Opinion issued December 19, 2013




                                     In The
                              Court of Appeals
                                     For The
                          First District of Texas
                            ————————————
                             NOS. 01-13-00520-CR
                                  01-13-00521-CR
                                  01-13-00522-CR
                           ———————————
         EX PARTE ANGEL JOSE SANCHEZ, Applicant-Appellant

                   On Appeal from the 400th District Court
                         of Fort Bend County, Texas
                   Trial Court Cause Nos. 07-DCR-046058,
                    07-DCR-046059, and 09-DCR-052833


                         MEMORANDUM OPINION

      Angel Jose Sanchez appeals from the trial court’s denial of his application

for a writ of habeas corpus.1 Sanchez contends that trial counsel in his underlying

conviction failed to provide accurate immigration advice as required under Padilla

v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), amounting to ineffective
1
      Ex parte Jose Angel Sanchez, Case No. 07-DCR-046059, in the 400th Judicial
      District Court of Fort Bend County, Texas.
assistance of counsel in violation of the sixth amendment to the United States

Constitution and, as a result, rendered his guilty plea involuntary. He further

contends that he was not provided an interpreter, and thus he did not understand

the consequences of the plea proceedings. We hold that the trial court acted within

its discretion in denying the application and affirm.

                                    Background

      In 2008, Sanchez, a citizen of Mexico residing in Texas, was charged with

the offenses of sexual assault of a child and aggravated sexual assault. Through

affidavits provided in connection with the habeas proceeding, Sanchez’s trial

counsel explained they advised Sanchez that he had a strong argument for

exoneration and that his case should be tried. Sanchez, however, rejected their

advice. In explaining his decision to plead guilty to the charges, Sanchez told trial

counsel hat one of his children had just died and he did not want to risk not seeing

his other children again. Sanchez instructed his trial counsel to accept the State’s

plea agreement, and he entered a guilty plea to each charge.          Among other

admonitions made before accepting Sanchez’s guilty pleas, the trial court informed

Sanchez that he would be required to comply with Chapter 62 of the Texas Code of

Criminal Procedure, under which he must

      register and thereafter, under various circumstances, periodically
      verify registration information, with a local law enforcement agency
      in any city or county where Defendant resides, intends to reside,


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      moves to, visits, works, volunteers, or attends class, and in other
      circumstances detailed [in the statute].

The trial court admonished Sanchez that he would be subject to the registration

requirement for life and that failure to comply with the sex offender registration

laws is a felony offense.

      Consistent with Sanchez’s agreement with the State, the trial court assessed

a sentence of two years’ confinement. After Sanchez served his sentence, he was

deported to Mexico. But he came into custody in Fort Bend County again in 2009,

when he was charged with the second-degree felony offense of failure to register as

a sex offender. Sanchez again reached a plea agreement with the State.

      The record shows that the associate judge who presided over Sanchez’s plea

hearing on the failure-to-register charge is fluent in Spanish and regularly

communicates with Spanish-speaking defendants in Spanish when necessary.

Before entering his plea, Sanchez initialed each provision of a “Written Stipulation

and Judicial Confession” reflecting his understanding of the charged offense and

the terms of the plea agreement. He also confirmed that he “consulted fully” with

his attorney before entering his plea and was satisfied that his attorney properly

represented him. Sanchez pleaded nolo contendere to the charge, and the trial

court assessed a three-year sentence of confinement. Sanchez served that sentence

and is currently held on an immigration detainer by United States Immigration and

Customs Enforcement.

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      By order of the trial court, Ralph Gonzalez, who was appointed to represent

Sanchez in connection with the failure-to-register charge, submitted an affidavit in

the habeas proceeding. In that affidavit, Gonzalez recounted his representation of

Sanchez from September 2009, when Sanchez was charged, until Sanchez retained

Kendric Ceasar to represent him. Gonzalez averred that he is fluent in Spanish and

communicated with Sanchez in Spanish. Gonzalez did not have any problem

communicating with Sanchez, and Sanchez never indicated that he had any

problem understanding Gonzalez. According to Gonzalez, Sanchez asked about

the effect of the charge on his immigration status in the United States, and

Gonzalez responded that, because Sanchez was present in the United States

illegally, he was deportable regardless of the outcome of his case. Gonzalez

further informed Sanchez that he should expect to be deported again as a result of

the case if he were to plead guilty or be found guilty, and that he should also

expect to be deported again as a result of his guilty plea to his underlying

convictions.    The record contains no information concerning Ceasar’s

representation of Sanchez.

                                 Habeas Corpus

I.    Applicable Law and Standard of Review

      Sanchez challenges the trial court’s denial of his application for habeas

corpus relief, contending that his trial counsel rendered ineffective assistance by


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failing to accurately inform him, in language that he understands, that his guilty

pleas would make him automatically subject to removal from the United States.

      When reviewing a trial court’s ruling on a habeas corpus application, we

view the evidence presented in the light most favorable to that ruling, and we must

uphold that ruling absent an abuse of discretion. Ali, 368 S.W.3d at 831 (citing Ex

parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on

other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)).

We defer to a trial court’s fact findings in habeas proceedings, particularly when

they are based upon an evaluation of credibility and demeanor.              Ex parte

Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White,

160 S.W.3d 46, 50 (Tex. Crim. App. 2004)); see also Ex parte Wheeler, 203

S.W.3d 317, 324 n.23 (Tex. Crim. App. 2006) (noting that we should also defer to

trial court’s “implicit factual findings” that support trial court’s ultimate ruling);

Peterson, 117 S.W.3d at 819 (noting same). We similarly defer to the trial court’s

application of the law to the facts if that resolution turns upon credibility and

demeanor determinations. Peterson, 117 S.W.3d at 819. If the resolution of the

ultimate question turns on an application of law, we review the determination de

novo. Id.

      Because Sanchez’s habeas application is premised on claims that he received

ineffective assistance of counsel, Strickland v. Washington provides the substantive


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framework for reviewing the trial court’s decision on the merits. To prove a claim

of ineffective assistance of counsel, appellant must show that (1) his counsel's

performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

A reasonable probability is one “sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that his performance falls

within the wide range of reasonable professional assistance or trial strategy. See

Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).

      To meet the second prong of Strickland, the appellant must show that his

trial counsel’s deficient performance damaged his defense to such a degree that

there is a reasonable probability the result of the trial would have been different.

See 466 U.S. at 693. We evaluate this factor while taking into consideration the

totality of representation and the particular circumstances of this case. Thompson,

9 S.W.3d at 813.




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      Appellant has the burden to establish both of these prongs by a

preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998). “An appellant's failure to satisfy one prong of the Strickland test

negates a court’s need to consider the other prong.” Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009).

      An applicant seeking habeas corpus relief based on an involuntary guilty

plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Ex parte Morrow, 952 S.W.2d

530, 535 (Tex. Crim. App. 1997)). The applicant bears the burden to establish that

a reasonable probability exists that, but for counsel’s advice, he would not have

pleaded guilty and would have insisted on going to trial. Ex parte Ali, 368 S.W.3d

827, 835 (Tex. App.—Austin 2012, pet. ref’d). In other words, the applicant must

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

circumstances. Id. (citing Padilla, 559 U.S. at 372, 130 S. Ct. at 1485).

II.   Analysis

      A.     Sexual assault charge
      Sanchez contends that his trial counsel rendered ineffective assistance by not

advising him of the correct elements of the offense of sexual assault of a child,

challenging the State’s proof of the offense, or advising him of the immigration

consequences of his plea, which caused Sanchez to involuntarily enter a guilty


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plea. He further contends that his trial counsel failed to obtain the services of a

court-certified interpreter, who would have explained the plea papers,

admonishments, and waivers to Sanchez in Spanish, and that Sanchez could not

understand the proceedings and the papers he signed. Sanchez characterizes the

Spanish fluency of his trial counsel as “mediocre at best,” and claims that trial

counsel did not adequately explain what was taking place during the proceeding.

      The affidavits provided to the trial court by Sanchez’s counsel directly refute

his allegations of deficiencies in their representation. Counsel attested that they

advised Sanchez in detail about the charge against him and recommended that he

plead innocent and proceed to trial on the charges. In addition, they testified that

they specifically explained the immigration consequences of the plea agreement

proposed by the State.

      The evidence likewise is disputed concerning Sanchez’s ability to

understand the proceedings and his need for an interpreter. Pursuant to Article

38.30(a) of the Texas Code of Criminal Procedure, an interpreter “must be sworn

to interpret for the person charged” on the motion of a party in a criminal

proceeding or on the court’s own motion. TEX. CODE CRIM. PROC. ANN. art.

38.30(a) (West Supp. 2012). If the court does not comply with article 38.30, we

review the error for harm. See Leal v. State, 782 S.W.2d 844, 850 (Tex. Crim.

App. 1989). To show harm, the applicant must identify a specific example of


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actual injury. Frescas v. State, 636 S.W.2d 516, 518 (Tex. App.—El Paso 1982,

no pet.); see also Linton v. State, 275 S.W.3d 493, 509 (Tex. Crim. App. 2009)

(observing that ‘the record reflects that appellant understood the proceedings well

enough to assist in her own defense; [and] moreover, whatever communication

difficulties might have existed between appellant and her trial counsel were not

apparent in the record”; consequently, record did not support court of appeals’

conclusion that interpreters used were constitutionally insufficient to ensure

appellant’s due process rights).

      In his affidavit, lead trial counsel testified that he was born in Spain, is fluent

in Spanish, and has spoken Spanish his entire life. The court found this testimony

credible. No evidence in the record shows that Sanchez moved for a certified

interpreter, nor is there any proof that Sanchez objected to his counsel’s alleged

inability to communicate with him in a way he could understand. The court

admonished Sanchez: “[t]hat if you are not a citizen of the United States of

America, your plea of guilty or nolo contendere for the offense charged may result

in your deportation, the exclusion from admission to this country, or the denial of

naturalization under federal law.” After hearing the court’s admonishments and

consulting with his attorney, Sanchez initialed the blocks corresponding to the

statements “[t]hat I am mentally competent and I understand the charge or charges

alleged against me,” and “[t]hat I understand all of the admonitions given to me by


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the Court and the consequences of my plea.”              Following the defendant’s

stipulations and confession appears a statement prepared by Sanchez’s attorney,

which declares:

      I represent the Defendant in this case. I have consulted with him and
      advised him of his rights. I believe that the Defendant is mentally
      competent to stand trial, that he fully understands the Court’s
      admonitions, and that he is fully aware of the consequences of his plea
      and this document. . . . After fully discussing it with the Defendant, I
      believe this document was knowingly and voluntarily executed by the
      Defendant.
The trial court found Sanchez’s claims that he could not understand the

proceedings to be incredible. Contrary to the contentions in Sanchez’s habeas

application, some evidence in the record shows that Sanchez understood the charge

against him and the consequences of his plea. Further, because Sanchez has not

identified any specific harm resulting from the lack of a court-certified interpreter,

Sanchez has not shown the trial court abused its discretion by denying habeas relief

on this basis.

      Sanchez’s claim that counsel failed to explain the immigration consequences

of his pleas to the sexual assault charge also fails as a matter of law because it pre-

dates the Padilla decision, in which the Supreme Court held that the sixth

amendment requires an attorney for a criminal defendant to provide advice about

the risk of deportation arising from a guilty plea. 559 U.S. at 1486, 130 S. Ct. at

1486. In Chaidez v. United States, the Supreme Court held that Padilla does not


                                          10
apply retroactively. 133 S. Ct. 1103, 1110–11 (2013); Ex parte De los Reyes, 392

S.W.3d 675, 679 (Tex. Crim. App. 2013); Ibarra v. State, ___ S.W.3d ___, ___,

2013 WL 1163967, at *2 (Tex. App.—Houston [1st Dist. 2013, no pet.). As a

result, Sanchez cannot benefit from Padilla’s holding on collateral review.

       Before Padilla, Texas courts considered admonitions about the deportation

consequences of a guilty plea as collateral matters that could not support a claim of

ineffective assistance of counsel. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.

Crim. App. 1997). Further, as an undocumented alien without authorization to

remain in the United States, Sanchez could have been removed from the United

States at any time, even if he had not pleaded guilty to the sex offender charges.

We hold that Sanchez has not borne his burden to demonstrate he received

ineffective legal representation in connection with the sexual assault charge against

him.

       B.    Failure to comply with sex offender registration requirement
       According to Sanchez, his trial counsel in the sex offender registration case

rendered ineffective assistance because, as a Spanish speaker, Sanchez was unable

to understand his counsel’s explanation of the consequences of his plea, and no

interpreter assisted him at the plea hearing.     An alien like Sanchez, who has

previously been removed or deported and reenters the United States, can be

removed again under the earlier removal order; he is not eligible for discretionary


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review in almost all circumstances. See 8 U.S.C. § 1231(a)(5)[3]; Fernandez-

Vargas v. Gonzales, 548 U.S. 30, 34–35 (2006); see also Morales-Izquierdo v.

Gonzales, 486 F.3d 484 (9th Cir. 2007) (“The scope of a reinstatement inquiry

under [section 1231(a)(5)] is much narrower, and can be performed like any other

ministerial enforcement action. The only question is whether the alien has illegally

reentered after having left the country while subject to a removal order.”). Because

Sanchez was and continues to be subject to removal—regardless of his plea to the

registration requirement charge—he cannot, as a matter of law, show that he was

prejudiced by his counsel’s alleged failure to ensure that Sanchez understood that

probable consequence.

                                    Conclusion

      We affirm the trial court’s order denying habeas relief.




                                              Jane Bland
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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