Affirmed and Memorandum Opinion filed February 26, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00088-CR

                        SENTHIL MANALAN, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 11
                           Harris County, Texas
                       Trial Court Cause No. 2061302

                  MEMORANDUM OPINION
      A jury found appellant Senthil Manalan guilty of misdemeanor assault. See
Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2018). The trial court sentenced
appellant to a one-year confinement probated for two years and a $300 fine.
Appellant timely appealed and asserts three issues challenging the trial court’s final
judgment. For the reasons set forth below, we affirm.
                              FACTUAL BACKGROUND

      Appellant and complainant are husband and wife, respectively. Appellant
and complainant moved from India to the United States in 2013 for appellant’s job.

      Complainant called 9-1-1 on November 11, 2015, reporting that appellant
had hit her repeatedly with a belt at the couple’s apartment. The alleged assault
and ensuing events described below are taken from witness testimony from
appellant’s January 2017 two-day trial.

      Complainant testified that appellant hit her with a belt on November 11,
2015 because she “borrowed flip-flops from [her] friend[.]” Complainant testified
that appellant hit her “a lot” on the arms, hands, and legs, and that appellant hit her
once on the forehead. Complainant stated that she left the couple’s apartment and
called police “many times.” Complainant waited near the apartment complex’s
leasing office until Houston Police Officer Ricardo Gonzalez                   arrived
approximately four hours later. Complainant returned to the couple’s apartment
with Officer Gonzalez, but appellant was not at the apartment.

      According to complainant, she had a friend take pictures of her injuries after
Officer Gonzalez left.     Five photographs of complainant were admitted into
evidence; the photographs show red marks and bruising on complainant’s upper
arms and a red mark on her forehead. Complainant testified that the red marks
were “belt marks.”

      While cross-examining complainant, appellant’s trial counsel questioned her
regarding an alleged assault that occurred the day before complainant called 9-1-1:

      TRIAL COUNSEL:             Were you beaten on November 10th?
      COMPLAINANT:               Yes.
      TRIAL COUNSEL:             Okay. And why didn’t you call police on
                                 November 10th?
                                          2
       COMPLAINANT:                 I don’t — I don’t want — my culture is not
                                    to call. Go be — that is not my culture. I’m
                                    giving every time chance to [sic] him to
                                    change.

Complainant acknowledged that she, appellant, and the couple’s two children were
preparing to return to India. At the time of trial, complainant was applying for a U
visa “for people who claim to be the victims of domestic violence.” Complainant
acknowledged that, “if [she] cooperate[d] with law enforcement[,] that [she] can
. . . get legal status in this country.”

       Officer Gonzalez, who responded to complainant’s 9-1-1 call, testified that
he saw “red marks” on complainant’s forehead and arms when he met her at the
apartment complex’s leasing office. According to Officer Gonzalez, complainant
told him she “didn’t want to pursue charges against” appellant but wanted Officer
Gonzalez to “explain to [appellant] that . . . he’s not to hit [complainant] in
America.”     Officer Gonzalez returned to the apartment with complainant, but
appellant was not present. Officer Gonzalez completed his report; explained to
complainant “what [she] need[ed] to do for follow up;” and transferred
complainant’s case to the Houston Police Department’s family violence unit.
Officer Gonzalez testified that complainant was “consistent in her story;” Officer
Gonzalez did not “find [complainant] suspicious at all[.]”

       While he was being cross-examined by appellant’s trial counsel, Officer
Gonzalez reviewed the photographs of complainant that had been admitted into
evidence. Officer Gonzalez testified that the red mark he saw on complainant’s
forehead when he arrived at the apartment complex “was actually higher” than the
mark shown in the photographs. In one of the photographs, complainant shows her
upper left arm; reviewing this photograph, Officer Gonzalez testified that he did
not see any injuries on complainant’s upper left arm but recalled “some redness on

                                            3
her forearms.”

       Officer Gail Sanchez, a detective with the Houston Police Department’s
family violence unit and the recipient of complainant’s case, also testified at
appellant’s trial.   Recalling her initial conversation with complainant, Officer
Sanchez testified that complainant “wanted basically just to have an officer contact
[appellant] and . . . have him not touch her anymore.” Complainant later “changed
her mind” and told Officer Sanchez that she “wanted to file the charges.”
Complainant provided Officer Sanchez a written statement regarding the alleged
assault.

       Officer Sanchez spoke to appellant by phone and scheduled an appointment
for appellant to come in and “give [his] side of — of what had happened.”
Appellant did not attend the appointment with Officer Sanchez. Officer Sanchez
presented complainant’s case to the Harris County District Attorney’s office; the
District Attorney’s office charged appellant with misdemeanor assault of a family
member.

       During cross-examination, Officer Sanchez acknowledged that complainant
told her “she didn’t want to be sent back to India with her children[.]” Officer
Sanchez also testified that complainant “didn’t want [appellant] deported.” Officer
Sanchez came to the conclusion that complainant “wanted [appellant] to spend one
day in jail . . . but not get deported.”

       Devan Arangaramanujam, appellant’s older brother, testified as a witness for
the defense. Arangaramanujam recalled visiting appellant and complainant on
November 14-15, 2017; Arangaramanujam stated that he did not “observe anything
that would lead [him] to believe that [complainant had] been attacked with a belt.”
Arangaramanujam testified that complainant “asked to process a green card
through [appellant] that way she can drop the charges . . . [and] stay a little longer.
                                           4
Like, stay here in the United States.”                  Appellant’s trial counsel asked
Arangaramanujam whether he “ha[d] an opinion as to whether [appellant] is
peaceful and law abiding?” Arangaramanujam replied: “Yes. And he is a very
gentle and passionate father, also.”

      During      cross-examination,        the    State’s      prosecutor   questioned
Arangaramanujam with respect to his description of appellant as a “peaceful and
loving man.” The State introduced through Arangaramanujam Exhibits 9 and 10:
Exhibit 9 is a screenshot from a Facebook page. On the page is a post from a
profile named “Senthil Manalan;” next to the profile name is a small profile
picture. The post contains the following poem:

                                 Love ur husband

                     when he orders you to make tea or coffee.
                               He wants to feel fresh
                         to listen [to] your nonstop talks.

                                      Love him
                      if he looks at all the beautiful females.
                   He is just checking that you are still the best.

                                       Love him
                         if he criticize[s] your cooking . . .
                            He is still improving his taste

                                       Love him
                    if he snores at night and disturbs your sleep.
 He is trying to prove that he is the most relaxed person after being married to you

                                      Love him
                                   if he forgets to
                         give you a gift on your birthday
                        He is saving money for your future.

                                       Love him . . .

                                             5
                                          Because . .
                                 you don’t have a choice . .
                                              and
                               killing is a legal offense . . .!!!

Exhibit 10 appears to be a full-page version of the profile picture shown next to the
profile name in Exhibit 9. On the top right corner of Exhibit 10 is the name
“Senthil Manalan;” underneath the profile name are comments and “likes.”

       Reviewing Exhibit 10, Arangaramanujam responded “Yes” when asked:
“[D]o you recognize the name on the Facebook page?”                         Arangaramanujam
responded “Yes” when asked: “Do you — do you recognize the — the man in this
picture?” Finally, Arangaramanujam answered “Yes” when asked: “[I]s the photo
in State’s Exhibit 10 your brother?” When asked if Exhibit 9 contained the “same
Facebook page,” Arangaramanujam said, “No. I’m not sure of that part.” The trial
court admitted Exhibits 9 and 10 into evidence over appellant’s objections.

       The jury returned a verdict finding appellant guilty of misdemeanor assault
of a family member. The trial court signed a final judgment on January 25, 2017,
and sentenced appellant to a one-year confinement probated for two years and a
$300 fine. Appellant filed a motion for new trial, which the trial court denied.
Appellant timely appealed.

                                           ANALYSIS

       Appellant raises three issues on appeal:1

       1.      The trial court erred in admitting Exhibits 9 and 10 because they were
               not properly authenticated.
       2.      The trial court erred by failing to grant appellant’s motion for a
               mistrial after the State’s prosecutor “made an improper racial and
       1
         Appellant lists his issues in a different order in his brief’s statement of issues than he
does in the body of his brief. We address the issues in the order they are listed in the body of
appellant’s brief.

                                                6
              ethnic appeal in his final argument.”
       3.     Appellant’s trial counsel rendered ineffective assistance by failing to
              inform appellant that “he would be subject to ‘presumptively
              mandatory’ deportation as an aggravated felon if he were to receive
              the maximum sentence.”

 We address these issues below.

I.     Admission of Exhibits 9 and 10

       Challenging the trial court’s admission of Exhibits 9 and 10, appellant
 asserts that the evidence “was not properly authenticated.” The State argues that
 appellant waived this complaint by failing to raise it at trial.

       To preserve a complaint for appellate review, a party must present a timely
 objection to the trial court, state the specific grounds for the objection, and obtain a
 ruling. See Tex. R. App. P. 33.1(a); Garza v. State, 126 S.W.3d 79, 81-82 (Tex.
 Crim. App. 2004). “There are two main purposes behind requiring a timely,
 specific objection: (1) to inform the judge of the basis of the objection and give
 . . . [the judge] the chance to make a ruling on it, and (2) to give opposing counsel
 the chance to remove the objection or provide other testimony.”            Garza, 126
 S.W.3d at 82.

       Appellant raised at trial the following objections with respect to Exhibits 9
 and 10:

             The exhibits go “beyond the scope of any question” appellant’s trial
              counsel asked Arangaramanujam or “any character trait that
              [appellant’s counsel] elicited.”
             The exhibits are not relevant to Arangaramanujam’s description of
              appellant as “peaceful and law abiding.” Appellant’s trial counsel
              “didn’t elicit the character traits that [appellant is] a nice husband.”
             The exhibits do not “relate to the character trait of being passionate
              either.”

                                             7
            The exhibits’ “connection to any relevant character trait . . . is not
             there. And even if it is there, it’s just — it’s so speculative, Judge.
             It’s really prejudicial.”
            The exhibits portray “a kind of tongue-in-cheek kind of joke thing that
             [appellant] posted on — on Facebook.” The exhibits are “not
             something that [appellant] wrote himself.”
            The exhibits are “really prejudicial” and “otherwise inadmissible.”
            The “poem” shown on Exhibit 9 “relates to the Indian culture
             relationship between the husband and wife. Attacking a person for a
             cultural, religious, or racial trait violates due process of law, due
             course of law, [and] equal protection of law.”
            “As to both [exhibits], a proper predicate hasn’t been laid; and also
             it’s improper to admit an underlying document like this for
             impeachment purposes. It’s improper impeachment.”
While making these objections, appellant’s trial counsel did not dispute that
appellant made the posting shown in Exhibit 9 and stated several times that
appellant “posted” the poem. Appellant’s trial counsel also stated:

      [Appellant] saw some thing somewhere on the internet, and he
      thought it was amusing. So he — so he reprinted [it] on his Facebook
      page.
                            *             *            *
      I don’t know if he printed it out, but he — he posted on his own
      Facebook page.
The trial court overruled appellant’s objections to Exhibits 9 and 10.

      Appellant raised at trial several objections challenging Exhibits 9 and 10;
these objections primarily challenged the exhibits on grounds that they were not
relevant to the character traits elicited during Arangaramanujam’s direct
examination.    Appellant did not challenge Exhibits 9 and 10 on grounds of
authentication. Because appellate did not raise his authentication challenge in the
trial court, it is not preserved for appellate review. See Tex. R. App. P. 33.1(a);

                                          8
Garza, 126 S.W.3d at 81-82.

      Appellant summarily asserts that his trial counsel “objected that the proper
predicate was not laid.” But “[a]n objection to an improper predicate that fails to
inform the trial court exactly how the predicate is deficient will not preserve error.”
Gregory v. State, 56 S.W.3d 164, 182 (Tex. App.—Houston [14th Dist.] 2001, pet.
dism’d); see also Beck v. State, 719 S.W.2d 205, 214 (Tex. Crim. App. 1986); Bird
v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985); Edwards v. State, 497 S.W.3d
147, 163 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); Young v. State, 183
S.W.3d 699, 704-05 (Tex. App.—Tyler 2005, pet. ref’d); Teixeira v. State, 89
S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d.). Appellant’s assertion
that “a proper predicate hasn’t been laid” does not preserve his authenticity
challenge for appeal. See Gregory, 56 S.W.3d at 182.

      Although a specific objection may not be required “as long as the court can
understand from the context what the complaint is,” the context surrounding
appellant’s “predicate” objection did not suggest that appellant intended to
challenge the authenticity of Exhibits 9 and 10. See Clark v. State, 365 S.W.3d
333, 337 (Tex. Crim. App. 2012). In voicing his objections, appellant primarily
asserted that Exhibits 9 and 10 were not relevant to the character traits elicited
during Arangaramanujam’s direct examination; appellant also asserted the poem in
Exhibit 9 was a “joke” and “really prejudicial.” Appellant’s trial counsel stated
several times that appellant “posted” the poem on his Facebook page. This context
does not suggest that appellant sought to challenge the authenticity of Exhibits 9
and 10, and does not preserve appellant’s authentication issue for our review. See
id.

      We overrule appellant’s first issue.



                                          9
II.     Denial of Mistrial

        An attorney’s jury argument is proper if it fits into one or more of the
  following categories: (1) summation of the evidence; (2) reasonable deductions
  from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for
  law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).
  During his closing argument, the State’s prosecutor made the following remarks:

        The defense wants you to think that, you know, [complainant] is some
        Shakespearean actress that’s been on Broadway, knows how to fake
        cry and — and pretends that, you know, her life’s in shambles and
        called dispatch and she’s just the liar of the century. Wow. Man.
        That’s — whew. What a story. But that’s not credible. That’s not a
        reasonable story to believe. The — the reasonable story would —
        would be what she told you on the stand happened, which is her
        husband beat her with a belt; and then she called 9-1-1 because she
        didn’t know what to do anymore.
        You know, she’s conflicted. Her culture tells her to just submit.
  Appellant’s trial counsel objected, asserting the prosecutor was “striking at
  [appellant] with a cultural reference and — and also arguing that certain actions
  were taken in conformity with [appellant’s and complainant’s] culture.” The trial
  court sustained appellant’s objection and instructed the jury to “disregard the last
  remark of the prosecutor. Do not consider it for any purpose now or later during
  your deliberations.”   Appellant moved for a mistrial; the trial court denied
  appellant’s motion. Appellant’s motion for mistrial and the trial court’s denial
  preserve this issue for appellate review. See Cruz v. State, 225 S.W.3d 546, 548
  (Tex. Crim. App. 2007).

        Appellant argues on appeal that the trial court erred by failing to “grant[] a
  mistrial after the prosecutor made an improper racial and ethnic appeal in his final
  argument.” The State asserts that (1) the prosecutor’s comments during closing
  argument were not improper; and (2) the trial court did not abuse its discretion in
                                          10
denying appellant’s motion for mistrial.

      Because the trial court sustained appellant’s objection and instructed the jury
to disregard the argument, “the only adverse ruling — and thus the only occasion
for making a mistake — was the trial court’s denial of the motion for mistrial.”
Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011) (internal quotation
omitted). We therefore limit our review to the trial court’s denial of a mistrial. See
id. We presume for purposes of the analysis that the challenged comments were
improper. See Crayton v. State, 463 S.W.3d 531, 534 (Tex. App.—Houston [14th
Dist.] 2015, no pet.).

      A.     Legal Standards

      A mistrial is an appropriate remedy only in “extreme circumstances” for a
limited class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d
880, 884 (Tex. Crim. App. 2009). “A mistrial halts proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and
futile.” Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).

      We review the trial court’s denial of a mistrial for an abuse of discretion.
Id.; Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We consider the
evidence in the light most favorable to the trial court’s ruling, considering only
those arguments before the court at the time of the ruling. Ocon, 284 S.W.3d at
884; Pena v. State, 554 S.W.3d 242, 251 (Tex. App.—Houston [14th Dist.] 2018,
pet. filed). “The ruling must be upheld if it was within the zone of reasonable
disagreement.” Ocon, 284 S.W.3d at 884.

      To determine whether the trial court abused its discretion in denying a
mistrial for improper jury argument, we balance three factors: “(1) the severity of
the misconduct (the magnitude of the prejudicial effect of the prosecutor’s


                                           11
remarks), (2) the measures adopted to cure the misconduct (the efficacy of any
cautionary instruction by the judge), and (3) the certainty of conviction absent the
misconduct (the strength of evidence supporting the conviction).” Archie, 340
S.W.3d at 739 (citing Hawkins, 135 S.W.3d at 77).

      A mistrial is the proper remedy for an improper jury argument only when the
argument is so emotionally inflammatory that curative instructions are not likely to
prevent the jury from being unfairly prejudiced against the defendant. See Archie
v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Pena, 554 S.W.3d at 251;
see also Gilbert v. State, 494 S.W.3d 758, 770 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d).

      B.     Application of Legal Standards

      In his closing argument, the prosecutor stated that “[complainant’s] culture
tells her to just submit.” Appellant argues this “improper racial and ethnic appeal”
was not cured by the trial court’s instruction to disregard.

      With respect to the first Archie factor, we consider the severity of the
misconduct, i.e., the magnitude of the remark’s prejudicial effects. See Archie, 340
S.W.3d at 739. The State argues the challenged remark draws on the following
portions of complainant’s testimony:           she did not want appellant arrested
“[b]ecause of [her] culture;” she was “waiting for [appellant] to change;” her
“culture is not to call;” and she was “giving [appellant] every time chance to [sic]
him to change.” Although complainant did not specifically state that her culture
directed her to “submit,” she made several statements associating her culture with
her reluctance to call the police. Presuming for purposes of our analysis that the
remark was improper, we conclude that summarizing complainant’s associations of
her culture with the word “submit” was not necessarily emotionally inflammatory
or, if so, that it would rise to a level that curative instructions would not likely
                                          12
prevent unfair prejudice. See Submit, New Oxford American Dictionary (3rd ed.
2010) (“submit” defined as “accept[ing] or yield[ing] to a superior force or to the
authority or will of another person”); see also Brown, 270 S.W.3d at 570 (proper
jury arguments include summations of the evidence and reasonable deductions
from the evidence).

      Turning to the second Archie factor, we note that the trial court instructed
the jury to “disregard the last remark of the prosecutor. Do not consider it for any
purpose now or later during your deliberations.” An instruction to disregard an
improper jury argument typically cures the error. Phillips v. State, 130 S.W.3d
343, 356 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex.
Crim. App. 2006). “The law generally presumes that instructions to disregard and
other cautionary instructions will be duly obeyed by the jury.” Archie, 340 S.W.3d
at 734. Moreover, appellant has not pointed to any evidence suggesting the jury
failed to follow the trial court’s instructions. See Nickerson v. State, 312 S.W.3d
250, 266 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). In the absence of any
evidence to the contrary, we presume the jury followed the trial court’s
instructions. See id.

      For the final Archie factor, we examine the certainty of appellant’s
conviction absent the alleged misconduct. Archie, 340 S.W.3d at 741. Here,
complainant testified that appellant hit her with a belt on November 11, 2015.
Photographs were admitted showing red marks and bruising on complainant’s
upper arms and a red mark on her forehead; complainant testified that these
photographs were taken the day of the reported incident and showed “belt marks.”
Officer Gonzalez testified that he saw “red marks” on complainant’s forehead and
arms when he responded to complainant’s 9-1-1 call. Officer Gonzalez testified
that complainant was “consistent in her story” and that he did not “find

                                        13
   [complainant] suspicious at all[.]” This testimony and reasonable inferences the
   jury could draw therefrom support the elements of the charged crime. See Tex.
   Penal Code Ann. § 22.01(a). We are unable to conclude with any certainty that the
   jury would have rejected this testimony absent the presumptively improper jury
   argument. See Archie, 340 S.W.3d at 739; Ocon, 284 S.W.3d at 884.

          Balancing the Archie factors and considering the evidence in the light most
   favorable to the challenged ruling, the trial court’s denial of a mistrial was not an
   abuse of discretion. See Archie, 340 S.W.3d at 739; Ocon, 284 S.W.3d at 884. We
   overrule appellant’s second issue.

III.      Ineffective Assistance of Counsel Claim

          Arguing that he received ineffective assistance of counsel, appellant asserts
   that his trial counsel failed to inform him that “he would be subject to
   ‘presumptively mandatory’ deportation as an aggravated felon if he were to receive
   the maximum sentence.”           Appellant cites Padilla v. Kentucky, 559 U.S. 356
   (2010), to support his ineffective assistance claim. Appellant raised this argument
   in his motion for new trial, which the trial court denied.2

          A.      Legal Standards

          When an ineffective assistance claim in a motion for new trial is rejected by
   the trial court and reasserted on appeal, we review the ineffective assistance claim
   as a challenge to the denial of the new trial motion. See Holden v. State, 201
   S.W.3d 761, 763 (Tex. Crim. App. 2006); Green v. State, 554 S.W.3d 785, 788-89
   (Tex. App.—Houston [14th Dist.] 2018, no pet.). We review a trial court’s denial
   of a motion for new trial for an abuse of discretion, reversing only if the trial
   court’s ruling was clearly erroneous and arbitrary. Okonkwo v. State, 398 S.W.3d
          2
           Ineffective assistance claims raised in a motion for new trial are preserved for appellate
   review. Reyes v. State, 849 S.W.2d 812, 814 (Tex. Crim. App. 1993).

                                                  14
689, 694 (Tex. Crim. App. 2013).         A trial court abuses its discretion if no
reasonable view of the record could support its ruling. Id. We view the evidence
in the light most favorable to the trial court’s ruling and presume the trial court
made all findings, express and implied, in favor of the prevailing party. Id.

      When, as here, the trial court’s ruling on a new trial motion is based solely
upon affidavits, “a deferential rather than de novo standard applies to our review of
a trial court’s determination of historical facts.” Charles v. State, 146 S.W.3d 204,
210 (Tex. Crim. App. 2004), superseded on other grounds by State v. Herndon,
215 S.W.3d 901 (Tex. Crim. App. 2007). We defer to the trial court’s credibility
determinations and will not substitute our judgment for that of the trial court.
Frangias v. State, 413 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2013,
no pet.).

      An ineffective assistance claim is analyzed pursuant to the two-prong test
described in Strickland v. Washington, 466 U.S. 668 (1984). To show ineffective
assistance of counsel under Strickland, a defendant must show (1) counsel’s
performance was deficient, i.e., that counsel’s assistance fell below an objective
standard of reasonableness; and (2) a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. Id. at 687-88; Perez
v. State, 310 S.W.3d 890, 892-83 (Tex. Crim. App. 2010). A defendant must
establish both the performance and prejudice prongs of the Strickland test; failure
to satisfy either prong defeats the defendant’s ineffectiveness claim. Perez, 310
S.W.3d at 893.

      With respect to Strickland’s performance prong, our review is “highly
deferential and presumes that counsel’s actions fell within the wide range of
reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002).      The benchmark for judging an ineffectiveness claim is

                                         15
“whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686; see also Ex parte Chandler, 182 S.W.3d 350,
353-54 (Tex. Crim. App. 2005) (orig. proceeding) (“It is only in that relatively rare
situation that a criminal defendant may obtain a new trial based upon a claim that
his attorney provided constitutionally deficient assistance.”).

      Strickland’s standards apply to ineffective assistance claims asserting that
counsel failed to apprise a non-citizen client about adverse immigration
consequences associated with the client’s legal proceedings. See Padilla, 559 U.S.
at 369-72; see, e.g., Ex parte Torres, 483 S.W.3d 35, 43-44 (Tex. Crim. App.
2016).   For the first prong of the Strickland test, Padilla provides that trial
counsel’s performance is deficient if counsel fails to advise a non-citizen client
about deportation consequences that are “truly clear.” 559 U.S. at 369. The
immigration consequences in Padilla were “truly clear” where the defendant
pleaded guilty “to the transportation of a large amount of marijuana,” which
rendered the defendant’s subsequent deportation “presumptively mandatory.” Id.
at 359, 369.    But Padilla also acknowledges that, in numerous situations, “the
deportation consequences of a particular plea are unclear or uncertain.” Id. at 369.
When deportation consequences are uncertain, “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.

      Ineffective assistance claims citing Padilla have been asserted to challenge
the voluntariness of a guilty plea. See, e.g., Ex parte Roldan, 418 S.W.3d 143, 145
(Tex. App.—Houston [14th Dist.] 2013, no pet.); Ex parte Fassi, 388 S.W.3d 881,
883 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In this context, the prejudice
prong of the Strickland test requires the defendant to show a reasonable probability

                                          16
that, but for trial counsel’s errors, the defendant would not have pleaded guilty and
would have insisted on going to trial. Ex parte Fassi, 388 S.W.3d at 886-87. This
test is “‘objective’” and “‘turns on what a reasonable person in the defendant’s
shoes would do.’” Id. at 887 (quoting U.S. v. Smith, 844 F.2d 203, 209 (5th Cir.
1988) (per curiam)). When, as in this case, the prejudice prong of the Strickland
test is dispositive, we address only that issue on appeal. Seamster v. State, 344
S.W.3d 592, 594 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); see also
Strickland, 466 U.S. at 697.

          Appellant asserts that, if he had been apprised of “[t]he immigration
consequences of proceeding to trial,” he “would have acted differently.” Although
these circumstances run counter to the typical Padilla scenario, the prejudice prong
of the Strickland test nonetheless may be satisfied by showing a reasonable
probability that, but for trial counsel’s errors, appellant would not have proceeded
to trial and instead would have accepted the State’s plea offer. Ex parte Fassi, 388
S.W.3d at 886-87 (burden on the defendant to prove that it would have been
rational for the defendant to have rejected the plea deal and insisted on going to
trial).

          B.    Application of Legal Standards

          Appellant does not point to any part of the record to support his claim that
“he would have acted differently had he known” the immigration consequences
associated with proceeding to trial. In the affidavit included with his motion for
new trial, appellant states:

          My trial lawyers did not tell me that a one-year sentence would result
          in an aggravated felony, nor did anyone else before I was convicted
          and sentenced. Had I known, I would not have chosen to proceed to
          trial. The chance of an acquittal would have been greatly outweighed
          in my mind by the chance that a sentence of probation would have

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       been a one-year sentence that was probated.

Assuming the trial court made all findings in favor of its decision, we presume the
trial court disregarded appellant’s statement that he “would not have chosen to
proceed to trial.” See Okonkwo, 398 S.W.3d at 694. In light of the deferential
standard under which we review the trial court’s credibility determinations and its
resolution of historical facts, the trial court’s decision to disregard appellant’s
statement does not constitute an abuse of its discretion. In the absence of any other
evidence supporting the prejudice prong of the Strickland test, the trial court did
not err in denying appellant’s motion for new trial.

       Moreover, the same immigration consequences likely would have resulted
from the other course of action available to appellant during the underlying
proceedings. Appellant asserts in his affidavit that he would have accepted “a
sentence of probation [which] would have been a one-year sentence that was
probated.” Corroborating appellant’s statement regarding an alternative offer, the
April 5, 2017 affidavit of prosecutor Andrew J. Figliuzzi states that appellant was
offered “a Deferred Adjudication in order to resolve the case” and that the offer
was left open during the pendency of the case up until trial.3 But like appellant’s
conviction rendered after the jury’s “guilty” verdict, appellant’s acceptance of the
State’s    deferred    adjudication      offer     would    have    rendered      deportation
“presumptively mandatory” under federal law. See Padilla, 559 U.S. at 369

       Federal law provides that an “alien who at any time after admission is
convicted of a crime of domestic violence . . . is deportable.”                  8 U.S.C.A.
§ 1227(a)(2)(E)(i) (West 2017). A “crime of domestic violence” is defined as “any
crime of violence . . . against a person committed by a current or former spouse of

       3
        “Deferred adjudication” may also be referred to as “probation.” See Davis v. State, 968
S.W.2d 368, 369 (Tex. Crim. App. 1998).

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the person.” Id. A “crime of violence” is defined as “an offense that has as an
element the use, attempted use, or threatened use of physical force against the
person or property of another.” 18 U.S.C.A. § 16(a) (West 2015).

      Appellant was charged with assaulting a family member, a Class A
misdemeanor offense. See Tex. Penal Code Ann. § 22.01(a). This offense falls
within the “crime of domestic violence” described by section 1227 and a
conviction for this offense may result in deportation.            See 8 U.S.C.A.
§ 1227(a)(2)(E)(i); 18 U.S.C.A. § 16(a); see, e.g., Ex parte Aguilera, 540 S.W.3d
239, 242, 248, 251(Tex. App.—Houston [1st Dist.] 2018, no pet.) (defendant
pleaded guilty to charge for assault of a family member in exchange for one-year
deferred adjudication; defendant subject to deportation under federal law). For
purposes of deportation, a “conviction” includes deferred adjudication. See 8
U.S.C.A. § 1101(48)(A) (West 2017) (defining “conviction” to include, “if
adjudication of guilt has been withheld, where . . . the alien has entered a plea of
guilty or nolo contendere” and “the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed”).

      Accordingly, had appellant accepted the State’s offer of deferred
adjudication, he nonetheless would have been subject to mandatory deportation
under federal law. See 8 U.S.C.A. §§ 1101(48)(A), 1227 (a)(2)(E)(i); 18 U.S.C.A
§ 16(a); see, e.g., Ex parte Aguilera, 540 S.W.3d at 242, 248, 251. This conclusion
does not support appellant’s contention that “he would have acted differently had
he known” the immigration consequences associated with proceeding to trial —
the deportation consequences were the same whether appellant proceeded to trial
or accepted an offer of deferred adjudication.

      Because the evidence does not show appellant was prejudiced by his trial
counsel’s alleged errors, the trial court’s denial of appellant’s new trial motion

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does not constitute an abuse of discretion.    See Strickland, 466 U.S. at 697;
Seamster, 344 S.W.3d at 594. We overrule appellant’s third issue.

                                  CONCLUSION

      We overrule appellant’s issues on appeal and affirm the trial court’s
judgment.




                                     /s/     Meagan Hassan
                                             Justice


Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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