

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



 
 
 
 
 
EX PARTE:  BLANCA
  RAMIREZ
 
 


 
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                  No. 08-11-00073-CR
 
Appeal from the
 
112th
  District Court 
 
Of
  Pecos County, Texas 
 
(TC# 2938)
 



 
                                                                  O
P I N I O N
The State appeals the trial court’s grant of
a writ of habeas corpus in favor of Appellee. 
The State’s sole point of error is that the trial court erred in
granting Appellee’s request for habeas relief. 
For the reasons that follow, we affirm.
BACKGROUND
            Appellee
was indicted on two counts of Indecency with a Child on April 27, 2009, with
both charges classified as second-degree felonies.  Attorney Frank Lacy was retained to act as
Appellee’s counsel.  Pursuant to a
negotiated plea agreement, Appellee pleaded guilty to Count Two of the
indictment, and Count One was considered under Texas Penal Code § 12.45.  The court entered an Order of Deferred
Adjudication, sentencing Appellee to five years of deferred adjudication/community
supervision, community service, and court costs.  At the hearing, the trial court gave Appellee
written and verbal admonishments regarding the entry of her plea.  The written admonishment (#6) indicates that a
plea of guilty “may result in your deportation, or your exclusion from admission
to this country, or your denial of naturalization under federal law.”  The court’s verbal admonishment was that “a
plea of guilty or nolo contendere in connection with this offense, that can
result in your deportation or exclusion of admission to this country or denial
of naturalization under federal law.”
            On
July 3, 2010, the Department of Homeland Security detained Appellee and
commenced removal proceedings against her because of her guilty plea.
Appellee filed a
post-conviction application for writ of habeas corpus (“Application”) pursuant
to Article 11.072 of the Texas Code of Criminal Procedure on December 17,
2010.  In her Application, Appellee
alleged that “Mr. Lacy (a) failed to investigate the immigration consequences of
pleading guilty to the instant offense, (b) failed to seek an immigration-safe
legal disposition for Ms. Ramirez, and (c) failed to properly advise Ms.
Ramirez of the ‘succinct, clear and explicit’ legal consequences Ms. Ramirez
would face if she entered a guilty plea to the instant offense.”  The State filed a response to the Application
on January 14, 2011, and Appellee filed a reply to that response on January 25,
2011.
In Appellee’s
Application, she included an affidavit in which she stated, “Mr. Lacy did not
tell me that I would lose my immigration papers if I pled guilty.  He certainly did not tell me that I was
facing certain deportation.”  Appellee’s
affidavit also stated:
If I had known the immigration
consequences, including my present incarceration, I would have fought my case
or asked Mr. Lacy to try to get a plea bargain that did not involve my
deportation or at least give me a chance to fight my immigration case.
 
            On
January 25, 2011, the habeas court heard the Application and, following a
hearing where testimony was provided by a number of witnesses, entered an order
granting the writ of habeas corpus.
            At
the habeas hearing, Mr. Lacy testified that he advised Appellee “that she would
likely be deported or could be deported as a result” of her plea.  Mr. Lacy provided an affidavit in the State’s
response where he stated “I specifically advised Ms. Ramirez of the legal
consequences of her plea,” however, Mr. Lacy testified that he did not advise
Appellee that pleading guilty to indecency with a child is a presumptively
mandatory deportation offense and that immigration law did not allow an
immigration judge to cancel or pardon said deportation.  Mr. Lacy specifically stated “I did not tell
Ms. Ramirez she would be deported with absolute certainty.  I did advise Ms. Ramirez that she could
be deported as a result of her plea.” 
Mr. Lacy testified that “there are very few absolutes.  So I was careful not to say absolutely this
would happen or absolutely this would happen.”
At the conclusion
of the hearing, the trial court expressed concerns about the admonishments
given by Mr. Lacy to Appellee and found that Appellee was given incorrect legal
advice:
The Court:  The testimony today from Mr. Lacy causes the
Court concern just from the perspective that he was adamant that he told her
that a plea in this case could – that she could be deported, that she could,
that there is a possibility.
And the Court is of
the opinion that . . . if you look at the federal statutes, that advice is
incorrect because it’s not that she could be deported; she will be deported.
So I find that
counsel’s advice to her was incorrect, in that he said – he said that she could
be deported, which lends itself to the idea, well, I can take a gamble and hope
that something will come up between now and the time that immigration gets
ahold of this thing.
It lends itself to a
prayer that she will not be deported, where, if you read the statutes, the
federal statutes, the advice to her should have been there will be certain deportation
on your plea of this.
 
            The
habeas court specifically found that “he [Mr. Lacy] gave her [Appellee]
incorrect legal advice,” and that “I do find that in this situation the lawyer
gave her incorrect information as to what the consequence was.  And, you know, to his defense, at the time he
made that, this was a collateral issue.”[1]
 The habeas court also found that the
trial court’s admonishment number 6 was incorrect, based on Appellee’s
circumstances.[2]  The habeas court did draw a distinction between
a trial court’s admonishments and the legal advice an attorney is to give to a
client, and noted that while Mr. Lacy correctly performed as a lawyer in providing
Appellee advice, also indicated that Mr. Lacy’s advice was not correct.  The habeas court noted that while there was
no “bad conduct” on the part of Mr. Lacy, the advice given was not the correct
advice, that is, that “you are going to get deported if you plead guilty to
this crime.”  The habeas court performed
an analysis under Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed2d 674 (1984).  The court found obvious prejudice and found
that because Appellee was given incorrect legal advice, even if on a collateral
issue, “that it casts a shadow on the issue of freely and voluntarily made.” [3]
 The State timely appealed.
DISCUSSION
The State raises a
single point of error, arguing that the habeas record fails to establish that
Appellee’s trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed2d 674 (1984), and that the habeas court erred in
granting the habeas relief requested by Appellee.
The decision to
grant or deny an application for writ of habeas corpus rests within the trial
court’s discretion.  We apply an abuse of
discretion standard when reviewing a trial court’s decision to grant or deny
habeas relief.  Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App. 2006); Washington v. State, 326 S.W.3d 701, 704
(Tex.App.--Houston [1st Dist.] 2010, no pet.); Ex parte Torres, 08-10-00330-CR, 2012 WL 1431660 (Tex.App.--El Paso
Apr. 25, 2012, no pet.)(not designated for publication).  We view the facts in the light most favorable
to the trial court’s ruling and defer to the trial court’s implied factual
findings that are supported by the record.  Wheeler,
203 S.W.3d at 325-26; Washington, 326
S.W.3d at 704.  See also Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.
2003)(per curiam)(holding that reviewing courts afford almost total deference
to the court’s determination of the historical facts supported by the record,
especially when those facts are based on an evaluation of credibility and
demeanor, and that if the trial court does not make explicit findings that the
reviewing court will grant deference to implicit findings that support the
court’s ruling), overruled on other
grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007); Ex parte Torres, 2012 WL 1431660, at *2 (noting
same).  We will reverse the trial court’s
ruling only if we conclude it is arbitrary, unreasonable, and made without
reference to guiding rules or principles. 
Montgomery v. State, 810
S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh’g).  We must affirm a trial court’s ruling on a
habeas petition if the ruling is correct based on any legal theory before the
court, regardless of whether some of the reasons given by the court appear to
be faulty.  Ex parte Carpio-Cruz, 08-10-00240-CR, 2011 WL 5460848, *3
(Tex.App.--El Paso Nov. 9, 2011, no pet.).
To be entitled to
habeas relief on the basis of ineffective assistance of counsel, a petitioner
must prove by a preponderance of the evidence that counsel’s performance was
deficient and that she was prejudiced as a result.  Ex
parte Carpio-Cruz, 2011 WL 5460848, at *4. 
To establish deficient performance, the petitioner must show that
counsel’s performance fell below an objective standard of reasonableness based
on prevailing professional norms.  To establish
prejudice, the petitioner must show that there is a reasonable probability
that, but for counsel’s deficient performance, the result of the proceeding
would have been different.  Ex parte Carpio-Cruz, 2011 WL 5460848,
at *4, citing Perez v. State, 310
S.W.3d 890, 893 (Tex.Crim.App. 2010).
Appellee was
charged with two counts of indecency with a child, each a second-degree felony,
and entered into a negotiated plea agreement where Appellee agreed to plead
guilty to one offense and the other would be considered under Texas Penal Code
§ 12.45.  The trial court deferred
adjudication of guilt and placed Appellee on community supervision for a period
of five years.
The federal government
may commence deportation proceedings against Appellee based on her guilty plea
to a charge of indecency with a child. 
Such an offense is an “aggravated felony” for purposes of removal
proceedings.  See 8 U.S.C. § 1227(a)(2)(A)(iii)(2008); 8 U.S.C. § 1101(a)(43)(A)(2011);
Delgado-Reynua v. Gonzales, 450 F.3d
596, 597 (5th Cir. 2006)(noting same). 
Deferred adjudication is a “conviction” for immigration purposes and
constitutes a valid basis for deportation. 
Garnica-Vasquez v. Reno, 40
F.Supp.2d 398, 405-6 (W.D. Tex 1999). 
Based on the plain language of the applicable federal statutes, and for
purposes of immigration, Appellee was convicted of an aggravated felony and was
subject to removal proceedings.
The State argues
that the habeas court erred in concluding that:  (1) Mr. Lacy failed to investigate Appellee’s
immigration status; and (2) failed to advise her that a guilty plea “would”
result in a deportation.  We disagree.
            As
we noted in Ex parte Carpio-Cruz, advising
a defendant that a guilty plea “could” result in removal and that the defendant
“‘could’ face immigration consequences” renders counsel’s advice deficient when
the applicable law would result in removal proceedings.  Ex
parte Carpio-Cruz, 2011 WL 5460848, at *7. 
Specifically, we noted:
Counsel testified that
she was aware of and understood all of these statutes, yet she only advised
Carpio that his guilty plea ‘could’ result in removal and he ‘could’ face
immigration consequences.  Because
Carpio’s deportation was ‘practically inevitable,’ this advice was deficient.  See
Padilla, 130 S.Ct. at 1480; Ex parte
De Los Reyes, 2011 WL 3841379, at *6; see
also Salazar v. State, 2011 WL 4056283, at *3 (Tex.App.--Eastland Aug. 31,
2011, no pet.h.)(‘[T]he correct advice, which was that the plea of guilty would
result in certain deportation, was not given.  Both the terms “likelihood” and “possibility”
leave open the hope that deportation might not occur.’); Ex parte Romero, 2011 WL 3328821, at *2 (Tex.App.--San Antonio Aug.
3, 2011, no pet.)(‘Because trial counsel only informed Romero about “possible”
immigration consequences where the law made deportation a virtual certainty,
counsel’s performance was deficient.’).
 
Ex
parte Carpio-Cruz, 2011 WL 5460848, at *7.
            Counsel’s
advice that a defendant “could” face immigration consequences has been found to
be inadequate for purposes of the first prong of Strickland.  See Ex parte Olvera, ---S.W.3d ---, 2012
WL 2336240 (Tex.App.--Dallas June 20, 2012, no pet.h.).  There, counsel advised his client that he
“could” be deported and that there “can” be a deportation.  Ex
parte Olvera, 2012 WL 2336240, at *2-3. 
The Court of Appeals found that because the immigration consequences in
that case were “clear” (that there would be an automatic deportation and denial
of reentry), counsel had a duty to give his client “clear advice about those
consequences.”  Id., at *3.  Advising the
defendant that he “could” be deported, not that the guilty plea would result in
automatic deportation, indicated that counsel’s performance fell below an
objective standard of reasonableness, thereby satisfying the first prong of Strickland.  Ex
parte Olvera, 2012 WL 2336240, at *4.
            Here,
both the trial court and Appellee’s trial counsel advised Appellee that she
“could” be subject to immigration consequences which, in light of the fact that
the conviction “would” result in deportation proceedings, was deficient.  This failure indicates that Appellee met the
first prong of Strickland:  that her counsel’s performance fell below an
objective standard of reasonableness.[4]
            To
establish the second prong of Strickland,
Appellee must show that there was a reasonable probability that, but for
counsel’s deficient performance, the result of the proceeding would have been
different.  Ex parte Carpio-Cruz, 2011 WL 5460848, at *4.
The State contends
that Appellee failed to argue and allege the right kind of prejudice necessary
to meet the second Strickland
prong.  The State refers to Hill v. Lockhart, 474 U.S. 52, 60, 106
S.Ct. 366, 371, 88 L.Ed.2d 203 (1985) and Ex
parte Jones, 05-93-01796-CR, 1997 WL 778656 (Tex.App.--Dallas Dec. 19,
1997, no pet.)(not designated for publication) in support of this argument.  In Hill,
the habeas petitioner did not allege that he would have pleaded not guilty and
insisted on a trial if he had been advised of parole eligibility correctly, and
alleged no special circumstances showing he placed emphasis on parole
eligibility in deciding whether or not to plead guilty.  Hill,
474 U.S. at 60, 106 S.Ct. at 371.  In Jones the Court of Appeals noted that
the petitioner did not allege special circumstances and he failed to allege
that, had his counsel discovered certain unsigned papers, he would have pleaded
not guilty and sought a trial.  Jones, 1997 WL 778656, *2.  Specifically, the court noted that “Appellant
merely contends he would have been in a more favorable bargaining position with
the State, not that he would have changed his plea.”  Jones,
1997 WL 778656, *2.
In the instant
case, Appellee indicated that she has no ties to Mexico, has lived in the
United States since she was five, that her family resides in the United States
and all of her children are United States citizens.  As noted above, Appellee’s affidavit stated:
If I had known the immigration
consequences, including my present incarceration, I would have fought my case
or asked Mr. Lacy to try to get a plea bargain that did not involve my
deportation or at least give me a chance to fight my immigration case.
 
Appellee’s
affidavit indicates that there were circumstances outside of the pleadings
which could be considered “special circumstances,” and that had she received
appropriate legal advice she would have fought her case.  These facts distinguish the instant case from
Hill and Jones. 
The State next
argues that the habeas court erred in finding that Appellee’s plea was
involuntary.  We disagree.  Counsel’s advice can provide assistance so
ineffective that it renders a guilty plea involuntary.  Hill,
474 U.S. at 56, 106 S.Ct. at 369.  A
guilty plea is not knowing or voluntary if made as a result of ineffective
assistance of counsel.  Ex parte Burns, 601 S.W.2d 370, 372
(Tex.Crim.App. 1980); Ex parte
Moussazadeh, 361 S.W.3d 684, 689 (Tex.Crim.App. 2012)(same).  A defendant’s decision to plead guilty, when
based on the erroneous advice of counsel, was not voluntary and knowing.  Moussazadeh,
361 S.W.3d at 689.
The record
reflects that Appellee was a lawful permanent resident and that removal
proceedings were commenced against Appellee as a result of her guilty
plea.  As noted above, the immigration
consequences of her plea were such that Appellee would be subject to removal
proceedings.  See 8 U.S.C. § 1101(a)(48)(A); 8 U.S.C. § 1227(a)(2)(A)(iii); 8
U.S.C. § 1229b(a)(2008); 8 U.S.C. § 1182(a)(2)(A)(i)(I)(2010).  Appellee, in an affidavit, indicated that she
would have sought a different disposition of her case, including either seeking
a trial or an immigration-neutral plea agreement, if she had been advised of
the certainty of immigration consequences in her case.
The trial court
found prejudice against Appellee based on her receiving incorrect legal advice,
despite labeling it as a collateral issue, and this affected whether Appellee
entered into the plea freely and voluntarily. 
In addition, Appellee has alleged the appropriate type of prejudice such
that she would not have pled guilty if she had she received the correct legal
advice.  We find that the trial court did
not err in making this finding.[5]  See Ex
parte Burns, 601 S.W.2d at 372; Moussazadeh,
361 S.W.3d at 689.
Accordingly, we
conclude that Appellee met her burden to show a reasonable probability that,
but for the erroneous advice, she would not have pleaded guilty and would have
gone to trial, see Ex parte Olvera,
2012 WL 2336240, at *4, citing Ex parte
Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999), thereby satisfying the
second prong of Strickland.
We hold that the
trial court did not abuse its discretion in granting Appellee’s application for
a writ of habeas corpus based on the habeas court’s determination of
ineffective assistance of counsel as set out in Strickland.  Having
determined that the habeas court did not err in its Strickland analysis, we overrule the State’s sole point of error.[6]
CONCLUSION
            As the
habeas court did not err in its Strickland
analysis, we overrule the State’s objection and the habeas court’s grant of
Appellee’s writ is affirmed.
 
 
August
1, 2012
                                                                        CHRISTOPHER
ANTCLIFF, Justice
 
Before
McClure, C.J., Rivera, and Antcliff, JJ.
 
(Do
Not Publish)




[1]
The habeas court briefly touched on the Padilla
v. Kentucky, – – U.S. – –, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010) arguments
raised by both parties in the underlying case, but made no findings on whether Padilla applied to the case.
 


[2]
Admonishment #6:
 
If you are not a citizen of the
United States of America, a plea of guilty or nolo contendere for or in
connection with the offense with which you are charged in this case may result
in your deportation, or your exclusion from admission to this country, or your
denial of naturalization under federal law.
 


[3]
The State states that the court filed findings of fact and conclusions of law,
but the appellate record before us does not contain any such findings or
conclusions.  The record reflects that
the habeas court asked counsel for Appellee to prepare an order and findings of
fact.


[4]
Because the habeas court did not abuse its discretion in holding that the
failure to advise of the immigration consequences of the guilty plea would
result in immigration consequences, we do not address the State’s contention of
error regarding investigation of immigration status.


[5]
We note that many of cases cited by the State are distinguishable from the
facts in the instant case.  See Ex parte Rodriguez, 350 S.W.3d 209,
211 (Tex.App.--San Antonio 2011, no pet.)(noting that deportation consequence
was clear when the original charge was an aggravated felony, but final charge
was a misdemeanor and that as a result, nothing in the record indicated that
removal was certain in that case); Ex
parte Diaz, 10-10-00344-CR, 2011 WL 455273, *1 (Tex.App.--Waco Feb. 9,
2011, no pet.)(mem. op., not designated for publication)(denying habeas relief
where trial counsel testified that he advised defendant that “I explained to
him that there was a significant chance that he could be deported as a result
of his felony conviction.”); Ex parte
Martinez, 13-10-00390-CR, 2011 WL 2976863 (Tex.App.--Corpus Christi July
21, 2011)(mem. op., no designated for publication), vacated and remanded, 2012 WL 1868492 (Tex.Crim.App. May 16,
2012)(remanding for additional consideration as to whether defendant was
advised about automatic deportation for offense); Ex parte Elhaj, 02-11-00054-CR, 2011 WL 4008118 (Tex.App.--Fort
Worth Sept. 8, 2011, pet. ref’d)(mem. op.)(noting difference in advising
defendants of immigration consequences in misdemeanor versus felony cases); State v. Golding, 01-10-00685-CR, 2011
WL 2732579 (Tex.App.--Houston [1st Dist.] July 14, 2011, pet. ref’d)(mem. op.
on reh’g)(holding on rehearing that approval of defendant's naturalization
petition eliminated the basis for his request for habeas relief and rendered it
moot, vacating judgment, and dismissing habeas application).
 


[6]
Because we find no
error under Strickland, we do not
address the arguments concerning the retroactivity of Padilla raised by the parties.
 


