Texas Courts of Appeals
Ex parte Tanklevskaya – 1st COA
05/26/11 : Cite No. 01-10-00627-CR
Did trial counsel render ineffective assistance under Padilla when he failed to specifically inform a lawful permanent resident that a guilty plea to a Class B misdemeanor would render her presumptively inadmissible upon leaving and attempting to re-enter the United States?
Yes. Padilla applies retroactively, and counsel’s performance was deficient because he did not specifically inform the defendant that, under the immigration statutes, inadmissibility and subsequent removal was “presumptively mandatory” and “virtually certain” upon her return to the United States. Moreover, a trial court’s statutory admonishment cannot cure any prejudice arising from counsel’s incomplete advice. Read Opinion.
The Court of Criminal Appeals (and ultimately the United States Supreme Court) is going to have to clear this issue up. More and more defendants are challenging their old cases and getting relief granted based upon allegedly insufficient information concerning deportation and/or re-entry consequences of pleas of guilty in those old cases. The majority in Padilla suggested that a large number of convictions would not be invalidated as a result of its decision, but that does not appear to be the case. I also question how “mandatory” and “certain” these consequences really are, but—so far—some judges are buying defense arguments hook, line, and sinker. It is up to the higher courts to set these judges straight.
Rodriguez v. State – 12th COA
05/25/11 : Cite Nos. 12-10-00118-CR through 12-10-00121-CR
Did evidence require suppression under Code of Criminal Procedure art. 38.23 because individuals cooperating with the police trespassed by entering a gambling place from which the owners had banned them to gather the evidence that served as the basis for the search warrant?
Yes, the State’s reliance on the “four corners rule” was mistaken because the attack was not on the probable cause to support the warrant and the State did not challenge the trial court’s ruling that the individuals trespassed. Also, at trial, the State did not develop the “good faith” exception or the public interest language of Penal Code §9.21, and the trial court did not rule on these arguments so the appellate court does not reach them. Read Opinion.
This case illustrates why it is so difficult to win a State’s appeal if all of the possible arguments that the State could advance are not advanced at trial. The officer’s actions in this case could almost certainly be justified, but the justifications could not be addressed on appeal because they were not raised at trial. Very unfortunate.