Opinion
01-20-00077-CR
01-25-2022
EX PARTE TAI THUAN HUYNH
Do not publish. TEX. R. APP. P. 47.2(b).
On Appeal from County Court at Law No. 2 Bell County, Texas Trial Court Cause No. 2C14-10128
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
Appellant Tai Thuan Huynh ("Appellant") pled guilty to the offense of possession of a controlled substance less than 28 grams, a Class A misdemeanor. The trial court sentenced him to three days' confinement, ordered him to pay a fine of $550 and court costs of $299, and suspended his driver's license. Appellant later applied for a writ of habeas corpus seeking to withdraw his guilty plea. After a hearing, the habeas court denied Appellant's writ and this appeal ensued. Appellant argues the habeas court erred in denying his writ because (1) his trial counsel rendered ineffective assistance of counsel, and (2) the trial court failed to admonish appellant about the immigration consequences of his plea. Appellant thus claims his plea of guilty for a misdemeanor drug possession charge is void.We affirm.
The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas pursuant to its docket-equalization powers. See Misc. Docket No. 19-9091 (Tex. Oct. 1, 2019); see also Tex. Gov't Code § 73.001 ("The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.").
Background
In 2014, Appellant was arrested for possession of a controlled substance less than 28 grams, a Class A misdemeanor. According to the arresting officer's probable cause affidavit, Appellant and a friend drove into Miller Park in Temple, Texas, at 3:15 a.m. in a Toyota Camry. Appellant exited the car on the driver's side and his friend on the passenger's side. At that point, Appellant and his friend encountered the officer and told him they were going for a jog. The officer advised them the park was closed and asked Appellant for consent to search the car. Appellant consented. The officer found a cold, opened container of "Four Loco" (an alcoholic beverage) in the center console, one tablet of alprazolam in a small compartment to the left of the steering wheel, and a marijuana blunt and marijuana under the front passenger's seat. Appellant and his friend each claimed the drugs belonged to the other. Based on the location of the items in the car, the officer charged Appellant with "Possession of Controlled Substance-Group 3" (a Class A Misdemeanor) and his friend with "Possession of Marijuana Under 2 oz." Later that same day, Appellant waived his right to court-appointed counsel in writing.
Appellant testified via affidavit that the officer told him and his friend to get out of the car.
Appellant handwrote, "No, I don't want attorny" [sic] on the "Waiver of Request for Court Appointed Counsel" form.
On March 9, 2015, Appellant signed another "Waiver of Attorney" form. Two weeks later, on March 25, 2015, attorney Adam Soorholtz was appointed to represent Appellant. Also on March 25, 2015, Appellant signed a plea agreement form that waived his right to a jury trial and pre-sentence report. By signing the form, Appellant acknowledged, among other things, that he was aware of the full range of punishment by law and that a plea of guilty for a non-U.S. citizen may result in deportation or denial of naturalization. Appellant entered a plea of guilty and the trial court sentenced him to three days' confinement in the Bell County jail, ordered him to pay a fine of $550 and court costs of $299, and suspended his driver's license ("2015 Conviction"). Appellant was given credit for three days' time served. Appellant's Certificate of Right to Appeal states that (1) the case "is a plea-bargain case, and the defendant has NO right of appeal," and (2) "the defendant has waived the right of appeal."
Adam Soorholtz was not the first attorney appointed to represent Appellant. The form appointing Soorholtz, entitled "Notice to Indigent Defense Department," states: "Def. lives out of country and needs his case taken care of today & original atty can't be here today." The form also states the court "removed a previous appointed attorney." The record reflects Appellant's original attorney was unavailable due to health reasons.
The admonishment on the form states:
The Defendant acknowledges that if he/she is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, exclusion from admission to this country, or denial of naturalization under federal law.
Under Texas Penal Code section 12.21, "[a]n individual adjudged guilty of a Class A misdemeanor shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement." Tex. Penal Code § 12.21.
The Writ Application and Hearing
Appellant is a citizen and native of Vietnam and a lawful permanent resident of the United States. He came to the United States when he was thirteen years old "through his mother's petition that was filed by his aunt." In February 2017, he traveled to Vietnam to accompany his father from Vietnam to the United States. His father was traveling to the United States "based on his wife, [Appellant's] mother, [immigration] petition that was filed for her benefit by her mother." On Appellant's return trip to the United States in March 2017, Appellant was detained by Customs and Border Protection Officers at the "Houston International Airport"and denied admission into the country because of his 2015 Conviction. Appellant was then placed in removal proceedings before an immigration court in Dallas, Texas.
Presumably, this refers to the George Bush Intercontinental Airport.
Appellant's counsel argued during the writ hearing that U.S. Immigration and Customs Enforcement released Appellant from detention because a Dallas bishop intervened and pleaded for his release. Appellant was detained for two months.
Subsequently, on March 7, 2019, Appellant filed an application for writ of habeas corpus seeking to withdraw his guilty plea for the 2015 Conviction, contending (1) he was denied effective assistance of counsel, (2) his plea was not made voluntarily, knowingly, or intentionally, and (3) there was insufficient evidence to support his plea. In the affidavit attached to his writ application, Appellant avers he told the arresting officer and his attorney that the alprazolam tablet in the car was not his and he had nothing to do with it. According to Appellant, he and his attorney had [a] communication problem because of my poor English and I don't think that he also understood the things or explanations that I was trying to make to him.
The State of Texas contends Appellant abandoned his claim of insufficient evidence during the writ hearing. Appellant does not raise any claim of insufficient evidence on appeal. As such, we do not address that issue.
The probable cause affidavit states the arresting officer found the tablet in a compartment to the left of the steering wheel, while Appellant refers in his writ affidavit to drugs found in the glove compartment.
In his writ application, Appellant asserted he was a passenger in the car when the authorities stopped him, but in a prior statement and during the writ hearing, he stated he was the driver. On appeal, Appellant again confirms he was driving the car.
We never discussed my immigration status in the country or what will happen to me if I plead guilty to the charge. However, he asked me to sign for back time and that I will not go back to jail or be on any type of probation. So I agreed and signed the paper. When we went to the judge, I did not understand what the judge was saying to me and I did not have anyone to translate for me. I was just following what my lawyer was asking me to do when we were before the judge.
Now, when I travelled back to Vietnam to bring my father, on our way back, I was stopped and questioned in Houston by customs and border patrol agents. I was asked to go and see [i]mmigration [o]fficers in Dallas which I did and they put me on deportation proceedings and detained me because they told me, that I was convicted of [a] drug offense. Now, I cannot do anything in this country and I may be removed someday back to Vietnam.
If I had known that this will be the result of my plea of guilty, I would not have agreed to plea and I would have gone to [trial] before the jury and I would have told them how everything happened . . . .
Appellant claims that while U.S. Immigration and Customs Enforcement ("ICE") "has withdrawn [his] case from the Immigration Court," he remains "amenable to removal whenever ICE chooses to do so." He also argues that he "cannot naturalize to be a U.S. citizen" because of his 2015 conviction.
Appellant conceded during the writ hearing on November 20, 2019, that "no one is, actively, trying to deport [him] at this time."
During the writ hearing, Appellant testified that he moved to the United States when he was thirteen years old. He attended middle school and some high school in Temple, Texas, although he did not graduate. All of his classes were taught in English. He testified he understands some English but that when he appeared in court in 2015, his English was "poor." He did not have or request an interpreter when he entered his guilty plea in 2015. According to Appellant, he did not understand the papers he signed.
When asked whether he got the help of a translator "in your own language when you came to court" (presumably for another appearance), Appellant responded, "I remember vaguely, but it was on the telephone."
Appellant's former counsel, Adam Soorholtz ("Soorholtz"), also testified at the writ hearing. He testified that:
• The trial court appointed him to represent Appellant.
• Prior to entering Appellant's guilty plea, he and Appellant went over "the customary paperwork" and he explained Appellant's rights to him. Appellant had "somewhat" of a difficult time communicating with him.
• Appellant initially waived his right to have counsel appointed and signed a document waiving the right to jury trial and accepting a plea bargain.
• Appellant applied for and completed a payment plan for the assessed fine and costs, indicating he was able to comply with all the requests made of him, orally and in print.
• When he represented Appellant, the court asked Appellant questions about his immigration status during the plea proceeding. The trial court judge asked whether Appellant was a United States citizen and whether he wanted to consult with an immigration attorney. Appellant stated he did not want to consult with another attorney and wanted to proceed with the plea that day.
• Appellant indicated he had some difficulty understanding or communicating with Soorholtz about the nature of a plea bargain and criminal consequences during their conversations in the hall, but not when they were in open court. Soorholtz rephrased or tried to explain when necessary, and they "were able to accomplish and reach an understanding on the matters as they arose in the explanation phase."
• Appellant wanted to pay money rather than go to jail, and he was worried that if he said something wrong the judge would throw him in jail despite the plea bargain. Appellant had trouble understanding the credit-for-time-served scenario but ultimately understood he would have to pay a fine, courts costs, and attorney fees for his appointed attorney.
• He did not try to get Appellant a translator but rephrased when necessary so Appellant could understand: "I believed at the time that we had reached an understanding that he spoke sufficient English for us to understand the court process and . . . by the time we finished the plea bargain sign-up-process, [Appellant] had an accurate and intelligent reflection of what the justice system was for him and what his outcome would be." He and Appellant went over the documents "paragraph for paragraph" and Appellant "read each individual word."
• He assumed Appellant's original attorney had explored with Appellant the immigration consequences of the charge and plea. He gave Appellant similar immigration advice.
• He has "some working knowledge of immigration consequences." He knew about the consequences of the plea that Appellant entered. He stated it could lead to a denial of naturalization.
• He disagreed with Appellant's habeas counsel's statement during the writ hearing that deportation was automatic due to Appellant's plea. He believed the trial court judge's admonitions regarding the consequences of the plea were sufficient. He also gave Appellant the specific advice he gives in every case when he suspects his client is not a citizen. He generally advises clients to seek immigration advice regarding the criminal consequences of a plea, and that a judge may use the conviction in immigration proceedings to detain or deport them. He could not recall specifically if he gave Appellant that specific advice, but "based on the circumstances, I would have given that advice."
Appellant's habeas counsel argued during the writ hearing that given the nature of the plea, deportation is automatic, but he did not provide any authority in support of his argument.
Exhibit 1 offered during the writ hearing was an affidavit executed by Soorholtz. It stated in pertinent part:
I have a standard recitation of immigration advice that I give to all clients that I suspect may lack legal status, which goes[, ] "I am not an immigration attorney. However, as a criminal defense attorney, I am required to advise you that there could be potential immigration consequences as a result of this guilty plea. This criminal conviction can be seen by an immigration judge, who can look deeper into the matter and consider it in determining whether to detain or deport you."
Soorholtz also testified in his affidavit that:
• He assumed Appellant's first attorney issued a similar admonishment and found Appellant's English satisfactory.
• While Appellant argued that language deficiencies prevented him from understanding the plea bargain process, Appellant had a prior conviction for criminal trespass for which he pled guilty in February 2013, and no translator was appointed.
• When speaking with Appellant, Appellant "did not indicate that there was such depth of misunderstanding that he could not proceed."
• No grounds existed to challenge the traffic stop leading to Appellant's drug charges.
• He determined that setting the charge for possession of a controlled substance for trial likely would lead to additional charges under the Health and Safety Code (for the marijuana) and the Alcoholic Beverage Code (for the open container).
At the conclusion of the writ hearing, the habeas court took the matter under advisement.
On November 22, 2019, the habeas court issued an order denying Appellant's application for writ of habeas corpus. Although Appellant requested findings of fact and conclusions of law, the clerk's record lacks indication the habeas court made findings of fact or conclusions of law.
Standard of Review
A defendant may attack the validity of his conviction for a misdemeanor offense via habeas corpus if he is (1) confined or restrained due to the conviction, or (2) no longer confined, but subject to "collateral legal consequences resulting from the conviction." Ex parte Aguilera, 540 S.W.3d 239, 245-46 (Tex. App.- Houston [1st Dist.] 2018, no pet.) (citing State v. Collazo, 264 S.W.3d 121, 125-26 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd)); see also Tex. Crim. App. Proc. arts. 11.09, 11.21, 11.22. An applicant for post-conviction writ of habeas corpus must prove his claim by a preponderance of the evidence. Ex parte Aguilera, 540 S.W.3d at 246.
The confinement/restraint element is satisfied by "immigrants who face consequences such as deportation arising from their misdemeanor convictions." See Ex Parte Lakhani, No. 01-16-00025-CR, 2016 WL 828073, at *2 (Tex. App.-Houston [1st Dist.] Mar. 3, 2016, pet. ref'd) (mem. op., not designated for publication) (citing Phuong Anh Thi Le v. State, 300 S.W.3d 324, 326 (Tex. App.-Houston [14th Dist.] 2009, no pet.)).
In reviewing a habeas court's ruling on an application for writ of habeas corpus, we "must view the evidence in the record in the light most favorable to the judge's ruling and must uphold that ruling absent an abuse of discretion." Diamond v. State, 613 S.W.3d 536, 544 (Tex. Crim. App. 2020). We give "almost total deference" to the factual findings of the habeas court if supported by the record, "especially when those findings are based on credibility and demeanor." Id. We must defer to "any implied findings and conclusions supported by the record." Ex parte Aguilera, 540 S.W.3d at 246; see also Ex parte Besada-Peru, No. 14-17-00193-CR, 2018 WL 542238, at *3 (Tex. App.-Houston [14th Dist.] Jan. 25, 2018, pet. ref'd) (mem. op., not designated for publication) ("We infer all implied findings of fact that are necessary to support the habeas court's ruling.").
Analysis
Appellant argues the habeas court erred in denying his application for writ of habeas corpus because he received ineffective assistance of counsel and the trial court failed to admonish him about the immigration consequences of his plea. The State responds that Appellant failed to demonstrate his counsel rendered ineffective assistance of counsel or that he was prejudiced by any ineffective assistance. The State further argues Appellant did not establish the trial court failed to admonish him about the immigration consequences of his plea.
The determination of whether a defendant received effective assistance of counsel turns on the facts of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel." Id. (citing Ex Parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991)). Further, "[t]here is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)).
The Court of Criminal Appeals has held the United States Supreme Court's two-pronged test under Strickland v. Washington, 466 U.S. 668 (1984), applies to challenges of guilty pleas based on ineffective assistance of counsel. Johnson v. State, 169 S.W.3d 223, 225 (Tex. Crim. App. 2005); see also Ex parte Aguilera, 540 S.W.3d at 246; Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd). Under the first Strickland prong, counsel's performance is deficient if he does not provide a noncitizen client with "accurate legal advice about the 'truly clear' consequences of a plea of guilty to an offense that, as a matter of law, renders him 'subject to automatic deportation.'" Ex parte Aguilera, 540 S.W.3d. at 247 (quoting Padilla v. Kentucky, 559 U.S. 356, 360, 369 (2010))."[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. The scrutiny of counsel's performance must be "highly deferential" to the lower court, and "every effort must be made to eliminate the distorting effects of hindsight." Ex parte Okere, 56 S.W.3d 846, 855 (Tex. App.-Fort Worth 2001, pet. ref'd).
In Padilla, the Supreme Court held an attorney for a criminal defendant is required by the Sixth Amendment to "inform her client whether his plea carries a risk of deportation." Padilla v. Kentucky, 559 U.S. 356, 372, 374 (2010); see also Ex parte Aguilera, 540 S.W.3d 239, 247 (Tex. App.-Houston [1st Dist] 2018, no pet.).
The second Strickland prong requires proof of prejudice. "[D]etermining prejudice . . . requires an applicant to show a reasonable probability that counsel's errors affected the outcome of the plea proceedings, in the sense that, but for counsel's errors, the applicant would have rejected the plea bargain and instead pursued a trial." Ex parte Aguilera, 540 S.W.3d at 247 (quoting Ex parte Torres, 483 S.W.3d 35, 46 (Tex. Crim. App. 2016)) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). "[A]n applicant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ex parte Okere, 56 S.W.3d at 855 (citing Strickland, 466 U.S. at 694). The applicant must show his counsel's errors were serious enough to deprive him of a fair trial. Id. The central question is "whether it would have been rational under the circumstances for the applicant to reject the plea bargain." Ex parte Aguilera, 540 S.W.3d at 249 (citing Ex parte Obi, 446 S.W.3d at 596). "In the context of a collateral challenge to a guilty plea, the focus of prejudice is on 'whether counsel's constitutionally ineffective performance affected the outcome of the plea process,' and on whether a defendant has shown that 'but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Ex parte Torres, 483 S.W.3d at 43 (quoting Hill, 474 U.S. at 59).
In conducting a prejudice analysis, courts may consider "the evidence supporting an applicant's assertions, the likelihood of his success at trial, the risks the applicant would have faced at trial, the benefits received from the plea bargain, and the trial court's admonishments." Id. at 48. In addition, we consider four factors to determine whether an appellant's insistence on trial "would have been rational under the circumstances:"
(1) whether the applicant placed a particular emphasis on the immigration consequences of a plea in deciding whether or not to accept it; (2) whether there was evidence of the applicant's guilt, (3) whether the applicant had any factual or legal defenses, and (4) how the plea deal compared to the penalties risked at trial.Ex parte Aguilera, 540 S.W.3d at 249 (citing Ex parte Torres, 483 S.W.3d at 48-49; Ex parte Obi, 446 S.W.3d at 597). The proponent must prove both Strickland prongs-that is, deficient performance by the attorney and resulting prejudice-to be entitled to habeas corpus relief. Thompson, 9 S.W.3d at 813.
1. Ineffective Assistance
Appellant complains his counsel did not consult with an immigration attorney, seek advice from an immigration attorney, or otherwise discuss with Appellant the immigration consequences of his guilty plea. During the writ hearing, Soorholtz testified that the trial judge asked Appellant whether he wanted to consult with an immigration attorney before entering his plea, and Appellant declined. Soorholtz also testified that he has a "working knowledge of immigration consequences" and that he attended continuing legal education events concerning the immigration consequences of criminal convictions. And in his writ affidavit, he enumerated the immigration advice he gives all clients who may lack legal status:
I have a standard recitation of immigration advice that I give to all clients that I suspect may lack legal status, which goes[, ] "I am not an immigration attorney. However, as a criminal defense attorney, I am required to advise you that there could be potential immigration consequences as a result of this guilty plea. This criminal conviction can be seen by an immigration judge, who can look deeper into the matter and consider it in determining whether to detain or deport you."
Under Padilla v. Kentucky, "if immigration law regarding deportation is 'not succinct and straightforward,' defense attorneys must merely advise their clients that they could be deported, but when the law is 'truly clear' that the defendant would be deported if convicted, defense attorneys have a duty to 'give correct advice [that] is equally clear.'" Ex parte Garcia, 547 S.W.3d 228, 229 (Tex. Crim. App. 2018). During the writ hearing, Appellant's habeas counsel argued that the consequence of Appellant's plea, entered while Soorholtz was representing him, is "automatic deportation;" thus, the legal advice Soorholtz gave Appellant regarding deportation, that it was not certain deportation would result from the plea, was wrong. Soorholtz disagreed. He testified "the immigration landscape was continually changing, and it was not certain that deportation would result."
Title 8, United States Code section 1227(a)(2)(B)(i) states:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.8 U.S.C. § 1227 (a)(2)(B)(i). Title 21, United States Code section 802(6) defines "controlled substance" as "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter." 21 U.S.C. § 802(6). Alprazolam is a Schedule IV controlled substance "under part B of this subchapter." See 21 U.S.C. § 812(b)(4), (c); see also U.S. Department of Justice Drug Enforcement Administration at https://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf (last visited January 18, 2022).
Appellant pled guilty to possession of a controlled substance less than 28 grams, a Class A misdemeanor, based on the alprazolam tablet the officer found in the Toyota. Appellant was thus "convicted of a violation" of a law or regulation "relating to a controlled substance" making him "deportable." See 8 U.S.C.A. § 1227 (a)(2)(B)(i). The deportation consequences of Appellant's guilty plea were "truly clear" and trial counsel's duty to advise Appellant of such consequences "equally clear." See Ex parte Torres, 483 S.W.3d at 44 (citing Padilla, 559 U.S. at 369). Trial counsel's advice to Appellant that potential immigration consequences could result from his guilty plea was insufficient. And his failure to give accurate advice was not justified by his belief that deportation was "not certain." See id. (holding trial counsel's constitutional duty to advise his client that removal was "a virtual legal certainty" did not "wane merely because counsel believe[d] the probability of actual removal [was] uncertain.").
The Court of Criminal Appeals held in a similar situation that a showing of "deficient performance" was established. In Ex parte Torres, the defendant, a Mexican national, was arrested and charged with robbery and possession of cocaine. 483 S.W.3d at 38. In exchange for guilty pleas for both charges, the State agreed to recommend deferred adjudication for both convictions. Id. at 39. Several days after the plea hearing, the defendant was arrested on separate charges. Id. ICE detained him and began removal proceedings. Id.
The defendant was found to be in possession of both cocaine and marijuana. Ex parte Torres, 483 S.W.3d 35, 38 (Tex. Crim. App. 2016).
The defendant filed an application for a post-conviction writ of habeas corpus, challenging the validity of his guilty plea based on ineffective assistance of counsel. Id. The defendant complained that, even though his attorney knew he lacked citizenship status, his attorney never advised him his plea would result in mandatory deportation. Id. His attorney testified during the writ hearing that he admonished the defendant "from the get-go" that "because of his status as a noncitizen, [he] should consult an immigration lawyer." Id. at 40. He testified that "although he had advised [defendant] that he could be deported as a result of his guilty plea, he did not affirmatively tell [defendant] that he would be deported . . . ." Id.
The Court of Criminal Appeals found defense counsel had not satisfied Padilla:
In Ex parte Torres, the trial court denied the application for writ of habeas corpus but the court of appeals reversed, finding the defendant proved both the deficient performance and prejudice prongs of Strickland. 483 S.W.3d at 41-42. The Court of Criminal Appeals reversed the appellate court. Id. at 42, 51. Even though it found defendant's trial counsel had rendered ineffective assistance, the Court of Criminal Appeals held defendant had not satisfied the Strickland prejudice prong. Id.
Counsel's advice failed to adequately warn appellant of the gravity of the deportation consequences of his guilty plea that made him "subject to automatic deportation." As is reflected by counsel's habeas testimony, counsel advised appellant to "consult an immigration lawyer" because of the "possibility of immigration consequences" resulting from his pleas of guilty to the two offenses, "either one of which could result in his deportation." Even deferring to the habeas court's factual finding that counsel's testimony was credible in this respect and that appellant was thus aware of some risk of deportation, counsel's advice fell short of Padilla 's requirement that counsel give clear and accurate advice regarding the "presumptively mandatory" deportation consequence of his guilty plea under these circumstances.483 S.W.3d at 45 (internal citation omitted).
Similarly, Appellant's counsel here failed to meet the requirements of Padilla because he did not give Appellant "clear and accurate advice regarding the 'presumptively mandatory' deportation consequence of his guilty plea." We hold Appellant's counsel rendered ineffective assistance of counsel and thus Appellant satisfied the first Strickland prong.
Appellant states in his brief that the trial court erred in denying the writ of habeas corpus based on ineffective assistance of counsel and because of the trial court's failure to admonish him about the "immigration consequences of his plea." However, the scant references in Appellant's brief to the trial court's purported failure to admonish him are made in support of his argument that Soorholtz rendered ineffective assistance of counsel. Because we hold Appellant's counsel rendered ineffective assistance, we need not address whether the trial court properly admonished Appellant.
2. Prejudice
Because Appellant's counsel rendered ineffective assistance of counsel, we must now consider whether Appellant suffered prejudice as a result. The only argument Appellant makes on appeal in support of the Strickland prejudice prong is Appellant's conclusory statement that "if he ha[d] known that he will be a subject of deportation based on his plea of guilty," he "would have opted to try his case before the jury instead of plea." He further claims that the "question of harm or prejudice cannot be over emphasized" because Appellant "has been placed on Removal Proceeding" by ICE.
These are the same conclusory statements Appellant made in his writ and in his supporting affidavit.
To establish prejudice, Appellant must prove there is "a reasonable probability that counsel's errors affected the outcome of the plea proceedings, in the sense that, but for counsel's errors, [Appellant] would have rejected the plea bargain and instead pursued a trial." Ex parte Torres, 483 S.W.3d at 46 (citations omitted). An applicant must '"convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Id. at 48 (quoting Padilla, 559 U.S. at 372). As the Court held in Padilla, "an alien defendant might rationally be more concerned with removal than with a term of imprisonment." Id. Thus, "where the totality of the circumstances indicate that a defendant has placed a particular emphasis on the immigration consequences of a plea in deciding whether or not to accept it, this may constitute a circumstance that weights in favor of finding prejudice." Id. at 48-49; see also Ex parte Aguilera, 540 S.W.3d at 247. In considering prejudice, courts also consider (1) "whether the applicant had placed a particular emphasis on the immigration consequences of a plea in deciding whether or not to accept it," (2) "whether there is evidence of the applicant's guilt," (3) "whether the applicant had any factual or legal defenses," and (4) "how the plea deal compared to the penalties risked at trial." Id. at 249.
As to the first factor, there is no evidence in the record that Appellant placed a particular emphasis on the immigration consequences of his plea. Appellant signed a plea agreement form that waived his right to a jury trial and pre-sentence report. In the form, Appellant acknowledged, among other things, that a plea of guilty for a non-US citizen may result in deportation or denial of naturalization. Soorholtz also testified that prior to accepting Appellant's guilty plea, the trial judge asked Appellant questions about his immigration status and inquired whether he wanted time to consult with an immigration attorney before proceeding. Appellant declined, stating he wanted to proceed with his plea that same day. Soorholtz also testified that he advised Appellant he was not an immigration attorney and that he should seek advice from an immigration attorney. Appellant did not do so. Soorholtz further testified Appellant was worried about going to jail. He testified Appellant wanted to pay money instead and that he was worried that if he said something wrong, the judge would "throw him in jail, in spite of the plea bargain." This evidence "supports a conclusion that [Appellant did not place any special emphasis on avoiding deportation consequences as a result of his plea." Ex Parte Torres, 483 S.W.3d at 50; see also Ex parte Aguilera, 540 S.W.3d at 249 (explaining "courts consider whether the applicant presented evidence indicating immigration consequences of his plea were his paramount concern").
Appellant claims that because of his lack of proficiency in English, he did not understand what he signed and "did not quite understand most of what his lawyer was talking about for him to do." Soorholtz testified that he had "somewhat" of a difficulty communicating with Appellant but that he did not get a translator for the hearing because he believed Appellant understood the proceedings sufficiently. Soorholtz testified that although Appellant did not indicate in open court he was "having difficulty understanding what the proceedings were all about," he "had difficulty conversing with [Soorholtz] in the hall, to some degree."
We do not have a reporter's record of the plea hearing. And there is no indication in the clerk's record that Appellant requested an interpreter at the plea hearing or that he objected during the hearing due to his inability to understand the proceedings. There is also no indication in the probable cause affidavit that Appellant and the arresting officer had any difficulty understanding each other. There was evidence at the writ hearing, however, that Appellant attended school in the United States, that all of his classes were taught in English, and that he had been through a plea process in February 2013 when he pled guilty to criminal trespass. In addition, Soorholtz testified that Appellant applied for and completed a payment plan for the assessed fine and costs in this case, indicating he was able to comply with all requests made of him, orally and in print. This evidence weighs against a finding of prejudice.
We note that a trial judge's failure to appoint a translator can be significant:
[W]hen a trial judge is aware that the defendant has a problem understanding the English language . . . the judge has an independent duty to implement this right [to a translator] in the absence of a knowing and voluntary waiver by the defendant. The judge may become aware of the defendant's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte.Garcia v. State, 149 S.W.3d 135, 145 (Tex. Crim. App. 2004); see also Ex parte Zantos-Cuebas, 429 S.W.3d 83, 90-91 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (holding that notwithstanding defendant's signed guilty plea that contained admonishments, habeas corpus application was not frivolous because defendant who had "difficulty understanding English" did not have translator at plea proceedings). There is no showing here that the trial court judge believed there was a language barrier, given Soorholtz's testimony that Appellant did not indicate in open court he did not understand the proceedings, and Appellant's response to the trial court's inquiry as to whether he wanted to consult with immigration counsel.
We next consider the evidence of guilt and any available defenses to the charged offense. Appellant did not substantively testify live or via affidavit about these factors. He merely testified by affidavit that he told the arresting officer and Soorholtz that the alprazolam tablet was not his and he had nothing to do with it. The arresting officer stated in his probable cause affidavit that he arrested Appellant for possession of a controlled substance based on the location of the alprazolam tablet, which the officer found to the left of the car's steering wheel. In his writ application, Appellant asserted he was a passenger in the car, but in a prior statement and during the writ hearing, Appellant confirmed he was the driver. On appeal, Appellant again confirmed he was driving the car. Soorholtz also testified that no grounds existed to challenge the traffic stop leading to Appellant's charges. On this record, we do not find that the second and third factors weigh in favor of a finding of prejudice.
Soorholtz also testified that had Appellant gone to trial, there was a possibility Appellant would have faced additional charges under the Health and Safety Code and the Alcoholic Beverage Code. It is unclear what those additional charges could have been, however. Although the probable cause affidavit mentions an open container of Four Loco, an alcoholic beverage, the affidavit does not state or even suggest that either occupant in the vehicle was intoxicated, and there is no indication the officer saw either occupant drinking from the open container. And given that the other occupant of the car (Appellant's friend) was charged with possession of the marijuana found in the car, Appellant could not have been charged with possession of the same marijuana. We thus do not find that any alleged likelihood of additional charges is supported by the record.
Finally, we examine how Appellant's plea deal compared to the penalties risked at trial. In considering this fourth factor, the court looks at three subfactors: evidence regarding the likelihood of success at trial, evidence that some other plea deal would have helped avoid "negative immigration consequences," and evidence presented by the applicant regarding the likelihood he would have obtained probation if he had been convicted at trial. Ex parte Aguilera, 540 S.W.3d at 250 (citing Ex parte Obi, 446 S.W.3d at 599). There was no evidence presented or findings made as to any of these three subfactors. The absence of evidence regarding the first subfactor does not weigh for or against a finding of prejudice. Id. However, to prove he was prejudiced by Soorholtz's advice and the ensuing plea deal, Appellant bore the burden of presenting evidence "that some other plea would have helped him avoid negative immigration consequences" and that probation was likely if convicted at trial. Id. at 250-51 (citing Ex parte Obi, 446 S.W.3d at 600). Appellant's failure to present any evidence on these factors weighs against a finding that Appellant was prejudiced by his plea deal. Id. (citing Ex parte Obi, 446 S.W.3d at 600).
After considering all relevant factors, we conclude Appellant failed to carry his burden of showing that, but for his counsel's ineffective assistance, there was a reasonable probability he would not have pled guilty and would have gone to trial. The habeas court properly rejected Appellant's application for habeas corpus relief.
Conclusion
We affirm the order of the trial court denying habeas relief.