THE STATE OF TEXAS v. REYNALDO JOSUE CABEZA TORRES (2026)

MAJORITY OPINION

Appellee Reynaldo Cabeza-Torres was in the United States illegally when he was charged with a felony for threatening to kill a woman who planned to report a crime. He then faced a choice: either go to trial and risk up to ten years in prison and a hefty fine or plead guilty, have the charge dismissed, and avoid prison. He chose the second option, but now argues that he would have chosen the first option had his plea counsel told him that pleading guilty would eventually prevent him from becoming a legal permanent resident based on his marriage a year later. The trial court agreed and granted his application for writ of habeas corpus.

The United States Supreme Court has intentionally set a high bar for overturning guilty pleas, refusing to do so based on post hoc evidence that shows little more than that the defendant wants a second try. Instead, a habeas applicant must produce contemporaneous evidence from the time of the plea deal showing that his primary concern was his immigration status—meaning he would have rejected even a good plea deal in favor of trial if it jeopardized his status. Appellee did not make that showing; we reverse and render.

BACKGROUND

Appellee is a citizen of Venezuela who has no papers to be in the United States legally. He does not dispute that point, although he swore in his habeas proceeding that he “fully intend[ed]” to apply for legal status.

He was indicted for and pleaded guilty to the third-degree felony offense of retaliation after allegedly threatening to kill a woman planning to report a crime. A third-degree felony offense is punishable by a minimum of two and up to 10 years' confinement and a $10,000 fine, see Tex. Penal Code §§ 12.34, 36.06, but Appellee's guilty plea allowed him to avoid prison time entirely in favor of three years of deferred adjudication community supervision. Appellee notarized and initialed a document stating he “fully underst[ood]” he was pleading guilty, which could result in him being deported, excluded from the United States, or denied naturalization. He nonetheless filed an application for writ of habeas corpus almost two years later, asserting his guilty plea was involuntary because his plea attorney did not properly advise him of the immigration consequences—namely, that his guilty plea would prevent him from becoming a legal permanent resident based on his marriage that occurred a year after his plea.

Appellee attached three affidavits to his habeas application—his own, one from his secretary Daisy Lozano, and one from his acquaintance Raymond Sanchez. His plea attorney also filed an affidavit as ordered by the court. The trial court held an evidentiary hearing, at which his plea attorney, Lozano, and Sanchez testified. Appellee did not appear. After the hearing, the trial court adopted Appellee's proposed findings of fact and conclusions of law and granted Appellee's application. The State timely filed its notice of appeal.

ANALYSIS

The State contends the trial court erroneously granted Appellee habeas relief because he failed to plead or prove his plea counsel's deficient performance prejudiced him—in other words, that he would have insisted on going to trial instead of pleading guilty had he known the immigration consequences of a guilty plea. We agree.

I. Standard of Review and Applicable Law

The trial court is the sole factfinder in a post-conviction writ application filed pursuant to Code of Criminal Procedure article 11.072,¹ and we afford almost total deference to its fact findings when they are supported by the record—especially when they are based on credibility and demeanor. Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). This is so regardless of whether the trial court's findings are implied or explicit, or based on affidavits or live testimony, but only provided they are supported by the record. See Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We apply the same deference to the court's application of law to fact questions if the resolution of those determinations rests upon an evaluation of credibility and demeanor; but if the outcome of those ultimate questions turns upon an application of legal standards, we review the court's determination de novo. Ex parte Allen, 619 S.W.3d 813, 816 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd).

An applicant for a post-conviction writ of habeas corpus bears the burden of proving his claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d at 43. When his writ is based on a claim of ineffective assistance of counsel, he must satisfy two prongs: (1) his counsel's performance was deficient, and (2) he was prejudiced as a result of his counsel's unprofessional errors. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 693 (1984)).

The first prong requires a showing of deficiency. The Supreme Court has held that an attorney's performance is deficient if he fails to provide a noncitizen client with accurate legal advice about the “truly clear” consequences of pleading guilty to an offense that, as a matter of law, renders him subject to automatic deportation. Ex parte Torres, 483 S.W.3d at 46; see Padilla v. Kentucky, 559 U.S. 356, 360, 369 (2010).

The second prong of Strickland requires that an applicant show prejudice: that “ ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Ex parte Aguilar, 537 S.W.3d 122, 128 (Tex. Crim. App. 2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). As part of this prejudice standard, an applicant who demonstrates deficient performance is required to “ ‘convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ ” Ex parte Torres, 483 S.W.3d at 48 (quoting Padilla, 559 U.S. at 372). Thus, we ask whether the totality of the circumstances indicates that the applicant placed a particular emphasis on the immigration consequences of a plea. See id. at 48-49. Factors to consider in conducting this analysis include “the evidence supporting an applicant's assertions, the likelihood of his success at trial, the risks the applicant would have faced at trial, the benefits received from the plea bargain, and the trial court's admonishments.” Id.

We cannot assume that a defendant would have rejected the plea deal had he known what his lawyer didn't tell him. As the Supreme Court cautioned, “[s]urmounting Strickland's high bar is never an easy task,” and we are especially interested in protecting the finality of convictions that are based on guilty pleas. Lee v. United States, 582 U.S. 357, 368-69 (2017). A plea should not be reversed “solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies.” Id. We should instead “look to contemporaneous evidence.” Id. at 369.

II. Application

The trial court found, and the State correctly conceded, that Appellee's plea counsel was deficient by telling him that his guilty plea and deferred adjudication would not affect his immigration status. We therefore direct our attention solely to the second Strickland prong, whether the trial court erred in finding that Appellee established prejudice by a preponderance of the evidence.

We defer to the trial court's findings if they are supported by the record. Ex parte Navarijo, 433 S.W.3d 558, 567 (Tex. Crim. App. 2014). Here, the trial court made only one finding of harm, focused on Appellee's marriage:

Applicant was harmed by Philip ‘Phil’ Greene's ineffective representation. The guilty plea basically prevented applicant from becoming a permanent resident through a prospective marriage. Philip ‘Phil’ Greene was aware of applicant's impending marriage.

The trial court did not make any finding that Appellee would not have entered a guilty plea and would have proceeded to trial had his counsel's performance not been deficient.

A. No contemporaneous evidence of prejudice

We first consider whether contemporaneous evidence—of which there is little—shows that Appellee was most concerned about his immigration status at the time he was deciding whether to plead guilty, meaning it would have been rational to reject the plea deal. Ex parte Aguilera, 540 S.W.3d 239, 249 (Tex. App.—Houston [1st Dist.] 2018, no pet.). It does not.

Appellee's habeas affidavit gave little information about what happened at the time of the plea deal. It states that his lawyer told him, “when your case is dismissed no impact on your immigration status will occur.” But, of course, that is not evidence that Appellee was most concerned about his immigration status, as is required. Aguilar, 537 S.W.3d at 128. Appellee still may have been most concerned about avoiding jail or keeping his record clean. Indeed, Appellee's affidavit gave two reasons that he accepted the plea deal: first, his lawyer told him his case would be dismissed and he “would have no record,” and second, he “also pleaded guilty because [his] lawyer told [him] no deportation or denial of immigration rights would result from this plea of guilty.” Thus, the only evidence in the record shows that immigration was an additional concern but not the determinative one in accepting the State's plea deal.

Appellee's affidavit is insufficient. Magic words are not required, but contemporaneous evidence that he would not have pleaded guilty is. See Padilla, 559 U.S. at 368 (quoting INS v. St. Cyr, 533 U.S. 289, 322 (2001)). Noticeably absent from his bare affidavit is even a claim that he was primarily worried about immigration consequences at the time of his plea. See Lee, 582 U.S. at 369. Indeed, the Court of Criminal Appeals has denied habeas relief in a similar circumstance, where an applicant's affidavits made no mention of “any special concern for potential immigration consequences,” and instead focused on “a desire to avoid conviction and jail time.” See also Torres, 483 S.W.3d at 49.

Appellee likewise did not introduce any evidence of connections that he had to this country at the time of the plea deal, such as significant family ties or long-term residency in the United States, which would indicate that it would have been rational for him to risk going to trial rather than facing deportation. Ex parte Duque, 540 S.W.3d 136, 150 (Tex. App.—Houston [1st Dist.] 2017, no pet.); contra Torres, 483 S.W.3d at 50 (“we observe, as the court of appeals did, that appellant had strong ties to this country that could, at least in theory, cause a rational individual to roll the dice and pursue a trial”).

Nor does evidence of Appellee's marriage—well after he pleaded guilty—make the required showing. The trial court found that Appellee was harmed by his counsel's deficient counsel because his plea deal “basically prevented [him] from becoming a permanent resident through a prospective marriage.” But that is not the proper question; we instead ask whether, at the time of the plea, Appellee would have insisted on going to trial had he known the plea would later prevent him from becoming a permanent resident through marriage. Ex parte Aguilar, 537 S.W.3d at 128.

Appellee was not married at the time of his plea: the evidence is undisputed that he did not get married until 2023, a year later. There is no evidence of whether he had even met his now wife before he pleaded guilty, what their relationship was, or even when he planned to apply for permanent residence. Appellee's affidavit also doesn't state that he had applied for permanent residence by the time he signed it during the habeas proceeding in 2023—it states only that he “fully intend[ed]” to do so. There is no evidence showing that Appellee's 2023 marriage would have caused him not to plead guilty in 2022.

Contrast the facts of Appellee's case with those in Lee v. United States, 582 U.S. at 362. There, as here, the defendant's lawyer told him he would not be deported if he pleaded guilty. But the evidence showed that the defendant repeatedly asked his attorney whether there was any risk of deportation from the proceedings, including asking him on the record immediately before entering his guilty plea, and both he and his attorney testified that he would have gone to trial had he known about the deportation consequences. Id. at 369. At the same time, there was evidence that he had lived in the United States for nearly three decades at the time of his plea, started two businesses, and was the only family member in the United States who could care for his elderly parents, who were both naturalized American citizens. Id. at 370. There is simply no similar evidence here that Appellee placed a particular emphasis on the immigration consequences of a plea.

The record also reflects that the trial court admonished Appellee about the immigration consequences of his guilty plea at the time he agreed to it. See id. at 368-69. Appellee notarized and initialed a document stating that he “fully underst[ood]” that he was pleading guilty, which “may result in [his] deportation, [his] exclusion from admission to this country, or [his] denial of naturalization under federal law.” The admonishments were also signed by his lawyer, the deputy district clerk acting as a notary, the trial court, and the State's attorney. See Ex Parte Torres, 483 S.W.3d at 48 (stating that admonishments are a factor to consider in determining prejudice); see also United States v. Kayode, 777 F.3d 719, 728-29 (5th Cir. 2014) (“while judicial admonishments are not a substitute for effective assistance of counsel, they are relevant under the second Strickland prong in determining whether a defendant was prejudiced by counsel's error”). Appellee does not provide any evidence to contradict those admonishments. See Ex parte Buenrostro, No. 05-25-00152-CR, 2025 WL 3078635, at *7 (Tex. App.—Dallas Oct. 31, 2025, pet. filed); State v. Quiroz Macedo, No. 08-20-00168-CR, 2024 WL 5248438, at *11 (Tex. App.—El Paso Dec. 30, 2024, pet. ref'd).

Similarly, testimony from both Appellee's plea counsel and his acquaintance Raymond Sanchez indicates that Appellee had his own immigration attorney at the time of the plea—such an attorney's sole role is to advise on the immigration effects of a guilty plea. This evidence suggests that Appellee knew the consequences of pleading guilty and undermines a showing that he would not have pleaded guilty and would have insisted on going to trial but for counsel's error.

B. Post hoc evidence

The analysis should end there—the United States Supreme Court has warned against upsetting a plea deal “solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies.” Lee, 582 U.S. at 369. Nonetheless, even considering Appellee's post hoc assertions, we conclude that there is no evidence to support the trial court's prejudice finding.

The record shows that Lozano and Sanchez visited with Appellee's plea counsel in 2023, a year after Appellee's 2022 plea, to express concerns that Appellee not get a criminal conviction both because of its impact on his immigration status and “for reasons not related to his immigration status.” Lozano's affidavit stated that she and Sanchez “emphasized” to Appellee's plea counsel that Appellee “did not want anything on his record.” Lozano said that Appellee called into the meeting to ask plea counsel whether the deferred adjudication for retaliation—to which he had already pleaded guilty—would have immigration consequences. But there is no evidence—even post hoc evidence—showing his immigration concerns prior to entering his plea.

The trial court's finding of prejudice is also not supported by Appellee's live testimony—because he failed to appear at the live hearing. “An applicant's live, sworn testimony is a sufficient basis for upholding a decision to grant relief in an Article 11.072 habeas proceeding because the trial judge may believe any or all of a witness's testimony.” State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). Lozano and Sanchez appeared but provided no testimony relevant to Appellee's conversations with counsel or any concerns he may have had at the time of his guilty plea.

Appellee's plea counsel also appeared at the live hearing, testifying that Appellee did not ask him for immigration advice and confirming that Appellee had his own immigration lawyer, with whom he had been in contact. He testified that he discussed the strength of the State's retaliation case with Appellee, that Appellee's primary concern was avoiding prison time and getting the lowest possible sentence, and that Appellee never told him that his primary concern was protecting his future ability to apply for citizenship.

Appellee argues that the trial court was free to disbelieve his plea counsel's testimony. True enough. But the trial court was not free to implicitly find the opposite on this record. We can imply missing findings in some cases, but even implied findings must be supported by the record; here, they are not. See Ex parte Torres, 483 S.W.3d at 42; Ex parte Fassi, 388 S.W.3d at 886.

C. Consequences of going to trial

We next consider what consequences Appellee might have faced if he had gone to trial on the underlying crime of retaliation—namely, the strength of the evidence of his guilt, whether he had any factual or legal defenses, and the penalties he could have faced. Ex parte Aguilera, 540 S.W.3d at 249. The more dire the consequences he faced after a trial, the less likely he would have been to reject the plea deal in favor of a trial.

This factor also weighs against a finding of prejudice. Appellee faced a substantial risk of being convicted of retaliation—his plea counsel testified that he talked to the complainant and her parents, all three were ready to testify, and all three confirmed that Appellee threatened to kill the complainant and even threatened her parents. He noted that the complainant was very involved in the trial court proceedings, appeared at court settings, and was also present and “gave her statement” when Appellee pleaded guilty. Appellee admitted to his plea counsel that the allegations in the indictment were true, and his plea counsel “saw no chance to win the case.” Appellee presented no evidence—either in his affidavit or at the hearing—controverting his plea counsel's testimony or showing any mitigating factors that would have lessened the risk of going to trial. Perhaps most importantly, a third-degree felony offense is punishable by two to 10 years' confinement and a $10,000 fine, see Tex. Penal Code §§ 12.34, 36.06, while Appellee's plea deal resulted in no jail time or fine.

Considering the totality of the circumstances, there is no evidence in the record supporting the trial court's finding that Appellee would have proceeded to trial and not pleaded guilty but for his plea counsel's deficient performance. Thus, the trial court should not have granted habeas relief.²

Accordingly, we sustain the State's issue.

CONCLUSION

We reverse the trial court's order and render judgment denying habeas corpus relief.

FOOTNOTES

1.   Article 11.072 applies when a person is convicted of either a felony or misdemeanor and ordered to community supervision. Tex. Code Crim. Proc. art. 11.072.

2.   The State contends that Appellee neither pleaded nor proved that he would have insisted on a trial instead of pleading guilty. We determine there is no evidence in the record from which the trial court could have concluded that Appellee proved by a preponderance of the evidence that he was prejudiced by his plea counsel's deficient performance; we therefore need not consider the sufficiency of Appellee's pleading.

Katy Boatman Justice