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Ex parte Aguilera

Court of Appeals of Texas, First District

January 9, 2018


         On Appeal from the County Criminal Court at Law No. 13 Harris County, Texas Trial Court Cause No. 1598995-A

          Panel consists of Justices Keyes, Brown, and Lloyd.


          Evelyn V. Keyes Justice

         Appellant, Jose Luis Aguilera, appeals from the denial of his post-conviction application for a writ of habeas corpus filed under Texas Code of Criminal Procedure art. 11.09. Aguilera, in his sole issue, contends that his plea counsel's failure to provide accurate immigration advice, required under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), resulted in ineffective assistance of counsel and rendered his 2013 guilty plea involuntary. We affirm.


         Aguilera, a Mexican national and lawful permanent resident of the United States, was charged in 2009 with the Class A misdemeanor offenses of assault of a family member, under trial court cause number 1598995, and interfering with a 9-1-1 call, under trial court cause number 1598996, involving his then wife, Amanda Aguilera. After the incident, Aguilera fled the scene and was not arrested until November 25, 2012.

         Following his arrest, Aguilera's sister contacted Cesar Escalante, an attorney, on November 26, 2012, to solicit legal assistance on behalf of Aguilera. Escalante's employee took the call and wrote "resident" on the intake message, indicating that the client was a lawful permanent resident as opposed to a citizen. Escalante testified that he and Aguilera met on or around November 30, 2012, and spoke only in Spanish. During the initial meeting, Escalante discussed the facts surrounding the alleged assault and 9-1-1 call-interference charges with Aguilera. When Escalante told Aguilera that he needed to contact his ex-wife, Aguilera told him not to contact Amanda because they were not getting along, that they had gotten divorced because of this incident, and that she wanted him to go to jail.

         During this meeting, Aguilera and Escalante discussed the possibility of pursuing deferred adjudication with a guilty plea. Escalante testified that he informed Aguilera about the immigration consequences of this course of action, including the potential for deportation, exclusion, denial of re-entry, and denial of citizenship. He also stated that he suggested that Aguilera contact an immigration attorney to assist with any immigration ramifications stemming from the case. Escalante further testified that he also offered to refer Aguilera to an immigration lawyer. Escalante confirmed that he had made it clear to Aguilera that a deferred adjudication probation would be the same as a conviction for immigration purposes.

         In contrast, Aguilera claims that this part of the conversation never took place, that he never told Escalante not to contact his ex-wife, and that Escalante neither mentioned any immigration consequences nor advised him to contact an immigration attorney. According to Aguilera, Escalante only mentioned that pleading guilty would result in no jail time.

         On December 6, 2012, the State offered a plea bargain in Aguilera's case to Escalante, including one year of deferred adjudication for the assault charge, and dismissing the interference charge. Escalante testified that he discussed the plea deal with Aguilera on that same day, and again admonished his client about potential immigration issues that could result. Escalante noted that upon presentation with the plea deal, Aguilera indicated that he wanted to plead guilty. Neither Escalante nor the State ever spoke to Aguilera's ex-wife at any point. Escalante reset the case.

         On January 8, 2013, Aguilera appeared in court where he formally pleaded guilty to the assault charge, in exchange for placement on deferred adjudication for one year and an affirmative finding of family violence. On the plea paperwork, Escalante did not sign off as interpreter, despite the fact that he had communicated with his client exclusively in Spanish, and the presiding judge failed to check a box indicating that there had been immigration admonishments made. However, Escalante testified that the judge did so admonish Aguilera in court and that Escalante had interpreted them for Aguilera. Additionally, the acknowledgment regarding immigration consequences of a guilty plea was not included with the plea paperwork. Nevertheless, Escalante noted that he had gone over the immigration consequences again in court before the plea hearing with Aguilera and advised him to consult with an immigration attorney because Aguilera would be subject to deportation, to which Aguilera replied that he understood and that he would do so later.

         After signing the plea paperwork and at some point into the one-year deferred adjudication period, Aguilera called Escalante when he learned that the State changed the stipulations of the plea agreement, replacing anger management classes with domestic violence counseling. Escalante then noted that Aguilera contacted him later after that call, requesting a referral to an immigration attorney, and Escalante gave it to him. Escalante testified that even though he had advised Aguilera throughout his representation to contact an immigration attorney, Aguilera had waited until after the plea to request a referral because he had told Escalante that he would deal with it later.

         On June 27, 2016, Aguilera filed an application for a writ of habeas corpus under Texas Code of Criminal Procedure article 11.09 through his habeas counsel, David Breston. In his application, Aguilera alleged only that Escalante had provided ineffective assistance by neglecting to advise him about the immigration consequences of his guilty plea to assault of a family member under Padilla, thus, rendering his plea involuntary. Aguilera's habeas counsel also filed a memorandum of law stating that, while his client had completed his term of deferred adjudication and was not presently confined or being deported, Aguilera was suffering collateral consequences from his guilty plea because it subjected him to removal proceedings if he traveled outside the country and returned and because it frustrated his attempt at naturalization. Escalante submitted an affidavit stating that he had, in fact, issued appropriate verbal admonishments to Aguilera surrounding the immigration consequences of his guilty plea.

         The Habeas Court's Hearing and Findings of Fact and Conclusions of Law

         The habeas court held a hearing on Aguilera's writ, starting on August 24, 2016, with the above background testimony presented by Aguilera and Escalante. Aguilera testified that had he been properly admonished of the immigration consequences of pursuing deferred adjudication and pleading guilty, he would have elected to go to trial.

         At the hearing, Aguilera's habeas counsel, Breston, also attempted to embark on lines of questioning about areas other than immigration admonishments in which Escalante allegedly provided ineffective assistance to Aguilera but that were not raised in his habeas application. Breston attempted to question Escalante about why he did not reach out to Aguilera's ex-wife Amanda, the victim of the alleged assault, or complete additional discovery. The habeas court stated that these lines of questioning were irrelevant to the matter at hand. The habeas court found that Aguilera had not proven, by a preponderance of the evidence, that Escalante was ineffective in regard to the advice he gave Aguilera about immigration consequences and, thus, denied the writ.

         After the habeas court orally denied Aguilera's writ, it ordered the State to submit proposed findings of fact and conclusions of law. The court signed an order denying Aguilera's habeas application, and Aguilera filed a notice of appeal. The State also proposed the following findings of fact and conclusions of law:

         Findings of Fact

1. The Court finds that the applicant was sentenced to one (1) year deferred adjudication for the misdemeanor offense of assault [of a] family member out of County Criminal Court at Law No[.] 13, Harris County, Texas, on January 8, 2013, in cause no. 1598995.
2. The Court finds that the applicant's period of community supervision expired, the proceedings against the applicant were dismissed, and the applicant was discharged from community supervision on February 12, 2014.
3. The Court finds that the applicant did not file a direct appeal in the instant case.
4. The Court finds that the applicant filed an application for writ of habeas corpus, pursuant to Tex. Code Crim. Pro. art. 11.09, in ...

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