Ex parte Aguilar

EX PARTE JESUS AGUILAR

No. 08-14-00204-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

March 9, 2016

Appeal from the 243rd Judicial District Court of El Paso County, Texas

(TC# 970D04229-243-1)

OPINION

This is a State's appeal from a trial court's judgment granting Jesus Aguilar's writ of habeas corpus. See TEX.CODE CRIM.PROC.ANN. art 44.01(k)(West Supp. 2015); see also Ex parte Cherry, 259 S.W.3d 295, 297 (Tex.App.--Beaumont 2008, no pet.)(trial court's order granting Article 11.072 writ and vacating order of deferred adjudication was appealable by the State under Article 44.01(k)). Aguilar was indicted for the felony offense of possession of a controlled substance in penalty group 1, to wit: cocaine, weighing less than 1 gram, alleged to have occurred on or about May 3, 1997. On January 15, 1999, pursuant to a plea agreement, Aguilar's charge was reduced to a class-A misdemeanor, to which he pled guilty. In accordance with the plea agreement, the trial court deferred entry of judgment and placed Aguilar on two years' community supervision. On February 25, 2000, the trial court granted Aguilar's request for early termination of his community supervision.

On May 28, 2014, Aguilar filed his application for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure. In it, he asserted his trial counsel rendered ineffective assistance by failing to inform him of the consequences of pleading guilty. Aguilar also alleged that he received ineffective assistance of counsel when his trial counsel failed to pursue a motion to suppress the cocaine which formed the basis of his guilty plea.

On July 1, 2014, the habeas court held an evidentiary hearing and granted Aguilar's writ application, thereby vacating his conviction, and ordered the case to be set for a new trial. For the reasons that follow, we reverse the trial court's judgment.

FACTUAL BACKGROUND

The Park

On May 3, 1997, Aguilar went to a park in Anthony, Texas, with friends around 12 p.m. He noticed one of his neighbors, Ricardo Marmalejo, sitting on one of the park benches. Aguilar walked over to greet Marmalejo. Officer Jose Rodriguez, a police officer with the Anthony Police Department, was on patrol at the park when he observed Marmalejo and Aguilar. According to Officer Rodriguez's police report, he noticed that Marmolejo picked an item up from the table and then bent over so that Officer Rodriguez could not see him place the item in his right-front pants' pocket. Due to this suspicious behavior, Officer Rodriguez approached them and asked for identification. The police report notes that Rodriguez detected a strong odor of marijuana coming from both men. Aguilar testified at his writ hearing that when Officer Rodriguez approached him, he was aggressive and made Aguilar feel that he was not free to leave.

On direct examination, Aguilar's testimony provided in relevant part:

[Aguilar]: When I said hi to [Marmalejo], the police arrived.

[Aguilar's counsel]: What did the police do with you?

[Aguilar]: He put me on the side. And then he asked me for my driver's license, and I pulled out my wallet.

[Aguilar's counsel]: At the time that that happened when he pulled you on the side and asked for you [sic] driver's license, had you done anything wrong?

[Aguilar]: No.

Aguilar indicated that Officer Rodriguez never told him exactly what he was being charged with until after the incident. He claimed that he was not in possession of drugs, specifically cocaine, that day. However, on cross-examination, Aguilar testified as follows:

[The State]: Then a police officer asked you for your identification?

[Aguilar]: Yes.

[The State]: And you pulled out your wallet to give him your identification?

[Aguilar]: Yes.

[The State]: And did a piece of paper fall out of your wallet?

[Aguilar]: I don't remember anything. He mentioned that something fell out of my pocket.

[The State]: Right. The police report says that a piece of paper fell out. It was a diamond-folded paper.

[Aguilar]: I remember he pulled out my wallet. He pulled it out himself.

[The State]: So--okay. Your testimony today is that you didn't pull out your wallet?

[Aguilar]: He said something fell out of my pocket and I go --

[The State]: Just to be clear, did you pull out your wallet, sir?

[Aguilar]: He's the one that put his hands behind and he pulled it out.

[The State]: So your testimony is that the officer pulled out your wallet?

[Aguilar]: Yes, sir.

[The State]: Okay. And a piece of paper fell out?

[Aguilar]: That's what he said, yes, sir.

[The State]: And that piece of paper had cocaine in it?

[Aguilar]: According to him, it did.

[The State]: And you were arrested for possession of cocaine?

[Aguilar]: Yes, sir.

At the conclusion of this encounter, Officer Rodriguez arrested Aguilar for possession of cocaine.

Aguilar's Attorneys

Attorney Mike Herrera initially represented Aguilar. On May 18, 1998, a court order set a 28.01 hearing for July 6, 1998. Herrera did not file any motions to suppress for the court to consider at this hearing. However, on December 11, 1998, attorney Sergio Coronado filed a pretrial motion to suppress evidence. On January 12, 1999, Aguilar filed a written motion to substitute Coronado for Herrera. Aguilar testified that he met with Coronado approximately three times.

According to Aguilar, Coronado failed to advise him on the law of search and seizure. Aguilar also explained that the first time Coronado realized that Aguilar was not a U.S. citizen was five minutes before he pled guilty. When Coronado inquired into the situation, Aguilar responded that he did not have any papers. Coronado then advised Aguilar to proceed with the guilty plea. According to Aguilar, Coronado indicated that it would still be his best option to plead guilty because if not, he would lose his case. Aguilar testified that he complied and pled guilty because he did not have any other options.

The Immigration Proceedings

The U.S. immigration office contacted Aguilar in 2014, about four or five months prior to the writ hearing. The office presented Aguilar with a deportation form and indicated that his deportation situation arose as a result of a crime he had committed. Aguilar signed the form, still believing he had no other options. Aguilar subsequently hired an immigration attorney and is currently appealing his deportation. Aguilar testified that he was unaware of how his possession charge was going to affect him. Had he known that deportation was one of the consequences of pleading guilty, he would not have done so. He also explained that he would have also filed a motion to suppress, and if he lost the motion, then he would have gone to a jury trial to try and establish his innocence.

The Trial Court's Findings of Fact and Conclusions of Law

After we issued an order to for the trial court to make findings of fact and conclusions of law, pursuant to TEX.CODE CRIM.PROC.ANN. art. 11.072, § 7 (West 2015), the trial court determined that Aguilar's counsel was ineffective because he failed to (1) advise him of the possibility of deportation and (2) file a pretrial motion to suppress the cocaine. The trial court went on to explain that had Coronado made such a filing, Aguilar's case probably would have been dismissed. The State now appeals.

STANDARD OF REVIEW

We apply an abuse of discretion standard when reviewing a trial court's decision to grant or deny habeas relief. Ex parte Aguilar, No. 08-12-00369-CR, 2014 WL 7234592, at *4 (Tex.App.--El Paso Dec. 19, 2014, no pet.)(not designated for publication); Ex parte Wheeler, 203 S.W.3d 317, 323-24 (Tex.Crim.App. 2006). We view the facts in the light most favorable to the trial court's ruling and defer to the trial court's implied factual findings that are supported bythe record. Ex parte Wheeler, 203 S.W.3d at 325-26; Washington v. State, 326 S.W.3d 701, 704 (Tex.App.--Houston [1st Dist.] 2010, no pet.). To the extent the ultimate resolution of the application turns on the application of law, we review the determination de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003)(per curiam). We will reverse the trial court's ruling only if we conclude it is arbitrary, unreasonable, and made without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh'g).

Generally, we afford great deference to a trial court's determinations of fact when supported by the record. Ex parte Wheeler, 203 S.W.3d at 325-26. However, when such determinations lack support in the record, the rational for according deference disappears. See Ex parte Flores, 387 S.W.3d 626, 635 n.39 (Tex.Crim.App. 2012)("When our independent review of the record reveals findings and conclusions that are unsupported by the record, we will, understandably, become skeptical as to the reliability of the findings and conclusions as a whole."). We must affirm a trial court's ruling on a habeas petition if the ruling is correct based on any legal theory before the court, regardless of whether some of the reasons given by the court appear to be faulty. Ex parte Pipkin, 935 S.W.2d 213, 215 n.2 (Tex.App.--Amarillo 1996, pet. ref'd).

INEFFECTIVE ASSISTANCE OF COUNSEL

Aguilar based his habeas corpus application on a denial of the effective assistance of counsel, which he argued rendered his plea involuntary. The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Ex parte Luna, 401 S.W.3d 329, 333(Tex.App.--Houston [14th Dist.] 2013, no pet.). The Strickland two-pronged test for ineffective assistance of counsel applies in the guilty plea context. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v....