                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-10-00441-CR
                               No. 10-10-00442-CR

                       EX PARTE MARIA GONZALES



                    From the County Court at Law No. 2
                         McLennan County, Texas
              Trial Court Nos. 20100004HC4 and 20100005HC4


                         MEMORANDUM OPINION


      In February of 2009, Appellant Maria Gonzales was arrested for shoplifting and

charged with Class B misdemeanor theft (over $50 but under $500). After bonding out

of jail, she was taken into custody by Immigration and Customs Enforcement and put

into removal proceedings because she had no legal status in the United States.

Gonzales posted bond and was released pending the resolution of her immigration

case. Two months later, she was again arrested for shoplifting and charged with Class

B misdemeanor theft (over $50 but under $500).

      On August 6, 2009, Gonzales entered pleas of nolo contendere and received

community supervision on both cases under a plea bargain. The hearing on the pleas
was not recorded. In each case, Gonzales signed a “waiver of jury trial and plea of nolo

contendere” that provided in part that her plea might result in her deportation,

exclusion of admission to this country, or denial of naturalization under Federal law.

          In May 2010, Gonzales appeared in immigration court; her application for relief

was denied and she was ordered “removed” because, she alleges, her second

misdemeanor theft conviction rendered her ineligible for cancellation of removal. See 8

U.S.C. §§ 1227(a)(2)(A)(ii), 1229b(b); see generally Ex parte Rodriguez, ___ S.W.3d ___, ___,

2012 WL 1429559, at *2-3 (Tex. App.—San Antonio Apr. 25, 2012, no pet. h.).

          In June 2010, Gonzales filed the two underlying applications for habeas corpus

under article 11.072 of the Code of Criminal Procedure. She alleged that her pleas of

nolo contendere were involuntary and sought to have her convictions set aside because

her counsel was ineffective and because she was not properly admonished by the trial

court.

          After an evidentiary hearing, the trial court entered an order denying relief in

each case.1 The trial court made the following findings:

         Gonzales’s pleas of nolo contendere were free and voluntary, and she
          understood the consequences of her plea.

         Gonzales was aware that there were immigration consequences to her pleas.

         Gonzales had retained an immigration attorney who was advising her during
          her criminal cases.

         In her criminal cases, Gonzales had a Spanish-speaking attorney, and a court-
          appointed interpreter was present during the proceedings.


1
    The trial judge in the criminal cases recused himself in the habeas cases because he was a witness.

Ex Parte Gonzales                                                                                         Page 2
      Gonzales signed written waivers that contained an admonishment that “my plea
       of guilty or nolo contendere may result in my deportation, exclusion of
       admission to this country, or denial of naturalization under Federal law.”

       Gonzales appeals, asserting in two issues that the trial court erred in denying

habeas relief because her attorney was ineffective and because the trial court did not

properly admonish her of the immigration consequences of her pleas.

               We review the trial court’s denial of a habeas corpus application for
       an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
       App. 2006). An applicant who asserts that her plea was not knowing and
       voluntary must prove her claim by a preponderance of the evidence. Id.
       We review “the record evidence in the light most favorable to the trial
       court’s ruling and [we] must uphold that ruling absent an abuse of
       discretion.” Id. We give almost total deference to the trial court’s findings
       that are “‘based upon credibility and demeanor.’” Ex parte Amezquita, 223
       S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d
       46, 50 (Tex. Crim. App. 2004)).

Rodriguez, ___ S.W.3d at ___, 2012 WL 1429559, at *1.

       In habeas corpus proceedings, “[v]irtually every fact finding involves a
       credibility determination” and “the fact finder is the exclusive judge of the
       credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex.
       Crim. App. 1996). In an article 11.072 habeas case, such as the one before
       us, the trial court is the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785,
       788 (Tex. Crim. App. 2011). “There is less leeway in an article 11.072
       context to disregard the findings of a trial court” than there is in an article
       11.07 habeas case, in which the Court of Criminal Appeals is the ultimate
       fact finder. Id. … “When the trial court’s findings of fact in a habeas
       corpus proceeding are supported by the record, they should be accepted”
       by the reviewing court. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.
       Crim. App. 2006) (citing Ex parte Evans, 964 S.W.2d 643, 648 (Tex. Crim.
       App. 1998); Ex parte Jarrett, 891 S.W.2d 935, 940 (Tex. Crim. App. 1994)).

Ex parte Ali, 368 S.W.3d 827, 831-32 (Tex. App.—Austin 2012, no pet. h.). We must also

defer “not only to all implicit factual findings that the record will support in favor of a

trial court’s ruling, ‘but also to the drawing of reasonable inferences from the facts.’”


Ex Parte Gonzales                                                                         Page 3
Amador v. State, 221 S.W.3d 666, 675-76 (Tex. Crim. App. 2007).

               We evaluate the effectiveness of trial counsel under the standard
       enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez
       v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The appellant bears
       the burden of proving that counsel was ineffective by a preponderance of
       the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
       1999). We indulge a strong presumption that counsel’s conduct fell within
       the wide range of reasonable professional assistance. See Bone v. State, 77
       S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail, the appellant must
       show (1) counsel’s performance fell below an objective standard of
       reasonableness; and (2) a reasonable probability exists that, but for
       counsel’s errors, the result would have been different. See Strickland, 466
       U.S. at 687-88, 694.

             In the context of a guilty plea, an appellant must show that his
       counsel’s advice about the guilty plea did not fall within the wide range of
       competence demanded of attorneys in criminal cases and that, but for trial
       counsel’s errors, there is a reasonable probability he would not have
       pleaded guilty and would have insisted on going to trial. Ex parte Moody,
       991 S.W.2d 856, 858 (Tex. Crim. App. 1999).

Ex parte Olvera, ___ S.W.3d ___, ___, 2012 WL 2336240, at *2 (Tex. App.—Dallas June 20,

2012, no pet. h.).

               In 2010, the Supreme Court issued its opinion in Padilla v. Kentucky,
       130 S.Ct. 1473 (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

Ex Parte Gonzales                                                                      Page 4
       *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).

Olvera, ___ S.W.3d at ___, 2012 WL 2336240, at *3.

       Gonzales alleged that Paul Flores, her criminal defense attorney, was ineffective

because he did not properly warn her of the severe immigration consequence by

pleading nolo contendere to the two theft charges, and that if she had known of the

consequence, she would have chosen to try her cases. Gonzales testified that she was

innocent and that she told Flores she was concerned about the repercussions to her

immigration status because her immigration attorney had told her not to plead guilty.

She said that Flores told her that there was no problem because hers were “minor cases”

and would not affect her immigration situation. She also said that Flores told her that

she would be getting “deferred probation.” Gonzales admitted to signing the waivers

but said that she did not know what was in them. When she appeared in court for the

plea hearing, she said that she was told she could not get “deferred probation” because

of the second theft charge.

       Flores testified. He said that he told Gonzales to have her immigration attorney

contact him, but that did not happen. Flores testified that he knew that Gonzales was

eligible for cancellation of removal with one theft conviction but that pleading to the

two theft charges would make her deportable and inadmissible: “what I researched

was that one conviction of theft, she would have relief available to her because it’s a

petty theft exception. … So I knew if she pled to two - - I’m familiar with the provision


Ex Parte Gonzales                                                                    Page 5
- - I knew if she pled to two, it would make her deportable, it would make her

inadmissible. And I advised her that before she agreed to plead.”

       He said that he advised Gonzales of that repercussion (that it “would” make her

deportable and inadmissible) but that she agreed to plead her cases because she did not

want to risk trial and going to jail if convicted. Flores related that being jailed upon her

arrest had been emotionally difficult on Gonzales and that she wanted her cases to be

finished without the risk of jail time. Flores denied telling Gonzales that pleading to

both charges would not affect her immigration situation because they were minor

offenses. He also said that he is fluent in Spanish and that he explained to her the

paperwork that she was signing in Spanish.

       In denying habeas relief and with its findings, the trial court plainly did not find

Gonzales credible but found Flores credible. And in finding that Gonzales’s pleas were

voluntary, the trial court implicitly found that Gonzales did not receive ineffective

assistance of counsel with respect to whether Flores warned Gonzales of the

immigration consequence by pleading nolo contendere to the two theft charges. Cf.

Olvera, ___ S.W.3d at ___, 2012 WL 2336240, at *3 (“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.”). Because the record supports these findings, and

because we must give almost total deference to them, the trial court did not abuse its



Ex Parte Gonzales                                                                     Page 6
discretion in denying Gonzales’s habeas application on the ground that she received

ineffective assistance of counsel. Issue one is overruled.

       In her second issue, Gonzales asserts that the trial court erred in refusing to grant

habeas relief because the trial judge in her criminal cases did not properly admonish her

of the immigration consequences of her pleas.          Before accepting a plea of nolo

contendere, the trial court must admonish the defendant of: “(4) the fact that if the

defendant is not a citizen of the United States of America, a plea of guilty or nolo

contendere for the offense charged may result in deportation, the exclusion from

admission to this country, or the denial of naturalization under federal law; … .” TEX.

CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West Supp. 2011). That article further provides:

       (d) The court may make the admonitions required by this article either
       orally or in writing. If the court makes the admonitions in writing, it must
       receive a statement signed by the defendant and the defendant’s attorney
       that he understands the admonitions and is aware of the consequences of
       his plea. If the defendant is unable or refuses to sign the statement, the
       court shall make the admonitions orally.

Id. art. 26.13(d).

       As stated above, no record was made of the plea hearing.            The Honorable

Michael Gassaway, who was the trial judge in the criminal cases, testified that he could

not recall exactly how he admonished Gonzales in her cases. He said that he typically

asked the defendant if he or she went over the paperwork with her lawyer and

understood it, and he would not proceed with accepting a plea if the defendant did not

acknowledge understanding what was in the paperwork. Judge Gassaway testified that

he almost always covered the immigration issue, and with a defendant using an


Ex Parte Gonzales                                                                     Page 7
interpreter, that suggested to him to pay particular attention to the immigration

admonishment.       Flores testified that he explained the paperwork to Gonzales in

Spanish.

       As noted above, Gonzales signed a “waiver of jury trial and plea of nolo

contendere” that provided in part that her plea might result in her deportation,

exclusion of admission to this country, or denial of naturalization under Federal law. It

also stated: “I have read each of the above and have had them explained to me by my

attorney/the Court. I understand the consequences of my plea, and I still insist upon

entering my plea in this case, and I request that the Court accept this acknowledgment.”

       Because the habeas record supports the trial court’s explicit and implicit findings

that Gonzales was admonished in accordance with article 26.13, the trial court did not

abuse its discretion in denying Gonzales’s habeas applications on the ground that she

was not properly admonished. Issue two is overruled.

       Having overruled both issues, we affirm the trial court’s order.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 23, 2012
Do not publish
[CR25]




Ex Parte Gonzales                                                                   Page 8
