Lopez, Ex Parte Jose J.
PD-1289-15
| Tex. App. | Oct 15, 2015Background
- Jose J. Lopez, a Mexican national, pleaded guilty to attempted delivery of a controlled substance to a minor; the court deferred adjudication and placed him on five years' community supervision.
- Lopez later filed an art. 11.072 habeas application alleging trial counsel failed to correctly advise him of immigration consequences (deportation, inadmissibility, aggravated-felony consequences) before his plea.
- Lopez submitted his own affidavit and an immigration-law expert affidavit asserting counsel gave incorrect or incomplete advice and that, had he known the true immigration consequences, he would have gone to trial.
- Trial counsel filed a rebutting affidavit stating he advised Lopez about immigration consequences, believed the offense was an aggravated felony, and that Lopez declined trial once a jail term was removed from the plea offer.
- The trial court denied relief without an evidentiary hearing, finding counsel’s affidavit credible and that Lopez’s plea was voluntary; the Tenth Court of Appeals affirmed in a memorandum opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance re: immigration advice | Lopez: counsel failed to correctly advise that plea (including deferred adjudication) would be treated as a conviction under immigration law and cause mandatory deportation; plea therefore not knowing/voluntary | State/trial court: counsel’s affidavit showed he informed Lopez of immigration consequences (including likely deportation and aggravated-felony consequences); counsel acted reasonably | Court: rejected Lopez’s claim — counsel’s affidavit was credible and Lopez failed to prove counsel’s advice was outside competent range; no relief granted |
| Whether trial-court admonishments can substitute for counsel’s pre-plea advice | Lopez: judge’s brief colloquy warnings and plea forms cannot substitute for counsel’s timely, substantive pre-plea advice under Padilla | State/trial court: totality of representation (counsel’s advice, plea papers, and court admonishment) shows Lopez was warned and plea was voluntary | Court: held the record shows Lopez was warned by counsel, the court, and plea papers; admonishments contributed to finding plea knowing and voluntary |
| Need for evidentiary hearing on controverted facts | Lopez: affidavits and expert allegations created disputed facts requiring a hearing | State/trial court: record (affidavits and plea transcript) allowed resolution without live hearing under art. 11.072 | Court: denied request for hearing; held trial court did not abuse discretion in resolving on submitted affidavits |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (Sixth Amendment duty to advise noncitizen defendants about clear deportation consequences of guilty pleas)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland in plea context: prejudice inquiry focuses on effect on plea decision)
- Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012) (guilty plea attack viable where ineffective assistance renders plea involuntary)