Ex Parte Olvera – Sherman & Plano, TX Criminal Defense Lawyer (Part 4)

*4 Under the second prong of Strickland, Olvera must show by a preponderance of the evidence that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a jury trial. At the habeas hearing, Olvera testified that he and his sister asked counsel several times about the immigration consequences of a guilty plea. Olvera testified that if he had known he would be deported or denied reentry into this country by pleading guilty he “would have never pled guilty, ever” and would have gone to trial.

The record shows that Olvera was a legal permanent resident. At Olvera’s request, his supervision officer gave him written permission to travel to Mexico with family for the Christmas holidays. Although the record does not show that Olvera was deported,FN1 he was denied reentry because of his guilty plea when he tried to return to the United States after the holidays. In his writ application, Olvera argued that because he is a legal permanent resident, he would not have pleaded guilty if he had known he would be deported or denied reentry. In addition, he argued that he would have tried the case because he had “a great defense” to the charge. He argued that he did not know that the officer, who was working as security at a dance hall, was a police officer because the officer approached him from behind. And the officer testified at the habeas hearing that, as he was arresting Olvera, Olvera said, “I didn’t know you were the police. I didn’t know you were the police.”

We conclude that Olvera met his burden to show a reasonable probability that, but for his counsel’s erroneous advice, he would not have pleaded guilty and would have insisted on going to trial. See Moody, 991 S.W.2d at 857-58. We also conclude that Padilla and Martinez apply retroactively to the time of the guilty plea. See Ex parte Tanklevskaya, 361 S.W.3d 86, 95 (Tex.App.-Houston [1st Dist.] 2011, pet. filed); Ex parte De Los Reyes, 350 S.W.3d 723, 729 (Tex.App.-El Paso 2011, pet. granted); accord United States v. Orocio, 645 F.3d 630, 641 (3d Cir.2011); but see United States v. Amer, No. 11-60522, 2012 WL 1621005, at *3 (5th Cir. May 9, 2012) (holding Padilla does not apply retroactively); Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011) (same), cert. granted, — U.S. —-, 132 S.Ct. 2101, —L.Ed.2d —-, 80 U.S.L.W. 3429, 2012 WL 1468539, at *1 (U.S. Apr. 30, 2012).

We sustain Olvera’s second issue and conclude that the trial court abused its discretion by denying habeas relief on the ground that trial counsel failed to adequately advise Olvera about the immigration consequences of a guilty plea. Because of our resolution of this issue, we do not need to address the remaining issues.

CONCLUSION We reverse the trial court’s order denying Olvera’s application for a writ of habeas corpus, vacate the underlying judgment, and remand to that court for further proceedings.

FN1. Olvera’s counsel states in his appellate brief that Olvera has since been deported.