Ex parte Tamayo

EX PARTE JORGE LUIS TAMAYO

NO. 02-17-00135-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

December 7, 2017

FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

TRIAL COURT NO. C-3-010919-1431372-AP

MEMORANDUM OPINION¹

Appellant Jorge Luis Tamayo appeals the habeas court's denial of his application for a writ of habeas corpus under article 11.072 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015). In three issues, Tamayo contends that: (1) his deportation to Mexico, which occurred after he filed his application but prior to this appeal, does not render theappeal moot;² (2) the habeas court abused its discretion when it denied his application because the evidence shows that his guilty plea was not made voluntarily, knowingly, or intelligently; and (3) the habeas court erred when it denied his application without first holding a full evidentiary hearing. Because we conclude that Tamayo's appeal is not moot and the habeas court did not err when it denied his application, we affirm.

I. BACKGROUND

Tamayo is a citizen of Mexico, but he began living in the United States when he was a young child. In 2015, when he was nineteen years old, a grand jury indicted him with possession of less than one gram of methamphetamine. See Tex. Health & Safety Code Ann. § 481.102(6) (West Supp. 2017), § 481.115(a)-(b) (West 2017). With the assistance of his attorney, Y. Leticia Sánchez Vigil, Tamayo entered into a plea bargain. Tamayo pled guilty in exchange for deferred adjudication, his placement on community supervision for two years, and a $200 fine. Tamayo's plea paperwork stated in part, "If you are not a citizen of the United States of America, a plea of guilty or nolo contendere for this offense may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law."

Shortly after Tamayo's plea, the United States Department of Homeland Security, Immigration and Customs Enforcement detained him and initiateddeportation proceedings against him.³ He then filed an application for writ of habeas corpus to challenge his custody on the basis of ineffective assistance of counsel. In the application, Tamayo contended that Attorney Vigil had advised him that his plea bargain would "allow him to remain free while on deferred probation, and after successfully completing probation, he could obtain an order of non-disclosure in exchange for pleading guilty." He contended that Vigil had not informed him that "by agreeing to plead guilty to a drug crime, he was actually making a decision that would . . . force him to be . . . deported without any chance at relief."

Thus, Tamayo contended that he had pled guilty under Attorney Vigil's erroneous and incomplete advice and had received ineffective assistance of counsel. He asserted that had he known of the immigration consequences of his guilty plea, he would have made a different decision. He asked the habeas court to set aside the deferred adjudication order.

To his habeas application, Tamayo attached a letter to his habeas counsel from Attorney Vigil. In the letter, Vigil stated in part,

I remember Mr. Tamayo very well . . . .

Yes, I explained the immigration consequences since day one. I do that on all my interviews, as almost 90% of my clients are notcitizens. I remember how upset his mother got when I told him that the offense was one he could be deported on. . . . I repeated myself numerous times and asked him if he understood and he stated he did.

Also, before we enter[ed] any plea I went over the plea papers with him and again, I discuss[ed] the immigration consequences with him before he initial[ed] the form. He and his mother were both very aware of the consequences.

. . . .

I am sorry that immigration wants to deport him, but he was more than aware, as was his mother, of the consequences. [Emphasis added.]

Tamayo also attached his own handwritten statement. In the statement, he provided, among other facts, that he had understood that if he pled guilty, he would not face immediate deportation but might be deported "at some point in the future." He also stated, "Before pleading guilty, Attorney Vigil showed me some court papers that said there was a chance I might be deported[,] but I did not realize that meant unavoidable deportation without the ability to return to the U.S."

Later, Attorney Vigil submitted an affidavit to the habeas court. In the affidavit, she stated in part,

On October 22, 2015 [Tamayo] retained my services. . . . On October 29, 2015 he and his mother came to my office to go over his case file. I told them that because he was illegal he would not be eligible for [p]robation. He would get a jail sentence. I told them that the drug case would definitely make him ineligible for any immigration benefits. I told him the drug case was a permanent bar from admission. I also told him he would be deported [if] he got detained by immigration simply because he was illegal in this country. His mother was upset about this. He just seemed like hedidn't understand and I explained it again several times until he said he understood. Finally, as before, I admonished him not to get any[] more cases, because the Judge could hold his bond insufficient and a warrant for his arrest would issue. Once arrested he would have to remain in jail until we disposed of all his cases. After that he would be turned over . . . for deportation proceedings.

. . . .

. . . On January 13, 2016 he and his mother were again in my office to review his case. At this time, I told them if he went to jail for anything [immigration authorities] would put a hold on him. He would immediately be placed on [d]eportation [p]roceedings, regardless of [whether] he had any criminal convictions. His mother asked I do whatever I could to keep him out of jail.

. . . On January 19, 2016 we went to court and were extended a 3 years [d]eferred [a]djudication offer. I explained the offer to him. He would plead guilty but not [be] found guilty. I explained that if the Judge asked and he told him he was illegal, he would not let him get a probation offer. I explained that if he got probation, the probation officer could report him to [immigration authorities] at any time and he would be deported.

. . . .

. . . On July 12, 2016 I went over the plea papers with him and again explained if the Judge found out he was illegal he would not accept the plea. I also reminded him that the probation officer could report him to [immigration authorities] at any time and he would be deported. Knowing all this he still accepted probation on the drug case.

. . . .

. . . On the two plea dates I again went over his immigration consequences before he signed any of the plea papers. He understood perfectly, he would be deported if immigration got a hold of him. Besides, the two Judges admonished him on the immigration consequences. He assured the Judges that he understood and still wanted to proceed with the disposition of his cases. [Emphasis added.]

The State filed a response to the habeas application. Tamayo filed a reply to the response and asked the habeas court to hold an evidentiary hearing. He also supplemented his application by arguing that he was actually innocent of the drug offense; he claimed that the drug that led to his guilty plea "actually belonged to a . . . [person] named Areeba."

The habeas court adopted the State's proposed findings of fact and conclusions of law and denied Tamayo's application without a hearing. Among other conclusions, the habeas court concluded that Attorney Vigil's affidavit was credible and that she correctly admonished Tamayo about the deportation consequences of his plea. Sometime after Tamayo submitted his application, he was deported to Mexico. This appeal followed.

II. DISCUSSION

A. Tamayo's Deportation Does Not Moot this Appeal.

On our request, in his first issue, Tamayo discusses whether his deportation renders this appeal moot. Tamayo filed his article 11.072 application for a writ of habeas corpus while in physical custody of the Department of Homeland Security, and he was later deported. See Tex. Code Crim. Proc. Ann. art. 11.072, § 2(b) (describing the circumstances in which an applicant may seek habeas corpus relief from an order imposing community supervision). We asked both parties to address the issue of whether the deportation rendered this appeal moot. Tamayo and the State responded that the appeal is not moot because theoutcome of this appeal could affect Tamayo's ability to return to the United States. We agree.

An issue becomes moot when we cannot grant effectual relief. Chacon v. State, 745 S.W.2d 377, 378 (Tex. Crim. App. 1988); see also Knox v. Serv. Emps. Intern. Union, Local 1000, 567 U.S. 298, 307, 132 S. Ct. 2277, 2287 (2012) (explaining that a case becomes moot only when it is impossible for a court to grant any effectual relief to the prevailing party). We must dismiss an appeal that is moot because such an appeal is not justiciable. Pharris v. State, 165 S.W.3d 681, 687 (Tex. Crim. App. 2005); Roberts v. State, 508 S.W.3d 310, 311 (Tex. App.—Fort Worth 2013, no pet.).

Habeas corpus is available to applicants who are "restrained in [their] liberty." Tex. Code Crim. Proc. Ann. art. 11.01 (West 2015). A potential collateral consequence from a criminal judgment may "restrain" an applicant's liberty such that habeas corpus relief is available. See Ex parte Harrington, 310 S.W.3d 452, 454, 457-58 (Tex. Crim. App. 2010); see also Ex parte Glass, 203 S.W.3d 856, 857 (Tex. Crim. App. 2006) (recognizing that collateral consequences may prevent an article 11.072 writ application from becoming moot).

To argue that Tamayo's deportation does not render this appeal moot, the State relies on Cuellar v. State, 13 S.W.3d 449, 451 (Tex. App.—Corpus Christi 2000, no pet.). There, the State argued that Cuellar's deportation, which followed his conviction for a drug offense, rendered his appeal from the...