Opinion issued July 24, 2014




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-13-01042-CR
                            ———————————
                           EX PARTE WEI HSI CHIEN



                    On Appeal from the 400th District Court
                            Fort Bend County, Texas
                    Trial Court Case No. 99-DCR-32610HC2



                          MEMORANDUM OPINION

      Wei Hsi Chien appeals from the trial court’s order denying his petition for

writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal

Procedure.1 Chien contends that his trial counsel rendered ineffective assistance of


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      See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for
      appeal in felony or misdemeanor case in which applicant seeks relief from order or
      judgment of conviction ordering community supervision).
counsel in the year 2000 when they purportedly affirmatively misadvised Chien of

the immigration consequences of his plea of no contest. We hold that Padilla v.

Kentucky, 559 U.S. 356 (2010), does not apply retroactively to this case, and that

even if Chien’s counsel’s performance was deficient under pre-Padilla law, the

trial court did not err in concluding that Chien was not prejudiced by the alleged

deficiency. Accordingly, we affirm the trial court’s judgment.

                                   Background

      On May 19, 2000, Chien pleaded no contest to a charge of credit card abuse,

a state jail felony. He was sentenced to four years’ deferred adjudication and

assessed a $500 fine, plus court costs. He also was required to perform 250 hours

of community service, pay restitution in the amount of $1,178.44, make a $50.00

donation to Fort Bend County Crime Stoppers, and write a letter of apology.

      Twelve years later, on May 21, 2012, Chien filed his application for writ of

habeas corpus. Chien contended that his no-contest plea was involuntary, asserting

that Padilla applied retroactively and that his trial counsel were ineffective under

Strickland v. Washington, 466 U.S. 668 (1984), because they did not correctly

advise Chien of the immigration consequences of his plea. In 2013, after the

United States Supreme Court issued its opinion in Chaidez v. United States, 133 S.

Ct. 1103 (2013) and the Court of Criminal Appeals issued Ex parte De Los Reyes,

392 S.W.3d 675 (Tex. Crim. App. 2013), Chien filed an amended application in


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which he acknowledged that Padilla does not apply retroactively. Nevertheless,

Chien asserted in his amended application that he is entitled to habeas relief under

pre-Padilla law because his counsel “rendered affirmative misadvice.”

A.    Standard of Review and Applicable Law

      We review a trial court’s denial of habeas corpus relief for an abuse of

discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex

parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary,

333 S.W.3d 782, 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In

conducting our review, we view the facts in the light most favorable to the trial

court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We

review questions of law de novo. Ex parte Necessary, 333 S.W.3d at 787.

      The test for determining the validity of a guilty plea is whether the plea

represents a voluntary and intelligent choice among the alternative courses of

action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31

(1970). The Strickland two-pronged test for ineffective assistance of counsel

applies in the plea context. Hill v. Lockhart, 474 U.S. 52, 58 (1985) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective

assistance of counsel, a criminal defendant must prove by a preponderance of the

evidence that (1) his trial counsel’s representation was deficient in that it fell below

the standard of prevailing professional norms and (2) there is a reasonable


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probability that, but for counsel’s deficiency, the result of the proceeding would

have been different. See Strickland, 466 U.S. at 687; Salinas v. State, 163 S.W.3d

734, 740 (Tex. Crim. App. 2005). Failure to show either deficient performance or

sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at

697.

       In order to satisfy the second (prejudice) prong of the Strickland test in the

guilty plea context, a criminal defendant or habeas corpus applicant must show that

there is a reasonable probability that, but for his trial counsel’s errors, he would not

have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Ex

parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.1997). When determining

whether a defendant would have refused to plead guilty but for the allegedly

deficient advice of his trial counsel, we consider the circumstances surrounding the

plea and the gravity of the misrepresentation material to that determination. Ex

parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App.1999).

B.     Analysis

       In the trial court, appellant argued that the holding in Padilla should be

applied retroactively. The United States Supreme Court held in Chaidez that

Padilla announced a “new rule” of criminal procedure so that “a person whose

conviction is already final may not benefit from the decision in a habeas or similar

proceeding.” Chaidez v. United States at 1107–08 (citing Teague v. Lane, 489 U.S.

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288, 301 (1989)). In addition, the Court of Criminal Appeals held that Padilla’s

rule does not apply retroactively under the Texas Constitution. See Ex parte De

Los Reyes, 392 S.W.3d at 679 (“defendants whose convictions became final prior

to Padilla [March 31, 2010]….cannot benefit from its holding”). Accordingly, as

Chien acknowledges, Padilla does not apply retroactively to the representation in

the underlying case. See Allen v. Hardy, 478 U.S. 255, 258 n.1 (1986) (“Final”

means judgment of conviction rendered, the availability of appeal exhausted, and

the time for petition for certiorari has elapsed.”); Ex Parte Martinez, 2013 WL

2949546, *3 (Tex. App.—Corpus Christi June 13, 2013, no pet.) (“conviction

became final when the trial court accepted his guilty plea and entered an order of

deferred adjudication”).

   Citing Ex parte Arjona, 402 S.W.3d 312 (Tex. App.—Beaumont 2013, no pet.),

Chien argues that he nevertheless is entitled to relief under pre-Padilla law because

his plea counsel did not merely fail to advise him of the immigration consequences

of his plea but, rather, affirmatively gave him incorrect advice about those

consequences. Ex parte Aronja notes in passing that there is “a possibility of an

assumed duty by counsel” who affirmatively rendered immigration advice pre-

Padilla. Id. at 319. But, ultimately, the Ninth Court of Appeals did not analyze

the merits of Aronja’s claim; it instead set aside the trial court’s order denying the

application and remanded the case to the trial court for a hearing, because the trial

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court had twice scheduled but never held one. Id. at 320.       Ex parte Aronja thus

does not support Chien’s contention that he is entitled to habeas relief here.

      Even if Chien could make a case under pre-Padilla law that his counsel’s

performance was constitutionally deficient, we conclude, based upon our review of

the trial court’s findings and the record, that Chien failed to prove the second prong

of his ineffective assistance claim. See Strickland, 466 U.S. at 697 (“[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.”).

This prong required Chien to show a reasonable probability that, but for his

counsel’s erroneous immigration advice, he would have rejected the plea bargain

and insisted on going to trial. Hill, 474 U.S. at 59.

      Here, only Chien’s cousin’s affidavit (his cousin is his co-defendant, Pei

Wen Chen) and that of his father, Tzuey-Zen Chien, support Chien’s contentions

that remaining in the United States was so important to him that he would have

rejected the plea agreement but for his counsel’s deficient performance. The trial

court did not credit this evidence; it expressly found that Chien “did not prove that

a decision to reject the plea bargain and proceed to trial would have been rational

in this case.” We conclude that we may not disturb this finding on appeal.

      First, Chien’s expert, Scott Benson, averred that Chien became immediately

deportable upon pleading no contest to the credit card abuse charge.             But,

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importantly, Chien would have faced the same immigration consequence if he

decided to go to trial and was found guilty by a jury. 8 U.S.C. § 1227 (a)(2)(A)(i)

(Supp. 2013) (alien convicted of a crime involving moral turpitude within five

years after the date of admission and for which a sentence of one year or longer

may be imposed is deportable); LaHood v. State, 171 S.W.3d 613, 620 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (noting that theft is a crime of moral

turpitude and credit card abuse similarly is a crime of deception); United States v.

Ramirez, 367 F.3d 274, 277 (5th Cir. 2004) (“The term ‘conviction’ is now defined

as a formal judgment of guilt entered by the court or, if an adjudication of guilt has

been withheld, where the judge has imposed some form of punishment, penalty or

restraint on the alien’s liberty”). And, if he had risked going to trial, he faced a

sentence of up to two years’ confinement and a $10,000 fine if found guilty. TEX.

PEN. CODE ANN. § 12.35 (a),(b) (West Supp. 2013). Accepting the State’s plea

offer, by contrast, allowed Chien to avoid confinement altogether.

      Second, the trial court found that Chien “presented no credible evidence” of

any defense to the credit card abuse charge. Indeed, the offense report in the

record reflects that Chien confessed to the crime. Thus, the State’s case against

Chien was strong.

      Third, the trial court credited the affidavit of Chien’s counsel to the effect

that “[t]here was no better deal available to Chien as the prosecutor was not willing

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to offer a plea to a reduced charge.” As a result, Chien’s only options were to

accept the plea presented or risk being found guilty at trial, in which case he faced

up to 2 years’ confinement, a fine of up to $10,000.00, and deportation.

      The record supports the trial court’s conclusion that Chien did not

demonstrate by a preponderance of the evidence that it would have been rational

for him to reject the plea bargain and proceed to trial.    Therefore, we hold that

Chien was not prejudiced as a result of any alleged deficient conduct by his

counsel in the underlying case. See Ex parte Luna, 401 S.W.3d 329 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (affirming trial court’s denial of habeas relief

because, even if applicant could have made a case under pre-Padilla law that his

counsel’s performance was constitutionally deficient, applicant failed to prove the

second prong Strickland claim where he was subject to removal regardless of

whether he plead guilty or was found guilty by a jury and evidence against

applicant in underlying case was strong).

                                    Conclusion

      We affirm the trial court’s judgment.


                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

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


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