Arturo Gonzales v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-027-CR

ARTURO GONZALES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 17,785-361

O P I N I O N

Gonzales, a citizen of Mexico, was indicted on December 3, 1987, for the offense of possession of a controlled substance. The State and Gonzales entered into a plea-bargain agreement in which Gonzales agreed to plead guilty in exchange for a recommendation that punishment be set at seven years' confinement in prison, probated for seven years, a $2000 fine, and 200 hours of community service. The trial court accepted the plea at a February 24, 1988, hearing and probated Gonzales's sentence for seven years as agreed.

On August 27, 1991, Gonzales filed an application for a post-conviction writ of habeas corpus and petition for writ of error. The trial court ordered that the application be forwarded to the Court of Criminal Appeals, which subsequently denied jurisdiction. Gonzales then filed his amended application for writ of habeas corpus with the district clerk's office on January 8, 1992. The court conducted a hearing on the application and held that Gonzales freely, voluntarily, and intelligently pleaded guilty to possession of a controlled substance and that he understood that he might be deported as a consequence of his plea. Gonzales is appealing the trial court's denial of relief.

Gonzales claims in point one that his plea was not voluntary because his free will and judgment were overcome by a mistake of fact. He contends that he did not realize at the time he entered his plea, and was not informed by his attorney, that he was charged with a felony rather than a misdemeanor and that his plea would affect his immigration status. He further asserts that his attorney did not explain the risk of deportation. Gonzales blames the language barrier his attorney did not speak Spanish and he does not speak English and he claims that he did not understand much of what the interpreter translated.

The trial court filed findings of fact and conclusions of law following the February 25 hearing. The pertinent findings are:

In the plea hearing, Gonzales remembered the Judge saying he could be deported;

He did understand he could be deported, but not other things.

Through an interpreter, Gonzales's attorney explained the difference between felony and misdemeanor and the difference in the range of punishment.

[Gonzales] was aware he was charged with a felony with a ten-year possible punishment.

[The interpreter] was with Gonzales and his attorney before the plea, went over the different documents with [Gonzales] and interpreted what the documents meant and what he would sign.

She also interpreted at the plea hearing.

Regarding the plea, [Gonzales] answered the questions and told the interpreter he wanted to continue.

The Court admonished [Gonzales] as to the effect of being deported if he continued with his plea. He freely, voluntarily, and intelligently chose to continue with the plea.

The court filed these conclusions of law:

The Court properly admonished [Gonzales] as to the possibility of deportation if he persisted with his plea.

He freely, intelligently, and knowingly chose to continue with the plea.

The Court explained the range of punishment for possession of a controlled substance.

[Gonzales] freely, voluntarily, and intelligently pled guilty to possession of a controlled substance while understanding that the consequences of his plea could be deportation.

The statement of facts from the hearing supports each of the court's findings and conclusions. The record reflects that the court, after obtaining Gonzales's response that he was not a United States citizen, then asked Gonzales, "[D]o you understand if you continue with your plea and I find that you are guilty you could be deported by the immigration department?" He answered affirmatively, and the court then asked whether "you understand that that could happen as a result of your pleading guilty today?" Gonzales again indicated that he understood. The record further reveals that, after explaining the punishment range and admonishing Gonzales in detail that his plea constituted a waiver of his constitutional rights, the Court inquired,"[D]o you still wish to proceed with the plea understanding that this is a second-degree felony?" Again, Gonzales answered that he understood. Thus, the court fully complied with the requirements for admonishment set forth in article 26.13 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 1992). Point one is overruled.

Gonzales complains in point two that he was denied effective assistance of counsel by not being advised of the risk of deportation if he pleaded guilty to a felony charge. To succeed on this point, Gonzales must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Gonzales has failed to show that a reasonable probability exists that, but for his counsel's errors, as alleged in point one, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

As stated above, a complete review of the plea hearing demonstrates that Gonzales was questioned several times by the court whether he understood the proceedings and wished to continue. The interpreter during the plea hearing, having listened to a tape of the plea hearing, testified at the writ hearing that Gonzales did not hesitate at all in proceeding with the plea, even after he was informed by the trial court that he was pleading guilty to a second-degree felony. We are unable to say that counsel for Gonzales committed any error that affected Gonzales's knowing, voluntary plea of guilty. Point two is overruled.

We affirm the judgment.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 18, 1992

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