 
 




                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00378-CR
                           ____________________



                EX PARTE LUCIANO RESENDEZ ARJONA


_______________________________________________________            ______________

                    On Appeal from the 260th District Court
                           Orange County, Texas
                        Trial Cause No. D-950411-AR
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Luciano Resendez Arjona appeals from the denial of habeas corpus relief

from a judgment of conviction ordering community supervision. See Tex. Code

Crim. Proc. Ann. art. 11.072 (West Supp. 2013). Arjona contends his guilty plea

was involuntary because trial counsel gave him erroneous advice about the

immigration consequences of his plea. We affirm the trial court’s order.

      In an appeal from the denial of the writ of habeas corpus we “must review

the record evidence in the light most favorable to the trial court’s ruling and must
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uphold that ruling absent an abuse of discretion.” Kniatt v. State, 206 S.W.3d 657,

664 (Tex. Crim. App. 2006). Matters alleged in a habeas application that are not

admitted by the State are considered denied. See Tex. Code Crim. Proc. Ann. art.

11.072, § 5(e). We must defer to the trial court’s determination of the historical

facts supported by the record. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.

Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335

(Tex. Crim. App. 2007).      When attacking the validity of his prior plea, the

applicant “bears the burden of defeating the normal presumption that recitals in the

written judgment are correct.” State v. Guerrero, 400 S.W.3d 576, 583 (Tex.

Crim. App. 2013).

      To establish a claim of ineffective assistance of counsel, the habeas corpus

applicant must show both deficient performance of trial counsel and prejudice

resulting from that deficiency sufficient to undermine confidence in the outcome of

the trial. Ex parte LaHood, 401 S.W.3d 45, 49 (Tex. Crim. App. 2013) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). Deficient performance is

shown when, considering the totality of the representation, counsel’s performance

fell below an objective standard of reasonableness under prevailing professional

norms. Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011).




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      In the context of a guilty plea, the applicant must prove by a preponderance

of the evidence that his guilty plea was involuntary. See Ex parte Morrow, 952

S.W.2d 530, 535 (Tex. Crim. App. 1997). When a person claims ineffective

assistance of counsel made his guilty plea involuntary, he must establish that there

is a reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty to the charged offense and would have insisted on going to trial. Hill v.

Lockhart, 474 U.S. 52, 58-59 (1985). “We consider the circumstances surrounding

the plea and the gravity of the misrepresentation material to that determination.”

Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999). Whether the

applicant’s reliance on counsel’s erroneous advice renders the plea vulnerable to

collateral attack depends upon “the magnitude of the error as it concerns the

consequences of the plea[.]” Id.

      The trial court denied habeas corpus relief in 2012. See Ex parte Arjona,

402 S.W.3d 312, 314 (Tex. App.—Beaumont 2013, no pet.). We vacated the trial

court’s order and remanded the case to the trial court for an evidentiary hearing.

Id. at 319-20. Arjona did not amend his pleadings, which alleged that the

conviction made him inadmissible to the United States and consequently he did not

plead guilty “knowingly (he did not know this fact), intelligently (he was not

advised by counsel of the fact that the agreement made him subject to removability

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from the United States), and voluntarily (he would not have volunteered to enter

into the agreement knowing it would lead to deportation).”

      In ruling on the habeas petition the trial court considered the court’s file, the

reporter’s record of the plea hearing, a copy of the pre-sentence investigation

report, and the evidence from the habeas hearing. An affidavit attached to Arjona’s

application for writ of habeas corpus includes a statement: “If I would have known

or been advised of the consequences of my guilty plea, I would have definitely not

[pleaded] guilty to felony possession of marijuana.” The trial court may consider

affidavits attached to the habeas corpus application or to the State’s response, even

when the court holds an evidentiary hearing. Ex parte Fassi, 388 S.W.3d 881, 887

(Tex. App.—Houston [14th Dist.] 2012, no pet.). In this case, however, nothing in

the record indicates that the trial court considered Arjona’s affidavit. Arjona did

not refer to his affidavit during the hearing. The trial court did not mention

Arjona’s affidavit during the hearing or refer to it in the trial court’s findings of

fact and conclusions of law. Arjona was personally present at the habeas corpus

hearing and an interpreter was in the courtroom, but Arjona neither testified at the

habeas hearing nor presented his affidavit for the trial court’s consideration. In its

findings of fact and conclusions of law, the trial court noted that Arjona chose not




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to testify at the writ hearing. We conclude the trial court did not consider the

affidavit attached to the habeas application.

      Arjona relied on trial counsel’s testimony to establish prejudice. During the

hearing, Arjona presented testimony that trial counsel failed to acquire information

germane to an assessment of the risk of conviction and the probability of

deportation, but he left the effect of those failures open to speculation. The crime

laboratory destroyed the marijuana in 1998. Trial counsel admitted that he failed to

inspect the marijuana or ask to have the marijuana retested when he represented

Arjona in 2008, but Arjona presented no evidence that he would have insisted on

going to trial if he had been aware that the marijuana had been destroyed. Trial

counsel admitted that he did not discuss with his client the due process

implications of the delay between his initial arrest and the plea, but Arjona neither

established that a due process claim would have succeeded nor presented any

evidence that a discussion of the due process implications of the delay in

prosecution would have affected his decision to plead guilty. Trial counsel

admitted he knew that Arjona was trying to remain in the United States but trial

counsel had “no idea” whether Arjona would not have pleaded guilty if he knew he

would be deported.




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      The trial court found that Arjona accepted the plea bargain knowing that he

could be deported for his crime. The trial court also found, as follows:

      Applicant was facing a serious charge that could well have put him in
      the penitentiary for up to 10 years and a $10,000.00 fine. Had
      Applicant rejected the plea agreement, the evidence was such that he
      would most likely have been found guilty. (two males in a pickup
      truck modified to conceal and carry drugs on the way to Florida to an
      unknown destination with only two changes of clothes). Applicant
      would not have wanted to face a jury or a judge for punishment for
      transporting 47 pounds of marijuana.

The trial court’s description of the case is consistent with the offense reports in the

presentence investigation report. Arjona argues this finding fails to account for the

destruction of the marijuana, but the trial court could reasonably have rejected an

implied suggestion that Arjona would not have been convicted if he had rejected

the plea bargain offer and gone to trial. When the contraband is lost or has been

destroyed, “it is not error to convict for possession of drugs absent the physical

presence of the drug itself, providing the drug has been analyzed and the chain of

custody explicated.” Lake v. State, 577 S.W.2d 245, 246 (Tex. Crim. App. 1979).

Arjona offered no evidence that he would have risked conviction and gone to trial

if he had been aware that the State no longer had the marijuana that had been

seized when he was arrested.

      The two components of the Strickland test need not be analyzed in any

particular order. Martinez, 330 S.W.3d at 900 n.19; see also Strickland, 466 U.S.
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at 697. Arjona failed to establish that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty to the charged offense and

would have insisted on going to trial. Hill, 474 U.S. at 58-59. We overrule the

issue presented on appeal and affirm the trial court’s judgment.

      AFFIRMED.


                                              ________________________________
                                                      CHARLES KREGER
                                                           Justice

Submitted on November 5, 2013
Opinion Delivered December 18, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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