Ex Parte Jorge A. Garcia, 04-14-00809-CR

Background

In 2000 George Garcia pleaded no-contest to state-jail felony possession of cocaine; the court deferred adjudication and placed him on two years’ community supervision.
Plea paperwork contained a written admonishment, signed by Garcia, stating he could be deported as a result of the plea; sentencing judge also warned Garcia he would likely be deported and Garcia was taken into INS custody immediately after sentencing.
In 2014 Garcia filed an Article 11.072 habeas application seeking to withdraw his 2000 no-contest plea, alleging plea counsel misadvised him about immigration consequences (a Padilla-type ineffective-assistance claim).
The criminal law magistrate held an evidentiary hearing; witnesses (Garcia and his ex-wife) testified that counsel told Garcia he would not have immigration problems or that “everything would be fine.”
Trial court found written admonishments were given and signed, concluded Padilla announced a new rule not retroactive to convictions final before 2010, and denied relief; Garcia appealed.
Appointed appellate counsel filed an Anders/High brief concluding the appeal is frivolous and moved to withdraw, while advising Garcia of his pro se rights.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Garcia may obtain relief under Padilla-based ineffective-assistance claim	Garcia: plea counsel failed to advise that deportation would follow; plea involuntary	State: Padilla is not retroactive; Garcia was properly admonished by the court and signed written warnings	Denied — Padilla is a new rule and is not retroactive to convictions final before 2010; written admonishments supported denial
Whether pre-Padilla counsel’s failure to advise on immigration consequences renders plea involuntary	Garcia: counsel’s incorrect assurances caused involuntary plea	State: under pre-Padilla law immigration consequences were collateral; court admonishment suffices	Denied — immigration consequences were treated as collateral pre-Padilla; plea not involuntary given admonishments
Whether plea counsel was ineffective under Strickland for advising/requesting a plea	Garcia: counsel should not have accepted no-contest given deportation risk; strategy was deficient	State: counsel’s strategy is presumed reasonable; plea secured deferred adjudication (no incarceration) — a benefit	Denied — record does not overcome presumption of reasonable strategy; no showing counsel’s performance fell below objective standard
Whether appointed appellate counsel properly seeks to withdraw under Anders/High	Garcia: (n/a — exercise pro se rights if he chooses)	Counsel: after review, no meritorious appellate issues; provided notice and pro se access instructions	Granted motion to withdraw if court accepts Anders brief; Garcia informed of right to pro se access and to file pro se brief

Key Cases Cited

Anders v. California, 386 U.S. 738 (1967) (procedural requirements when appointed counsel urges appeal is frivolous)
Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about clear risk of automatic deportation when law is succinct and straightforward)
Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla announced a new rule and is not retroactive to convictions final before Padilla)
State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013) (Article 11.072 framework and retroactivity analysis adopting Chaidez for state law)
Ex parte Garcia, 353 S.W.3d 785 (Tex. Crim. App. 2011) (standard of review for Article 11.072 denials)
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) (deference to trial court fact findings and credibility in post-conviction proceedings)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)