COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE: BLANCA RAMIREZ

'

'

'

'

'

'

No. 08-11-00073-CR

Appeal from the

112th District Court 

Of Pecos County, Texas 

(TC# 2938)

O P I N I O N

The State appeals the trial court’s grant of a writ of habeas corpus in favor of Appellee. 

The State’s sole point of error is that the trial court erred in granting Appellee’s request for habeas 

relief. For the reasons that follow, we affirm.

BACKGROUND

Appellee was indicted on two counts of Indecency with a Child on April 27, 2009, with 

both charges classified as second-degree felonies. Attorney Frank Lacy was retained to act as 

Appellee’s counsel. Pursuant to a negotiated plea agreement, Appellee pleaded guilty to Count 

Two of the indictment, and Count One was considered under Texas Penal Code § 12.45. The 

court entered an Order of Deferred Adjudication, sentencing Appellee to five years of deferred 

adjudication/community supervision, community service, and court costs. At the hearing, the 

trial court gave Appellee written and verbal admonishments regarding the entry of her plea. The 

written admonishment (#6) indicates that a plea of guilty “may result in your deportation, or your 

exclusion from admission to this country, or your denial of naturalization under federal law.” The 

court’s verbal admonishment was that “a plea of guilty or nolo contendere in connection with this 
2

offense, that can result in your deportation or exclusion of admission to this country or denial of 

naturalization under federal law.”

On July 3, 2010, the Department of Homeland Security detained Appellee and commenced 

removal proceedings against her because of her guilty plea.

Appellee filed a post-conviction application for writ of habeas corpus (“Application”) 

pursuant to Article 11.072 of the Texas Code of Criminal Procedure on December 17, 2010. In 

her Application, Appellee alleged that “Mr. Lacy (a) failed to investigate the immigration 

consequences of pleading guilty to the instant offense, (b) failed to seek an immigration-safe legal 

disposition for Ms. Ramirez, and (c) failed to properly advise Ms. Ramirez of the ‘succinct, clear 

and explicit’ legal consequences Ms. Ramirez would face if she entered a guilty plea to the instant 

offense.” The State filed a response to the Application on January 14, 2011, and Appellee filed a 

reply to that response on January 25, 2011.

In Appellee’s Application, she included an affidavit in which she stated, “Mr. Lacy did not 

tell me that I would lose my immigration papers if I pled guilty. He certainly did not tell me that 

I was facing certain deportation.” Appellee’s affidavit also stated:

If I had known the immigration consequences, including my present incarceration, 

I would have fought my case or asked Mr. Lacy to try to get a plea bargain that did 

not involve my deportation or at least give me a chance to fight my immigration 

case.

On January 25, 2011, the habeas court heard the Application and, following a hearing 

where testimony was provided by a number of witnesses, entered an order granting the writ of 

habeas corpus.

At the habeas hearing, Mr. Lacy testified that he advised Appellee “that she would likely be 

deported or could be deported as a result” of her plea. Mr. Lacy provided an affidavit in the 
3

State’s response where he stated “I specifically advised Ms. Ramirez of the legal consequences of 

her plea,” however, Mr. Lacy testified that he did not advise Appellee that pleading guilty to 

indecency with a child is a presumptively mandatory deportation offense and that immigration law 

did not allow an immigration judge to cancel or pardon said deportation. Mr. Lacy specifically 

stated “I did not tell Ms. Ramirez she would be deported with absolute certainty. I did advise 

Ms. Ramirez that she could be deported as a result of her plea.” Mr. Lacy testified that “there are 

very few absolutes. So I was careful not to say absolutely this would happen or absolutely this 

would happen.”

At the conclusion of the hearing, the trial court expressed concerns about the 

admonishments given by Mr. Lacy to Appellee and found that Appellee was given incorrect legal 

advice:

The Court: The testimony today from Mr. Lacy causes the Court concern just 

from the perspective that he was adamant that he told her that a plea in this case 

could – that she could be deported, that she could, that there is a possibility.

And the Court is of the opinion that . . . if you look at the federal statutes, 

that advice is incorrect because it’s not that she could be deported; she will be 

deported.

So I find that counsel’s advice to her was incorrect, in that he said – he said 

that she could be deported, which lends itself to the idea, well, I can take a gamble 

and hope that something will come up between now and the time that immigration 

gets ahold of this thing.

It lends itself to a prayer that she will not be deported, where, if you read the 

statutes, the federal statutes, the advice to her should have been there will be certain 

deportation on your plea of this.

The habeas court specifically found that “he [Mr. Lacy] gave her [Appellee] incorrect legal 

advice,” and that “I do find that in this situation the lawyer gave her incorrect information as to 

what the consequence was. And, you know, to his defense, at the time he made that, this was a 
4

collateral issue.”1The habeas court also found that the trial court’s admonishment number 6 was 

incorrect, based on Appellee’s circumstances.2 The habeas court did draw a distinction between a 

trial court’s admonishments and the legal advice an attorney is to give to a client, and noted that 

while Mr. Lacy correctly performed as a lawyer in providing Appellee advice, also indicated that 

Mr. Lacy’s advice was not correct. The habeas court noted that while there was no “bad conduct” 

on the part of Mr. Lacy, the advice given was not the correct advice, that is, that “you are going to 

get deported if you plead guilty to this crime.” The habeas court performed an analysis under 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed2d 674 (1984). The court found

obvious prejudice and found that because Appellee was given incorrect legal advice, even if on a 

collateral issue, “that it casts a shadow on the issue of freely and voluntarily made.” 3The State

timely appealed.

DISCUSSION

The State raises a single point of error, arguing that the habeas record fails to establish that 

Appellee’s trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed2d 674 (1984), and that the habeas court erred in granting the habeas

relief requested by Appellee.

The decision to grant or deny an application for writ of habeas corpus rests within the trial 

 

1 The habeas court briefly touched on the Padilla v. Kentucky, – – U.S. – –, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 

(2010) arguments raised by both parties in the underlying case, but made no findings on whether Padilla applied to the 

case.

2 Admonishment #6:

If you are not a citizen of the United States of America, a plea of guilty or nolo contendere for or in 

connection with the offense with which you are charged in this case may result in your deportation, 

or your exclusion from admission to this country, or your denial of naturalization under federal law.

3 The State states that the court filed findings of fact and conclusions of law, but the appellate record before us does 

not contain any such findings or conclusions. The record reflects that the habeas court asked counsel for Appellee to 

prepare an order and findings of fact.
5

court’s discretion. We apply an abuse of discretion standard when reviewing a trial court’s 

decision to grant or deny habeas relief. Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App.

2006); Washington v. State, 326 S.W.3d 701, 704 (Tex.App.--Houston [1st Dist.] 2010, no pet.); 

Ex parte Torres, 08-10-00330-CR, 2012 WL 1431660 (Tex.App.--El Paso Apr. 25, 2012, no 

pet.)(not designated for publication). We view the facts in the light most favorable to the trial 

court’s ruling and defer to the trial court’s implied factual findings that are supported by the record. 

Wheeler, 203 S.W.3d at 325-26; Washington, 326 S.W.3d at 704. See also Ex parte Peterson, 

117 S.W.3d 804, 819 (Tex.Crim.App. 2003)(per curiam)(holding that reviewing courts afford 

almost total deference to the court’s determination of the historical facts supported by the record, 

especially when those facts are based on an evaluation of credibility and demeanor, and that if the 

trial court does not make explicit findings that the reviewing court will grant deference to implicit 

findings that support the court’s ruling), overruled on other grounds by Ex parte Lewis, 219 

S.W.3d 335 (Tex.Crim.App. 2007); Ex parte Torres, 2012 WL 1431660, at *2 (noting same). We 

will reverse the trial court’s ruling only if we conclude it is arbitrary, unreasonable, and made 

without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 

(Tex.Crim.App. 1990)(op. on reh’g). We must affirm a trial court’s ruling on a habeas petition if 

the ruling is correct based on any legal theory before the court, regardless of whether some of the 

reasons given by the court appear to be faulty. Ex parte Carpio-Cruz, 08-10-00240-CR, 2011 

WL 5460848, *3 (Tex.App.--El Paso Nov. 9, 2011, no pet.).

To be entitled to habeas relief on the basis of ineffective assistance of counsel, a petitioner 

must prove by a preponderance of the evidence that counsel’s performance was deficient and that 

she was prejudiced as a result. Ex parte Carpio-Cruz, 2011 WL 5460848, at *4. To establish 
6

deficient performance, the petitioner must show that counsel’s performance fell below an 

objective standard of reasonableness based on prevailing professional norms. To establish 

prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s 

deficient performance, the result of the proceeding would have been different. Ex parte 

Carpio-Cruz, 2011 WL 5460848, at *4, citing Perez v. State, 310 S.W.3d 890, 893 

(Tex.Crim.App. 2010).

Appellee was charged with two counts of indecency with a child, each a second-degree 

felony, and entered into a negotiated plea agreement where Appellee agreed to plead guilty to one 

offense and the other would be considered under Texas Penal Code § 12.45. The trial court 

deferred adjudication of guilt and placed Appellee on community supervision for a period of five 

years.

The federal government may commence deportation proceedings against Appellee based 

on her guilty plea to a charge of indecency with a child. Such an offense is an “aggravated 

felony” for purposes of removal proceedings. See 8 U.S.C. § 1227(a)(2)(A)(iii)(2008); 8 U.S.C. 

§ 1101(a)(43)(A)(2011); Delgado-Reynua v. Gonzales, 450 F.3d 596, 597 (5th Cir. 2006)(noting 

same). Deferred adjudication is a “conviction” for immigration purposes and constitutes a valid 

basis for deportation. Garnica-Vasquez v. Reno, 40 F.Supp.2d 398, 405-6 (W.D. Tex 1999). 

Based on the plain language of the applicable federal statutes, and for purposes of immigration, 

Appellee was convicted of an aggravated felony and was subject to removal proceedings.

The State argues that the habeas court erred in concluding that: (1) Mr. Lacy failed to 

investigate Appellee’s immigration status; and (2) failed to advise her that a guilty plea “would” 

result in a deportation. We disagree.
7

As we noted in Ex parte Carpio-Cruz, advising a defendant that a guilty plea “could” result 

in removal and that the defendant “‘could’ face immigration consequences” renders counsel’s 

advice deficient when the applicable law would result in removal proceedings. Ex parte 

Carpio-Cruz, 2011 WL 5460848, at *7. Specifically, we noted:

Counsel testified that she was aware of and understood all of these statutes, 

yet she only advised Carpio that his guilty plea ‘could’ result in removal and he 

‘could’ face immigration consequences. Because Carpio’s deportation was 

‘practically inevitable,’ this advice was deficient. See Padilla, 130 S.Ct. at 1480; 

Ex parte De Los Reyes, 2011 WL 3841379, at *6; see also Salazar v. State, 2011 

WL 4056283, at *3 (Tex.App.--Eastland Aug. 31, 2011, no pet.h.)(‘[T]he correct 

advice, which was that the plea of guilty would result in certain deportation, was 

not given. Both the terms “likelihood” and “possibility” leave open the hope that 

deportation might not occur.’); Ex parte Romero, 2011 WL 3328821, at *2 

(Tex.App.--San Antonio Aug. 3, 2011, no pet.)(‘Because trial counsel only 

informed Romero about “possible” immigration consequences where the law made 

deportation a virtual certainty, counsel’s performance was deficient.’).

Ex parte Carpio-Cruz, 2011 WL 5460848, at *7.

Counsel’s advice that a defendant “could” face immigration consequences has been found 

to be inadequate for purposes of the first prong of Strickland. See Ex parte Olvera, ---S.W.3d ---, 

2012 WL 2336240 (Tex.App.--Dallas June 20, 2012, no pet.h.). There, counsel advised his client 

that he “could” be deported and that there “can” be a deportation. Ex parte Olvera, 2012 WL 

2336240, at *2-3. The Court of Appeals found that because the immigration consequences in that 

case were “clear” (that there would be an automatic deportation and denial of reentry), counsel had 

a duty to give his client “clear advice about those consequences.” Id., at *3. Advising the 

defendant that he “could” be deported, not that the guilty plea would result in automatic 

deportation, indicated that counsel’s performance fell below an objective standard of 

reasonableness, thereby satisfying the first prong of Strickland. Ex parte Olvera, 2012 WL 

2336240, at *4.
8

Here, both the trial court and Appellee’s trial counsel advised Appellee that she “could” be 

subject to immigration consequences which, in light of the fact that the conviction “would” result 

in deportation proceedings, was deficient. This failure indicates that Appellee met the first prong 

of Strickland: that her counsel’s performance fell below an objective standard of 

reasonableness.4

To establish the second prong of Strickland, Appellee must show that there was a 

reasonable probability that, but for counsel’s deficient performance, the result of the proceeding 

would have been different. Ex parte Carpio-Cruz, 2011 WL 5460848, at *4.

The State contends that Appellee failed to argue and allege the right kind of prejudice 

necessary to meet the second Strickland prong. The State refers to Hill v. Lockhart, 474 U.S. 52, 

60, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985) and Ex parte Jones, 05-93-01796-CR, 1997 WL 

778656 (Tex.App.--Dallas Dec. 19, 1997, no pet.)(not designated for publication) in support of 

this argument. In Hill, the habeas petitioner did not allege that he would have pleaded not guilty 

and insisted on a trial if he had been advised of parole eligibility correctly, and alleged no special 

circumstances showing he placed emphasis on parole eligibility in deciding whether or not to 

plead guilty. Hill, 474 U.S. at 60, 106 S.Ct. at 371. In Jones the Court of Appeals noted that the 

petitioner did not allege special circumstances and he failed to allege that, had his counsel 

discovered certain unsigned papers, he would have pleaded not guilty and sought a trial. Jones, 

1997 WL 778656, *2. Specifically, the court noted that “Appellant merely contends he would 

have been in a more favorable bargaining position with the State, not that he would have changed 

his plea.” Jones, 1997 WL 778656, *2.

 

4 Because the habeas court did not abuse its discretion in holding that the failure to advise of the immigration 

consequences of the guilty plea would result in immigration consequences, we do not address the State’s contention of

error regarding investigation of immigration status.
9

In the instant case, Appellee indicated that she has no ties to Mexico, has lived in the 

United States since she was five, that her family resides in the United States and all of her children 

are United States citizens. As noted above, Appellee’s affidavit stated:

If I had known the immigration consequences, including my present incarceration, 

I would have fought my case or asked Mr. Lacy to try to get a plea bargain that did 

not involve my deportation or at least give me a chance to fight my immigration 

case.

Appellee’s affidavit indicates that there were circumstances outside of the pleadings which 

could be considered “special circumstances,” and that had she received appropriate legal advice 

she would have fought her case. These facts distinguish the instant case from Hill and Jones. 

The State next argues that the habeas court erred in finding that Appellee’s plea was 

involuntary. We disagree. Counsel’s advice can provide assistance so ineffective that it renders 

a guilty plea involuntary. Hill, 474 U.S. at 56, 106 S.Ct. at 369. A guilty plea is not knowing or 

voluntary if made as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 

370, 372 (Tex.Crim.App. 1980); Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex.Crim.App. 

2012)(same). A defendant’s decision to plead guilty, when based on the erroneous advice of 

counsel, was not voluntary and knowing. Moussazadeh, 361 S.W.3d at 689.

The record reflects that Appellee was a lawful permanent resident and that removal 

proceedings were commenced against Appellee as a result of her guilty plea. As noted above, the 

immigration consequences of her plea were such that Appellee would be subject to removal 

proceedings. See 8 U.S.C. § 1101(a)(48)(A); 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 

1229b(a)(2008); 8 U.S.C. § 1182(a)(2)(A)(i)(I)(2010). Appellee, in an affidavit, indicated that 

she would have sought a different disposition of her case, including either seeking a trial or an 

immigration-neutral plea agreement, if she had been advised of the certainty of immigration 
10

consequences in her case.

The trial court found prejudice against Appellee based on her receiving incorrect legal 

advice, despite labeling it as a collateral issue, and this affected whether Appellee entered into the 

plea freely and voluntarily. In addition, Appellee has alleged the appropriate type of prejudice 

such that she would not have pled guilty if she had she received the correct legal advice. We find 

that the trial court did not err in making this finding.

5

 See Ex parte Burns, 601 S.W.2d at 372; 

Moussazadeh, 361 S.W.3d at 689.

Accordingly, we conclude that Appellee met her burden to show a reasonable probability 

that, but for the erroneous advice, she would not have pleaded guilty and would have gone to trial, 

see Ex parte Olvera, 2012 WL 2336240, at *4, citing Ex parte Moody, 991 S.W.2d 856, 857-58 

(Tex.Crim.App. 1999), thereby satisfying the second prong of Strickland.

We hold that the trial court did not abuse its discretion in granting Appellee’s application 

for a writ of habeas corpus based on the habeas court’s determination of ineffective assistance of 

counsel as set out in Strickland. Having determined that the habeas court did not err in its 

 

5 We note that many of cases cited by the State are distinguishable from the facts in the instant case. See Ex parte 

Rodriguez, 350 S.W.3d 209, 211 (Tex.App.--San Antonio 2011, no pet.)(noting that deportation consequence was 

clear when the original charge was an aggravated felony, but final charge was a misdemeanor and that as a result, 

nothing in the record indicated that removal was certain in that case); Ex parte Diaz, 10-10-00344-CR, 2011 WL 

455273, *1 (Tex.App.--Waco Feb. 9, 2011, no pet.)(mem. op., not designated for publication)(denying habeas relief 

where trial counsel testified that he advised defendant that “I explained to him that there was a significant chance that 

he could be deported as a result of his felony conviction.”); Ex parte Martinez, 13-10-00390-CR, 2011 WL 2976863 

(Tex.App.--Corpus Christi July 21, 2011)(mem. op., no designated for publication), vacated and remanded, 2012 WL 

1868492 (Tex.Crim.App. May 16, 2012)(remanding for additional consideration as to whether defendant was advised 

about automatic deportation for offense); Ex parte Elhaj, 02-11-00054-CR, 2011 WL 4008118 (Tex.App.--Fort Worth 

Sept. 8, 2011, pet. ref’d)(mem. op.)(noting difference in advising defendants of immigration consequences in 

misdemeanor versus felony cases); State v. Golding, 01-10-00685-CR, 2011 WL 2732579 (Tex.App.--Houston [1st 

Dist.] July 14, 2011, pet. ref’d)(mem. op. on reh’g)(holding on rehearing that approval of defendant's naturalization 

petition eliminated the basis for his request for habeas relief and rendered it moot, vacating judgment, and dismissing 

habeas application).
11

Strickland analysis, we overrule the State’s sole point of error.6

CONCLUSION

As the habeas court did not err in its Strickland analysis, we overrule the State’s objection 

and the habeas court’s grant of Appellee’s writ is affirmed.

August 1, 2012

CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)

 

6

Because we find no error under Strickland, we do not address the arguments concerning the retroactivity of Padilla

raised by the parties.