PD-0229-15
No. __________________
__________________________________________
In the Texas Court of Criminal Appeals
_______________________________________
Victor James Vargas
Appellant,
v.
March 2, 2015
The State of Texas
Appellee.
_______________________________________
On Review from the
Eleventh Court of Appeals at Eastland, Texas
____________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
____________________________________________________________
Frank Sellers
Texas Bar No. 24080305
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
P: 806.771.0700
F: 806.763.8199
frank@hurleyguinn.com
Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED
I DENTITY OF J UDGE , P ARTIES , AND C OUNSEL
Trial Court Judge
Honorable Carter Schildknect
106th District Court of Dawson County, Texas
Defendant/Appellant Appellate Counsel
Victor Vargas Frank Sellers
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
P: (806) 771-‐‑0700
F: (806) 763-‐‑8199
E: frank@hurleyguinn.com
Court-‐‑Appointed Trial Counsel
Artie Aguilar
1015 Buddy Holly Avenue
Lubbock, Texas 79401
The State of Texas Trial and Appellate Counsel
Mike Munk
DAWSON COUNTY DISTRICT ATTORNEY’S OFFICE
P.O. Box 1124
Lamesa, Texas 79331-‐‑0008
i
T ABLE OF C ONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL .................................................... I
TABLE OF CONTENTS .......................................................................................II
INDEX OF AUTHORITIES .................................................................................. IV
STATEMENT REGARDING ORAL ARGUMENT ...................................................... 1
STATEMENT OF THE CASE ............................................................................... 2
STATEMENT OF PROCEDURAL HISTORY ............................................................ 3
GROUND FOR REVIEW ..................................................................................... 4
When a motion for new trial is supported by sworn affidavits
alleging matters indeterminable from the record, the trial court
must conduct a hearing. Vargas timely filed a motion for new
trial, supported by sworn affidavits alleging facts that, if true,
would entitle him to relief. Did the court of appeals err by
dismissing Vargas’s appeal of the denial of a hearing on his
motion for new trial?
STATEMENT OF FACTS .................................................................................... 4
ARGUMENT .................................................................................................... 8
The court of appeals erred by dismissing Vargas’s appeal
instead of abating or remanding the case to the trial court to
conduct an evidentiary hearing on his motion for new trial.
CONCLUSION AND PRAYER FOR RELIEF .......................................................... 13
CERTIFICATE OF SERVICE.............................................................................. 15
CERTIFICATE OF COMPLIANCE ....................................................................... 15
ii
TABS ...............................................................................................................
1. Original Motion for New Trial (filed Aug. 22, 2014)
2. Defendant’s Second Request for Hearing (filed Sept. 19, 2014)
3. First Amended Motion for New Trial (Oct. 3, 2014)
4. Notice of Appeal
5. Order to Show Cause (Oct. 28, 2014)
6. Court of Appeals Opinion (issued Nov. 20, 2014)
7. Motion for Rehearing (filed Dec. 31, 2014)
8. Denial of Motion for Rehearing (Jan. 22, 2015)
I NDEX OF A UTHORITIES
Cases
Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) _____________ 13
Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001). _______________ 15
Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005) ______________ 13
Guidry v. State, 132 S.W.3d 611 (Tex. App.—Houston [1st Dist.] 2004, no
pet.). _________________________________________________________ 12
Martinez v. State, 74 S.W.3d 19 (Tex. Crim. App. 2002) _______________ 9, 14
Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010) ________________________ 10
Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) ___________________ 9
State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993) ________________ 8
Strickland v. Washington, 466 U.S. 668 (1984), _________________________ 10
Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013) (citation omitted) __________ 15
United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008) ____________________ 10
Vargas v. State, No. 11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland Nov. 20, 2014,
pet. filed) (mem. op., not designated for publication) ____________ 3, 7, 13
Wilbur v. City of Mt. Vernon, 989 F.Supp.2d 1122, 1124 (W.D. Wash. 2013) 11
Rules
TEX. R. APP. P. 43.6 ________________________________________________ 12
TEX. R. APP. P. 44.4 ________________________________________________ 12
TEX. R. APP. P. 66.3 _________________________________________________ 8
TEX. R. APP. P. 68.1 _________________________________________________ 1
iv
TEX. R. APP. P. 68.4(d) ______________________________________________ 1
TEX. R. APP. P. 9.4 _________________________________________________ 15
TEX. R. APP. P. 9.5(d) ______________________________________________ 14
Other Authorities
ABA Standards Relating to Criminal Justice, § 4 ____________________ 9, 10
Dottie Carmichael et. al., Guidelines for Indigent Defense Caseloads, A Report to
the Texas Indigent Defense Commission, TEXAS A&M UNIV. PUB. POLICY
RESEARCH INST. (2015), available at
http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf _______ 6
No. __________________
__________________________________________
In the Texas Court of Criminal Appeals
_______________________________________
Victor Vargas
Appellant,
v.
The State of Texas
Appellee.
_______________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW APPELLANT, VICTOR VARGAS, by and through his counsel
and pursuant to TEX. R. APP. P. 68.1, and presents this Petition for
Discretionary Review, and would show this Honorable Court the
following:
S TATEMENT R EGARDING O RAL A RGUMENT
Pursuant to TEX. R. APP. P. 68.4(d), Vargas waives oral argument
because he is simply asking this Court to summarily grant this petition and
remand the case with instructions to abate the case to the trial court to hold
1
a hearing on Vargas’s timely filed, properly supported, motion for new
trial.
S TATEMENT OF THE C ASE
Vargas was indicted for possession of a controlled substance less than
one gram. Represented by court appointed counsel, Artie Aguilar, Vargas
entered a guilty plea. After Vargas received a probated felony sentence,
undersigned counsel agreed to represent Vargas pro bono to file a motion
for new trial attempting to reverse the guilty plea because it was both
involuntary and the result of ineffective assistance of counsel. Tab #1, Ex.
A, Aff. of Victor Vargas. Despite a motion for new trial and amended
motion for new trial (both supported by affidavits alleging facts that, if
found true by the trial court, would entitle Vargas to relief), the trial court
refused to conduct a hearing, allowing the motion to overrule by operation
of law.
2
S TATEMENT OF P ROCEDURAL H ISTORY
After the trial court allowed Vargas’s motion to overrule, Vargas filed
notice of appeal to the Eleventh Court of Appeals.1 Specifically, Vargas
sought to appeal the: “(1) denial of a hearing on his motion for new trial,
and (2) the trial court’s implicit legal ruling on his motion for new trial.”
Tab #4. In an unpublished opinion, the Eleventh Court of Appeals
dismissed Appellant’s appeal on November 20, 2014. Tab #6, Vargas v.
State, No. 11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland Nov. 20, 2014, pet. filed)
(mem. op., not designated for publication). Vargas filed a motion for
rehearing on December 31, 2014. Tab #7. That motion was denied on
January 22, 2015. Tab #8. This petition for discretionary review will be
timely filed if filed on or before February 23, 2015.
1
The Court of Appeals granted an extension of time to file the notice of appeal.
See also Dottie Carmichael et. al., Guidelines for Indigent Defense Caseloads, A Report to
2
the Texas Indigent Defense Commission, TEXAS A&M UNIV. PUB. POLICY RESEARCH INST.
3
G ROUND FOR R EVIEW
When a motion for new trial is supported by sworn affidavits
alleging matters indeterminable from the record, the trial court
must conduct a hearing. Vargas timely filed a motion for new
trial, supported by sworn affidavits alleging facts that, if true,
would entitle him to relief. Did the court of appeals err by
dismissing Vargas’s appeal of the denial of a hearing on his
motion for new trial?
S TATEMENT OF F ACTS
Following his guilty plea, Vargas timely filed a motion for new trial
supported, inter alia, by affidavits from Vargas himself and his mother,
Darcy Vargas. Tab #1. In his affidavit Victor Vargas reveals how the stop of
his vehicle and continued detention of him appeared to be illegal, as well
as how Aguilar (court-‐‑appointed trial counsel) failed to discuss any options
other than to plead guilty with him:
• “The officer then pulled me over because he believed that I ‘looked
fatigued.’”
• “After my November 2012 habeas hearing, I was unable to get in contact
with Artie again until February of 2014.”
• “From my original arrest on August 9, 2012, until July 23, 2014, almost
all of the contact that I have ever had with Artie has been inside the
court room. I have never seen any discovery (police reports, lab report,
or video). I do not know if or when Artie got the discovery.”
4
• “Artie told me that I had no choice but to either take the final deal or go
to trial and get the maximum sentence. I asked him about whether the
stop was legal. I asked him about the lab report and whether there was
even enough to charge me. Artie never discussed any options other than
pleading guilty with me.”
• “Had Artie explained anything to me about the suppression hearing or
affirmative links, and/or if I had had the opportunity to view the video
and see the reports, I would not have pled guilty.”
Tab 1, Exhibit A, Aff. of Victor Vargas. In the conclusion and prayer of his
motion, Vargas asked the court to “set this matter for an evidentiary
hearing,” and then grant his motion. Tab 1.
Almost a month later, the trial court still had not set Vargas’s motion
for a hearing. Vargas filed a second request for the trial court to set a
hearing. Tab #2.
Forty-‐‑two days after filing his original motion for new trial, Vargas
filed an amended motion for new trial. Tab #3, First Amended Motion for
New Trial. This amended motion was supported by all of the same exhibits
from his original motion, as well as the following additional exhibits: (1)
Contract for Indigent Defense in the 106th Judicial District Court of Texas
(file marked December 9, 2013); (2) Letter from Judge Schildknecht to Joel
Lieurance, Policy Monitor at TIDC (July 19, 2013); (3) Texas Indigent
5
Defense Commission; (4) Review of Gaines County’s Indigent Defense
Systems (June 11, 2013); (5) Affidavit of Philip Wischkaemper; and (6)
Affidavit of Frank Sellers. In his affidavit, Wischkaemper, a 26-‐‑year veteran
criminal lawyer who is responsible for training for the Lubbock County
Private Defender’s Office, opined that if the allegations in Vargas’s
affidavit were true, it would constitute ineffective assistance of counsel.
Tab 3, Exhibit H. Wischkaemper also stated that Aguilar’s 2012 caseload —
254 appointed felony cases that represented 60% of his practice — far
exceeded the Lubbock Private Defender’s Office’s limit of 65 clients per
appointed attorney. Id. 2 Finally, undersigned’s affidavit detailed how
Aguilar “declined” to speak with him or provide an affidavit about these
allegations on multiple occasions. Tab 3, Exhibit I.
See also Dottie Carmichael et. al., Guidelines for Indigent Defense Caseloads, A Report to
2
the Texas Indigent Defense Commission, TEXAS A&M UNIV. PUB. POLICY RESEARCH INST.
(2015), available at http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf.), at 34
(concluding that for reasonably effective representation attorneys should carry an
annual full-‐‑time equivalent caseload of no more than the following: 236 Class B
Misdemeanors, 216 Class A Misdemeanors, 174 State Jail Felonies, 144 Third Degree
Felonies, 105 Second Degree Felonies, or 77 First Degree Felonies).
6
In the face of these uncontroverted affidavits and multiple requests,
the trial court allowed the motion to overrule by operation of law. Vargas
filed notice of appeal to the Eleventh Court of Appeals. Despite Vargas’s
notice of appeal essentially notifying the court that all he wanted was a
hearing, not a full review of the merits, the appellate court asked Vargas to
show cause as to why he should be allowed to continue his appeal:
Upon reviewing the trial court’s Certification of
Defendant’s Right of Appeal, it indicates Appellant waived his
right of appeal. Appellant is requested to provide this Court
with a response, in writing, showing grounds to continue this
appeal. If the response is not filed on or before November 5,
2014, the appeal may be dismissed. Tab #5.
While in the midst of a four-‐‑week capital murder jury trial,
undersigned overlooked that portion of the court’s request. Tab #7, Motion
for Rehearing. The court then dismissed Vargas’s appeal claiming he had
waived his right to an appeal at his guilty plea. Tab #6, Vargas v. State, No.
11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland Nov. 20, 2014, pet. filed) (mem. op.,
not designated for publication). Vargas filed a motion for rehearing asking
the court to reinstate his appeal. Tab #7. After the court of appeals refused
7
to reinstate Vargas’s appeal to remand the case to the trial court to conduct
a hearing, Vargas filed this petition.
For the reasons that follow, the Court of Appeals erred by dismissing
Vargas’s appeal without remanding or abating the case to the trial court to
conduct an evidentiary hearing on his motion for new trial. Therefore,
discretionary review is warranted pursuant to Rules 66.3(a), 3 66.3(c), 4
66.3(d),5 and 66.3(f).6
A RGUMENT
The court of appeals erred by dismissing Vargas’s appeal
instead of abating or remanding the case to the trial court to
conduct an evidentiary hearing on his motion for new trial.
The standard of review for “[b]oth the granting and denying of a
motion for new trial rest within the discretion of the trial court, and
“[W]hether a court of appeals'ʹ decision conflicts with another court of appeals'ʹ
3
decision on the same issue.”
“[W]hether a court of appeals has decided an important question of state or federal
4
law in a way that conflicts with the applicable decisions of the Court of Criminal
Appeals . . . .”
“[W]hether a court of appeals . . . appears to have misconstrued a statute, rule,
5
regulation, or ordinance.”
“[W]hether a court of appeals has so far departed from the accepted and usual
6
course of judicial proceedings, or so far sanctioned such a departure by a lower court, as
to call for an exercise of the Court of Criminal Appeals'ʹ power of supervision.”
8
appellate courts ordinarily will not reverse that decision unless the trial
court has abused its discretion.” State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.
Crim. App. 1993). When a defendant’s motion for new trial raises issues
“not determinable from the record, which could entitle him to relief, the
trial judge abuses [his or her] discretion in failing to hold a hearing.”
Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). The purpose of
the hearing is to “fully develop the issues raised in the motion.” Id. To
obtain a hearing, “the motion must be supported by an affidavit
specifically showing the truth of the grounds for attack.” Id. Not every
element must be established “but rather must merely reflect that
reasonable grounds exist for holding that such relief could be granted.” Id.;
Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (“. . . affidavit is
not required to reflect every component legally required to establish relief,
but the motion for new trial or affidavit must reflect that reasonable
grounds exist for holding that such relief could be granted.”).
Vargas made multiple allegations that would entitle him to relief for
Aguilar’s ineffective assistance of counsel:
9
• Aguilar’s failure to conduct an “appropriate investigation and study of
the case,” ABA Standards Relating to Criminal Justice,7 § 4-‐‑6.1(b) (1991)
[hereinafter “ABA Standards”].
• Aguilar’s failure to “provide the [Vargas with] an understanding of the
law in relation to the facts,” United States v. Cavitt, 550 F.3d 430, 440-‐‑41
(5th Cir. 2008);
• Aguilar’s failure to review or discuss discovery with Vargas;
• Aguilar’s failure to file a motion to suppress;
• Aguilar’s intentional overstatement of the penalty Vargas would face if
he opted to go to trial (the maximum prison sentence), which caused
“undue influence on [Vargas’s] decision” to plead guilty. ABA
Standards § 4-‐‑5.1;
• Aguilar’s advising Vargas to plead guilty before “appropriate
investigation and study of the case had been completed,” ABA
Standards § 4-‐‑3.2;
• All of the above was likely the result of Aguilar’s excessive caseload,
which systematically prevented him from being able to provide
constitutionally effective assistance of counsel.8
The Supreme Court has made clear that the inquiry into whether an attorney
7
performed deficiently under Strickland v. Washington, 466 U.S. 668 (1984), “is necessarily
linked to the legal community’s practice and expectations.” Padilla v. Kentucky, 130 S. Ct.
1473, 1482 (2010). Accordingly, the American Bar Association standards provide
invaluable guidance on practice and expectations in representing criminal defendants.
See id. Using these standards, it’s equally clear that Aguilar’s representation fell below
an objective standard of reasonableness under then “prevailing professional norms.”
Strickland, 466 U.S. at 688.
See Wilbur v. City of Mt. Vernon, 989 F.Supp.2d 1122, 1124 (W.D. Wash. 2013)
8
(holding that indigent defendants were “systematically deprived of the assistance of
10
• Finally, “Had Artie explained anything to me about the suppression
hearing or affirmative links, and/or if I had had the opportunity to view
the video and see the reports, I would not have pled guilty. Instead, I
would have insisted on going to trial — regardless of the outcome.” Tab
1, Ex. A.
Vargas’s motion for new trial and supporting exhibits were
“sufficient to put the trial court on notice that reasonable grounds existed
to believe that trial counsel'ʹs representation may have been ineffective.”
Guidry v. State, 132 S.W.3d 611, 613 (Tex. App.—Houston [1st Dist.] 2004,
no pet.). The Court of Appeals, however, appears to have concluded that
Vargas was seeking review of the substantive issues in his case, as opposed
to a ruling on the denial of a hearing. See Wallace v. State, 106 S.W.3d 103,
108 (Tex. Crim. App. 2003) (discussing the difference between error in
denying a motion for new trial and error in denying a hearing on the
motion).
counsel at critical stages of the prosecution and that municipal policymakers have made
deliberate choices regarding the funding, contracting, and monitoring of the public
defense system that directly and predictably caused the deprivation,” where public
defenders were saddled with caseloads comparable to Aguilar’s. See also id. (calling
City’s indigent defense a “meet and plead” system).
11
The Court of Appeals’ misunderstanding of the relief Vargas was
seeking — initially, a hearing on his motion for new trial — becomes more
apparent when looking to the cases cited in its opinion dismissing the
appeal. Tab #6, Vargas v. State, No. 11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland
Nov. 20, 2014, pet. filed) (mem. op., not designated for publication (citing
Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Dears v. State,
154 S.W.3d 610, 612 (Tex. Crim. App. 2005)). Chavez dealt with an appellate
waiver following a negotiated plea bargain. 183 S.W.3d at 680. Dears
involved the right to appeal from a negotiated probation-‐‑revocation plea.
154 S.W.3d at 612. Both cases sought review of substantive claims on direct
appeal, as opposed to review of procedural defects. Neither case involved a
defendant’s right to a hearing on a properly filed, properly supported
motion for new trial.
Upon receiving Vargas’s notice of appeal seeking review of the
“denial of a hearing on his motion for new trial,” the Court of Appeals
should have abated or remanded the case for a hearing. See TEX. R. APP. P.
43.6 (providing that “court of appeals may make any other appropriate
12
order that the law and the nature of the case require”); TEX. R. APP. P. 44.4
(providing that if trial court'ʹs error or failure to act prevents proper
presentation of case on appeal and trial court can correct its error or failure
to act, court of appeals “must not affirm or reverse,” but “must direct the
trial court to correct the error”). Accordingly, this Court should summarily
grant this petition, reverse the lower court’s dismissal, and remand this
case “with instructions to abate the appeal and remand the cause to the
trial court to conduct a hearing on appellant'ʹs motion for new trial.”
Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002).
C ONCLUSION AND P RAYER FOR R ELIEF
The United States Supreme Court recently criticized Texas’s appellate
scheme for the difficulty it causes defendants wanting to raise ineffective
assistance claims on direct review. Trevino v. Thaler, 133 S. Ct. 1911, 1915
(2013) (citation omitted) (“The structure and design of the Texas system in
actual operation, however, make it ‘virtually impossible’ for an ineffective
assistance claim to be presented on direct review.”). And over a decade
ago, this Court commented that claims of ineffective assistance and
13
involuntary guilty pleas should be raised through motions for new trial so
that they “may be supported by information from sources broader than the
appellate record.” See Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App.
2001). By dismissing Vargas’s appeal without ever giving him the benefit of
a hearing on his motion, the Eleventh Court of Appeals has re-‐‑affirmed the
Supreme Court’s criticism — even when done correctly, review of an
ineffective assistance claim is seemingly impossible.
WHEREFORE, PREMISES CONSIDERED, Vargas prays this Court reinstate
his appeal and remand this case to the Court of Appeals with instructions
that would allow Vargas a hearing on his motion for new trial.
Respectfully submitted,
_________________________
Frank Sellers
Texas Bar No. 24080305
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
P: 806.771.0700
F: 806.763.8199
14
E: frank@hurleyguinn.com
Attorneys for Appellant
C ERTIFICATE OF S ERVICE
Pursuant to TEX. R. APP. P. 9.5(d), a copy of the foregoing was served
on opposing counsel viaȱȱ February 23, 2015.
_________________________
Frank Sellers
C ERTIFICATE OF C OMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify
that this brief contains 2,685 words (excluding the caption, identification of
the parties, index, list of authorities, signature, certification, and certificate
of compliance). This is a computer-‐‑generated document created in
Microsoft Word, using 14-‐‑point typeface for all text, except for footnotes
which are in 12-‐‑point typeface. In making this certificate of compliance, I
am relying on the word count provided by the software used to prepare
the document.
_________________________
Frank Sellers
15
T ABS
1. Original Motion for New Trial (filed Aug. 22, 2014)
2. Defendant’s Second Request for Hearing (filed Sept. 19, 2014)
3. First Amended Motion for New Trial (Oct. 3, 2014)
4. Notice of Appeal
5. Order to Show Cause (Oct. 28, 2014)
6. Court of Appeals Opinion (issued Nov. 20, 2014)
7. Motion for Rehearing (filed Dec. 31, 2014)
8. Denial of Motion for Rehearing (Jan. 22, 2015)
Tab #1
Original Motion for New Trial (filed Aug. 22, 2014)
FILED IN
11th COURT OF APPEALS
EASTLAND, TEXAS
10/28/2014 5:39:00 PM
SHERRY WILLIAMSON
Clerk
08/22/2814 16:41 8067638199 HURLEY & GUII'f'.l PAGE 83/27
never showed him the video of the stop, and never showed him the lab report. Because
Vargas had legitimate defenses to the stop and the possession allegation that could have
been raised before and during trial, this Court must grant him a new trial.
Ill. ARGUMENT AND AUTHORITIES
A. Facts
Vargas was arrested on August 9, 2012 by Texas Department of Public Safety
Trooper Wally Garza for possession of a controlled substance less than one gram. He
was indicted on February 13, 2013. TI.1e Court appointed Aguilar to represent Vargas.
Prior to pleading guilty, Vargas was told only that he had received an offer of three
years probation, and that if he did not take that, he would receive five years probation.
Aguilar never showed Vargas any discovery whatsoever. Vargas pled guilty.
The discovery ir1. this case was crucial. It revealed that Vargas was stopped because
he travelled on the improved shoulder of Highway 84, and the trooper wanted to
"check on the conditions of the driver." Exhibit C at 2. After. pulling over, Trooper
Garza tells Vargas he will receive a wamjn_g for driving on the white line. Video at 6:56.
Nevertheless, Garza continued to detain Vargas and ask him questions completely
unrelated to the initial reason for the stop. Garza eventually asked for, and obtained,
consent to search. A drug dog subsequently arrived and did not appear to alert on
anything in the vehicle. Apparently pursuant to the consent, however, Trooper Garza
and another officer. searched the trunk and found baggies of trace residue inside.
08/22/2014 16:41 80676381'3'3 HURLEY & GUINN PAGE 04/27
Vargas and his mother gave detailed affidavits explaining Aguilar's performance,
professionalism, and behavior during his representation. For the sake of brevity, those
affidavits are included as exhibits and incorporated with all other exhibits by reference.
Importantly, as explained in his affidavit, Vargas did not want to plead guilty to this
charge. Unfortunately, he felt he had no choice.
B. Standard of Review
A defendant may raise ineffective assistance of counsel in a motion. for new trial,
even though it is not a ground specifically enumerated in TEx. R. APP. P. 21.3. State v.
Provost, 205 S.W.3d 561, 566 (Tex. App.-Houston [14th Oist.] 2006, no pet.). The trial
court's discretion in granting new trials "is almost the only protection to the citizen
against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, [and
the trial] Court should never hesitate to use that discretion whenever the ends of justice
have not been attained by those verdicts." Mullins v. State, 37 Tex. 337, 339-40 (1872-1873)
(emphasis added)i State v. CYlJnzales, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993). A trial
court does not abuse its discretion unless the trial court granted a new trial in an
arbitrary or unreasonable manner without reference to any guiding rules or principles.
See State v. LaSalle, 135 S.W.3d 94, 96 (Tex. App.-Corpus Christi 2003, no pet.).
C. Law on lne.ffecti.ve Assistance of Counsel
The Sixth and Fourteenth Amendments to the United States Constitution, as well as
Article I, Section 10 of the Texas Constitution, guarantee each defendant the right to the
08/22/2014 15:41 8057538199 I-IJRLEY & GUINN PAGE 05/27
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Cri.m. App. 1985). The
guarantee of effective assistance of counsel embodied in the Sixth Amendment now
extends to the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). This
guarantee includes the "effective assistance of competent counsel" before dedding
whether to plead guilty. Padilla v. Kentucky, 559 U.S. 356, 364 (2010). To prevail on a
claim of ineffective assistance of counsel Defendant must first show that counsel's
performance fell below an objective standard of reasonableness, and that there is a
reasonable probability tha.t, but for the a.ttom.ey's deficiency, the result of the
proceeding would have been different. See .Eddie v. State, supra, 100 S.W.3d at 442, citing
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Even a single error on counsel's
part can warrant a finding of prejudice. Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.
App. 2005).
Proving prejudice only requires showing that the result of the proceeding would
have been different by less than a preponderance of the evidence. Strickland, 466 U.S. at
694-96 ("The result of a proceeding can be rendered unreliable, and hence, the
proceeding itself unfair, even if the errors of counsel cannot be shown by a
preponderance of the evidence to have determined the outcome."); Po1·ter v. McCollum,
130 S.Ct. 447, 4.55-456 (2009) (per curiam) ("reasonable probability" standard requires
neither certainty nor showing that "more likely than not" diiferent outcome would have
08/22/2014 16:41 8067638199 1-URLEY & GUINN PAGE €16/27
occurred at guilt-innocence stage). Because this case deals with a guilty plea, "prejudice
occurs if there is a reasonable probability that, but for counsel's errors, the defendant
would not have pleaded guilty and would have insisted on going to trial." United States
v. juarez, 672 F.3d 381, 385 (5th Cir. 2012) (citations and quotations omitted). For a guilty
plea to be valid, it must have been a voluntary and intelligent choice among the
alternative courses of action available. Hill v. Lockhart, 474 U.S. 52, 56 (1985).
D. Vargas's Claim. Meets Both Prongs of the Strickland Test
Deficient Performance
To establish deficiency, Defendant must show that trial counsel was "not
functioning as the counsel guaranteed the defendant by the Sixth Amendment." juarez,
672 F. 3d at 386. This requires the Court to determine whether the representation fell
below an objective standard of reasonableness under then "prevailing professional
norms." Strickland, 466 U.S. at 688. This inquiry "is necessarily linked to the legal
community's practice and expectations." Padilla v. Kentucky, 130 5. Ct. 1473, 1482 (2010).
As the Supreme Court has long recognized, the American Bar Association standards
provide invaluable guidance on practice and expectations in representing criminal
defendants. See id.
The ABA Standards applicable here illustrate precisely why Aguilar's
performance was deficient. The ABA Standards relating to defense counsel's duty to
investigate provide:
as/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 07/27
Defense counsel should conduct a prompt investigation of the
circumstances of the case and explore all avenues leading to facts relevant
to the merits of the case and the penalty in the event of conviction. The
investigation should include efforts to secure information in the
possession of the prosecution and law enforcement authorities. The duty
to investigate exists regardless of the accused's admissions or statements
to defense counsel of facts constituting guilt or th.e accused's stated desire
to plead guilty.
ABA Standards Relating to Criminal Justice, § 4-4.l(a) (1991} (hereinafter "ABA
Standards"]. In the context of a guilty plea, the ABA Standards further provide, "Under
no circumstances should defense counsel recommend to a defendant acceptance of a
plea unless appropriate investigation and study of the case has been completed,
including an analysis of controlling law and the evidence likely to be introduced at
trial." ABA Standards§ 4-6.1(b); see also id. § 14-3.2 (1997) ("Defense counsel should not
recommend to a defendant acceptance of a plea unless a.ppropriate investigation and
study of the case has been completed."). Going further, the ABA Standards also set out
what defense counsel should do in advising a client after such an investigation has been
completed:
(a) After informing himself or herself fully on the facts and the law,
defense counsel should advise the accused with complete candor
concerning all aspects of the case, including a candid estimate of the
probable outcome.
(b) Defense counsel should not intentionally understate or overstate
the risks, hazards, or prospects of the case to exert undue inf1uence on the
accused's decision as to his or her plea.
ld. § 4-5.1 (emphasis added).
~8/22/2~14 16:41 8~67638199 HURLEY & GUINN PAGE EIB/27
Here, Aguilar's performance was deficient. He did not advise Vargas of anything
other than what his guilty-plea options were. He never disrussed the facts with him.. No
notes appear in the file. He never discussed or filed a motion to suppress. He never
even showed Vargas any of the discovery. The Fifth Circuit has made clear, this is not
acceptable conduct for defense attorneys. Moore v. Johnson, 185 F.3d 244, 261 (5th Cir.
1999) ("The Court is, therefore, not required to condone unreasonable decisions
parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of
counsel when it appears on the face of the record that counsel made no str.ategic
decision at all."). No justification exists for not discussing the facts with your client. 'This
Court should not condone or invent one.
Finally, much like "informed consent" in the medica1 field, "[c]ounsel must
ensure that guilty pleas are entered only as an informed and voluntary choice, by
actually and substantially assisti:n.g the defendant in deciding whether to plead guilty."
United States v. Juarez, 672 F.3d 381, 388 (5th Cir. 2012). Actual, substantial assistance can
only happen when ''appropriate investigation and study of the case has been
completed, including an analysis of controlling law and the evidence likely to be
introduced at trial." ABA Standards§ 4-6.l(b). Indeed, it is the lawyer's job to,
provide the accused a.n understanding of the law in rela.tion to the facts.
The advice he gives need not be perfect, but it must be reasonably
competent. His advice should permit the accused to make an informed
and conscious choice. In other words, if the quality of counsel's service
falls below a certain minimum level, the client's guilty plea cannot be
knowing and voluntary because it will not represent an infonned choice.
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 09/27
And a lawyer who is not famil.ia_r with the facts and law relevant to his
client's case cannot meet that required minimal level.
United States v. Cavitt, 550 F.3d 430, 440-41 (5th Cir. 2008) (citations and quotations
omitted). Aguilar's performance was deficient.
Prejudice
The second part of the Strickland analysis requires Vargas to show that Aguilar's
performance prejudiced him. Vargas must demonstrate that there is a. "reasonable
probability" that but for Aguilar's errors, he "would not have pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). A reasonable
probability is "a. probability sufficient to undermine confidence in the outcome.''
Strickland v. Washington, 466 U.S. 668, 694 (1984). This is more than a mere possibility
but "less than a preponderance of the evidence that the error affected the trial." United
States v. juarez, 672 F.3d 381, 388 (5th Cir. 2012) (citation omitted).
Vargas had legitimate potentially exonerating defenses. First, the stop was
questionable at best, if not outright illegal. Second, the continued detention of Vargas
was unreasonable. United States v. Macias, 658 F.3d 509, 522 (5th Cir. 2011) (holding that
trooper's asking questions unrelated to initial reason for the stop illegally prolonged
traffic stop). TI1itd, the fact that the "affirmative links" doctrine was never discussed
with Vargas is devastating, especially given that multiple people had access to an.d
drove Vargas's vehicle. Finally, Vargas was not actually in possession of any drugs. No
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 10/27
proof existed that he knew he possessed anything other than empty baggies containing
"trace," immeasurable amounts of a controlled substance.
Vargas is not required to prove his innocence, or even that he would have received a
better outcome. Rather, he is only required to prove tha.t he would not have actually
pled guilty had he been made aware of his options by a standard less than a
preponderance of the evidence. Varga.s's affidavit makes clear that he would not have
pled guilty and far exceeds this standard. Vargas was prejudiced.
E. Vargas's ineffective assistance claim was not waived by his guilty plea.
Vargas anticipates the State will argue that any claims of ineffective assistan.ce of
counsel were waived when he pled guilty to the offense, but this is no longer the law.
The Supreme Court has recently addressed ineffective assistance of counsel in the
context of guilty plea.s. Padilla v. Kentucky, 559 U.S. 356 (2010); Missouri v. Frye, 132 S.Ct.
1399 (2012). The Padilla court explained that, "the negotiation of a plea bargain is a
critical phase of litigation for purposes of the Sixth Amendment right to effective
assistance of coun.sel." Padilla, 559 U.S. at 373. There, the Court held that an attorney's
failure to properly advise the defendant of collateral immigration consequences
sterruning from a guilty plea constituted ineffective assistance.Jd. at 375. In doing so the
Court necessarily overruled prior authority holding that, "once a guilty plea has been
entered, all nonjurisdictional defects in the proceedings against a defendant are
waived." Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Any remaining doubt over
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 11/27
the calculus of the Court's ruling in Padilla was removed by Frye: "[Padilla] also rejected
the argument made by petitioner in this case that a knowing and voluntary plea
supersedes errors by defense counsel." Frye, 123 S.Ct. at 1406. In other words, the
Supreme Court now routinely rejects Estelle's logic that if a plea is "voluntary, it follows
that claims of ineffectiveness unrelated to the guilty plea are waived." Estelle, 711 F .2d
at 682 (denying ineffective assistance claims based on failure to investigate prior to
a.dvising defendant to plead guilty). And the Fifth Circuit has followed suit. United
States v. Juarez, 672 F.3d 381 (5th Cir. 2012).
In Juarez, the Court held that an attorney's failure to investigate a potential
defense was not cured by a subsequent guilty plea. ld. at 389. There, Juarez pled guilty
both to lying about his U.S. citizenship on an application to purchase fireanns and to
illegal re-entry. Id. at 384. Although Juarez's mother was a naturalized citizen, Juare~'s
trial counsel never advised him that derivative citizenship was a defense to both of
these offenses.Id. at 385-86. Trial counsel also "did not know that Juarez could be a U.S.
citizen as other people did not inform him of this possibility." ld. at 385. Although the
legal interpretation of whether Juarez was able to qualify for the derivative citi.zenship
defense was unsettled, the Fifth Circuit held that at the time of Juarez's pleas, "a
derivative citizenship defense was plausible." Jd. at 387. The Juarez court concluded,
Juarez's guilty pleas were not entered knowingly or voluntarily becau.se
[trial counsel] advised him without investigating derivative citizenship.
"[A defendant) who does not receive reasonably effective assistance of
08/22/2014 16:41 8067638199 HURLEY & allNN PAGE 12/27
counsel in connection with his decision to plead guilty cannot be said to
have made that decision either intelligently or voluntarily."
Id. at 390 (quoting Mason v. Balcom, 531 F.2d 717, 725 (5th Cir.1976)).
Much like trial counsel in Juarez had a duty to investigate the facts and law
underlying a "plausible" defense, Aguilar had a duty to investigate the facts and law
underlying Jegitimate, potentially exonerating defenses for Vargas. Because Aguilar
failed to do this - a decision contrary to established federal precedent and
unsupported by any reasonable argument - Vargas was denjed constitutionally
effective assistance of counsel.
Ill. CONCLUSION & PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays tha.t th.is Court set this
matter for an evidentiary hearing and at the close thereof, grant this motion for new
tr.i.al, and vacate the judgment and sentence in this case.
Respectfully submitted,
Texas Bar No. 24080305
1805 13th Street
Lubbock, Texas 79401
P: 806.771.0700
F: 806.763.8199
ATIORNEYS FOR DEFENDANT
08/22/2014 16:41 8067638199 ~EV & GUII-f'.l PAGE 13/27
Certificate of Service
I certify that today, August 22, 2014, a. copy of the foregoin. mailed and faxed
to the Dawson County District Attorney's Office.
Certificate of Presentment
I certify that today, August 22, 2014, a. copy of the foregoing was ed and
emailed to the Judge of this Court, along with a blank Order S,ertJrn!Z:;r-u~
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 14/27
Exhibit A
Affidavit of Victor Vargas
08/22/2014 15:41 8857538199 H~LEV & GU!i'l'l PAGE 15/27
AFFIDAVIT
THE STATE OF TExAs §
. §
COUNTY OF ~0\:to(\ ~ §
Before me, the undersiped authority, personally appeared Victor Vargas. who upon his oath
deposed and stated the following:
My name is Victor Varps. I am over the age of 18. of sound mind. competent to make this
affidavit, and bave pel'JOD8Ilmowledge of the filets below. I have prepared this affidavit with the
help of my new lawyer, Frank Sellers.
I was driving from Lubbock, TX to San Angelo, TX on Aupst 9, 2012. I was in a lowered
Cadillac Coupe Deville that had previously been used by my broCh« and mend. As I was drMng
on Highway 87, I noticed an officer on the other side of the road. The officer drove up beside me
and remained db:ectly next to my vdricle for a short period of1ime.. The oftic:er then pulled me
over because lv: believed that 1 "looked fatiped." After the officer explained to me that I would
r=eive a warning and rcccivina the same, the officer asked tbr COIIIeDt to search. lbihking there
was nothing to hide, I gave the officer dris consent.
There were three to four large suitcase-type bags located in the trunk of the v~e. Small
plastic baggies WCR fouud in one bag tbat also c:ontained my tattoo equipment. There were many
clean, wuscd small plastic bagies within this larger bag. Hc»vever, two small mreen baggjes
were mixed in amongst tbe clean baggies. Upon inspecting these two green blgies, tbe officer
del:eeted a tiny amount of what he believed was drug residue on the inside. 1 was then arrested
for felony possession of a COJdrolled. substaDcc less tban 1 gram. I was held in Dawson County
Jail wilh a S10,000 bodd. I was unable to get a bond because I was an out of town traveler and
c:oruJiclaed a flight risk. My ooly option was to wait in jail Uldi1 my attorney and J could sort
everything OUL
While in j~ I received a letter from Artie Aguilar notifYing me that he would be serving as
my court appointed lawyer in this matter. When I received this letter I bed my wife, Crystal
Vargas, conract Artie almost immediately. After many attelnpts, sbe was UDable to reach him.
After about 10 days in jail Crystal tried many 1001e times to oontact Artie, each time was
unsuccessful. Crystal was finally able to reach Artie. But Artie told Crystal that he coutdn•t talk
to her because all the information in my case was confidential.
Other than Artie's first lettr:r, I bad not beard ftom bim in any way while I was in jail. After
almost 90 days I wrote a leaer to Artie, informing bim that I bad not been inc1icted aod that I
wanted to file a writ of habeas corpus. I oevcr received a letter in return from Artie. but two
weeks later received notice that I would be haviDs a bearing for habeas relief. Artie and I were
both present for this hearing. This wu the first tiOle I bad spoken to Artie aside fiom the initial
letter he sent me. bJ November2012, tbejudge granted me habeas reJiefbecause I still had not
yet been indicted. Wrth some stipulations, I was released from jail.
08/22/2014 16:41 8067638199 HJRLEY & GUINN PAGE 16/27
After my release, I called and sent letters to Artie hopiDg to resolve my lepl issues. Also, I
was planning 8 move from San Angelo to Houstoa early in 2013 aud knew 1bll--es 8 condition
of my releasc--1 would need to inform both my attomey and the comw:y. Eaeh time I tried to
reach Artie aod iufonn him of this move I was uasuccessfW..I reac:bed Artie's secretuy (his
fidher) multiple times ad left f!N"$98p. Howew:r, I never received a return phooe call or any
letters 1iom Artie. After my November 2012 habeas hearing. I was unable to get iD contact with
Artie again UDtil Febnlll)' of20J4.
In February of2014, I was pulled over for having expired license plates in Houston and
subsequently am:stcd due to a pending indicbneot in Dawson County. Artie bad not notified me
oftbis indiclmeDt. I wa never told that fbi= was even a posst''bility of trial. At this time. my wife
and mother (Datqr Vargas) began adliag Artie's office in hopes of gettiDg more details on the
indictmeqt. Botb were aosuccessful on nearly eYf:rJ 8ltempL My molher was finally able to get a
hold of Artie, only to be cussed out for calling too mucb and tben bung up on.
The oex.t time I saw Attie was in April of20l4 at my arraignment in Dawson County. I was
told that I would need to come back aud enter my plea in June of2014 at 9:00A.M. Although I
now lived in Houston, I drove to Dawson County and arrived at tbe scbcduled time. I was told
that b)' Artie that the District Attorney wasn't ready at 811 and that they didn't have mtything
prepared. This hearing was rescheduled and I was fon:ed to drive all the way back to Houston.
The next court date sbould have been July 2, 2014. Artie told me that be was going to try to
set up a way where I could avoid having to drive in from Houston again. In late June. I received
a call &om Arlie saying tbat I bad RCeived a second plea offer. At this time, I told Artie thall
didn't even knew of the first plea offer. Artie told me that I bad been pnmously been offered a
plea of S years state jail confinement with 4 years of or community supervision. I do not know
wbeo Artie n:cdved the fint offer. Artie told me that be had "already told them that you weren •t
going to Ulke it...
The sc:amd plea oftb- was for 2 years of S1afe jail ccmfinemeat with 3 years of community
supervision. I asked Artie if he would be able to get anything less. He told me that I was lucky
they offered me this btause for a wbile they didn't want to come down from S years. Once
again, l was unaware that prior ncgotiadcms and/or offers had ever laben place. I was 1-.sically
told to take it or leave it oa this 8CCODd offer. Mtie elso told me that he would be able to move
my court date ftom July 2, 2014, to July 23, 2014. After spcaldng with my wife, I decided that I
bad no choice but to take the second offi:r.
From my original arrest on August 9, 2012. until July 23, 2014, almost all of the contact that
I have ever had with Artie IMs been inside the court room. I have never sc:en any discovery
(police ...,rts, lab report, or video). I do not bow if or wbm Artie got tbe discovery.
Throughout tbis ~process, Artie has been nearly impossible to reach.
Artie told me tbat I had no choice but to either take the final deal or go to trial and get the
maximum scntenc:e. I asked him about whether the stop was legal. I asked him about the lab
report aod wbelber there was even enough to daarge me. Artie never discussed any options other
than pleading guilty with me.
Alllda.U of' VIdor va...-- hie 2
08/22/2014 16:41 8067638199 1-il.RLEY & GUINN PAGE 17/27
While: lcaviag tbe courthouse after my plea, attorney Frank Sella'S overheard my Mom and I
arguiag about the plea deal I bad just bcca fon:ed to take. Mr. Sellers inquired about my limited
knowledge of the facts of my case. He lgreed to help me file a motion for new 1riat without any
c:ostto me.
Mr. Sellers reoeivccl the discowry from Ame. He then sbowal it to me. This was the fimt
time I had seen a police report. lab rqJOrt, and video. He also explaiDed to me that the stop and
consent to search my vehicle appeand to be uneoostitutiooal. He said that dtele were legitimate
defenses that could have been ftlised both before trial in 1iont of the judge at a suppression
heariag, as well as in fioDl oflbe jUI)'. AdditiOD8lly, he explained the legal c:oocept of
"affirmatiw liDks," requirina the State to 1iDk me to anyd:tiog in tbe car becaU9e multiple people
had access to the vehide.
I am not pilty oftbe cbarge I pled guilty to. Had Artie explained anything to me about the
suppression bearing or affinnalive liftks, and/or if I bad bad tbe opportunity to view the video
and see the reports, I would not bave pled guilty.lnsteld, I would have iusisted on go.iDg to trial
-regardless of the outcome.
Subscribed and swom to before me on August li, 2014. by Victor Vargas.
B8/22/2B14 16:41 8B67638199 HURLEY & GJINN PAGE 18/27
Exhibit B
Affidavit of Darcy Vargas
08/22/2014 16:41 8067638199 HURLEY & GJINN PAGE 19/27
AFFIDAVIT
ntE STATE OF TExAs §
§
§
Before 111e, the undersiped authority. personally appeared Darcy Vargas, who upon her oath
deposed end stated the following:
..My name is Darcy Vargas. t am owr the age of 18, of sound mind, competent to make tllis
affidavit, and have pei"SSMM knowledge of the facts below. I have prepared this affidavit with the
help of my son's new lawyer, Frank Sellers.
l, Darcy Varps, have been involved in Ibis case ever since my son Victor was arrested in
Houston and informed that he had a wanant in Dawson County. Prior to the arrest in Houston. I
had called Anie Apilar maybe once or twice before. This previous call was just to notify Artie
that Victor pllllllled to move in with me in Houston. Because nobody was able to a« a hold of
Artie, Victor and 1 decided 1hc best thing to do was to send a letter to his office with the address
of Victor's new residente ill Houston.
After Victor's arrest, I called Artie many times hoping to get some infonnation about the
wammt in Dawson County.l called hisoffic:e 1D811)', many times with no answer. I was often
IIIUlble to leave voicemails because the phone would just keep ring endlessly. After many failed
attempts, I wa fmally able to reach a male who sccmcd to be acting as Artie's sct~£taly. I cannot
recall if this man b)ld me his name or not. I told the sccrc:tary that I needed to speak with Artie
immediatdy because we were not aware Chat a wanant had been issued in Dawson County.
Within a day or two, I spoke with Attie for the first time. He called in the aftemoon aDd
asked what I wan~ to which I said we nJZded information on Victor's cue. Artie responded
that there had been a sealed indictment and that it was not his raponaibility to intbrm V"actor
about it. After a briefoon'ft:tlation about why we weren't made aware ofthe sealed indictment,
Artie fanally asked me, "What do you wantr J araswered that I ji&SC wancecllnfonnation, records,
or anything that could help gel my son out ofjail in Houston. I will never forget his response. He
responded, "Access Denied. Now what do you want?" Once again [ requested 1hc same
infonnation. Artie then said, "Look lady, qui' being a bitch." Shocked by how unprofessional he
was, I responded, "Excuse me? You did not just call me the 8-Word." Artie lhen said, uwell
lady, you heard me,. and hung up the phone on me. I found Ibis diBiespectful conduct particularly
surprisinJ coming ffom a lawyer.
In June of2014, Artie called me and said that I needed to have Victor call him because he
had been gM:n a plea offer. V"ICior called Artie back and was able to get a hold of Artie. This is
when Victor was told of the offer that he eventually acc:eptcd.
Before accepting this plea, neither Victor nor I were able to view any police reports. any lab
reports, or the video of Victor's stop and arrest. I found Mr. Aguilar's behavior ~ble and
of lowest caliber of any professional I have ever dealt with. His lc:gaJ work was not much better."
88/22/2814 16:41 80676381'3'3 HURLEY & GUif'.l'l PAGE 28/27
Subacribed and sworn to before me on August JL 2014. by Darcy Vargas.
08/22/2014 15:41 8057538199 1-fJRLEY & GUINN PAGE 21/27
Exhibit C
Trooper Garza's Report
08/22/2014 15:41 80676381'3'3 f-IJRLEY & Gl.Jl NN PAGE 22/27
• ,..
Q'EXAS DEPARTMENT OF PUBLIC SAFkp TRAFFK:
TEXAS HIGHWAY PATROL DMSION _x_ CRII.tiMfL
OFFENSE REPORT WtOOI.NOTR:AnON
REQUIRED fAAT. 11.27 CCP)
REPORT DATE: 0Bf09/12
FILETm.E INVESnGAnNG OFFICER:
~JWE: Waltf~G
1. Vargas, VIdor James IO-IIt 12989
2. 522 e. 24* street • • .
3. San Angelo, TX 78903 SIOM'IllftE; ~
4. W/M REGIONIDISTRICt • ·
5. APPROVING SUPERVISOR:
SID# Ill# nPEO JMME; Sgt. Jason Anzaldua IOoNR: 10358
10. TX: 29404996 008 1011111984
OTHER:
aqM~-----------------------------
RPT--RE: 1.) Possession ofConlralled Substance in PG-1 < 1gram (SJF)
COMPLETE IF TRAFFIC OFFENSE ANO CHEMICAL TEST IS OFFEREO:
IILOCID
NO ; Vargas, Victor James (DOB 10/11/84)
Requested Analysis: Examine for the presence of Controlled Substances
SubmJsslqn lnfonnaflon:
01: 9x12 yellow envelope on August 13, 2012 by Garza, WaDy VIA Certified Mail 70112970000425712709
Eyldtnce Dascdptlon. Results of Analyafa and lntemretatlon:
01: Property Sealed 9x12 yellow envelope
01.01-AA: Exhlblt#1 Blue zlploc containing white 19Gldue
Contains Methamphetamlne
Trace net weight
1 of 1 Items were sampled for analysis
This report has been electronlcally prepared and approved by:
Marissa SBva
Forensic Scientist
Texas DPS Mfdland Crime Laboratory
ACCREOnEO BVTHEAME!RICAN SOCIE1YOFCRIMEtA80RAnmYOtRSCRmS • tABACCREOl'l'ATIOH BOARD
lllB!lllllmf!IDllODmJllllIDIWllll!IDHllltlil(l(lllfD COURTESY • SERVICE • PROTECTION Page 1-of1
fJGP8 IUl.t2
Exhibit E
Contract for Indigent Defense in the 106th Judicial District Court of Texas
(file marked December 9, 2013)
CoNTRACT FOR INDIGENT DEFENSE
IN
THE 106TH JUDICIAL DISTRICT CoURT OF TEXAS
DAWSON, GAINES, GARZA AND LYNN COUNTIES
I. INTRODUCTION
The county of Dawson ("COUNTY',) and The Law Offices of Arthur Aguilar, Jr.
("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial
District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to
represent indigent criminal defendants in COUNTY. This agreement establishes conditions
under which ATTORNEY will provide legal representation for indigent criminal
defendants in COUNTY.
2. SCOPE OF WORK
ATIO RNEY will provide legal representation for indigent criminal defendants in
COUNTY for felony cases only. Under this contract, a felony will be considered to be any
criminal offense that carries a possible punishment of confinement in excess of one year or
that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
represent only those defendants designated by DISTRICT JUDGE, and no file shall be
opened or appearance made under this contract except by order of DISTRICT JUDGE.
ATIO RNEY shall represent such defendants in the trial court and on direct appeal in any
of the appellate courts to which such case is appealed. Post conviction writs are
extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
elects to pursue the Death Penalty are NOT covered in this contract. This contract does
not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
indigent defendant has a misdemeanor charge as well as a felony charge, ATIO RNEY will
handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
charge is taken into account in determining sentence for the felony offense as provided in
Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the
indigent defendant to be under this contract for only the felony case. ATTORNEY shall
meet qualifications and shall devote time, attention and energies to the performance of
duties under this contract pursuant to the provisions of the I 06th Judicial Districfs Local
Indigent Defense Plan, including but not limited to the qualifications set out in the
Application/Affidavit for the I 06th Judicial District Court Attorney Appointment List.
DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
that the quality and effectiveness of ATTORNEY's representation of defendants is not
compromised and that each defendant is being provided effective representation. If
DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
falling below that which is expected by the Court, DISTRICT JUDGE will make
adjustments to ATTORNEY's caseload. ATIORNEY's caseload under this contract shall
not exceed 400 actual cases over the entire four counties of the 106th Judicial District.
3. CONTRACT PERIOD
This agreement shall commence on January 1, 2014, and shall terminate September 30,
2014, unless terminated earlier by either party. The parties shall have an option to renew
the contract for additional years, and prior to July 1, 2014, the parties will revisit the
contract to consider any desired modifications to the terms and conditions of this contract.
4. CONSIDERATION
The parties agree that if this contract covered the legal representation for indigent criminal
defendants in all four counties of the 106th Judicial District, the total consideration for legal
representation at the trial court level would be $49,500.00 for the nine month contract
period.
The consideration for legal representation at the trial court level under this contract
between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
payable in monthly installments, based on indigent defense provided under the 2013
Contract for Indigent Defense in each of the four counties of the 106th Judicial District.
COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
for COUNTY's pro rata share as follows:
Dawson County $18,062.55 for contract $ 2,006.95 monthly
Gaines County $ 16,844.85 for contract $ 1,871.65 monthly
Garza County $ 9,207.00 for contract $ 1,023.00 monthly
Lynn County $ 5,385.60 for contract $ 598.40 monthly
The above amount is the total consideration to be paid by COUNTY for legal
representation of indigent criminal defendants at the trial court level for all cases opened
during the term of this contract, and ATTORNEY shall furnish at his own cost all
equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
all other trial court expenses except as provided otherwise in this contract.
In consideration for ATTORNEY's appellate representation of COUNTY's indigent
criminal defendants under this contract, COUNTY agrees to pay additional ATTORNEY's
fees for legal services at the rate accepted in this area for such services and approved by
DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for
representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.
COUNTY shall not be obligated for any other additional amount or expenses unless
specifically designated in this agreement or required by law, detailed in the Request to Pay
Counsel, and approved by DISTRICT JUDGE.
If the renewal option is exercised, COUNTY's designated monthly percentage will be
adjusted to reflect the number of COUNTY's cases under the contract in trial court
CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE2
compared to the number of trial court level cases under the contract in the entire 106th
Judicial District during the previous contract.
5. EXPERTS, INVESTIGATORS, AND INTERPRETERS
ATIORNEY will obtain prior approval of expenses for investigation and for experts by
filing a motion in the 106th Judicial District Court, stating the need for such assistance and
the estimated expense. Investigative or expert expenses incurred with prior court approval
shall be reimbursed as provided in the order granting approval. Investigative or expert
expenses incurred without prior approval shall be reimbursed only if necessarily and
reasonably incurred. ATIORNEY will arrange for interpreters when the need exists.
Expenses for interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.
6. CHANGE OF VENUE
If there is a change of venue which moves a case from the boundaries of the 106th Judicial
District, then ATIORNEY will be allowed his actual expenses in regard to lodging, meals,
court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
outside the 106th Judicial District will be paid at the prevailing state rate. All other fees
designated herein will be the responsibility of and paid by the County of original
jurisdiction.
7. ASSIGNMENT
ATIORNEY may employ an associate attorney(s) to assist in representing defendants
under this contract with the prior consent and approval of DISTRICT JUDGE, but only
at ATIORNEY's sole expense. ATIORNEY shall not assign its entire rights under this
contract or delegate the entire performance of its duties under this contract.
8. CONFLICTS
ATIORNEYwillnotifytheofficeofDISTRICTJUDGEassoonasATIORNEYisaware
of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
responsible to set the case for a hearing regarding the ethical conflict for consideration if
deemed necessary by the Court.
9. REPORTS
ATIORNEY shall compile a year-end report giving the number of indigent defendants
served, the number of individual cases handled, the types of cases, the disposition of the
cases handled, and any other reporting information required to be in compliance with the
law. Such report shall identify the cases by county and shall include cases for the other
contracting counties in the 106th Judicial District as well as COUNTY's cases. For approval
and payment, ATIORNEY shall provide itemized interim progress reports to COUNTY
and DISTRICT JUDGE as requested for indigent defense expenditure reports. Payment
shall be made by COUNTY after approval by DISTRICT JUDGE.
CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE3
10. ATTORNEY'S PRIVATE PRACTICE
It is agreed that ATTORNEY may maintain a private practice. It is further agreed and
understood that ATTORNEY's private practice will not interfere in any material manner
with the indigent criminal defense cases provided for in this contract.
11. TERMINATION
If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
majority vote of the Commissioners Court of COUNTY. Either party may terminate with
90 days notice by Certified Mail to the other party. ATTORNEY shall complete all cases
that are open as of the date of the termination notice unless relieved or replaced by
DISTRICT JUDGE.
12. AMENDMENTS
Any alterations, additions or deletions in the terms and conditions of this contract shall be
by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
and the Commissioners Court of COUNTY.
13. SEVERABILITY
If any provision of this contract is construed to be illegal or invalid, such construction will
not affect the legality or validity of any of its other provisions. The illegal or invalid
provision will be deemed severable and stricken from the contract as if it had never been
incorporated herein, but all other provisions will continue.
14. SURVIVALOFTERMS
Termination of this contract for any reason shall not release either party from any liabilities
or obligations set forth in this contract that the parties have expressly agreed in writing shall
survive any such termination or which by their nature would be intended to be applicable
following such termination.
15. INDEPENDENT CONTRACTOR
It is agreed that ATTORNEY is an independent contractor and that this contract does not
create an employment relationship between COUNTY and ATTORNEY. ATTORNEY,
not COUNTY, will be responsible for appropriate payment of social security taxes and
federal income taxes applicable to the consideration received by ATTORNEY under this
contract.
COUNTY shall not be liable or responsible and shall be saved and held harmless by
ATTORNEY from and against any and all suits, actions, claims or liability of any character
arising out of the performance of ATIORNEY under this contract, including claims and
damages arising from acts of negligence or acts of malpractice of ATTORNEY.
16. NO WAIVER OF SOVEREIGN IMMUNITY
THE PARTIES EXPRESSLY AGREE THAT NO PROVISION OF THIS CONTRACT
IS IN ANY WAY INTENDED TO CONSTITUTE AWAIVER BY COUNTY OR THE
CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE4
STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
LAW.
17. GOVERNING LAW AND JURISDICTION
This contract shall be construed in accordance with and governed by the laws of the State
of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
brought for any breach of this contract is fL\'.ed in any court of competent jurisdiction in
Dawson County, Texas. All payments under the contract shall be due and payable at
ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
between the parties. No prior agreement of understanding, oral or otherwise, of the parties
or their agents will be valid or enforceable unless embodied in this contract. The County
Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
the Commissioners Court. Any signatory executing this contract on behalf of either
ATTORJ.'JEY or COUNTY warrants and guarantees that he has authority to execute this
contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
ATTORNEY and COUNTY to the provisions of this contract.
EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.
COUNTY:
.."' . ' ... .. ·.
ATTEST:
.
. ... . . ... '
--
~ .
<
GaloJt.Mv \Jn1 g. ) Ox./;· <1&\()1A&1\J{A~ Date: _ _._W
"""'--_-_
!tf-
_ [,.....l"-----
Gloria Vera, Cow1ty Clerk, Dawson County
ATTORNEY:
THE LAW OFFICES OF AR.THUR AGUILAR, JR.
By:-------1.,~
~~~
~9--
Date:
-
{ L ,_ ( ~ f)
~2.~
Carter T. Schildknecht, District Judge
Date:])e~W -4-)
LO L3
CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGES
CONTRACT FOR INDIGENT DEFENSE
IN
THE 106TH JUDICIAL DISTRICT CoURT OF TEXAS
DAWSON, GAINES, GARZA AND LYNN CoUNTIES
1. INTRODUCTION
The county of Gaines ("COUNTY") and The Law Offices of Arthur Aguilar, Jr.
("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial
District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to
represent indigent criminal defendants in COUNTY. This agreement establishes conditions
under which ATTORNEY will provide legal representation for indigent criminal
defendants in COUNTY.
2. SCOPE OF WORK
ATTORNEY will provide legal representation for indigent criminal defendants in
COUNTY for felony cases only. Under this contract, a felony will be considered to be any
criminal offense that carries a possible punishment of confinement in excess of one year or
that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
represent only those defendants designated by DISTRICT JUDGE, and no file shall be
opened or appearance made under this contract except by order of DISTRICT JUDGE.
ATTORNEY shall represent such defendants in the trial court and on direct appeal in any
of the appellate courts to which such case is appealed. Post conviction writs are
extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
elects to pursue the Death Penalty are NOT covered in this contract. This contract does
not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
indigent defendant has a misdemeanor charge as well as a felony charge, ATTORNEY will
handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
charge is taken into account in determining sentence for the felony offense as provided in
Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the
indigent defendant to be under this contract for only the felony case. ATTORNEY shall
meet qualifications and shall devote time, attention and energies to the performance of
duties under this contract pursuant to the provisions of the 106th Judicial District's Local
Indigent Defense Plan, including but not limited to the qualifications set out in the
Application/Affidavit for the 106th Judicial District Court Attorney Appointment List.
DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
that the quality and effectiveness of ATTORNEY's representation of defendants is not
compromised and that each defendant is being provided effective representation. If
DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
falling below that which is expected by the Court, DISTRICT JUDGE will make
adjustments to ATTORNEY's caseload. ATTORNEY's caseload under this contract shall
not exceed 400 actual cases over the entire four counties of the 106th Judicial District.
3. CONTRACT PERIOD
This agreement shall commence on January 1, 2014, and shall terminate September 30,
2014, unless terminated earlier by either party. The parties shall have an option to renew
the contract for additional years, and prior to July 1, 2014, the parties will revisit the
contract to consider any desired modifications to the terms and conditions of this contract.
4. CONSIDERATION
The parties agree that if this contract covered the legal representation for indigent criminal
defendants in all four counties of the 106m Judicial District, the total consideration for legal
representation at the trial court level would be $49,500.00 for the nine month contract
period.
The consideration for legal representation at the trial court level under this contract
between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
payable in monthly installments, based on indigent defense provided under the 2013
Contract for Indigent Defense in each of the four counties of the 106m Judicial District.
COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
for COUNTY's pro rata share as follows:
Dawson County $18,062.55 for contract $ 2,006.95 monthly
Gaines County $ 16,844.85 for contract $ 1,871.65 monthly
Garza County $ 9,207.00 for contract $ 1,023.00 monthly
Lynn County $ 5,385.60 for contract $ 598.40 monthly
The above amount is the total consideration to be paid by COUNTY for legal
representation of indigent criminal defendants at the trial court level for all cases opened
during the term of this contract, and ATTORNEY shall furnish at his own cost all
equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
all other trial court expenses except as provided otherwise in this contract.
In consideration for ATTORNEY's appellate representation of COUNTY's indigent
criminal defendants under this contract, COUNTY agrees to pay additional ATTORNEY's
fees for legal services at the rate accepted in this area for such services and approved by
DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for
representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.
COUNTY shall not be obligated for any other additional amount or expenses unless
specifically designated in this agreement or required by law, detailed in the Request to Pay
Counsel, and approved by DISTRICT JUDGE.
If the renewal option is exercised, COUNTY's designated monthly percentage will be
adjusted to reflect the number of COUNTY's cases under the contract in trial court
CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY PAGE2
compared to the number of trial court level cases under the contract in the entire 106th
Judicial District during the previous contract.
5. EXPERTS, INVESTIGATORS, AND INTERPRETERS
ATTORNEY will obtain prior approval of expenses for investigation and for experts by
filing a motion in the 106th Judicial District Court, stating the need for such assistance and
the estimated expense. Investigative or expert expenses incurred with prior court approval
shall be reimbursed as provided in the order granting approval. Investigative or expert
expenses incurred without prior approval shall be reimbursed only if necessarily and
reasonably incurred. ATTORNEY will arrange for interpreters when the need exists.
Expenses for interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.
6. CHANGE OF VENUE
If there is a change of venue which moves a case from the boundaries of the 106th Judicial
District, then AITO RNEY will be allowed his actual expenses in regard to lodging, meals,
court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
outside the 106th Judicial District will be paid at the prevailing state rate. All other fees
designated herein will be the responsibility of and paid by the County of original
jurisdiction.
7. ASSIGNMENT
ATTORNEY may employ an associate attorney(s) to assist in representing defendants
under this contract with the prior consent and approval of DISTRICT JUDGE, but only
at ATTORNEY's sole expense. ATTORNEY shall not assign its entire rights under this
contract or delegate the entire performance of its duties under this contract.
8. CONFLICTS
ATTORNEY will notify the office of DISTRICT JUDGE as soon as AITO RNEY is aware
of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
responsible to set the case for a hearing regarding the ethical conflict for consideration if
deemed necessary by the Court.
9. REPORTS
ATTORNEY shall compile a year-end report giving the number of indigent defendants
served, the number of individual cases handled, the types of cases, the disposition of the
cases handled, and any other reporting information required to be in compliance with the
law. Such report shall identify the cases by county and shall include cases for the other
contracting counties in the 106th Judicial District as well as COUNTY's cases. For approval
and payment, ATTORNEY shall provide itemized interim progress reports to COUNTY
and DISTRICT JUDGE as requested for indigent defense expenditure reports. Payment
shall be made by COUNTY after approval by DISTRICT JUDGE.
CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY PAGE3
10. ATTORNEY'S PRIVATE PRACTICE
It is agreed that ATTORNEY may maintain a private practice. It is further agreed and
understood that ATTORNEY's private practice will not interfere in any material manner
with the indigent criminal defense cases provided for in this contract.
11. TERMINATION
If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
majority vote of the Commissioners Court of COUNTY. Either party may terminate with
90 days notice by Certified Mail to the other party. ATTORNEY shall complete all cases
that are open as of the date of the termination notice unless relieved or replaced by
DISTRICT JUDGE.
12. AMENDMENTS
Any alterations, additions or deletions in the terms and conditions of this contract shall be
by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
and the Commissioners Court of COUNTY.
13. SEVERABILITY
If any provision of this contract is construed to be illegal or invalid, such construction will
not affect the legality or validity of any of its other provisions. The illegal or invalid
provision will be deemed severable and stricken from the contract as if it had never been
incorporated herein, but all other provisions will continue.
14. SURVIVALOFTERMS
Termination of this contract for any reason shall not release either party from any liabilities
or obligations set forth in this contract that the parties have expressly agreed in writing shall
survive any such termination or which by their nature would be intended to be applicable
following such termination.
15. INDEPENDENT CONTRACTOR
It is agreed that ATTORNEY is an independent contractor and that this contract does not
create an employment relationship between COUNTY and ATTORNEY. ATTORNEY,
not COUNTY, will be responsible for appropriate payment of social security taxes and
federal income taxes applicable to the consideration received by ATTORNEY under this
contract.
COUNTY shall not be liable or responsible and shall be saved and held harmless by
ATTORNEY from and against any and all suits, actions, claims or liability of any character
arising out of the performance of ATTORNEY under this contract, including claims and
damages arising from acts of negligence or acts of malpractice of ATTORNEY.
16. NO WAIYER OF SOVEREIGN IMMUNITY
THE PARTIES EXPRESSLY AGREE THAT NO PROVISION OF THIS CONTRACT
ISIN ANYWAYINTENDEDTOCONSTITUTEAWAIVERBYCOUNTYOR THE
CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY PAGE4
. ..
'
STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
LAW.
17. GOVERNING LAW AND JURISDICTION
This contract shall be construed in accordance with and governed by the laws of the State
of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
brought for any breach of this contract is fixed in any court of competent jurisdiction in
Gaines County, Texas. All payments under the contract shall be due and payable at
ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
between the parties. No prior agreement of understanding, oral or otherwise, ofthe parties
or their agents will be valid or enforceable unless embodied in this contract. The County
Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
the Commissioners Court. Any signatory executing this contract on behalf of either
ATTORNEY or COUNTY warrants and guarantees that he has authority to execute this
contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
ATTORNEY and COUNTY to the provisions ofthis contract.
EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.
Vicki Phillips, County Clerk, Gaine
Date: J:ai - Cf' /3
ATTORNEY:
THE LAW OFFICES OF ARTHUR AGUILAR, JR.
By: ___ a__,,____,..vl...........___--~----~~4/.--;;t-"--
Date: _ _1 _'-_-_____,.,.._f_-------'f___
/ _ _ _ _ __
~~J-11--11----
Carter T. Schildknecht, District Judge
Date:~ If-; Zo 13
CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY PAGES
106TH JUDICIAL DISTRICT
CURRENT CoNTRACT FOR 2013
PRO RATA SHARE DETERMINED BY INDIGENT DEFENSE
PROVIDED FOR EACH COUNTY UNDER THE 2012 CoNTRACT
CoST FOR 2013 CoNTRACT
District $66,000.00
Dawson 33.33% 21,997.80
Gaines 44.78% 29,554.80
Garza 15.42% 10,177.20
Lynn 6.47% 4,270.20
ESTIMATED SAVIN GS UNDER 2013 CoNTRACT
(Annualized, taking into consideration multiple cases for
some defendants, jury trials, contested revocation hearings, and mileage.)
CoST UNDER CoNTRACT EsTIMATED CoST WITHOUT CoNTRACT ANNUAL SAVINGS
District $66,000.00 $114,200.00 $48,200.00
Dawson 21,997.80 40,000.00 18,002.20
Gaines 29,554.80 51,000.00 21,445.20
Garza 10,177.20 16,000.00 5,822.80
Lynn 4,270.20 7,200.00 2,929.80
DEFENDANTS SERVED UNDER THE CURRENT
2013 CoNTRACT FOR .INDIGENT DEFENSE
(Annualized)
CoUNTY NUMBER OF CASES DISPOSED %OFTOTAL
Dawson 104 36.49
Gaines 97 34.03
Garza 53 18.60
Lynn _R 10.88
285
PRO RATA SHARE BY CoUNTY FOR PROPOSED Co~'TRACT FOR
JANUARY 1, 2014 THROUGH SEPTEMBER 30, 2014
CoST FOR 9 MO. CoNTRACT MONTHLY
District $49,500.00 $5,500.00
Dawson 18,062.55 2,006.95
Gaines 16,844.85 1,871.65
Garza 9,207.00 1,023.00
Lynn 5,385.60 598.40
.•
CoNTRACT FOR INDIGENT DEFENSE
IN
1
THE 1Q6n JUDICIAL DISTRICT COURT OF TEXAS
DAWSON, GAINES, GARZA AND LYNN CoUNTIES
1. INTRODUCTION
The cow1ty of Garza ("COUNTY") and The Law Offices of Arthur Aguilar, Jr.
("ATTORNEY") arc the parties to this agreement. The District Judge of the 106'h Judicial
District ("DISTRICT' JUDGE") is the appointing authority approving ATTORNEY to
represent indigent criminal defendants in COUNTY. This agreement establishes conditions
W1dcr which ATrORNEY will provide legal representation for indigent O"iininal
defendants in COUNTY.
2. SCOPE OF WORK
ATTORNEY will provide legal representation for indigent criminal defendants in
COUNTY for felony cases only. Under this contract, a felony will be considered to be any
criminal offense that carries a possible punishment of confinement in excess of one year or
that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
represent only those defendants designated by DISTRICT JUDGE, and no file shall be
opened or appearance made W1der this contract except by order of DISTRICT JUDGE.
ATI'ORNEY shall represent such defendantl in the trial court and on direct appeal in any
of the appellate courts to which such case is appealed. Post conviction writ1 are
extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
elects to pursue the Death Penalty are NOT covered in this contract. This contract does
not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
indigent defendant has a misdemeanor charge as well as a felony d1arge, ATTORNEY will
handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
charge is taken into account in determining sentence for the felony offense as provided in
Section 12.45 of the Texas Penal Code. Othetwise, ATfORNEY will consider the
indigent defendant to be W1der this contract for only the felony case. ATTORNEY shall
meet qualifications and shall devote time, attention and energies to the performance of
duties under this contract pursuant to the provisions of the 106'h Judicial District's Local
Indigent Defense Plan, including but not limited to the qualifications set out in the
ApplicationjAflidavit for the 106"' Judicial District Court Attorney Appointment List.
DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
that the quality and effectiveness of ATTORNEY's representation of defendants is not
compromised and that each defendant is being provided effective representation. If
DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
falling below that which is expected by the Court, DISTlUCT JUDGE will make
adjustments to ATTORNEY's caseload. ATTORNEY's caseload under this contract shall
not exceed 400 actual cases over the entire four counties of the 106'h Judicial District.
I
SOO/!OO[l]
3. CONTRACT PERIOD
This agreement shall commence on January 1, 2014, and shall terminate September 30,
2014, unless terminated earlier by either party. The parties shall have an option to renew
the contract for additional years, and prior to July 1, 2014, the parties will revisit the
contract to consider any desired modifications to the terms and conditions of this contract.
4. CONSIDERATION
The parties agree that if this contract covered the legal representation for indigent criminal
defendants in all four counties of the 106"' Judicial District, the total consideration for legal
representation at the trial court level would be $49,500.00 for the nine month contract
period.
The consideration for legal representation at the trial court level under this contract
between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
payable in monthly installments, based on indigent defense provided under the 2013
Contract for Indigent Defense in each of the four counties of the 106'h Judicial District.
COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
for COUNTY's pro rata share as follows:
Dawson County $18,062.55 for contract $ 2,006.95 monthly
Gaines O:mnty $ 16,844.85 for contract $ 1,871.65 monthly
Garza County $ 9,207.00 for contract $ 1,023.00 monthly
Lynn County $ 5,385.60 for contract $ 598.40 monthly
The above amount is the total consideration to be paid by COUNTY for legal
representation of indigent criminal defendants at the trial court level for all cases opened
during the term of this contract, and ATTORNEY shall furnish at his own cost all
equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
all other trial court expenses except as provided otherwise in this contract.
ln consideration for ATTORNEY's appellate representation of COUNTY's indigent
criminal defendants under this contract, COUNTY agrees to pay additional AITORNEY's
fees for legal services at the rate accepted in this area for such services and approved by
DISTRICT JUDGE. If A1TORNEY is required to travel to the appellate court for
representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.
COUNTY shall not be obligated for any other additional amount or expenses unless
specifically designated in this agreement or required by law, detailed in the Request to Pay
Counsel, and approved by DISTRICT JUDGE.
I
I
If the renewal option is exercised, COUNTY's designated monthly percentage will be
adjusted to reflect the number of COUNTY's cases under the contract in trial court
CONTRACT FOR INDIGENT DEFENSE - GARZA COUNTY PAGE2
SOO/ZOO~ a£pn,r 1'0"FX4-S"FQ L!=l901 018L2l8908 X'dd 80 :til !Cid ElOZ:/OZ:/Z:l
compared to the number of trial court level cases under the contract in the entire 106"'
Judicial District during tl1e previous contract.
5. EXPERTS, INVESTIGATORS, AND INTERPRETERS
ATTORNEY will obtain prior approval of expenses for investigation and for experts by
filing a motion in the 106"' Judicial District Court, stating the need for such assistance and
the estimated expense. Investigative or expert expenses incurred with prior court approval
shall be reimbursed as provided in the order granting approval. Investigative or expert
expenses incurred without prior approval shall be reimbursed only if necessarily and
reasonably incurred. ATTORNEY will arrange for interpreters when the need exists.
Expenses for interpreters shall be paid by COUNTY after approval by DISTlUCT JUDGE.
6. CHANGE OF VENUE
If there is a change of venue which moves a case from the boundaries of the 106'h Judicial
District, then ATTORNEY will be allowed bis actual expenses in regard to lodging, meals,
court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
DISTlUCT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
outside the 106"' Judicial District will be paid at the prevailing state rate. All otl1er tees
designated herein will be the responsibility of and paid by the County of original
jurisdiction.
7. ASSIGNMENT
ATTORNEY may employ an associate attorney(s) to assist in representing defendants
under tllis contract with tl1e prior consent and approval ofDISTlUCT JUDGE, but only
at ATfORNEY's sole expense. ATTORNEY shall not assign its entire rights under tllls
contract or delegate the entire performance of its duties under this contract.
8. CONFLICTS
A'ITORNEYwill notifythe office ofDISTRICTJUDGE as soon as ATTORNEY is aware
of etllical conflicts between indigent defendants and will file a Motion to Withdraw and be
responsible to set the case for a hearing regarding the ethical conflict for consideration if
deemed necessary by the Court.
9. REPORTS
ATTORNEY shall compile a year·end report giving the number of indigent defendants
served, tl1e number of individual cases handled, tl1e types of cases, the disposition of the
cases handled, and any other reporting information required to be in compliance witl1 the
law. Such report shall identify tl1e cases by county and shall include cases for the other
contracting counties in tl1e 106"' Judicial District as well as COUNTY's cases. For approval
and payment, ATTORNEY shall provide itemized interim progress reports to COUNTY
and DISTRICT JUDGE as requested for indigent defense expenclitnre reports. Payment
shall be made by COUNTY after approval by DISTRICT JUDGE.
CONTRACT FOR INDIGENT DEFENSE • GARZA COUNTY PAGE3
SiOO/EOOli'J a£pn.r ~,'.)1".:r'.lS}"O q::t90T 0T8LZ:l8908 X'ld 80 :~T I<:id ETOZ:/OZ:/Z:T
10. ATIORNEY'S PRNATE PRACTICE
It is agreed that A1TORNEY may maintain a private practice. It is further agreed and
understood that ATfORNEY's private practice will not interfere in any material manner
with the indigent criminal defense cases provided for in this contract.
I I. TERMINATION
If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
majority vote of the Commissioners Court of COUNTY. Either party may terminate with
90 days notice by Certified Mail to the other party. ATIORNEY shall complete all cases
that are open as of the date of the termination notice unless relieved or replaced by
DISTRICT JUDGE.
12. AMENDMENTS
Any alterations, additions or deletions in the terms and conditions of this contract shall be
by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
and the Commissioners Court of COUNTY.
13. SEVERABILITY
If any provision of this contract is construed to be illegal or invalid, such construction will
not affect the legality or validity of any of its other provisions. The illegal or invalid
provision will be deemed severable and stricken from the contract as if it had never been
incorporated herein, but all other provisions will continue.
14. SURVNALOFTERMS
Termination of this contract for any reason shall not release either party from any liabilities
or obligations set forth in this contract that the parties have expressly agreed in writing shall
survive any such termination or which by their nature would be intended to be applicable
following such termination.
15. INDEPENDENT CONTRACTOR
It is agreed that A1TORNEY is an independent contractor and that this contract does not
create an employment relationship between COUNTY and ATIORNEY. ATIORNEY,
not COUNfY, will be responsible for appropriate payment of social security taxes and
federal income taxes applicable to the consideration received by ATTORNEY under this
contract.
COUNTY shall not be liable or responsible and shall be saved and held harmless by
KITORNEY from and against any and all suits, actions, claims or liability of any character
arising out of the performance of A'ITORNEY under this contract, including claims and
damages arising from acts of negligence or aet5 of malpractice of ATTORNEY.
16. NO WAIVER OF SOVEREIGN IMMUNITY
THEPARTIESEXPRESSLYAGREETHATNOPROVISIONOFTHISCONTRACT
ISINANYWAYINTENDEDTOCONSTlTUTEAWAIVERBYCOUNTYORTHE
CONTRACT FOR INDIGENT DEFENSE - GARZA COUNTY PAGE4
;oo;~oorlJ
STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
LAW.
17. ·GOVERNING LAW AND JURISDICTION
This contract shall be construed in accordance with and governed by the laws of the State
of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
brought for any breach of this contract is fixed in any court of competent jurisdiction in
Garza Cotmty, Texas. All payments under the contract shall be due and payable at
ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
between the parties. No prior agreement of understanding, oral or otherwise, of the parties
or their agent~ will be valid or enforceable unless embodied in this contract. The County
Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
the Commissioners Court. Any signatory executing this contract on behalf of either
ATTORNEY or COUNTY warrants and guarantees that he has authority to execute this
contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
ATTORNEY and COUNTY to the provisions of this contract.
EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.
COUNTY:
~~
Lee Norman, County Judge
ATTEST:
Date: __,/'--;2_~/~9~/R__6~(~_3-
nn Plummer, Cotmty Clerk, Garza Cotmty
ATTORNEY:
Carter T. Schildknecht, District Judge
Date: D~ 4- ZoL.3
I
CONTRACT FOR INDIGENT DEFENSE " GARZA COUNIT PAGES
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ATTORNEY:
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Tiffi LAW OFFICES OF ARTHUR AGUILAR, JR.
By:~~
Date: / /~ j t7 - }~
APysf/JTINGA~9fITY~
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Carter T. Schildknecht, District Judge
Date: /V~ 3o .~ 2.fa I Z- 1
CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGES
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Appendix E – Regional Public Defender’s Written Procedures and Budget
69
MODIFICATION OF
REGIONAL PUBLIC DEFENDER CONTRACT DATED OCTOBER 25, 2010
Between
DICK.ENS COUNTY, TEXAS
And
TEXAS TECH UNIVERSITY
July_, 2012
~ii.SD FOR~
THI~'!> DAY OF , 20~
Ar9·3Q O'CLOCK M.
WINONA HUMPHREYS
F COUNTY COUR O N
MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 1of6
MODIFICATION OF REGIONAL PUBIC DEFENDER CONTRACT
DATED OCTOBER 25, 2010
DICKENS COUNTY, TEXAS ("COUNTY") and TEXAS TECH UNIVERSITY
("ENTITY") entered into a agreement dated October 25, 2010, under which ENTITY agreed.to
perform legal services for persons accused of crimes in DICKENS COUNTY and other counties
that agree to participate in the Caprock Regional Public Defender Office ("CRPDO") program.
In the initial agreement, the following counties were authorized to participate in the
CRPDO program with the agreement of DICKENS COUNTY and ENTITY: Armstrong County,
Briscoe County, Collingsworth County, Cottle County, Crosby County, Dickens County, Floyd
County, Foard County, Hall County, Hardeman County, Haskell County, Kent County, King
County, Knox County, Motley County and Stonewall County.
With the agreement of ENTITY and COUNTY, since October 25, 2010, the following
additional counties have begun participation in the CRPDO program as per the original contract:
Gaines, Swisher, Garza and Dawson and the following counties have failed to enter the program:
Hall, Foard, Crosby and Haskell.
All previous terms and conditions of the agreement between the parties dated October 25,
2010, are hereby radified and continued in full force and effect if not expressly modified by this
agreement. The grant provider to the COUNTY suggested the third year budget be approved by
the COUNTY for all participating counties in the CRPDO program as the amounts are different
than those originally anticipated. Attached hereto marked Exhibit A is the proposed budget for
the CRPDO program for the third year of operation, October 1, 2012 through September 30,
2013. The COUNTY and the ENTITY hereby agree to this third year budget evidenced by their
signatures below, acknowledging that all other terms of the orginal contract will remain the same
unless herein modified. Further, the COUNTY and the ENTITY acknowledge and agree:
That the participating counties have not fully utilized the CRPDO as was anticipated on
the CRPDO's inception;
That additional time is necessary for the CRPDO to build its client base and gain the
confidence of the participating counties;
That as a show of good faith the ENTITY agrees to reduce the contract amount for year
three;
That the COUNTY and the ENTITY agree for the third year of the CRPDO's operation
only, the COUNTY is not responsible for the original contract amount of FOUR HUNDRED
FORTY THOUSAND ($440,000.00) Dollars, but the total of THREE ffiJNDRED NINETY-
EIGHT THOUSAND AND NO/I 00 ($398,000.00) Dollars;
That this $398,000.00 represents direct costs for contract services to be paid to ENTITY
of THREE HUNDRED EIGHTY-THREE THOUSAND AND N0/100 ($383,000.00) Dollars,
MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 2of6
and indirect costs of FIFTEEN THOUSAND AND NOil 00 ($15,000.00) Dollars to be retained
by Dickens County for administrative costs;
That ENTITY will establish it's budget for the third year of the CRPDO for the direct
costs of contract services of $383,000.00 to be paid to ENTITY by COUNTY plus
approximately SEVENTY-FOUR THOUSAND AND NO/I 00 ($74,000.00) Dollars being the
estimated carry-over belonging to ENTITY by virtue of the second year of operation - the exact
amount of the carry-over cannot be calculated until the end of September, 2012;
That the amount of the contract and other terms of the original contract for year four and
beyond will remain at the original FOUR HUNDRED FORTY THOUSAND ($440,000.00)
unless by agreement the amount is raised or lowed or other modifications are made in writing;
That beginning in year three the COUNTY has previously agreed to pay 20% of the
contract amount, which for year three will be SEVENTY-NINE THOUSAND SIX HUNDRED
AND N0/100 ($79,600.00) Dollars (20% of $398,000.00), with the 80% balance of the contract
($318,400.00) to be provided by the grant provider using the anticipated carry-over from year
two of approximately THIRTY THOUSAND AND N0/100 ($30,000.00) Dollars and a new
grant of TWO IDJNDRED EIGHTY-EIGHT THOUSAND FOUR HUNDRED ($288,400.00)
Dollars;
That any amounts of the third year contract of $398,000.000 remaining on hand at the
end of September, 2013, shall be divided pursuant to the Carry-Over provisions of the original
contract (i.e., the first $39,800.00 to be retained by ENTITY, and the remaining balance over
$39,800.00 to be divided equally between COUNTY and ENTITY;
That the budget for year three, attached hereto as Exhibit A, is hereby approved for
ENTITY'S accounting purposes and COUNTY'S informational purposes;
That unless further modification is made, the terms of the original contract will remain in
effect unmodified for year four and all subsequent years of the CRPDO program;
That two clarifications as to the intended scope of the CRPDO must be enumerated, to-
wit:
(1) That on February 2, 2012, the CRPDO's Oversight Board approved a clarification of
the scope of the CRPDO program to insure the CRPDO can accept appointments on
misdemeanors, felonies and juvenile cases, including appeals on misdemeanors,
felonies and juvenile cases, from the County and District Courts of the 7th and 9th
Administrative Judicial Region, and
(2) That the current caseload maximum of the CRPDO is 600 misdemeanor cases, or
their weighted equivalent;
That the CRPDO may also receive the appointment of appeals from any courts within the
7th and 9th Administrative Judicial Region -- whether or not from counties in the CRPDO
MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 3of6
program -- until such time as CRPDO has reached its full caseload maximums, as set by the
CRPDO's Oversight Board, giving preference to the needs of the counties within the CRPDO
program;
That any appeals accepted by the CRPDO from counties not participating in the CRPDO
program shall be compensated by the appointing county at its normal customary court appointed
rate with any sums received to be credited against COUNTY's obligations to the ENTITY
hereunder;
That upon the hiring of a second Assistant Public Defender, should that occur, the
caseload maximum of CRPDO, with approval of the CRPDO Oversight Board, will increase to
1000 misdemeanor cases, or their weighted equivalent; and
That the ENTITY and COUNTY hereby agree to these clarifications of scope to take
effect August 1, 2012, and to continue for the Ii fe of the CRPDO.
COUNTY:
Judge Lesa Arnold (or her successor)
Dickens County Judge
Post Office Box 179
Dickens, Texas 79229
ENTITY:
FOR TECHINICAL ISSUES:
Patrick S Metze (or his successor)
Director, CRPDO
Texas Tech University School of Law
1802 Hartford A venue
Lubbock, Texas 79408
FOR CONTRACTUAL ISSUES:
Dr. Jay B. McMillen
Assistant Managing Director
Office of Research Services
Texas Tech University
P.O. Box 41035
203 Holden Hall
Lubbock, Texas 79409-1035
MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 4of6
With copy to:
Dr. Kathleen Harris
Senior Associate Vice President for Research
Office of Research Services
Texas Tech University
P.O. Box 41035
203 Holden Hall
Lubbock, Texas 79409- l 035
SIGNED AND EXECUTED by the parties on the date(s) indicated by the signatures of
the authorized representatives.
DICKENS COUNTY
By· .----#_ · 1-'=--~~~:::::::.i......C{~-!:::D=ate:..:....._:_Ji-'- %=-.;.'.;<_ ;~. c. -/;"- :6::...i.,__
='
~d (or her successor)
Dickens County Judge
Post Office Box 179
Dickens, Texas 79229
TEXAS TECH UNIVERSITY
By: J~/ ~;(,j,,, o . Date: 10 / °8 // .6•
.I Dr. Kathleen Harris
Senior Associate Vice President for Research
Office of Research Services
Texas Tech University
Post Office Box 41035
203 Holden Hall
Lubbock, Texas 79409-1035
MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 5of6
EXHIBIT A
THIRD YEAR BUDGET FOR CAPROCK REGIONAL PUBLIC DEFENDER OFFICE
MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 6of6
FY 2013 Budget
Projected
Expenses FY 2013
? Indirect Costs to Dickens s 15,000.00
6Al Faculty salaries
Meue s 15,000.00
Yandell s 105,995.76
6A2 Staff salaries
Washington s 50,000.00
Pelowski s 72,000.00
Clerk s 10,000.00
684 Fringe s 80,000.00
Research s 50,000.00
78 Travel s 12,000.00
7C Materials/supplies s 8,000.00
7D0030 Telecomm services s 5,200.00
7F1010 Repairs/maintenance s 1,500.00
7G Rental s 38,615.24
7H0026 Printing s 2,000.00
7N Other expenses s 1,700.00
7N1000 Dues s 89.00
7N3 Other services s 2,400.00
7N4 Food/entertainment s 2,000.00
7N6009 Other exp s 500.00
Total: s 472,000.00
Direct Costs s 383,000.00
Indirect Cost s 15,000.00
Total Contract: s 398,000.00
County pays 20% s 79,600.00
TIDC:
FY 2012 Carry-over s 30,000.00
TIDC FY 2013 contrib. s 288,400.00
TIDC pays 80% s 318,400.00
Tech's Carry-over $ 74,000.00
Total budget FY 2013 $ 383,000.00
Indirect Costs s 15,000.00
Budget FY 2013 s 472,000.00
FY 2013 County Costs
Cost Per
FY 2013 Min. FY 2013 Max. Cost Per Cost Per
Portion of FY 2012 Cost Per Case Case FY
County 2010 Pop. Est. Case Case Year3 Case@FY Case FY 2013
Population Projected Use 2011 &2012 2013 at
Allocation Allocation 2012 Usage at Min
Max
Armstrong 2,188 3.00% 15 18 30 $2,388.00 $0.00 s 159.20 s 132.67 s 79.60
Briscoe 1,577 2.17% 15 13 22 $1,727.32 $0.00 s 115.15 s 132.87 s 78.51
Collingsworth 3,059 4.20% 0 25 42 $3,343.20 $0.00 $ 133.73 $ 79.60
Cottle 1,647 2.26% 0 14 23 $1,798.96 $0.00 s 128.50 s 78.22
Dawson 13,929 19.13% 95 115 192 $15,227.48 $0.00 $ 160.29 $ 132.41 $ 79.31
Dickens 2,656 3.65% 35 22 37 $2,905.40 $0.00 s 83.01 $ 132.06 s 78.52
Floyd 7,248 9.95% 42 60 100 $7,920.20 $0.00 s 188.58 $ 132.00 s 79.20
Gaines 15,201 20.88% 40 125 208 $16,620.48 $0.00 $ 415.51 $ 132.96 $ 79.91
Garza 5,057 6.95% 54 42 70 $5,532.20 $0.00 s 102.45 s 131.72 s 79.03
Hardeman 4,352 5.98% 23 36 60 $4,760.08 $0.00 s 206.96 $ 132.22 $ 79.33
Kent 816 1.12% 1 6 10 $891.52 $0.00 s 891.52 s 148.59 s 89.15
King 355 0.48% 0 3 5 $382.08 $0.00 $ 127.36 s 76.42
Knox 3,797 5.21% 11 31 51 $4,147.16 $0.00 s 377.01 s 133.78 $ 81.32
Motley 1,465 2.01% 12 12 20 $1,599.96 $0.00 s 133.33 s 133.33 s 80.00
Stonewall 1,460 2.01% 12 12 20 $1,599.96 $0.00 s 133.33 s 133.33 s 80.00
Swisher 8,007 11.00% 11 66 110 $8,756.00 $0.00 s 796.00 s 132.67 s 79.60
Totals: 72,814 100.00% 366 600 1000 $79,600.00
Indirect Costs CRPDO Equipment Total Total Total Funds Funds Maximum
to Dickens Contract Budget Contract Revenue Expenses Returned Carried over Caseload
FY2010 Year 1 $ $ 440,000.00 s123,064.00 s 563,064.00 $ 489,730.60 $ 346,025.65 $44,500.56 $99,204.39 400
Equipment cost $ 53,492.43
Funds unused s 69,571.57
FY2011 Year2 s s440,000.00 s440,000.00 s440,000.00 s336,000.00 $30,000.00 s74,000.00 600
FY2012 Year 3 s 15,000.00 s383,000.00 $ 398,000.00 600
TIDC's80% $ 318,400.00
Less Funds Returned to TIDC s (30,000.00)
Total TIDC Contrib s 288,400.00
Counties' 20% $ 79,600.00
Caprock Regional Public Defender Office
Mission Statement:
The Caprock Regional Public Defender Office provides zealous advocacy for indigent
people in West Texas who are accused of committing crimes; educates third-year Texas Tech
law students about criminal defense representation; assists criminal defense attorneys in West
Texas; and furthers and promotes the causes of justice and equality in Texas and throughout the
United States.
Vision Statement:
The Caprock Regional Public Defender Office will endeavor to grow and expand the
educational opportunities it provides to students and the service it provides to members of the
community. The clinic will work with the Law School administration and its faculty to increase
the number of law students who can take the clinic. The clinic will work with members of the
bench and bar to expand the number and types of cases that it handles. The clinic will collaborate
with more organizations to further its goals and mission.
Goals:
The Caprock Regional Public Defender Office has four primary goals. They are as
follows:
1. The timely and efficient representation of indigent clients appointed to the office
within the region for which the office operates while maintaining the quality of the
representation at an exemplary level.
2. The training and education of third year students attending the Texas Tech School of
Law who have shown an interest in practicing in a criminal law environment.
3. Assist the counties in the region for which the office operates in their budgetary and
criminal justice concerns by striving to assist the counties to minimize the counties’
expenses.
4. Provide raw data to and assist other schools within the Texas Tech University System
with research interests that could benefit from the data obtained as a result of the
office while maintaining client confidentiality.
1
Table of Contents
Contents
Mission Statement:.......................................................................................................................... 1
Vision Statement: ............................................................................................................................ 1
Goals: .............................................................................................................................................. 1
A. Purpose................................................................................................................................. 3
B. Objective .............................................................................................................................. 3
C. Personnel .............................................................................................................................. 3
D. Continuing Legal Education ................................................................................................ 4
E. Investigator Training ............................................................................................................ 4
F. Conflict Checks .................................................................................................................... 5
G. Caseload Allocation ............................................................................................................. 5
H. Case Management/Performance Guidelines ........................................................................ 8
I. Ethics of Public Service ....................................................................................................... 9
J. Discrimination/Sexual Harassment: ................................................................................... 10
K. Equal Employment: ........................................................................................................... 13
L. Drug Free Workplace: ........................................................................................................ 13
M. Confidentiality: .................................................................................................................. 14
N. Outside Speaking Engagements:........................................................................................ 14
O. Outside and Self Employment: .......................................................................................... 14
P. Acceptance of Gifts: ........................................................................................................... 15
Q. Use of Public Defender Property for Personal Business: .................................................. 15
R. Media Relations: ................................................................................................................ 16
S. Conduct: ............................................................................................................................. 17
T. Personal Appearance: ......................................................................................................... 17
U. Computer Policies and Procedures: ................................................................................... 18
V. Ethics: ................................................................................................................................ 18
W. Construction: ...................................................................................................................... 19
2
This manual is designed to function as the working guide to the operation and utilization
of the Caprock Regional Public Defender Office. The policies and procedures outlined in this
manual have been developed by the Public Defender. These guidelines are subject to the
organizational agreement between the Public Defender and the oversight board created by
counties serviced by the office. Policies and procedures described in this manual are subject to
change on an “as needed” basis as the needs and capabilities of the office and the county change.
A. Purpose
1. The purpose of these guidelines is to provide principles for establishing and
maintaining productive relationships between the Office and its employees.
2. The Chief Public Defender reserves the right to change any provision of these
guidelines unilaterally at any time, without individual notice of the potential
change to the individual employees.
3. No employee, supervisor, official, or representative of the Caprock Regional
Public Defender Office has any authority to change any portion of these
guidelines, except at the specific direction of the Chief Public Defender.
B. Objective
The objectives of these guidelines, as supported by sound personnel administration, include:
1. To treat applicants and employees in accordance with the law.
2. To motivate employees to work toward the goals established by the Office and to
provide create a working environment, which provide forencourages employee
achievement, recognition and growth.
C. Personnel
Detailed job descriptions for each position in the Public Defender’s office are attached as
Appendix “A” to this document. The positions that are envisioned for the Public Defender’s
Office are:
1. Attorneys
a. Chief Public Defender;
b. First Assistant Public Defender; and
c. Assistant Public Defender.
3
2. Investigation
a. Chief Investigator
3. Support Staff
a. Administrative Assistant
4. Conduct/ Ethical Guidelines
As employees of attorneys, staff members are bound by the same ethical standards as
attorneys. First and foremost, this includes the attorney-client privilege. Anything we learn
from a client is confidential and will not be shared with anyone outside this office without
the clients’ permission. This includes friends and family of the client.
Secondly, all members of the PDO should be respectful of the witnesses and other parties
that we come across during the course of our representation of a client. While there will be
individuals who will make it difficult or impossible to do that, always go into the situation as
respectfully as possible. You should also show respect to the victims who agree to speak with
us. Finally, you should seek a parent or guardian’s permission before speaking to a juvenile
witness or victim.
5. Sick/ Vacation Leave
Sick and vacation leave are to be governed under the guidelines and policies of Texas Tech
University.
D. Continuing Legal Education
Under the Texas Fair Defense Act, any attorney requesting appointments to represent
indigent defendants must have at least ten (10) hours of continuing legal education in the field of
criminal law each calendar year and be an active member of the State Bar of Texas to maintain
eligibility to receive appointments.
The PDO will cover all expenses in sending its attorneys to CLE seminars approved in
advance by the Chief Public Defender in order to meet with appointment requirements. The PDO
will also cover the expense for membership dues to the State Bar of Texas and the Texas
Criminal Defense Lawyer’s Association.
E. Investigator Training
The investigator will receive training and certification under the guidelines of the
National Association of Investigative Specialists (NAIS). The investigator will need to become
4
proficient in interviewing skills, with the use of a digital camera and voice recorder, and with
scene or location sketches or diagrams. The investigator will also need to review and become
familiar with common investigative manuals and procedures utilized by local law enforcement
agencies to assist the attorneys in strategy planning before trial.
F. Conflict Checks
It is axiomatic in law that a lawyer cannot effectively represent a client when there exists
a conflict of interest. In criminal defense work, that conflict most often arises when you have
been appointed to represent someone and you already represent the victim, a co-defendant, or
adverse witness in the case. In order to avoid that situation, a conflicts check is to be conducted
on each case early in the appointment process.
The administrative assistant, or the attorney assigned to the case, should enter in the
names of the client, victim(s), co-defendant(s), if any, and any known witnesses into the conflict
checking software. If additional victims, witnesses, etc. are later uncovered, they should also be
entered into the software program to see if a conflict arises.
In the event a potential conflict is uncovered, the attorney needs to view the nature of the
conflict and then make a professional judgment as to whether withdrawal is required. If in
doubt, the attorney should discuss it with the Chief Public Defender or the First Assistant for
guidance.
If withdrawal is required, the attorney shall report the conflict to the Chief Public
Defender who shall approve the withdrawal after consideration and report the need for
withdrawal to the appointing court.
G. Caseload Allocation
The ability to provide zealous and effective representation of indigent citizens accused of
crimes depends on the skill of the attorney, the quality of the support staff, adequate funding for
investigators and experts, and sufficient time to adequately investigate, research and prepare the
case. In order to allow sufficient time to be allocated to any individual case, the attorneys and
support staff must not be responsible for representing too many clients at any one time, lest the
representation of all should suffer. Counterbalancing the needs of the client is the need to be
mindful of the limited resources available to the defense of indigent citizens. The caseload
standards and allocation plan for fairly distributing cases amongst the attorneys of the public
defender’s office seeks to maximize the number of cases that can be handled by the office while
still maintaining a quality defense in line with ethical and professional standards.
1. Caseload Standards
5
Office Caseload standards (Developed through reference to other case
management standards used by public defender and legal aid offices, including the National
Legal Aid and Defender Association {NLADA}. These standards may be reevaluated later
based upon actual experience by the Caprock Regional Public Defender Office.)
a. Types of Cases
i. Felonies – All degrees (No capital cases)
ii. Misdemeanors – Class A & B
b. Caseload Limits
i. 400 Cases/Year Per Attorney
ii. These standards may be modified by agreement of the Commissioner’s
Overnight Committee, Board of Judges, and the Public Defender’s office
based upon:
1. Number and type of support personnel;
2. Actual mix of cases;
3. Experience and position level of attorney; and
4. Actual experience.
c. Case tracking
i. Computer software program to track and monitor caseloads to determine
most viable numbers will be implemented.
ii. Records to be kept regarding number of each grade felony and
misdemeanor assigned to office will be implemented.
2. Chief Public Defender Caseload
Initially, with one attorney handling just misdemeanors and juveniles, considering the
statewide average of 35% appointments for cases added and the region’s four year average of
1261 misdemeanors and 38 juveniles added each year, should juvenile appointments rise to
200% of juvenile cases added (76 cases), this would allow the Chief Public Defender to handle a
total of 248 misdemeanor cases. At the statewide 35% appointment rate (441 misdemeanors),
this would result in 193 defendants that would have to receive appointment of counsel from the
traditional appointment wheel until the Assistant Public Defender is hired in April, 2011.
However, timing should bring the Assistant Public Defender onboard at about the right time to
lessen the effect of the Chief Public Defender reaching his maximum caseload. Until the Fall,
2011, the Chief Public Defender will not have duties associated with instruction or supervision
of student attorneys. At that time, the Chief Public Defender’s caseload should drop to a total of
56 juvenile cases and 228 misdemeanors.
3. Assistant Public Defender
As the Assistant Public Defender will be hired in April, 2011, this would open up an
additional 400 misdemeanor appointments, assuming juvenile appointments do not exceed
double the 4 year average.
6
4. Anticipated Increase in Appointments
From experience, once public defenders are available for juvenile cases, the juvenile
caseload is expected to double to 76 juvenile cases and the number of adults that qualify as
indigent for appointment will increase to 50% of cases added. At that time, juvenile caseload
should reach 76 and misdemeanors 630. With the Chief Public Defender handling all the
juveniles and 248 of the misdemeanors the remaining 382 misdemeanors will virtually create a
full caseload for both attorneys. This is expected within the first year.
5. Student Attorneys
Once the initial 12 student attorneys are assigned in the Fall, 2011, over the next 9
months, the students should handle 180 of these cases, both misdemeanors and juveniles
(average 9 month caseload would be 15 cases per student). These cases should be assigned 120
to the Assistant Public Defender giving him a balance of 262 cases on his exclusive docket. The
Chief Public Defender will see his exclusive docket reduce from 248 misdemeanors and 76
juveniles to 228 misdemeanors and 56 juveniles (juvenile cases taking twice as much time as a
typical misdemeanor case).
Due to the fact that unforeseen circumstances may present themselves, the Chief Public
Defender will be responsible for monitoring and adjusting the caseload as he/she sees fit.
______________________________________________________________________________
Chief Public Defender’s Caseload: Until
Fall 2011
Maximum Maximum Maximum Expected
Caseload Caseload Caseload Caseload
PD PD PD PD
Misdemeanors 400 248
Juveniles 200 76*
Felonies 150 0
______________________________________________________________________________
First Assistant Public Defender’s Caseload: Until
Fall 2011
Maximum Maximum Maximum Expected
Caseload Caseload Caseload Caseload
PD PD PD PD
Misdemeanors 400 400
Juveniles 200 0
Felonies 150 0
7
______________________________________________________________________________
12 Student Attorneys Caseload:
Fall 2011
Expected
Caseload
Student Attorneys
Total cases for the period of August, 2011 – May, 2012 180 cases
Misdemeanors 140
Juveniles 20 (Juv x2)*
Felonies 0
______________________________________________________________________________
Fall: 2011: Misdemeanors Juveniles % of time
to cases
Student Attorneys 140 20 (Juv x2)* 100%
PD 228 56 85%
1st Asst. PD 280 70%
Totals: 648 76 (Juv x2)*
Total cases: 800
*Juvenile cases count as two misdemeanor cases as they take twice as much time.
______________________________________________________________________________
H. Case Management/Performance Guidelines
The provision of criminal defense services is not one that easily lends itself to pure
numerical analysis. While the process of determining the dollars and cents it costs to provide
defense services for “x” number of cases is ascertainable, determining the actual quality of those
services is more difficult. The Constitution guarantees all citizens accused of jailable offenses
the effective representation of counsel. Mindful of that guarantee, the goal should be to provide a
high quality of representation at a reasonable cost and not the bare minimum at lowest possible
cost. While there is no one standard to determine effective representation, the Public Defender
should seek to measure, to the extent possible, those items that the office and the
Commissioner’s Court agree provide some measure of the success in providing criminal defense
services. These measurements and reports are subject to ongoing revision based upon the
capabilities of the equipment available to capture the information and the determination of the
parties as to what constitutes valid measurement criteria.
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For more objective measurements of the PDO’s performance, reports relaying the
following information are under development. In the event that the computer software used by
the office is unable to prepare this information, alternative reports shall be developed.
1. Effectiveness of Representation
a. Monthly case flow
i. Number of cases received;
ii. Number of cases closed; and
iii. Pending case load
b. Length of time from:
i. Arrest to appointment;
ii. Arrest to release from custody with judgment or dismissal;
iii. Appointment of case to release from custody with judgment or
dismissal; and
iv. Appointment to disposition of case
I. Ethics of Public Service
Public Service is a public trust. The highest obligation of every individual in our
organization is to fulfill that trust. Each person who undertakes this public trust assumes two
paramount obligations:
- to serve the public interest by zealously representing our clients;
- to perform public services with integrity.
These are the commitments implicit in all public service. In addition to faithful
adherence to these principles, public employees have an additional duty to discern, understand
and meet the needs of their fellow citizens so far as this does not conflict with the zealous and
ethical representation of our clients. That is the definition of a public servant. As public
lawyers, each Assistant Public Defender (APD) is charged with the ethical obligations owed by
every member of the bar. Each Assistant Public Defender is additionally charged with the
ethical duties and responsibilities of the government lawyer.
The core values above should be the foundation of all action by members of our staff.
These principles are too general to govern the resolution of concrete ethical problems. In an
attempt to spell out the practical implications of these core values, we have articulated the
principles set forth below. We address them to you in the hope that they will guide your day-to-
day work and help you deal with ethical dilemmas you may face:
Integrity requires of you a consistent approach to all issues, decisions or actions. Your
willingness to speak up is essential.
The true public servant:
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- will not act out of spite, bias, or favoritism;
- will not tell the boss only what he/she wants to hear;
- respects the competence and views of others;
- does not succumb to peer or other pressure;
- contributes to a climate of mutual trust, respect and friendliness;
- refuses to let official actions be influenced by personal relationships,
including those arising from the past or prospective employment;
- has the courage of his or her convictions;
- unflinchingly accepts responsibility;
- does not try to shift blame to others and accepts responsibility for one’s
own actions and conduct;
- never forgets that they are working for the people...all the people.
Every Assistant Public Defender must adhere to the spirit and letter of the provisions set
forth in the State Bar Rules governing disciplinary conduct, the Texas Lawyer’s Creed, and the
Texas Code of Criminal Procedure.
J. Discrimination/Sexual Harassment:
Policy
1. It is the policy of the Caprock Regional Public Defender Office to employ
positive business and personnel practices designed to ensure the full realization of
equal employment opportunity without regard to race, color, age, religion, sex,
sexual orientation, national origin, handicap, or veteran status.
2. The purpose of this policy is to provide a workplace that is free from unsolicited
and unwelcome behavior, including sexual overtures or conduct, either physical
or verbal. This policy is in accordance with and in addition to the Texas Tech
University Policy and Procedure Manuel.
3. Specifically forbidden is discrimination/harassment of a sexual, racial, ethnic, or
religious nature. Such harassment includes unsolicited remarks, gestures or
physical contact, display or circulation of written materials or pictures derogatory
to either gender or to a racial, ethnic, or religious group.
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4. Violations of this policy will not be permitted. Any employee or supervisor who
violates this policy will be subject to immediate and appropriate discipline up to
and including immediate termination. It is the duty of each employee to report
any incident of prohibited conduct whether it involved them personally or another
employee.
5. Retaliation against an employee for reporting conduct in violation of this policy
will not be permitted.
Sexual Harassment and Discrimination – Definition
1. Sexual harassment is defined as unwelcome sexual advances, requests for sexual
favors, and other verbal and physical conduct of a sexual nature when:
Submission to such conduct is made whether explicitly or implicitly a
term or condition of an individual’s employment; or
Submission to or rejection of such conduct by an individual is used as the
basis of employment decisions affecting such individual; or
Such conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile or
offensive working environment.
Sexual Harassment and Discrimination Rules of Conduct
1. Personnel actions shall not be taken affecting an employee (either favorably or
unfavorably) on the basis of conduct which violates this policy and is not related
to the workplace. Such conduct may include submitting to sexual advances,
refusing to submit to sexual advances, protesting sexual overtures, or making a
complaint concerning the alleged violations of this policy.
2. Employees shall not behave in a manner that is unwelcome by any other
employee and is personally offensive, such as, but not limited to the following
examples:
Repeated sexual flirtations, advances, or propositions;
Continued or repeated verbal abuse of a sexual nature, sexually related
comments and joking, graphic or degrading comments about an
employee’s appearance, or the display of sexually suggestive objects or
pictures;
Any uninvited physical contact by touching, such as patting, pinching, or
brushing against another’s body; or
Any conduct that unreasonably interferes with another employee’s
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performance or creates an intimidating, hostile, or offensive working
environment even if no tangible or economic damages result.
3. Employees shall not exert pressure for sexual favors, including implying or
threatening that an applicant’s or employee’s cooperation of a sexual nature (or
refusal of it) will have any effect on the person’s employment, job assignment,
wages, promotion, or on any other conditions of employment or future
opportunities.
4. No employee shall bring or possess any pornographic or sexually explicit material
in the workplace. Any such material found in the workplace shall be immediately
confiscated. This subsection does not apply to evidentiary material handled in the
normal course of criminal defense litigation.
Reporting/Investigations
1. Any employee who feels that he/she is a victim of discrimination or harassment
shall immediately report the matter to the Chief Public Defender or the Office
Manager. In addition, the employee may also file his/her complaint with the
Director of Personnel or directly to any field office of the Equal Employment
Opportunity Commission (EEOC) or the Texas Human Rights Commission
(THRC). Provided, however, that in the event the employee elects to report
directly to the EEOC or THRC, the employee must provide notice to the Chief
Public Defender or Personnel Department within 24 hours of filing said report or
complaint.
2. Any person who received a report of discrimination or harassment or becomes
involved with its investigations shall keep all information about it as confidential
as possible in order to protect other victims and witnesses from retaliation and the
alleged harasser from defamation if the accusations are unfounded. All written
materials relating to the investigation and recommended action, including
complaint forms, notes, memos, statements, etc., shall be kept confidential to the
greatest extent allowed by law and shall be maintained in a secure file with access
allowed only to the Chief Public Defender and any other person specifically
authorized by the Chief Public Defender.
3. Any person who received a report of discrimination/harassment shall treat the
employee making the report with respect and dignity and shall immediately
investigate the report seeking all assistance necessary to obtain a thorough
investigation. If it becomes apparent that it is in the best interest of those
involved for an employee to remain away from the workplace during the
investigation, that employee will be placed on administrative leave with pay until
completion of the investigation. If harassment is found, the Chief Public
Defender shall take prompt and reasonable remedial action to end the harassment
and prevent the misconduct from recurring.
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4. Each employee has a responsibility to report incidents of obvious discrimination
or harassment. Each employee shall cooperate with the
Discrimination/Harassment Review Committee in the conduct of its investigation.
Any employee who fails to comply is subject to discipline up to and including
immediate termination.
5. Any employee who has been found to have been involved, actively, or passively,
in discrimination/harassment, is subject to discipline, which may include
reprimands, probation, suspension, and immediate termination.
6. Individuals who believe that they are being sexually harassed by a supervisor are
not required to discuss the matter with their supervisor. They should notify and
report such harassment to one of the other persons listed above.
K. Equal Employment:
It is the policy of the Caprock Regional Public Defender Office to prohibit discrimination
in matters of recruitment, employment, training, promotion, wages, or discipline because of race,
color, sex, sexual orientation, age, religion, national orientation, marital status, or disability in
accordance with all Federal, State or local regulations.
L. Drug Free Workplace:
The office of the Caprock Regional Public Defender Office and the citizens of this
community have a vital interest in maintaining a safe, healthful and efficient workplace for the
Caprock Regional Public Defender Office employees and in maintaining the integrity and
reputation of the Office. Being under the influence of a drug or alcohol on the job, may pose
safety and health risks, not only to the user but to all those who work with the user.
The possession, use, abuse or sale of any legal or illegal drug, controlled substance or
alcohol in the workplace poses an unacceptable risk to the safe, healthful and efficient
performance of our mutual job responsibilities and the integrity and reputation of this Office.
Such misconduct is expressly prohibited. Likewise, the illegal possession, use, abuse or sale of a
legal or illegal drug, controlled substance or alcohol outside the workplace is a violation of law
and is expressly prohibited. Any such misconduct by an employee of the Caprock Regional
Public Defender Office diminishes the integrity, public trust and reputation of both our
organization and employees and may result in disciplinary action up to and including
termination.
The Caprock Regional Public Defender Office recognizes that the physical and
psychological health of its employees is critical to its success. Accordingly, it is the right,
obligation and intent of the Caprock Regional Public Defender Office to maintain a drug free,
safe, healthful and efficient working environment for all its employees and to protect the Office’s
and employee’s reputation, integrity, property, equipment and operations.
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M. Confidentiality:
Although we are a public organization, the information contained in our files and records
or otherwise obtained by virtue of our employment is strictly CONFIDENTIAL! Employees are
prohibited from discussing or providing written or verbal information on any aspect of a pending
or closed case or internal procedures and operations with or to any person unless such
information has previously been or required to be discussed in a legally recognized manner, e.g.
a judicial proceeding or a proper request under the Texas Open Record Act.
Requests for information contained in our files or records should be made in writing.
Any questions on this policy and all written requests for information under the Texas Open
Records Act shall be directed immediately to the Chief Public Defender.
Under no circumstances are employees of the Caprock Regional Public Defender Office
to provide confidential information to any person outside of our organization. Failure to strictly
adhere to this policy will result in immediate disciplinary action, including termination.
N. Outside Speaking Engagements:
Employees of the Caprock Regional Public Defender Office are encouraged to participate
in outside activities, which educate and assist in explaining the Caprock Regional Public
Defender Office’s role in the criminal justice process, explain citizen’s individual rights, or
represent the Caprock Regional Public Defender Office in our community. These activities
include speaking engagements, participation in seminars and attendance at community meetings.
Every Caprock Regional Public Defender Office employee has a recognized
Constitutional right to freedom of speech. However, prior approval from the Chief Public
Defender is required whenever an employee undertakes to speak on behalf of the Caprock
Regional Public Defender Office or represent any aspect of our organization to the public.
During normal business hours, all such speaking requests shall be coordinated with our
business schedule and receive prior approval from the Chief Public Defender. Our principal
business commitment takes precedence over outside speaking engagements.
O. Outside and Self Employment:
All employees must have the written approval of the Chief Public Defender prior to
beginning any outside employment or self-employment. Outside employment and self
employment are defined as work for personal economic remuneration. The Chief Public
Defender may give such approval only if the following items are understood and agreed to by the
employee:
1. There is no conflict of interest between the Public Defender job and the proposed
outside work;
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2. The proposed work will not interfere with the employee’s regular work schedule;
3. The proposed work will not, in the opinion of the Chief Public Defender, interfere
with the quality or quantity of the employee’s regular Public Defender work.
The employee should understand that after approval has been granted, if the preceding
items are not met, the employee will be asked to resign either from the outside work or from the
Public Defender’s office. A request for permission to enter outside or self-employment must be
initiated by the employee in writing and shall provide detailed information as to the nature of the
outside work and the hours to be worked.
Any change in the nature or hours of previously approved outside work or self-
employment shall be communicated in writing to the Chief Public Defender for the purpose of
determining continued approval.
Under no circumstances are employees to contract outside or self-employment activities
on Public Defender premises during times for which they are being compensated by the Office.
Employees are not to disrupt or interfere with the productivity of coworkers in furtherance of
outside work or self-employment.
Assistant Public Defenders are not allowed to perform criminal legal work outside the
scope of their work for the office or which is in violation of Article 26.044, of Code of Criminal
Procedure.
P. Acceptance of Gifts:
The practice of Caprock Regional Public Defender Office employees accepting gifts or
gratuities is not only unnecessary and undesirable, but also contrary to the public interest and
law. Therefore, all employees are prohibited from accepting gifts, gratuities or favors from
clients, their families or friends.
All attempts to provide gifts, favors, services or other things of value to employees of the
Caprock Regional Public Defender Office shall be immediately reported to the Chief Public
Defender.
The Chief Public Defender may approve exceptions to this rule, such as flowers or a box
of candy shared by the entire Office.
Q. Use of Public Defender Property for Personal Business:
Office supplies, computer, software and hardware, internet/email access, diskettes,
photocopy equipment, telephone services, etc., are provided to Caprock Regional Public
Defender Office employees for furtherance of official business purposes. These items are not for
15
personal use. They are not an informal fringe benefit of employment with the Caprock Regional
Public Defenders Office.
The reasonable use of telephone for personal local calls of short duration is allowed.
Personal long distance telephone calls (including FAX) are prohibited when charged to the
Caprock Regional Public Defender Office.
R. Media Relations:
It is the intent of the Caprock Regional Public Defender Office to make public
information available to the news media without undue delay, while at the same time, assuring
that any official statements from the Caprock Regional Public Defender Office be handled from
a central point in the Office. All employees should maintain a cordial and helpful relationship
with representatives of the print, broadcast and television media in responding to media inquiries
by referring inquiries to the Chief Public Defender or the appropriate Assistant Public Defender
personnel. Any employee answering a news media inquiry must take full responsibility for any
misquotes, interpretations or misinterpretations. In order to accomplish the above objectives, all
Caprock Regional Public Defender Office employees shall abide by the following rules:
Inquiries Regarding Litigation
1. No information regarding cases within the Caprock Regional Public Defender Office
shall be made public unless previously authorized by the Chief Public Defender.
2. From the time a case is received in the Caprock Regional Public Defender Office to the
final disposition of the case, no employee shall make or authorize the release of any
extra-judicial statement which may possibly have a prejudicial effect on a pending
matter. This includes: a) The character, credibility, reputation or criminal record of a
client or witness, or the identity of a witness, or the expected testimony of a witness; b)
The possibility of a plea or the existence or contents of any admission, confession or
statement given by a client, or that person’s refusal to make a statement; c) Any opinion
as to the guilt or innocence of any person; d) Information that a Public Defender
employee knows or reasonably should know is likely to be admissible as evidence in a
trial that would, if disclosed, create a substantial risk of prejudicing an impartial trial and
e) The prior criminal record (including arrests, indictments or other charges of crimes), or
the character or reputation of any person involved.
3. Responses regarding litigation are further restricted and dictated by Rule 3.07 of the
Texas Disciplinary Rules of Professional Conduct. Of paramount consideration is our
ethical responsibility to avoid prejudicial pre-trial publicity.
Non-Litigation Inquiries:
1. Employees of the Caprock Regional Public Defender Office who may from time to time
be directed or requested by the Chief Public Defender to act as an official representative
16
of the office for a special purpose or occasions are to observe the following guidelines
with appropriate good judgment.
Nothing is done publicly, by word or deed that would discredit the office of the
Caprock Regional Public Defender Office, its officials, employees, or programs;
and the conduct of an official representative is to be appropriate to the occasion.
No new information is made public without prior clearance with the Chief Public
Defender or the designee of the Chief Public Defender.
Any statements made formally or informally are to reflect favorably and
respectfully with reference to the Caprock Regional Public Defender Office.
Statements of facts regarding office programs are not to be issued unless
previously published, and/or approved by the Chief Public Defender.
2. Caprock Regional Public Defender Office employees shall not make any policy
statements as to what the Caprock Regional Public Defender Office will or will not do
unless such decision has previously been made by the Chief Public Defender and
announced by him/her. Policy decisions will only be made and communicated by the
Chief Public Defender or his/her designee.
S. Conduct:
1. Courtesy: Common Courtesy in interacting with other employees,
court personnel, clients and others is required.
2. Attitude: A good attitude is important and required in maintaining a
good working environment.
3. Neatness and Organization: OFFICES MUST BE KEPT CLEAN AND
ORGANIZED. All employees are expected to clean up after themselves and be
organized in their work and break areas.
4. Work stations must be closed down at the end of the day. Monitors,
terminals, radios, etc. need to be turned off before employee leaves for the day.
T. Personal Appearance:
Since the Office of the Caprock Regional Public Defender Office serves the public and is
subject to public scrutiny, each employee has the obligation to view his or her personal
appearance as it reflects on this office. Due to the law office setting and its traditional dress
norms, employees are to dress conservatively and avoid extremes. Also, neatness and good
grooming are important factors in projecting the Caprock Regional Public Defender Office in a
positive public image.
17
U. Computer Policies and Procedures:
The Caprock Regional Public Defender Office maintains a computer network and related
computer equipment for use by the Assistant Public Defenders and staff in the conduct of official
business. All employees must be familiar with and follow office policy and procedure with
respect to use of the computer network and related equipment. The failure to follow these
policies and procedures may result in a loss of access to the network system and disciplinary
action deemed appropriate by the Chief Public Defender, up to and including termination. All
records created or maintained on the system are the property of the office of the Caprock
Regional Public Defender Office and not the individual employees. In addition, many of the
documents on the system are subject to the attorney/client privilege and must be kept
confidential. The management of this office reserves the right to monitor the operation of the
system, to access all of the records within it, and to retain or dispose of those records as it deems
necessary and in accordance with the applicable laws. Subject to the policies set forth herein
below, employees may use the system to store their personal information and send occasional
messages. However, in doing so, the employees accept the organization’s right to ownership of
this system and acknowledge that they have no personal rights of privacy to any messages or
information placed in or received from the system.
The following policies and procedure shall be adhered to with regard to the computer
network and related equipment maintained and utilized by the Caprock Regional Public
Defender Office.
Policies
1. Employees are responsible for the proper use and maintenance of all Public Defender
equipment, including any computers, terminals, printers and other equipment individually
assigned to an employee.
2. All employees are responsible to maintain the security of the network and the
confidentially of all data on the network as required by Rule 1.05 of the Texas Rules of
Professional Conduct and to the extent allowed by the Texas Open Records Act. All
employees shall keep their passwords confidential and are prohibited from allowing any
other person from accessing the network under their password.
3. Client information shall only be accessed when necessary for the conduct of the business
of the Caprock Regional Public Defender Office, and not for personal reasons or
curiosity.
V. Ethics:
Each Assistant Public Defender is charged with the responsibility of strictly adhering to
The Texas Disciplinary Rules of Professional Conduct, the Texas Lawyer’s Creed and the laws
and constitution of the State of Texas and of the United States.
18
W. Construction:
In the event of a conflict between this Office’s Policies and Procedures Manual and the
Texas Tech University Operating Policies and Procedure Manual, the provision which is the
most restrictive shall control.
19
Appendix A
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Job Title: Chief Public Defender Grade: Appointed FLSA: Exempt
Date: 10/01/10 Reports To: Law School Dean
SUMMARY: Appointed by the Director of the Office at the level of Adjunct
Professor/Instructor under the administrative direction of the Director of the Office; responsible
for managing all operations and administration of the Caprock Regional Public Defender Office
(Office); manages all daily activities involving personnel, case handling and resources; develops
and implements policies and procedures for the operations of the office and plans for future
development; provides legal representation for, or ensures defendants are represented in,
criminal proceedings and ensures their constitutional rights are upheld; serves as lead counsel in
some cases; oversees and participates in preparation, presentation and disposition of cases; and
cooperates with the Director and any authorized researchers.
ESSENTIAL DUTIES:
1. Directs, plans, manages and supervises the daily work activities of all professional and support
staff including the maintenance of required reports and invoices;
2. Maintains a regular caseload and provides backup on caseloads of attorneys who are on leave
or are unable to complete specific assignments;
3. Supervises student attorneys following the educational requirements and techniques
established by the Director toward the student’s full development of the advanced skills
necessary to practice law; 12
4. Makes temporary adjustments to caseload policies depending on the overall complexity of
certain cases, the type of cases, attorney experience, support staff experience, or other factors
affecting the delivery of services;
5. Assists the Director in developing organizational and personnel practices and procedures;
6. Assists the Director in writing a standard operating policies and procedures manual;
7. Provides a copy of the standard operating policies and procedures manual to the Oversight
Board or to the participating counties if requested;
8. Recruits, screens, hires, trains, monitors and evaluates staff and additional attorneys in a
manner consistent with the standard personnel policies and procedures of Texas Tech University;
9. Notifies the Texas Task Force on Indigent Defense in writing if additional attorneys are hired
so the budget may be revised to ensure appropriate tracking;
10. Maintains staff and attorneys at sufficient levels to effectively operate a public defender’s
office;
21
11. Notifies the Oversight Board in writing if exceptions to caseload standards are authorized;
12. Deploys a video-conferencing system that can provide connectivity between the public
defender’s office, the law school, the jails and courts of participating counties, and other private
detention facilities used by participating counties through secure networks to ensure the proper
protection of attorney-client confidentiality;
13. Requires attorneys, staff and student attorneys to participate in video-conferencing training to
ensure successful deployment of technology and to ensure attorney-client confidentiality;
14. Provides a breakdown of cases and courts hearing those cases that allows for each
participating county to comply with the reporting requirements of Texas Government Code §
71.0351(c);
15. Operates in a manner that meets the requirements of the Texas Fair Defense Act;
16. Monitors receipt of and make all case assignments to staff attorneys;
17. Screens all cases for conflicts of interest;
18. Provides analyses and advice to staff attorneys as needed;
19. Serves as departmental head in all communications with other entities;
20. Projects anticipated personnel needs, space allocations, and operating allowance needs;
21. Approves requisitions for the payment of invoices;
22. Maintains appropriate fiscal controls in all matters pertaining to expenses and purchases of
services, equipment, and supplies;
23. Prepares and administers the annual operating and capital budget for the Office and controls
budget expenditures to meet budget goals and requirements;
24. Pursues and administers grant funding functions when available;
25. Develops a strategic plan to identify and implement the long-term goals of the Office;
26. Allocates resources for services, equipment, facilities and finances;
27. Communicates with the Law School Dean and Clinic Director as directed;
28. Develops and establishes creative approaches to case management, budgetary restrictions or
other unique problems confronting the Office;
22
29. Interacts with state and local bar associations, various organizations and committees involved
in the improvement of justice and indigent representation systems and services;
30. Performs related duties as required;
31. Works with the Director in the implementation of the clinical programs as designed;
32. Cooperates with any authorized researchers;
33. Attends the weekly classroom component of the clinical section he supervises;
34. Provides legal advice to clients;
35. Interviews clients and witnesses to obtain information necessary for preparing a defense; 14
36. Participates in plea negotiation with prosecutors regarding pending cases;
37. Advises clients on plea offers, options, collateral consequence, and potential for success at
trial or other dispositions of cases;
38. Directs the work of other attorneys, investigators, legal/administrative assistants and student
attorneys in the preparation of a defense;
39. Seeks from the court any necessary funding for outside experts and investigation in the
preparation of a defense;
40. Performs legal research;
41. Searches resources and studies legal records and documents to obtain information applicable
to case issues under consideration and prepares appropriate documents;
42. Obtains documents by subpoena and other discovery methods;
43. Drafts briefs, motions, orders, subpoenas and other legal documents, as well as
correspondence and reports;
44. Identifies any affirmative or de facto defenses and tactical procedural choices for clients;
45. Prepares cases for court and conducts hearings and trials related to pending cases;
46. Provides narrative, descriptive entries in client files of opinions, impressions, and facts
collected;
47. Preserves any potential error for appellate points;
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48. Advises clients of the constitutional rights waived by pleading guilty and the potential direct
and collateral consequences of a guilty plea;
49. Advises non-citizen clients of the specific immigration consequences of criminal convictions;
50. Selects juries, examines and cross-examines witnesses, drafts and argues jury instructions
and argues cases to the jury;
51. Staffs other cases assigned to the office with other attorneys and staff;
52. Responds to telephone calls from non-clients, family members of clients and walk-in
customers, including private attorneys seeking advice and counsel;
53. Agrees to acquiesce to the supervision and direction of the Clinical Director in the proper
clinical, educational techniques and best practices to provide the student attorneys a full, 15
rich educational environment and experience; and
54. Maintains the highest ethical standards of the profession.
55. Agrees to abide by any contractual agreements or grant award terms, conditions and/or
reports approved by the Dickens County Commissioners Court.
SPECIAL LIMITATIONS: The Chief Public Defender may not engage in the private practice
of criminal law or accept anything of value not authorized by Art. 26.044 of the Code of
Criminal Procedure for services rendered as a public defender.
QUALIFICATION REQUIREMENTS: J.D./LL.B. from an accredited law school and meet
the requirements of the Texas Code of Criminal Procedure Article 26.04 for appointment to all
felonies, misdemeanors and juvenile cases in the 7th and 9th Administrative Judicial Regions as
published by the individual counties in accordance with Art. 26, C.C.P., and as approved by the
Texas Task Force on Indigent Defense. Those qualifications, without limitation, include:
1. Be a member in good standing of the State Bar of Texas;
2. Exhibit proficiency and commitment to providing quality representation to defendants in
criminal cases;
3. Have trial experience in the use of and challenge to mental health or forensic expert witnesses
and investigating and presenting evidence at the penalty phase of a criminal trial;
4. Have substantial experience in the practice of criminal law with at least five years experience
practicing criminal law and during that time demonstrated that he or she has the required legal
knowledge and skill necessary to provide representation in felonies, misdemeanors and juvenile
cases and will apply that knowledge and skill with appropriate thoroughness and preparation;
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5. Have tried to verdict as lead counsel a significant number of felony trials, including at least
one homicide trial and other trials for offenses punishable as first or second degree felonies or
capital felonies, showing substantial experience in the practice of criminal law;
6. Have participated and maintained compliance with the requirements of the State Bar of Texas
in continuing legal education courses or other training relating to defense in criminal cases
KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases; considerable knowledge of the organizational, procedural and human aspects in managing
an organization. Skill in interviewing a variety of individuals and soliciting needed information
to determine facts and circumstances, in developing effective defense strategies, in analyzing
cases and applying legal principles, in presenting statements of law clearly and logically in
written and verbal form, in presenting an effective defense in court, and in preparing clear,
concise, accurate and effective legal, policy and procedural guidelines; skill in the management
and conduct of complex negotiations and litigation; skill in legal research, analysis, and the
drafting of litigation documents; skill in oral advocacy; skill in the use of expert witnesses and
familiarity with common areas of forensic investigation, including fingerprints, ballistics,
forensic pathology, and DNA evidence; skill in the investigation, preparation, and presentation
of punishment evidence; skill in the elements of trial advocacy, such as jury selection, cross-
examination of witnesses, and opening and closing statements; skill in supervising professional,
administrative and clerical employees; skill in managing multiple projects simultaneously; skill
in communicating effectively with diverse groups of individuals utilizing tact and diplomacy;
skill in preparing and administering budgets; ability to handle highly stressful criminal cases;
ability to develop strategic plans; ability to adjust to rapidly fluctuating situations; ability to
operate a personal computer and basic office equipment; ability to establish and maintain
effective working relationships with subordinates, co-workers, employees, governmental
department heads, elected/appointed officials, outside organizations, attorneys, the news media
and the general public.
PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant will be subject to sitting, standing, walking, reaching and handling to
perform the essential functions.
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Job Title: Assistant Public Defender I Grade: Appointed/Instructor FLSA: Exempt
Date: 4/1/11 Reports To: Chief Public Defender
SUMMARY: Appointed by the Chief Public Defender, is responsible providing legal
representation for defendants in criminal proceedings and ensuring their constitutional rights are
upheld, to serve as lead counsel in some cases, to oversee and participate in preparation,
presentation and disposition of cases, including misdemeanors, juvenile cases and felonies, and
to supervise, train and work with assigned student attorneys.
ESSENTIAL DUTIES:
1. Provides legal advice to clients;
2. Interviews clients and witnesses to obtain information necessary for preparing a defense;
3. Participates in plea negotiation with prosecutors regarding the pending case;
4. Advises clients on plea offers, options, collateral consequence, and potential for success at
trial or other dispositions of cases;
5. Directs the work of investigators, legal/administrative assistants and student attorneys in the
preparation of a defense;
6. Seeks from the Court any necessary funding for outside experts and investigation in the
preparation of a defense;
7. Performs legal research;
8. Searches resources and studies legal records and documents to obtain information applicable
to case issues under consideration and prepare appropriate documents;
9. Obtains documents by subpoena and other discovery methods;
10. Drafts briefs, motions, orders, subpoenas and other legal documents, as well as
correspondence and reports;
11. Identifies any affirmative or de facto defenses and tactical procedural choices for clients;
12. Prepares cases for court and conducts hearings and trials related to pending cases;
13. Provides narrative, descriptive entries in client files of opinions, impressions, and facts
collected;
14. Preserves any potential error for appellate points;
26
15. Advises clients of the constitutional rights waived by pleading guilty and the potential direct
and collateral consequences of a guilty plea;
16. Advises non-citizen clients of the specific immigration consequences of criminal convictions;
17. Selects juries, examines and cross-examines witnesses, drafts and argues jury instructions
and argues cases to the jury;
18. Staffs other cases assigned to the office with other attorneys and staff;
19. Responds to telephone calls from non-clients, family members of clients and walk-in
customers, including private attorneys seeking advice and counsel;
20. Supervises student attorneys in the full development of skills necessary to practice law;
21. Attends the weekly classroom component of the clinics;
22. Agrees to acquiesce to the supervision and direction of the Clinical Director in the proper
clinical, educational techniques to provide the student attorneys a full, rich education
environment and experience;
23. Cooperates fully with any researcher who has authorized access to the Office; and
24. Maintains the highest ethical standards of the profession.
SPECIAL LIMITATION: An Assistant Public Defender I may not engage in the private
practice of criminal law or accept anything of value not authorized by Art. 26.044 of the Code of
Criminal Procedure for services rendered as a public defender.
QUALIFICATION REQUIREMENTS: J.D./LL.B. from an accredited law school and meet
the requirements of the Texas Code of Criminal Procedure Article 26.04 for appointment to all
felonies, misdemeanors and juvenile cases in the 7th and 9th Administrative Judicial Regions as
published by the individual counties in accordance with Art. 26, C.C.P., and as approved by the
Texas Task Force on Indigent Defense. Those qualifications, without limitation, include:
1. Be a member in good standing of the State Bar of Texas;
2. Exhibit proficiency and commitment to providing quality representation to defendants in
criminal cases;
3. Have trial experience in the use of and challenge to mental health or forensic expert witnesses
and investigating and presenting evidence at the penalty phase of criminal trial;
4. At least two years experience in criminal law and during that time demonstrated that he or she
has the required legal knowledge and skill necessary to provide representation in felonies,
27
misdemeanors and juvenile cases and will apply that knowledge and skill with appropriate
thoroughness and preparation;
5. Have tried to verdict as lead counsel a significant number of trials;
6. Have participated and maintained compliance with the requirements of the State Bar of Texas
in continuing legal education courses or other training relating to defense in criminal cases.
KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases. Skill in interviewing a variety of individuals and soliciting needed information to
determine facts and circumstances, in developing effective defense strategies, in analyzing cases
and applying legal principles, in presenting statements of law clearly and logically in written and
verbal form, in presenting an effective defense in court, and in preparing clear, concise, accurate
and effective legal, policy and procedural guidelines; skill in the management and conduct of
complex negotiations and litigation; skill in legal research, analysis, and the drafting of litigation
documents; skill in oral advocacy; skill in the use of expert witnesses and familiarity with
common areas of forensic investigation, including fingerprints, ballistics, forensic pathology, and
DNA evidence; skill in the investigation, preparation, and presentation of mitigating evidence;
skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses,
and opening and closing statements; skill in managing multiple projects simultaneously; skill in
communicating effectively with diverse groups of individuals utilizing tact and diplomacy;
ability to handle highly stressful criminal cases; ability to adjust to rapidly fluctuating situations;
ability to operate a personal computer and basic office equipment; ability to establish and
maintain effective working relationships with subordinates, co-workers, other employees,
governmental department heads, elected/appointed officials, outside organizations, attorneys, the
news media and the general public.
PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.
28
Job Title: Assistant Public Defender II Grade: Appointed/Instructor FLSA: Exempt
Date: Anticipated within 2 years of 10-1-10 Reports To: Chief Public Defender
SUMMARY: Appointed by the Chief Public Defender, is responsible providing legal
representation for defendants in criminal proceedings and ensuring their constitutional rights are
upheld, to serve as lead counsel in some cases, to oversees and participate in preparation,
presentation and disposition of cases, including felonies, juvenile cases and misdemeanors, and
to supervise, train and work with assigned student attorneys.
ESSENTIAL DUTIES:
1. Provides legal advice to clients;
2. Interviews clients and witnesses to obtain information necessary for preparing a defense;
3. Participates in plea negotiation with prosecutors regarding the pending case;
4. Advises clients on plea offers, options, collateral consequence, and potential for success at
trial or other dispositions of cases;
5. Directs the work of investigators, legal/administrative assistants and student attorneys in the
preparation of a defense;
6. Seeks from the Court any necessary funding for outside experts and investigation in the
preparation of a defense; 20
7. Performs legal research;
8. Searches resources and studies legal records and documents to obtain information applicable
to case issues under consideration and prepare appropriate documents;
9. Obtains documents by subpoena and other discovery methods;
10. Drafts briefs, motions, orders, subpoenas and other legal documents, as well as
correspondence and reports;
11. Identifies any affirmative or de facto defenses and tactical procedural choices for clients;
12. Prepares cases for court and conducts hearings and trials related to pending cases;
13. Provides narrative, descriptive entries in client files of opinions, impressions, and facts
collected;
14. Preserves any potential error for appellate points;
29
15. Advises clients of the constitutional rights waived by pleading guilty and the potential
direct and collateral consequences of a guilty plea;
16. Advises non-citizen clients of the specific immigration consequences of criminal convictions;
17. Selects juries, examines and cross-examines witnesses, drafts and argues jury instructions
and argues cases to the jury;
18. Staffs other cases assigned to the office with other attorneys and staff;
19. Responds to telephone calls from non-clients, family members of clients and walk-in
customers, including private attorneys seeking advice and counsel;
20. Supervises student attorneys in the full development of skills necessary to practice law;
21. Attends the weekly classroom component of the clinics;
22. Agrees to acquiesce to the supervision and direction of the Clinical Director in the proper
clinical, educational techniques to provide the student attorneys a full, rich education
environment and experience;
23. Cooperates fully with any researcher who has authorized access to the Office; and
24. Maintains the highest ethical standards of the profession. 21
SPECIAL LIMITATION: An Assistant Public Defender II may not engage in the private
practice of criminal law or accept anything of value not authorized by Art. 26.044 of the Code of
Criminal Procedure for services rendered as a public defender.
QUALIFICATION REQUIREMENTS: J.D./LL.B. from an accredited law school and meet
the requirements of the Texas Code of Criminal Procedure Article 26.04 for appointment to all
misdemeanors and juvenile cases in the 7th and 9th Administrative Judicial Regions as published
by the individual counties in accordance with Art. 26, C.C.P., and as approved by the Texas Task
Force on Indigent Defense. Those qualifications, without limitation, include:
1. Be a member in good standing of the State Bar of Texas;
2. Exhibit proficiency and commitment to providing quality representation to defendants in
criminal cases;
3. Demonstrated that he or she has the required legal knowledge and skill necessary to provide
representation in cases assigned to the Office and will apply that knowledge and skill with
appropriate thoroughness and preparation;
4. Have participated and maintained compliance with the requirements of the State Bar of Texas
in continuing legal education courses or other training relating to defense in criminal cases.
30
KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases. Skill in interviewing a variety of individuals and soliciting needed information to
determine facts and circumstances, in developing effective defense strategies, in analyzing cases
and applying legal principles, in presenting statements of law clearly and logically in written and
verbal form, in presenting an effective defense in court, and in preparing clear, concise, accurate
and effective legal, policy and procedural guidelines; skill in the management and conduct of
complex negotiations and litigation; skill in legal research, analysis, and the drafting of litigation
documents; skill in oral advocacy; skill in the use of expert witnesses and familiarity with
common areas of forensic investigation, including fingerprints, ballistics, forensic pathology, and
DNA evidence; skill in the investigation, preparation, and presentation of mitigating evidence;
skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses,
and opening and closing statements; skill in managing multiple projects simultaneously; skill in
communicating effectively with diverse groups of individuals utilizing tact and diplomacy.
Ability to handle highly stressful criminal cases; ability to adjust to rapidly fluctuating situations;
ability to operate a personal computer and basic office equipment; ability to establish and
maintain effective working relationships with subordinates, co-workers, other employees,
governmental department heads, elected/appointed officials, outside organizations, attorneys, the
news media and the general public.
PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye 22
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.
31
Job Title: Legal/Administrative Assistant – Office Manager Grade: Staff FLSA: Non-exempt
Date: 10/01/10 Reports To: Chief Public Defender
SUMMARY: Under the general supervision of the Chief Public Defender, provides a variety of
complex and technical legal document preparation and other secretarial support to attorneys,
investigators and other staff, which are often confidential and may include the use of problem
solving skills and independent decision-making; prepares files and materials for use in court
appearances; acts as the office manager; and performs other duties as assigned.
ESSENTIAL DUTIES:
1. Working within critical deadlines, word processes a variety of legal documents, which may
include pleadings, motions, orders, warrants, petitions, subpoenas, witness lists, jury instructions,
voir dire questions, verdict forms, reports, general correspondence and other materials from
drafts, notes, verbal instructions, prior documents and dictated tapes;
2. Proofreads and edits drafts and completed materials for format, accuracy, grammar, spelling,
punctuation, English usage and consistency;
3. Performs a variety of general office support work on a relief or as-needed basis, including
maintaining accurate records and files and providing coverage for other assignments;
4. Uses a variety of office equipment such as computer terminals, printers, scanners, and copy
reproduction and FAX equipment as well as standard office software such as word processing,
spreadsheet and database applications;
5. Provides a variety of support to attorneys and student attorneys tracking and ensuring that all
documents have been prepared and processed and appropriate actions taken in a timely manner;
prepares periodic spreadsheets to track status of cases;
6. Verifies case law and code citations and quotations found in motions and other documents,
using the law library or electronic sources;
7. Coordinates the scheduling of appointments between attorneys and student attorney of the
Office and attorneys in the various District and County Attorney's Offices and defendants in jail
and on bond;
8. Obtains and maintains records regarding prior convictions for clients;
9. Assists with compilation of statistical data; 23
10. Acts as office manager ensuring that supplies are maintained, upkeep of the office is
sufficient, invoices are processed, purchase orders are processed as needed and other
administrative functions are properly carried out; and
32
11. Provides limited supervision to the other legal assistants, if any, and interns in the office,
ensuring that work is properly carried out as directed by the attorneys, student attorneys, and
investigators.
QUALIFICATION REQUIREMENTS: Any combination of education and experience that
would provide the individual the ability to be proficient in the essential duties listed. Applicant
must be able to type at a net rate of 50 words per minute. At least two years of experience in
processing legal documents in a court, criminal justice or legal office setting is preferred.
KNOWLEDGE, SKILLS, AND ABILITIES: Knowledge of legal office and criminal justice
system terminology, forms, documents and procedures, including ProDoc/SOS; knowledge of
the standard format for a variety of legal documents and forms, including briefs, motions,
opinions, subpoenas and warrants; knowledge of the use of specified computer applications
involving word processing, spreadsheets and standard report generation; knowledge of standard
office practices and procedures, including filing and the operation of standard office equipment;
knowledge of record keeping principles and practices; knowledge of correct business English,
including spelling, grammar and punctuation; general knowledge of the organizational,
procedural and human aspects in supervising within an organization; skill in independently
preparing a variety of legal documents and forms; skill in editing and reviewing for accuracy,
format and correct English usage technical and complex legal and court documents; skill in using
applicable legal office terminology, forms, documents and procedures in the course of the work;
skill in performing detailed legal office support work; skill in composing correspondence or
documents independently or from brief instructions; ability to be flexible and able to
competently perform in a variety of assignment areas; ability to use sound independent judgment
in following and applying appropriate laws, codes, regulations, policies and procedures; ability
to maintaining accurate legal office files; ability to organize one’s own work, set priorities, work
in a high volume setting and meet critical deadlines; ability to establish and maintain effective
working relationships with those contacted in the course of the work. Also, additional experience
in grant writing is preferred but not required.
PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.
33
Job Title: Investigator Grade: Staff FLSA: Non-exempt
Date: 10/1/12 Reports To: Chief Public Defender
SUMMARY: Under the general supervision of the Chief Public Defender, is responsible for
interviewing witnesses, clients and victims in the conduct of investigations; obtains, preserves,
records and analyzes evidence for the defense of clients represented by the Public Defender
Office; locates witnesses for the defense; and other duties as assigned.
ESSENTIAL DUTIES:
1. Plans, directs and conducts investigations to support the legal defense of criminal cases;
2. Establishes and maintains informant contacts to develop information relevant to cases;
3. Conducts surveillance stakeouts as necessary;
4. Identifies, locates and interviews clients to gather financial and factual statements for
screening and intake purposes;
5. Identifies, locates and interviews witnesses, complainants, law enforcement officials and
representatives of other agencies to gather information on events surrounding cases;
6. Contacts and maintains liaison with outside agencies and expert witnesses as reference
resources for potential testimony in highly specialized fields;
7. Locates, obtains, evaluates and preserves documentary evidence from a variety of sources;
8. Confers with attorneys and student attorneys on points of law and procedure;
9. Writes and dictates reports of contacts and findings including statements, scene descriptions
and analysis of physical evidence;
10. Appears as a witness and testifies at trials, hearings and motions;
11. Participates in training sessions;
12. Operates and maintains a variety of photographic, tape, graphic and projection equipment,
including being proficient in presentation software;
13. Prepares, presents, and maintains records and reports; and
14. Willingly accepts tasks and cooperates with other the attorneys, students attorneys and other
staff.
34
QUALIFICATION REQUIREMENTS: Three years of substantial criminal investigative
experience, paralegal experience, or related education, training and/or investigative experience
which provides the knowledge and skill requirements.
KNOWLEDGE, SKILLS, AND ABILITIES: Knowledge of the techniques, principles and
methods used in criminal investigations; knowledge of the methods and techniques of screening,
evaluating and preparing evidence and exhibits for trial; knowledge of the Texas Penal Code and
the Constitution; general knowledge of the criminal justice system, state department of
corrections and related agencies; skill to operate photographic, recording and graphic equipment;
skill to prepare and set up electronic presentations devices (i.e. PowerPoint, projectors, document
cameras, etc); ability to keep accurate notes and records; ability to prepare and present clear,
concise and comprehensive reports; ability to read and understand legal codes, cases and
technical material in such disciplines as medicine, physical and social sciences; ability to obtain
information through interview and interrogation; ability to assess the credibility of witnesses;
ability to gather and analyze facts and evidence and draw valid conclusions; ability to adjust to
workload changes and work under stress to meet deadlines; ability to organize and prioritize
workload to manager cases efficiently; ability to testify in court in a direct, clear and concise
manner; ability to establish and maintain effective working relationships with attorneys,
representatives of other agencies, clients, family member of clients, the public and co-workers.
PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.
35
Job Title: Director Grade: Appointed FLSA: Exempt
Date: Current through 09/30/11 Reports To: Law School Dean
SUMMARY: Appointed by the Dean of the Law School at the level of Associate Professor and
under the administrative direction of the Dean of the Law School, is responsible for the initial
organization of the Office including all matters involving setting up the office, securing the
agreement with the Counties and the Task Force for Indigent Defense, the initial concept and
design, helping organize the Oversight Board whose primary responsibility will be to choose the
governmental entity or non-profit corporation to become the Public Defender Office, performing
the application and hiring process for the Chief Public Defender, to assist the Chief Public
Defender in the development and implementation of operating and administrative policies and
procedures for the Office and to make long range plans and set goals for future development.
ESSENTIAL DUTIES:
1. To conceptualize, design and implement the creation of the Office;
2. To help direct, plan, manage and supervise the work activities of the professional and support
staff during the first year;
3. To recruit, screen, select and train the Chief Public Defender, to assist the Chief Public
Defender with the selection of additional employees and to help monitor/evaluate staff
performance;
4. Help provide analysis and advice to staff attorneys as needed; 26
5. Assist the Chief Public Defender in developing organizational practices and procedures and
standard operating procedures and policies;
6. Until October 1, 2011, provide assistance to the Chief Public Defender in projecting personnel
needs, space allocations, and operating allowance needs while assisting in establishing
appropriate fiscal controls in all matters pertaining to reoccurring expenses and the purchase of
services, equipment, and supplies conforming policies and procedures to established operating
procedures of the University;
7. At all times to help develop a strategic plan to identify and implement the long-term goals of
the Office;
8. Help develop and establish creative approaches to case management, budgetary restrictions or
other unique problems confronting the Office;
9. To train instructors for the criminal clinical programs;
10. To supervise instructors and direct the establishment of proper syllabi and teaching procedure
and techniques;
36
11. To perform and supervise the classroom component for the clinics;
12. To work with the Chief Public Defender in outcome assessment and grading procedures for
the students;
13. To establish clinical manuals and procedures;
14. To train student attorneys and instructors on their duties and responsibilities;
15. To assist student attorneys in securing licensing from the State Bar of Texas;
QUALIFICATION REQUIREMENTS: J.D. from an accredited law school and be on staff at
the Law School as an Associate Professor or above, and be a member in good standing of the
State Bar of Texas.
KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases; considerable knowledge of the organizational, procedural and human aspects in managing
an organization. Skill in interviewing a variety of individuals and soliciting needed information
to determine facts and circumstances, in developing effective defense strategies, in analyzing
cases and applying legal principles, in presenting statements of law clearly and logically in
written and verbal form, in presenting an effective defense in court, and in preparing clear,
concise, accurate and effective legal, policy and procedural guidelines; skill in the management
and conduct of complex negotiations and litigation; skill in legal research, analysis, and the
drafting of litigation documents; skill in oral advocacy; skill in the use of expert witnesses and
familiarity with common areas of forensic investigation, including fingerprints, ballistics,
forensic pathology, and DNA evidence; skill in the investigation, preparation, and presentation
of punishment evidence; skill in the elements of trial advocacy, such as jury selection, cross-
examination of witnesses, and opening and closing statements; skill in supervising professional,
administrative and clerical employees; skill in managing multiple projects simultaneously; skill
in communicating effectively with diverse groups of individuals utilizing tact and diplomacy;
skill in preparing and administering budgets. Ability to handle highly stressful criminal cases;
ability to develop strategic plans; ability to adjust to rapidly fluctuating situations; ability to
operate a personal computer and basic office equipment; ability to establish and maintain
effective working relationships with subordinates, co-workers, employees, Department Heads,
Elected/Appointed Officials, outside organizations, attorneys, the news media and the general
public.
PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.
37
Exhibit H
Curriculum Vitae & Affidavit of Philip Wischkaemper
Philip Wischkaemper
915 Texas Ave
Lubbock, Texas 79401
763-9900
Director of Professional Development for the Lubbock Private Defender Office
Assistant County Attorney 3/89 - 3/90
HOCKLEY COUNTY ATTORNEYS OFFICE LEVELLAND, TX
Supervisor: Kirk Palmer
Duties: Screening, filing and trial of misdemeanor and juvenile cases.
Associate 3/90 - 10/91
WISCHKAEMPER & MARTINEZ, ATTORNEYS AT LAW LUBBOCK, TX
SUPERVISOR: Bill Wischkaemper
Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
Trial and appeals.
Partner 10/91 - 2/92
KLINE & WISCHKAEMPER, ATTORNEYS AT LAW LUBBOCK, TX
Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
Trial and appeals.
Partner 2/92-10/94
KLINE, SNUGGS & WISCHKAEMPER, ATTORNEYS AT LAW LUBBOCK, TX
Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
Trial and appeals.
Partner 10/94 - 10/01
SNUGGS & WISCHKAEMPER, ATTORNEYS AT LAW LUBBOCK, TX
Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
Trial and appeals. Also expanded practice into capital trial & post-conviction
Practice.
CAPITAL ASSISTANCE ATTORNEY 10/01 – 10/10
Texas Criminal Defense Lawyers Association Lubbock, TX
Supervisor: Joseph Martinez, Executive Director, TCDLA
Duties: Coordinating training, resources and technical assistance to attorneys
representing citizens accused of capital crimes.
Deputy Director 10/10 – 12/13
Regional Public Defender for Capital Cases Lubbock, Texas
Supervisor: Jack Stoffregen, Chief Defender
Duties: Assist Chief Defender
Professional Development Director 12/13 - Present
Lubbock Private Defender Office
Supervisor: Board of LPDO
Duties: Insure quality representation for indigent clients in Lubbock County.
EDUCATION
High School Diploma 5/74
LUBBOCK CHRISTIAN HIGH SCHOOL LUBBOCK, TX
Undergraduate Studies >83 - >84
SOUTH PLAINS JR. COLLEGE LEVELLAND, TX
B.A. of General Studies - Emphasis in history 7/86
TEXAS TECH UNIVERSITY LUBBOCK, TX
GPA: 3.89
MAGNA CUM LAUDE
Major: General Studies with Emphasis in History
Minor: Political Science and English
Doctor of Jurisprudence 5/89
TEXAS TECH UNIVERSITY SCHOOL OF LAW LUBBOCK, TX
BAR ADMISSIONS
Χ Admitted in May 1989 to all Texas Courts.
Χ Admitted in November 1989 to practice in The Northern District of Texas.
Χ Admitted in November 1992 to practice in the United States 5th Circuit Court of Appeals.
Χ Admitted in August 1997 to practice in the United States Supreme Court.
PROFESSIONAL
ASSOCIATIONS
# Texas Criminal Defense Lawyers Association - Director
# Lubbock Criminal Defense Lawyers Association - President 1994 - 1995
# Texas Bar Association
# Lubbock County Bar Association
INSTRUCTIONAL
EXPERIENCE
AND SEMINARS
ATTENDED
• Attendee-Brian Shechmeister Death Penalty College, Santa Clara, California, August, 2001
• Course Director and Presenter-2002 Capital Murder Seminar, Galveston, Texas, March, 2002
• Attendee-Life in the Balance, Kansas City, Missouri, March, 2002
• Faculty-First Annual Capital Trial Advocacy Course, Austin, Texas, January, 2002
rd
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 23 Annual Capital Punishment Training
Conference, Airle Virginia, July, 2002
• Co-Course Director and Presenter, Texas Capital Defense Conference, Corpus Christi, Texas, October, 2002
• Co-Course Director and Presenter, (DNA Presentation) Post-Conviction Practice, Houston, Texas, January,
2003
• Course Director-Capital Trial Advocacy-Future Dangerousness, Plano, Texas, January, 2003
• Faculty-Second Annual Capital Trial Advocacy Course, Plano, Texas, January, 2003
• Faculty-Texas Criminal Trial College, Huntsville, Texas, March, 2003
• Course Director, Texas Section-Life in the Balance, Austin, March, 2003
th
• Presenter-16 Annual Rusty Duncan Seminar and Meeting, San Antonio, Texas, June 2003
th
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 24 Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2003
• Course Director-Habeas Nuts and Bolts, Plano, Texas, July, 2003
• Co-Course Director-Capital Issues, McAllen, Texas, August, 2003
• Co-Course Director-Capital Issues 2003, MO Ranch, Hunt, Texas August 2003
• Course Director-First Annual Texas Forensics Seminar, Plano, Texas, August 2003
• Faculty-Third Annual Capital Trial Advocacy Course, Plano, Texas , January, 2004
• Course Director-Habeas Corpus Workshop, San Antonio, Texas, February, 2004
• Presenter-A day in the Life of a Criminal Defense Lawyer, College Station, Texas, February 2004
• Course Director and Presenter - El Paso Indigent Defense, El Paso, Texas, March, 2004
• Course Director and Presenter-Dallas Indigent Defense, Dallas, Texas, March, 2004
• Faculty-Cross Exam and Impeachment, Plano, Texas, May, 2004
• Faculty-Trial Advocacy in Criminal Cases, Plano, Texas March 2004 Faculty-Capital Voir-Dire, Plano, Texas,
July, 2004
•
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 25th Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2004
• Presenter-Houston Bar Association (Post-Conviction Practice) Houston, Texas, July, 2004
• Co-Course Director-Second Annual Texas Forensics Seminar, Plano, Texas, August, 2004
• Faculty-National Institute for Trial Advocacy (Capital), Houston, Texas, September, 2004
• Presenter-Death Penalty Defense, Warm Springs, Oregon, October, 2004
• Co-Course Director and Presenter (DNA Presentation) Post-Conviction Seminar, Houston, Texas, January,
2005
• Co-Course Director-Capital Murder and Mental Health, Houston, February, 2005
• Faculty-Texas Criminal Trial College, Huntsville, Texas, March, 2005
• Faculty-Trial Advocacy in Criminal Cases, Plano, Texas, May 2005
• Course Director-El Paso Indigent Defense Seminar, El Paso, Texas, May 2005
• Course Director-Dallas Indigent Defense Seminar, Dallas, Texas, May, 2005
• Presenter-Indigent Defense Certification, Houston, Texas, May 2005
• Faculty-Capital Voir-Dire, Plano, Texas, June, 2005
• Faculty-Cross Exam and Impeachment-Plano, Texas, August, 2005
• Co-Course Director-Third Annual Texas Forensics Seminar, Dallas, Texas, September, 2005
• Co-Course Director, Faculty and Presenter-Fourth Annual Capital Trial Advocacy Course, Plano, Texas,
January 2005
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 26th Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2005
• Co-Course Director and Presenter, Capital Murder Seminar, South Padre Island, Texas, November, 2005
• Faculty-Cross Exam and Impeachment-Plano, Texas, December, 2005
• Co-Course Director and Presenter-Capital Murder, Dallas, Texas, March 2006
• Faculty- Texas Criminal Trial College, Huntsville, Texas, March 2006
• Co-Course Director, El Paso Voir Dire Program, May 2006
• Co-Course Director, Dallas Public Defender Program, May 2006
• Co-Course Director, Experts and Pretrial Motions, Plano, Texas, May 2006
• Co-Course Director and Faculty, Capital Trial Advocacy Program, Plano, Texas, May 2006
• Presenter, Capital Murder Update, Rusty Duncan Advanced Course, San Antonio, Texas, June 2006
• Co-Course Director and Faculty, Capital Voir Dire, Plano, Texas 2006
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 26th Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2006
• Faculty, Criminal Trial Advocacy Program, Plano, Texas, August, 2006
• Co-Course Director, Punishment Phase of a Capital Case, Plano, Texas August, 2006
• Co-Course Director, Fourth Annual Forensics Seminar, Dallas, Texas, August 2006
• Co-Course Director, Cross Examination Seminar, Plano Texas, November 2006
• Co-Course Director, Padre Island Capital Murder Seminar, November 2006
• Co-Course Director, Capital Voir Dire, Plano, Texas, April 2007
• Course Director, Texas Track, Life in the Balance, Dallas, Texas, March 2007
• Course Director, Habeas Corpus Litigation, Plano, Texas, March 2007
• Co-Course Director, Punishment Phase at Trial, Plano, Texas, March 2007
• Presenter, Annual Rusty Duncan Advanced Criminal Law Course, San Antonio, Texas, June 2007
• Co-Course Director and Faculty, Capital Mitigation, Plano, Texas, July 2007
• Presenter, State Advanced Criminal Law Course, Houston, Texas, July 2007
• Co-Course Director and Faculty, Capital Trial Advocacy, Plano, Texas, August 2007
• Faculty, Criminal Trial Advocacy Program, Plano, Texas, August 2007
• Co-Course Director, One Day Capital Video Seminar, El Paso, Texas, August 2007
• Co-Course Director, Fifth Annual Forensics Seminar, Dallas, Texas, October, 2007
• Co-Course Director, Capital Murder Seminar, South Padre Island, Texas, November 2007
• Faculty, Cross Exam Seminar, Plano Texas, December 2007
• Faculty, Evidence Boot Camp, Plano, Texas, February, 2008
• Co-Course Director, Capital Murder, Habeas and Mental Health Seminar, San Antonio, Texas, February,
2008
• Co-Course Director, Death of a Child Seminar, Plano, Texas, March 2008
• Co-Course Director, Capital Voir Dire Seminar, Plano, Texas, April, 2008
• Presenter, Rural Association for Court Administration, Waco, Texas, April 2008
• Co-Course Director, Capital Trial Advocacy, Plano, Texas May, 2008
• Presenter and Faculty, Indigent Defense-El Paso, Texas, May 2008
• Co-Course Director, One Day Capital Video Seminar, Tyler, Texas, June 2008
th
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 28 Annual Capital Punishment Training
Conference, Airlie Virginia, July 2008
• Co-Course Director, Mitigation Seminar, Plano, Texas, July 2008
• Co-Course Director, The mind and Criminal Defense, Plano, Texas, July, 2008
• Presenter, State Bar Advanced Criminal Law Course, San Antonio, Texas, July 2008
• Co-Course Director, Mitigation Seminar, Lubbock, Texas, August 2008
• Co-Course Director, Expert Witnesses in Capital Cases, Plano, Texas, August 2008
• Faculty, Presenter, Criminal Trial Advocacy Program, Plano, Texas, August 2008
• Co-Course Director, Sixth Annual Forensics Program, Dallas, Texas, October 2008
nd
• Presenter, 2 Annual Red Mass Ethics Seminar, Lubbock, Texas October 2008
• Presenter, SMU Capital Murder Clinic, Dallas, Texas, October 2008
• Co-Course Director and Presenter, Capital Murder Seminar, South Padre Island, Texas, November 2008
• Faculty, Cross Exam and Impeachment, Plano, Texas, December 2008
• Faculty, Evidence Boot Camp, Plano, Texas, January, 2009
• Co-Course Director, Capital Murder Seminar, Houston, Texas, February, 2009
• Co-Course Director, Capital Voir Dire, Plano, Texas May 2009
• Co-Course Director, Capital Trial Advocacy, Plano, Texas May 2009
• Co-Course Director, Mind and Criminal Defense, Plano, Texas, May, 2009
• Co-Course Director, Capital Mitigation, Plano, July 2009
• Presenter, State Bar Advanced Criminal Law Course, Dallas, Texas, July 2009
• Presenter, Criminal Defense Criminal Trial Skills and Trial Law Program, Plano, Texas, August, 2009
• Co-Course Director and Presenter, Experts, Plano, Texas, March 2010
• Co-Course Director, TCDLA Capital/Habeas Seminar, Austin, Texas February 2010
• Co-Course Director, Capital Voir Dire, Plano, Texas, March 2010
• Co-Course Director, Capital Trial Advocacy, Plano, Texas, May 2010
• Faculty, Capital Voir Dire, Plano, Texas 2011
• Presenter and Faculty, Trial Advocacy for Military Lawyers, Plano, Texas, August 2011
• Faculty, Capital Voir Dire, Plano, Texas 2012
• Co-Course Director, State Bar of Texas Advanced Criminal Law-Forensic Track, San Antonio, Texas, July
2012
• Faculty, Capital Voir Dire, Houston, June, 2013
• Faculty, Nuts and Bolts, Lubbock, January 2014
• Faculty, Dallas Indigent Defense, February, 2014
• Faculty, El Paso Forensics and Experts, September, 2014
Publications
• Editor - Texas Criminal Defense Lawyers Trial Notebook
• Co-Author – Texas Punishment-A Source Book for Defense Lawyers
• Original Editor of Texas Criminal Defense Lawyers Penal Code and Code of Criminal Procedure
• Former Managing Editor – Texas Criminal Defense Lawyers Capital Litigation Update
• Original Editor of Texas Criminal Defense Lawyers Non-Penal Code Crimes Annotated
Trial Level Experience in Capital Cases*
• United States v. Eli Mungia – Lubbock Division of the Northern District of Texas, 1994
nd
• State v. Robert Salizar – 72 District Court of Lubbock County, Texas, 1998
th
• State v. Eddie Rowton – 154 District Court of Lamb County, Texas, 1998
th
• State v. Raymond Leyva – 64 District Court of Hale County, 1997
th
• State v. Felton White – 137 District Court of Lubbock, County, 2000
st
• State v. Michael Arispe – 121 District Court of Terry County, Texas 1996
th
• State v. Eric Christensen – 364 District Court of Lubbock County, Texas 1998
th
• State v. Jesus Rameriz – 154 District Court of Lamb County, Texas 1997
th
• State v. Wesley Weaver - 237 District Court of Hockley County, Texas 1996
th
• State v. Arthur Wayne Johnson – 99 District Court, Lubbock County, Texas 2000
rd
• State v. Michael Rodriguez – 283 District Court, Dallas County, Texas 2001**
*I was appointed or hired as co-counsel on the above cases. Only 3 went to verdict as Death Penalty cases. The
remainder were either plead or the state or government waived death.
**I was hired as co-counsel on this case but withdrew prior to trial because I accepted a position as Capital Assistance
Counsel for TCDLA.
Post-Conviction Experience in Capital Cases
• Michael McBride v. Johnson
• Odell Barnes v. Johnson
• Michael Blair v. Johnson and Ex Parte Michael Blair
• Bobby Ray Hopkins v. Johnson
• Jaime Elizalde v. Dretke
• Joe Lee Guy v. Johnson
• Michael Rosales v. Johnson
• United States v. Bruce Webster
AFFIDAVIT
THE ST A TE OF TEXAS §
§
COUNTY OF LUBBOCK §
Before me, the undersigned authority, personally appeared Philip Wischkaemper, who upon his
oath deposed and stated the following:
"My name is Philip Wischkaemper. My Texas Bar number is 21802750. I have
been licensed to practice law in Texas since 1989. I am also licensed in the Federal
District Courts of the Northern District of Texas, The United States Fifth Circuit Court
of Appeals and the United States Supreme Court.
Currently, I work for the Lubbock County Private Defenders Office as the
Professional Development Director. My duties there include training all of the
appointed attorneys in Lubbock County, as well as overseeing and assisting the
appointed attorneys on their cases, as well as their overall progress as lawyers. My CV
is attached hereto and incorporated herein for all purposes as if set forth verbatim.
Mr. Vargas's new attorney, Frank Sellers, approached me about this case. Prior
to executing this affidavit, I was furnished by Mr. Sellers a copy of his Motion for New
Trial, an Affidavit executed by his client, Mr. Vargas, an Affidavit executed by Mr.
Vargas' Mother, Darcy Vargas and the offense report of Trooper Garza, the arresting
officer.
Mr. Sellers informed me that Vargas was represented by Lubbock-based
attorney Artie Aguilar. I also was informed that Aguilar was court-appointed due to
Vargas's indigent status. Sellers explained to me that Mr. Vargas was never shown any
of the discovery, never discussed the viability of a motion to suppress with his previous
attorney, never discussed a 38.23 jury instruction in the event a motion to suppress were
denied. Instead, Aguilar simply told Vargas that if he did not plead guilty, the 3-year
probation offer would be revoked, and Vargas would have to do 5-year probation (the
previous offer). I have also reviewed the motion for new trial and supporting exhibits.
If these allegations are true, this would constitute deficient performance by Mr.
Aguilar during the guilty-plea process. As the Supreme Court made clear in Padilla v.
Kenlllcky, 130 S.Ct. 1473 (2010), the ABA Standards guide what is professionally
reasonable in representing a defendant during the guilty-plea process. The ABA
Standards applicable here provide:
To aid the defendant in reaching a decision, defense counsel, after
appropriate investigation, should advise the de fondant of the alternatives
available and address considerations deemed important by defense
counsel or the defendant in reaching a decision. Defense counsel should
Amdnvit of Philip Wischlrncmpcr - Page 1
not recommend to a defendant acceptance of a plea unless appropriate
investigation and study of the case has been completed.
ABA Standard 14-3.2. Responsibilities of defense counsel - Guilty Pleas.
In my opinion, the following were important to Vargas in determining whether
to give up his right to trial: (1) the validity of the initial stop; (2) the validity of the
continued detention after the Trooper advised him he would receive a warning; (3) the
validity of Vargas's subsequent consent; (4) the potential success of a motion to
suppress; and (5) in the event the court denied the motion to suppress, whether those
issues could be raised at trial and at any subsequent appeal.
Additionally, the Texas State Bar's Performance Guidelines for Non-Capital
Indigent Defense, Guideline 4.1: Investigation, state:
Counsel has a duty to conduct, or secure the resources to conduct, an
independent case review and investigation as promptly as possible.
Counsel should, regardless of the client's wish to admit guilt, determine
whether the charges and disposition are factuallv and legallv correct
am/ i11for111 tlte clie11t ofpote11tial defe11ses to tile cltarges. Counsel
should explore all avenues leading to facts relevant both to the merits
and to the penalty in the event of conviction. (emphasis added).
There is no evidence that I have been made aware, either by documentation or
conversations with Mr. Sellers that indicate Mr. Aguilar perfonned any of the functions
of a proper and thorough investigation and evaluation of the case as required by the
ABA and Texas Guidelines. If that is indeed the case, then Aguilar's performance fell
below accepted professional norms.
In all fairness to Aguilar, he should be given the opportunity to respond to these
allegations. Sellers has also informed me that Aguilar has declined on multiple
occasions to speak about this case. In my opinion, the only way for him to be heard
would be for this Court to provide a live hearing.
If the allegations of the client and client's mother prove to be true, it is also my
opinion that Vargas was prejudiced by Aguilar's deficient performance. The law is clear
that Vargas only has to show that had he been advised of these things, he would have
exercised his constitutional right to a jury trial. It is important to note that this is not a
hopeless case. In fact, each of the issues above seem meritorious based on the trooper's
police report, which I reviewed in forming the opinions in this affidavit. Generally, law
enforcement is not allowed to detain an individual just to "check on" the vehicle's
occupants. The trooper then goes onto say that he asked for consent "after the stop was
completed." This, too, seems to run afoul of the Fourth Amendment and Article 38.23.
(See: VS v. Dortch, 199 F. 3d 193 - Court of Appeals, 5th Circuit 1999) As Vargas
stated in his affidavit, had he been advised about whether a motion to suppress might be
successful or whether raising factual issues before the jury at trial might have been
Affidavit of Philip Wischkucmper - Page 2
successful, he would have insisted on going to trial. Based on the facts of his case, this
would have been a perfectly reasonable decision in my opinion.
Sellers also asked me to give background about the appropriate number of cases
for court-appointed attorneys. It is well known that Aguilar is responsible for all
indigent defense in the 106th District, which covers four counties. In addition, he
maintains an active trial practice. For our Lubbock County court-appointed attorneys,
our questioning of active lawyers has indicated that the maximum number of clients one
attorney can effectively represent at any given time is 65. Each of those clients may
have multiple cases, therefore, the caseload may be and usually is higher than 65. In
our experience, however, the focus should be on the client, and not the number of cases
a single client has.
The nature of indigent defense is that many of our clients are incarcerated. Our
internal rule at the Lubbock Private Defender Office (Pursuant to the State Bar
Guidelines on Non-Capital Representation) is that each client must be contacted every
30 days to update them on their case. With as many as half and sometimes more of
their clients in jail at a given time, it is difficult for an attorney to fulfill his or her
obligations to more than the 65 client limit we impose. However, we still demand that
the attorney maintain regular contact and keep the client informed. From what I can tell
from the affidavits given and conferences with Mr. Sellers, Aguilar failed under State
Bar of Texas Guideline 1.3 B to "maintain regular contact with the client and keep the
client informed of the progress of the case.
Mr. Aguilar is the Contract Attorney for the 1061h Judicial District. He covers
the counties of Dawson, Gaines, Garza and Lynn pursuant to a contract with the 1061h
Judicial District. In a review by the Indigent Defense task Force of Gaines County's
Indigent Defense System released in June, 2013, the report reflected:
The monitor asked the contract attorney for the total number of
cases to which he had been appointed in FY2012. The contract attorney
reported that he had been appointed to 254 felony cases and two appeals
cases across the four counties involved in the contract. In the monitor's
visit with the contract attorney, the attorney noted that the contract
represents about 60% of his total work. Based on the recommended
caseload limitations set in the contract, if the contract attorney did no
extra work outside of the contract, the attorney would be limited to 150
felony appointments per year. The 254 felony appointments and two
appeals appointments are equivalent to 1. 77 attorneys working at the
maximum caseload recommendations. If the contract attorney's
assessment that the contract comprises about 60% of his annual
workload is accurate, 2.95 attorneys would be required to handle this
annual workload. This caseload exceeds the limit set by the contract.
It appears Mr. Aguilar is, as many public defenders are, overloaded. Because of
his excessive workload, he is unable to provide sufficient attention to each case
Affidavit of Philip Wischlmemper- Page 3
assigned to him. As a resul t, Mr. Vargas· case was compromised by not being fully
investigated factuall y nor analyzed suniciently for legu l issues. As a result, Mr.
Aguilar's conduct foll below professional norms and. as a result, Mr. Vargas was
pre_'udiced.
hilip Wi schbempcr
Subscribed and sworn to before me on September<;2.q . 20 14. by Philip Wischkaemper.
e LORETTA MARTINEZ
Nolllfy Put>lc, Slate of Tam
My eommmi Expires 04'25-2016
Affida vit of Philip Wischlwcmper - P age~
Exhibit I
Affidavit of Frank Sellers
AFFIDAVIT
THE STATE OF TEXAS §
§
COUNTY OF LUBBOCK §
Before me, the undersigned authority, personally appeared Frank Sellers, who upon his oath
deposed and stated the following:
1. My name is Frank Sellers. I am over 18 years of age, have personal knowledge of the
facts set forth below and am competent and authorized to make this affidavit. Following
his guilty plea where he was represented by Artie Aguilar, I agreed to take over Victor
Vargas's case as his pro bono counsel in an attempt to withdraw his guilty plea.
2. On July 23, 2014, I was in the 106th District Court in Dawson County appearing on
another matter. As I was gathering my belongings to leave, I observed Vargas enter his
guilty plea. Outside of the courthouse, I overheard Vargas telling his Mom "he had no
choice." I asked if they would agree to tell me what happened.
3. Vargas and his mother then recounted the facts contained in their affidavits. Even though
he had just entered his plea, Vargas told me it was not his intent to plead guilty but that
Aguilar would not show him the video, police report, or lab report; instead, Aguilar told
Vargas he could either plead guilty for a 3-year probation or a 5-year probation. Vargas
informed me that Aguilar made clear he had no legal defense whatsoever. Without any
personal review of the evidence or any advice on the law, Vargas thought he had to plead
guilty.
4. I agreed to represent Vargas pro bono with the hopes of withdrawing his plea. I contacted
Philip Wischkamper who agreed to provide an affidavit. Wischkaemper also told me I
should contact the Texas Indigent Defense Commission (TIDC) because they would be
familiar with what was acceptable with respect to the appropriate caseload for court-
appointed attorneys.
5. I emailed with Jim Bethke, Executive Director of TIDC, who put me in touch with his
staff. They sent me the report compiled on Gaines County from FY2012, as well as a
letter in response from Judge Schildknect. It was apparent that Aguilar was completely
overburdened with the contract he had signed with the I 06th District alone, yet he was
still accepting private cases on the side.
6. Vargas signed a release for Aguilar's file, which Aguilar provided me. After reviewing
the file, it was clear that very little work had been done, and that no notes about discovery
were in the file. Nor was there any transmittal letter that would customarily be sent to the
client with a copy of his discovery. One note, presumably by Aguilar's staff, in Aguilar's
Vargas file is particularly interesting: "2-13-14 Mom or daughter said it was ridiculous
the way you were handling this case."
7. In order to give Agui lar every opportunity to explai n what happened, I contacted
Aguilar's office by telephone in August of20 14. Aguilar conveyed to my legal assistant
that he "declined" to speak with me.
8. I tried to speak with Aguilar a second time in the Dawson County courtroom on
September 3, 2014. He told me be would not speak with me and that all I was trying to do
was "make things difficult," because that is "all [I] ever do."
9. I contacted Pam Huse, the Dawson County District Clerk, and requested the list of acti ve
cases Agui lar had in that County at the time. In Dawson County alone, Aguilar had 47
pending felony cases, 34 pending probation revocations, and I pending appeal . From
personal knowledge, the pending appeal is on a case that I tried. The tri al lasted two
weeks. Reading the record alone would take two full uninterrupted days, nevermind the
complex legal issues that must be written on. I then contacted Lubbock County to see
how many active cases Aguilar had in Lubbock (10 active, open criminal cases; and 10
active, open civil cases). Just in Lubbock and Dawson counties alone, Aguilar is
dangerously close to the maximum number of cases recommended by the ABA.
10. IL is my opinion that the indigent defense system in the l06th District suffers systemic
defects. Agui lar probably does the best he can given the confines of hi s budget and time
restraints. Unfortunately, that is not enough, and Vargas suffered prejudice from
Agui lar's deficient performance and lack of legal counsel.
Subscribed and sworn to before me on October ~ 2014, by Frank Sellers.
~ lf!fj;··. MARINA MEDRANO
;!b°.JJ{_i') MY COMMISSION EXPIRES
~ ·-.~~i';:••~f
J '' •1ou••'
February 14, 2017 1f\MlQJV:rrliJ~M)fl
Notary Public, State of Texas
Affid11vit of J~rnnl< Scllcrlj - Pu~c 2
Tab #4
Notice of Appeal
10/24/2014 16:19 8067638199 HURLEY & GUINN PAGE 02/03
FILED
IN COURT OF APPEALS
ELEVENTH DISTRICT
OCT 2 8 2(M
Cause No. 13-7245
State of Texas § In the 106th District Court
§
v. of
Victor Vargas § Dawson County, Texas
Notice of Appeal
To The Honorable Judge Of Said Court:
Comes Now the Defendant in the above-styled and numbered cause, through
his undersigned pro bono counsel, and files this notice of appeal. In support thereof
Defendant would show this Honorable Court as follows:
On July 23, 2014 judgment and imposition of sentence was entered against the
Defendant. Defendant timely filed a motion for new trial and requested a hearing. Despite
these requests supported by affidavit, the court overruled the motion by operation of law on
October 21, 2014. Therefore, this notice is timely filed.
Defendant hereby gives written notice of appeal to the Court of Appeals for the
Supreme Judicial District of Texas, at Eastland, Texas, from the trial court's (1) denial of a
hearing on his motion for new trial, and (2) the trial court's implicit legal ruling on his
motion for new trial.
Respectfully submitted,
Hurley, Guinn & Sell
Uj:
o