EX PARTE: LORENZO GARCIA
Applicant Lorenzo Garcia appeals the trial court's denial of the relief requested in his application for a writ of habeas corpus filed pursuant to Article 11.072 of the Code of Criminal Procedure. See TEX.CODE CRIM.PROC.ANN. art. 11.072 (West 2015). In three points of error, Garcia asserts: (1) the trial court abused its discretion by not addressing his complaint he was denied effective assistance when his trial counsel misrepresented to him that he would not face deportation for pleading guilty to two counts of aggravated assault and obtaining an early discharge from probation; (2) the trial court abused its discretion in finding his assertion that trial counsel failed to investigate his case to be without merit; and (3) the trial court abused its discretion in finding Garcia had failed to support a writ allegation with affirmative evidence. For the following reasons, we affirm.
In 2010, Garcia waived his right to a jury trial and entered a negotiated plea of guilty to two counts of aggravated assault with a deadly weapon. The trial court found the evidence substantiating a finding of guilt, but it placed Garcia on deferred adjudication community supervision for four years. In 2014, Garcia filed an application for writ of habeas corpus based on allegations of ineffective assistance of counsel. More specifically, Garcia alleged his attorney rendered deficient performance because he failed to advise Garcia that his guilty plea would subject him to deportation or removal from the United States. Garcia argued his guilty plea was involuntary because he would not have entered a plea of guilty had he known it would subject him to removal or deportation. Further, Garcia alleged his attorney's performance was deficient because he failed to pursue a motion to suppress evidence on the grounds of a warrantless detention and improper identification procedure, failed to advise him that deferred adjudication guilty pleas were still considered convictions for immigration law purposes, and failed to investigate the facts of his case. The trial court did not conduct a hearing and denied relief based on its review of the habeas application and the documents in the court's file. The court entered written findings of fact and conclusions of law.
Standard of Review
In a post-conviction writ of habeas corpus proceeding, the applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.Crim.App. 2011). We review the trial court's decision to grant or deny habeas corpus for abuse of discretion, viewing the facts in the light most favorable to the trial court's ruling and deferring to the trial court in matters involving an evaluation of credibility or demeanor. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006); Ex parte Garcia, 353 S.W.3d 785, 787 (Tex.Crim.App. 2011). We afford the same level of deference to a trial court's ruling on mixed questions of law and fact, provided the resolution of those ultimate questions is based upon an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Mixed questions of a law and fact not based upon the trial court's evaluation of credibility and demeanor are reviewed de novo. Id.
Failure to Disclose Immigration Consequences of Plea Bargain
Garcia's first point of error centers on whether the trial court abused its discretion in purportedly not addressing his claim that his attorney misrepresented the immigration consequences of the discharge of his deferred adjudication. When an applicant challenges the voluntariness of a plea based on alleged ineffective assistance of counsel, the applicant must show by a preponderance of the evidence that: (1) counsel's advice fell below the range of competence demanded of attorneys in criminal cases; and (2) there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have instead insisted on going to trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex.Crim.App. 2010). In analyzing counsel's performance, we presume counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To show prejudice under the second prong, the applicant must demonstrate that it would have been rational under the circumstances to reject the plea bargain and insist on going to trial. Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An applicant's failure to make either of the required showings defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003).
Garcia alleges the trial court failed to address his misrepresentation claim. In his writ application, Garcia asserted his trial counsel failed to advise him that his guilty plea would subject him to adverse immigration consequences, and separately alleged counsel advised him “that by obtaining an early discharge from community supervision all evidence of his guilty plea would in effect be washed away, and he would have a clean record.” This, he asserts, was a claim of affirmative misrepresentation because he believed he would have a “clean record” for immigration purposes as well. He acknowledges the trial court made findings relating to his “failure to advise” claim, but asserts the court abused its discretion in failing to address his affirmative misrepresentation claim. Assuming, without deciding, Garcia actually alleged affirmative misrepresentation instead of failure to advise, he still has not shown abuse of discretion. Contrary to his assertion, in findings of fact number eighteen, the trial court specifically found Garcia had not shown that trial counsel had improperly advised him about the immigration consequences of his guilty plea. As noted above, Garcia was required to prove by a preponderance of the evidence: (1) that counsel's advice fell below the range of competence demanded of attorneys in criminal cases; and (2) there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have instead insisted on going to trial. Harrington, 310 S.W.3d at 458. The only evidence Garcia produced to support his assertions was his own affidavit. Garcia did not provide the court with an affidavit from trial counsel explaining his actions or the rationale behind his decisions. In fact, the evidence in the record controverts Garcia's assertions. During the plea hearing, the following exchange occurred:
THE COURT: In your opinion is your client's plea supported by the evidence?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: Any problems communicating with him?
DEFENSE COUNSEL: No.
THE COURT: Does he understand the consequences of this plea?
DEFENSE COUNSEL: Yes, he does.
THE COURT: Immigration consequences as well?
DEFENSE COUNSEL: Yes.
THE COURT: It's been explained to him?
DEFENSE COUNSEL: It's been explained to him.
THE COURT: I find him competent. Go ahead.
Allegations of ineffectiveness must be “firmly founded in the record,” and the record “must affirmatively demonstrate” the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005), quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The trial court did not believe Garcia's claim that his attorney had not properly explained the immigration consequences of his plea bargain with him. When a trial court makes an explicit credibility finding, the reviewing court does not have much leeway to disregard those findings within the Article 11.072 context. Ex parte Garcia, 353 S.W.3d at 788. We are required to defer to the express credibility finding of the trial court here, and overrule Garcia's first point of error.
Failure to Investigate
In his second point of error, Garcia asserts the trial court abused its discretion in finding no merit to his failure to investigate claim of ineffective assistance. Garcia was charged with aggravated assault with a deadly weapon. Specifically, Garcia began an altercation with the victims when he was bested in an off-roading competition in the Red Sands area in El Paso County. Garcia angrily threatened the victims, and when they fled the scene, a car chase ensued. The victims stated that during the chase through the hilly terrain, Garcia drove his right front tire over the hood of their vehicle. As they escaped onto Montana Avenue, Garcia forced the victims in and out of traffic and into an oncoming lane of traffic by attempting to ram them with his vehicle. At some point, the victims eluded Garcia and signaled another driver to call 911. In his writ application, Garcia claimed the incident report only noted a “tire impression” on the hood of the victim's vehicle. “Common sense,” Garcia asserted, “dictates that a [vehicle] positioned on top of the hood of any vehicle would have left much more than a tire impression on the hood; it would have crushed the hood.” He went on to contend that had trial counsel properly investigated, he may have been able to show the victims' story was fabricated. The trial court found Garcia's assertion to be “nothing more than his speculation and lay opinion ․” and thus did not constitute affirmative evidence. Further, the court found his assertion regarding the hood damage irrelevant because it “does not negate the fact that he used his vehicle to force the complaining witnesses off the roadway and into oncoming traffic.”
Where the record provides no discernible explanation as to the motivation behind counsel's actions, a reviewing court should be especially hesitant to declare counsel ineffective. Thompson, 9 S.W.3d at 814; see also Ex parte Jimenez, No. 08-13-00011-CR, 2014 WL 5089178, at *4 (Tex.App.--El Paso Oct. 8, 2014, no pet.)(not designated for publication)(“Counsel's action or inaction will be found to be reasonable if the record is silent as to the facts, circumstances, or rationale behind a particular course of action.”). The record shows when counsel was asked if he had investigated Garcia's case that he responded in the affirmative. Further, Garcia did not provide an affidavit from his attorney controverting this assertion. As the sole judge of credibility, in view of the evidence presented the trial court would not abuse its discretion in finding Garcia's claim of failure to investigate meritless. Ex parte Wheeler, 203 S.W.3d at 324. Accordingly, Garcia's second point of error is overruled.
Failure to File Motion to Suppress
In his final point of error, Garcia contends the trial court abused its discretion in finding no merit to his complaint that counsel failed to file a motion to suppress under a warrantless detention theory. Specifically, Garcia complains the trial court partially based its finding on Garcia's failure to attach the offense report and other referenced documents to his writ application. Garcia acknowledges his failure to attach the referenced documents, but maintains the trial court abused its discretion in not reviewing the missing documents because the same documents were later provided by the State as attached exhibits in its answer. Had this evidence been considered, Garcia alleges, the trial court would have concluded he was subject to an illegal detention and his attorney was deficient for failing to file a motion to suppress.
As noted above, counsel is afforded a presumption that his conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To rebut the presumption of reasonableness when counsel decides not to file a motion to suppress, an applicant must show by a preponderance of the evidence that: (1) the motion to suppress would have been granted; and (2) the remaining evidence would have been insufficient to support his conviction. Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998); Carmen v. State, 358 S.W.3d 285, 295 (Tex.App.--Houston [1st Dist.] 2011, pet. ref'd). Further, as the movant, applicant is required to produce evidence defeating the presumption of proper police conduct. Jackson, 973 S.W.2d at 957. “Simply contending that there ‘may be questions about the validity of the search’ is not enough to support an ineffective-assistance claim based on counsel's failure to move to suppress evidence.” Carmen, 358 S.W.3d at 295, quoting Jackson, 973 S.W.2d at 957.
Garcia cites no case law holding a trial court abuses its discretion in not acknowledging missing exhibits from a writ application when those exhibits are subsequently made available by the State in its answer. Even assuming the trial court would have abused its discretion in doing so, Garcia has not overcome the presumption of effective assistance. Garcia complained the incident report reflects the person who called 911 about the disturbance did not have a license plate number or a “precise description” of the vehicle involved in the aggravated assault. Therefore, he asserts, when he was subsequently stopped near the Red Sands area by police, he was illegally detained. But as the trial court found, and the incident report reflects, the officers dispatched in response to the 911 call came upon a vehicle already being detained by El Paso Police matching the description given to them by dispatch. Simply contending there may be questions about the validity of police conduct is not sufficient to support an ineffective assistance claim; an applicant must develop facts and details sufficient to defeat the presumption of proper police conduct, and prove the motion to suppress would have been granted. Jackson, 973 S.W.2d at 954; Carmen, 358 S.W.3d at 295. Accordingly, the trial court did not abuse its discretion in finding Garcia's claim lacked merit. Garcia's third point of error is overruled.
Having found no merit to Applicant's points of error, the judgment of the trial court is affirmed.
YVONNE T. RODRIGUEZ, Justice
Hughes, J. (Not Participating)