Affirmed and Memorandum Opinion filed March 17, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00598-CR



                   EX PARTE MARIO R. AVILA, Appellant



             On Appeal from County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 1922970

                  MEMORANDUM OPINION

      In this appeal from the denial of appellant Mario R. Avila’s application for
writ of habeas corpus, appellant asserts that the trial court abused its discretion by
denying his request for habeas relief. Specifically, appellant asserts that his trial
counsel was ineffective for failing to advise him that removal from the United
States was presumptively mandatory following a guilty plea to possession of
marijuana. We affirm.
                                    BACKGROUND

      In May 2010, Houston Police Department officers conducted a traffic stop
on a vehicle in which appellant was the front-seat passenger. When the officers
approached the vehicle, one of them saw the back-seat passenger wedge something
under his seat. The other officer asked the driver for his driver’s license; the driver
replied that he did not have one. This officer detained the driver for driving without
a license, while the other officer detained appellant and the back-seat passenger.
While the officers were speaking to appellant, they noticed a strong odor of
marijuana coming from his clothing. When asked if he had smoked marijuana,
appellant responded that he had “smoked weed” earlier that night.

      The officers then searched the vehicle and found a small bag of marijuana
wedged between the ceiling and the windshield on the front passenger side of the
car where appellant had been sitting. One of the officers asked the driver who the
marijuana belonged to, and the driver said that it was appellant’s. In the back of the
car, the officers found a small bag of cocaine wedged in between the back-
passenger seat and the floor board. The officers then arrested appellant for
possession of marijuana, the back-seat passenger for possession of a controlled
substance, and the driver for failure to display a valid driver’s license.

      The State charged appellant with the Class B misdemeanor offense of
possession of marijuana in an amount of two ounces or less. Appellant retained
defense counsel David Paz, who had represented appellant in a possession-of-
marijuana case in 2009, which resulted in deferred adjudication appellant had
successfully completed shortly before being arrested in the underlying case. Paz
appeared with appellant in court for an initial setting; Paz’s associate, lawyer Elise
DuBroeck, appeared in court with appellant on September 28, 2010, when
appellant pleaded guilty pursuant to a plea bargain agreement with the State. The

                                           2
trial court accepted appellant’s plea, found him guilty, followed the terms of the
plea agreement, and sentenced appellant to confinement in the Harris County Jail
for three days and a $100.00 fine.

       Appellant, a Honduran native in the United States on temporary protected
status (TPS), was subsequently detained by United States Immigration and
Customs Enforcement and is facing removal proceedings.1 On October 3, 2013,
appellant filed an application for writ of habeas corpus pursuant to article 11.09 of
the Texas Code of Criminal Procedure.2 In his application, appellant alleged as the
sole ground for relief that his plea was involuntary because his trial counsel failed
to advise him that removal from the United States was presumptively mandatory
following his guilty plea to possession of marijuana.

       The trial court heard appellant’s application for writ of habeas corpus on
March 7 and June 18, 2014. Paz testified that there was no notation in his file about
appellant being in the country on TPS. Paz stated that he would ordinarily advise
his non-citizen clients charged with possession of marijuana that they would be
mandatorily detained and that the conviction could be used to deport them. But Paz
acknowledged he was not present when appellant entered his guilty plea. He also
admitted he had no independent recollection whether appellant informed him that
appellant was under TPS. Paz stated that he spoke with DeBroeck on the phone the
day of appellant’s plea about appellant’s Honduran citizenship. He explained that it



       1
        An alien who is convicted of two misdemeanors is not eligible for TPS. See 8 U.S.C.A.
§ 1254a(a)(1), (b) (describing TPS); id. § 1254a(c)(2)(B)(i), (3)(1) (providing alien convicted of
two misdemeanors is not eligible for TPS); see also 8 U.S.C.A. § 1227(a)(2)(B)(i) (providing
that any alien who, after admission to the United States, has been convicted of a controlled
substance offense, other than a single offense involving possession for one’s own use of 30
grams or less of marijuana, is deportable).
       2
           Appellant filed an amended application on October 25.

                                                3
vehicle. DeBroeck also explained the remainder of the facts of appellant’s arrest,
described above. However, she acknowledged that, because appellant declined to
go to trial, her knowledge about the facts of the case came from the police report.
The police offense report describing the circumstances surrounding appellant’s
arrest was admitted into evidence.

      The trial court questioned DeBroeck about whether appellant’s prior
deferred adjudication would have been admissible had he chosen to go to trial. She
affirmed that it would have been. She explained that appellant’s plea bargain
consisted of three days’ jail time, with credit for two days already served, and a
$100 fine. Had appellant proceeded to trial, she acknowledged that his sentence for
this offense could have been up to six months in jail and a $2,000 fine.

      Appellant’s mother, Zeinada Romero, also testified at this hearing. Romero
explained that appellant “was detained by INS” last year because of his September
2010 conviction for possession of marijuana. She testified that she was present at
all of the court hearings and meetings with appellant’s attorney prior to his guilty
plea on this charge. She said she was concerned about appellant’s immigration
status because he was here on TPS at the time. According to Romero, on the day
that appellant entered his guilty plea in the underlying case, she told his attorney
his guilty plea would affect his immigration status. Romero stated that his attorney,
DuBroeck, called Paz, and Paz said appellant’s guilty plea would not affect
appellant’s immigration status “in the slightest.”

      The trial court denied appellant’s application for writ of habeas corpus
without making any findings. This appeal timely followed.




                                          5
vehicle. DeBroeck also explained the remainder of the facts of appellant’s arrest,
described above. However, she acknowledged that, because appellant declined to
go to trial, her knowledge about the facts of the case came from the police report.
The police offense report describing the circumstances surrounding appellant’s
arrest was admitted into evidence.

      The trial court questioned DeBroeck about whether appellant’s prior
deferred adjudication would have been admissible had he chosen to go to trial. She
affirmed that it would have been. She explained that appellant’s plea bargain
consisted of three days’ jail time, with credit for two days already served, and a
$100 fine. Had appellant proceeded to trial, she acknowledged that his sentence for
this offense could have been up to six months in jail and a $2,000 fine.

      Appellant’s mother, Zeinada Romero, also testified at this hearing. Romero
explained that appellant “was detained by INS” last year because of his September
2010 conviction for possession of marijuana. She testified that she was present at
all of the court hearings and meetings with appellant’s attorney prior to his guilty
plea on this charge. She said she was concerned about appellant’s immigration
status because he was here on TPS at the time. According to Romero, on the day
that appellant entered his guilty plea in the underlying case, she told his attorney
his guilty plea would affect his immigration status. Romero stated that his attorney,
DuBroeck, called Paz, and Paz said appellant’s guilty plea would not affect
appellant’s immigration status “in the slightest.”

      The trial court denied appellant’s application for writ of habeas corpus
without making any findings. This appeal timely followed.




                                          5
                                           ANALYSIS

      Appellant asserts that the habeas court abused its discretion by denying relief
because his plea counsel’s advice that he could face immigration consequences
was ineffective under Padilla’s 3 requirement that plea counsel advise noncitizen
defendants of “truly clear” deportation consequences. The State responds that
appellant failed to establish prejudice.

A.    Habeas Corpus Standard of Review

      We review a habeas court’s decision on an application for a writ of habeas
corpus under an abuse-of-discretion standard. Ex parte Fassi, 388 S.W.3d 881, 886
(Tex. App.—Houston [14th Dist.] 2012, no pet.). The applicant bears the burden of
establishing by a preponderance of the evidence that the facts entitle him to relief.
Id. We consider the evidence presented in the light most favorable to the habeas
court’s ruling regardless of whether the court’s findings are implied or explicit, or
based on affidavits or live testimony. Id. If the resolution of the ultimate question
turns on an application of legal standards, we review the issue de novo. Id. at 521.

B.    Legal Principles for Claims of Ineffective Assistance of Counsel

      To prevail on an ineffective-assistance claim, an applicant must show that
(1) counsel’s performance was deficient by falling below an objective standard of
reasonableness; and (2) counsel’s deficiency caused the defendant prejudice—that
is, there is a probability sufficient to undermine confidence in the outcome that but
for counsel’s errors, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). The applicant must prove both
prongs of the test by a preponderance of the evidence; failure to establish either

      3
          Padilla v. Kentucky, 559 U.S. 356, 369 (2010).

                                                6
deficient performance or prejudice will defeat a claim of ineffectiveness. Perez,
310 S.W.3d at 893.

      A defendant has the right to effective assistance of counsel in guilty-plea
proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
A guilty plea must represent a voluntary and intelligent choice among the
alternative courses of action open to the defendant. Fassi, 388 S.W.3d at 886
(quotations omitted). “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). “Specifically, when a person challenges the validity of a
plea entered upon the advice of counsel, contending that his counsel was
ineffective, the voluntariness of the plea depends on (1) whether counsel’s advice
was within the range of competence demanded of attorneys in criminal cases and if
not, (2) whether there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty.” Harrington, 310 S.W.3d at 458 (quotations
omitted).

      Plea counsel’s performance is deficient if counsel fails to advise a noncitizen
defendant about deportation consequences that are “truly clear.” See Padilla, 559
U.S. at 369; Fassi, 388 S.W.3d at 886. Thus, plea counsel is deficient if counsel
merely mentions the possibility of deportation when the relevant immigration
provisions are presumptively mandatory. Fassi, 388 S.W.3d at 886. To establish
prejudice, an applicant “must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances.” Padilla, 559 U.S. at
372; see also Fassi, 388 S.W.3d at 887. “The test is objective; it turns on what a
reasonable person in the defendant's shoes would do.” United States v. Smith, 844
F.2d 203, 209 (5th Cir. 1988) (per curiam).



                                         7
      When the prejudice prong of the Strickland test is dispositive, as here, we
will address only that prong on appeal. Fassi, 388 S.W.3d at 887 (citing Seamster
v. State, 344 S.W.3d 592, 594 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d);
Strickland, 466 U.S. at 697). 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. Id. (citing Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App.
2005)).

C.    Prejudice

      We must determine whether appellant proved there is a reasonable
probability that but for counsel’s errors, he would not have pleaded guilty, which
requires proof that a decision to reject the plea bargain was rational under the
circumstances. See Harrington, 310 S.W.3d at 458; Padilla, 559 U.S. at 372. This
inquiry is made on a case-by-case basis, considering the circumstances surrounding
the plea and the gravity of the alleged failure. Ex parte Murillo, 389 S.W.3d 922,
928 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Fassi, 388 S.W.3d at 887–
88. In Murillo, this court identified several factors to consider in reviewing the
circumstances surrounding the applicant’s plea in light of the evidence presented to
the habeas court: (1) the strength of the State’s evidence of the defendant’s guilt;
(2) whether the defendant had any factual or legal defenses to the charged offense;
(3) whether the record reveals that the defendant’s immigration status was the
defendant’s primary concern, as opposed to other concerns like the fear of
incarceration or a desire for the case to simply be over; and (4) the benefits of the
plea bargain compared to the penalties risked if the defendant had opted to proceed
to trial. Murillo, 389 S.W.3d at 928. We consider each of these factors in turn.



                                          8
      1. Evidence of applicant’s guilt

      Courts often consider the strength of the State’s case or evidence of the
applicant’s guilt in determining whether a decision to reject a plea bargain would
have been a rational one. For example, in Fassi, this court affirmed denial of
habeas relief based on lack of sufficient prejudice where the evidence of guilt in
the applicant’s underlying marijuana possession case was “overwhelming.” 388
S.W.3d at 888. There, the officer who conducted the traffic stop averred that the
applicant smelled of marijuana and had marijuana flakes on his shirt, and then
confessed to having marijuana in the vehicle. Id.

      In Murillo, we again affirmed denial of habeas relief based on a lack of
prejudice because the evidence in the record indicated that the State would have
had a strong case against the applicant at trial for assault of a family member.
Murillo, 389 S.W.3d at 929. The applicant’s trial counsel testified that the offense
report from the State’s file provided that the responding officer either viewed the
applicant actually assaulting the complainant or saw him “on top of her.” Id. In
addition, his trial counsel stated that the offense report indicated the responding
officer heard the complainant screaming. Id. This offense report was included in
the case file at the time the applicant’s trial counsel spoke with him about his plea
option. Id. The applicant did not dispute the contents of the offense report. Id.

      Here, we have undisputed evidence of appellant’s guilt. First, appellant’s
trial counsel, DuBroeck, testified that appellant’s case was “straight forward” and
it was her opinion that both the traffic stop and search that resulted in appellant’s
arrest were legal. Further, the offense report describing the incident, which
DeBroeck testified was in appellant’s file, indicated that the officer detaining
appellant noticed “a strong odor of marijuana coming from his clothing”; when
asked if he had been smoking marijuana, appellant admitted to “smoking weed”

                                          9
earlier in the day. Cf. Fassi, 388 S.W.3d at 888 (officer averred that applicant
smelled of marijuana and had marijuana flakes on his shirt). 4 The offense report
further indicated that one of the officers “while conducting an inventory” search of
the vehicle “found a small bag of marijuana wedged between the ceiling and the
windshield on the front passenger side”; appellant did not dispute that he was the
front-seat passenger in the vehicle or otherwise deny that the marijuana was his.
Finally, the offense report indicated that the driver of the car stated that the
marijuana belonged to appellant. All of these facts indicate there was fairly strong
evidence of appellant’s guilt. And, as in Murillo, appellant has not disputed the
contents of the offense report. See Murillo, 389 S.W.3d at 929. Thus, this
circumstance weighs against a finding of prejudice.

       2. Factual or legal defenses

       Courts also consider whether the applicant had any defenses when analyzing
the Strickland prejudice prong. In Fassi, this court noted that “appellant presented
no affirmative evidence that he had any factual or legal defenses to the charge” of
marijuana possession. 388 S.W.3d at 889. Likewise, in Murillo, the applicant
presented no affirmative evidence that he had any factual or legal defenses to the
charge, or that he believed he was not guilty of assaulting his wife. 389 S.W.3d at
929.

       Here, appellant asserted in his affidavit in a conclusory fashion that he “had
a defense to the charge.” He does not indicate what that defense was or provide
any facts or details regarding his alleged “defense.”5 Further, the trial court was

       4
         Although we do not have an affidavit from the arresting officer as we did in Fassi,
appellant did not dispute the facts as reported in the offense report or claim that he was not guilty
of the charges.
       5
        On appeal, appellant asserts that the State lacked a strong case against him because
there were insufficient “affirmative links” tying him to the marijuana. See Ly v. State, 273
                                                 10
free to reject appellant’s averment as not credible, and we must defer to that
determination because it is supported by the record. 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.”). Both Paz and DuBroeck testified that, had appellant
maintained his innocence and insisted he go to trial, it was their policy to proceed
to trial. Thus, there is nothing to support appellant’s conclusory claim that he “had
a defense.” This factor weighs against a finding of prejudice.

       3. Immigration status as primary concern

       Another factor courts consider when determining prejudice is whether the
applicant presented evidence indicating that the immigration consequences of his
plea were his “paramount concern.” Fassi, 388 S.W.3d at 889. In Fassi, we
considered that the applicant presented no evidence he had “expressed his concern
about deportation to the trial court, plea counsel, or anyone else at the time of his
plea.” Id.

       Cases in which courts have found prejudice present different circumstances
because, in those cases, the applicant presented other evidence tending to support
that immigration consequences were his primary concern. See id.; see also Ex
parte Elizondo–Vasquez, 361 S.W.3d 120, 121, 122–23 (Tex. App.—Texarkana
2011, no pet.) (finding prejudice when plea counsel testified that the applicant’s

S.W.3d 778, 781–82 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (providing list of
relevant facts that may affirmatively link an accused to contraband). But, as noted above,
appellant did not dispute the facts as presented in the offense report or attempt to challenge the
links between him and the marijuana. Because there is no evidence in the record of appellant
raising this defense or bringing it to the attention of the trial court, these appellate allegations
cannot support an ineffective assistance of counsel claim. See Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999) (“Any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”).

                                                11
“primary concern was how the charge and any resulting incarceration would
impact his status as an immigrant” but that he failed to provide his client with a
definitive answer; the applicant also testified that his immigration status was his
primary concern and that he discussed it with his trial counsel at every meeting).

      Here, the record contains no evidence that appellant expressed to anyone
that deportation was his “primary” concern. Although there is evidence that
appellant and his mother had at least some concern about the immigration effects
of appellant’s case, the record also establishes that appellant specifically “chose to
plea” and “declined to go to trial” despite his trial counsel’s advising him that if he
pleaded guilty that he would be “mandatorily detained” and that his second
conviction for possession of marijuana “could be used to deport him,” among other
potential adverse immigration consequences. Further, the trial court was free to
entirely disbelieve the representations by appellant and his mother concerning
appellant’s priorities; given the evidence indicating appellant made a calculated
and informed decision between his options to accept the State’s plea offer or
proceed to trial, the trial court was justified in doing so. See Ex parte Obi, 446
S.W.3d 590, 599 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (“The trial
court did not credit Obi’s self-serving testimony; and given the conflicting
evidence, it was free to disregard it.”); Fassi, 388 S.W.3d at 888 (“[T]he habeas
court was free to disbelieve appellant’s self-serving testimony that he would not
have pled guilty if he had been aware of the immigration consequences of his
plea.”); Moreno, 382 S.W.3d at 529 (finding no prejudice where applicant’s “total
inaction upon receiving repeated verbal and written warnings about the possibility
of his deportation” indicated “his immigration status was not his primary concern
upon pleading guilty”). Accordingly, we conclude that this factor weighs against a
finding of prejudice.


                                          12
       4. Plea deal compared to penalties risked at trial

       When analyzing prejudice, courts also consider the circumstances of the plea
deal compared to what penalties the applicant risked by going to trial. In this case,
as in Fassi, appellant was faced with a maximum of six months’ confinement and a
$2,000 fine for Class B misdemeanor marijuana possession. See Tex. Health &
Safety Code Ann. § 481.121(b)(1); Tex. Penal Code Ann. § 12.22; see also Fassi,
388 S.W.3d at 883. In Fassi, in affirming based on the prejudice prong, we
reasoned that “a rational noncitizen would not likely risk a trial if the result is near-
certain conviction—under those circumstances, the defendant faces a harsher
criminal penalty in addition to the same immigration consequences of pleading
guilty.” 388 S.W.3d at 888.

       Here, the record reflects that appellant received a plea deal of three days,
with two days’ time-served, and a $100 fine.6 Here, appellant was faced with a
much harsher criminal penalty had he been found guilty, in addition to the same
immigration consequences of pleading guilty; either way, he was deportable.
Further, appellant had very recently completed deferred adjudication for another
misdemeanor possession of marijuana offense. His trial counsel acknowledged that
appellant was informed that offense would have been admissible during
punishment and that this evidence may have subjected appellant to a sentence up to
the maximum term.

       On this record, where there was strong evidence of guilt and no evidence of
any factual or legal defenses to the crime, the odds of acquittal, and thus of
avoiding deportation, appear to have been quite slim. Appellant faced the choice of


       6
        In comparison, we found no prejudice in Fassi where the applicant was offered a plea
agreement that involved six months’ deferred adjudication probation and a $150 fine. 388
S.W.3d. at 883.

                                            13
whether he wanted to take a plea deal through which he could receive minimal jail
time and face presumptively mandatory deportation or reject the deal and proceed
to trial, where there was a significant likelihood he would be convicted, and where
he risked the exact same deportation consequence and a harsher penalty of up to
six months’ in jail.

       In sum, aside from appellant’s self-serving statement that he would have
insisted his counsel take his case to trial had he known he would be deported,7 he
presented no other evidence corroborating his position or that it would have been
rational to reject a plea deal under the circumstances. See Murillo, 389 S.W.3d at
93 (citing Ex parte Ali, 368 S.W.3d 827, 840–41 (Tex. App.—Austin 2012, pet.
ref’d)); Fassi, 388 S.W.3d at 890. After applying the factors described above, we
conclude that appellant failed to establish any prejudice from his counsel’s
allegedly deficient performance; i.e., appellant has failed to prove that a decision to
reject the plea deal would have been rational under the circumstances.

       We overrule appellant’s sole issue.




       7
         Appellant’s mother also averred that appellant would not have pleaded guilty. At the
hearing, however, the habeas court sustained a “speculation” objection to her testimony to this
same effect. Thus, it appears that the habeas court did not credit appellant’s mother’s testimony
on this subject.

                                               14
       4. Plea deal compared to penalties risked at trial

       When analyzing prejudice, courts also consider the circumstances of the plea
deal compared to what penalties the applicant risked by going to trial. In this case,
as in Fassi, appellant was faced with a maximum of six months’ confinement and a
$2,000 fine for Class B misdemeanor marijuana possession. See Tex. Health &
Safety Code Ann. § 481.121(b)(1); Tex. Penal Code Ann. § 12.22; see also Fassi,
388 S.W.3d at 883. In Fassi, in affirming based on the prejudice prong, we
reasoned that “a rational noncitizen would not likely risk a trial if the result is near-
certain conviction—under those circumstances, the defendant faces a harsher
criminal penalty in addition to the same immigration consequences of pleading
guilty.” 388 S.W.3d at 888.

       Here, the record reflects that appellant received a plea deal of three days,
with two days’ time-served, and a $100 fine.6 Here, appellant was faced with a
much harsher criminal penalty had he been found guilty, in addition to the same
immigration consequences of pleading guilty; either way, he was deportable.
Further, appellant had very recently completed deferred adjudication for another
misdemeanor possession of marijuana offense. His trial counsel acknowledged that
appellant was informed that offense would have been admissible during
punishment and that this evidence may have subjected appellant to a sentence up to
the maximum term.

       On this record, where there was strong evidence of guilt and no evidence of
any factual or legal defenses to the crime, the odds of acquittal, and thus of
avoiding deportation, appear to have been quite slim. Appellant faced the choice of


       6
        In comparison, we found no prejudice in Fassi where the applicant was offered a plea
agreement that involved six months’ deferred adjudication probation and a $150 fine. 388
S.W.3d. at 883.

                                            13
