Opinion
No. 07-17-00126-CR
11-13-2017
EX PARTE RAMIRO HERNANDEZ AGUILAR, APPELLANT
On Appeal from the 108th District Court Potter County, Texas
Trial Court No. 034375-01-E , Honorable Richard Dambold, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Ramiro Hernandez Aguilar, filed an Application for Writ of Habeas Corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure. The application alleged that appellant's 1995 guilty plea for possession of a controlled substance was involuntary because it was made without an attorney advising appellant of the possible immigration consequences of his plea. Appellant appeals from the trial court's order denying his application. Because we conclude that the trial court did not abuse its discretion, we affirm.
Background
In April of 1995, pursuant to a plea agreement, appellant entered a plea of guilty to the offense of possession of a controlled substance, a second degree felony. The trial court deferred an adjudication of guilt and placed appellant on probation for a period of two years. In April of 1997, appellant was successfully discharged from probation.
The court reporter at the time of the plea signed a declaration stating that the record for the April 28, 1995, hearing has been destroyed. The court reporter stated that such records are destroyed after 15 years.
Roughly 20 years later, in February of 2017, appellant filed an application for writ of habeas corpus. Appellant, who is not a United States citizen, claimed that his plea was involuntary and marred by ineffective assistance of counsel because he was not advised of the potential immigration consequences of his guilty plea. At the hearing on appellant's application for writ of habeas corpus, appellant testified that in 1995, he was in the United States legally on an agricultural permit and that he informed his attorney that he was not a citizen. Appellant further testified that he told his attorney he was in the process of attaining permanent status. According to appellant, his attorney did not tell him that his guilty plea could have an adverse effect on his immigration status; rather, he told him the plea would have "no consequences." Appellant testified that if his attorney had told him of possible immigration consequences, he would have "insisted on going to court with a jury."
At the habeas hearing, the court took judicial notice that appellant's trial counsel, Mr. Phil Jordan, is now deceased.
At the time of his plea in April of 1995, appellant received written admonishments from the trial court advising him, "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 your deportation, your exclusion from admission to the United States of America, or the denial of naturalization under federal law." Appellant signed the admonishment form acknowledging that he understood the admonishments. Appellant's trial counsel also signed the statement on admonishments, affirming that he had "counseled and advised" appellant regarding the nature and consequences of the proceedings.
Following the hearing on appellant's application for writ of habeas corpus, the trial court denied the application. The trial court entered findings of fact and conclusions of law. The court's findings of fact included findings that appellant and his trial counsel discussed and signed written plea admonishments, that appellant was admonished that his plea "may result in [his] deportation, [his] exclusion from admission to the United States of America, or the denial of naturalization under federal law," and that the performance of appellant's trial counsel was not deficient.
This appeal followed.
Standard of Review
Generally, we review a trial court's decision on an application for writ of habeas under an abuse of discretion standard. Ex parte Jessep, 281 S.W.3d 675, 678 (Tex. App.—Amarillo 2009, pet. ref'd). A trial court abuses its discretion if its decision lies outside the zone of reasonable disagreement. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd).
The applicant for a writ of habeas corpus has the burden of proving his allegations by a preponderance of the evidence. Id. In reviewing the trial court's ruling on a habeas corpus application, we must review the record evidence in the light most favorable to the ruling, and we must uphold that ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We decide whether a trial court abused its discretion by determining whether the court acted arbitrarily or unreasonably, that is, without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993) (en banc). The judge of the habeas court is the fact finder in habeas corpus proceedings and we afford the utmost deference to the habeas judge's determination of the facts that are supported by the record. Ex parte Colson, No. 07-16-00447-CR, 2017 Tex. App. LEXIS 9240, at *4 (Tex. App.—Amarillo Sept. 29, 2017, no pet. h.) (mem. op., not designated for publication).
Law and Analysis
The Sixth Amendment to the U.S. Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. The proper standard for attorney performance is "reasonably effective" assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's advice can provide assistance so ineffective that it renders a guilty plea involuntary. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). A guilty plea is not knowing or voluntary if made as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).
To demonstrate his plea was involuntary because of ineffective assistance, appellant must prove that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) this deficient performance prejudiced him by causing him to give up his right to a trial. Strickland, 466 U.S. at 687; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Under the first prong of the test, appellant must overcome a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. The reasonableness of counsel's performance is judged under prevailing professional norms. Id. at 688. This court's review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Id. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
In his first issue, appellant asserts that his trial attorney's assistance was deficient because he did not advise appellant of possible future adverse immigration consequences of his plea. Appellant relies on the U.S. Supreme Court's analysis in Padilla v. Kentucky to support his position. In Padilla, the Supreme Court held that, for purposes of the Sixth Amendment right to effective assistance of counsel, "counsel must inform her client whether his plea carries a risk of deportation." Padilla v. Kentucky, 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
The Padilla decision was issued in 2010. Since then, both the United States Supreme Court and the Texas Court of Criminal Appeals have determined that the rule announced in Padilla does not apply retroactively. See Chaidez v. United States, 568 U.S. 342, 344, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Because the disposition of appellant's case was final in 1997, pre-Padilla law applies. See Chaidez, 568 U.S. at 344, 357; Ex parte De Los Reyes, 392 S.W.3d at 679.
Conceding that Padilla is not retroactive in its application, appellant argues that Padilla nonetheless demonstrates that his trial counsel failed to "follow prevailing professional norms," rendering his assistance ineffective. However, prior to Padilla, the law was well settled in Texas that an attorney's failure to inform his client of his plea's collateral consequence of deportation did not rise to the level of constitutionally ineffective assistance of counsel. Ex parte Morrow, 952 S.W.2d at 536 ("while the Sixth Amendment assures an accused of effective assistance of counsel in criminal prosecutions, this assurance does not extend to 'collateral' aspects of the prosecution"); see State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex. Crim. App. 1999) ("That a guilty plea may result in deportation is generally considered a collateral consequence."); see also State v. Guerrero, 400 S.W.3d 576, 580, 588 (Tex. Crim. App. 2013) (explaining that defendant who had 1998 deferred adjudication misdemeanor judgment was not entitled to habeas corpus relief based on failure of either attorney or trial judge to warn him of collateral deportation consequences). Therefore, appellant has not shown that his attorney was operating below the prevailing professional norms in 1995.
Moreover, the record reflects that appellant and his trial attorney received written admonishments about possible immigration consequences of his guilty plea, which they both acknowledged with their signatures. The trial court determined in its findings of fact that appellant and his trial counsel discussed and signed the written plea admonishments and that appellant was admonished that his plea could result in deportation, exclusion from admission to the United States, or the denial of naturalization. We conclude that the record supports these findings.
Although appellant testified that his attorney told him there would be "no consequences" from his guilty plea, this testimony conflicts with the written admonishments signed by appellant and his attorney at the time of his plea. The trial court could have resolved the conflicting evidence to conclude that appellant's testimony was not credible that his attorney told him there would be "no consequences" from his guilty plea. Appellant's uncorroborated testimony that trial counsel failed to correctly advise him is insufficient to show deficient performance. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd).
Because he has not met his burden to establish deficient performance, we do not reach the question of whether appellant has shown he was prejudiced. See Strickland, 466 U.S. at 697.
Conclusion
We conclude that the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus. The order denying that application is therefore affirmed.
Judy C. Parker
Justice Do not publish.