                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00554-CR
                          ____________________

                EX PARTE LUCIANO RESENDEZ ARJONA
_______________________________________________________          ______________

                   On Appeal from the 260th District Court
                          Orange County, Texas
                       Trial Cause No. D-950411-AR
________________________________________________________          _____________

                                   OPINION

      Luciano Resendez Arjona was arrested in 1995, and pleaded guilty in 2008

to felony possession of marijuana. He was sentenced to five years in prison. The

trial court suspended the imposition of the sentence and placed Arjona on

community supervision for five years. Arjona subsequently filed an application for

writ of habeas corpus. He claimed he did not know that his guilty plea would

automatically result in deportation. The trial court denied Arjona’s application.

Arjona contends that he is entitled to habeas relief because his trial counsel

misadvised him, and because the trial court’s admonishments were insufficient to

inform him of the immigration consequences. See Tex. Code Crim. Proc. Ann. art

                                        1
11.072 (West 2005). Arjona contends his guilty plea was unknowing and

involuntary. See Ex parte Hernandez, No. 09-12-00366-CR, __ S.W.3d __, 2013

Tex. App. LEXIS 4032, at **2, 12-13 (Tex. App.—Beaumont Mar. 27, 2013, no

pet. h.) (not yet released for publication).

                                STANDARD OF REVIEW

      An appellate court reviews for abuse of discretion a trial court’s ruling on

the merits of an application for writ of habeas corpus. Ex parte Klem, 269 S.W.3d

711, 718 (Tex. App.—Beaumont 2008, pet. ref’d). In the appeal from the order in

the habeas corpus proceeding, “[t]he sole purpose of the appeal is to do substantial

justice to the parties.” Tex. R. App. P. 31.2. This Court must “render whatever

judgment and make whatever orders the law and the nature of the case require.”

Tex. R. App. P. 31.3.

                                 ADVICE OF COUNSEL

      The State cannot deprive Arjona of his liberty without due process of law.

See U.S. Const. amends. V, XIV, § 1. Due process requires that a guilty plea be

considered valid only if the plea represents a voluntary and knowing choice among

the alternative courses of action available to the defendant. See Boykin v. Alabama,

395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed. 274 (1969).




                                               2
      The Sixth Amendment to the United States Constitution guarantees a

defendant effective assistance of counsel in a plea hearing. McMann v. Richardson,

397 U.S. 759, 771 & n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). If counsel is

ineffective at the plea hearing, a defendant may be prevented from entering a

knowing and voluntary plea. See Hill v. Lockhart, 474 U.S. 52, 56-60, 106 S.Ct.

366, 88 L.Ed.2d 203 (1985).

      When a person challenges the validity of a guilty plea entered upon the

advice of counsel, the voluntariness of the plea depends on whether (1) counsel’s

advice was within the range of competence demanded of attorneys in criminal

cases and, if not, whether (2) there is a reasonable probability that, but for

counsel’s errors, the person would not have pleaded guilty and would have insisted

on going to trial. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App.

2010). The Sixth Amendment requires that the defense attorney for a criminal

defendant provide advice about the risk of deportation arising from a guilty plea.

Chaidez v. United States, ___ U.S. ___, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149

(2013). When the law is not succinct and straightforward, a defense attorney need

do no more than advise a noncitizen client that pending criminal charges may carry

a risk of deportation. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1483, 176

L.Ed.2d 284 (2010). But the Supreme Court also explained in Padilla that if a

                                        3
deportation consequence is truly clear, as when the client is subject to automatic

deportation, the duty to give correct advice is equally clear, and counsel must

advise the client accordingly. Id., 130 S.Ct. at 1478, 1483. The defendant must

show that, had the immigration consequences been made known to him, a decision

to reject the plea bargain would have been rational under the circumstances. Id. at

1485. The holding in Padilla is not retroactive; “defendants whose convictions

became final prior to Padilla [March 31, 2010] . . . cannot benefit from its

holding.” Chaidez, 133 S.Ct. at 1113; Ex parte De Los Reyes, 392 S.W.3d 675, 679

(Tex. Crim. App. Mar. 20, 2013).

      In 2008, the trial court adjudicated Arjona guilty of felony possession of

marijuana and suspended the imposition of Arjona’s sentence. In Texas, a

defendant placed on community supervision may possibly raise issues relating to

the original plea proceeding in the appeal taken when community supervision is

imposed, but not in an appeal from revocation proceedings. See Manuel v. State,

994 S.W.2d 658, 661 (Tex. Crim. App. 1999). Although there is a limited “void

judgment” exception to that rule, generally the judgment placing a defendant on

community supervision is “final” for the purpose of appeal from the plea when

community supervision is imposed. See Nix v. State, 65 S.W.3d 664, 667-68 (Tex.

Crim. App. 2001). And generally the “void judgment” exception does not apply to

                                        4
a challenge to the involuntariness of the plea. Id. at 669. Under this approach to

determining what constitutes a “final conviction” for purposes of the Padilla rule,

the conviction here would be considered “final” before Padilla was handed down,

because Arjona’s direct appeal options were no longer available. See Allen v.

Hardy, 478 U.S. 255, 258 n.1, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (“Final”

means judgment of conviction rendered, the availability of appeal exhausted, and

the time for petition for certiorari has elapsed.); see also Ex parte Luna, No. 14-11-

01063-CR, 2013 Tex. App. LEXIS 3206 (Tex. App.—Houston [14th Dist.] Mar.

26, 2013, no pet. h.) (not yet released for publication). 1




      1
       But see Ex parte Hiracheta, 307 S.W.3d 323, 324-25 (Tex. Crim. App.
2010); Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001) (“[P]robated
sentences and probation revocations pose some unique issues.”); Ex parte Langley,
833 S.W.2d 141, 143 (Tex. Crim. App. 1992); Ex parte Brown, 662 S.W.2d 3, 4
(Tex. Crim. App. 1983) (“Nor is a conviction final while the accused is still
serving a probated felony sentence.”); Ex parte Payne, 618 S.W.2d 380, 381 (Tex.
Crim. App. 1981); see also Ex parte White, 211 S.W.3d 316, 318 (Tex. Crim. App.
2007) (General rule has exceptions.). Subject to certain exceptions, the Code of
Criminal Procedure provides in part that in terminating regular community
supervision:

       [T]he judge may set aside the verdict or permit the defendant to
      withdraw the defendant’s plea, and shall dismiss the accusation,
      complaint, information or indictment against the defendant, who shall
      thereafter be released from all penalties and disabilities resulting from
      the offense or crime . . . [.]

                                            5
      We presume for the purpose of our analysis that the Padilla rule imposed in

2010 does not apply to the 2008 plea hearing. We consider whether, despite the

presumed inapplicability to this case of the new duty imposed in Padilla, the plea

is subject to attack as unknowingly and involuntarily made.

                                 PLEA DISCUSSION

      Arjona is from Mexico; he moved to the United States for the first time in

1989. He was twenty-two years old when he was arrested for felony possession of

marijuana. Arjona married sometime after the 1995 arrest. He now has four

children. He asserts in his application that his family relies on him “for financial

support as he is the sole provider of the family.” His plea was entered thirteen

years after the arrest. At the plea hearing, the following exchange occurred:

      THE COURT: Now, have you always been a citizen of the United
      States?

      THE DEFENDANT: Right now I almost got my Green Card.

      THE COURT: Let me tell you this: If you are not a U.S. citizen, a
      plea of guilty or nolo contendere may result in deportation, exclusion
      to the country, or denial of naturalization under federal law. Do you
      understand that?

      THE DEFENDANT: Yes.

Tex. Code of Crim. Proc. Ann. art. 42.12 § 20(a) (West Supp. 2012). See generally
Cuellar v. State, 70 S.W.3d 815, 818-19 (Tex. Crim. App. 2002) (“within the trial
court’s sole discretion”).

                                          6
DEFENSE COUNSEL: Your Honor, for the record, I’ve been in
touch with Immigration over in Houston; and I think their main
concern is whenever he’s finished with probation for me to get with
them. Isn’t that your understanding?

THE DEFENDANT: Yes, sir. I’m sorry. Right now my case -- you
know, when I get my Green Card, these case show up there. So, they
say I have to come first here and then go back there before I can get
my Green Card. So, I’m sorry because I don’t come to the court. This
happened 13 years ago. Because nobody tell me I have to show up in
court. You know, I just get out unless I’m returning the card and then
I go back to my country and I just marry and coming back to work. I
work almost 13 years. I got three kids, and that’s what I’m working
for. I’m -- I don’t do drugs, don’t drinking. Just working, go home.

THE COURT: All right. Well, we’re going to get a Presentence
Investigation Report; and you’re going to have to be back here on July
2nd at 10:30.

DEFENSE COUNSEL: That’s a Wednesday, Judge. I’ll instruct him
to probation. I think Catherine is gone.

THE COURT: All right. You go with your lawyer over to this office.

THE DEFENDANT: Okay, sir.

THE COURT: And they’re going to have you come back so they can
talk with you and get some information from you and they’ll prepare
this report and I’ll have it when you come back here on July 2nd at
10:30. You have to be back that date. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: All right. That’s it. Thank you.




                                  7
       In his affidavit in support of the habeas corpus application, Arjona states

that he has a “Texas Identification Card . . . [.]” Arjona explains in the affidavit

that at the plea hearing he “was under the impression that my guilty plea would not

affect my then pending application to adjust my status to a lawful permanent

resident.” He further explains that his “application to adjust status to a lawful

permanent resident was subsequently denied due to my entering into a guilty plea

and was placed in deportation proceedings.” Arjona declares that if he had known

those consequences, he “would have definitely not plead guilty to felony

possession of marijuana.”

      In denying Arjona’s application for writ of habeas corpus, the trial court

made findings, including the following:

      On June 12, 2008, Applicant appeared with his attorney and entered a
      plea of Guilty and was admonished by the trial court.
         ....

      Upon learning that Applicant was not a citizen of the United States,
      the Trial Court admonished the Applicant as set forth in Article
      26.13(a)(4) of the Code of Criminal Procedure.

      A discussion took place at the time of the plea regarding Applicant’s
      efforts to obtain a green card. Both Applicant and his attorney had
      been in contact with Immigration officials in Houston, Texas.

      Applicant advised the Trial Court that Immigration officials told him
      to come to Orange County to take care of this old case and then return
      to get his green card. Applicant’s attorney had been told by Immigration

                                          8
      officials that Applicant needed to complete his probation and then
      contact them regarding his green card.

      Immigration officials never told Applicant or his attorney that
      Applicant would be deported if he entered a plea in this case.

      Applicant was advised by the Trial Court that a plea of guilty might
      result in deportation, the exclusion from admission to this country, or
      the denial of naturalization under federal law.

      An alien convicted of an “aggravated felony” is deportable and shall
      upon order of the Attorney General be removed.

      The Attorney General of the United States has wide discretion to
      decide what immigration laws will be enforced and how.

The trial court concluded that Arjona knew he might be subject to deportation and

yet pleaded guilty.

      The record from the plea hearing reflects trial counsel’s affirmative misadvice

as well as Arjona’s misunderstanding of the consequences of his plea. Arjona’s

appellate counsel argues that the “statement by trial counsel makes absolutely no

sense. There is no relief for [a]ppellant after he pleads guilty to a controlled

substance offense, even after he is ‘finished’ with probation.”

      A federal statute provides 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 102 of the Controlled Substances Act

                                          9
(21 U.S.C. 802)), other than a single offense involving possession for one’s own

use of 30 grams or less of marijuana, is deportable.” 8 U.S.C.S. § 1227(a)(2)(B)(i).

Arjona told the judge, when Arjona was asked if he was a citizen, “Right now I

almost got my Green Card.” When Arjona was asked whether he knew he “may”

be subject to deportation, he said “yes” first, but when counsel interjected “for the

record” and countered the response, Arjona apologized and then explained what he

thought would be the effect of his plea. Apparently he believed that pleading guilty

and obtaining community supervision would allow him to remain in the country.

The record indicates that he thought, as his attorney explained, “whenever

[Arjona’s] finished with probation,” his attorney was “to get with” the immigration

authorities. As Arjona explained, “[T]hey say I have to come first here and then go

back there before I can get my Green Card.”

      Under federal law, apparently his guilty plea would have the opposite

consequence: deportation. The record provides support for Arjona’s assertion that

he would not have pleaded guilty to the “old case” indictment. Appellate counsel

argues that, under the circumstances, “the trial court’s and/or trial counsel’s

admonishments” “were insufficient[.]”

      The purpose of the article 26.13 admonishments is to assist in determining

that a valid plea is entered and accepted by the trial court. See Fuller v. State, 253

                                         10
S.W.3d 220, 229 (Tex. Crim. App. 2008) (Admonishments assist trial court in

determining that a guilty plea is knowingly and voluntarily entered.); see also Tex.

Code Crim. Proc. Ann. art. 26.13 (West Supp. 2012). Although the record reflects

that the trial court gave the admonishment in accordance with article 26.13(a)(4),

the substance of Arjona’s response indicates he was willing to plead guilty and

serve community supervision with the understanding that he could then be able to

get his “green card.” Compare Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim.

App. 1995) (“Applicant has not alleged that the lack of the admonishment of Art.

26.13(a)(4) affected his guilty plea to the extent that it was not knowingly and/or

voluntarily made.”).

      The admonishment is a prima facie showing that the guilty plea was

knowing and voluntary. See Richard v. State, 788 S.W.2d 917, 920 (Tex. App.—

Houston [1st Dist.] 1990, no pet.). The burden shifted to Arjona to show,

considering the totality of the circumstances, the plea was unknowing and

involuntary. See Ex parte Zapata, 235 S.W.3d 794, 795 (Tex. Crim. App. 2007)

(involuntary plea); Ex parte Young, 644 S.W.2d 3, 4-5 (Tex. Crim. App. 1983)

(Record supported trial court’s findings that defendant was misled, thereby

rendering plea involuntary.). A plea hearing may provide sufficient evidence to

show the circumstances, but an applicant’s burden may require an evidentiary

                                        11
hearing separate from the plea hearing. See, e.g., Grays v. State, 888 S.W.2d 876,

879 (Tex. App.—Dallas 1994, no pet.).

      Although counsel may have had no initial duty to advise Arjona of the

deportation consequence of his guilty plea, because under our presumption the

conviction is considered final before the Padilla rule took effect, once counsel

responded to the court’s admonishment with volunteered advice, he became

obligated to provide the court and the defendant with accurate information.

Otherwise, a possibility exists that the court’s admonishment was rendered

ineffective, and counsel would be free to mislead a defendant, “simply because

there was no initial duty.” See, e.g., Ex parte Williams, 704 S.W.2d 773, 776 (Tex.

Crim. App. 1986) (court’s obligation to provide accurate information). Affirmative

misadvice by counsel regarding a material issue that the plea hearing reflects was

key to the defendant’s plea decision may constitute deficient performance. 2 See

generally Ex parte Moussazadeh, 361 S.W.3d 684, 688 (Tex. Crim. App. 2012)

(“Counsel’s advice can provide assistance so ineffective that it renders a guilty


      2
       Even without a Sixth Amendment violation, a plea may be invalid because
it was not made knowingly and voluntarily. The constitutional guarantees of due
process and of right to counsel, though related, are separate. See Boykin, 395 U.S.
at 242-43. (Waivers concerning a guilty plea are required to be affirmatively
shown on the record.). Here, it appears that Arjona’s attorney’s advice may not
have been the only source of his misunderstanding.

                                        12
plea involuntary.”); Ex parte Griffin, 679 S.W.2d 15, 18 (Tex. Crim. App. 1984)

(“On these facts, applicant’s plea of guilty was not a knowing, intelligent act done

with sufficient awareness of the relevant circumstances and likely consequences.”);

see also generally Morales v. State, 910 S.W.2d 642, 646-47 (Tex. App.—

Beaumont 1995, pet. ref’d) (“Neither would she have agreed to plead guilty had

she been informed about the deportation consequences.”). And from the record, it

also appears Arjona may have retained trial counsel for the specific purpose of

clearing a legal barrier to obtaining lawful permanent status. Counsel may have

purposefully assumed a duty he may not otherwise have had before Padilla.

      In Padilla, the Supreme Court noted there is no relevant difference between

an act of omission and an act of commission in this context, and refused to limit

the new duty it imposed on counsel to simply that of avoiding affirmative

misadvice. Padilla, 130 S.Ct. at 1484. But that does not mean affirmative

misadvice concerning a material issue was considered acceptable representation

before or after Padilla. See Ex parte Griffin, 679 S.W.2d at 17-18; United States v.

Kwan, 407 F.3d 1005, 1008-09, 1014-1018 (9th Cir. 2005) (distinction abrogated

by Padilla); United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002)

(distinction abrogated by Padilla); Downs-Morgan v. United States, 765 F.2d

1534, 1540-41 (11th Cir. 1985); see also 43 George E. Dix & John M.

                                        13
Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 40:43 (3d

ed. 2011 & Supp. 2012); 43 George E. Dix & Robert O. Dawson, Texas Practice

Series: Criminal Practice and Procedure § 34.111 (2d ed. 2001) (Counsel’s

material misadvice may render guilty plea involuntary.). 3

                         PROCEDURE IN THE TRIAL COURT

      Arjona presented his affidavit indicating that he did not enter the plea

knowingly and voluntarily, and the habeas court had a transcript of the 2008 plea

hearing. The arrest occurred in 1995, and, according to appellate counsel’s brief,

Arjona was a passenger in the vehicle searched. Appellate counsel argues that a

decision to pursue legal options other than a guilty plea would have been rational,

and counsel argues that Arjona would have “insisted on pursuing other options

such as a motion to suppress and/or a jury trial.”

      Although a habeas corpus hearing was scheduled in the trial court twice, no

hearing was held. An appellate court may remand a habeas proceeding to the trial

court if the factual record has not been sufficiently developed. Ex parte Hernandez,

2013 Tex. App. LEXIS 4032, at *15; Ex parte Cherry, 232 S.W.3d 305, 308 (Tex.

App.—Beaumont 2007, pet. ref’d). Under the circumstances here, an opportunity
      3
        Padilla references Kwan and Couto, which suggest that the ineffective
assistance claim must involve “affirmative misadvice.” Padilla, 130 S.Ct. at 1484.
Padilla does not limit the ineffective assistance in this context to acts of
commission.
                                          14
for further development of the habeas corpus record is required to determine

whether the plea was knowing and voluntary. Article 11.072 does not require a

hearing when the issues can be resolved without one. See Tex. Code Crim. Proc.

Ann. art. 11.072. But considering the circumstances presented at the plea hearing,

the possibility of an assumed duty by counsel, and the allegation of ineffectiveness

and affirmative misadvice of counsel, we conclude that the applicant should be

provided an opportunity to develop and present evidence at the hearing. Therefore,

“to do substantial justice to the parties[,]” we set aside the trial court’s order

denying the application and remand the case to the trial court for a hearing on the

application for habeas corpus relief. See Tex. R. App. P. 31.2; 31.3.

      VACATED AND REMANDED.



                                              ________________________________
                                                      DAVID GAULTNEY
                                                            Justice
Submitted on January 30, 2013
Opinion Delivered May 15, 2013
Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




                                         15
