Ex parte Juara

643 S.W.3d 702

EX PARTE Parry JUARA

No. 02-21-00077-CR

Court of Appeals of Texas, Fort Worth.

Delivered: December 9, 2021

Discretionary Review Refused March 9, 2022

ATTORNEYS FOR APPELLANT: BRUCE ANTON & BRETT ORDIWAY, UDASHEN ANTON, DALLAS, TEXAS.

ATTORNEYS FOR STATE: SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; JOSEPH W. SPENCE, ASSISTANT CRIMINAL DISTRICT ATTORNEY, CHIEF OF POST-CONVICTION; JOSHUA LEWELLYN, ASSISTANT CRIMINAL DISTRICT ATTORNEYS TARRANT COUNTY DISTRICT ATTORNEYS OFFICE, FORT WORTH, TEXAS.

Before Sudderth, C.J.; Bassel and Walker, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice Bassel

I. Introduction

In two issues, Appellant Parry Juara challenges the trial court's denial of his application for writ of habeas corpus through which he sought relief under the procedure specified in Article 11.072 of the Texas Code of Criminal Procedure. Juara sought habeas relief predicated on a claim that he had received ineffective assistance of counsel when he pleaded guilty to a drug-possession charge because his plea counsel failed to advise him that a guilty plea would lead to his deportation. To sustain this claim, Juara bore the burden of proving (1) that counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (2) that he was prejudiced as a result of counsel's errors, in that, but for those errors, there is a reasonable probability that he would have not pleaded guilty. See Strickland v. Washington , 466 U.S. 668, 687, 693, 104 S. Ct. 2052, 2064, 2067–68, 80 L.Ed.2d 674 (1984).

In his first issue, Juara claims that the trial court erred by concluding that his plea counsel's performance was not deficient because "the deportation consequence of [his] guilty plea was not truly clear." We do not reach this issue. See Tex. R. App. P. 47.1.

In his second issue, Juara argues that the trial court erred by failing to consider the totality of the circumstances when it determined that Juara was not prejudiced by his counsel's performance. Juara's narrow attack is wrong on the facts and does not persuade us that the trial court abused its discretion by finding that Juara failed to prove that he was prejudiced.

Because Juara failed to make one of the required showings to obtain relief, we affirm the trial court's order denying habeas relief.

II. Factual and procedural background

A. The grounds that Juara asserted as a basis for habeas relief

Juara filed an application for writ of habeas corpus invoking Article 11.072 of the Texas Code of Criminal Procedure —the writ procedure that applies when a defendant has been placed on community supervision after a guilty plea. See Tex. Code Crim. Proc. Ann. art. 11.072. In the application, Juara sought relief from the consequences of his prior guilty plea to the charge of possessing cocaine in an amount of less than one gram. The general basis for relief stated in Juara's writ application is as follows: "Juara did not enter his plea of guilty knowingly, voluntarily, or intelligently. Juara did not receive the effective assistance of counsel during plea negotiations." Juara alleged that the advice given to him by his plea counsel was inadequate because Juara was not informed of the immigration consequences of a guilty plea.

B. The procedural path that Juara's writ application took

The State responded to Juara's application, and a magistrate conducted a hearing on the application. The magistrate adopted the findings of fact and conclusions of law submitted by the State. In turn, the trial court adopted the actions of the magistrate. Juara then appealed to this court.

C. The trial court's findings that detailed why it denied Juara habeas relief

The findings and conclusions are lengthy and detailed; there are ninety-seven findings of fact and thirty-eight conclusions of law. Because of the detail contained in the findings, we will rely on them heavily to describe the factual background of this matter.

The findings outline the underlying facts of the charge to which Juara had pleaded guilty and for which he was placed on community supervision. The findings also outline the background and the procedural facts of the writ process.

1. The findings that address the testimony of immigration counsel

The findings detail the testimony of an immigration lawyer whom Juara's family retained to fight a deportation proceeding initiated against him. Immigration counsel had represented Juara in a deportation proceeding before an immigration judge and a subsequent appeal of an "order of removal" to the Board of Immigration Appeals, an appeal that Juara lost. Immigration counsel described the likelihood of deportation under federal law should a defendant plead guilty to a state drug charge.

Most of immigration counsel's testimony outlined differences between offenses for possession of cocaine under Texas law and federal law and how those differences impact whether a guilty plea to a Texas possession charge triggers deportation. Generally, immigration counsel testified that deportation based on a state conviction for possession of a controlled substance is not automatic because "[u]nder United States immigration law, a person is made deportable by a conviction for a drug offense only if the applicable drug has an analogue in the federal Schedule of Controlled Substances." This principle impacts a person convicted of a Texas offense for cocaine possession because the schedule of controlled substances in Texas law contains one type of cocaine not listed in the federal schedule of controlled substances. The Texas schedule includes position isomers of cocaine while the federal schedule does not. Compare Tex. Health & Safety Code Ann. § 481.102(3)(D)(i), with 21 U.S.C.A. § 812(c), Schedule II(a)(4).

Immigration counsel testified that this clash between Texas law and federal law has a direct impact on whether a guilty plea to a Texas cocaine possession charge would cause a defendant to be deported. If a person challenging deportation on the basis of a drug conviction can show that Texas actually prosecutes for possession of the type of cocaine not listed in the federal schedule, a "conviction for possession of cocaine would be rendered non-deportable under [what immigration counsel described as] the categorical approach established by the Supreme Court." But immigration counsel noted that the categorical approach is not as helpful to a defendant as it appears; in 2020, the Fifth Circuit held that a person challenging deportation would have a nearly impossible task to show that Texas actually prosecutes possession of its unique category of cocaine because there were no citable decisions on the issue and because a charging document under Texas law need not specify the particular type of cocaine a defendant possessed. See Alexis v. Barr , 960 F.3d 722, 729 (5th Cir.), cert. denied , ––– U.S. ––––, 141 S. Ct. 845, 208 L.Ed.2d 422 (2020).

Immigration counsel, however, had discovered two cases in Dallas County indicating that defendants were being prosecuted under Texas law for possession of the unique category of cocaine.¹ That discovery appears to have come after Juara's initial immigration proceeding, but in response to the discovery of the Dallas cases, immigration counsel filed a motion to remand with the Board of Immigration Appeals. The Board denied the motion.

The findings highlight how the complexion of the advice on the immigration consequences of deportation had changed from the time of Juara's plea as the law had evolved and how an earlier discovery of the Dallas cases might have impacted Juara's deportation proceeding had he known of them in time to present them to the immigration judge who originally heard his immigration proceeding. The ultimate finding on immigration counsel's testimony was that "[t]here is evidence that the immigration consequences of [Juara]’s conviction for possession of cocaine were not ‘truly clear.’ "

2. The findings that address the timing of developments in immigration law that impacted Juara's immigration status

The findings explicitly deal with the timing of the developments in the law that impacted the question of whether Juara's plea triggered his deportation and why the trial court ultimately concluded that the law was not "truly clear" at the time of his plea:

69. At the time of [Juara]’s plea, the two cases used to demonstrate that Texas prosecuted cases involving [the type of cocaine listed on the Texas schedule] did not exist.

70. It is not certain whether there existed cases which demonstrate that Texas prosecuted cases involving [the type of cocaine listed on the Texas schedule] at the time of [Juara]’s plea.

71. At the time of [Juara]’s plea, the Fifth Circuit case which recognized that the Texas definition of cocaine was facially broader than the federal definition had not yet been decided. Alexis .

72. The categorical approach to determining whether a state offense is deportable because it is also a federal offense was established long before [Juara]’s 2018 guilty plea.

73. At the time of [Juara]’s plea, the Texas definition of cocaine included [the type of cocaine listed on the Texas schedule] and was thus broader than the federal definition, as it is now. Compare 21 U.S.C.[A.] §§ 802(14) (effective July 22, 2016 to Oct. 23, 2018), 812 [Schedule] II(a)(4) (effective July 9, 2012 to Dec. 19, 2018), with Tex. Health & Safety Code § 481.102(3)(D) (effective Sept. 1, 2017).

74. Even if the law were settled at the time of [Juara]’s plea, there was still a chance that an immigration attorney could have found a case [in which] the State prosecuted an offense involving [the type of cocaine listed on the Texas schedule].

75. Thus, even at the time of [Juara]’s plea, deportation was not a "truly clear" consequence of his guilty plea from an immigration law perspective. [Record references omitted.]

3. The findings that address Juara's testimony

Juara had filed an inmate declaration in support of his writ application and also testified at the...