Ex Parte Gregorio Romero ( 2011 )

OPINION
No. 04-11-00175-CR
EX PARTE Gregorio ROMERO
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 3427-B
Honorable N. Keith Williams, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: August 3, 2011
REVERSED AND RENDERED
Gregorio Romero pled no contest to aggravated sexual assault of a child and was placed
on deferred adjudication community supervision for ten years. Romero appeals the trial court’s
order denying his application for writ of habeas corpus, asserting: (1) the evidence was
insufficient to support his guilt; (2) the trial court did not admonish him regarding the
immigration consequences of his plea; and (3) trial counsel was ineffective in failing to advise
him of the immigration consequences of his plea and in failing to diligently investigate the facts
of the case. 1 We reverse the trial court’s order and grant habeas corpus relief.
1
The application was filed pursuant to article 11.072 of the Texas Code of Criminal Procedure, which gives this
court jurisdiction over this appeal. See Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008)
(remanding cause to intermediate court of appeals for consideration of merits of appeal of order denying habeas
application filed pursuant to article 11.072).
04-11-00175-CR
SUFFICIENCY OF THE EVIDENCE
In his first issue, Romero complains that the trial court erred in denying his habeas
application because no evidence was presented to prove his guilt. A challenge to the sufficiency
of the evidence to support a felony conviction is not cognizable by writ of habeas corpus. Ex
parte Jessep, 281 S.W.3d 675, 679 (Tex. App.—Amarillo 2009, pet. ref’d); Ex parte Prince, No.
05-05-00132-CR, 2005 WL 615729, at *1 (Tex. App.—Dallas Mar. 17, 2005, no pet.) (not
designated for publication); see also Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App.
2004). Even if such a claim were cognizable, Romero signed a stipulation of evidence in which
he judicially confessed that all facts, statements, and allegations contained in the indictment were
true and correct and that he committed the offense as charged. Romero’s judicial confession
standing alone is sufficient to sustain a conviction upon his plea. Dinnery v. State, 592 S.W.2d
343, 353 (Tex. Crim. App. 1979); Tijerina v. State, 264 S.W.3d 320, 324 (Tex. App.—San
Antonio 2008, pet. ref’d). Romero’s first issue is overruled.
IMMIGRATION ADMONISHMENT
In his second issue, Romero contends the trial court erred in denying his habeas
application because the record shows that the trial court did not properly admonish him with
regard to the immigration consequences of his plea. Article 26.13 of the Texas Code of Criminal
Procedure requires that prior to accepting a guilty plea, a trial court must admonish the defendant
of the consequences of his plea. TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (West 2010). A trial
court may make the admonishment either orally or in writing. Id. at art. 26.13(d). In this case,
the record contains the following written admonishment: “If I am a non-citizen of the United
States, I understand that a plea of guilty or nolo contendere may result in my deportation, the
exclusion from admission to this country, or denial of naturalization under federal law.” The
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written admonishment repeats verbatim the admonishment required by article 26.13(a)(4). See
id. at art. 26.13(a)(4). Accordingly, Romero’s second issue is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his final issue, Romero contends trial counsel was ineffective in failing to advise him
regarding the immigration consequences of his plea and in failing to conduct a diligent
investigation. To obtain habeas corpus relief for ineffective assistance of counsel under the
Strickland v. Washington 2 standards, Romero was required to show that counsel’s performance
was deficient and that a reasonable probability exists that the outcome would have been different
but for counsel’s deficient performance. Ex parte Amezquita, 223 S.W.3d 363, 366 (Tex. Crim.
App. 2006). An appellate court reviewing a trial court’s ruling on a habeas claim must review
the record evidence in the light most favorable to the trial court’s ruling and must uphold that
ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.
2006). Almost total deference is given to a trial court’s factual findings in habeas proceedings,
especially when those findings are based upon credibility and demeanor. Ex parte Amezquita,
223 S.W.3d at 367. “Although reviewing courts should also grant deference to ‘implicit factual
findings’ that support the trial court’s ultimate ruling, they cannot do so if they are unable to
determine from the record what the trial court’s implied factual findings are.” Ex parte Peterson,
117 S.W.3d 804, 819 (Tex. Crim. App. 2003).
With regard to counsel’s advice regarding the immigration consequences of Romero’s
plea, the United States Supreme Court has held, “counsel must inform her client whether his plea
carries a risk of deportation.” Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). The nature of
the advice to be given depends on the certainty of the applicable immigration law. Id. at 1483.
“When the law is not succinct and straightforward . . ., a criminal defense attorney need do no
2
466 U.S. 668 (1984).
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more than advise a noncitizen client that pending criminal charges may carry a risk of adverse
immigration consequences. But when the deportation consequence is truly clear, . . ., the duty to
give correct advice is equally clear.” Id. “It is quintessentially the duty of counsel to provide her
client with available advice about an issue like deportation and the failure to do so ‘clearly
satisfies the first prong of the Strickland analysis.’” Id. at 1484 (quoting Hill v. Lockhart, 474
U.S. 52, 62 (1985) (White, J., concurring in judgment)).
In the instant case, Romero was charged with aggravated sexual assault of a child. Under
the federal immigration statutes, the term “aggravated felony” includes the rape or sexual abuse
of a minor. 8 U.S.C. § 1101(a)(43)(A). Further, the term “conviction,” with respect to an alien,
includes one who has pled nolo contendere and the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty. 3 8 U.S.C. § 1101(a)(48)(A). Finally, federal
immigration law provides that “[a]ny alien . . . in the United States shall, upon the order of the
Attorney General, be deported if the alien is within one or more of the following classes of
deportable aliens.” 8 U.S.C. § 1227(a). One of the classes listed is “[a]ny alien who is convicted
of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). Thus, the
deportation consequences resulting from a conviction of aggravated sexual assault of a child are
“truly clear.” Padilla, 130 S. Ct. at 1483. Under the applicable statutes, Romero’s conviction
made him not just at risk for possible deportation but automatically deportable. Cf. Ex parte
Rodriguez, No. 04-10-00721-CR, 2011 WL 1885172, at *2 (Tex. App.—San Antonio May 18,
2011, no pet.) (rejecting argument that plea resulted in an aggravated felony conviction which is
clearly a removable offense because appellant pled to a misdemeanor).
3
Deferred adjudication is a conviction for purposes of the federal immigration laws. See Moosa v. I.N.S., 171 F.3d
994, 1006 (5th Cir. 1999).
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The State seeks to rely on the general immigration admonishment that was given by the
trial court and trial counsel’s affidavit in which he stated that he reviewed the admonitions with
Romero, “including possible consequences relating to citizenship.” Based on trial counsel’s
affidavit, the trial court could have found that trial counsel reviewed the written immigration
admonition with Romero including the “possible” immigration consequences; however,
reviewing the written admonition did not satisfy trial counsel’s duty under these circumstances.
Because the deportation consequence was truly clear, trial counsel had a duty to inform Romero
of the specific consequences of his plea. See Ex parte Tanklevskaya, No. 01-10-00627-CR, 2011
WL 2132722, at *8 (Tex. App.—Houston [1st Dist.] May 26, 2011, no pet. h.). In his affidavit,
Romero stated that trial counsel never advised him that he would be deported. Because trial
counsel only informed Romero about “possible” immigration consequences where the law made
deportation a virtual certainty, counsel’s performance was deficient. See id.
To establish prejudice in the context of an involuntary plea resulting from ineffective
assistance of counsel, the applicant must demonstrate that there is a reasonable probability that,
but for plea counsel’s deficient performance, the applicant would not have pleaded guilty, but
would have instead insisted on going to trial. Id., at *9. In his affidavit, Romero stated that he
was a lawful permanent resident of the United States and did not know the conviction would
affect his status. As a result of his conviction, Romero was detained by immigration officials in
2000, and he was deported in 2002. In his affidavit, Romero stated, “If I had known that
pleading guilty to this charge would have made me an aggravated felon for immigration
purposes, I never would have had [sic] pled guilty. I would have taken my case to a jury.”
Accordingly, Romero met his burden of demonstrating that, but for trial counsel’s failure to
advise him regarding the specific consequences of his plea, he would not have entered a plea but
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would have gone to trial. See id. Therefore, Romero met his burden of proving trial counsel
rendered ineffective assistance of counsel, and the trial court abused its discretion in denying
Romero’s habeas application on that basis.
CONCLUSION
The trial court’s order is reversed and habeas corpus relief is granted.
Karen Angelini, Justice
PUBLISH
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