Ex Parte Nguyen Nhat Nguyen ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-207-CR
EX PARTE
NGUYEN NHAT NGUYEN
------------
FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Appellant Nguyen Nhat Nguyen appeals the denial of habeas corpus relief.
Because the trial court did not err by denying habeas relief, we affirm the trial
court’s order.
Appellant, who was born in Vietnam and is a permanent resident alien,
pled guilty to sexual assault pursuant to a plea bargain agreement. The trial
court placed him on deferred adjudication community supervision for four years.
1
… See Tex. R. App. P. 47.4.
The community supervision expired in 1998. Appellant later filed an application
for writ of habeas corpus, arguing that his plea of guilty and the subsequent
deferred community supervision order should be vacated and set aside because
his plea was not entered voluntarily, freely, and knowingly. He also argued that
he was denied effective assistance of counsel at trial because counsel failed to
investigate the facts of the case and then raise appropriate mitigating and
exculpatory evidence and circumstances to show that Appellant was innocent
of the charges pending against him, falsely advised him that there would be no
immigration consequences associated with his plea or his community
supervision based on his foreign citizenship, and did not advise him of the sex
offender registration requirement or insist on a translator for the guilty plea and
community supervision proceedings.
Appellant also argued that he was denied due process of law because the
trial court did not advise him of the sex offender registration requirement or
provide a translator for the guilty plea and community supervision proceedings.
He also argued that his plea was involuntary because the Vienna Consular
Convention was violated.
The trial court adopted the State’s proposed findings of fact and
conclusions of law, and they are included in the record. The trial court found
that, before accepting Appellant’s plea, the trial court admonished him that if
2
he was not a citizen of the United States, a plea of guilty or nolo contendere for
the offense charged might result in his deportation, exclusion from admission
to this country, or denial of naturalization under federal law. The trial court also
found that Appellant had signed that he had reviewed the admonishments with
his attorney and that he understood them. The court also found that at the
time Appellant entered his guilty plea in 1993, deferred adjudication was not
a final conviction for deportation purposes 2 and that Appellant was not
admonished regarding the potential sexual offender registration consequences
of his guilty plea because at the time he entered his plea, there was no sexual
offender registration requirement for deferred adjudication. The requirement
that the trial court admonish a defendant regarding sexual offender registration
consequences did not become effective until September 1, 1999.3
The trial court also found that trial counsel had found Appellant to be
competent in the English language and that the record does not demonstrate
that Appellant did not understand English. Appellant immigrated to the United
States as a child, and by the time he entered his plea of guilty, he had lived and
worked in this country for some time.
2
… See Moosa v. INS, 171 F.3d 994, 1001 (5th Cir. 1999) (noting that
the federal deportation law changed effective April 1, 1997).
3
… See Mitschke v. State, 129 S.W.3d 130, 133 (Tex. Crim. App. 2004).
3
The trial court also found that trial counsel did not improperly fail to
advise Appellant of the immigration and sex offender registration consequences
of his deferred adjudication because, at the time Appellant entered his guilty
plea, deferred adjudication was not a final conviction for deportation purposes,4
and there was no sex offender registration requirement for deferred
adjudication.5 The trial court found that trial counsel’s representation of
Appellant did not constitute deficient performance under the guarantees of the
Sixth Amendment.6 The trial court found that Appellant knowingly and
voluntarily entered his guilty plea to the sexual assault offense and that
Appellant presented no evidence to explain how any violation of the Vienna
Consular Convention violated his individual due process rights.7
The trial court also made conclusions of law. He concluded that the
application for writ of habeas corpus Appellant filed was proper,8 that Appellant
had no United States or Texas due process right to be informed of collateral
4
… See Moosa, 171 F.3d at 1001.
5
… See Mitschke, 129 S.W.3d at 133.
6
… See Strickland v. Washington, 466 U.S. 668, 687–90, 694, 104 S.
Ct. 2052, 2064–66, 2068 (1984); Thompson v. State, 9 S.W.3d 808, 812–14
(Tex. Crim. App. 1999).
7
… See Sierra v. State, 218 S.W.3d 85, 86–87 (Tex. Crim. App. 2007).
8
… See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005).
4
consequences of a criminal proceeding, including the possibility of deportation,9
and that Appellant received the proper admonishments and was fully
admonished regarding deportation consequences of his guilty plea.10 He also
concluded that Appellant had failed to prove an ineffective assistance claim, 11
that the trial court could not be deemed to have violated Appellant’s due
process rights by not anticipating a change in the law six years in advance,12
and that Appellant is not entitled to relief based on any failure to understand the
consequences of his plea and, in particular, the possibility of deportation or sex
offender registration.
The trial court also concluded as a matter of law that the fact that a
defendant may be more fluent in another language does not require the
appointment of a translator and that a defendant who does not request a
translator waives the right to complain on appeal unless the record otherwise
9
… See United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993); Ex parte
Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App. 1995); see also State v.
Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999).
10
… See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2008).
11
… See Strickland, 466 U.S. at 687–90, 694, 104 S. Ct. at 2064–66,
2068; Thompson, 9 S.W.3d at 812–14.
12
… See Mitschke, 129 S.W.3d at 136 n.5.
5
demonstrates his lack of understanding of the proceedings. 13 The trial court
found that the record does not demonstrate that Appellant did not understand
English and concluded as a matter of law that the trial court’s failure to sua
sponte appoint a translator did not render Appellant’s guilty plea involuntary and
that Appellant knowingly and voluntarily entered his guilty plea.
In addressing the question of the Vienna Convention on Consular
Relations, the trial court concluded as a matter of law that the Vienna Consular
Convention does not provide individual due process rights; rather the Vienna
Consular Convention is an international treaty that governs relations between
individual nations and foreign consular officials. 14 The trial court held that any
violation of the Vienna Consular Convention by law enforcement or the trial
court did not violate Appellant’s individual due process rights.
The Texas Court of Criminal Appeals has explained,
A guilty plea constitutes a waiver of three constitutional rights: the
right to a jury trial, the right to confront one’s accusers, and the
right not to incriminate oneself. Accordingly, a guilty plea, to be
consistent with due process of law, must be entered knowingly,
intelligently, and voluntarily. To be “voluntary,” a guilty plea must
be the expression of the defendant’s own free will and must not be
13
… See Hernandez v. State, 986 S.W.2d 817, 822 (Tex. App.—Austin
1999, pet. ref’d).
14
… See Sierra, 218 S.W.3d at 86–87; Rocha v. State, 16 S.W.3d 1,
18–19 (Tex. Crim. App. 2000).
6
induced by threats, misrepresentations, or improper promises. A
defendant’s sworn representation that his guilty plea is voluntary
“constitute[s] a formidable barrier in any subsequent collateral
proceedings.”
An applicant seeking habeas corpus relief on the basis of an
involuntary guilty plea must prove his claim by a preponderance of
the evidence. An applicant’s delay in seeking habeas corpus relief
may prejudice the credibility of his claim. An appellate court
reviewing a trial court’s ruling on a habeas claim must review the
record evidence in the light most favorable to the trial court’s ruling
and must uphold that ruling absent an abuse of discretion.15
Based on our review of the record of the original hearing, we find nothing
in the record contrary to the trial court’s recitation of the facts. Further, based
on our review of the law and the record, we cannot say that the trial court
abused its discretion by denying Appellant habeas corpus relief. We therefore
affirm the trial court’s denial of relief.
PER CURIAM
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 25, 2008
15
… Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)
(citations omitted), cert. denied, 127 S. Ct. 667 (2006).
7