Affirm and Opinion Filed October 16, 2013




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-00856-CR

                             EX PARTE ALEJANDRO TOVAR

                     On Appeal from the County Criminal Court No. 11
                                  Dallas County, Texas
                           Trial Court Cause No. MC13-A1095

                             MEMORANDUM OPINION
                         Before Justices FitzGerald, Francis, and Myers
                                  Opinion by Justice Francis
       Alejandro Tovar pleaded no contest to assault involving family violence. On March 13,

2008, the trial court found appellant guilty, sentenced him to confinement in jail for 150 days,

probated that for twelve months, and assessed a $400 fine. On June 24, 2009, the trial court

extended appellant’s supervision by twelve months. Appellant was discharged from supervision

in 2010. On January 28, 2013, appellant filed an article 11.072 application for writ of habeas

corpus challenging the voluntariness of his plea. The trial court denied appellant the relief

sought and this appeal followed. Appellant, who is representing himself, did not file a brief.

Therefore, we will review the trial court’s ruling based on the issues presented in the habeas

corpus application. See TEX. R. APP. P. 31.1. We affirm the trial court’s order.

       At the hearing on appellant’s application for writ of habeas corpus, appellant testified he

was represented by Bruce Mantyla during the plea proceeding. Appellant did not “realize” the

offense was a deportable offense, and he is currently in “removal” status. Appellant testified his
attorney asked if appellant wanted to plead guilty or not guilty, and appellant responded he did

not want to “plead either.” Therefore, appellant circled “nolo contendere” on the form and he

was told he would get “some more time added” to his probation. Appellant testified his attorney

did not tell him that by pleading not guilty, he would ask for a trial. Appellant testified he did

not know he was giving up his right to contest the charge against him. Appellant further testified

that he received some papers, but did not have a chance to read them because “everybody was in

a hurry that day.” Appellant was discharged from supervision in 2010.

       Appellant’s trial counsel Bruce Mantyla testified that he has practiced criminal law in

Texas for sixteen years. He did not personally remember appellant’s case, but reviewed the file

and testified as to his standard procedure for handling cases. Counsel testified he would go over

the information and probable cause affidavit with a client. If the defendant did not understand

English, counsel would translate for them. Counsel would explain the punishment range and the

defendant’s options. Additionally, counsel would relay any information he had from the district

attorney regarding a sentencing recommendation. Counsel further stated that he and appellant

discussed whether appellant was in the United States legally and he discussed both probation and

immigration consequences with appellant. At the conclusion of the hearing, the trial court

denied appellant relief.

        In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view

 the facts in the light most favorable to the trial judge’s ruling.     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 will uphold the trial court’s ruling

 absent an abuse of discretion. Id. In conducting our review, we afford almost total

 deference to the judge’s determination of the historical facts that are supported by the

 record, especially when the fact findings are based on an evaluation of credibility and

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demeanor. Id. We afford the same amount of deference to the trial judge’s application of

the law to the facts, if the resolution of the ultimate question turns on an evaluation of

credibility and demeanor.     Id.   If the resolution of the ultimate question turns on an

application of legal standards, we review the determination de novo. Id.

        To prevail on an ineffective assistance of counsel claim, an appellant must meet the two-

pronged test set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas

Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The appellant must show both that

counsel’s representation fell below an objective standard of reasonableness and the deficient

performance prejudiced the defense. See id. at 142. In the context of a guilty plea, to demonstrate

prejudice the appellant must show that but for counsel’s deficient performance, he would not have

pleaded guilty and would have insisted on going to trial. See Ex parte Imoudu, 284 S.W.3d 866,

869 (Tex. Crim. App. 2009) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)).

        In Padilla v. Kentucky, the United States Supreme Court held that the Sixth

Amendment to the United States Constitution requires defense attorneys to inform non-

citizen clients of the deportation risks of guilty pleas. Chaidez v. United States, 133 S.

C t. 1103, 1105 (2013); Padilla, 559 U.S. 356, 374 (2010). However, in Chaidez, the Court

held that Padilla did not apply retroactively to defendants whose convictions became final

prior to Padilla. Chaidez, 133 S. Ct. at 1113. The Texas Court of Criminal Appeals adhered

to the retroactivity analysis in Chaidez as a matter of state habeas corpus law, and held

that Padilla does not apply retroactively to defendants whose convictions became final prior

to Padilla. Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).

       In his habeas corpus application appellant raised the following claims of ineffective

assistance of counsel: (1) he was not informed the consequences of a conviction or receiving

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community supervision for the offense of assault involving family violence would result in

deportation; (2) trial counsel did not investigate defenses to the accusations that would have

resulted in acquittal; (3) trial counsel misinformed appellant that appellant could only sign the

plea documents without question and to answer “yes” to all of the judge’s questions during the

plea; (4) appellant’s Fifth Amendment privilege against self-incrimination was waived without

his knowledge or consent in that he was coerced to confess to the allegations because trial

counsel told him he must sign the judicial confession and orally admit guilt if he did not want to

go to jail.

           Appellant received community supervision on March 13, 2008. He did not appeal at that

time, so he was not eligible to file a petition for writ of certiorari. See Ex parte De Los Reyes,

392 S.W.3d at 676 (citing SUP. CT. R. 13 (allowing for petition for writ of certiorari if defendant

is appealing refusal of state court of last resort to hear his case or is affirming conviction)).

Therefore, his conviction became final on April 30, 2008, the day after the last day appellant

could have filed his notice of appeal.1 See Ex parte De Los Reyes, 392 S.W.3d at 676. Because

appellant’s conviction was final before Padilla issued in 2010, appellant may not benefit from

Padilla’s holding. See Chaidez, 133 S. Ct. at 1113; Ex parte De Los Reyes, 392 S.W.3d at 679.

Therefore, we conclude the trial court did not abuse its discretion in denying appellant habeas

corpus relief on his claim regarding deportation admonishments.

           As to his claims that trial counsel did not investigate defenses to the accusations that

would have resulted in acquittal and that counsel misinformed him about how to answer the trial

judge’s questions and coerced him into waiving his rights in the plea proceedings, appellant

presented no evidence to support those claims. Although appellant testified that the hearing was

     1
        Appellant’s notice of appeal was due by Monday, April 14, 2008. See TEX. R. APP. P. 4.1(a), 26.2(a)(1). To obtain the benefit of the
fifteen-day extension of time, appellant’s notice of appeal and an extension motion had to be filed by April 29, 2008. See TEX. R. APP. P. 4.1(a),
26.3.



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rushed, he did not have a chance to read all of the paperwork, and he was not aware that if he

pleaded not guilty he would have a trial, his primary focus at the hearing was on the deportation

consequences issue. Counsel testified his procedure was to review the information and probable

cause affidavit with a defendant, and the record contains documents to that effect.

       The trial court resolved the conflicts in the evidence against appellant, and we defer to the

trial court’s resolution of the conflicts. See Ex parte Peterson, 117 S.W.3d at 819. Having

reviewed the record before the Court, we conclude the trial court did not abuse its discretion in

denying appellant habeas corpus relief on these grounds.

       We affirm the trial court’s order denying appellant the relief sought by his application for

writ of habeas corpus.


                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47
130856F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

EX PARTE ALEJANDRO TOVAR                           On Appeal from the County Criminal Court
                                                   No. 11, Dallas County, Texas
No. 05-13-00856-CR                                 Trial Court Cause No. MC13-A1095.
                                                   Opinion delivered by Justice Francis,
                                                   Justices FitzGerald and Myers participating.


       Based on the Court’s opinion of this date, we AFFIRM the trial court’s order denying
appellant the relief sought by his application for writ of habeas corpus.


Judgment entered October 16, 2013




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




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