Opinion filed August 31, 2011




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-11-00029-CR
                                         __________

                            RICARDO SALAZAR, Appellant

                                                V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 358th District Court
                                    Ector County, Texas
                              Trial Court Cause No. D-36,824


                                          OPINION

       Ricardo Salazar appeals from the denial by the trial court of his postconviction writ of
habeas corpus. At his trial, Salazar, upon his plea of guilty, was convicted by the trial court of
the offense of theft of property valued at $1,500 or more but less than $20,000. Pursuant to a
plea bargain, the trial court assessed Salazar’s punishment at two years deferred adjudication, a
fine of $500, payment of $1,800 restitution to the victim, payment of a crime stoppers fee of $50,
and court costs of $240. In a single issue, Salazar contends that, based on the habeas record and
applicable law, the habeas court erred in failing to grant his postconviction writ, failing to allow
him to withdraw his plea of guilty, and failing to vacate the deferred adjudication/community
supervision order. We agree. We reverse the order denying the writ, vacate the Orders of
Deferred Adjudication and Placement on Community Supervision, and remand this cause to the
trial court for further proceedings consistent with this opinion. See Ex parte Covey, No. PD-
0145-09, 2010 WL 1253224 (Tex. Crim. App. Mar. 31, 2010).
       An applicant seeking habeas corpus relief based on an involuntary guilty plea must prove
his claim by a preponderance of the evidence. Ex parte Tanklevskaya, No. 01-10-00627-CR,
2011 WL 2132722, at *3 (Tex. App.—Houston [1st Dist.] May 26, 2011, pet. filed). When
reviewing a trial court’s ruling on a habeas corpus application, we view the evidence presented in
the light most favorable to the trial court’s ruling, and we must uphold that ruling absent an
abuse of discretion. Id. We afford almost total deference to a trial court’s findings in habeas
proceedings, 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); Tanklevskaya,
2011 WL 2132722, at *3. We similarly defer to the trial court’s application of the law to the
facts if that resolution turns upon credibility and demeanor determinations. Ex parte Peterson,
117 S.W.3d 804, 819 (Tex. Crim. App. 2003); Tanklevskaya, 2011 WL 2132722, at *3. If the
resolution of the ultimate question turns on an application of law, we review the determination de
novo. Peterson, 117 S.W.3d at 819; Tanklevskaya, 2011 WL 2132722, at *3.
       On October 30, 2009, Salazar and a friend were at an Odessa shopping mall when his
friend decided to remove the tailgate from a pickup his friend said was driven by his ex-
girlfriend. In what would have been an affidavit had Salazar been able to have it notarized,
Salazar indicated that he thought that the taking of the tailgate was a joke or prank and that his
friend would give it back. He said his friend came to his house later and talked him into keeping
the tailgate at his house until the next afternoon when he would return for it. Salazar related that
his friend never returned.
       At his plea hearing on the charge of theft, Salazar stated that his attorney had warned him
that, as a permanent resident, there was a likelihood that he might very well be deported and a
possibility that the immigration service would cause him to be removed from the United States
because he is a permanent resident and because of the nature of the offense. Salazar’s attorney
admonished him about his immigration status, telling him, “And you understand we are not
telling you you will be deported, we are not telling you you won’t be deported, but there is a
possibility that this plea will affect your residence in the United States.” Salazar indicated to the
court that, knowing that, he still wanted to plead guilty. Salazar testified that he understood the
written plea admonishments he had received. The written admonishments included a warning
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that, if Salazar was not a citizen of the United States, a plea of guilty might result in his
deportation.
       It is undisputed that Salazar’s deportation was certain because of his plea of guilty at a
time when he had not been a legal resident of the United States for at least five years. We are to
determine his claim based upon Strickland v. Washington, 466 U.S. 668 (1984). Padilla v.
Kentucky, 130 S.Ct. 1473, 1482 (2010). Under Strickland, we first determine whether counsel’s
representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 608.
When the deportation consequence is clear, as it is in this case, the duty to give correct advice is
equally clear. Padilla, 130 S.Ct. at 1483. Inasmuch as counsel did not give Salazar correct
advice, we hold that Salazar has satisfied the first prong of Strickland. See Ex parte Romero,
No. 04-11-00175-CR, 2011 WL 3328821, at *2 (Tex. App.—San Antonio Aug. 3, 2011, no
pet. h.); Tanklevskaya, 2011 WL 2132722, at *7-8.
       To establish prejudice in the context of an involuntary guilty plea resulting from the
ineffective assistance of counsel, the applicant must demonstrate that there is a reasonable
probability that, but for his counsel’s deficient representation, he would not have pleaded guilty
but would have instead insisted on going to trial. See Strickland, 466 U.S. at 698. In this type
of claim, Salazar must establish that a decision to reject the plea bargain would have been
rational under the circumstances. Padilla, 130 S.Ct. at 1485. The offense for which Salazar has
been convicted carried a penalty of 180 days to two years in a state jail facility and a fine of up to
$10,000. As a young high school student without a prior criminal record, Salazar would have
been a good candidate for deferred adjudication if convicted at trial. His mother and younger
siblings live in the United States. Although he had only enjoyed legal resident status for a short
time, Salazar had been reared in the United States.
       As noted by the court in Padilla, preserving the client’s right to remain in the United
States may be more important to the client than any potential jail sentence. Id. at 1483. Salazar
indicated that, had he known he was definitely going to be deported, he would have fought the
criminal case. We hold that Salazar established that he was prejudiced because he would have
gone to trial given the correct information about his deportation status and because a decision to
reject the plea bargain in favor of a trial would have been rational under the circumstances.
Consequently, we hold that Salazar satisfied the second prong of Strickland. See Romero, 2011
WL 3328821, at *3; Tanklevskaya, 2011 WL 2132722, at *9-11.

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       The State asserts that Salazar failed to establish either prong of the Strickland standard.
Noting that Salazar’s trial attorney did not appear as a witness, nor was his affidavit presented at
the habeas hearing, the State argues that there is nothing in the record to show that the attorney
knew that Salazar had less than five years of legal resident status and, with that
misunderstanding, that his advice at the time of the guilty plea would have been constitutionally
sufficient. This argument is not persuasive because the counsel’s duty to give correct legal
advice where the consequences of a guilty plea with respect to deportation are clear carries with
it the obligation to investigate what the deportation consequences to the client would be given
the client’s individual circumstances.
       The trial court found that Salazar’s trial counsel advised him at the plea hearing that there
was a likelihood that he might very well be deported; that Padilla did not apply because counsel
in Padilla told his client not to worry about immigration status, whereas Salazar’s attorney did
not make an inaccurate representation; and that Salazar’s argument that his attorney’s
performance was deficient is unpersuasive since it was made clear to Salazar that there was a
likelihood that he might well be deported.
       While not specifically making a finding to that effect, the trial court inferentially found
that Salazar failed to establish the first prong of Strickland because his counsel told him that
there was a likelihood he would be deported. The trial court characterized that the attorney did
not make an inaccurate representation. As we have previously noted, Salazar’s trial counsel also
admonished him that there was a possibility that he would be deported. In any event, the correct
advice, which was that the plea of guilty would result in certain deportation, was not given. Both
the terms “likelihood” and “possibility” leave open the hope that deportation might not occur.
Consequently, these admonishments were inaccurate and did not convey to Salazar the certainty
that the guilty plea would lead to his deportation.
       The State speculates by suggesting that the change of admonishment from “likelihood” or
“possibility” of deportation to “certain” deportation would not have significantly affected
Salazar’s decision. As we have previously noted, however, Salazar presented evidence that, had
he known it was certain he would be deported, he would have fought the criminal case, thinking
that he could win.
       The trial court found that Salazar’s only chance to avoid deportation proceedings would
be an acquittal at trial, where he would be exposed to a harsher sentence than deferred
adjudication. The trial court also found that a trial could entail a significant risk and might
                                                  4
confer no realistic advantage to him. The court concluded that Salazar had not established
“prejudice that a rational defendant in his shoes would have gone to trial rather than choosing to
plead guilty.” We assume that the trial court was finding that a decision to reject the plea
bargain would not have been rational under the circumstances.
       Salazar was eighteen at the time of trial and had no criminal record. He was a student at
Odessa High School. It would appear that, if convicted at trial, Salazar would have a great deal
of community support in seeking deferred adjudication or community supervision. Although a
citizen of Mexico, he has been reared in the United States. His mother and siblings live in the
United States. He believes he is not guilty because he thought the taking of the tailgate was a
prank and that his friend intended to return it. By declining the guilty plea and going to trial, he
risks no more than two years state jail time and a fine of up to $10,000. He will be deported if
convicted, whether it is by a plea of guilty or a full trial. If acquitted at trial, Salazar would not
be deported and, therefore, could graduate from high school in the United States and stay with
his family. We hold that the trial court abused its discretion in holding that a decision to reject a
plea bargain under these circumstances would not be a rational decision. It would be perfectly
rational to take the chance on acquittal at the risk of a maximum of two years state jail time and a
fine of $10,000 rather than enter into a guilty plea that would result in certain deportation,
separating him from his family and the opportunities that come from being a legal resident of the
United States. We sustain Salazar’s sole issue on appeal.
       We reverse the trial court’s order denying the writ, vacate the Orders of Deferred
Adjudication and Placement on Community Supervision, and remand this cause to the trial court
for further proceedings so that Salazar may answer the indictment.




                                                                                JOHN G. HILL
                                                                                JUSTICE
August 31, 2011
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1


       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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