ACCEPTED
12-14-00107-cr
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/5/2015 3:31:43 PM
CATHY LUSK
CLERK
No. 12-14-00107-CR
IN THE COURT OF APPEALS FOR THE FILED IN
12th COURT OF APPEALS
12TH JUDICIAL DISTRICT OF TEXAS AT TYLER TYLER, TEXAS
1/5/2015 3:31:43 PM
CATHY S. LUSK
JULIO SAUCEDO, Clerk
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
__________________________________________________________________
APPELLEE’S BRIEF
__________________________________________________________________
FROM THE 145H JUDICIAL DISTRICT COURT
NACOGDOCHES COUNTY, TEXAS
THE HONORABLE CAMPBELL COX, PRESIDING
TRIAL CAUSE NUMBER F10816-2002
Respectfully submitted,
NICOLE D LOSTRACCO
District Attorney
Oral argument is requested, Nacogdoches County, Texas
but only if Appellant is also State Bar No. 00792906
requesting oral argument. 101 West Main Street
Nacogdoches, Texas 75961
Phone: (936) 560-7766
FAX: (936) 560-6036
IDENTITY OF PARTIES & COUNSEL
Appellant ................................................................. JULIO SAUCEDO
Alex Luna
TRIAL COUNSEL
Charles Banker
APPELLATE COUNSEL
Appellee ................................................................... THE STATE OF TEXAS
Nicole D LoStracco
TRIAL AND APPELLATE
COUNSEL
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF THE CASE ..................................................................................2
ISSUE PRESENTED .................................................................................................3
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF THE STATE’S ARGUMENT .......................................................4
STATE’S RESPONSE TO APPELLANT’S ARGUMENT .....................................5
A. STANDARD OF REVIEW ........................................................................5
B. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE .........5
PRAYER ....................................................................................................................6
CERTIFICATE OF SERVICE ..................................................................................7
CERTIFICATE OF COMPLIANCE ......................................................................... 8
iii
INDEX OF AUTHORITIES
STATE CASES PAGE
Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) ..........................5
iv
No. 12-14-00107-CR
IN THE COURT OF APPEALS FOR THE
12TH JUDICIAL DISTRICT OF TEXAS AT TYLER
JULIO SAUCEDO,
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
__________________________________________________________________
APPELLEE’S BRIEF
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellee, the State of Texas, by and through the
undersigned Assistant District Attorney, and respectfully submits this brief in
response to Appellant, Julio Saucedo, pursuant to TEX. R. APP. P. 38, urging the
Court to overrule Appellant’s alleged points of error and affirm the judgment and
sentence of the trial court in the above-numbered cause.
1
STATEMENT OF THE CASE
On December 13, 2002, Julio Saucedo, was indicted for the second degree
felony offense of Possession of Marijuana, committed on or about November 18,
2002. (CR page 6) Appellant entered his plea of guilty to the lesser included
offense of third degree felony Possession of Marijuana on January 31, 2003. (CR
page 7-15) Appellant received 8 years deferred probation, a fine of $2500,
restitution in the amount of $140 and 400 hours of Community Service. (Id.) On
May 10, 2007, counsel for Appellant filed a Motion for Early Termination of
Deferred Adjudication Probation. (CR pages 23-25) On July 5, 2007, the trial court
granted the request and discharged Appellant from deferred and dismissed the
indictment. (CR page 26) On March 18, 2013, Appellant filed an Application for
Writ of Habeas Corpus. (CR pages 27-46) The writ argued ineffective assistance of
counsel and an involuntary plea based on Appellant’s immigration issues. (CR
page 29) On March 21, 2003, the trial court determined that the issues needed to be
resolved (CR page 47) and ordered Appellant’s trial counsel, Alex Luna, to
provide the trial court with an affidavit addressing the advice given to Appellant
concerning deportation with regards to his plea. (CR page 48) On May 2, 2013,
The trial court denied the Application for Writ based upon the affidavit supplied by
Mr. Luna. (CR pages 50-55) On May 13, 2013, the trial court received notice from
the Texas Court of Criminal Appeals that the Writ was being returned to the trial
2
court for lack of jurisdiction. (CR page 56) On April 2, 2014, Appellant filed a
Motion to Reconsider the Order Denying the Writ. (CR page 60) On April 4, 2014,
the trial court issued an order again Denying the Application for Writ. (CR page
76) On April 16, 2014, Appellant filed a Notice of Appeal. (CR pages 82-83)
ISSUE #1 PRESENTED BY APPELLANT
Did Appellant’s trial counsel fail to advise him of the consequences of his
plea in regards to deportation, which rendered his plea involuntary?
ISSUE #2 PRESENTED BY APPELLANT
Can Padilla be applied retroactively?
ISSUE #3 PRESENTED BY APPELLANT
Was Appellant affirmatively misled by his trial counsel?
STATEMENT OF FACTS
The State is unable to provide nor oppose most of the Statement of Facts as
alleged by Appellant. No trial was ever had in the matter, so there is no reporters
record from which to glean the facts behind the decision by law enforcement to
charge Appellant with Possession of Marijuana. The sole account of what
happened belongs to the wife of Appellant and is found in her affidavit. It must be
3
left to this honorable Court to determine the credibility of her allegations. Those
facts which can be relied upon and which are backed up with documentary proof
are those already presented in the State’s Statement of the Case. The accounts of
what took place during the discussions between Appellant’s trial counsel, Alex
Luna, and Appellant are completely contradictory. Appellant, his son-in-law and
his wife, argue that immigration consequences were never discussed. Trial counsel,
Alex Luna, via his affidavit, insists that it was discussed and Appellant chose to
risk deportation over a prison sentence.
SUMMARY OF THE STATE’S ARGUMENT
Appellant presented three issues in his brief. However, it is the State’s
contention that none of the issues presented were actually appropriate. The issue
that should have been presented is whether or not the trial court abused its
discretion in denying the writ.
In reviewing the facts in the light most favorable to the trial court’s decision,
it is clear that the trial court did not abuse its discretion, and therefore, the ruling
should be upheld.
4
STATE’S RESPONSE TO APPELLANT’S ARGUMENT
A. Abuse of Discretion Standard of Review
When assessing the appropriateness of a trial court’s denial of habeas corpus
relief, an appellate court utilizes the abuse of discretion standard of review. Ex
parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) As such, the facts must
be reviewed in the light most favorable to the ruling of the trial court. Id. The
ruling is to be upheld absent a finding of an abuse of discretion. Id. Almost total
deference must be given to the trial courts determination. Id. Furthermore, the trial
court may chose to accept or reject the testimony of any witness in a matter. Id at
819.
B. Application of the Law to the Facts of this Case
In this matter, the trial court made its decision to deny the writ filed by
Appellant based upon an affidavit supplied by trial counsel, Alex Luna. In his
affidavit, Mr. Luna states that he fully discussed the case with Appellant, along
with the fact that the plea would result in Appellant being deported and refused re-
entry into the United States. (CR page 53-54) While Appellant had supplied an
affidavit of his own, contradicting Mr. Luna’s account in his application, it is
5
apparent from reading the Findings of Fact and Conclusions of Law made by the
trial court (CR page 77) that the trial court chose to believe Mr. Luna’s affidavit
and discounted the affidavits of Appellant and his family.
The actions taken by the trial court were in no way improper. As such, there
should be no finding that the trial court abused its discretion when it denied
Appellants request for habeas relief.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the undersigned counsel for
the State of Texas respectfully requests and prays that this Honorable Court
overrule Appellant’s Points of Error and affirm the judgment sentence of the 145th
District Court, Nacogdoches County, Texas, in this case.
Respectfully submitted,
NICOLE D LOSTRACCO
District Attorney
Nacogdoches County, Texas
State Bar No. 00792906
101 West Main Street, Ste. 250
Nacogdoches, TX 75961
Phone: (936) 560-7766
FAX: (936) 560-6036
6
CERTIFICATE OF SERVICE
A true copy of the State’s brief has been served on counsel for Appellant,
Dean Watts, on this, the 5th day of January, 2015.
Nicole D LoStracco
7
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
brief contains 993 words—excluding the caption, identity of parties, table of
contents, index of authorities, signature, proof of service, certification, and
certificate of compliance. This is a computer-generated document created in
Microsoft Word, using 14-point typeface for all text. In making this certificate of
compliance, I am relying on the word count provided by the software used to
prepare the document.
Nicole D LoStracco
8
Julio Saucedo v. State
Combined Opinion