THE STATE OF TEXAS v. REYNALDO JOSUE CABEZA TORRES (2026)

CONCURRING OPINION

I fully join the majority. I also share the dissent's frustration from the incorrect advice given by plea counsel. But even when plea counsel's performance is objectively bad (and it was in this instance), an applicant must still produce credible evidence of prejudice. See Ex parte Torres, 483 S.W.3d 35, 46-47 (Tex. Crim. App. 2016) (“As we have previously held, a criminal defense attorney's errors, unless they rise to the level of a complete denial of counsel, are subject to the usual Strickland prejudice analysis.”). The prejudice standard that governs here is the familiar Strickland standard as it applies in the context of a guilty plea, under Hill, that asks whether, but for trial counsel's errors in a plea proceeding, there exists a reasonable probability that the defendant would have rejected the plea bargain and instead pursued a trial. See Ex parte Torres (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

It is undisputed that appellee is from Venezuela and lacks any legal immigration status. The record shows an alleged offense date of October 15, 2021, and that appellee pled guilty on July 20, 2022. Appellee relies on Ex parte Aguilar, 537 S.W.3d 122 (Tex. Crim. App. 2017), in his briefing to this court and in his writ application to the trial court. Central to Aguilar was how that defendant had applied for and obtained temporary protected status and would lose that status due to his guilty plea. Id. at 125–27. This record shows appellee, unlike the defendant in Aguilar, did nothing at any time before or after this case was pending to seek temporary protected status to ward off deportation. Evidence of this type of contemporaneous conduct would have clearly demonstrated appellee's concern for his immigration status before entering his guilty plea, and would have made our decision an easy one. In my view, this record simply lacks contemporaneous actions by appellee showing his primary concern was his immigration status. Instead, appellee's evidence is predominately post hoc.

The majority correctly states that post hoc evidence in these situations should be viewed with caution. To me, caution is even more warranted when strong evidence of guilt suggests that a rational noncitizen defendant would likely not risk a trial if the result is near certain conviction. Cf. Ex parte Fassi, 388 S.W.3d 881, 886-87 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Neither party suggests that the evidence of guilt in this case was anything but strong. In that context, Appellee's statements made long after his guilty plea do not measure up to his inactions prior to entering that plea. Therefore, I believe the trial court's reliance on post hoc statements instead of the contemporaneous inactions before the guilty plea was outside the zone of reasonable disagreement.

In addition, the majority cites Ex parte Buenrostro, No. 05-25-00152-CR, 2025 WL 3078635 (Tex. App.—Dallas Oct. 31, 2025, pet. filed). Buenrostro has an unresolved legal question that could be dispositive here. Buenrostro mentions the possibility that when a defendant has no legal status, Padilla does not apply. Instead of deciding that issue, the Buenrostro court resolved their case on the prejudice prong. Id. at 4–5. A petition for discretionary review is currently pending for Buenrostro. With these comments, I join the majority.

Chad Bridges Justice