                          NUMBER 13-11-00689-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                        Appellant,

                                           v.

JOSE DANIEL LORENZO GARCIA,                                                 Appellee.


               On appeal from the County Court at Law No. 6
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                Memorandum Opinion by Justice Rodriguez
      Appellant the State of Texas challenges the trial court's granting of appellee Jose

Daniel Lorenzo Garcia's application for writ of habeas corpus. By one issue, the State

argues that the trial court abused its discretion in finding that Garcia's guilty plea was

entered unknowingly and involuntarily because he might not have understood the

immigration consequences of his guilty plea. We affirm.
                                           I. Background

          It is undisputed by the parties that Garcia is a citizen of Mexico and an

undocumented immigrant in the United States. On August 2, 2010, Garcia was arrested

by Pharr, Texas police officers for possession of 13.5 grams of marihuana. Garcia was

subsequently charged by complaint for unlawful possession of marihuana in an amount

no more than two ounces, a class B misdemeanor. See TEX. HEALTH & SAFETY CODE

ANN. § 481.121(a), (b)(1) (West 2010). On September 7, 2010, Garcia pleaded guilty to

the charged offense, was sentenced to thirty-seven days in county jail, with credit for time

served, and was assessed a $150 fine.

          While Garcia was in county jail for his possession arrest, he was interviewed by a

United States Immigration and Customs Enforcement officer about his immigration

status.       On September 9, 2010, Garcia was placed in removal proceedings by the

Department of Homeland Security. Garcia's notice of removal charged that he was

subject to removal because he is "an alien present in the United States without being

admitted or paroled, or who arrived in the United States at any time or place other than as

designated by the Attorney General." See 8 U.S.C.A. § 1182(a)(6)(A)(i) (West 2011).

In other words, Garcia was being removed because of his undocumented status.

Garcia's removal paperwork noted his conviction for the marihuana possession charge.

          On September 20, 2011, Garcia filed an application for writ of habeas corpus, 1

alleging that he received ineffective assistance of counsel because his lawyer in his



          1
          See TEX. CODE CRIM. PROC. ANN. art. 11.09 (West 2005) ("If a person is confined on a charge of
misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have
been committed, or if there be no county judge in said county, then to the county judge whose residence is
nearest to the courthouse of the county in which the applicant is held in custody.")
                                                    2
marihuana possession case failed to advise him of the possible immigration

consequences of his guilty plea.       Garcia also alleged that the trial court failed to

admonish him regarding the immigration consequences of his guilty plea.

       The trial court held a hearing on Garcia's application on October 3, 2011. At the

hearing, Garcia testified that he had not been advised by counsel that his guilty plea could

have adverse immigration consequences.             He testified that he had applied for

cancellation of removal in his immigration case and that the only obstacle preventing

cancellation was his drug conviction. See 8 U.S.C.A. § 1229b(b) (West 2011). Garcia

testified that if he had known pleading guilty would prevent him from obtaining

cancellation of removal, he would not have pleaded guilty and would have insisted on

going to trial.

       During cross-examination, the State admitted Garcia's immigration proceeding

documents, which specified that Garcia was being removed for being in the country

illegally. The prosecutor asked Garcia whether he was being deported as a result of his

marihuana conviction, and although Garcia initially indicated that he believed his drug

conviction was the reason for his deportation, he eventually conceded that he was "being

deported . . . because [he] entered [the country] illegally."

       After Garcia's testimony and arguments by defense counsel and the State, the

court granted Garcia's habeas application, stating:

              Okay. First of all, I do believe that the attorney [advised Garcia
       regarding immigration consequences].         And even if he had not
       admonished him, the Court normally admonishes all defendants when
       they're pleading about the immigration consequences. And that is routine,
       I always do that.

            It may not be a deportable offense, but in either case – in the
       abundance of caution, I'm going to go ahead and grant it and allow them to
                                           3
       retry the case if so wishes. Even though that I don't believe this is a
       deportable offense, and even if the attorney had for some reason not
       warned him about those consequences, the Court always does. Whether
       he understood those warnings are something else, but I think he was
       warned. I don't know if he understood them clearly or not.

            I'm going to give him the benefit of the doubt, and out of the
       abundance of caution, go ahead and grant it.

       After the hearing, the trial court entered findings of fact and conclusions of law, in

relevant part, as follows:

                                   FINDS [sic] of FACT

       1.     Defendant, a citizen of Mexico, illegally entered the United States
              without inspection by wading across the Rio Grande River at an
              unknown date at the age of four (4).

       2.     On August 2, 2010, Defendant was arrested by the Pharr Police
              Department for possession of Marijuana in an amount [of] 13.5
              gram[s].

       3.     On August 2, 2010, Defendant was charged by information with the
              offense of Possession of Marijuana in an amount of less than two
              ounces.

              ....

       5.     On or about September 7, 2010, Defendant . . . appeared in Hidalgo
              County Court At Law Number 6. On that day, Defendant entered a
              plea of guilty to the charged offense under advisement of counsel.

       6.     Although Defendant was admonished by appointed counsel about
              the adverse immigration consequences of entering into a plea of
              guilty, Defendant entered a plea of guilty. It is unclear if Defendant
              knew or understood the consequences of his plea on his immigration
              status.

              ....

       8.     Defendant was placed in removal proceedings.

              ....


                                             4
                                CONCLUSIONS OF LAW

             ....

      2.     Defendant was charged and entered a plea to a controlled
             substance offense. Any drug possession charge can result in an
             immigrant's deportation and may have adverse immigration
             consequences, and the fact that the Defendant was sentenced to
             time served can still result in his exclusion, removal, or deportation
             from the United States, or result in ineligibility for relief from removal.

      3.     Defendant should enter a plea based on a knowingly [sic] and
             informed decision after considering the consequences of his plea.

             ....

      5.     In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Court held that
             counsel ["]must inform . . . client whether his plea carries a risk of
             deportation." The Court further stated that "when the law is not
             sufficient and straightforward, a criminal defense attorney need do
             no more than advise a noncitizen client that pending criminal
             charges carry a risk of adverse immigration consequences."

             ....

      7.     . . . Although Defendant was also admonished by [the] Court, [i]t is
             unclear if Defendant clearly understood the immigration
             consequences and made a knowingly [sic] decision to plea [sic]
             guilty.

      8.     The facts of this case establish a doubt about whether
             Defendant . . . knew or understood the immigration consequences of
             his plea. His plea clearly establishes harm to Defendant resulting in
             his possible deportation and exclusion from this country. . . .

The trial court then ordered Garcia's habeas application granted. This appeal followed.

                                     II. Jurisdiction

      As a threshold matter, we address whether we have jurisdiction over the State's

appeal in this case.    Article 44.01 of the code of criminal procedure provides the

circumstances under which the State may appeal in a criminal case but does not explicitly

give the State the right to appeal habeas applications granted under article 11.09, which
                                            5
governs habeas applications by persons confined on misdemeanor charges. See TEX.

CODE CRIM. PROC. ANN. art. 44.01 (West Supp. 2011); see also id. art. 11.09 (West 2005).

As a general rule, except for its right under article 44.01(k) to appeal habeas applications

granted under article 11.072, id. art. 44.01(k), the State is not entitled to appeal the

granting of a writ of habeas corpus.        State v. Reyes, 115 S.W.3d 229, 231 (Tex.

App.—Fort Worth 2003, pet. ref'd) ("Ordinarily, a respondent in a habeas corpus case

may not appeal from an adverse ruling. In general, only the unsuccessful applicant is

entitled to the right of an appeal in a habeas corpus case.") (citing State ex rel. Holmes v.

Klevenhagen, 819 S.W.2d 539, 541 (Tex. Crim. App. 1991); State v. Fowler, 97 S.W.3d

721, 721 (Tex. App.—Waco 2003, no pet.)).              "[T]he State may [only] appeal an

unsuccessful ruling in a habeas corpus case if the State would otherwise have had the

right of appeal in a criminal case." Id. (citing State v. Young, 810 S.W.2d 221, 222-23

(Tex. Crim. App. 1991); Ex parte Crenshaw, 25 S.W.3d 761, 764 n.4 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref'd)).

       The State asserts that the trial court's granting of Garcia's application in this case is

equivalent to the granting of a new trial, and because the State has the right to appeal the

granting of a new trial under article 44.01, see TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(3), the State may appeal the habeas ruling in this case. Under the facts of this

case, we agree with the State. "[W]hen an order is 'functionally indistinguishable' from or

the 'functional equivalent' of an order granting a new trial, a reviewing court can look past

the label assigned to the order by the trial court and treat the order as one granting a new

trial." State v. Boyd, 202 S.W.3d 393, 400 (Tex. App.—Dallas 2006, pet. ref'd) (citations

omitted). "A new trial, as contemplated by Article 44.01(a)(3) of the Texas Code of

                                               6
Criminal Procedure, is the rehearing of a criminal action after the trial court has, on the

defendant's motion, set aside a finding or verdict of guilt." Id. (internal quotations and

citations omitted). Specifically, a "trial court's order granting [a] motion to withdraw [a

guilty plea has] the precise effect of granting a new trial. Since the trial court order

return[s] the case to the posture it had been in before the plea was accepted, the trial

court order grant[s] a new trial, irrespective of the label or terms used in the motion or

order." State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992).

       In its findings and conclusions, the habeas court concluded that it was unclear

whether Garcia made his guilty plea knowingly and granted Garcia's application on this

basis. Granting Garcia's application on the basis that his plea was involuntary was the

functional equivalent of allowing Garcia to withdraw his guilty plea and return the case to

the posture in which it had been before the plea was accepted. In other words, the

habeas court's order in this case had the effect of setting aside the guilty verdict and

ordering a rehearing in Garcia's marihuana possession case. Because this ruling is the

functional equivalent of an order granting a new trial, the State is permitted to appeal this

ruling, no matter the label used in the trial court's order. We therefore conclude that we

have jurisdiction over the State's appeal in this case.

                              III. The Habeas Application

       By its sole issue on appeal, the State argues that the trial court abused its

discretion in concluding that Garcia’s guilty plea was unknowing and granting Garcia's

habeas application on this basis.

A. Standard of Review

       An applicant seeking relief by writ of habeas corpus must prove his claim by a

                                             7
preponderance of the evidence. Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim.

App. 1997). We view the evidence presented in the light most favorable to the trial

court's ruling on an application for writ of habeas corpus, and we uphold that ruling absent

an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003),

overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App.

2007). We afford almost total deference to the trial court's fact findings in a habeas

proceeding, particularly when those findings are based on evaluations of credibility and

demeanor. Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004). But if the

ultimate resolution of the application turns on an application of law, we review the

determination de novo. Ex parte Peterson, 117 S.W.3d at 819.

B. Applicable Law

       "The 'overriding concern' in reviewing the constitutional validity of a guilty plea is

'whether a defendant has been deprived of due process and due course of law.'"

Holland v. State, 761 S.W.2d 307, 322 (Tex. Crim. App. 1988) (quoting Ex parte Lewis,

587 S.W.2d 697, 700 (Tex. Crim. App. 1979)). To satisfy due process, a guilty plea

"must be entered knowingly, intelligently, and voluntarily." Kniatt v. State, 206 S.W.3d

657, 664 (Tex. Crim. App. 2006). We consider the entire record in determining the

voluntariness of a guilty plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.

1998) (citing Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975)).

       When the record reflects that the defendant was duly admonished by the trial court

before entering a guilty plea, it presents a prima facie showing that the plea was both

knowing and voluntary. Martinez, 981 S.W.2d at 197. "A defendant may still raise the

claim that his plea was not voluntary; however, the burden shifts to the defendant to

                                             8
demonstrate that he did not fully understand the consequences of his plea such that he

suffered harm." Id.

C. Analysis

       Here, the record shows that Garcia was orally admonished by the trial court prior to

his guilty plea as follows:

       [Court]:       . . . [I n]eed to advise defendant that if you are not a U.S.
                      citizen of this State, a plea of guilty or no contest could have a
                      negative affect [sic] on your status here in the United States.

                      You could be deported, excluded from the country or denied
                      naturalization under federal law, do you understand that?

       [Garcia]:      Yes.

       [Court]:       Knowing that Mr. [Garcia], to your charge how do you plea,
                      guilty or not guilty?

       [Garcia]:      Guilty.

This creates a prima facie case that Garcia's plea was voluntary. See Martinez, 981

S.W.2d at 197. The burden was therefore on Garcia to show that he nonetheless did not

fully understand the consequences of his plea such that he was harmed. See id.

       At the hearing on his habeas application, Garcia testified that he did not fully

understand the consequences of his plea because if he had known that pleading guilty

would preclude him from obtaining cancellation of removal, he would not have so

pleaded. See 8 U.S.C.A. § 1229b(b) (providing that the Attorney General may cancel

removal of an inadmissible or deportable alien who (1) has been continuously present in

the United States for at least ten years, (2) has a good moral character, (3) has not been

convicted of, among other offenses, an offense related to a controlled substance, and (4)

"establishes that removal would result in exceptional and extremely unusual hardship to

                                               9
the alien’s spouse, parent, or child, who is a citizen of the United States or an alien

lawfully admitted for permanent residence").                   The trial court apparently found this

testimony to be credible as it entered a finding of fact that, although Garcia had been

admonished,2 he did not fully understand the consequences of his plea.3 This finding

was based on the trial court's judgment of Garcia's credibility and demeanor, and we

afford almost total deference to such findings. See Ex parte White, 160 S.W.3d at 50.

In short, we will not disturb the trial court's apparent finding that Garcia did not understand

that his guilty plea would render him ineligible for cancellation of removal. See id.; see

also 8 U.S.C.A. § 1229b(b). And in light of this finding, we hold that the trial court did not

abuse its discretion in concluding that Garcia's plea was involuntary—i.e., that he did not
        2
           In its findings of fact, the trial court also found that Garcia's trial counsel had advised him of the
potential adverse immigration consequences of his plea. In its conclusions of law, the trial court
referenced Padilla v. Kentucky, in which the Supreme Court held that defense counsel could be
constitutionally deficient if counsel fails to properly advise a noncitizen client about immigration
consequences of a guilty plea. See 130 S.Ct. 1473, 1483, 1486 (2010). But because the trial court found
no deficiency in Garcia's counsel's performance, it could not have based its granting of Garcia's habeas
application on Padilla. In other words, absent any deficient performance, the prejudice prong of the
ineffective assistance of counsel test does not come into play, and the trial court could not have found
ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984). In short, we
do not believe Padilla provided any basis for the trial court's granting of Garcia's habeas application, and
therefore, we do not address it in this appeal.
        3
           The State contends that the trial court's findings and conclusions demonstrate that the court
applied an improper burden of proof to Garcia's habeas application. The State contends that, by finding
that it was "unclear" and that "[t]he facts of this case establish a doubt" about whether Garcia understood
the consequences of his plea, the trial court did not require Garcia to prove his involuntariness claim by a
preponderance of the evidence. See Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997). We
do not agree with the State that the language used by the trial court demonstrates that it used an improper
evidentiary standard. But even assuming that the trial court did not employ the correct standard, we may
uphold the trial court's ruling so long as it is supported by the applicable legal standard. See State v.
Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008) (providing that the appellate court reviews the trial
court's legal conclusions de novo and upholds the ruling so long as it is supported by the record and correct
under any legal theory applicable to the case). And having reviewed the entire record in this case, we
conclude that Garcia met his burden of proving by a preponderance of the evidence that he did not fully
understand the consequences of his plea. The State implies in its brief that Garcia's testimony alone is not
sufficient to prove his habeas allegations. While it is true that where there is proof contrary to an
applicant's habeas claims, his sworn allegations alone are not sufficient to prove his claims, see Ex parte
Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988), here, the State presented no evidence to contradict
Garcia's testimony that he did not fully understand that his guilty plea would render him ineligible for
cancellation of removal. Thus, Garcia's testimony alone was enough to prove his claim by a
preponderance of the evidence.
                                                      10
fully understand the consequences of his plea such that he was harmed—and granting

his habeas application on this basis. See Ex parte Peterson, 117 S.W.3d at 819; see

also Martinez, 981 S.W.2d at 197. The State's issue is overruled.

                                    IV. Conclusion

       We affirm the order of the trial court granting Garcia's habeas application.


                                                               NELDA V. RODRIGUEZ
                                                               Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 13th
day of December, 2012.




                                            11
