Reversed and Remanded and Memorandum Opinion filed July 26, 2018. In The Fourteenth Court of Appeals NO. 14-17-00689-CR EX PARTE LUIS DANIEL RABAJO1 On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 0570001-B MEMORANDUM OPINION Luis Daniel Rabajo filed an application for writ of habeas corpus seeking to set a aside a guilty plea and deferred adjudication for third-degree felony possession of a controlled substance, methamphetamine. See Tex. Code Crim. Pro. art. 11.072. Following a hearing on Rabajo’s application, the trial court granted the writ. From that order the State timely brought this appeal. See Tex. Code Crim. Proc. art. 44.01. 1 The application spells applicant’s name “Rabago” and that spelling was used by the trial court in this matter. However, the proceedings giving rise to this writ use the spelling “Rabajo,” as does applicant’s brief. Accordingly, that is the spelling used herein. BACKGROUND Rabajo pled guilty to possession of methamphetamine on November 7, 1991. The trial court deferred adjudication and placed Rabajo under community supervision for eight years. On July 12, 1994, the trial court dismissed the cause and and terminated Rabajo’s community supervision. On September 12, 2016, Rabajo filed an application for writ of habeas corpus claiming his plea of guilty was involuntary and he received ineffective assistance of counsel. The only evidence adduced at the hearing was the testimony of Rabajo’s immigration attorney, Francisco Fernandez. Fernandez testified that Rabajo consulted him about his immigration case approximately three and one-half years earlier.2 Fernandez stated that Rabajo was ordered removed for his deferred adjudication for a controlled substance. According to Fernandez, Rabajo’s immigration status before his deferred adjudication was “as a visitor. . . a visiting visa.” At the time Rabajo pled guilty, he had a valid visa, as a visitor, that was effective until 1998. Fernandez testified that if a person had a visa and pled guilty to possession of a controlled substance he would not be able to acquire legal status. According to Fernandez, that was the law at the time of Rabajo’s plea and remained the law at the time of the hearing. Rabajo and his trial counsel submitted affidavits into evidence. Rabajo claimed his trial attorney misadvised him that a guilty plea would not affect his ability to legally remain present in the United States. Rabajo alleged, and trial counsel averred in his affidavit, that, prior to pleading guilty, Rabajo asked trial 2 Since the hearing took place in June 2017, the consultation would have occurred on or about January 2014. 2 counsel if a guilty plea would affect his immigration status and trial counsel directly told Rabajo it would not. The trial court found Rabajo would not have pled guilty had he not been misadvised by trial counsel that his immigration status would not be affected. The trial court concluded trial counsel rendered ineffective assistance. Further, the trial court declined to apply the doctrine of laches, which was raised by the State at the hearing. The State raises two ...
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