                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00272-CR

EX PARTE JOSE MORENO

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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION
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      Appellant Jose Moreno appeals the trial court‘s denial of the relief that he

requested in his application for a writ of habeas corpus.1 We affirm.

                               Background Facts

      Appellant is a citizen of Mexico and has been a lawful permanent resident

of the United States since, according to a federal document, 2002, when he

entered at El Paso. In 2007, a grand jury indicted appellant with committing two

felonies in 2006: possession of between four grams and two hundred grams of




      1
       See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005).
cocaine2 and possession of between four grams and two hundred grams of

cocaine with intent to deliver.3 In 2008, with the assistance of counsel, appellant

accepted a plea bargain in which he pled guilty to possessing cocaine in

exchange for dismissal of the possession-with-intent-to-deliver charge.       After

appellant admitted on the record to possessing cocaine and after the trial court

reviewed a presentence investigation report, the court deferred its adjudication of

appellant‘s guilt and placed him on community supervision for eight years.

Appellant did not appeal the trial court‘s judgment ordering community

supervision.

      In 2010, the United States Department of Homeland Security—Immigration

and Customs Enforcement arrested appellant and began removal proceedings

against him. The Department of Homeland Security alleged that appellant was

removable because he was ―convicted‖ for possessing cocaine.

      Appellant filed a petition for writ of habeas corpus in the trial court in

February 2011. In his petition, appellant alleged that he had received ineffective

assistance of counsel when deciding to plead guilty, claiming that if he would

have known that he was certain to be deported because of his plea, he would not

have pled guilty. In support of his petition, appellant offered his own affidavit.

Appellant swore in his affidavit that he had lived in the United States for twenty-


      2
       See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West 2010).
      3
       See id. § 481.112(a), (d) (West 2010).


                                        2
seven years.      He acknowledged that he had discussed the immigration

consequences of his guilty plea with his trial counsel, but he swore that counsel

stated, ―[D]o not worry.    If you are convicted, I will recommend you with an

immigration lawyer so your papers will not be taken from you.‖ Appellant also

stated in the affidavit that he would not have pled guilty had he known he would

be deported. Instead, appellant claimed that he would have ―fought [his] case‖ or

at least instructed his trial counsel to attempt to obtain a plea bargain that would

not have resulted in his automatic deportation.

      Appellant asserted in his affidavit that in the events leading to his arrest for

possessing cocaine, police had searched his home without a warrant and had

obtained statements from him without first issuing Miranda warnings.4 Along with

his affidavit, appellant submitted many signed letters from friends and family

members attesting to his connection to his family and community along with a

marriage license, birth certificates, and naturalization papers.

      The State filed a response to appellant‘s application and submitted an

affidavit from appellant‘s trial counsel. In the response, the State argued, in part,

that appellant had failed to prove that he was harmed by his trial counsel‘s advice

about the immigration consequences of his plea. In trial counsel‘s affidavit, he

stated,



      4
       See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630
(1966).


                                          3
      Prior to Mr. Moreno‘s plea of guilty, I advised him of possible
      immigration problems. I further told him that I did not practice
      immigration law and suggested he seek the advice of an attorney
      that practiced in that area. I further gave him the name and number
      of a lawyer that I knew to represent persons charged with
      immigration violations. To my knowledge, Mr. Moreno never
      contacted that lawyer.

Trial counsel also stated in his affidavit that during plea bargain negotiations, the

State never offered to recommend a punishment less than incarceration and that

at one point, the State had threatened to charge appellant with an even greater

drug possession charge.

      Concerning the facts that led to appellant‘s charges, trial counsel swore

that the police had seen appellant place a brown paper bag in a vehicle and that

the police later discovered that the bag contained ―approximately one and one

half kilos of cocaine.‖ Counsel stated that the police then obtained a search

warrant for appellant‘s home, where they found sixty grams of cocaine.

      The trial court denied the relief requested in appellant‘s application, and

the court adopted the State‘s proposed findings of fact and conclusions of law. In

its findings of fact, the court found that both trial counsel and the trial court

(verbally and in writing through admonishments)5 had warned appellant about the

possible immigration consequences of his guilty plea before he made it. In its

      5
        In July 2008, in conjunction with pleading guilty, appellant signed a
document that contained a paragraph stating, ―If you are not a citizen of the
United States of America, a plea of guilty or nolo contendere for this offense may
result in deportation, the exclusion from admission to this country, or the denial of
naturalization under federal law.‖ See Tex. Code Crim. Proc. Ann. art.
26.13(a)(4) (West Supp. 2012).


                                         4
conclusions of law, the trial court stated, in part, that appellant had failed to prove

that his attorney‘s representation fell below an objective standard of

reasonableness and had failed to carry his burden to show that he would not

have pled guilty had his attorney informed him of the consequences of the plea.

Appellant brought this appeal.

                        Ineffective Assistance of Counsel

      In his sole point, appellant contends that the trial court erred by denying

the relief requested in his application for a writ of habeas corpus because he

received ineffective assistance of counsel when deciding to plead guilty.

Appellant argues that his trial counsel‘s performance was deficient because

counsel failed to inform him that his plea would result in his automatic

deportation, and appellant contends that had he known that he was going to be

deported, he would not have pled guilty.

      We review a trial court‘s denial of the relief requested in an application for

a writ of habeas corpus under an abuse of discretion standard. See Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied, 549 U.S. 1052

(2006); Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet.

ref‘d); Ex parte Karlson, 282 S.W.3d 118, 127 (Tex. App.—Fort Worth 2009,

pets. ref‘d). This means we view the record in the light most favorable to the trial

court‘s ruling and afford great deference to its findings and conclusions,

especially when they involve determinations of credibility and demeanor. Mello,

355 S.W.3d at 832. Such deference must be given to the trial court even when


                                           5
all the evidence is submitted by affidavits. Karlson, 282 S.W.3d at 128. The test

for whether the trial court abused its discretion is whether its ruling was arbitrary

or unreasonable.      Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App.

2003).    The mere fact that a trial court may decide a matter within its

discretionary authority in a different manner than an appellate court would in a

similar circumstance does not demonstrate that an abuse of discretion occurred.

Id. We will only overrule the trial court‘s ruling on an application for a writ of

habeas corpus if the court‘s ruling was outside the zone of reasonable

disagreement. See Ex parte Alakayi, 102 S.W.3d 426, 430 (Tex. App.—Houston

[14th Dist.] 2003, pet. ref‘d).

      A defendant is entitled to effective assistance of counsel when entering a

guilty plea. Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366, 370–71 (1985);

Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). To establish

ineffective assistance of counsel, the appellant must show by a preponderance of

the evidence that his counsel‘s representation fell below the standard of

prevailing professional norms and that there is a reasonable probability that, but

for counsel‘s deficiency, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      Appellant contends that his trial counsel‘s performance fell below the

standard of prevailing professional norms when he failed to warn appellant that

he would be deported if he pled guilty.       Appellant argues that the Supreme


                                         6
Court‘s holding in Padilla v. Kentucky required his counsel to affirmatively advise

him of the particular immigration consequences of his plea and that merely

advising him of the possibility of deportation was insufficient. See 130 S. Ct.

1473, 1483–87 (2010).6      Appellant claims that because he became a lawful

permanent resident of the United States in 2002, under federal law, his guilty

plea and placement on deferred adjudication for a controlled substance offense

committed in 2006 meant that his deportation would be presumptively certain.

See 8 U.S.C.A. §§ 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i) (West 2005 & Supp.

2012), § 1229b(a) (West 2005); Moosa v. INS, 171 F.3d 994, 1005–06 (5th Cir.

1999) (explaining that Texas‘s form of deferred adjudication after a plea of guilty

is considered a conviction for immigration purposes); Ex parte Tanklevskaya, 361

S.W.3d 86, 89 (Tex. App.—Houston [1st Dist.] 2011, pet. filed) (citing 8 U.S.C.A.

§ 1182(a)(2)(A)(i)(II) concerning the immigration effect of a conviction relating to

a controlled substance). Appellant argues that because it was clear from the

applicable federal statutes that he would be deported upon pleading guilty,

counsel‘s statements that there was only a risk of deportation were insufficient to

meet counsel‘s duty under Padilla.



      6
       Before Padilla pled guilty to committing a drug offense, his counsel had
told him that he ―did not have to worry‖ about the immigration consequences of
the plea. Id. at 1478. The Supreme Court held that ―constitutionally competent
counsel would have advised [Padilla] that his conviction for drug distribution
made him subject to automatic deportation,‖ but the Supreme Court did not
determine whether Padilla had been prejudiced. Id.


                                         7
      In Padilla, the Supreme Court stated that when a ―deportation

consequence is truly clear, . . . the duty to give correct advice is equally clear.‖

130 S. Ct. at 1483. Some Texas courts have interpreted Padilla to mean that an

attorney has the duty to definitively tell his client that he will be deported for

certain guilty pleas, meaning that warnings to the client that he could be deported

are not sufficient. See, e.g., Tanklevskaya, 361 S.W.3d at 95–97 (citing United

States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (―A criminal defendant who

faces almost certain deportation is entitled to know more than that it is possible

that a guilty plea could lead to removal; he is entitled to know that it is a virtual

certainty.‖)). Whether Padilla applies retroactively to appellant‘s plea, which was

entered two years before the Supreme Court‘s decision in Padilla, is an open

question.7

      However, we need not decide whether trial counsel‘s performance was

deficient under the standards articulated in Padilla or whether Padilla applies

retroactively to this case. Instead, we may decide this case based upon our

deferential review of the trial court‘s decision that appellant failed to prove the


      7
        The Supreme Court recently granted certiorari on the question. See
Chaidez v. United States, 655 F.3d 684, 693–94 (7th Cir. 2011) (holding that
Padilla does not apply retroactively), cert. granted, 132 S. Ct. 2101 (2012); see
also United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012) (holding that
Padilla does not apply retroactively). The Texas Court of Criminal Appeals has
granted a petition for discretionary review of an opinion from a court of appeals
that discussed the question. See Ex parte De Los Reyes, 350 S.W.3d 723, 729
(Tex. App.—El Paso 2011, pet. granted) (holding that Padilla could be
retroactively applied in postconviction habeas corpus proceedings).


                                         8
prejudice requirement of the Strickland test. See Strickland, 466 U.S. at 697,

104 S. Ct. at 2069 (―[A] court need not determine whether counsel‘s performance

was deficient before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies.‖).

      The second prong of Strickland requires the defendant to show that

counsel‘s errors were so serious that they deprived the defendant of a fair and

reliable trial. Id. at 687, 104 S. Ct. at 2064. In other words, appellant must show

there is a reasonable probability that, but for counsel‘s alleged unprofessional

errors, the result of the proceeding would have been different. See id. at 694,

104 S. Ct. at 2068.          When we evaluate whether the alleged deficient

performance of counsel prejudiced a defendant when entering a guilty plea, we

consider whether the defendant showed that there was a reasonable probability

that, but for counsel‘s error, he would not have pled guilty but instead would have

gone to trial. Hill, 474 U.S. at 59, 106 S. Ct. at 370; Johnson v. State, 169

S.W.3d 223, 231 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1181 (2006).

Deprivation of a trial is a structural defect, which amounts to a serious denial of

the entire judicial proceeding itself. Johnson, 169 S.W.3d at 231. Therefore, the

focus of this prong is whether appellant was deprived of his right to a trial, not

whether the outcome of the trial would have been favorable to him.              Id.

Nonetheless, the Supreme Court indicated in Padilla that Padilla had the burden

of proving that it would have been rational for him to reject the plea bargain and

go to trial. 130 S. Ct. at 1485 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480,


                                         9
486, 120 S. Ct. 1029, 1036, 1039 (2000)). In determining whether a defendant

would have pled guilty but for counsel‘s deficient advice, a court is to consider

the circumstances surrounding the plea and the gravity of the alleged failure

material to that determination. Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim.

App. 1999).

      Viewing the evidence in the light most favorable to the trial court‘s ruling,

the trial court did not abuse its discretion by determining that appellant had not

met his burden, by a preponderance of the evidence, to show prejudice. The trial

court found that counsel and the trial court had warned appellant, verbally and in

writing, about the possible immigration consequences of his plea. The record

supports these findings. In fact, the record includes the following excerpt from

the hearing in which appellant pled guilty in front of the same judge who later

denied his habeas application:8

             THE COURT: . . . Let me ask you, Mr. Moreno, are you a
      citizen of the United States?

              ....

             [DEFENSE COUNSEL]:         He‘s here legally, but he‘s not a
      citizen.

            THE COURT: Let me advise you, sir, that a plea of guilty or a
      plea of nolo contendere could result in your being deported or it
      could also result in your being denied certain rights that you have
      under the Federal Immigration and Naturalization laws. Do you
      understand that?

      8
      Thus, the trial court was able to observe appellant‘s demeanor at the time
he made his guilty plea.


                                        10
             THE DEFENDANT: Yes, sir.

           THE COURT: And do you still wish to proceed with this
      proceeding, sir, now that you understand all of that?

             THE DEFENDANT: Yes, sir.

The court further found that trial counsel advised appellant to consult with an

immigration attorney to determine whether his guilty plea would affect his

immigration status and that appellant chose not to do so.

      In its final finding of fact, the trial court stated, ―[Appellant‘s] claim that he

would not have pled guilty had [his trial counsel] advised him that he would be

deported is inconsistent with the fact that [his trial counsel] advised [appellant] to

discuss the issue with an immigration lawyer before pleading and [appellant]

decided to plead anyway.‖        In other words, based on its consideration of

inferences that arose from appellant‘s actions at the time of his plea coupled with

the written and verbal admonishments, the trial court found that appellant‘s later

statement in his affidavit that he would not have pled guilty if he would have

known of the certainty of being deported was not credible. Based on that finding,

the trial court ruled that appellant had not met his burden to show prejudice.9




      9
       Specifically, the trial court concluded,

      Because [appellant] chose to plead guilty even after [his trial
      counsel] advised that he was not an immigration lawyer and that
      [appellant‘s] plea may have immigration consequences, [appellant]
      . . . failed to demonstrate that he would not have pled guilty had he
      been advised that he would be deported as a result of the plea.


                                          11
      When the trial court weighs conflicting evidence, it must make a judgment

call on the credibility of the evidence. See Hall v. State, 160 S.W.3d 24, 40 (Tex.

Crim. App. 2004), cert. denied, 545 U.S. 1141 (2005); Karlson, 282 S.W.3d at

130 (―When faced with conflicting evidence about the circumstances affecting

[counsel‘s] representation . . . , the trial court was required to resolve the conflict

and make a judgment call.‖) (footnote omitted). The trial court is not required to

accept appellant‘s factual statements made within his affidavit. See Karlson, 282

S.W.3d at 130; Shanklin v. State, 190 S.W.3d 154, 167 (Tex. App—Houston [1st

Dist.] 2005), pet. dism’d, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App.

2007); see also Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002)

(holding that in reviewing the denial of a motion to suppress evidence, the

appellate court ―correctly employed a deferential standard of review of the trial

court‘s resolution of the historical facts from conflicting affidavits‖). In this case,

the trial court‘s written factual findings show that the court believed appellant‘s

trial counsel and disbelieved appellant on the most critical statements in each of

their affidavits.   Based on the record, we cannot say that the trial court‘s

determination of appellant‘s credibility was outside the zone of reasonable

disagreement, so we will not disturb the trial court‘s conclusion that appellant

failed to meet his burden to show prejudice. The trial court could have rationally

determined, based upon appellant‘s apparent total inaction upon receiving

repeated verbal and written warnings about the possibility of his deportation, that

his immigration status was not his primary concern upon pleading guilty. Cf.


                                          12
Elizondo-Vasquez v. State, 361 S.W.3d 120, 123 (Tex. App.—Texarkana 2011,

no pet.) (―[The defendant] testified that his immigration status was his primary

concern and that he discussed it at every meeting with trial counsel. In those

discussions, he specifically inquired of trial counsel about the issue and the effect

his plea would have upon it, as well as potential outcomes.‖). Put another way, if

at the time of appellant‘s plea, his immigration status was the determinative

factor in the manner of resolving the charges against him, he certainly had a

strange way of demonstrating that concern.

      Furthermore, while appellant asserted in his affidavit that if he had known

that he would be deported by pleading guilty, he would have instructed his trial

counsel to try the case or to attempt to obtain a different plea bargain that did not

have the same immigration consequences, he did not offer any evidence

showing that the State would have considered such a plea bargain. There is no

evidence that the State was willing accept a plea bargain for anything other than

a controlled substance charge, which, under federal law, generally leads to

deportation. See 8 U.S.C.A. § 1227(a)(2)(B)(i). Instead, trial counsel‘s affidavit

indicates that if appellant had not pled guilty to possessing between four grams

and two hundred grams of cocaine, the State had considered adding a more

serious controlled substance charge. And at the very least, the State could have

proceeded on the possession-with-intent-to-deliver charge that it waived as part

of the plea bargain. That charge, a first-degree felony, could have carried a

consequence of up to life in prison.      See Tex. Health & Safety Code Ann.


                                         13
§ 481.112(a), (d); Tex. Penal Code Ann. § 12.32(a) (West 2011). Under these

circumstances, the trial court could have reasonably found that it was logical for

appellant to take the plea bargain for a lesser charge with the possibility of

receiving deferred adjudication, instead of incurring the time and expense of trial,

where appellant could have been convicted and sentenced to substantial

incarceration in addition to being deported. See Padilla, 130 S. Ct. at 1485 (―[T]o

obtain relief on this type of claim, a petitioner must convince the court that a

decision to reject the plea bargain would have been rational under the

circumstances.‖).

      In his brief, appellant argues that trial counsel‘s failure to definitively warn

him that he would be deported and his referral of appellant to outside immigration

counsel are sufficient on their own to show prejudice. Although appellant cites

Padilla in support of this argument, Padilla did not discard Strickland’s

requirement of establishing prejudice in addition to constitutionally deficient

representation, nor did the Court in Padilla presume prejudice. See id. at 1478,

1483–84, 1487 (holding that Padilla‘s trial counsel was constitutionally deficient

for telling Padilla not to worry about his immigration status but remanding the

case to a state court to determine whether Padilla suffered prejudice); Ex parte

Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012, pet. filed) (―Padilla did not

change the standard for proving prejudice.‖).

      Appellant also cites three Texas decisions that he believes support his

contention that he sufficiently proved prejudice. See De Los Reyes, 350 S.W.3d


                                         14
at 731; Ex parte Romero, 351 S.W.3d 127, 131 (Tex. App.—San Antonio 2011,

pet. filed); Tanklevskaya, 361 S.W.3d at 99. However, this case differs from

those cases in that the trial courts in those cases did not make any credibility

determinations on the evidence. See De Los Reyes, 350 S.W.3d at 727, 731

(court ruled only that trial court‘s admonishment cured any prejudice); Romero,

351 S.W.3d at 130–31 (no apparent findings or conclusions); Tanklevskaya, 361

S.W.3d at 91 (court issued no findings or conclusions). Because the trial court in

this case made explicit findings and conclusions on reasonable grounds

concerning appellant‘s failure to prove prejudice, we defer to those rulings. See

Manzi, 88 S.W.3d at 243–44; Ali, 368 S.W.3d at 841 (―Here, the trial court

expressly found that Ali provided ‗no credible evidence‘ that he was harmed by

counsel‘s allegedly deficient performance, and we are to defer to the trial court‘s

credibility determination.‖); Ex Parte Tovilla, No. 14-10-01120-CR, 2012 WL

113049, at *3 (Tex. App.—Houston [14th Dist.] Jan. 12, 2012, pet. ref‘d) (mem.

op., not designated for publication) (―[T]he trial court determined that it was

‗highly unlikely‘ that Tovilla would have insisted on a trial even if he knew that

accepting a guilty plea would ensure his removal.         We must defer to this

finding . . . .‖).

        This is not to say that a defendant‘s failure to heed counsel‘s warnings of

possible immigration consequences and to consult outside immigration counsel

will always disprove the prejudice prong of Strickland.         Determinations of

prejudice under Strickland must be conducted by considering the facts of each


                                         15
case. See Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495, 1512 (2000)

(explaining that Strickland requires a case-by-case examination of the evidence).

We do not hold that the evidence in this case is per se insufficient to show

prejudice. We cannot conclude, however, that the trial court lacked the authority

or a reasonable basis under the facts of this case to make the judgment call that

appellant failed to prove by a preponderance of the evidence that he would not

have pled guilty but for his trial counsel‘s allegedly deficient conduct.      We

therefore conclude that the trial court did not abuse its discretion by denying the

relief requested in appellant‘s application for a writ of habeas corpus, and we

overrule appellant‘s sole point. See Mello, 355 S.W.3d at 832.

                                   Conclusion

      Having overruled appellant‘s point, we affirm the trial court‘s judgment

denying the relief that appellant requested in his application for a writ of habeas

corpus.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

PUBLISH

DELIVERED: August 30, 2012




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