STATE'S RESPONSE BRIEF

Transcription

1 IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS RONALD OSWALDO ESPEJO, APPELLANT NO CR V. THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBER F K IN THE JUDICIAL DISTRICT COURT #4 OF DALLAS COUNTY, TEXAS; THE HONORABLE JOHN CREUZOT, JUDGE PRESIDING. STATE'S RESPONSE BRIEF CRAIG WATKINS Criminal District Attorney Dallas County, Texas BRADFORD CLEMENTS, Assistant Criminal District Attorney Oral Argument is requested, 133 N. Riverfront Blvd., LB 19 but only if Appellant is Dallas, Texas also requesting argument. (214) FAX (214) State Bar No

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... iii SUMMARY OF THE CASE... 1 STATEMENT OF FACTS & PROCEDURAL HISTORY... 2 SUMMARY OF STATE'S RESPONSIVE ARGUMENTS... 6 STATE'S REPLY TO APPELLANT S ISSUE NO AT THE TIME APPELLANT ATTEMPTED TO WITHDRAW HIS PLEA, APPELLANT NO LONGER ENJOYED AN AUTOMATIC WITHDRAWAL RIGHT, BECAUSE THE TRIAL COURT ALREADY HAD TAKEN THE CASE UNDER ADVISEMENT. STATE'S REPLY TO APPELLANT S ISSUE NO APPELLANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON ALLEGED MISINFORMATION REGARDING DEPORTATION CONSEQUENCES BECAUSE THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT APPELLANT'S AFFIDAVIT, STANDING ALONE, DID NOT ADEQUATELY SUPPORT THE THRESHOLD DETERMINATION THAT COUNSEL IN FACT COMMUNICATED THE ERRONEOUS ADVICE TO APPELLANT. STATE'S REPLY TO APPELLANT S ISSUE NO APPELLANT'S NO CONTEST PLEA WAS KNOWING AND VOLUNTARY, AS APPELLANT WAS MADE AWARE OF THE CONCOMMITANT DEPORTATION CONSEQUENCES BY HIS ATTORNEY'S ORAL STATEMENTS AND THE TRIAL COURT'S WRITTEN ADMONISHMENTS. THEREFORE, IT WAS A CONSTITUTIONALLY VALID GUILTY PLEA. i

3 LEGAL AUTHORITY APPLICATION CONCLUSION AND PRAYER CERTIFICATE OF SERVICE ii

4 United States Supreme Court Cases INDEX OF AUTHORITIES Boykin v. Alabama, 395 U.S. 238 (1969) Brady v. United States, 397 U.S. 742 (1970) Hill v. Lockhart, 474 U.S. 52 (1985) Padilla v. Kentucky, 130 S. Ct (U.S. 2010)... 15, 16, 27 Roe v. Flores-Ortega, 528 U.S. 470 (2000) Strickland v. Washington, 466 U.S. 668 (1984)... 14, 15 Texas Cases Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005) Crumpton v. State, 179 S.W.3d 722 (Tex. App. Fort Worth 2005, pet. ref d) Davis v. State, 861 S.W.2d 25 (Tex. App. Houston [14th Dist.] 1993, pet. ref d) DeVary v. State, 615 S.W.2d 739 (Tex. Crim. App. 1981)... 11, 12 Estrada v. State, 981 S.W.2d 68 (Tex. App San Antonio 1998, pet. ref d)... 18, 28 Ex parte Amezquita, 223 S.W.3d 363 (Tex. Crim. App. 2006)... 25, 26 iii

5 Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007) Fimberg v. State, 922 S.W.2d 205 (Tex. App. Houston [1st Dist.] 1996, pet. ref d)... passim Jackson v. State, 590 S.W.2d 514 (Tex. Crim. App. 1979)... 11, 12, 19 James v. State, No CR, 1997 Tex. App. LEXIS 4441 (Tex. App. Dallas Aug. 21, 1997, no pet.) (not designated for publication)...16, 17, 22, 23 Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) Labib v. State, 239 S.W.3d 322 (Tex. App. Houston [1st Dist.] 2007, no pet.) Manning v. State, 114 S.W.3d 922 (Tex. Crim. App. 2003) Manzi v. State, 88 S.W.3d 240 (Tex. Crim. App. 2002) Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998) Meyers v. State, 623 S.W.2d 397 (Tex. Crim. App. 1981) Pena v. State, 132 S.W.3d 663 (Tex. App. Corpus Christi 2004, no pet.)... 16, 22 Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) Scott v. State, 860 S.W.2d 645 (Tex. App. Dallas 1993, no pet.)... 12, 19 Tabora v. State, 14 S.W.3d 332 (Tex. App. Houston [14th Dist.] 2000, no pet.)... 16, 22 iv

6 Thompson v. State, 852 S.W.2d 268 (Tex. App. Dallas 1993, no pet.)... 12, 13, 19 Washington v. State, 893 S.W.2d 107 (Tex. App. Dallas 1995, no pet.)... 20, 21 Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) Williams v. State, 522 S.W.2d 483 (Tex. Crim. App. 1975) Wissinger v. State, 702 S.W.2d 261 (Tex. App. Houston [1st Dist.] 1985, pet. ref d)... 12, 13, 19 Ybarra v. State, 960 S.W.2d 742 (Tex. App. Dallas 1997, no pet.)... 15, 17, 22 Statutes 8 U.S.C. 1227(a)(1)(A) U.S.C. 1227(a)(2)(A)(iii) U.S.C. 1227(a)(2)(E)(i) U.S.C. 16(a) TEX. CODE CRIM. PROC. ART TEX. CODE CRIM. PROC. ART (a) TEX. CODE CRIM. PROC. ART (a)(4)... 27, 28 TEX. CODE CRIM. PROC. ART (c)... 18, 28 TEX. CODE CRIM. PROC. ART (d) TEX. CODE CRIM. PROC. ART TEX. FAM. CODE (b) v

7 TEX. GOV T CODE (a)(1) TEX. PEN. CODE 22.01(a)(1) TEX. PEN. CODE 22.02(b)(1) Rules TEX. R. APP. P. 38.1(i) TEX. R. APP. P. 25.2(a)(2)(B) vi

8 IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS RONALD OSWALDO ESPEJO, APPELLANT NO CR V. THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBER F K IN THE JUDICIAL DISTRICT COURT #4 OF DALLAS COUNTY, TEXAS; THE HONORABLE JOHN CREUZOT, JUDGE PRESIDING. TO THE HONORABLE COURT OF APPEALS: SUMMARY OF THE CASE THE CHARGE... 1 ST DEGREE AGGRAVATED ASSAULT FV (CR: 2)(TEX. PEN. CODE 22.02(b)(1)) THE PLEA... NO CONTEST (RR3: 5-6; CR: 6, 36) TRIAL COURT S CONCLUSION... NON-ADJUDICATION OF GUILT (RR7: 6; CR: 56) TRIAL COURT S SENTENCE... 5 YRS DEF. ADJUD. PROBATION + CONDS. (RR7: 6; CR: 58-60) 1

9 STATEMENT OF FACTS & PROCEDURAL HISTORY On May 7, 2009, the trial court conducted a pre-trial hearing during which, in pertinent part, (1) the State declared its plea bargain offer of $2,500 fine, 5 years deferred adjudication, and a stay-away-from-the-complainant order; (2) the Court errantly admonished Appellant on a second-degree felony punishment range of 2-20 years confinement in the penitentiary; and (3) Appellant refused the plea deal and said that he wished to go to trial on May 11, (RR2: 4-6). On May 11, 2009, 1 the State and Appellant did not go to trial. Instead, the trial court was first corrected by the prosecutor that Appellant faced a first-degree felony, and thereafter the trial court explained to Appellant that he faced a charge with a range of punishment of 5 to 99 years or life confinement in the penitentiary and an optional fine not to exceed $10,000. (RR3: 5). Appellant stated that he understood this. (RR3: 5). Appellant answered that he had gone over all of the documents and plea papers that [he] signed. (RR3: 5). Appellant further acknowledged that he understood all his rights and the waiver of those rights that are contained within those documents. (RR3: 5). Appellant entered an oral no contest plea. 2 (RR3: 5-6). The State offered and the trial court admitted Appellant s signed voluntary judicial confession and stipulation of evidence. (RR3: 6). 1 Appellant disputes certain hearing dates and labeling of record volumes. (Appellant s Brief: 3 n. 1). As any possible errors do not seem to impact the merits of the issues presented in this appeal, the State will simply go by the court reporter s record. 2 Although the signed plea papers actually indicated that Appellant s plea was Guilty rather than Nolo Contendere. (DXC: 1). 2

10 In Appellant s signed plea papers, he agreed to an affirmative finding of a deadly weapon, affirmative finding of family violence, $2,500 fine, deferred community supervision for five years, restitution to the complaining witness in the amount of $7,977.55, Batterer s Intervention and Prevention Program, no contact with the complaining witness, and other conditions of probation. (DXC: 3 1-2). Where the punishment range was to be checked off according to the type of felony charge, the second and first-degree felony boxes were both checked, but only the second-degree felony mark was also scratched out. (CR: 37). Appellant and his original counsel, Ms. Nancy Ohan, both signed that they read and understood the written admonitions, including one on deportation that said, If you are not a citizen of the United States, a plea of guilty or nolo contendere may, and under current Federal Immigration rules is almost certain to, result in your deportation, removal, exclusion from admission to the United States, or denial of naturalization. (CR: 37, 38). Also, the parties agreed that Appellant would submit to a pre-sentence interview and return to court on June 4, (Appellant s Brief: 4). The trial court accepted the no contest plea and accepted the affirmative finding of family violence due to the previous dating relationship between the complainant and Appellant. (RR3: 6). The trial court also made notes of having accepted both the plea and the affirmative finding on the trial docket. (CR: 4). Ms. Ohan said she thought it [was] a done deal and would be taking it to the Magistrate Court on June 4, 2009 to 3 DX connotes Defendant s Exhibit. 3

11 finalize it. (CR3: 7). Appellant already had his fingerprints taken on May 11, (CR3: 7). The trial court made notes on the trial docket that there would be an agreed plea on (CR: 4). Appellant did not go before the Magistrate Court on June 4, 2009, and his bond was later forfeited and he was re-arrested. (RR4: 5; CR: 5). A hearing was held on April 22, 2010 during which Appellant, represented by new counsel, moved the trial court to withdraw his plea. (RR4: 6; CR: 50). The trial court asked for some legal research on the issues presented before it would go forward with the hearing. (RR4: 12). At the next iteration of the hearing on April 28, 2010, the trial court explained why it had not yet made a formal finding of whether there was sufficient evidence of Appellant s guilt:...i don t know what I m going to do. I don t know what I m going to do on the case until after I hear evidence and review the pre-sentence investigation report. (RR5: 8). Appellant then offered an Affidavit stating, among other things, that Ms. Ohan had told him that a no contest plea would improve [Appellant s] chances with immigration, and that he would not have pleaded no contest if she had correctly told him that he would get deported. (DXA: 1-2). At the April 28, 2010 hearing, Ms. Ohan testified numerous times that she told Appellant point blank that he was going to be deported, and I told [Appellant] in no uncertain terms, he was going to get deported. (RR5: 19, 32). Ms. Ohan admitted that she originally told Appellant the wrong (second-degree felony) range of punishment applied, but that she spoke to Appellant after she had been corrected and properly advised 4

12 him of the correct first-degree range. (RR5: 23). Appellant was given the opportunity to change plans and go to trial if he so desired, but he still wanted to go forward with the no contest plea. (RR5: 23). Appellant then went before the trial court and plead no contest on the same day he first learned that it was a first-degree felony offense. (RR5: 25). Ms. Ohan testified, It was not my idea that [Appellant] plead no contest. It was [Appellant s]. I didn t think that would have any impact on the immigration status. (RR5: 25). Later Ms. Ohan also said that pleading no contest would not help [Appellant] at all. (RR5: 26). According to Ms. Ohan, she and Appellant went over the section of the plea papers that dealt with the possibility of deportation, and Appellant never expressed that he did not understand the content. (RR5: 26-27). Ms. Ohan said that she spoke to Appellant about misdemeanor versus a felony...immigration consequences, and it was still Ms. Ohan s understanding that even if this case were reduced to a misdemeanor, with the family violence finding he was going to be deported. (RR5: 19). Ms. Ohan further remarked, I knew for a fact he was going to get deported. It was just a case involving domestic violence, and I will say this for the record, I m not an immigration lawyer, but my understanding, a felony, by itself, is bad enough; if you put family violence with the case, it is likely that he is going to be deported. (RR5: 35). Appellant s Motion to Withdraw No Contest Plea was denied by the trial court. (CR: 6, 7). On May 4, 2010, the trial court found there was sufficient evidence to substantiate Appellant s guilt, granted deferred adjudication probation for a period of 5 5

13 years, further honored the parties plea agreement, and certified the issues presented herein for appeal. (CR: 56; RR7: 5-6). The trial court s findings of facts were as follows: (1) Nancy Ohan did tell Appellant that the range of punishment was 2-20 years and an optional fine not to exceed $10,000. That was incorrect advice. (2) Ohan, prior to Appellant s pleading guilty, did advise Appellant that the range of punishment was 5-99 years or life and optional fine not to exceed $10,000. (3) Court finds Appellant was aware of correct range of punishment at plea. (4) Nancy Ohan testified that she advised Appellant that he would be deported if there was a plea to assaultive offense and finding of family violence. Court accepts as true Ohan s assertion that she advised Appellant he would be deported. (5) That finding, plus recitation in plea papers regarding possibility of deportation leads court to conclude that Appellant was properly advised as to consequences of plea in regards to deportation or its possibility. (6) Court also accepts as true that Ohan advised Appellant to seek advice of immigration attorney. (7) Court finds that case was under advisement after plea of no contest on (CR: 7). SUMMARY OF STATE'S RESPONSIVE ARGUMENTS State's Reply to Appellant's First Point of Error: 6

14 At the time Appellant attempted to withdraw his no contest plea, Appellant no longer had a withdrawal right, as a matter of law, because the trial court had already taken the case under advisement by accepting Appellant s plea. The plea was accepted by the trial court at the May 11, 2009 hearing because Appellant entered a plea of nolo contendere; the trial court admonished him; the trial court heard evidence in support of the plea; and the trial court accepted the plea bargain agreement even though the punishment issue (whether to grant Appellant deferred adjudication probation) remained. Hence, an abuse of discretion standard applied for the trial court s decision on Appellant s post-may 11, 2009 motion to withdraw his plea, and the trial court did not abuse that discretion in overruling the motion. State's Reply to Appellant's Second Point of Error: Appellant s claim that he received ineffective assistance of counsel due to misinformation regarding deportation consequences requires sufficient establishment in the record of the allegation that Ms. Ohan had, in fact, communicated the misinformation to Appellant. Appellant s only evidence of the misinformation was his own affidavit, an affidavit that was thoroughly and vehemently refuted by Ms. Ohan s testimony. The record is devoid of any confirmation of the alleged misinformation by Ms. Ohan, or documents augmenting Appellant s affidavit that reveal the misinformation and show its conveyance to Appellant. Consequently, the trial court did not abuse its discretion in finding that Appellant s affidavit, standing alone, did not adequately support the 7

15 threshold determination that Ms. Ohan in fact communicated the erroneous advice to Appellant. State's Reply to Appellant's Third Point of Error: Appellant s no contest plea was knowing and voluntary with respect to deportation consequences because the trial court properly found, without abusing its discretion, that Ms. Ohan had frankly told Appellant that he would be deported and because Appellant signed a document indicating that he read and understood proper written admonishments about deportation consequences in the plea papers. STATE'S REPLY TO APPELLANT'S THREE POINTS OF ERROR: Appellant s Contentions: In his first point of error, Appellant contends that Appellant still had an absolute right to withdraw his no contest plea following the May 11, 2009 hearing. (Appellant s Brief: 10-11). Appellant reasons that the trial court needed to find that the evidence was sufficient to substantiate a finding of guilt and place Appellant on deferred adjudication probation before a case could be considered to have been taken under advisement. (Id.: 11). Since the trial court had not yet taken the aforementioned actions at the May 11, 2009 hearing and they had not occurred before Appellant attempted to withdraw his no contest plea, Appellant concludes that the trial court erred in not allowing him to retract his no contest plea as a matter of right. (Id.) 8

16 In his second point of error, Appellant contends that his guilty plea was involuntary because it was based on Ms. Ohan s alleged misinformation regarding deportation consequences. (Id.: 11). Specifically, Appellant alleges that he relied on legally deficient and incorrect advice from his allegedly ineffective trial counsel that a no contest plea would improve his chances of avoiding deportation. (Id.: 12). Based on this reason, Appellant then alleges an abuse of discretion in the trial court s finding of fact that Ms. Ohan properly informed him of the deportation consequences of a no contest plea. (Id.: 12). Due to Ms. Ohan s allegedly ineffective assistance, Appellant complains that the trial court abused its discretion when it denied his request to withdraw his allegedly involuntary plea. (Id.: 11, 14). In Appellant s third point of error, he oftentimes re-urges his second point of error above and alleges an abuse of discretion in the trial court s finding of fact that Appellant was aware of the deportation consequences when he plead no contest. 4 (Id.: 14). This argument also relies on the preceding claim that Ms. Ohan had misinformed him regarding the concomitant deportation consequences of a no contest plea. (Id.: 19). Due to Ms. Ohan s alleged misinformation and the allegedly confusing and differing written statements in the plea paper admonishments, Appellant maintains that his no contest plea was not knowing and voluntary. (Id.: 14, 20). State s Responses: 4 The undersigned attorney has taken some liberty in fleshing out Appellant s contention in this final point of error. Throughout Appellant s third point of error, the analysis appears practically identical to that of his second point of error namely, that Ms. Ohan had misinformed him about deportation consequences, and the trial court should not have found the converse. 9

17 Answering Appellant s argument in his first point of error, Appellant misreads certain Texas cases involving deferred adjudication pleas as standing for further taken under advisement preconditions than the very well-settled, modest requirements set out in the leading cases on the topic. Namely, in a deferred adjudication plea, Texas law does not require the trial court to find that the evidence was sufficient to substantiate a finding of guilt and place a defendant on deferred adjudication probation before the case is considered taken under advisement. Without these steps being taken, as in the case at bar, a case can still be taken under advisement such that a defendant no longer has the automatic right to withdraw his appeal. In response to Appellant s second and third points of error, the trial court did not abuse its discretion in finding that Ms. Ohan had informed Appellant that he would be deported if he plead no contest. This finding of fact was based on Ms. Ohan s straightforward testimony detailing her conversations with Appellant about deportation consequences, and the only evidence Appellant provided to refute it was his own selfserving affidavit. As the trial court alone was in the best position to assess and weigh this contradictory evidence, its determination should not be bothered on appeal. As a result of this finding, it follows that Appellant was aware of the deportation consequences of his no contest plea and that he therefore made a knowing and voluntary plea. Additionally, Appellant was made aware via the trial court s written admonishments, which substantially complied, at a minimum, with extant legal authority regarding deportation consequences. Furthermore, as Ms. Ohan correctly informed Appellant of the 10

18 deportation consequences of a no contest plea, she had not misinformed him and on such a basis Appellant is unable to establish that he received ineffective assistance of counsel. LEGAL AUTHORITY A. Right to Withdraw Plea A liberal practice prevails in this state concerning the withdrawal of a guilty plea. DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981); Jackson v. State, 590 S.W.2d 514 (Tex. Crim. App. 1979). A defendant may withdraw his guilty plea as a matter of right without assigning reason until such judgment has been pronounced or the case has been taken under advisement. DeVary, 615 S.W.2d at 740; Jackson, 590 S.W.2d at 514. Where the defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. DeVary, 615 S.W.2d at 740; Jackson, 590 S.W.2d at 514. On March 13, 1978, appellant announced ready for jury trial after pleading not guilty to the indictment before the court. After the jury was impaneled and sworn, the appellant decided to change his plea to guilty. The appellant was then duly and thoroughly admonished in accordance with Article 26.13, V.A.C.C.P., he waived his right to a trial by jury, and after certain stipulations were entered into and offered into evidence, the court accepted the appellant s plea of guilty. No punishment was assessed and the case was passed for a pre-sentence investigation. On April 28, 1978, the case was again called for the purpose of assessing punishment. At this time, the appellant declared that he wished to withdraw his plea of guilty and enter a plea of not guilty. This was overruled by the trial court and punishment was assessed Although appellant s decision to withdraw his plea in the instant case came prior to the actual pronouncement of the judgment, it came long after the matter had been taken under advisement by the trial court... 11

19 We conclude that the request to withdraw the guilty plea which was some six weeks after the court had taken the case under advisement came too late, despite the fact that punishment had not been assessed. There was no abuse of discretion. Jackson, 590 S.W.2d at The record reveals that appellant pled guilty and was admonished under Art , V.A.C.C.P. on October 4, At the subsequent hearing to assess punishment on November 29, 1979, appellant moved the court to withdraw his plea. The court denied this motion and assessed punishment at five years... Appellant s decision to withdraw his plea was too late since the court had two months earlier taken the matter under advisement. Under these circumstances we find no abuse of discretion in the court s overruling appellant s motion to withdraw his plea. DeVary, 615 S.W.2d at 740. Jackson, DeVary, and numerous subsequent cases now stand for the well-settled law in Texas that the passage of a case for pre-sentence investigation constitutes taking the case under advisement. See, e.g., Davis v. State, 861 S.W.2d 25, (Tex. App. Houston [14th Dist.] 1993, pet. ref d). More broadly, a case is deemed to have been taken under advisement after each side has concluded its presentation of evidence on the subject of guilt, the defendant s guilt has been established, and the only issue remaining to be decided is the appropriate punishment. Scott v. State, 860 S.W.2d 645, 646 (Tex. App. Dallas 1993, no pet.); Thompson v. State, 852 S.W.2d 268, 270 (Tex. App. Dallas 1993, no pet.). There is no requirement that there be a finding of guilt before a case is considered to have been taken under advisement. Scott, 860 S.W.2d at 646; Wissinger v. State, 702 S.W.2d 261, 262 (Tex. App. Houston [1st Dist.] 1985, pet. ref d) (holding that the case was taken under advisement after Wissinger plead no 12

20 contest, signed a stipulation of evidence and judicial confession, and the court accepted the plea but made no finding of guilt at the time instead ordering a pre-sentencing investigation report to aid the judge in his decision on whether to grant deferred adjudication or more severe punishment at a later hearing). In Thompson, Appellant entered a guilty plea; the trial court admonished him; the State offered into evidence appellant s judicial confession and written stipulation of evidence, which was admitted without objection; State and defense counsel both rested and closed; trial court accepted the plea and found that his plea was feely and voluntarily given; the court, however, did not make a finding of guilt at that time, instead passing the case for a later hearing following completion of a pre-sentence report. Thompson, 852 S.W.2d at 269. At that later punishment hearing, punishment evidence was presented, and appellant attempted to withdraw his plea. See id. The Dallas Court of Appeals analyzed the case, as follows: Our case involves a significantly different procedural posture [than that in Wilson v. State, 515 S.W.2d 274 (Tex. Crim. App. 1974)]. Appellant s guilt had been established at the initial hearing. Each side had obviously concluded its presentation of evidence on the subject of guilt. The plea had been accepted and all of the required admonishments had been given. The only issue remaining to be decided was the appropriate punishment. We do not think the fact that the court proceeded to hear testimony at the punishment phase reopened the issue of guilt. Because the procedural similarities and the Texas Court of Criminal Appeals s clear characterization of passing a case for pre-sentence investigation as taking a case under advisement, we conclude that Jackson and DeVary are the controlling authorities for our factual situation. Thompson, 852 S.W.2d at 270. (emphasis in original) 13

21 The Fort Worth Court of Appeals has read Thompson as standing for two principle points of law. First, generally, a guilty plea may be withdrawn as a matter of right without assigning a reason until the trial court accepts the plea. Crumpton v. State, 179 S.W.3d 722, 724 (Tex. App. Fort Worth 2005, pet. ref d). Second, a trial court accepts the plea after (1) the defendant has entered a plea of guilty or nolo contendere; (2) the trial court has admonished him; (3) the trial court has heard evidence in support of the plea, and (4) the trial court accepts the plea bargain agreement, if any, even though the punishment issue remains. Id. n. 5. B. Involuntary Plea: Ineffective Assistance of Counsel Via Misinformation about Deportation Consequences To reverse a conviction based on ineffective assistance of counsel, the appellate court must find: (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695 (1984). This standard applies to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59 (1985). To satisfy the second prong of the test enunciated in Strickland, an appellant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would instead have insisted on going to trial. Id. To apply a standard requiring us to show but for counsel's error appellant would not have pleaded guilty, this Court must make a threshold determination that counsel erroneously advised appellant. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App. 14

22 Houston [1st Dist.] 1996, pet. ref d). A plea based upon erroneous advice from counsel of a magnitude satisfying Strickland is involuntary, and an involuntary guilty plea must be set aside. See Boykin v. Alabama, 395 U.S. 238, 244 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). Where an appellant has been duly admonished, the admonishments create a prima facie showing that the guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). The appellant bears the burden of demonstrating that he was harmed because he did not fully understand the consequences of his plea. Id. To determine if a plea is voluntary, an appellate court must consider the record as a whole. Williams, 522 S.W.2d at 485. Voluntariness is determined by the totality of the circumstances. Ybarra v. State, 960 S.W.2d 742, 745 (Tex. App. Dallas 1997, no pet.). Judicial scrutiny of counsel's performance must be highly deferential. Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (U.S. 2010) (quoting Strickland, 466 U.S. at 693). In the context of immigration misinformation, the Supreme Court recently said, When the law is not succinct and straightforward [...] a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear [...] the duty to give correct advice is equally clear. Padilla, 130 S. Ct. at Even if the first Strickland prong is satisfied with immigration misinformation, the appellant must still show how he has satisfied the second prong, prejudice, to be entitled to relief. See id. (remanding case to the Kentucky trial court so that the prejudice prong 15

23 of the Strickland test could be applied). That means that an appellant still must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See id. at 1485; Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). In Fimberg, the Houston First District Court of Appeals reviewed a case in which the appellant and his son (acting as an interpreter for the appellant) both testified that the attorney promised the appellant he would not serve time if he pleaded guilty. Fimberg, 922 S.W.2d at 208. The attorney flatly denied making such a promise. Id. The reviewing court first noted that if the appellant s allegation was true, it would constitute misinformation. Id. However, there [was] nothing in the record to confirm whether this promise was made [by the attorney]. Id. The court then held that an appellant s: claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary. In cases in which a guilty plea has been held to have been involuntary, the record contains confirmation of the misinformation by counsel, or documents augmenting the defendant's testimony that reveal the misinformation and show its conveyance to the defendant. Id. Subsequent cases have similarly required corroborating evidence of an appellant s claim. See, e.g., Pena v. State, 132 S.W.3d 663, 669 (Tex. App. Corpus Christi 2004, no pet.); Tabora v. State, 14 S.W.3d 332, 337 n.7 (Tex. App. Houston [14th Dist.] 2000, no pet.). This Court has subsequently followed Fimberg and cited it as authority for the proposition that a defendant's claim at motion for new trial hearing that he was misinformed by counsel alone is not enough for court of appeals to conclude plea was involuntary. James v. State, No CR, 1997 Tex. App. LEXIS 4441, at *6-7 16

24 (Tex. App. Dallas Aug. 21, 1997, no pet.) (not designated for publication); see also Ybarra, 960 S.W.2d at 745 (following Fimberg closely in first analyzing whether the alleged promise by counsel was ever made before further addressing the involuntary plea issue). In evaluating and ultimately overruling an appellant s claim only supported by her own testimony that her plea was involuntary as a result of counsel s misinformation, this Court found no abuse of discretion by the trial court, stating, The judge who presided over the motion for new trial hearing, as well as the plea hearing and the adjudication hearing, was able to evaluate appellant's credibility, and he denied her motion. James, No CR, 1997 Tex. App. LEXIS 4441, at * Abuse of discretion review standard In determining whether the trial court abused its discretion, the appellate court must uphold the trial court s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). The reviewing court examines the trial court s ruling in light of what was before the trial court at the time the ruling was made. Id.; Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial court will not be overturned as long as its ruling was within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). 17

25 C. Involuntary Plea: Inadequate Deportation Admonishments To be constitutionally valid, a guilty plea must be knowing and voluntary. See Brady v. United States, 397 U.S. 742, 749 (1970). For this reason, the Texas Code of Criminal Procedure requires the trial court to admonish a defendant prior to accepting a guilty plea. See Meyers v. State, 623 S.W.2d 397, 402 (Tex. Crim. App. 1981). The required admonishments are specified in article of the Code. See TEX. CODE CRIM. PROC. art (a). Article provides for either oral or written admonishments. Id. art (d). Substantial compliance with the required admonishments is sufficient to uphold a guilty plea "unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." Id. art (c); see Estrada v. State, 981 S.W.2d 68, 70 (Tex. App San Antonio 1998, pet. ref d) (holding that Estrada understood the consequences of his plea and was not harmed, including immigration consequences that were given to him only in writing). APPLICATION A. Right to Withdraw Plea Appellant concedes that at the hearing on May 11, 2009 the trial court admitted Appellant s stipulation, stated that it accepted Appellant s plea, passed the case for a presentence interview and granted permission for a magistrate court to finalize it on June 4, (Appellant s Brief: 10). Although not conceded by Appellant, the trial court also 18

26 properly admonished Appellant in writing about immigration consequences stemming from his plea in Appellant s signed plea papers. 5 (CR: 37). At the close of the May 11, 2009 hearing, each side had concluded its presentation of evidence on the subject of guilt. See Wissinger, 702 S.W.2d at 262 (finding it unnecessary that Wissinger formally state that she rested or closed her presentation of evidence on the issue of guilt, when the record clearly indicated that she did). The oral and written comments by the trial court at the May 11, 2009 hearing, along with the statements and conduct (e.g., having Appellant s thumbprints taken) of Appellant s counsel forcefully demonstrate that the only issue remaining to be decided was the appropriate punishment namely, whether deferred adjudication probation should be granted or not (a matter that would depend upon the pre-sentence investigation). See id. Hence, when the hearing of May 11, 2009 ended, the trial court had accepted the plea under the guidelines set out by this Court in Thompson and Scott and Appellant no longer had an automatic right to withdraw his no contest plea. See Thompson, 852 S.W.2d at 270; Scott, 860 S.W.2d at 646; see also Jackson, 590 S.W.2d at 514; Wissinger, 702 S.W.2d at 262. Furthermore, the trial court s passage of Appellant s case for presentence investigation constitutes taking the case under advisement under Jackson, DeVary, and their progeny. After receiving and accepting Appellant s no contest plea on May 11, 2009, the trial judge was permitted to refer to the magistrate the final punishment determination 5 Please see the application section under the third point of error for further, more detailed support of this statement. 19

27 (including whether to grant deferred adjudication probation or not), as such a determination would clearly constitute a matter arising out of a criminal case involving a negotiated plea of guilty or nolo contendere before the court. TEX. GOV T CODE (a)(1). Contrary to Appellant s claim, it is of no consequence that a different individual would be carrying out this function; rather, the critical fact is simply that Appellant s plea had already been accepted. Appellant erroneously relies on Washington v. State, 893 S.W.2d 107, 109 (Tex. App. Dallas 1995, no pet.), Labib v. State, 239 S.W.3d 322 (Tex. App. Houston [1st Dist.] 2007, no pet.), and an unpublished Austin Court of Appeals case for his dual propositions that a trial court must (1) find that the evidence was sufficient to substantiate a finding of guilt and (2) place a defendant on deferred adjudication probation before a case can be considered taken under advisement. (Appellant s Brief: 10-11). The unpublished case cites Labib, which draws verbatim from Washington, yet Washington simply had more enumerated facts in support of the determination that the trial court had in fact taken the case under advisement, including that the trial court found the evidence sufficient to support the guilty plea and then deferred appellant s adjudication. Washington, 893 S.W.2d at 109. In essence, the Washington facts presented an easier scenario for this Court to rule on than Thompson had, but the additional facts in Washington did not thereafter become necessary requirements for future analyses. After all, Washington never purported to deviate from or revise the existing legal precedents in any way, and throughout the Washington decision this Court cites deferentially to 20

28 Jackson, DeVary, and Thompson as controlling authorities. See id. at A diligent review has not revealed a single case that expresses the notion that the law on this subject changed in any way following Washington. Ultimately, as all of Appellant s alleged authority hinges on Washington, a case consistent with Thompson, Jackson, DeVary, and the trial court s ruling in the case at bar, Appellant s claim that he still had a mandatory right to withdraw his no contest plea after the case was taken under advisement at the May 11, 2009 hearing must fail. Appellant s first point of error should be overruled. B. Involuntary Plea: Ineffective Assistance of Counsel Via Misinformation about Deportation Consequences Appellant contends that his guilty plea was involuntary because it was based on Ms. Ohan s alleged misinformation regarding deportation consequences. (Appellant s Brief: 11). Appellant first alleges an abuse of discretion in the trial court s finding of fact that Appellant s trial counsel properly informed him of the deportation consequences of a no contest plea to first-degree aggravated assault family violence. (Id.: 12). Specifically, the trial court s finding was: Court accepts as true Ohan s assertion that she advised Appellant he would be deported. (CR: 7). As a result of the alleged deportation misinformation, Appellant appears to complain that he received ineffective assistance of counsel resulting in an allegedly involuntary plea, a plea Appellant argues he should have been allowed to withdraw on this basis. (Id.: 14). Pursuant to the analytical process of Fimberg and Ybarra, the initial factual determination of whether Ms. Ohan misinformed Appellant with respect to his 21

29 deportation consequences must be examined. Fimberg, 922 S.W.2d at 208; Ybarra, 960 S.W.2d at 745. The State concedes that a no contest plea to a first-degree felony aggravated assault family violence case would not improve Appellant s chances of avoiding deportation with immigration. Hence, if Appellant s allegation were veracious, it would certainly constitute serious misinformation. The issue is then whether the alleged statement was ever made to Appellant by Ms. Ohan. Importantly, the only evidence presented by Appellant that Ms. Ohan said something other than that he would be deported if he plead no contest was Appellant s self-serving affidavit. (DXA). Appellant was given several opportunities at the April 28 th evidentiary hearing to present further corroborating evidence, and this was all he could muster. (RR5: 9-17). The State presented unequivocal testimony from Ms. Ohan that, for instance, she told Appellant, point blank he was going to be deported. (RR5: 19). Hence, Appellant s claim that he was misinformed by Ms. Ohan, standing alone, is not enough for this Court to hold his plea was involuntary. See Fimberg, 922 S.W.2d at 208; James, No CR, 1997 Tex. App. LEXIS 4441, at *6-7. Here, the record contains no confirmation of the misinformation by counsel, or documents augmenting Appellant s testimony that reveal the misinformation and show its conveyance to Appellant. See Fimberg, 922 S.W.2d at 208; Pena, 132 S.W.3d at 669; Tabora, 14 S.W.3d at 337 n.7; James, No CR, 1997 Tex. App. LEXIS 4441, at *

30 In the case at bar, the same trial judge presided over all the hearings at issue in this appeal. The judge was able to evaluate Ms. Ohan s credibility and review and assess Appellant s affidavit, and, after doing so, he found that Ms. Ohan had spoken truthfully about her proper immigration advice to Appellant and denied Appellant s motion. 6 Fimberg, 922 S.W.2d at 208; James, No CR, 1997 Tex. App. LEXIS 4441, at *6-7. On this record, without any evidence to confirm the bare statements in Appellant s affidavit, this Court should hold that the trial court did not abuse its 6 Appellant rails against the notion that Ms. Ohan gave Appellant proper immigration advice, first claiming Ms. Ohan said Appellant s immigration chances would improve with a no contest plea, and later changing course and assuming that Ms. Ohan had reached the right conclusion (that Appellant would definitely be deported) but for the second best reason (family violence finding rather than a felony conviction). Appellant admitted in his plea papers and hearing that, pursuant to section (b) of the Texas Family Code, he had a dating relationship with the complainant. (CR: 36; RR3: 6). Based on this acknowledged dating relationship, Appellant plead no contest to first-degree aggravated assault family violence under section 22.02(b)(1) of the Texas Penal Code. Even though dating relationship is not specifically mentioned and defined in the relevant immigration statutes of the United States Code, the following language would certainly encompass family violence committed by Appellant within a dating relationship under Texas law:...any crime of violence...committed...by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government. 8 U.S.C. 1227(a)(2)(E)(i). The complainant was protected from Appellant s acts under the domestic or family violence laws of Texas. Even Class A misdemeanor assault family violence under section 22.01(a)(1) of the Texas Penal Code is a crime of violence pursuant to the immigration statutes. See 18 U.S.C. 16(a) (defining crime of violence as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another ). And such a misdemeanor assault family violence conviction would have qualified Appellant for automatic deportation. 8 U.S.C. 1227(a)(2)(E)(i) ( Any alien who at any time after admission is convicted of a crime of domestic violence [...] is deportable. ). So Appellant is flatly wrong: Appellant could have been deported on the basis of a misdemeanor (or felony) assault family violence conviction with just as clear-cut a legal basis as there is for an aggravated felony conviction not involving family violence under 8 U.S.C. 1227(a)(2)(A)(iii). Simply put, there is no less clear of two possible reasons. (Appellant s Brief: 19). Appellant even goes on to point out that Appellant s no contest plea possibly could have resulted in Appellants deportation for yet another reason that it was for a crime involving moral turpitude for which the minimum sentence was a year or longer (as long as the crime was committed within five years of Appellant s admission). (Appellant s Brief: 18 n. 9). It appears that Appellant s counsel is not even sure whether Appellant had been in the United States more or less than 5 years before the commission date of this crime. Perhaps Appellant was deportable for even more reasons than the two certain reasons and this latter crime of moral turpitude possibility maybe even 8 U.S.C. 1227(a)(1)(A) ( inadmissible at time of entry or of adjustment ) applies such that Appellant could have been deported even if this present criminal case never came into existence. Needless to say, the greater the number of certain and possible reasons there are behind Appellant s approaching deportation, the more outlandish a proposition it is for a criminal attorney to be fully knowledgeable of every such possible and contingent deportation basis. The fact remains that the most basic, inescapable datum that Appellant needed to know was that he would be deported if he plead no contest, and the trial court found as a matter of fact that this critical information was relayed to Appellant by Ms. Ohan. 23

31 discretion in finding Ms. Ohan s aforementioned statement to be true (thereby implicitly sponsoring Appellant s plea as voluntary) and denying Appellant s motion to withdraw his no contest plea. Appellant s inability to prove misinformation above results in his failure to establish the first prong of a successful Strickland ineffective assistance of counsel claim in this context. Hence, a foray into a prejudice analysis under the second Strickland prong (as in the Padilla remand and Flores-Ortega) is unnecessary at this time, especially given that Appellant s brief makes no attempt at legal analysis beyond the first prong. See TEX. R. APP. P. 38.1(i); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005) (overruling appellant s Texas Constitutional challenge as inadequately briefed for providing no supporting legal argument or authority). Appellant s ineffective assistance of counsel claim should be overruled. C. Involuntary Plea: Inadequate Deportation Admonishments Appellant also alleges an abuse of discretion in the trial court s finding of fact that Appellant was aware of the deportation consequences when he plead no contest. (Id.: 14). As a result of these alleged factual determination errors, Appellant appears to complain that he received ineffective assistance of counsel resulting in an allegedly involuntary plea; 7 therefore, Appellant asserts that the trial court erred when it denied his request to withdraw his allegedly involuntary plea. (Id.: 20). 7 The undersigned attorney has taken some liberty in fleshing out Appellant s contention in this final point of error. Throughout Appellant s third point of error, the analysis appears practically identical to that of his second point of error namely, that Ms. Ohan had misinformed him about deportation consequences, and the trial court should not have found the converse. 24

32 The trial court certified Appellant s right to appeal the issues herein presented. (RR7: 5). Hence, rather than being under habeus corpus review, this case is on direct appeal pursuant to Texas Rule of Appellate Procedure 25.2(a)(2)(B) and Texas Code of Criminal Procedure article The State concedes that this Court must conduct a de novo review of any conclusions of law by a trial court on claims that trial counsel rendered ineffective assistance by providing insufficient warnings about the risk of deportation from a guilty or no contest plea. (Appellant s Brief: 15). However, the State disagrees with Appellant in his application of the aforementioned legal proposition to the issues presented in this appeal -- whether Appellant was aware of the deportation consequences resulting from a no contest plea is a purely factual question (not a conclusion of law). Notwithstanding whether Appellant s claimed second and third points of errors disputing fundamental factual determinations by the trial court were on habeus corpus review or direct review, an abuse of discretion standard should still apply and published opinions from such habeus corpus cases should be considered relevant and persuasive. 8 8 On habeus corpus appeal, the appellate court reviews the evidence presented in the light most favorable to the trial court's ruling for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In conducting this review, almost total deference should be accorded to the trial court's determination of the historical facts the record supports, especially when the fact findings require an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). The trial court's determinations of historical fact are entitled to some deference even when the court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts. Manzi v. State, 88 S.W.3d 240, (Tex. Crim. App. 2002). Almost total deference to the trial court's application of the law to the facts is accorded if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). If the resolution of the ultimate questions turns on an application of legal standards, the determination is reviewed de novo. Id. 25

33 Appellant s contention that Appellant was not aware of the alleged absolute risk of deportation is again premised upon the underlying factual assumption that Ms. Ohan did not tell Appellant about any absolute deportation risk stemming from a no contest plea. That is, in order for Appellant s third point of error claim to make any sense (that Appellant was unaware of the alleged absolute deportation risk), Appellant must have already established that Ms. Ohan had not made him aware of any absolute deportation risk by telling him about it. But, the trial court found to the contrary: Court accepts as true Ohan s assertion that she advised Appellant he would be deported. (CR: 7). There was plentiful evidence in the record from Ms. Ohan to support the trial court s finding of fact. (RR5: 19, 32). The factual determination required an evaluation of Ms. Ohan s credibility and demeanor. See Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). Consequently, and as explained in the second point of error application section above, an abuse of discretion standard applies such that the trial court s factual determination should not be disturbed on this appeal. See id. The trial court also found as follows regarding the written deportation admonishments in Appellant s signed plea papers: That finding [that Ms. Ohan advised Appellant he would be deported], plus recitation in plea papers regarding possibility of deportation leads court to conclude that Appellant was properly advised as to consequences of plea in regards to deportation or its possibility. (CR: 7). Appellant, without citing a single case or authority to reinforce his proposition, argues that the written plea admonishments were confusing and insufficient under Padilla v. Kentucky, 26

34 130 S. Ct (U.S. 2010). (Appellant s Brief: 20). However, whether the written plea admonishments were or were not sufficient is a moot issue given that the trial court affirmatively found that Ms. Ohan had properly informed Appellant of the deportation consequences, thereby firmly establishing that Appellant was aware of any absolute risk of deportation. Even assuming arguendo that Ms. Ohan had been completely silent with respect to possible deportation consequences, the Court should find that the written plea paper admonishments were sufficient. Texas Code of Criminal Procedure article allows for written admonishments; such written admonishments were given to Appellant by the trial court; and the court received a statement signed by the defendant and Ms. Ohan that he understood the admonishments and was aware of the consequences of his plea. The plea paper admonishments regarding deportation consequences tracked Article 26.13(a)(4) verbatim with the exception of an additional phrase italicized and emboldened herein: If you are not a citizen of the United States, a plea of guilty or nolo contendere may, and under current Federal Immigration rules is almost certain to, result in your deportation, removal, exclusion from admission to the United States, or denial of naturalization. (CR: 37, 38). Appellant s entire argument regarding deportation consequences is founded on the notion that deportation absolutely will result from a no contest plea to Appellant s charged crime, yet the additional language in the trial court s written admonishments actually goes farther toward protecting Appellant than the more nebulous and speculative wording of Article 26.13(a)(4) alone. 27

35 Appellant seems to assert that Padilla now requires more definitive language about the alleged absolute risk of deportation than what is currently provided in Article 26.13(a)(4). Appellant presents not a single case to buttress this contention, and Appellant does not explain how almost certain to strays too far from, or is somehow misleading in comparison to, a hypothetically even more direct and definitive Padillacompliant admonishment. Nor, it must be noted, does Appellant draft what a Padillacompliant written admonishment would consist of in this context. Ultimately, the written plea paper admonishments in the case at bar substantially complied with Padilla and Article 26.13(a)(4) (in fact, improved upon it). See TEX. CODE CRIM. PROC. art 26.13(c); Estrada, 981 S.W.2d at 70. Given this substantial compliance and Appellant s failure to both affirmatively show that he was not aware of the consequences of his plea and that he was misled or harmed by the written admonishment of the trial court, this Court should find that Appellant was indeed aware of the deportation consequences and that his no contest plea was voluntary. Appellant s third point of error should be overruled. For all the aforementioned reasons and in accord with all the legal authority cited in conjunction therewith, Appellant s multiple points of error should be overruled. 28

36 CONCLUSION AND PRAYER Since the trial court did not abuse its discretion in finding that it had already taken Appellant s no contest plea under advisement at the time Appellant first attempted to withdraw his plea, and Appellant s plea was otherwise knowing and voluntary, especially in connection with the deportation consequences of a no contest plea; the State prays that the trial court s judgment be affirmed in its entirety. Respectfully submitted, CRAIG WATKINS, Criminal District Attorney Dallas County, Texas BRADFORD CLEMENTS, Assistant Criminal District Attorney, 133 N. Riverfront Blvd., LB 19 Dallas, Texas (214) ; FAX (214) State Bar No