Ex Parte Jose Eduardo Torres

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00169-CR

Ex parte Jose Eduardo Torres

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2013-127, HONORABLE BRUCE R. BOYER, JUDGE PRESIDING

MEMORANDUM OPINION

Jose Eduardo Torres appeals from the habeas court’s order denying his application

for a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.072. See

Tex. Code Crim. Proc. art. 11.072. Torres contends that the habeas court erred by finding that he

was not prejudiced by his counsel’s allegedly deficient performance in failing to advise him of the

clear immigration consequences of pleading guilty to the offense of delivery of marijuana for

remuneration, in an amount less than four ounces, in a drug free zone, a state jail felony. See Tex.

Health & Safety Code §§ 481.120, .134(e). We hold that the court did not abuse its discretion in

denying Torres’s habeas application.

BACKGROUND

According to the offense report contained in the record, on April 21, 2011, Deputy

David Miller and Deputy Danny Dufur were contacted by Smithson Valley High School assistant

principal Corbee Wunderlich, who requested their assistance in the senior cafeteria. While on their

way to the cafeteria, the officers saw Torres, a Smithson Valley High School student, running down
one of the hallways in the school. When they arrived at the cafeteria, Wunderlich told the officers

that he had just witnessed the exchange of cash for marijuana between Torres and another student.

Wunderlich stated that he saw Torres give the student a bag of what he believed to be marijuana and

the student give Torres some cash in return. Wunderlich told the officers that when he approached

Torres and the other student they “became evasive and very nervous.” Torres ran away from

Wunderlich, and the other student would not show Wunderlich what was in his hand. The other

student then walked past a trash can and threw away a plastic baggie, which Wunderlich believed

contained marijuana. According to Wunderlich, Adriana Trevino, a Smithson Valley High School

teacher, also witnessed the other student throwing the baggie into the trash can.

Deputy Miller looked in the trash can and saw a small plastic baggie containing a

green leafy substance that he believed, based on his training and experience, to be marijuana. He

retrieved the baggie and later placed it in an evidence bag and secured it in an evidence locker.

Laboratory testing later revealed that the baggie contained 0.09 ounces of marijuana. According to

Deputy Miller, he observed the other student “swaying back and forth” and exhibiting body language

he believed indicated that the other student might flee the scene. Deputy Miller and Deputy Dufur

took the other student into custody while Wunderlich went to look for Torres. Deputy Miller then

joined Wunderlich in searching for Torres. Wunderlich located Torres in another school hallway,

and Deputy Miller took him into custody. Deputy Miller gave Torres his Miranda warnings and

began preparing paperwork related to the process of booking Torres. Deputy Miller searched the

other student’s backpack and found green residue that he believed, again based on his training and

experience, to be marijuana residue. He also found a homemade smoking pipe and a lighter in the

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backpack. Deputy Miller and Deputy Dufur then transported Torres and the other student to the

Comal County jail.

Once at the jail, Deputy Miller asked the other student if he wanted to talk, and the

student said he did. Deputy Miller and Deputy Dufur gave the other student his Miranda warnings

and began asking him questions. According to Deputy Miller, the other student stated that he had

given Torres $20 and received an unidentified amount of change in return, along with the baggie.

The other student stated that he was nervous when approached by Wunderlich, and admitted that he

discarded the baggie in the trash can. He also stated that the homemade pipe was his and that it had

been given to him by another student to smoke marijuana he purchased from Torres. Ultimately, the

other student was booked into jail for possession of less than 2 ounces of marijuana, and Torres was

booked into jail for delivery of marijuana to a minor.

The record also contains Trevino’s voluntary written statement. According to her

statement, Trevino was on her way to the office to meet with a parent when she walked past several

students and heard Wunderlich call a student to him. This caught her attention and as she turned

to look that way, she saw a student walk to a trash can and throw a plastic bag or baggie into the

trash can. The student was the other student arrested with Torres. She recognized him because he

had been her student during the previous school year. Wunderlich also gave a voluntary written

statement in which he described having seen Torres and the other student exchange money for

marijuana. As he approached them they became evasive, but he was able to detain the other student.

Wunderlich stated that the other student would not show him what was in his hand, and then

threw a baggie into a trash can. According to Wunderlich, Trevino also saw the baggie in the trash.

Wunderlich then went to get Torres, and once they found Torres, Deputy Miller took him into custody.

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 Based on the events described above, Torres, who is not a United States citizen, was

charged with delivery of marijuana in a drug-free zone. On September 10, 2013, Torres appeared

in court with his attorney, Kimbel Brown, and pleaded guilty to the charged offense. At the plea

hearing the following colloquy took place:

Court: It’s a state jail felony. It’s punishable from 180 days to two years in a
state jail facility and/or you could be assessed a fine of up to $10,000.

Torres: Yes, sir.

Court: Okay. You also need to understand—and I know that Mr. Brown has
talked to you about this, but you need to understand , if you’re found
guilty of this particular charge, you would be susceptible to being
deported and returned to your native land. Do you understand that as
well?

Torres: Yes. Yes, sir.

Court: Do you understand, then, the consequences of entering a plea in this
case?

Torres: Yes, sir.

••••
Court: Now, if I do admit—you need to understand, sir, that if I do admit
State’s Exhibit Number 1 into evidence, you’ll be making a judicial
confession to the charges that have been brought against you. You
understand that?

Torres: Yes, sir.

Court: And you also understand, sir, once again, that in making that
confession, if I were to find you guilty and you were convicted, that
you would be susceptible to being, once again, deported back to your
native country—

Torres: Yes, sir.

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 Court: —country of origin? Do you understand that?

Torres: Yes, sir.

••••
Counsel: Your Honor, I would like to state on the record that I did talk to Daniel
McCarthy, an immigration attorney, and another attorney that Mr. Torres
also talked to that indicated because of the language in the complaint that
says possession—possession with intent to deliver with—by actual or
construction—constructive delivery would make it—this is a deportable
offense. And, unfortunately, the State was not willing to go down to a Class
B misdemeanor to avoid the immigration consequences.

Court: Mr. Torres, did you talk to an immigration attorney?

Torres: Yes, sir. I did.

Court: Did they make you aware of the—once again, of the circumstances of
your case and the possible ramifications of it?

Torres: Yes, sir.

Court: Okay. But you are still entering your plea? Is that correct?

Torres: Yes, sir.

The trial court then accepted Torres’s plea of guilty and placed him on four years’ deferred adjudication

community supervision with 200 hours of community service and $140 in restitution. As a result

of his plea, Torres was then taken into custody by agents of the United States Department of

Immigration and Customs Enforcement (ICE).

Torres filed an application for a writ of habeas corpus pursuant to Texas Code of

Criminal Procedure article 11.072. In the application, Torres asserted that his guilty plea was

involuntary due to the ineffective assistance of counsel. Specifically, Torres maintained that his

counsel’s performance was deficient because he did not adequately advise Torres of the clear

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immigration consequences of his guilty plea in violation of Padilla v. Kentucky, 559 U.S. 356 (2010).

In Padilla, the Supreme Court held that counsel’s advice regarding deportation “is not categorically

removed from the ambit of the Sixth Amendment right to counsel,” and that “Strickland applies” to

a claim that counsel’s advice regarding the risk of deportation was deficient. 559 U.S. at 366. Thus,

a noncitizen who pleads guilty to a deportable offense may seek post-conviction relief on the ground

that the plea was involuntary because counsel did not provide effective assistance by informing him

of the immigration consequences of that plea. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim.

App. 1980) (guilty plea is not voluntary if made as result of ineffective assistance of counsel).

In support of his application, Torres submitted the affidavit of his trial counsel,

Kimbel Brown. Brown averred that approximately one month before Torres was set to plead to the

charged offense, he learned that Torres was not a United States citizen, but a lawful permanent

resident. Brown stated that he advised Torres to confer with an immigration attorney and that he,

too, spoke to an immigration attorney to “get analysis” of the potential consequences of a conviction

on Torres’s legal status. Brown averred that he made “every attempt” to get the Comal County

District Attorney to agree to a plea of simple possession of marijuana, which he believed would have

“protected Torres under 4A11 of the Federal Sentencing Guidelines.” Brown stated that he learned

from immigration counsel that a conviction of the charged offense would make Torres “deportable,”

but that he was unaware that Torres would be ineligible for any type of discretionary relief from the

deportation proceedings. Brown stated that, as a result, he did not advise Torres that he would be

subject to deportation without discretionary relief and that he would automatically be placed in

removal proceedings. Brown stated that he advised Torres that he “may or may not be deported,

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and that ICE may not seek to deport him because of the small amount of marijuana involved.”

According to Brown’s affidavit, he further advised Torres to seek additional immigration advice

after entering his plea in order to apply for status under the “DREAM Act.” Brown averred that he

later learned that this advice was incorrect and that the consequence of Torres’s pleading guilty to

the charged offense was deportation.

Torres also submitted his own affidavit in which he averred that, before pleading

guilty, he told Brown that he was a lawful permanent resident, not a United States citizen. According

to Torres, he knew that Brown had conferred with an immigration attorney. Torres stated that Brown

told him he “may be deportable.” Brown further told Torres that he “may or may not be deported

by ICE” because of the small amount of marijuana involved. Torres stated that Brown told him that

if he did not get in any more trouble, ICE would not come looking for him, and that Brown never

told him that he was “deportable without the ability to receive discretionary relief, and that [his]

deportation was certain.” Torres said that Brown also advised him to speak to an immigration

attorney after pleading guilty because he may be eligible for relief under the “DREAM Act.”

Torres further stated, “Based upon Mr. Brown’s advice, I believed that there was a chance that I

would not be deported. It was for this reason that I pled guilty.”

In his affidavit, Torres stated that he has lived in the United States since he was eight

years old and received lawful permanent resident status in 2005. His parents and eight siblings live

in the United States and all but one of them is a lawful permanent resident. Torres’s affidavit states

that, had he known that it would result in automatic deportation, he would not have pleaded guilty

but would have insisted on going to trial. He stated that even though, if convicted, he could receive

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a punishment of up to two years in state jail, “[t]wo years in jail weighed against a lifetime of being

banned from the country I know as my home is a chance I am absolutely willing to take.”

The application was also supported by the affidavit of Juan Carlos Rodriguez, an

immigration attorney who opined that the law clearly provided that deportation would result from

a conviction for the offense to which Torres pleaded guilty. Rodriguez also opined that Brown’s

failure to specifically advise Torres of the clear immigration consequences of pleading guilty

constituted ineffective assistance of counsel under Padilla. Although the affidavit does not address

the issue, it does not appear that Rodriguez provided either Brown or Torres any legal advice prior

to the plea, but rather served only to provide an expert opinion in support of Torres’s application

for writ of habeas corpus.

The court conducted a hearing on the application. Torres relied on the affidavits in

lieu of live testimony. While not conceding that Brown’s performance was deficient, the State focused

mainly on its argument that Torres failed to establish that he had been prejudiced by any deficiency

in Brown’s admonitions regarding the immigration consequences of a guilty plea. See Strickland

v. Washington, 466 U.S. 668, 693 (1984) (claims “alleging a deficiency in attorney performance”

are subject to general requirement that defendant affirmatively prove prejudice). At the hearing, the

trial court stated that it was not making a final ruling as to whether Brown’s assistance was actually

ineffective but, rather, was denying the application because Torres failed to establish prejudice

resulting from Brown’s alleged failure to adequately advise Torres of the consequences of a guilty

plea. The court then signed an order denying the application. At Torres’s request, the court filed

findings of fact and conclusions of law. Torres then perfected this appeal, in which he argues that

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the trial court erred by making findings of fact that were unsupported by the record and that the

trial court abused its discretion by denying the application.

DISCUSSION

Standard of Review

We review a habeas court’s decision on an application for a writ of habeas corpus

under an abuse of discretion standard. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App.

2006). The applicant bears the burden of establishing by a preponderance of the evidence that the

facts entitle him to relief. Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995). We afford

almost total deference to the habeas court’s determinations of historical fact that are supported by

the record. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). When reviewing the

habeas court’s denial of an application, we must view the facts in the light most favorable to the trial

court’s ruling and uphold that ruling absent an abuse of discretion. Ex parte Wheeler, 203 S.W.3d

at 324. If the resolution of the ultimate question turns on the application of legal standards, we

review those determinations de novo. Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth

2011, pet. ref’d); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Ineffective Assistance of Counsel

To prevail on an ineffective assistance claim, an applicant must show that (1) counsel’s

performance was deficient by falling below an objective standard of reasonableness; and (2) counsel’s

deficiency caused the defendant prejudice—that is, there is a probability sufficient to undermine

confidence in the outcome that but for counsel’s errors, the result of the proceeding would have been

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different. See Strickland, 466 U.S. at 687-88, 694; Perez v. State, 310 S.W.3d 890, 892-93 (Tex.

Crim. App. 2010). The applicant must prove both prongs of the test by a preponderance of the

evidence, and failure to establish either deficient performance or prejudice will defeat a claim of

ineffectiveness. Perez, 310 S.W.3d at 893.

A defendant has the right to effective assistance of counsel in guilty-plea proceedings.

Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). A guilty plea must represent a

“voluntary and intelligent choice among the alternative courses of action open to the defendant.”

Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). “A guilty plea is not knowing

or voluntary if made as a result of ineffective assistance of counsel.” Ex parte Moussazadeh,

361 S.W.3d 684, 689 (Tex. Crim. App. 2012). When a person challenges the validity of a plea

contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether

counsel’s advice was within the range of competence demanded of attorneys in criminal cases

and, if not, (2) whether there was a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty. See Ex parte Harrington, 310 S.W.3d at 458.

When, as Torres contends is the case here, “the terms of the relevant immigration

statute are succinct, clear, and explicit in defining the removal consequence” of a conviction, i.e.,

when the “deportation consequence is truly clear,” counsel’s advice must be “equally clear.” Padilla,

559 U.S. at 369; see also Ex parte Ali, 368 S.W.3d 827, 834 (Tex. App.—Austin 2012, pet. ref’d).

Failure to meet this standard may render plea counsel’s performance deficient. To establish prejudice,

an applicant “must convince the court that a decision to reject the plea bargain would have been

rational under the circumstances.” Padilla, 559 U.S. at 372. The test is objective and turns on what

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“a reasonable person in the defendant’s shoes would do.” Ex parte Ali, 368 S.W.3d at 835 (quoting

United States v. Smith, 844 F.2d 203, 209 (5th Cir. 1988)). “In determining whether an applicant

would not have pleaded guilty but for counsel’s deficient advice, a court is to consider ‘the

circumstances surrounding the plea and the gravity of the misrepresentation material to that

determination.’” Id. at 835-36 (quoting Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App.

1999)). “Even when a defendant wholly relies upon erroneous advice of counsel, the magnitude

of the error as it concerns the consequences of the plea is a relevant factor; not every reliance on

erroneous advice is sufficient to justify rendering the plea vulnerable to collateral attack.” Ex parte

Moody, 991 S.W.2d at 858. When the prejudice prong of the Strickland test is dispositive, as it is

here, we will address only that prong on appeal. Ex parte Ali, 368 S.W.3d at 835; see also Strickland,

466 U.S. at 697.

No Prejudice

In his second issue, Torres asserts that the trial court abused its discretion by denying

the application on the ground that Torres failed to show by a preponderance of the evidence that he

was prejudiced by Brown’s allegedly deficient performance. As we observed in Ex parte Ali, the

Texas Court of Criminal Appeals has explained the prejudice inquiry in plea cases as follows:

In the ineffective assistance of counsel context, the narrowed prejudice inquiry is
designed to ensure that the defendant would actually have availed himself of the
proceeding in question, so that he really is in the same position as someone whose
rights were denied by the trial court: “counsel’s deficient performance must
actually cause the forfeiture [of the proceeding in question]. If the defendant cannot
demonstrate that but for counsel’s deficient performance, he would have [availed
himself of that proceeding], counsel’s deficient performance has not deprived him
of anything, and he is not entitled to relief.”

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Johnson v. State, 169 S.W.3d 223, 231-32 (Tex. Crim. App. 2005) (quoting Roe v. Flores-Ortega,

528 U.S. 470, 484 (2000)). We must determine whether Torres proved by a preponderance of the

evidence that there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty. See Ex parte Ali, 368 S.W.3d at 835. This requires proof that a decision to reject the

plea bargain was rational under the circumstances. See Ex parte Harrington, 310 S.W.3d at 458.

This inquiry is made on a case-by-case basis in which we consider the circumstances surrounding

the plea and the gravity of the alleged failure. See Ex parte Ali, 368 S.W.3d at 836.

The record indicates that Torres was observed by a school principal conducting a sale

of what was confirmed to be marijuana to another student. There was no evidence of any factual or

legal defenses that Torres could advance at trial to avoid conviction. Instead, Torres’s counsel

argued that Torres could be acquitted if the State was unable to get certain statements and other

evidence of Torres’s guilt admitted at trial.1

The circumstances of his decision to plead guilty, as set forth above, are that Torres

was told by his counsel that, although the offense to which he was considering pleading guilty would

make him deportable, he “may or may not” be deported, and that ICE may not seek to deport him

due to the small amount of marijuana involved. Thus, Torres’s decision to plead guilty to the offense

was not predicated on his mistaken belief that there was no risk that he would be deported as a

1
The Texas Court of Criminal Appeals has instructed that, in the involuntary plea context,
“the defendant need not show that his case would have received more favorable disposition had he
gone to trial.” Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005) (citing Roe v. Flores-
Ortega, 528 U.S. 470, 485-86 (2000)). But to determine whether it would be rational for a defendant
to insist on going to trial, a habeas court properly considers evidence concerning the likelihood of
success at trial. Overwhelming evidence of guilt and no evidence of a legal or factual defense makes
it more likely that a decision to go to trial would be irrational. See Ex parte Ali, 368 S.W.3d 827,
840 (Tex. App.—Austin 2012, pet. ref’d).

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consequence. Torres was advised to, and did, consult with immigration counsel, but he did not

testify or otherwise explain to the habeas court what advice he was given by that attorney with

respect to the immigration consequences of a guilty plea. Notably, Torres did not represent to the

habeas court that immigration counsel also incorrectly advised him that he “may or may not be

deported.” When asked at the plea hearing whether he understood the consequences of his plea,

Torres affirmed to the trial court that he had consulted with an immigration attorney who had

“made him aware of . . . the circumstances of [his] case and the possible ramifications.” Torres’s

representation to the court at the plea hearing that he had conferred with an immigration attorney,

coupled with his failure to testify at the habeas proceeding that the immigration attorney gave

him inaccurate information, supports the inference that this was not a case in which Torres was

uninformed of the immigration consequences of his guilty plea. Thus, even assuming Brown’s advice

did not meet the Padilla standard, the trial court would not have abused its discretion in finding

Brown’s allegedly deficient performance harmless under the particular circumstances of this case.

While Torres stated that he would not have pleaded guilty had he known that his plea

would result in automatic deportation without the ability to seek discretionary relief, the trial court

was free to disbelieve this statement. See id. at 840-41. Further, in his affidavit Torres averred that

he would have insisted on a trial because “[t]wo years in jail weighed against a lifetime of being

banned from [the United States] is a chance I am absolutely willing to take.” This Court has expressly

rejected an approach that “simply accept[s] as true the statements in the applicant’s testimony or

affidavit.” See id. at 841 n.11. Rather, the standard we apply is whether a decision to reject a plea

bargain and go to trial would have been rational under the circumstances.

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 The habeas court considered the strong evidence of Torres’s guilt, the facts that he

faced up to two years confinement and a $10,000 fine if convicted and would continue to face

deportation if convicted at trial, the lack of evidence of any factual or legal defenses, and the lack

of evidence of any other plea deal that would have helped him avoid deportation. These factors support

the conclusion that a rational noncitizen defendant would likely not risk a trial since the result would

be near-certain conviction with a harsher criminal penalty in addition to the same immigration

consequences of pleading guilty. See id. at 840; see also Ex parte Moreno, 382 S.W.3d 523, 529-30

(Tex. App.—Fort Worth 2012, pet. ref’d) (no prejudice when no evidence that State would have

considered or accepted plea bargain for charge not resulting in same immigration consequences).

Viewing the evidence before the trial court in the light most favorable to the trial court’s ruling, we

cannot conclude that the trial court abused its discretion in denying Torres’s habeas application. It

was not an abuse of discretion for the trial court to conclude that Torres failed to prove by a

preponderance of the evidence that there was a reasonable probability, sufficient to undermine

confidence in the outcome, that, but for counsel’s allegedly deficient advice, he would not have

pleaded guilty and would have insisted on going to trial. See Strickland, 466 U.S. at 694 (under

second prong of test “reasonable probability” is probability sufficient to undermine confidence in

outcome); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (same). We overrule

Torres’s second issue.

In his first appellate issue, Torres complains that certain of the trial court’s findings

of fact were unsupported by the record. First, Torres challenges the trial court’s finding that Brown

“informed his client that he would be deported by pleading guilty to the offense as charged.”

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According to Torres, he was told he was “deportable,” not that he would be deported. This finding

goes to the issue of whether Brown’s performance was deficient, an issue we need not decide, and

is thus irrelevant to disposition of this appeal. Torres also challenges the trial court’s finding that

Brown “stated that [Torres] had also spoken to another attorney who had informed [Torres] that the

delivery charge would result in [Torres] being deported.” Torres contends that this finding is erroneous

because Brown stated to the trial court only that the other attorney told Brown that the offense

charged was a “deportable offense,” and there was no evidence regarding what the attorney told

Torres and “the record does not contain mention of outside counsel telling [Torres] that he was

going to be deported.” Our holding that the trial court did not abuse its discretion in concluding that

Torres was not prejudiced by his counsel’s allegedly deficient performance does not depend on this

“finding,” which purports to be nothing more than a recitation of Brown’s representation to the

trial court during the plea hearing. Rather, we considered the totality of the circumstances, including

that Torres affirmed at the plea hearing that he had conferred with an immigration attorney and

understood the consequences of his plea, yet failed to bring forward evidence at the habeas

proceeding that the immigration attorney also misadvised him by telling him that he “may or

may not be deported.” Even were we to disregard the complained-of finding, we would reach the

same conclusion. Finally, Torres complains of the trial court’s finding that “a $20 bill was found

folded up in [Torres’s] pocket when he was arrested and later searched at the Comal County Jail.”

According to Torres, there is no evidence in the record to support this finding and it should not be

considered as evidence tending to show that Torres would be convicted at trial. We did not, however,

consider this finding as part of our review of whether the trial court abused its discretion in

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concluding that Torres was not prejudiced by Brown’s allegedly deficient performance. Our analysis

of the likelihood-of-success-at-trial component of the prejudice inquiry was confined to the eyewitness

accounts and Torres’s failure to identify any factual or legal defenses to the charge. The finding that

Torres had a $20 bill on his person is irrelevant to the disposition of the case. Consequently, we

need not address the merits of the arguments contained in Torres’s first appellate issue.

CONCLUSION

Having concluded that the habeas court did not abuse its discretion in denying

Torres’s application for writ of habeas corpus, we affirm the order denying the writ.

__________________________________________

Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: April 29, 2015

Do Not Publish

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