Ex Parte Alicia Brumant, 14-15-00337-CR

Background

Appellant Alicia Brumant, an LPR since 1995, pled guilty in 2001 to possession of a controlled substance (less than 1 gram) and received deferred adjudication, community service, probation, and a fine; she successfully completed probation.
Her trial counsel represented both Brumant and a co-defendant (now husband) and advised Brumant to accept the plea despite the co-defendant allegedly admitting the drugs were his.
Counsel allegedly gave affirmative misadvice about immigration and post-plea consequences (stating no conviction if probation completed, promising an expunge-like process for a fee), and did not advise that the plea could lead to deportation/inadmissibility.
DHS initiated removal proceedings based on the plea; Brumant was ordered removed and appealed through the BIA and Fifth Circuit (appeal to SCOTUS possible).
Brumant filed an art. 11.072 application for habeas relief arguing ineffective assistance of counsel (Padilla / Strickland), conflict of interest (Cuyler), and that Chaidez/De Los Reyes retroactivity bars do not apply because of affirmative misadvice and because her deferred adjudication is not a final conviction under Texas law; the trial court denied/dismissed the writ without a hearing adopting the State’s proposed findings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Conflict of interest / ineffective assistance	Brumant: counsel’s dual representation created an actual conflict; prejudice presumed because counsel advised guilty plea instead of testing prosecution or going to trial.	State: no actual conflict because co-defendant pled before Brumant pleaded.	Trial court denied relief; appellant argues de novo review supports presumed prejudice under Cuyler and Strickland.
2. Affirmative misadvice re: immigration (Padilla)	Brumant: counsel affirmatively misrepresented immigration and conviction consequences, so Padilla claim survives Chaidez retroactivity.	State: Padilla not retroactive to convictions final before Padilla (Chaidez/De Los Reyes).	Appellant contends Chaidez does not bar claims based on affirmative material misrepresentations; trial court did not address this.
3. Finality of conviction for retroactivity (deferred adjudication)	Brumant: deferred adjudication with dismissal after successful probation is not a final conviction under Texas law; Chaidez/Teague should not bar relief.	State: under Guerrero, deferred adjudication can be treated as a conviction for immigration/Padilla purposes.	Appellant argues Guerrero cannot constitutionally be applied to LPRs who were not removable but for the plea; trial court adopted State's view without addressing appellant's equal protection/due process arguments.
4. Procedural status of prior writs (initial vs. successive)	Brumant: prior writ was dismissed without a merits hearing, so current petition is an initial habeas application and not barred.	State: treated prior filings as barring relief (implicit).	Appellant argues dismissal (not denial) renders current writ initial under art. 11.072 and related precedents; trial court did not hold an evidentiary hearing.

Key Cases Cited

Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 2010) (counsel must advise defendant about deportation risk from a guilty plea)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980) (actual conflict of interest standard and presumption of prejudice for adverse effects)
Chaidez v. United States, 133 S. Ct. 1103 (U.S. 2013) (Padilla announced a new rule; limited retroactivity to convictions not yet final)
State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013) (deferred adjudication may be treated as a conviction for immigration consequences)
Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013) (applied Chaidez retroactivity principles in Texas)
Martinez v. Ryan, 132 S. Ct. 1309 (U.S. 2012) (equitable exception allowing ineffective-assistance claims in initial-review collateral proceedings)