                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00756-CR

                                   EX PARTE UGONNA NWOGU

                      From the County Court at Law No. 4, Bexar County, Texas
                                       Trial Court No. 2536
                         Honorable Sarah Garrahan-Moulder, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: January 29, 2014

AFFIRMED

           This is an accelerated appeal from the denial of appellant’s application for a writ of habeas

corpus in which she asked the trial court to overturn her conviction and sentence for theft by check

and allow further proceedings in the trial court. She also asked that she be released from

confinement. The basis of her application is that she received ineffective assistance of counsel

because counsel did not properly advise her of the immigration consequences of her plea and the

trial court failed to properly admonish her regarding immigration consequences. We affirm.

                                            BACKGROUND

           Appellant was born in Imo State, Owerri, Nigeria on March 11, 1988. When she was

seventeen years old, she immigrated with her parents to the United States. Since her arrival, she
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has lived with her mother in San Antonio, Texas. Appellant is a permanent resident and holds a

Green Card.

       In February 2008, appellant pled nolo contendere to theft, and she received and completed

six month’s deferred adjudication. In July 2011, appellant pled nolo contendere to theft by check

and was sentenced to ninety days’ confinement and fined $200.00. Her sentence was probated and

she was placed on six months’ community supervision. In July 2013, United States Immigration

and Customs Enforcement Agents arrested appellant for deportation because her two prior offenses

involved moral turpitude and did not arise out of a single scheme of criminal misconduct.

Appellant then filed her application for writ of habeas corpus pursuant to Texas Code of Criminal

Procedure 11.072.

       No hearing was conducted on appellant’s application; however, she attached her affidavit

and other exhibits to the application. In her affidavit, appellant alleged that prior to her 2011 plea,

she informed her trial counsel that she was a legal resident and held a Green Card, but her attorney

did not inform her about the immigration consequences of her plea. She also alleged neither her

trial counsel nor the trial court properly admonished her that she would be deported or subject to

deportation, or that her permanent residency status would be in jeopardy. Appellant contends that

had she known of these consequences, she would not have pled nolo contendere.

                                           DISCUSSION

       When reviewing the trial court’s denial of an application for writ of habeas corpus under

Texas Code of Criminal Procedure article 11.072, we view the facts in the light most favorable to

the trial court’s ruling and uphold that ruling absent an abuse of discretion. See Ex parte Wheeler,

203 S.W.3d 317, 324 (Tex. Crim. App. 2006). A trial court is not required to conduct an

evidentiary hearing before ruling on an appellant’s writ application. See TEX. CODE CRIM. PROC.

ANN. art. 11.072 § 6(b) (West Supp. 2013) (allowing trial court in ruling on writ to order affidavits,
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depositions, interrogatories, or a hearing, or to rely upon court’s own personal recollection of

events). Instead, the trial court may forego a hearing and rely upon affidavits in making its

determination. Id.; Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no

pet.). However, the burden remains on an applicant to prove facts by a preponderance of the

evidence that she is entitled to relief. Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App.

1995). The trial court is the exclusive judge of the credibility of the witnesses. Ex parte Mowbray,

943 S.W.2d 461, 465 (Tex. Crim. App. 1996). This standard is true even when the evidence is

submitted by affidavit. Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002).

        In Padilla v. Kentucky, the U.S. Supreme Court held that “counsel must inform [his] client

whether his plea carries a risk of deportation.” 559 U.S. 356, 374 (2010). Counsel’s performance

is deficient under the Strickland standard if counsel fails to advise a noncitizen client about

deportation consequences that are “truly clear.” Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—

Houston [14th Dist.] 2012, no pet.) (citing Padilla, 559 U.S. at 368-69). The Texas Code of

Criminal Procedure requires a trial court, prior to accepting a plea of guilty or nolo contendere, to

admonish a defendant of “the fact that if the defendant is 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 . . . .”

TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4). In this case, appellant contends both Padilla and

article 26.13(a)(4) were violated.

        In addition to her affidavit, the only other evidence attached to appellant’s writ application

were the records from her 2008 plea and the transcript of the hearing from her 2011 plea. At the

plea hearing, the trial court stated as follows:




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           I also need to be assured that each 1 of you have been told . . . that if you’re not
           citizens of the United States, a plea of guilty or nolo contendere could result in you
           being deported, could result in you not being able to reenter the United States or it
           could result in you not being able to be naturalized under the laws of the United
           States. Do you both understand?

           Appellant replied “Yes, Your Honor.”

           None of the written admonishments from the 2011 plea were attached as exhibits to

appellant’s application, and they are not otherwise contained in the record on appeal. However, it

is clear from the transcript of the hearing that the trial court had certain documents before it

because, after the above admonishment, the court stated: “I’m going to show you these documents.

They take up those rights and [I’m going to] ask you is that your signature right there at the top?”

Appellant replied, “Yes, ma’am.”

           The judge who presided over appellant’s 2011 plea hearing is the same judge who denied

appellant’s writ application. In the order denying the application, the judge stated “no hearing is

necessary” and “after reviewing [appellant’s] writ and relying on the Court’s recollection, the

Court finds from the face of the writ, that [appellant] is manifestly entitled to no relief.” As the

exclusive judge of a witness’s credibility, the trial court was not required to believe appellant’s

allegations that her attorney failed to properly admonish her, and we must defer to the trial court’s

implied findings that appellant was properly advised and the holding in Padilla was not violated.

We also conclude the trial court’s verbal admonishment complies with Texas Code of Criminal

Procedure article 26.13(a)(4); therefore appellant was properly admonished by the trial court prior

to the court accepting her plea.




1
    The trial court had appellant and another defendant before it during the hearing.

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                                        CONCLUSION

       Based upon this record, appellant failed to prove facts by a preponderance of the evidence

that she was entitled to relief. Therefore, we must conclude the trial court did not abuse its

discretion when it denied appellant’s application for writ of habeas corpus.



                                                 Sandee Bryan Marion, Justice

Do not publish




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