Ex Parte Chutima Wongjaroen v.--Appeal from Co Crim Ct at Law No 12 of Harris County

Opinion of June 24, 2008, Withdrawn, Affirmed and Substitute Memorandum Opinion filed November 6, 2008

Opinion of June 24, 2008, Withdrawn, Affirmed and Substitute Memorandum Opinion filed November 6, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00593-CR

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EX PARTE CHUTIMA WONGJAROEN, Appellant

On Appeal from the County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1458467

S U B S T I T U T E M E M O R A N D U M O P I N I O N

We withdraw our memorandum opinion of June 24, 2008 and substitute the following in its place.

Chutima Wongjaroen appeals the trial court=s denial of her application for a writ of habeas corpus on the ground that her guilty plea in a misdemeanor prostitution case was involuntary. We affirm.

I. Background

On March 1, 2006, appellant was charged with the misdemeanor offense of prostitution. She entered a guilty plea to the offense on March 3, 2006, and was sentenced to ten days confinement in the Harris County Jail. Appellant did not appeal the initial plea, but instead filed a writ of habeas corpus the following year, well after she had completed her ten-day sentence.

A. The Writ Application

In her writ, appellant argued she was unlawfully restrained by the prostitution conviction because she could potentially face deportation. She further claimed that she entered the guilty plea in that case on the advice of her counsel, Linda Norah-Davis, without understanding the potential immigration consequences. Because she was unaware that her conviction could result in eventual deportation or denial of her right to remain in the United States, she claimed that her plea was involuntary. She further asserted that her attorney did not conduct a sufficient investigation of the offense before advising her to plead guilty, which amounted to ineffective assistance of counsel.

Appellant attached numerous exhibits to her writ application, including the State=s information, her misdemeanor plea papers, the trial court=s judgment on a plea of guilty/nolo contendere, an affidavit by appellant, the offense report, and a letter from the U.S. Citizenship & Immigration Services Department of Homeland Security. The information alleged that appellant Aagree[d] to engage in sexual conduct . . . for a fee.@ In appellant=s plea papers, appellant acknowledged that she understood that if she was not a citizen of the United States, her guilty plea could result in Adeportation, exclusion from admission to this country, or denial of naturalization under federal law[.]@ The signed plea papers further indicated that appellant was satisfied with her attorney=s representation, that the attorney properly represented her, and that she had fully discussed her case with the attorney. Appellant acknowledged that she understood her rights and that she knowingly and voluntarily waived them by signing the forms. Additionally, the plea papers provided that they were translated verbatim from English to Thai by an interpreter.

The trial court=s judgment and sentence establish that the trial court found appellant knowingly, intelligently, and voluntarily waived her rights. In the judgment and sentence, the trial court further stated:

[T]he Defendant was admonished by the Court as required by law. It appearing to the court that the Defendant is mentally competent to stand trial, that the plea is freely and voluntarily made, and that the Defendant is aware of the consequences of [her] plea; the plea is hereby received by the Court and entered of record.

In her affidavit, appellant averred that she did not speak English or understand the legal system, and she explained that an attorney spoke with her through an interpreter. According to appellant, her attorney told her that if she admitted she committed the offense, she would be released from jail. Appellant further stated that her attorney did not discuss the facts of her case or potential defenses to the charge. Finally, she attested that she was not informed that conviction for a Asex crime@ would render her ineligible to extend her immigration status and remain in the United States. According to appellant, she would have pleaded Anot guilty@ if she had been warned of this.

In addition to her affidavit, appellant offered a copy of a letter she received from the U.S. Citizenship & Immigration Services Department of Homeland Security (the ADepartment@). In this letter, the Department stated that it could not process her I-485 application for change to her immigration status[1] because she had not submitted a medical examination form and certified copies of the information, judgment, and offense report relating to any conviction or arrest in the preceding five years. The letter concluded with the warning that unless appellant submitted the requested documents, her application would be denied. In response to this letter, appellant pursued habeas corpus relief from the trial court.

 B. The Evidentiary Hearing on the Application

The trial court conducted an evidentiary hearing on appellant=s habeas application on June 5, 2007. Appellant=s trial attorney, Linda Norah-Davis, appeared as a witness. Norah-Davis testified that she had practiced law for over twenty years, focusing on criminal, family, and some personal injury cases. She stated that she recalled her interactions with appellant because she rarely represented clients on an appointed basis, and even more rarely represented female clients in that capacity.

According to Norah-Davis, she met with appellant and discussed the case, first in English and then with the assistance of a Thai interpreter. She further testified that she had no trouble communicating with appellant in English, and although appellant did not request an interpreter, Norah-Davis requested one for the express purpose of addressing the immigration consequences of a guilty plea. She recounted that she informed appellant that three options were available: appellant could (1) plead not guilty to the offense and request a trial to prove the transaction did not involve her; (2) plead not guilty and bond out of jail; or (3) plead guilty and enter a plea agreement.

Norah-Davis stated she advised appellant not to plead guilty, and offered to investigate the case and to try to contact one of appellant=s friends who could obtain the funds to post appellant=s bond. Moreover, Norah-Davis testified that she repeatedly expressed her concerns to appellant that, because appellant was not a United States citizen, a guilty plea to the prostitution charge could compromise appellant=s immigration status, impede her ability to remain in the country, and prevent her from attaining permanent residence. Because of these misgivings, Norah-Davis stated that these concerns prompted her to request an interpreter to Amake sure that [appellant] fully understood all her options. Norah-Davis stated that she believed appellant fully understood all the possible consequences of a guilty plea: A[Appellant] heard [the consequences] twice; once with me and her in the holdover and then again when I had the interpreter, and then a third time she was admonished before the Bench while she was taking a plea.@ According to Norah-Davis, appellant nevertheless insisted that she wanted to plead guilty immediately so she could leave jail and return to her home in Louisiana.

Norah-Davis also testified that she investigated the case by reading the offense report and discussing the facts of the case with appellant. Although Norah-Davis admitted she did not listen to an audio recording of the communications between appellant and an undercover police officer on which the charges were based, she stated that this Awould have been the first thing that [she] would have done@ if appellant had decided to proceed to trial. Moreover, she stated that she explained to appellant that, because appellant did not initiate a discussion of payment for sexual services, a viable defense was available. Norah-Davis did not view videotapes associated with the case, but explained that the tapes would not have aided in appellant=s defense because they did not depict the interaction between appellant and the undercover officer. In sum, Norah-Davis testified that appellant pleaded guilty despite her warnings and contrary to her advice.

After hearing the testimony of Norah-Davis and the argument of counsel, the trial court found that appellant=s plea was Aknowingly, intelligently, and voluntarily made, after having been properly admonished of the consequences of her plea.@ Habeas relief was denied, and this appeal timely ensued.

II. Issues Presented

In two issues, appellant asserts that the trial court abused its discretion in denying her application for a writ of habeas corpus because (1) there was no evidence to support her conviction, and (2) her plea was involuntary in that it was the result of ineffective assistance of counsel.[2]

III. Analysis

A. Standard of Review

To prevail on a writ of habeas corpus, the proponent must prove her allegations by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995) (en banc). We review a trial court=s ruling on an application for a writ of habeas corpus under an abuse-of-discretion standard. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In conducting our review, we must be particularly mindful that the trial court, as fact finder at the writ hearing, is the exclusive judge of the credibility of the witnesses. See Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).

B. No-Evidence Claim

Although appellant asserts in her first issue that there is no evidence to support her conviction, this argument has no application where, as here, the accused enters a guilty plea to a misdemeanor. Compare Tex. Code Crim. Proc. Ann. art. 27.14(a) (Vernon 2006) (a plea of guilty to a misdemeanor permits the trial court to assess punishment with or without evidence) with id. art. 1.15 (evidence of guilt required for felony conviction). We therefore overrule appellant=s first issue.

C. Involuntary Plea

Appellant next asserts that her guilty plea was based on ineffective assistance of counsel and was therefore involuntary. When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, its voluntariness depends upon whether counsel=s advice was (1) within the range of competence for criminal defense attorneys, and (2) whether it is reasonably probable that, but for counsel=s error, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. See Ex parte Moody, 991 S.W.2d 856, 857B58 (Tex. Crim. App. 1999); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). Although an accused is guaranteed effective assistance in criminal prosecutions, this assurance generally does not extend to collateral aspects of the prosecution. See Ex parte Morrow, 952 S.W.2d 530, 536B37 (Tex. Crim. App. 1997) (en banc).

Appellant asserts that her trial counsel was ineffective for failing to investigate her case. But appellant=s trial counsel testified at the writ-application hearing that she did not advise appellant to plead guilty, but instead Aadvised her that she had a viable defense.@ Norah-Davis testified that she spoke with appellant about the facts of her case. She stated that she repeatedly expressed her concern about appellant=s immigration status and the possible impact of any plea on this status. According to Norah-Davis, she advised appellant of her options and the effect of a guilty plea. Norah-Davis testified that, notwithstanding her advice, appellant chose to plead guilty so she could get out of jail and return to Louisiana. The trial court, as the judge of the credibility of the witnesses at appellant=s writ-application hearing, was entitled to believe Norah-Davis=s testimony regarding her investigation and the advice she provided to appellant about her plea, even though appellant claimed otherwise in her affidavit.[3]

Moreover, the only indication that appellant would not have pleaded guilty had her trial counsel fully informed her of the immigration consequences of such a plea is found in her affidavit, in which she stated, AAlthough I am not a citizen of the United States, it was not explained that by being convicted of a >sex crime= I would in fact become ineligible to extend my immigration status and remain in the country.@ The fact that a guilty plea may result in deportation is considered a collateral consequence. State v. Jimenez, 987 S.W.2d 886, 888B89 (Tex. Crim. App. 1999) (en banc). Thus, her counsel=s alleged failure to advise her about such a collateral consequence as the impact of her guilty plea on her immigration status does not rise to the level of ineffective assistance of counsel. See Morrow, 952 S.W.2d at 536B37.

Based on the record before us, appellant has not established that Norah-Davis=s representation fell outside the range of competence demanded for criminal defense attorneys. Accordingly, we cannot say the trial court abused its discretion in denying appellant=s application for a writ of habeas corpus. We therefore overrule her second issue.

III. Conclusion

Having overruled appellant=s issues, we affirm the trial court=s denial of her application for a writ of habeas corpus.

/s/ Eva M. Guzman

Justice

Judgment rendered and Substitute Memorandum Opinion filed November 6, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] This form is entitled, AApplication to Register Permanent Residence or Adjust Status.@ See http://www.uscis.gov.

[2] The State has responded to appellant=s arguments first by alleging that she did not invoke the jurisdiction of the trial court because she did not establish that she was Aconfined@ or Arestrained@ as required by article 11.09 of the Texas Code of Criminal Procedure. Appellant filed her application for a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.09, which provides A[i]f a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed . . . .@ Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005). To be entitled to relief, a habeas corpus applicant must establish that he is either Aconfined@ or Arestrained@unlawfully at the time the writ application was filed. Dahesh v. State, 51 S.W.3d 300, 302 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). AConfinement@ or Aconfined@ includes Anot only . . . the actual, corporeal and forcible detention of a person, but likewise . . . any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits.@ Tex. Code Crim. Proc. Ann. art. 11.21. ARestraint@ or Arestrained,@ on the other hand, refers to a person who is Aunder the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.@ Id. art. 11.22.

Appellant alleges she is Arestrained in that she became deportable as a result of her plea and conviction pursuant to Section 212 of the Immigration and Nationality Act, as amended, and 8 U.S.C. '1182(a).@ Appellant further asserts that she Ahas been denied residency and faces removal from the country as a result of her plea of guilty and conviction.@ But appellant has provided no evidence that she has been denied residency or faces removal from the country. Instead, as discussed above, she provided a letter from the Department of Homeland Security indicating that her I-485 application was incomplete. This letter also states that, if appellant fails to furnish the requested information, her application will be denied. But it in no way indicates that her application will be denied due to her misdemeanor conviction. Appellant cites Ex parte Davis in support of her contention that she is restrained. 748 S.W.2d 555, 557 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d). In Davis, the First Court of Appeals concluded that the applicant was restrained by a misdemeanor conviction because he had been denied entry into the military based on that conviction. Id.

Here, appellant has provided no evidence that her misdemeanor conviction has impacted her immigration status. Appellant, however, has established that she was convicted of an offense that makes her an Ainadmissible alien.@ See 8 U.S.C.A. ' 1182(a)(2)(D). In her affidavit, she further claims that Ait was not explained that by being convicted of a >sex crime= I would in fact become ineligible to extend my immigration status and remain in the country.@ Although we are unconvinced that this implication in her affidavit is sufficient to invoke the jurisdiction of the trial court, in an abundance of caution, we address the merits of her claim.

[3] In addition, the record contains numerous indications that appellant was fully advised that her conviction could impact her immigration status, both in English by her lawyer and the trial court, and in Thai by an interpreter.