                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00372-CR


EX PARTE ELIDA URIBE




                                    ----------

         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2009-1488-E

                                    ----------

                                  OPINION

                                    ----------

                                I. Introduction

      Appellant Elida Uribe appeals the trial court’s denial of her habeas

application, arguing that she received ineffective assistance of counsel with

regard to the immigration consequences of her guilty plea and that, but for

counsel’s deficient performance, she would not have pleaded guilty and would

have insisted on going to trial. See Tex. Code Crim. Proc. Ann. art. 11.09 (West

2015); Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483 (2010); see
also Le v. State, 300 S.W.3d 324, 326–27 (Tex. App.—Houston [14th Dist.] 2009,

no pet.) (discussing jurisdiction over habeas application based on “collateral legal

consequences” from misdemeanor conviction). We affirm.

                                 II. Background

      Lewisville police arrested Uribe, a Mexican citizen, on March 31, 2009,

alleging that she had beaten her “sister,” Mariana Segura,1 “with her fists and

stabbed her with a knife.”      The police interviewed Segura in the hospital

emergency room, where she reported that Uribe had knocked her to the ground,

repeatedly punched her in the face, hit her in the face with a purse, kicked her in

the mouth, and cut her forearm with a six-inch steak knife, leaving a one-inch

laceration that required stitches.   An officer photographed Segura’s injuries,

which included the laceration and other bumps, bruises, and scratches. Segura

gave the officer permission to retrieve the knife from the apartment where the

assault occurred. The police also took photographs that depicted the knife and

blood on the carpet from the scene of the assault.




      1
        Segura, whose last name appears both as “Segura” and “Sequra” in the
various case documents, was not Uribe’s sister; rather, according to Uribe, they
had been such close friends that they started telling people that they were
sisters. The police report reflected that Segura told police that Uribe was her
sister although in her written statement to the police, Segura stated that Uribe
had been her friend. Uribe called Segura her sister in her written police
statement.


                                         2
      After receiving and waiving her Miranda rights, Uribe recounted to the

police her version of the encounter, admitting that she had assaulted Segura.2

She also admitted that she had grabbed a steak knife from the kitchen but said

that Segura was cut when Segura reached for it.3            Uribe was indicted for

aggravated assault with a deadly weapon,4 a second-degree felony offense with

a punishment range of two to twenty years’ confinement and up to a $10,000

fine. See Tex. Penal Code Ann. §§ 12.33, 22.02(b) (West 2011).


      2
       In her handwritten and signed statement to the police, Uribe stated,

      I walked to her and punched her straight on the face and dropped
      her on the floor and started to punch her on the face and pulled her
      hair and I got a knife to scare her because she is terrified of them
      and she tried to push it of[f] my hand and cut herself after that I
      talked more mess and I grabbed the chunks of hair from the floor
      and threw them at her and told her to ask Valerie to glue them back
      on and I left.
      3
        The “Details of Arrest” portion of the police report reflect that with regard
to the assault, Uribe said,

            I beat her ass, I got on top of her and punched her and
      punched her, and couldn’t stop myself, I kicked her in the face. I
      then got up and grabbed a steak knife and wanted to scare her
      because I know she is terrified of them, and she went to grab it away
      she got cut.
      4
        Uribe’s indictment alleged that she had intentionally, knowingly, or
recklessly caused bodily injury to Segura by striking her with her hand and that
she had used or exhibited a deadly weapon (a knife) that in the manner of its use
or intended use was capable of causing death or serious bodily injury during the
commission of the assault. See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West
Supp. 2016) (defining “deadly weapon”), § 22.02(a)(2) (West 2011) (elements of
aggravated assault with a deadly weapon), § 22.01(a) (West Supp. 2016)
(elements of assault).


                                         3
      Uribe pleaded guilty to Class A misdemeanor assault as a lesser-included

offense5 in exchange for 270 days’ confinement in county jail with no fine and no

family violence finding.6 See id. § 12.21 (West 2011) (stating that an individual

adjudged guilty of a Class A misdemeanor shall be punished by a fine not to

exceed $4,000, confinement in jail for a term not to exceed one year, or both

such fine and confinement). Uribe’s plea agreement included the statement, “I

understand that if I am not a citizen of the United States of America a plea of

guilty or nolo contendere for the offense charged may result in deportation, the

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

Federal law.”

      The trial court signed the judgment of conviction on September 17, 2009.

A few months later, the U.S. Department of Homeland Security (DHS) served

Uribe with a notice to appear, charging her with removability under 8 U.S.C.

§ 1182(a)(6)(A)(i).7


      5
       A person commits assault if she intentionally, knowingly, or recklessly
causes bodily injury to another or intentionally or knowingly threatens another
with imminent bodily injury; an assault is usually a Class A misdemeanor. Tex.
Penal Code Ann. § 22.01(a), (b).
      6
       As set out above, Segura and Uribe were not family members but they
had referred to each other as sisters in their conversations with the police.
      7
       8 U.S.C. § 1182(a)(6)(A)(i) provides that aliens who are inadmissible
because they are “present in the United States without being admitted or paroled,
or who arrive[d] in the United States at any time or place other than as
designated by the Attorney General,” are ineligible to receive visas and ineligible
to be admitted to the United States. 8 U.S.C.A. § 1182(a)(6)(A)(i) (West 2005);
see also id. § 1227(a)(1)(A) (West 2005 & Supp. 2016) (defining as deportable

                                        4
      Seven years later, in 2016, Uribe filed her application for writ of habeas

corpus, to which she attached copies of the 2009 indictment and judgment of

conviction, an affidavit in which she set out another version of the facts

underlying the conviction and raised a self-defense claim,8 DHS’s notice to

appear, her former immigration counsel’s affidavit, and her current immigration

counsel’s affidavit.

      Uribe’s current immigration counsel averred,

            Based on the legal advice of both [Uribe’s former criminal
      defense counsel and her former immigration counsel], Mrs. Uribe-
      Guerrero accepted a plea offer in her criminal case that resulted in a
      sentence of 270 days in state custody. At the time, neither her
      criminal attorney nor her immigration attorney advised Mrs. Uribe-
      Guerrero that as a result of that plea, she would become ineligible to
      request cancellation of removal in immigration court.[9] Specifically,

any alien who “at the time of entry or adjustment of status was within one or more
of the classes of aliens inadmissible by the law existing at such time”).
      8
        In her affidavit, Uribe explained that she had confronted Segura about
spreading lies about her and told Segura “that if she was that mad at [Uribe] she
need to hit [Uribe], so [Segura] did.” Uribe hit her back and they started to fight.
Uribe averred that Segura told her at one point during the altercation that she
was going to bring her butterfly knife to finish it, so to protect herself, Uribe went
into the kitchen, grabbed a knife from the sink, and showed it to Segura, telling
her that she was prepared to protect herself if Segura came at her. Uribe denied
having ever touched Segura with the knife but said that the interviewing officer
did not believe her self-defense claim and said she “was made guilty from the
beginning.”
      9
       See 8 U.S.C.A. § 1229b (West 2005 & Supp. 2016) (“Cancellation of
removal; adjustment of status”). Under 8 U.S.C. § 1229b(b), the attorney general
may cancel removal of, and adjust to the status of an alien lawfully admitted for
permanent residence, an alien who is inadmissible or deportable if the alien
(1) has been physically present in the United States for a continuous period of
not less than 10 years immediately preceding the date of such application; (2)
has been a person of good moral character during such period; (3) has not been

                                          5
      an individual who is confined to more than 180 days in jail loses their
      eligibility for this relief.[10] As a result of acting on the erroneous legal
      advice given by both lawyers, Mrs. Elida Uribe’s only remaining
      option is removal.

In his affidavit, her former immigration counsel stated that he did not tell Uribe’s

former criminal defense attorney

      that [8 U.S.C. § 1101(f)(7)] provided that no person shall be
      regarded as a person of good moral character who has been
      confined more than 180 days as a result of a conviction. It was not
      until [he] received [a] memo from [ICE attorney Judson] Davis . . . in
      August 2010 that [he] realized that Ms. Uribe would have a problem
      with good moral character due to the fact that the number of days
      served as a result of the conviction were more than 180 days.

      Uribe stated in her affidavit that her former immigration attorney had

improperly advised her and her criminal defense attorney and stated, “If I would

have known that the plea for misdemeanor assault would have immigration

consequences, I would not have accepted the guilty. I would have pushed my




convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3);
and (4) establishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent residence. Id.
§ 1229b(b).
      10
        8 U.S.C. § 1101(f)(7) provides that no person shall be regarded as or
found to be a person of good moral character who, during the period for which
good moral character is required to be established, is or was “one who during
such period has been confined, as a result of conviction, to a penal institution for
an aggregate period of one hundred and eighty days or more, regardless of
whether the offense, or offenses, for which he has been confined were
committed within or without such period.” Id. § 1101(f)(7) (West 2005). Uribe did
not reveal in her affidavit whether she met any of the remaining elements
necessary to cancel her removal.


                                           6
criminal attorney to pursue a different direction in my case, including going to

trial.”

          The State attached to its answer to Uribe’s application copies of Uribe’s

plea bargain documents; the original police report pertaining to Uribe’s March 31,

2009 arrest, which contained Uribe’s oral statements to the police about the

events of that evening; photographs of Segura’s injuries, the knife, and the blood-

stained carpet; Uribe’s written statement to the police; Segura’s written statement

to the police; Uribe’s book-in photo; Segura’s emergency protective order; and

the court settings with plea bargain data. The State also filed proposed findings

of fact and conclusions of law, which the trial court adopted.

          Among other things, the trial court found the following in its findings of fact:

               2. [Uribe] made a judicial confession and signed plea
          paperwork that she read, understood, and her attorney explained, an
          admonishment regarding the immigration consequences of her plea.

                  3. [Uribe] filed an affidavit from July 15, 2016, wherein she
          claimed that she was the victim of the assault, Mariana Segura hit
          her first, Ms. Segura threatened [Uribe] with a knife, [Uribe] only
          retrieved a knife in self-defense, Ms. Segura was never cut by the
          knife, and police officers did not believe [Uribe]. [Uribe] also claimed
          that had she been given correct immigration advice she would not
          have taken a plea deal and would have “pushed her criminal
          attorney to pursue a different direction in [the] case, including going
          to trial.”

                4. [Uribe] is not credible.

                5. The police report and Ms. Segura’s statements from March
          31, 2009, detailed the assault: [Uribe] confronted Ms. Segura;
          [Uribe] knocked her to the ground; [Uribe] punched her in the face
          repeatedly; [Uribe] hit Ms. Segura with a purse numerous times;
          [Uribe] kicked Ms. Segura in the face; the beating caused Ms.


                                              7
      Segura to lose consciousness; [Uribe] retrieved a knife from the
      kitchen; and Ms. Segura was cut by the knife, requiring stitches.

             6. Officer Richard Crociata took pictures of Ms. Segura’s
      injuries and those pictures show injuries to Ms. Segura’s face, eye,
      lip, and arm.

            7. On March 31, 2009, [Uribe] waived her Miranda rights and
      gave Officer Crociata and Officer Lee Noble verbal and written
      statements.

             8. On March 31, 2009, [Uribe] told officers:

             I beat her ass, I got on top of her and punched her, and
             couldn’t stop myself, I kicked her in the face. I then got
             up and grabbed a steak knife and wanted to scare her
             because I know she is terrified of them, and she went to
             grab it away and got cut.

            9. In her March 31, 2009 written statement, [Uribe] admitted
      she was “fed up” with rumors started by Ms. Segura so [Uribe]
      walked up to Ms. Segura, punched Ms. Segura “straight on the
      face,” “dropped her on the floor,” and continued to punch Ms.
      Segura in the face and pulled Ms. Segura’s hair. [Uribe] further
      admitted that she grabbed a knife to scare Ms. Segura and Ms.
      Segura was cut when Ms. Segura tried to push the knife out of
      [Uribe]’s hand.

            10. None of the evidence collected from the night of the
      assault suggests that Ms. Segura instigated the fight or threatened
      [Uribe].

      The trial court concluded that even if Uribe’s counsel was found to be

constitutionally deficient in his representation, Uribe had failed to show that there

was a reasonable probability that, but for his errors, she would not have pleaded

guilty because it would not have been rational under the circumstances when she

would have risked a harsher penalty with the same immigration consequences.

The trial court further concluded that rejecting the plea bargain would not have


                                         8
been rational because the evidence showed that Uribe had committed

aggravated assault with a deadly weapon and that if she had proceeded to trial,

“it is likely she would have been found guilty.” And it concluded that Uribe’s

claimed legal and factual defenses in her 2016 affidavit were not credible

considering the other evidence, including her signed confession from 2009; that

rejecting the plea bargain would not have been rational when Uribe did not state

that immigration consequences were her primary concern in 2009 when she was

facing up to twenty years in prison; and that Uribe had failed to show that the

State would have offered a different plea bargain that would have helped her

avoid negative immigration consequences.           The trial court further stated that

rejecting the plea bargain was not rational because if Uribe had taken the

aggravated-assault-with-a-deadly-weapon case to trial, she would not have been

eligible for probation from the judge11 and it was unlikely that she would have

received it from the jury in light of the facts.

      In making its conclusions, the trial court stated that it looked at the

following factors regarding whether it would have been rational for Uribe to reject

the plea bargain: evidence of her guilt; evidence of her factual or legal defenses;

whether she had presented evidence that her immigration status had been her

primary concern; her plea deal compared to the penalties she risked at trial;

      11
        See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp. 2016)
(providing that judge-ordered community supervision provisions do not apply to a
defendant when it is shown that a deadly weapon was used or exhibited during
the commission of a felony offense).


                                            9
whether she presented evidence that any other plea deal would have helped her

avoid negative immigration consequences; and whether she presented evidence

regarding the likelihood of obtaining probation if she had been convicted at trial. 12

                                  III. Discussion

      We did not request additional briefing in this case, see Tex. R. App. P.

31.1, and will review whether the habeas court abused its discretion by denying

Uribe’s application based on the ineffective-assistance-of-counsel ground she

presented in her application.

A. Standard of Review and Applicable Law

      As we have previously stated,

            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. 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. Such deference must be given to the trial
      court even when all the evidence is submitted by affidavits. The test
      for whether the trial court abused its discretion is whether its ruling
      was arbitrary or unreasonable. 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. 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.


      12
       The trial court cited Ex parte Murillo, 389 S.W.3d 922, 928–31 (Tex.
App.—Houston [14th Dist.] 2013, no pet.), abrogated on other grounds by
Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013), and Ex parte Fassi, 388
S.W.3d 881, 888–90 (Tex. App.—Houston [14th Dist.] 2012, no pet.), as the
source of these factors. We discuss these cases below.


                                         10
Ex parte Moreno, 382 S.W.3d 523, 526 (Tex. App.—Fort Worth 2012, pet. ref’d)

(citations omitted). The trial court is not required to accept an applicant’s factual

statements made in his or her affidavit. Id. at 528–29 (observing that when the

trial court weighs conflicting evidence, it must make a judgment call on the

evidence’s credibility).

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

guilty plea. Id. at 526 (citing Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366,

370–71 (1985); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App.

2010)); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984) (“Unless a defendant makes both showings [deficient performance

of counsel and prejudice], it cannot be said that the conviction . . . resulted from a

breakdown in the adversary process that renders the result unreliable.”). As

stated by our court of criminal appeals,

             An applicant for a post-conviction writ of habeas corpus bears
      the burden of proving his claim by a preponderance of the evidence.
      To demonstrate that he is entitled to post-conviction relief on the
      basis of ineffective assistance of counsel, an applicant must
      demonstrate that (1) counsel’s performance was deficient, in that it
      fell below an objective standard of reasonableness, and (2) the
      applicant was prejudiced as a result of counsel’s errors, in that, but
      for those errors, there is a reasonable probability of a different
      outcome. In the context of a collateral challenge to a guilty plea, the
      focus of the prejudice inquiry is on “whether counsel’s
      constitutionally ineffective performance affected the outcome of the
      plea process,” and on whether a defendant has shown that “but for
      counsel’s errors, he would not have pleaded guilty and would have
      insisted on going to trial.”




                                           11
Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (citations omitted). In

the Padilla context, when the prejudice prong of the Strickland test is dispositive,

we need address only that prong on appeal. Murillo, 389 S.W.3d at 927 (citing

Fassi, 388 S.W.3d at 887).

      The test for determining the validity of a plea is whether it represents a

voluntary and intelligent choice among alternative courses of action open to the

defendant.   Ex parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—Fort Worth

2009, pet. ref’d). To meet the burden under Strickland’s prejudice prong, the

applicant must convince the court that a decision to reject the plea bargain would

have been rational under the circumstances, but he need not show that he would

have received a more favorable outcome at trial. Johnson v. State, 169 S.W.3d

223, 231 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1181 (2006).13 The test

is objective and turns on what a reasonable person in the defendant’s shoes


      13
        The court of criminal appeals has explained that

      [i]n the ineffective assistance of counsel context, the narrowed
      prejudice inquiry is designed to ensure that the defendant would
      actually have availed himself of the proceeding in question, so that
      he really is in the same position as someone whose rights were
      denied by the trial court: “counsel’s deficient performance must
      actually cause the forfeiture [of the proceeding in question]. If the
      defendant cannot demonstrate that, but for counsel’s deficient
      performance, he would have [availed himself of that proceeding],
      counsel’s deficient performance has not deprived him of anything,
      and he is not entitled to relief.”

Johnson, 169 S.W.3d at 231–32 (quoting Roe v. Flores-Ortega, 528 U.S. 470,
484, 120 S. Ct. 1029, 1038 (2000)).


                                        12
would do. Ex parte Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012, pet.

ref’d).

          In determining whether a defendant would not have pleaded guilty but for

counsel’s deficient advice, we consider the circumstances surrounding the plea

and the gravity of the alleged failure material to that determination. Moreno, 382

S.W.3d at 528 (citing Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App.

1999)).

   1. Circumstances Surrounding the Plea

          In reaching its conclusion with regard to the voluntariness of Uribe’s plea,

the trial court listed factors developed by the Fourteenth Court of Appeals in

Murillo.      In Murillo, the Fourteenth Court cited our analysis in Moreno in

developing its list of factors. See 389 S.W.3d at 930 (citing Moreno, 382 S.W.3d

at 529).

          In Moreno, we affirmed the denial of habeas relief with regard to a lawful

permanent resident who had been indicted for two felonies—possession of

between four and 200 grams of cocaine, and possession of between four and

200 grams of cocaine with intent to deliver—and who pleaded guilty to the

possession charge in exchange for dismissal of the possession-with-intent-to-

deliver charge; he received eight years’ deferred adjudication community

supervision. 382 S.W.3d at 524. After DHS began removal proceedings based

on his possession “conviction,” Moreno alleged that he had received ineffective

assistance of counsel when he decided to plead guilty because if he had known


                                           13
he was certain to be deported because of his plea, he would not have pleaded

guilty or would have at least instructed his trial counsel to attempt to obtain a plea

bargain that would not have resulted in his automatic deportation. Id.

      Moreno’s former trial counsel stated in his affidavit that he had advised

Moreno about possible immigration problems, had suggested that he seek the

advice of an immigration attorney, and had given to Moreno the contact

information for an immigration attorney. Id. at 525. To his knowledge, Moreno

had never contacted the immigration lawyer. Id. He also stated that during plea

negotiations, the State never offered to recommend a punishment less than

incarceration and that at one point, the State had threatened to charge Moreno

with an even greater drug possession charge.          Id.   Regarding the charge’s

underlying facts, he stated that the police had seen Moreno place a brown paper

bag in a vehicle, which the police later discovered contained approximately 1.5

kilos of cocaine, and which the police used to obtain a search warrant for

Moreno’s home, where they found 60 grams of cocaine. Id. Moreno signed a

plea document that contained substantially similar language as Uribe’s: “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.” Id. at

525 n.5. The trial court found that both trial counsel and the trial court had

warned Moreno about the possible immigration consequences of his plea before

he made it and concluded that Moreno had failed, among other things, to carry


                                         14
his burden to show that he would not have pleaded guilty if his counsel had

informed him of the plea’s consequences. Id. at 525.

      We determined that the record supported the trial court’s findings,

particularly in light of the trial court’s role to make credibility determinations. Id.

at 528.   We held that the trial court could have rationally found, based on

Moreno’s apparent total inaction upon receiving repeated verbal and written

warnings about the possibility of his deportation, that his immigration status was

not his primary concern upon pleading guilty. Id. at 529. Additionally, based on

Moreno’s failure to offer any evidence showing that the State would have

considered a different plea bargain without the same immigration consequences,

there was little to support Moreno’s assertion that if he had known that he would

be deported for pleading guilty, he would have instructed his trial counsel to try

the case or to attempt to obtain a different plea bargain. Id. (observing that there

was no evidence that the State was willing to accept a plea bargain for anything

other than a controlled substance charge, which, under federal law, generally

leads to deportation).

   2. The Murillo Factors

      As cited by the trial court in its findings of fact and conclusions of law, in

Murillo, our sister court considered several factors regarding the circumstances

surrounding a defendant’s plea in light of the evidence presented to the habeas

court: (1) evidence of the applicant’s guilt; (2) whether the applicant presented

evidence of any factual or legal defenses to the charge; (3) whether the applicant


                                          15
presented evidence indicating that the immigration consequences of her plea had

been her “paramount concern”; and (4) the circumstances of the plea deal

compared to the penalties the applicant risked by going to trial. Murillo, 389

S.W.3d at 928–31. We have not formally adopted these factors in a published

opinion and now consider whether to do so.

      The applicant in Murillo, a lawful permanent resident who pleaded guilty to

the class A misdemeanor assault of his wife and received a year of deferred

adjudication and a fine, filed a habeas application in which he argued that he had

been denied effective assistance of counsel because his plea counsel had failed

to properly apprise him that he faced presumptively mandatory deportation as a

result of his guilty plea, thus rendering his plea involuntary under Padilla.14 Id. at

924. At the habeas hearing, the applicant testified that his defense attorney had

told him that he could be deported if he entered a guilty plea and that the trial

court had given him the same warning but that neither had definitely advised him

that he would be deported if he pleaded guilty. Id. at 925. The applicant claimed

that if he had been advised that he would be deported, he would not have


      14
         With regard to advice about the immigration consequences of a plea, the
nature of the advice to be given is dependent on the certainty of the applicable
immigration law. Padilla, 559 U.S. at 369, 130 S. Ct. at 1483. That is, when the
relevant immigration law is “not succinct and straightforward” as to whether a
plea will result in deportation, “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.[] But when the deportation consequence is
truly clear, as it was in [Padilla’s] case, the duty to give correct advice is equally
clear.” Id., 130 S. Ct. at 1483 (footnote omitted).


                                         16
pleaded guilty and would have insisted on going to trial. Id. His former defense

counsel testified that the offense report, included in his case file when she

advised him, indicated that the responding officer had seen the assault and

heard the woman screaming. Id. at 927–28.

                 a. Evidence of Applicant’s Guilt

       In the first factor, the Murillo court considered the strength of the State’s

case and evidence of the applicant’s guilt. Id. at 928; see Fassi, 388 S.W.3d at

888. The court noted that the denial of habeas relief based on lack of sufficient

prejudice is not an abuse of discretion when the evidence of the applicant’s guilt

is “overwhelming.”       389 S.W.3d at 928.    In developing this factor, the court

reviewed Fassi, one of its earlier cases. Id. In Fassi, the eighteen-year-old

resident alien was charged with possessing 2 ounces or less of marijuana, a

Class B misdemeanor for which he faced up to six months’ confinement and a

$2,000 fine and for which he actually received—pursuant to a plea bargain—six

months’ deferred adjudication community supervision and a $150 fine.            388

S.W.3d at 883. He subsequently complained that his counsel had not discussed

with him his plea’s immigration consequences. Id. at 884. The State responded

with affidavits from Fassi’s trial counsel and the arresting officer, and the court

held a hearing in which Fassi, trial counsel, and Fassi’s immigration attorney

testified. Id.

       In its findings, the trial court stated that counsel had advised Fassi about

potential negative immigration consequences and also that there was a waiver of


                                          17
deportation available in cases in which a defendant was convicted of a single

offense of possession of marijuana under 30 grams. Id. Fassi did not tell his

counsel that he had previously been convicted of possession of drug

paraphernalia. Id. Fassi made no showing that he ever questioned his attorney

at the time of the plea regarding any factors that might limit his deportation

consequences and presented no evidence that any alternative plea bargain was

available in his case that would have allowed him to avoid negative immigration

consequences. Id. The officer’s affidavit, found credible, reflected that when he

stopped Fassi for a traffic violation, Fassi smelled of marijuana, had flakes of it

on his shirt, and confessed to possessing marijuana. Id. at 884–85. The trial

court concluded that, in light of the overwhelming evidence of Fassi’s guilt, the

fact that Fassi did not allege or prove that any other plea bargain was available

that would have allowed him to avoid potentially negative immigration

consequences, and his failure to show any legal or factual defense to the

charged offense, Fassi failed to show that it would have been rational for him to

reject the plea bargain and proceed to trial. Id. at 885. Thus, Fassi showed no

prejudice. Id.

      Our sister court affirmed the trial court’s judgment, stating,

             The habeas court considered the “overwhelming” evidence of
      appellant’s guilt, the fact that he faced up to six months’ confinement
      and a $2,000 fine if convicted, the lack of evidence of any factual or
      legal defenses, and the lack of evidence that any other plea deal
      would have helped him avoid deportation. These factors suggest
      that a rational noncitizen defendant would likely not risk a trial if the
      result is near-certain conviction—under those circumstances, the


                                         18
      defendant faces a harsher criminal penalty in addition to the same
      immigration consequences of pleading guilty. . . .

            ....

              Further, although the Padilla Court recognized that deportation
      consequences are ‘sometimes the most important part’ of the
      penalty that may be imposed on noncitizens who plead guilty, this
      record contains no evidence indicating that immigration
      consequences were appellant’s paramount concern. . . . there is no
      evidence appellant expressed his concerns about deportation to the
      trial court, plea counsel, or anyone else at the time of his plea.

Id. at 888–89.

      With regard to evidence of the applicant’s guilt and comparing the plea

deal to the penalties risked at trial, the Murillo court also reviewed Ali, 368

S.W.3d at 840. Murillo, 389 S.W.3d at 928, 930. Ali, an alien, pleaded guilty to a

drug paraphernalia offense and received a suspended 180-day sentence and

twelve months of community supervision.        Ali, 368 S.W.3d at 829.      In the

subsequent habeas proceeding, the evidence before the court consisted of the

affidavits of Ali, his trial counsel, and a person who had been charged with a

similar offense and had been represented by the same counsel. Id. at 830, 832.

Ali claimed in his affidavit that he had told his counsel that he had a pending

application for permanent residency and that it was important that he not be

deported. Id. at 836. He claimed that his counsel never recommended to him

that he should contact an experienced immigration lawyer to help with his case

but instead advised him that if he accepted the plea offer, he would not face any

immigration problems. Id. Ali also claimed that he would not have pleaded guilty



                                        19
if he had known the immigration consequences because it would work a hardship

on his parents and his two younger brothers, who were legal permanent

residents, if he were removed. Id.

      Ali’s trial counsel stated in his affidavit that although he was very familiar

with his foreign clients’ immigration issues, he did not practice immigration law

and that he always told his clients to seek advice from immigration lawyers on

their immigration issues. Id. at 837. He stated that the State’s evidence, which

he had discussed with Ali, included the undercover officer’s audio and video

recordings of the transaction that led to the criminal charge, that Ali had

acknowledged that the evidence against him was overwhelming, and that it was

virtually certain that a jury would not believe his innocence. Id. at 837–38. He

stated that after viewing the videotape, Ali told him that he went to see his

immigration attorney. Id. at 838. He further opined that if Ali had gone to trial

and been convicted, he would have risked the same deportation consequences

but could also have been sentenced to up to a full year of actual jail time. Id. at

840. The other client’s affidavit stated that he had reviewed the evidence with Ali

and their trial counsel and that “[w]hile the case against [him] was weak, it was

obvious to [him] that the evidence against [Ali] was very strong,” and he

corroborated that Ali’s counsel had informed them about the immigration

problems they would have for any type of criminal conviction and suggested that

they should seek advice from their immigration attorneys. Id. at 839.




                                        20
      The trial court found that Ali’s counsel’s affidavit was a credible, reliable,

and accurate depiction of the events that had occurred, that the other client’s

affidavit corroborated those events, and that it specifically disbelieved the

allegations in Ali’s affidavit regarding counsel’s failure to communicate the

possibility of immigration consequences as a result of the plea. Id. The trial

court also noted that Ali had twice entered a guilty plea and, in light of the

benefits Ali had obtained by virtue of his plea bargain, that he had failed to show

that but for counsel’s perceived ineffectiveness, he would have insisted on a jury

trial. Id. at 838–39. The Austin court concluded that the trial court would not

have abused its discretion by disbelieving Ali’s sworn affidavit testimony that he

would have insisted on going to trial, and without credible evidence that Ali would

have insisted on trial had counsel advised him he would be deported if he

entered a guilty plea, it could not conclude that Ali had met his burden under

Strickland’s prejudice prong. Id. at 840–41.

      The Murillo court then distinguished cases in which the State presented no

rebuttal evidence as to the strength of its case or in which circumstances

indicated that the applicant had a defense to the charge. Murillo, 389 S.W.3d at

928–29 & n.2 (recognizing that the court had rejected the San Antonio and

Houston-First courts’ approach of accepting as true an applicant’s affidavit

statements without undertaking an analysis of whether the decision to reject a

plea bargain and instead go to trial was rational under the circumstances).




                                        21
            b. Evidence of Defenses to the Charged Offense

      In the second factor, the Murillo court identified defenses to the charged

offense as contributing to the determination of whether rejecting a plea bargain

would be rational. Id. at 929. It provided examples of situations in which an

applicant might claim lack of criminal intent, i.e., when he thought taking an item

was just a prank and that his friend intended to return it or when an applicant who

was charged with assaulting a police officer did not know that the person who

had approached him from behind was a police officer.15 Id.

            c. Consequences as “Paramount Concern”

      In the third factor, the Murillo court identified circumstances in which the

applicant either did or did not present evidence that the immigration

consequences of his plea had been his “paramount concern.” Referring back to

Fassi and citing Moreno, Murillo specifically examined whether the applicant

presented evidence that he had expressed his concern about deportation to the

trial court, plea counsel, or anyone else at the time of his plea or if he presented

other evidence tending to support that immigration consequences had been his

primary concern at that time. Murillo, 389 S.W.3d at 929–31 (citing Moreno, 382


      15
         Along with Fassi, the court reviewed Salazar v. State, 361 S.W.3d 99,
103 (Tex. App.—Eastland 2011, no pet.) (prank), and Ex parte Olvera, 394
S.W.3d 572, 576–77 (Tex. App.—Dallas 2012) (noting that the officer testified
that when arrested, Olvera said “I didn’t know you were the police”), rev’d on
other grounds, No. PD-1215-12, 2013 WL 1149926, at *1 (Tex. Crim. App. Mar.
20, 2013), in considering evidence of the applicant’s factual or legal defenses.
Murillo, 389 S.W.3d at 929.


                                        22
S.W.3d at 529).    The Murillo court also reviewed Ex parte Elizondo-Vasquez, a

case involving a second-degree felony marijuana possession charge that was

plea-bargained for a twelve-year sentence. Id. at 929–30 (discussing Ex parte

Elizondo-Vasquez, 361 S.W.3d 120, 121, 122–23 (Tex. App.—Texarkana 2011,

no pet.)). In Elizondo-Vasquez, the appellant argued that his trial counsel had

not advised him that his guilty plea would (not just could) result in his deportation.

361 S.W.3d at 121. At the hearing on his motion for new trial, the appellant’s trial

counsel confirmed that the appellant’s primary concern had been how the charge

and any resulting incarceration would impact his immigration status. Id. Counsel

testified that he never gave the appellant a definitive answer regarding his status

and, rather than conducting the legal research that would have revealed that

deportation is mandatory upon conviction for possession of a large quantity of

marijuana, that he had advised the appellant to consult an immigration lawyer.

Id. On these facts, the court held that due to counsel’s ineffective assistance, the

appellant’s guilty plea was involuntary, and it reversed the conviction and

remanded the case to the trial court. Id. at 123.

             d. Risk Assessment of Plea Deal versus Trial Penalties

      Finally, in the fourth factor, the Murillo court observed that while the inquiry

is not whether the applicant would have received a more favorable disposition at

trial, a reviewing court could properly consider evidence concerning the likelihood

of success at trial when determining whether it would be rational to reject a plea

bargain. 389 S.W.3d at 930. Additionally, Murillo held that a reviewing court


                                         23
could consider whether the applicant presented evidence that any other plea deal

would have helped him avoid negative immigration consequences, as well as

whether the applicant presented evidence regarding the likelihood of obtaining

probation if convicted at trial.   Id.   The court considered Fassi, Ali, and our

analysis in Moreno in developing this factor. Id. at 930–31.

      The Murillo court indicated that the factor test should apply when, as here,

the record is more than “marginally developed regarding the alleged prejudice.”

See id. at 928 (referencing Aguilar v. State, 375 S.W.3d 518, 526 (Tex. App.—

Houston [14th Dist.] 2012), rev’d on other grounds, 393 S.W.3d 787, 788 (Tex.

Crim. App. 2013)).16 We conclude that the factors that the Murillo court derived

from case law present a helpful, nonexclusive list of considerations to facilitate

the determination of whether a guilty plea is involuntary in light of sufficient

evidence presented to a habeas court to support such a determination, and we

hereby adopt the factors.17


      16
         In Aguilar, the applicant did not provide live testimony or any specific
evidence regarding the rationality of rejecting a plea bargain under the
circumstances, apparently relying solely on his stance, as expressed in his
affidavit, that he would have rejected the plea because residence in the United
States was of paramount importance to him. Aguilar, 375 S.W.3d at 526. In
contrast, here, although Uribe did not provide live testimony, she presented a
detailed affidavit and the State rebutted her affidavit with substantial
controverting evidence.
      17
        This factor test is nonexclusive and some of the factors may not fit in
every circumstance. For example, a “conviction” that can make an alien
deportable under the immigration and nationality act includes deferred
adjudication, so the availability of probation may be irrelevant in some cases.
See 8 U.S.C.A. § 1101(a)(48)(A)(i)–(ii) (West 2005) (stating that “conviction”

                                          24
B. Application

        In the trial court, Uribe argued that “because she spent over 180 days in

jail,” she was precluded from establishing the good moral character necessary to

be eligible for cancellation of removal. See 8 U.S.C.A. § 1101(f)(7), 1229b(b)(1).

She referred the trial court to her former immigration attorney’s affidavit stating

that he did not tell Uribe’s criminal defense attorney that confinement for more

than 180 days as a result of a conviction would proscribe her ability to show that

she was a person of good moral character under § 1101(f)(7),18 claiming that she

would have proceeded to trial if she had known the true consequences of her

plea.

        The State responded that even if Uribe’s counsel had been constitutionally

deficient in his representation, Uribe had failed to show that there was a

reasonable probability that, but for his errors, she would not have pleaded guilty.

The State argues that it would not have been rational for her to proceed to trial—

and face an even harsher penalty with the same immigration consequences—



means a formal judgment of the alien’s guilt entered by a court or, if adjudication
of guilt has been withheld, a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has admitted sufficient facts to
warrant a finding of guilt and the judge has ordered the imposition of some form
of punishment, penalty, or restraint on the alien’s liberty); Murillo, 389 S.W.3d at
924 (observing that Murillo pleaded guilty to misdemeanor assault, received one
year of deferred adjudication and a fine as punishment, and was ordered
deported “based on his conviction for assault of a family member”).
        18
       Because we resolve this issue on the prejudice prong, we will not
address deficiency of counsel. See Murillo, 389 S.W.3d at 927.


                                        25
instead of pleading guilty for a shorter sentence.       Referencing the evidence

attached to its response, including Uribe’s signed written statement, which,

according to the State showed that she had committed aggravated assault with a

deadly weapon, the State points out that “had she proceeded to trial it is likely

she would have been found guilty” and sentenced to up to twenty years in prison

instead of only 270 days.19 The State also relies upon Uribe’s affidavit, which


      19
         As set out above, 8 U.S.C. § 1229b(b) requires that, in addition to good
moral character, the alien not be convicted of an offense under §§ 1182(a)(2),
1227(a)(2), or 1227(a)(3). 8 U.S.C.A. § 1229b(b). 8 U.S.C. § 1227(a) lists
criminal offenses that make an alien deportable, including offenses classified as
“aggravated felon[ies].”        Id. § 1227(a)(2)(A)(iii) (West 2005).        8 U.S.C.
§ 1101(f)(8) provides that no person shall be regarded as or found to be a person
of good moral character if, during the time period for which good moral character
is required to be established, he or she is or was “one who at any time has been
convicted of an aggravated felony (as defined in subsection (a)(43) of this
section).” Id. § 1101(f)(8) (West 2005 & Supp. 2016). “Aggravated felony” is
defined as, among other things, a “crime of violence (as defined in section 16 of
Title 18 . . .) for which the term of imprisonment [is] at least one year” and which
applies to an offense in violation of either state or federal law.                 Id.
§ 1101(a)(43)(F) (West 2005 & Supp. 2016). Section 16 of Title 18 defines
“crime of violence” to mean either an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or property
of another or “any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of another may
be used in the course of committing the offense.” 18 U.S.C.A. § 16 (West 2015).
As set out above, Uribe’s offense, as alleged in the indictment, was for
aggravated assault with a deadly weapon, a second-degree felony with a
punishment range of two to twenty years’ confinement.

      8 U.S.C. § 1227(a) also lists conviction of a crime involving moral turpitude
committed within 5 years after the date of admission for which a sentence of one
year or longer may be imposed as resulting in deportability, 8 U.S.C.A.
§ 1227(a)(2)(A)(i), and misdemeanor assault can be, but is not necessarily,
considered a crime involving moral turpitude. See, e.g., Guerra v. State, No. 01-
15-00650-CR, 2016 WL 6212999, at *10 (Tex. App.—Houston [1st Dist.] Oct. 25,
2016, no pet.) (mem. op., not designated for publication) (listing cases that have

                                         26
fails to assert that immigration consequences were her primary concern in 2009

when she was facing up to twenty years’ confinement.

      The trial court here made explicit findings and conclusions on reasonable

grounds concerning Uribe’s failure to prove prejudice. The court’s rulings are

supported by the evidence of Uribe’s guilt not just of a lesser-included offense

but also the greater aggravated-assault-with-a-deadly-weapon charge, for which

she faced a sentence of up to twenty years and for which, if she were convicted,

would have also resulted in her deportability. Additionally, the trial court was

entitled to disbelieve Uribe’s self-defense claims in her affidavit.    And, as in

Moreno, the record here does not reflect that the State would have been willing

to accept a plea bargain for a different offense or to further negotiate for a plea

that would have fewer negative immigration consequences. See 382 S.W.3d at

529–30. Even though Uribe or her criminal defense counsel consulted outside

immigration counsel, which constitutes some evidence that her plea’s

immigration consequences were of some concern to Uribe, we cannot conclude

on this record that the trial court lacked the authority or a reasonable basis under

the facts of this case to make the judgment call that Uribe had failed to prove by


held that assault-family violence is a crime involving moral turpitude but
specifically identifying the ones involving male-on-female violence); see also
Lazaro v. Holder, 390 Fed. App’x. 319, 321 (5th Cir. 2010) (stating that Texas’s
penal code section 22.01, which criminalizes assault, “encompasses acts that
both are and are not crimes of moral turpitude,” requiring a review of the record
of conviction to determine the offense’s status), cert. denied, 562 U.S. 1153
(2011). Uribe’s plea bargain included a waiver of a family violence finding.


                                        27
a preponderance of the evidence that she would not have pleaded guilty but for

her former immigration counsel’s advice.

      Because the trial court’s findings and conclusions are supported by the

record, we must defer to those rulings. See id. at 530. Therefore, we conclude

that the trial court did not abuse its discretion by denying the relief requested in

Uribe’s application for a writ of habeas corpus, and we overrule her sole issue as

it was presented in the trial court.

                                   IV. Conclusion

      Having overruled Uribe’s sole issue presented in the trial court, we affirm

the trial court’s judgment denying Uribe’s application for writ of habeas corpus.



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER AND SUDDERTH, JJ.

WALKER, J., concurs without opinion.

PUBLISH

DELIVERED: March 9, 2017




                                        28
