Affirmed and Memorandum Opinion filed December 23, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00183-CR

                EX PARTE EDWIN MAURICIO GUEVARA


                   On Appeal from the 185th District Court
                            Harris County, Texas
                      Trial Court Cause No. 1333185-A

                 MEMORANDUM                     OPINION


      Applicant Edwin Mauricio Guevara appeals the denial of his post-conviction
application for writ of habeas corpus, arguing that he was denied effective
assistance of counsel on the grounds that his trial counsel failed to adequately
advise him of the immigration consequences of his guilty plea. We affirm.

                                 BACKGROUND

      Applicant, a native of El Salvador, was legally admitted into the United
States in 1998 and received Temporary Protected Status (TPS). On February 29,
2012, applicant was charged with the state jail felony offense of possession of a
controlled substance, namely cocaine, in an amount weighing less than one gram.
See Tex. Health & Safety Code § 481.115(a). Applicant pleaded guilty pursuant to
an agreement with the State and the trial court deferred adjudication of his guilt,
placed him on community supervision for two years, and assessed a $200.00 fine.

      One year later, immigration authorities arrested applicant and put him into
removal proceedings in immigration court on the ground that his felony conviction
rendered him deportable from the United States. See 8 U.S.C. § 1227(a)(2)(B)(i).
Shortly after, the U.S. Citizenship and Immigration Services informed applicant
that it was withdrawing its approval of his TPS. Due to the arrest, applicant could
not comply with the conditions of his community supervision. On July 16, 2013,
the State filed a motion to adjudicate guilt to revoke applicant’s community
supervision. On July 2, 2014, the trial court granted the State’s motion and
sentenced applicant to six months’ confinement and assessed a $200.00 fine.

      Prior to the trial court’s ruling, applicant filed an application for writ of
habeas corpus, alleging that his trial counsel did not adequately advise him about
the immigration consequences of his guilty plea and thus rendered ineffective
assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). Applicant
attached his affidavit, claiming that he would have never pleaded guilty had he
known he would be deported or that he would be unable to renew his TPS.

      The State provided the affidavit of applicant’s trial counsel, Kimberly J.
Samman. Samman stated the following: when applicant told her he was a non-
citizen, she informed him that his immigration status may be affected and he may
be deported; she repeatedly advised applicant to meet with an immigration attorney
but he never did; she met with an immigration attorney and relayed to applicant the
immigration attorney’s opinion that a guilty plea would affect applicant’s TPS and
put him into deportation proceedings; and she admonished him again of the

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immigration consequences when applicant pleaded guilty. The State also provided
the affidavit of Samman’s assistant and translator, Nancy V. Cortez, who
corroborated Samman’s statements.

      The trial court conducted a hearing based on the affidavits and denied the
application for writ of habeas corpus on February 6, 2014. The trial court issued
extensive findings of fact and conclusions of law and stated that it found
Samman’s and Cortez’s affidavits to be credible and that applicant’s affidavit was
not credible. Applicant timely filed this appeal.

                  STANDARD OF REVIEW AND APPLICABLE LAW

      We review a trial court’s determination on an application for writ of habeas
corpus for abuse of discretion. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). An applicant seeking post-conviction habeas
corpus relief bears the burden of establishing by a preponderance of the evidence
that the facts entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.
Crim. App. 2002). The trial court is the sole finder of fact in a habeas proceeding.
Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). In reviewing
the trial court’s decision to grant or deny relief, we view the facts in the light most
favorable to the trial court’s ruling. Fassi, 388 S.W.3d at 886. We afford almost
total deference to the trial court’s findings, especially when the factual findings are
based on an evaluation of credibility and demeanor. Ex parte Amezquita, 223
S.W.3d 363, 367 (Tex. Crim. App. 2006). We will uphold the trial court’s
judgment as long as it is correct on any theory of law applicable to the case. Ex
parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam).

      The test for determining the validity of a guilty plea is whether it 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). A guilty plea is
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not knowing or voluntary if it is made as a result of ineffective assistance of
counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012).
The two-pronged Strickland test applies to challenges to guilty pleas based on
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To be
entitled to habeas relief, the applicant must show by a preponderance of the
evidence that (1) the trial counsel’s performance fell below the objective standard
of reasonableness, and (2) there is a reasonable probability that, but for the trial
counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687−88, 694 (1984).

       Under Padilla, trial counsel’s performance is deficient if the trial counsel
fails to advise a non-citizen client about deportation consequences that are “truly
clear.” 559 U.S. at 369. Therefore, trial counsel performs deficiently if he “merely
mentions the possibility of deportation when the relevant immigration provisions
are presumptively mandatory.” Fassi, 388 S.W.3d at 886. However, under Padilla,
when the prejudice prong of the Strickland test is dispositive, we need only address
that prong on appeal. Ex parte Murillo, 389 S.W.3d 922, 927 (Tex. App.—Houston
[14th Dist.] 2013, no pet.); see also My Thi Tieu v. State, 299 S.W.3d 216, 225
(Tex. App.—Houston [14th Dist.] 2009, 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.”). Thus, “[i]f 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.” Strickland, 466 U.S. at
697.

                         ANALYSIS OF APPELLANT’S ISSUE

       In his sole error on appeal, applicant contends that the trial court erred in
denying him relief because his trial counsel rendered ineffective assistance of

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counsel by failing to advise him that (1) by pleading guilty, his TPS would be
withdrawn, (2) deportation was a virtual certainty or presumptively mandatory as
required by Padilla, and (3) he would be arrested by immigration authorities and
be unable to comply with the conditions of his community supervision.

       Under the prejudice prong of Strickland, the applicant must show that there
is a reasonable probability that, but for his trial counsel’s errors, he would have not
pleaded guilty and would have insisted on proceeding to trial. Hill, 474 U.S. at 59.
We make this inquiry on a “case-by-case basis, considering the circumstances
surrounding the plea and the gravity of the alleged failure.” Fassi, 388 S.W.3d at
887−88. The applicant must show that a decision to reject the plea agreement
would have been rational under the circumstances. Padilla, 559 U.S. at 372. In
Murillo, this Court applied a four-factor test to determine prejudice under
Strickland. 389 S.W.3d at 928−30. Thus, to determine whether the applicant’s
rejection of the plea would have been rational under the circumstances, this Court
looks at the following four factors: (1) whether there is evidence of the applicant’s
guilt; (2) whether the applicant had any factual or legal defenses; (3) whether
immigration status was his primary concern; and (4) how the plea deal compared to
the penalties risked at trial. Id.

       Applicant argues that if he had known he was going to be arrested by
immigration authorities while on community supervision, he would have insisted
on going to trial and this decision would have been rational under the
circumstances. Applicant further contends that he would have rejected the plea
deal if he had known he faced presumptively mandatory deportation and that he
would be unable to renew his TPS.

       One key circumstance courts consider when determining whether a decision
to reject a plea deal would have been a rational one is the strength of the State’s

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case or evidence of the applicant’s guilt. Id. at 928. As the trial court recognized,
“the record does not contain much evidence describing the State’s evidence against
Applicant.”   Thus, the trial court considered this factor along with whether
applicant had any factual or legal defenses to the possession charge. Here,
applicant presented no evidence that he had any factual or legal defenses to the
possession charge. See id. at 929 (finding applicant presented no affirmative
evidence that he had any factual or legal defenses to the charge or that he believed
he was not guilty of the charge); Fassi, 388 S.W.3d at 889 (finding no prejudice
when appellant presented no affirmative evidence that he had any factual or legal
defenses to the charge). Applicant also never maintained his innocence or alleged
that he was not guilty of possession of cocaine. In fact, applicant’s plea
acknowledges that he “unlawfully, intentionally and knowingly” possessed
cocaine.

      The only potential defense applicant referred to was in his affidavit in which
he claimed that had he known he would be deported, he would have never pleaded
guilty to something “that was not [his].” However, the trial court found that
applicant’s affidavit was not credible and we must defer to that determination if it
is supported by the record. See Fassi, 388 S.W.3d at 888. Further, the State does
not have to prove the applicant owned the drugs. Instead, the State need only show
applicant “exercised control, management, or care over the substance . . . and the
accused knew the matter possessed was contraband.” Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005).

      Applicant also alleges a series of defenses for the first time on appeal,
arguing that a warrantless search of his vehicle occurred and that there was no
proof applicant knew the cocaine was in his vehicle. However, there is no evidence
in the record of applicant having ever raised these defenses or having brought them

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to the attention to the trial court. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999) (“Any allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.”). The trial court also considered the fact that “Samman’s affidavit
conveys that Applicant had no viable factual or legal defenses to the charged
offense.” Samman stated in her affidavit that she explained to applicant that a
dismissal was highly unlikely. When Samman discussed applicant’s claimed
defenses with the prosecutor, the prosecutor agreed to further investigate the case.
The prosecutor called the arresting officer, but the officer could not substantiate
any of applicant’s claimed defenses. The record supports the trial court’s finding
that applicant “faced a high risk of being convicted of the charged crime if he had
insisted on trial.” Accordingly, this factor weighs against a finding of prejudice.

      The court can also consider whether applicant presented evidence indicating
that the immigration consequences of his plea were his paramount concern.
Murillo, 389 S.W.3d at 929. The trial court found that applicant’s primary concern
was avoiding incarceration, rather than the adverse immigration consequences of
his plea. Samman’s affidavit stated that after she warned applicant that he may be
deported, she repeatedly told applicant to consult an immigration attorney but
applicant never did. Samman affirmatively sought out advice from an immigration
attorney and explained to applicant the immigration attorney’s opinion that a guilty
plea would affect applicant’s TPS and put him into deportation proceedings.
Samman’s assistant provided applicant with the name and number of the
immigration attorney, but applicant never contacted him. Applicant’s failure to
seek advice from an immigration attorney suggests that the immigration
consequences of his plea were not his primary concern.

      Furthermore, at the plea proceeding, applicant did not express any concern

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about possible deportation despite both his trial counsel’s and the trial court’s
admonishments concerning immigration. See id. at 930 (“An applicant’s failure to
express concerns about immigration consequences after receiving repeated
warnings also may be a prejudice factor to consider.”); Fassi, 388 S.W.3d at 889
(citing Ex parte Moreno, 382 S.W.3d 523, 529 (Tex. App.—Fort Worth 2012, pet.
ref’d) (finding immigration consequences were not applicant’s primary concern
when pleading guilty “based upon appellant’s apparent total inaction upon
receiving repeated verbal and written warnings about the possibility of his
deportation”). Instead, the trial court noted that applicant informed Samman that he
did not want to go to trial and just wanted to get his case over with. Thus, the
record supports the trial court’s finding that adverse immigration consequences
were not applicant’s primary concern.

      Another circumstance courts can consider when analyzing prejudice is how
the plea deal compared to what penalties the applicant risked by going to trial.
Murillo, 389 S.W.3d at 930. In making this determination, the court can consider
whether the applicant presented evidence that any other plea deal would have
helped him avoid negative immigration consequences. Id.; see also Moreno, 382
S.W.3d at 529 (finding that there was no prejudice because applicant presented no
evidence that the State would have offered a different plea deal that did not have
the same immigration consequences). The court can also look at whether the
applicant has presented any evidence that he would have received probation if
convicted at trial. Murillo, 389 S.W.3d at 930.

      Here, the State offered applicant plea options of 60 days in the Harris
County Jail or a two-year deferred adjudication period. If convicted at trial, the
punishment range was confinement in state jail for 180 days to two years, along
with a potential fine of up to $10,000.00. See Tex. Penal Code § 12.35(a), (b).

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Applicant pleaded guilty and received deferred adjudication for two years.
However, due to his arrest by immigration authorities, he was unable to comply
with the conditions of his community supervision and his deferred adjudication
was revoked. Thus, applicant was ultimately sentenced to 180 days in jail.
Applicant was subject to deportation under either scenario, regardless of whether
he pleaded guilty or decided to go to trial and was found guilty. See Ex parte Luna,
401 S.W.3d 329, 335 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(“[Applicant] was subject to automatic removal regardless of whether he pled
guilty to the theft charge or decided to go to trial and was ultimately found guilty
by a jury.”); see also 8 U.S.C. § 1101(a)(48) (defining “conviction” as having
occurred for purposes of federal immigration law when a formal judgment of guilt
of the alien has been entered by a court). Thus, applicant faced the same adverse
immigration consequences from pleading guilty as he would if he was found guilty
at trial.

        Further, because the record supports the trial court’s finding that applicant
faced a high risk of conviction at trial, it is unlikely applicant would have been
acquitted at trial. See Murillo, 389 S.W.3d at 931 (“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 avoiding deportation, appear to have been
quite slim.”). Therefore, the record supports the trial court’s finding that
“Applicant received a good deal to resolve his criminal case by accepting the
State’s plea bargain offer.” Applicant also failed to present evidence that the State
was willing to offer a different plea deal with more favorable immigration
consequences.

        The only evidence applicant presents to suggest that it would have been
rational to reject the plea deal is his own statement that he would have never

                                          9
pleaded guilty had he known he would be deported and unable to renew his TPS.
However, the trial court found that applicant’s affidavit was not credible and we
must defer to that determination if it is supported by the record. See Fassi, 388
S.W.3d at 888 (“[T]he habeas court was free to disbelieve appellant’s self-serving
testimony that he would not have pled guilty if he had been aware of the
immigration consequences of his plea.”); Ex parte Ali, 368 S.W.3d 827, 840−41
(Tex. App.—Austin 2012, pet ref’d) (“The only evidence that [applicant] presented
which tended to show that he would have insisted on going to trial are statements
in his affidavit to that effect. However, the trial court would not have abused its
discretion in disbelieving these statements.”). The record and circumstances
surrounding applicant’s plea show that a rational person would not have rejected
the plea deal and insisted on trial. Therefore, when viewing the trial court’s factual
findings and applying the above factors, we hold that applicant failed to prove
prejudice.

                                   CONCLUSION

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




                                       /s/    Ken Wise
                                              Justice



Panel consists of Justices McCally, Donovan, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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