Vargas, Victor James

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  viaȱŽ–Š’•ȱ˜—  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 SOO/SOO!i'I a£pnr ~::i"'F;i:~s-ra L!~901 018LZL8908 X'i~'>~'·~:};~;~;,~~~~i~~ ~~ ~ ~- , • I : .\___....-;:-? . . .. ...,..-; - . - ~ • ! .·.. ~-:-·· / . • .•:i::. =. .· ~· ··t.~:~<,~~'.\ ??I Allen Wells, County Judge ·, _ AUES'.t:;- ·. ~ ~/:·:-;,' · ·. •/ · :t . ·-,~ ~~--~<'/ ~ ... .... 1 ...... ~···\,\' ~ .... • . . •''.,\.''.,,,·~-·' //( . · ....... : .TD.XUV ·u..uuJ . Date: Ja;-f/- 12. •unty Clerk, Dawson County ~ -- ATTORNEY: ~ ~- , Tiffi LAW OFFICES OF ARTHUR AGUILAR, JR. By:~~ Date: / /~ j t7 - }~ APysf/JTINGA~9fITY~ . ~J. d uLI- Carter T. Schildknecht, District Judge Date: /V~ 3o .~ 2.fa I Z- 1 CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGES Ir. q-.z. 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. 8 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: 9 - 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. 10 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 11 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. 12 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. 13 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; 14 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 20 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; 23 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; 24 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. 25 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