Beruflich Dokumente
Kultur Dokumente
13-18-00257-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/17/2018 3:49 PM
Dorian E. Ramirez
CLERK
13-18-00257-CR
Ed Stapleton
Stapleton & Stapleton
2401 Wildflower
Brownsville, Texas 78526
1
PARTIES TO THE CASE
Luis V. Saenz
District Attorney
Bar No. 24055096
946 E. Harrison St.
Brownsville, Texas 78520
956-544-0849
2
Representing the Appellant at Trial:
Edward Stapleton
Stapleton & Stapleton
Bar No. 19058400
2401 Wildflower Dr. Ste. C
Brownsville, Texas 78525
956-504-0882
3
TABLE OF CONTENTS
Contents
Point of Error Number One: The trial judge erred by relying on an invalid
order to accept Appellant’s written waiver of his right to a jury trial. ............... 14
Point of Error Number Two: Appellant received ineffective assistance of
counsel when his attorneys failed to develop and present mitigation evidence for
the punishment phase of his trial. ....................................................................... 16
Point of Error Number Three: Appellant received ineffective assistance of
counsel when his attorneys failed to investigate the judge before advising him to
have Judge Banales assess punishment instead of have a jury assess punishment.
............................................................................................................................. 25
SUMMARY OF THE ARGUMENT .................................................................... 10
PRAYER ................................................................................................................ 35
4
TABLE OF AUTHORITIES
Cases
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) ................................. 22
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) ..................... 13, 25
Ex Parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006) ....................... 21
Harrison v. State, 187 S.W.3d 429 (Tex. Crim. App. 2004) ................................. 13
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) .......................... 16
Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998)........................... 17
Lee v. United States, 137 S.Ct. 1958, 1962 (2017) .......................................... 26, 33
McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992) ..................... 17
Milburn v. State, 15 S.W.3d 267, 270, 271 (Tex. App.—Houston [14th Dist.] 2000
............................................................................................................................. 20
Miller v. State, 548 S.W.3d 497, 498 (Tex. Crim. App. 2018) ................. 26, 33, 34
5
Rompilla v. Beard, 545 U.S. 374, 391-92, 125 S. Ct. 2456, 2468-69, 162 L. Ed. 2d
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) ........................... 17
Wiggins v. Smith, 539 U.S. 510, 534-35, 123 S. Ct. 2527 2542, 156 L. Ed. 2d 471
(2003) .................................................................................................................. 20
Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389) .......... 17
Other Authorities
Rules
6
13-18-00257-CR
COURT OF APPEALS
IN THE THIRTEENTH JUDICIAL DISTRICT COURT
GILBERTO ESCAMILLA §
APPELLANT, § APPEAL FROM THE 107TH
§ JUDICIAL DISTRICT COURT
VS. § CAMERON COUNTY, TEXAS
§
STATE OF TEXAS § CAUSE NO. 2017-DCR-2220-A
APPELLEE. §
respectfully submits this, his brief, and seeks that his sentence be reversed and he
Cameron County, Texas. On December 17, 2017, Gilberto Escamilla was charged
7
by indictment with two counts under the Texas Penal Code section 31.03(e)(7). CR
P. 61. After being duly admonished of the consequences on April 20, 2018,
Appellant pled guilty to count two of the indictment in the 107th Judicial District
Court in Cameron County, Texas before the Honorable Judge J. Manuel Banales
and count one was dismissed. RR Vol. 5 P.8-92. On this day, Judge Banales assessed
Vol. 5 P. 49.
Point of Error Number One: The trial judge erred by relying on an invalid order
when his attorneys failed to develop and present mitigation evidence for the
counsel when his attorneys failed to investigate the judge before advising him to
have Judge Banales assess punishment instead of have a jury assess punishment.
1
The Clerk’s Record on Appeal is cited “CR”.
2
The Reporter’s Record on Appeal is cited “RR”.
8
STATEMENT OF FACTS
Juvenile Detention Center.” CR P. 6. The case was assigned, under cause number
2017-DCR-2220, to the 107th Judicial District of Cameron County, Texas where the
an “Order of Referral” under Texas Government Code Sec. 54A.007 that purported
to refer Cameron County Associate Judge Louis Sorola to a list of matters arising
out of a criminal case. On December 12, 2017, Judge Euresti voluntarily recused
himself because he was one of eight district judges who oversaw the operations of
the Darrel B. Hester Juvenile Detention Center of Cameron County, Texas during
the alleged events that gave rise to Appellant’s criminal prosecution. CR. P. 10. On
December 13, 2017, the Presiding Judge for the Fifth Administrative Region of
Texas, the Honorable Missy Medary, assigned the Honorable Manuel Banales to
preside over the case. CR. P. 13. On April 9, 2018, standing in lieu of Judge Banales,
Cameron County, Texas Associate Judge, Louis Sorola, consented and approved
Appellant’s written waiver of his right to a jury trial. RR Vol. 4 P. 6. On April 20,
9
2018, Appellant pled guilty to count two of the indictment before Judge Banales.
RR. Vol. 5 P. 8. Count One of the indictment was dismissed since it was “subsumed
into Count two.” RR Vol. 5 P. 9. Judge Banales found Appellant guilty of theft by
a public servant, a first-degree felony. RR Vol. 5 P. 46. The written waiver of trial
by jury, signed by Associate Judge Sorola, was not introduced as an exhibit during
the guilt or innocence phase of the trial before Judge Banales. RR Vol. 5 P. 9. After
hearing witness testimony and other evidence, Judge Banales sentenced Appellant
to 50 years in prison, ordered he pay a $10,000 fine, and ordered Appellant pay
P. 49-50. On May 11, 2018, Appellant filed his Motion for New trial claiming
presided over a hearing on Appellant’s Motion for a New Trial and denied the
Point of Error Number One: Invalid Order of Referral appointing Associate Judge
Sorola
County Judges. Therefore, Associate Judge Sorola did not have authority to preside
10
over Mr. Escamilla’s case and any action taken by Associate Judge Sorola is null
and void.
In the alternative, the Order of Referral became void when Judge Euresti
Judge Sorola lost his authority to preside over Mr. Escamilla’s case when Judge
Euresti became a disqualified judge. Without a new Order of Referral from Judge
Banales, Associate Judge Sorola’s actions were not statutorily authorized and any
valid, Associate Judge Sorola did not have authority to accept Mr. Escamilla’s
written waiver of his right to a jury trial because Mr. Escamilla’s case did not
involve a plea agreement. Therefore, any action taken by Associate Judge Sorola in
Mr. Escamilla’s case is null and void. Appellant’s sentence should be reversed and
remanded.
sentencing hearing was an error so serious that Appellant was not afforded his Sixth
The evidence presented at the hearing on the Motion for New Trial
11
counsel’s deficient performance prejudiced Mr. Escamilla’s case. But for the
deficient performance of trial counsel, a different result would have occurred. For
these reasons, Mr. Escamilla received ineffective assistance of counsel. The trial
judge abused his discretion in not evaluating trial counsel’s deficient performance
in light of the voluntarily testimony of twelve friends and family members at the
hearing on the Motion for New Trial. By neglecting the weight of the testimonial
prior to advising him to waive his right to a jury trial and jury-assessed punishment
was an error so serious that Appellant was not guaranteed his Sixth Amendment
right to counsel. A Defendant’s waiver of the right to a trial by jury must meet
Constitutional scrutiny and therefore the judicial system developed a process that
incorporates the rigorous investigation of members of the community into the trial
itself. This process is called voir dire. The overarching purpose of voir dire is to
afford defendants the ability to investigate the potential fact-finders that will sit in
also afforded the ability to investigate the potential fact-finders ability to assess a
fair sentence upon a finding of guilt. In evaluating whether a defendant has properly
12
waived his constitutional right to a jury trial, the judicial system relies heavily on
investigation of the trial judge before advising on whether to waive a trial by jury,
uninformed waiver of his right to a jury trial—a decision he would not have made
had it not been for the improper information provided by his defense
STANDARD OF REVIEW
“An appellate court reviews a trial court’s denial of a motion for new trial
under the ‘abuse of discretion’ standard.” Charles v. State, 146 S.W.3d 204, 208
(Tex. Crim. App. 2004); see Harrison v. State, 187 S.W.3d 429 (Tex. Crim. App.
2004). An appellate court “must view all the evidence in the light most favorable to
the trial court’s ruling and presume that all reasonable factual findings that could
have been made against the losing party were made against that losing party.”
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). “We do not
substitute our judgment for that of the trial court, but rather we decide whether the
13
Point of Error Number One: The trial judge erred by relying on an invalid
order to accept Appellant’s written waiver of his right to a jury trial.
(A) Order of Referral not approved by two-thirds of Cameron County Judges.
In order to appoint an associate judge to serve more than one court, under
must be made as established by local rule, but in no event by less than a vote of
two-thirds of the judges under whom the associate judge serves.” Tex. Gov’t Code
Sec. 54A.002(d). The order conferring authority on Judge Sorola is signed only by
Judge Euresti as presiding judge. SUPPL.3 4-8. There is no showing in the order
that two-third of the judges required in the order voted on the order, nor are there
any other judge’s signatures that would show acceptance of Judge Sorola as
associate judge. Therefore, the Order of Referral fails to give authority to Judge
Sorola in this case. Since Judge Sorola was unauthorized to preside over the merits
written waiver of his right to have his case tried before a jury is null and void and
the record reflects that Texas Code of Criminal Procedure Article 1.13 unfulfilled.
(B) Judge Euresti’s Order of Referral became void when he recused himself as
presiding judge.
Assuming without agreeing that the order is valid in Judge Euresti’s Court,
the Order of Referral still fails to confer Judge Sorola authority. Texas Government
3
The Clerk’s Supplemental Record on Appeal is cited “SUPPL.”.
14
Code Sec. 54A.007 states, “[t]o refer one or more cases to an associate judge, a
judge must issue a written order of referral that specifies the associate judges duties.
Judge Euresti signed the “Order of Referral” appointing Judge Sorola on October
3, 2017. SUPPL. 4-8. Judge Euresti recused himself from Mr. Escamilla’s case on
December 12, 2017. CR 10. Because Judge Euresti was a “disqualified judge”
under Texas Code of Criminal Procedure Art. 30.02 in this cause, Judge Sorola no
longer served “at the will of the judge of that court.” Tex. Gov’t Code Sec. 54A.004
(emphasis added). The record is absent of an order of referral from Judge Banales
specifying his approval of an associate judge in this case. Therefore, Judge Sorola
lacked authority to preside over any matter once Judge Banales was assigned as the
(C) Associate Judge Sorola did not have authority to preside over a case without a
plea agreement.
Associate Judge Sorola was not authorized to take action on this case because
no plea agreement was announced on the record. Although an associate judge may
take a negotiated plea of guilty under Texas Government Code Sec. 54A.006(1), no
the record. Presuming without agreeing that the Order of Referral is valid, section
(d) states, “An associate judge may select a jury.” SUPPL. 5. Except, as provided
in Subsection (b) of the Order of Referral, an associate judge may not preside over
15
a trial on the merits, whether or not the trial is before a jury.” Therefore, Associate
Judge Sorola did not have authority to preside over Mr. Escamilla’s written waiver
of his right to a jury trial and the record is void of all requirements under Texas
Code of Criminal Procedure Article 1.13. Therefore the sentence should be reversed
counsel when his attorneys failed to develop and present mitigation evidence
mitigating evidence at the sentencing hearing was an error so serious Mr. Escamilla
did not enjoy the right to have assistance of counsel for his defense guaranteed by
based on prevailing professional norms, and (2) but for counsel's errors, there is a
reasonable probability the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). This standard of proof
of ineffective assistance applies to the punishment phase as well as to the trial stage
of criminal proceedings. Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003); Hernandez
16
v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). A "reasonable probability" is
outcome." Wiggins, 123 S.Ct. at 2542; Strickland, 466 U.S. at 694; Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d
954, 956 (Tex. Crim. App. 1998). It is an appellant's burden to prove a claim of
S.W.3d at 813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824,
843 (Tex. Crim. App. 1992). The appellant must satisfy both prongs of
the Strickland test, or the claim of ineffective assistance will fail. Wiggins, 123 S.Ct.
at 2535; Strickland, 466 U.S. at 700; Garcia v. State, 57 S.W.3d 436, 440 (Tex.
(2004). Instead, the Court defines the deference owed allegedly strategic judgments
judgments. Wiggins, 123 S.Ct. at 2535. A failure to uncover and present mitigating
evidence cannot be justified as a tactical decision when defense counsel has "not
background.'" Wiggins, 123 S.Ct. at 2535 (quoting Williams v. Taylor, 529 U.S.
362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389); see also Ex Parte Duffy, 607 S.W.2d
17
507, 526 (Tex. Crim.App.1980), overruled on other grounds by Hernandez, 988
S.W.2d at 771 (it may not be argued that a given course of conduct is within the
realm of trial strategy unless and until the trial attorney has conducted the necessary
legal and factual investigation that would enable him to make an informed, rational
decision).
In addressing the first prong of Strickland, Appellant urges that no trial strategy
existed to support the limitations his trial counsel placed on investigating and
testified as an expert and established the standard that even when the client resisted
exposing his friends and family to the trial process, it is incumbent upon the lawyer
on 3/20/18 at 8:27 AM. CR P. 99. According to Mr. Elizondo, the purpose of this
filing was to persuade Judge Banales to consider the lower end of the range of
100. Due to the logistics regarding e-filing in Cameron County, Texas, the
Judge Banales pronounced Appellant’s sentencing the same day Mr. Elizondo e-
18
Moreover, Mr. Elizondo prepared an exhibit containing pictures of family members
Appellant kept in his wallet but Mr. Elizondo ultimately ruled against introducing
the exhibit into the trial record at Appellant’s sentencing hearing. RR NT Vol. 2 P.
101-102. Mr. Elizondo explained that the reason he did not present character
witness testimony at Appellant’s sentencing hearing was based on the advice and
request of Appellant. RR NT Vol. 2 P. 109. At the hearing on the Motion for New
Trial, Mr. Elizondo summarized his understand of the obligation a defense attorney
NT Vol. 2 P. 108:
A. Well, from my reading of the Rompilla case it was a situation where the
client was not helpful in terms of mitigation and presented no evidence to his
counsel, other than saying, I lived an uneventful life and I don't want my family
to testify. And I think that there was some additional circumstances in that
case, but the Court basically held that the attorney would have an additional
obligation, despite what the defendant had represented to him, to look into
some additional mitigation. That case dealt more specifically with issues of
criminal history, but I can see where it would be incumbent on an attorney,
despite the wishes of the client, to take some actions that are not specifically
asked for or authorized by him.
Q. As you sit here today, having reviewed Rompilla, and with the experience
that you have today, should a professional like you and like those of us who do
first degree felonies, should we insist on mitigation investigation and
evidence?
19
In the capital murder context, the United States Supreme Court has held that
cooperation of a defendant. see also Rompilla v. Beard, 545 U.S. 374, 391-92, 125
S. Ct. 2456, 2468-69, 162 L. Ed. 2d 360 (2005). The Supreme Court has also ruled
that the Sixth Amendment to the United States Constitution is violated when
defense counsel overlooks evidence that a defendant in a death penalty case had
"experienced severe privation and abuse in the first six years of his life while in the
custody of his alcoholic, absentee mother," had "suffered physical torment, sexual
molestation, and repeated rape during his subsequent years in foster care," and had
cause a lack of confidence in the verdict. See Wiggins v. Smith, 539 U.S. 510, 534-
there is no basis for not extending this reasoning to a First Degree Felony. This
necessary logic was followed in Milburn v. State, when the Fourteenth Court of
Appeals of Texas found that the failure to present twenty witnesses who would have
testified that the defendant was a good father to a child with special needs and was
v. State, 15 S.W.3d 267, 271 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).
20
Appellant asks this Court to look at Milburn v. State for comparison to the facts
(Tex. App., 2018)(citing to Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref'd)). In Milburn, counsel for the defendant did
not provide any mitigating evidence during the sentencing stage, nor did counsel
investigate any witnesses on behalf of the defendant. Id. The result of the lack of
mitigating evidence was a sentence that exceeded what the State asked for at trial.
Id. The defendant presented evidence consisting of affidavits from twenty witnesses
willing to testify on defendant's behalf. Id. The Milburn Court concluded this was
enough evidence to prove the defendant was prejudiced during the punishment
Here, at the hearing on the Motion for New Trial, twelve witnesses voluntarily
hearing although being available at all times. The testimony cannot be said to be
hearing was his mother. See Ex Parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim.
App. 2006). For this reason, Appellant contends that no trial strategy existed to
support the limitations his trial counsel placed on investigating and presenting
21
mitigation evidence at his sentencing hearing. The absent investigation of
mitigation evidence along with the late e-filing of the Memorandum in Mitigation
of Punishment is the delinquent performance that meets the first prong under
Strickland.
Under the second prong of Strickland, Appellant contends that his trial
punishment phase of his trial resulted in prejudice and undermines the confidence
of the judgment of the trial courts sentence. Strickland at 694; See also Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The witness testimony cannot
Motion for a New Trial revealed an outpouring of support from family and friends
the twelve witnesses and their testimony at the hearing on the Motion for New
Trial:
3. Santiago Jimmy Ybarra—Mr. Ybarra has known Appellant for more than
20 years. RR NT Vol. 2 P. 33. During his career, Mr. Ybarra worked as a
juvenile detention officer and for adult probation department for a total of
about 12 years, collectively, before retiring. RR NT Vol. 2 P. 34. He
described Appellant as a “family man” who was “always seen with his
kids.” RR NT Vol. 2 P. 33. Mr. Ybarra was not asked to testify but if he were
asked to testify he would have and would have recommended probation. RR
NT Vol. 2 P.34-35.
The evidence presented at the hearing on the Motion for New Trial
performance of trial counsel, a different result would have occurred. For these
abused his discretion in not evaluating trial counsel’s deficient performance in light
of the voluntarily testimony of twelve friends and family members at the hearing
on the Motion for New Trial. By neglecting the weight of the testimonial character
State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Therefore, Appellant’s
counsel when his attorneys failed to investigate the judge before advising him
punishment.
In his third point of error Appellant contends that failing to investigate Judge
Banales prior to advising the waiver of his right to a jury trial or jury-assessed
25
punishment was an error so serious that counsel was not functioning as the
based on prevailing professional norms, and (2) but for counsel's errors, there is a
reasonable probability the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88, 694. “The right to effective
assistance of counsel "applies to pretrial critical stages that are part of the whole
presumed to make critical decisions without counsel's advice." Id. at 165. When an
proceeding, the correct measure of prejudice under the second prong of Strickland
is “whether there is a reasonable likelihood that the defendant would have opted for
the proceeding if his attorney had performed adequately.” Miller v. State, 548
S.W.3d 497, 502 (Tex. Crim. App., 2018). The Appellant “does not have to
demonstrate a reasonable likelihood that the jury trial he waived would have yielded
a more favorable result than the court trial he had.” Id. Bad advice that causes a
26
assistance of counsel because the waiver of the proceeding is the prejudice. See,
e.g., Lee v. United States, 137 S.Ct. 1958, 1965 (waiver of jury trial); Lafler v.
Cooper, 566 U.S. 156, 165 (rejection of plea agreement); Roe v. Flores-Ortega, 528
U.S. 470, 484 (2000) (waiver of appeal); Hill v. Lockhart, 474 U.S. 52, 59
Here, Appellant had two attorneys in the trial court—Gustavo Elizondo and
Trey Garza. Mr. Elizondo was lead counsel for Appellant. RR. NT Vo. 2 P. 102.
Appellant was Mr. Elizondo’s first client charged with a first-degree felony in
which Mr. Elizondo served as lead defense counsel. RR NT Vol. 2 P. 105. Mr.
capacity being that he has more experience in criminal defense that Mr. Elizondo.
Judge Banales instead of a jury. RR NT Vol. 2 P. 103. Mr. Elizondo explained his
Mr. Garza was one of the attorneys from whom Mr. Elizondo sought advice
instructing Appellant to seek punishment from the judge or jury. Mr. Garza recalls
Now, in this case, when Gus asked me, you know, what do you think,
judge or jury? I remember that phone call. I can actually remember
where I was when I was talking to him on the phone. I was in the
parking lot of our office as soon as I stopped my car so I could talk to
him, and I remember telling Mr. Elizondo, I may be the only lawyer in
Cameron County who would recommend going to Judge Banales on
this case. And I recommended going to Judge Banales on this case.
And I didn't do any legal search. I mean, I am sorry. I didn't do any
internet research on Judge Banales. I went based upon -- I gave Gus
advice based upon my experiences with Judge Banales. Some of those
experiences include representing criminal defendants before him when
he was elected, before he became a visiting Judge and Senior Status.
One case in particular in the Nueces County Courthouse, I recall I had
a defendant who was indigent and couldn't pay money back. And
Judge Banales was lenient to that defendant. I wish I could remember
the name and the case, it's been 15 years now. But I conveyed those --
that history, my personal history of Judge Banales on those cases, I had
another case in Kingsville where he served in Kingsville, where I had
a young man who was smuggling drugs through the checkpoint and it
was a State level case. And Judge Banales had this notoriety for being
hard on drug cases. And in that particular case, the young man was a
college student who was helping himself, who was doing all he could
and had made a mistake. And Judge Banales showed leniency in that
case. So -- and I was aware that many defense lawyers in the Criminal
Bar, they fear Judge Banales's sentencings. And I was aware of that.
The record reflects that the decision instructing Appellant to waive his right
28
1. Judge Banales’ Order setting the bond on count two of the
indictment;
Judge Banales.
At the hearing on the Motion for a New Trial, two practicing attorneys in
Cameron County, Texas believed that seeking punishment from Judge Banales
experienced trial attorneys who, we urge, had the expertise to set a standard for
minimum confidence.
Importantly, Mr. Elizondo and Mr. Garza each individually expressed their
advising Appellant to waive his right to a jury trial and jury-assessed punishment.
Q. All right. Now, there is also a -- and in fairness, if you had never
done a first degree felony before, then you really did not have any
history to make an informed decision on that, isn't that correct?
A. As far as never having handled one from the defense side, yes.
Q. Okay. And then when you take that next step on that, Mr. Escamilla
needs to have -- make an informed decision on waiving that important
right to a jury, correct?
A. That's right.
29
Q. Now, would it be fair to say that with your level of experience that
you had, and I understand you have more now, but at that moment, the
level of experience that you had, it was not adequate for him to make
an informed decision between a judge and a jury at that time.
Q. All right. Thank you. Let's see if we can take the next step. Do you
believe that there is a reasonable probability, but for his lack of
information in choosing between judge and jury, that the proceedings
would have been different?
delinquent performance:
Q. Let me just describe this relationship. You are the 20 year lawyer,
he is relying on you for advice, you are involved as his lawyer in that
capacity, correct?
A. Yes.
scrutiny and therefore the judicial system developed a process that incorporates the
30
rigorous investigation, of members of the community into the trial itself. This
process is called voir dire. The overarching purpose of voir dire is to afford
defendants the ability to investigate the potential fact-finders that will sit in
also afforded the ability to investigate the potential fact-finders ability to assess a
fair sentence upon a finding of guilt. In evaluating whether a defendant has properly
waived his constitutional right to a jury trial, the judicial system relies heavily on
investigation of the judge before advising his client to waive a trial by jury and jury-
waive a jury trial and jury-assessed punishment. For this reasons, Appellant
contends that his trial attorneys’ failure to investigate Judge Banales prior to
advising him to waive his right to a jury trial and jury-assessed punishment is the
deficient performance.
Some time after Judge Banales pronounced Appellant’s sentence, Mr. Garza
conducted an Internet search of Judge Banales. To his surprise, Mr. Garza explained
31
his finding on how prejudicial waiving a jury trial and jury-assessed punishment
Mr. Elizondo's advice. RR NT Vol. 2 P. 87. Mr. Elizondo relied heavily on his law
partners experience to inform Appellant to waive his right to a jury trial and jury-
assessed punishment. Mr. Elizondo's advice was deficient because of his failure to
sentencing. But for his attorney's bad advice, he would not have waived his right to
In Miller, Defendant waived his right to a jury trial based on his attorney's
inaccurate advice that defendant would still be eligible for probation after
conviction for a 3g (now 42A.054) offense. Miller v. State, 548 S.W.3d 497, 498
(Tex. Crim. App. 2018). In Lee, the Defendant waived his right to a jury trial on the
inaccurate advice of his attorney assuring him that he would not be deported if he
pleaded guilty. Lee v. United States, 137 S.Ct. 1958, 1962 (2017). In Flores-Ortega,
the defendant waived his right to appeal on the bad advice of his attorney. Roe v.
Flores-Ortega, 5=28 U.S. 470, 484 (2000). In Hill, defendant's attorney misadvised
the defendant as to his parole eligibility. Hill v. Lockhart, 474 U.S. 52, 56 (1985).
In Lafler , 566 U.S. at 165 the defendant rejected a plea agreement on his attorney's
bad advice. Lafler v. Cooper, 566 U.S. 156, 163 (2012). In each case, the bad advice
33
prejudiced defendant because the deficient performance caused the defendant to
waive a judicial proceeding that he was otherwise entitled to have." Miller v. State,
548 S.W.3d 497, 499 (Tex. Crim. App. 2018). The deficient performance by the
Appellant's trial counsel in Mr. Escamilla’s case is ineffective in the same way. The
would have opted for a jury trial or jury-assessed punishment had it not been for the
deficient performance. Therefore, Mr. Escamilla’s decision to waive a jury trial and
At the hearing on Appellant’s Motion for New Trial, the trial judge abused
his discretion by not applying the ineffective assistance of counsel standards set
forth in Hill v. Lockhart. Evidence in the hearing established that Appellant’s trial
counsel did not properly investigate Judge Banales before instructing Mr. Escamilla
to waive his right to a jury trial and jury-assessed punishment. Judge Banales based
his decision to deny Appellant a new trial on the two-prong Strickland standard.
RR. NT Vol. 2 P. 151. The Appellant “does not have to demonstrate a reasonable
likelihood that the jury trial he waived would have yielded a more favorable result
than the court trial he had.” Miller v. State, 548 S.W.3d 497, 502 (Tex. Crim. App.,
2018). The critical distinction between the prejudice prong in Strickland and
34
before waiving his right to a jury trial and jury-assessed punishment. The trial judge
did not entertain the distinction and therefore he abused his discretion in denying
Appellant’s request for a new trial. The trial should have used the Lockhart
standard when assessing prejudice, rather than the second prong of Strickland. This
was a discretionary decision of application of facts: the trial judge applied the
wrong law.
PRAYER
Appellant prays that error be found on the points of error and the Court
acknowledges the harm done. He prays for reversal of the pronounced sentence and
a new trial.
Respectfully submitted,
/ s/___Ed Stapleton___________________
ED STAPLETON
Texas State Bar Number 19058400
2401 Wildflower Dr. Ste. C
Brownsville, Texas 78526
Telephone: (956) 504-0882
Fax: (956) 504-0814
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CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements
no smaller than 14-point for text and 12-point for footnotes. This document does
comply with the word-count limitations of Tex. R. App. P. 9.4(i) because it contains
/s/__Ed Stapleton_________________
Ed Stapleton
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s Brief
has been electronically transmitted to District Attorney Luis Saenz via e-mail:
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