### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00735- CR

Ex parte Oscar P ena

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 15- 3002 05- B , H ONO RAB LE CLIF F ORD A. B ROW N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Osca r Pena appea ls from the habea s court’s ord er d eny ing his application for a writ of habea s corpus pursuant to Texas Code of Criminal Procedur e article 11.072. See Tex. Code Crim. Proc. art. 11.072. Pena was char g ed with bu rgl ar y o f a habitation, a second deg ree felony

. See Tex. Penal Code § 30.02. Pen a en t er ed a gu i l ty plea pursuant to a plea ag ree ment with the
State. The trial court defe rre d adjudication and place d Pena on community supervision for a period of eight y ea rs. Pena later filed an application for a writ of habeas corpus asser ting that his g uilty 1 plea was involuntary as the result of ineffe ctive assistance of counsel. T h e habea s court denied 2
Pena’s writ application. I n a single issue on appea l, Pena contends the habea s court abused its

The p l ea agr eeme nt also disposed of t hree felony char g es aga inst Pena for unauthorized 1 use of a motor vehicle. Pena’s orig inal application for a writ of habea s corpus was filed o n J u l y 2 5 , 2016 and 2 reque sted habea s relief for his three unauthorized use of a motor vehicle case s and his burg lary of a habitation case . Be cause the habea s court did not have jurisdiction to g rant relief in the unauthorized use o f a motor vehicle case s, Pena filed a subsequent application for a writ of habea s corpus on Aug ust 24, 2016, reque st i n g re l ief only in his burg lary of a habitation case . As such, onl y Pena’s burg lary of a ha bitation case is re levant to this appea l.discretion by finding he was not prejudice d by his counsel’s alleg edly defic i en t p er fo rm ance in

fa i l i n g t o explain the risk of deporta tion and the immigra tion conseque nces of his plea. W e wi l l aff irm the habe as cour

t’s order deny ing Pena ’s writ applica tion.

BACK GR OUND Acc ord i n g t o the offe nse repor t, on J anuar

y 7, 2015, Detec tive Bobby L eal was
contac ted by

patrol off

icer s with the Aust in Police Depa rtment who reported that they wer e at the

scene of a rec overe d stolen vehi cle. The patrol office rs found three suspects—a juvenile male, a juvenile fema le, and Pena—inside the stole n v ehicle. Upon arr ival at the scene , Detec tive L eal discovere d sever al i t em s inside the vehicle that had been reported st olen from the s ame residence
as t he vehicle. Additionally , the j uvenile female wa s wea ring a wa tch that was la

ter c onfirmed a s stolen from the same residenc e as the vehicle.

When the burg lary

victim arrived at the s cene , she i dentified the rec overe d vehicle and all of the rec overe d proper ty as stolen from her residenc e. The victim c ompleted and signe d a

sworn burg lary victim statement i n wh i ch s h e stated that she had not g iven any one permission to
enter her residenc e or take her proper ty

. Detec tive L eal later contac ted one of the victim’s neig hbors who provided him with a descr iption of two individuals that matched the juvenile fema le and Pena.

Ba sed on the events descr ibed above, Pena, who is not a United States citizen, was 3
char g ed with burg lary of a habitation. On J une 5 , 2 0 1 5 , P en a ap pear ed in the trial court with his attorney , Robb Shepherd, and e ntere d a plea of g uilty pursuant to a plea ag ree ment with the State. At the plea he aring the following colloquy took place:

Pena is a na tive of Hondura s who ca me to the United States as a child. 3 2Court: Have y ou discussed with y our attorney the fac t that since y ou are not a citizen

o f the United States, that a plea of g uilty in this case is likely to have a n ega t i v e impact on y our immigration status and can c ause y our depor tation? Pena: Yes, sir. Court: And despite that fac t, y ou still wish to enter into this plea? Pena: Yes, sir.

. . . . Court: Has any

body forc ed y ou, threa tened y ou, or coer ced y ou in a ny way to e nter these plea s? Pena: No, sir.

. . . . M r . Sh e p h e r d : O k a

y . T h e o th e r th in g I w a

n t to a s k y o u a b o u t n o w is y

o u r im mi g r a ti o n status. You are not leg al to be in this country , are y ou?
Pena: No.
Mr. Shepherd: And y ou and I have talked about the fac t that y our plea here today will result in y our deporta tion if the immigra tion service ever decide s to deport y ou, y ou understand tha t, don’t y ou? Pena: Yes, sir.

L ater , at Pena’s sentenc ing hear ing, the trial court repe ated these admonishments and the following colloquy took place:

Court: Now, I ’m sure that I went over this with y ou at the time of the plea, but I want to be clea r that y ou do understand that as a result of these pleas that y ou will be deporte d. Do y ou understand tha t? Pena: Yes, sir.

3The trial court then deferr ed adjudication and placed Pena on e ight y ear s’ community supervision with 300 hours of community service and orde red him to pay $1,890.78 in restitution.
On Marc h 2, 2016, the United States Depa rtment of Home la

n d Security filed remova l
proce eding s ag ainst Pena under the I mmigra tion and Nationality Act. See 8 U.S.C. § 1227 (I NA). Pena then f

iled an application for a wr it of habea s corpus. See Tex. Code Crim. Proc. a rt. 11.072.
I n the application Pena asser ted that he rec eived ineffe ctive assistance of counsel, making his g uilty plea to burg lary of a habitation involuntary

. Pena asser ted his counsel’s perf

ormanc e was defic ient,
in violation of the standard set forth in Padilla v. Kentucky , 559 U.S. 356 (2010), beca use it was not

o b j ec t i v el y re asonable for his trial counsel to fail to advise him of the risk of deporta tion and the

s p e c if ic im mi g r ation conseque nces that would result from his g uilty plea. Specifica lly , Pena asser te d that beca use t he relevant im migr ation law was clea r and succin ct , S h ep h er d had a duty to consult with an immigra tion attorney throug h the C ap i t al Area Private Def ender Service (CAPDS) and 4
seek out information reg arding the conseque nces a g ui l t y plea would have on his ability to avoid deporta tion. P en a as s erte d that beca use of his g uilty plea, he is ineligible to seek either specia l immigra nt juve nile (SI J ) status, see 8 C.F.R. § 204.11, or asy lum a nd withholding of remova l, see 8 U.S.C. § 1158(b)( 2), and is no longe r elig ible to become a natura liz ed citizen. Pena also contende d that Shepherd could have and should have attempted to neg ot i ate a plea that avoided these immigra tion consequenc es.

The Capital Are a Private Def ender Service (CAPDS) was cre ated as a collabora tion of the 4 Austin Criminal Def

ense L awy ers’ Association, the Austin Ba r Association, and Travis County criminal judge s. CAPDS beg an offe ring fre e immigra tion consultations for attorney s appointed to repr esent non-citizen clients in April 2015. CAPDS also provides investiga tive support to attorney s appointed to re prese nt indigent c lients. 4Pena argue d that he was prejudice d by Shepherd’ s alleg edly defic ient conduct and

would have proce eded to trial rathe r than acc ept the plea ag ree ment if he had been i n fo rm ed of the immigra tion c onsequenc es. Pena maintained that Shepherd’ s conduct aff ecte d the outcome of
t he plea proce ss beca

use he never advised Pena that defe rre d adjudication was a convic t i o n fo r immigra tion purposes, he did not rese arc h the conseque nces of the plea on asy lum or SI J status, he mischara cter ized Pena’s burg lary char g e as an ag g rava ted felony , and he alleg edly told Pena that if
Pena did n o t enter a g uilty plea, I mmigra tion and Customs Enforc ement (I CE) would arr est and deport him.
I n support of his application, Pena submitted an a ffidavit in which he aver red:

I would’ve taken this case to trial if the case didn’t g et worke d out so it wo u l d n ’t aff ect m y immigra tion case . When I did this plea last y ear in J une 2015, I didn’t know that I had the specia l immigra nt juvenile ty

pe of case available to me. I ’m [si c] want the immigra tion judge to g ive me asy lum too. M y cr i m i nal lawy er Robb Shepherd didn’t communicate with me in the case s in Travis County beca use he told me to sign t h e p l ea as he had it setup back in J une 2015 last y ear or else he would have immigra

tion pick me up next time we went to court.

. . . Robb Shepherd didn’t tell me that I could’ve stay ed here in the United Sta t es if these case s had differ ent please [si c] done with them. Robb Shepherd didn’t t el l m e any thing about crimes involving mora l turpitude or if the plea could be diff

ere nt.

Pena also stated in his aff idavit that he was unawa re of the conseque n ce s h i s gu i l ty plea would have on his immigra tion case until he spoke to his immigra tion lawy er, St ephanie Tay lor. Pena’s application was also sup p o rt ed b y T ay lor’s aff idavit in which she identified herse lf as the immigra tion attorney for CAPDS at the time of Pena’s t ri al court proce eding s. Fur ther, Tay lor’s aff idavit descr ibed that althoug h Shepherd had contac ted CAPDS in other case s, he did not contac t CAPDS reg arding Pena’s c ases.
5The habea s court denied Pena’s application for a writ of habea s corpus without

conducting a hea

ring

. The c ourt made the following finding s of fa ct and c onclusions of law: 5

6. [P ena] claims that his pleas wer e invol u n t ar y an d trial counsel was ineffe ctive beca use t rial counse l did not warn [Pena] t hat his pleas would make him ineligible for potential avenue s of relief from deporta tion (such as withholding from remova l, asy lum, a nd SI J status). [P ena] asks this court to vaca te his convictions pursuant to Padilla

. 7. Padilla did not plac e a duty on criminal defe nse attorney s to disc uss the eff ect a plea will have on potential avenue s of re lief fr om deportation.
8. Padilla held that criminal defe nse attorne y s warn the ir clients when de portation is a clea r conse quence of the plea

. 9. When deporta tion conseque nces are unclear , Pa d i l la held t hat criminal defe nse attorney s need do no more than advise their clients that the cr i m i n al char g es may car ry a risk of a dverse immigra tion consequenc es. 10. The rec ord shows that trial counsel complied with his duty under Padilla

. Trial counsel war

ned [P ena] that he was pleading to an ag g rava ted felony an d that deporta tion was a c onsequenc e of his plea

. 11. The trial court also told [P ena] that he would be deporte d as a result of his pleas.

Pena then perf

ecte d this appea l, in which he arg ues that the habea s court abused its discretion by deny ing his a

pplication for a

writ of habe as cor

pus.

T h e h a b e a s c o u r t is n o t r e q u ir e d to h o ld a h e a

r in g , b u t is p e r

mi tt e d to ma

k e it s d e te r

mi n a ti o n 5 by considering aff

idavits, depos i t i o n s , i n terrog atories, or by holding a hear ing. See Tex. Code Crim. Proc. art. 11.072, § 6(b). The court may also rely on the court’s persona l rec ollection. Id. ; see Ex p a r te Ka r e d

ia , N os. 03-11-00831- CR & -00832-CR, 2013 WL 599555, at *3 (Tex. App.—Austin Fe b. 15, 2013, pet. ref

’d) (mem. op., not de signa ted for publication) (suffic ient for habea s court to rely on aff idavits, recor d, and per sonal knowledg e of ple a attorne y ). 6STANDARD OF REVIEW A denial of

habea s corpus relief is revie wed under an abuse of discretion standa rd.
Ex p arte W

heele r , 203 S.W .3d 317, 324 (Tex. Crim. App. 2006); Hernande z-Prado v. State , No

. 0 3-15-00290- CR, 2016 WL 3144113, at *4 (Tex. App.—Austin May 26, 2016, no p et

. ) ( me m. o p . , n o t d e s ig

n a te d f o r p u b li c a ti o n )

. A h a

b e a s c o u r t a b u s e s it s d is c r e ti o n , a

n d th e a p p e ll a te c o u r t will reve rse the habea s court’s deter mination, if it is “ar

bitrary or unrea sonable.” State v. Mec hler , 153 S.W .3d 435, 439 (Tex. Crim. App. 2005). A habeas court does not abuse its discre tion when its deter mination is within “the zone of rea sonable disag ree ment.” Bigon v. State , 252 S.W .3d 360, 367 (Tex. Crim. App. 2008).

When revie wing a habea s court’s denial of an application for a writ of habea s corpus,

an appellate court must view the fac ts in the light most favor able to the habea s court’s deter mination and uphold that deter

mination absent an abuse of discretion. Ex parte W heele r , 203 S.W .3d at 324; Hernande z-Prado , 2016 WL 3144113, at *4. I n habea s proce eding s virtually all of the fac t finding s require a cred i b i l i ty deter mination, and “‘the fac t finder is the exclusive judge of the cre dibilit y of the witnesses.’” Hernande z-Prado , 2016 WL 31441 1 3 , at *4 (quoting Ex parte Mowbray , 943 S.W .2d 461, 465 (Tex. Crim. App. 1996)). I n a habea s proce eding broug ht under article 11.072, “the tria l court is the s ole finder of fact,” and an appellate court aff ords “almost total defe renc e to

a trial court’s fac tual fi n d i n gs when supported by the rec ord, espec ially when those finding s are based upon cre dibili t y and demeanor.” State v. Ambrose , 487 S.W .3d 587, 596 (Tex. Crim. App. 2016); Ex parte Ali , 368 S.W .3d 827, 830 (Tex. A pp.—Austin 2012, pet. ref ’d); see also Ex parte Mowbray , 943 S.W .2d at 465 (re cog nizi ng there is less p o t en tial for disreg arding trial court’s

7finding s in article 11.072 appea l than in article 11.07 appea l wher e Court of Criminal Appea ls is sole

fac t finder)

. “‘When the trial court’s finding s of fa ct in a habe as cor pus proce eding are supported by the rec ord, th ey s h o u l d b e accepted by the revie wing court.’” Ex parte Karedia , Nos. 03-11-
00831-CR & -00832-CR, 2013 WL 599555, at * 3 (T ex . Ap p .—Austin Fe b. 15, 2013, pet. ref ’d) (mem. op., not desig nate d fo r publication) (quoting Ex parte Amezquita , 223 S.W .3d 363, 367 (Tex. Crim. App. 2006)). “More over, a revie wing court will defe r to the fac tual finding s of the trial judge even wh en t h e ev idence is submitt ed by aff idavit.” Ex parte Thompson , 153 S.W .3d 416, 425 (Tex. Crim. App. 2005).

DISCUSSIO N
Ineff ect ive Assistance of Counsel The validity of a g uilty plea is deter mined by “whe ther the plea repr esents a voluntary

a n d in te ll ig e n t c h o ic e a

mo n g th e a lt e r

n a ti v e c o u r s e s o f a c ti o n o p e n to th e d e f e n d a n t. ” No r th Ca r o li n a

v. Alford , 400 U.S. 25, 3 1 (1 9 70); see Ex parte Karedia , 2013 WL 599555, at *5. “A g uilty plea is not knowing or volun t ar y i f made as a result of ineffe ctive assistance of counsel.” Ex parte Moussazadeh , 361 S.W .3d 684, 689 (Tex. Crim. App. 2012). “Wh er e, as h er e, a defe ndant is
repr esente d by counsel during the plea process and enter s his plea upon the advic e of counsel, t he voluntariness of the plea depends on whether counsel’s advice ‘wa s within the rang e of competenc e demande d of attorney s in criminal case s.’” Ex parte Karedia , 2013 WL 599555, at *5 (quoting
McM ann v. Richardson , 397 U.S. 759, 771 (1970)). The two-par

t Strickland test is applied when th e ch al leng e to the g uilty plea is based on ineffe ctive assistance of counsel. See, e.g. , Hill v. Lockhart , 4 74 U.S. 52, 58 (1985);

8Strickland v. W ashington , 466 U.S. 668, 687-94 (1984); Ex parte Karedia , 2013 WL 599555, at *6.
To preva il on a writ of habea s co rp u s , an applicant must establish that (1) counsel’s perf ormanc e

was defic ient and (2 ) counsel’s defic ient perf ormanc e cause d the applicant prejudice

. Ex parte Chandler , 182 S.W .3d 350, 353 (Tex. Crim. App. 2005) (citing Strickland , 466 U.S. at 6 9 4 );
Ex parte Karedia , 2013 WL 599555, at *6. An applicant must prove both prong s of the Strickland
test by a preponde ranc e of the evidenc e. Perez v. State , 310 S.W .3d 890, 893 (Tex. Cri m. App.
2 0 10); Ex parte Richardson , 70 S.W .3d 865, 870 (Tex. Crim. App. 2002); Ex par t e T o r r es , No. 03-14-00169- CR, 2015 WL 2066232, at *4 (Tex. App.—Austin Apr. 29, 2015, no pet.) (mem.
op., not desig nated for publication). Fa ilure by the applicant to establish e it h e r d e f ic ie nt perf ormanc e
or pre judice def

eats the c laim of ineff

ectivene ss of counsel. Perez , 310 S.W .3d at 893.
To establish that counsel’s perfo rm ance was defic ient, an applicant must show counsel’s advice “fe ll below an objective standard of rea sonablene ss.” See Strickland , 466 U.S. at 687-88; see also Ex parte Karedia , 2013 WL 599555, at *6 (re cog nizi ng that first half of Strickland
test applies in context of g uilty pleas as in other contexts but that prejudice require ment is analy zed differ ently

). “In Padilla , the Supreme Court e x panded the scope of the Six th Amendment to hold that it requires a

n attorney for a non-citizen criminal defe ndant to provide a dvice a bout the risk of deporta tion arising from a g uilty plea.” Ex parte Torres , 483 S.W .3d 35, 43 (Tex. Crim. App. 2016). The we ight of

preva iling prof

essional norms supports the view tha t counsel must advise his client
reg arding the risk of deportat i o n , b u t the extent of the advice require d depends on the terms of the rele vant statute. Padilla , 559 U.S

. at 3 6 7

. When, as Pena contends is the case here , “the
terms of the rele vant immigr at i o n s t atute are succinc t, clea r, and expli cit in defining the remova l

9conseq u ence” of a conviction, i.e., when the “depor tation conseque nce is truly clea r,” counsel’s advice must be “equa lly clea r.” Id. at 369; Ex parte Torres , 2015 WL 2066232, at *5; Ex parte Ali , 368 S.W .3d at 834. Conversely , “whe n the law is not succinc t and st raig htforwa rd .

. . a criminal defe nse attorney need do no more than advise a non-citizen client that pending criminal char g es may

car ry a risk of a dverse immigra tion consequenc es.” Padilla , 559 U.S. at 369.
Fa ilure t o meet the standa rd set for th in Padilla may rende r counsel’s perf ormanc e defic ient. See Ex part e T orres , 483 S.W .3d at 44-46. Howeve r, the applicant must also establish prejudice by “convinc ing the co u rt t h at a decision to reje ct the plea barg ain would have been rational under the circ umstances.” Padilla , 559 U.S. at 371. When, as here , the prejudice prong of the Strickland t es t i s d i spositive, we will addre ss only that prong on appea l. Ex parte Ali , 368 S.W .3d at 835. Be cause , as discussed below, Pena failed t o es t ab l ish that he was prejudice d by his counsel’s alleg edly defic ient perf ormanc e, we conclude that the habeas court did not abuse its discretion by

deny ing Pena ’s applica tion.

P rej udi ce “The focus of th e p rejudice inquiry is ‘on whether counsel’s constitutionally ineffe ctive perf

ormanc e affec t ed t h e o utcome of the plea proce ss.’” Ex parte Karedia , 2013 WL
5 9 9 5 5 5 , a t * 6 ( q u o ti n g H il l , 4 7 4 U

. S. a

t 5 9 )

. T o e s ta

b li s h p r e ju d ic e , a n a p p li c a n t “ mu s t c o n v in c e th e court that a

decision to reje ct the plea barg ain would have been rational under the circ umstances.”
See Padilla , 559 U.S. at 372; see also Ex parte Torres , 2015 WL 2066232, at *5 (re cog nizi ng that prejudice test is objective and turns on what rea sonable person in defe ndant’s shoes would do). The Texas Court of Criminal Appeals has e x plained the pr ejudice inquiry in plea ca ses as follows:

10I n the ineffe ctive assistance of counsel con text , the narr owed prejudice inquiry is desig ned to ensure that the defe ndant would actua lly have availed himself of the proce eding in question, so that he rea lly is in the same position as someone whose rig hts wer e denied by the trial court: counsel’s defic ient perf ormanc e must actua lly cause the forf eiture [of the proce eding in question]. I f the defe ndant cannot demonstrat e that but for counsel’s defic ient perf ormanc e, he would have [availed himself of that proce eding ], co unsel’s defic ient perf ormanc e has not deprive d him of any thing, and he is not entitled to relief.

Johnson v. State , 169 S.W .3d 223, 2 3 1-32 (Tex

. Crim. App. 2005). An applicant must show that there is a rea sonable p robability that, but for counsel’s defic ient perf ormanc e, he would not have pleade d g uilty

but would have insisted on g oing to tria l. See, e .g. , Strickland , 466 U.S. at 687-88, 694; Perez , 310 S.W .3d at 892-93; Ex parte Torres , 2015 WL 2066232, at *5

. The court is to consider “the circ umstances surrounding the plea an d t h e g ravity of the misrepre sentation” to deter mine whether there is a rea sonable probability an applicant would not have pleade d g uilty

. Ex parte Ali , 368 S.W .3d at 835. Fa ctors to consider include the evidenc e supporting an applicant’ s

asser tions, the likelihood of succe ss at trial, the risks the applicant would have fac ed at trial, and the benef its rec eived from the plea barg ain. Ex parte Riley , No. 03-16-00350- CR, 2016 WL 6068254,

a t * 6 ( T e x. A

p p . — Au s ti n O c t. 1 1 , 2 0 1 6 , p e t. r e f ’ d ) ( me m. o p . , n o t d e s ig

n a te d f o r p u b li c a ti o n )

. Wh e n defe ndant place d particula r empha sis on certa in conseque nces of a plea when deciding whether or
not to acc ept it, that may constitute a circ umstance that weig hs in favor of a finding of prejudice

. Id.
Howeve r, “e ven whe n a def endant wholly

relies upon e rrone ous advice of counse l, the mag nitude

o f the err or as it conce rns the conseque nces of the plea is a rele vant fac tor; not ever y rel i an ce o n

err oneous advice is sufficie nt to justify rende ring the plea vulnera ble to collater al attack.” Ex parte
M o o d y , 9 9 1 S. W. 2 d 8 5 6 , 8 5 8 ( T e x. Cr im

. A p p . 1 9 9 9 ) ; s e e E

x p a r te To r

r e s , 2 0 1 5 WL 2 0 6 6 2 3 2 , a

t * 5

. 11We must deter mine whether Pena demonstrated by a preponde ranc e of the evidenc e that there is a rea sonable probability that, but for his counsel’s err ors, if any , h e wo u l d not have pleade d g uilty but rathe r would have proce eded to trial. See E x parte T orres , 2015 WL 2066232, at *6; Ex parte Ali , 368 S.W .3d at 835. I n view of the totality of the c ircumstance s, and def err ing
to the habea s court’s fac tual finding s, we conclude that Pena has failed to demonstrate that, but for his c ounsel’s failure to pr ovide him with adequate advice reg arding the risk of deporta tion a nd the potential immigra

tion conseque nces, assuming counsel failed to do so, Pena would have reje cted the plea a g ree ment and proc eede d to trial.

Evid ence Supporting Pena’s Asse rtions

The only evidenc e Pena prese nted to support his asser tion that he would have insisted

on g oing t o t ri al are statements in his aff idavit to that eff

ect. Pena asser

ted, for example, that his counsel told him to plead g uilty or else I CE would arr est and deport him. Howeve r, the habea s court would not have abused its discretion in disbelieving these statements. See Ex parte Ali , 368 S.W .3d
at 840-41; see also Shanklin v. State , 190 S.W .3d 154, 167 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d, improvidently g rante d) (“The trial court is not required to believe actua l statements contained within an aff

idavit, even when they are uncontra dicted by other aff idavits.”); Dusenbe rry v. Stat e , 915 S.W .2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’ d ) (“ T h e court may consider the interest and bias of any witness and is not require d to acc ept as true the testimony of the

acc used or a

ny defe nse witness simply beca use i t was uncontradicted.” ). We defe r, as we should,
to the habea s court’s cre dibilit y deter mination in reje cting Pena’s asser tions. See Ex parte Riley , 2016 WL 6068254, at *4 (def err ing to trial court’s finding s and finding no support for asser tion on
12appea l that counsel told defe ndant he would fac e felony char g es if he did not acc ept plea) ; Ex parte

Ali , 368 S.W .3d at 840-41. More over, Pena expressly testified at his plea he aring that no one had forc ed, thre atene d, or coe rce d him to enter his plea.

The habea s court’s deter

mination that relief sh o u ld be denied is supported by the trial court’s ad m o nishments during Pena’s plea hear ing and ag ain at his sentenc ing hear ing when the cou rt expressly told Pena he would be deporte d as a result of his plea. See Ex parte Torres , 483 S.W .3d at 50. Ba sed on these fac ts, the reco rd supports a conclusion that Pena did not place
any specia l emphasis on avoiding immigra tion c onsequenc es or deporta tion a s a result of his plea.
See id. T o t h e co n t rar

y , the rec ord supports the conclusion that, had Pena been advised of the specific potential immigra tion conse q u en ces of his plea, as opposed to the advice he rec eived
reg arding the likeliho od of a neg ative impact on his immigra tion status and possible deporta tion, the specific advice would not have been the tipping p o i n t t h at would have cause d Pena to reje ct the plea a g ree ment and proc eed to tria l. See id. 6

Lik elihood of

Success at Trial The fac ts of thi s ca s e, as summarized above, provide overw helming evidenc e of
Pena’s g uilt. See Ex parte Ali , 368 S.W .3d at 840. The patrol office rs found Pena inside the stolen vehicle with additional stolen proper ty , and Detec tive L eal obtained a descr iption from the burg lary victim’ s n eighbor matching that of Pena. See id. (video and audio rec ording s wer e considere d to

Pena has not prese nt ed an y evidenc e reg arding his family or that his, or their, primary 6 conce rn was Pena’s ability to rema in in the United States. Cf

. Ex parte Torres , 483 S.W .3d 35, 50 (Tex. Crim. App. 2016) (mentioning defe ndant had “strong ties” to this country and that defe ndant’s family ’s primary

conce rn wa s g etting de fenda nt out of jail). 13be “ver

y strong ” and “over

whelming ” evidenc e of g uilt). A revie w of the rec ord reve als that Pena did not at any point maintain that he was innocent, and there was no evidenc e of any fac tual or l ega l d ef enses that Pena could have advanc ed at trial to avoid conviction. See Ex parte Torr es , 2015 WL 2066232, at *6. Thus, the likelihood of a conviction for burg lary of a habitation afte r trial

was high, meaning Pena was unlikely to succe ed at trial. Cf. Ex parte Riley , 2016 WL 6068254, at *6 (fin d i n g h i gh likelihood of conviction for assault family violence afte r trial wher e defe ndant admitted to phy sical contac t with wife) ; Ex parte Torres , 2015 WL 2066232, at *6 (finding decision
to reje ct plea ag ree ment not rational under circ umstances wher e d ef endant lacke d evidenc e of
any fac tual or leg al defe nses and lacke d evidenc e of any other plea deal that would have helped
him avoid deporta tion). This fac tor weig hs ag ainst a finding of prejudice

. See, e.g. , Ex parte Torres , 2015 WL 2066232, at * 7 ; F l o res-Alonzo v. State , 460 S.W .3d 197, 206 (Tex. App.—Texarkana 2015, no pet.).

P lea Agre em ent Com pared to P enalties Risked at Trial

I f Pena had not e ntere d into the plea ag ree ment with the State but ha d proce eded to trial and been convicted, he would have risked deporta tion and the same immigra tion conseque nces and could have additionally been sentenc ed to up to twenty y ear s of actua l jail time. See Ex parte 7
Ali , 368 S.W .3d at 840. By taking the plea and ag ree ing to d ef er re d ad j u d ication community supervision, Pena was able to a void sig nificant jail time as well as dispose of his thre e char g es for

The punishment rang e for burg lary of a habitation, a second deg ree felony , is a term of not 7 more than 20 or less than two y ear s’ confine ment in the Texas Depa rtment of Criminal J ustice and, in addition, a fine not to exceed $10,000. See Tex. P enal Code §§ 12.33, 30.02. 14unauthorized use of a motor vehicle. There was no evidenc e of any available plea arr ang ement that

would have avoided adver se immigra tion conseque nces to Pena. See Ex parte Torres , 483 S.W .3d
at 50. A rational non-citizen defe ndant in these circ umstances would likely not risk a trial beca use it would result in n ea r-c erta in conviction with sever e criminal penalties in addition to the same immigra tion conseque nces of pleading g u i l t y . See Ex part e T orres , 2015 WL 2066232, at *7. I n light of this and other evidenc e, the habea s court could have rea sonably conclude d that it would not have been rational under the circ umstances for Pena to reje ct a favor able plea ag ree ment and proce ed
to trial. See Ex parte Riley , 2016 WL 6068254, at *6; Ex parte Ali , 368 S.W .3d at 840; see also Pilla

v. United States , 668 F.3d 368, 373 (6th Cir. 2012) (consider ing overw helming evidenc e of g uilt in concluding that no rea sonable pe rson in defe ndant’s shoes would have proc eede d to trial).

Viewing the evidenc e in the light m o s t favorable to the habea s court’s ruling , and defe rring to the habea s court’s cre dibilit y deter minations as we should, we conclude that the habea s court did not abuse its discretion in deny ing Pena’s habea s application. See Ex parte Torres , 483 S.W .3d at 51. Acc ording ly , we ove rrule Pena ’s sole issue on appe al.

CONCLUSION Having conclude d that the habea s court did not abuse its discretion in deny ing Pena’s application for a writ of habea s corpus, we affi rm t h e o rd er deny ing the application for a writ of habea s corpus.

15__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices F ield and B ourland
Affir med Filed: Jul y

28, 2017 Do Not Publish

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