                                                                                      ACCEPTED
                                                                                  14-15-00831-CR
                                                                  FOURTEENTH COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            12/28/2015 1:25:07 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                        CASE NO. 14-15-00831-CR

                                                            FILED IN
                                                     14th COURT OF APPEALS
                       IN THE COURT OF APPEALS          HOUSTON, TEXAS
                 FOURTEENTH SUPREME JUDICIAL DISTRICT12/28/2015 1:25:07 PM
                           HOUSTON, TEXAS            CHRISTOPHER A. PRINE
                                                              Clerk



               EX PARTE ANTHONY GILLAN GASTON,
                           Appellant

                                     V.

                         THE STATE OF TEXAS,
                               Appellee


On Appeal from the County Criminal Court at Law No. 6 of Harris County, Texas
                            Cause No. 1983767


                        BRIEF FOR APPELLANT


ORAL ARGUMENT REQUESTED                   BRITTANY CARROLL LACAYO
                                          TBA No. 24067105
                                          212 Stratford St.
                                          Houston, Texas 77006
                                          Telephone: (713) 504-0506
                                          Facsimile: (832) 442-5033
                                          Email: Brittany@bcllawfirm.com

                                          COUNSEL FOR APPELLANT
                    IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                      Anthony Gillan Gaston

PRESIDING JUDGE:                Hon. Larry Standley
                                County Criminal Court at Law No. 6
                                1201 Franklin St., 7th Floor
                                Houston, Texas 77002

TRIAL PROSECUTOR:               Devon Anderson
                                District Attorney
                                1201 Franklin St.
                                Houston, Texas 77002

DEFENSE COUNSEL:                Ira Chenkin
                                Attorney at Law
                                8441 Gulf Fwy, Suite 600
                                Houston, Texas 77017

DEFENSE COUNSEL:                Michael Moore
(WRIT OF HABEAS CORPUS)         Attorney at Law
                                P.O. Box 920552
                                Houston, Texas 77292-0552

STATE’S COUNSELS:               Bryan V. Acklin and
(WRIT OF HABEAS CORPUS)         Audia Moses
                                Harris County Assistant District Attorney
                                1201 Franklin St.
                                Houston, Texas 77002

STATE’S COUNSEL ON APPEAL:      Alan Curry
                                Assistant Harris County District Attorney
                                1201 Franklin St.
                                Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:      Brittany Carroll Lacayo
                                Attorney at Law
                                212 Stratford St.
                                Houston, Texas 77006

                                   ii
TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iv

Statement of the Case ............................................................................................... 1

Request for Oral Argument ..................................................................................... 2

Issue Presented.......................................................................................................... 2

         ISSUE ONE: The trial court erred in denying Appellant’s First
         Amended Application for Writ of Habeas Corpus.

Statement of Facts..................................................................................................... 2

Summary of the Argument ....................................................................................... 5

Argument .................................................................................................................. 5

Prayer ...................................................................................................................... 10

Certificate of Compliance ....................................................................................... 11

Certificate of Service .............................................................................................. 12




                                                              iii
                                         INDEX OF AUTHORITIES

Cases

Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005)....................................... 7

Cantu v. State, 817 S.W.2d 74 (Tex. Crim. App. 1991) ........................................... 6

Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005).................................. 6

Fimberg v. State, 922 S.W.2d 205 (Tex. App. – Houston [1st Dist.] 1996, pet. ref’d)7

Hill v. Lockhart, 474 U.S. 52 (1985) ........................................................................ 7

I.N.S. v. St. Cyr, 533 U.S. 289, 323 (2001) ............................................................... 8

Johnson v. State, 169 S.W.3d 223 (Tex. Crim. App. 2005) ..................................... 7

Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) ......................................... 5

Lyles v. State, 850 S.W.2d 497 (Tex. Crim. App. 1993) .......................................... 6

Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) ....................................... 6

Montgomery v. State, 810 S.W.2d 373 (Tex. Crim. App. 1990)(op. on reh’g) ........ 6

Padilla v. Kentucky, 130 S. Ct. 1473 (2010) ................................................ 6, 7, 8, 9

United States v. Grammas, 376 F.3d 433 (5th Cir. 2004). ..................................... 10

Constitutions, Statutes and Other Authorities

INA § 212 (a)(2)(A)(i)(II). ....................................................................................... 8

TEX. CONST. ART. 1................................................................................................. 10

U.S. CONST. AMEND VI ........................................................................................... 10

U.S. CONST. AMEND XIV ........................................................................................ 10

                                                         iv
                              STATEMENT OF THE CASE

      On or about February 2, 2010, Appellant was arrested in Harris County,

Texas, by a deputy of the Harris County Sheriff’s Office and charged with the

misdemeanor offense of Possession of Marijuana 0-2 ounces. (Supp. C.R. at 3).

The charge was filed in the County Criminal Court at Law Number 6 of Harris

County, Texas, under cause number 1658128. (Supp. C.R. at 3). Appellant was

represented in the trial court by Attorney Ira Chenkin. (Supp. C.R. at 3). On

October 5, 2010, pursuant to a plea agreement, Appellant pled guilty to the charge,

and the court sentenced Appellant to three days in the Harris County Jail and a fine

of one hundred dollars. (Supp. C.R. at 3).

      On June 27, 2014, Appellant filed a pro se Application for Writ of Habeas

Corpus pursuant to 11.09 of the Texas Code of Criminal Procedure. (C.R. at 5). On

March 26, 2015, the trial court appointed Michael Moore to represent Appellant on

his Application for Writ of Habeas Corpus. (C.R. at 28). A First Amended

Application for Writ of Habeas Corpus was filed by Appellant’s court appointed

counsel. (Supp. C.R. at 3).

      On September 10, 2015, the trial court denied the writ of habeas corpus

without issuing any findings. (C.R. at 70)(RR. at 5). On September 22, 2015,

Appellant timely filed his written notice of appeal. (C.R. at 71).



                                          1
                           REQUEST FOR ORAL ARGUMENT
         Pursuant to TEX. R. APP. P. 39.7, Appellant requests oral argument in this

cause.

                                   ISSUE PRESENTED

         ISSUE ONE: The trial court erred in denying Appellant’s First
         Amended Application for Writ of Habeas Corpus.

                                 STATEMENT OF FACTS

         Appellant is a natural citizen of the nation of Saint Lucia. (Supp. C.R. at 3).

He entered the United States around 1989 under a student visa, which has since

expired. (Supp. C.R. at 3). He was eight years old when he moved to the United

States and considers it his home. (Supp. C.R. at 6). At the age of 28, he was single

and employed at Free Wire Communications as a Market Director. (Supp. C.R. at

6). Today, at 33 years old, he is married and the father of two boys. (Supp. CR. at

6). He is a graduate of Lee College with a 4.0 GPA and he is currently pursing a

second degree. (Supp. C.R. at 6). He is a homeowner and has been employed at

Turner Industries since 2011 as a Logistics Coordinator. (Supp. C.R. at 6).

         On or about February 2, 2010, Appellant was arrested in Harris County,

Texas, by a deputy of the Harris County Sheriff’s Office and charged with the

misdemeanor offense of Possession of Marijuana 0-2 ounces. (Supp. C.R. at 3).

The charge was filed in the County Criminal Court at Law Number 6 of Harris

County, Texas, under cause number 1658128. (Supp. C.R. at 3). Defense counsel
                                            2
Ira Chenkin represented Appellant in the trial court. (Supp. C.R. at 3). On October

5, 2010, pursuant to a plea agreement, Appellant pled guilty to the charge, and the

court sentenced Appellant to three days in the Harris County Jail and a fine of one

hundred dollars. (Supp. C.R. at 3).

      In support of his First Amended Application for Writ of Habeas Corpus,

Appellant filed an affidavit stating that if he had been informed of the possible

immigration consequences, he would have pled not guilty and taken the case to

trial. (Supp. C.R. at 7). He also filed an affidavit by his immigration attorney, Erika

L. Glenn. (Supp. C.R. at 9). Mr. Gaston retained Ms. Glenn’s services on or about

March 21, 2014. (Supp. C.R. at 9). Mr. Gaston attempted to obtain lawful

immigration status with the United States Citizenship & Immigration Services

(USCIS), by submitting an application for Permanent Residence on or about June

7, 2013. (Supp. C.R. at 9). On March 4, 2014, USCIS denied Mr. Gaston’s

application for Permanent Residence. (Supp. C.R. at 9). In the denial letter, the

following charges were identified as grounds for denial: 1.) Guilty Plea, May 13,

2002 in Brazos County, Texas, County Court at Law No. 1, and 2.) Criminal

Conviction of Marijuana, October 5, 2010, Harris County, Texas, County Criminal

Court at Law No. 6. (Supp. C.R. at 9)(C.R. at 58-59). In her affidavit, Ms. Glenn

explained,


                                          3
      Under the Immigration and Nationality Act (“INA”) drug related offenses
      are considered to be serious offenses that prevent one’s ability to adjust their
      immigration status. Therefore, USCIS determined that Mr. Gaston was not
      qualified to adjust his status. These types of offenses also create bars to an
      immigrant’s ability to pursue other forms of relief as it relates to obtaining
      lawful immigration status within the United States. Due to his criminal
      charges, Mr. Gaston falls into one or both categories and he is currently
      unable to remedy his immigration status.
      (Supp. C.R. at 9). Ms. Glenn’s affidavit also explained how a reversal of Mr.

Gaston’s criminal conviction would affect his immigration case.

      The reversal of Mr. Gaston’s 2010 criminal conviction would greatly benefit
      his immigration case, as it would allow the Department of Homeland
      Security (DHS) to reconsider their previous denial based upon the
      introduction of new evidence. The reversal would also create an avenue of
      opportunity for other types of immigration relief that currently renders him
      ineligible.
      Mr. Gaston currently has two small children and a wife. On November 20,
      2014, DHS issued a Memo on Police for the Apprehension, Detention and
      Removal of Undocumented Immigrants. In the memo, DHS described four
      categories of immigrants who would be priorities for detention and removal.
      Amongst these categories, are immigrants convicted of an offense classified
      as a felony in the convicting jurisdiction. Since the release of the memo,
      immigrants with multiple convictions have [been] deported in record
      number. If Mr. Gaston is able to get his 2010 conviction reversed, he will be
      eligible to petition USCIS to reconsider his previous application for
      Permanent Residence Status. He will also be eligible to secure a permissible
      stay of presence while his immigration case is pending. Additionally, he
      could potentially decrease his chance of immediate detention or removal,
      subject to the current DHS memo.
      (Supp. C.R. at 10).

      Attached to the State’s Original Answer as Exhibit C, Ira Chenkin filed an

affidavit stating that she informed Appellant that “a plea of guilty could and likely


                                          4
would result in collateral immigration consequences,” and specifically told him

that “he could be denied citizenship and naturalization if he pled guilty.” (C.R. at

64).

                            SUMMARY OF THE ARGUMENT

       This appeal follows the denial of an application for writ of habeas corpus

filed pursuant to 11.09 of the Texas Code of Criminal Procedure. Appellant

complains that the trial court’s denial of the application was an abuse of discretion

in that Appellant was denied the effective assistance of counsel because his

counsel failed to inform him of the immigration consequences of his plea.

Appellant was harmed because if his attorney had informed him of the immigration

consequences of his plea, he would not have pled guilty and would have insisted

on going to trial.

                                         ARGUMENT

       ISSUE ONE: The trial court erred in denying Appellant’s First
       Amended Application for Writ of Habeas Corpus.

       Appellant hereby incorporates by reference the Statement of Facts portion of

this brief as set forth at 2-5, supra.

       A. Standard of Review

       An applicant for a writ of habeas corpus bears the burden of proving his

allegations by preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657,

                                            5
664 (Tex. Crim. App. 2006). In reviewing the trial court’s ruling on a habeas-

corpus application, the court is to review the record evidence in the light most

favorable to the court’s ruling, and uphold the ruling absent an abuse of discretion.

Id. In deciding whether a trial court abused its discretion the appellate court is to

determine whether the trial court acted without reference to any guiding rules or

principles, in other words, whether the court acted arbitrarily or unreasonably.

Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). A trial court abuses

its discretion when its decision lies outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 373, 391 (Tex. Crim. App. 1990)(op. on reh’g).

the record. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).

      B. Standard of Review for Ineffective Assistance of Counsel Claims

      To show ineffective assistance of counsel, a defendant must demonstrate

both (1) that his counsel’s performance fell below an objective standard of

reasonableness; and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would be different. Padilla v.

Kentucky, 130 S. Ct. 1473 (2010); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.

Crim. App. 2005). A defendant has the burden to establish both of these prongs by

a preponderance of the evidence, and a failure to make either showing defeats his

ineffectiveness claim. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002). The court is to presume that counsel’s conduct falls within the wide range

                                          6
of reasonable professional assistance, and find counsel’s performance deficient

only if the conduct is so outrageous that no competent attorney would have

engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

      The test for challenges to the voluntariness of a plea based on ineffective

assistance has been stated as (1) whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases and if not; (2) whether 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. Hill v. Lockhart, 474 U.S. 52

(1985). If an attorney conveys erroneous information to his or her client, and the

client enters a plea of guilty based upon that information, the plea is involuntarily

based on ineffective assistance of counsel. Fimberg v. State, 922 S.W.2d 205, 207

(Tex. App. – Houston [1st Dist.] 1996, pet. ref’d). It does not have to be shown

that the case would have received a more favorable disposition had it gone to trial.

Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005). The courts should

look to whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant. Hill, 474 U.S. at 56.

      C. Deficient Performance

      Expanding on Strickland, in the United States Supreme Court Case, Padilla

v. Kentucky, the Court held that failure to inform a client that a plea carries the risk

of deportation is also ineffective assistance of counsel. 130 S. Ct. at 1486. “It is

                                           7
quintessentially the duty of counsel to provide her client with available advice

about an issue like deportation and the failure to do so “clearly satisfies the first

prong of the Strickland analysis.” Id. at 1484. Pursuant to the Supreme Court’s

ruling in Padilla, Mr. Gaston’s counsel was ineffective in providing proper

assistance of counsel. Id. at 1486. In Padilla, the defendant unknowingly pled

guilty to a crime that subjected him to deportation proceedings. Id. at 1477-78.

Like the defense attorney in Padilla, Mr. Chenkin neglected to properly advise

Appellant of deportation consequences.

      The Immigration and Nationality Act (INA) renders inadmissible to the

country any alien with a controlled substance offense, regardless of the quantity.

INA § 212 (a)(2)(A)(i)(II). “Because the drastic measure of deportation or removal

is now virtually inevitable for a vast number of noncitizens convicted of crimes,

the importance of accurate legal advice for noncitizens accused of crimes has never

been more important.” Id. at 1476. “[A]s a matter of federal law, deportation is an

integral part of the penalty that may be imposed on noncitizen defendants who

plead guilty to specified crimes.” Id. The Supreme Court based its notation that

deportation is considered a part of the penalty because it has “previously

recognized that “‘[p]reserving the client’s right to remain in the United States may

be more important to the client than any potential jail sentence.’” Id. (quoting

I.N.S. v. St. Cyr, 533 U.S. 289, 323 (2001)). As the Court pointed out in Padilla,

                                         8
“the terms of the relevant immigration statute are succinct, clear, and explicit in

defining the removal consequence for Padilla’s conviction.”

      In Padilla, the Supreme Court stated that:

      Immigration law can be complex, and it is a legal specialty of its own. Some
      members of the bar who represent clients facing criminal charges, in either
      state or federal court or both, may not be well versed in it. There will,
      therefore, undoubtedly be numerous situations in which the deportation
      consequences of a particular plea are unclear or uncertain. The duty of a
      private practitioner in such cases is more limited. When the law is not
      succinct and straightforward . . . 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. But when the deportation
      consequence is truly clear, as it was in this case, the duty to give correct
      advice is equally clear.

      Padilla, 130 S. Ct. at 1483 (emphasis added). Similarly, in this case the

statute is clear that a guilty plea to this offense would make him inadmissible.

      D. Prejudice

      Had Mr. Gaston been fully advised that his plea carried with it immigration

consequences, he would not have pled guilty; therefore, he was prejudiced. Mr.

Gaston’s stated in his initial application for habeas corpus that his attorney

“mentioned nothing to the matter of me facing immigration consequences,” or that

he would be facing deportation by pleading guilty. (C.R. at 11, 14) Mr. Gaston also

stated in his affidavit filed with the trial court that if he had been informed of the

possible immigration consequences, he would have pled not guilty and taken the

case to trial. (Supp. C.R. at 6).

                                          9
      Mr. Gaston’s plea was wholly involuntary. This representation is not only

deficient but there is a reasonable probability that the outcome would have been

different had the representation been sufficient.

      E. Conclusion

      Based on the issues raised in Appellant’s First Amended Writ of Habeas

Corpus, Appellant was denied effective assistance of counsel, before entering a

plea of guilty, as guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution and Article 1, Section 10 of the Texas Constitution. See

United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004). Accordingly, his

plea was involuntary and the trial court erred in denying his application for writ of

habeas corpus.

                                      PRAYER

      Appellant prays to the Honorable Court to consider the issue raised herein

and vacate the conviction in Cause Number 1658128 and order a new trial.

                                       Respectfully submitted,

                                       /s/ Brittany Carroll Lacayo
                                       BRITTANY CARROLL LACAYO
                                       TBA No. 24067105
                                       212 Stratford St.
                                       Houston, Texas 77006
                                       Telephone: (713) 504-0506
                                       Facsimile: (832) 442-5033

                                       COUNSEL FOR APPELLANT
                                          10
                          CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9 of the Texas Rules of Appellant Procedure, the

undersigned counsel of record certifies that Appellant’s brief contains 2,430 words.




                                      /s/ Brittany Carroll Lacayo
                                      BRITTANY CARROLL LACAYO




                                        11
                          CERTIFICATE OF SERVICE

     I certify that a copy of this Brief for Appellant has been served upon the

Harris County District Attorney’s Office via facsimile on this 28th day of

December, 2015.


                                   /s/ Brittany Carroll Lacayo
                                   BRITTANY CARROLL LACAYO




                                     12
