                          NUMBER 13-13-00667-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


                       EX PARTE JOSE CUENCA MOTTA


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                          MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Rodriguez
      Appellant Jose Cuenca Motta challenges the trial court's denial of his application

for writ of habeas corpus, which he filed after he pleaded guilty to the offense of credit

card abuse and was placed on deferred-adjudication community supervision. See TEX.

CODE CRIM. PROC. ANN. art. 11.072 (West, Westlaw through 2013 3d C.S.); TEX. PENAL

CODE ANN. § 32.31(b), (d) (West, Westlaw through 2013 3d C.S.).           By two issues,

appellant argues that:    the trial court erred in failing to conduct a hearing on his
application; and his guilty plea was involuntary because, with regard to the effect of his

guilty plea on his immigration status, he was not properly admonished by the trial court

or provided effective assistance of counsel. We affirm.

                                      I. Background

        Appellant, an undocumented resident of Texas who was brought to the United

States from Colombia at the age of seven by his parents, was indicted for credit card

abuse in connection with his use of a stolen credit card in Victoria County. Appellant

pleaded guilty to the charged offense, and the trial court placed him on deferred-

adjudication community supervision for a term of three years. Appellant signed written

admonishments prior to his plea that contained the following: "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." In its verbal admonishments to appellant at

the plea hearing, the trial court asked appellant if he read and understood the written

admonishments he had signed, and appellant responded that he did. The trial court did

not verbally admonish appellant as to the potential deportation consequences of his guilty

plea.

        Appellant timely filed an application for writ of habeas corpus, alleging that

"[s]hortly after the [trial court] signed the deferred adjudication order, immigration officers

came to the home where [appellant] lives with his parents and took [him] into custody,

where he remained for a period of weeks before posting bond." Appellant claimed that

he pleaded guilty

              upon the representation of his counsel, Ira Perz, that deferred
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       adjudication was better than a conviction. Although he knew that
       [appellant] is not a citizen, at no time did Mr. Perz inform [appellant] of the
       immigration consequences of a guilty plea. In fact, the advice given to
       [appellant] is patently incorrect given the adverse consequences a guilty
       plea has on a non-citizen defendant's immigration status. . . .

               . . . [Appellant] was never told by his attorney that the plea or the
       judgment of deferred adjudication could result in deportation efforts being
       instituted against him. Had [appellant] known or understood the possibility
       of deportation, even with deferred adjudication, he would never have
       entered the guilty plea. The failure by Mr. Perz to inform his client of the
       consequences of his guilty plea constitutes ineffective assistance of counsel
       in contravention of the Sixth Amendment to the United States Constitution
       and forms the basis for relief under habeas corpus.

Appellant attached his affidavit to the application, in which he averred that "the statements

and allegations of the application [were] within [his] personal knowledge and are true and

correct."

       The State responded to appellant's application, arguing that appellant's affidavit

was insufficient to prove ineffective assistance of counsel.        The State attached an

affidavit from appellant's trial counsel, Ira Perz, in which he averred, in relevant part, as

follows:

                I gave Jose Cuenca Motta the following advise [sic] in relation to the
       facts:

              Since he did not have any legal status in the United States, there
       would be no way to prevent him from being deported, whether he was
       sentenced to a period of incarceration, probation or deferred adjudication.
       Also, since he admitted his involvement in the case to the police at the time
       that he was arrested, it would have been almost impossible to win an
       acquittal at trial.

              I have been dealing with the immigration laws of the United States
       since moving here as a child. A large part of my practice consists of
       representation of non-citizens, whether in immigration matters or criminal
       cases.

                I dispute the assertion by Mr. Motta in his application that I did not
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       tell him that he was subject to deportation proceedings by entering a plea
       of guilty. I did tell him that, and even mentioned the case of Padilla v.
       Kentucky to him.

             In my opinion, the advice given to Jose Cuenca Motta was
       reasonably competent.

            In my opinion, the advice given permitted Jose Cuenca Motta to
       make an informed and conscious choice in this matter.

Finally, the State argued that any deficiency by appellant's trial counsel was harmless in

light of the overwhelming evidence of appellant's guilt.

       The trial court denied appellant's application in the following order:

             On this day came on to be considered the application for writ of
       habeas corpus in the above case under Code of Criminal Procedure Art.
       11.072. The Court takes judicial notice of the Court's file in Cause #12-4-
       26,532-A and this writ file.

              The Court determines it is able to make a determination without a
       hearing. After review of the files, the pleadings of the parties, the affidavits,
       and personal recollection, the Court DENIES the relief requested. The
       Court finds as follows:

       (1)      The affidavit of Ira Perz, Jose Cuenca Motta's retained attorney at
       trial, is credible. Ira Perz is an attorney knowledgeable in immigration law.

       (2)    Ira Perz did inform Jose Cenca [sic] Motta of the immigration
       consequences of pleading guilty, advising him that since he did not have
       any legal status in the United States, there would be no way to prevent him
       from being deported, whether he was sentenced to a period of
       incarceration, probation or deferred adjudication.

       (3)     Applicant entered his plea freely and voluntarily. Ira Perz provided
       effective representation.

       (4)    Jose Cuenca Motta also confirmed under oath when signing the Plea
       Memorandum in the case that he had read the Plea Memorandum, including
       Exhibit A and understood all the information in it. Exhibit A contains the
       Code of Criminal Procedure Art. 26.13 admonishments, including the
       consequences if defendant is not a citizen of the United States.

This appeal followed.
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                                          II. Hearing

       By his first issue, appellant argues that the trial court erred in refusing to conduct

an evidentiary hearing on his application. We disagree.

       We review a trial court's decision to grant or deny an evidentiary hearing on an

article 11.072 habeas corpus application under an abuse of discretion standard. See Ex

parte Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth 2005, no pet.). Although

appellant argues that he was entitled to an evidentiary hearing to prove his allegations,

nothing in article 11.072 requires the trial court to conduct a hearing before rendering its

decision on the habeas corpus relief sought.       See TEX. CODE CRIM. PROC. ANN. art.

11.072. While section 6(b) of 11.072 states a trial court may order, among other things,

a hearing, it does not require the court to do so. See id. art. 11.072, § 6(b); Cummins,

169 S.W.3d at 757 (holding that nothing in article 11.072 required the trial court to hear

evidence and allow appellant to cross examine former trial counsel in an application for

writ of habeas corpus alleging ineffective assistance); Ex parte Gonzalez, 323 S.W.2d

557, 558 (Tex. App.—Waco 2010, pet ref'd) (same); Ex parte Franklin, 310 S.W.3d 918,

922–23 (Tex. App.—Beaumont 2010, no pet.) (stating that a trial court is not required to

hold oral hearings when determining whether to deny an 11.072 application alleging

ineffective assistance of counsel); see also Ex parte Faulkner, No. 09-05-00478 CR, 2006

WL 3094339, at *3 (Tex. App.—Beaumont 2006, pet. ref'd.) (mem. op., not designated

for publication) (stating the decision of whether to conduct a hearing on an article 11.072

application is entirely discretionary).

       Here, both appellant's application and the State's response included affidavits,

which the trial court was entitled to consider as evidence. See TEX. CODE CRIM. PROC.
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ANN. art. 11.072, § 6(b); Ex parte Thompson, 153 S.W.3d 416, 425 (Tex. Crim. App. 2005)

("[A] reviewing court will defer to the factual findings of the trial judge even when the

evidence is submitted by affidavit.") (citing Manzi v. State, 88 S.W.3d 240, 242–44 (Tex.

Crim. App. 2002)). Having this evidence before it, we cannot conclude the trial court

abused its discretion in making a decision on the application without a hearing. We

overrule appellant's first issue.

                                III. Voluntariness of Plea

       By his second issue, appellant argues that his guilty plea was involuntary for two

reasons: (1) the trial court failed to properly admonish appellant as to the consequences

of a guilty plea and deferred-adjudication probation on appellant's immigration status; and

(2) appellant's trial counsel did not adequately advise him of the deportation

consequences of his guilty plea and was therefore constitutionally ineffective.

       As to appellant's first argument regarding the trial court's admonishments, we

conclude that he has waived our review. In his application for writ of habeas corpus,

appellant complained only of his trial counsel's alleged failure to properly advise him on

the consequences of his guilty plea; he made no complaint about the trial court's

admonishments. When an issue is not specifically included in an application for writ of

habeas corpus, the issue may not be raised for the first time on appeal. Ex parte Torres,

941 S.W.2d 219, 220 (Tex. App.—Corpus Christi 1996, pet. ref'd); see TEX. R. APP. P.

33.1(a)(1); see also Ex parte Saldana, 13-01-00360-CR, 2002 WL 91331, at *5 (Tex.

App.—Corpus Christi Jan. 24, 2002, no pet.) (not designated for publication). Because

appellant did not raise an issue concerning the trial court's admonishments in his

application, we may not address it now for the first time on appeal.
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       Appellant's second argument is that his trial counsel's deficient advice regarding

his risk of deportation rendered appellant's guilty plea involuntary. Appellant argues that

counsel's advice was confusing and unclear; he contends that he did not understand that

a deferred-adjudication order carried the same deportation risk as a conviction.

Appellant argues that he would not have pleaded guilty if he had been correctly advised.

               Counsel's advice can provide assistance so ineffective that it renders
       a guilty plea involuntary. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting
       McMann v. Richardson, 397 U.S. 759, 771 (1970) []). A guilty plea is not
       knowing or voluntary if made as a result of ineffective assistance of counsel.
       Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). A
       defendant's decision to plead guilty when based upon erroneous advice of
       counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d
       81, 83 (Tex. Crim. App. 1991)[;] [s]ee also Ex parte Harrington, 310 S.W.3d
       452, 459 (Tex. Crim. App. 2010) ("When counsel's representation falls
       below this [Strickland] standard, it renders any resulting guilty plea
       involuntary.").

              ....

                To obtain habeas corpus relief on a claim of involuntary plea, an
       applicant must meet both prongs of the Strickland standard: (1) counsel's
       performance "was deficient; and (2) that a probability exists, sufficient to
       undermine our confidence in the result, that the outcome would have been
       different but for counsel['s] deficient performance." Ex parte White, 160
       S.W.3d 46, 49 (Tex. Crim. App. 2004). In the context of involuntary plea,
       the "different outcome" is choosing not to plead and instead choosing to go
       to trial.

               Counsel's performance is deficient if it is shown to have fallen below
       an objective standard of reasonableness.             Id. at 51; Strickland v.
       Washington, 466 U.S. 668, 687–88 (1984).                  The constitutionally
       appropriate level of reasonableness is defined by the practices and
       expectations of the legal community and prevailing professional norms
       therein. Strickland, at 688. In situations in which the law is not clear,
       counsel should advise a client that pending criminal charges may carry a
       risk of other serious consequences. When a serious consequence is truly
       clear, however, counsel has an equally clear duty to give correct advice.
       Both failure to provide correct information and providing incorrect
       information violate that duty.

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Ex parte Moussazadeh, 361 S.W.3d 684, 688–89, 691 (Tex. Crim. App. 2012). Here,

the law is clear that even a deferred-adjudication order subjects an undocumented

defendant to deportation. See 8 U.S.C. § 1101(a)(48) (2012); State v. Guerrero, 400

S.W.3d 576, 587–88 (Tex. Crim. App. 2013) (recognizing that a guilty plea resulting in

deferred adjudication is final for purposes of federal immigration law and Padilla v.

Kentucky applies even when adjudication is deferred and the charges are later

dismissed). So appellant's trial counsel's duty was to warn appellant that pleading guilty

and accepting deferred-adjudication probation could result in his deportation.

       Regardless, a defendant "making a claim of ineffective assistance must identify

the acts or omissions of counsel that are alleged not to have been the result of reasonable

professional judgment."    Strickland, 466 U.S. at 690. The record must affirmatively

demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). Where the record does not do so, counsel is presumed effective. Id.

A defendant's uncorroborated testimony as to such deficiencies is not sufficient to

establish ineffective assistance of counsel. Arreola v. State, 207 S.W.3d 387, 391 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

       In his application, which was supported by his affidavit, appellant contended that

counsel failed to inform him that a deferred-adjudication order would subject him to

deportation proceedings.      On appeal, appellant also points to the trial court's

admonishment that deferred adjudication is not a conviction, but rather, if appellant were

to follow the rules, an "opportunity to then move on and still achieve what you want to do."

Appellant contends that this admonishment combined with counsel's inadequate advice

"lead [sic] [him] to believe that if he was not convicted, there could be no deportation
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consequences to his plea."

       We note first that appellant's uncorroborated assertion that trial counsel failed to

correctly advise him was insufficient to show any deficiency. See Arreola, 207 S.W.3d

at 391. The trial court would have acted reasonably in denying the application on this

basis alone. But the trial court also had the benefit of defense counsel's affidavit, which

directly contradicted appellant's account. See Ex parte Skelton, 434 S.W.3d 709, 717

(Tex. App.—San Antonio 2014, pet. ref'd) ("The habeas court is the sole finder of fact in

an article 11.072 habeas proceeding, and we afford almost total deference to its

determinations of historical fact that are supported by the record . . . .") (citing Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Ex parte Urquhart, 170 S.W.3d 280,

283 (Tex. App.—El Paso 2005, no pet.)); see also Ex parte Thompson, 153 S.W.3d at

425 ("[A] reviewing court will defer to the factual findings of the trial judge even when the

evidence is submitted by affidavit."). In counsel's affidavit, which was attached to the

State's response, trial counsel stated that he has in-depth knowledge of immigration law

and that, in this case, "there would be no way to prevent [appellant] from being deported,

whether he was sentenced to a period of incarceration, probation or deferred

adjudication."   Counsel then stated that he told appellant that "he was subject to

deportation proceedings by entering a plea of guilty." The trial court found counsel's

statements credible, and although counsel's affidavit is not crystal clear, we believe that

it was reasonable for the trial court to conclude from its contents that counsel advised

appellant that if he pleaded guilty, he would be subject to deportation no matter the

sentence imposed. We cannot conclude that trial counsel's performance was deficient

in this regard; he gave the correct advice under the law. See Ex Parte Moussazadeh,
                                              9
361 S.W.3d at 691; see also Guerrero, 400 S.W.3d at 587–88.

       Lastly, appellant argues that, even if trial counsel counsel properly advised

appellant, he was still deficient in recommending a guilty plea considering the dire

consequences of deportation. Appellant argues that counsel should have "negotiated

for a lower plea (i.e., a Class A misdemeanor) or for deferred prosecution." The record

is silent as to these matters. We cannot conclude on the record before us that counsel

did not pursue those options or that counsel did not have a reasonable trial strategy in

choosing not to pursue those options. See Thompson, 9 S.W.3d at 813.

       Because the trial court was entitled to believe trial counsel's version of events, we

cannot conclude that appellant's guilty plea was involuntary; there was evidence that he

was informed of the immigration consequences of his guilty plea. And having failed to

prove any further deficiencies, we also cannot conclude that counsel was deficient in

advising appellant to plead guilty to the charges and accept deferred-adjudication

probation. We overrule appellant's second issue.

                                    IV. Conclusion

       We affirm the order of the trial court denying appellant's application for writ of

habeas corpus.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 20th
day of November, 2014.


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