      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-11-00098-CR



                                  Ex parte Ignacio Luna Garcia




       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
             NO. 48700, HONORABLE JOE CARROLL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The State charged appellant Ignacio Luna Garcia with possession of more than four

but less than two hundred grams of cocaine with intent to deliver. See Tex. Health & Safety Code

Ann. § 481.112(a) & (d) (West 2010). Garcia pleaded guilty to the offense. Garcia subsequently

filed an application for a post-conviction writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art.

11.072 (West 2005), which the trial court denied. On appeal, Garcia argues that the trial court erred

in denying relief on the habeas application because he received ineffective assistance of counsel.

Specifically, Garcia argues that he received ineffective assistance of counsel due to (1) his trial

counsel’s failure to advise him of the immigration consequences of pleading guilty, and (2) his trial

counsel’s conflict of interest in representing both Garcia and Corey Ross, whose arrest for possession

of marijuana stemmed from the execution of the same search warrant that led to Garcia’s arrest. We

affirm the judgment of the trial court.
                                          BACKGROUND

                On October 14, 1997, the Killeen Police Department executed a search warrant at the

home of Corey Ross. According to the affidavit of arrest for Ross, during the course of the search

the police discovered a large container in a laundry room. Upon further investigation, the police

discovered that the container was holding more than one pound of marijuana. Ross, who was at the

residence at the time the warrant was executed, admitted to police that the marijuana belonged to

him. According to the affidavit of arrest for Garcia, during the same search, the police found cocaine

and drug-packaging materials in a bedroom where Garcia’s personal belongings and bills addressed

to Garcia were also found. Garcia was not present at the residence when the search began but arrived

while it was still being conducted. Upon Garcia’s arrival, police searched his vehicle and found a

set of electronic scales.

                Ross was indicted for possession of marijuana less than five pounds and cocaine in

the amount of less than one gram, both state jail felonies. See Tex. Health & Safety Code Ann.

§§ 481.121(a) & (b)(3), .115(b) (West 2010). Garcia was separately indicted for possession of

cocaine in an amount less than two hundred grams but more than four grams with intent to deliver,

a first degree felony. See id. § 481.112(a) & (d). Garcia and Ross retained the same defense counsel.

On October 9, 1998, Ross pleaded guilty and was sentenced to eighteen months in state jail. On

September 3, 1998, pursuant to a plea agreement, Garcia pleaded guilty and was sentenced to six

years in prison.

                Prior to entry of Garcia’s plea, the trial court admonished Garcia that “in the event

you are not a citizen of the United States, conviction of this type of offense may result in deportation

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from the country, barred from re-admission to the country, and denied naturalization rights as a

citizen.” When asked whether he understood the potential consequences of his plea, Garcia

responded, “Yes, sir.”

                Approximately twelve years later, on August 12, 2010, Garcia filed an application

for a writ of habeas corpus, amending the application on October 22. In his application, Garcia

alleged that he had been denied effective assistance of counsel because his trial counsel failed to

advise him that he would become deportable if he accepted the State’s plea offer. He also claimed

that his trial attorney was ineffective because a conflict of interest existed in that trial counsel also

represented Ross.

                In support of his application, Garcia submitted his own affidavit, in which he stated

that “at no time” did his trial attorney advise him that he “would become deportable or removable”

if he accepted the plea offer. He further averred that “if [trial counsel] had told me that I would

become removable or deportable by pleading guilty, I would never have elected to plead guilty. I

would have chosen to go to trial.” Garcia’s trial counsel submitted a conflicting affidavit, stating

that he and Garcia discussed the fact that Garcia’s crime was a deportable offense. Trial counsel also

stated that he tried to negotiate with the State to allow immediate removal in lieu of probation or jail

time, that he “appreciated that any disposition of [Garcia’s] criminal charge short of an acquittal

would result in removal given the federal definition of ‘conviction,’” and that “Mr. Garcia’s

immigration status was an influencing factor for both sides in the plea negotiations.” He went on

to say,




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       Given the fact that [Garcia] had committed a deportable offense even with a deferred
       probation, Mr. Garcia fully realized that removal was in his future. I recall telling
       him that he would likely be granted parole at the first look because they needed the
       prison space and INS would pick him up and take him to San Antonio for removal
       proceedings.


               With respect to Garcia’s allegation that a conflict of interest existed in trial counsel’s

representation of both Garcia and Ross, Garcia claimed that because he was not in the home at the

time of the police search, he “had a defense of not having ownership, possession or control of the

cocaine and marijuana. This defense would have been in direct conflict with the interests of

Mr. Ross.”

               The trial court disposed of the habeas application on the submitted affidavits and

record without holding a hearing. The trial court’s findings of fact deemed the affidavit of Garcia’s

trial counsel “credible” and found that both trial counsel and the trial court advised Garcia of the

possible deportation consequences before he entered his guilty plea. It further found that Garcia’s

allegation on this point was supported only by Garcia’s own sworn allegations.

               The trial court additionally found that, though Ross’s and Garcia’s cases occurred “in

close proximity to each other,” they “did not arise out of the same criminal transaction or the same

criminal episode” and that Garcia failed to show that trial counsel had an actual conflict of interest

or that his representation of Ross affected the adequacy of his representation of Garcia. Based on

its findings, the trial court denied Garcia’s habeas application, and this appeal followed.




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                                    STANDARD OF REVIEW

                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 and uphold that ruling absent an abuse

of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). The appellate court

affords almost total deference to a trial court’s factual findings in habeas proceedings 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). A trial court’s factual findings

are entitled to some deference even when the findings do not rest on credibility determinations, but

are instead based on physical or documentary evidence. Manzi v. State, 88 S.W.3d 240, 243 (Tex.

Crim. App. 2002). A trial court’s conclusions of law are reviewed de novo. Ex parte Martin,

6 S.W.3d 524, 526 (Tex. Crim. App. 1999).


                                           DISCUSSION

                Garcia argues that his trial counsel’s actions denied him effective assistance of

counsel as guaranteed by the Sixth Amendment.              See U.S. Const. amend. VI; Strickland

v. Washington, 466 U.S. 668, 685-86 (1984). In order to prevail on a claim of ineffective assistance

of counsel, Garcia must satisfy the two-prong test set forth in Strickland, which requires a showing

that (1) counsel’s performance was deficient; and (2) counsel’s deficient performance prejudiced the

defense, resulting in an unreliable or fundamentally unfair outcome. See 466 U.S. at 687-88; see

also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The Supreme Court has held

that the Strickland test applies to challenges to guilty pleas based on ineffective assistance of

counsel. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); see also Imoudu, 284 S.W.3d at 869. A guilty

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plea is not voluntary if made as a result of ineffective assistance of counsel. Ex parte Burns,

601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Ex parte Karlson, 282 S.W.3d 118, 129 (Tex.

App.—Fort Worth 2009, pet. ref’d).

               Under the first prong of the Strickland test, the defendant must show that counsel’s

performance was deficient. However, there is a “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Under

the second prong, a defendant challenging a guilty plea satisfies the prejudice requirement by

showing a reasonable probability that, absent counsel’s deficient performance, the defendant would

not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. Generally,

the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-

assistance challenges to convictions obtained through a trial. Id. For example, “[w]here the alleged

error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime

charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative

defense likely would have succeeded at trial.” Id.

               Garcia first argues that his trial counsel’s performance was deficient because trial

counsel failed to advise Garcia that pleading guilty would lead to deportation. See Padilla v.

Kentucky, 559 U.S.__, 130 S. Ct., 176 L. Ed. 2d 284 (2010) (holding that counsel’s failure to inform

non-citizen defendant that pleading guilty would result in deportation satisfied the first-prong of

ineffective assistance of counsel claim). Garcia’s trial counsel submitted an affidavit stating that he

not only discussed the fact that the offense was a deportable offense, but that Garcia’s immigration

status was also “an influencing factor for both sides in the plea negotiations.” Further, the record



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indicates that the trial court itself admonished Garcia that, in the event that he was not a United

States citizen, conviction might result in deportation. At Garcia’s plea hearing, the following

exchange took place:


               COURT:                 All right. Mr. Garcia, in the event you are not
                                      a citizen of the United States, conviction of
                                      this type of offense may result in deportation
                                      from the country, barred from re-admission to
                                      the country, and denied naturalization rights as
                                      a citizen . . . . Do you have any questions
                                      about any of those matters?

               DEFENDANT:             No, sir.

               COURT:                 Do you have any questions about any of the
                                      matters covered with you in writing or
                                      covered with you orally by the court?

               DEFENDANT:             No, sir.


The only evidence in the record contradicting trial counsel’s affidavit was Garcia’s own affidavit

containing a declaration that trial counsel did not advise him of the deportation consequences. Thus,

the trial court’s finding that Garcia was advised by trial counsel of the possible deportation

consequences before he pleaded guilty is supported by the record. We must defer to the trial court’s

factual determinations and therefore cannot say that the trial court erred in its finding. Ex parte

Amezquita, 223 S.W.3d at 367.

               Garcia next argues that trial counsel’s representation was ineffective because trial

counsel had a conflict of interest in representing both Garcia and Ross. See Cuyler v. Sullivan,

446 U.S. 335 (1980) (recognizing that Sixth Amendment may be violated where multiple



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representation creates actual conflict of interest). Because Garcia did not object to the alleged

conflict of interest in the trial court, in order to show ineffective assistance of counsel on appeal, he

must show that trial counsel had an actual conflict of interest and that the conflict of interest actually

colored counsel’s actions. Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007).

                Garcia’s only claim on appeal that the alleged conflict of interest colored trial

counsel’s actions is his allegation that trial counsel’s representation of Ross prevented trial counsel

from raising a potential defense based on Garcia’s “lack of presence, of possession, ownership or

control over the controlled substances that were found in Mr. Ross[’s] residence.” See Poindexter

v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (“When the accused is not in exclusive

possession of the place where the substance is found, it cannot be concluded that the accused had

knowledge of and control over the contraband unless there are additional independent facts and

circumstances which affirmatively link the accused to the contraband.”). As Garcia’s ineffective

assistance claim centers around trial counsel’s failure to advise him of this potential defense, the

success of his claim depends largely on whether the defense likely would have succeeded at trial.

Hill, 474 U.S. at 59. The affidavit for Garcia’s arrest indicates that cocaine was found in a bedroom

containing Garcia’s personal possessions and bills addressed to Garcia. It further stated that Garcia

arrived at the residence during the police search and that a set of electronic scales were found in

Garcia’s vehicle. Given this evidence, we cannot say that a defense to actual care, custody, and

control would likely have succeeded at trial. Because the trial court did not abuse its discretion in

denying relief based on ineffective assistance of counsel, Garcia’s only point of error is overruled.




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                                       CONCLUSION

              We affirm the trial court’s order denying habeas relief.



                                                    ____________________________________

                                                    Diane M. Henson, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: September 30, 2011

Do Not Publish




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