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No. 13-14-00441-CR

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI – EDINBURG, TEXAS

RENE FRANCISCO AGUILERA,

Appellant

v.

STATE OF TEXAS

Appellee

ON APPEAL FROM THE 206TH DISTRICT COURT

OF HIDALGO COUNTY, TEXAS

CAUSE NO. CR-1836-00-D(1)

APPELLANT’S REPLY BRIEF

Carlos Moctezuma Garcia

Texas Bar No. 24065265

Email: cgarcia@garciagarcialaw.com

Garcia & Garcia

Attorneys at Law, P.L.L.C.

4905-A N. McColl

McAllen, TX 78504

Tel: (956) 630-3889

Fax: (956) 630-3899

Attorney for Appellant

ORAL ARGUMENT REQUESTED

ACCEPTED

13-14-00441-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

5/15/2015 3:54:58 PM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 5/15/2015 3:54:58 PM DORIAN E. RAMIREZ Clerk
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LIST OF PARTIES

Appellant

Rene Francisco Aguilera

Appellee

The State of Texas

Appellant’s Counsel at Trial

Carlos Moctezuma Garcia 

SBOT: 24065265

Garcia & Garcia

Attorneys at Law, P.L.L.C.

4905-A N. McColl

McAllen, Texas 78504

State’s Attorney at Trial

Mr. Rene Guerra

District Attorney

SBOT: 08578200

Mr. Michael Morris

Assistant District Attorney

SBOT: 24076880

Hidalgo County District Attorney

100 N. Closner, 3rd Floor

Edinburg, Texas 78539

Appellant’s Attorney on Appeal

Carlos Moctezuma Garcia 

SBOT: 24065265

Garcia & Garcia

Attorneys at Law, P.L.L.C.

4905-A N. McColl

McAllen, Texas 78504

State’s Attorney on Appeal

Mr. Michael W. Morris

Assistant District Attorney

SBOT: 24076880

Office of Criminal District Attorney

Hidalgo County Courthouse

100 N. Closner

Edinburg, Texas 78539
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TABLE OF CONTENTS

LIST OF PARTIES................................................................................................... 2

TABLE OF CONTENTS ......................................................................................... 3

TABLE OF AUTHORITIES.................................................................................... 4

ARGUMENT............................................................................................................ 6

I. THE APPELLEE’S ARGUMENT THAT THE TRIAL COURT DID NOT 

ABUSE ITS DISCRETION IGNORES THE TRIAL COURT’S STATED 

REASONS FOR DENYING THE WRIT. .......................................................... 6

A. Appellee’s attempt to distinguish the applicable case law based on the 

procedures mandated by the Article 11.07 versus Article 11.072 of the Texas 

Code of Criminal Procedure are not material................................................. 6

B. Appellee’s insistence that the Trial Court is entitled to rely on 

credibility ignores other evidence in the record that point to actual 

innocence........................................................................................................ 7

II. APPELLEE’S ASSERTION THAT A RECANTATION IS NOT NEW 

EVIDENCE HAS NO LEGAL SUPPORT....................................................... 10

III. APPELLEE’S INTERPRETATION OF SCHLUP IS NOT SUPPORTED 

BY THE APPLICABLE CASE LAW. ............................................................. 12

IV. THE CREDIBILITY OF SUSAN MILLER’S TESTIMONY IS NOT 

DISPOSITIVE OF WHETHER APPLICANT RECEIVED HIS 

CONSTITUTIONAL RIGHT TO COMPETENT COUNSEL......................... 13

V. APPELLEE’S CLAIM THAT PETITIONER’S COUNSEL OF RECORD 

WAS NOT REQUIRED TO ADVISE HIM OF THE CONSEQUENCE OF 

HIS PLEA CANNOT SUPPORT THE GREAT WEIGHT OF CONTRARY 

AUTHORITY.................................................................................................... 14

VI. CONCLUSION AND PRAYER................................................................ 16

CERTIFICATE OF SERVICE............................................................................... 18

CERTIFICATE OF COMPLIANCE...................................................................... 18
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TABLE OF AUTHORITIES

Cases

Brady v. State, 771 S.W.2d 734 (Tex. App. 1989)................................................. 11

Damron v. State, 570 S.W.2d. 933 (Tex.Crim.App. 1978) .................................... 11

Drew v. State, 743 S.W.2d 207 (Tex.Crim.App. 1987)...................................... 8, 10

Ex Parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002) .................................... 11

Ex Parte Garcia, 353 S.W.3d 785 (Tex.Crim.App. 2011)................................... 7, 8

Ex Parte Harrington, 310 S.W.3d 452 (Tex.Crim.App. 2010)........................ 13, 15

Ex Parte Jessep, 281 S.W.3d 675 (Tex.App. 2009)................................................. 9

Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) ................................ 14

Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) .................................... 13

Ex parte Navarijo, 433 S.W.3d 558 (Tex.Crim.App. 2014) ................................ 6, 7

Ex parte Reed, 271 S.W.3d 698 (Tex.Crim.App. 2008)....................................... 6, 7

Ex Parte Reedy, 282 S.W.3d 492 (Tex.Crim.App. 2009) ...................................... 15

Ex Parte Sparks, 206 S.W.3d 680 (Tex.Crim.App. 2006) ....................................... 9

Ex parte Spencer, 337 S.W.3d 869 (Tex.Crim.App. 2011).................................... 10

Ex parte Tuley, 109 S.W.3d 388 (Tex.Crim.App. 2002)........................................ 10

Ex parte Welborn, 785 S.W.2d 391 (Tex.Crim.App. 1990)................................... 15

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) ..................................... 7, 8

Herrera v. Collins, 506 U.S. 390 (1993)................................................................ 11

McKittrick v. State, 541 S.W.2d 117 (Tex.Crim.App. 1976) ................................... 7

Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ........... 11, 12
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Self v. State, 709 S.W.2d 662 (Tex.Crim.App. 1986)............................................... 8

Statutes

Tex. Health & Safety Code § 481.121.................................................................... 11

Texas Code of Criminal Procedure Article 11.07 .................................................... 6

Texas Code of Criminal Procedure Article 11.072 .................................................. 6

Rules

Texas Rule Appellate Procedure 38.3 ...................................................................... 6
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TO THE HONORABLE COURT OF APPEALS:

Appellant Rene Francisco Aguilera submits this reply to Appellee’s brief 

pursuant to Tex. R. App. Proc. 38.3.

ARGUMENT

I. THE APPELLEE’S ARGUMENT THAT THE TRIAL COURT 

DID NOT ABUSE ITS DISCRETION IGNORES THE TRIAL 

COURT’S STATED REASONS FOR DENYING THE WRIT.

A. Appellee’s attempt to distinguish the applicable case law 

based on the procedures mandated by the Article 11.07

versus Article 11.072 of the Texas Code of Criminal 

Procedure are not material.

Appellee states without any citation or explanation, that Appellant cited 

cases that are inapplicable to the proceedings based on Art. 11.072 of the Texas 

Code of Criminal Procedure. Appellee Brief1 (“AB”) 2. Assuming that Appellee 

was referring to the cases Appellant cited regarding the standard of review of fact 

determinations, Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App. 2008) and Ex 

parte Navarijo, 433 S.W.3d 558, 567 (Tex.Crim.App. 2014), these allegations are 

without merit. 

 1 For the purposes of citing to the record in this case, the following abbreviations are used. For 

citing to the official transcript: TR (Transcript Record).1 (volume of the record): 1 (page 

number). Thus TR.1: 1, references Volume 1, page 1 of the appeal record. For citations to the 

clerk’s Record: CR (Clerk’s Record) 1 (page number). Thus CR 1, references page 1 of the 

Clerk’s Record.
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While the distinction between cases arising under articles 11.07 and 11.072 

of the Texas Code of Criminal Procedure explained in Ex Parte Garcia, 353 

S.W.3d 785, 787-88 (Tex.Crim.App. 2011) and cited by Appellee is correct, 

Appellant’s does not cite to Ex parte Reed or Ex parte Navarijo for the purposes 

stated by Appellee. Appellant relies on Ex parte Reed and Ex parte Navarijo for 

the proposition that a factual determination that is not supported by the record is 

not entitled to deference. This is not incongruous with the rule set forth in Ex Parte 

Garcia, or Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), nor does it 

contradict the precedent of the Court of Criminal Appeals that permit an appellate 

court to review whether the facts are supported by the record. See McKittrick v. 

State, 541 S.W.2d 117 (Tex.Crim.App. 1976). 

B. Appellee’s insistence that the Trial Court is entitled to rely 

on credibility ignores other evidence in the record that point 

to actual innocence.

Appellee’s main argument in defense of the Trial Court’s decision denying 

Pettioner’s writ is that it was premised on an unassailable credibility determination, 

namely that the Trial Court did not believe Petitioner and Lorena Martinez’s 

recantation. AB 2-4. The Appellee argues that the Trial Court is the fact finder and 

is entitled to make credibility determinations that cannot be refuted upon review. 

Id. 3. 
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At no time, however, does the Appellee consider the stated basis for the 

Trial Court’s credibility determination from the findings of fact and conclusions of 

law, which clearly state the Trial Court’s factual bases and as well as the reasoning 

underlying her conclusions. The Trial Court made the following credibility 

findings: 

• The Trial Court found that Appellant’s testimony regarding his actual 

innocence was not credible, “in the face of the offense report submitted into 

evidence in the underlying case.” CR 140. 

• The Trial Court found that Appellant’s testimony regarding whether Mr. 

Singleterry explained the contents of the plea bargain was not credible in 

light of Appellant’s testimony at his plea hearing “which directly 

contradicts” his claim. CR 140.

• The Trial Court found that Ms. Martinez’s testimony was not credible citing 

Drew v. State, 743 S.W.2d 207, 228 (Tex.Crim.App. 1987). CR 140.

According to the Appellee, under the standard set forth in Guzman v. State and 

adopted by Ex Parte Garcia, a reviewing court has no ability to disturb a Trial 

Court’s factual finding. This is a misstatement of the applicable law. Neither 

precedent cited grants absolute deference to a Trial Court’s holding. Guzman

allows for deference when the credibility determination is supported by the record. 

Guzman, 955 S.W.2d at 89. Whether the underlying record supports a credibility 
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determination is a question for the reviewing court. Self v. State, 709 S.W.2d 662, 

665 (Tex.Crim.App. 1986). Merely couching the findings of fact as a credibility 

determination does not excuse the requirement from Guzman that the record 

support the credibility determination.

Appellant argued in its brief to the Court that the Trial Court’s finding on 

Appellant’s credibility is not supported by the evidence in the record and is not 

entitled to deference. Appellant argues that the record does not support the Trial 

Court’s credibility determinations relying on the Trial Court’s stated bases for its 

determinations. This is not a request for a de novo finding of fact, but rather a 

request for legal review of the sufficiency of the evidence necessary to support a 

finding of fact. See Ex Parte Jessep, 281 S.W.3d 675, 679-80 (Tex.App. 

2009)(finding that while challenges to legal sufficiency of evidence are generally 

not cognizable on an application for a writ of habeas corpus, an exception exists 

for a claim of actual innocence even when the applicant previously pleaded guilty 

and confessed, citing Ex Parte Sparks, 206 S.W.3d 680, 683 (Tex.Crim.App. 

2006)).

Appellant is asking to court to evaluate the Trial Court’s stated basis for its 

finding of fact, and determine whether this is sufficient to uphold its determination. 

Appellant alleges that it is not, because the Trial Court’s reasoning is deeply 

flawed. The Trial Court says that because Appellant earlier confessed to a crime, 
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that his later recantation is invalid because of his original confession. Texas courts 

have rejected this reasoning. The Trial Court argues that Ms. Martinez is not 

credible because she cannot be convicted for recanting her earlier testimony 

undermining her later confession. Texas courts have adopted new standards for 

evaluating confessions that limit the holding of Drew v. State, 743 S.W.2d 207 

(Tex.Crim.App. 1987). See Ex parte Tuley, 109 S.W.3d 388 (Tex.Crim.App.

2002); Ex parte Spencer, 337 S.W.3d 869 (Tex.Crim.App. 2011); Ex parte 

Elizondo, 947 S.W.2d 202 (Tex.Crim.App. 1996). Appellee ignores this precedent, 

and instead requests that the Court utilize the blanket of deference to a credibility 

determination to prevent meaningful review of a fact finding that contained no 

reasoning traditionally associated with credibility determinations, but relies simply 

upon blind adherence to stare decisis to the prior facts.

II. APPELLEE’S ASSERTION THAT A RECANTATION IS NOT 

NEW EVIDENCE HAS NO LEGAL SUPPORT. 

Appellee argues that Appellant produced no new evidence in support of his 

claims of actual innocence, because there was no credible supporting evidence to 

his recanted confession. AB 5. Appellee’s assertion ignores the new evidence 

provided by Appellant’s recantation testimony, together with Ms. Martinez’s 

acceptance of responsibility, which is new evidence that permits an evaluation of 

the evidence of the other evidence in the record in a new light. 
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Viewing the evidence that exists for conviction without a confession, as 

Appellant has urged, demonstrates that without Appellant’s confession and Ms. 

Martinez’s testimony implicating Appellant, the remaining evidence is insufficient 

to uphold a conviction. 

In response, Appellee asserts that Appellant would somehow still been 

guilty of an offense under Tex. Health & Safety Code § 481.121, because 

“[a]ppellant would have had to [sic] been aware that he did not know of the 

marijuana in the bedroom.” AB 5. That is a misstatement of the evidence necessary 

to sustain a conviction under § 481.121, which requires a Defendant to have 

“exercised care, control, and management” over the marijuana. Brady v. State, 771 

S.W.2d 734, 735 (Tex. App. 1989). Appellant could not have been found to have 

exercised care, control, and management over marijuana that was stored in a 

separate room of a house that he did not own, nor did he enjoy exclusive 

possession. Damron v. State, 570 S.W.2d. 933, 934 (Tex.Crim.App. 1978). 

Appellee incorrectly asserts that without his confession, Appellant would have 

nevertheless been found guilty of an offense under § 481.121, which is not true 

upon review of the facts of this case.
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III. APPELLEE’S INTERPRETATION OF SCHLUP IS NOT 

SUPPORTED BY THE APPLICABLE CASE LAW.

Appellee insists that a Schlup claim can only be raised after a prior writ 

asserting an actual innocence claim under Herrera v. Collins, 506 U.S. 390 (1993)

has been denied, citing Ex Parte Elizondo, 947 S.W.2d 202, 208 (Tex.Crim.App. 

1996), and Ex Parte Franklin, 72 S.W.3d 671, 675 (Tex.Crim.App. 2002). AB 6; 

Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Neither Ex 

Parte Elizondo nor Ex Parte Franklin can be read for the proposition Appellee 

cites. Both of the cases cited distinguish Herrera from Schlup claims referring only 

to the types of actual innocence claims presented in the habeas petition. In a 

Herrera claim, new exculpatory evidence is presented that does not require proof 

of a constitutional violation at trial. Ex Parte Elizondo, 947 S.W.2d at 208; Ex 

Parte Franklin, 72 S.W.3d at 675-76. Neither case imposes a requirement that a 

Schlup claim be “procedurally barred”, as Appellee claims. Assuming arguendo

that Schlup claims must be otherwise barred, the “bar” at issue is the bar of direct 

appeal, not habeas. In this case, Appellant is barred from raising the 6th 

Amendment claims on direct appeal because he missed his deadline to appeal his 

original conviction. His only vehicle for presenting the otherwise barred 6th 

Amendment case is a habeas petition.
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IV. THE CREDIBILITY OF SUSAN MILLER’S TESTIMONY IS 

NOT DISPOSITIVE OF WHETHER APPLICANT RECEIVED 

HIS CONSTITUTIONAL RIGHT TO COMPETENT COUNSEL.

Appellee argues that the standard of review of mixed questions of fact and 

law accord great deference to legal conclusions based on credibility determination. 

AB 7. Appellee argues that Appellant’s original trial counsel, Susan Miller offered 

credible testimony that Appellant had been admonished of the consequences of his 

plea in Spanish. AB 8; CR 139, 142. The mere fact that the Trial Court found this 

testimony credible does not limit this Court from determining whether that 

evidence, if true, is sufficient to support the Trial Court’s finding that Ms. Miller 

complied with her Sixth Amendment duty to provide competent counsel. Ex Parte 

Harrington, 310 S.W.3d 452, 458-59 (Tex.Crim.App. 2010). Ineffective assistance 

of counsel claims are evaluated under the “totality of the representation” standard, 

requiring the reviewing court to “analyze all allegations of deficient performance, 

decide whether counsel's conduct was constitutionally deficient, and, if so, then 

consider whether those specific deficient acts or omissions, in their totality, 

prejudiced the defense.” Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 

2004).

Reviewing Ms. Miller’s statements in the most favorable light does not 

support a claim that she provided competent counsel. Ms. Miller admits that she 

had no knowledge of Appellant’s case, had no file on Appellant’s case, was not 
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previously his attorney of record, could not communicate with Appellant because 

of a language barrier, and did not advise him of the consequences of his plea. If 

anything finding that Ms. Miller’s statement is credible supports a finding that her 

representation was insufficient and incompetent under the Sixth Amendment.

Appellee’s only reference to credible testimony in support of a finding that 

Ms. Miller’s representation met the Sixth Amendment standards is her hearsay 

statement that “Mr. Singleterry had admonished Appellant of the consequences of 

his plea in Spanish.” AB 8. Appellee does not address whether this is sufficient to 

meet the Sixth Amendment right to competent counsel, only that Ms. Miller’s 

testimony was credible insofar as she believed that someone had previously 

provided him with competent counsel. Nevertheless, Appellee admits that “Ms. 

Miller’s duty as Appellant’s counsel was to insure that he was advised of the 

consequences of his plea.” AB 8. In light of her own admission that she had no 

personal knowledge of whether this was actually done, her credible testimony is 

not dispositive of the Appellant’s Sixth Amendment arguments.

V. APPELLEE’S CLAIM THAT PETITIONER’S COUNSEL OF 

RECORD WAS NOT REQUIRED TO ADVISE HIM OF THE 

CONSEQUENCE OF HIS PLEA CANNOT SUPPORT THE 

GREAT WEIGHT OF CONTRARY AUTHORITY.

Appellee asserts that Ms. Miller had no duty to “personally advise 

[Appellant] of the consequences of his plea if another attorney representing 
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Appellant did in fact advise him of the consequences.” AB 8. Appellee offers no 

authority to support this statement.

Appellant has already presented the Court with detailed analysis of how Ms.

Miller’s representation was deficient and in violation of the applicable Texas 

Disciplinary Rules of Professional Conduct. See also, Ex parte Martinez, 330 

S.W.3d 891, 900 (Tex. Crim. App. 2011)(defining deficient representation as 

performance “that fell below an objective standard of reasonableness ... under 

prevailing professional norms” and according to the necessity of the case.)

Whether Ms. Miller believed that Appellant had been admonished does not 

excuse her from personally confirming with her client that he had been properly 

admonished and that he understood what he was about to present to the Trial 

Court. Ms. Miller cannot delegate that duty. As the Court of Criminal Appeals 

explained,

[a] criminal-defense attorney ‘must have a firm command of the facts 

of the case’ before he or she may render reasonably effective 

assistance of counsel. Counsel has a duty to provide advice to his 

client about what pleas to enter, and that advice should be informed 

by an adequate investigation of the facts of the case or be based on a 

reasonable decision that investigation was unnecessary. When 

counsel’s representation falls below this standard, it renders any 

resulting guilty plea involuntary.

Ex Parte Harrington, 310 S.W.3d at 458 (citing Ex parte Welborn, 785 S.W.2d 

391, 393 (Tex.Crim.App. 1990) and Ex Parte Reedy, 282 S.W.3d 492, 500 
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(Tex.Crim.App. 2009))(emphasis added). Ms. Miller admitted that she did not 

know the facts of the case, and could not engage in any reasonable investigation 

because she could not communicate with her client. 

If the Court accepts Appellee’s justification of Ms. Miller’s actions, it will 

erode the meaning of Sixth Amendment right to competent counsel. Criminal 

defense attorneys can always blame the last person to touch the file, or otherwise 

delegate their constitutional duty to another attorney. Lost in the resulting fingerpointing is the harm to the criminal defendant, who like Appellant in this case, 

neither has sufficient command of the English language, and as an immigrant, is 

unfamiliar with U.S. institutions and our constitution. Such as result is an 

unacceptable interpretation of a criminal defendant’s constitutional rights and must 

be rejected by this Court.

VI. CONCLUSION AND PRAYER

Appellee requests that the Court uphold the Trial Court on the theory that all 

of the relevant factual findings and legal conclusions were entitled to great 

deference as credibility determinations. Additionally, Appellee erroneously states 

that Appellant would have been found guilty of the underlying offense even if he 

hadn’t confessed guilt. Finally, Appellee asserts that criminal defense attorney can 

delegate her duty of investigation and knowledge of the facts of the case. Appellant 

urges the Court to reject these erroneous interpretations of applicable law and 
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evaluate whether Appellant received adequate counsel and can be found guilty of a 

crime where another person has accepted responsibility.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court 

vacate the trial court’s judgment of guilt and grant him a new trial. In the 

alternative, Appellant prays that this Court vacate the trial court’s judgment on his 

application for a writ of habeas corpus and remand his case for further 

proceedings, or for such relief to which he may be entitled.

Respectfully submitted,

/s/ Carlos Moctezuma García

Carlos Moctezuma García

SBOT: 24065265

Email: cgarcia@garciagarcialaw.com

García & García

Attorneys at Law, P.L.L.C.

4905-A N. McColl

McAllen, TX 78504

Tel: (956) 630-3889

Fax: (956) 630-3899

Attorneys for Appellant
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing brief was served 

on the Hidalgo County District Attorney by e-filing notification on April 9, 2015.

/s/ Carlos M. García

Carlos M. García

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the Texas Rule of Appellate 

Procedure 9.4. The computer-generated word count for this document is 2,550

words, including headers and footers.

/s/ Carlos M. García

Carlos M. García