EX PARTE JOSE E. DUQUE
Appeal from the 184th District Court Harris County, Texas
Trial Court Case No. 1363049-A
consists of Justices Jennings, Higley, and Brown.
Carter Higley Justice
Jose E. Duque appeals from an order denying relief that he
requested in a post-conviction application for writ of habeas
corpus. In his sole issue, Appellant contends that
he was entitled to the requested habeas relief because he
received ineffective assistance of counsel at the time he
pleaded guilty to the third-degree felony offense of assault
of a family member-impeding breathing.Specifically, he
complains that his plea counsel failed to provide accurate
immigration advice during the plea proceeding, as required by
Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473
(2010), rendering his 2012 guilty plea involuntary.
original submission, we affirmed the habeas court's order
denying habeas relief. Ex parte Duque, No.
01-15-00014-CR, 2015 WL 5450530, at *9 (Tex. App.-Houston
[1st Dist.] Sept. 15, 2015, pet. granted) (mem. op., not
designated for pub.) (Duque I). The Court of
Criminal Appeals granted Appellant's petition for
discretionary review. Ex parte Duque, No.
PD-1344-15, 2016 WL 1383854, at *1 (Tex. Crim. App. April 6,
2016) (Duque II). In so doing, the court recognized
that we had issued our opinion in Duque I
"without the benefit of [its] recent opinion in Ex
parte Torres, " 483 S.W.3d 35 (Tex. Crim. App.
2016). The court vacated our judgment in Duque I,
and remanded the case to us "to consider the effect of
Torres, if any, on [our] reasoning and analysis in
this case." Duque II, 2016 WL 1383854, at *1.
a Honduran national, came to the United States in 1997. He
obtained lawful permanent resident status on March 19, 2011.
One-and-one-half years later, on September 30, 2012, Houston
Police Officer K. Truong was dispatched to the home of V.
Cruz, following a 9-1-1 call. Cruz reported to Officer Truong
that she and Appellant had an altercation regarding
Appellant's payment of child support to her. She stated
that, during the altercation, Appellant had put his hands
around her neck and choked her. Based on the incident,
Appellant was arrested and charged with the third-degree
felony offense of assault of a family member-impeding
breathing. See Tex. Penal Code Ann. §
22.01(a)(1), (b)(2)(B) (West Supp. 2016).
entered into a plea bargain with the State. In exchange for
Appellant's guilty plea, the State agreed to recommend a
sentence of two years' deferred-adjudication community
supervision and a $200 fine. Appellant was represented during
the plea proceedings by attorney, R. Rodriguez. Although the
record reflects that Appellant waived his right to have a
court reporter transcribe the plea hearing, the record does
reflect that, on October 8, 2012, in accordance with the
State's recommendations, the trial court placed Appellant
on two years deferred-adjudication community supervision and
assessed a $200 fine against him.
April 2013, the U.S. Department of Homeland Security (DHS)
initiated proceedings to remove Appellant from the United
States. DHS issued a "Notice to Appear, "
instructing Appellant to appear before an immigration judge.
notice stated that Appellant was a citizen of Honduras and
that his "status was adjusted to lawful permanent
resident on March 19, 2012." It recognized that, on
October 8, 2012, Appellant had been convicted of assault of a
family member-impeding breathing, an offense for which a
sentence of one year or more may be imposed.  It further
recognized that the offense was committed on September 30,
2012 against V. Cruz, "a person who is protected from
[Appellant's] acts by domestic or family violence
notice informed Appellant that he was "subject to
removal from the United States" because he had been
"convicted of a crime involving moral turpitude
[third-degree felony assault of a family member] committed
within five years after admission [to the United States] for
which a sentence of one year or longer may be imposed"
and because he was "an alien who at any time after entry
has been convicted of a crime of domestic violence."
See 8 U.S.C. § 1227(a)(2)(A)(i)(I),
(a)(2)(E)(i) (2007). Appellant was not eligible to have his
removal from the United
"canceled" by the Attorney General of the United
States because he had not "been an alien lawfully
admitted for permanent residence for not less than 5 years,
" nor had he "resided in the United States
continuously for 7 years after having been admitted in any
status." See 8 U.S.C. § 1229b(a) (2007).
to the provisions in Code of Criminal Procedure Article
11.072, Appellant filed an application for a post-conviction
writ of habeas corpus in which he asserted that his guilty
plea had been involuntary because he had received ineffective
assistance of counsel during the plea proceedings. Appellant
requested the habeas court "[to] set aside his plea of
guilty." Appellant alleged that his plea counsel had
been ineffective because counsel had failed to advise him
about the immigration consequences of his plea, as required
by Padilla, 559 U.S. at 374, 130 S.Ct. at 1486.
offered his affidavit in support of the application. In his
affidavit, Appellant averred that his plea counsel did not
advise him that his removal from the United States was
"virtually mandatory" as a result of his
conviction. He stated that he had been "put in removal
proceedings in the immigration court as a result of this
conviction." He averred that he "found out during
the removal proceedings in the immigration court that I was
not eligible to apply for any realistic form of discretionary
relief." Appellant testified that his plea counsel had
"not explain[ed] to me the legal implications that my
conviction was going to have on the different forms of
discretionary relief that are available in removal
proceedings." He stated, "[T]he immigration Judge
ordered my removal on March 24th, 2014." Appellant
concluded his affidavit by averring that, if he had known
either that his guilty plea would make his deportation
virtually mandatory or that he would not qualify for
discretionary relief, he would not have pleaded guilty but
instead would have insisted on going to trial.
also offered the affidavit from his plea counsel, R.
Rodriguez, in support of his habeas application. In his
affidavit, Rodriguez stated that, during the plea process, he
did not inform Appellant that he was subject to
"automatic deportation" if he pleaded guilty to
assault of a family member-impeding breathing. Rodriguez
averred that the reason he had not informed Appellant of this
information was because he had not been aware at the time of
the plea that assault of a family member-impeding breathing
was considered a crime involving moral turpitude and that, if
convicted, Appellant would be automatically deported.
Rodriguez stated that he also had not known that a conviction
for domestic violence would subject Appellant to automatic
deportation. Rodriguez testified that he did not inform
Appellant that a conviction of a crime involving moral
turpitude "within the seven (7) year period after
admission would prevent a 'Legal Permanent Resident'
to apply for 'Cancellation of Removal and Adjustment of
Status' during removal proceedings" because he had
also not been aware of that information.
habeas court conducted a hearing on Appellant's habeas
application. At the hearing, Appellant presented the
testimony of an immigration law expert. The expert testified
that, given the nature of his conviction and the period of
time that he had been a permanent legal resident, the only
avenue for Appellant to remain in the United States would be
to prove "exceptional and extremely unusual hardships to
[Appellant] and [his] family, " a "virtually
impossible" standard to meet.
also offered the testimony of his plea counsel, Rodriguez, at
the hearing. Rodriguez stated that he had been appointed to
represent Appellant in the underlying case. On the day of the
plea proceedings, Rodriguez met with Appellant in the
"holdover cell" next to the courtroom. Rodriguez
testified that the meeting was "fairly lengthy, "
lasting 30 minutes to one hour. During the meeting, Rodriguez
reviewed the facts of the case with Appellant. After speaking
with the prosecutor, Rodriguez informed Appellant that the
State would recommend "a two-year deferred adjudication
probation if he were to decide to plea." Rodriguez told
Appellant that he had "an option to go to trial" or
he could plead guilty in exchange for the punishment the
State was offering. Rodriguez stated, "[Appellant]
decided to go ahead and plead and accept the two-year
deferred adjudication probation."
confirmed that he did not advise Appellant that "the
crime to which he was pleading guilty was considered for
immigration purposes a crime involving moral turpitude"
because he was not aware of that information. Rodriguez also
confirmed that, because he lacked knowledge about the issue,
he did not inform Appellant that he would be placed into
removal proceedings as a result of pleading guilty. Rodriguez
testified that, if he had known that removal proceedings
would be initiated against Appellant as a result of his
guilty plea, he "would have advised [Appellant] that he
probably would consider going to trial on this case. . . . I
would not have given him advice of taking a two-year deferred
testified that his representation of Appellant was not
"ineffective in terms of my representation on the charge
that he had"; however, "looking back, not informing
[Appellant] of the specific consequences of his plea, because
I was unaware of the crime being a crime of moral turpitude
and that he would be put in automatic proceedings, that could
be considered ineffective." On cross- examination,
Rodriguez agreed that he had told Appellant that "he
could be deported."
Rodriguez's testimony, the habeas judge recalled that
during the plea proceedings she had inquired whether
Appellant was a permanent resident and had then informed
Appellant that he could be deported. Rodriguez confirmed that
the judge had informed Appellant, during the plea
proceedings, that he could be deported. The habeas judge
further noted that she had written on Appellant's plea
papers as follows: "Per attorney, [defendant] is
permanent resident. Defendant understands he could be
also testified at the hearing through a Spanish interpreter.
Appellant stated that he was residing in the county jail, and
before being brought there, had been in an immigration
detention facility. Appellant testified that he was 35 years
old and had been in the United States for 17 years. He
confirmed that, other than the offense involved in this case,
he had never been convicted of a crime.
testified that he has a wife and four children. He asked the
habeas court "[to] allow me a second opportunity because
my children are minors and they do need me because my wife
does not work."
cross-examination, Appellant acknowledged that his plea
counsel, Rodriguez, had informed him that, if he pleaded
guilty, he could be deported. However, Appellant indicated
that Rodriguez had not told him that immigration authorities
would arrest him and initiate deportation procedures.
State presented the testimony of the police officer, K.
Truong, who responded to the 9-1-1 call made regarding
Appellant's assault on the complainant, V. Cruz. Officer
Truong testified that, when he arrived at the scene, he spoke
to Cruz. He described her as being "terrified."
Cruz indicated to Officer Truong that she and Appellant had
an altercation because Appellant wanted to stop paying child
support. She reported that Appellant had choked her. She said
that she tried to call 9-1-1, but Appellant had grabbed her
phone. She was able to push Appellant away and leave the
Truong also testified that Cruz's eight-year-old son was
also at the scene. He stated that the child was crying,
afraid, and clinging to his mother. The child corroborated
his mother's story, telling Officer Truong that his
father, Appellant, had put his hands around his mother's
neck. He said that Appellant grabbed his mother's cell
phone, but she was able to push him away, and run out of the
Truong also testified that he saw "very visible"
markings on Cruz's neck. He stated that Appellant was
"upset" and "drunk" when he arrested him
State also offered the testimony of the assistant district
attorney, T. Ballengee, the prosecutor at Appellant's
plea proceedings. Ballengee testified that he reviewed the
file and saw that he had written "on the file that
Padilla warnings were given." He stated,
"The only time that I would write Padilla
warnings were given [in the trial court] was if it was
specifically stated in the plea that the defendant would, in
fact, be deported, not that they may [be deported]."
Ballengee recalled that, at the time of the plea, he had
thought it was odd for Appellant to take deferred
adjudication when "we were telling him that he was going
to be deported."
Ballengee testified that the complainant, Cruz, was
cooperative with the prosecution. And he stated that Cruz had
"requested probation for [Appellant] and
end of the hearing, the habeas court indicated that it was
denying Appellant's requested habeas relief. The court
later signed an order denying Appellant's
"application for writ of habeas corpus." The habeas
court adopted the State's proposed findings of fact and
conclusions of law, which included a statement that, in
making the findings of fact and conclusions of law, the court
had "considered the application for writ of habeas
corpus, the affidavits attached to the application, the
evidence presented at the writ hearing, and official court
records in the above-captioned cause."
The habeas court's findings of fact included the
1. The Court finds that the applicant was convicted on
8, 2012, out of the 184th District Court, Harris County,
Texas, in cause number 1363049, where the applicant entered a
plea of guilty to the third degree felony offense of
Assault-Family Member/Impeding Breath. However, the Court
withheld a finding of guilt and the applicant was sentenced
to a 2 year Deferred Adjudication and a $200.00 fine. . . .
. . . .
8. The Court finds, based on the application, that the
applicant is a legal permanent resident in the United States.
9. The Court finds based on the court reporter's record
that the applicant was properly admonished and informed of
the potential immigration consequences of his plea consistent
with Tex. Code Crim. Proc. Art. 26.13.
10. The Court finds, based on the clerk's record, that on
the face of the applicant's plea agreement with the ...