

Opinion issued April 26, 2012


In The
Court of
Appeals
For The
First District
of Texas
————————————
NOS. 01-11-00943-CR, 01-11-00944-CR
———————————
Kufreabasi
Ita Enyong,
Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the Harris County Criminal Court at Law No. 1
Harris County, Texas

Trial Court Case Nos. 1612023A & 1618601A
 

 
O P I N I O N
Appellant, Kufreabasi Ita
Enyong, challenges the order of the trial court
denying him the relief that he requested in his application for writ of habeas
corpus.  In his sole issue, appellant
contends that his trial counsel rendered ineffective assistance in not advising
him of the immigration consequences associated with his guilty pleas for the misdemeanor
offenses of assault of a family member[1] and violation of a protective
order.[2]      
We reverse the order of the trial
court, render an order granting appellant the relief that he requested in his
application for writ of habeas corpus, and remand the case for proceedings
consistent with our opinion.
Background
          On
February 22, 2010, appellant pleaded “guilty/nolo contendere” to the
misdemeanor offense of assault of a family member, and, pursuant to his plea
agreement with the State, the trial court deferred adjudication of his guilt
and placed him on community supervision for nine months.  Also, appellant pleaded “guilty” to the
offense of violation of a protective order, and, pursuant to his plea agreement
with the State, the trial court found appellant guilty and sentenced him to
confinement in the Harris County Jail for 100 days.[3]  The State subsequently filed a motion to
adjudicate appellant’s guilt in the assault case, and, on March 3, 2011, the
trial court found appellant guilty of the offense and sentenced him to
confinement for one year.[4]
          On
June 22, 2011, appellant was released from the Harris County Jail and remanded
to the custody of the United States Department of Homeland Security (“DHS”),
Immigration and Customs Enforcement (“ICE”). DHS records indicate that he was
deemed “removable,” and once in DHS custody, appellant was “processed” pursuant
to the United States Immigration and Nationality Act (“INA”).[5]  And, on July 6, 2011, an Immigration Judge, stating
that appellant had been “convicted of aggravated felony, assault, sentenced to
one year,” signed an order denying appellant’s “request for change in custody.”
 
          Appellant
then filed his application for writ of habeas corpus,[6] seeking to set aside his “involuntary”
pleas in both cases.  Citing the United
States Supreme Court’s recent opinion in Padilla
v. Kentucky,[7]
appellant argued that he had been denied effective assistance of counsel[8] because his trial counsel
failed to advise him of “the immigration consequences” that could result from his
guilty pleas.  Appellant asserted that he
had retained his trial counsel in a prior criminal matter that had been
initiated by his wife and dismissed in 2008. 
In 2009, he again retained the same trial counsel to represent him in the
instant assault case, also initiated by his wife.  Appellant asserted that his wife “fabricated”
the assault case after he had contacted Child Protective Services concerning her
abandonment of their children. Appellant explained that although he “did not
want to plead guilty” in the assault case, the case had been reset several
times, his bond had been revoked, and his trial counsel warned him that he
“would remain in jail for a long time waiting for trial.”  His trial counsel then advised him to “plea
to deferred adjudication probation as it would not be a conviction but would
result in dismissal as soon [he] finish[ed]
. . . probation.”  Appellant further explained
that when he inquired about whether his plea would impact his immigration
status, his trial counsel advised him that “deferred adjudication probation was
not a conviction.”  Based upon his
counsel’s advice, appellant pleaded guilty to obtain “deferred adjudication
probation.”  Appellant also asserted that
his wife had “fabricated” the allegation that he violated a protective order, to
which his trial counsel also advised that he plead guilty.  
Appellant argued that his pleas were
“not made knowingly and voluntarily” because his trial counsel did not advise
him of the immigration consequences of his pleas, did not advise him that
“deferred adjudication is a final conviction for immigration purposes or that
[he would] be deported if [he] pleaded guilty” to either charge, and “did not
discuss the immigration consequences of [his] plea at all with [him].”  Appellant asserted that he would not have pleaded
guilty to the offenses if his counsel had advised him of the immigration
consequences of his pleas. And he noted that, after he had served his time for
his convictions, he was “transferred to USDHS/ICE Detention Center where [he]
await[s] deportation as a result of the criminal convictions [he] pleaded
guilty to.”  Appellant signed a verification
of his statements.
          Appellant
also attached to his application an affidavit from his trial counsel, who
testified that he represented appellant in the assault and protective-order
cases and he did “not recall or remember discussing the immigration
consequences of his pleas, or convictions for the offenses with him outside
explaining the plea papers to him.”  
          The
trial court conducted a hearing on appellant’s application.  Neither appellant, who
remained detained, or his trial counsel appeared at the hearing.  In support of the application, appellant’s habeas
counsel referred to the affidavit testimony that appellant attached to his
application, as well as two additional affidavits that appellant signed.  Habeas counsel also referred to the affidavit
of appellant’s trial counsel.  In
response, the State asserted that appellant had “been arrested a multitude of
times in the United States” and subjected to “the United States Criminal
Justice System not once, not twice, but eight or nine times.”  Although the State acknowledged that many of
the criminal cases to which it referred were ultimately dismissed, it requested
that the trial court “infer” from the history of appellant’s arrests “some
understanding” of the situation.  The
State also asserted that there is “absolutely no evidence” that appellant’s
trial counsel told appellant that he need not be concerned with the immigration
consequences of his pleas.  Instead, the
State asserted that trial counsel, in his affidavit, specifically stated only that
he did not “recall” speaking with appellant and there is no evidence that it
was not counsel’s “common course or practice” to provide such advice.  The State further asserted that the
admonishments provided in the plea papers are “sufficient.”[9]     
The trial court took judicial
notice that appellant, on February 22, 2010, pleaded guilty to the offenses of
assault, for which he “received a nine-month deferred adjudication,” and
violation of a protective order.  The
trial court also took judicial notice that the State had subsequently filed a
motion to adjudicate appellant’s guilt of the offense of assault and he was
sentenced to confinement for one year in the Harris County Jail.  Finally, the trial court took  judicial notice that, State’s Exhibit 1, which
is a copy of the plea admonishment form used for appellant’s plea in the
assault case, is the same form that the trial court “accepted” “on all plea
bargains on February 22, 2010.”  
State’s Exhibit 1, a form entitled
“Misdemeanor Plea of Guilty/Nolo Contendere,” reflects that on February 22,
2010, appellant entered into a plea bargain agreement with the State in the
assault case.  In exchange for the deferred
adjudication of his guilt and nine months community supervision, appellant
pleaded guilty.  He acknowledged that he
had been charged with the misdemeanor offense of “Assault Family Member” for
which he faced a punishment of a fine not to exceed $4,000 and confinement for up
to one year in jail.  The form also
states, “I understand that . . . if I am not a citizen of the United States my
plea of guilty/nolo contendere may result in my deportation, exclusion from
admission to this country, or denial of naturalization under federal law.”   Above the signature for appellant’s
attorney, the form stated, “I have consulted with [appellant] . . . , to whom I
have fully explained all of the matters contained in this instrument.” 
The trial court denied appellant
the relief that he requested in his application.
Standard of Review
In a habeas corpus proceeding, an
applicant has the burden to prove his claims by a preponderance of the
evidence. Ex parte
Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003).  In reviewing a trial court’s decision to grant
or deny habeas corpus relief, we view the facts in the light most favorable to
the trial court’s ruling.  Id. at 819.   “We
afford almost total deference to a trial court’s factual findings in habeas
proceedings, especially when those findings are based upon credibility and
demeanor.”  Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim.
App. 2004).  We afford the same
amount of deference to the trial court’s ruling on “application of law to fact
questions,” if the resolution of those ultimate questions turns on an
evaluation of credibility and demeanor.  Ex parte Peterson, 117 S.W.3d at 818.  However, if the resolution of those ultimate
questions turns on an application of legal standards absent any credibility
issue, we review the determination de novo.  Id.
 
Ineffective Assistance
          In his
sole issue, appellant argues that his trial counsel rendered ineffective
assistance because he failed to advise appellant that his plea of guilty to the
offense of assault of a family member for deferred adjudication constitutes “a
conviction that renders him deportable,” his conviction “had a possibility” of being
considered “an aggravated felony for immigration purposes” if his “probation
[was] revoked and he [was] sentenced up to one year in jail,” and his plea of
guilty to violation of a protective order renders him deportable.
An applicant seeking habeas corpus
relief based upon ineffective assistance of counsel must, by a preponderance of
the evidence, show (1) his counsel’s representation “fell below an 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.”[10]  Padilla v. Kentucky,  – U.S. –, 130 S. Ct. 1473, 1482 (2010) (quoting Strickland v. Washington,
466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)); Ex parte Chandler, 182 S.W.3d 350, 353
(Tex. Crim. App. 2005).  A reasonable
probability is a “probability sufficient to undermine confidence in the
outcome.”  Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068. In reviewing counsel’s performance, we look to the totality of
the representation to determine the effectiveness of counsel, indulging a
strong presumption that his performance falls within the wide range of
reasonable professional assistance or trial strategy.  Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).  A failure to make a showing under either
prong defeats an ineffective-assistance claim.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.
App. 2003).  Moreover, allegations
of ineffectiveness must be firmly founded in the record.  Bone v.
State, 77 S.W.3d 828, 833 & n. 13 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999).
“Before deciding whether to plead
guilty, a defendant is entitled to the effective assistance of competent
counsel.”  Padilla, 130 S. Ct. at 1480–81.  Courts have “long recognized that the
negotiation of a plea bargain is a critical phase of litigation for purposes of
the Sixth Amendment right to effective assistance of counsel.  Id.
at 1486; see also Ex parte Reedy,
282 S.W.3d 492, 500 (Tex. Crim. App. 2009) (“There is no doubt that an accused
has a Sixth Amendment right to the effective assistance of counsel in guilty
plea proceedings.”).  To provide
effective assistance during plea proceedings, “counsel has a duty to render his
best judgment to his client about what plea to enter, and that judgment should
be informed by an adequate and independent investigation of the facts of the
case.”  Ex parte Reedy, 282 S.W.3d at 500.      
In Padilla, the defendant complained that his trial
counsel had failed to advise him of the deportation consequences of a guilty
plea for a narcotics offense and incorrectly advised him concerning the plea’s
effect on his immigration status.  130
S. Ct. at 1477–78.  The Supreme Court noted that deportation is a particularly
severe “penalty” that is “intimately related to the criminal process” and “recent
changes” in immigration laws “have made removal nearly an automatic result for
a broad class of noncitizen offenders.”  Id. at 1481–82.  After finding it “most difficult” to separate the “penalty from the conviction
in the deportation context,” the Court concluded that “advice regarding
deportation is not categorically removed from the ambit of the Sixth Amendment
right to counsel.”  Id.
In considering the specifics of
Padilla’s plea, the Supreme Court acknowledged that immigration law can be “complex,”
but it noted that the terms of the relevant immigration statute under which
Padilla was to be deported were “succinct, clear, and explicit.”  Id.
at 1483 (citing 8 U.S.C. § 1227(a)(2)(B)(i)
(providing that “[a]ny 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 802 of title 21), other than a single offense involving possession for
one’s own use of 30 grams or less of marijuana, is deportable”)).  The Court explained that, under the
circumstances, when “the deportation consequence is truly clear,” counsel’s
duty to give correct advice regarding the immigration consequences of a guilty
plea “is equally clear.”  Id.  It also recognized that there would be “numerous situations in which the deportation consequences of a
particular plea” would be “unclear or uncertain” and the relevant law would not
be “succinct and straightforward.”  Id. 
The Court noted that, in such situations, counsel would owe a “more limited”
duty to “advise a noncitizen client that pending criminal charges may carry a
risk of adverse immigration consequences.” 
Id.  But, even after recognizing a “more limited”
duty in certain situations, the Court emphasized that counsel could not discharge
his duty by remaining silent or refraining from providing “affirmative misadvice.”  Id. at 1484.  It explained that limiting a counsel’s duty in
such ways would be “fundamentally at odds with the critical obligation of
counsel to advise the client of the advantages and disadvantages of a plea
agreement.”  Id.  The Court stressed that
it “is quintessentially the duty” of counsel to provide his client with
available advice about an issue like deportation.  Id.  Accordingly, the Supreme Court held that “longstanding
Sixth Amendment precedents, the seriousness of deportation as a consequence of
a criminal plea, and the concomitant impact of deportation on families living lawfully
in this country” demand that counsel “must inform [his]
client whether his plea carries a risk of deportation.”  Id. at 1486.  In support of its holding,
the Court noted that the “weight of prevailing professional norms supports the
view that counsel must advise [his] client regarding the risk of deportation.”  Padilla, 130 S. Ct. at 1482. 
The Court concluded that Padilla had sufficiently alleged that his counsel
was constitutionally deficient, and it remanded the case for a determination of
prejudice.  Id. at 1486–87.
In the instant case, the State
first argues that the relief requested by appellant should be denied because Padilla should not be applied
retroactively to appellant’s “conviction,” which was final at the time Padilla issued.  But, as the State concedes, this Court has
recently considered the retroactive effect of Padilla, and we concluded that the decision in Padilla “should be applied retroactively to cases on collateral
review.”  Ex parte Tanklevskaya,
No. 01–10–00627–CR, 2011 WL 2132722, at *7 (Tex. App.—Houston [1st Dist.]
May 26, 2011, pet. filed) (citing Marroquin v. United States, No.
M–10–156, 2011 WL 488985, at *2 (S.D. Tex. Feb. 4, 2011) (slip op.)).  Our Court addressed this issue extensively in
Tanklevskaya,
and we follow its holding applying Padilla
retroactively.[11]  See id.;
see also Ex parte De Los Reyes, 350
S.W.3d 723, 729 (Tex. App.—El Paso 2011, pet. granted) (agreeing that Padilla can be retroactively applied in
post-conviction habeas proceedings); U.S.
v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011)
(holding Padilla retroactive on
collateral review); McNeill v. United
States., No. A–11–CA–495 SS, 2012 WL 369471, at *3 (W.D. Tex. Feb. 2, 2012)
(“It is difficult to see how the Supreme Court could apply the rule in Padilla itself without a belief that the
rule applied retroactively.”); but see Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.
2011) (holding that Padilla does not
apply retroactively to cases on collateral review).
Having concluded that Padilla applies to appellant’s case, we
now turn to consider whether appellant has satisfied the first prong of Strickland by demonstrating that his
counsel’s representation “fell below an objective standard of reasonableness.”  Padilla, 130 S. Ct. at 1482. 
In arguing that we should deny appellant the relief that he requested in
his application, the State notes that appellant’s trial counsel testified by affidavit
that he advised appellant in accordance with the plea paperwork, which provided
a general admonishment that a guilty plea “may” result in “deportation.”  The State asserts that appellant’s
deportation, as a result of his guilty plea, was not “presumptively mandatory.”  In support of this assertion, the State cites
“a recent internal memorandum issued by John Morton, Director of [ICE],” which
encourages ICE employees to use “prosecutorial discretion” in enforcing
immigration laws.  The State also argues
that because appellant was charged with “multiple crimes” and immigration
officials are provided “wide discretion” in enforcing immigration laws, the
deportation consequences of appellant’s guilty pleas were not “truly clear.”
DHS records reflect that after the State released appellant
from incarceration, he was deemed removable and “processed” pursuant to sections
237(a)(2)(A) and 237(a)(2)(E) of the INA. 
8 U.S.C. § 1227(a)(2)(A); 8 U.S.C. § 1227(a)(2)(E)).  “Any alien who [] (I) is convicted of a crime involving moral turpitude[[12]]
committed within five years (or 10 years in the case of an alien provided lawful
permanent resident status under section 1255(j) of this title) after the date
of admission, and (II) is convicted of a crime for which a sentence of one year
or longer may be imposed is deportable.” 
8 U.S.C. § 1227(a)(2)(A)(i)(I-II).
 And “[a]ny alien who at any time after entry is
enjoined under a protection order issued by a court and whom the court
determines has engaged in conduct that violates the portion of a protection
order that involves protection against credible threats of violence, repeated
harassment, or bodily injury to the person or persons for whom the protection
order was issued is deportable.”  8
U.S.C. § 1227(a)(2)(E)(ii).
Moreover, there are multiple other provisions of the INA
indicating that, upon his guilty pleas, appellant was deportable.  For example, “[a]ny
alien who at any time after admission is convicted of two or more crimes
involving moral turpitude, not arising out of a single scheme of criminal
misconduct, regardless of whether confined therefor and regardless of whether
the convictions were in a single trial, is deportable.”  8 U.S.C. § 1227(a)(2)(A)(ii).  And “[a]ny alien
who is convicted of an aggravated felony[[13]]
at any time after admission is deportable.” 
8 U.S.C. § 1227(a)(2)(A)(iii).  Moreover, “[a]ny
alien who at any time after admission is convicted of a crime of domestic
violence, a crime of stalking, . . .is deportable.”  8 U.S.C. § 1227(a)(2)(E)(i).  The term “crime
of domestic violence” is defined to include “any crime of violence,” as
described above, “against a person committed by a current or former spouse of
the person.”  See id.  Finally, the Attorney
General of the United States “may cancel removal in the case of an alien who is
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.”  8 U.S.C. § 1229b(a).[14]
 
Had appellant’s trial counsel engaged in a simple review of
the plain language of these provisions, which are contained in an easily-identifiable
section of the INA appropriately titled “Deportable aliens,” it would have been
clear to counsel that appellant faced almost certain deportation as a result of
his guilty pleas.[15]  See Padilla,
130 S. Ct. at 1483 (noting that Padilla’s counsel “could have easily determined
that his plea would make him eligible for deportation simply from reading the
text of the statute, which addresses not some broad classification of crimes
but specifically commands removal” for the controlled substance conviction to
which Padilla pleaded guilty).  As in Padilla, the terms of the relevant
immigration statutes are “succinct, clear, and explicit in defining the removal
consequence” for appellant’s convictions.  See id.

The Supreme Court’s opinion in Padilla commands that “when the deportation consequence is truly
clear,” counsel’s “duty to give correct advice is equally clear.”  Id.  Here, the evidence demonstrates that, at
most, appellant’s counsel reviewed the general admonishments contained in
appellant’s plea papers, which advised appellant that his pleas “may” result in
deportation.  But, “[a] criminal
defendant who faces almost certain deportation is entitled to know more than
that it is possible that a guilty
plea could lead to removal; he is entitled to know that it is a virtual
certainty.”  Tanklevskaya, 2011 WL 2132722, at
*8 (citing United States v. Bonilla,
637 F.3d 980, 984 (9th Cir. 2011)).  Thus,
the general admonishments regarding the variety of possible immigration
consequences (i.e., deportation, exclusion from admission, or denial of
naturalization) contained within appellant’s plea papers, and his counsel’s
testimony that he generally reviewed the plea papers with appellant, are not
sufficient to discharge counsel’s duty to render effective assistance in regard
to the immigration consequences that appellant faced based upon his guilty
pleas.  Padilla, 130 S. Ct. at 1482–84, 1486.
  
We conclude that because the deportation consequences were “truly
clear” in this case and the evidence presented to the trial court demonstrated
that appellant’s trial counsel did not inform him that his subsequent removal
was virtually certain and presumptively mandatory, trial counsel’s performance
was deficient under the first prong of Strickland.[16]  See
Padilla, 130 S. Ct. at 1483 (noting
that consequences of plea “could easily be determined from reading the removal
statute,” which indicated that deportation for criminal conviction was “presumptively
mandatory”); Tanklevskaya,
2011 WL 2132722, at *8 (holding that counsel who only informed client of
general, possible immigration consequences, and did not inform client that inadmissibility
and subsequent removal was “virtually certain” and “presumptively mandatory,” provided
deficient performance under the first prong of Strickland).
We now consider whether appellant
satisfied the second prong of Strickland
by demonstrating a “reasonable probability that, but for [his] counsel’s
unprofessional errors, the result of the proceeding would have been different.”  Padilla, 130 S. Ct. at 1482. 
Here, appellant testified that, although he did not wish to plead guilty
to the assault offense, his trial counsel advised him, in light of the facts
that his case had been reset and his
bond had been revoked, to “plea to deferred adjudication probation as it would
not be a conviction but would result in dismissal as soon [he] finish[ed] . . . probation.” 
Appellant stated that his counsel further cautioned him that, otherwise,
he “would remain in jail for a long time waiting for trial.”  Moreover, appellant testified that when he
asked his trial counsel about how his plea would impact his immigration status,
his trial counsel advised him that “deferred adjudication probation was not a
conviction,” and, based upon his counsel’s advice, he pleaded guilty to
“deferred adjudication probation.” Appellant also stated that he pleaded guilty
to violating a protective order on his trial counsel’s advice and his trial counsel
did not inform him of any immigration consequences or that “deferred
adjudication” constitutes “a final conviction for immigration purposes.”  Finally, appellant stated that he would not
have pleaded guilty to the offenses if his trial counsel had advised him of the
immigration consequences of his pleas.  
          The type of evidence presented in the
instant case is similar to the evidence presented in Tanklevskaya, in which we
concluded that the applicant had demonstrated prejudice.  Tanklevskaya, 2011 WL 2132722, at *9–11.  In Tanklevskaya, we noted that, at the habeas hearing, the
applicant testified that she would not have accepted a plea had she known that
she would have subsequently been ruled inadmissible into this country, and she
stated that she would have “probably” gone to trial had she known.  Id.
at *9–10.  Based upon the applicant’s
testimony at the habeas hearing, we concluded that she had met her burden of
demonstrating that but for her counsel’s deficient and incomplete advice
regarding immigration consequences, which was “an issue of vital importance to
applicant,” she “would not have pleaded guilty.”  Id. at *10.
          In Tanklevskaya, we rejected the
State’s argument, which is similar to an argument it presents in this case,
that a general admonishment that a guilty plea “could” give rise to “negative
immigration consequences” obviated any prejudice from counsel’s deficient
performance.  Id.  We noted that such
general admonishments, whether provided by the trial court or set forth in the
plea paperwork, would not be sufficient to cure the prejudice arising from trial
counsel’s failure to inform his client when negative immigration consequences are
“presumptively mandatory” and “virtually certain.”  Id. at *11.  Indeed, it
would seem illogical to, on the one hand, require effective counsel to provide
specific advice regarding “clear” or “virtually certain” immigration
consequences, but then, on the other, hold that a defendant is not prejudiced
by counsel’s failure to provide this constitutionally required advice simply when
a trial court, or counsel, provides a boilerplate warning concerning general immigration
consequences.  If such general
admonishments precluded a finding of prejudice, the United States Supreme
Court’s holding in Padilla would be
stripped of much of its force.   
          We recognize that two Texas courts that
have recently considered appeals brought by applicants seeking habeas relief on
similar grounds to those presented by appellant concluded that the applicants
before them were not prejudiced by the ineffective assistance.  See
Ex
Parte Victorio, No. 05–11–01008–CR, 2012 WL 286803, at *5 (Tex. App.—Dallas Feb. 1,
2012, no pet. h.); Ex Parte Tovilla, No. 14–10–01120–CR, 2012 WL 113049, at *3
(Tex. App.—Houston [14th Dist.] Jan. 12, 2012, no pet.
h.) (mem. op.).  But these holdings were based on
distinguishable facts.  For example, in Ex
Parte Tovilla, the trial court conducted an evidentiary hearing at which it
received testimony from the applicant and the two attorneys who represented him
during the State’s prosecution.  2012 WL 113049, at *1.  One
of the attorneys testified that because the applicant “was a noncitizen,” she had
advised him that a conviction “would result or could result in deportation.”  Id.  The other attorney testified that after
reviewing the file, he advised the applicant concerning the strength of the
case, and he negotiated a plea bargain that allowed the applicant to avoid jail
time.  Id.  He also testified that
he had explained to the applicant that pleading guilty would “amount to a
conviction of a deportable offense” and the applicant understood that the “the
best scenario was the plea.”  Id. 
The applicant’s testimony differed from that of his attorneys in regard
to both the underlying offense and the advice pertaining to immigration
consequences.  Id.  And, the applicant
merely stated that, if appropriately advised of the immigration consequences, he
would have “look[ed] for a good attorney” to “plead
[his] case.”  Id.  Following the hearing,
the trial court denied the requested relief and entered findings that the
applicant had been admonished of the possibility of his removal.  Id. at *2.  The trial
court further found that, in light of the “overwhelming” evidence of guilt and “lenity
of the State’s plea offer,” it was “highly unlikely” that the applicant would
not have pleaded guilty, even if properly advised.  Id.  On appeal, our sister court deferred to the
trial court’s fact findings, noting that the finding was supported by the
testimony of the witnesses and the trial court was the judge of credibility of
those witnesses.  Id. at *3.
          Similarly, in Ex parte Victorio, the trial court, after conducting a hearing
at which the applicant and his two attorneys testified, made a finding that the
testimony of the applicant’s attorneys was credible and the applicant’s contradictory
testimony was not.  2012
WL 286803, at *1–2, 4.  Moreover,
although the applicant denied receiving any information about deportation and
stated that he would have gone to trial had he known that he would have been
deported, the trial court’s written admonishments included a warning stating,
“If you are not a citizen of the United States, a plea of guilty or nolo
contendere may, and under current Federal Immigration rules is almost certain to, result in your
deportation, . . . .” (emphasis in original).  Id. at *5.  The
applicant’s counsel also testified that he would have explained these plea
papers to the applicant, necessarily including the admonishment regarding “almost
certain” immigration consequences and deportation.  Id.
at *5–6.  Based upon these facts, the court
held that the applicant did not demonstrate prejudice under the second prong of
the Strickland.
          The
facts in the instant case are more similar to those presented to this Court in Tanklevskaya, in which we concluded that the applicant demonstrated prejudice.  2011 WL 2132722, at *8.  Unlike the facts presented in Tovilla and Victorio, here, there
is no fact finding from the trial court that appellant was not credible, there
is no evidence that counsel indicated that deportation was presumptively “mandatory”
or “certain,” and there is no admonishment in either the plea papers or from
counsel that appellant’s guilty plea was “almost certain” to result in his
deportation.  There is also no directly
conflicting testimony provided by appellant’s attorney, like that presented in Tovilla and Victorio,
regarding his discussions with appellant during plea proceedings.  Accordingly, we hold that appellant has established
that, but for his counsel’s deficient representation, he would not have pleaded
guilty and, as such, he was prejudiced by his counsel’s ineffective assistance.
          We sustain appellant’s sole issue.
Conclusion
          We reverse the order of the trial
court denying appellant the relief that he requested in his application for
writ of habeas corpus.  We set aside appellant’s
pleas, the order of deferred adjudication, and the judgments entered by the
trial court in cause numbers 1612023
and 1618601.  We remand the causes to the
trial court for further proceedings.   
 
 
 
                                                                   Terry
Jennings
                                                                   Justice

 
Panel
consists of Justices Jennings, Massengale, and Huddle.
Publish.   Tex. R. App. P. 47.2(b).




[1]
          Trial court cause number 1612023A; appellate court cause
number 01-11-00943-CR; see Tex. Penal Code Ann. § 22.01 (Vernon 2011).
 


[2]           Trial
court cause number 1618601A; appellate
court cause number 01-11-00944-CR; see id. § 25.07 (Vernon Supp. 2011).
 


[3]           At
the hearing on appellant’s application, the State introduced into evidence the
plea documents regarding the assault offense, but not the plea documents regarding
the offense of violation of a protective order. 
However, the parties agree to the essential facts regarding appellant’s
plea to the offense of violation of a protective order.  The parties also agree, and the record
reflects, that, on February 22, 2010, the State dismissed two other pending criminal
cases against appellant.
 
We note that records from the United States
Department of Homeland Security (“DHS”), which are contained in the record,
refer to multiple other criminal cases that were filed against appellant, but
ultimately dismissed.  
 


[4]           Although
the record does not contain any documents evidencing the basis on which appellant’s
guilt was adjudicated, the trial court, at the hearing on appellant’s
application, stated that it took judicial notice that on March 16, 2010, while
appellant was on community supervision, he was arrested for the offense of
burglary of a motor vehicle.  This
offense apparently formed the basis upon which appellant’s guilt of the offense
of assault was adjudicated.  The trial
court further noted that the burglary case was subsequently dismissed.   
 


[5]
          Specifically, DHS records
reflect that appellant was deemed “removable” under sections 237(a)(2)(A)(ii)
and 237 (a)(2)(E)(ii) and processed pursuant to sections 237(a)(2)(A)(II) and 237(a)(2)(E)(ii) of the INA. 
See 8 U.S.C. 1227(a)(2)(A); 8
U.S.C. 1227(a)(2)(E).
 


[6]           See Tex. Code Crim. Proc. Ann. arts. 11.072, 11.09 (Vernon 2005).
 


[7]           See Padilla
v. Kentucky,  – U.S. –, 130 S. Ct. 1473 (2010).
 


[8]           See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).


[9]
          It is undisputed that the State
did not introduce into evidence plea documents regarding appellant’s conviction
for the offense of violation of a protective order.


[10]
        In addressing a claim of ineffective assistance of counsel during plea
proceedings, the Texas Court of Criminal Appeals has stated that an applicant
“must show that his trial counsel’s advice with respect to accepting a plea
offer did not fall within the wide range of competence demanded of attorneys in
criminal cases, and that, but for his attorney’s deficiencies, he would not
have accepted the offer but would have insisted on going to trial.”  Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009).     


[11]
        See also Ex parte
Victorio, No. 05–11–01008–CR, 2012 WL 286803, at *5 (Tex. App.—Dallas Feb. 1,
2012, no pet. h.) (declining to address retroactive application of Padilla and instead holding that
appellant could not satisfy the second prong of Strickland standard); Ex
Parte Tovilla, No. 14–10–01120–CR, 2012 WL
113049, at *3 (Tex. App.—Houston [14th Dist.] Jan. 12, 2012,
no pet. h.) (mem. op.) (declining
to consider whether Padilla applies
retroactively because appellant failed to demonstrate that he was prejudiced by
counsel’s errors).
 


[12]
        The term “moral turpitude” is not
defined in the INA, but the State does not dispute that appellant’s convictions
would qualify as those involving moral turpitude.
 
            The term “conviction,” with respect to an alien, is
defined as “a formal judgment of guilt of the alien entered by a court or, if
adjudication of guilt has been withheld, where- (i) a
judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding
of guilt, and (ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty to be imposed.” See 8 U.S.C. § 1101(a)(48)(A).
  


[13]
        An “aggravated felony” is defined in the INA to include
 a “crime of violence . . . for which
the term of imprisonment [is] at least one year.” See 8 U.S.C. § 1101(a)(43)(F). “[C]rime of violence” is defined as “an offense that has as an
element the use, attempted use, or threatened use of physical force against the
person or property of another” or “any other offense that is a felony and that,
by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.”  18 U.S.C. §
16.  
 


[14]
        Appellant cites this provision in
his briefing to suggest that, if his offense qualified as an aggravated felony
under the INA, he would not have been entitled to seek cancellation of any
removal proceedings.  However, we note
that DHS documents in the record before us state that appellant entered the
United States on August 12, 2005, which would raise questions as to his ability
to satisfy the other subsections of the cancellation of removal provision. 
 


[15]
        Based upon appellant’s testimony and the appellant’s history of criminal
arrests, competent trial counsel would have considered and counseled regarding
the almost certain deportation consequences resulting from any subsequent
adjudication of guilt on the assault charge.


[16]         We
reject the State’s argument that an internal ICE memorandum obviates the duty,
as articulated in Padilla, of trial
counsel to consider the relevant immigration statutes and advise his client of
“truly clear” immigration consequences arising from a guilty plea.  
 
We also reject the State’s argument that we
should “infer” that appellant’s trial counsel advised appellant regarding the
specific immigration consequences as part of his normal and common
practice.  Although it certainly may be
true that appellant’s trial counsel has represented a large number of clients
and could not recall specific discussions with appellant, counsel provided no
testimony suggesting that his normal practices would have dictated that he
provided any specific immigration advice beyond the general review of plea
papers.  In fact, to the extent that any
inference can be drawn from trial counsel’s affidavit regarding his normal
practices, the affidavit suggests only that his normal practice in regard to
the immigration consequences of guilty pleas was simply to review matters
discussed in the plea papers, including the general admonitions about possible
immigration consequences.   


