                            NUMBER 13-10-00390-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


                   EX PARTE MIGUEL ANGEL MARTINEZ


                   On appeal from the 138th District Court
                        of Cameron County, Texas.


                            MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
              Memorandum Opinion by Chief Justice Valdez

      Appellant, Miguel Angel Martinez, pleaded no contest to the offense of

aggravated sexual assault, a first degree felony. See TEX. PEN. CODE ANN. § 22.021

(West Supp. 2010). Pursuant to a plea bargain, the trial court deferred adjudication and

sentenced Martinez to 180 days in jail and community supervision. Martinez filed an

application for post-conviction writ of habeas corpus relief pursuant to Texas Code of

Criminal Procedure article 11.072, which was denied. See TEX. CODE CRIM. PROC. ANN.

art. 11.072 (West Supp. 2010). On appeal, Martinez challenges the trial court’s denial
of his writ. By two issues, Martinez argues that: (1) the trial court failed to properly

advise him on immigration consequences pursuant to Texas Code of Criminal

Procedure article 26.13, id. at art. 26.13 (West Supp. 2010);       and (2) his defense

counsel provided ineffective assistance by failing to properly advise him of the

immigration consequences of pleading no contest to aggravated sexual assault. We

affirm.

                                     I.     BACKGROUND

          On November 2, 2009, Martinez pleaded no contest to an aggravated sexual

assault offense.      Martinez signed the court’s plea packet, which included a written

admonishment that informed Martinez in writing that if he is not a United States citizen,

his guilty plea could result in his deportation, exclusion from admission to this country,

or denial of naturalization under federal law.    Martinez and his attorney signed the

waiver stating that Martinez went to the ―9th grade in public school and can read, write

and understand the English language.‖ Defense counsel also executed the certificate of

defendant’s attorney certifying that Martinez knew ―that if he/she is not a citizen of the

United States, he/she may be subject to removal (deportation) from the United States,

exclusion from admissions from the United States, and/or denial of naturalization under

federal law.‖ During the plea hearing, defense counsel asked Martinez questions on the

record about his knowledge of the consequences of the plea:

          Defense counsel:          I’ve also made you aware of a plea of guilty
                                    has several consequences, one, the fact
                                    that you are not an American citizen can
                                    affect you being deported, being excluded
                                    from this country or being denied
                                    naturalization. Do you understand that?

          Martinez:                 Yes.


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The court accepted the plea bargain and sentenced hiim to 180 days in jail and

community supervision.

      On March 3, 2010, Martinez filed an application for post-conviction writ of habeas

corpus relief pursuant to article 11.072 of the Texas Code of Criminal Procedure. See

id. at art. 11.072 (West Supp. 2010). In that application, Martinez alleged by two issues

that: (1) the trial court did not properly admonish him of the immigration consequences

that would result from a guilty plea for aggravated sexual assault; and (2) that defense

counsel provided ineffective assistance.

      The trial court conducted a hearing on the application on April 13, 2010, in which

Martinez and his sister, Veronica Martinez, testified. Martinez testified that he only

attended school for a little over two years and he only had an understanding of the

English language of about twenty-five to thirty percent. He also stated that he attended

Texas State Technical College in a special program to learn English but he never

finished the first level, which is the equivalent of attending elementary school. Martinez

also stated that he met with his defense counsel four times for less than five minutes

each time.   At the meetings, Martinez testified that he told defense counsel of his

concern about being deported and defense counsel assured him not to worry because

Martinez entered the country as a minor and did not have any prior felonies. According

to Martinez, defense counsel told him that the ―most‖ he could get was two years’

imprisonment and that he would not be deported.         Martinez claimed that, although

defense counsel went on the record at his plea hearing stating that Martinez could get

deported, he disregarded this because he relied on defense counsel’s previous

statements that he would not get deported and just wanted to move on with his life.



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      Veronica testified that any time Martinez received mail in English she would have

to translate it for him because Martinez lacked an understanding of the English

language. She also stated that Martinez only attended school for two years and did not

finish level one of the TSTC program. According to Veronica, Martinez’s vocabulary in

English only amounted to, ―excuse me,‖ ―thank you,‖ and ―sorry.‖

      On May 25, 2010, the trial court issued an order denying the writ and finding: (1)

Martinez received the statutory admonishments from the Court, including one regarding

the possibility of deportation upon the entry of a plea of guilty; (2) Martinez signed a

statement reciting that he understood the admonitions and was advised by defense

counsel of the consequences; and (3) defense counsel was effective in his

representation of Martinez. This appeal followed.

                    II.    STANDARD OF REVIEW FOR HABEAS CORPUS

      In reviewing the trial court's habeas corpus judgment, we view the evidence in

the light most favorable to the ruling.   Ex parte Lafon, 977 S.W.2d 865, 867 (Tex.

App.—Dallas 1998, no pet.). Absent a clear abuse of discretion, we accept the trial

court's decision whether to grant the relief requested in a habeas corpus application. Id.

To reverse a habeas corpus judgment the appellant must show by a preponderance of

evidence that he was unaware of a significant consequence of the plea. Blanco v.

State, 771 S.W.2d 598, 599 (Tex. App.—Corpus Christi 1989, no pet.).

      When reviewing a guilty plea or, as in this case, a no contest plea, the plea is

voluntary if the defendant was made fully aware of the consequences. State v. Jimenez,

987 S.W.2d 886, 888 (Tex. Crim. App. 1999). We afford almost total deference to the

trial court’s determination of historical facts supported by the record, especially when



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the facts require an evaluation of credibility and demeanor. Ex parte Amezquita, 223

S.W.3d 363, 367 (Tex. Crim. App. 2006).

                   III.    TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 26.13

      In his first issue, Martinez asserts that the trial court failed to admonish him

pursuant to Texas Code of Criminal Procedure article 26.13. See TEX. CODE CRIM.

PROC. ANN. art. 26.13. The State counters that Martinez was properly admonished

because: he acknowledged in writing that if he was not a United States citizen and

pleaded guilty, his guilty plea could result in deportation; and the possibility of

deportation was discussed during the plea hearing.

A.    Applicable Law

      A judge accepting a plea of guilty or no contest is required to provide the

admonishments listed in Texas Code of Criminal Procedure article 26.13. See id. The

Texas Code of Criminal Procedure article 26.13(a)(4) provides:

             (a) Prior to accepting a plea of guilty or a plea of nolo contendere,
             the court shall admonish the defendant of:

             (4) 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.

Id. A judge may do so orally or in writing. Id.      If in writing, there must be a statement

signed by the defendant and his attorney that he understands the admonishments and

is aware of the consequences of his plea. Id. When the admonishments are provided in

writing and the defendant and his attorney have provided the required acknowledgment,

it is not necessary that the trial court orally reiterate the admonishments to the

defendant.    Blanco, 771 S.W.2d at 599.          Article 26.13(c) provides that ―substantial



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compliance by the court is sufficient‖ when admonishing a defendant ―unless the

defendant affirmatively shows that he was not aware of the consequences of his plea

and that he was misled or harmed by the admonishment of the court.‖ TEX. CODE CRIM.

PROC. ANN. art . 26.13.

B.     Discussion

       At the habeas corpus hearing, Martinez testified that he did not understand the

consequences of his plea because he relied on alleged prior statements by his defense

counsel that he would not be deported. However, at his plea hearing, Martinez signed

the waiver containing the admonishment that a no contest plea entered for the offense

charged may result in ―deportation, the exclusion from admission to this country, or the

denial of naturalization under federal law.‖ A certificate, signed by his counsel, provided

that appellant voluntarily and knowingly entered into the waiver.

       Viewing the evidence in the light most favorable to the ruling, we conclude

appellant has failed to meet his burden of establishing there was no admonishment

given consistent with article 26.13(a)(4).         See Lafon, 977 S.W.2d at 867.

Therefore, we cannot conclude that appellant affirmatively showed by a preponderance

of the evidence that he was not aware of the consequences of his plea. See Blanco,

771 S.W.2d at 599. The trial court did not abuse its discretion when it denied the relief

requested in appellant's habeas corpus application.         Lafon, 977 S.W.2d at 867.

Appellant's first issue is overruled.

                        IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, Martinez contends that his defense counsel was ineffective

because counsel did not inform Martinez of the possible immigration consequences of



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his plea.   The State counters that Martinez has failed to demonstrate that his trial

counsel was ineffective because: (1) Martinez signed a waiver, which stated that he

read, wrote, and understood English and understood the consequences of his plea; (2)

Martinez signed a statement reciting that he understood the admonitions and was

advised by defense counsel of the consequences; and (3) Martinez acknowledged on

the record that defense counsel advised him of the immigration consequence of his

plea.

A.      Applicable Law

        The United States Supreme Court has held that counsel must inform a client

whether his plea carries a risk of deportation.        Padilla v. Kentucky, 130 S. Ct.

1437,1475 (2010).      The Court found that before entering a plea of no contest, a

defendant is entitled to ―the effective assistance of competent counsel.‖ Id. (quoting

Strickland v. Washington, 466 U.S. 668, 686 (1984)).

        Under Strickland, a claim of ineffective assistance must show how specific acts

or omissions of counsel failed to meet two distinct criteria of effectiveness. Id.

Martinez must show: (1) his attorney’s representation fell below an objective standard

of reasonableness; and (2) there is a reasonable probability that, but for his attorney’s

errors, the result of the proceeding would have been different. Strickland, 466 U.S. at

684; Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that

appellant must show a reasonable probability that, but for the counsel’s errors, the fact-

finder would have had a reasonable doubt as to appellant’s guilt); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Martinez has the burden

of proving ineffective assistance of counsel by a preponderance of the evidence.



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Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State,

668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).

           The right to ―reasonably effective assistance of counsel‖ does not guarantee

counsel whose competency is judged by perfect hindsight or errorless counsel. Saylor

v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). The claims of ineffective

assistance must be supported by the record. Thompson, 9 S.W.3d at 814; Jaynes, 216

S.W.3d at 851. A silent record which provides no explanation for counsel’s actions

usually will not overcome the strong presumption of reasonable assistance. Thompson,

9 S.W.3d at 813–14. To warrant reversal without giving counsel an opportunity to

explain her actions, ―the challenged conduct must be so outrageous that no competent

attorney would have engaged in it.‖ Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim.

App. 2007) (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

B.        Discussion

          Martinez states that he received inaccurate legal advice regarding the

immigration consequences of his plea that led him to believe that his plea for

aggravated sexual assault would not affect his immigration status. Martinez claims that

if it was not for this advice from defense counsel, he would have chosen a different

course of action for resolving the case that would not have affected his immigration

status.

          However, the trial court heard the evidence submitted by Martinez during the

habeas corpus hearing, which included: (1) a waiver Martinez signed, which stated that

he read, wrote, and understood English and further understood the consequences of his

plea; (2) a signed statement by Martinez reciting that he understood the admonitions



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and   was    advised   by   defense      counsel   of    the   consequences;   and    (3)   an

acknowledgement on the record by Martinez that defense counsel advised him of the

immigration consequences of his plea.        The trial court as the trier of fact was free to

disbelieve Martinez’s claim that counsel gave him inaccurate legal advice regarding the

immigration consequences of pleading guilty.            See Amezquita, 223 S.W.3d at 367.

Martinez did not show that defense counsel’s representation fell below an objective

standard of reasonable, a requirement for proving ineffective assistance of counsel.

See Strickland, 466 U.S. at 686. Viewing the evidence in the light most favorable to the

trial court’s ruling, we conclude that the trial court did not abuse its discretion in denying

Martinez’s writ for habeas corpus. See Lafon, 977 S.W.2d at 867. Appellant's second

issue is overruled.

                                    V.      CONCLUSION

       The judgment of the trial court is affirmed.

                                                            ________________ ___
                                                            ROGELIO VALDEZ
                                                            Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of July, 2011.




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