Ex parte Garza
| Docket Number | 04-20-00420-CR |
| Decision Date | 29 December 2021 |
| Parties | Ex Parte Gustavo GARZA |
| Court | Texas Court of Appeals |
DO NOT PUBLISH
From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2019CR3143 Honorable Andrew Wyatt Carruthers, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Patricia O Alvarez, Justice Irene Rios, Justice
Gustavo Garza appeals the trial court's order denying his application for a writ of habeas corpus filed under article 11.072 of the Texas Code of Criminal Procedure. We affirm.
A grand jury indicted Garza for the offense of unlawful possession of a firearm by a felon. After the trial court appointed counsel to represent him, Garza pled no contest to the indicted offense in accordance with a plea bargain agreement. At the plea hearing, Garza represented, both in writing and in response to questioning in open court, that he was a United States citizen. The trial court accepted Garza's plea and sentenced him to three years' imprisonment, then suspended the sentence and placed Garza on two years' community supervision.
Despite his representations at the plea hearing, Garza was not a United States citizen. While on community supervision, the U.S. Department of Homeland Security notified Garza that he was subject to removal from the United States, arrested him and placed him in a federal immigration detention facility pending a deportation hearing.
During his detention in the federal immigration facility, Garza represented by different counsel, filed the underlying application for a writ of habeas corpus.[1] The application presented three grounds for habeas corpus relief. In one ground, Garza argued that he had received ineffective assistance of counsel from plea counsel during the plea proceedings. In a second ground, Garza argued his plea was involuntary. In a third ground, Garza argued that his detention in a federal immigration facility violated his Eighth Amendment right against cruel and unusual punishment. In his habeas corpus application, Garza asked the trial court to vacate his no-contest plea and grant him a new trial.
The trial court held a hearing on Garza's habeas corpus application.[2] At the hearing, the trial court took judicial notice of its file and the clerk's record, which contained three affidavits from Garza and the reporter's record from the plea hearing. Thereafter, Garza testified that he was a permanent resident, or "green card holder," and not a United States citizen. Garza also testified that before he entered his no-contest plea, he and his plea counsel had discussed the plea bargain; however, he did not remember if his plea counsel had asked him about his United States citizenship or his immigration status. Garza's plea counsel did not testify at the hearing.[3] At the end of the hearing, the trial court expressly found that Garza's plea counsel "rendered effective assistance of counsel" and that plea counsel The trial court further found that Garza's "plea was freely and voluntarily given." The trial court signed an order denying Garza's habeas corpus application. Garza appealed.
Article 11.072 Habeas Corpus Relief
An individual who is serving a term of community supervision may file an application for a writ of habeas corpus challenging "the legal validity of the conviction for which" "community supervision was imposed" or "the conditions of community supervision." See Tex. Code Crim. Proc. Ann. art. 11.072 § 2(b)(1), (2). We have jurisdiction to consider an appeal from an order denying habeas corpus relief under article 11.072. Id. 11.072 § 8.
"An applicant for a post-conviction writ of habeas corpus bears the burden of proving his claim by a preponderance of the evidence." Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). In article 11.072 cases, the trial court is the sole finder of fact, and the reviewing court acts only as an appellate court. Ex parte Sanchez, 625 S.W.3d 139, 144 (Tex. Crim. App. 2021). As the reviewing appellate court, "we afford almost total deference to a trial court's factual findings when they are supported by the record, especially when those findings are based upon credibility and demeanor." Ex parte Torres, 483 S.W.3d at 42. Moreover, in conducting our review, we imply all findings of fact that are necessary to support the trial court's ruling. Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). "A trial court's denial of a writ of habeas corpus is reviewed under an abuse of discretion standard." Ex parte Leal, 427 S.W.3d 455, 459 (Tex. App.-San Antonio 2014, no pet.). "We review the facts in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion." Id.
Garza's arguments on appeal essentially mirror the grounds he presented in his habeas corpus application.[4] Garza first argues that the trial court erred in denying his habeas corpus application because he established that he received ineffective assistance of counsel during the plea proceedings. Garza's ineffective assistance of counsel claims focus both on plea counsel's alleged failure to advise him of the immigration consequences of his plea, and plea counsel's alleged failure to review the evidence and discuss possible suppression issues and defenses with him.
"To demonstrate that he is entitled to post-conviction relief on the basis of ineffective assistance of counsel, an applicant must demonstrate that (1) counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (2) the applicant was prejudiced as a result of counsel's errors, in that, but for those errors, there is a reasonable probability of a different outcome." Ex parte Torres, 483 S.W.3d at 43.
Proving deficient performance requires the applicant to show that trial counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms. Ex parte Leal, 427 S.W.3d at 459 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Courts indulge a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance and their review of counsel's representation is highly deferential. Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005).
Proving prejudice in a plea case requires the applicant to show a reasonable probability exists that, but for counsel's errors, he would not have pleaded guilty or no-contest and would have insisted on going to trial. Ex parte Torres, 483 S.W.3d at 47.
An applicant seeking post-conviction habeas corpus relief must prove both elements of his ineffective assistance claim by a preponderance of the evidence. See Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An ineffective assistance of counsel claim must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.
We begin our analysis by determining if Garza met his burden to prove that his plea counsel's performance was deficient.
In his habeas corpus application, Garza argued that plea counsel's performance was deficient because she "fail[ed] to inquire as to his citizenship and, thereby fail[ed] to properly advise him regarding the immigration consequences" of his plea.
The United States Supreme Court has recognized that the scope of the Sixth Amendment requires an attorney representing a noncitizen criminal defendant to provide advice about the risk of deportation arising from a no-contest or guilty plea. Padilla v. Kentucky, 559 U.S. 356, 374 (2010); Ex parte Torres, 483 S.W.3d at 43. "In Padilla, the United States Supreme Court held that when the removal consequences of a guilty plea are clear, counsel has a duty to correctly advise a defendant of those consequences." Ex parte Aguilar, 537 S.W.3d 122, 126 (Tex. Crim. App. 2017). "Padilla requires that counsel give a defendant accurate legal advice about the 'truly clear' consequences of a plea of guilty to an offense that, as a matter of law, renders him 'subject to automatic deportation.'" Ex parte Torres, 483 S.W.3d at 46. When counsel fails to comply with the requirements articulated in Padilla and its progeny, her representation falls below an objective standard of reasonableness. See Ex parte Aguilar, 537 S.W.3d at 128 (); Ex parte Torres, 483 S.W.3d at 44-46 ().
In conducting our review of plea counsel's performance, we defer to the trial court's express and implied factual findings that are supported by the record. Ex parte Torres, 483 S.W.3d at 42; Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006). In the present case, the trial court made an express finding that plea counsel had no notice that Garza was not a United States citizen. This finding is supported by the record.
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