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Ex parte Garcia

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 13, 2017

EX PARTE SAMUEL OSVALDO GARCIA

         On appeal from the 357th District Court of Cameron County, Texas.

          Before Justices Rodriguez, Benavides, and Hinojosa

          OPINION

          LETICIA HINOJOSA Justice

         The State of Texas appeals from an order granting Samuel Osvaldo Garcia a post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 44.01(k) (West, Westlaw through Ch. 49 2017 R.S.) (authorizing the State to appeal an order granting habeas relief under article 11.072), art. 11.072 (West, Westlaw through Ch. 49 2017 R.S.). In two issues, the State complains (1) that the habeas court erred in granting relief on the ground that Garcia's counsel was not ineffective; and (2) alternatively, that the trial court erred in not addressing the issue of laches. We affirm.

          I. Background

         Garcia was born in Guatemala in 1969. When Garcia was approximately ten years old, his family immigrated to the United States. In 1987, Garcia became a lawful permanent resident.

         A. Drug Charge, Deportation, and Illegal Re-Entry

         In 2002, Garcia was indicted on a charge of possession, with intent to deliver, of four grams or more but less than 200 grams of cocaine, a first-degree felony. See Act of Jun. 15, 2001, 77 Leg., R.S., 2001 Tex. Sess. Law Serv. Ch. 1188 (amended 2009) (current version Tex. Health & Safety Code Ann. § 481.112 (West, Westlaw through Ch. Ch. 49 2017 R.S.)). On December 5, 2002, Garcia, represented by counsel, pleaded guilty to the charged offense. The trial court found Garcia guilty and pursuant to a plea agreement, imposed a sentence of ten years' imprisonment, suspended the sentence, placed Garcia on community supervision for a term of ten years, and assessed a $500 fine.

         In 2003, the United States government placed Garcia in removal proceedings pursuant to the 2002 guilty plea. An immigration judge ordered Garcia removed from the United States that same year, and Garcia was deported to Guatemala. Garcia remained in Guatemala for approximately two months before illegally entering the United States in 2004. He has remained in the United States ever since. In the meantime, the State moved to revoke Garcia's community supervision.

         B. Subsequent Arrest and Conviction for Illegal Re-Entry

         In 2013, a police officer initiated a traffic stop on the pickup truck Garcia was driving because some lights were allegedly malfunctioning. Garcia could not produce a driver's license, but he identified himself. The officer was alerted to an arrest warrant for Garcia, and he was taken into police custody. Thereafter, the state district court granted the State's motion to dismiss the motion to revoke. Garcia was tried in federal court for illegal re-entry, and he was sentenced to fifteen months' confinement. Upon completing his federal sentence, Garcia was remanded to a state correctional facility. He remains in custody to this date.

         C. Initial Habeas Proceeding

         In May 2014, Garcia filed an application for post-conviction writ of habeas corpus, alleging that his trial counsel denied him effective assistance of counsel. Garcia asserted that he "was not, at any time prior to or during the [2002 proceeding] advised that he would lose his Lawful Permanent Resident Status, he would be deported and that he would be inadmissible for re-entry into the U.S. as a direct result of pleading guilty [to the 2002 possession charge]." Garcia further contended, in a supporting affidavit attached to his habeas application, that he recalled asking his trial counsel, prior to pleading guilty, whether his guilty plea would result in his deportation and that trial counsel told him that he "would probably be okay" and that the charge "would probably not result in deportation." The State filed a response that refuted Garcia's allegations and also invoked the doctrine of laches. The habeas court summarily denied Garcia's application. A panel of this Court reversed the habeas court's denial of Garcia's application for post-conviction writ of habeas corpus and remanded the case for further proceedings. See Ex Parte Garcia, No. 13-14-00501-CR, 2016 WL 454997 at *4 (Tex. App.-Corpus Christi Feb. 4, 2016, no pet.) (mem. op., not designated for publication).

         D. Subsequent Habeas Proceeding

         On remand, Garcia amended his application for habeas corpus. He argued that Chaidez left open the possibility of ineffective assistance claims based on affirmative misadvice of former counsel. Garcia attached to his amended application: (1) a "Judgment of Conviction; Sentence Suspended; Placement on Community Supervision" signed by the trial court on January 29, 2003; (2) an affidavit that Garcia signed on May 1, 2014; (3) a "Written Waiver and Consent to Stipulation of Testimony, Waiver of Jury, and Plea of Guilty" signed by Garcia on December 5, 2002; (4) an affidavit signed by Garcia's trial counsel on July 25, 2014; (5) a transcript of a December 5, 2002 hearing; and (6) this Court's opinion in the aforementioned appeal. The State did not respond in writing to Garcia's amended application.

         In May 2016, the habeas court held an evidentiary hearing at which four witnesses testified: Garcia; Garcia's trial counsel; Garcia's sister-in-law, Gloria Espinoza; and Garcia's brother, Marvin Garcia.

         1. Garcia

         Garcia testified that he had a "very brief" conversation with his trial counsel regarding his plea and its potential consequences on his immigration status. Garcia reiterated the assertion in his affidavit that his trial counsel "said that I should be okay, be fine" regarding his immigration status.

         As for the underlying offense, Garcia explained that he "was at the wrong place, at the wrong time." Garcia did mechanic work "on the side" at a shop near his home. Garcia met a man named "Cruz Rodriguez" through this mechanic work. One day, as Garcia was leaving the shop, Rodriguez put "something" in Garcia's pocket. Garcia assumed the "something" was a monetary tip because Rodriguez was known for such gestures. However, it was cocaine. Garcia was confronted by Drug Enforcement Agency ("DEA") agents immediately upon leaving the shop. A DEA agent found the cocaine on Garcia's person. Garcia denied ownership, but he did not implicate Rodriguez out of fear.

         2. Garcia's Trial Counsel

         In 2003, Garcia's trial counsel was an assistant public defender who was appointed to represent Garcia. Garcia's trial counsel testified that he could not recall how many times he met with Garcia in either a court or an out-of-court setting. Trial counsel could not remember ever meeting with Garcia's family. He also had no independent recollection of any discussion with Garcia about immigration consequences stemming from Garcia's guilty plea. Trial counsel denied advising Garcia that his plea of guilty "would probably not result in deportation." When asked whether he was surprised by Garcia's assertion that such advice was given, trial counsel responded, "Well, it doesn't surprise me. When someone is filing an appeal, they might say whatever they want to say; but, whether I said that or not, I never would have told him that."

         3. Espinoza

         Espinoza attended the 2002 hearing where Garcia pleaded guilty. She served as a translator for Garcia and Garcia's mother, who only spoke Spanish. Espinoza recalled that Garcia's trial counsel was "in a hurry" the day Garcia pleaded guilty. Espinoza specifically recalled Garcia asking trial counsel if he "was going to be okay with his deportation and his green card, " and he answered, "Yes."

         4. Marvin

         Marvin testified that he had met Rodriguez a couple of times, and Rodriguez "seemed like he had money." Marvin believed that Garcia pleaded guilty because he was afraid of Rodriguez.

         E. Findings, Conclusions, and Habeas Relief

         In June 2016, the habeas court signed findings of fact and conclusions of law. It found, among other things,

4. Former Counsel regularly represented multiple defendants. Former Counsel did not have an independent recollection of Defendant's case. Former Counsel only remembered that it was his custom to recite the statutory admonishments to criminal defendants before a plea.
5. Applicant never met with Former Counsel outside of the Court. Applicant only met with Former Counsel in Court on two occasions, for a short period of time on each occasion.
6. On or about December 2002, Former Counsel advised Defendant that the State was offering probation for ten (10) years. Applicant inquired regarding the immigration consequences of his plea and was advised as follows:
"I asked my attorney if I would be deported if I pled guilty to the charge and got probation. He said that I would probably be okay. He said that the charge would probably not result in deportation."
7. The Applicant's sister in law was present at the hearing and overheard Former Counsel advise Applicant that he would be "okay" and that "the charge would probably not result in deportation."
8. The Applicant relied on Former Counsel's affirmative misadvise [sic] and entered a plea of guilty to the charge Possession of a Controlled Substance with Intent to Deliver on January 29 2003, in cause number 02CR 1042-E.
. . . .
10. The admonishments from the Court and the plea documents were ineffective [because] the Applicant had been previously misadvised by Former Counsel that he would be "okay" and that the "charge would probably not result in deportation."
. . . .
13. If Applicant had not been affirmatively misadvised, he would not have pled guilty. The Applicant would have requested a jury trial. Thus, but for Former Counsel's affirmative misadvise [sic] that Applicant would be "okay" and that "the charge would probably not result in deportation, " the Applicant would have pled not guilty.

         The habeas court granted the relief sought by setting aside and vacating the conviction rendered on January 29, 2003 in State of Texas v. Samuel Oswaldo Garcia, Cause No. 02-CR-1042- E, in the 357th Judicial District Court, Cameron County, Texas. The State filed no objections to the findings and conclusions. This appeal followed.

         II. Ineffective Assistance of Counsel

         In the State's first issue, it argues that Garcia is not entitled to habeas relief because the alleged misadvice he received regarding the immigration consequences of a guilty plea may not be used to advance an ineffective assistance of counsel claim. The State contends that the facts surrounding Garcia's ineffective assistance of counsel claim are "strikingly similar" to those of the habeas applicant in Padilla v. Kentucky. 559 U.S. 356, 374 (2010). Padilla held that the Sixth Amendment requires that an effective criminal defense counsel inform her client whether his plea carries a risk of deportation. See id. The U.S. Supreme Court subsequently held that the right recognized in Padilla may not be used by a party to collaterally attack a judgment of conviction that became final prior to the issuance of Padilla. Chaidez v. U.S., 133 S.Ct. 1103, 1113 (2013). This is sometimes referred to as "non-retroactivity."

         Garcia argues that his claim is not prohibited by Chaidez because it only dealt with instances where counsel provided no advice concerning immigration consequences. According to Garcia, a different rule controls situations such as his: where counsel affirmatively provided misadvice concerning the immigration consequences of a guilty plea. Garcia contends that ineffective assistance of counsel claims such as his are not barred by the non-retroactivity holding in Chaidez and that a court may grants habeas relief even if the applicant's conviction became final prior to Padilla's issuance.

         The State responds that under Chaidez and multiple Texas cases, Padilla is not retroactive in any sense, regardless of whether misadvice or no advice was rendered concerning immigration consequences of a plea.

         Before delving into the state court and federal circuit authority and how such authority affects the parties' arguments, a brief review of three seminal opinions- Teague, Padilla, and Chaidez-will help frame the first issue and the parties' arguments.

         A. Teague v. Lane, 489 U.S. 288 (1989), articulated the modern test for determining when a U.S. Supreme Court opinion announces a "new rule" of constitutional law that precludes ...


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