                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                   §
                                                                 No. 08-10-00240-CR
                                                   §
                                                                   Appeal from the
 EX PARTE: JUAN CARPIO-CRUZ                        §
                                                             Criminal District Court No. 1
                                                   §
                                                               of El Paso County, Texas
                                                   §
                                                             (TC# 20090D02854-DCR-1)
                                                   §

                                           OPINION

       Juan Carpio-Cruz filed a petition for writ of habeas corpus, asserting that he was not told

that pleading guilty to a drug offense would cause him to be deported. The trial court granted

habeas relief, and the State appeals. We affirm.

                            FACTUAL AND PROCEDURAL BACKGROUND

       In May 2009, Carpio was arrested for driving while intoxicated and possession of

cocaine.1 He was subsequently indicted for possessing less than one gram of cocaine, a state jail

felony. Through his retained counsel, Carpio entered into a plea bargain with the State on the

possession case. In exchange for his guilty plea, the State agreed to prosecute the case as a class

A misdemeanor and to recommend that he receive eleven months of deferred adjudication

probation. The plea papers included the following admonishment: “If you are not a citizen of

the United States, by pleading guilty . . . to this offense you may be deported, excluded from

future admission into the United States, or denied naturalization under Federal Law.” Carpio


       1
           Carpio-Cruz’s appellate brief refers to him as “Carpio,” so we do the same.
signed this admonishment under the statement, “I have read this page and understand the

contents.” At the plea hearing in November 2009, Carpio told the court that his attorney had read

the plea papers to him in Spanish, that he understood the papers, and that counsel had answered

all of his questions. The court accepted Carpio’s guilty plea and granted him deferred

adjudication pursuant to the plea bargain. In December 2009, Carpio’s attorney negotiated a plea

bargain in the DWI case, allowing him to plead guilty in exchange for a period of probation to

run concurrent with his probation in the possession case.

       In May 2010, a new attorney filed a petition for writ of habeas corpus on Carpio’s behalf.

The petition alleged that Carpio is not a United States citizen and that, as a result of his guilty

plea in the possession case, he had been detained and ordered to be deported. Carpio argued that

his plea counsel was ineffective because she failed to advise him that his guilty plea would lead

to his deportation.

       Orlando Mondragon, an attorney who specializes in immigration and criminal law,

testified at the hearing on the habeas petition. He indicated that an immigrant who is convicted

of either misdemeanor or felony cocaine possession is deportable. An order of deferred

adjudication is considered a conviction for immigration purposes. Moreover, an alien who is

placed in immigration detention and who has a drug conviction is not eligible for bond unless the

drug conviction occurred before 1998.

       Mondragon described how he would handle a case in which his client was charged with a

deportable crime, such as cocaine possession, and a non-deportable crime, such as DWI. In that

situation, Mondragon would attempt to negotiate a plea bargain under which the client agreed to

serve the maximum sentence for the DWI in exchange for dismissal of the deportable offense. If


                                                  -2-
the prosecution would not agree to dismiss the deportable offense, he would advise the client that

if he pleads guilty “for sure you are going to be deported.” However, Mondragon also testified

that before March 2010, attorneys were not required to advise their clients about the possibility of

deportation because deportation was considered a collateral consequence of a conviction.

       Finally, Mondragon discussed the requirements for “cancellation of removal.”2 To be

eligible for this relief, an alien must have lived in this country for at least seven years and must

have been a lawful permanent resident for at least five years before the offense was committed.

If an immigrant pleads guilty to cocaine possession and does not meet these requirements, “he

would be deported and inadmissible for life.” “[T]here’s no relief, there’s nothing you could do.

Once he pleads or he gets convicted, there’s nothing -- he will get deported.” This is not a

“‘could be’ situation, but a ‘would be’ situation.” This has been the law since 1996.

       Carpio’s sworn, written declaration was admitted into evidence without objection. In the

declaration, Carpio stated that when he consulted with his plea counsel, she asked him if he was

a citizen or resident alien, and he responded that he “was a resident with less than five years.”

He then asked her if he “would have any problems with immigration,” and she told him that he

“might,” but he “would not have any problems” if the possession charge could be reduced from a

felony to a misdemeanor. At the plea hearing, counsel gave him a paper to sign, stating that the

charge had been reduced to a misdemeanor and that he would receive eleven months of

probation. When he again asked her if he would have any problems with immigration, she told

him that “she did not think so.” In conclusion, Carpio stated: “She never did explain to me that


       2
         Some of the newer immigration statutes use the term “removal” instead of “deportation,”
but the words have the same meaning. See Lolong v. Gonzales, 484 F.3d 1173, 1177 n.2 (9th Cir.
2007).

                                                 -3-
if they found me guilty they would deport me. It’s logical that if she ever told me that I would

not have signed. I would’ve looked for another attorney to represent me and help me fight my

case.”

         An affidavit by Carpio’s wife, Edna Cazares, was also admitted without objection. Her

version of events was consistent with her husband’s. In addition, Cazares averred that if counsel

had explained that the guilty plea would lead to deportation she did not think that Carpio would

have agreed to plead guilty. Instead, “[h]e would have fought the drug charges and asked for a

jury trial.”

         Cazares testified at the habeas hearing. She stated that Carpio told counsel that he had

been a legal resident for less than five years. Counsel did not ask how long Carpio had lawfully

been in the United States before becoming a legal permanent resident. Cazares testified that her

husband told counsel that he did not want to go to jail. Counsel did not tell him that he probably

would have been placed on probation if he had gone to trial or that he would be detained without

bond by the immigration authorities if he entered a guilty plea. At the time of the habeas hearing,

Carpio had been detained at an immigration camp for five months.

         Plea counsel submitted an affidavit and testified at the hearing. In her affidavit, she stated

that she asked Carpio “how long he had been a resident of the United States and he stated about

five years.” She then “advised him that these charges could result in removal.” The district

attorney’s office refused to dismiss the possession charge, but did offer to reduce it to a class A

misdemeanor and to recommend eleven months of deferred adjudication probation. She told

Carpio “that despite the fact the [p]ossession charge would be reduced to a misdemeanor this

could still affect his resident status with immigration” and “he could still face immigration


                                                  -4-
proceedings.” She denied that she ever told Carpio that he could not be deported for the

possession charge.

       At the hearing, counsel testified that she was familiar with the applicable immigration

statutes. She knew that any drug conviction other than possession of less than thirty grams of

marijuana is a deportable crime. Counsel acknowledged that a conviction for possession of a

controlled substance would “always” result in immigration consequences, yet she only told

Carpio that “he could face immigration consequences.” She did not tell him that he would

certainly be placed in deportation proceedings. She understood that to be eligible for

cancellation of removal, a person must have been a lawful permanent resident for five years

before the date of the arrest. Counsel believed that Carpio was a lawful permanent resident for at

least this amount of time.

       Counsel testified that one of Carpio’s main concerns was going to jail. Therefore, he was

reluctant to take his chances with a trial. Counsel knew that when deportation proceedings result

from a drug crime, the alien is mandatorily detained and cannot be released on bond. She did not

tell Carpio that this would occur.

       The trial court granted the petition for writ of habeas corpus, withdrew Carpio’s guilty

plea, and vacated the deferred adjudication order. In its findings of fact, the court found that

Carpio informed counsel that he was not a United States citizen and had been a lawful permanent

resident for less than five years at the time he was arrested. The court also found that counsel did

not advise Carpio that he “would” be deported if he pled guilty to the cocaine charge, but advised

him only that the guilty plea “could” affect his immigration status. In its conclusions of law, the

court stated that the terms of the relevant immigration statutes are “succinct, clear and explicit”


                                                 -5-
that Carpio would be deported if he pled guilty to the cocaine charge because he had not been a

lawful permanent resident for at least five years before his arrest and thus was not eligible for

cancellation of removal. The court also determined that counsel’s representation fell below an

objective standard of reasonableness because the immigration statutes are succinct, clear, and

explicit, yet counsel did not investigate Carpio’s immigration status or advise him that he would

be deported if he pled guilty. Finally, the court concluded that there is a reasonable probability

that, but for counsel’s deficient performance, the result of the proceeding would have been

different because Carpio would have declined the probation offer and gone to trial if he had

understood the deportation consequences.3

                                            DISCUSSION

                                        Standard of Review

       We review a trial court’s ruling on a habeas petition for an abuse of discretion. See Ex

parte De Los Reyes, No. 08–10–00239–CR, 2011 WL 3841379, at *3 (Tex.App.--El Paso

Aug. 31, 2011, pet. filed). We view the evidence in the light most favorable to the ruling and we

afford almost total deference to the trial court’s factual findings, particularly when those findings

are based on evaluations of credibility and demeanor. Ex parte De Los Reyes, 2011 WL

3841379, at *3. We review the determination of legal issues de novo. See id.; see also Ex parte



       3
           The trial court also concluded that Carpio was entitled to habeas relief because the judge
who took his plea did not properly admonish him in accordance with Article 26.13 of the Texas
Code of Criminal Procedure. That statute does not apply to misdemeanor cases. Gutierrez v. State,
108 S.W.3d 304, 309 (Tex.Crim.App. 2003); see also Clinton v. State, 720 S.W.2d 196, 197
(Tex.App.--Austin 1986, no pet.)(indicating that Article 26.13 does not apply if the defendant
ultimately pleads to a misdemeanor even though he was originally charged with a felony). Because
we conclude that habeas relief was properly granted on the basis of ineffective assistance of counsel,
the trial court’s determination regarding Article 26.13 is immaterial.

                                                 -6-
Quintana, 346 S.W.3d 681, 684 (Tex.App.--El Paso 2009, pet. ref’d). We must affirm a trial

court’s ruling on a habeas petition if the ruling is correct based on any legal theory before the

court, regardless of whether some of the reasons given by the court appear to be faulty. Ex parte

Pipkin, 935 S.W.2d 213, 215 n.2 (Tex.App.--Amarillo 1996, pet. ref’d).

        To be entitled to habeas relief on the basis of ineffective assistance of counsel, a

petitioner must prove by a preponderance of the evidence that counsel’s performance was

deficient and that he was prejudiced as a result. See Perez v. State, 310 S.W.3d 890, 893

(Tex.Crim.App. 2010); see also Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052,

2064-69, 80 L.Ed.2d 674 (1984). To establish deficient performance, the petitioner must show

that counsel’s performance fell below an objective standard of reasonableness based on

prevailing professional norms. Perez, 310 S.W.3d at 893. To establish prejudice, the petitioner

must show that there is a reasonable probability that, but for counsel’s deficient performance, the

result of the proceeding would have been different. Id.

                                        Padilla v. Kentucky

        Carpio’s ineffectiveness claim is founded upon Padilla v. Kentucky. In that case, Padilla

alleged that his attorney did not properly advise him about the immigration consequences of

pleading guilty to a charge of transporting a large quantity of marijuana. Padilla v. Kentucky,

___ U.S. ___, ___, 130 S.Ct. 1473, 1477-78, 176 L.Ed.2d 284 (2010). Assuming that this

allegation was true, the Kentucky Supreme Court nevertheless refused to grant post-conviction

relief based on its view that deportation is merely a collateral consequence of a conviction. Id. at

1478.

        The United States Supreme Court disagreed. The Court noted that as a result of


                                                 -7-
legislative changes in 1996, if a noncitizen commits a deportable offense, deportation “is

practically inevitable but for the possible exercise of limited remnants of equitable discretion

vested in the Attorney General to cancel removal for noncitizens convicted of particular classes

of offenses.” Id. at 1480, citing 8 U.S.C. § 1229b. In Padilla’s case, the relevant immigration

statute was 8 U.S.C. § 1227(a)(2)(B)(i). The Court held that the terms of this statute “are

succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction.” Id. at

1483. By simply reading the statute, Padilla’s attorney “could have easily determined” that his

guilty plea would make him subject to deportation, because the statute “specifically commands

removal for all controlled substances convictions except for the most trivial of marijuana

possession offenses.” Id. The Court added, however, that there will be many situations in which

the deportation consequences of a particular plea are unclear. In those situations, counsel “need

do no more than advise a noncitizen client that pending criminal charges may carry a risk of

adverse immigration consequences.” Id.

                    The State’s Arguments Regarding Deficient Performance

        The State asserts that Padilla created a new rule that should not be applied retroactively

to cases on collateral review. After the State submitted its brief, we held in another case that

Padilla is retroactive. See Ex Parte De Los Reyes, 2011 WL 3841379, at *3-5. We therefore

reject the State’s assertion.

        The State also points out that counsel’s performance must be measured by the law that

was in effect when the representation was provided. When Carpio pled guilty, an attorney’s

failure to give advice regarding deportation was not considered to be ineffective assistance. Like

the Kentucky Supreme Court, our Court of Criminal Appeals has held that deportation is a


                                                 -8-
collateral consequence of a guilty plea and that attorneys need not inform their clients about

collateral consequences. See State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex.Crim.App. 1999);

Ex parte Morrow, 952 S.W.2d 530, 537 (Tex.Crim.App. 1997); see also Perez v. State, 31

S.W.3d 365, 368 (Tex.App.--San Antonio 2000, no pet.)(“Deportation is a collateral

consequence of a guilty plea, and trial counsel’s failure to advise Perez of the likelihood of

deportation does not rise to the level of constitutionally ineffective assistance of counsel.”).

       The Supreme Court has stated that the effectiveness of representation must be “viewed as

of the time of counsel’s conduct.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Similarly, the

Court of Criminal Appeals has stated that “counsel’s performance will be measured against the

state of the law in effect during the time of trial . . . .” Ex parte Welch, 981 S.W.2d 183, 184

(Tex.Crim.App. 1998). An attorney who relies on contemporaneous judicial opinions in

assessing the validity of a legal proposition will not be deemed deficient if the law subsequently

changes, because “a bar card does not come with a crystal ball attached.” Ex parte Chandler,

182 S.W.3d 350, 358-59 (Tex.Crim.App. 2005). Citing these cases, the State argues that

Carpio’s counsel was not deficient because the failure to advise a client about deportation was

not considered deficient under pre-Padilla law.

       The Third Circuit Court of Appeals has rejected this argument. See United States v.

Orocio, 645 F.3d 630, 642 (3rd Cir. 2011). The court explained:

               We find unpersuasive the government’s argument that, because Strickland
       measures counsel’s performance ‘on the facts of the particular case viewed as of
       the time of counsel's conduct,’ Mr. Orocio’s claim should fail because it was not
       reasonable to expect his attorney, in 2004, to predict a Supreme Court decision
       nearly six years later. This argument misses the mark. His attorney is not alleged
       to be deficient because he failed to predict the Padilla decision--he is alleged to be
       deficient because he did not measure up to prevailing professional norms


                                                  -9-
       demanded of counsel at the plea stage as required by Strickland and its progeny.

Orocio, 645 F.3d 642 [Footnote omitted].

       The Third Circuit’s approach is consistent with the Texas cases cited by the State. In the

statements quoted above, the court was referring to the substantive law governing a client’s

situation, not the law governing ineffective assistance claims. Chandler concerned the issue of

whether a prior conviction is final for enhancement purposes. The court held that the law on that

issue was unsettled at the time of the defendant’s trial and that his attorney was not deficient in

failing to predict how the court would ultimately resolve the issue three years later. See

Chandler, 182 S.W.3d at 357-59. But the court noted that “[i]gnorance of well-defined general

laws, statutes and legal propositions is not excusable . . . .” Id. at 358. In Welch, counsel did not

file an application for probation because he mistakenly believed that his client was not eligible

for probation. 981 S.W.2d at 184-85. In contrast with Chandler, the court held that the attorney

was deficient because it should have been evident to him that his client was eligible for probation

based on the plain language of the applicable statute. Id. at 185.

       Here, Carpio asserts that the immigration consequences were well defined and that it

should have been evident to his counsel that he would be deported as a result of his guilty plea.

If these assertions are correct, he is entitled to relief pursuant to Strickland, Chandler, and Welch.

       The State next argues that the advice given by Carpio’s attorney was sufficient under

Padilla. According to the State, “Padilla did not impose a duty on defense counsel to

affirmatively advise a non-citizen client that he would or would not be deported.” Instead,

counsel must only inform her client that a guilty plea carries a risk of deportation. Since Carpio’s

attorney testified, and the trial court found, that she advised him that his plea could affect his


                                                 -10-
immigration status, the State argues that counsel complied with Padilla.

        The State relies on the following quotation to support its argument: “[W]e now hold that

counsel must inform her client whether his plea carries a risk of deportation.” Padilla, 130 S.Ct.

at 1486. This quotation is taken out of context. At another point in the opinion, the Court stated,

“When the law is not succinct and straightforward . . . 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 . . . the duty to

give correct advice is equally clear.” Id. at 1483 [Footnote omitted]. Elsewhere the Court stated,

“We agree with Padilla that constitutionally competent counsel would have advised him that his

conviction for drug distribution made him subject to automatic deportation.” Id. at 1478. Thus,

the resolution of an ineffective assistance claim under Padilla depends on whether the applicable

law is succinct and straightforward. If the law is not succinct and straightforward, the attorney

can comply with Padilla by simply advising her client of the risk of deportation. But if the law is

succinct and straightforward, the attorney must tell her client what the immigration consequences

of a plea will be. See Ex parte De Los Reyes, 2011 WL 3841379, at *6 (holding that an

“admonishment that the plea ‘may’ result in deportation” is insufficient under Padilla when the

defendant’s deportation is a “near certainty”).

        The trial court concluded that the relevant immigration statutes are “succinct, clear and

explicit” in requiring Carpio’s deportation once he entered his guilty plea. The State does not

challenge this conclusion. Such a challenge would fail in any event. One of the statutes

provides, “Any alien who at any time after admission has been convicted of a violation of . . . any

law or regulation of a State . . . relating to a controlled substance . . . other than a single offense


                                                  -11-
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). This is the very statute that the Supreme Court described as “succinct,

clear, and explicit” in Padilla. 130 S.Ct. at 1483. As the Court noted, the statute “specifically

commands removal for all controlled substances convictions except for the most trivial of

marijuana possession offenses.” Id. An order of deferred adjudication is a conviction for

purposes of this statute. See 8 U.S.C. § 1101(a)(48); Moosa v. I.N.S., 171 F.3d 994, 1005-06 (5th

Cir. 1999).

       The other applicable law in this case is the cancellation of removal statute. That statute

allows the attorney general to call off an alien’s deportation if the alien has been lawfully

admitted for permanent residence for at least five years, has resided in the United States

continuously for seven years after having been admitted in any status, and has not been convicted

of any aggravated felony. 8 U.S.C. § 1229b(a). The trial court found that both Carpio and his

wife told his attorney that he had been a permanent resident for less than five years, so he would

not qualify for cancellation of removal. He also would not qualify for cancellation because he

had not been lawfully admitted for seven years. Cazares testified that counsel did not ask Carpio

how long he had resided in the United States in any status.

       Counsel testified that she was aware of and understood all of these statutes, yet she only

advised Carpio that his guilty plea “could” result in removal and he “could” face immigration

consequences. Because Carpio’s deportation was “practically inevitable,” this advice was

deficient. See Padilla, 130 S.Ct. at 1480; Ex parte De Los Reyes, 2011 WL 3841379, at *6; see

also Salazar v. State, 2011 WL 4056283, at *3 (Tex.App.--Eastland Aug. 31, 2011, no pet.

h.)(“[T]he correct advice, which was that the plea of guilty would result in certain deportation,


                                                -12-
was not given. Both the terms ‘likelihood’ and ‘possibility’ leave open the hope that deportation

might not occur.”); Ex parte Romero, 2011 WL 3328821, at *2 (Tex.App.--San Antonio Aug. 3,

2011, no pet.)(“Because trial counsel only informed Romero about ‘possible’ immigration

consequences where the law made deportation a virtual certainty, counsel’s performance was

deficient.”).

                           The State’s Arguments Regarding Prejudice

        The State argues that even if counsel was deficient, Carpio’s habeas petition does not

plead a cognizable type of prejudice. The State points out that Carpio had the burden of pleading

and proving facts showing his entitlement to habeas relief. See Ex parte Maldonado, 688 S.W.2d

114, 116 (Tex.Crim.App. 1985). To establish prejudice in the guilty plea context, a habeas

petitioner must show a reasonable probability that, but for counsel’s deficient performance, he

would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474

U.S. 52, 58–59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Ex parte Niswanger, 335 S.W.3d

611, 615 (Tex.Crim.App. 2011). A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Ex parte

Niswanger, 335 S.W.3d at 615 n.7.

        Carpio’s habeas petition does not state that he would have pled not guilty if he had known

that he would be deported. The petition only states that he was prejudiced because his

deportation will cause harsh consequences. Since the petition does not say that Carpio would

have pled not guilty, the State asks us to overrule the trial court’s conclusion that counsel’s

deficient performance prejudiced Carpio.

        In one of the cases cited by the State, the Court of Criminal Appeals determined that a


                                                -13-
habeas petition failed to allege facts that would entitle the petitioner to relief. The court

dismissed the petition without prejudice to the petitioner’s “right to replead and support this

allegation with adequate reasoning, argument and testimonial and recorded evidence . . . .”

Maldonado, 688 S.W.2d at 116. Thus, in this case, the trial court might have been justified in

entering a dismissal without prejudice for failure to allege the correct type of prejudice. But

instead of doing that, the court heard evidence on, and granted, Carpio’s petition. Considering

these circumstances, we will base our prejudice inquiry on the evidence presented rather than the

allegations in the petition.4

        In his affidavit, which was attached to the petition, Carpio stated that counsel did not tell

him that he would be deported, and if she had told him that, “[i]t’s logical . . . that I would not

have signed.” He claimed, “I would’ve looked for another attorney to represent me and help me

fight my case.” Although this suggests that Carpio would have demanded a trial, the State argues

that Carpio’s other actions belie this interpretation of the affidavit.

        Carpio filed a motion to bifurcate the habeas proceedings so that there would be one

hearing on deficient performance and then, if the court ruled in his favor on that issue, there

would be a second hearing on prejudice. He asserted that if the court found in his favor on

deficient performance, the parties would then have an opportunity to negotiate a plea bargain that

would not require his deportation. According to the State, this motion indicates that by “fight my

case,” Carpio meant “arrange a better plea agreement,” not “demand a jury trial.” Furthermore,

his trial counsel testified that Carpio never told her that he was innocent or expressed a desire for



        4
         The State did not move to dismiss based on a pleading deficiency, although it did argue at
the conclusion of the hearing that Carpio had not established the correct type of prejudice.

                                                 -14-
a jury trial.

        The motion to bifurcate demonstrates that Carpio places great importance on not being

deported. This is consistent with the evidence submitted at the habeas hearing. The fact that he

was open to a plea bargain that would preclude his deportation does not negate a finding that he

would have taken his chances at trial instead of entering a plea that guaranteed his deportation.

        Nor do we believe that his failure to declare his innocence and to demand a trial are

dispositive. Counsel testified that Carpio strongly wished to avoid being incarcerated. She

presented him with a plea bargain that would seemingly ensure his freedom. It is not surprising

that Carpio would follow counsel’s advice to accept this bargain if he did not realize that the plea

would result in deportation.5

        The State next argues that the trial court applied the wrong prejudice standard. In its

conclusions of law regarding prejudice, the court stated that Carpio “was deprived of the

opportunity for a reasonable decision maker to exercise discretion in his favor” and the court

referred to the lost opportunity to “seek an immigration safe plea.” The State argues that the

clear import of these statements is that Carpio was prejudiced by his inability to secure a more

favorable plea bargain.

        The State fails to note that the court also stated in its conclusions of law that Carpio

“would have declined the probation offer and taken the case to trial had he known of the certain

immigration consequences of deportation.” This statement clearly articulates the standard that

the State advocates. The court’s other statements are therefore immaterial.


        5
         As it turned out, Carpio has been detained pending his deportation. Counsel knew that
Carpio could be placed in mandatory immigration detention as a result of his plea, but she did not
share this knowledge with him.

                                                 -15-
       There is evidence to support the trial court’s conclusion that Carpio would have gone to

trial. In addition to Carpio’s affidavit, which stated that he would have fought the case, his

wife’s affidavit stated that if counsel had told Carpio that his guilty plea would lead to

deportation, “I don’t think he would have signed the guilty papers. He would have fought the

drug charges and asked for a jury trial.” See Ex parte Moody, 991 S.W.2d 856, 858

(Tex.Crim.App. 1999)(relying on a third party’s statement as evidence of the petitioner’s intent).

       In Padilla, the Supreme Court stated that “to obtain relief on this type of claim, a

petitioner must convince the court that a decision to reject the plea bargain would have been

rational under the circumstances.” 130 S.Ct. at 1485. In its last argument regarding prejudice,

the State contends that Carpio failed to establish that rejecting the plea bargain would have been

a rational decision for him.

       The trial court concluded that it would have been rational for Carpio to reject the plea

bargain because he “had nothing to lose by taking his case to trial.” The State asserts that if the

case had gone to trial, Carpio would have been convicted and sentenced up to two years in a state

jail facility, and then would have still faced deportation. Thus, the State argues, he did in fact

have something to lose by taking his case to trial.

       The court’s comment that Carpio had “nothing to lose” is a bit hyperbolic. There are

always risks associated with going to trial. However, Carpio did not have to prove that he would

have prevailed at trial. See Johnson v. State, 169 S.W.3d 223, 231 (Tex.Crim.App. 2005); Ex

parte De Los Reyes, 2011 WL 3841379, at *6. Nor did he have to prove that going to trial was

the most rational decision. There may be more than one reasonable approach to take in a case.

Carpio’s plea counsel conceded that he probably would have received a probated sentence if he


                                                -16-
had been convicted in a trial. In any event, the Padilla Court noted that preserving the right to

remain in the United States may be more important to a defendant than any potential jail

sentence. See 130 S.Ct. at 1483. The trial court did not abuse its discretion in concluding that it

would have been rational for Carpio to reject the plea bargain. See Salazar, 2011 WL 4056283,

at *3 (“It would be perfectly rational to take the chance on acquittal at the risk of a maximum of

two years state jail time and a fine of $10,000 rather than enter into a guilty plea that would result

in certain deportation, separating him from his family and the opportunities that come from being

a legal resident of the United States.”).

                                The State’s Remaining Arguments

       In addition to the findings regarding deportation, the trial court found that Carpio’s plea

counsel provided deficient representation in other respects. The State asserts that these findings

are “gratuitous,” as well as unsupported by the record and applicable law. Because the trial court

did not abuse its discretion in determining that Carpio established his ineffective assistance claim

regarding deportation, we agree with the State that the other findings are gratuitous.

Accordingly, it is not necessary to address the State’s arguments regarding these findings.

                                            CONCLUSION

       The trial court’s order granting habeas relief is affirmed.



November 9, 2011
                                               CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)



                                                  -17-
