Affirmed and Opinion filed December 4, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00914-CR

EX PARTE MARTIN FASSI

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 08-CCR-137463

O P I N I O N

Appellant Martin Fassi appeals from the habeas court‘s order denying his 

application for a writ of habeas corpus under Article 11.072 of the Texas Code of 

Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2005). 

Appellant contends the habeas court erred by finding that appellant‘s plea counsel 

rendered effective assistance of counsel, despite counsel‘s failure to discuss clear 

immigration consequences of appellant‘s plea in violation of Padilla v. Kentucky, 130 S. 

Ct. 1473 (2010). We hold that the habeas court did not abuse its discretion by finding 

that appellant failed to prove ineffective assistance of counsel, and we affirm.
2

I. BACKGROUND

Appellant was charged with possessing two ounces or less of marijuana, a Class B 

misdemeanor. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (West 2010). 

He faced up to six months‘ confinement and a $2,000 fine. See TEX. PENAL CODE ANN.

§ 12.22 (West 2011). He retained counsel, Archibald Henderson III, who advised 

appellant regarding a guilty plea. On May 30, 2008, appellant pled guilty pursuant to an 

agreement with the State, and the trial court sentenced appellant to six months‘ deferred 

adjudication probation and assessed a $150 fine. At the time of his plea, appellant was 

eighteen years old, a lawful permanent resident of the United States, and a national of 

Argentina. He had moved to the United States with his family when he was fourteen 

years old.

After the United States Supreme Court issued its opinion in Padilla v. Kentucky

concerning a plea counsel‘s duty to discuss immigration consequences with noncitizen

defendants, appellant applied for a writ of habeas corpus and attached his own affidavit. 

He contended that Henderson did not discuss with him the immigration consequences of 

his guilty plea, and that after he returned from a trip to Argentina in 2010, he was 

―detained by Immigration Agents and placed in deportation proceedings due to [his] 

guilty plea [in] this case.‖ The State responded, attaching affidavits from Henderson and 

the arresting officer, Henry Torres. The habeas court held a hearing on the application, 

and three witnesses testified: appellant, Henderson, and appellant‘s immigration attorney, 

Raed Gonzalez.

The court denied the application and signed findings of fact and conclusions of 

law, including the following:

Findings of Facts

. . . .

8. Applicant was ordered to appear for deferred immigration inspection on 

March 10, 2010.

9. No determination of whether Applicant is finally deportable has been 

made by Immigration and Customs Enforcement.
3

. . . .

14. Henderson advised Applicant that because of his status as a lawful 

permanent residen[t], he could face negative immigration consequences as 

a result of his plea of guilty in this case.

15. Henderson further advised Applicant regarding the potential 

immigration consequences of his plea when he read to him the paragraph in 

the Court‘s plea papers which states that ―If you are not a citizen of the 

United States of America, your plea of guilty or nolo contendere for the 

offense charged may result in deportation, the exclusion from admission to 

this country, or the denial of naturalization under federal law.‖

16. Henderson also advised Applicant that there was a waiver of 

deportation available in cases where a defendant was convicted of a single 

offense of possession of marihuana under 30 grams.

17. Applicant presented a Judgment and Sentence of a conviction for 

possession of drug paraphernalia in a lower court, prior to his plea in this 

case.

18. Applicant did not inform Archibald Henderson III of his prior plea of 

guilty to the charge of possession of drug paraphernalia.

. . . .

21. The Court is aware of the Judge who accepted Applicant‘s plea, and 

the Court is aware that it was that Judge‘s strict practice to ask a defendant 

when taking a plea if the defendant had read and understood the plea 

paperwork. It is the Court‘s recollection and belief that the Judge would 

not have taken any plea where the defendant advised that he had not read 

the papers, or where he did not understand them, or where he expressed any 

doubts as to the consequences of his entering a plea of guilty.

22. . . . Applicant further made no showing that he ever questioned his 

attorney at the time of the plea regarding any such factors that might limit 

his deportation consequences.

. . . .

24. Applicant has presented no evidence that any alternative plea bargain 

was available in his case that would have allowed him to avoid negative 

immigration consequences.

25. Based on the credible affidavit of Officer Henry Torres, Applicant was 

the driver of a motor vehicle that was stopped by Officer Torres for 

committing a traffic law violation. Applicant smelled of the odor of 

marihuana and had flakes of marihuana on his shirt. Affiant initially denied 

possessing marihuana, but after his passenger admitted possessing 
4

marihuana, Applicant confessed that he did in fact have marihuana in the 

vehicle. Officer Torres searched the vehicle and found marihuana in the 

vehicle as Applicant confessed. Officer Torres weighed the marihuana he 

believed Applicant to be in possession of, and it weighed approximately 6.5 

grams.

26. Although Applicant claims that but for counsel‘s ―failure,‖ he would 

have insisted on a jury trial, the evidence of Applicant‘s guilt in Applicant‘s

underlying case, was overwhelming.

. . . .

Conclusions of Law

. . . .

4. The United States Supreme Court‘s holding in Padilla v. Kentucky, 130 

S. Ct. 1473 (2010), that a criminal defense lawyer has an affirmative duty 

to advise a noncitizen client of the potential immigration consequences of 

his plea bargain is a new rule of procedure, and as such does not apply 

retroactively. . . .

5. The Court‘s written admonishment that a noncitizen defendant may be 

deported, denied admission or denied naturalization contained in the court‘s 

plea paperwork, which the Applicant initialed, is in compliance with Texas 

Code of Criminal Procedure Article 26.13.

. . . .[

1

]

16. To obtain relief on a claim of ineffective assistance of counsel under 

Padilla, a petitioner must convince the court that a decision to reject the 

plea bargain would have been rational under the circumstances. Padilla, 

130 S. Ct. at 1485. In light of the overwhelming evidence of Applicant‘s 

guilt in this case, the lack of any evidence of any legal or factual defenses 

available to Applicant, and the potential punishment for a Class B 

Misdemeanor punishable by up to six months confinement in county jail 

and a fine up to $2,000, it would not have been rational under the 

circumstances to reject the plea bargain for six months deferred 

adjudication probation.

17. . . . In light of the overwhelming evidence of Applicant‘s guilt and the 

favorable sentence negotiated by his trial counsel, Applicant has shown no 

prejudice in this case.

 

1 The court concluded that the immigration consequences were not clear, succinct, and explicit, so 

plea counsel did not perform deficiently by advising applicant he ―could‖ be deported rather than 

providing more detailed warnings or advice concerning the immigration consequences of his plea. We do 

not recite these conclusions verbatim because we assume for purposes of this appeal that counsel was 

deficient.
5

18. Applicant did not allege, and did not prove, by a preponderance of the 

evidence, the availability of any other potential plea bargain that would 

have allowed him to avoid potentially negative immigration consequences.

19. Because Applicant could not show the availability of any plea bargain 

that would have allowed him to avoid the potential negative immigration 

consequences incident to his plea, and because he could not show any legal 

or factual defense to the offense charged, he did not make a showing that it 

would have been rational for him to reject the plea bargain and proceed to 

trial.

II. ANALYSIS

Appellant contends that the habeas court abused its discretion by denying relief 

because plea counsel‘s advice that appellant ―could face negative immigration 

consequences‖ was inadequate under Padilla‘s requirement for plea counsel to advise 

noncitizen defendants of truly clear deportation consequences. The State responds that 

Padilla does not apply retroactively; counsel‘s advice was adequate because the 

deportation consequences in this case were not clear; and appellant failed to establish 

prejudice.

We recently rejected the State‘s argument concerning Padilla‘s retroactivity. See 

Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App.—Houston [14th Dist.] 2012, pet. filed). 

However, we hold that the habeas court acted within its discretion by concluding that 

appellant failed to prove prejudice.

A. Habeas Corpus Standard of Review

We review a habeas court‘s decision on an application for a writ of habeas corpus 

under an abuse of discretion standard of review. Id. at 520. The applicant bears the 

burden of establishing by a preponderance of the evidence that the facts entitle him to 

relief. Id. We consider the evidence presented in the light most favorable to the habeas 

court‘s ruling regardless of whether the court‘s findings are implied or explicit, or based 

on affidavits or live testimony. Id. If the resolution of the ultimate question turns on an 

application of legal standards, we review the issue de novo. Id. at 521.
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B. Legal Principles for Claims of Ineffective Assistance of Counsel

To prevail on an ineffective assistance claim, an applicant must show that (1) 

counsel‘s performance was deficient by falling below an objective standard of 

reasonableness; and (2) counsel‘s deficiency caused the defendant prejudice—that is, 

there is a probability sufficient to undermine confidence in the outcome that but for 

counsel‘s errors, the result of the proceeding would have been different. See Strickland v. 

Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310 S.W.3d 890, 892–93 

(Tex. Crim. App. 2010). The applicant must prove both prongs of the test by a 

preponderance of the evidence; failure to establish either deficient performance or 

prejudice will defeat a claim of ineffectiveness. Perez, 310 S.W.3d at 893.

A defendant has the right to effective assistance of counsel in guilty-plea 

proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). A 

guilty plea must represent a ― ̳voluntary and intelligent choice among the alternative 

courses of action open to the defendant.‘‖ Aguilar, 375 S.W.3d at 521 (quoting North

Carolina v. Alford, 400 U.S. 25, 31 (1970)). ―A guilty plea is not knowing or voluntary 

if made as a result of ineffective assistance of counsel.‖ Ex parte Moussazadeh, 361 

S.W.3d 684, 689 (Tex. Crim. App. 2012). ―Specifically, when a person challenges the 

validity of a plea entered upon the advice of counsel, contending that his counsel was 

ineffective, the voluntariness of the plea depends on (1) whether counsel‘s advice was 

within the range of competence demanded of attorneys in criminal cases and if not, (2) 

whether there is a reasonable probability that, but for counsel‘s errors, he would not have 

pleaded guilty.‖ Ex parte Harrington, 310 S.W.3d at 458 (quotations omitted). 

Plea counsel‘s performance is deficient if counsel fails to advise a noncitizen

defendant about deportation consequences that are ―truly clear.‖ See Padilla, 130 S. Ct. 

at 1483; Aguilar, 375 S.W.3d at 524. Thus, plea counsel is deficient if counsel merely 

mentions the possibility of deportation when the relevant immigration provisions are 

presumptively mandatory. See Aguilar, 375 S.W.3d at 524 (citing United States v. 

Bonilla, 637 F.3d 980, 984 (9th Cir. 2011)). To establish prejudice, an applicant ―must 
7

convince the court that a decision to reject the plea bargain would have been rational 

under the circumstances.‖ Padilla, 130 S. Ct. at 1485; Aguilar, 375 S.W.3d at 525. ―The 

test is objective; it turns on what a reasonable person in the defendant‘s shoes would do.‖ 

United States v. Smith, 844 F.2d 203, 209 (5th Cir. 1988) (per curiam).

When the prejudice prong of the Strickland test is dispositive, as here, we will 

address only that prong 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. Consistent 

with the abuse of discretion standard of review, we give deference to the habeas court‘s 

underlying historical fact determinations, but the ultimate question of prejudice under 

Strickland is reviewed de novo. See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. 

App. 2005) (reviewing denial of motion for new trial).

C. Evidence Properly Before the Habeas Court

As a threshold matter, we address appellant‘s contention that documents attached 

as exhibits to his habeas application and the State‘s response could not be considered by 

the habeas court because the documents were not ―introduced into evidence by any 

party.‖2 Article 11.072 establishes the procedure in this case: ―In making its 

determination, the [habeas] court may order affidavits, depositions, interrogatories, or a 

hearing, and may rely on the court‘s personal recollection.‖ TEX. CODE CRIM. PROC.

ANN. art. 11.072, § 6(b).

Because the statute does not require the habeas court to hold a hearing and allows 

the court to ―order affidavits,‖ the court may consider affidavits attached to the 

application and the State‘s response. See Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. 

App.—Fort Worth 2005, no pet.) (―[W]e find nothing in article 11.072 prohibiting the 

trial court from considering evidence filed with the application or with the State‘s 

response. . . . [T]he legislature did not intend to prohibit the trial court from considering 

such evidence without hearing.‖); see also Ex parte Rabago, No. 14-12-00027-CR, 2012 

 

2 The documents include an affidavit from the arresting officer, Henry Torres.
8

WL 3678593, at *3, *5 (Tex. App.—Houston [14th Dist.] Aug. 28, 2012, no pet.) (mem. 

op., not designated for publication) (no error for habeas court to deny Padilla-based 

claim under Article 11.072 after considering affidavits attached to the pleadings without 

holding a hearing) (citing Ex parte Davila, 530 S.W.2d 543, 545 (Tex. Crim. App. 

1975)); Ex parte Carbajal, No. 08-03-00297-CR, 2004 WL 1772113, at *8 (Tex. App.—

El Paso Aug. 5, 2004, pet. ref‘d) (mem. op., not designated for publication) (―[E]vidence 

in the form of affidavits is clearly permissible under 11.072 . . . .‖).

Similarly, we find nothing in Article 11.072 requiring the habeas court to 

disregard evidence attached to the habeas application or the State‘s response when the 

court holds an evidentiary hearing. We conclude that the habeas court was entitled to 

consider such evidence.

D. No Prejudice

We must determine whether appellant proved there is a reasonable probability that

but for counsel‘s errors, he would not have pled guilty, which requires proof that a 

decision to reject the plea bargain was rational under the circumstances. See Ex parte 

Harrington, 310 S.W.3d at 458; Padilla, 130 S. Ct. at 1485. This inquiry is made on a 

case-by-case basis, considering the circumstances surrounding the plea and the gravity of 

the alleged failure. See Ex parte Moreno, No. 02-11-00272-CR, — S.W.3d —, 2012 WL 

3734003, at *4, *7 (Tex. App.—Fort Worth Aug. 30, 2012, no pet. h.); see also Aguilar, 

375 S.W.3d at 525–26.

Initially, we note that the habeas court was free to disbelieve appellant‘s selfserving testimony that he would not have pled guilty if he had been aware of the 

immigration consequences of his plea. See Ex parte Moreno, 2012 WL 3734003, at *5; 

Ex parte Ali, 368 S.W.3d 827, 840–41 (Tex. App.—Austin 2012, pet. ref‘d); see also Ex 

parte Tovilla, No. 14-11-01120-CR, 2012 WL 113049, at *3 (Tex. App.—Houston [14th 

Dist.] Jan. 12, 2012, pet. ref‘d) (mem. op., not designated for publication). We defer to 

the habeas court‘s findings based on credibility. See Ex parte Tovilla, 2012 WL 113049, 

at *3; see also In re M.P.A., 364 S.W.3d 277, 284 (Tex. 2012); Ex parte Thompson, 153 
9

S.W.3d 416, 417–18 (Tex. Crim. App. 2005).3 Further, it is irrelevant that appellant 

actually became the subject of deportation proceedings as a result of his plea. See 

Aguilar, 375 S.W.3d at 526 n.8 (ongoing deportation proceedings not necessary to assert 

Padilla claim); cf. Strickland, 466 U.S. at 690 (adequacy of representation should not be 

evaluated with ―the distorting effects of hindsight‖).

The habeas court considered the ―overwhelming‖ evidence of appellant‘s guilt, the 

fact that he faced up to six months‘ confinement and a $2,000 fine if convicted, the lack 

of evidence of any factual or legal defenses, and the lack of evidence that any other plea 

deal would have helped him avoid deportation. These factors suggest that a rational 

noncitizen defendant would likely not risk a trial if the result is near-certain conviction—

under those circumstances, the defendant faces a harsher criminal penalty in addition to

the same immigration consequences of pleading guilty. See Ex parte Ali, 368 S.W.3d at 

840 (overwhelming evidence of guilt meant that the applicant‘s conviction was ―virtually 

certain,‖ and by rejecting the plea deal, the applicant ―would have risked the same 

deportation consequences and, in addition, could have been sentenced to up to one full 

year of actual jail time‖); see also Ex parte Moreno, 2012 WL 3734003, at *6 (finding no 

prejudice when there was no evidence that the State would have considered or accepted a 

plea bargain for a charge not resulting in the same immigration consequences).4

 

3 But see Ex parte Romero, 351 S.W.3d 127, 131 (Tex. App.—San Antonio Aug. 3, 2011, no pet.) 

(habeas court abused its discretion denying the writ because the appellant stated in his affidavit that he 

would not have pled guilty).

4 We note that the inquiry is not whether appellant would have received a more favorable 

disposition if he had gone to trial. See Johnson, 169 S.W.3d at 231. But to determine whether it would 

be rational for a defendant to insist on going to trial, a habeas court properly considers evidence 

concerning the likelihood of success at trial—if there is overwhelming evidence of guilt and no evidence 

of a legal or factual defense to the crime, then it likely would be irrational to go to trial. See Ex parte Ali, 

368 S.W.3d at 840 (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985) (―In many guilty plea cases, the 

 ̳prejudice‘ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance 

challenges to convictions obtained through a trial. . . . [For example], where the alleged error of counsel 

is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution 

of the  ̳prejudice‘ inquiry will depend largely on whether the affirmative defense likely would have 

succeeded at trial.‖)).
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The habeas court specifically found Officer Torres‘s affidavit credible and 

highlighted some of the ―overwhelming‖ evidence of appellant‘s guilt: he smelled of 

marijuana, had flakes of marijuana on his shirt, and confessed to having marijuana in the 

car he was driving.5 During the habeas hearing, appellant also admitted that he ―did 

illegally possess marijuana in this underlying marijuana case.‖ On redirect, appellant 

said he did not know the legal definition of possession and did not know if the search was 

lawful, but appellant presented no affirmative evidence that he had any factual or legal 

defenses to the charge. Accordingly, the habeas court‘s findings are supported by the 

evidence.

Further, although the Padilla Court recognized that deportation consequences are 

―sometimes the most important part‖ of the penalty that may be imposed on noncitizens 

who plead guilty, 130 S. Ct. at 1481, this record contains no evidence indicating that 

immigration consequences were appellant‘s paramount concern. The habeas court found 

that Henderson informed appellant that the guilty plea ―may result in deportation,‖ 

consistent with the admonition required by Article 26.13 of the Texas Code of Criminal 

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (West 2009). Appellant signed 

plea paperwork containing the admonition, and the habeas court relied on its personal 

recollection to find that the judge taking appellant‘s plea ―would not have taken any plea 

where the defendant . . . expressed any doubts as to the consequences of his entering a 

plea of guilty.‖ The habeas court also found that appellant ―made no showing that he 

ever questioned his attorney at the time of the plea regarding any such factors that might 

limit his deportation consequences.‖ Thus, there is no evidence appellant expressed his 

concerns about deportation to the trial court, plea counsel, or anyone else at the time of 

his plea. The habeas court could have rationally believed that immigration consequences 

were not appellant‘s primary concern when pleading guilty ―based upon appellant‘s 

apparent total inaction upon receiving repeated verbal and written warnings about the 

 

5 Torres also stated in his affidavit that appellant‘s eyes were ―red and glassy.‖ 
11

possibility of his deportation.‖ Ex parte Moreno, 2012 WL 3734003, at *5.6 

Appellant cites the case of Ex parte Elizondo-Vasquez, 361 S.W.3d 120 (Tex. 

App.—Texarkana 2011, no pet.). That case presented different circumstances: the court 

of appeals found prejudice when the defendant ―specifically inquired of trial counsel 

about [his immigration status] and the effect his plea would have upon it, as well as 

potential outcomes.‖ Id. at 123. Thus, the Texarkana Court considered evidence that 

immigration consequences were a paramount concern. Similarly, we reject the reasoning 

employed by the San Antonio Court of Appeals in Ex parte Romero, where the court 

reversed the habeas court‘s denial of the writ almost entirely based on the self-serving 

affidavit of the applicant. See 351 S.W.3d 127, 131 (Tex. App.—San Antonio 2011, no 

pet.). As the Austin Court of Appeals noted, the Ex parte Romero decision ―appears to 

have disregarded implied factual findings by the trial court that the applicant‘s testimony 

or affidavit was not credible[;] the case[ is] contrary to well-established precedent 

holding that reviewing courts are to defer to the trial court‘s factual findings and 

credibility determinations.‖ Ex parte Ali, 368 S.W.3d at 841 n.11.

Appellant suggests that a ―probation-eligible defendant charged with a minute 

amount of marijuana would never voluntarily forfeit his entire family and existence in the 

United States to avoid the unlikely maximum six-month jail sentence on a Class B 

misdemeanor.‖ He suggests his situation is ―no different‖ from the decision in Salazar v. 

State, 361 S.W.3d 99 (Tex. App.—Eastland 2011, no pet.). In Salazar, the court of 

appeals reversed the habeas court‘s denial of the writ and held that Salazar could have 

rationally rejected the plea deal of two years deferred adjudication with a $500 fine and 

$1,800 in restitution for theft of property—a state jail felony that carried a maximum 

 

6 We do not hold that reciting the statutory admonishment ―cures‖ prejudice as a matter of law. 

See Ex parte Tanklevskaya, 361 S.W.3d 86, 99 (Tex. App.—Houston [1st Dist.] May 26, 2011, pet. filed) 

(―[U]nder these facts, the trial court‘s statutory admonishment prior to accepting applicant‘s guilty plea 

does not cure the prejudice arising from plea counsel‘s failure to inform applicant that, upon pleading 

guilty, she would be presumptively inadmissible.‖). But a defendant‘s failure to express concerns about 

immigration consequences after receiving repeated warnings may be a factor to consider. See Ex parte 

Moreno, 2012 WL 3734003, at *5.
12

penalty of two years‘ confinement and a $10,000 fine. Id. at 101, 103. Notably, Salazar 

would have risked a penalty greater than appellant had he gone to trial. Further, like 

appellant here, Salazar was eighteen years old at the time of his plea and had lived as a 

lawful permanent resident in the United States for less than five years. Id. at 102–03. He 

had been reared in the United States, and his family was in the United States. Id. at 103. 

However, unlike appellant, Salazar had no criminal record, and there was evidence 

that he had a great deal of community support that would help him seek probation if 

convicted at trial. Id.7 The court also noted that Salazar had a factual defense to the 

crime: ―He believes he is not guilty because he thought the taking of the [property] was a 

prank and that his friend intended to return it.‖ Id. Unlike Salazar, appellant admitted 

that he ―did illegally possess marijuana in this underlying marijuana case,‖ and he 

presented no evidence that he had a legal or factual defense to the crime. Further, the 

habeas court specifically found Officer Torres‘s account of the offense credible.

Giving appropriate deference to the habeas court‘s factual findings, we agree that 

appellant failed to prove that it would have been rational for him to reject the plea deal 

and insist on going to trial. Accordingly, appellant‘s sole issue on appeal is overruled.

CONCLUSION

Having overruled appellant‘s sole issue on appeal, we affirm the habeas court‘s 

order denying the writ.

/s/ Sharon McCally

Justice

Panel consists of Justices Boyce, McCally, and Mirabal.8

Publish — TEX. R. APP. P. 47.2(b).

 

7 On appeal, appellant claims that he would have been eligible for probation if convicted at trial, 

but he did not develop the record in the habeas court concerning the likelihood of obtaining probation 

after a trial.

8

Senior Justice Margaret Garner Mirabal sitting by assignment.