Reversed and Remanded and Majority and Dissenting Opinions filed July 10, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00227-CR

                          LEONARDO AGUILAR, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 248th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1290892


                        MAJORITY OPINION


       Appellant Leonardo Aguilar appeals from the trial court‘s denial of his application
for writ of habeas corpus. Appellant, a foreign national, contends that his trial counsel in
the underlying proceeding failed to apprise him of the adverse immigration consequences
of a guilty plea, thus rendering his plea involuntary under Padilla v. Kentucky, 130 S. Ct.
1473 (2010). Following the dictates of that case, we reverse and remand for further
proceedings.
                                             Background

        In April 2005, appellant was charged with felony possession of less than a gram of
cocaine. In October 2006, appellant pleaded guilty, and the charge was reduced to a
class-A misdemeanor. As requested by the State, appellant was sentenced to ten days in
jail and ordered to pay a five-hundred-dollar fine.

        Appellant filed an application for writ of habeas corpus on December 21, 2010. In
an affidavit presented to the court, appellant averred that his counsel in the cocaine
possession case only told him that his guilty plea could result in deportation and failed to
inform him that the plea would make deportation presumptively mandatory. Appellant
further stated that if his counsel had told him that a guilty plea would make deportation
presumptively mandatory, he would not have pleaded guilty and would have instead
insisted on a trial. He said that residence in the United States was very important to him
and was the most important thing to him in respect to the underlying case.

        Charles Medlin, appellant‘s counsel in the underlying case, stated in his affidavit
that it was his practice at the time to advise clients that a guilty plea could result in
deportation, exclusion of admission, or denial of naturalization, as was also stated in the
plea admonishments filed with the court.1 Medlin further stated that he followed that
practice in this case and did not tell appellant whether a guilty plea definitely would or
would not have immigration consequences.

        Appellant urged the court to grant habeas corpus relief on the ground that Medlin
had provided ineffective assistance of counsel by failing to inform appellant that pleading
guilty to possession of a controlled substance rendered his deportation presumptively
mandatory. At the conclusion of a brief hearing, during which the two affidavits were
admitted into evidence, the trial judge denied appellant‘s application. The judge stated


        1
          The form plea admonishments contain the following language in paragraph 4: ―CITIZENSHIP:
If you are not a citizen of the United States of America, a plea of either Guilty or Nolo Contendre (No
Contest) for this offense may result in your deportation, or your exclusion from admission to the country,
or the denial of your naturalization under applicable federal law.‖

                                                    2
on the record that Medlin had sufficiently counseled appellant pursuant to prevailing
professional norms. Neither findings of fact nor conclusions of law were requested or
filed.

                                  Habeas Corpus Review

         We generally review a trial court‘s decision on an application for habeas corpus
under an abuse of discretion standard of review. See Ex parte Garcia, 353 S.W.3d 785,
787 (Tex. Crim. App. 2011). An applicant seeking post-conviction habeas corpus relief
bears the burden of establishing by a preponderance of the evidence that the facts entitle
him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We
consider the evidence presented in the light most favorable to the habeas court‘s ruling.
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). This deferential review
applies even when the trial court‘s findings are implied rather than explicit and based on
affidavits rather than live testimony. Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex.
Crim. App. 2006); Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). If the
resolution of the ultimate question turns on an application of legal standards, we review
the determination de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.
2003), overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.
Crim. App. 2007).

                   Guilty Pleas, Ineffective Assistance Claims & Padilla

         The test for determining the validity of a guilty plea is ―whether the plea
represents a voluntary and intelligent choice among the alternative courses of action open
to the defendant.‖ North Carolina v. Alford, 400 U.S. 25, 31 (1970). The two-pronged
Strickland v. Washington test applies to challenges to guilty pleas, such as the one in the
present case, premised on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S.
52, 58 (1985) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland,
in order to demonstrate ineffective assistance of counsel, a defendant must first show that
counsel‘s performance was deficient, i.e., that his assistance fell below an objective
standard of reasonableness; second, a defendant must affirmatively prove prejudice by

                                             3
showing a reasonable probability that, but for counsel‘s unprofessional errors, the result
of the proceeding would have been different.              466 U.S. at 687-88, 694; see also
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In order to satisfy
the prejudice prong in a guilty plea case, a defendant or habeas corpus applicant ―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.‖ Hill, 474 U.S. at 59.

        In Padilla, the Supreme Court addressed the application of these principles where
the voluntariness of a guilty plea is brought into question because a defendant‘s counsel
failed to apprise him or her of the immigration consequences of the plea. 130 S. Ct.
1473.    The court determined that ―advice regarding deportation is not categorically
removed from the ambit of the Sixth Amendment right to counsel.‖ Id. at 1481-82. After
reviewing historical developments in immigration law, the court concluded that under
current law, ―if a noncitizen has committed a removable offense . . . his removal is
practically inevitable but for the possible exercise of limited remnants of equitable
discretion vested in the Attorney General to cancel removal for noncitizens convicted of
particular classes of offenses.‖ Id. at 1480. Moreover, preserving the opportunity to
remain in the United States might be a more important consideration to a particular
defendant in considering a plea offer than the possibility of incarceration. Id. at 1484.

        Regarding the advice required of counsel when presented with possible
immigration consequences from a guilty plea, the Court acknowledged immigration
issues can be complex and indicated that the certainty of the advice could fluctuate
depending on the certainty of the adverse immigration consequences.                  Id. at 1483.2

2
  The Court stated that it ―agree[d] with Padilla that constitutionally competent counsel would have
advised him that his conviction for drug distribution made him subject to automatic deportation.‖
Padilla, 130 S.Ct. at 1478. The Court later explained that the terms of the immigration statute under
which Padilla himself fell were ―succinct, clear, and explicit‖ and thus ―his deportation was
presumptively mandatory.‖ Id. at 1483. The Court further noted, however, that:
        [t]here will . . . undoubtedly be numerous situations in which the deportation
                                                 4
Although the Padilla Court did not reach the prejudice prong of the Strickland test, as
such was not before the Court in that appeal, it did note that ―to obtain relief on this type
of claim, a petitioner must convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.‖ Id. at 1485.

                                  Padilla Applies Retroactively

       Because appellant‘s conviction occurred before the Supreme Court issued its
opinion in Padilla, we must first determine whether that opinion should be applied
retroactively in collateral proceedings such at this habeas corpus action. Neither the
Supreme Court, the Texas Court of Criminal Appeals, nor this court has addressed this
issue. Two of our sister courts, the El Paso Court of Appeals and the First Court of
Appeals, as well as a number of courts from other jurisdictions, have determined that
Padilla should apply retroactively. See Ex parte De Los Reyes, 350 S.W.3d 723, 728-29
(Tex. App.—El Paso 2011, pet. granted); Ex parte Tanklevskaya, 361 S.W.3d 86, 93-95
(Tex. App.—Houston [1st Dist.] 2011, pet. filed); see also United States v. Orocio, 645
F.3d 630, 641 (3d Cir. 2011); McNeill v. United States, No. A–11–CA495 SS, 2012 WL
369471, at *3 (W.D. Tex. Feb. 2, 2012).                Other courts in other jurisdictions have
disagreed, holding that Padilla does not apply retroactively. See, e.g., Chaidez v. United
States, 655 F.3d 684, 694 (7th Cir.2011), cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30,
2012) (No. 11-820); United States v. Hong, 671 F.3d 1147, 1150-59 (10th Cir. 2011).
For the reasons stated in the former set of opinions and discussed below, we agree with
our sister courts and the other courts holding Padilla applies retroactively.3


       consequences of a particular plea are unclear or uncertain. The duty of the private
       practitioner in such cases is more limited. When the law is not succinct and
       straightforward . . ., a criminal defense attorney need do no more than advise a noncitizen
       client that pending criminal charges may carry a risk of adverse immigration
       consequences. But when the deportation consequence is truly clear, as it was in this case,
       the duty to give correct advice is equally clear.
Id.
       3
         As noted, the United States Supreme Court has granted certiorari in Chaidez, and the Court of
Criminal Appeals has granted the petition for discretionary review in De Los Reyes. However, we do not
wait on the higher courts to issue their opinions. See generally Tex. R. App. P. 31.2 (―An appeal in a
                                                   5
        The Court of Criminal Appeals has adopted the United States Supreme Court‘s
analysis in Teague v. Lane, 489 U.S. 288 (1989) to determine whether a rule of law
applies retroactively in Texas habeas corpus proceedings. E.g., Ex parte Lave, 257
S.W.3d 235, 236-7 (Tex. Crim. App. 2008). The threshold issue under Teague is whether
the rule in question is a ―new rule‖ or an ―old rule.‖ With two stated exceptions, ―new
constitutional rules of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced.‖ See Teague, 489 U.S. at 310.4 A
rule is considered ―new‖ if it ―breaks new ground,‖ ―imposes a new obligation on the
States or the Federal Government,‖ or was not ―dictated by precedent existing at the time
the defendant‘s conviction became final.‖ Teague, 489 U.S. at 301 (emphasis omitted);
see also Graham v. Collins, 506 U.S. 461, 467 (1993). ―Old rules‖ are applicable on both
direct and collateral review. See Whorton v. Bockting, 549 U.S. 406, 416 (2007) (holding
Crawford v. Washington, 541 U.S. 36 (2004), announced a new rule not applicable in
habeas corpus proceeding because it was not dictated by precedent and was ―flatly
inconsistent with the prior governing precedent‖).

        As the split in authority suggests, the question of whether Padilla should be
applied retroactively, pursuant to Teague, is a very close call. The key issue in Padilla
was whether Padilla‘s counsel had performed deficiently as assessed under the first prong
of the Strickland test. Padilla, 130 S. Ct. at 1482. In addressing the issue, the Padilla
majority grounded its determination firmly in past precedent, particularly McMann v.
Richardson, 397 U.S. 759, 771 (1970), and progeny (holding a defendant is entitled to the
effective assistance of competent counsel in deciding whether to plead guilty); Strickland
and progeny (providing rules governing the ineffective assistance of counsel analysis);
and I.N.S. v. St. Cyr, 533 U.S. 289, 323 (2001) (recognizing the potentially paramount
importance noncitizen clients might attach to remaining in the United States). Padilla,

habeas corpus . . . proceeding will be heard at the earliest practicable time.‖).
        4
          Although not applicable here, a new rule falls within the Teague exceptions if it: (1) places
certain kinds of conduct beyond the power of the criminal law-making authority to proscribe or (2)
constitutes a watershed rule change implicating the fundamental fairness of the trial. See Danforth v.
Minnesota, 552 U.S. 264, 274-75 (2008) (citing Teague, 489 U.S. at 311, 312, 313).

                                                       6
130 S. Ct. at 1480-87.5 Moreover, Padilla did not overturn any prior precedent of the
Court. See Hong, 671 F.3d at 1155.

        Because of this, several courts have concluded that the majority in Padilla did not
announce a ―new rule,‖ as defined by Teague, but was simply applying existing
precedent to particular facts or context regarding which the Supreme Court had not
previously, explicitly spoken. See, e.g., Orocio, 645 F.3d at 639-41 (―Padilla followed
from the clearly established principles of the guarantee of effective assistance of
counsel.‖); Tanklevskaya, 361 S.W.3d at 93-94 (discussing analyses of other courts); see
also Lewis v. Johnson, 359 F.3d 646, 655 (3d Cir. 2004) (explaining that because the
Strickland test necessarily requires a case-by-case examination of particular
circumstances, application of that test should be deemed to create a ―new rule‖ only when
it is truly novel) (citing Wright v. West, 505 U.S. 277, 305 (1992) (Kennedy, J.,
concurring in judgment)). In the terminology of Teague itself, Padilla did not ―break
new ground‖ or ―impose a new obligation on the States or the Federal Government,‖ and
was ―dictated by precedent existing at the time the defendant‘s conviction became final.‖
489 U.S. at 301.

        Many of the courts holding that Padilla does not apply retroactively rely heavily
upon the Padilla concurrence by Justice Alito and the dissent by Justice Scalia for their
interpretations of the Padilla majority. See, e.g., Chaidez, 655 F.3d at 689 (―That the
members of the Padilla Court expressed such an ‗array of views‘ indicates that Padilla
was not dictated by precedent.‖); Hong, 671 F.3d at 1154-56 (―We take the concurrence
and dissent as support for our conclusion that reasonable jurists did not find the rule in
Padilla compelled or dictated by the Court‘s prior precedent.‖). Justice Alito described
the majority as engaging in a ―dramatic departure from precedent,‖ and Justice Scalia

        5
          The Padilla majority further downplayed the nature of the rule it was announcing by pointing
out that for at least 15 years preceding the opinion, professional norms had imposed an obligation on
counsel to provide advice regarding the deportation consequences of a guilty plea. 130 S. Ct. at 1483-85
(citing numerous practice guides). Additionally, the majority appeared to anticipate its rule being applied
retroactively in habeas corpus proceedings when it analyzed the infrequent use of collateral proceedings
to challenge guilty pleas under Strickland. Padilla, 130 S. Ct. at 1485-86.

                                                    7
likewise decried the majority‘s extension of rights under the Sixth Amendment. Padilla,
130 S. Ct. at 1491 (Alito, J., concurring in judgment); id. at 1494-95 (Scalia, J.,
dissenting).

       However, in light of the majority‘s assurance that its decision was dictated by
prior precedent—McMann, Strickland, St. Cyr, etc.—it seems the wiser course is to
interpret the majority opinion as the majority has instructed. For this and the other
reasons stated above, we join those courts that have applied Padilla retroactively.

                                Deficiency of Performance

       To satisfy the first prong of Strickland, a defendant, or habeas corpus applicant,
must show that counsel‘s performance was deficient, i.e., fell below an objective standard
of reasonableness. 466 U.S. at 687-88. Both appellant and his former counsel stated in
their affidavits that counsel told appellant that a guilty plea to the cocaine possession
charge could result in deportation and failed to inform him that the plea would make
deportation presumptively mandatory.

       In its brief, the State argues that appellant‘s deportation was, in fact, not
presumptively mandatory, and therefore, counsel did not provide deficient advice to
appellant. The federal immigration statutory provision at issue in this case, 8 U.S.C. §
1227(a)(2)(B)(i), is the exact same provision that the Supreme Court described as
―presumptively mandatory‖ in Padilla. 130 S. Ct. at 1483. That statute provides as
follows: ―Any alien who at any time after admission has been convicted of a violation of .
. . any law or regulation of a State, the United States or a foreign country relating to a
controlled substance . . . is deportable. ‖ 8 U.S.C. § 1227(a)(2)(B)(i). The Supreme Court
further described the provision as ―succinct, clear, and explicit in defining the removal
consequence for Padilla‘s conviction.‖ Padilla, 130 S.Ct. at 1483. In light of this clarity,
the Court ―agree[d] with Padilla that constitutionally competent counsel would have
advised him that his conviction for drug distribution made him subject to automatic
deportation.‖ Id. at 1478. The Court further explained that when the law is not so clear,
―a criminal defense attorney need do no more than advise a noncitizen client that pending
                                             8
criminal charges may carry a risk of adverse immigration consequences. But when the
deportation consequence is truly clear, as it was in this case, the duty to give correct
advice is equally clear.‖ Id. at 1483.

       Thus, under Padilla, ―[a] criminal defendant who faces almost certain deportation
is entitled to know more than that it is possible that a guilty plea could lead to removal;
he is entitled to know that it is a virtual certainty.‖ United States v. Bonilla, 637 F.3d
980, 984 (9th Cir. 2011) (emphasis in original); Tanklevskaya, 361 S.W.3d at 96. Here,
counsel undisputedly only mentioned the possibility of deportation to appellant, despite
the presumptively mandatory nature of the applicable immigration provision.
Consequently, Padilla mandates that counsel‘s performance be deemed deficient.

       The State argues that the effect of the statutory provision is not as clear as the
Supreme Court indicated, due to the discretion afforded to immigration officials to
selectively prosecute deportation cases.          Specifically, the State cites an internal
memorandum issued by the Director of Immigration and Custom Enforcement,
discussing various factors applicable ―to a broad range of discretionary enforcement
decisions,‖ as well as several cases discussing prosecutorial discretion in immigration
matters. See Cardoso v. Reno, 216 F.3d 512, 517 (5th Cir. 2000); Alvidres-Reyes v.
Reno, 180 F.3d 199, 201 (5th Cir. 1999); State v. Golding, No. 01-10-00685-CR, 2011
WL 1835274, at *5 (Tex. App.—Houston [1st Dist;] May 12, 2011), rehearing granted,
opinion withdrawn, 2011 WL 2732579, at *1 (Tex. App.—Houston [1st Dist.] July 14,
2011, pet. ref‘d); Memorandum from John Morton, Director, U.S. Immigration and
Customs Enforcement, to All Field Office Directors, All Special Agents in Charge, All
Chief Counsel (June 17, 2011) (―Subject: Exercising Prosecutorial Discretion Consistent
with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension,
Detention, and Removal of Aliens‖).6

       None    of   these   documents,     however,     contradict   the   Supreme    Court‘s

       6
              The     memorandum       can     be      viewed     on     the     internet   at:
http://www.jdsupra.com/post/documentViewer.aspx?fid=f36c5a91-4913-4f5a-92e1-3ab7ba72db4a.

                                              9
pronouncements in Padilla. The memorandum in particular does not even mention the
provision at issue in Padilla and in the present case: 8 U.S.C. § 1227(a)(2)(B)(i).
Moreover, as both the memorandum and the cited cases indicate, the concept of
prosecutorial discretion in immigration matters is nothing new. See, e.g., Alvidres-Reyes,
180 F.3d at 201 (describing the United States Attorney General as having ―long-
established discretion to decide whether and when to prosecute . . . removal
proceedings‖). The memorandum lists and references multiple prior memoranda on the
same topic, several of which preceded Padilla by as much as 34 years. Several of the
cited cases likewise preceded Padilla. See Cardoso, 216 F.3d 512; Alvidres-Reyes, 180
F.3d 199. Moreover, the Padilla majority explicitly considered the role of prosecutorial
discretion in its analysis. 130 S.Ct. at 1480. Consequently, the existence of prosecutorial
discretion in immigration cases does not persuade us to reject the Supreme Court‘s
holdings in Padilla. We remain bound by the Supreme Court‘s precedent in this matter.

                                              Prejudice

        Deficient performance alone, however, does not demonstrate ineffective assistance
of counsel under Strickland.          The defendant or habeas corpus applicant also must
demonstrate prejudice by showing a reasonable probability that, but for counsel‘s
unprofessional errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 687-88, 694.          Specifically in the guilty plea context, the defendant or
applicant ―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.‖ Hill, 474
U.S. at 59. The Padilla court further emphasized that ―to obtain relief . . . a petitioner
must convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.‖ 130 S. Ct. at 1485.7 Furthermore, a court should
consider the gravity of the deficient performance as well as the circumstances
surrounding the guilty plea in determining whether advice the defendant received or
        7
          The Padilla court, however, did not otherwise provide guidance on application of the prejudice
prong in these types of cases as that particular issue had not been ruled upon by the lower courts in
Padilla; instead, the Court remanded for further proceedings. 130 S. Ct. at 1487.

                                                  10
failed to receive impacted the decision. See Ex parte Moody, 991 S.W.3d 856, 858 (Tex.
Crim. App. 1999) (holding applicant established prejudice based on applicant‘s own
testimony and that of his plea counsel). Compare Tanklevskaya, 361 S.W.3d at 97
(holding applicant‘s testimony was alone sufficient to establish prejudice), with Jackson
v. State, 139 S.W.3d 7, 21 n.10 (Tex. App.—Fort Worth 2004, pet. ref‘d) (stating in dicta
that affidavit alone was insufficient to demonstrate prejudice).

        Here, the record is only marginally developed regarding the alleged prejudice.
Appellant stated in his affidavit that if his counsel had told him his guilty plea would
make deportation presumptively likely, he would not have pleaded guilty and would have
instead insisted on going to trial. He said that residence in the United States was very
important to him and was the most important thing to him in respect to the underlying
case. Appellant did not provide live testimony or any specific evidence regarding the
rationality of rejecting a plea bargain under the circumstances (apparently relying solely
on his stance that he would have rejected the plea because residence was of paramount
importance to him).          The State did not provide any rebuttal evidence regarding
prejudice.8

        We further note that, in making her ruling, the trial judge did not need to consider
the prejudice prong; thus, she cannot be said to have accepted or rejected appellant‘s
affidavit statements. See generally Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex.
Crim. App. 2006) (explaining that an appellate court in a habeas corpus appeal must defer
to a trial court‘s factual findings even when based on affidavits). At the conclusion of the
habeas corpus hearing, the judge stated that ―the existing professional norms were, in
        8
           Neither party in this case presented any evidence or made any representation in the trial court
regarding whether appellant was subject to any pending immigration proceedings. In the vast majority of
Padilla-related habeas corpus cases reported thus far, the applicant was the subject of ongoing deportation
or other immigration proceedings. Here, the record is silent on this issue. Courts in New York have held
that in the absence of ongoing proceedings, a defendant could not establish prejudice due to deficient plea
advice. See People v. Floyd F., No. 94K053487, 2012 WL 1414943 at *9-10 (N.Y. Crim. Ct. Apr. 13,
2012) (discussing cases). However, since the relevant inquiry is not whether a defendant has suffered
adverse consequences but whether he or she would not have pleaded guilty, it would not appear that the
existence of ongoing adverse proceedings is a necessary component for an ineffective assistance claim in
the Padilla context. See Hill, 474 U.S. at 59.

                                                    11
fact, met by Mr. Medlin in advising [appellant] that a plea of guilty or no contest may
result in . . . deportation . . . . So I‘m denying your writ.‖

       The ―sole purpose‖ of a habeas corpus appeal ―is to do substantial justice to the
parties.‖ Tex. R. App. P. 31.2. Additionally, we are authorized to remand a case if
further proceedings are necessary or in the interests of justice. Tex. R. App. P. 43.3.
Because (1) this is a developing area of law, (2) the record is only marginally developed
regarding the prejudice prong of Strickland, and (3) the trial court clearly did not rule on
the prejudice prong, we sustain appellant‘s sole issue and remand this case for a
determination by the trial court on the prejudice prong of Strickland. See Padilla, 130 S.
Ct. at 1487 (remanding for lower court‘s consideration of prejudice prong).




                                             /s/    Martha Hill Jamison
                                                    Justice

Panel consists of Justices Frost, Seymore, and Jamison (Frost, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).




                                               12
