ACCEPTED
03-14-00169-CR
5555268
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/4/2015 6:25:04 PM
JEFFREY D. KYLE
CLERK
Nos. 03-14-00169-CR
EX PARTE § IN THE COURT OF APPEALS
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
VS. § THIRD JUDICIAL
6/4/2015DISTRICT
6:25:04 PM
JEFFREY D. KYLE
JOSE EDUARDO TORRES § TRAVIS COUNTY, Clerk
TEXAS
MOTION FOR REHEARING EN BANC
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
I. Statement of the Case
On September 10, 2013, Appellant pleaded guilty before the Honorable
Bruce Boyer in the 207th District Court to the offense of Delivery of Marihuana for
Remuneration, in an Amount Less than 4 Ounces, in a School Zone under Texas
Health & Safety Code Section 481.120. Appellant was sentenced to 4 years of
deferred adjudication probation. As a result of the plea, Appellant was taken into
custody by agents of the Federal Government’s Department of Immigration and
Customs Enforcement (ICE). On January 3, 2014, Appellant filed an Original
Application for a Writ of Habeas Corpus pursuant to Article 11.072 of the Texas
Code of Criminal Procedure. In the Application, Appellant claimed that his plea
was involuntary based on the ineffective assistance of his trial counsel, Mr. Kimbel
Brown. Appellant alleged that he was both insufficiently advised and affirmatively
misadvised regarding the immigration consequences of a plea of guilty to the
charged offense. Appellant specifically alleged that Mr. Brown failed to advise him
that he would be subject to automatic deportation without the possibility of
discretionary relief, a result of his plea, telling him only that he would be
“deportable” upon a plea of guilty. Appellant further asserted that he was
affirmatively misadvised when Mr. Brown then explained that despite being
“deportable” that he might not be deported because the amount of marihuana
involved was so small, that if he stayed out of trouble ICE may not come looking
for him, and that he could obtain relief under the DREAM Act. Appellant
contended that Mr. Brown’s advisals induced him to plead guilty because they
provided him false assurances that he had opportunities to remain in the US despite
his conviction. Appellant’s contentions were supported by the affidavit of Kimbel
Brown, who stated in his affidavit that he never told Appellant that he was subject
to automatic removal, lacked any possibility of discretionary relief, and told him
that he had opportunities to remain in the US despite his plea of guilty. The State
of Texas filed an answer in opposition to the Applicant’s writ. On January 27,
2014 the Court held a hearing on the merits of Applicant’s writ. The Court denied
granting Appellant’s request for relief on the basis that the Court felt a trial would
only result in a conviction. The trial court issued its order denying relief on March
13, 2014. Appellant filed a timely request for findings of fact and conclusions of
law on March 19, 2014. The trial court then issued its findings of fact and
conclusions of law on March 26, 2014.
Mr. Torres timely appealed the denial of his Application for Writ of Habeas
Corpus. Volume 1 of Clerk’s Record(CR), pgs. 56-57.
This Court issued an opinion on April 29, 2015 affirming the trial court’s
denial of Appellant’s petition for writ of habeas corpus. Ex Parte Torres, ___
S.W.3d ___, p. 14, No. 03-14-00169-CR, (Tex. App—Austin, April 29, 2015).
II. This Court’s Opinion
This Court held that Appellant failed to prove by a preponderance of the
evidence that Appellant, but for his counsel’s allegedly deficient advice, would
have insisted on a trial rather than plead guilty. (Slip. Op. 14). In reaching this
conclusion, the Court reasoned that Petitioner’s choice to pursue a trial in his cause
would not have been rational,
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.
Id. The court reasoned that given these factors, a rational noncitizen would not
have risked a harsher punishment after near-certain conviction in addition to
deportation.
This Court also held that the trial court would not have erred in finding the
deficient advice of Appellant’s counsel, Kimbel Brown, harmless. Id. In support of
this finding the Court noted that Appellant’s counsel had advised him that he “may
or may not be deported”, and thus Torres’ decision to plead guilty “was not
predicated on his mistaken belief that there was no risk that he would be deported
as a consequence.” Id at 13. The Court also held that Torres failed to present
evidence that his immigration attorney had also misadvised him. Id. Coupling this
with Torres’ assertion at his plea hearing that he understood the “possible
ramifications” of his plea, this Court determined that such facts supported “the
inference that this was not a case in which Torres was uninformed of the
immigration consequences of his guilty plea”. Id.
In holding that a decision by Appellant to pursue trial would not be rational,
this Court placed nearly exclusive focus on Petitioner’s assumed evidence of guilt
and whether or not he could succeed at trial, despite acknowledging that success
under Strickland’s prejudice prong was not predicated upon demonstrating a
favorable outcome at trial. Id at 12. In looking exclusively at the evidence against
Appellant, this Court ignored the crux of Appellant’s claim: that he had more
important reasons to fight his case besides simple guilt and innocence, specifically,
his life here in the United States. Had this Court examined the “special
circumstances” of Petitioner’s case, it is clear that his choice to pursue trial would
have been rational.
III. Reasons for Rehearing
Brown’s Deficient Performance Was Not Harmless
In reaching the conclusion that Torres was not uniformed of the possibility
of deportation this Court relied on the premise that because Torres’ counsel had
informed him that he “may or may not” deported, “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”. Id. at 13. Such reliance is to ignore Padilla’s
mandate that a non-citizen defendant be given clear and specific advice regarding
the deportation consequences. Padilla v. Kentucky, 559 U.S. 356, 369 (2010). By
using the fact that Mr. Torres knew there was simply a risk he could be deported,
this Court would simply revert to the Pre-Padilla rule that a general admonition of
“you may or may not be deported” is always sufficient to apprise a non-citizen
defendant of the consequences of a plea, thereby rendering Padilla irrelevant. In
suggesting that simply advising a noncitizen defendant who faces certain
deportation only that there is a “risk” of deportation, this Court would do the exact
opposite of what Padilla and it’s Texas progeny have held. See Ex Parte Olvera,
394 S.W.3d 572, 576, reversed on retroactivity grounds (Tex. App—Dallas
2012)(Holding counsel ineffective when he testified that he told Olvera
he could be deported or denied reentry into this country, not that a guilty plea
would result in automatic deportation and denial of reentry); Ex parte Fassi, 388
S.W.3d 881, 886 (Tex. App.-Houston[14th] 2012)(“counsel is deficient if counsel
merely mentions the possibility of deportation when the relevant immigration
statutes are presumptively mandatory.”); Ex Parte Ramirez, 08-11-00073-CR,
2012 WL 3113140 (Tex. App.—El Paso Aug. 1, 2012)(mem. op. not designated
for publication) at *7(holding trial counsel’s advisal that Appellee “could” be
subject to immigration consequences which, in light of the fact that the conviction
“would” result in deportation proceedings, was deficient); Ex Parte Torres, 08-12-
00244-CR(Tex. App.—El Paso Mar. 21, 2014), Ex Parte Torres, 08-12-00244-
CR, 2014 WL 1168929 at *5 (Tex. App.—El Paso Mar. 21, 2014)(not designated
for publication)(holding counsel had a duty to stress that pleading guilty to those
crimes and receiving deferred adjudication would absolutely result in Appellant's
imminent removal from the United States). In order to clarify and correct this
misstatement of law, this Court should revisit this ruling.
Further, this opinion, in unprecedented fashion, would require a defendant to
provide evidence of advice given to him by third-party counsel, thus shifting the
obligations placed on defense counsel under Padilla to another attorney not
representing the defendant in the criminal case. (Slip. op. 13). In doing so, this
Court completely ignored the undisputed fact that Torres’ criminal counsel, stated
on the record and in his affidavit, that he had spoken to the same attorney as
Petitioner, and after speaking with him, provided his “may or may not be deported”
advice. Volume 2 Reporter’s Record, page 9; 1 CR 64. Therefore, Petitioner
contends that even if he were required to demonstrate the misadvice of third-party
counsel, he has done so, by a preponderance of the evidence, by demonstrating that
Brown asserted not once but twice, that he gave his faulty advice only after
speaking with Torres’ immigration counsel. The only logical inference from this
fact is that the advice Brown received from Torres’ immigration counsel was of the
“may or may not be deported” nature. It stands to reason that what was told to
Brown, by the immigration attorney, is exactly what Brown explained to Torres.
When attorneys give patently incorrect advice, courts should hold them
accountable, instead of allowing the practice to continue unabated, so that further
incorrect advice can be given and reckless practices can continue. In failing to
address whether Brown provided misadvice, and in failing to hold his error as
causing harm to Petitioner, this Court does not hold Brown accountable. Further,
the Court’s opinion opens the door to defense counsel telling defendants whatever
they want regarding immigration consequences, be it correct or incorrect, so long
as the defendant also received advice from someone else. It is not unthinkable that
some attorney, concerned more with closing out a case than his client’s
immigration plight, would tell his client that he only “might” be deported, contrary
to another attorney’s advice that he “certainly” would be deported, solely to induce
a plea. This opinion would suggest that such advice would be harmless. This
cannot be the standard this Court seeks to set, and yet, this opinion would leave
open that possibility. This Court should reconsider this decision in order to prevent
defendants from receiving similarly bad advice.
Petitioner’s Special Circumstances
In deciding that Appellant’s choice to go to trial in the hopes of avoiding
deportation would not be rational, this Court’s opinion wholly ignored the the
evidence that demonstrated he placed particular emphasis on his immigration
status, thus presenting a case where “special circumstances” outside the traditional
guilt-innocence context could override even overwhelming evidence of guilt. See
Hill v. Lockhart, 474 U.S. 52, 60 (1985). In doing so, this Court ignored the
holding of Hill and its progeny which have stated that “special circumstances” may
exist outside the context of guilt and innocence which may override concerns about
conviction and punishment, as well as ignoring the Texas opinions which have
used this same factor as basis for rationally pursuing trial. See Salazar v. State, 361
S.W.3d 99, 102 (Tex. App.--Eastland 2011)(Finding “special circumstances where
defendant’s mother and younger siblings lived in the United States and defendant
had been reared in the United States); Ex Parte Torres, 08-12-00244-CR, 2014 WL
1168929, at *6 (Tex. App.--El Paso Mar. 21, 2014), petition for discretionary
review granted (Sept. 17, 2014)(Appellant was also an LPR, a native English
speaker, and has resided in the United States since he was a small child, all of
which weigh in favor of a prejudice finding.); Ex Parte Ramirez, 08-11-00073-CR,
2012 WL 3113140 (Tex. App.—El Paso Aug. 1, 2012)(mem. op. not designated
for publication)(special circumstances included living in the United States since
the age of five, having no ties to Mexico, as well as having all of her family and
her children living in the United States); U.S. v. Kwan 407 F.3d 1005, 1017 (2005)
(citing Hill, noting that Kwan’s actions indicated he placed particular emphasis on
his immigration consequences); Com. v. Broomfield, 85 Mass. App. Ct. 1104
(2014)(Case remanded to trial court for consideration of claim that twenty-one year
residency in the United States at the time of the plea constitutes “special
circumstances,” noting that long term legal residency may be a significant
consideration to be weighed in connection with all of the factors in a given case).
In its opinion, the Court noted that while a defendant need not demonstrate
that he would have succeeded at trial in order succeed in a habeas proceeding, this
means little if evidence of guilt and the existence of defenses, are all the Court
considers. There must be a counterbalance to the purely guilt-innocence context of
the strength of the evidence and possible defenses. This is why the “special
circumstances” component brought forth by Hill is so important: it gives this Court
something to weigh against the pure legal strength of the case against a defendant
when that defendant cares more about removal from his country than about
criminal punishment.
In his affidavit, Appellant testified that he had been in the United States
since at least the age of eight, that he had eight US citizen or lawful resident
brothers and sisters, both his parents lived in the US as permanent residents, and
that he had graduated high school and was in the process of being accepted to
college. 1 CR 67-68. Further, Appellant attempted to get immigration advice, an
attempt which was ultimately rendered moot by Brown’s erroneous advice. If an
Appellant with this background cannot prove special circumstances that would
warrant a rational decision to proceed to trial in the hopes of preserving his life in
this country, who can? This Court should reconsider addressing this issue in light
of Appellant’s compelling circumstances.
IV. Conclusion
This Court’s opinion rests on two claims: that Appellant’s trial counsel’s
advice was harmless and that Appellant would have been found guilty at trial.
However, both of these assertions ignore the clear facts of this case. Appellant’s
trial counsel openly admitted to giving bad advice. This Court cannot simply
ignore the undeniable fact that Brown failed to provide Appellant with the proper
advice that a conviction for the charged offense would result in certain deportation.
This Court seeks to rely on a hypothetical assumption that some other counsel
possibly gave Petitioner good advice, rather than rely on the known fact that
Brown gave him the wrong advice. When solid facts are in place before the Court,
they should not be eschewed in favor of hypothetical possibilities. Further, by
failing to address Appellant’s “special circumstances” regarding his background
here in the United States, this Court relied on two intertwined factors to determine
a lack of prejudice which dealt exclusively with whether Appellant would be
successful at trial. The Court relied on these factors despite an acknowledgement
that forcing an appellant to demonstrate a more favorable outcome at trial is never
the standard for proving prejudice. In failing to address the merits of Appellant’s
argument that special circumstances outside of the pleadings would lead a rational
non-citizen to pursue trial in order to stave off removal, this Court required
Appellant to prove success at trial. This Court should reassess the rationality of
Appellant’s choice to proceed to trial in light of rearing in this country, and the
existence of his entire family here in the United States.
Appellant prays that this Court will grant a rehearing, withdraw its opinion,
and issue an opinion reversing the judgment of the trial court.
Respectfully submitted,
Robert A. Jimenez
De Mott, McChesney, Curtright & Armendariz,
LLC.
800 Dolorosa Street, Suite 100
San Antonio, Texas 78207
210/354-1844
210/212-2116 - fax
By: /s/ Robert A. Jimenez
SBN: 24059125
CERTIFICATE OF SERVICE
I hereby certify that on this the 2nd day of June 2015 a copy of the foregoing
“Motion for Rehearing” has been electronically filed with this Court, and will be
served to the Comal County District Attorney’s Office on June 2nd, 2015.
/s/ ROBERT A. JIMENEZ
CERTIFICATE OF COMPLIANCE
In accordance with Tex. R. App. P. 9.4, I hereby certify that this brief
contains 2,083 words, which have been counted by use of the Word program with
which this brief was written.
/s/ Robert A. Jimenez______
ROBERT A. JIMENEZ