Opinion
No. 01-07-00663-CR
Opinion issued June 26, 2008.
On Appeal from the 176th District Court Harris County, Texas, Trial Court Cause No. 541457-A.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
MEMORANDUM OPINION
Appellant, Tae Sun Yun, pleaded nolo contendere, without an agreed recommendation on punishment, to the second-degree felony offense of sexual assault. See TEX. PENAL CODE ANN. § 22.011 (Vernon Supp. 2007). The trial court deferred adjudication and placed appellant on community supervision for a period of 10 years, which appellant successfully completed and was discharged. Subsequently, appellant filed an application for a post-conviction writ of habeas corpus, which the trial court denied. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (Vernon 2005) (allowing application to be made by person who is, or has been, on community supervision); see also Ex parte Enriquez, 227 S.W.3d 779, 781-83 (Tex.App.-El Paso 2005, pet. ref'd) (applying article 11.072 to deferred adjudication community supervision). Appellant appeals the denial of his application for writ of habeas corpus.
In what we construe as two issues, appellant contends that (1) his plea was involuntary because it was based on ineffective assistance of counsel at trial and (2) the trial court erred in accepting his plea without properly admonishing him regarding the deportation consequences of his plea.
In a separate issue, appellant contends that, by denying his application, the trial court failed to safeguard appellant's constitutional right to effective assistance of counsel. We construe this issue to be substantively the same as appellant's first issue.
We affirm.
Background
Appellant is a citizen of Korea and a legal resident of the United States. On September 10, 1989, appellant, then a student at the University of Houston, was charged with having committed sexual assault on September 7, 1989. At appellant's request, an interpreter was present at the plea proceedings. The record of the plea proceedings indicates that appellant told the trial court that he understood English and would turn to the interpreter only if he felt that he did not understand what was being said to him at any particular point in the proceedings. Appellant testified in English and entered a plea of nolo contendere to the offense.
Appellant successfully completed the 10-year term of community supervision assessed by the trial court and was discharged. Notwithstanding, based on his plea of nolo contendere to a sexually assaultive offense, appellant became classified as an "aggravated felon" for immigration purposes and was therefore subject to deportation. See 8 U.S.C. § 1227(a)(2)(A) (2006).
On October 20, 2006, appellant was arrested by Immigration and Customs Enforcement and deportation proceedings began. Appellant subsequently sought habeas relief on the grounds that he would not have entered a plea of nolo contendere if his trial counsel and the trial court had properly informed him that he would be subject to deportation by his plea. The trial court denied habeas relief, and this appeal of the denial ensued.
Jurisdiction
Texas Code of Criminal Procedure establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order of community supervision. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (Vernon 2005). Article 11.072 provides that, at "the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision." Id. art. 11.072, § 2(b); see Ex parte Enriquez, 227 S.W.3d at 781-83 (concluding that trial court had jurisdiction to consider habeas corpus application filed by defendant who had been discharged from deferred adjudication community supervision, under language in article 11.072 requiring that applicant, "must be, or have been, on community supervision"). If the trial court denies the application "in whole or part, the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate Procedure." TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8.
Here, appellant's application for writ of habeas corpus, which was filed after appellant completed community supervision, challenges the trial court's order that deferred the adjudication of his guilt and imposed community supervision by asserting that his plea of nolo contendere was involuntarily entered. Hence, the trial court had jurisdiction over appellant's application. See id. art. 11.072, §§ 1, 2(b); Arreola v. State, 207 S.W.3d 387, 390 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Ex parte Enriquez, 227 S.W.3d at 781-83. We have jurisdiction over the appeal from the denial of that application. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8; Arreola, 207 S.W.3d at 390.
The State contends that we lack jurisdiction to consider appellant's appeal because the trial court did not issue a written order on appellant's application for writ of habeas corpus. The record shows that appellant filed an application for a post-conviction writ of habeas corpus on October 20, 2006 and that he amended his application on June 13, 2007. Appellant states in his brief that, "[f]or unknown reasons, the trial court took no action" on the application. On July 19, 2007, however, appellant filed a "Second Amended Application for Writ of Habeas Corpus," which the trial court denied on October 18, 2007. The trial court's written order appears in the supplemental clerk's record before us.
Voluntariness of Plea
In his first issue, appellant contends that his plea was involuntary because his trial counsel failed to inform him of the deportation consequences of his plea of nolo contendere.
In reviewing a trial court's decision to grant or deny habeas corpus relief, we review the facts in the light most favorable to the trial court's ruling and uphold that ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006); Arreola, 207 S.W.3d at 391. We give almost total deference to the trial court's determination of historical facts that are dependent upon an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). A trial court may accept or reject all or part of the testimony of any witness. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App. 1993). We afford the same amount of deference to the trial court's application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id.
When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pled guilty or nolo contendere and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999) (applying Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)); see Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999) (stating that Strickland should be considered "controlling authority for all ineffective assistance of counsel claims").
In assessing counsel's competence under the first prong of Moody, we presume that counsel has knowledge of legal principles that are neither novel nor unsettled. See Arreola, 207 S.W.3d at 392 (citing Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998)). The failure to advise a defendant about the consequences of a plea constitutes ineffective assistance. Id. However, a defendant's claim that "he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary." Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Rather, to overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). Appellant must prove by a preponderance of the evidence that trial counsel's representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002).
Counsel is accountable for the knowledge, or the ability to obtain the knowledge, of relevant legal matters that are neither novel nor unsettled. Ex Parte Welch, 981 S.W.2d at 185. The deportation consequences of a particular plea are ascertainable matters of law. See 8 U.S.C. § 1227(a)(2)(A). Appellant's counsel had the obligation to provide appellant with accurate information.
Here, at the hearing on appellant's application for writ of habeas corpus, appellant's wife, Linda Yun, testified that she was married to appellant at the time of the events at issue and that she accompanied appellant "three or four times" to visit with appellant's trial counsel, Charles C. Cate. Yun testified that appellant's main concern was that he not go to jail and that Cate told appellant that there would not be "any problem." Yun testified that, on one occasion, Cate called the office of her immigration lawyer and spoke with "Simon," a legal assistant at the office. According to Yun, Simon told Cate that there would not be any immigration consequences arising from a plea of nolo contendere to a sexual assault. Yun testified that Cate improperly relied upon the advice of Simon, a non-lawyer, and failed to advise appellant that there would be consequences.
The record reflects that, at the time of appellant's application for writ of habeas corpus in 2006, Cate was unable to testify because of Alzheimer's disease. In lieu of Cate's testimony, appellant submitted two pages of Cate's handwritten notes as his evidence to support his application. Appellant appended to the notes the business records affidavit of Cate's wife and former office manager, Ruby Cate, who attested that she is the custodian of records for the former business office of Charles C. Cate, Attorney at Law; that the notes are in the handwriting of Charles C. Cate; that the notes were made at or near the time of the event; and that they were kept in the regular course of business.
Appellant contends that the "notes substantiate trial counsel's error." Specifically, appellant points to the following excerpts from Cate's notes:
[O]nly a judge can give deferred adjudication. A jury cannot give deferred. The judge defers a finding of guilty [sic] pending your good behavior while on probation. . . . Simon says — can work with a deferred. . . . [H]e could work with a deferred.
Appellant contends that "[t]hese handwritten notes prove that trial counsel misrepresented to [appellant] that he 'could work with a deferred' without effecting [sic] his immigration status."
We disagree that Yun's testimony and Cate's notes constitute evidence that affirmatively demonstrates that Cate told appellant that there would not be immigration consequences to appellant's plea of nolo contendere to a sexual assault. The trial court was free to accept or reject any part of Yun's testimony, and it apparently chose not to accept that testimony. See Alvarado, 853 S.W.2d at 23. Even if Cate spoke with Simon on some occasion, this is not evidence that Cate ultimately relied on Simon's comments, that he never spoke with Yun's immigration lawyer on another occasion, or that he failed to seek competent advice, if he needed it. Cate's notes — which contain doodles and scratch work, which were clearly written only to himself, and which may be incomplete — do not constitute evidence of how Cate ultimately advised appellant in this case with regard to his plea. These notes, which do not address deportation issues, do not affirmatively demonstrate that Cate failed to advise appellant regarding the deportation consequences of his plea. See Salinas, 163 S.W.3d at 740.
We cannot conclude that appellant has presented evidence that affirmatively demonstrates that his plea was based on misinformation supplied by trial counsel. Appellant has not shown by a preponderance of the evidence that his trial counsel was ineffective for failing to advise him properly regarding the consequences of his plea. We hold that the trial court did not abuse its discretion when it denied habeas corpus relief on this ground.
Accordingly, we overrule appellant's first issue.
Trial Court's Admonishments
In his second issue, appellant contends that the trial court reversibly erred by failing to admonish him about the deportation consequences of his plea of nolo contendere.
Texas Code of Criminal Procedure article 26.13 sets out the admonishments a trial court must provide a defendant who pleads guilty or nolo contendere. TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon Supp. 2007). Among these is the admonition that, if the defendant is not a citizen of the United States, a plea of nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law. Id. art. 26.13(a)(4). A trial court errs if it accepts a defendant's plea of nolo contendere without admonishing him of the deportation consequences of his plea. Gorham v. State, 981 S.W.2d 315, 318 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd); see also Carranza v. State, 980 S.W.2d 653, 655-56 (Tex.Crim.App. 1998).
Although article 26.13 has undergone substantial amendment since the date of the offense herein, which was September 7, 1989, the applicable portion, article26.13(a)(4), has not been amended since the date the offense was committed.
The court may make the admonitions required by article 26.13(a) either orally or in writing. TEX. CODE CRIM. PROC. ANN. art. 26.13(d). The record in this case contains no written admonitions signed by the defendant. However, the record of the plea hearing shows that the trial court orally admonished appellant regarding the deportation consequences of his plea, as follows:
THE COURT: Are you a citizen of the United States?
[Appellant]: No, sir.
THE COURT: You understand that on a plea of no contest that this may result in your deportation from this [c]ountry, or it may result in your exclusion from admission to this [c]ountry, or it may result in your denial of naturalization under the federal law of this [c]ountry. Do you understand that these things may happen?
[Appellant]: Yes, sir.
. . . .
THE COURT: You are represented in your case by Mr. Cate, is that correct?
[Appellant]: Yes, sir.
THE COURT: Have you had ample time to visit with him and has he been able to answer all your questions you have had about your case?
[Appellant]: Yes, sir.
THE COURT: Are you satisfied with his representation?
[Appellant]: Yes, sir.
Appellant's testimony at the plea hearing demonstrates that he was aware of the consequences. In addition, the trial court signed plea papers providing that the trial court had admonished appellant of the consequences of his plea.
A record that indicates that the trial court properly admonished the defendant presents a prima facie showing that his plea was made voluntarily and knowingly. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). When, as here, the record presents a prima facie showing that the plea was voluntary and knowing, the burden shifts to the defendant to show that he entered the plea without understanding the consequences. See Arreola, 207 S.W.3d at 391.
Appellant contends that he did not understand the consequences of his plea because the interpreter did not interpret all of the questions in the plea proceedings. The record of the plea hearing indicates that an interpreter was present and that appellant told the trial court that he would use the interpreter if there was anything said to him that he did not understand. Appellant testified in English, and, at the conclusion of the hearing, the trial court asked appellant if he had any questions about anything and appellant replied that he did not.
Appellant did not testify at the hearing on the application for writ of habeas corpus. At the conclusion of that hearing, appellant's counsel conceded, "The record supports that the Court with reference to the immigration consequences did its job and admonished the defendant."
We conclude that appellant has failed to meet his burden to show that he entered his plea without understanding the consequences of his plea. We hold that the trial court did not abuse its discretion by denying habeas corpus relief on this ground.
Accordingly, appellant's second issue is overruled.
Conclusion
We affirm the trial court's judgment.