




02-11-272-CR





















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 cocaine[2]
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-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,
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 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 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 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.
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
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, 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?
          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]
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. 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. § 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 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
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




[1]See Tex. Code Crim.
Proc. Ann. art. 11.072 (West 2005). 


[2]See Tex. Health
& Safety Code Ann. § 481.115(a), (d) (West 2010).


[3]See id. §
481.112(a), (d) (West 2010).


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


[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).


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


[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.


