                            NUMBER 13-10-00391-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

                        EX PARTE GUILLERMO GARZA


                    On appeal from the 92nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant Guillermo Garza filed an application for writ of habeas corpus, asserting

that his attorney did not advise him that a guilty plea would affect his current permanent

resident status. By two issues, Garza contends that the trial court abused its discretion

when it denied his habeas application (1) in light of the United States Supreme Court's

decision in Padilla v. Kentucky, 130 S. Ct. 1473, 1477-83 (2010), and (2) without first

conducting an evidentiary hearing or ordering his trial counsel to submit an affidavit in

response to his application. We reverse and remand.
                                           I. Background1

        Guillermo Garza states that he is a Mexican national lawfully admitted to the

United States on or about January 8, 1973. On January 21, 2005, Garza entered a plea

of guilty to the charge of possession with intent to deliver a controlled substance, a

second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West

2010). Prior to entering his plea, the trial court admonished Garza in open court and in

writing that if he was not a United States citizen, a plea of guilty to the charged offense

"may result in deportation, exclusion from admission to the country, or denial of

naturalization under federal law."          See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4)

(West Supp. 2011). Garza's trial counsel also signed a statement indicating that he

believed, among other things, that Garza understood his constitutional and procedural

rights, was mentally competent, was aware of the consequences of the plea, and

understood the admonitions of the trial court. After concluding that Garza entered his

plea of guilty freely and voluntarily, the trial court found Garza guilty and sentenced him to

eight years' confinement in the Institutional Division of the Texas Department of Criminal

Justice. The trial court suspended Garza's sentence and placed him on community

supervision for eight years. On November 2, 2007, Garza was granted early termination

of his community supervision.

        Garza asserts that on February 24, 2010, he was detained by officials with U.S.

Immigration and Customs Enforcement (ICE). While applying for asylum during his

removal proceeding, Garza filed a motion with the trial court to set aside his plea

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
agreement, alleging that he had been unlawfully restrained of his liberty by ICE and that

his guilty plea was entered unintelligently, unknowingly, and involuntarily as a result of his

trial counsel's failure to advise him of the adverse immigration consequences of his plea.

See id. art. 11.072 (West 2005). A hearing on the motion was scheduled for May 5,

2010; however, there is no record of an evidentiary hearing occurring on that day.

Rather, on May 6, 2010, Garza filed an application for writ of habeas corpus and a request

for a bench warrant with the trial court.

       In his May 6 application, Garza again claimed that his plea was entered

involuntarily due to ineffective assistance of counsel. Garza more specifically alleged

that his previous trial counsel had failed to inform him that because of his felony

conviction, the plea would affect his permanent resident status.             In support of his

application, Garza alleged that he would not have pleaded guilty had he known he would

lose his permanent resident status and would be deported. Garza also argued that

Padilla, a recent Supreme Court decision, directly applied because his previous trial

counsel never advised him that, as a result of his aggravated felony conviction, he would

lose his permanent resident status and be deported. See Padilla, 130 S. Ct. at 1483; see

also 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 2005 & Supp. 2011) (providing, in relevant part,

that "[a]ny alien . . . in and admitted to the United States shall, upon the order of the

Attorney General, be removed if the alien . . . at any time after admission has been

convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled

substance . . . .") (emphasis added).

       In support of his application, Garza attached his affidavit, in which he set out that

his appointed trial counsel never advised him that a guilty plea would subject him to a

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removal proceeding—"Not once was I ever told [by my attorney] that if I accepted the

charge, I would be deported. . . ."2 It is clear from the record that the trial court did not

order Garza's trial counsel to provide an affidavit on this matter.

        On May 20, 2010, the State responded to Garza's motion and his application for a

writ. On May 21, 2010, without a hearing to develop Garza's claim, the trial court entered

its findings of fact, conclusions of law, and an order denying Garza's application for a writ

of habeas corpus. In its order, the trial court concluded that Garza had satisfied neither

prong of the Strickland test for ineffective assistance of counsel. See Strickland v.

Washington, 566 U.S. 668, 694 (1984). Garza appeals from the trial court's denial of his

application for writ of habeas corpus.

                           II. Development of the Habeas Record

        By his second issue, which is dispositive of this appeal, see TEX. R. APP. P. 47.1,

Garza contends that the trial court abused its discretion when it did not allow him an

opportunity to appear in person and to testify at a hearing regarding his habeas

application. He also asserts that the trial court abused its discretion when it did not order

trial counsel to file an affidavit, in response to Garza's allegations, describing counsel's

recollection of the case in question.

        Article 11.072 of the Texas Code of Criminal Procedure provides that, in making its

determination on an application for a writ of habeas corpus seeking relief from an order or

a judgment of conviction ordering community supervision, the trial court "may order

affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal

recollection." TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(b). Section 6(b) of article

        2
         Garza also attached the affidavit of his wife describing how Garza was a devoted father and how
she would face financial hardship if he were to be deported.
                                                   4
11.072 clearly reflects that the trial court has the discretion to determine what is

necessary to make its determination. See id.; Ex parte Cummins, 169 S.W.3d 752, 757

(Tex. App.—Fort Worth 2005, no pet.); Ex parte Gonzalez, 323 S.W.3d 557, 558 (Tex.

App.—Waco 2010, pet. ref'd).

       However, if the habeas record requires factual development, the appellate court

can remand the writ to the habeas court for a new habeas hearing. See Ex parte Cherry,

232 S.W.3d 305, 308 (Tex. App.—Beaumont 2007, pet. ref'd). An appellate court's

ruling "should be based upon the habeas court's application of the law to the facts." Id.

at 307. The reviewing court "should not be required to guess or speculate regarding

what facts [the habeas court] may have considered as important to its conclusion." Id.

Moreover,

       [a] claim for ineffective assistance of counsel must be affirmatively
       supported by the record. Therefore, in determining the voluntariness of a
       guilty plea, the court should examine the record as a whole. The record
       should focus specifically on the conduct of trial counsel. Such a record is
       best developed in the context of [an evidentiary] hearing on application for
       writ of habeas corpus or motion for new trial.

Tabora v. State, 14 S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

       In this case, the trial court found that it had admonished Garza of the

consequences of his plea in accordance with article 26.13 of the Texas Code of Criminal

Procedure; its written admonishments included the possibility that Garza's plea could

result in deportation, exclusion from admission to the country, or denial or naturalization

under federal law. In addition, the judgment sets out that the trial court admonished

Garza that if he is not a citizen of the United States of America, a plea of guilty may result

in deportation under federal law. The record also contains a waiver of rights, consent to

stipulation of evidence and/or testimony, and plea of guilty signed by Garza.            Trial
                                          5
counsel signed this document stating, in relevant part, that he believed Garza understood

the admonitions of the trial court. However, the habeas record does not adequately

reflect what counsel actually advised Garza regarding his plea to the charged offense and

its consequences for Garza's immigration status. See 8 U.S.C.A. § 1227(a)(2)(B)(i); see

also Padilla, 130 S. Ct. at 1483 (holding that where the immigration statute in question is

clear and succinct in defining the removal consequence for a conviction, defense counsel

has a duty to give correct advice to his client); Ex parte De Los Reyes, 350 S.W.3d 723,

731 (Tex. App.—El Paso 2011, pet. granted) (concluding that an "admonishment that the

plea 'may' result in deportation" is insufficient under Padilla when the defendant's

deportation is a "near certainty"); Ex parte Tanklevskaya,No. 01-10-00627-CR, 2011 Tex.

App. LEXIS 4034, at *32 (Tex. App.—Houston [1st Dist.] May 26, 2011, pet. filed)

(determining that the trial court's admonishment that the appellant's plea "may result in

deportation, exclusion from admission to this country, or denial of naturalization under

federal law" did "not cure the prejudice arising from plea counsel's failure to inform

applicant that, upon pleading guilty, she would be presumptively inadmissible").

       As acknowledged by the State, Garza has alleged a claim of ineffective assistance

of counsel, which, if true, could entitle him to relief. The State further concedes that it

should have recommended that the trial court obtain an affidavit from trial counsel or that

the trial court hold an evidentiary hearing to resolve factual issues raised in Garza's

ineffective-assistance-of-counsel claim. Finally, the State brings to our attention that the

trial court previously set a hearing on Garza's motion to set aside the plea agreement, a

motion which we construe as his first application for a writ of habeas corpus on this claim.

However, nothing in the record explains why that evidentiary hearing was not held.

                                             6
        In light of the above, including the trial court's initial decision to set a hearing, the

State now suggests that the proper disposition of this appeal would be to remand to the

trial court for further development of the record, specifically focusing on the conduct of

trial counsel.     We agree.         Such a record is best developed in the context of an

evidentiary hearing on application for writ of habeas corpus or on a motion for new trial.

See Ex parte Cherry, 232 S.W.3d at 307-08; Tabora, 14 S.W.3d at 336.

        Accordingly, we conclude that the trial court abused its discretion when it denied

Garza's habeas application without first conducting an evidentiary hearing and sustain

Garza's second issue. Because our determination of this issue is dispositive of the

appeal, we do not address Garza's first issue.

                                            III. CONCLUSION

        We reverse the order of the trial court and remand for proceedings consistent with

this opinion.3



                                                                            NELDA V. RODRIGUEZ
                                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 15th
day of March, 2012.


        3
           Garza asks this Court to order that a different trial court judge be assigned to his case. We
decline to do so. While we review orders denying motions to recuse, under the facts of this case, we
cannot order the appointment of a different judge to preside over this matter on remand. See Gaal v.
State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011) (citing TEX. R. CIV. P. 18a(f) ("If the motion [to recuse] is
denied, it may be reviewed for abuse of discretion on appeal from the final judgment. If the motion is
granted, the order shall not be reviewable, and the presiding judge shall assign another judge to sit in the
case.")).


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