                                                                                                    ACCEPTED
                                                                                                13-14-00441-CR
                                                                                THIRTEENTH COURT OF APPEALS
        FILED                                                                          CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                               5/15/2015 3:54:58 PM
        CORPUS CHRISTI                                                                        DORIAN RAMIREZ
                                                                                                         CLERK
         05/15/15
DORIAN E. RAMIREZ, CLERK
                                           No. 13-14-00441-CR
BY cholloway
                                     IN THE COURT OF APPEALS RECEIVED IN
                                                            13th COURT OF APPEALS
                               FOR THE THIRTEENTH DISTRICT  OF
                                                         CORPUS  TEXAS
                                                                 CHRISTI/EDINBURG, TEXAS
                                AT CORPUS CHRISTI – EDINBURG,5/15/2015
                                                               TEXAS3:54:58 PM
                                                                   DORIAN E. RAMIREZ
                                                                        Clerk
                                     RENE FRANCISCO AGUILERA,
                                             Appellant

                                                    v.

                                            STATE OF TEXAS
                                                Appellee


                                  ON APPEAL FROM THE 206TH DISTRICT COURT
                                         OF HIDALGO COUNTY, TEXAS
                                        CAUSE NO. CR-1836-00-D(1)


                                       APPELLANT’S REPLY BRIEF


                                                     Carlos Moctezuma Garcia
                                                     Texas Bar No. 24065265
                                                     Email: cgarcia@garciagarcialaw.com
                                                     Garcia & Garcia
                                                     Attorneys at Law, P.L.L.C.
                                                     4905-A N. McColl
                                                     McAllen, TX 78504
                                                     Tel: (956) 630-3889
                                                     Fax: (956) 630-3899
                                                     Attorney for Appellant




                                     ORAL ARGUMENT REQUESTED


                                                     1
                               LIST OF PARTIES

Appellant
Rene Francisco Aguilera

Appellee
The State of Texas

Appellant’s Counsel at Trial              State’s Attorney at Trial

Carlos Moctezuma Garcia                   Mr. Rene Guerra
SBOT: 24065265                            District Attorney
                                          SBOT: 08578200
Garcia & Garcia
Attorneys at Law, P.L.L.C.                Mr. Michael Morris
4905-A N. McColl                          Assistant District Attorney
McAllen, Texas 78504                      SBOT: 24076880

                                          Hidalgo County District Attorney
                                          100 N. Closner, 3rd Floor
                                          Edinburg, Texas 78539



Appellant’s Attorney on Appeal            State’s Attorney on Appeal
Carlos Moctezuma Garcia                   Mr. Michael W. Morris
SBOT: 24065265                            Assistant District Attorney
                                          SBOT: 24076880
Garcia & Garcia
Attorneys at Law, P.L.L.C.                Office of Criminal District Attorney
4905-A N. McColl                          Hidalgo County Courthouse
McAllen, Texas 78504                      100 N. Closner
                                          Edinburg, Texas 78539




                                      2
                                         TABLE OF CONTENTS

LIST OF PARTIES................................................................................................... 2

TABLE OF CONTENTS ......................................................................................... 3

TABLE OF AUTHORITIES .................................................................................... 4

ARGUMENT............................................................................................................ 6

    I. THE APPELLEE’S ARGUMENT THAT THE TRIAL COURT DID NOT
    ABUSE ITS DISCRETION IGNORES THE TRIAL COURT’S STATED
    REASONS FOR DENYING THE WRIT. .......................................................... 6

         A. Appellee’s attempt to distinguish the applicable case law based on the
         procedures mandated by the Article 11.07 versus Article 11.072 of the Texas
         Code of Criminal Procedure are not material................................................. 6

         B. Appellee’s insistence that the Trial Court is entitled to rely on
         credibility ignores other evidence in the record that point to actual
         innocence........................................................................................................ 7

    II. APPELLEE’S ASSERTION THAT A RECANTATION IS NOT NEW
    EVIDENCE HAS NO LEGAL SUPPORT....................................................... 10

    III. APPELLEE’S INTERPRETATION OF SCHLUP IS NOT SUPPORTED
    BY THE APPLICABLE CASE LAW. ............................................................. 12

    IV. THE CREDIBILITY OF SUSAN MILLER’S TESTIMONY IS NOT
    DISPOSITIVE OF WHETHER APPLICANT RECEIVED HIS
    CONSTITUTIONAL RIGHT TO COMPETENT COUNSEL......................... 13

    V. APPELLEE’S CLAIM THAT PETITIONER’S COUNSEL OF RECORD
    WAS NOT REQUIRED TO ADVISE HIM OF THE CONSEQUENCE OF
    HIS PLEA CANNOT SUPPORT THE GREAT WEIGHT OF CONTRARY
    AUTHORITY.................................................................................................... 14

    VI. CONCLUSION AND PRAYER................................................................ 16

CERTIFICATE OF SERVICE ............................................................................... 18

CERTIFICATE OF COMPLIANCE...................................................................... 18

                                                            3
                                 TABLE OF AUTHORITIES

Cases

Brady v. State, 771 S.W.2d 734 (Tex. App. 1989) ................................................. 11

Damron v. State, 570 S.W.2d. 933 (Tex.Crim.App. 1978) .................................... 11

Drew v. State, 743 S.W.2d 207 (Tex.Crim.App. 1987)...................................... 8, 10

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

Ex Parte Garcia, 353 S.W.3d 785 (Tex.Crim.App. 2011) ................................... 7, 8

Ex Parte Harrington, 310 S.W.3d 452 (Tex.Crim.App. 2010) ........................ 13, 15

Ex Parte Jessep, 281 S.W.3d 675 (Tex.App. 2009) ................................................. 9

Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) ................................ 14

Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) .................................... 13

Ex parte Navarijo, 433 S.W.3d 558 (Tex.Crim.App. 2014) ................................ 6, 7

Ex parte Reed, 271 S.W.3d 698 (Tex.Crim.App. 2008)....................................... 6, 7

Ex Parte Reedy, 282 S.W.3d 492 (Tex.Crim.App. 2009) ...................................... 15

Ex Parte Sparks, 206 S.W.3d 680 (Tex.Crim.App. 2006) ....................................... 9

Ex parte Spencer, 337 S.W.3d 869 (Tex.Crim.App. 2011).................................... 10

Ex parte Tuley, 109 S.W.3d 388 (Tex.Crim.App. 2002)........................................ 10

Ex parte Welborn, 785 S.W.2d 391 (Tex.Crim.App. 1990) ................................... 15

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) ..................................... 7, 8

Herrera v. Collins, 506 U.S. 390 (1993) ................................................................ 11

McKittrick v. State, 541 S.W.2d 117 (Tex.Crim.App. 1976) ................................... 7

Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ........... 11, 12


                                                    4
Self v. State, 709 S.W.2d 662 (Tex.Crim.App. 1986)............................................... 8

Statutes

Tex. Health & Safety Code § 481.121.................................................................... 11

Texas Code of Criminal Procedure Article 11.07 .................................................... 6

Texas Code of Criminal Procedure Article 11.072 .................................................. 6

Rules

Texas Rule Appellate Procedure 38.3 ...................................................................... 6




                                                     5
TO THE HONORABLE COURT OF APPEALS:

          Appellant Rene Francisco Aguilera submits this reply to Appellee’s brief

pursuant to Tex. R. App. Proc. 38.3.

                                        ARGUMENT

     I.       THE APPELLEE’S ARGUMENT THAT THE TRIAL COURT
              DID NOT ABUSE ITS DISCRETION IGNORES THE TRIAL
              COURT’S STATED REASONS FOR DENYING THE WRIT.

                A.    Appellee’s attempt to distinguish the applicable case law
                      based on the procedures mandated by the Article 11.07
                      versus Article 11.072 of the Texas Code of Criminal
                      Procedure are not material.

          Appellee states without any citation or explanation, that Appellant cited

cases that are inapplicable to the proceedings based on Art. 11.072 of the Texas

Code of Criminal Procedure. Appellee Brief1 (“AB”) 2. Assuming that Appellee

was referring to the cases Appellant cited regarding the standard of review of fact

determinations, Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App. 2008) and Ex

parte Navarijo, 433 S.W.3d 558, 567 (Tex.Crim.App. 2014), these allegations are

without merit.




1
  For the purposes of citing to the record in this case, the following abbreviations are used. For
citing to the official transcript: TR (Transcript Record).1 (volume of the record): 1 (page
number). Thus TR.1: 1, references Volume 1, page 1 of the appeal record. For citations to the
clerk’s Record: CR (Clerk’s Record) 1 (page number). Thus CR 1, references page 1 of the
Clerk’s Record.


                                                6
         While the distinction between cases arising under articles 11.07 and 11.072

of the Texas Code of Criminal Procedure explained in Ex Parte Garcia, 353

S.W.3d 785, 787-88 (Tex.Crim.App. 2011) and cited by Appellee is correct,

Appellant’s does not cite to Ex parte Reed or Ex parte Navarijo for the purposes

stated by Appellee. Appellant relies on Ex parte Reed and Ex parte Navarijo for

the proposition that a factual determination that is not supported by the record is

not entitled to deference. This is not incongruous with the rule set forth in Ex Parte

Garcia, or Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), nor does it

contradict the precedent of the Court of Criminal Appeals that permit an appellate

court to review whether the facts are supported by the record. See McKittrick v.

State, 541 S.W.2d 117 (Tex.Crim.App. 1976).


               B.    Appellee’s insistence that the Trial Court is entitled to rely
                     on credibility ignores other evidence in the record that point
                     to actual innocence.

         Appellee’s main argument in defense of the Trial Court’s decision denying

Pettioner’s writ is that it was premised on an unassailable credibility determination,

namely that the Trial Court did not believe Petitioner and Lorena Martinez’s

recantation. AB 2-4. The Appellee argues that the Trial Court is the fact finder and

is entitled to make credibility determinations that cannot be refuted upon review.

Id. 3.




                                          7
      At no time, however, does the Appellee consider the stated basis for the

Trial Court’s credibility determination from the findings of fact and conclusions of

law, which clearly state the Trial Court’s factual bases and as well as the reasoning

underlying her conclusions. The Trial Court made the following credibility

findings:

   • The Trial Court found that Appellant’s testimony regarding his actual

      innocence was not credible, “in the face of the offense report submitted into

      evidence in the underlying case.” CR 140.

   • The Trial Court found that Appellant’s testimony regarding whether Mr.

      Singleterry explained the contents of the plea bargain was not credible in

      light of Appellant’s testimony at his plea hearing “which directly

      contradicts” his claim. CR 140.

   • The Trial Court found that Ms. Martinez’s testimony was not credible citing

      Drew v. State, 743 S.W.2d 207, 228 (Tex.Crim.App. 1987). CR 140.

According to the Appellee, under the standard set forth in Guzman v. State and

adopted by Ex Parte Garcia, a reviewing court has no ability to disturb a Trial

Court’s factual finding. This is a misstatement of the applicable law. Neither

precedent cited grants absolute deference to a Trial Court’s holding. Guzman

allows for deference when the credibility determination is supported by the record.

Guzman, 955 S.W.2d at 89. Whether the underlying record supports a credibility


                                         8
determination is a question for the reviewing court. Self v. State, 709 S.W.2d 662,

665 (Tex.Crim.App. 1986). Merely couching the findings of fact as a credibility

determination does not excuse the requirement from Guzman that the record

support the credibility determination.

      Appellant argued in its brief to the Court that the Trial Court’s finding on

Appellant’s credibility is not supported by the evidence in the record and is not

entitled to deference. Appellant argues that the record does not support the Trial

Court’s credibility determinations relying on the Trial Court’s stated bases for its

determinations. This is not a request for a de novo finding of fact, but rather a

request for legal review of the sufficiency of the evidence necessary to support a

finding of fact. See Ex Parte Jessep, 281 S.W.3d 675, 679-80 (Tex.App.

2009)(finding that while challenges to legal sufficiency of evidence are generally

not cognizable on an application for a writ of habeas corpus, an exception exists

for a claim of actual innocence even when the applicant previously pleaded guilty

and confessed, citing Ex Parte Sparks, 206 S.W.3d 680, 683 (Tex.Crim.App.

2006)).

      Appellant is asking to court to evaluate the Trial Court’s stated basis for its

finding of fact, and determine whether this is sufficient to uphold its determination.

Appellant alleges that it is not, because the Trial Court’s reasoning is deeply

flawed. The Trial Court says that because Appellant earlier confessed to a crime,


                                          9
that his later recantation is invalid because of his original confession. Texas courts

have rejected this reasoning. The Trial Court argues that Ms. Martinez is not

credible because she cannot be convicted for recanting her earlier testimony

undermining her later confession. Texas courts have adopted new standards for

evaluating confessions that limit the holding of Drew v. State, 743 S.W.2d 207

(Tex.Crim.App. 1987). See Ex parte Tuley, 109 S.W.3d 388 (Tex.Crim.App.

2002); Ex parte Spencer, 337 S.W.3d 869 (Tex.Crim.App. 2011); Ex parte

Elizondo, 947 S.W.2d 202 (Tex.Crim.App. 1996). Appellee ignores this precedent,

and instead requests that the Court utilize the blanket of deference to a credibility

determination to prevent meaningful review of a fact finding that contained no

reasoning traditionally associated with credibility determinations, but relies simply

upon blind adherence to stare decisis to the prior facts.


     II.   APPELLEE’S ASSERTION THAT A RECANTATION IS NOT
           NEW EVIDENCE HAS NO LEGAL SUPPORT.

      Appellee argues that Appellant produced no new evidence in support of his

claims of actual innocence, because there was no credible supporting evidence to

his recanted confession. AB 5. Appellee’s assertion ignores the new evidence

provided by Appellant’s recantation testimony, together with Ms. Martinez’s

acceptance of responsibility, which is new evidence that permits an evaluation of

the evidence of the other evidence in the record in a new light.


                                          10
      Viewing the evidence that exists for conviction without a confession, as

Appellant has urged, demonstrates that without Appellant’s confession and Ms.

Martinez’s testimony implicating Appellant, the remaining evidence is insufficient

to uphold a conviction.

      In response, Appellee asserts that Appellant would somehow still been

guilty of an offense under Tex. Health & Safety Code § 481.121, because

“[a]ppellant would have had to [sic] been aware that he did not know of the

marijuana in the bedroom.” AB 5. That is a misstatement of the evidence necessary

to sustain a conviction under § 481.121, which requires a Defendant to have

“exercised care, control, and management” over the marijuana. Brady v. State, 771

S.W.2d 734, 735 (Tex. App. 1989). Appellant could not have been found to have

exercised care, control, and management over marijuana that was stored in a

separate room of a house that he did not own, nor did he enjoy exclusive

possession. Damron v. State, 570 S.W.2d. 933, 934 (Tex.Crim.App. 1978).

Appellee incorrectly asserts that without his confession, Appellant would have

nevertheless been found guilty of an offense under § 481.121, which is not true

upon review of the facts of this case.




                                         11
    III.   APPELLEE’S INTERPRETATION OF SCHLUP                           IS   NOT
           SUPPORTED BY THE APPLICABLE CASE LAW.

      Appellee insists that a Schlup claim can only be raised after a prior writ

asserting an actual innocence claim under Herrera v. Collins, 506 U.S. 390 (1993)

has been denied, citing Ex Parte Elizondo, 947 S.W.2d 202, 208 (Tex.Crim.App.

1996), and Ex Parte Franklin, 72 S.W.3d 671, 675 (Tex.Crim.App. 2002). AB 6;

Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Neither Ex

Parte Elizondo nor Ex Parte Franklin can be read for the proposition Appellee

cites. Both of the cases cited distinguish Herrera from Schlup claims referring only

to the types of actual innocence claims presented in the habeas petition. In a

Herrera claim, new exculpatory evidence is presented that does not require proof

of a constitutional violation at trial. Ex Parte Elizondo, 947 S.W.2d at 208; Ex

Parte Franklin, 72 S.W.3d at 675-76. Neither case imposes a requirement that a

Schlup claim be “procedurally barred”, as Appellee claims. Assuming arguendo

that Schlup claims must be otherwise barred, the “bar” at issue is the bar of direct

appeal, not habeas. In this case, Appellant is barred from raising the 6th

Amendment claims on direct appeal because he missed his deadline to appeal his

original conviction. His only vehicle for presenting the otherwise barred 6th

Amendment case is a habeas petition.




                                        12
    IV.    THE CREDIBILITY OF SUSAN MILLER’S TESTIMONY IS
           NOT DISPOSITIVE OF WHETHER APPLICANT RECEIVED
           HIS CONSTITUTIONAL RIGHT TO COMPETENT COUNSEL.

      Appellee argues that the standard of review of mixed questions of fact and

law accord great deference to legal conclusions based on credibility determination.

AB 7. Appellee argues that Appellant’s original trial counsel, Susan Miller offered

credible testimony that Appellant had been admonished of the consequences of his

plea in Spanish. AB 8; CR 139, 142. The mere fact that the Trial Court found this

testimony credible does not limit this Court from determining whether that

evidence, if true, is sufficient to support the Trial Court’s finding that Ms. Miller

complied with her Sixth Amendment duty to provide competent counsel. Ex Parte

Harrington, 310 S.W.3d 452, 458-59 (Tex.Crim.App. 2010). Ineffective assistance

of counsel claims are evaluated under the “totality of the representation” standard,

requiring the reviewing court to “analyze all allegations of deficient performance,

decide whether counsel's conduct was constitutionally deficient, and, if so, then

consider whether those specific deficient acts or omissions, in their totality,

prejudiced the defense.” Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App.

2004).

      Reviewing Ms. Miller’s statements in the most favorable light does not

support a claim that she provided competent counsel. Ms. Miller admits that she

had no knowledge of Appellant’s case, had no file on Appellant’s case, was not


                                         13
previously his attorney of record, could not communicate with Appellant because

of a language barrier, and did not advise him of the consequences of his plea. If

anything finding that Ms. Miller’s statement is credible supports a finding that her

representation was insufficient and incompetent under the Sixth Amendment.

      Appellee’s only reference to credible testimony in support of a finding that

Ms. Miller’s representation met the Sixth Amendment standards is her hearsay

statement that “Mr. Singleterry had admonished Appellant of the consequences of

his plea in Spanish.” AB 8. Appellee does not address whether this is sufficient to

meet the Sixth Amendment right to competent counsel, only that Ms. Miller’s

testimony was credible insofar as she believed that someone had previously

provided him with competent counsel. Nevertheless, Appellee admits that “Ms.

Miller’s duty as Appellant’s counsel was to insure that he was advised of the

consequences of his plea.” AB 8. In light of her own admission that she had no

personal knowledge of whether this was actually done, her credible testimony is

not dispositive of the Appellant’s Sixth Amendment arguments.


    V.     APPELLEE’S CLAIM THAT PETITIONER’S COUNSEL OF
           RECORD WAS NOT REQUIRED TO ADVISE HIM OF THE
           CONSEQUENCE OF HIS PLEA CANNOT SUPPORT THE
           GREAT WEIGHT OF CONTRARY AUTHORITY.

      Appellee asserts that Ms. Miller had no duty to “personally advise

[Appellant] of the consequences of his plea if another attorney representing


                                        14
Appellant did in fact advise him of the consequences.” AB 8. Appellee offers no

authority to support this statement.

      Appellant has already presented the Court with detailed analysis of how Ms.

Miller’s representation was deficient and in violation of the applicable Texas

Disciplinary Rules of Professional Conduct. See also, Ex parte Martinez, 330

S.W.3d 891, 900 (Tex. Crim. App. 2011)(defining deficient representation as

performance “that fell below an objective standard of reasonableness ... under

prevailing professional norms” and according to the necessity of the case.)

      Whether Ms. Miller believed that Appellant had been admonished does not

excuse her from personally confirming with her client that he had been properly

admonished and that he understood what he was about to present to the Trial

Court. Ms. Miller cannot delegate that duty. As the Court of Criminal Appeals

explained,

      [a] criminal-defense attorney ‘must have a firm command of the facts
      of the case’ before he or she may render reasonably effective
      assistance of counsel. Counsel has a duty to provide advice to his
      client about what pleas to enter, and that advice should be informed
      by an adequate investigation of the facts of the case or be based on a
      reasonable decision that investigation was unnecessary. When
      counsel’s representation falls below this standard, it renders any
      resulting guilty plea involuntary.


Ex Parte Harrington, 310 S.W.3d at 458 (citing Ex parte Welborn, 785 S.W.2d

391, 393 (Tex.Crim.App. 1990) and Ex Parte Reedy, 282 S.W.3d 492, 500


                                        15
(Tex.Crim.App. 2009))(emphasis added). Ms. Miller admitted that she did not

know the facts of the case, and could not engage in any reasonable investigation

because she could not communicate with her client.

      If the Court accepts Appellee’s justification of Ms. Miller’s actions, it will

erode the meaning of Sixth Amendment right to competent counsel. Criminal

defense attorneys can always blame the last person to touch the file, or otherwise

delegate their constitutional duty to another attorney. Lost in the resulting finger-

pointing is the harm to the criminal defendant, who like Appellant in this case,

neither has sufficient command of the English language, and as an immigrant, is

unfamiliar with U.S. institutions and our constitution. Such as result is an

unacceptable interpretation of a criminal defendant’s constitutional rights and must

be rejected by this Court.


    VI.    CONCLUSION AND PRAYER

      Appellee requests that the Court uphold the Trial Court on the theory that all

of the relevant factual findings and legal conclusions were entitled to great

deference as credibility determinations. Additionally, Appellee erroneously states

that Appellant would have been found guilty of the underlying offense even if he

hadn’t confessed guilt. Finally, Appellee asserts that criminal defense attorney can

delegate her duty of investigation and knowledge of the facts of the case. Appellant

urges the Court to reject these erroneous interpretations of applicable law and

                                         16
evaluate whether Appellant received adequate counsel and can be found guilty of a

crime where another person has accepted responsibility.

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

vacate the trial court’s judgment of guilt and grant him a new trial.         In the

alternative, Appellant prays that this Court vacate the trial court’s judgment on his

application for a writ of habeas corpus and remand his case for further

proceedings, or for such relief to which he may be entitled.

                                       Respectfully submitted,

                                       /s/ Carlos Moctezuma García
                                       Carlos Moctezuma García
                                       SBOT: 24065265
                                       Email: cgarcia@garciagarcialaw.com
                                       García & García
                                       Attorneys at Law, P.L.L.C.
                                       4905-A N. McColl
                                       McAllen, TX 78504
                                       Tel: (956) 630-3889
                                       Fax: (956) 630-3899

                                       Attorneys for Appellant




                                         17
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing brief was served

on the Hidalgo County District Attorney by e-filing notification on April 9, 2015.


                                        /s/ Carlos M. García
                                        Carlos M. García


                      CERTIFICATE OF COMPLIANCE
      I hereby certify that this brief complies with the Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 2,550
words, including headers and footers.
                                        /s/ Carlos M. García
                                        Carlos M. García




                                         18
