AFFIRMED and Opinion Filed December 22, 2020
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01340-CR
EX PARTE CARLOS MALDONADO
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. WX19-00005-Q
MEMORANDUM OPINION Before Chief Justice Burns1 and Justices Pedersen, III, and Evans Opinion by Justice Evans Carlos Maldonado appeals the trial court’s order denying relief on his post-
conviction application for writ of habeas corpus. In two issues, appellant contends
the trial court improperly applied legal standards in determining whether his guilty
plea was entered knowingly and contends he received ineffective assistance of
counsel. For the reasons that follow, we affirm the trial court’s order.
1 The Honorable David L. Bridges, Justice, participated in the submission of this case; however, he did not participate in the issuance of this memorandum opinion due to his death on July 25, 2020. Chief Justice Robert Burns has substituted for Justice Bridges in this cause. BACKGROUND
Appellant is a Honduran immigrant who has lived in the United States since
2004. In 2006, appellant was charged with possession of cocaine in an amount less
than one gram. Trial counsel was appointed to represent appellant in connection
with the charge. The number of meetings between appellant and trial counsel and
the advice trial counsel gave appellant are disputed matters.
In 2007, appellant entered a negotiated plea of guilty before a magistrate who
made findings that appellant had appeared with counsel, waived a jury trial, and was
duly admonished about the consequences of his plea. The magistrate concluded
appellant entered his plea freely and voluntarily and recommended the trial court
follow the plea bargain agreement which called for appellant to be placed on deferred
adjudication community supervision for two years and be fined $1,500.
The plea bargain agreement contains admonishments advising appellant that
if he is not a United States citizen, his guilty plea “may, and under current Federal
Immigration rules is almost certain to, result in your deportation, exclusion from
admission to the United States, or denial of naturalization.” (Emphasis in original).
The plea bargain also contains appellant’s acknowledgment that he understands that
if he is not a citizen, his guilty plea “will probably result in my deportation from the
United States, exclusion from admission to the United States, or denial of
naturalization under Federal law.” Appellant further represents that he had read and
understands the admonitions and warnings about his rights and his plea and assures
–2– the trial court that his “statements and waivers are knowingly, freely and voluntarily
made with full understanding of the consequences.”
The trial court adopted the magistrate’s findings, conclusions, and
recommendations. The trial court entered an order assessing the agreed period of
deferred adjudication community supervision. Appellant was never adjudicated
guilty. In 2012, the trial court discharged him “unsuccessfully” from community
supervision.
Habeas Proceedings in the Trial Court
On January 11, 2019, appellant filed an application for writ of habeas corpus
pursuant to article 11.072 of the code of criminal procedure. In his writ application,
appellant contended he received ineffective assistance of counsel and his guilty plea
was entered involuntarily. Specifically, appellant contended trial counsel
misadvised him that his guilty plea would not result in deportation from the United
States, he did not comprehend the plea papers he signed because he cannot read the
English language, and trial counsel did not translate the plea papers into Spanish and
explain them to him. Appellant supported his writ application with his own affidavit,
an affidavit from trial counsel, and documents from his plea proceeding.
Appellant’s affidavit relates that he and trial counsel had only one brief
meeting, outside the courtroom, during which he signed a paper written in English
that he did not understand and trial counsel did not explain to him in Spanish.
Appellant states he never saw a judge. Later, trial counsel informed him he was on
–3– probation and this was a good result because he would not have to go to jail. When
he asked trial counsel if he would have any immigration problems arising from the
plea, trial counsel assured him he would not. Appellant avers he learned only
afterward that he had pleaded guilty to possession of cocaine. Appellant avers he is
now in removal proceedings and faces deportation.
Appellant states he would have chosen to proceed to trial if trial counsel had
explained the plea papers to him and had not misadvised him that he would not have
any immigration issues arising from the plea. Appellant avers he is innocent, did
not possess any cocaine, and does not know why he was arrested. Appellant relates
that he has lived in the United States for fourteen years, his child was born in the
United States, and his family depends on him for support. Appellant’s affidavit
includes a certification by the person who translated his statements into English for
preparation of the affidavit.
Trial counsel’s affidavit states he does not remember appellant’s case and has
no records of the case. Trial counsel further avers he has practiced law for forty
years, criminal law is his primary area of practice, and that approximately eighty
percent of his clients are Hispanic, including many immigrants from Mexico and
Central America. He testified, “On every case involving a client that is not an
American citizen, I advise them that any criminal conviction can and will result in
deportation and/or a denial of any application for Legal Residency or
Naturalization.” Such advice is his “standard practice without exception” and his
–4– “standard procedure” is to inform every client who is not a United States citizen
“that any criminal case could have adverse effects on their immigration status.”
Although he could not recall appellant’s case, counsel averred that he knew to a
certainty that he had advised appellant of the repercussions of his guilty plea even
though appellant was receiving deferred adjudication.
The Hearing and Ruling
During the hearing on his writ application, appellant chose to rely on the
affidavits and documents submitted with his application without putting on
testimony. The State admitted into evidence the trial court’s case file. A reporter’s
record of the writ hearing has been filed in this appeal.2
During argument, appellant argued the presence in the file of a Spanish
translation of his conditions of community supervision shows he speaks Spanish and
did not understand the plea papers and admonishments. Appellant speculated that it
was “very possible” that counsel did not properly advise him because counsel may
have believed deferred adjudication did not carry adverse immigration
consequences. Appellant pointed out that the plea proceeding occurred before the
United States Supreme Court’s Padilla decision which mandated such advice. The
State had pointed out that the file shows appellant was discharged from community
2 State’s Exhibit One, consisting of the entire contents of the trial court’s file, was not filed into the appellate record with the reporter’s record. At the State’s request, the district clerk has filed a supplemental clerk’s record containing the contents of the trial court’s file. –5– supervision as “unsuccessful” because he had absconded from supervision two
months after he entered his plea and was not apprehended during the term of
community supervision. Appellant argued that his failure to abide by the terms of
community supervision showed that he did not understand what probation entailed
and that he thought his case was over. Appellant argued he was back in court, willing
to risk a trial to assert his innocence.
After hearing argument, the trial court stated on the record that it had difficulty
accepting the veracity of appellant’s affidavit because it contradicted the evidence
in the court’s file. The trial court pointed out that while appellant stated he had met
with counsel only once, the record showed someone had appeared in court four times
with counsel before appellant had entered his plea and had signed appellant’s name
to documents using a similar signature to appellant’s signature on the plea papers.
The record contains four pass slips that support the trial court’s statement. The trial
court further stated that trial counsel’s affidavit was “entirely contrary” to
appellant’s allegations. The trial court thought the presence of the Spanish version
of the probation conditions showed appellant had no difficulty communicating in
Spanish during the plea proceedings. The trial court stated that appellant’s habeas
counsel had been given the opportunity to inquire whether a reporter’s record of the
plea proceedings was available. The trial court observed that if appellant had
requested a reporter’s record, if available, then the court would be able to determine
whether an interpreter was used at the plea hearing and make an assessment of
–6– whether the plea was voluntary. As the record stood, the trial court concluded that
“all the information that I have is contrary to the information provided in the
applicant’s application.”
The trial court denied relief and it adopted the State’s proposed findings of
fact and conclusions of law.3 Among the trial court’s findings, the trial court found
trial counsel had made four court appearances on appellant’s behalf. The trial court
also found appellant had failed to complete community supervision because he had
not reported to his community supervision officer. The trial court found it had issued
an arrest warrant for appellant on October 1, 2008 and dismissed the case against
appellant on March 16, 2012 after appellant’s counsel informed the trial court that
appellant was in jail in Maine. The trial court found appellant had declined an
opportunity to postpone the hearing to allow him to obtain a reporter’s record of his
plea hearing from the court reporter. The trial court found appellant’s assertions in
his affidavit are in direct conflict with appellant’s attestations in his plea agreement,
the trial court’s written admonishments, the magistrate’s findings, and the affidavit
of trial counsel.
The trial court further found appellant’s attestations in his affidavit were self-
serving and not credible. In contrast, the trial court found trial counsel’s attestation
that he advises every client who is not an American citizen of the adverse
3 The order adopting the State’s proposed findings of fact and conclusions of law was signed by a senior judge sitting by assignment. –7– immigration consequences of a guilty plea was credible. The trial court found
appellant’s claim that trial counsel had not advised him properly of the consequences
of his plea lacks merit. The trial court found appellant had failed to prove the first
prong of the required Strickland test to show ineffective assistance of counsel, had
failed to overcome the strong presumption that trial counsel rendered effective
assistance, found the trial court had properly admonished appellant, and the evidence
presented at the plea hearing was sufficient to support the judgment.
The trial court concluded appellant had received reasonably effective
assistance of counsel, he had entered his plea freely and voluntarily, and he had not
been denied any constitutional rights. This appeal followed.
DISCUSSION
Standard of Review
In reviewing the trial court’s ruling on a habeas claim, we review the record
evidence in the light most favorable to the trial court’s ruling and must uphold the
trial court’s ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657,
664 (Tex. Crim. App. 2006). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles. State v. Simpson, 488 S.W.3d 318, 322
(Tex. Crim. App. 2016).
Applicants for post-conviction habeas corpus relief bear the burden of proving
their claims by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35,
43 (Tex. Crim. App. 2016). When the underlying conviction results in community
–8– supervision, an ensuing post-conviction writ must be brought pursuant to article
11.072 of the code of criminal procedure. Id. at 42. In reviewing an appeal arising
from an 11.072 writ application, the appellate courts have less leeway to disregard
the trial court’s factual findings. Id. The trial court is the sole finder of fact, and
“we afford almost total deference to a trial court’s factual findings when they are
supported by the record, especially when those findings are based upon credibility
and demeanor.” Id. We defer to the trial court’s fact findings supported by the
record even when such findings are based on affidavits rather than live testimony.
State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). If, however, the
trial court’s determinations are questions of law, or mixed questions of law and fact
that do not turn on an evaluation of witnesses’ credibility and demeanor, then we
review them de novo. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App.
2014).
Application of Legal Standards to Determine Voluntariness of the Plea
In his first issue, appellant contends the trial court improperly applied the legal
standards in finding he entered his guilty plea knowingly and voluntarily.
A guilty plea must be voluntary and “a knowing, intelligent act done with
sufficient awareness of the relevant circumstances and the likely consequences.”
Brady v. U.S., 397 U.S. 742, 748 (1970). The defendant entering the plea must be
“fully aware of the direct consequences, including the actual value of any
commitments made to him by the court, prosecutor, or his own counsel.” Id. at 755.
–9– “A finding that a defendant was duly admonished creates a prima facie
showing that a guilty plea was entered knowingly and voluntarily.” Martinez v.
State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). To overcome the prima facie
showing, the defendant bears the burden to show he or she did not fully understand
the consequences of the plea and suffered harm. Id. Defendants who have attested
to the voluntariness of their pleas during the initial plea hearings bear a heavy burden
to prove their pleas were involuntary in subsequent proceedings. Houston v. State,
201 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
Appellant contends his plea was not entered knowingly and voluntarily
because the record is “devoid of any evidence that [he] received any Spanish-
language assistance.” Appellant contends trial counsel’s affidavit does not state
whether trial counsel speaks Spanish or hired an interpreter to translate his advice
into Spanish for appellant. Appellant asserts trial counsel failed to advise him or
explain the plea papers in Spanish. Appellant contends the trial court’s fact finding
that he received his probation conditions in Spanish is irrelevant and does not
support a conclusion that he received any assistance in understanding his plea;
instead, he contends it supports his contention that he did not receive a Spanish
translation of the plea papers. Without evidence that he received assistance in
Spanish, appellant contends the trial court could not have concluded he entered his
plea voluntarily.
–10– Appellant discounts the trial court’s findings that he had the opportunity to
obtain a reporter’s record of his plea hearing and that such a record would show
whether or not he received Spanish language assistance in understanding the plea
proceedings. Appellant contends his affidavit, attesting to the absence of any
Spanish language assistance and translations of the plea papers, should prevail in the
absence of other evidence. Finally, appellant contends the absence of legal
assistance in Spanish harmed him in that he entered his plea without understanding
that he would be deported. Appellant points out that he had lived in this country for
fourteen years, his family lives here, and he asserts he would not have entered a
guilty plea if he had understood the deportation consequences of his plea.
In response, the State points out appellant failed to call any witnesses, declined
the opportunity to obtain a reporter’s record of his plea hearing, and relied only upon
his affidavit to establish that he did not understand the plea hearings. Because the
trial court found appellant’s affidavit not credible, the State contends appellant failed
to meet his burden of proof to show he entered an involuntary plea. We agree with
the State.
The record shows appellant entered a guilty plea before the trial court and
signed documents attesting to the voluntariness of his plea. The magistrate made a
finding, adopted by the trial court that appellant had been duly admonished. Under
such circumstances, a prima facie showing exists that appellant’s plea was voluntary.
See Martinez, 981 S.W.2d at 197. Moreover, the order of deferred adjudication
–11– contains recitals that appellant was admonished as required by law and it appeared
appellant entered his plea freely and voluntarily and was aware of the consequences
of his plea. A judgment’s recitals are binding in the absence of direct proof of their
falsity. Guerrero, 400 S.W.3d at 583. A habeas applicant attacking the
voluntariness of his plea bears the burden of defeating the ordinary presumption of
the correctness of the recitals in the judgment. Id.
Against such presumptions, appellant offers little evidence to support his
claims. The trial court expressly found the attestations in appellant’s affidavit “to
be self-serving and not credible.” We are bound by the trial court’s fact finding on
appellant’s credibility. See Torres, 483 S.W.3d at 42.
Appellant’s argument that the absence of evidence in the record should be
resolved in his favor misplaces the burden of proof he bears to show his plea was
involuntary. Appellant “has the burden to properly initiate the completion of a
record sufficient to illustrate reversible error.” Perez v. State, 261 S.W.3d 760, 764
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). When we cannot adequately
address an issue because the issue involves matters missing from the record due to
appellant’s failure to request or pay for the record, appellant effectively waives
appellate review of the affected issue. Id.; see also Houston, 201 S.W.3d at 218
(defendant who waives right to have court reporter record plea proceedings and
subsequently challenges voluntariness of plea nevertheless retains burden to ensure
sufficient record is presented to establish error); Collins v. State, No. 05-18-00498-
–12– CR, 2019 WL 2648168, at *2 (Tex. App.—Dallas June 27, 2019, pet. ref’d) (mem.
op., not designated for publication) (When appellant fails to file reporter’s record
necessary for appellate review, presumption arises that omitted reporter’s record
would support trial court’s judgment).
As the trial court stated on the record, a reporter’s record of the plea hearing
would show what translation services were provided to appellant when he entered
his plea. By declining the trial court’s offer to allow him to determine whether he
could obtain the reporter’s record of the plea, appellant failed to submit a sufficient
record to review his first issue. See Perez, 261 S.W.3d at 764.
Likewise, the fact that trial counsel’s affidavit, submitted by appellant, does
not reveal whether trial counsel can speak Spanish is not evidence supporting
appellant’s claims. Appellant could have called trial counsel to testify about his
ability to speak Spanish, but he failed to present such testimony. Trial counsel’s
affidavit shows eighty percent of trial counsel’s practice is representing Hispanics,
including many immigrants from Mexico and Central America. It would be
reasonable for the trial court to infer that trial counsel can speak Spanish well enough
to communicate with his Spanish-speaking clients. Moreover, in his own affidavit,
appellant avers that counsel told him he had been given probation and would not
suffer immigration consequences as a result of his plea, thus admitting that trial
counsel was able to communicate with him.
–13– The Spanish language translation of appellant’s conditions of community
supervision and a requirement that he attend English language classes as a condition
of community supervision is evidence that the trial court was aware appellant did
not speak English and was accommodating his need for Spanish-language
assistance.
Viewed in the light most favorable to the trial court’s findings, the evidence
shows appellant signed plea papers indicating he understood his plea and was
making it voluntarily. In the absence of a reporter’s record that would establish
definitively what translation services appellant received during the plea hearing, the
preponderance of the available credible evidence does not support appellant’s
contention. We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant contends trial counsel rendered ineffective
assistance thus rendering his guilty plea involuntary.
A habeas applicant claiming the applicant entered an involuntary guilty plea
due to ineffective assistance of counsel must satisfy the two-pronged Strickland
standard. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Torres, 483 S.W.3d at 43; see
also Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). The first prong
requires the applicant to show counsel’s performance was deficient in that it failed
to meet an objective standard of reasonableness under prevailing professional norms.
Ex parte Bowman, 533 S.W.3d 337, 349–50 (Tex. Crim. App. 2017); see also
–14– Strickland, 466 U.S. at 687–88. In evaluating counsel’s performance under the first
prong, we assess the reasonableness of counsel’s performance under the
circumstances of the particular case viewed at the time counsel rendered assistance.
Bowman, 533 S.W.3d at 350. We presume counsel “rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 350 (quoting Strickland, 466 U.S. at 690). Counsel’s deficient
performance must be affirmatively demonstrated on the record and not require
retrospective speculation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). We judge the totality of trial counsel’s representation rather than focusing
narrowly on isolated acts or omissions, and the performance must be evaluated from
counsel’s viewpoint at the time of representation and not with the benefit of
hindsight. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
The second prong requires the applicant to show counsel’s deficient
performance affected the plea process thus causing the applicant to suffer prejudice.
Hill, 474 U.S. at 59; Torres, 483 S.W.3d at 43. An applicant meets the prejudice
prong by showing a reasonable probability exists that, but for counsel’s deficient
performance, the applicant would have insisted on going to trial rather than
accepting the offer and pleading guilty. Hill, 474 U.S. at 59; Torres, 483 S.W.3d at
43. In evaluating the evidence of appellant’s decision making regarding his plea,
“[c]ourts 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.
–15– Judges should instead look to contemporaneous evidence to substantiate a
defendant's expressed preferences.” Lee v. U.S., 137 S. Ct. 1958, 1967 (2017).
The applicant’s claim fails unless the applicant proves both prongs of the
Strickland standard by a preponderance of the evidence. Perez v. State, 310 S.W.3d
890, 893 (Tex. Crim. App. 2010). Failure to prove either prong defeats a claim of
ineffective assistance. Id.
Deportation Advice
Under federal law, an alien convicted of a drug offense, other than possession
of a relatively small amount of marijuana, is deportable. See 8 U.S.C.A.
§ 1227(a)(2)(B)(i). Placement on deferred adjudication in Texas is considered a
conviction for purposes of federal immigration law. See Moosa v. I.N.S., 171 F.3d
994, 1005–06 (5th Cir. 1999); Guerrero, 400 S.W.3d at 588 & n.52; see also 8
U.S.C.A. § 1101(a)(48)(A).
In 2010, the Supreme Court decided Padilla v. Kentucky and pronounced that
the Sixth Amendment right to effective assistance of counsel requires counsel to
advise a non-citizen client about potential deportation. Padilla v. Kentucky, 559 U.S.
356, 366–67 (2010). When the law is “not succinct and straightforward,” counsel
must advise the client of the possibility that the plea may carry a risk of adverse
immigration consequences. Id. at 369; Torres, 483 S.W.3d at 44. When, however
a client has committed an offense that would trigger mandatory deportation under
–16– federal law, counsel must correctly advise the client that the client faces mandatory
deportation. Padilla, 559 U.S. at 369; Torres, 483 S.W.3d at 44.
After the decision in Padilla was announced, it was unclear for a period of
time whether Padilla would be applied retroactively or would only affect plea advice
rendered after Padilla was issued. Subsequent decisions made clear that because
Padilla announced a new rule, its specific advising requirements regarding
deportation did not apply to final convictions before Padilla was issued, and habeas
applicants challenging their pre-Padilla pleas could not benefit from its holding. See
Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013); Ex parte De Los Reyes, 392
S.W.3d 675, 679 (Tex. Crim. App. 2013).
Therefore, for cases involving pre-Padilla pleas, a habeas applicant may not
raise a Padilla claim asserting trial counsel rendered constitutionally ineffective
assistance by failing to advise the applicant about the deportation consequences of a
guilty plea; however, if the record shows counsel advised the applicant about
deportation consequences, while under no obligation to do so, the advice rendered
must be accurate or it may constitute ineffective assistance. See Ex parte Garcia,
547 S.W.3d 228, 229–30 (Tex. Crim. App. 2018).
Although he entered his plea in 2007, appellant contends Padilla applies to
his case because he was placed upon deferred adjudication and discharged in 2012
without a “final conviction.” Because Texas law does not consider placement on
deferred adjudication to be a conviction, appellant contends he did not have a final
–17– conviction before Padilla was decided and, therefore, Padilla should apply to his
case.
In Guerrero, the court of criminal appeals considered whether Padilla should
apply retroactively to a defendant facing deportation who had been placed on
deferred adjudication and had successfully served out his community supervision.
See Guerrero, 400 S.W.3d at 587. Because the defendant had served out his term of
community supervision, he never had a final conviction under Texas law. Id. at 587–
88. Noting that Congress had explicitly rejected the notion of treating deferred
adjudication as less than a final conviction for purposes of federal immigration law,
the court determined the defendant had a “final conviction” for purposes of applying
Padilla and federal immigration law when he was placed on deferred adjudication
in 1998 and thus Padilla would not apply retroactively to his case. Id. at 588.
Subsequent decisions have followed the reasoning of Guerrero and refused to
apply Padilla retroactively to defendants who entered pleas and received deferred
adjudication before Padilla despite the defendant not having a final conviction for
purposes of Texas law. See Ex parte Quyen Trung Ly, 409 S.W.3d 843, 843 n.1
(Tex. App.—Beaumont 2013, no pet.); see also Ex parte Huerta, No. 01-14-00644-
CR, 2015 WL 545519, at *3–4 & n.4 (Tex. App.—Houston [1st Dist.] Feb. 10, 2015,
no pet.) (mem. op., not designated for publication); Ex parte Carpio-Cruz, No. 08-
10-00240-CR, 2014 WL 5316988, at *3 (Tex. App.—El Paso Oct. 17, 2014, no pet.).
–18– Like the defendant in Guerrero, appellant was never adjudicated guilty and
thus does not have a “final conviction” under Texas law. However, also like the
defendant in Guerrero, appellant was “finally convicted” for purposes of applying
Padilla and federal immigration law at the time he was placed on community
supervision in 2007. See Guerrero, 400 S.W.3d at 588. Thus, we apply pre-Padilla
standards to determine whether appellant has shown he received ineffective
assistance of counsel. Id. at 588; De Los Reyes, 392 S.W.3d at 679.
In 2007 when appellant entered his plea, a guilty plea taken in Texas was
considered to be voluntary if the defendant was apprised of the direct consequences
of his plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999). Lack
of knowledge of a collateral consequence of the guilty plea, such as the prospect that
the guilty plea would result in deportation, was not a basis for overturning a guilty
plea as involuntary. See id.; Ex parte Roldan, 418 S.W.3d 143, 147 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). However, if an attorney, although not required
to do so, chose to offer advice about deportation consequences of a plea and
affirmatively misadvised the client, such incorrect advice could constitute
ineffective assistance. See Garcia, 547 S.W.3d at 230.
We must presume trial counsel rendered effective assistance unless deficient
performance is reflected in the record. See Bowman, 533 S.W.3d at 350; Lopez,
343 S.W.3d at 142. Noting that counsel does not remember how he advised him,
appellant asks us to accept his representation that he was affirmatively misadvised
–19– that there would be no immigration consequences to his plea. We are bound,
however, by the trial court’s fact finding that appellant’s affidavit is self-serving and
not credible. See Torres, 483 S.W.3d at 42.
Other than appellant’s affidavit, the only evidence in the record reflecting trial
counsel’s immigration advice to appellant is trial counsel’s affidavit. Trial counsel
averred that his standard advice, given to all clients who are not citizens, is that the
client’s criminal conviction “can and will result in deportation.” The trial court did
not make an express finding that trial counsel’s statement was credible, but did make
a finding that trial counsel’s representation that he advises each client who is not a
citizen about the adverse immigration consequences of a guilty plea was credible.
On the record before us, we cannot conclude appellant has shown he received
“affirmative misadvice” about the deportation consequences of his plea. Unlike the
advice given in Garcia, the advice appellant received from trial counsel that he “can
and will be deported” is correct. See Garcia, 547 S.W.3d at 228–29 (advising client
that conviction “would probably not result in deportation” and he “would probably
be okay” constituted affirmative misadvice when client faced mandatory removal);
see also Ex parte Ordonez, No. 07-18-00445-CR, 2019 WL 5382630, at *3–4 (Tex.
App.—Amarillo Oct. 21, 2019, pet. ref’d) (mem. op., not designated for publication)
(counsel’s pre-Padilla advice that defendant facing mandatory deportation “may” be
deported was not affirmative misadvice).
–20– We conclude appellant has not shown trial counsel rendered assistance below
an objective standard of reasonableness as it existed in 2007. See Garcia, 547
S.W.3d at 230; Jimenez, 987 S.W.2d at 888; Roldan, 418 S.W.3d at 147. Thus, we
conclude appellant has not carried his burden to show a violation of the first prong
of the Strickland standard. See Torres, 483 S.W.3d at 44–45.
Because we conclude the trial court did not err in determining appellant could
not meet the first Strickland prong, we need not consider appellant’s arguments
regarding the second prong. See Strickland, 466 U.S. at 697; Perez, 310 S.W.3d at
893. We overrule appellant’s second issue.
We affirm the trial court’s order denying relief on appellant’s application for
writ of habeas corpus.
/David Evans/ DAVID EVANS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 191340F.U05
–21– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EX PARTE CARLOS On Appeal from the 204th Judicial MALDONADO District Court, Dallas County, Texas Trial Court Cause No. WX19-00005- No. 05-19-01340-CR Q. Opinion delivered by Justice Evans. Chief Justice Burns and Justice Pedersen, III participating.
Based on the Court’s opinion of this date, the order denying relief on appellant’s application for writ of habeas corpus is AFFIRMED.
Judgment entered December 22, 2020
–22–