Bеnito ELIZONDO-VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
No. 06-11-00143-CR.
Court of Appeals of Texas, Texarkana.
Submitted Oct. 17, 2011. Decided Oct. 18, 2011.
354 S.W.3d 920
Bob D. Odom, Asst. Dist. Atty., Belton, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice MOSELEY.
Benito Elizondo-Vasquez (a citizen of Mexico legally residing in Texas) was charged with possession of between fifty pounds and 2,000 pounds of marihuana,1 a
Positions on Appeal
Counsel on appeal raises the issue of ineffective assistance оf counsel, asserting that this ineffectiveness rendered Vasquez’ plea of guilty involuntary. In its reply brief, the State reviewed the case and relevant caselaw, concluding that controlling United States Supreme Court authority requires a conclusion that Vasquez’ trial attorney was constitutionally ineffectivе for having failed to inform Vasquez that he would certainly be deported as a result of his conviction for such a crime; going further, the State concurs that Vasquez’ plea of guilty was necessarily involuntary due to trial counsel‘s error, thereby requiring reversal for a new trial.
We note that it is “the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.”
Admirably, in this circumstance, the State has nоt only recognized the futility of blindly opposing what appears to be settled law, it has fulfilled its primary statutorily-imposed duty to see that justice is done in this case. In doing so, the State has performed ethically and in the best tradition of the legal profession, a course of action we wholeheartedly commend.
Factual Background
Vasquez was stopped while driving a vehicle which contained 194 pounds of marihuana. After several meetings with his appointed counsel, Vаsquez decided to plead guilty to the charge. Vasquez was given (and stated that he understood) the standard statutory admonishments, which included advice that а conviction of a crime such as this could result in his deportation from the United States.
Vasquez filed a motion for new trial, upon which a hearing was conducted. In relevant part, the motion alleged that trial counsel did not advise him that his plea of guilty to this offense would (not could) result in his deportation. At thе hearing, trial counsel testified that Vasquez’ primary concern was how the charge and any resulting incarceration would impact his status as an immigrant. Triаl counsel continued in his testimony that he told Vasquez that it was possible that this case could adversely impact that status, but never gave him a definitive answer, telling Vasquez to consult with an immigration lawyer. Counsel did not research the law, and it is apparent that he was unaware that deportation or remоval is mandatory upon conviction for possession of a large quantity of marihuana and that trial counsel also was unaware that exceрtions to that result did not exist in immigration law where a guilty plea was entered. Counsel stated that he told Vasquez he had a good chance at “probаtion” (community supervision), but did not know what effect a deferred adjudication or a probated sentence might have on his status.
Vasquez testified that he inferred from counsel‘s statements he would get proba
Review of Applicable Law
The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on this claim, an аppellant must prove by a preponderance of the evidence (1) that his counsel‘s representation fell below an objective stаndard of reasonableness and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).
The two-pronged test of Strickland applies to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987). The voluntariness of the plea depends (1) on whether counsel‘s advice was within the range of competence demanded of attorneys in criminal cases, and if not, (2) on whether there is a rеasonable probability that, but for counsel‘s errors, appellant would not have entered his plea and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. 366; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).
In Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held that a criminal defense lawyer did not provide his noncitizen client effective assistance of counsel under Strickland when he did not wаrn him that he was almost certain to be deported if he pled guilty. The Court recognized that counsel could easily have determined that his plea would make him eligible for deportation “simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marihuana possession offenses.” Id. 130 S.Ct. at 1483; see
The high court recognized that some areas of immigration law and such consequences were unclear or uncertain and that the duty of counsel in such cases accordingly is more limited. However, “when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.” Id. at 1477. Counsel‘s suggestion that Vasquez should ask a different, additional attоrney is not sufficient. Further, the United States Supreme Court‘s analysis of the statute points out that for purposes of immigration, an alien is convicted where he is found guilty, or when he enters a plea of guilty and some form of punishment, penalty, or restraint on liberty is imposed. Id. at 1483;
Vasquez testified that he would nоt have pled guilty had he known that such a
Other appellate courts have addressed this situation and cоncluded that such a failure to provide the requisite advice constituted deficient performance under Strickland and Padilla. We must agree. Further, in light of clear and consistent evidence that Vasquez would not have pled guilty but for the deficient advice, we must likewise hold that due to counsel‘s ineffective assistance, the plea was involuntary.
We reverse the case and remand to the trial court for further proceedings.