Opinion issued July 19, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-17-00960-CR
                            ———————————
       EX PARTE JOSE LUIS NASSAR RODRIGUEZ, APPELLANT



                    On Appeal from the 180th District Court
                            Harris County, Texas
                       Trial Court Case No. 1484221-A


                          MEMORANDUM OPINION

      Appellant, Jose Luis Nassar Rodriguez, appeals from the trial court’s denial

of his application for a post-conviction writ of habeas corpus.1 In his application,


1
      See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2015) (providing person
      confined on charge of felony conviction who received community supervision may
      apply for writ of habeas corpus); Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim.
      App. 1993) (“If a misdemeanor judgment is void, and its existence may have
      detrimental collateral consequences in some future proceeding, it may be
      collaterally attacked, whether or not a term of probation was successfully served
appellant argues that (1) he received ineffective assistance of counsel because his

trial counsel failed to accurately advise him regarding immigration and (2) his plea

was involuntary because he did not understand the relevant circumstances about his

immigration status.

      We affirm.

                                   Background

      According to his application, appellant pleaded guilty to burglary of a building

on March 15, 2017, and the trial court sentenced him to community supervision.2

On November 13, 2017, appellant filed an application for writ of habeas corpus

challenging the voluntariness of his guilty plea based on allegedly ineffective

assistance of counsel. Appellant argued that his trial attorney, William Cheadle, did

not provide him with advice that burglary of a building is considered an aggravated

felony under immigration law. Appellant also argued that the plea admonishments

he signed did not provide effective notice of the immigration effects of the plea.

And, the “three pages of the admonishments were not completely and accurately

translated to him.” Appellant further argued that he would not have agreed to

community supervision had he known that he would have been “swiftly removed



      out.”); see also State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston [1st
      Dist.] 2007, pet. ref’d).
2
      See TEX. PENAL CODE ANN. § 30.02 (West Supp. 2017).

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from the community by DHS” and that his plea was involuntary because he did not

understand the immigration consequences of the plea. The trial court denied his

application on November 29, 2017. Appellant timely filed a notice of appeal on

December 14, 2017.3

      The trial court clerk filed the clerk’s record on December 27, 2017. The

reporter’s record in this case was due January 22, 2018. See TEX. R. APP. P. 4.1(a),

31.1. However, the court reporter notified this Court that no reporter’s record had

been taken. On February 9, 2018, appellant requested that we abate the appeal for

the trial court to enter findings of fact and conclusions of law. On February 15, 2018,

we granted appellant’s motion. We received a supplemental clerk’s record with the

trial court’s findings of fact and conclusions of law on March 21, 2018.

                                 Standard of Review

      In reviewing the trial court’s order denying habeas corpus relief, the appellate

court affords “almost total deference to the judge’s determination of the historical

facts that are supported by the record, especially when the fact findings are based on

an evaluation of credibility and demeanor.” Ex parte Wilson, 171 S.W.3d 925, 928

(Tex. App.—Dallas 2005, no pet.); see also Phuong Anh Thi Le v. State, 300 S.W.3d

324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that, in reviewing


3
      See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 8 (West 2015) (providing that if
      application is denied in whole or part, applicant may appeal under Article 44.02 and
      Rule 31 of Texas Rules of Appellate Procedure).
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trial court’s ruling on habeas corpus petition, reviewing court must defer to all of

trial court’s implied factual findings supported by record). The appellate court “will

sustain the lower court’s ruling if it is reasonably supported by the record and is

correct on any theory of law applicable to the case.” State v. Dixon, 206 S.W.3d

587, 590 (Tex. Crim. App. 2006).

      When, as here, an applicant seeks relief under Article 11.072 from an order

that orders community supervision, “the trial judge is the sole finder of fact.” See

Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (citing State v.

Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013)).             In habeas corpus

proceedings, “[v]irtually every fact finding involves a credibility determination,”

and “the fact finder is the exclusive judge of the credibility of the witnesses.” Ex

parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996). Accordingly, we

must afford almost total deference to the habeas court’s findings of fact when those

findings are supported by the record. See Torres, 483 S.W.3d at 43. “We similarly

defer to any implied findings and conclusions supported by the record.” Ex parte

Harrington, 310 S.W.3d 452, 456 (Tex. Crim. App. 2010). However, we review de

novo mixed questions of law and fact that do not depend upon credibility and

demeanor. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.—Houston [1st

Dist.] 2014, no pet.).




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Findings of Fact

     In its findings of fact, the trial court found:

            1.     Defendant hired the attorney of his choice, Mr. William
                   Cheadle.

            2.     Attorney Cheadle’s signature appears on the plea papers
                   including the document entitled “Immigration
                   Admonishments.”

            3.     “Immigration Admonishments” are not routinely included
                   in plea papers in the 180th Criminal District Court but are
                   executed only when there is reason to believe that the
                   Defendant is not a citizen of the United States.

            4.     Applicant’s signature appears on the document
                   “Immigration Admonishments” as well as his initials on
                   the various particular warnings.

            5.     The defendant’s initial on clause (1) on “Immigration
                   Admonishments” expressly asserts that he “freely,
                   knowingly, and voluntary [sic] executed this statement.”

            6.     Attorney Cheadle’s signature appears on the document
                   “Immigration Admonishments.”

            7.     The attorney signature expressly avows that the attorney
                   has “fully advised the above named defendant regarding
                   the immigration consequences” and that “this document
                   was executed by him/her knowingly and voluntarily.”

            8.     Judge Rains accepted this agreed plea.

            9.     Judge Brian Rains’s signature appears on the document
                   “Immigration Admonishments.”

            10.    The judge’s signature expressly states “I have admonished
                   the Defendant of the immigration consequences” and “find
                   that the Defendant’s attorney has advised the defendant
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                   regarding immigration consequences” and “further find
                   that the Defendants [sic] is aware of and understands the
                   immigration consequences.”

            11.    The plea was translated by certified court translator Glenn
                   Dodson.

Conclusions of Law

        In its conclusions of law, the trial court stated,

            1.     Applicant was fully informed              of   immigration
                   consequences prior to his plea.

            2.     Applicant freely and voluntarily entered his plea of guilty.

                                      Discussion

      In the absence of a reporter’s record, an appellate court considering a habeas

corpus application will presume that there was evidence to support the trial court’s

judgment. In re Mott, 137 S.W.3d 870, 875 (Tex. App.—Houston [1st Dist.] 2004,

orig. proceeding). However, in a proceeding to review a denial of an application for

writ of habeas corpus, the applicant still bears the burden of proving that he is

entitled to relief by a preponderance of the evidence. Ex parte Richardson, 70

S.W.3d 865, 870 (Tex. Crim. App. 2002).

      Applicant has not shown that he is entitled to relief. Applicant seeks habeas

relief on the basis that his counsel rendered ineffective assistance of counsel by

failing to properly admonish him of the immigration consequences before he entered

his guilty plea. In effect, he asserts that he did not voluntarily plead guilty.


                                           6
However, the clerk’s record does not include the indictment, the plea agreement, any

written admonishments, or the underlying judgment. Nor is there any record of the

plea hearing.

      Instead, the clerk’s record contains the applicant’s application for writ of

habeas corpus, notice of appeal, and the trial court’s certification of defendant’s right

to appeal. In the information sheet filed by the court reporter, the court reporter

informed this Court that there is no reporter’s record. In the absence of a reporter’s

record, a court reviewing the denial of a habeas application presumes there was

evidence to support the trial court’s judgment. Ex parte McKeand, 454 S.W.3d 52,

54 (Tex. App.—Houston [1st Dist.] 2014, no pet.). The application for writ of

habeas corpus itself is also not supported by any evidence. Applicant neither filed

an affidavit discussing what information his trial counsel gave him regarding

immigration, nor did applicant include an affidavit from his trial counsel. See Ex

parte Cummins, 169 S.W.3d 752, 758 (Tex. App.—Fort Worth 2005, orig.

proceeding) (holding that trial court did not abuse discretion in denying habeas after

applicant offered no evidence supporting allegations).

      Based upon the limited record before us, we conclude that applicant has failed

to meet his burden. See Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim.

App. 2005) (“It is the applicant’s obligation to provide a sufficient record that

supports his factual allegations with proof by a preponderance of the evidence.”);


                                           7
Washington v. State, 326 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2010,

no pet.) (applicant “bears the burden of ensuring that a sufficient record is presented

to show error requiring reversal on appeal.”); see also Ex parte Tovar, 901 S.W.2d

484, 486 (Tex. Crim. App. 1995) (“An applicant seeking relief from the failure to

receive the admonishment required by Art. 26.13(a)(4) must establish that there was

no admonishment given consistent with Art. 26.13(a)(4) or otherwise suggesting the

possibility of deportation, and that the lack of admonishment affected his decision

to enter a plea of guilty.”).

                                     Conclusion

       We affirm the trial court’s order denying appellant’s application for writ

habeas corpus.




                                                     Sherry Radack
                                                     Chief Justice


Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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