                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00536-CR


Ex parte Edgar Montes Fuertes             §   From the 235th District Court

                                          §   of Cooke County (97-194)

                                          §   January 31, 2013

                                          §   Per Curiam

                                          §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00536-CR


EX PARTE EDGAR
MONTES FUERTES




                                      ------------

          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

                                      ------------

                        MEMORANDUM OPINION1
                                      ------------

                                   I. Introduction

      In a single issue, Appellant Edgar Montes Fuertes appeals the denial of his

application for writ of habeas corpus. We affirm.

                                II. Background



      1
       See Tex. R. App. P. 47.4.
      In 2011, Fuertes filed an application for writ of habeas corpus under code

of criminal procedure article 11.072, alleging that his sexual assault conviction

was void because his guilty plea was rendered involuntary due, among other

things, to ineffective assistance of counsel.      At the hearing on Fuertes’s

application, the trial court admitted into evidence Fuertes’s sexual assault case

documents, including the pre-sentence investigation report (PSI), the reporter’s

record from Fuertes’s 1998 plea hearing, and the recording of Fuertes’s 1997

confession and the transcript of that recording.      The trial court also heard

testimony from David Wacker, the lawyer who had been appointed to represent

Fuertes in the sexual assault case, Fuertes, and Fuertes’s wife and father.

      The trial court denied Fuertes’s application for habeas corpus relief and

entered the following findings of fact pertinent to Fuertes’s sole issue in this

appeal:

             3. [Fuertes’s] attorney, David Wacker, had no independent
      recollection of the plea or the case that had been resolved nearly
      thirteen (13) years ago. At the current date, he could not locate any
      personal records of the case, which was court appointed. . . .

            ....

             12. The Court Reporter’s Record of the applicant’s plea of
      guilty makes it clear that the defendant understood the plea bargain
      at the time of his plea . . . .

            ....

            15.    The Probation Officer, who did the Pre-sentence
      Investigation for the Court testified that [Fuertes] stated to her that
      he had applied for residency in the United States, but had not yet


                                        3
      been granted and was not a resident alien at the time of the court
      proceedings . . . .

            16. [Fuertes] testified that . . . he first entered the United
      States illegally and when he reentered after deportation he again
      entered illegally . . . . Mr. Fuertes had made admissions against his
      penal interests prior to his guilty plea about his guilt of the sexual
      assault of a child charge . . . and the fact that he was an
      undocumented alien . . . . The Court specifically finds all these
      statements to be true.

           17. [Fuertes’s] wife . . . testified that [Fuertes] was deported
      sometime after he was placed on probation in this case and after
      some time he again illegally reentered the United States . . . .

            18. The Court finds that the record is silent as to the exact
      timing or as to the reason for the deportation.

             19. The Court also finds that the record does not prove what,
      if any, legal status the defendant had in the United States at the time
      of his plea other than illegal. Thus the Court finds that [Fuertes] was
      an undocumented alien at the time of his plea.

             20. Based on Mr. Wacker’s testimony, the Court finds that he
      told [Fuertes] only what was required by law at the time of this plea.

            ....

            22. The State introduced a tape recording of [Fuertes’s]
      recorded statement that was made on September 11, 1997
      concerning his involvement in the offense charged . . . the transcript
      of which was introduced as State’s Exhibit #3. This statement
      included a full confession to the offense of sexual assault of a child
      given to the investigating officer prior to his arrest . . . .

      The trial court concluded that Fuertes had established that Wacker failed

to properly advise him that removal from the United States was virtually certain

and   presumptively   mandatory,    making    counsel’s   performance     deficient.

However, the trial court also concluded that Fuertes could not demonstrate



                                        4
prejudice because he was an undocumented alien.              Further, the trial court

concluded:

      The Court finds that [Fuertes] gave a full voluntary confession to this
      offense to law enforcement, the prosecution’s case was strong, the
      defendant benefited from his plea in that he was released from
      custody and not arrested until latter [sic]. The fact that [Fuertes]
      knew he had entered the country illegally and was undocumented
      shows that he already had notice he was subject to deportation.
      The Court finds that the showing of actual prejudice could not be
      made in this instance.

This appeal followed.

                      III. Ineffective Assistance of Counsel

      In his sole issue, Fuertes argues that the trial court applied the wrong

standard when assessing prejudice and erred by holding that he failed to show

prejudice.   Specifically, Fuertes complains that to support its conclusion on

prejudice, the trial court improperly relied upon its assessment that he would not

have received a more favorable disposition of his case had he gone to trial.

A. Standard of Review

      We review the trial court’s denial of an application for writ of habeas corpus

for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App.), cert. denied, 549 U.S. 1052 (2006). Under this standard, we afford almost

total deference to the trial court’s findings of fact, particularly when those findings

are based upon an evaluation of credibility and demeanor. Ex parte Amezquita,

223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We apply the same deference to

the trial court’s application of law to questions of fact if resolution of those issues


                                          5
requires an evaluation of credibility and demeanor.       Ex parte Legrand, 291

S.W.3d 31, 35–36 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). If resolution

of the ultimate issue turns solely on a question of law, our review is de novo. Id.

The habeas applicant bears the burden of establishing by a preponderance of

the evidence that the facts entitle him to relief. Ex parte Richardson, 70 S.W.3d

865, 870 (Tex. Crim. App. 2002). We will uphold the habeas court’s judgment as

long as it is correct on any theory of law applicable to the case. Ex parte Taylor,

36 S.W.3d 883, 886 (Tex. Crim. App. 2001); Ex parte Primrose, 950 S.W.2d 775,

778 (Tex. App.—Fort Worth 1997, pet. ref’d).

B. Analysis

      Because the trial court found counsel’s performance deficient, we must

evaluate whether that performance prejudiced Fuertes when he entered his guilty

plea, considering on the facts of this case whether Fuertes showed that there

was a reasonable probability that, but for counsel’s error, he would not have

pleaded guilty but instead would have insisted on going to trial.      See Hill v.

Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Johnson v. State, 169

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

parte Moreno, 382 S.W.3d 523, 530 (Tex. App.—Fort Worth 2012, pet. ref’d).

Our focus is whether Fuertes was deprived of his right to a trial, not whether the

trial’s outcome would have been favorable to him. See Johnson, 169 S.W.3d at

231. That is, before relief may be granted, Fuertes had to convince the trial court

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

                                        6
circumstances. See Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010); see also

Hill, 474 U.S. at 59, 106 S. Ct. at 370.2 In determining whether a defendant

would not have pleaded 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).

      1. Fuertes’s Habeas Petition and Hearing

      In Fuertes’s habeas petition, he argued that his guilty plea was void

because (1) the events on which the prosecution was based did not occur in the

county in which he was prosecuted, leaving the trial court without jurisdiction over

his case; (2) his plea was involuntary because of Wacker’s ineffective assistance

in advising him to plead guilty in exchange for a one year probationary period, in

telling him that pleading guilty would not affect his immigration status, and in

failing to request a translator; and (3) Fuertes’s plea could not have been

voluntary because he did not have a translator and so could not understand the

proceedings.    Because Fuertes’s sole complaint in this appeal pertains to

ineffective assistance of counsel with regard to his immigration status, we will

only address the portion of the record that pertains to this issue.

      The record reflects that Fuertes entered the United States illegally in 1989

and was in the country illegally in 1997 when he confessed to the police that he

      2
       Whether Padilla applies retroactively to Fuertes’s plea is an open question
that we need not reach here. See Moreno, 382 S.W.3d at 527 n.7.

                                          7
had committed the sexual assault.         Fuertes testified that he had confessed

because he was afraid of going to jail.

      The transcript of the recording of Fuertes’s 1997 confession at the Cooke

County Sheriff’s Department reflects that Fuertes received, understood, and

waived his Miranda warnings. During his confession, Fuertes said that he was

twenty-four years old, acknowledged that he knew the pregnant complainant

M.W., and said that he could not be the father of M.W.’s child because he had

used a condom. Fuertes stated that M.W. told him that she was sixteen, that he

told M.W. that he was twenty-two, that he did not know that it was illegal to have

sexual intercourse with someone younger than age seventeen, that he had only

had sexual intercourse with M.W. once, and that he was unmarried but lived with

his girlfriend.3 Fuertes was arrested for the offense on October 24, 1997, and

charged with committing the second degree felony of sexual assault of M.W.,

who was under seventeen and not his spouse.

      Fuertes pleaded guilty in 1998 to the offense in exchange for a ten-year

suspended sentence and ten years of community supervision; the trial court

entered judgment reflecting this agreement. Fuertes was deported to Mexico two

months later and reentered the United States illegally in 2000, and in 2003, the


      3
        The PSI reflects that Fuertes and his “girlfriend” Lagordia had a six-year-
old child at the time. At the hearing on the habeas petition, Lagordia testified that
she and Fuertes had been married for sixteen years, since approximately 1995.
Fuertes’s father also testified that Fuertes was married in 1997 and that Fuertes’s
child with Lagordia was between four and six years old at the time.

                                          8
State filed a motion to revoke Fuertes’s community supervision. Fuertes spent a

month and a half in jail before returning to community supervision, and he

discharged his community supervision in 2008.

        At the habeas hearing in April 2011, Wacker, Fuertes’s former appointed

counsel, testified that he did not recognize Fuertes, had no independent

recollection of Fuertes’s case from over a decade before, and remembered no

conversations with Fuertes, although he agreed that as a matter of habit, he

would have gone through the complete set of plea papers with Fuertes, including

the statutory warnings concerning immigration status, deportation, and reentry

into the United States; the plea bargain agreement; and the consequences of the

plea.

        Fuertes testified that Wacker never told him anything about the possible

consequences of his plea with regard to his immigration status. However, the

plea hearing record shows that the trial judge explained to Fuertes that if he was

found guilty, the punishment range for the offense was not less than two years’ or

more than twenty years’ confinement and a fine not to exceed $10,000 and that

Fuertes said that he was pleading guilty because he was guilty. Fuertes said,

“Yes, sir,” when the trial judge asked him whether he understood that the plea

bargain was for a ten-year sentence, suspended, and ten years of community

supervision. Fuertes told the trial judge that he was not a United States citizen

and said, “yes,” when the trial judge asked, “You understand, do you not, that a

conviction for an offense like this could result in your being deported, or denied

                                        9
admission into the United States?” At the plea hearing, Fuertes agreed that his

attorney had explained that to him.

      During the habeas hearing, Fuertes testified that his wife was not a United

States citizen or legal resident but said that she was “waiting for permission.” He

did not testify with regard to his children’s citizenship—by the time of the hearing

on the habeas petition, Fuertes had two children—or his father’s citizenship or

residency status, although Fuertes did state that his father had applied for a work

permit for Fuertes in 1989, and that it had been temporarily approved in 1998.

      2. 8 U.S.C. § 1229b(b)

      On appeal, Fuertes argues that but for Wacker’s failure to inform him that

his guilty plea would render him ineligible for legal permanent residency, he

would not have pleaded guilty but instead would have insisted on going to trial,

and he complains that the trial court never addressed this question. Fuertes

acknowledges that the plea itself is not what made him inadmissible or

deportable; rather, he argues that his plea affected his ability to seek a

subsequent cancellation of removal under 8 U.S.C. § 1229b(b)(1) because it

called into question whether he had been “a person of good moral character”

during that time and that he would have been entitled to apply for relief under 8

U.S.C. § 1229b but for his plea.4 See 8 U.S.C.A. § 1229b (West 2005 & Supp.

2012).


      4
      Fuertes states that the applicable statutory provision is 8 U.S.C.
§ 1226b(b); however, there is no such provision. 8 U.S.C. § 1229b is entitled
                                        10
      We note first that Fuertes never expressly placed this particular issue

before the trial court.     See Tex. R. App. P. 33.1.      That is, in his habeas

application, Fuertes neither made any mention of 8 U.S.C. § 1229b nor

specifically alleged that had counsel correctly informed him of the immigration

consequences of his guilty plea, he would have pleaded not guilty and insisted

on going to trial.5 See Hill, 474 U.S. at 60, 106 S. Ct. at 371 (concluding that

Hill’s allegations failed to satisfy the prejudice requirement when he did not allege

in his habeas petition that, had counsel correctly informed him of his parole

eligibility date, he would have pleaded not guilty and insisted on going to trial and

when he did not allege any special circumstances that might support the

conclusion that he placed particular emphasis on his parole eligibility in deciding

whether to plead guilty).

      Likewise, at the hearing on his habeas petition, instead of testifying or

otherwise showing that he would have pleaded not guilty and proceeded to trial if

he had been warned of the immigration consequences of his guilty plea, and

instead of raising 8 U.S.C. § 1229b(b), Fuertes testified that his lawyer told him

that “it was an easy case and it was just going to be one year of probation,”


“Cancellation of removal; adjustment of status,” and in light of Fuertes’s
argument, we infer that he actually meant this section.
      5
        While an inference can be drawn that Fuertes would have pleaded not
guilty and insisted on going to trial from Fuertes’s statement that he relied on
counsel’s misrepresentations to his detriment “when he gave up the defenses to
which he was entitled at trial and, instead, pled guilty to the charge,” Fuertes did
not mention 8 U.S.C. § 1229b(b) anywhere in his habeas petition.

                                         11
which he chose to believe even after the trial judge expressly told him during the

plea hearing that it would be ten years of probation or between two and twenty

years’ confinement if he went to trial, that his lawyer did not warn him of any

immigration consequences, and that he was afraid of being incarcerated. At the

close of the hearing, Fuertes’s argument paralleled his petition and again failed

to raise 8 U.S.C. § 1229b(b). Therefore, he both forfeited his 8 U.S.C. § 1229b

argument on appeal and failed to show—based on the record before us—that

there was a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial. See Lovill v. State,

319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be

preserved if the legal basis of the complaint raised on appeal varies from the

complaint made at trial.”).

      Even if Fuertes had raised the 8 U.S.C. § 1229b(b) argument in the trial

court, however, the record does not reflect that he qualified for the exception at

the time he decided to plead guilty. With regard to 8 U.S.C. § 1229b(b)(1), the

attorney general may cancel the removal of an alien who is inadmissible or

deportable from the United States and may adjust the alien’s immigration status

to that of a lawful permanent resident if the alien:

      (A)      has been physically present in the United States for a continuous
            period of not less than 10 years immediately preceding the date of such
            application;




                                          12
      (B)      has been a person of good moral character during such period;[6

      (C)     has not been convicted of an offense under section 1182(a)(2),
            1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

      (D)      establishes that removal would result in exceptional and extremely
            unusual hardship to the alien’s spouse, parent, or child, who is a citizen
            of the United States or an alien lawfully admitted for permanent
            residence.

8 U.S.C.A. § 1229b(b)(1).

      As pointed out by the State, when Fuertes pleaded guilty, he had only

been physically present in the United States for nine years at most—from 1989 to

1998—so he would have been ineligible for relief under 8 U.S.C. § 1229b(b).

Further, there was no showing at the hearing on Fuertes’s habeas petition that

his wife, parent, or child was a United States citizen or an alien lawfully admitted

for permanent residence at the time that he pleaded guilty. To the contrary, at

the habeas hearing, Fuertes said that his wife was still “waiting for permission,”

he did not testify about whether either of his children had been born in the United

States, and he did not testify about his father’s immigration status; he gave no

testimony at his plea hearing about his family’s status.          And there was no

testimony at either the plea hearing or the habeas hearing about whether



      6
        8 U.S.C. § 1101 sets out nine classes that show lack of good moral
character, including being a habitual drunkard or someone whose income is
derived principally from illegal gambling activities, among other things. 8
U.S.C.A. § 1101(f) (West 2005 & Supp. 2012). However, it also provides that the
fact that someone does not fall within the nine classes “shall not preclude a
finding that for other reasons such person is or was not of good moral character.”
Id.

                                          13
Fuertes’s removal could have resulted in exceptional or extremely unusual

hardship to any of those individuals.

      Because the record does not reflect that Fuertes would have met 8 U.S.C.

§ 1229b(b)’s requirements when he made the decision to plead guilty or that he

could have subsequently qualified for it, we cannot say that he showed a

reasonable probability that, but for Wacker’s deficient performance, he would not

have pleaded guilty but instead would have insisted on going to trial. See Hill,

474 U.S. at 59, 106 S. Ct. at 370. Assuming, without deciding, that Padilla would

retroactively apply to Fuertes’s case, Fuertes’s potential to qualify under 8 U.S.C.

§ 1229b(b) was unclear and uncertain when he pleaded guilty, as he could have

been deported at any time before reaching the ten-year period and the record

does not reflect that he had a spouse, parent, or child who was a United States

citizen or lawful permanent resident who would experience exceptional or

extremely unusual hardship at his removal. See Padilla, 130 S. Ct. at 1483

(noting that when the deportation consequences of a particular plea are unclear

or uncertain, the duty of the attorney is limited to do no more than to advise the

noncitizen client that pending criminal charges may carry a risk of adverse

immigration consequences).       Therefore, even if Fuertes had raised his issue

regarding 8 U.S.C. § 1229b(b) for the trial court to consider, we cannot say that

the trial court would have abused its discretion by denying his petition.       We

overrule Fuertes’s sole issue.



                                        14
                                IV. Conclusion

      Having overruled Fuertes’s sole issue, we affirm the trial court’s judgment.



                                                   PER CURIAM


PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 31, 2013




                                        15
