      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00710-CR



                                        Ex parte Hao Nguyen


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
    NO. D-1-DC-09-300304, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Hao Nguyen appeals from the trial court’s order denying relief in an article 11.072

post-conviction habeas corpus proceeding. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005).

In a single point of error, Nguyen asserts that he is entitled to habeas relief because ineffective

assistance of counsel rendered his guilty plea involuntary. We affirm the trial court’s denial of relief.


                                          BACKGROUND

                The record reflects that Nguyen’s conviction stemmed from his attack on Pierre Hulan

at a karaoke bar.1 Nguyen and Hulan had been in a previous disagreement and had gone outside with

the owner of the bar to talk. At some point during that conversation, the owner told Nguyen to leave.

Nguyen left. However, he returned to the bar a few minutes later with a machete. He struck Hulan

in the forehead with the machete and then fled the scene. Police found the machete outside the bar.




        1
           Because Nguyen pled guilty pursuant to a plea agreement, the underlying facts of the
offense were not developed at trial. The facts recited herein are taken from the probable cause
affidavit contained in the record and the testimony at the writ hearing.
Hulan was transported to the hospital by ambulance where he received two layers of stitches to close

the wound on his forehead.

               Nguyen was indicted for aggravated assault with a deadly weapon causing bodily

injury, a 3g offense.2 See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). Subsequently, Nguyen

entered a negotiated plea of guilty to the offense of aggravated assault causing serious bodily injury,

a non-3g offense.3 See id. § 22.02(a)(1). The trial court accepted Nguyen’s plea and sentenced him

in accordance with the negotiated plea agreement for “shock” probation—a ten-year sentence,

suspended after serving 180 days in the Institutional Division of the Texas Department of Criminal

Justice, and placement on community supervision for ten years. See Tex. Code Crim. Proc. Ann.

art. 42.12 § 6 (West Supp. 2011). At the time of the offense and guilty plea Nguyen was a lawful

permanent resident alien of the United States.




       2
          A “3g offense” refers to a felony enumerated in article 42.12 § 3g(a)(1) of the Texas Code
of Criminal Procedure or a felony which involves an affirmative deadly weapon finding under article
42.12 § 3g(a)(2) reflecting that the defendant used or exhibited a deadly weapon during the
commission of the offense. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(1)-(2) (West Supp.
2011); Tex. Penal Code Ann. § 1.07(17) (West Supp. 2011). Such a felony carries certain
consequences to the accused due to the serious nature of the offense. First, a person convicted of
a 3g felony offense is not eligible for community supervision from the judge. See Tex. Crim. Code
Proc. Ann. art. 42.12 § 3g (West Supp. 2011). Consequently, neither is such an individual eligible
for “shock” probation. State v. Posey, 330 S.W.3d 311, 315 (Tex. Crim. App. 2011) (trial judge may
not grant shock probation unless defendant is eligible for judge-ordered community supervision);
see Tex. Code Crim. Proc. Ann. art. 42.12 § 6 (West Supp. 2011). Further, a conviction for a 3g
offense affects parole eligibility. See Tex. Gov’t Code Ann. § 508.145(d)(1) (West Supp. 2011)
(inmate must serve one half of sentence imposed or 30 calendar years actual time before becoming
parole eligible).
       3
          The record reflects that the State amended the indictment to allege “serious bodily injury”
rather than “bodily injury” and waived the deadly weapon allegation.

                                                  2
                Eighteen months later, Nguyen filed a post-conviction application for writ of habeas

corpus pursuant to article 11.072. See Tex. Code Crim. Proc. Ann. art. 11.072. In a single ground

for relief, Nguyen asserted that he suffered ineffective assistance of counsel because of purportedly

inadequate advice concerning the immigration consequences of his plea. After conducting a hearing

on the application, the trial court denied relief and issued written findings of fact and conclusions

of law. See id. § 7(a).


                                           DISCUSSION

                In his sole point of error on appeal, Nguyen challenges the habeas court’s denial of

relief. He maintains that he met his burden of proving that ineffective assistance of counsel rendered

his guilty plea involuntary and argues that the habeas court abused its discretion in finding otherwise.


                                         Standard of Review

                To prevail in a post-conviction writ of habeas corpus proceeding, the applicant bears

the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief.

Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In reviewing a trial court’s

decision to grant or deny habeas relief, we review the facts in the light most favorable to the court’s

ruling and, absent an abuse of discretion, uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324

(Tex. Crim. App. 2006). A trial court abuses its discretion when it acts without reference to any

guiding rules or principles or when it acts arbitrarily or unreasonably.                Ex parte Ali,

No. 03-11-00323-CR, 2012 WL 1810194, at *2 (Tex. App.—Austin May 17, 2012, no pet. h.);




                                                   3
Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); see

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh’g).

                In an article 11.072 post-conviction habeas corpus proceeding, the trial judge is

the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). Thus,

in conducting our review, we afford almost total deference to the trial court’s factual findings

when supported by the record, especially when those findings are based upon credibility and

demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Thompson,

153 S.W.3d 416, 417-18 (Tex. Crim. App. 2005). In addition, we afford almost total deference to

the trial court’s application of law to the facts if the resolution of the ultimate question turns on an

evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim.

App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).

Finally, when the resolution of the ultimate question turns on the application of legal standards, we

conduct a de novo review. Id.


                                 Ineffective Assistance of Counsel

                To prevail on a claim of ineffective assistance of counsel, the defendant must show

that trial counsel’s performance was deficient and that a reasonable probability exists that the result

of the proceeding would have been different but for the deficiency. Strickland v. Washington,

466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). Any

allegation of ineffectiveness must be firmly founded in the record, and the record must demonstrate

affirmatively the alleged ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). A failure to

                                                   4
make a showing of either deficient performance or prejudice defeats an ineffective-assistance claim.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). When a defendant claims his guilty

plea is involuntary due to ineffective assistance of counsel, the defendant must show: (1) counsel’s

advice with respect to the plea offer did not fall within the wide range of competence demanded of

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

performance, the defendant would not have accepted the offer and pled guilty but would have

insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Ex parte Harrington, 310 S.W.3d

452, 458 (Tex. Crim. App. 2010).

                A defendant has the right to effective assistance of counsel in deciding whether to

enter a guilty plea. Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011), cert. denied,

131 S.Ct. 3073 (2011). A decision to enter a guilty plea based upon erroneous advice from counsel

is not voluntary or knowing. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012).

To provide effective assistance during plea proceedings, “counsel has a duty to render his best

judgment to his client about what plea to enter, and that judgment should be informed by an adequate

and independent investigation of the facts of the case.” Ex parte Reedy, 282 S.W.3d 492, 500 (Tex.

Crim. App. 2009); see Harrington, 310 S.W.3d at 458.

                It “is quintessentially the duty of counsel to provide [his] client with available advice

about an issue like deportation” and the failure to do so satisfies the first prong of the Strickland

analysis. Padilla v. Kentucky, 130 S.Ct. 1473, 1484 (2010). When federal immigration law clearly

specifies that a non-citizen defendant will be deported upon conviction of a particular offense, trial

counsel must affirmatively and correctly advise the defendant about the immigration consequences



                                                   5
of entering a guilty plea to the offense. Id. at 1483. When the consequences are “not succinct and

straightforward,” counsel’s duty is only to advise the defendant of the possibility that the plea may

carry a risk of adverse immigration consequences. Id. Counsel cannot discharge his duty

by remaining silent or refraining from providing “affirmative misadvice.” Id. at 1484; see

Moussazadeh, 361 S.W.3d at 691 (“When a serious consequence is truly clear . . . counsel has an

equally clear duty to give correct advice. Both failure to provide correct information and providing

incorrect information violate that duty.”).

               The federal immigration law applicable to this case dictates that “[a]ny alien . . . in

and admitted to the United States shall, upon the order of the Attorney General, be removed if the

alien is . . . convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). A “conviction,” with

respect to an alien, means a formal judgment of guilt where a judge has found the alien guilty or the

alien has entered a plea of guilty and the judge has ordered some form of punishment, penalty, or

restraint on the alien’s liberty. 8 U.S.C. § 1101(a)(48)(A). An “aggravated felony” includes a “crime

of violence” for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43). A

“crime of violence” includes “an offense that has as an element the use, attempted use, or threatened

use of physical force against the person or property of another.” 18 U.S.C. § 16(a). The parties do

not dispute that Nguyen’s conviction for aggravated assault is deemed an aggravated felony for

immigration purposes due to the nature of the offense and length of sentence. Nor do they dispute

that his conviction for this offense subjected him to deportation.

               At the hearing on the application for writ of habeas corpus, Nguyen called three

witnesses: Thomas Esparza, an immigration attorney; Andy Duong, his former employer; and Jason



                                                  6
McMinn, his initial retained attorney. The State called Thuy-Nhi Morel, the lawyer who served as

the interpreter at the guilty plea, and Bruce Fox, Nguyen’s trial counsel. At the conclusion of the

hearing, the habeas court found that Nguyen had failed to demonstrate ineffective assistance and

denied relief. In pronouncing its ruling, the court stated,


       Considering the record as a whole, the Court’s file, the record and transcript and the
       testimony of witnesses, the Court finds that the applicant has not met the first prong
       of Strickland, that trial counsel’s performance was not constitutionally defective --
       or that it was constitutionally defective. The Court finds it is clear from the record
       that trial counsel communicated to applicant that his plea of guilty in this case at a
       minimum carried a risk of deportation; however, moreover, it is clear from the record
       that counsel communicated and that it was understood by applicant that a plea of
       guilty would equal deportation in this case.


The habeas court subsequently entered written findings of fact and conclusions of law, and made the

following findings concerning the advice trial counsel gave to Nguyen:


       t)      Fox conferred with Applicant and informed him of his options. Fox’s notes
               reflect that he discussed both the option of going to trial (and the costs
               involved) and the option of taking the plea and deportation. Applicant then
               took some time to think about his choice.

       u)      Fox clarified that he was aware of immigration consequences on an
               aggravated felony and so informed Applicant that he was facing deportation.
               He explained to Applicant that because of this conviction, if ICE placed a
               hold on him, he would be deported.

       v)      Fox even recalled a conversation with Applicant regarding his plans upon
               returning to Vietnam and also his desire to try to remain in the U.S. long
               enough to witness the birth of his child.

       ...




                                                  7
       y)      Based on this record as a whole, including Mr. Fox’s credible testimony, this
               Court finds that Applicant was able to sufficiently communicate with counsel.

       z)      This Court further finds that Applicant was informed by counsel that he faced
               deportation as a result of this conviction.


The habeas court concluded that Nguyen failed to meet either prong of the Strickland standard

concerning Fox’s advice:


       kk)     Unlike Padilla, Applicant in this case received accurate advice from his
               attorney. Mr. Fox informed him that because of this conviction, he faced
               deportation. As such, Applicant cannot show that counsel’s advice was
               deficient and thus cannot meet the first prong of Strickland.

       ll)     Further, Applicant cannot meet the second prong of Strickland either because
               he has not convinced this Court that a decision to reject the plea offer would
               have been rational.


On appeal, Nguyen contests these findings and conclusions.

               In an affidavit accompanying his application for writ of habeas corpus, Nguyen

asserted that his trial counsel, Bruce Fox, never advised him a conviction would result in deportation.

He swore that Fox never told him that he could or would be deported if he were found guilty of

aggravated assault or that he would be deported if he accepted the deal for probation. Nguyen

expressed in his affidavit that he did not feel that he was meaningfully informed about the

immigration consequences of his plea. However, the testimony and evidence at the writ hearing

demonstrated otherwise.

               Andy Duong, Nguyen’s employer at the time of the offense who initiated Fox’s

consultation with Nguyen, was present for the initial preliminary meetings between Nguyen and Fox.



                                                   8
He testified that the subject of deportation was “broached” at those meetings as generally being a

consequence for such a serious offense. Although Duong could not remember the specific details

discussed, he indicated that the implication was apparent to him that if Nguyen was to be convicted

of this crime there was the strong likelihood of deportation. When defense counsel asked,“He didn’t

say if you are convicted, you are definitely going to be deported?,” Duong responded, “Not in those

exact words, no.” Duong later confirmed that, even at these initial consultation meetings which he

characterized as more of an opportunity to get acquainted as opposed to addressing any

consequences, “[t]he implication of deportation was there.”

               Bruce Fox, Nguyen’s trial counsel, testified at the writ hearing that even at the initial

consultation meeting he expressed to Nguyen that if Nguyen did not win this case at trial “I believed

without doubt that he was going to be deported.” His testimony reflected that he understood that the

plea bargain he negotiated with the State on Nguyen’s behalf would have Nguyen pleading to an

aggravated felony under the deportation rules. Fox testified that he talked with Nguyen about who

he had back in Vietnam and his plans after being deported. They discussed the possibility of

delaying his departure until after the birth of his child. Fox indicated that he believed immigration

authorities would put a hold on Nguyen when he went to serve his 180 days for shock probation.

He testified that he routinely put stars on the plea paperwork next to certain admonishments to

indicate a heightened focus or discussion of the subject matter. In this case, he put stars next to

the admonishment about citizenship and deportation reflecting his discussions with Nguyen

about deportation.




                                                  9
                Further, Fox testified that the notes in his case file documented the advice he gave

to Nguyen and the conversations he had with him where “I was telling him he would be deported.”

Specifically, Fox’s notes document a conversation with Nguyen and an interpreter where they

reviewed the possibilities of “TRIAL + $” or “P/B + DEPORTN.” Fox testified that these

handwritten notes represented his discussion with Nguyen about the options of going to trial or

taking the plea bargain offer: “TRIAL + $” meaning trial and its associated costs; “P/B + DPORTN”

meaning plea bargain and deportation.4 The whole of Fox’s testimony indicated that he told his

client that he would be deported. From Fox’s perspective, the only way to avoid deportation would

be to avoid conviction and he did not believe that was possible. His testimony reflects that he

communicated this to Nguyen. Fox testified that he felt that the only option for Nguyen aside from

the plea bargain he negotiated with the State would be to go to trial, be convicted of a 3g offense,

and possibly go to the penitentiary for five to ten years before being deported.

                Nguyen maintains that the habeas court’s findings and conclusions concerning the

advice Fox gave to him about deportation do not comport with the evidence of all the advice trial

counsel gave to him. First, Nguyen suggests that Fox’s advice was conditional because, he alleges,

Fox told him that he believed he would be deported if he did not try to win the case at trial.

However, Fox’s testimony at the writ hearing was that he made it clear to Nguyen, even at their

initial meetings, that “if he didn’t try and win this case that [Fox] believed without doubt that he was


       4
          Defense counsel asked Fox, “You did not document in any way, shape, or form the advice
you claim you gave that he definitely would be deported upon his conviction for aggravated assault?”
Fox responded, “That’s not true.” He explained,“[I]t says right there ‘Possibilities,’ and the second
possibility was ‘plea bargain and deportation.’ It doesn’t say, ‘plea bargain and possibly
deportation’; it says, ‘plea bargain and deportation.’”

                                                  10
going to be deported.” Fox’s advice was not to “try to win” the case at trial to avoid deportation, but

to “try and win” the case at trial. Contrary to Nguyen’s assertions, Fox’s advice was not that

deportation could be avoided through a trial, but only through winning at trial because that would

avoid a conviction. However, from Fox’s testimony at the hearing, it is clear that Fox did not believe

Nguyen could win at trial. Fox explicitly testified that Nguyen had no viable defense, no

justification for the use of deadly force. He stated, “I thought he’d get convicted of this offense. I

didn’t see any way out of that, quite frankly.” Fox’s testimony reflects that throughout the course

of his representation he communicated to Nguyen that he did not believe Nguyen could avoid a

conviction, not even through trial.

               In addition, Nguyen suggests that Fox gave conflicting advice because he “discussed

a possible asylum strategy” with him.         However, Fox’s testimony reflects that during his

conversation with Nguyen about how he came to this country and who he had back in Vietnam, Fox

simply mentioned the option of looking at the possibility of asylum. The record does not reflect a

“discussion of a possible asylum strategy,” but rather that Fox, aware that Nguyen was facing

deportation if convicted and believing Nguyen could not avoid conviction, “was looking at one point

of an angle of would he have a possibility of asylum here.” Merely mentioning the option of

possible asylum was not advice contrary to the advice that Nguyen would be deported if convicted.

Rather, from the context of Fox’s testimony, it appears it was an option mentioned as a result of

counsel’s knowledge that if convicted, Nguyen would be deported—an option to explore because

Nguyen was facing deportation upon conviction.




                                                  11
               Nguyen further suggests that he received conflicting advice because Fox advised him

that he would be deported if immigration authorities placed a hold on him. He maintains that this

constituted advice that there was a possibility that immigration authorities would not follow through

with deportation proceedings. However, while Fox testified that he advised Nguyen that if

immigration authorities placed a hold on him, he would be deported, Fox further testified that he

communicated to Nguyen that he fully expected immigration authorities to place a hold on him. In

fact, Fox’s testimony reflected that attempts were made to schedule sentencing after the birth of

Nguyen’s child because Fox anticipated immigration authorities would put a hold on Nguyen when

he went to serve his 180 days and Nguyen would not return at all once incarcerated. We do not

construe Fox’s statement that if immigration authorities placed a hold on Nguyen, he would be

deported, as advising Nguyen that there was a possibility that he would not be deported. Rather, Fox

was informing his client that deportation would ensue upon the action of immigration authorities

placing an immigration hold on Nguyen, whenever that may be.5

               Nguyen also complains that Fox failed to review the relevant immigration statutes

concerning deportation and failed to write Nguyen a letter indicating deportation would be a certainty

upon conviction. However, Fox’s testimony at the writ hearing was that he did not look up the

immigration statutes in reference to this specific case because he knew the law. His testimony

demonstrated his knowledge of and familiarity with the relevant immigration statutes. As for the

letter, nothing requires counsel to advise his client of the immigration consequences in writing. The


       5
         The record reflects that immigration authorities did not place a hold on Nguyen during the
six months he was incarcerated, as trial counsel anticipated, but only eight months after he was
released on community supervision—14 months after his conviction.

                                                 12
record contains evidence showing that Fox knew the relevant immigration statutes, understood the

immigration consequences of his client’s plea, and communicated those consequences to Nguyen.

                  Nguyen’s challenge to the habeas court’s findings and conclusions is premised upon

his contention that the court ignored the totality of the information Fox conveyed to him. He argues

that some advice was erroneous which rendered “any correct advice meaningless.” However, as

discussed above, trial counsel did not give incorrect or conflicting advice. Moreover, in an article

11.072 post-conviction habeas corpus proceeding, the trial judge is the sole finder of fact. Garcia,

353 S.W.3d at 788. It was within the habeas court’s province to judge of the credibility of the

witnesses and resolve conflicting facts. See Amezquita, 223 S.W.3d at 367. The court explicitly

found trial counsel’s testimony to be credible.

                  The Supreme Court’s opinion in Padilla commands that “when the deportation

consequence is truly clear,” counsel’s “duty to give correct advice is equally clear.” See Padilla,

130 S.Ct. at 1484. Viewed in the light most favorable to the habeas court’s ruling, the evidence

supports a finding that trial counsel performed his duty. The evidence and testimony at the writ

hearing demonstrated that Fox appropriately and correctly advised Nguyen about the immigration

consequences of his plea—that he faced deportation upon conviction for this offense. Thus, the

record supports the habeas court’s determination that Nguyen failed to show that trial counsel’s

performance was deficient and, consequently, the court’s conclusion that he failed to meet his burden

of proving ineffective assistance of counsel. Based on the record before it, the habeas court did not

abuse its discretion in denying Nguyen’s application for writ of habeas corpus. We overrule his sole

point of error.



                                                  13
                                            CONCLUSION

                  Because Nguyen failed to show deficient performance on the part of his trial counsel,

he failed to establish his ineffective assistance of counsel claim. Accordingly, the habeas court did

not abuse its discretion in denying his habeas corpus application.6 We affirm the trial court’s order

denying relief.



                                                __________________________________________
                                                Melissa Goodwin, Justice

Before Justices Puryear, Henson and Goodwin

Affirmed

Filed: July 18, 2012

Do Not Publish




       6
           Because we find that the record supports the habeas court’s determination that Nguyen
failed to prove the deficient performance prong of Strickland, we do not address the habeas court’s
findings or conclusions concerning the prejudice prong or Nguyen’s challenge to them. See
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (failure to make showing under
either prong of Strickland defeats an ineffective-assistance claim); see also Tex. R. App. P. 47.1.

                                                   14
