Ex Parte David Vasquez

Opinion issued December 16, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00613-CR
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EX PARTE DAVID VASQUEZ, Appellant
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1324512-A
MEMORANDUM OPINION
Appellant, David Vasquez, appeals from the denial of his post-conviction
application for a writ of habeas corpus. Appellant, in his sole issue, contends that
his plea counsel’s failure to provide accurate immigration advice, required under
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), resulted in ineffective
assistance of counsel in violation of the Sixth Amendment and, as a result,
rendered his 2012 guilty plea involuntary. We hold that the trial court acted within
its discretion in denying the application and affirm.
BACKGROUND
Appellant, a citizen of El Salvador, has lived in the United States since 1986
and was granted lawful permanent resident status in 2005. On May 10, 2012,
through counsel, appellant pleaded guilty to the state jail felony of possession of
less than one gram of cocaine, for which he received two years’ deferred
adjudication community supervision. See TEX. HEALTH & SAFETY CODE ANN. §
481.115(a), (b) (West 2010); TEX. PENAL CODE ANN. § 12.35(a) (West Supp.
2014). The record does not contain a transcript of this plea hearing.
On June 24, 2013, U.S. Immigrations and Customs Enforcement (“ICE”)
apprehended appellant, placed him on an immigration hold, and instituted
deportation proceedings. ICE charged that appellant was subject to removal from
the United States under section 237(a)(2)(B)(i) of the Immigration and Nationality
Act, which provides that:
Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country
relating to a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), other than a single
offense involving possession for one’s own use of 30 grams or less
of marijuana, is deportable.
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8 U.S.C.S. § 1227(a)(2)(B)(i) (LexisNexis 2007). On May 12, 2014, after
appellant’s community supervision period terminated, the immigration judge
denied his application to withhold removal and ordered him removed.
On May 9, 2014, appellant, through habeas counsel, filed an application for
a writ of habeas corpus, under Texas Code of Criminal Procedure article 11.072.
Appellant submitted an affidavit in support of the writ alleging that he had only a
basic understanding of English; that his plea counsel, Stephen Ligon, did not speak
Spanish or translate the plea documents; and that counsel did not adequately advise
appellant of the immigration consequences of his plea, thereby providing
ineffective assistance of counsel under Padilla, 559 U.S. at 374, 130 S. Ct. at 1486,
and rendering his plea involuntary. Appellant’s affidavit also claimed that Ligon
was ineffective because he had advised appellant that only U.S. citizens were
entitled to a jury trial and that if he did not plead guilty, the court would find him
guilty and put him in prison. Appellant’s affidavit further alleged that if he knew
that his plea would have led to mandatory deportation, he would not have accepted
the plea deal.
The Habeas Court’s Hearing and Findings of Fact and Conclusions of Law
Before she denied appellant’s habeas application on July 2, 2014, the trial
judge stated that she had reviewed several exhibits attached to appellant’s
application, including his affidavit, as well as the court file from the 2012 plea
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hearing and live testimony at the writ hearing. The court held a writ hearing on
July 2, 2014, in which appellant, his plea counsel, Ligon, and his probation officer,
Lawrence Hoff, all testified. Appellant, testifying without an interpreter,
equivocated in his testimony about whether he could read and write English. He
testified that it was not his signature on the affidavit submitted by his habeas
counsel, but that his counsel had it read to him in Spanish. Appellant admitted that
he had signed and initialed the plea admonishment papers, acknowledging that he
could read and write English and that his attorney had advised him that his plea
would result in his deportation, but he testified that he could not read or write
English, that he spoke only a little English, and that his attorney had not explained
the immigration consequences of his plea in Spanish.
Ligon testified that he had no problems communicating with appellant in
English before the plea hearing, when he advised appellant that appellant would be
deported after his plea, and that appellant wanted the plea deal because he did not
want to go to jail. Officer Hoff similarly testified that he had no problems
communicating with appellant in English. At the end of the writ hearing, the court
found appellant’s testimony not credible and denied relief in an order, but did not
enter any separate findings or conclusions, as required by Texas Code of Criminal
Procedure Article 11.072, § (7)(a).
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After this Court issued an order of abatement, the trial court entered the
following findings of fact and conclusions of law:
1. [Appellant] spoke and understood English at the time of his
plea, and he did not suffer any language barrier sufficient enough to
cause him to enter an involuntary plea. The following evidence
supports this finding:
A. [Appellant] chose to hire Mr. Ligon knowing that he did
not speak Spanish.
B. Mr. Ligon communicated with [appellant] in English and
did not need to use the interpreter he had on staff.
C. [Appellant]’s probation officer communicated with
[appellant] in English and did not have to rely on
Spanish-speaking colleagues to communicate with him.
2. Mr. Ligon advised [appellant] that a guilty plea in this case
would result in deportation from this country, exclusion from
admission into this country or denial of naturalization. That advice
was memorialized in the plea admonishment form.1
3. Mr. Ligon did not tell [appellant] that he had no right to a trial
and that he had to plead guilty or risk imprisonment.
4. [Appellant] wanted to plead guilty and take a deferred
adjudication to avoid jail.
5. [Appellant] pled guilty freely and voluntarily with knowledge
of the immigration consequences of his plea.
1
Although the record does not include this document, the habeas court took
judicial notice of the plea papers at the writ hearing and ordered the trial
clerk to file all the plea papers in its Findings, Conclusions and Order.
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Therefore, the Court concludes that [appellant]’s plea was voluntarily
entered with full knowledge of the immigration consequences of his
plea, and he is entitled to no relief.
DISCUSSION
In his notice of appeal, appellant’s appellate counsel contended that
appellant’s habeas counsel’s submission of an English-only affidavit, instead of a
Spanish-language affidavit signed by appellant, caused significant confusion and
prejudice to appellant at the writ hearing. Thus, appellant asserts that he was
denied due process and a reasonable opportunity to contest that his plea counsel
was ineffective for failing to advise him of the immigration consequences of his
2012 guilty plea, in violation of Padilla, rendering his guilty plea involuntary.
A. Standard of Review
“An applicant seeking habeas corpus relief based on an involuntary guilty
plea must prove his claim by a preponderance of the evidence.” Ex parte
Mandujano, No. 01-12-00922-CR, 2013 WL 4007801, at *3 (Tex. App.—Houston
[1st Dist.] Aug. 6, 2013, no pet.) (mem. op., not designated for publication) (citing
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)). The applicant bears
the burden to establish that a reasonable probability exists that, but for counsel’s
advice, he would not have pleaded guilty and would have insisted on going to trial.
See Ex parte Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012, pet. ref’d).
Further, the applicant must show that a decision to reject the plea bargain would
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have been rational under the circumstances. See id. (citing Padilla, 559 U.S. at
372, 130 S. Ct. at 1485).
When reviewing a trial court’s ruling on a habeas corpus application, we
view the evidence presented in the light most favorable to that ruling, and we must
uphold that ruling absent an abuse of discretion. See Ex parte Mandujano, 2013
WL 4007801, at *3 (citing Ex parte Ali, 368 S.W.3d at 831). We “afford almost
total deference to a trial court’s fact findings in habeas proceedings, especially
when those findings 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 similarly defer to the trial court’s
application of the law to the facts if that resolution turns upon credibility and
demeanor determinations. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). If the resolution of the ultimate question turns on an application of
law, we review the determination de novo. See Ex parte Mandujano, 2013 WL
4007801, at *3.
In an article 11.072 habeas case, the trial judge is the sole finder of fact. See
Ex parte Obi, No. 01-12-01003-CR, 2014 WL 4748116, at *5 (Tex. App.—
Houston [1st Dist.] Sept. 25, 2014, pet. filed) (citing Ex parte Garcia, 353 S.W.3d
785, 788 (Tex. Crim. App. 2011)). An appellate court reviews the evidence
presented in the light most favorable to the trial court’s ruling, regardless of
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whether the court’s findings are implied or explicit, or based on affidavits or live
testimony, provided they are supported by the record. See Ex parte Murillo, 389
S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Nevertheless, while we give deference to any underlying historical fact
determinations made by the habeas court, we review the ultimate question of
prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),
de novo. See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005); Ex
parte Murillo, 389 S.W.3d at 927. We will uphold the habeas court’s judgment as
long as it is correct under any theory of law applicable to the case. See Ex parte
Murillo, 389 S.W.3d at 926.
B. Applicable Law
In Padilla, the Supreme Court held that the Sixth Amendment requires an
attorney for a criminal defendant to provide advice about the risk of deportation
arising from a guilty plea. 559 U.S. at 374, 130 S. Ct. at 1486. Because appellant
entered his plea after the United States Supreme Court decided Padilla, this is not a
case in which retroactivity bars Padilla’s application. See Ex parte Mandujano,
2013 WL 4007801, at *2 (citing Chaidez v. United States, 133 S. Ct. 1103, 1113
(2013)); Ibarra v. State, No. 01-12-00292-CR, 2013 WL 1163967, at *2 (Tex.
App.—Houston [1st Dist.] Mar. 21, 2013, pet. ref’d).
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The two-pronged Strickland test applies to challenges to guilty pleas, such as
the one in the present case, premised on ineffective assistance of counsel. See Ex
parte Obi, 2014 WL 4748116, at *5 (citing Hill v. Lockhart, 474 U.S. 52, 58, 106
S. Ct. 366, 370 (1985)). Thus, to be entitled to relief, appellant was required to
show by a preponderance of the evidence that (1) trial counsel’s performance fell
below the objective standard of reasonableness and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S.
Ct. at 2064, 2068.
“In the Padilla context, when the prejudice prong of the Strickland test is
dispositive, we need address only that prong on appeal.” Ex parte Obi, 2014 WL
4748116, at *5 (quoting Ex parte Murillo, 389 S.W.3d at 927). We make the
prejudice inquiry on a case-by-case basis, considering the circumstances
surrounding the plea and the gravity of the alleged failure. See id. (citation
omitted). “[I]t is not necessary to determine whether trial counsel’s representation
was deficient if appellant cannot satisfy the second Strickland prong.” Id. (quoting
Ex parte Murillo, 389 S.W.3d at 927).
C. Analysis
At the writ hearing, appellant and his plea counsel disputed how well
appellant could speak English at the time of his plea, and whether plea counsel had
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advised him about the effect of a guilty plea on his immigration status. Appellant
equivocated in his own testimony on these issues, admitting that he had initialed
the plea admonishment form that acknowledged he could read and write English
and that he was advised by his attorney he would be deported if he pleaded guilty.
The trial court found that appellant spoke and understood English at the time of the
plea hearing, that Ligon had advised appellant that a plea would result in his
deportation, and, thus, that appellant had pleaded guilty voluntarily with the full
knowledge of the immigration consequences of his plea. We defer to the trial
court’s finding on these issues, as their resolution turns on an evaluation of the
witnesses’ credibility and demeanor. See Ex parte Amezquita, 223 S.W.3d at 367.
With respect to the second prong of Strickland, the record supports the trial
court’s finding that appellant opted for the plea agreement because he wanted to
take community supervision to avoid going to jail. See Ex parte Mandujano, 2013
WL 4007801, at *4. Accordingly, the trial court acted within its discretion in
denying appellant habeas relief and we overrule his sole issue.
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CONCLUSION
We affirm the order of the trial court denying habeas relief. We dismiss any
pending motions as moot.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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