                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________

                               NO. 09-13-00148-CR
                              ___________________


             EX PARTE MARITZA DELSONGA RODRIGUEZ

__________________________________________________________________

                On Appeal from the 221st District Court
                      Montgomery County, Texas
                    Trial Cause No. 11-12-13384 CR
__________________________________________________________________

                          MEMORANDUM OPINION

      Maritza Delsonga Rodriguez appeals from the trial court’s denial of her

application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.072 §

8 (West 2005). In her sole appellate issue, Rodriguez argues that the trial court

erred by denying her application because her trial counsel provided ineffective

assistance by failing to advise her that a guilty plea would render her removable

from the United States. We affirm the trial court’s judgment.




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      Rodriguez pleaded guilty to the third-degree felony offense of possession of

marijuana in an amount greater than five pounds but less than fifty pounds. 1 The

trial court found the evidence sufficient to find Rodriguez guilty, but deferred

further proceedings and placed Rodriguez on community supervision for three

years. Rodriguez subsequently filed an application for writ of habeas corpus, in

which she asserted that she was not advised that her guilty plea would result in

deportation. In an affidavit filed with her application, Rodriguez averred that trial

counsel did not advise her that a guilty plea made her removal or deportation

presumptively mandatory. Rodriguez also averred that trial counsel advised her

only that her plea could result in deportation, exclusion from admission, or denial

of naturalization. Rodriguez further averred that if trial counsel had correctly

informed her regarding the immigration consequences of her plea, she would not

have pleaded guilty and would have insisted on going to trial.

      The trial court ordered Rodriguez’s trial counsel to provide an affidavit

describing the advice he gave Rodriguez concerning the immigration consequences

of her plea. In his affidavit, trial counsel averred as follows, in pertinent part:

      I advised Maritza that I was not an immigration attorney and that I
      could not tell her what the immigration consequences of entering the
      plea would be, but that . . . even though it was deferred probation,
      1
       The appellate record does not contain the reporter’s record of the plea
hearing or the trial court’s written admonishments to Rodriguez.
                                            2
      there still could be immigration consequences. I told her I could not
      predict what immigration would do, but that she should consult an
      immigration attorney. I advised her that if she did not accept a plea
      that being successful at trial was clearly not certain, and that she could
      be waiting in jail for an undetermined period of time to get to trial.
      Upon my advi[c]e Mar[it]za entered a plea to the charge of possession
      of a controlled substance.

      Prior to Maritza’s plea I did not tell her that a guilty plea would make
      her removal or deportation presumptively mandatory, nor that her plea
      made her subject to automatic removal or deportation.

      Prior to Maritza’s plea, I told her only that her plea could result in her
      deportation, exclusion from admission, or denial of naturalization as
      that was my understanding of the law.

      In a response to Rodriguez’s application, the State argued that Rodriguez

failed to show that rejecting a plea bargain would have been rational under the

circumstances because Rodriguez had no viable defense to the charge. The State

attached as an exhibit a narrative from the Montgomery County Sheriff’s Office

describing the traffic stop that led to the charge against Rodriguez. According to

the narrative, Deputy K.A. Wakefield was patrolling on Interstate 45 when he saw

a vehicle change lanes twice without using a turn signal. Deputy Wakefield

initiated a traffic stop and went to the passenger side of the vehicle to speak with

the driver. As Deputy Wakefield passed the rear passenger side of the vehicle, he

noticed that both rear windows were open and he smelled a strong odor of

unburned marijuana. Rodriguez was the driver. When the passenger rolled down

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her window, Deputy Wakefield “noticed an extremely strong smell of perfume

coming from inside the vehicle.” While examining the identification provided by

Rodriguez and the passenger, Deputy Wakefield asked about the perfume, and the

passenger told him she had just applied the perfume. When Deputy Wakefield

asked the women where they were coming from, Rodriguez advised that they were

returning to Dallas after traveling to the Nicaraguan Consulate in Houston. Both

women appeared to be nervous and looked at each other for answers to Deputy

Wakefield’s questions. When Deputy Wakefield asked about the odor of

marijuana, “both females looked at each other with no response.” Deputy

Wakefield asked whether there was any kind of contraband in the vehicle, and

Rodriguez said “there was none that she knew of” and consented to a search of the

vehicle. Upon searching a duffel bag on the rear driver’s side seat and a suitcase,

Deputy Wakefield found bundles of a substance he believed to be marijuana. The

bundles were wrapped with green plastic shrink wrap. One of the bundles weighed

22.25 pounds, and the other bundle weighed 8 pounds. Deputy Wakefield also

found a plastic shrink wrap dispenser and a five-pound postal-type scale in the rear

area of the vehicle.

      The trial court denied Rodriguez’s application for writ of habeas corpus and

filed findings of fact and conclusions of law. In its conclusions of law, the trial

                                         4
court found that Rodriguez “failed to prove by a preponderance of the evidence

that she was denied her right to the effective assistance of counsel at the time of the

entry of her plea[;]” the immigration consequences of Rodriguez’s plea “appear to

have been reasonably clear[;]” trial counsel “may not have rendered

constitutionally adequate performance by failing to ascertain and inform the

applicant of the immigration consequences of her plea[;]” Rodriguez “failed to

prove that it would have been rational for her to reject the plea bargain and instead

proceed to trial, because she had no viable defenses to the charge against her[;]”

Rodriguez “failed to prove that she was prejudiced by [trial counsel]’s deficient

performance, if indeed his performance was deficient[;]” and “[a]ssuming, without

deciding, that the applicant met the first prong of Strickland, 2 the applicant is not

entitled to relief due to her failure to meet the second prong of Strickland.”

      We review a trial court’s denial of an application for writ of habeas corpus

under an abuse of discretion standard. Ex parte Klem, 269 S.W.3d 711, 718 (Tex.

App.—Beaumont 2008, pet. ref’d). We consider the entire record and review the

facts in the light most favorable to the trial court’s ruling. Id. We afford almost

total deference to the trial court’s determination of historical facts supported by the

record, especially those findings that are based on an evaluation of credibility and

      2
          Strickland v. Washington, 466 U.S. 668, 688 (1984).
                                          5
demeanor. Id. We afford the same deference to the trial court’s rulings on

application-of-law-to-fact questions when resolution of those questions turns on an

evaluation of credibility and demeanor. Id. We review the trial court’s

determination de novo when resolution of those questions turns on an application

of legal standards. Id.

      The voluntariness of a plea entered upon the advice of counsel turns on

whether (1) counsel’s advice was within the range of competence demanded of

attorneys in criminal cases and, if not, (2) there is a reasonable probability that, but

for counsel’s errors, the defendant would not have pleaded guilty and would have

insisted on going to trial. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim.

App. 2010). When the law is not succinct and straightforward, a defense attorney

need only advise a noncitizen client that pending criminal charges may carry a risk

of deportation. Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1483, 176

L.Ed2d 284 (2010). If a deportation consequence is truly clear, such as when the

client is subject to automatic deportation, the duty to give correct advice is equally

clear and constitutionally competent counsel must advise the client accordingly. Id.

at 1478, 1483. The defendant must show that a decision to reject the plea bargain

would have been rational under the circumstances. Id. at 1485.



                                           6
      Any alien in and admitted to the United States shall be removed if he has

been convicted of a violation of any state law or regulation relating to a controlled

substance, with a narrow exception for a single offense involving possession for

one’s own use of thirty grams or less of marijuana. 8 U.S.C.A. § 1227(a)(2)(B)(i)

(West 2005 & West Supp. 2010); see Padilla, 130 S.Ct. at 1477 n.1 (“[V]irtually

every drug offense except for only the most insignificant marijuana offenses, is a

deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i).”); see also 8 U.S.C.A. §

1101(a)(48) (West 2005) (Defining the term “conviction”). Thus, trial counsel’s

general advice to Rodriguez that “even though it was deferred probation, there still

could be immigration consequences” was insufficient to inform her that her plea of

guilty to possession of marijuana subjected her to presumptively automatic

deportation. See Padilla, 130 S.Ct. at 1478, 1483.

      However, Rodriguez must also show that there is a reasonable probability

that, but for counsel’s errors, she would not have pleaded guilty and would have

insisted on going to trial. See Harrington, 310 S.W.3d at 458. If Rodriguez had

rejected the plea bargain, proceeded to trial, and been convicted, she would have

faced both confinement and the risk of automatic deportation. In addition, the

record that was before the trial court does not show that Rodriguez had any valid

defense to the charge. In her appellate brief, Rodriguez argues that she lacked

                                         7
affirmative links to the marijuana. However, Rodriguez did not make this argument

to the trial court in her application for writ of habeas corpus, and given the contents

of Deputy Wakefield’s narrative of the traffic stop and search of the vehicle, the

appellate record does not support Rodriguez’s contention that she lacked

affirmative links to the marijuana. See Nixon v. State, 928 S.W.2d 212, 215 (Tex.

App.—Beaumont 1996, no pet.) (Among the factors that tend to establish

affirmative links between the accused and the contraband when the accused was

not in exclusive possession of the area where the contraband was found are that (1)

the contraband was conveniently accessible to the accused, (2) the contraband was

found in close proximity to the accused, (3) a strong residual odor of contraband

was present, (4) the accused’s conduct indicated a consciousness of guilt, and (5)

the place where the contraband was found was enclosed.). Rodriguez failed to

establish that a decision to plead not guilty and to instead proceed to trial would

have been rational under the circumstances. See Padilla, 130 S.Ct. at 1485.

      Viewing the facts in the light most favorable to the trial court’s ruling, we

conclude that Rodriguez failed to establish that ineffective assistance of counsel

rendered her plea involuntary, and the trial court accordingly did not abuse its

discretion by denying Rodriguez’s application for a writ of habeas corpus. See



                                          8
Harrington, 310 S.W.3d at 458; see also Klem, 269 S.W.3d at 718. We overrule

Rodriguez’s sole issue and affirm the trial court’s order denying habeas relief.

      AFFIRMED.



                                              ______________________________
                                                     STEVE McKEITHEN
                                                        Chief Justice


Submitted on August 21, 2013
Opinion Delivered September 4, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




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