Defender

SAN ANTONIO

VOL. XVIII ISS. I | JANUARY 2017

DEFENDER REPRESENTING ASKING FOR AN EXPERT WHEN YOUR CLIENT IS NOT A U.S. CITIZEN

YOUR NON-CITIZEN CLIENTS

PADILLA V. KENTUCKY: SIX YEARS LATER

SACDLA ET CETERA

HOME RUNS! DEFENDING NON-CITIZEN CLIENTS: WHAT EVERY DEFENSE ATTORNEY NEEDS TO KNOW TO PROTECT THEIR CLIENTS

SACDLA OFFICERS Michael McCrum

Loraine Efron

Trisha Morales Padia

President

Secretary

Editor-in-Chief, DEFENDER

Don Flanary

Loraine Efron

Jennifer Zarka

Vice President

Treasurer

Executive Director

Steven Barnett

John Hunter

Jodi Soyars

Adrian Flores

Pat Montgomery

Robin Teague

John Fox

Angela Moore

Chad Van Brunt

Roland Garcia

RC Pate

Arlene Gay

Tiffany Shockley

EDITOR-IN-CHIEF Trisha Morales Padia

ASSOCIATE EDITORS

If you would like to submit an article to be considered for publication in The Defender, or see about how you can help or become involved with and contribute as an Associate Editor, please email Padia.Trisha@gmail.com.

BOARD OF DIRECTORS Robert Barrera

Justin Fischer

Angela Moore

Philip Bozzo

John Fox

Kristen Mulliner

Deborah Burke

Ray Fuchs

Miguel Najera

Anne Burnham

Roland J. Garcia

Trisha Morales Padia

John Carroll

Paul Goeke

Joel Perez

Andrew del Cueto

Juan Carlos Hernandez

Christopher Simpkins

Christine Del Prado

John Hunter

Robin Teague

Mario Del Prado

Blakely Mohr

Chad Van Brunt

Joseph Esparza

Pat Montgomery

Michael Young

DIRECTORS EMERITUS Charles Butts (Deceased)

Anthony Nicholas (Deceased)

PAST PRESIDENTS Patricia Jay

John “Bud” Ritenour

Ernest Acevedo, III

Warren Wolf

Adam Kobs

Ronald P. Guyer

Robert Featherston

George Taylor

Mark Stevens

Jorge Aristotelidis

Stephanie Stevens

George Scharmen

Jay Norton

Jim Greenfeld

Cynthia Hujar-Orr

Michael Gross

Michael S. Raign

Jeff Mulliner

John A. Convery

SAN ANTONIO

DEFENDER 06

LETTER FROM THE PRESIDENT

09 10

NEW SACDLA MEMBERS

Michael McCrum

ASKING FOR AN EXPERT WHEN YOUR CLIENT IS NOT A U.S. CITIZEN Arlene M. Gay

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EX PARTE SEALED MOTION TO APPOINT AN EXPERT

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DEFENDING NON-CITIZEN CLIENTS: WHAT EVERY DEFENSE ATTORNEY NEEDS TO KNOW TO PROTECT THEIR CLIENTS

Arlene M. Gay

Robert A. Jimenez

The San Antonio Criminal Defense Lawyers Association P.O. Box 831 206, San Antonio, Texas 78283 210.501.2916 | sacdla.com

26 33 35 38

PADILLA V. KENTUCKY: SIX YEARS LATER. Jorge G. Aristotelidis

HOME RUNS! Pat Montgomery

SACDLA ET CETERA Pat Montgomery

CASE LAW UPDATE Tiffany Shockley

Letter From the President Michael McCrum

God speaks to each of us as he makes us, then walks with us silently out of the night.

These are the words we dimly hear: You, sent out beyond your recall, go to the limits of your longing.

Embody me. )ODUH XS OLNH D ćDPH and make big shadows I can move in.

Let everything happen to you: beauty and terror. Just keep JRLQJ 1R IHHOLQJ LV ĆQDO Don’t let yourself lose me.

Nearby is the country they call life.

You will know it by its seriousness.

Give me your hand.

By any measure, this is probably an odd way to begin a “President’s Message�.

It is my thought, however, that this poem by poet and novelist Rainer Maria Rilke captures well what I believe is our experience as criminal defense attorneys. Whether or not you are a believer, or spiritual, or whatever word best describes that condition,

I do believe that in choosing to represent people accused, we have been “sent out beyond our recall ... to the limits of our society’s longing.� Our world continues to be difĆFXOW RXU V\VWHP RI MXVWLFH in many respects, remains broken. Yet, at our community’s core ... indeed at the core of each and every one of us ... we want justice, and mercy, and fairness and goodness. In standing strong against the winds of oppression, we who have been called to defend in this arena called criminal justice, want to know we are making a difference for good.

CALL FOR SUBMISSIONS The San Antonio Defender is always looking for content that serves to inspire, educate and excite our membership. If you would like to contribute, please contact a member of the Defender staff.

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And we are!

But there is more work to be done. 2017 is now upon us, and our call continues. There are still walls of oppression that are to be overcome. Still swirls of cynicism and bias WKDW SODJXH RXU FRXUWURRPV still laws and procedures and government conduct that scream to be revisited and/ or challenged. In that context, I feel greatly privileged to begin service as president of this great body. I succeed the outstanding service of Patricia Jay. Through her leadership and work, our tax VLWXDWLRQ DQG QRQ SURĆW VWDWXV KDYH EHHQ VROLGLĆHG our Defender magazine has been revamped and put back RQ WUDFN DQG RXU RUJDQL]Dtion has sent a strong message to various components of the criminal justice system that we are serious about protecting the integrity of this process we call justice.

PJ’s message was unmistakable: we will stand strong to defend our members and those we represent! Thank you, PJ, for a job well done!

We begin 2017 with a fantastic group who comprise our Board of Directors, our RIĆFHUV DQG WKRVH ZKR actively serve on committees.

Even if you are not a Board member, I encourage you to visit our quarterly meetings WR VHH ĆUVW KDQG WKH HDUQHVWQHVV RI IXOĆOOLQJ RXU PLVVLRQ I encourage you to actively join the effort. Frankly, before I began to serve, it was not something that I ever was interested in doing. In my 31+ years of practicing law, I was historically one of those lawyers who just didn’t see WKH EHQHĆW LQ SDUWLFLSDWLQJ in Bar organizations or functions. I was doing my thing, and Bar stuff just appeared largely to be a social exercise.

Recently, a good lawyer was

bold enough to question why one should be a member of SACDLA. It was a good question, actually. One which I all too often had rhetorically asked in my career. But having now been active in SACDLA, and witnessing the integrity with which warriors valiantly and tirelessly struggle to improve our system RI MXVWLFH ZKR FROOHFWLYHO\ join their skills, experience, time and wisdom to address needs of our members and FOLHQWV DQG ZKR DFWXDOO\ GR something together about the injustice that they witness, I have become a believer. All of you as members of SACDLA should be proud of your work and spirit. We are making history as each day passes, and our community and the individuals we serve are the better for it. Heck, we are the better for it!

So, in going forward this year, , HQFRXUDJH DOO RI XV WR êćDUH

7

XS OLNH D ćDPH DQG PDNH ELJ shadows� for our common cause. Our call is to move forward in strength and integrity to help make our justice system more just.

While it is undoubtedly true that we will continue to see “beauty and terror� each day, , DP FRQĆGHQW ZH LQGLYLGXally and as the SACDLA, will “keep going� with persever-

8

ance and fortitude, for the “seriousness� of the situation cries out for it. Hand in hand, I am honored to walk forward with you.

See you in court, Mike

Welcome New SACDLA Members Douglas Kappmeyer

Brandon Prater

Leticia Luna

Joe Stenberg

John Pinckney

9

ASKING FOR AN EXPERT WHEN YOUR CLIENT IS NOT A U.S. CITIZEN Arlene M. Gay

O

nce you have determined that your client is not a U.S. Citizen, what next?

Best practice is to advise your client to seek advice from an immigration attorney. But your client is indigent and you are his court appointed attorney. You can request funds from your Judge to hire an expert in immigration.

I recently approached a Judge and requested the appointment of an immigration attorney as a consulting expert. The Judge stated that no attorney had ever made such a request to her. I explained that without the advice of an immigration expert, I could not effectively represent my client in plea bargain negotiations or assist my client in the determination to proceed to trial. The Judge granted the motion without hesitation.

I have attached a motion that I have used (see next page). If you have a retained client that has become indigent during the pendency of the case, you can still seek funds from the Judge for an immigration expert. You may KDYH WR DWWDFK DQ DIĆGDYLW UHJDUGLQJ \RXU client’s indigence. See Texas Rules of Civil Procedure Rule 145 for some guidance on what WR LQFOXGH LQ \RXU FOLHQWèV DIĆGDYLW You now have the signed order appointing the expert. What next? Find the immigration expert. It is important to develop a relationship with an immigration attorney who also has knowledge of the criminal justice system and

criminal law. This is important since an attorney lacking such knowledge may not be able to fully adivise the client of the consequences of a plea in a criminal case. I had an experience where the immigration attorney told my client “well just have your lawyer get the case dismissed” as a solution to his problems. The client, having been told this, now thinks his case should be dismissed. This type of an opinion is not helpful to the client or the attorney.

Work with your expert. Provide offense reports, the indictment or information, and other relevant information to the expert prior to the expert meeting with the client. If there has been an offer by the State, let the expert know. I usually will contact the expert and discuss the evidence and any plea bargaining that has occurred. Perhaps a plea bargain can be crafted that helps the client increase the chances of a favorable outcome to his immigration issues. I have approached prosecutors and discussed alternative plea bargains because of the client’s immigration issues.

I have found that there are prosecutors who will work with you and your client. In the end, it is about getting the best results for your client, which means getting an immigration expert on your team.

Arlene M. Gay

11

NO. STATE OF TEXAS vs.

CLIENT

§ § § § §

IN THE DISTRICT COURT 99TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

EX PARTE - SEALED MOTION TO APPOINT AN EXPERT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, Attorney, attorney of record for Client, defendant in the above styled and QXPEHUHG FDXVH DQG ¿OHV WKLV PRWLRQ IRU DSSRLQWPHQW RI DQG DXWKRUL]DWLRQ RI IXQGV IRU DQ H[SHUW LQ WKH ¿HOG RI ,PPLJUDWLRQ DQG LQ VXSSRUW WKHUHRI ZRXOG UHVSHFWIXOO\ VKRZ DV IROORZV I.

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NO. STATE OF TEXAS vs.

CLIENT

ยง ยง ยง ยง ยง

IN THE DISTRICT COURT 99TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

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The San Antonio Criminal Defense Lawyers Association P.O. Box 831206 San Antonio, Texas 78283-1206 Telephone: (210) 501-2916 Facsimile: (210) 885-7714

MEMBERSHIP APPLICATION *NAME:

Mr.

Mrs.

Dr.

Professor

Other

_________________________________________________________________________________________ First Name Last Name MI MAILING ADDRESS: _____________________________________________________________________ Street Address/Suite Nbr./PO Box _________________________________________________________________________________________ City State ZIP County TELEPHONE: ___________________________

FAX: _________________________________________

*EMAIL ADDRESS: _______________________________________________________________________ *TEXAS BAR CARD NO.: ________________________ DATE OF BIRTH: _________________________ &HUWLÀHG &ULPLQDO /DZ 6SHFLDOLVW"

YES

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NO

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CATEGORY OF MEMBERSHIP: Contributing ($150 per year)

St. Mary’s Law Student / First Year Lawyer ($30)

Regular ($75 per year)

St. Mary’s Crim. Law Assn. ($0, Volunteer 5 hours)

(Attorneys:) I am a member in good standing of the State Bar of Texas. I am actively engaged in the defense of criminal cases in the State, County or Municipal Courts in Bexar County or the surrounding contiguous Counties, or in the Federal Courts of the Western District of Texas. I do not hold a full time or elected Judicial or Prosecutorial Position. *SIGNATURE: _____________________________________________ DATE: ________________ PLEASE MAIL APPLICATION TO: SACDLA, P.O. Box 831206, San Antonio, Texas 78283-1206 5HTXLUHG ,QIRUPDWLRQ %DU &DUG 1R QRW UHTXLUHG IRU VWXGHQW PHPEHUVKLS DSSOLFDWLRQ

15

DEFENDING NON-CITIZEN CLIENTS: WHAT EVERY DEFENSE ATTORNEY NEEDS TO KNOW TO PROTECT THEIR CLIENTS Robert A. Jimenez

16

S

ix years after the Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), criminal defense attorneys are still grappling with when, if ever, the immigration consequences of a conviction are clear and straightforward.

Properly advising non-citizen defendants requires defense counsel to not only strive for the best possible resolution to the criminal case, but to search for a result that also avoids or minimizes the possibility of deporWDWLRQ 6RPHWLPHV WKHVH HQGV DUH LQ FRQćLFW and getting a “great deal” isn’t always the best resolution for a non-citizen. In this practice advisory, I will provide an outline of the basics about immigration law that every criminal defense attorney should consider when attempting to comply with Padilla.

1. You Must Do the Research In Ex Parte Torres, 483 S.W. 3d 35, (Tex. Crim. App. 2016), the Texas Court of Criminal Appeals attempted to explain the requirements of advising defendants of the “truly clear” immigration consequences of criminal convictions. The Court in Torres found defense counsel ineffective for IDLOLQJ WR H[SODLQ LQ VXIĆFLHQW GHWDLO that the defendant was not just deportable, but that his removal was a “virtual legal certainty”. The Court went on to hold that while “counsel cannot always accurately predict the future as to whether a particular individual will, in fact, ultimately be deported, predicting the future

is not what Padilla requires … We, therefore, agree with the observation made by the court of appeals that counsel’s constitutional duty to inform his client that his [client’s] removal is a virtual legal certainty does not wane merely because counsel believes the probability of actual removal is uncertain[.]” Id. at 45.

Torres is mandatory reading before you accept your next non-citizen client.

If you are willingly representing noncitizen clients, you must be prepared to investigate and research immigration consequences. It does not matter that you “are not an immigration attorney” or that you “only do criminal law”. If you are going to accept non-citizen clients, you are signing up to do some immigration law. If you are unwilling to fully delve into this area of law, there is a simple solution: do not represent noncitizens. In a perfect world, your client is always going to have the funds to hire independent immigration counsel and be responsible enough to make sure that they hire FRXQVHO ZLWK VXIĆFLHQW WLPH WR EH properly advised. But, like it or not, many of our clients are our clients because being responsible is a quality they don’t always have. Other times, they simply don’t have the funds to hire an immigration expert.

And thus, despite your advice to hire outside counsel, your clients are

17

often going to come back not having done so. In those situations the obligation to provide clear and succinct immigration advice will fall squarely on your shoulders. I have seen countless transcripts where, during the plea colloquy, the defense attorney advises the judge that despite a recommendation to the client to seek immigration counsel, the defendant had not done so but still wished to proceed with the plea. Further, the defense attorney failed to conduct even the slightest research on the matter. This is a direct violation of the duties imposed under Padilla.

Admittedly, Texas appellate courts DUH TXLFN WR ĆQG WKDW D FOLHQW FDQ waive their Constitutional rights, even the right to effective assistance of counsel. Make no mistake, that is exactly what the client is waiving if they tell you they wish to proceed without immigration advice. A client who says they want to proceed without having immigration consequences explained to them is requesting that you, the attorney, render ineffective assistance of counsel. Do not be complicit in rendering ineffective assistance. I would hope that each of us aspire to be the most effective advocate that we can be for our clients, and that includes investigating and researching immigration law for non-citizen clients.

There is another critical issue that demands that defense counsel

18

educate themselves on the immigration law surrounding a defendant’s criminal case that goes beyond explaining the immigration consequences. The Supreme Court’s decisions in /DćHU Y &RRSHU, 562 U.S. 1127, 131 S. Ct. 856 (2011) and Missouri v. Frye, 562 U.S. 1128, 131 S. Ct. 856 (2011), held that defense counsel’s obligations to render effective assistance of counsel in the plea bargaining stage can be violated if they cause a favorable plea bargain to be rejected or lapse. It is not a big leap to include failure to explore certain plea bargains, especially in light of Justice Kennedy’s opinion, “In today’s criminal justice system ... the negotiation of a plea bargain rather than the unfolding of a trial, is almost always the critical point for a defendant.” Frye, 132 S.Ct. at 1408.

The holdings of Padilla, /DćHU, and Frye can reasonably stand for the proposition that a defense attorney has an obligation to investigate and at least attempt to negotiate a plea bargain that could lessen the possibility of deportation. In order to do so, counsel must possess a fundamental understanding of the immigration consequences of the defendant’s charge, and be aware of potential safe-harbor alternatives. Therefore, even if a non-citizen defendant decided that they did not want to be advised of the possible immigration consequences of a plea, defense counsel should nonetheless under-

stand those consequences so they may effectively plea bargain for their client.

2. Know Your Client’s Immigration Status and Prior Criminal History The immigration consequences of a conviction vary based on your individual client’s immigration status. If you do not know your client’s status, you will be unable to correctly advise your client about possible immigration consequences of a conviction.

First, is your client lawfully present in the United States? Undocumented defendants are almost always subject to removal. In these cases, your focus should be on whether the criminal conviction will disqualify your client from seeking relief before an immigration judge.

If your client is lawfully present in the United States (e.g., a lawful permanent resident), then you must research whether the potential conviction will result in your client’s removal from the United States.

In order to analyze whether your client will be removed from the United States, you should delve into the details of their immigration history. For example, the amount of time they have resided in the United 6WDWHV WKHLU IDPLO\ WLHV DQG WKHLU

prior criminal history, are crucial factors in determining their ability to defend against a removal order.

3. There is a Difference Between Removable and Inadmissible These are terms of art that have important distinctions. Removable refers to a ground for which a noncitizen can be placed into removal proceedings inside the United States.

Inadmissible refers to a non-citizen’s ability to be readmitted to the United States following a trip abroad or be approved for permanent residence.

Just because a crime doesn’t make a non-citizen removable does not mean it doesn’t make them inadmissible. Why is this important? If you have LPR clients who are convicted of offenses that do not render them deportable or removable, but do make them inadmissible, you should clearly explain that if they leave the country they may not be able to return. Additionally, inadmissibility applies to those seeking to become residents. If you have a client applying for status, being inadmissible can lead to them being denied residency Many clients believe, and many defense attorneys do as well, that once deportation has been averted, the client can go back to life as usual.

This is not true and the conviction can still result in the penalty of being

19

unable to enter the United States after travelling abroad. A list of offenses that can make a non-citizen inadmissible can be found in 8 U.S.C § 1182.

DQ DUWLFOH XQWR LWVHOI VR VXIĆFH LW WR say, if in doubt, get help from an immigration expert.

5. Know How Deferred Adjudication is Helpful (and How It’s Not)

4. Crimes Involving Moral Turpitude Crimes involving Moral Turpitude (CIMTs) trigger grounds of both deportability and inadmissibility.

CIMT “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.�

Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001), quoting Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988). Offenses with an element of fraud, theft with intent to permanently deprive the owner of propHUW\ LQWHQW WR LQćLFW VHULRXV ERGLO\ injury, as well as some reckless or malicious offenses and offenses with lewd intent can qualify as CIMTs. As noted in the preceding section, a single conviction for a CIMT can make a non-citizen inadmissible.

There are exemptions and a waiver for such situations but if your client has multiple convictions for CIMTs these waivers will not apply and your client may be subject to both removability and inadmissibility. Explaining the concept of CIMTs would require

20

Deferred adjudication is always a conviction for immigration purposes.

However, it’s not always totally useless in the immigration context. Some grounds of removal require a certain sentence to accompany the conviction in order to trigger deportation.

Because a sentence of deferred adjudication does not impose a term of incarceration deferred probation can avoid triggering removal proceedings in those scenarios. Counsel should carefully review the grounds of removal to determine if a deferred adjudication is helpful in a particular case.

6. Understand Relief from Removal Removal proceedings are typically ELIXUFDWHG ,Q WKH ĆUVW VWDJH RI WKH proceeding, the immigration judge will determine whether the individual is subject to removal. If so, in the second stage the immigration judge will consider whether the cliHQW TXDOLĆHV IRU DQ\ IRUP RI UHOLHI from removal. It is critical for criminal defense counsel to understand that criminal convictions affect both

stages. Your client can be subjected to removal based on a conviction and the same conviction may also disqualify your client from relief from removal. In other situations, a conviction might subject your clients, but not disqualify them from seeking relief. The latter is sometimes fertile grounds for a plea deal.

Padilla requires counsel to consider how a conviction will affect both stages of the proceedings. As Justice Stevens wrote in Padilla, “[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence. Likewise, we have recognized that preserving the possibility of discretionary relief from deportation ... would have been RQH RI WKH SULQFLSDO EHQHĆWV VRXJKW by defendants deciding whether to accept a plea offer or instead to proceed to trial. We expected that counsel who were unaware of the discretionary relief measures would follo[w] the advice of numerous practice guides to advise themselves of the importance of this particular form of discretionary relief.” Padilla at 368, 1483 (internal citations and quotations omitted).

There are many types of relief available in removal proceedings and each have other non-criminal conviction based requirements that defense counsel should understand.

For example, to qualify for cancellation of removal as a lawful permanent resident, non-citizens must KDYH EHHQ /35V IRU PRUH WKDQ ĆYH years, with seven years of continuous presence in the United States, and not been convicted of an aggravated felony. Non-LPRs can also qualify for cancellation, but determining their eligibility requires an analysis too complex to discuss ZLWKLQ FRQĆQHV RI WKLV DUWLFOH ,W LV important to touch upon nonetheless because every defense attorney should be aware that even non-citizens without any kind of documentation can qualify for relief from deportation. Since determining eligibility for relief is beyond the scope of this article, it is perhaps more important to determine which crimes will lead to a removal proceeding and which ones will prevent non-citizens from applying for relief.

7. Know Which Statutes to Review Reviewing the appropriate statutes will provide you with the resources to not only advise your client about immigration consequences but will also arm you with the knowledge necessary to creatively craft plea bargains that avoid or minimize the possibility of removal. Pay close atWHQWLRQ WR WKH VSHFLĆF ODQJXDJH LQ WKH VWDWXWHV HYHQ PLQRU FKDQJHV WR a judgment or sentence can have a

21

PDMRU EHQHĆW IRU \RXU FOLHQW a. Deportable Offenses: 8 U.S.C. 1227 Offenses on this list will certainly result in a removal proceeding but may leave open the possibility for relief. Drug offenses, ĆUHDUP RIIHQVHV IDPLO\ YLROHQFH RIfenses, crimes against children, and crimes involving moral turpitude, are among the more common grounds for removal you will come across in representing non-citizen clients.

Understanding the exact grounds for removal is crucial to your ability WR ĆQG D ZD\ WR DYRLG WULJJHULQJ D deportation proceeding.

For example, any non-citizen convicted of a crime involving moral turSLWXGH FRPPLWWHG ZLWKLQ ĆYH \HDUV (or 10 years in some cases) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. This is one of the areas where a sentence of deferred adjuGLFDWLRQ LV EHQHĆFLDO IRU QRQ FLWL]HQ defendants regardless of its status as a conviction. Because deferred adjudication does not impose a sentence of imprisonment it would not trigger this ground of removability. A caveat: multiple CIMTs trigger a separate ground of removability, regardless of the sentence imposed.

This is a critical example of why it is

22

important to know your client’s prior criminal history when assessing possible immigration consequences. b. Aggravated Felonies: 8 U.S.C. 1101(a)(43) Crimes in this category will preclude a non-citizen from applying for many forms of relief, leaving their deportation a near certainty (there are extraordinary relief options available, such as asylum, the Convention Against Torture, and Withholding of Removal, that may be available, but these are statutory forms of relief, not discretionary, and as such, are inapplicable in many cases). Murder, rape, and sexual abuse of a minor are on this list, as well as theft or burglary for which the punishment was imprisonment of at least one \HDU GUXJ WUDIĆFNLQJ DQG EDLO MXPSing. Should your client be charged with an offense in this list, you must advise them that not only are they removable, but also that such a conviction will preclude them for applying for the normal forms of relief.

Review this section carefully when researching your client’s case. $QRWKHU H[DPSOH 'UXJ WUDIĆFNLQJ offenses are aggravated felonies. +RZHYHU VWULNLQJ WKH WUDIĆFNLQJ RU delivery element from the judgment can help maintain your client’s ability to seek relief in an immigration proceeding. While your client will

still face a deportation proceeding, \RX PD\ KDYH JLYHQ WKHP D ĆJKWing chance to remain in the United States. It bears noting that sometimes you aren’t going to be able to save your client from suffering some immigration consequences. But by knowing how to minimize them, you maximize their opportunities to ultimately avoid removal. That in and of itself can be a victory.

8. Don’t Soften the Blow It is crucial to avoid the temptation to soften the blow of anxiety and fear that may rightly accompany a non-citizen defendant’s decision to plead guilty. I have seen cases where defense counsel gave their client the right immigration advice, but then, for whatever reason, couched an advisal of “you are deportableâ€? with phrases like “it’s just a minor offense VR PD\EH \RX ZRQèW JHW GHSRUWHGĂŤ or “you’ve been here so long, they may decide not to deport youâ€?. These attempts to reassure defendants that things may not be as bleak as they seem are well-intentioned, but can mislead a client into thinking that their conviction may not lead to UHPRYDO DQG LQćXHQFH WKHLU GHFLVLRQ to plead guilty. A defendant who is on the fence about accepting a plea, may ultimately do so with the understanding that he may still avoid

removal, when in fact his removal is a virtual certainty. Leave your clients with the facts, and resist the urge to speculate about what may or may not happen.

9. Ask the Court for Help Due to the complex nature of both immigration law and your client’s VSHFLĆF FLUFXPVWDQFHV \RX PD\ QRW be able to provide the counsel that Padilla requires. And that’s okay. It’s okay not know the answer, it’s not RND\ QRW JHW KHOS LQ ĆQGLQJ LW 7KH easiest solution is to convince your client to hire independent immigration counsel. For indigent defendants who cannot afford to hire outside counsel prepare an Ake motion petitioning the court for funds to hire an immigration expert. Just like receiving funds for court-appointed investigators and other experts, in certain cases, having the court allot funds for immigration counsel is an appropriate request in light of Padilla’s mandate.

When seeking the help of immigration counsel, remember to allot enough time for them properly investigate and advise your client.

Many a client, and some attorneys, have called immigration experts the morning of a plea to determine if it is acceptable or not. No good immigration attorney is going to feel good

23

about giving advice under those circumstances. Stress to your client that it is not enough to simply consult with an attorney, but to hire one and obtain an immigration consequences letter, commonly called a Padilla letter. You should review the letter with your client, make sure they understand its contents and ĆOH D FRS\ ZLWK WKH FRXUW $OVR PDNH sure any advisal letter is provided not only in English, but also in your client’s native language. Having a Padilla letter in a language your client does not understand is of little use in making sure they understand the UDPLĆFDWLRQV RI WKHLU FULPLQDO FDVH

removal. Every case will have its own calculus to perform and the critical thing to remember is to let the client decide what is most important and what they want to do. Give them all the facts necessary for them to make an informed and complete decision about their case.

Sometimes, this is going to require you to try a bad case. A hopeless case. An impossible case. And you are going to have go out and put the State to their burden because you are the only thing standing between your client and deportation.

11. Make the Record Clear

10. Find Out What’s Most Important Once you have fully advised a client about the immigration conseTXHQFHV \RX PXVW ĆQG RXW ZKDW LV most important to them. Is the most important thing avoiding a harsh punishment? Is it avoiding removal?

You must know the answer to this question to fully advise them about WKH ULVNV DQG EHQHĆWV RI WKHLU RStions. If the client tells you that they want to do anything and everything to avoid removal, you may be forced to reject a “good� plea bargain because it would ultimately lead to removal. Likewise, you may sometimes be forced to give up a strong trial case, if you are offered a plea that would prevent a client’s

24

Once your client has made their decision, the best practice is to put all advice regarding immigration consequences on the record. With your advice a part of the record, you have done two things: demonstrated to the court that your client has received proper counsel regarding immigration consequences, and, protected yourself from future claims that you failed to provide counsel.

Defending non-citizens in the crimiQDO MXVWLFH V\VWHP LV D GLIĆFXOW WDVN It requires you to analyze cases in unconventional ways. It may require you to put in extra time or spend money out of pocket to get the proper advice. The specter of deportation

casts a long shadow over the noncitizen defendant, and it can haunt not only them, but their loved ones as well, for the rest of their lives. You will be the best line of defense for avoiding deportation. Several years ago, I worked on a case where our client had not been informed that a plea to a drug offense would lead to his deportation. Thankfully, we were able to vacate the drug conviction and plead him to a separate misdemeanor offense, thereby leading to a termination of his deportation proceeding.

In the process of working on that case our client’s young daughter wrote a character letter on his behalf (see below). Its contents have served a constant reminder of why I do what I do, and why these cases are of the utmost importance.

Good Luck,

Robert A. Jimenez

HELLO MR. JUDGE, Honestly, I’ve been very sad since I found out my dad went to jail. I miss him a lot and I wish I could help but I’m just a kid. We used to be a very happy family, but ever since he’s been gone my family has been broken apart. I miss his goodnight kisses and his warm hugs. I loved it when he took me to school and stopped at a Mexican restaurant to buy me tacos. I didn’t get a chance to even say goodbye. I miss him a lot and it breaks my heart every time I think about him. He is a great father, and is very sorry for his mistakes. Me and my sister need him. I don’t know much about why he is in jail, but I do know for a fact that deep inside his apple core he is sorry. I really care about him and I want him back. Please I beg you give him a second opportunity. I love him with all my heart, sure he made a mistake, but who doesn’t. My dad has taught me to respect the elderly and to be kind. He has DOVR WDXJKW PH WR ĆJKW IRU ZKDW , ORYH , PD\EH MXVW D OLWWOH JLUO EXW , GR EHOLHYH WKDW RQH GD\ we would all be together again. And hopefully you give him that opportunity.

I’ll be waiting for him by the door. Thank you for listening to me.

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PADILLA V. KENTUCKY: SIX YEARS LATER Jorge G. Aristotelidis

I

t’s been more than six years since the United States SuSUHPH &RXUW ĆUVW UHFRJQL]HG a lawyer’s Sixth Amendment obligation to render proper advice to their non-citizen clients about the immigration consequences of a guilty plea, in Padilla v. Kentucky, 559 U.S. 356 (2010).

As occurs with most cases that descend from the highest court in the land, state precedent develops to properly mold that holding, though not infrequently in a manner that fails to honor it. Some important Padilla-based precedent has developed in Texas. This article will discuss several Texas rulings that should give a clearer account of the state of the law under Padilla for the criminal practitioner.

Included is a long-overdue opinion by the Texas Court of Criminal Appeals in Ex Parte Torres, which represents the ĆUVW WUXH UHYLHZ E\ WKH &RXUW of a Padilla-based writ that fully and properly tackles and explains:

1. the clarity of the advice that counsel must give when the immigration consequences of a plea involve automatic GHSRUWDWLRQ 2. the proper, mixed Strickland/Hill1 standard of review that is applicable to effective assistance claims in connection with a plea (versus a trial RQ WKH PHULWV DQG 3. a reminder that even when plea counsel is ineffective in failing to properly render immigration advice, habeas counsel must be PLQGIXO WR SUHVHQW VXIĆFLHQW facts to make a strong showing of prejudice to prove that, but for plea counsel’s erroneous immigration advice, the noncitizen defendant would have elected to proceed to trial.

One of the straightforward tenets in Padilla is the requirement that when the deportation consequences 1 See Strickland v. Washington, 8 6 Hill v.

Lockhart, 474 U.S. 52 (1985).

of a noncitizen plea are clear, advice by plea counsel about those consequences must be equally clear. See Padilla v.

Kentucky, 559 U.S. 356 at 369 (2010). The question whether a lawyer’s failure to advise has prejudiced a noncitizen client—which relates to the second prong under the Strickland v. Washington ineffective assistance test—was the focus of an opinion by the San Antonio Fourth Court of Appeals in Ex Parte Rodriguez, 378 S.W.3d 486 (Tex. App. San Antonio - 2012).

There, the Court held that plea counsel’s complete failure to advise his client that a plea to two misdemeanors that rendered Rodriguez deportable, yet eligible for discretionary relief, would SUHFOXGH D ĆQGLQJ RI SUHMXdice when during the plea colloquy, the trial court advised that the plea “may carry a risk of adverse immigration consequences.� Ex Parte Rodriguez, 378 S.W.3d at 496-97.

The Fourth Court’s holding that plea counsel’s failure to advice about immigration

27

consequences may be solved by a trial judge’s passing admonition that by pleading guilty, immigration trouble may ensue, is materially at odds with a basic underpinning in Padilla’s holding, that it is plea counsel’s Sixth Amendment obligation to ensure that, clear or not, a noncitizen defendant should always be made fully aware of the immigration consequences of a plea: 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, as it was in this case, the duty to give correct advice is equally clear.

Padilla at 369 (emphasis added). The Supreme Court commands that, “[w]hen attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.” Padilla at 370-71 (emphasis added). Similar reasoning to that in Rodriguez was ultimately reached, after a contentious back and forth,

28

by an en banc United States Court of Appeals for the Fifth Circuit. Innocent Rutahagara Batamula’s en banc resolution was highlighted by an angry yet erudite (typical for Justice James L. Dennis) dissent (also typical, unfortunately), who decried the majority’s implied holding that “a judicial admonition of possible deportation during a guiltyplea colloquy automatically erases any prejudice caused D GHIHQGDQW E\ WKH GHĆFLHQW performance of his counsel.”

United States v. Batamula, 823 F.3d 237, 243 (5th Cir. 2016) (en banc) (J. Dennis dissenting). Justice Dennis elaborates that by failing to explicitly acknowledge that “a judge’s admonition at the plea colloquy that deportation is ‘likely’ does not automatically ‘wipe clean’ any prejudice caused by counsel’s failure to advise his client of the immigration consequences of the guilty plea (citing United States v. Batamula, 788 F.3d 166, 173 (5th Cir. 2015)), the [en banc majority] has left the door open for other district courts to repeat the same mistake and, in doing so, has imperiled the Sixth Amendment rights of noncitizen defendants in our circuit.” Id. at 245. Like all

Texas opinions on the subject, the Batamula series should be read by criminal defense attorneys who represent noncitizens to better understand how a judge’s role in ensuring the voluntariness of the plea process is not a substitute for defense counsel’s separate constitutional obligations under Padilla. See Id. (explaining that “[i]n Missouri v. Frye, 132 S. Ct. 1399, 1406, 182 L. Ed. 2d 379 (2012), the Court made clear, as it did in Padilla, WKDW LW KDV ĆUPO\ êUHMHFWHG WKH argument ... that a knowing and voluntary plea supersedes errors by defense counsel.” See also /DćHU Y &RRSHU, 132 S. Ct. 1376, 1390, 182 L. Ed. 2d 398 (2012) (“An inquiry into whether the rejection of a plea is knowing and voluntary ... is not the correct means by which to address a claim of ineffective assistance RI FRXQVHO ë 6XIĆFH LW WR VD\ that the lesson to be learned from a lawyer’s failure to conduct the necessary research that is necessary to for them to discharge Padilla’s mandate is highlighted by the following decisions, in which a dereliction of duty by plea counsel resulted in plea reversals on the basis of ineffective assistance, where the deportation

consequences of the pleas turned out to be automatic.

Another opinion illustrates how despite successful efforts in proving that plea counsel was ineffective XQGHU WKH ĆUVW RI Strickland’s two ineffective assistance prongs, habeas counsel failed to prove prejudice under the second prong.

More than a year after it published Rodriguez, the Fourth Court properly held that simply warning that “deportation proceedings” will ensue, where deportation is not simply discretionary, but largely automatic, is not on par with proper admonishments under Padilla, writing: “… testimony established that appellant was not told [by his counsel that] he would be deported as a result of pleading no contest to a second possession of marijuana charge. Instead, appellant’s ð DWWRUQH\ WHVWLĆHG KH WROG appellant that his plea “was going to result in deportation proceedings.”

However, advising a criminal defendant that his plea will result in “deportation proceedings” is not the equivalent of advising the defendant

that his conviction will result in deportation. An attorney must inform a criminal defendant about the consequence of the proceeding, i.e., that deportation is mandatory, and not merely that a proceeding will occur. See Padilla, 559 U.S. at 368 (“terms of the relevant immigration statute are succinct, clear and exSOLFLW LQ GHĆQLQJ WKH UHPRYDO consequence of Padilla’s FRQYLFWLRQë Rodriguez, 378 S.W.3d at 492 (“deportation consequence is the outcome of the removal proceeding”).

Accordingly, because appellant’s … attorney did not tell appellant he would be deported, we conclude, as a matter of law, that appellant KDV VDWLVĆHG WKH ĆUVW SURQJ RI Strickland. See Ex parte Leal, 427 S.W.3d 455, 462 (Tex. App. San Antonio - 2014).

Leal’s holding has been recently validated by a more recent - and longoverdue - opinion from Texas’ high court of criminal jurisdiction.

In Ex parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016), a unanimous opinion authored

by Judge Elsa Alcala of the Texas Court of Criminal Appeals provided much needed FODULĆFDWLRQ RQ VHYHUDO LVVXHV

that have remained unresolved in Texas since Padilla’s publication. The Court identiĆHG WKH ODZ\HUèV PLVDGYLFH that was the subject of the ineffective assistance challenge to the plea: On cross-examination by habeas counsel, trial counsel acknowledged that he had never independently reviewed the Immigration and Nationality Act (INA) to determine whether the offenses to which appellant was pleading guilty were deportable offenses, and he further conceded that he did not know what constituted a deportable offense under the INA, other than what he had learned at legal seminars. Counsel acknowledged that, although he had advised appellant that he could be deported as a result of his guilty plea, he did not DIĆUPDWLYHO\ WHOO DSSHOODQW WKDW he would be deported because, in his experience, a person can sometimes plead guilty to an aggravated felony and never actually be deported.

Torres, at 40. Consistent with the holding in Leal, and on the basis that Torres’ deportation consequences “were ‘truly clear,’” a unanimous court concluded that “thus, counsel’s duty to advise appellant regarding those consequenc-

29

es was ‘equally clear,’� elaborating that “[plea c]ounsel, therefore, was obligated to inform appellant of the ‘presumptively mandatory’ immigration-law consequences of his plea that would make him ‘subject to automatic deportation.’� Torres, 483 S.W.3d at 45 (citing Padilla v. Kentucky, 559 U.S. 356 at 360, 369 (2010)).

But Torres DOVR FODULĆHG D lingering question about the proper prejudice analysis that must be applied under Strickland’s second prong, a topic referenced in an earlier decision, in a concurring effort by Chief Judge Sharon Keller.

Disagreeing with majority author Judge Cheryl Johnson’s conclusion that Velasquez failed to demonstrate prejudice “because the likelihood of conviction [at trial] was high,â€? Chief Judge Keller accurately pointed out that a “[l] ikelihood of conviction is not the traditional test for measuring prejudice from a guilty plea that is the result of an DWWRUQH\èV GHĆFLHQW FRQGXFW The usual test is ‘whether there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty to

30

the charged offense and would have insisted on going to trial.’� Ex parte VelasquezHernandez, No. WR-80,32501 at *5 (Tex. Crim. App. 2014) (not designated for publication) (citation omitted) (J. Keller, concurring). It was not, however, until this year that the Court in Torres ĆQDOO\ KHOG WKDW WKH SUHMXGLFH to be proven in the context of a plea was not the probability of an acquittal at a trial on the merits - as is required when evaluating ineffective assistance of counsel in a trial setting - but simply whether, but for counsel’s failure to render proper immigration advice, the noncitizen client would not have pled guilty.

Citing the Supreme Court in Hill v. Lockhart, 474 U.S. 52 (1985) the Chief Judge Keller explained: The Court [in Hill] stated that, in the context of an ineffectiveassistance claim as it relates to a defendant’s acceptance of a plea bargain and entry of a guilty plea, the relevant prejudice inquiry “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.� Id. at 59. It further explained, “In other words, in order to satisfy

the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.� Id. Torres, at 47 (emphasis added).

This holding rejects the posture (erroneously adopted by several Texas appellate courts prior to Torres) that a noncitizen defendant with little perceived chance to prevail at a trial on the merits cannot prove that he was prejudiced by his plea lawyer’s erroneous immigration advice during the plea process. It DOVR UHDIĆUPV WKH UHDOLW\ WKDW for many noncitizens, the probabilities of incarceration following a jury trial are often less onerous than the specter of removal from this country, a concept fully captured in Padilla, which recognized that “deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants ZKR SOHDG JXLOW\ WR VSHFLĆHG crimes.� Padilla, at 364.

Lastly, Torres stands as a reminder that the prejudice prong in the Strickland test is MXVW DV LPSRUWDQW DV WKH ĆUVW

Even if counsel is found to be ineffective for failing to properly advise about immigration consequences, counsel must not forget to make the necessary factual showing that but for the erroneous advice, the client would have elected to proceed to trial.

Several Texas appellate courts have recognized that the concern for deportation can often times outweigh a noncitizen’s fear of a prison term. But as Torres’ holding demonstrates, habeas counsel should be ever mindful of ensuring that the proper facts are presented to also support the prejudice prong of Strickland.

A long history of our Supreme Court’s jurisprudence has consistently recognized deportation as a particularly severe consequence. Padilla, at 365 (“We have long recognized that deportation is a particularly severe penalty, ĂŤ Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893) (“Every one knows that to be forcibly taken away from home and family and friends and business and property, ... is punishment, oftentimes most severe and FUXHO ĂŤ Ng Fung Ho v. White,

259 U.S. 276, 284 (1922) (“[Deportation] may result also in loss of both property and life, or of all that makes OLIH ZRUWK OLYLQJ ĂŤ Bridges v. Wixon, 326 U.S. 135, 164 (1945) (“The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence.

A deported alien may lose his family, his friends, and his livelihood forever. Return to his native land may result in poverty, persecution and HYHQ GHDWK ĂŤ Delgadillo v.

Carmichael, 332 U.S. 388, 391 (1947) (“Deportation can be the equivalent of banishment RU H[LOH ĂŤ I.N.S. v. St. Cyr, 533 U.S. 289, 322 (2001) (“Preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.â€?). As noted, it is worth repeating that in Padilla, the Supreme Court recognized that deportation can be the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty WR VSHFLĆHG FULPHV 7H[DV precedent has fully embraced this concept. See Leal at 463 (“considering the deportation [Leal faced] ‌ it would

have been rational for [Leal] to reject the second plea agreement had he known that entering the plea would result in mandatory deportation.�) (citing Padilla, 559 U.S. at 364 SUHYLRXV TXRWH

Salazar v.

State, 361 S.W.3d 99, 103 (Ct. App. Eastland – 2011) (“It would be perfectly rational to take the chance on acquittal at the risk of a maximum of two years state jail time and D ĆQH RI UDWKHU WKDQ enter a guilty plea that would result in certain deportation, separating [the defendant] from his family and the opportunities that come from being a legal resident of the United States.�).

Despite this precedent, the Texas Court of Criminal Appeals’ adverse resolution of Torres’ prejudice prong arguments are a stark reminder that counsel should not rest on the strength of this precedent when documenting and arguing their writ. The Court rejected the appellate court’s ĆQGLQJ RI SUHMXGLFH explaining: The trial court’s conclusion that relief should be denied is supported by the facts that appellant had confessed to two felony offenses; that his and his family’s

31

primary concern at the time of his arrest and plea was “getting him out of jail�; and that appellant disregarded counsel’s advice to seek counsel from an immigraWLRQ DWWRUQH\ IRU VSHFLĆF LQIRUmation about how his residency status would be impacted by his plea. Based on these facts, the record supports a conclusion that appellant did not place any special emphasis on avoiding deportation consequences as a result of his plea. Rather, on the contrary, the record makes it appear unlikely that, had appellant been correctly advised that he was subject to mandatory deportation, as opposed to the advice he received regarding a mere risk of deportation, the correct advice would have been the tipping point that would have caused him to reject the plea bargain and avail himself of a trial, thereby risking imprisonment and eventual deportation following a conviction at trial.

Torres, at 50-51. The Court concluded that “in view of the lack of any evidence from appellant as to how he was prejudiced and in the absence of any credible facts in the record showing that, but for counsel’s erroneous advice, appellant would have rationally decided to reject the plea bargain and instead

32

pursue a trial.� Id. at 51 (emphasis added). The Court reversed the appellate court’s granting of relief, and by doing so rejected a writ that could well have been successful, had proper attention been given to demonstrate that, in light of the penalty faced by Torres, his fear of deportation was so strong, that a decision to try his case in hopes of an even statistically improbable chance for an acquittal, would have been rational.

Criminal defense lawyers are a special breed within the legal profession. By and large, our ranks are fervently guided by the ideal of freedom.

But it is apparent that six years after Padilla’s holding, there remain some lawyers in our legal community who refuse to undertake the added responsibilities imposed by its holding. Unfortunately for them, the cases discussed in this article make it clear that the ineffective assistance process related to Padilla error is now well-documentHG DQG ĆUPO\ HVWDEOLVKHG precedent in Texas and in our federal circuit. There is no excuse for our colleagues to continue to fail to protect their noncitizen clients.

About the Author: Jorge G. Aristotelidis is ERDUG FHUWLĆHG in criminal law and criminal appellate law by the Texas Board of Legal specialization, and is a past president of SACDLA. He has given many presentations on the subject of Padilla’s mandate on criminal defense lawyers, and is considered a pioneer in the ĆHOG RI êFULPPLJUDWLRQÍ ODZ

HOME RUNS! Pat Montgomery

T

he Home Runs section of the SACDLA Defender celebrates the successes and good lawyering of our members. We can’t always list everybody’s victories here if we don’t know about them. If you know of somebody who has been left out, send us a notice.

When you see these winners in the Courthouse, strike up a conversation and offer kudos.

ADAM KOBS KLW D KRPH UXQ IRU \HDUV +LV VHOćHVV GHGLFDWLRQ WR PDNLQJ VXUH RXU PHPEHUVKLS receives accolades and recognition deserves our great appreciation. We hope the new author does half as good of a job.

CLEOPHUS MARSHALL won a highly publicized and highly contested murder trial in the 379th District Court.

JEFF and KRISTIN MULLINER also won a murder trial.

DON FLANARY and CASIE GOTRO pUHYDLOHG LQ D ĆYH FRXQW VH[ DVVDXOW FDVH LQ WKH th District Court.

GUILLERMO LARA won another DWI jury trial.

BEAU FIEGEL won another DWI jury trial.

33

GUILLERMO LARA and MATTHEW LARA worked together for victory in an Aggravated Kidnapping in the 175th District Court.

Former SACDLA President ROBERT FEATHERSTON’s client was Not Guilty of murder in the 290th District Court.

JOHN HUNTER and THOMAS LANE received a jury acquittal on a serious felony drug case in the 379th District Court.

ROBERT PORTER’s client beat a Continuous Sex Abuse of a Child case, after an hour of deliberation in the 144th District Court.

KRISTIN DOW and KIMBEL WARD won an Aggravated Assault with a Deadly Weapon, receiving a lesser included offense conviction and beating the settlement offer by seventeen years.

TODD McCRAY swayed the jury on his client’s heat of passion cheating spouse punishment issue, reducing the murder charge to manslaughter punishment.

ANDREW FROELICH hit the Not Guilty trifecta on a three count Habitual Offender indictment alleging Continuous Family Violence, Violation of a Protective Order, and Robbery.

LINDA CORLEY GLVTXDOLĆHG DQ HOHFWHG PLVGHPHDQRU MXGJH DIWHU D YROXQWDU\ UHFXVDO UHTXHVW was denied.

ADAM KOBS, former SACDLA President and former author of this column, beat a felony drug case in the 290th District Court.

TIM MOLINA claimed victory in an Aggravated Sexual Assault case in Comal County.

ROBERT VALDEZ and JAMES REEVES obtained an acquittal in a murder case in Medina County.

JOHN A. CONVERY and JULIE K. HASDORFF won acquittal in an Air Force General Court-martial relating to an allegation of child sexual contact.

BOBBY GEBBIA got a Not Guilty on a Possession of Marijuana, where the State could not prove that the plant was not low THC marijuana.

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SACDLA Et Cetera Pat Montgomery

T

he SACDLA Et Cetera, in the spirit of the late Judge Jerry Buchmeyer’s Texas Bar Journal column, is a light hearted look at the funny moments of practice. Our version shares funny moments in criminal practice in and around Bexar County. We are always seeking story submissions, so tell us about your moments of levity in the criminal courts.

7KLV ĆUVW FROXPQ RI 6$&'/$ (W &HWHUD LV D KXPRURXV ORRN DW WKH HVVHQWLDO QHHG WR SUHSDUH \RXU FOLHQW IRU the courtroom experience.

DON’T BE HELPFUL I was in jury trial for a Burglary of a Habitation. My client, a very slight frail woman, was DFFXVHG RI VWHDOLQJ D PLFURZDYH RYHQ IURP D WKLUG ćRRU DSDUWPHQW 6KH FODLPHG DOLEL , ZDV making ground against the detective in cross-examination. I wanted him to show the jury the large heavy bulky size of the microwave. He described it as small. The jury, prosecutor, and PD\EH HYHQ -XGJH 'RPLQJXH] VWDUWHG ODXJKLQJ , FRXOG QRW ĆJXUH RXW ZKDW ZDV VR IXQQ\ XQWLO my client poked my arm to get my attention, and continued to demonstrate, mime style, the exact dimensions of the microwave that she knew nothing about.

(continues...)

35

DON’T BE HELPFUL II My client was accused of Aggravated Robbery. The victim selected my client’s photograph from a mug shot, but there was no other evidence against him. My client believed it was PLVWDNHQ LGHQWLĆFDWLRQ -XGJH 0F'RQDOG VFKHGXOHG DQ LGHQWLĆFDWLRQ KHDULQJ 7KH YLFWLP ZDV late to court, and we were all waiting. Each time somebody would enter the courtroom, we ZRXOG DOO WXUQ DURXQG RQO\ WR VHH D FRXUW FOHUN SUREDWLRQ RIĆFHU DWWRUQH\ RU ERQGVPDQ 7KHQ as a woman came through the door, my client stood up, pointed at her, and proclaimed loudly and certainly “that’s her.�

NOT MY TYPE OF CASE The Defendant was already a convicted murderer. He was bench warranted from another state for trial upon a charge of murdering his wife here. During trial, he ordered me to privately pass D IROGHG QRWH WR WKH SURVHFXWRU DQG LQVLVWHG WKDW LI , GLG QRW GR VR WKHQ KH ZRXOG ĆUH PH DQG represent himself. After much argument and admonishment, he was unyielding, and demanding to talk to the judge. I asked the prosecutor to look at the note. She glanced at his short missive, and said “tell him I don’t date Defendants, especially when they are serving life sentences.�

NOTE THIS 7KURXJKRXW WULDO RQ WKH ĆUVW GHJUHH GUXJ FDVH WKH 'HIHQGDQW ZDV VFUDZOLQJ SDJH DIWHU SDJH RI notes, proposed questions, complaints, and doodles. The trial was lost and the Defendant was sentenced to imprisonment. All appeals were rejected. Later, on habeas, the Defendant alleged that he had never been advised about a plea bargain offer for probation. He claimed that had he known about the offer, he would have settled. I was very concerned, as I had never made a Reporter’s Record about the offer.

I was saved by his notes. Every few pages he would write, “F##k, I should have taken the probation.�

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WHO’S ON FIRST? , ZDV WU\LQJ WR GLVFUHGLW WKH ZLWQHVVèV LQ FRXUW LGHQWLĆFDWLRQ DV EHLQJ WDLQWHG E\ D SDVW SKRWR line-up. “Did you see the photo array?â€? “No.â€? “Do you remember meeting with the detective that night a looking at a photo array?â€? “No.â€? “You said earlier that you picked out a picture, but now you say you didn’t look at the photo array.â€? “I picked the Defendant’s picture. Who’s Ray, and what does he have to do with this?â€?

PAPERS PLEASE The Defendant entered a “cap� plea to a statutory rape. When in his late teens, he had fathered a child with a girl nearly four years younger. The case was discovered a couple years later, when VKH VRXJKW FKLOG VXSSRUW WKURXJK WKH $WWRUQH\ *HQHUDO RIĆFH +H ZDV QRZ WZHQW\ VRPHWKLQJ well employed, and living with his common law wife and their two children. His parents, grandparents, and coworkers also provided good support and testimony. The state’s cross examination of each witness did not detract from the defenses case. The guy made a mistake when he was a kid. Imprisonment as an adult wouldn’t help anybody. Probation was the only appropriate punishment.

When the parties’ presentations concluded, the judge asked just one question of the common law wife: “How old are you?�

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CASE LAW UPDATE Tiffany Shockley

SUPREME COURT OF THE UNITED STATES BETTERMAN V. MONTANA, 136 S.Ct. 1609 (May 19, 2016): Because the Sixth Amendment Speedy Trial Clause protects the presumptively innocent between accusation and conviction, it does not apply to a delay between conviction and sentencing.

BRAVO-FERNANDEZ V. UNITED STATES, 136 S.Ct. 1491 (Nov. 29, 2016): The issue preclusion component of the Double Jeopardy

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Clause does not bar the government from retrying defendants after a jury has returned irreconcilable verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency.

RI WUXVW DQG FRQĆGHQFH WR his employer when he gave inside information to a relative knowing that the relative would trade on the information. Salman inherited the duty when he received the FRQĆGHQWLDO LQIRUPDWLRQ IURP the relative.

SALMAN V. UNITED STATES, ___ S.Ct. ____ (Dec. 6, 2016):

SHAW V. UNITED STATES, ___ S.Ct. ____ (Dec. 12, 2016):

The Court upheld Salman’s insider trading conviction because the jury could have reasonably inferred that a WLSSHU UHFHLYHG D EHQHĆW IURP GLVFORVLQJ FRQĆGHQWLDO information to a relative.

The tipper breached his duty

Defendant was guilty of bank fraud under federal law even though he intended to cheat a bank depositor rather than the bank itself. The bank had property rights in the cheated person’s account because it could use the funds

as a source of loans to earn D SURĆW 7KH ODZ GRHV QRW UHTXLUH SURRI RI ĆQDQFLDO ORVV RU a showing that the defendant knew the bank had a property interest in the account.

FIFTH CIRCUIT COURT OF APPEALS UNITED STATES V. PIEDRAMORALES, No. 16-40476 (Dec. 13, 2016): The district court did not err in applying an eight-level aggravated felony enhancement to the instant, third conviction because PiedraMorales pled guilty twice to illegal reentry. Even though his prior cocaine possession convictions are no longer considered aggravated felonies under Lopez (549 U.S. 47), his pleas of guilty to illegal reentry were knowing and voluntary.

COURT OF CRIMINAL APPEALS EX PARTE WHITE, No. WR48,152-08 (Nov. 2, 2016): Evidence that would have changed only punishment

does not satisfy Article 11.073’s requirement that the new evidence show that the applicant “would not have been convicted.” A claim under 11.073 unambiguously requires the new evidence undermine the verdict or ĆQGLQJ RI JXLOW

STATE V. SCHUNIOR, No. PD-0526-15 (Nov. 2, 2016): The statute of limitations for aggravated assault is governed by Article 12.03(d), not Article 12.01(7), so defendant’s indictment was timebarred. The lesser-included offense with the greater limitations period does not control when the lesser-included offenses of the aggravated assault include both misdemeanor assault and a felony.

EX PARTE LEA, WR-82,86701 (Nov. 9, 2016): Applicant was entitled to have his community supervision reinstated where the sole basis for revoking the supervision was a conviction under a void statute.

EX PARTE TEMPLE, WR78,545-02 (Nov. 23, 2016): The prosecutor failed in her Brady obligations when several hundred pages of police offense reports were not disclosed until trial. The appellant was unable to effectively present his alternative perpetrator evidence because of the prosecutor’s misconception of her Brady duty and the late disclosure.

(Non-published.)

EX PARTE SHAY, WR84,007-01 (Dec. 14, 2016): In light of Smith (463 S.W.3d 890), Shay could not agree to a judgment convicting and sentencing him under a legally unenforceable statute nor FRXOG KH êDFFHSW WKH EHQHĆWV of the judgment of conviction.” Shay is not estopped from seeking relief based on the subsequent invalidation of the statute under which he was convicted.

(continues...)

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COURT OF APPEALS FISK V. STATE, 04-15-00667CR (Nov. 16, 2016): Convictions under Article 134, Paragraph 87 of the Uniform Code of Military Justice cannot be used to enhance punishments for convictions under Section 21.11 of the Texas Penal Code because the two statutes are not substantially similar.

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FIELDS V. STATE, 04-1500585-CR (Nov. 30, 2016):

About the Author:

7KH HYLGHQFH ZDV VXIĆFLHQW to convict the defendant of capital murder where he caused the death of a woman he knew to be pregnant and the mother’s death caused the unborn child to die. While a note to family containing the defendant’s girlfriend’s wishes was not a present sense impression, its admission was harmless because the girlfriend had already WHVWLĆHG WKDW VKH IHDUHG IRU her life. Additionally, admission of an autopsy photo of the unborn-child victim was not error.

Tiffany Shockley currently serves as an Assistant Editor for the Defender magazine and is employed as an associate attorney at Gross & Esparza, PLLC.

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