Ex parte Torres

483 S.W.3d 35

Ex Parte Manuel Torres, Appellant

NO. PD–0679–14

Court of Criminal Appeals of Texas.

Delivered: February 10, 2016

Mario Ortiz, El Paso, TX, for Appellant.

Lily Stroud, Assistant District Attorney, El Paso, TX, Lisa C. McMinn, State's Attorney, for The State.

OPINION

Alcala, J., delivered the opinion for a unanimous Court.

This case comes to us on discretionary review of a direct appeal addressing a trial court's denial of habeas relief that had been requested pursuant to Padilla v. Kentucky. See U.S. CONST. AMEND. VI, XIV ; Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In this ineffective-assistance-of-counsel appeal, we determine that trial counsel performed deficiently by failing to adequately advise Manuel Torres, appellant, regarding the presumptively mandatory deportation consequences of his plea of guilty. See Ex parte Torres, No. 08–12–00244–CR, 2014 WL 1168929, at *5 (Tex.App.–El Paso Mar. 21, 2014) (not designated for publication). We also determine that the record supports the trial court's conclusion that appellant was not prejudiced as a result of counsel's error because appellant failed to show that he would have pursued a trial had he been correctly advised about the immigration consequences of his plea. See id. at *6. Accordingly, we overrule the State's third ground in its petition for discretionary review that contends that trial counsel did not render deficient performance, and we sustain the first two grounds that assert that the court of appeals erred by determining that appellant was prejudiced.¹ We, therefore, reverse the judgment of the court of appeals and reinstate the trial court's judgment denying relief.

I. Background

Appellant is a Mexican national whose parents brought him to the United States as a young two- or three-year-old child. In 2006, appellant obtained lawful permanent resident (LPR) status, which gave him legal permission to reside and work in this country. In February 2011, appellant, on two occasions, went to Whataburger restaurants and stole money from the cash registers. At the time of his arrest for those offenses, appellant was found to be in possession of cocaine and marijuana. He was subsequently charged with the felony offenses of robbery and possession of cocaine.² In July 2011, appellant entered into a plea bargain with the State.

In exchange for appellant's plea of guilty to both offenses, the State agreed to recommend a sentence of ten years' deferred-adjudication community supervision on the robbery charge and five years' deferred-adjudication community supervision on the possession charge. In addition, the State agreed to forgo prosecution of a related burglary-of-a-building charge and to decline prosecution on a misdemeanor possession-of-marijuana charge. The trial court accepted appellant's guilty plea, and it sentenced him in accordance with the State's recommendations.

Several days after the plea hearing, appellant was re-arrested on separate charges. At that point, Immigration and Customs Enforcement (ICE) became aware of appellant's plea to the robbery and possession offenses, and it placed a detainer on him that would prevent him from being released from law-enforcement custody. ICE subsequently transferred appellant to a federal immigration detention facility, and it initiated removal proceedings against him.

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 challenged the validity of his guilty plea on the basis of ineffective assistance of counsel.³ Specifically, applicant alleged that trial counsel was ineffective for having failed to properly advise him that "a plea of guilty on a charge involving a controlled substance would automatically place [him] in removal proceedings due to his lawful permanent residence status." He further asserted that counsel's failure to properly advise him harmed him in that "he is facing deportation and is under removal proceedings [.]" In sworn affidavits accompanying his original and amended applications, appellant alleged that, although counsel was aware that he was not a citizen, counsel never told him that his plea would result in mandatory deportation. He stated,

Under [the] advice of my attorney, I took the plea because I was told that I would not be convicted of these cases so long as I did what the Court told me to do. On the day of the hearing the Court also told me that I would not be convicted so long as I did everything that was asked of me. My attorney did not advise me that if I pleaded guilty, even as a deferred adjudication, I would be put in deportation proceedings.

He further stated that the "first and only time" that counsel discussed potential immigration problems with him was after he was re-arrested for a subsequent offense, at which point counsel told him that an immigration hold had been placed on him "because [he] had pleaded," and, at that point, counsel advised him to "contact an immigration attorney regarding the immigration case."

The habeas court held a hearing on appellant's claim. Because he was in federal immigration custody, appellant did not attend the hearing. After obtaining an affidavit from appellant's trial counsel, the State called him as a witness.⁴ In his testimony before the habeas court, appellant's trial counsel explained that he was the public defender assigned to appellant's case. He recalled that appellant had given an inculpatory statement to the police, which prompted counsel to recommend that appellant accept the State's plea offer. Counsel stated that, in his dealings with appellant and his family, "they were mostly concerned, first, about getting him out of jail," rather than being concerned about the potential immigration consequences of appellant's offenses. Counsel stated that he admonished appellant "from the get-go" that, "because of his status as a noncitizen, [he] should consult an immigration lawyer." Counsel stated that he "certainly discussed" appellant's immigration status with him and that appellant was "definitely [ ] aware of the possibility of immigration consequences of pleading guilty to two felony offenses." Asked specifically what he told appellant regarding the immigration consequences of his guilty plea, counsel stated that he told appellant

[t]hat he had two felonies and that either one of them could result in his deportation and that's why it was—it was important for him to hire an immigration lawyer, because the public defender's office couldn't help him on that part of the case; that this [case] was not going to end by his plea....

I did tell him that the federal government is much more serious than they have been in the past about [deportation]. I didn't say that it was going to happen the next day. But as far as how imminent that it could be, I just impressed on him the need to hire an advocate to represent him on the immigration side, since these were serious felony charges, either one of which could result in his deportation ... under federal law.

Counsel indicated that he had discussed appellant's immigration status with him at least twice during the case. He denied representing to appellant that he would not be deported. He further denied ever telling appellant that, if he successfully completed his term of community supervision, the guilty plea would be "off his record," instead suggesting that he told appellant that, although the charges would be "dismissed," there would "always be a record of [his] arrest, indictment, guilty plea and probated sentence as part of [his] permanent record." Counsel indicated that he had reviewed the plea papers with appellant, including that portion of the plea papers that stated, "If you are not a citizen of the United States, by pleading guilty or nolo contendere to this offense, you may be deported, excluded from future admission into the United States or denied naturalization under federal law."

On cross-examination by habeas counsel, trial counsel acknowledged that he had never independently reviewed the Immigration and Nationality Act (INA) to determine whether the offenses to which appellant was pleading guilty were deportable offenses, and he further conceded that he did not know what constituted a deportable offense under the INA, other than what he had learned at legal seminars. Counsel acknowledged that, although he had advised appellant that he could be deported as a result of his guilty plea, he did not affirmatively tell appellant that he would be deported because, in his experience, a person can sometimes plead guilty to an aggravated felony and never actually be deported.

After the close of testimony, the trial court denied relief. The trial judge stated on the record that, as to any factual dispute between counsel's testimony and appellant's assertions in his affidavits, he "believe[d] [counsel's] version of the facts and disbelieve[d] [appellant's] version of the facts." The trial judge further stated, "As far as [counsel's] legal representation, I believe that his legal representation was not ineffective."

The trial court made multiple factual findings determining that trial counsel did not perform deficiently. Its subsequent written findings of fact were as follows:

• "[Counsel] testified that he discussed immigration consequences with the applicant approximately three times prior to the applicant's guilty plea."

• "[Counsel] testified that he told the applicant that a plea to either of the charges he faced could subject him to deportation."

• "[Counsel] testified that he told the applicant that a plea of guilty ... was not the end of the proceedings because he still had to face the immigration authorities to address deportation consequences."

• "[Counsel] testified that he told the applicant to retain an advocate to represent him before the immigration authorities to address deportation consequences."

• "This Court finds the testimony of [counsel

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