Nos. 05-04-00558-CR, 05-04-00571-CR
Opinion issued April 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court, Dallas County, Texas, Trial Court Cause Nos. MA03-42328-a, MA03-4139-A. Affirmed in part, Reversed and Remanded in part.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
WRIGHT, Justice.
William Albert Rosa appeals his convictions for misdemeanor assault and misdemeanor assault involving family violence. After appellant pleaded guilty, the trial court assessed punishment, pursuant to a plea agreement, at 330 days' confinement, probated for 12 months, in the assault case, and 330 days' confinement, probated for 18 months, and a $600 fine in the assault-family violence case. In two issues, appellant contends his pleas were involuntary because (1) the magistrate failed to admonish him regarding the consequences of his plea, and (2) he did not receive the effective assistance of counsel. We sustain appellant's second issue complaining of the ineffective assistance of counsel with respect to the assault-family violence case and reverse the trial court's judgment. We affirm the trial court's judgment in the assault case.
Background
At the hearing on his motion for new trial, appellant testified that he retained counsel to represent him in these cases. Appellant intended to take the cases to trial and paid the more expensive trial retainer. Appellant explained that he is from El Salvador, but came to this country when he was three-years-old, and has been here for 19 years. Currently, he has a work permit and could become a permanent resident alien in another year. Because appellant was concerned about his immigration status, he asked trial counsel if these cases would affect his immigration status. Counsel assured him the cases were not deportable offenses. Because counsel told appellant accepting the State's offers was the "best choice and it wasn't deportable," appellant accepted the State's offers. After appellant pleaded guilty, he wanted to "make sure" about his immigration status, so he spoke with an immigration attorney. At that time, he learned he would "definitely" be deported. According to appellant, if he had known he would be deported, he would not have pleaded guilty. The same day, the trial court signed orders denying appellant's motions for new trial. A month later, the trial court conducted a hearing at appellant's request and appellant supplemented the record with an affidavit from his trial attorney. The State had "no objection" to appellant supplementing the record with the affidavit. In the affidavit, trial counsel admitted that he had "overlooked the fact that [appellant] would be facing deportation if he pleaded guilty" and "[t]hrough oversight, inadvertence, mistake of fact, and simple failure to pay attention to details, I advised [appellant] to enter a plea [in the family violence] case which would have dire consequence for [appellant] and his family." Admonishments
In his first issue, appellant contends his pleas were involuntary because he was not informed that pleading guilty might result in deportation as required by article 26.13, section (a)(4) of the Texas Code of Criminal Procedure. We disagree. The Legislature chose to require by statute that trial courts admonish persons pleading guilty to a felony that their plea might result in deportation. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon Supp. 2004-05); State v. Jimenez, 987 S.W.2d 886, 889 (Tex.Crim.App. 1999). However, the Legislature chose not to require admonishments for persons charged with misdemeanors, and the court of criminal appeals has never held that such an admonishment is constitutionally required. Jimenez, 987 S.W.2d at 889. Although the better practice may be to admonish all defendants as to possible immigration consequences, we cannot conclude the trial court erred by failing to comply with the requirements of article 26.13 in these misdemeanor cases. We overrule appellant's first issue. Ineffective Assistance of Counsel
In his second issue, appellant contends counsel incorrectly advised him that pleading guilty to these offenses would not result in deportation, and the misinformation rendered his pleas involuntary. Before turning to the merits of appellant's complaint, we must first determine whether to consider trial counsel's affidavit in addressing appellant's ineffective assistance of counsel claim. The State contends that we should not because it is "new evidence" outside the record. We disagree. Generally, we consider only the evidence that was before the trial court at the time the complained-of ruling is made. See, e.g., Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004) (appellate court may not consider factual assertions that are outside record, and party cannot circumvent this prohibition by submitting affidavit for first time on appeal); Ramirez v. State, 104 S.W.3d 549, 551 n. 9 (Tex.Crim.App. 2003) (appellate record cannot be supplemented with evidence not developed during proceedings; proper avenue for introducing evidence not contained in trial record is hearing pursuant to motion for new trial or application for writ of habeas corpus). However, an order granting or denying a motion for new trial may be freely rescinded so long as such action occurs within the 75 days provided by the rules. Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.Crim.App. 1998). Here, within the 75 days provided by the rules, the trial court conducted a hearing for the sole purpose of supplementing the record with evidence that was relevant to the issue of whether appellant received the effective assistance of counsel. Because the affidavit was admitted into evidence during the time in which the trial court was free to rescind its order denying appellant's motion for new trial, this is not, as the State suggests, a situation in which the trial court did not have an opportunity to consider it. Thus, we will consider the affidavit in addressing appellant's complaint. When, as here, a defendant challenges the voluntariness of a plea entered upon the erroneous advice of counsel, "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 and would have insisted on going to trial." Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). As with other types of ineffective assistance of counsel claims, appellant has the burden to show, by a preponderance of the evidence, that counsel's performance fell below a reasonable standard of competence, and that appellant would, with a reasonable probability, have pleaded not guilty and insisted on going to trial had he been properly advised. Id. at 858. Misinformation regarding a matter about which a defendant is not entitled to be informed may render a guilty plea involuntary if the defendant shows that his guilty plea was actually induced by the misinformation. See e.g., Moody, 991 S.W.2d at 857 (counsel incorrectly assured appellant he would be transferred to federal custody to serve two sentences concurrently); Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App. 1991) (appellant led to believe he was eligible for probation when he was not); Ex parte Kelly, 676 S.W.2d 132, 135 (Tex.Crim.App. 1980) (probation eligibility); Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim. App 1980) (pleaded guilty to avoid death sentence which was, at the time, a nonexistent penalty); Rivera v. State, 952 S.W.2d 34, 36 (Tex.App.-San Antonio 1997, no pet.) (counsel told appellant he had right to withdraw his plea and have jury trial any time prior to sentencing). In such cases, the record must contain confirmation of the misinformation by counsel or documents augmenting the defendant's testimony that reveal the misinformation and show its conveyance to the defendant. See Pena v. State, 132 S.W.3d 663, 669 (Tex.App.-Corpus Christi 2004, no pet.). The State argues that because deportation is a collateral consequence of a plea, trial counsel's failure to admonish about the possibility of deportation is not ineffective. See Perez v. State, 31 S.W.3d 365, 367-68 (Tex.App.-San Antonio 2000, no pet.); Hernandez v. State, 986 S.W.2d 817, 822-23 (Tex.App.-Austin 1999, pet. ref'd). While we do not disagree with the legal principle advanced by the State, we do disagree that it applies here. This is not a case of a failure to admonish regarding the possibility of deportation. This is a case regarding erroneous advice by counsel. The record shows appellant was particularly concerned about the effect of his plea on his immigration status and specifically asked his attorney about it. Thus, counsel had the obligation to provide appellant with accurate information. See Moody, 991 S.W.2d at 858. Counsel confirms that he did not do so with respect to the family violence case. Under these circumstances, we cannot conclude counsel's mistake was within the range of competence for a criminal attorney. See id. We come to a different conclusion, however, with respect to the misdemeanor assault case. Nothing in the record shows the misdemeanor assault case involved family violence or that misdemeanor assault is a deportable offense. Moreover, the record does not contain confirmation that trial counsel misinformed appellant with respect to the assault case. Thus, we cannot conclude that appellant met his burden to show that counsel's performance fell below a reasonable standard of competence in the assault case. See Pena, 132 S.W.3d at 669. Having concluded appellant was misinformed in the family violence case, we must determine whether appellant's decision to plead guilty was a result of counsel's misinformation. In making this determination, we consider the circumstances surrounding the plea and the gravity of the misrepresentation material to that determination. See id. Even when a defendant wholly relies upon erroneous advice of counsel, the magnitude of the error as it concerns the consequences of the plea is a relevant factor; not every reliance on erroneous advice is sufficient to justify rendering the plea vulnerable to attack. See id. After considering the circumstances in this case, we conclude appellant's reliance in this case justifies rendering the plea vulnerable. Appellant came to the United States from El Salvador as a three-year-old and has lived in this country for 19 years. His family lives here, not in El Salvador. Because he has only a work permit, appellant was concerned about his immigration status. Appellant initially intended to take the cases to trial, and he paid his trial counsel the more expensive trial retainer. It was not until trial counsel assured appellant that pleading guilty would not affect his immigration status that he accepted the State's offers. Appellant testified at the motion for new trial hearing that he would not have accepted the plea bargains had he known the effect the pleas would have on his immigration status. Trial counsel confirmed he mislead appellant regarding deportation with "dire consequence" for his family. Finally, because a conviction for family violence results in mandatory deportation, see 8 U.S.C.A. 1227 (West 1999 Supp. 2004), the effect on his immigration status is not speculative. Under these circumstances, we conclude appellant has met his burden of showing a reasonable probability that, but for counsel's erroneous advice, he would not have pleaded guilty in the family violence case and that his reliance on counsel's advice rendered the voluntariness of the plea suspect. We sustain appellant's second issue with respect to the family violence case. Accordingly, we affirm the trial court's judgment in 05-04-00558-CR, the misdemeanor assault case. We reverse the trial court's judgment in 05-04-00571-CR, the family violence case and remand for further proceedings.