









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00202-CR
______________________________


ALAN RAY ROGERS, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 26968-A





Before Grant, Ross, and Cornelius,* JJ.
Opinion by Justice Cornelius
Concurring Opinion by Justice Ross
Dissenting Opinion by Justice Grant
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

O P I N I O N

	A jury convicted Alan Ray Rogers of aggravated assault and set his punishment,
enhanced by a prior felony conviction, at sixty years' confinement.  
	Rogers used a firearm to shoot at his former girlfriend at close range while she sat
in her car.  In a previous trial, Rogers was convicted of aggravated assault and received
a life sentence.  On appeal of that conviction, we affirmed Rogers' conviction, but
remanded the case for a new trial on punishment.  See Rogers v. State, 38 S.W.3d 725
(Tex. App.-Texarkana 2001, pet. ref'd).
	In the former appeal, we held that Rogers suffered egregious harm when the trial
court failed to give the jury the charge required by Tex. Code Crim. Proc. Ann. art. 37.07,
§ 4 (Vernon Supp. 2002), and then gave an incomplete response to the jury's question
asking how much time Rogers would spend in prison if it assessed a life sentence.  Rogers
v. State, 38 S.W.3d at 729-30.  After the second punishment hearing, a jury assessed
Rogers' punishment at sixty years' imprisonment.
	In this appeal, Rogers contends the trial court violated his right to due process of law
by charging the jury about the effect of good conduct time on his eligibility for early release. 
He contends the charge is misleading because good conduct time will not affect his
eligibility for early release.
	As it pertains to this issue, an inmate has two means of obtaining early release: 
parole and mandatory supervision.  Because the judgment in this case contains an
affirmative deadly weapon finding, Rogers is not eligible for parole until his actual calendar
time served, without consideration of good conduct time, equals one-half of the maximum
sentence or thirty calendar years, whichever is less.  See Tex. Gov't Code
Ann. § 508.145(d) (Vernon Supp. 2002).  Therefore, any good conduct time Rogers earns
will not accelerate the date on which he is eligible for parole.
	Release on mandatory supervision, when permitted by law, is generally allowed
when the amount of calendar time an inmate serves plus the amount of good conduct time
the inmate earns equals the sentence imposed.  Tex. Gov't Code Ann. § 508.147(a)
(Vernon 1998).  However, Rogers is not eligible for early release under mandatory
supervision procedures because the judgment contains an affirmative deadly weapon
finding.  See Tex. Gov't Code Ann. § 508.149(a)(1) (Vernon Supp. 2002).  Therefore, good
conduct time will not affect Rogers' eligibility for early release to mandatory supervision.
	The jury was given a charge similar to the mandatory charge required by
Article 37.07, § 4(a).  The actual charge given to the jury reads as follows:
		Under the law applicable in this case, the defendant, if sentenced to
a term of imprisonment, may earn time off the sentence imposed through the
award of good conduct time.  Prison authorities may award good conduct
time to a prisoner who exhibits good behavior, diligence in carrying out prison
work assignments and attempts at rehabilitation.  If a prisoner engages in
misconduct, prison authorities may also take away all or part of any good
conduct time earned by the prisoner.

		It is also possible that the length of time for which the defendant will
be imprisoned might be reduced by the award of parole.

		The defendant will not become eligible for parole until the actual time
served equals one-half of the sentence imposed or 30 years, whichever is
less.  Eligibility for parole does not guarantee that parole will be granted.

		It cannot accurately be predicted how the parole law and good
conduct time might be applied to this defendant if he is sentenced to a term
of imprisonment, because the application of these laws will depend on
decisions made by prison and parole authorities.

		You may consider the existence of the parole law and good conduct
time.  However, you are not to consider the extent to which good conduct
time may be awarded to or forfeited by this particular defendant.  You are not
to consider the manner in which the parole law may be applied to this
particular defendant.

The charge required by Article 37.07, § 4(a) reads as follows:

		Under the law applicable in this case, the defendant, if sentenced to
a term of imprisonment, may earn time off the period of incarceration
imposed through the award of good conduct time.  Prison authorities may
award good conduct time to a prisoner who exhibits good behavior, diligence
in carrying out prison work assignments, and attempts at rehabilitation.  If a
prisoner engages in misconduct, prison authorities may also take away all or
part of any good conduct time earned by the prisoner.

		It is also possible that the length of time for which the defendant will
be imprisoned might be reduced by the award of parole.

		Under the law applicable in this case, if the defendant is sentenced to
a term of imprisonment, he will not become eligible for parole until the actual
time served equals one-half of the sentence imposed or 30 years, whichever
is less, without consideration of any good conduct time he may earn.  If the
defendant is sentenced to a term of less than four years, he must serve at
least two years before he is eligible for parole.  Eligibility for parole does not
guarantee that parole will be granted.

		It cannot accurately be predicted how the parole law and good
conduct time might be applied to this defendant if he is sentenced to a term
of imprisonment, because the application of these laws will depend on
decisions made by prison and parole authorities.

		You may consider the existence of the parole law and good conduct
time.  However, you are not to consider the extent to which good conduct
time may be awarded to or forfeited by this particular defendant.  You are not
to consider the manner in which the parole law may be applied to this
particular defendant.

	There are these differences between the statutorily prescribed version of the charge
and the version given in this case:  (1) In paragraph one of the statutory version, the
charge uses the phrase "period of incarceration imposed," where in the charge given in this
case, the words "sentence imposed" are used; (2) In paragraph three of the statutory
charge, there is this language:  "Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for parole until . . . ." 
Instead of this language, the charge in this case says simply, "The defendant will not
become eligible for parole until . . . ."; (3) The statutory charge contains this language,
which is omitted entirely from the charge in this case:  "without consideration of any good
conduct time he may earn.  If the defendant is sentenced to a term of less than four years,
he must serve at least two years before he is eligible for parole."
	We find that these differences in the charge given here are not significant or harmful
and that the charge as given by the trial court substantially complies with Article 37.07,
§ 4(a).  The difference set out in (1) above does not constitute an error.  The phrases
"period of incarceration imposed" and "sentence imposed" are substantially the same.  We
note that it is the period of incarceration or the sentence "imposed" that is mentioned in the
charges, not that "served."
	The language in (2) above that is omitted from the charge in this case is actually
surplusage, and would have added nothing to the charge, because Rogers was not eligible
to use good time credit for early release.  Moreover, Rogers was not eligible for community
supervision, so the jury was required to give him a term of imprisonment.
	Likewise, the omitted language set out in (3) above was unnecessary in this case
and would only have misled the jury, because Rogers could not use good conduct time for
early release and it was impossible for him to receive punishment of less than four years. 
See Tex. Pen. Code Ann. § 12.32 (Vernon 1994).
	If it was error for the trial court to make these changes, and we think it was not, the
error certainly did not harm Rogers.  Moreover, Rogers does not complain of these
differences between the required charge and the charge actually given in this case, but
only that the charge given denied him due process.
	Rogers' actual complaint on appeal is that the charge required by Article 37.07,
§ 4(a) denied him due process because he is not eligible for good conduct time.  The same
contention has been rejected by numerous courts, including this one.  See Luquis v. State,
72 S.W.3d 355, 361 (Tex. Crim. App. 2002); Muhammad v. State, 830 S.W.2d 953, 956
(Tex. Crim. App. 1992); Oakley v. State, 830 S.W.2d 107, 111-12 (Tex. Crim. App. 1992);
Bui v. State, 68 S.W.3d 830, 841 (Tex. App-Houston [1st Dist.] 2002, no pet.); Washington
v. State, 59 S.W.3d 260 (Tex. App.-Texarkana 2001, pet. ref'd); Donoho v. State, 39
S.W.3d 324, 331-32 (Tex. App.-Fort Worth 2001, pet. ref'd); Espinosa v. State, 29 S.W.3d
257, 261-62 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd); Cagle v. State, 23 S.W.3d
590, 594 (Tex. App.-Fort Worth 2000, pet. ref'd); Edwards v. State, 10 S.W.3d 699, 705
(Tex. App.-Houston [14th Dist.] 1999), pet. dism'd, improvidently granted, 67 S.W.3d 228
(Tex. Crim. App. 2002) (per curiam).
	Moreover, even if the jury improperly considered when Rogers would be eligible for
parole in assessing his punishment, Rogers encouraged it to do so in his final argument:
		What kind of sentence?  I don't know.  The D.A. told you he wants life. 
[Rogers is] forty years old.  The jury charge tells you he's going to have to
serve - he's got to serve absolutely half of what he gets.  Not that he gets out
then, but he's got to serve half or thirty years at the most before he can even
come up for parole.  He's 40.  What do you give him?  Fifteen, twenty years? 
Twenty years, he'll be fifty before he comes up for parole.
Therefore, even if the jury did consider when Rogers would be eligible for parole in
assessing his punishment, Rogers may not complain of an error he encouraged the jury
to make.

	The judgment is affirmed.

							William J. Cornelius
							Justice*

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment


CONCURRING OPINION

	I agree the charge the trial court gave the jury did not violate Rogers' right to due
process of law.  I cannot agree, however, that it was not error for the trial court to give a
charge that deviated from the statutory charge or that the deviations between the actual
jury charge and the statutory charge are immaterial.  Therefore, I concur only in the
judgment of this Court.
	The wisdom of the statutory charge has been questioned in cases, such as this, in
which good conduct time the defendant earns will not accelerate his or her eligibility for
release on parole or affect his or her eligibility for release to mandatory supervision.  See,
e.g., Luquis v. State, 72 S.W.3d 355, 362 (Tex. Crim. App. 2002) ("To those who are
familiar with the Texas mandatory supervision law and its potential to lesson [sic] the actual
amount of time an inmate spends in prison, this language is somewhat misleading.");
Gilmore v. State, 68 S.W.3d 741, 743-44 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd)
(Frost, J., concurring); Jimenez v. State, 992 S.W.2d 633, 637 (Tex. App.-Houston [1st
Dist.] 1999), aff'd on other grounds, 32 S.W.3d 233 (Tex. Crim. App. 2000), overruled, Bui
v. State, 68 S.W.3d 830 (Tex. App.-Houston [1st Dist.] 2002, no pet. h.).  There can be no
doubt, however, that the Legislature intended the charge be given in such cases.  As the
Texas Court of Criminal Appeals commented recently:
		The Texas Legislature enacted legislation that requires the trial judge
to instruct the jury in the precise wording that the statute recites.  Article
37.07, section 4(a) sets out, verbatim, the words that the trial judge is to use. 
There are even quotation marks around the wording of the instruction.  That
is at least some indication that the Legislature did not want any creative
deviations from its chosen language.  The Legislature prefaced its instruction
language with directions that "the court shall charge the jury in writing as
follows:  . . ." The use of the word "shall" generally indicates a mandatory
duty.  There is no reason to think that the Legislature enacted merely a
suggested parole law jury instruction, one that trial judges should cut and
paste as they see fit.

Luquis, 72 S.W.3d at 363.
	In the first appeal by this same defendant, we reversed the judgment on punishment
because the trial court failed to give the statutory charge and then gave an incomplete
response when the jury asked for additional information.  See Rogers v. State, 38 S.W.3d
725, 729-30 (Tex. App.-Texarkana 2001, pet. ref'd).  The trial court in the present case
again deviated from the statutory charge.  This was error, even though Rogers never
objected to the error at trial.  As the Texas Court of Criminal Appeals commented in
Luquis, "Trial judges may occasionally doubt the wisdom of a particular law, but they are
not free to ignore explicit legislative directions unless those directives are clearly
unconstitutional."  Luquis, 72 S.W.3d at 363.
	The question then is whether the jury charge is unconstitutional.  The majority
correctly notes that the constitutionality of the statutory charge has been upheld by
numerous courts, including most recently the Texas Court of Criminal Appeals.  See id. at
361.  However, we are not faced in the present case with the charge contained in the
statute; rather, we are faced with the charge as modified by the trial court.
	The majority concludes the differences between the statutory charge and the charge
as given are immaterial and, therefore, the charge as given is not unconstitutional. 
However, the differences between the statutory charge and the charge as given are
significant and potentially misleading.
	In the first paragraph of the charge, the jury is instructed the defendant may earn
time off "the sentence imposed," rather than "the period of incarceration imposed" as
provided in the first paragraph of the statutory charge.  See Tex. Code Crim. Proc. Ann.
art. 37.07, § 4(a) (Vernon Supp. 2002).  In the third paragraph, the jury is instructed that
Rogers will not become eligible for parole until the actual time served equals one half of
"the sentence imposed" or thirty years, whichever is less.  However, the third paragraph
omits the portion of the statutory charge informing the jury that Rogers will serve this time
regardless of any good conduct time he might earn.  See Tex. Code Crim. Proc. Ann. art.
37.07, § 4(a).
	The instruction in the first paragraph tells the jury Rogers may earn time off "the
sentence imposed."  The instruction in the third paragraph tells the jury Rogers will not
become eligible for parole until the actual time he serves equals the lesser of one half "the
sentence imposed" or thirty years.  Reading these paragraphs in conjunction, the jury could
be misled into believing any good conduct time Rogers earns will reduce "the sentence
imposed," making him eligible for parole sooner.  By omitting the instruction in paragraph
three that good conduct time will not operate to accelerate Rogers' eligibility for parole, the
trial court failed to provide the instruction that could have corrected any misunderstanding
caused by its previous instructions.
	The majority dismisses the differences between the phrases "sentence imposed"
and "period of incarceration imposed," concluding they are substantially the same and in
no way related to the actual time served.  It is not the differences between these phrases
that is significant; rather, it is the fact the jury is told the "sentence imposed" may be
reduced by the amount of good conduct time earned, but is not told Rogers must first serve
one half his sentence or thirty years before good conduct time will affect his eligibility for
parole.  The fact that the trial court changed the phrase "period of incarceration imposed"
to "sentence imposed" in the first paragraph, making it consistent with the phrase in the
third paragraph, heightens the problem.
	A reasonable jury could read this charge and conclude Rogers may become eligible
for parole when he has served one half of the sentence the jury imposed less any good
conduct time Rogers earned.  This is not an accurate statement of the law governing
Rogers' eligibility for parole.  Therefore, the charge is potentially misleading.
	I do not believe, however, that the charge, when read as a whole, violated Rogers'
right to due process of law.  In addressing a similar challenge to the charge contained in
Article 37.07, § 4(a), the Texas Court of Criminal Appeals held the appellant had the
burden of showing a reasonable likelihood that the jury was misled by the charge or that
it assessed a higher sentence based on any misconstruction of the charge.  Luquis, 72
S.W.3d at 367-68.  This Rogers cannot do.
	In Luquis, the court noted there was "no evidence or even a plausible argument that
this jury connected 'good conduct time' with release on mandatory supervision, a legal
concept about which the jury was told nothing."  Id. at 362-63.  Despite the differences
between the charge given in the present case and the statutory charge given in Luquis, the
same conclusion applies in the present case because here, as in Luquis, the jury was not
informed about the existence of mandatory supervision.
	As mentioned previously, the charge as given is misleading with respect to the
possible impact of good conduct time on Rogers' eligibility for parole.  Still, the jury was
informed that Rogers "may" earn time off "the sentence imposed" through good conduct
time, not that he necessarily would earn such time off.  In addition, the jury was instructed
not to consider the extent to which good conduct time may be awarded to or forfeited by
Rogers and not to consider the manner in which the parole law might be applied to Rogers. 
Assuming the jury followed the instruction as a whole, it would not have based the
punishment it assessed on the possibility that good conduct time might make Rogers
eligible for parole sooner, as the language of the charge would mislead it to believe.
	Rogers contends his sixty-year sentence is indicative of the jury's intent to make him
eligible for parole as late as possible in an effort to mitigate the impact good conduct time
would have on the length of his incarceration.  However, there is no indication the sentence
reflects a misunderstanding of the impact good conduct time will have on his sentence. 
In fact, Rogers' sentence arguably reflects the contrary proposition.
	The jury was told Rogers would serve the lesser of one half of "the sentence
imposed" or thirty years before he would be eligible for parole.  One half of a sixty-year
sentence is thirty years, meaning that, under the instruction the jury was given, if Rogers
earned any good conduct time, he would be eligible for parole before he served thirty
years.  If the jury were concerned that good conduct time would make Rogers eligible for
parole earlier than thirty years, then it would have assessed a punishment that, even if it
were reduced by good conduct time, would not have made Rogers eligible for parole
before thirty years.  For example, if the jury assessed a ninety-nine-year sentence, then
Rogers would have to earn over thirty-nine years of good conduct time to have reduced
"the sentence imposed" to a level half of which would be less than thirty years.
	Arguably, the sentence reflects that the jury assessed a punishment calculated to
make Rogers eligible for parole on the latest date possible without consideration of the
amount of good conduct time he could earn.  If that is the case, then the sentence would
be improper insofar as it was based, not on the punishment Rogers deserved for his crime,
but on the jury's desire to influence when Rogers would be eligible for parole.
	For example, if the jury believed Rogers deserved a thirty-year sentence, but
assessed a sixty-year sentence to ensure he served thirty years, then the sentence would
be improper because Rogers could end up serving more time in jail than he deserved for
his crime.  In short, the sentence would reflect the jury's assumption that Rogers would
receive parole once he was eligible, a consideration that, under either Article 37.07, § 4(a)
or the instruction it was given, the jury was not entitled to make.
	Rogers never makes this contention on appeal.  Further, there is no indication in the
record the jury considered anything other than the sentence Rogers deserved for his crime. 
To conclude otherwise would be to say the jury could not assess a punishment that would
also make a defendant eligible for parole on the latest date possible under the law.  I also
agree with the majority that, if the jury did improperly consider when Rogers would be
eligible for parole, Rogers encouraged the jury to make this error in his closing argument
and should not be heard to complain on appeal.
	For these reasons, I concur in the judgment of this Court.

							Donald R. Ross
							Justice

DISSENTING OPINION

	Years ago there was a hue and cry over the courts' failure to inform jurors about
good conduct time and eligibility for parole.  This absence of instruction created the danger
of jurors speculating about these matters and possibly basing their verdicts on myths,
rumors, and uninformed views.  Thus, it was a proper endeavor for the Legislature to seek
to require that the jurors be informed of the laws pertaining to good conduct and parole. 
	The instruction the Legislature produced to inform the jurors regarding cases such
as this, Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2002), as it is written
now, can only function to deceive, confuse, and invite erroneous conclusions.  Although
the defendant's conduct will be evaluated when the defendant becomes eligible for parole,
the defendant is not entitled to good conduct time.
	Although the instruction does not label the method of reduction involving good
conduct time or "mandatory supervision," it implies a method distinct from parole, which
is sufficient to make the instruction regarding such defendants substantively incorrect and
misleading, regardless of how much the jurors know about the justice system.  It is a
disservice both to the defendant and the jurors involved to provide them with misleading
information. This instruction is fundamentally unfair, denying the defendant due course of
law in violation of  Article I, § 19 of the Texas Constitution.  The burden should not be on
each defendant to meet the near-impossible task of proving that the jury was in fact misled
by the instruction and that the defendant was actually harmed.  The Legislature should
amend the instruction to cure this defect.
	The instruction actually given in this case is even less accurate than the statutory
instruction in that it not only indicates a separate and distinct way good conduct time may
decrease a defendant's period of incarceration, and it specifically states the defendant
"may earn time off the sentence imposed through the award of good conduct time."
	I disagree that statements made by Rogers's counsel in the closing arguments
waives Rogers's complaint.  A jury is more likely to, and should, be guided by the court's
charge, not what a lawyer says in arguing his or her side of the case. 
	Because the charge and the statute are fundamentally unfair as applied to this type
of case, I believe it violates the defendant's rights of constitutional due process.  The
Legislature should consider revising the instruction under Article 37.07, § 4(a) to eliminate
or clarify in what way good conduct time may affect defendants who are not subject to the
instruction now contained in the statute.
	I would reverse the punishment portion of the case because the charge inaccurately
tells the jury that the defendant in this case can earn earn time off the sentence imposed
and thus violates the defendant's right of constitutional due process.

							Ben Z. Grant
							Justice

Date Submitted:	May 6, 2002
Date Decided:	October 8, 2002

Publish


mso-pagination:widow-orphan'> 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-11-00143-CR
                                                ______________________________
 
 
                             BENITO ELIZONDO-VASQUEZ,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 426th
Judicial District Court
                                                               Bell County, Texas
                                                            Trial
Court No. 66931
 
                                                           
                                       
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                                        Opinion by Justice Moseley



                                                                   O P I N I O N
 
            Benito
Elizondo-Vasquez (a citizen of Mexico legally residing
in Texas) was charged with possession of between fifty pounds and 2,000 pounds
of marihuana,[1] a
second-degree felony offense.  On
Vasquez plea of guilty under a plea bargain agreement, the State recommended
the imposition of a twelve-year sentence, a recommendation followed by the 27th
Judicial District Court of Bell County, Texas. 
Vasquez has now appealed with the permission of the trial court.[2]  
Positions on Appeal
            Counsel
on appeal raises the issue of ineffective assistance of counsel, asserting that
this ineffectiveness rendered Vasquez plea of guilty involuntary.  In its reply brief, the State reviewed the
case and relevant caselaw, concluding that
controlling United States Supreme Court authority requires a conclusion that
Vasquez trial attorney was constitutionally ineffective for having failed to
inform Vasquez that he would certainly be deported as a result of his
conviction for such a crime; going further, the State concurs that Vasquez
plea of guilty was necessarily involuntary due to trial counsels error,
thereby requiring reversal for a new trial. 
            We
note that it is the primary duty of all prosecuting attorneys, including any
special prosecutors, not to convict, but to see that justice is done.  Tex.
Code Crim. Proc. Ann. art. 2.01 (West 2005).  
            Admirably,
in this circumstance, the State has not only recognized the futility of blindly
opposing what appears to be settled law, it has fulfilled its primary
statutorily-imposed duty to see that justice is done in this case.  In doing so, the State has performed
ethically and in the best tradition of the legal profession, a course of action
we wholeheartedly commend.  
Factual Background
            Vasquez
was stopped while driving a vehicle which contained 194 pounds of
marihuana.  After several meetings with
his appointed counsel, Vasquez decided to plead guilty to the charge.  Vasquez was given (and stated that he
understood) the standard statutory admonishments, which included advice that a
conviction of a crime such as this could result in his deportation from the
United States. 
            Vasquez
filed a motion for new trial, upon which a hearing was conducted.  In relevant part, the motion alleged that
trial counsel did not advise him that his plea of guilty to this offense would
(not could) result in his deportation. 
At the hearing, trial counsel testified that Vasquez primary concern was
how the charge and any resulting incarceration would impact his status as an
immigrant.  Trial counsel continued in
his testimony that he told Vasquez that it was possible that this case could
adversely impact that status, but never gave him a definitive answer, telling
Vasquez to consult with an immigration lawyer.  Counsel did not research the law, and it is
apparent that he was unaware that deportation or removal is mandatory upon
conviction for possession of a large quantity of marihuana and that trial
counsel also was unaware that exceptions to that result did not exist in immigration
law where a guilty plea was entered. 
Counsel stated that he told Vasquez he had a good chance at probation
(community supervision), but did not know what effect a deferred adjudication
or a probated sentence might have on his status.  
            Vasquez
testified that he inferred from counsels statements he would get probation[3] and
that the expected probation would not jeopardize his status as a legal
immigrant.  He continued on to say that
his trial counsel told him repeatedly not to worry because he would get
probation and that because he would get probation, he would not be deported.
Review of Applicable Law
            The
standard of testing claims of ineffective assistance of counsel is set out in Strickland
v. Washington, 466 U.S. 668 (1984). 
To prevail on this claim, an appellant must prove by a preponderance of
the evidence (1) that his counsels representation fell below an objective
standard of reasonableness and (2) that the deficient performance prejudiced
the defense.  Strickland, 466 U.S.
at 689; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).  
            The
two-pronged test of Strickland applies to guilty pleas.  Hill v. Lockhart, 474 U.S. 52, 58
(1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987).  The voluntariness of the plea depends (1) on
whether counsels advice was within the range of competence demanded of
attorneys in criminal cases, and if not, (2) on whether there is a reasonable
probability that, but for counsels errors, appellant would not have entered
his plea and would have insisted on going to trial.  Hill, 474 U.S. at 59; Ex parte
Morrow, 952 S.W.2d 530, 536
(Tex. Crim. App. 1997).
            In
Padilla v. Kentucky, ___ U.S. ___,
130 S.Ct. 1473 (2010), the United States Supreme
Court held that a criminal defense lawyer did not provide his noncitizen client
effective assistance of counsel under Strickland
when he did not warn him that he was almost certain to be deported if he pled
guilty.  The Court recognized that counsel
could easily have determined that his plea would make him eligible for
deportation simply from reading the text of the statute, which addresses not
some broad classification of crimes but specifically commands removal for all
controlled substances convictions except for the most trivial of marihuana
possession offenses.  Id. 130 S.Ct. at
1483; see 8 U.S.C.A. 1227(a)(2)(B)
(West, Westlaw current through 2011).  As
in this case, the consequences of the plea could easily be determined from the
statute, the deportation was presumptively mandatory, and his counsels advice
was incorrect.  Padilla, 130 S.Ct. at 1484.
            The
high court recognized that some areas of immigration law and such consequences
were unclear or uncertain and that the duty of counsel in such cases
accordingly is more limited.  However,
when the deportation consequence is truly clear, as it was here, the duty to
give correct advice is equally clear.  Id. at 1477.  Counsels suggestion that Vasquez should ask a
different, additional attorney is not sufficient.  Further, the United States Supreme Courts
analysis of the statute points out that for purposes of immigration, an alien
is convicted where he is found guilty, or when he enters a plea of guilty and
some form of punishment, penalty, or restraint on liberty is imposed.  Id.
at 1483; 8 U.S.C.A. 1101(a)(48)(A) (West, Westlaw current through 2011).  Thus, any plea of guilty would result in the application
of immigration statutes and deportation would be presumptively mandatory and
virtually certain.  Padilla, 130 S.Ct. at 1483. 
            Vasquez
testified that he would not have pled guilty had he known that such a plea
would result in his deportation from the United States.  He testified that his immigration status was
his primary concern and that he discussed it at every meeting with trial
counsel.  In those discussions, he
specifically inquired of trial counsel about the issue and the effect his plea
would have upon it, as well as potential outcomes.  See Ex
parte Tanklevskaya, No. 01-10-00627-CR, 2011 Tex.
App. LEXIS 4034 (Tex. App.Houston [1st Dist.] May 26, 2011, pet. filed) (similar
situation with erroneous information provided about immigration
consequencerecognizing that standard admonishment that a plea of guilty may result in deportation is
insufficient warning per Padilla).  
            Other
appellate courts have addressed this situation and concluded that such a
failure to provide the requisite advice constituted deficient performance under
Strickland and Padilla.  We must agree.  Further, in light of clear and consistent
evidence that Vasquez would not have pled guilty but for the deficient advice,
we must likewise hold that due to counsels ineffective assistance, the plea
was involuntary.
            We
reverse the case and remand to the trial court for further proceedings. 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          October 17, 2011
Date Decided:             October 18, 2011
 
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[1]Tex. Health & Safety Code Ann. §
481.121 (West 2010).
 


[2]Originally appealed to the Third Court of Appeals,
this case was transferred to this Court by the Texas Supreme Court pursuant to
its docket equalization efforts.  See Tex.
Govt Code Ann. § 73.001 (West 2005).  We are unaware of any conflict between
precedent of the Third Court of Appeals and that of this Court on any relevant
issue.  See Tex. R. App. P.
41.3.


[3]The
plea bargain agreement as signed by Vasquez and his trial counsel contained no
mention of a recommendation by the State of community supervision or deferred
adjudication. 


