ACCEPTED

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

COURT OF APPEALS FILED IN

13th COURT OF APPEALS
IN THE THIRTEENTH JUDICIAL DISTRICT
CORPUSCOURT
CHRISTI/EDINBURG, TEXAS
12/17/2018 3:49:29 PM
GILBERTO ESCAMILLA § DORIAN E. RAMIREZ
Clerk TH
APPELLANT, § APPEAL FROM THE 107
§ JUDICIAL DISTRICT COURT
VS. § CAMERON COUNTY, TEXAS
§
STATE OF TEXAS § CAUSE NO. 2017-DCR-2220-A
APPELLEE. §

BRIEF FOR APPELLANT, GILBERTO ESCAMILLA

Ed Stapleton
Stapleton & Stapleton
2401 Wildflower
Brownsville, Texas 78526

ORAL ARGUMENT REQUESTED

1
 PARTIES TO THE CASE

Representing the State at Trial:

HON. PETER C. GILMAN

State Bar No. 07952500
Assistant County and District Attorneys
for Cameron County, Texas
964 East Harrison Street
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869

Representing the State on Appeal:

Luis V. Saenz
District Attorney
Bar No. 24055096
946 E. Harrison St.
Brownsville, Texas 78520
956-544-0849

2
Representing the Appellant at Trial:

HON. GUSTAVO ELIZONDO, III

State Bar No. 24086827
REYNALDO G. "TREY" GARZA, III
State Bar No. 24008806
Garza & Elizondo LLP
680 E. St. Charles, Suite 600
Brownsville, TX 78520
(956) 544-5077

Representing the Appellant on Appeal:

Edward Stapleton
Stapleton & Stapleton
Bar No. 19058400
2401 Wildflower Dr. Ste. C
Brownsville, Texas 78525
956-504-0882

The Honorable Louis Sorola and J. Manuel Banales presided at different

stages of the trial of this case.

3
 TABLE OF CONTENTS

Contents

PARTIES TO THE CASE ........................................................................................ 2

TABLE OF CONTENTS ......................................................................................... 4

TABLE OF AUTHORITIES ................................................................................... 5

REQUEST FOR ORAL ARGUMENT ................................................................... 7

STATEMENT OF THE CASE ................................................................................ 7

RESTATEMENT OF THE ISSUES ....................................................................... 8

STATEMENT OF FACTS ...................................................................................... 9

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

STANDARD OF REVIEW ................................................................................... 13

PRAYER ................................................................................................................ 35

CERTIFICATE OF COMPLIANCE ..................................................................... 36

CERTIFICATE OF SERVICE .............................................................................. 36

4
 TABLE OF AUTHORITIES
Cases

Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) ................................. 22

Cantu v. State, 13-17-00473-CR, 13 (unpublished) (Tex. App., 2018) ................ 20

Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) ..................... 13, 25

Ex Parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim.App.1980) .............................. 17

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

Hill v. Lockhart, 474 U.S. 52, 56 (1985) ......................................................... 27, 33

Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998)........................... 17

Lafler v. Cooper, 566 U.S. 156, 163 (2012) .................................................... 26, 33

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

Rivera v. State, 123 S.W.3d 21, 31 (2004) ............................................................ 17

Roe v. Flores-Ortega, 5=28 U.S. 470, 484 (2000) ................................................ 33

5
Rompilla v. Beard, 545 U.S. 374, 391-92, 125 S. Ct. 2456, 2468-69, 162 L. Ed. 2d

360 (2005) ........................................................................................................... 19

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984) ............................... 16

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) ........................... 17

Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) ..................................................... 16

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

Tex. Gov’t Code Sec. 54A.002(d) ......................................................................... 14

Tex. Gov’t Code Sec. 54A.004 .............................................................................. 15

Tex. Gov’t Code Sec. 54A.006(1) ......................................................................... 15

Rules

Texas Rules of Appellate Procedures Rule 39.1...................................................... 7

Texas Code of Criminal Procedure Article 1.13.................................................... 16

Texas Penal Code section 22.021(a)(2)(B) .............................................................. 7

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. §

BRIEF FOR APPELLANT, GILBERTO ESCAMILLA

TO THE HONORABLE JUDGES OF THE COURT OF APPEALS IN THE

THIRTEENTH JUDICIAL DISTRICT, CORPUS CHRISTI, TEXAS:

Appellant, GILBERTO ESCAMILLA, by and through undersigned counsel,

respectfully submits this, his brief, and seeks that his sentence be reversed and he

be granted a trial to assess punishment.

REQUEST FOR ORAL ARGUMENT

Appellant, GILBERTO ESCAMILLA, requests oral argument in this case

pursuant to Rule 39.1 of the Texas Rules of Appellate Procedures.

STATEMENT OF THE CASE

This appeal is taken from a prosecution of two counts of theft of property in

an amount exceeding $200,000.00 under Texas Penal Code section 31.03(e)(7) in

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

punishment for Appellant at 50 years imprisonment and a $10,000.00 fine. RR 107th

Vol. 5 P. 49.

RESTATEMENT OF THE ISSUES

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.

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.

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.

1
The Clerk’s Record on Appeal is cited “CR”.
2
The Reporter’s Record on Appeal is cited “RR”.
8
 STATEMENT OF FACTS

On December 06, 2017, the State of Texas filed an indictment against

Appellant. CR. P. 6. The indictment charged Appellant with two first-degree

felonies—(count one) theft in an amount exceeding $200,000.00 and (count two)

theft by a public servant in an amount exceeding $200,000.00 against the Juvenile

Detention Center in Cameron County, Texas known as the “Darrel B. Hester

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

Honorable Benjamin Euresti, Jr presided. On October 3, 2017, Judge Euresti signed

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

restitution to Cameron County, Texas in the amount of $1,251,578.22. RR Vol. 5

P. 49-50. On May 11, 2018, Appellant filed his Motion for New trial claiming

ineffective assistance of counsel. CR P. 114-118. On June 8, 2018, Judge Banales

presided over a hearing on Appellant’s Motion for a New Trial and denied the

motion. RR NV Vol. 2 P. 151.

SUMMARY OF THE ARGUMENT

Point of Error Number One: Invalid Order of Referral appointing Associate Judge

Sorola

The Order of Referral appointing Associate Judge Sorola to all District

Courts in Cameron County, Texas was not approved by two-thirds of Cameron

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

recused himself as presiding judge in Mr. Escamilla’s case. Therefore, Associate

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

action taken by Associate Judge Sorola is null and void.

In the alternative, assuming without agreeing that the Order of Referral is

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.

Point of Error Number Two: Failure to Present Mitigating Evidence

Mr. Escamilla contends that failing to present mitigating evidence at the

sentencing hearing was an error so serious that Appellant was not afforded his Sixth

Amendment right to counsel in a criminal proceeding.

The evidence presented at the hearing on the Motion for New Trial

overwhelmingly undermines the confidence of the trial courts actions. 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

evidence, the trial court’s decision was arbitrary or unreasonable. Therefore,

Appellant’s sentence should be reversed and remanded.

Point of Error Number Three: Failure to Investigate Trial Judge

Mr. Escamilla contends that failing to investigate Judge Banales’ history

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

judgment of a crime a defendant is accused of committing. In Texas, defendants are

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

the defendant’s attorney to inform a defendant on what is foregone strategically by

the decision. When a defendant’s attorney does not effectively conduct an

investigation of the trial judge before advising on whether to waive a trial by jury,

a defendant has not made an informed decision because a judge’s assessment of

punishment is a consequence of the defendant’s decision to waive a jury trial. Mr.

Escamilla asserts that his defense counsel’s deficient performance led to an

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

attorneys. Therefore, Appellant’s sentence should be reversed and remanded.

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

trial court’s decision was arbitrary or unreasonable.” Id.

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

Government Code Section 54A.002(d) states, “the associate judge's appointment

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

of Mr. Escamilla’s case, Judge Sorola’s acceptance and approval of Appellant’s

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

presiding judge in this case.

(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

authority is given for assessing punishment without a plea agreement announced on

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

and remanded for trial.

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.

In his second point of error Appellant contends that failing to present

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

the Sixth Amendment to the United States Constitution.

(A) STANDARD OF REVIEW

To show ineffective assistance of counsel, an appellant must demonstrate that

(1) counsel's representation fell below an objective standard of reasonableness

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

defined as "a probability sufficient to undermine confidence in the

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

ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9

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.

Crim. App. 2001).

The Court “cannot speculatively attribute the deficiencies in [the defense

attorney’s] performance to "trial strategy…." Rivera v. State, 123 S.W.3d 21, 31

(2004). Instead, the Court defines the deference owed allegedly strategic judgments

in terms of the adequacy of the investigations supporting those

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

`fulfill[ed] their obligation to conduct a thorough investigation of the defendant's

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).

(i) DEFICIENT PERFORMANCE BY COUNSEL

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

presenting mitigation evidence at his sentencing hearing. Attorney Fred Kowalski

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

to insist that a mitigation case be presented. RR NT Vol 2. P. 140-141.

Mr. Elizondo e-filed Appellant’s Memorandum in Mitigation of Punishment

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

punishment available to Judge Banales at the sentencing hearing. RR NT Vol. 2 P.

100. Due to the logistics regarding e-filing in Cameron County, Texas, the

Memorandum in Mitigation of Punishment did not reach Judge Banales before

Judge Banales pronounced Appellant’s sentencing the same day Mr. Elizondo e-

filed the Memorandum in Mitigation of Punishment. RR NT Vol. 2 P. 100-101.

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

has to present mitigation evidence notwithstanding a defendant’s objection at RR

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?

A. I think depending on every case and circumstances surrounding that case, I

think that, yes, there is some insisting that should happen for mitigation
purposes, yes.

19
 In the capital murder context, the United States Supreme Court has held that

defense counsel has an obligation to investigate evidence notwithstanding the

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

been homeless and had diminished mental capacities to be sufficient evidence to

cause a lack of confidence in the verdict. See Wiggins v. Smith, 539 U.S. 510, 534-

35, 123 S. Ct. 2527 2542, 156 L. Ed. 2d 471 (2003).

Although Rompilla considered the rights of an accused in a death penalty case,

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

an outstanding employee was prejudicial in a delivery of cocaine case. See Milburn

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

in Mr. Escamilla’s case. See Cantu v. State, 13-17-00473-CR, 13 (unpublished)

(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

stage. Id. at 271.

Here, at the hearing on the Motion for New Trial, twelve witnesses voluntarily

testified on Appellant’s behalf in regards to his good character. None of the

testifying witnesses were contacted by Appellant’s trial counsel prior to sentencing

hearing although being available at all times. The testimony cannot be said to be

minimally supportive testimony against the overwhelming evidence found to be

true of Appellant because the only testifying witness at Appellant’s sentencing

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.

(ii) PREJUDICE TO DEFENDANT

Under the second prong of Strickland, Appellant contends that his trial

counsel’s failure to investigate and present mitigation evidence during the

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

be said to be minimally supportive. The Reporters Record of the hearing on the

Motion for a New Trial revealed an outpouring of support from family and friends

from different segments of the community. The following is a summary of each of

the twelve witnesses and their testimony at the hearing on the Motion for New

Trial:

1. Thomas Pincelli—He is Catholic Priest at Our Lady of Good Counsel

Church in Brownsville, Texas. RR NT Vol. 2 P. 9. He was never asked to
testify but he would have testified and would have recommended probation.
RR NT Vol. 2 P. 10. Appellant has attended Our Lady of Good Counsel
Church for at least 7 years. RR NT Vol. 2 P. 10. Father Pincelli described
Appellant as described as a “good parishioner”. RR NT Vol. 2 P. 10.

2. Daniel Rivera—He is a family friend who has participated in team sports

with Appellant. RR NT Vol. 2 P. 12. He was never asked to testify but he
would have testified if asked and would have recommended probation. RR
22
 NT Vol. 2 P. 12-13. He has known defendant for approximately 10 years and
described Mr. Rivera always enjoyed Appellant’s company. RR NT Vol. 2
P.12.

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.

4. Diana Clough—Mrs. Clough is Appellant’s 48-year-old sister who has been

employed by the Brownsville Independent School District for 26 years. RR
NT Vol. 2 P. 38. She was not asked to testify but would have if she was asked
to testify and would have recommended probation. Id. She described
appellant as a “role model” because of his “strong work ethic.” RR NT Vol.
2 P. 38. During her testimony it was also revealed that Appellant is a veteran.
Id.

5. Crystal Arratia—Ms. Arratia is Appellant’s second cousin and a college

student who is studying sport medicine at the University of Texas at San
Antonio. RR NT Vol. 2 P. 51. He was not asked to testify but she would have
testified if asked to and would have recommended probation. RR NT Vol. 2
P. 51-52. She described Appellant as someone she relies on for counsel as a
“father figure” and she could “count on him for anything.” RR NT Vol. 2 P.
52.

6. Beatriz Gonzalez—Ms. Gonzalez is appellant’s first cousin but her

relationship was what she considered to be one of an “uncle figure” due to
the age difference between them. RR NT Vol. 2 P. 54. She is currently a
teacher’s aid at the Brownsville Independent School District. RR NT Vol. 2
P. 54. She was not asked to testify but she would have testified if asked by
Appellant’s trial counsel. RR NT Vol. 2 P. 54. She would have recommended
probation. RR NT Vol. 2 P. 55. Ms. Gonzalez considered Appellant a hero
because of his military service. RR NT Vol. 2 P. 54.

7. Genoveva Trevino—Ms. Trevino is the Director of Human Resources at the

Catholic Diocese in Brownsville, Texas and Appellant’s second cousin. RR
23
 NT Vol. 2 P. 56-57. She was not asked to testify but claims that if she was
asked she would have testified to his character and recommended probation.
RR NT Vol. 2 P. 58. Ms. Trevino considers Appellant a “family man” who
is committed to the Catholic faith. RR NT Vol. 2 P. 58.

8. Jeffrey Escamilla—Jeffrey is one of Appellant’s three sons. RR NT Vol. 2

P. 60. He was never approached by Appellant’s attorneys but would have
testified willingly as to his father’s character. RR NT Vol. 2 P. 62-63. He
considers Appellant an “amazing father” and “wouldn’t ask for anyone else.”
RR NT Vol. 2 P. 61.
9. Candy Scanlan—Ms. Scanlan is a retired nurse and Appellant’s second
aunt. RR NT Vol. 2 P. 65-66. Ms. Scanlan has known Appellant since he was
a “young boy” and occasionally saw him around town. RR NT Vol. 2 P. 66.
She considers him “very polite” and “very loving” and knows “that his family
has always been his priority.” RR NT Vol. 2 P. 66. She was not asked to
testify but she would have done so willingly. RR NT Vol. 2 P. 66. Ms.
Scanlan would have recommend probation. RR NT Vol. 2 P. 67.

10.Lupita Resendez—Lupita Resendez is a retired receptionist at Saint Mary’s

Catholic Church. RR NT Vol. 2 P. 69. She is Appellant’s godmother. RR NT
Vol. 2 P. 69. Ms. Resendez has known Appellant since he was an infant. RR
NT Vol. 2 P. 70. She always considered him a “very loving and caring young
man.” RR NT Vol. 2 P. 70. Ms. Trevino recalls that Appellant visited her
when she was hospitalized. RR NT Vol. 2 P. 70. She considers him a “good
family man.” RR NT Vol. 2 P. 70. Ms. Trevino also testified that Appellant
met with her once while he was on bond and expressed “how sorry he was”
about his crime. RR NT Vol. 2 P. 70. She was not asked to testify but would
have done so willingly. RR NT Vol. 2 P. 71.

11.Daniel Aguirre—Daniel Aguirre has worked as a corrections officer for 7

years with the State of Texas and is Appellant’s nephew. RR NT Vol. 2 P.
72-73. He was not asked to testify but would have done so willingly. RR NT
Vol. 2 P. 73. Drawing from his experience as a corrections officer, Mr.
Aguirre would have recommended probation. RR NT Vol. 2 P. 73. Appellant
is a “father figure” to Mr. Aguirre. RR NT Vol. 2 P. Appellant attend Mr.
Aguirre’s extra-curricular activities growing up. RR NT Vol. 2 P. 73-74.

12.Shirley Santiallan—Ms. Santiallan is an administrative assistant at a home

healthcare agency. RR NT Vol. 2 P. 77. Appellant is the uncle of Ms.
Santiallan’s husband and has known him for 7 years. RR NT Vol. 2 P. 77.
24
 Ms. Santiallan’s testified that her husband considers Appellant a “father
figure” and aimed to patterned his marriage after Appellant and his wife. RR
NT Vol. 2 P. 77. She considers Appellant the type of person that you tell
something important to first. RR NT Vol. 2 P. 78. As an example, she
mentioned that Appellant was the first person to hear their plans to get
marriage before her husband’s father did. RR NT Vol. 2 P. 78.

The evidence presented at the hearing on the Motion for New Trial

overwhelmingly undermines the confidence of the judgment. The Appellant

counsel’s deficient performance prejudiced Appellant. But for the deficient

performance of trial counsel, a different result would have occurred. For these

reasons, the second prong of Strickland is satisfied. Moreover, Judge Balanes

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

evidence, “the trial court’s decision was arbitrary or unreasonable.” Charles v.

State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Therefore, Appellant’s

sentence should be reversed and remanded.

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.

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

“counsel” guaranteed defendants by the Sixth Amendment to the United States

Constitution and Article 1 Section 15 of the Texas Constitution.

(A) STARNDARD OF REVIEW

To show ineffective assistance of counsel, an appellant must demonstrate that

(1) counsel's representation fell below an objective standard of reasonableness

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

course of a criminal proceeding, a proceeding in which defendants cannot be

presumed to make critical decisions without counsel's advice." Id. at 165. When an

attorney’s deficient performance caused the defendant to waive a judicial

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

defendant to give up a proceeding to which he had a right amounts to ineffective

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

(1985) (waiver of jury trial).

(i) DEFICIENT PERFORMANCE BY COUNSEL

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.

Garza, as Mr. Elizondo's law partner, served as Appellant's counsel in an advisory

capacity being that he has more experience in criminal defense that Mr. Elizondo.

RR NT Vol. 2 P. 131. Mr. Elizondo recommended Appellant seek punishment from

Judge Banales instead of a jury. RR NT Vol. 2 P. 103. Mr. Elizondo explained his

reason for this decision at RR NT Vol. 2 P. 103:

That recommendation was based on several things. It was based on

some treatment that we received from this Judge earlier in this case,
particularly at the bond hearing where my client had what I believed
to be a relatively low bond. At that time, when after he was indicted, a
second charge was added, and the District Attorney was asking that his
bond be increased to $200,000. This Judge at that time did not opt to
increase that bond at all. Not to the $200,000, and not anything above
what it was set already. So we had primarily received some good
treatment. I had also discussed this case with other lawyers and their
opinions, and it was my opinion at the time that going to a judge would
27
 be preferable perhaps than going to a jury.

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

discussing the decision with Mr. Elizondo at RR NT Vol. 2 P. 123-124:

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

to a jury trial or jury-assessed punishment was based on the following:

28
 1. Judge Banales’ Order setting the bond on count two of the

indictment;

2. Two cases in which Mr. Garza handled in the past before

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

without a plea agreement instead of a jury on a first-degree felony was deficient

performance. RR NT Vol. 2 P. 24-26; RR NT Vol. 2 P. 143-144. These were

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

opinion as to the inadequacy of their investigation of Judge Banales prior to

advising Appellant to waive his right to a jury trial and jury-assessed punishment.

As discussed at RR NT Vol. 2 P. 105-106, Mr. Elizondo acknowledged his error:

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.

A. I don't know that I would go that far to say that my level of

experience was not adequate for him to make an informed decision,
but I certainly think he would have benefited from someone who had
more experience, if I could say that.

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?

A. Yes, I think they would have turned out differently.

Moreover, at RR NT Vol. 2 P.131-132, Mr. Garza accepted responsibility for his

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.

Q. And then within that capacity, you're telling us that it is deficient,

counsel's performance is deficient to go to a judge on punishment
without doing research of his background and history and reputations?

A. That is, yes, that was deficient. It is deficient, will always be

deficient, was deficient before we took the case, it is deficient today, it
is deficient tomorrow, and Mr. Escamilla did not have effective
counsel in making that decision.

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

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

judgment of a crime a defendant is accused of committing. In Texas, defendants are

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

the defendant’s attorney to inform a defendant on what is foregone strategically by

the decision. When a defendant’s attorney does not effectively conduct an

investigation of the judge before advising his client to waive a trial by jury and jury-

assessed punishment, a defendant has not made an informed decision because a

judge’s assessment of punishment is a consequence of the defendant’s decision to

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.

(ii) PREJUDICE TO DEFENDANT

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

was to Appellant’s at RR NT Vol. 2 P. 128-130:

That morning, I Googled and I said what happened to this sentence? It

is extremely high for this type of crime. I Googled Judge Banales, and
I -- Judge, I had never Googled you, I'm sorry, but I Googled you --
and there was -- the very first hit on Google is a Texas Monthly article
about Judge Banales being the toughest sentencing Judge in the State
of Texas. And I thought to myself, whoa, Mr. Escamilla needed to
know that before he decided to go to a judge or a jury. That is an
important piece of information that would have made his decision a
knowing waiver of jury. And if -- and I wasn't present, I did not advise
Mr. Escamilla, but I didn't tell Gus, hey, Google him, and I don't know
that Mr. Elizondo Googled the Judge. And I am not trying to pitch
Google to everybody here, but I believe that if you are going to waive
your right to a jury trial, Mr. Escamilla, and I'm sorry, if you are going
to waive your right to a jury trial, it needs to be a knowing waiver. You
needed to know that you were putting your sentence in the hands of
someone who has been described by Texas Monthly as the hardest
sentencing Judge in the State. If you had known that, I don't think you
would have chosen the Judge. And I'm sorry. I feel bad because while
I didn't advise you, I didn't advise Mr. Elizondo, and I don't know if
Mr. Elizondo ever told you that. You know, after, after that Texas
monthly article, there are multiple articles about Judge Banales having
been feared by lawyers, having a history of being a tough punisher,
and again, I still respect him, I still find him to be a man of tremendous
integrity. But I think -- and I believe he will follow the law, I think if
he understands, if the Judge understands that you did not make an
informed waiver of jury, that he will give you another shot. But I mean,
it takes your defense lawyers sitting up here and saying, okay, that's
where it was. And I know you still like us, but that's where we let you
down. In making that decision, that's where we let you down. And I'm
sorry. I don't know -- I know that Mr. Elizondo is a good lawyer, he is
my partner, I love him. And he was very involved in your case. But
right there, the decision to go to a judge or a jury, you did not have all
the information. Your wife did not have all the information. Your
mother. The people who were consulting with Gus Elizondo did not
have all the information, and it was not a knowing waiver of a jury
trial. So if that makes us ineffective, if that means we did something
32
 wrong, then we need to own it, because the truth is more important
than my personal career or whatever. And the truth in this case is that
you did not have all the information you needed to make a proper
decision.

Appellant decision to waive jury-assessed punishment was based solely on

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

conduct an investigation of Judge Banales' prior rulings and general reputation on

sentencing. But for his attorney's bad advice, he would not have waived his right to

a jury trial and jury-assessed punishment. RR NT Vol. 2 P. 94.

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

prejudice prong, as interpreted in Hill v. Lockhart, is satisfied because Appellant

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

jury-assessed punishment was not an informed decision.

(B) JUDGE BANALES’ ABUSE OF DISCRETION

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

Lockhart was vital in determining whether Appellant made an informed decision

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

of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface

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

7070 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

/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:

district.attorney@co.cameron.tx.us as a registered participant of the e-File Texas,

filing system, on this the 17th day of December, 2018.

/s/__Ed Stapleton ________________

Ed Stapleton

36