AFFIRMED; Opinion issued January 31, 2013.




                                                                         In The
                                                uiirt rtf ppia1
                                       FiftI! iitrict nf cxa at 1La11a
                                                             No, 05-12-00737-CR


                                    EX PARTE RENE CONTRERAS IIERNANDEZ


                                  On Appeal from the County Criminal Court No. 10
                                               Dallas County, Texas
                                        Trial Court Cause No. MCII-B0989


                                                                   OPINION
                                    Before Justices O’Neill, FitzGerald, and Lang-Miers
                                                 Opinion By Justice O’Neill

            Rene Contreras Flernandez appeals the trial court’s order denying his application for writ of

habeas corpus. In three issues, appellant contends the trial court erred in denying relief because his

guilty plea was involuntary and counsel rendered ineffective assistance. We affirm.

                                                        RELEVANT BAcIcRouNo

            In 2006, appellant pleaded guilty to misdemeanor assault involving family violence and the

trial court assessed a negotiated punishment of 300 days confinement in jail and a $200 fine,

probated for eighteen months. In 2011. appellant filed an application for writ of habeas corpus

contending his plea was involuntary and he received ineffective assistance of counsel.’                                                              It is


       The record on appeal is incomplete and does not contain appel ant’s written application, his aflidav it supporting his application, the trial court’s
initial written order, and any documentation of the underlying plea proceedings, During the writ hearing, the trial court and appellants plea counsel
discussed whether a reporter’s record would have been made of the misdemeanor plea and concluded it probably was not put on the record The
record does contani reporter’s records oftlic writ hearings, the trial Courts supplcnicntal order dens inghaheas rclicfand making findings of tact and
conclusions of law, and the parties’ written briefs to the trial court. We glean the facts of this case from the trial court’s findings, the evidence
undisputed that appellant is a noncitizen residing illegally in the United States.

            During the writ hearing, appellant’s immigration counsel testified his conviction would result

in automatic deportation. Appellant and trial counsel both testified and offered conflicting accounts

about what advice trial counsel gave appellant regarding the prospect for deportation. Appellant

testi tied he expressed concern to trial counsel about how his case would affect his immigration status

but trial counsel did not advise him about deportation. Instead, appellant related trial counsel told

him, “I got two choices, I can go to jail two years or get probation two years ....ile told me there’s

nothing that 1 can do, the only thing 1 can do is just say ‘guilty,’ and get two probation-two years

probation.” Appellant testified he was unaware he faced deportation until August 201 1 when he was

arrested for public intoxication. Appellant testified he would not have entered a guilty plea to the

assault offense had he known his plea would result in his exclusion from the United States.

           Counsel testified he represented appellant on the assault charge and a second charge for

possessing brass knuckles found in appellant’s pocket when appellant was arrested. Counsel was

aware appellant was in the country illegally and that a conviction involving domestic violence would

be “fatal” to appellant for deportation purposes. Counsel insisted that he always used the word

“fatal” with his clients in describing how this type of conviction would affect immigration status.

Counsel testified he communicated this information to appellant and a decision was made to set the

case for trial because of the prospect of deportation in the event of a conviction. Counsel testified

that appellant had no “realistic defense” to the brass knuckles case and the trial strategy was “to get

rid of that assault case and plead the weapon case to something else and hope that the third party

witness didn’t show up.” According to counsel, appellant decided on the day of trial to enter a guilty

plea to the assault charge because the thirdparty witness had appeared, appellant had no defense to


presented at the writ hearmg, and the parties uncontested statements of fact in their hriefs.
the brass knuckles case, and “we were just risking, you know, jail time at that point on the assault

with a third party witness here.”

        The eyewitness, Montie Gentry. testified he could no longer recall the details of the offense,

describing the time period at issue as “a gray area in my life and I don’t remember. I can’t recall

everything that happened to the tee.” Gentry testified he had given the police a statement about the

offense and he affirmed he had attempted to truthfully describe what he had seen to the police.

Gentry aflirmned he “may have” told the police that he saw appellant grab the complainant by the

throat and pull her during an argument in a grocery store parking lot causing a child in a car seat to

topple out of a shopping cart onto the ground.

        Before the writ hearing, Gentry had signed an affidavit averring he was not subpoenaed to

appear at appellant’s trial. Gentry testified no one ever contacted him about testifying, he was never

subpoenaed to appear in court to testify, and he never came to court to testify. He testified      “[ut
could be possible” he had spoken on the telephone with a prosecutor in 2006 and suggested the State

might have subpoenaed the wrong person for trial. When confronted with a subpoena return

showing he was subpoenaed, Gentry admitted he worked at the address where he was supposedly

subpoenaed and when asked if it was him reflected in the subpoena return, he responded, “I’m sure.”

        After hearing the testimony, the trial court entered an order denying the application. In a

supplemental order, the trial court entered findings of fact and conclusions of law. The trial court

found counsel advised appellant that “a plea of guilty to a Class A Assault could have immigration

consequences, including the possibility of deportation.” The trial court also noted in its findings that

it was the trial court’s own practice to verbally admonish defendants that assault convictions could

have immigration consequences. The trial court concluded appellant failed to prove counsel’s

representation fell below an objective standard ofreasonableness and it further concluded appellant’s
plea was entered knowingly and voluntarily.

                                          APrlJCABLI LAW


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

evidence. Ku/au v. ate, 206 SW3d 657. 664 (Tex. Crim, App. 2006): Exparte Seou, 190 SW.3d

672 673 (1 cv ( rim App 2006) (per eurlam) In re lewing the trial coult s order dens ing habeas

corpus relie1 we view the facts in the light most favorable to the trial court’s ruling. See Kniatt, 206

S.W.3d at 664. We will uphold the trial court’s ruling absent an abuse of discretion. See Id. We

afford almost total deference to the trial court’s determination of the historical facts that the record

supports. See Lx pane Peterson, 117 S.W.3d 804, 819 (Tes. Crim. App. 2003) (per curiam),

overruled on other grounds’ by Lx parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We

likewise defer to the trial court’s application of the law to the facts, if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. See Id, Ifthe resolution of the ultimate

question turns on an application of legal standards, we review the determination de novo. See Id

        To obtain habeas corpus relief on the ground of ineffective assistance of counsel, appellant

must show (1) counsel’s perfbrmance 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 Stricklandv. Washington, 466 U.S. 668, 687—88, 694 (1984). A decision to enter a guilty plea

based upon erroneous advice from counsel is not voluntary. Exparte Harrington, 310 S.W.3d 452,

458 (Tex. Crim. App. 2010). To prove his guilty plea was involuntary due to ineffective assistance

of counsel, appellant must show (I) counsel’s plea advice did not fall within the wide range of

competence demanded of attorneys in criminal cases and (2) there is a reasonable probability that,

but for counsel’s deficient performance, appellant would have insisted on going to trial rather than

accepting the offer and pleading guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Harrington, 310




                                                  -4-
S.W Id t 4S8

        ;\fter appellant finished serving his community supervision, the United States Supreme Court

issued an opinion clari1’ing counsel’s duty to give advice regarding how a plea might afThct a non-

citizen client’s potential deportation. See Padilla   i’.   Kentucky, 1 3(3 S. CL 1473 (2(310). When the

deportation consequences’ are “not succinct and straightforward,” counsel’s duty is to advise the

defendant of the possibility that the plea may carry a risk ofadverse immigration consequences. Id.

at 1483; see also Exparte ivioussazadeh, 361 S.W.3d 684, 691 (Tex, Crim .App. 2012). When.

however, federal law clearly specifies that the defendant will he deported, counsel must affirmatively

and correctly advise the defendant about immigration consequences of the plea. See Radii/a, 130

S. Ct. at 1483: Moussazadeh, 361 S.W3d at 691. Although the parties disputed whether Padilla

applies retroactively to this appeal, this Court applies Radii/a retroactively. See Es pane 0/vera,

2012 WI. 2336240, *4 (Tex. App.—Dallas June 20,2012, no pet.). As someone present in the

country illegally, facing a charge of assault involving family violence, appellant faced the prospect

of certain deportation upon   conviction.   See 8 U.S.C.A.      § 1 227(a)(   )(E)(i) (2008) (adding aliens

committing crimes of domestic violence to the class ofdeportable aliens who shall be removed from

the United States).

                                              ANALYSIS

       In his first two issues, appellant contends his guilty plea was involuntary because counsel

failed to advise him properly about the immigration consequences of his guilty plea and erroneously

told him that his only option was to plead guilty to the charge. Appellant contends counsel rendered

ineffective assistance because when appellant brought to counsel his concerns about the immigration

consequences of his plea, counsel did not give him any advice about deportation or discuss

alternatives but instead advised him to enter a guilty plea even though he faced automatic deportation
    and he would have been acquitted had he proceeded to trial. Because of counsel’s ineffective

    assistance, appellant contends his guilty plea was not entered intelligently and voluntarily and should

    be set aside. The State responds that counsel gave appellant the appropriate advice about both

    deportation and entry of his plea.

            Appellant’s appeal turns on the credibility ofthe witnesses. Appellant did not seek habeas

    relief until five years after the events at issue. Because of the passage of time, counsel could not

    remember key events and Gentry described the time period at issue as “a gray area” for him. An

    applicant’s delay in seeking habeas corpus reliefmay prejudice the credibility ofhis claim. Kniatt,

    206 S.W.3d at 664. Moreover, the record on appeal is incomplete, making it impossible for this

    Court to review all the relevant evidence. In particular we would have to speculate about the

    admonishments appellant received fromthe trial court and some ofthe factual allegations he makes

r   in his affidavit. It is the applicant’s burden to present a sufficient record on appeal to. support his

    factual allegations with proof by a preponderance of the evidence. See & Porte Chandler, 182

    S.W.3d 350, 353 n. 2 (Tex. Crim. App. 2005).

            We do, however, have the trial court’s findings of fact and conclusions of law. See Id.

    (relying on the trial court’s findings to assess the facts when a reporter’s record was not presented).

    After hearing appellant deny counsel had given him any deportation advice and hearing counsel

    testify that he had advised appellant a conviction would be “fatal” to his inunigration status, the trial

    court made a finding of fact that counsel had advised appellant his conviction “could have

    immigration consequences, including the possibility ofdeportation.” The trial court then concluded

    appellant had not shown counsel’s advice fell below an objective standard of reasonableness in

    violation of the first prong of Strickland. See Strickland, 466 U.S. at 68748. When viewed

    together, the finding offact and conclusion oflaw show the trial court found counsel’s testimony on



                                                      -6-
deportation to be more credible than appellant’s conflicting testimony. Because the trial court’s

findings contrary to appellanCs contentions are based on the trial courts evaluation of the witnesses’

testimony and demeanor and are supported by the &agmentary record belbre us. we defer to the trial

court’s credibility judgment. See Exparie An;ezquiia. 223 S.W.3d 363. 367 (Tex. Crim. App. 2006).

       Counsel’s advice that a guilty plea would have bbfatal
                                                      t deportation consequences satisfied



counsel’s obligations to render correct immigration advice. See Padilla, 130 S. Ct. at 1483;

Moussazadek, 361 S.W.3d at 6191. On the record presented, we cannot conclude appellant has

shown trial counsel’s representation regarding the immigration consequences of his plea fell below

an objective standard of reasonableness. See Strickland, 466 U.S. at 687—88; Harringion, 310

S.W.3d at 458. Likewise, we cannot conclude appellant has carried his burden to show his guilty

plea was entered unknowingly and involuntarily. Harringion. 310 S.W.3d at 458; Kniali. 206

S.W.3d at 664; Scott. 190 S.W.3d at 673. We overrule appellant’s first two issues.

       In his third issue, appellant contends counsel rendered ineffective assistance by failing to

conduct an adequate factual investigation of appellant’s case. Relying on Gentry’s 2011 affidavit

and writ hearing testimony, appellant contends Gentry would not have testified that he observed

appellant assaulting the complainant but only that Gentry saw appellant’s child fall. Appellant

asserts Gentry could not recall observing an assault and was not subpoenaed to appear at trial.

Appellant faults counsel for not contacting Gentry directly to discuss the case and for not advising

appellant that the State lacked the necessary proof to obtain a conviction.

       The State responds that Gentry’s 2011 testimony. taken five years after the relevant time

period, which Gentry described as a gmy area” in his memory. does not establish what testimony

Gentry would have given at a 2006 trial. The witnesses could not agree about whether Gentry was

present pursuant to a subpoena on the date of trial. The trial court implicitly resolved the issue



                                                —7—
against appellant. On the record presented, we cannot conclude the trial court’s finding that

appellant failed to show counsel’s representation fell below an objective standard of reasonableness

should he disturbed on appeal. See Amezquita, 223 SW3d at 367.

          Finding no merit to appellant’s contentions, we cannot conclude the trial court abused its

discretion in denying appellant’s application for writ of habeas corpus. See     Peterson.   117 S.W.3d

at 819.

          We affirm the trial court’s order denying relief on appellant’s application for writ of habeas

corpus.



                                                      ffCHAELJ.O’N ILL
                                                        JUS1 ICE



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

1 20737F,tJ05




                                                   —8—
                                 (!niirt uf Appit1
                         fiftI t1i1rict tf cxa it tkt11a

                                        JUDGMENT
EX PARTE RENE CONTRERAS                              Appeal from the County Criminal Court No.
FIERNANDEZ                                            10 of Dallas ( ount Texas ( ft ( t No
                                                     MCI 1B0989),
No. O5l2iX)737CR                                     Opinion delivered by Justice O’Neill.
                                                     Justices FitzGerald and LangMiers
                                                     participating.

       Based on the Court’s opinion ol this date, the order of the trial court denying habeas relief
is AFFIRMF1).


Judgment entered January 31. 201 3




                                                      1I(I I.•\I .1 .1. ( )‘“Ell.I_
                                                      II SII( 1.
