Ex Parte Julian Hernandez , 2013 Tex. App. LEXIS 4032 ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00366-CR
_________________
EX PARTE JULIAN HERNANDEZ
________________________________________________________________________
On Appeal from the County Court at Law No. 3
Jefferson County, Texas
Trial Cause No. 285449
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OPINION
This is an appeal from a denial of a writ of habeas corpus proceeding that
questioned the advice the defendant was given by his attorney concerning the
consequence of pleading guilty on the defendant’s status as a legal immigrant. In
this appeal, we consider whether further proceedings are required to allow the
parties to present testimony for the trial court to consider before it determines if
Julian Hernandez received ineffective assistance of counsel and, if so, whether he
was prejudiced by his attorney’s advice. We conclude the trial court erred by
1
considering only the record of the guilty plea hearing in deciding the disputed
issues; as a result, further proceedings are required.
In July 2012, Hernandez filed an application for writ of habeas corpus
claiming that his attorney failed to advise him that pleading guilty to possessing
alprazolam would result in his removal from the country. See 8 U.S.C.A. §
1101(a)(48) (West 2005) (defining the term “conviction” for immigration purposes
to include cases where the adjudication and the sentence is not imposed).
Hernandez argues that had he been provided with accurate information about the
immigration consequences of pleading guilty, he would not have pled guilty to
possessing alprazolam. See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176
L. Ed. 2d 284 (2010).
In his application for the writ, Hernandez sought to establish that his plea
counsel failed to properly advise him of the consequences of his guilty plea,
making his plea involuntary, and that he was prejudiced by his attorney’s incorrect
advice. See Tex. Code Crim. Proc. Ann. art. 11.072 § 1 (West 2005) (establishing
procedures for an application for a writ of habeas corpus for cases that concern
orders imposing community supervision). According to the application,
Hernandez’s plea counsel advised him that a guilty plea to the offense at issue
might result in his deportation, but did not advise him that pleading guilty would
2
“result in certain deportation[.]” Hernandez further alleged that “if he had been so
advised by either his lawyer or [the trial] court, he would not have pled guilty but
tendered defenses for the crime.” Hernandez verified the statements in his
application under oath.
The record reflects that Hernandez has been living in the United States since
1991, and in 2007, he became a lawful permanent resident. 1 In 2010, the State
charged Hernandez with possessing alprazolam, a Class A misdemeanor. See Tex.
Health & Safety Code Ann. §§ 481.104, 481.117(b) (West 2010). The record also
shows Hernandez was admonished, in writing, that a plea of guilty “may result in
your deportation, exclusion from admission to the country or denial of
naturalization under federal law.” See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4)
(West Supp. 2012) (providing that prior to accepting a plea of guilty or nolo
contendere the court shall admonish the defendant of the “fact that if the defendant
is not a citizen of the United States of America, a plea of guilty or nolo contendere
for the offense charged may result in deportation, the exclusion from admission to
this country, or the denial of naturalization under federal law”). Hernandez chose
to plead guilty to possession; however, the trial court did not pronounce a sentence.
1
“The term ‘lawfully admitted for permanent residence’ means the status of
having been lawfully accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws, such status not
having changed.” 8 U.S.C.A. § 1101(a)(20) (West 2005).
3
Instead, the trial court deferred the adjudication of Hernandez’s guilt and placed
him on community supervision for one year. After completing the conditions that
were required of him by the community supervision order, the trial court
discharged Hernandez and dismissed the case.
Subsequently, Hernandez was arrested for an immigration violation—based
on his guilty plea to the previously discussed drug crime—and is being held by a
federal law enforcement agency, the United States Immigration and Customs
Enforcement. The record from the habeas proceeding reflects that the United States
is seeking to remove Hernandez from the United States because he was “convicted
in the County Court of Jefferson County . . . for the offense of Possession of a
Controlled Substance[.]” See 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 2005 & Supp.
2010) (providing that “[a]ny alien who at any time after admission has been
convicted of a violation of . . . any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance, . . . other than a single
offense involving possession for one’s own use of 30 grams or less of marijuana, is
deportable”); see Padilla, 130 S. Ct. at 1477 n.1 (“[V]irtually every drug offense[,]
except for only the most insignificant marijuana offenses, is a deportable offense
under 8 U.S.C.[A.] § 1227(a)(2)(B)(i).”).
4
Although the collateral consequences of Hernandez’s guilty plea arose
because federal law treats a deferred adjudication on a case as a conviction, that
restraint may be addressed in a habeas proceeding. See Ex parte Hargett, 819
S.W.2d 866, 867 (Tex. Crim. App. 1991), superseded by statute, Tex. Code Crim.
Proc. Ann. art. 11.072 (West 2005) (involving a habeas proceeding that challenged
validity of applicant’s guilty plea based on a claim of ineffective assistance
because the plea affected the applicant’s military retirement benefits). Hernandez
challenged the restraint created by his guilty plea through a writ of habeas corpus,
which “is the remedy to be used when any person is restrained in his liberty.” Tex.
Code Crim. Proc. Ann. art. 11.01 (West 2005). The writ of habeas corpus “is an
order issued by a court or judge of competent jurisdiction, directed to any one
having a person in his custody, or under his restraint, commanding him to produce
such person, at a time and place named in the writ, and show why he is held in
custody or under restraint.” Id. Under Chapter 11 of the Code of Criminal
Procedure, which governs writs of habeas corpus, a “restraint” is “the kind of
control which one person exercises over another, not to confine him within certain
limits, but to subject him to the general authority and power of the person claiming
such right.” Id. art. 11.22 (West 2005). Also, under Chapter 11, a writ of habeas
corpus is the appropriate vehicle to challenge “all such cases of confinement and
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restraint[.]” Id. art. 11.23 (West 2005). We conclude that Hernandez may challenge
the restraint at issue by filing a writ of habeas corpus.
The trial court’s decision to dismiss the drug possession case after
Hernandez successfully completed the requirements of his deferred adjudication
did not render Hernandez’s application moot. See Tatum v. State, 846 S.W.2d 324,
327 (Tex. Crim. App. 1993) (“A judgment of conviction for a misdemeanor
offense may have detrimental collateral consequences whether or not probation is
completed without a hitch or jail time is actually served.”); Ex parte Ormsby, 676
S.W.2d 130, 131 (Tex. Crim. App. 1984) (stating that “mootness cannot prohibit a
collateral attack [by habeas] if prior discharged convictions may have collateral
consequences to a criminal defendant”). Thus, if Hernandez’s plea was not
voluntary, as he contends, and if he succeeds in proving he suffered prejudice
because he received ineffective assistance of counsel, the trial court has the power
to remove the restraint at issue. See Tatum, 846 S.W.2d at 327 (suggesting that a
misdemeanor judgment could be void and collaterally attacked, whether or not a
term of probation was successfully served out); Ormsby, 676 S.W.2d at 132
(removing restraint created by invalid conviction by ordering the habeas applicant
“released from every manner of restraint in his personal liberty as a consequence of
that conviction”). In cases that involve deferred adjudications, as is the case here,
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the restraint can be removed by a trial court issuing an order vacating the
applicant’s plea. See Ex parte Sudhakar, No. 14-11-00701-CR, 2012 Tex. App.
LEXIS 10068, at **2-4, 16-17 (Tex. App.—Houston [14th Dist.] Dec. 6, 2012, no
pet.) (mem. op., not designated for publication) (vacating plea in a misdemeanor
drug case because of ineffective assistance resulting in involuntary plea where
counsel failed to properly advise applicant regarding the immigration
consequences of the plea).
In this case, the trial court entered an order stating that the attorney who
represented Hernandez when he pled guilty “rendered all necessary paperwork in
the hearing[,]” and denied Hernandez’s application on its merits. The trial court did
not dismiss the application as frivolous. See Tex. Code Crim. Proc. Ann. art 11.072
§ 7(a) (West 2005) (allowing the trial court to enter an order denying the
application as frivolous or to enter a written order including findings of fact and
conclusions of law). To evaluate the application’s merits, the trial court conducted
a hearing. See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008)
(noting that “a hearing held to determine whether a writ should issue or whether
the merits of claims should be addressed is not the same as one that is held to
resolve the merits of an applicant’s allegations”) (citing Ex parte Hargett, 819
S.W.2d at 868). It is apparent from the hearing the trial court conducted that the
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trial court did not believe it needed to consider anything other than the written
record from the proceedings that resulted in Hernandez’s guilty plea. During the
hearing on Hernandez’s request for habeas relief, Hernandez’s habeas counsel
indicated that before the hearing, he inquired about having a bench warrant issued
to secure Hernandez’s presence, but his request was not honored; then, habeas
counsel advised the court that he could get Hernandez to the hearing. At that point,
the trial court responded: “No. I have reviewed your writ.” Thus, it appears the trial
court did not believe it should consider Hernandez’s testimony about why he had
chosen to plead guilty, or any testimony relevant to proving how Hernandez had
suffered prejudice by following his attorney’s advice.
It also appears the trial court felt the testimony of the attorney who
represented Hernandez when he pled guilty was unnecessary. The record of the
habeas proceeding reflects that habeas counsel advised the trial court that
Hernandez’s plea counsel told Hernandez before he pled guilty that his guilty plea
may result in his deportation. When habeas counsel asked to present evidence on
the issue of prejudice by affidavit, the trial court stated: “I will stipulate to the
written documents that you have cited. They speak for themselves.” This exchange
reinforces our conclusion that the trial court thought that the issues in dispute could
be resolved by examining the existing record, and that testimony was unnecessary.
8
For example, during the habeas hearing, the trial court stated that it was not
interested in hearing testimony, stating that “any decision I make would be
exclusively on the documentation.” Despite habeas counsel’s offers to develop the
record, the record before us reflects that no witnesses testified during the habeas
hearing. After denying Hernandez an evidentiary hearing, the trial court denied
Hernandez’s request for relief.
Shortly after the habeas hearing, and before the trial court entered an order
denying the writ on the merits, habeas counsel filed an offer of proof. The offer of
proof reflects that habeas counsel requested but was denied a bench warrant that
was intended to require Hernandez to appear at the habeas hearing. The offer of
proof reiterates that Hernandez’s plea counsel failed to advise Hernandez that
choosing to plead guilty made his deportation certain. The offer of proof also
asserts that Hernandez would not have pled guilty had he known he would be
deported. On the afternoon after the offer of proof was filed, the trial court issued
an order denying Hernandez’s writ.
After Hernandez appealed, we abated the appeal and asked the trial court to
enter findings of fact and conclusions of law. See Tex. R. App. P. 31.3.
Subsequently, the trial court found that it had not “wrongfully exclude[d] evidence
or testimony[]” and that Hernandez had the burden of proof. Then, the trial court
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concluded that Hernandez “failed to [sustain] his burden of proof[.]” Although the
findings made clear that the trial court decided the writ on the merits, it is not clear
whether the trial court found that Hernandez failed to prove that he received
inaccurate legal advice regarding the consequences of the plea to his status as an
immigrant, or that he failed to prove he was prejudiced by his attorney’s inaccurate
advice, or both. Nevertheless, our disposition of Hernandez’s appeal does not
depend on whether the trial court ruled against Hernandez on one or both of these
issues.
Generally, a trial court’s decision on an application for writ of habeas corpus
is reviewed for abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006). With respect to an evidentiary ruling, the evidence introduced in
a hearing is reviewed in the light most favorable to the trial court’s ruling. Id. The
two-pronged Strickland v. Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel for failing to provide accurate
information about the immigration consequences of a plea. Padilla, 130 S. Ct. at
1482-84 (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)). To obtain habeas relief on the ground of ineffective
assistance, a defendant must show that his counsel’s representation fell below the
standard of prevailing professional norms; he must also show that but for counsel’s
10
deficiency, the result of the trial would have been different. See Strickland, 466
U.S. at 687.
To prove a guilty plea was involuntary because of ineffective assistance, a
defendant must show (1) counsel’s plea advice did not fall within the range of
competence demanded of attorneys in criminal cases; and (2) there is a reasonable
probability that, but for counsel’s deficient performance, defendant would have
insisted on going to trial rather than accepting the offer and pleading guilty. Hill v.
Lockhart, 474 U.S. 52, 56, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Ex parte
Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). If plea counsel fails to
advise a noncitizen defendant about deportation consequences that are “truly
clear,” plea counsel’s performance is deficient. See Padilla, 130 S. Ct. at 1483;
Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App.—Houston [14th Dist.] 2012, pet.
filed).
In this case, the trial court apparently did not believe that any testimony was
necessary to decide the issues raised by Hernandez’s writ, as it refused counsel’s
offer to provide testimony to prove the allegations that led to the filing of the writ.
After limiting the evidence that it would consider, the trial court denied the writ on
the merits, basing its decision on a failure of proof. In our opinion, the issues raised
by Hernandez in his application allowed the parties to develop the record beyond
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the written record of the prior plea proceedings, and a further development of the
record is required so the trial court may make an informed decision on the issues in
dispute. The trial court, under the circumstances, had several options to allow
Hernandez’s testimony to be placed in evidence before deciding how to rule on the
writ: it could have conducted an evidentiary hearing and allowed Hernandez and
others the opportunity to testify; or, if Hernandez’s actual appearance was
impractical because he is being detained by federal authorities, the trial court could
have allowed the parties to take Hernandez’s deposition and present it during the
hearing; or, the trial court could have allowed Hernandez to present his sworn
testimony by teleconference. Instead, the trial court failed to provide habeas
counsel with an adequate opportunity to develop the record with evidence relevant
to the issues in dispute.
Under Rule 31.2, the “sole purpose of the appeal [of a habeas matter] is to
do substantial justice to the parties.” Tex. R. App. P. 31.2. Rule 31 expressly
applies to article 11.072 writs of habeas corpus. See Tex. Code Crim. Proc. Ann.
art. 11.072 § 8 (West 2005). Rule 31.3 goes on to provide that “[t]he appellate
court will render whatever judgment and make whatever orders the law and the
nature of the case require.” Tex. R. App. P. 31.3. When a habeas record requires
factual development, the Code of Criminal Procedure empowers the trial court to
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“order affidavits, depositions, interrogatories, or a hearing, and [the court] may rely
on the court’s personal recollection.” Tex. Code Crim. Proc. Ann. art 11.072 § 6(b)
(West 2005).
An appellate court may remand a habeas proceeding to the trial court for
further proceedings if the factual record has not been sufficiently developed. See
Ex parte Cherry, 232 S.W.3d 305, 308 (Tex. App.—Beaumont 2007, pet. ref’d).
Additionally, an appellate court may remand where, as here, the record is not
sufficiently developed regarding alleged prejudice. See Aguilar, 375 S.W.3d at 526
(remanding a habeas proceeding for development of record regarding alleged
prejudice).
We conclude the trial court erred by announcing that it would not consider
anything but the record of the prior proceedings and then ruling on the
application’s merits. We hold the trial court improperly restricted the evidence to
the prior plea proceedings in face of habeas counsel’s efforts to offer other clearly
relevant evidence. Because the trial court unduly restricted the development of the
record, the trial court should be required to conduct further proceedings to allow
Hernandez and the State to develop relevant evidence addressing the issues in
dispute. See Ex parte Sudhakar, 2012 Tex. App. LEXIS 10068, at **16-17 (mem.
op., not designated for publication). Accordingly, we reverse the trial court’s order
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denying the writ and remand the case for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
___________________________
HOLLIS HORTON
Justice
Submitted on November 1, 2012
Opinion Delivered March 27, 2013
Publish
Before McKeithen, C.J., Kreger, and Horton, JJ.
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DISSENTING OPINION
I respectfully dissent. When the law is not succinct and straightforward, a
defense attorney need only advise a noncitizen client that pending criminal charges
may carry a risk of deportation. Padilla v. Kentucky, 130 S. Ct. 1473, 1483, 2010
U.S. LEXIS 2928, 176 L. Ed. 2d 284 (2010). If a deportation consequence is truly
clear, such as when the client is subject to automatic deportation, the duty to give
correct advice is equally clear, and constitutionally competent counsel must advise
the client accordingly. Id. at 1478, 1483. The defendant must prove, by a
preponderance of the evidence, that there is a reasonable probability that, but for
counsel’s advice, he would not have pleaded guilty and would have insisted on
going to trial. Ex parte Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012, pet.
ref’d). Further, the defendant must show that a decision to reject the plea bargain
would have been rational under the circumstances. Padilla, 130 S. Ct. at 1485.
In its findings of fact, the trial court stated that: (1) pursuant to a plea
bargain agreement, Hernandez pleaded guilty to misdemeanor possession of a
controlled substance; (2) Hernandez was placed on deferred adjudication
community supervision for one year; (3) after his discharge from community
supervision, Hernandez filed his application for writ of habeas corpus; (4) in his
application, Hernandez alleged that he was not properly advised regarding
15
deportation; (5) a habeas corpus hearing took place; (6) the trial court did not
wrongfully exclude evidence or testimony; and (7) the applicant in a habeas corpus
proceeding bears the burden of proof. In its sole conclusion of law, the trial court
held that Hernandez failed to sustain his burden of proof; thus, all relief sought
should be denied.
The record contains signed misdemeanor plea admonishments, which
included the following: “If you are not a U.S citizen, a plea of guilty or nolo
contendere may result in your deportation; exclusion from admission to the country
or denial of naturalization under federal law.” The applicable federal law provides,
in pertinent part, that any alien in and admitted to the United States shall be
removed if the alien has been convicted of a violation of any state law or regulation
relating to a controlled substance. 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 2005 &
Supp. 2010); see Padilla, 130 S. Ct. at 1477 n.1 (“[V]irtually every drug offense[,]
except for only the most insignificant marijuana offenses, is a deportable offense
under 8 U.S.C.A. § 1227(a)(2)(B)(i).”); see also 8 U.S.C.A. § 1101 (a)(48) (West
2005) (Defining the term “conviction”). In some cases, removal may be cancelled,
but the record does not indicate that Hernandez qualified for cancellation. See 8
U.S.C.A. § 1229b(a) (West 2005). Under these circumstances, I agree that the
general admonishment that Hernandez “may” be subject to deportation was
16
insufficient to inform Hernandez that his guilty plea to possession of a controlled
substance subjected him to presumptively automatic deportation. See Padilla, 130
S. Ct. at 1478, 1483; see also Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).
Citing Aguilar, Hernandez contends that trial counsel’s deficiency entitles
him to either habeas relief or remand for an evidentiary hearing. In Aguilar, the
defendant submitted an affidavit stating that counsel told him that his guilty plea
could result in deportation, but failed to inform him that the plea would make
deportation presumptively mandatory. Aguilar, 375 S.W.3d at 520. Aguilar averred
that, had counsel advised him that his guilty plea would make deportation
presumptively mandatory, he would not have pleaded guilty and would have
insisted on a trial. Id. He explained that residence in the United States was the most
important thing to him with respect to the underlying case. Id. Aguilar also
provided trial counsel’s affidavit, in which counsel stated that he did not advise
Aguilar whether a guilty plea would have immigration consequences. Id. After
finding counsel’s performance deficient, the Fourteenth Court of Appeals found
the record only marginally developed and remanded the case for an evidentiary
hearing to determine prejudice. Id. at 526.
17
In her dissent, Justice Frost stated that Aguilar should not receive a second
chance to prove entitlement to habeas relief. Id. at 527 (Frost, J., dissenting). She
noted the minimal amount of evidence before the trial court, as well as Aguilar’s
failure to present evidence of a plausible defense or evidence that rejecting the
proffered plea bargain would have been rational. Id. at 528-29. She explained that
Texas Rule of Appellate Procedure 43.3, which allows remand in the interests of
justice, does not allow appellate courts to reverse “an error-free judgment in the
interests of justice or for further proceedings on remand.” Id. at 529-30. Nor did
she believe that an error-free judgment may be reversed simply because the case
involves a developing area of the law. Id. at 530. Justice Frost explained that
Padilla does not support the proposition that an intermediate appellate court can
reverse an error-free judgment denying habeas relief and remand to give the
applicant a second chance to prove entitlement to relief. Id. Justice Frost
maintained that the trial court did not abuse its discretion by impliedly finding
Aguilar failed to prove that a decision to reject the plea bargain would have been
rational. Id. at 528-30. Justice Frost concluded that the trial court’s judgment
should have been affirmed. Id. at 530.
Aguilar is not controlling authority in this Court. See Cannon v. State, 691
S.W.2d 664, 679-80 (Tex. Crim. App. 1985). Moreover, I find Justice Frost’s
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reasoning to be more persuasive. This Court has held that the trial court may be
capable of resolving the merits of the defendant’s claim without the necessity of
conducting an evidentiary hearing. Ex parte Alfaro, 378 S.W.3d 677, 679-81 (Tex.
App.—Beaumont 2012, no pet.).
In this case, the record contains the arresting officer’s affidavit, in which the
officer described observing a vehicle, being driven by a Hispanic male, swerving
on the roadway. The driver was later identified as Hernandez. When preparing to
initiate a traffic stop for failure to maintain a single lane, the officer observed two
clear plastic bags fly out of the driver’s side window. The officer activated the
patrol car’s overhead lights and, when the vehicle stopped, the officer saw three
male Hispanic occupants. The officer arrested Hernandez for littering. Another
officer retrieved the plastic bags, one of which contained a green leafy substance
and the other of which contained pills. The officers searched the vehicle and found
more pills in a container. The green substance tested positive for marijuana and the
pills were identified as alprazolam. The State charged Hernandez with possession
of a controlled substance, alprazolam. Hernandez presented no evidence, in his
application for writ of habeas corpus or at the hearing, to establish the existence of
a plausible defense to the charges against him or to establish that a decision to
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reject the plea bargain would have been rational. 2 He did not object at the hearing
to proceeding without testimony. Had Hernandez rejected the plea bargain,
proceeded to trial, and been convicted, he would have faced both confinement and
the risk of automatic deportation.
Under these circumstances, the trial court could reasonably conclude,
without an evidentiary hearing, that Hernandez failed to sustain his burden of
proving, by a preponderance of the evidence, that there is a reasonable probability
that, but for his counsel’s advice, he would not have pleaded guilty and would have
insisted on going to trial. See Padilla, 130 S. Ct. at 1485; see also Ali, 368 S.W.3d
at 835. Viewing the facts in the light most favorable to the trial court’s ruling, I
cannot agree that the trial court abused its discretion by denying Hernandez’s
application for habeas corpus. See Ex parte Klem, 269 S.W.3d 711, 718 (Tex. App.
—Beaumont 2008, pet. ref’d). I would overrule Hernandez’s sole issue and affirm
the trial court’s judgment.
2
After the hearing and the trial court’s denial of his application, Hernandez
filed an offer of proof to show what he would have testified to had the trial court
issued a bench warrant and to show what his trial counsel would have testified to at
the hearing. We review the record as it existed before the trial court at the time of
the hearing. Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San Antonio
2011, no pet.). Thus, we do not consider evidence filed after the trial court ruled on
Hernandez’s application.
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______________________________
STEVE McKEITHEN
Chief Justice
Dissent Delivered
March 27, 2013
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