Opinion issued August 6, 2013

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 12
- 00922
- CR

——————————— EX PARTE GREGORIO VA SQUEZ MANDUJANO , Applicant
- Appellant

Original Proceeding on Petition for Writ of Habeas Corpus

MEMORANDUM OPINION Gregorio Vasquez Mandujano appeals from the denial of his application for a writ of habeas corpus, contending that his plea counsel’s failure to provide accurate immigration advice as required under Padilla v. Kentucky , 559 U.S. 356,
130 S. C t. 1473 (2010), amounted to constitutionally ineffective assistance of counsel in violation of the Sixth Amendment and, as a result, rendered his guilty2 plea involuntary. We hold that the trial court acted within its discretion in denying the application and affirm. Background Vasquez Mandujano, a citizen of Mexico, had held lawful permanent resident status in the United States since 2006. In August 2011, Officer Mesa of the Houston Police Department stopped Vasquez Mandujano for failure to us e his right turn signal. The officer found cocaine in the center console of the car. Vasquez Mandujano was the driver and the sole occupant. He was charged with the state jail felony of possession of a controlled substance, namely, cocaine, less
than on e gram by aggregate weight, includin g any adulterants and dilutants. See
T EX
. H EALTH & S AFETY C ODE A NN . § 481.112 (West 2009); T EX
. P ENAL C ODE A NN . § 12.35(a) (West 2011). Through counsel, Vasquez Mandujano reached a plea agreement with the State in which he pleaded guilty in exchange for two years’ community service and deferred adjudication. On January 6, 2012, the trial court held a plea hearing, during which a Spanish

- English interpreter assisted in translating the proceedings for Vasquez Mandujano an d the Court. The trial court admonished Vasquez Mandujano as follows: Q. Mr. Mandujano, it’s come to my attention you plan on

– or your intent is to plead guilty to possession of a controlled substance and have the Court defer a finding of guilt and plac e you on two

- year3 probation. I want to make sure you understand, even if you are a lawful permanent resident here, if you plead guilty to certain types of offenses, the federal government can automatically deport you, even if it’s considered a deferred ad judication, because under the federal government immigration law, deferred is considered a conviction. Possession of a controlled substance under the federal immigration law is considered an aggravated felony offense and you become automatically deportabl e. I want to make sure it’s clear now. Have you had an opportunity to discuss with your attorney what will happen to your immigration status if you plead guilty to this offense? A. If I file my papers, it can be taken away from me. Q. No, that wasn’t my q uestion. My question was have you had an opportunity to talk to your attorney about what would happen to your immigration status if you plead guilty to this offense? That’s either “yes” or “no.” A. Yes. Q. What is your understanding is going to happen to you if you plead guilty to this possession of a controlled substance as it relates to your immigration status? A. If I fail or something, I could be deported. Q. If you fail. I don’t understand what you mean. A. For example, if I’m going to get this prob ation, can I be deported for this? Q. That’s what I’m trying to make sure you understand. You are automatically deportable if you accept this probation and plead guilty. Once I place you on probation, the federal government can start deportation hearings against you. Do you understand all that? A. Yes, I do.4 Q. Knowing that, that you are automatically deportable once you get placed on this probation, . . . the federal government can start deportation hearings, do you still want to go forward with this plea of guilty or do you want to try to see if you can try the case and have a jury find you not guilty in hopes of avoiding this issue of deportation? A. I’d rather go to trial. Q. All right. The court set the case on the trial docket. The parties returne d to court on February 3, not for trial, but to enter the plea agreement. The record does not contain a transcript of this plea hearing. The trial court found that Vasquez Mandujano appeared with counsel, and the State and a

cert ified Spanish

- English cou rt interpreter also were present. The visiting judge officiated the admonishments, and the parties signed the plea papers. Subsequently, Immigrations and Customs Enforcement [ICE] apprehended Vasquez Mandujano, placed him on an immigration hold, and inst ituted deportation proceedings. ICE charged that Vasquez Mandujano was subject to removal from the United States under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, which provides: Any alien (including an alien crewman) in and admitted t o the United States shall, upon the order of the Attorney General, be removed if the alien is . . . convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)),5 other than a single offense involving possession for one ’ s own use of 30 grams or less of marijuana, is deportable. 8 U.S.C. § 1227(a)(2)(B)(i). Habeas C orpus I. Applicable Law and S tandard of Review Vasquez Mandujano challenges the trial court ’s denial of his application for habeas corpus relief , contending that h is plea counsel rendered ineffective assistance under Strickland v. Washington by failing to accurately inform him that
h is guilty plea would make h im automatically subject to removal from the United
States

. In Padilla , the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. 559 U.S. at ___, 130 S. Ct. at 1473. Vasquez Mandujano entered his plea after the United States Supreme Court decided Padilla , so this is not a case in which retroactivity bars Padilla ’s application. See Chaide z v. United States , ___ U.S. ___, ___, 133 S. Ct. 1103, 1113 (2013); Ibarra v. State , No . 01

- 12

- 00292

- CR , ___ S.W.3d

___ , 2013 WL 1163967, *2 ( Tex. App.

— Hous ton [ 1 st Dist. ] Mar

. 21, 2013 , no pet.). An applicant seeking habeas corpus relief based on an involuntary guilty plea must prove h is claim by a preponderance of the evidence. Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App.2006) (citing Ex parte Morrow , 952 S.W.2d 530, 535 (Tex. Crim. App. 1997)). The applicant bears the burden to establish t hat6 a reasonable probability exists that, but for counsel ’ s advice, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Ali , 368 S.W.3d 827, 835 (Tex. App.

— Austin 2012, pet. ref ’d). Further, the applicant must show that a decision to reject the plea bargain would have been rational under the circumstances. Padilla , 559 U.S. at ___, 130 S. Ct. at 1485. When reviewing a trial court ’ s ruling on a habeas corpus application, we view the evidence presented in the light most fav orable to th at ruling, and we must uphold that ruling absent an abuse of discretion. Ali , 368 S.W.3d at 831 (citing Ex parte Peterson , 117 S.W.3d 804, 819 (Tex

. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis , 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)).
We give almost t otal deference to a trial court’ s fact findings in habeas proceedings, particularly when they are based upon an evaluation of credibility and demeanor. Ex parte Amezquita , 223 S.W.3d 363, 367 (Tex. Crim. App.2006) (quoting Ex parte White , 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)); see also Ex parte Wheeler , 203 S.W.3d 317, 324 n. 23 (Tex. Crim. App. 2006) (noting that we
should also defer to trial court ’s “ implicit factual findings ” that support trial court’ s ultima te ruling); Peterson , 117 S.W.3d at 819 (noting same). We similarly defer to the trial court ’ s application of the law to the facts if that resolution turns upon credibility and demeanor determinations. Peterson , 117 S.W.3d at 819. If the7 resolution of th e ultimate question turns on an application of law, we review the determination de novo. Id.
II. Analysis Vasquez Mandujano specifically claims that his plea counsel misinformed him that a guilty plea could make him subject to deportation, not that it would automatically subject him to deportation. Padilla declares that, if a deportation consequence is truly clear, such as when the client is subject to automatic deportation, the duty to give correct advice is equally clear, and constitutionally competent cou nsel must advise the client accordingly. 559 U.S. at ___, 130 S. Ct. at 1478, 1483. At the habeas hearing, Vasquez Mandujano and his plea counsel disputed the accuracy of plea counsel’s advice about the effect of a guilty plea on Vasquez Mandujano’s imm igration status. Vasquez Mandujano equivocated in his own testimony on the issue. The record shows that the trial court expressly admonished Vasquez Mandujano that he would become automatically deportable if he pleaded guilty and accepted the probation, and the trial court found that, following the admonishment, Vasquez Mandujano understood that he would be automatically deportable if he entered a guilty plea. We defer to the trial court’s finding on this issue, as its resolution turns on an evaluation o f the witnesses’ credibility and demeanor. See Ex parte Amezquita , 223 S.W.3d at 367.8 With respect to the second prong of Strickland , the record supports the trial court’s finding that Vasquez Mandujano opted for the plea agreement because he wanted to ke ep his job, if possible, and did not want to risk going to jail. As a result, the trial court acted within its discretion in concluding that Vasquez Mandujano failed to prove that, but for any faulty advice, he would have rejected the plea agreement and h ave gone to trial. Conclusion We affirm the trial court’s order denying habeas relief.

Jane Bland Justice Panel consists of Justices Keyes, Higley, and Bland. Do not publish. TEX.R.APP. P. 47.2(b)