status can you turn the volume up just a little bit counsel failed to object to the state's line of questioning of a witness mr vireo in this case the sharia answered his questions regarding the defend its immigration status and we know as evidence by the jury's note to the court they heard this information they understood it they remembered it and they considered this court should rule for mr sanchez for two reasons st the jury note is dispositive it is horror concrete evidence that an insight into the jury's mind set that we don't normally have that they considered this information the thought about it they discussed it among themselves and that it affected their decision nd regarding error no reasonable competent attorney would base any strategy on allowing his client to introduce something as prejudicial and inflammatory as his immigration status and even if that decision had been made no reasonable competent attorney no or no reasonable competent attorney would allow the state to introduce that evidence st and state he'd be a score system determined jump to prejudice and it would be hard to see how a single reference not brought up again in closing could affect guilt an innocence are you primarily focusing on the punishment side or do you think you just described as to both we are primarily focusing on punishment we recognize obviously that there is evidence of mr san but and that the jury no came in with the jury asked the court about his immigration status during the sentencing phase but we would contend that other facts on the record tend to show that this permeated the trial especially the fact that this came in at guilt or innocence which happened on that initial phase of the trial happened on april th and that sentencing happened difficulties libby on the punishment not as familiar with the texas criminal system but it it's this b guilt right into punishment system and then we have you'll know the article that specifically deals with four or four b and it looks to me like it would allow a criminal history relating to the legal presen reactionary and then sure enough we've got a texas case that infante decision saying it does come in appropriately so so there would be no error at all as to punishment no your honor that's not my understand that's beyond reasonable doubt that some sort of bad act had occurred here remaining in the country illegally is not a crime under arizona the united states instead of entering being either legally present is a crime and may be a misdemeanor but it's a well i may be wrong i thought it was a neuron or a i do not believe it is actually a bullet entry and reentry is a crime but simply being here illegally is not a crime as i under arizona the united states as a result we don't know evidence was introduced on the record as to how mr sanchez got here under what circumstances he got here and therefore this information would still be  inadmissible even if it were introduced at the sad scene admissible in a different theory than you've been pressing throughout right that's aboard jalili claim that you didn't have enough evidence to introduce the other act right it isn't that this is not a legitimate at all information still has to be relevant as i do not believe the forte refutes the fact that the court may still consider the prejudicial versus probative nature of that information and that under that standard it still has to be admissible and here there is no probative value considering the nature of the case and the so what's the maximum penalty your client ninety nine as i said the jury note gives us an unusual unique insight into the mind of the jury it speaks not only to what their deliberations war but also their willingness to consider this information and the fact that they remembered it over two days later here we know they hurt it the question was undeniable mr mr barrio responded yes mr sanchez is here without papers they understood what that meant then or stood that he came into this country from he was from honduras he came into this country illegally and and as a result  as a result they considered this information during his deliberations during their deliberations they remembered it as i said two days later and we know from the jury note that the way that they phrased the question the way that they thought about it we know they considered this issue and that as it was that they considered it but the question is just will you get deported after he gets released that could suggest they're thinking let's give him a short sentence because he's going home we don't we there's a seventy year sentence if anything i mean sure they could have given him a five year sentence and maybe they would have if but you've got to show that the state courts were unreasonable in their determination there isn't a stric violation and so we've got texas law saying that illegal status is relevant at sentencing and you've got a jury note that does show they're focusing on it you're right all the way from the guilt  i just hard to infer that that's necessarily prejudicial that's your argument right yes as i said your honor once again it's it's prejudice when when they've considered this and error that it was introduced because as i've said although what is the attorney's affidavit said he didn't want to object because he knew is going to try to cross examine the cousins who are also from the want to give the implication that they're trying to cut a deal with the government or no he didn't object because he didn't object because he had he stated that he intended for mr sanchez to testify a trial and that as a result he was going to sanchez offer this evidence on his own to bolster his credibility with the jury they the state offered an explanation that well more perhaps he would try to introduce this evidence once again here the evidence of prejudice is clear and that it calls into question what that the jury the facts the jury decide this case on ca question the facts the jury decided the sentence on i have no confidence that the jury will hear mr sanchez has to show reasonable possibility that the sentence or the or the verdict would have different the outcome would have been different here a reasonable possibility is something sufficient to undermine our confidence in the outcome as i said i have no confidence in south com and i don't understand how given the presence of the jury and given these unusual circumstances any reasonable jurors could to my nd point there are no reasonable competent attorney would have any strategy on allowing this information i strategy was to introduce this when their client was going to testify it goes against proven trial strategy you allow the state to introduce this on their terms you allow them to frame the issue  and you then have to bring it up later it still makes it look as though mr sanchez was trying to hide something by failing to object it makes it it implies it and the cousin that was on the stand on direct it up who said we're all from honduras we played there together she wasn't the witness at the sentencing correct there was only one witness at the punishment phase right a only you're correct it wasn't the same woman was it now and then that the punishment phase there's no reference to it no there is no i couldn't i don't i don't remember the record well enough was their closing argument is that how texas works you then get closing argument at the punishment phase again correct ok and it was there any reference by the government to this illegal status that i know but once again the jury no negates whether there was additional reference would go towards error i mean my point is simply we measure each error as they occur sure the cumulative effect of error may be infirmed maybe implied that to find a case of prejudice but here we don't need to do that because pressure the jury know kind of resolve some of those issues on prejudice we have a lot more information than we would under your normal case especially when the jury is now speaks directly to the alleged  going back to my point on error it makes no sense to allow the state to introduce introduce this because it signals to the jury that this is relevant information that they should consider and we know that they did in fact consider it but beyond that there is no wisdom there is no strategy in allowing in allowing your client to testify about his immigration status given the wealth of knowledge that states from from numerous courts in texas and  and across the country that says that this is an inflammatory issue that it's so prejudicial that even a single mention might not be of on unring the bell that the that actually the best solution be to move it would have already been introduced so i'm uncertain how this circumstance described would have happened based on what we know that mr subpoena said and saturday last once again this jury's jury's note as well that that actually might have solved the problem they didn't know how to consider this they were thinking about how to consider it and if they had been told no we can't consider it you can't consider it don't think about it think about you know just the facts of this case that it felt good to kill someone that's what the evidence during trial showed during the trial there was one mention of the fact that sanchez is an illegal immigrant and his attorney decided not to object to that one mention st reasons the state court found that this was a reasonable trial strategy and that in any event it resulted in no prejudice to sanchez the question in this case is not whether that determination was incorrect its whether it was unreasonable or so wrong that there's no room for fair minded disagreement sanchez cannot meet that standard so the court should affirm turning to the st prong of the stricken test deficient performance this court engages in a doubly deferential review of trial counsel's performance under strickland review of truck ounces performance is itself deferential and the point is not to nd guess trial counsel strategy importantly this is not a case where trial counsel mistakenly thought he could object he thought he could have but chose not to for strategic reasons and a conscious and informed decision on trial strategy cannot be the basis for an i t c claim and less that so ill chosen that it permeate permeates the entire trial with obvious unfairness that something that sanchez cannot show here even if that testimony were inadmissible that does not mean that it's per se ineffective assistance to choose not to object that seems to be what mr sanchez is arguing here if we divide this up into parchment right now you're talking about guilt innocence you're on the st prong deficiency yes as to that it is a single reference that doesn't come up again but am i right that the texas direct appeal court was very very critical of the introduction of this evidence remember they said it's forfeited but they said we do not can tone in any way the state's decision to introduce sanchez's illegal status during the guilt innocen phase that's correct your honor so that sounds to me like even texas the court system is acknowledging this was improper at the guilt innocence phase yes your honor i think that's an accurate representation of the  comment on that i believe it was in a footnote ok and so then the argument is it was improper to not object it was attorney deficiency unless there's a strategic reason yes you're on it ok and he only gave one reason he didn't give the reason that seems quite compelling that you put in the brief that oh well i've got to watch out for the cousins his reason was i thought he was going to testify so i wanted him to take things i write he did say that in his affidavit he did mention the fact that his overall strategy was to impeach the cousin's testimony which is it's not as compelling as the reason you gave i can i really understood your reason but i don't didn't understand his reason but you think either survive strickland deferential review yes your honor and under richter the court if this is an objective inquiry the court can look at the trial record and it doesn't matter that he didn't say that specifically in his affidavit and it's obvious from reading the trial transcript that that's what he was trying to do i mean he didn't really have much else to go on that was his only hope to i mean to try to discredit this very compelling testimony and so that's what he did he focused his closing argument on that so even if he didn't explain that  in his affidavit as fully it's obvious from the trial transcript that that's what he was trying to do and the court also again and director the court should be looking at all the possible reasons that he had to do what he did it's not limited to just  affidavit and again like i like you mentioned that as a very compelling reason as to why he chose not to especially you consider the context of the statement but then joe i mean i'm just just jumped in the punishment of that that argument doesn't exist then why  world wouldn't he want to have the jury told you can't consider this that he's honduran and give him seventy years because he's not even american i believe that the claim that's being made on hay vs your honor is whether or not it was an effective assistance for him to have not objected during that to that one mention i don't believe that his petition could be construed as making a challenge to the fact that he didn't ask for jury instruction or limiting instruction but  instance than the government says all the evidence from guilt innocence is relevant to punishment right and he doesn't object at that point i guess not but that's not an argument that has ever been made by their argument is we know the jury was all focused on his own derned status because they asked a question about it so they clearly i mean i really thought they were making a strickland argument as to punishment that's the more compelling argument probably  i mean if you'd like to talk about punishment we can we can switch there and you know the focus of his argument that mr sanchez's argument is on this jury note but the jury note is really a red herring here because as your honour's pointed out during my friend's argument it doesn't it shows that most that the jury was considering the information it was considering what would what would happen if this person was released to the street they do focus on this one during they mention the fact that he would be going back to honduras so it most shows that they were considering what the effect would be if he was released that's not the same thing as evidence of prejudice and as your honour's pointed out it's very reasonable to assume that if they thought that he would be deported when he was released that could have led them to give him a shorter sentence they didn't have that information because the judge didn't answer the question so what they did was they gave him the sentence that they probably would have given somebody who did for deportation was not a consideration they gave him a long sentence and you can't show prejudice with that jury now because the sentence that the jury gave was one hundred percent in line with the evidence that was presented during the trial the prosecutor during her closing argument she got up there and she said ok the range is five to ninety nine years start at the middle forty five dollars to fifty dollars then you look at the mitigating evidence which would cause you to go on to the lower end of the range and you look at the aggravating evidence that would cause you to go into the higher end of the range there's no mitigating evidence and there wasn't so then she looked goes through and recounts all of the aggravating evidence the fact that mr sanchez affirmatively chase this man seventy five yards across a parking lot the unarmed man and stabs him in the heart then says he enjoyed it afterward those are very aggravating aggravating facts and the fact that and so she she also urged them to because of that to go into the higher end of the range she also urged them to consider the effect that the crime had on the victim's family it's obvious that the jury was concerned about and excuse me she also mentioned you know that they should think about what happens if this person is released on the street when deciding whether to go into the high end of the range or not and the juries would it texas prosecutor be able to say to the jury you heard he's illegally here and that's  reason you can punish him more is that a try to figure out what texas law busy is on that i'm not sure if there is any settled law on that point how do you have time for thirty this article thirty seven so article thirty seven allows the introduction of other out extraneous offenses during the punishment phase so i believe that there are some standards that you have to meet in order to be able to introduce that evidence so if those standards were met and the witnesses already said he's he's he's illegally here would texas would you be able to argue this is an aggravator he's an illegal alien that's part of his background i just was curious that's what i thought infante said it it seems to suggest that your debating here as to what the texas courts would consider shows that he can't meet the standard under under the state courts determination here in this case was unreasonable and th going back to my point about what the jury was thinking here in the jury no the point is that the jury was obviously considering what the effect would be if he was released they had to st know where they asked how old he was the nd note where they asked about deportation and then the rd no where they asked about whether the fine would go to the victim's family that's completely in line with what the way that the prosecutor argued in her closing and how they should assess punishment so what that shows that plus the extreme average aggravating evidence in this case shows that what the jury did was completely in line with what you would expect them to do there's no evidence that the brief introduction of the legal status of the defendant had any impact whatsoever on the harshness of the sentence that he was given unless there's any further questions on that point zero all wrapped up mr sanchez cannot show prejudice given the overwhelming evidence and facts of the crime and he can overcome the doubly deferential review required by strict  show that the state courts determination here was unreasonable this court should affirm if there are no further questions on for me to my time but your honor to address some of the state's points state so it's rector for the proposition that courts should consider other alternative reasons for why a trial counsel would have taken certain actions other than what state david richter and walker do stand for a proposition that the court must actively consider what the reasons were supporting any sort of claim strategy but that does not mean that this court should consider reasons given on tother from the facts are unrelated to what counsel or what trial counsel said i've direct this court to wiggins smith and this court's richards of the courtroom in where they both say that arguments completely untethered from any sort of logic post hoc rationalization is the court's not required to consider and mr sanchez is arguing that's exactly what mr separators reason was here and the additional organise the statement to address the court's question regarding honduran status yes although they the thrust of that comment was relating to immigration status obviously the core or the jury was aware of his nationality referenced his nationality and mr sanchez as stated in these briefs that  another reason for considering the both the air and prejudice pro the court or the state wants to argue that the evidence is overwhelming here window to get in to see or to get him to get access to mr barrios that it's unclear how a physical altercation began and that there's conflicting testimony on the record under those circumstances certainly a jury could consider these as mitigating factors in determining sentence last regarding article thirty seven dollars the standard is that evidence has to be introduced that proves about it beyond a reasonable doubt in order to use it as i said during my opening that that did not happen here there is no evidence on the record regarding how mr sanchez got here regarding any other circumstances there's only a single reference by mr baria to the fact that he was here illegally and as a result this would not be admissible during sentencing to to wrap up once again this is such an unusual circumstance it's such a rare case to have a jury know that it speaks to the alleged hair that's exactly what we have here that if you can't show prejudice under these circumstances with this sort of direct evidence then virtually nothing is sufficient to prove prejudice and last no reasonable competent attorney would allow this evidence in and would allow the state to introduce it there's there's no strategy behind