Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 357th District Court of Cameron County,
Justices Rodriguez, Benavides, and Hinojosa
LETICIA HINOJOSA Justice
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.
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.
Drug Charge, Deportation, and Illegal
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.
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.
Subsequent Arrest and Conviction for Illegal
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.
Initial Habeas Proceeding
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).
Subsequent Habeas Proceeding
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
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.
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
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
Garcia's Trial Counsel
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."
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,
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
Findings, Conclusions, and Habeas Relief
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
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.
Ineffective Assistance of Counsel
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."
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
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.
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.
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