                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00063-CR

                        EX PARTE VICENTE GODINEZ



                           From the 18th District Court
                             Johnson County, Texas
                             Trial Court No. F46393A


                          MEMORANDUM OPINION


      In two issues, appellant, Vicente Godinez, argues that: (1) the trial judge abused

his discretion by failing to conduct an evidentiary hearing on his application for writ of

habeas corpus; and (2) his trial counsel was ineffective. We affirm.

                                     I.     BACKGROUND

      On May 24, 2012, appellant was charged by indictment for tampering with a

governmental record, a third-degree felony. See TEX. PENAL CODE ANN. § 37.10(a)(6),

(d)(2) (West Supp. 2013). Pursuant to an agreement with the State, appellant pleaded

guilty to the charged offense. The trial court accepted appellant’s guilty plea, deferred
adjudication, and placed appellant on community supervision for five years with a $500

fine.

        On January 3, 2013, appellant filed an application for writ of habeas corpus

pursuant to article 11.072 of the Texas Code of Criminal Procedure, arguing that his

guilty plea was not voluntary because his trial counsel did not inform him of the

Deferred Action for Childhood Arrivals (“DACA”) program—enacted on June 15,

2012—designed to help aliens who were brought to the United States as children

achieve citizenship. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West Supp. 2013).

Appellant also asserted that he is currently detained by United States Immigration and

Customs Enforcement and subject to deportation and that he would have qualified for

the DACA program but for his guilty plea.

        On February 1, 2013, the trial court denied appellant’s habeas-corpus application

without a hearing. In its order, the trial court stated that appellant “is manifestly

entitled to no relief”; however, it did not specify that appellant’s habeas-corpus

application was denied as frivolous. Pursuant to an abatement order issued by this

Court, the trial court entered an amended order, whereby the trial court denied

appellant’s habeas-corpus application as frivolous. This appeal followed.

                       II.    APPELLANT’S HABEAS-CORPUS APPLICATION

        In his first issue, appellant argues that the trial judge abused his discretion by

failing to conduct an evidentiary hearing on his article 11.072 application for writ of

habeas corpus. We disagree.




Ex parte Godinez                                                                    Page 2
       We review a trial court’s decision to grant or deny an evidentiary hearing on an

article 11.072 habeas-corpus application under an abuse-of-discretion standard. See Ex

parte Gonzalez, 323 S.W.3d 557, 558 (Tex. App.—Waco 2010, pet. ref’d); Ex parte

Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.); see also Ex parte

Gonzales, No. 13-11-00135-CR, 2012 Tex. App. LEXIS 5846, at **3-4 (Tex. App.—Corpus

Christi July 19, 2012, pet. ref’d) (mem. op., not designated for publication). To prevail

on a writ of habeas corpus, an applicant must prove his allegations by a preponderance

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

Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam).

       Article 11.072 of the Texas Code of Criminal Procedure provides the process for

habeas-corpus applications, wherein the applicant is seeking relief from an order or

judgment of conviction ordering community supervision, as is the case here. TEX. CODE

CRIM. PROC. ANN. art. 11.072, § 1; see Ex parte Cummins, 169 S.W.3d at 756. The relevant

statutory provisions are as follows:

       Sec. 6. (a) Not later than the 60th day after the day on which the state’s
       answer is filed, the trial court shall enter a written order granting or
       denying the relief sought in the application.

       (b) In making its determination, the court may order affidavits,
       depositions, interrogatories[,] or a hearing, and may rely on the court’s
       personal recollection.

               ...

       Sec. 7. (a) If the court determines from the face of the application or
       documents attached to the application that the applicant is manifestly
       entitled to no relief, the court shall enter a written order denying the
       application as frivolous. In any other case, the court shall enter a written


Ex parte Godinez                                                                      Page 3
       order including findings of fact and conclusions of law. The court may
       require the prevailing party to submit a proposed order. . . .

TEX. CODE CRIM. PROC. ANN. art. 11.072, §§ 6-7.

       Although appellant argues that he was entitled to an evidentiary hearing,

nothing in article 11.072 requires the trial court to conduct a hearing before rendering its

decision on the habeas-corpus relief sought. See id. art. 11.072, § 6; Ex parte Gonzalez, 323

S.W.3d at 558 (stating that nothing in article 11.072 required the trial court to conduct a

hearing on appellant’s habeas-corpus application); Ex parte Franklin, 310 S.W.3d 918,

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

hold an oral hearing when determining whether to deny an article 11.072 application

for writ of habeas corpus alleging ineffective assistance of counsel); Ex parte Cummins,

169 S.W.3d at 757 (holding that nothing in article 11.072 required the trial court to hear

evidence and allow appellant to cross-examine former trial counsel in an application for

writ of habeas corpus alleging ineffective assistance); see also Ex parte Faulkner, No. 09-

05-478-CR, 2006 Tex. App. LEXIS 9486, at *8 (Tex. App.—Beaumont 2006, pet. ref’d)

(mem. op., not designated for publication) (stating that the decision to conduct a

hearing on an article 11.072 application is entirely discretionary).

       Article 26.13 of the Texas Code of Criminal Procedure requires a trial court to

admonish a defendant, either orally or in writing, before accepting a guilty plea. See

TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (West Supp. 2013).            When a trial court

substantially complies with article 26.13, it creates a prima facie showing that the

defendant’s guilty plea was entered knowingly and voluntarily. See Hughes v. State, 833


Ex parte Godinez                                                                       Page 4
S.W.2d 137, 140 (Tex. Crim. App. 1992); see also Grays v. State, 888 S.W.2d 876, 878 (Tex.

App.—Dallas 1994, no pet.).              In the instant case, appellant was admonished in

accordance with article 26.13, which therefore created a presumption that appellant’s

guilty plea was entered knowingly and voluntarily. See TEX. CODE CRIM. PROC. ANN.

art. 26.13(a); see also Hughes, 833 S.W.2d at 140; Grays, 888 S.W.2d at 878.

        Based on the information before the trial judge, including his own recollection of

the case, and the presumption that appellant’s guilty plea was knowing and voluntary,

we conclude that the trial judge could properly dispose of appellant’s ineffective-

assistance-of-counsel claim without holding an evidentiary hearing. See TEX. CODE

CRIM. PROC. ANN. arts. 11.072, § 6, 26.13; Ex parte Gonzalez, 323 S.W.3d at 558; Ex parte

Franklin, 310 S.W.3d at 922-23; Ex parte Cummins, 169 S.W.3d at 757; see also Ex parte

Faulkner, 2006 Tex. App. LEXIS 9486, at *8. As such, we cannot say that the trial judge

abused his discretion in deciding appellant’s habeas-corpus claim without an

evidentiary hearing.1 See Ex parte Gonzalez, 323 S.W.3d at 558; Ex parte Cummins, 169




        1 Our records reflect that counsel filed three separate motions to abate, asserting the same

argument: that the trial judge was obligated to issue findings of fact and conclusions of law supporting
his denial of appellant’s application for writ of habeas corpus as frivolous. Each time, we denied
appellant’s motion based on Texas Code of Criminal Procedure 11.072, section 7(a), which provides that:

        If the court determines from the face of the application or documents attached to the
        application that the applicant is manifestly entitled to no relief, the court shall enter a
        written order denying the application as frivolous. In any other case, the court shall enter a
        written order including findings of fact and conclusions of law.

TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a) (West Supp. 2013) (emphasis added). Essentially, because
the trial judge denied appellant’s habeas-corpus application as frivolous, he was not required to issue
findings of fact and conclusions of law. See id. Nevertheless, in his brief, appellant’s counsel asserts the
same argument for a fourth time and requests an abatement of this case. As we have done the three times
before, we deny appellant’s abatement request for the reason expressed above. See id.

Ex parte Godinez                                                                                         Page 5
S.W.3d at 757; see also Ex parte Gonzales, 2012 Tex. App. LEXIS 5846, at **3-4. We

therefore overrule appellant’s first issue.

                                   III.   ASSISTANCE OF COUNSEL

       In his second issue, appellant contends that his trial counsel rendered ineffective

assistance because he did not advise his noncitizen client of the deportation

consequences of his guilty plea.

A.     Standard of Review

       A plea of guilty is not voluntary if it was made as a result of ineffective assistance

of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012). To obtain

habeas-corpus relief on the ground of ineffective assistance of counsel, appellant must

show: (1) counsel’s performance fell below an objective standard of reasonableness;

and (2) a reasonable probability exists that, but for counsel’s errors, the result would

have been different. See Padilla v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 1482, 176

L. Ed. 2d 284 (2010); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-

65, 80 L. Ed. 2d 674 (1984). A defendant has the right to effective assistance of counsel

during plea proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App.

2010). In the context of a complaint about counsel’s plea advice, appellant must show:

(1) counsel’s plea advice did not fall within the range of competence demanded of

attorneys in criminal cases; and (2) there is a reasonable probability that, but for

counsel’s deficient performance, appellant would have insisted on going to trial rather

than accepting the offer and pleading guilty. Id.



Ex parte Godinez                                                                       Page 6
       To satisfy his burden under the first prong of the test, appellant must overcome

the strong presumption that counsel’s performance fell within the wide range of

reasonable professional assistance and might be considered sound trial strategy.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Harrington, 310 S.W.3d at 458. Appellant

bears the burden of proving counsel was ineffective by a preponderance of the

evidence.    See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).           The

reasonableness of counsel’s performance is judged under prevailing professional

norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65. Our review must be highly

deferential to trial counsel and avoid the deleterious effects of hindsight. Strickland, 466

U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. Under the second prong of the

test, a reasonable probability is a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.

B.     Discussion

       In this issue, appellant contends trial counsel rendered ineffective assistance of

counsel by failing to advise him of the deportation consequences of his plea, which, in

turn, rendered his plea involuntary. In making this contention, appellant relies heavily

on the United States Supreme Court’s opinion in Padilla v. Kentucky. See 559 U.S. at 366-

68, 130 S. Ct. at 1482.

       In Padilla, the Supreme Court held that inaccurate advice regarding a non-citizen

client’s potential deportation may constitute ineffective assistance of counsel. Id. When

federal immigration law clearly specifies that the defendant will be deported, counsel



Ex parte Godinez                                                                       Page 7
must affirmatively and correctly advise the defendant about immigration consequences

of the plea. Id. The Padilla Court further stated:

              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 (as it is in many of the
       scenarios posited by Justice Alito), a criminal defense attorney need do no
       more than advise a noncitizen client that pending criminal charges may
       carry the risk of adverse immigration consequences. But when the
       deportation consequence is truly clear . . . the duty to give correct advice is
       equally clear.

Padilla, 559 U.S. at 369, 130 S. Ct. at 1483.

       In the instant case, the record reflects that appellant’s trial counsel repeatedly

informed appellant about the possibility of deportation. At the plea hearing, appellant

testified that he went over the plea papers with his parents and trial counsel and

specifically went over the portion of the plea papers that addressed the possibility of

deportation.2      Moreover, in the following exchange, trial counsel asked appellant

whether he understood the immigration consequences of his guilty plea:



       2    State’s exhibit 1, which constituted appellant’s plea papers, contained the following
admonishments that appellant signed, indicating that he understood and was aware of the consequences
of his plea:

       4. 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.

                ....

       By my signature below I acknowledge that my attorney has fully explained the
       immigration consequences and legal action that may be taken against me by the
       Department of Homeland Security and/or Immigration and Customs Enforcement if I

Ex parte Godinez                                                                                   Page 8
       Q [Defense counsel]:            Do you have any questions about the
                                       immigration consequences as a result of you
                                       pleading guilty today?

       A [Appellant]:                  Yes. Does that affect anything from now on?

       Q:                              Well, it certainly could, yes.

       A:                              Will anything—

       Q:                              What it says is you could be deported. You
                                       could be. I mean, I don’t think you will be.
                                       You could be deported, though, today or in the
                                       future. You could be denied citizenship to the
                                       United States. Do you want to read this again
                                       or do you feel like you understand it?

       A:                              I understand it.

       Q:                              Are you sure this is what you want to do?

       A:                              Yes.

The trial court then admonished appellant and asked whether he understood all of the

paperwork he signed and everything that was discussed in open court. Appellant

responded, “Yes, sir.”




       plead guilty or no contest to the criminal offense of Tampering with Government
       Records. My attorney has explained, and I am fully aware, that in all likelihood if I am
       not a legal citizen of the United State[s] of America, with my plea to this offense, it is
       presumptively mandatory and virtually certain that I will be subject to deportation
       and/or exclusion from the United States of America and/or prevented from re-entry into
       the United States of America. Further, a criminal conviction for the above named offense
       may have adverse immigration consequences other than deportation, removal[,] or
       denial of re-entry. My attorney has advised me that I may seek the assistance of an
       immigration attorney if I have any further questions about the immigration consequences
       of my plea before I enter into this plea agreement. Having these immigration
       consequences explained to me[,] I am freely and voluntarily entering my plea to the
       above offense.


Ex parte Godinez                                                                                    Page 9
        Based on the foregoing, it is clear to us that trial counsel informed appellant “that

pending criminal charges may carry the risk of adverse immigration consequences,” as

is required by Padilla.3 See 559 U.S. at 369, 130 S. Ct. at 1483. In addition, the record

reflects appellant’s acknowledgement that he faced deportation if he entered his guilty

plea. See, e.g., Ex parte Sanchez, No. 05-13-00679-CR, 2013 Tex. App. LEXIS 10880, at *28

(Tex. App.—Dallas Aug. 27, 2013, no pet.) (mem. op., not designated for publication).

Accordingly, we cannot say that appellant has met his burden to show trial counsel’s

performance fell below an objective standard of reasonableness or that counsel’s plea

advice about deportation fell outside the range of competence demanded of attorneys in


        3  On appeal, appellant argues that trial counsel’s comment, “I don’t think you will be,” is
meaningful. However, we note that our review of the effectiveness of trial counsel’s assistance is based
on the totality of the representation, not on isolated incidents. See Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999); see also Ex parte Welborn, 875 S.W.2d 391, 393 (Tex. Crim. App. 1990).
Furthermore, trial counsel clearly articulated that appellant could be deported and denied citizenship to
the United States because of his guilty plea. Moreover, the plea papers, which appellant went over with
trial counsel and his parents and signed, also expressed the adverse immigration consequences of
appellant’s guilty plea. And finally, it is noteworthy that after trial counsel’s admonishment during the
plea hearing, appellant refused the opportunity to go back over the plea papers and articulated that he
understood all of the plea papers and everything that transpired during the plea hearing. Therefore,
based on the totality of the representation, we believe that trial counsel satisfied his duty under Padilla v.
Kentucky. See 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284 (2010). Accordingly, we cannot say
that, based on this comment alone, trial counsel ineffectively rendered assistance. See id.; see also
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674 (1984).

         Appellant also argues that trial counsel was ineffective because he failed to inform him about the
Deferred Action for Childhood Arrivals program enacted on June 15, 2012. We disagree. First, even if
appellant was found not guilty of the charged offense, there is no certainty that he was eligible for the
program, considering admission to the program is at the discretion of federal authorities. See United
States Dep’t of Homeland Security, Deferred Action for Childhood Arrivals, available at
http://www.dhs.gov/deferred-action-childhood-arrivals#0 (last visited Dec. 12, 2013); see also Exercising
Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (2012),
http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-
us-as-children.pdf. And second, even if appellant had not pleaded guilty to the charged offense, there is
no certainty that he would have been found not guilty and therefore eligible for the program. See id.
Again, as stated above, trial counsel informed appellant about the possible adverse immigration
consequences of his guilty plea. See Padilla, 559 U.S. at 369, 130 S. Ct. at 1483. As such, we cannot say that
trial counsel ineffectively rendered assistance. See id.; see also Strickland, 466 U.S. at 687-88, 104 S. Ct. at
2064-65.

Ex parte Godinez                                                                                       Page 10
criminal cases. See Padilla, 559 U.S. at 369, 130 S. Ct. at 1483; Strickland, 466 U.S. at 687-

88, 104 S. Ct. at 2064-65; Harrington, 310 S.W.3d at 458; see also Ex parte Sanchez, 2013 Tex.

App. LEXIS 10880, at **28-29. We therefore overrule appellant’s second issue.

                                       IV.     CONCLUSION

         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.




                                                  AL SCOGGINS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 9, 2014
Do not publish
[CR25]




Ex parte Godinez                                                                       Page 11
