Chukiat Virabalin v. State

• Court: Court of Appeals of Texas
• Decided: June 21, 2007
• Docket: 01-07-00149-CR
• Status: Published

Opinion

Opinion issued June 21, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00149-CR

CHUKIAT VIRABALIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 858946B

MEMORANDUM OPINION

Appellant, Chukiat Virabalin, appeals from an order that denied his application for a writ of habeas corpus. In March 2001, appellant, a permanent resident alien, pleaded guilty to the offense of theft in exchange for five years' community supervision under a suspended sentence, commonly known as straight probation. See Tex. Pen. Code Ann. § 31.03 (Vernon Supp. 2006) (theft); Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (Vernon 2006) (Judge Ordered Community Supervision). In the first ground of his habeas application, appellant asserted that his guilty plea was involuntary because he was not informed that the plea that he accepted made his deportation mandatory, and that the plea bargain offer of deferred adjudication-community supervision that he rejected would have made his deportation discretionary. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Deferred Adjudication: Community Supervision). In the second ground of his application, he asserted that his trial counsel rendered ineffective assistance by not properly explaining the deportation consequences of his plea. In his sole issue on appeal, appellant contends that his guilty plea was involuntary due to ineffective assistance of counsel, and that the trial court therefore abused its discretion in denying his application. We conclude that the trial court's denial of appellant's application was not error because appellant failed to show that his plea was involuntary or that his attorney rendered ineffective assistance. We affirm the order denying habeas corpus relief.

Background Appellant was born in Thailand, and immigrated to the United States around 1969. In 1978, appellant obtained permanent residency. Appellant's wife and two children are United States citizens.

Appellant was indicted in cause number 858946 in January 2000 for second degree felony theft. Appellant hired as his defense counsel Candelario Elizondo, an attorney who has practiced law for more than 30 years. The State offered appellant two alternative plea bargains: He could plead guilty either to third degree felony theft in exchange for five years' straight probation, or to second degree felony theft in exchange for seven years' deferred adjudication. Aware that appellant was a permanent resident with a "green card," Elizondo discussed the immigration consequences of the alternative plea bargain offers with appellant. Elizondo's habit when representing criminal defendants was to advise them that the immigration consequences would not be any different under deferred adjudication or straight probation. He further makes it a habit to tell his clients that "deferred is a better plea bargain as it relates to non immigration matters, because even though you plead guilty you are not found guilty; whereas on probation you are found guilty." Elizondo told appellant that for immigration purposes, deferred adjudication and straight probation "were both convictions and therefore subject to deportation, denial of naturalization or denial of reentry." Elizondo explained the advantages and disadvantages of each of the State's offers. Elizondo told appellant that "a 3rd degree felony conviction was better than a 2nd degree conviction." Ultimately, Elizondo told appellant the "decision was his choice."

Appellant accepted the offer to plead guilty to third degree felony theft in exchange for straight probation. Appellant signed the court's written admonishments about the consequences of his plea of guilty. In accordance with the requirements of article 26.13(a)(4) of the Code of Criminal Procedure, the trial court admonished appellant as follows:

if you are not a citizen of the United States of America, a plea of guilty or nolo contendere or true for the offense with which you are charged in this case may result in your deportation, or your exclusion from admission to this country, or your denial or naturalization under federal law.

See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon 2006). Appellant initialed all admonishments. He waived the right to have a court reporter record the plea.

The trial court accepted appellant's plea of guilty, sentencing him to five years' confinement, suspended for five years' community supervision, and a $750 fine in March 2001. Appellant did not appeal the trial court's order that placed him on probation. In December 2003, the trial court discharged appellant's sentence because he had satisfactorily fulfilled the conditions of community supervision. In October 2006, appellant filed his application for a writ of habeas corpus. After the State filed an answer to appellant's application, the trial court held an evidentiary hearing on appellant's application by considering affidavits from appellant, Elizondo, and Ajay Choudhary, an immigration attorney.

According to his affidavit to the trial court, appellant "was not aware [when he signed the trial court's admonishment document] that there was any difference, for immigration, reentry, or naturalization purposes, between . . . being placed on deferred adjudication versus probation" and if he had known these differences when he pleaded guilty, he would "not have pleaded guilty and accepted felony probation."

Choudhary, the immigration attorney, represented in his affidavit that if appellant had received deferred adjudication, then his sentence would not have been "considered to be a term of imprisonment because no period of confinement is ordered," and he would be "eligible for cancellation of removal." Choudhary further averred that if cancellation of removal were granted, appellant would not be deported.

The trial court denied appellant's application, entering findings of fact and conclusions of law to support its determination that appellant's plea was voluntarily entered and that Elizondo did not render ineffective assistance of counsel.

Denial of Writ of Habeas Corpus

Appellant contends that the trial court erred by denying his application because he established that trial counsel rendered ineffective assistance by misinforming him that the immigration consequences of deferred adjudication and straight probation were the same. ⁽¹⁾

A. Law Concerning Habeas Relief Due to Ineffective Assistance of Counsel

We must uphold the trial court's ruling to grant or to deny habeas corpus relief, unless the record shows an abuse of discretion. Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.--Houston [1st Dist.] 2006, no pet.). A record that indicates that the trial court properly admonished the defendant presents a prima facie showing that the guilty plea was made voluntarily and knowingly. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Arreola, 207 S.W.3d at 391; Soto v. State, 837 S.W.2d 401, 405 (Tex. App.--Dallas 1992, no pet.). When the record presents a prima facie showing that the plea was voluntary and knowing, the burden shifts to the defendant to show that he entered the plea without understanding the consequences. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Here, there is no dispute that the trial court properly admonished appellant about the consequences of his plea of guilty. ⁽²⁾ Thus, the burden shifts to appellant to show that he did not understand the consequences of his plea. See id.

An accused who attests when he enters his plea of guilty that he understands the nature of his plea and that it is voluntary has a heavy burden on appeal to show that his plea was involuntary. Id.; Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.--Houston [1st. Dist.] 1996, pet. ref'd). A guilty plea is not voluntary if made as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel's performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different but for the deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of the Strickland test requires that the defendant show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant must prove objectively, by a preponderance of the evidence, that trial counsel's representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires that the defendant show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. Under the first prong, however, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, and the record must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

In the context of a claim that the defendant's plea is involuntary due to ineffective assistance of counsel, the defendant must show (1) that counsel's advice was outside the range of competency demanded of attorneys in criminal cases and (2) that, but for counsel's erroneous advice, the defendant would not have pleaded guilty and would have gone to trial instead. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). ⁽³⁾ In assessing counsel's competence, we presume that counsel has knowledge of legal principles that are neither novel nor unsettled. Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998).

B. Trial Court's Findings of Fact

The State contends that we are bound by the trial court's findings of fact that Elizondo properly advised appellant and did not render ineffective assistance of counsel.

The Code of Criminal Procedure provides that the trial court may determine a ruling on a writ of habeas corpus by examining "affidavits, depositions, interrogatories, or a hearing, and may rely on the trial court's personal recollection." Tex. Code Crim. Proc. Ann. art. 11.072, § 6 (b) (Vernon 2005); see Arreola, 207 S.W.3d at 390. The trial court "shall enter a written order including findings of fact and conclusions of law." Tex. Code Crim. Proc. Ann. art. 11.072, § 7(a) (Vernon 2005); see Arreola, 207 S.W.3d at 3910.

An appellate court reviews the facts in the light most favorable to the trial court's ruling. Arreola, 207 S.W.3d at 391. An appellate court should give almost total deference to a trial court's determination of historical facts that are dependent upon an evaluation of credibility and demeanor. Id. A trial court may accept or reject all or part of the testimony of any witness. Id. A reviewing court defers to a trial court's disbelief of factual assertions in an affidavit as long as any reasonable view of the record will support the finding. Shanklin v. State, 190 S.W.3d 154, 167 (Tex. App.--Houston [1st Dist.] 2005, pet. dism'd) ("trial court is not required to believe factual statements contained within an affidavit, even when they are uncontradicted by other affidavits"); see also Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006); Ex parte Thompson, 153 S.W.3d 416, 425 (Tex. Crim. App. 2005); Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999).

The trial court's finding of fact specifically concerning the immigration advice by Elizondo states, as follows:

12. The Court finds that Candelario Elizondo never provided Applicant with any erroneous advice concerning the potential deportation consequences in pleading guilty and accepting the State's plea offer.

In his brief to this Court, appellant refers to the affidavit by Elizondo in an attempt to establish that Elizondo gave him misinformation about the immigration consequences of his plea of guilty. In his affidavit, Elizondo states,

. . . We discussed that, for immigration purposes, "deferred" and a "probation" were both convictions and therefore subject to deportation, denial of naturalization or denial of reentry. (See Moosa v Immigration and Naturalization Service, US Court of Appeals, 5th Circuit 4/2/99).

I make it a habit to tell all my clients when faced with this dilemma that while for immigration purposes, a deferred and probation have the same consequences, a deferred is a better plea bargain as it relates to non immigration matters, because even though you plead guilty you are not found guilty; whereas on probation you are found guilty. I advised Mr. Virabalin that the decision was his choice. Mr. Virabalin, on March 26, 2006 opted for the five (5) years probation on the 3rd degree felony. I did advise him that a 3rd degree felony conviction was better than a 2nd degree conviction. . . .

Elizondo's affidavit relates statements that he made to appellant about immigration consequences, and a further statement about his habit. We examine each of these statements as they relate to the trial court's findings of fact.

1. Statement That Both Options were Convictions

Elizondo's affidavit states that he "discussed that, for immigration purposes, 'deferred' and a 'probation' were both convictions and therefore subject to deportation, denial of naturalization or denial of reentry." Elizondo's testimony that recites that "for immigration purposes, 'deferred' and a 'probation' were both convictions" is consistent with the affidavit by appellant's immigration attorney, Choudhary, who said that "although deferred adjudication is considered to be a conviction under the immigration laws, deferred adjudication is not considered to be a term of imprisonment because no period of confinement is ordered." (Emphasis added). Thus, undisputed evidence before the trial court established that Elizondo did not misinform appellant by stating that deferred adjudication and straight probations are both convictions under immigration law.

2. Statement that Both Options Subject Appellant to Deportation

Elizondo's next statement that deferred adjudication and straight probation can make appellant "subject to deportation, denial of naturalization or denial of reentry" is consistent with the trial court's written admonishments that were given to appellant when he pleaded guilty and with the required admonishment in article 26.13(a)(4) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4). The trial court admonished appellant in writing that,

If you are not a citizen of the United States of America, a plea of guilty or nolo contendere or true for the offense with which you are charged in this case may result in your deportation, or your exclusion from admission to this country, or your denial or naturalization under federal law.

We conclude that the trial court could have reasonably determined that trial counsel did not render ineffective assistance of counsel by admonishing appellant consistently with the admonishment in the Code of Criminal Procedure and with the trial court's admonishments concerning the immigration consequences of a plea of guilty. ⁽⁴⁾ See Ex parte Wheeler, 203 S.W.3d at 325-26; Thompson, 153 S.W.3d at 425; Kober, 988 S.W.2d at 233. We must defer to the trial court's finding that trial counsel did not misinform appellant about the immigration consequences because a reasonable view of the record supports the finding. See Ex parte Wheeler, 203 S.W.3d at 325-26; Thompson, 153 S.W.3d at 425; Kober, 988 S.W.2d at 233.

3. Elizondo's Statement About his Habit

The State asserts that the trial court disregarded Elizondo's affidavit testimony about his habit to advise his clients that "for immigration purposes, a deferred and probation have the same consequences." As noted above, the immigration consequences of deferred adjudication and straight probation are not the same, and thus, if Elizondo made that statement to appellant, it would be erroneous. The trial court, however, implicitly found that Elizondo did not make that statement to appellant. As the fact-finder, the trial court could have reasonably determined that Elizondo had no actual memory of the events with appellant because he did not specifically say that he made the statement to appellant. See Ex parte Wheeler, 203 S.W.3d at 325-26; Thompson, 153 S.W.3d at 425; Kober, 988 S.W.2d at 233. Because the trial court found that Elizondo did not provide appellant with erroneous advice, the trial court implicitly found that Elizondo did not follow his habit with appellant. See Ex parte Wheeler, 203 S.W.3d at 325-26; Thompson, 153 S.W.3d at 425; Kober, 988 S.W.2d at 233. ⁽⁵⁾

Having determined that the evidence reasonably supports the trial court's finding that trial counsel "never provided [appellant] with any erroneous advice concerning the potential deportation consequences in . . . accepting the State's plea offer," we conclude that the findings of fact reasonably support the trial court's conclusions that appellant's plea of guilty was "knowingly and voluntarily entered" and that the "totality of the representation afforded [appellant] was sufficient to protect his right to reasonably effective assistance of counsel." ⁽⁶⁾

We must defer to the trial court, which has considerable discretion to deny writ of habeas corpus based on its findings of fact. See Arreola, 207 S.W.3d at 391. We hold that the trial court did not err in denying appellant's application for writ of habeas corpus. See id. We overrule appellant's sole issue presented in this appeal.

Conclusion

We affirm the order of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).

1. The 262nd District Court had jurisdiction over appellant's application for writ of habeas corpus that sought relief from the trial court's order that placed him on community supervision in his claim that his pleas of guilty were involuntarily entered. See Tex. Code Crim. Proc. Ann. art. 11.072, §§ 1, 2(b) (Vernon 2005); Arreola v. State, 207 S.W.3d 387, 390 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We have jurisdiction over the appeal from that denial of that application. Tex. Code Crim. Proc. Ann. art. 11.072, § 8 (Vernon 2005); Arreola, 207 S.W.3d at 390.

2. The written documentation supporting appellant's original guilty pleas shows that appellant's pleas were voluntarily entered. The record shows that appellant and his attorney received written admonishments from the trial court when he pleaded guilty to the offenses, and that they each acknowledged the admonishments with their signatures. Further, in the written admonishments, appellant affirmed that his plea was voluntary and that he was "not relying on any advice, information or agreement not made known to the Court." In "Defendant's Guilty Plea," appellant acknowledged under oath that he understood all of the admonishments and the consequences of his plea. He also swore that he was "not relying on any advice, information or agreement not made known to the Court."

3. Appellant contends that we should determine harm not by whether he would have gone to trial, but whether he would have accepted the plea offer of deffered adjudication. Because we conclude that appellant fails to establish the first prong of the ineffective assistance test, we do not reach the second prong.

4. Deferred adjudication does not, for deportation consequences, constitute a "term of imprisonment." See 8 U.S.C. § 1101(a)(48)(B) (2006). A "term of imprisonment" does include probation, however. See id. If an alien who is convicted of a theft offense is punished by a term of imprisonment of one year or more, he is considered to be an aggravated felon. See 8 U.S.C. § 1101(a)(43)(G). Aggravated felons are subject to mandatory deportation. See 8 U.S.C. §§ 1227(a)(2)(A)(iii) (2006), 1229b(a) (2006). For an alien that is deportable, but is not an aggravated felon, discretion is allowed. See 8 U.S.C. § 1101(f)(8); 8 U.S.C. § 1101(a)(43)(G); 8 C.F.R. § 316.10(b)(1)(ii) (1995).

5. Appellant never testified that Elizondo affirmatively told him that there was no difference for immigration purposes between deferred adjudication and straight probation. Instead, appellant attested that Elizondo was silent on the matter, and that he "never told me there was a difference, for immigration, naturalization, and reentry purposes between a person with permanent resident status being placed on felony theft probation versus felony theft deferred adjudication and I was not aware of any difference between the two."

6. We conclude that we need not determine whether, had the information conveyed by trial counsel been erroneous, appellant's plea of guilty would be rendered involuntary since the information concerned a collateral consequence of the plea of guilty, rather than a direct, punitive consequence.