                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §
                                                                   No. 08-11-00180-CR
                                                  §
                                                                      Appeal from the
                                                  §
 EX PARTE: MANUEL CISNEROS                                          168th District Court
                                                  §
                                                                 of El Paso County, Texas
                                                  §
                                                                (TC# 20040D05971-168-1)
                                                   §

                                           OPINION

       The State of Texas appeals a grant of habeas corpus to Manuel Cisneros contending in two

issues that: (1) the rule in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284

(2010) was a new rule and therefore not to be applied retroactively; and (2) that the trial court

abused its discretion in granting Cisneros’ post-conviction habeas relief where Cisneros failed to

show a reasonable probability that, but for his counsel’s actions, he would have rejected a guilty

plea and insisted on going to trial, and failed to prove ineffective assistance of counsel, pursuant to

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons

set out below, we reverse.

                                     FACTUAL SUMMARY

       On October 17, 2004, Officer Noe Juarez of the Socorro Police Department went to the
Fiesta Bar to assist with an investigation by the Texas Alcoholic Beverage Commission. When

Officer Juarez entered the bar, Cisneros, while keeping an eye on the officer, whistled and rushed

to the end of the counter where several customers were seated, then grabbed an ashtray and rushed

toward the middle of the bar. As Officer Juarez moved towards Cisneros and attempted to go

behind the counter, the customers who had been sitting at the end of the counter blocked the

entrance to prevent Officer Juarez from stopping Cisneros. Cisneros dumped the ashtray’s

contents into a bowl containing water and added more water. When Officer Juarez broke through

the barricade and approached Cisneros, he saw a white powdery substance dissolving in the bowl

of water. When Officer Juarez attempted to pour the water out of the bowl and preserve the white

powdery substance, Cisneros grabbed the side of the bowl to prevent Officer Juarez from doing so.

Officer Juarez took Cisneros into custody at that point but was unable to preserve any of the

substance.

       Officer Juarez conducted a search incident to arrest and found a small baggie containing a

white powdery substance in the right front coin pocket of Cisneros’ jeans. A field-test was

conducted on the substance, which tested positive for cocaine. Officer Cisneros was instructed to

submit the case as a non-arrest as his assistance was needed at a traffic accident with fatality. In

the supplemental offense report, Cisneros was accused of committing the offenses of tampering

with physical evidence and possession of cocaine.

       Cisneros was indicted for the state-jail felony offense of possession of cocaine in an

amount of less than one gram, while the evidence tampering charge was declined for prosecution.

Pursuant to a plea agreement with the State, which included an agreement to prosecute the offense

as a class-A misdemeanor pursuant to TEX.PENAL CODE ANN. § 12.44(b)(West 2011), Cisneros


                                                 2
pled guilty to the offense as charged in the indictment, and the trial court assessed punishment at

nine months’ confinement, probated for eighteen months, placing him on community supervision,

and a $500 fine. Cisneros did not appeal the trial court’s order placing him on community

supervision.

       At the hearing on the guilty plea, Cisneros acknowledged that he signed the plea papers and

further acknowledged that he understood to what offense he was pleading guilty. The Court

asked Cisneros the following:

       Court: Are you a citizen of the United States?
       Cisneros: No, sir.
       Court: Do you understand that a plea here today could subject you to deportation,
       exclusion from admission, denial of naturalization under federal law, sir?
       Cisneros: Yes, Sir.

Cisneros also signed an acknowledgement that by pleading guilty to the offence that he may be

deported, excluded from future admission to the United States, or denied naturalization.

       On April 6, 2010, a Notice to Appear was issued to Cisneros by the Department of

Homeland Security, advising that removal proceedings had been commenced against him.

According to the Notice, Cisneros entered the United States on or about January 1, 2009 as a

nonimmigrant visitor with authorization to remain in the United States for a temporary period not

to exceed 30 days; that Cisneros remained in the United States beyond those 30 days without

authorization; and that Cisneros was convicted in 2005 for the offense of Possession of a

Controlled Substance. The Department of Homeland Security charged that Cisneros was subject

to removal pursuant to: (1) Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, in

that Cisneros was convicted of a violation of a State law relating to a controlled substance; and (2)

Section 237(a)(1)(B) of the Immigration and Nationality Act, in that after admission as a


                                                 3
nonimmigrant, Cisneros remained in the United States for a time period longer than permitted

under the Immigration and Nationality Act.

           Cisneros filed an application for writ of habeas corpus under Article 11.072 of the Code of

Criminal Procedure on December 15, 2010. The trial court held an evidentiary hearing on

March 3, 2011, and another hearing on April 28, 2011, where the court heard further argument.

At the March 3 hearing, Cisneros1 presented an affidavit stating, in relevant part:

                   My wife is a United States citizen. I am eligible to adjust my status to a
           lawful permanent resident through my wife. I told both Travis Ketner and Manual
           Barraza [Cisneros’ attorneys]2 that I was not a citizen, that I lawfully entered the
           United States on a visitor visa. Neither Mr. Ketner nor Mr. Barraza told me that I
           would lose my chance to become a lawful permanent resident if I pled guilty.
           Neither lawyer told me that I would be detained in jail by immigration if I pled
           guilty. Neither told me that I would be deported for life if I pled guilty. If I had
           known about the immigration consequences, I would have fought my case or asked
           my attorneys to allow me to plead to a crime that would not make me deportable for
           life. My 3 children are citizens of the United States. My wife and children live in
           the United States. I need to be with my wife and children and do my duties as a
           husband and father.

           In his affidavit, Cisneros challenged the facts presented in the plea hearing, stating, in part,

that the police “said they found a one dollar bill with drug residue, but I know nothing about that.”

At the hearing, Cisneros presented testimony from his family members, neighbors, and

acquaintances, who testified about Cisneros’ relationship with his family and about his character

in general.

           Cisneros’ wife testified on cross-examination that she believed Cisneros would have

wanted to avoid going to jail and that the desire to avoid jail time would have been a reason for him

to plead guilty in exchange for probation. She also testified that Cisneros’ laser visa had expired

1
    Cisneros was not present, being held at an immigration detention center at the time of the hearing.
2
  At the April 28, 2011 hearing, the trial court announced that it was going to find Mr. Ketner and Mr. Barraza
“unavailable” to Cisneros. See Findings of Fact # 18.
                                                            4
and Cisneros had not obtained a renewal. She was present at some, but not all, of the meetings

Cisneros had with his attorneys and was not sure what may have been discussed. She and

Cisneros did not discuss adjusting his immigration status until she became a citizen in 2007.

           Following the March 3 hearing, the trial court entertained additional argument on several

issues via email. 3         Among the arguments and documents received was the “Applicant’s

Memorandum on Immigration Consequences of Plea to Texas Penal Code Sec. 37.09.” In the

Memorandum, Cisneros argued that if he had been convicted of the evidence tampering charge, a

third-degree felony instead of the State jail felony of possession of cocaine, he would have been

likely convicted of a crime that involves “moral turpitude” and subject to deportation but would

have also been eligible for a waiver relating to his immigration status, and supplemented the

Memorandum to argue this in support of his prejudice argument. On April 28 a second hearing

was held, which focused on the additional arguments requested by the court. The trial court

granted the writ of habeas corpus on May 3, 2011, and issued findings of fact and conclusions of

law on October 14, 2011. The State timely appealed.

                                               HABEAS RELIEF

           The State contends that: (1) the rule in Padilla was a new rule and therefore not to be

applied retroactively; and (2) that the trial court abused its discretion in granting Cisneros’

post-conviction habeas relief where Cisneros failed to show a reasonable probability that, but for

his counsel’s actions, he would have rejected a guilty plea and insisted on going to trial, and failed

to prove ineffective assistance of counsel, pursuant to Strickland.

                                               Standard of Review

           We apply an abuse of discretion standard when reviewing a trial court’s decision to grant or
3
    These emails, compromising some five hundred-plus pages of material, were included in the clerk’s record.
                                                          5
deny habeas relief. Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App. 2006); Washington

v. State, 326 S.W.3d 701, 704 (Tex.App.--Houston [1st Dist.] 2010, no pet.); Ex parte De Los

Reyes, 350 S.W.3d 723, 728 (Tex.App.--El Paso 2011, pet. granted), rev’d, -- S.W.3d --, 2013 WL

1136517 (Tex.Crim.App. March 20, 2013). We view the facts in the light most favorable to the

trial court’s ruling and defer to the trial court’s implied factual findings that are supported by the

record. Ex parte Wheeler, 203 S.W.3d at 325-26; Washington, 326 S.W.3d at 704. See also Ex

parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003)(per curiam)(holding that reviewing

courts afford almost total deference to the court’s determination of the historical facts supported by

the record, especially when those facts are based on an evaluation of credibility and demeanor, and

that if the trial court does not make explicit findings that the reviewing court will grant deference

to implicit findings that support the court’s ruling), overruled on other grounds by Ex parte Lewis,

219 S.W.3d 335 (Tex.Crim.App. 2007); Ex parte De Los Reyes, 350 S.W.3d at 728 (noting same).

To the extent the ultimate resolution of the application turns on an application of law, we review

the determination de novo. Ex parte Peterson, 117 S.W.3d at 819. We will reverse the trial

court’s ruling only if we conclude it is arbitrary, unreasonable, and made without reference to

guiding rules or principles.     Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.

1990)(op. on reh’g).

                                Ineffective Assistance of Counsel

       To be entitled to habeas relief on the basis of ineffective assistance of counsel, a petitioner

must prove by a preponderance of the evidence that: (1) counsel’s performance was deficient;

and (2) that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte De Los Reyes, 350 S.W.3d at 730. To establish


                                                  6
deficient performance, the petitioner must show that counsel’s performance “fell below an

objective standard of reasonableness” based on “prevailing professional norms.” Strickland, 466

U.S. at 688, 104 S.Ct. at 2064-65. Under the performance inquiry we consider all of the

circumstances, with a strong presumption that counsel’s conduct fell “within the wide range of

reasonable professional assistance . . . .” Id. at 689, 104 S.Ct. at 2065. To establish prejudice,

the petitioner must show that there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. Perez v. State, 310 S.W.3d

890, 893 (Tex.Crim.App. 2010). The defendant must show both components; failure to show

either deficient performance or prejudice will defeat the ineffectiveness claim.                       Id., citing

Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

        When the prejudice prong of Strickland is dispositive, we need only address that prong on

appeal. Seamster v. State, 344 S.W.3d 592, 594 (Tex.App.--Houston [14th Dist.] 2011, pet.

ref’d). “[I]t is not necessary to determine whether trial counsel’s representation was deficient if

appellant cannot satisfy the second Strickland prong.” My Thi Tieu v. State, 299 S.W.3d 216, 225

(Tex.App.--Houston [14th Dist.] 2009, pet. ref’d). “‘If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.’”4 Id., quoting Strickland, 466 U.S. at 697, 104 S.Ct. at 2052. We conduct a

Strickland prejudice review under a de novo standard, giving deference to any underlying

historical fact determinations by the habeas court. Johnson v. State, 169 S.W.3d 223, 239

(Tex.Crim.App. 2005), cert. denied, 546 U.S. 1181, 126 S.Ct. 1355, 164 L.Ed.2d 66 (2006).

        The second prong of Strickland requires the defendant to show that counsel’s errors were

4
  This is because the reviewing court’s purpose “is not to grade trial counsel’s performance.” My Thi Tieu, 299
S.W.3d at 225, citing Strickland, 466 U.S. at 697, 104 S.Ct. at 2052.

                                                         7
so serious that they deprived the defendant of a fair and reliable trial.5 Strickland, 466 U.S. at

687, 104 S.Ct. at 2064. In other words, an 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 Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. 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 v.

Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Premo v. Moore, ––– U.S.

––––, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011)(noting that to establish prejudice in the context

of a guilty plea, a challenger must establish the same “reasonable probability” standard set out in

Hill); Johnson, 169 S.W.3d at 231. A “reasonable probability” is a standard of proof “somewhat

lower” than a preponderance of the evidence. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

         Strickland imposes a “high bar” that “must be applied with scrupulous care, lest intrusive

post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant

to serve.” Premo, 131 S.Ct. at 739-40 (internal quotation marks omitted).6 As the Supreme Court


5
   Deprivation of a fair 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.

6
  In an email to counsel for Cisneros and the State, the trial court expressed skepticism that Premo applied to a Padilla
matter, stating “comparing a plea-before-something-else-is-filed as a trial strategy to get someone off, is apples and
oranges to an immigration safe trial strategy where time-punishment is not an issue.” We acknowledge that this is a
developing area, however other courts throughout the country have applied Premo to a Strickland analysis,
particularly when tied to a Padilla challenge, and we will do the same. See Stiger v. Commonwealth of Kentucky, 381
S.W.3d 230, 237 (Ky 2012)(applying Premo to Padilla challenge relating to guilty plea); Campos v. State, 816
N.W.2d 480, 507 (Minn. 2012)(same); Commonwealth v. Clarke, 949 N.E.2d 892, 905-6 (Mass. 2011)(same);
Denisyuk v. State, 30 A.3d 914, 919 (Md 2011)(same); State v. Gonzalez, 807 N.W.2d 759, 767 (Neb. 2012)(same);
see also United States v. Orocio, 645 F.3d 630, 648-49 (3rd Cir. 2011)(discussing Premo in dissent in discussion of
                                                            8
noted in Premo, there is a heavy burden on an appellant:

                Hindsight and second guesses are also inappropriate, and often more so,
        where a plea has been entered without a full trial . . . . There is a most substantial
        burden on the claimant to show ineffective assistance. The plea process brings to
        the criminal justice system a stability and a certainty that must not be undermined
        by the prospect of collateral challenges in cases not only where witnesses and
        evidence have disappeared, but also in cases where witnesses and evidence were
        not presented in the first place.

Id. at 745-46.

        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). Just as importantly, a challenger must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances. See Ex parte Fassi, 388 S.W.3d 881,

887 (Tex.App.--Houston [14th Dist.] 2012, no pet. h.), citing Padilla, 130 S.Ct. at 1485. “The

test is objective; it turns on what a reasonable person in the defendant’s shoes would do.” Fassi,

388 S.W.3d at 887, citing United States v. Smith, 844 F.2d 203, 209 (5th Cir.1988)(per curiam).

        We must determine whether an appellant proved there is a reasonable probability that but

for counsel’s errors, he would not have pled guilty, which requires proof that a decision to reject

the plea bargain was rational under the circumstances. Fassi, 388 S.W.3d at 887, citing Ex parte

Harrington, 310 S.W.3d 452, 458 (Tex.Crim.App. 2010); Padilla, 130 S.Ct. at 1485. We make

the prejudice inquiry on a “case-by-case basis, considering the circumstances surrounding the plea

and the gravity of the alleged failure.” Id. We note that the habeas court was free to disbelieve

an appellant’s self-serving testimony that he would not have pled guilty if he had been aware of the



prejudice under Padilla).
                                                  9
immigration consequences of his plea. 7                 See Ex parte Moreno, 382 S.W.3d 523, 528-29

(Tex.App.--Fort Worth 2012, pet. ref’d); Ex parte Ali, 368 S.W.3d 827, 840-41 (Tex.App.--Austin

2012, pet. ref’d).

                                                     Prejudice?

         Cisneros was charged with a single count of possession of cocaine and entered into a

negotiated plea agreement where Cisneros agreed to plead guilty to a misdemeanor offense under

Texas Penal Code § 12.44(b). The trial court assessed punishment at nine months’ confinement,

probated for eighteen months, placing him on community supervision, and a $500 fine. 8 The

federal government had the right to commence deportation proceedings against Cisneros based on

his guilty plea to a charge of possession of cocaine. See 8 U.S.C.A. § 1227(a)(2)(B)(i)(West

2008). Cisneros argues that the ineffectiveness of his counsel rendered his guilty plea involuntary

under Padilla, but acknowledges that the Strickland analysis applies to guilty pleas. Cisneros

asserts that Padilla moved away from a “trial-outcome” approach regarding prejudice, noting that

Padilla cited to neither Strickland nor Hill in its “rational under the circumstances” analysis.9

         Cisneros argues that the affidavit he provided shows that he suffered prejudice because:

(a) it would have been rational to reject the plea bargain and take the case to trial; or (b) it would


7
  It is irrelevant that an appellant actually became the subject of deportation proceedings as a result of his plea. See
Aguilar v. State, 375 S.W.3d 518, 526 n.8 (Tex.App.--Houston [14th Dist.] 2012, no pet.)(ongoing deportation
proceedings not necessary to assert Padilla claim); cf. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (adequacy of
representation should not be evaluated with “the distorting effects of hindsight”).
8
  If the case had been prosecuted as a state jail felony, Cisneros faced a possible jail sentence of 180 days up to two
years. TEX.PENAL CODE ANN. § 12.35(a)(West Supp. 2012). If Cisneros had been prosecuted for evidence
tampering, a third-degree felony, he faced a potential punishment of imprisonment from two to ten years. TEX.PENAL
CODE ANN. § 12.34(a)(West 2011).
9
  The Supreme Court cited Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S.Ct. 1029,1036, 1039, 145 L.Ed.2d
985 (U.S. 2000), which drew extensively from Strickland and Hill in its analysis. As Roe notes, the application of
Strickland and whether the defendant made the requisite showing depends on the facts of a particular case. Roe, 528
U.S. at 485, 120 S.Ct. at 1039.
                                                          10
have been rational to reject the plea bargain and attempt to secure an alternative, immigration-safe

disposition plea. Certainly Padilla recognized that an alien defendant might rationally be more

concerned with removal than with a term of imprisonment, see Padilla, 130 S.Ct. at 1483

(recognizing that “‘[p]reserving a client’s right to remain in the United States may be more

important to the client than any potential jail sentence’”)(citation omitted), a position noted in the

Third Circuit’s decision in United States v. Orocio, 645 F.3d 630, 643-44 (3rd Cir. 2011), which

Cisneros directs this Court in support of his argument. As the Oroico court noted:

       For the alien defendant most concerned with remaining in the United States,
       especially a legal permanent resident, it is not at all unreasonable to go to trial and
       risk a ten-year sentence and guaranteed removal, but with the chance of acquittal
       and the right to remain in the United States, instead of pleading guilty to an offense
       that, while not an aggravated felony, carries ‘presumptively mandatory’ removal
       consequences.

Orocio, 645 F.3d at 645.

       The facts presented at the habeas hearing belie Cisneros’ comparison of Orioco to the

instant case. The record in Orocio was slender, and the only source of facts, apart from the

official record of the underlying criminal record, was the affidavit of the defendant. No further

evidence was submitted and no evidentiary hearing was conducted. Id. at 634 n2. While

Cisneros’ affidavit asserts that immigration consequences were a concern, testimony given by his

wife while on cross-examination indicate that there was no discussion of potential changes in

immigration status until two years after the guilty plea was entered.              We find Orioco

distinguishable on these facts.

       Cisneros’ immigration concerns are closer to those of the appellant in Moreno, where

“appellant’s apparent total inaction upon receiving repeated verbal and written warnings about the

possibility of his deportation . . .,” supported the trial court’s finding that the appellant’s

                                                 11
immigration status was not his primary concern. Ex parte Moreno, 382 S.W.3d at 529. 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.”). Here,

Cisneros’ wife testified that she believed Cisneros would have wanted to avoid going to jail and

that the desire to avoid jail time would have been a reason for him to plead guilty in exchange for

probation. Cisneros’ affidavit does not indicate that he asked either of his counsel about possible

immigration consequences, stating that while he told them of his immigration status, they never

advised him of the consequences.

         As in Moreno, there was no evidence presented that the State was willing to accept a plea

bargain for anything other than a controlled substance charge. Ex parte Moreno, 382 S.W.2d at

529. Cisneros argues that an immigration-safe disposition would have been possible and the

failure to seek such compounded the prejudice in this case. In the findings of fact, the trial court

accepted this position: “The Court finds that Mr. Cisneros could have been, but wasn’t, charged

with the criminal offense upon which was the basis for the search.” Assuming that Cisneros had

been charged with evidence tampering, this might have led to an immigration consequence where

Cisneros may have been eligible for discretionary relief, as he contends in his Memorandum.10

Had that been the case, Cisneros would have been facing a possible two to ten year jail sentence for

10
   If this were truly the case, then Cisneros’ deportation consequence is not clear, a situation noted by our sister court
in Ex Parte Rodriguez, 378 S.W.3d 486, 493 (Tex.App.--San Antonio 2012, no pet.)(noting that “[b]ecause the final
result of the defendant’s plea depends on relief that may or may not be granted, the defendant’s eligibility for
cancellation of removal makes the deportation consequence unclear or uncertain” under Padilla). In a circumstance
where a deportation consequence is unclear, a trial court’s warning that a charge contains a risk of immigration
consequences precludes constitutional prejudice from plea counsel’s failure to give the required warning. Ex parte
Rodriguez, 378 S.W.3d at 496-97.
                                                           12
the third degree felony of evidence tampering. In Moreno, a disparity of sentences (pleading to

possession    of    cocaine     rather    than      facing   a   possible      life   sentence   for

possession-with-intent-to-deliver) was such that:

       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.

Moreno, 382 S.W.3d at 529 (citation omitted).

       Here, the trial court concluded that Cisneros would have rejected the plea offer and taken

the case to trial had he known of the immigration consequences. This conclusion cuts against the

reasonability of accepting the plea as noted in Moreno.

       Another consideration in the prejudice analysis is the underlying facts of the offense and

whether it would have been rational for Cisneros to take the matter to trial. The trial court, in its

findings of fact, accepted the statements made by Cisneros in his affidavit:

       The Court finds that the underlying allegations of whether Mr. Cisneros actually
       possessed cocaine are in dispute. The State submitted a proffer at the plea hearing
       that police officers would testify that a small amount of cocaine was found on Mr.
       Cisneros incidental to an arrest in which Mr. Cisneros interfered with an
       investigation being conducted by the Texas Alcoholic Beverage Commission.
       Mr. Cisneros acknowledges that he was searched but denies possession of the
       cocaine, stating that ‘they said that they found a one dollar bill with drug residue,
       but I know nothing about that.’

       However, Cisneros does not raise any viable defensive theories apart from this statement,

which is challenged by the evidence attached to the State’s response to the writ in the form of the

police report filed by Officer Juarez, which indicates that Cisneros was searched almost

immediately after being taken into custody. While a motion to suppress evidence was filed in the



                                                 13
underlying criminal case, the record does not reflect that the trial court ruled on that motion.11

There is no clear factual defense presented by Cisneros to the underlying charge. Compare

Salazar v. State, 361 S.W.3d 99, 103 (Tex.App.--Eastland 2011, no pet.)(reversing denial of writ

of habeas corpus and finding that applicant could have rationally rejected plea deal where trial risk

was greater than plea, but applicant had viable factual defense to underlying charge).

        We do not hold that the evidence is per se insufficient to show prejudice. We conclude

that based on the record, the trial court lacked a reasonable basis to conclude that Cisneros proved

by a preponderance of the evidence that he was prejudiced by and would not have pled guilty but

for his trial counsel’s allegedly deficient conduct. Viewing the evidence in the light most

favorable to the trial court’s ruling, we find that the trial court abused its discretion by determining

that Cisneros met his burden to show prejudice. Having determined that the habeas court abused

its discretion with regard to the second prong of the Strickland analysis, we sustain Appellant’s

second issue.

                                   Retroactive Application of Padilla?

        As we have resolved this case on the State’s second issue, we did not engage in a

discussion of the retroactive application of Padilla. However, after this cause was submitted, the

United States Supreme Court issued an opinion regarding the retroactive application of Padilla.

In Chaidez v. United States, -- U.S. --, 133 S.Ct. 1103, 81 USLW 4112 (2013), the Court held that

Padilla did not apply retroactively to a defendant whose conviction became final before Padilla

was decided. Chaidez, 133 S.Ct. at 1107. The jurisprudence in this Court has previously held

11
   The evidence of the tampering with evidence was possibly admissible, either as extraneous-offense evidence, see
Bass v. State, 270 S.W.3d 557, 562 (Tex.Crim.App. 2008)(holding that extraneous-offense evidence is admissible to
rebut a defensive theory of fabrication or “frame-up”), or as same-transaction contextual evidence. TEX.R.EVID.
404(b); McDonald v. State, 148 S.W.3d 598, 602 (Tex.App.--Houston [14th Dist.] 2004), aff’d, 179 S.W.3d 571
(Tex.Crim.App. 2005).
                                                       14
that Padilla applied retroactively. See, e.g. Ex parte De Los Reyes, 350 S.W.3d at 729 (holding

Padilla applied retroactively and finding prejudice under Strickland). To the extent that Chaidez

clarifies the retroactivity of Padilla, we so acknowledge and hold that Padilla does not apply

retroactively to cases decided prior to the date of the Padilla decision, March 31, 2010.

                                         CONCLUSION

       Having sustained the State’s second issue, we reverse the order of the trial court and

reinstate Cisneros’ conviction.



March 28, 2013
                                             ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Antcliff, J., and Chew, C.J. (Senior)
(Antcliff, J., Not Participating)
Chew, C.J. (Senior)(Sitting by Assignment)

(Do Not Publish)




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