AFFIRMED and Opinion Filed June 11, 2014.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00264-CR

                             EX PARTE ORLANDO GUTIERREZ

                       On Appeal from the 363rd Judicial District Court
                                    Dallas County, Texas
                           Trial Court Cause No. WX13-90023-W

                              MEMORANDUM OPINION
                         Before Justices Moseley, O’Neill, and FitzGerald
                                   Opinion by Justice Moseley
       Orlando Gutierrez appeals the trial court’s order denying relief on his application for writ

of habeas corpus. Appellant did not timely file a brief. In his writ application, appellant

contended he received ineffective assistance of counsel. We affirm.

                                           BACKGROUND

       Appellant, a thirty-year-old citizen of Columbia, has resided in the United States since he

was two years old. He has had Lawful Permanent Resident status since 2004. His parents, four

siblings, and three children are United States citizens.

       In 2011, appellant was arrested and charged with burglary of a habitation. In 2012, while

out on bond on the burglary charge, appellant was arrested and charged with possession with

intent to deliver heroin in an amount of one gram or more but less than four grams. Trial counsel

was appointed to represent appellant on both pending charges and on a third charge for evading
arrest. On January 10, 2013, appellant entered a negotiated guilty plea to the heroin and burglary

offenses in exchange for four years of deferred adjudication community supervision. 1

          Subsequently, appellant was detained by Immigration and Customs Enforcement (“ICE”

hereinafter) and is in removal proceedings. The ICE Notice to Appear shows ICE recited

appellant’s three 2013 offenses and an earlier 2011 conviction for possession of marijuana. ICE

charged appellant with violating a state law relating to a controlled substance, conviction of an

aggravated felony relating to drug trafficking, and commission of two crimes involving moral

turpitude not arising out of a single scheme of criminal conduct. The immigration judge did not

find the moral turpitude allegation to be true.

          On July 5, 2013, appellant filed an application for writ of habeas corpus alleging he

received ineffective assistance of counsel in connection with his plea to the heroin offense.

Appellant submitted an affidavit in connection with his application and the trial court conducted

a hearing to elicit testimony from appellant’s trial counsel and his immigration counsel.

          During the habeas hearing, appellant’s immigration counsel, Isabel Cruz, testified she

would have advised appellant not to take the plea because any violation of a controlled substance

law that has an “intent to deliver aspect” qualifies as an aggravated felony. Because appellant

was a lawful permanent resident of the United States for the past five years and had resided in

the United States for the past seven years, he would have been eligible to apply for relief from

deportation had he not been convicted of an aggravated felony. Cruz testified appellant’s other

convictions would not have triggered automatic deportation. Had appellant pleaded guilty to

simple possession, Cruz believed he would have had a good chance to prevail in his immigration

case given his history, lengthy period of residency in the United States, and family ties.


     1
       The evading arrest charge was resolved separately. According to documents from the Department of Homeland Security admitted into
evidence, appellant was convicted of this offense on January 18, 2013. The record does not address what the disposition of this case entailed.



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       In his affidavit, appellant averred trial counsel never discussed immigration consequences

with him. According to appellant, trial counsel told him trial counsel did not know how the plea

would affect his immigration status and urged him to seek immigration counsel. Appellant

alleged he was suffering from withdrawal symptoms from his drug addiction and was not

thinking clearly. Appellant averred he did not intend to deliver the heroin and asserted that if he

had known he faced mandatory deportation, he would have elected to proceed with a jury trial to

contest the “intent to deliver” portion of the charge.

       Trial counsel testified. He described the evidence against appellant as showing appellant

was a passenger in a car police stopped for a traffic violation. Police discovered a plate with

what appeared to be heroin residue between appellant’s feet. Appellant attempted to flee on foot

and during the struggle with police, suffered a broken arm. The police discovered appellant was

carrying 1.03 grams of heroin in a small pill bottle. Appellant faced an “intent to deliver” charge

rather than simple possession because of the amount of the heroin he was carrying and the fact it

was portioned into fourteen individually wrapped amounts.

       Trial counsel testified the State was not willing to drop the “intent to deliver” aspect of

the charge and made a plea bargain offer to appellant of five years’ imprisonment in both the

burglary and drug cases. Trial counsel negotiated the plea offer down to four years’ deferred

adjudication. Trial counsel believed appellant had “a heroin problem” because appellant was

jailed after showing up at the probation office for his presentence report interview while

“intoxicated or on something.”

       Trial counsel testified he could not recall the specifics of his deportation advice to

appellant but he did recall knowing appellant was not a citizen of the United States and at some

point he “told him because of the nature of the charges, that he faced the real consequence or

likelihood of being deported.” On the date of the plea hearing, trial counsel went over the plea

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papers with appellant including the immigration admonishment. The written admonishment

given to appellant warned him that he was “almost certain” to be deported as a result of his guilty

plea.   Trial counsel used the language in the admonishment forms to advise appellant that he

“probably” would be deported. Trial counsel testified appellant did not ask any questions or

express any concern about his immigration status. Trial counsel believed he had already advised

appellant to seek the advice of an immigration attorney and had offered to provide a referral.

Appellant never requested a referral to an immigration attorney but did ask about getting a

lawyer for the purpose of suing the police department over the broken arm he suffered while

being arrested. Trial counsel testified appellant’s main concern was that he not go to prison.

Trial counsel testified he did not advise appellant whether to take the plea offered but merely laid

out appellant’s options.

        When asked to describe his trial strategy if appellant had elected to proceed to trial, trial

counsel testified:

        I may have filed a Motion to Suppress just in an effort to try to see if we could get
        it thrown out, but I wasn’t confident that would work. The drugs were found on
        his possession in a pill bottle where he ran from the scene. I was concerned that
        whether they tried that case first or the burglary case first, that he would be
        convicted and face the possibility of going to prison.

Trial counsel explained he was particularly concerned about the possibility appellant would be

sentenced to prison if he went to trial because the evidence of his other offenses would come into

evidence during the punishment phase. He could argue the amount possessed was too low to

qualify as an intent to deliver offense but appellant had confessed the burglary to police and he

had also told them he ran from them because he had drugs. Trial counsel summed up his

position by stating he thought appellant would have been convicted if he had gone to trial.

        Trial counsel admitted appellant was told during the plea hearing that he would receive

drug treatment. Trial counsel recalled that appellant and his family were happy with the outcome

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of the plea because they did not want him to receive prison time and thought he would be getting

help with his drug problem.

         The trial court denied relief and entered findings of fact and conclusions of law. The trial

court concluded appellant had failed to meet either prong of the Strickland standard for

evaluating ineffective assistance claims.

                          APPLICABLE LAW AND STANDARD OF REVIEW

         An applicant for habeas corpus relief must prove his claim by a preponderance of the

evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In post-trial habeas

proceedings in which the applicant received community supervision, the trial judge is the sole

finder of fact. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). The reviewing

court affords 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.              Id.   In

reviewing the trial court’s order, we view the facts in the light most favorable to the trial court’s

ruling, and we uphold the ruling absent an abuse of discretion. Kniatt, 206 S.W.3d at 664. If the

resolution of the ultimate question turns on an application of legal standards, we review the

determination de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per

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

2007).

         To show he received ineffective assistance of counsel, appellant must show (1) counsel=s

performance fell below an objective standard of reasonableness; and (2) a reasonable probability

exists that, but for counsel=s errors, the result would have been different. Padilla v. Kentucky,

559 U.S. 356, 366 (2010); Strickland v. Washington, 466 U.S. 668, 687B88, 694 (1984). In the

context of a complaint about counsel’s plea advice, appellant must show (1) counsel’s plea

advice did not fall within the wide range of competence demanded of attorneys in criminal cases

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and (2) there is a reasonable probability that, but for counsel’s deficient performance, appellant

would have insisted on going to trial rather than accepting the offer and pleading guilty. Ex

parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). To meet his burden under the

second prong, the applicant must convince the court that a decision to reject the plea bargain

would have been rational under the circumstances. See Padilla, 559 U.S. at 372. The defendant

need not show he would have received a more favorable outcome at trial. Johnson v. State, 169

S.W.3d 223, 231 (Tex. Crim. App. 2005). Appellant bears the burden of proving counsel was

ineffective by a preponderance of the evidence. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.

Crim. App. 2011).

       Inaccurate advice regarding deportation may constitute ineffective assistance.           See

Padilla, 559 U.S. at 366. When the consequences are “not succinct and straightforward,”

counsel’s duty is to advise the defendant of the possibility that the plea may carry a risk of

adverse immigration consequences. Id. at 369. When, however, federal immigration law clearly

specifies that the defendant will be deported, counsel has a duty to correctly advise the defendant

about the immigration consequences of the plea. Id. If counsel fails to give correct advice, thus

satisfying the first prong of the test, the defendant satisfies the second prong by showing that had

he been aware of the immigration consequences, a decision to reject the plea and proceed to trial

would have been rational under the circumstances. Id. at 372.

       The Immigration and Nationality Act authorizes the Attorney General of the United

States to order the removal of any alien convicted of, among other offenses, multiple criminal

offenses, an aggravated felony, or violations of controlled substance laws. See 8 U.S.C.A. §

1227(a))(2)(A)(ii), (iii); 1227(a)(2)(B)(i) (West 2005). Deferred adjudication is considered to be

a conviction if the defendant entered a guilty or no-contest plea and punishment is assessed. See

id. at § 1101(a)(48)(A).     A drug abuser or drug addict is also deportable.         See id. at §

                                                –6–
1227(a)(2)(B)(ii). If, however, the alien has been a permanent legal resident of the United States

for over five years, has resided continuously in the United States for at least seven years, and has

not been convicted of an aggravated felony, the Attorney General has the discretion to cancel

removal of the alien. See id. at § 1229b(a); Carachuri-Rosendo v. Holder, 560 U.S. 563, 566–67

(2010). Possession with intent to deliver heroin in an amount of one gram or more but less than

four grams qualifies as an aggravated felony under federal immigration law. See 8 U.S.C.A. §

1101(a)(43)(B) (West 2005).

                                             ANALYSIS

       The trial court concluded appellant failed to meet either prong of the Strickland standard.

Because we consider it decisive, we turn to the arguments and evidence regarding the second

prong. See Strickland, 466 U.S. at 697 (allowing reviewing court to dispose of ineffectiveness

claim on second prong without considering first prong). There being no brief to consider, we

turn to appellant’s contentions before the trial court.

       By pleading guilty to a drug trafficking offense, appellant lost the possibility of applying

for cancellation of removal and he thus faces mandatory deportation.           See 8 U.S.C.A. §§

1227(a)(2)(A)(iii), 1229b(a). Appellant contended counsel’s ineffective assistance harmed him

because had he understood the importance of the “intent to deliver” element, he would have gone

to trial to contest the “intent to deliver” element of the crime with the argument that he was a

user rather than a dealer. He contended that, had he been convicted of simple possession, he had

a good argument to press for cancellation of removal because of his longstanding residence and

family ties to the United States. See Ex parte Rodriguez, 378 S.W.3d 486, 490–91 (Tex. App.—

San Antonio 2012, pet. ref’d), cert. denied, 134 S.Ct. 785 (2013) (explaining factors for

consideration of cancellation of removal). Appellant contended the evidence shows it is unlikely




                                                 –7–
he would have given up his right to a jury trial given the harsh consequence of losing his family

and children.

       Among its findings of fact, the trial court found the State was unwilling to drop the

“intent to deliver” allegation or to reduce the offense to possession under one gram. The trial

court also found trial counsel advised appellant that “he was likely to be and probably would be

deported” and advised him to seek advice from an immigration attorney. The trial court found

appellant did not mention any immigration concerns to counsel and he did not seek immigration

counsel until after he entered his plea. The trial court also found appellant’s “main concern was

not going to jail or prison.” Furthermore, the trial court found the State’s initial plea bargain

offer to appellant required five years’ confinement. The trial court acknowledged the evidence

in the record showed appellant was arrested with fourteen individually wrapped heroin capsules

in his pocket weighing 1.03 grams and a plate of heroin residue at his feet. The trial court found

“the evidence of [appellant’s] guilt of possession with intent to deliver was overwhelming.”

       Based on its findings, the trial court concluded trial counsel informed appellant that he

“was likely to be and almost certain to be deported” and the trial court plea papers informed him

that he was “almost certain” to be deported. The trial court further concluded that appellant “was

more concerned with avoiding a jail sentence than about the immigration consequences of

entering a guilty plea.” The trial court further concluded appellant:

       has failed to show the availability of any plea bargain that would have allowed
       him to avoid the potential negative immigration consequences incident to his plea.
       He has failed to show any legal or factual defense to the offense charged. Thus,
       he failed to prove that it would have been rational for him to reject the plea
       bargain and proceed to trial.

Because the record evidence supports the trial court’s findings, we accord them due deference.

See Guerrero, 400 S.W.3d at 583.




                                                –8–
       Given that appellant knew he faced a strong likelihood of deportation if he entered a

guilty plea, his failure to express any concern about the immigration consequences of his plea,

his primary motivation of avoiding imprisonment, the felony punishment range for the offenses,

the strength of the State’s evidence that he intended to deliver the heroin, and the fact that a

favorable trial verdict on the “intent to deliver” element would still leave him facing deportation

proceedings with merely an opportunity to plead for cancellation of removal, we conclude the

trial court acted within its discretion in concluding appellant could not meet his burden to show

prejudice from trial counsel’s advice. See Padilla, 559 U.S. at 372; Ex parte Moreno, 382

S.W.3d 523, 530 (Tex. App.—Fort Worth 2012, pet. ref’d) (deferential standard of review

mandated support for trial court’s judgment call that habeas applicant failed to prove he would

not have pleaded guilty but for trial counsel’s allegedly deficient conduct).

       Finding no abuse of discretion, we affirm the trial court’s order denying relief on

appellant’s application for writ of habeas corpus.




                                                      /Jim Moseley/
                                                      JIM MOSELEY
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47
140264F.U05




                                                –9–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

EX PARTE ORLANDO GUTIERREZ                             On Appeal from the 363rd Judicial District
                                                       Court, Dallas County, Texas
No. 05-14-00264-CR                                     Trial Court Cause No. WX13-90023-W.
                                                       Opinion delivered by Justice Moseley.
                                                       Justices O’Neill and FitzGerald
                                                       participating.

       Based on the Court’s opinion of this date, the order of the trial court denying relief on
appellant’s application for writ of habeas corpus is AFFIRMED.


Judgment entered this 11th day of June, 2014.




                                                    /Jim Moseley/
                                                    JIM MOSELEY
                                                    JUSTICE




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