Affirmed and Opinion filed January 8, 2013.




                                      In the

                    Fourteenth Court of Appeals

                               NO. 14-12-00090-CR

                       EX PARTE YADHER MURILLO


                On Appeal from the County Court at Law No. 7
                            Harris County, Texas
                      Trial Court Cause No. 1783805

                                   OPINION


      Applicant Yadher Murillo appeals the habeas court’s denial of his post-
conviction application for writ of habeas corpus, arguing that he was denied
effective assistance of counsel because his plea counsel failed to properly apprise
him that he faced presumptively mandatory deportation as a result of his guilty
plea, thus rendering his plea involuntary under Padilla v. Kentucky, —U.S.—, 130
S. Ct. 1473 (2010).     We conclude that applicant failed to prove that he was
prejudiced by any deficient performance of plea counsel. Finding no abuse of
discretion, we therefore affirm.
                   I.    FACTUAL AND PROCEDURAL BACKGROUND

      Applicant, a native of Nicaragua, became a legal permanent resident in
2001. In 2004, he was charged with the class A misdemeanor offense of assault of
a family member—his wife. Applicant pleaded guilty to this offense, and the trial
court assessed punishment at one year of deferred adjudication and a $400 fine.

      In 2009, applicant received notice from federal immigration officials for
removal proceedings, and was ordered removed based on his conviction for assault
of a family member. In 2011, applicant filed an application for writ of habeas
corpus, challenging the voluntariness of his plea based on ineffective assistance of
counsel.

      At a hearing before the habeas court, applicant testified that his defense
attorney, Eva Silva, told him that he could have problems with immigration and
that he may be deported if he entered a guilty plea. According to applicant, the
trial court1 also warned him that he could have immigration problems or
consequences as a result of his guilty plea. Applicant testified that Silva did not
advise him that he definitely would be deported, and that he did not remember if
the trial court advised him that he shall or would be deported because of his guilty
plea. Applicant stated that he would not have pleaded guilty if he had been
advised that he shall or would be deported because of his plea, and that he would
have insisted that Silva take his case to trial. The habeas court took judicial notice
of the “green plea form” that applicant signed in conjunction with his guilty plea.
This form includes a notice that if the accused is not a citizen of the United States,
then a plea of guilty or nolo contendere may result in deportation, exclusion from
admission, or denial of naturalization under federal laws. Applicant agreed that
when he signed this form he knew he could be deported.
      1
          The habeas judge was the same judge who presided over applicant’s plea proceedings.

                                               2
      Silva recalled representing applicant for the assault-of-a-family-member
case and that he pleaded guilty. Silva did not recall the exact conversation she had
with applicant more than seven years earlier, but testified that she discusses her
noncitizen client’s potential immigration consequences prior to entering into a plea
bargain agreement. Part of Silva’s standard practice involves advising the client of
the contents of the trial court’s green plea form—informing the client that he may
or could be deported, denied admission to the United States, or denied citizenship
based on his guilty plea. Silva stated that advising the client of the plea form
contents is “the bare minimum,” but that she “actually goes into more detail with
[her] clients”: “I admonish my client that he will be facing some immigration
consequences at some time. . . . I can’t tell them when, but the fact that they are
some day going to face adverse consequences will come.”

      When asked about the facts of applicant’s assault case, Silva referenced the
offense report that was included in applicant’s case file at the time she spoke with
him. Silva recalled that the report indicated the officer who responded to the call
actually viewed applicant assaulting the complainant or saw him on top of her, and
that the officer heard the complainant screaming.

      Applicant urged the habeas court to grant relief on the ground that Silva had
provided ineffective assistance of counsel by failing to properly inform applicant
that pleading guilty to assault against a family member rendered his deportation
presumptively mandatory. The habeas court denied relief and subsequently issued
findings of fact and conclusions of law. The habeas court issued the following
findings: Silva advised applicant that he may be deported; Silva’s standard
business practice is to discuss potential immigration consequences with her client,
which includes advising that he may or could be deported, denied admission, or
denied citizenship; Silva’s standard business practice is to review the green plea

                                         3
form with her client and she reviewed it with applicant; Silva’s standard business
practice is to advise her client that someday they will face adverse immigration
consequences; the trial court gives standard admonishments to every defendant
subject to an INS/ICE hold, that he may be deported or denied citizenship as a
result of his plea; and applicant freely and voluntarily signed the plea agreement
form. The habeas court concluded as a matter of law that applicant freely and
voluntarily entered his guilty plea and that Silva’s representation of applicant met
the standard required by the Sixth Amendment.

      On appeal, applicant presents the sole issue of whether he is entitled to
habeas relief based on ineffective assistance of counsel, complaining that his plea
counsel performed deficiently by not informing him that his guilty plea would
render his deportation presumptively mandatory and that he suffered prejudice
because he would not have pleaded guilty had he known he was facing virtually
certain deportation.

                          II.   STANDARD OF REVIEW

      We review a habeas court’s determination on an application for writ of
habeas corpus for abuse of discretion. Ex parte Fassi, No. 14-11-00914-CR, —
S.W.3d—, 2012 WL 6014603, at *3 (Tex. App.—Houston [14th Dist.] Dec. 4,
2012, no pet. h.) (citing Aguilar v. State, 375 S.W.3d 518, 520 (Tex. App.—
Houston [14th Dist.] 2012, pet. filed)). The habeas applicant bears the burden of
establishing by a preponderance of the evidence that the facts entitle him to relief.
Id. (citing Aguilar, 375 S.W.23d at 520). “We consider the evidence presented in
the light most favorable to the habeas court’s ruling regardless of whether the
court’s findings are implied or explicit, or based on affidavits or live testimony.”
Id. (citing Aguilar, 375 S.W.3d at 520).      We will uphold the habeas court’s
judgment as long as it is correct on any theory of law applicable to the case. Ex

                                         4
parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001).

                           III.   GOVERNING LAW

      Applicant sought habeas relief on the theory that he was denied effective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and
such ineffectiveness rendered his guilty plea involuntary under Padilla v.
Kentucky, —U.S.—, 130 S. Ct. 1473 (2010). The test for determining the validity
of a guilty plea is “whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” North Carolina v.
Alford, 400 U.S. 25, 31 (1970).      The two-pronged Strickland test applies to
challenges to guilty pleas, such as the one in the present case, premised on
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Thus,
to be entitled to relief, applicant was required to show by a preponderance of the
evidence that (1) trial counsel’s performance fell below the objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 687–88, 694. A reasonable probability is one sufficient to
undermine confidence in the outcome. Id. at 694. Failure to establish either
deficient performance or prejudice will defeat a claim of ineffectiveness. Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

      This court applies Padilla retroactively. Aguilar, 375 S.W.3d at 524. Under
Padilla, plea counsel’s performance is deficient if counsel fails to advise his
noncitizen client about deportation consequences that are “truly clear.” Fassi, —
S.W.3d—, 2012 WL 6014603, at *4 (citing Padilla, 130 S. Ct. at 1483; Aguilar,
375 S.W.3d at 524).     Thus, plea counsel performs deficiently if he “merely
mentions the possibility of deportation when the relevant immigration provisions
are presumptively mandatory.”     Id. (citing Aguilar, 375 S.W.3d at 524).      To

                                         5
establish prejudice, applicant “‘must convince the court that a decision to reject the
plea bargain would have been rational under the circumstances.’” Id. (quoting
Padilla, 130 S. Ct. at 1485; Aguilar, 375 S.W.3d at 525). “‘The test is objective; it
turns on what a reasonable person in the defendant’s shoes would do.’”              Id.
(quoting United States v. Smith, 844 F.2d 203, 209 (5th Cir. 1988) (per curiam)).

      In the Padilla context, when the prejudice prong of the Strickland test is
dispositive, we need address only that prong on appeal. Fassi, —S.W.3d—, 2012
WL 6014603, at *4 (citing Seamster v. State, 344 S.W.3d 592, 594 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d)). “[I]t is not necessary to determine whether
trial counsel’s representation was deficient if appellant cannot satisfy the second
Strickland prong.” My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref’d).        “‘If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.’” Id. (quoting Strickland,
466 U.S. at 697). This is because the reviewing court’s purpose “is not to grade
trial counsel’s performance.” Id. (citing Strickland, 466 U.S. at 697)). We review
the ultimate question of prejudice under Strickland de novo, giving deference to
any underlying historical fact determinations by the habeas court.         Fassi, —
S.W.3d—, 2012 WL 6014603, at *4 (citing Johnson v. State, 169 S.W.3d 223, 239
(Tex. Crim. App. 2005)).

                                IV.    ANALYSIS

      Applicant contends that the habeas court abused its discretion by denying
him relief because plea counsel’s failure to admonish applicant that he shall be
deported or that his deportation was a virtual certainty was inadequate under
Padilla’s requirement for plea counsel to advise noncitizen defendants of “truly
clear” deportation consequences. Applicant further asserts if he had known that he

                                          6
faced presumptively mandatory deportation, he would have insisted on going to
trial on his assault charge and this decision would have been rational under the
circumstances. The State responds that Padilla does not apply retroactively; plea
counsel’s advice was adequate because counsel advised applicant that someday he
would face adverse immigration consequences; and applicant failed to establish
prejudice.

      We recently rejected the State’s argument concerning, and have since
reaffirmed, Padilla’s retroactivity. Fassi, —S.W.3d—, 2012 WL 6014603, at *3
(citing Aguilar, 375 S.W.3d at 524). However, we conclude that the habeas court
acted within its discretion in denying applicant relief because he failed to prove
prejudice.

         1. Determining prejudice on this record

      At the hearing, applicant presented evidence regarding his background in the
United States and testified that he would have “no reason” to return to Nicaragua.
He testified that at the time, he was working to support his wife and three children
living with him, and that he had a sister who also lived in the United States.
Applicant testified that the plea deal Silva discussed with him was thirty days in
jail or one year of probation. He also testified that if he had known that he would
be deported, he would not have pleaded guilty and would have insisted on going to
trial. Silva testified that applicant pleaded guilty to assault of a family member.
With regard to the facts of applicant’s case, Silva testified that the offense report
was included in the case file at the time she spoke with him. She recalled that the
report indicated the officer who responded to the call viewed applicant either
assaulting the complainant or on top of her, and that the officer heard the
complainant screaming.

      The habeas court here did not issue any findings of facts or conclusions of
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law specifically relating to the prejudice prong of Strickland. Based on the court’s
findings and conclusions, it focused its decision on the deficient-performance
prong of Strickland and decided it need not reach prejudice. However, despite this
lack of findings, we can uphold the habeas court’s denial of relief based on a lack
of prejudice. This court is obligated to uphold the habeas court’s judgment if it is
supported by the record and was correct under any theory of law applicable to the
case. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003);
Taylor, 36 S.W.3d at 886. This rule applies even if the habeas court gave a
different, indeed erroneous, reason for its ruling. See Romero v. State, 800 S.W.2d
539, 543 (Tex. Crim. App. 1990).         Without addressing this court’s analysis
regarding prejudice in Aguilar, we conclude that Aguilar does not apply to the
prejudice analysis in the case under review because we are not faced with a record
that is “only marginally developed regarding the alleged prejudice.” 375 S.W.3d at
526 (noting lack of live testimony and specific testimony regarding rationality of
rejecting plea under circumstances, and also lack of rebuttal evidence by State).

         2. Prejudice inquiry

      In the Padilla context, we must determine whether applicant proved there is
a reasonable probability that but for plea counsel’s errors, he would not have
pleaded guilty, which requires proof that a decision to reject the plea bargain was
rational under the circumstances. Fassi, —S.W.3d—, 2012 WL 6014603, at *5
(citing Padilla, 130 S. Ct. at 1485). We make this inquiry on a “case-by-case
basis, considering the circumstances surrounding the plea and the gravity of the
alleged failure.”    Id.   We therefore proceed to review the circumstances
surrounding applicant’s plea in light of the evidence presented to the habeas court.

         a. Evidence of applicant’s guilt

      One key circumstance courts consider when determining whether a decision
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to reject a plea bargain would have been a rational one is the strength of the State’s
case or evidence of the applicant’s guilt. For example, in Fassi, this court affirmed
denial of habeas relief based on lack of sufficient prejudice where the evidence of
guilt in the applicant’s underlying marijuana possession case was “overwhelming.”
—S.W.3d—, 2012 WL 6014603, at *2, 6. There, the officer who conducted the
traffic stop averred that the applicant smelled of marijuana and had marijuana
flakes on his shirt, and then confessed to having marijuana in the vehicle. Id.

       In Ex Parte Ali, the court affirmed denial of habeas relief based on lack of
prejudice where “[t]he circumstances of this case . . . included evidence of Ali’s
guilt that was, in the words of counsel and [another client of counsel charged in the
same sting], ‘overwhelming’ and ‘very strong.’” 368 S.W.3d 827, 840 (Tex.
App.—Austin 2012, pet. ref’d). In Ali, plea counsel averred that he reviewed the
State’s evidence with the applicant, including video and audio recordings showing
him delivering drug paraphernalia to an undercover officer. Id. at 837, 840.

       Applicant generally relies upon cases from various sister courts of appeals in
which the courts found prejudice. Presuming, without deciding, that the analysis in
these cases is correct, these cases are distinguishable. In those cases, either the
State presented no rebuttal evidence as to the strength of its case 2 or, as outlined in
the next factor, the circumstances indicated that the applicant had a defense to the
charge or did not believe he was guilty.

       2
          Ex Parte Tanklevskaya, 361 S.W.3d 86, 90 (Tex. App.—Houston [1st Dist.] 2011, pet.
filed); Ex Parte Romero, 351 S.W.3d 127, 131 (Tex. App.—San Antonio 2011, no pet.).
Moreover, we have rejected the reasoning employed by the San Antonio court of appeals in
Romero, where the court reversed denial of a habeas corpus application based almost entirely on
the self-serving affidavit of the applicant. Fassi, —S.W.3d—, 2012 WL 6014603, at *7. See
also Ali, 368 S.W.3d at 841 n.11 (declining to adopt approach on prejudice prong whereby
reviewing court—as in Tanklevskaya and Romero—simply accepts as true applicant’s statements
without undertaking analysis of whether decision to reject plea bargain and instead go to trial
was rational under the circumstances).

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      Here, evidence in the record indicates that the State would have had a strong
case against applicant at trial for assault of a family member. Silva testified that
the offense report from the State’s file indicated the responding officer either
viewed applicant actually assaulting the complainant or saw him “on top of her.”
In addition, the responding officer heard the complainant screaming. This offense
report was included in the case file at the time Silva spoke with applicant about his
plea option. Applicant does not dispute the contents of the offense report or that
Silva reviewed it with him during plea discussions.

         b. Factual or legal defenses

      Another key circumstance courts explicitly consider when analyzing the
prejudice prong is whether the applicant had any defenses. In Fassi, in affirming
the denial of habeas relief based on prejudice, this court noted that “appellant
presented no affirmative evidence that he had any factual or legal defenses to the
charge” of marijuana possession. —S.W.3d—, 2012 WL 6014603, at *6.

      Courts that have found prejudice also properly take into consideration
whether the applicant had any defenses to the charged offense. For example, in
Salazar v. State, the court considered that the applicant “believes he is not guilty
because he thought the taking of the tailgate was a prank and that his friend
intended to return it.” 361 S.W.3d 99, 103 (Tex. App.—Eastland 2011, no pet.).
Likewise, in Ex Parte Olvera, the applicant argued that he had a “great defense” to
the charge of assaulting a public servant—he was approached from behind and did
not know the person was a police officer. No. 05-1101349-CR, —S.W.3d—, 2012
WL 2336240, at *4 (Tex. App.—Dallas June 20, 2012, no pet.) (officer testified at
habeas hearing that, while being arrested, Olvera said, “I didn’t know you were the
police. I didn’t know you were the police.”).

      Here, applicant presented no affirmative evidence that he had any factual or
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legal defenses to the charge, or that he believes he was not guilty of assaulting his
wife.

           c. Immigration status as primary concern

        Another circumstance courts consider when determining prejudice is
whether the applicant presented evidence indicating that the immigration
consequences of his plea were his “paramount concern.” Fassi, —S.W.3d—, 2012
WL 6014603, at *6. In Fassi, in affirming the denial of habeas relief based on lack
of prejudice, this court considered that the applicant presented no evidence he had
“expressed his concern about deportation to the trial court, plea counsel, or anyone
else at the time of his plea.” Id.

        Cases in which courts have found prejudice present different circumstances
because in those cases the applicant presented other evidence tending to support
that immigration consequences were his primary concern. See id. at *7. In Ex
parte Elizondo-Vasquez, plea counsel testified that the applicant’s “primary
concern was how the charge and any resulting incarceration would impact his
status as an immigrant” but that he failed to provide his client with a definitive
answer. 361 S.W.3d 120, 121, 122–23 (Tex. App.—Texarkana 2011, no pet.)
(reversing denial of habeas relief “in light of clear and consistent evidence that
Vasquez would not have pled guilty but for the deficient advice”). At every
meeting, the applicant had “specifically inquired of trial counsel about [his
immigration status] and the effect his plea would have upon it, as well as potential
outcomes.” Id. at 123.

        Here, the record contains no evidence that applicant expressed to anyone
that deportation was his primary concern or that he specifically asked plea counsel
about the effect his plea would have on his immigration status. Indeed, applicant
presented no evidence that he did or said anything to express his alleged concern—
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that he had “no reason” to want to return to Nicaragua—despite receiving multiple
warnings.      An applicant’s failure to express concerns about immigration
consequences after receiving repeated warnings also may be a prejudice factor to
consider.     Fassi, —S.W.3d—, 2012 WL 6014603, at *6 n.6 (citing Ex parte
Moreno, 382 S.W.3d 523, 529 (Tex. App.—Fort Worth Aug. 30, 2012, no pet.)
(finding no prejudice where applicant’s “total inaction upon receiving repeated
verbal and written warnings about the possibility of his deportation” indicated “his
immigration status was not his primary concern upon pleading guilty”)). This is
particularly so when, in addition to plea counsel’s and the trial court’s warnings to
applicant that he possibly could face deportation, one of the warnings that the
habeas court found counsel provided was that applicant certainly would face
adverse immigration consequences someday if he pleaded guilty.

            d. Plea deal compared to penalties risked at trial

      When analyzing prejudice, courts also consider the circumstances of the plea
deal compared to what penalties the applicant risked by going to trial. Although
the inquiry is not whether the applicant would have received a more favorable
disposition at trial, we properly consider evidence concerning the likelihood of
success at trial when determining whether it would be rational to reject the plea
bargain.     Id. at *6 n.4; Ali, 368 S.W.3d at 840 (finding no prejudice where
applicant “would have risked the same deportation consequences and, in addition,
could have been sentenced to up to one full year of actual jail time” at trial where
his conviction on delivery of drug paraphernalia was “virtually certain”). We also
consider whether the applicant presented evidence that any other plea deal would
have helped him avoid negative immigration consequences. Fassi, —S.W.3d—,
2012 WL 6014603, at *6; see Moreno, 382 S.W.3d at 529 (finding no prejudice
where applicant presented no evidence State would have considered a different

                                           12
plea bargain that did not have same immigration consequences). And we consider
whether the applicant has presented evidence regarding the likelihood of obtaining
probation if convicted at trial. Fassi, —S.W.3d—, 2012 WL 6014603, at *7 & n.7;
Salazar, 361 S.W.3d at 103.

      In Fassi, the plea deal was six months’ deferred adjudication and a $150
fine. If convicted at trial, the applicant faced a maximum of six months’
confinement and a $2000 fine for Class B misdemeanor marijuana possession. —
S.W.3d—, 2012 WL 6014603, at *1. Although Fassi argued that his situation was
“no different” from that in Salazar—and in fact Salazar potentially would have
risked more (180 days to two years in jail and a $10,000 fine) by going to trial on
his theft charge—Salazar presented evidence of a factual defense to the crime.
Fassi, —S.W.3d—, 2012 WL 6014603, at *7 (citing Salazar, 361 S.W.3d at 103).
Further, Salazar presented evidence that he had a great deal of community support
that would help him seek probation if convicted at trial. Id. (citing Salazar, 361
S.W.3d at 103). In contrast, Fassi presented no evidence of any defenses, merely
argued that he would be eligible for probation if convicted at trial but failed to
develop the habeas record concerning the likelihood of actually obtaining
probation, and presented no evidence that another plea deal would have helped him
avoid deportation. Id. at *2, 6 & n.7. Thus, despite the shorter maximum jail time
and lower maximum fine amount, in affirming based on the prejudice prong, we
reasoned that “a rational noncitizen would not likely risk a trial if the result is near-
certain conviction—under those circumstances, the defendant faces a harsher
criminal penalty in addition to the same immigration consequences of pleading
guilty.” Id. at *6.

      Here, applicant testified that the plea deal offered by the State was thirty
days in jail or one year of probation. If convicted at trial for assault of a family

                                           13
member, applicant faced a maximum of one year in jail and a $10,000 fine. TEX.
PENAL CODE ANN. § 12.21 (West 2012). Either way, applicant was presumptively
deportable.3 On this record, where there was strong evidence of guilt and no
evidence of any factual or legal defenses to the crime, the odds of acquittal, and
thus of avoiding deportation, appear to have been quite slim. Moreover, applicant
did not assert that he would have attempted to negotiate a different plea deal, and
presented no evidence that any other plea deal would have helped him avoid
deportation. Further, although applicant would have been eligible for probation if
convicted at trial, he failed to present evidence that he likely would receive
probation. Cf. Salazar, 361 S.W.3d at 103 (noting evidence of community support
for probation). Essentially, the choice facing applicant was whether he wanted to
take a plea deal where he could receive little or no jail time and would face
presumptively mandatory deportation or reject the deal and proceed to trial, where
there was a significant likelihood he would be convicted, and where he risked the
exact same deportation consequence and a harsher penalty of up to one full year in
jail.

            3. Applicant did not prove prejudice.

        Applicant particularly attempts to analogize his case to Salazar because of
certain similar positive background facts (no prior criminal record and family ties
in the United States) and based on a relatively similar length of jail time at risk for
the underlying crime if convicted at trial (180 days to two years versus one year).
Presuming, without deciding, that the analysis in Salazar is correct, Salazar
presented entirely distinguishable circumstances: the State presented no rebuttal
evidence on prejudice; the applicant believed he had not committed any crime but
        3
         See Enyong v. State, 369 S.W.3d 593, 600–02 (Tex. App.—Houston [1st Dist.] 2012, no
pet.) (concluding that deportation consequence was “truly clear” for conviction for misdemeanor
assault of a family member).

                                              14
merely had participated in his friend’s high-school prank; and the applicant
presented evidence regarding the community support that would help him seek
probation if convicted at trial. 361 S.W.3d at 101–03.

      Aside from applicant’s own self-serving statement that he would have
insisted his counsel take his case to trial had he known he would be deported, he
presented no other evidence corroborating his position that it would have been
rational to reject a plea deal under the circumstances. See Ali, 368 S.W.3d at 840–
41. Applying the factors described above, we conclude that applicant failed to
prove prejudice.

      First, the State presented rebuttal evidence showing that it had a strong case
against applicant for the charge of assault of a family member based on Silva’s
testimony describing the offense report of the responding officer contained in the
State’s file, which report she shared with applicant during their plea discussions.
Second, applicant did not present any evidence that he had any potentially viable
defense to the charge of assaulting his wife. Third, although applicant generally
testified that he had “no reason” to want to return to Nicaragua, he did not present
any evidence that he informed plea counsel or anyone else, including the trial
court, that avoiding deportation was his primary concern. Even assuming plea
counsel’s advice did not meet Padilla’s performance standard, the record reflects
that—in addition to multiple warnings about how pleading guilty could result in
his deportation—Silva told applicant he someday would face adverse immigration
consequences. Fourth, based on the evidence of applicant’s guilt and his lack of
defenses, his likelihood of success at trial was low. And applicant presented no
evidence that another plea deal could have helped him avoid deportation or that he
likely would receive probation if convicted. Thus, applicant would have faced a
harsher criminal penalty in addition to the same deportation consequence if he had

                                        15
rejected the plea bargain.

      We therefore conclude that applicant has failed to prove that a decision to
reject the plea deal would have been rational under the circumstances. Thus, the
habeas court did not abuse its discretion in denying applicant’s application for
relief, and we overrule applicant’s sole issue on appeal.

                              V.     CONCLUSION

      Accordingly, we affirm the habeas court’s judgment denying relief.




                                       /s/    Tracy Christopher
                                              Justice


Panel consists of Justices Frost, Christopher, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).




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