PD-0877-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/20/2015 10:37:36 AM
Accepted 8/20/2015 2:24:53 PM
No. PD-0877-15 ABEL ACOSTA
CLERK
In the
Court of Criminal Appeals
of Texas
Jose Ricky Espinoza )( Petition for Discretionary
V. )( Review from the Court of
The State of Texas )( Appeals, Second District of
)( Texas, No. 02-15-00074-CR
August 20, 2015
TODD Greenwood
SBN 24048111
Attorney for Appellant
900 Eighth Street
Suite 716
Wichita Falls, TX 76301
toddgreenwood@lawver.coni
Identity of Parties and Counsel
Parties
Jose Ricky Espinoza - Appellant
The State of Texas
Counsel for Appellee
Matt Hall
Trial Counsel
Parker County Assistant County Attorney
118 West Columbia Street
Weatherford, TX
Natalie Bamett
Appellate counsel
Parker County Assistant County Attorney
118 W. Columbia St.
Weatherford, TX 76086
Counsel for Appellant
Jose Ricky Espinoza
Pro se at Trial
Todd Greenwood
Counsel on Appeal and for Discretionary Review
900 Eighth Street
Suite 716
Wichita Falls, Texas, 76301
11
Table of Contents
Identity of Parties and Counsel i
Table of Contents ii
Index of Authorities iv
Statement of the Case 1
Statement of the Procedural History 1
Statement of the Case 2
Ground for Review 3
WHETHER PAD/LLA IS RENDERED MEANINGLESS BY 7.5-
POINT FONT WAIVER OF COUNSEL BOILERPLATE BURIED
WITHIN MULTIPLE FORMS WHICH STATES A PLEA MAY
RESULT IN "DEPORTATION, EXCLUSION FROM ADMISSION
INTO THE U.S. OR DENIAL OF NATURALIZATION."
Argument > 3
Conclusion and Prayer for Relief 12
Certificate of Compliance 12
Certificate of Mailing and Service 13
Appendices 14
111
Index of AuxHORixms
Cases:
Padilla v. Kentucky, 559 U.S. 356, 373 (2010) 3, 4, 5
Exparte Garcia, 353 SW 3d 785, 789 (Tex. Crim. App. 2011) 8, 9
State V. Guerrero, 400 S.W.3d 576, 588-89 (Tex. Crim. App. 2013) 8, 9
IV
STATEMENT OF THE CASE
Appellant, then a 19-years old and neither a permanent resident nor citizen
(hereinafter "undocumented") was arrested for possession of K-2.' He was taken
before Parker County Court at Law No. 1 for open docket call. He was presented
with a stack of forms buried within which was a warning of potential immigration
and naturalization consequences set forth as a 13'^ bullet on the 19'^ line of a page
crowded with text and which appeared as follows:
"[I understand] • that if 1am noi a U .S. citizen, a plea of guilty or no!o contendre may result in deportation exclusion from
admission into the U .S., or denial of naturalization."'
A similar warning was couched near the bottom of the State's omnibus
"Waiver of Jury Trial, Waiver of Ten Days to Prepare for Trial, Court's
Admonishment, Waiver of Presentence Report and Plea Agreement," a one-page
form similarly crowded with waiver language employing seven-point-five font:
"Defendant iindei'stands tliat if lie/she is not a U.S. Citizen, a plea of guilty or nolo contendre may
result in deportation, exclusion from admission to tlieU .S..or denial of naturalization."''
No counsel was appointed to advise Appellant of potential deportation and
naturalization consequences which the warning and waiver purported to address.
' R.R. 2: 8-10
^R.R. 2: r4-15; R.R. 3: Ex. 1-2.
'Id.
This role, if performed at all, was taken on by judge and prosecutor. Neither was
any record made of admonitions given Appellant nor representations by the State.
STATEMENT OF PROCEDURAL HISTORY
Appellant was convicted and placed on community supervision for one
count of Possession of a Controlled Substance Penalty Group 2-A Less Than or
Equal to Two Ounces on October 28, 2013."^ A Motion to Adjudicate was
subsequently filed on June 2, 2014 and amended on August 15, 2014."^ Appellant
filed a writ of habeas corpus challenging the constitutionality of the conviction on
December 8, 2014.^ The trial court denied the writ on January 19, 2015.^ The
motion to adjudicate was dismissed on Februaryl9, 2015.^ This appeal was
subsequently taken on February 12, 2015. The appellate court declined briefing
and affirmed the trial court on April 30, 2015.^ Appellant subsequently filed
motions for extension of time to seek rehearing and for rehearing which were
granted on June 9, 2015 and denied on June 18, respectively. Appellant's motion
to extend time to file this application for discretionary review was granted on July
18,2015.
^ C.R. Vol. 1 at 9.
^Id. at 17.
®Id. at 33.
^ Id. at 55.
Q
Clerk's Supplement at 4,6.
^Appendix A.
GROUND FOR REVIEW
WHETHER PADILLA IS RENDERED MEANINGLESS BY 7.5-POINT
FONT WAIVER OF COUNSEL BOILERPLATE BURIED WITHIN
MULTIPLE FORMS WHICH STATES A PLEA MAY RESULT IN
"DEPORTATION, EXCLUSION FROM ADMISSION INTO THE U.S. OR
DENIAL OF NATURALIZATION."
ARGUMENT
In Padilla v. Kentucky the United States Supreme Court ruled that ''counsel
must inform her client whether his plea carries a risk ofdeportation."^® As a result
defense advocates nationwide now routinely research immigration law and consult
with immigration specialists to ensure their clients are advised of specific risks of
deportation and impacts upon naturalization which may accrue from a specific
charge and its disposition.
Counsel must be Present to Advise the Undocumented Accused.
The Padilla court sensibly recognized that the consequence of a particular
disposition of a case could have adverse effects to the non-citizen accused which,
depending upon the case, might far exceed any court-ordered punishment. It is
hard to conceive of a case which more aptly illustrates this point than that at bar.
Appellant was arrested for possession of a substance which had only recently been
559 U.S. 356, 373 (2010) (emphasis added).
3
illegalized in Texas.He possessed that substance in an amount comparable to
that for the Class B misdemeanor for possession of marijuana, a charge which
would have entailed de minimus considerations with regard to immigration
consequences.^^
It is probable no one present in the courtroom who was connected with
Appellant's case knew a conviction for less than two ounces of K-2 would be
treated any differently by the federal immigration law than a comparable amount
of marijuana, let alone that it could result in deportation or bar naturalization.
Even if the prosecutor or judge knew as much, it may not have been high on their
list of priorities during a routinely hectic docket call. After all, looking out for the
interests of the accused is the role of the defense advocate.
The Padilla court went to some length to make clear that counsel must be
present to fulfill a function which transcends imparting specific information to the
accused.That is ... providing counsel. Otherwise, presumably the plastic robot
in Elysium that counsels Matt Damon would be sufficient to satisfy the Sixth
Amendment and considerations of Due Process. More, the court made clear that
the mere fact of the presence of a defense advocate may affect disposition of the
C.R. 5-6.
''Id.
'^559 U.S. at 373.
case in a manner which could avoid deportation or naturalization consequences/"^
Nonetheless, in the case at bar the trial court proceeded on the assumption
that a two occurrences of bulletized phrase in 7.5-point font boilerplate buried in a
stack of forms which was hardly legible even if one knew to look for it somehow
adequately advised Appellant of the potential consequences of entering into a
plea." The appellate court has gone to great length in its opinion to express its
agreement. The stuffing was in the turkey, however buried or hard to read.
Except it was not. Even had this language had been in 48-point bold Comic
Sans MS it would have neither taken account of the specific charge Appellant
faced nor the specific potential consequences which might have accrued from a
particular disposition. Moreover, whatever admonition the trial court judge may
have provided to Appellant cannot be verified given no record was made of the
hearing. It is not enough to parrot the language that deportation, exclusion or
frustration ofnaturalization may be the result of a guilty plea.^^ This is patently
not providing counsel to the criminal accused.
Waiver of Counsel in a Padilla Case is Different.
Padilla makes clear that the undocumented criminal accused is distinct from
''Id.
Appendix B.
^^559 U.S. at 373.
the United States citizen who faces criminal charges due to the potential
consequences resulting from the disposition of the case. It then follows that trial
courts bear the responsibility to ensure that the indigent undocumented criminal
accused receives access to counsel and that the appointed attorney provides
counsel to his client.
If counsel is to be waived - and it seems doubtful that Padilla contemplates
waiver of counsel given the nature of the particular risks in these cases that cry out
for counsel - then surely that waiver must be extraordinary in its rendition. If the
court is to fulfill the role of the defense advocate envisioned by Padilla then the
record should reflect that the accused was advised of the specific consequences of
the possible dispositions of the particular charge he faced.
In this case the judge claimed at the writ hearing that he thoroughly
admonished Appellant regarding his waiver of counsel." No record was made to
demonstrate that. However, the judge's reiteration at the writ hearing of the nature
of admonitions given at the time the plea was entered demonstrate that he did not
provide counsel which took into account the specific facts of the charges faced by
the accused, the specific potential consequences carried by such a charge and the
individual context of the accused's immigration status.
Nothing less could possibly satisfy the mandate of Padilla. A
R.R. 2: 10.
constitutionally-sufficient waiver form would presumably require drafting in
considerable detail, presumably by the prosecutor, on a case-by-case basis and no
doubt work a considerable additional burden to the court with regard to
considerations of judicial efficiency.
Again, the undocumented indigent criminal accused is to be appointed
counsel regarding the potential immigration and naturalization consequences of
entering into a plea. It follows from the holding in Padilla. It is just common
sense.
The Bases of Disposition by the Appellate Court Avoid the
Constitutional Issues Present in the Writ.
First, sworn pleadings presumably need only be supplemented with live
testimony when such testimony would establish some fact upon which the writ
relies. The holding in Ex parte Garcia makes clear this proposition in its
1 c
discussion of the cases upon which the opinion relies. In the instant case the
warning and waiver employed by the trial court is on its face invalid. No
conceivable indigent criminal defendant who potentially faces immigration and/or
naturalization consequences as a result of a particular disposition in Parker County
Court at Law No. 1 can be reasonably said to have received counsel with regard to
353 SW 3d 785,789 (Tex. Crim. App. 2011).
7
those consequences.
Appellant's status as citizen or non-citizen resident is a matter of public
record that does not require his testimony to establish and can readily be verified.
The court became aware of it at the time of his plea. The trial court judge's
purported thorough admonishment of Appellant of the fact that a plea could result
in immigration consequences itself demonstrates this matter was before the court."
More significantly, had Appellant taken the stand at the writ hearing the
record of that testimony could potentially have been used against him in future
court proceedings whether criminal or civil, state or federal, pertaining to the
underlying charge or a prospective immigration law matter. A requirement that
similarly situated criminal accused do so would seem to be a clear disincentive to
the assertion of their right to counsel which would undermine Padilla and
generally discourage the assertion of fundamental rights.
Further, both Appellant's writ and motion for rehearing were sworn, as
required by law. Sworn pleadings have long been sufficient to establish their
contents for the purpose of hearings on writs of habeas corpus, to include in
on
Padilla writ hearings. Consequently, this Court should reject as unconstitutional
the interpretation the opinion urges of Ex Parte Garcia that live testimony must be
had in lieu of sworn testimony regardless of potential consequences to petitioners
'^R.R.2:10.
State V. Guerrero, 400 S.W.3d 576, 588-89 (Tex. Crim. App. 2013).
8
such as criminal and/or civil penalties or liability.
O 1
Second, the appellate court misconstrued the holding in State v. Guerrero.
It is true this Court observed in that case that the petitioner's undocumented status
made him subject to deportation regardless of the outcome of his criminal case.''
However, this Court's holding in that case clearly turned on fact that Guerrero had
been convicted some years prior and Padilla did not apply retroactively.
Even were retroactivity not at issue, the lack of a legal basis to be present in
the United States does not necessarily subject an individual to deportation or bar
naturalization. This is was true even before the passage of the executive orders of
2014-15 specifically addressing these issues. The Padilla guarantee to counsel
cannot be made to depend upon the particulars of immigration status at the time of
the adjudication. State criminal courts are not suited to this analysis particularly
given those particulars are a moving target.
Third, Appellant cannot very well be penalized for not invoking law
supporting his position which is specific to the issue of his constitutional right to
counsel regarding immigration consequences and the sufficiency of a waiver of
counsel. The paucity of black-letter law in this area is testament to the fact that
there is a built-in disincentive to the undocumented criminal accused to assert her
400 S.W.3d at 588-89.
''Id.
Id. at 588.
or his rights. For example, as where appellate courts require the accused to take
the stand to establish undocumented status, exposing themselves to unknown
consequences, merely to assert their right to counsel. This lack of clear guidance
also underscores the need for this Court to dispose of this matter on its
constitutional merits rather than some procedural basis.
Finally, the inadequate nature of the warning and waiver regarding potential
immigration consequences in this case is manifest. The appellate court devotes
two pages of its opinion setting out the particulars ofthe waiver.^"^ This waiver
was a separate page in the stack of documents Appellant was presented with and
distinct from the warning regarding immigration and naturalization consequences.
Both are effectively illegible. Both are in 7.5-point font and couched in and
among language on other matters regarding waiver of rights and the entry of the
plea. The only thing their appearance clearly demonstrates is that Parker County
Court No. 1 and/or the Office of the County Attorney are either attempting to
economize on paper by drafting constitutional waivers in 7.5-point font language
and cramming it all on a single page and/or they are not particularly in having them
legible. Again, these forms were presented to Appellant in the context of a plea
hearing at which no record was made.
Additionally, the appellate court's treatment of the waiver of counsel form is
Appendix A at 5-7.
10
a red herring. The problem is not that Appellant was not advised that waiving
counsel generally carried with it risk but those aspects of that risk specific to
immigration and naturaUzation. The opinion's two-page treatment of the waiver
addresses everything but what mattered; the single line of seven-point font that
stated:
"Defendant understands that if he/she is not a U.S. Citizen, a plea of guilty or nolo contendre may
result in deportation, exclusion from admission to the U.S., ordenial ofnaturalization.""'^
CONCLUSION AND PRAYER
This case has profound implications both for the future of this young man
and his family and the rights to counsel and due process of a class of persons living
in the United States who are too often treated by our formal institutions much as
African Americans were in the 1830s. The waiver of counsel and warning of
immigration and naturalization consequences employed by the trial court in this
case are an affront to the principles that constitutional rights must be freely,
voluntarily and knowingly waived and that the criminal accused must be
counselled as to deportation and naturalization consequences. Consequently, this
case should not be disposed of on some procedural basis. Rather this Court should
decide this matter squarely on its constitutional bases. For these reasons Appellant
asks that his application be granted, allowing briefing and oral argument so that
^^Id.
11
this honorable Court may provide clear guidance to the courts and practitioners.
Respectfully submitted,
/s/ Todd Greenwood
Todd Greenwood
Attorney for Appellant
State Bar No. 24048111
900 Eighth Street
Suite 716
Wichita Falls, Texas 76301
Tel./Fax: (940) 689-0707
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i), the undersigned certifies that this brief
complies with the type-volume limitations.
1. Exclusive of the exempted portions, this brief contains 2, 409 words. I am
relying on the word count function of Microsoft Word.
2. This brief has been prepared in proportionately spaced typeface using
Microsoft Word in Times New Roman, 14 pt. font except for footnotes which are
in 12 pt. font and the cover, table of contents, and index of authorities which are in
14 pt. Times New Roman.
3. If the Court requests, the undersigned will provide a print version of the
brief and/or copy of the word or line printout.
4. The undersigned understands a material misrepresentation in completing this
certificate, or circumvention, of the type-volume limits, may result in the Court's
12
striking the brief and imposing sanctions against the person signing the brief.
Respectfully submitted,
/s/ Todd Greenwood
Todd Greenwood
CERTIFICATE OF MAILING AND SERVICE
On the 19th day of August 2015, a copy of the foregoing document was
served upon opposing counsel, Natalie Bamett at the Parker County Attorney's
Office; 118 W. Columbia St.; Weatherford, TX 76086 as well as on the State
Prosecuting Attorney at P.O. Box 13046; Capitol Station; Austin, Texas 78711.
/s/ Todd Greenwood
Todd Greenwood
13
Exhibit A
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00074-CR
Ex parte Angel Ricky Espinoza a/k/a § From County Court at Law No. 1
Jose Ricky Angel Espinoza
§ of Parker County (CIV-14-0999)
§ April 30. 2015
§ Opinion by Chief Justice Livingston
§ (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court's order. It is ordered that the order of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By fs/ Terrie Livingston
Chief Justice Terrie Livingston
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00074-CR
EX PARTE ANGEL RICKY
ESPINOZA A/K/A JOSE RICKY
ANGEL ESPINOZA
FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
TRIAL COURT NO. CIV-14-0999
MEMORANDUM OPINION'
Angel Ricky Espinoza a/k/a Jose Ricky Angel Espinoza appeals from a
trial court order denying his pretrial application for writ of habeas corpus.^ We
affirm.
'See Tex. R. App. P. 47.4.
^We note that the trial court clerk has assigned this application a separate,
civil cause number even though this is an application under section 11.072 of the
code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.072, § 4(b) (West
Supp. 2014) ("At the time the application is filed, the clerk of the court shall
assign the case a file number ancillary to that of the judgment of conviction or
As part of a plea bargain, appellant pled guilty to misdemeanor possession
of a controlled substance. The trial court followed the agreed-upon punishment
and assessed appellant's sentence at 180 days' confinement, probated for one
year. After the State filed a motion to revoke appellant's community supervision,
he filed this application for writ of habeas corpus, alleging that the written waiver
of counsel he signed during the plea bargaining process was ineffective because
he was not first admonished of immigration consequences specific to the offense
in accordance with the reasoning of Padilla.^ Padilla v. Kentucky, 559 U.S. 356,
373-74, 130 S. Ct. 1473, 1486-87 (2010). Appellant argued at the hearing on
the application that because he is not a United States citizen, Padilla required the
trial court to appoint counsel to advise him of the potential immigration
order being challenged."). Accordingly, we have assigned a criminal cause
number to this case.
^Appellant argued in his application.
The United States Supreme Court has held that "counsel must
inform her client whether his plea carries a risk of deportation" in
case[s] in which the criminal accused is not a citizen of the United
States and therefore potentially subject to deportation as a result of
disposition of the criminal charge by the court. The Padilla court in
no way indicated neither does it appear colorably arguable the court
intended to imply that a waiver is sufficient to meet the requirements
of the Constitution where informs the criminal accused that a plea
may or will carry the risk of deportation. Additionally, the waiver
utilized in this case, besides being in eight or nine point font, was not
specific to immigration consequences which might result from the
plea. In fact, it appears that such consequences are mentioned
nowhere in the waiver. [Citation omitted.]
consequences of the plea in order for his waiver of counsel to be knowing,
intelligent, and voluntary.
After a hearing, the trial court denied appellant's application. In its order
denying relief, the trial court found that the waiver of counsel that appellant
signed in connection with the plea bargain "required [him] to understand that if he
. . . is not a U.S. Citizen, a ple[a] of guilty or nolo contendere may result in
deportation, exclusion from admission [to the] U.S., or denial of naturalization,"
and. that before accepting appellant's plea, the trial court "ascertained that
[appellant] had been admonished of his rights, and that [appellant] demonstrated
an understanding of" the waiver, including its consequences. The trial court also
found that appellant knowingly executed the waiver and agreed to the plea
bargain. Thus, the trial court concluded that appellant freely, knowingly and
voluntarily (1) waived his right to an attorney, (2) waived his right to apply for a
court-appointed attorney, and (3) entered his plea.
We review a trial court's ruling on a habeas corpus application for abuse of
discretion. Kniatt v. State, 206 S.W.Sd 657, 664 (Tex. Crim. App.), cert, denied,
549 U.S. 1052 (2006). The trial court's application of the law to undisputed facts
is reviewed de novo. Ex paiie Roberts, 409 S.W.Sd 759, 762 (Tex. App.—San
Antonio 2013, no pet.). A defendant's sworn representation that his or her waiver
of counsel and guilty plea are knowing, intelligent, and voluntary "constitute[s] a
formidable barrier in any subsequent collateral proceedings." Kniatt, 206 S.W.3d
at 664.
Although counsel referred to the status of similar persons in appellant's
situation as "undocumented" and argued in the application that the impact on
appellant is that he "may now face deportation and loss of the ability to re-enter
the United States and to ever.. . gain legal permanent residency or citizenship,""^
appellant provided no testimony regarding the nature of his noncitizen status.
See Ex parte Garcia, 353 S.W.3d 785, 789 (Tex. Crim. App. 2011) ("Sworn
pleadings provide an inadequate basis upon which to grant relief in habeas
actions."). If, at the time of his plea and waiver of counsel, he was not present in
the United States legally, then his plea or waiver of counsel could not be
considered involuntary for the failure to inform him of immigration consequences
specific to the charged offense, regardless of the applicability of Padilla. Cf.
State V. Guerrero, 400 S.W.3d 576, 588-89 (Tex. Crim. App. 2013) ("Unlike Jose
Padilla, appellee was an undocumented immigrant and was deportable for that
reason alone, both in 1998 and today. Had appellee gone to trial with counsel
and been acquitted he would not have been transformed into a legal resident.
He could have been deported immediately after walking out of the criminal
courthouse. The prospect of removal therefore could not reasonably have
affected his decision to waive counsel and plead guilty." (footnotes omitted)).
If, instead, appellant had legal noncitizen status at the time of his plea, he
has cited no law applying Padilla—a case deciding the extent of an attorney's
'^Appellant also asserted in indigency filings that he did not have a social
security number or idehtification card and, thus, could not work.
duty to his or client—^to waivers of the right to counsel. See U.S. v. Kabore, No.
1:13-CR-217-ODE, 2014 WL 2809870, at *6 (N.D. Ga. June 19, 2014) (order)
(holding that because applicant waived counsel in underlying state proceeding,
Padilla is inapplicable). To do so would elevate the consideration of
consequences of negative immigration status over other negative consequences
that could occur when a defendant elects to waive the right to counsel. See U.S.
V. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 2455 (2002) ("[T]he law ordinarily
considers a waiver knowing, intelligent, and sufficiently aware if the defendant
fully understands the nature of the right and how it would likely apply in general in
the circumstances—even though the defendant may not know the specific
detailed consequences of invoking it."); cf. Guerrero, 400 S.W.3d at 589 (noting
that court of criminal appeals has repeatedly held that article 26.13 statutory
admonishments are not required in misdemeanor cases).
The State introduced as evidence a signed "Waiver of Lawyer and
Request to Proceed Pro Se," which informed appellant of his right to be
represented by a lawyer and to have a lawyer inform him of his "rights to a trial
by jury and . . . other rights." The waiver also contained six detailed recitals,
among them the following: "if I am not a U.S. citizen, a plea of guilty or nolo
contend[e]re may result in deportation, exclusion from admission into the U.S., or
denial of naturalization." The waiver further informed appellant that proceeding
without counsel could lead to loss of any defenses, waiver of the right to
complain about technical errors, and waiver of the right to—and ability to
complain on appeal about the lack of—effective assistance of counsel. Finally,
the waiver concludes,
I have been advised by the Court of my right to representation
by counsel in the trial of the charge pending against me. I have
been further advised that if I am unable to afford counsel, one will be
appointed for me free of charge. I acknowledge that I am an adult,
have lived independent of my parents, have sufficient knowledge
and education to understand what I am reading or ask question[s]
about portions I do not understand and have no learning difficulties
that impede day-to-day living. I will immediately let the judge know
of any misunderstandings or questions I have about the information
contained on either side of this document.
I have read and understand the foregoing as well as the other
side of this paper. The court has this date admonished me of the
foregoing rights. I waive arraignment by this court. I waive my right
to a lawyer in this case and request the court to proceed with my
case without a lawyer being appointed for me. I waive my right to
counsel.
Underneath appellant's signature is the following recital, signed by the trial judge:
"Defendant was admonished, demonstrated an understanding of the above . . .
consequences of the waivers set forth herein and knowingly made such waivers
of plea of guilty/nolo contend[e]re." There is no evidence in the record that
appellant did not understand or could not read English.^
Based on the foregoing, we conclude and hold that appellant did not meet
his burden of defeating the presumption that the recitals in the written judgment
are correct and, therefore, that the trial court did not abuse its discretion by
^Appellant's counsel asserted in the application that appellant had been
living in the United States since he was between four and six months old.
denying relief. See Guerrero, 400 S.W.3d at 583, 589. We affirm the trial court's
pretrial order.
/s/Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON. C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 30, 2015
Exhibit B
CAUSE NO. CCM-i3-05SS
THK STATE OF TEXAS IN THE CX)U>JTY COURT AT LAW NO. 1
VS. OF
nSPINOZA. DEFENDANT PARKER COUNTY. TEXAS
WAIVER OF LAWYIiR AND REQUEST TO PROCEliD PRO SE
I am ANGEL RICkV KSPINOZA whois charged wllhPDSS CS PG 2-A 20Z in U»c ubovc causc.I understand ihmI have Ihc followmg rights:
- to have arraignmcnl by ihis court (be advised of the chiirgcs; range of punishment, iind my rights)
- to have a trial by jury;
• lo be represented by a lawyer chosen by me;
• lo have a lawj'cr appoihled for mc if I cannot afford one;
- lo have a lawyer inform mc of my rights lo a trial by jury and my other rights;
- to continue to represent myself; and
• lo have len days after appointment of any lawyer before entering a plea.
I unidersfand:
- Ihc nature of the charge against me and Ihc range of punishment for the chargc;
- thai upon a plea of guilty or nolo contendre wllh a written, signed waiver of a Jury, tlic court may assess punishmcnl al its own discretion;
• that proceeding witlioul a lawyer could result in a conviction or more severe punishmcnl than may have resulted had I been represemcd by a lawyer
-1 may withdraw my waiver of counscl, under.ccrtain conditions;
- ihat if 1 receive dcfcrn^d adjudication, on violation of a condition of probation I may be arrested and detained. Also 1 am entitled to a hearing
Itmiled to the deternunation by ihe court of whether it proceeds with an adjudication of giiill oh the original charge. After an adjudication of guilt,
all proceedings, including assessment of punishment.
pronuuncement of sentence,grantingof probationand any appealcontinueas if the adjudication of guilt had riotbeen deferred. The court may
^sess punishment anywhere within the range provided by the law for this ofichse; and
- thai if I am not o U.S. citizen, a plea of guilty or nolo contendre may result in deportation, exclusion from admiission inio the U.S., oi' denial of
naturalizalion.
Vou May Be Making a Big Mistake, and the following will explain why:
A. You wiU rcccivc no special favors or os.sisiance from the bcnch;
B. You will be expected to comply with all relevant rules and procedure;
C. Your right to sclf-represcntalion is not n license to abuse the dignity of the courtroom or to gel favorable ircalnicni;
D. The Court may. and will, termiriate your self-representation should you deliberntely engage in ol>struclionist or other serious misconduct:
E. If the C^urt wishes, standby counscl will be appointed in order to represent you in the event termination of your self>rcprescntation becomcs
necessary. or to aid you if and when help is requested; you have no standing to object (b suchi^pointment; and
F. Ifchoosing seif-rcprcscntation. youwill relinquish many,of the traditional bcnefils associated witli having o laxyycr represent you
1. In all but w cxtrdordinanly simall number of cases, an accused who undertakes sclf-represcntalion will lose whatever defense he may have;.
2. You may give up the right to complain of any technical errors in your case;
3. Your lackpf cvidcr)liary knowledge and experience will necessarily lead lo woiver of errors in the admission and exclusion of evidence;
4. You may dius be cunvlctcd upon incompetent, irrelevant or otherwise inadmissible evidence;
5. You fa(x the danger of conviction, though you be not guilty as a maitter of law. bccause you do not know how to establish reasonable doubl
that you arc guilty;
6. You specifically forego the right to the crfectiye assi.stance of counsel, and. may not be heard laler to complain oii ihis ground:
7. In the sense that assistance of counscl is essential to a fair trial and due process of law, you likewise relinquish those gxmrantccs; and
8. Other benelits such its selection of nn impartial jury, a fair final iirgurneni by the State, errorless instructions to ihcjur^' including any defensive
isstied.
1 have been advised by the Court of my right to representation by counsel in the trial of the charge pending against mc. I have been further advised that if 1
am unable to afford counscl. one will be appointed for mc free of chargc. 1 acknowledge that I am an adult, have lived independent of my parents, have
sulTicicnl knowledge and education to.understand what I am rcading.or ask question about portions I do not understand and have no learning difnculties that
impede day-to-day living. I will immediately let the judge know of any misunderstandings or questions 1 have about the information contained on either side
bfthis documenL
I have read and understand the foregoing as well as the other side of this paper. I'he court has this .date admonished mc of the foregoing rights: I waive
arraignment by this court. I waive my right to a lawyer in this case and request the court to proceed with niy ea^c without a lawrycr being appointed for me. I
waive my right to counscl.
/<9-3.g-/ 3
WAIVER OFJtmV
1understand thai 1havea rightlo havea trial before a jury and to have a jup' determine if I am guilty or not, and if thejtiryshould find me guilty; ihcn to
have the jury determine the amount of punishment 1should receive. Knowing.said rigiils. I give up the right to be tried before a jury.
Wherefore. I do hereby enter my plea to the charge nied'againsl-me in this case; and 1 request the Court accept my plea of guilty and proeecd to
assess punishmcnl and to sentence me in accordance with the law.
receweoano^d
Defenc^i was admonished, demonstrated an understanQi^ of the waivers set forth herein and knowingly made
sue! Bliium^icndrc.
ivers ofplia ofguiUiisirrotp
0CT28Z0W gy-/:?
Je
-ay'f-1:-'
EXHIBIT NO.
DATeM^4 RPTR: JT
CAUSE NO.1 " i ^-06^*5
THE STATE OF TEXAS § m TVIE COU-NTY COURT
VS. § ATLAWMO. 1 OF EXHIBIT NO \
f\0fp4
§ PARKER COUNTY. Texas DATE:AiM!?RPTR:JT
WAIVETI OP .iURY TIHAL. WAIVRU OK TKN DAYS TO PUEPATtE FOR TRtAU COURT'S -
AnMONTSHMENTS. WAWRR OF t'RESENTENCE REPORT AND IM.EA AGREEMENT
COIvlES NOW, iho Defendanl, joined by his/her alloiTiey and the Attomey for Ihc Stale in llie
abovc-slylcd arid niinibcrcd caiiso, waives higher right to a trial and liis/her right to a ti ial by jury, as to
both guilt and innbccncc and also as to punislinietil, and to confront his/her accusers, and if applicable',
waives tlie Icn (10) days allowed him/her lb prepare for trial. The Defendant and the-Stale hereby enter an
announcement of ready in liiis cause.
The plea leconinicndation set forth below is agreed to by the Defendant, his/her atloiiiey and the
State's attomey, as evidenced by their respective signatineS below. The Defendant understaiids that the
vecommendation is not bindirig on the Court and if he/she pleads guilty and the punishment assessed by the
Cbui't does not exceed the punishment reconimended, an appeal herein may be prosecuted only with the
pomiissionof the trial court. Rejection of the piea veconuncndalion will allow Defendant to withdraw
his/her plea of guilty or nolo contcndere. All written motions on Tile arc hereby waived.
Defendant acknowledges Ih'al hc/slie is aware of the fiill range of punishment provided by law for
this offense.
If Defendant has not been previously aiTaignod in Ihis causc, Defeiidant waives arraignment at this
time.
If the plea recommendation,is for deferred adjudication cominunity supervision, the Defendant is
hereby infomied that on violation of a coilidilibn of comriiunity supervision the Defendant may be an ested
and detained. Defendant is entitled to a hearins limited lo the determinalion by the Court of whether il
proceeds with an adjudication of guilt on the original charge. After an adjudication of guilt, all
proceedings, including assessment of punislniieht,pronoiuicement of sentence, gianting of comiTiunity
supervision, and Defendanl's appeal continue as if the adjudication of guilt had not been defen ed. Tlie
Court may assess pimisimient anywhere within the range provided by law for ihis offense.
Defendanl utiderstands thai if he/she is not a U.S. Citizen, a plea of guilty or nolo contcndere may
result in deportation, exchisibu from admission to the U.S.j or denial of naturalization.
Tlie Defendant waives a pre-sentencc report and his/her right to have an alcohol evaluation
performed priorto sentencing, pefendantacknowledges his/her signatuic below is made fi^eely and
voluntarily and that he/she understandsthe content of this document and it's effect.
Counsel acknowledges explaining this documcnl to Defendant and that it is counsel's belief that
Dcfendaiiit understands the same.
PLE/S RECOMMENDATION _ OR OPEN PLEA To COURT .
OFFENSE CHARGED; C-S <."=• A-oz- _(CLASS B)
RANGE OF PUNISI IMENT; A fine not to excecd $2,000.00, a jailterm not to exceed 180 days, or both, _
24 — 100 hours of conimunily service -i- court costs.
AGREED RECOMIVIENDATION: -t CIC. j- ^ _ ,4'
-4- bodP -i
DEFENDANT'S ArrORNEY
STATE>g77r'fO RNEY ' DATE
Defendanlwas admonished and demonslralcdan nnderslandh^g of the above,
laivers s(a-#orrin553n andIcjowiiisly such waivers and plea of guiliy/nolo t^hUji clock
/ <3 OCT 2 8 2013
DATE Jeone Brun^, Co. Clerk
Clerii '