                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00038-CR


EX PARTE MICHAEL OWENGA




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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
             TRIAL COURT NO. C-2-009711-1200172-AP

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                        MEMORANDUM OPINION1

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                                   I. Introduction

      Pro se appellant Michael Owenga appeals the denial of his article 11.072

application for writ of habeas corpus. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                   II. Discussion

      Owenga pleaded guilty to evading arrest in exchange for four years’

deferred adjudication community supervision and then filed a verified application

for writ of habeas corpus. We did not request additional briefing in this case, see

Tex. R. App. P. 31.1, and will review whether the habeas court abused its

discretion by denying Owenga’s application based on the grounds he presented

in his application: actual innocence, ineffective assistance of counsel based on

the immigration consequences of his guilty plea, and ineffective assistance of

counsel based on counsel’s failure to inform him of his Vienna Convention rights

or to challenge a violation of them.

A. Standard of Review and Applicable Law

      In an article 11.072 appeal, absent an abuse of discretion, we must affirm

the trial court’s decision to grant or deny the relief requested in a habeas

application. See Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth

2011, pet. ref’d) (op. on reh’g).      We review the evidence in the light most

favorable to the trial court’s ruling and afford great deference to its findings of fact

and conclusions of law that are supported by the record, even when the findings

are based on affidavits rather than live testimony. Id. Reviewing courts should

also grant deference to implicit factual findings that support the trial court’s

ultimate ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003),

overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App.

2007). To the extent that the resolution of the ultimate question turns on an


                                           2
evaluation of credibility and demeanor, we also afford great deference to the trial

court’s application of the law to the facts. Mello, 355 S.W.3d at 832. However, if

the resolution of the ultimate question turns on an application of legal standards,

we review the determination de novo. Id.; see also Peterson, 117 S.W.3d at 819.

      The test for determining the validity of a plea is whether it represents a

voluntary and intelligent choice among alternative courses of action open to the

defendant.   Ex parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—Fort Worth

2009, pet. ref’d). In a post conviction habeas proceeding in which the applicant

claims that his guilty plea was involuntary, the applicant must prove the claim by

a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App.), cert. denied, 549 U.S. 1052 (2006). And to be entitled to habeas

relief based on ineffective assistance of counsel, a defendant must prove by a

preponderance of the evidence that counsel’s performance was deficient and

that he was prejudiced as a result. Ex parte Leal, 427 S.W.3d 455, 459 (Tex.

App.—San Antonio 2014, no pet.) (citing Badillo v. State, 255 S.W.3d 125, 132

(Tex. App.—San Antonio 2008, no pet.)).

      To establish deficient performance, a defendant must show that counsel’s

performance fell below an objective standard of reasonableness based on

prevailing professional norms, and to establish prejudice, a defendant must show

that there is a reasonable probability that, but for counsel’s deficiency, he would

not have entered a plea and would have gone to trial.      Id. (citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hill v. Lockhart,


                                        3
474 U.S. 52, 59, 106 S. Ct. 366, 370–71 (1985)). To meet his burden under the

second prong, the applicant must convince the court that a decision to reject the

plea bargain would have been rational under the circumstances, but he need not

show he would have received a more favorable outcome at trial. See Padilla v.

Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485 (2010); Johnson v. State,

169 S.W.3d 223, 231 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1181 (2006).

      With regard to advice about the immigration consequences of a plea, the

nature of the advice to be given is dependent on the certainty of the applicable

immigration law. Padilla, 559 U.S. at 369, 130 S. Ct. at 1483. That is, when the

relevant immigration law is “not succinct and straightforward” as to whether a

plea will result in deportation, “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. But when the deportation consequence is

truly clear, as it was in [Padilla’s] case, the duty to give correct advice is equally

clear.”2 Id., 130 S. Ct. at 1483. When federal immigration law clearly specifies

that the defendant will be deported, and counsel fails to give the correct advice,

this satisfies Strickland’s first prong. See Ex parte Gutierrez, No. 05-14-00264-

CR, 2014 WL 2611145, at *4 (Tex. App.—Dallas June 11, 2014, no pet. h.)

      2
        Padilla pleaded guilty to transporting a quantity of marijuana “that made
his deportation virtually mandatory” after relying on his counsel’s advice that he
did not have to worry because he had been in the country for more than forty
years. 559 U.S. at 359 & n.1, 130 S. Ct. at 1477–78 & n.1 (“Padilla’s crime, like
virtually every drug offense except for only the most insignificant marijuana
offenses, is a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i).”).


                                          4
(mem. op., not designated for publication) (explaining the application of Padilla).

The applicant satisfies the second prong by showing that had he been aware of

the immigration consequences, the decision to reject the plea and proceed to trial

would have been rational under the circumstances. Id.

B. Background

      In July 2010, Owenga pleaded guilty to evading arrest or detention using a

vehicle in exchange for four years’ deferred adjudication community supervision.

In August 2012, he filed his habeas application.3

      In the affidavit that he attached to his application, Owenga stated that he

had told his counsel, Stuart R. Oliphint, that he was not a United States citizen

but that he was “legal” and that his primary concerns were to avoid losing his

ability to become a citizen and to avoid deportation. Owenga stated that Oliphint

was aware that he had a prior misdemeanor conviction and asked Owenga to tell

him more about it; that Owenga asked Oliphint more than once about whether he

could be deported for pleading guilty in exchange for deferred adjudication; and

that Oliphint told him that deferred adjudication was not a conviction, that he

would not receive jail time, and that, therefore, he would not be deported.

Owenga stated, “Being confident that my counsel had investigated and chosen a

plea that had my primary (immigration consequences) and secondary (jail time

      3
        In his application, Owenga asserted that the Department of Homeland
Security (DHS) had alleged that he was deportable under 8 U.S.C.
§ 1227(a)(2)(A)(ii) and that the Board of Immigration Appeals (BIA) had issued a
final order of removal on June 28, 2011.


                                        5
and my criminal background record) interests at heart. I proceeded to accepting

the guilty plea.” Owenga stated that if he had been properly advised about the

immigration consequences, he would not have accepted the plea and would

have gone to trial.

      Owenga did not indicate in his affidavit which offense had resulted in his

prior conviction, whether it was for a crime involving moral turpitude, whether his

evading arrest or detention offense was a crime involving moral turpitude

(although he stated in his verified application that the evading arrest offense “was

a second offense involving moral turpitude”), or whether he had informed Oliphint

of the nature of his prior conviction for Oliphint to determine whether it was for a

crime involving moral turpitude.

      The trial court ordered Oliphint to file an affidavit. In his affidavit, Oliphint

stated that he had been appointed in July 2010 to represent Owenga on the state

jail felony charge of evading arrest or detention by vehicle, which is punishable

by 180 days to two years in state jail and up to a $10,000 fine. He reviewed the

offense report and then interviewed Owenga in a holdover cell because Owenga

had violated his bond “and had been in custody for some time.”

      Oliphint stated that he had explained Owenga’s options to him—pass the

case to further investigate it, entertain a plea offer from the State, or proceed to

jury trial—and that the decision was up to Owenga. Oliphint averred that he had

never advised a client to choose one option over another or to accept a plea

deal, that Owenga’s main concern was being released from custody so that he


                                          6
could return to his employment and support his family, that Owenga asked

Oliphint to negotiate with the State for the best possible plea offer, and that

Owenga seemed primarily concerned about taking a plea so that he would be

released from custody that day.        Oliphint did not mention anything about

Owenga’s alleged prior misdemeanor conviction in his affidavit.

      Oliphint stated that he had told Owenga that deferred adjudication is a

“double-edged sword” and that if Owenga followed its terms, his case could be

dismissed, but if he violated it, he could receive the full range of punishment.

Oliphint explained to Owenga the citizenship warning on the plea form and told

Owenga “that no one could guarantee anything regarding his immigration status.”

Oliphint further elaborated, “I explained to him that any plea of guilty could cause

him to be deported if he were not a legal citizen. I told him that the immigration

laws are constantly changing, and no one could tell him the exact effect of a

guilty plea on his immigration status.” Oliphint stated that the trial court also

clearly admonished Owenga regarding his immigration status and reiterated that

no one could tell him what effect his guilty plea would have but that it could be

used against him in deportation proceedings and that Owenga nonetheless said

that he understood but insisted on accepting the plea agreement.

      The trial court adopted the State’s proposed memorandum, findings of fact,

and conclusions of law and denied Owenga’s application. It found that Oliphint

was well-qualified to represent Owenga in the case; that Oliphint had reviewed

the contents of the offense reports from the Grand Prairie police and Red Oak


                                         7
police4 and had advised Owenga that he had the options of entering a plea

agreement or proceeding to trial but did not advise one option over the other; that

Owenga was most concerned about being released from custody so that he

could return to work and his family and directed Oliphint to negotiate a plea

agreement; that Oliphint explained to Owenga that by accepted the State’s plea

offer, he would be waiving his right to trial, to confront witnesses, and to appeal,

that no one could guarantee anything regarding his immigration status, and that

any guilty plea could cause him to be deported if he were not a citizen; and that

Owenga chose to accept the plea offer.

      It also found that Owenga had been fully admonished about the waiver of

his rights and the consequences of his plea, that the trial court had explained to

Owenga that his guilty plea could result in his deportation, and that Owenga had

informed the trial court that he         understood the potential deportation

consequences and still insisted on accepting the plea agreement. And it found

that Oliphint had fully advised Owenga regarding his guilty plea, including the

immigration consequences; that Owenga presented no evidence and that there

was no evidence that he would have rationally rejected the State’s plea offer and

      4
       The trial court found that after a motorcycle was reported stolen on April
28, 2010, the Red Oak police entered the motorcycle’s VIN and license numbers
into the NCIC/TCIC database as stolen, that on May 16, 2010, Grand Prairie
Police Officer Scroggin saw Owenga, who was riding the stolen motorcycle,
commit four traffic violations. When Officer Scroggin attempted to pull over
Owenga, Owenga fled, forcing Officer Scroggin to pursue him in excess of 100
mph for about seven miles; the officer learned during the pursuit that the
motorcycle was stolen.


                                         8
proceeded to trial; that Owenga presented no evidence and that there was no

evidence suggesting that any lack of consulate notification affected Owenga’s

plea decision; and that Owenga’s guilty plea was freely, knowingly, and

voluntarily entered.

      In its conclusions of law, the trial court stated that both Oliphint and the trial

court had fully advised Owenga of the risk of deportation, that Owenga had been

made aware that a guilty plea could result in deportation and the denial of

citizenship, that Oliphint had fully advised Owenga regarding his guilty plea and

had provided him with adequate representation guaranteed by the Sixth

Amendment, and that there was no evidence suggesting that Owenga would

have rationally rejected the State’s plea offer and proceeded to trial. The trial

court also concluded that because the Vienna Convention did not create an

individually enforceable right and because there existed no evidence to suggest

that any lack of consular notification affected Owenga’s plea decision, Owenga

did not receive ineffective assistance of counsel on that ground. The trial court

did not mention Owenga’s alleged prior conviction in its findings or conclusions.

C. Immigration Consequences

      In his application, Owenga complained that Oliphint relied on Texas law

instead of also investigating federal law, which “controls the interpretation of [8

U.S.C.] § 1101.”       Relying on Padilla, he argued that the deportation

consequences of his plea were clear and would have been easily discovered “by




                                          9
simply looking at the statute.” One of the definitions in § 1101 is “conviction,”

which means,

      with respect to an alien, a formal judgment of guilt of the alien
      entered by a court or, if adjudication of guilt has been withheld,
      where (i) a judge or jury has found the alien guilty or the alien has
      entered a plea of guilty or nolo contendere or has admitted sufficient
      facts to warrant a finding of guilt, and (ii) the judge has ordered some
      form of punishment, penalty, or restraint on the alien’s liberty to be
      imposed.[5]

8 U.S.C.A. § 1101(a)(48)(A) (West 2005); Miresles-Zuniga v. Holder, 743 F.3d

110, 111 n.1 (5th Cir. 2014) (stating that deferred adjudication under Texas law is

considered a conviction for purposes of immigration law).

      Whether an alien is deportable under 8 U.S.C. § 1227(a)(2)(A)(ii) depends

on the type of offenses and number of convictions involved. See 8 U.S.C.A.

§ 1227(a)(2)(A)(ii) (West 2005). That section, under which Owenga alleged that

DHS had determined that he was deportable, states, “Any alien who at any time

after admission is convicted of two or more crimes involving moral turpitude, not

arising out of a single scheme of criminal misconduct, regardless of whether

confined therefor and regardless of whether the convictions were in a single trial,

is deportable.” Id. (emphasis added). The rest of the subsection sets out various

specific offenses, such as controlled substance violations, certain firearm

offenses, espionage and treason offenses, and domestic violence offenses,


      5
       Owenga’s assertion that effective counsel “would have easily secured for
[Owenga] a plea that would not trigger immigration consequences” has no merit
under this definition.


                                        10
among others not applicable here. Id. § 1227(a)(2)(B)–(F) (West 2005 & Supp.

2014).

      Evading arrest can be a crime involving moral turpitude. See, e.g., Pulido-

Alatorre v. Holder, 381 Fed. App’x. 355, 358–59 (5th Cir. 2010) (upholding BIA

determination that appellant had committed a crime involving moral turpitude

when he pleaded guilty to committing evading arrest with a vehicle under “that

discrete subsection of the statute that criminalizes intentional flight with a vehicle”

because such conduct reflects an awareness and conscious disregard of

substantial and unjustifiable risk).   Owenga stated in his application that the

charge was evading arrest or detention under penal code section 38.04(b); that

the evading arrest offense “was a second offense involving moral turpitude”; and

that if he had proceeded to trial and been convicted, “he would have faced a

maximum of 24 months.”         Therefore, we infer based on the police records,

Oliphint’s affidavit, and Owenga’s allegations that Owenga pleaded guilty to

former section 38.04(b)(1)(B),6 which the Fifth Circuit has upheld as a crime


      6
       Owenga did not attach to his application a copy of the judgment of
deferred adjudication or the indictment for the evading arrest or detention
offense, but at the time he pleaded guilty in 2010, former penal code section
38.04(b)(1)(B) provided that evading arrest or detention was a state jail felony
when the actor used a vehicle while in flight and had not been previously
convicted under the section. Compare Tex. Penal Code Ann. § 38.04(b)(2)(A)
(West Supp. 2013) (punishing offense of evading arrest or detention using a
vehicle while in flight as a third-degree felony), with Act of May 27, 2009, 81st
Leg., R.S., ch. 1400, 2009 Tex. Gen. Laws 4385, 4386 (punishing offense of
evading arrest or detention using a vehicle while in flight as state-jail felony when
actor has not been previously convicted under the section), amended by Act of
May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Sess. Laws 2321, 2321–

                                          11
involving moral turpitude because of the criminalization of intentional flight with a

vehicle. See id. at 358–59 (stating that section 38.04(b) encompasses some

acts that do and some acts that do not involve moral turpitude and reviewing

discrete subsection to which defendant pleaded guilty to determine whether he

had been convicted of a crime involving moral turpitude).

      Owenga never stated in his application or affidavit what offense had

resulted in his prior conviction or that he had informed Oliphint about what

offense had resulted in the conviction. He did not attach anything from DHS

showing the basis for its allegation that he was deportable under 8 U.S.C.

§ 1227(a)(2)(A)(ii), BIA’s order of removal, or a copy of his prior conviction’s

judgment. Thus, he deprived the trial court and this court the opportunity to

review whether the prior conviction was for a crime involving moral turpitude. Cf.

Revolorio v. Holder, 554 Fed. App’x. 344, 345 (5th Cir. 2014) (stating that the

classification of a conviction as a crime of moral turpitude is reviewed de novo

based on the inherent nature of the crime as defined in the statute or, in the case

of divisible statutes, the alien’s record of conviction, which may include the

charging document, written plea agreement, transcript of the plea colloquy, and

any explicit factual findings by the trial judge to which the defendant assented);

Nino v. Holder, 690 F.3d 691, 695–96 (5th Cir. 2012) (stating that the court


22. Punishment for a state jail felony may include confinement for a term not to
exceed two years or less than 180 days, a fine not to exceed $10,000, or both.
Tex. Penal Code Ann. § 12.35(a)–(b) (West 2011 & Supp. 2013).


                                         12
reviews de novo whether a statute is a crime of moral turpitude for determining

cancellation of removal under 8 U.S.C. § 1229b).

      Despite our inference that Owenga pleaded guilty to an offense that

qualifies as a crime involving moral turpitude, the trial court could have chosen to

disbelieve Owenga’s assertion that he had a prior conviction, that the prior

conviction was for a crime involving moral turpitude, or that Owenga had

discussed his prior conviction with Oliphint and then implicitly found that the prior

conviction, if any existed or had ever been discussed with Oliphint, 7 was not for a

crime involving moral turpitude. See Ex parte Wheeler, 203 S.W.3d 317, 325–26

(Tex. Crim. App. 2006) (“First, as a matter of law, reviewing courts defer to the

trial court’s implied factual findings that are supported by the record, even when

no witnesses testify and all of the evidence is submitted in written affidavits.”).

      Therefore, unlike the immigration code’s drug offense provisions that made

the deportation consequence truly clear in Padilla, because the trial court

implicitly found that Owenga did not have a prior conviction; that if he did, it was

not for a crime involving moral turpitude; or that Oliphint was never made aware

of the alleged prior conviction, Oliphint needed to do no more than he actually

did, i.e., advise Owenga that pending criminal charges might carry a risk of

adverse immigration consequences. See Padilla, 559 U.S. at 369, 130 S. Ct. at


      7
       Oliphint’s affidavit does not mention anything about Owenga’s having a
prior conviction; therefore, the trial court could have also inferred that Owenga
never gave Oliphint any information about a prior conviction.


                                          13
1483; see also Ex parte Torres, No. 08-12-00244-CR, 2014 WL 1168929, at *5

(Tex. App.—El Paso Mar. 21, 2014, no pet.) (not designated for publication)

(stating that the list of deportable offenses, although extensive, is clearly set out

at 8 U.S.C. § 1227(a), that the list of twenty-one types of aggravated felonies

triggering automatic removal is set out at 8 U.S.C. 1101(a)(43), and that Padilla

imposes a duty on defense counsel to know what these crimes are and to advise

a client that a plea to any of these crimes will make him or her presumptively

deportable).8   Without reaching the other prong of the ineffective assistance

analysis, we conclude that the trial court did not abuse its discretion by denying

the application on this ground.

D. Consular Notification

      In his application, Owenga argued that he suffered prejudice when Oliphint

failed to inform him of his Vienna Convention rights or to challenge the violation

of them.   However, the record supports the trial court’s findings of fact that

Owenga presented no evidence and there exists no evidence suggesting that

any lack of consular notification affected his plea decision.9 See Sorto v. State,


      8
      Evading arrest is not listed as an “aggravated felony” under § 1101(a)(43).
See 8 U.S.C.A. § 1101(a)(43)(A)–(U) (West 2005) (listing specific offenses).
      9
       In his application, Owenga merely asserted that he had suffered prejudice
based on Oliphint’s failure to inform him of his Vienna Convention rights or to
challenge a violation of them

      because not only could his consular official offer assistance simply
      by offering information that would be vital in making a decision to
      plea guilty. The consular official would have immediately informed

                                         14
173 S.W.3d 469, 486–87 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926

(2006); Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000) (holding

that appellant failed to prove ineffective assistance when he did not show how

the outcome would have been different had his lawyer objected on the basis of a

Vienna Convention violation). In Sorto, the court of criminal appeals observed

that there was no evidence in the record that the consulate in Houston regularly

provided any assistance at all to its detained foreign nationals and that no

showing of prejudice had been made because the appellant’s “assertions of

prejudice are entirely speculative and belied by the record evidence and

applicable precedent.” 173 S.W.3d at 487–88. We conclude that the trial court

did not abuse its discretion by denying the application on this ground.

E. Actual Innocence

      In his application, Owenga made the brief statement, “Owenga avers that

he is innocent of the crime.”    However, Owenga did not present any newly

discovered evidence to the trial court that would affirmatively establish his




      him that[] it is clear under the INA that he would be rendered
      deportable and they would have [to] assist the U.S. Government in
      his removal. In light of this informantion [sic] Owenga would have
      asked his counsel for more advise [sic] and research and asked him
      to proceed to trial.

Generally, the Vienna Convention objection has been used to try to suppress
evidence, not to withdraw a plea. But see Sierra v. State, 218 S.W.3d 85, 88
(Tex. Crim. App. 2007) (“[S]uppression is not an appropriate remedy for
violations of the Vienna Convention[.]”).


                                        15
innocence. See Mello, 355 S.W.3d at 831. Therefore, the trial court did not

abuse its discretion by denying relief on this ground.10

                                  III. Conclusion

      Because we can discern no abuse of discretion by the trial court by

denying Owenga’s application, we affirm its judgment denying relief.




                                                    PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 3, 2014




      10
        The trial court did not make an express finding of fact or conclusion of
law with regard to Owenga’s actual innocence claim, but based on the record, we
conclude that it implicitly found that the claim had no merit. See Peterson, 117
S.W.3d at 819.


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