Sherman Criminal Lawyer Blog

The first jury trial I won on aggravated assault was trickier because allegation was threatening injury and displaying a deadly weapon. My client was alleged to have chased his ex-girlfriend/child's mother's vehicle up and down the highway with his vehicle, and threatened to ram her (he did bump her a little). Fortunately, the jury found him guilty of the lesser included offense of deadly conduct. This can be a reasonable out in many aggravated assault cases, which in reality are deadly conduct cases.

If you are trying an aggravated assault case, always ask for deadly conduct as a lesser included, particularly if the language of the aggravated assault allegation allows deadly conduct to fit more neatly as a lesser included. The court found it to be one in my first jury trial where it was alleged to be an intentional threat with a deadly weapon. Sec. 22.05 of the Penal Code defines deadly conduct as "(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury..." Deadly conduct has been held to be a lesser included offense to aggravated assault on multiple occasions. Bell v. State, 693 S.W.2d 434, 437 (Tex.Crim.App.1985). Guzman v. State, 188 S.W.3d 185, 190-91 (Tex.Crim.App.2006). The end result was my client walked away with a misdemeanor conviction and a fine only, when he was facing two to twenty years in the penitentiary on the indictment.

If all this sounds complicated, it is because it can be. The laws and facts of every assault case, including the interpersonal dynamics between the witnesses, are normally convoluted. This is why you should be very careful to hire an experienced criminal trial lawyer for any aggravated case. Really, for any criminal case.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

*3 In crafting a definition, however, it is important to remember the function of the definitions and instructions in a charge. The function of the abstract paragraphs is to provide a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge. See Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App.1996). The application paragraph in the instant case read:

If you believe from the evidence beyond a reasonable doubt that [appellant] ... did then and there intentionally or knowingly threaten to harm [the victim] by an unlawful act, to wit: by sending ... threatening text messages in retaliation for and account of the service or status of [the victim] who had reported the occurrence of a crime, to wit: Assault ...

The trial court's definition gave the statutory definition of the word unlawful. The added language from the harassment statute, which is a specific offense to that charged, was not necessary to further define an unlawful act, and was improperly included in the charge. Therefore, we conclude the court's definition was erroneous.FN4
FN4. Our conclusion is limited to the facts of this case and the narrow issue remanded for our consideration.

Having concluded that the definition was erroneous, we now consider whether appellant suffered harm, and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. Appellant objected to the complained-of definition as follows:

"... actually, my objection is under Texas law. That law refers to a completely different crime under the statute of harassment as a crime I did not voir dire on. It's a crime that I presented no evidence on. I did not prepare to defend against that particular crime and I am not prepared to address it, of course, at this late date. And again, 1 believe it introduces into the charge an additional burden on me as the attorney that wasn't available when this trial started."

We deem this objection sufficient to preserve appellant's complaint that the definition is an incorrect statement of the law. Therefore, we consider whether appellant suffered some harm.

Generally, reversible error occurs in the giving of an abstract instruction only when the instruction is an incorrect or misleading statement of the law that the jury must understand in order to implement the commands of the application paragraph. Plata, 926 S.W.2d at 302. But this is precisely what occurred here. The record reflects that appellant assaulted the victim, Megan Lawson, and she told him she was contacting the police. After appellant left the scene, Lawson began receiving threatening text messages from appellant's telephone number. Lawson continued to receive such messages after she went to the police station. Whether appellant sent the messages and whether the messages were actually conveying a threat was the crux of the State's case and the appellant's defense. The unlawful act was the essence of the case. Having the language from the harassment statute in the jury charge was confusing and could lead the jury to believe appellant was guilty of retaliation if it believed appellant harassed the complainant. Therefore, under these circumstances, we cannot conclude that the complained-of definition did not cause appellant to suffer some-harm. Appellant's issue is sustained.

*4 We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

What is a deadly weapon? Well, thankfully the code defines that for us as well. Penal Code 1.07(17) says that "'Deadly weapon' means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." In most cases, the latter is the alleged deadly weapon theory.

So, there are several ways of committing aggravated assault. The first is straightforwardly causing serious bodily injury without a deadly weapon. Punching someone in the nose and breaking their nose could be aggravated assault. The state would not have to prove that the fist was a deadly weapon because they just have to prove serious bodily injury occurred. Pushing someone down a set of stairs could also be aggravated assault this way if it caused serious bodily injury, but the same could also be aggravated assault in another way. How? The stairs could be alleged to have been "used" as a deadly weapon when used this way. In that case, even if you only caused them pain, the stairs could be alleged as a deadly weapon, aggravating the assault.

In my most recent jury trial, the allegation was using a vehicle as a deadly weapon and causing pain, alleged in the same manner as if someone had punched another and then displayed a knife in the course of the assault. We beat it primarily on credibility issues and the lack of any real injury. If the jury had convicted, however, legal sufficiency of the conviction would have been tough to overcome because a vehicle has been routinely upheld as a deadly weapon in many cases, and pain is all of the injury that was required.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

To understand aggravated assault, one must understand misdemeanor assault. Section 22.01 of the Penal Code defines assault as "(a) A person commits an offense if the person: 1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; [or] (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse..." Texas Penal Code section 1.07(8) says that "'Bodily injury' means physical pain, illness, or any impairment of physical condition." So, to have an assault you must either cause or threaten bodily injury, which in most cases is physical pain (though illness and other physical impairment are sometimes seen.)

Section 22.02 of the Penal Code defines aggravated assault as "(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault." Section 1.07(46) of the Penal Code says that "'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Thus, there are two aggravators to make an assault an aggravated one: 1) causing serious bodily injury, i.e. risk of death or actual disfigurement/loss of use of organ, or 2) displaying a deadly weapon in the course of committing an assault.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

In his second issue, appellant argues he was harmed by the additional definition of unlawful because it "violated his right to a unanimous jury," "lowered the state's burden of proving each and every element of the offense beyond a reasonable doubt," and was "confusing, misleading, and ... an incorrect statement of Texas law." The court of criminal appeals has framed the issue as whether the definition was an incorrect statement of the law. Our inquiry is limited accordingly.FN2

FN2. Moreover, appellant provides no argument or authority to support his contention that the instruction violated his right to a unanimous jury. Therefore, it has been waived as inadequately briefed. TEX.R.APP. P. 38.1.

*2 Appellant was charged with retaliation. See TEX. PENAL CODE ANN. § 36.06(a) (West 2011). The statute provides, in pertinent part, that a person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a person who has reported or who the actor knows intends to report the occurrence of a crime. See id.; see also Moore v. State, 143 S.W.3d 305, 319 (Tex.App.-Waco 2004, pet. ref'd).

After providing the statutory definition of the charged offense, the court endeavored to define the "unlawful act" element set forth in the statute. FN3 In so doing, the court provided the definition at issue which states:

FN3. The trial judge noted that because the State and the defense made statements to the jury regarding the legality of sending threatening text messages, he believed it necessary to instruct the jury that such an act was unlawful.

Unlawful means criminal or tortuous [sic] or both and includes what would be criminal or tortuous [sic] but for a defense not amounting to justification or privilege. Under Texas law, it is an unlawful act to threaten someone by electronic communication in a manner likely to alarm the person who received the threat to inflict bodily injury on that person.
Appellant does not complain about the first part of the definition, which was derived from the definitions section of the penal code. See TEX. PENAL CODE ANN. § 1.07(48) (West 2011). Rather, it is the second part of the definition, derived from, the harassment statute, to which appellant assigns error. See TEX. PENAL CODE ANN. § 42.07 (West 2011).

In criminal jury trials, the trial court must deliver "a written charge distinctly setting forth the law applicable to the case." TEX.CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Because the charge instructs the jury on the law applicable to the case, it must contain an accurate statement of the law and set out all essential elements of the offense, Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App.1995). In reviewing the jury charge for any alleged error, an appellate court must examine the charge as a whole and not as a series of isolated and unrelated statements. Id.

The retaliation statute does not define an "unlawful act." See TEX. PENAL CODE ANN. § 36.06(a) (West 2011). As a general rule, terms that are not legislatively defined are to be understood as ordinary usage allows, and jurors may give them any meaning which is acceptable in common parlance. Medford v. State, 13 S.W.3d 769, 771-72 (Tex.Crim.App.2000). On the other hand, "terms which have a known and established legal meaning or which have acquired a peculiar and appropriate meaning in the law ... are considered as having been used in their technical sense." Kirsch v. State, 357 S.W.3d 645, 650 (Tex.Crim.App.2012). Terms which have a technical or legal meaning may require an explicit definition, Middleton v. State, 125 S.W.3d 450, 454 (Tex.Crim.App.2003). In addition, a trial court not only has broad discretion in submitting proper definitions and explanatory phrases to the jury, it must define those legal phrases that a jury must use to resolve an issue. See Macias v. State, 959 S.W.2d 332, 336 (Tex.App.-Houston 14th Dist.1997, pet, ref'd); see also Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex.App.-Houston 14th Dist.2001, pet. ref'd) (stating court must define legal phrases jury must use in resolving issues and provide statutory definition if available). Here, the term "unlawful" had particular legal significance, and as the trial court recognized, required definition to facilitate the jury's resolution of the ultimate issue in the case.

One of the most prosecuted and least appreciated criminal statutes is aggravated assault with a deadly weapon. Criminal trial lawyers are separated from other lawyers by their ability to win aggravated cases at jury trial. We go into the case knowing our client is likely to do time if the jury believes they committed the offense, particularly if the client has any criminal history. When people think of aggravated assault, or when I do, I think of someone shooting another person in the leg or beating them with a baseball bat, or maybe pointing a gun at someone and threatening their life (without justification, of course.) Aggravated assault normally carries two to twenty years in the penitentiary, the first two of which and, if a four or more year sentence, half of which must be served day for day before parole eligibility, so it is important to know how easily it can be alleged.

I recently won a jury trial where my client was accused of aggravated assault against a police officer. He was accused of intentionally, knowingly or recklessly driving his car at the officer and hitting the officer's hand with his side view mirror, causing the officer "pain." My first ever felony jury trial victory was an aggravated assault with a deadly weapon charge in which a vehicle was alleged to be the deadly weapon. In that case, he allegedly "exhibited" it while intentionally or knowingly threatening his ex-girlfriend by running her off the road. Both were thin cases on their face with no serious injury, but a reading of the law reveals that indicting a person for aggravated assault just requires an assault allegation and a theoretical deadly weapon.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Court of Appeals of Texas,
Dallas.
Roderick PARKER, Appellant
v.
The STATE of Texas, Appellee.
No. 05-10-00878-CR.

March 15, 2013.
On Appeal from the 397th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 059391.
Micah Belden, Sherman, TX, for Roderick Parker.

Karla Baugh Hackett, Grayson County Crim. Dist. Atty.'s Office, Sherman, TX, for The State of Texas.
Before Justices BRIDGES, RICHTERFN1, and MURPHY.

FN1. The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
OPINION ON REMANDhttp://www.shermancriminallawyer.com/cgi-bin/mt.cgi?__mode=view&_type=entry&blog_id=462

Opinion by Justice RICHTER.

*1 A jury convicted appellant of retaliation and the court sentenced him to eight years' imprisonment and a $500 fine. In his original brief on appeal, appellant raised four issues asserting the trial court erred in instructing the jury. On original submission, we overruled all of appellant's issues and affirmed the trial court's judgment. We observed that although appellant's second issue asserted he suffered harm because the definition does not correctly state the law, he characterized this assertion as material to the harm analysis rather than as the charge error that caused the harm.

On appellant's petition for discretionary review, the Texas Court of Criminal Appeals concluded we should have considered "appellant's claim that the definition of the term unlawful was jury charge error in general." Parker v. State, No. PD-098-12, 2012 WL 1438901 at *1 (Tex.Crim.App.2012) (per curiam) (not designated for publication). The Court vacated our judgment and remanded the case to this court "to consider appellant's second issue on appeal." Id. Following remand, we gave the parties the opportunity to file supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex.Crim.App.1990). Neither party availed itself of the opportunity to provide further briefing. Having considered appellant's second issue as framed by the court of criminal appeals, for the reasons that follow, we reverse the trial court's judgment and remand for a new trial.

We review allegations of jury charge error under the standard enunciated in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). An erroneous or incomplete jury charge does not result in automatic reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). If error occurred, reversal is required if the error is "calculated to injure the rights of the defendant," which means that the accused has suffered some harm from the error. Almanza, 686 S.W.2d at 171. Thus, an error that has been properly preserved will require reversal only if the error is not harmless. Id. The harm suffered must be more than merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex.Crim.App.2012). We evaluate the issue of harm "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171.

Court of Criminal Appeals of Texas.
Roderick PARKER, Appellant
v.
The STATE of Texas.
No. PD-098-12.
April 25, 2012.
On the Appellant's Petition for Discretionary Review from the Fifth Court of Appeals, Grayson County.

PER CURIAM.
*1 Appellant was convicted of retaliation and sentenced to eight years' imprisonment. On appeal, Appellant claimed that the trial court gave an erroneous definition of "unlawful" in the jury charge. Appellant's first issue on appeal argued that this definition of unlawful constituted an improper comment on the weight of the evidence. His second issue argued that the instruction was erroneous, even if it was not a comment on the weight of the evidence, and that he was harmed by the erroneous instruction. The court of appeals affirmed, holding that the trial court's definition of unlawful was not an improper comment on the weight of the evidence. Parker v. State, No. 05-10-00878-CR (Tex.App.-Dallas, December 15, 2011). The court of appeals read Appellant's second claim as relating only to harm arising from a comment on the weight of the evidence. Having found that the instruction was not a comment on the weight of the evidence, the court did not address that claim. Appellant petitioned this Court for discretionary review.

Appellant contends that the court of appeals did not address his second point of appeal as required by Davis v. State, 817 S.W.2d 345 (Tex.Crim.App.1991). Appellant's brief on appeal argued that the jury charge erroneously defined unlawful, even if that definition was not a comment on the weight of the evidence. Appellant specifically asserted that the definition of unlawful was an incorrect statement of Texas law and he argued that he had shown some harm as required by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). In concluding that this point of error concerned only harm from an alleged comment on the weight of the evidence, the court of appeals failed to consider Appellant's claim that the definition of the term unlawful was jury charge error in general.

Therefore, we vacate the judgment of the Court of Appeals and remand for that court to consider Appellant's second issue on appeal.

The issue of intoxication and consent came up recently in the Fort Worth Court of Appeals in Anderson v. State, 2012 WL 1222148. In Anderson, two men met two ladies at a bar during a night of drinking. One young lady ended up somehow at the residence of one of the men, along with her friend who appeared to have gone consensually. Anderson claimed they had consensual intercourse, but his accuser said she woke up during unconsensual intercourse and tried to fight him off. The end result was that, "as authorized by the indictment, the jury convicted Anderson of intentionally or knowingly causing the penetration of Miller's female sexual organ ... while knowing that he did so without her consent and that she was either unconscious or physically unable to resist or that she did not consent and was unaware that the sexual assault was occurring. (citations omitted)" The court of appeals noted the established law that "[w]hen assent in fact has not been given, and the actor knows that the victim's physical impairment is such that resistance is not reasonably to be expected, sexual intercourse is 'without consent' under the sexual assault statute. Elliott v. State, 858 S.W.2d 478, 485 (Tex.Crim.App.), cert. denied, 510 U.S. 997, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993)."

We don't know what happened in the hotel room in San Antonio between these two football players and the alleged victim. What we do know is that just because a person is too intoxicated to resist a sexual encounter, that is not consent to sexual activity. Not only is unconsciousness not consent, being intoxicated to the point of being unaware that the sexual assault is occurring is not consent.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

On a night before the Oregon State Beavers played the University of Texas in the Alamo Bowl, two longhorn players went out drinking. At a bar, they met a young woman who eventually invited them back to her hotel room. That was either a sign that the young lady was interested in a night of romance, or a very bad judgment call by a likely impaired young woman who did not realize what she was doing. Early the next morning, she reported to the San Antonio police that she had been sexually assaulted, and did have bruising on her body. Some say the scenario appears to be an obvious "set up" job on athletes, perhaps another Duke University lacrosse-team episode, while others are outraged that an invitation to one's hotel room could so easily be taken as a sign of consent.

What the case probably comes down to, however, is Texas "consent" law. That is, we all know that an adult has to consent to sexual activity for that activity to be valid. In a night filled with intoxication, young hormones, college athletics and things that come with it, things may appear complicated. While it is always ideal to get a verbal, express consent to sexual activity, the case law has defined what is NOT consent to sexual activity, and it is not limited to the word "no."

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

The Texas Rules of Evidence are modeled after the Federal Rules, and Rule 404 is the main rule governing character evidence. 404(a) outlaws evidence of character simply to prove "conformity therewith on a particular occasion," I.e. you can't use character evidence to say simply "he did it before, so he must have done it now." You can't generally use a person's history of theft to prove that he committed a theft on a particular occasion, or evidence that he lied before to prove that he lied on a particular occasion. However, under 404(a) a defendant is allowed to offer evidence of his "pertinent character trait." I.e., Zimmerman could offer into evidence that he is a peaceful person. At that time, he has opened the door to character evidence that he is aggressive or violent and has so acted on prior occasions. 404(a)(2) also specifically allows evidence of the character of the victim in a self-defense case.

Florida's rule of evidence 90.404(b) similarly allows "(1) evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or (2) Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor." It is the simple fact of most assault cases, including sexual assault cases, that character evidence is extremely important. Most assault cases are of the "he-said/she-said" variety, in which evidence of aggression/violence regarding one party is gold for the other. The "Rape shield," Federal and Texas Rule 412, which most states have adopted, has severely limited sexual character evidence in rape cases, but in homicide or run-of-the-mill assault cases, the door is still wide open for evidence bordering "trial by ambush." The back-and-forth character nature of the Trayvon Martin case goes on in courthouses all over America on a weekly or monthly basis.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Character evidence is very important in a criminal case. We want the jury to like our client, and to dislike the person accusing us of an alleged crime or the witness to an alleged crime. However, the rules of evidence generally frown on "trial by ambush," so there are limits to what one can present. In Trayvon Martin's case, the Zimmerman team wants the deceased's Facebook, Twitter and school records to show that Martin was the likely aggressor. If so, it becomes more reasonable for Zimmerman to use force, including deadly force, in self-defense.

On Facebook, aggressive or threatening posts, evidence of gang membership, or any relevant evidence supporting the defense's first-aggressor theory, could potentially be admissible into evidence. The school records are probably much more likely to contain admissible evidence of aggression such as prior fights and aggressive bad acts. However, to be admissible they have to be relevant.

From Zimmerman's medical records, the prosecutors are primarily looking to rebut the extent of his injuries according to the news reports. However, prosecutors may also fish through other medical records they can get their hands on to help paint Zimmerman as aggressive or hostile or loose-cannon, rebutting his evidence that Martin was the first-aggressor.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

Trayvon Martin's parents are wildly screaming that the privacy rights of their 17 year old "kid" are being invaded by George Zimmerman's lawyers acquiring Trayvon's Facebook, Twitter and school records. First of all, what you post on Facebook or Twitter in public has little privacy value. So, be careful what you say on public message boards. Next, school records are private records, but are a gold mine source for criminal defense lawyers and prosecutors researching criminal defendants and criminal witnesses. Defense lawyers in Texas can easily subpoena school records and turn them over to the Court. So can prosecutors, who usually look through a defendant's school records for evidence of "bad acts" to use against them in punishment hearings.

The only records which normally have an added level of privacy protection in Texas law are CPS (Department of Family and Protective Services Records) records detailing child abuse or neglect investigations, and health records which generally require a HIPPA-compliant subpoena (although our Court of Criminal Appeals has held a general subpoena not to be fatal), and court documents which placed under "seal" by a court (i.e. excluded from public portion of a file) such as family social studies in divorce cases.

As most divorced persons can tell you, once you get into court, what you thought is your "right of privacy" is very limited. In criminal law, this is because both sides have the power of subpoena, i.e., the power to get an order of the court requiring a person with testimony or evidence to come to court to produce such testimony or evidence. If you have a car accident and are taken to the hospital, the courts can force your hospital records to be brought to court for use in favor of or against you if they are admissible under the rules of evidence. So why are Trayvon's Facebook, Twitter, and school records so important in this case? Why are George's medical records so important to the prosecution? Read Part two for the answer.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

*4 Under the second prong of Strickland, Olvera must show by a preponderance of the evidence that, but for counsel's errors, he would not have pleaded guilty and would have insisted on a jury trial. At the habeas hearing, Olvera testified that he and his sister asked counsel several times about the immigration consequences of a guilty plea. Olvera testified that if he had known he would be deported or denied reentry into this country by pleading guilty he "would have never pled guilty, ever" and would have gone to trial.

The record shows that Olvera was a legal permanent resident. At Olvera's request, his supervision officer gave him written permission to travel to Mexico with family for the Christmas holidays. Although the record does not show that Olvera was deported,FN1 he was denied reentry because of his guilty plea when he tried to return to the United States after the holidays. In his writ application, Olvera argued that because he is a legal permanent resident, he would not have pleaded guilty if he had known he would be deported or denied reentry. In addition, he argued that he would have tried the case because he had "a great defense" to the charge. He argued that he did not know that the officer, who was working as security at a dance hall, was a police officer because the officer approached him from behind. And the officer testified at the habeas hearing that, as he was arresting Olvera, Olvera said, "I didn't know you were the police. I didn't know you were the police."

We conclude that Olvera met his burden to show a reasonable probability that, but for his counsel's erroneous advice, he would not have pleaded guilty and would have insisted on going to trial. See Moody, 991 S.W.2d at 857-58. We also conclude that Padilla and Martinez apply retroactively to the time of the guilty plea. See Ex parte Tanklevskaya, 361 S.W.3d 86, 95 (Tex.App.-Houston [1st Dist.] 2011, pet. filed); Ex parte De Los Reyes, 350 S.W.3d 723, 729 (Tex.App.-El Paso 2011, pet. granted); accord United States v. Orocio, 645 F.3d 630, 641 (3d Cir.2011); but see United States v. Amer, No. 11-60522, 2012 WL 1621005, at *3 (5th Cir. May 9, 2012) (holding Padilla does not apply retroactively); Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011) (same), cert. granted, --- U.S. ----, 132 S.Ct. 2101, ---L.Ed.2d ----, 80 U.S.L.W. 3429, 2012 WL 1468539, at *1 (U.S. Apr. 30, 2012).

We sustain Olvera's second issue and conclude that the trial court abused its discretion by denying habeas relief on the ground that trial counsel failed to adequately advise Olvera about the immigration consequences of a guilty plea. Because of our resolution of this issue, we do not need to address the remaining issues.

CONCLUSION
We reverse the trial court's order denying Olvera's application for a writ of habeas corpus, vacate the underlying judgment, and remand to that court for further proceedings.

FN1. Olvera's counsel states in his appellate brief that Olvera has since been deported.

*3 In 2010, the Supreme Court issued its opinion in Padilla v. Kentucky, --- U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which it explained a criminal defense attorney's duty to advise his client about the potential immigration consequences of a plea. In that case, Padilla pleaded guilty to an offense that subjected him to automatic deportation. The Supreme Court recognized that immigration law is complex and stated that when "the deportation consequences of a particular plea are unclear or uncertain ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 1483. But the Court also held that "when the deportation consequence is truly clear, the duty to give correct advice is equally clear." Id. The Court held that "constitutionally competent counsel would have advised [Padilla] that his conviction ... made him subject to automatic deportation." Id. at 1478, 1486-87. Because counsel did not so advise Padilla, the Court concluded that counsel was not constitutionally competent and that Padilla satisfied the first prong of Strickland. Id.; see Ex parte Martinez, No. PD-1338-11, 2012 WL 1868492, at *4-5 (Tex.Crim.App. May 16, 2012) (not designated for publication) (when deportation and exclusion from this country are automatic consequences of a guilty plea, it is not enough to advise noncitizen client that he faces the possibility of deportation or exclusion).

It is undisputed that a conviction for an aggravated felony results in automatic deportation or exclusion from the country. 8 U .S.C. § 1227(a)(2)(A)(iii) (2005) (stating that an alien "admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is ... convicted of an aggravated felony"); see Martinez, 2012 WL 1868492, at *4. It is also undisputed that the offense of assault of a public servant is an aggravated felony for federal immigration law purposes. See 8 U .S.C. § 1101(a)(43) (stating that a "crime of violence" is an aggravated felony); 18 U.S.C. § 16(a) (2000) (defining "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another"); TEX. PENAL CODE ANN. § 22.01(a) (West 2011) (defining "assault" offense to include causing or threatening to cause bodily injury to another). And it is undisputed that when a defendant is placed on deferred adjudication and some form of punishment is assessed, the deferred adjudication is a "conviction" for federal immigration law purposes. Martinez, 2012 WL 1868492, at *4 (citing 8 U.S.C. § 1101(a)(48)(A)).

Because the immigration consequences of a guilty plea to the assault offense in this case were clear, counsel's duty under Padilla and Martinez was to give Olvera clear advice about those consequences. See Padilla, 130 S.Ct. at 1478, 1486-87; Martinez, 2012 WL 1868492, at *4-5; Moody, 991 S.W.2d at 858. The record supports Olvera's argument that counsel did not satisfy his duty to give adequate advice about the immigration consequences. Counsel testified that he told Olvera he could be deported or denied reentry into this country, not that a guilty plea would result in automatic deportation and denial of reentry. Consequently, we conclude that Olvera satisfied his burden under the first prong of Strickland to show that counsel's performance fell below an objective standard of reasonableness. See Padilla, 130 S.Ct. at 1478, 1486-87.