Leonardo Aguilar v. State

on the State, suppress motion Comperry’s v. See Cain source. (“[I]ntoxication from da- information grounds (Tex.Crim.App.1997) it contained Further, tabase was unreliable because credibility.”). bears later irregularities” and was con- “even if “facial [Com- specifically found Boles], We overrule Com- firmed to be incorrect. informed perry] [Officer had so perry’s issue. accepted the information would defendant, just over what TCIC told him.” Comperry Mr. had

what judgment. the trial court’s We affirm Comperry contends Boles To the extent engaged greater in a effort should actually two or had Comperry

confirm convictions, acknowledge we must

more to take additional requiring officers report showing to confirm a

steps TCIC convictions, delay prior DWI

two evi- loss of testing possibly result AGUILAR, Appellant Leonardo suspect’s body. dence of intoxication State, Mata v. (“[A] test nearer (Tex.Crim.App.2001) Texas, Appellee. The STATE of alleged time of the offense time No. 14-11-00227-CR. ability the sub- increases the to determine ject’s con- Texas, offense-time [blood-alcohol BAC Appeals tent].”). true if particularly (14th Dist.). officers This Houston in an- required to contact the clerk were July hours. county during non-business cer- time required The additional ren- delay blood and could

tainly draw irrelevant, depending on the

der it amount required

of time such confirmation. 704, 709

See Crider “it

(Tex.Crim.App.2011) (explaining hourly 0.02 de- four BAC

takes hours drop to make a of 0.08

creases BAC

zero”). Comperry’s protesta- Other than and incorrect” data “confusing

reflecting a conviction second DWI high- charge obstructing a lesser

also Boles

way, there was no reason for Officer question reliability report. eventu- report

The assertion that the mitigate incorrect

ally proved does Boles possessed

contradict the fact that a credible source

reliable information from report. that he received the time facts, we

On these conclude that deny-

court did not abuse its discretion Bennett, Houston,

Mark appellant. Miller, Mandy Katy, for the State. FROST, Panel consists of Justices SEYMORE, and JAMISON.

OPINION JAMISON, MARTHA HILL Justice. Appellant Aguilar Leonardo appeals from applica the trial court’s denial of his corpus. tion for writ of habeas Appellant, national, foreign contends that his trial underlying proceeding apprise him of the adverse consequences guilty plea, thus render whether a not tell involuntary under Padilla ing his —, not have definitely would or would Kentucky, (2010). immigration consequences. Following the L.Ed.2d 284 case, reverse re and of dictates habe- grant to Appellant urged further proceedings. mand for ground that Medlin corpus as relief on provided ineffective assistance of had Background failing appellant to inform counsel was 2005, charged April appellant In con- possession to guilty pleading felony possession gram of less than a with deportation trolled substance rendered 2006, appellant In of cocaine. October conclu- mandatory. At the presumptively charge was re- guilty, pleaded hearing, during which sion of a brief to a class-A misdemeanor. As duced re- evidence, were admitted into two affidavits State, was sen- quested applica- judge appellant’s denied days jail to ten in ordered tenced record that judge tion. The stated on the fíne. a five-hundred-dollar pay sufficiently Medlin had counseled professional norms. application pursuant prevailing an for writ Appellant filed 21, corpus findings December 2010. In of fact nor conclusions of on Neither court, to the presented appel- affidavit law or filed. requested were in averred that his counsel the cocaine lant Corpus Habeas Review him case told that his

possession result in guilty plea could review court’s deci generally We a trial the plea to inform him that application sion on an for habeas mandato- presumptively make under an abuse of discretion standard Appellant further stated that if his ry. Garcia, S.W.3d parte review. See Ex a guilty plea had him that counsel told (Tex.Crim.App.2011). appli An deportation presumptively would make cant seeking post-conviction mandatory, pleaded he would not establishing by a relief bears the burden of on a guilty and would have instead insisted preponderance of the evidence He said that residence the United trial. Rich parte facts him to Ex entitle relief. him very was and was important States ardson, (Tex.Crim.App. 70 S.W.3d him in important thing respect the most 2002), present consider the evidence We underlying to the case. to the habe- light ed most favorable State, Medlin, ruling. appellant’s in as court’s Kniatt Charles case, (Tex.Crim.App.2006). in his underlying stated affidavit S.W.3d when at the to This deferential review even practice it was his time rather findings implied re- are guilty plea clients that a could advise admission, rather than and based on affidavits deportation, explicit exclusion sult Wheeler, naturalization, testimony. also than live or denial (Tex.Crim.App. filed 203 plea admonishments S.W.3d stated 2006); court.1 further with the Medlin stated Charles If the resolu (Tex.Crim.App.2004). case 208 practice that he followed that deportation, may your result in this offense 1. The form admonishments contain country, following language paragraph your 4: "CITI- to the exclusion from admission you If ZENSHIP: are not citizen of your or the denial of naturalization America, States of either United applicable law." federal Contest) (No Guilty Nolo Contendré question tion of the ultimate turns on an order satisfy prejudice prong in a standards, application guilty plea legal we review a defendant or habeas corpus applicant novo. Ex parte determination de Pe “must show that there is terson, (Tex.Crim. reasonable probability but for coun errors, sel’s App.2003), part pleaded overruled Lewis, grounds, and would have insisted on going Hill, trial.” U.S. at S.Ct. 366. the Supreme Court ad- Pleas, Guilty Ineffective Assistance dressed the application these principles Padilla Claims & where the of a voluntariness guilty plea is brought determining question The test for the into because validity a defen- dant’s counsel guilty plea plea apprise failed to him represents is “whether or her of the immigration consequences a voluntary intelligent among choice plea. 130 S.Ct. 1473. The court the alternative of action deter- open courses mined that “advice Alford, defendant.” North Carolina v. is not categorically from 25, 31, removed the am- 400 U.S. 91 S.Ct. 27 L.Ed.2d bit of the Sixth (1970). right Amendment to coun- two-pronged Strickland v. sel.” Id. at 1481-82. After reviewing Washington applies challenges test historical developments in immigration guilty pleas, such the one in the present law, the court concluded under cur- case, premised on ineffective assistance of law, rent “if a has noncitizen committed a Lockhart, 52, 58, counsel. Hill v. 474 U.S. removable offense ... his removal 106 S.Ct. 88 L.Ed.2d (citing practically inevitable but for the possible Washington, Strickland v. 466 U.S. exercise of limited equitable remnants of (1984)). 104 S.Ct. 80 L.Ed.2d 674 Attorney discretion vested in the General Under in order to demonstrate to cancel removal for noncitizens convict- counsel, ineffective assistance a defen ed particular classes offenses.” Id. dant must first per show Moreover, at 1480. preserving oppor- deficient, i.e., formance was that his assis tunity to remain in the United States tance objective fell below an standard of might a important be more consideration second, reasonableness; a defendant must to a in considering defendant affirmatively prove prejudice showing a offer than possibility of incarcer- reasonable probability but for coun ation. Id. at 1484. errors, unprofessional sel’s the result of proceeding would been different. Regarding required the advice of coun- 687-88, 694, 2052; 466 U.S. at 104 S.Ct. presented possible sel when immigra- with see also Thompson v. tion consequences plea, from Any allegation immigration Court acknowledged issues be firmly ineffectiveness must can be complex founded and indicated that record, certainty and the record must affirma of the advice could fluctuate de- tively alleged demonstrate the ineffective pending certainty on the of the adverse ness. Thompson, 9 S.W.3d at immigration consequences. Id. at 1483.2 “agree[d] 2. The explained Court stated it with Pa- 1478. The Court later constitutionally competent dilla that terms of the statute under which would have advised him that his "succinct, conviction clear, Padilla himself fell were drug subject made him distribution explicit” pre- and thus "his deportation.” automatic 130 S.Ct. at 2012). (W.D.Tex. Feb. Other courts not reach *3 the Padilla Court did Although test, prong jurisdictions disagreed, Strickland hold prejudice in other in that the Court as such was not before apply retroac Padilla does relief on note that “to obtain appeal, it did States, See, tively. e.g., Chaidez United claim, con- must type petitioner (7th Cir.2011), cert. F.3d vince the court that a decision 2101,182 granted,-U.S.-, been rational un- bargain would have (2012); L.Ed.2d 867 Id. der the circumstances.” (10th 671 F.3d Cir. Hong, 2011). the for For the reasons stated in Retroactively Applies Padilla below, set and discussed opinions mer oc conviction appellant’s Because agree our courts and with sister issued curred before holding courts retroa Padilla, we must deter opinion its ctively.3 ap be opinion mine whether that should retroactively collateral plied proceedings Appeals The Court of Criminal corpus Neither such at this action. adopted Supreme States has United Court, the of Texas Court Supreme Lane, analysis Teague v. 489 Court’s has ad Appeals, nor Criminal 288, 1060, 334 109 S.Ct. 103 L.Ed.2d U.S. Two of sister this issue. our dressed (1989) to of law determine whether rule courts, Appeals the El Paso Court retroactively in Texas habeas cor Appeals, as well as the First Court Lave, E.g., 257 pus proceedings. jurisdictions, other number of courts from 235, 236-7 apply that Padilla should determined Teague is The threshold issue Reyes, retroactively. See Ex De Los in question whether the rule a “new 723, Paso (Tex.App.-El 350 728-29 rule” or an “old rule.” With two stated 2011, pet. granted); parte Tanklevska exceptions, “new constitutional rules 86, ya, (Tex.App.-Hous 93-95 applicable to procedure criminal will not be 2011, filed); also ton see [1st Dist.] which before those cases have become final Orocio, 630, v. 645 641 F.3d (3d States, Teag the new rules are announced.” See Cir.2011); v. McNeill United 310, 369471, ue, SS, A No. 2012 WL 109 S.Ct. 1060.4 A-11-CA495 U.S. granted the sumptively mandatory.” Appeals Id. The Court of Criminal has at 1483. however, noted, petition discretionary Court further that: review De Los However, Reyes. high- undoubtedly not wait on the will ... numerous do [t]here be opinions. general- in which the conse- er to issue their See situations courts quences particular plea ("An are unclear or ly appeal Tex.R.App. P. 31.2 in a habeas duty private practi- of the uncertain. proceeding will be at the ... heard tioner in such cases is more limited. When time.”). practicable earliest straightforward the law is not succinct and ..., attorney do no a criminal defense need here, applicable Although a new rule than a noncitizen client that more advise (1) Teague exceptions falls within the if it: charges may carry pending criminal a risk places beyond kinds certain of conduct immigration consequences. But adverse authority law-making power of the criminal consequence truly when the (2) proscribe a watershed or constitutes clear, duty it was in this change implicating fair- rule the fundamental equally correct advice is clear. Minnesota, trial. See v. ness Danforth Id. 1029, 264, 274-75, 128 S.Ct. 552 U.S. noted, Teague, (citing 489 U.S. at L.Ed.2d 859 3. As States United 313, Chaidez, 1060). granted 109 S.Ct. has certiorari might rule “new” if it citizen is considered “breaks clients attach to remaining new States). Padilla, a new on the ground,” “imposes obligation the United 130 S.Ct. at Moreover, Government,” or was 1480-87.5 States the Federal not over- prior precedent turn existing not “dictated of the precedent Court. Hong, time the fi F.3d at defendant’s conviction became nal.” Teague, 489 U.S. at 109 S.Ct. this, Because several courts have con- omitted); 1060 (emphasis see also Graham cluded that the majority in Padilla did not Collins, 461, 467, v. 506 U.S. 113 S.Ct. rule,” announce a “new as defined by (1993). are L.Ed.2d 260 “Old rules” Teague, but was simply applying existing applicable on direct both and collateral precedent facts context Bockting, review. Whorton which the Supreme Court had 406, 416, 127 S.Ct. 167 L.Ed.2d See, not previously, explicitly spoken. e.g., Washington, (holding (“Padilla Orocio, Crawford F.3d at fol- 541 U.S. L.Ed.2d the clearly lowed from princi- established (2004), appli announced a new rule not ples guarantee of effective assis- proceeding cable because counsel.”); Tanklevskaya, tance of by precedent it was not dictated and was (discussing analyses S.W.3d at 93-94 with “flatly prior inconsistent govern courts); Johnson, see also Lewis v. ing precedent”). (3d Cir.2004) F.3d (explaining because Strickland test necessari- split authority

As the suggests, ly requires case-by-case examination of question ap- of whether Padilla be should circumstances, application of plied retroactively, pursuant Teague, is test should be deemed create a a very key close call. The in issue Padilla novel) “new truly rule” when it is was per- whether Padilla’s counsel had West, Wright v. (citing U.S. 505 deficiently formed as the assessed under L.Ed.2d prong of the Strickland Padil- test. J., (Kennedy, concurring judgment)). la, addressing 130 S.Ct. at 1482. In the itself, terminology In the Teague Padil- issue, majority grounded the Padilla its la did “break new or ground” “impose not firmly determination in past precedent, obligation a new the States the Fed- Richardson, particularly McMann Government,” by eral and was “dictated 759, 771, 90 S.Ct. 25 L.Ed.2d precedent existing at the defen- the time (1970), defen- progeny (holding dant’s conviction became final.” 489 U.S. dant the is entitled to effective assistance 301,109 S.Ct. 1060. of competent in deciding whether plead guilty); progeny Strickland and Many holding the courts Padilla (providing governing rules the ineffective apply retroactively rely heavily does not analysis); assistance of counsel and I.N.S. by Padilla upon the concurrence Justice 289, 323, Cyr, St. 533 U.S. 121 S.Ct. the by Alito and dissent Justice Scalia for interpretations majori- L.Ed.2d their Padilla (recognizing the See, Chaidez, the non- potentially paramount importance ty. e.g., F.3d at 689 majority practice guides). Additionally, 5. The downplayed Padilla further the merous the point- announcing by majority appeared anticipate being nature of the it was rule its rule years preceding applied retroactively pro- out that for at least 15 the in habeas opinion, professional analyzed infrequent imposed ceedings norms had an when it the use obligation provide proceedings challenge guilty on counsel to advice re- of collateral Padilla, garding deportation consequences pleas the under Strickland. S.Ct. at guilty plea. (citing nu- 130 S.Ct. 1485-86. 1227(a)(2)(B)(i), (“That § is the exact same members of Padilla Court U.S.C. ‘array provision Supreme indi- Court de- expressed such views’ mandatory” “presumptively Padilla was dictated scribed as cates that Hong, F.3d at 1154-56 Padilla. 130 S.Ct. at 1483. That statute precedent.”); (“We “Any any as follows: alien provides and dissent as who take the concurrence after been convicted of that reasonable time admission has support for our conclusion ... regulation rule a violation of law or jurists find prior foreign or a coun- compelled the Court’s dictated try to a ... precedent.”). relating Alito described controlled substance Justice 1227(a)(2)(B)(i). § majority depar- deportable.” in a “dramatic engaging as U.S.C. precedent,” ture from and Justice Scalia The Court further described “succinct, clear, majority’s provision explicit likewise decried extension defining consequence Pa- removal Pa- rights the Sixth Amendment. dilla, (Alito, J., at 1491 concur- dilla’s conviction.” S.Ct. at (Scalia, light clarity, at 1494-95 ring judgment); id. this J., dissenting). “agree[d] constitutionally with Padilla that competent counsel would have advised him However, as- light majority’s drug that his conviction for distribution surance that its decision dictated subject made him automatic deporta- precedent McMann, St. prior tion.” Id. at The Court further wiser is to Cyr, etc.—it seems the course clear, explained that when the law is not so ma- interpret majority opinion as the attorney “a criminal defense need do no jority For and the has instructed. more than advise a noncitizen client above, join those reasons stated pending charges may carry criminal a risk applied courts that have Padilla retroac- immigration consequences. of adverse tively. But when consequence clear, truly duty as it was in this Deficiency Performance equally correct advice clear.” Id. is satisfy prong To at 1483. Strickland, defendant, a or habeas Thus, criminal de- per “[a] must that applicant, show counsel’s deficient, i.e., deporta- fendant who faces almost certain formance was fell below tion is entitled to know more than that it objective standard of reasonableness. 687-88, possible guilty plea at that could lead to ap U.S. 2052. Both S.Ct. removal; he is to know it is in entitled pellant and former counsel stated certainty.” a virtual v. their affidavits counsel told Bonilla, (9th Cir.2011) 637 F.3d guilty plea posses to the cocaine (emphasis original); in Tanklevskaya, in charge sion could result Here, S.W.3d at 96. counsel undisputedly and to inform him possibility deporta- mentioned the deportation presumptively would make appellant, despite presump- mandatory. tively mandatory of the applicable nature brief, In its argues appel- State immigration provision. Consequently, was, fact, lant’s in pre- perform- Padilla mandates that counsel’s therefore, sumptively mandatory, and ance be deemed deficient. provide deficient advice appellant. immigration argues The federal statu- State effect tory provision statutory at in not as clear as the provision issue indicated, due to the dis established Supreme Court discretion decide whether immigration prosecute afforded to officials to when to ... cretion removal pro- selectively prosecute deportation ceedings”). cases. The memorandum lists and the State cites an internal Specifically, multiple prior references memoranda on topic, memorandum issued Director of same several of which preceded Enforcement, Immigration years. Custom as much as 34 Several discussing applicable various factors “to a of the preceded cited cases likewise Padil- discretionary Cardoso, 512; range broad enforcement la. See '216 F.3d Alvidres- decisions,” Reyes, Moreover, as well as several cases discuss 180 F.3d 199. the Pa- ing prosecutorial discretion dilla majority explicitly considered the Reno, prosecutorial matters. See role of Cardoso v. F.3d discretion in its analy- (5th Cir.2000); Alvidres-Reyes sis. 130 Consequently, (5th Reno, Cir.1999); 180 F.3d prosecutorial existence of discretion in im- 01-10-00685-CR, Golding, migration No. persuade State cases does not us to (Tex.App.-Hous WL *5 holdings Court’s 2011), May rehearing [1st Dist.] ton Padilla. We bound by remain the Su- withdrawn, granted, opinion preme precedent Court’s this matter. -, -, (Tex.App. WL d);

-Houston ref Mem [1st Dist.] Prejudice Morton, Director, orandum from John alone, Deficient how Enforcement, Immigration and Customs ever, does not demonstrate ineffective as Directors, Special All Field Office All sistance of counsel under Strickland. The (June Charge, All Agents Chief Counsel defendant or applicant also 2011) (“Subject: Exercising Prosecuto- must demonstrate prejudice showing Discretion with rial Consistent the Civil that, probability reasonable but for coun Immigration Enforcement Priorities of the errors, unprofessional sel’s the result of Detention, for the Agency Apprehension, the proceeding would have been different. Aliens”).6 Removal of 687-88, 694, 466 U.S. documents, however, None of these Specifically guilty plea con- S.Ct. context, the Supreme pronounce- applicant tradict Court’s defendant “must ments Padilla. The memorandum in show that a reasonable probability there is errors, provi- does not even mention the but for would not pleaded sion at issue in in the present guilty Padilla and have and would have insist 1227(a)(2)(B)®. Hill, § going case: U.S.C. More- ed on to trial.” over, as both the memorandum and Padilla court the S.Ct. 366. The further indicate, concept prose- emphasized cited cases obtain relief ... a the “to cutorial discretion in must the court that a petitioner matters convince See, nothing new. e.g., Alvidres-Reyes, plea bargain decision to the would (describing F.3d at 201 the United have been rational under the circum Attorney States having “long- General stances.” 130 1485.7 Further- S.Ct. prejudice prong types be The memorandum can viewed on the in these of cases as that http://www.jdsupra.com/post/ internet at: upon issue not been ruled had documentViewer.aspx?fid=f36c5a91-4913- Padilla; instead, the lower courts in the Court 4f5a-92el-3ab7ba72db4a. proceedings. remanded for further at 1487. however; court, 7. The Padilla did not other- provide guidance application wise on her making further note

more, gravity the We a should consider court trial did not need judge the ruling, as well as the of the deficient thus, she prejudice prong; surrounding guilty plea consider circumstances accepted rejected said to or cannot be have whether advice defen determining gen- appellant’s affidavit statements. impacted failed to receive received or dant Wheeler, 203 S.W.3d erally parte Moody, the decision. See (explaining (Tex.Crim.App.2006) (Tex.Crim.App.1999) 325-26 corpus in a prejudice appellate that an court (holding applicant established trial court’s factual testimony appeal and must defer to a applicant’s own based affidavits). counsel). Compare Tank based on findings even when plea that of his (holding appli at 97 levskaya, 361 S.W.3d At conclusion of the habeas testimony existing was alone sufficient judge cant’s stated “the hearing, were, fact, establish ivith Jackson met prejudice), professional norms (Tex.App.-Fort n. a advising [appellant] Mr. Medlin refd) (stating in dicta Worth may contest result plea no was to dem that affidavit alone insufficient your I’m denying ... So deportation.... prejudice). onstrate writ.”

Here, only marginally record is de- a purpose” The “sole alleged prejudice. veloped i*egarding the justice to the appeal “is do substantial in his affidavit that if his Appellant stated P. 31.2. parties.” Tex.R.App. Additional- him guilty plea told would counsel had if a case ly, are authorized to remand we likely, he deportation presumptively make necessary or proceedings further are pleaded guilty would not P. justice. Tex.R.App. the interests of going insisted on to trial. He have instead (1) developing area 43.3. Because this is in the United States said residence law, only marginally record very important to him was prejudice prong developed regarding important thing him in respect most clear- underlying Appellant case. did not ly prejudice prong, not rule on the testimony any specific evi- provide live appellant’s sole issue and remand sustain rationality regarding rejecting dence this case for determination plea bargain under the circumstances prejudice prong of court on the Strickland. solely on his (apparently relying stance (remanding at 1487 rejected be- prejudice lower consideration impor- was of paramount cause residence prong). him). provide tance to The State did FROST, J., prejudice.8 dissenting. rebuttal evidence F., People Floyd No. presented any party in case advice. See 8. Neither 94K053487, WL any representation 35 Misc.3d made evidence or 13, (N.Y.Crim.Ct. Apr. whether was *9-10 trial court However, cases). 2012) (discussing subject immigration proceed- any pending since inquiry whether ings. majority is not a defendant In the vast of Padilla-related relevant far, consequences wheth- but corpus reported habeas cases thus has suffered adverse pleaded guilty, it subject ongoing deporta- er not have applicant he or she would ongo- appear proceedings. that the existence of tion or would not Here, necessary proceedings is a com- adverse the record silent on issue. ponent claim for an ineffective assistance Courts in New York have held Hill, 59, 474 U.S. at ongoing proceedings, a Padilla context. See absence of defendant prejudice due to deficient 106 S.Ct. could not establish FROST, Justice, parte KEM Ex 461, THOMPSON Mowbray, 943 S.W.2d dissenting. In (Tex.Crim.App.1996). an article 11.09 habeas such the case as under re- Presuming Kentucky, that Padilla view, the trial — court is sole finder of U.S.—, 1473, 130 S.Ct. 176 L.E.2d Garcia, fact. parte See Ex 353 S.W.3d (2010), applies to case under re (Tex.Crim.App.2011). Thus, view and that the presuming performance the familiar Guzman standard of review deficient, of appellant’s trial counsel was applies in appeals from court judg- the trial court abuse did not its discretion id.; ments in article 11.09 cases. See Guz- by impliedly finding appellant failed (Tex.Crim. man v. 955 S.W.2d prove he was his trial prejudiced App.1997). standard, Under this ap- performance. counsel’s deficient Because pellate court affords almost total deference there judg is no error in the trial court’s to the findings trial court’s fact when the ment, this may reverse the trial findings record, are supported espe- judgment court’s remand to ap and cially findings when those are based upon pellant prove a second chance to entitle credibility evaluation of and demeanor. ment to relief. corpus habeas This court Garcia, parte 353 S.W.3d at 787. should affirm judgment. the trial court’s when, review, Even case The trial court abuse did not its discre affidavit, all evidence is submitted by impliedly finding court of appeals must view the evidence in prove prejudiced by failed to he was the light most favorable the trial court’s performance. trial counsel’s deficient ruling presume trial court In reviewing the trial court’s decision to made all fact findings reasonable relief, grant deny habeas could against have been the losing made view light the facts in the most favorable Wheeler, party. parte See Ex 203 S.W.3d ruling to the trial uphold at 325-26. ruling absent an abuse of discretion. See Wheeler, Ex parte 203 S.W.3d two-part v. Washington Strickland A trial (Tex.Crim.App.2006). court abuses test challenges “guilty” pleas its discretion when acts it without refer- based on ineffective assistance of counsel. ence to rules or guiding principles or — Kentucky, -, See Padilla v. U.S. arbitrarily when it acts or unreasonably. -, 1480-82, 130 S.Ct. 176 L.E.2d parte See Ex Wolf, (2010); Washington, Strickland (Tex.App.-Houston [14th Dist.] 668, 687-94, 2052, 2064-68, U.S. 104 S.Ct. refd). A trial court abuses its discretion (1984). In L.E.2d 674 the trial court when its decision lies outside of the zone of below, appellant proving had the burden of reasonable disagreement. See id. by a preponderance of the evidence that his prevail To on a was defi- post-conviction writ of cient corpus, that there is a “reasonable applicant bears bur- sufficient proving, by probability” den of preponderance of the undermine —one evidence, the confidence in facts that would entitle him the result-that the outcome Richardson, to relief. Ex 70 S.W.3d would have been but for his different coun- performance. sel’s deficient at-, 1482; proceedings, “[v]irtually every fact (Tex. Chandler, finding credibility involves a determina- tion” and Crim.App.2005). Supreme “the fact finder is the exclusive The Court of judge credibility of the of the that witnesses.” United States has held counsel’s See at 1485 & n. 12. The Padilla court deportation is not cate- id. regarding

“advice ambit of the of type from the that “to obtain relief on this gorically removed stated right to counsel” and claim, Amendment petitioner Sixth must convince the court applies to a that the standard Strickland bargain that the plea a decision to regarding that advice claim counsel’s have been rational under the cir- Pa- deportation of was deficient. See risk Id. at 1485. cumstances.” at-, dilla, 1481- only evidence before the trial court The Court, According Supreme to the 82. ha- appellant’s request when it denied prevailing professional of weight “[t]he (1) immi- relief was the affidavit of an beas the view that counsel must supports norms (2) gration attorney, appel- the affidavit of regarding her client risk of advise appellant pleaded trial counsel when lant’s But, Id. extent deportation.” “guilty,” appellant. the affidavit of depends on the of of counsel’s advice terms The two contained no testi- affidavits “the the relevant statute. When terms mony prejudice relevant to Strickland’s immigration statute are the relevant suc- affidavit, prong. appellant’s In cinct, clear, explicit defining arguably prejudice statements relevant to conviction, consequence” removal following: are the is, consequence truly is “deportation clear,” duty to correct advice “Residence the United States concerning the risk of is me. In very important America Id. at On the “equally clear.” it important this was the most hand, law is not succinct and “[w]hen thing. ... a straightforward criminal defense at- guilty I been “If had told no than torney need do more advise possession to misdemeanor [sic] that pending noncitizen client criminal my deporta- controlled substance made charges may carry a of adverse immi- risk presumptively mandatory, I would gration consequences.” pur- Id. For the have pleaded guilty. not analysis opinion, in this it is poses correctly [appellant’s “If counsel] had (1) the presumed opinion me con- informed about the retroactively to case re- under I sequences my plea, would have

view, of appel- pleaded going and insisted on trial lant’s counsel was deficient because to trial.” appellant’s he did advise be “presumptively man- testimony the only above evidence datory” upon appellant’s conviction for the arguably prejudice that was relevant pleaded offense to which when trial court before court “guilty.” See id appellant’s request for habeas re denied lief. By denying request, Supreme Court did not impliedly appellant’s testi found change proving prejudice the standard for mony credibility. lacked but the Wheeler, 325-26; Clarke made proof several observations (Tex.App. id. prejudice. high at 1485. The ref’d); pet. it is Houston quite [14th Dist.] court noted that often difficult (Tex. 31, 42 parte Legrand, 291 S.W.3d person acknowledged for a who has ref’d). Strickland’s, App.-Houston [14th Dist.] guilt satisfy prejudice fact, free to “[sjurmounting As finder of the trial court was prong and Strick- testimony, even high easy appellant’s land’s bar is never an task.” disbelieve all testimony given by testimony if that affidavit lant’s trial that court did not err concluding parte appellant and was uncontroverted. See failed to Wheeler, prove 325-26; affirmatively prejudiced by he was at Ex parte 203 S.W.3d deficient 827, (TexApp.- 840-41 Al% plea McDougal, bargain); 2010 WL h.); Clarke, Austin no *3-4 (concluding at that defen trial reasonably S.W.3d 848. The court prove dant did not that a decision re to part appel could have disbelieved the ject the plea bargain have been would testimony provided lant’s affidavit that rational); Ali, 368 S.W.3d at that a only arguable proof decision to re (affirming 840^41 trial court’s denial of ject have been bargain would request for habeas relief under Padilla rational under See Ex the circumstances. theory because trial court did not abuse Wheeler, 325-26; S.W.3d its by appellant discretion finding Clarke, basis, 848. On this to prove prejudice); Thomas v. alone, the trial court did not abuse its (Tex.App.-Beaumont by denying discretion habeas relief. See filed) 2012, pet. (holding that trial court Wheeler, 325-26; Ex parte 203 S.W.3d at did finding not abuse its discretion Clarke, 305 S.W.3d at 848. appellant failed to that prove a decision addition, appellant’s statement reject bargain would have but deficient performance, for his counsel’s rational). Therefore, been this court have pleaded guilty” would “not and should affirm the trial court’s judgment. on going conclusory insisted to trial is Absent a conclusion that the trial court thus prove prejudice insufficient to finding erred in appellant that failed to Cain, Strickland. See Mallard F.3d prove prejudice, there is no for basis (5th Cir.2008); Johnson, Green v. reversing judgment the trial court’s (5th Cir.1998); 160 F.3d 1042-43 remanding appellant a second l:10cv24-HSO, McDougal, U.S. v. Nos. opportunity prove prejudice. 1:08cr91-HSO-RHW-5, 2010 WL majority does not conclude that the (S.D.Miss. 2010). at *3-4 Nov. trial impliedly finding court erred Appellant does not maintain his inno appellant prejudice. Nor prove did He presented cence. has not asserted or majority does the state that the affidavits plausible evidence that he had a de appellant submitted were sufficient him. against fense to indictment He Rather, the in- prove prejudice. majority presented has not evidence of circum appellant not prove preju- dicates that indicating rejecting prof stances dice and then reverses the trial court’s been plea bargain fered have ra judgment justice” “in interests of so tional. On this record and under can have a opportu- second reviewing deferential for the tri standard nity prove prejudice. p. See ante at appellant’s request al court’s ruling on majority 526. The Texas Rule of cites relief, for trial court did not 43.3, Appellate Procedure which states by impliedly finding abuse its discretion reversing judg- a trial “[w]hen prove failed to that a decision ment, the judgment the court must render plea bargain rendered, court should Butler, (a) been rational. See Czere v. except necessary when a remand is (5th Cir.1987) (b) (affirming F.2d further the interests of proceedings; relief, noting denial of habeas for another trial.” justice require remand rule required appel Tex.R.App. Significantly, was not to credit P. 43.3. And, to obligated App.2000). has this court appellate after an court applies judgment if that judgment uphold the trial court’s the trial court’s decided judgment supported by not record Id. This rule does should be reversed. theory appli reversing law a basis for was correct give appellate courts cable to the case. See Armendariz give nor it courts any judgment, does (Tex.Crim.App. judgment 123 S.W.3d power reverse an error-free 2003); Ross, This at 855-56. or for further 32 S.W.3d justice in the interests gave if trial court See Chrismon rule even the proceedings on remand. Brown, ruling. for its Armen (Tex.App.- wrong reason 246 S.W.3d Romero, dariz, 404; pet.). no 123 S.W.3d at Houston Dist.] [14th is a de- majority The states that “this Padilla, majority but Padil The also cites Though law.” this veloping area of the an proposition support la does not correct, no majority statement is cites appellate intermediate court can reverse allow this court authority denying re judgment an error-free trial judgment reverse error-free applicant lief and remand develop- court because the case involves a prove entitlement to re second chance the law.1 ing area of -, lief. See (reversing The on majority also concludes 1486-87 discretion first only upon ary upon trial court relief based review based error under denied addressing not appellant’s prong conclusion that trial counsel’s Strickland and not it was not on prong passed was not deficient and second because performance below). appellant reversing based a determination that court errs upon This Though the prove prejudice. judgment. had failed to trial court’s during trial the habeas hear court stated thought that it that the Conclusion deficient, appellant’s trial counsel was not abuse The trial court did not its discre- state that it denied court addition, by impliedly finding this fol solely

relief basis. that under the circum- signed prove lowing hearing the trial court case a underlying stances in the decision judgment denying generally, and this relief been plea bargain first would have judgment was not limited to the context, the rational. There is no error in the trial In this prong Strickland. this judgment, court should impliedly appel trial court concluded that so, it I re- affirm. Because does do prove lant did not entitlement to relief spectfully dissent. prong under either the the second prong See Ex Wheel Strickland. 325-26;

er, Le- trial

grand, 291 S.W.3d at 42. Because the fact, findings to file

court failed presume the trial court must implicit findings support

made of fact that judgment.

the trial court’s State v.

Ross, (Tex.Crim. application writ of filed Court of fore eight corpus in the court. decided Padilla more than months be-

Case Details

Case Name: Leonardo Aguilar v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 10, 2012

Citation: 375 S.W.3d 518

Docket Number: 14-11-00227-CR

Court Abbreviation: Tex. App.