EX PARTE BUENROSTRO v. << (2025)

OPINION

The State appeals the habeas court's order granting the relief requested in appellee Isaias Buenrostro's article 11.072 writ of habeas corpus application. Appellee claimed his guilty plea was involuntary due to his trial counsel's failure to advise him of the certainty of deportation and other immigration consequences associated with his plea.

In two issues the State contends the habeas court abused its discretion because (1) the Supreme Court's holding in Padilla v. Kentucky – requiring trial counsel to advise a noncitizen client of the deportation consequences of a guilty plea – does not apply to appellee because he was already subject to deportation due to his undocumented status; and (2) appellee's claim of ineffective assistance of counsel fails because there is no record support for the habeas court's finding of prejudice.

We conclude that appellee failed to show – and on this record cannot show – the existence of a reasonable probability that the result of his plea proceeding would have been different absent counsel's allegedly deficient performance. Therefore, without addressing the State's first issue, we sustain the State's second issue, reverse the habeas court's order granting relief, and render judgment denying appellee's requested habeas corpus relief.

I. BACKGROUND FACTS

Appellee is a citizen of Mexico and not of the United States.¹ By his own admission, he entered the United States “without inspection” sometime in January 2000.² Therefore, at all times pertinent to the issues presented by this appeal and the proceedings in the trial court, appellee is and was deportable. See 8 U.S.C. § 1227(a)(1)(B).³

In 2017, appellee was charged by indictment with possession of cocaine in an amount less than one gram. Appellee entered a negotiated plea of guilty and judicially confessed to the reduced charge of attempted possession, a class A misdemeanor. The trial court accepted appellee's guilty plea and judicial confession to the reduced charge. In accordance with the terms of the plea agreement, the court deferred a finding of guilt and placed appellee on one year of community supervision. The court subsequently dismissed the case after appellee successfully completed his term of community supervision.

In 2024, appellee filed the present application for writ of habeas corpus, claiming his guilty plea was involuntary because trial counsel failed to advise him of the certainty of deportation and other immigration consequences associated with his plea.⁴ Appellee's claim of ineffective assistance relied on Padilla v. Kentucky, which held that a lawyer has a duty to advise a noncitizen client of the deportation consequences of pleading guilty. 559 U.S. 356, 364 (2010). The application alleged appellee was prejudiced because he would not have pleaded guilty had counsel advised him about deportation and other immigration consequences. Appellee filed two affidavits with his application – one from himself and the other from his immigration attorney.

Appellee asserted in his affidavit, “I advised [counsel] that I was not a legal resident, and I explained to him that I did not want to be deported or for this to affect me.” Appellee averred that his counsel informed him the reduced misdemeanor charge “was not going to affect [him] in the future” and that his counsel advised him to accept the State's offer. Appellee further explained that “[counsel] never advised me that I would have consequences in the future regarding my illegal status or that it can led [sic] to deportation.”

In his affidavit, appellee's immigration attorney averred that appellee was currently in removal proceedings before the Dallas Immigration Court. Further, the attorney swore that, as a result of his guilty plea, appellee was no longer eligible to apply to remain in the United States and faced a lifetime bar from re-entering the United States.

Appellee's trial counsel filed an affidavit regarding his representation of appellee. In his affidavit, appellee's trial counsel averred:

I specifically asked him if he was a citizen of USA and his response was no, I told him if he is not a USA citizen and irrespective of his case being reduced to Class A misdemeanor that he may have adverse immigration consequences that may prevent him from becoming a permanent resident or citizen and may be subject to deportation. And also told him the Judge will ask him the same question. I also advised him of his right to consult an immigration attorney before we take the plea. He decided to take the plea.

The State filed a response and argued that Padilla did not apply to appellee because appellee was subject to deportation prior to his plea due to his undocumented status and that even if Padilla did apply, the record did not support the habeas court's finding of prejudice.

Without holding a hearing, the habeas court granted appellee's application and made findings of fact and conclusions of law.⁵ In its findings of fact and conclusions of law, the habeas court stated, “[A]ny conviction for a drug charge other than a small amount of marijuana prohibits a detainee from qualifying for an immigration bond, disqualifies him from virtually all immigration benefits, an [sic] all but causes deportation.” The habeas court noted that trial counsel's affidavit showed “he only advised applicant that he may have adverse immigration consequences from the reduced plea to a misdemeanor.” The court stated this advice was deficient because counsel was required to advise appellee “that his plea would subject him to automatic deportation.” Further, the court declared, “It was not enough to advise applicant that he faced the possibility of exclusion or deportation.” The court also stated that appellee was prejudiced because he would have proceeded to a trial on a plea of “not guilty” had counsel advised him of the certainty of deportation. Based on these findings, the habeas court concluded appellee was denied effective assistance of counsel and his plea was involuntary. The habeas court granted relief. This State's appeal followed.

II. STANDARD OF REVIEW

A defendant convicted and ordered to community supervision may attack the validity of the conviction by way of habeas corpus if he is either (1) confined or restrained as a result of a judgment of conviction ordering community supervision, or (2) no longer confined, but is subject to collateral legal consequences resulting from the conviction. See Tex. Code Crim. Proc. Ann. art. 11.072.

We review the granting of habeas corpus relief under an abuse-of-discretion standard. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Salazar, 510 S.W.3d 619, 625 (Tex. App.—El Paso 2016, pet. ref'd). An applicant seeking post-conviction habeas corpus relief bears the burden of establishing by a preponderance of the evidence that the facts entitle him to relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).

We afford almost complete deference to the habeas court's determination of historical facts supported by the record, especially when those factual findings rely upon an evaluation of credibility and demeanor. Ex parte Ramirez, 652 S.W.3d 841, 846 (Tex. App.—Austin 2022, no pet). We apply the same deference in reviewing the habeas court's application of law to fact questions, if the resolution of those determinations rests upon an evaluation of credibility and demeanor; if the outcome of those ultimate questions turns upon an application of legal standards, we review the habeas court's determination de novo. Id.

The test for whether the trial court abused its discretion is whether its ruling was arbitrary or unreasonable, and the mere fact that a habeas court may decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion occurred. Ex parte Uribe, 516 S.W.3d 658, 665 (Tex. App.—Fort Worth 2017, pet. ref'd). We will overrule the trial court's ruling on an application for a writ of habeas corpus only if the court's ruling was outside the zone of reasonable disagreement. Id.; Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet. ref'd) (“[A]bsent an abuse of discretion, we must affirm a habeas court's decision on whether to grant the relief requested in a habeas corpus application.”).

A person attacking the validity of his prior guilty plea as that plea is reflected in the written judgment “bears the burden of defeating the normal presumption that recitals in the written judgment are correct. Those written recitals are ‘binding in the absence of direct proof of their falsity.’ ” Guerrero, 400 S.W.3d at 583. A defendant's sworn representation in a plea proceeding that his guilty plea is knowing, intelligent, and voluntary “constitute[s] a formidable barrier in any subsequent collateral proceedings,” such as an application for habeas corpus. Kniatt, 206 S.W.3d at 664 (quoting Blackledge v. Allison, 431 U.S. 63, 73–74 (1977)).

III. NO INEFFECTIVE ASSISTANCE OF COUNSEL UNDER PADILLA

In his habeas application, appellee claimed his plea was involuntary due to his trial counsel's failure to advise him of the certainty of deportation and other immigration consequences associated with his plea and, but for that failure, he would not have pleaded guilty but would have gone to trial. Thus, he asserted he received ineffective assistance of counsel. In its second issue, the State argues appellee failed to provide the habeas court with any evidence to support its finding of prejudice. We agree. Moreover, we note the record affirmatively establishes appellee's plea was knowingly, freely, and voluntarily made with a full understanding of the consequences – including the almost certain likelihood of deportation.

A. Applicable law

A defendant is entitled to effective assistance of counsel when entering a guilty plea. Strickland v. Washington, 466 U.S. 668, 686 (1984); Padilla, 559 U.S. at 364; Hill v. Lockhart, 474 U.S. 52, 58–59 (1985). A trial counsel who fails to inform a defendant about the direct consequences of a guilty plea provides ineffective assistance. Jackson v. State, 139 S.W.3d 7, 19 (Tex. App.—Fort Worth 2004, pet. ref'd); cf. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) (holding that a plea made without knowledge of its direct consequences is not entered into voluntarily, knowingly, and intelligently). Removal from the United States may be a consequence of a noncitizen's guilty plea to certain offenses. See Padilla, 559 U.S. at 360.⁶ Thus, to provide effective assistance, an attorney who represents a noncitizen in a criminal proceeding must advise the defendant of the consequences of his plea to the charged offense. Id. at 367.⁷

If the deportation consequences “of a particular plea are unclear or uncertain,” “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 369. “But when the deportation consequence is truly clear, ․ the duty to give correct advice is equally clear.” Id.⁸

To prevail on a claim of ineffective assistance of counsel, a habeas applicant bears the burden to prove, by a preponderance of the evidence, both deficient performance by counsel and prejudice suffered by the applicant. See Strickland, 466 U.S. at 687; Ex parte Bowman, 533 S.W.3d 337, 349 (Tex. Crim. App. 2017). Accordingly, as applied to the facts of this case, to demonstrate entitlement to post-conviction relief on the basis of ineffective assistance of counsel, appellee bore the burden to prove by a preponderance of the evidence that (1) his trial counsel failed to advise him that the offense to which he pleaded guilty would result in his removal from the United States, and (2) he was prejudiced as a result of counsel's error, in that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial. Strickland, 466 U.S. at 687, 693; see also Hill, 474 U.S. at 59; Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016).

The State first argues that the Padilla analysis does not apply to this proceeding because, unlike Padilla, appellee is not a legal permanent resident who became subject to automatic deportation as a result of his guilty plea. Nor is appellee an alien with temporary protected status.⁹ The State argues that neither the Supreme Court nor the Court of Criminal Appeals has extended Padilla to undocumented aliens who have no legal status to lose as a result of their guilty plea.

To the contrary, the State argues, the Court of Criminal Appeals has indicated an unwillingness to extend Padilla to undocumented aliens. See Guerrero, 400 S.W.3d at 589 (Even if acquitted, Guerrero “could have been deported immediately after walking out of the criminal courthouse,” so the “prospect of removal therefore could not reasonably have affected his decision to ․ plead guilty.”).

Because the prejudice prong of the Strickland test is dispositive, we need not resolve this first issue, whether the Padilla analysis extends to appellee. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

B. The habeas court's finding of prejudice was not supported by the record.

In the Padilla context, when the prejudice prong of the Strickland test is dispositive, we need address only that prong on appeal. Ex parte Murillo, 389 S.W.3d 922, 927 (Tex. App.—Houston [14th Dist.] 2013, no pet.), abrogated on other grounds by Chaidez v. United States, 568 U.S. 342, 357 (2013); Ex parte De Los Reyes, 392 S.W.3d 675, 678–79 (Tex. Crim. App. 2013). “[I]t is not necessary to determine whether trial counsel's representation was deficient if appellant cannot satisfy the second Strickland prong.” Id. (quoting My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd)). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697. This is such a case.

1. The record is devoid of evidence demonstrating appellee was prejudiced by his trial counsel's alleged deficiency of failing to inform him of the immigration consequences of his plea.

In its finding of fact and conclusions of law, the habeas court recites: “If defense counsel would have advised applicant of the correct consequences of his guilty plea, applicant would not have plead [sic] and instead would have proceeded to trial on the merits.” However, there is no evidence in the record to support this finding.

 Affidavits

Contrary to the habeas court's finding, trial counsel averred he informed appellee his guilty plea might lead to adverse immigration consequences including barring him from becoming a permanent citizen as well as subjecting him to deportation. And appellee included no facts in his affidavit to explain how trial counsel's allegedly deficient advice factored into his decision to plead guilty.

Appellee's habeas application included an affidavit from his immigration attorney, Jonathan Earthman. Earthman opined that appellee was prejudiced by his trial counsel's “failing to inform him of the severe consequences of his plea.” We note that Earthman did not, however, aver that appellee would have proceeded to trial had he known of the risk of deportation. Regardless, the statements in Earthman's affidavit could not serve as competent evidence upon which the habeas court could base its prejudice finding. An attorney's statement on the record can be accepted as evidence only when the attorney is speaking from first-hand knowledge. See Guerrero, 400 S.W.3d at 586 (holding habeas counsel's statements on the record were not competent evidence because counsel had no personal, first-hand knowledge of the events surrounding applicant's plea and, thus, his statements “were not a description of the facts as remembered from the former proceeding”); see also Gonzales v. State, 435 S.W.3d 801, 811 (Tex. Crim. App. 2014) (“We have held that statements of an attorney on the record may be considered as evidence only if the attorney ‘is speaking from first-hand knowledge.’ ”). Here, there is no evidence Earthman has any first-hand knowledge of the circumstances surrounding appellee's plea. Accordingly, Earthman's opinion on the issue of prejudice does not constitute competent evidence.

While the facts set forth in an affidavit may serve as evidence sufficient to support a habeas court's findings, the facts must actually be found in the affidavit. See Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b); Ex Parte Navarijo, 433 S.W.3d 558, 567 (Tex. Crim. App. 2014) (“This Court ordinarily defers to the habeas court's fact findings ․ when those findings are supported by the record.”) (emphasis added); Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex. Crim. App. 2007) (holding that “great deference” to the habeas court's recommendations is appropriate “as long as they are supported by the record”) (emphasis added). Neither trial counsel's nor appellee's affidavit contains any evidence to support the habeas court's finding that but for counsel's alleged error, appellee would not have pleaded guilty and would have insisted on going to trial.

 Appellee's pleading

We observe in appellee's habeas application he claimed he “never would have pleaded guilty if he had known it would render him removable.” Appellee's statement, however, is merely an allegation in an unsworn pleading and does not constitute evidence to support his writ application. See Guerrero, 400 S.W.3d at 583 (explaining that sworn pleadings are an inadequate basis upon which to grant writ relief); Ex parte Garcia, 353 S.W.3d 785, 789 (Tex. Crim. App. 2011) (holding that sworn pleadings provide an inadequate basis upon which to grant relief in habeas actions). On its own, appellee's pleading does nothing to advance or satisfy his burden of proof. Allegations in a habeas application must be proven, the same as any other allegations, in order to entitle the party to the relief sought. Ex parte Barganier, 23 S.W.2d 365, 365 (Tex. Crim. App. 1929) (“The averments in the application cannot be treated as a substitute for evidence.”). Appellee failed to provide proof of the allegation in his pleading. Thus, the allegation is not evidence upon which the habeas court could rely upon in granting habeas relief.

The record is devoid of evidence demonstrating appellee was prejudiced by his trial counsel's alleged deficiency of failing to inform him of the consequences of his plea.

2. The record contains affirmative evidence that appellee's plea was knowingly, freely, and voluntarily made with a full understanding of the immigration consequences.

The habeas court's prejudice finding is further undermined by appellee's plea paperwork where appellee swore his plea was knowingly, freely, and voluntarily made with a full understanding of the consequences – including the likelihood of deportation.

As a part of his plea, appellee was admonished that if he was not a citizen of the United States, a plea of guilty under current federal immigration rules was almost certain to result in his deportation, removal, or exclusion from admission to the United States or denial of naturalization. The plea agreement, signed by appellee and his counsel, along with the court and counsel for the State, reflects the court gave appellee the following admonishment:

If you are not a citizen of the United States, a plea of guilty or nolo contendere may, and under current Federal Immigration rules is almost certain to, result in your deportation, removal, exclusion for admission to the United States, or denial of naturalization.

(Emphasis in original.) Defendant then made the following statement:

I understand that if I am not a United States citizen, a plea of guilty or nolo contendere will probably result in my deportation from the United States, exclusion from admission to the United States, or denial of naturalization under Federal law.

(Emphasis in original.) Appellee then judicially confessed he committed the offense as alleged and waived his right to appeal. Finally, appellee acknowledged:

I, the defendant herein, acknowledge that my attorney has explained to me, and I have read[,] and I understand, all the foregoing admonitions and warnings regarding my rights and my plea, and that my statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences. I request that the Court accept all my waivers, statements, agreements, and my plea.

Appellee agreed and swore to these acknowledgements and was placed on community supervision pursuant to the trial court's order deferring adjudication – even though appellee knew he was not a citizen.

Appellee now renounces the acknowledgments he swore to by claiming his plea was involuntary. Yet, appellee did not “present any sworn testimony to contradict the written record” that he “voluntarily and knowingly” signed these statements in his plea. See State v. Quiroz Macedo, No. 08-20-00168-CR, 2024 WL 5248438, at *11 (Tex. App.—El Paso Dec. 30, 2024, pet. ref'd) (en banc) (mem. op., not designated for publication) (citing Guerrero, 400 S.W.3d at 586–87). Appellee did not provide the habeas court with any evidence that during the plea proceedings he did not know what he was signing or that he did not understand the admonishments he received or the consequences of his plea, including the “almost certain” consequence of his deportation and denial of naturalization. To the contrary, the trial court's admonishments as well as appellee's statements, waivers, and signature expressly reflect appellee's understanding at the time he entered his plea that he was almost certain to face removal and exclusion from the United States. The record establishes appellee had a full understanding of what he was doing and voluntarily chose to plead guilty to the offense of attempted possession rather than face trial before a jury.

In sum, appellee cannot show his trial counsel's advice prejudiced him because he “fully understood” that the plea made his exclusion from the United States “almost certain.” Appellee has not overcome the burden of defeating the normal presumption that recitals in the written record are correct. See Guerrero, 400 S.W.3d at 583.

3. The habeas court's prejudice finding is not entitled to deference because it is not supported by the record.

Although we afford almost complete deference to the habeas court's determination of historical facts supported by the record, this deference is not absolute. Ramirez, 652 S.W.3d at 846. The critical caveat to the norm of deference is that the habeas court's findings must be supported by the record. Id. When this Court finds that the habeas court's findings are not supported by the record, the findings are entitled to no deference. Id.

Here, the habeas record includes no evidence to support the habeas court's finding of prejudice. In other words, the habeas record contains no evidence to support the habeas court's finding that if “defense counsel would have advised applicant of the correct consequences of his guilty plea, applicant would not have plead [sic] and instead would have proceeded to trial on the merits.” Thus, that finding is entitled to no deference. Id. Further, the record contains unchallenged, conclusive evidence contradicting the habeas court's finding.

Appellee failed to carry his burden by a preponderance of the evidence to satisfy the second prong of the Strickland standard. Strickland, 466 U.S. at 697; Kniatt, 206 S.W.3d at 664. The habeas court abused its discretion in holding otherwise.

We sustain the State's second issue and do not reach the State's first issue regarding the application of Padilla to an undocumented alien who is already subject to deportation.

IV. CONCLUSION

We reverse the habeas court's order granting habeas corpus relief and render judgment denying habeas corpus relief. We order appellee's guilty plea reinstated in cause number F17-18680 in the Criminal District Court No. 4, Dallas County, Texas.

DISSENTING OPINION

The majority holds that the habeas court abused its discretion in granting appellee's habeas petition even though the record supports the habeas court's finding that appellee was prejudiced by his trial attorney's deficient performance.¹ Thus, the majority's opinion abandons the rule of law that requires us to read the record in the light most favorable to the habeas court's ruling and to defer to the habeas court's factual findings. See Diamond v. State, 613 S.W.3d 536, 544 (Tex. Crim. App. 2020) (holding the record must be read in the light most favorable to the habeas court's ruling and the reviewing court must grant deference to findings of fact that support the court's ultimate ruling). I disagree with the majority's understanding and application of the appropriate standard of review in this State's appeal from the granting of an application for a writ of habeas corpus. For this reason, I respectfully dissent from the majority's opinion. I would affirm the habeas court's order granting habeas corpus relief.

 The standard of review is abuse of discretion.

An appellate court reviews a habeas court's ruling for abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). This level of deference must be given to a habeas court's factual findings “even when no witnesses testify[,] and all of the evidence is submitted through affidavits, depositions, or interrogatories.” Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006); see also Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011) (observing that, in context of Article 11.072 applications, the court of appeals “are truly appellate courts,” and, thus, there is “less leeway” to disregard a habeas court's factual findings). “We similarly defer to any implied findings and conclusions supported by the record.” Ex parte Harrington, 310 S.W.3d 452, 456 (Tex. Crim. App. 2010); see also Ex parte Besada-Peru, No. 14-17-00193-CR, 2018 WL 542238, at *3 (Tex. App.—Houston [14th Dist.] Jan. 25, 2018, pet. ref'd) (mem. op., not designated for publication) (“We infer all implied findings of fact that are necessary to support the habeas court's ruling.”). Moreover, the same level of deference must be applied when a habeas court bases its findings of fact on one—of a number of inferences—that may be drawn from the record. See State v. Quiroz Macedo, No. 08-20-00168-CR, 2024 WL 5248438, at *20 (Tex. App.—El Paso Dec. 30, 2024, pet. ref'd) (en banc) (mem. op., not designated for publication) (holding that the habeas court's finding was supported by the record when it was one of two inferences that could be drawn from a witness's affidavit); see also State v. Hradek, 707 S.W.3d 384, 395 (Tex. Crim. App. 2024) (holding that when two plausible interpretations of the evidence are presented, a trial court is better positioned to make the call as to which interpretation is most plausible, and its ruling will not be disturbed if it is within the zone of reasonable disagreement).

 The habeas court's finding of prejudice was supported by the record.

In its Finding of Facts and Conclusions of Law, the habeas court recites “[I]f defense counsel would have advised applicant of the correct consequences of his guilty plea, applicant would not have pled and would have instead proceeded to a trial on the merits.” Yet, according to the majority, the habeas court abused its discretion in making this finding because “appellee included no facts in his affidavit to explain how trial counsel's allegedly deficient advice factored into his decision to plead guilty.” I disagree. In his affidavit, appellee averred:

On or about May of 2017, I was arrested and taken to Dallas County Jail. At that time, I retained [an] attorney, and I advised him that I was not a legal resident, and I explained to him that I did not want to be deported or this to affect me.

Further, appellee averred:

At the time of the plea, he advised me to plead guilty because my charge was going to be reduced to a misdemeanor[,] and it was not going to affect me in the future. He never advised me that I would have consequences in the future regarding my illegal status or that it can led [sic] to deportation.

The habeas’ court's reading of appellee's affidavit was well within the zone of reasonable disagreement. Appellee specifically stated he “did not want to be deported or for this to affect me.” He then stated his trial attorney advised him to plead guilty because the plea would not “affect [him] in the future.” It is clear that appellee intended to communicate that had his trial attorney correctly informed him of the deportation consequences of his plea, he would not have pleaded guilty. Yet, the majority affords no deference to these necessarily implied findings.

Moreover, in his habeas application, appellee alleged he “never would have pleaded guilty if he had known it would render him removable.” The majority correctly points out that allegations in a sworn pleading do not constitute evidence to support a writ application. Garcia, 353 S.W.3d at 789. But it is beyond dispute that relief may be granted on the basis of testimony that supports the pleadings if that testimony is believed by the habeas court. Id. As explained above, appellee's affidavit supports the allegation in his pleading that he would not have pleaded guilty had he known the plea would lead to deportation. And the habeas court believed appellee's testimony. Thus, the habeas court was within its discretion to grant appellee habeas relief based on his pleading. Id.

The majority also points to appellee's plea paperwork as evidence that appellee was not prejudiced by his trial counsel's failure to correctly advise him of the consequences of his plea. Specifically, the majority points out that prior to pleading guilty, appellee was admonished that if he were not a citizen of the United States, a plea of guilty was almost certain to or would probably result in deportation from the United States. Thus, the majority concludes appellee could not have been prejudiced by his counsel's incorrect advice because he had a full understanding of what he was doing and voluntarily chose to plead guilty rather than face trial before a jury. However, the record reflects appellee received conflicting information regarding the consequences of his plea.

In his pleading, appellee stated he would not have pleaded guilty if he had known it would render him removable. And his in affidavit, appellee averred that his trial attorney “never advised [him] that [he] would have consequences in the future regarding [his] illegal status or that is [could lead] to deportation.” As for appellee's trial counsel, he averred he informed appellee if he pleaded guilty and was not a USA citizen, “he may have adverse immigration consequences that may prevent him from becoming a permanent resident or citizen and [he] may be subject to deportation.” Thus, in sum, the record reflects appellee was told not only that his guilty plea would “probably” or “was almost certain” to lead to deportation, but also that his plea “may” lead to deportation, and would not “affect [him] in the future.”

Here, there is contradictory evidence regarding the information appellee received about the consequences of his plea. However, the habeas court found appellee's testimony to be credible. Given the conflicting evidence, the habeas court was free to credit appellee's testimony and disregard any inconsistent evidence. Ex parte Aguilera, 540 S.W.3d 239, 245–46 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (holding that, when appellant and trial counsel offer conflicting evidence of whether counsel warned appellant of the immigration consequences of his plea, the appellate court must defer to habeas court's finding); Ex parte Obi, 446 S.W.3d 590, 599 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (holding the habeas court was free to disregard one version of conflicting evidence).

In the instant case, the habeas court determined appellee was prejudiced by his trial counsel's failure to warn him of the immigration consequences of his plea. This factual determination was supported by the record and, therefore, should have been accepted by this Court. Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996) (stating that the judge determines credibility of witnesses in habeas hearings and that, if the habeas judge's findings of fact are supported by record, they should be accepted by appellate court); see also Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (“[R]eviewing courts should also grant deference to ‘implicit factual findings’ that support the trial court's ultimate ruling ․”), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).

In sum, I cannot agree with the majority's application of the standard of review for writ of habeas corpus, its reasoning in this case, or its holding reversing the habeas court's order granting relief.

I would affirm the order of the habeas court.

FOOTNOTES

1.   According to federal law, appellee is an alien. 8 U.S.C. § 1101(a)(3) (“The term ‘alien’ means any person not a citizen or national of the United States.”).

2.   See 8 U.S.C. § 1325(a).

3.   The Court of Criminal Appeals has referred to a similarly situated individual as an “undocumented alien.” State v. Guerrero, 400 S.W.3d 576, 580 (Tex. Crim. App. 2013). For clarity, we will refer to appellee and his status within the United States by the same term, “undocumented alien.”

4.   Under state law, being placed on deferred adjudication community service is not considered a conviction, and instead, as the name suggests, it defers adjudication of the defendant's guilt. Tex. Code Crim. Proc. Ann. art. 42.12, § 2(2); see also Guerrero, 400 S.W.3d at 587–88. However, under federal immigration law, even if a defendant is placed on deferred adjudication community supervision and is never formally convicted under state law, a defendant's plea of guilty or nolo contendere to a controlled substance offense is itself considered a “conviction,” subjecting the defendant to presumptively mandatory removal from the country. Guerrero, 400 S.W.3d at 588 (citing Moosa v. I.N.S., 171 F.3d 994, 1001, 1006 (5th Cir. 1999)); 8 U.S.C. § 1101(a)(48)(A); see also Padilla, 559 U.S. at 380 n.2 (Alito, J. concurring).

5.   A habeas court is not required to hold a hearing when considering an article 11.072 application. Article 11.072 provides that “the trial court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection.” Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b). The statute's permissive construction means that a hearing is not required. See Ex parte Davila, 530 S.W.2d 543, 545 (Tex. Crim. App. 1975); see also Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.) (“While section 6(b) clearly indicates that in making its determination the trial court may order affidavits, depositions, interrogatories, or a hearing, it does not require that the trial court do so.”).

6.   “[C]onstitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Padilla, 559 U.S. at 360.

7.   “Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla's claim.” Padilla, 559 U.S. at 366.

8.   See also id. at 368 (“Padilla's counsel provided him false assurance that his conviction would not result in his removal from the country.”).

9.   The Court of Criminal Appeals extended Padilla to aliens with temporary protected status in Ex parte Aguilar, 537 S.W.3d 122 (Tex. Crim. App. 2017).

1.   The majority opinion declines to address the first Strickland prong, deficient performance. Strickland v. Washington, 466 U.S. 668, 686 (1984). Pursuant to the first prong, I would hold that trial counsel's advice failed to adequately warn appellee of the gravity of the deportation consequences of his guilty plea and thus, his performance was deficient. Ex parte Torres, 483 S.W.3d 35, 45–46 (Tex. Crim. App. 2016) (holding that it was not enough for counsel to advise appellant that he might be deported; rather, counsel was required to inform appellant that, under these circumstances, his deportation was a virtual legal certainty). Here, there was evidence before the habeas court that trial counsel informed appellee that as a result of his plea—he may suffer adverse immigration consequences—that may prevent him from becoming a permanent resident or citizen, and that he may be subject to deportation. However, it was not enough for trial counsel to advise appellee that he might be deported; rather, trial counsel was required to inform appellee that, under these circumstances, his deportation was a virtual legal certainty. Id.

Opinion by Justice Lee

Garcia, J., dissenting.