                          NUMBER 13-19-00253-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG


THE STATE OF TEXAS,                                                          Appellant,

                                            v.

VICTOR TORRES,                                                                Appellee.


                  On appeal from County Court at Law No. 1
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION

               Before Justices Hinojosa, Perkes, and Tijerina
                 Memorandum Opinion by Justice Perkes

       The State of Texas appeals from the trial court’s order granting appellee Victor

Torres habeas relief on his claim that his 2016 plea of “no contest” to a charge of assault

involving family violence was made involuntarily and unknowingly because he did not

appreciate the negative immigration consequences of his plea. The State contends that
the trial court abused its discretion because its ruling is not supported by the record. We

reverse and render.

                                   I.     BACKGROUND

       On August 2, 2016, Torres appeared with his appointed counsel and entered a

plea of “no contest” to a charge of assault involving family violence, a Class A

misdemeanor. See TEX. PENAL CODE ANN. § 22.01(a)(1). Torres, a Spanish-speaker who

was provided a court-appointed interpreter, was then admonished by the trial court as

follows:

       THE COURT:           All right. Are you an American citizen?

       MR. TORRES:          No.

       THE COURT:           You understand that upon entering a plea in this case
                            your status in the United States will be affected. You
                            will be deported. You will be excluded from coming
                            back to this country and denied your right to have
                            citizenship if you ever apply for one. Do you
                            understand that?

       MR. TORRES:          Yes.

       THE COURT:           Knowing this, do you still want to proceed?

       MR. TORRES:          Yes.

       THE COURT:           And I am going to find you competent and I will accept
                            the plea documents and also approve the
                            recommendation of the State, 80 days in jail, credit for
                            50 and waive all costs.

       On April 30, 2019, Torres filed an “Application for Writ of Habeas Corpus and

Motion to Vacate Plea,” contending that his plea was not made voluntarily and knowingly

because (1) his counsel was ineffective in failing to advise him of the negative immigration

consequences of his plea, and (2) the trial court failed to properly admonish him in the



                                                2
same regard. The entirety of his supporting affidavit is set out below:

              “I am presently detained at the Core Civic Webb County Detention
       Center in Laredo, Texas under U.S. Department of Homeland Security-
       I.C.E. custody.

              I was detained by ICE on April 8, 2019[,] while entering the United
       States at the Laredo Port of Entry as a lawful permanent resident alien
       (LPR) as a result of my August 2, 2016 conviction in County Court at Law
       #1 of Hidalgo County, Texas.

               I was represented by attorney Lauro B. Trejo III[,] who was court-
       appointed on February 25, 2016[,] to represent me. Mr. Trejo never called
       me in for a consultation regarding the evidence of the case or my version of
       what had happened. I did not appear in court on May 17, 2016[,] because I
       forgot and was working[,] but Mr. Trejo never called me to remind me of that
       court hearing. As a result of that, I was arrested on June 23, 2016. I
       remained in jail until August 2, 2016[,] when I was taken to court. While
       there in court, Attorney Trejo told me to plead no-contest (nolo contendere),
       that it was like pleading not guilty and I would get credit for time served and
       be released. Mr. Trejo never asked me if I was a U.S. citizen nor if I was a
       legal resident. I wanted to fight my case in court because I did not feel I was
       guilty. I am presently in deportation proceedings.”

       The trial court held a hearing on September 30, 2019. Torres, who remained in

federal custody, was not present, and neither party offered any evidence during the

hearing. The trial judge began by taking issue with Torres’s allegation that he did not

properly admonish him during the plea hearing. After Torres’s counsel acknowledged that

he did not obtain the reporter’s record from the proceeding, the court read the pertinent

portion of the transcript into the record and asked, “Now, if your statement to the Court is

that even though he was admonished he did not clearly understand, well, that is a different

story[?]” Torres’s counsel responded, “Yes. Exactly.”

       After the parties made their presentations, the trial court stated, “I am not going to

make a determination that there was a clear ineffective assistance of counsel because I

do not think so. But there is a possibility that maybe [Torres’s] understanding was



                                                 3
shortcoming with respect to the consequences.” The court went on to caution Torres’s

counsel to “do the research before you put something in writing . . . because the argument

[should have been] that even if he was admonished[,] he did not understand—I could

probably agree to that.” The trial judge then announced that he was granting the

application, and this appeal ensued.

                               II.          STANDARD OF REVIEW

       A trial court’s decision to grant or deny post-conviction habeas relief is reviewed

for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)

(citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam)). In

a proceeding under article 11.09 of the Texas Code of Criminal Procedure, the trial judge

is the sole fact finder; thus, “we afford almost total deference to a trial court’s factual

findings when they are supported by the record, especially when those findings are based

upon credibility and demeanor.” Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App.

2016) (citing State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013)); Ex Parte

Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston 2014, pet. ref’d). Moreover, “a

reviewing court will defer to the factual findings of the trial judge even when the evidence

is submitted by affidavit.” Ex parte Thompson, 153 S.W.3d 416, 425 (Tex. Crim. App.

2005) (citing Manzi v. State, 88 S.W.3d 240, 242–44 (Tex. Crim. App. 2002)). Finally, we

review the evidence presented in the light most favorable to the trial court’s ruling. Ex

parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006).

                                     III.    APPLICABLE LAW

       Due process requires that a guilty plea must be entered knowingly, intelligently,

and voluntarily. Kniatt, 206 S.W.3d at 664 (citing Boykin v. Alabama, 395 U.S. 238, 243



                                                    4
(1969)). A guilty plea is not made knowingly, intelligently, and voluntarily if defendant’s

counsel fails to adequately advise him regarding the presumptively mandatory

deportation consequences of his plea. Padilla v. Kentucky, 559 U.S. 356, 369 (2010)

(explaining that because the offenses to which appellant pleaded guilty were

automatically deportable offenses, counsel “had a duty to stress that pleading guilty to

those crimes and receiving deferred adjudication would absolutely result in appellant’s

imminent removal from the United States”); Ex parte Torres, 483 S.W.3d at 43 (“In Padilla

v. Kentucky, the Supreme Court expanded the scope of the Sixth Amendment to hold that

it requires an attorney for a non-citizen criminal defendant to provide advice about the risk

of deportation arising from a guilty plea.”). Even if counsel’s performance was

constitutionally deficient, the defendant must also demonstrate by a preponderance of the

evidence that “but for counsel’s error, he would not have pleaded guilty and would have

insisted on going to trial.” Ex parte Torres, 483 S.W.3d at 43 (quoting Hill v. Lockhart, 474

U.S. 52, 59 (1985)).

                                             IV.      ANALYSIS

       Torres states in his affidavit that his trial counsel “never asked me if I was a U.S.

citizen nor if I was a legal resident,” implying that counsel failed to adequately advise him

of the negative immigration consequences of his plea. However, the trial court specifically

found on the record that Torres did not prove his claim of ineffective assistance of counsel,

and Torres has not challenged this finding on appeal. 1

       Instead, despite its clear admonishment that “You will be deported” and Torres’s

response that “Yes” he understood and “Yes” he wanted to proceed with the plea



       1   Torres elected not to file a responsive brief. See TEX. R. APP. P. 38.2.

                                                           5
anyways, the trial court found that “there is a possibility that maybe [Torres’s]

understanding was shortcoming with respect to the consequences.” Assuming Torres

could prevail on this basis after the trial court denied his ineffective assistance claim, there

is no evidence in the record to support the trial court’s finding. See Ex parte Torres, 483

S.W.3d at 43 (explaining that “we afford almost total deference to a trial court’s factual

findings when they are supported by the record” (emphasis added) (citing Guerrero, 400

S.W.3d at 583)). Indeed, Torres’s affidavit fails to acknowledge the trial court’s

admonishments and explain why they fell short or how, contrary to his express

representations at the time, Torres failed to appreciate the negative immigration

consequences of his plea. For example, Torres did not allege that the interpreter failed to

accurately translate the court’s admonishments. See Ex parte Zantos-Cuebas, 429

S.W.3d 83, 88–92 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (finding habeas claim

was not frivolous on its face where court failed to appoint an interpreter for Spanish-

speaking defendant and defendant’s friend did not provide a full and accurate translation

of the proceeding); Aleman v. State, 957 S.W.2d 592, 593–94 (Tex. App.—El Paso 1997,

no pet.) (finding guilty plea involuntary where translation services were deficient). In other

words, without a countervailing explanation, there was no basis for the trial court to make

a credibility determination that Torres did not appreciate the consequences of his plea.

See Ex parte Torres, 483 S.W.3d at 42 (explaining that reviewing courts should give

almost total deference to a trial court’s credibility determinations (citing Guerrero, 400

S.W.3d at 583)). We also note that Torres’s writ counsel did not represent Torres at the

plea hearing and had no personal knowledge of the circumstances of the plea; therefore,

any representations he made during the writ hearing were not part of the evidentiary



                                                  6
record and could not serve as the basis for the trial court’s ruling. See Gonzales v. State,

435 S.W.3d 801, 811 (Tex. Crim. App. 2014) (“We have held that statements of an

attorney on the record may be considered evidence only if the attorney ‘is speaking from

first-hand knowledge.’” (quoting Guerrero, 400 S.W.3d at 585)).

       In short, the trial court’s ruling was based on unfounded speculation. Accordingly,

we conclude the trial court abused its discretion in granting Torres’s application. We

sustain the State’s sole issue.

                                   V.      CONCLUSION

       We reverse and render a judgment denying Torres’s application for habeas relief.

                                                               GREGORY T. PERKES
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
20th day of August, 2020.




                                                7
