CAUSE NO. 03-14-00288-CR

*********************************** IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

*********************************** 

### Ex parte BRIAN STANLEY GRANADOS, Appellant V. STATE OF TEXAS, Appellee

********************************** 

### Appeal From the 22ndJudicial District Court Cause No. CR-11-0311-A Hays County, Texas

********************************** STATE'S BRIEF

*********************************** Angie D. Roberts-Huckaby Asst. Criminal District Attorney Hays County Justice Center 

### 712 South Stagecoach TraO, Ste. 2057 San Marcos, Texas, 78666 512-393-7600 

### Angie.roberts@co.hays.tx.us State Bar No. 24081797 Attorney for the State ofTexas Oral Argument Not Requested ACCEPTED 03-14-00288-CR 3617278 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/30/2014 2:18:31 PM JEFFREY D. KYLE

CLERK

### Appellant: Attorneys for the State:

At trial:


### On appeal: Attorneys for Appellant:
At trial:



### On appeal:

Trial Judge NAMES OF PARTIES 

### Brian Stanley Granados Sherri K. Tibbe, Criminal District Attorney 

### Hays County Government Center 

### 712 South Stagecoach Trail, Ste. 2057 San Marcos, Texas 78666 John Couch, ADA 

### Angie D. Roberts-Huckaby, ADA

Leonard Martinez 812 San Antonio, Suite 104 Austin, Texas 78701

Leonard Martinez 812 San Antonio, Suite 104 Austin, Texas 78701

Hon. Jack RobisonTABLE OF CONTENTS

NAMES OF PARTIES i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES iii
ISSUES PRESENTED 1
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 3 

### L To prevail on apost-conviction writ ofhabeas corpus, the applicantbears the burden ofproofthat the facts entitle him to reliefand the trial court, as the 

### fact-fmder, is the exclusivejudge ofwitness credibility 3
CONCLUSION & PRAYER 6
CERTIFICATE OF SERVICE 7
CERTIFICATE OF COMPLIANCE 7
APPENDIX A : 8

nTABLE OF AUTHORITIES

Federal Cases 

### Stricklandv. Washington, 466 U.S. 668 (1984) 7
State Cases 

### State V. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013) 7
State Statutes 

### Tex. R. Civ. P. 1.02 (a)(3) 9

111ISSUES PRESENTED 

### To prevail on apost-conviction writ ofhabeas corpus, the applicantbears the burden ofproofthat the facts entitle him to relief; the trial court, as the fact-finder, is the exclusivejudge ofwitness credibility. Here, Granados himselfgave the sole 

### testimony supporting his claim of ineffective assistance of counsel and failed to call trial counsel to testify. Did the trial court abuse its discretion by denying the post-conviction writ ofhabeas corpus when the trial court is the exclusivejudge of credibility?

STATEMENT OF THE CASE 

### Brian Stanley Granados ("Granados") was indicted for the offense of 

### Possession ofMarijuana-fifty pounds or less but more than five pounds, a third 

## degree felony, on April 14, 2011.^ Granados signed apleabargain agreement that probated two years of confinement in TDCJ to five years of community supervision, a fine and fees, treatment and counseling, and 200 hours of



### ^(CR4).

## community servicerestitution.^ On September29, 2011, Granados waivedhis right 

## to appeal as part ofthe plea bargain agreement.^ Granados was convicted and sentenced to the terms set forth inthe plea bargain agreement."^ On October 11, 2012, the State filed a Motion to Revoke Community Supervision and Impose 

### Sentence against Granados for violating the terms and conditions ofhis community 

## supervision.^ Granados filed for Writ ofHabeas Corpus on January 7, 2014 and the State 

## responded on March 11, 2014.^ The court recommended denying the writ on March 13, 2014.^ On April 23, 2014, Granados filed a Notice ofAppeal.^ The Texas Court of Appeals, Third District, at Austin handed down an order and 

## memorandum opinion regarding Granados's appeal and the appeal was abated.^ The State filed Proposed Findings ofFact and Conclusions ofLaw, which the trial court adopted on May 27, 2014, denying the application for Writ of Habeas Corpus.



### ^(CR5). ^(CR 12). 

### "^(CR 13-14). ^(CR 15-17). 

### ^(CR 18-27). ^(CR39). 

### ^(CR43). ^(CR49-50). (CR 59-63).STATEMENT OF FACTS 

### During the period of said community supervision, Granados violated the terms and conditions of his community supervision by testing positive for 

### marijuana twice, failing to report to his supervision officer twice, and failing to 

## complete other terms and conditions.^^ The State filed a Motion to Revoke Community Supervision and Impose Sentence as a result ofthe failed terms and 

### conditions/^ Granados filed aWrit ofHabeas Corpus, alleging that his plea was not entered knowingly, intelligently, and voluntarily as a result ofthe ineffective assistance ofcounsel/^

I. To prevail on a post-conviction writ of habeas corpus, the applicant bears the burden ofproofthat the facts entitle him to reliefand the trial 

### court, as the fact-finder, is the exclusivejudge ofwitness credibility. 

### Granados attacks the validity ofhis prior guilty plea as reflected in the written 

### judgment claiming ineffective assistance of counsel;'"^ however, he cannot
overcome the presumption that the plea recitals written in the judgment are
(CR 15-17). (CR 15-17). (CR18). 

### ''^Granados did not overcomethe strong presumptionthat, "trial counsel's actions fell within [a] wide range ofreasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). He simply did not show sufficient evidence that trial counsel's performance was defective. He did not prove the two-step Stricklandtest. The test requires a two-step analysis: 1) Did the attorney's representation fall below an objective standard of reasonableness under prevailing professional norms? 2) Ifso, is there a reasonable probability that, but for counsel's unprofessional errors, the result would havebeen different? 3

## correct.'^ Written recitals "are binding in the absence of direct proof of their falsity."'' In an Article 11.072 habeas proceeding, the trial judge is the sole finder of 

### fact.'^ Appellate courts afford almost total deference to a trial court's factual findings when supported by the record, especially when those findings are based 

## uponcredibilityand demeanor.'^ At the writ hearing, the only witness called was Granados. The only evidence 

### presented supporting his allegation was his own testimony. Trial counsel's 

### affidavit discredits his allegations.'^ Trial counsel had lengthy and extensive 

## conversations with Granados regarding the case.'^ The court has the discretion to believe or disbelieve Granados's testimony; therefore, it was within the court's discretion to not believe his testimony and base its ruling that trial counsel was not 

### ineffective on the affidavit submittedbytrial counsel. Granados also complains that trial counsel did not; conduct a proper and independent investigation, challenge the evidence in the case, or provide 

### meaningful plea negotiations based on the lack ofevidence supporting Granados's

State V. Guerrero, 400 S.W.3d 576, 583-84 (Tex. Crim. App. 2013). Id. Id. (CR 32-34). (CR 32-34).

### guilt. It is true; trial counsel does have an obligation to conduct an investigation, or to make a reasonable decision that makes the particular investigations

on 

### unnecessary. Here, Granados did not offer trial counsel "any innocent 

### explanation for where the money or money bag came from, nor did he ever suggest that there was a legitimate reason for him to have the money or the money bag 

### with him." Rather, he explained to trial counsel that additional felony charges filed against Granados in Travis County had a major influence on his decision to enter into a plea agreement, even after lengthy conversations and informing him of 

### his rights. Therefore, trial counsel was obligated to abide by Granados's decision to enter


### a plea, after reviewing discovery and advising him on the case. Moreover, trial 

### counsel's strategic choices, ifmade after a less than complete investigation ofthe law and facts are reasonable on a claim of ineffective assistance because 

### reasonable professional judgments support limitations on the investigation due to

Strickland. 466 U.S. at 691. 33); See Hays County Narcotic's TaskForce Report of Investigation, Appendix A. Interestingly, Granados claims that a serious mistake in the trial counsel's affidavit was to say that Granados was in possession ofa money bag and that scales were in plain view; however, both assertions are clearly in the police report, which is not part ofthe appellate record. The money is reported as /being in a "moneybag" in his pocket and the scales are reported as clearly in plain view in the police report. (CR 33). 

### ^^Tex. R. Civ. P. 1.02 (a)(3) (stating that "alawyer shall abide by aclient's decisions
... [i]n a criminal case, after consultation with the lawyer, as to a plea to be entered, whetherto waivejury trial, and clientwill whetherthe testify."). 5

## Granados's choice to enter into the plea bargain.^"^ The trial court's ruling should
be affirmed.

CONCLUSION & PRAYER 

### Wherefore, premises considered, the State respectfully prays that the Court 

### overrule Appellant's issues, AFFIRM the trial court, and grant the State all reliefto which it isjustly entitled.

24 Strickland, 466 U.S. at 690-91. 

### Respectfully submitted Angie D. Roberts-Huckaby Asst. Criminal District Attorney State Bar No. 24081797 

### Hays County Government Center 712 South Stagecoach Trail 

### Angie.roberts@co.hays.tx.us San Marcos, Texas, 78666 

### Telephone: 512-393-7600 Facsimile: 512-393-2246 Counsel for the State ofTexasCERTIFICATE OF SERVICE 

### I hereby certify that a true and correct copy of the foregoing instrument has been served on by e-mail to Leonard Martinez atMartinez.leonard@sbcglobal.net in accordance with Rule 9.2 & 9.5 ofthe Texas Rules on Appellate Procedure, on 

### this 30'^ day ofDecember, 2014.

Angie D. Roberts-Huckaby

CERTIFICATE OF COMPLIANCE 

### I hereby certify, pursuant to Rule 9.4 (i) (2) (B) and rule 9.4 (i) (3) ofthe 

### Texas Rules of Appellate Procedure that the instant briefis computer-generated using Microsoft Word for Mac and said computerprogram has identified that there
are no more than 1,581 words within the portions of this brief required to be 

### counted by Rule 9.4 (i) (1) & (2) ofthe Texas Rules ofAppellate Procedure.

Angie D. Roberts-Huckaby

7

### Appendix A

# HAYS COUpixY NARCOTICS IaSKFORCE REPORT OF INVESTIGATION BY: Det. Ronnie Verette File Number: TFll-034-1 Case Title: 

### Date Prepared: 03-03-11 113 Crest Hill Causeway 

### Related Files (Agency): Kyle, TX, 78640 

### Other Officers: Sgt. Bartsch, Det. Cormier, Det. Mallow, Det. Taylor


### Report Regarding: Search Warrant Executed 02-22-11,113 Crest Hill Causeway, Kyle

SYNOPSIS; On 02-22-11, members ofthe Hays County Narcotics TaskForce executed a court authorized search and arrest warrant at 113 Crest Hill Causeway, Kyle, Hays County, TX. The investigation began with an anonymous tip ofbundles ofmarihuanabeing unloaded into the residence, and ended withthe execution ofa search warrant and the seizure ofapproximately 15.3 pounds ofmarihuana. 5 persons in the residence were arrested, charged 

### withPossession ofMarihuanaover51bs a3"^*^degree felony.
DETAILS: On 02-22-2011 Detective Verette, via Sgt. Bartsch, received an anonymous tip from a concerned citizen who advised that bundles ofmarihuana were being unloaded at a house in the green pastures neighborhood. The concerned citizen, herein referred to as CC wished to remain anonymous for reasons ofpersonal safety. CC advised thathe / she had observed large bags ofmarihuanabeing carried into the home. Detective Verette along with other members ofthe Hays County Narcotics Task Force traveled to the location provided by CC. CC had described the suspect location and vehicles in the driveway. Detective Verette notes that the description ofthe home and the vehicles described by CC, matched personal observations ofDetective Verette and other members ofHCNTF. Detective Verette along with Jayson Cormier knocked at the front door ofthe home. Detective Verette was advised by Detective Jayson Cormier, a member ofthe HCNTF and San Marcos Police Detective that the odor of fresh marihuana was detectable before the front door was opened. Bertin Castillo opened the door and stepped out onto the front porch leaving the door open. Detective Verette observed the front ofCastillo's shirt to be covered in small pieces ofmarihuana. Detective Verette identified himselfby displaying his Sheriffs Office issued badge and announcing his name and title as detective. Castillo attempted to re-enter the front door and close the door behind him. Detective Cormier and Detective Verette stepped forward, blocked the door, and directed Castillo to stop so they could place him under arrest, but Castillo continued. Both Detective Cormier and Detective Verette entered the living 

### Detective Signature: K ^Date: O ~ O \ 

## Approving Signature: //La fci- u Date: ^^

## (" <" " HAYS COUNTY NARCOTICS TASK FORCE REPORT OF INVESTIGATION BY: Det. Ronnie Verette Page 2


### room to apprehend Castillo. If notimmediately apprehended, Detective Verette believed thatCastillo would escape and destroy evidence. Detective Verette entered the living room, apprehended Castillo and observed a large black trash bag lying on the floor. The bag was half open and large bundles of marihuana were visible in plain view. Detective Verette called out for other persons in the hometo come to the livingroom. Two persons were located on the couchin the living room and two otherswere inside of a laundry room on the left side of the home in closeproximity to othermarihuana in plain view. Detective Verette determined that Bertin Castillo was the home owner. Verette asked Castillo for consent to search the home. Castillo advised "whatever, do what you are going to do". Castillo would not give a straight yes or no answer. Detective Verette determined consentwas not beinggiven. DetectiveVeretteobservedthe marihuanain plain view and left the scene to submit an affidavitfor search and arrest warrant to Judge Robert Updegrove CCL-1. Detective Verette submittedthe affidavit to Judge Updegrove, and received a search and arrestwarrant at approximately 1528hours. Verette telephoned Sgt. Bartsch, who was still on scene, to advise that a warranthad been issued. Bertin Castillo 08-29-92, Emilio Gomez 11-30-89, Brian Granadoa 08-27-89, Laurentina Garcia 02-21-91, and Esmeralda Vallejo 09-01-92, were arrested and transported to the Hays County Jail, charged with possession ofmarihuana over 51bs. The marihuanathat was in plainview was located in a large blacktrash bag lying halfopen on the floor betweenthe living room and dining room. This bag had a total of3Lbs ofmarihuana in one poundbags. A second large trashbag was lying unopened on the floor next to it, and when searchedhis bag contained two large bundles ofcompressed marihuana wrapped in plastic. Each bundle weighed 5Lbs for a total oflOLbs in the second bag. Also in plain view were two digital scales with marihuana residue on top. They were located on a small table in the dining room. One ounce ofmarihuana was in plain view in the laundry room where Granados and Gomez were hiding when Detective Verette calledthem out to the living room. After the search warrant was signed, an additional 2.27 pounds ofmarihuana were seized from the cabinets in the dining room. A third digital scale was also located in the cabinets ofthe dining room. $800.00 ofU.S. 

### Currencvwasseizedfromtherearpocketof BrianGranados. He hadthemoney inside of amoneybag. The 

### rtl^oej^as seizedforforfeitraB"as drugproceeHs! Photographs were taken ofthe residence and the evidence as it was located, by Detective Laray Taylor. Detective Verette gathered the evidence and transported it back to the San Marcos Police Dept. for processing. It was placed into a safe in the narcotics offices until being weighed and logged into evidence. On 03-02-11, Detective Verette submitted an affidavit for seizure to David Mendoza ofthe Hays County DistrictAttorney's Office. David Mendozatook possession ofthe $800.00 U. S. Currency. A copy ofthe affidavit is submitted withthis report. SUSPECT(S^: Castillo, Bertin Yoshio W/M 08-29-92

## HAYS COUNTY NARCOTICS TASK FORCE REPORT OF INVESTIGATION BY: Det. Ronnie Verette Page 3
636-23-8766 508-135 Blk-Bro Gomez, Emilo W/M 11-30-89 TX-07182223 510-200 Blk-Bro Granados, Brian Granadoa, Brian W/M 08-27-89 TX-62684691 630-09-1882 510-180 Blk-Bro Garcia, Laurentina W/F 01-21-91 TX-28724453 503-120 Blk-Bro Vallejo, Esmeralda Yaneli W/F 09-01-92 501-115 Blk-Bro DESCIPTION AND CUSTODY OF EVIDENCE; Item# Description ofItem Location Item Found #1 black plastic bag w 2 bundles of marihuanalOLbs living room / dining room #2 black plastic bag w 3 bags ofmarihuana 3Lbs dining room #3 2 digital scales w marihuanaresidue 

### diningroomonsmalltable ^ #4 .4grams marihuana in sandwichbag dining room on top ofdigital scale #5 3 bags ofmarihuana 243grams dining room inside top cabinet #6 1 bag ofmarihuana 333 grams dining room inside top cabinet #7 1 bag marihuana 110 grams dining room inside bottom cabinet #8 1 bag marihuana 335 grams dining room bottom cabinet in plastic tub and zip loc bag #9 $800.00 U.S. Currency money bag in rear pocket Brian Granados #10 digital scale dining roomtable bottom cabinet #11 marihuana 28 grams laundry room on top shelf #12 afflink Emma Ramos dining roombar #13 afflink Bertin Castillo BR#1 floor

# HAYS COUNTY NARCOTICS i ASK FORCE REPORT OF INVESTIGATION BY: Det. Ronnie Verette Page 4 #14 afflink Bertin Yoshio Castillo Nakamura BR#1 closet shelf