AFFIRMED; and Opinion Filed December 13, 2013.




                                          S In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                       No. 05-13-00841-CR

                           THE STATE OF TEXAS, Appellant
                                        V.
                        JESUS ALBERTO VILLEGAS, JR., Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. WX13-90003

                                MEMORANDUM OPINION
                         Before Justices O”Neill, Lang-Miers, and Evans
                                   Opinion by Justice O’Neill
          The State appeals the trial court’s order granting appellee’s application for writ of

habeas corpus. In a single issue, the State contends the trial court erred in granting appellee’s

application because appellee failed to prove his plea of nolo contendere was involuntary due to

ineffective assistance of counsel. We affirm the trial court’s order.

                                          BACKGROUND

       Appellee was arrested on December 6, 2011 and charged with the state jail felony offense

of theft of property with a value of $1,500 or more but less than $20,000. On October 26, 2012,

appellee entered a negotiated nolo contendere plea to the offense. Pursuant to the plea bargain,

the trial court placed appellee on deferred adjudication community supervision for three years

and assessed a $1,500 fine. Shortly thereafter, appellee was taken into custody by Immigration

and Customs Enforcement (ICE) and is being held for deportation.
       In January 2013, appellee filed an application for writ of habeas corpus alleging his plea

was involuntary due to ineffective assistance of counsel. In his application, appellee stated he is

a citizen of Mexico who has lived in the United States since he was three years old. Appellee

alleged trial counsel failed to inform him that deferred adjudication would be treated as a

conviction for purposes of federal immigration law nor did trial counsel inform him that he faced

automatic deportation if he entered a plea of nolo contendere to the offense charged.

       The trial court conducted a hearing on appellee’s writ application. The same trial judge

who took appellee’s plea presided during the writ hearing. The evidence showed appellee

retained counsel to represent him in the criminal proceedings.         During the course of the

representation, appellee met with three attorneys affiliated with each other—Richard C.

McConathy, Brian Alan Bolton, and Allen Everett Gray, III. The trial court heard testimony

from appellee and Gray. In addition, appellee, Bolton, and Gray submitted affidavits.

       Appellee claimed he met with McConathy once, with Bolton four times, and with Gray

fifteen-to-seventeen times. Appellee testified it was always Gray who accompanied him to

court. Other than filling out a form at the beginning of the representation in which he indicated

he was not a citizen, appellee alleged none of the attorneys inquired about his immigration status,

discussed the immigration consequences of the plea with him, or referred him to an immigration

lawyer. Furthermore, although Bolton explained to him the details of the State’s plea bargain

offer, Bolton did not explain what deferred adjudication entailed or that it would be considered

an aggravated felony conviction for immigration purposes. Appellee admitted he did not pay the

full amount of fees owed to the attorneys and, as a result, Bolton filed a motion to withdraw from

the case. According to appellee, the fee dispute caused Bolton to lose interest in the case and the

possibility of going to trial and appellee’s defenses were never discussed.




                                               –2–
           Appellee testified Gray was present when he filled out the plea paperwork. Gray told

appellee that no one except the government would see his charge. Appellee understood that to

mean that his deferred adjudication would show up only if he tried to work for the government.

Appellee admitted he read the trial court’s written admonishment but he did not understand it to

mean his deportation was a certainty. Appellee further admitted that the trial court orally

admonished him during the plea hearing that his plea rendered him subject to deportation and he

testified he felt concerned but he thought the possibility of deportation had a “really low chance

of happening.” 1 Appellee denied he would have entered his plea had he understood he faced

certain deportation. Appellee swore that his immigration status was the most important thing to

him because his parents and siblings live in Texas and he has no family in Mexico. Appellee

stated that had he understood the immigration consequences, he would have pushed for a plea

bargain to a charge that does not carry deportation consequences or he would have risked the

possibility of receiving a maximum sentence at trial and still being deported if there was a

chance he would be acquitted.

           In his affidavit, Bolton swore all three attorneys appeared at the courthouse for appellee

and had “extensive conversations [with appellee] regarding the alleged evidence in [appellee’s]

case, the merits of his case, and the potential dispositions available to him.” Bolton averred he

“specifically advised [appellee] that he would likely be deported” if he was not a citizen, that

“such matters are solely up to ICE,” that judges handling immigration proceedings view things

differently than state criminal law judges, and that it was important for appellee to consult an

immigration attorney. Bolton stated appellee was advised that his plea would result in a felony

conviction involving moral turpitude. Bolton further stated it was Gray “who thoroughly advised

[appellee] regarding immigration consequences surrounding [appellee’s] plea on the date of

   1
       Although the parties cite in their briefs to the reporter’s record from the plea hearing, it was not filed as part of the record on appeal.



                                                                         –3–
sentencing.” Bolton dismissed as disingenuous appellee’s claim that he would have proceeded to

trial. According to Bolton, appellee “wanted to avoid a conviction at all costs.” Bolton also

stated appellee had failed to pay his legal fees and was in breach of contract. Bolton stated

appellee could not have gone to trial unless he hired another law firm or remitted the fees due,

including the agreed-upon trial fee.

       Gray’s affidavit averred he had reviewed the plea agreement documents with appellee

including the trial court’s written admonishment about the immigration consequences of the plea

that warned appellee his plea was “almost certain to result in” his deportation. Gray averred he

asked appellee if he understood the trial court’s admonition and “if he had discussed the

immigration implications of his case and/or his plea bargain” with Bolton and McConathy. Gray

stated he had explained to appellee that appellee’s deferred adjudication would be treated as a

conviction and that under immigration law, theft is considered a crime of moral turpitude.

       During the writ hearing, Gray testified he appeared in the case on behalf of The Law

Office of Richard C. McConathy for whom he does contract work. Gray testified he never

discussed the issues in the case with appellee and his involvement was limited to appearing on

appellee’s behalf for Bolton and McConathy. Gray described his responsibility as appearing in

court to pass the case when necessary, speaking with the State and transmitting offers to “the

office” and appellee. Gray testified the decision to enter a guilty plea “would have been made

between [appellee] and the office.” Gray testified he was unaware if the State ever offered to

reduce the charge but he admitted “most of the substantive negotiation took place between

[Bolton] and the State, not me.” Gray testified that he first learned appellee was not a citizen

when he and appellee were reviewing the plea paperwork. Gray could not recall the exact advice

he gave to appellee but he recalled the gist of his advice was that “the odds were absolutely

overwhelming that he couldn’t remain in this country” or that deportation was “virtually certain.”

                                               –4–
When pressed on why he did not tell appellee definitively that appellee would be deported, Gray

replied, “Well, things fall through the cracks. I think that I made it clear based on the fact that

deferred is treated as a conviction under immigration law and that theft was a crime of moral

turpitude or an aggravated felony, that his chances were next to nothing.”

       The trial court questioned Gray about how the immigration advice could “fall through the

cracks” and whether he had anything in writing showing appellee had received the required

deportation advice. Gray responded that he ordinarily does that in his office as part of his routine

intake paperwork but in this case, appellee had never come to his office because appellee was

McConathy’s client, and Gray could not testify as to what happened during appellee’s

consultations with McConathy and Bolton. After hearing all the evidence, the trial court vacated

appellee’s guilty plea on the ground it was entered involuntarily.

                                         APPLICABLE LAW

       An applicant for habeas corpus relief must prove his claim by a preponderance of the

evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In post-trial habeas

proceedings in which the applicant received community supervision, the trial judge is the sole

finder of fact. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). The reviewing

court affords almost total deference to the trial court’s factual findings when supported by the

record, especially when those findings are based upon credibility and demeanor.               Id.   An

applicant’s live, sworn testimony is sufficient to uphold the trial court’s determination to grant

relief because the trial court may believe any or all of a witness’s testimony. Id. In reviewing

the trial court’s order, we view the facts in the light most favorable to the trial court’s ruling, and

we uphold the ruling absent an abuse of discretion. Kniatt, 206 S.W.3d at 664. This deferential

review applies even if the trial court’s findings are implied rather than explicit and based on

affidavits rather than live testimony. Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim.

                                                 –5–
App. 2006). If the resolution of the ultimate question turns on an application of legal standards,

we review the determination de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.

2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim.

App. 2007).

       As appellee points out in his brief, the trial court did not make findings of fact and

conclusions of law in this case. See TEX. CODE CRIM. PROC. ANN. art. 11.072(7)(a) (West Supp.

2013). The record does not show that either party brought the failure to make express findings to

the trial court’s attention. In the absence of express findings of fact, we will impute implied

findings of fact that support the ruling when such implied findings are both reasonable and

supported by the record. See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005).

       To obtain relief on the ground of ineffective assistance of counsel, appellee 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.

See Padilla v. Kentucky, 559 U.S. 356, 366 (2010); Strickland v. Washington, 466 U.S. 668,

687–88, 694 (1984). In the context of a complaint about counsel’s plea advice, appellee must

show (1) counsel’s plea advice did not fall within the range of competence demanded of

attorneys in criminal cases and (2) there is a reasonable probability that, but for counsel’s errors,

appellee would have insisted on going to trial rather than pleading guilty. Ex parte Harrington,

310 S.W.3d 452, 458 (Tex. Crim. App. 2010).

       Without conceding that appellee’s legal representation was deficient or that he was not

admonished properly, the State acknowledges this Court’s deference to the trial court’s

credibility determinations and limits its appellate argument to contending appellee failed to show

he suffered any prejudice under the second Strickland prong. Under the second prong of the test,

a reasonable probability is a probability sufficient to undermine confidence in the outcome.

                                                –6–
Strickland, 466 U.S. at 694. In the context of a plea-bargained guilty plea, the applicant must

convince the court that a decision to reject the plea bargain would have been rational under the

circumstances. See Padilla, 559 U.S. at 372. The defendant need not show he would have

received a more favorable outcome at trial. Johnson, 169 S.W.3d at 231.

       Inaccurate advice regarding a non-citizen defendant’s prospective deportation may

constitute ineffective assistance. See Padilla, 559 U.S. at 366. When the consequences are “not

succinct and straightforward,” counsel’s duty is to advise the defendant of the possibility that the

plea may carry a risk of adverse immigration consequences. Id. at 369. When, however, federal

immigration law clearly specifies that the defendant will be deported, counsel must affirmatively

and correctly advise the defendant about immigration consequences of the plea. Id.; see also Ex

parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012).

       Under federal immigration law, deferred adjudication is considered to be a conviction if

the defendant entered a guilty or no-contest plea and punishment was assessed. See 8 U.S.C.A. §

1101(a)(48)(A) (West 2005).       Federal immigration law provides an alien is automatically

deportable if he commits an aggravated felony at any time after admission to the United States.

See id. at § 1227 (a)(2)(iii). Theft offenses for which the term of imprisonment exceeds one year

are considered aggravated felonies under federal law. See id. at § 1101(a)(43)(G). An alien may

also be deported if he is convicted within five years of admission to the United States of “a crime

involving moral turpitude . . . for which a sentence of one year or longer may be imposed . . . .”

See id. at § 1227(a)(2)(A)(i).

                                            ANALYSIS

       The State first contends appellee failed to prove his claim because the record contains

sufficient evidence of his guilt in the form of an arrest affidavit prepared by an Addison Police




                                                –7–
Department investigator and no evidence of any factual or legal defenses to the claim.        We

disagree.

       There is little evidence reflecting the merits of the case. The record shows appellee

confessed to an investigator but the record is silent on the content and circumstances of the

confession. Appellee suggests he could have recanted the confession or there could be grounds

for suppressing it. Appellee testified none of the attorneys ever discussed his possible defenses

with him. Appellee testified the computers he allegedly stole were used. There is no evidence in

the record of their fair market value. Appellee is being held for deportation for committing an

aggravated felony. If the fair market value of the computers was less than $1,500, then the

offense would be a Class A misdemeanor rather than an aggravated felony for immigration

purposes. See TEX. PENAL CODE ANN. §§ 31.03(e)(3), (4)(A) (West Supp. 2013); TEX. PENAL

CODE ANN. § 31.08(a)(1) (West 2011); Simmons v. State, 109 S.W.3d 469, 473 (Tex. Crim. App.

2003) (offering definition of “fair market value”). On the record presented, we cannot agree

with the State that the record shows appellee’s guilt and a lack of defenses.

       Citing Ex parte Moreno, 382 S.W.3d 523 (Tex. App.—Fort Worth 2012, pet. ref’d), the

State next contends appellee’s actions belie his statement that his immigration status was his

most important consideration. The State points out appellee did not take any steps to legalize his

status in the United States in the nineteen years he has been here, he never brought up his

immigration status with his attorneys, he admits he read and understood the trial court’s written

deportation admonishment but made no inquiries about it, and he proceeded with the plea despite

the warnings he received about deportation.

       We note that the nineteen-year period of inaction the State references begins when

appellee was three years old. Moreover, the record shows appellee entered his plea under the

belief that he was not being convicted, but rather was avoiding a conviction, and his plea would

                                                –8–
affect him only if he applied for a job with the government. The warnings and admonitions the

State contends appellee should have heeded did not include the definitive statement that he faced

certain deportation and thus were insufficient as a matter of law. See Padilla, 559 U.S. at 369.

Finally, we note that Moreno is distinguishable from the present case because the trial court in

Moreno denied relief on Moreno’s writ application. See Moreno, 382 S.W.3d at 525.                In

affirming the trial court’s decision, the court in Moreno stated it was deciding the case “based

upon our deferential review of the trial court decision that appellant failed to prove the prejudice

requirement of the Strickland test.” Id. at 527. The reviewing court supported the trial court’s

“judgment call” that the applicant failed to prove he would not have pleaded guilty but for trial

counsel’s allegedly deficient conduct. Id. at 530. We also apply a deferential standard of review

but in this case the trial court concluded appellee was credible.

       Finally, citing Moreno again, the State contends the record does not support appellee’s

protestations that had he known he would be deported, he would have taken the case to trial or

pushed for a plea bargain to a charge without deportation consequences. The State points out

there is no evidence the State would have offered a better deal for a plea to a non-deportable

offense and appellee’s three years of deferred adjudication is considerably less onerous than the

maximum two year sentence appellee could have received at trial. Moreover, the State argues,

appellee is an illegal immigrant subject to deportation at any time including after being acquitted

at trial. See Guerrero, 400 S.W.3d at 588–89 (concluding prospect of removal could not have

reasonably affected undocumented immigrant’s decision to waive counsel and plead guilty

because he faced deportation even if he was acquitted at trial).

       There is no evidence in the record regarding how flexible the State was willing to be in

negotiating appellee’s plea bargain. Gray testified he relayed offers from the State and Bolton

handled plea negotiations.     Thus, it appears some negotiations occurred.        Without further

                                                –9–
evidence, we cannot adopt the State’s supposition that the plea bargain terms were inflexible

especially if appellee demonstrated a credible resolve to proceed to trial to avoid the drastic

consequence of certain deportation.

        We further reject the State’s position that the plea bargain was particularly attractive

when weighed against the possibility of losing at trial and facing a maximum sentence. The

defendant in Moreno faced first- and second-degree felony charges for possession with intent to

deliver cocaine and possession of cocaine. See Moreno, 382 S.W.3d at 524. Moreno’s plea

bargain involved dropping the first-degree felony charge and pleading guilty to the less serious

possession offense. See id. Thus, Moreno faced a risk of first-degree felony punishment if he

proceeded to trial and his guilty plea was traded for a substantial benefit. In contrast, appellee

risked a maximum of two years in state jail if he proceeded to trial. See TEX. PENAL CODE ANN.

§ 12.35 (West 2011) (establishing the penalty range for a state jail felony). Appellee testified he

has a clean record except for the theft charge. The trial court could have reasonably assumed

that rejecting the plea bargain and proceeding to trial would have carried little risk for a first-time

offender beyond the plea-bargained result appellee actually obtained.

        We also reject the State’s contention that an acquittal would be meaningless in light of

appellee’s status as an undocumented alien. But for his conviction in this case, appellee falls

within the class of undocumented immigrants entitled to deferred action on removal proceedings.

See Crane v. Napolitano, 920 F.Supp.2d 724, 729–30 (N.D. Tex. 2013) (explaining background

and requirements for June 15, 2012 directive entitled “Exercising Prosecutorial Discretion With

Respect to Individuals Who Came to the United States as Children” issued by Secretary of

Homeland Security Janet Napolitano). Appellee raised the issue of deferred action and testified

about his eligibility.




                                                –10–
                                          CONCLUSION

       After reviewing the evidence under the appropriately deferential standard of review, we

cannot conclude the trial court abused its discretion in determining appellee satisfied his burden

of proof to show a decision to reject the plea bargain would have been rational under the

circumstances. See Padilla, 559 U.S. at 372. Thus, we hold the trial court did not abuse its

discretion in concluding appellee’s guilty plea was involuntary due to ineffective assistance of

counsel. See id. at 366–69. We overrule the State’s sole issue.

       We affirm the trial court’s order granting relief on appellee’s application for writ of

habeas corpus.




                                                   /Michael J. O'Neill/
                                                   MICHAEL J. O’NEILL
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47


130841F.U05




                                              –11–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

THE STATE OF TEXAS, Appellant                         On Appeal from the 203rd Judicial District
                                                      Court, Dallas County, Texas
No. 05-13-00841-CR          V.                        Trial Court Cause No. WX13-90003.
                                                      Opinion delivered by Justice O’Neill.
JESUS ALBERTO VILLEGAS, JR.,                          Justices Lang-Miers and Evans participating.
Appellee

       Based on the Court’s opinion of this date, the order of the trial court granting relief on
appellee’s application for writ of habeas corpus is AFFIRMED.


Judgment entered this 13th day of December, 2013.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O’NEILL
                                                    JUSTICE




                                               –12–
