Opinion
NUMBER 13-14-00501-CR
02-04-2016
EX PARTE SAMUEL OSVALDO GARCIA
On appeal from the 357th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
Apellant Samuel Osvaldo Garcia appeals the trial court's denial of his application for post-conviction writ of habeas corpus pursuant to article 11.072 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West, Westlaw through 2015 R.S.). By two issues, Garcia asserts that the habeas court erred in denying his habeas petition because: (1) he can proceed on an ineffective assistance claim based upon affirmative misrepresentation regarding the immigration consequences of his previous plea of guilty; and (2) his trial counsel's affirmative incorrect advice regarding immigration consequences constituted ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. See U.S. CONST. amend VI. Without addressing the merits of Garcia's issues on appeal, we reverse and remand.
I. BACKGROUND
Garcia is a Guatemalan citizen and Harlingen resident who obtained lawful permanent resident status in the United States in 1987. In 2002, the State indicted Garcia with possession, with intent to deliver, four grams or more but less than 200 grams of cocaine, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.114 (West, Westlaw through 2015 R.S.). On December 5, 2002, Garcia, represented by attorney Daniel A. Sanchez, pleaded guilty as charged to the offense. The trial court found Garcia guilty and pursuant to a plea agreement, imposed a sentence of ten years' imprisonment, suspended the sentence, and placed Garcia on community supervision with various conditions for a term of ten years and assessed a $500 fine. In 2003, the United States government placed Garcia in removal proceedings pursuant to the 2002 guilty plea. An immigration judge ordered Garcia removed from the United States that same year, and Garcia was deported to Guatemala.
On May 8, 2014, Garcia filed the present application for post-conviction writ of habeas corpus alleging that his trial lawyer, Sanchez, denied him effective assistance of counsel. Garcia asserted that he "was not, at any time prior to or during the [2002 proceedings] advised that he would lose his Lawful Permanent Resident Status, he would be deported and that he would be inadmissible for re-entry into the U.S. as a direct result of pleading guilty [to the 2002 possession charge]." Garcia further contended in his supporting affidavit attached to his habeas application that he recalled asking Sanchez, prior to pleading guilty, whether his guilty plea would result in his deportation and that Sanchez told him that he "would probably be okay" and that the charge "would probably not result in deportation." The State filed a response which refuted Garcia's allegations and also invoked the doctrine of laches. The habeas court ultimately denied Garcia's application, and this appeal followed.
II. POST-CONVICTION WRIT OF HABEAS CORPUS
By two issues, which we consolidate into one issue with two arguments, Garcia asserts that the habeas court abused its discretion by denying his application for habeas corpus relief.
A. Standard of Review
We review the trial court's denial of habeas corpus relief under an abuse-of-discretion standard, and consider facts in the light most favorable to the habeas court's ruling. See Ex parte Reed, 402 S.W.3d 39, 41 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (citing Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006)). We afford almost complete deference to the habeas court's determination of historical facts supported by the record, especially when those factual findings rely upon an evaluation of credibility and demeanor. Id. at 42. We apply the same deference to review the habeas court's application-of-law-to-fact questions, if the resolution of those determinations rests upon an evaluation of credibility and demeanor; if the outcome of those ultimate questions turns upon an application of legal standards, we review the habeas court's determination de novo. Id.
To prevail upon a post-conviction writ of habeas corpus, the applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). When a defendant, as here, challenges the validity 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 pleaded guilty to the charged offense and would have insisted on going to trial. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
B. The Habeas Record on Appeal
Before reaching the merits of Garcia's application, we first outline the relevant statutory provisions governing this proceeding at the trial court and the procedural history of this proceeding.
Garcia filed his application for post-conviction habeas corpus on May 8, 2014 pursuant to article 11.072 of the code of criminal procedure. When an application is made under article 11.072, and after the State has filed its discretionary answer, the trial court shall enter a written order granting or denying the relief sought in the application. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(a). When making its determination on the application, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection. Id. art. 11.072, § 6(b). If the court determines from the face of an application or documents attached to the application that the applicant is manifestly entitled to no relief, the court shall enter a written order denying the application as frivolous. Id. art. 11.072, § 7(a). In any other case, the court shall enter a written order including findings of fact and conclusions of law. Id. The court may require the prevailing party to submit a proposed order. Id.
The relevant record currently before this Court contains the following:
(1) Garcia's May 8, 2014 application for post-conviction habeas relief with the following attachments: (a) Garcia's 2002 judgment, (b) Garcia's affidavit in support of his application, and (c) Garcia's written waiver and consent to stipulation of testimony, waiver of jury, and plea of guilty;
(2) the State's response to Garcia's application filed June 5, 2014;
(3) a signed order from the trial court setting Garcia's habeas hearing on June 9, 2014;
(4) an application, filed by Garcia's habeas counsel and dated June 9, 2014, requesting that the trial court order the Cameron County Sheriff's Office to obtain custody of Garcia, who was in federal custody with the United States Marshals Service, and bring him before the trial court on June 16, 2014;
(5) a signed order from the trial court granting Garcia's counsel's June 9, 2014 application for bench warrant; and
(6) an order dated September 5, 2014 denying Garcia's habeas application and stating the following:
We further note that despite ordering a hearing and subsequent bench warrant for Garcia to appear before the trial court on this matter, no hearing appears to have been held on Garcia's application, or if a hearing was held, no record of it is included in the appellate record. Additionally, the trial court's September 5, 2014 order does not expressly deny Garcia relief on the grounds that his application was frivolous. See id. art. 11.072, § 7(a). The trial court denied the habeas application, but did not expressly find Garcia's application frivolous and did not issue any findings of fact or conclusions of law, as mandated by the code of criminal procedure when a petition is denied on grounds other than frivolousness. See id. Finally, Garcia attaches to his appellate brief—and cites to—a July 25, 2014 signed affidavit by his former counsel, Sanchez, which asserts that Sanchez advised Garcia that his 2002 plea "may result in deportation, the exclusion from admission to this Country, or the denial of naturalization under federal, or a combination of the any of the aforementioned options." The Sanchez affidavit, however, does not appear anywhere in the appellate record.On this day, came on for consideration, before this Court, the Post-Conviction Writ of Habeas Corpus Seeking Relief in Accordance with Article 11.072 of the Code of Criminal Procedure by Samuel Osvaldo Garcia (hereinafter Applicant) on May 8, 2014. After reviewing said Application, together with the evidence attached thereto, and the Response of the State in opposition thereto, and all other evidence brought before this Court, the Court is of the opinion that said Application should be denied.
THEREFORE, this Court DENIES any and all relief requested in Applicant's Application.
This State references and cites to this affidavit as well in its brief.
We hold that the record before us today is factually inadequate to permit us to appropriately determine the merits of Garcia's application. See Ex parte Hernandez, 398 S.W.3d 369, 374 (Tex. App.—Beaumont 2013, no pet.) ("An appellate court may remand a habeas proceeding to the trial court for further proceedings if the factual record has not been sufficiently developed.") (citing Ex parte Cherry, 232 S.W.3d 305, 308 (Tex. App.—Beaumont 2007, pet. ref'd)). The "courts of appeals should not be forced to make assumptions (or outright guesses)" about the reasons for a trial court's ruling. See Statev. Cullen, 195 S.W.3d 696, 698 (Tex. 2006) (discussing its holding in the motion-to-suppress context). And to hold otherwise would not do substantial justice to the parties in this case. See TEX. R. APP. P. 31.2.
Therefore, we conclude that the appropriate remedy in this situation—without addressing the merits of Garcia's appeal—is to reverse and remand to allow the trial court to conduct further proceedings it deems necessary to provide us with an adequate record. See TEX. R. APP. P. 31.3 ("The appellate court will render whatever judgment and make whatever orders the law and the nature of the case require."); see also Ex parte Hernandez, 398 S.W.3d at 374. These remand proceedings may or may not include the ordering of additional affidavits, depositions, interrogatories, or a hearing, see TEX. CODE CRIM. PROC. Ann. art. 11.072, § 6(b), but shall include a written order either denying the application on the grounds that it is frivolous, or a written order granting or denying the application which includes findings of fact and conclusions of law as required by statute.Id. After the habeas court makes it findings and conclusions, we are confident that we will then have an adequate basis upon which to review the trial court's application of law to the facts. See TEX. R. APP. P. 31.2 ("[T]he appeal will be heard and determined upon the law and the facts shown by the record."); see also Ex parte Cherry, 232 S.W.3d at 308. Following the proceedings on remand, should either party desire to appeal the trial court's order, new notices of appeal will be required. See Ex parte Cherry, 232 S.W.3d at 308.
Nothing in this opinion today precludes the State from re-urging any of its arguments made in its response to Garcia's habeas application. --------
III. CONCLUSION
We reverse the trial court's denial of Garcia's application for post-conviction writ of habeas corpus and remand for further proceedings consistent with this opinion.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 4th day of February, 2016.