Ex parte Cisneros

EX PARTE: MANUEL CISNEROS

No. 08-11-00180-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

March 28, 2013

Appeal from the

168th District Court

of El Paso County, Texas

(TC# 20040D05971-168-1)

OPINION

The State of Texas appeals a grant of habeas corpus to Manuel Cisneros contending in two issues that: (1) the rule in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) was a new rule and therefore not to be applied retroactively; and (2) that the trial court abused its discretion in granting Cisneros' post-conviction habeas relief where Cisneros failed to show a reasonable probability that, but for his counsel's actions, he would have rejected a guilty plea and insisted on going to trial, and failed to prove ineffective assistance of counsel, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons set out below, we reverse.

FACTUAL SUMMARY

On October 17, 2004, Officer Noe Juarez of the Socorro Police Department went to theFiesta Bar to assist with an investigation by the Texas Alcoholic Beverage Commission. When Officer Juarez entered the bar, Cisneros, while keeping an eye on the officer, whistled and rushed to the end of the counter where several customers were seated, then grabbed an ashtray and rushed toward the middle of the bar. As Officer Juarez moved towards Cisneros and attempted to go behind the counter, the customers who had been sitting at the end of the counter blocked the entrance to prevent Officer Juarez from stopping Cisneros. Cisneros dumped the ashtray's contents into a bowl containing water and added more water. When Officer Juarez broke through the barricade and approached Cisneros, he saw a white powdery substance dissolving in the bowl of water. When Officer Juarez attempted to pour the water out of the bowl and preserve the white powdery substance, Cisneros grabbed the side of the bowl to prevent Officer Juarez from doing so. Officer Juarez took Cisneros into custody at that point but was unable to preserve any of the substance.

Officer Juarez conducted a search incident to arrest and found a small baggie containing a white powdery substance in the right front coin pocket of Cisneros' jeans. A field-test was conducted on the substance, which tested positive for cocaine. Officer Cisneros was instructed to submit the case as a non-arrest as his assistance was needed at a traffic accident with fatality. In the supplemental offense report, Cisneros was accused of committing the offenses of tampering with physical evidence and possession of cocaine.

Cisneros was indicted for the state-jail felony offense of possession of cocaine in an amount of less than one gram, while the evidence tampering charge was declined for prosecution. Pursuant to a plea agreement with the State, which included an agreement to prosecute the offense as a class-A misdemeanor pursuant to TEX.PENAL CODE ANN. § 12.44(b)(West 2011), Cisnerospled guilty to the offense as charged in the indictment, and the trial court assessed punishment at nine months' confinement, probated for eighteen months, placing him on community supervision, and a $500 fine. Cisneros did not appeal the trial court's order placing him on community supervision.

At the hearing on the guilty plea, Cisneros acknowledged that he signed the plea papers and further acknowledged that he understood to what offense he was pleading guilty. The Court asked Cisneros the following:

Court: Are you a citizen of the United States?

Cisneros: No, sir.

Court: Do you understand that a plea here today could subject you to deportation, exclusion from admission, denial of naturalization under federal law, sir?

Cisneros: Yes, Sir.

Cisneros also signed an acknowledgement that by pleading guilty to the offence that he may be deported, excluded from future admission to the United States, or denied naturalization.

On April 6, 2010, a Notice to Appear was issued to Cisneros by the Department of Homeland Security, advising that removal proceedings had been commenced against him. According to the Notice, Cisneros entered the United States on or about January 1, 2009 as a nonimmigrant visitor with authorization to remain in the United States for a temporary period not to exceed 30 days; that Cisneros remained in the United States beyond those 30 days without authorization; and that Cisneros was convicted in 2005 for the offense of Possession of a Controlled Substance. The Department of Homeland Security charged that Cisneros was subject to removal pursuant to: (1) Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, in that Cisneros was convicted of a violation of a State law relating to a controlled substance; and (2) Section 237(a)(1)(B) of the Immigration and Nationality Act, in that after admission as anonimmigrant, Cisneros remained in the United States for a time period longer than permitted under the Immigration and Nationality Act.

Cisneros filed an application for writ of habeas corpus under Article 11.072 of the Code of Criminal Procedure on December 15, 2010. The trial court held an evidentiary hearing on March 3, 2011, and another hearing on April 28, 2011, where the court heard further argument. At the March 3 hearing, Cisneros¹ presented an affidavit stating, in relevant part:

My wife is a United States citizen. I am eligible to adjust my status to a lawful permanent resident through my wife. I told both Travis Ketner and Manual Barraza [Cisneros' attorneys]² that I was not a citizen, that I lawfully entered the United States on a visitor visa. Neither Mr. Ketner nor Mr. Barraza told me that I would lose my chance to become a lawful permanent resident if I pled guilty. Neither lawyer told me that I would be detained in jail by immigration if I pled guilty. Neither told me that I would be deported for life if I pled guilty. If I had known about the immigration consequences, I would have fought my case or asked my attorneys to allow me to plead to a crime that would not make me deportable for life. My 3 children are citizens of the United States. My wife and children live in the United States. I need to be with my wife and children and do my duties as a husband and father.

In his affidavit, Cisneros challenged the facts presented in the plea hearing, stating, in part, that the police "said they found a one dollar bill with drug residue, but I know nothing about that." At the hearing, Cisneros presented testimony from his family members, neighbors, and acquaintances, who testified about Cisneros' relationship with his family and about his character in general.

Cisneros' wife testified on cross-examination that she believed Cisneros would have wanted to avoid going to jail and that the desire to avoid jail time would have been a reason for him to plead guilty in exchange for probation. She also testified that Cisneros' laser visa had expiredand Cisneros had not obtained a renewal. She was present at some, but not all, of the meetings Cisneros had with his attorneys and was not sure what may have been discussed. She and Cisneros did not discuss adjusting his immigration status until she became a citizen in 2007.

Following the March 3 hearing, the trial court entertained additional argument on several issues via email.³ Among the arguments and documents received was the "Applicant's Memorandum on Immigration Consequences of Plea to Texas Penal Code Sec. 37.09." In the Memorandum, Cisneros argued that if he had been convicted of the evidence tampering charge, a third-degree felony instead of the State jail felony of possession of cocaine, he would have been likely convicted of a crime that involves "moral turpitude" and subject to deportation but would have also been eligible for a waiver relating to his immigration status, and supplemented the Memorandum to argue this in support of his prejudice argument. On April 28 a second hearing was held, which focused on the additional arguments requested by the court. The trial court granted the writ of habeas corpus on May 3, 2011, and issued findings of fact and conclusions of law on October 14, 2011. The State timely appealed.

HABEAS RELIEF

The State contends that: (1) the rule in Padilla was a new rule and therefore not to be applied retroactively; and (2) that the trial court abused its discretion in granting Cisneros' post-conviction habeas relief where Cisneros failed to show a reasonable probability that, but for his counsel's actions, he would have rejected a guilty plea and insisted on going to trial, and failed to prove ineffective assistance of counsel, pursuant to Strickland.

Standard of Review

We apply an abuse of discretion standard when reviewing a trial court's decision to grant ordeny habeas relief. Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex.App.--Houston [1st Dist.] 2010, no pet.); Ex parte De Los Reyes, 350 S.W.3d 723, 728 (Tex.App.--El Paso 2011, pet. granted), rev'd, -- S.W.3d --, 2013 WL 1136517 (Tex.Crim.App. March 20, 2013). 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 by the record. Ex parte Wheeler, 203 S.W.3d at 325-26; Washington, 326 S.W.3d at 704. See also Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003)(per curiam)(holding that reviewing courts afford almost total deference to the court's determination of the historical facts supported by the record, especially when those facts are based on an evaluation of credibility and demeanor, and that if the trial court does not make explicit findings that the reviewing court will grant deference to implicit findings that support the court's ruling), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007); Ex parte De Los Reyes, 350 S.W.3d at 728 (noting same). To the extent the ultimate resolution of the application turns on an application of law, we review the determination ...