                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-282-CR


EX PARTE GINA T. IRWIN

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Gina T. Irwin appeals the denial of article 11.072 habeas corpus

relief. 2 Because the trial court did not abuse its discretion in denying habeas

relief, we affirm the trial court’s order.

      The uncontested allegations in Appellant’s pleadings indicate that she is

a foreign national who is neither a citizen nor a permanent resident of the

United States. The record is silent regarding her actual citizenship and her




      1
          … See Tex. R. App. P. 47.4.
      2
          … See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005).
familiarity with English at the time her plea was entered. There is no indication

of an inability clearly to speak or to understand English.

      Although Appellant states that she entered a no contest plea, she also

indicates that she entered into a “guilty-plea bargain,” and the judgment and

other records involving the plea indicate that she entered a plea of guilty.

Appellant entered her guilty plea to the offense of injury to a child on January

30, 1992. Pursuant to a plea bargain, she was placed on deferred adjudication

community supervision for a term of six years. She was ordered to pay court

costs, a Tarrant County Crime Stoppers fee, and community supervision fees;

perform 160 hours of community service; submit to testing for controlled

substances;    complete    an   adult   education    program;    and   complete

“[c]ounseling/[t]reatment at the direction of the probation officer,” including

anger control and “[p]arenting guidance counseling,” for which she was

required to provide proof of completion.     Appellant successfully completed

community supervision, and the indictment was dismissed from the court

docket on February 2, 1998.

      Appellant did not appeal or otherwise challenge the granting of deferred

adjudication until filing her February 2009 application for writ of habeas corpus




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pursuant to article 11.072. 3 In the application for writ of habeas corpus, she

argued that (1) newly discovered evidence establishes that she is actually

innocent of the offense of which she was convicted; 4 (2) trial counsel failed to

advise her of the immigration consequences of her plea, rendering her plea

involuntary and constituting ineffective assistance of counsel; and (3) trial

counsel failed to contact the complaining witness and to advise Appellant that

he was exculpating her, constituting ineffective assistance of counsel and

rendering her plea unknowingly and involuntarily entered.

      The trial court adopted the State’s proposed findings of fact and

conclusions of law, and they are included in the record. The trial court found

that, before accepting Appellant’s plea of guilty, the trial court had admonished

her that if she was not a citizen of the United States, a plea of guilty or nolo

contendere to the offense charged might result in her deportation, exclusion

from admission to this country, or denial of naturalization under federal law.

The trial court also found that Appellant had “signed that she understood each



      3
          … See id.
      4
       … We note that Appellant was not convicted but was placed on deferred
adjudication community supervision, that the criminal case against her was
ultimately dismissed, and that deferred adjudication was not a final conviction
for deportation purposes at the time she entered her plea. See Moosa v. I.N.S.,
171 F.3d 994, 1001 (5th Cir. 1999) (noting that the federal deportation law
changed effective April 1, 1997).

                                       3
of the written plea admonishments given by the trial court, that she understood

the consequences of [her] plea, and that her plea was knowingly, freely and

voluntarily entered.” The trial court also found that the court had fully and

adequately admonished Appellant regarding the deportation consequences of

a guilty plea in accordance with article 26.13(a)(4) of the code of criminal

procedure.5 The court also found that deportation is a collateral consequence

of a guilty plea and that, even if Appellant’s trial counsel’s deportation advice

was inadequate or inaccurate, it did not constitute deficient performance under

the Sixth Amendment since deportation is a collateral consequence of the guilty

plea.

        In addition to her plea of guilty, Appellant also signed a written judicial

confession in which she admitted her guilt as to every allegation in the

indictment.       Nowhere in the trial record is Appellant’s competence in the

English language questioned.

        As to the claims of ineffective assistance of counsel and actual

innocence, the trial court adopted the State’s proposed findings of fact detailing

Appellant’s judicial confession to the injuries to the child, detailing the size and

nature of the injuries to the child, and setting out the child’s statements to




        5
            … See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon Supp. 2009).

                                           4
investigators and the case worker that Appellant had spanked him with a belt

because she thought he was untruthful about the Thanksgiving holidays. The

trial court also found that the child had reported that Appellant had whipped

him with a coat hanger for getting into her things. The trial court noted that

Appellant had admitted to striking the child with a belt buckle and that she

bases her claim of actual innocence on the subsequent affidavit provided by the

child in 2008 regarding his 2001 interview. The trial court found as a matter

of fact that the complainant’s recantations were not credible in light of his prior

statements    and   bruises   in   November   1990,    as   well   as   Appellant’s

contemporaneous admission. Additionally, the complainant’s recantations did

not unquestionably establish Appellant’s innocence.

      In the 2008 affidavit, the now adult complainant attested to the

truthfulness of answers he gave in an interview on November 21, 2001. In

that interview, the complainant, then twenty-three years old, stated that

Appellant did, indeed, strike him with a belt but that they were “love taps.”

When pressed, he admitted that although some of the bruises were caused by

his own clumsiness and falling down because of a malformation of his feet,

Appellant also spanked him with a belt, just not very hard.

      Finally, in addressing her claims of ineffective assistance of counsel, the

trial court found that Appellant had indicated by her signature at the time of her

                                        5
plea that trial counsel had provided effective and competent representation and

that Appellant had been totally satisfied with counsel’s representation.

        Although Appellant claimed that trial counsel had failed to investigate the

child’s account of the offense and that he had failed to discover that the child

had denied that Appellant had injured him, Appellant presented no evidence

from trial counsel regarding what investigation he had undertaken on her behalf.

Consequently, the trial court found that Appellant had failed to demonstrate

that trial counsel did not engage in reasonable preparation for the defense of

the State’s case against her or that his decisions were not matters of

experience and strategy. The trial court found that Appellant had presented no

evidence contemporaneous to the offense, investigation, or plea showing that

the child had made any exculpatory statements regarding the offense at that

time. The only exculpatory statements relied on by Appellant were statements

made by the child in 2001 and reaffirmed by affidavit in 2008, approximately

eleven years and eighteen years after the offense was committed, and

approximately nine years and sixteen years after Appellant entered her guilty

plea.

        The trial court also found that Appellant had failed to prove that the child

had made any exculpatory statements at any time between the date of the

charged offense and the date of the guilty plea. Nor did Appellant show that

                                          6
trial counsel had failed to investigate the offense or to discover exculpatory

evidence that existed at the time.

      The trial court also found that had Appellant not pled guilty to the

offense, the State would have presented to a jury evidence that the child had

bruises all over his arms and a bruise on his leg the size of an orange. The child

told James M. Cockrell and case worker Melanie Cleveland that Appellant had

spanked him with a belt because she thought he was untruthful about the

Thanksgiving holidays. The child reported that Appellant had whipped him with

a coat hanger for getting into her things. According to Cockrell’s affidavit, the

child’s bruises seemed to have been caused by more than incidental contact

from a typical disciplinary action. Appellant admitted to striking the child with

a belt buckle.

      Consequently, had Appellant pled not guilty and gone to trial, the court

found that it was not reasonable to believe that a jury would have reached a

different   result   if   trial   counsel   had   done   more   investigation,   more

communication, or more preparation in this case, or if trial counsel had

employed different strategies.        The trial court found that trial counsel had

provided Appellant adequate representation and that there was no reasonable

probability that other attorneys would have obtained a different jury result. The




                                            7
trial court also found that Appellant was not denied effective assistance of

counsel by trial counsel’s representation.

      The trial court concluded as a matter of law that Appellant had failed to

sustain her burden to show (1) that trial counsel’s advice was not within the

range of competence demanded of attorneys in criminal cases and (2) that there

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

have pled guilty and instead would have insisted on going to trial. 6

      As the trial court concluded as a matter of law, because of the difficulties

inherent in viewing a trial counsel’s performance in hindsight, a reviewing court

should examine the totality of the representation and indulge in a strong

presumption that counsel’s performance falls within the wide range of

reasonable professional assistance.         The defendant must overcome the

presumption that, under the circumstances, the challenged action could be

considered sound trial strategy. 7




      6
      … See Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App.
1999).
      7
      … Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065
(1984); Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).

                                        8
      An applicant for habeas corpus relief has the burden of proving ineffective

assistance of counsel by a preponderance of the evidence. 8          Although trial

counsel has an obligation to make reasonable investigation and reasonable

decisions regarding the investigation, there is no evidence in the record before

us that trial counsel failed to do so. 9 Trial counsel is not required to investigate

every conceivable line of evidence, no matter how unlikely the effort would be

to assist the defendant. 10

      In summary, as the Texas Court of Criminal Appeals has explained,

             A guilty plea constitutes a waiver of three constitutional
      rights: the right to a jury trial, the right to confront one’s accusers,
      and the right not to incriminate oneself. Accordingly, a guilty plea,
      to be consistent with due process of law, must be entered
      knowingly, intelligently, and voluntarily. To be “voluntary,” a guilty
      plea must be the expression of the defendant’s own free will and
      must not be induced by threats, misrepresentations, or improper
      promises. A defendant’s sworn representation that his guilty plea
      is voluntary “constitute[s] a formidable barrier in any subsequent
      collateral proceedings.”

            An applicant seeking habeas corpus relief on the basis of an
      involuntary guilty plea must prove his claim by a preponderance of
      the evidence. An applicant’s delay in seeking habeas corpus relief


      8
      … Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995), cert.
denied, 517 U.S. 1106 (1996).
      9
      … See Conrad v. State, 77 S.W.3d 424, 425 (Tex. App.—Fort Worth
2002, pet. ref’d).
      10
           … Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 2541
(2003).

                                         9
      may prejudice the credibility of his claim. An appellate court
      reviewing a trial court’s ruling on a habeas claim must review the
      record evidence in the light most favorable to the trial court’s ruling
      and must uphold that ruling absent an abuse of discretion. 11

      Based on our review of the record before us, we find nothing in the

record contrary to the trial court’s findings of fact. Further, based upon our

review of the law and the record before us, we cannot say that the trial court

abused its discretion by denying Appellant habeas corpus relief. We therefore

affirm the trial court’s denial of habeas relief.


                                                    PER CURIAM


PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

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

DELIVERED: November 5, 2009




      11
         … Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)
(citations omitted), cert. denied, 549 U.S. 1052 (2006).

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