PD-1277-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
December 29, 2014 Transmitted 12/26/2014 3:43:29 PM
Accepted 12/29/2014 8:30:14 AM
ABEL ACOSTA
NO. PD-1277-14 CLERK
__________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
__________________________________________________________________
THE STATE OF TEXAS,
Respondent,
vs.
REYES, JUAN CARLOS
Petitioner.
______________________________________________
Appeal from the Eighth Court of Appeals
El Paso, Texas
No. 08-12-00261-CR
County Court at Law No. 7
El Paso County, Texas
Trial Court No. 20050C17647-CC7-1
__________________________________________________________________
PETITIONER’S BRIEF ON THE MERITS
__________________________________________________________________
JAMES D. LUCAS
2316 Montana Avenue
El Paso, Texas 79903
Tel: (915) 532-8811
Fax: (915) 532-8807
SBN 12658300
jlucas2@elp.rr.com
Attorney for Petitioner
IDENTITY OF THE PARTIES AND COUNSEL
For Petitioner/Juan Carlos Reyes:
James D. Lucas
Appellate Counsel
2316 Montana Avenue
El Paso, Texas 79903
jlucas2@elp.rr.com
For Respondent:
Lily M. Strout
Asst. District Attorney
El Paso County Courthouse
500 E. San Antonio, Room 201
El Paso, Texas 79901
tdarnold@e[county.com
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
information@spa.texas.gov
Trial Court:
County Court at Law No. 7
Hon. Thomas Spieczny
El Paso County Courthouse
500 E. San Antonio
El Paso, Texas 79901
TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL.....................................................i
TABLE OF CONTENTS.......................................................................................ii, iii
INDEX OF AUTHORITIES............................................................................iv, v, vi
STATEMENT OF THE CASE....................................................................................1
GROUNDS FOR REVIEW........................................................................................2
STATEMENT OF THE FACTS................................................................................3
SUMMARY OF THE ARGUMENT.........................................................................16
ARGUMENT.............................................................................................................19
1. The 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 claims when the trial court
was ordered to only supplement its findings of fact and conclusions of law as
to Reyes’ Padilla claim .................................................................................19
2. The court of appeals 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..................................................24
3. The court of appeals 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...................................27
PRAYER......................................................................................................................33
CERTIFICATE OF SERVICE.................................................................................33
CERTIFICATE OF COMPLIANCE........................................................................34
APPENDIX...............................................................................................................35
INDEX OF AUTHORITIES
FEDERAL CASES PAGES
Castille v. Peoples, 489 U.S. 346, 350 (1989).........................................................26
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)...........................................................25
Padilla v. Kentucky, 559 U.S. 356 (2010)..........................8, 11, 12, 15-27, 28, 29, 33
Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct 2052, 80 L.Ed.2d 674................................................................6, 17, 20, 28
Townsend v. Sain, 372 U.S. 293, at 313 (1963)...................................................25, 27
STATE CASES
Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996)................................31
Ex Parte De Los Reyes, 350 S.W.3d 723 (Tex.App.-El Paso 2011)........................11
Duncan v. Evans, 653 S.W.2d 38 (Tex.Cr.App.1983)..........................................27-28
State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)...........................28, 31
State v. Duran, 396 SW 3d 563 (Tex. Crim.App. 2013)..........................................32
State v Elias, 339 S.W. 3d 667,676 (Tex.Crim.App. 2011)..............20, 21, 24, 28, 31
State v. Gobert, 275 S.W.3d 888, 891-92 & n. 13 (Tex.Crim.App.2009)...............31
Wright v. State, 981 S.W.2d 197, 201 (Tex. Crim. App. 1998)...............................31
RULES
28 U.S.C. § 2254(b)...........................................................................................26, 27
TEX. CODE CRIM. PROC. § 11.072........................................................1, 8, 15, 19, 24
OTHER
Violence Against Women Act (VAWA)....................................................................8
STATEMENT OF THE CASE
Petitioner Juan Carlos Reyes challenges the correctness of the court of appeals’
decision to reverse the trial court’s order which granted Reyes’ relief on his article
11.072 writ application. The trial court held an evidentiary hearing on July 19, 2012
and heard argument on the writ application on August 2, 2012. RR 2, at 5-191; RR 3,
at 12-35. After hearing argument on August 2, 2012, the trial court took the matter
under advisement. RR 3, 33-35. On August 6, 2012, the trial court signed the written
order granting Reyes relief on his application for writ of habeas corpus, and as part
of that written order, issued findings of fact and conclusions of law. CR 130-132. On
August 7, 2012, the trial court entered another written order vacating Reyes’
misdemeanor Assault-Family Violence conviction. CR 129. The State timely filed its
notice of appeal of the trial court’s order granting Reyes’ relief on his article 11.072
application or writ of habeas corpus. CR 136-137. After briefing, the court of appeals
reversed the trial court’s order in a judgment accompanied by a written opinion issued
on June 30, 2014. The court of appeals on August 13, 2014 overruled Reyes’ motion
for rehearing filed on July 30, 2014. This petition for discretionary review follows.
Page 1
GROUNDS FOR REVIEW PRESENTED
1. The 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 claims when the trial court
was ordered to only supplement its findings of fact and conclusions of law as
to Reyes’ Padilla claim
2. The court of appeals 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
3. The court of appeals 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
Page 2
STATEMENT OF FACTS
On February 14, 2006, Petitioner Reyes, a lawful permanent resident alien of
the United States, briefly met his court-appointed attorney at the arraignment pretrial
for the first time. CR 120. The attorney appointed to represent Reyes was appointed
that same day. Id. The attorney appointed to represent Reyes did not discuss the
merits of the case with Reyes at the arraignment, but arranged instead to meet with
Reyes on March 16, 2006. Id. On that date, Reyes court-appointed trial counsel
scheduled Reyes’ case for a guilty plea. Id. On March 30, 2006, Reyes appeared for
the guilty plea hearing and was presented with a written plea agreement offer made
by the State’s prosecuting attorney: In exchange for Reyes’ plea of guilty to the
offense of Assault Family Violence, Reyes was required to agree to be sentenced to
365 days in jail and assessed a $1,000.00 fine, with half the fine and all of the jail
term suspended, provided that Reyes completed a 12 month term of community
supervision. Id.
Based on his trial counsel’s recommendation that Reyes accept the plea bargain
offer, Reyes entered a plea of guilty and was sentenced by the trial court in
accordance with the written plea bargain agreement made by the State. Id. The
criminal information to which Reyes entered a guilty plea alleged in pertinent part
that on or about the 5th day of September, 2005, Applicant Reyes did then and there
Page 3
intentionally, knowingly, and recklessly cause bodily injury to Hilda Maldonado by
(Paragraph A) pushing her about the body with his hand and by (Paragraph B)
striking her about the head with his hand. CR 120-121.
Reyes’ trial counsel did not inform Reyes of the State’s burden of proof
concerning the offense charged or explain to Reyes what elements of the offense the
State would have to prove to convict him of the assault offense alleged in the criminal
information. Id. Reyes’ trial counsel also failed to inform Reyes that “bodily injury”
was an element of the offense and what evidence would be needed to prove that Hilda
Maldonado suffered bodily injury. Id. In addition, Reyes’ trial counsel failed to advise
Reyes of what legal defenses were available to him. Id. Specifically, Reyes’ trial
counsel failed to discuss with Reyes the law of self-defense and how it might apply
under the facts of the case. Id. Nor did Reyes’ trial counsel attempt to ascertain
Reyes’ version of the facts regarding the incident upon which the assault charge was
based or inquire of Reyes whether there were any witnesses to the incident who might
be able to provide favorable testimony for Reyes. Id.
Reyes’ court-appointed trial counsel spent less than about 10 minutes
discussing the case with Reyes, which focused on only whether Reyes should enter
a plea of guilty to the assault charge. Id. In discussing with Reyes, trial counsel
appointed to represent Reyes recommended that he enter a plea of guilty to the Class
Page 4
“A” assault/Family violence charge. Id. Reyes believed his trial counsel knew what
was best for him and therefore he agreed to follow his trial counsel’s
recommendation. Id. On the date of his guilty plea, Reyes was 26 years of age, had
lived in the United States continuously since about 9 years of age and was the father
of three United States children, all of whom lived in the United States. Id. Before
Reyes entered a plea of guilty to the Class “A” assault charge, his trial counsel failed
to advise him of the immigration consequences of entering a guilty plea to the assault
charge. More particularly, Applicant Reyes’ trial counsel failed to inform Reyes that
by pleading guilty to a 365 day jail sentence to the offense of Class “A” Assault, with
a family violence finding, would subject him to removal from the United States. Id.
Reyes asserted in his sworn writ application that if his trial counsel had asked
Reyes to provide his version of the facts, he would have stated that he ceased living
with Hilda Maldonado (hereinafter “Maldonado”) approximately a month before the
September 5, 2005 incident which resulted in his arrest for Assault-Family Violence
upon learning that Maldonado had commenced an affair with another man. CR 121-
122. Reyes further asserted that after leaving Maldonado at the 5832 Harrison Street
address, Reyes moved in with Hector Garcia, his cousin, at an address on Ivanhoe
Street in the east central part of El Paso and that on the date of the incident, Reyes
had picked up his children at the Harrison address and taken them to the Ivanhoe
Page 5
residence, so that they could go swimming in his cousin’s pool. Id. While there,
Maldonado showed up un-announced and was let into the residence by Reyes’ cousin,
Hector Garcia. Maldonado walked into the residence and confronted Reyes in the
kitchen, where she immediately began yelling at Reyes for walking out on her with
their three children and ending their relationship. Id. Maldonado also slapped Reyes
three or four times and begged him to “hit” her. Id. This aggressive conduct by
Maldonado was witnessed both by Juan Carlos Reyes, Jr. and by Angel Reyes, their
two children. At the time, Juan Carlos Reyes was 10 years of age, and Angel was 7
years of age. Id. A witness to Maldonado’s aggressive behavior was Reyes’ cousin,
Hector Garcia, who not only recalls that Maldonado was the aggressor, but that she
attempted to make Reyes’ hit her. Id.
To prevent the situation from escalating, Reyes pushed Maldonado out of the
way so that he could exit the residence. Id. Reyes asked and was given permission
by Hector Garcia to use his vehicle to leave the residence. Id. At no point in the
encounter did Reyes inflict bodily injury on Maldonado, although he sustained bodily
injury from being slapped, without justification, several times by Maldonado. Id. His
decision to push Maldonado was purely an act of self-defense, which became
necessary after the assault she had initiated against him got out of hand and became
violent. Id.
Page 6
Reyes further asserted in his writ application that the State could produce no
photographs which showed that Maldonado was physically injured. Id. Reyes further
asserted that he did not understand the law of self-defense before he entered a plea
of guilty to the assault charge. Id. Reyes did not realize that pursuant to Section 9.31
of the Texas Penal Code he was justified in using force when and to the degree
necessary to repel Maldonado’s use or attempted use of unlawful force against him.
Id. If he had known of this legal defense, Reyes asserted in his writ application that
he would have never entered a plea of guilty to the assault charge pending against
him, but would have instead insisted upon a jury trial at which he would have testified
that he only used such force as was necessary to protect himself against the assault
Maldonado initiated against him. Id.
At the time of his guilty plea, Reyes did not realize that a plea to the Texas
misdemeanor offense of Class “A” Assault, family violence would subject him to
removal from the United States because this conviction represented a crime of moral
turpitude under the Immigration & Nationality Act. CR 123. Reyes also asserted in
his writ that he had no idea that a plea to this offense would carry adverse
immigration consequences and that it would subject him to deportation or removal
from the United States. Id. Further, at the time of his guilty plea, Reyes had never
entered a guilty plea to or been found guilty of any felony offense. Id. Nor had he
Page 7
ever pled guilty to or been convicted of any other offense which would subject him
to deportation or removal from the United States. Id. Reyes asserted in his writ
application that he would never have entered the guilty plea to the Class “A”
assault/family violence charge had he known that it carried potential adverse
immigration consequences. Instead, he asserts that he would have insisted upon a
jury trial of this charge. Id.
On the date of the alleged incident in which Reyes is alleged to have committed
the assault offense, Maldonado was not a legal permanent resident alien of the United
States. Id. After Reyes left her, the only way Maldonado could acquire legal
residence was through the Violence Against Women Act (VAWA). Id. However,
Maldonado’s motive to pursue relief under this Act was never investigated by Reyes’
trial counsel. Id. Since the incident, Maldonado has become a permanent residence
through the VAWA. Id. Prior to pleading guilty to the assault charge, Reyes’ trial
counsel failed to inform Reyes of VAWA and of the fact that the benefit conferred
under this Act provided a motive for Maldonado to insist that Reyes “hit” her on the
date of the incident, as being the victim of an act of violence would and did protect
Maldonado from now having to face the prospect of deportation or removal. Id.
Apart from alleging a Padilla v. Kentucky claim, Reyes asserted the following
additional claims in this article 11.072 writ application: “2. Trial counsel's failure to
Page 8
conduct an independent investigation of the facts of the case deprived Reyes of
effective assistance of counsel since at least three witnesses to the assault could have
provided testimony establishing that it was Hilda Maldonado who assaulted Reyes
and that Reyes’ conduct was justified under the law of self defense; “3. Trial counsel's
failure to advise Reyes concerning the law of ‘self defense’ deprived Reyes of
effective assistance of counsel since Reyes would not have otherwise pled guilty to
the Class ‘A’ assault charge”; and “4. Applicant Reyes’ guilty plea should be vacated
and set aside because it was not knowingly and intentionally made.” CR 36-41.
At the conclusion of the evidentiary hearing on Reyes’ writ application, the
trial court granted relief on Reyes’ writ application and supplied, sua sponte, the
following findings of fact and conclusions of law:
Findings of Fact
1. The Defendant, Juan Carlos Reyes, was born on March 10, 1980.
CR 130.1
2. He has lived continuously in the United States since he was nine
years old and has been a lawful permanent resident. Id.
3. There is no evidence of any criminal history other than this
particular case. Id.
1
Appellee Reyes omits the trial court’s reference to the evidentiary source of its findings
of fact in setting out its findings of fact.
Page 9
4. The Defendant is the father of three children, all born in the
United States. Id.
5. In the present case, the Defendant was charged with Assault
Family Violence because of an incident occurring on or about
September 5, 2005. Id.
6. The incident occurred at the home of Defendant’s cousin Hector
Garcia, when the Defendant’s wife (or ex-wife) Hilda Maldonado
arrived and a confrontation arose between Ms. Maldonado and
the Defendant. Id.
7. Portions, but not the entirety, of that confrontation were witnessed
or overheard by Mr. Garcia and at least two of the Defendant’s
child (Juan Carlos Reyes, Jr., then ten years old and Angel, then
seven years old). Id.
8. There is nothing in the Court’s file to indicate that witness
statements were ever obtained from these individuals and they
testified that they did not speak with the police. However, there
is a supplemental report of Officer 3325 indicating a conversation
with Mr. Garcia wherein he recounted observing some mutual
pushing but stated that he did not want to be involved. Id.
9. The same supplement report indicates photos of the complaining
witness were taken. However, no photos were presented in the
Habeas Proceeding. CR 131.
10. The testimony of Mr. Garcia and the children (who admittedly did
not see everything and who naturally have a motive to support the
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. Id.
11. The criminal charge against the Defendant was resolved quickly.
He met his court-appointed lawyer at this arraignment/pretrial on
February 14, 2006. He had a second meeting on March 16, 2006,
Page 10
and entered a guilty plea on March 30, 2006. 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. Id.
12. The Defendant now claims that his trial counsel did not advise
him of the immigration consequences and did not advise him that
his plea would subject him to removal from the United States. Id.
13. The Defendant did sign plea papers which contain standard
“boiler plate” language which states:
“I further understand that in the event I am not a citizen of the
U.S.A., my plea of guilty may result in deportation, exclusion
from admission to the U.S.A. or denial of naturalization under
federal law.” Id.
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. The Court takes judicial notice of the normal practice
of El Paso County to not make a record of misdemeanor pleas. Id.
Conclusions of Law
1. The Supreme Court decision of Padilla v. Kentucky, 30 S. Ct
1473 (2010) eliminates all ambiguity and holds that a Defendant
must be given a full complete explanation of immigration
consequences in order for a plea to be voluntarily entered. Id.
2. Texas Courts apply Padilla retroactively. Ex Parte De Los Reyes,
350 S.W.3d 723 (Tex. App.–El Paso 2011); ... Id.
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 definitely be advised of
deportation or removal consequences, Aguilar v. State, supra. CR
132.
Page 11
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.
Id.
...
6. The Defendant was prejudiced because he would not have plead
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. Id.
On January 31, 2013, the “State’s Motion to Abate the Appeal and Remand the
Case to the Trial Court for Supplemental Findings of Fact and Conclusions of Law”
was filed. This motion was not served on the trial court. Clerk’s Supplemental
Record, 8. With regard to Reyes’ non-Padilla claims, the State identified on page 7
of its motion to abate four findings of fact which it stated were not, but needed to be
made by the trial court in connection with the prejudice prong of Reyes’ ineffective
assistance writ allegations. (See p. 7 of the State’s motion to abate on file with this
Court). These findings consisted of the following:
* But the trial court failed to make specific fact findings that Reyes
attested that he would have pleaded not guilty and would have insisted
on trial and that the trial court found those attestations to be credible. Id.
* There are, in fact, no factual findings that support the trial court’s
conclusion that Reyes would have pled not guilty had he known of the
immigration consequences of doing so. Id.
* There are, in fact, no factual findings that support the trial court’s
conclusion that Reyes would have pled not guilty had he known of the
Page 12
immigration consequences of doing so. Id.
* The trial court also failed to make specific findings and
conclusions addressing and resolving the State’s argument that any
decision by Reyes to reject the plea bargain and proceed to trial would
not have been objectively rational. Id.
In its motion to abate, the State did not identify any specific findings of
fact relating to the deficiency prong of Reyes’ ineffective assistance claims
which needed to be addressed. (See pp. 1-7 of the motion to abate on file with
this Court). Its motion also does not purport to identify every finding of fact
and conclusion of law which it believes the trial court needs to address. Id.
On February 14, 2013, this Court entered an order granting the State’s motion
to abate and remanding the case to the trial court so that it could provide “missing
findings of fact and conclusions of law.” Apart from granting the State’s motion, the
court of appeals’ supplementation order failed to identify what findings of fact and/or
conclusions of were missing and need to be supplied by the trial court.
On April 29, 2013, the trial court filed a document captioned
“SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW”
(Clerk’s Supplemental Record, 8-9) which stated in relevant part:
On August 6, 2012, this Court filed Findings of Fact and Conclusions
of Law. On January 20, 2013, the State filed a Motion which requested
Supplemental Findings of Fact and Conclusions of Law. That Motion was not
served on this Court. Having recently learned of the Motion, the Court now
supplements its prior Findings and Conclusions:
Page 13
Supplemental Finding of Fact #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.
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. Clerk’s Supplemental Record, 8.
Supplemental Finding of Fact #2
The Court further finds that the Defendant would absolutely positively
NOT have plead guilty if he had been advised that doing so would lead to
deportation. This finding is based on 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). Clerk’s
Supplemental Record, 8.
Supplemental Finding of Fact #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. The Court takes judicial notice of the
following data received from the Office of Court Administration. In 2005 (the
year of Juan Carlos Reyes’ case) there were 1,684 dispositions of Assault
Family Violence cases. There were 603 findings of guilt or guilty pleas and
1,081 findings of not guilty or dismissals. The guilty category included 203
cases of straight probation, 183 cases of deferred adjudication probation, and
only 217 cases with jail sentences. More than half of those jail sentences were
for less than 60 days. This data (which presumably has always been available
to the State) totally undermines the claim that Juan Carlos Reyes had to take
the plea to avoid the harsh consequences of proceeding further through the
judicial process. Clerk’s Supplemental Record, 8-9.
Page 14
Supplemental Finding of Fact #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, that a father of United States citizenship
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 choose to be permanently separated
from them rather than to face the risk of misdemeanor prosecution. Clerk’s
Supplemental Record, 9.
Supplemental Conclusion of Law #1
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....Clerk’s Supplemental Record, 9.
In its brief to the court of appeals, the State failed to address or give any
consideration to the supplemental findings of fact and conclusions of law the trial
court filed in this cause, pursuant to the Order of the Court of Appeals. In the prayer
of its principal brief, the State requested that Reyes’ article 11.072 writ application
be reversed and that Reyes’ conviction be reinstated.
On page 8 of its opinion, the court of appeals provided the following
justification for its determination that Reyes should be denied relief on the non-
Padilla claims he had raised in his article 11.072 writ application:
We do not dispute the rial court made additional findings of fact that could
ostensibly support Reyes’s claims he was actually innocent and he received
ineffective assistance because his counsel failed o conduct and independent
investigation and inform him of the law of self-defense. However, it is clear
from the trial court’s original and supplemental conclusions of law that the trial
Page 15
court relied on the retroactive application of Padilla to conclude Reyes proved
deficient performance under he first prong of Strickland. The trial court
neither identified nor relied on any other theory of law to support its ruling,
and under pre-Padilla law, Reyes’s plea would not be rendered involuntary
under the United States or Texas Constitutions even if his attorney failed to
inform him of the immigration consequences of his plea.
SUMMARY OF THE ARGUMENT
Reyes asserts in his first ground for review that the court of appeals’ ruling
that the trial court failed to identify or rely on any theory of law which supported
granting Reyes relief on his non-Padilla claims is flawed in several respects. First,
because several of the trial court’s original findings of fact relate to Reyes’ non-
Padilla claims and original conclusion of law #6 states that Reyes “was prejudiced
... because he has plausible defenses to the underlying charge which, if believed by
a jury, could result in an acquittal,” it is evident the trial court relied at least in part
on non-Padilla theories to vacate Reyes’ conviction. Second, the court of appeals’
supplementation order precluded the trial court from providing supplemental findings
of fact or conclusions of law on any of Reyes’ non-Padilla claims. The court of
appeals therefore erred in drawing significance from the fact that the trial court failed
to make non-Padilla supplemental findings of fact or conclusions of law relating to
Reyes’ non-Padilla claims. Third, the in part implied and in part express holding by
the court of appeals that it could decide Reyes’ potentially dispositive non-Padilla
claims because the trial court failed to address these claims in its supplemental
Page 16
findings of fact and conclusions of law disregards this Court’s well-settled precedent.
According to this precedent, it is the trial courts which bear the responsibility to make
findings of fact and conclusions of law which are adequate and complete and cover
every potentially dispositive issue. It does not confer on the court of appeals the
authority to make findings of fact or conclusions on its own.
Reyes’ second ground for review focuses on the court of appeals’
determination that it “was clear from the trial court’s original order and supplemental
conclusions of law that the trial court relied on the retroactive application of Padilla
to conclude Reyes proved deficient performance under the first prong of Strickland”
after it acknowledged that Reyes did assert non-Padilla claims “that could ostensibly
support Reyes’s claims he was actually innocent and he received ineffective
assistance because his counsel failed to conduct an independent investigation and
inform him of the law of self-defense” (See Opinion, p. 8). Reyes asserts that the
court of appeals’ ignored considerable evidence and several of the trial court’s
original findings of fact pertaining to his non-Padilla claims. Reyes cites to decisions
of the U.S. Supreme Court and to language in a federal statute which impose on states
the duty, as a matter of Due Process, to provide a full and fair hearing to writ
applicants like Reyes, which reaches and decides all relevant issue of fact presented
and decides the merits of any constitutional claims presented. Reyes therefore asserts
Page 17
that the court of appeals exaggerated focus on his Padilla claim failed to provide him
with a full and fair hearing of his non-Padilla claims.
Reyes asserts in his third ground for review that the court of appeals so far
departed from the accepted and usual course of proceedings as to call for an exercise
of this Court’s power of supervision. Reyes argues that the court of appeals
accomplished this result by restricting the trial court to making supplemental findings
of fact and conclusions of law relating only to Reyes’ Padilla claim and then ruling
that the trial court’s original findings of fact and conclusions of law were inadequate
to support Reyes’ non-Padilla claims; by considering the trial court’s original
findings of fact and conclusions of law in isolation rather than in their totality; and
by abdicating its role as a reviewing court and assuming the role of trier of fact.
Overall, Reyes asserts that the methodology utilized by the court of appeals in dealing
with Reyes’ non-Padilla claims was seriously flawed and requires that this case be
remanded for further proceedings.
Page 18
ARGUMENT
1. The 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 claims when the
trial court was ordered to only supplement its findings of fact and
conclusions of law as to Reyes’ Padilla claim
The court of appeals rejected all five claims asserted in Reyes’ article 11.072
writ application, to wit: his first complaint (Padilla complaint); his second complaint
that trial counsel rendered ineffective assistance of counsel not advising him of the
law of self-defense before he entered his plea of guilty; his third complaint that his
trial counsel deprived him of effective assistance of counsel by not conducting an
independent investigation of the facts of his case; his fourth complaint that his guilty
plea was not knowingly and intentionally made; and his fifth complaint that he was
actually innocent of the Assault/Family Violence charge.2 The court of appeals
2
The non-Padilla grounds of Reyes’ article 11.072 writ application read as follows:
“2. Trial counsel's failure to conduct an independent investigation of the facts of the case
deprived Reyes of effective assistance of counsel since at least three witnesses to the
assault could have provided testimony establishing that it was Hilda Maldonado who
assaulted Reyes and that Reyes’ conduct was justified under the law of self defense.”
“3. Trial counsel's failure to advise Reyes concerning the law of ‘self defense’ deprived
Reyes of effective assistance of counsel since Reyes would not have otherwise pled guilty
to the Class ‘A’ assault charge.”
“4. Applicant Reyes’ guilty plea should be vacated and set aside because it was not
knowingly and intentionally made.”
“5. Applicant Reyes is actually innocent of the Class “A” assault/family violence offense of
which he was convicted in this cause.”
Page 19
explained its refusal to address Reyes’ actual innocence claim or his non-Padilla
ineffective assistance claims on the following rationale:
We do not dispute the trial court made additional findings of fact that could
ostensibly support Reyes’s claims he was actually innocent and he received
ineffective assistance because his counsel failed to conduct an independent
investigation and inform him of the law of self defense. However, it is clear
from the trial court’s original and supplemental conclusions of law that the trial
court relied on the retroactive application of Padilla to conclude Reyes proved
deficient performance under the first prong of Strickland. The trial court
neither identified nor relied on any other theory of law to support its ruling,
and under pre-Padilla law, Reyes’s plea would not be rendered involuntary
under the United States or Texas Constitutions even if his attorney failed to
inform him of the immigration consequences of his plea. (Opinion, p. 8).
The Court of Criminal Appeals has stated that when a trial court enters findings of
fact, it has 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.” State v. Elias, 339 S.W.3d 667, 676
(Tex.Crim.App. 2011). In Reyes’ case, the court of appeals granted the State’s motion
for supplemental findings of fact and conclusions of law only as to Reyes’ Padilla
claim. It accordingly agreed with the State that the original findings of fact which
were issued by the trial court sua sponte as to Reyes’ Padilla claim were not adequate
and complete.3 However, because the State did not request the court of appeals to
3
The trial court’s original findings of fact and conclusions of law are appended as “Exh.
A.” The State’s motion to abate and request for supplemental findings of fact are appended as
“Exh. B”; the order granting the State’s motion to supplement is attached as “Exh. C;” and the
supplemental findings of fact provided by the trial court are appended as “Exh D.”
Page 20
direct the trial court to provide supplemental findings of fact and conclusions of law
as to Reyes’ non-Padilla ineffective assistance claims or his actual innocence claim,
the court of appeals did not order the trial court to make supplemental findings of fact
and conclusions of law with regard to Reyes’ actual innocence claim or his two non-
Padilla ineffective assistance of counsel claims.
The court of appeals thus erred by restricting the trial court to providing
supplemental findings of fact and conclusions of law only as to Reyes’ Padilla claim.4
This Court in State v. Elias, supra, established that a court of appeals must ensure that
a trial court makes all findings of fact and conclusions of law which are potentially
dispositive of the issue being decided by the trial court. Id., at 676. Elias further
establishes that these findings of fact and conclusions of law are to be made by the
trial court, not by a court of appeals. The unfairness of the court of appeals’ decision
in Reyes’ case is thus self-evident. By vacating the trial court’s judgment setting
aside Reyes’ conviction, the court of appeals disregarded several of the trial court’s
original findings of fact and a conclusion of law which supported vacating Reyes’
conviction on the non-Padilla ineffective assistance grounds asserted by Reyes in his
writ application.
4
The State apparently requested supplemental findings of fact and conclusions of law as
to Reyes’ Padilla claim because the U.S. Supreme Court had not yet decided whether Padilla v.
Kentucky should be retroactively applied on the date the State filed its principal brief.
Page 21
These original findings of fact and conclusions of law reveal that the trial court
did not confine itself to Reyes’ Padilla claim in deciding to vacate Reyes’ conviction.
In finding of fact #6, the trial court accepted evidence presented by Reyes which
established that the alleged assault occurred at the home of Reyes’ cousin, Hector
Garcia, which is where Reyes was residing on the date the complaining witness, Hilda
Maldonado (Reyes’ wife or ex-wife), un-expectantly arrived at Garcia’s home and
confronted Reyes in the kitchen. In finding of fact #7, the trial court determined,
based on the evidence adduced at the evidentiary hearing, that portions, but not the
entirety, of that confrontation were witnessed or overheard by Mr. Garcia and at least
two of Reyes’ children (Juan Carlos Reyes, Jr., then ten years old and Angel, then
seven years old). In finding of fact #8, the trial court found that there was nothing in
its file to indicate that witness statements were ever obtained from the complaining
witness (Maldonado) or the other witnesses on the date of the incident. The trial
court further found that these witnesses testified at the evidentiary hearing that they
did not speak with the police on the date of the incident. In finding of fact #9 the trial
court found that the same supplement report indicated that photos of the complaining
witness were taken, but that no photos were presented in the Habeas Proceeding
showing that she was injured. In finding of fact #10, the trial court stated that the
testimony of Mr. Garcia and the children supported a finding that Hilda Maldonado
Page 22
was the aggressor and that Reyes merely placed his hands on her to try and get past
her to leave. In finding #11, the trial court found that the criminal charge against
Reyes resolved quickly; that Reyes met his court-appointed lawyer at this
arraignment/pretrial on February 14, 2006; that he had a second meeting with his
attorney on March 16, 2006; and that Reyes entered a guilty plea on March 30, 2006
pursuant to a Plea recommendation also prepared on that date. In finding of fact #14,
the trial court made a finding that Maldonado, the complaining witness, had not been
called as a witness to provide testimony at the evidentiary hearing held on Reyes’
article 11.072 writ application. And in conclusion of law # 6, the trial court stated
that Reyes “...was prejudiced ....because he has plausible defenses to the underlying
charge which, if believed by a jury, could result in an acquittal.” CR 132.
The court of appeals therefore erred in vacating the trial court’s judgment in
the face of the trial court’s several findings of fact and conclusion of law which
supported Reyes’ non-Padilla claims. Even if the court of appeals believed these
findings of fact and conclusion of law were not adequate or complete, it was not
authorized to simply ignore them and deny Reyes relief on his non-Padilla claims.
It should have addressed the trial court’s numerous original findings of fact and
conclusion of law and not just ignored them. It also should not have restricted the trial
court to providing supplemental findings of fact and conclusions of law which related
Page 23
only to Reyes’ Padilla claim, when findings of fact #s 6, 7, 8, 8, 10, 11, and 14, and
conclusion of law #6 of the trial court’s original findings of fact suggest that it had
vacated Reyes’ conviction at least in part on his non-Padilla claims.
The court of appeals accordingly disregarded the rule that a trial court must
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.” State v. Elias, 339 S.W.3d at 676. If it believed that the trial
court’s findings of fact and conclusions of law were inadequate and incomplete as to
Reyes’ non-Padilla and actual innocence claims, it should have remanded the case
to the trial court to provide additional findings of fact and conclusions of law relating
to these claims. But it should not have merely ignored the trial court’s original
findings of fact and conclusions of law relating to his non-Padilla claims. After all,
it is not reasonable to believe that the trial court would provide several original
findings of fact and at least one conclusion of law which supported granting his non-
Padilla claims if there was no merit to these claims.
2. The court of appeals 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
The court of appeals’ Opinion acknowledges that Reyes asserted an actual
innocence claim with regard to the Assault/Family Violence offense of which he was
Page 24
convicted. Its Opinion also acknowledges Reyes’ 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. The court of appeals nonetheless determined that Reyes was not
entitled to relief on these non-Padilla claims even though the trial court addressed
these claims, if not fully, at least to a great extent in its original findings of fact and
conclusions of law.
There is accordingly no merit to the court of appeals’ assertion in its Opinion
that the trial court “neither identified nor relied on any other theory of law” [other
than Padilla] in vacating Reyes’ judgment of conviction on the Assault/Family
violence charge. By refusing to address Reyes’ non-Padilla claims, the court of
appeals deprived Reyes of a full and fair hearing, and did not address all of the
relevant facts and all of Reyes’ constitutionally-based ineffective assistance of
counsel claims. The court of appeals’ analysis thus disregards the United States
Supreme Court decision in Townsend v. Sain, 372 U.S. 293, at 313 (1963) (overruled
on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)), in which the
United States Supreme Court recognized that “the factfinding procedure employed
by the state court [must be] adequate to afford a full and fair hearing” so as to comply
Page 25
with Fourteenth Amendment Due Process in that:
[t]here cannot even be the semblance of a full and fair hearing unless the state
court actually reached and decided the issues of fact tendered by the defendantA
No relevant findings have been made unless the state court decided the
constitutional claim tendered by the defendant on the merits.” Id. at 313-14.
The court of appeals also disregarded the United States Supreme Court’s decision in
Castille v. Peoples, 489 U.S. 346, 350 (1989), which held, pursuant to 28 U.S.C. §
2254(b), that federal habeas review will lie where state corrective processes which
are "ineffective to protect the rights of the prisoner."
The court of appeals in this case therefore erred by taking the position that the
Reyes’ two potentially dispositive non-Padilla claims need not be fully addressed by
the trial court, even though several of the trial court’s findings of fact and at least one
conclusion of law supported Reyes’ non-Padilla claims. Its analysis deprived Reyes
of Due Process of the law under the Fourteenth Amendment by denying him a full
and fair hearing as to all of his potentially dispositive claims. The record reflects that
Reyes’ non-Padilla claims were strong and that they should have been carefully
addressed on appeal rather than just being skimmed over.
In fact, the evidence adduced at the evidentiary hearing of Reyes’ writ
application through Reyes and three other witnesses established that it was Reyes’
wife, Maldonado, who was the aggressor; that Maldonado went looking for Reyes at
Hector Garcia’s house, where Reyes was residing so that she could confront him and
Page 26
slap him several times on the face; that Maldonado begged Reyes to hit her, which
he refused to do; that Reyes did not strike Maldonado or injure her in any way; and
that Reyes did nothing more than push Maldonado away to protect himself and to
allow him to exit his cousin’s residence so that the matter did not escalate further.
There was also no controverting evidence adduced by the State. Maldonado did not
testify at the evidentiary hearing or provide an affidavit for purposes of this hearing.
For this reason, the court of appeals’ analysis cannot be reconciled with
Townsend v. Sain, supra, which requires that all state writ applicants be provided a
full and fair hearing as to all fact and constitutional issues which need to be decided.
Nor can it be reconciled with 28 U.S.C. § 2254(b), which provides that that federal
habeas review will lie where state corrective processes are "ineffective to protect the
rights of the prisoner." Under applicable Due Process principles, the court of appeals
was not a full and fair hearing because it ignored all of Reyes’ potentially dispositive
non-Padilla claims and the several findings of fact made by the trial court which
supported these claims and addressed only Reyes’ Padilla claim.
3. The court of appeals 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
The power of a trial court to act in a given case ends when the appellate record
is filed in the court of appeals, except for matters concerning bond. Duncan v. Evans,
Page 27
653 S.W.2d 38 (Tex.Cr.App.1983). A trial court’s authority to provide additional
findings of fact comes into existence, however, only when an appellate court abates
the appeal for additional findings of fact because a party has requested findings of
fact and the findings made by a trial court are so incomplete that an appellate court
is unable to make a legal determination. State v. Elias, 339 S.W.3d 667, 674
(Tex.Crim.App. 2011)(holding that "[U]pon the request of the losing party on a
motion to suppress evidence, the trial court shall state its essential findings." and
stating that. "[E]ssential findings" mean "findings of fact and conclusions of law
adequate to provide an appellate court with a basis upon which to review the trial
court's application of the law to the facts." Id.; State v. Cullen, 195 S.W.3d 696, 699
(Tex. Crim. App. 2006).
In its motion to abate and for supplemental findings, the State alleged the
following factual basis as grounds for its request that the trial court should be ordered
to supplement its original findings of fact and conclusions of law in deciding the
merits of Reyes’ appeal:
With respect to the deficient-performance prong of the Strickland
standard for ineffective-assistance claims, see Strickland v. Washington,
466 U.S. 668, 687,104 S.Ct 2052, 80 L.Ed.2d 674, the entirety of the
trial court’s findings that might be relevant to the issue of deficient
performance reads as follows:
12. The Defendant now claims that his trial counsel did not
advise him of immigration consequences and did not
Page 28
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....
The entirety of the trial court’s conclusions of law that might be related
to the issue of deficient performance reads as follows:
4. The only evidence before the Court concerning the
admonitions of potential immigration consequences is the
boiler plate sentence in the plea papers, and the
Defendant’s sworn testimony.
5. Under Padilla, as applied retroactively, the Defendant was
not sufficiently admonished about immigration
consequences. (CR at 132) (emphasis in original).
***
The trial court’s findings wholly failed to resolve disputed fact issues
regarding whether trial court rendered deficient performance by failing
to properly advise Reyes of the immigration consequences of his guilty
plea. Specifically, the trial court failed to make findings as to whether
it found Reyes’s attestations to be credible, and while the trial court
found that Reyes was “not sufficiently admonished,” the trial court
failed to specifically find that Reyes was not sufficiently advised by trial
counsel of the immigration consequences of his guilty plea.
The court of appeals granted the State’s motion for supplemental findings of fact and
conclusions of law and directed the trial court to provide supplemental findings of
fact and conclusions of law in accordance with the content of this motion. That is,
it adopted the State’s assertion in its motion that the immigration consequences Reyes
Page 29
faced and whether he pled guilty based on his trial counsel’s failure to advise him
regarding these immigration consequences represented “The entirety of the trial
court’s findings that might be relevant to the issue of deficient performance.” The
court of appeals also adopted the State’s contention that “The entirety of the trial
court’s conclusions of law that might be related to the issue of deficient performance”
was that of Reyes’ Padilla claim.
The trial court thus complied with the court of appeals’ order by providing
supplemental findings of fact and conclusions of law limited exclusively to Reyes’
Padilla claim. As the court of appeals instructed, it did not address Reyes’ non-
Padilla claim that his trial counsel failed to conduct an independent investigation of
the facts or Reyes’ claim that his trial counsel failed to advise him on the law of self-
defense and how it applied under the facts of his case, and Reyes’ actual innocence
claim. Nevertheless, the court of appeals construed the trial court’s failure to address
Reyes’ non-Padilla claims as a reason for concluding that the trial court had erred by
setting aside Reyes’ conviction on the Assault/Family Violence charge.
In other words, the court of appeals weighed and considered the trial court’s
failure to provide supplemental findings of fact and conclusions of law as to
ineffective assistance claims which the trial court was precluded from providing. In
doing so, the court of appeals so far departed from the accepted and usual course of
Page 30
judicial proceedings as to call for an exercise of this Court’s power of supervision.
Reyes asserts that the court of appeals could not reverse the trial court’s order
vacating Reyes’ conviction and sentence because of the trial court failure to
supplement its original findings of fact and conclusions of law with findings of fact
and conclusions of law it was not authorized to supplement. The analysis of the court
of appeals thus disregards this Court’s decisions in State v. Elias, 339 S.W.3d 667,
674 (Tex.Crim.App. 2011) and State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim.
App. 2006), which recognize that a trial court must state all of its essential findings
and conclusions of law in order to provide an appellate court with an adequate basis
to review the trial court's application of the law to the facts.
The 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 e.g., State v. Gobert, 275 S.W.3d 888, 891-92 & n. 13
(Tex.Crim.App.2009) (ruling that the trial judge’s suppression ruling on an issue of
historical fact was to be given almost total deference, even if the record might also
support a different conclusion); Wright v. State, 981 S.W.2d 197, 201 (Tex. Crim.
App. 1998) (holding that courts of appeals may not take on the role of fact-finder);
Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996) (ruling that appropriate
balance between a trier of fact’s role as Judge of facts and a reviewing court's duty
Page 31
to review criminal convictions is struck by not allowing appellate court to "find"
facts, or substitute its judgment for that of the trier of fact); State v. Duran, 396 SW
3d 563 (Tex. Crim.App. 2013) (holding that an appellate court must defer to a trial
judge's factual findings which, when viewed piecemeal and in isolation, may be
ambiguous, but, when read in their totality, reasonably support his legal conclusion.
The un-refuted evidence adduced by Reyes through affidavits and testimony at
the evidentiary hearing established that it was Maldonado who was the aggressor and
not Reyes; that Maldonado had gone looking for Reyes’ at the place where he was
living (with his cousin Hector Garcia) so that she could start trouble; that Maldonado
stormed into Garcia’s residence when allowed inside by Garcia; that Maldonado
immediately confronted Reyes in the kitchen of Garcia’s residence and began
slapping and assaulting Reyes and yelling at him for ending their relationship; and
that Reyes did nothing more than push Maldonado in self defense so that he could get
around her and exit the residence without harming Maldonado. The court of appeals
has thus so far departed from the accepted and usual course of proceedings by
disregarding findings of fact #s 6 through 10, #11, and #14 of the trial court’s original
findings of fact and conclusion of law #6.
Page 32
PRAYER
Wherefore, Petitioner Reyes respectfully requests this Court to reinstate the
trial court’s judgment; or alternatively, to order the court of appeals to remand the
case to the trial court for supplemental findings of fact and conclusions of law as to
Reyes’ non-Padilla and actual innocence claims.
Respectfully submitted,
/s/ James D. Lucas
James D. Lucas
Attorney for Juan Carlos Reyes
2316 Montana Avenue
El Paso, Texas 79903
Tel. (915) 532-8811
Fax (915) 532-8807
SBN 12658300
CERTIFICATE OF SERVICE
This is to certify that on December 26, 2014, a true and correct copy of the
Petitioner’s Brief was delivered to the District Attorney, 500 E. San Antonio, El Paso,
Texas 79901 and to the Prosecuting Attorney by electronic means in accordance with
the Texas Rules of Civil Procedure.
/s/ James D. Lucas
JAMES D. LUCAS
Page 33
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
This brief filed in support of thereof comply with the type-volume limitations
of 9.4. The brief contain eight thousand three hundred forty one (8,341) words,
excluding the parts of the brief exempted by 9.4(1); and this brief complies with the
typeface requirements of 9.4(e) because this brief has been prepared in a
proportionally spaced typeface using Corel Word Perfect in Times New Roman, 14-
point.
/s/ James D. Lucas
James D. Lucas
Page 34
APPENDIX
EXHIBIT A. ORIGINAL FINDINGS OF FACT (14) AND CONCLUSIONS
OFLAW(7)
EXHIBIT B. MOTIONTOABATEANDREQUESTFOR SUPPLEMENTAL
FINDINGS OF FACT AND CONCLUSIONS OF LAW
EXHIBIT C. COURTOFAPPEALSORDER
'\
EXHIBIT D. SUPPLEMENTAL FINDINGS OF FACT PROVIDED BY THE
TRIAL COURT
EXHIBIT E. COURT OF APPEALS OPINION AND JUDGMENT
EXHIBIT A. ORIGINAL FINDINGS OF FACT (14)
AND CONCLUSIONS OF LAW (7)
IN THE COUNTY COURT AT LAW NUMBER SEVEN
EL PASO COUNTYt TEXAS
EX PARTE §
§
vs. § NO. 20050C17647
§
JUAN CARLOS REYES §
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court hereby makes the following Findings of Fact a11d Conclusions of Law.
FINDINGS OF FACT
1. The Defendant, Juan Carlos Reyes, was born on March 10, 1980.
2. He has lived continuously in the United States since he was nine years old
01erified Writ Application, 11 0) and has been a lawful permanent resident since
2001 (Juan. Carlos Reyes affidavit ,1).
3. Tt;.ere is no evidence of any criminal history other than this particular case.
4. The Defendant is the father of three children, all born the United States. (Juan
Carlos Reyes affidavit 111 ).
5. In the present case, the Defendant was charged with Assault Family Viole11ce
because of an incident occurring on or about September 5, 2005.
6. Tile incident occurred at the home ofDefendant~s cousin Hector Garcia, when the
Defendant's wife (or ex~wife) Hilda Maldonado arrived and a. confrontation arose
between Ms. Maldonado and the Defendant.
7. Portions, but not the entirety, of that confrontation were witnessed or overheard
by Mr. Garcia and at least two of the Defendant's children (Juan Carlos Reyes,
Jr., then ten yeats old and Angel, then seven years old).
8. There is nothing in the Court's file to indicate that witness statements were ever
obtained from these individuals and they testified that they did not speak with the
police. However, there is a supplemental report of Officer 3325 indicating a
conversation with Mr. Garcia wherein he recounted observing some mutual
pushing but stated that he did not want to be involved.
;.
9. That sam.e supple1nental report indicates photos of the complaining witness were
taken. However, no photos were presented in this Habeas Corpus proceeding.
10. The testimony of Mr. Garcia and the children (who admittedly did not see
everything and who naturally have a motive to support the Defendant) support a
fmding that Ms. Maldonado was the aggressor and that the Defendant merely
placed his hands on her to try and get past her to leave.
11. Tite criminal chatge 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 16, 2006, and entered a guilty plea 011 March 30, 2006.
(Juan Carlos Reyes affidavit ~2-4). It appears fTom the Court's file that the Plea
recomm.endation which formed the basis of the plea was also prepared on March
30,2006.
12. The Defen.drutt now claims that his trial coun.se1 did not advise him of
immigration consequences and did not advise him that his plea would subject him
to removal from the United States. (Juan Carlos Reyes affidavit ~18)
13. The Defendant did sign plea papers which contain standard ~'boiler plate"
lattgua.ge which states:
"I further understand that in the event I atn not a citizen of the
U.S.A., n1y plea of guilty may result in deportation, exclusion
from admission to the U.S.A. or denial of naturalization under
federal law."
14. Neither the Defendant nor the State called the Defendanes trial counsel to testify.
No affidavit from her was presented. No tTanscript of anything stated at the time
of the guilty plea was submitted. The Court takes judicial notice of the normal
practice in El Paso County to not make a record of misdemeanor pleas.
CONCLUSIONS OF LAW
1. The Supreme Court decision of Padilla v. Kentucky, 130 S. Ct. 1.473 (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
volu:ntru.ily entered.
2. Texas Courts apply Padilla retroactively. Ex Parte De Los Reyes, 350 S.W. 3rd
723 (Tx. App. ~ El Paso 2011); Ex Parte Tanldevskaya 361 S.W. 3rd 86 (Tx. App.
~ Houston 2011); Aguilar v. State,~ S.W. 3rd _ , (Tx. App. 1.4111 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 definitively 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 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.
7. Therefore, the writ is GRANTED. The Defendant's conviction is hereby
VACATED and set aside. The underlying Assault Family Violence charge is to
be reinstated on the Court's trial docket and promptly scheduled for trial.
Signed and entered this _i:_ day of (:\ :::::?:s: '2012.
cc: James Lucas
ADA Shrode
EXHIBIT B. MOTION TO ABATE AND REQUEST FOR
SUPPLEMENTAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW
No. 08-12-00261-CR
JAN 30 1.013
IN THE
DfNiSE PACHECO, CLERK COURT OF APPEALS
E\GHTH COURt OF APPEA'iiGHTH DISTRICT OF TEXAS
EX PARTE: JUAN CARLOS REYES
FILED .IN
STATE'S MOTION TO ABATE THE APPEAL AND COURT c..:~ APPEA.LS
REMAND THE CASE TO THE TRIAL COURT FOR
SUPPLEMENTAL FINDINGS OF FACT
AND CONCLUSIONS OF LAW
TO THE COURT OF APPEALS, EIGHTH DISTRICT OF TEXAS:
COMES NOW, the State of Texas in the above styled and numbered cause,
and submits that the appeal should be abated and the case remanded to the trial
court for supplemental findings of fact and conclusions of law, and would show
the Court as follows:
I. Procedural history
On March 30, 2006, Juan Carlos Reyes pleaded guilty to the offense of
family-violence assault in a case styled, The State ofTexas v. Juan Carlos Reyes,
trial court cause number 20050C17647. (CR 2-3). 1 On March 2, 2012, Reyes
1
Throughout this motion, 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 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.
filed an application for writ ofhabeas corpus under article 11.072 of the Code of
Criminal Procedure. (CR at 24-50). After hearing evidence and arguments during
two writ hearings, the trial court took the matter under advisement. (RR 3 at 33-
35); see generally (RR 2 at 5-91; (RR 3 at 12-35). On August 6, 2012, the trial
court signed a written order granting Reyes relief on his application for writ of
habeas corpus, and as part of that written order, issued findings of fact and
conclusions of law. (CR at 130-32). On August 7, 2012, the trial court eritered
another written order granting Reyes relief and vacating his conviction. (CR at
129).
II. Because the trial court's findings and conclusions are inadequate and
incomplete, this Court should remand the case and direct the trial court
to supplement the record with the missing findings and conclusions.
Section 7(a) of article 11.072 provides that if the trial court determines from
the face of an application or documents attached to the application that the
applicant is manifestly entitled to no relief, the trial court shall enter a written
order denying the application as frivolous. See TEX. CRIM. PROC. CODE art.
11.072 § 7(a). In all other cases, the trial court's written order granting or denying
relief must include findings of fact and conclusions of law. See art. 11.072 § 7(a);
see also Ex parte Villanueva, 252 S.W.3d 391, 396 (Tex.Crim.App. 2008)
(holding that in all other cases where the trial court does not deny the writ
2
application as frivolous, "[t]he trial judge is required to enter findings of fact and
conclusions of law along with a written order... "); Ex parte Enriquez, 227 S.W.3d
779, 784 (Tex.App.-El Paso 2005, pet. ref' d); Ex parte Ali, Nos. 03-10-00206-CR,
03-10-00207-CR, 2010 WL 5376860 at *2 (Tex.App.-Austin, Dec. 15, 2010, no
pet.)(mem. op.) (not designated for publication) (holding that where the trial court
does not deny the writ application as frivolous, the court's written order granting
or denying relief must include findings of fact and conclusions of law).
The Court of Criminal Appeals has recently held that when a trial court
enters findings of fact, it has 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 ofthe ... proceedings." See
State v. Elias, 339 S.W.3d 667, 676 (Tex.Crim.App. 2011). The Court of Criminal
Appeals has further disapproved of the trial court's failure to make credibility
determinations and the use of "weasel words" that fail to convey a straightforward
historical fact:
... the judge stated that ... [the officer] "testified" that he stopped appellee
"because she weaved within a lane a few times, veered to the right and.
braked erratically." Clearly, the officer "testified" to those facts; any
reviewing court can read the record and see Officer Davila's testimony, but
did the trial judge believe that testimony? See State v. Mendoza, 365
S.W.3d 666, 671 (Tex.Crim.App. 2012).
3
When a trial court fails to make findings regarding potentially dispositive
fact issues, the reviewing court should remand the case and direct the trial court to
supplement the record with the missing findings and conclusions. See Elias, 339
S.W.3d at 676-77. In this case, the trial court failed to make findings regarding
potentially dispositive fact issues, failed to make essential credibility
determinations, and used "weasel words" that failed to convey straightforward
facts that support its ruling.
With respect to the deficient-performance prong of the Strickland standard
for ineffective-assistance claims, see Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the entirety ofthe trial court's findings
that might be relevant to the issue of deficient performance reads as follows:
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
at131).
The entirety of the trial court's conclusions of law that might be related to
the issue of deficient performance reads as follows:
4
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. (CR at
132) (emphasis in original).
The trial court's findings and conclusions constitute nothing more than a
restatement ofReyes's writ claims or a recitation of the evidence that was or was
not presented at the writ hearing. The trial court's findings wholly failed to
resolve disputed fact issues regarding whether trial counsel rendered deficient
performance by failing to properly advise Reyes of the immigration consequences
of his guilty plea. Specifically, the trial court failed to make findings as to
whether it found Reyes's attestations to be credible, and while the trial court found
that Reyes was "not sufficiently admonished," the trial court failed to specifically
find that Reyes was not sufficiently advised by trial counsel of the immigration
consequences of his guilty plea.
The trial court's findings are thus inadequate and incomplete, and this Court
should remand the case and direct the trial court to supplement the record with the
missing findings and conclusions. See Ex parte Flores, No. AP-76,862, 2012 WL
6027333 at* 1, 5 (Tex.Crim.App., Dec. 5, 2012) (not yet reported) (rejecting the
trial court's findings of fact and conclusions of law where the trial court's findings
5
were largely a recitation of the evidence presented at the writ hearing and did
nothing more repeat and restate of the parties' arguments); Elias, 339 S.W.3d at
6 7 6-77. This is particularly important because the trial court appeared to opine at
the writ hearing that he was not required to find that counsel performed deficiently
in order to grant relief on Reyes's ineffective-assistance claim:
[State]: The other thing that I did just want to point out, Your Honor, is that I
do believe that there is a- there's credible proof that he did not
obtain an affidavit from the trial attorney, Wendy Ferrell. I've seen
~ituations where the attorney says, I didn't really tell him that. I think
that's problematic. Really, what we're doing is doing a little more
than just setting aside the conviction. We're saying that Wendy
Ferrell was incompetent. I do not believe- you know, I'm concerned
in this situation.
[Court]: I'm not sure we are saying that, because I think this was an '05 case.
And I think Padilla came out- I don't remember when. I'm pretty
sure it was way after '05.
I think Ms. Ferrell, when she did it, may well have been
perfectly consistent with- their plea was entered in March of-
[State]: If that's the case, that was prePadilla. Padilla changed the landscape.
If that's the case, this case- Padilla does not apply
retroactively .... (RR 3 at 30-31).
* * *
[State]: I guess my point is: If you are saying it's retroactive, you're saying
that has always been the law, that she was required to have told him
that. By not doing so, she was incompetent.
[Court]: Well, I don't share your view as to what that means, I don't think ....
(RR 3 at 32).
With respect to the prejudice prong of the Strickland standard for
ineffective-assistance claims, the trial court concluded that "[t]he Defendant was
6
prejudiced because he would not have plead guilty had he known of the
deportation/removal consequences, and because he has plausible defenses to the
underlying charge which, ifbelieved by a jury, could result in an acquittal." (CR
at 132). But the trial court failed to make specific fact findings that Reyes attested
that he would have pleaded not guilty and would have insisted on trial and that the
trial court found those attestations to be credible. There are, in fact, no factual
findings that support the trial court's conclusion that Reyes would have pled not
guilty had he known of the immigration consequences of doing so.
The trial court also failed to make specific findings and conclusions
addressing and resolving the State's argument that any decision by Reyes to reject
the plea bargain and proceed to trial would not have been objectively rational
under the circumstances. (CR at 65-69); (RR 3 at 24-30); see also Padilla v.
Kentucky, ---U.S.---, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (201 0) (holding that
in order to obtain relief on an ineffective-assistance claim, an applicant "must
convince the court that a decision to reject the plea bargain would have been
rational under the circumstances"). The trial court's findings and conclusions are
thus inadequate and incomplete in these respects as well.
7
For all the foregoing reasons, this Court should remand the case and direct
thetrial court to supplement the record with the missing findings of fact and
conclusions of law. See, e.g., Ex parte Flores, 2012 WL 6027333 at* 1, 5; Elias,
339 S.W.3d at 676-77.
8
PRAYER
WHEREFORE, the State prays that this Court abate the appeal and remand
the case to the trial court for supplemental findings of fact and conclusions of law.
Respectfully submitted,
JAIME ESPARZA
DISTRICT ATTORNEY
34th JUDICIAL DISTRICT
ASST. DISTRICT ATTORNEY
201 EL PASO COUNTY COURTHOUSE
500 E. SAN ANTONIO
EL PASO, TEXAS 79901
(915) 546-2059 ext. 3769
FAX (915) 533-5520
SBN 24046929
ATTORNEYSFORTHESTATE
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the above motion was
mailed by certified mail on January 31, 2013, to appellee's attorney: James D.
Lucas, 2316 Montana Ave., El Paso, Texas 79903.
L~M~
9
EXHIBIT C. COURT OF APPEALS ORDER
•
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
EX PARTE: JUAN CARLO$ REYES, No. 08-12-00261-CR
§
Appellant. Appeal from the
§
County Court at Law No. 7
§
of El Paso County, Texas
§
(TC# 20050Cl7647-CC7-1)
§
§
ORDER
The Court has considered the State's motion to abate the appeal and remand the case to the
trial court for supplemental findings of fact and conclusions of law and ORDERS the folloWing:
1. The State's motion to abate the appeal and remand the case for supplemental findings
of fact and conClusions
'
of Jaw is GRANTED.
.
2. The appeal is ABATED and the Honorable Thomas A. Spieczny, Judge for County
Court at Law N,o. 7, is directed to enter the missing findings of fact and conclusions
of law.
3. A supplemental clerk's record containing the findings of fact and conclusions of law
shall be filed with this Court within 30 days from the date of this order.
IT IS SO ORDERED ~is 14th day of February, 2013.
PER CURIAM
Before McClure, C.J., Rivera imd Rodriguez, JJ.
EXHIBIT D. SUPPLEMENTAL FINDINGS OF FACT
PROVIDED BY THE TRIAL COURT
flLEO FOR RECOP.t!l
INTHECOUNTYCOURTATLAWNUMBERSEVEN \N HY OFFICE
EL PASO COUNTY, TEXAS
1013 APR 29 AM 10: 32
EX PARTE §
§
vs. §
§
JUAN CARLOS REYES §
SUPPLEMENTAL
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On August 6, 2012, this Court filed Findings of Fact and Conclusions of Law. On
January 20, 2013, the State filed a Motion which requested Supplemental Findings of Fact and
Conclusions of Law. That Motion was not served on this Court. Having recently learned of the
Motion, the Court now supplements its prior Findings and Conclusions.
SUPPLEMENTAL FINDING OF FACT #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. 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.
SUPPLEMENTAL FINDING OF FACT #2
The Court further finds that the Defendant would absolutely positively NOT have plead
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)
SUPPLEMENTAL FINDING OF FACT #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.
The Court takes judicial notice of the following data. received from the Office of Court
Administration. In 2005 (the year of Juan Carlos Reyes' case) there were 1,684 dispositions of
Assault Family Violence cases. There were 603 findings of guilt or guilty pleas and 1.081
findings of not guilty or dismissals. The guilty category included 203 cases of straight probation,
183 cases of deferred adjudication probation and only 217 cases with jail sentences. More than
half of those jail sentences were for less than 60 days. This data (which presumably has always
..
been available to the State) totally undermines the claim that Juan Carlos Reyes had to take the
plea to avoid the harsh consequences of proceeding further through the judicial process.
SUPPLEMENTAL FINDING OF FACT #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 to face the ''risks" of misdemeanor prosecution.
SUPPLEMENTAL CONCLUSION OF LAW #1
The Court's original Conclusion of Law #2 concerning the retroactive applicability of
Padilla v. Kentuck;y 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.
Signed and entered this ~~ day of April, 2013.
~f'\.::5v\
TOM SPIECZNY, JUD~'d:
cc: James Lucas
ADA Shrode
EXHIBIT E. COURT OF APPEALS OPINION
AND JUDGMENT
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-12-00261-CR
§
Appeal from the
§
EX PARTE: JUAN CARLOS REYES County Court at Law No. 7
§
of El Paso, Texas
§
(TC# 20050C17647-CC7-1)
§
OPINION
The State of Texas appeals the trial court’s order granting Juan Carlos Reyes’s application
for writ of habeas corpus. In three issues, the State contends the trial court abused its discretion in
granting habeas relief based on ineffective assistance of counsel. We reverse and render
judgment reinstating Reyes’s guilty plea.
FACTUAL AND PROCEDURAL BACKGROUND
Reyes is not a United States citizen.1 In 2006, he pled guilty to the misdemeanor offense
of family violence against his then-wife, Hilda Maldonado. Reyes was convicted and
subsequently taken into custody by immigration officials. While in custody, Reyes filed an
1
It is unclear from the record what Reyes’s immigration status is. Reyes alleged in his application for writ of habeas
corpus that he was not a permanent resident but had legal authorization to remain in the United States. However, in
his affidavit in support of his application, Reyes averred he had been a lawful permanent resident since 2001.
Reyes’s mother testified at one of the hearings on the application that Reyes had been a permanent resident since 2001.
application for writ of habeas corpus seeking to vacate and set aside his conviction on several
grounds. Reyes asserted his trial counsel was ineffective for failing to: (1) inform him that his
plea would lead to removal; (2) conduct an independent investigation; and (3) advise him on the
law of self-defense. Reyes also asserted that his plea was not knowingly and intelligently made
and that he was actually innocent. In support of his application, Reyes submitted his affidavit, an
affidavit from his cousin, and statements from two of his sons.2 In his affidavit, Reyes averred to
the facts alleged in his application, including the allegation that he would not have accepted the
guilty plea if he had known he would be subject to removal from the United States and would have
opted for a trial and risked jail time as an alternative to removal.
The trial court held a hearing on the application.3 The trial court heard the testimony of
several character witnesses, each of whom testified Reyes was honest and peaceful. The trial
court also heard the testimony of three witnesses who were present during the altercation between
Reyes and Maldonado. All three testified that Reyes and Maldonado were arguing, that
Maldonado was the aggressor, and that Reyes did not strike Maldonado. Two further testified
that Maldonado invited Reyes to strike her, and one of them added that Maldonado slapped and
scratched Reyes.
After taking the matter under advisement, the trial court granted Reyes’s application. In
its order, the trial court stated it was granting relief “[o]n the basis of [its] findings of fact and
conclusions of law and the constitutional grounds identified therein[.]” Among the trial court’s
fourteen findings of fact, three are germane to the issue now before us. They declare:
12. The Defendant now claims that his trial counsel did not advise him of
2
The trial court permitted Reyes to supplement the record with his affidavit.
3
The hearing was continued twice.
2
immigration consequences and did not advise him that his plea would subject him
to removal from the United States . . . .
13. The Defendant did sign plea papers which contain standard ‘boiler plate’
language which states:
I further understand that in the event I am not a citizen of the U.S.A.,
my plea of guilty may result in deportation, exclusion from
admission to the U.S.A. or denial of naturalization under federal
law.
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. The Court takes judicial notice of the
normal practice in El Paso County to not make a record of misdemeanor pleas.
Of the trial court’s seven conclusions of law, six are pertinent. They read as follows:
1. The Supreme Court decision of Padilla v. Kentucky, [559 U.S. 356,] 130 S.Ct.
1473[,176 L.Ed.2d 284] (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 Tanklesvskaya[,] 361 S.W.3rd 86 (Tx.
App. – Houston 2012); Aguilar v. State, ___ S.W.3rd ___, (Tex. 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 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.
3
On appeal, the State moved to abate and remand the case to the trial court for supplemental
findings of fact and conclusions of law. We granted the State’s motion, and the trial court
complied. Of the trial court’s four supplemental findings, two are relevant. They decry:
The Court makes the finding that . . . 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.
. . .
The Court further finds that the Defendant would absolutely positively
NOT have plead guilty if he had been advised that doing so would lead to
deportation.
In its one supplemental conclusion of law, the trial court retreated from one of its original
conclusions of law when it resolved:
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.
INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON
RETROACTIVE APPLICATION OF PADILLA
In its first issue, the State contends the trial court abused its discretion in granting habeas
relief on the basis of Padilla because Padilla created a new rule that did not apply retroactively to
Reyes’s case. We agree.
Standard of Review
An applicant seeking post-conviction habeas corpus relief on the basis of an involuntary
guilty plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d
657, 664 (Tex.Crim.App. 2006). An appellate court reviewing a trial court’s ruling on a habeas
4
application must view the evidence presented in the light most favorable to the trial court’s ruling
and must uphold that ruling absent an abuse of discretion. Kniatt, 206 S.W.3d at 664. A trial
court abuses its discretion when it rules on the basis of an erroneous legal standard, even if that
standard may not have been clearly erroneous when the ruling was made. See Nicholas v. State,
56 S.W.3d 760, 764 (Tex.App.--Houston [14th Dist.] 2001, pet. ref’d)(“A trial court abuses its
discretion when it applies an erroneous legal standard or when no reasonable view of the record
supports the trial court’s conclusion under the correct law and facts viewed in the light most
favorable to its legal conclusion.”); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.
1996)(rejecting a party’s claim that a trial court could not have abused its discretion in resolving an
issue of first impression because an “erroneous legal conclusion, even in an unsettled area of law,
is an abuse of discretion”); McGary v. Scott, 27 F.3d 181, 183 (5th Cir. 1994)(stating that a federal
district court abuses its discretion when it relies on an erroneous legal conclusion or clearly
erroneous finding of fact to dismiss a second or subsequent federal habeas petition for abuse of the
writ).
Applicable Law
A defendant is entitled to effective assistance of counsel when entering a guilty plea. Hill
v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985); Ex parte
Harrington, 310 S.W.3d 452, 458 (Tex.Crim.App. 2010). To prevail on an ineffective assistance
of counsel claim, an appellant must meet the two-pronged test set out in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Texas Court of Criminal
Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986). See also, Lopez v. State,
343 S.W.3d 137, 142 (Tex.Crim.App. 2011). Under that test, the appellant must show both that
5
counsel’s representation fell below an objective standard of reasonableness and the deficient
performance prejudiced the defense. See Lopez, 343 S.W.3d at 142. If the appellant fails to
show either deficient performance or sufficient prejudice, he cannot succeed in proving
ineffectiveness. Strickland, 466 U.S. at 697, 104 S.Ct. at 2070; Perez v. State, 310 S.W.3d 890,
893 (Tex.Crim.App. 2010).
Discussion
Reyes cannot rely on the retroactive application of Padilla to prove his trial counsel’s
performance was constitutionally infirm.
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 Reyes’s trial counsel
rendered ineffective assistance, thereby entitling Reyes to habeas corpus relief. In Padilla, the
Supreme Court decided counsel had engaged in deficient performance under the first prong of the
two-pronged test set out in Strickland by failing to advise his client that a guilty plea made him
subject to deportation. Padilla v. Kentucky, 559 U.S. 356, 377, 130 S.Ct. 1473, 1488, 176
L.Ed.2d 284 (2010). The Supreme Court, however, did not address the question of whether its
holding in Padilla applied retroactively so as to permit defendants whose convictions were already
final at the time it issued its opinion to seek relief on this basis in a collateral proceeding. That
question was answered in the negative three years later.
In Chaidez v. United States, the Supreme Court held that Padilla announced a new rule of
criminal procedure and, therefore, it does not apply retroactively. --- U.S. ---, ---, 133 S. Ct. 1103,
1107, 1113, 185 L.Ed.2d 149 (2013). Relying upon the reasoning in Chaidez, the Texas Court of
Criminal Appeals subsequently held that Padilla does not apply retroactively under the Texas
6
Constitution. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013)(explicitly
declining opportunity to accord retroactive effect to Padilla as matter of state habeas law).
Here, Reyes pled guilty in 2006 and did not appeal his conviction. This conviction thus
became final before the Supreme Court decided Padilla. Because Padilla does not apply
retroactively, Reyes cannot rely on Padilla in this proceeding to argue his trial counsel rendered
ineffective assistance for failing to inform him that his plea would lead to removal. See Chaidez,
--- U.S. at ---, 133 S. Ct. at 1113 (“Under Teague [v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103
L.Ed.2d 334 (1989)], defendants whose convictions became final prior to Padilla therefore cannot
benefit from its holding.”); De Los Reyes, 392 S.W.3d at 679 (“Applicant may not rely on Padilla
in arguing that he was denied effective assistance of counsel.”).
Reyes does not argue Chaidez and De Los Reyes are not controlling here. Nor does he
argue his counsel’s failure to inform him of the immigration consequences of his guilty plea
constituted ineffective assistance under pre-Padilla law. Indeed, Reyes made no such claim in his
writ application. Instead, Reyes attacks the alternative arguments raised by the State in its second
and third issues. In those issues, the State argues, even if Padilla applies retroactively, Reyes has
nonetheless failed to establish deficient performance and sufficient prejudice under Strickland.
In attacking the State’s alternative arguments, Reyes contends the trial court’s ruling
should be affirmed for two reasons. First, Reyes asserts the State failed to demonstrate how the
trial court’s original and supplemental findings of fact and conclusions of law do not support
granting habeas relief on the other grounds raised by Reyes in his writ application. Second and
alternatively, Reyes maintains that, if we conclude the trial court’s findings of fact and conclusions
of law are insufficient or inadequate to support the trial court’s ruling, we should remand the case
7
back to the trial court to develop the record rather than reverse and reinstate his conviction.
We do not dispute the trial court made additional findings of fact that could ostensibly
support Reyes’s claims he was actually innocent and he received ineffective assistance because his
counsel failed to conduct an independent investigation and inform him of the law of self-defense.
However, it is clear from the trial court’s original and supplemental conclusions of law that the
trial court relied on the retroactive application of Padilla to conclude Reyes proved deficient
performance under the first prong of Strickland. The trial court neither identified nor relied on
any other theory of law to support its ruling, and under pre-Padilla law, Reyes’s plea would not be
rendered involuntary under the United States or Texas Constitutions even if his attorney failed to
inform him of the immigration consequences of his plea. See State v. Jimenez, 987 S.W.2d 886,
888-89 (Tex.Crim.App. 1999)(holding habeas applicant not entitled to relief on claim his attorney
failed to inform him of immigration consequence of his guilty plea because no such admonition
was constitutionally required). Because Padilla does not apply retroactively and pre-Padilla law
does not require admonishments of immigration consequences, Reyes has failed to establish his
trial counsel rendered deficient performance under Strickland. By failing to so establish, Reyes
has not proved his counsel’s performance was constitutionally infirm. Accordingly, we conclude
the trial court abused its discretion in granting Reyes habeas corpus relief on his claim that counsel
did not adequately inform him of the immigration consequences of his plea.
The State’s first issue is sustained.4
CONCLUSION
The trial court’s order granting relief is reversed, and Reyes’s guilty plea is reinstated.5
4
Given our disposition of the appeal based on the State’s first issue, we need not address the State’s second and third
issues. See TEX.R.APP.P. 47.1.
8
/s/ Yvonne T. Rodriguez
June 30, 2014 YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
5
We decline Reyes’s invitation to remand the case to the trial court to allow him to further develop the record. An
appellate court may remand a habeas proceeding to the trial court for further proceedings if the factual record has not
been sufficiently developed. See Ex parte Cherry, 232 S.W.3d 305, 308 (Tex.App.--Beaumont 2007, pet. ref’d).
Additionally, an appellate court may remand where the record is not sufficiently developed regarding alleged
prejudice. See Aguilar v. State, 375 S.W.3d 518, 526 (Tex.App.--Houston [14th Dist.] 2012), rev’d on other grounds,
393 S.W.3d 787 (Tex.Crim.App. 2013). Here, Reyes was given a meaningful opportunity at two hearings to develop
an evidentiary record to support his claim of ineffective assistance of counsel. There is nothing that indicates the trial
court unduly restricted Reyes’s ability to develop relevant evidence addressing the issues in dispute. Compare Ex
parte Hernandez, 398 S.W.3d 369, 375 (Tex.App.--Beaumont 2013, no pet.)(remand appropriate to develop record
because trial court unduly restricted the development of the record by confining evidence to the prior plea proceedings
in face of counsel’s efforts to offer other clearly relevant evidence).
9
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-12-00261-CR
§
Appeal from the
§
EX PARTE: JUAN CARLOS REYES County Court at Law No. 7
§
of El Paso, Texas
§
(TC# 20050C17647-CC7-1)
§
JUDGMENT
The Court has considered this cause on the record and concludes there was error in the
judgment. We therefore reverse the judgment of the court below, and render judgment
reinstating Appellant’s guilty plea, in accordance with the opinion of the Court. This decision
shall be certified below for observance.
IT IS SO ORDERED THIS 30TH DAY OF JUNE, 2014.
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.