                                                                                                            ACCEPTED
                                                                                                       13-15-00136-CR
                                                                                       THIRTEENTH COURT OF APPEALS
        FILED                                                                                 CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                                     11/18/2015 2:06:15 PM
        CORPUS CHRISTI                                                                                Dorian E. Ramirez
                                                                                                                 CLERK
         11/18/15
DORIAN E. RAMIREZ, CLERK                       No. 13-15-00136-CR
        '·
BY DTELLO
                                     IN THE COURT OF APPEALS      RECEIVED IN
                                                            13th COURT OF APPEALS
                               FOR THE THIRTEENTH DISTRICT OF TEXAS
                                                         CORPUS  CHRISTI/EDINBURG, TEXAS
                                AT CORPUS CHRISTI-EDINBURG, 11/18/2015
                                                            TEXAS 2:06:15 PM
                                                                       DORIAN E. RAMIREZ
                                                                            Clerk

                                    EX PARTE ROSA MARlA CRUCES

                               ON APPEAL FROM THE !97TH DISTRICT COURT OF
                                       CAMERON COUNTY, TEXAS.
                                         CAUSE NO 13-15-00236-CR




                                 CERTIFICATION OF RIGHT OF APPEAL
                         Appellant's 3rd Amended Brief
         Honorable Luis Saenz                                  Law Office of Pablo Rocha P.C.
         Assistant District Attorney                           Pablo Rocha, Esq.
         964 East Harrison Street                              Texas Bar No.24028780
                                                               1413 East Fillmore Avenue
         Brownsville, Texas 78520                              Harlingen, Texas, 78553
         (956) 544 0849                                        (956) 365-4077

         Attorney for Appellee and Appellant

         Mr. Enrique C. Juarez                                 Rosa Maria Cruces
         Law Office of Enrique C. Juarez                       119 AvenueB
         Texas State Bar No. 11040500                          Brownsville, TX 78520
         213 North Arroyo, Suite A                             (956) 312-1384
         Los Fresnos, TX 78566
         (956) 233-5533
      IDENTITY OF COUNSEL

Appellant's Trial and Appellate Counsel


        Mr. Enrique C. Juarez
    Law Office of Enrique C. Juarez
     Texas State Bar No 11040500
      213 North Arroyo, Suite A
      Los Fresnos, Texas 78566
           (956) 233-5533

          Pablo Rocha, Esq.
    Law Office of Pablo Rocha, P.C.
       Texas Bar No. 24028780
      1413 East Fillmore Avenue
       Harlingen, Texas, 78553
           (956) 365-4077
                           TABLE OF CONTENTS
'·


                                                               Page

     INDEX OF AUTHORITIES                                      11


     STATEMENT OF THE CASE                                     1

     REQUEST FOR ORAL ARGUMENT                                 2

     ISSUE:   Ms. Cruz plea of guilty was induced by counsel's ineffective
              advice regarding immigration consequences.


     STATEMENT OF THE FACTS                                    2

     SUMMARY OF THE ARGUMENT                                   3

     ARGUMENT                                                  3

     PRAYER                                                    10

     CERTIFICATE OF SERVICE                                    11

     CERTIFICATE OF COMPLIANCE                                 12
                          INDEX OF AUTHORITIES

                                                              Page No.

Decisions of Texas Court of Appeals

Brown v. State, 943 S.W. 2d 35 (Tx. Crim. App. 1967)          8

Harrison v. State, 688 S.W. 497 (Tx. Crim. App. 1985)         8-9

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

Lyles v. State, 850 S.W. 2d 497, (Tx. Crim. App. 1993)        4

Montgomery v. State, 810 S.W. 2d. 372 (Tx. Crim. App. 1990)   4

Texas v. Golding, No. 01-685 CR (2011)                        4-5

Decisions of Federal Courts

Padilla v. Kentucky, 130 S. Ct. 1473 (2010)                   4,8,10

Henderson v. Morgan, 426 U.S. 637 (1976)                      5

INSv. St. Cyr, 533 US 289, (2001)                             1

Strickland v. Washington, 466 U.S. 668 (1984)                 3,5,6

US. v. Batamula, 788 F. 3d 166 (5th Cir. 2015)                6

US. v. Rivas Lopez, 678 F.3d 353 (5th Cir. 2012)              7

US. v. Urias Marrfu, 744 F.3d 361 (5th Cir. 2014)             6

Texas Criminal Statute

Texas Penal Code Section 30.02                                1,8.
     Texas Code of Criminal Procedure
·-
     Texas Code of Criminal Procedure Article 26.10   5

     Federal Statutes

     8 USC section 1101(a)(43)(G)                     1

     8 USC section 1182(a)(2)                         1

     8 USC section 1227(a)(2)                         1

     18 USC section 1342                              5

     United States Constitution

     AmendmentV                                       8

     Amendment VI                                     8




                                           lll
                          STATEMENT OF THE CASE

      Rosa Maria Cruces is a fifty eight year old Mexican citizen who obtained status

as a Lawful Permanent Resident of the United States on August 13, 1965. She was

residing in Brownsville, Texas, September 7, 2010, when she was arrested for

Burglary, in violation of Texas Penal Code Section 30.02.

      Any non-United States citizen who is the defendant in a criminal proceeding

is in jeopardy of being deported upon conviction. See 8 USC Section 1182(a)(2) and

8 USC Section 1227(a)(2). See INS v. St. Cyr, 533 US 289, (2001). The United States

Department of Homeland Security initiates administrative proceedings against non-

citizens, and persons with criminal history are the highest priority. See Karl R.

Thomson, Esq., DHS 's Authority to Prioritize Removal of Certain Aliens Unlawfully

Present, November 19, 2014. Persons who are Lawful Permanent Residents, (LPR),

are occasionally eligible to request a discretionary deportation waiver and maintain

lawful status notwithstanding a conviction. Some types of offenses are beyond the

scope of a discretionary waiver. Simply put, a conviction for an aggravated felony,

defined at 8 USC Section 1101(a)(43)(G), et seq. removes from the discretion of the

Immigration Judge the alternative of cancelling removal and allowing the LPR to

preserve his or her lawful status.




                                         1
       Attorney Enrique Juarez was appointed to represent Ms. Cruces. On February

28,2011, Ms. Cruces entered a plea of guilty in IOCR 2257-C. She was sentenced to

two years confinement in the Texas Department of Criminal Justice, which term was

suspended in lieu of placement on community supervision for five years.

                     REQUEST FOR ORAL ARGUMENT

       Ms. Cruces respectfully requests Oral Argument, as this appeal requests this

Court to adduce the implications of decisions of the Fifth Court on guilty pleas by

inunigrants in Texas Courts. The Court may benefit from considering the oral

arguments of the parties.


ISSUE:     Counsel's ineffective assistance resulted in an involuntary guilty plea
by Ms. Cruces.

                          STATEMENT OF FACTS
      Ms. Cruces has lived and resided lawfully in the United States for fifty years.

She was charged with burglary and counsel advised her that her guilty plea in

exchange for a one year sentence of imprisonment would not encumber her lawful

status. An Immigration Judge is statutorily prohibited from permitting her to remain

in the United States after a one year sentence has been imposed due to a conviction

for burglary. As a result of counsel's misadvice, Ms. Cruces is subject to automatic

deportation.



                                         2
          On October 8, 2014, Ms. Cruces filed her Application for Writ of Habeas

Corpus in the Trial Court. See Tab A. Ms. Cruces submitted her affidavit as well as

the affidavit in support of her Petition. Ms. Cruces' affidavit explains she only met

Mr. Juarez on the date she pleaded guilty. She stated he told her if she pleaded guilty

she would get probation and if she did not plead guilty she would be in jail for a long

time. Her affidavit also states Mr. Juarez told Mr. Cruces she would not lose her LPR

status.

                            SUMMARY OF ARGUMENT

          A claim of ineffectiveness will be found when defense counsel's conduct so

undermined the adversarial process that the proceeding cannot be relied on as having

produced a just result. Strickland v. Washington, 466 US 668, 686 (1984). A

conviction should be reversed when the defendant can demonstrate counsel's

representation was deficient, and he was prejudiced as a result. Ms. Cruces' affidavit

and testimony demonstrate she pleaded guilty in reliance on the assurances of former

counsel that her legal status would not be compromised.

                                   ARGUMENT
      The applicant for a writ of habeas corpus based on an involuntary guilty plea

has the burden of proving his allegations by a preponderance of the evidence. Kniatt



                                           3
v. State, 206 S.W.3d 657,664 (Tex. Crim. App. 2006). The Texas Court of Criminal

Appeals will uphold the decision of the Trial Court absent an abuse of discretion. The

Trial Court abuses its discretion when the court acts without reference to any guiding

rules or principles, or arbitrarily or unreasonably, or when its' decision lies outside

of the zone ofreasonable disagreement. Lyles v. State, 850 S.W.2d 497, 502 (Tex.

Crim. App. 1993), Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990).

      In The State of Texas v. Terry Golding No. 01-10-685-CR (2011), the Court

of Appeals of the First District of Texas specifically held that automatic deportation

is a direct, not a collateral consequence, the habeas petition of a party who diligently

sought Padilla based relief is not barred by laches, and Padilla applies retroactively

where ineffective assistance is shown. See Padilla v. Kentucky, 130 S. Ct. 1473

(2010). In that case, the Court of Appeals also found the trial court had jurisdiction

to consider Golding's habeas petition although fifteen years had passed since his

entry. Even where the state argued the petition was barred by the doctrine of laches,

the Court of Appeals noted that the State of Texas was not prejudiced by the passage.

of time, as they still had a meaningful opportunity to challenge the claims presented

therein. Even more, the Court noted that Golding applied for relief as soon as the

Supreme Court announced its' decision in Padilla, supra. Finally, the First District

                                           4
Court of Appeals cited post-Padilla decisions of the Fifth Circuit to Golding's

petition, and held that Padilla applied retroactively.

      Just prior to the conclusion of its' opinion in Golding, the First District Court

of Appeals summarized the imperative of the availability of habeas relief in cases

such as this:

  Recent changes in substantive immigration law, which have had an enormous
  impact on the fate of non-citizens faced with criminal charges, also support the
  conclusion that Padilla applies retroactively. Evaluation of whether counsel's
  performance was constitutionally deficient "is necessarily linked to the practice
  and reasonable expectations of the legal community ... under prevailing
  professional norms. Strickland 466 U.S. at 688, citing Padilla 130 S.Ct at 1482.

Golding at 20.

      Prior to waiving constitutional rights, a voluntary guilty plea     requi~es   the

defendant have real notice of the true nature of the charge, and where "the accused

does not understand the nature of the constitutional protections that he is waiving, or

because he has such an incomplete understanding of the charge that his plea cannot

stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637,645

n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108 (1976) (citations omitted). Here,

despite this Court's inquiry during the plea colloquy with respect to advisals about

immigration consequences, (See Texas Code of Criminal Procedure, Art 26.1 0,) and




                                          5
even though Ms. Cruces signed the admonishments as part of her plea agreement, her

guilty plea was not knowing, intelligent and voluntary.

      A recent decision of the Fifth Circuit concerning a conviction of a Tanzanian

defendant in United States District Court for violation of 18 USC section 1342 (false

statement on a passport application), holds that the admonition by the trial concerning

the implications of a guilty plea on the immigration status of a non-citizen are

insufficient, in and of themselves, to relieve from counsel his or her obligation to

provide competent and zealous representation throughout the plea process. United

States v. Batamula, 788 F.3d 166, 169, (5th Cir. 2015). There, the petitioner's

challenge to the validity of his guilty plea was supported by a statement from counsel

verifying that the petitioner was not advised that his guilty plea would give rising to

a finding of removability, but the District Court dismissed his section 2255 petition.

A panel of the Fifth Circuit referred to a previous decision, United States v. Urias

Marrfu, 744 F. 3d 361, (5th Cir. 2014).


  warnings from a judge during a plea colloquy are not a substitute for effective
  assistance of counsel... [A] judicial admonishment is one of many factors and
  circumstances that a court may consider in the fact-based, totality of the
  circumstances prejudice analysis, but did not determine whether such an
  admonishment, alone, can remedy or prevent prejudice cause by counsel's
  failure to provide effective advice about the immigration consequences of the
  guilty plea.



                                           6
788 F.3d 166, 171, citing Strickland, 466 US 749.

      Just prior to concluding the Fifth Circuit panel held, in U.S. v. Batamula, "a

judge's statement at the guilty plea proceeding that deportation is "likely" is not

dispositive of whether a petitioner whose counsel failed to advise him regarding his

immigration consequences of his plea can demonstrate prejudice as a result

therefrom." 788 F. 3d 166, 178.



      As a direct result of counsel's misinformation, Ms. Cruces faces loss of her

permanent resident status and a lifetime bar from the United States. For all of those

reasons, she has adequately demonstrated severe prejudice due to counsel's

ineffective assistance. Moreover, the Court of Appeals for the First District in

Golding provides this Court has jurisdiction to consider the arguments herein. The

decisions of the Supreme Court in Strickland v. Washington, supra, and Padilla,

supra, compel this Court to find the Trial Court abused discretion, and grant the

requested habeas relief.

      In United States v. Rivas Lopez, 678 F.3d 353 (5th Cir. 2012), the District Court

dismissed the Defendant's challenge to the constitutionality of his sentence, wherein

he alleged that defense counsel failed to accurately communicate the terms of a plea

agreement and the potential length of his sentence. 678 F.3d 353, 355.

                                          7
  The defendant appealed and the Fifth Circuit remanded to the District Court for
  a hearing. "When considering whether to plead guilty or proceed to trial, a
  defendant should be aware of the relevant circumstances and the likely
  consequences of his decision so that he can make an intelligent choice." ld at
  358.

      Here, Ms. Cruces' guilty plea was induced by counsel's misinformation. See

Record (RR at 6-7). Had she not been affirmatively mislead, she would not have

waived her right to a trial. A voiding deportation was a crucial goal for Mr. Cruces in

resolving the charge against her, but Ms. Cruces' counsel did not provide accurate

advice about the immigration consequences of her plea. The defendant's reliance on

such an assurance may deprive a guilty plea of its free and voluntary character.

Simply put, Ms. Cruces was prevented from rationally weighing the advantages of

going to trial against pleading guilty. Thus, her plea was not knowing, voluntary, and

intelligent, and was entered in violation of the Fifth Amendment right to due process

and Sixth Amendment right to effective assistance of counsel.

      As a result of counsel's deficient performance, Ms. Cruces' judicial admission

caused the loss of her LPR status with no recourse. According to analysis upon which

Padilla is based, a defendant must establish that counsel's deficient performance led

to a guilty plea, to such an extent that the ultimate result was fundamentally unfair

Counsel's erroneous advice was deleterious to such an extent that the ultimate result




                                          8
was fundamentally unfair. Such a defendant satisfies the Strickland ineffectiveness

and prejudice prongs.

      Ms. Cruces respectfully urges the Court of Appeals that she has shown

counsel's error affected her substantial rights, such that it is fundamentally unfair to

leave this fmding of guilt undisturbed. As the Texas Court of Appeals cautioned in

Brown v. State, 943 S.W.2d 35, 42 (Tx. Crim. App. 1997):

  We have held that misinformation concerning a matter, such as probation, about
  which a defendant is not constitutionally or statutory entitled to be informed,
  may render a guilty plea involuntary if the defendant shows that his guilty plea
  was actually induced by the misinformation. Harrison v. State, 688 S.W.2d497,
  499-500 (Tex. Crim. App. 1985). Likewise, where the defendant complains
  about the trial court's failure to give certain information that is statutorily but not
  constitutionally required-- and is not specifically intended as a vehicle to ensure
  that constitutionally required warnings are given-- similar considerations should
  apply: a defendant should be required to show that he would not have entered
  her plea had he been given the required information. n8 n8 This conclusion
  applies equally to the current version of the statute: a defendant who bargains
  for deferred adjudication under the current scheme may advance a claim that the
  failure to give the Section 5 information renders his guilty plea involuntary if
  she shows that she would not have entered the plea had she been given the
  information beforehand.

      Ms. Cruces would have either attempted to negotiate pre-trial diversion, or

demanded a jury trial, if she had been correctly advised that her plea of guilty is a

conviction for an aggravated felony which subjected her to mandatory deportation.

Moreover, had Mr. Cruces gone to trial and been convicted, the consequences would




                                            9
not have been more severe than what she currently faces: mandatory deportation, and
       •
permanent separation from her family.

       Here, minimal inquiry and investigation by trial counsel, such as contacting a

member of the Texas State Bar Immigration Section and consulting as to the effect

of a plea of guilty and sentence to violation of Section 30.02ofthe Texas Penal Code,

Burglary of a Habitation, would have prevented this misbegotten conviction.

Counsel's failure to seek any guidance as to the relevant provisions of the

Immigration and Nationality Act demonstrate his deficient performance. Ms. Cruces

subsequently obtained the services of an attorney familiar with the nuances of

immigration law, and expeditiously filed the instant petition. For that reason, delay

is not unreasonable, the State of Texas was heard in opposition, and the tenets of

Padilla v, Kentucky, supra, remain applicable to the legal arguments presented in this

petition.

                                                                             y
                                 Prayer forRelief

WHEREFORE, PREMISES CONSIDERED, Appellant Rosa Maria Cruces prays this

Court reverse the district court's final order and remand this case for further

proceedings.




                                          10
 Respectfully submitted,


~/7------
 ablORocha, Esq.

 Texas Bar No.24028780
 Email procha@pablorochalaw.com
 (956) 365-4077 (tel)
 Law Office of Pablo Rocha P.C.
 1413 E Filmore Avenue
 Harlingen, TX 78553
 Attorney for Appellant
        '




                                  11
                              Certificate of Service

I certify that I have served a true and correct copy of the above and foregoing

document on the following person:


Honorable Luis Saenz
Assistant District Attorney
964 East Harrison Street
Brownsville, Texas 78520


a2:h~----
by mail and electronic service.




                                       12
                       CERTIFICATE OF COMPLIANCE


I, Pablo Rocha, hereby certify that, pursuant to Texas Rule of Appellate Procedure
9 .4(i)(3 ), this Brief consists of2,252 words, excluding tables and cover page, and was
prepared using WordPerfect.

----,t.~+---------===-­
Thtl5Io Rocha, Esq.
                                                  lt/!1/r!?
                                               Date




                                          13
