                             NUMBER 13-08-00178-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


                         EX PARTE: JUSTIN DEL LLANO


   On appeal from the 94th District Court of Nueces County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

       Appellant, Justin Del Llano, appeals from the trial court’s order denying his petition

for writ of habeas corpus. See TEX . CODE CRIM . PROC . ANN . art. 11.072 § 8 (Vernon 2008).

By two issues, Justin argues that he received ineffective assistance of counsel when his

counsel advised him to accept a plea bargain and did not challenge the validity of a search

warrant that uncovered evidence forming the basis of the prosecution. We affirm.

                                      I. BACKGROUND

       On May 23, 2007, Officer G. Olvera sought a search warrant to search a residence
at 5702 Glen Arbor in Nueces County, Texas. Officer Olvera executed a probable cause

affidavit, which stated that the “suspected place is in charge of and controlled by” Justin

and his father, Henry Del Llano. At the time the search warrant was issued, Justin was

seventeen years old and was living with his parents. The affidavit stated that Officer

Olvera believed that Justin was knowingly and intentionally in possession of contraband

that had been used to deface property:

             Your affiant has had prior contact with Justin Del Llano and [C.T.]
       During these contacts it has become apparent that both boys have some
       connection with the Criminal Street Gang “South Side Bloods.” Justin Del
       Llano has “South Side” tattooed on his for [sic] arms.

               On 10-19-06 your affiant entered the boys restroom at King High
       School and detected a strong odor of permanent marker. On the walls and
       stalls, written in black permanent marker were “Trubl” and “South Side
       Blood.” Justin Del Llano was seen on surveillance camera entering the
       restroom with a known associate of his identified as [V.Y.]. [V.Y.] was later
       identified through emails as the tagger “Trubl.”

               On 2-4-07 numerous areas of King High School was [sic] vandalized
       with graffiti. Your affiant reviewed the surveillance camera and observed
       three subjects walking to areas that were vandalized with graffiti. One
       subject wearing a grey hooded jacket went to areas that were tagged with
       “LEAN.” The other two wearing black hooded jackets were seen going to
       areas that were tagged with “South Side Bloods.” It was later discovered that
       the identity of “LEAN” was [J.A.] an associate of Justin Del Llano. A vehicle
       used during the time of the vandalism fits the description of a vehicle seen
       at the residence of Justin Del Llano. The vehicle, a gold Nissan Maxima with
       a missing right rear hub cap TX LP Y30-LYB, came back registered to
       Annette Del Llano.

              On 5-16-07 [C.T.] an associate of Justin Del Llano was arrested for
       places [sic] weapons prohibited and graffiti. Later that night King High
       School was vandalized with graffiti. On camera a subject wearing a black
       hooded jacket was seen spray painting “South Side Blood” on the brick wall
       of King. It is believed that the act was in retaliation for arresting [C.T.] who
       is known to have a connection with the criminal street gang “South Side
       Bloods.”


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          The Honorable Sandra Watts, the presiding judge of the 117th District Court of

Nueces County, signed the warrant on May 23, 2007. The object of the warrant was to

seize items such as markers and aerosol paints, paraphernalia used to commit graffiti,

cameras, film, memory storage, photos and video evidence, and clothing. Officer Olvera

executed the warrant the same day it was signed. During his search of Justin’s room,

Officer Olvera discovered a shotgun with a barrel less than fifteen inches long in Justin’s

closet.

          On June 21, 2007, Justin was indicted for possession of an unlawful firearm. See

TEX . PENAL CODE ANN . § 46.05(a)(3) (Vernon Supp. 2008) (making possession of a short-

barrel firearm a felony). Justin retained an attorney, and on December 13, 2007, he

appeared before the trial court and pleaded guilty pursuant to a plea bargain with the State.

The court inquired whether Justin pleaded guilty voluntarily, and Justin agreed that he was

pleading guilty voluntarily because he was guilty. Justin also informed the trial court that

he had reviewed the court’s written admonishments with his attorney, that his attorney had

explained the provisions, and he understood the provisions.

          The State offered into evidence State’s Exhibits 1 and 2, which contained the police

investigation, Justin’s judicial confession, and the plea agreement. Justin did not object

to any of this evidence. The State’s evidence included Officer Olvera’s narrative report,

which described the execution of the search warrant. Officer Olvera’s narrative indicated

that during the execution of the search warrant, he located a sawed-off shotgun in Justin’s

closet.

          Justin’s judicial confession and stipulation stated:


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               My attorney has investigated the facts and circumstances surrounding
       my case, discussed those with me, and advised me of possible defenses.
       I am satisfied with my attorney’s representation. I am pleading guilty to the
       offense of POSSESSION OF A PROHIBITED WEAPON because I am
       guilty. My plea is freely, voluntarily, knowingly, and intelligently given.

       In exchange for the guilty plea, the State agreed to recommend that the court defer

adjudication, place Justin on community supervision for seven years, and assess a fine of

$1,500. The trial court accepted the plea, found that there was enough evidence to convict

Justin, and adopted the plea agreement. On December 13, 2007, the trial court entered

a written order deferring adjudication, placing Justin on community supervision for seven

years, and assessing a $1,500 fine. The trial court certified that Justin had no right to

appeal the guilty plea. See TEX . CODE CRIM . PROC . ANN . art. 44.02 (Vernon 2006).

       On February 5, 2008, Justin filed an application for a writ of habeas corpus. See

TEX . CODE CRIM . PROC . ANN . art. 11.072(a). Justin alleged that he received ineffective

assistance of counsel because his trial attorney advised him to accept a plea agreement

but failed to investigate and challenge the validity of the search warrant that resulted in the

discovery of the prohibited weapon. He argued that the search warrant was not based on

probable cause, and had his counsel been effective, he would have advised Justin that

there was a chance the weapon could be suppressed. He argued that he would not have

pleaded guilty had he known there was any chance that the search warrant was defective.

       In support of his application, Justin attached the probable cause affidavit in support

of the search warrant, his own affidavit, and an affidavit signed by his father, Henry Jessie

Del Llano. Justin’s affidavit stated:

             I met with my trial attorney on several occasions in preparation for the
       defense in my case. My case was based on a search warrant issued and

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       executed on May 23, 2007. I understand that the validity of the search
       warrant was the key element in the defense of my case.

              I asked my attorney about the search warrant and he told me that it
       was “legally sound.”

              I would not have pleaded guilty, had my attorney told me that there
       was a chance that the affidavit supporting the warrant was bad and that we
       might successfully exclude the evidence obtained from the warrant. I relied
       solely on my attorney’s advice in reaching my decision to plead guilty.

Justin’s father provided an affidavit making similar assertions:

              I met with Justin’s trial attorney on several occasions in preparation
       for Justin’s defense. On most occasions the attorney would meet with Justin
       by himself, but he would talk with me also. I understood that the validity of
       the search warrant was the key element in the defense of Justin’s case and
       I asked the attorney if the search warrant was good. Justin’s lawyer told me
       that the search warrant was a “sound” warrant.

              Justin depended on his attorney’s advice in pleading guilty. He also
       depended on me to assure him that his attorney was giving him good advice.
       Had I known that there was a chance that the affidavit supporting the warrant
       was defective and that the evidence might possibly be suppressed, Justin
       would not have pleaded guilty.

       The State filed a response to the application. See TEX . CODE CRIM . PROC . ANN . art.

11.072 § 5(b). The State argued that the application should be denied because Justin did

not meet his burden to prove that he would have insisted on going to trial but for his

counsel’s alleged errors and that a motion to suppress would have been granted. The

State attached an affidavit from Justin’s trial counsel, which stated:

               During the ensuing seven months [after the search warrant was
       executed] I had many meetings with Justin and/or his parents, and
       prosecutors. After several discussions with intake District Attorney Jack
       Pulcher, all of Justin’s felony charges were reduced to misdemeanors or no
       billed, except the sawed-off shotgun (possession of prohibited weapon).
       Numerous meetings with James Gardner, gang prosecutor at the time, made
       it clear that he didn’t want to give Justin any breaks. He believed Justin is a
       leader of the South Side Bloods street gang, and he was upset that the two

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      felony graffiti charges were dropped. A plea offer for deferred adjudication
      with Homer Salinas bootcamp as a condition was negotiated.

             I discussed Justin’s options with him and his parents. We discussed
      defenses and the plea offer. I explained that because Justin was caught with
      the contraband in his closet and dresser, the only defense would be a
      challenge to the search. Our primary objective was to avoid a conviction. It
      was made clear during plea negotiations that a suppression hearing would
      result in the plea offer for deferred adjudication being withdrawn.
      Subsequently, straight deferred adjudication with no bootcamp was
      negotiated.

      ....

              The assertion in the Del Llano’s affidavits that I advised them that I did
      not believe the search warrant affidavit for probable cause would
      successfully be challenged is true. I advised them that in my opinion there
      was enough evidence provided in the affidavit that the reviewing Judge
      would not overrule Judge Watts’ decision to issue the warrant. In my
      experience, the circumstances presented were not conducive to a favorable
      ruling. I advised Del Llano that if we challenged the search, the Prosecutor
      would withdraw the plea offer and he would probably end up with a felony
      conviction on his record. We talked about a ‘mere evidence’ warrant and the
      fact that it had to be issued by a licensed attorney judge. We discussed the
      probable cause assertions, and I did express my opinion that challenging the
      warrant would be risky. In my opinion, Justin and his parents understood his
      options and he decided to take the plea offer for deferred adjudication. By
      doing so he was aware that he was waiving his right to challenge the search
      warrant, and his trial rights.

      On March 17, 2008, the trial court denied the application for a writ of habeas corpus,

finding that the application was frivolous. This appeal ensued.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

      By his first issue, Justin argues that he received ineffective assistance of counsel

because his trial attorney advised him to accept the plea bargain without investigating and

attacking the search warrant. By his second issue, he argues that his prosecution was

based on an unlawful search. He argues that because of his counsel’s failure to attack the


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defective search warrant, his guilty plea was not knowingly and voluntarily made.

A.     Standard of Review and Applicable Law

       We review a trial judge’s decision to grant or deny habeas corpus relief for an abuse

of discretion. Lovill v. State, Nos. 13-07-00529-CR & 13-07-00668-CR, 2008 WL 5275531,

at *10 (Tex. App.–Corpus Christi Dec. 22, 2008, pet. granted); Ex parte Wilson, 171

S.W.3d 925, 928 (Tex. App.–Dallas 2005, no pet.). We afford almost total deference to

the judge's determination of the historical facts that are supported by the record,

particularly when the fact findings are based on an evaluation of credibility and demeanor.

Lovill, 2008 WL 5275531, at *10; Ex parte Wilson, 171 S.W.3d at 928. We defer to the trial

judge's application of the law to the facts, if the resolution of the ultimate questions turns

on an evaluation of credibility and demeanor. Lovill, 2008 WL 5275531, at *10; Ex parte

Wilson, 171 S.W.3d at 928. If the resolution of the ultimate questions turns on an

application of the law, we review the determination de novo. Lovill, 2008 WL 5275531, at

*10; Ex parte Wilson, 171 S.W.3d at 928.

       An applicant for a writ of habeas corpus claiming ineffective assistance of counsel

must demonstrate that (1) his counsel’s representation fell below an objective standard of

reasonableness; and (2) the defendant suffered prejudice thereby. Ex Parte McFarland,

163 S.W.3d 743, 751-52 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S.

668, 687-88 (1984)). In assessing the first prong, “we look to see if counsel was acting as

‘a reasonably competent attorney’ would under the circumstances.” Id. at 753 (quoting

Strickland, 466 U.S. at 687). The applicant “has the burden of proof and must overcome

a ‘strong presumption that counsel's performance fell within the wide range of reasonable


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professional assistance.’” Id. (quoting Strickland, 466 U.S. at 689). The trial counsel’s

errors must be “so serious that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

       The applicant must also prove that counsel’s deficient performance prejudiced his

defense—he must demonstrate that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Id. at 694.   A “reasonable probability” means a “probability sufficient to undermine

confidence in the outcome.” Id.

       A record indicating that the trial court properly admonished the defendant about a

guilty plea presents a prima facie showing that the guilty plea was made voluntarily and

knowingly. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Under

these circumstances, the burden shifts to the defendant to show that he entered the plea

without understanding the consequences. Id.; Arreola v. State, 207 S.W.3d 387, 391 (Tex.

App.–Houston [1st Dist.] 2006, no pet.). “An accused who attests when he enters his plea

of guilty that he understands the nature of his plea and that it is voluntary has a heavy

burden on appeal to show that his plea was involuntary.” Arreola, 207 S.W.3d at 391.

       A guilty 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). When a defendant

challenges the voluntariness of a plea entered upon the advice of counsel, and contends

that his counsel was ineffective, “the voluntariness of the plea depends on (1) whether

counsel’s advice was within the range of competence demanded of attorneys in criminal

cases and if not, (2) whether there is a reasonable probability that, but for counsel’s errors,


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he would not have pleaded guilty and would have insisted on going to trial.” Ex parte

Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (quoting Ex Parte Morrow, 952

S.W.2d 530, 536 (Tex. Crim. App. 1997)).

B.       Investigation of the Facts

         First, Justin argues that his trial counsel failed to conduct a full investigation of the

facts of the case. When an ineffective assistance claim involves an allegation that defense

counsel failed to investigate the case, the applicant has the burden to show that a further

investigation would have led to specific evidence or witnesses that were available and

would have benefitted the defense. See Wilkerson v. State, 726 S.W.2d 542, 551 (Tex.

Crim. App. 1986); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that,

to show ineffective assistance of counsel because of failure to call witnesses, defendant

must show that witnesses were available and that he would have benefitted from their

testimony); Wilson v. State, 688 S.W.2d 212, 214 (Tex. App.–Corpus Christi 1985, no

pet.).

         Justin does not argue that his attorney failed to interview witnesses or to properly

review the prosecutor’s file. See, e.g., Haynes v. State, 790 S.W.2d 824, 827 (Tex.

App.–Austin 1990, no pet.). In fact, Justin does not point to any evidence that a further

investigation would have revealed and that would have resulted in a stronger challenge to

the probable cause affidavit. See Wilson, 688 S.W.2d at 214; see also Wilkerson, 726

S.W.2d at 551; King, 649 S.W.2d at 44. Instead, Justin’s arguments focus on the affidavit

itself as being insufficient on its face. Without any additional support, we cannot conclude

that Justin’s trial counsel failed to investigate the facts underlying the probable cause


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affidavit. See Ex Parte Cruz, 739 S.W.2d 53, 59 (Tex. Crim. App. 1987) (holding record

insufficient to justify finding that attorney failed to properly investigate case), overruled on

other grounds, Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); King, 649

S.W.2d at 44. Thus, we reject Justin’s argument in this regard.

C.     Review of the Affidavit

       Second, Justin argues that the probable cause affidavit, on its face, demonstrates

that the warrant was not supported by probable cause, and his trial counsel was defective

by advising him that the warrant was “sound.” He argues that, had his counsel advised him

there was an opportunity to challenge the probable cause affidavit and a “chance” that the

firearm could be excluded at trial, he would have insisted on going to trial and would not

have pleaded guilty.

       In contrast, Justin’s trial counsel maintains that he advised Justin that, in his

experience, he believed that a challenge to the warrant would probably not succeed and

that such a challenge would be “risky.” Justin’s trial counsel provided an explanation for

the basis of his advice to Justin that he plead guilty to the charge: counsel explained that

the goal of the representation, as dictated by Justin and his family, was to avoid a felony

conviction. Counsel further explained that the State informed him that it would withdraw

the plea offer if Justin filed a motion to suppress the fruits of the search. Thus, he advised

Justin that challenging the warrant could result in a criminal conviction on his

record—which Justin wanted to avoid.

       The trial court admonished Justin of the consequences of his plea, and Justin

represented to the trial court that he understood the plea, that counsel had investigated the


                                              10
case and explained the possible defenses, and that he was satisfied with his counsel’s

advice and representation. Under these circumstances, Justin bore a heavy burden to

establish that his plea was involuntary. See Martinez, 981 S.W.2d at 197; Arreola, 207

S.W.3d at 391. When faced with conflicting evidence about the circumstances affecting

the representation and the voluntariness of the plea, the trial court was required to resolve

the conflict.   See TEX . CODE CRIM . PROC . ANN . art. 11.072 § 6(b) (“In making its

determination, the court may order affidavits, depositions, interrogatories, or a hearing, and

may rely on the court's personal recollection.”); Hall v. State, 160 S.W.3d 24, 40 (Tex.

Crim. App. 2004) (holding that the “trial judge, who presided over the trial and the habeas

proceedings, was in the best position to evaluate the conflicting evidence”); see also Ex

parte Karlson, 282 S.W.3d 118, 129-30 (Tex. App.–Fort Worth 2009, pet. ref’d).

       As is apparent from the above recitation, Justin’s trial counsel did not advise him

that there was no possibility of a challenge to the warrant, but that it would be “risky.”

Justin’s trial counsel opined that Justin was aware of the options available and that he

decided to plead guilty voluntarily—all to achieve the goal of avoiding a conviction. And

Justin has thus far avoided a conviction—he received deferred adjudication. The trial court

was entitled to believe trial counsel’s recitation of the facts and to conclude that Justin

pleaded guilty voluntarily. See Mitich v. State, 47 S.W.3d 137, 141 (Tex. App.–Corpus

Christi 2001, no pet.) (holding that, where defendant informed trial court that he had

discussed plea and possible defenses with counsel, understood consequences of plea,

and was satisfied with counsel’s representation, there was no evidence that advice of

counsel caused involuntary plea); see also Jackson v. State, No. 2-02-217-CR, 2003 WL


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21983258, at *2 (Tex. App.–Fort Worth Aug. 21, 2003, no pet.) (mem. op.; not designated

for publication) (holding that counsel was not ineffective in failing to communicate plea

bargain offer by State where plea bargain would not satisfy goal of representation, which

was to avoid deportation).1 We overrule Justin’s issues.

                                            III. CONCLUSION

        Having overruled all of Justin’s issues, we affirm the trial court’s order denying his

application for a writ of habeas corpus.




                                                         GINA M. BENAVIDES,
                                                         Justice

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

Memorandum Opinion delivered and
filed this the 13th day of August, 2009.




        1
         Justin argues that a challenge to the warrant would have been successful. In response, the State
challenges these argum ents and also argues that Justin did not establish that he had standing to challenge
the warrant. W e need not address these issues. See T EX . R. A PP . P. 47.1.

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