                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-12-00343-CR

                     EX PARTE JOSE ANGEL ALVARADO



                            From the 40th District Court
                                Ellis County, Texas
                             Trial Court No. 35915-CR


                           MEMORANDUM OPINION


       Jose Alvarado pled guilty to the offense of burglary of a building and was

sentenced to 730 days in the state jail and a fine of $1,000. Alvarado's sentence was

suspended and he was placed on community supervision for three years. Alvarado

filed an application for a writ of habeas corpus pursuant to article 11.072 of the code of

criminal procedure alleging that his trial counsel was ineffective for failing to comply

with Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010), relating to the necessity of advising

him of the immigration consequences of his plea of guilty. The trial court denied his

application without a hearing. Alvarado complains that the trial court erred by denying

his application based on ineffective assistance of counsel because "it is not clear" that
Alvarado's trial counsel properly advised him of the immigration consequences of his

plea which rendered his plea involuntary. Because we find no error, we affirm the

judgment of the trial court.

Standard of Review

       An applicant for habeas corpus relief must prove his claim by a preponderance

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte

Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial

court's order denying habeas corpus relief, we view the facts in the light most favorable

to the trial court's ruling. See Kniatt, 206 S.W.3d at 664. We will uphold the trial court's

ruling absent an abuse of discretion. See id. We afford almost total deference to the trial

court's determination of the historical facts that the record supports.        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). We likewise defer to

the trial court's application of the law to the facts, if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. See id.

       To obtain habeas corpus relief on the ground of ineffective assistance of counsel,

Alvarado must show (1) counsel's performance fell below an objective standard of

reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the

result would have been different. See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,




Ex parte Alvarado                                                                     Page 2
1482, 176 L. Ed. 2d 284 (2010); Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984).

       A defendant has the right to effective assistance of counsel during plea

proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). A plea of

guilty or nolo contendere is not voluntary if it was made as a result of ineffective

assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012).

       Inaccurate advice regarding a non-citizen client's potential deportation may

constitute ineffective assistance. See Padilla, 130 S. Ct. at 1482. When the consequences

are "not succinct and straightforward," counsel's duty is to advise the defendant of the

possibility that the plea may carry a risk of adverse immigration consequences. Id. at

1483; Moussazadeh, 361 S.W.3d at 691. When, however, federal immigration law clearly

specifies that the defendant will be deported, counsel must affirmatively and correctly

advise the defendant about immigration consequences of the plea. See Padilla, 130 S. Ct.

at 1483; Moussazadeh, 361 S.W.3d at 691. If counsel fails to give the correct advice, thus

satisfying the first prong of the test, then Alvarado would satisfy the second prong by

showing that had he been aware of the immigration consequences, a decision to reject

the plea bargain offered would have been rational under the circumstances. See Padilla,

130 S. Ct. at 1485.

       The trial court is not required to conduct an evidentiary hearing before ruling on

a writ application. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b) (West 2005)


Ex parte Alvarado                                                                    Page 3
(allowing the trial court in ruling on the writ to order affidavits, depositions,

interrogatories, a hearing, or to rely upon the trial court's own personal recollection of

events). The trial court may forego a hearing and rely upon affidavits in making its

determination as it did in this proceeding. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex.

App.—Houston [14th Dist.] 2012, no pet.); Ex parte Cummins, 169 S.W.3d 752, 757 (Tex.

App.—Fort Worth 2005, no pet.). After the filing of the application and the State's

response, the trial court ordered Alvarado's trial counsel, Vance Hinds, to file an

affidavit in response to Alvarado's application, and Hinds did file a responsive

affidavit.

       In his application, Alvarado contended that Hinds never discussed any possible

immigration consequences of his plea even though Hinds knew that Alvarado was not

a citizen of the United States. Hinds stated that when he became aware that Alvarado

was a resident alien and concerned about deportation early in his representation of

Alvarado, he informed Alvarado that he could be deported if he was convicted of a

felony or certain misdemeanors. At that time, Alvarado wanted Hinds to try to get his

charge reduced to a misdemeanor. Hinds further averred that he discussed the fact that

Alvarado would be deported if he pled guilty when they met at every pretrial

proceeding and even verified the certainty of deportation with another attorney who

was familiar with immigration consequences in criminal cases. Hinds also explained

that he and Alvarado each initialed the paragraph in the written admonishments


Ex parte Alvarado                                                                   Page 4
regarding the immigration consequences required by article 26.13 of the code of

criminal procedure because Hinds wanted to ensure that the record showed that

Alvarado understood the ramifications of his plea.

       The trial court denied the application and issued written findings of fact and

conclusions of law based on the affidavits. In its findings of fact, the trial court found

that Hinds was known to the trial court and is a credible person. Further, the findings

of fact included findings that on multiple occasions Hinds informed Alvarado that he

would be deported if he pled guilty and that Alvarado understood that fact. There

were also findings that the written admonishments were initialed by Alvarado and

Hinds because Hinds wanted to ensure that Alvarado understood the immigration

consequences of his plea.     At his plea hearing, Alvarado stated that Hinds had

explained the admonishments to him and he understood them.

       Because the record supports the trial court's findings of fact that Hinds gave

Alvarado the correct advice regarding the certainty of his deportation, we cannot

conclude Alvarado met his burden to show counsel's performance fell below an

objective standard of reasonableness or that his plea advice fell outside the range of

competence demanded of attorneys in criminal cases. See Strickland, 466 U.S. at 687-88;

Harrington, 310 S.W.3d at 458. Therefore, we find that the trial court did not abuse its

discretion in denying Alvarado's habeas application. See Kniatt, 206 S.W.3d at 664. We

overrule Alvarado's sole issue.


Ex parte Alvarado                                                                   Page 5
Conclusion

       Having found no error, we affirm the judgment of the trial court.




                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 19, 2013
Do not publish
[CR25]




Ex parte Alvarado                                                          Page 6
