Affirmed and Memorandum Opinion filed July 3, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00765-CR

                EX PARTE BLANCA CASTILLO SANCHEZ


                   On Appeal from the 412th District Court
                          Brazoria County, Texas
                       Trial Court Cause No. 66843-A


                 MEMORANDUM OPINION

      Blanca Castillo Sanchez appeals an order denying her post-conviction
application for a writ of habeas corpus on the ground that she received ineffective
assistance of counsel. Concluding that appellant failed to prove she was prejudiced
by any alleged deficient performance of counsel, we affirm.

                                I. BACKGROUND

      In March 2012, appellant, a citizen of Mexico, pleaded guilty, pursuant to a
plea agreement, to the state jail felony offense of aggregated theft of property
having a value of at least $1,500 but less than $20,000. The trial court placed
appellant on deferred-adjudication community supervision for three years, assessed
a fine, and ordered appellant to make restitution. Appellant’s evidence indicates
that, in January 2013, an immigration judge ordered that appellant be deported.

       Subsequently, appellant filed an application for writ of habeas corpus,
contending her plea counsel was ineffective by failing to advise appellant
regarding the immigration consequences of her guilty plea. The trial court did not
hold a hearing but considered the application based on the written evidence and
took judicial notice of its file.        On July 25, 2013, the trial court signed an
“Amended Order and Findings of Fact,” denying the habeas corpus application.1

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       An applicant seeking post-conviction habeas corpus relief bears the burden
of establishing by a preponderance of the evidence that the facts entitle her to
relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In
reviewing the trial court’s decision to grant or deny habeas corpus relief, we view
the facts in the light most favorable to the trial court’s ruling. Ex parte Peterson,
117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other
grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We will
uphold the trial court’s ruling absent an abuse of discretion. Id. The trial court is
the original fact finder in a habeas corpus proceeding. Ex parte Harrington, 310
S.W.3d 452, 457 (Tex. Crim. App. 2010). We afford almost total deference to the
trial court’s determination of the historical facts that are supported by the record,
especially when the factual findings are based on an evaluation of credibility and
demeanor. Peterson, 117 S.W.3d at 819. We afford the same deference to the trial


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          The order was entitled “Amended” because the trial court (1) withdrew one previous
order after appellant complained she lacked an opportunity to submit affidavits, and (2) withdrew
another previous order based on an error therein.

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court’s application of law to the facts if the resolution of the ultimate questions
turns on an evaluation of credibility and demeanor.       Id. If resolution of the
ultimate questions turns on application of legal standards, we review the decision
de novo. See id.

      The test for determining the validity of a guilty plea is whether it represents
a “voluntary and intelligent choice among the alternative courses of action open to
the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). 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). The two-
pronged Strickland test applies when a habeas applicant challenges a guilty plea
based on ineffective assistance of counsel. Ex Parte Luna, 401 S.W.3d 329, 333
(Tex. App.—Houston [14th Dist.] 2013, no pet.). The applicant must show by a
preponderance of the evidence (1) plea counsel’s performance fell below the
objective standard of reasonableness, and (2) there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); see
Luna, 401 S.W.3d at 333.

      In Padilla v. Kentucky, the Supreme Court of the United States held that
“counsel must inform her client whether his plea carries a risk of deportation.” 559
U.S. 356, 374 (2010). Counsel’s performance is deficient under the first Strickland
prong if counsel fails to advise a noncitizen client about deportation consequences
that are “truly clear.” Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing Padilla, 559 U.S. at 368–69; Aguilar v. State,
375 S.W.3d 518, 524 (Tex. App.—Houston [14th Dist.] 2012), rev’d on other
grounds, 393 S.W.3d 787 (Tex. Crim. App. 2013)). Thus, plea counsel is deficient
if counsel merely mentions the possibility of deportation when the relevant

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immigration provisions are presumptively mandatory. Id. (citing Aguilar, 375
S.W.3d at 524). However, a defendant complaining that plea counsel failed to
advise her regarding such deportation consequences must also satisfy the second
Strickland prong by proving prejudice. See Strickland, 466 U.S. at 697; Luna, 401
S.W.3d at 333. Under that prong, the defendant must show there is a reasonable
probability that, but for counsel’s errors, she would not have pleaded guilty and
would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); Harrington, 310 S.W.3d at 458. This standard requires the defendant to
show that a decision to reject the plea agreement would have been rational under
the circumstances. See Padilla, 559 U.S. at 372; Fassi, 388 S.W.3d at 886–87.

                                   III. ANALYSIS

      In two interrelated issues, appellant contends that plea counsel failed to
properly advise appellant regarding the immigration consequences of her guilty
plea. Appellant complains that counsel advised appellant the plea “could” result in
deportation rather than advising the plea would “probably” or was “almost certain
to” result in deportation or that deportation was “mandatory.” Appellant argues
that, if counsel had advised appellant regarding the “actual” immigration
consequences, instead of the “possibilities,” appellant would have rejected the plea
bargain and insisted on proceeding to trial.

A.    The Evidence and the Trial Court’s Findings

      To support her habeas application, appellant relied on her own affidavit,
affidavits of plea counsel and an immigration attorney, and a Harris County district
court form.

      In her affidavit, appellant averred, in pertinent part:

      I was advised by my appointed attorney . . . to enter a plea of guilty to
      the felony theft and received three (3) years state jail deferred
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      adjudication probation. At her instructions[,] I signed the necessary
      court documents and entered a plea of guilty to the judge and was
      sentenced. I had previously informed [plea counsel] that I was from
      Mexico and not a citizen.

      [Plea counsel] was not an experienced immigration attorney and told
      me nothing of the legal consequences under the immigration laws of
      the U.S. to the plea of guilty I made. Had she done so, I would have
      refused to make the plea and insisted on a trial as that would have
      been my only alternative to avoid deportation.

      Plea counsel executed two affidavits relative to the habeas application: one
submitted by appellant; and a separate one filed by counsel in response to a trial
court order.    In these affidavits collectively, counsel swore that (1) during
discussions before the plea, appellant admitted she was in the United States
illegally, (2) while reviewing the proposed plea documents, counsel advised
appellant that the plea would be treated as a conviction by immigration authorities
and she “could be” deported, (3) counsel advised appellant to contact an
immigration attorney “if she was not sure,” (4) counsel advised nothing more than
what the plea documents stated and performed no research on appellant’s specific
immigration situation, and (5) it is counsel’s policy to explain to a non-citizen
client that an illegal resident has no right to contest deportation proceedings.

      The affidavit of the immigration attorney indicates she was retained solely to
provide an opinion for purposes of the habeas application. The attorney explained
that (1) appellant’s plea and deferred adjudication subjected her to deportation, (2)
she was ordered deported as a result of the conviction, and (3) any “competent
criminal attorney” would have sought advice from immigration counsel before
recommending that appellant plead guilty. See State v. Guerrero, 400 S.W.3d 576,
587–88 (Tex. Crim. App. 2013) (recognizing guilty plea resulting in deferred
adjudication is final for purposes of federal immigration law and Padilla applies

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even when adjudication is deferred and the charges are later dismissed); see also 8
U.S.C. § 1101(a)(48).

      Finally, appellant submitted a blank form purportedly used by Harris County
district courts to inform defendants of immigration consequences of pleas in
accordance with Padilla.

      In its answer to the habeas application, the State presented the transcript of
appellant’s plea proceeding, and the trial court took judicial notice of the transcript.
The following exchange occurred during the proceeding:

      THE COURT:           Are you a citizen of the United States of America?
      [APPELLANT]:         No.
      THE COURT:           Do you understand that by proceeding with this
                           plea you can be subject to deportation?
      [APPELLANT]:         Yes.
      THE COURT:           And if you are deported you would be denied
                           reentry into the United States.
      [APPELLANT]:         Yes.
      THE COURT:           And you will be denied the right to become a
                           United States citizen. Do you understand all that?
      [APPELLANT]:         Yes.
      THE COURT:           Have you and your attorney discussed the
                           probability that you will be deported?
      [APPELLANT]:         Yes.
      THE COURT:           And even if you are deported do you still wish
                           to go forward with this plea?
      [APPELLANT]:         Yes.
      THE COURT:           Even if you will be deported you still want to go
                           forward?
      [APPELLANT]:         Yes.



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      THE COURT:          [Counsel], in your opinion is your client competent
                          to stand trial?
      [COUNSEL]:          I believe she is, Your Honor.
      THE COURT:          In your opinion did she fully understand the
                          immigration consequences of this plea?
      [COUNSEL]:          I believe she did. We went over it in my office and
                          then again last week when we -- or earlier this
                          week when we went over the plea papers.
      ***
      THE COURT:          All right. Based on the evidence and testimony
                          before me I am going to find that you are a citizen
                          -- that while you are not a citizen of the United
                          States of America you have been properly advised
                          as to the consequences of your plea and that you
                          have elected voluntarily to go forward with
                          your plea even if this results in your
                          deportation, that you are competent to stand trial,
                          that the evidence is sufficient to sustain your
                          conviction beyond a reasonable doubt, that
                          jurisdiction and venue are proper and that you have
                          been properly arraigned. Do both you and your
                          attorney agree and acknowledge that all of
                          these findings by the Court are true and
                          correct?
      [APPELLANT]:        Yes.
      [COUNSEL]:          We do, Your Honor.

(emphasis added).

      In the order denying the habeas application, the trial court made, inter alia,
the following findings of fact:

      4)     [Before the guilty plea] while reviewing the plea papers with
             [appellant], [counsel] explained to her that although she was not
             being found guilty in the present case in the State Court, her
             plea could result in her deportation.

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      6)    [Appellant] was duly admonished by this Court at the time of
            [appellant’s] plea that the plea of guilty could result in her
            deportation, or act as a bar to her re-entering the United States
            should she ever choose to leave this country. [Appellant] told
            the Court that she and her attorney had discussed the
            probability that she would be deported and twice told the Court
            that she wished to proceed with the plea even if she would be
            deported.
      7)    [Appellant] and her counsel both agreed and acknowledged that
            the Court’s findings that “while you are not a citizen of the
            United States of America you have been properly advised as to
            the consequences of your plea and that you have elected
            voluntarily to go forward with your plea even if this results in
            your deportation” was true and correct.
      After reciting those findings, the trial court concluded as a matter of law that
“there is no evidence that the alleged deficient performance of . . . counsel in any
way prejudiced her case.”      Then, the court reiterated the following finding
(separate from the enumerated findings):

      [Appellant] was duly admonished, both prior to and at the time of her plea,
      of the fact that her guilty plea in this matter could result in her removal or
      deportation from the United States, and that she insisted on going forward
      with the plea even if it resulted in her deportation.

Therefore, the trial court essentially concluded that, even if counsel performed
deficiently by advising appellant only that she “could” be deported, appellant
wished to plead guilty even if it meant she would be deported.

B.    Appellant’s Failure to Prove Prejudice

      Preliminarily, we note that, in one finding (No. 4), the trial court stated that
counsel advised appellant she “could” be deported. However, in another finding
(the second sentence of No. 6), the trial court stated that appellant represented at
the plea proceeding that counsel informed her of the “probability” she “would” be
deported—language more consistent with the advice appellant claims she should
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have received although not as strong as the “almost certain to” or “mandatory”
language that was allegedly lacking.              The above-cited transcript supports this
finding. Regardless, we need not consider whether counsel gave advice sufficient
to comply with Padilla because we uphold the trial court’s decision that appellant
failed to satisfy the second Strickland prong. See Strickland, 466 U.S. at 697 (“[A]
court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.”).

       The only evidence supporting appellant’s claim of prejudice is her averment
that, if she had been informed of the immigration consequences, she “would have
refused to make the plea and insisted on a trial as [her] only alternative to avoid
deportation.” Appellant argues that the record contains no evidence discounting
her averment. However, the trial court was free to reject appellant’s averment as
not credible, and we must defer to that determination because it is supported by the
record. Peterson, 117 S.W.3d at 819.2

       We first note that appellant’s initial averment that counsel “said nothing”
about the immigration consequences is in sharp contrast to (1) counsel’s affidavits,
and (2) appellant’s representations at the plea proceeding that counsel at least
advised the plea “could,” or there was a “probability” it would, result in
deportation.     We recognize this inconsistency is directly relevant to whether

       2
          In an additional finding of fact, the trial court stated, “[Appellant] did not file an
affidavit in response to the Court’s Order and her application cannot be considered as an
affidavit as it is only sworn to ‘on information and belief’ by [appellant’s] attorney and as such
the verification is defective to constitute an affidavit.” The trial court was apparently referencing
that appellant did not file an additional affidavit in response to the court’s previous order stating
it would consider the application based on affidavits and ordering appellant and plea counsel to
submit affidavits. However, appellant did file an affidavit with her application. We will assume,
without deciding, that the trial court considered that affidavit because we uphold its decision to
reject appellant’s averment in that affidavit pertinent to the prejudice issue.

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counsel’s performance was deficient (whether the advice was sufficient) rather
than the prejudice inquiry. Nevertheless, the trial court could have considered this
inconsistency to question appellant’s overall credibility on all issues, including her
averment that she would not have pleaded guilty if she had been advised of the
immigration consequences.

      Additionally, the transcript contains evidence negating appellant’s averment.
Specifically, the trial court’s questions were not limited to ascertaining whether
appellant wished to plead guilty even if it meant she “could” be deported. Instead,
in the above-emphasized portions, the trial court confirmed appellant wished to
plead guilty even if it meant she would be deported.

      Appellant suggests the trial court’s admonishments do not substitute for the
requirement that counsel explain the immigration consequences because the period
critical to appellant’s plea decision was the counseling phase. However, we do not
consider the trial court’s admonishments as a substitute for the performance
required of counsel or hold that they cured any prejudice as a matter of law.
Rather, we rely on the exchange between appellant and the trial court as
contradicting her averment that she would not have pleaded guilty if she had
known it would result in deportation.

      Additionally, appellant presented no evidence that it would have been
rational to reject the plea agreement and proceed to trial if counsel had properly
advised her regarding the immigration consequences of the plea. The plea resulted
in deferred adjudication and no jail time. If appellant had been found guilty after a
trial, the punishment range was confinement in state jail for 180 days to two years.
See Tex. Penal Code Ann. § 12.35(a) (West Supp. 2013). Appellant was subject to
deportation under either scenario, even if she received probation after a guilty
verdict. See Luna, 401 S.W.3d at 335; see also 8 U.S.C. § 1101(a)(48). Thus,

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appellant risked a harsher penalty plus deportation if she were found guilty after a
trial.       Appellant does not maintain her innocence or assert and present any
evidence that she had a plausible defense to the charge. In fact, at the plea
proceeding, appellant acknowledged she was pleading guilty because she was
guilty. The record is otherwise silent regarding the strength of the State’s case.
Accordingly, appellant has not shown it would have been more rational to proceed
to trial because there was a likelihood of acquittal and thus avoiding deportation.3
See Ex Parte Chavez, No. 05-12-01234-CR, 2013 WL 2726013, at *4 (Tex.
App.—Dallas Feb. 13, 2013, no pet.) (mem. op., not designated for publication),
cert. denied, 134 S. Ct. 527, 187 L. Ed. 2d 368 (2013) (holding habeas applicant
did not show prejudice from counsel’s alleged failure to warn of deportation
consequences of guilty plea where record was silent on strength of State’s case,
appellant presented no evidence she had a defense, and thus record supported that
appellant would face same deportation consequences after imprisonment that she
faced by accepting plea bargain and receiving deferred adjudication).

         Moreover, appellant presented no specific evidence that avoiding
deportation was her primary concern and thus she was willing to risk a jury trial
and a harsher penalty to possibly obtain an acquittal and avoid deportation. The
trial court could have inferred that avoiding deportation was not appellant’s
primary concern because (1) she did not follow plea counsel’s recommendation to
consult an immigration attorney if she were concerned about that issue, and (2) at
the plea proceeding, she did not express any concern about deportation after the
         3
           The dialogue at the plea proceeding indicates appellant was charged with theft for
allegedly providing false information when obtaining food stamps. A case report from the Texas
Health and Human Services Commission was presented at the proceeding. However, the report
is not attached to the transcript of the proceeding presented by the State in answer to the habeas
application or otherwise in the record. Regardless, it was appellant who bore the burden to show
a reasonable probability she might have avoided deportation by proceeding to trial because she
was not guilty of the offense. See Strickland, 466 U.S. at 694; Richardson, 70 S.W.3d at 870.

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trial court’s repeated admonishments concerning the possibility. See Ex parte
Murillo, 389 S.W.3d 922, 930 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(holding habeas applicant failed to prove prejudice from counsel’s alleged failure
to advise of immigration consequences of guilty plea and considering, among other
factors, there was no evidence that avoiding deportation was applicant’s primary
concern).

      In summary, because appellant failed to prove prejudice resulting from
counsel’s allegedly deficient performance, the trial court did not abuse its
discretion by denying her application for writ of habeas corpus. We overrule both
of appellant’s issues.

      We affirm the trial court’s Amended Order.




                                     /s/    John Donovan
                                            Justice



Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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