Opinion

Vargas, Victor James

Court: Court of Appeals of Texas
Filed: Mar 2, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

“. . . affidavit is not required to reflect every component legally required to establish relief, but the motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such relief could be granted.”

How later courts described this case

“. . . affidavit is not required to reflect every component legally required to establish relief, but the motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such relief could be granted.”
“affidavit is not required to reflect every component legally required to establish relief, but the motion for new trial or affidavit must reflect 4 that reasonable grounds exist for holding that such relief could be granted.”
"The Court is, therefore, not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no str.ategic decision at all."
"The result of a proceeding can be rendered unreliable, and hence, the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."

Written by the judges who cited it.

The opinion

PD-0229-15

No. __________________

__________________________________________

In the Texas Court of Criminal Appeals

_______________________________________

Victor James Vargas

Appellant,

March 2, 2015

The State of Texas

Appellee.

_______________________________________

On Review from the

Eleventh Court of Appeals at Eastland, Texas

____________________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

____________________________________________________________

Frank Sellers

Texas Bar No. 24080305

HURLEY, GUINN & SELLERS

1805 13th Street

Lubbock, Texas 79401

P: 806.771.0700

F: 806.763.8199

frank@hurleyguinn.com

Attorney for Appellant

ORAL ARGUMENT NOT REQUESTED

I DENTITY OF J UDGE , P ARTIES , AND C OUNSEL

Trial Court Judge

Honorable Carter Schildknect

106th District Court of Dawson County, Texas

Defendant/Appellant Appellate Counsel

Victor Vargas Frank Sellers

HURLEY, GUINN & SELLERS

1805 13th Street

Lubbock, Texas 79401

P: (806) 771-‐‑0700

F: (806) 763-‐‑8199

E: frank@hurleyguinn.com

Court-‐‑Appointed Trial Counsel

Artie Aguilar

1015 Buddy Holly Avenue

Lubbock, Texas 79401

The State of Texas Trial and Appellate Counsel

Mike Munk

DAWSON COUNTY DISTRICT ATTORNEY’S OFFICE

P.O. Box 1124

Lamesa, Texas 79331-‐‑0008

T ABLE OF C ONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL .................................................... I

TABLE OF CONTENTS .......................................................................................II

INDEX OF AUTHORITIES .................................................................................. IV

STATEMENT REGARDING ORAL ARGUMENT ...................................................... 1

STATEMENT OF THE CASE ............................................................................... 2

STATEMENT OF PROCEDURAL HISTORY ............................................................ 3

GROUND FOR REVIEW ..................................................................................... 4

When a motion for new trial is supported by sworn affidavits

alleging matters indeterminable from the record, the trial court

must conduct a hearing. Vargas timely filed a motion for new

trial, supported by sworn affidavits alleging facts that, if true,

would entitle him to relief. Did the court of appeals err by

dismissing Vargas’s appeal of the denial of a hearing on his

motion for new trial?

STATEMENT OF FACTS .................................................................................... 4

ARGUMENT .................................................................................................... 8

The court of appeals erred by dismissing Vargas’s appeal

instead of abating or remanding the case to the trial court to

conduct an evidentiary hearing on his motion for new trial.

CONCLUSION AND PRAYER FOR RELIEF .......................................................... 13

CERTIFICATE OF SERVICE.............................................................................. 15

CERTIFICATE OF COMPLIANCE ....................................................................... 15

TABS ...............................................................................................................

1. Original Motion for New Trial (filed Aug. 22, 2014)

2. Defendant’s Second Request for Hearing (filed Sept. 19, 2014)

3. First Amended Motion for New Trial (Oct. 3, 2014)

4. Notice of Appeal

5. Order to Show Cause (Oct. 28, 2014)

6. Court of Appeals Opinion (issued Nov. 20, 2014)

7. Motion for Rehearing (filed Dec. 31, 2014)

8. Denial of Motion for Rehearing (Jan. 22, 2015)

I NDEX OF A UTHORITIES

Cases

Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) _____________ 13

Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001). _______________ 15

Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005) ______________ 13

Guidry v. State, 132 S.W.3d 611 (Tex. App.—Houston [1st Dist.] 2004, no

pet.). _________________________________________________________ 12

Martinez v. State, 74 S.W.3d 19 (Tex. Crim. App. 2002) _______________ 9, 14

Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010) ________________________ 10

Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) ___________________ 9

State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993) ________________ 8

Strickland v. Washington, 466 U.S. 668 (1984), _________________________ 10

Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013) (citation omitted) __________ 15

United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008) ____________________ 10

Vargas v. State, No. 11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland Nov. 20, 2014,

pet. filed) (mem. op., not designated for publication) ____________ 3, 7, 13

Wilbur v. City of Mt. Vernon, 989 F.Supp.2d 1122, 1124 (W.D. Wash. 2013) 11

Rules

TEX. R. APP. P. 43.6 ________________________________________________ 12

TEX. R. APP. P. 44.4 ________________________________________________ 12

TEX. R. APP. P. 66.3 _________________________________________________ 8

TEX. R. APP. P. 68.1 _________________________________________________ 1

TEX. R. APP. P. 68.4(d) ______________________________________________ 1

TEX. R. APP. P. 9.4 _________________________________________________ 15

TEX. R. APP. P. 9.5(d) ______________________________________________ 14

Other Authorities

ABA Standards Relating to Criminal Justice, § 4 ____________________ 9, 10

Dottie Carmichael et. al., Guidelines for Indigent Defense Caseloads, A Report to

the Texas Indigent Defense Commission, TEXAS A&M UNIV. PUB. POLICY

RESEARCH INST. (2015), available at

http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf _______ 6

No. __________________

__________________________________________

In the Texas Court of Criminal Appeals

_______________________________________

Victor Vargas

Appellant,

The State of Texas

Appellee.

_______________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW APPELLANT, VICTOR VARGAS, by and through his counsel

and pursuant to TEX. R. APP. P. 68.1, and presents this Petition for

Discretionary Review, and would show this Honorable Court the

following:

S TATEMENT R EGARDING O RAL A RGUMENT

Pursuant to TEX. R. APP. P. 68.4(d), Vargas waives oral argument

because he is simply asking this Court to summarily grant this petition and

remand the case with instructions to abate the case to the trial court to hold

a hearing on Vargas’s timely filed, properly supported, motion for new

trial.

S TATEMENT OF THE C ASE

Vargas was indicted for possession of a controlled substance less than

one gram. Represented by court appointed counsel, Artie Aguilar, Vargas

entered a guilty plea. After Vargas received a probated felony sentence,

undersigned counsel agreed to represent Vargas pro bono to file a motion

for new trial attempting to reverse the guilty plea because it was both

involuntary and the result of ineffective assistance of counsel. Tab #1, Ex.

A, Aff. of Victor Vargas. Despite a motion for new trial and amended

motion for new trial (both supported by affidavits alleging facts that, if

found true by the trial court, would entitle Vargas to relief), the trial court

refused to conduct a hearing, allowing the motion to overrule by operation

of law.

S TATEMENT OF P ROCEDURAL H ISTORY

After the trial court allowed Vargas’s motion to overrule, Vargas filed

notice of appeal to the Eleventh Court of Appeals.1 Specifically, Vargas

sought to appeal the: “(1) denial of a hearing on his motion for new trial,

and (2) the trial court’s implicit legal ruling on his motion for new trial.”

Tab #4. In an unpublished opinion, the Eleventh Court of Appeals

dismissed Appellant’s appeal on November 20, 2014. Tab #6, Vargas v.

State, No. 11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland Nov. 20, 2014, pet. filed)

(mem. op., not designated for publication). Vargas filed a motion for

rehearing on December 31, 2014. Tab #7. That motion was denied on

January 22, 2015. Tab #8. This petition for discretionary review will be

timely filed if filed on or before February 23, 2015.

The Court of Appeals granted an extension of time to file the notice of appeal.

See also Dottie Carmichael et. al., Guidelines for Indigent Defense Caseloads, A Report to

the Texas Indigent Defense Commission, TEXAS A&M UNIV. PUB. POLICY RESEARCH INST.

G ROUND FOR R EVIEW

When a motion for new trial is supported by sworn affidavits

alleging matters indeterminable from the record, the trial court

must conduct a hearing. Vargas timely filed a motion for new

trial, supported by sworn affidavits alleging facts that, if true,

would entitle him to relief. Did the court of appeals err by

dismissing Vargas’s appeal of the denial of a hearing on his

motion for new trial?

S TATEMENT OF F ACTS

Following his guilty plea, Vargas timely filed a motion for new trial

supported, inter alia, by affidavits from Vargas himself and his mother,

Darcy Vargas. Tab #1. In his affidavit Victor Vargas reveals how the stop of

his vehicle and continued detention of him appeared to be illegal, as well

as how Aguilar (court-‐‑appointed trial counsel) failed to discuss any options

other than to plead guilty with him:

• “The officer then pulled me over because he believed that I ‘looked

fatigued.’”

• “After my November 2012 habeas hearing, I was unable to get in contact

with Artie again until February of 2014.”

• “From my original arrest on August 9, 2012, until July 23, 2014, almost

all of the contact that I have ever had with Artie has been inside the

court room. I have never seen any discovery (police reports, lab report,

or video). I do not know if or when Artie got the discovery.”

• “Artie told me that I had no choice but to either take the final deal or go

to trial and get the maximum sentence. I asked him about whether the

stop was legal. I asked him about the lab report and whether there was

even enough to charge me. Artie never discussed any options other than

pleading guilty with me.”

• “Had Artie explained anything to me about the suppression hearing or

affirmative links, and/or if I had had the opportunity to view the video

and see the reports, I would not have pled guilty.”

Tab 1, Exhibit A, Aff. of Victor Vargas. In the conclusion and prayer of his

motion, Vargas asked the court to “set this matter for an evidentiary

hearing,” and then grant his motion. Tab 1.

Almost a month later, the trial court still had not set Vargas’s motion

for a hearing. Vargas filed a second request for the trial court to set a

hearing. Tab #2.

Forty-‐‑two days after filing his original motion for new trial, Vargas

filed an amended motion for new trial. Tab #3, First Amended Motion for

New Trial. This amended motion was supported by all of the same exhibits

from his original motion, as well as the following additional exhibits: (1)

Contract for Indigent Defense in the 106th Judicial District Court of Texas

(file marked December 9, 2013); (2) Letter from Judge Schildknecht to Joel

Lieurance, Policy Monitor at TIDC (July 19, 2013); (3) Texas Indigent

Defense Commission; (4) Review of Gaines County’s Indigent Defense

Systems (June 11, 2013); (5) Affidavit of Philip Wischkaemper; and (6)

Affidavit of Frank Sellers. In his affidavit, Wischkaemper, a 26-‐‑year veteran

criminal lawyer who is responsible for training for the Lubbock County

Private Defender’s Office, opined that if the allegations in Vargas’s

affidavit were true, it would constitute ineffective assistance of counsel.

Tab 3, Exhibit H. Wischkaemper also stated that Aguilar’s 2012 caseload —

254 appointed felony cases that represented 60% of his practice — far

exceeded the Lubbock Private Defender’s Office’s limit of 65 clients per

appointed attorney. Id. 2 Finally, undersigned’s affidavit detailed how

Aguilar “declined” to speak with him or provide an affidavit about these

allegations on multiple occasions. Tab 3, Exhibit I.

See also Dottie Carmichael et. al., Guidelines for Indigent Defense Caseloads, A Report to

the Texas Indigent Defense Commission, TEXAS A&M UNIV. PUB. POLICY RESEARCH INST.

(2015), available at http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf.), at 34

(concluding that for reasonably effective representation attorneys should carry an

annual full-‐‑time equivalent caseload of no more than the following: 236 Class B

Misdemeanors, 216 Class A Misdemeanors, 174 State Jail Felonies, 144 Third Degree

Felonies, 105 Second Degree Felonies, or 77 First Degree Felonies).

In the face of these uncontroverted affidavits and multiple requests,

the trial court allowed the motion to overrule by operation of law. Vargas

filed notice of appeal to the Eleventh Court of Appeals. Despite Vargas’s

notice of appeal essentially notifying the court that all he wanted was a

hearing, not a full review of the merits, the appellate court asked Vargas to

show cause as to why he should be allowed to continue his appeal:

Upon reviewing the trial court’s Certification of

Defendant’s Right of Appeal, it indicates Appellant waived his

right of appeal. Appellant is requested to provide this Court

with a response, in writing, showing grounds to continue this

appeal. If the response is not filed on or before November 5,

2014, the appeal may be dismissed. Tab #5.

While in the midst of a four-‐‑week capital murder jury trial,

undersigned overlooked that portion of the court’s request. Tab #7, Motion

for Rehearing. The court then dismissed Vargas’s appeal claiming he had

waived his right to an appeal at his guilty plea. Tab #6, Vargas v. State, No.

11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland Nov. 20, 2014, pet. filed) (mem. op.,

not designated for publication). Vargas filed a motion for rehearing asking

the court to reinstate his appeal. Tab #7. After the court of appeals refused

to reinstate Vargas’s appeal to remand the case to the trial court to conduct

a hearing, Vargas filed this petition.

For the reasons that follow, the Court of Appeals erred by dismissing

Vargas’s appeal without remanding or abating the case to the trial court to

conduct an evidentiary hearing on his motion for new trial. Therefore,

discretionary review is warranted pursuant to Rules 66.3(a), 3 66.3(c), 4

66.3(d),5 and 66.3(f).6

A RGUMENT

The court of appeals erred by dismissing Vargas’s appeal

instead of abating or remanding the case to the trial court to

conduct an evidentiary hearing on his motion for new trial.

The standard of review for “[b]oth the granting and denying of a

motion for new trial rest within the discretion of the trial court, and

“[W]hether a court of appeals'ʹ decision conflicts with another court of appeals'ʹ

decision on the same issue.”

“[W]hether a court of appeals has decided an important question of state or federal

law in a way that conflicts with the applicable decisions of the Court of Criminal

Appeals . . . .”

“[W]hether a court of appeals . . . appears to have misconstrued a statute, rule,

regulation, or ordinance.”

“[W]hether a court of appeals has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a departure by a lower court, as

to call for an exercise of the Court of Criminal Appeals'ʹ power of supervision.”

appellate courts ordinarily will not reverse that decision unless the trial

court has abused its discretion.” State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.

Crim. App. 1993). When a defendant’s motion for new trial raises issues

“not determinable from the record, which could entitle him to relief, the

trial judge abuses [his or her] discretion in failing to hold a hearing.”

Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). The purpose of

the hearing is to “fully develop the issues raised in the motion.” Id. To

obtain a hearing, “the motion must be supported by an affidavit

specifically showing the truth of the grounds for attack.” Id. Not every

element must be established “but rather must merely reflect that

reasonable grounds exist for holding that such relief could be granted.” Id.;

Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (“. . . affidavit is

not required to reflect every component legally required to establish relief,

but the motion for new trial or affidavit must reflect that reasonable

grounds exist for holding that such relief could be granted.”).

Vargas made multiple allegations that would entitle him to relief for

Aguilar’s ineffective assistance of counsel:

• Aguilar’s failure to conduct an “appropriate investigation and study of

the case,” ABA Standards Relating to Criminal Justice,7 § 4-‐‑6.1(b) (1991)

[hereinafter “ABA Standards”].

• Aguilar’s failure to “provide the [Vargas with] an understanding of the

law in relation to the facts,” United States v. Cavitt, 550 F.3d 430, 440-‐‑41

(5th Cir. 2008);

• Aguilar’s failure to review or discuss discovery with Vargas;

• Aguilar’s failure to file a motion to suppress;

• Aguilar’s intentional overstatement of the penalty Vargas would face if

he opted to go to trial (the maximum prison sentence), which caused

“undue influence on [Vargas’s] decision” to plead guilty. ABA

Standards § 4-‐‑5.1;

• Aguilar’s advising Vargas to plead guilty before “appropriate

investigation and study of the case had been completed,” ABA

Standards § 4-‐‑3.2;

• All of the above was likely the result of Aguilar’s excessive caseload,

which systematically prevented him from being able to provide

constitutionally effective assistance of counsel.8

The Supreme Court has made clear that the inquiry into whether an attorney

performed deficiently under Strickland v. Washington, 466 U.S. 668 (1984), “is necessarily

linked to the legal community’s practice and expectations.” Padilla v. Kentucky, 130 S. Ct.

1473, 1482 (2010). Accordingly, the American Bar Association standards provide

invaluable guidance on practice and expectations in representing criminal defendants.

See id. Using these standards, it’s equally clear that Aguilar’s representation fell below

an objective standard of reasonableness under then “prevailing professional norms.”

Strickland, 466 U.S. at 688.

See Wilbur v. City of Mt. Vernon, 989 F.Supp.2d 1122, 1124 (W.D. Wash. 2013)

(holding that indigent defendants were “systematically deprived of the assistance of

• Finally, “Had Artie explained anything to me about the suppression

hearing or affirmative links, and/or if I had had the opportunity to view

the video and see the reports, I would not have pled guilty. Instead, I

would have insisted on going to trial — regardless of the outcome.” Tab

1, Ex. A.

Vargas’s motion for new trial and supporting exhibits were

“sufficient to put the trial court on notice that reasonable grounds existed

to believe that trial counsel'ʹs representation may have been ineffective.”

Guidry v. State, 132 S.W.3d 611, 613 (Tex. App.—Houston [1st Dist.] 2004,

no pet.). The Court of Appeals, however, appears to have concluded that

Vargas was seeking review of the substantive issues in his case, as opposed

to a ruling on the denial of a hearing. See Wallace v. State, 106 S.W.3d 103,

108 (Tex. Crim. App. 2003) (discussing the difference between error in

denying a motion for new trial and error in denying a hearing on the

motion).

counsel at critical stages of the prosecution and that municipal policymakers have made

deliberate choices regarding the funding, contracting, and monitoring of the public

defense system that directly and predictably caused the deprivation,” where public

defenders were saddled with caseloads comparable to Aguilar’s. See also id. (calling

City’s indigent defense a “meet and plead” system).

The Court of Appeals’ misunderstanding of the relief Vargas was

seeking — initially, a hearing on his motion for new trial — becomes more

apparent when looking to the cases cited in its opinion dismissing the

appeal. Tab #6, Vargas v. State, No. 11-‐‑14-‐‑00283, at *2 (Tex. App.—Eastland

Nov. 20, 2014, pet. filed) (mem. op., not designated for publication (citing

Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Dears v. State,

154 S.W.3d 610, 612 (Tex. Crim. App. 2005)). Chavez dealt with an appellate

waiver following a negotiated plea bargain. 183 S.W.3d at 680. Dears

involved the right to appeal from a negotiated probation-‐‑revocation plea.

154 S.W.3d at 612. Both cases sought review of substantive claims on direct

appeal, as opposed to review of procedural defects. Neither case involved a

defendant’s right to a hearing on a properly filed, properly supported

motion for new trial.

Upon receiving Vargas’s notice of appeal seeking review of the

“denial of a hearing on his motion for new trial,” the Court of Appeals

should have abated or remanded the case for a hearing. See TEX. R. APP. P.

43.6 (providing that “court of appeals may make any other appropriate

order that the law and the nature of the case require”); TEX. R. APP. P. 44.4

(providing that if trial court'ʹs error or failure to act prevents proper

presentation of case on appeal and trial court can correct its error or failure

to act, court of appeals “must not affirm or reverse,” but “must direct the

trial court to correct the error”). Accordingly, this Court should summarily

grant this petition, reverse the lower court’s dismissal, and remand this

case “with instructions to abate the appeal and remand the cause to the

trial court to conduct a hearing on appellant'ʹs motion for new trial.”

Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002).

C ONCLUSION AND P RAYER FOR R ELIEF

The United States Supreme Court recently criticized Texas’s appellate

scheme for the difficulty it causes defendants wanting to raise ineffective

assistance claims on direct review. Trevino v. Thaler, 133 S. Ct. 1911, 1915

(2013) (citation omitted) (“The structure and design of the Texas system in

actual operation, however, make it ‘virtually impossible’ for an ineffective

assistance claim to be presented on direct review.”). And over a decade

ago, this Court commented that claims of ineffective assistance and

involuntary guilty pleas should be raised through motions for new trial so

that they “may be supported by information from sources broader than the

appellate record.” See Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App.

2001). By dismissing Vargas’s appeal without ever giving him the benefit of

a hearing on his motion, the Eleventh Court of Appeals has re-‐‑affirmed the

Supreme Court’s criticism — even when done correctly, review of an

ineffective assistance claim is seemingly impossible.

WHEREFORE, PREMISES CONSIDERED, Vargas prays this Court reinstate

his appeal and remand this case to the Court of Appeals with instructions

that would allow Vargas a hearing on his motion for new trial.

Respectfully submitted,

_________________________

Frank Sellers

Texas Bar No. 24080305

HURLEY, GUINN & SELLERS

1805 13th Street

Lubbock, Texas 79401

P: 806.771.0700

F: 806.763.8199

E: frank@hurleyguinn.com

Attorneys for Appellant

C ERTIFICATE OF S ERVICE

Pursuant to TEX. R. APP. P. 9.5(d), a copy of the foregoing was served

on opposing counsel viaȱȱ February 23, 2015.

_________________________

Frank Sellers

C ERTIFICATE OF C OMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify

that this brief contains 2,685 words (excluding the caption, identification of

the parties, index, list of authorities, signature, certification, and certificate

of compliance). This is a computer-‐‑generated document created in

Microsoft Word, using 14-‐‑point typeface for all text, except for footnotes

which are in 12-‐‑point typeface. In making this certificate of compliance, I

am relying on the word count provided by the software used to prepare

the document.

_________________________

Frank Sellers

T ABS

1. Original Motion for New Trial (filed Aug. 22, 2014)

2. Defendant’s Second Request for Hearing (filed Sept. 19, 2014)

3. First Amended Motion for New Trial (Oct. 3, 2014)

4. Notice of Appeal

5. Order to Show Cause (Oct. 28, 2014)

6. Court of Appeals Opinion (issued Nov. 20, 2014)

7. Motion for Rehearing (filed Dec. 31, 2014)

8. Denial of Motion for Rehearing (Jan. 22, 2015)

Tab #1

Original Motion for New Trial (filed Aug. 22, 2014)

FILED IN

11th COURT OF APPEALS

EASTLAND, TEXAS

10/28/2014 5:39:00 PM

SHERRY WILLIAMSON

Clerk

08/22/2814 16:41 8067638199 HURLEY & GUII'f'.l PAGE 83/27

never showed him the video of the stop, and never showed him the lab report. Because

Vargas had legitimate defenses to the stop and the possession allegation that could have

been raised before and during trial, this Court must grant him a new trial.

Ill. ARGUMENT AND AUTHORITIES

A. Facts

Vargas was arrested on August 9, 2012 by Texas Department of Public Safety

Trooper Wally Garza for possession of a controlled substance less than one gram. He

was indicted on February 13, 2013. TI.1e Court appointed Aguilar to represent Vargas.

Prior to pleading guilty, Vargas was told only that he had received an offer of three

years probation, and that if he did not take that, he would receive five years probation.

Aguilar never showed Vargas any discovery whatsoever. Vargas pled guilty.

The discovery ir1. this case was crucial. It revealed that Vargas was stopped because

he travelled on the improved shoulder of Highway 84, and the trooper wanted to

"check on the conditions of the driver." Exhibit C at 2. After. pulling over, Trooper

Garza tells Vargas he will receive a wamjn_g for driving on the white line. Video at 6:56.

Nevertheless, Garza continued to detain Vargas and ask him questions completely

unrelated to the initial reason for the stop. Garza eventually asked for, and obtained,

consent to search. A drug dog subsequently arrived and did not appear to alert on

anything in the vehicle. Apparently pursuant to the consent, however, Trooper Garza

and another officer. searched the trunk and found baggies of trace residue inside.

08/22/2014 16:41 80676381'3'3 HURLEY & GUINN PAGE 04/27

Vargas and his mother gave detailed affidavits explaining Aguilar's performance,

professionalism, and behavior during his representation. For the sake of brevity, those

affidavits are included as exhibits and incorporated with all other exhibits by reference.

Importantly, as explained in his affidavit, Vargas did not want to plead guilty to this

charge. Unfortunately, he felt he had no choice.

B. Standard of Review

A defendant may raise ineffective assistance of counsel in a motion. for new trial,

even though it is not a ground specifically enumerated in TEx. R. APP. P. 21.3. State v.

Provost, 205 S.W.3d 561, 566 (Tex. App.-Houston [14th Oist.] 2006, no pet.). The trial

court's discretion in granting new trials "is almost the only protection to the citizen

against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, [and

the trial] Court should never hesitate to use that discretion whenever the ends of justice

have not been attained by those verdicts." Mullins v. State, 37 Tex. 337, 339-40 (1872-1873)

(emphasis added)i State v. CYlJnzales, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993). A trial

court does not abuse its discretion unless the trial court granted a new trial in an

arbitrary or unreasonable manner without reference to any guiding rules or principles.

See State v. LaSalle, 135 S.W.3d 94, 96 (Tex. App.-Corpus Christi 2003, no pet.).

C. Law on lne.ffecti.ve Assistance of Counsel

The Sixth and Fourteenth Amendments to the United States Constitution, as well as

Article I, Section 10 of the Texas Constitution, guarantee each defendant the right to the

08/22/2014 15:41 8057538199 I-IJRLEY & GUINN PAGE 05/27

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Cri.m. App. 1985). The

guarantee of effective assistance of counsel embodied in the Sixth Amendment now

extends to the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). This

guarantee includes the "effective assistance of competent counsel" before dedding

whether to plead guilty. Padilla v. Kentucky, 559 U.S. 356, 364 (2010). To prevail on a

claim of ineffective assistance of counsel Defendant must first show that counsel's

performance fell below an objective standard of reasonableness, and that there is a

reasonable probability tha.t, but for the a.ttom.ey's deficiency, the result of the

proceeding would have been different. See .Eddie v. State, supra, 100 S.W.3d at 442, citing

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Even a single error on counsel's

part can warrant a finding of prejudice. Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.

App. 2005).

Proving prejudice only requires showing that the result of the proceeding would

have been different by less than a preponderance of the evidence. Strickland, 466 U.S. at

694-96 ("The result of a proceeding can be rendered unreliable, and hence, the

proceeding itself unfair, even if the errors of counsel cannot be shown by a

preponderance of the evidence to have determined the outcome."); Po1·ter v. McCollum,

130 S.Ct. 447, 4.55-456 (2009) (per curiam) ("reasonable probability" standard requires

neither certainty nor showing that "more likely than not" diiferent outcome would have

08/22/2014 16:41 8067638199 1-URLEY & GUINN PAGE €16/27

occurred at guilt-innocence stage). Because this case deals with a guilty plea, "prejudice

occurs if there is a reasonable probability that, but for counsel's errors, the defendant

would not have pleaded guilty and would have insisted on going to trial." United States

v. juarez, 672 F.3d 381, 385 (5th Cir. 2012) (citations and quotations omitted). For a guilty

plea to be valid, it must have been a voluntary and intelligent choice among the

alternative courses of action available. Hill v. Lockhart, 474 U.S. 52, 56 (1985).

D. Vargas's Claim. Meets Both Prongs of the Strickland Test

Deficient Performance

To establish deficiency, Defendant must show that trial counsel was "not

functioning as the counsel guaranteed the defendant by the Sixth Amendment." juarez,

672 F. 3d at 386. This requires the Court to determine whether the representation fell

below an objective standard of reasonableness under then "prevailing professional

norms." Strickland, 466 U.S. at 688. This inquiry "is necessarily linked to the legal

community's practice and expectations." Padilla v. Kentucky, 130 5. Ct. 1473, 1482 (2010).

As the Supreme Court has long recognized, the American Bar Association standards

provide invaluable guidance on practice and expectations in representing criminal

defendants. See id.

The ABA Standards applicable here illustrate precisely why Aguilar's

performance was deficient. The ABA Standards relating to defense counsel's duty to

investigate provide:

as/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 07/27

Defense counsel should conduct a prompt investigation of the

circumstances of the case and explore all avenues leading to facts relevant

to the merits of the case and the penalty in the event of conviction. The

investigation should include efforts to secure information in the

possession of the prosecution and law enforcement authorities. The duty

to investigate exists regardless of the accused's admissions or statements

to defense counsel of facts constituting guilt or th.e accused's stated desire

to plead guilty.

ABA Standards Relating to Criminal Justice, § 4-4.l(a) (1991} (hereinafter "ABA

Standards"]. In the context of a guilty plea, the ABA Standards further provide, "Under

no circumstances should defense counsel recommend to a defendant acceptance of a

plea unless appropriate investigation and study of the case has been completed,

including an analysis of controlling law and the evidence likely to be introduced at

trial." ABA Standards§ 4-6.1(b); see also id. § 14-3.2 (1997) ("Defense counsel should not

recommend to a defendant acceptance of a plea unless a.ppropriate investigation and

study of the case has been completed."). Going further, the ABA Standards also set out

what defense counsel should do in advising a client after such an investigation has been

completed:

(a) After informing himself or herself fully on the facts and the law,

defense counsel should advise the accused with complete candor

concerning all aspects of the case, including a candid estimate of the

probable outcome.

(b) Defense counsel should not intentionally understate or overstate

the risks, hazards, or prospects of the case to exert undue inf1uence on the

accused's decision as to his or her plea.

ld. § 4-5.1 (emphasis added).

~8/22/2~14 16:41 8~67638199 HURLEY & GUINN PAGE EIB/27

Here, Aguilar's performance was deficient. He did not advise Vargas of anything

other than what his guilty-plea options were. He never disrussed the facts with him.. No

notes appear in the file. He never discussed or filed a motion to suppress. He never

even showed Vargas any of the discovery. The Fifth Circuit has made clear, this is not

acceptable conduct for defense attorneys. Moore v. Johnson, 185 F.3d 244, 261 (5th Cir.

1999) ("The Court is, therefore, not required to condone unreasonable decisions

parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of

counsel when it appears on the face of the record that counsel made no str.ategic

decision at all."). No justification exists for not discussing the facts with your client. 'This

Court should not condone or invent one.

Finally, much like "informed consent" in the medica1 field, "[c]ounsel must

ensure that guilty pleas are entered only as an informed and voluntary choice, by

actually and substantially assisti:n.g the defendant in deciding whether to plead guilty."

United States v. Juarez, 672 F.3d 381, 388 (5th Cir. 2012). Actual, substantial assistance can

only happen when ''appropriate investigation and study of the case has been

completed, including an analysis of controlling law and the evidence likely to be

introduced at trial." ABA Standards§ 4-6.l(b). Indeed, it is the lawyer's job to,

provide the accused a.n understanding of the law in rela.tion to the facts.

The advice he gives need not be perfect, but it must be reasonably

competent. His advice should permit the accused to make an informed

and conscious choice. In other words, if the quality of counsel's service

falls below a certain minimum level, the client's guilty plea cannot be

knowing and voluntary because it will not represent an infonned choice.

08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 09/27

And a lawyer who is not famil.ia_r with the facts and law relevant to his

client's case cannot meet that required minimal level.

United States v. Cavitt, 550 F.3d 430, 440-41 (5th Cir. 2008) (citations and quotations

omitted). Aguilar's performance was deficient.

Prejudice

The second part of the Strickland analysis requires Vargas to show that Aguilar's

performance prejudiced him. Vargas must demonstrate that there is a. "reasonable

probability" that but for Aguilar's errors, he "would not have pleaded guilty and would

have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). A reasonable

probability is "a. probability sufficient to undermine confidence in the outcome.''

Strickland v. Washington, 466 U.S. 668, 694 (1984). This is more than a mere possibility

but "less than a preponderance of the evidence that the error affected the trial." United

States v. juarez, 672 F.3d 381, 388 (5th Cir. 2012) (citation omitted).

Vargas had legitimate potentially exonerating defenses. First, the stop was

questionable at best, if not outright illegal. Second, the continued detention of Vargas

was unreasonable. United States v. Macias, 658 F.3d 509, 522 (5th Cir. 2011) (holding that

trooper's asking questions unrelated to initial reason for the stop illegally prolonged

traffic stop). TI1itd, the fact that the "affirmative links" doctrine was never discussed

with Vargas is devastating, especially given that multiple people had access to an.d

drove Vargas's vehicle. Finally, Vargas was not actually in possession of any drugs. No

08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 10/27

proof existed that he knew he possessed anything other than empty baggies containing

"trace," immeasurable amounts of a controlled substance.

Vargas is not required to prove his innocence, or even that he would have received a

better outcome. Rather, he is only required to prove tha.t he would not have actually

pled guilty had he been made aware of his options by a standard less than a

preponderance of the evidence. Varga.s's affidavit makes clear that he would not have

pled guilty and far exceeds this standard. Vargas was prejudiced.

E. Vargas's ineffective assistance claim was not waived by his guilty plea.

Vargas anticipates the State will argue that any claims of ineffective assistan.ce of

counsel were waived when he pled guilty to the offense, but this is no longer the law.

The Supreme Court has recently addressed ineffective assistance of counsel in the

context of guilty plea.s. Padilla v. Kentucky, 559 U.S. 356 (2010); Missouri v. Frye, 132 S.Ct.

1399 (2012). The Padilla court explained that, "the negotiation of a plea bargain is a

critical phase of litigation for purposes of the Sixth Amendment right to effective

assistance of coun.sel." Padilla, 559 U.S. at 373. There, the Court held that an attorney's

failure to properly advise the defendant of collateral immigration consequences

sterruning from a guilty plea constituted ineffective assistance.Jd. at 375. In doing so the

Court necessarily overruled prior authority holding that, "once a guilty plea has been

entered, all nonjurisdictional defects in the proceedings against a defendant are

waived." Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Any remaining doubt over

08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 11/27

the calculus of the Court's ruling in Padilla was removed by Frye: "[Padilla] also rejected

the argument made by petitioner in this case that a knowing and voluntary plea

supersedes errors by defense counsel." Frye, 123 S.Ct. at 1406. In other words, the

Supreme Court now routinely rejects Estelle's logic that if a plea is "voluntary, it follows

that claims of ineffectiveness unrelated to the guilty plea are waived." Estelle, 711 F .2d

at 682 (denying ineffective assistance claims based on failure to investigate prior to

a.dvising defendant to plead guilty). And the Fifth Circuit has followed suit. United

States v. Juarez, 672 F.3d 381 (5th Cir. 2012).

In Juarez, the Court held that an attorney's failure to investigate a potential

defense was not cured by a subsequent guilty plea. ld. at 389. There, Juarez pled guilty

both to lying about his U.S. citizenship on an application to purchase fireanns and to

illegal re-entry. Id. at 384. Although Juarez's mother was a naturalized citizen, Juare~'s

trial counsel never advised him that derivative citizenship was a defense to both of

these offenses.Id. at 385-86. Trial counsel also "did not know that Juarez could be a U.S.

citizen as other people did not inform him of this possibility." ld. at 385. Although the

legal interpretation of whether Juarez was able to qualify for the derivative citi.zenship

defense was unsettled, the Fifth Circuit held that at the time of Juarez's pleas, "a

derivative citizenship defense was plausible." Jd. at 387. The Juarez court concluded,

Juarez's guilty pleas were not entered knowingly or voluntarily becau.se

[trial counsel] advised him without investigating derivative citizenship.

"[A defendant) who does not receive reasonably effective assistance of

08/22/2014 16:41 8067638199 HURLEY & allNN PAGE 12/27

counsel in connection with his decision to plead guilty cannot be said to

have made that decision either intelligently or voluntarily."

Id. at 390 (quoting Mason v. Balcom, 531 F.2d 717, 725 (5th Cir.1976)).

Much like trial counsel in Juarez had a duty to investigate the facts and law

underlying a "plausible" defense, Aguilar had a duty to investigate the facts and law

underlying Jegitimate, potentially exonerating defenses for Vargas. Because Aguilar

failed to do this - a decision contrary to established federal precedent and

unsupported by any reasonable argument - Vargas was denjed constitutionally

effective assistance of counsel.

Ill. CONCLUSION & PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays tha.t th.is Court set this

matter for an evidentiary hearing and at the close thereof, grant this motion for new

tr.i.al, and vacate the judgment and sentence in this case.

Respectfully submitted,

Texas Bar No. 24080305

1805 13th Street

Lubbock, Texas 79401

P: 806.771.0700

F: 806.763.8199

ATIORNEYS FOR DEFENDANT

08/22/2014 16:41 8067638199 ~EV & GUII-f'.l PAGE 13/27

Certificate of Service

I certify that today, August 22, 2014, a. copy of the foregoin. mailed and faxed

to the Dawson County District Attorney's Office.

Certificate of Presentment

I certify that today, August 22, 2014, a. copy of the foregoing was ed and

emailed to the Judge of this Court, along with a blank Order S,ertJrn!Z:;r-u~

08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 14/27

Exhibit A

Affidavit of Victor Vargas

08/22/2014 15:41 8857538199 H~LEV & GU!i'l'l PAGE 15/27

AFFIDAVIT

THE STATE OF TExAs §

. §

COUNTY OF ~0\:to(\ ~ §

Before me, the undersiped authority, personally appeared Victor Vargas. who upon his oath

deposed and stated the following:

My name is Victor Varps. I am over the age of 18. of sound mind. competent to make this

affidavit, and bave pel'JOD8Ilmowledge of the filets below. I have prepared this affidavit with the

help of my new lawyer, Frank Sellers.

I was driving from Lubbock, TX to San Angelo, TX on Aupst 9, 2012. I was in a lowered

Cadillac Coupe Deville that had previously been used by my broCh« and mend. As I was drMng

on Highway 87, I noticed an officer on the other side of the road. The officer drove up beside me

and remained db:ectly next to my vdricle for a short period of1ime.. The oftic:er then pulled me

over because lv: believed that 1 "looked fatiped." After the officer explained to me that I would

r=eive a warning and rcccivina the same, the officer asked tbr COIIIeDt to search. lbihking there

was nothing to hide, I gave the officer dris consent.

There were three to four large suitcase-type bags located in the trunk of the v~e. Small

plastic baggies WCR fouud in one bag tbat also c:ontained my tattoo equipment. There were many

clean, wuscd small plastic bagies within this larger bag. Hc»vever, two small mreen baggjes

were mixed in amongst tbe clean baggies. Upon inspecting these two green blgies, tbe officer

del:eeted a tiny amount of what he believed was drug residue on the inside. 1 was then arrested

for felony possession of a COJdrolled. substaDcc less tban 1 gram. I was held in Dawson County

Jail wilh a S10,000 bodd. I was unable to get a bond because I was an out of town traveler and

c:oruJiclaed a flight risk. My ooly option was to wait in jail Uldi1 my attorney and J could sort

everything OUL

While in j~ I received a letter from Artie Aguilar notifYing me that he would be serving as

my court appointed lawyer in this matter. When I received this letter I bed my wife, Crystal

Vargas, conract Artie almost immediately. After many attelnpts, sbe was UDable to reach him.

After about 10 days in jail Crystal tried many 1001e times to oontact Artie, each time was

unsuccessful. Crystal was finally able to reach Artie. But Artie told Crystal that he coutdn•t talk

to her because all the information in my case was confidential.

Other than Artie's first lettr:r, I bad not beard ftom bim in any way while I was in jail. After

almost 90 days I wrote a leaer to Artie, informing bim that I bad not been inc1icted aod that I

wanted to file a writ of habeas corpus. I oevcr received a letter in return from Artie. but two

weeks later received notice that I would be haviDs a bearing for habeas relief. Artie and I were

both present for this hearing. This wu the first tiOle I bad spoken to Artie aside fiom the initial

letter he sent me. bJ November2012, tbejudge granted me habeas reJiefbecause I still had not

yet been indicted. Wrth some stipulations, I was released from jail.

08/22/2014 16:41 8067638199 HJRLEY & GUINN PAGE 16/27

After my release, I called and sent letters to Artie hopiDg to resolve my lepl issues. Also, I

was planning 8 move from San Angelo to Houstoa early in 2013 aud knew 1bll--es 8 condition

of my releasc--1 would need to inform both my attomey and the comw:y. Eaeh time I tried to

reach Artie aod iufonn him of this move I was uasuccessfW..I reac:bed Artie's secretuy (his

fidher) multiple times ad left f!N"$98p. Howew:r, I never received a return phooe call or any

letters 1iom Artie. After my November 2012 habeas hearing. I was unable to get iD contact with

Artie again UDtil Febnlll)' of20J4.

In February of2014, I was pulled over for having expired license plates in Houston and

subsequently am:stcd due to a pending indicbneot in Dawson County. Artie bad not notified me

oftbis indiclmeDt. I wa never told that fbi= was even a posst''bility of trial. At this time. my wife

and mother (Datqr Vargas) began adliag Artie's office in hopes of gettiDg more details on the

indictmeqt. Botb were aosuccessful on nearly eYf:rJ 8ltempL My molher was finally able to get a

hold of Artie, only to be cussed out for calling too mucb and tben bung up on.

The oex.t time I saw Attie was in April of20l4 at my arraignment in Dawson County. I was

told that I would need to come back aud enter my plea in June of2014 at 9:00A.M. Although I

now lived in Houston, I drove to Dawson County and arrived at tbe scbcduled time. I was told

that b)' Artie that the District Attorney wasn't ready at 811 and that they didn't have mtything

prepared. This hearing was rescheduled and I was fon:ed to drive all the way back to Houston.

The next court date sbould have been July 2, 2014. Artie told me that be was going to try to

set up a way where I could avoid having to drive in from Houston again. In late June. I received

a call &om Arlie saying tbat I bad RCeived a second plea offer. At this time, I told Artie thall

didn't even knew of the first plea offer. Artie told me that I bad been pnmously been offered a

plea of S years state jail confinement with 4 years of or community supervision. I do not know

wbeo Artie n:cdved the fint offer. Artie told me that be had "already told them that you weren •t

going to Ulke it...

The sc:amd plea oftb- was for 2 years of S1afe jail ccmfinemeat with 3 years of community

supervision. I asked Artie if he would be able to get anything less. He told me that I was lucky

they offered me this btause for a wbile they didn't want to come down from S years. Once

again, l was unaware that prior ncgotiadcms and/or offers had ever laben place. I was 1-.sically

told to take it or leave it oa this 8CCODd offer. Mtie elso told me that he would be able to move

my court date ftom July 2, 2014, to July 23, 2014. After spcaldng with my wife, I decided that I

bad no choice but to take the second offi:r.

From my original arrest on August 9, 2012. until July 23, 2014, almost all of the contact that

I have ever had with Artie IMs been inside the court room. I have never sc:en any discovery

(police ...,rts, lab report, or video). I do not bow if or wbm Artie got tbe discovery.

Throughout tbis ~process, Artie has been nearly impossible to reach.

Artie told me tbat I had no choice but to either take the final deal or go to trial and get the

maximum scntenc:e. I asked him about whether the stop was legal. I asked him about the lab

report aod wbelber there was even enough to daarge me. Artie never discussed any options other

than pleading guilty with me.

Alllda.U of' VIdor va...-- hie 2

08/22/2014 16:41 8067638199 1-il.RLEY & GUINN PAGE 17/27

While: lcaviag tbe courthouse after my plea, attorney Frank Sella'S overheard my Mom and I

arguiag about the plea deal I bad just bcca fon:ed to take. Mr. Sellers inquired about my limited

knowledge of the facts of my case. He lgreed to help me file a motion for new 1riat without any

c:ostto me.

Mr. Sellers reoeivccl the discowry from Ame. He then sbowal it to me. This was the fimt

time I had seen a police report. lab rqJOrt, and video. He also explaiDed to me that the stop and

consent to search my vehicle appeand to be uneoostitutiooal. He said that dtele were legitimate

defenses that could have been ftlised both before trial in 1iont of the judge at a suppression

heariag, as well as in fioDl oflbe jUI)'. AdditiOD8lly, he explained the legal c:oocept of

"affirmatiw liDks," requirina the State to 1iDk me to anyd:tiog in tbe car becaU9e multiple people

had access to the vehide.

I am not pilty oftbe cbarge I pled guilty to. Had Artie explained anything to me about the

suppression bearing or affinnalive liftks, and/or if I bad bad tbe opportunity to view the video

and see the reports, I would not bave pled guilty.lnsteld, I would have iusisted on go.iDg to trial

-regardless of the outcome.

Subscribed and swom to before me on August li, 2014. by Victor Vargas.

B8/22/2B14 16:41 8B67638199 HURLEY & GJINN PAGE 18/27

Exhibit B

Affidavit of Darcy Vargas

08/22/2014 16:41 8067638199 HURLEY & GJINN PAGE 19/27

AFFIDAVIT

ntE STATE OF TExAs §

Before 111e, the undersiped authority. personally appeared Darcy Vargas, who upon her oath

deposed end stated the following:

..My name is Darcy Vargas. t am owr the age of 18, of sound mind, competent to make tllis

affidavit, and have pei"SSMM knowledge of the facts below. I have prepared this affidavit with the

help of my son's new lawyer, Frank Sellers.

l, Darcy Varps, have been involved in Ibis case ever since my son Victor was arrested in

Houston and informed that he had a wanant in Dawson County. Prior to the arrest in Houston. I

had called Anie Apilar maybe once or twice before. This previous call was just to notify Artie

that Victor pllllllled to move in with me in Houston. Because nobody was able to a« a hold of

Artie, Victor and 1 decided 1hc best thing to do was to send a letter to his office with the address

of Victor's new residente ill Houston.

After Victor's arrest, I called Artie many times hoping to get some infonnation about the

wammt in Dawson County.l called hisoffic:e 1D811)', many times with no answer. I was often

IIIUlble to leave voicemails because the phone would just keep ring endlessly. After many failed

attempts, I wa fmally able to reach a male who sccmcd to be acting as Artie's sct~£taly. I cannot

recall if this man b)ld me his name or not. I told the sccrc:tary that I needed to speak with Artie

immediatdy because we were not aware Chat a wanant had been issued in Dawson County.

Within a day or two, I spoke with Attie for the first time. He called in the aftemoon aDd

asked what I wan~ to which I said we nJZded information on Victor's cue. Artie responded

that there had been a sealed indictment and that it was not his raponaibility to intbrm V"actor

about it. After a briefoon'ft:tlation about why we weren't made aware ofthe sealed indictment,

Artie fanally asked me, "What do you wantr J araswered that I ji&SC wancecllnfonnation, records,

or anything that could help gel my son out ofjail in Houston. I will never forget his response. He

responded, "Access Denied. Now what do you want?" Once again [ requested 1hc same

infonnation. Artie then said, "Look lady, qui' being a bitch." Shocked by how unprofessional he

was, I responded, "Excuse me? You did not just call me the 8-Word." Artie lhen said, uwell

lady, you heard me,. and hung up the phone on me. I found Ibis diBiespectful conduct particularly

surprisinJ coming ffom a lawyer.

In June of2014, Artie called me and said that I needed to have Victor call him because he

had been gM:n a plea offer. V"ICior called Artie back and was able to get a hold of Artie. This is

when Victor was told of the offer that he eventually acc:eptcd.

Before accepting this plea, neither Victor nor I were able to view any police reports. any lab

reports, or the video of Victor's stop and arrest. I found Mr. Aguilar's behavior ~ble and

of lowest caliber of any professional I have ever dealt with. His lc:gaJ work was not much better."

88/22/2814 16:41 80676381'3'3 HURLEY & GUif'.l'l PAGE 28/27

Subacribed and sworn to before me on August JL 2014. by Darcy Vargas.

08/22/2014 15:41 8057538199 1-fJRLEY & GUINN PAGE 21/27

Exhibit C

Trooper Garza's Report

08/22/2014 15:41 80676381'3'3 f-IJRLEY & Gl.Jl NN PAGE 22/27

• ,..

Q'EXAS DEPARTMENT OF PUBLIC SAFkp TRAFFK:

TEXAS HIGHWAY PATROL DMSION _x_ CRII.tiMfL

OFFENSE REPORT WtOOI.NOTR:AnON

REQUIRED fAAT. 11.27 CCP)

REPORT DATE: 0Bf09/12

FILETm.E INVESnGAnNG OFFICER:

~JWE: Waltf~G

1. Vargas, VIdor James IO-IIt 12989

2. 522 e. 24* street • • .

3. San Angelo, TX 78903 SIOM'IllftE; ~

4. W/M REGIONIDISTRICt • ·

5. APPROVING SUPERVISOR:

SID# Ill# nPEO JMME; Sgt. Jason Anzaldua IOoNR: 10358

10. TX: 29404996 008 1011111984

OTHER:

aqM~-----------------------------

RPT--RE: 1.) Possession ofConlralled Substance in PG-1 < 1gram (SJF)

COMPLETE IF TRAFFIC OFFENSE ANO CHEMICAL TEST IS OFFEREO:

IILOCID

NO <IPEMTOR l)f

~ poum DATE/TIME

Possession of Controled Dawson 0810912012

SubStance In PG-1 <1 gram (SJF) 1:50pm

HSC Sec.481.115 (b)

Smwl!;

On Ttulday August 9"', 2012 and at approximately 1:50 pm I, Trooper WaJty Garza, conducted a traffic stop on

a Belgef1997/Cadftlac/4-Dr Car bearing TX1P-DK4T836 for drtvlng on the inproved shoulder. The driver was

idenllfiad through Texas 101: 29404998 to be Vargas. VIdor James. Vargas was 8tDiequentty arrested for

Posaesslon of Coulrolled &mtance in PG-1 <1gram (SJF) after a vehicle search resulted in the <1acovery of (2)

clear blue plastic baggies containing a white crystal lice powder. The substance was field tested •nd was positive

for Methamphetamine. Vwgac was transported to Dawson County jaU In Lamesa,TX. The vehicle was refe88ed

and towed by De La Garza to 602 S.DaUas Ave In Lamesa,TX.

08/22/2014 16:41 80676381'3'3 ~LEY & a!INN PAGE 23/27

n 0

ntP-1 Contiluation (8104) TEXAS DEPARTMENT OF PUBUC SAFETY Page: 2 of3

TEXAS HIGHWAY PATROL OIVIStON

OFFENSE REPORT

IAlE~

INVESTIGATING OFFICER:

COUNlY:

REPORT DATE:

Details:

1. On Thtnday August 9.., 2012 and at appcoximately 1:50pm I, Trooper W.Garza, was working routine

patrol on USB7 approxlmalaly 2 miles North of Lamesa, TX.

2. I observed a Belgei19971Cad1ttar:/4-Dr Car beating TXlP-Dk4T836 drive on the Improved shoulder as It

was traveling southbound.

3. 1made a traffic stop on the vehicle in order to cheek on the coucltions of the dmer.

4. I approadlad the passenger 8kJe door af the vehiCle.

5. 1greeted the driVer and acMsed him of the reason for the traftic atcp.

6. The drMH' verbally identilled l*nself as Vargas, VICtor James DOB: 10/11/1984 SSNt: XXX-XX-XXXX.

7. OWing the roadside lrUrview with Vargas, I obGervec:l indicators of possible criminal activity.

8. Vargas' breathing appeared to be labored as evident ttwough b quick rise and faa of his abdomen.

9. 1asked Vargas where he was headed to and he repflf!d, •san Angelo".

1o. I asked Vargas where he was corning from and he stated, '"Lubbock•.

11. I asked Vargas how tong he had been in Llmboc:k and he stated, "Silce Saturdaf.

12. I asked Vatgaa if he had 1raveled alone and he replied, •No, my wife came with me but she left back

home e.ty".

13. I asked \largas to exit his vehicle and he did so.

14. Alter a cheek of weapons on his person, I asked Vargas to haVe a seat in my patrol car while I prepared

his enfon:ernent action (warning).

15. ~ contil'dng tf1e roadside Interview, 1obserwd Vargas's carotid artery putsating on the Side of his

neck.

1B. I asked Vargas why his wfe had left eartler than tie did and he stated, -we had an argument and her

sister took her back to San Angeto·.

17. After the traffiC stop was complelad, verbal consent to seard'l the vehicle was raquested and granted by

. Vargas.

18. During the vehide sean:h, a blue dUffle bag was located inside the trunk area.

19. The blue duffle bag cantalnad tattoo tools and gear.

20.1nllda the blue duffle bag, a clear plastic bag containing several1 gram empty baggies was dscovered.

21. Upon further Inspection d this dear plastic bag, (4) clear blue baggfes were afsO disCovered.

22. Two of the blue clear plastic baggies contained • useable amount of a white cryatal fike powder berreved

to be Methmnphatamine.

23. I asked Vatgas to coma to the trunk area and he did so.

24. I asked Vargas who the blue duffle bag belonged to and he stated, •It's mine, that's where I keep my

tattoo stuff'.

25. I asked him about the dear plastic bag containing the baggles lncll.lding the clear blue ones with the white

crystal like powder but Vargas denied any knowledge.

2.6. Vargas was placed under arrest and secured ., the front passenger side seat of my patrol car.

27. After a ~hicle inventory (HQ-109), the vehiCle was released and towed by AIMirt Martinez to 602

S.Dallas Ave In l.ameA,TX.

28. The substance was field tested and was positive for Methamphetamine and wil be sent to Midland DPS

Crime Lab fOr final analysis.

29. Vargas was booked in for PossessiOn of ControGed Substance PG-1 < 1g (SJF).

e8/22/2e14 16:41 8067638199 HURLEY & GUINN PAGE 24/27

I a

n n

TEXAS DEPAR'TMENT OF PUBLIC SAFETY Page: 3of3

TEXAS HIGHWAY PATROL DIVISION

OFFENSE REPORT

COUNTY:

REPORT DATE: OBroQ/12

NlgrJg & Addtm; Wll Testtty To;

Texas Depattment of Public Safety M aspects to ihe case

tighway Patrol

Trooper Waty Garza

808 N. Main Ave.

Llmelll, TX. 79331

(808) 872--9494

Description and Custody of Evklep:e:

DescrlDlioo:

1. THP-1 1. Turned in to the Districl Attorney

2. DVD 2. Atlached to THP-1 Case Report

3. Photos 3. Attached to THP-1 case Report

VJcti!Q!i

Name &Addless:

NIA

Ve.btcle!:

Description; Disposition:

Belgei1997/Cadillaci4-0r car bearing TXLP-Dk4T836 reteasec1 and towed by Albert Martinez to 802

S.Dallas Ave in Lamesa,TX

Weapons:

D§scrtption: Disposition:

NIA

08/22/2014 15:41 8057538199 HLRLEV & GUINN PAGE 25/27

Exhibit D

DPS Lab Report

08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 26/27

h ()

TEXAS DEPARTMENT OF PUBUC SAFETY

~I.MOIU1aln'

ro ......,

--~te

........ "',.,...

........

.... & ...... 18.. ,_....,

ContloUecl Substance AnalySis Laboratory Report

Issue o•: o.cem11er 21. 2012

WallyGma Laboratory. 1110-1~1808

r... fighwJiy Palrol Agency t TX128800YBCI08

SOINMain

Count:r: Dawson

lanes~~, TX 71331

otr.nee Ddt: OMWl012

S..U.t \lllrpl, VlctorJamea (1)08 10111184)

It: 9X12 ,allowerwelopa on August 13,2012 by Garza, WlllyVIACertlledMIIII70112970000425712709

Evttp Qpndl!lor'o, 8!!gll! , . . . . . '"' ....pratallpn:

s..-.

01: ~ 0x12 ye~aw enve~opa

lt..-t-AA.: EJchlwhttll• zlpiOC CICNdlllnlng ...... ,..,..

Cofttllnl MeltamphetwnN

Trace net welgl1t

1 of 1 IIams w.n sampled fOr analysla

This report hal been elecllonlcally Pl•paad lind approved bf:

. . . . Siva

Forensic Sdentl8t

TG81 DPS Midland Crime L.abanllt:lq

Page1-of1

- .. 111_!2

Tab #2

Defendant’s Second Request for Hearing (filed Sept. 19, 2014)

Tab #3

First Amended Motion for New Trial (Oct. 3, 2014)

Vargas had legitimate defenses to the stop and the possession allegation that could have

been raised before and during trial, this Court must grant him a new trial.

III. ARGUMENT AND AUTHORITIES

A. Facts

Vargas was arrested on August 9, 2012 by Texas Department of Public Safety

Trooper Wally Garza for possession of a controlled substance less than one gram. He

was indicted on February 13, 2013. The Court appointed Aguilar to represent Vargas.

Prior to pleading guilty, Vargas was told only that he had received an offer of three

years probation, and that if he did not take that, he would receive five years probation.

Aguilar never showed Vargas any discovery whatsoever. Vargas pled guilty.

The discovery in this case was crucial. It revealed that Vargas was stopped because

he travelled on the improved shoulder of Highway 84, and the trooper wanted to

“check on the conditions of the driver.” Exhibit C at 2. After pulling over, Trooper

Garza tells Vargas he will receive a warning for driving on the white line. Video at 6:56.

Nevertheless, Garza continued to detain Vargas and ask him questions completely

unrelated to the initial reason for the stop. Garza eventually asked for, and obtained,

consent to search. A drug dog subsequently arrived and did not appear to alert on

anything in the vehicle. Apparently pursuant to the consent, however, Trooper Garza

and another officer searched the trunk and found baggies of trace residue inside.

Vargas and his mother gave detailed affidavits explaining Aguilar’s performance,

professionalism, and behavior during his representation. For the sake of brevity, those

affidavits are included as exhibits and incorporated with all other exhibits by reference.

Importantly, as explained in his affidavit, Vargas did not want to plead guilty to this

charge. Unfortunately, he felt he had no choice.

B. Standard of Review

A defendant may raise ineffective assistance of counsel in a motion for new trial,

even though it is not a ground specifically enumerated in TEX. R. APP. P. 21.3. State v.

Provost, 205 S.W.3d 561, 566 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The trial

court’s discretion in granting new trials “is almost the only protection to the citizen

against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, [and

the trial] Court should never hesitate to use that discretion whenever the ends of justice

have not been attained by those verdicts.” Mullins v. State, 37 Tex. 337, 339-‐‑40 (1872-‐‑1873)

(emphasis added); State v. Gonzales, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993). A trial

court does not abuse its discretion unless the trial court granted a new trial in an

arbitrary or unreasonable manner without reference to any guiding rules or principles.

See State v. LaSalle, 135 S.W.3d 94, 96 (Tex. App.—Corpus Christi 2003, no pet.).

C. Law on Ineffective Assistance of Counsel

The Sixth and Fourteenth Amendments to the United States Constitution, as well as

Article I, Section 10 of the Texas Constitution, guarantee each defendant the right to the

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1985). The

guarantee of effective assistance of counsel embodied in the Sixth Amendment now

extends to the plea-‐‑bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). This

guarantee includes the “effective assistance of competent counsel” before deciding

whether to plead guilty. Padilla v. Kentucky, 559 U.S. 356, 364 (2010). To prevail on a

claim of ineffective assistance of counsel, Defendant must first show that counsel'ʹs

performance fell below an objective standard of reasonableness, and that there is a

reasonable probability that, but for the attorney'ʹs deficiency, the result of the

proceeding would have been different. See Eddie v. State, supra, 100 S.W.3d at 442, citing

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Even a single error on counsel’s

part can warrant a finding of prejudice. Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.

App. 2005).

Proving prejudice only requires showing that the result of the proceeding would

have been different by less than a preponderance of the evidence. Strickland, 466 U.S. at

694-‐‑96 (“The result of a proceeding can be rendered unreliable, and hence, the

proceeding itself unfair, even if the errors of counsel cannot be shown by a

preponderance of the evidence to have determined the outcome.”); Porter v. McCollum,

130 S.Ct. 447, 455-‐‑456 (2009) (per curiam) (“reasonable probability” standard requires

neither certainty nor showing that “more likely than not” different outcome would have

occurred at guilt-‐‑innocence stage). Because this case deals with a guilty plea, “prejudice

occurs if there is a reasonable probability that, but for counsel’s errors, the defendant

would not have pleaded guilty and would have insisted on going to trial.” United States

v. Juarez, 672 F.3d 381, 385 (5th Cir. 2012) (citations and quotations omitted). For a guilty

plea to be valid, it must have been a voluntary and intelligent choice among the

alternative courses of action available. Hill v. Lockhart, 474 U.S. 52, 56 (1985).

D. Vargas’s Claim Meets Both Prongs of the Strickland Test

Deficient Performance

To establish deficiency, Defendant must show that trial counsel was “not

functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Juarez,

672 F. 3d at 386. This requires the Court to determine whether the representation fell

below an objective standard of reasonableness under then “prevailing professional

norms.” Strickland, 466 U.S. at 688. This inquiry “is necessarily linked to the legal

community’s practice and expectations.” Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010).

As the Supreme Court has long recognized, the American Bar Association standards

provide invaluable guidance on practice and expectations in representing criminal

defendants. See id.

The ABA Standards applicable here illustrate precisely why Aguilar’s

performance was deficient. The ABA Standards relating to defense counsel’s duty to

investigate provide:

Defense counsel should conduct a prompt investigation of the

circumstances of the case and explore all avenues leading to facts relevant

to the merits of the case and the penalty in the event of conviction. The

investigation should include efforts to secure information in the

possession of the prosecution and law enforcement authorities. The duty

to investigate exists regardless of the accused'ʹs admissions or statements

to defense counsel of facts constituting guilt or the accused'ʹs stated desire

to plead guilty.

ABA Standards Relating to Criminal Justice, § 4-‐‑4.1(a) (1991) [hereinafter “ABA

Standards”]. In the context of a guilty plea, the ABA Standards further provide, “Under

no circumstances should defense counsel recommend to a defendant acceptance of a

plea unless appropriate investigation and study of the case has been completed,

including an analysis of controlling law and the evidence likely to be introduced at

trial.” ABA Standards § 4-‐‑6.1(b); see also id. § 14-‐‑3.2 (1997) (“Defense counsel should not

recommend to a defendant acceptance of a plea unless appropriate investigation and

study of the case has been completed.”). Going further, the ABA Standards also set out

what defense counsel should do in advising a client after such an investigation has been

completed:

(a) After informing himself or herself fully on the facts and the law,

defense counsel should advise the accused with complete candor

concerning all aspects of the case, including a candid estimate of the

probable outcome.

(b) Defense counsel should not intentionally understate or overstate

the risks, hazards, or prospects of the case to exert undue influence on the

accused'ʹs decision as to his or her plea.

Id. § 4-‐‑5.1 (emphasis added).

Here, Aguilar’s performance was deficient. He did not advise Vargas of anything

other than what his guilty-‐‑plea options were. He never discussed the facts with him. No

notes appear in the file. He never discussed or filed a motion to suppress. He never

even showed Vargas any of the discovery. The Fifth Circuit has made clear, this is not

acceptable conduct for defense attorneys. Moore v. Johnson, 185 F.3d 244, 261 (5th Cir.

1999) (“The Court is, therefore, not required to condone unreasonable decisions

parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of

counsel when it appears on the face of the record that counsel made no strategic

decision at all.”). No justification exists for not discussing the facts with your client. This

Court should not condone or invent one.

Finally, much like “informed consent” in the medical field, “[c]ounsel must

ensure that guilty pleas are entered only as an informed and voluntary choice, by

actually and substantially assisting the defendant in deciding whether to plead guilty.”

United States v. Juarez, 672 F.3d 381, 388 (5th Cir. 2012). Actual, substantial assistance can

only happen when “appropriate investigation and study of the case has been

completed, including an analysis of controlling law and the evidence likely to be

introduced at trial.” ABA Standards § 4-‐‑6.1(b). Indeed, it is the lawyer’s job to,

provide the accused an understanding of the law in relation to the facts.

The advice he gives need not be perfect, but it must be reasonably

competent. His advice should permit the accused to make an informed

and conscious choice. In other words, if the quality of counsel'ʹs service

falls below a certain minimum level, the client'ʹs guilty plea cannot be

knowing and voluntary because it will not represent an informed choice.

And a lawyer who is not familiar with the facts and law relevant to his

client'ʹs case cannot meet that required minimal level.

United States v. Cavitt, 550 F.3d 430, 440-‐‑41 (5th Cir. 2008) (citations and quotations

omitted). Aguilar’s performance was deficient.

Prejudice

The second part of the Strickland analysis requires Vargas to show that Aguilar’s

performance prejudiced him. Vargas must demonstrate that there is a “reasonable

probability” that but for Aguilar’s errors, he “would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). A reasonable

probability is “a probability sufficient to undermine confidence in the outcome.”

Strickland v. Washington, 466 U.S. 668, 694 (1984). This is more than a mere possibility

but “less than a preponderance of the evidence that the error affected the trial.” United

States v. Juarez, 672 F.3d 381, 388 (5th Cir. 2012) (citation omitted).

Vargas had legitimate potentially exonerating defenses. First, the stop was

questionable at best, if not outright illegal. Second, the continued detention of Vargas

was unreasonable. United States v. Macias, 658 F.3d 509, 522 (5th Cir. 2011) (holding that

trooper’s asking questions unrelated to initial reason for the stop illegally prolonged

traffic stop). Third, the fact that the “affirmative links” doctrine was never discussed

with Vargas is devastating, especially given that multiple people had access to and

drove Vargas’s vehicle. Finally, Vargas was not actually in possession of any drugs. No

proof existed that he knew he possessed anything other than empty baggies containing

“trace,” immeasurable amounts of a controlled substance.

Vargas is not required to prove his innocence, or even that he would have received a

better outcome. Rather, he is only required to prove that he would not have actually

pled guilty had he been made aware of his options by a standard less than a

preponderance of the evidence. Vargas’s affidavit makes clear that he would not have

pled guilty and far exceeds this standard. Vargas was prejudiced.

E. Vargas’s ineffective assistance claim was not waived by his guilty plea.

Vargas anticipates the State will argue that any claims of ineffective assistance of

counsel were waived when he pled guilty to the offense, but this is no longer the law.

The Supreme Court has recently addressed ineffective assistance of counsel in the

context of guilty pleas. Padilla v. Kentucky, 559 U.S. 356 (2010); Missouri v. Frye, 132 S.Ct.

1399 (2012). The Padilla court explained that, “the negotiation of a plea bargain is a

critical phase of litigation for purposes of the Sixth Amendment right to effective

assistance of counsel.” Padilla, 559 U.S. at 373. There, the Court held that an attorney’s

failure to properly advise the defendant of collateral immigration consequences

stemming from a guilty plea constituted ineffective assistance. Id. at 375. In doing so the

Court necessarily overruled prior authority holding that, “once a guilty plea has been

entered, all nonjurisdictional defects in the proceedings against a defendant are

waived.” Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Any remaining doubt over

the calculus of the Court’s ruling in Padilla was removed by Frye: “[Padilla] also rejected

the argument made by petitioner in this case that a knowing and voluntary plea

supersedes errors by defense counsel.” Frye, 123 S.Ct. at 1406. In other words, the

Supreme Court now routinely rejects Estelle’s logic that if a plea is “voluntary, it follows

that claims of ineffectiveness unrelated to the guilty plea are waived.” Estelle, 711 F.2d

at 682 (denying ineffective assistance claims based on failure to investigate prior to

advising defendant to plead guilty). And the Fifth Circuit has followed suit. United

States v. Juarez, 672 F.3d 381 (5th Cir. 2012).

In Juarez, the Court held that an attorney’s failure to investigate a potential

defense was not cured by a subsequent guilty plea. Id. at 389. There, Juarez pled guilty

both to lying about his U.S. citizenship on an application to purchase firearms and to

illegal re-‐‑entry. Id. at 384. Although Juarez’s mother was a naturalized citizen, Juarez’s

trial counsel never advised him that derivative citizenship was a defense to both of

these offenses. Id. at 385-‐‑86. Trial counsel also “did not know that Juarez could be a U.S.

citizen as other people did not inform him of this possibility.” Id. at 385. Although the

legal interpretation of whether Juarez was able to qualify for the derivative citizenship

defense was unsettled, the Fifth Circuit held that at the time of Juarez’s pleas, “a

derivative citizenship defense was plausible.” Id. at 387. The Juarez court concluded,

Juarez'ʹs guilty pleas were not entered knowingly or voluntarily because

[trial counsel] advised him without investigating derivative citizenship.

“[A defendant] who does not receive reasonably effective assistance of

counsel in connection with his decision to plead guilty cannot be said to

have made that decision either intelligently or voluntarily.”

Id. at 390 (quoting Mason v. Balcom, 531 F.2d 717, 725 (5th Cir.1976)).

Much like trial counsel in Juarez had a duty to investigate the facts and law

underlying a “plausible” defense, Aguilar had a duty to investigate the facts and law

underlying legitimate, potentially exonerating defenses for Vargas. Because Aguilar

failed to do this — a decision contrary to established federal precedent and

unsupported by any reasonable argument — Vargas was denied constitutionally

effective assistance of counsel.

III. CONCLUSION & PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court set this

matter for an evidentiary hearing and at the close thereof, grant this motion for new

trial, and vacate the judgment and sentence in this case.

Respectfully submitted,

Hurley, Guinn & Sellers

By: _____________________________

Frank Sellers

Texas Bar No. 24080305

1805 13th Street

Lubbock, Texas 79401

P: 806.771.0700

F: 806.763.8199

ATTORNEYS FOR DEFENDANT

Certificate of Service

I certify that today, October 1, 2014, a copy of the foregoing was mailed to the

Dawson County District Attorney’s Office.

_____________________________

Frank Sellers

Certificate of Presentment

I certify that today, October 1, 2014, a copy of the foregoing was emailed to the

Judge of this Court, along with a blank Order Setting Hearing.

_____________________________

Frank Sellers

INDEX OF EXHIBITS

A. Affidavit of Victor Vargas

B. Affidavit of Darcy Vargas

C. Trooper Garza’s Report

D. DPS Lab Report

E. Contract for Indigent Defense in the 106th Judicial District Court of Texas (file

marked December 9, 2013)

F. Letter from Judge Schildknecht to Joel Lieurance, Policy Monitor at TIDC (July

19, 2013)

G. Texas Indigent Defense Commission, Review of Gaines County’s Indigent

Defense Systems (June 11, 2013)

H. Affidavit of Philip Wischkaemper

I. Affidavit of Frank Sellers

Exhibit A

Affidavit of Victor Vargas

AFFIDAVIT

THE STATE OF TExAS §

. §

COUN1YOF ~°':to(\c_, §

Before me, the undersigned authority, personally appeared Victor Vargas, who upon his oath

deposed and stated the following:

My name is Victor Vargas. I am over the age of 18, of sound mind, competent to make this

affidavit, and have personal knowledge of the facts below. I have prepared this affidavit with the

help of my new lawyer, Frank Sellers.

I was driving from Lubbock, TX to San Angelo, TX on August 9, 2012. I was in a lowered

Cadillac Coupe Deville that had previously been used by my brother and mend. As I was driving

on Highway 87, I noticed an officer on the other side of the road. The officer drove up beside me

and remained directly next to my vehicle for a short period of time. The officer then pulled me

over because he believed that I "looked fatigued." After the officer explained to me that I would

receive a warning and receiving the same, the officer asked for consent to search. Thinking there

was nothing to hide, I gave the officer this consent

There were three to four large suitcase-type bags located in the trunk of the vehicle. Small

plastic baggies were found in one bag that also contained my tattoo equipment There were many

clean, unused small plastic baggies within this larger bag. However, two small green baggies

were mixed in amongst the clean baggies. Upon inspecting these two green baggies, the officer

detected a tiny amount of what he believed was drug residue on the inside. I was then arrested

for felony possession of a controlled substance less than I gram. I was held in Dawson County

Jail with a $10,000 bond. I was unable to get a bond because I was an out of town traveler and

considered a ffight risk. My only option was to wait in jail until my attorney and I could sort

everything out

While in jail, I received a letter from Artie Aguilar notifying me that he would be serving as

my court appointed lawyer in this matter. When I received this letter I had my wife, Crystal

Vargas, contact Artie almost immediately. After many attempts, she was unable to reach him.

After about 70 days in jail Crystal tried many more times to contact Artie, each time was

unsuccessful. Crystal was finally able to reach Artie. But Artie told Crystal that he couldn't talk

to her because all the infonnation in my case was confidential.

Other than Artie's first letter, I had not heard from him in any way while I was in jail. After

almost 90 days I wrote a letter to Artie, informing him that I had not been indicted and that I

wanted to file a writ of habeas corpus. I never received a letter in return from Artie, but two

weeks later received notice that I would be having a hearing for habeas relief. Artie and I were

both present for this hearing. This was the first time I had spoken to Artie aside from the initial

letter he sent me. In November201~ the judge granted me habeas relief because I still had not

yet been indicted. With some stipulations, I was released from jail.

After my release, I called and sent letters to Artie hoping to resolve my legal issues. Also, I

was planning a move from San Angelo to Houston early in 2013 and knew that-as a condition

of my release-I would need to inform both my attorney and the county. Each time I tried to

reach Artie and inform him of this move I was unsuccessful. I reached Artie's secretary (his

father) multiple times and left mesages. However, I never received a return phone call or any

letters from Artie. After my November 2012 habeas hearing, I was unable to get in contact with

Artie again until February of 2014.

In February of2014, I was pulled over for having expired license plates in Houston and

subsequently mested due to a pending indicbnent in Dawson County. Artie had not notified me

of this indictment I was never told that there was even a possibility of trial. At this time, my wife

and mother (Darcy Vargas) began calling Artie's office in hopes of getting more details on the

indictment. Both were unsuccessful on nearly every attempt. My mother was finally able to get a

hold of Artie, only to be cussed out for calling too much and then hung up on.

The next time I saw Artie was in April of 2014 at my arraignment in Dawson County. I was

told that I would need to come back and enter my plea in June of2014 at 9:00 A.M. Although I

now lived in Houston, I drove to Dawson County and arrived at the scheduled time. I was told

that by Artie that the District Attorney wam't ready at all and that they didn't have anything

prepared. This hearing was rescheduled and I was forced to drive all the way back to Houston.

The next court date should have been July 2, 2014. Artie told me that he was going to try to

set up a way where I could avoid having to drive in from Houston again. In late June, I received

a call from Artie saying that I had received a second plea offer. At this time, I told Artie that I

didn't even knew of the first plea offer. Artie told me that I had been previously been offered a

plea of S years state jail confinement with 4 years of or community supervision. I do not know

when Artie received the first offer. Artie told me that he had "already told them that you weren ,t

going to take il,,

The second plea offer was for 2 years of state jail confinement with 3 years of community

supervision. I asked Artie if he would be able to get anything less. He told me that I was lucky

they offered me this because for a while they dido 't want to come down from S years. Once

again, I was unaware that prior negotiations and/or offers had ever taken place. I was basically

told to take it or leave it on this second offer. Artie also told me that he would be able to move

my court date from July 2, 2014, to July23, 2014. After speaking with my wife, I decided that I

had no choice but to take the second offer.

From my original arrest on August 9, 2012, until July 23, 2014, almost all of the contact that

I have ever had with Artie has been inside the court room. I have never seen any discovery

(police reports, lab report, or video). I do not know if or when Artie got the discovery.

Throughout this entire process, Artie bas been nearly impossible to reach.

Artie told me that I had no choice but to either take the final deal or go to trial and get the

maximum sentence. I asked him about whether the stop was legal. I asked him about the lab

report and whether there was even enough to charge me. Artie never discussed any options other

than pleading guilty with me.

Amdavlt or Victor Vargas- Page 2

While leaving the courthouse after my plea, attorney Frank Sellers overheard my Mom and I

arguing about the plea deal I had just been forced to take. Mr. Sellers inquired about my limited

knowledge of the facts of my case. He agreed to help me file a motion for new trial without any

cost to me.

Mr. Sellers received the discovery ftom Artie. He then showed it to me. This was the first

time I had seen a police report, lab report, and video. He also explained to me that the stop and

consent to search my vehicle appeared to be unconstitutional. He said that these were legitimate

defenses that could have been raised both before trial in front of the judge at a suppression

hearing, as well as in ftont of the jury. Additionally, he explained the legal concept of

"affinnative links," requiring the State to link me to anything in the car because multiple people

had access to the vehicle.

I am not guilty of the charge I pied guilty to. Had Artie explained anything to me about the

suppression bearing or affirmative links, and/or if I had had the opportunity to view the video

and see the reports, I would not have pied guilty. Instead, I would have insisted on going to trial

- regardless of the outcome.

Subscribed and sworn to before me on August 1±, 2014, by Victor Vargas.

MAYRA AVILA

Notary Pubtlc

STATE OF TEXAS

My Camm. Exp. OM&-18

Amdavlt of Victor Vargas- Page 3

Exhibit B

Affidavit of Darcy Vargas

AFFIDAVIT

DIE STATE OF TEXAS §

Before me, the undersigned authority, personally appeared Darcy Vargas, who upon her oath

deposed and stated the following:

"My name is Darcy Vargas. I am over the age of 18, of sound mind, competent to make this

affidavit, and have personal knowledge of the facts below. I have prepared this affidavit with the

help of my son's new lawyer, Frank Sellers.

I, Darcy Vargas, have been involved in this case ever since my son Victor was arrested in

Houston and infonned that he had a warrant in Dawson County. Prior to the anest in Houston, I

had called Artie Aguilar maybe once or twice before. This previous call was just to notify Artie

that Victor planned to move in with me in Houston. Because nobody was able to get a hold of

Artie, Victor and I decided the best thing to do was to send a letter to his office with the address

of Victor's new residence in Houston.

After Victor's arrest, I called Artie many times hoping to get some infonnation about the

warrant in Dawson County. I called his office many, many times with no answer. I was often

unable to leave voicemails because the phone would just keep ring endlessly. After many failed

attempts, I was finally able to reach a male who seemed to be acting as Artie's secretary. 1 cannot

recall if this man told me his name or not. I told the secretary that I needed to speak with Artie

immediately because we were not aware that a warrant had been issued in Dawson County.

Within a day or two, I spoke with Artie for the first time. He called in the afternoon and

asked what I wanted, to which I said we needed infonnation on Victor's case. Artie responded

that there had been a sealed indictment and that it was not his responsibility to infonn Victor

about iL After a brief conversation about why we weren't made aware ofthe sealed indicbnent,

Artie finally asked me, "What do you want?" I answered that I just wanted infonnation, records,

or anything that could help get my son out ofjail in Houston. I will never forget his response. He

responded, "Access Denied. Now what do you want?" Once again r requested the same

infonnation. Artie then said, "Look lady, quit being a bitch." Shocked by how unprof~onal he

was, I responded, "Excuse me? You did not just call me the 8-Word." Artie then said, "Well

lady, you heard me" and hung up the phone on me. I found this disrespectful conduct particularly

surprising coming from a lawyer.

In June of2014, Artie called me and said that I needed to have Victor call him because he

had been given a plea offer. Victor called Artie back and was able to get a hold of Artie. This is

when Victor was told of the offer that he eventually accepted.

Before accepting this plea, neither Victor nor I were able to view any police reports, any lab

reports, or the video ofVictor's stop and arrest I found Mr. Aguilar's behavior unacceptable and

oflowest caliber ofany professional I have ever dealt with. His legal work was not much better."

Subscribed and sworn to before me on AugustJL 2014, by Darcy Vargas.

MAYRA AVILA

Notaty PubDc

STATE OF TEXAS

~Comm. exp. OM•1a

Amdavlt of Darcy Varaas- Paae 2

Exhibit C

Trooper Garza’s Report

\•

THP·1 (8/04) QXAS DEPARTMENT OF PUBLIC SAFf:Q TRAFFIC

TEXAS HIGHWAY PATROL DIVISION _.!__ CRlMINAL

OFFENSE REPORT SCHOOL NOTIFICATION

REQUIREO(ART. t5.27CCP)

REPORT DATE: 08/09/12

FILE TITLE INVESTIGATING OFFICER:

Vargas, Victor James

522 e. 24111 Street

TYPmNAME: Wa~~Ga

, . 10.NR: 12989

3. San Angelo, TX 76903 SIGNATURE:

4. W/M AR-..--·...,;;;o;;ii4....,A--.1111-------

REGIONIDISTR-IC_t__T11-.......

5. APPROVING SUPERVISOR:

SID# OL# lYPED NAME: Sgt. Jason Anzaldua 10.NR: 10356

ID# TX: 29404996 DOB 10/11/1984

OTHER: SIGNATURE:

--~-------------------------

RPT-RE: 1.) Possession of Controlled Substance in PG-1 < 1gram (SJF)

COMPLETE IF TRAFFIC OFFENSE AND CHEMICAL TEST IS OFFERED:

1E8T OFFERED: BREATH BlOOD URINE TES1' GNEN: BREATH BLOOD REFUSED

1'ES1'RESUl.T: t) - - - 2) - - - NO OPERATm~I------------------

DEFENQANTCSl OFFENSE<Sl COUNJY DATE/TIME

Vargas, Victor James Possession of Controlled Dawson 08/09/2012

Substance In PG-1 <1 gram (SJF) 1:50 pm

HSC Sec.481.115 (b)

Smopsls;

On Thursday August 9111, 2012 and at approximately 1:50 pm I, Trooper Wally Garza, conducted a traffic stop on

a Belge/1997/Cadfllac/4-Dr car bearing TXLP-DK4T836 for driving on the Improved shoulder. The driver was

Identified through Texas ID#: 29404996 to be Vargas, Victor James. Vargas was subsequently arrested for

Possession of Controlled Substance in PG-1 <1gram (SJF) after a vehicle search resulted In the discovery of (2)

clear blue plastic baggfes containing a white crystal like powder. The substance was field tested and was positive

for Methamphetamine. Vargas was transported to Dawson County jafl In Lamesa.TX. The vehfde was released

and towed by De La Garza to 602 S.Dallas Ave In Lamesa,TX.

n 0

THP-1 Continuation (8/04) TEXAS DEPARTMENT OF PUBLIC SAFETY Page: 2of3

TEXAS HIGHWAY PATROL DIVISION

OFFENSE REPORT

FILE TITLE: COUNTY:

INVESTIGATING OFFICER: REPORT DATE: 08/09/12

Datalls:

1. On Thursday August 911, 2012 and at approximately 1:50pm I, TrooperW.Garza, was working routine

patrol on US87 approximately 2 miles North of Lamesa, TX.

2. I observed a Belge/1997/Cadfllac/4-Dr Car bearing TXLP-Dk4T836 drive on the Improved shoulder as it

was traveling southbound.

3. I made a traffic stop on the vehicle in order to check on the conditions of the driver.

4. I approached the passenger side door of the vehicle.

5. I greeted the driver and advised him of the reason for the traffic stop.

6. The driver verbally identified himself as Vargas, Victor James DOB: 10/11/1984 SSN#: XXX-XX-XXXX.

7. During the roadside Interview with Vargas, I observed indicators of possible criminal activity.

8. Vargas' breathing appeared to be labored as evident through the quick rise and fall of his abdomen.

9. I asked Vargas where he was headed to and he replied, ·san Angeloa.

10.1 asked Vargas where he was coming from and he stated, •Lubbock".

11. I asked Vargas how long he had been in Lubbock and he stated, ·since Saturday".

12. I asked Vargas if he had traveled alone and he replied, aNo, my wife came with me but she left back

home early".

13. I asked Vargas to exit his vehicle and he did so.

14. After a check of weapons on his person, I asked Vargas to have a seat in my patrol car while I prepared

his enforcement action (warning).

15. Whlle continuing the roadside interview, I observed Vargas's carotid artery pulsating on the side of his

neck.

16. I asked Vargas why his wife had left earlier than he did and he stated, "We had an argument and her

sister took her back to San Angelo•.

17. After the traffic stop was completed, verbal consent to search the vehicle was requested and granted by

. Vargas.

18. During the vehicle search, a blue duffle bag was located inside the trunk area.

19. The blue duffle bag contained tattoo tools and gear.

20. Inside the blue duffle bag, a clear plastic bag containing several 1 gram empty baggies was discovered.

21. Upon further Inspection of this clear plastic bag, (4) clear bfue baggies were also discovered.

22. Two of the blue clear plastic baggies contained a useable amount of a white crystal like powder believed

to be Methamphetamfne.

23. I asked Vargas to come to the trunk area and he did so.

24. I asked Vargas who the blue duffle bag belonged to and he stated, "It's mine, that's where I keep my

tattoo stufr.

25. I asked him about the clear plastic bag containing the baggies including the clear blue ones with the white

crystal like powder but Vargas denied any knowledge.

26. Vargas was placed under arrest and secured in the front passenger side seat of my patrol car.

27. After a vehicle inventory (HQ-109), the vehicle was released and towed by Albert Martinez to 602

S.Dallas Ave in Lamesa,TX.

28. The substance was field tested and was positive for Methamphetamine and will be sent to Midland DPS

Crime Lab for final analysis.

29. Vargas was booked in for Possession of Controlled Substance PG-1<1g (SJF).

I •

THP-1 Continuation (8/04) TEXAS DEPARTMENT OF PUBLIC SAFETY Page: 3of3

TEXAS HIGHWAY PATROL DMSION

OFFENSE REPORT

FILE TITLE: COUNTY:

INVESTIGATING OFFICER: REPORT DATE: 08/09/12

wttnaases:

Name &Address: Will Testlfv To:

Texas Department of Public Safety All aspects to the case

Highway Patrol

Trooper WaRy Garza

608 N. Main Ave.

Lamesa, TX. 79331

(806) 872-9494

Description and Custody of Evidence:

Descrlatlon: DISPQsltlon:

1. THP-1 1. Turned in to the District Attorney

2. DVD 2. Attached to THP-1 Case Report

3. Photos 3. Attached to THP-1 Case Report

Victims:

Name &Address:

N/A

Vehicles:

Descrlotion: Disoosition:

Belge/1997/Cadillac/4-Dr Car bearing TXLP-Dk4T836 rereased and towed by Albert Martinez to 602

S.Dallas Ave in Lamesa.TX

Weaoons:

Description: Disposition:

NIA

Exhibit D

DPS Lab Report

TEXAS DEPARTMENT OF PUBLIC SAFETY

CRIME LA80RA10RY

POBox4367

M!dland, TX 79704

Volc:o G2-498-2t80 Fu 4Uo488.JUS

Mldl&ndCrfmet.ab@dps.toxas.gov

81lM!H C. UCCMW COKMISSION

OlaECTCR A. C~L!OH. CHAIR

DAVID O. BNCEA CMIH MARCY BARTH

QCBIYl MadlAIDI! """SRONI

DEPU1V Dlla!CTCAS AU.Mt& POWN8KY

Controlled Substance Analysis Laboratory Report

Issue Date: December 28, 2012

Wally Garza Laboratory# MID-1208-01608

Texas Highway Patrol Agency# TX12660DYB008

608N Main County: Dawson

Lamesa. TX 79331

Offense Date: 08/0912012

Suspectls>; Vargas, Victor James (DOB 10/11/84)

Requested Analysis: Examine for the presence of Controlled Substances

SubmJsslqn lnfonnaflon:

01: 9x12 yellow envelope on August 13, 2012 by Garza, WaDy VIA Certified Mail 70112970000425712709

Eyldtnce Dascdptlon. Results of Analyafa and lntemretatlon:

01: Property Sealed 9x12 yellow envelope

01.01-AA: Exhlblt#1 Blue zlploc containing white 19Gldue

Contains Methamphetamlne

Trace net weight

1 of 1 Items were sampled for analysis

This report has been electronlcally prepared and approved by:

Marissa SBva

Forensic Scientist

Texas DPS Mfdland Crime Laboratory

ACCREOnEO BVTHEAME!RICAN SOCIE1YOFCRIMEtA80RAnmYOtRSCRmS • tABACCREOl'l'ATIOH BOARD

lllB!lllllmf!IDllODmJllllIDIWllll!IDHllltlil(l(lllfD COURTESY • SERVICE • PROTECTION Page 1-of1

fJGP8 IUl.t2

Exhibit E

Contract for Indigent Defense in the 106th Judicial District Court of Texas

(file marked December 9, 2013)

CoNTRACT FOR INDIGENT DEFENSE

THE 106TH JUDICIAL DISTRICT CoURT OF TEXAS

DAWSON, GAINES, GARZA AND LYNN COUNTIES

I. INTRODUCTION

The county of Dawson ("COUNTY',) and The Law Offices of Arthur Aguilar, Jr.

("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial

District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to

represent indigent criminal defendants in COUNTY. This agreement establishes conditions

under which ATTORNEY will provide legal representation for indigent criminal

defendants in COUNTY.

2. SCOPE OF WORK

ATIO RNEY will provide legal representation for indigent criminal defendants in

COUNTY for felony cases only. Under this contract, a felony will be considered to be any

criminal offense that carries a possible punishment of confinement in excess of one year or

that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First

Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will

represent only those defendants designated by DISTRICT JUDGE, and no file shall be

opened or appearance made under this contract except by order of DISTRICT JUDGE.

ATIO RNEY shall represent such defendants in the trial court and on direct appeal in any

of the appellate courts to which such case is appealed. Post conviction writs are

extraordinary and are NOT covered in this contract. Capital Murder Trials where the State

elects to pursue the Death Penalty are NOT covered in this contract. This contract does

not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an

indigent defendant has a misdemeanor charge as well as a felony charge, ATIO RNEY will

handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor

charge is taken into account in determining sentence for the felony offense as provided in

Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the

indigent defendant to be under this contract for only the felony case. ATTORNEY shall

meet qualifications and shall devote time, attention and energies to the performance of

duties under this contract pursuant to the provisions of the I 06th Judicial Districfs Local

Indigent Defense Plan, including but not limited to the qualifications set out in the

Application/Affidavit for the I 06th Judicial District Court Attorney Appointment List.

DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure

that the quality and effectiveness of ATTORNEY's representation of defendants is not

compromised and that each defendant is being provided effective representation. If

DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is

falling below that which is expected by the Court, DISTRICT JUDGE will make

adjustments to ATTORNEY's caseload. ATIORNEY's caseload under this contract shall

not exceed 400 actual cases over the entire four counties of the 106th Judicial District.

3. CONTRACT PERIOD

This agreement shall commence on January 1, 2014, and shall terminate September 30,

2014, unless terminated earlier by either party. The parties shall have an option to renew

the contract for additional years, and prior to July 1, 2014, the parties will revisit the

contract to consider any desired modifications to the terms and conditions of this contract.

4. CONSIDERATION

The parties agree that if this contract covered the legal representation for indigent criminal

defendants in all four counties of the 106th Judicial District, the total consideration for legal

representation at the trial court level would be $49,500.00 for the nine month contract

period.

The consideration for legal representation at the trial court level under this contract

between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,

payable in monthly installments, based on indigent defense provided under the 2013

Contract for Indigent Defense in each of the four counties of the 106th Judicial District.

COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount

for COUNTY's pro rata share as follows:

Dawson County $18,062.55 for contract $ 2,006.95 monthly

Gaines County $ 16,844.85 for contract $ 1,871.65 monthly

Garza County $ 9,207.00 for contract $ 1,023.00 monthly

Lynn County $ 5,385.60 for contract $ 598.40 monthly

The above amount is the total consideration to be paid by COUNTY for legal

representation of indigent criminal defendants at the trial court level for all cases opened

during the term of this contract, and ATTORNEY shall furnish at his own cost all

equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and

all other trial court expenses except as provided otherwise in this contract.

In consideration for ATTORNEY's appellate representation of COUNTY's indigent

criminal defendants under this contract, COUNTY agrees to pay additional ATTORNEY's

fees for legal services at the rate accepted in this area for such services and approved by

DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for

representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses

for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.

COUNTY shall not be obligated for any other additional amount or expenses unless

specifically designated in this agreement or required by law, detailed in the Request to Pay

Counsel, and approved by DISTRICT JUDGE.

If the renewal option is exercised, COUNTY's designated monthly percentage will be

adjusted to reflect the number of COUNTY's cases under the contract in trial court

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE2

compared to the number of trial court level cases under the contract in the entire 106th

Judicial District during the previous contract.

5. EXPERTS, INVESTIGATORS, AND INTERPRETERS

ATIORNEY will obtain prior approval of expenses for investigation and for experts by

filing a motion in the 106th Judicial District Court, stating the need for such assistance and

the estimated expense. Investigative or expert expenses incurred with prior court approval

shall be reimbursed as provided in the order granting approval. Investigative or expert

expenses incurred without prior approval shall be reimbursed only if necessarily and

reasonably incurred. ATIORNEY will arrange for interpreters when the need exists.

Expenses for interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.

6. CHANGE OF VENUE

If there is a change of venue which moves a case from the boundaries of the 106th Judicial

District, then ATIORNEY will be allowed his actual expenses in regard to lodging, meals,

court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE

in the original jurisdiction. Any such expenses should be discussed, if at all possible, with

DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)

outside the 106th Judicial District will be paid at the prevailing state rate. All other fees

designated herein will be the responsibility of and paid by the County of original

jurisdiction.

7. ASSIGNMENT

ATIORNEY may employ an associate attorney(s) to assist in representing defendants

under this contract with the prior consent and approval of DISTRICT JUDGE, but only

at ATIORNEY's sole expense. ATIORNEY shall not assign its entire rights under this

contract or delegate the entire performance of its duties under this contract.

8. CONFLICTS

ATIORNEYwillnotifytheofficeofDISTRICTJUDGEassoonasATIORNEYisaware

of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be

responsible to set the case for a hearing regarding the ethical conflict for consideration if

deemed necessary by the Court.

9. REPORTS

ATIORNEY shall compile a year-end report giving the number of indigent defendants

served, the number of individual cases handled, the types of cases, the disposition of the

cases handled, and any other reporting information required to be in compliance with the

law. Such report shall identify the cases by county and shall include cases for the other

contracting counties in the 106th Judicial District as well as COUNTY's cases. For approval

and payment, ATIORNEY shall provide itemized interim progress reports to COUNTY

and DISTRICT JUDGE as requested for indigent defense expenditure reports. Payment

shall be made by COUNTY after approval by DISTRICT JUDGE.

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE3

10. ATTORNEY'S PRIVATE PRACTICE

It is agreed that ATTORNEY may maintain a private practice. It is further agreed and

understood that ATTORNEY's private practice will not interfere in any material manner

with the indigent criminal defense cases provided for in this contract.

11. TERMINATION

If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a

majority vote of the Commissioners Court of COUNTY. Either party may terminate with

90 days notice by Certified Mail to the other party. ATTORNEY shall complete all cases

that are open as of the date of the termination notice unless relieved or replaced by

DISTRICT JUDGE.

12. AMENDMENTS

Any alterations, additions or deletions in the terms and conditions of this contract shall be

by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY

and the Commissioners Court of COUNTY.

13. SEVERABILITY

If any provision of this contract is construed to be illegal or invalid, such construction will

not affect the legality or validity of any of its other provisions. The illegal or invalid

provision will be deemed severable and stricken from the contract as if it had never been

incorporated herein, but all other provisions will continue.

14. SURVIVALOFTERMS

Termination of this contract for any reason shall not release either party from any liabilities

or obligations set forth in this contract that the parties have expressly agreed in writing shall

survive any such termination or which by their nature would be intended to be applicable

following such termination.

15. INDEPENDENT CONTRACTOR

It is agreed that ATTORNEY is an independent contractor and that this contract does not

create an employment relationship between COUNTY and ATTORNEY. ATTORNEY,

not COUNTY, will be responsible for appropriate payment of social security taxes and

federal income taxes applicable to the consideration received by ATTORNEY under this

contract.

COUNTY shall not be liable or responsible and shall be saved and held harmless by

ATTORNEY from and against any and all suits, actions, claims or liability of any character

arising out of the performance of ATIORNEY under this contract, including claims and

damages arising from acts of negligence or acts of malpractice of ATTORNEY.

16. NO WAIVER OF SOVEREIGN IMMUNITY

THE PARTIES EXPRESSLY AGREE THAT NO PROVISION OF THIS CONTRACT

IS IN ANY WAY INTENDED TO CONSTITUTE AWAIVER BY COUNTY OR THE

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE4

STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY

THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF

LAW.

17. GOVERNING LAW AND JURISDICTION

This contract shall be construed in accordance with and governed by the laws of the State

of Texas, except for its provisions regarding conflicts of laws. The venue of any suit

brought for any breach of this contract is fL\'.ed in any court of competent jurisdiction in

Dawson County, Texas. All payments under the contract shall be due and payable at

ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement

between the parties. No prior agreement of understanding, oral or otherwise, of the parties

or their agents will be valid or enforceable unless embodied in this contract. The County

Judge of COUNTY has signed this agreement pursuant to the authority placed in him by

the Commissioners Court. Any signatory executing this contract on behalf of either

ATTORJ.'JEY or COUNTY warrants and guarantees that he has authority to execute this

contract on behalf of ATTORNEY or COUNTY and to validly and legally bind

ATTORNEY and COUNTY to the provisions of this contract.

EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.

COUNTY:

.."' . ' ... .. ·.

ATTEST:

. ... . . ... '

~ .

GaloJt.Mv \Jn1 g. ) Ox./;· <1&\()1A&1\J{A~ Date: _ _._W

"""'--_-_

!tf-

_ [,.....l"-----

Gloria Vera, Cow1ty Clerk, Dawson County

ATTORNEY:

THE LAW OFFICES OF AR.THUR AGUILAR, JR.

By:-------1.,~

~~~

~9--

Date:

{ L ,_ ( ~ f)

~2.~

Carter T. Schildknecht, District Judge

Date:])e~W -4-)

LO L3

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGES

CONTRACT FOR INDIGENT DEFENSE

THE 106TH JUDICIAL DISTRICT CoURT OF TEXAS

DAWSON, GAINES, GARZA AND LYNN CoUNTIES

1. INTRODUCTION

The county of Gaines ("COUNTY") and The Law Offices of Arthur Aguilar, Jr.

("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial

District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to

represent indigent criminal defendants in COUNTY. This agreement establishes conditions

under which ATTORNEY will provide legal representation for indigent criminal

defendants in COUNTY.

2. SCOPE OF WORK

ATTORNEY will provide legal representation for indigent criminal defendants in

COUNTY for felony cases only. Under this contract, a felony will be considered to be any

criminal offense that carries a possible punishment of confinement in excess of one year or

that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First

Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will

represent only those defendants designated by DISTRICT JUDGE, and no file shall be

opened or appearance made under this contract except by order of DISTRICT JUDGE.

ATTORNEY shall represent such defendants in the trial court and on direct appeal in any

of the appellate courts to which such case is appealed. Post conviction writs are

extraordinary and are NOT covered in this contract. Capital Murder Trials where the State

elects to pursue the Death Penalty are NOT covered in this contract. This contract does

not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an

indigent defendant has a misdemeanor charge as well as a felony charge, ATTORNEY will

handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor

charge is taken into account in determining sentence for the felony offense as provided in

Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the

indigent defendant to be under this contract for only the felony case. ATTORNEY shall

meet qualifications and shall devote time, attention and energies to the performance of

duties under this contract pursuant to the provisions of the 106th Judicial District's Local

Indigent Defense Plan, including but not limited to the qualifications set out in the

Application/Affidavit for the 106th Judicial District Court Attorney Appointment List.

DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure

that the quality and effectiveness of ATTORNEY's representation of defendants is not

compromised and that each defendant is being provided effective representation. If

DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is

falling below that which is expected by the Court, DISTRICT JUDGE will make

adjustments to ATTORNEY's caseload. ATTORNEY's caseload under this contract shall

not exceed 400 actual cases over the entire four counties of the 106th Judicial District.

3. CONTRACT PERIOD

This agreement shall commence on January 1, 2014, and shall terminate September 30,

2014, unless terminated earlier by either party. The parties shall have an option to renew

the contract for additional years, and prior to July 1, 2014, the parties will revisit the

contract to consider any desired modifications to the terms and conditions of this contract.

4. CONSIDERATION

The parties agree that if this contract covered the legal representation for indigent criminal

defendants in all four counties of the 106m Judicial District, the total consideration for legal

representation at the trial court level would be $49,500.00 for the nine month contract

period.

The consideration for legal representation at the trial court level under this contract

between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,

payable in monthly installments, based on indigent defense provided under the 2013

Contract for Indigent Defense in each of the four counties of the 106m Judicial District.