ACCEPTED
03-15-00290-CR
8226000
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/14/2015 2:55:30 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00290-CR
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS
12/14/2015 2:55:30 PM
FOR THE
JEFFREY D. KYLE
THIRD SUPREME JUDICIAL DISTRICT Clerk
AT AUSTIN, TEXAS
RAFEAL HERNANDEZ-PRADO,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
Appeal from the 33rd Judicial District Court
Cause No. 9767A
Burnet County, Texas
The Honorable J. Allan Garrett, Judge Presiding
APPELLANT'S BRIEF
Gary E. Prust
State Bar No. 24056166
1607 Nueces Street
Austin, Texas 78701
(512) 469-0092
Fax: (512) 469-9102
gary@prustlaw.com
ATTORNEY FOR APPELLANT
1
IDENTITY OF THE PARTIES
APPELLANT:
Rafeal Hernandez-Prado, TDCJ #04826030
Lychner Unit
2350 Atascocita Rd.
Humble, TX 77396
TRIAL COUNSEL FOR APPELLANT ON ORIGINAL PLEA:
Eduardo Arredondo
SBN 00790241
220 S. Pierce St.
Burnet, TX 78611
TRIAL COUNSEL FOR APPELLANT ON 11.072 WRIT AND MOTION TO
ADJUDICATE:
Eddie Shell
SBN 18191650
Austin Shell
SBN 24079316
6000 North Hwy 281
Marble Falls, TX 78654
APPELLATE COUNSEL FOR APPELLANT:
Gary E. Prust
Law Office of Gary E. Prust
1607 Nueces St.
Austin, TX 78701
TRIAL COUNSEL FOR APPELLEE:
Cheryl Nelson (on original plea)
SBN 06839380
Richard Crowther (on 11.072 Writ and Motion to Adjudicate)
SBN 05174200
33rd and 424th District Attorney’s Office
PO Box 725
Llano, TX 78643
2
APPELLATE COUNSEL FOR APPELLEE:
Gary Bunyard
SBN 03353500
33rd and 424th District Attorney’s Office
PO Box 725
Llano, TX 78643
3
TABLE OF CONTENTS
Identity of the Parties ................................................................................................ ii
Table of Contents..................................................................................................... iv
Table of Authorities .................................................................................................. v
Statement of the Case ............................................................................................... 1
Statement Regarding Oral Argument ....................................................................... 1
Issues Presented ........................................................................................................ 2
Whether Appellant’s plea was rendered involuntary because he was
not informed of his right to an interpreter and, therefore, could not
knowingly waive that right.
Whether Appellant’s plea is involuntary because he was not informed
of the terms and conditions of community supervision before he was
placed on community supervision nor could he lodge an objection to
any terms.
Statement of the Facts............................................................................................... 3
Summary of the Argument ....................................................................................... 6
Argument .................................................................................................................. 7
Standard of Review ........................................................................................ 7
Law Applicable .............................................................................................. 8
Application of the Law to Issue One .............................................................. 8
Application of the Law to Issue Two ........................................................... 11
Prayer ...................................................................................................................... 14
Certificate of Service .............................................................................................. 15
Certificate of Compliance ....................................................................................... 15
4
TABLE OF AUTHORITIES
Cases
Carnley v. Cochran, 508 U.S. 506, 82 S.Ct. 884 (1962) .................................................................................................................... 8
Ex Parte Mello, 355 S.W.3d 827, 832 (Tex.App. – Fort Worth 2011, pet. ref’d) ..................................................................... 7
Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App. 2004) ....................................................................................................... 8
Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App. 2014) (reh’g denied) ................................................................... 8, 10
Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014) ............................................................................... 12
Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993) ......................................................................................................... 8
State v, Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) .................................................................................................. 7
Statutes
TEX. CODE CRIM. PROC. art 41.12 § 9(a) (West 2003) 11
TEX. CODE CRIM. PROC. art 42.12 § 9A (West 2003) 11
TEX. CODE CRIM. PROC. art. § 9(g) (West 2003) 11
TEX. CODE CRIM. PROC. art. 11.072 § 5(d) (West 2015) 7
TEX. CODE CRIM. PROC. art. 11.072 § 7 7
TEX. CODE CRIM. PROC. art. 11.072 § 8 7
Rules
TEX. R. APP. P. 33.1(a)(1)(A) .................................................................................................................................................................... 16
TEX. R. APP. P. 33.1(a)(2)(A) .................................................................................................................................................................... 16
TEX. R. APP. P. 33.1(a)(2)(B). ................................................................................................................................................................... 16
STATEMENT OF THE CASE
Nature of the case: This is an appeal from an order denying an application
for writ of habeas corpus in a community supervision case.
Course of the proceedings: Appellant was indicted on June 3, 2003 for
burglary of a habitation with intent to commit sexual assault. CR 5. Appellant
pleaded guilty with his attorney acting as an interpreter and was placed on 10 years
of deferred adjudication community supervision. CR 32; 44-45; see II RR, 1, et
seq. The state requested adjudication October 1, 2013; CR 54-57; a capias issued
the following day; see CR 58-59; and Appellant was arrested approximately one
year later. Id. Appellant filed his application for writ of habeas corpus January 7,
2015. CR 81-85. A combined writ and adjudication hearing was held in February
5
2015; III RR; and March 25, 2015. IV RR. The writ was denied in an order dated
March 25, 2015 and filed April 30, 2015. CR 86. This appeal follows.
Trial court’s disposition: The trial court denied Appellant’s application for a
writ of habeas corpus.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument. Submission by brief will be
enough aid to the Court. If the court determines oral argument is needed, Appellant
will participate.
6
ISSUES PRESENTED
Whether Appellant’s plea was rendered involuntary because he was not
informed of his right to an interpreter and, therefore, could not knowingly
waive that right.
Whether Appellant’s plea is involuntary because he was not informed of the
terms and conditions of community supervision before he was placed on
community supervision nor could he lodge an objection to any terms.
7
STATEMENT OF FACTS
Appellant, Rafeal Hernandez-Prado, was indicted in the 33rd Judicial
District Court of Burnet County, Texas on June 3, 2003 with burglary of a
habitation with intent to commit sexual assault. CR 5-6. The case proceeded to a
plea of guilty October 10, 2003. II RR 1. Mr. Arredondo, Appellant’s trial counsel,
acted as the interpreter for the plea. II RR 5. At no point was Mr. Hernandez-Prado
advised of his right to a court interpreter or whether he wished to waive the right.
Id. Rather, the trial court asked Appellant whether he wished for his attorney to
interpret for him. Id. All communication with the court was completed through
Appellant’s attorney acting as interpreter.
The trial court went over the written waivers, plea of guilty, admonitions,
application for deferred adjudication, and admonitions for the sex offender
registration requirements with Appellant. II RR 5-6. Appellant, through his
attorney, indicated he understood the documents and that his counsel answered his
questions to his satisfaction. II RR 6. Appellant also indicated he understood he
was waiving various constitutional rights and the offense indicted and the range of
punishment. II RR 7.
However, the trial court admonished Appellant about the deportation
consequences in uncertain terms. Namely, the trial court stated the plea “can result
in your being deported, in being denied admission to the country later, and can also
8
result in your denial of an application of citizenship if you should ever make one.”
II RR 8. The record only reflects Appellant is not a citizen but does not indicate
whether he had any legal status in the United States. II RR 8.
After being so warned, Appellant pleaded guilty, and the trial court found
the plea free and voluntary. II RR 8-9. Additionally, the court specifically stated to
Appellant that is he were to ever reenter the United States without reporting to
probation, he will be in violation of his terms of probation. II RR 10. This
requirement was ordered in addition to “the usual terms of probation.” II RR 9.
Sometime thereafter, Appellant met with the court probation officer, Ms.
Jeanette Murray, to go over the terms and conditions of probation. IV RR 21; IV
RR 25-26. She stated she met with Appellant and his attorney who provided
interpretation services. IV RR 23. She would read a term, the attorney would
interpret it, and Appellant would respond “yes” or “no”. Id.
Ms. Murray also testified there was an immigration hold on Appellant at the
time of the plea. IV RR 24. He was not released on community supervision and
was instead taken into custody for other proceedings. Id. As far as she knew, in
2003, Appellant was likely going to be deported. IV RR 28.
At a hearing on February 13, 2015, before the full hearing on the state’s
motion to adjudicate, Trooper Frank Randolph testified on December 18, 2007, he
stopped a “Mr. Hernandez and issued him a ticket for no safety belt” in Burnet
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County, Texas. III RR 6-7. He then testified he looked at book-in photographs
from the jail an testified it was the same person to whom he wrote a ticket in
December 2007. Id. at 7.
Mr. Thomas Leon, a certified interpreter for language translation from
English to Spanish and Spanish to English, testified incorrectly translated
documents can have drastic consequences. IV RR 41-42. He also testified that it is
“a fallacy that somebody that [sic] speaks both languages can actually accomplish
a [sic] interpretation of a document or interpreting a court procedure because
speaking the two languages allows them to communicate, but does not allow them
to convey with exact precision something that requires exact precision, such as a
court document.” IV RR 44. He further testified exact precision is required for
interpretation because of the understanding needed by the person for whom the
translation is being done. Id. It will affect what that person will do, how they will
perform, and act in the future. Id.
After taking it under advisement, the trial court proceeded to find Appellant
violated conditions 5, 11, and 13 of the terms of probation in addition to sex
offender supplement terms 1, 2, 8, and 9. V RR 5. The trial court them sentenced
Appellant to 15 years in the Texas Department of Criminal Justice. Id. The trial
court also imposed court costs of $50 and court-appointed attorney’s fees. Id.
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SUMMARY OF THE ARGUMENT
In his application for a writ of habeas corpus following placement on
community supervision, Appellant primarily argues his plea of guilty is rendered
involuntary because the terms and conditions of the plea agreement, of community
supervision, and the consequences of violating those conditions were not explained
to him in a language and manner he could understand. More specifically, because
he was unable to understand the terms and conditions community supervision, and
because the terms and conditions were not explained to him until after he entered
his plea, and he was provided no opportunity to object to the terms and conditions
of community supervision, his plea is rendered involuntary. On top of this,
Appellant complains in his habeas application he did not understand the terms and
conditions of his plea agreement upon entering his plea. At no point does the
record show where Appellant was apprised of his right to a court appointed
interpreter, and nowhere in the record to does it indicate he waived this right.
Accordingly, the plea should be rendered involuntary and remanded to trial court
for further proceedings.
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ARGUMENT
Standard of Review
In an Article 11.07 habeas proceeding, the trial judge is the sole finder of
fact. State v, Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013); TEX. CODE
CRIM. PROC. art. 11.072 §§ 7, 8 (West. 2015). A highly deferential standard of
review applies in such cases, and the appellate court will afford almost total
deference to the trial court’s findings of fact if supported by the record. State v.
Guerrero, 400 S.W.3d at 583. Absent an abuse of discretion, the reviewing court
must affirm the habeas court’s decision whether to grant relief. Ex Parte Mello,
355 S.W.3d 827, 832 (Tex.App. – Fort Worth 2011, pet. ref’d).
Live, sworn testimony is a sufficient basis for upholding a decision to grant
relief in an Article 11.072 proceeding. State v. Guerrero, 400 S.W.3d at 583.
Sworn pleadings are an inadequate basis on which to grant relief and matters
alleged in the application not admitted by the State are considered denied. Id.; TEX.
CODE CRIM. PROC. art. 11.072 § 5(d) (West 2015). However, when the resolution
of the ultimate question relies on the application of legal standards, reviewing
courts review such determinations de novo. Ex Parte Mello, 355 S.W.3d at 832..
Law Applicable
Our system contains three categories of rules: (1) absolute requirements and
prohibitions, (2) rights which must be implemented unless expressly waived, and
12
(3) rights to are implemented upon request. Marin v. State, 851 S.W.2d 275, 280
(Tex. Crim. App. 1993). The right to an interpreter in court proceedings is a
category-two Marin right. Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App.
2004). As such, an accused is free to waive the right to an interpreter but such
waiver must be made “plainly, freely, intelligently, sometimes in writing, and
always on the record.” Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App.
2014) (reh’g denied) (quoting Marin, supra.).
Waiver may not be presumed from a silent record, and it must show there is
an allegation of or evidence of an offer of counsel and an intelligent rejection of
the offer, in the context of the waiver of the right to counsel. Carnley v. Cochran,
508 U.S. 506, 82 S.Ct. 884 (1962). When the trial court knows the defendant
cannot understand the English language, an interpreter must be appointed for the
defendant unless the defendant waives the appointment. Garcia v. State, 429
S.W.3d at 607. There may be a valid waiver of the right to an interpreter if there is
not a specific waiver colloquy but the record contains some other evidence a valid
waiver occurred. Id. at 608.
Application of the Law
Issue One.
Appellant’s plea was rendered involuntary because he was not informed
of his right to an interpreter and could not knowingly waive that right.
13
The record of the proceedings contains no indication Appellant was made
aware he had the right to a court appointed interpreter. If unaware of the right,
Appellant could not have knowingly waived such right. At best, the reporter’s
record contains the following exchange:
“By the Court:
Q: Mr. Prado, your attorney tells me that you don’t speak good English and
that you do not read or writ English. Is that correct?
(At which time [Appellant’s counsel] begins to act as interpreter for the
defendant in this hearing..)
A: Yes.
Q: And you wish for Mr. Arredondo to interpret for you?
A:Yes.
Q: And you have talked to Mr. Arredondo quite a bit, haven’t you?
A: Yes.
Q: And his interpretation is accurate for you?
A: Yes.”
II RR 5. Nowhere in this exchange is Appellant informed he has the right to an
interpreter. Further, merely asking Appellant if he wishes for his attorney to
interpret cannot be found a valid waiver. The alternative from Appellant’s
perspective may well have been understood to be no interpretation at all. This
14
question does not inform Appellant of his right to a court-appointed interpreter.
Moreover, the court asks Appellant if the interpretation is accurate. Appellant, not
being able to speak English, would not be able to make the determination whether
the interpretation is accurate.
Recently, the Texas Court of Criminal Appeals issued an opinion in Garcia
v. State, where it discussed what constitutes a waiver of the right to an interpreter.
429 S.W.3d 604 (Tex. Crim. App. 2014, reh’g denied). The record in that case
contained evidence Garcia’s trial counsel informed him of the right to an
interpreter, that Garcia acquiesced in the decision not to request an interpreter, and
that the request not to have an interpreter was communicated to the trial judge. Id.
at 609.
This is in sharp contrast to the instant case. Here, the record contains no
indication Appellant was informed of the right to an interpreter, much less an
indication he wished to waive the right. Finally, nothing in the record shows the
trial court was aware of Appellant’s waiver of this right. Indeed, the trial court was
made aware Appellant did not speak English well.
Because Appellant was not informed of the category-two Marin right, he
could not waive it. Nothing in the record indicates Appellant was informed of or
waived the right. Accordingly, the plea should be rendered involuntary and the
case remanded for further proceedings.
15
Inasmuch as the trial court’s conclusions of law state a defendant must
request the interpreter before he might complain on appeal, Appellant respectfully
submits that the trial court erred in its application of the law. Appellant requests
this legal issue be reviewed by this Honorable Court de novo. In so doing, because
Appellant did not waive his right to an interpreter, nor was he apprised of that
right, the plea should be rendered involuntary and remanded to the trial court.
Issue Two.
Appellant was not afforded an opportunity to be informed of the terms and
conditions of community supervision nor lodge an objection to any terms.
The Texas Code of Criminal Procedure generally requires the trial court
direct the community supervision department to do a presentence investigation,
with very limited exceptions in felony cases. TEX. CODE CRIM. PROC. art 41.12 §
9(a) and (g) (West 2003). The same is generally required for individuals accused of
offense requiring registration as a sex offender. TEX. CODE CRIM. PROC. art 42.12 §
9A (West 2003). However, in order to preserve this error for appellate review, a
timely complaint must be made to the trial court apprising the court of the grounds
for the complaint unless the specific grounds were apparent from the context. TEX.
R. APP. P. 33.1(a)(1)(A). The record must also show the court ruled on the request
or refused to rule and the objection party objected to the refusal to rule. TEX. R.
APP. P. 33.1(a)(2)(A) and (B).
However, when probation is granted in a case, the trial court extends,
16
clemency to a defendant and creates a quasi-contractual relationship. Gutierrez-
Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014). Unobjected to
terms and conditions of probation are accepted as terms of the contract, unless the
condition is on our criminal justice system finds intolerable. Id. The requirement to
object “assumes the probationer knew what the conditions were in time to object at
trial.” Speth v. State, 6 S.W.3d 530, 535 n.9 (Tex. Crim. App. 1999).
As previously noted, Appellant did not know the terms of his probation,
including the sex offender conditions, until after he pleaded and was ordered
placed on community supervision. Due to the fact Appellant was unable to lodge
an objection to the terms of supervision, it is questionable whether he understood
them before entering into the “quasi-contractual relationship”. Appellant may have
objected to various terms and conditions, had be been afforded the opportunity.
Such denial of understanding the full expectations of community supervision
must render such “quasi-contractual relationship” invalid. If there was never an
understanding of the expectations or chance to object to any such expectations, the
underlying plea of guilty should be rendered involuntary or unknowingly made.
Accordingly, Appellant respectfully prays this Honorable Court find
Appellant was not informed of the conditions of community supervision before
entering his plea and was not afforded an opportunity to object to the terms of
probation before they were imposed. As such, the plea should be rendered
17
involuntary and unknowingly entered and the case remanded for further
proceedings.
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PRAYER
Appellant respectfully prays that this Honorable Court grant the relief
requested in his Application for Writ of Habeas Corpus, find the plea was
unknowingly and involuntarily made and remand this cause for further
proceedings. Appellant prays for any other relief to which he may be entitled in
equity or at law.
Respectfully submitted,
Gary E. Prust
State Bar No. 24056166
1607 Nueces St.
Austin, Texas 78701
(512)469-0092
Fax (512)469-9102
gary@prustlaw.com
Attorney for Rafeal Hernandez-Prado
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CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Brief was served upon Mr. Gary Bunyard of the 33rd and 424th District Attorney’s
office via electronic transmission through efiletexas.gov on this 14th day of
December, 2015.
Gary E. Prust
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I hereby certify this brief contains
2,295 words. This is a computer-generated document created in Microsoft word,
using 14-point typeface. In making this this certificate, I rely on the word count
provided by the software use to prepare the document.
Gary E. Prust
20