                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00378-CR

                            EX PARTE JOSE J. LOPEZ



                          From the 85th District Court
                              Brazos County, Texas
                       Trial Court No. 10-01439-CRF-85-A


                          MEMORANDUM OPINION


      Jose Lopez appeals from the trial court’s order denying his application for writ of

habeas corpus. We affirm.

                                   Background Facts

      Lopez pleaded guilty to the offense of attempted delivery of a controlled substance

to a minor. The trial court accepted Lopez’s guilty plea, deferred adjudication of guilt,

and placed Lopez on community supervision for five years with a $1000 fine. Lopez filed

an application for writ of habeas corpus pursuant to article 11.072 of the Texas Code of

Criminal Procedure alleging that his trial counsel provided ineffective assistance of

counsel by failing to inform him of the immigration consequences of his plea. See TEX.
CODE CRIM. PRO. ANN. art. 11.072 (West 2015). The trial court ordered Lopez’s trial

counsel to file an affidavit responding to the allegations, and trial counsel complied. The

trial court denied Lopez’s application for writ of habeas corpus without an evidentiary

hearing.

                                  Ineffective Assistance

       In his first issue, Lopez argues that the trial court erred in denying his application

for writ of habeas corpus because his trial counsel rendered ineffective assistance of

counsel. Lopez contends that his trial counsel failed to advise him that his “plea of guilty

would make him preemptively deportable, and did not fully advise him of the significant

immigration consequences of a plea to a controlled substance offense.”

       A plea of guilty is not voluntary if it was made as a result of ineffective assistance

of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012). To obtain

habeas-corpus relief on the ground of ineffective assistance of counsel, appellant must

show: (1) counsel’s performance fell below an objective standard of reasonableness;

and (2) a reasonable probability exists that, but for counsel’s errors, the result would

have been different. See Padilla v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 1482, 176

L. Ed. 2d 284 (2010); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-

65, 80 L. Ed. 2d 674 (1984). A defendant has the right to effective assistance of counsel

during plea proceedings. Ex Parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).

In the context of a complaint about counsel’s plea advice, appellant must show: (1)

counsel’s plea advice did not fall within the range of competence demanded of attorneys

in criminal cases; and (2) there is a reasonable probability that, but for counsel’s deficient

Ex parte Lopez                                                                          Page 2
performance, appellant would have insisted on going to trial rather that accepting the

offer and pleading guilty. Id.

         To satisfy his burden under the first prong of the test, appellant must overcome

the strong presumption that counsel’s performance fell within the wide range of

reasonable professional assistance and might be considered sound trial strategy.

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065; Ex Parte Harrington, 310

S.W.3d at 458. Appellant bears the burden of proving counsel was ineffective by a

preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).     The reasonableness of counsel’s performance is judged under prevailing

professional norms. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2064-5. Our

review must be highly deferential to trial counsel and avoid the deleterious effects

of hindsight. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065; Thompson v.

State, 9 S.W.3d at 813. Under the second prong of the test, a reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland v. Washington,

466 U.S. at 694, 104 S.Ct. at 2068; Thompson v. State, 9 S.W.3d at 812.

         In Padilla v. Kentucky, the United States Supreme Court held that "advice regarding

deportation is not categorically removed from the ambit of the Sixth Amendment right

to counsel" and that "counsel must inform her client whether his plea carries a risk of

deportation." Padilla v. Kentucky, 559 U.S. 356, 366-7, 130 S.Ct. 1482, 176 L.Ed.2d 294

(2010). The Court stated:

                 Immigration law can be complex, and it is a legal specialty of its own.
         Some members of the bar who represent clients facing criminal charges, in
         either state or federal court or both, may not be well versed in it. There will,

Ex parte Lopez                                                                              Page 3
       therefore, undoubtedly be numerous situations in which the deportation
       consequences of a particular plea are unclear or uncertain. The duty of the
       private practitioner in such cases is more limited. When the law is not
       succinct and straightforward (as it is in many of the scenarios posited by
       Justice Alito), 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.

Padilla v. Kentucky, 559 U.S. at 369, 130 S.Ct. at 1483, 176 L.Ed.2d at 296.

       In his affidavit, Lopez’s trial counsel states that:

               At the start of our representation, Mr. Lopez advised me that he was
       not a United States citizen, and further that he was in the country illegally.
       From the beginning of his case, Mr. Lopez immigration status was a
       complicating factor. The State had offered to place Mr. Lopez on a five year
       straight probation, with a $1000 fine, 200 hours of community service, and
       ten days in jail as a condition of probation in this case. Jail time as a
       condition of probation is common in Brazos County.
               Mr. Lopez was afraid to go to county jail. In Brazos County, the
       Sheriff generally notifies Immigration and Customs Enforcement when an
       inmate is in custody and he is not in the country legally. It was therefore
       extremely likely that Mr. Lopez would have been deported if he had to
       serve these ten days. This was Mr. Lopez’s pressing concern in this case.
               On April 7, 2011, I again met with Mr. Lopez and reviewed the facts
       and discovery with him that I had received from the prosecutor. The
       prosecutor waived the requirement of serving ten days in jail if we accepted
       the offer in Court on April 8, 2011. She also made an alternate offer of a
       seven year deferred adjudication.
               On April 8, the prosecutor again agreed to lower the offer, to a five
       year deferred adjudication with no jail time. During the entire pendency of
       the case, the immigration consequences of Mr. Lopez case were considered.
       I told Mr. Lopez that there were immigration consequences to him entering
       a plea of guilt. I informed him that the deferred adjudication was certainly
       preferable to a conviction as far as Texas law is concerned, in that it is not a
       conviction, and under some circumstances can be sealed. But I also
       informed Mr. Lopez that a deferred adjudication would be considered a
       conviction for immigration purposes. I also informed him that the plea of
       guilty would be used against him, and that if he came to be in immigration
       custody, he would likely be deported, denied re-entry into the United
       States, and he would be denied naturalization or citizenship if he applied.


Ex parte Lopez                                                                            Page 4
               I reset his case to May 4, 2011. At that time, I reviewed the plea
       paperwork with Mr. Lopez again, and reiterated that his case would likely
       be used against him for immigration purposes. The Court also informed
       Mr. Lopez about the immigration consequences of his plea. The plea
       paperwork also informed Mr. Lopez of this fact.
               Because I handle many cases with non-citizens, I also try to keep up
       to date on immigration matters and how they interact with criminal cases.
       In 2011, I participated in a CLE called “Advising Immigrant Defendants
       after Padilla.” I have also read a significant number of legal materials
       dealing with this issue, have attended numerous CLE dealing with this
       issue, and have purchased publications to research this matter. My office
       frequently consults with an immigration attorney in Houston and we
       always encourage clients to retain an immigration attorney when they are
       not citizens.
               Because this case involved attempted drug dealing to a minor, I
       believed that it would be an Aggravated Felony for purposes of
       Immigration Law. That is why I advised Mr. Lopez he would be unable to
       repair his immigration status in the future. Mr. Lopez’s main concern in
       this case was the very likely probability of deportation in the event that he
       received ten days as a condition of probation. Once the prosecutor removed
       that condition, Mr. Lopez no longer wanted to go to trial.

       Lopez argues that he received ineffective assistance of counsel because his trial

counsel “failed to correctly advise [him] that his plea of guilty would constitute a

conviction under immigration law, and that pleading to the offense at issue would make

him preemptively deportable.” Trial counsel’s affidavit indicates that he informed Lopez

about the immigration consequences of his plea. He informed Lopez that the offense

would be considered an aggravated felony under immigration law and that he would

likely be deported. Trial counsel further informed Lopez that he would be denied re-

entry into the United States and denied naturalization or citizenship if he applied.

       Lopez failed to prove, by a preponderance of the evidence, that his counsel's

advice was outside the range of competent representation demanded of attorneys in

criminal cases. We overrule the first issue.

Ex parte Lopez                                                                         Page 5
                               Trial Court Admonishments

       In the second issue, Lopez argues that the “admonishments of the trial court, or

the plea papers, cannot substitute for the advice of trial counsel, even under a ‘totality of

the representation analysis.’” Article 23.16 of the Code of Criminal Procedure provides

that prior to accepting a guilty plea, the trial court shall admonish the defendant of “the

fact that if the defendant is not a citizen of the United States of America, a plea of guilty

or nolo contendere for the offense charged may result in deportation, the exclusion from

admission to this country, or the denial of naturalization under federal law.” TEX. CODE

CRIM. PRO. ANN. Art. 26.13 (a) (4) (West Supp. 2014). The trial court may make the

admonishments either orally or in writing. TEX. CODE CRIM. PRO. ANN. Art. 26.13 (d)

(West Supp. 2014). When the trial court substantially complies with article 26.13, it

creates a prima facie showing that the defendant’s guilty plea was entered knowingly

and voluntarily. See Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992). The trial

court admonished Lopez as follows:

       Trial Court: Mr. Lopez, ah, where were you born?

       Lopez: In Mexico.

       Trial Court: … are you a US citizen?

       Lopez: No ma’am

       Trial Court: Do you understand that by pleading guilty, it could affect your
       ability to become a US citizen?

       Lopez: Yes ma’am.




Ex parte Lopez                                                                         Page 6
         Trial Court: That they can use this, ah, I know it’s a call for deferred and if
         I accept it, it will be deferred but they could use this to keep you from
         obtaining your citizenship?

         Lopez: I understand, ma’am.

         Trial Court: Do you also understand that it could be used to deport you?

         Lopez: Yes ma’am.

         Trial Court: It could be used that if you are deported, it could be used to
         keep you from being allowed legal re-entry back into this country? You
         understand that?

         Lopez: Yes ma’am.

         Trial Court: Understanding these things do you still wish to ask the court
         to accept this agreement?
         Lopez: Yes ma’am.

         Lopez’s trial counsel informed Lopez of the immigration consequences of his plea.

The trial court further admonished Lopez on the immigration consequences of his plea,

and Lopez indicated that he understood the consequences. The record supports the trial

court’s finding that Lopez “was warned, prior to his plea, about the immigration

consequences of his plea by: his attorney, Louis Gimbert; the trial court, and the plea

papers that he signed and acknowledged that he understood.” We overrule the second

issue.

                                     Evidentiary Hearing

         In the third issue, Lopez complains that the trial court erred in determining that

there was no fact in issue requiring an evidentiary hearing. Article 11.072, section 6

provides in pertinent part:



Ex parte Lopez                                                                             Page 7
       (a) Not later than the 60th day after the day on which the state's answer is
       filed, the trial court shall enter a written order granting or denying the relief
       sought in the application.

       (b) In making its determination, the court may order affidavits, depositions,
       interrogatories, or a hearing, and may rely on the court's personal
       recollection.

TEX. CODE CRIM. PRO. ANN. art. 11.072, § 6(a)-(c) (West 2015). Article 11.072 does not

require an evidentiary hearing to resolve controverted facts. See Ex parte Gonzalez, 323

S.W.3d 557, 558 (Tex.App.-Waco 2010, pet. ref’d). The record shows that Lopez filed an

affidavit in support of his application for writ of habeas corpus. Lopez also filed the

affidavit of an attorney who specializes in immigration law in support of his application

for writ of habeas corpus. Lopez’s trial attorney filed an affidavit in response to the

allegations. The record also included a transcript of the of the plea hearing. Lopez has

not shown that the trial court abused its discretion in denying the evidentiary hearing.

We overrule the third issue.

                                         Conclusion

       We affirm the trial court’s judgment.




                                           AL SCOGGINS
                                           Justice




Ex parte Lopez                                                                             Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 13, 2015
Do not publish
[CR25]




Ex parte Lopez                                Page 9
