Opinion
No. 08-14-00204-CR
03-09-2016
EX PARTE JESUS AGUILAR
Appeal from the 243rd Judicial District Court of El Paso County, Texas (TC# 970D04229-243-1) OPINION
This is a State's appeal from a trial court's judgment granting Jesus Aguilar's writ of habeas corpus. See TEX.CODE CRIM.PROC.ANN. art 44.01(k)(West Supp. 2015); see also Ex parte Cherry, 259 S.W.3d 295, 297 (Tex.App.--Beaumont 2008, no pet.)(trial court's order granting Article 11.072 writ and vacating order of deferred adjudication was appealable by the State under Article 44.01(k)). Aguilar was indicted for the felony offense of possession of a controlled substance in penalty group 1, to wit: cocaine, weighing less than 1 gram, alleged to have occurred on or about May 3, 1997. On January 15, 1999, pursuant to a plea agreement, Aguilar's charge was reduced to a class-A misdemeanor, to which he pled guilty. In accordance with the plea agreement, the trial court deferred entry of judgment and placed Aguilar on two years' community supervision. On February 25, 2000, the trial court granted Aguilar's request for early termination of his community supervision.
On May 28, 2014, Aguilar filed his application for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure. In it, he asserted his trial counsel rendered ineffective assistance by failing to inform him of the consequences of pleading guilty. Aguilar also alleged that he received ineffective assistance of counsel when his trial counsel failed to pursue a motion to suppress the cocaine which formed the basis of his guilty plea.
On July 1, 2014, the habeas court held an evidentiary hearing and granted Aguilar's writ application, thereby vacating his conviction, and ordered the case to be set for a new trial. For the reasons that follow, we reverse the trial court's judgment.
FACTUAL BACKGROUND
The Park
On May 3, 1997, Aguilar went to a park in Anthony, Texas, with friends around 12 p.m. He noticed one of his neighbors, Ricardo Marmalejo, sitting on one of the park benches. Aguilar walked over to greet Marmalejo. Officer Jose Rodriguez, a police officer with the Anthony Police Department, was on patrol at the park when he observed Marmalejo and Aguilar. According to Officer Rodriguez's police report, he noticed that Marmolejo picked an item up from the table and then bent over so that Officer Rodriguez could not see him place the item in his right-front pants' pocket. Due to this suspicious behavior, Officer Rodriguez approached them and asked for identification. The police report notes that Rodriguez detected a strong odor of marijuana coming from both men. Aguilar testified at his writ hearing that when Officer Rodriguez approached him, he was aggressive and made Aguilar feel that he was not free to leave.
On direct examination, Aguilar's testimony provided in relevant part:
[Aguilar]: When I said hi to [Marmalejo], the police arrived.
[Aguilar's counsel]: What did the police do with you?Aguilar indicated that Officer Rodriguez never told him exactly what he was being charged with until after the incident. He claimed that he was not in possession of drugs, specifically cocaine, that day. However, on cross-examination, Aguilar testified as follows:
[Aguilar]: He put me on the side. And then he asked me for my driver's license, and I pulled out my wallet.
[Aguilar's counsel]: At the time that that happened when he pulled you on the side and asked for you [sic] driver's license, had you done anything wrong?
[Aguilar]: No.
[The State]: Then a police officer asked you for your identification?
[Aguilar]: Yes.
[The State]: And you pulled out your wallet to give him your identification?
[Aguilar]: Yes.
[The State]: And did a piece of paper fall out of your wallet?
[Aguilar]: I don't remember anything. He mentioned that something fell out of my pocket.
[The State]: Right. The police report says that a piece of paper fell out. It was a diamond-folded paper.
[Aguilar]: I remember he pulled out my wallet. He pulled it out himself.
[The State]: So--okay. Your testimony today is that you didn't pull out your wallet?
[Aguilar]: He said something fell out of my pocket and I go --
[The State]: Just to be clear, did you pull out your wallet, sir?
[Aguilar]: He's the one that put his hands behind and he pulled it out.
[The State]: So your testimony is that the officer pulled out your wallet?
[Aguilar]: Yes, sir.At the conclusion of this encounter, Officer Rodriguez arrested Aguilar for possession of cocaine.
[The State]: Okay. And a piece of paper fell out?
[Aguilar]: That's what he said, yes, sir.
[The State]: And that piece of paper had cocaine in it?
[Aguilar]: According to him, it did.
[The State]: And you were arrested for possession of cocaine?
[Aguilar]: Yes, sir.
Aguilar's Attorneys
Attorney Mike Herrera initially represented Aguilar. On May 18, 1998, a court order set a 28.01 hearing for July 6, 1998. Herrera did not file any motions to suppress for the court to consider at this hearing. However, on December 11, 1998, attorney Sergio Coronado filed a pretrial motion to suppress evidence. On January 12, 1999, Aguilar filed a written motion to substitute Coronado for Herrera. Aguilar testified that he met with Coronado approximately three times.
According to Aguilar, Coronado failed to advise him on the law of search and seizure. Aguilar also explained that the first time Coronado realized that Aguilar was not a U.S. citizen was five minutes before he pled guilty. When Coronado inquired into the situation, Aguilar responded that he did not have any papers. Coronado then advised Aguilar to proceed with the guilty plea. According to Aguilar, Coronado indicated that it would still be his best option to plead guilty because if not, he would lose his case. Aguilar testified that he complied and pled guilty because he did not have any other options.
The Immigration Proceedings
The U.S. immigration office contacted Aguilar in 2014, about four or five months prior to the writ hearing. The office presented Aguilar with a deportation form and indicated that his deportation situation arose as a result of a crime he had committed. Aguilar signed the form, still believing he had no other options. Aguilar subsequently hired an immigration attorney and is currently appealing his deportation. Aguilar testified that he was unaware of how his possession charge was going to affect him. Had he known that deportation was one of the consequences of pleading guilty, he would not have done so. He also explained that he would have also filed a motion to suppress, and if he lost the motion, then he would have gone to a jury trial to try and establish his innocence.
The Trial Court's Findings of Fact and Conclusions of Law
After we issued an order to for the trial court to make findings of fact and conclusions of law, pursuant to TEX.CODE CRIM.PROC.ANN. art. 11.072, § 7 (West 2015), the trial court determined that Aguilar's counsel was ineffective because he failed to (1) advise him of the possibility of deportation and (2) file a pretrial motion to suppress the cocaine. The trial court went on to explain that had Coronado made such a filing, Aguilar's case probably would have been dismissed. The State now appeals.
STANDARD OF REVIEW
We apply an abuse of discretion standard when reviewing a trial court's decision to grant or deny habeas relief. Ex parte Aguilar, No. 08-12-00369-CR, 2014 WL 7234592, at *4 (Tex.App.--El Paso Dec. 19, 2014, no pet.)(not designated for publication); Ex parte Wheeler, 203 S.W.3d 317, 323-24 (Tex.Crim.App. 2006). We view the facts in the light most favorable to the trial court's ruling and defer to the trial court's implied factual findings that are supported by the record. Ex parte Wheeler, 203 S.W.3d at 325-26; Washington v. State, 326 S.W.3d 701, 704 (Tex.App.--Houston [1st Dist.] 2010, no pet.). To the extent the ultimate resolution of the application turns on the application of law, we review the determination de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003)(per curiam). We will reverse the trial court's ruling only if we conclude it is arbitrary, unreasonable, and made without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh'g).
Generally, we afford great deference to a trial court's determinations of fact when supported by the record. Ex parte Wheeler, 203 S.W.3d at 325-26. However, when such determinations lack support in the record, the rational for according deference disappears. See Ex parte Flores, 387 S.W.3d 626, 635 n.39 (Tex.Crim.App. 2012)("When our independent review of the record reveals findings and conclusions that are unsupported by the record, we will, understandably, become skeptical as to the reliability of the findings and conclusions as a whole."). We must affirm a trial court's ruling on a habeas petition if the ruling is correct based on any legal theory before the court, regardless of whether some of the reasons given by the court appear to be faulty. Ex parte Pipkin, 935 S.W.2d 213, 215 n.2 (Tex.App.--Amarillo 1996, pet. ref'd).
INEFFECTIVE ASSISTANCE OF COUNSEL
Aguilar based his habeas corpus application on a denial of the effective assistance of counsel, which he argued rendered his plea involuntary. The test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Ex parte Luna, 401 S.W.3d 329, 333 (Tex.App.--Houston [14th Dist.] 2013, no pet.). The Strickland two-pronged test for ineffective assistance of counsel applies in the guilty plea context. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986)(applying Strickland standard to claims of ineffective assistance under the Texas Constitution).
To establish ineffective assistance of counsel, Aguilar must prove by a preponderance of the evidence that (1) his trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2052; Ex parte Luna, 401 S.W.3d at 333; Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). Failure to show either deficient performance or sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
We indulge a strong presumption that counsel's strategy was sound and fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Therefore, allegations of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex.Crim.App. 2000).
Failure to Advise Aguilar of his Immigration Consequences
In its first point of error, the State argues that Aguilar failed to prove, by a preponderance of the evidence, his claim that trial counsel rendered ineffective assistance when he failed to advise him of the immigration consequences of his guilty plea. As a result, the State insists that the trial court abused its discretion in granting Aguilar's requested habeas corpus relief. We agree.
The State contends that Aguilar implicitly relied on Padilla v. Kentucky, 559 U.S. 356, 368, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010), in his writ application to support his argument that he received ineffective assistance because Coronado failed to advise him of the consequences of pleading guilty. It is well-settled by now that Padilla, decided in 2010, does not apply retroactively. Chaidez v. United States, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013)("defendants whose convictions became final prior to Padilla . . . cannot benefit from its holding"); Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013). Because Aguilar pled guilty to the possession of cocaine in 1999, pre-Padilla law is instructive in Aguilar's instance. And pre-Padilla law tells us that "while the Sixth Amendment assures an accused of effective assistance of counsel in criminal prosecutions, [it] does not extend to 'collateral' aspects of the prosecution." Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). A consequence is "direct" if it is definite, immediate, and largely automatic. State v. Jimenez, 987 S.W.2d 886, 888 n.5 (Tex.Crim.App. 1999). A consequence is "collateral," on the other hand, if it lies within the discretion of the court whether to impose it, or its imposition is controlled by an agency which operates beyond the direct authority of the trial judge. Id. at 888 n.6. That a guilty plea may result in deportation is considered a collateral consequence. Id. at 888-89.
We believe Aguilar failed to meet the first prong of Strickland establishing trial counsel's deficient performance. Based on the law in 1999, Coronado was under no duty to inform Aguilar of the immigration consequences of his guilty plea because at the time, such a consequence was considered collateral. Therefore, we find that the trial court abused its discretion in finding that Coronado rendered ineffective assistance of counsel when he did not advise Aguilar of the possibility of deportation. We also find several of the trial court's findings and conclusions arbitrary, unreasonable, and made without reference to the guiding rules or principles. Specifically, the trial court stated that "Aguilar's trial counsel told Aguilar that he should plead guilty anyway, and that Aguilar could get off probation early for good conduct, and that Aguilar would be okay on his resident status." Moreover, the trial court explained that: "Based upon his attorney's explanation, Applicant took his attorney's advice to mean that so long as Aguilar complied with his probation, Aguilar could get off of his probation and would have no immigration problems." After reviewing the record for ourselves, we conclude that such findings are unfounded. Even reading Aguilar's writ application and affidavit most generally, he does not give any explanation or reasoning as to why his counsel advised in the manner in which he did. Rather, all we can point to that relates to the trial court's findings is Aguilar's testimony where he stated that he was told a guilty plea was his best option because if he did not do so, he was going to lose his case. We cannot equate this statement to the trial court's elaborations on the matter which it then relied on to declare Coronado's performance deficient when Coronado was under no such obligation in 1999 to advise Aguilar of his risk of deportation. The State's first point of error is sustained.
Failure to Pursue a Motion to Suppress
In its second point of error, the State similarly argues that Aguilar failed to prove his claim that his trial counsel rendered ineffective assistance when he failed to pursue a pretrial suppression of the cocaine that formed the basis for his guilty plea. As a result, the State claims that the trial court abused its discretion to the extent it granted Aguilar habeas corpus relief on these grounds. Aguilar's response highlights the trial court's conclusion that Officer Rodriguez searched Aguilar without probable cause and reasonable suspicion, which suggests that a pretrial motion to suppress would have been granted.
In its findings of fact and conclusions of law, the trial court determined that Officer Rodriguez lacked probable cause or reasonable suspicion to search Aguilar. We note that Aguilar's writ hearing was an inappropriate forum for the trial court to determine that probable cause did not exist. The trial court also makes some reference to the Antiterrorism and Effective Death Penalty Act enacted in 1996. We similarly fail to see its significance to the issues at hand, in addition to the fact that neither parties raised the issue during the writ hearing, nor does the statute appear in any part of the record before us now.
To prevail on an ineffective assistance claim based on counsel's failure to file a motion to suppress, an applicant must show by a preponderance of the evidence that the result of the proceeding would have been different, i.e., that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction. Carmen v. State, 358 S.W.3d 285, 295 (Tex.App.--Houston [1st Dist.] 2011, pet. ref'd), citing Hollis v. State, 219 S.W.3d 446, 456 (Tex.App.--Austin 2007, no pet.); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998).
Other than Aguilar's uncorroborated allegations in his writ application and during the writ hearing, nothing substantiates Aguilar's contentions that Coronado behaved in the manner alleged. It was unfounded for the trial court to conclude otherwise. Aguilar had the opportunity to develop a record demonstrating his alleged ineffective assistance of counsel claims under the two-prong Strickland test. However, Aguilar was the sole witness. He testified that he met with his trial attorney approximately three times and that Coronado did not find out about his citizenship status until five minutes prior to entering his plea. Similarly, all we have is Aguilar's testimony that he would have at least tried to file a motion to suppress had he known that his guilty plea was going to detrimentally affect him. Aguilar failed to subpoena Coronado or obtain an affidavit from him for the writ hearing. We also have no record of Aguilar's original plea hearing. Because Aguilar was the only witness, the record contains no explanation for trial counsel's actions. Absent evidence supporting these claims, we decline to find that Coronado engaged in the conduct alleged. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003)(noting that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective"); Arreola v. State, 207 S.W.3d 387, 393 (Tex.App.--Houston [1st Dist.] 2006, no pet.)("Appellant's uncorroborated testimony that he was misinformed by counsel does not meet his burden to show that his plea was involuntary."); Ex parte Okere, 56 S.W.3d 846, 856 (Tex.App.--Fort Worth 2001, pet. ref'd)(holding that the applicant failed to overcome the presumption that trial counsel was ineffective where the applicant failed to subpoena any of the attorneys involved in the preparation and presentation of his case to testify at his writ hearing, and the record contained no explanation for his trial counsel's actions); Ex parte Wong, No. 08-08-00003-CR, 2009 WL 3111827, at *2 (Tex.App.--El Paso Sept. 30, 2009, no pet.)(not designated for publication); Rodriguez v. State, 292 S.W.3d 187, 188 (Tex.App.--Amarillo 2009, no pet.)(finding appellant's complaint of ineffectiveness not firmly founded in the record when nothing showed counsel was responsible for his decision to plead true to the enhancement paragraph).
We note that we are not deciding whether Aguilar did or did not receive the effective assistance of counsel during trial. Instead, we are unwilling to affirm the trial court's conclusion that, with the record provided before us, Aguilar successfully defeated the strong presumption that the decisions of counsel during trial fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Delrio v. State, 840 S.W.2d 443, 447 (Tex.Crim.App. 1992); Thompson, 9 S.W.3d at 814. The trial court here appeared to simply assume that the instances Aguilar pointed out in his writ application and at the hearing were, in fact, instances of objectively unreasonable and unprofessional conduct, without firm support from the record. Because the court itself failed to discern any particular strategy or tactical purpose in counsel's trial presentation, it therefore assumed that there was none. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). This inverts the analysis. Id. at 836. Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Here, just like Aguilar's immigration claim, the habeas record is also silent as to Coronado's trial strategy for not pursuing the motion to suppress. From this habeas record, and given Aguilar's inconsistent writ testimony, one could conclude that there were legitimate and professionally sound reasons for counsel's conduct or one could speculate that there were not. See id. Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. Id. His counsel should also ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Id.
Aguilar failed to meet his burden to overcome the strong presumption of reasonable professional assistance and the trial court erred in concluding otherwise. The record here is silent as to why Coronado did not (a) advise Aguilar of the consequences of his guilty plea and (b) pursue a motion to suppress. Therefore, because Aguilar failed to rebut this presumption, the trial court abused its discretion in granting him relief based on these grounds. "Failure to make the required showing of . . . deficient performance . . . defeats the ineffectiveness claim." Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. Because Aguilar failed to prove the first prong of Strickland, we need not address the prejudice prong or the State's third point of error, the equitable laches argument. Accordingly, we sustain the State's second point of error. We reverse the trial court's judgment granting Aguilar habeas corpus relief on the grounds that his counsel was ineffective and render judgment denying Aguilar's application for writ of habeas corpus. March 9, 2016
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)