NUMBER 13-24-00264-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE LUIS CORTINA
ON APPEAL FROM THE 139TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Fonseca Memorandum Opinion by Chief Justice Tijerina
Appellant Luis Cortina pleaded guilty to aggravated sexual assault of a child, a
first-degree felony, and he was placed on ten years’ deferred-adjudication community
supervision. See TEX. PENAL CODE ANN. § 22.021(A). By his sole issue on appeal, Cortina
argues that the trial court erred by denying his application for writ of habeas corpus due
to ineffective assistance of counsel. We affirm.
I. BACKGROUND
On June 1, 2013, Cortina was arrested on charges of continuous sexual abuse of
a young child, two counts of aggravated sexual assault of a child, and two counts of sexual assault. See id. § 22.021. He was indicted on February 27, 2018, and released on bond.
On January 18, 2024, pursuant to a plea agreement, Cortina pleaded guilty to aggravated
sexual assault of a child. The State dismissed the remaining charges, and the trial court
deferred adjudication and placed Cortina on community supervision for ten years.
Thereafter, Immigration and Customs Enforcement took Cortina into its custody, and
Cortina is currently pending removal.
On April 3, 2024, Cortina filed an application for writ of habeas corpus on the
grounds that he was provided ineffective assistance of counsel. See TEX. CODE CRIM.
PROC. ANN. art. 11.072. According to Cortina, because his trial counsel failed to advise
him “that as a direct consequence of his plea he would automatically be subject to
deportation/removal from the United States . . . his plea of guilty was not knowingly,
intelligently, and voluntarily entered.”
The trial court conducted an evidentiary hearing on Cortina’s application for writ of
habeas corpus. Cortina’s trial counsel, Cortina, and Cortina’s wife Stephanie Cortina
testified at the habeas hearing.
Trial counsel testified that Cortina was facing up to life imprisonment and that
Cortina’s “primary focus” was to stay out of prison. Although Cortina was concerned about
his immigration consequences, trial counsel reiterated that Cortina’s primary goal was to
avoid a prison sentence. Trial counsel admitted that he “had no reason to believe [Cortina]
was going to be picked up by the federal government.”
The trial court stated that Cortina attended twenty-three different hearings, and it
“talked to him about the consequences” of his guilty plea “more than once.” Specifically,
the trial court stated: “I talked to him about it and I was very clear when I talked to him
2 about it. Not once but a couple of times I talked to him about the immigration
consequences [of pleading guilty,] and he understood. He didn’t say, I don’t understand.”
Cortina testified that before he entered his guilty plea, he asked trial counsel at
least four times if it would affect his immigration status. According to Cortina, trial counsel
informed him that there was a “50 percent chance” he would be deported, “so [he] took
it.” Cortina insisted that had he known he would be deported, he would not have pleaded
guilty. In fact, Cortina expressed that he would rather have faced life in prison from the
jury than face the consequences in immigration court. Yet, Cortina stated that when the
trial court admonished him about the consequences of his guilty plea, he still agreed to
plead guilty because he did not “want to go to prison. And [he] just wanted to be out on
probation and keep going on with [his] life and stay on probation and keep working.”
Stephanie testified that she, too, asked trial counsel about Cortina’s immigration
consequences—most recently right before his guilty plea. According to Stephanie, trial
counsel asked Cortina how many years Cortina had resided in the United States to which
Cortina responded, “over 20 years.” Stephanie stated that trial counsel responded, “You
should be fine then.”
The trial court denied Cortina’s application for writ of habeas corpus and issued
findings of fact and conclusions of law. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Cortina argues that his guilty plea was rendered unintelligently, unknowingly, and
involuntarily due to his trial counsel’s failure to advise him that his guilty plea would subject
him to mandatory deportation.
3 A. Applicable Law
“Article 11.072 is ‘the exclusive means by which the district courts may exercise
their original habeas jurisdiction under Article V, Section 8, of the Texas Constitution’ in
cases involving an individual who is serving a term of community supervision.” Ex parte
Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016) (quoting Ex parte Villanueva, 252
S.W.3d 391, 397 (Tex. Crim. App. 2008)). In an Article 11.072 proceeding, 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. An applicant “bears the burden of proving his claim
by a preponderance of the evidence.” Id. at 43.
To be entitled to post-conviction relief based on ineffective assistance of counsel,
an applicant must demonstrate that (1) trial counsel’s performance was deficient, in that
it fell below an objective standard of reasonableness, and (2) prejudice as a result of trial
counsel’s errors, in that but for these errors, there is a reasonable probability of a different
outcome. Id.; see also Strickland v. Washington, 466 U.S. 668, 687 (1984). In a collateral
challenge to a guilty plea, the focus of the prejudice inquiry is whether trial counsel’s
ineffective performance affected the outcome of the plea process, and whether an
applicant has shown, but for trial counsel’s errors, the applicant would not have pleaded
guilty and would have insisted on going to trial. Ex parte Torres, 483 S.W.3d at 47.
B. Discussion
Cortina argues his counsel was ineffective due to his “complete failure to advise
him that the conviction would render him an aggravated felon for immigration purposes,
subjecting him to mandatory deportation and his unavoidable inability to maintain
permanent residency immigration status in the United States.” However, we need not 4 address the deficient-performance prong of the Strickland analysis because Cortina
cannot “show a reasonable probability that [trial] counsel’s errors affected the outcome of
the plea proceedings, in the sense that, but for [trial] counsel’s errors, the applicant would
have rejected the plea bargain and instead pursued a trial.” Id. at 46.; see Strickland, 466
U.S. at 670 (“A court need not first determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, that course should be followed.”); Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App.
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NUMBER 13-24-00264-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE LUIS CORTINA
ON APPEAL FROM THE 139TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Fonseca Memorandum Opinion by Chief Justice Tijerina
Appellant Luis Cortina pleaded guilty to aggravated sexual assault of a child, a
first-degree felony, and he was placed on ten years’ deferred-adjudication community
supervision. See TEX. PENAL CODE ANN. § 22.021(A). By his sole issue on appeal, Cortina
argues that the trial court erred by denying his application for writ of habeas corpus due
to ineffective assistance of counsel. We affirm.
I. BACKGROUND
On June 1, 2013, Cortina was arrested on charges of continuous sexual abuse of
a young child, two counts of aggravated sexual assault of a child, and two counts of sexual assault. See id. § 22.021. He was indicted on February 27, 2018, and released on bond.
On January 18, 2024, pursuant to a plea agreement, Cortina pleaded guilty to aggravated
sexual assault of a child. The State dismissed the remaining charges, and the trial court
deferred adjudication and placed Cortina on community supervision for ten years.
Thereafter, Immigration and Customs Enforcement took Cortina into its custody, and
Cortina is currently pending removal.
On April 3, 2024, Cortina filed an application for writ of habeas corpus on the
grounds that he was provided ineffective assistance of counsel. See TEX. CODE CRIM.
PROC. ANN. art. 11.072. According to Cortina, because his trial counsel failed to advise
him “that as a direct consequence of his plea he would automatically be subject to
deportation/removal from the United States . . . his plea of guilty was not knowingly,
intelligently, and voluntarily entered.”
The trial court conducted an evidentiary hearing on Cortina’s application for writ of
habeas corpus. Cortina’s trial counsel, Cortina, and Cortina’s wife Stephanie Cortina
testified at the habeas hearing.
Trial counsel testified that Cortina was facing up to life imprisonment and that
Cortina’s “primary focus” was to stay out of prison. Although Cortina was concerned about
his immigration consequences, trial counsel reiterated that Cortina’s primary goal was to
avoid a prison sentence. Trial counsel admitted that he “had no reason to believe [Cortina]
was going to be picked up by the federal government.”
The trial court stated that Cortina attended twenty-three different hearings, and it
“talked to him about the consequences” of his guilty plea “more than once.” Specifically,
the trial court stated: “I talked to him about it and I was very clear when I talked to him
2 about it. Not once but a couple of times I talked to him about the immigration
consequences [of pleading guilty,] and he understood. He didn’t say, I don’t understand.”
Cortina testified that before he entered his guilty plea, he asked trial counsel at
least four times if it would affect his immigration status. According to Cortina, trial counsel
informed him that there was a “50 percent chance” he would be deported, “so [he] took
it.” Cortina insisted that had he known he would be deported, he would not have pleaded
guilty. In fact, Cortina expressed that he would rather have faced life in prison from the
jury than face the consequences in immigration court. Yet, Cortina stated that when the
trial court admonished him about the consequences of his guilty plea, he still agreed to
plead guilty because he did not “want to go to prison. And [he] just wanted to be out on
probation and keep going on with [his] life and stay on probation and keep working.”
Stephanie testified that she, too, asked trial counsel about Cortina’s immigration
consequences—most recently right before his guilty plea. According to Stephanie, trial
counsel asked Cortina how many years Cortina had resided in the United States to which
Cortina responded, “over 20 years.” Stephanie stated that trial counsel responded, “You
should be fine then.”
The trial court denied Cortina’s application for writ of habeas corpus and issued
findings of fact and conclusions of law. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Cortina argues that his guilty plea was rendered unintelligently, unknowingly, and
involuntarily due to his trial counsel’s failure to advise him that his guilty plea would subject
him to mandatory deportation.
3 A. Applicable Law
“Article 11.072 is ‘the exclusive means by which the district courts may exercise
their original habeas jurisdiction under Article V, Section 8, of the Texas Constitution’ in
cases involving an individual who is serving a term of community supervision.” Ex parte
Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016) (quoting Ex parte Villanueva, 252
S.W.3d 391, 397 (Tex. Crim. App. 2008)). In an Article 11.072 proceeding, 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. An applicant “bears the burden of proving his claim
by a preponderance of the evidence.” Id. at 43.
To be entitled to post-conviction relief based on ineffective assistance of counsel,
an applicant must demonstrate that (1) trial counsel’s performance was deficient, in that
it fell below an objective standard of reasonableness, and (2) prejudice as a result of trial
counsel’s errors, in that but for these errors, there is a reasonable probability of a different
outcome. Id.; see also Strickland v. Washington, 466 U.S. 668, 687 (1984). In a collateral
challenge to a guilty plea, the focus of the prejudice inquiry is whether trial counsel’s
ineffective performance affected the outcome of the plea process, and whether an
applicant has shown, but for trial counsel’s errors, the applicant would not have pleaded
guilty and would have insisted on going to trial. Ex parte Torres, 483 S.W.3d at 47.
B. Discussion
Cortina argues his counsel was ineffective due to his “complete failure to advise
him that the conviction would render him an aggravated felon for immigration purposes,
subjecting him to mandatory deportation and his unavoidable inability to maintain
permanent residency immigration status in the United States.” However, we need not 4 address the deficient-performance prong of the Strickland analysis because Cortina
cannot “show a reasonable probability that [trial] counsel’s errors affected the outcome of
the plea proceedings, in the sense that, but for [trial] counsel’s errors, the applicant would
have rejected the plea bargain and instead pursued a trial.” Id. at 46.; see Strickland, 466
U.S. at 670 (“A court need not first determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, that course should be followed.”); Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012) (concluding that a reviewing court need not consider
both prongs of the Strickland test and can dispose of an ineffectiveness claim if the
defendant fails to demonstrate sufficient prejudice).
In this case, there was evidence that Cortina mainly desired to avoid a conviction
and jail time. See id. at 49 (observing that nowhere in appellant’s affidavit or in his
pleadings to the habeas court did he mention his concern for potential immigration
consequences and instead focused on his desire to avoid conviction and jail time). Trial
counsel testified that Cortina’s goal was to stay out of prison, and his duty as trial counsel
was to achieve that goal. Additionally, habeas counsel asked Cortina why he still decided
to plead guilty after the trial court had admonished him that pleading guilty may result in
his removal from the United States. Cortina responded, “Because I did not want to go to
prison. And I just wanted to be out on probation and keep going on with my life and stay
on probation and keep working.” Thus, the totality of circumstances indicate that, in his
communications with trial counsel, Cortina placed a greater emphasis on avoiding prison
time rather than his immigration consequences, which does not weigh in favor of finding
prejudice. See id. at 48‒49. 5 Moreover, in its findings of fact, the trial court found that Cortina’s “after-the-fact
contention that in other circumstances he would have proceeded to trial is self-serving
and wholly lacking in credibility.” We agree, and we defer to the trial court’s factual findings
that by taking the State’s plea agreement Cortina avoided a mandatory minimum
sentence of twenty-five years’ imprisonment, potential life imprisonment, and potential
twenty years’ imprisonment. See id. at 50; see also Ex parte Martin, No. 01-17-00025-
CR, 2019 WL 2292631, at *9 (Tex. App.—Houston [1st Dist.] May 30, 2019, no pet.)
(mem. op., not designated for publication) (“Compared to the punishment risked at trial,
the plea bargain’s terms were significantly more favorable. Martin did not present any
evidence showing that another plea deal would have helped him avoid negative
immigration consequences.”). By taking the plea deal, Cortina avoided the certainty of a
term of imprisonment upon conviction, as community supervision was not possible, and
the sentences could have been ordered to run consecutively rather than concurrently.
See Ex parte Villanueva, 252 S.W.3d at 397.
The trial court’s conclusion that proceeding to trial would not have been rational is
supported by the facts that Cortina confessed to a first-degree felony offense; that his
primary concern at the time of his arrest and plea was staying out of prison; that the trial
court admonished him about how his immigration status would be impacted by his plea;
and that Cortina’s plea paperwork included an immigration-consequences admonishment
initialed by Cortina. Based on these facts, the record
makes it appear unlikely that, had appellant been correctly advised that he was subject to mandatory deportation, as opposed to the advice he received regarding a mere risk of deportation, the correct advice would have been the tipping point that would have caused him to reject the plea bargain and avail himself of a trial, thereby risking imprisonment and eventual deportation following a conviction at trial.
6 Ex parte Torres, 483 S.W.3d at 50.
Moreover, the record is “devoid of any suggestion that [Cortina] had a possible
defense to prosecution” on any of his charges, the punishment of which is up to life
imprisonment. Id. at 51; see also Ex parte Martin, 2019 WL 2292631, at *9 (“Martin failed
to assert any actual defense and no affirmative evidence of factual or legal defenses was
presented to the habeas court. Moreover, there is no evidence in the record that Martin
believed that he was not guilty of the offense.”). Instead, the habeas court found that
“[w]hile the outcome of trial is always uncertain, nothing before the [habeas c]ourt
provided a basis for believing there existed a high likelihood of acquittal by a jury.” Thus,
Cortina’s plea bargain allowed him to entirely avoid jail time and additionally provided for
the dismissal of other felony charges, including continuous sexual assault of a child,
aggravated sexual assault of a child, and two counts of sexual assault of a child. See TEX.
PENAL CODE ANN. §§ 21.02(h), 22.011(f), 22.021(e); see also Ex parte Hurtado, No. 13-
16-00512-CR, 2017 WL 3084287, at *4 (Tex. App.—Corpus Christi–Edinburg Jul. 20,
2017, no pet) (mem. op., not designated for publication) (“The surrounding circumstance
of available evidence, the possibility of a sixty-year prison sentence, and the
unpredictability of a jury decision lead us to conclude that, even assuming trial counsel
acted deficiently, such alleged misadvice did not prejudice appellant’s plea.”); Ex parte
Martin, 2019 WL 2292631, at *10 (“The record in this case establishes that there is no
reasonable probability that, had Rosen informed Martin of the immigration consequences
of his guilty plea, Martin would have rejected the State's plea offer, pleaded not guilty,
and insisted on taking his case to trial, and that it would have been rational for Martin to
have done so.”).
7 As a result, Cortina has failed to present facts that adequately demonstrate
prejudice. “In view of the totality of the record, and deferring to the trial court’s factual
findings, we conclude that appellant has failed to demonstrate that, but for counsel’s
errors, he would have rejected the plea bargain and pursued a trial. His claim of prejudice,
therefore, fails.” Ex parte Torres, 483 S.W.3d at 49.
In view of the lack of any evidence from Cortina as to how he was prejudiced and
in the absence of any credible facts in the record showing that, but for counsel’s erroneous
advice, Cortina would have rationally decided to reject the plea bargain and instead
pursue a trial. See id. at 51. We overrule Cortina’s sole issue.1
III. CONCLUSION
We affirm the judgment of the trial court.
JAIME TIJERINA Chief Justice
Do not publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed on the 7th day of August, 2025.
1 On September 19, 2024, the State filed a motion to strike the appendix to Cortina’s second amended brief. We hereby grant the State’s motion, and we do not consider the documents referenced in Cortina’s appendix that were not before the trial court. See Gonzalez v. Villarreal, 251 S.W.3d 763, 777 (Tex. App.—Corpus Christi–Edinburg 2008, pet. dism’d) (“An appellate court cannot consider documents cited in a brief and attached as appendices if they are not formally included in the record on appeal.”).