Opinion issued August 6, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-12-00922-CR
                           ———————————
 EX PARTE GREGORIO VASQUEZ MANDUJANO, Applicant-Appellant



         Original Proceeding on Petition for Writ of Habeas Corpus


                         MEMORANDUM OPINION

      Gregorio Vasquez Mandujano appeals from the denial of his application for

a writ of habeas corpus, contending that his plea counsel’s failure to provide

accurate immigration advice as required under Padilla v. Kentucky, 559 U.S. 356,

130 S. Ct. 1473 (2010), amounted to constitutionally ineffective assistance of

counsel in violation of the Sixth Amendment and, as a result, rendered his guilty
plea involuntary. We hold that the trial court acted within its discretion in denying

the application and affirm.

                                   Background

      Vasquez Mandujano, a citizen of Mexico, had held lawful permanent

resident status in the United States since 2006. In August 2011, Officer Mesa of

the Houston Police Department stopped Vasquez Mandujano for failure to use his

right turn signal. The officer found cocaine in the center console of the car.

Vasquez Mandujano was the driver and the sole occupant. He was charged with

the state jail felony of possession of a controlled substance, namely, cocaine, less

than one gram by aggregate weight, including any adulterants and dilutants. See

TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2009); TEX. PENAL CODE

ANN. § 12.35(a) (West 2011).

      Through counsel, Vasquez Mandujano reached a plea agreement with the

State in which he pleaded guilty in exchange for two years’ community service and

deferred adjudication. On January 6, 2012, the trial court held a plea hearing,

during which a Spanish-English interpreter assisted in translating the proceedings

for Vasquez Mandujano and the Court.

      The trial court admonished Vasquez Mandujano as follows:

      Q. Mr. Mandujano, it’s come to my attention you plan on – or your
         intent is to plead guilty to possession of a controlled substance and
         have the Court defer a finding of guilt and place you on two-year

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   probation. I want to make sure you understand, even if you are a
   lawful permanent resident here, if you plead guilty to certain types
   of offenses, the federal government can automatically deport you,
   even if it’s considered a deferred adjudication, because under the
   federal government immigration law, deferred is considered a
   conviction. Possession of a controlled substance under the federal
   immigration law is considered an aggravated felony offense and
   you become automatically deportable. I want to make sure it’s
   clear now.

   Have you had an opportunity to discuss with your attorney what
   will happen to your immigration status if you plead guilty to this
   offense?

A. If I file my papers, it can be taken away from me.

Q. No, that wasn’t my question. My question was have you had an
   opportunity to talk to your attorney about what would happen to
   your immigration status if you plead guilty to this offense? That’s
   either “yes” or “no.”

A. Yes.

Q. What is your understanding is going to happen to you if you plead
   guilty to this possession of a controlled substance as it relates to
   your immigration status?

A. If I fail or something, I could be deported.

Q. If you fail. I don’t understand what you mean.

A. For example, if I’m going to get this probation, can I be deported
   for this?

Q. That’s what I’m trying to make sure you understand. You are
   automatically deportable if you accept this probation and plead
   guilty. Once I place you on probation, the federal government can
   start deportation hearings against you. Do you understand all that?

A. Yes, I do.

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      Q. Knowing that, that you are automatically deportable once you get
         placed on this probation, . . . the federal government can start
         deportation hearings, do you still want to go forward with this plea
         of guilty or do you want to try to see if you can try the case and
         have a jury find you not guilty in hopes of avoiding this issue of
         deportation?

      A. I’d rather go to trial.

      Q. All right.

The court set the case on the trial docket.

      The parties returned to court on February 3, not for trial, but to enter the plea

agreement. The record does not contain a transcript of this plea hearing. The trial

court found that Vasquez Mandujano appeared with counsel, and the State and a

certified Spanish-English court interpreter also were present. The visiting judge

officiated the admonishments, and the parties signed the plea papers.

Subsequently, Immigrations and Customs Enforcement [ICE] apprehended

Vasquez Mandujano, placed him on an immigration hold, and instituted

deportation proceedings. ICE charged that Vasquez Mandujano was subject to

removal from the United States under section 237(a)(2)(B)(i) of the Immigration

and Nationality Act, which provides:

      Any alien (including an alien crewman) in and admitted to the United
      States shall, upon the order of the Attorney General, be removed if the
      alien is . . . convicted of a violation of (or a conspiracy or attempt to
      violate) any law or regulation of a State, the United States, or a
      foreign country relating to a controlled substance (as defined in
      section 102 of the Controlled Substances Act (21 U.S.C. § 802)),


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      other than a single offense involving possession for one’s own use of
      30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).

                                  Habeas Corpus

I.    Applicable Law and Standard of Review

      Vasquez Mandujano challenges the trial court’s denial of his application for

habeas corpus relief, contending that his plea counsel rendered ineffective

assistance under Strickland v. Washington by failing to accurately inform him that

his guilty plea would make him automatically subject to removal from the United

States. In Padilla, the Supreme Court held that the Sixth Amendment requires an

attorney for a criminal defendant to provide advice about the risk of deportation

arising from a guilty plea.    559 U.S. at ___, 130 S. Ct. at 1473.        Vasquez

Mandujano entered his plea after the United States Supreme Court decided Padilla,

so this is not a case in which retroactivity bars Padilla’s application. See Chaidez

v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1113 (2013); Ibarra v. State,

No. 01-12-00292-CR, ___ S.W.3d ___, 2013 WL 1163967, *2 (Tex. App.—

Houston [1st Dist.] Mar. 21, 2013, no pet.).

      An applicant seeking habeas corpus relief based on an involuntary guilty

plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App.2006) (citing Ex parte Morrow, 952 S.W.2d

530, 535 (Tex. Crim. App. 1997)). The applicant bears the burden to establish that

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a reasonable probability exists that, but for counsel’s advice, he would not have

pleaded guilty and would have insisted on going to trial. Ex parte Ali, 368 S.W.3d

827, 835 (Tex. App.—Austin 2012, pet. ref’d). Further, the applicant must show

that a decision to reject the plea bargain would have been rational under the

circumstances. Padilla, 559 U.S. at ___, 130 S. Ct. at 1485.

      When reviewing a trial court’s ruling on a habeas corpus application, we

view the evidence presented in the light most favorable to that ruling, and we must

uphold that ruling absent an abuse of discretion. Ali, 368 S.W.3d at 831 (citing Ex

parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on

other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)).

We give almost total deference to a trial court’s fact findings in habeas

proceedings, particularly when they are based upon an evaluation of credibility and

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

(quoting Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)); see also Ex

parte Wheeler, 203 S.W.3d 317, 324 n.23 (Tex. Crim. App. 2006) (noting that we

should also defer to trial court’s “implicit factual findings” that support trial court’s

ultimate ruling); Peterson, 117 S.W.3d at 819 (noting same). We similarly defer to

the trial court’s application of the law to the facts if that resolution turns upon

credibility and demeanor determinations. Peterson, 117 S.W.3d at 819. If the




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resolution of the ultimate question turns on an application of law, we review the

determination de novo. Id.

II.   Analysis

      Vasquez Mandujano specifically claims that his plea counsel misinformed

him that a guilty plea could make him subject to deportation, not that it would

automatically subject him to deportation. Padilla declares that, if a deportation

consequence is truly clear, such as when the client is subject to automatic

deportation, the duty to give correct advice is equally clear, and constitutionally

competent counsel must advise the client accordingly. 559 U.S. at ___, 130 S. Ct.

at 1478, 1483.

      At the habeas hearing, Vasquez Mandujano and his plea counsel disputed

the accuracy of plea counsel’s advice about the effect of a guilty plea on Vasquez

Mandujano’s immigration status. Vasquez Mandujano equivocated in his own

testimony on the issue. The record shows that the trial court expressly admonished

Vasquez Mandujano that he would become automatically deportable if he pleaded

guilty and accepted the probation, and the trial court found that, following the

admonishment, Vasquez Mandujano understood that he would be automatically

deportable if he entered a guilty plea. We defer to the trial court’s finding on this

issue, as its resolution turns on an evaluation of the witnesses’ credibility and

demeanor. See Ex parte Amezquita, 223 S.W.3d at 367.


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      With respect to the second prong of Strickland, the record supports the trial

court’s finding that Vasquez Mandujano opted for the plea agreement because he

wanted to keep his job, if possible, and did not want to risk going to jail. As a

result, the trial court acted within its discretion in concluding that Vasquez

Mandujano failed to prove that, but for any faulty advice, he would have rejected

the plea agreement and have gone to trial.

                                    Conclusion

      We affirm the trial court’s order denying habeas relief.




                                             Jane Bland
                                             Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX.R.APP. P. 47.2(b)




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