                                                                                         ACCEPTED
                                                                                     13-14-00501-cr
                                                                      THIRTEENTH COURT OF APPEALS
                                                                            CORPUS CHRISTI, TEXAS
                                                                              1/15/2015 12:52:02 PM
                                                                                   DORIAN RAMIREZ
13-14-00501-CR                                                                               CLERK

                             NO. 2014-DHC-2879

                 IN THE THIRTEENTH COURT OF APPEALS
                                                 FILED IN
                                                    13th COURT OF APPEALS
                         CORPUS CHRISTI,         CORPUS
                                              TEXAS      CHRISTI/EDINBURG, TEXAS
                                                    1/15/2015 12:52:02 PM
                                                      DORIAN E. RAMIREZ
                                                             Clerk

                       SAMUEL OSVALDO GARCIA,

                                                               Appellant,

                                      V.



                          THE STATE OF TEXAS,

                                                               Appellee,



                           BRIEF OF APPELLANT

   On appeal from the 357th Judicial District Court of Cameron County, Texas

                  Honorable Oscar X. Garcia, Judge Presiding




                          Rafael de la Garza III, Esq.
                           Texas Bar No. 24076343
                            De la Garza & Ramirez
                           4943 South Jackson Rd.
                            Edinburg, Texas 78539
                            Phone: (956) 533-1426
                          Facsimile: (956) 284-0518


                    ORAL ARGUMENT REQUESTED


                                                                                 1
                    IDENTITY OF PARTIES & COUNSEL

Appellant:                         Samuel Osvaldo Garcia

Appellee:                          The State of Texas

Trial counsel for Appellant:       Rafael de la Garza
                                   Texas Bar No. 24076343
                                   4943 South Jackson Road
                                   Edinburgh, Texas 78539

Appellant counsel for Appellant:   Rafael de la Garza
                                   Texas Bar No. 24076343
                                   Ricardo Ramirez
                                   Texas Bar No. 24079177
                                   4943 South Jackson Road
                                   Edinburg, Texas 78539

Counsel for Appellee:              Honorable Luis Saenz
                                   Assistant District Attorney
                                   964 East Harrison Street
                                   Brownsville, Texas 78520




                                                                 2
                            TABLE OF CONTENTS

                                                   Page

Identity of Parties & Counsel                             2

Table of Contents                                         3

Index of Authorities                                      4-5

Statement of the Case                                     5

Issues Presented                                          5

Statement of Facts                                        6-8

Summary of Argument                                       8-9

Standard of Review                                        9

Arguments & Authorities                                   10-20

Prayer for Relief                                         20

Certificate of Service                                    21

Certificate of Compliance                                 21

Appendix                                                  22

A.    Final Order, Executed on September 5, 2014

B.    Affidavit of Samuel Oswaldo Garcia

C.    Affidavit of Attorney Daniel Sanchez




                                                                3
                          INDEX OF AUTHORITIES
                                                               Page

United States Constitution

Sixth Amendment                                                11, 13, 14

Statutes

Texas Health and Safety Code Section 481.112                   6

8 USC Section 1101(a)(43)                                      12

8 USC Section 1101(a)(43)(B)                                   12-13

8 USC Section 1229b                                            12

Cases

Chaidez v. United States, 130 S.Ct. 1103 (2013)                10, 11, 19

Hill v. Lockhart, 106 S.Ct. 366 (1985)                         16

Johnson v. State, 169 S.W.3d 223                               16-17

Kniatt v. State, 206 S.W.3d 657, (Tex. Crim. App. 2006).       9

Lyles v. State, 850 S.W.2d 497, (Tex. Crim. App. 1993).        9

London v. Plasencia, 459 U.S. 21                               18

McMann v. Richardson, 397 U.S. 759                             15

Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App. 1990).   9

Padilla v. Kentucky, 559 US 356 (2010)                         10, 11, 13

United States v. Campbell, 778 F.2d 764                        10

United States v. Kwan, 407 F.3d 1005                           10, 15
                                                                            4
United States v. Wade, 88 U.S. 218, 227-28                             14-15

Strickland v. Washington, 466 U.S. 668 (1984).                         14, 15, 16,

                                                                       18, 19

                         STATEMENT OF THE CASE

      This case concerns Appellant’s “Application for Post-Conviction Writ of

Habeas Corpus Seeking Relief in Accordance with Article 11.072 of the Code of

Criminal Procedure,” which was filed in the 357th Judicial District Court, Cameron

County, Texas, on May 8, 2014. See Index Pg. 40-48. Appellant filed same seeking

to vacate a criminal conviction. Id. The State of Texas filed a response to

Appellant’s application on June 5, 2014. See Index Pg. 49-60. Then, on August 4,

2014, the district court denied Appellant’s application and this appeal followed. See

Index Pg. 66.

                              ISSUES PRESENTED

Issue 1: Whether Mr. Garcia can proceed on an ineffective assistance claim
pursuant to the Sixth Amendment of the United States Constitution, on the ground
that he was affirmatively misadvised of the immigration consequences of his plea,
notwithstanding the ruling rendered in Padilla v. Kentucky, 130 S. Ct. 1473 (U.S.
2010).

Issue 2: Whether the trial court abused its discretion in denying Mr. Garcia’s habeas
petition on the bases that former counsel’s affirmative misadvise regarding
immigration consequences, constitutes ineffective assistance of counsel, in violation
of the Sixth Amendment of the United States Constitution, which would require
vacature of the underlying conviction.




                                                                                   5
                           STATEMENT OF FACTS

      Samuel Osvaldo Garcia (hereinafter, “Mr. Garcia”) is a forty five (45) year

old Guatemalan citizen who obtained status as a Lawful Permanent Resident

(“LPR”) of the United States in 1987. See Appendix B – Affidavit of Samuel Oswaldo

Garcia. He has been residing in the United States since he was ten (10) years old.

Id.

      On August 23, 2002, Mr. Garcia was arrested for “Possession of a Controlled

Substance with Intent to Deliver,” in violation of Texas Health and Safety Code

Section 481.112. See Index Pg. 9. He was indicted on September 11, 2002 and

counsel was appointed to represent him. See Index Pg. 12. Former counsel met with

Mr. Garcia and advised him that the state was offering probation. See Appendix B –

Affidavit of Samuel Oswaldo Garcia. Mr. Garcia inquired regarding the immigration

consequences of his plea as follows:

      “I asked my attorney if I would be deported if I pled guilty to the charge and
      got probation. He said that I would probably be okay. He said that the charge
      would probably not result in deportation.”

Mr. Garcia relied on his counsel’s advice and entered a plea of guilty to the charge

on January 29, 2003, in cause number 02CR 1042. Id. Mr. Garcia was sentenced to

ten (10) years confinement in the Texas Department of Criminal Justice, which term

was suspended in lieu of placement on community supervision for ten (10) years.

See Index Pg. 17.


                                                                                  6
      Immigration and Customs Enforcement (ICE) picked up Mr. Garcia soon

thereafter and presented him before an immigration judge. See Appendix B –

Affidavit of Samuel Oswaldo Garcia. The immigration judge rescinded Mr. Garcia’s

LPR status and deported him as a result of his conviction for “Possession of a

Controlled Substance with Intent to Deliver.” Id. If Mr. Garcia had known that he

was going to be deported as a result of his plea of guilty, he would have pled not

guilty and fought his case. Id.

      On May 8, 2014, Mr. Garcia filed his Petition for Writ of Habeas Corpus in

the Trial Court. See Index Pg. 40-48. Mr. Garcia submitted his affidavit as well as

the affidavit of former counsel Daniel Sanchez, in support of his Petition. See

Appendix B – Affidavit of Samuel Oswaldo Garcia and Appendix C – Affidavit of

Attorney Daniel Sanchez. Mr. Garcia’s affidavit explains he asked Mr. Sanchez

about losing his LPR status and Mr. Sanchez stated “he would probably be okay,

and the charge would probably not result in deportation.” See Appendix B – Affidavit

of Samuel Oswaldo Garcia. Mr. Garcia also states he would not have waived his

right to a trial if he had been apprised of the certain loss of his LPR status upon

conviction. Id. Mr. Sanchez’s affidavit is also in the record. Appendix C – Affidavit

of Attorney Daniel Sanchez. Mr. Sanchez’s affidavit states his advice was consistent

with the admonishments at Article 26.10 of the Texas Code of Criminal Procedure,




                                                                                   7
and that he does not remember any other substantive conversation in the moments

before he accompanied Mr. Garcia in the courtroom. Id.

      On June 5, 2014, the State of Texas filed its’ opposition to Mr. Garcia’s

Petition for Writ of Habeas Corpus. See Index Pg. 49-60. In its’ opposition, the State

of Texas urged the Trial Court that Attorney Sanchez’s representation was not

deficient. Id.

      Then, on August 4, 2014, the Presiding Judge of the 357th Judicial District

Court denied the Application for Post-Conviction Relief. See Index Pg. 60 and

Appendix A. However, the Presiding Judge failed to specify the bases for the denial.

Id. Mr. Garcia filed his Notice of Appeal on August 15, 2014. See Index Pg. 66.

                          SUMMARY OF ARGUMENT

      Mr. Garcia has been an LPR since 1987 and has been residing in the United

States since he was a child. See Appendix B – Affidavit of Samuel Oswaldo Garcia.

He was arrested for “Possession of a Controlled Substance with Intent to Deliver”

in 2003. Id. Mr. Garcia’s former counsel advised him to enter a plea of guilty. Id.

Former counsel also advised Mr. Garcia that his plea of guilty would not result in

his deportation.    Id.    Former counsel’s advice regarding the immigration

consequences of the plea constituted affirmative misadvise since the conviction

immediately rendered Mr. Garcia an aggravated felon subject to deportation from

the United States. Id. Former counsel did not have a duty to advise Mr. Garcia of


                                                                                    8
the fact that his plea would result in deportation. Nonetheless, former counsel was

obligated to not affirmatively misadvise and / or actively mislead Mr. Garcia on any

matter, however related to criminal prosecution, including immigration

consequences.    Former counsel’s affirmative misadvise constitutes ineffective

assistance of counsel, pursuant to the Sixth Amendment of the United States

Constitution.

      As such, the Trial Court abused its discretion in denying Mr. Garcia’s habeas

petition and Mr. Garcia hereby respectfully requests that this Court reverse the

district court’s final order and remand this case for further proceedings.

                            STANDARD OF REVIEW

      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. See

Kniatt 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 of reasonable disagreement. See 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).




                                                                                    9
                          ARGUMENTS & AUTHORITIES

I.    Mr. Garcia Can Proceed With His Claim of Ineffective Assistance of
      Counsel Pursuant to Chaidez Since He Was Affirmatively Misadvised
      Concerning The Immigration Consequences of His Guilty Plea.

         a. Current Law Regarding Affirmative Misadvise

      In 2010, Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 2010), held that trial

counsel must inform their clients of the possible immigration consequences of

pleading guilty. Then, in 2013 the case of Chaidez v. United States, 133 S. Ct. 1103

(2013), held that “…defendants whose final convictions became final prior to

Padilla…cannot benefit from the holding of Padilla.” Id. at 1113.

      However, Chaidez made clear that individuals like Mr. Garcia can bring

ineffective assistance claims on the bases of affirmative misadvise:

             “…true enough, three federal circuits (and a handful of state courts)
             held before Padilla that misstatement about deportation could support
             an ineffective assistance claim. But those decisions reasoned only that
             a lawyer may not affirmatively misrepresent his expertise or otherwise
             actively mislead his client on any important matter, however related to
             a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005,
             1015-1017 (C.A.9 2005). They co-existed happily with precedent,
             from the same jurisdictions (and almost all others), holding that
             deportation is not “so unique as to warrant an exception to the general
             rule that a defendant need not be advised of the collateral consequences
             of a guilty plea.” See United States v. Campbell, 778 F.2d 764, 769
             (C.A.11 1985). So at most, Chaidez has shown that a minority of courts
             recognized a separate rule for material representations, regardless
             whether they concerned deportation or another collateral matter. See
             Chaidez at 13.




                                                                                  10
      As such, Chaidez left open the possibility of ineffective assistance claims

based on affirmative misadvise of former counsel. Chaidez established that claims

based on misstatements about deportation are sufficient to support a claim for

ineffective assistance of counsel under the Sixth Amendment of the United States

Constitution.

      In this case, Mr. Garcia’s conviction became final in 2003, before the Padilla

holding was handed down in 2010. See Appendix B – Affidavit of Samuel Oswaldo

Garcia. As such, Padilla is not applicable and former counsel did not have a duty

to advise Mr. Garcia of the immigration consequences of pleading guilty. However,

Chaidez clearly provides that a claim of ineffective assistance of counsel may be

alleged when a defendant is affirmatively misadvised concerning immigration

consequences.

         b. Because the Relevant Immigration Statutes Clearly Provide For
            Automatic Deportation Upon Conviction For An Offense that
            Involves Drug Trafficking, Former Counsel’s Statements to Mr.
            Garcia Constitute Affirmative Misadvise.

      The evidence in the record establishes that Mr. Garcia inquired regarding the

immigration consequences of his plea and former counsel advised as follows:

            “I asked my attorney if I would be deported if I pled guilty to the charge
            and got probation. He said that I would probably be okay. He said
            that the charge would probably not result in deportation.”

See Appendix B – Affidavit of Samuel Oswaldo Garcia.



                                                                                   11
      Former counsel’s statement to Mr. Garcia, indicating that his plea was

unlikely to result in deportation, was entirely misleading. This is because the

relevant immigration statutes clearly provide that Lawful Permanent Residents

(LPR’s) with drug convictions, that involve an element of trafficking, are considered

aggravated felonies that make LPR’s automatically deportable.           Because the

immigration statutes clearly define Mr. Garcia’s underlying conviction as one that

constitutes an “aggravated felony,” former counsel’s statements constitute

affirmative misadvise.

      LPR’s that are seeking relief from deportation may seek a discretionary

waiver from the immigration judge. The elements that must be established to obtain

relief are as follows:

      Section 240A Cancellation of Removal; Adjustment of Status
      [8 U.S.C. 1229b]

      (a) Cancellation of removal for certain permanent residents.—The
          Attorney General may cancel removal in the case of an alien who
          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.

The term “aggravated felony” referred to above is defined under 8 U.S.C. §

1101(a)(43). The statute contains a laundry list of offenses that constitute an

aggravated felony. Specifically, 8 U.S.C § 1101(a)(43)(B), provides:
                                                                                  12
      (B) Illicit trafficking in a controlled substance (as defined in section 102 of
      the Controlled Substances Act), including a drug trafficking crime (as defined
      in section 924(c) of title 18, United State Code).

      The immigration law on this issue is clear and succinct – an LPR that seeks to

cancel his deportation and preserve his status is barred from doing so if the LPR has

a conviction for an “aggravated felony.” Mr. Garcia was convicted of “Possession

with Intent to Deliver.” A review of the above-mentioned sections would have

placed Mr. Garcia’s former counsel on notice that a plea of guilty would render Mr.

Garcia an aggravated felon ineligible for cancellation of removal.

      Former counsel’s statements to Mr. Garcia that he would “probably be okay”

and that the “charge would probably not result in deportation” are misleading and

constitute affirmative misadvise since they convinced Mr. Garcia that he would not

be deported. They are also misleading and constitute affirmative misadvise because

the conviction would make Mr. Garcia an aggravated felon and subject him to

automatic deportation.

      As such, Mr. Garcia can proceed on an ineffective assistance claim pursuant

to the Sixth Amendment of the United States Constitution on the ground that he was

affirmatively misadvised regarding the immigration consequences of his plea,

notwithstanding the ruling in Padilla.

II.   The Trial Court Abused Its Discretion in Denying Mr. Garcia’s Habeas
      Petition Since The Evidence Established That Former Counsel’s
      Affirmative Misadvise Regarding Immigration Consequences


                                                                                  13
      Constitutes Ineffective Assistance of Counsel in Violation of Sixth
      Amendment of the United States Constitution.

      The record clearly establishes that the Trial Court abused its discretion in

denying Mr. Garcia’s Habeas Petition. This is because the evidence makes it more

likely true than not, that Mr. Garcia’s plea was not knowing, intelligent and

voluntary, due to former counsel’s affirmative misadvise. Specifically, the evidence

establishes that Mr. Garcia entered his plea of guilty as a result of former counsel’s

admonishment that his plea of guilty would not result in a deportation. See Appendix

B – Affidavit of Samuel Oswaldo Garcia.

      The affirmative misadvise of former counsel is sufficient to establish that his

performance was deficient such that it prejudiced Mr. Garcia in the underlying case,

in violation of his Sixth Amendment right to effective assistance of counsel. In light

of the evidence, it is clear that the Trial Court abused its discretion when it denied

the Habeas Petition.

      a. The Sixth Amendment of the United States recognizes the right to
         effective assistance of counsel for Mr. Garcia

      The Sixth Amendment to the United States Constitution guarantees effective

assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

2063, 80 L. Ed. 2d 674 (1984). The right to counsel guarantees that the defendant

will have effective assistance of counsel during all critical stages of the criminal

proceeding. See United States v. Wade, 388 U.S. 218, 227-28, 87 S.Ct. 1926, 18


                                                                                   14
L.Ed. 2d 1149 (1967). The time at which a defendant is called to enter his plea to a

felony is considered a critical stage. See McMann v. Richardson, 397 U.S. 759, 771

n. 14, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970). In order to prevail on a claim of

ineffective assistance of counsel pertaining to a guilty plea, a Petitioner must

demonstrate that (1) counsel’s performance was deficient; and (2) the deficient

performance prejudiced his defense. See Strickland, 466 U.S. at 688-93.

            (1) Former counsel’s performance was deficient because he chose to
                affirmatively misadvise Mr. Garcia

      Defense counsel is obligated not to misadvise or “actively mislead his client

on any important matter, however related to a criminal prosecution.” See United

States v. Kwan, 407 F.3d 1005, 1015-1017 (C.A. 9). Former counsel failed to abide

by the holding of Kwan in that he effectively misled Mr. Garcia regarding the

immigration consequences of his guilty plea.

      In this case, Mr. Garcia’s former counsel affirmatively misadvised him that

he would “probably be okay” and that the “charge would probably not result in

deportation.” See Appendix B – Affidavit of Samuel Oswaldo Garcia. These

statements taken together effectively convinced Mr. Garcia that entering a plea of

guilty to “Possession with Intent to Deliver,” would not result in his deportation. Id.

Former counsel affirmatively made these statements. Id. If instead former counsel

had remained silent or stated he did not know what effect Mr. Garcia’s plea would

have on his legal status, former counsel’s performance would have been acceptable.
                                                                                    15
      As mentioned in Section I.b above, an inquiry into the immigration

consequences of Mr. Garcia’s plea would have determinatively shown that a plea

would result in Mr. Garcia being characterized as an “aggravated felon” subject to

automatic deportation. Alternatively, former counsel could have told Mr. Garcia

that he did not know or would rather not advise regarding the immigration

consequences of his plea.

      Unbeknownst to former counsel, his decision to affirmatively misadvise Mr.

Garcia had a devastating effect on Mr. Garcia’s future – one that would only be

remedied by revisiting former counsel’s deficient performance. Id. Therefore, the

first prong of Strickland is met.

            (2) Former counsel’s deficient performance prejudiced Mr. Garcia
                since the plea resulted in an automatic deportation

      In order to satisfy the “prejudice” requirement, “the defendant must show that

there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” See Hill v. Lockhart, 106

S.Ct. 366 (1985). To establish prejudice, a petitioner must show there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. See Strickland, 466 U.S. at 694. Further, as stated in

Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005), the applicant need

not show that he would have received a “more favorable disposition had he gone to

trial.” The prejudice inquiry in the involuntary guilty plea context is designed to
                                                                                    16
ensure that the defendant would actually have availed himself of the proceeding in

question. Johnson, 169 S.W.3d at 231-32.

      Mr. Garcia pled guilty to “Possession with Intent to Deliver” in 2003 due to

his former counsel’s affirmative misadvise. See Appendix B – Affidavit of Samuel

Oswaldo Garcia. As a result of his plea, Mr. Garcia was characterized as an

“aggravated felon” subject to automatic deportation. In his affidavit, Mr. Garcia

testified regarding what actions he would have taken had his former counsel

informed him of the specific consequences of his guilty plea. Id. If Mr. Garcia

would have known of the immigration consequences of his plea, he would not have

pled guilty to the charge of “Possession of a Controlled Substance with Intent to

Deliver.” Id. He would have instead fought the case. Id. The clear consequence of

exile from this country and separation from one’s family are extremely important

factors to be considered by any reasonable person, especially for an LPR like Mr.

Garcia, who had spent the majority of his life in the United States. Id. With his

testimony, Mr. Garcia has demonstrated that but for his former counsel’s deficient

advice regarding the specific and direct immigration consequences of his guilty plea,

an issue of vital importance to applicant, he would not have plead guilty. Id.

      For a non-citizen, serving time in prison may not be the most important factor

to consider when taking a plea. Mr. Garcia was removed (deported) on 2003. He

has lost his Lawful Permanent Resident Status; he will be separated from his family


                                                                                  17
and will be forever barred from returning to the United States. Id. Former counsel’s

misadvise to Mr. Garcia resulted in the violation of many of his fundamental liberty

interests. Namely, Mr. Garcia’s right to live and work in the United States and to

interact with his family within the United States has been violated. Id. In London

v. Plasencia, 459 U.S. 21, 34 (1982), the court wrote: “Plasencia’s interest here is,

without question, a weighty one. He stands to lose the right to stay and live and work

in this land of freedom…further he may lose the right to rejoin immediate family, a

right that ranks high among the interest of the individual.” Id. at 34. Mr. Garcia has

clearly been harmed by his former counsel’s affirmative misadvise. As such, the

second prong of Strickland has been met.

         b. Because Mr. Garcia has demonstrated that former counsel’s
            deficient performance prejudiced him, a claim of ineffective
            assistance of counsel is warranted pursuant to Strickland.

      As mentioned in Strickland, a Court deciding an ineffective assistance claim

must judge the “reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct.” See 466 U.S. at 690.

The defendant must identify the acts and / or omissions that are alleged to not have

been the result of reasonable professional judgment. Id. The Court must then

determine whether the identified acts and / or omissions of counsel were outside the

“wide range of professionally competent advice.” Id.




                                                                                   18
       Mr. Garcia relied on the affirmative misadvise of his former counsel that he

would “probably be okay” and that the “charge would probably not result in

deportation.” See Appendix B – Affidavit of Samuel Oswaldo Garcia. This in and

of itself constitutes a deficient performance by former counsel, since it mislead Mr.

Garcia to enter a guilty plea. Former counsel’s affirmative misstatements caused

Mr. Garcia to be prejudiced in that his guilty plea directly caused his deportation.

Id.   As a result, Mr. Garcia faced significant and direct consequences to his

immigration status in the United States. Id. Specifically, Mr. Garcia was exiled

from this country and will not be able to immigrate to the United States. Id.

       Chaidez makes clear that Mr. Garcia can bring a claim for ineffective

assistance of counsel for affirmative misstatements. Further, the evidence clearly

demonstrates that former counsel’s affirmative misadvise constitutes ineffective

assistance of counsel, in violation of the Sixth Amendment of the United States

Constitution, as described in Strickland. Accordingly, Mr. Garcia respectfully

requests that the underlying conviction for “Possession of a Controlled Substance

with Intent to Deliver” be vacated.

       Mr. Garcia respectfully requests that this Court make a determination that the

Trial Court abused its discretion in denying his Habeas petition since the evidence

clearly establishes that former counsel’s affirmative misadvise regarding the




                                                                                   19
immigration consequences of his plea constitute ineffective assistance in violation

of the Sixth Amendment of the United States Constitution.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Mr. Samuel Osvaldo Garcia

prays that this Court reverse the district court’s final order and remand this case for

further proceedings. Alternatively, Mr. Samuel Osvaldo Garcia prays that this Court

remand for further proceedings to allow Mr. Samuel Osvaldo Garcia to testify before

the Court and to compel the district court to enter findings of fact and conclusions

of law.

Respectfully submitted,


/s/ Rafael de la Garza
Rafael de la Garza, Esq.
Texas Bar No. 24076343


De La Garza & Ramirez
4943 South Jackson Road
Edinburg, Texas, 78539
(956) 533-1426
(956) 284-0518

Attorney for Appellant
Samuel Osvaldo Garcia




                                                                                    20
                          CERTIFICATE OF SERVICE

      I certify that I have served a true and correct copy of the above and
foregoing, Brief of Appellant, was served on the following counsel on December
31, 2014:

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

                                                      /s/ Rafael de la Garza
                                                      Rafael De La Garza, Esq.
                                                      COUNSEL FOR APPELLANT


                       CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
3,641 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).


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

                                                      /s/ Rafael de la Garza
                                                      Rafael De La Garza, Esq.
                                                      COUNSEL FOR APPELLANT

                                                      12/31/2014
                                                      Date



                                                                                     21
                          NO. 2014-DHC-2879

             IN THE THIRTEENTH COURT OF APPEALS

                      CORPUS CHRISTI, TEXAS




                    SAMUEL OSVALDO GARCIA,

                                                 Appellant,

                                   V.



                        THE STATE OF TEXAS

                                                 Appellee,



                 APPENDIX TO APPELLANT’S BRIEF



A. Final Order, Executed on September 5, 2014

B. Affidavit of Samuel Oswaldo Garcia

C. Affidavit of Attorney Daniel Sanchez




                                                              22
.•                                           '                                            ...)
                                            \.;I

                                                        CAUSE NO. 2002-CR-1042-E

     EX PARTE                                                      §       IN THE DISTRICT COURT
                                                                   &
                                                                   §       352TH JIIDICIAI DISTRICT
                                                                   §
     SAMUEL OSVALDO GARCIA                                         §     CAMERON COUNTY, TEXAS

     ORDER ON APPLICATION FOR POST -CONVICTION WRIT OF HABEAS CORPUS
      SEEKING RELIEF IN ACCORDANCE WITH ARTICLE 11.072 OF THE CODE OF
                           CRIMINAL PROCEDURE

                  On this day, came on for consideration, before this Court, the Post-Conviction Writ of

     Habeas eorpus Seeking Relief in Accmdance with Article l U:l92 of the eode of eriminal

     Procedure by Samuel Osvaldo Garcia (hereinafter Applicant) on May 8, 2014. After reviewing

     said Application, together with the evidence attached thereto, and the Response of the State in

     opposition thereto, and all other evidence brought before this Court, the Court is of th€ opinion

     that said Application should be denied.



                  THEREFORE, this Court DENIES any and all relief requested in Applicant's

     Application.



                                        -:.~
                  Signed on the)                    day of       ~~w.2014.
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                                                                                                              -
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                  F:t£DQ:~LOC~
             AURORA DE LA GARZA, CLERK

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                                                                                                         SCANNED
                                                                                                                   60
                          AFFIDAVIT OF SAMUEL OSWALDO GARCIA

STATE OF TEXAS                               §
COUNTY OF \)11\\.~                           §

        SAMUEL OSWALDO GARCIA, appeared in person before me today and stated under
oath:

       "My name is SAMUEL OSWALDO GARCIA, I am over 18-years-old and I am competent
to make this affidavit. The facts in this affidavit are within my personal knowledge and are true
and correct.

        I was born on September 18, 1969 in Guatemala, Guatemala. I was one offive (5) children
born from the union of Samuel Garcia and Marcelina Tobar-Mendez. All of my siblings currently
reside in Harlingen, Texas. Their names are as follows:

        1. Maria Isabel (age 45), is a receptionist at a home health service agency in Harlingen;
        2. Alvaro (age 41), is a bartender at Garcia' s Lounge in Harlingen, Texas;
        3. Marvin (age 39), is an automobile salesman at Southland Motors in Harlingen, Texas;
        4. Freddy Jovani (age 38), is self-employed as an automotive mechanic in Harlingen,
           Texas; and
        5. Selvin (age 37), owns and operates Garcia' s Lounge in Harlingen, Texas.

        I also have two maternal half-siblings. The first is Jose Antonio, who passed away in 1993.
The second was Thelma Elizabeth, who is currently 4 7 years old. Thelma is a housewife and
resides in Harlingen, Texas.

        Although my parents were together during the early part of my life, my parents separated
on or about 1978. My father went to live in California after he and my mother split up. I continued
living in Harlingen, Texas and kept close to my family. Then, on December 29, 1987, I was
granted Lawful Permanent Resident Alien status. So, in 1989, I decided to go live with my father
in California. I graduated from Bell High School in Bell, California in 1989.

       As soon as I graduated high school, I enlisted in the United State Marine Corps, in about
1990. I was stationed in San Diego, California. It was during this time that I began a relationship
with my common-law wife, Irma Covarrubias in California. A child by the name of Angie was
born as a result of our relationship.

       While I was stationed in San Diego, Irma continued living with my father. However, she
and my father did not get along. As a result, Irma left my father' s home to Zacatecas, Mexico in
1990. I decided to leave the Marine Corps to search for my wife and my child in Mexico. I left
California immediately to attempt to find them. Because of this, I was deemed absent without
leave (AWOL) and was dishonorably discharged from the Marine Corps.




                                                                                                 1
        I decided to come back to Harlingen, Texas when I was twenty two (22) years old, on or
about 1991. I worked as an electrician during this time. As a result of some things that happened
in a job I did for a customer, I was charged with Forgery.

       I was a Legal Permanent Resident during this time. I was appointed a criminal defense
attorney to represent me. I ended up entering a plea of guilty and got six (6) years probation. I
remember asking my attorney whether my plea would have negative consequences on my
immigration status. I remember my attorney telling me it wouldn't. I didn't have any run ins with
immigration shortly after I entered my plea, so I imagined my attorney had been correct when he
told me that I would not suffer negative immigration consequences because of my plea.

        In 1992, I began a relationship with Maribel Ruelas in Harlingen, Texas. Maribel and I
had three (3) children together: Roxylee Melissa, age 21 now; Jose Angel, age 19 now, and Samuel
Antonio, age 17 now. We were happy for a long time but ended up separating on or about the year
2000. My children and ex-wife currently live in Harlingen, Texas.

       As I mentioned, I have been an electrician during the majority of my life. I worked for
Borcher' s Electric, Jr. ' s Electric and Hamilton and Plumbing in San Benito, Texas. That is the
way the way I have always earned a living.

        In 2002, I developed a friendship with a man that I called, "Cruz" (which I believe was his
last name). Because of my skills as an electrician, I developed a close relationship with Cruz. I
happened to be hanging out with Cruz at his home on August 23, 2002. On that day, immediately
before I was about to leave Cruz's home, Cruz stuck a baggie of drugs on me. As I was about to
walk out of the house, the police began banging on the door. The police found the baggie that
Cruz had placed on me and arrested me for Possession of a Controlled Substance with Intent to
Deliver.

        I was appointed an attorney by the Court. His name was Daniel Sanchez. My attorney
told me that the state was offering probation. I asked my attorney if I would be deported if I pied
guilty to the charge and got probation. He said that I would probably be okay. He said that the
charge would probably not result in deportation. As I had done before on my last case, I trusted
my attorney. During the hearings I had in Court, I do not remember having ever been told that I
would be deported and that my green card would be taken away, if I pled guilty. So, on January
29, 2003, I pled guilty to Possession of a Controlled Substance with Intent to Deliver. I got a total
of 10 years probation.

        However, ICE soon picked me up and presented me before an Immigration Judge. The
Immigration Judge rescinded my green card and indicated that I would be deported. I was
extremely surprised and devastated. I was unable to afford an immigration attorney. I was told
that I was being deported for the possession case I had pied guilty to in 2003. Ifl had known that
I would be deported because of that plea of guilty, I would have pied not guilty and fought my
case.




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        Everything negative that has happened to me is a result of my plea of guilty from 2003. If
I had known the consequences I would be facing by entering my plea of guilty, I would have fought
my case and gone to trial to avoid a conviction.

        I respectfully request that this Court consider these facts in reopening my criminal cases.
I would have made a different decision if I would have known that entering guilty plea was
definitely going to result in my deportation. I was always told I'd be "okay."

       Thank you for considering this Affidavit in making your decision.




                                                                                                 3
      I swear under the penalty of perjury that the above is true and correct to the best of my
knowledge and belief.

                                           FURTHER THE AFFIANT SAYETH NOT.


                                            S~~IA
                                                                                           7
.   SWORN AND SUBSCRIBED to me, the undersigned authority, on this the / 5                       day of
 YY\t-hf       '2014.
      I




         My Commission Expires     C> / / 81 /
                                       ~     I
                                                 .;2LJ   I~                  ELIZABETH E. MAZA
                                                                           MY COMMISSION EXPIRES
                                                                              January 31, 2015




                                                                                                     4
                              AFFIDAVIT OF ATTORNEY DANIEL SANCHEZ

STATE OF TEXAS                               §
COUNTY OF CAMERON                            §
        "My name is Daniel A. Sanchez. I am over twenty-one years of age and have never been
convicted of a felony or a misdemeanor involving moral turpitude. I have personal knowledge of
the statements herein made. I am fully competent to testify to the matters stated herein, and the
matters stated herein are true and correct.

        I have been a duly licensed attorney in the State of Texas since 1998. I represented
Samuel Oswaldo Garcia on a criminal case in Hidalgo County, Texas in 2002. Mr. Garcia had a
pending charge for Possession of a Controlled Substance with Intent to Deliver 4 grams or more
but less than 200 grams, out of the 35]1h Judicial District Court, Cameron County, Texas, on or
about December 5, 2002.

        After having discussed the offense pending against Mr. Garcia, Mr. Garcia made a
decision that he would be entering a plea of guilty to the above-mentioned charge. Prior to
entering the plea, I discussed all plea paperwork with Mr. Garcia. Specifically, I discussed the
document titled, "Written Waiver and Consent to Stipulation of Testimony, Waiver of Jury and
Plea of Guilty," with Mr. Garcia.

       I also explained to Mr. Garcia that ifhe was not a citizen of the United States of America,
his plea of guilty or nolo contendere for the offense charged may result in deportation, the
exclusion from admission to this Country, or the denial of naturalization under federal law, or a
combination of the any of the aforementioned options.

       I do not remember discussing anything else with Mr. Garcia. Mr. Garcia pled guilty to
the charged offense thereafter.

      I swear under penalty of perjury that the above is true and correct to the best of my
knowledge and belief.

                                             FURTHER THE AFFIANT SAYETH NOT.


                                            :Jiii::sic~
       SWORN AND SUBSCRIBED to me, the undersigned authority, on this the             'd- S   day
of     T~           , 2014.



          KRYSTAL MALLEN
        MY COMMISSION EXPIRES
             Aprll 13, 2015



         My Commission Expires            b4/13/~1s
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