                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                          §
                                                                             No. 08-12-00261-CR
                                                          §
                                                                                Appeal from the
                                                          §
    EX PARTE: JUAN CARLOS REYES                                           County Court at Law No. 7
                                                          §
                                                                                of El Paso, Texas
                                                          §
                                                                         (TC# 20050C17647-CC7-1)
                                                          §

                                                  OPINION

         The State of Texas appeals the trial court’s order granting Juan Carlos Reyes’s application

for writ of habeas corpus. In three issues, the State contends the trial court abused its discretion in

granting habeas relief based on ineffective assistance of counsel.                      We reverse and render

judgment reinstating Reyes’s guilty plea.

                         FACTUAL AND PROCEDURAL BACKGROUND

         Reyes is not a United States citizen.1 In 2006, he pled guilty to the misdemeanor offense

of family violence against his then-wife, Hilda Maldonado.                          Reyes was convicted and

subsequently taken into custody by immigration officials. While in custody, Reyes filed an


1
  It is unclear from the record what Reyes’s immigration status is. Reyes alleged in his application for writ of habeas
corpus that he was not a permanent resident but had legal authorization to remain in the United States. However, in
his affidavit in support of his application, Reyes averred he had been a lawful permanent resident since 2001.
Reyes’s mother testified at one of the hearings on the application that Reyes had been a permanent resident since 2001.
application for writ of habeas corpus seeking to vacate and set aside his conviction on several

grounds. Reyes asserted his trial counsel was ineffective for failing to: (1) inform him that his

plea would lead to removal; (2) conduct an independent investigation; and (3) advise him on the

law of self-defense. Reyes also asserted that his plea was not knowingly and intelligently made

and that he was actually innocent. In support of his application, Reyes submitted his affidavit, an

affidavit from his cousin, and statements from two of his sons.2 In his affidavit, Reyes averred to

the facts alleged in his application, including the allegation that he would not have accepted the

guilty plea if he had known he would be subject to removal from the United States and would have

opted for a trial and risked jail time as an alternative to removal.

           The trial court held a hearing on the application.3 The trial court heard the testimony of

several character witnesses, each of whom testified Reyes was honest and peaceful. The trial

court also heard the testimony of three witnesses who were present during the altercation between

Reyes and Maldonado.               All three testified that Reyes and Maldonado were arguing, that

Maldonado was the aggressor, and that Reyes did not strike Maldonado. Two further testified

that Maldonado invited Reyes to strike her, and one of them added that Maldonado slapped and

scratched Reyes.

           After taking the matter under advisement, the trial court granted Reyes’s application. In

its order, the trial court stated it was granting relief “[o]n the basis of [its] findings of fact and

conclusions of law and the constitutional grounds identified therein[.]” Among the trial court’s

fourteen findings of fact, three are germane to the issue now before us. They declare:

           12. The Defendant now claims that his trial counsel did not advise him of

2
    The trial court permitted Reyes to supplement the record with his affidavit.
3
    The hearing was continued twice.
                                                            2
       immigration consequences and did not advise him that his plea would subject him
       to removal from the United States . . . .

       13. The Defendant did sign plea papers which contain standard ‘boiler plate’
       language which states:

               I further understand that in the event I am not a citizen of the U.S.A.,
               my plea of guilty may result in deportation, exclusion from
               admission to the U.S.A. or denial of naturalization under federal
               law.

       14. Neither the Defendant nor the State called the Defendant’s trial counsel to
       testify. No affidavit from her was presented. No transcript of anything stated at
       the time of the guilty plea was submitted. The Court takes judicial notice of the
       normal practice in El Paso County to not make a record of misdemeanor pleas.

Of the trial court’s seven conclusions of law, six are pertinent. They read as follows:

       1. The Supreme Court decision of Padilla v. Kentucky, [559 U.S. 356,] 130 S.Ct.
       1473[,176 L.Ed.2d 284] (2010) eliminates all ambiguity and holds that a Defendant
       must be given a full and complete explanation of immigration consequences in
       order for a plea to be voluntarily entered.

       2. Texas Courts apply Padilla retroactively. Ex Parte De Los Reyes, 350 S.W.3rd
       723 (Tx. App. – El Paso 2011); Ex Parte Tanklesvskaya[,] 361 S.W.3rd 86 (Tx.
       App. – Houston 2012); Aguilar v. State, ___ S.W.3rd ___, (Tex. App. 14th District)
       (July 10, 2012.)[.]

       3. Merely stating that a guilty plea ‘may’ have immigration consequences does
       not meet the Padilla requirements. Unless the law is ambiguous, a Defendant must
       be definitely advised of deportation or removal consequences. Aguilar v. State,
       supra.

       4. The only evidence before the Court concerning the admonition of potential
       immigration consequences is the boiler plate sentence in the plea papers, and the
       Defendant’s written sworn testimony.

       5. Under Padilla, as now applied retroactively, the Defendant was not sufficiently
       admonished about immigration consequences.

       6. The Defendant was prejudiced because he would not have plead guilty had he
       known of the deportation/removal consequences and because he has plausible
       defenses to the underlying charge which, if believed by a jury, could result in an
       acquittal.

                                                  3
       On appeal, the State moved to abate and remand the case to the trial court for supplemental

findings of fact and conclusions of law. We granted the State’s motion, and the trial court

complied. Of the trial court’s four supplemental findings, two are relevant. They decry:

              The Court makes the finding that . . . Reyes was not advised that a guilty
       plea would subject him to deportation. This Finding is based upon the affidavit
       which the Court finds to be completely credible on this issue.

                                 .                .               .

              The Court further finds that the Defendant would absolutely positively
       NOT have plead guilty if he had been advised that doing so would lead to
       deportation.

In its one supplemental conclusion of law, the trial court retreated from one of its original

conclusions of law when it resolved:

              The Court’s original Conclusion of Law #2 concerning the retroactive
       applicability of Padilla v. Kentucky must now be reconsidered in light of an
       intervening Supreme Court ruling. In Chaidez v. U.S., 113 S.Ct. 1103 (2013), the
       Court held that Padilla did not apply retroactively in a federal felony conviction
       case.

                 INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON
                     RETROACTIVE APPLICATION OF PADILLA

       In its first issue, the State contends the trial court abused its discretion in granting habeas

relief on the basis of Padilla because Padilla created a new rule that did not apply retroactively to

Reyes’s case. We agree.

                                        Standard of Review

       An applicant seeking post-conviction habeas corpus relief on the basis of an involuntary

guilty plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d

657, 664 (Tex.Crim.App. 2006). An appellate court reviewing a trial court’s ruling on a habeas


                                                 4
application must view the evidence presented in the light most favorable to the trial court’s ruling

and must uphold that ruling absent an abuse of discretion. Kniatt, 206 S.W.3d at 664. A trial

court abuses its discretion when it rules on the basis of an erroneous legal standard, even if that

standard may not have been clearly erroneous when the ruling was made. See Nicholas v. State,

56 S.W.3d 760, 764 (Tex.App.--Houston [14th Dist.] 2001, pet. ref’d)(“A trial court abuses its

discretion when it applies an erroneous legal standard or when no reasonable view of the record

supports the trial court’s conclusion under the correct law and facts viewed in the light most

favorable to its legal conclusion.”); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.

1996)(rejecting a party’s claim that a trial court could not have abused its discretion in resolving an

issue of first impression because an “erroneous legal conclusion, even in an unsettled area of law,

is an abuse of discretion”); McGary v. Scott, 27 F.3d 181, 183 (5th Cir. 1994)(stating that a federal

district court abuses its discretion when it relies on an erroneous legal conclusion or clearly

erroneous finding of fact to dismiss a second or subsequent federal habeas petition for abuse of the

writ).

                                           Applicable Law

         A defendant is entitled to effective assistance of counsel when entering a guilty plea. Hill

v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985); Ex parte

Harrington, 310 S.W.3d 452, 458 (Tex.Crim.App. 2010). To prevail on an ineffective assistance

of counsel claim, an appellant must meet the two-pronged test set out in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Texas Court of Criminal

Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986). See also, Lopez v. State,

343 S.W.3d 137, 142 (Tex.Crim.App. 2011). Under that test, the appellant must show both that


                                                  5
counsel’s representation fell below an objective standard of reasonableness and the deficient

performance prejudiced the defense. See Lopez, 343 S.W.3d at 142. If the appellant fails to

show either deficient performance or sufficient prejudice, he cannot succeed in proving

ineffectiveness. Strickland, 466 U.S. at 697, 104 S.Ct. at 2070; Perez v. State, 310 S.W.3d 890,

893 (Tex.Crim.App. 2010).

                                             Discussion

       Reyes cannot rely on the retroactive application of Padilla to prove his trial counsel’s

performance was constitutionally infirm.

       It is evident from the trial court’s original and supplemental findings of fact and

conclusions of law that the trial court relied on Padilla in concluding Reyes’s trial counsel

rendered ineffective assistance, thereby entitling Reyes to habeas corpus relief. In Padilla, the

Supreme Court decided counsel had engaged in deficient performance under the first prong of the

two-pronged test set out in Strickland by failing to advise his client that a guilty plea made him

subject to deportation. Padilla v. Kentucky, 559 U.S. 356, 377, 130 S.Ct. 1473, 1488, 176

L.Ed.2d 284 (2010). The Supreme Court, however, did not address the question of whether its

holding in Padilla applied retroactively so as to permit defendants whose convictions were already

final at the time it issued its opinion to seek relief on this basis in a collateral proceeding. That

question was answered in the negative three years later.

       In Chaidez v. United States, the Supreme Court held that Padilla announced a new rule of

criminal procedure and, therefore, it does not apply retroactively. --- U.S. ---, ---, 133 S. Ct. 1103,

1107, 1113, 185 L.Ed.2d 149 (2013). Relying upon the reasoning in Chaidez, the Texas Court of

Criminal Appeals subsequently held that Padilla does not apply retroactively under the Texas


                                                  6
Constitution. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013)(explicitly

declining opportunity to accord retroactive effect to Padilla as matter of state habeas law).

       Here, Reyes pled guilty in 2006 and did not appeal his conviction. This conviction thus

became final before the Supreme Court decided Padilla.            Because Padilla does not apply

retroactively, Reyes cannot rely on Padilla in this proceeding to argue his trial counsel rendered

ineffective assistance for failing to inform him that his plea would lead to removal. See Chaidez,

--- U.S. at ---, 133 S. Ct. at 1113 (“Under Teague [v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103

L.Ed.2d 334 (1989)], defendants whose convictions became final prior to Padilla therefore cannot

benefit from its holding.”); De Los Reyes, 392 S.W.3d at 679 (“Applicant may not rely on Padilla

in arguing that he was denied effective assistance of counsel.”).

       Reyes does not argue Chaidez and De Los Reyes are not controlling here. Nor does he

argue his counsel’s failure to inform him of the immigration consequences of his guilty plea

constituted ineffective assistance under pre-Padilla law. Indeed, Reyes made no such claim in his

writ application. Instead, Reyes attacks the alternative arguments raised by the State in its second

and third issues. In those issues, the State argues, even if Padilla applies retroactively, Reyes has

nonetheless failed to establish deficient performance and sufficient prejudice under Strickland.

       In attacking the State’s alternative arguments, Reyes contends the trial court’s ruling

should be affirmed for two reasons. First, Reyes asserts the State failed to demonstrate how the

trial court’s original and supplemental findings of fact and conclusions of law do not support

granting habeas relief on the other grounds raised by Reyes in his writ application. Second and

alternatively, Reyes maintains that, if we conclude the trial court’s findings of fact and conclusions

of law are insufficient or inadequate to support the trial court’s ruling, we should remand the case


                                                  7
back to the trial court to develop the record rather than reverse and reinstate his conviction.

         We do not dispute the trial court made additional findings of fact that could ostensibly

support Reyes’s claims he was actually innocent and he received ineffective assistance because his

counsel failed to conduct an independent investigation and inform him of the law of self-defense.

However, it is clear from the trial court’s original and supplemental conclusions of law that the

trial court relied on the retroactive application of Padilla to conclude Reyes proved deficient

performance under the first prong of Strickland. The trial court neither identified nor relied on

any other theory of law to support its ruling, and under pre-Padilla law, Reyes’s plea would not be

rendered involuntary under the United States or Texas Constitutions even if his attorney failed to

inform him of the immigration consequences of his plea. See State v. Jimenez, 987 S.W.2d 886,

888-89 (Tex.Crim.App. 1999)(holding habeas applicant not entitled to relief on claim his attorney

failed to inform him of immigration consequence of his guilty plea because no such admonition

was constitutionally required). Because Padilla does not apply retroactively and pre-Padilla law

does not require admonishments of immigration consequences, Reyes has failed to establish his

trial counsel rendered deficient performance under Strickland. By failing to so establish, Reyes

has not proved his counsel’s performance was constitutionally infirm. Accordingly, we conclude

the trial court abused its discretion in granting Reyes habeas corpus relief on his claim that counsel

did not adequately inform him of the immigration consequences of his plea.

         The State’s first issue is sustained.4

                                                 CONCLUSION

         The trial court’s order granting relief is reversed, and Reyes’s guilty plea is reinstated.5

4
  Given our disposition of the appeal based on the State’s first issue, we need not address the State’s second and third
issues. See TEX.R.APP.P. 47.1.

                                                           8
                                                         /s/ Yvonne T. Rodriguez
June 30, 2014                                           YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




5
  We decline Reyes’s invitation to remand the case to the trial court to allow him to further develop the record. 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 the record is not sufficiently developed regarding alleged
prejudice. See Aguilar v. State, 375 S.W.3d 518, 526 (Tex.App.--Houston [14th Dist.] 2012), rev’d on other grounds,
393 S.W.3d 787 (Tex.Crim.App. 2013). Here, Reyes was given a meaningful opportunity at two hearings to develop
an evidentiary record to support his claim of ineffective assistance of counsel. There is nothing that indicates the trial
court unduly restricted Reyes’s ability to develop relevant evidence addressing the issues in dispute. Compare Ex
parte Hernandez, 398 S.W.3d 369, 375 (Tex.App.--Beaumont 2013, no pet.)(remand appropriate to develop record
because trial court unduly restricted the development of the record by confining evidence to the prior plea proceedings
in face of counsel’s efforts to offer other clearly relevant evidence).
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