Court of Appeals of Texas, Second District, Fort Worth
THE 367TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER AND SUDDERTH, JJ.
Elida Uribe appeals the trial court's denial of her
habeas application, arguing that she received ineffective
assistance of counsel with regard to the immigration
consequences of her guilty plea and that, but for
counsel's deficient performance, she would not have
pleaded guilty and would have insisted on going to trial.
See Tex. Code Crim. Proc. Ann. art. 11.09 (West
2015); Padilla v. Kentucky, 559 U.S. 356, 369, 130
S.Ct. 1473, 1483 (2010); see also Le v.
State, 300 S.W.3d 324, 326-27 (Tex. App.-Houston [14th
Dist.] 2009, no pet.) (discussing jurisdiction over habeas
application based on "collateral legal
consequences" from misdemeanor conviction). We affirm.
police arrested Uribe, a Mexican citizen, on March 31, 2009,
alleging that she had beaten her "sister, " Mariana
Segura,  "with her fists and stabbed her with
a knife." The police interviewed Segura in the hospital
emergency room, where she reported that Uribe had knocked her
to the ground, repeatedly punched her in the face, hit her in
the face with a purse, kicked her in the mouth, and cut her
forearm with a six-inch steak knife, leaving a one-inch
laceration that required stitches. An officer photographed
Segura's injuries, which included the laceration and
other bumps, bruises, and scratches. Segura gave the officer
permission to retrieve the knife from the apartment where the
assault occurred. The police also took photographs that
depicted the knife and blood on the carpet from the scene of
receiving and waiving her Miranda rights, Uribe
recounted to the police her version of the encounter,
admitting that she had assaulted Segura.She also admitted
that she had grabbed a steak knife from the kitchen but said
that Segura was cut when Segura reached for it. Uribe was
indicted for aggravated assault with a deadly weapon,
second-degree felony offense with a punishment range of two
to twenty years' confinement and up to a $10, 000 fine.
See Tex. Penal Code Ann. §§ 12.33,
22.02(b) (West 2011).
pleaded guilty to Class A misdemeanor assault as a
lesser-included offense in exchange for 270 days'
confinement in county jail with no fine and no family
violence finding. See id. § 12.21 (West 2011)
(stating that an individual adjudged guilty of a Class A
misdemeanor shall be punished by a fine not to exceed $4,
000, confinement in jail for a term not to exceed one year,
or both such fine and confinement). Uribe's plea
agreement included the statement, "I understand that if
I am 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."
trial court signed the judgment of conviction on September
17, 2009. A few months later, the U.S. Department of Homeland
Security (DHS) served Uribe with a notice to appear, charging
her with removability under 8 U.S.C. §
years later, in 2016, Uribe filed her application for writ of
habeas corpus, to which she attached copies of the 2009
indictment and judgment of conviction, an affidavit in which
she set out another version of the facts underlying the
conviction and raised a self-defense claim,  DHS's notice
to appear, her former immigration counsel's affidavit,
and her current immigration counsel's affidavit.
current immigration counsel averred,
Based on the legal advice of both [Uribe's former
criminal defense counsel and her former immigration counsel],
Mrs. Uribe-Guerrero accepted a plea offer in her criminal
case that resulted in a sentence of 270 days in state
custody. At the time, neither her criminal attorney nor her
immigration attorney advised Mrs. Uribe-Guerrero that as a
result of that plea, she would become ineligible to request
cancellation of removal in immigration court. Specifically, an
individual who is confined to more than 180 days in jail
loses their eligibility for this relief. As a result
of acting on the erroneous legal advice given by both
lawyers, Mrs. Elida Uribe's only remaining option is
affidavit, her former immigration counsel stated that he did
not tell Uribe's former criminal defense attorney
that [8 U.S.C. § 1101(f)(7)] provided that no person
shall be regarded as a person of good moral character who has
been confined more than 180 days as a result of a conviction.
It was not until [he] received [a] memo from [ICE attorney
Judson] Davis . . . in August 2010 that [he] realized that
Ms. Uribe would have a problem with good moral character due
to the fact that the number of days served as a result of the
conviction were more than 180 days.
stated in her affidavit that her former immigration attorney
had improperly advised her and her criminal defense attorney
and stated, "If I would have known that the plea for
misdemeanor assault would have immigration consequences, I
would not have accepted the guilty. I would have pushed my
criminal attorney to pursue a different direction in my case,
including going to trial."
State attached to its answer to Uribe's application
copies of Uribe's plea bargain documents; the original
police report pertaining to Uribe's March 31, 2009
arrest, which contained Uribe's oral statements to the
police about the events of that evening; photographs of
Segura's injuries, the knife, and the bloodstained
carpet; Uribe's written statement to the police;
Segura's written statement to the police; Uribe's
book-in photo; Segura's emergency protective order; and
the court settings with plea bargain data. The State also
filed proposed findings of fact and conclusions of law, which
the trial court adopted.
other things, the trial court found the following in its
findings of fact:
2. [Uribe] made a judicial confession and signed plea
paperwork that she read, understood, and her attorney
explained, an admonishment regarding the immigration
consequences of her plea.
3. [Uribe] filed an affidavit from July 15, 2016, wherein she
claimed that she was the victim of the assault, Mariana
Segura hit her first, Ms. Segura threatened [Uribe] with a
knife, [Uribe] only retrieved a knife in self-defense, Ms.
Segura was never cut by the knife, and police officers did
not believe [Uribe]. [Uribe] also claimed that had she been
given correct immigration advice she would not have taken a
plea deal and would have "pushed her criminal attorney
to pursue a different direction in [the] case, including
going to trial."
4. [Uribe] is not credible.
5. The police report and Ms. Segura's statements from
March 31, 2009, detailed the assault: [Uribe] confronted Ms.
Segura; [Uribe] knocked her to the ground; [Uribe] punched
her in the face repeatedly; [Uribe] hit Ms. Segura with a
purse numerous times; [Uribe] kicked Ms. Segura in the face;
the beating caused Ms. Segura to lose consciousness; [Uribe]
retrieved a knife from the kitchen; and Ms. Segura was cut by
the knife, requiring stitches.
6. Officer Richard Crociata took pictures of Ms. Segura's
injuries and those pictures show injuries to Ms. Segura's
face, eye, lip, and arm.
7. On March 31, 2009, [Uribe] waived her Miranda
rights and gave Officer Crociata and Officer Lee Noble verbal
and written statements.
8. On March 31, 2009, [Uribe] told officers:
I beat her ass, I got on top of her and punched her, and
couldn't stop myself, I kicked her in the face. I then
got up and grabbed a steak knife and wanted to scare her
because I know she is terrified of them, and she went to grab
it away and got cut.
9. In her March 31, 2009 written statement, [Uribe] admitted
she was "fed up" with rumors started by Ms. Segura
so [Uribe] walked up to Ms. Segura, punched Ms. Segura
"straight on the face, " "dropped her on the
floor, " and continued to punch Ms. Segura in the face
and pulled Ms. Segura's hair. [Uribe] further admitted
that she grabbed a knife to scare Ms. Segura and Ms. Segura
was cut when Ms. Segura tried to push the knife out of
10. None of the evidence collected from the night of the
assault suggests that Ms. Segura instigated the fight or
trial court concluded that even if Uribe's counsel was
found to be constitutionally deficient in his representation,
Uribe had failed to show that there was a reasonable
probability that, but for his errors, she would not have
pleaded guilty because it would not have been rational under
the circumstances when she would have risked a harsher
penalty with the same immigration consequences. The trial
court further concluded that rejecting the plea bargain would
not have been rational because the evidence showed that Uribe
had committed aggravated assault with a deadly weapon and
that if she had proceeded to trial, "it is likely she
would have been found guilty." And it concluded that
Uribe's claimed legal and factual defenses in her 2016
affidavit were not credible considering the other evidence,
including her signed confession from 2009; that rejecting the
plea bargain would not have been rational when Uribe did not
state that immigration consequences were her primary concern
in 2009 when she was facing up to twenty years in prison; and
that Uribe had failed to show that the State would have
offered a different plea bargain that would have helped her
avoid negative immigration consequences. The trial court
further stated that rejecting the plea bargain was not
rational because if Uribe had taken the
aggravated-assault-with-a-deadly-weapon case to trial, she
would not have been eligible for probation from the
judge and it was unlikely that she would have
received it from the jury in light of the facts.
making its conclusions, the trial court stated that it looked
at the following factors regarding whether it would have been
rational for Uribe to reject the plea bargain: evidence of
her guilt; evidence of her factual or legal defenses; whether
she had presented evidence that her immigration status had
been her primary concern; her plea deal compared to the
penalties she risked at trial; whether she presented evidence
that any other plea deal would have helped her avoid negative