Opinion filed November 21, 2019




                                                In The


            Eleventh Court of Appeals
                                            __________

                                     No. 11-19-00223-CR
                                         __________

             EX PARTE ROGELIO VILLEGAS DOMINQUEZ

                         On Appeal from the 32nd District Court
                                 Nolan County, Texas
                             Trial Court Cause No. 12318


                          MEMORANDUM OPINION
        Appellant, Rogelio Villegas Dominquez,1 appeals from the denial of his
application for writ of habeas corpus. We affirm.
                                         Background Facts
        Appellant seeks habeas corpus relief from a 2018 judgment of conviction for
the third-degree felony offense of bail jumping and failure to appear. The record
reflects that Appellant entered into a plea agreement in which he agreed to plead

        1
         We note that the spelling of Appellant’s name on the application for writ of habeas corpus and
some of the other documents in the clerk’s record is “Dominguez” but that the spelling is “Dominquez” on
the order denying habeas relief, the indictment, and the judgment of conviction from which habeas relief is
sought.
guilty to the offense of bail jumping and failure to appear in exchange for the State’s
agreement to dismiss a pending case against Appellant for the offense of possession
of methamphetamine and to recommend that Appellant’s punishment for the bail-
jumping offense be assessed at eight years’ confinement—probated for two years—
plus a fine of $1,000. The trial court admonished Appellant, accepted his plea, found
him guilty, and assessed his punishment in accordance with the terms of the plea
agreement. After the conviction was added as a charge in immigration removal
proceedings against Appellant, he sought habeas corpus relief pursuant to
Article 11.072.   See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2015).
Appellant asserted in his Article 11.072 application that he received ineffective
assistance of counsel with respect to the advice of his trial counsel regarding
deportation and that he would have rejected the plea bargain and gone to trial instead
of pleading guilty if his attorney had properly advised him of the consequences of
his plea.
                                       Analysis
      In his sole issue on appeal, Appellant asserts that the trial court abused its
discretion when it denied his application for writ of habeas corpus. Appellant
contends that his plea was involuntary due to the ineffective assistance of trial
counsel because trial counsel failed to correctly advise Appellant about the
deportation consequences of his plea. Appellant relies upon Padilla v. Kentucky and
its progeny as support for his contention. See Padilla v. Kentucky, 559 U.S. 356
(2010).
      In Padilla, the Supreme Court held that “counsel must inform her client
whether his plea carries a risk of deportation.” Id. at 374. The Court determined
that trial counsel may render ineffective assistance based upon counsel’s advice, or
lack thereof, concerning the deportation consequences of a guilty plea; the Court


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stated that, when such consequences are “truly clear,” counsel’s duty to advise the
defendant regarding those consequences is “equally clear.” Id. at 369. The Court
emphasized that the severity of deportation “underscores how critical it is for counsel
to inform her noncitizen client that he faces a risk of deportation.” Id. at 373–74.
The Court observed that the “drastic measure” of deportation “is now virtually
inevitable for a vast number of noncitizens convicted of crimes.” Id. at 360 (quoting
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (first quote)).
      Under federal immigration law, a noncitizen “who is convicted of an
aggravated felony at any time after admission is deportable.”               8 U.S.C.
§ 1227(a)(2)(A)(iii). The offense to which Appellant pleaded guilty is an aggravated
felony as defined by federal immigration law. Id. § 1101(a)(43)(T) (defining
“aggravated felony” to include “an offense relating to a failure to appear before a
court pursuant to a court order to answer to or dispose of a charge of a felony for
which a sentence of 2 years’ imprisonment or more may be imposed”).
      When an application for writ of habeas corpus is filed pursuant to
Article 11.072, the trial court is the sole factfinder. Ex parte Torres, 483 S.W.3d 35,
42 (Tex. Crim. App. 2016) (citing State v. Guerrero, 400 S.W.3d 576, 583 (Tex.
Crim. App. 2013)). We review the trial court’s ruling for an abuse of discretion.
Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An appellate court
must afford almost total deference to the trial court’s factual findings when those
findings are supported by the record. Torres, 483 S.W.3d at 42.
      To demonstrate that he is entitled to postconviction relief on the basis of
ineffective assistance of counsel, an applicant must prove by a preponderance of the
evidence both (1) that counsel’s performance was deficient, i.e., that it fell below an
objective standard of reasonableness, and (2) that the applicant was prejudiced as a
result of counsel’s errors. Id. at 43; see Strickland v. Washington, 466 U.S. 668,


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687, 693 (1984). In the context of an Article 11.072 challenge to a guilty plea, the
focus of the second prong of Strickland—the prejudice inquiry—is on “whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process” and whether the applicant has shown that, but for trial counsel’s errors, the
applicant would not have pleaded guilty and would have insisted on going to trial.
Torres, 483 S.W.3d at 43 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Under
the prejudice inquiry in a Padilla situation, the applicant must “convince the court
that a decision to reject the plea bargain would have been rational under the
circumstances.” Id. at 48 (quoting Padilla, 559 U.S. at 372). The Texas Court of
Criminal Appeals noted in Torres that various factors have been considered by
courts when addressing the prejudice inquiry in a Padilla situation, including the
evidence supporting an applicant’s assertions, the likelihood of his success at trial,
the risks the applicant would have faced at trial, the benefits received from the plea
bargain, and the trial court’s admonishments. Id. (citing United States v. Kayode,
777 F.3d 719, 725 (5th Cir. 2014)).
      After Appellant filed the application for writ of habeas corpus in the trial
court, the trial court requested that Appellant and his trial counsel submit affidavits
to the trial court. See CRIM. PROC. art. 11.072, § 6(b). Appellant averred in his
affidavit that he had met trial counsel for the first time on the day of the guilty plea;
that Appellant had explained to trial counsel the circumstances surrounding his
failure to appear in court, including his excuse that his truck had broken down on the
way to the courthouse; that Appellant had expressed concern about his immigration
status; and that Appellant had informed trial counsel that Appellant’s priority was to
stay in the United States. Appellant claimed that his trial counsel said that there
would be no immigration consequences from accepting the plea deal offered by the
State. Appellant averred that he “only pleaded guilty” because of trial counsel’s


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advice that Appellant “would not suffer any adverse immigration consequences.”
Appellant also stated that, if he had known that trial counsel’s advice was incorrect,
he “would not have pleaded guilty and would have instead insisted on going to trial.”
      Trial counsel likewise submitted an affidavit to the trial court; however, trial
counsel’s affidavit differs from Appellant’s. Trial counsel indicated in his affidavit
that, on the day of the plea hearing, he took Appellant and the interpreter provided
by the trial court into a private room and requested that the interpreter admonish
Appellant. Trial counsel averred that he advised Appellant, through the interpreter,
of the immigration consequences of pleading guilty and “made certain that
[Appellant] was aware that deportation was possible as a result of pleading guilty”
(emphasis added).
      The reporter’s record from the plea hearing reflects that the trial court
admonished Appellant that, if he was not a citizen of the United States and if he was
found guilty, “it could cause you to be deported, it could affect any resident alien
status, or cause you to be denied citizenship.” Among the plea papers in the clerk’s
record is a document that was signed by Appellant and his trial counsel. That
document, “PLEA ADMONISHMENT – NON-CITIZENSHIP,” reads as follows:
             I, Rogelio Dominquez, Defendant in this cause of action, certify
      that I am a non-citizen of the United States. I affirm that my attorney
      has advised me of the application of federal law regarding the
      consequences of pleading nolo contendere or guilty in this case. By my
      signature below, I acknowledge that I understand the application of the
      federal law described below; I understand the consequences of my plea
      to the offense in this case; and, understanding the law and consequences
      of my plea, I intelligently, knowingly and voluntarily persist in my plea.
            The applicable federal law which has been explained to me
      includes, but is not limited to:
      [Here, the document references 8 U.S.C. ch. 12 (immigration) and 8
      U.S.C. §§ 1227 (deportable aliens), 1229b (cancellation of removal;


                                          5
      adjustment of status), 1182 (inadmissible aliens) and a website address
      where the text of those statutes is available.]
             I further affirm that I would nevertheless persist in my plea
      despite the applicable federal law because my Judicial Confession
      entered in this case is true and because the plea recommendation in the
      case is both fair and acceptable to me, even if deportation, exclusion
      from admission to this country or denial of naturalization under federal
      law is guaranteed to result from it.
In this document, trial counsel indicated that, with the interpreter’s help, trial counsel
fully advised Appellant regarding the application of the above-referenced federal
law and the consequences of his plea.
      The trial court reviewed the application for writ of habeas corpus, the waivers
filed, the affidavits of Appellant and his trial counsel, and the transcript of the guilty
plea hearing. Based on its review of those documents, the trial court found that
Appellant “was properly admonished by counsel and the Court about possible
deportation before entering a guilty plea” (emphasis added). The trial court further
found:
            Additionally, a [S]panish-speaking interpreter (Mr. Sammy
      Alvarez) was sworn and participated in all aspects of the plea as the
      Defendant spoke with counsel and the Court. Therefore, it is the
      finding of the Court that the Defendant was aware of possible
      deportation as he knowingly and voluntarily entered his plea of guilt to
      the charge of Failure to Appear.
(Emphasis added).
      With respect to the first prong of the Strickland/Padilla analysis, we cannot
determine from the record before us that trial counsel properly advised Appellant
that deportation was a “presumptively mandatory” consequence, as opposed to a
possibility, of his guilty plea. Torres, 483 S.W.3d at 44 (quoting Padilla, 559 U.S.
at 369). The trial court’s finding echoed trial counsel’s affidavit in regard to
Appellant having been informed that deportation was “possible.” Because Padilla

                                            6
requires that an attorney advise his client regarding the presumptively mandatory
deportation consequences of a conviction for an “aggravated felony,” see Torres,
483 S.W.3d at 44–45, we will move on to the second prong of Strickland—the
prejudice prong.
      Under the circumstances in this case, we cannot hold that Appellant
established the prejudice prong of his claim of ineffective assistance of counsel. In
light of the risk of going to trial on the multiple charges against him; the likelihood
that Appellant would have been convicted of the charges against him; the relative
benefit of his plea bargain, which resulted in Appellant being placed on community
supervision rather than facing the possibility of a term of imprisonment for multiple
felonies; and the contents of the non-citizenship plea admonishment, which was
signed by Appellant and which included an acknowledgement that Appellant would
have persisted in his guilty plea “despite the applicable federal law . . . even if
deportation, exclusion from admission to this country or denial of naturalization
under federal law is guaranteed to result from it,” we conclude that the trial court did
not abuse its discretion when it denied the relief sought by Appellant in his
Article 11.072 application for writ of habeas corpus. It was well within the trial
court’s discretion to determine that Appellant failed to show that trial counsel’s
performance, even if constitutionally ineffective, affected the outcome of the plea
process and that, if trial counsel had properly admonished Appellant, Appellant
would not have pleaded guilty and would have insisted on going to trial. See Torres,
483 S.W.3d at 43 (citing Hill, 474 U.S. at 59). Accordingly, we overrule Appellant’s
sole issue on appeal.




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                                         This Court’s Ruling
        We cannot conclude that the trial court abused its discretion when it denied
Appellant’s application for writ of habeas corpus. Accordingly, we affirm the order
of the trial court.


                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


November 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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