Ex Parte Jorge Luis Tamayo
02-17-00135-CR
| Tex. App. | Dec 7, 2017Background
- Tamayo, a Mexican national raised in the U.S., was indicted (2015) for possession of <1 gram methamphetamine and accepted deferred adjudication probation in exchange for a guilty plea and a fine.
- Plea paperwork included a standard written admonition that noncitizens who plead guilty may face deportation; Tamayo later was detained by DHS and placed in removal proceedings.
- Tamayo filed an article 11.072 habeas application alleging ineffective assistance of counsel: he claims his attorney, Y. Leticia Sánchez Vigil, failed to advise him that his plea would make deportation unavoidable and that he would have pled differently if properly advised.
- The habeas record included Vigil’s letter and affidavit insisting she repeatedly warned Tamayo and his mother about deportation and that he understood; Tamayo submitted a handwritten statement and text-message evidence he said pointed to another possible owner of the drugs.
- The habeas court adopted the State’s proposed findings, found Vigil credible, denied relief without an evidentiary hearing, and Tamayo was later deported; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Tamayo’s deportation moot the appeal? | Deportation does not moot because a favorable ruling could affect ability to reenter the U.S. | Deportation could render the habeas claim nonjusticiable (addressed by court) | Not moot — collateral immigration consequences mean relief could be effectual |
| Was counsel ineffective for failing to advise re: immigration consequences, rendering plea involuntary? | Vigil failed to advise of inevitable deportation; plea not knowing/voluntary; would have gone to trial | Vigil’s affidavits and written admonishments show she warned Tamayo; no prejudice shown | Denied — habeas court’s credibility finding for Vigil upheld; plea was knowingly/voluntarily made |
| Did habeas court abuse discretion by denying without an evidentiary hearing? | Rules of civil procedure should require a hearing when material facts are disputed; new evidence (texts) warranted hearing | Article 11.072 permits but does not require hearings; record and affidavits suffice; Tamayo did not seek other statutory discovery | No error — article 11.072’s permissive procedures allow denial without hearing; no newly discovered evidence that would unquestionably establish innocence |
| Did Tamayo present newly discovered evidence (Herrera claim) warranting relief/hearing? | Text messages and call records point to another person (“Areeba”) who possessed the drugs | Messages/call records were not newly discovered or do not unquestionably prove innocence | Denied — evidence not newly discovered or dispositive; does not establish innocence by required clear-and-convincing standard |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about clear deportation consequences)
- Cuellar v. State, 13 S.W.3d 449 (Tex. App.—Corpus Christi 2000) (deportation can preserve right to appeal because conviction affects reentry)
- Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) (collateral consequences can constitute restraint for habeas purposes)
- Chacon v. State, 745 S.W.2d 377 (Tex. Crim. App. 1988) (mootness requires inability to grant effectual relief)
- Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) (standards for Herrera innocence claims)