      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00215-CR



                                    Salvador Simon, Appellant

                                                   v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
    NO. D-1-DC-09-200600-A, HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In 2009, appellant Salvador Simon pleaded guilty to committing the misdemeanor

offense of attempted possession of a controlled substance and was placed on community supervision

for a period of two years. It is relevant to this appeal that Simon is an undocumented immigrant—he

was arrested by Immigration and Customs Enforcement (ICE) in 2016, detained without bond as a

result of his 2009 conviction, and subjected to removal proceedings.1 Simon subsequently filed an

application for writ of habeas corpus, challenging the legality of his 2009 conviction by asserting that

he had received ineffective assistance of counsel prior to pleading guilty. Following a hearing, the

district court denied relief. In two related points of error on appeal, Simon asserts that counsel had

“affirmatively misadvised” him of the immigration consequences of his guilty plea and that Simon

suffered prejudice as a result. We will affirm the order denying relief.


       1
           See 8 U.S.C. §§ 1182(a)(2)(A)(i), 1227(a)(2)(B)(i).
                                        BACKGROUND

               The record reflects that Simon had initially been charged with cocaine possession,

a felony offense. According to the arresting officer’s probable-cause affidavit, a copy of which was

attached to Simon’s habeas application, the cocaine had been found inside Simon’s vehicle during

a traffic stop, in a box of condoms located inside the glove box.

               At the habeas hearing, Simon testified that prior to pleading guilty, he had spent

approximately three to four minutes talking to his appointed trial counsel, Antonio Wehnes.

According to Simon, Wehnes did not discuss the specific facts of the case with him. Simon also

claimed that he had told Wehnes that the cocaine did not belong to him and that Wehnes “didn’t ask

[him] anymore questions” after that.

               A copy of the transcript of the plea hearing was attached to Simon’s habeas

application. The record reflects that during that proceeding, the following occurred:


       [The court]:    Are you Salvador Simon, who is charged in this case?

       [Simon]:        Yes.

       [The court]:    Do you understand you’re charged by indictment with possession of
                       a controlled substance, cocaine, in an amount of less then one gram?

       [Simon]:        Yes.

       ....

       [The court]:    The State has an election here?

       [Prosecutor]: Yes, Your Honor. We’ll proceed on a lesser included, a misdemeanor
                     of attempted possession of a controlled substance.

       [The court]:    How do you plead to that lesser offense?

                                                 2
       [Simon]:        Guilty.

       ....

       [The court]:    Is your guilty plea given freely and voluntarily?

       [Simon]:        Yes.

       [The court]:    Is it?

       [Interpreter]: He said yes.

       [The court]:    Okay. Do you understand the punishment range for a Class A
                       misdemeanor offense as it is set out in State’s Exhibit 1, the plea
                       papers I’m showing you?

       [Simon]:        Yes.

       [The court]:    Do you understand all of your rights and the waivers of rights as set
                       out in State’s Exhibit 1?[2]

       [Simon]:        No.

       [Wehnes]:       Let me try, Your Honor.

       (Whereupon a conversation in Spanish occurred between defense counsel and
       defendant.)[3]

       [Simon]:        Yes.

       [The court]:    Great. You do understand all of your rights and waivers of rights as
                       set out in State’s Exhibit 1?

       2
           State’s Exhibit 1, the plea agreement, included the following admonishment: “If you are
not a citizen of the United States of America, a plea of guilty or nolo contendere for this offense may
result in your deportation, your exclusion from admission to this country, or your denial of
naturalization under federal law.”
       3
         Simon testified that during this conversation, Wehnes had told him that “when the Judge
asked me that I should say yes.” Simon also testified that Wehnes had told him “just to say yes to
everything” that the court asked.

                                                  3
[Simon]:       Yes.

[The court]:   Did you go over these rights and the waivers of rights in State’s
               Exhibit 1 with your attorney, Mr. Wehnes?

[Simon]:       Yes.

[The court]:   And that was in the Spanish language, correct?

[Simon]:       Yes.

[The court]:   Mr. Wehnes, you speak English and Spanish, correct?

[Wehnes]:      Yes, Judge.

....

[The court]:   What is the recommendation?

[Prosecutor]: One year of probation, two years of community supervision, pay all
              fines and complete 100 hours of community service restitution,
              restitution, pay $600 and complete counseling.

[The court]:   Mr. Simon, is that your understanding of the agreement you’ve
               reached in this case?

[Simon]:       Yes.

[The court]:   And have you discussed this agreement with Mr. Wehnes?

[Simon]:       Yes.

[The court]:   And you’re satisfied with the recommendation he has provided you
               on this case?

[Simon]:       Yes.

[The court]:   And you’ve had sufficient time—well, he’s had sufficient time to
               represent you?

[Simon]:       Yes.



                                        4
       [The court]:    I’ll follow the recommendation. I find you guilty of attempted
                       possession of a controlled substance, cocaine, in an amount of less
                       than one gram, a Class A misdemeanor. Do you have anything else
                       to say before we proceed with sentencing?

       [Simon]:        Can I leave the country, because I was about to depart for—

       [The court]:    Have you talked to him, Mr. Wehnes?

       [Wehnes]:       Yes. I told him to come talk to me this weekend.

       [Simon]:        Yeah, I’m going to talk to him.[4]

       [The court]:    I sentence you to confinement in jail for one year and a $600 fine.
                       The jail sentence is suspended. You’re now placed on community
                       supervision for two years. . . . Do you have any questions?

       [Simon]:        No.

       [The court]:    Okay. Good luck to you, Mr. Simon.


Simon testified that he had pleaded guilty because Wehnes had told him that if he pleaded guilty,

then he “wouldn’t go to jail.” Simon further testified that Wehnes had told him “that it was all going

to work out.” On cross-examination, Simon acknowledged that at the time of his plea, he wanted

to avoid a jail sentence. Additionally, when the State asked Simon if he was “happy that [he] got

probation on this case on a misdemeanor instead of facing possible jail or a possible felony,” Simon

answered in the affirmative.

               In an affidavit that was attached to his habeas application, Simon made additional

allegations, including that Wehnes knew at the time of the plea hearing that Simon was from Mexico




       4
         Simon testified that he did not talk with Wehnes that weekend or at any time following the
plea hearing.

                                                  5
and was not a United States citizen; that Wehnes “never mentioned immigration consequences” and

“never told [Simon] that [he] should consult with an immigration attorney”; and that “[n]either the

judge nor [Wehnes] warned [Simon] that this would bring [him] immigration problems.” Simon

also asserted that Wehnes’s failure to warn him of immigration consequences “led [him] to believe

that this agreement would not affect [his] immigration possibilities.”

                Wehnes also testified at the habeas hearing. Wehnes recounted that when he was

assigned to Simon’s case, he knew that Simon was an undocumented immigrant and was aware of

the collateral consequences that apply to undocumented immigrants who are convicted of drug

crimes, including deportation. Although Wehnes did not have a specific recollection of the events

that occurred at Simon’s plea hearing, he was able to recall his standard procedure in similar plea-

bargain cases at the time. Wehnes explained that he would review with his Spanish-speaking clients

the rights and waivers specified in the plea paperwork, including the right to a jury trial and the

admonishment to non-citizens of the potential immigration consequences of a guilty plea.5 When

asked about Simon’s contentions that Wehnes had “told him to just say yes to whatever the Judge

tells him,” “didn’t explain anything to him,” and “didn’t answer his questions,” Wehnes testified,

“No, that does not sound right to me.” The State also elicited testimony from Wehnes that his

standard practice included informing his non-citizen clients that drug convictions had definite

immigration consequences:


       Q:       I want to ask you, the defendant says that you didn’t go over any of his
                immigration consequences with him. I know you testified that you were


       5
           See supra n.2.

                                                 6
                aware at the time of 2009, that any kind of drug case was a permanent severe
                immigration consequence, correct?

        A.      Correct.

        Q.      Would you have gone over that with a client from Latin America?

        A.      Well, in the plea forms, it says “may” have consequences. I always say, you
                are never going to be able to if it’s a drug case. The “may” I feel is totally
                inappropriate in this type of plea.

        Q.      So you tell clients that there will be immigration consequences?

        A.      Totally.


                At the conclusion of the habeas hearing, the district court denied relief and later made

findings of fact and conclusions of law, including that Simon’s testimony was not credible, that

Wehnes’s testimony was credible, and that counsel’s performance was not deficient. This appeal

followed.


                                    STANDARD OF REVIEW

                In reviewing a trial court’s decision to grant or deny habeas corpus relief, we view

the facts in the light most favorable to the trial court’s ruling and uphold that ruling absent an abuse

of discretion.6 A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without

reference to any guiding rules or principles.7 We are not to reverse the trial court’s ruling unless




       6
        See Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013); Ex parte Wheeler,
203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex.
App.—Austin 2012, pet. ref’d).
       7
           State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016); Ali, 368 S.W.3d at 830.

                                                   7
the decision “is so clearly wrong as to lie outside that zone within which reasonable persons

might disagree.”8

                 “An applicant for a post-conviction writ of habeas corpus bears the burden of proving

his claim by a preponderance of the evidence.”9 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.”10 Thus, we are to afford almost total deference to a trial court’s factual

findings when supported by the record, especially when those findings are based upon credibility and

demeanor.11 We afford the same amount of deference to the trial court’s application of the law to

the facts, to the extent that the resolution of the ultimate question turns on an evaluation of credibility

and demeanor.12


                                              ANALYSIS

                 In two related points of error, Simon asserts that he received ineffective assistance

of counsel prior to pleading guilty and that the district court abused its discretion in denying habeas




        8
        Balderas v. State, 517 S.W.3d 756, 798 (Tex. Crim. App. 2016); Robisheaux v. State,
483 S.W.3d 205, 217 (Tex. App.—Austin 2016, pet. ref’d).
        9
        Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (citing Ex parte Richardson,
70 S.W.3d 865, 870 (Tex. Crim. App. 2002)).
        10
             Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996); Ali, 368 S.W.3d at 830.
        11
             Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011).
        12
          Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled
in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).

                                                    8
relief for that reason.13 The two-part Strickland v. Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel.14 Under the first prong of the test, “a habeas

applicant must show, by a preponderance of the evidence, that ‘counsel’s performance was

deficient.’”15 In other words, “[t]he applicant must show that counsel’s performance failed to satisfy

an objective standard of reasonableness under prevailing professional norms.”16 “A reviewing court

must assess reasonableness under the circumstances of the particular case ‘viewed as of the time of

counsel’s conduct.’”17 “The presumption is that counsel ‘rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.’”18 “An applicant who

cannot overcome this presumption by a preponderance of the evidence will not succeed in his Sixth

Amendment claim.”19

                  Under the second prong of the Strickland test, the applicant “must show that there is

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

would have been different.”20 “A reasonable probability is a probability sufficient to undermine

       13
            See U.S. Const. amend. VI.
       14
         Hill v. Lockhart, 474 U.S. 52, 57–59 (1985) (citing Strickland v. Washington, 466 U.S. 668,
687–88, 694 (1984)); Ali, 368 S.W.3d at 830.
       15
          Ex parte Bowman, 533 S.W.3d 337, 349 (Tex. Crim. App. 2017) (quoting Strickland,
466 U.S. at 687; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)).
       16
            Id. at 349–50.
       17
            Id. at 350 (quoting Strickland, 466 U.S. at 688, 690).
       18
            Id.
       19
            Id.
       20
            Strickland, 466 U.S. at 694.

                                                    9
confidence in the outcome.”21 “In the context of a collateral challenge to a guilty plea, the focus of

the prejudice inquiry is on ‘whether counsel’s constitutionally ineffective performance affected the

outcome of the plea process,’ and on whether a defendant has shown that ‘but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.’”22


Deficient performance

                   Simon’s specific complaint on appeal is that Wehnes “affirmatively misadvised” him

of the immigration consequences of his guilty plea. “In Padilla v. Kentucky, the Supreme Court held

that the Sixth Amendment requires an attorney for a criminal defendant to advise his client of the

risk of ‘automatic’ deportation as a consequence of a guilty plea.”23 “But Padilla announced a new

rule, so it does not apply retroactively to the collateral review of a state criminal conviction that was

final when the Padilla opinion was issued in 2010.”24 Because Simon’s conviction became final in

2009, Padilla does not apply here.25

                   However, the Court of Criminal Appeals has recently held, consistent with United

States Supreme Court precedent, that a defendant whose conviction became final prior to Padilla

may nonetheless bring a claim that his trial counsel “affirmatively misadvised” him of the


        21
             Id.
        22
             Torres, 483 S.W.3d at 43 (quoting Hill, 474 U.S. at 59).
        23
         State v. Guerrero, 400 S.W.3d 576, 587 (Tex. Crim. App. 2013) (citing 559 U.S. 356,
367–68 (2010)).
        24
             Id. (citing Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013)).
        25
             See De Los Reyes, 392 S.W.3d at 679 (citing Chaidez v. United States, 568 U.S. 342, 358
(2013)).

                                                   10
immigration consequences of his guilty plea.26 In other words, even prior to Padilla, “when [an]

attorney rendered immigration advice, which he was under no obligation to render, he had a duty to

state the law correctly.”27 Stating the law incorrectly, i.e., providing “affirmative misadvice,” may

give rise to a cognizable claim for ineffective assistance of counsel independent of Padilla.28

                   As an initial matter, the State argues that Simon waived his “affirmative misadvice”

claim in the court below. At the beginning of the habeas hearing, the State and the district court

asked Simon to clarify the nature of his complaint. The record reflects that the following occurred:


        [State]:          I just wanted to clarify with the Applicant. I believe that the two
                          grounds that were raised in the writ was that trial counsel didn’t
                          explain immigration consequences and that trial counsel didn’t talk
                          about the possible illegal search [of Simon’s vehicle29].


        26
         See Ex parte Garcia, 547 S.W.3d 228, 2018 Tex. Crim. App. LEXIS 132, at *4–5 (Tex.
Crim. App. May 9, 2018) (citing Lee v. United States, 137 S. Ct. 1958 (2017)).
        27
             See id.
        28
           See id. (citing Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012);
State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991)).
        29
            In his habeas application and at the hearing, Simon also argued that counsel was
ineffective for failing to file a motion to suppress the cocaine that was found in the vehicle’s glove
box following Simon’s arrest. See Arizona v. Gant, 556 U.S. 332, 351 (2009) (restricting scope of
automobile searches incident to arrest to areas of vehicle that are “within reaching distance” of
arrestee). To the extent that Simon has carried forward this argument on appeal, we observe, as did
the court below, that Gant was decided after Simon had pleaded guilty, and it is well established that
counsel should not be declared ineffective when counsel’s claimed error is based on unsettled law.
See, e.g., State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013); Ex parte Chandler,
182 S.W.3d 350, 358–59 (Tex. Crim. App. 2005); Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim.
App.1998); see also Ex parte Martinez, No. 03-15-00334-CR, 2016 Tex. App. LEXIS 9905, at *8–9
(Tex. App.—Austin Aug. 31, 2016, no pet.) (mem. op., not designated for publication) (“Although
‘[i]gnorance of well-defined general laws, statutes and legal propositions is not excusable and such
ignorance may lead to a finding of constitutionally deficient assistance of counsel,’ the ‘specific legal
proposition must be “well considered and clearly defined.”’” (quoting Chandler, 182 S.W.3d

                                                    11
                      My understanding today is, that what we’re really going to focus on
                      is counsel’s investigation or discussion of defenses and not whether
                      or not he advised his client about immigration consequences. I just
                      want to get that on the record. Is that true that that’s the ground we
                      are here for?

       [Simon]:       That’s correct.

       [State]:       So it’s not a Padilla claim? It’s not an immigration claim anymore?

       [The court]:   So it has nothing to do with Padilla, particularly, with not so much
                      the failure to go over with him immigration consequences. I think the
                      record in that respect speaks for itself.

                      But with respect to any misadvice that was given to him that is not
                      reflected in the record, is that something that you want to go over
                      here?

       [Simon]:       Your Honor, really the only way immigration, which is a collateral
                      consequence, plays into this is that that’s the reason he is here. He
                      waited seven years only because it was when immigration picked him
                      up on a separate matter that it was put in his face that he had a drug
                      conviction. So it’s a permanent infirmity for immigration to have a
                      drug crime. He can never immigrate and he is permanently barred
                      from this country. So now that’s a collateral consequence that Mr.
                      Wehnes, because it was pre-Padilla, didn’t have the duty to explain
                      immigration consequences. But immigration does play into why he
                      is here today.

       [The court]:   Okay. You can proceed how you would like to, and then I’ll take up
                      all of the issues as they arrive.


At no point during the habeas hearing did Simon argue that Wehnes had “affirmatively misadvised”

him of the immigration consequences of his guilty plea. Additionally, at the conclusion of the

hearing, the district court stated that although “the original writ was really about whether or not




at 358)).

                                                12
[Simon] was given immigration warnings and told of immigration consequences,” the court

was “not going to address that because you’ve withdrawn that issue.” Simon did not object to the

district court’s decision. Accordingly, we agree with the State that Simon waived this issue in the

court below.30

                 Moreover, even if the issue had been preserved, we could not conclude on this record

that the district court abused its discretion in failing to find that Wehnes had “affirmatively

misadvised” Simon. As discussed above, “affirmative misadvice” claims apply to cases in which

counsel misstated the law.31 The district court would not have abused its discretion in finding that

Wehnes made no such misstatements, at least none that were reflected in the record. In contending

that Wehnes had affirmatively misadvised him, Simon places significance on Wehnes’s statement

during the plea colloquy that he had told Simon “to come talk to [him] this weekend” in response

to Simon asking the court if he could “leave the country.” However, as the State observes, “it is not

clear that this exchange had anything to do with immigration at all,” as Simon may have been

inquiring as to some matter other than immigration consequences, such as any travel restrictions that

he might face while on probation. But even if Simon’s question concerned the immigration



       30
          See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002);
Ex parte Roldan, 418 S.W.3d 143, 146 n.3 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
       31
          See, e.g., Lee, 137 S. Ct. at 1963 (defendant “repeatedly asked [counsel] whether he would
face deportation as a result of the criminal proceedings”; counsel advised defendant incorrectly that
“he would not be deported as a result of pleading guilty”); Garcia, 2018 Tex. Crim. App. LEXIS 132,
at *1 (“Garcia asked his attorney whether there would be adverse immigration consequences if he
took the plea offer because he was a lawful permanent resident, and counsel responded that he
‘would probably be okay’ and that ‘the charge would probably not result in deportation.’”); Ex parte
Arjona, 402 S.W.3d 312, 316 (Tex. App.—Beaumont 2013, no pet.) (counsel “volunteered advice”
to defendant on possible immigration consequences of pleading guilty).

                                                  13
consequences of his plea, it would not be outside the zone of reasonable disagreement for the district

court to have found that the above exchange suggested, at most, a failure to advise Simon of

immigration consequences. And again, any such failure would not have constituted ineffective

assistance of counsel prior to Padilla.32

                Simon also places significance on his testimony that Wehnes had told him, during the

plea hearing, “that it was all going to work out.” It would not be outside the zone of reasonable

disagreement for the district court to have found that this statement was ambiguous and that Wehnes

was referring to something other than immigration consequences, such as Simon receiving probation

instead of a jail sentence if he pleaded guilty. Moreover, Wehnes testified that it was his standard

practice in similar plea-bargain cases to review with his Spanish-speaking clients the rights and

waivers specified in the plea paperwork, including the deportation consequences for non-citizens

convicted of drug crimes. The district court would not have abused its discretion in finding that

Wehnes had likely followed that practice in Simon’s case and had warned him of the immigration

consequences of his guilty plea. The district court found Wehnes’s testimony credible and Simon’s

testimony not credible, and we are to defer to those credibility determinations. Additionally, we

observe that in Simon’s affidavit, he stated that Wehnes “never mentioned immigration

consequences,” which is contrary to Simon’s claim that Wehnes had “affirmatively misadvised” him

of those consequences. We conclude that the record supports a finding by the district court that

Simon failed to prove by a preponderance of the evidence that Wehnes had “affirmatively




       32
            See De Los Reyes, 392 S.W.3d at 679.

                                                 14
misadvised” him of the immigration consequences of his guilty plea, and the district court would not

have abused its discretion in denying Simon’s habeas application for that reason.33


Prejudice

                  The district court also would not have abused its discretion in finding that Simon had

failed to prove prejudice. Again, “when a defendant claims that his counsel’s deficient performance

deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by

demonstrating a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.’”34 Stated another way, he “must convince the court

that a decision to reject the plea bargain would have been rational under the circumstances.”35

“Courts should not upset a plea solely because of post hoc assertions from a defendant about how

he would have pleaded but for his attorney’s deficiencies.”36 “Judges should instead look to

contemporaneous evidence to substantiate a defendant’s expressed preferences.”37 Factors to

consider in the analysis include “the evidence supporting an applicant’s assertions, the likelihood




       33
          See Roldan, 418 S.W.3d at 147–48; see also Ex parte Brumant, No. 14-15-00337-CR,
2015 Tex. App. LEXIS 10490, at *10–11 (Tex. App.—Houston [14th Dist.] Oct. 13, 2015, pet.
ref’d) (mem. op., not designated for publication) (rejecting similar affirmative-misadvice claim);
Ex parte Tavakkoli, No. 09-13-00082-CR, 2013 Tex. App. LEXIS 11989, at *18–20 (Tex.
App.—Beaumont Sept. 25, 2013, pet. ref’d) (mem. op., not designated for publication) (same).
       34
            Lee, 137 S. Ct. at 1965 (quoting Hill, 474 U.S. at 59).
       35
            Padilla, 559 U.S. at 372 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)).
       36
            Lee, 137 S. Ct. 1967.
       37
            Id.

                                                   15
of his success at trial, the risks the applicant would have faced at trial, the benefits received from the

plea bargain, and the trial court’s admonishments.”38

                  Initially, we observe that the record reflects that Simon was an undocumented

immigrant at the time of his plea hearing. Therefore, unlike the defendants in Padilla and Lee, who

were lawful permanent residents at the time of their hearings and thus not subject to deportation until

after they had pleaded guilty, Simon could have been deported even if he had gone to trial and been

acquitted.39 The district court would not have abused its discretion in finding that Simon’s status as

an undocumented immigrant who was already subject to removal made it less likely that the

“prospect of removal” would “reasonably have affected his decision to . . . plead guilty.”40

                  Moreover, it would not have been outside the zone of reasonable disagreement for

the district court to have found that Simon’s likelihood of success at trial was low. Although Simon

claimed that the cocaine that was found in his vehicle did not belong to him, the arresting officer’s

probable-cause affidavit indicated that “Simon was the only occupant of the vehicle and had care,

custody, and control of the vehicle” at the time the officer had found cocaine inside the glove box.

Also, Simon had been charged with cocaine possession, a felony offense. If convicted, Simon would

have faced up to two years in state jail and a $10,000 fine.41 But because of the plea agreement, the


        38
             Torres, 483 S.W.3d at 48.
        39
           See Guerrero, 400 S.W.3d at 588–89 (concluding that even if defendant, an undocumented
immigrant, had “gone to trial . . . and been acquitted[,] he would not have been transformed into a
legal resident”; instead, [h]e could have been deported immediately after walking out of the criminal
courthouse”).
        40
             See id. at 589.
        41
             See Tex. Penal Code § 12.35.

                                                   16
charge was reduced to a misdemeanor and Simon was placed on community supervision instead of

serving jail time. Simon testified at the habeas hearing that he wanted to avoid a jail sentence at the

time he pleaded guilty, and when the State asked Simon if he was “happy that [he] got probation on

this case on a misdemeanor instead of facing possible jail or a possible felony,” Simon answered in

the affirmative. Additionally, Wehnes testified that in his experience, at the time of Simon’s plea

hearing, immigration officials “were deporting people all the time when they reported to probation

on a felony,” but “if you were able to get out of the Courthouse with a misdemeanor, probation

would not report you to immigration.” Thus, the district court would not have abused its discretion

in finding that in addition to avoiding jail time, another benefit of the plea bargain was the possibility

that Simon would not be reported to immigration officials at that time.

                In summary, as an undocumented immigrant, Simon was already subject to

deportation even before he pleaded guilty, which would support a finding by the district court that

the risk of deportation would not reasonably have affected Simon’s plea decision. The record would

also support findings by the district court that Simon’s likelihood of success at trial was low, that the

risks Simon would have faced at trial were significant, and that the benefits Simon received from

the plea bargain were substantial. Accordingly, it would not have been outside the zone of

reasonable disagreement for the district court to have found that Simon failed to prove, by a

preponderance of the evidence, that there was a reasonable probability that, but for counsel’s alleged

errors, he would not have pleaded guilty and would have insisted on going to trial.42 For this and


        42
         See Torres, 483 S.W.3d at 49–51; Guerrero, 400 S.W.3d at 588–89; Ex parte Luna,
401 S.W.3d 329, 335–36 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Ali, 368 S.W.3d at
840–41.

                                                   17
other reasons discussed above, we cannot conclude on this record that the district court abused its

discretion in denying Simon’s application for writ of habeas corpus.

               We overrule Simon’s first and second points of error.


                                         CONCLUSION

               We affirm the district court’s order.



                                              ___________________________________
                                              Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Goodwin

Affirmed

Filed: July 19, 2018

Do Not Publish




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