In re Orozco

EX PARTE: CARLOS OROZCO

No. 08-17-00127-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

December 19, 2018

Appeal from 384th District Court of El Paso County, Texas

(TC # 20000D05432-384-1)

OPINION

In 2001, Appellant Carlos Orozco pleaded guilty to possessing less than one ounce of cocaine and in 2005, completed deferred adjudication probation. In 2016, Appellant filed an Article 11.072 application for writ of habeas corpus asserting that his plea of guilty was unknowingly and involuntarily entered. TEX.CODE CRIM.PROC.ANN. § 11.072. The trial court denied the application without conducting a hearing, and he now appeals the trial court's order denying relief. Because Appellant has failed to overcome the presumption that his plea was knowingly and voluntarily entered, and because he has failed to establish facts that would entitle him to relief, we affirm the trial court's ruling.

BACKGROUND

The Plea

On November 29, 1996, the U.S. Immigration and Naturalization Service notified Appellant, a Mexican citizen, that his petition for a Visa had been approved. In November 2000, Appellant was charged with unlawful possession of less than one ounce of cocaine, a state jail felony. TEX.HEALTH&SAFETYCODE ANN. § 481.115(b).

On March 2, 2001, Appellant entered a plea of guilty to the charged offense. At the outset of the plea proceedings, the trial court first asked Appellant whether he spoke English, and Appellant answered, "Yes." With few exceptions hereafter noted, Appellant continued to answer the trial court in English throughout the plea proceedings.

Appellant acknowledged to the trial court that he understood the charge against him as well as his rights to remain silent, to confront the State's witnesses and cross-examine them, to a presumption of innocence and to have the State prove him guilty beyond a reasonable doubt, to call witnesses in his defense and compel their testimony, to a jury trial on the issue of guilt, and the consequences of the State's satisfaction or failure in proving its case to a jury. Appellant further acknowledged that he understood that he had the right to have the jury assess his punishment in the event it found him guilty, and when asked whether had any questions about his rights, Appellant stated that he did not.

Appellant affirmatively answered the trial court's inquiries regarding whether he freely and voluntarily gave up these rights, freely and voluntarily pleaded guilty, and was pleading guilty because he was guilty and for no other reason. The trial court admonished Appellant that if he was not a citizen of the United States, the federal government would remove him from the United States, would exclude him from ever being legally readmitted, and would deny him the right to ever become a naturalized citizen, and Appellant acknowledged that he understood these admonishments.

The trial court informed Appellant that under the terms of the plea agreement, among other provisions, the adjudication of the charge against him would be deferred for three years. The trialcourt asked Appellant whether he knew what an appeal is and whether he would give up his right to appeal if the trial court followed the plea agreement. Appellant responded affirmatively. He also acknowledged that he had examined with defense counsel the trial court's written Notice to Defendant of his Rights, Written Admonishments, Waiver of Rights, Judicial Confession, and Plea Agreement, and had understood and signed the document.

When the trial court asked Appellant whether anyone was forcing or coercing him to plead guilty or threatened him in regard to his plea, Appellant answered, "No." When the trial court asked Appellant whether it was his or his attorney's decision to plead guilty, Appellant did not initially respond. The trial court asked, "Whose decision is it?" and the record shows that defense counsel then asked Appellant, "It's your decision, right?" to which Appellant answered, "Yes." The trial court then asked, "Are you pleading guilty because your lawyer is telling you to plead guilty? Do you understand what I'm saying?" The trial court then addressed Appellant in Spanish, and Appellant responded in Spanish.

Appellant informed the trial court in English that he had been educated in Juarez through "ninth," and when the trial court asked Appellant in English and then in Spanish whether he had ever been treated by a psychiatrist or had ever been declared mentally incompetent, Appellant answered, "No." Appellant also answered in the negative when the trial court inquired whether Appellant had ever been hit on the head or had suffered from blackouts, and whether he was under the influence of alcohol, narcotics, or prescription drugs. Defense counsel acknowledged that he had reviewed the evidence with Appellant, Appellant's plea was supported by the evidence, and Appellant had been able to assist counsel with his defense. Counsel also confirmed that Appellant had no problems communicating with him. The trial court found Appellant competent to enter his plea.

The State declared that if the case had proceeded to trial, El Paso Police Officers would have testified: (1) that they had stopped Appellant on November 21, 2000, for suspicion that the driver of a swaying vehicle with lights off was driving while intoxicated; (2) Appellant displayed signs of intoxication and was placed under arrest for driving while intoxicated; and (3) while inventorying the vehicle, the officers found a folded dollar bill containing a white powdery substance. The white powdery substance tested positive for cocaine. Defense counsel stated, "No objection," when the State offered the signed plea papers and the motion for deferred adjudication in evidence to the trial court.

The trial court asked Appellant whether he understood what the State's prosecutor had said, and Appellant answered that he did. The court then asked, "Is this the way it happened?" and Appellant answered, "Yes." When the trial court asked Appellant whether he was pleading guilty or not guilty, Appellant answered, "Guilty." The trial court found the evidence supported Appellant's plea of guilty and found him guilty of possession of less than one gram of cocaine. Prior to deferring adjudication for three years in accordance with the plea agreement, the trial court asked additional questions of Appellant, all of which he answered in English except when providing the street number of his home, the number of children he had, and the phonetic spelling of one child's name. On December 1, 2005, after receiving evidence that Appellant had satisfactorily completed deferred-adjudication community supervision, the trial court entered an order dismissing the case against Appellant.

Writ of Habeas Corpus

On June 23, 2015, the U.S. Citizenship and Immigration Service (USCIS) notified Appellant that his daughter's petition to adjust his status had been approved and that Appellant, as beneficiary of the petition, was not eligible to file for adjustment of status. The form also providednotice that although the petition had been approved, USCIS and the U.S. Department of Homeland Security reserved the right to verify information submitted in the petition to ensure conformity with applicable laws, rules, regulations, and other authorities, and specified that information obtained during the course of the verification process would be used "to determine whether revocation, rescission, and/or removal proceedings are appropriate."

On September 19, 2016, fifteen years after entering his plea of guilty, Appellant filed an application for writ of habeas corpus. In his application, Appellant asserted in part that his guilty plea was not knowingly and voluntarily entered as a consequence of defense counsel's alleged failure to translate the Article 26.13 immigration admonishments, thereby resulting in constitutional error and affecting his substantial rights. He also contended that he was prejudiced by defense counsel's alleged failure to investigate and discover evidence that "should have caused [defense counsel] to change his recommendation in the plea, or to provide an [immigration-safe] disposition."

Affidavit

In support of his writ application, Appellant appended his affidavit, in which he asserted the following. Appellant stated that he does not read or speak English, and that previously he and defense counsel had only spoken to each other in Spanish. On the date of to his plea proceedings, defense counsel asked Appellant whether he spoke English, and Appellant informed defense counsel that he did not. Appellant also informed defense counsel that he was not a U.S. citizen and inquired of defense counsel whether his "crime" would affect his ability to obtain or "fix [his] papers." Defense counsel advised Appellant not to worry and that everything would be fine.

On the date of his plea proceedings, defense counsel advised Appellant to plead guilty, and Appellant informed counsel that he did not want to plead guilty because the cocaine was not hisand he was not guilty. Defense counsel explained to Appellant the time and effort of proceeding to trial and his risk of being deported if he lost at trial. Defense counsel informed Appellant that he had secured probation, and upon completion of probation, the cocaine offense would be removed from his record, but Appellant's driving-while-intoxicated charge would not. Appellant became scared and pleaded guilty because defense counsel advised him to do so.

Defense counsel did not inform Appellant that he would be deported "for certain" if he pleaded guilty, and Appellant alleged that had he known that he would be deported, he would not have pleaded guilty but would have pursued a jury trial so that, if he was found not guilty, he would not suffer "immigration issues." Appellant asserted that he was willing to risk a longer sentence by proceeding to trial for a chance to be found not guilty and remain in the United States, and urged that he would...