Affirmed and Memorandum Opinion filed February 26, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00088-CR

SENTHIL MANALAN, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the County Criminal Court at Law No. 11

Harris County, Texas 

Trial Court Cause No. 2061302 

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

A jury found appellant Senthil Manalan guilty of misdemeanor assault. See 

Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2018). The trial court sentenced 

appellant to a one-year confinement probated for two years and a $300 fine. 

Appellant timely appealed and asserts three issues challenging the trial court’s final 

judgment. For the reasons set forth below, we affirm. 
2

FACTUAL BACKGROUND

Appellant and complainant are husband and wife, respectively. Appellant 

and complainant moved from India to the United States in 2013 for appellant’s job. 

Complainant called 9-1-1 on November 11, 2015, reporting that appellant 

had hit her repeatedly with a belt at the couple’s apartment. The alleged assault 

and ensuing events described below are taken from witness testimony from 

appellant’s January 2017 two-day trial. 

Complainant testified that appellant hit her with a belt on November 11, 

2015 because she “borrowed flip-flops from [her] friend[.]” Complainant testified 

that appellant hit her “a lot” on the arms, hands, and legs, and that appellant hit her 

once on the forehead. Complainant stated that she left the couple’s apartment and 

called police “many times.” Complainant waited near the apartment complex’s 

leasing office until Houston Police Officer Ricardo Gonzalez arrived 

approximately four hours later. Complainant returned to the couple’s apartment 

with Officer Gonzalez, but appellant was not at the apartment. 

According to complainant, she had a friend take pictures of her injuries after 

Officer Gonzalez left. Five photographs of complainant were admitted into 

evidence; the photographs show red marks and bruising on complainant’s upper 

arms and a red mark on her forehead. Complainant testified that the red marks 

were “belt marks.” 

While cross-examining complainant, appellant’s trial counsel questioned her 

regarding an alleged assault that occurred the day before complainant called 9-1-1: 

TRIAL COUNSEL: Were you beaten on November 10th? 

COMPLAINANT: Yes. 

TRIAL COUNSEL: Okay. And why didn’t you call police on 

November 10th? 
3

COMPLAINANT: I don’t — I don’t want — my culture is not 

to call. Go be — that is not my culture. I’m 

giving every time chance to [sic] him to 

change. 

Complainant acknowledged that she, appellant, and the couple’s two children were 

preparing to return to India. At the time of trial, complainant was applying for a U 

visa “for people who claim to be the victims of domestic violence.” Complainant 

acknowledged that, “if [she] cooperate[d] with law enforcement[,] that [she] can 

. . . get legal status in this country.” 

Officer Gonzalez, who responded to complainant’s 9-1-1 call, testified that 

he saw “red marks” on complainant’s forehead and arms when he met her at the 

apartment complex’s leasing office. According to Officer Gonzalez, complainant 

told him she “didn’t want to pursue charges against” appellant but wanted Officer 

Gonzalez to “explain to [appellant] that . . . he’s not to hit [complainant] in 

America.” Officer Gonzalez returned to the apartment with complainant, but 

appellant was not present. Officer Gonzalez completed his report; explained to 

complainant “what [she] need[ed] to do for follow up;” and transferred 

complainant’s case to the Houston Police Department’s family violence unit. 

Officer Gonzalez testified that complainant was “consistent in her story;” Officer 

Gonzalez did not “find [complainant] suspicious at all[.]” 

While he was being cross-examined by appellant’s trial counsel, Officer 

Gonzalez reviewed the photographs of complainant that had been admitted into 

evidence. Officer Gonzalez testified that the red mark he saw on complainant’s 

forehead when he arrived at the apartment complex “was actually higher” than the 

mark shown in the photographs. In one of the photographs, complainant shows her 

upper left arm; reviewing this photograph, Officer Gonzalez testified that he did 

not see any injuries on complainant’s upper left arm but recalled “some redness on 
4

her forearms.” 

Officer Gail Sanchez, a detective with the Houston Police Department’s 

family violence unit and the recipient of complainant’s case, also testified at 

appellant’s trial. Recalling her initial conversation with complainant, Officer 

Sanchez testified that complainant “wanted basically just to have an officer contact 

[appellant] and . . . have him not touch her anymore.” Complainant later “changed 

her mind” and told Officer Sanchez that she “wanted to file the charges.” 

Complainant provided Officer Sanchez a written statement regarding the alleged 

assault. 

Officer Sanchez spoke to appellant by phone and scheduled an appointment 

for appellant to come in and “give [his] side of — of what had happened.” 

Appellant did not attend the appointment with Officer Sanchez. Officer Sanchez 

presented complainant’s case to the Harris County District Attorney’s office; the 

District Attorney’s office charged appellant with misdemeanor assault of a family 

member. 

During cross-examination, Officer Sanchez acknowledged that complainant 

told her “she didn’t want to be sent back to India with her children[.]” Officer 

Sanchez also testified that complainant “didn’t want [appellant] deported.” Officer 

Sanchez came to the conclusion that complainant “wanted [appellant] to spend one 

day in jail . . . but not get deported.” 

Devan Arangaramanujam, appellant’s older brother, testified as a witness for 

the defense. Arangaramanujam recalled visiting appellant and complainant on 

November 14-15, 2017; Arangaramanujam stated that he did not “observe anything 

that would lead [him] to believe that [complainant had] been attacked with a belt.” 

Arangaramanujam testified that complainant “asked to process a green card 

through [appellant] that way she can drop the charges . . . [and] stay a little longer. 
5

Like, stay here in the United States.” Appellant’s trial counsel asked 

Arangaramanujam whether he “ha[d] an opinion as to whether [appellant] is 

peaceful and law abiding?” Arangaramanujam replied: “Yes. And he is a very 

gentle and passionate father, also.” 

During cross-examination, the State’s prosecutor questioned 

Arangaramanujam with respect to his description of appellant as a “peaceful and 

loving man.” The State introduced through Arangaramanujam Exhibits 9 and 10: 

Exhibit 9 is a screenshot from a Facebook page. On the page is a post from a 

profile named “Senthil Manalan;” next to the profile name is a small profile 

picture. The post contains the following poem: 

Love ur husband 

when he orders you to make tea or coffee. 

He wants to feel fresh 

to listen [to] your nonstop talks. 

Love him 

if he looks at all the beautiful females. 

He is just checking that you are still the best. 

Love him 

if he criticize[s] your cooking . . . 

He is still improving his taste 

Love him 

if he snores at night and disturbs your sleep. 

He is trying to prove that he is the most relaxed person after being married to you 

Love him 

if he forgets to 

give you a gift on your birthday 

He is saving money for your future. 

Love him . . . 
6

Because . . 

you don’t have a choice . . 

and 

killing is a legal offense . . .!!! 

Exhibit 10 appears to be a full-page version of the profile picture shown next to the 

profile name in Exhibit 9. On the top right corner of Exhibit 10 is the name 

“Senthil Manalan;” underneath the profile name are comments and “likes.” 

Reviewing Exhibit 10, Arangaramanujam responded “Yes” when asked: 

“[D]o you recognize the name on the Facebook page?” Arangaramanujam 

responded “Yes” when asked: “Do you — do you recognize the — the man in this 

picture?” Finally, Arangaramanujam answered “Yes” when asked: “[I]s the photo 

in State’s Exhibit 10 your brother?” When asked if Exhibit 9 contained the “same 

Facebook page,” Arangaramanujam said, “No. I’m not sure of that part.” The trial 

court admitted Exhibits 9 and 10 into evidence over appellant’s objections. 

The jury returned a verdict finding appellant guilty of misdemeanor assault 

of a family member. The trial court signed a final judgment on January 25, 2017, 

and sentenced appellant to a one-year confinement probated for two years and a 

$300 fine. Appellant filed a motion for new trial, which the trial court denied. 

Appellant timely appealed. 

ANALYSIS

Appellant raises three issues on appeal:1

1. The trial court erred in admitting Exhibits 9 and 10 because they were 

not properly authenticated. 

2. The trial court erred by failing to grant appellant’s motion for a 

mistrial after the State’s prosecutor “made an improper racial and 

 

1

 Appellant lists his issues in a different order in his brief’s statement of issues than he 

does in the body of his brief. We address the issues in the order they are listed in the body of 

appellant’s brief. 
7

ethnic appeal in his final argument.” 

3. Appellant’s trial counsel rendered ineffective assistance by failing to 

inform appellant that “he would be subject to ‘presumptively 

mandatory’ deportation as an aggravated felon if he were to receive 

the maximum sentence.” 

We address these issues below. 

I. Admission of Exhibits 9 and 10

Challenging the trial court’s admission of Exhibits 9 and 10, appellant 

asserts that the evidence “was not properly authenticated.” The State argues that 

appellant waived this complaint by failing to raise it at trial. 

To preserve a complaint for appellate review, a party must present a timely 

objection to the trial court, state the specific grounds for the objection, and obtain a 

ruling. See Tex. R. App. P. 33.1(a); Garza v. State, 126 S.W.3d 79, 81-82 (Tex. 

Crim. App. 2004). “There are two main purposes behind requiring a timely, 

specific objection: (1) to inform the judge of the basis of the objection and give 

. . . [the judge] the chance to make a ruling on it, and (2) to give opposing counsel 

the chance to remove the objection or provide other testimony.” Garza, 126 

S.W.3d at 82. 

Appellant raised at trial the following objections with respect to Exhibits 9 

and 10: 

 The exhibits go “beyond the scope of any question” appellant’s trial 

counsel asked Arangaramanujam or “any character trait that 

[appellant’s counsel] elicited.” 

 The exhibits are not relevant to Arangaramanujam’s description of 

appellant as “peaceful and law abiding.” Appellant’s trial counsel 

“didn’t elicit the character traits that [appellant is] a nice husband.” 

 The exhibits do not “relate to the character trait of being passionate 

either.” 
8

 The exhibits’ “connection to any relevant character trait . . . is not 

there. And even if it is there, it’s just — it’s so speculative, Judge. 

It’s really prejudicial.” 

 The exhibits portray “a kind of tongue-in-cheek kind of joke thing that 

[appellant] posted on — on Facebook.” The exhibits are “not 

something that [appellant] wrote himself.” 

 The exhibits are “really prejudicial” and “otherwise inadmissible.” 

 The “poem” shown on Exhibit 9 “relates to the Indian culture 

relationship between the husband and wife. Attacking a person for a 

cultural, religious, or racial trait violates due process of law, due 

course of law, [and] equal protection of law.” 

 “As to both [exhibits], a proper predicate hasn’t been laid; and also 

it’s improper to admit an underlying document like this for 

impeachment purposes. It’s improper impeachment.” 

While making these objections, appellant’s trial counsel did not dispute that 

appellant made the posting shown in Exhibit 9 and stated several times that 

appellant “posted” the poem. Appellant’s trial counsel also stated: 

[Appellant] saw some thing somewhere on the internet, and he 

thought it was amusing. So he — so he reprinted [it] on his Facebook 

page. 

* * * 

I don’t know if he printed it out, but he — he posted on his own 

Facebook page. 

The trial court overruled appellant’s objections to Exhibits 9 and 10. 

Appellant raised at trial several objections challenging Exhibits 9 and 10; 

these objections primarily challenged the exhibits on grounds that they were not 

relevant to the character traits elicited during Arangaramanujam’s direct 

examination. Appellant did not challenge Exhibits 9 and 10 on grounds of 

authentication. Because appellate did not raise his authentication challenge in the 

trial court, it is not preserved for appellate review. See Tex. R. App. P. 33.1(a); 
9

Garza, 126 S.W.3d at 81-82. 

Appellant summarily asserts that his trial counsel “objected that the proper 

predicate was not laid.” But “[a]n objection to an improper predicate that fails to 

inform the trial court exactly how the predicate is deficient will not preserve error.” 

Gregory v. State, 56 S.W.3d 164, 182 (Tex. App.—Houston [14th Dist.] 2001, pet. 

dism’d); see also Beck v. State, 719 S.W.2d 205, 214 (Tex. Crim. App. 1986); Bird 

v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985); Edwards v. State, 497 S.W.3d 

147, 163 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); Young v. State, 183 

S.W.3d 699, 704-05 (Tex. App.—Tyler 2005, pet. ref’d); Teixeira v. State, 89 

S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d.). Appellant’s assertion 

that “a proper predicate hasn’t been laid” does not preserve his authenticity 

challenge for appeal. See Gregory, 56 S.W.3d at 182. 

Although a specific objection may not be required “as long as the court can 

understand from the context what the complaint is,” the context surrounding 

appellant’s “predicate” objection did not suggest that appellant intended to 

challenge the authenticity of Exhibits 9 and 10. See Clark v. State, 365 S.W.3d 

333, 337 (Tex. Crim. App. 2012). In voicing his objections, appellant primarily 

asserted that Exhibits 9 and 10 were not relevant to the character traits elicited 

during Arangaramanujam’s direct examination; appellant also asserted the poem in 

Exhibit 9 was a “joke” and “really prejudicial.” Appellant’s trial counsel stated 

several times that appellant “posted” the poem on his Facebook page. This context 

does not suggest that appellant sought to challenge the authenticity of Exhibits 9 

and 10, and does not preserve appellant’s authentication issue for our review. See 

id. 

We overrule appellant’s first issue. 
10

II. Denial of Mistrial

An attorney’s jury argument is proper if it fits into one or more of the 

following categories: (1) summation of the evidence; (2) reasonable deductions 

from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for 

law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). 

During his closing argument, the State’s prosecutor made the following remarks: 

The defense wants you to think that, you know, [complainant] is some 

Shakespearean actress that’s been on Broadway, knows how to fake 

cry and — and pretends that, you know, her life’s in shambles and 

called dispatch and she’s just the liar of the century. Wow. Man. 

That’s — whew. What a story. But that’s not credible. That’s not a 

reasonable story to believe. The — the reasonable story would — 

would be what she told you on the stand happened, which is her 

husband beat her with a belt; and then she called 9-1-1 because she 

didn’t know what to do anymore. 

You know, she’s conflicted. Her culture tells her to just submit. 

Appellant’s trial counsel objected, asserting the prosecutor was “striking at 

[appellant] with a cultural reference and — and also arguing that certain actions 

were taken in conformity with [appellant’s and complainant’s] culture.” The trial 

court sustained appellant’s objection and instructed the jury to “disregard the last 

remark of the prosecutor. Do not consider it for any purpose now or later during 

your deliberations.” Appellant moved for a mistrial; the trial court denied 

appellant’s motion. Appellant’s motion for mistrial and the trial court’s denial 

preserve this issue for appellate review. See Cruz v. State, 225 S.W.3d 546, 548 

(Tex. Crim. App. 2007). 

Appellant argues on appeal that the trial court erred by failing to “grant[] a 

mistrial after the prosecutor made an improper racial and ethnic appeal in his final 

argument.” The State asserts that (1) the prosecutor’s comments during closing 

argument were not improper; and (2) the trial court did not abuse its discretion in 
11

denying appellant’s motion for mistrial. 

Because the trial court sustained appellant’s objection and instructed the jury 

to disregard the argument, “the only adverse ruling — and thus the only occasion 

for making a mistake — was the trial court’s denial of the motion for mistrial.” 

Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011) (internal quotation 

omitted). We therefore limit our review to the trial court’s denial of a mistrial. See 

id. We presume for purposes of the analysis that the challenged comments were 

improper. See Crayton v. State, 463 S.W.3d 531, 534 (Tex. App.—Houston [14th 

Dist.] 2015, no pet.). 

A. Legal Standards

A mistrial is an appropriate remedy only in “extreme circumstances” for a 

limited class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 

880, 884 (Tex. Crim. App. 2009). “A mistrial halts proceedings when error is so 

prejudicial that expenditure of further time and expense would be wasteful and 

futile.” Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). 

We review the trial court’s denial of a mistrial for an abuse of discretion. 

Id.; Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We consider the 

evidence in the light most favorable to the trial court’s ruling, considering only 

those arguments before the court at the time of the ruling. Ocon, 284 S.W.3d at 

884; Pena v. State, 554 S.W.3d 242, 251 (Tex. App.—Houston [14th Dist.] 2018, 

pet. filed). “The ruling must be upheld if it was within the zone of reasonable 

disagreement.” Ocon, 284 S.W.3d at 884. 

To determine whether the trial court abused its discretion in denying a 

mistrial for improper jury argument, we balance three factors: “(1) the severity of 

the misconduct (the magnitude of the prejudicial effect of the prosecutor’s 
12

remarks), (2) the measures adopted to cure the misconduct (the efficacy of any 

cautionary instruction by the judge), and (3) the certainty of conviction absent the 

misconduct (the strength of evidence supporting the conviction).” Archie, 340 

S.W.3d at 739 (citing Hawkins, 135 S.W.3d at 77). 

A mistrial is the proper remedy for an improper jury argument only when the 

argument is so emotionally inflammatory that curative instructions are not likely to 

prevent the jury from being unfairly prejudiced against the defendant. See Archie 

v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Pena, 554 S.W.3d at 251; 

see also Gilbert v. State, 494 S.W.3d 758, 770 (Tex. App.—Houston [14th Dist.] 

2016, pet. ref’d).

B. Application of Legal Standards

In his closing argument, the prosecutor stated that “[complainant’s] culture 

tells her to just submit.” Appellant argues this “improper racial and ethnic appeal” 

was not cured by the trial court’s instruction to disregard. 

With respect to the first Archie factor, we consider the severity of the 

misconduct, i.e., the magnitude of the remark’s prejudicial effects. See Archie, 340 

S.W.3d at 739. The State argues the challenged remark draws on the following 

portions of complainant’s testimony: she did not want appellant arrested 

“[b]ecause of [her] culture;” she was “waiting for [appellant] to change;” her 

“culture is not to call;” and she was “giving [appellant] every time chance to [sic] 

him to change.” Although complainant did not specifically state that her culture 

directed her to “submit,” she made several statements associating her culture with 

her reluctance to call the police. Presuming for purposes of our analysis that the 

remark was improper, we conclude that summarizing complainant’s associations of 

her culture with the word “submit” was not necessarily emotionally inflammatory 

or, if so, that it would rise to a level that curative instructions would not likely 
13

prevent unfair prejudice. See Submit, New Oxford American Dictionary (3rd ed. 

2010) (“submit” defined as “accept[ing] or yield[ing] to a superior force or to the 

authority or will of another person”); see also Brown, 270 S.W.3d at 570 (proper 

jury arguments include summations of the evidence and reasonable deductions 

from the evidence). 

Turning to the second Archie factor, we note that the trial court instructed 

the jury to “disregard the last remark of the prosecutor. Do not consider it for any 

purpose now or later during your deliberations.” An instruction to disregard an

improper jury argument typically cures the error. Phillips v. State, 130 S.W.3d 

343, 356 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex. 

Crim. App. 2006). “The law generally presumes that instructions to disregard and 

other cautionary instructions will be duly obeyed by the jury.” Archie, 340 S.W.3d 

at 734. Moreover, appellant has not pointed to any evidence suggesting the jury 

failed to follow the trial court’s instructions. See Nickerson v. State, 312 S.W.3d 

250, 266 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). In the absence of any 

evidence to the contrary, we presume the jury followed the trial court’s 

instructions. See id. 

For the final Archie factor, we examine the certainty of appellant’s 

conviction absent the alleged misconduct. Archie, 340 S.W.3d at 741. Here, 

complainant testified that appellant hit her with a belt on November 11, 2015. 

Photographs were admitted showing red marks and bruising on complainant’s 

upper arms and a red mark on her forehead; complainant testified that these 

photographs were taken the day of the reported incident and showed “belt marks.” 

Officer Gonzalez testified that he saw “red marks” on complainant’s forehead and 

arms when he responded to complainant’s 9-1-1 call. Officer Gonzalez testified 

that complainant was “consistent in her story” and that he did not “find 
14

[complainant] suspicious at all[.]” This testimony and reasonable inferences the 

jury could draw therefrom support the elements of the charged crime. See Tex. 

Penal Code Ann. § 22.01(a). We are unable to conclude with any certainty that the 

jury would have rejected this testimony absent the presumptively improper jury 

argument. See Archie, 340 S.W.3d at 739; Ocon, 284 S.W.3d at 884. 

Balancing the Archie factors and considering the evidence in the light most 

favorable to the challenged ruling, the trial court’s denial of a mistrial was not an 

abuse of discretion. See Archie, 340 S.W.3d at 739; Ocon, 284 S.W.3d at 884. We 

overrule appellant’s second issue. 

III. Ineffective Assistance of Counsel Claim

Arguing that he received ineffective assistance of counsel, appellant asserts 

that his trial counsel failed to inform him that “he would be subject to 

‘presumptively mandatory’ deportation as an aggravated felon if he were to receive 

the maximum sentence.” Appellant cites Padilla v. Kentucky, 559 U.S. 356 

(2010), to support his ineffective assistance claim. Appellant raised this argument 

in his motion for new trial, which the trial court denied.2

 

A. Legal Standards 

When an ineffective assistance claim in a motion for new trial is rejected by 

the trial court and reasserted on appeal, we review the ineffective assistance claim 

as a challenge to the denial of the new trial motion. See Holden v. State, 201 

S.W.3d 761, 763 (Tex. Crim. App. 2006); Green v. State, 554 S.W.3d 785, 788-89

(Tex. App.—Houston [14th Dist.] 2018, no pet.). We review a trial court’s denial 

of a motion for new trial for an abuse of discretion, reversing only if the trial 

court’s ruling was clearly erroneous and arbitrary. Okonkwo v. State, 398 S.W.3d 

 

2

 Ineffective assistance claims raised in a motion for new trial are preserved for appellate 

review. Reyes v. State, 849 S.W.2d 812, 814 (Tex. Crim. App. 1993). 
15

689, 694 (Tex. Crim. App. 2013). A trial court abuses its discretion if no 

reasonable view of the record could support its ruling. Id. We view the evidence 

in the light most favorable to the trial court’s ruling and presume the trial court 

made all findings, express and implied, in favor of the prevailing party. Id. 

When, as here, the trial court’s ruling on a new trial motion is based solely 

upon affidavits, “a deferential rather than de novo standard applies to our review of 

a trial court’s determination of historical facts.” Charles v. State, 146 S.W.3d 204, 

210 (Tex. Crim. App. 2004), superseded on other grounds by State v. Herndon, 

215 S.W.3d 901 (Tex. Crim. App. 2007). We defer to the trial court’s credibility 

determinations and will not substitute our judgment for that of the trial court. 

Frangias v. State, 413 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2013, 

no pet.). 

An ineffective assistance claim is analyzed pursuant to the two-prong test 

described in Strickland v. Washington, 466 U.S. 668 (1984). To show ineffective 

assistance of counsel under Strickland, a defendant must show (1) counsel’s 

performance was deficient, i.e., that counsel’s assistance fell below an objective 

standard of reasonableness; and (2) a reasonable probability that, but for counsel’s 

errors, the result of the proceeding would have been different. Id. at 687-88; Perez 

v. State, 310 S.W.3d 890, 892-83 (Tex. Crim. App. 2010). A defendant must 

establish both the performance and prejudice prongs of the Strickland test; failure 

to satisfy either prong defeats the defendant’s ineffectiveness claim. Perez, 310 

S.W.3d at 893. 

With respect to Strickland’s performance prong, our review is “highly 

deferential and presumes that counsel’s actions fell within the wide range of 

reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. 

Crim. App. 2002). The benchmark for judging an ineffectiveness claim is 
16

“whether counsel’s conduct so undermined the proper functioning of the 

adversarial process that the trial cannot be relied on as having produced a just 

result.” Strickland, 466 U.S. at 686; see also Ex parte Chandler, 182 S.W.3d 350, 

353-54 (Tex. Crim. App. 2005) (orig. proceeding) (“It is only in that relatively rare 

situation that a criminal defendant may obtain a new trial based upon a claim that 

his attorney provided constitutionally deficient assistance.”). 

Strickland’s standards apply to ineffective assistance claims asserting that 

counsel failed to apprise a non-citizen client about adverse immigration 

consequences associated with the client’s legal proceedings. See Padilla, 559 U.S. 

at 369-72; see, e.g., Ex parte Torres, 483 S.W.3d 35, 43-44 (Tex. Crim. App. 

2016). For the first prong of the Strickland test, Padilla provides that trial 

counsel’s performance is deficient if counsel fails to advise a non-citizen client 

about deportation consequences that are “truly clear.” 559 U.S. at 369. The 

immigration consequences in Padilla were “truly clear” where the defendant 

pleaded guilty “to the transportation of a large amount of marijuana,” which 

rendered the defendant’s subsequent deportation “presumptively mandatory.” Id. 

at 359, 369. But Padilla also acknowledges that, in numerous situations, “the 

deportation consequences of a particular plea are unclear or uncertain.” Id. at 369. 

When deportation consequences are 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. 

Ineffective assistance claims citing Padilla have been asserted to challenge 

the voluntariness of a guilty plea. See, e.g., Ex parte Roldan, 418 S.W.3d 143, 145 

(Tex. App.—Houston [14th Dist.] 2013, no pet.); Ex parte Fassi, 388 S.W.3d 881, 

883 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In this context, the prejudice 

prong of the Strickland test requires the defendant to show a reasonable probability 
17

that, but for trial counsel’s errors, the defendant would not have pleaded guilty and 

would have insisted on going to trial. Ex parte Fassi, 388 S.W.3d at 886-87. This 

test is “‘objective’” and “‘turns on what a reasonable person in the defendant’s 

shoes would do.’” Id. at 887 (quoting U.S. v. Smith, 844 F.2d 203, 209 (5th Cir. 

1988) (per curiam)). When, as in this case, the prejudice prong of the Strickland 

test is dispositive, we address only that issue on appeal. Seamster v. State, 344 

S.W.3d 592, 594 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); see also 

Strickland, 466 U.S. at 697. 

Appellant asserts that, if he had been apprised of “[t]he immigration 

consequences of proceeding to trial,” he “would have acted differently.” Although 

these circumstances run counter to the typical Padilla scenario, the prejudice prong 

of the Strickland test nonetheless may be satisfied by showing a reasonable 

probability that, but for trial counsel’s errors, appellant would not have proceeded 

to trial and instead would have accepted the State’s plea offer. Ex parte Fassi, 388 

S.W.3d at 886-87 (burden on the defendant to prove that it would have been 

rational for the defendant to have rejected the plea deal and insisted on going to 

trial). 

B. Application of Legal Standards 

Appellant does not point to any part of the record to support his claim that 

“he would have acted differently had he known” the immigration consequences 

associated with proceeding to trial. In the affidavit included with his motion for 

new trial, appellant states: 

My trial lawyers did not tell me that a one-year sentence would result 

in an aggravated felony, nor did anyone else before I was convicted 

and sentenced. Had I known, I would not have chosen to proceed to 

trial. The chance of an acquittal would have been greatly outweighed 

in my mind by the chance that a sentence of probation would have 
18

been a one-year sentence that was probated. 

Assuming the trial court made all findings in favor of its decision, we presume the 

trial court disregarded appellant’s statement that he “would not have chosen to 

proceed to trial.” See Okonkwo, 398 S.W.3d at 694. In light of the deferential 

standard under which we review the trial court’s credibility determinations and its

resolution of historical facts, the trial court’s decision to disregard appellant’s 

statement does not constitute an abuse of its discretion. In the absence of any other 

evidence supporting the prejudice prong of the Strickland test, the trial court did 

not err in denying appellant’s motion for new trial. 

Moreover, the same immigration consequences likely would have resulted 

from the other course of action available to appellant during the underlying 

proceedings. Appellant asserts in his affidavit that he would have accepted “a 

sentence of probation [which] would have been a one-year sentence that was 

probated.” Corroborating appellant’s statement regarding an alternative offer, the 

April 5, 2017 affidavit of prosecutor Andrew J. Figliuzzi states that appellant was 

offered “a Deferred Adjudication in order to resolve the case” and that the offer 

was left open during the pendency of the case up until trial.3

 But like appellant’s 

conviction rendered after the jury’s “guilty” verdict, appellant’s acceptance of the 

State’s deferred adjudication offer would have rendered deportation 

“presumptively mandatory” under federal law. See Padilla, 559 U.S. at 369 

Federal law provides that an “alien who at any time after admission is 

convicted of a crime of domestic violence . . . is deportable.” 8 U.S.C.A. 

§ 1227(a)(2)(E)(i) (West 2017). A “crime of domestic violence” is defined as “any 

crime of violence . . . against a person committed by a current or former spouse of 

 

3

 “Deferred adjudication” may also be referred to as “probation.” See Davis v. State, 968 

S.W.2d 368, 369 (Tex. Crim. App. 1998). 
19

the person.” Id. A “crime of violence” is defined as “an offense that has as an 

element the use, attempted use, or threatened use of physical force against the 

person or property of another.” 18 U.S.C.A. § 16(a) (West 2015). 

Appellant was charged with assaulting a family member, a Class A 

misdemeanor offense. See Tex. Penal Code Ann. § 22.01(a). This offense falls 

within the “crime of domestic violence” described by section 1227 and a 

conviction for this offense may result in deportation. See 8 U.S.C.A. 

§ 1227(a)(2)(E)(i); 18 U.S.C.A. § 16(a); see, e.g., Ex parte Aguilera, 540 S.W.3d 

239, 242, 248, 251(Tex. App.—Houston [1st Dist.] 2018, no pet.) (defendant 

pleaded guilty to charge for assault of a family member in exchange for one-year 

deferred adjudication; defendant subject to deportation under federal law). For 

purposes of deportation, a “conviction” includes deferred adjudication. See 8 

U.S.C.A. § 1101(48)(A) (West 2017) (defining “conviction” to include, “if 

adjudication of guilt has been withheld, where . . . the alien has entered a plea of 

guilty or nolo contendere” and “the judge has ordered some form of punishment, 

penalty, or restraint on the alien’s liberty to be imposed”). 

Accordingly, had appellant accepted the State’s offer of deferred 

adjudication, he nonetheless would have been subject to mandatory deportation 

under federal law. See 8 U.S.C.A. §§ 1101(48)(A), 1227 (a)(2)(E)(i); 18 U.S.C.A 

§ 16(a); see, e.g., Ex parte Aguilera, 540 S.W.3d at 242, 248, 251. This conclusion 

does not support appellant’s contention that “he would have acted differently had 

he known” the immigration consequences associated with proceeding to trial — 

the deportation consequences were the same whether appellant proceeded to trial 

or accepted an offer of deferred adjudication. 

Because the evidence does not show appellant was prejudiced by his trial 

counsel’s alleged errors, the trial court’s denial of appellant’s new trial motion 
20

does not constitute an abuse of discretion. See Strickland, 466 U.S. at 697; 

Seamster, 344 S.W.3d at 594. We overrule appellant’s third issue. 

CONCLUSION

We overrule appellant’s issues on appeal and affirm the trial court’s 

judgment. 

 /s/ Meagan Hassan

 Justice 

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan. 

Do Not Publish — Tex. R. App. P. 47.2(b).