Ex parte Uribe

516 S.W.3d 658

EX PARTE Elida URIBE

NO. 02–16–00372–CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: March 9, 2017

Rehearing Overruled March 30, 2017

Bruce Anton, Sorrels, Udashen & Anton, Brett Ordiway, Dallas, TX, for Appellant.

Catherine Luft, Asst. Crim. Dist. Atty., Denton, TX, for State.

PANEL: LIVINGSTON, C.J.; WALKER AND SUDDERTH, JJ.

OPINION

BONNIE SUDDERTH, JUSTICE

I. Introduction

Appellant Elida Uribe appeals the trial court's denial of her habeas application, arguing that she received ineffective assistance of counsel with regard to the immigration consequences of her guilty plea and that, but for counsel's deficient performance, she would not have pleaded guilty and would have insisted on going to trial. See Tex. Code Crim. Proc. Ann. art. 11.09 (West 2015) ; Padilla v. Kentucky , 559 U.S. 356, 369, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010) ; see also Le v. State , 300 S.W.3d 324, 326–27 (Tex. App.–Houston [14th Dist.] 2009, no pet.) (discussing jurisdiction over habeas application based on "collateral legal consequences" from misdemeanor conviction). We affirm.

II. Background

Lewisville police arrested Uribe, a Mexican citizen, on March 31, 2009, alleging that she had beaten her "sister," Mariana Segura,¹ "with her fists and stabbed her with a knife." The police interviewed Segura in the hospital emergency room, where she reported that Uribe had knocked her to the ground, repeatedly punched her in the face, hit her in the face with a purse, kicked her in the mouth, and cut her forearm with a six-inch steak knife, leaving a one-inch laceration that required stitches. An officer photographed Segura's injuries, which included the laceration and other bumps, bruises, and scratches. Segura gave the officer permission to retrieve the knife from the apartment where the assault occurred. The police also took photographs that depicted the knife and blood on the carpet from the scene of the assault.

After receiving and waiving her Miranda rights, Uribe recounted to the police her version of the encounter, admitting that she had assaulted Segura.² She also admitted that she had grabbed a steak knife from the kitchen but said that Segura was cut when Segura reached for it.³ Uribe was indicted for aggravated assault with a deadly weapon,⁴ a second-degree felony offense with a punishment range of two to twenty years' confinement and up to a $10,000 fine. See Tex. Penal Code Ann. §§ 12.33, 22.02(b) (West 2011).

Uribe pleaded guilty to Class A misdemeanor assault as a lesser-included offense⁵ in exchange for 270 days' confinement in county jail with no fine and no family violence finding.⁶ See id. § 12.21 (West 2011) (stating that an individual adjudged guilty of a Class A misdemeanor shall be punished by a fine not to exceed $4,000, confinement in jail for a term not to exceed one year, or both such fine and confinement). Uribe's plea agreement included the statement, "I understand that if I am not a citizen of the United States of America a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under Federal law."

The trial court signed the judgment of conviction on September 17, 2009. A few months later, the U.S. Department of Homeland Security (DHS) served Uribe with a notice to appear, charging her with removability under 8 U.S.C. § 1182(a)(6)(A)(i).⁷

Seven years later, in 2016, Uribe filed her application for writ of habeas corpus, to which she attached copies of the 2009 indictment and judgment of conviction, an affidavit in which she set out another version of the facts underlying the conviction and raised a self-defense claim,⁸ DHS's notice to appear, her former immigration counsel's affidavit, and her current immigration counsel's affidavit.

Uribe's current immigration counsel averred,

Based on the legal advice of both [Uribe's former criminal defense counsel and her former immigration counsel], Mrs. Uribe–Guerrero accepted a plea offer in her criminal case that resulted in a sentence of 270 days in state custody. At the time, neither her criminal attorney nor her immigration attorney advised Mrs. Uribe–Guerrero that as a result of that plea, she would become ineligible to request cancellation of removal in immigration court.^{[9 ]} Specifically, an individual who is confined to more than 180 days in jail loses their eligibility for this relief.^{[10 ]} As a result of acting on the erroneous legal advice given by both lawyers, Mrs. Elida Uribe's only remaining option is removal.

In his affidavit, her former immigration counsel stated that he did not tell Uribe's former criminal defense attorney

that [8 U.S.C. § 1101(f)(7) ] provided that no person shall be regarded as a person of good moral character who has been confined more than 180 days as a result of a conviction. It was not until [he] received [a] memo from [ICE attorney Judson] Davis ... in August 2010 that [he] realized that Ms. Uribe would have a problem with good moral character due to the fact that the number of days served as a result of the conviction were more than 180 days.

Uribe stated in her affidavit that her former immigration attorney had improperly advised her and her criminal defense attorney and stated, "If I would have known that the plea for misdemeanor assault would have immigration consequences, I would not have accepted the guilty. I would have pushed my criminal attorney to pursue a different direction in my case, including going to trial."

The State attached to its answer to Uribe's application copies of Uribe's plea bargain documents; the original police report pertaining to Uribe's March 31, 2009 arrest, which contained Uribe's oral statements to the police about the events of that evening; photographs of Segura's injuries, the knife, and the bloodstained carpet; Uribe's written statement to the police; Segura's written statement to the police; Uribe's book-in photo; Segura's emergency protective order; and the court settings with plea bargain data. The State also filed proposed findings of fact and conclusions of law, which the trial court adopted.

Among other things, the trial court found the following in its findings of fact:

2. [Uribe] made a judicial confession and signed plea paperwork that she read, understood, and her attorney explained, an admonishment regarding the immigration consequences of her plea.

3. [Uribe] filed an affidavit from July 15, 2016, wherein she claimed that she was the victim of the assault, Mariana Segura hit her first, Ms. Segura threatened [Uribe] with a knife, [Uribe] only retrieved a knife in self-defense, Ms. Segura was never cut by the knife, and police officers did not believe [Uribe]. [Uribe] also claimed that had she been given correct immigration advice she would not have taken a plea deal and would have "pushed her criminal attorney to pursue a different direction in [the] case, including going to trial."

4. [Uribe] is not credible.

5. The police report and Ms. Segura's statements from March 31, 2009, detailed the assault: [Uribe] confronted Ms. Segura; [Uribe] knocked her to the ground; [Uribe] punched her in the face repeatedly; [Uribe] hit Ms. Segura with a purse numerous times; [Uribe] kicked Ms. Segura in the face; the beating caused Ms. Segura to lose consciousness; [Uribe] retrieved a knife from the kitchen; and Ms. Segura was cut by the knife, requiring stitches.

6. Officer Richard Crociata took pictures of Ms. Segura's injuries and those pictures show injuries to Ms. Segura's face, eye, lip, and arm.

7. On March 31, 2009, [Uribe] waived her Miranda rights and gave Officer Crociata and Officer Lee Noble verbal and written statements.

8. On March 31, 2009, [Uribe] told officers:

I beat her ass, I got on top of her and punched her, and couldn't stop myself, I kicked her in the face. I then got up and grabbed a steak knife and wanted to scare her because I know she is terrified of them, and she went to grab it away and got cut.

9. In her March 31, 2009 written statement, [Uribe] admitted she was "fed up" with rumors started by Ms. Segura so [Uribe] walked up to Ms. Segura, punched Ms. Segura "straight on the face," "dropped her on the floor," and continued to punch Ms. Segura in the face and pulled Ms. Segura's hair. [Uribe] further admitted that she grabbed a knife to scare Ms. Segura and Ms. Segura was cut when Ms. Segura tried to push the knife out of [Uribe]'s hand.

10. None of the evidence collected from the night of the assault suggests that Ms. Segura instigated the fight or threatened [Uribe].

The trial court concluded that even if Uribe's counsel was found to be constitutionally deficient in his representation, Uribe had failed to show that there was a reasonable probability that, but for his errors, she would not have pleaded guilty because it would not have been rational under the circumstances when she would have risked a harsher penalty with the same immigration consequences. The trial court further concluded that rejecting the plea bargain would not have been rational because the evidence showed that Uribe had committed aggravated assault with a deadly weapon and that if she had proceeded to trial, "it is likely she would have been found guilty." And it concluded that Uribe's claimed legal and factual defenses in her 2016 affidavit were not credible considering the other evidence, including her signed confession from 2009; that rejecting the plea bargain would not have been rational when Uribe did not state that immigration consequences were her primary concern in 2009 when she was facing up to twenty years in prison; and that Uribe had failed to show that the State would have offered a different plea bargain that would have helped her avoid negative immigration consequences. The trial court further stated that rejecting the plea bargain was not rational because if Uribe had taken the aggravated-assault-with-a-deadly-weapon case to trial, she would not have been eligible for...