                                   MEMORANDUM OPINION
                                           No. 04-11-00817-CR

                                       Ex Parte Jose Meza LOPEZ

                       From the County Court at Law No. 6, Bexar County, Texas
                                       Trial Court No. 316383
                           Honorable Wayne A. Christian, Judge Presiding

Opinion by:        Karen Angelini, Justice

Sitting:           Karen Angelini, Justice
                   Phylis J. Speedlin, Justice
                   Rebecca Simmons, Justice

Delivered and Filed: April 25, 2012

AFFIRMED

           Jose Meza Lopez appeals the trial court’s order denying his habeas corpus application

based on ineffective assistance of counsel. We affirm.

                                               BACKGROUND

           Lopez is a noncitizen, who entered this country as a legal permanent resident in 2005. In

January 2010, Lopez was arrested and charged with the offense of delivery of one-fourth of an

ounce or less of marijuana for remuneration. The offense was a misdemeanor. 1 In January 2011,

Lopez pled no contest to the charged offense and was placed on community supervision for

eleven months.



1
    TEX. HEALTH & SAFETY CODE ANN. § 481.120(b)(2) (West 2010).
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       In June 2011, Lopez filed an application for a writ of habeas corpus, seeking to withdraw

his plea. In his habeas corpus application, Lopez contended his counsel in the plea proceedings

was ineffective because he failed to advise Lopez that “he would face certain and permanent

deportation if he pled no contest.” Lopez further argued his counsel’s “failure to inform [him] of

the deportation consequences of pleading guilty to misdemeanor delivery of marijuana for

remuneration rendered [his] plea involuntary and unknowing because he did not know the

immigration consequences of his plea.”

       The trial court held a hearing on the habeas corpus application. Lopez offered, and the

trial court admitted, three affidavits in support of his application. In the first affidavit, Lopez

stated that when he entered his no contest plea, he was unaware that it would result in severe

consequences to his immigration status. Lopez said his retained counsel, James Hunt, did not

explain that a no contest plea would result in automatic deportation. Lopez further stated he and

Hunt met on two separate occasions before he entered his plea. Immediately before he entered

his plea, Hunt asked him if he had consulted with an immigration attorney. According to Lopez,

he told Hunt he had not. Lopez further stated that if he had known his plea was going to result in

automatic deportation, he would not have pled and would have taken his case to trial.

       In the second affidavit, Lopez’s counsel, James Hunt, stated he met with Lopez twice

before Lopez entered his plea. Hunt advised Lopez to consult with an immigration attorney

because he knew Lopez was not a citizen. On the day of the plea, Hunt asked Lopez if he was

ready to plead and whether he had consulted with an immigration attorney. Hunt did not

specifically recall Lopez’s response. Hunt further stated he recommended that Lopez enter a plea

rather than proceed to trial because the terms of the plea bargain were favorable to Lopez.




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       In the third affidavit, Alfonso Otero, an immigration attorney, opined that Lopez’s plea

“unequivocally subjected [him] to automatic and permanent deportation.” Otero explained that

under federal immigration law, a noncitizen who is convicted of an “aggravated felony” is

deportable. Otero further explained that under federal immigration law, an “aggravated felony”

includes “illicit trafficking in a controlled substance” as defined by the federal Controlled

Substances Act. According to Otero, a misdemeanor state drug conviction could be an

aggravated felony if it was analogous to an offense under the federal Controlled Substances Act

and if it was a felony punishable under federal law. Otero then compared the federal Controlled

Substances Act and Section 481.120 of the Texas Health and Safety Code, the statute prohibiting

the conduct with which Lopez was charged. After comparing the federal and state statutes, Otero

stated that the state offense of delivery of one-quarter of an ounce or less of marijuana for

remuneration constituted an “aggravated felony” under federal immigration law. Otero

concluded the affidavit by stating that, in his opinion, Lopez’s plea to this state drug offense

unequivocally subjected Lopez to permanent and automatic deportation.

       Thereafter, the State offered, and the trial court admitted, a transcript of the plea hearing

into evidence. The transcript shows the following took place at the plea hearing:

       Court:         Is Mr. Meza-Lopez a U.S. citizen?

       Counsel:       He is not.

       Court:         He is not.

                      Mr. Meza-Lopez, it’s my understanding that as a non U.S. citizen,
                      that any plea you enter before this court is going to have an
                      adverse immigration effect on you. Have you had a chance to
                      discuss with your attorney the ramifications of entering a plea
                      before this court with regard to your immigration status?

       Meza-Lopez: Yes, sir.



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       Counsel:       He has his own private immigration attorney, who has advised him—

       Court:         Well, Counsel, have you personally advised him that his entry of a plea in
                      this case is possibly going to have an adverse effect on [h]is status
                      immigration-wise?

       Counsel:       I have.

       Court:         And he still wants to enter a plea before this Court?

       Counsel:       He does.

       The trial court denied Lopez’s habeas corpus application. This appeal ensued.

                                    STANDARDS OF REVIEW

       In reviewing a trial court’s ruling in a habeas corpus proceeding, we review the record in

the light most favorable to the trial court’s ruling and uphold the ruling absent an abuse of

discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We afford almost total

deference to a trial court’s findings in habeas corpus proceedings, especially when those findings

are based upon an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363,

367 (Tex. Crim. App. 2006). We also defer to any implied findings and conclusions supported by

the record. Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010).

       Generally, to obtain habeas corpus relief on a claim of ineffective assistance of counsel,

the defendant 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. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

However, when a defendant claims his plea was involuntary due to ineffective assistance of

counsel, the defendant must show (1) counsel’s advice with respect to the plea offer did not fall

within the wide range of competence demanded of attorneys in criminal cases; and (2) there is a

reasonable probability that, but for counsel’s deficient performance, the defendant would not



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have accepted the offer and pleaded guilty or nolo contendere and would have insisted on going

to trial. Ex parte Moussazadeh, No. AP-76,439, 2012 WL 468518, at *5 (Tex. Crim. App. 2012);

Ex parte Romero, 351 S.W.3d 127, 130-31 (Tex. App.—San Antonio 2011, no pet.). An

applicant seeking habeas corpus relief on the basis of an involuntary plea must prove his claim

by a preponderance of the evidence. Kniatt, 206 S.W.3d at 664.

                                           DISCUSSION

       On appeal, Lopez argues the trial court abused its discretion in denying his habeas corpus

application because he established both elements of his ineffective assistance of counsel claim.

As to the first element, Lopez argues counsel’s performance was deficient because counsel failed

to advise him that Lopez would become automatically deportable upon entry of his plea. In

response, the State argues counsel’s performance was not deficient because it was not “truly

clear” that Lopez would be deported as a result of his plea.

       In Padilla v. Kentucky, the United States Supreme Court held that defense counsel’s

performance was deficient because counsel erroneously advised the defendant that a guilty plea

to a drug offense would not affect his immigration status when it in fact made his deportation

virtually mandatory. 130 S. Ct. 1473, 1478 (2010). In Padilla, the Court concluded the terms of

the relevant immigration statute were “succinct, clear, and explicit” in defining the deportation

consequence for the defendant’s conviction. Id. at 1483. As a result, the Court concluded that

“counsel could have easily determined that [the defendant’s] plea would make him eligible for

deportation simply from reading the text of the statute, which addresses not some broad

classification of crimes but specifically commands removal for all controlled substances

convictions except the most trivial of marijuana possession offenses.” Id. The Court then held

that “when the deportation consequence is truly clear…the duty to give correct advice is equally



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clear.” Id. Acknowledging that “[i]mmigration law can be complex” and “is a legal specialty of

its own,” the Court qualified its holding, instructing that “[w]hen the law is not succinct and

straightforward…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.” Id.

       In Ex Parte Romero, we applied Padilla and held counsel’s performance was deficient

because counsel failed to advise the defendant of the deportation consequences resulting from his

guilty plea. 351 S.W.3d at 130. After examining the applicable immigration statutes, we

concluded counsel could have easily determined that a guilty plea to the offense of aggravated

sexual assault of a child would make the defendant not just at risk for possible deportation but

automatically deportable. Id. at 130-31.

       Here, Lopez maintains his case was no different than Padilla and Ex parte Romero in that

the deportation consequences of his plea were truly clear, and therefore, counsel was deficient in

failing to advise him of these consequences before he entered his no contest plea. After

reviewing the applicable federal immigration and criminal statutes, several federal cases, and the

state statute proscribing the offense in this case, we conclude this was not a situation in which the

deportation consequences of a no contest plea were “succinct, clear, and explicit.” Unlike the

situations presented in Padilla and Ex Parte Romero, counsel could not have simply read the

applicable federal immigration statutes, and concluded that Lopez would be deported if he

entered a no contest plea. Even the affidavit presented by Lopez’s own expert, Otero, illustrates

that the deportation consequences of a no contest plea were not “succinct, clear, and explicit” in

this case. In explaining why Lopez’s plea made him subject to automatic deportation, Otero

refers to numerous federal immigration and criminal statutes, federal cases, and administrative

immigration decisions.



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       Federal law provides that a noncitizen who is convicted of an “aggravated felony” is

deportable. 8 U.S.C. 1227(a)(2)(A)(iii). Federal immigration law defines the term “aggravated

felony” to include “illicit trafficking in a controlled substance (as defined in section 802 of Title

21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C.

1101(43)(B). Section 924(c) of Title 18 defines the term “drug trafficking crime” as “any felony

punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled

Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.” 18 U.S.C.

924(c)(2). Moreover, a state offense constitutes a “felony punishable under the Controlled

Substances Act” only if the state offense proscribes conduct punishable as a felony under that

federal law. Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006).

       Here, Lopez pled no contest to delivery of one-fourth of an ounce or less of marijuana for

remuneration, a misdemeanor under state law. In this case, any deportation consequences would

be discernible, if at all, only after counsel analyzed numerous statutes, court cases, and

administrative decisions, and evaluated whether the state drug offense in question proscribed

conduct punishable as a felony under the applicable federal laws.

       We conclude counsel could not have easily determined that a nolo contendere plea would

subject Lopez to deportation. Thus, under these circumstances, counsel’s duty was to advise

Lopez that the pending charge may carry a risk of adverse immigration consequences. See

Padilla, 130 S. Ct. at 1483 (stating that when “the law is not succinct and straightforward” a

criminal defense attorney need only advise a noncitizen client that pending criminal charges may

carry a risk of adverse immigration consequences).

       The record also supports a finding that counsel satisfied his duty to advise Lopez that his

no contest plea may carry a risk of adverse immigration consequences. The transcript of the plea



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hearing indicates counsel did discuss the risk of adverse immigration consequences with Lopez.

At the plea hearing, the trial court expressly asked Lopez if he had discussed with counsel the

effect his no contest plea might have on his immigration status. Lopez answered that he had. The

transcript of the plea hearing further indicates Lopez consulted with an immigration attorney

concerning the immigration consequences of his plea. Lopez’s affidavit contradicts this

representation. In his affidavit, Lopez states he told counsel he had not consulted with an

immigration attorney. However, the trial court was not required to believe the self-serving

statements contained in Lopez’s affidavit. See Bustamante v. State, 106 S.W.3d 738, 741 (Tex.

Crim. App. 2003) (noting the fact finder is free to reject self-serving statements); Messer v. State,

757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (recognizing that the trial

court sitting as the trier of fact in an ineffective assistance of counsel claim could properly

consider the interest or bias of any witness).

       Counsel’s duty was to advise Lopez that the pending charge may carry a risk of adverse

immigration consequences. Viewed in the light most favorable to the trial court’s ruling, the

evidence supports a finding that counsel performed his duty. We, therefore, conclude Lopez did

not meet his burden to show that counsel’s performance was deficient.

                                           CONCLUSION

       Because Lopez failed to meet his burden to establish the first element of his ineffective

assistance of counsel claim, the trial court did not abuse its discretion in denying his habeas

corpus application. The trial court’s order is affirmed.

                                                       Karen Angelini, Justice

DO NOT PUBLISH




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