Ex Parte Jose Eduardo Torres

Court of Appeals of Texas·Decided June 4, 2015·No. 03-14-00169-CR·Published

Opinion

ACCEPTED 03-14-00169-CR 5555268 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/4/2015 6:25:04 PM JEFFREY D. KYLE CLERK Nos. 03-14-00169-CR

EX PARTE § IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS VS. § THIRD JUDICIAL 6/4/2015DISTRICT 6:25:04 PM JEFFREY D. KYLE JOSE EDUARDO TORRES § TRAVIS COUNTY, Clerk TEXAS

MOTION FOR REHEARING EN BANC

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

I. Statement of the Case

On September 10, 2013, Appellant pleaded guilty before the Honorable

Bruce Boyer in the 207th District Court to the offense of Delivery of Marihuana for

Remuneration, in an Amount Less than 4 Ounces, in a School Zone under Texas

Health & Safety Code Section 481.120. Appellant was sentenced to 4 years of

deferred adjudication probation. As a result of the plea, Appellant was taken into

custody by agents of the Federal Government’s Department of Immigration and

Customs Enforcement (ICE). On January 3, 2014, Appellant filed an Original

Application for a Writ of Habeas Corpus pursuant to Article 11.072 of the Texas

Code of Criminal Procedure. In the Application, Appellant claimed that his plea

was involuntary based on the ineffective assistance of his trial counsel, Mr. Kimbel

Brown. Appellant alleged that he was both insufficiently advised and affirmatively misadvised regarding the immigration consequences of a plea of guilty to the

charged offense. Appellant specifically alleged that Mr. Brown failed to advise him

that he would be subject to automatic deportation without the possibility of

discretionary relief, a result of his plea, telling him only that he would be

“deportable” upon a plea of guilty. Appellant further asserted that he was

affirmatively misadvised when Mr. Brown then explained that despite being

“deportable” that he might not be deported because the amount of marihuana

involved was so small, that if he stayed out of trouble ICE may not come looking

for him, and that he could obtain relief under the DREAM Act. Appellant

contended that Mr. Brown’s advisals induced him to plead guilty because they

provided him false assurances that he had opportunities to remain in the US despite

his conviction. Appellant’s contentions were supported by the affidavit of Kimbel

Brown, who stated in his affidavit that he never told Appellant that he was subject

to automatic removal, lacked any possibility of discretionary relief, and told him

that he had opportunities to remain in the US despite his plea of guilty. The State

of Texas filed an answer in opposition to the Applicant’s writ. On January 27,

2014 the Court held a hearing on the merits of Applicant’s writ. The Court denied

granting Appellant’s request for relief on the basis that the Court felt a trial would

only result in a conviction. The trial court issued its order denying relief on March

13, 2014. Appellant filed a timely request for findings of fact and conclusions of law on March 19, 2014. The trial court then issued its findings of fact and

conclusions of law on March 26, 2014.

Mr. Torres timely appealed the denial of his Application for Writ of Habeas

Corpus. Volume 1 of Clerk’s Record(CR), pgs. 56-57.

This Court issued an opinion on April 29, 2015 affirming the trial court’s

denial of Appellant’s petition for writ of habeas corpus. Ex Parte Torres, ___

S.W.3d ___, p. 14, No. 03-14-00169-CR, (Tex. App—Austin, April 29, 2015).

II. This Court’s Opinion

This Court held that Appellant failed to prove by a preponderance of the

evidence that Appellant, but for his counsel’s allegedly deficient advice, would

have insisted on a trial rather than plead guilty. (Slip. Op. 14). In reaching this

conclusion, the Court reasoned that Petitioner’s choice to pursue a trial in his cause

would not have been rational,

The habeas court considered the strong evidence of Torres’s guilt, the facts that he faced up to two years confinement and a $10,000 fine if convicted and would continue to face deportation if convicted at trial, the lack of evidence of any factual or legal defenses, and the lack of evidence of any other plea deal that would have helped him avoid deportation. These factors support the conclusion that a rational noncitizen defendant would likely not risk a trial since the result would be near-certain conviction with a harsher criminal penalty in addition to the same immigration consequences of pleading guilty. Id. The court reasoned that given these factors, a rational noncitizen would not

have risked a harsher punishment after near-certain conviction in addition to

deportation.

This Court also held that the trial court would not have erred in finding the

deficient advice of Appellant’s counsel, Kimbel Brown, harmless. Id. In support of

this finding the Court noted that Appellant’s counsel had advised him that he “may

or may not be deported”, and thus Torres’ decision to plead guilty “was not

predicated on his mistaken belief that there was no risk that he would be deported

as a consequence.” Id at 13. The Court also held that Torres failed to present

evidence that his immigration attorney had also misadvised him. Id. Coupling this

with Torres’ assertion at his plea hearing that he understood the “possible

ramifications” of his plea, this Court determined that such facts supported “the

inference that this was not a case in which Torres was uninformed of the

immigration consequences of his guilty plea”. Id.

In holding that a decision by Appellant to pursue trial would not be rational,

this Court placed nearly exclusive focus on Petitioner’s assumed evidence of guilt

and whether or not he could succeed at trial, despite acknowledging that success

under Strickland’s prejudice prong was not predicated upon demonstrating a

favorable outcome at trial. Id at 12. In looking exclusively at the evidence against

Appellant, this Court ignored the crux of Appellant’s claim: that he had more important reasons to fight his case besides simple guilt and innocence, specifically,

his life here in the United States. Had this Court examined the “special

circumstances” of Petitioner’s case, it is clear that his choice to pursue trial would

have been rational.

III. Reasons for Rehearing

Brown’s Deficient Performance Was Not Harmless

In reaching the conclusion that Torres was not uniformed of the possibility

of deportation this Court relied on the premise that because Torres’ counsel had

informed him that he “may or may not” deported, “Torres’s decision to plead

guilty to the offense was not predicated on his mistaken belief that there was no

risk that he would be deported”. Id. at 13. Such reliance is to ignore Padilla’s

mandate that a non-citizen defendant be given clear and specific advice regarding

the deportation consequences. Padilla v. Kentucky, 559 U.S. 356, 369 (2010). By

using the fact that Mr. Torres knew there was simply a risk he could be deported,

this Court would simply revert to the Pre-Padilla rule that a general admonition of

“you may or may not be deported” is always sufficient to apprise a non-citizen

defendant of the consequences of a plea, thereby rendering Padilla irrelevant. In

suggesting that simply advising a noncitizen defendant who faces certain

deportation only that there is a “risk” of deportation, this Court would do the exact

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