In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-12-00554-CR
____________________
EX PARTE LUCIANO RESENDEZ ARJONA
_______________________________________________________ ______________
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D-950411-AR
________________________________________________________ _____________
OPINION
Luciano Resendez Arjona was arrested in 1995, and pleaded guilty in 2008
to felony possession of marijuana. He was sentenced to five years in prison. The
trial court suspended the imposition of the sentence and placed Arjona on
community supervision for five years. Arjona subsequently filed an application for
writ of habeas corpus. He claimed he did not know that his guilty plea would
automatically result in deportation. The trial court denied Arjona’s application.
Arjona contends that he is entitled to habeas relief because his trial counsel
misadvised him, and because the trial court’s admonishments were insufficient to
inform him of the immigration consequences. See Tex. Code Crim. Proc. Ann. art
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11.072 (West 2005). Arjona contends his guilty plea was unknowing and
involuntary. See Ex parte Hernandez, No. 09-12-00366-CR, __ S.W.3d __, 2013
Tex. App. LEXIS 4032, at **2, 12-13 (Tex. App.—Beaumont Mar. 27, 2013, no
pet. h.) (not yet released for publication).
STANDARD OF REVIEW
An appellate court reviews for abuse of discretion a trial court’s ruling on
the merits of an application for writ of habeas corpus. Ex parte Klem, 269 S.W.3d
711, 718 (Tex. App.—Beaumont 2008, pet. ref’d). In the appeal from the order in
the habeas corpus proceeding, “[t]he sole purpose of the appeal is to do substantial
justice to the parties.” Tex. R. App. P. 31.2. This Court must “render whatever
judgment and make whatever orders the law and the nature of the case require.”
Tex. R. App. P. 31.3.
ADVICE OF COUNSEL
The State cannot deprive Arjona of his liberty without due process of law.
See U.S. Const. amends. V, XIV, § 1. Due process requires that a guilty plea be
considered valid only if the plea represents a voluntary and knowing choice among
the alternative courses of action available to the defendant. See Boykin v. Alabama,
395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed. 274 (1969).
2
The Sixth Amendment to the United States Constitution guarantees a
defendant effective assistance of counsel in a plea hearing. McMann v. Richardson,
397 U.S. 759, 771 & n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). If counsel is
ineffective at the plea hearing, a defendant may be prevented from entering a
knowing and voluntary plea. See Hill v. Lockhart, 474 U.S. 52, 56-60, 106 S.Ct.
366, 88 L.Ed.2d 203 (1985).
When a person challenges the validity of a guilty plea entered upon the
advice of counsel, the voluntariness of the plea depends on whether (1) counsel’s
advice was within the range of competence demanded of attorneys in criminal
cases and, if not, whether (2) there is a reasonable probability that, but for
counsel’s errors, the person would not have pleaded guilty and would have insisted
on going to trial. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App.
2010). The Sixth Amendment requires that the defense attorney for a criminal
defendant provide advice about the risk of deportation arising from a guilty plea.
Chaidez v. United States, ___ U.S. ___, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149
(2013). When the law is not succinct and straightforward, a defense attorney need
do no more than advise a noncitizen client that pending criminal charges may carry
a risk of deportation. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1483, 176
L.Ed.2d 284 (2010). But the Supreme Court also explained in Padilla that if a
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deportation consequence is truly clear, as when the client is subject to automatic
deportation, the duty to give correct advice is equally clear, and counsel must
advise the client accordingly. Id., 130 S.Ct. at 1478, 1483. The defendant must
show that, had the immigration consequences been made known to him, a decision
to reject the plea bargain would have been rational under the circumstances. Id. at
1485. The holding in Padilla is not retroactive; “defendants whose convictions
became final prior to Padilla [March 31, 2010] . . . cannot benefit from its
holding.” Chaidez, 133 S.Ct. at 1113; Ex parte De Los Reyes, 392 S.W.3d 675, 679
(Tex. Crim. App. Mar. 20, 2013).
In 2008, the trial court adjudicated Arjona guilty of felony possession of
marijuana and suspended the imposition of Arjona’s sentence. In Texas, a
defendant placed on community supervision may possibly raise issues relating to
the original plea proceeding in the appeal taken when community supervision is
imposed, but not in an appeal from revocation proceedings. See Manuel v. State,
994 S.W.2d 658, 661 (Tex. Crim. App. 1999). Although there is a limited “void
judgment” exception to that rule, generally the judgment placing a defendant on
community supervision is “final” for the purpose of appeal from the plea when
community supervision is imposed. See Nix v. State, 65 S.W.3d 664, 667-68 (Tex.
Crim. App. 2001). And generally the “void judgment” exception does not apply to
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a challenge to the involuntariness of the plea. Id. at 669. Under this approach to
determining what constitutes a “final conviction” for purposes of the Padilla rule,
the conviction here would be considered “final” before Padilla was handed down,
because Arjona’s direct appeal options were no longer available. See Allen v.
Hardy, 478 U.S. 255, 258 n.1, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (“Final”
means judgment of conviction rendered, the availability of appeal exhausted, and
the time for petition for certiorari has elapsed.); see also Ex parte Luna, No. 14-11-
01063-CR, 2013 Tex. App. LEXIS 3206 (Tex. App.—Houston [14th Dist.] Mar.
26, 2013, no pet. h.) (not yet released for publication). 1
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But see Ex parte Hiracheta, 307 S.W.3d 323, 324-25 (Tex. Crim. App.
2010); Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001) (“[P]robated
sentences and probation revocations pose some unique issues.”); Ex parte Langley,
833 S.W.2d 141, 143 (Tex. Crim. App. 1992); Ex parte Brown, 662 S.W.2d 3, 4
(Tex. Crim. App. 1983) (“Nor is a conviction final while the accused is still
serving a probated felony sentence.”); Ex parte Payne, 618 S.W.2d 380, 381 (Tex.
Crim. App. 1981); see also Ex parte White, 211 S.W.3d 316, 318 (Tex. Crim. App.
2007) (General rule has exceptions.). Subject to certain exceptions, the Code of
Criminal Procedure provides in part that in terminating regular community
supervision:
[T]he judge may set aside the verdict or permit the defendant to
withdraw the defendant’s plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant, who shall
thereafter be released from all penalties and disabilities resulting from
the offense or crime . . . [.]
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We presume for the purpose of our analysis that the Padilla rule imposed in
2010 does not apply to the 2008 plea hearing. We consider whether, despite the
presumed inapplicability to this case of the new duty imposed in Padilla, the plea
is subject to attack as unknowingly and involuntarily made.
PLEA DISCUSSION
Arjona is from Mexico; he moved to the United States for the first time in
1989. He was twenty-two years old when he was arrested for felony possession of
marijuana. Arjona married sometime after the 1995 arrest. He now has four
children. He asserts in his application that his family relies on him “for financial
support as he is the sole provider of the family.” His plea was entered thirteen
years after the arrest. At the plea hearing, the following exchange occurred:
THE COURT: Now, have you always been a citizen of the United
States?
THE DEFENDANT: Right now I almost got my Green Card.
THE COURT: Let me tell you this: If you are not a U.S. citizen, a
plea of guilty or nolo contendere may result in deportation, exclusion
to the country, or denial of naturalization under federal law. Do you
understand that?
THE DEFENDANT: Yes.
Tex. Code of Crim. Proc. Ann. art. 42.12 § 20(a) (West Supp. 2012). See generally
Cuellar v. State, 70 S.W.3d 815, 818-19 (Tex. Crim. App. 2002) (“within the trial
court’s sole discretion”).
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DEFENSE COUNSEL: Your Honor, for the record, I’ve been in
touch with Immigration over in Houston; and I think their main
concern is whenever he’s finished with probation for me to get with
them. Isn’t that your understanding?
THE DEFENDANT: Yes, sir. I’m sorry. Right now my case -- you
know, when I get my Green Card, these case show up there. So, they
say I have to come first here and then go back there before I can get
my Green Card. So, I’m sorry because I don’t come to the court. This
happened 13 years ago. Because nobody tell me I have to show up in
court. You know, I just get out unless I’m returning the card and then
I go back to my country and I just marry and coming back to work. I
work almost 13 years. I got three kids, and that’s what I’m working
for. I’m -- I don’t do drugs, don’t drinking. Just working, go home.
THE COURT: All right. Well, we’re going to get a Presentence
Investigation Report; and you’re going to have to be back here on July
2nd at 10:30.
DEFENSE COUNSEL: That’s a Wednesday, Judge. I’ll instruct him
to probation. I think Catherine is gone.
THE COURT: All right. You go with your lawyer over to this office.
THE DEFENDANT: Okay, sir.
THE COURT: And they’re going to have you come back so they can
talk with you and get some information from you and they’ll prepare
this report and I’ll have it when you come back here on July 2nd at
10:30. You have to be back that date. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: All right. That’s it. Thank you.
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In his affidavit in support of the habeas corpus application, Arjona states
that he has a “Texas Identification Card . . . [.]” Arjona explains in the affidavit
that at the plea hearing he “was under the impression that my guilty plea would not
affect my then pending application to adjust my status to a lawful permanent
resident.” He further explains that his “application to adjust status to a lawful
permanent resident was subsequently denied due to my entering into a guilty plea
and was placed in deportation proceedings.” Arjona declares that if he had known
those consequences, he “would have definitely not plead guilty to felony
possession of marijuana.”
In denying Arjona’s application for writ of habeas corpus, the trial court
made findings, including the following:
On June 12, 2008, Applicant appeared with his attorney and entered a
plea of Guilty and was admonished by the trial court.
....
Upon learning that Applicant was not a citizen of the United States,
the Trial Court admonished the Applicant as set forth in Article
26.13(a)(4) of the Code of Criminal Procedure.
A discussion took place at the time of the plea regarding Applicant’s
efforts to obtain a green card. Both Applicant and his attorney had
been in contact with Immigration officials in Houston, Texas.
Applicant advised the Trial Court that Immigration officials told him
to come to Orange County to take care of this old case and then return
to get his green card. Applicant’s attorney had been told by Immigration
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officials that Applicant needed to complete his probation and then
contact them regarding his green card.
Immigration officials never told Applicant or his attorney that
Applicant would be deported if he entered a plea in this case.
Applicant was advised by the Trial Court that a plea of guilty might
result in deportation, the exclusion from admission to this country, or
the denial of naturalization under federal law.
An alien convicted of an “aggravated felony” is deportable and shall
upon order of the Attorney General be removed.
The Attorney General of the United States has wide discretion to
decide what immigration laws will be enforced and how.
The trial court concluded that Arjona knew he might be subject to deportation and
yet pleaded guilty.
The record from the plea hearing reflects trial counsel’s affirmative misadvice
as well as Arjona’s misunderstanding of the consequences of his plea. Arjona’s
appellate counsel argues that the “statement by trial counsel makes absolutely no
sense. There is no relief for [a]ppellant after he pleads guilty to a controlled
substance offense, even after he is ‘finished’ with probation.”
A federal statute provides that “[a]ny alien who at any time after admission
has been convicted of a violation of (or a conspiracy or attempt to violate) any law
or regulation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 102 of the Controlled Substances Act
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(21 U.S.C. 802)), other than a single offense involving possession for one’s own
use of 30 grams or less of marijuana, is deportable.” 8 U.S.C.S. § 1227(a)(2)(B)(i).
Arjona told the judge, when Arjona was asked if he was a citizen, “Right now I
almost got my Green Card.” When Arjona was asked whether he knew he “may”
be subject to deportation, he said “yes” first, but when counsel interjected “for the
record” and countered the response, Arjona apologized and then explained what he
thought would be the effect of his plea. Apparently he believed that pleading guilty
and obtaining community supervision would allow him to remain in the country.
The record indicates that he thought, as his attorney explained, “whenever
[Arjona’s] finished with probation,” his attorney was “to get with” the immigration
authorities. As Arjona explained, “[T]hey say I have to come first here and then go
back there before I can get my Green Card.”
Under federal law, apparently his guilty plea would have the opposite
consequence: deportation. The record provides support for Arjona’s assertion that
he would not have pleaded guilty to the “old case” indictment. Appellate counsel
argues that, under the circumstances, “the trial court’s and/or trial counsel’s
admonishments” “were insufficient[.]”
The purpose of the article 26.13 admonishments is to assist in determining
that a valid plea is entered and accepted by the trial court. See Fuller v. State, 253
10
S.W.3d 220, 229 (Tex. Crim. App. 2008) (Admonishments assist trial court in
determining that a guilty plea is knowingly and voluntarily entered.); see also Tex.
Code Crim. Proc. Ann. art. 26.13 (West Supp. 2012). Although the record reflects
that the trial court gave the admonishment in accordance with article 26.13(a)(4),
the substance of Arjona’s response indicates he was willing to plead guilty and
serve community supervision with the understanding that he could then be able to
get his “green card.” Compare Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim.
App. 1995) (“Applicant has not alleged that the lack of the admonishment of Art.
26.13(a)(4) affected his guilty plea to the extent that it was not knowingly and/or
voluntarily made.”).
The admonishment is a prima facie showing that the guilty plea was
knowing and voluntary. See Richard v. State, 788 S.W.2d 917, 920 (Tex. App.—
Houston [1st Dist.] 1990, no pet.). The burden shifted to Arjona to show,
considering the totality of the circumstances, the plea was unknowing and
involuntary. See Ex parte Zapata, 235 S.W.3d 794, 795 (Tex. Crim. App. 2007)
(involuntary plea); Ex parte Young, 644 S.W.2d 3, 4-5 (Tex. Crim. App. 1983)
(Record supported trial court’s findings that defendant was misled, thereby
rendering plea involuntary.). A plea hearing may provide sufficient evidence to
show the circumstances, but an applicant’s burden may require an evidentiary
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hearing separate from the plea hearing. See, e.g., Grays v. State, 888 S.W.2d 876,
879 (Tex. App.—Dallas 1994, no pet.).
Although counsel may have had no initial duty to advise Arjona of the
deportation consequence of his guilty plea, because under our presumption the
conviction is considered final before the Padilla rule took effect, once counsel
responded to the court’s admonishment with volunteered advice, he became
obligated to provide the court and the defendant with accurate information.
Otherwise, a possibility exists that the court’s admonishment was rendered
ineffective, and counsel would be free to mislead a defendant, “simply because
there was no initial duty.” See, e.g., Ex parte Williams, 704 S.W.2d 773, 776 (Tex.
Crim. App. 1986) (court’s obligation to provide accurate information). Affirmative
misadvice by counsel regarding a material issue that the plea hearing reflects was
key to the defendant’s plea decision may constitute deficient performance. 2 See
generally Ex parte Moussazadeh, 361 S.W.3d 684, 688 (Tex. Crim. App. 2012)
(“Counsel’s advice can provide assistance so ineffective that it renders a guilty
2
Even without a Sixth Amendment violation, a plea may be invalid because
it was not made knowingly and voluntarily. The constitutional guarantees of due
process and of right to counsel, though related, are separate. See Boykin, 395 U.S.
at 242-43. (Waivers concerning a guilty plea are required to be affirmatively
shown on the record.). Here, it appears that Arjona’s attorney’s advice may not
have been the only source of his misunderstanding.
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plea involuntary.”); Ex parte Griffin, 679 S.W.2d 15, 18 (Tex. Crim. App. 1984)
(“On these facts, applicant’s plea of guilty was not a knowing, intelligent act done
with sufficient awareness of the relevant circumstances and likely consequences.”);
see also generally Morales v. State, 910 S.W.2d 642, 646-47 (Tex. App.—
Beaumont 1995, pet. ref’d) (“Neither would she have agreed to plead guilty had
she been informed about the deportation consequences.”). And from the record, it
also appears Arjona may have retained trial counsel for the specific purpose of
clearing a legal barrier to obtaining lawful permanent status. Counsel may have
purposefully assumed a duty he may not otherwise have had before Padilla.
In Padilla, the Supreme Court noted there is no relevant difference between
an act of omission and an act of commission in this context, and refused to limit
the new duty it imposed on counsel to simply that of avoiding affirmative
misadvice. Padilla, 130 S.Ct. at 1484. But that does not mean affirmative
misadvice concerning a material issue was considered acceptable representation
before or after Padilla. See Ex parte Griffin, 679 S.W.2d at 17-18; United States v.
Kwan, 407 F.3d 1005, 1008-09, 1014-1018 (9th Cir. 2005) (distinction abrogated
by Padilla); United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002)
(distinction abrogated by Padilla); Downs-Morgan v. United States, 765 F.2d
1534, 1540-41 (11th Cir. 1985); see also 43 George E. Dix & John M.
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Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 40:43 (3d
ed. 2011 & Supp. 2012); 43 George E. Dix & Robert O. Dawson, Texas Practice
Series: Criminal Practice and Procedure § 34.111 (2d ed. 2001) (Counsel’s
material misadvice may render guilty plea involuntary.). 3
PROCEDURE IN THE TRIAL COURT
Arjona presented his affidavit indicating that he did not enter the plea
knowingly and voluntarily, and the habeas court had a transcript of the 2008 plea
hearing. The arrest occurred in 1995, and, according to appellate counsel’s brief,
Arjona was a passenger in the vehicle searched. Appellate counsel argues that a
decision to pursue legal options other than a guilty plea would have been rational,
and counsel argues that Arjona would have “insisted on pursuing other options
such as a motion to suppress and/or a jury trial.”
Although a habeas corpus hearing was scheduled in the trial court twice, no
hearing was held. An appellate court may remand a habeas proceeding to the trial
court if the factual record has not been sufficiently developed. Ex parte Hernandez,
2013 Tex. App. LEXIS 4032, at *15; Ex parte Cherry, 232 S.W.3d 305, 308 (Tex.
App.—Beaumont 2007, pet. ref’d). Under the circumstances here, an opportunity
3
Padilla references Kwan and Couto, which suggest that the ineffective
assistance claim must involve “affirmative misadvice.” Padilla, 130 S.Ct. at 1484.
Padilla does not limit the ineffective assistance in this context to acts of
commission.
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for further development of the habeas corpus record is required to determine
whether the plea was knowing and voluntary. Article 11.072 does not require a
hearing when the issues can be resolved without one. See Tex. Code Crim. Proc.
Ann. art. 11.072. But considering the circumstances presented at the plea hearing,
the possibility of an assumed duty by counsel, and the allegation of ineffectiveness
and affirmative misadvice of counsel, we conclude that the applicant should be
provided an opportunity to develop and present evidence at the hearing. Therefore,
“to do substantial justice to the parties[,]” we set aside the trial court’s order
denying the application and remand the case to the trial court for a hearing on the
application for habeas corpus relief. See Tex. R. App. P. 31.2; 31.3.
VACATED AND REMANDED.
________________________________
DAVID GAULTNEY
Justice
Submitted on January 30, 2013
Opinion Delivered May 15, 2013
Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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