Ex Parte Isabel Rodriguez , 2012 Tex. App. LEXIS 3207 ( 2012 )

OPINION
Nos. 04-11-00038-CR, 04-11-00039-CR
EX PARTE Isabel RODRIGUEZ
From the County Court at Law No. 8, Bexar County, Texas
Trial Court No. 2453
Honorable Karen Crouch, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: April 25, 2012
AFFIRMED
Appellant Isabel Rodriguez Campos pleaded nolo contendere to two misdemeanors in
1997. In late 2010, she applied for writs of habeas corpus to withdraw her pleas. She asserted
that she received ineffective assistance of counsel in light of Padilla v. Kentucky, 130 S. Ct. 1473
(2010). Specifically, Rodriguez complained that her plea counsel “failed to properly inform her
on the certain and automatic immigration consequences of her guilty pleas.” In her sole issue on
appeal, Rodriguez argues the trial court erred when it denied her applications. We affirm the
trial court’s order.
04-11-00038-CR & 04-11-00039-CR
BACKGROUND
In 1997, Rodriguez was a lawful permanent resident of the United States when she was
arrested for two separate misdemeanors: theft by check and prostitution. The theft by check
occurred in 1995 and the prostitution occurred in early 1997. Rodriguez was represented in both
pleas by the same court-appointed counsel. Before Rodriguez pleaded, she signed written
admonitions and the trial court orally admonished her that her pleas could adversely affect her
immigration status. She pleaded nolo contendere to both charges and the court accepted her
pleas.
On November 10, 2010, Rodriguez filed applications for writs of habeas corpus,
supported by affidavits, and motions to withdraw her pleas. She asserted that (1) her plea
counsel failed to warn her that she would be deported if she pleaded guilty to two misdemeanors,
(2) his advice was constitutionally deficient, (3) she was prejudiced, and thus (4) her pleas were
not knowing and voluntary. At the hearing on the applications for writs of habeas corpus no
testimony or additional evidence was presented. In its December 16, 2010 order, the trial court
found, inter alia, that (1) Rodriguez signed written admonitions and voluntarily waived her right
to trial and (2) she understood her pleas could result in her deportation. It denied her
applications; Rodriguez appeals the trial court’s order.
STANDARD OF REVIEW
We review the trial court’s denial of a habeas corpus application for an abuse of
discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). An applicant who
asserts that her plea was not knowing and voluntary must prove her claim by a preponderance of
the evidence. Id. We review “the record evidence in the light most favorable to the trial court’s
ruling and [we] must uphold that ruling absent an abuse of discretion.” Id. We give almost total
-2-
04-11-00038-CR & 04-11-00039-CR
deference to the trial court’s findings that are “‘based upon credibility and demeanor.’” Ex parte
Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d
46, 50 (Tex. Crim. App. 2004)). We also defer to the trial court’s findings of historical facts it
determines from conflicting affidavits. Manzi v. State, 88 S.W.3d 240, 243–44 (Tex. Crim. App.
2002) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985)).
RELEVANT IMMIGRATION LAWS
Padilla v. Kentucky addressed the requirements for effective assistance of counsel for a
noncitizen defendant who enters a plea to a criminal charge if her deportation consequence is
“truly clear.” See Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010). In Padilla, the defendant
was a lawful permanent resident (LPR) of the United States for over forty years when he pleaded
guilty to transporting a large amount of marijuana. Id. at 1477. Before he pleaded guilty, his
plea counsel told Padilla “he did not have to worry about immigration status since he had been in
the country so long.” Id. at 1478 (internal quotation marks omitted). Padilla relied on his plea
counsel’s affirmative misadvice and pleaded guilty. Id. at 1478, 1483. But the immigration
statute’s terms applicable to Padilla’s offense were succinct, clear, and explicit: Padilla was
deportable. Id. at 1483. Further, he was not eligible for discretionary relief. See id. at 1480.
Thus, the outcome of his removal proceeding was not in question: he was deportable, he was not
eligible for discretionary relief, and the immigration judge would order him deported. Because
Padilla’s deportation consequence was truly clear, his plea counsel’s duty was to warn him that
he would be deported. Id. at 1483. A mere warning of a risk of adverse immigration
consequences would be constitutionally deficient. Id.
-3-
04-11-00038-CR & 04-11-00039-CR
To determine whether Rodriguez received ineffective assistance of counsel, we must first
decide whether the immigration consequences for her pleas were truly clear. 1 See id. Like
Padilla, Rodriguez was deportable; but unlike Padilla, Rodriguez was eligible for cancellation of
removal. As discussed below, Rodriguez’s immigration consequences turn on her removability
and eligibility for cancellation of removal.
A. Removability
1. Removable Persons
The Immigration and Nationality Act (INA) authorizes the Attorney General to order
deported any alien who “is convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct.” 8 U.S.C. § 1227(a)(2)(A)(ii) (2006); see
Amouzadeh v. Winfrey, 467 F.3d 451, 454 (5th Cir. 2006). The INA does not define “moral
turpitude,” but federal courts give substantial deference to the Board of Immigration Appeals’
(BIA’s) definition of the term. Fuentes-Cruz v. Gonzales, 489 F.3d 724, 725 (5th Cir. 2007) (per
curiam); Amouzadeh, 467 F.3d at 454. For the BIA’s deportation determination purposes, theft
and prostitution convictions in Texas are crimes involving moral turpitude. See generally
Fuentes-Cruz, 489 F.3d at 726; Holgin v. State, 480 S.W.2d 405, 408 (Tex. Crim. App. 1972)
(prostitution involves moral turpitude); Brown v. Tex. Dep’t of Ins., 34 S.W.3d 683, 690 (Tex.
App.—Austin 2000, no pet.) (theft by check involves moral turpitude).
2. Rodriguez’s Removability
Rodriguez pleaded nolo contendere to two separate misdemeanors: theft by check and
prostitution. She asserts that both offenses are crimes involving moral turpitude; we agree. See
1
The State did not challenge Rodriguez’s assertion that Padilla applies retroactively to her case. See Padilla v.
Kentucky, 130 S. Ct. 1473 (2010). Therefore, for purposes of this case, we apply Padilla’s test for constitutionally
deficient counsel.
-4-
04-11-00038-CR & 04-11-00039-CR
Holgin, 480 S.W.2d at 480; Brown, 34 S.W.3d at 690. Therefore, Rodriguez was deportable.
See 8 U.S.C. § 1227(a)(2)(A)(ii); Amouzadeh, 467 F.3d at 454. However, some deportable
aliens, like Rodriguez, are eligible for discretionary relief such as cancellation of removal.
B. Eligibility for Discretionary Relief
1. Cancellation of Removal
Under the INA, the Attorney General has discretionary authority to cancel removal in
some instances. 8 U.S.C. § 1229b(a) (2006); see Carachuri-Rosendo v. Holder, 130 S. Ct. 2577,
2583 (2010); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 214–15 (5th Cir. 2003). An LPR who
has been admitted for at least five years, who has continuously resided in the United States for
seven years, and who has not been convicted of an aggravated felony—under the federal
immigration law definition—may apply for cancellation of removal. 8 U.S.C. § 1229b(a)
(2006); Carachuri-Rosendo, 130 S. Ct. at 2580–81. The LPR “bears the burden of
demonstrating that his or her application for relief merits favorable consideration.” In re C-V-T-,
22 I. & N. Dec. 7, 12 (BIA 1998); see 8 C.F.R. § 1240.64(a) (2012). She may offer evidence,
including “affidavits from family, friends, and responsible community representatives,” that
show her good character and support her application. Matter of Marin, 16 I. & N. Dec. 581, 585
(BIA 1978). Factors that support cancellation of removal include the following:
family ties within the United States, residence of long duration in this country
(particularly when the inception of residence occurred at a young age), evidence
of hardship to the respondent and his family if deportation occurs, . . . a history of
employment, the existence of property or business ties, evidence of value and
service to the community, proof of genuine rehabilitation if a criminal record
exists, and other evidence attesting to a respondent’s good character.
In re C-V-T-, 22 I. & N. Dec. at 11. Adverse factors include:
the nature and underlying circumstances of the grounds of exclusion or
deportation (now removal) that are at issue, the presence of additional significant
violations of this country’s immigration laws, the existence of a criminal record
-5-
04-11-00038-CR & 04-11-00039-CR
and, if so, its nature, recency, and seriousness, and the presence of other evidence
indicative of a respondent’s bad character or undesirability as a permanent
resident of this country.
Id. The immigration judge “‘must balance the adverse factors evidencing the [LPR]’s
undesirability as a permanent resident with the social and humane considerations presented in his
(or her) behalf to determine whether the granting of . . . relief appears in the best interest of this
country.’” Id. (quoting Marin, 16 I. & N. Dec. at 584–85) (omission in original). The
immigration judge must “clearly enunciate the basis for granting or denying a request for
cancellation of removal,” and the judge’s decision is subject to administrative review by the
Board of Immigration Appeals. See id. at 12, 15 (reversing the immigration judge’s decision and
granting cancellation of removal). However, there is no judicial review of “any judgment
regarding the granting of [discretionary] relief under section . . . 1229b.” 8 U.S.C.
§ 1252(a)(2)(B)(i); Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir. 2008); see Delgado-
Reynua v. Gonzales, 450 F.3d 596, 600 (5th Cir. 2006).
2. Rodriguez’s Eligibility for Cancellation of Removal
In its brief, the State asserted Rodriguez was eligible for cancellation of removal when
she pleaded to the offenses, and Rodriguez did not rebut that assertion. According to the record,
Rodriguez was eligible for cancellation of removal at the time of her plea because she was an
LPR and had been admitted for at least five years, had continuously resided in the United States
for seven years, and had not been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)
(2006); Carachuri-Rosendo, 130 S. Ct. at 2580–81. Having established that Rodriguez was
subject to deportation but also eligible for cancellation of removal, we must determine whether
Rodriguez’s deportation consequence was truly clear. If it was truly clear then according to
-6-
04-11-00038-CR & 04-11-00039-CR
Padilla, plea counsel must have advised Rodriguez that she would be deported. We turn then to
Padilla and its progeny for guidance on the meaning of truly clear deportation consequence.
C. Defining Deportation Consequence
1. Deportation Consequence Analysis
If “the terms of the relevant immigration statute are succinct, clear, and explicit in
defining the removal consequence for [the defendant’s] conviction,” the defendant’s plea counsel
must “give correct advice [that] is equally clear.” Padilla, 130 S. Ct. at 1483. Plea counsel must
tell the defendant that she will be deported; a general warning of some adverse immigration
consequence is not sufficient. See id.; Ex parte Rodriguez, 350 S.W.3d 209, 211 (Tex. App.—
San Antonio 2011, no pet.). However, if the deportation consequence for a defendant’s plea is
not truly clear, “a criminal defense attorney need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 130
S. Ct. at 1483; Rodriguez, 350 S.W.3d at 211. The specificity of the warning that Padilla
requires turns on whether “the deportation consequence is truly clear,” but Padilla does not state
what “deportation consequence” comprises. See Padilla, 130 S. Ct. at 1483. Specifically,
Padilla does not state whether deportation consequence analysis is limited to determining
whether the statutory terms making the noncitizen defendant deportable are succinct, clear, and
explicit, or if the analysis also includes the defendant’s eligibility for cancellation of removal.
See id. at 1482–83.
2. Examining Padilla
In Padilla, the defendant was clearly deportable and he was not eligible for cancellation
of removal. See id. at 1480, 1483. The outcome of his removal proceeding was certain: he
would be deported. The Court stated that Padilla’s deportation consequence was truly clear, but
-7-
04-11-00038-CR & 04-11-00039-CR
it did not expressly address whether deportation consequence includes the defendant’s eligibility
for discretionary relief. Nevertheless Padilla helps define consequence in its discussion on when
the statutory terms are succinct, clear, and explicit. Id. at 1482–83.
The majority uses “consequence” in describing “the removal consequence for Padilla’s
conviction,” the “consequences of Padilla’s plea,” and “when the deportation consequence is
truly clear.” Id. at 1483. These uses comport with the view that the deportation consequence is
the outcome of the removal proceeding. See id.
The concurring opinion also shapes the definition of deportation consequence. The
concurrence primarily addresses the difficulties in determining whether a crime makes a
noncitizen defendant removable. E.g., id. at 1488 (Alito, J., concurring) (“[D]etermining
whether a particular crime is an ‘aggravated felony’ or a ‘crime involving moral turpitude
[ (CIMT) ]’ is not an easy task.” (second alteration in original)). But the concurrence expressly
includes eligibility for discretionary relief as one of the factors to consider in determining “the
immigration consequences of a criminal conviction.” Id. at 1489–90 (“The task of offering
advice about the immigration consequences of a criminal conviction . . . [includes determining
whether the alien is] eligible for relief from removal . . . .”). 2 These uses of consequence by the
majority and the concurrence are consistent with a definition of deportation consequence as the
final result of the removal proceeding—whether the removal order will be granted or cancelled.
3. Other Courts
We have not found any Texas authority that directly addresses the question of whether
deportation consequence includes discretionary relief. However, at least two other courts have
2
Justice Alito’s concurrence also points out the complicated task of offering advice about immigration
consequences based on the alien’s status; whether the alien is subject to removal, eligible for relief from removal, or
qualified to become a naturalized citizen. Id. at 1490.
-8-
04-11-00038-CR & 04-11-00039-CR
considered, in light of Padilla, defense counsel’s advice regarding discretionary relief to a
noncitizen defendant.
In Hernandez v. State, the LPR defendant was arrested for selling lysergic acid
diethylamide (LSD). Hernandez v. State, 61 So. 3d 1144, 1146 (Fla. Dist. Ct. App. 2011),
review granted, 81 So. 3d 414 (Fla. Jan. 24, 2012). His conviction was an aggravated felony for
immigration purposes and made him ineligible for discretionary relief. Id. at 1446–47. The
appellate court considered the defendant’s eligibility for discretionary relief as a factor in
determining when the deportation consequence is truly clear. Id. at 1447–49. It decided that the
defendant’s deportation consequence was truly clear because his plea made him deportable and
he was not eligible for discretionary relief. Id.
In Diunov, a noncitizen defendant pleaded guilty to mail fraud, wire fraud, and
conspiracy. Diunov v. United States, No. 08 Civ. 3184 (KMW), 2010 WL 2483985, at *1
(S.D.N.Y. June 16, 2010). Before she entered her plea, defense counsel advised her that her plea
would make her subject to deportation and that she would be eligible for a hardship waiver. Id.
at *11. The court noted with approval that her defense counsel “did not assure her that any
factor as it related to such a waiver would actually or necessarily prevent her deportation.” Id.
Notably, the court did not terminate its analysis of her deportation consequence with the offenses
to which she pleaded guilty; she “face[d] presumptively mandatory deportation.” Id. at *1.
Instead, the court considered whether she was eligible for discretionary relief—a hardship
waiver—and whether her counsel properly advised her regarding that discretionary relief when it
determined that plea counsel gave her appropriate advice. Id. at *9–11.
-9-
04-11-00038-CR & 04-11-00039-CR
D. Deportation Consequence Analysis Consistent With Padilla
In our view, a deportation consequence analysis that includes the client’s eligibility for
cancellation of removal is consistent with Padilla. When an LPR defendant is charged with an
offense where the statute succinctly, clearly, and explicitly makes her removable, and the
defendant is not eligible for cancellation of removal, her deportation consequence—like
Padilla’s—is truly clear. See Padilla, 130 S. Ct. at 1483. Thus, counsel has a duty to inform the
defendant that she will be deported. But if she is eligible for cancellation of removal and counsel
only advises her that she is subject to deportation and fails to also advise her that she may
ultimately avoid deportation because she is eligible for discretionary relief, the attorney’s advice
is at a minimum incomplete legal advice. See id. at 1491 (Alito, J., concurring) (“Incomplete
legal advice may be worse than no advice at all because it may mislead and may dissuade the
client from seeking advice from a more knowledgeable source.”). 3
Because plea counsel cannot advise the defendant with any degree of certainty whether
her removal will be cancelled, counsel’s duty to advise the defendant of her immigration
consequences is much more circumspect. Section 1229b(a)’s terms that define the defendant’s
eligibility for cancellation of removal are explicit, but the defendant’s ability to obtain the relief
is not so straightforward. See id. at 1483 (majority opinion) (recognizing “the law is not succinct
and straightforward” in many situations). Therefore, the final result—whether the LPR
defendant will actually be deported—will depend on whether the defendant is granted
discretionary relief from removal. See id. at 1490 (Alito, J., concurring) (noting that “the
immigration consequences of a criminal conviction” include the question of whether the
3
Following Padilla, we reject a view that would increase the likelihood of affirmative misadvice or misleading
advice. See Padilla, 130 S. Ct. at 1483 (rejecting affirmative misadvice); id. at 1491 (Alito, J., concurring)
(warning of misleading or incomplete advice).
- 10 -
04-11-00038-CR & 04-11-00039-CR
noncitizen defendant is “eligible for relief from removal” (internal quotation marks omitted)).
Cancellation of removal in turn depends on numerous factors and the decision to grant relief
rests in the immigration judge’s discretion. See In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998);
Matter of Marin, 16 I. & N. Dec. 581, 584–85 (BIA 1978). Because the final result of the
defendant’s plea depends on relief that may or may not be granted, the defendant’s eligibility for
cancellation of removal makes the deportation consequence unclear or uncertain. See Padilla,
130 S. Ct. at 1483.
Considering the discretionary nature of cancellation of removal and its effect on the LPR
defendant’s plea, we believe that an LPR defendant’s eligibility for cancellation of removal
makes the defendant’s deportation consequence not truly clear. We hold that the analysis to
determine whether a deportation consequence is truly clear must include the question of the LPR
defendant’s eligibility for cancellation of removal. Cf. Ex parte Carpio-Cruz, No. 08-10-00240-
CR, 2011 WL 5460848, at *7 (Tex. App.—El Paso Nov. 9, 2011, no pet. h.) (not designated for
publication) (expressly considering the defendant’s ineligibility for cancellation of removal in
determining whether his deportation consequence was truly clear); Hernandez v. State, 61 So. 3d
1144, 1147–48 (Fla. Dist. Ct. App. 2011) (considering discretionary relief as a factor in
determining when the deportation consequence is truly clear), review granted, 81 So. 3d 414
(Fla. Jan. 24, 2012). If an LPR defendant’s deportation consequence is not truly clear, the plea
attorney’s duty to advise the client on the immigration effects of the plea is limited. See Padilla,
130 S. Ct. at 1483. The LPR defendant’s attorney “need do no more than advise [the] noncitizen
client that pending criminal charges may carry a risk of adverse immigration consequences.” Id.;
Ex parte Rodriguez, 350 S.W.3d 209, 211 (Tex. App.—San Antonio 2011, no pet.).
- 11 -
04-11-00038-CR & 04-11-00039-CR
INEFFECTIVE ASSISTANCE OF COUNSEL
We now examine whether plea counsel’s failure to advise Rodriguez that she was
deportable rendered her counsel’s performance ineffective.
A. Strickland’s Prongs
In deciding whether to plead guilty to a criminal charge, a defendant is entitled to
effective assistance of counsel. Padilla, 130 S. Ct. at 1480–81; see Ex parte Morrow, 952
S.W.2d 530, 536 (Tex. Crim. App. 1997). See generally Strickland v. Washington, 466 U.S.
668, 686 (1984). If a defendant asserts she received ineffective assistance of counsel, she must
satisfy both of Strickland’s prongs: she must prove her plea counsel’s performance was deficient,
and as a result, she suffered prejudice. See Padilla, 130 S. Ct. at 1482; Strickland, 466 U.S. at
687.
B. Habeas Hearing
To be entitled to habeas relief, Rodriguez had to show that her plea counsel’s assistance
was ineffective. See Padilla, 130 S. Ct. at 1482; Strickland, 466 U.S. at 687. James Hunt was
Rodriguez’s plea counsel. Rodriguez asserts she proves both of Strickland’s prongs: (1) that
Hunt’s assistance was constitutionally deficient because he failed to tell her she would be
deported, and (2) had she known she would be deported, she would instead have gone to trial.
At the hearing on her applications for writs of habeas corpus, Rodriguez’s habeas counsel
asserted Hunt’s advice was constitutionally deficient under Padilla, but the appellate record
provides very little insight into what Hunt advised Rodriguez before the court accepted her pleas.
At the habeas hearing, neither Rodriguez nor the State put on a single witness. The reporter’s
record captures the entire proceeding in only four pages. Rodriguez’s habeas counsel argued that
Padilla applies retroactively, that Hunt’s performance was deficient, Rodriguez was prejudiced,
- 12 -
04-11-00038-CR & 04-11-00039-CR
and the court should grant her applications. Rodriguez’s habeas counsel also noted that
Rodriguez had submitted affidavits from herself and from Hunt. Rodriguez’s affidavit avers that
Hunt asked her if she was a citizen, she told him she was a resident alien, but Hunt did not
explain that her pleas “would affect my residency in the United States.” Hunt’s affidavit avers
that he has never done “immigration work,” he did not advise Rodriguez that “her convictions
subjected her to certain deportation/removal,” and that he does not recall if he advised “her to
consult with an immigration attorney.” His affidavit states that the admonitions Rodriguez
signed are attached to his affidavit, but none are attached and the appellate record contains no
admonitions. The State argued that Rodriguez signed separate admonitions for each of the
misdemeanor offenses and therefore must have been aware of the deportation consequence of her
pleas. During the hearing, the trial court disputed Rodriguez’s habeas counsel’s assertion that
Rodriguez was not advised of the deportation consequence of her pleas.
Sir, I’m going to tell you that in Cause Number 639382, I took that plea and I
inform everyone that “should you plead guilty or no contest and not be a citizen
of the United States of America, a plea of guilt or of no contest could adversely
affect your citizenship status now or at a later time.” And I do that routinely. I
took the plea in that cause. Actually, I took the plea in both causes.
C. Trial Court’s Order
In its order denying Rodriguez’s applications for writs of habeas corpus, the trial court
included findings of fact and conclusions of law. The trial court found that Rodriguez signed the
court’s admonitions that warned her “that if she was not a citizen of the United States, a plea of
guilty or nolo contendere for the offenses charged may result in deportation, the exclusion from
admission to this country, or the denial of naturalization under federal law.” The trial court
concluded that Rodriguez failed to meet either of Strickland’s prongs: she had not shown
- 13 -
04-11-00038-CR & 04-11-00039-CR
deficient performance or prejudice. See generally Strickland v. Washington, 466 U.S. 668, 687
(1984).
D. Plea Counsel’s Advice
Because Rodriguez’s deportation consequence was not truly clear, Hunt’s duty to advise
Rodriguez about the effects of her plea was limited: he only had to warn her that her pleas could
“carry a risk of adverse immigration consequences.” See Padilla, 130 S. Ct. at 1483; Rodriguez,
350 S.W.3d at 211. Assuming arguendo that Hunt’s advice was deficient, Rodriguez’s
ineffective assistance assertion still fails: Rodriguez cannot show she was prejudiced.
E. No Prejudice
After the court advised Rodriguez’s habeas counsel that it always admonishes defendants
entering pleas about the deportation consequence of their pleas, counsel responded: “[W]e are
not here in any way challenging what the Court may have advised her. At issue here is what her
[plea] attorney advised her.” Thus Rodriguez does not dispute that, before the court accepted her
pleas, the court admonished her that her pleas could have adverse immigration consequences.
1. Incurable prejudice authorities
Nevertheless, Rodriguez argues that the trial court’s admonitions could not cure the
prejudice caused by Hunt’s alleged deficient performance. She cites four authorities for support,
but each is distinguishable. In three of Rodriguez’s four cited authorities, the noncitizen
defendant was not eligible for discretionary relief. See Salazar v. State, No. 11-11-00029-CR,
2011 WL 4056283, at *2 (Tex. App.—Eastland Aug. 31, 2011, no pet.) (recognizing that the
noncitizen defendant was not eligible for discretionary relief “because . . . he had not been a legal
resident of the United States for at least five years”); Ex parte Romero, 351 S.W.3d 127, 130–31
(Tex. App.—San Antonio 2011, no pet.) (noting that the LPR defendant’s “deportation
- 14 -
04-11-00038-CR & 04-11-00039-CR
consequence was truly clear” because he pleaded guilty to an aggravated felony, and impliedly
recognizing that the defendant was not eligible for cancellation of removal under § 1229b(a)); Ex
parte Tanklevskaya, No. 01-10-00627-CR, 2011 WL 2132722, at *7, *8 (Tex. App.—Houston
[1st Dist.] May 26, 2011, pet. filed) (noting that the noncitizen defendant did not qualify for the
discretionary relief of waiver of inadmissibility). These defendants’ immigration consequences
were truly clear, and plea counsels’ duty was to give specific advice. See Padilla, 130 S. Ct. at
1483; Rodriguez, 350 S.W.3d at 211. We agree that in such circumstances, a trial court’s
admonition of possible immigration consequences will not cure plea counsel’s failure to give
specific advice. E.g., Tanklevskaya, 2011 WL 2132722, at *11. However, Rodriguez was
eligible for cancellation of removal and, as we explain above, her deportation consequence was
not truly clear, and the trial court’s admonition did not have to tell her that she would be
deported. See Padilla, 130 S. Ct. at 1483; Rodriguez, 350 S.W.3d at 211.
Rodriguez also cites Ex parte De Los Reyes, a case where the noncitizen defendant may
have been eligible for discretionary relief. See Ex parte De Los Reyes, 350 S.W.3d 723, 726
(Tex. App.—El Paso Aug 31, 2011, pet. granted). But De Los Reyes’s plea counsel admitted
that he failed to advise De Los Reyes that his guilty plea might have adverse immigration
consequences. See id. at 730. In this case, Rodriguez admits that she and Hunt discussed her
immigration status, and Hunt does not admit that he gave her no immigration advice. He merely
states he did not advise her she was certain to be deported.
2. Rodriguez not prejudiced
Rodriguez’s deportation consequence was not truly clear and plea counsel’s duty was
limited; he only needed to advise Rodriguez of possible deportation consequences. See Padilla,
130 S. Ct. at 1483; Rodriguez, 350 S.W.3d at 211. Even assuming arguendo that Hunt failed to
- 15 -
04-11-00038-CR & 04-11-00039-CR
properly advise Rodriguez, the trial court did not fail to do so. The habeas court found that
before the trial court accepted Rodriguez’s pleas, Rodriguez signed admonitions stating she
understood her pleas could have adverse immigration consequences. The habeas court stated
that the trial court orally warned Rodriguez of possible adverse immigration consequences before
it accepted her pleas, and Rodriguez did not challenge the court’s statement. There is no
evidence that the trial court would have refused Rodriguez’s request to withdraw her pleas if,
after hearing the trial court’s oral admonition, she chose not to plead nolo contendere. Giving
deference to the trial court’s findings of fact, we must conclude that Rodriguez chose to proceed
with her pleas knowing that she would risk adverse immigration consequences. See Manzi v.
State, 88 S.W.3d 240, 243–44 (Tex. Crim. App. 2002). Therefore, Rodriguez cannot show
prejudice. See Marroquin v. United States, No. M-10-156, 2011 WL 488985, at *8 (S.D. Tex.
Feb. 4, 2011) (deciding that the trial court’s specific admonition that the defendant would be
deported disproved prejudice); Amreya v. United States, Nos. 4:10-CV-503-A, 4:08-CR-033-A
2010 WL 4629996, at *5 (N.D. Tex. Nov. 8, 2010) (deciding that the court’s admonition that the
defendant’s plea “could result in deportation” precluded prejudice); Momah v. United States,
Nos. 4:10-CV-369-A, 4:07-CR-189-A, 2010 WL 3431657, at *3 (N.D. Tex. Aug. 30, 2010)
(same); cf. Ex parte Tanklevskaya, No. 01-10-00627-CR, 2011 WL 2132722, at *11 (Tex.
App.—Houston [1st Dist.] May 26, 2011, pet. filed) (rejecting an admonition warning of
possible adverse immigration consequences as curing prejudice when Padilla required a specific
warning).
CONCLUSION
We hold that when a lawful permanent resident defendant is deportable but is also
eligible for cancellation of removal, the defendant’s deportation consequence is not truly clear.
- 16 -
04-11-00038-CR & 04-11-00039-CR
We further hold that when the deportation consequence is unclear or uncertain, and the trial court
warns the defendant before it accepts the defendant’s plea, the trial court’s warning “that the
pending criminal charges may carry a risk of adverse immigration consequences” precludes
constitutional prejudice from plea counsel’s failure to give the required warning. See Padilla,
130 S. Ct. at 1483; see also TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West Supp. 2011); Ex
parte Rodriguez, 350 S.W.3d 209, 210 (Tex. App.—San Antonio 2011, no pet.).
In this case, Rodriguez failed to prove prejudice, and the trial court did not abuse its
discretion in denying her applications. Therefore, we affirm the trial court’s order.
Rebecca Simmons, Justice
PUBLISH
- 17 -