ACCEPTED
01-14-00804-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/16/2015 3:21:29 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00803-CR
NO. 01-14-00804-CR
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 4/16/2015 3:21:29 PM
CHRISTOPHER A. PRINE
Clerk
FOR THE STATE OF TEXAS
FOURTEENTH SUPREME JUDICIAL DISTRICT
___________________________________________________________
RICARDO JAVIER PENA
Defendant/ Appellant
V.
STATE OF TEXAS
Plaintiff/Appellee
___________________________________________________________
On Appeal in Cause Nos. 139,2873 and 139,2874
From the 178th Judicial District Court
of Harris County, Texas
Honorable David Mendoza, Presiding
___________________________________________________________
BRIEF FOR APPELLANT
__________________________________________________________
ORAL ARGUMENT NOT REQUESTED
Brief for Appellant Page
Ricardo Javier Pena 1
NAMES OF ALL PARTIES
1. Appellant: . . . . Ricardo Javier Pena
TDCJ # 01969337
A3-49
295 IH 45 North
Huntsville, Texas 77320
2. Attorney for the State: . . . Charles Brodsky
SBN 24057774
Asst. District Attorney
Harris Co. D.A.’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
3. Defense Counsel at Trial: . . Michael E. Trent
SBN 00791814
11621 Spring Cypress Road
Suite C
Tomball, Texas 77377
4. Trial Judge: . . . . Hon. David L. Mendoza
Presiding Judge
178th District Court
Houston, Texas 77002
5. Counsel for Appellant: . . Mark A. Rubal
SBN 17360325
15150 Middlebrook Dr.
Houston, Texas 77058
Brief for Appellant Page
Ricardo Javier Pena 2
TABLE OF CONTENTS
NAMES OF ALL PARTIES................................................................ 2
TABLE OF CONTENTS..................................................................... 3
INDEX OF AUTHORITIES................................................................ 4
STATEMENT REGARDING ORAL ARGUMENT.......................... 5
PRELIMINARY STATEMENT.......................................................... 5
STATEMENT OF FACTS.................................................................. 7
POINT OF ERRORS........................................................................... 9
POINT OF ERROR ONE:
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL IN THE ENTRY OF HIS PLEAS OF
GUILTY BECAUSE OF THE IMPROPER ASSURANCES
AND/OR MISREPRESENTATIONS OF HIS TRIAL
COUNSEL.............................................................................. 9
ARGUMENT AND AUTHORITIES................................................. 9
PRAYER FOR RELIEF....................................................................... 14
CERTIFICATE OF SERVICE............................................................. 16
Brief for Appellant Page
Ricardo Javier Pena 3
INDEX OF AUTHORITIES
CASES
Cooper v. State, 769 S.W.2d 301 (Tex. App.-Houston
[1st Dist.] 1989, pet. ref’d) ........................................................ 10
Fimberg v. State, 922 S.W.2d 205 (Tex.App.-Houston
[1st Dist.] 1996, pet ref’d) ........................................................ 12
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.1986)............... 11
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)................ 12
McGuire v. State, 617 S.W.2d 259 (Tex. Crim. App. 1981).............. 12
Mercado v. State, 615 S.W.2d 225 (Tex. Crim. App. 1981).............. 11,12
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
806 L. Ed. 674 (1984)............................................................... 10,11,
12
CONSTITUTIONS, STATUTES, AND OTHER AUTHORITIES
Tex. Const. Art. I, Sec. 10 ................................................................... 11
Tex. R. App. P. 39 ............................................................................... 5
U.S. Const. Amend. VI ........................................................................ 10,11
Brief for Appellant Page
Ricardo Javier Pena 4
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 39 Appellant waives oral argument unless the
Court believes the decisional process would be significantly aided by any
argument.
PRELIMINARY STATEMENT
On June 27, 2013, Appellant Ricardo Javier Pena (“Pena”) was charged
with two cases of Aggravated Sexual Assault of a Child, under cause numbers
139,2873 and 139,2874. (CR, 139,2873, Vol. 1; p. 6) and (CR, 139,2874, Vol.
1; p. 6). Pena was indicted for both cases on September 18, 2013, without any
enhancement paragraph(s). (CR, 139,2873, Vol. 1; p. 12) and (CR, 139,2874,
Vol. 1; p. 6).
On March 24, 2014, Pena pled guilty to the charges without an agreed
recommendation. (CR, 139,2873, Vol. 1; pp. 26-38) and (CR, 139,2874, Vol.
1; p. 27).1 The cases were reset for a pre-sentence investigation hearing on
1
The Clerk’s record for cause number 139,2874 contains only the Motion for
Community Supervision and no copies of the plea papers. However, the Pre-Sentence
Report indicates Pena pled guilty to both cases (RR, Vol. 5, p. 4), each Clerk Record
contains a reset for a Pre-Sentence Investigation Hearing on both the cases (CR,
139,2873, Vol. 1; p. 25) and (CR, 139,2874, Vol. 1; p. 25), the Judge recites that
Brief for Appellant Page
Ricardo Javier Pena 5
August 8, 2014. (CR, 139,2873, Vol. 1; p. 25) and (CR, 139,2874, Vol. 1; p.
25). At the pre-sentence investigation hearing, the Court heard testimony and
after considering the evidence, the Judge found Pena guilty and reset the cases
for sentencing in thirty (30) days. (RR, Vol. 2; pp. 46-50).
On September 22, 2014, the Judge sentenced Pena to twenty (20) years
confinement in the institution division of the Texas Department of Criminal
Justice, to run concurrently. (RR, Vol. 3; pp. 4-5) and (CR, 139,2873, Vol. 1;
pp. 45-46) and (CR, 139,2874, Vol. 1; pp. 34-35). Pena filed his Notice of
Appeal on September 22, 2014, (CR, 139,2873, Vol. 1; pp. 49-50) and (CR,
139,2874, Vol. 1; pp. 38-39). The undersigned attorney was appointed and
assigned to represent Pena for his appeal on September 24, 2014. (CR,
139,2873, Vol. 1; p. 51) and (CR, 139,2874, Vol. 1; p. 40).
On October 21, 2014, Pena filed a Motion for New Trial alleging
ineffective assistance of counsel. (CR, 139,2873, Vol. 1; pp. 54-57) and (CR,
139,2874, Vol. 1; pp. 43-46). The Motion for New Trial was denied on
December 5, 2014, after a hearing and testimony from trial counsel for Pena
responding to the allegations of ineffective assistance raised by Pena in the
Pena pled guilty on both cases at the Pre-Sentence Investigation Hearing (RR, Vol. 2;
pp. 5-7), and each Clerk record contains a Judgment and Sentence for both cases (CR,
139,2873, Vol. 1; pp. 45-46) and (CR, 139,2874, Vol. 1; pp. 34-35).
Brief for Appellant Page
Ricardo Javier Pena 6
Motion. (CR, 139,2873, Vol. 1; p. 58), (CR, 139,2874, Vol. 1; p. 47) and (RR,
Vol. 4; pp. 4-38).
The appellate record consists of one (1) volume of the Clerk’s Record
for each cause (CR, 139,2873, Vol. 1; p. ___), (CR, 139,2874, Vol. 1; p. ___)
and four (4) volumes of the Reporter’s Record (RR, Vol. ___; p.___).
STATEMENT OF FACTS
According to the record, Pena was accused of sexually assaulting two of
his granddaughters. One of the girls is named as the complainant in cause
number 139,2873 (identified as VC) and the other is named as the complainant
in cause number 139,2874 (identified as EM). The abuse purportedly occurred
over approximately a two year period (from the time the girls were in first
grade until they were in third grade). The girls reported that the abuse
happened on multiple occasions when they visited Pena and/or stayed over at
his house.
On June 18, 2013, the initial report of abuse was made to the Houston
Police Department after VC told her mom about the abuse. VC’s mother is
Pena’s step daughter-in-law. VC also told the police that EM was being
abused by Pena as well. The Juvenile Division Sexual Abuse Unit investigated
Brief for Appellant Page
Ricardo Javier Pena 7
the allegations.
Both complainants were subsequently interviewed at the Children’s
Assessment Center and both corroborated the allegations of abuse by Pena.
The mother of EM is Pena’s daughter. When she was interviewed, she related
an incident when EM was in first grade and got into trouble at school because
she was talking about sex with another child. When EM was confronted about
the subject, she said her grandfather (Pena) had told her about sex. Pena was
told about the statements made by EM and Pena said EM was lying. EM got
into trouble for lying and unbeknownst to anyone, at the time, Pena
purportedly continued to abuse EM.
When Pena was initially questioned about the allegations, he stated the
accusations were not true. Charges were filed against Pena on June 27, 2013.
(CR, 139,2873, Vol. 1; pp. 6-7) and (CR, 139,2874, Vol. 1; pp. 6-7).
After Pena was arrested, trial counsel was appointed to represent him on
July 1, 2013. (CR, 139,2873, Vol. 1; p. 9) and (CR, 139,2874, Vol. 1; p. 9).
Pena subsequently made bond and his case(s) were reset approximately seven
(7) times before he entered a plea of guilty to the charges on March 24, 2014.
Before entering his plea(s), Pena asked his trial attorney what he would
do if he were in his place. His trial attorney said he would plead guilty and
Brief for Appellant Page
Ricardo Javier Pena 8
throw himself on the mercy of the Court. Pena’s trial attorney also said he
thought Pena would get deferred probation because he [Pena] had never been
in trouble before, had been an asset to the community for thirty-three (33) years
as a pastor, and had done volunteer work. The attorney also told Pena that if
he did not get deferred probation then he [Pena] should get no more than five
(5) years in prison. As a result, Pena decided to enter a plea of guilty to both
the charges. See Affidavit of Ricardo Pena (CR, 139,2873, Vol. 1; pp. 56-57)
and (CR, 139,2874, Vol. 1; pp. 45-46).
As stated, Pena got sentenced to twenty (20) years in prison by the
Judge.
POINT(S) OF ERROR:
POINT OF ERROR ONE:
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN THE ENTRY OF HIS PLEAS OF GUILTY BECAUSE OF
THE IMPROPER ASSURANCES AND/OR MISREPRESENTATIONS OF
HIS TRIAL COUNSEL.
ARGUMENT AND AUTHORITIES
The test for determining whether a defendant was denied the effective
assistance of counsel was established by the Supreme Court of the United
Brief for Appellant Page
Ricardo Javier Pena 9
States in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 806 L. Ed.
674 (1984). The Court held that ineffective assistance of counsel is shown
only where the attorney’s errors are so serious that the attorney was not
functioning as counsel guaranteed by the Sixth Amendment and, in addition,
the defendant was deprived of a fair trial because of the error. U.S. Const.
Amend. VI.
For an error to reach that magnitude, there must be a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. The Court defined a reasonable
probability as a probability sufficient to undermine confidence in the outcome.
Strickland, supra; See also Cooper v. State, 769 S.W.2d 301, 304 (Tex. App.-
Houston [1st Dist.] 1989, pet. ref’d). However, the Supreme Court in
Strickland also held:
On the other hand, we believe that a defendant need not show that
counsel’s deficient conduct more likely than not altered the outcome of
the case . . . [t]he result of a proceeding can be rendered unreliable, and
hence, the proceeding itself unfair, even if the error of counsel cannot
be shown by a preponderance of the evidence to have undermined that
outcome. Strickland, 466 U.S. at 694; 104 S. CT. 2068.
Brief for Appellant Page
Ricardo Javier Pena 10
The Court emphasized that the test is not rigid in its application, but
requires flexibility:
A court should keep in mind that the principles we have stated do not
establish mechanical rules . . . [t]he ultimate inquiry should be on the
fundamental fairness of the proceeding . . . [i]n every case the Court
should be concerned whether . . . the result of the particular proceeding
is unreliable because of a breakdown in the adversarial process that our
system counts on to produce just results. Strickland, 466 U.S. at 696,
104 S. Ct. 2069.
The standard on the right to counsel is the same under the United States
and Texas Constitutions. U.S. Const. Amend VI; Tex. Const. Art. I, Sec. 10;
Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986). An
attorney’s performance must be gauged by the totality of the representation.
Strickland, supra; see also Mercado v. State, 615 S.W.2d 225, 227-228 (Tex.
Crim. App. 1981). However, a defendant is not entitled to errorless counsel.
Hernandez, supra. A fair assessment of counsel’s performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances, and to evaluate counsel’s conduct from his
perspective at the time. A defendant must overcome the presumption that the
Brief for Appellant Page
Ricardo Javier Pena 11
challenged action might be considered sound trial strategy. Strickland, 466
U.S. at 689, 104 S. Ct. at 2065.
Thus, Texas case law requires a two fold showing to establish ineffective
assistance:
(1) an act that constitutes ineffective assistance of counsel; and
(2) that the defendant suffered harm because of this ineffective
assistance.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Mercado, 615 S.W.2d at 228.
A plea of guilty based on erroneous information is involuntary.
McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981). However, a
defendant’s claim that he was misinformed by counsel, standing alone, is not
enough for a reviewing court to hold the plea was involuntary. Fimberg v.
State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet ref’d). The
claim for ineffective assistance of counsel must be affirmatively supported by
the record. Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998).
Pena states in his affidavit that he would not have pled guilty to the
charges offenses, but for the assurances of his trial counsel that he [Pena]
would get either deferred probation or at worst five (5) years. See Affidavit of
Ricardo Pena (CR, 139,2873, Vol. 1; pp. 56-57) and (CR, 139,2874, Vol. 1;
Brief for Appellant Page
Ricardo Javier Pena 12
pp. 45-46).
His trial counsel testified at the motion for new trial. Trial counsel
stated that at first Pena said he was not guilty. However, after trial counsel had
the opportunity to review the forensic interviews of the complainants and fully
understand the evidence against Pena they began to have earnest discussions
about Pena pleading guilty. (RR, Vol. 4, pp. 8-9). During the discussions and
the course of representations, trial counsel said he told Pena he had extensive
experience in child abuse cases. He informed Pena that he had practiced
criminal law for almost 20 years (14 years as prosecutor and 6 years as a
defense attorney), he had extensive experience in child abuse cases and he had
co-authored a book by the Texas District & County Attorneys Association
(TDCAA) relating to the investigation and prosecution of child abuse cases.
(RR, Vol. 4; p. 10).
Trial counsel further said he told Pena that he thought he [Pena] had a
better than normal chance of getting deferred probation by pleading guilty to
the Judge based on his background, his record of service to the community, his
work as a minister, and the good he had done in his life. (RR. Vol. 4; p. 12).
Trial counsel also testified that he told Pena that if he [Pena] did not get
deferred then he expected he would get not more than five (5) years in prison.
Brief for Appellant Page
Ricardo Javier Pena 13
(RR, Vol. 4; p13). Trial counsel agreed that Pena relied on his advice when he
[Pena] pled guilty to the charged offenses. (RR, Vol. 4; p. 15).
Based upon the record, it is reasonable to conclude that but for the
assurances of trial counsel Pena would not have pled guilty to the charged
offenses. Pena states that his pleas of guilty were in reliance on the
punishment advice of his trial counsel and his trial counsel affirms his reliance.
The punishment assurances made by trial counsel, boot strapped with the
qualifications and experience he communicated to Pena, manifests a
fundamental unfairness in the proceeding. The assurances and/or
representations were not guarantees, but it is clear that Pena trusted the advice
of his trial counsel when he decided to plead guilty to the charges. The record
shows that trial counsel knew Pena was relying on his advice and Pena clearly
suffered harm because the assurances and/or representations turned out to be
false. As a result, the pleas of guilty by Pena were involuntary and his
conviction(s) should be reversed.
PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDERED, Appellant respectfully
prays that this Court reverse his conviction and remand the case back to the
Brief for Appellant Page
Ricardo Javier Pena 14
trial court for a new trial and/or enter an order of acquittal, as appropriate and
for any and all such other relief for which he may be legally and justly entitled.
Respectfully Submitted,
/s/ Mark A. Rubal
By: Mark A. Rubal
SBN 17360325
15150 Middlebrook Dr.
Houston, Texas 77058
(281) 286-2222 Telephone
(281) 488-4597 Telefax
Attorney for Appellant
Brief for Appellant Page
Ricardo Javier Pena 15
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument
was served upon the District Attorney of Harris County, Texas, on this the 16th
day of April, 2015, by delivering a copy of the Brief to the Harris County
District Attorney’s Office, Appellate Division, 1201 Franklin Street, Suite 600,
Houston, Texas 77002 by CMRRR No. 7013 1710 0001 3124 4298.
I further certify that, on the same day, a true and correct copy of the brief
was mailed to Appellant, Ricardo Javier Pena, TDCJ # 01969337, A3-49, 295
IH 45 North, Huntsville, Texas 77320 by CMRRR No. 7013 1710 0001 3123
9577.
/s/ Mark A. Rubal
Mark A. Rubal
Brief for Appellant Page
Ricardo Javier Pena 16