                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00426-CR


EX PARTE RANGIE SHAMA
BENJAMIN




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       FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Rangie Shama Benjamin appeals the trial court’s denial of his

post-conviction application for writ of habeas corpus. 2 We affirm.




      1
       See Tex. R. App. P. 47.4.
      2
        See Tex. Code Crim. Proc. Ann. art 11.09 (West 2005); Ex parte Bone, 25
S.W.3d 728, 730 (Tex. App.—Waco 2000, no pet.) (“We do not have original
jurisdiction over an 11.09 habeas corpus application; rather, we exercise
appellate jurisdiction over a trial court’s ruling on such an application.”).
                                Background Facts

      Appellant is a conditional resident of the United States and a native and

citizen of Dominica.    In September 2012, Appellant was charged with felony

aggravated assault family violence, which was later reduced to misdemeanor

assault family violence. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp.

2013) (stating that it is a misdemeanor to “intentionally, knowingly, or recklessly

cause[] bodily injury to another, including the person’s spouse”). On October 22,

2012, Appellant accepted a plea agreement, pleaded nolo contendere to the

misdemeanor charge, and waived his right to a jury trial. Appellant signed a form

that contained general statutory admonishments, including the admonishment

that warned him that “a plea of guilty or nolo contendere for the offense charged

may result in deportation, the exclusion of admission to this country, or denial of

naturalization under federal law.” The trial court sentenced Appellant to sixty

days’ confinement in the county jail. In January 2013, Appellant was ordered to

be removed from the United States to Dominica.                      See 8 U.S.C.A.

§ 1227(a)(2)(E)(i) (West 2005) (“Any alien who at any time after admission is

convicted of a crime of domestic violence . . . is deportable.”).

      In July 2013, Appellant filed an application for writ of habeas corpus,

seeking to set aside the plea agreement and vacate the judgment and arguing

that his court-appointed counsel failed to advise him that his acceptance of the

plea bargain would make him eligible for deportation and removal from the

United States.    He claimed that he would not have entered into the plea


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agreement had he known that he would be subject to expedited removal

proceedings by his plea and that his right to effective counsel was violated. See

U.S. Const. amend. VI.

      The State answered and attached the affidavit of Appellant’s trial counsel,

Michael “Mick” Meyer. Meyer stated that on October 22, 2012, he “went over all

ramifications concerning [Appellant’s] actions, specifically with regard to

immigration issues.” The trial court denied Appellant’s application on August 19,

2013, stating that it found “that the Affidavit of Mick Meyer is credible and that

Applicant’s claims are not credible.” Appellant filed a reply to the State’s answer

on August 30, 2013 and a “Motion for Reconsideration of the Court Order

Denying Petitioner Writ of Habeas Corpus” on September 3, 2013. Appellant

filed this appeal.

                              Standard of Review

      We generally review a trial court’s decision on an application for habeas

corpus under an abuse of discretion standard of review. See Ex parte Garcia,

353 S.W.3d 785, 787 (Tex. Crim. App. 2011).          An applicant seeking post-

conviction habeas corpus relief 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 consider the

evidence presented in the light most favorable to the habeas court’s ruling.

Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert denied, 549 U.S.

1052, (2006). This deferential review applies even when the trial court’s findings


                                        3
are implied rather than explicit and based on affidavits rather than live testimony.

Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006). 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).

                                   Discussion

      To establish ineffective assistance of counsel, Appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In

evaluating the effectiveness of counsel under the first prong, we look to the

totality of the representation and the particular circumstances of each case.

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

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct fell within a wide range of reasonable

representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial. Strickland, 466




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U.S. at 687, 104 S. Ct. at 2064. In other words, Appellant must show there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. The

applicant must show that “he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370

(1985). “[He] must convince the court that a decision to reject the plea bargain

would have been rational under the circumstances.” Padilla v. Kentucky, 559

U.S. 356, 372, 130 S. Ct. 1473, 1485 (2010).

      As to evidence supporting the second Strickland prong, all that was before

the trial court was Appellant’s and his trial counsel’s affidavits. In his affidavit,

Appellant stated,

             Had my attorney advised me that my plea agreement would
      [have] caused me to be deported, that information would have been
      relevant and essential to my decision whether or not to enter a plea
      of nolo contendere. I would not have considered that information a
      secondary or collateral consideration to my decision whether to enter
      the plea, but rather the essence of my decision.

            If I would have known that my admission of guilt along with the
      terms of the plea agreement would have caused removal
      proceedings, my decision[]making in regards to the charged
      information would have been substantially different.

Appellant did not testify to his innocence or to any evidence of a defense, nor did

he argue any circumstances that would have made rejecting the plea agreement

a rational choice. 3 See Ex parte Murillo, 389 S.W.3d 922, 931–32 (Tex. App.—


      3
      Even if we consider Appellant’s reply, filed after the trial court’s order
denying the petition, the only further statement that Appellant makes in the

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Houston [14th Dist.] 2013, no pet.) (“Aside from applicant’s own self-serving

statement that he would have insisted his counsel take his case to trial had he

known he would be deported, he presented no other evidence corroborating his

position that it would have been rational to reject a plea deal under the

circumstances.”).

      The police report stated that Appellant held a large barbeque fork near his

wife’s neck and threatened to kill her because she looked through his phone and

found text messages to another woman. He struck her in the mouth with his

knee. She then escaped to a nearby parking lot where she called the police.

Police officers saw Appellant’s wife’s “swollen upper lip.” The report also stated

that Appellant had a previous arrest for family violence. Appellant was originally

charged with a felony, but his charge was reduced to a Class A misdemeanor

over a month before the plea agreement. See Tex. Penal Code Ann. § 22.01(b).

It was Appellant’s burden to prove that he was prejudiced by his counsel’s

alleged deficient performance. In light of the evidence, the trial court could have

disbelieved Appellant’s statements and reasonably concluded that it would not

have been rational under the circumstances for Appellant to reject the plea

bargain and go to trial. See Ex parte Ali, 368 S.W.3d 827, 840–41 (Tex. App.—

Austin 2012, pet. ref’d) (noting that the trial court is not required to believe factual


attached affidavit is, “Had Mr. Meyer advised me about the immigration
consequences as a result of my plea, I would have gone to trial and not have
accepted the plea offer.”


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statements in an affidavit and that the appellate court must defer to the trial

court’s credibility determination).

      Appellant argues that the trial court erred by refusing to hold an evidentiary

hearing on Appellant’s petition. It was within the trial court’s discretion to hold a

hearing. See Tex. Code Crim. Proc. Ann. art. 11.09; Balderas v. State, No. 01-

06-00472-CR, 2007 WL 1299799, at *3 & n.7 (Tex. App.—Houston [1st Dist.]

May 3, 2007, no pet.) (mem. op.) (“Article 11.09 of the Texas Code of Criminal

Procedure, which specifically applies to persons seeking habeas relief who are

confined on misdemeanor charges, does not require a trial court to conduct a live

evidentiary hearing and afford a party the opportunity to present live testimony on

an application filed under the article.”); Ex parte Fisher, No. 03-04-00786-CR,

2005 WL 3076937, at *3 (Tex. App.—Austin Nov. 17, 2005, no pet.) (mem. op.,

not designated for publication) (“[T]he court was entitled to determine from its

face whether the application could be resolved without a hearing.”). Although

Appellant argues that he presented evidence regarding the ineffective assistance

prong of Strickland, he failed to present any evidence on, or even address, the

prejudice prong of Strickland.        The trial court could have determined that a

hearing would not be necessary because Appellant had not attempted to meet

the second Strickland prong.          We therefore affirm the trial court’s denial of

Appellant’s post-conviction application for writ of habeas corpus.




                                            7
                                        LEE GABRIEL
                                        JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

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

DELIVERED: November 27, 2013




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