                                                                                       ACCEPTED
                                                                                   03-15-00334-CR
                                                                                           6705480
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              8/28/2015 3:01:21 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                             NO. 03-15-00334-CR

                                  IN THE                          FILED IN
                                                           3rd COURT OF APPEALS
                                                               AUSTIN, TEXAS
                             COURT OF APPEALS              8/28/2015 3:01:21 PM
                                                             JEFFREY D. KYLE
                          THIRD DISTRlCT OF TEXAS                  Clerk


                              AUSTIN, TEXAS


                                     §

Ex Parte Moses Martinez              §                        APPELLANT

                                     §



                   APPEAL FROM COUNTY COURT #2

                           BELL COUNTY, TEXAS

                            CAUSE NO. 2Cll-07750




                            APPELLANT'S BRlEF



                                              Jose "Chito" Vela III
                                              Walker Gates Vela PLLC
                                              505 E Huntland Dr, Ste 300
                                              Austin, Texas 78752
                                              Phone: 512.633.1785
                                              Fax: 512.615.3366
                                              Chito. v@walkergatesvela. com
                                              Bar Number: 24048859
Oral Argument Requested
                  IDENTITY OF PARTIES AND COUNSEL


Moses Martinez AKA Moises Martinez Hetnandez
456 S Old Potato Rd
Paige, TX 78659
Appellant

Jose "Chito" Vela III
505 E Huntland Dr, Ste 300
Austin, Texas 78752
Appellate and Writ Attorney for Appellant

Scott Sinsabaugh
1508 SW H.K. Dodgen Loop
Temple, TX 76504
Trial Attorney for Appellant

Stephen Morris
Bell County Attorney's Office
1201 HueyRd
Belton, TX 76513
Appellate Attorney for the State

The Honorable John Mischtian
Bell County Court #2
1201 HueyRd
Belton, TX 76513
Trial Judge




                                     1
                                           TABLE OF CONTENTS


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


TABLE OF AUTHORITIES ................................................................................... iii


STATEMENT OF THE CASE ................................................................................ iv


STATEMENT REGARDING ORAL ARGUMENT ............................................... v


ISSUE PRESENTED ............................................................................................... vi


STATEMENT OF FACTS ........................................................................................ 2


SUMMARY OF THE ARGUMENT ........................................................................ 2


POINT OF ERROR ................................................................................................... 4


         THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE
         CONDUCT A COMPETENCY INQUIRY AFTER TESTIMONIAL
         EVIDENCE AND APPELLANT'S COURTROOM CONDUCT
         SUGGESTED THAT HE WAS INCOMPETENT TO STAND
         TRIAL ............................................................................................................. 4


PRAYER ................................................................................................................. 10


CERTIFICATE OF SERVICE ................................................................................ 11


CERTIFICATE OF COMPLIANCE ...................................................................... 11




                                                             11
                                 TABLE OF AUTHORITIES

Cases

Ex parte Ali, 368 S.W. 3d 827, 830 (Tex. App.- Austin 2012, pet ref d) ... 4, 5, 6, 7

Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006) ............................ 5

Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005) ............................. 6

Padilla v. Kentucky, 559 U.S. 356, 374 (2010) ........................................................ 5

State v. Villegas, (Tex. App.- Dallas 2013) LEXIS 15096 (Unpublished opinion) 6

US v. Batamula, 788 F.3d 166, 172 (5th Cir. Tex. 2015) .......................................... 7

Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) ....................... 8




                                                  111
                           STATEMENT OF THE CASE


Nature of the case:                On September 3, 2011, Appellant was
                                   charged with the Class B misdemeanor of
                                   driving while intoxicated. CR 11.


Course ofproceedings:              On August 9, 2012, Appellant plead no
                                   contest to the Class B driving while
                                   intoxicated charge and was sentenced to
                                   three days jail, an $850 fine, and $409.10 in
                                   court costs. CR 34-35. A writ of habeas
                                   corpus alleging ineffective assistance of
                                   counsel was filed on October 15, 2014. CR
                                   37-52. A hearing on the writ was held on
                                   January 8, 2015. During the hearing on the
                                   writ of habeas corpus, both Appellant and
                                   his trial attorney, Scott Sinsabaugh, testified.
                                   The writ was denied by Judge Mischtian on
                                   Aprill4, 2015. CR69-70, 80.


Disposition of the case:           The writ was denied by Judge Mischtian on
                                   April 14, 2015. CR 69-70, 80. Appellant
                                   timely filed his notice of appeal on May 11,
                                   2015. CR 81.




                                     lV
               STATEMENT REGARDING ORAL ARGUMENT


Appellant requests oral argument because he believes that it would aid in this

Comi's decisional process.     This case turns on whether Appellant received

effective assistance of counsel regarding in his plea to the DWI charge. Oral

argument would assist with this Comi's examination and analysis of the record,

particularly the nuances and complexity of immigration law.




                                        v
                               ISSUE PRESENTED


Is it an abuse of discretion by a trial court to deny a writ of habeas corpus when the

facts show that Appellant was not advised of the immigration consequences of a

plea and the irmnigration consequences of the plea are substantial and prejudice the

Appellant?




                                          Vl
                             NO. 03-15-00334-CR

                                    IN THE

                            COURT OF APPEALS

                         THIRD DISTRICT OF TEXAS

                               AUSTIN, TEXAS

                                       §

Ex Parte Moses Mmiinez                 §                          APPELLANT

                                       §



                       APPEAL FROM COUNTY COURT #2

                           BELL COUNTY, TEXAS

                           CAUSE NO. 2Cll-07750




TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellant Moses Mmiinez, by and through his undersigned

counsel, and offers this Appellant's Brief. Appellant would respectfully show the

Court the following:




                                        1
                                       STATEMENT OF FACTS


Moses Mmiinez AKA Moises Mmiinez Hernandez was brought to the United

States by his parents in 1991, when he was about one year old. RR II 6-7. He was

raised in Austin, Texas, attending school in Austin and eventually graduating from

Reagan High School in 2008. RR II 7. While he was in high school, he worked at

McDonald's, played soccer, and had his first child. RR II 7-8. He now has three

US citizen children, ages 7, 4 and 2. RR II 6. Other than the DWI at issue in this

case, Appellant has no other criminal history.



On September 3, 2011, Appellant was stopped by a Temple Police Officer and

arrested for driving while intoxicated. On June 15, 2012, shortly before

Appellant's plea, the US Department of Homeland Security announced its

Deferred Action for Childhood Arrivals (DACA) program. Appellant was eligible

for DACA when it was announced. 1 However, on August 9, 2012, Appellant plead



1
  See DACA guidelines at: http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-
daca. For purposes of these guidelines, a DWI conviction is considered a "significant misdemeanor." The guidelines
provide that: "You may request DACA ifyou:
l.Were under the age of31 as of June 15, 2012;
2.Came to the United States before reaching your 16th bilthday;
3.Have continuously resided in the United States since June 15, 2007, up to the present time;
4.Were physically present in the United States on June 15,2012, and at the tilne of making your request for
consideration of deferred action with users;
5.Had no lawful status on June 15, 2012;
6.Are currently in school, have graduated or obtained a ce1tificate of completion from high school, have obtained a
general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or
Armed Forces of the United States; and
                                                         2
no contest to the Class B driving while intoxicated charge and was sentenced to

three days jail, an $850 fine, and $409.10 in comi costs. CR 34-35. Because of this

plea, Appellant became ineligible for the newly announced DACA program.

Applicant was eventually ordered depmied from the US by an immigration comi.

His removal from the United States is currently pending.



Testimony of Appellant and Trial Attorney

A writ of habeas corpus alleging ineffective assistance of counsel was filed on

October 15, 2014. CR 37-52. A hearing on the writ was held on January 8, 2015.

During the hearing on the writ of habeas corpus, both Appellant and his trial

attorney, Scott Sinsabaugh, testified. Appellant stated that his trial attmney was

aware that he was an undocumented immigrant to the US. RR II 24. Appellant was

not aware of his eligibility for the DACA program when he plead guilty to the

DWI. RR II 10. Appellant stated that he did not discuss DACA with either his

criminal defense or immigration attmney. RR II 10-11. Appellant plead guilty

"because I didn't think this was going to affect me in the future". RR II 29.



Appellant's trial attorney conceded that "I was aware that he had an immigration

question or issue at some point prior to him signing [the plea]". RR II 43.


?.Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not
                                                       3
However, the trial attorney never spoke to Appellant's immigration attorney. RR II

60. His trial attmney does not practice immigration law. RR II 51. His trial

attmney testified that he relied on the admonishments contained in the plea

agreement stating that there "could" be consequences to a criminal conviction. RR

II 53. His trial attorney was not aware that a DWI conviction would make

Appellant ineligible for DACA. RR II 57-58.


                                SUMMARY OF THE ARGUMENT


The trial court erred by denying the writ of habeas corpus when the testimony of
both the Appellant and his trial attorney showed that neither were aware that a plea
to a DWI would make Appellant ineligible for DACA and thus subject to
depmiation from the United States.

                                            POINT OF ERROR

        THE TRIAL COURT ERRED BY DENYING THE WRIT OF
        HABEAS CORPUS WHEN THE EVIDENCE SHOWED
        APPELLANT'S TRIAL ATTORNEY DID NOT ADVISE HIM OF
        THE IMMIGRATION CONSEQUENCES OF HIS PLEA AND
        APPELLANT STATED HE ONLY PLEAD NO CONTEST
        BECAUSE HE THOUGHT THERE WERE NO IMMIGRATION
        CONSEQUENCES

                                        Argument and Authorities

        An appellate court reviews a trial comi's decision to grant or deny habeas

corpus relief by viewing the facts in the light most favorable to the trial comi's

ruling and upholding that ruling absent an abuse of discretion. Ex parte Ali, 368


otherwise pose a threat to national security or public safe~"
S.W. 3d 827, 830 (Tex. App. - Austin 2012, pet ref d); Ex parte Wheeler, 203

S.W.3d 317, 324 (Tex. Crim. App. 2006). However, when the facts are

uncontested, a de novo review by the appellate comi is appropriate. Ex parte Ali,

368 S.W. 3d at 831. In the absence of express findings of fact, an appeals comi

will impute implied findings of fact that support the ruling when such implied

findings are both reasonable and suppmied by the record. See Johnson v. State, 169

S.W.3d 223, 239 (Tex. Crim. App. 2005).

      The US Supreme Court held that counsel must inform his client whether a

plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. 356, 374 (2010).

When the depmiation consequence is clear, the duty to give correct advice is also

clear. Jd. at 369. The two-pmi Strickland v. Washington test applies to challenges

to guilty pleas based on ineffective assistance of counsel. Ex parte Ali, 368 S.W.

3d 827, 833 (Tex. App.- Austin 2012, pet ref d). An applicant must show (1) that

his counsel's performance was deficient and (2) that there is a reasonable

probability, one sufficient to undermine confidence in the result, that the outcome

would have been different but for his counsel's performance. Id (citing Strickland

v. Washington, 466 U.S. at 694). The test is objective; it turns on what a reasonable

person in the defendant's shoes would do. Id at 835. (citing US v. Smith, 844 F.2d

203, 209 (5 1h Cir. 1988)


                                         5
      The Applicant has the burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Id. However, the Applicant need not show he

would have received a better outcome at trial. Johnson v. State, 169 S.W.3d 223,

231 (Tex. Crim. App. 2005). In determining whether an applicant would not have

plead guilty but for counsel's deficient advice, a court is to consider the

circumstances surrounding the plea and the gravity of the misrepresentation

material to that determination. Ex parte Ali 368 S.W.3d at 837 (citing Ex parte

Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999). A Texas appellate court has

found that eligibility for DACA is a basis for a Padilla writ. State v. Villegas, (Tex.

App.- Dallas 2013) LEXIS 15096 (Unpublished opinion).



                                     ANALYSIS

      Because the facts are uncontested in this case and there are no findings of

fact or conclusions of law, Appellant believes a de novo review is appropriate. The

first part of Strickland requires counsel's performance to be deficient. In this case,

the trial attorney filed no pre-trial motions other than a motion to withdraw on June

5, 2012 because "Defendant is unable to pay for services." CR 25. The motion to

withdraw was withdrawn on Jun 29, 2012 and the case was set for a guilty plea on

August 9, 2012. CR 28. The probable cause affidavit states that Appellant agreed

to a blood draw and "Officer Dominguez brought his trainee (Fuggit) to the
                                           6
hospital to have him do a blood draw." CR 5. Despite their being a blood draw by a

"trainee", no motions requesting discovery on blood evidence were filed. The

chain of custody was never checked. In fact, the results of the blood draw are not

part of the court's record.

      Despite being aware that his client was represented by immigration counsel,

the trial attorney did not communicate with him regarding the immigration

consequences of a plea. RR II 60. And the trial attorney conceded that he did not

advise Appellant that a DWI conviction would make him ineligible for DACA. RR

II 57-58. Appellant never received any legal advice from his trial attorney

regarding the immigration impact a DWI conviction would have. The lack of a

vigorous defense combined with the enormous immigration consequences that a

DWI carried show the trial attorney's representation was deficient.

      Although the court did provide a generic written admonishment that a

conviction "may result in deportation", the Fifth Circuit recently stated that even a

strong judicial admonishment that deportation is "likely" is not enough to satisfy

the Padilla requirements. US v. Batamula, 788 F.3d 166, 172 (5th Cir. Tex. 2015)

("Given the Court's repeated emphasis on the paramount importance of providing

effective representation and competent advice regarding the immigration

consequences of conviction before entry of the defendant's guilty plea, we cannot

conclude that the prejudice caused by a violation of that duty can be categorically
                                         7
erased by a judge's general and laconic statement during the plea colloquy that

deportation is "likely", after that bargaining process is complete, and immediately

prior to the court's acceptance of the guilty plea."). Defense counsel in a criminal

case where the client is not a citizen of the US has an affirmative duty to advise his

client as to the immigration consequences of a conviction. This was not done.

      The second Strickland prong requires that there is a reasonable probability,

one sufficient to undermine confidence in the result, that the outcome would have

been different but for his counsel's perfonnance. Appellant must prove by a

preponderance that but for counsel's errors, he would not have plead guilty. Ex

parte Ali 368 S.W.3d at 835. This requires proof that a decision to reject a plea

bargain was rational under the circumstances. Ex parte Harrington, 310 S.W.3d

452, 458 (Tex. Crim. App. 2010).

      Appellant applied for DACA while this proceeding was pending and was

denied because of his DWI conviction. CR 63-67. As those records note, US

Citizenship and Immigration Services sent him a notice of intent to deny based on

his DWI conviction. Appellant is a high school graduate that came to the US when

he was 1 year old. If not for this conviction, Appellant would qualify for an

immigration program that would have enabled him to receive a work permit, a

social security number, and a reprieve from deportation. He would be able to work

in any job he wanted. He could go to college. Most importantly, he could stay here
                                          8
with his US citizen children.

      Appellant's decision to plead guilty to a DWI charge would have been

completely irrational if he was aware of the immigration consequences. Because of

the immigration consequences of this plea, Appellant had to fight his deportation in

immigration court and eventually appeal that decision all the way to the Fifth

Circuit of the United States. CR 50-52. That appeal was denied and now Appellant

faces imminent deportation from the United States.

      If Appellant was able to fight and win his DWI case- or at the very least

negotiate a plea bargain involving a non-DWI conviction that left him eligible for

DACA -Appellant would have saved thousands of dollars in legal expenses along

with the stress, hassle, time and effort involved in a long, draw out immigration

proceeding. Further, if Appellant had taken the case to trial, he was likely to

receive probation even if he was convicted. This was Appellant's first an-est. He

had no prior criminal history and is a high school graduate with three children. The

plea bargain gained him virtually nothing. In fact, Appellant's plea only seems

rational if he believed that the DWI would have no impact on his immigration case.

In that situation, it would be rational to conserve resources in his criminal case that

he could use for his immigration case. Unfortunately, because he was not advised

of the immigration consequences of his plea, he was not aware of the program for

so-called "Dreamers" that had been recently enacted. This lack of good legal
                                          9
advice denied him an opportunity to benefit from this life changing program that

would prevent his deportation.

      Finally, a DWI is a Class B misdemeanor punishable by a maximum of 180

days in jail. This is not a case where the consequences of losing at trial were

extreme and a Defendant made a rational choice in accepting the collateral

consequences of a conviction to avoid a lengthy jail sentence. This is a case where

the immigration consequences seem extreme in light of the relatively minor nature

of the criminal charges. But that is the very crux of the claim under Padilla. A

rational person who had been properly advised of the immigration consequences of

this plea bargain would not have accepted the offer.


                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

sustain his point of error, reverse the trial court's denial of the writ, and render

judgment granting Appellant a new trial.




                                                   Jos "Chito" VD<l.O._....,
                                                   Walker Gates Vela PLLC
                                                   505 E Huntland Dr, Ste 300
                                                   Austin, Texas 78752



                                           10
                         CERTIFICATE OF SERVICE

      This is to certify that the above Appellant's brief has been served on the

State's attorney by faxing a copy to Stephen MmTis, Assistant Bell County

Attorney, to the fax number 254-933-5150 on this 28th day o




                       CERTIFICATE OF COMPLIANCE


      This is to ce1iify that the above Appellant's brief complies with the length

requirements of TEX. R. APP. PROC. 9(i)(2) because it con · s   73 7




                                        11
