# Vargas, Victor James

> Court of Appeals of Texas · March 2, 2015

URL: https://www.frixlaw.com/law-library/cases/4052962

## Case

- **Court:** Court of Appeals of Texas
- **Decided:** March 2, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

PD-0229-15

No. __________________
__________________________________________

In the Texas Court of Criminal Appeals
_______________________________________

Victor James Vargas
Appellant,
v.
March 2, 2015
The State of Texas
Appellee.

_______________________________________

On Review from the
Eleventh Court of Appeals at Eastland, Texas
____________________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
____________________________________________________________

Frank Sellers
Texas Bar No. 24080305
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
P: 806.771.0700
F: 806.763.8199
frank@hurleyguinn.com
Attorney for Appellant

ORAL ARGUMENT NOT REQUESTED

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

Trial  Court  Judge
Honorable  Carter  Schildknect
106th  District  Court  of  Dawson  County,  Texas

Defendant/Appellant   Appellate  Counsel
Victor  Vargas   Frank  Sellers
HURLEY,  GUINN  &  SELLERS
1805  13th  Street
Lubbock,  Texas  79401
P:  (806)  771-­‐‑0700
F:  (806)  763-­‐‑8199
E:  frank@hurleyguinn.com

Court-­‐‑Appointed  Trial  Counsel
Artie  Aguilar
1015  Buddy  Holly  Avenue
Lubbock,  Texas  79401

The  State  of  Texas   Trial  and  Appellate  Counsel
Mike  Munk
DAWSON  COUNTY  DISTRICT  ATTORNEY’S  OFFICE
P.O.  Box  1124
Lamesa,  Texas  79331-­‐‑0008

i
T ABLE OF C ONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL .................................................... I

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

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

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

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

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

GROUND FOR REVIEW ..................................................................................... 4
When a motion for new trial is supported by sworn affidavits
alleging matters indeterminable from the record, the trial court
must conduct a hearing. Vargas timely filed a motion for new
trial, supported by sworn affidavits alleging facts that, if true,
would entitle him to relief. Did the court of appeals err by
dismissing Vargas’s appeal of the denial of a hearing on his
motion for new trial?

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

ARGUMENT .................................................................................................... 8
The court of appeals erred by dismissing Vargas’s appeal
instead of abating or remanding the case to the trial court to
conduct an evidentiary hearing on his motion for new trial.

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

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

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

ii
TABS ...............................................................................................................

1. Original Motion for New Trial (filed Aug. 22, 2014)
2. Defendant’s Second Request for Hearing (filed Sept. 19, 2014)
3. First Amended Motion for New Trial (Oct. 3, 2014)
4. Notice of Appeal
5. Order to Show Cause (Oct. 28, 2014)
6. Court of Appeals Opinion (issued Nov. 20, 2014)
7. Motion for Rehearing (filed Dec. 31, 2014)
8. Denial of Motion for Rehearing (Jan. 22, 2015)

I NDEX OF A UTHORITIES

Cases

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

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

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

Guidry  v.  State,  132  S.W.3d  611  (Tex.  App.—Houston  [1st  Dist.]  2004,  no
pet.).   _________________________________________________________  12

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

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

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

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

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

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

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

Vargas  v.  State,  No.  11-­‐‑14-­‐‑00283,  at  *2  (Tex.  App.—Eastland  Nov.  20,  2014,
pet.  filed)  (mem.  op.,  not  designated  for  publication)  ____________  3,  7,  13

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

Rules

TEX.  R.  APP.  P.  43.6  ________________________________________________  12

TEX.  R.  APP.  P.  44.4  ________________________________________________  12

TEX.  R.  APP.  P.  66.3  _________________________________________________  8

TEX.  R.  APP.  P.  68.1  _________________________________________________  1

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

TEX.  R.  APP.  P.  9.4  _________________________________________________  15

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

Other  Authorities

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

Dottie  Carmichael  et.  al.,  Guidelines  for  Indigent  Defense  Caseloads,  A  Report  to
the  Texas  Indigent  Defense  Commission,  TEXAS  A&M  UNIV.  PUB.  POLICY
RESEARCH  INST.  (2015),  available  at
http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf   _______  6

No. __________________
__________________________________________

In the Texas Court of Criminal Appeals
_______________________________________

Victor Vargas
Appellant,
v.

The State of Texas
Appellee.
_______________________________________

TO  THE  HONORABLE  JUDGES  OF  THE  COURT  OF  CRIMINAL  APPEALS:

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

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

Discretionary   Review,   and   would   show   this   Honorable   Court   the

following:

S TATEMENT R EGARDING O RAL A RGUMENT
Pursuant   to   TEX.   R.   APP.   P.   68.4(d),   Vargas   waives   oral   argument

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

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

1

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

trial.

S TATEMENT OF THE C ASE
Vargas  was  indicted  for  possession  of  a  controlled  substance  less  than

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

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

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

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

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

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

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

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

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

of  law.

2

S TATEMENT OF P ROCEDURAL H ISTORY
After  the  trial  court  allowed  Vargas’s  motion  to  overrule,  Vargas  filed

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

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

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

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

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

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

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

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

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

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

1
The  Court  of  Appeals  granted  an  extension  of  time  to  file  the  notice  of  appeal.
See  also  Dottie  Carmichael  et.  al.,  Guidelines  for  Indigent  Defense  Caseloads,  A  Report  to
2

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

3

G ROUND FOR R EVIEW
When   a   motion   for   new   trial   is   supported   by   sworn   affidavits
alleging  matters  indeterminable  from  the  record,  the  trial  court
must   conduct   a   hearing.   Vargas   timely   filed   a   motion   for   new
trial,   supported   by   sworn   affidavits   alleging   facts   that,   if   true,
would   entitle   him   to   relief.   Did   the   court   of   appeals   err   by
dismissing   Vargas’s   appeal   of   the   denial   of   a   hearing   on   his
motion  for  new  trial?

S TATEMENT OF F ACTS
Following  his  guilty  plea,  Vargas  timely  filed  a  motion  for  new  trial

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

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

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

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

other  than  to  plead  guilty  with  him:

• “The  officer  then  pulled  me  over  because  he  believed  that  I  ‘looked
fatigued.’”

• “After  my  November  2012  habeas  hearing,  I  was  unable  to  get  in  contact
with  Artie  again  until  February  of  2014.”

• “From  my  original  arrest  on  August  9,  2012,  until  July  23,  2014,  almost
all  of  the  contact  that  I  have  ever  had  with  Artie  has  been  inside  the
court  room.  I  have  never  seen  any  discovery  (police  reports,  lab  report,
or  video).  I  do  not  know  if  or  when  Artie  got  the  discovery.”

4

• “Artie  told  me  that  I  had  no  choice  but  to  either  take  the  final  deal  or  go
to  trial  and  get  the  maximum  sentence.  I  asked  him  about  whether  the
stop  was  legal.  I  asked  him  about  the  lab  report  and  whether  there  was
even  enough  to  charge  me.  Artie  never  discussed  any  options  other  than
pleading  guilty  with  me.”

• “Had  Artie  explained  anything  to  me  about  the  suppression  hearing  or
affirmative  links,  and/or  if  I  had  had  the  opportunity  to  view  the  video
and  see  the  reports,  I  would  not  have  pled  guilty.”

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

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

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

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

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

hearing.  Tab  #2.

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

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

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

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

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

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

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

5

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

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

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

criminal   lawyer   who   is   responsible   for   training   for   the   Lubbock   County

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

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

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

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

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

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

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

allegations  on  multiple  occasions.  Tab  3,  Exhibit  I.

See  also  Dottie  Carmichael  et.  al.,  Guidelines  for  Indigent  Defense  Caseloads,  A  Report  to
2

the   Texas   Indigent   Defense   Commission,   TEXAS   A&M   UNIV.   PUB.   POLICY   RESEARCH   INST.
(2015),  available  at  http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf.),  at  34
(concluding   that   for   reasonably   effective   representation   attorneys   should   carry   an
annual   full-­‐‑time   equivalent   caseload   of   no   more   than   the   following:   236   Class   B
Misdemeanors,   216   Class   A   Misdemeanors,   174   State   Jail   Felonies,   144   Third   Degree
Felonies,  105  Second  Degree  Felonies,  or  77  First  Degree  Felonies).

6

In   the   face   of   these   uncontroverted   affidavits   and   multiple   requests,

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

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

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

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

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

Upon   reviewing   the   trial   court’s   Certification   of
Defendant’s  Right  of  Appeal,  it  indicates  Appellant  waived  his
right   of   appeal.   Appellant   is   requested   to   provide   this   Court
with   a   response,   in   writing,   showing   grounds   to   continue   this
appeal.   If   the   response   is   not   filed   on   or   before   November   5,
2014,  the  appeal  may  be  dismissed.  Tab  #5.

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

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

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

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

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

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

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

7

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

a  hearing,  Vargas  filed  this  petition.

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

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

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

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

66.3(d),5  and  66.3(f).6

A RGUMENT
The  court  of  appeals  erred  by  dismissing  Vargas’s  appeal
instead  of  abating  or  remanding  the  case  to  the  trial  court  to
conduct  an  evidentiary  hearing  on  his  motion  for  new  trial.

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

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

“[W]hether   a   court   of   appeals'ʹ   decision   conflicts   with   another   court   of   appeals'ʹ
3

decision  on  the  same  issue.”
“[W]hether  a  court  of  appeals  has  decided  an  important  question  of  state  or  federal
4

law   in   a   way   that   conflicts   with   the   applicable   decisions   of   the   Court   of   Criminal
Appeals  .  .  .  .”
“[W]hether   a   court   of   appeals   .   .   .   appears   to   have   misconstrued   a   statute,   rule,
5

regulation,  or  ordinance.”
“[W]hether   a   court   of   appeals   has   so   far   departed   from   the   accepted   and   usual
6

course  of  judicial  proceedings,  or  so  far  sanctioned  such  a  departure  by  a  lower  court,  as
to  call  for  an  exercise  of  the  Court  of  Criminal  Appeals'ʹ  power  of  supervision.”

8

appellate   courts   ordinarily   will   not   reverse   that   decision   unless   the   trial

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

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

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

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

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

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

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

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

element   must   be   established   “but   rather   must   merely   reflect   that

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

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

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

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

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

Vargas  made  multiple  allegations  that  would  entitle  him  to  relief  for

Aguilar’s  ineffective  assistance  of  counsel:

9

• Aguilar’s  failure  to  conduct  an  “appropriate  investigation  and  study  of
the  case,”  ABA  Standards  Relating  to  Criminal  Justice,7  §  4-­‐‑6.1(b)  (1991)
[hereinafter  “ABA  Standards”].

• Aguilar’s  failure  to  “provide  the  [Vargas  with]  an  understanding  of  the
law  in  relation  to  the  facts,”  United  States  v.  Cavitt,  550  F.3d  430,  440-­‐‑41
(5th  Cir.  2008);

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

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

• Aguilar’s  intentional  overstatement  of  the  penalty  Vargas  would  face  if
he   opted   to   go   to   trial   (the   maximum   prison   sentence),   which   caused
“undue   influence   on   [Vargas’s]   decision”   to   plead   guilty.   ABA
Standards  §  4-­‐‑5.1;

• Aguilar’s   advising   Vargas   to   plead   guilty   before   “appropriate
investigation   and   study   of   the   case   had   been   completed,”   ABA
Standards  §  4-­‐‑3.2;

• All   of   the   above   was   likely   the   result   of   Aguilar’s   excessive   caseload,
which   systematically   prevented   him   from   being   able   to   provide
constitutionally  effective  assistance  of  counsel.8

The   Supreme   Court   has   made   clear   that   the   inquiry   into   whether   an   attorney
7

performed  deficiently  under  Strickland  v.  Washington,  466  U.S.  668  (1984),  “is  necessarily
linked  to  the  legal  community’s  practice  and  expectations.”  Padilla  v.  Kentucky,  130  S.  Ct.
1473,   1482   (2010).   Accordingly,   the   American   Bar   Association   standards   provide
invaluable  guidance  on  practice  and  expectations  in  representing  criminal  defendants.
See  id.  Using  these  standards,  it’s  equally  clear  that  Aguilar’s  representation  fell  below
an   objective   standard   of   reasonableness   under   then   “prevailing   professional   norms.”
Strickland,  466  U.S.  at  688.
See   Wilbur   v.   City   of   Mt.   Vernon,   989   F.Supp.2d   1122,   1124   (W.D.   Wash.   2013)
8

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

10

• Finally,   “Had   Artie   explained   anything   to   me   about   the   suppression
hearing  or  affirmative  links,  and/or  if  I  had  had  the  opportunity  to  view
the   video   and   see   the   reports,   I   would   not   have   pled   guilty.   Instead,   I
would  have  insisted  on  going  to  trial  —  regardless  of  the  outcome.”  Tab
1,  Ex.  A.

Vargas’s   motion   for   new   trial   and   supporting   exhibits   were

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

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

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

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

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

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

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

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

motion).

counsel  at  critical  stages  of  the  prosecution  and  that  municipal  policymakers  have  made
deliberate   choices   regarding   the   funding,   contracting,   and   monitoring   of   the   public
defense   system   that   directly   and   predictably   caused   the   deprivation,”   where   public
defenders   were   saddled   with   caseloads   comparable   to   Aguilar’s.   See   also   id.   (calling
City’s  indigent  defense  a  “meet  and  plead”  system).

11

The   Court   of   Appeals’   misunderstanding   of   the   relief   Vargas   was

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

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

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

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

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

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

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

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

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

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

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

motion  for  new  trial.

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

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

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

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

12

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

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

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

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

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

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

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

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

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

C ONCLUSION AND P RAYER FOR R ELIEF
The  United  States  Supreme  Court  recently  criticized  Texas’s  appellate

scheme   for   the   difficulty   it   causes   defendants   wanting   to   raise   ineffective

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

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

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

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

ago,   this   Court   commented   that   claims   of   ineffective   assistance   and

13

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

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

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

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

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

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

ineffective  assistance  claim  is  seemingly  impossible.

WHEREFORE,  PREMISES  CONSIDERED,  Vargas  prays  this  Court  reinstate

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

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

Respectfully  submitted,

_________________________
Frank  Sellers
Texas  Bar  No.  24080305
HURLEY,  GUINN  &  SELLERS
1805  13th  Street
Lubbock,  Texas  79401
P:    806.771.0700
F:    806.763.8199

14

E:    frank@hurleyguinn.com
Attorneys  for  Appellant

C ERTIFICATE OF S ERVICE
Pursuant  to  TEX.  R.  APP.  P.  9.5(d),  a  copy  of  the  foregoing  was  served
on  opposing  counsel  viaȱŽ–Š’•ȱ˜—  February  23,  2015.

_________________________
Frank  Sellers

C ERTIFICATE OF C OMPLIANCE
Pursuant   to   Texas   Rule   of   Appellate   Procedure   9.4(i)(3),   I   hereby   certify
that  this  brief  contains  2,685  words  (excluding  the  caption,  identification  of
the  parties,  index,  list  of  authorities,  signature,  certification,  and  certificate
of   compliance).   This   is   a   computer-­‐‑generated   document   created   in
Microsoft   Word,   using   14-­‐‑point   typeface   for   all   text,   except   for   footnotes
which   are   in   12-­‐‑point   typeface.   In   making   this   certificate   of   compliance,   I
am   relying   on   the   word   count   provided   by   the   software   used   to   prepare
the  document.

_________________________
Frank  Sellers

15

T ABS

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

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

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

4. Notice of Appeal

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

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

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

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

Tab #1
Original Motion for New Trial (filed Aug. 22, 2014)
FILED IN
11th COURT OF APPEALS
EASTLAND, TEXAS
10/28/2014 5:39:00 PM
SHERRY WILLIAMSON
Clerk
08/22/2814 16:41 8067638199 HURLEY & GUII'f'.l PAGE 83/27

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

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

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

Ill. ARGUMENT AND AUTHORITIES

A. Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and another officer. searched the trunk and found baggies of trace residue inside.
08/22/2014 16:41 80676381'3'3 HURLEY & GUINN PAGE 04/27

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

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

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

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

charge. Unfortunately, he felt he had no choice.

B. Standard of Review

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

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

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

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

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

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

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

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

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

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

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

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

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

Article I, Section 10 of the Texas Constitution, guarantee each defendant the right to the
08/22/2014 15:41 8057538199 I-IJRLEY & GUINN PAGE 05/27

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

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

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

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

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

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

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

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

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

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

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

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

App. 2005).

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

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

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

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

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

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

neither certainty nor showing that "more likely than not" diiferent outcome would have
08/22/2014 16:41 8067638199 1-URLEY & GUINN PAGE €16/27

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

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

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

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

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

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

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

Deficient Performance

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

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

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

below an objective standard of reasonableness under then "prevailing professional

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

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

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

provide invaluable guidance on practice and expectations in representing criminal

defendants. See id.

The ABA Standards applicable here illustrate precisely why Aguilar's

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

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

Defense counsel should conduct a prompt investigation of the
circumstances of the case and explore all avenues leading to facts relevant
to the merits of the case and the penalty in the event of conviction. The
investigation should include efforts to secure information in the
possession of the prosecution and law enforcement authorities. The duty
to investigate exists regardless of the accused's admissions or statements
to defense counsel of facts constituting guilt or th.e accused's stated desire
to plead guilty.

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

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

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

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

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

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

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

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

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

completed:

(a) After informing himself or herself fully on the facts and the law,
defense counsel should advise the accused with complete candor
concerning all aspects of the case, including a candid estimate of the
probable outcome.

(b) Defense counsel should not intentionally understate or overstate
the risks, hazards, or prospects of the case to exert undue inf1uence on the
accused's decision as to his or her plea.

ld. § 4-5.1 (emphasis added).
~8/22/2~14 16:41 8~67638199 HURLEY & GUINN PAGE EIB/27

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

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

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

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

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

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

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

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

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

Court should not condone or invent one.

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

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

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

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

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

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

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

provide the accused a.n understanding of the law in rela.tion to the facts.
The advice he gives need not be perfect, but it must be reasonably
competent. His advice should permit the accused to make an informed
and conscious choice. In other words, if the quality of counsel's service
falls below a certain minimum level, the client's guilty plea cannot be
knowing and voluntary because it will not represent an infonned choice.
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 09/27

And a lawyer who is not famil.ia_r with the facts and law relevant to his
client's case cannot meet that required minimal level.

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

omitted). Aguilar's performance was deficient.

Prejudice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

drove Vargas's vehicle. Finally, Vargas was not actually in possession of any drugs. No
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 10/27

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

"trace," immeasurable amounts of a controlled substance.

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

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

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

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

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

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

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

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

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

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

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

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

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

failure to properly advise the defendant of collateral immigration consequences

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

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

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

waived." Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Any remaining doubt over
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 11/27

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Juarez's guilty pleas were not entered knowingly or voluntarily becau.se
[trial counsel] advised him without investigating derivative citizenship.
"[A defendant) who does not receive reasonably effective assistance of
08/22/2014 16:41 8067638199 HURLEY & allNN PAGE 12/27

counsel in connection with his decision to plead guilty cannot be said to
have made that decision either intelligently or voluntarily."

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

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

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

underlying Jegitimate, potentially exonerating defenses for Vargas. Because Aguilar

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

unsupported by any reasonable argument - Vargas was denjed constitutionally

effective assistance of counsel.

Ill. CONCLUSION & PRAYER

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

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

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

Respectfully submitted,

Texas Bar No. 24080305

1805 13th Street
Lubbock, Texas 79401
P: 806.771.0700
F: 806.763.8199
ATIORNEYS FOR DEFENDANT
08/22/2014 16:41 8067638199 ~EV & GUII-f'.l PAGE 13/27

Certificate of Service

I certify that today, August 22, 2014, a. copy of the foregoin. mailed and faxed
to the Dawson County District Attorney's Office.

Certificate of Presentment

I certify that today, August 22, 2014, a. copy of the foregoing was ed and
emailed to the Judge of this Court, along with a blank Order S,ertJrn!Z:;r-u~
08/22/2014 16:41 8067638199 HURLEY & GUINN PAGE 14/27

Exhibit A
Affidavit of Victor Vargas
08/22/2014 15:41 8857538199 H~LEV & GU!i'l'l PAGE 15/27

AFFIDAVIT

THE STATE OF TExAs §
. §
COUNTY OF ~0\:to(\ ~ §

Before me, the undersiped authority, personally appeared Victor Vargas. who upon his oath
deposed and stated the following:

My name is Victor Varps. I am over the age of 18. of sound mind. competent to make this
affidavit, and bave pel'JOD8Ilmowledge of the filets below. I have prepared this affidavit with the
help of my new lawyer, Frank Sellers.

I was driving from Lubbock, TX to San Angelo, TX on Aupst 9, 2012. I was in a lowered
Cadillac Coupe Deville that had previously been used by my broCh« and mend. As I was drMng
on Highway 87, I noticed an officer on the other side of the road. The officer drove up beside me
and remained db:ectly next to my vdricle for a short period of1ime.. The oftic:er then pulled me
over because lv: believed that 1 "looked fatiped." After the officer explained to me that I would
r=eive a warning and rcccivina the same, the officer asked tbr COIIIeDt to search. lbihking there
was nothing to hide, I gave the officer dris consent.

There were three to four large suitcase-type bags located in the trunk of the v~e. Small
plastic baggies WCR fouud in one bag tbat also c:ontained my tattoo equipment. There were many
clean, wuscd small plastic bagies within this larger bag. Hc»vever, two small mreen baggjes
were mixed in amongst tbe clean baggies. Upon inspecting these two green blgies, tbe officer
del:eeted a tiny amount of what he believed was drug residue on the inside. 1 was then arrested
for felony possession of a COJdrolled. substaDcc less tban 1 gram. I was held in Dawson County
Jail wilh a S10,000 bodd. I was unable to get a bond because I was an out of town traveler and
c:oruJiclaed a flight risk. My ooly option was to wait in jail Uldi1 my attorney and J could sort
everything OUL

While in j~ I received a letter from Artie Aguilar notifYing me that he would be serving as
my court appointed lawyer in this matter. When I received this letter I bed my wife, Crystal
Vargas, conract Artie almost immediately. After many attelnpts, sbe was UDable to reach him.
After about 10 days in jail Crystal tried many 1001e times to oontact Artie, each time was
unsuccessful. Crystal was finally able to reach Artie. But Artie told Crystal that he coutdn•t talk
to her because all the information in my case was confidential.

Other than Artie's first lettr:r, I bad not beard ftom bim in any way while I was in jail. After
almost 90 days I wrote a leaer to Artie, informing bim that I bad not been inc1icted aod that I
wanted to file a writ of habeas corpus. I oevcr received a letter in return from Artie. but two
weeks later received notice that I would be haviDs a bearing for habeas relief. Artie and I were
both present for this hearing. This wu the first tiOle I bad spoken to Artie aside fiom the initial
letter he sent me. bJ November2012, tbejudge granted me habeas reJiefbecause I still had not
yet been indicted. Wrth some stipulations, I was released from jail.
08/22/2014 16:41 8067638199 HJRLEY & GUINN PAGE 16/27

After my release, I called and sent letters to Artie hopiDg to resolve my lepl issues. Also, I
was planning 8 move from San Angelo to Houstoa early in 2013 aud knew 1bll--es 8 condition
of my releasc--1 would need to inform both my attomey and the comw:y. Eaeh time I tried to
reach Artie aod iufonn him of this move I was uasuccessfW..I reac:bed Artie's secretuy (his
fidher) multiple times ad left f!N"$98p. Howew:r, I never received a return phooe call or any
letters 1iom Artie. After my November 2012 habeas hearing. I was unable to get iD contact with
Artie again UDtil Febnlll)' of20J4.

In February of2014, I was pulled over for having expired license plates in Houston and
subsequently am:stcd due to a pending indicbneot in Dawson County. Artie bad not notified me
oftbis indiclmeDt. I wa never told that fbi= was even a posst''bility of trial. At this time. my wife
and mother (Datqr Vargas) began adliag Artie's office in hopes of gettiDg more details on the
indictmeqt. Botb were aosuccessful on nearly eYf:rJ 8ltempL My molher was finally able to get a
hold of Artie, only to be cussed out for calling too mucb and tben bung up on.

The oex.t time I saw Attie was in April of20l4 at my arraignment in Dawson County. I was
told that I would need to come back aud enter my plea in June of2014 at 9:00A.M. Although I
now lived in Houston, I drove to Dawson County and arrived at tbe scbcduled time. I was told
that b)' Artie that the District Attorney wasn't ready at 811 and that they didn't have mtything
prepared. This hearing was rescheduled and I was fon:ed to drive all the way back to Houston.

The next court date sbould have been July 2, 2014. Artie told me that be was going to try to
set up a way where I could avoid having to drive in from Houston again. In late June. I received
a call &om Arlie saying tbat I bad RCeived a second plea offer. At this time, I told Artie thall
didn't even knew of the first plea offer. Artie told me that I bad been pnmously been offered a
plea of S years state jail confinement with 4 years of or community supervision. I do not know
wbeo Artie n:cdved the fint offer. Artie told me that be had "already told them that you weren •t
going to Ulke it...

The sc:amd plea oftb- was for 2 years of S1afe jail ccmfinemeat with 3 years of community
supervision. I asked Artie if he would be able to get anything less. He told me that I was lucky
they offered me this btause for a wbile they didn't want to come down from S years. Once
again, l was unaware that prior ncgotiadcms and/or offers had ever laben place. I was 1-.sically
told to take it or leave it oa this 8CCODd offer. Mtie elso told me that he would be able to move
my court date ftom July 2, 2014, to July 23, 2014. After spcaldng with my wife, I decided that I
bad no choice but to take the second offi:r.

From my original arrest on August 9, 2012. until July 23, 2014, almost all of the contact that
I have ever had with Artie IMs been inside the court room. I have never sc:en any discovery
(police ...,rts, lab report, or video). I do not bow if or wbm Artie got tbe discovery.
Throughout tbis ~process, Artie has been nearly impossible to reach.

Artie told me tbat I had no choice but to either take the final deal or go to trial and get the
maximum scntenc:e. I asked him about whether the stop was legal. I asked him about the lab
report aod wbelber there was even enough to daarge me. Artie never discussed any options other
than pleading guilty with me.

Alllda.U of' VIdor va...-- hie 2
08/22/2014 16:41 8067638199 1-il.RLEY & GUINN PAGE 17/27

While: lcaviag tbe courthouse after my plea, attorney Frank Sella'S overheard my Mom and I
arguiag about the plea deal I bad just bcca fon:ed to take. Mr. Sellers inquired about my limited
knowledge of the facts of my case. He lgreed to help me file a motion for new 1riat without any
c:ostto me.

Mr. Sellers reoeivccl the discowry from Ame. He then sbowal it to me. This was the fimt
time I had seen a police report. lab rqJOrt, and video. He also explaiDed to me that the stop and
consent to search my vehicle appeand to be uneoostitutiooal. He said that dtele were legitimate
defenses that could have been ftlised both before trial in 1iont of the judge at a suppression
heariag, as well as in fioDl oflbe jUI)'. AdditiOD8lly, he explained the legal c:oocept of
"affirmatiw liDks," requirina the State to 1iDk me to anyd:tiog in tbe car becaU9e multiple people
had access to the vehide.

I am not pilty oftbe cbarge I pled guilty to. Had Artie explained anything to me about the
suppression bearing or affinnalive liftks, and/or if I bad bad tbe opportunity to view the video
and see the reports, I would not bave pled guilty.lnsteld, I would have iusisted on go.iDg to trial
-regardless of the outcome.

Subscribed and swom to before me on August li, 2014. by Victor Vargas.
B8/22/2B14 16:41 8B67638199 HURLEY & GJINN PAGE 18/27

Exhibit B
Affidavit of Darcy Vargas
08/22/2014 16:41 8067638199 HURLEY & GJINN PAGE 19/27

AFFIDAVIT

ntE STATE OF TExAs §
§
§

Before 111e, the undersiped authority. personally appeared Darcy Vargas, who upon her oath
deposed end stated the following:
..My name is Darcy Vargas. t am owr the age of 18, of sound mind, competent to make tllis
affidavit, and have pei"SSMM knowledge of the facts below. I have prepared this affidavit with the
help of my son's new lawyer, Frank Sellers.

l, Darcy Varps, have been involved in Ibis case ever since my son Victor was arrested in
Houston and informed that he had a wanant in Dawson County. Prior to the arrest in Houston. I
had called Anie Apilar maybe once or twice before. This previous call was just to notify Artie
that Victor pllllllled to move in with me in Houston. Because nobody was able to a« a hold of
Artie, Victor and 1 decided 1hc best thing to do was to send a letter to his office with the address
of Victor's new residente ill Houston.

After Victor's arrest, I called Artie many times hoping to get some infonnation about the
wammt in Dawson County.l called hisoffic:e 1D811)', many times with no answer. I was often
IIIUlble to leave voicemails because the phone would just keep ring endlessly. After many failed
attempts, I wa fmally able to reach a male who sccmcd to be acting as Artie's sct~£taly. I cannot
recall if this man b)ld me his name or not. I told the sccrc:tary that I needed to speak with Artie
immediatdy because we were not aware Chat a wanant had been issued in Dawson County.

Within a day or two, I spoke with Attie for the first time. He called in the aftemoon aDd
asked what I wan~ to which I said we nJZded information on Victor's cue. Artie responded
that there had been a sealed indictment and that it was not his raponaibility to intbrm V"actor
about it. After a briefoon'ft:tlation about why we weren't made aware ofthe sealed indictment,
Artie fanally asked me, "What do you wantr J araswered that I ji&SC wancecllnfonnation, records,
or anything that could help gel my son out ofjail in Houston. I will never forget his response. He
responded, "Access Denied. Now what do you want?" Once again [ requested 1hc same
infonnation. Artie then said, "Look lady, qui' being a bitch." Shocked by how unprofessional he
was, I responded, "Excuse me? You did not just call me the 8-Word." Artie lhen said, uwell
lady, you heard me,. and hung up the phone on me. I found Ibis diBiespectful conduct particularly
surprisinJ coming ffom a lawyer.

In June of2014, Artie called me and said that I needed to have Victor call him because he
had been gM:n a plea offer. V"ICior called Artie back and was able to get a hold of Artie. This is
when Victor was told of the offer that he eventually acc:eptcd.

Before accepting this plea, neither Victor nor I were able to view any police reports. any lab
reports, or the video of Victor's stop and arrest. I found Mr. Aguilar's behavior ~ble and
of lowest caliber of any professional I have ever dealt with. His lc:gaJ work was not much better."
88/22/2814 16:41 80676381'3'3 HURLEY & GUif'.l'l PAGE 28/27

Subacribed and sworn to before me on August JL 2014. by Darcy Vargas.
08/22/2014 15:41 8057538199 1-fJRLEY & GUINN PAGE 21/27

Exhibit C
Trooper Garza's Report
08/22/2014 15:41 80676381'3'3 f-IJRLEY & Gl.Jl NN PAGE 22/27

• ,..
Q'EXAS DEPARTMENT OF PUBLIC SAFkp TRAFFK:
TEXAS HIGHWAY PATROL DMSION _x_ CRII.tiMfL
OFFENSE REPORT WtOOI.NOTR:AnON
REQUIRED fAAT. 11.27 CCP)
REPORT DATE: 0Bf09/12
FILETm.E INVESnGAnNG OFFICER:

~JWE: Waltf~G
1. Vargas, VIdor James IO-IIt 12989
2. 522 e. 24* street • • .
3. San Angelo, TX 78903 SIOM'IllftE; ~
4. W/M REGIONIDISTRICt • ·
5. APPROVING SUPERVISOR:
SID# Ill# nPEO JMME; Sgt. Jason Anzaldua IOoNR: 10358
10. TX: 29404996 008 1011111984
OTHER:
aqM~-----------------------------
RPT--RE: 1.) Possession ofConlralled Substance in PG-1 ; Vargas, Victor James (DOB 10/11/84)

Requested Analysis: Examine for the presence of Controlled Substances
SubmJsslqn lnfonnaflon:
01: 9x12 yellow envelope on August 13, 2012 by Garza, WaDy VIA Certified Mail 70112970000425712709
Eyldtnce Dascdptlon. Results of Analyafa and lntemretatlon:
01: Property Sealed 9x12 yellow envelope
01.01-AA: Exhlblt#1 Blue zlploc containing white 19Gldue
Contains Methamphetamlne
Trace net weight
1 of 1 Items were sampled for analysis

This report has been electronlcally prepared and approved by:

Marissa SBva
Forensic Scientist
Texas DPS Mfdland Crime Laboratory

ACCREOnEO BVTHEAME!RICAN SOCIE1YOFCRIMEtA80RAnmYOtRSCRmS • tABACCREOl'l'ATIOH BOARD
lllB!lllllmf!IDllODmJllllIDIWllll!IDHllltlil(l(lllfD COURTESY • SERVICE • PROTECTION Page 1-of1
fJGP8 IUl.t2

Exhibit  E
Contract  for  Indigent  Defense  in  the  106th  Judicial  District  Court  of  Texas
(file  marked  December  9,  2013)

CoNTRACT FOR INDIGENT DEFENSE
IN
THE 106TH JUDICIAL DISTRICT CoURT OF TEXAS
DAWSON, GAINES, GARZA AND LYNN COUNTIES

I. INTRODUCTION
The county of Dawson ("COUNTY',) and The Law Offices of Arthur Aguilar, Jr.
("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial
District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to
represent indigent criminal defendants in COUNTY. This agreement establishes conditions
under which ATTORNEY will provide legal representation for indigent criminal
defendants in COUNTY.

2. SCOPE OF WORK
ATIO RNEY will provide legal representation for indigent criminal defendants in
COUNTY for felony cases only. Under this contract, a felony will be considered to be any
criminal offense that carries a possible punishment of confinement in excess of one year or
that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
represent only those defendants designated by DISTRICT JUDGE, and no file shall be
opened or appearance made under this contract except by order of DISTRICT JUDGE.
ATIO RNEY shall represent such defendants in the trial court and on direct appeal in any
of the appellate courts to which such case is appealed. Post conviction writs are
extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
elects to pursue the Death Penalty are NOT covered in this contract. This contract does
not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
indigent defendant has a misdemeanor charge as well as a felony charge, ATIO RNEY will
handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
charge is taken into account in determining sentence for the felony offense as provided in
Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the
indigent defendant to be under this contract for only the felony case. ATTORNEY shall
meet qualifications and shall devote time, attention and energies to the performance of
duties under this contract pursuant to the provisions of the I 06th Judicial Districfs Local
Indigent Defense Plan, including but not limited to the qualifications set out in the
Application/Affidavit for the I 06th Judicial District Court Attorney Appointment List.
DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
that the quality and effectiveness of ATTORNEY's representation of defendants is not
compromised and that each defendant is being provided effective representation. If
DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
falling below that which is expected by the Court, DISTRICT JUDGE will make
adjustments to ATTORNEY's caseload. ATIORNEY's caseload under this contract shall
not exceed 400 actual cases over the entire four counties of the 106th Judicial District.
3. CONTRACT PERIOD
This agreement shall commence on January 1, 2014, and shall terminate September 30,
2014, unless terminated earlier by either party. The parties shall have an option to renew
the contract for additional years, and prior to July 1, 2014, the parties will revisit the
contract to consider any desired modifications to the terms and conditions of this contract.

4. CONSIDERATION
The parties agree that if this contract covered the legal representation for indigent criminal
defendants in all four counties of the 106th Judicial District, the total consideration for legal
representation at the trial court level would be $49,500.00 for the nine month contract
period.

The consideration for legal representation at the trial court level under this contract
between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
payable in monthly installments, based on indigent defense provided under the 2013
Contract for Indigent Defense in each of the four counties of the 106th Judicial District.
COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
for COUNTY's pro rata share as follows:

Dawson County $18,062.55 for contract $ 2,006.95 monthly
Gaines County $ 16,844.85 for contract $ 1,871.65 monthly
Garza County $ 9,207.00 for contract $ 1,023.00 monthly
Lynn County $ 5,385.60 for contract $ 598.40 monthly

The above amount is the total consideration to be paid by COUNTY for legal
representation of indigent criminal defendants at the trial court level for all cases opened
during the term of this contract, and ATTORNEY shall furnish at his own cost all
equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
all other trial court expenses except as provided otherwise in this contract.

In consideration for ATTORNEY's appellate representation of COUNTY's indigent
criminal defendants under this contract, COUNTY agrees to pay additional ATTORNEY's
fees for legal services at the rate accepted in this area for such services and approved by
DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for
representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.

COUNTY shall not be obligated for any other additional amount or expenses unless
specifically designated in this agreement or required by law, detailed in the Request to Pay
Counsel, and approved by DISTRICT JUDGE.

If the renewal option is exercised, COUNTY's designated monthly percentage will be
adjusted to reflect the number of COUNTY's cases under the contract in trial court

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE2
compared to the number of trial court level cases under the contract in the entire 106th
Judicial District during the previous contract.

5. EXPERTS, INVESTIGATORS, AND INTERPRETERS
ATIORNEY will obtain prior approval of expenses for investigation and for experts by
filing a motion in the 106th Judicial District Court, stating the need for such assistance and
the estimated expense. Investigative or expert expenses incurred with prior court approval
shall be reimbursed as provided in the order granting approval. Investigative or expert
expenses incurred without prior approval shall be reimbursed only if necessarily and
reasonably incurred. ATIORNEY will arrange for interpreters when the need exists.
Expenses for interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.

6. CHANGE OF VENUE
If there is a change of venue which moves a case from the boundaries of the 106th Judicial
District, then ATIORNEY will be allowed his actual expenses in regard to lodging, meals,
court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
outside the 106th Judicial District will be paid at the prevailing state rate. All other fees
designated herein will be the responsibility of and paid by the County of original
jurisdiction.

7. ASSIGNMENT
ATIORNEY may employ an associate attorney(s) to assist in representing defendants
under this contract with the prior consent and approval of DISTRICT JUDGE, but only
at ATIORNEY's sole expense. ATIORNEY shall not assign its entire rights under this
contract or delegate the entire performance of its duties under this contract.

8. CONFLICTS
ATIORNEYwillnotifytheofficeofDISTRICTJUDGEassoonasATIORNEYisaware
of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
responsible to set the case for a hearing regarding the ethical conflict for consideration if
deemed necessary by the Court.

9. REPORTS
ATIORNEY shall compile a year-end report giving the number of indigent defendants
served, the number of individual cases handled, the types of cases, the disposition of the
cases handled, and any other reporting information required to be in compliance with the
law. Such report shall identify the cases by county and shall include cases for the other
contracting counties in the 106th Judicial District as well as COUNTY's cases. For approval
and payment, ATIORNEY shall provide itemized interim progress reports to COUNTY
and DISTRICT JUDGE as requested for indigent defense expenditure reports. Payment
shall be made by COUNTY after approval by DISTRICT JUDGE.

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE3
10. ATTORNEY'S PRIVATE PRACTICE
It is agreed that ATTORNEY may maintain a private practice. It is further agreed and
understood that ATTORNEY's private practice will not interfere in any material manner
with the indigent criminal defense cases provided for in this contract.

11. TERMINATION
If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
majority vote of the Commissioners Court of COUNTY. Either party may terminate with
90 days notice by Certified Mail to the other party. ATTORNEY shall complete all cases
that are open as of the date of the termination notice unless relieved or replaced by
DISTRICT JUDGE.

12. AMENDMENTS
Any alterations, additions or deletions in the terms and conditions of this contract shall be
by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
and the Commissioners Court of COUNTY.

13. SEVERABILITY
If any provision of this contract is construed to be illegal or invalid, such construction will
not affect the legality or validity of any of its other provisions. The illegal or invalid
provision will be deemed severable and stricken from the contract as if it had never been
incorporated herein, but all other provisions will continue.

14. SURVIVALOFTERMS
Termination of this contract for any reason shall not release either party from any liabilities
or obligations set forth in this contract that the parties have expressly agreed in writing shall
survive any such termination or which by their nature would be intended to be applicable
following such termination.

15. INDEPENDENT CONTRACTOR
It is agreed that ATTORNEY is an independent contractor and that this contract does not
create an employment relationship between COUNTY and ATTORNEY. ATTORNEY,
not COUNTY, will be responsible for appropriate payment of social security taxes and
federal income taxes applicable to the consideration received by ATTORNEY under this
contract.

COUNTY shall not be liable or responsible and shall be saved and held harmless by
ATTORNEY from and against any and all suits, actions, claims or liability of any character
arising out of the performance of ATIORNEY under this contract, including claims and
damages arising from acts of negligence or acts of malpractice of ATTORNEY.

16. NO WAIVER OF SOVEREIGN IMMUNITY
THE PARTIES EXPRESSLY AGREE THAT NO PROVISION OF THIS CONTRACT
IS IN ANY WAY INTENDED TO CONSTITUTE AWAIVER BY COUNTY OR THE

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY PAGE4
STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
LAW.

17. GOVERNING LAW AND JURISDICTION
This contract shall be construed in accordance with and governed by the laws of the State
of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
brought for any breach of this contract is fL\'.ed in any court of competent jurisdiction in
Dawson County, Texas. All payments under the contract shall be due and payable at
ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
between the parties. No prior agreement of understanding, oral or otherwise, of the parties
or their agents will be valid or enforceable unless embodied in this contract. The County
Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
the Commissioners Court. Any signatory executing this contract on behalf of either
ATTORJ.'JEY or COUNTY warrants and guarantees that he has authority to execute this
contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
ATTORNEY and COUNTY to the provisions of this contract.

EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.

COUNTY:
.."' . ' ... .. ·.

ATTEST:
.

. ... . . ... '
--
~ .
i~'>~'·~:};~;~;,~~~~i~~
~~
~ ~- , • I : .\___....-;:-? . . .. ...,..-; - .
- ~ • ! .·.. ~-:-·· / . • .•:i::. =. .·

~· ··t.~:~ DAY OF , 20~
Ar9·3Q O'CLOCK M.
WINONA HUMPHREYS
F COUNTY COUR O N

MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 1of6
MODIFICATION OF REGIONAL PUBIC DEFENDER CONTRACT
DATED OCTOBER 25, 2010

DICKENS COUNTY, TEXAS ("COUNTY") and TEXAS TECH UNIVERSITY
("ENTITY") entered into a agreement dated October 25, 2010, under which ENTITY agreed.to
perform legal services for persons accused of crimes in DICKENS COUNTY and other counties
that agree to participate in the Caprock Regional Public Defender Office ("CRPDO") program.

In the initial agreement, the following counties were authorized to participate in the
CRPDO program with the agreement of DICKENS COUNTY and ENTITY: Armstrong County,
Briscoe County, Collingsworth County, Cottle County, Crosby County, Dickens County, Floyd
County, Foard County, Hall County, Hardeman County, Haskell County, Kent County, King
County, Knox County, Motley County and Stonewall County.

With the agreement of ENTITY and COUNTY, since October 25, 2010, the following
additional counties have begun participation in the CRPDO program as per the original contract:
Gaines, Swisher, Garza and Dawson and the following counties have failed to enter the program:
Hall, Foard, Crosby and Haskell.

All previous terms and conditions of the agreement between the parties dated October 25,
2010, are hereby radified and continued in full force and effect if not expressly modified by this
agreement. The grant provider to the COUNTY suggested the third year budget be approved by
the COUNTY for all participating counties in the CRPDO program as the amounts are different
than those originally anticipated. Attached hereto marked Exhibit A is the proposed budget for
the CRPDO program for the third year of operation, October 1, 2012 through September 30,
2013. The COUNTY and the ENTITY hereby agree to this third year budget evidenced by their
signatures below, acknowledging that all other terms of the orginal contract will remain the same
unless herein modified. Further, the COUNTY and the ENTITY acknowledge and agree:

That the participating counties have not fully utilized the CRPDO as was anticipated on
the CRPDO's inception;

That additional time is necessary for the CRPDO to build its client base and gain the
confidence of the participating counties;

That as a show of good faith the ENTITY agrees to reduce the contract amount for year
three;

That the COUNTY and the ENTITY agree for the third year of the CRPDO's operation
only, the COUNTY is not responsible for the original contract amount of FOUR HUNDRED
FORTY THOUSAND ($440,000.00) Dollars, but the total of THREE ffiJNDRED NINETY-
EIGHT THOUSAND AND NO/I 00 ($398,000.00) Dollars;

That this $398,000.00 represents direct costs for contract services to be paid to ENTITY
of THREE HUNDRED EIGHTY-THREE THOUSAND AND N0/100 ($383,000.00) Dollars,

MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 2of6
and indirect costs of FIFTEEN THOUSAND AND NOil 00 ($15,000.00) Dollars to be retained
by Dickens County for administrative costs;

That ENTITY will establish it's budget for the third year of the CRPDO for the direct
costs of contract services of $383,000.00 to be paid to ENTITY by COUNTY plus
approximately SEVENTY-FOUR THOUSAND AND NO/I 00 ($74,000.00) Dollars being the
estimated carry-over belonging to ENTITY by virtue of the second year of operation - the exact
amount of the carry-over cannot be calculated until the end of September, 2012;

That the amount of the contract and other terms of the original contract for year four and
beyond will remain at the original FOUR HUNDRED FORTY THOUSAND ($440,000.00)
unless by agreement the amount is raised or lowed or other modifications are made in writing;

That beginning in year three the COUNTY has previously agreed to pay 20% of the
contract amount, which for year three will be SEVENTY-NINE THOUSAND SIX HUNDRED
AND N0/100 ($79,600.00) Dollars (20% of $398,000.00), with the 80% balance of the contract
($318,400.00) to be provided by the grant provider using the anticipated carry-over from year
two of approximately THIRTY THOUSAND AND N0/100 ($30,000.00) Dollars and a new
grant of TWO IDJNDRED EIGHTY-EIGHT THOUSAND FOUR HUNDRED ($288,400.00)
Dollars;

That any amounts of the third year contract of $398,000.000 remaining on hand at the
end of September, 2013, shall be divided pursuant to the Carry-Over provisions of the original
contract (i.e., the first $39,800.00 to be retained by ENTITY, and the remaining balance over
$39,800.00 to be divided equally between COUNTY and ENTITY;

That the budget for year three, attached hereto as Exhibit A, is hereby approved for
ENTITY'S accounting purposes and COUNTY'S informational purposes;

That unless further modification is made, the terms of the original contract will remain in
effect unmodified for year four and all subsequent years of the CRPDO program;

That two clarifications as to the intended scope of the CRPDO must be enumerated, to-
wit:

(1) That on February 2, 2012, the CRPDO's Oversight Board approved a clarification of
the scope of the CRPDO program to insure the CRPDO can accept appointments on
misdemeanors, felonies and juvenile cases, including appeals on misdemeanors,
felonies and juvenile cases, from the County and District Courts of the 7th and 9th
Administrative Judicial Region, and

(2) That the current caseload maximum of the CRPDO is 600 misdemeanor cases, or
their weighted equivalent;

That the CRPDO may also receive the appointment of appeals from any courts within the
7th and 9th Administrative Judicial Region -- whether or not from counties in the CRPDO

MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 3of6
program -- until such time as CRPDO has reached its full caseload maximums, as set by the
CRPDO's Oversight Board, giving preference to the needs of the counties within the CRPDO
program;

That any appeals accepted by the CRPDO from counties not participating in the CRPDO
program shall be compensated by the appointing county at its normal customary court appointed
rate with any sums received to be credited against COUNTY's obligations to the ENTITY
hereunder;

That upon the hiring of a second Assistant Public Defender, should that occur, the
caseload maximum of CRPDO, with approval of the CRPDO Oversight Board, will increase to
1000 misdemeanor cases, or their weighted equivalent; and

That the ENTITY and COUNTY hereby agree to these clarifications of scope to take
effect August 1, 2012, and to continue for the Ii fe of the CRPDO.

COUNTY:

Judge Lesa Arnold (or her successor)
Dickens County Judge
Post Office Box 179
Dickens, Texas 79229

ENTITY:

FOR TECHINICAL ISSUES:

Patrick S Metze (or his successor)
Director, CRPDO
Texas Tech University School of Law
1802 Hartford A venue
Lubbock, Texas 79408

FOR CONTRACTUAL ISSUES:

Dr. Jay B. McMillen
Assistant Managing Director
Office of Research Services
Texas Tech University
P.O. Box 41035
203 Holden Hall
Lubbock, Texas 79409-1035

MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT Page 4of6
With copy to:

Dr. Kathleen Harris
Senior Associate Vice President for Research
Office of Research Services
Texas Tech University
P.O. Box 41035
203 Holden Hall
Lubbock, Texas 79409- l 035

SIGNED AND EXECUTED by the parties on the date(s) indicated by the signatures of
the authorized representatives.

DICKENS COUNTY

By· .----#_ · 1-'=--~~~:::::::.i......C{~-!:::D=ate:..:....._:_Ji-'- %=-.;.'.;83 - >84
SOUTH PLAINS JR. COLLEGE LEVELLAND, TX

B.A. of General Studies - Emphasis in history 7/86
TEXAS TECH UNIVERSITY LUBBOCK, TX
GPA: 3.89
MAGNA CUM LAUDE
Major: General Studies with Emphasis in History

Minor: Political Science and English

Doctor of Jurisprudence 5/89
TEXAS TECH UNIVERSITY SCHOOL OF LAW LUBBOCK, TX

BAR ADMISSIONS
Χ Admitted in May 1989 to all Texas Courts.
Χ Admitted in November 1989 to practice in The Northern District of Texas.
Χ Admitted in November 1992 to practice in the United States 5th Circuit Court of Appeals.
Χ Admitted in August 1997 to practice in the United States Supreme Court.

PROFESSIONAL
ASSOCIATIONS
# Texas Criminal Defense Lawyers Association - Director
# Lubbock Criminal Defense Lawyers Association - President 1994 - 1995
# Texas Bar Association
# Lubbock County Bar Association

INSTRUCTIONAL
EXPERIENCE
AND SEMINARS
ATTENDED

• Attendee-Brian Shechmeister Death Penalty College, Santa Clara, California, August, 2001
• Course Director and Presenter-2002 Capital Murder Seminar, Galveston, Texas, March, 2002
• Attendee-Life in the Balance, Kansas City, Missouri, March, 2002
• Faculty-First Annual Capital Trial Advocacy Course, Austin, Texas, January, 2002
rd
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 23 Annual Capital Punishment Training
Conference, Airle Virginia, July, 2002
• Co-Course Director and Presenter, Texas Capital Defense Conference, Corpus Christi, Texas, October, 2002
• Co-Course Director and Presenter, (DNA Presentation) Post-Conviction Practice, Houston, Texas, January,
2003
• Course Director-Capital Trial Advocacy-Future Dangerousness, Plano, Texas, January, 2003
• Faculty-Second Annual Capital Trial Advocacy Course, Plano, Texas, January, 2003
• Faculty-Texas Criminal Trial College, Huntsville, Texas, March, 2003
• Course Director, Texas Section-Life in the Balance, Austin, March, 2003
th
• Presenter-16 Annual Rusty Duncan Seminar and Meeting, San Antonio, Texas, June 2003
th
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 24 Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2003
• Course Director-Habeas Nuts and Bolts, Plano, Texas, July, 2003
• Co-Course Director-Capital Issues, McAllen, Texas, August, 2003
• Co-Course Director-Capital Issues 2003, MO Ranch, Hunt, Texas August 2003
• Course Director-First Annual Texas Forensics Seminar, Plano, Texas, August 2003
• Faculty-Third Annual Capital Trial Advocacy Course, Plano, Texas , January, 2004
• Course Director-Habeas Corpus Workshop, San Antonio, Texas, February, 2004
• Presenter-A day in the Life of a Criminal Defense Lawyer, College Station, Texas, February 2004
• Course Director and Presenter - El Paso Indigent Defense, El Paso, Texas, March, 2004
• Course Director and Presenter-Dallas Indigent Defense, Dallas, Texas, March, 2004
• Faculty-Cross Exam and Impeachment, Plano, Texas, May, 2004
• Faculty-Trial Advocacy in Criminal Cases, Plano, Texas March 2004 Faculty-Capital Voir-Dire, Plano, Texas,
July, 2004
•
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 25th Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2004
• Presenter-Houston Bar Association (Post-Conviction Practice) Houston, Texas, July, 2004
• Co-Course Director-Second Annual Texas Forensics Seminar, Plano, Texas, August, 2004
• Faculty-National Institute for Trial Advocacy (Capital), Houston, Texas, September, 2004
• Presenter-Death Penalty Defense, Warm Springs, Oregon, October, 2004
• Co-Course Director and Presenter (DNA Presentation) Post-Conviction Seminar, Houston, Texas, January,
2005
• Co-Course Director-Capital Murder and Mental Health, Houston, February, 2005
• Faculty-Texas Criminal Trial College, Huntsville, Texas, March, 2005
• Faculty-Trial Advocacy in Criminal Cases, Plano, Texas, May 2005
• Course Director-El Paso Indigent Defense Seminar, El Paso, Texas, May 2005
• Course Director-Dallas Indigent Defense Seminar, Dallas, Texas, May, 2005
• Presenter-Indigent Defense Certification, Houston, Texas, May 2005
• Faculty-Capital Voir-Dire, Plano, Texas, June, 2005
• Faculty-Cross Exam and Impeachment-Plano, Texas, August, 2005
• Co-Course Director-Third Annual Texas Forensics Seminar, Dallas, Texas, September, 2005
• Co-Course Director, Faculty and Presenter-Fourth Annual Capital Trial Advocacy Course, Plano, Texas,
January 2005
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 26th Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2005
• Co-Course Director and Presenter, Capital Murder Seminar, South Padre Island, Texas, November, 2005
• Faculty-Cross Exam and Impeachment-Plano, Texas, December, 2005
• Co-Course Director and Presenter-Capital Murder, Dallas, Texas, March 2006
• Faculty- Texas Criminal Trial College, Huntsville, Texas, March 2006
• Co-Course Director, El Paso Voir Dire Program, May 2006
• Co-Course Director, Dallas Public Defender Program, May 2006
• Co-Course Director, Experts and Pretrial Motions, Plano, Texas, May 2006
• Co-Course Director and Faculty, Capital Trial Advocacy Program, Plano, Texas, May 2006
• Presenter, Capital Murder Update, Rusty Duncan Advanced Course, San Antonio, Texas, June 2006
• Co-Course Director and Faculty, Capital Voir Dire, Plano, Texas 2006
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 26th Annual Capital Punishment Training
Conference, Airlie Virginia, July, 2006
• Faculty, Criminal Trial Advocacy Program, Plano, Texas, August, 2006
• Co-Course Director, Punishment Phase of a Capital Case, Plano, Texas August, 2006
• Co-Course Director, Fourth Annual Forensics Seminar, Dallas, Texas, August 2006
• Co-Course Director, Cross Examination Seminar, Plano Texas, November 2006
• Co-Course Director, Padre Island Capital Murder Seminar, November 2006
• Co-Course Director, Capital Voir Dire, Plano, Texas, April 2007
• Course Director, Texas Track, Life in the Balance, Dallas, Texas, March 2007
• Course Director, Habeas Corpus Litigation, Plano, Texas, March 2007
• Co-Course Director, Punishment Phase at Trial, Plano, Texas, March 2007
• Presenter, Annual Rusty Duncan Advanced Criminal Law Course, San Antonio, Texas, June 2007
• Co-Course Director and Faculty, Capital Mitigation, Plano, Texas, July 2007
• Presenter, State Advanced Criminal Law Course, Houston, Texas, July 2007
• Co-Course Director and Faculty, Capital Trial Advocacy, Plano, Texas, August 2007
• Faculty, Criminal Trial Advocacy Program, Plano, Texas, August 2007
• Co-Course Director, One Day Capital Video Seminar, El Paso, Texas, August 2007
• Co-Course Director, Fifth Annual Forensics Seminar, Dallas, Texas, October, 2007
• Co-Course Director, Capital Murder Seminar, South Padre Island, Texas, November 2007
• Faculty, Cross Exam Seminar, Plano Texas, December 2007
• Faculty, Evidence Boot Camp, Plano, Texas, February, 2008
• Co-Course Director, Capital Murder, Habeas and Mental Health Seminar, San Antonio, Texas, February,
2008
• Co-Course Director, Death of a Child Seminar, Plano, Texas, March 2008
• Co-Course Director, Capital Voir Dire Seminar, Plano, Texas, April, 2008
• Presenter, Rural Association for Court Administration, Waco, Texas, April 2008
• Co-Course Director, Capital Trial Advocacy, Plano, Texas May, 2008
• Presenter and Faculty, Indigent Defense-El Paso, Texas, May 2008
• Co-Course Director, One Day Capital Video Seminar, Tyler, Texas, June 2008
th
• Attendee-NAACP Legal Defense and Educational Fund, Inc. 28 Annual Capital Punishment Training
Conference, Airlie Virginia, July 2008
• Co-Course Director, Mitigation Seminar, Plano, Texas, July 2008
• Co-Course Director, The mind and Criminal Defense, Plano, Texas, July, 2008
• Presenter, State Bar Advanced Criminal Law Course, San Antonio, Texas, July 2008
• Co-Course Director, Mitigation Seminar, Lubbock, Texas, August 2008
• Co-Course Director, Expert Witnesses in Capital Cases, Plano, Texas, August 2008
• Faculty, Presenter, Criminal Trial Advocacy Program, Plano, Texas, August 2008
• Co-Course Director, Sixth Annual Forensics Program, Dallas, Texas, October 2008
nd
• Presenter, 2 Annual Red Mass Ethics Seminar, Lubbock, Texas October 2008
• Presenter, SMU Capital Murder Clinic, Dallas, Texas, October 2008
• Co-Course Director and Presenter, Capital Murder Seminar, South Padre Island, Texas, November 2008
• Faculty, Cross Exam and Impeachment, Plano, Texas, December 2008
• Faculty, Evidence Boot Camp, Plano, Texas, January, 2009
• Co-Course Director, Capital Murder Seminar, Houston, Texas, February, 2009
• Co-Course Director, Capital Voir Dire, Plano, Texas May 2009
• Co-Course Director, Capital Trial Advocacy, Plano, Texas May 2009
• Co-Course Director, Mind and Criminal Defense, Plano, Texas, May, 2009
• Co-Course Director, Capital Mitigation, Plano, July 2009
• Presenter, State Bar Advanced Criminal Law Course, Dallas, Texas, July 2009
• Presenter, Criminal Defense Criminal Trial Skills and Trial Law Program, Plano, Texas, August, 2009
• Co-Course Director and Presenter, Experts, Plano, Texas, March 2010
• Co-Course Director, TCDLA Capital/Habeas Seminar, Austin, Texas February 2010
• Co-Course Director, Capital Voir Dire, Plano, Texas, March 2010
• Co-Course Director, Capital Trial Advocacy, Plano, Texas, May 2010
• Faculty, Capital Voir Dire, Plano, Texas 2011
• Presenter and Faculty, Trial Advocacy for Military Lawyers, Plano, Texas, August 2011
• Faculty, Capital Voir Dire, Plano, Texas 2012
• Co-Course Director, State Bar of Texas Advanced Criminal Law-Forensic Track, San Antonio, Texas, July
2012
• Faculty, Capital Voir Dire, Houston, June, 2013
• Faculty, Nuts and Bolts, Lubbock, January 2014
• Faculty, Dallas Indigent Defense, February, 2014
• Faculty, El Paso Forensics and Experts, September, 2014

Publications

• Editor - Texas Criminal Defense Lawyers Trial Notebook
• Co-Author – Texas Punishment-A Source Book for Defense Lawyers
• Original Editor of Texas Criminal Defense Lawyers Penal Code and Code of Criminal Procedure
• Former Managing Editor – Texas Criminal Defense Lawyers Capital Litigation Update
• Original Editor of Texas Criminal Defense Lawyers Non-Penal Code Crimes Annotated

Trial Level Experience in Capital Cases*

• United States v. Eli Mungia – Lubbock Division of the Northern District of Texas, 1994
nd
• State v. Robert Salizar – 72 District Court of Lubbock County, Texas, 1998
th
• State v. Eddie Rowton – 154 District Court of Lamb County, Texas, 1998
th
• State v. Raymond Leyva – 64 District Court of Hale County, 1997
th
• State v. Felton White – 137 District Court of Lubbock, County, 2000
st
• State v. Michael Arispe – 121 District Court of Terry County, Texas 1996
th
• State v. Eric Christensen – 364 District Court of Lubbock County, Texas 1998
th
• State v. Jesus Rameriz – 154 District Court of Lamb County, Texas 1997
th
• State v. Wesley Weaver - 237 District Court of Hockley County, Texas 1996
th
• State v. Arthur Wayne Johnson – 99 District Court, Lubbock County, Texas 2000
rd
• State v. Michael Rodriguez – 283 District Court, Dallas County, Texas 2001**

*I was appointed or hired as co-counsel on the above cases. Only 3 went to verdict as Death Penalty cases. The
remainder were either plead or the state or government waived death.
**I was hired as co-counsel on this case but withdrew prior to trial because I accepted a position as Capital Assistance
Counsel for TCDLA.

Post-Conviction Experience in Capital Cases

• Michael McBride v. Johnson
• Odell Barnes v. Johnson
• Michael Blair v. Johnson and Ex Parte Michael Blair
• Bobby Ray Hopkins v. Johnson
• Jaime Elizalde v. Dretke
• Joe Lee Guy v. Johnson
• Michael Rosales v. Johnson
• United States v. Bruce Webster
AFFIDAVIT

THE ST A TE OF TEXAS §
§
COUNTY OF LUBBOCK §

Before me, the undersigned authority, personally appeared Philip Wischkaemper, who upon his
oath deposed and stated the following:

"My name is Philip Wischkaemper. My Texas Bar number is 21802750. I have
been licensed to practice law in Texas since 1989. I am also licensed in the Federal
District Courts of the Northern District of Texas, The United States Fifth Circuit Court
of Appeals and the United States Supreme Court.

Currently, I work for the Lubbock County Private Defenders Office as the
Professional Development Director. My duties there include training all of the
appointed attorneys in Lubbock County, as well as overseeing and assisting the
appointed attorneys on their cases, as well as their overall progress as lawyers. My CV
is attached hereto and incorporated herein for all purposes as if set forth verbatim.

Mr. Vargas's new attorney, Frank Sellers, approached me about this case. Prior
to executing this affidavit, I was furnished by Mr. Sellers a copy of his Motion for New
Trial, an Affidavit executed by his client, Mr. Vargas, an Affidavit executed by Mr.
Vargas' Mother, Darcy Vargas and the offense report of Trooper Garza, the arresting
officer.

Mr. Sellers informed me that Vargas was represented by Lubbock-based
attorney Artie Aguilar. I also was informed that Aguilar was court-appointed due to
Vargas's indigent status. Sellers explained to me that Mr. Vargas was never shown any
of the discovery, never discussed the viability of a motion to suppress with his previous
attorney, never discussed a 38.23 jury instruction in the event a motion to suppress were
denied. Instead, Aguilar simply told Vargas that if he did not plead guilty, the 3-year
probation offer would be revoked, and Vargas would have to do 5-year probation (the
previous offer). I have also reviewed the motion for new trial and supporting exhibits.

If these allegations are true, this would constitute deficient performance by Mr.
Aguilar during the guilty-plea process. As the Supreme Court made clear in Padilla v.
Kenlllcky, 130 S.Ct. 1473 (2010), the ABA Standards guide what is professionally
reasonable in representing a defendant during the guilty-plea process. The ABA
Standards applicable here provide:

To aid the defendant in reaching a decision, defense counsel, after
appropriate investigation, should advise the de fondant of the alternatives
available and address considerations deemed important by defense
counsel or the defendant in reaching a decision. Defense counsel should

Amdnvit of Philip Wischlrncmpcr - Page 1
not recommend to a defendant acceptance of a plea unless appropriate
investigation and study of the case has been completed.

ABA Standard 14-3.2. Responsibilities of defense counsel - Guilty Pleas.

In my opinion, the following were important to Vargas in determining whether
to give up his right to trial: (1) the validity of the initial stop; (2) the validity of the
continued detention after the Trooper advised him he would receive a warning; (3) the
validity of Vargas's subsequent consent; (4) the potential success of a motion to
suppress; and (5) in the event the court denied the motion to suppress, whether those
issues could be raised at trial and at any subsequent appeal.

Additionally, the Texas State Bar's Performance Guidelines for Non-Capital
Indigent Defense, Guideline 4.1: Investigation, state:

Counsel has a duty to conduct, or secure the resources to conduct, an
independent case review and investigation as promptly as possible.
Counsel should, regardless of the client's wish to admit guilt, determine
whether the charges and disposition are factuallv and legallv correct
am/ i11for111 tlte clie11t ofpote11tial defe11ses to tile cltarges. Counsel
should explore all avenues leading to facts relevant both to the merits
and to the penalty in the event of conviction. (emphasis added).

There is no evidence that I have been made aware, either by documentation or
conversations with Mr. Sellers that indicate Mr. Aguilar perfonned any of the functions
of a proper and thorough investigation and evaluation of the case as required by the
ABA and Texas Guidelines. If that is indeed the case, then Aguilar's performance fell
below accepted professional norms.

In all fairness to Aguilar, he should be given the opportunity to respond to these
allegations. Sellers has also informed me that Aguilar has declined on multiple
occasions to speak about this case. In my opinion, the only way for him to be heard
would be for this Court to provide a live hearing.

If the allegations of the client and client's mother prove to be true, it is also my
opinion that Vargas was prejudiced by Aguilar's deficient performance. The law is clear
that Vargas only has to show that had he been advised of these things, he would have
exercised his constitutional right to a jury trial. It is important to note that this is not a
hopeless case. In fact, each of the issues above seem meritorious based on the trooper's
police report, which I reviewed in forming the opinions in this affidavit. Generally, law
enforcement is not allowed to detain an individual just to "check on" the vehicle's
occupants. The trooper then goes onto say that he asked for consent "after the stop was
completed." This, too, seems to run afoul of the Fourth Amendment and Article 38.23.
(See: VS v. Dortch, 199 F. 3d 193 - Court of Appeals, 5th Circuit 1999) As Vargas
stated in his affidavit, had he been advised about whether a motion to suppress might be
successful or whether raising factual issues before the jury at trial might have been

Affidavit of Philip Wischkucmper - Page 2
successful, he would have insisted on going to trial. Based on the facts of his case, this
would have been a perfectly reasonable decision in my opinion.

Sellers also asked me to give background about the appropriate number of cases
for court-appointed attorneys. It is well known that Aguilar is responsible for all
indigent defense in the 106th District, which covers four counties. In addition, he
maintains an active trial practice. For our Lubbock County court-appointed attorneys,
our questioning of active lawyers has indicated that the maximum number of clients one
attorney can effectively represent at any given time is 65. Each of those clients may
have multiple cases, therefore, the caseload may be and usually is higher than 65. In
our experience, however, the focus should be on the client, and not the number of cases
a single client has.

The nature of indigent defense is that many of our clients are incarcerated. Our
internal rule at the Lubbock Private Defender Office (Pursuant to the State Bar
Guidelines on Non-Capital Representation) is that each client must be contacted every
30 days to update them on their case. With as many as half and sometimes more of
their clients in jail at a given time, it is difficult for an attorney to fulfill his or her
obligations to more than the 65 client limit we impose. However, we still demand that
the attorney maintain regular contact and keep the client informed. From what I can tell
from the affidavits given and conferences with Mr. Sellers, Aguilar failed under State
Bar of Texas Guideline 1.3 B to "maintain regular contact with the client and keep the
client informed of the progress of the case.

Mr. Aguilar is the Contract Attorney for the 1061h Judicial District. He covers
the counties of Dawson, Gaines, Garza and Lynn pursuant to a contract with the 1061h
Judicial District. In a review by the Indigent Defense task Force of Gaines County's
Indigent Defense System released in June, 2013, the report reflected:

The monitor asked the contract attorney for the total number of
cases to which he had been appointed in FY2012. The contract attorney
reported that he had been appointed to 254 felony cases and two appeals
cases across the four counties involved in the contract. In the monitor's
visit with the contract attorney, the attorney noted that the contract
represents about 60% of his total work. Based on the recommended
caseload limitations set in the contract, if the contract attorney did no
extra work outside of the contract, the attorney would be limited to 150
felony appointments per year. The 254 felony appointments and two
appeals appointments are equivalent to 1. 77 attorneys working at the
maximum caseload recommendations. If the contract attorney's
assessment that the contract comprises about 60% of his annual
workload is accurate, 2.95 attorneys would be required to handle this
annual workload. This caseload exceeds the limit set by the contract.

It appears Mr. Aguilar is, as many public defenders are, overloaded. Because of
his excessive workload, he is unable to provide sufficient attention to each case

Affidavit of Philip Wischlmemper- Page 3
assigned to him. As a resul t, Mr. Vargas· case was compromised by not being fully
investigated factuall y nor analyzed suniciently for legu l issues. As a result, Mr.
Aguilar's conduct foll below professional norms and. as a result, Mr. Vargas was
pre_'udiced.

hilip Wi schbempcr

Subscribed and sworn to before me on Septemberlc, Slate of Tam
My eommmi Expires 04'25-2016

Affida vit of Philip Wischlwcmper - P age~

Exhibit  I
Affidavit  of  Frank  Sellers

AFFIDAVIT

THE STATE OF TEXAS §
§
COUNTY OF LUBBOCK §

Before me, the undersigned authority, personally appeared Frank Sellers, who upon his oath
deposed and stated the following:

1. My name is Frank Sellers. I am over 18 years of age, have personal knowledge of the
facts set forth below and am competent and authorized to make this affidavit. Following
his guilty plea where he was represented by Artie Aguilar, I agreed to take over Victor
Vargas's case as his pro bono counsel in an attempt to withdraw his guilty plea.

2. On July 23, 2014, I was in the 106th District Court in Dawson County appearing on
another matter. As I was gathering my belongings to leave, I observed Vargas enter his
guilty plea. Outside of the courthouse, I overheard Vargas telling his Mom "he had no
choice." I asked if they would agree to tell me what happened.

3. Vargas and his mother then recounted the facts contained in their affidavits. Even though
he had just entered his plea, Vargas told me it was not his intent to plead guilty but that
Aguilar would not show him the video, police report, or lab report; instead, Aguilar told
Vargas he could either plead guilty for a 3-year probation or a 5-year probation. Vargas
informed me that Aguilar made clear he had no legal defense whatsoever. Without any
personal review of the evidence or any advice on the law, Vargas thought he had to plead
guilty.

4. I agreed to represent Vargas pro bono with the hopes of withdrawing his plea. I contacted
Philip Wischkamper who agreed to provide an affidavit. Wischkaemper also told me I
should contact the Texas Indigent Defense Commission (TIDC) because they would be
familiar with what was acceptable with respect to the appropriate caseload for court-
appointed attorneys.

5. I emailed with Jim Bethke, Executive Director of TIDC, who put me in touch with his
staff. They sent me the report compiled on Gaines County from FY2012, as well as a
letter in response from Judge Schildknect. It was apparent that Aguilar was completely
overburdened with the contract he had signed with the I 06th District alone, yet he was
still accepting private cases on the side.

6. Vargas signed a release for Aguilar's file, which Aguilar provided me. After reviewing
the file, it was clear that very little work had been done, and that no notes about discovery
were in the file. Nor was there any transmittal letter that would customarily be sent to the
client with a copy of his discovery. One note, presumably by Aguilar's staff, in Aguilar's
Vargas file is particularly interesting: "2-13-14 Mom or daughter said it was ridiculous
the way you were handling this case."
7. In order to give Agui lar every opportunity to explai n what happened, I contacted
Aguilar's office by telephone in August of20 14. Aguilar conveyed to my legal assistant
that he "declined" to speak with me.

8. I tried to speak with Aguilar a second time in the Dawson County courtroom on
September 3, 2014. He told me be would not speak with me and that all I was trying to do
was "make things difficult," because that is "all [I] ever do."

9. I contacted Pam Huse, the Dawson County District Clerk, and requested the list of acti ve
cases Agui lar had in that County at the time. In Dawson County alone, Aguilar had 47
pending felony cases, 34 pending probation revocations, and I pending appeal . From
personal knowledge, the pending appeal is on a case that I tried. The tri al lasted two
weeks. Reading the record alone would take two full uninterrupted days, nevermind the
complex legal issues that must be written on. I then contacted Lubbock County to see
how many active cases Aguilar had in Lubbock (10 active, open criminal cases; and 10
active, open civil cases). Just in Lubbock and Dawson counties alone, Aguilar is
dangerously close to the maximum number of cases recommended by the ABA.

10. IL is my opinion that the indigent defense system in the l06th District suffers systemic
defects. Agui lar probably does the best he can given the confines of hi s budget and time
restraints. Unfortunately, that is not enough, and Vargas suffered prejudice from
Agui lar's deficient performance and lack of legal counsel.

Subscribed and sworn to before me on October ~ 2014, by Frank Sellers.

~ lf!fj;··. MARINA MEDRANO
;!b°.JJ{_i') MY COMMISSION EXPIRES
~ ·-.~~i';:••~f
J '' •1ou••'
February 14, 2017 1f\MlQJV:rrliJ~M)fl
Notary Public, State of Texas

Affid11vit of J~rnnl< Scllcrlj - Pu~c 2
Tab #4
Notice of Appeal
10/24/2014 16:19 8067638199 HURLEY & GUINN PAGE 02/03
FILED
IN COURT OF APPEALS
ELEVENTH DISTRICT

OCT 2 8 2(M

Cause No. 13-7245

State of Texas § In the 106th District Court
§
v. of

Victor Vargas § Dawson County, Texas

Notice of Appeal

To The Honorable Judge Of Said Court:

Comes Now the Defendant in the above-styled and numbered cause, through
his undersigned pro bono counsel, and files this notice of appeal. In support thereof
Defendant would show this Honorable Court as follows:

On July 23, 2014 judgment and imposition of sentence was entered against the
Defendant. Defendant timely filed a motion for new trial and requested a hearing. Despite
these requests supported by affidavit, the court overruled the motion by operation of law on
October 21, 2014. Therefore, this notice is timely filed.

Defendant hereby gives written notice of appeal to the Court of Appeals for the
Supreme Judicial District of Texas, at Eastland, Texas, from the trial court's (1) denial of a
hearing on his motion for new trial, and (2) the trial court's implicit legal ruling on his
motion for new trial.

Respectfully submitted,

Hurley, Guinn & Sell

Uj:
o
<rank Sellers
o
U_ Texas Bar No. 24080305
o
CO

1805 13th Street
Q
Lubbock, Texas 79401
10/24/2014 16:19 8067638199 HURLEY & GUINN PAGE 03/03

P: 806.771.0700
F: 806.763.8199
Pro Bono CounselforDefendant-Appellant

Certificate of Service

I certify that today, October 24, 2014, a copy of the foregoing was served yp^on the
Dawson County Distria Attorneys Office, viafax number 806-872-3174.
Tab #5
Order to Show Cause (Oct. 28, 2014)
FILE COPY

JIM R. WRIGHT
CHIEF JUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK

MIKE WILLSON
Eleventh District of Texas TELE: 254/629-2638
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P. O. BOX 271 sherry.williamson@txcourts.gov
JOHN M. BAILEY
JUSTICE EASTLAND, TEXAS 76448 www.txcourts.gov/11thcoa.aspx

October 28, 2014
1
Frank Sellers Michael S. Munk, District Attorney
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

RE: Appellate Case Number: 11-14-00283-CR Trial Court Case Number: 13-7245
Style: Victor Vargas v. The State of Texas

Mr. Sellers is requested to respond immediately to sherry.williamson@txcourts.gov indicating
receipt of this notification.

We have this day received and filed a copy of the Notice of Appeal, Motion for New Trial, the
Trial Court’s Certification of Defendant’s Right to Appeal and the trial court information form from the
District Clerk in the above cause. This case bears the above docket number that should be used on all
future correspondence and filings.

We note that the Notice of Appeal appears to be untimely filed in the trial court. The due date
was October 21, 2014. TEX. R. APP. P. 26.2. The sentence was imposed on July 23, 2014; a Motion for
New Trial was timely filed on August 22, 2014; and the Notice of Appeal was filed on October 24, 2014,
93 days after the date that the sentence was imposed.

Appellant may file a Motion for Extension of Time to File the Notice of Appeal, providing a
reasonable explanation for the failure to timely file the Notice of Appeal, which may include proof of
mailing. The motion is due on or before November 5, 2014. TEX. R. APP. P. 10.5(b), 26.3. Absent a
timely filed Notice of Appeal or Extension of Time to File the Notice of Appeal, this appeal may be
dismissed for want of jurisdiction. TEX. R. APP. P. 25.2.

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.

NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals.
Documents MUST contain an email address.

Respectfully yours,

Sherry Williamson, Clerk

cc: District Clerk - Dawson County (DELIVERED VIA E-MAIL)
Carter Schildknecht, Judge (DELIVERED VIA E-MAIL)
Tab #6
Court of Appeals Opinion (issued Nov. 20, 2014)
Opinion filed November 20, 2014

In The

Eleventh Court of Appeals
__________

No. 11-14-00283-CR
__________

VICTOR JAMES VARGAS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 13-7245

MEMORANDUM OPINION
The trial court convicted Victor James Vargas, Appellant, of the state jail
felony offense of possession of methamphetamine. Appellant attempts to appeal
that conviction. In a letter dated October 28, 2014, this court notified the parties
that the Trial Court’s Certification of the Defendant’s Right to Appeal, which was
signed by Appellant and his attorney, indicated that Appellant had waived his right
of appeal in this case. See TEX. R. APP. P. 25.2(a)(2), (d). We requested that
Appellant respond on or before November 5, 2014, and show grounds to continue
the appeal. Appellant filed a motion for extension of time to file his notice of
appeal, which this court granted, but he has not filed any response related to his
waiver of appeal.
A valid waiver of appeal, whether negotiated or non-negotiated, prevents a
defendant from appealing without the trial court’s consent. Monreal v. State, 99
S.W.3d 615, 622 (Tex. Crim. App. 2003). Appellant has not obtained the trial
court’s consent to appeal, and Appellant’s waiver appears to be valid. The
documents on file in this case indicate that Appellant and the State entered into a
plea agreement in which Appellant waived various rights and that, upon
Appellant’s plea of guilty, the trial court convicted Appellant and assessed his
punishment pursuant to the terms of the plea agreement. Appellant acknowledged
that he signed a waiver of his right to appeal. The plea papers are signed by both
Appellant and his counsel. Thus, the trial court’s certification—reflecting that
Appellant has waived his right of appeal—is supported by documentation and is
not defective. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005).
Because Appellant waived his right to appeal in this cause and because the trial
court certified that Appellant has no right of appeal, we must dismiss this appeal
without further action. TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675,
680 (Tex. Crim. App. 2006).
Accordingly, this appeal is dismissed.

PER CURIAM
November 20, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

2
Tab #7
Motion for Rehearing (filed Dec. 31, 2014)
ACCEPTED

ELEVENTH COURT OF APPEALS
EASTLAND, TEXAS
12/9/2014 11:14:52 AM
SHERRY WILLIAMSON
NO. 11-14-00283-CR CLERK

VICTOR VARGAS § IN THE COURT OF APPEALS
§ RECEIVED IN
11th COURT OF APPEALS
V. § FOR THE ELEVENTH
EASTLAND, DISTRICT
TEXAS
12/9/2014 11:14:52 AM
§ SHERRY WILLIAMSON
Clerk
THE STATE OF TEXAS § IN EASTLAND, TEXAS

Appellant’s  Motion  for  Rehearing
December 31 2014
TO  THE  HONORABLE  JUSTICES  OF  THE  COURT  OF  APPEALS:

BACKGROUND

On  October  28,  2014,  this  Court  issued  a  letter  asking  Appellant  to

show   cause   why   he   should   be   allowed   to   appeal   after   he:   (1)   filed   a

late  notice  of  appeal,  and  (2)  waived  his  right  to  appeal.  Undersigned

counsel   filed   a   motion   to   extend   time   to   file   notice   of   appeal,   but

unfortunately  simply  missed  the  second-­‐‑to-­‐‑last  paragraph  asking  for  a

reasonable  explanation  for  why  Vargas  she  be  allowed  to  continue  his

appeal  post-­‐‑waiver.

While   no   excuse   typically   justifies   missing   deadlines,   undersigned

counsel  would  point  out  to  the  Court  that  at  that  time,  he  was  in  the

eighth   day   of   a   four-­‐‑week   capital   murder   jury   trial   styled,   State   v.

1
Thomas   Michael   Dixon,   Cause   No.   2012-­‐‑435,942,   In   the   140th   District

Court   of   Lubbock   County,   Texas.   Trial   in   Dr.   Dixon’s   lasted   for   four

weeks  and  concluded  on  November  18,  2014.

In  light  of  this  and  the  reasons  below,  Appellant  asks  this  Court  to

reinstate  his  appeal  and  allow  him  to  submit  a  brief  on  the  merits.

RELEVANT  FACTS

Prior  to  his  guilty  plea,  Appellant  Vargas  was  represented  by  court-­‐‑

appointed   counsel,   Artie   Aguilar.   After   his   guilty-­‐‑plea,   undersigned

counsel   agreed   to   represent   Vargas   pro   bono   to   file   a   motion   for   new

trial   attempting   to   reverse   Vargas’s   guilty   plea   because   it   was   both

involuntary   and   the   result   of   ineffective   assistance   of   counsel.   The

chronology  from  there  is  as  follows:

• August  22,  2014:   Motion   for   New   Trial   filed   with   Dawson   County

District   Clerk.   Importantly,   this   motion   contained   the   following

exhibits:  affidavits  from  Victor  Vargas,  Darcy  Vargas,  Frank  Sellers,

as   well   as   the   arresting   officer’s   police   report,   and   the   lab   report

from  the  DPS  lab.

2
• September   19,   2014:   Defendant’s   Second   Request   for   Hearing   on

Motion  for  New  Trial  filed  with  Clerk.

• October   3,   2014:   First   Amended   Motion   for   New   Trial   filed   with

Clerk.   This   motion   contained   the   following   additional   exhibits:

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

Texas   (file   marked   December   9,   2013);   Letter   from   Judge

Schildknecht   to   Joel   Lieurance,   Policy   Monitor   at   TIDC   (July   19,

2013);   Texas   Indigent   Defense   Commission,   Review   of   Gaines

County’s  Indigent  Defense  Systems  (June  11,  2013);  and  Affidavit  of

Philip  Wischkaemper.

It   is   beyond   dispute   that   the   timely   filed   motion   for   new   trial   and

amended  motoin  for  new  trial  raised  matters  that  were  indeterminable

from   the   record—whether   Vargas’s   guilty-­‐‑plea   was   voluntary   and

whether   it   was   the   result   of   ineffective   assistance   of   counsel.

Nevertheless,   the   trial   court   allowed   the   motion   to   overrule   by

operation  of  law,  and  without  a  hearing.

Vargas   subsequently   filed   notice   of   appeal   of   the   trial   court’s   “(1)

3
denial  of  a  hearing  on  his  motion  for  new  trial,  and  (2)  the  trial  court'ʹs

implicit  legal  ruling  on  his  motion  for  new  trial.”  (Appellant’s  Notice

of  Appeal,  at  1).

ARGUMENT  FOR  REHEARING

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

4
that   reasonable   grounds   exist   for   holding   that   such   relief   could   be

granted.”).

Bad  legal  advice  or  no  legal  advice  constitutes  ineffective  assistance.

Ex   Parte   Moussazadeh,   361   S.W.3d   684,   692   (Tex.   Crim.   App.   2012)

(misinforming   defendant   about   parole   eligibility   ineffective);   Ex   parte

Gallegos,  511  S.W.2d  510,  513  (Tex.  Crim.  App.  1974)  (“In  applying  the

reasonably  effective  assistance  standard  to  the  facts  of  the  instant  case,

we   conclude   .   .   .   that   petitioner   Gallegos   was   denied   the   effective

assistance  of  counsel  when  counsel  failed  to  advise  Gallegos  how  the

facts   of   his   case   related   to   the   Texas   law   of   robbery,   thus   preventing

the  guilty  plea  from  being  knowingly  and  voluntarily  entered.”).

The   federal   courts   agree.   In   Cavitt,   defense   counsel   advised   Mr.

Cavitt   to   plead   guilty   following   a   traffic   stop   drug   case   with   Fourth

Amendment   issues.   United   States   v.   Cavitt,   550   F.3d   430,   441   (5th   Cir.

2008).   This   advice,   however,   came   before   the   defense   received   the

video  of  the  stop.  Id.  When  defense  counsel  did  receive  the  video,  he

refused  to  let  the  defendant  view  it  before  deciding  to  plead  guilty.  Id.

5
The  Fifth  Circuit  held  that  these  were  matters  indeterminable  from  the

record  but  had  an  appreciable  chance  of  success  —  both  the  ineffective

assistance   claim   and   the   suppression   issue.   The   Cavitt   court   reversed

and  sent  the  case  back  to  the  district  court  and  required  a  hearing.  Id.

This   Court   must   do   the   same.   Matters   raised   are   indeterminable

from   the   record.   No   one   knows   what   was   said   during   the   Aguilar’s

representation   of   Appellant   Vargas.   Vargas’s   affidavit,   however,

makes   clear   that   not   much   if   any   advice   was   given,   except   to   plead

guilty,  while  refusing  to  let  Appellant  view  the  video  of  his  traffic  stop.

Like   in   the   cases   cited   above,   Vargas’s   affidavit   established   matters

that   reasonably   rose   to   the   level   of   ineffective   assistance   of   his   court-­‐‑

appointed   counsel.   Worse,   Aguilar   has   compounded   the   issue   by

refusing   twice   to   provide   an   affidavit   or   even   speak   with   Vargas’s

undersigned  counsel.  The  law  is  clear.  A  hearing  is  required.

CONCLUSION  &  PRAYER  FOR  RELIEF

Wherefore,   Vargas   prays   this   Court   reinstate   his   appeal   and   allow

him  to  more  fully  brief  the  issue  above.

6
Respectfully  submitted,

___________________________
Frank  Sellers
Texas  Bar  No.  24080305
HURLEY,  GUINN  &  SELLERS
1805  13th  Street
Lubbock,  Texas  79401
806.771.0700  tel
806.763.8199  fax
frank@hurleyguinn.com
Attorney  for  Appellant

CERTIFICATE  OF  SERVICE
Pursuant   to   TEX.   R.   APP.   P.   9.5(d),   the   foregoing   was   served   on
opposing   counsel   via   email   to   michael.munk@co.dawson.state.tx.us on
December  9,  14.

_________________________
Frank  Sellers
CERTIFICATE  OF  COMPLIANCE
Pursuant   to   Texas   Rule   of   Appellate   Procedure   9.4(i)(2),   I   hereby
certify   that   this   motion   contains   960   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

7
Tab #8
Denial of Motion for Rehearing (Jan. 22, 2015)

FILE COPY

JIM R. WRIGHT
CHIEF JUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK

MIKE WILLSON
Eleventh District of Texas TELE: 254/629-2638
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P. O. BOX 271 sherry.williamson@txcourts.gov
JOHN M. BAILEY
JUSTICE EASTLAND, TEXAS 76448 www.txcourts.gov/11thcoa

January 22, 2015

Frank Sellers Michael S. Munk, District Attorney
Hurley & Guinn Dawson County
1805 13th Street 106th Judicial District
Lubbock, TX 79401 P.O. Box 1124
* DELIVERED VIA E-MAIL * Lamesa, TX 7933

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4052962. Public record. Not legal advice.