Ex Parte Wongjaroen

Full title: EX PARTE CHUTIMA WONGJAROEN, Appellant

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Jun 24, 2008

No. 14-07-00593-CR (Tex. App. Jun. 24, 2008)

Opinion

No. 14-07-00593-CR

Memorandum Opinion filed June 24, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).

On Appeal from the County Criminal Court at Law No. 12 Harris County, Texas, Trial Court Cause No. 1458467.

Panel consists of Justices YATES, GUZMAN, and BROWN.

MEMORANDUM OPINION

EVA M. GUZMAN, Justice.

Chutima Wongjaroen appeals the trial court's denial of her application for a writ of habeas corpus on the ground that her guilty plea in a misdemeanor prostitution case was involuntary. We dismiss the appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 2006, appellant was charged with the misdemeanor offense of prostitution. She entered a guilty plea to the offense on March 3, 2006, and was sentenced to ten days confinement in the Harris County Jail. Appellant did not appeal the initial plea, but instead filed a writ of habeas corpus the following year, well after she had completed her ten-day sentence.

A. The Writ Application

In her writ, appellant argued that she was unlawfully restrained by the prostitution conviction because she might face deportation. She further claimed that she entered the guilty plea in that case on the advice of her counsel, Linda Norah-Davis, without understanding the potential immigration consequences. Because she was unaware that her conviction could result in eventual deportation or denial of her right to remain in the United States, she alleged her plea was involuntary. She further asserted that her attorney did not conduct a sufficient investigation of the offense before advising her to plead guilty, which amounted to ineffective assistance of counsel. Appellant attached numerous exhibits to her writ application, including the State's information, her misdemeanor plea papers, the trial court's judgment on a plea of guilty/nolo contendere, an affidavit by appellant, the offense report, and a letter from the U.S. Citizenship and Immigration Services Department of Homeland Security. The information alleged that appellant "agree[d] to engage in sexual conduct . . . for a fee." In appellant's plea papers, appellant acknowledged that she understood that if she was not a citizen of the United States, her guilty plea could result in "deportation, exclusion from admission to this country, or denial of naturalization under federal law[.]" The signed plea papers further indicated that appellant was satisfied with her attorney's representation, the attorney properly represented her, and that she had fully discussed her case with the attorney. Appellant acknowledged that she understood her rights and that she knowingly and voluntarily waived them by signing the forms. Additionally, the plea papers provided that they were translated verbatim from English to Thai by an interpreter. The trial court's judgment and sentence establish that the trial court found appellant knowingly, intelligently, and voluntarily waived her rights. Further, this paperwork states,

[T]he Defendant was admonished by the Court as required by law. It appearing to the court that the Defendant is mentally competent to stand trial, that the plea is freely and voluntarily made, and that the Defendant is aware of the consequences of [her] plea; the plea is hereby received by the Court and entered of record.

In her affidavit, appellant averred that she does not speak English or understand the legal system. She stated that a lawyer visited with her with the help of an interpreter. According to appellant's affidavit, she was told that if she said she committed the offense, she would be released from jail. She further stated her lawyer did not discuss the facts of her case or potential defenses to the charge. Finally, she swore she was not informed that being convicted of a "sex crime" would cause her to be ineligible to extend her immigration status and remain in the United States; had she been so warned, she averred that she would not have entered into the plea agreement and would instead have entered a plea of not guilty. Appellant also attached a copy of a letter addressed to her from the U.S. Citizenship and Immigration Services Department of Homeland Security (the "Department"). In this letter, the Department stated that it could not process her I-485 application¹ because she had not submitted a medical examination form and certified copies of the information, judgment, and offense report relating to any convictions or arrests from the past five years. The letter concluded by explaining that unless she submitted the requested documents, her application would be denied.

B. The Evidentiary Hearing on the Application

The trial court conducted a hearing on the habeas application on June 5, 2007, at which the attorney who represented appellant during the misdemeanor proceedings, Linda Norah-Davis, testified. According to Norah-Davis, she had practiced law for over twenty years, focusing on criminal, family, and some personal injury cases. Norah-Davis stated that she recalled her interactions with appellant because she rarely represented clients on an appointed basis, and even more rarely represented female clients in that capacity. Norah-Davis explained that she met with appellant and discussed her case, first in English and then with the assistance of a Thai interpreter. Norah-Davis testified that she had no trouble communicating with appellant in English and appellant did not request an interpreter, but Norah-Davis requested one specifically to address the immigration consequences because appellant insisted on pleading guilty. According to Norah-Davis, she informed appellant that she had three options going forward: (1) plead not guilty to the offense and request a trial to prove the transaction did not involve her; (2) bond out of jail; or (3) plead guilty and enter a plea agreement. Norah-Davis stated she advised appellant not to plead guilty, and offered to investigate the case and to try to contact a friend of appellant's who could get the money to bond appellant out of jail. Norah-Davis explained that appellant insisted she wanted to plead guilty immediately and get out of jail so she could return to her home in Louisiana. According to Norah-Davis, she repeatedly informed appellant that she was concerned about appellant pleading guilty because it could compromise her status in the country as appellant was not a United States citizen. Norah-Davis testified that she had recently attended an immigration seminar; she explained that a guilty plea would keep appellant from attaining permanent residency and could cause her problems if she intended to remain in the country. Because of these misgivings, Norah-Davis stated that she requested an interpreter to "make sure that [appellant] fully understood all her options. . . ." She was concerned that appellant understand that this "type of offense may cause her some deportation problems. . . ." Norah-Davis stated that she believed appellant fully understood all the possible consequences of her guilty plea: "[Appellant] heard [the consequences] twice; once with me and her in the holdover and then again when I had the interpreter, and then a third time she was admonished before the [b]ench while she was taking a plea." Further, Norah-Davis testified, "According to the plea papers, it may indicate discretion; but my conversations with her was clear [sic] that it would be a problem." Regarding her investigation of appellant's offense, Norah-Davis stated that she investigated the case by reading the offense report and discussing the facts with appellant. Although Norah-Davis admitted she did not listen to the audiotape of the communications between appellant and the undercover police officer, she stated, "Had she decided that she wanted to go to trial, that would have been the first thing that I would have done." She noted that the videotapes would not have aided in appellant's defense because they were not of the transaction between appellant and the undercover officer. Norah-Davis stated she explained to appellant that she had a viable defense because appellant had not negotiated the original fee. According to Norah-Davis, despite her efforts and cautions, appellant chose to plead guilty that day. After hearing the testimony of Norah-Davis and the argument of counsel, the trial court denied appellant's writ application, stating,

The court finds that the defendant's plea was knowingly, intelligently, and voluntarily made, after having been properly admonished of the consequences of her plea. The relief is denied.

This appeal ensued.

II. ISSUES PRESENTED

In her first issue, appellant asserts that the trial court abused its discretion in denying her application for a writ of habeas corpus. Appellant argues in her second issue that her guilty plea in the underlying misdemeanor cause of action was involuntary. The State responds that appellant did not invoke the jurisdiction of the trial court because she did not establish that she was "confined" or "restrained" as required by article 11.09 of the Texas Code of Criminal Procedure. We agree.

III. JURISDICTION

Appellant filed her application for a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.09, which provides "[i]f a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed. . . ." TEX. CODE CRIM. PROC. ANN. art. 11.09 (Vernon 2005). To be entitled to relief, a habeas corpus applicant must establish that he is either "confined" or "restrained" unlawfully at the time the writ application was filed. Dahesh v. State, 51 S.W.3d 300, 302 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). "Confinement" or "confined" includes "not only . . . the actual, corporeal and forcible detention of a person, but likewise . . . any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits." TEX. CODE CRIM. PROC. ANN. art. 11.21. "Restraint" or "restrained," on the other hand, refers to a person who is under the "kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right." Id. art. 11.22. Appellant alleges she is "restrained in that she became deportable as a result of her plea and conviction pursuant to Section 212 of the Immigration and Nationality Act, as amended, and 8 U.S.C. § 1182(a)." Appellant further asserts that she "has been denied residency and faces removal from the country as a result of her plea of guilty and conviction." But appellant has provided no evidence that she has been denied residency or faces removal from the country. Instead, as discussed above, she provided a letter from the Department of Homeland Security indicating that her I-485 application was incomplete. This letter also states that, if appellant fails to furnish the requested information, her application will be denied. But it in no way indicates that her application will be denied due to her misdemeanor conviction. Thus, there is nothing in our record to support her contention that this conviction has in any way impacted her residency status.² Moreover, appellant has not established that her misdemeanor conviction of prostitution is a deportable offense. Section 1227 of the United States Code establishes classes of deportable aliens. 8 U.S.C.A. § 1227 (West 2005). Subsection (a)(2) lists those criminal offenses that may lead to deportation. Id. § 1227(a)(2). Prostitution is not specifically included under those criminal offenses for which an alien may be deported, but may fall under the general heading of crimes of moral turpitude. See Holgin v. State, 480 S.W.2d 405, 408 (Tex.Crim.App. 1972) (noting that prostitution is a crime of moral turpitude in Texas). As is relevant here, the United States Code classifies any alien who "is convicted of a crime involving moral turpitude . . . and for which a sentence of one year or longer may be imposed" as deportable.³ 8 U.S.C.A. § 1227(a)(2)(i). The record establishes that appellant pleaded guilty to the misdemeanor offense of prostitution, for which the range of punishment includes a fine not to exceed $2,000 or confinement in jail not to exceed 180 days.⁴ See TEX. PENAL CODE ANN. §§ 43.02 (defining prostitution as a Class B misdemeanor), 12.22 (establishing punishment range for Class B misdemeanor). Because the single offense included in our record to which appellant pleaded guilty has a range of punishment of less than one year, it does not fall into the category of crimes of moral turpitude warranting deportation. Thus, our record does not establish that appellant has committed a deportable offense, nor has appellant provided any other evidence or argument that the misdemeanor offense for which she sought a habeas corpus writ subjects her to deportation.

IV. CONCLUSION

Under these circumstances, we conclude that appellant has not established she was confined or restrained in her liberty at the time she brought her application for habeas corpus relief. We therefore dismiss this appeal for want of jurisdiction.