Ex parte Duque

540 S.W.3d 136

EX PARTE Jose E. DUQUE

NO. 01-15-00014-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued September 14, 2017

Discretionary Review Stricken January 10, 2018

Octavio M. River-Bujosa, 333 Simonton St. Suite 210, Conroe, Texas 77301, for Appellant.

Melissa H Stryker, 1201 Fanklin Street, Suite 600, Houston, Texas 77002, Kim Ogg, District Attorney, Harris County, Texas, for Appellee.

Panel consists of Justices Jennings, Higley, and Brown.

Laura Carter Higley, Justice

Appellant Jose E. Duque appeals from an order denying relief that he requested in a post-conviction application for writ of habeas corpus.¹ In his sole issue, Appellant contends that he was entitled to the requested habeas relief because he received ineffective assistance of counsel at the time he pleaded guilty to the third-degree felony offense of assault of a family member—impeding breathing.² Specifically, he complains that his plea counsel failed to provide accurate immigration advice during the plea proceeding, as required by Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), rendering his 2012 guilty plea involuntary.

On original submission, we affirmed the habeas court's order denying habeas relief. Ex parte Duque , No. 01-15-00014-CR, 2015 WL 5450530, at *9 (Tex. App.—Houston [1st Dist.] Sept. 15, 2015, pet. granted) (mem. op., not designated for pub.) ( Duque I ). The Court of Criminal Appeals granted Appellant's petition for discretionary review. Ex parte Duque , No. PD-1344-15, 2016 WL 1383854, at *1 (Tex. Crim. App. April 6, 2016) ( Duque II ). In so doing, the court recognized that we had issued our opinion in Duque I "without the benefit of [its] recent opinion in Ex parte Torres ," 483 S.W.3d 35 (Tex. Crim. App. 2016). The court vacated our judgment in Duque I , and remanded the case to us "to consider the effect of Torres , if any, on [our] reasoning and analysis in this case." Duque II , 2016 WL 1383854, at *1.

We affirm.

Background

Appellant, a Honduran national, came to the United States in 1997. He obtained lawful permanent resident status on March 19, 2011. One-and-one-half years later, on September 30, 2012, Houston Police Officer K. Truong was dispatched to the home of V. Cruz, following a 9-1-1 call. Cruz reported to Officer Truong that she and Appellant had an altercation regarding Appellant's payment of child support to her. She stated that, during the altercation, Appellant had put his hands around her neck and choked her. Based on the incident, Appellant was arrested and charged with the third-degree felony offense of assault of a family member—impeding breathing. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B) (West Supp. 2016).

Appellant entered into a plea bargain with the State. In exchange for Appellant's guilty plea, the State agreed to recommend a sentence of two years' deferred-adjudication community supervision and a $200 fine. Appellant was represented during the plea proceedings by attorney, R. Rodriguez. Although the record reflects that Appellant waived his right to have a court reporter transcribe the plea hearing, the record does reflect that, on October 8, 2012, in accordance with the State's recommendations, the trial court placed Appellant on two years deferred-adjudication community supervision and assessed a $200 fine against him.

In April 2013, the U.S. Department of Homeland Security (DHS) initiated proceedings to remove Appellant from the United States. DHS issued a "Notice to Appear," instructing Appellant to appear before an immigration judge. The notice stated that Appellant was a citizen of Honduras and that his "status was adjusted to lawful permanent resident on March 19, 2012." It recognized that, on October 8, 2012, Appellant had been convicted of assault of a family member—impeding breathing, an offense for which a sentence of one year or more may be imposed.³ It further recognized that the offense was committed on September 30, 2012 against V. Cruz, "a person who is protected from [Appellant's] acts by domestic or family violence laws."

The notice informed Appellant that he was "subject to removal from the United States" because he had been "convicted of a crime involving moral turpitude [third-degree felony assault of a family member] committed within five years after admission [to the United States] for which a sentence of one year or longer may be imposed" and because he was "an alien who at any time after entry has been convicted of a crime of domestic violence." See 8 U.S.C. § 1227(a)(2)(A)(i)(I), (a)(2)(E)(i) (2007). Appellant was not eligible to have his removal from the United States "canceled" by the Attorney General of the United States because he had not "been an alien lawfully admitted for permanent residence for not less than 5 years," nor had he "resided in the United States continuously for 7 years after having been admitted in any status." See 8 U.S.C. § 1229b(a) (2007).

Pursuant to the provisions in Code of Criminal Procedure Article 11.072, Appellant filed an application for a post-conviction writ of habeas corpus in which he asserted that his guilty plea had been involuntary because he had received ineffective assistance of counsel during the plea proceedings. Appellant requested the habeas court "[to] set aside his plea of guilty." Appellant alleged that his plea counsel had been ineffective because counsel had failed to advise him about the immigration consequences of his plea, as required by Padilla , 559 U.S. at 374, 130 S.Ct. at 1486.

Appellant offered his affidavit in support of the application. In his affidavit, Appellant averred that his plea counsel did not advise him that his removal from the United States was "virtually mandatory" as a result of his conviction. He stated that he had been "put in removal proceedings in the immigration court as a result of this conviction." He averred that he "found out during the removal proceedings in the immigration court that I was not eligible to apply for any realistic form of discretionary relief." Appellant testified that his plea counsel had "not explain[ed] to me the legal implications that my conviction was going to have on the different forms of discretionary relief that are available in removal proceedings." He stated, "[T]he immigration Judge ordered my removal on March 24th, 2014." Appellant concluded his affidavit by averring that, if he had known either that his guilty plea would make his deportation virtually mandatory or that he would not qualify for discretionary relief, he would not have pleaded guilty but instead would have insisted on going to trial.

Appellant also offered the affidavit from his plea counsel, R. Rodriguez, in support of his habeas application. In his affidavit, Rodriguez stated that, during the plea process, he did not inform Appellant that he was subject to "automatic deportation" if he pleaded guilty to assault of a family member—impeding breathing. Rodriguez averred that the reason he had not informed Appellant of this information was because he had not been aware at the time of the plea that assault of a family member—impeding breathing was considered a crime involving moral turpitude and that, if convicted, Appellant would be automatically deported. Rodriguez stated that he also had not known that a conviction for domestic violence would subject Appellant to automatic deportation. Rodriguez testified that he did not inform Appellant that a conviction of a crime involving moral turpitude "within the seven (7) year period after admission would prevent a ‘Legal Permanent Resident’ to apply for ‘Cancellation of Removal and Adjustment of Status' during removal proceedings" because he had also not been aware of that information.

The habeas court conducted a hearing on Appellant's habeas application. At the hearing, Appellant presented the testimony of an immigration law expert. The expert testified that, given the nature of his conviction and the period of time that he had been a permanent legal resident, the only avenue for Appellant to remain in the United States would be to prove "exceptional and extremely unusual hardships to [Appellant] and [his] family," a "virtually impossible" standard to meet.

Appellant also offered the testimony of his plea counsel, Rodriguez, at the hearing. Rodriguez stated that he had been appointed to represent Appellant in the underlying case. On the day of the plea proceedings, Rodriguez met with Appellant in the "holdover cell" next to the courtroom. Rodriguez testified that the meeting was "fairly lengthy," lasting 30 minutes to one hour. During the meeting, Rodriguez reviewed the facts of the case with Appellant. After speaking with the prosecutor, Rodriguez informed Appellant that the State would recommend "a two-year deferred adjudication probation if he were to decide to plea." Rodriguez told Appellant that he had "an option to go to trial" or he could plead guilty in exchange for the punishment the State was offering. Rodriguez stated, "[Appellant] decided to go ahead and plead and accept the two-year deferred adjudication probation."

Rodriguez confirmed that he did not advise Appellant that "the crime to which he was pleading guilty was considered for immigration purposes a crime involving moral turpitude" because he was not aware of that information. Rodriguez also confirmed that, because he lacked knowledge about the issue, he did not inform Appellant that he would be placed into removal proceedings as a result of pleading guilty. Rodriguez testified that, if he had known that removal proceedings would be initiated against Appellant as a result of his guilty plea, he "would have advised [Appellant] that he probably would consider going to trial on this case.... I would not have given him advice of taking a two-year deferred adjudication probation."

Rodriguez testified that his representation of Appellant was not "ineffective in terms of my representation on the charge that he had"; however, "looking back, not...