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Ex parte Duque

Court of Appeals of Texas, First District

September 14, 2017


         On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1363049-A

          Panel consists of Justices Jennings, Higley, and Brown.


          Laura Carter Higley Justice

         Appellant Jose E. Duque appeals from an order denying relief that he requested in a post-conviction application for writ of habeas corpus.[1] 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.[2]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.

         On 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.

         We affirm.


         Appellant, 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).

         Appellant 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.

         In 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.

         The 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. [3] 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 laws."

         The 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

         States "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).

         Pursuant 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.

         Appellant 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.

         Appellant 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.

         The 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.

         Appellant 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."

         Rodriguez 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 adjudication probation."

         Rodriguez 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."

         During 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 deported."

         Appellant 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.

         Appellant 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."

         On 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.

         The 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 house.

         Officer 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 house.

         Officer 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 that day.

         The 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."

         Finally, Ballengee testified that the complainant, Cruz, was cooperative with the prosecution. And he stated that Cruz had "requested probation for [Appellant] and treatment."

         At the 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 following:
1. The Court finds that the applicant was convicted on October
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 ...

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