                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00020-CR


EX PARTE DIMAS ROJAS
MARTINEZ


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant filed a notice of appeal from the trial court’s order denying his

application for habeas corpus relief under article 11.072 of the code of criminal

procedure. Tex. Code Crim. Proc. Ann. art. 11.072, §§ 7(a), 8 (West Supp.

2013). We affirm.

                                   Background

      On June 3, 2013, appellant pled guilty to indecency with a child pursuant to

a plea bargain and, in accordance with the plea bargain, the trial court placed

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       See Tex. R. App. P. 47.4.
him on five years’ deferred adjudication community supervision. As a result of

his plea, appellant was detained by the United States Immigration and Customs

Enforcement (ICE) in July 2013.          In September 2013, appellant filed an

application for writ of habeas corpus, in which he claimed that his trial counsel

rendered ineffective assistance because, at the time of his plea, his counsel

failed to inform appellant that he would be subject to mandatory removal from the

United States. See 8 U.S.C.A. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii) (West 2005).

      In an affidavit attached to his application, appellant averred that his

attorney knew that he was a legal permanent resident of the United States, that

he decided to accept the plea deal because his attorney told him “it was a better

deal than previous offers,” and that only after he signed the plea documents did

his attorney tell him he should consult with an immigration lawyer “just in case

immigration . . . [came] to see” him. According to appellant, “[a]t the time of the

plea [he] was[ ]unaware[ ]that[ ]there would be such dire immigration

consequences,” and he would not have pled guilty if he had known.

      The State filed with the trial court an affidavit from appellant’s trial counsel,

in which counsel averred that he was surprised when appellant accepted the

State’s plea offer, that appellant did not want to risk prison time, and that the trial

judge admonished him specifically on deportation and exclusion. According to

appellant’s counsel, he made “[n]o recommendation to [appellant] to consult [an]

immigration attorney before [the] plea because nothing could be done to assist

his status on a 3g offense.”


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       The trial court also held an evidentiary hearing on appellant’s application.

At the hearing, appellant’s trial counsel testified that there was nothing an

immigration lawyer could have done for appellant in his circumstances, so he did

not refer appellant to an immigration lawyer before advising him to accept the

plea. Appellant’s counsel testified that he initialed and had appellant initial the

section of the plea admonishments that says a plea of guilty could result in

deportation from the United States; that was the only paragraph he had appellant

initial specifically. He further testified that when going over this admonishment

with appellant, he told him that “the expectation is that . . . if they [ICE] take

action, it will be a removal and there is not anything that an immigration attorney

can do to help you with that.” Appellant’s counsel admitted that he did not know

for sure whether appellant “truly understood” the admonishment, but he said he

explained it and felt comfortable that appellant understood. He also said the trial

judge explained the immigration consequences and that appellant listened.

       According to appellant’s trial counsel, the only thing an immigration lawyer

could have advised appellant was that if he took the plea, he could be removed

from the country, which is what appellant’s counsel advised. He said this would

have been a good case as to punishment but that it was not a good case for

obtaining an acquittal on guilt-innocence. He said appellant understood the only

hope he had was acquittal.       He also testified that there were no language

difficulties at all.




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      The trial court adopted the State’s proposed memorandum, which included

the following pertinent findings of fact and conclusions of law:

           12. [Counsel] believed that the State’s guilt-innocence case
      was strong despite credibility issues involving the child[ ]victim’s
      mother.

            13. [Counsel] was aware that the applicant was a permanent
      resident alien and not a United States citizen.

           14. [Counsel] was aware that criminal defense attorneys have
      an obligation to advise their clients regarding the potential
      immigration consequences of a guilty plea.

           15. [Counsel’s] normal practice is to refer non-citizen clients to
      an immigration attorney when needed.

            16. [Counsel] did not refer the applicant to an immigration
      attorney because the immigration consequences were clear – the
      applicant would be deported if convicted of a 3g offense.

            17. [Counsel] did not believe that an immigration attorney
      could provide the applicant any more information regarding his
      potential deportation consequences.

            18. The applicant understood that acquittal was his only hope
      of avoiding immigration consequences.

             19. Due to the applicant’s understanding that acquittal was his
      only hope of avoiding immigration consequences, [counsel] did not
      extensively discuss the immigration consequences of entering a
      guilty plea.

             ....

            22. The State made an original plea bargain offer of seven
      years’ confinement.

             23. Shortly before trial, the State made a new plea bargain
      offer of two years’ confinement or five years’ deferred adjudication
      community supervision.



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     24. [Counsel] understood that both plea bargain offers had
immigration consequences for the applicant.

         25. The State did not make an immigration-safe plea bargain
offer.

       26. There is no evidence that the State would have offered,
considered or accepted a plea bargain agreement for an offense not
resulting in the same immigration consequences.

      27. The applicant accepted the State’s five years’ deferred
adjudication community supervision plea bargain offer because he
was concerned with going to prison.

      28. [Counsel] was surprised that the applicant accepted the
plea bargain offer, but believes that his decision was wise given the
applicant’s slight chance of acquittal.

      29. [Counsel] discussed the immigration consequences with
the applicant before he entered his guilty plea.

       30. The trial court’s written plea admonishments contained the
following warning regarding the risk of deportation:

       Citizenship: If you are not a citizen of the United States of
America, a plea of guilty or nolo contendere for this offense may
result in deportation, the exclusion from admission to this country, or
the denial of naturalization under federal law.

     31. [Counsel] reviewed this admonishment with the applicant,
and had him initial it.

     32. [Counsel] further explained to the applicant that, due to
being charged with a 3g offense, he should expect removal
proceeding as an immigration consequence.
     ....

        43. The applicant was fully advised by [counsel] and by the
trial judge regarding the immigration consequences of a guilty plea
before he entered his guilty plea.

         44. [Counsel] fully apprised the applicant of his legal options.



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             45. [Counsel’s] writ hearing testimony and his affidavit
      attestations are credible.

            46. [Counsel] provided the applicant with              adequate
      representation as guaranteed by the Sixth Amendment.

             ....

             51. The applicant received effective assistance of counsel.


             ....

             CONCLUSIONS OF LAW

             ....

             13. [Counsel] fully advised the applicant regarding the risk of
      deportation, as required by Padilla v. Kentucky, including that he
      should expect removal proceedings as an immigration consequence
      of his guilty plea.

            14. [Counsel] provided the applicant with              adequate
      representation as guaranteed by the Sixth Amendment.

            15. The trial judge specifically advised the applicant that he
      would have immigration consequences from his guilty plea.

             16. The applicant was made aware that a guilty plea would
      result in deportation from the United States.

             ....

           28. The applicant received effective assistance of trial
      counsel.

[Citations omitted.]

                              Standard of Review

      We review a trial court’s denial of the relief requested in an application for

a writ of habeas corpus under an abuse of discretion standard. See Kniatt v.


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State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied, 549 U.S. 1052

(2006). This means we view the record in the light most favorable to the trial

court’s ruling and afford great deference to its findings and conclusions,

especially when they involve determinations of credibility and demeanor.

Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.––Fort Worth 2011, pet. ref’d)

(op. on PDR).

                                    Analysis

      In Padilla v. Kentucky, the United States Supreme Court held that

counsel’s “advice regarding deportation is not categorically removed from the

ambit of the Sixth Amendment right to counsel” and that the Strickland test for

ineffectiveness applies to a claim that counsel’s advice regarding the immigration

consequences following a guilty plea was deficient. 559 U.S. 356, 366, 130 S.

Ct. 1473, 1482 (2010). The court held that “[t]he weight of prevailing professional

norms supports the view that counsel must advise [a] client regarding the risk of

deportation.” Id. at 367, 130 S. Ct. at 1482. In Padilla, as in this case, the

relevant statutes were “succinct, clear, and explicit in defining the removal

consequence”; thus, the Supreme Court concluded that Padilla’s counsel had an

equally clear duty to give Padilla correct advice regarding the immigration

consequences of his guilty plea. Id. at 368–69, 130 S. Ct. at 1483.

      Here, the trial court found appellant’s counsel to be credible, in particular

his testimony that he advised appellant before the guilty plea that a trial and

acquittal would be the only way to avoid immigration consequences. Thus, the


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trial court’s conclusion that appellant was made aware that deportation would

result from his guilty plea is supported by the record. See Ex parte Obi, No. 01-

12-01003-CR, 2013 WL 4520936, at *5 (Tex. App.––Houston [1st Dist.] Aug. 27,

2013, no pet. h.). We conclude and hold that the trial judge did not abuse her

discretion by determining that counsel’s performance was not deficient under

Strickland. See id.

                                   Conclusion

      We affirm the trial court’s order denying appellant’s application for habeas

relief under article 11.072 of the code of criminal procedure.


                                                    /s/ Terrie Livingston

                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

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

DELIVERED: March 20, 2014




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