Opinion
No. 04-17-00832-CR
05-23-2018
EX PARTE Freddy OQUENDO
MEMORANDUM OPINION
From the 112th Judicial District Court, Sutton County, Texas
Trial Court No. 1591B
Honorable Pedro Gomez, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Freddy Oquendo appeals the trial court's order denying his petition for writ of habeas corpus. Oquendo contends the trial court erred in refusing to vacate his conviction because he was not properly admonished regarding the immigration consequences of his guilty plea. Oquendo also contends the trial court erred in failing to adjudicate his petition as a court of equity. We affirm the trial court's order.
BACKGROUND
On May 8, 2001, Oquendo pled guilty to possession of marijuana and was placed on ten years community supervision. The plea papers signed by Oquendo included an Acknowledgment of Article 26.13 Admonishments ("Acknowledgment") signed by the trial court stating, "The Court hereby admonishes you, the defendant, as follows and instructs you to place your initials on the line provided by each item, if you fully understand it[.]" Among the admonishments initialed by Oquendo was the following:
Oquendo was charged with possessing more than 50 pounds but less than 2000 pounds of marijuana. At the habeas hearing and in its brief, the State noted Oquendo was in possession of 104 pounds of marijuana which was discovered in a hidden compartment of his vehicle.
And the fact that if you are not a citizen of the United States of America, a plea of guilty or nolo contendere to the offense charged may result in deportation, the exclusion from admission to the country, or the denial of naturalization under federal law.At the end of the Acknowledgment, Oquendo signed a statement acknowledging that he read the admonitions, they were explained to him by his attorney, and he fully consulted with his attorney before signing the Acknowledgment. Below Oquendo's signature is a signature block for his attorney following the word "Approved." Oquendo's attorney signed the Acknowledgment in the space provided.
In addition to the Acknowledgment, Oquendo also signed a document entitled Waiver of Jury and Agreement to Stipulate Upon a Plea of Guilty to an Indictment or Information ("Waiver") which contained the following representation, "I also understand that if I am not a citizen of the United States of America, a plea of guilty to the offense charged against me may result in my deportation, my exclusion from admission to this country or the denial of naturalization under federal law." The Waiver also contained a certificate signed by Oquendo's attorney stating:
I have consulted with the defendant, advised the defendant of his rights and believe the defendant to be mentally competent. I approve the entry of this plea of guilty, the waiver of indictment, if waived, the waiver of jury, agreement to stipulate, and waiver of arraignment, service of the indictment or information, ten (10) days to prepare for trial and to file written pleadings and the waiver of a pre-sentence report prior to the imposition of sentence.Finally, the Waiver contained a certificate signed by the trial court in which the trial court recited it had warned Oquendo that "if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere to the offense charged may result in deportation, the exclusion from admission to the country or the denial of naturalization under Federal Laws."
On May 12, 2011, the trial court signed an order finding Oquendo had "satisfactorily fulfilled the conditions of [his] Community Supervision" and discharged Oquendo from the terms and conditions of his community supervision.
On September 8, 2016, Oquendo filed the underlying petition for writ of habeas corpus, stating the following:
• He is a citizen of Cuba and a lawful permanent resident of the United States.Oquendo then argued his guilty plea was not voluntary or knowing because the trial court failed to properly admonish him about the possible immigration consequences of his plea. After a hearing on Oquendo's petition, the trial court signed an order denying the petition. Oquendo appeals.
• On July 14, 2015, he and his family were returning to the United States from a vacation abroad when he was detained pending deportation proceedings.
• Based on his 2001 conviction, he is subject to mandatory deportation and is ineligible for any relief from removal.
STANDARD OF REVIEW AND APPLICABLE LAW
"In an Article 11.072 habeas proceeding, the trial judge is the sole finder of fact." State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). "The highly deferential Guzman standard of review controls," and we afford "almost total deference to a trial court's factual findings when supported by the record, especially when those findings are based upon credibility and demeanor." Id. We afford the same deference to the trial court's application of the law to the facts or "mixed questions of law and fact" "if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also Ex parte Skelton, 434 S.W.3d 709, 717 (Tex. App.—San Antonio 2014, pet. ref'd). "But if the resolution of those ultimate questions turns only on the application of legal standards, the trial court is not in an appreciably better position than an appellate court to make that determination, and we review de novo." Ex parte Skelton, 434 S.W.3d at 717; see also Guzman, 955 S.W.2d at 89.
Prior to accepting a guilty plea, the trial court must admonish the defendant of "the fact that if the defendant is not a citizen of the United States of America, a plea of guilty ... may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law." TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West Supp. 2017). The admonitions may be given orally or in writing. Id. at art. 26.13(d). "If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea." Id. In admonishing a defendant, "substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." Id. at art. 26.13(c).
ANALYSIS
Oquendo argues the trial court's written admonitions were deficient because his attorney did not sign a statement that Oquendo understood the admonitions and was aware of the consequences of his plea. Oquendo asserts neither his attorney's signature following the word "Approved" on the Acknowledgment nor the certificate signed by his attorney on the Waiver satisfied the requirements of article 26.13(d) because the attorney's signature did not follow a statement that Oquendo understood the admonitions and was aware of the consequences of his plea. We disagree with Oquendo's reading of article 26.13(d).
We note that although Oquendo cites Padilla v. Kentucky in his brief, he does not argue that trial counsel was ineffective based upon any advice regarding deportation consequences. See Padilla v. Kentucky, 559 U.S. 356 (2010). In fact, Oquendo states in his brief that he "raises no fault or issue concerning [his attorney's] fine representation in this case." Furthermore, Oquendo's attorney verbally acknowledged at the habeas hearing that Padilla does not apply retroactively. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).
Oquendo concedes that he signed a statement that he understood the admonitions and was aware of the consequences of his plea. The signature of Oquendo's attorney also appears on the document signed by Oquendo. That is all article 26.13(d) requires, i.e., a document containing a statement that Oquendo understood the admonitions and was aware of the consequence of his plea that was signed by both Oquendo and his attorney. See Gonzalez v. State, No. 11-15-00073-CR, 2015 WL 9311639, at *2 (Tex. App.—Eastland Nov. 30, 2015, pet. ref'd) (not designated for publication) (holding plea document complied with article 26.13(d) because it "was signed by both Gonzalez and trial counsel, and within the plea document, Gonzalez acknowledged that he understood the various rights contained within the Article 26.13 admonitions and the consequences of his plea, including the deportation consequences that could result from his plea of guilty to the charged offense"); Olivarez v. State, No. 04-97-00763-CR, 1998 WL 121624, at *2 (Tex. App.—San Antonio Mar. 18, 1998, no pet.) (not designated for publication) (holding defendant properly admonished under article 26.13(d) where a "document signed by Olivarez and his attorney contain[ed] such a statement").
Even if we were to hold the documents signed by Oquendo and his attorney only substantially complied with article 26.13, Oquendo would have the burden to "affirmatively" show: "(1) he was not aware of the consequences of his plea; and (2) he was misled or harmed by the admonishment of the court." Boccard v. State, 992 S.W.2d 649, 651 (Tex. App.—Houston [14th Dist.] 1999, no pet.); TEX. CODE CRIM. PROC. ANN. art. 26.13(c); see also Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985) (explaining burden); Seagraves v. State, 342 S.W.3d 176, 183 (Tex. App.—Texarkana 2011, no pet.) (same). In this case, Oquendo presented no affirmative proof of either requirement. In fact, the clerk's record contains billing records from one of Oquendo's attorneys noting he provided information about Oquendo's case to an immigration lawyer who Oquendo contacted about representation. The trial court commented on the billing records during the habeas hearing and could have relied on the billing records to find that Oquendo was aware of the immigration consequences of his plea. See Guerrero, 400 S.W.3d at 583 (noting appellate court must afford "almost total deference to a trial court's factual findings when supported by the record" in an Article 11.072 habeas proceeding). In his brief, Oquendo points to his pending deportation proceeding to assert he was harmed. That harm, however, stems from Oquendo's conviction, not from being misled or harmed by the trial court's admonition.
Finally, Oquendo asserts the trial court erred "by failing to adjudicate [his] writ of habeas corpus as a court of equity as set forth in Ex parte Perez, 398 S.W.3d 206, 21[6]-17 (Tex. Crim. App. 2013)." In Ex parte Perez, however, the Texas Court of Criminal Appeals was addressing the application of equitable considerations in determining whether the equitable doctrine of laches should bar habeas relief. 398 S.W.3d at 219 ("Though proof of mere passage of time will continue to be insufficient to raise laches, we will weigh all relevant equitable considerations in determining whether a long-delayed application for post-conviction relief should be barred by laches."). The court did not hold that equitable relief should be granted to set aside a guilty plea when a defendant was properly admonished with regard to the immigration consequences of his plea. As the trial court commented, "The Court recognizes that ... this Court ... is a court of equity, but the Court also recognizes that [it] is a court of law."
CONCLUSION
The trial court's order is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH