Affirmed and Memorandum Opinion filed October 13, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00337-CR

                        EX PARTE ALICIA BRUMANT



                    On Appeal from the 351st District Court
                            Harris County, Texas
                       Trial Court Cause No. 875141-B

                 MEMORANDUM                      OPINION


      Appellant Alicia Brumant appeals from the trial court’s order denying her
application for writ of habeas corpus. Appellant contends that her trial counsel
rendered ineffective assistance in that she failed to advise appellant of the
immigration consequences of her guilty plea to an underlying drug offense, and she
had a conflict of interest in that she represented both appellant and appellant’s co-
defendant. Following the Supreme Court decision in Chaidez v. United States, –––
U.S. ––––, 133 S.Ct. 1103 (2013), and the Court of Criminal Appeals decision in
Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013), we hold that the
rule of Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively to
cases like this one, which became final prior to Padilla’s holding. We further hold
that the trial court did not abuse its discretion by finding that appellant failed to
establish an actual conflict of interest that existed at the time of appellant’s plea.
We affirm the trial court’s order denying appellant’s application for writ of habeas
corpus.

                                   BACKGROUND

      On October 5, 2001, appellant entered a guilty plea to the offense of
possession of methamphetamine. See Tex. Health & Safety Code Ann.
§§ 481.116(a), (b) & 481.103(a)(1) (West 2010). In exchange for appellant’s plea
of guilty the State agreed to recommend three years’ deferred-adjudication
community supervision. Appellant received the panoply of admonishments
required by article 26.13 of the Code of Criminal Procedure and placed her initials
next to each applicable admonishment, including a paragraph, which reads as
follows:

      if you are not a citizen of the United States of America, a plea of
      guilty or nolo contendere for the offense with which you are charged
      in this case may result in your deportation, or your exclusion from
      admission to this country, or your denial of naturalization under
      federal law.

The trial court followed the plea agreement and assessed punishment at three
years’ deferred-adjudication community supervision. On October 26, 2004, the
trial court signed an order finding that appellant satisfactorily completed the
deferred adjudication period and dismissing the proceedings against her.

      Ten years later, on October 29, 2014, appellant filed an application for writ
of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal

                                          2
Procedure. Appellant alleged that she would not have pled guilty to the offense if
her attorney had properly advised her of the immigration consequences of her plea.
Appellant further alleged that her attorney had a conflict of interest because trial
counsel represented both appellant and her boyfriend at the time of the plea. The
trial court did not hold a hearing on appellant’s application. Appellant attached to
her application, among other things, an affidavit stating that her trial attorney,
Cheryl Irvin, (1) did not inform appellant that her plea might result in immigration
consequences including deportation; and (2) told appellant that if she pled guilty
and completed community supervision, after seven years, appellant’s record could
be sealed. Appellant further alleged that her defense to the possession offense was
that the drugs belonged to Keitrica Pickett, appellant’s boyfriend at the time of the
plea, now her husband. Pickett executed an affidavit stating he told Irvin at the
time of appellant’s plea that the drugs belonged to him.

      Irvin executed an affidavit in which she averred that she advised appellant
“that any plea in this matter may have deportation consequences but that I could
not advise her what they would be.” Irvin recommended appellant consult an
expert in immigration law.

      The trial court denied appellant’s application for writ of habeas corpus
finding that appellant failed to demonstrate ineffective assistance of counsel
because the record demonstrated that appellant received effective assistance of
counsel under the prevailing professional norms at the time of the plea, and
appellant failed to show an actual conflict of interest because appellant’s co-
defendant pled guilty prior to appellant’s agreement to plead guilty.

                                     ANALYSIS

      In four issues appellant contends the trial court abused its discretion when it
denied her application for writ of habeas corpus because (1) trial counsel had an
                                          3
actual conflict of interest; (2) trial counsel affirmatively misadvised appellant of
the immigration consequences of her guilty plea; (3) the Supreme Court’s decision
in Chaidez does not apply because appellant’s completion of deferred adjudication
probation is not a conviction; and (4) appellant’s writ should be considered an
“initial” writ maintaining the trial court’s authority to review appellant’s
application.

      Standard of Review

      Texas Code of Criminal Procedure article 11.072 establishes the procedure
for an applicant to seek habeas corpus relief “from an order or a judgment of
conviction ordering community supervision.” Tex. Code Crim. Proc. Ann. art.
11.072, § 1 (West 2015). Under article 11.072, we have jurisdiction to consider
appeals of denials of habeas corpus relief from such orders or judgment. Id. art.
11.072, § 8. We review the trial court’s denial of habeas corpus relief under an
abuse-of-discretion standard, and consider the evidence in the light most favorable
to the habeas court’s ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.
App. 2006).

      An applicant seeking habeas corpus relief based on an involuntary guilty
plea must prove her claim by a preponderance of the evidence. Kniatt v. State, 206
S.W.3d 657, 664 (Tex. Crim. App. 2006). In an article 11.072 habeas case, the trial
judge is the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim.
App. 2011). An appellate court reviews the evidence presented in the light most
favorable to the trial court’s ruling, regardless of whether the court’s findings are
implied or explicit, or based on affidavits or live testimony. See Ex parte Fassi,
388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      We afford almost complete deference to the habeas court’s determination of
historical facts supported by the record, especially when those factual findings rely
                                         4
upon an evaluation of credibility and demeanor. Ex parte Tarlton, 105 S.W.3d 295,
297 (Tex. App.—Houston [14th Dist.] 2003, no pet.). We apply the same
deference to review the habeas court’s application of law to fact questions, if the
resolution of those questions turns on an evaluation of credibility and demeanor;
we review de novo the habeas court’s application of the law to fact questions if
resolution of those questions turns on an application of legal standards. Id.

       Appellant based her habeas corpus application on an alleged denial of
effective assistance of counsel, which she argued rendered her plea involuntary.
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
guilty 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) her trial counsel’s representation was deficient in that it fell below the standard
of prevailing professional norms and (2) there is a reasonable 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.

       Conflict of Interest

       In appellant’s first issue she contends the trial court abused its discretion in
denying her application for writ of habeas corpus because trial counsel proceeded
to advise appellant to enter a guilty plea despite dual representation that gave rise
to a conflict of interest.

                                           5
      To prevail on a conflict-of-interest ineffectiveness claim, appellant must
prove by a preponderance of the evidence that (1) trial counsel had an actual
conflict of interest, and (2) the conflict actually colored trial counsel’s actions
during her representation of appellant. Odelugo v. State, 443 S.W.3d 131, 136
(Tex. Crim. App. 2014). “An ‘actual conflict of interest’ exists if counsel is
required to make a choice between advancing his client’s interest in a fair trial or
advancing other interests to the detriment of his client’s interest.” Monreal v. State,
947 S.W.2d 559, 564 (Tex. Crim. App. 1997). In other words, appellant must show
that trial counsel actually acted on behalf of those other interests, and she was
adversely impacted as a result. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
Appellant’s claim will fail if (1) no evidence has been presented on the issue, or (2)
the evidence relevant to the issue is in perfect equipoise. Odelugo, 443 S.W.3d at
136–37.

      Even if we assume the existence of an actual conflict of interest, appellant
must still establish that she was adversely impacted by trial counsel’s conflict of
interest. Appellant’s argument rests on Pickett’s assertion that all the drugs with
which they were charged belonged to Pickett. The record reflects that Pickett was
charged with possession of between four and four hundred grams of
methamphetamine while appellant was charged with possession of less than one
gram of methamphetamine. In her affidavit appellant averred that she had a
defense to the possession charge, which was that Pickett possessed all of the drugs.
Appellant avers that she decided not to pursue the defense on advice of counsel.

      Appellant’s arguments do not address the second part of the test: whether
trial counsel acted on behalf of other interests to appellant’s detriment. Appellant
fails to demonstrate how counsel advising Pickett to plead guilty acted to
appellant’s detriment. Appellant’s plea of guilty did not aid Pickett as he pled

                                          6
guilty to a greater offense. In other words, Pickett did not benefit from appellant’s
plea of guilty. If appellant had gone to trial and been successful in the pursuit of
her defense that Pickett possessed all of the drugs, there is no evidence that Pickett
stood to benefit as he had already pled guilty to possession. We hold the trial court
did not abuse its discretion when it denied appellant’s application for writ of
habeas corpus based on an alleged actual conflict of interest. See Odelugo, 443
S.W.3d at 138. We overrule appellant’s first issue.

      Immigration Consequences

      In her second issue appellant contends that the holdings in Chaidez v. United
States, 133 S.Ct. at 1103, and Ex parte De Los Reyes, 392 S.W.3d at 675, do not
apply to this case because appellant was affirmatively misadvised as to the
consequences of her plea.

      The Supreme Court of the United States has stated that “when the
deportation consequence is truly clear, . . . the duty to give correct advice is equally
clear.” Padilla, 559 U.S. at 369. “To satisfy this responsibility, we . . . hold that
counsel must inform her client whether his plea carries a risk of deportation.” Id. at
374. Padilla does not apply retroactively to cases on collateral review. See
Chaidez, 133 S. Ct. at 1113; Ex parte De Los Reyes, 392 S.W.3d at 678–79. Thus,
defendants whose conviction became final prior to March 31, 2010 cannot benefit
from the holding in Padilla. Chaidez, 133 S. Ct. at 1113. In addition, the Court of
Criminal Appeals of Texas has held that, even though there is no conviction under
Texas law when a trial court dismisses a charge following successful completion of
deferred-adjudication community supervision after a guilty plea, for the purposes
of determining the application of Padilla, a guilty plea in this context is treated as a
conviction. See State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013).
Therefore, appellant cannot rely upon Padilla in attempting to establish ineffective

                                           7
assistance of counsel in connection with a 2001 guilty plea. See id.

      Appellant argues that these holdings do not apply to her guilty plea because
she “received affirmative misadvice” as to the immigration consequences of her
plea bargain. Appellant cites Ex parte Arjona, 402 S.W.3d 312 (Tex. App.—
Beaumont 2013, pet. ref’d) in support of her argument. In Arjona, the court
recognized that even when counsel has no initial duty to advise a defendant of the
immigration consequences of a guilty plea because of the non-retroactive effect of
Padilla, when counsel gives advice regarding the immigration consequences of the
plea, counsel becomes obligated to provide the defendant with accurate
information. Id. at 318.

      Presuming, without deciding, that this court would follow the “affirmative
misadvice” reasoning in Arjona, nothing in the habeas record indicates that
appellant received affirmative mis-advice as to the immigration consequences of
her plea. In her affidavit, appellant states, “My attorney, Cheryl Irvin, did not
inform me that the plea might result in immigration consequences including
deportation, or that deportation was certain. Pursuant to the advice of my attorney,
I decided to enter a plea agreement. My attorney never told me that I was certain to
be deported as a result of my plea or that the offense was grounds for certain
deportation or removal proceedings.” Irvin’s affidavit stated she advised appellant
“that any plea in this matter may have deportation consequences but that I could
not advise her what they would be.” Even if the trial court accepted appellant’s
affidavit as true, there is no evidence that appellant received affirmative mis-advice
about the immigration consequences of her 2001 plea bargain. We overrule
appellant’s second issue.

      In her third issue appellant argues that the decision in Chaidez does not
affect her as a Legal Permanent Resident because she was given deferred

                                          8
adjudication and successfully completed community supervision. The rule
announced in Padilla does not apply retroactively to the collateral review of a state
criminal conviction that was final when Padilla issued. See Ex parte De Los Reyes,
392 S.W.3d at 679. Because appellant was placed on deferred-adjudication
community supervision and successfully completed that community supervision,
she does not have a final conviction under State law. See Tex. Code Crim. Proc.
Ann. art. 42.12 § 5(c). Therefore, appellant argues, the rule in Padilla can be
applied to her.

      As noted above, the Court of Criminal Appeals has rejected appellant’s
argument. See Guerrero, 400 S.W.3d at 588. In Guerrero, the high court
recognized that Congress is not required to recognize the concept that many states
do not consider deferred adjudication a conviction. Id. In fact, Congress has
explicitly rejected such a contention in the context of immigration law. Id. For the
purposes of determining the application of Padilla, appellant’s 2001 guilty plea is
treated as a conviction. See id.

      Appellant argues that the holding in Guerrero should not apply to her
because Guerrero was an undocumented alien and she is a legal permanent
resident. We disagree. In discussing whether Congress treats the successful
completion of deferred-adjudication community supervision as a final conviction
the court in Guerrero did not purport to create a different rule dependent on the
noncitizen’s classification. See id. Appellant’s successful completion of deferred-
adjudication community supervision, following a guilty plea, while not a final
conviction under Texas law, is treated as a final conviction for purposes of
determining the applicability of Padilla and the conviction is deemed to have
occurred October 5, 2001; appellant’s arguments to the contrary lack merit. See id.

      Appellant further argues that this court should not follow the Court’s holding

                                         9
in Chaidez because the Supreme Court improperly applied Teague v. Lane, 489
US. 288 (1989), in its analysis as to whether Padilla announced a “new rule.” The
Texas Court of Criminal Appeals has held that the rule announced in Padilla does
not apply retroactively under the Texas habeas-corpus law. Ex parte De Los Reyes,
392 S.W.3d at 678–79. We are bound by that precedent. See Mason v. State, 416
S.W.3d 720, 728 n. 10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“When
the Court of Criminal Appeals has deliberately and unequivocally interpreted the
law in a criminal matter, we must adhere to its interpretation under the dictates of
vertical stare decisis.”).

       Appellant further argues that “[t]he ‘new rule vs. old rule’ threshold question
of Teague is not applicable to an ineffective assistance of counsel claim that is the
functional equivalent of a direct appeal pursuant to the clearly established
precedent in Martinez v. Ryan and Trevino v. Thaler.” In Martinez v. Ryan, — U.S.
—, 132 S.Ct. 1309, 1318 (2012) and Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911,
1915 (2013), the Supreme Court held that if a prisoner cannot effectively raise
ineffective assistance of counsel in a state direct appeal, a federal court will not be
procedurally barred from considering the prisoner’s ineffective-assistance-of-
counsel claim in a subsequent collateral proceeding. The holdings in those cases do
not apply in this situation because appellant was permitted to raise ineffective
assistance in this habeas proceeding, and is not attempting to file a federal writ of
habeas corpus. We overrule appellant’s third issue.

       In appellant’s fourth issue, she argues that this application for writ of habeas
corpus should be treated as an “initial” writ because her first application was
dismissed without a hearing.

       Article 11.072 section 9(a) of the Texas Code of Criminal Procedure
provides:

                                          10
      Sec. 9. (a) If a subsequent application for a writ of habeas corpus is
      filed after final disposition of an initial application under this article, a
      court may not consider the merits of or grant relief based on the
      subsequent application unless the application contains sufficient
      specific facts establishing that the current claims and issues have not
      been and could not have been presented previously in an original
      application or in a previously considered application filed under this
      article because the factual or legal basis for the claim was unavailable
      on the date the applicant filed the previous application.

Tex. Code Crim. Proc. Ann. art. 11.072 § 9(a).

      The record reflects that the trial court did not treat appellant’s application as
a “subsequent writ” under the statute. Therefore, because no error is presented, we
overrule appellant’s fourth issue.

      Having overruled each of appellant’s issues, we affirm the trial court’s order
denying appellant’s application for writ of habeas corpus.




                                        /s/     John Donovan
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                           11
