                                        In The

                                 Court of Appeals
                      Ninth District of Texas at Beaumont
                               _________________
                                 NO. 09-12-00311-CR
                               _________________


                          EX PARTE QUYEN TRUNG LY

________________________________________________________________________

                   On Appeal from the 128th District Court
                          Orange County, Texas
                       Trial Cause No. A-030334-AR
________________________________________________________________________

                                        ORDER

      The appellant, Quyen Trung Ly, has appealed the trial court’s denial of his petition

for writ of habeas. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005). Ly’s habeas

petition challenged the voluntariness of his plea and asserted a claim of ineffective

assistance of counsel. These claims were based upon counsel’s alleged failure to properly

advise Ly regarding the immigration consequences of pleading guilty to possessing

methamphetamine. See Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d

284, 78 U.S.L.W. 4235 (2010); Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88

L.Ed.2d 203 (1985).



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       To establish a claim of ineffective assistance of counsel, the habeas petitioner

must establish both deficient performance by trial counsel and prejudice. Strickland v.

Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet his

burden of proof, a habeas petitioner must convince the court that a decision to reject a

plea bargain would have been rational under the circumstances. Padilla at 1485; Hill, 474

U.S. at 59. The trial court is not necessarily required to believe the petitioner’s testimony

that he would have rejected the plea agreement at issue. For example, the Fourteenth

Court of Appeals has stated: “The trial court may disbelieve appellant’s self-serving

testimony that he would not have pled guilty if he had been aware of the immigration

consequences of his plea.” Ex parte Fassi, No. 14-11-00914-CR, 2012 WL 6014603, at

*5 (Tex. App.—Houston [14th Dist.] Dec. 4, 2012, no pet. h.).

       In the matter before us, the trial court made findings regarding trial counsel’s

deficient performance; however, the trial court failed to make explicit findings regarding

whether Ly suffered prejudice from counsel’s allegedly deficient performance.

       In habeas proceedings under article 11.072, trial courts are required to make

findings of fact and conclusions of law. See Tex. Code Crim. Proc. Ann. art. 11.072 § 7.

Without more explicit findings on the issue of prejudice, including a finding regarding

the credibility of Ly’s affidavit that he would have rejected the plea had he known that he

would be deportable if he agreed to the plea-bargain at issue, we cannot determine

whether the trial court believed that Ly would have rejected the plea-bargain or that Ly


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would have accepted the plea-bargain even had he known with certainty the

consequences to his status as an immigrant. See Ex parte Moreno, No. 02-11-00272-CR,

2012 WL 3734003, at *5 (Tex. App—Fort Worth Aug. 30, 2012, pet. filed).

       A remand to allow the trial court to prepare additional findings of fact and

conclusions of law is appropriate when the trial court’s findings are inadequate for the

reviewing court to review the trial court’s application of the law to the facts. See State v.

Cullen, 195 S.W.3d 696, 698-99 (Tex. Crim. App. 2006); Hester v. State, 535 S.W.2d

354, 356 (Tex. Crim. App. 1976).

       It is, therefore, ORDERED that the case is remanded to the trial court for findings

of fact and conclusions of law. See Tex. R. App. P. 44.4. In addition to findings on the

disputed issues set forth in this order, the trial court may make such other findings as it

finds proper. See, e.g., Martinez v. State, No. PD-1338-11, 2012 WL 1868492, at *5

(Tex. Crim. App. May 16, 2012) (not designated for publication).

       The appeal is abated while the case is before the trial court. The trial court’s

findings and conclusions must be reduced to writing and filed in a supplemental clerk’s

record within thirty days. The appeal will be reinstated without further order of the Court

when the supplemental clerk’s record is filed.

       The appellant may file a supplemental brief addressing the trial court’s findings.

The appellant’s supplemental brief is due thirty days after the supplemental record is




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filed. If the appellant files a supplemental brief, the State may file a supplemental brief in

response, due thirty days after the appellant files his supplemental brief.

       ORDER ENTERED January 10, 2013.

                                                                 PER CURIAM

Before McKeithen, C.J., Kreger and Horton, JJ.




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