                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00366-CR
                             _________________

                      EX PARTE JULIAN HERNANDEZ

________________________________________________________________________

             On Appeal from the County Court at Law No. 3
                        Jefferson County, Texas
                        Trial Cause No. 285449
__________________________________________________________________

                                    OPINION

      This is an appeal from a denial of a writ of habeas corpus proceeding that

questioned the advice the defendant was given by his attorney concerning the

consequence of pleading guilty on the defendant’s status as a legal immigrant. In

this appeal, we consider whether further proceedings are required to allow the

parties to present testimony for the trial court to consider before it determines if

Julian Hernandez received ineffective assistance of counsel and, if so, whether he

was prejudiced by his attorney’s advice. We conclude the trial court erred by




                                         1
considering only the record of the guilty plea hearing in deciding the disputed

issues; as a result, further proceedings are required.

      In July 2012, Hernandez filed an application for writ of habeas corpus

claiming that his attorney failed to advise him that pleading guilty to possessing

alprazolam would result in his removal from the country. See 8 U.S.C.A. §

1101(a)(48) (West 2005) (defining the term “conviction” for immigration purposes

to include cases where the adjudication and the sentence is not imposed).

Hernandez argues that had he been provided with accurate information about the

immigration consequences of pleading guilty, he would not have pled guilty to

possessing alprazolam. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176

L.Ed.2d 284 (2010).

      In his application for the writ, Hernandez sought to establish that his plea

counsel failed to properly advise him of the consequences of his guilty plea,

making his plea involuntary, and that he was prejudiced by his attorney’s incorrect

advice. See Tex. Code Crim. Proc. Ann. art. 11.072 § 1 (West 2005) (establishing

procedures for an application for a writ of habeas corpus for cases that concern

orders imposing community supervision). According to the application,

Hernandez’s plea counsel advised him that a guilty plea to the offense at issue

might result in his deportation, but did not advise him that pleading guilty would

                                           2
“result in certain deportation[.]” Hernandez further alleged that “if he had been so

advised by either his lawyer or [the trial] court, he would not have pled guilty but

tendered defenses for the crime.” Hernandez verified the statements in his

application under oath.

      The record reflects that Hernandez has been living in the United States since

1991, and in 2007, he became a lawful permanent resident. 1 In 2010, the State

charged Hernandez with possessing alprazolam, a Class A misdemeanor. See Tex.

Health & Safety Code Ann. §§ 481.104, 481.117(b) (West 2010). The record also

shows Hernandez was admonished, in writing, that a plea of guilty “may result in

your deportation, exclusion from admission to the country or denial of

naturalization under federal law.” See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4)

(West Supp. 2012) (providing that prior to accepting a plea of guilty or nolo

contendere the court shall admonish the defendant of the “fact that if the defendant

is not a citizen of the United States of America, a 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”). Hernandez chose

to plead guilty to possession; however, the trial court did not pronounce a sentence.
      1
       “The term ‘lawfully admitted for permanent residence’ means the status of
having been lawfully accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws, such status not
having changed.” 8 U.S.C.A. § 1101(a)(20) (West 2005).
                                         3
Instead, the trial court deferred the adjudication of Hernandez’s guilt and placed

him on community supervision for one year. After completing the conditions that

were required of him by the community supervision order, the trial court

discharged Hernandez and dismissed the case.

      Subsequently, Hernandez was arrested for an immigration violation—based

on his guilty plea to the previously discussed drug crime—and is being held by a

federal law enforcement agency, the United States Immigration and Customs

Enforcement. The record from the habeas proceeding reflects that the United States

is seeking to remove Hernandez from the United States because he was “convicted

in the County Court of Jefferson County . . . for the offense of Possession of a

Controlled Substance[.]” See 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 2005 & Supp.

2010) (providing that “[a]ny 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, . . . other than a single

offense involving possession for one’s own use of 30 grams or less of marijuana, is

deportable”); see Padilla, 130 S.Ct. at 1477 n.1 (“[V]irtually every drug offense[,]

except for only the most insignificant marijuana offenses, is a deportable offense

under 8 U.S.C.[A.] § 1227(a)(2)(B)(i).”).




                                            4
      Although the collateral consequences of Hernandez’s guilty plea arose

because federal law treats a deferred adjudication on a case as a conviction, that

restraint may be addressed in a habeas proceeding. See Ex parte Hargett, 819

S.W.2d 866, 867 (Tex. Crim. App. 1991), superseded by statute, Tex. Code Crim.

Proc. Ann. art. 11.072 (West 2005) (involving a habeas proceeding that challenged

validity of applicant’s guilty plea based on a claim of ineffective assistance

because the plea affected the applicant’s military retirement benefits). Hernandez

challenged the restraint created by his guilty plea through a writ of habeas corpus,

which “is the remedy to be used when any person is restrained in his liberty.” Tex.

Code Crim. Proc. Ann. art. 11.01 (West 2005). The writ of habeas corpus “is an

order issued by a court or judge of competent jurisdiction, directed to any one

having a person in his custody, or under his restraint, commanding him to produce

such person, at a time and place named in the writ, and show why he is held in

custody or under restraint.” Id. Under Chapter 11 of the Code of Criminal

Procedure, which governs writs of habeas corpus, a “restraint” is “the kind of

control which one person exercises over another, not to confine him within certain

limits, but to subject him to the general authority and power of the person claiming

such right.” Id. art. 11.22 (West 2005). Also, under Chapter 11, a writ of habeas

corpus is the appropriate vehicle to challenge “all such cases of confinement and

                                         5
restraint[.]” Id. art. 11.23 (West 2005). We conclude that Hernandez may challenge

the restraint at issue by filing a writ of habeas corpus.

      The trial court’s decision to dismiss the drug possession case after

Hernandez successfully completed the requirements of his deferred adjudication

did not render Hernandez’s application moot. See Tatum v. State, 846 S.W.2d 324,

327 (Tex. Crim. App. 1993) (“A judgment of conviction for a misdemeanor

offense may have detrimental collateral consequences whether or not probation is

completed without a hitch or jail time is actually served.”); Ex parte Ormsby, 676

S.W.2d 130, 131 (Tex. Crim. App. 1984) (stating that “mootness cannot prohibit a

collateral attack [by habeas] if prior discharged convictions may have collateral

consequences to a criminal defendant”). Thus, if Hernandez’s plea was not

voluntary, as he contends, and if he succeeds in proving he suffered prejudice

because he received ineffective assistance of counsel, the trial court has the power

to remove the restraint at issue. See Tatum, 846 S.W.2d at 327 (suggesting that a

misdemeanor judgment could be void and collaterally attacked, whether or not a

term of probation was successfully served out); Ormsby, 676 S.W.2d at 132

(removing restraint created by invalid conviction by ordering the habeas applicant

“released from every manner of restraint in his personal liberty as a consequence of

that conviction”). In cases that involve deferred adjudications, as is the case here,

                                           6
the restraint can be removed by a trial court issuing an order vacating the

applicant’s plea. See Ex parte Sudhakar, No. 14-11-00701-CR, 2012 Tex. App.

LEXIS 10068, at **2-4, 16-17 (Tex. App.—Houston [14th Dist.] Dec. 6, 2012, no

pet.) (mem. op., not designated for publication) (vacating plea in a misdemeanor

drug case because of ineffective assistance resulting in involuntary plea where

counsel failed to properly advise applicant regarding the immigration

consequences of the plea).

      In this case, the trial court entered an order stating that the attorney who

represented Hernandez when he pled guilty “rendered all necessary paperwork in

the hearing[,]” and denied Hernandez’s application on its merits. The trial court did

not dismiss the application as frivolous. See Tex. Code Crim. Proc. Ann. art 11.072

§ 7(a) (West 2005) (allowing the trial court to enter an order denying the

application as frivolous or to enter a written order including findings of fact and

conclusions of law). To evaluate the application’s merits, the trial court conducted

a hearing. See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008)

(noting that “a hearing held to determine whether a writ should issue or whether

the merits of claims should be addressed is not the same as one that is held to

resolve the merits of an applicant’s allegations”) (citing Ex parte Hargett, 819

S.W.2d at 868). It is apparent from the hearing the trial court conducted that the

                                         7
trial court did not believe it needed to consider anything other than the written

record from the proceedings that resulted in Hernandez’s guilty plea. During the

hearing on Hernandez’s request for habeas relief, Hernandez’s habeas counsel

indicated that before the hearing, he inquired about having a bench warrant issued

to secure Hernandez’s presence, but his request was not honored; then, habeas

counsel advised the court that he could get Hernandez to the hearing. At that point,

the trial court responded: “No. I have reviewed your writ.” Thus, it appears the trial

court did not believe it should consider Hernandez’s testimony about why he had

chosen to plead guilty, or any testimony relevant to proving how Hernandez had

suffered prejudice by following his attorney’s advice.

      It also appears the trial court felt the testimony of the attorney who

represented Hernandez when he pled guilty was unnecessary. The record of the

habeas proceeding reflects that habeas counsel advised the trial court that

Hernandez’s plea counsel told Hernandez before he pled guilty that his guilty plea

may result in his deportation. When habeas counsel asked to present evidence on

the issue of prejudice by affidavit, the trial court stated: “I will stipulate to the

written documents that you have cited. They speak for themselves.” This exchange

reinforces our conclusion that the trial court thought that the issues in dispute could

be resolved by examining the existing record, and that testimony was unnecessary.

                                          8
For example, during the habeas hearing, the trial court stated that it was not

interested in hearing testimony, stating that “any decision I make would be

exclusively on the documentation.” Despite habeas counsel’s offers to develop the

record, the record before us reflects that no witnesses testified during the habeas

hearing. After denying Hernandez an evidentiary hearing, the trial court denied

Hernandez’s request for relief.

      Shortly after the habeas hearing, and before the trial court entered an order

denying the writ on the merits, habeas counsel filed an offer of proof. The offer of

proof reflects that habeas counsel requested but was denied a bench warrant that

was intended to require Hernandez to appear at the habeas hearing. The offer of

proof reiterates that Hernandez’s plea counsel failed to advise Hernandez that

choosing to plead guilty made his deportation certain. The offer of proof also

asserts that Hernandez would not have pled guilty had he known he would be

deported. On the afternoon after the offer of proof was filed, the trial court issued

an order denying Hernandez’s writ.

      After Hernandez appealed, we abated the appeal and asked the trial court to

enter findings of fact and conclusions of law. See Tex. R. App. P. 31.3.

Subsequently, the trial court found that it had not “wrongfully exclude[d] evidence

or testimony[]” and that Hernandez had the burden of proof. Then, the trial court

                                         9
concluded that Hernandez “failed to [sustain] his burden of proof[.]” Although the

findings made clear that the trial court decided the writ on the merits, it is not clear

whether the trial court found that Hernandez failed to prove that he received

inaccurate legal advice regarding the consequences of the plea to his status as an

immigrant, or that he failed to prove he was prejudiced by his attorney’s inaccurate

advice, or both. Nevertheless, our disposition of Hernandez’s appeal does not

depend on whether the trial court ruled against Hernandez on one or both of these

issues.

      Generally, a trial court’s decision on an application for writ of habeas corpus

is reviewed for abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App. 2006). With respect to an evidentiary ruling, the evidence introduced in

a hearing is reviewed in the light most favorable to the trial court’s ruling. Id. The

two-pronged Strickland v. Washington test applies to challenges to guilty pleas

based on ineffective assistance of counsel for failing to provide accurate

information about the immigration consequences of a plea. Padilla, 130 S.Ct. at

1482-84 (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984)). To obtain habeas relief on the ground of ineffective

assistance, a defendant must show that his counsel’s representation fell below the

standard of prevailing professional norms; he must also show that but for counsel’s

                                          10
deficiency, the result of the trial would have been different. See Strickland, 466

U.S. at 687.

          To prove a guilty plea was involuntary because of ineffective assistance, a

defendant must show (1) counsel’s plea advice did not fall within the range of

competence demanded of attorneys in criminal cases; and (2) there is a reasonable

probability that, but for counsel’s deficient performance, defendant would have

insisted on going to trial rather than accepting the offer and pleading guilty. Hill v.

Lockhart, 474 U.S. 52, 56, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte

Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). If plea counsel fails to

advise a noncitizen defendant about deportation consequences that are “truly

clear,” plea counsel’s performance is deficient. See Padilla, 130 S.Ct. at 1483;

Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App.—Houston [14th Dist.] 2012, pet.

filed).

          In this case, the trial court apparently did not believe that any testimony was

necessary to decide the issues raised by Hernandez’s writ, as it refused counsel’s

offer to provide testimony to prove the allegations that led to the filing of the writ.

After limiting the evidence that it would consider, the trial court denied the writ on

the merits, basing its decision on a failure of proof. In our opinion, the issues raised

by Hernandez in his application allowed the parties to develop the record beyond

                                             11
the written record of the prior plea proceedings, and a further development of the

record is required so the trial court may make an informed decision on the issues in

dispute. The trial court, under the circumstances, had several options to allow

Hernandez’s testimony to be placed in evidence before deciding how to rule on the

writ: it could have conducted an evidentiary hearing and allowed Hernandez and

others the opportunity to testify; or, if Hernandez’s actual appearance was

impractical because he is being detained by federal authorities, the trial court could

have allowed the parties to take Hernandez’s deposition and present it during the

hearing; or, the trial court could have allowed Hernandez to present his sworn

testimony by teleconference. Instead, the trial court failed to provide habeas

counsel with an adequate opportunity to develop the record with evidence relevant

to the issues in dispute.

      Under Rule 31.2, the “sole purpose of the appeal [of a habeas matter] is to

do substantial justice to the parties.” Tex. R. App. P. 31.2. Rule 31 expressly

applies to article 11.072 writs of habeas corpus. See Tex. Code Crim. Proc. Ann.

art. 11.072 § 8 (West 2005). Rule 31.3 goes on to provide that “[t]he appellate

court will render whatever judgment and make whatever orders the law and the

nature of the case require.” Tex. R. App. P. 31.3. When a habeas record requires

factual development, the Code of Criminal Procedure empowers the trial court to

                                         12
“order affidavits, depositions, interrogatories, or a hearing, and [the court] may rely

on the court’s personal recollection.” Tex. Code Crim. Proc. Ann. art 11.072 § 6(b)

(West 2005).

      An appellate court may remand a habeas proceeding to the trial court for

further proceedings if the factual record has not been sufficiently developed. See

Ex parte Cherry, 232 S.W.3d 305, 308 (Tex. App.—Beaumont 2007, pet. ref’d).

Additionally, an appellate court may remand where, as here, the record is not

sufficiently developed regarding alleged prejudice. See Aguilar, 375 S.W.3d at 526

(remanding a habeas proceeding for development of record regarding alleged

prejudice).

      We conclude the trial court erred by announcing that it would not consider

anything but the record of the prior proceedings and then ruling on the

application’s merits. We hold the trial court improperly restricted the evidence to

the prior plea proceedings in face of habeas counsel’s efforts to offer other clearly

relevant evidence. Because the trial court unduly restricted the development of the

record, the trial court should be required to conduct further proceedings to allow

Hernandez and the State to develop relevant evidence addressing the issues in

dispute. See Ex parte Sudhakar, 2012 Tex. App. LEXIS 10068, at **16-17 (mem.

op., not designated for publication). Accordingly, we reverse the trial court’s order

                                          13
denying the writ and remand the case for further proceedings consistent with this

opinion.

      REVERSED AND REMANDED.




                                            ___________________________
                                                   HOLLIS HORTON
                                                        Justice

Submitted on November 1, 2012
Opinion Delivered March 27, 2013
Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.




                                       14
                            DISSENTING OPINION

      I respectfully dissent. When the law is not succinct and straightforward, a

defense attorney need only advise a noncitizen client that pending criminal charges

may carry a risk of deportation. Padilla v. Kentucky, 130 S.Ct. 1473, 1483, 2010

U.S. LEXIS 2928, 176 L.Ed.2d 284 (2010). If a deportation consequence is truly

clear, such as when the client is subject to automatic deportation, the duty to give

correct advice is equally clear, and constitutionally competent counsel must advise

the client accordingly. Id. at 1478, 1483. The defendant must prove, by a

preponderance of the evidence, that there is a reasonable probability that, but for

counsel’s advice, he would not have pleaded guilty and would have insisted on

going to trial. Ex parte Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012, pet.

ref’d). Further, the defendant must show that a decision to reject the plea bargain

would have been rational under the circumstances. Padilla, 130 S.Ct. at 1485.

      In its findings of fact, the trial court stated that: (1) pursuant to a plea

bargain agreement, Hernandez pleaded guilty to misdemeanor possession of a

controlled substance; (2) Hernandez was placed on deferred adjudication

community supervision for one year; (3) after his discharge from community

supervision, Hernandez filed his application for writ of habeas corpus; (4) in his

application, Hernandez alleged that he was not properly advised regarding

                                        15
deportation; (5) a habeas corpus hearing took place; (6) the trial court did not

wrongfully exclude evidence or testimony; and (7) the applicant in a habeas corpus

proceeding bears the burden of proof. In its sole conclusion of law, the trial court

held that Hernandez failed to sustain his burden of proof; thus, all relief sought

should be denied.

      The record contains signed misdemeanor plea admonishments, which

included the following: “If you are not a U.S citizen, a plea of guilty or nolo

contendere may result in your deportation; exclusion from admission to the country

or denial of naturalization under federal law.” The applicable federal law provides,

in pertinent part, that any alien in and admitted to the United States shall be

removed if the alien has been convicted of a violation of any state law or regulation

relating to a controlled substance. 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 2005 &

Supp. 2010); see Padilla, 130 S.Ct. at 1477 n.1 (“[V]irtually every drug offense[,]

except for only the most insignificant marijuana offenses, is a deportable offense

under 8 U.S.C.A. § 1227(a)(2)(B)(i).”); see also 8 U.S.C.A. § 1101 (a)(48) (West

2005) (Defining the term “conviction”). In some cases, removal may be cancelled,

but the record does not indicate that Hernandez qualified for cancellation. See 8

U.S.C.A. § 1229b(a) (West 2005). Under these circumstances, I agree that the

general admonishment that Hernandez “may” be subject to deportation was

                                         16
insufficient to inform Hernandez that his guilty plea to possession of a controlled

substance subjected him to presumptively automatic deportation. See Padilla, 130

S.Ct. at 1478, 1483; see also Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App.—

Houston [14th Dist.] 2012, no pet.).

      Citing Aguilar, Hernandez contends that trial counsel’s deficiency entitles

him to either habeas relief or remand for an evidentiary hearing. In Aguilar, the

defendant submitted an affidavit stating that counsel told him that his guilty plea

could result in deportation, but failed to inform him that the plea would make

deportation presumptively mandatory. Aguilar, 375 S.W.3d at 520. Aguilar averred

that, had counsel advised him that his guilty plea would make deportation

presumptively mandatory, he would not have pleaded guilty and would have

insisted on a trial. Id. He explained that residence in the United States was the most

important thing to him with respect to the underlying case. Id. Aguilar also

provided trial counsel’s affidavit, in which counsel stated that he did not advise

Aguilar whether a guilty plea would have immigration consequences. Id. After

finding counsel’s performance deficient, the Fourteenth Court of Appeals found

the record only marginally developed and remanded the case for an evidentiary

hearing to determine prejudice. Id. at 526.




                                         17
      In her dissent, Justice Frost stated that Aguilar should not receive a second

chance to prove entitlement to habeas relief. Id. at 527 (Frost, J., dissenting). She

noted the minimal amount of evidence before the trial court, as well as Aguilar’s

failure to present evidence of a plausible defense or evidence that rejecting the

proffered plea bargain would have been rational. Id. at 528-29. She explained that

Texas Rule of Appellate Procedure 43.3, which allows remand in the interests of

justice, does not allow appellate courts to reverse “an error-free judgment in the

interests of justice or for further proceedings on remand.” Id. at 529-30. Nor did

she believe that an error-free judgment may be reversed simply because the case

involves a developing area of the law. Id. at 530. Justice Frost explained that

Padilla does not support the proposition that an intermediate appellate court can

reverse an error-free judgment denying habeas relief and remand to give the

applicant a second chance to prove entitlement to relief. Id. Justice Frost

maintained that the trial court did not abuse its discretion by impliedly finding

Aguilar failed to prove that a decision to reject the plea bargain would have been

rational. Id. at 528-30. Justice Frost concluded that the trial court’s judgment

should have been affirmed. Id. at 530.

      Aguilar is not controlling authority in this Court. See Cannon v. State, 691

S.W.2d 664, 679-80 (Tex. Crim. App. 1985). Moreover, I find Justice Frost’s

                                         18
reasoning to be more persuasive. This Court has held that the trial court may be

capable of resolving the merits of the defendant’s claim without the necessity of

conducting an evidentiary hearing. Ex parte Alfaro, 378 S.W.3d 677, 679-81 (Tex.

App.—Beaumont 2012, no pet.).

      In this case, the record contains the arresting officer’s affidavit, in which the

officer described observing a vehicle, being driven by a Hispanic male, swerving

on the roadway. The driver was later identified as Hernandez. When preparing to

initiate a traffic stop for failure to maintain a single lane, the officer observed two

clear plastic bags fly out of the driver’s side window. The officer activated the

patrol car’s overhead lights and, when the vehicle stopped, the officer saw three

male Hispanic occupants. The officer arrested Hernandez for littering. Another

officer retrieved the plastic bags, one of which contained a green leafy substance

and the other of which contained pills. The officers searched the vehicle and found

more pills in a container. The green substance tested positive for marijuana and the

pills were identified as alprazolam. The State charged Hernandez with possession

of a controlled substance, alprazolam. Hernandez presented no evidence, in his

application for writ of habeas corpus or at the hearing, to establish the existence of

a plausible defense to the charges against him or to establish that a decision to




                                          19
reject the plea bargain would have been rational. 2 He did not object at the hearing

to proceeding without testimony. Had Hernandez rejected the plea bargain,

proceeded to trial, and been convicted, he would have faced both confinement and

the risk of automatic deportation.

      Under these circumstances, the trial court could reasonably conclude,

without an evidentiary hearing, that Hernandez failed to sustain his burden of

proving, by a preponderance of the evidence, that there is a reasonable probability

that, but for his counsel’s advice, he would not have pleaded guilty and would have

insisted on going to trial. See Padilla, 130 S.Ct. at 1485; see also Ali, 368 S.W.3d

at 835. Viewing the facts in the light most favorable to the trial court’s ruling, I

cannot agree that the trial court abused its discretion by denying Hernandez’s

application for habeas corpus. See Ex parte Klem, 269 S.W.3d 711, 718 (Tex. App.

—Beaumont 2008, pet. ref’d). I would overrule Hernandez’s sole issue and affirm

the trial court’s judgment.




      2
        After the hearing and the trial court’s denial of his application, Hernandez
filed an offer of proof to show what he would have testified to had the trial court
issued a bench warrant and to show what his trial counsel would have testified to at
the hearing. We review the record as it existed before the trial court at the time of
the hearing. Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San Antonio
2011, no pet.). Thus, we do not consider evidence filed after the trial court ruled on
Hernandez’s application.
                                         20
                         ______________________________
                                STEVE McKEITHEN
                                   Chief Justice

Dissent Delivered
March 27, 2013




                    21
