Opinion issued December 16, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00613-CR
                            ———————————
                  EX PARTE DAVID VASQUEZ, Appellant



                   On Appeal from the 232nd District Court
                            Harris County, Texas
                      Trial Court Cause No. 1324512-A


                          MEMORANDUM OPINION

      Appellant, David Vasquez, appeals from the denial of his post-conviction

application for a writ of habeas corpus. Appellant, in his sole issue, contends that

his plea counsel’s failure to provide accurate immigration advice, required under

Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), resulted in ineffective

assistance of counsel in violation of the Sixth Amendment and, as a result,
rendered his 2012 guilty plea involuntary. We hold that the trial court acted within

its discretion in denying the application and affirm.

                                 BACKGROUND
      Appellant, a citizen of El Salvador, has lived in the United States since 1986

and was granted lawful permanent resident status in 2005. On May 10, 2012,

through counsel, appellant pleaded guilty to the state jail felony of possession of

less than one gram of cocaine, for which he received two years’ deferred

adjudication community supervision. See TEX. HEALTH & SAFETY CODE ANN. §

481.115(a), (b) (West 2010); TEX. PENAL CODE ANN. § 12.35(a) (West Supp.

2014). The record does not contain a transcript of this plea hearing.

      On June 24, 2013, U.S. Immigrations and Customs Enforcement (“ICE”)

apprehended appellant, placed him on an immigration hold, and instituted

deportation proceedings. ICE charged that appellant was subject to removal from

the United States under section 237(a)(2)(B)(i) of the Immigration and Nationality

Act, which provides that:


         Any alien who at any time after admission has been convicted of a
         violation of (or a conspiracy or attempt to violate) any law or
         regulation of a State, the United States, or a foreign country
         relating to a controlled substance (as defined in section 102 of the
         Controlled Substances Act (21 U.S.C. 802)), other than a single
         offense involving possession for one’s own use of 30 grams or less
         of marijuana, is deportable.



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8 U.S.C.S. § 1227(a)(2)(B)(i) (LexisNexis 2007).          On May 12, 2014, after

appellant’s community supervision period terminated, the immigration judge

denied his application to withhold removal and ordered him removed.

      On May 9, 2014, appellant, through habeas counsel, filed an application for

a writ of habeas corpus, under Texas Code of Criminal Procedure article 11.072.

Appellant submitted an affidavit in support of the writ alleging that he had only a

basic understanding of English; that his plea counsel, Stephen Ligon, did not speak

Spanish or translate the plea documents; and that counsel did not adequately advise

appellant of the immigration consequences of his plea, thereby providing

ineffective assistance of counsel under Padilla, 559 U.S. at 374, 130 S. Ct. at 1486,

and rendering his plea involuntary. Appellant’s affidavit also claimed that Ligon

was ineffective because he had advised appellant that only U.S. citizens were

entitled to a jury trial and that if he did not plead guilty, the court would find him

guilty and put him in prison. Appellant’s affidavit further alleged that if he knew

that his plea would have led to mandatory deportation, he would not have accepted

the plea deal.

 The Habeas Court’s Hearing and Findings of Fact and Conclusions of Law
      Before she denied appellant’s habeas application on July 2, 2014, the trial

judge stated that she had reviewed several exhibits attached to appellant’s

application, including his affidavit, as well as the court file from the 2012 plea


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hearing and live testimony at the writ hearing. The court held a writ hearing on

July 2, 2014, in which appellant, his plea counsel, Ligon, and his probation officer,

Lawrence Hoff, all testified.         Appellant, testifying without an interpreter,

equivocated in his testimony about whether he could read and write English. He

testified that it was not his signature on the affidavit submitted by his habeas

counsel, but that his counsel had it read to him in Spanish. Appellant admitted that

he had signed and initialed the plea admonishment papers, acknowledging that he

could read and write English and that his attorney had advised him that his plea

would result in his deportation, but he testified that he could not read or write

English, that he spoke only a little English, and that his attorney had not explained

the immigration consequences of his plea in Spanish.


      Ligon testified that he had no problems communicating with appellant in

English before the plea hearing, when he advised appellant that appellant would be

deported after his plea, and that appellant wanted the plea deal because he did not

want to go to jail.    Officer Hoff similarly testified that he had no problems

communicating with appellant in English. At the end of the writ hearing, the court

found appellant’s testimony not credible and denied relief in an order, but did not

enter any separate findings or conclusions, as required by Texas Code of Criminal

Procedure Article 11.072, § (7)(a).



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      After this Court issued an order of abatement, the trial court entered the

following findings of fact and conclusions of law:


      1.     [Appellant] spoke and understood English at the time of his
      plea, and he did not suffer any language barrier sufficient enough to
      cause him to enter an involuntary plea. The following evidence
      supports this finding:

            A.     [Appellant] chose to hire Mr. Ligon knowing that he did
                   not speak Spanish.

            B.     Mr. Ligon communicated with [appellant] in English and
                   did not need to use the interpreter he had on staff.

            C.     [Appellant]’s probation officer communicated with
                   [appellant] in English and did not have to rely on
                   Spanish-speaking colleagues to communicate with him.

      2.   Mr. Ligon advised [appellant] that a guilty plea in this case
      would result in deportation from this country, exclusion from
      admission into this country or denial of naturalization. That advice
      was memorialized in the plea admonishment form.1

      3.    Mr. Ligon did not tell [appellant] that he had no right to a trial
      and that he had to plead guilty or risk imprisonment.

      4.    [Appellant] wanted to plead guilty and take a deferred
      adjudication to avoid jail.

      5.     [Appellant] pled guilty freely and voluntarily with knowledge
      of the immigration consequences of his plea.




1
      Although the record does not include this document, the habeas court took
      judicial notice of the plea papers at the writ hearing and ordered the trial
      clerk to file all the plea papers in its Findings, Conclusions and Order.
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      Therefore, the Court concludes that [appellant]’s plea was voluntarily
      entered with full knowledge of the immigration consequences of his
      plea, and he is entitled to no relief.

                                   DISCUSSION
      In his notice of appeal, appellant’s appellate counsel contended that

appellant’s habeas counsel’s submission of an English-only affidavit, instead of a

Spanish-language affidavit signed by appellant, caused significant confusion and

prejudice to appellant at the writ hearing. Thus, appellant asserts that he was

denied due process and a reasonable opportunity to contest that his plea counsel

was ineffective for failing to advise him of the immigration consequences of his

2012 guilty plea, in violation of Padilla, rendering his guilty plea involuntary.


A.    Standard of Review
      “An applicant seeking habeas corpus relief based on an involuntary guilty

plea must prove his claim by a preponderance of the evidence.”               Ex parte

Mandujano, No. 01-12-00922-CR, 2013 WL 4007801, at *3 (Tex. App.—Houston

[1st Dist.] Aug. 6, 2013, no pet.) (mem. op., not designated for publication) (citing

Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006)). 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.

See Ex parte Ali, 368 S.W.3d 827, 835 (Tex. App.—Austin 2012, pet. ref’d).

Further, the applicant must show that a decision to reject the plea bargain would


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have been rational under the circumstances. See id. (citing Padilla, 559 U.S. at

372, 130 S. Ct. at 1485).


      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. See Ex parte Mandujano, 2013

WL 4007801, at *3 (citing Ex parte Ali, 368 S.W.3d at 831). We “afford almost

total deference to a trial court’s fact findings in habeas proceedings, especially

when those findings are based upon 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)). We similarly defer to the trial court’s

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

demeanor determinations. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). If the resolution of the ultimate question turns on an application of

law, we review the determination de novo. See Ex parte Mandujano, 2013 WL

4007801, at *3.


      In an article 11.072 habeas case, the trial judge is the sole finder of fact. See

Ex parte Obi, No. 01-12-01003-CR, 2014 WL 4748116, at *5 (Tex. App.—

Houston [1st Dist.] Sept. 25, 2014, pet. filed) (citing Ex parte Garcia, 353 S.W.3d

785, 788 (Tex. Crim. App. 2011)).        An appellate court reviews the evidence

presented in the light most favorable to the trial court’s ruling, regardless of
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whether the court’s findings are implied or explicit, or based on affidavits or live

testimony, provided they are supported by the record. See Ex parte Murillo, 389

S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

      Nevertheless, while we give deference to any underlying historical fact

determinations made by the habeas court, we review the ultimate question of

prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),

de novo. See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005); Ex

parte Murillo, 389 S.W.3d at 927. We will uphold the habeas court’s judgment as

long as it is correct under any theory of law applicable to the case. See Ex parte

Murillo, 389 S.W.3d at 926.


B.    Applicable Law
      In Padilla, 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 374, 130 S. Ct. at 1486. Because appellant

entered his plea after the United States Supreme Court decided Padilla, this is not a

case in which retroactivity bars Padilla’s application. See Ex parte Mandujano,

2013 WL 4007801, at *2 (citing Chaidez v. United States, 133 S. Ct. 1103, 1113

(2013)); Ibarra v. State, No. 01-12-00292-CR, 2013 WL 1163967, at *2 (Tex.

App.—Houston [1st Dist.] Mar. 21, 2013, pet. ref’d).



                                         8
      The two-pronged Strickland test applies to challenges to guilty pleas, such as

the one in the present case, premised on ineffective assistance of counsel. See Ex

parte Obi, 2014 WL 4748116, at *5 (citing Hill v. Lockhart, 474 U.S. 52, 58, 106

S. Ct. 366, 370 (1985)). Thus, to be entitled to relief, appellant was required to

show by a preponderance of the evidence that (1) trial counsel’s performance fell

below the 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. at 687-88, 694, 104 S.

Ct. at 2064, 2068.


      “In the Padilla context, when the prejudice prong of the Strickland test is

dispositive, we need address only that prong on appeal.” Ex parte Obi, 2014 WL

4748116, at *5 (quoting Ex parte Murillo, 389 S.W.3d at 927). We make the

prejudice inquiry on a case-by-case basis, considering the circumstances

surrounding the plea and the gravity of the alleged failure.      See id. (citation

omitted). “[I]t is not necessary to determine whether trial counsel’s representation

was deficient if appellant cannot satisfy the second Strickland prong.” Id. (quoting

Ex parte Murillo, 389 S.W.3d at 927).


C.    Analysis
      At the writ hearing, appellant and his plea counsel disputed how well

appellant could speak English at the time of his plea, and whether plea counsel had
                                         9
advised him about the effect of a guilty plea on his immigration status. Appellant

equivocated in his own testimony on these issues, admitting that he had initialed

the plea admonishment form that acknowledged he could read and write English

and that he was advised by his attorney he would be deported if he pleaded guilty.

The trial court found that appellant spoke and understood English at the time of the

plea hearing, that Ligon had advised appellant that a plea would result in his

deportation, and, thus, that appellant had pleaded guilty voluntarily with the full

knowledge of the immigration consequences of his plea. We defer to the trial

court’s finding on these issues, as their resolution turns on an evaluation of the

witnesses’ credibility and demeanor. See Ex parte Amezquita, 223 S.W.3d at 367.

      With respect to the second prong of Strickland, the record supports the trial

court’s finding that appellant opted for the plea agreement because he wanted to

take community supervision to avoid going to jail. See Ex parte Mandujano, 2013

WL 4007801, at *4. Accordingly, the trial court acted within its discretion in

denying appellant habeas relief and we overrule his sole issue.




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                                CONCLUSION
      We affirm the order of the trial court denying habeas relief. We dismiss any

pending motions as moot.




                                                Laura Carter Higley
                                                Justice


Panel consists of Justices Keyes, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).




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