Affirmed and Memorandum Opinion filed July 16, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00440-CR

                 EX PARTE VIDAL ALEXANDER REYES


          On Appeal from the County Criminal Court at Law No. 10
                           Harris County, Texas
                       Trial Court Cause No. 1946698

                 MEMORANDUM OPINION

      Appellant, Vidal Alexander Reyes, appeals the denial of his application for
writ of habeas corpus on the ground he received ineffective assistance of counsel
because plea counsel failed to advise him regarding the deportation consequences
of his guilty plea. Because we conclude that appellant failed to prove prejudice
from any deficient performance, we affirm.

                                I. BACKGROUND

      According to appellant, he is a native of El Salvador but a legal permanent
resident of the United States and has lived in this country for more than twenty-
five years. In August 2010, appellant was charged with the Class B misdemeanor
offense of possession of less than two ounces of marijuana, enhanced by a prior
felony conviction for possession of cocaine and a prior misdemeanor conviction
for possession of marijuana. In September 2010, pursuant to a plea agreement,
appellant pleaded “guilty” to the charged offense and “true” to the enhancement
allegation for the prior conviction for marijuana possession.          Appellant was
sentenced to thirty days in jail, credited with five days already served.

      Appellant asserts that he has now been ordered deported because the
conviction at issue made deportation mandatory. In February 2014, he filed an
application for writ of habeas corpus, seeking to vacate the conviction on the
ground his plea counsel was ineffective by failing to advise appellant that
deportation would be mandatory.        After a hearing, the habeas court signed a
judgment denying the application and issued written findings of fact and
conclusions of law.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

      An applicant seeking post-conviction habeas corpus relief bears the burden
to establish 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). On appellate
review, we view the facts in the light most favorable to the habeas court’s ruling
and uphold the ruling absent abuse of discretion. 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). The habeas court is the
original fact finder in a habeas proceeding. Ex parte Harrington, 310 S.W.3d 452,
457 (Tex. Crim. App. 2010). We afford almost total deference to the habeas
court’s determination of the historical facts that are supported by the record,
especially when the factual findings are based on an evaluation of witness

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credibility and demeanor. Peterson, 117 S.W.3d at 819. We afford the same
deference to the habeas court’s application of law to the facts if the resolution of
the ultimate questions turns on an evaluation of credibility and demeanor. Id. If
resolution of the ultimate questions turns on application of legal standards, we
review the decision de novo. See id.

      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
not knowing or voluntary if 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 when a habeas applicant challenges a guilty plea
based on ineffective assistance of counsel. Ex Parte Luna, 401 S.W.3d 329, 333
(Tex. App.—Houston [14th Dist.] 2013, no pet.). The applicant must show by a
preponderance of the evidence that (1) plea counsel’s performance fell below the
objective standard of reasonableness, and (2) there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); see
Luna, 401 S.W.3d at 333.

      In Padilla v. Kentucky (decided six months before appellant’s guilty plea),
the Supreme Court of the United States held that counsel must inform his client
whether his plea carries a risk of deportation.       559 U.S. 356, 374 (2010).
Counsel’s performance is deficient under the first Strickland prong if counsel fails
to advise a noncitizen client about deportation consequences that are “truly clear.”
Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (citing Padilla, 559 U.S. at 368–69; Aguilar v. State, 375 S.W.3d 518, 524
(Tex. App.—Houston [14th Dist.] 2012), rev’d on other grounds, 393 S.W.3d 787

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(Tex. Crim. App. 2013)). Thus, plea counsel is deficient if he merely mentions the
possibility of deportation when the relevant immigration provisions are
presumptively mandatory. Id. (citing Aguilar, 375 S.W.3d at 524). However, a
defendant complaining that plea counsel failed to advise him of such deportation
consequences must also satisfy the second Strickland prong by proving prejudice.
See Strickland, 466 U.S. at 697; Luna, 401 S.W.3d at 333.

                                      III. ANALYSIS

       In four issues, appellant contends the habeas court erred by denying
appellant’s application. To summarize its findings of fact and conclusions of law,
the court denied the application because appellant failed to establish (1) counsel’s
performance was deficient, or (2) appellant was prejudiced. In his first two issues,
appellant challenges the finding that he failed to prove deficient performance. In
his next two issues, he challenges the finding that he failed to establish prejudice.

       We need not decide whether appellant established plea counsel’s
performance was deficient because we may uphold the habeas court’s ruling on the
ground that appellant failed to prove prejudice. See Strickland, 466 U.S. at 697; Ex
parte Murillo, 389 S.W.3d 922, 927 (Tex. App.—Houston [14th Dist.] 2013, no
pet), abrogated on other grounds by Chaidez v. United States, 568 U.S. ––, 133
S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013); Ex parte De Los Reyes, 392 S.W.3d
675, 678–79 (Tex. Crim. App. 2013). We will assume solely for purposes of the
prejudice analysis that deportation was mandatory for the reasons advanced by
appellant and plea counsel failed to advise appellant of that consequence.1


       1
         The crux of appellant’s complaint regarding deficient performance is that Carachuri-
Rosendo v. Holder, 560 U.S. 563 (2010), decided two months before his plea, established that
the present misdemeanor conviction would be treated as an aggravated felony for immigration
purposes due to the enhancement by either previous conviction. According to appellant, that
status means deportation is mandatory and he may not pursue “cancellation” by presenting
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       Under the prejudice prong, the applicant must show there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); Harrington, 310 S.W.3d at 458. This standard requires the applicant to
demonstrate that a decision to reject the plea agreement would have been rational
under the circumstances. See Padilla, 559 U.S. at 372; Fassi, 388 S.W.3d at 886–
87. The test is objective, turning “‘on what a reasonable person in the defendant’s
shoes would do.’” Fassi, 388 S.W.3d at 887 (quoting United States v. Smith, 844
F.2d 203, 209 (5th Cir. 1988) (per curiam)). The inquiry is made on a case-by-case
basis, considering the circumstances surrounding the plea and the gravity of the
alleged failure.     Murillo, 389 S.W.3d at 928; Fassi, 388 S.W.3d at 887–88.
Consistent with the abuse-of-discretion standard of review, we give deference to
the habeas court’s underlying historical fact determinations, but the ultimate
question of prejudice under Strickland is reviewed de novo. Fassi, 388 S.W.3d at
887.

       Our court has identified several factors to consider when reviewing a trial
court’s determination that a defendant would have pleaded guilty even if he had
been properly advised of the immigration consequences: (1) the strength of the
State’s evidence of the defendant’s guilt; (2) whether he had any factual or legal
defenses to the charged offense; (3) whether the record reveals that his
immigration status was his primary concern, as opposed to other concerns such as
fear of incarceration or a desire for the case to simply be over; and (4) the benefits



mitigating circumstances. Appellant asserts counsel should have been aware of the import of
Carachuri but failed to advise appellant that deportation is mandatory. The trial court’s findings
and conclusions suggest it determined deportation was not necessarily mandatory or the law, if
any, mandating deportation was not “readily discernible” to counsel at the time of appellant’s
plea.

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of the plea bargain compared to the penalties risked if he had opted to proceed to
trial. Murillo, 389 S.W.3d at 928–31.

      Initially, we note appellant testified he would have “fought” the case if he
had been advised of the immigration consequences of his plea because he was
innocent, had a steady job, and had long-term custody of his children. However,
the habeas court found appellant’s “testimony that he would not have plead [sic]
guilty and would have proceeded to trial had he been admonished that he would be
deported rather than that he may be deported was not credible.” The habeas court,
as judge of witness credibility, “was free to disbelieve appellant’s self-serving
testimony” that he would have proceeded to trial had he been properly advised of
the immigration consequences of the plea. See Fassi, 388 S.W.3d at 888. Instead,
the habeas court found appellant’s motivation in pleading guilty “was to get out of
jail, and that he would have made that decision regardless of any admonishment of
immigration consequences.”      Applying the above-cited factors, the evidence
supports the habeas court’s conclusion, and appellant has not demonstrated it
would have been rational to reject the plea agreement and proceed to trial.

A.    Strength of the State’s case and whether appellant had any defenses

      We will consider these factors together because they are interrelated in this
case. The evidence reflects the State had a strong case. To establish unlawful
possession of a controlled substance, the State must prove that the defendant (1)
exercised actual care, control, or custody over the substance, and (2) knew the
matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.
Crim. App. 2005). At the habeas hearing, appellant acknowledged the following
underlying facts: he was stopped by the police for a traffic offense while driving
his car; and when the police asked if there was anything in the car they should
know about, appellant replied that there was marijuana in the passenger door. This

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testimony established appellant knew the marijuana was present, knew the nature
of the substance, and, as driver, had control over the marijuana. Appellant’s plea
counsel, whom the habeas court expressly found to be credible, had forty years of
criminal-law experience at the time of the habeas hearing and testified the State
had a strong case against appellant.

      At the hearing, appellant claimed he was innocent because he had just
bought the car from a friend who left the marijuana inside. Although the habeas
court found appellant was not credible regarding his claim he would have
proceeded to trial, the court found appellant was credible relative to the facts of the
underlying offense. However, even if appellant was truthful regarding his friend
leaving the marijuana in the car, the evidence reflects that fact would not have
provided an effective defense. Specifically, appellant admitted that the friend had
called earlier in the day asking about the marijuana. This admission demonstrates
appellant drove the car knowing the marijuana was present. Although appellant
claimed his friend owned the marijuana, appellant also admitted he was not
charged with “ownership” but rather “possession” and that he had possession of
the marijuana.

      Additionally, even if appellant was truthful regarding his friend leaving the
marijuana in the car, the record contains evidence that appellant’s primary
motivation was getting out of jail as opposed to defending the case. Appellant
claimed he asked plea counsel to contact the friend to acknowledge owning the
marijuana. However, plea counsel testified that (1) appellant did not tell counsel
he was innocent or request further investigation, (2) if appellant had said he was
innocent, counsel would have reset the plea hearing and attempted to persuade the
owner of the marijuana to appear, and (3) getting out of jail was appellant’s
primary concern, and the plea resulted in the minimum sentence. Again, the trial

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court was free to believe counsel instead of appellant with respect to this
conflicting testimony. On cross-examination, appellant admitted he took the plea
to “get out” of jail, and the trial court found that testimony was credible.

      Accordingly, these two factors weigh against a finding of prejudice by
showing appellant faced a substantial likelihood of conviction if he had proceeded
to trial and did not insist that he had any defenses to pursue.

B.    Whether immigration status was appellant’s primary concern

      At the habeas hearing, appellant attempted to characterize the immigration
consequences of the plea as his primary concern. However, there is no evidence
that before entering the plea, appellant expressed to anyone that deportation
consequences were a concern. Moreover, before entering the plea, appellant
signed a form acknowledging, inter alia: “if I am not a citizen of the United States
my plea of guilty/nolo contendere may result in my deportation, exclusion from
admission to this country, or denial of naturalization under federal law . . . .” Plea
counsel testified that (1) he went over the form with appellant, (2) the particular
trial judge who took the plea always gave admonishments there may be
immigration consequences, (3) counsel would have requested a reset if appellant
had asked to consult with an immigration attorney, and (4) appellant did not do so
because again getting out of jail was his primary concern. We do not hold that the
form, counsel’s explanation thereof, or trial court admonishments sufficed as
advice from counsel that deportation is mandatory with respect to the first
Strickland prong. But, pertinent to the prejudice prong, that evidence at least
indicates appellant knew there may be immigration consequences of the plea yet he
was more concerned with avoiding a lengthier jail term.

      Finally, at the habeas hearing, appellant acknowledged he was advised by
counsel and the trial court regarding immigration consequences when he pleaded
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guilty to four of his prior separate offenses—three for possession of marijuana and
one for assault on a family member—yet he chose to enter those pleas because he
wanted to get out of jail and provide for his family.2 Again, we do not hold that
such advice or admonishments sufficed as the requisite advice by counsel
concerning the present plea. However, appellant’s previous decisions are again
relevant to the prejudice prong by reinforcing that appellant has consistently placed
staying out of jail as paramount to the immigration consequences of his pleas.

C.     Consequences of plea versus risks of proceeding to trial

       This factor also supports that appellant would not have risked a trial even if
he had known of the immigration consequences of the plea. Based on either
enhancement allegation (possession of cocaine or possession of marijuana),
appellant’s punishment range for the present offense was a minimum of 30 days
and a maximum of 180 days in jail, plus a fine not to exceed $2,000. See Tex.
Penal Code Ann. §§ 12.22, 12.43(b) (West 2011). Due to the plea bargain and
credit for time served, appellant was released from jail in less than thirty days. 3 It
is a rational inference that, if appellant had proceeded to trial, he bore a significant
risk of receiving the maximum punishment because of his multiple prior
convictions for drug possession. See Delgado v. State, 235 S.W.3d 244, 252 (Tex.
Crim. App. 2007) (citing Tex. Code Crim. Proc. art. 37.07, § 3(a)(1), when stating
that, during punishment phase, defendant’s prior criminal record may be offered
for any relevant purpose, including proof of his character or propensity).
Appellant’s allegation that deportation is mandatory because of his guilty plea
       2
        Appellant had more prior convictions than the two that were the basis for the
enhancement paragraphs in the present case.
       3
           The judgment shows appellant received credit for five days served. Plea counsel
testified the plea bargain included a “two-for-one” credit for those five days, but his testimony is
not exactly clear on how many days were credited. Regardless, the total served was less than
thirty days.

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would be equally applicable if he had been convicted after a trial. Consequently, if
appellant had proceeded to trial, there would have been a substantial likelihood of
a longer jail term than he actually served, plus deportation.

      In summary, all of the relevant factors weigh in favor of the trial court’s
conclusion that appellant would have pleaded guilty even if he had known that
such plea would result in mandatory deportation. See Fassi, 388 S.W.3d at 887–90
(upholding habeas court’s finding of no prejudice from any failure of counsel to
advise defendant regarding deportation consequences of guilty plea for marijuana
possession resulting in deferred adjudication where he faced certain conviction,
confinement for six months, and same deportation consequences if he had
proceeded to trial, and there was no evidence he ever expressed concern about
immigration consequences before entering his plea). Because appellant failed to
establish prejudice from any deficient performance of plea counsel, the trial court
did not err by denying the habeas application.            Accordingly, we overrule
appellant’s third and fourth issues and need not consider his first two issues.

      We affirm the habeas court’s judgment.



                                        /s/    John Donovan
                                               Justice


Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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