                                                                                      ACCEPTED
                                                                                 13-14-00441-CR
                                                                   THIRTEENTH COURT OF APPEALS
                                                                         CORPUS CHRISTI, TEXAS
                                                                           3/20/2015 10:38:59 PM
                                                                                DORIAN RAMIREZ
                                                                                          CLERK

                         CAUSE NO. 13-14-00441-CR

                    IN THE COURT OF APPEALS        FILED IN
                                           13th COURT OF APPEALS
          FOR THE THIRTEENTH SUPREME JUDICIAL     DITRICT
                                        CORPUS CHRISTI/EDINBURG, TEXAS
                     CORPUS CHRISTI, TEXAS 3/20/2015 10:38:59 PM
                                                   DORIAN E. RAMIREZ
               RENE FRANCISCO AGUILERA.,       APPELLANTClerk


                                    V.

                     THE STATE OF TEXAS, APPELLEE


        APPEAL OF TRIAL COURT CASE NO. CR-1836-00-D(1)
  FROM THE 206TH JUDICIAL DISTRICT OF HIDALGO COUNTY, TEXAS
              The Honorable Rose Guerra Reyna, Presiding


                       BRIEF OF STATE/APPELLEE


                                  RICARDO RODRIGUEZ, JR.
                                  CRIMINAL DISTRICT ATTORNEY
                                  HIDALGO COUNTY TEXAS

                                  MICHAEL W. MORRIS, ASSISTANT
                                  State Bar No. 24076880
                                  Lead Counsel for Appellee

                                  Office of Criminal District Attorney
                                  Hidalgo County Courthouse
                                  100 N. Closer Blvd.
                                  Edinburg, Texas 78539
                                  Telephone: (956) 318-2300 ext. 781
                                  Telefax:     (956) 380-0407

                                  ATTORNEYS FOR THE STATE

Oral argument is not requested

                                    i
                 IDENTITY OF PARTIES AND COUNSEL

      APPELLANT in this case is Rene Francisco Aguilera.

      APPELLANT is represented on appeal by Hon. Carlos M. Garcia, 320 W.

Pecan Blvd., McAllen, Texas 78501.

      APPELLANT was represented during the application for writ of habeas

corpus by Hon. Carlos M. Garcia, 300 E. Pecan Blvd., McAllen, Texas 78501.

      APPELLEE in this case is the State of Texas, by and through her District

Attorney for Hidalgo County, the Hon. Ricardo Rodriguez, Jr., Office of Criminal

District Attorney, Hidalgo County Courthouse, 100 N. Closner Blvd., Edinburg,

Texas 78539.

      APPELLEE is represented on appeal by Hon. Michael W. Morris, Assistant

District Attorney for Hidalgo County, Hidalgo County Courthouse, 100 N. Closner

Blvd., Edinburg, Texas 78539.

      APPELLEE was represented application for writ of habeas corpus by Hon.

Michael W. Morris, Assistant District Attorney for Hidalgo County, Hidalgo

County Courthouse, 100 N. Closner Blvd., Edinburg, Texas 78539.




                                       ii
                                                TABLE OF CONTENTS


Identification of Counsel and Parties ................................................................... ii

Table of Contents ................................................................................................ iii

Index of Authorities ............................................................................................ iv

Notation as to Citation ........................................................................................ vi

Statement of the Case......................................................................................... vii

Issues Presented (Restated) ................................................................................ vii

Note as to Oral Argument .................................................................................. vii

Statement of Facts .................................................................................................1

Summary of the Argument....................................................................................1

Argument...............................................................................................................1

I.         The Trial Court did not abuse its discretion in denying
           Appellant’s writ application ....................................................................2

      A. Credibility determinations of Appellant and his common law
         wife ...........................................................................................................2

      B.     Actual innocence - Herrera ....................................................................5

      C.     Actual Innocence - Schlup .....................................................................6

II.        Ineffective Assistance of Counsel ............................................................6

Prayer for Relief ................................................................................................. 10

Certificate of Compliance .................................................................................. 11

Certificate of Delivery ....................................................................................... 12
                                                              iii
                                  INDEX OF AUTHORITIES

                                                  Cases

Drew v State, 743S.W.2d 207 (Tex Crim. App. 1987) ........................................3

Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013) ............. 3, 4, 6

Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) .......................... 10

Ex parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002) ....................... 11, 12

Ex parte Garcia, 353 S.W.3d 785 (Tex. Crim. App. 2011) ................................4

Ex parte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014) ..............................8

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ............................... 10

Herrera v. Collins, 506 U.S. 390 (U.S. 1993) .....................................................9

Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh'g) ......................... 9, 10, 11

Moore v. State, 694 S.W.2d 528 (Tex. Crim. App. 1985) ...................... 9. 10, 11

Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) ...................................................4

Pipkin v. State,
935 S.W.2d 213 (Tex. App. - Amarillo 1996, pet. ref'd) ............................ 4, 5, 7

Schlup v. Delo, 513 U.S. 298 (1995) ....................................................................2

Strickland v. Washington, 466 U.S. 668 (1984) ......................................... 3, 4, 5

Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) ........................... 10


                                                     iv
                                            Statutes and Rules

TEX. CODE CRIM. PROC. Art. 11.07 (2013) ...................................................... 2, 3

TEX. CODE CRIM. PROC. Art. 11.072 (2013) .................................................... 2, 3

TEX. CODE CRIM. PROC. Art. 12.01 (2013) ...........................................................4

TEX. R. APP. P. 33.1(a)(2013) ...............................................................................6




                                                        v
                        NOTATION AS TO CITATION

Citation to the record of the case below will be as follows:

   1. Citation to the three volume Reporter’s Record (RR) and the one volume

      Supplemental Reporter’ Record (SRR) will be to volume and page, e.g., “2

      RR 12” refers to page twelve of volume two of the Reporter’s Record.

         a. Citation to State’s exhibits will be to volume and exhibit, e.g., “3 RR

             SX 5” refers to State’s exhibit five found within volume three of the

             Reporters Record.

   2. Citation to the single-volume Clerk’s Record (CR) will be to page only, e.g.,

      “CR 015” refers to page 15 of the Clerk’s Record.

   3. Citation to Appellant’s Brief (AB) will be to page only, e.g., “AB at 6”

      refers to page 6 of the Appellant’s Brief.




                                          vi
                         STATEMENT OF THE CASE

      The State adopts Appellant’s Statement of the Case.



                              ISSUES PRESENTED

      I.     The Trial Court did not abuse its discretion in finding that Appellant
             did not prevail on his claim of actual innocence

      II.    The Trial Court did not abuse its discretion in finding that Appellant
             did not prevail on his claim of ineffective assistance of counsel.


                      NOTE AS TO ORAL ARGUMENT

      The State of Texas respectfully submits that oral argument in the case at bar

would not serve to enlighten the Court further, because the facts and legal

arguments are adequately presented in the briefs and record. The State respectfully

submits that oral argument in the instant case is not necessary and should therefore

be denied.

      The State reserves the right to present oral argument should the Court grant

oral argument.




                                         vii
                           STATEMENT OF FACTS

      The State generally adopts Appellant’s Statement of Facts.

                      SUMMARY OF THE ARGUMENT

      The Trial Court was free to assess the credibility of Appellant and Ms.

Lorena Martinez; said credibility determination was sole within the discretion of

the Trial Court. As such, Appellant has failed to show that the Trial Court abused

its discretion in denying his claim of actual Innocence under Ex Parte Elizondo/

Herrera. Further, there is no freestanding Schlup actual innocence claim.

      The trial court did not abuse its discretion in denying Appellant’s claim that

his trial counsel rendered ineffective assistance of counsel. Appellant was advised

of the consequences of his plea by his attorney Luis Singleterry and cannot show

that he received deficient performance when his trial counsel Susan Miller did not

repeat the admonishments. Further, Appellant was properly admonished by the

Court and cannot show harm even if counsel was deficient.




                                         1
                                       ARGUMENT

     I.    The Trial Court did not abuse its discretion in denying Appellant’s
           writ application.

           A. Credibility determinations of Appellant and his common law wife.

       In his first two issues Appellant alleges that the Trial Court abused its

discretion in finding the testimony of Appellant and his common law wife, Lorena

Martinez, not credible. However, Appellant misunderstands the applicable law.

The cases Appellant cites for the proposition that the credibility determinations in a

writ of habeas corpus proceeding as subject to review are proceedings under article

11.07 of the Texas Code of Criminal Procedure. See AB at 19-20,

       Appellant received a suspended sentence and was placed on community

supervision. CR 6. Appellant’s application for writ of habeas corpus was filed

under Article 11.072 of the Code of Criminal Procedure1. CR 14, 82, 91. The trial

court acts as the factfinder in applications for writ of habeas corpus filed under art.

11.072 of the Code of Criminal Procedure; the trial court merely makes findings

and recommendations to the Court of Criminal Appeals in applications filed under

art. 11.07 of the Code of Criminal Procedure. Compare TEX. CODE CRIM. PROC.

11.072 §7(a); TEX. CODE CRIM. PROC. 11.07 § 5. As such, the case law explaining

the role of the trial court in proceedings under art.11.07 of the code of criminal


1
 All references to the code of criminal procedure reference the Texas Code of Criminal
Procedure unless otherwise noted.
                                               2
procedure are not necessarily binding for those under 11.072. The Court of

Criminal Appeals has noted the difference between the art. 11.072 and art 11.07 of

the code of criminal procedure. In Ex parte Garcia, the Court of Criminal

Appeals noted that while it is the ultimate factfinder for purposes of applications

filed under art. 11.07, it is sitting as a true appellate court in the 11.072 context.

353 S.W.3d 785, 787-88 (Tex. Crim. App. 2011). As such, the Trial Court is the

sole finder of fact in the 11.072 context. Id.

       A trial court is free to believe all, some, or none of a witness's testimony; the

trial court is free to disbelieve a witness’s testimony even if that testimony is

uncontroverted. When acting as the sole and exclusive fact finder, the trial court is

likewise the sole judge as to the credibility of the witnesses and the weight to be

given their testimony. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997).2    The Trial Court’s credibility determinations were made after live

testimony in which the Court was able to observe the demeanor of the witness and

the content of the testimony. See 2 RR passim. In determining the credibility of a

recanting witness, the prior testimony or statement must be weighed against the

new testimony. Further, it is always a situation where a witness is stating “I lied

before, but believe me now.”



2
 In Ex parte Garcia, the Texas Court of Criminal Appeals determined that the Guzman standard
of deference applied in 11.072 context. Garcia 353 S.W.3d at 788.
                                             3
       Appellant is incorrect that Drew v. State is inapposite. Ms. Martinez was not

convicted of the same crime, but was charged with and later had an Order Barring

Offense signed for the same conduct.3               Further, the statute of limitations for

possession of marijuana is three years. See TEX. CODE CRIM. PROC. art. 12.01(7).

The Order Barring Offense in Ms. Martinez’s case was signed June 15, 2001. 3

RR SX5. Any tolling provided by the indictment filed by the State would also

have terminated at that time. Clearly, more than the three years have passed

between the entry of the Order Barring Offense and Ms. Martinez’s recantation and

acceptance of responsibility.         Therefore, she does not subject herself to any

criminal liability in claiming the marijuana in question was in her sole possession.

Therefore, under Drew v State, 743S.W.2d 207, 288 (Tex Crim. App. 1987), the

Court correctly viewed her testimony with skepticism. 4

       Appellant cannot show that the Trial Court’s determination of credibility

was an abuse of discretion.




3
 In said order, the Trial Court stated that it was considering the barred cause as an unadjudicated
offense in another cause number. See 3 RR SX 5.
4
  Appellant’s argument that Drew has somehow been supplanted by the actual innocence case
law flowing from Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) is also without
merit. The fact that the Texas Court of Criminal Appeals has stated that recantation testimony if
found credible can be the basis for a claim of actual innocence does not diminish the logic
espoused in Drew that testimony from an accomplice that exonerates a defendant without
exposing the accomplice to further criminal liability is to be viewed with suspicion. Drew,
743S.W.2d at 288.
                                                4
         B. Actual innocence - Herrera

      In his second ground, Appellant alleges that the Trial Court abused its

discretion when it denied his actual innocence claim. AB at 27. This claim is

premised off his faulty assertion that the testimony of Appellant and Ms. Martinez

must have been credible. As the State contends above, this is not so; the Trial

Court specifically found that the testimony was not credible. Without credible

testimony rebutting Appellant’s confession in his statement, there is no newly

discovered evidence that provides clear and convincing evidence that Appellant is

actually innocent. See Elizondo, 947 S.W.2d at 209; Herrera v. Collins, 506 U.S.

390 (U.S. 1993).    Further, at least as to the evidence provided by Appellant

himself, it cannot have been “newly discovered”; Appellant would have had to

been aware that he did not know of the marijuana in the bedroom. The evidence

adduced from Appellant’s wife, even if it was to be believed, hardly amounts to

clear and convincing evidence in light of the admission of guilt in Appellant’s

statement and his judicial confession. See 2 RR15-17; Ex parte Harleston, 431

S.W.3d 67, 91-92 (Tex. Crim. App. 2014)(Price J. concurring)(“[The] recantation[]

must be so convincing and compelling that [it] produce[s] in our minds the firm

belief or conviction that no reasonable juror, having heard the recantations, would

have relied upon the complaining witness's trial testimony to convict.”).




                                         5
            C. Actual Innocence - Schlup

       In Appellant’s second ground, he also claims that the Trial Court erred by

failing to grant his actual innocence claim based on Schlup v. Delo, 513 U.S. 298

(1995). However, Appellant fails to state that a Schlup actual innocence claim is

merely a gateway to have an otherwise barred claim resurrected and does not

provide affirmative relief itself.       See Elizondo, 947 S.W.2d at 208; Ex parte

Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002). This was Appellant’s first

writ application, and as such, neither his Herrera actual innocence claim nor his

ineffective assistance of counsel claim was procedurally barred. See CR 14, 99,

139, 142.

       Therefore, Appellant does not need to make a Schlup claim to have his

claims heard on the merits and a Schlup claim cannot afford Appellant any relief.

        II.   Ineffective Assistance of Counsel5

       In his third ground, Appellant claims that the trial court erred when it denied

his application for writ of habeas corpus on the grounds that his attorney Susan

Miller provided ineffective assistance of counsel because she did not personally

admonish him of the consequences of his plea.




5
 Appellant alleges additional ground of ineffective counsel in his appellate brief. These claims
were not raised by way of the application for writ of habeas corpus, nor were they raised during
the evidentiary hearing. CR 14- 90; 2 RR passim. As such, the State contends that they were not
preserved and will not address such claims. See Tex. R. App. P. 33.1(a)(2)(A).
                                               6
      A trial court's decision whether to deny or grant an application for habeas

corpus is reviewed under an abuse of discretion standard. Pipkin v. State, 935

S.W.2d 213, 215 (Tex. App. - Amarillo 1996, pet. ref'd). An abuse of discretion

occurs when a trial court acts without reference to any guiding principles or rules.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh'g).

The appellate courts should afford almost total deference to a trial court's

determination of the historical facts that the record supports especially when the

trial court's fact findings are based on an evaluation of credibility and demeanor.

See Guzman, 955 S.W.2d at 89 (Tex. Crim. App. 1997) (quoting Villarreal v.

State, 935 S.W.2d 134, 139-41 (Tex. Crim. App. 1996)(Mansfield J. Concurring).

The appellate courts, including this Court, should afford the same amount of

deference to trial courts' rulings on "application of law to fact questions," also

known as "mixed questions of law and fact," if the resolution of those ultimate

questions turns on an evaluation of credibility and demeanor. Id.

      In a claim for ineffective assistance of counsel, the defendant must show: (1)

his attorney’s representation fell below an objective standard of reasonableness;

and (2) there is a reasonable probability that, but for his attorney’s errors, the result

of the proceeding would have been different. See Strickland v. Washington, 466

U.S. 668, 687 (1984). A defendant has the burden to prove a claim of ineffective

assistance of counsel by a preponderance of the evidence. Moore v. State, 694


                                           7
S.W.2d 528, 531 (Tex. Crim. App. 1985). A defendant’s failure to show either

deficient representation or prejudice will defeat a claim of ineffective assistance of

counsel. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). Nothing

required Ms. Miller to advise Appellant of the consequences of pleading and the

rights that he will be waiving on the record, merely that the act have been

accomplished prior to the plea.

      Here, the trial court found that Ms. Miller provided credible testimony that

Mr. Singleterry had admonished Appellant of the consequences of his plea in

Spanish. See CR 139, 142. Ms. Miller’s duty as Appellant’s counsel was to insure

that he was advised of the consequences of the plea; she was not required to

personally advise him of the consequences if another attorney representing

Appellant did in fact advise him of the consequences. Appellant was so advised by

a competent attorney in Mr. Singleterry. CR 131, 139. This is further supported

by the fact that the plea paperwork was signed by both Appellant and Mr.

Singleterry.   CR 103-06.     Further, Appellant acknowledges that he and Mr.

Singleterry signed the plea admonishment paperwork. 2 RR 12-13. Appellant had

also acknowledged having his rights and the plea admonishments explained at his

plea. CR 60-65. Additionally, Appellant was admonished of the consequences by

the Trial Court. See CR 60-69. As such, Appellant can show neither deficient

performance, nor prejudice.


                                          8
       Appellant cannot show prejudice as he cannot show that but for the claimed

performance, the outcome would have been different. Here Appellant claimed, on

application for writ, that the deficient performance was Ms. Miller’s failure to

explain the consequences of his plea. However, Appellant was informed of the

consequences and the rights he was waiving by the Trial Court and Mr.

Singleterry. CR 60-69; 103-06. Given that Appellant was made aware of the

consequences of his plea; he cannot now claim that knowledge of these

consequences from Ms. Miller would have made him change his plea. Further,

Appellant never testified that he would have changed his plea or that he would

have wanted to go to trial if only some right or consequence had been explained to

him. 6 2 RR 9-14.




6
  The references in Appellant’s application that he would not have plead if Ms. Miller had
advised him of the immigration consequences was not a sworn statement by Appellant. Further,
a sworn statement alone from an applicant is insufficient to support a finding by a trial court.
See Garcia, 353 S.W.3d at 789. Counsel is now required to inform a defendant of the
immigration consequences. See Padilla v. Kentucky, 559 U.S. 356, 367 (U.S. 2010). However,
Padilla is not retroactive. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App.
2013). Appellant plead guilty to this offense nearly 9 years before Padilla was decided. Ms.
Miller was under no duty to inform Applicant of the immigration consequences.
                                               9
                           PRAYER FOR RELIEF

      WHEREFORE, the State of Texas respectfully requests that the Order of the

Trial Court be, in all things, AFFIRMED.


                              Respectfully submitted,

                              RICARDO RODRIGUEZ, JR.
                              CRIMINAL DISTRICT ATTORNEY
                              HIDALGO COUNTY TEXAS


                              __/s/ Michael W. Morris__________
                              Michael W. Morris, Assistant
                              Criminal District Attorney

                              State Bar No. 24076880

                              Office of Criminal District Attorney
                              Hidalgo County Courthouse
                              100 N. Closner Blvd.
                              Edinburg, Texas 78539
                              Telephone: (956) 318-2300 ext. 781
                              Telefax: (956) 380-0407
                              Email: michael.morris@da.co.hidalgo.tx.us

                              ATTORNEYS FOR THE STATE


                              100 N. Closner Blvd.
                              Edinburg, Texas 78539
                              Telephone: (956) 318-2300 ext. 781
                              Telefax:    (956) 380-0407

                              ATTORNEYS FOR THE STATE




                                       10
                           Certificate of Compliance

I hereby certify that this document has the following number of words:

   A. Initial documents—beginning at cover page and ending at Note as to Oral
      Argument: 833 words

   B. Brief:       2378 words


   C. Total:       3211 words


                                Respectfully submitted,


                                __/s/ Michael W. Morris__________
                                Michael W. Morris, Assistant
                                Criminal District Attorney

                                State Bar No. 24076880

                                Office of Criminal District Attorney
                                Hidalgo County Courthouse
                                100 N. Closner Blvd.
                                Edinburg, Texas 78539
                                Telephone: (956) 318-2300 ext. 781
                                Telefax:     (956) 380-0407




                                        11
                        CERTIFICATE OF DELIVERY

      This is to certify that a true and correct copy of the foregoing Brief of

State/Appellee was sent to Appellant’s attorney of record, Carlos M. Garcia

through the electronic filing service on March 20, 2015.




                                      __/s/ Michael W. Morris_______
                                      Michael W. Morris




                                        12
