                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-17-00336-CR
                            ____________________

                      EX PARTE GABRIEL GUTIERREZ


                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 09-03-02725-CR


                          MEMORANDUM OPINION

      Appellant Gabriel Gutierrez appeals the ruling on his post-conviction

application for writ of habeas corpus, which requested that his conviction be vacated

on the grounds of ineffective assistance of counsel. The trial court denied Gutierrez

a hearing and denied his requested habeas relief. We affirm.

                              Background Information

      Gutierrez was stopped by a deputy of the Montgomery County Sheriff’s

Office on the night of December 31, 2008, on a report of a possibly intoxicated driver

and because law enforcement officers observed him driving erratically. Gutierrez

was arrested for driving while intoxicated. While searching Gutierrez during
                                          1
booking, a deputy found two small bags of a white substance that field-tested

positive for cocaine, and Gutierrez was charged with bringing a controlled substance

into a correctional facility.

       On March 17, 2009, a grand jury indicted Gutierrez for possession of a

controlled substance. See Tex. Health & Safety Code Ann. § 481.115 (West 2017).1

In July of 2010, Gutierrez pleaded guilty to the offense charged and also signed a

waiver of preservation of evidence that included an order for the destruction of

evidence. On July 2, 2010, the trial court found Gutierrez guilty of the offense

charged, assessed punishment at confinement in state jail for two years and imposed

a fine of $1500, and certified Gutierrez’s right of appeal. The trial court also

suspended imposition of the sentence and placed Gutierrez on community

supervision for a period of three years. On August 15, 2012, the trial court signed an

order terminating Gutierrez’s community supervision.

       On June 7, 2017, Gutierrez filed an application for writ of habeas corpus

pursuant to article 11.072 of the Texas Code of Criminal Procedure seeking to vacate

his 2010 conviction for possession of a controlled substance. See Tex. Code Crim.

Proc. Ann. art. 11.072 (West 2015). Gutierrez’s application argued that he suffered



       1
        We cite to the current version of statutes as subsequent amendments do not
affect our disposition.
                                          2
adverse collateral legal consequences due to his conviction, specifically that his

deportation was “virtually certain” because he is not eligible for cancellation of

removal. Gutierrez also argued that his trial counsel failed to advise him that his

conviction pursuant to a guilty plea would result in deportation. Gutierrez’s brief in

support of his application explains that he is ineligible for cancellation of removal

because he cannot satisfy the seven-year continual residency requirement of the

Immigration and Nationality Act. See 8 U.S.C.S. § 1229b(a)(2) (2007). Gutierrez

argued that had he known he was statutorily ineligible for cancellation of removal

or any other relief from the immigration court, and that consequently deportation

would be a “virtual certainty,” he would not have pleaded guilty to the drug charge.

Gutierrez also argued that he received ineffective assistance because his trial counsel

failed to adequately advise him “of the gravity of the immigration consequences” of

his guilty plea and failed to advise him of possible alternatives to pleading guilty.

      On August 7, 2017, the trial court denied Gutierrez’s application and also

entered findings of fact and conclusions of law. Therein, the trial court found, in

relevant part, Gutierrez’s affidavit was not credible, the affidavit of Gutierrez’s trial

counsel was credible, that Gutierrez’s trial counsel had advised him that his guilty

plea would subject him to deportation, that Gutierrez’s guilty plea was knowing and

voluntary, that Gutierrez had provided no explanation for waiting seven years to file

                                           3
his application for writ of habeas corpus, and that the controlled substance for which

Gutierrez had been charged had been destroyed pursuant to the trial court’s order.

The trial court concluded that (1) there were no previously unresolved issues of fact

material to Gutierrez’s conviction and sentence and, therefore, no evidentiary

hearing was required; (2) Gutierrez failed to establish that his plea was involuntary

due to the ineffective assistance of counsel; and (3) the doctrine of laches barred

Gutierrez’s claim for relief. Gutierrez filed a notice of appeal.

                                        Issues

      Appellant raises three issues on appeal. In his first issue, Appellant argues that

the trial court erred in concluding that his claim for relief was barred by laches.

Appellant’s second issue argues that he did not receive effective assistance of

counsel because his trial counsel did not advise him that his guilty plea would result

in certain deportation. And, Appellant’s third issue argues that the trial court erred

in failing to hold an evidentiary hearing on his application for writ of habeas.

                                 Standard of Review

      A defendant convicted and ordered to community supervision may attack the

validity of the conviction by way of habeas corpus if he is either (1) confined or

restrained as a result of a judgment of conviction ordering community supervision,

or (2) is no longer confined, but is subject to collateral legal consequences resulting

                                           4
from the conviction. See Tex. Code Crim. Proc. Ann. art. 11.072, 11.21, 11.22 (West

2015). We have jurisdiction to review the denial of Gutierrez’s article 11.072 habeas

application because Gutierrez’s application claims that he is subject to collateral

legal consequences, namely deportation or removal, and not eligible for cancellation

of removal, as a result of his guilty plea and conviction. See Ex parte Ali, 368 S.W.3d

827, 831-33 (Tex. App.—Austin 2012, pet. ref’d) (considering habeas application,

even after applicant completed his community supervision sentence, based on

collateral legal consequences of applicant’s inability to obtain citizenship or

permanent resident alien status and risk of removal proceedings).

      We review the denial of habeas corpus relief under an abuse-of-discretion

standard and consider the facts 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 post-conviction habeas corpus relief bears the burden of

establishing by a preponderance of the evidence that the facts entitle him to relief.

Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Richardson,

70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We afford almost complete deference

to the habeas court’s determination of historical facts supported by the record,

especially when those factual findings rely upon an evaluation of credibility and

demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297 (Tex. App.—Houston [14th Dist.]

                                          5
2003, no pet.). We apply the same deference in reviewing the habeas court’s

application of law to fact questions, if the resolution of those determinations rests

upon an evaluation of credibility and demeanor; if the outcome of those ultimate

questions turns upon an application of legal standards, we review the habeas court’s

determination de novo. Id.

      The test for whether the trial court abused its discretion is whether its ruling

was arbitrary or unreasonable, and the mere fact that a trial court may decide a matter

within its discretionary authority in a different manner than an appellate court would

in a similar circumstance does not demonstrate that an abuse of discretion occurred.

Ex parte Uribe, 516 S.W.3d 658, 665 (Tex. App.—Fort Worth 2017, pet. ref’d). We

will only overrule the trial court’s ruling on an application for a writ of habeas corpus

if the court’s ruling was outside the zone of reasonable disagreement. Id.; Ex parte

Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet. ref’d) (op. on reh’g)

(“[A]bsent an abuse of discretion, we must affirm a habeas court’s decision on

whether to grant the relief requested in a habeas corpus application.”).

                                        Laches

      Appellant’s first issue argues that the trial court erred in ruling that the

doctrine of laches barred his claim for relief. According to Appellant, a trial court

cannot rule on a laches defense without conducting a hearing because laches is a

                                           6
fact-sensitive inquiry. Appellant also argues that the mere passage of time is not

sufficient to invoke laches and that the trial court failed to analyze whether

Appellant’s seven-year delay was unreasonable, whether it was due to neglect, and

whether it prejudiced the State.

      The doctrine of laches is appropriate for application in the context of an

application for writ of habeas corpus, as laches is an equitable common-law doctrine

and habeas corpus is an equitable remedy. See Ex parte Carrio, 992 S.W.2d 486,

487-88 (Tex. Crim. App. 1999). In determining whether laches bars a claim, a court

makes a case-by-case inquiry to determine whether equitable relief is warranted by

the circumstances of the case. See Ex parte Perez, 398 S.W.3d 206, 216-17 (Tex.

Crim. App. 2013) (citing Holland v. Florida, 560 U.S. 631, 649-50 (2010); Baggett

v. Bullitt, 377 U.S. 360, 375 (1964); Holmberg v. Armbrecht, 327 U.S. 392, 396

(1946)).

      Laches acts as a bar to relief when a habeas applicant’s unreasonable delay

has prejudiced the State, thereby rendering consideration of his claim inequitable.

See Perez, 398 S.W.3d at 219. When determining whether laches will bar a habeas

application, courts should “keep, at the fore, the State’s and society’s interest in the

finality of convictions, and consider the trial participants’ faded memories and the

diminished availability of evidence.” Ex parte Smith, 444 S.W.3d 661, 666 (Tex.

                                           7
Crim. App. 2014) (footnotes omitted). Laches is determined using a “sliding scale,”

wherein “the extent of the prejudice the State must show bears an inverse

relationship to the length of the applicant’s delay.” Perez, 398 S.W.3d at 217. The

rationale for the sliding-scale approach is based on the common-sense understanding

that the longer a case has been delayed, the more likely it is that the reliability of a

retrial has been compromised. Id. at 218-19. Trial courts “may draw reasonable

inferences from the circumstantial evidence to determine whether excessive delay

has likely compromised the reliability of a retrial.” Id. at 217. Delays of “more than

five years may generally be considered unreasonable in the absence of any

justification for the delay.” Id. at 216 n.12.

      Nevertheless, delay alone is insufficient for laches to bar a claim, and courts

should consider factors including: (1) the length of applicant’s delay in requesting

equitable relief; (2) the reasons for the delay; (3) the degree and type of prejudice

borne by the State resulting from applicant’s delay; and (4) whether the delay may

be excused. Ex parte Bowman, 447 S.W.3d 887, 888 (Tex. Crim. App. 2014). Delay

may be excused when the record shows that: (1) an applicant’s delay was not

unreasonable because it was due to a justifiable excuse or excusable neglect; (2) the

State would not be materially prejudiced as a result of the delay; or (3) the applicant

is entitled to equitable relief for other compelling reasons, such as new evidence that

                                            8
shows he is actually innocent of the offense. Smith, 444 S.W.3d at 667. Laches is a

question of fact and, in article 11.072 cases such as this one, the trial judge is the

sole finder of fact. See Bowman, 447 S.W.3d at 888; Ex parte Garcia, 353 S.W.3d

785, 788 (Tex. Crim. App. 2011).

          In this case, the trial court’s findings of fact included the following relevant

to the issue of laches:

          [] The applicant has provided no explanation for the nearly-seven-year
          delay between the date this Court entered judgment and the date the
          applicant filed his application for writ of habeas corpus in this
          proceeding.

          [] The controlled substance found in the applicant’s pocket and forming
          the basis of the charge in this case has been destroyed pursuant to this
          Court’s order.

The trial court concluded that the doctrine of laches barred Appellant’s claim for

relief.

          The record reflects that the trial court entered the judgment of conviction in

July of 2010, and Appellant did not appeal from that judgment. Appellant was

released from his community supervision by order signed on August 15, 2012.

Appellant then waited another five years, nearly seven years after his judgment of

conviction, before filing his habeas application, and he offered no evidence to justify

or explain the delay. Appellant identified no change in law, legal status, or available


                                              9
evidence that would have prompted such a tardy application. In sum, Appellant

offered no excuse or explanation for his neglect or delay.

      In addition, the record reveals that Appellant waived preservation of evidence,

and that the controlled substance forming the basis of Appellant’s charge has been

destroyed pursuant to the trial court’s order. Because the controlled substance for

which Gutierrez had been arrested has been destroyed, in any retrial, the State would

suffer a diminished ability to prove that Appellant possessed a controlled substance,

and the trial court could have reasonably concluded that the State was materially

prejudiced due to Appellant’s delay. See Smith, 444 S.W.3d at 667.

      The record in this case does not reveal any justification for Appellant’s delay

in seeking habeas corpus relief, and the record also supports a conclusion that the

State has been prejudiced in its ability to retry its case. See Ex parte Roberts, 494

S.W.3d 771, 776 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (concluding

that laches barred a habeas claim where appellant provided no basis for his delay

and the evidence available for retrial was diminished because the drugs forming the

basis for the criminal charges had been destroyed). Accordingly, we conclude that

Appellant has not shown that the trial court abused its discretion by concluding that

Appellant’s application for writ of habeas corpus is barred by laches. Id.; Perez, 398

S.W.3d at 216. We overrule Appellant’s first issue.

                                         10
                     Alleged Ineffective Assistance of Counsel

      Even assuming Appellant’s claim was not barred by laches, we next consider

Appellant’s second issue that he did not receive the effective assistance of counsel

when entering his guilty plea. According to Appellant, his trial attorney gave only a

“boilerplate warning” that his guilty plea would subject him to deportation.

Appellant argues that his trial counsel’s affidavit testimony only admonished him

that he “may be” deported, and an admonishment that falls short of advising that a

guilty plea would result in certain deportation is constitutionally deficient. In

addition, Appellant argues that his trial counsel failed to advise him he was ineligible

for cancellation of removal because he does not meet the seven-year continual

residency requirement of applicable immigration regulations.

      A defendant is entitled to effective assistance of counsel when entering a

guilty plea. Padilla v. Kentucky, 559 U.S. 356, 364 (2010); Hill v. Lockhart, 474

U.S. 52, 58-59 (1985). When seeking post-conviction habeas relief on a claim of

ineffective assistance, a defendant bears the burden of proving by a preponderance

of the evidence that (1) counsel’s performance was deficient, in that it fell below an

objective standard of reasonableness, and that (2) he was prejudiced as a result of

counsel’s errors because, but for those errors, “‘he would not have pleaded guilty

and would have insisted on going to trial.’” Lee v. United States, 137 S. Ct. 1958,

                                          11
1969 (2017) (quoting Hill, 474 U.S. at 59); Ex parte Torres, 483 S.W.3d 35, 43 (Tex.

Crim. App. 2016); see also Strickland v. Washington, 466 U.S. 668, 687, 693 (1984).

         In Padilla, the U.S. Supreme Court held that the Sixth Amendment requires

an attorney for a criminal defendant to provide advice about the risk of deportation

arising from a guilty plea. 559 U.S. at 374. Counsel’s performance is deficient if

counsel fails to advise a noncitizen client with “accurate legal advice about the ‘truly

clear’ consequences of a plea of guilty to an offense that, as a matter of law, renders

him ‘subject to automatic deportation.’” Torres, 483 S.W.3d at 46 (quoting Padilla,

559 U.S. at 360, 369). A failure by counsel to affirmatively and correctly advise a

defendant regarding the clear deportation consequences of his plea will render

counsel’s performance constitutionally deficient, thereby satisfying the first

Strickland prong. See Padilla, 559 U.S. at 369, 374; Torres, 483 S.W.3d at 43-46;

Ex parte Aguilera, 540 S.W.3d 239, 247 (Tex. App.—Houston [1st Dist.] 2018, no

pet.).

         As for the second Strickland prong, the Court of Criminal Appeals recently

held,

         . . . that the proper standard for determining prejudice is the one set
         forth in Hill, which requires an applicant to show a reasonable
         probability that counsel’s errors affected the outcome of the plea
         proceedings, in the sense that, but for counsel’s errors, the applicant
         would have rejected the plea bargain and instead pursued a trial.

                                           12
Torres, 483 S.W.3d at 46 (citing Hill, 474 U.S. at 59). Similarly, the U.S. Supreme

Court recently held that the Hill standard is the proper test for prejudice under

Padilla. See Lee, 137 S. Ct. at 1965. The Supreme Court has explained that

      [c]ourts should not upset a plea solely because of post hoc assertions
      from a defendant about how he would have pleaded but for his
      attorney’s deficiencies. Judges should instead look to contemporaneous
      evidence to substantiate a defendant’s expressed preferences.

Id. at 1967.

      In his affidavit accompanying his writ application, Gutierrez attested, in

relevant part, as follows:

             In addition, [my trial counsel] did not advise me that I would be
      placed in deportation proceedings. He did not tell me I would be
      ineligible for cancellation of removal or any other relief from the
      immigration court and that my guilty plea would thus make deportation
      a virtual certainty.

               ....

             For me deportation is a far worse punishment than serving time
      would have been. Had I known that I was statutorily ineligible for
      cancellation of removal or any other relief from the immigration court,
      and that consequently deportation would be a virtual certainty, I would
      not have pled guilty to the drug charge, especially had I been advised
      that the stop may have been illegal and the evidence potentially could
      have been suppressed and the charges dismissed.

      The State attached an affidavit of Appellant’s trial counsel to the State’s

response to the application. Appellant’s trial counsel stated in his affidavit, in

relevant part, as follows:
                                        13
             Long story short, Mr. Gutierrez wanted to get out of jail as
      quickly as possible, and I felt the merits of the case against him were
      very strong, and any argument for suppression was absolutely meritless
      – thus, Defendant elected to take the plea-bargain . . . .

             ....

              I do not recall the specifics of what I told Mr. Gutierrez in our
      initial consultation regarding immigration consequences but with every
      client who asserts that they are not a citizen of the United States in our
      initial consultation I explain that a guilty plea will subject them to
      deportation. I am a fluent Spanish speaker and our entire staff are
      Spanish speakers[,] we have a high volume of clients who are not
      citizens of the United States[,] thus we take great care to advise them
      of potential immigration consequences but also emphasize that we are
      not immigration lawyers. I always tell them I am NOT an immigration
      attorney and that they should seek the advice of an immigration attorney
      prior to pleading to a felony. Generally, my clients’ number one goal is
      to remain outside of jail in order to avoid possible contact with
      immigration officials.

             Prior to the plea I tell every client that is not a citizen of the
      United States that a plea of guilty will subject them to deportation but
      again I cannot assure them of such deportation. I do not remember the
      specifics of my conversation with Mr. Gutierrez on July 2, 2010,
      however, I am certain that I discussed the trial court’s admonitions with
      him on that date as we executed his plea paperwork. Included in those
      admonitions is the fact that a plea of guilty may result in deportation,
      exclusion from the country or denial of naturalization. M[r]. Gutierrez
      understood his admonishments as evidenced by his signature on the
      document. I go over these admonishments thoroughly with every client
      and emphasize the immigration issues with our clients who are not
      citizens of the United States.

      The trial court’s findings of fact included the following relevant to Appellant’s

claim of ineffective assistance of counsel:

                                         14
[] The Court is familiar with the performance of the applicant’s trial
counsel, . . . who has long practiced in the courts of Montgomery
County and is well-qualified for appointment in felony criminal cases.

[] In response to the applicant’s claims, [Appellant’s trial counsel]
executed a sworn affidavit providing his version of the events
surrounding the applicant’s plea. This Court finds his affidavit to be
credible.

[] The applicant’s affidavit is not credible.

[] [Appellant’s trial counsel] discussed the applicant’s citizenship status
with him and knew that the applicant was not a U.S. citizen.

[] [Appellant’s trial counsel] advised the applicant that his plea of guilty
to the charged offense would subject him to deportation.

[] The applicant was aware that his plea of guilty would constitute
ample cause for deportation.

[] The applicant has provided no evidence regarding his residency
history.

[] The applicant has provided no credible evidence that, at the time of
his plea, he had any knowledge regarding his potential eligibility for
cancellation of removal.

[] There is no evidence that [Appellant’s trial counsel] offered any
incorrect advice regarding the applicant’s immigration status or the
potential immigration consequences of entering a guilty plea in this
case.

[] The trial court properly admonished the applicant that his conviction
“may result in deportation, the exclusion from admission to this
country, or the denial of naturalization under federal law.”

[] After [Appellant’s trial counsel] advised the applicant regarding the
consequences a guilty plea would have on the applicant’s immigration
                                    15
      status, and after the trial court admonished the applicant that his
      conviction could subject him to deportation, the applicant never
      expressed any particularized concern about his immigration status prior
      to the entry of his guilty plea.

      [] The applicant’s primary motivation during plea negotiations was to
      get out of jail as quickly as possible.

      The record in this case also reflects that, prior to accepting Gutierrez’s guilty

plea, Gutierrez signed admonitions stating he understood his guilty plea could have

adverse immigration consequences. The plea admonishments included the following

statement: “If the Defendant is not a citizen of the United States of America, a plea

of guilty or no contest for the offense charged may result in deportation, the

exclusion from admission to this country, or the denial of naturalization under

federal law.”

      Giving deference to the trial court’s findings of fact, we conclude the record

supports an inference that Appellant’s trial counsel advised him that a guilty plea

would result in deportation, as required by Padilla. See Padilla, 559 U.S. at 369,

374; Torres, 483 S.W.3d at 43-46. Therefore, Appellant has failed to establish

deficient performance as required by Strickland. See Strickland, 466 U.S. at 687.

      In addition, we conclude that Appellant has failed to make the required

showing of prejudice, that is, but for trial counsel’s alleged errors, Appellant would

have rejected the plea bargain and instead have pursued a trial. See Lee, 137 S. Ct.

                                         16
at 1965; Torres, 483 S.W.3d at 46 (citing Hill, 474 U.S. at 59). We look to the

contemporaneous evidence of Appellant’s expressed preferences in favor of his post

hoc assertions. See Lee, 137 S. Ct. at 1967. In his affidavit, Appellant’s trial counsel

attested that Appellant “wanted to get out of jail as quickly as possible[.]” Appellant

signed plea admonishments that reflected he understood that his guilty plea could

have adverse immigration consequences. See Ex parte Rodriguez, 378 S.W.3d 486,

496 (Tex. App.—San Antonio 2012, pet. ref’d) (concluding appellant failed to show

prejudice under Strickland in part because the trial court’s admonishments addressed

deportation consequences, even if the attorney’s advice had been deficient under

Padilla) (citing Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002)). The

trial court found that Gutierrez’s “primary motivation during plea negotiations was

to get out of jail as quickly as possible.” And the trial court found Appellant’s

affidavit supporting his application for writ of habeas corpus to be “not credible.”

      Appellant also argues that Padilla required his trial counsel to inform him, not

only that a guilty plea would subject him to removal, but also that he was ineligible

for cancellation of removal. Appellant argues that his counsel had a duty “to analyze

both the applicable INA removal provision and the alien’s eligibility for

discretionary relief, and then calibrate the admonishment to accurately communicate

the severity of an alien’s immigration consequences.”

                                          17
      We disagree that Padilla imposes such a duty. In Padilla, the Court explained:

             Immigration law can be complex, and it is a legal specialty of its
      own. Some members of the bar who represent clients facing criminal
      charges, in either state or federal court or both, may not be well versed
      in it. There will, therefore, undoubtedly be numerous situations in
      which the deportation consequences of a particular plea are unclear or
      uncertain. The duty of the private practitioner in such cases is more
      limited. When the law is not succinct and straightforward . . . , a
      criminal defense attorney need do no more than advise a noncitizen
      client that pending criminal charges may carry a risk of adverse
      immigration consequences.

559 U.S. at 369. “By its terms, the Supreme Court’s holding in Padilla is limited to

the deportation consequences of a plea.” Ex parte Velasquez-Hernandez, No. WR-

80,325-01, 2014 Tex. Crim. App. Unpub. LEXIS 874, at *15 (Tex. Crim. App. Oct.

15, 2014) (not designated for publication) (Keller, P.J., concurring) (citing Padilla,

559 U.S. at 369).

      Appellant also argues that in Ex parte Rodriguez, the San Antonio Court of

Appeals concluded that because Rodriguez was eligible for cancellation of removal,

the consequences of her guilty plea were not certain and, therefore, her attorney’s

warning that she “may be deported” was not constitutionally infirm. See 378 S.W.3d

at 496-97. Appellant argues that because he is not eligible for cancellation of

removal, Ex parte Rodriguez requires that his attorney was required to inform him

that deportation or removal was virtually certain.


                                         18
      In Rodriguez, the San Antonio Court explained that, if the deportation

consequences for a defendant’s plea are not clear, “a criminal defense attorney need

do no more than advise a noncitizen client that pending criminal charges may carry

a risk of adverse immigration consequences.” Rodriguez, 378 S.W.3d at 491 (citing

Padilla, 559 U.S. at 369; Ex parte Rodriguez, 350 S.W.3d 209, 211 (Tex. App.—

San Antonio 2011, no pet.)). Cancellation of removal in turn depends on numerous

factors and the decision to grant relief rests in the immigration judge’s discretion.

See Rodriguez, 378 S.W.3d at 493 (citing In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA

1998); Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978)). A legal permanent

resident seeking cancellation of removal “bears the burden of demonstrating that his

or her application for relief merits favorable consideration.” Id. at 490 (citing In re

C-V-T-, 22 I. & N. at 12; 8 C.F.R. If 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. Id. at 493

(citing Padilla, 559 U.S. at 369). Accordingly, where a defendant’s deportation

consequences are not truly clear, plea counsel’s duty is limited to advising the

defendant of possible deportation consequences. See id. at 496 (citing Padilla, 559

U.S. at 368; Rodriguez, 350 S.W.3d at 211).




                                          19
      On this record, we conclude that the trial court could have reasonably

determined that Appellant did not establish by a preponderance of the evidence that

the facts entitled him to relief. See Kniatt, 206 S.W.3d at 664; Richardson, 70 S.W.3d

at 870. In the absence of Texas or United States Supreme Court cases that have

extended Padilla as Appellant advocates, we will not do so.2 Deferring, as we must,

to the trial court’s findings of fact, we conclude that the trial court did not abuse its

discretion in concluding that Appellant had failed to establish that his plea was

involuntary due to the ineffective assistance of counsel, either because Appellant

failed to show deficient performance, or because he failed to show prejudice, or both.

See Strickland, 466 U.S. at 687, 693. We overrule Appellant’s second issue.

                           Hearing on the Writ Application

      Appellant’s third issue argues that the trial court erred in failing to conduct an

evidentiary hearing before ruling on his application for writ of habeas corpus.

Appellant concedes that a trial court is not required to conduct an evidentiary hearing

before ruling on a writ application. See Tex. Code. Crim. Proc. Ann. art. 11.072



      2
        Appellant’s brief cites to cases from other states in support of his argument.
The decisions of the courts of other states are not binding on Texas state courts. See
Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 295-97 (Tex. 1993) (holding
that Texas courts are only obligated to follow decisions by higher Texas courts and
the United States Supreme Court); Jeffery v. State, 169 S.W.3d 439, 443 n.1 (Tex.
App.—Texarkana 2005, pet. ref’d) (same).
                                           20
§ 6(b) (“In making its determination, the court may order affidavits, depositions,

interrogatories, or a hearing, and may rely on the court’s personal recollection.”).

Nevertheless, Appellant argues that under Ex parte Wheeler, 203 S.W.3d 317 (Tex.

Crim. App. 2006), when an applicant submits a prima facie claim and facts are

disputed, the trial court considering a habeas application “must hold a hearing or at

least allow the submission of supplemental evidence.”

      Ex parte Wheeler concerned a post-conviction habeas corpus proceeding in

which the trial court conducted an evidentiary hearing, but we find nothing in

Wheeler that requires such a hearing. Id. at 325-26. Article 11.072 specifically

provides that a court “may” order affidavits, depositions, interrogatories, or a

hearing, and that the court may rely on its own recollection. Tex. Code. Crim. Proc.

Ann. art. 11.072 § 6(b). The statutory use of the word “may” indicates that a hearing

is permissive and not mandatory. See Ex parte Cummins, 169 S.W.3d 752, 757 (Tex.

App.—Fort Worth 2005, no pet.) (“While section 6(b) clearly indicates that in

making its determination the trial court may order affidavits, depositions,

interrogatories, or a hearing, it does not require that the trial court do so.”); see also

Ex parte Aguilar, 501 S.W.3d 176, 178 (Tex. App.—Houston [1st Dist.] 2016, no

pet.) (“[A]rticle 11.072 does not require the trial court to hold any hearing—let alone

an evidentiary hearing—before rendering its decision.”); Ex parte Gonzalez, 323

                                           21
S.W.3d 557, 558-59 (Tex. App.—Waco 2010, pet. ref’d) (“[A] trial court is not

required to conduct an evidentiary hearing to resolve controverted material fact

issues in a postconviction habeas proceeding.”); Ex parte Franklin, 310 S.W.3d 918,

922-23 (Tex. App.—Beaumont 2010, no pet.) (explaining that a trial court is not

required to hold oral hearing when determining whether to deny habeas application

alleging ineffective assistance of counsel).3

      We note that the same trial court judge presided over Gutierrez’s original

proceedings as his habeas proceedings, and article 11.072 permits a court to rely on

its own recollection in ruling on a writ application. See Tex. Code. Crim. Proc. Ann.

art. 11.072 § 6(b). The trial court’s findings of fact and conclusions of law reflect

that it considered affidavit evidence submitted by both Gutierrez and by the State,

and the trial court made credibility determinations. In addition, the trial court

concluded that there was “ample evidence in the record for the Court to rule on the

relief sought, [and] an evidentiary hearing is not required.” Accordingly, we find no




      3
        We note that, in Ex parte Franklin, this Court held that an evidentiary
hearing is required under article 11.072 when a habeas applicant claims actual
innocence based on newly-discovered evidence. 310 S.W.3d 918, 921-23 (Tex.
App.—Beaumont 2010, no pet.); see also Tex. Code Crim. Proc. Ann. art. 11.072
§ 6(b) (West 2015). Gutierrez’s writ application did not make a claim of actual
innocence based on newly-discovered evidence, and his brief does not cite to
Franklin in support of his argument.
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error by the trial court in ruling on the writ application without holding an

evidentiary hearing. We overrule Appellant’s third issue.

      Having overruled all Appellant’s issues, we affirm the trial court’s order.

      AFFIRMED.


                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on January 26, 2018
Opinion Delivered June 13, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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