Affirmed and Memorandum Opinion filed August 28, 2012.




                                          In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-12-00027-CR
                                 ___________________

                   EX PARTE CARLOS ALEJANDRO RABAGO


                       On Appeal from the 212th District Court
                              Galveston County, Texas
                        Trial Court Cause No. 94CR1750-83


                         MEMORANDUM OPINION

       Applicant Carlos Alejandro Rabago appeals the trial court’s denial of his
post-conviction application for writ of habeas corpus. We affirm.

                                       Background

       Applicant filed an application for writ of habeas corpus under Texas Code of
Criminal Procedure Article 11.072 on September 12, 2011. Applicant alleged that he pled
“no contest” to the offense of indecency with a child on February 6, 1998, and was placed
on deferred adjudication community supervision.         He alleged that he successfully
completed his deferred adjudication in March 2003 but was deported in August 2004
because of his plea. Applicant stated that he was arrested and charged with the federal
offense of illegal re-entry into the United States after he was deported; he is currently in
federal custody.
       Applicant asked the trial court to vacate his plea to indecency with a child and
argued that he was denied effective assistance of counsel because his trial counsel did not
advise him of the deportation consequences of his plea as required by Padilla v. Kentucky,
130 S. Ct. 1473 (2010). Applicant argued that the immigration law and deportation
consequences were clear and his trial counsel was deficient for advising him only that he
may be deported because of his plea instead of advising him that he would be deported
because of his plea. He further argued that prejudice resulted from his trial counsel’s
deficiency because applicant “would have never pled guilty had he known of the
immigration consequences of his plea,” and would have insisted on going to trial.

       The trial court did not hold an evidentiary hearing on Applicant’s application for
writ of habeas corpus. The trial court signed the following order on December 12, 2011:

        Findings of Fact and Conclusions of Law without Evidentiary Hearing on
                         Application for Writ of Habeas Corpus

       This Trial Court finds that there is no necessity for a fact finding hearing
       because there is ample evidence in the record to rule on the relief sought.
       This Trial Court further finds that no controverted previously unresolved []
       facts or issues exist which would entitle Applicant to relief, and that
       Applicant’s claim has no legal merit. This Trial Court Recommends relief
       be denied.

                                           Order

       1. The Trial Court orders the Clerk of this Court to file this Finding and
       Order, and promptly transmit it with the Writ of Transcript to the Clerk of the
       Court of Criminal Appeals, Austin, Texas.

       2. The Clerk or this Court is further ordered to send a copy of this Finding
       and Order to the Applicant and the appellate section of the Galveston County
       Criminal District Attorney’s Office.

This language seems to track the requirements of Article 11.07. The trial court signed a
second order on December 12, 2011:

            First Amended Findings of Fact and Conclusions of Law without
             Evidentiary Hearing on Application for Writ of Habeas Corpus
                                          2
       This Court finds that there is no necessity for a fact finding hearing because
       there is ample evidence in the record to rule on the relief sought. This Court
       further finds that no controverted previously unresolved [] facts or issues
       exist which would entitle Applicant to relief, and that Applicant’s claim has
       no legal merit.

                                           Order

       1. The Relief sought by Applicant is her[e]by DENIED.

       Applicant timely appealed the trial court’s order contending that the trial court erred
by: (1) applying the procedures set out in Article 11.07 of the Texas Code of Criminal
Procedure instead of the procedures set out in Article 11.072; (2) failing to hold a hearing
before denying habeas relief; and (3) failing to issue appropriate findings of fact and
conclusions of law in accordance with Article 11.072 of the Code of Criminal Procedure.
The State did not file a brief.

       This court issued an abatement order on June 4, 2012 directing the trial court to
reduce to writing its findings of fact and conclusions of law on the denial of applicant’s
application for writ of habeas corpus. In accordance with this court’s abatement order, the
trial court filed findings of fact and conclusions of law with this court on June 15, 2012.
The trial court based its findings on the affidavit of applicant’s trial counsel, Roy
Quintanilla, stating as follows:

       1. [Trial counsel’s] affidavit regarding this matter can be found as
          ‘Appendix Four’ in the writ application.

       2. In the mid 1990’s [trial counsel] was a long-time respected member of the
          legal community in Galveston, Texas. In fact his legal reputation as
          such that when County-Court-at-Law Number Three was created in
          Galveston, County, he was appointed to be the judge of the court. He
          was subsequently elected and re-elected by his fellow citizens.

       3. His reputation as an attorney was one of skill and thoroughness. His
          practice was successful and his services were highly sought.



                                              3
       4. In his affidavit [trial counsel], while admitting that the passage of time
          prevents an absolute and specific memory of the events in question, does
          recall that the case was a sexual offense. [Trial counsel] says:

                     . . . I can say that my general custom and practice for many
                     years as a defense lawyer was to advise non-U.S. citizens,
                     especially ones with a serious felony allegation as [Applicant]
                     was fac[]ing, that the immigration consequences of a
                     conviction, deferred adjudication or probation would be
                     deportation. That same advice would have been given prior
                     to a final hearing date and again on the date of the hearing
                     wherein a defendant also acknowledges and signs plea
                     document’s [sic] indicating among other things that they [sic]
                     understood the immigration consequences. In light of my
                     general custom and practice, I believe I would have told
                     [Applicant] the immigration consequences of his plea would
                     be his deportation.

       5. [Trial counsel] does recall meeting with [Applicant] in his office on
          several occasions to discuss his case, including immigration issues and
          consequences.

       6. Obviously, [Applicant’s] denial that [trial counsel] ever told him those
          consequences is self-serving and colored by inability to live within the
          law.

The trial court further issued conclusions of law:

       1. Given [trial counsel’s] reputation for legal skill and thoroughness; the
          seriousness of the crime with which [Applicant] was charged; and [trial
          counsel’s] word as to his practice in this and similar situations; this trial
          court believes [Applicant] was advised of the deportation consequences
          of his plea to such a serious offense.

       2. There was no ineffective assistance of counsel regarding this matter.

       This court reinstated Applicant’s appeal on July 2, 2012, and granted Applicant and
the State time to file additional briefing. Applicant filed an amended brief; the State filed
a brief.



                                              4
                                      Standard of Review

       The standard of review for a trial court’s determination on an application for habeas
corpus is abuse of discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App.
2011). An applicant seeking post-conviction habeas corpus relief has the burden to
establish by a preponderance of the evidence that the facts entitle him to relief. Ex parte
Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). This court must review the
record “in the light most favorable to the trial court’s ruling.” Kniatt v. State, 206 S.W.3d
657, 664 (Tex. Crim. App. 2006). “[R]eviewing courts defer to the trial court’s . . . factual
findings that are supported by the record, even when no witnesses testify and all of the
evidence is submitted in written affidavits.” Ex parte Wheeler, 203 S.W.3d 317, 325-26
(Tex. Crim. App. 2006); see also Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App.
2002) (holding that a deferential standard of review of the trial court’s resolution of the
historical facts from conflicting affidavits was proper).

                                               Analysis

       Applicant raises two issues in his amended appellate brief. In his first issue,
Applicant argues that the trial court erred by “not having a hearing under Texas Rule of
Criminal Procedure Article 11.072 before denying habeas relief” because he alleged “facts
that, if true, might entitle him to relief.”

       Article 11.072 provides that “the trial court may order affidavits, depositions,
interrogatories, or a hearing, and may rely on the court’s personal recollection.” Tex.
Code Crim. Proc. Ann. art. 11.072, § 6(b) (Vernon 2011) (emphasis added). The statute’s
permissive construction means that a hearing is not required. See Ex parte Davila, 530
S.W.2d 543, 545 (Tex. Crim. App. 1975); see also Ex parte Cummins, 169 S.W.3d 752,
757 (Tex. App.—Fort Worth 2005, no pet.) (“While section 6(b) clearly indicates that in
making its determination the trial court may order affidavits, depositions, interrogatories,
or a hearing, it does not require that the trial court do so.”).

                                                  5
        Applicant nonetheless contends that “the trial court should hold a hearing to
determine what advice was given to [Applicant] in this particular case.” In his affidavit,
trial counsel stated what advice he believed he had given Applicant approximately 13 years
ago. Therefore, the affidavit reflects trial counsel’s advice and there is no need for the
trial court to hold a hearing to “determine what advice was given to [Applicant] in this
particular case.” Additionally, considering the passage of time and the fact that trial
counsel could not review Applicant’s file because it was destroyed by Hurricane Ike, a
hearing likely would not reveal anything more than what trial counsel already stated in his
affidavit.

        Applicant also contends that he “has alleged facts, which if true, entitled him to
relief” and trial counsel’s affidavit was insufficient to support the trial court’s denial of his
writ of habeas corpus absent an evidentiary hearing. The factual assertions on which
Applicant relies were controverted. Further, an evidentiary hearing likely would reveal
nothing more about trial counsel’s actions and advice than is already reflected in trial
counsel’s affidavit. In his affidavit, trial counsel stated that he represented Applicant 13
years ago and does not recall all the specifics of his case. Trial counsel also stated that he
could not review Applicant’s file because it was destroyed by Hurricane Ike.

        Accordingly, we overrule Applicant’s first issue.1

        In his second issue, Applicant contends that he established by a preponderance of
the evidence that his trial counsel denied him the right to effective assistance of counsel by
failing to advise him of the deportation consequences of his plea. Applicant argues that he
(1) “declared under the penalty of perjury that [trial] counsel never advised him that his
plea would, as opposed to may, result in his deportation;” and (2) “stated that had he
‘known the immigration consequences’ of his plea, he ‘would have never pled guilty.’”
        1
           In light of our disposition of Applicant’s second issue, we need not address Applicant’s
contention that “it would be proper for this Court to remand this case to the trial court for a hearing” to
consider if Applicant established he was prejudiced by his trial counsel’s allegedly deficient representation.
                                                      6
       To obtain habeas corpus relief on a claim of ineffective assistance of counsel, an
Applicant must meet both prongs of the Strickland2 standard: (1) counsel’s performance
“was deficient; and (2) that a probability exists, sufficient to undermine our confidence in
the result, that the outcome would have been different but for counsel[’s] deficient
performance.” Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012)
(quoting Ex parte White, 160 S.W.3d 46, 49 (Tex. Crim. App. 2004)) (alteration in
original). The Supreme Court has held that representation is constitutionally deficient if
counsel fails to warn a noncitizen client of the certainty of removal when the terms of the
relevant immigration statute are “succinct, clear, and explicit.” Padilla, 130 S. Ct. at
1483. In Padilla, the trial attorney’s failure to advise the defendant that a consequence of
his guilty plea for drug-related charges would be deportation constituted deficient
performance. Id. The Court did acknowledge that immigration issues are complex, and
the certainty of the advice will change with the clarity of the statute. Id.

       Here, the trial court found that Applicant’s trial counsel did properly warn him that
deportation was a consequence of a guilty plea. As a general rule, appellate courts must
give deference to a trial court’s determination of facts, “especially when the trial court’s
fact findings are based on an evaluation of credibility.” Ex parte Garcia, 353 S.W.3d at
787. This court will defer to the factual findings of the trial court “even when no
witnesses testify and all of the evidence is submitted in written affidavits.” Ex parte
Wheeler, 203 S.W.3d at 326; see also Ex parte Thompson, 153 S.W.3d 416, 425 (Tex.
Crim. App. 2005) (the court “will defer to the factual findings of the trial judge even when
the evidence is submitted by affidavit”) (citing Manzi, 88 S.W.3d at 242-44)).

       Even when affidavits conflict, the trial court may resolve questions of historical
facts based upon a credibility determination of the competing affidavits without the need
for a live evidentiary hearing. See Manzi, 88 S.W.3d at 241; see also Ex parte Deckard,

       2
         Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) (setting forth the
requirements for establishing ineffective assistance of counsel).
                                                 7
No. 05-08-01555-CR, 2009 WL 1887327, at *3 (Tex. App.—Dallas Jun 19, 2009, no pet.)
(mem. op., not designated for publication) (“[T]he trial court was not required to believe
the self-serving statements contained in the affidavits of appellant and his father, even if
uncontroverted.”).

         As the finder of fact, the trial court was free to disbelieve all of Applicant’s
testimony, even if that testimony was given by affidavit. See Ex parte Wheeler, 203
S.W.3d at 325-26. The trial court disbelieved Applicant’s assertion that his trial counsel
failed to warn him of the deportation consequences of his plea and stated in its findings of
fact: “Obviously, [Applicant’s] denial that [trial counsel] ever told him those deportation
consequences is self-serving and colored by inability to live within the law.”

         Furthermore, “[t]here is less leeway in an article 11.072 context to disregard the
findings of a trial court” because the trial court is the sole finder of fact in an article 11.072
habeas case. Ex parte Garcia, 353 S.W.3d at 788.

         Based on trial counsel’s affidavit and his reputation as a skilled and thorough
attorney, the trial court concluded that trial counsel warned Applicant that deportation was
a consequence of a guilty plea as required by Padilla. Therefore, we do not disturb the
trial court’s denial of Applicant’s writ of habeas corpus. We overrule Applicant’s second
issue.

                                          Conclusion

         We affirm the trial court’s denial of Applicant’s post-conviction application for writ
of habeas corpus.


                                             /s/       William J. Boyce
                                                       Justice



Panel consists of Justices Boyce, Christopher, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).
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