In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00192-CR __________________
EX PARTE ADELIO ALEXANDER BARAHONA
__________________________________________________________________
On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 18-30764 __________________________________________________________________
MEMORANDUM OPINION
Adelio Alexander Barahona appeals from a ruling made by the County Court
at Law Number 5 denying his writ of habeas corpus. In his petition, Barahona—a
non-citizen—asked the habeas court to overturn a conviction he incurred in 2018 on
a Class B misdemeanor DWI. The conviction depended on his guilty plea under a
plea bargain agreement, an agreement he claimed he would not have made had his
attorney advised him correctly about the consequences resulting from a conviction
on his status as a non-citizen. According to Barahona, he can no longer live in the
United States because of the conviction on the 2018 DWI because it disqualified him
1 from a federal program granting him Temporary Protected Status, a program
allowing certain non-citizens to remain in the United States.
Having reviewed the evidence the habeas court relied on in denying
Barahona’s petition and his motion for new trial, we hold the court abused its
discretion by denying Barahona’s request to set aside his conviction and grant his
request for a new trial. We reverse the habeas court’s order and grant Barahona’s
motion for new trial. 1
Background
This case has a complicated procedural history. This is the third time
Barahona has appeared in this Court seeking relief from the habeas court’s rulings
on his petitions seeking to overturn his conviction in a post-judgment proceeding in
which he challenged the validity of his plea.
The case that led to Barahona’s conviction on the 2018 DWI began in March
2017 when the State charged Barahona with a Class A misdemeanor DWI. In April
2018, Barahona and the State reached a plea agreement on that charge. Under the
agreement, in return for the State’s agreement to reduce the charge to a Class B
misdemeanor DWI, Barahona agreed to plead guilty. The trial court approved the
plea bargain following a hearing on the plea and then signed a judgment that tracks
1 Tex. R. App. P. 51.2(c)(1). 2 the terms of the plea bargain. In the judgment, the court found Barahona guilty on a
reduced charge, a Class B misdemeanor DWI. 2
The record before the habeas court includes the plea papers Barahona signed
as part of the plea he entered on his 2018 DWI. The plea papers warn Barahona of
several consequences associated with the plea. One of the warnings states that if the
defendant is “not a citizen of the United States, [a] plea of guilty or nolo contendere
may result in deportation, exclusion from admission to this country, or denial of
naturalization under federal laws[.]” The record before the habeas court also includes
the reporter’s record from the hearing on the plea. The transcript of the hearing
reflects that, before accepting the plea, the trial court asked Barahona’s attorney
whether he wanted “to go over any of the immigration issues on the record[.]”
Barahona’s attorney responded: “No. I’ve gone over it. I’ve consulted with an
immigration attorney and gone over the paperwork to file with the plea to feel
comfortable.” After that, Barahona pleaded guilty. The judgment the trial court
signed tracks the terms of the plea agreement between Barahona and the State.
2 Compare Tex. Penal Code Ann. § 49.04 (providing generally that driving while intoxicated is punishable as a Class B misdemeanor), with id. § 49.09(b) (providing that if the State alleges and proves the defendant has one prior conviction for a DWI, the second DWI is punished as a Class A misdemeanor). The judgment on which the conviction rests reflects the State abandoned the allegation in the indictment alleging Barahona had a prior conviction on another DWI. 3 A month after the trial court signed the judgment on Barahona’s 2018 DWI,
the director of the federal agency responsible for administering the rules applicable
to aliens living in the United States with protected status notified Barahona the
agency had decided to deny his request for Temporary Protected Status. Under the
program, aliens granted Temporary Protected Status, with the permission of the
Attorney General of the United States, may remain in the United States if qualified
under the rules and regulations applicable to the federal program. 3
After the agency notified him that he had not been granted Temporary
Protected Status, Barahona petitioned for habeas relief and sought to overturn his
guilty plea to the 2018 DWI. In his June 2018 petition for habeas relief, Barahona
alleged the attorney who represented him in the plea hearing gave him bad advice
about the immigration consequences certain to result from his plea. 4 After finding
the attorney who represented Barahona on his 2018 DWI “clearly complied with the
3 The notice Barahona received is in the record. It states: “The record establishes that you have been convicted of no fewer than two misdemeanor offenses committed in the United States and are therefore statutorily ineligible for TPS under [federal law].” The notice advised Barahona the agency had learned Barahona had incurred two convictions for DWIs, one in August 1999 and a second in 2018. The parties do not dispute that the 2018 DWI at issue is the second DWI conviction referred to in the notice. 4 See Ex parte Barahona, No. 09-18-00328-CR, 2018 Tex. App. LEXIS 8886, at *1 (Tex. App.—Beaumont Oct. 31, 2018, no pet.) (mem. op., not designated for publication). To be sure, the record shows the attorney who represented Barahona at trial is not the same attorney that he hired to represent him in the appeal he pursued from the habeas proceeding Barahona filed in 2018. 4 standards known to this court with regard to advising his client of [the] immigration
consequences” of his plea, the habeas court denied Barahona’s petition for habeas
relief in which he sought to overturn his plea.
Barahona appealed the ruling the habeas court made on the petition for habeas
corpus he filed in 2018. 5 On appeal, this Court held it lacked jurisdiction to consider
the appeal because the attorney who had filed it for Barahona failed to file a timely
notice of appeal.6
In February 2019, Barahona filed a second petition for habeas relief. Like his
2018 petition, Barahona’s 2019 petition challenged the validity of Barahona’s guilty
plea on his 2018 DWI. The habeas court conducted a hearing on the merits of the
habeas petition Barahona filed in 2019. Following the hearing, the habeas court
issued findings. Among those, the habeas court found Barahona had failed to show
why he failed to produce the evidence he used to support his 2019 application for
habeas relief since that same evidence was available to him when he sought relief in
the writ of habeas corpus he filed in 2018. But just in case a court were to disagree
with that ruling, the habeas court also found that Barahona had failed to establish he
was entitled to relief from his conviction on his 2018 DWI. Among its findings, the
habeas court in ruling on Barahona’s 2019 petition found: (1) Barahona failed to
5 Id. 6 See Tex. R. App. P. 26.2(a)(1). 5 establish there was a reasonable probability that, but for his trial attorney’s incorrect
advice, he would have pleaded not guilty and insisted on going to trial; (2) Barahona
was not entitled to effective counsel in the proceedings on his first petition for habeas
relief, the petition Barahona filed in June 2018; and (3) Barahona was not entitled to
an out-of-time appeal even though his attorney had failed to timely perfect an appeal
from the habeas court’s ruling on Barahona’s first habeas application for relief, the
application that Barahona’s attorney filed in June 2018. 7
Barahona then appealed from the ruling denying his 2019 petition for habeas
relief. This time, Barahona had another attorney, who timely perfected the appeal.
But in deciding that appeal, we agreed with the habeas court that Barahona had failed
to establish why the evidence he presented to support his 2019 application was not
reasonably available in 2018 when he filed his first application for the writ.8 But we
also disagreed with the habeas court that Barahona had not shown he had a right to
have his request to be allowed to pursue an out-of-time appeal from the ruling on the
first application Barahona filed for habeas relief. So we overruled the habeas court’s
ruling in part and granted Barahona the right to file an out of-time appeal.9
7 Ex parte Barahona, No. 09-19-00125-CR, 2020 Tex. App. LEXIS 1838, at *2-5 (Tex. App.—Beaumont Mar. 4, 2020, pet. ref’d) (mem. op., not designated for publication). 8 See Tex. Code Crim. Proc. Ann art. 11.59; Ex parte Barahona, 2020 Tex. App. LEXIS 1838, at *8-9. 9 Id. at *9-10. 6 Explaining that ruling, we stated: “The right to appeal a habeas court’s ruling is a
statutory right, granted by the legislature.” 10 To correct the habeas court’s error, we
reversed the ruling to the extent that the habeas court denied Barahona’s request for
an out-of-time appeal and directed the habeas court on remand to grant Barahona’s
request for permission to file an out-of-time appeal. 11
Within thirty days of the mandate issuing on Barahona’s second appeal,
Barahona filed a motion in the habeas court in which he asked the habeas court for
a new trial. Barahona attached several exhibits to his motion for new trial. The
documents attached to Barahona’s motion for new trial that are discussed in this
opinion are:
• An affidavit from the attorney who represented Barahona on his 2018 DWI.
• The plea papers Barahona signed when he pleaded guilty to the 2018 DWI. One set is in Spanish, while the other is in English.
• An affidavit Barahona signed in January 2019. The affidavit states: “[The attorney representing me on my 2018 DWI] further advised me, based on the information that he had obtained from the immigration attorney, that accepting the prosecution’s plea offer and entering a guilty plea in the instant case would not harm my immigration status, including my ability to remain in the United States under TPS status. Based on [the attorney’s] assurances to me that pleading guilty in the instant case would not negatively impact my immigration status, including my TPS status, I elected to plead guilty rather than go to trial.”
10 Id. at *10. 11 Id. at *12. 7 • A copy of the formal decision the federal agency issued on Barahona’s application for Temporary Protected Status. The agency’s formal decision reflects it reached a final decision on the application in October 2018. The notice advised Barahona that the agency found he was ineligible for Temporary Protected Status because he had incurred two criminal convictions, one in August 1999 and the second in October 2018, on misdemeanor DWIs.
• A transcript from the sentencing hearing the trial court conducted on Barahona’s 2018 DWI. The transcript reflects Barahona pleaded guilty under a plea agreement. Under the agreement, the State agreed to recommend that the trial court assess Barahona an “800-dollar fine and court costs, 3 days credited by time served, [and] ninety-day driver’s license suspension.” Thus, under the plea agreement, Barahona did not receive a sentence requiring him to spend any more time in jail.
• A transcript from the hearing the habeas court conducted on Barahona’s second habeas application, the application filed in 2019. The attorney who represented Barahona on his 2018 DWI testified in the 2019 hearing. The transcript of the testimony from the hearing shows the attorney testified that, after he spoke to an immigration attorney, he “gathered from that conversation [] that [if Barahona] plead[ed] to a second, reduced to a first [offense] on someone who had had the TPS status[, the additional conviction] was not going to hurt them or affect them. And then I conveyed that to Mr. Barahona.”
• The trial attorney who represented Barahona on his plea also testified during the 2019 hearing on Barahona’s second application for habeas relief that (1) he considered the 2018 case a “defendable case[;]” (2) he considered the plea agreement “a pretty good offer[;]” (3) he knew about Barahona’s conviction on an earlier DWI and he was concerned when he represented Barahona on the second DWI in 2018 whether a conviction in the case might affect Barahona’s status to receive Temporary Protected Status.
8 Issues
Barahona raises two issues in the brief he filed to support this appeal. But both
make the same arguments in claiming the habeas court abused its discretion in
denying the application Barahona filed for habeas relief in 2018 and in denying his
motion for new trial given the evidence he presented in that court. In arguing the
issues, Barahona relies heavily on the documents attached to his motion for new
trial.
Standard of Review and Applicable Law
Article 11.09 of the Texas Code of Criminal Procedure provides that
defendants convicted of misdemeanors may seek relief from such convictions by
filing applications for writs of habeas corpus. 12 In seeking habeas relief, the applicant
bears the burden of proving his claims by a preponderance of the evidence. 13 When
considering such applications, the habeas court acts as the sole factfinder and
resolves any dispute over issues of fact.14
In the appeal from a ruling on an application for habeas relief, the appellate
court views “the evidence in the record in the light most favorable to the judge’s
Tex. Code Crim. Proc. Ann. art. 11.09. 12
Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011); Ex parte 13
Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). 14 Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). 9 ruling and must uphold that ruling absent an abuse of discretion.” 15 When evaluating
a ruling by a habeas court that a defendant did not enter a knowing and voluntary
plea, we must determine whether the habeas court abused its discretion after
examining the ruling under the standards that apply to effective assistance of counsel
and in the light that favors the ruling the habeas court made in resolving any issues
of fact. 16 On appeal, we must give nearly total deference to the habeas court’s
findings of fact “when they are supported by the record, especially when those
findings are based on credibility and demeanor.”17 The same deferential standard
applies to both written and implied findings, assuming the finding are supported by
the record.18 But “if the resolution of the ultimate question turns only on the
application of legal standards, the appellate court reviews those determinations de
novo.” 19 And we will uphold the habeas court’s ruling if it is correct under the law
applicable to the case. 20 Even when the habeas court’s ruling turns on a mixed
question of law and fact, we defer to the habeas court’s factual findings when
15 Diamond v. State, 613 S.W.3d 536, 544 (Tex. Crim. App. 2020); Charles, 146 S.W.3d at 208. 16 See Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991) (op. on reh’g). 17 Diamond v. State, 613 S.W.3d at 544. 18 Id. 19 Id. 20 Id. 10 resolving the appeal, “but [we] review the [habeas court’s] ultimate legal conclusion
of materiality de novo.” 21
Barahona’s claims hinge on whether his plea was involuntary based on his
claim that the attorney who represented him in the plea hearing advised him
incorrectly about the immigration consequences of pleading guilty to a second DWI.
To establish a claim of ineffective assistance of counsel, petitioners must prove: (1)
trial counsel’s performance was deficient, and (2) prejudice resulted from trial
counsel’s deficient performance. 22 Because “there are countless ways to provide
effective assistance in any given case, a reviewing court must be highly deferential
and indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance[.]”23
A decade ago, the United States Supreme Court spelled out what an attorney
representing a non-citizen charged with a crime must do to provide the client with
effective assistance, explaining the attorney must give the client correct advice on
the immigration consequences of pleading guilty when those consequences are
clear.24 In Padilla, the Supreme Court held that when the consequences to the non-
21 Id. 22 Ex parte Aguilar, 537 S.W.3d 122, 126 (Tex. Crim. App. 2017) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). 23 Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011) (cleaned up). 24 Padilla v. Kentucky, 559 U.S. 356, 369 (2010). 11 citizen of being deported as a result of pleading guilty are “truly clear, . . . the duty
to give correct advice is equally clear.”25 The duty is imposed on the attorney
because “[t]he severity of deportation—the equivalent of banishment or exile—only
underscores how critical it is for counsel to inform [his] noncitizen client that he
faces a risk of deportation.” 26 Thus, before deciding to plead guilty, the non-citizen
has the right to be informed by his attorney about the significant consequences when
those consequences are clear and will result from the plea.27 That said, “[s]crutiny
of counsel’s performance must [also] be highly deferential, and every effort must be
made to eliminate the distorting effects of hindsight. Counsel’s performance should
be judged by whether it is reasonable under prevailing professional norms.” 28
Here, the habeas court’s ruling turns on three things, (1) whether the
immigration consequences of Barahona’s plea were truly clear; (2) whether
Barahona’s attorney failed to provide him with correct advice; and if so, (3) whether
he was prejudiced by the advice. 29 We review the first criteria under a de novo
standard while the remaining two are treated as mixed questions of law and fact.30
25 Id. 26 Id. at 373-74 (cleaned up). 27 Id. at 364; Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). 28 Ex parte Chavez, 560 S.W.3d 191, 203-04 (Tex. Crim. App. 2018) (cleaned up). 29 See Miller v. State, 548 S.W.3d 497, 498 (Tex. Crim. App. 2018). 30 Charles, 146 S.W.3d at 208. 12 On appeal, the State argues this Court should not consider the evidence
Barahona attached to his motion for new trial in resolving the appeal because that
evidence was not before the habeas court when it ruled on Barahona’s first
application for a writ of habeas corpus, the application he filed in 2018. But we
disagree given the unique circumstances prompting this appeal, an appeal that
resulted from our prior ruling granting Barahona the right to file an out-of-time
appeal. In Barahona’s second appeal, this Court ordered the habeas court to grant
Barahona’s request for an out-of-time appeal, a ruling that addressed Barahona’s
right to challenge the ruling the habeas court made on Barahona’s first application
for relief, the application that he filed in 2018. 31 On remand, however, Barahona
then filed another motion, a motion for new trial. So the question is whether that
motion was a timely-filed motion as it relates to the ruling the habeas court made in
deciding the first application Barahona filed for habeas relief in 2018.
The record shows that Barahona filed his motion for new trial within thirty
days of the date this Court issued its mandate. 32 Under Texas law, “[t]he effect of
granting an out-of-time appeal is that it restores the defendant to the position he
occupied immediately after the trial court signed the [appealable order].”33 For that
reason, the mandate restored Barahona to the position that he occupied in June 2018
31 Ex parte Barahona, 2020 Tex. App. LEXIS 1838, at *12. 32 Ex parte Barahona, 2018 Tex. App. LEXIS 8886, at *1. 33 Mestas v. State, 214 S.W.3d 1, 4 (Tex. Crim. App. 2007). 13 as of the date the habeas court signed its order denying the first application Barahona
filed for habeas relief. And Barahona moved for a new trial within thirty days of the
date our mandate issued, so it was a timely filed motion given the date the habeas
court signed the order in 2018 denying Barahona’s first petition seeking a writ. 34
The record also shows the habeas court denied Barahona’s motion for new
trial. The order denying the motion states the habeas court considered the exhibits
attached to the motion in denying the motion. So the record shows the habeas court
was aware of the motion for new trial and that it ruled on the motion.35
Rulings denying motions for new trial are reviewed for abuse of discretion.
Under that standard, the appellate court will reverse the ruling on the motion only if
the ruling was clearly erroneous and arbitrary. 36 A court abuses its discretion in
denying a motion for new trial only if no reasonable view of the record supports the
ruling.37 In our review of the ruling, we view the evidence used to support the motion
for new trial in the light that favors the ruling on the motion.38 When deciding
whether to grant a request seeking a new trial, the lower court is the sole judge of
34 See Tex. R. Civ. P. 329b(a) (providing that “[a] motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed”). 35 See Tex. R. App. P. 33.1 (Preservation; How Shown). 36 Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). 37 Id. 38 Id. 14 the credibility of the testimony and the affidavits supporting the motion.39 In the
appeal, we will examine the totality of the record while viewing the evidence in the
light that favors the ruling challenged in the appeal to assess whether, under an
objective standard, an abuse of discretion occurred.40
Analysis
Deficient Performance
To establish a claim of ineffective assistance, the defendant must prove the
representation he received in his trial fell below an objective standard of
reasonableness under the prevailing norms. 41 On appeal, Barahona argues the
evidence shows the attorney who represented him on his 2018 DWI told him that
pleading guilty would not adversely affect his right to stay in the United States.
Having carefully studied the evidence, we conclude the only evidence in the record
shows Barahona’s attorney gave him bad legal advice about the immigration
consequences that later resulted because of the plea.
As to the advice, the evidence shows the attorney representing Barahona in
2018 on the DWI testified he thought the consequences of Barahona’s decision to
plead guilty were unclear, yet he still advised Barahona to plead guilty. Barahona’s
attorney also testified that he told Barahona there would be no adverse consequences
39 Id. 40 Id. 41 Strickland, 466 U.S. at 688. 15 of pleading guilty based on the information he was given by an attorney who
practices immigration law, an attorney whose name the attorney could not recall.
But even if Barahona’s attorney got bad information from some other attorney and
relied on it, the advice he gave Barahona was wrong about the immigration
consequences that were the direct result of the plea. And one need look no further
than to the law to understand why the Attorney General could not give a non-citizen
in Barahona’s situation Temporary Protected Status. Under federal law, the Attorney
General of the United States cannot grant Temporary Protected Status to non-
citizens if the non-citizen has been convicted of committing two or more DWIs.42
Even more, Congress elected to prohibit the Attorney General from waiving the
multiple DWI provision in administering the program.43
Here, whether Barahona’s attorney performed deficiently turns solely on the
application of a legal standard given the undisputed evidence showing what the
attorney told Barahona and the law showing the consequences of a decision to plead
guilty under the circumstances Barahona faced were truly clear. But the record
shows the habeas court found otherwise, as that court found Barahona’s attorney
42 See 8 U.S.C. 1254a(2)(B) (providing that “[a]n alien shall not be eligible for temporary protected status under this section if the Attorney General finds that . . . the alien has been convicted of any felony or 2 or more misdemeanors committed in the United States”); see also Padilla, 559 U.S. at 368. 43 8 U.S.C. 1254a(c)(2)(A)(iii) (providing the Attorney General shall not waive the requirement in subsection 1254a(2)(B)). 16 gave him reasonable professional assistance under the standard that applied based
on “the standards known to this court[.]”
We conclude the evidence supports only one conclusion: Barahona’s attorney
gave him bad advice about the clear immigration consequences of pleading guilty to
the 2018 DWI. We hold the habeas court abused its discretion by finding
otherwise.44
Prejudice
To show prejudice, the defendant “must show that 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.”45 But courts should be careful before overturning a
defendant’s plea under circumstances that show the defendant benefitted from the
plea bargain and later decided, with the benefit of hindsight, that he would have
rather pleaded not guilty. 46
Several factors are used to evaluate claims alleging habeas courts abused their
discretion in rejecting a finding of prejudice. These include “the evidence supporting
an applicant’s assertions, the likelihood of his success at trial, the risks the applicant
44 Padilla, 559 U.S. at 369 (noting that “when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear”). 45 Hill v. Lockhart, 474 U.S. 52, 59 (1985). 46 Lee v. U.S., 137 S.Ct. 1958, 1967 (2017). 17 would have faced at trial, the benefits received from the plea bargain, and the trial
court’s admonishments.”47
In its brief, the State points to the fact the plea papers that Barahona signed as
part of his plea warned him of the immigration consequences of pleading guilty. The
habeas court also relied on those admonishments in its findings, as that court noted
the attorney representing Barahona on his 2018 DWI told the court in the plea
hearing that he had discussed the plea with Barahona before Barahona made his
decision to enter a plea. Add to that the fact the habeas court found that Barahona
answered the “standard plea bargain questioning, [he] plead[ed] guilty . . . and was
sentenced, as agreed” in the hearing on his plea.
To be sure, the plea papers contain Barahona’s signature. They also include a
boilerplate warning that generally addresses the potential immigration consequences
of pleading guilty. But the admonishment in the plea papers does not provide a clear
warning about the consequences to Barahona that were truly clear: instead, it states
that defendants who are not citizens of the United States “may” be deported if they
plead guilty or no contest. 48 And other than the written admonishment, the record
fails to show the trial court gave Barahona any additional warnings about the
immigration consequences of his plea in the hearing it conducted on his plea. Simply
47 Ex parte Torres, 483 S.W.3d 35, 48 (Tex. Crim. App. 2016). 48 Emphasis added. 18 put, the record reflects Barahona was never warned that, by pleading guilty, he would
be deported. The only reasonable view of his record is that Barahona received
affirmatively incorrect advice about the immigration consequences of his plea even
though the harm that would result was even at that time clear. 49
The only remaining question is whether Barahona would have pleaded guilty
had he received proper legal advice about the consequences he faced when he did
so.50 In considering that question, we note Barahona did not have to prove he would
have been acquitted had he pleaded not guilty and chosen to take the risks associated
with a trial. 51
Here, when Barahona decided to plead guilty, the only evidence in the record
shows that Barahona valued and relied on his attorney’s advice about the
consequences of his plea and that pleading guilty would have no effect on his
49 U.S. v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014); (quoting U.S. v. Urias- Marrufo, 744 F.3d 361, 369 (5th Cir. 2014) for the proposition that “[i]t is counsel’s duty, not the court’s, to warn of certain immigration consequences, and counsel’s failure cannot be saved by a plea colloquy”)). 50 See Lee, 137 S.Ct. at 1967 (noting that where deportation is the determining factor based on the evidence about the circumstances involved in that case, the defendant adequately demonstrated in the appeal that a reasonable probability existed to show he would have rejected the plea had he known that it would lead to mandatory deportation); Ex parte Torres, 483 S.W.3d at 48-49 (“[W]here the totality of the circumstances indicate that a defendant has placed a particular emphasis on the immigration consequence of a plea in deciding whether or not to accept it, this may constitute a circumstance that weighs in favor of a finding of prejudice.”). 51 See Ex parte Torres, 483 S.W.3d at 48. 19 Temporary Protected Status. 52 After Barahona learned that pleading guilty did have
an adverse consequence to his right to remain in the United States under Temporary
Protected Status, he filed a prompt application for habeas relief with the court.
Barahona’s affidavit also shows that with the benefit of correct advice, he
would have taken the risks associated with a trial to avoid the certain results to his
Temporary Protected Status that were the result of his plea.53 Nothing in the record
shows the State had a strong case against Barahona to establish the State would have
won had he chosen to go to trial on the 2018 DWI. Instead, the only evidence in the
record shows the outcome if such a trial was unclear. The trial attorney who
represented Barahona on his 2018 DWI testified in support of Barahona’s
application for habeas relief that he considered the case defensible. According to the
attorney, had the case gone to trial the evidence would have shown the driver of the
car Barahona rear ended while on a motorcycle fled the scene after the collision
occurred.
Other evidence in the record shows Barahona is closely tied to the United
States: He lives in Houston and has three children who live in the United States. The
children are 17, 14, and 5 years old. 54 None of the evidence shows Barahona has
close ties that still exist in his country of origin, El Salvador. To be fair, we note that
52 Padilla, 559 U.S. at 359; see also Torres, 483 S.W.3d at 44-45. 53 Lee, 137 S.Ct. at 1966. 54 See Ex parte Torres, 483 S.W.3d at 50. 20 Barahona received several benefits from his plea. Under the plea agreement,
Barahona was convicted on a reduced charge, a Class B misdemeanor DWI. Second,
by pleading guilty, Barahona avoided the restrictions that would have resulted to his
driver’s license had he been convicted on a Class A misdemeanor DWI.55 Third, by
pleading guilty to a Class B DWI, Barahona reduced the exposure he would have
otherwise faced to the longer jail sentence and fine available from a conviction on a
Class A misdemeanor DWI. Fourth, by pleading guilty, Barahona avoided the
increased fees he would have had to pay as compared to what he paid his attorney
for representing him on his plea.
Even so, we cannot agree that any reasonable view of the record supports the
habeas court’s ruling denying Barahona’s motion for new trial. Under the legal
standards applicable to motions for new trial, we hold the evidence the habeas court
considered when ruling on Barahona’s motion for new trial shows Barahona
received ineffective assistance of counsel and suffered prejudice as a direct result of
making an involuntary plea. We conclude that the only objective view of the record
is that reasonable probability existed that Barahona, but for his attorney’s errors,
“would not have pleaded guilty and would have insisted on going to trial.” 56
55 Compare Tex. Penal Code Ann. § 49.04, with id. § 49.09. 56 Lee, 137 S.Ct. at 1965 (quoting Hill, 474 U.S. at 118). 21 Conclusion
For the reasons explained above, we hold the habeas court abused its
discretion in denying Barahona’s motion for new trial. We hold that Barahona
received ineffective assistance on his 2018 DWI and that he proved his plea was
involuntary.57 We reverse the habeas court’s order and remand the case for a new
trial.58
REVERSED AND REMANDED.
_________________________ HOLLIS HORTON Justice
Submitted on May 4, 2021 Opinion Delivered August 25, 2021 Do Not Publish
Before Kreger, Horton and Johnson, JJ.
See Ex parte Aguilar, 537 S.W.3d at 129 (holding that ineffective assistance 57
of counsel’s erroneous advice of relevant immigration consequences rendered the defendant’s plea involuntary). 58 See Tex. R. App. P. 31.3. 22