Ex Parte: Koffi Semegnon Doke ( 2021 )

AFFIRMED and Opinion Filed September 7, 2021
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00826-CR
EX PARTE KOFFI SEMEGNON DOKE
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-80876-2013
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Carlyle
Koffi Semegnon Doke appeals the trial court’s order denying relief on his
post-conviction application for writ of habeas corpus. See TEX. CODE CRIM. PROC.
art. 11.072. Appellant Doke contends the trial court erred by applying the wrong
legal standards in evaluating his claim that his guilty plea was entered involuntarily
due to ineffective assistance of counsel. We affirm.
BACKGROUND
Appellant is a citizen of Togo admitted into the United States as a lawful
permanent resident in 2008. On November 18, 2012, appellant used a debit card to
make purchases without the cardholder’s consent at Wal-Mart stores in Plano and
Allen, including one where he worked, and used his employee discount card. Store
employees identified appellant on security video as the person making the charges.
When questioned by police, appellant admitted making the charge, but
explained he had permission from a friend he knew only as Talon. According to
appellant, Talon asked him for $200 and offered him the debit card to use in
exchange. Talon told him the debit card belonged to Talon’s girlfriend. Because he
is illiterate, appellant said he was unable to read the name on the card. Appellant
took the card because Talon was a trusted friend. After the police became involved,
Talon refused to take any of appellant’s telephone calls.
In 2013, appellant entered a negotiated guilty plea to the state jail felony
offense of debit card abuse, and the trial court followed the parties’ agreement,
placing him on deferred adjudication community supervision for three years and
imposing a $250 fine. See TEX. PENAL CODE § 32.31. Appellant waived his right to
appeal as part of the agreement. The United States government later initiated
removal proceedings against appellant.
Appellant then filed this application for writ of habeas corpus. See TEX. CODE
CRIM. PROC. art. 11.072. To support his claim that he received ineffective assistance
of counsel, appellant filed a copy of the reporter’s record from the plea hearing, his
affidavit, Adamou Nambouri’s affidavit, affidavits from two other friends,
documentation of the removal proceedings, and police reports describing the
offense. The trial court conducted a hearing on appellant’s writ application.
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Appellant did not testify nor did he call any witnesses. The State called counsel to
testify. After hearing counsel’s testimony and taking the matter under advisement,
the trial court denied relief and entered findings of fact and conclusions of law. See
TEX. CODE CRIM. PROC. art. 11.072, § 7(a).
STANDARD OF REVIEW
In reviewing the trial court’s ruling on a habeas claim, we review the record
in the light most favorable to the trial court’s ruling and must uphold the trial court’s
ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006). A trial court abuses its discretion if it acts without reference to
any guiding rules or principles. State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim.
App. 2016).
Applicants for post-conviction habeas corpus relief must prove their claims
by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim.
App. 2016). The trial court is the sole finder of fact, and “we afford almost total
deference to a trial court’s factual findings when they are supported by the record,
especially when those findings are based upon credibility and demeanor.” Id. at 42.
We defer to the trial court’s fact findings supported by the record even when such
findings are based on affidavits rather than live testimony. State v. Guerrero, 400
S.W.3d 576, 583 (Tex. Crim. App. 2013). If, however, the trial court’s
determinations are questions of law, or mixed questions of law and fact that do not
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turn on an evaluation of witnesses’ credibility and demeanor, then we review them
de novo. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).
ANALYSIS
To prevail on a claim that he entered an involuntary guilty plea due to
ineffective assistance of counsel, appellant must satisfy a two-pronged standard
showing (1) counsel rendered deficient performance and (2) appellant suffered
prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687–88, 694
(1984); Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Torres, 483 S.W.3d at 43.
The first prong requires appellant to show counsel’s performance was
deficient in that it failed to meet an objective standard of reasonableness under
prevailing professional norms. Ex parte Bowman, 533 S.W.3d 337, 349–50 (Tex.
Crim. App. 2017); see also Strickland, 466 U.S. at 687–88. In evaluating counsel’s
performance under the first prong, we assess the reasonableness of counsel’s
performance under the circumstances of the particular case viewed at the time
counsel rendered assistance. Bowman, 533 S.W.3d at 350. We presume counsel
“rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. at 350 (quoting Strickland, 466 U.S. at 690).
Counsel’s deficient performance must be affirmatively demonstrated on the record
and not require retrospective speculation. Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011). We judge the totality of counsel’s representation rather than
focusing narrowly on isolated acts or omissions, and evaluate counsel’s performance
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from counsel’s viewpoint at the time of representation without the benefit of
hindsight. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
Appellant first argues that trial counsel rendered ineffective assistance by
failing to advise him about the immigration consequences of his plea and by
allowing him to plead guilty without understanding the consequences such a plea
would have on his immigration status. In his opening brief, appellant complains that
trial counsel should have reset the plea hearing to ensure he understood the
consequences of the plea. In the alternative, appellant argues counsel was ineffective
for not securing an interpreter for the hearing. In his reply brief, appellant complains
that counsel’s immigration advice was inconsistent.1
The Sixth Amendment right to effective assistance of counsel requires counsel
to correctly advise non-citizen clients about potential immigration law
consequences, including deportation, exclusion from admission, and denial of
naturalization. Padilla v. Kentucky, 559 U.S. 356, 366–67 (2010). When, as here,2 a
criminal defendant has committed an offense that would trigger mandatory
1
We do not consider new issues raised in reply briefs, but we may consider arguments and authorities
raised in a reply brief if they are related to the arguments in the original brief. See Chambers v. State, 580
S.W.3d 149, 161 (Tex. Crim. App. 2019). Appellant’s argument about the consistency of counsel’s advice
is part of his overarching ineffectiveness issue and is apparent on the face of the record. Because we favor
merits determinations when possible, we consider it to be sufficiently related to the original argument.
2
Credit card abuse is a crime involving moral turpitude. See Balogun v. Ashcroft, 270 F.3d 274, 278
(5th Cir. 2001) (convictions for illegal possession of credit cards, fraudulent use of credit cards, and forgery
were crimes involving moral turpitude); 8 U.S.C. § 1227(a)(2)(A)(i); see also Ex parte Pei Wen Chen, No.
01-13-01043-CR, 2014 WL 3697932, at *3 (Tex. App.—Houston [1st Dist.] July 24, 2014, no pet.) (mem.
op., not designated for publication). Placement on deferred adjudication in Texas is considered a conviction
for purposes of federal immigration law. See Moosa v. I.N.S., 171 F.3d 994, 1005–06 (5th Cir. 1999);
Guerrero, 400 S.W.3d at 588 & n.52; see also 8 U.S.C. § 1101(a)(48)(A).
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deportation upon conviction, counsel must correctly advise his client that the client
faces mandatory deportation upon conviction or even placement on deferred
adjudication. Padilla, 559 U.S. at 369; Torres, 483 S.W.3d at 44–45. It is not
sufficient for counsel to advise appellant that he might be deported and recommend
that he seek advice from an immigration lawyer. Torres, 483 S.W.3d at 45. If it is
clear that being placed on deferred adjudication for the charged offense will result
in removal proceedings, counsel’s advice regarding those immigration consequences
must be equally clear. See Padilla, 559 U.S. at 369.
Appellant makes much of two portions of the plea colloquy to support his
claim that he did not understand the plea proceeding, as follows:
[Trial Court]: Have you ever been confined to a mental
institution? A hospital that would be designed to
treat you for any mental health infirmities?
[Appellant]: Yes, sir.
[Trial Court]: Have you been to a mental health hospital before?
[Counsel]: Have you ever been diagnosed with any type of
mental illness?
[Appellant]: No, no.
[Trial Court]: Have you ever been incompetent, found
incompetent by any court? Has any other judge ever
said you’re not fit to handle your own business?
[Appellant]: No.
[Trial Court]: Are you a citizen of the United States?
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[Appellant]: Yes, a green card.
[Trial Court]: Okay, a green card means you have permission to
live here. It does not mean you are a citizen. So
you’re currently here legally on a green card,
correct?
[Appellant]: Yes, sir.
[Trial Court]: But you are not a citizen of the United States at this
point, correct?
[Appellant]: Yes, sir.
[Trial Court]: You understand that if you are not a citizen entering
today’s plea could result in deportation, exclude you
from admission to this country or denial of
naturalization under federal law?
[Appellant]: Yes, sir.
[Trial Court]: Knowing that do you still wish to proceed in your
plea at this time?
[Defendant]: Yes, sir.
[Trial Court]: To the offense of debit card abuse as alleged in the
indictment how do you plead, guilty, not guilty or
no contest?
[Appellant]: Guilty.
[Trial Court]: Are you pleading guilty because you are guilty and
for no other reason?
[Appellant]: Yes.
[Trial Court]: Has anybody promised you anything or put any
pressure on you in order to get you to enter your plea
in this case? Other than the terms of the plea
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agreement, has anybody promised you anything in
order to get you to do this plea in this case?
[Appellant]: No.
[Trial Court]: Has anybody threatened you in any way to get you
to do the plea in this case?
[Appellant]: No.
[Trial Court]: Are you pleading guilty freely and voluntarily? This
is your decision.
[Appellant]: It’s my decision, yeah.
[Trial Court]: Nobody is making it for you and forcing you to do
this?
[Appellant]: No.
During the habeas hearing, counsel testified that it was not uncommon for
clients to be nervous or not understand a question and to deliver the wrong answer
to a “yes or no” question. Counsel explained that he was not concerned when
appellant answered “yes” to the trial court’s question about whether he was a United
States citizen because some people believe they are a United States citizen if they
have a green card or some other status. We find no abuse of discretion.
Appellant claims his answer to the trial court’s question, whether he was a
citizen, stating, “Yes, a green card,” demonstrates he did not understand he was not
a citizen and therefore, he could not have been properly advised of the immigration
consequences. The analysis appellant would have us perform would transform the
citizenship question into an immigration law test for guilty pleading criminal
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defendants with no room for error. It is not that. To the contrary, the question, though
unnecessary because code of criminal procedure article 26.13(a)(4) requires the
admonishment regardless of the defendant’s citizenship status, is designed to give
the trial court the information it feels it needs to properly advise the defendant.3 And
in any event, appellant’s answer gave the indication he understood his status was as
a green card holder. His answers to the court’s further clarifying questions
demonstrated appellant understood he was not a citizen and that he held a green card.
Further, we cannot connect the chain of inferences appellant requests to
conclude counsel provided ineffective assistance when he and appellant spoke
English in each meeting they had. We cannot conclude appellant required an
interpreter when the only indication he gave was that he understood the trial court’s
questions. He confirmed he did, he answered appropriately, and in the two instances
when he gave answers that led to clarifying questions, his answers comported with
the apparent truth of the matter in both instances. When asked whose decision it was
to plead guilty, appellant crafted the phrase, “It’s my decision, yeah” in response.
We do not find ineffective assistance of counsel based on appellant’s claimed lack
of understanding.
3
The best practice for a trial court is simply to omit the question and give the immigration consequences
advice to every defendant. In describing practices judges should avoid post-Padilla, the Immigrant Defense
Project suggests to judges: “Do not ask defendants or defense counsel about the defendant’s immigration
or citizenship status. Such an inquiry is neither necessary nor advisable at the arraignment or plea stage of
a criminal proceeding, and may raise concerns about potential constitutional, statutory[,] and ethical
violations.” Judicial Obligations After Padilla v. Kentucky, at 32, available at
https://immigrantdefenseproject.org/wp-content/uploads/2011/05/postpadillaFINALnew.pdf (Immigrant
Defense Project and New York University School of Law Immigrant Rights Clinic, October 2011).
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In a similar vein, appellant claims that he could not understand the plea
proceedings without an interpreter and that it is “unclear whether Mr. Doke
understood anything during the plea at all.” If a defendant does not speak the English
language, the defendant has both a constitutional and a statutory right to an
interpreter. See Baltierra v. State, 586 S.W.2d 553, 559 (Tex. Crim. App. 1979) (op.
on reh’g); Joung Youn Kim v. State, 331 S.W.3d 156, 162 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d); TEX. CODE CRIM. PROC. art. 38.30(a). Failure to request
an interpreter when one is necessary for the defendant to understand the proceedings
constitutes ineffective assistance of counsel. See Ex parte Cockrell, 424 S.W.3d 543,
543 (Tex. Crim. App. 2014).
As noted, counsel testified he had no trouble communicating with appellant
in English and that they always spoke in English to one another. Counsel recalled
appellant had brought someone with him to their initial meeting and that appellant
speaks with an accent, but counsel could not remember if the friend translated
anything. Appellant and Nambouri said Nambouri was at the initial meeting to
translate because appellant didn’t understand English very well at the time. Counsel
recalled someone being at the first meeting but did not recall the man acting as an
interpreter. Counsel testified he met with appellant three times and said appellant did
not bring anyone to their subsequent meetings. Counsel said it would have been easy
to procure an interpreter at no cost but he did not because “[t]here was never an issue
of he and I communicating in the English language.” Counsel testified appellant
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never said anything to him about not being able to read English and that he first
learned appellant was illiterate when he reviewed the writ application. Counsel
opined that appellant understood the immigration consequences of the plea.
Appellant said counsel just told him to answer yes to every question the judge
asked during the plea colloquy, though counsel testified he did not tell appellant that
and that he tells clients to listen to the trial court’s questions to ensure they
understand everything, that they actually want to move forward and resolve the case,
and that they understand the immigration issues. Only if the client still wants to move
forward will counsel proceed with the plea hearing.
The trial court found counsel’s testimony credible, appellant’s and
Nambouri’s affidavits not credible, and appellant’s other two friends’ affidavits,
even if true in relaying that he was illiterate and would never steal, not dispositive
of any issue because appellant had not shown his inability to read and write affected
his ability to understand the plea proceedings and the immigration consequences of
the plea. Citing counsel’s testimony, the trial court found counsel had no issues
communicating with appellant and no reason to request an interpreter for the plea
hearing. The trial court found that counsel had elicited from appellant that appellant
spoke French as his native language and was from Togo.4 The trial court found
4
At the conclusion of the plea hearing, counsel and appellant engaged in the following exchange:
[Counsel]: Your Honor, just for clarification, Mr. Doke, your—you’re not a native
English speaker; is that correct?
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counsel asked appellant if he understood “each and every word” and the questions
the trial court had asked and appellant replied that he did. The trial court found
appellant had (1) not provided credible evidence that he failed to understand the
questions asked during the plea hearing and (2) failed to prove by a preponderance
of the evidence that counsel deficiently performed in coming to his professional
opinion that an interpreter was not needed for the plea hearing.
We conclude the record supports the trial court’s findings that appellant
understood the proceedings and did not require an interpreter, and we can discern no
abuse of discretion. See Torres, 483 S.W.3d at 42 (requiring appellate court to defer
to trial court findings when supported by the record); see also Hernandez v. State,
986 S.W.2d 817, 822 (Tex. App.—Austin 1999, pet. ref’d) (German-speaking
defendant did not establish guilty plea was involuntary for inability to understand
proceedings where record showed she spoke some English, trial counsel testified he
believed defendant understood what he was saying during extensive conversation on
date of plea, and record showed only one question during plea proceeding defendant
did not understand and required an explanation of before continuing); Cantu v. State,
716 S.W.2d 688, 690 (Tex. App.—Corpus Christi 1988, no pet.) (fact that defendant
[Appellant]: Yes.
[Counsel]: You’re originally from Togo?
[Appellant]: Togo.
[Counsel]: And you speak French?
[Appellant]: Yes.
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is more fluent in language other than English and misunderstood question but was
able to answer in English after the question was explained does not establish need
for interpreter).
Appellant also claims counsel inconsistently advised him as to the
immigration consequences of conviction. He highlights counsel’s hearing testimony,
where counsel, responding to a question about what he said at his very first meeting
with appellant, testified he told appellant he needed to consult an immigration
attorney because he “could possibly be subject to deportation or denial of residency.”
Counsel testified his practice was to advise clients with potential immigration
consequences like appellant’s—and that he advised appellant—it was not a matter
of “if” but “when” he would be deported.
According to appellant and Nambouri, counsel had told him not to worry, that
he had handled many cases like his, and that all appellant had to do was say “yes” to
each question the trial court asked him. Appellant recalled that counsel told him the
offense was minor and he could expunge his record after pleading guilty, and that
counsel did not mention any other consequences.
The record shows, and the trial court found, that appellant told counsel he had
a green card and that “Counsel told [appellant] that he would be deported, and that
it was his policy to tell his clients that it was a matter of when, not if, he would be
deported.” After reciting in its findings its own plea hearing admonitions to
appellant, the trial court concluded (1) the record did not support appellant’s claim
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that he did not understand the immigration consequences of his plea, (2) counsel
explained the immigration consequences of the plea to him, and (3) appellant had
failed to prove by a preponderance of the evidence that counsel’s advice was
deficient.
We are aware of Padilla’s strict terms. See Padilla, 559 U.S. at 369; Torres,
483 S.W.3d at 45 (counsel deficiently performed by advising client facing
mandatory deportation that he might possibly be deported and suggesting he seek
advice from immigration counsel). But we cannot conclude a lawyer is ineffective
when the evidence of shifting advice comes from an initial client meeting where the
lawyer says a client “could possibly” be subject to deportation, denial of residency,
or removal from the United States, and the lawyer later specifically and repeatedly
tells the client in no uncertain terms that he will be subject to those consequences
even if the judge gives the client deferred adjudication. This is correct advice that is
as clear as it is that federal law imposes removal on a green card holder placed on
deferred adjudication for Texas state law credit card abuse. See Padilla, 559 U.S. at
369.
Moreover, there was conflicting record evidence regarding appellant’s claim
that counsel minimized the consequences of conviction, failed to advise him of the
immigration consequences, and failed to understand the plea proceedings. Thus, we
conclude the trial court did not abuse its discretion by not finding deficient
performance. See id.; Rios v. State, 377 S.W.3d 131, 138 (Tex. App.—Houston [1st
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Dist.] 2012, pet. ref’d) (no abuse of discretion when trial court makes decision based
on conflicting evidence); see also Aranda v. State, 736 S.W.2d 702, 705 (Tex. Crim.
App. 1987) (en banc) (same).
* * *
Because we conclude the trial court did not abuse its discretion in finding no
deficient performance, we do not consider prejudice. We affirm the trial court’s
order denying relief on appellant’s post-conviction application for writ of habeas
corpus.
/Cory L. Carlyle//
CORY L. CARLYLE
JUSTICE
200826f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE KOFFI SEMEGNON On Appeal from the 366th Judicial
DOKE District Court, Collin County, Texas
Trial Court Cause No. 366-80876-
No. 05-20-00826-CR 2013.
Opinion delivered by Justice Carlyle.
Justices Myers and Osborne
participating.
Based on the Court’s opinion of this date, the order of the trial court denying
relief on appellant’s application for writ of habeas corpus is AFFIRMED.
Judgment entered this 7th day of September, 2021.
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