                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                '
                                                                No. 08-11-00232-CR
                                                '
 EX PARTE:                                                          Appeal from
                                                '
 MARIO ALBERTO GARCIA                                           409th District Court
                                                '
                                                              of El Paso County, Texas
                                                '

                                                '               (TC # 20090D00264)

                                          OPINION

       Mario Alberto Garcia appeals from the trial court’s order denying his first amended writ

of habeas corpus. In 2009, pursuant to a plea agreement, Appellant pled guilty to two counts of

aggravated assault with a deadly weapon, to wit: a knife. The trial court accepted his plea and, in

accordance with the State’s recommendation, sentenced him to eight years’ deferred adjudication

and placed him on community supervision. Appellant did not appeal the decision.

       In November 2010, Appellant filed a writ of habeas corpus pursuant to Texas Code of

Criminal Procedure article 11.072 in which he alleged that his trial counsel rendered ineffective

assistance. The trial court denied habeas relief. Appellant later filed a motion requesting the

court to vacate the order denying relief. That same day, Appellant also filed a first amended

application. The court granted the motion to vacate and ordered an evidentiary hearing to be
held on the first amended application. After the hearing, the trial court denied relief and filed

findings of fact and conclusions of law consistent with its decision. This appeal follows.

         In five issues, Appellant argues that the trial court erred because the evidence proved that

he was actually innocent of both counts of aggravated assault and that he was denied effective

assistance of counsel at the plea hearing.

                                            FACTUAL SUMMARY

         On December 22, 2008, Officer Almanza of the El Paso Police Department was

dispatched (along with two other officers) to Appellant’s home in response to an alleged family

violence aggravated assault. Once on the scene, Officer Almanza spoke with Lizeth Molina,1

Appellant’s wife. According to the incident report, Molina told Officer Almanza that Appellant

had threatened her with a knife. She was feeding their one-month-old infant in the living room

when Appellant arrived home in a drunken state and told her to give him the baby. Lizeth

refused.     Appellant then grabbed the baby and took it upstairs.                      Lizeth followed him and

Appellant turned around to spit at her. Once upstairs, Lizeth was able to retrieve the baby and

returned downstairs to finish the feeding. Appellant then came back downstairs, went into the

kitchen, came into the living room, grabbed the baby, and headed back upstairs. Lizeth followed

him. Once upstairs, Appellant laid the baby on the bed and the couple began to argue. Lizeth

told Officer Almanza that Appellant said he had a knife and “was in a fighting stance facing

[her] with his right hand behind his back.” Lizeth’s father heard the argument and came upstairs,

1
   There is a discrepancy in the record with respect to the spelling of Appellant’s wife Ms. Molina’s first name.
According to her own affidavit, Ms. Molina spells her first name with a “z” -- “Lizeth.” [Emphasis added].
Appellant’s applications for writ of habeas corpus also spell “Lizeth” with a “z.” However, the reporter’s record
refers to the same person as “Liseth Molina.” [Emphasis added]. In other words, the reporter’s record uses an “s” in
place of the “z” in spelling Ms. Molina's first name. Presumably, Ms. Molina correctly spelled her own name in her
affidavit, and the reporter's record contains an erroneous spelling. (This presumption is also supported by the fact
that, at the hearing, Ms. Molina was only asked to spell her last name for the record. However, regardless of which
spelling is in fact correct, we note that for purposes of this opinion, any reference to either “Lizeth” or “Liseth,” is a
reference to the same person--Ms. Molina, Appellant’s wife.


                                                          -2-
asking Appellant what he was doing and telling him not to hurt Lizeth. Appellant told his father-

in-law that it was not his problem and then lunged at him with the knife. When Lizeth grabbed

Appellant by the shirt, he dropped the knife and fled the scene. Officer Almanza’s report states

that Lizeth told him she feared for her life, the life of her children, and the life of her father.

        The incident report also details Officer Almanza’s conversation with Lizeth’s father,

Fernando Molina. He came out of his room because he heard arguing. He witnessed Appellant

leave the kitchen, grab the baby, and head upstairs. When the argument continued, Fernando ran

upstairs. He saw Appellant in a fighting stance, facing his daughter, with a knife in his right

hand. He asked Appellant what he was doing and told him not to hurt his daughter. Appellant

responded that it was none of his business and then lunged at him with the knife. When Lizeth

grabbed Appellant by the shirt, he dropped the knife and fled. According to Officer Almanza’s

report, Fernando “stated that he did fear for his life and the life of his grandchildren and [his

daughter].

                      THE WRIT APPLICATION AND THE HEARING

        In his amended application, Appellant alleged that he was actually innocent of both

counts of aggravated assault and that he had received ineffective assistance from his trial

counsel, Jeff Rago. Appellant attached his own affidavit to the writ application as well as

affidavits by Lizeth and Fernando Molina. The State filed a response along with a transcript of

the plea proceedings, a copy of the original police report, an affidavit from Rago, and various

guilty plea papers. Officer Victor Almanza, Appellant, and Lizeth testified at the hearing. A

transcript of the 911 call Lizeth made on the night of the incident was admitted into evidence.

The trial court denied habeas relief and filed findings of facts and conclusions of law:

                                        FINDINGS OF FACT

       1. On 20 January 2009, Mario Alberto Garcia was indicted for two counts of
                                                  -3-
   aggravated assault with a deadly weapon.

2. The case was assigned to the 409th District Court, El Paso County, Texas.

3. On 23 April 2009, pursuant to a plea agreement, Garcia pleaded guilty.

4. In accordance with his plea agreement, the trial court deferred entry of a
   judgment and placed Garcia on eight-years deferred adjudication.
5. In the trial court, Garcia was represented by Attorney Jeff Rago.

6. Garcia did not file an appeal in cause number 20090D00264.

7. On 8 November 2010, Garcia filed his application for a writ of habeas corpus
   under article 11.072, Texas Code of Criminal Procedure.

                           Ineffective assistance of counsel

8. Garcia advised Attorney Rago that he was not a U.S. citizen.

9. Attorney Rago discussed with Garcia the paperwork for the proposed guilty
   plea.

10. Attorney Rago advised Garcia that a plea of guilty to the charged offenses
    could result in his deportation, exclusion from admission to the U.S., and
    denial of naturalization.

11. Attorney Rago did not tell Garcia that he would not have any immigration
    problems if he pleaded guilty to the charged offenses.

12. Attorney Rago gave Garcia the opportunity to read each page of his plea
    agreement.

13. Attorney Rago explained each page of Garcia’s plea agreement to him before
    he signed each page.

14. Garcia stated that he understood each page before he signed the page.

15. The plea paperwork signed by Garcia contained an admonishment of the
    immigration consequences of a guilty plea, to include possible deportation.

16. Attorney Rago confirmed with applicant that he understood the contents of the
    plea paperwork before applicant signed the plea agreement.

17. Garcia made the decision to plead guilty in lieu of a jury trial.

18. Garcia’s assertion that Attorney Rago did not inform him that a guilty plea
    could result in his deportation, denial of naturalization and expulsion from the

                                          -4-
   United States is not credible.

19. Attorney Rago’s professional assistance pre-dated the Supreme Court decision
    in Padilla v. Kentucky.

20. Attorney Rago’s accounting of his representation of Garcia is credible.

                            Voluntariness of guilty plea

21. On 23 April 2010, this Court conducted a plea hearing in Garcia’s case.

22. Garcia did not request an interpreter or in any manner indicate that he did not
    understand the guilty-plea proceedings.

23. Garcia admitted under oath that he was aware of the charged offenses and
    applicable punishment range.

24. Garcia stated that he understood the rights he would be giving up by a plea of
    guilty.

25. Garcia declared that he had read and understood the plea-agreement paperwork
    before he signed it.

26. Attorney Rago explained the plea papers to Garcia.

27. Garcia made no assertion that he did not read or understand the admonishment
    in his plea papers advising him of the immigration consequences of his guilty
    plea.

28. Garcia stated that he was satisfied with attorney Rago’s representation.

29. Garcia informed the Court that he was not a U.S. citizen.

30. The Court informed Garcia that pleas of guilty to the charged offenses could
    result in his deportation, his exclusion from the United States, or denial of
    naturalization.

31. After being advised of the consequences of his proposed pleas of guilty, Garcia
    persisted in his desire to plead guilty.

32. Garcia stated that he had not been threatened, coerced, or promised anything to
    plead guilty.

33. Garcia stated that he was pleading guilty freely and voluntarily because he was
    guilty and for no other reason.

34. Garcia was admonished of the consequences of his guilty plea in accordance

                                        -5-
   with article 26.13(a) of the Texas Code of Criminal Procedure.

35. Garcia’s assertion that he did not understand the immigration consequences of
    his plea, to include possible deportation, is not credible.

                                Justification Defense

36. On 22 December 2007, Liseth Molina called 911 to report that her husband,
    Mario Garcia, was ‘bothering her.’

37. El Paso Police Officer Almanza responded to the 9-1-1 call.

38. Liseth Molina told Officer Almanza that Garcia had threatened her with a knife
    and that she feared for her life.

39. Fernando Molina told Officer Almanza that Garcia had threatened him with a
    knife and that he feared for his life.

40. The statements of Liseth Molina and Fernando Molina to Officer Almanza are
    credible.

41. Garcia provoked the altercation that caused his wife, Liseth Molina, to call 911.

42. Garcia’s actions directed toward his wife provoked Fernando Molina to seek to
    protect his daughter.

43. Fernando Molina reasonably believed that his intervention was immediately
    necessary to protect his daughter.

44. Neither Liseth Molina nor Fernando Molina possessed a deadly weapon or
    threatened Garcia with the use of deadly force.

45. Liseth Molina’s assertion that Garcia did not threaten her with a knife is not
    credible.

46. Fernando Molina’s assertion that he provoked Garcia’s exhibition of a knife by
    attacking Garcia is not credible.

47. Lizeth Molina’s assertion that her father provoked Garcia’s exhibition of a
    knife by attacking Garcia is not credible.

                            CONCLUSIONS OF LAW

1. Mario Garcia has failed to allege facts which, if true, would entitle him to
   relief. Ex Parte Maldonado, 988 S.W.2d 114, 116 (Tex.Crim.App. 1985).

2. Garcia failed in his burden to prove that his counsel rendered ineffective

                                        -6-
           assistance of counsel. Strickland v. Washington, 466 U.S. 68 [sic], 687, 104
           S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       3. Attorney Rago exercised professional diligence in advising Garcia that his
          proposed plea of guilty could result in his deportation, denial of admission to
          the United State, or denial of naturalization. See Strickland v. Washington,
          466 U.S. at 687.

       4. Attorney Rago’s representation complied with the dictates of Padilla v.
          Kentucky. See Padilla v. Kentucky, 559 U.S.___, 130 S.Ct. 1473, 1486, 176
          L.Ed.2d 284 (2010).

       5. Garcia’s plea papers contained admonishments regarding the immigration
          consequences of his proposed guilty plea in accordance with articles 26.13(a)
          Texas Code of Criminal Procedure.

       6. Garcia has failed his burden of showing deficient performance by his trial
          counsel, in advising him of the immigration consequences of his guilty plea.
          See Strickland v. Washington, 466 U.S. at 687.

       7. Garcia has failed his burden of showing that he was prejudiced as a result of
          any alleged deficient performance by his trial counsel. See Thompson v. State,
          9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

       8. Garcia failed to establish his entitlement to threaten the use of force under
          section 9.04 of the Texas Penal Code. See e.g, Smith v. State, No. 04-95-
          00337-CR. 1997 WL 94151 (Tex.App.--San Antonio 5 March 1997, pet.
          ref’d)(not designated for publication).

       9. Garcia’s guilty plea was made knowingly and voluntarily.           See State v.
          Jimenez, 987 S.W.2d at 888.

                                  STANDARD OF REVIEW

       An applicant seeking relief by writ of habeas corpus must prove his claim by a

preponderance of the evidence. Ex parte De Los Reyes, 350 S.W.3d 723, 728 (Tex.App.--

El Paso 2011, pet. granted), citing Ex parte Morrow, 952 S.W.2d 530, 534 (Tex.Crim.App.

1997). The decision to grant or deny an application for writ of habeas corpus rests within the

trial court’s discretion. Ex parte Ramirez, No. 08-11-00073-CR, 2012 WL 3113140, at *2

(Tex.App.--El Paso Aug. 1, 2012, no pet. h.)(not designated for publication). We view the facts

in the light most favorable to the trial court’s ruling and, absent an abuse of discretion, uphold
                                              -7-
that ruling. Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App. 2006); Kniatt v. State, 206

S.W.3d 657, 664 (Tex.Crim.App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex.App.--

Houston [1st Dist.] 2010, no pet.); Ex parte Ramirez, 2012 WL 311340 at *2; Ex parte Torres,

08-10-00330-CR, 2012 WL 1431660 (Tex.App.--El Paso Apr. 25, 2012, no pet.)(not designated

for publication). We afford almost total deference to the trial court’s determination of the

historical facts supported by the record, especially when those facts are based upon an evaluation

of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App. 2006);

Wheeler, 203 S.W.3d at 325-26; Washington, 326 S.W.3d at 704; see Ex parte Peterson, 117

S.W.3d 804, 819 (Tex.Crim.App. 2003)(per curiam), overruled on other grounds by Ex parte

Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007); Ex parte Ramirez, 2012 WL 311340 at *2; Ex

parte Torres, 2012 WL 1431660, at * 2. We also defer to the trial court’s implied factual

findings that are supported by the record. Wheeler, 203 S.W.3d at 325-26; Washington, 326

S.W.3d at 704. And we afford the same deference to the trial judge’s application of law to the

facts, if the resolution of the ultimate questions turns on an evaluation of credibility and

demeanor. Ex parte Victorio, No. 05-11-01008-CR, 2012 WL 286803, at *3 (Tex.App.--Dallas

Feb. 1, 2012, pet. ref’d), citing Ex parte Peterson, 117 S.W.3d at 819. We will only reverse a

trial court’s decision if we find it is arbitrary, unreasonable, and made without reference to

guiding rules or principles.    Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.

1990)(op. on reh’g). We will affirm a trial court’s ruling on a habeas petition if the ruling is

correct based on any legal theory before the court, regardless of whether some of the reasons

given by the court appear to be faulty. Ex parte Ramirez, 2012 WL 311340 at *2, citing Ex parte

Carpio-Cruz, 08-10-00240-CR, 2011 WL 5460848, *3 (Tex.App.--El Paso Nov. 9, 2011, no

pet.).



                                              -8-
                                    ACTUAL INNOCENCE

       In Issues One and Two, Appellant complains that he is actually innocent of the

aggravated assault charges. In his first issue, he maintains that newly discovered evidence

proves he is actually innocent of the aggravated assault charge against his father-in-law because

it establishes that he was justified in threatening the use of deadly force. And in his second issue,

he contends that based on the same new evidence -- and for substantially the same reasons as

stated in Issue One -- he affirmatively demonstrated that he is actually innocent of the aggravated

assault charge against his wife. The State counters that this evidence is neither newly discovered

nor newly available and that even if it were, it fails to demonstrate Appellant’s innocence. At

best, the State argues, the affidavits raised a credibility issue which the trial court properly

resolved against Appellant.

                                          Applicable Law

       The Court of Criminal Appeals has held that “claims of actual innocence based upon

newly discovered evidence are cognizable on post-conviction writs of habeas corpus.” Ex parte

Brown, 205 S.W.3d 538, 544 (Tex.Crim.App. 2006), citing State ex rel. Holmes v. Third Court

of Appeals, 885 S.W.2d 389, 398 (Tex.Crim.App. 1994, orig. proceeding) and Ex parte

Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). This is true regardless of whether the

applicant pled guilty or had a jury trial; an applicant can bring an actual innocence claim based

on newly discovered evidence in either situation.” Ex parte Brown, 205 S.W.3d at 544, citing Ex

parte Tuley, 109 S.W.3d 388, 393-96 (Tex.Crim.App. 2002).

       Under Texas law there are two types of actual innocence claims: (1) a Herrera claim;

and (2) a Schlup claim. See Ex parte Franklin, 72 S.W.3d 671, 675 (Tex.Crim.App. 2002),

citing Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) and Herrera v.



                                                -9-
Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).              A Herrera claim is a

“substantive claim in which applicant asserts his bare claim of innocence based solely on newly

discovered evidence.” Ex parte Franklin, 72 S.W.3d at 675. By contrast, a Schlup claim is a

procedural claim in which actual innocence does not itself provide a basis for relief but is tied to

a showing of constitutional error at trial. Ex parte Franklin, 72 S.W.3d at 675. An applicant’s

burden of proof is different based on which type of claim is asserted. Id. Appellant does not

specify which path he follows, but under either analysis, his claim is without merit.

       “Establishing a bare claim of actual innocence is a Herculean task.” Ex parte Brown, 205

S.W.3d 538, 545 (Tex.Crim.App. 2006). The applicant must show by clear and convincing

evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror

could have found the applicant guilty in light of the new evidence. Ex parte Tuley, 109 S.W.3d

388, 392 (Tex.Crim.App. 2002); see also State ex rel. Holmes v. Hon. Court of Appeals for Third

District, 885 S.W.2d 389, 399 (Tex.Crim.App. 1994)(“To be entitled to relief, however,

petitioner would at the very least be required to show that based on proffered newly discovered

evidence and the entire record before the jury that convicted him, ‘no rational trier of fact could

find proof of guilt beyond a reasonable doubt.’”).          “This showing must overcome the

presumption that the conviction is valid and it must unquestionably establish applicant’s

innocence.” Ex parte Brown, 205 S.W.3d at 545.

       Not only must the habeas applicant make a truly persuasive showing of innocence, he

must also prove that the evidence he relies upon is newly discovered or newly available. The

term “newly discovered evidence” refers to evidence that was not known to the applicant at the

time of trial and could not be known to him even with the exercise of due diligence. An

applicant cannot rely upon evidence or facts that were available at the time of his trial, plea, or



                                               - 10 -
post-trial motions, such as a motion for new trial. A claim of actual innocence is not an open

window through which an applicant may climb in and out of the courthouse to relitigate the same

claim before different judges at different times. Thus, habeas relief is not available to one who

has already litigated his claim at trial, in post-trial motions, or on direct appeal.

                                   “Newly Discovered Evidence?”

        As detailed in the factual background above, Lizeth and Fernando Molina provided

statements to the police on the night of the incident. Both victims then attested by affidavit in

direct conflict with their original statements to police. Lizeth’s affidavit states, in relevant part:

                I am married to Mario Garcia, a defendant who pled guilty in cause
        number 20090D00264, to having committed an aggravated assault against me. I
        wish to state that my husband never threatened me with the knife he was accused
        of threatening me with on or about December 22, 2008, the date this incident
        occurred. As my husband states in his writ application, I did observe him grab a
        knife and exhibit it toward my father, Fernando Molina, after my father rushed
        him in an effort to attack him. My husband’s reaction to my father’s aggressive
        behavior was completely defensive in nature. His impulsive decision to grab a
        knife was not done with the intent to hurt my father, but to repel my father’s
        attack. Once my husband displayed the kitchen knife, my father immediately
        backed away and left the living room of our apartment. My husband did not
        follow or chase my father, but simply dropped the knife and left the apartment.
        (This apartment is leased to my husband. My father, who was visiting, was not on
        the lease).

                It was apparent to me that my father was very angry toward my husband
        because of the disrespect my husband showed to me on this occasion. However,
        while my husband did not conduct himself as a gentleman, he never threatened
        me in any way or lead me to think that I was in any danger of being assaulted.
        But the fact that the argument was ugly was enough to convince my father to
        become aggressive because he did not like to see me talked to in this manner.
        Although I know my father meant well, he clearly did not have the right to initiate
        a fight with my husband in the living room of my husband’s apartment.

                I wish to further add that the knife was not pointed at me at any time,
        even though I did see the knife when it was displayed by my husband. The knife
        was at all times directed in the direction of my father, Fernando Molina. I
        never had any fear that my husband would use the knife against me, as it was
        clear that he only wanted my husband to back off.

[Emphasis added].

                                                 - 11 -
Fernando’s affidavit recited a similar version of events, contradicting his original statement to

Officer Almanza:

                I was named as a complaining witness in a case styled State of Texas v.
       Mario Garcia, filed as cause number 20090D00264. The defendant in that case,
       Mario Garcia, is my son-in-law. I remember very well the incident which led to
       my son-in-law arrest and prosecution on two aggravated assault charges. If I
       recall, the incident occurred in late December of 2008. On that date, I was at my
       son-in-law’s apartment when he and my daughter, Lizeth Molina, got into an ugly
       argument. They were yelling at each other and saying ugly things back and forth.
       My daughter was telling him to leave the apartment, but Mario refused to do so.

               At no point did I observe Mario, my son-in-law, threaten my daughter
       with physical injury. Nor did he engage in any conduct which lead me to believe
       that he intended to injure her. However, I became very upset by the disrespectful
       manner in which he was talking to my daughter. Even though Mario told me that
       their argument was none of my business, I lost my temper and decided that I was
       going to teach Mario some respect by punching him with my fists.

               I took off my sweater and began to rush him without warning. However,
       Mario anticipated the attack and grabbed a kitchen knife, which he exhibited
       for me to see. I did not know if Mario would stab me or not, but when I saw the
       knife I immediately backed off because I did not want to be stabbed. Mario made
       no attempt to chase me as I retreated into a bedroom. When I later exited the
       bedroom, I noticed that he had dropped the knife where he had been standing and
       that he had left the apartment without incident.

               I wish to further state that Mario’s decision to grab the knife was an
       instantaneous decision which resulted only when he realized that I was going to
       attack him. I feel that he was justified in grabbing the knife because I gave him
       no warning about what I was going to do. Normally, I would never do this to
       anyone, but I was just so mad about the disrespect he was showing to my daughter
       that I was not thinking straight. At no point did Mario ever point the knife at my
       daughter, Lizeth. The knife was directed only at me and to repel my attack. My
       daughter was several feet away from him.

               Mario is a good son-in-law who takes care of the two children he has with
       my daughter. I feel bad about what happened because I know that Mario should
       have never been charged with the two aggravated assault offenses which were
       filed against him. Upon reflecting on the matter, I feel that it is I was in large
       part to blame because it is I who instigated the fight which led to Mario’s need
       to defend himself.

[Emphasis added].



                                             - 12 -
       The final piece of new evidence Appellant relies upon is a recording and transcript of the

911 call Lizeth placed the night of the incident. The call begins with Lizeth telling the operator

that her husband is bothering her. The operator asks Lizeth a few questions including her

address, Appellant’s age and race, followed by the following series of questions and answers:

       Q. [by 911 operator]: What is . . . what color pants?

       A. [by Lizeth Molina]: He has a knife.

       Q. And what . . . what is he doing?

       A. [sic] No! He has a knife! Please! It’s the same . . .

       Q. What is he doing to you?

       A. [sic] Stop! Stop! (Unintelligible)

       Q. Did he hit you ma’am?

       A. No . . .

       Q. (Unintelligible)

       A. . . . but he is threatening my father with a knife.

       Q. Where is your father?

       A. Here with me.

       Q. OK. He hasn’t . . . does he still have the knife? Does he still have the knife?

       A. No. I took it away from him.

Lizeth described the knife as a “small grey one” and informed the operator that Appellant left the

premises in a black car.

                                     Application and Analysis

Even assuming that the evidence Appellant relies upon was “new,” it does not unquestionably

establish his innocence. At best it creates a conflict in the testimony which the trial court clearly

reconciled against Appellant. We thus reject Appellant’s argument that the affidavits comprise


                                                - 13 -
the only credible evidence because it ignores Officer Almanza’s testimony, the incident report,

and the 911 transcript. Based on the written findings of fact, the trial court found the statements

made by the Molinas to Officer Almanza credible and the statements in their January 2011

affidavits not credible. Because the record contains ample evidence supporting the findings, we

perceive no abuse of discretion. We overrule Issues One and Two.

                        INEFFECTIVE ASSISTANCE OF COUNSEL

        In Issues Three, Four, and Five, Appellant alleges that trial counsel rendered ineffective

assistance by failing to investigate; failing to properly advise Appellant regarding a defense to

the charges; and failing to properly advise Appellant regarding the immigration consequences of

his plea.

                                       Standard of Review

        A writ applicant who seeks habeas corpus relief based upon a claim he received

ineffective assistance of counsel must demonstrate, by a preponderance of the evidence: (1) that

his counsel’s performance was deficient; and (2) that a reasonable probability exists that, but for

counsel’s alleged errors, the result of the proceeding would have been different. See Padilla v.

Kentucky, 599 U.S. 356, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010); Strickland v.

Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); Ex

parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App. 2005).

        To establish deficient performance under the first prong, the applicant must demonstrate

that counsel’s representation fell below an objective standard of reasonableness as judged under

prevailing professional norms. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010). In

doing so, the applicant must overcome a strong presumption that counsel acted within the wide

range of reasonable professional assistance, and we will not find counsel’s performance deficient



                                              - 14 -
unless the conduct is so outrageous that no competent attorney would have engaged in it.

Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005), citing Bone v. State, 77 S.W.3d

828, 833 n.13 (Tex.Crim.App. 2002). An allegation that counsel rendered ineffective assistance

must be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

       To establish prejudice in the context of an involuntary guilty plea resulting from the

ineffective assistance of counsel, the applicant must demonstrate that there is a reasonable

probability that, but for his plea counsel’s deficient representation, he would not have pleaded

guilty but would have instead insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106

S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Ex parte Morrow, 952 S.W.2d at 536. A reasonable

probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S.Ct. 2068. The ultimate focus of our inquiry must be on the fundamental

fairness of the proceeding in which the result is being challenged. Id., 466 U.S. at 697, 104 S.Ct.

at 2070. To prevail in a habeas proceeding, the applicant must establish both elements of the

Strickland test by a preponderance of the evidence. See Ex parte Okere, 56 S.W.3d 846, 856

(Tex.App.--Fort Worth 2001, pet. ref’d).

       The right to effective assistance of counsel extends to a defendant at a guilty plea hearing.

Ex parte Martinez, 330 S.W.3d 891, 900 (Tex.Crim.App. 2011), cert. denied, 131 S.Ct. 3073

(2011); Ex parte Reedy, 282 S.W.3d 492, 500 (Tex.Crim.App. 2009). “A decision to enter a

guilty plea based upon erroneous advice from counsel is not voluntary.” Ex parte Hamad, No.

05-11-01599-CR, 2012 WL 604029, at *4 (Tex.App.--Dallas Feb. 27, 2012, no pet.), citing Ex

parte Moussazadeh, No. AP-76,439, 2012 WL 468518, at *3 (Tex.Crim.App. Feb. 15, 2012); see

Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App. 1980). The test for determining the



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validity of a plea is whether the plea represents a voluntary and intelligent choice among

alternative courses of action open to the defendant. Hill, 474 U.S. at 56, 106 S.Ct. at 369; see

also Kniatt, 206 S.W.3d at 664 (explaining that “[t]o be voluntary, a guilty plea must be the

expression of the defendant’s own free will and must not be induced by threats,

misrepresentations, or improper promises)(internal quotations omitted). “A defendant’s sworn

representation that his guilty plea is voluntary ‘constitute[s] a formidable barrier in any

subsequent collateral proceedings.’” Kniatt, 206 S.W.3d at 664 (internal quotations omitted).

       A defendant challenging the voluntariness of his plea based on ineffective assistance

bears the burden to prove that: (1) counsel’s performance fell below a reasonable standard of

competence; and (2) the defendant would, with a reasonable probability, have pled not guilty and

insisted on going to trial had counsel not committed the alleged errors. Ex parte Moody, 991

S.W.2d 856, 857-58 (Tex.Crim.App. 1999).

                                       Failure to Investigate

       In Issue Three, Appellant argues that his trial counsel rendered ineffective assistance

because he failed to conduct an independent investigation of the facts. According to Appellant,

had counsel properly investigated the facts of the case (i.e., listened to a recording of the 911 call

and/or interviewed Lizeth and her father) then counsel would have realized that the hearsay

statements in the incident report were inaccurate.

       Under the first prong of Strickland, Appellant had the burden to demonstrate, by a

preponderance of the evidence, that counsel’s conduct fell below an objective standard of

reasonableness. Here, the record includes an affidavit by trial counsel, Jeff Rago. According to

the affidavit, Rago reviewed the State’s evidence with Appellant, and Appellant did not dispute

any of the facts. Appellant’s own affidavit is silent on the issue, but Appellant denied this



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assertion at the hearing. Although the evidence is conflicting, the trial court was the sole judge

of witness credibility and specifically found that Rago’s testimony was credible while

Appellant’s was not.

       In conducting our review, we defer to the trial court’s determination. Based on these

facts, trial counsel could have reasonably concluded that it was not necessary to conduct his own

independent investigation by independently interviewing the victims. He had no reason to

believe the statements in the police report were anything but an accurate depiction of the

incident. Accordingly, Appellant failed to meet his burden under the first prong of Strickland

and therefore the trial court did not abuse its discretion in denying relief on this ground. We

overrule Issue Three.

                  Failure to Advise Appellant that his Conduct was Justifiable

       In Issue Four, Appellant complains trial counsel rendered ineffective assistance for

failing to advise him that his conduct toward his father-in-law was justifiable.

       Under applicable Texas law, Appellant would be justified in making a threat of deadly

force against his father-in-law: (1) if Appellant was justified in using force under Section 9.31 of

the Texas Penal Code; and (2) when and to the degree Appellant reasonably believed deadly

force was immediately necessary to protect himself against his father-in-law’s use or attempted

use of unlawful deadly force. See TEX.PEN.CODE ANN. § 9.32(a)(West 2011). “Reasonable

belief means a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor.” TEX.PEN.CODE ANN. § 1.07(a)(42)(West Supp. 2012)(internal

quotations omitted).

       There is no credible evidence supporting Appellant’s claim that he was justified in

threatening Lizeth or her father with a deadly weapon. Trial counsel had no duty to inform



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Appellant regarding a defense which was unsupported by the record. Since trial counsel’s

performance did not fall below an objective standard of reasonableness, we overrule Issue Four.

      Failure to Advise Appellant Regarding the Immigration Consequences of his Plea

       Finally, Appellant contends that he was denied effective assistance under both Strickland

and Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) because trial

counsel failed to properly inform his of the immigration consequences of his plea as required

under Padilla.

       In Padilla, the Supreme Court held that counsel’s representation is constitutionally

deficient if counsel fails to warn a noncitizen client of the certainty of removal when the terms of

the relevant immigration statute are “succinct, clear, and explicit” in defining the removal

consequences of a particular conviction. Padilla, 130 S.Ct. at 1483. “When the law is not

succinct and straightforward . . . 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. Before relief may be granted, the petitioner must convince the court that a

decision to reject the plea bargain would have been rational under the circumstances. Id. at

1485; see also Hill, 474 U.S. at 59, 106 S.Ct. at 370.

       Pursuant to the plea agreement, Appellant received eight years’ deferred adjudication.

Had he proceeded to trial and been convicted, he would have been subject to a sentence of not

less than two years and not more than twenty years. A guilty finding following trial would

certainly have subjected Appellant to deportation. The only evidence that Appellant would not

have pled guilty had he known about the nearly certain immigration consequences of his plea is

Appellant’s own affidavit which states in part:

       I also did not realize that my guilty plea to the two aggravated assault offenses in
       this cause resulted into aggravated felony convictions under the Immigration and

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       Nationality Act, as these guilty pleas are treated as a conviction for ‘crime
       violence’ under the I.N.A. Because I now realize there is no defense to a
       deportation or removal action when a person is convicted of an aggravated felony
       under the I.N.A., I never would have considered pleading guilty to these two
       felony offenses had attorney, Rago, explained to me the immigration
       consequences of these guilty pleas.

The trial court found that Appellant’s self-serving statements were not credible, and we must

defer to that finding. See Amezquita, 223 S.W.3d at 367 (“When the trial court’s findings of fact

in a habeas corpus proceeding are supported by the record, they should be accepted by this

Court.”).

       Appellant did not carry his burden of establishing that he suffered prejudice.

Accordingly, the trial court did not abuse its discretion by rejecting his claim for ineffective

assistance of counsel on this ground.     We overrule Issue Five and affirm the trial court’s

decision.


March 20, 2013
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




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