Document Info

DocketNumber: 13-14-00501-CR

Filed Date: 1/15/2015

Status: Precedential

Modified Date: 4/17/2021

  •                                                                                          ACCEPTED
    13-14-00501-cr
    THIRTEENTH COURT OF APPEALS
    CORPUS CHRISTI, TEXAS
    1/15/2015 12:52:02 PM
    DORIAN RAMIREZ
    13-14-00501-CR                                                                               CLERK
    NO. 2014-DHC-2879
    IN THE THIRTEENTH COURT OF APPEALS
    FILED IN
    13th COURT OF APPEALS
    CORPUS CHRISTI,         CORPUS
    TEXAS      CHRISTI/EDINBURG, TEXAS
    1/15/2015 12:52:02 PM
    DORIAN E. RAMIREZ
    Clerk
    SAMUEL OSVALDO GARCIA,
    Appellant,
    V.
    THE STATE OF TEXAS,
    Appellee,
    BRIEF OF APPELLANT
    On appeal from the 357th Judicial District Court of Cameron County, Texas
    Honorable Oscar X. Garcia, Judge Presiding
    Rafael de la Garza III, Esq.
    Texas Bar No. 24076343
    De la Garza & Ramirez
    4943 South Jackson Rd.
    Edinburg, Texas 78539
    Phone: (956) 533-1426
    Facsimile: (956) 284-0518
    ORAL ARGUMENT REQUESTED
    1
    IDENTITY OF PARTIES & COUNSEL
    Appellant:                         Samuel Osvaldo Garcia
    Appellee:                          The State of Texas
    Trial counsel for Appellant:       Rafael de la Garza
    Texas Bar No. 24076343
    4943 South Jackson Road
    Edinburgh, Texas 78539
    Appellant counsel for Appellant:   Rafael de la Garza
    Texas Bar No. 24076343
    Ricardo Ramirez
    Texas Bar No. 24079177
    4943 South Jackson Road
    Edinburg, Texas 78539
    Counsel for Appellee:              Honorable Luis Saenz
    Assistant District Attorney
    964 East Harrison Street
    Brownsville, Texas 78520
    2
    TABLE OF CONTENTS
    Page
    Identity of Parties & Counsel                             2
    Table of Contents                                         3
    Index of Authorities                                      4-5
    Statement of the Case                                     5
    Issues Presented                                          5
    Statement of Facts                                        6-8
    Summary of Argument                                       8-9
    Standard of Review                                        9
    Arguments & Authorities                                   10-20
    Prayer for Relief                                         20
    Certificate of Service                                    21
    Certificate of Compliance                                 21
    Appendix                                                  22
    A.    Final Order, Executed on September 5, 2014
    B.    Affidavit of Samuel Oswaldo Garcia
    C.    Affidavit of Attorney Daniel Sanchez
    3
    INDEX OF AUTHORITIES
    Page
    United States Constitution
    Sixth Amendment                                                11, 13, 14
    Statutes
    Texas Health and Safety Code Section 481.112                   6
    8 USC Section 1101(a)(43)                                      12
    8 USC Section 1101(a)(43)(B)                                   12-13
    8 USC Section 1229b                                            12
    Cases
    Chaidez v. United States, 
    130 S. Ct. 1103
    (2013)                10, 11, 19
    Hill v. Lockhart, 
    106 S. Ct. 366
    (1985)                         16
    Johnson v. State, 
    169 S.W.3d 223
                                  16-17
    Kniatt v. State, 
    206 S.W.3d 657
    , (Tex. Crim. App. 2006).       9
    Lyles v. State, 
    850 S.W.2d 497
    , (Tex. Crim. App. 1993).        9
    London v. Plasencia, 
    459 U.S. 21
                                  18
    McMann v. Richardson, 
    397 U.S. 759
                                15
    Montgomery v. State, 
    810 S.W.2d 372
    , (Tex. Crim. App. 1990).   9
    Padilla v. Kentucky, 
    559 U.S. 356
    (2010)                         10, 11, 13
    United States v. Campbell, 
    778 F.2d 764
                           10
    United States v. Kwan, 
    407 F.3d 1005
                              10, 15
    4
    United States v. Wade, 
    88 U.S. 218
    , 227-28                             14-15
    Strickland v. Washington, 
    466 U.S. 668
    (1984).                         14, 15, 16,
    18, 19
    STATEMENT OF THE CASE
    This case concerns Appellant’s “Application for Post-Conviction Writ of
    Habeas Corpus Seeking Relief in Accordance with Article 11.072 of the Code of
    Criminal Procedure,” which was filed in the 357th Judicial District Court, Cameron
    County, Texas, on May 8, 2014. See Index Pg. 40-48. Appellant filed same seeking
    to vacate a criminal conviction. 
    Id. The State
    of Texas filed a response to
    Appellant’s application on June 5, 2014. See Index Pg. 49-60. Then, on August 4,
    2014, the district court denied Appellant’s application and this appeal followed. See
    Index Pg. 66.
    ISSUES PRESENTED
    Issue 1: Whether Mr. Garcia can proceed on an ineffective assistance claim
    pursuant to the Sixth Amendment of the United States Constitution, on the ground
    that he was affirmatively misadvised of the immigration consequences of his plea,
    notwithstanding the ruling rendered in Padilla v. Kentucky, 
    130 S. Ct. 1473
    (U.S.
    2010).
    Issue 2: Whether the trial court abused its discretion in denying Mr. Garcia’s habeas
    petition on the bases that former counsel’s affirmative misadvise regarding
    immigration consequences, constitutes ineffective assistance of counsel, in violation
    of the Sixth Amendment of the United States Constitution, which would require
    vacature of the underlying conviction.
    5
    STATEMENT OF FACTS
    Samuel Osvaldo Garcia (hereinafter, “Mr. Garcia”) is a forty five (45) year
    old Guatemalan citizen who obtained status as a Lawful Permanent Resident
    (“LPR”) of the United States in 1987. See Appendix B – Affidavit of Samuel Oswaldo
    Garcia. He has been residing in the United States since he was ten (10) years old.
    
    Id. On August
    23, 2002, Mr. Garcia was arrested for “Possession of a Controlled
    Substance with Intent to Deliver,” in violation of Texas Health and Safety Code
    Section 481.112. See Index Pg. 9. He was indicted on September 11, 2002 and
    counsel was appointed to represent him. See Index Pg. 12. Former counsel met with
    Mr. Garcia and advised him that the state was offering probation. See Appendix B –
    Affidavit of Samuel Oswaldo Garcia. Mr. Garcia inquired regarding the immigration
    consequences of his plea as follows:
    “I asked my attorney if I would be deported if I pled guilty to the charge and
    got probation. He said that I would probably be okay. He said that the charge
    would probably not result in deportation.”
    Mr. Garcia relied on his counsel’s advice and entered a plea of guilty to the charge
    on January 29, 2003, in cause number 02CR 1042. 
    Id. Mr. Garcia
    was sentenced to
    ten (10) years confinement in the Texas Department of Criminal Justice, which term
    was suspended in lieu of placement on community supervision for ten (10) years.
    See Index Pg. 17.
    6
    Immigration and Customs Enforcement (ICE) picked up Mr. Garcia soon
    thereafter and presented him before an immigration judge. See Appendix B –
    Affidavit of Samuel Oswaldo Garcia. The immigration judge rescinded Mr. Garcia’s
    LPR status and deported him as a result of his conviction for “Possession of a
    Controlled Substance with Intent to Deliver.” 
    Id. If Mr.
    Garcia had known that he
    was going to be deported as a result of his plea of guilty, he would have pled not
    guilty and fought his case. 
    Id. On May
    8, 2014, Mr. Garcia filed his Petition for Writ of Habeas Corpus in
    the Trial Court. See Index Pg. 40-48. Mr. Garcia submitted his affidavit as well as
    the affidavit of former counsel Daniel Sanchez, in support of his Petition. See
    Appendix B – Affidavit of Samuel Oswaldo Garcia and Appendix C – Affidavit of
    Attorney Daniel Sanchez. Mr. Garcia’s affidavit explains he asked Mr. Sanchez
    about losing his LPR status and Mr. Sanchez stated “he would probably be okay,
    and the charge would probably not result in deportation.” See Appendix B – Affidavit
    of Samuel Oswaldo Garcia. Mr. Garcia also states he would not have waived his
    right to a trial if he had been apprised of the certain loss of his LPR status upon
    conviction. 
    Id. Mr. Sanchez’s
    affidavit is also in the record. Appendix C – Affidavit
    of Attorney Daniel Sanchez. Mr. Sanchez’s affidavit states his advice was consistent
    with the admonishments at Article 26.10 of the Texas Code of Criminal Procedure,
    7
    and that he does not remember any other substantive conversation in the moments
    before he accompanied Mr. Garcia in the courtroom. 
    Id. On June
    5, 2014, the State of Texas filed its’ opposition to Mr. Garcia’s
    Petition for Writ of Habeas Corpus. See Index Pg. 49-60. In its’ opposition, the State
    of Texas urged the Trial Court that Attorney Sanchez’s representation was not
    deficient. 
    Id. Then, on
    August 4, 2014, the Presiding Judge of the 357th Judicial District
    Court denied the Application for Post-Conviction Relief. See Index Pg. 60 and
    Appendix A. However, the Presiding Judge failed to specify the bases for the denial.
    
    Id. Mr. Garcia
    filed his Notice of Appeal on August 15, 2014. See Index Pg. 66.
    SUMMARY OF ARGUMENT
    Mr. Garcia has been an LPR since 1987 and has been residing in the United
    States since he was a child. See Appendix B – Affidavit of Samuel Oswaldo Garcia.
    He was arrested for “Possession of a Controlled Substance with Intent to Deliver”
    in 2003. 
    Id. Mr. Garcia
    ’s former counsel advised him to enter a plea of guilty. 
    Id. Former counsel
    also advised Mr. Garcia that his plea of guilty would not result in
    his deportation.    
    Id. Former counsel
    ’s advice regarding the immigration
    consequences of the plea constituted affirmative misadvise since the conviction
    immediately rendered Mr. Garcia an aggravated felon subject to deportation from
    the United States. 
    Id. Former counsel
    did not have a duty to advise Mr. Garcia of
    8
    the fact that his plea would result in deportation. Nonetheless, former counsel was
    obligated to not affirmatively misadvise and / or actively mislead Mr. Garcia on any
    matter, however related to criminal prosecution, including immigration
    consequences.    Former counsel’s affirmative misadvise constitutes ineffective
    assistance of counsel, pursuant to the Sixth Amendment of the United States
    Constitution.
    As such, the Trial Court abused its discretion in denying Mr. Garcia’s habeas
    petition and Mr. Garcia hereby respectfully requests that this Court reverse the
    district court’s final order and remand this case for further proceedings.
    STANDARD OF REVIEW
    The applicant for a writ of habeas corpus based on an involuntary guilty plea
    has the burden of proving his allegations by a preponderance of the evidence. See
    Kniatt v. State, 
    206 S.W.3d 657
    , 664 (Tex. Crim. App. 2006). The Texas Court of
    Criminal Appeals will uphold the decision of the Trial Court absent an abuse of
    discretion. The Trial Court abuses its discretion when the court acts without
    reference to any guiding rules or principles, or arbitrarily or unreasonably, or when
    its’ decision lies outside of the zone of reasonable disagreement. See Lyles v. State,
    
    850 S.W.2d 497
    , 502 (Tex. Crim. App. 1993), Montgomery v. State, 
    810 S.W.2d 372
    , 391 (Tex. Crim. App. 1990).
    9
    ARGUMENTS & AUTHORITIES
    I.    Mr. Garcia Can Proceed With His Claim of Ineffective Assistance of
    Counsel Pursuant to Chaidez Since He Was Affirmatively Misadvised
    Concerning The Immigration Consequences of His Guilty Plea.
    a. Current Law Regarding Affirmative Misadvise
    In 2010, Padilla v. Kentucky, 
    130 S. Ct. 1473
    (U.S. 2010), held that trial
    counsel must inform their clients of the possible immigration consequences of
    pleading guilty. Then, in 2013 the case of Chaidez v. United States, 
    133 S. Ct. 1103
    (2013), held that “…defendants whose final convictions became final prior to
    Padilla…cannot benefit from the holding of Padilla.” 
    Id. at 1113.
    However, Chaidez made clear that individuals like Mr. Garcia can bring
    ineffective assistance claims on the bases of affirmative misadvise:
    “…true enough, three federal circuits (and a handful of state courts)
    held before Padilla that misstatement about deportation could support
    an ineffective assistance claim. But those decisions reasoned only that
    a lawyer may not affirmatively misrepresent his expertise or otherwise
    actively mislead his client on any important matter, however related to
    a criminal prosecution. See, e.g., United States v. Kwan, 
    407 F.3d 1005
    ,
    1015-1017 (C.A.9 2005). They co-existed happily with precedent,
    from the same jurisdictions (and almost all others), holding that
    deportation is not “so unique as to warrant an exception to the general
    rule that a defendant need not be advised of the collateral consequences
    of a guilty plea.” See United States v. Campbell, 
    778 F.2d 764
    , 769
    (C.A.11 1985). So at most, Chaidez has shown that a minority of courts
    recognized a separate rule for material representations, regardless
    whether they concerned deportation or another collateral matter. See
    Chaidez at 13.
    10
    As such, Chaidez left open the possibility of ineffective assistance claims
    based on affirmative misadvise of former counsel. Chaidez established that claims
    based on misstatements about deportation are sufficient to support a claim for
    ineffective assistance of counsel under the Sixth Amendment of the United States
    Constitution.
    In this case, Mr. Garcia’s conviction became final in 2003, before the Padilla
    holding was handed down in 2010. See Appendix B – Affidavit of Samuel Oswaldo
    Garcia. As such, Padilla is not applicable and former counsel did not have a duty
    to advise Mr. Garcia of the immigration consequences of pleading guilty. However,
    Chaidez clearly provides that a claim of ineffective assistance of counsel may be
    alleged when a defendant is affirmatively misadvised concerning immigration
    consequences.
    b. Because the Relevant Immigration Statutes Clearly Provide For
    Automatic Deportation Upon Conviction For An Offense that
    Involves Drug Trafficking, Former Counsel’s Statements to Mr.
    Garcia Constitute Affirmative Misadvise.
    The evidence in the record establishes that Mr. Garcia inquired regarding the
    immigration consequences of his plea and former counsel advised as follows:
    “I asked my attorney if I would be deported if I pled guilty to the charge
    and got probation. He said that I would probably be okay. He said
    that the charge would probably not result in deportation.”
    See Appendix B – Affidavit of Samuel Oswaldo Garcia.
    11
    Former counsel’s statement to Mr. Garcia, indicating that his plea was
    unlikely to result in deportation, was entirely misleading. This is because the
    relevant immigration statutes clearly provide that Lawful Permanent Residents
    (LPR’s) with drug convictions, that involve an element of trafficking, are considered
    aggravated felonies that make LPR’s automatically deportable.           Because the
    immigration statutes clearly define Mr. Garcia’s underlying conviction as one that
    constitutes an “aggravated felony,” former counsel’s statements constitute
    affirmative misadvise.
    LPR’s that are seeking relief from deportation may seek a discretionary
    waiver from the immigration judge. The elements that must be established to obtain
    relief are as follows:
    Section 240A Cancellation of Removal; Adjustment of Status
    [8 U.S.C. 1229b]
    (a) Cancellation of removal for certain permanent residents.—The
    Attorney General may cancel removal in the case of an alien who
    inadmissible or deportable from the United States if the alien--
    (1) Has been an alien lawfully admitted for permanent residence for not
    less than 5 years,
    (2) Has resided in the United States continuously for 7 years after
    having been admitted in any status, and
    (3) Has not been convicted of any aggravated felony.
    The term “aggravated felony” referred to above is defined under 8 U.S.C. §
    1101(a)(43). The statute contains a laundry list of offenses that constitute an
    aggravated felony. Specifically, 8 U.S.C § 1101(a)(43)(B), provides:
    12
    (B) Illicit trafficking in a controlled substance (as defined in section 102 of
    the Controlled Substances Act), including a drug trafficking crime (as defined
    in section 924(c) of title 18, United State Code).
    The immigration law on this issue is clear and succinct – an LPR that seeks to
    cancel his deportation and preserve his status is barred from doing so if the LPR has
    a conviction for an “aggravated felony.” Mr. Garcia was convicted of “Possession
    with Intent to Deliver.” A review of the above-mentioned sections would have
    placed Mr. Garcia’s former counsel on notice that a plea of guilty would render Mr.
    Garcia an aggravated felon ineligible for cancellation of removal.
    Former counsel’s statements to Mr. Garcia that he would “probably be okay”
    and that the “charge would probably not result in deportation” are misleading and
    constitute affirmative misadvise since they convinced Mr. Garcia that he would not
    be deported. They are also misleading and constitute affirmative misadvise because
    the conviction would make Mr. Garcia an aggravated felon and subject him to
    automatic deportation.
    As such, Mr. Garcia can proceed on an ineffective assistance claim pursuant
    to the Sixth Amendment of the United States Constitution on the ground that he was
    affirmatively misadvised regarding the immigration consequences of his plea,
    notwithstanding the ruling in Padilla.
    II.   The Trial Court Abused Its Discretion in Denying Mr. Garcia’s Habeas
    Petition Since The Evidence Established That Former Counsel’s
    Affirmative Misadvise Regarding Immigration Consequences
    13
    Constitutes Ineffective Assistance of Counsel in Violation of Sixth
    Amendment of the United States Constitution.
    The record clearly establishes that the Trial Court abused its discretion in
    denying Mr. Garcia’s Habeas Petition. This is because the evidence makes it more
    likely true than not, that Mr. Garcia’s plea was not knowing, intelligent and
    voluntary, due to former counsel’s affirmative misadvise. Specifically, the evidence
    establishes that Mr. Garcia entered his plea of guilty as a result of former counsel’s
    admonishment that his plea of guilty would not result in a deportation. See Appendix
    B – Affidavit of Samuel Oswaldo Garcia.
    The affirmative misadvise of former counsel is sufficient to establish that his
    performance was deficient such that it prejudiced Mr. Garcia in the underlying case,
    in violation of his Sixth Amendment right to effective assistance of counsel. In light
    of the evidence, it is clear that the Trial Court abused its discretion when it denied
    the Habeas Petition.
    a. The Sixth Amendment of the United States recognizes the right to
    effective assistance of counsel for Mr. Garcia
    The Sixth Amendment to the United States Constitution guarantees effective
    assistance of counsel. See Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    ,
    2063, 
    80 L. Ed. 2d 674
    (1984). The right to counsel guarantees that the defendant
    will have effective assistance of counsel during all critical stages of the criminal
    proceeding. See United States v. Wade, 3
    88 U.S. 218
    , 227-28, 
    87 S. Ct. 1926
    , 18
    
    14 L. Ed. 2d 1149
    (1967). The time at which a defendant is called to enter his plea to a
    felony is considered a critical stage. See McMann v. Richardson, 
    397 U.S. 759
    , 771
    n. 14, 
    90 S. Ct. 1441
    , 
    25 L. Ed. 2d 763
    (1970). In order to prevail on a claim of
    ineffective assistance of counsel pertaining to a guilty plea, a Petitioner must
    demonstrate that (1) counsel’s performance was deficient; and (2) the deficient
    performance prejudiced his defense. See 
    Strickland, 466 U.S. at 688-93
    .
    (1) Former counsel’s performance was deficient because he chose to
    affirmatively misadvise Mr. Garcia
    Defense counsel is obligated not to misadvise or “actively mislead his client
    on any important matter, however related to a criminal prosecution.” See United
    States v. Kwan, 
    407 F.3d 1005
    , 1015-1017 (C.A. 9). Former counsel failed to abide
    by the holding of Kwan in that he effectively misled Mr. Garcia regarding the
    immigration consequences of his guilty plea.
    In this case, Mr. Garcia’s former counsel affirmatively misadvised him that
    he would “probably be okay” and that the “charge would probably not result in
    deportation.” See Appendix B – Affidavit of Samuel Oswaldo Garcia. These
    statements taken together effectively convinced Mr. Garcia that entering a plea of
    guilty to “Possession with Intent to Deliver,” would not result in his deportation. 
    Id. Former counsel
    affirmatively made these statements. 
    Id. If instead
    former counsel
    had remained silent or stated he did not know what effect Mr. Garcia’s plea would
    have on his legal status, former counsel’s performance would have been acceptable.
    15
    As mentioned in Section I.b above, an inquiry into the immigration
    consequences of Mr. Garcia’s plea would have determinatively shown that a plea
    would result in Mr. Garcia being characterized as an “aggravated felon” subject to
    automatic deportation. Alternatively, former counsel could have told Mr. Garcia
    that he did not know or would rather not advise regarding the immigration
    consequences of his plea.
    Unbeknownst to former counsel, his decision to affirmatively misadvise Mr.
    Garcia had a devastating effect on Mr. Garcia’s future – one that would only be
    remedied by revisiting former counsel’s deficient performance. 
    Id. Therefore, the
    first prong of Strickland is met.
    (2) Former counsel’s deficient performance prejudiced Mr. Garcia
    since the plea resulted in an automatic deportation
    In order to satisfy the “prejudice” requirement, “the defendant must show that
    there is a reasonable probability that, but for counsel’s errors, he would not have
    pleaded guilty and would have insisted on going to trial.” See Hill v. Lockhart, 
    106 S. Ct. 366
    (1985). To establish prejudice, a petitioner must show there is a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding
    would have been different. See 
    Strickland, 466 U.S. at 694
    . Further, as stated in
    Johnson v. State, 
    169 S.W.3d 223
    , 231 (Tex. Crim. App. 2005), the applicant need
    not show that he would have received a “more favorable disposition had he gone to
    trial.” The prejudice inquiry in the involuntary guilty plea context is designed to
    16
    ensure that the defendant would actually have availed himself of the proceeding in
    question. 
    Johnson, 169 S.W.3d at 231-32
    .
    Mr. Garcia pled guilty to “Possession with Intent to Deliver” in 2003 due to
    his former counsel’s affirmative misadvise. See Appendix B – Affidavit of Samuel
    Oswaldo Garcia. As a result of his plea, Mr. Garcia was characterized as an
    “aggravated felon” subject to automatic deportation. In his affidavit, Mr. Garcia
    testified regarding what actions he would have taken had his former counsel
    informed him of the specific consequences of his guilty plea. 
    Id. If Mr.
    Garcia
    would have known of the immigration consequences of his plea, he would not have
    pled guilty to the charge of “Possession of a Controlled Substance with Intent to
    Deliver.” 
    Id. He would
    have instead fought the case. 
    Id. The clear
    consequence of
    exile from this country and separation from one’s family are extremely important
    factors to be considered by any reasonable person, especially for an LPR like Mr.
    Garcia, who had spent the majority of his life in the United States. 
    Id. With his
    testimony, Mr. Garcia has demonstrated that but for his former counsel’s deficient
    advice regarding the specific and direct immigration consequences of his guilty plea,
    an issue of vital importance to applicant, he would not have plead guilty. 
    Id. For a
    non-citizen, serving time in prison may not be the most important factor
    to consider when taking a plea. Mr. Garcia was removed (deported) on 2003. He
    has lost his Lawful Permanent Resident Status; he will be separated from his family
    17
    and will be forever barred from returning to the United States. 
    Id. Former counsel
    ’s
    misadvise to Mr. Garcia resulted in the violation of many of his fundamental liberty
    interests. Namely, Mr. Garcia’s right to live and work in the United States and to
    interact with his family within the United States has been violated. 
    Id. In London
    v. Plasencia, 
    459 U.S. 21
    , 34 (1982), the court wrote: “Plasencia’s interest here is,
    without question, a weighty one. He stands to lose the right to stay and live and work
    in this land of freedom…further he may lose the right to rejoin immediate family, a
    right that ranks high among the interest of the individual.” 
    Id. at 34.
    Mr. Garcia has
    clearly been harmed by his former counsel’s affirmative misadvise. As such, the
    second prong of Strickland has been met.
    b. Because Mr. Garcia has demonstrated that former counsel’s
    deficient performance prejudiced him, a claim of ineffective
    assistance of counsel is warranted pursuant to Strickland.
    As mentioned in Strickland, a Court deciding an ineffective assistance claim
    must judge the “reasonableness of counsel’s challenged conduct on the facts of the
    particular case, viewed as of the time of counsel’s conduct.” 
    See 466 U.S. at 690
    .
    The defendant must identify the acts and / or omissions that are alleged to not have
    been the result of reasonable professional judgment. 
    Id. The Court
    must then
    determine whether the identified acts and / or omissions of counsel were outside the
    “wide range of professionally competent advice.” 
    Id. 18 Mr.
    Garcia relied on the affirmative misadvise of his former counsel that he
    would “probably be okay” and that the “charge would probably not result in
    deportation.” See Appendix B – Affidavit of Samuel Oswaldo Garcia. This in and
    of itself constitutes a deficient performance by former counsel, since it mislead Mr.
    Garcia to enter a guilty plea. Former counsel’s affirmative misstatements caused
    Mr. Garcia to be prejudiced in that his guilty plea directly caused his deportation.
    
    Id. As a
    result, Mr. Garcia faced significant and direct consequences to his
    immigration status in the United States. 
    Id. Specifically, Mr.
    Garcia was exiled
    from this country and will not be able to immigrate to the United States. 
    Id. Chaidez makes
    clear that Mr. Garcia can bring a claim for ineffective
    assistance of counsel for affirmative misstatements. Further, the evidence clearly
    demonstrates that former counsel’s affirmative misadvise constitutes ineffective
    assistance of counsel, in violation of the Sixth Amendment of the United States
    Constitution, as described in Strickland. Accordingly, Mr. Garcia respectfully
    requests that the underlying conviction for “Possession of a Controlled Substance
    with Intent to Deliver” be vacated.
    Mr. Garcia respectfully requests that this Court make a determination that the
    Trial Court abused its discretion in denying his Habeas petition since the evidence
    clearly establishes that former counsel’s affirmative misadvise regarding the
    19
    immigration consequences of his plea constitute ineffective assistance in violation
    of the Sixth Amendment of the United States Constitution.
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, Mr. Samuel Osvaldo Garcia
    prays that this Court reverse the district court’s final order and remand this case for
    further proceedings. Alternatively, Mr. Samuel Osvaldo Garcia prays that this Court
    remand for further proceedings to allow Mr. Samuel Osvaldo Garcia to testify before
    the Court and to compel the district court to enter findings of fact and conclusions
    of law.
    Respectfully submitted,
    /s/ Rafael de la Garza
    Rafael de la Garza, Esq.
    Texas Bar No. 24076343
    De La Garza & Ramirez
    4943 South Jackson Road
    Edinburg, Texas, 78539
    (956) 533-1426
    (956) 284-0518
    Attorney for Appellant
    Samuel Osvaldo Garcia
    20
    CERTIFICATE OF SERVICE
    I certify that I have served a true and correct copy of the above and
    foregoing, Brief of Appellant, was served on the following counsel on December
    31, 2014:
    VIA ELECTRONIC FILING
    Honorable Luis Saenz
    Assistant District Attorney
    964 East Harrison Street
    Brownsville, Texas 78520
    /s/ Rafael de la Garza
    Rafael De La Garza, Esq.
    COUNSEL FOR APPELLANT
    CERTIFICATE OF COMPLIANCE
    This document complies with the typeface requirements of Tex. R. App. P.
    9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
    point for text and 12-point for footnotes. This document also complies with
    the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
    3,641 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
    VIA ELECTRONIC FILING
    Honorable Luis Saenz
    Assistant District Attorney
    964 East Harrison Street
    Brownsville, Texas 78520
    /s/ Rafael de la Garza
    Rafael De La Garza, Esq.
    COUNSEL FOR APPELLANT
    12/31/2014
    Date
    21
    NO. 2014-DHC-2879
    IN THE THIRTEENTH COURT OF APPEALS
    CORPUS CHRISTI, TEXAS
    SAMUEL OSVALDO GARCIA,
    Appellant,
    V.
    THE STATE OF TEXAS
    Appellee,
    APPENDIX TO APPELLANT’S BRIEF
    A. Final Order, Executed on September 5, 2014
    B. Affidavit of Samuel Oswaldo Garcia
    C. Affidavit of Attorney Daniel Sanchez
    22
    .•                                           '                                            ...)
    \.;I
    CAUSE NO. 2002-CR-1042-E
    EX PARTE                                                      §       IN THE DISTRICT COURT
    &
    §       352TH JIIDICIAI DISTRICT
    §
    SAMUEL OSVALDO GARCIA                                         §     CAMERON COUNTY, TEXAS
    ORDER ON APPLICATION FOR POST -CONVICTION WRIT OF HABEAS CORPUS
    SEEKING RELIEF IN ACCORDANCE WITH ARTICLE 11.072 OF THE CODE OF
    CRIMINAL PROCEDURE
    On this day, came on for consideration, before this Court, the Post-Conviction Writ of
    Habeas eorpus Seeking Relief in Accmdance with Article l U:l92 of the eode of eriminal
    Procedure by Samuel Osvaldo Garcia (hereinafter Applicant) on May 8, 2014. After reviewing
    said Application, together with the evidence attached thereto, and the Response of the State in
    opposition thereto, and all other evidence brought before this Court, the Court is of th€ opinion
    that said Application should be denied.
    THEREFORE, this Court DENIES any and all relief requested in Applicant's
    Application.
    -:.~
    Signed on the)                    day of       ``w.2014.
    0> \) / / 81 /
    ~     I
    .;2LJ   I~                  ELIZABETH E. MAZA
    MY COMMISSION EXPIRES
    January 31, 2015
    4
    AFFIDAVIT OF ATTORNEY DANIEL SANCHEZ
    STATE OF TEXAS                               §
    COUNTY OF CAMERON                            §
    "My name is Daniel A. Sanchez. I am over twenty-one years of age and have never been
    convicted of a felony or a misdemeanor involving moral turpitude. I have personal knowledge of
    the statements herein made. I am fully competent to testify to the matters stated herein, and the
    matters stated herein are true and correct.
    I have been a duly licensed attorney in the State of Texas since 1998. I represented
    Samuel Oswaldo Garcia on a criminal case in Hidalgo County, Texas in 2002. Mr. Garcia had a
    pending charge for Possession of a Controlled Substance with Intent to Deliver 4 grams or more
    but less than 200 grams, out of the 35]1h Judicial District Court, Cameron County, Texas, on or
    about December 5, 2002.
    After having discussed the offense pending against Mr. Garcia, Mr. Garcia made a
    decision that he would be entering a plea of guilty to the above-mentioned charge. Prior to
    entering the plea, I discussed all plea paperwork with Mr. Garcia. Specifically, I discussed the
    document titled, "Written Waiver and Consent to Stipulation of Testimony, Waiver of Jury and
    Plea of Guilty," with Mr. Garcia.
    I also explained to Mr. Garcia that ifhe was not a citizen of the United States of America,
    his 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, or a
    combination of the any of the aforementioned options.
    I do not remember discussing anything else with Mr. Garcia. Mr. Garcia pled guilty to
    the charged offense thereafter.
    I swear under penalty of perjury that the above is true and correct to the best of my
    knowledge and belief.
    FURTHER THE AFFIANT SAYETH NOT.
    :Jiii::sic~
    SWORN AND SUBSCRIBED to me, the undersigned authority, on this the             'd- S   day
    of     T~           , 2014.
    KRYSTAL MALLEN
    MY COMMISSION EXPIRES
    Aprll 13, 2015
    My Commission Expires            b4/13/~1s
    1