Reyes’s writ allegations, which
the trial court did not purport to adopt as credible. (CR at 130-32); (SCR at 8-9). The only
aspect of Reyes’s allegations the trial court expressly found to be credible was that he was not
sufficiently admonished of the immigration consequences of his guilty plea. (SCR at 8 – “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.”) (emphasis added).

                                                 2
rendered deficient performance, (CR at 62-64), and that he failed his burden of

proving that he was prejudiced by any alleged deficient performance by trial

counsel. (CR at 64-69). Specifically, the State argued that Reyes failed to

overcome the strong presumption of effective assistance recognized by Padilla by

failing to corroborate his unsubstantiated allegations with affidavits or testimony

from trial counsel. (CR at 62-64). The State also argued that Reyes failed his

burden of proving that he was prejudiced by any alleged deficient performance

because any assertion that he would have pled not guilty and insisted on going to

trial was not credible and because he failed to show that a decision to reject the

plea bargain would have been rational under the circumstances. (CR at 64-69).

      Additionally, the State argued that Reyes failed to meet his burden of

proving ineffective assistance with respect to his claims that trial counsel failed to

adequately investigate his case in order to advance a theory of self-defense and

failed to advise him on the law of self-defense because Reyes failed to present

credible proof and because his proffered evidence did not support the theory of

self-defense. (CR at 70-76, 78-80). The State argued that, consequently, Reyes

failed to meet his burden of proving that his guilty plea was involuntary. (CR at

81). The State further argued that Reyes failed his burden of proving actual




                                           3
innocence because none of his proffered evidence was newly discovered or

unquestionably established his innocence. (CR at 82-84).

      At the writ hearings, Reyes presented the testimony of several character

witnesses. (RR2 at 6-7, 11-12, 15-16, 20-22, 28-39, 77-78). Additionally, Garcia,

Reyes’s cousin at whose house the assault had occurred, testified that when

Maldonado came to his house on the day of the offense, she appeared upset and

that “it was obvious that she came into the house to start a fight.” (RR2 at 41-44);

see also (CR at 45-46). Garcia testified that he remained in the living room while

Reyes and Maldonado began arguing in the kitchen. (RR2 at 43). Garcia testified

that it was apparent to him that Maldonado was “trying to provoke [Reyes] to do

something” because she kept yelling, “Hit me.” (RR2 at 44).

      Garcia testified that he could not see what was happening in the kitchen,

such that he did not know whether Reyes struck Maldonado, but he concurred

with Reyes’s writ counsel that Maldonado had been the aggressor. (RR2 at 45-

48). Garcia testified that he ultimately intervened and offered Reyes the use of his

vehicle so that he could leave the house and that Reyes then left the house in his

vehicle. (RR2 at 46-47). Garcia described Maldonado as being upset, while

Reyes had remained calm. (RR2 at 47). On cross-examination, Garcia




                                          4
acknowledged that he did not relate any of this information to the police at the

time of the offense. (RR2 at 50-53).

      A.R., one of Reyes’s sons, testified at the evidentiary hearing that he had

observed the argument between Reyes and Maldonado, that Maldonado “told

[Reyes] to hit her,” and that Maldonado slapped and scratched Reyes. (RR2 at 56-

58, 60). A.R. denied seeing Reyes punch or slap Maldonado and agreed with

Reyes’s writ counsel that Reyes “maybe touch[ed] her to move her to get by.”

(RR2 at 59-61, 64-66). One of Reyes’s other sons, J.C.R., testified at the

evidentiary hearing that he did not have a good recollection of what had occurred

during the argument, (RR2 at 68, 71-72), but that he recalled staying in the living

room while his parents argued in the kitchen, such that he did not see whether

Reyes hit Maldonado. (RR2 at 67-68, 70-73).

      The record reflects that during arguments at the final writ hearing, the trial

court’s primary, if not exclusive, concern was Reyes’s Padilla claim, specifically,

the trial court questioned the State as to why Reyes would not be entitled to relief

on his Padilla claim based on his attestation that he was not properly advised of

the immigration consequences, (RR3 at 23-24), and the trial court opined that

Reyes’s possible separation from his children would be a “...pretty strong motive

to take your chances and go to trial and not want to plead guilty.” (RR3 at 26).

                                          5
Additionally, when the State argued that Reyes was still required to show that a

decision to reject the plea bargain to avoid adverse immigration consequences

would have been rational under the circumstances, the trial court disagreed with

the State’s assertion that Reyes failed to articulate a viable defense, observing that

self-defense “...sort of seems liked a plausible defense.” (RR3 at 27-29).

      When Reyes’s writ counsel broached the subject of Reyes’s actual-

innocence claim at the final writ hearing, the following exchange occurred:

[Court]:   Well, I don’t think I’m going to adopt, lock, stock, and barrel, either
           side’s findings of fact.
                  I think what I’m going to do is look at what you say and they
           say and use those as guides and probably create my own. (RR3 at
           34).
                                     * * *
[Court]:   I don’t think I can, based on that finding, make an actual innocence
           finding.
[Defense]: Okay.
[Court]:   My understanding of actual innocence – again, not having thoroughly
           researched it, you need rock-solid proof, like clear DNA evidence that
           shows it was not this guy; it was somebody else.
[Defense]: It’s got to be clear and convincing.
[Court]:   I mean, the State still has the opportunity to bring in the arresting
           officer or bring in the victim or bring in anybody else. And I’m not
           prepared to say, at this point, that I can make an absolute – there is no
           issue of actual innocence finding. I don’t think I can. (RR3 at 34-
           35).

      The trial court’s initial findings of fact stated, in relevant part, that:

      9.     The testimony of Mr. Garcia and the children (who admittedly did not
             see everything and who naturally have a motive to support the

                                            6
       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.
                                * * *
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
       at 131).

The trial court’s initial conclusions of law stated, in relevant part, that:

1.     The Supreme Court decision of Padilla v. Kentucky, 130 S. Ct. 1473
       (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 Tanklevskaya 361
       S.W. 3rd 86 (Tx. App.-Houston 2011); Aguilar v. State, ___ S.W. 3rd
       ___, (Tx. 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 [sic]
       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. (CR at 131-32).



                                     7
        On January 30, 2013, the State moved to abate the direct appeal and to

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

of law. See (State’s Motion to Abate Appeal). Specifically, the State, pointing out

that the trial court’s findings constituted nothing more than a restatement of

Reyes’s writ claims or a recitation of the evidence that was or was not presented at

the writ hearing, asserted that the findings were inadequate because there were

virtually no findings with respect to how trial counsel rendered deficient

performance. See id. at 4-5. The State pointed out that while the trial court found

that Reyes was not “sufficiently admonished,” it failed to resolve any disputed fact

issues regarding whether trial counsel rendered deficient performance by failing to

properly advise Reyes of the immigration consequences of his guilty plea. See id.

at 5.

        The State further asserted that the trial court’s findings were inadequate

with respect to the prejudice prong of the Strickland standard because the court

failed to make necessary credibility findings and failed to make findings as to

whether a decision to reject the plea bargain would have been objectively rational

under the circumstances. See id. at 6-7.

        On February 14, 2013, the same day the State filed its direct-appeal brief,

the Eighth Court granted the State’s motion to abate the appeal and issued the

                                            8
following directive to the trial court: “The appeal is ABATED and the Honorable

Thomas A. Spieczny, Judge for the County Court at Law No. 7, is directed to enter

the missing findings of fact and conclusions of law.” (SCR at 4).

       The trial court’s supplemental findings of fact stated, in relevant part, that:

       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 #11.6 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.
       2.      The Court further finds that the Defendant would absolutely
               positively NOT have pled 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).
       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.... This data7 (which
               presumably has always been available to the State) totally undermines


       6
          The trial court’s original finding of fact #11 reads as follows: “The criminal charge
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 26, 2006. (Juan
Carlos Reyes affidavit ¶2-4). 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.” (CR at 131).
       7
         The “data” to which the trial court referred was statistical data, of which the trial court
took judicial notice, from the Office of Court Administration regarding the dispositions of
family-violence assault cases in 2005. (SCR at 8-9). It should be noted that this data was
obtained outside the record of the habeas proceedings.

                                                  9
             the claim that Juan Carlos Reyes had to take the plea to avoid the
             harsh consequences of proceeding further through the judicial
             process.
      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
             face the “risks” of misdemeanor prosecution. (SCR at 8-9)
             (capitalization in original).

      The trial court issued one supplemental conclusion of law: “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.” (SCR at 9).




                                         10
                  SUMMARY OF THE STATE’S ARGUMENTS

       Summary of the State’s reply to Reyes’s first and third issues: The

record reflects that the trial court based its decision to grant writ relief solely on its

legal conclusion that Reyes was denied effective assistance of counsel with respect

to his Padilla claim. The trial court’s actions and statements indicate that it

rejected and impliedly denied Reyes’s other non-Padilla writ grounds.

Consequently, the Eighth Court did not err in considering the trial court’s decision

not to grant relief on Reyes’s other writ grounds as an indication that the trial court

rejected and impliedly denied those grounds. Additionally, none of the trial

court’s findings and conclusions signaled an intent to grant relief on Reyes’s other

non-Padilla writ grounds. And any findings and conclusions on Reyes’s other

non-Padilla writ grounds was not essential or potentially dispositive to the only

issue the State appealed to the Eighth Court. Therefore, the Eighth Court did not

err to the extent that it did not remand the case for findings and conclusions on

Reyes’s other non-Padilla writ grounds.

       Summary of the State’s reply to Reyes’ second issue: The Eighth Court

did not err in determining that the sole basis for the grant of any relief by the trial

court was Reyes’s Padilla claim and that the trial court impliedly denied the rest

of his grounds. And in doing so, the Eighth Court did not deprive Reyes of the

                                            11
opportunity to obtain review of the trial court’s decision not to grant relief on his

other non-Padilla writ grounds, since section 8 of article 11.072 of the Code of

Criminal Procedure allows a writ applicant to appeal a partial denial of his writ

application.




                                          12
         STATE’S REPLIES TO APPELLEE’S ISSUES PRESENTED

REPLY TO ISSUES ONE AND THREE: The sole basis for the trial court’s
grant of writ relief was its conclusion that Reyes’s trial counsel rendered
ineffective assistance of counsel by failing to properly advise him of the
immigration consequences of his guilty plea as required by Padilla v.
Kentucky. Additionally, the trial court’s statements and actions indicate that
it rejected and impliedly denied Reyes’s other non-Padilla writ grounds.
Consequently, the Eighth Court did not err in considering Reyes’s other
grounds to have been rejected or impliedly denied by the trial court.
Moreover, none of the trial court’s findings and conclusions showed that the
trial court intended to grant relief on Reyes’s other non-Padilla writ grounds.
And findings and conclusions on those other writ grounds was not essential or
potentially dispositive to the issue the State appealed to the Eighth Court.
Therefore, the Eighth Court did not err to any extent that it did not remand
the case for findings and conclusions on Reyes’s other writ grounds.

                               UNDERLYING FACTS

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

statement of facts above.

                        ARGUMENT AND AUTHORITIES

      In his first ground presented for review, Reyes asserts that the Eighth 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 claim when the trial court was

ordered to only supplement its findings of fact and conclusions of law as to Reyes’

Padilla claim.” See (Appellee’s PDR brief at 19). Specifically, Reyes appears to

complain that the Eighth Court, when it abated the State’s appeal and remanded


                                            13
the case for supplemental findings and conclusions, erroneously restricted the trial

court to supplement its findings and conclusions only with respect to Reyes’s

Padilla claim and that such restriction was erroneous because the trial court made

findings and conclusions that Reyes contends is an indication that its grant of writ

relief may have been based on non-Padilla claims and because his non-Padilla

claims were potentially dispositive of the trial court’s ruling.

      Additionally, in his third ground presented for review, Reyes asserts that the

Eighth Court 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.” See (Appellee’s PDR brief at 27).

Specifically, Reyes appears to complain that the Eighth Court erred in considering

the trial court’s failure to articulate Reyes’s non-Padilla claims as the basis of its

grant of writ relief as being an indication that the trial court denied those claims.

      Because the issues of whether the Eighth Court erred in allegedly restricting

the trial court’s supplementation of findings and conclusions to Reyes’s Padilla

claims and whether Reyes’s other claims were potentially dispositive to the State’s

appeal of the trial court’s grant of writ relief on the basis of Padilla rest on

whether the Eighth Court properly concluded that the trial court indicated an intent

                                           14
to grant relief only on Reyes’s Padilla claim, to the exclusion of all others, such

that his other claims were impliedly denied, the State will address these two

grounds together.

I.    Because the sole basis for the trial court’s grant of writ relief was
      Reyes’s Padilla claim, and because the trial court’s statements and
      actions indicated that it rejected Reyes’s other grounds, the Eighth
      Court did not err in considering Reyes’s non-Padilla writ grounds to
      have been rejected and impliedly denied. (Reyes’s Ground Three)

      In the context of error preservation, this Court has held that a trial court’s

ruling on a complaint or objection can be impliedly, rather than expressly, made.

See Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App. 1995). A trial court’s

ruling on a matter need not be expressly stated if its actions or other statements

otherwise unquestionably indicate a ruling. See Montanez v. State, 195 S.W.3d

101, 104 (Tex.Crim.App. 2006); Rey, 897 S.W.2d at 336; Miller v. State, 83

S.W.3d 308, 319 (Tex.App.–Austin 2002, pet. ref’d). Appellate courts will

generally find that a trial court made an implicit ruling on an objection when the

objection was brought to the trial court’s attention and the trial court’s subsequent

action clearly addressed the complaint. See State v. Kelley, 20 S.W.3d 147, 154

n.3 (Tex.App.–Texarkana 2000, no pet.); see also Montanez, 195 S.W.3d at 104

(holding that the record must sufficiently reflect that the trial court ruled adversely

on a motion); Miller, 83 S.W.3d at 319 (holding that in most cases where a motion

                                           15
was found to be implicitly overruled, the trial judge took some affirmative action

that clearly indicated a ruling).

       Applying these principles to the context of the trial court’s ruling on a post-

conviction writ, where a writ applicant, as the moving party, proffers multiple

independent legal grounds to the trial court to justify the grant of habeas-corpus

writ relief, a trial court’s disposition of grounds not expressly ruled on can be

impliedly made if the trial court’s actions or other statements otherwise indicate a

particular disposition. Cf. Montanez, 195 S.W.3d at 104; Rey, 897 S.W.2d at 336;

Miller, 83 S.W.3d at 319; Kelley, 20 S.W.3d at 154 n.3. In this case, the trial

court’s actions and statements indicate that the court rejected and impliedly denied

Reyes’s other non-Padilla writ grounds.

       As the Eighth Court correctly noted in this case, and Reyes does not appear

to dispute, the clear legal basis for the trial court’s grant of writ relief was Reyes’s

Padilla claim: “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 that Reyes’s trial counsel rendered ineffective assistance, thereby

entitling Reyes to habeas-corpus relief.” See Ex parte Reyes, 2014 WL 2993789

at *4. All throughout the final writ hearing, the trial court’s questions, statements,

and opinions all indicated that his primary, if not exclusive, concern, was Reyes’s

                                            16
Padilla claim. (RR3 at 23-24, 26). To the extent that the trial court opined that

self-defense seemed like a plausible defense, it was in the context of the

discussion between the State and the trial court as to whether Reyes could show

that he was prejudiced by any failure of trial counsel to admonish him of the

immigration consequences of his guilty plea, and was not in reference to any other

ground. (RR3 at 27-29). Specifically, the State argued that in order for Reyes to

show a decision to reject the plea bargain to avoid adverse immigration

consequences would have been rational under the circumstances, he would need

to, among other things, articulate a viable defense, at which point the trial court

opined that self-defense might have been plausible. (RR3 at 27-29).

      Also, the trial court expressly stated on the record that Reyes had not met

his burden of demonstrating actual innocence. (RR3 at 34-35). Specifically, the

trial court explained that an actual-innocence claim was one with a high burden of

proof, and it correctly assessed that it would not likely be able to find that the

quantum of proof presented by Reyes was sufficient to meet that extraordinarily

high burden. (RR3 at 34-35). See Ex parte Chavez, 371 S.W.3d 200, 206

(Tex.Crim.App. 2012) (holding that in order to obtain relief on a bare actual-

innocence claim, a defendant must unquestionably establish his innocence; that is,

he must show by clear-and-convincing evidence that, presented with both the

                                           17
inculpatory evidence at trial and the newly discovered or available evidence of

innocence, no reasonable juror would have convicted him). The trial court also

advised the parties that he would not be adopting either side’s proposed findings

in their entirety and that he would create his own findings to explain the particular

basis for his ruling. (RR3 at 34).

      The trial court’s initial, self-drafted findings of fact were mostly a recitation

of evidence that was or was not presented at the writ hearings. (CR at 130-31).

The only writ ground mentioned in these findings was a restatement of Reyes’s

complaint that trial counsel failed to properly admonish him of the immigration

consequences of his guilty plea. (CR at 131). And all of the trial court’s initial,

self-drafted conclusions of law were devoted to Reyes’s Padilla claim. (CR at

131-32).

      In his appellate brief, Reyes excises half of the trial court’s sixth conclusion

of law, specifically, Reyes “...was prejudiced...because he has plausible defenses

to the underlying charge which, if believed by a jury, could result in an acquittal,”

to argue that that excerpted portion of the conclusion is indicative of the trial

court’s intent to grant relief on his other grounds. However, when viewed in the

proper context of the entire conclusion of law, that excerpted portion was a portion

of a conclusion of law addressing whether Reyes demonstrated prejudice on his

                                           18
Padilla claim and, like the discussion on this matter at the writ hearing, was

merely a partial analysis as to whether a decision to reject the plea bargain to avoid

adverse immigration consequences would have been rational under the

circumstances: “The Defendant was prejudiced because he would not have plead

[sic] 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.” (CR at 132).

        And as will be discussed shortly, the Eighth Court’s remand order did not

improperly restrict the trial court’s supplemental findings to Reyes’s

Padilla claim. The trial court, however, devoted the entirety of its supplemental

findings and conclusions of law to Reyes’s Padilla claim. (SCR at 8-9).8 While

the trial court opined at the writ hearing that it thought Reyes’s witnesses testified

honestly about what they did or did not see, (RR3 at 30), the only express

credibility finding the trial court made in its findings was that it found Reyes’s

affidavit to be credible only on the issue of his Padilla claim.



        8
         In light of the U.S. Supreme Court’s holding in Chaidez v. United States, ---U.S.---, 133
S.Ct. 1103, 1111, 1113, 185 L.Ed.2d 149 (2013), and this Court’s holding in Ex parte De Los
Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013), that Padilla was a new rule of criminal
procedure that did not retroactively apply to cases already final on direct review, which was
dispositive of the State’s appeal of the trial court’s Padilla ruling, the State took no further action
regarding the adequacy of the trial court’s supplemental findings on Reyes’s Padilla claim.

                                                  19
      Thus, the record reflects that the trial court based its decision to grant writ

relief solely on its legal conclusion that Reyes was denied effective assistance of

counsel with respect to his Padilla claim. And the trial court’s statements and

actions, specifically: (1) its decision not to grant any requested relief on Reyes’s

other writ grounds, (2) its decision to specifically address only Reyes’s Padilla

claim in its findings, even when afforded an opportunity to clarify any ambiguity

by supplying whatever additional fact findings were necessary to fully explain the

reason(s) for its decision to grant relief, and (3) its statements on the record

indicating the express rejection of Reyes’s actual-innocence claim and its intent to

craft its own specific findings, indicate the trial court rejected and impliedly

denied Reyes’s other writ claims. Cf. Montanez, 195 S.W.3d at 104; Rey, 897

S.W.2d at 336; Miller, 83 S.W.3d at 319; Kelley, 20 S.W.3d at 154 n.3.

      Consequently, the Eighth Court did not err in considering the trial court’s

decision not to grant relief on Reyes’s other writ grounds as demonstrating that the

trial court rejected and implicitly denied those grounds. Cf. Montanez, 195

S.W.3d at 104; Rey, 897 S.W.2d at 336; Miller, 83 S.W.3d at 319; Kelley, 20




                                           20
S.W.3d at 154 n.3.9 Reyes’s third ground presented for review should thus be

overruled.

II.    Because none of the trial court’s findings and conclusions showed that
       the trial court intended to grant relief on Reyes’s other non-Padilla writ
       grounds, and because those other writ grounds was not potentially
       dispositive to the issue the State appealed to the Eighth Court, the
       Eighth Court did not err to any extent that it did not remand the case
       for findings and conclusions on Reyes’s other writ grounds. (Reyes’s
       Ground One)

       In his first ground for review, Reyes complains that the Eighth Court’s

alleged restriction of the trial court’s supplemental findings and conclusions to

only Reyes’s Padilla claim was improper because certain findings by the trial

court in its initial findings and conclusions “...reveal that the trial court did not

confine itself to Reyes’ Padilla claim in deciding to vacate Reyes’ conviction.”

See (Appellee’s PDR brief at 22). Reyes argues that because these findings

indicate that the trial court’s habeas relief was based on his other writ grounds, the

Eighth Court was on notice that there were other potentially dispositive fact issues




       9
          At the end of his third ground in his PDR brief, Reyes argues that “[t]he 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 (Appellee’s PDR brief at 31-
32). This argument is almost identical to his sixth ground presented for review in his PDR,
which reads: “The court of appeals erred in treating and viewing the trial court’s findings of fact
in a piecemeal fashion, rather than in their totality.” See (Appellee’s PDR at 2, 15-17). Because
this Court did not grant review on Reyes’s sixth ground, the State will not address that argument
here unless otherwise directed by this Court.

                                                 21
for which it should have remanded the case for additional findings and

conclusions. See id.

      In support of his argument that the trial court made a number of findings

indicating that the trial court intended to grant relief on his other grounds, Reyes,

in his PDR brief, points to the following language in the Eighth Court’s opinion:

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

ostensibly support Reyes’s claims that he was actually innocent and he received

ineffective assistance of counsel because his counsel failed to conduct an

independent investigation and inform him of the law of self-defense.” See Ex

parte Reyes, 2014 WL 2993789 at *4.

      And the findings that Reyes claims indicate that the trial court intended to

grant writ relief based on his other grounds are findings that the assault occurred at

Garcia’s house, that portions of the “confrontation” were witnessed or overheard

by Garcia and Reyes’s two sons, that there was nothing in the trial court’s file that

indicated that Garcia and Reyes’ sons gave witness statements, that photographs of

the complaining witness were not presented at the writ hearing, that the testimony

of Garcia and Reyes’ sons supports a finding that Maldonado was the aggressor

and that Reyes just put his hands on her to get past her and leave, and that Reyes’s

case was resolved quickly. See (Appellee’s PDR brief at 21-23). These findings

                                           22
constitute nothing more than a recitation of what evidence was or was not

presented at the writ hearing, a description of how Reyes’s case progressed

procedurally, and the unremarkable observations that the assault occurred where it

was alleged to have been committed and that Garcia and Reyes’s children were in

the home when the assault occurred. See (Appellee’s PDR brief at 21-23).

      It is entirely possible that certain facts lending support to one writ ground

might in some form lend support to another completely distinct writ ground. That

is because most writ grounds are governed by the same standards for analysis. For

example, an analysis of whether a decision to reject a plea bargain and proceed to

trial would have been rational under the circumstances for an ineffective-

assistance claim alleging the failure to advise as to sex-offender registration

requirements, being analyzed under the same standards and factors for a Strickland

prejudice analysis, would substantially mirror the analysis of whether a decision to

reject a plea bargain and proceed to trial would have been rational for an

ineffective-assistance claim alleging the failure to advise of immigration

consequences. See, e.g., Padilla, 559 U.S. at 372 (“[T]o obtain relief on this type

of claim, a petitioner must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances.”); Roe v. Flores-

Ortega, 528 U.S. 470, 480, 486, 120 S.Ct. 1029, 1036, 1039, 145 L.Ed.2d 985

                                           23
(2000). The trial court’s findings as to the strength of the State’s case and the

existence of viable defensive theories would apply equally to both grounds, but

that does not necessarily mean that the trial court found trial counsel to be

deficient in both instances. Therefore, the fact that some fact findings might

partially support another ground is not dispositive as to whether the trial court

intended to grant that writ ground.

       The Eighth Court, recognizing that some findings may serve to operate as

support for different writ grounds, did not, however, hold that the trial court’s

findings served to demonstrate Reyes’s entitlement to relief on his other writ

grounds. Rather, the Eighth Court only held that certain findings could have

supported those other grounds in some way.10 And in this case, the trial court’s

only finding that suggested deficient performance by trial counsel was its finding

that trial counsel failed to properly advise Reyes of the immigration consequences

of his guilty plea. (SCR at 8, FoF #1).

       There is absolutely nothing in the trial court’s findings that suggests that the

trial court found that trial counsel lacked a strategic reason, or that there was no

       10
          For this reason, the State disagrees with Reyes’s characterization of the Eighth Court’s
holding as “...acknowledg[ing] Reyes’ [sic] 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.” See (Appellee’s PDR brief at
25).

                                                24
conceivable strategic reason, for not pursuing the theory of self-defense, that trial

counsel performed deficiently with respect to any investigation of facts related to

self-defense, or that Reyes was prejudiced by any deficient performance by trial

counsel’s decision not to pursue self-defense. See Strickland, 466 U.S. at 687;

Cannon v. State, 252 S.W.3d 342, 348-49 (Tex.Crim.App. 2008) (holding that a

defendant, in order to obtain a reversal of his conviction on the grounds of

ineffective assistance of counsel, must demonstrate both deficient performance

and prejudice); cf. Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App. 2003)

(holding that if counsel’s reasons for his conduct do not appear in the record and

there is at least the possibility that the conduct could have been legitimate trial

strategy, the Court would defer to counsel’s decision and deny relief on an

ineffective-assistance claim on direct appeal).11

       11
           The trial court was correct in not making adverse findings with respect to trial
counsel’s performance in not pursuing self-defense because Reyes, who bore the burden of proof
at the writ hearing, did not procure trial counsel’s attendance and did not present the trial court
with an affidavit from trial counsel. The decision to pursue self-defense as a defensive theory is
generally one based on trial counsel’s strategy, and the law is well settled that an attorney should
not be denounced as ineffective where the record is silent as to the reasons for their action or
inaction. See Ex parte Flores, 387 S.W.3d 626, 633 (Tex.Crim.App. 2012) (“Counsel’s
conscious decision not to pursue a defense or to call a witness is not insulated from review, but,
unless a defendant overcomes the presumption that counsel’s actions were based in sound trial
strategy, counsel will generally not be found ineffective.”) (citations omitted); Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (holding that trial counsel should ordinarily
be afforded an opportunity to explain his actions before being denounced as ineffective; absent
such opportunity, an appellate court should not find deficient performance unless the challenged
conduct was so outrageous that no competent attorney would have engaged in it); Rylander v.
State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003); McDonald v. State, No. 08-08-00103-CR,

                                                 25
       Further, there is nothing in these findings that suggests that the trial court

found that Reyes presented newly discovered or available evidence that

unquestionably established his innocence. See Ex parte Chavez, 371 S.W.3d at

206 (holding that in order to obtain relief on a bare actual-innocence claim, a

defendant must unquestionably establish his innocence; that is, he must show by

clear-and-convincing evidence that, presented with both the inculpatory evidence

at trial and the newly discovered or available evidence of innocence, no reasonable

juror would have convicted him). In fact, the trial court expressly stated on the

record that Reyes had not met his burden of demonstrating actual innocence.

       And as previously discussed, to the extent that the trial court opined that

self-defense seemed like a plausible defense, it was in the context of the

discussion between the State and the trial court as to whether Reyes could show

that he was prejudiced by any failure of trial counsel to admonish him of the

immigration consequences of his guilty plea and was not in reference to any other

ground. (RR3 at 27-29). Specifically, the State argued that in order for Reyes to

show that a decision to reject the plea bargain to avoid adverse immigration



2010 WL 3910424 at *5 (Tex.App.–El Paso, Sept. 30, 2011, pet. ref’d) (not designated for
publication) (holding that the decision not to pursue a particular defensive theory is a matter of
trial strategy), citing Gottson v. State, 940 S.W.2d 181, 185 (Tex.App.–San Antonio 1996, pet.
ref’d).

                                                 26
consequences would have been rational under the circumstances, he would need

to, among other things, articulate a viable defense, at which point the trial court

opined at the final writ hearing that self-defense “seem[ed]” plausible. (RR3 at

27-29).

       While the State is not asserting that the trial court was necessarily required

to use any specific terminology to indicate a legal conclusion that a writ applicant

is entitled to relief on a particular ground, the trial court in this case did not state

any findings that would, at the very least, give rise to a reasonable inference that

the trial court intended to grant relief on Reyes’s other writ grounds. Contrary to

Reyes’s assertions, the trial court’s comments and findings do not indicate that the

trial court intended to grant him writ relief on any of his non-Padilla writ claims

and thus did not put the Eighth Court on notice that there were other potentially

dispositive fact issues for which it should have remanded the case for additional

findings and conclusions. And for the following reasons, the Eighth Court did not

err in not remanding the case for findings on Reyes’s other writ grounds because

those grounds were not potentially dispositive to the Eighth Court’s review of the

issue raised in the State’s appeal–whether the trial court’s legal conclusion and

ruling that Reyes sufficiently demonstrated his entitlement to writ relief on the

basis of Padilla constituted an abuse of discretion.

                                            27
       In State v. Cullen, this Court held that upon request of the losing party on a

motion to suppress evidence, the trial court was required to state its essential

findings, which are findings of fact and conclusions of law that are adequate to

provide an appellate court with a basis upon which it may review a trial court’s

application of the law to the facts. See State v. Cullen, 195 S.W.3d 696, 699

(Tex.Crim.App. 2006). Such a requirement would ensure the proper presentation

of the case pursuant to rule 44.4 of the Rules of Appellate Procedure and that

appellate resolution of the suppression issue “is based on the reality of what

happened [at the trial court level] rather than on [appellate] assumptions that may

be entirely fictitious.” See State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.

2011), quoting Cullen, 195 S.W.3d at 698; see also TEX. R. APP . P. 44.4(a) (“A

court of appeals must not affirm or reverse a judgment or dismiss an appeal if: (1)

the trial court’s erroneous action or failure or refusal to act prevents the proper

presentation of a case to the court of appeals; and (2) the trial court can correct its

action or failure to act.”).

       In State v. Elias, this Court further “...continued the route it charted in

Cullen to ensure that reviewing courts need not presume, assume, or guess at what

historical facts a trial judge actually found when making [his] ruling...” by

requiring the remand of a case to the trial judge to make findings of fact with

                                           28
greater specificity if the original findings are insufficient to resolve the legal

question. See State v. Mendoza, 365 S.W.3d 666, 670-71 (Tex.Crim.App. 2012);

Elias, 339 S.W.3d at 679. Specifically, this Court held that once a trial court has

taken it upon itself to enter specific findings and conclusions, it assumes 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. See Elias, 339 S.W.3d at 676.

         In State v. Mazuca, however, this Court noted that a remand of that case for

more explicit findings was not warranted because there was “...nothing to be

gained from a remand under Rule 44.4 to assure ‘the proper presentation of’ the

case on appeal.” See State v. Mazuca, 375 S.W.3d 294, 308 n.70 (Tex.Crim.App.

2012).

         As previously discussed in the State’s reply to Reyes’s third ground for

review, and as discussed above, the record reflects that the trial court based its

decision to grant writ relief solely on Reyes’s Padilla claim and that it implicitly

rejected and denied Reyes’s other grounds for relief. Therefore, Reyes’s writ

application was granted in part and denied in part.

         In order for a party to appeal an adverse ruling on an article 11.072 habeas-

corpus writ application, section 8 of article 11.072 provides that:

                                            29
      If the application is denied in whole or part, the applicant may appeal under
      Article 44.02 and Rule 31, Texas Rules of Appellate Procedure. If the
      application is granted in whole or part, the state may appeal under Article
      44.01 and Rule 31, Texas Rules of Appellate Procedure. See TEX. CRIM.
      PROC. CODE art. 11.072 § 8.

      As previously discussed in the State’s reply to Reyes’s third ground for

review, the sole basis of the trial court’s grant of writ relief was Reyes’s Padilla

claim, and the trial court essentially denied, or decided not to grant relief on,

Reyes’s other writ grounds. The State, pursuant to section 8 of article 11.072,

appealed the only adverse ruling it received, which was a partial grant of Reyes’s

writ application on the basis of his Padilla ground.

      In his reply brief on direct appeal, Reyes asserted that the trial court

provided the Eighth Court “...with all of the supplemental findings of fact and

conclusions of law it needs to grant Reyes relief on [his other grounds]...,” that the

Eighth Court failed to be “more specific” in its remand order about what

constituted the missing findings and conclusions, and argued in the alternative that

if the Eighth Court found the grant of relief could not be sustained on Reyes’s

Padilla claim, the Eighth Court could not reverse the trial court’s ruling on that

basis and was required to remand the case for additional findings on his other writ

grounds because those other grounds were potentially dispositive of the issue the

State raised in its appeal. See (Appellee’s direct-appeal brief at 20, 22-24, 27-32).

                                           30
Reyes did not, however, separately appeal the adverse determination he received,

which was a partial denial of his writ application on his other writ grounds.

      Therefore, during the pendency of the State’s appeal, the only adverse

ruling at issue before the Eighth Court was the State’s appeal of the trial court’s

grant of writ relief on the basis of Reyes’s Padilla ground. Whether the trial court

erred in essentially denying Reyes’s other writ grounds, and its reasons for doing

so, was not essential or potentially dispositive to whether the trial court correctly

concluded that Reyes sufficiently demonstrated his entitlement to writ relief on the

basis of Padilla. And because Reyes did not appeal the partial denial of his writ

application, any findings and conclusions on his other writ grounds were not

potentially dispositive to any complaint raised before the Eighth Court.

      In order for the Eighth Court to consider Reyes’s other writ grounds as

potentially dispositive to the issue the State raised in its own appeal, the Eighth

Court would have to assume a different conclusion than that reached by the trial

court, which was that Reyes demonstrated entitlement to writ relief on his Padilla

claim, but not on his other writ grounds, and certainly not on the ground of actual

innocence. This Court has recently held that an appellate court erred to the extent

that it viewed the evidence in the light most favorable to the trial court’s ultimate

decision to deny appellant’s motion to suppress, to the extent that it disregarded an

                                           31
explicit conclusion by the trial court that a detention, rather than a consensual

encounter, had occurred. See Johnson v. State, 414 S.W.3d 184, 192

(Tex.Crim.App. 2013). Under this reasoning from Johnson, the Eighth Court in

this case did not err in viewing the evidence in the light most favorable to the trial

court’s legal conclusion that Reyes demonstrated his entitlement to writ relief on

his Padilla claim, and in not assuming contrary conclusions with respect to

Reyes’s other writ grounds, in order to justify the trial court’s ultimate decision to

grant writ relief.

       Under these circumstances, the Eighth Court did not err in determining that

any findings of fact and conclusions of law on Reyes’s other writ grounds were

not essential or potentially dispositive to any issue before it and that the only

additional findings and conclusions it needed from the trial court were those that

specifically addressed the adverse ruling before it, specifically, the State’s claim

that the trial court abused its discretion in determining that Reyes had sufficiently

demonstrated his entitlement to writ relief on the basis of Padilla. See, e.g.,

Mazuca, 375 S.W.3d at 308 n.70 (noting that a remand of that case for more

explicit findings was not warranted under the circumstances because there was

nothing to be gained from the remand, and the lack of additional findings would

not have prevented the proper presentation of the case on appeal).

                                           32
      For all the foregoing reasons, the Eighth Court did not err to any extent that

it did not remand the case for findings and conclusions on Reyes’s other non-

Padilla writ grounds. Reyes’s first ground presented for review should thus be

overruled.




                                         33
REPLY TO ISSUE TWO: The Eighth Court did not err in determining that
the sole basis for the grant of any writ relief by the trial court was Reyes’s
Padilla claim and that the trial court impliedly denied the rest of Reyes’s writ
grounds. And in so determining, the Eighth Court did not deprive Reyes of
the opportunity to obtain appellate review of the trial court’s decision not to
grant relief on his other non-Padilla writ grounds, as article 11.072, section 8
of the Code of Criminal Procedure allows a writ applicant to appeal a partial
denial of his writ application.

                               UNDERLYING FACTS

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

statement of facts above.

                        ARGUMENT AND AUTHORITIES

       In his second ground presented for review, Reyes asserts that the Eighth

Court “...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.” See (Appellee’s PDR brief at 24). Specifically,

Reyes appears to allege that the Eighth Court erred in determining that the trial

court “neither identified nor relied on any other theory of law” in granting writ

relief and that its erroneous refusal to review whether his other grounds supported

the grant of writ relief deprived him of the opportunity to obtain review of the trial

court’s decision with respect to those grounds.




                                            34
      As previously discussed, the Eighth Court did not err in determining that the

sole basis for the grant of any writ relief by the trial court was Reyes’s Padilla

claim and that the trial court impliedly denied the rest of his writ grounds. Cf.

Montanez, 195 S.W.3d at 104; Rey, 897 S.W.2d at 336; Miller, 83 S.W.3d at 319;

Kelley, 20 S.W.3d at 154 n.3. While the Eighth Court noted that some of the trial

court’s findings could ostensibly support Reyes’s other writ grounds, it did not

hold that those findings actually demonstrated his entitlement to relief on another

ground, but for the trial court’s failure to specifically identify that other ground.

Rather, it correctly observed that: “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 that Reyes’s trial counsel rendered ineffective assistance,

thereby entitling Reyes to habeas-corpus relief.” See Ex parte Reyes, 2014 WL

2993789 at *4.

      And in doing so, the Eighth Court did not deprive Reyes of the opportunity

to obtain review of the trial court’s decision not to grant relief on his other non-

Padilla writ grounds. As previously discussed, section 8 of article 11.072 allows a

writ applicant to appeal a partial denial of his writ application. See TEX. CRIM.

PROC. CODE art. 11.072 § 8. Nothing but Reyes’s own inaction prevented him

from obtaining appellate review of the trial court’s decision not to grant the other

                                           35
grounds he raised in his writ application. Instead, Reyes appeared to have

abandoned those claims until the U.S. Supreme Court and this Court held that

Padilla did not apply retroactively and it became apparent that the trial court’s

grant of writ relief would not be sustained on Reyes’s Padilla claim.

      Consequently, Reyes fails to demonstrate that the Eighth Court erred in

determining that the sole basis of the trial court’s grant of writ relief was Reyes’s

Padilla claim, and he fails to demonstrate that the Eighth Court’s actions

somehow prevented him from obtaining appellate review of the trial court’s

decision not to grant relief on his other writ grounds. Reyes’ second ground

presented for review should thus be overruled.




                                           36
                                    PRAYER

      WHEREFORE, the State prays that this Court overrule Reyes’s issues

presented for review and affirm the judgment of the Eighth Court of Appeals.

                                     Respectfully submitted,

                                     JAIME ESPARZA
                                     DISTRICT ATTORNEY
                                     34th JUDICIAL DISTRICT



                                     /s/ Lily Stroud
                                     LILY STROUD
                                     ASST. DISTRICT ATTORNEY
                                     DISTRICT ATTORNEY’S OFFICE
                                     203 EL PASO COUNTY COURTHOUSE
                                     500 E. SAN ANTONIO
                                     EL PASO, TEXAS 79901
                                     (915) 546-2059 ext. 3769
                                     FAX (915) 533-5520
                                     EMAIL lstroud@epcounty.com
                                     SBN 24046929

                                     ATTORNEYS FOR THE STATE

                     CERTIFICATE OF COMPLIANCE

      The undersigned does hereby certify that the foregoing document contains

8,701 words.


                                     /s/ Lily Stroud
                                     LILY STROUD

                                        37
                          CERTIFICATE OF SERVICE

      The undersigned does hereby certify that on February 12, 2015, a copy of

the foregoing brief was emailed, through an electronic-filing service provider, to

appellee’s attorney: James D. Lucas, jlucas2@elp.rr.com; and to the State

Prosecuting Attorney, information@SPA.texas.gov.



                                       /s/ Lily Stroud
                                       LILY STROUD




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