Opinion issued November 19, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00723-CR
                            ———————————
                   EX PARTE JAVIER CASTRO, Appellant



           On Appeal from the County Criminal Court at Law No. 6
                            Harris County, Texas
                        Trial Court Case No. 1966885


                          MEMORANDUM OPINION

      Javier Castro appeals the county criminal court at law’s denial of his

application for a writ of habeas corpus. See TEX. CODE CRIM. PROC. art. 11.09.

Castro challenges his conviction for misdemeanor prostitution on the grounds that

his initial guilty plea was not voluntary and that he received ineffective assistance

of counsel.
       Finding no abuse of discretion, we affirm the judgment.

                                   Background

       Javier Castro is a citizen of Mexico who has been legally residing in the

United States since 1981. While he has taken some English lessons, he still neither

speaks nor writes English well.

       In 1997, Castro was arrested and charged with misdemeanor solicitation of

prostitution. The police report from the incident states that Castro solicited sex

from an undercover officer, forcefully spreading her legs apart and giving her $20

as payment. Castro claimed in a sworn affidavit that he did not solicit the officer,

and instead he merely gave her a few dollars to buy cigarettes. As he did not

understand English well, he asserted that he did not understand the circumstances

of his arrest.

       Castro was represented in the original trial proceedings by attorney John

Stephen Liles. Castro claims that Liles did not discuss the police report with him,

did not explain the relevant law, and did not inform him about the State’s burden to

prove the charges beyond a reasonable doubt. He asserts that Liles told him to

plead guilty without telling him that he had the right to a jury trial or fully

explaining the plea agreement. Castro claims that if he had known about the police

report and burden of proof, he would not have pleaded guilty, and he would have

proceeded to trial instead. Liles filed an affidavit declaring that he did not



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remember anything about the case, but that he spoke Spanish and typically would

explain the charges, review the offense report, and advise clients as to the

admonishments in any plea agreement.

      In 2004, Castro applied for permanent United States residency. His

application was denied in 2007 because he had three prior misdemeanors—two

offenses of water pollution and one of prostitution. See 8 C.F.R. § 245a.18(a)

(stating that an alien convicted of three or more misdemeanors is ineligible for

permanent residency). In 2014, Castro filed a habeas petition in the County

Criminal Court at Law No. 6 of Harris County, claiming that his conviction

subsequent to the guilty plea illegally restrained his liberty because he was denied

permanent residency. Castro presented affidavits from his then-girlfriend and his

long-time friend to support his assertions that he was not properly advised as to the

law and that he would not have pleaded guilty because he did not commit the

alleged acts.

      The County Court at Law denied the writ without findings of fact or

conclusions of law. Castro appealed.

                                       Analysis

I.    Jurisdiction

      As a preliminary matter, we consider whether the trial court had jurisdiction

to hear Castro’s application for a writ of habeas corpus. Article 11.09 of the Texas



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Code of Criminal Procedure allows a party confined on a misdemeanor charge to

apply for habeas relief to “the county judge of the county in which the

misdemeanor [was] charged to have been committed.” TEX. CODE CRIM. PROC. art.

11.09. A county court may issue a writ of habeas corpus “in any case in which the

constitution has not conferred the power on the district courts.” TEX. GOV’T CODE

§ 26.047(a); see also Ex parte Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App.

2003). The Court of Criminal Appeals has stated that the term “confined” in

Article 11.09 does not require actual current imprisonment and that the county

courts can have habeas jurisdiction if a person is merely restrained due to the

conviction. Schmidt, 109 S.W.3d at 482–83.

      In State v. Collazo, 264 S.W.3d 121 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d), this court held that the confinement standard includes a defendant who

is “no longer confined, but is subject to collateral legal consequences resulting

from the conviction.” Collazo, 24 S.W.3d at 125–26. Collazo dealt with a

defendant who pleaded guilty to a misdemeanor burglary charge. Id. at 125. He

later attempted to obtain a Texas peace officer license but was denied due to the

prior misdemeanor. Id. Arguing that his plea was involuntary, he sought a habeas

writ. Id. This court held that because he was denied the opportunity to obtain a

Texas peace officer license, he was “restrained” to an extent that would satisfy the




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confinement standard and provide the trial court with jurisdiction to hear his

petition. Id. at 126–27.

      The Fourteenth Court of Appeals has applied the confinement standard in

the immigration context. In Phuong Anh Thi Le v. State, 300 S.W.3d 324 (Tex.

App.—Houston [14th Dist.] 2009, no pet.), an immigrant challenged two

misdemeanor convictions for theft after her detainment by U.S. Immigration and

Customs Enforcement. Id. at 325. The court of appeals concluded that the trial

court had jurisdiction despite the fact that the immigrant was not then in the

custody of the State of Texas, because her pending deportation was “based solely

on her Texas misdemeanor convictions.” Id. at 326. While the trial court could not

order her release from custody, it could address the habeas challenges and her

allegations of ineffective assistance of counsel. Id. at 326–27.

      Castro similarly faces collateral legal consequences arising from his prior

misdemeanor convictions. While Castro is not being detained, the denial of his

application for permanent residency is a restraint on personal liberty much like the

denial of a peace-officer license in Collazo. See Collazo, 264 S.W.3d at 126–27.

As in Le, the county court at law did not have authority to change Castro’s

immigration status, but it could address his claims of ineffective assistance of

counsel in his petition for writ of habeas corpus. The county court at law had

jurisdiction to hear Castro’s habeas corpus petition. See Le, 300 S.W.3d at 326–27.



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Because the county court at law had jurisdiction over the petition and decided it on

the merits, this court has appellate jurisdiction. See TEX. R. APP. P. 31; see also

Schmidt, 109 S.W.3d at 482.

II.   Review of denial of habeas relief

      Having confirmed our jurisdiction over this appeal, we review the judgment

of the trial court. “An appellate court reviewing a trial court’s ruling on a habeas

claim must review the record evidence in the light most favorable to the trial

court’s ruling and must uphold that ruling absent an abuse of discretion.” Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). A reviewing court must

“defer to the trial court’s implied factual findings that are supported by the record,

even when no witnesses testify and all of the evidence is submitted in written

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

The appellate court must “sustain the lower court’s ruling if it is reasonably

supported by the record and is correct on any theory of law applicable to the case.”

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

      “An applicant seeking habeas corpus relief on the basis of an involuntary

guilty plea must prove his claim by a preponderance of the evidence.” Kniatt, 206

S.W.3d at 664. A claim of ineffective assistance of counsel must also be

established by a preponderance of the evidence. Robertson v. State, 187 S.W.3d

475, 483 (Tex. Crim. App. 2006).



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      A guilty plea constitutes a waiver of three constitutional rights: the right to a

jury trial, the right to confront one’s accusers, and the right not to incriminate

oneself. Kniatt, 206 S.W.3d at 664; Collazo, 264 S.W.3d at 127. As a result, a

guilty plea must be entered knowingly, intelligently, and voluntarily in order to

comport with due process of law. Kniatt, 206 S.W.3d at 664 (citing Brady v.

United States, 397 U.S. 742, 755, 90 S. Ct. 1463 (1970), and Boykin v. Alabama,

395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969)). A plea generally is considered

voluntary if the defendant was made fully aware of the direct, nonpunitive

consequences of the plea. Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim.

App. 2006); Collazo, 264 S.W.3d at 127.

      To prove a claim of ineffective assistance of counsel, an applicant must

show that (1) trial counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that but for counsel’s

unreasonable error, the result of the proceedings would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The

Strickland test is judged by the “totality of the representation” rather than by

isolated acts or omissions of counsel. Labib v. State, 239 S.W.3d 322, 333 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (citing Butler v. State, 716 S.W.2d 48, 54

(Tex. Crim. App. 1986)). There is a strong presumption that counsel’s performance



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falls within the wide range of reasonable professional assistance. See Robertson,

187 S.W.3d at 482–83.

      Applying the Strickland factors to the voluntariness analysis, if a defendant

claims that his plea was involuntary due to ineffective assistance of counsel, the

defendant must show “(1) that counsel’s advice was outside the range of

competency demanded of attorneys in criminal cases and (2) that, but for counsel’s

erroneous advice, the defendant would not have pleaded guilty and would instead

have gone to trial.” Labib, 239 S.W.3d at 333 (citing Ex parte Moody, 991 S.W.2d

856, 857–58 (Tex. Crim. App. 1999)).

      Castro claims that Liles did not inform him of the police report’s contents or

the State’s burden of proof. Liles’s affidavit, in contrast, states that he typically

discussed the offense report and the option of going to trial with his clients. Castro

did not include a copy of the plea agreement that he signed in his application, nor

did he explain his failure to include it. Accordingly, the record does not

demonstrate whether he received the necessary admonishments before signing his

plea agreement. However, Liles stated that he would generally review the

admonishments in the plea papers when advising his clients on the rights they were

relinquishing as part of a plea bargain.

      It is a habeas applicant’s responsibility to bring a complete record before the

court that proves he is entitled to relief by the preponderance of the evidence. See



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Ex Parte McKeand, 454 S.W.3d 52, 54 (Tex. App.—Houston [1st Dist.] 2014, no

pet.). Castro neither brought forward a signed plea agreement nor explained its

absence, and the trial court was allowed to draw conclusions from the incomplete

record brought before it. See id. Given the contradictory affidavits, the trial court

as factfinder was entitled to rely on Liles’s affidavit rather than believe Castro’s

assertions.   Based on Liles’s affidavit, the county court could find that Liles

assisted Castro with his standard degree of care, and that Castro received the

required admonishments that accompany a plea agreement. Liles’s affidavit

supports the county court’s implied findings that he provided effective assistance,

that Castro received the admonishments accompanying a plea deal, and that

Castro’s guilty plea was knowing and voluntary as a result. Deferring to these

findings, Castro was not entitled to relief, as he did not prove Strickland’s

requirement that his counsel was outside the required range of competency.

      Viewing the evidence in the light most favorable to the trial court’s ruling

and deferring to all of the trial court’s implied factual findings that are supported

by the record, we find that the county court did not abuse its discretion by denying

Castro a writ of habeas corpus. See Kniatt, 206 S.W.3d at 664; Wheeler, 203

S.W.3d at 325–26. Accordingly, we affirm.




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                                   Conclusion

      We affirm the judgment.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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