Case Information
*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 10/20/2015 11:26:05 AM VIVIAN LONG CLERK *1 ACCEPTED 07-15-00224-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 10/20/2015 11:26:05 AM Vivian Long, Clerk
ORAL ARGUMENT WAIVED IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
NO. 07-15-00224-CR EFRAIN LEDEZMA MARTINEZ Appellant,
V. THE STATE OF TEXAS Appellee.
________________________________________ APPEAL FROM THE 69 TH DISTRICT COURT MOORE COUNTY, TEXAS ______________________________________ BRIEF FOR THE STATE OF TEXAS ______________________________________ DAVID GREEN 69 TH DISTRICT ATTORNEY LARRY FADLER SBN 24080125 ASSISTANT DISTRICT ATTORNEY 715 Dumas Ave., Room #304 69thada@moore-tx.com Dumas, Texas 79029 Phone: (806)935-5654 Fax: (806)468-5566 ATTORNEY FOR THE STATE *2 TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………………………………………………………………………………………iii
STATEMENT OF THE CASE………………………………………………………………………………………………………………...2
STATE’S COUNTERPOINTS
COUNTERPOINT NO. 1
The Trial Court was correct when it denied the Appellant’s Application for Writ of Habeas Corpus
because Appellant failed to meet either prong of the Strickland Test.
COUNTERPOINT NO. 2
Appellant was aware of the immigration consequences of his plea, the trial court’s failure to orally
admonish Appellant resulted in harmless error.
Table of Authorities
Chaidez v. United States,
568 U.S. __, 133 S. Ct. 1103, 1110 (2013)……………………………………………..9,10,11,12
Danforth v. Minnesota,
552 U.S. 264 (2008)……………………………………………………………………………..10
Ex parte De Los Reyes,
392 S.W.3d 675 (Tex. Crim. App. 2013)……………………………………………………..10,11
Ex parte Fassi,
388 S.W.3d 881, 886
(Tex. App.—Houston [14th Dist.] 2012, no pet.)…………………………………………….10,11
Ex parte Luna,
401 S.W.3d 329, 334
(Tex. App.—Houston [14th Dist.] 2013, no pet.)………………………………………………..11
Ex Parte Moreno, 382 S.W.3d at 528-29.
(Tex. App.—Fort Worth 2012, pet. ref’d)……………………………………………………….13
Ex Parte Morrow, 952 S.W.2d 530
(Tex. Crim. App. 1997)…………………………………………………………………..……8,12
Ex Parte Murillo, 389 S.W.3d 922
(Tex. App.—Houston [1st Dist.] 2013, no pet.)……………………………………….10,13,14,16
Ex parte Obi, 446 S.W.3d 590, 596-601
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)………………………………………………16
Ex parte Sudhakar, 406 S.W.3d 699, 701-02
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)……………………………………………..12
Ex parte Tanklevskaya, 361 S.W.3d 86
(Tex. App.—Houston [1st Dist.] 2011)………………………………………………………….12
Ex parte Wongjaroen, 2008 WL 4809494
(Tex. App. Houston 14th Dist. Nov. 6, 2008)…………………………………………………….9
Padilla v. Kentucky, 559 U.S. 356 (2010)……………………………………………………..9,10
Rodriguez v. State, 425 S.W.3d 655
(Tex. App. Houston 14th Dist. 2014)……………………………………………………………18
State v. Guerrero, 400 S.W.3d 576, 588
(Tex. Crim. App. 2013)…………………………………………………………………………..11
Strickland v. Washington, 466 U.S. 668 (1984)…………………………………………………..8
Teague v. Lane, 489 U.S. 288, 301-07 (1989)………………………………………………..10,11
STATUES
8 U.S.C. § 1101(a)(48)(A)………………………………………………………………………11
TEX . PENAL CODE ANN . § 12.22…………………………………………………………..15
IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
NO. 07-15-00224-CR EFRAIN LEDEZMA MARTINEZ Appellant,
V. THE STATE OF TEXAS Appellee.
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS in the above-styled and numbered cause and files this the State’s brief in response to the brief of Appellant, EFRAIN LEDEZMA
MARTINEZ. Appellant plead guilty to the felony offense of Possession of a Controlled
Substance, Penalty Group 1 in the amount of more than a gram, less than four grams. The
Honorable Judge Ron Enns of the 69 th District Court, Moore County, Texas, presiding judge.
STATEMENT OF FACTS On February 12, 2001, Appellant was charged by indictment with the felony offense of possession of a controlled substance, penalty group 1, in the amount of more than one (1) gram
but less than four (4) grams, namely cocaine. (C.R. 1:59) This offense occurred on August 14,
2000. (C.R. 1:59) Appellant entered a guilty plea to the above offense on February 26, 2001
and received a deferred adjudication sentence of seven years. (C.R. 1:47) Prior to the plea
hearing, Appellant, with the aid of an interpreter, signed plea documents waiving many of his
rights. (C.R. 1:9-15) In those signed plea papers contained admonitions on potential
consequences of a non U.S. citizen entering a plea, specifically; “I understand that if I am not a
citizen of the United States that my plea may result in deportation, exclusion of admission to the
country, or denial of naturalization under federal law.” (C.R. 1:11)
During the plea hearing Appellant was called to the witness stand by Appellant’s counsel Jerrod Pingleton. (C.R. 1:70) Appellant was aided in the hearing with an interpreter and was
sworn in under oath as a witness. (C.R. 1:70, 71) The court asked of Appellant if he had had the
opportunity to go over the entire document with an interpreter and if he understood all the
documents before him? (C.R. 1:67) The Appellant replied yes to both of these questions from
the court. (C.R. 1:72) Furthermore, the Appellant stated that he had understood the
consequences of his plea. (C.R. 1:72) While questioning the Appellant, Appellant’s counsel
asked of Appellant, “and you also understand that a result – that a plea of guilty may result in
deportation from the United States?” (C.R. 1:72) To which Appellant replied “Yes.” (C.R. 1:72)
Appellant Counsel then followed that question with, “Exclusion from this country?” (C.R. 1:72)
To which Appellant again replied, “Yes.” (C.R. 1:72) Appellant Counsel then asked as a follow
up question “or denial of your naturalization under federal law?” (C.R. 1:72) To which Appellant
replied “Yes.” (C.R. 1:72) Appellant’s counsel finally asked of Appellant, if there was anything
that he did not understand and if he had any questions, Appellant stated that he understood what
was going on and that he did not have any questions. (C.R. 1:71) At this time Appellant was
passed for cross examination by District Attorney David Green, Mr. Green asked of Appellant if
he had been over the indictment with his attorney and if everything in that indictment was true
and correct, both questions Appellant responded yes. (C.R. 1:73) On June 19, 2001 the 69 th
District Attorney (Moore County) filed a Motion Requesting Court to Adjudicate and Make
Final Disposition, a Capias was issued for Appellant’s arrest contemporaneously. (C.R. 1:16, 17)
Appellant subsequently filed his Motion to Dismiss and Plea in Bar, which motion was granted
on July 25, 2011, dismissing the Case. (R.R. 1:7) On July 27, 2011, the Honorable Judge Enns
signed an Order Discharging Defendant from Community Supervision Deferred Adjudication.
(C.R. 1:36) On March 5, 2015 Appellant filed a Writ of Habeas Corpus. (C.R. 1:38) The Writ
was set for hearing on April 20, 2015. After hearing argument and receiving case law from both
the petitioner and the respondent, the Writ was denied. (C.R. 1:97) Appellant filed his Notice of
Appeal on June 4, 2015.
All references to the indictment, official motions, plea papers, etc. are contained on the Clerk’s Record, Volume 1. The State shall refer to this as “C.R. 1.” All references to relevant
testimony are contained in the official Reporter’s Record, numbered Volumes 1 and 2. The State
shall refer to these “R.R. 1” and “R.R. 2.”
ISSUES PRESENTED
ISSUE NUMBER ONE
The Trial Court was correct when it denied the Appellant’s Application for Writ of Habeas
Corpus because Appellant failed to meet either prong of the Strickland Test.
A. Appellant failed to establish that Pingelton was ineffective under the first prong of Strickland because Padilla does not apply retroactively to appellant’s case.
The standard of review for evaluating claims of ineffective assistance of counsel is that Applicant must show (1) counsel’s performance was so deficient that he was not functioning as
acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but
for counsel’s error or omission, the result of the proceedings would have been different, i.e.,
sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 687-
96, 104 S.Ct. 2052, 2064-69, 80 L.Ed.2d 674 (1984). Generally, defense counsel has no
obligation under the Sixth Amendment’s guarantee of effective assistance of counsel to advise a
defendant of the collateral consequences of the defendant’s plea. See Morrow , 952 S.W.2d at
536 (holding that the Sixth Amendment assurance of effective assistance of counsel does not
extend to advice regarding collateral, indefinite consequences of a plea, such as deprivation of
the rights to vote and travel abroad, possible undesirable discharge from the armed forces, etc.).
Though deportation and other adverse immigration effects had historically been included in the
list of collateral consequences to which Strickland’s test for proficiency of counsel under the
Sixth Amendment did not apply, the Supreme Court held in Padilla that, because such effects
had a “close connection to the criminal process” and could not be easily classified as either
collateral or direct, “advice regarding deportation is not categorically removed from the ambit of
the Sixth Amendment right to counsel.” Padilla , 559 U.S. at 365-66. Thus, under Padilla a
“lawyer’s advice (or non-advice) about a plea’s deportation risk” is not exempt from Sixth
Amendment scrutiny, and Strickland applies to claims of ineffective assistance of counsel based
on such grounds. Chaidez , 133 S. Ct. at 1110 (citing Padilla , 559 U.S. at 366). See Chaidez v.
United States , 568 U.S. __, 133 S. Ct. 1103, 1110 (2013) (observing that “lower courts…almost
uniformly insisted on what Padilla called the ‘categorical removal’ of advice about a
conviction’s non-criminal consequences—including deportation—from the Sixth Amendment’s
scope.”) (citing Padilla , 559 U.S. at 357); Ex parte Tanklevskaya , 361 S.W.3d 86, 92 (Tex.
App.—Houston [1st Dist.] 2011) (noting that, prior to Padilla , “historically, courts had
considered deportation to be a ‘collateral consequence’ of a guilty plea” which was outside the
realm of effective assistance of counsel), pet. granted, judgm’t vacated w.r.m., 393 S.W.3d 787
(Tex. Crim. App. 2013); Ex parte Wongjaroen , No. 14-07-00593-CR, 2008 WL 4809494 at *4
(Tex. App.—Houston [14th Dist.] Nov. 6, 2008, pet. ref’d) (mem. op., not designated for
publication) (showing that, prior to Padilla , this Court held that “defense counsel’s alleged
failure to advise [the defendant] about such a collateral consequence as the impact of her guilty
plea on her immigration status does not rise to the level of ineffective assistance of counsel.”).
The Padilla Court then explained that the nature of the advice which a defense attorney must provide regarding adverse immigration consequences depends upon the certainty of those
results. Padilla , 559 U.S. at 368-69. Given the complexities and fluctuating nature of
immigration law, “when the law is not succinct and straightforward,… criminal defense attorney
need do no more than advise a noncitizen client that pending criminal charges may carry a risk of
adverse immigration consequences.” Padilla , 559 U.S. at 369; Ali, 368 S.W.3d at 834. But,
when “the terms of the relevant immigration statute are succinct, clear, and explicit in defining
the removal consequence” for a defendant’s conviction, defense counsel has an affirmative duty
to advise the defendant that those removal consequences will be presumptively mandatory
following the defendant’s plea. Padilla , 559 U.S. at 368-69; Murillo, 389 S.W.3d at 926 (“Plea
counsel performs deficiently if he ‘merely mentions the possibility of deportation when the
relevant immigration provisions are presumptively mandatory.’”) (quoting Ex parte Fassi , 388
S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no pet.)). In Chaidez v. United States ,
568 U.S.__, 133 S. Ct. 1103 (2013). The Court stated that “ Padilla’s holding that the failure to
advise about a non-criminal consequence could violate the Sixth Amendment would not have
been—in fact was not—apparent to all reasonable jurists’ prior to Padilla , and was not dictated
by precedent in place at the time of that decision. Chaidez , 133 S. Ct. at 1111. Accordingly, the
Chaidez Court concluded that Padilla was not merely an application of the governing principle
to a different set of facts; rather, Padilla announced a “new rule” of criminal procedure and, thus,
does not apply retroactively to cases which were already final when Padilla was decided.
Chaidez , 133 S. Ct. at 1111-13; see Teague v. Lane , 489 U.S. 288, 301-07 (1989) (holding that
the Supreme Court’s criminal procedure decisions do not apply retroactively when they
“announce a new rule…break new ground,…impose a new obligation” on the government, or
comprise “merely an application of the principle that governed” a previous decision to an
alternative set of facts). In Ex parte De Los Reyes , 392 S.W.3d 675 (Tex. Crim. App. 2013), the
Texas Court of Criminal Appeals acknowledged that it could accord retroactive effect to Padilla
as a matter of state habeas corpus law, notwithstanding the Supreme Court’s holding in Chaidez.
De Los Reyes , 392 S.W.3d at 679 (citing Danforth v. Minnesota, 552 U.S. 264 (2008) (holding
that Teague does not “constrain the authority of state courts to give broader effect to new rules of
criminal procedure than is required by that opinion.”). However, the Court of Criminal Appeals
specifically declined to do so, opting instead to “adhere to the retroactivity analysis in Chaidez
and its holding that Padilla does not apply retroactively.” De Los Reyes , 392 S.W.3d at 679.
Appellant’s argument throughout his brief that Padilla applies simply because the Appellant’s case had not been adjudicated after receiving deferred adjudication is incorrect.
There isn’t a dispute that Appellant’s order of deferred adjudication, while not a final conviction
under Texas State law, became a final conviction for the purposes of federal immigration and
Padilla when the trial court entered it on February 26, 2001. State V. Guerrero , 400 S.W.3d 576,
588 (Tex. Crim. App. 2013; see U.S.C. §1101 (a)(48)(A) (“Conviction means, with respect to an
alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt is
withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the
judge has ordered some form of punishment penalty, or restraint on the alien’s liberty to be
imposed.”)
Accordingly, under both federal and Texas law, when a defendant’s conviction became final before March 31, 2010—the date that Padilla was decided—the defendant “may not benefit
in a habeas or similar proceeding,” and any collateral challenge to the conviction which is
premised solely upon the principles expressed in Padilla must fail. See Chaidez , 133 S. Ct. at
1105-07 (holding that, because “ Padilla does not have retroactive effect,” Chaidez ’s Padilla -
based claim of ineffective assistance of counsel failed because her conviction became final in
2004—over five years prior to Padilla ); De Los Reyes , 392 S.W.3d at 679 (concluding that the
defendant could not benefit from the holding of Padilla because the defendant’s conviction
became final in 2001, prior to the new rule announced in Padilla ); Ex parte Luna , 401 S.W.3d
329, 334 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (affirming that Padilla does not apply
retroactively to cases that became final before Padilla was decided, and concluding that the trial
court properly denied the defendant’s Padilla -based claim on ineffective assistance of counsel
when the defendant’s conviction was finalized before Padilla issued); Ex parte Sudhakar , 406
S.W.3d 699, 701-02 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
Due to the prevailing professional norms prior to Padilla required defense counsel to *13 advise a client about only the direct consequences of the client’s plea, Pingelton had no
affirmative duty at the time of appellant’s guilty plea in 2001 to advise appellant of the collateral
consequence that appellant’s plea and deferred adjudication community supervision would
constitute a conviction for purposes of federal immigration law. See Chaidez , 133 S. Ct. at 1110
(recognizing that, before Padilla , “lower courts…almost universally” held that the Sixth
Amendment did not require defense attorneys to advise defendants about non-criminal
consequences of a plea, such as deportation or inadmissibility); Morrow , 952 S.W.2d at 536
(holding that, pre- Padilla , the Sixth Amendment guarantee of effective assistance of counsel did
not extend to advice regarding collateral consequences of a plea, such as deportation); Ex parte
Tanklevskaya , 361 S.W.3d 86, 92 (Tex. App.—Houston [1st Dist.] 2011) (noting that, prior to
Padilla . Even though Pingelton did not have an affirmative duty, at the time of Appellant’s
guilty to plea, to advise about the collateral consequences of federal immigration law, he went
above the call of the law. Pingelton, advised his client on the record that this plea could result in
his deportation from the United States. Appellant entered the plea knowing the consequences of
the plea. Appellant suffered what Pingelton referred to in his affidavit from “buyer’s remorse.”
B. Appellant did not establish that Pingelton’s allegedly-deficient performance prejudiced
appellant under the second prong of Strickland
Even if appellant could make a case that Pingelton’s performance was Ineffective under *14 pre- Padilla law, the trial court’s ruling to deny appellant’s requested writ relief was appropriate
because appellant failed to establish prejudice under the second prong of Strickland; that is,
appellant failed to show a reasonable probability that but for Pingelton’s performance, appellant
would have rejected the State’s plea offer and insisted on going to trial, instead, and that such a
decision would have been rational under the circumstances.
To support appellant’s claim of prejudice, appellant offered only his own affidavit, wherein he claimed that “he would not have accepted the offer if he knew the immigration
consequences and that there was an illegal search that he was never informed of prior to the
plea” (C.R. 1:54). The habeas court is free to disbelieve appellant’s self-serving testimony that
he would not have pled guilty if he had been aware of the immigration consequences of his plea.
Moreno , 382 S.W.3d at 528-29. Apart from the trial court’s implied credibility determination,
appellant’s claim fails because examination of the circumstances surrounding appellant’s plea
demonstrates that it would not have been rational for appellant to have rejected the State’s plea
offer and insisted on taking his case to trial, instead. See generally Murillo , 389 S.W.3d at 928-
31 (evaluating whether it would have been rational for the defendant to have risked trial instead
of taking a plea deal based on the evidence of the defendant’s guilt; whether the defendant had
any factual or legal defenses to the charge; whether the defendant’s immigration status was his
primary concern, as opposed to avoiding jail or prison; and the benefits of the plea bargain
compared to the immigration and criminal penalties risked at trial).
First, although there is little in the record directly establishing the strength of the State’s case against appellant, appellant claims to have a defense based on an illegal search. There is no
evidence to support his claim and neither Appellant nor Appellant’s counsel provides anything
other than a generic claim to give this accusation any validity. See Murillo , 389 S.W.3d at 929
(finding against the defendant on the issue of prejudice when, among other considerations, “[the
defendant] presented no affirmative evidence that he had any factual or legal defenses to the
charge, or that he believes he was not guilty [of the offense charged].”).
Second, appellant failed to proffer any evidence that the immigration consequences of appellant’s guilty plea were appellant’s primary concern. In the defendant’s affidavit he states
that he believed that the offer that was presented was the least dangerous way to resolve the case
and he chose this option as the best way to avoid jail time. (C.R. 1:55). Furthermore, Pingelton
asked Appellant if he understood that his plea could result in his deportation and the Appellant
understood and stated “yes.” (C.R. 1:72) In addition, Pingelton’s affidavit claims, while he
cannot recall the specifics of the case that he was an experienced attorney at the time he
represented Appellant and would have been able to identify any potential search issues. (C.R. 1:
63). Given the likely scenario that there were not any legal defenses available to Appellant and
he is stating this to continue his own self-serving purposes and that he stated that he accepted the
plea that was the least dangerous, it is safe to assume that Appellant’s primary goal was to avoid
a prison sentence. The plea that Appellant entered into for deferred adjudication for a period of
seven years further supports the thought that this was the Appellant’s primary goal.
Third, appellant was not prejudiced by Pingelton’s representation because the benefits of appellant’s guilty plea far outweighed risks of conviction if appellant had opted to take his case
to trial. Appellant’s plea deal resulted in appellant being placed on deferred adjudication
community supervision for seven years with no term of incarceration as a condition of
community supervision, and with only a $1,500.00 fine assessed against him. (C.R.1:14)
Conversely, if appellant risked conviction at trial, that conviction would not only have produced
the same deportation consequences as appellant bears now, but appellant would also have faced
the more severe penal consequences of incarceration in jail for up to 10 years in Texas
Department of Criminal Justice, as well as a potential fine of up to $10,000.00. See generally
TEX . PENAL CODE ANN . § 12.22 (listing the punishment range for a third degree felony
offense). Given that there is no evidence that appellant had any viable defenses to the charged
offense, other than his vague claim without any support, the trial court could have reasonably
concluded that it is likely that appellant would have been convicted if he had opted for a trial
and, thus, that the State’s plea offer of deferred adjudication was a good deal when compared to
the risks attendant to that conviction—including the same adverse immigration consequences
that appellant claims resulted from his underlying guilty plea in this case. The totality of the
record and the circumstances surrounding appellant’s guilty plea, including assessment of the
above factors, indicates that there is no reasonable likelihood that a rational noncitizen-defendant
in appellant’s position would have chosen to risk probable defeat at trial, at which point the
defendant would face a harsher criminal penalty in addition to the same immigration
consequences of pleading guilty. Thus, the trial court could have rationally concluded that it
would not have been reasonable for appellant to have rejected the State’s plea offer and insisted
on a trial, even if appellant had been advised that his guilty plea and deferred adjudication
community supervision would constitute a conviction under federal immigration law as he
claims he should have been. See Ex parte Obi , 446 S.W.3d 590, 596-601 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d) (finding no prejudice, even without “overwhelming” evidence of the
defendant’s guilt, when the defendant raised a purported defense for the first time in the writ
proceeding, not before or while he pled guilty; when there was no evidence that the defendant
did or said anything to express that his immigration status was his paramount concern, despite
that he had received multiple admonishments about adverse immigration consequences by
defense counsel and the trial court; and when the risks of conviction at trial outweighed the
benefits of the plea deal); Murillo , 389 S.W.3d at 932 (finding no prejudice when the record
demonstrated that the State had a strong case against the defendant, the defendant failed to prove
any factual or legal defenses to the charge, and the defendant would have faced the same
immigration consequences if convicted at trial, in addition to a harsher criminal penalty); Fassi ,
388 S.W.3d at 888 (finding no prejudice where the record overwhelmingly established the
defendant’s guilt, the defendant faced harsher criminal penalties if convicted—which was highly
likely, that there was no evidence that any other plea deal was available to help the defendant
avoid the same removal consequences of pleading guilty); see also Ali , 368 S.W.3d at 840
(observing that overwhelming evidence of guilt meant that the defendant’s conviction was
“virtually certain,” and that by rejecting the plea deal, the defendant “would have risked the same
deportation consequences and, in addition, could have been sentenced to up to ten years in
TDCJ.”).
Accordingly, appellant failed to establish prejudice under the second prong of Strickland, and the trial court did not abuse its discretion by denying appellant’s application for a writ of
habeas corpus on that basis, as well. Appellant’s first point of error should be overruled.
Counterpoint #2 Trial court’s failure to orally admonish Appellant’s about the immigration
consequences of a guilty plea resulted in harmless error.
Appellant was aware of the immigration consequences of his plea, the trial court’s failure to orally admonish Appellant of the exact same admonishments Appellant’s trial court counsel
admonished Appellant of on the record resulted in harmless error.
CODE OF CRIMINAL PROCEDURE ARTICLE 23.16 Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the
defendant of the fact that if the defendant is not a citizen of the United States of America, a plea
of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from
admission to this country, or the denial of naturalization under federal law. TEX.CODE CRIM.
PROC. ANN. art. 23.16(a)(4). In admonishing the defendant as herein provided, substantial
compliance by the court is sufficient, unless the defendant affirmatively shows that he was
not aware of the consequences of his plea and that he was misled or harmed by the
admonishment of the court. TEX.CODE CRIM. PROC. ANN. art. 23.16(c).
STANDARD OF REVIEW A trial court's admonitions to and inquiries of a defendant prior to his plea of guilty serve to protect several constitutional rights. Anderson v. State, 182 S.W.3d 914, 917-18
(Tex.Crim.App.2006). They assure the court that the defendant's waiver of these rights in
entering a guilty plea comports with due process, that is, the waiver was made voluntarily and
with knowledge of the consequences of the plea. Article 26.13 is designed to provide these
constitutional assurances. Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App.1998). The
Article 26.13 admonitions, however, are not themselves constitutionally required. Id. When
conducting a non-constitutional harm analysis, an appellate court considers the entire record to
determine whether it has a fair assurance that appellant's decision to plead guilty would not have
changed if the trial court had admonished appellant about the adverse immigration consequences
that the plea could produce, in accordance with Tex. Code Crim. Proc. Ann. art. 26.13(a)(4). In
the "fair assurance" analysis, the appellate court considers the following three issues: (1)
appellant's citizenship and immigration status; (2) whether appellant knew the consequences of
his plea; and (3) the strength of the evidence of appellant's guilt. Rodriguez v. State, 425 S.W.3d
655, 664 (Tex. App. Houston 14th Dist. 2014) To warrant reversal, the record must support an
inference that the defendant did not know the consequences of his plea. Burnett v. State , 88
S.W.3d at 638 (Tex. Crim. App. 2002).
It is agreed by both Appellant and Appellee that Appellant is not a citizen of the United States and is in this country illegally. There is also no argument from the state the State that that
the trial court judge did not orally admonish Appellant of the immigration consequences of his
plea. However, such oral admonishments were unnecessary; Appellant’s trial court counsel
called Appellant to the witness stand, with use of an interpreter, admonished Appellant of the
immigration risks of his plea. (CR 1:72) Appellant’s counsel asked not one but three questions
regarding Appellant’s understanding of the immigration consequences of his plea; this level of
admonishment goes above and beyond level of substantial compliance that the trial court would
be required to meet when admonishing Appellant. It was unnecessary for the trial court to repeat
to Appellant the exact same or substantially similar questions that Appellant’s trial court counsel
already asked of Appellant concerning his immigration status and the effects of this plea on his
immigration status. Furthermore, with the aid of his interpreter, Appellant signed the necessary
plea papers prior to the plea hearing, such plea papers were then notarized. These plea papers
state plainly, “I understand that if I am not a citizen of the United States that my plea may result
in deportation, exclusion of admission to the country, or denial of naturalization under federal
law.” (C.R. 1:11) Appellant could not be more advised of the immigration consequences of his
plea than what he was.
Evidence of Appellant’s guilt:
With this being a plea and being limited to the court’s record it is difficult lay out all the available evidence of Appellant’s guilt. Appellant plead guilty to cause number 3065 on
February 26, 2001. (R.R. 1:14) When taken on cross examination during Appellant’s plea
hearing, Appellant was asked if he had been over the indictment with his attorney and if
everything in that indictment was true and correct, both questions the Appellant responded yes.
(C.R. 1:73) In Appellant’s affidavit concerning his feelings that he was not advised of the
immigration consequences of his plea, Appellant never stated that he was not guilty of this
crime. (R.R. 1:53-55) Lastly, Appellant was asked if there was anything that he did not
understand and if he had any questions, the Appellant stated that he understood what was going
on and that he did not have any questions. (C.R. 1:71) With the limited record that is available,
which is typical for the plea of guilty that took place, Appellant establishes fully that he is guilty
of this crime. At no point is there any evidence Appellant did not commit this crime. Only after
deportation proceedings began did Appellant have any reservations about his original plea of
guilty.
CONCLUSION AND PRAYER For the foregoing reasons, the State respectfully submits that this trial court properly denied Appellant’s application for Writ of Habeas Corpus because Appellant failed to satisfy
either prong of the Strickland Test for ineffective assistance of counsel and the court met all
guidelines for admonishments for Appellant. Thus the State respectfully prays that this Court
will overrule Appellant’s two points of error, and will affirm the trial court’s ruling to deny
Appellant’s requested writ relief.
Respectfully Submitted, DAVID M. GREEN 69 TH DISTRICT ATTORNEY MOORE COUNTY, TEXAS /S/ Larry Fadler_________________ LARRY FADLER SBN 24080125 ASSISTANT DISTRICT ATTORNEY 69 TH DISTRICT ATTORNEY’S OFFICE 715 Dumas Ave., RM #304 Dumas, Texas 79015 (806)935-5654 (806)934-2155(fax) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing State’s Brief was served upon James Wooldrige, Attorney for Appellant (Efrain Martinez), via electronic mail to James
Wooldridge j.e.wooldridge@att.net, on this the 20 th day of October, 2015.
*22 /S/ Larry Fadler __________________ Larry Fadler CERTIFICATE OF COMPLIANCE I certify that, according to the word count feature on Microsoft Word program, this document contains 4,975 words.
/S/ Larry Fadler __________________ Larry Fadler