### 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. 03-11-00323- CR

Ex parte Aftab Ali

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F WI LLIAM SO N COUNTY NO. 08- 0465 3-1 , H ONO RAB LE SUZ ANNE B ROO KS , JUDGE P RESIDING

O P I N I O N
Appellant Aftab Ali pleade d g uilty to the offe nse of delivery of drug para pherna lia.
See Tex

. He al t h & Safety Code Ann. § 481.125(b) (West 2010). Punishm ent was assessed at 180 day s in county

jail and a f

ine of $4,000. The trial court suspended imposit ion of t he sente nce and place d Ali on community supervision for 12 months. Subsequently , Ali filed an application for

wr i t o f habea s corpus, alleg ing that his trial counsel was ineffe ctive in failing to war n him of th e immigra tion conseque nces of his g uilty plea. The trial court denied the application. I n a single issue
on appea l, Ali asserts that he is entitled to habe as re lief. We will affirm the tr ial court’s or der.

BACK GR OUND Acc ording to t h e arr est aff idavit in the rec ord, on or about Marc h 28, 2008,

an underc over office r enter ed a co n v en ience store in Taylor and asked Ali, the counter cler k, for a “brow n bag specia l.” Acc ording to the office r, Ali asked him “if that was c urved or

straig ht, meaning the design of the pi pe,” and t hen placed the followin g i t em s in a sm all brown bag : (1) a
g lass pen; (2) small piece s of brillo pad (which, the office r added, wer e “for med to fit theg lass pipe”) ; and (3) a li g hter. The glass p en an d brillo pad, the office r claimed, had been hi dden

behind the counter

. The office r further aver red that Ali then handed him the bag in exchang e for an unspecifie d amount of money . The off icer conclude d:

Your aff iant believes the defe ndant knew th e materia l was drug para pherna lia as evid en t [si c] by knowing the term “brow n bag specia l” as well as conce aling the chea ply made glass pen behind t he counter, not a place a le g itimate writing utensil would be place d for sale, having the brillo f ormed to fit the pipe a

nd conce aling all the i tems behind t he counter. The glass pen is easily converted t o a sm oking pipe. The defe ndant also had knowledg e brillo materia l was neede d with the g lass pipe for inhaling c rac k coca ine into the body

.

Ba sed on the abo v e alleg ations, Ali was char g ed with intentionally or knowing ly delivering drug para

pherna lia to the underc over office r. On Fe bruar y 9, 2009, Ali appea

red in
court with his attorney and pleade d g uilty t o t h e ch arg ed offe nse. Prior to enter ing his plea, Ali
h ad read and signe d written admonishments conce rning the conseque nces of his plea. On e s u ch admonishment was the following : “I f Def endant is not a United States citizen, a plea of ‘GUI L TY’

or ‘NO CONTES T’ to the offe nse char g ed may result in deporta tion, exclusion from admission
to this country , or the denial of natura liz ation under fede ral law.” At the plea hear ing, the trial court asked Ali (1) if he had rea d and signe d the admonitions al o n g wi t h h i s att orney and (2) if he understood his rig hts in the case , including his rig ht to a jury trial. To eac h question, Ali answe red,
“Ye s, ma’am.” The trial court also asked Ali the following : “B y signing these admonishment forms
y ou are indicating to me y ou want to waive y our rig hts, y ou want to enter a plea of g uilty to this char g e and acc ept a plea barg ain ag ree ment. I s that how y ou wish to proce ed? ” Ali answe red, “Ye s, ma’am.” The trial court then acc epted Ali’s g uilty plea, adjudg ed him g uilty , and sentenc ed him as noted above

.
2Approxim ately one y ear later, afte r Ali’s probationar y term had been completed, Ali filed an application for writ of habea s corpus. I n the application, Ali alleg ed that his g uilty plea had been involuntary due to the ineffe ctive assistance of counsel. The trial court denied the application, but this Court, concluding that the trial co u rt h ad n ot considere d the merits of the application

as require d by article 11.072 of the code of crimi n al proce dure, reve rsed and rema nded the

cause for further proce eding s. See Ex parte Ali , No. 03-10-00207- CR, 2010 Tex. App. L EXI S 10018 (Tex. App.—Austin Dec

. 16, 2010, no pet.) (mem. op., not desig nated for publication). Subsequently , the trial court direc ted the parties to file additional aff idavits and to submit proposed finding s of fac t and conclusions of law. T h e evidenc e considere d by the trial court, which we summarize in detail below, included the aff idavits of Ali, Ali’s trial counsel, and Hasibullah Kar im,

a person who had been char g ed with a simil ar offe nse and who had bee n b ee n re prese nted by the same attorney

. After considering the ev i dence , the trial court enter ed its finding s of fac t and conclusions of lawand denie d relief . This appea l followed. 1

STANDARD OF REVIEW
I n revie wing the trial court’s decision to g rant or deny habea s corpus relief , we view the fac ts in the light most favor able to the trial court’s ruling and uphold that ruling absent an abuse of discretion. Ex parte W heele r , 203 S.W .3d 317, 324 (Tex. Crim. App. 2006); Ex parte Karlson , 282 S.W .3d 118, 127 (Tex. A pp.—For t Worth 2009, pet. ref

’d). A trial court abuses its discr etion when it acts without ref

ere nce to any g uiding rules o r p ri nciples or when it acts arbitra rily or

Ali’s brother, Riz wan Ali, was char g ed with a simil ar offe nse, pleade d g uilty , and filed a 1 simil ar application for writ of habea s corpus, which the trial court also denied. Riz wan Ali’s appea l has bee n dockete d separ ately under c ause numbe r 03-11- 00342-CR.

3unrea sonably

. Ex parte W olf , 296 S.W .3d 160, 166 (Tex

. Ap p . — Houston [14t h Dist.] 2009, pet. re f’d)

. To preva il on a post-conviction writ of habeas corpus, the applicant bear s the burden of proving , by a preponde ranc e of the evidenc e, the fac ts that would entitle him to relief. Ex parte Ric hardson , 70 S.W .3d 865, 870 (Tex. Crim. App. 2002). I n habea s corpus proc eeding s, “[v] ir tually ever

y fac t finding involves a cre dibilit y deter mination” and “the fac t finder is the exclusive j u d ge of the cre dibilit y of the witnesses.” Ex parte Mowbray , 943 S.W .2d 461, 465 (Tex. Crim. App. 1996). I n an article 11.072 habea s case , such as the one befor e us, the trial court is the sole finder of

fac t. Ex parte Garcia , 353 S.W .3d 785, 788 (Tex. Crim. App. 2011). “Ther e is le ss le ewa

y in a n article 11.072 context to disreg ard the finding s of a tria l court” than there is in

an article 11.07 habea s case , in which the Court of Criminal Appea ls is the ultimate fac t finder. Id

. Thus, the fa miliar Guzman standard of revie w controls in such ca ses. Id . (citing Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997)). Un d er t h i s standard, the appellate court aff ords almost total defe renc e to a trial court’s fac tual finding s when supported by the rec ord, espec ially when those finding s are based upon cre dibilit y and demea nor. Id

. at 787. Moreove r, “a revie wing
court will defe r to the fac tual finding s of the trial judge even when the evidenc e is submitt ed by aff idavit.” Ex parte Thompson , 153 S.W .3d 416, 425 (Tex. Crim. App. 2005) (citing Manzi v. State , 88 S.W .3d 240, 242-44 (Tex. Crim. App. 2002)). “When the trial co u rt ’s finding s of fac t in a habea s corpus procee ding are supported by the record, they should be acce pted” by the re v i ew ing
court. Ex parte Amezquita , 223 S.W .3d 363, 367 (Tex. Crim. App. 2006) (citing Ex parte Evans , 964 S.W .2d 643, 648 (Tex. Crim. App. 1998); Ex parte Jarrett , 891 S.W .2d 935, 940 (Tex. Crim. App. 1994)). We aff

ord the same amount of defe renc e to the trial co u rt ’s application of the law

4to the fac ts, to the extent that the resolution of the ultimate question turns on an evalua tion

of cre dibilit y and demea

nor. Ex parte Peter

s o n , 117 S.W .3d 804, 819 (Tex. Crim. App. 2003) (per cu ri am ), o verruled in part on other grounds by Ex parte Lewis , 219 S.W .3d 335, 371 (Tex. Crim. App

. 2007). Howeve r, when the fac ts are uncontested and the trial court’s ruling does not turn on the cr edibility or deme anor of witnesses, a de novo revie w by the appellate court is appropria te. Ex parte M artin , 6 S.W .3d 524, 526 (Tex. Crim. App. 1999); see Ex parte Brown , 158 S.W .3d 449, 453 (Tex. Crim. App. 2005).

ANALYSIS
Jurisdi ction As an initial matter, the State contends t h at t h e t rial court lacke d jurisdiction
to co n s i d er Al i ’s habea s application. For a trial court to have jurisdiction to consider a habea s application, among o th e r r e q u ir e me n ts , the applicant must be subject to “conf inement” or “re straint.”
See Ex parte Schmidt , 109 S.W .3d 480, 481-83 (Tex. Crim. App. 2003); Rodriguez v. Court of Appeals , 769 S.W .2d 554, 557-58 (Tex. Crim. App. 1989); see also Tex. Code Crim. Proc. Ann. arts. 11.01, 11.09 (West 2005). The State asser ts that beca

use there is no evidenc e that Ali is the subject of curr ent deporta

tion proce eding s, he has failed to show that he was subject to either “conf inement”
or “r estraint” a s a re sult of his mi sdemea nor convic tion. W e disag ree . The terms “conf

inement” and “re straint , ” for habea s corpus purposes, have been define d broadly

. “Confinement” ref ers “not only to the actua l, corpore al and f orcible de tention of a person, but likewise to any coer cive mea sures by

threa ts, menace s or the fe ar of injury , wher eby

one person ex er ci s es a control over the person of another , and detains him within cer tain limit s.”

5Tex. Code Crim. Proc. Ann. art. 11.21 (West 2005). “Restra int” ref ers to “the kind of control which

one person exer ci s es o v er another , not to confine him within cer tain limit s, but to subject him to the g ener al authority and power of the person claiming such rig ht.” Id

. art. 11.22 (West 2005). “The

wr i t o f h abeas corpus is intended to be applicable to all such case s of confine ment and restra i n t , wher e there is no lawful rig ht in the person exercising the power , or wher e, though t h e p o wer in fac t exis ts, it is exercised in a manner or deg ree not sanctioned by law.” Id

. art. 11.23 (West 2005).
“Conce pts of ‘conf

inement’ and ‘re straint’ encompa ss incar cer ation, rele ase on bail or bond, rele ase

on probation or parole , or any other restra int on ‘per sonal liberty .’” Ex parte Davis , 748 S.W .2d 555, 557 (Tex. App.—Houston [1s t Dist.] 1988, pet. re f’d)

.

Moreove r, the c ompletion of an applicant’ s sentenc e or probationar y term does not deprive the trial court of

jurisdiction if the applicant rema ins subject to collater al leg al conseque nces resulting from his conviction or se ntence

. See Ex parte Renier , 734 S.W .2d 349, 353 (Tex. Crim. App. 1987) (op. on reh’ g ); Ex parte Crosley , 548 S.W

. 2 d 4 0 9 , 4 1 0 (Tex. Crim. App. 1977);
Le v. State , 300 S.W .3d 324, 326-27 (Tex. App.—Houston [14t h Di s t.] 2009, no pet.); State v. Collazo , 264 S.W .3d 121, 126-27 (Tex. A pp.—Houston [1st Dist.] 2007, pet. re f’d) . Collateral leg al conseque nces resulting from a prior misdemeanor con v iction have been define d broadly to include a wide varie ty of detrimental conseque nces. See, e.g. , Le , 300 S.W .3d at 326-27 (dete ntion by immigra

tion officia ls and potential deporta tion); Ex p a r t e W olf , 296 S.W .3d 160, 166-67 (Tex. App.—Houston [14t h Dist.] 2009, p et. ref ’d) (termination of employ ment); Collazo , 264 S.W .3d at 126-27 (denia l of Texas peac e office r’s license) ; Davis , 748 S.W .2d at 556-57 (denia l of entry into milit ary

). Additionally , the collateral l eg al consequence s of a conviction encompass potential conseque nces that have not yet occur red. See, e.g. , Tatum v

. State , 846 S.W .2d 324, 327

6(Tex. Crim. App. 1 9 9 3 ) (“ A judgme nt of conviction for a misdemeanor offe nse may have

detrimental collater al conseque n ce s whether or not probation is completed without a hitch or jail time is actua lly serve d. I f a misdemeanor judgme nt is void, and its exis tence may have detrimental collater al consequence s in some future pr ocee ding, it may be collaterally attacke d, whether or not

a term of probation was succe ssfully s e rved out.” (empha sis added) ); Ex parte Langston , 510 S.W .2d 603, 604 (Tex. Crim. Ap p . 1 9 7 4 ) (hol ding that trial court had jurisdiction to consider habea s application despite applicant having completed his sentenc e beca use “if the conviction rema ins on
t he petitioner’s rec ords, he will continue to be subject to the imposit ion of those collater al lega l
conseque nces which conviction of a felony normally entails”); see also Sibron v. New Y ork , 392 U.S. 40, 57 (1968) (ack n o wledg ing “the obvious fac t of life that most criminal convictions do in fac t entail adver se collater al leg al conseque nces ” an d observing that “it is far better to eliminate the

s o u rc e o f a potential leg al disability than to require the citizen to suffe r the possibly unjustified
conseque nces of the disability itself for an indefinite period of time befor e he can secur e adjudication of the State’s rig ht to impose it on the basis of some past action”) ; Fiswick v. United States , 329 U.S. 211, 2 2 1 -2 3 (1 946) (conc luding that Court had jurisdiction to revie w lawfulne ss of conviction despite fa ct that sentenc e had alre ady been serve d beca use of potential

immigra tion consequenc es of conviction, including being subject to deporta tion and possible difficulty in establishing g ood char acte r for

natura liz ation purposes).
I n Ali’s habea s application, he alleg es that as a result of his conviction, he is “unable to obtain United States citizen s h i p o r P erma nent Resident Alien status and is curr ently subject to remova l proce eding s by the Attorney Gene ral throug h I CE [ I mmigration and Customs Enforc ement].” These alleg ations, wh i ch include the prese nt conseque nce of Ali being unable to

7obtain U.S. citizenship, as well as Ali being “cur rently subject” to deporta tion proce ed i n gs , are undisputed by the State. Also undisputed are statements in Ali’s aff idavit that he has lear

ned that he fac es “possible remova l from this country ” and that, as a result of his plea, he is subject to “potential detention by the immigra tion authorities and automatic deporta tion from the United States.” On this

rec ord, in acc ordanc e with the statutor y p ro v isions and prec edent discussed above, we conclude that the trial court had jurisdiction to consider Ali’s habea s application. See Le , 300 S.W .3d at 326;

see also Tex. Code Crim. Proc. Ann. art. 11.04 (West 2005) (“Eve ry provision rela ting to the writ of habea s corpus shall be mos t favor ably construed in or der to g ive effec t to the remedy , and protect the rig hts of the person seeking relief under it.”); Padilla v. Kentucky , 130 S. Ct. 1473, 1478 (2010) (obser ving that beca

use of chang ing landsca

pe of fede ral immigra tion law, deporta tion or remova l “is now virtually inevitable for a vast number of noncitizens convicted of crimes” ); State v. Jimene z , 987 S.W .2d 886, 888-89 (Tex

. Crim. App. 1999) (“That a gu i l t y plea may result i n deporta tion is
g ener ally considere d a collate ral c onsequenc e.” ( emphasis adde d)). 2

But see Ex parte W

ongjaroen , No. 14-07-00593- CR, 2008 Tex. App. L EXI S 8319, at *8-11 2 n.2 (Tex. App.—Houston [14t h Dist.] Nov. 6, 2008, pet. ref ’d) (substitute mem. op., not desig nated for publication) (questioning whether applicant had s u fficie ntly invoked trial court’s jurisdiction bu t ad d re s s i n g merits of applicant’ s claims “in an abundanc e of caution”)

. The State relies on W ongjaroen in arg uing that the trial court lacke d jurisdiction i n this case . To the extent that W ongjaroen may be applicable here (and s etting aside t he fact t hat i t has no prec edential value as an unpublished opinion), we find the court’s analy sis unpersua sive and contra ry to the statutes and prec edent cited above. We also note that the jurisdictional conce rn raised in W ongjaroen rela ted to the sufficie ncy of the evidenc e in the habea s rec ord rathe r than the leg al question o f wh et her the possibilit y

of depor tation constitutes a collater al leg al conse quence . See id

. at *10 n.2 (“ Her e, appellant has provided no evide nce that her misdemeanor conviction has impacted her immigra tion status.” (e mphasis added) ).

8Ineff

ect ive assistance of counsel
We now proce ed to the merits of Ali’s claim. Ali asser ts that his plea was involuntary due to the failure of counsel to sufficie ntly war n him of t h e immigra tion conseque nces of his
g uilty plea. The test for determining the validi ty of a g uilty plea is “whe ther the plea repre sents a

v oluntary and intelligent choice among the alternative course s of action open to the d ef en d an t

. ” North Carolina v. Alford , 400 U.S

. 2 5, 31 (1970). Where, as here , a defe ndant is repr esente d by counsel during the plea proce ss and enter s his plea upon the advice of counsel, the 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.” McM ann v. Richardson , 397 U.S. 759, 771 (1970). The two-par

t Strickland v. W

ashington test applies to challeng es to g uilty pleas based on ineffe ctive assistance of counsel. Hill v. Lockhart , 474 U.S. 52, 58 (1985); see Strickland , 466 U.S. 668, 687-94 (1984). An appli cant must show (1) that his counsel’s perf ormanc e was defic ient and (2) “that ther e is a ‘re asonable probability ’—one suf ficient to under

mine confide nce in the result—that the ou t co me would have been differ ent but for his counsel’s defic ient perf ormanc e.” Ex parte Chandler , 182 S.W .3d 350, 353 (Tex. Crim. App. 2005) (citing Strickland , 466 U.S. at 694). The applicant has the burde n to prove ineffe ctive assistance of counsel by a preponde ranc e of the evidenc e. Ex parte M artinez , 330 S.W .3d 891, 901 (Tex. Crim. App. 2011) (citing Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999)).

I n the context of g uilty pleas, the first half of the Strickland test is applied in the same

manner as in other contexts. See Hill , 474 U.S. at 58. I n other words, the defe ndant must show that counsel’s advice “fe ll below an objective standard of rea sonablene ss.” Strickland , 466 U.S. at 687-
88. The “pre

judice” require ment, on the other hand, is applied somewhat differ ently

. The focus of

9the prejudice inquiry is “on whether counsel’s constitutionally ineffe ctive perf ormanc e aff

ecte d the
outcome of the plea proce ss.” Hill , 474 U.S. at 59. I n other words, in order to satisfy the “pre judice” require ment, the defendant must show that there is a rea sonable proba bility that, but for counsel’s

err ors, he would not have pleade d g uilty and would have insisted on going to trial. Id

. The Supreme Court has h eld that counsel’s “advic e reg arding deporta tion is
not cate g orica l ly remove d from the ambit of the Six th Amendment rig ht to counsel” and that

“ Strickland applies” to a claim that counsel’s advice reg arding the risk of deporta tion was defic ient.
See Padilla v. Kentucky , 130 S. Ct. 1473, 1481-82 (2010). Acc ording to the Supreme Court, “The 3 weig ht o f p re v ail ing profe ssional norms supports the view that counsel must advise [hi s] client
reg arding the risk of deporta tion.” Id

. at 1482. Howeve r, the extent of counsel’s advice depends on the terms of the rele vant statute. When “the terms of the rele vant immigra tion statute are succinc t, clea r, and expli cit in defining the remova l conseque nce” of a conviction, i.e., the “depor tation
conseque n ce i s t ru l y clea r,” counsel’s advice conce rning the risk of deporta tion must be “equa lly clea r.” Id

. at 1483. On the other hand, “[w]hen the law is not succi n ct and straig htforwa rd

. . . a

cr i m i n al d efense attorney need do no more than advise a noncitizen client that pending criminal char g es may

car ry a risk of a dverse immigra tion consequenc es.” Id

.

Prior to Padilla , many courts, including the Texas Court of Criminal Appea ls, had held that 3 the Six th A mendment rig ht to the eff ective assistance of counsel did not apply to a dvice reg arding the risk of deporta tion, beca use deporta tion was mere ly a “collate ral conseque nce” of a conviction

. See, e.g. , Ex parte Morrow , 952 S.W .2d 530, 536 (Tex. Crim. App. 1997). Howeve r, in Padilla , the Supreme Court explained that beca use deporta tion had “a close connec tion to the criminal proce ss,” the “collate ral versus direc t distinction” is “ill-suited to evalua ting a Strickland claim conce rning the specific risk of depor

tation.” 130 S. Ct. 1473, 1482 (2010). 10The remova l statute at issue in this case , as was at i s s u e i n Padilla , provides in

rele vant part that “[a]ny alien who at any time a fter admission ha s been convicted of a violation of (or a conspirac y or attempt to violate) any law or reg ulation of a State, the United States, or a fore ign country rela ting to a controlled substance (as define d in section 102 of the Controlled Substances Act (2 1 U.S.C. 802)), other than a single offe nse i nvolving possession for one’s own use o f 3 0 gra m s or l ess of marijuana , is deportable.” 8 U.S.C. § 1227(a) (2)( B) (i). As the S upreme Court noted i n Padilla , “virtually ever

y drug offe nse except for only the most insignifica nt marijuana offe nses” is

a deporta ble offe nse under this statute. 130 S. Ct. at 1477 n.1. Neve rtheless, the State contends on
appea l that “it is unclea r” whether the offe nse to which Ali pleade d g uilty , d elivery of drug
para pherna lia, is actua lly a crime “re lating to a controlled substa n ce . ” T h u s, in the S tate’s view, 4
defe nse counsel “had no duty to convey to [Ali ] that his plea of g uilty would make him ‘depor table’ under fede ral immigra tion law; defe nse counsel only neede d to convey that a conviction ‘may car ry

a ri s k o f adver se immigra tion conseque nces’ to comply with Padilla .” Additionally , the Stat e observe s that at the time of Ali’s g uilty plea in 2009, Padilla had not been decide d. I t is an open question whether Padilla applies re troac tively

. 5

We note that a person commits the offe nse of delivery of drug para pherna lia “if the person 4 knowing ly or intentionally delivers

. . . drug para pherna l i a k n o wi n g that the person who rec eives or who is intended to rec eive the drug para pherna lia intends that it be used to p lant, propag ate, cultivate, g row, harve st, manufa cture , compound, conver t, produce , proce ss, prepa re, test, analy

ze, pack, repa ck, store, contain, or conce al a controlled substance in violation of this chapte r or to inject, inge st, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapte r.” Te x . Hea lth & Safe ty Code Ann. § 481.125(b) (West 2010) (empha sis added). At least two Texas intermediate appella t e courts have held that Padilla applies 5 retroa ctively

. See Ex parte De Los R ey es , 3 5 0 S.W .3d 723, 729 (Tex. App.—El Paso 2011, pet. g rante d); Ex parte Tanklevsk aya , No. 01-10-00627- CR, 2011 Tex. App. L EXI S 4034, at *12-19 (Tex. App.—Houston [1st Dist.] May 26, 2011, pet. filed) (op., desig nated for publ i ca t i o n). Howeve r, fede ral circ uit courts are split on the issue. Compare, e.g. , United States v. Orocio , 11We need not decide today , howeve r, whether Padilla applies retroa ctively and, if so,

whether counsel’s advice to Ali was defic ient. I nstead, we can decide this case on the second prong of the Strickland inquiry , prejudice

. See 466 U.S. at 697 (“[T]here is no rea son for a court deciding

an ineffe ctive assi s t ance claim to approa ch the inquiry in the same order or even to addre ss both components of the inquiry if the defendant makes an ins ufficie nt showing on one. I n particula r, a
court need not deter

mine whether counsel’s p er formance was defic ient befor e examining the prejudice suffe red by the defe ndant as a result of the alleg ed defic iencies.

. . . I f it is easie r to dispose of an ineffe ctiveness claim on the g round of lack of sufficie nt prejudice , which we expect will often be so, that course should be followed.” ). Even assuming that Padilla applies retroa ctively to this

case , Padilla did not chang e the standard for proving prejudice

. See 130 S. Ct. at 1487 (“Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice

. . . a question we do
not rea ch beca

use it was not passed on below.”)

. Ali still had a burden to prove, by a preponde ranc e of the evidenc e, that there is a rea sonable probability that, but for counsel’ s ad v i ce, he would not have pleade d g uilty and would have insisted on g oin g t o t ri al

. See Hill , 474 U.S. at 59. Stated another way , he “must convince the court that a decision to reje ct the plea barg ain would have been rational under the circ umstances.” Padilla , 130 S. Ct. at 1473 (citing Roe v. Flores-Ortega , 528 U.S. 470, 480, 486 (2000))

. “Surmounting Strickland ’s hig h bar is neve r an e asy task,” a nd “it is often quite difficult for petitioners who have acknow ledg ed their g uilt to satisfy Strickland ’s prejudice

645 F.3d 630, 641 (3d Cir. 2011) (holding that Padilla applies retroa ctively ) w i t h Uni ted States v. Chang Hong , 671 F.3d 1147, 2011 U.S. App. L EXI S 18034, at *15-34 (10th Cir. 2011) (holding that Padilla announce d a new rule of constitutional law and thu s d o es not apply retroa ctively ) and Chaidez v. United States , 655 F.3d 684, 687- 94 (7th Cir. 2011) (same ). 12prong .” Id

. at 1485 & n.12. The Texas Court of Criminal Appea ls has further ex p l ai n ed t he

prejudice inquiry

in plea ca ses as follows:

I n the ineffe cti v e as s i stance of counsel context, the narr owed prejudice inquiry is d es i gn ed t o 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: “counse l’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 demonstrate that but for counsel’s defic ient perf ormanc e, he would have [availed himself of that proce eding ], counsel’s defic ient perf ormanc e has not deprive d him of any thing, a nd he is not entitled to relief.”

Johnson v. State , 169 S.W .3d 223, 231-32 (Tex. Crim. App. 2005) (quoting Flores-Ortega , 528 U.S.
at 484). “The test is objective; it turns on what a rea sonable person in the defe ndant’s shoes would

6
do.” United States v. Smith , 844 F.2d 203, 209 ( 5th Cir. 1988) (citing Hill , 474 U.S. at 60).

I n deter mining whether an applicant would not have pleade d g uilty but for counsel’s defic ient advice , a court is to consider “the circ umstances surrounding the plea and the g ravity of the misrepre sentation material to that deter mination.” Ex parte Moody , 991 S.W .2d 856, 858 (Tex. Crim. App. 1999). “Eve n when a defe ndant wholly relies upon err oneous advice of counsel, the mag nitude of the err or as it conce rns the conseque nces of the plea is a rele vant fac tor; not ever y relianc e on err oneous advice is sufficie nt to justify rende ring the plea vulnera ble to collater al attack.” Id

. We there fore proce ed to revie w the circ umstances surrounding Ali’s plea in light of the evidenc e
prese nted to the trial cour t.
I n Ali’s aff

idavit, he explained that his family is from Pakistan and that they
ent er ed t h e Uni ted States in 1995, when Ali was ten y ear s old. Acc ording to Ali, he attended

I n this case, the “ proce eding in question” is a jury trial. 6 13elemen t ar y school, junior high, and hi g h school in the Unit ed S tates and g raduated from Austin’s

Westlake Hig h School.

Ali aver red that he had met with counsel two times pri o r t o p leading g uilty

. Ali claimed that at the first meeting , he told counsel that he was not a leg al perma nent resident, that he had a pending application for leg al perma nent residenc y as a b en ef i ci ar y of his fathe r’s approve d immigra nt worke r petit ion, and that “it was im portant t hat I not be deported.” Ali further aver red that at the second meeting , counsel had informed him “that the prosec ut i o n h ad made a g ood plea of fer ” and that Ali “should acc ept t he offer to conclude the case.” Acc ording to Ali, counsel also advised Ali that if he “ac cepte d the prosec utor’s offe r and pleade d g uilty ,” he “would not fac e
any immigra tion problems.” Ali explained,
[C ounsel] said that immigra tion problems would arise if I wer e to plead guilty to a fe l o n y or if I rec eived a sentenc e of imprisonment that was in excess of one y ea r. Since the prosec utor offe red me a deal to plead g uilty to a misdemeanor offe nse with a sentenc e of less than one y ear , [counse l ] s ai d I wo uld not have any immigra tion problems.

Ali also claimed that at no time did counsel rec ommend to him that he should contac t an experience d immigra tion lawy er to a ssist hi m with his case.

Acc ording to Ali, he would not have pleade d g uilty if he had known the immigra tion
conseque nces of

his plea. He claimed,

Had I known that my plea would subject me to potential detention by the immigra tion authorities and automatic deporta tion from the United States and that I would never ag ain be able to return to the United States to live with my family and to be near my family , Iwould never

have a g ree d to this pl ea a g ree ment.

14Ali added that his pare nts and two y oung er brothers are leg al perma nent residents and that “it would be a g rea t hardship for all of us if I wer e to be remove d to Pakistan.” Ali provided no evidenc e other than his aff

idavit to support his assertions. Trial counsel, in his aff

idavit, provided a differ ent acc ount of the circ umstances surrounding Ali’s plea. First, counsel provided detailed information on his backg round as an attorney

. Counsel has prac ticed criminal law since 1989, is a former prosec utor, and has prac ticed criminal defe nse for “the better part of the past 20 y ear s.” Counsel a verr ed that since 2006, he has held the position of “g ener al counsel fo r t h e Greater Austin Merc hants Association (GAMA) ,

an association of 350 convenie nce store owner s in and around Austin who are of P ak i n s t an i and Hindu orig in.” Counsel explained his posit ion and experienc e as f ollows:
Represe nting Pakistani and I ndian store owner s and their families almost exclusively since 2006, I am very familiar with their i ssues involvin g immigra tion, their st atus as citizens, perma

nent residents, apply ing for citizenship, student and work visas, and other immigra tion issues that may affect them and their families. Howeve r, I do not prac tice immigra tion law. I am a trial attorney and I alway s advise my GAMA clients to seek the advice of competent i mmigra tion attorney s reg arding their immigra tion issues. Almost all of my clients that have emig rate d from Pakistan or I ndia alre ady have immigra tion lawy ers that helped them and their families make the move to the United States.

Counsel next descr ibed his knowledg e of the circ umstances surrounding this case . He explained that in 2008, “a task forc e involving the Wi l l i am s o n C ounty Sheriff’ s Offic e, Geor g etown Police Depa rtment, Round Rock Police Depa rtment, Cedar Park Police Depa rtment , Au stin Police Depa

rtment, the Texas Depa rtment of Public Safety , and the Depa rtmen t o f Homeland Security made a larg e swee p of convenie nce stores in Wil lia m s o n and Travis County

. They conducte d a complex investigation involving store owner s and/or employ ees who wer e selling

15drug para

pherna lia from their stores.” Counsel rec al led that approximately eig ht of the GAMA
stores wer e involved in the raid, that arr ests wer e made that included both felony and misdemeanor char g es, and tha t his clients included both Ali and his brother Rizwan.

Acc ording to counsel, he discussed the case with both brothers “on many occa sions.” The discussions included “eve ry aspec t of the case s, including the streng ths and weaknesses of the State’s case s, as well as the potential immigra tion pr oblems in the event they wer e convicted.” Counsel also aver

red that he revie wed the State’s evidenc e with the brot h er s , i n cludi ng video

rec ording s of the “buy s” by the underc over office rs. I n his aff idavit, counsel summarized the revie w of the e vidence as follows:

The office r had video and audio reco rdi ng device s attache d to his person and h e entered the store for the purpose of buy ing the contra band. The videos s h o w the office r moving from aisle to aisle and ultimately approa ching t h e counter wher e Applicants (both Applicants in two separ ate v i d eos with virtually identical fac t s ) we re working

. The office r asked for a “brow n bag specia l.” Wit hout being questioned by Applicant what the office r meant by “brow n bag ,” Applicants produce d a brown paper bag and in it they place d a g lass pipe capa ble of being used to smoke tobacc o or some other sub s t an ce , a l ighte r, and a piece of Br illo Pad, a scre en which c ould be used to catch the burnt a shes in the device

. The video a

nd audio in both vide os clea rly showed both br others responding to the reque sts made by the underc over office r and it was appar ent to both brothers and me from viewing of the tapes that they wer e under no mistaken impression that they wer e producing items that constituted drug para pherna lia. We also examined the video of larg e sums of cash loose on the shelves b el ow the counter , scale s, pipe clea ning items, 1x 1 Z iploc bag g ies, and other items that could easily be construed as drug para pherna lia.

Counsel fu rther aver

red that the brothers’ defe nse to the char g es was that “they did not know that the pipe and other items w ere g oing to be used for an illega l pur pose.” Counsel explained, “The y tried to convince me of this [and] I explained to them that wh i l e I b elieved

16them, what I believed wa s n o t i m portant. We discussed at leng th whether or not a jury in

Wil liamson County was g oing to believe them.

. . .” Counsel a dded, “While the y maintained their innoc ence to me privately , they acknow ledg ed that the evidenc e ag ainst them was overw helming a n d that it was virtually

cer tain that they

would not be believe d.”
Acc ording to c o unsel, he did discuss “possible immigra tion issues” with the brothers, althoug h he did not specify the issues that he discussed. Counsel rec alled, “Applica nt and his brother and I discussed the problems they would have pleading to this case or otherwise having a conviction

on their rec ords beca

use of the possible immigra tion issues. I discussed this with both brothers and
I also discussed it with their fathe r. I discussed it with them as a g roup (with their fathe r) and with their fathe r separ ately .” Counsel also claimed that “af ter viewing the videotapes, the brothers told 7 me they went to see their immigra tion attorney .” Counsel continued, “B oth brothers conclude d that it was not likely that t h ey wer e
g oing to preva il at t rial, as the pol ice had them on video and au d i o t ap e co m mitti ng the offenses.”
Acc ording to counsel, Ali decide d he wanted to take the plea offe r while Ali’s brother wanted to g o
to trial. Howeve r, Ali chang ed his mind afte r enter ing his ple a at a court appea ranc e on J anuar

y 5, 2009. Counsel aver

red that the trial court allowed Ali to withdraw his plea a nd discuss the matter further with his brother and counsel. Counsel explained that their subsequent discussions included “the streng ths and wea

knesses of the State’s case ,” “the prese nce of all the drug para pherna lia seized

Counsel added that on at least one occa sion, he had a “group discussion” with 7 “appr ox imately six separ ate defe ndants” reg arding “the potential prob l em s with their individual immigra tion statuses.” Howeve r, coun s e l a c k n o wledg ed that his “file notes do not clea rly ref lect that the brother s were prese nt during this group disc ussion.” 17at the scene ,” “the impending trial date,” and “the likelihood of a convic t i o n an d a m o re [severe]

punishment being assessed tha n what wa s curr ently

beingoffe red.” Counsel added, 8
[W ]e also discussed ag ain [] at leng th the possible difficulty with their immigra tion. I t wa s o b v ious that both brothers wer e torn beca use while they maintained their innocenc e, they knew it was virtually cer tain they woul d be convicted by a Wil liamson Count y jury

. Howeve r, t hey did not want to do the 30 day s in jail and they did not know for cer tain what the conseque nces w o uld be with reg ard to their immigra tion. Ag ain, I instructed them to consult with their immigra tion lawy er and they told me they

did consult with him

.

“Af ter c onsidering the m atter at leng th,” counsel continued, “both br others dec ided they wanted a trial.” Howeve r, on the date of trial, Ali and his brother chang ed their minds and decide d to acc ept the plea of

fer . I n his affida vit, counsel conc luded,

Prior to enter ing the plea, both brothers went over their rig hts and their waiver s with me in de tail and this included the spec ific admonition that if the def endant wa s not a United States citizen, a plea of g uilty or no contest to a criminal char g e may result in d e p o r tation, exclusion of admission to the United States, or denial of natura liz ation under f eder al law.

I n addition to the aff

idavits of counsel and Ali, the trial court also cons i d er ed the aff idavit of Hasibullah Kar im. Kar im was ini t i al l y char g ed in the sting opera tion and was also
repr esente d by Ali’s counsel. Kari m , wh o i s from Afg hanistan, aver red that counsel “wa s very 9

car eful when he discussed my case with me privately to tell me that any ty pe of criminal conviction could possibly result in adver se conseque nces with reg ard to my immigra tion status.” Kar im further

The offe r, acc ording to counsel, “wa s 30 d ay s in jail as a condition of probation, plus 8 12 months in j ail probate d for 12 months.” Acc ord i n g to Kar im, his case was eventua lly dismiss ed beca use “the office rs made a 9 mistake in identify ing me as a pe rson who committed the off ense.” 18aver

red that he was with counsel and the Ali brothers when counsel revie wed the videotape evidenc e in their case s. Acc ording to Kar im, “the two brot h er s we re the same persons videotaped in their sting ope rations.” Ka

rim added,

I was prese nt when [counsel] discussed the streng ths and the wea knesses of t h e State’s case s ag ainst me and the two brothers. Whil e the case ag ainst me was weak, it was obvious to me that the evidenc e ag ainst the brothers was very strong

. During this conver sation, I was pre sent when [counsel] told us (mostly the brothers) about the problems we would have with our immigra tion status if there wa s any ty pe of a criminal conviction. [C ounsel] was very clea r to us that he was not an immigra tion lawy er and h e ad v i sed us that we should seek advice from our own immigra tion attorney s to advise us of our rig hts in the event we pleade d g uilty or if we wer e found g uilty by a judg e or jury

.

I n its finding s of fact and conclusions of law, the trial court made express findings
reg arding the cre dibilit y of the aff iants. The court stated that it “has known [counsel] as a criminal d ef en s e attorney for many y ear s,” and that it had found counsel’s aff idavit to be “cred i b l e, reliable and an acc urate depiction of the events that occur red with Def

endant.” The trial court also found that Kar im’s aff

idavit “cor

robora ted counsel’s acc ount of the events.” The trial court added, “Upon revie w of the aff idavits provided by the parties to this case , this Court conclude s that the rendition of fac ts and events descr ibed by [counsel] and Mr. Kar im is cre dible, trust wo rt hy , and is corr oborate d by the C ourt’s own rec ollection of events.” On t he o t h er h an d , t he trial court “spec ifically disbelieve[d] the alleg ations conta in e d in A p p li c a n t’ s a f f id a v it p u r p o r ti n g th a t [counse l] failed to communicate the possibili ty of immigra tion conseque nces as a result of Def endant’ s plea.” Many of the trial court’s co n cl u s i o ns focuse d on the first prong of the Strickland inquiry

. Howeve r, in addition to concluding that counse l ’s p erformanc e was not defic ient, the

19trial court a lso concluded tha t Ali failed to show pre judice. Specif

ically , the trial cour

t concluded that,
[G] iven the benef its Applicant obtained by virtue of his plea barg ain with the State, including the initial pursuit of on l y a C l as s A misdemeanor and the neg otiated plea barg ain [t hat] was imposed and that Applicant twice enter ed a plea of g uilty , this Court conclude s that Applicant has failed to adequ at el y demonstrate that but for [counsel’s] perc eived ineffe ctive assistance , Applicant would have insisted on a jury trial. Thus, Applicant has also failed to suf ficiently establish that the sec ond prong of Strickland

has bee n violated by

[counsel]

.
The trial court a lso concluded tha t “Applicant has prese nted no cre dible evidenc e that he has been harme d based on the alleg ed attorney violations of [counsel] .” Finally , the trial court conclude d that “Applica nt’s contentions in his Application for Writ of Habe as Corpus are wholly without merit, that Applicant rec eived eff

ective assistance of counsel, that Applicant has rec eived the benef it of his plea barg ain, and that Applica nt has suffe red no ha

rm as a r esult of his plea.”
We cannot co n cl u d e on this rec ord that the trial court abused its discretion in deny ing Ali’s habea s application. Ag ain, t o be entitl ed to relief , Ali neede d to convince the cour t that a decision to reje ct the plea barg ain and g o to trial would have been “rational under the circ umstances.” Padilla , 130 S. Ct. at 1473. The circ umstances of this case , as summarized above, included evidenc e of Ali’s g uilt that was, in the words of counsel and Kar im, “over whelming ” and
“ver y strong .” This e vidence included video and audio rec ording s “cle arly show[ing]” Ali and his brother delivering drug para p h er n al i a t o an undercove r officer. The video rec ording also showed larg e s u m s of cash loose on the shelves below the counter , scale s, pipe clea ning items, Z iploc bag g ies, and other items that, in counsel’s view, “could easily be construed as drug para pherna lia.” The brothers’ planned defe nse to the crime, acc ording to counsel, was that “they did not know that

20the pi pe and other items wer e g oing to be used for an illeg al purpose.” Howeve r, counse l aver red that “it was appar ent to both brothers and me from viewing of the t ap es t h at t h ey wer e under no mistaken impression that they wer e producing items that constituted drug para pherna lia.” Counsel further aver

red that, “While they maintained their innocenc e to m e p ri v ately , they acknow ledg ed that the evidenc e ag ainst them was overwhelming and that it was virtually cer tain that they

would
not be believed” by a Wil liamson County jury

. Counsel added, “B oth brothers conclude d t h at it

was not likely that they wer e g oing to preva il at trial, as the police had them on video and audiotape committing the offe nses.” Thus, if Ali had reje cted the plea o ff er , go n e to trial, and been convicted—w hich Ali knew was “virtually cer tain,” acc ordi ng to counsel—he would have risked the same deporta tion conseque nces and, in addition, could have been sentenc ed to up to one full y ear of act u al jail time. See Tex. Penal Code Ann. § 12.21 (West 2011). I n light of this and other evidenc e, the trial court could have rea sonably conclude d that it would not have been rational under the circ umstances for Ali to reje ct the plea barg ain and g o to trial. S ee Hi l l , 4 7 4 U.S at 59 (explaining that prejudic e in q u ir y in p le a - b a

r g a in c a s es includes examination of likelihood of succe ss
at t ri al ); Pilla v. United States , 668 F.3d 368, 373 (6th Cir. 2012) (consider ing “over whelmin g evidenc e of g uilt” in concluding that “no rational defe ndant in [applicant’s] position would have
proce eded to tria l”). 1 0

We also observe that the rec ord supports a fi n d i n g b y the trial court that this was not a 1 0 case i n wh i ch Al i was uninformed of the immigra tion conseque nces of his g uilty plea. Counsel aver red that he discussed “possible immigra tion issues” with Ali on multipl e occa sions and that Ali had informed him that he had spoken with an immigra tion attorney pri or to pleading g uilty

. Additionally , it is undisputed that Ali rea d and signe d an admonishment stating, “I f Def endant is not a United States citizen, a plea of ‘GUI L TY’ or ‘NO CONTEST’ to the offe nse char g ed may result i n deporta tion, exclusion from admission to this country , or the denial of natura liz ation u n d er fede ral law.” Thus, even assuming that counsel’s advice was not as explicit as Padilla require s it 21T h e o n l y evidenc e that Ali prese nted which tended to show that he would have

insisted on g oing to trial are statements in his aff idavit to that eff

ect. However, the trial court would not have a

bused its discretion in disbelieving these stateme nts. See, e.g. , Shanklin v. State , 190 S.W .3d 154, 167 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, improvide ntly granted , 211 S.W .3d 315 (Tex. Crim. App. 2007) (“The trial court is not require d to believe fac tual
statements contained within an aff idavit, e ven when they are uncontra dicted by other aff idavits.”); Dusenbe rry v. State , 915 S.W .2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref ’d) (“The
court may consider the interest and bias of any witness and is not require d to acc ept as t ru e the testimony of the acc used or any defe nse witness simply beca use it was uncontra dicted.”)

. Her e, the trial court expressly found that Ali provided “no cre dible evidenc e” that he was harme d by counsel’s alleg edly defic ient perf

ormanc e, and we are to defe r t o the t rial co u rt ’s credibilit y deter mination.
See Thompson , 153 S.W .3d at 425; Manzi , 88 S.W .3d at 242-44; see also Ex parte Hamad , No. 05-11-01599- CR, 2012 Tex. App. L EXI S 1496, a t *13-15 (Te x . App.—Dallas F eb. 27, 2012,

no pet. h.) (op., not desig nated for publication) (“[A]ppellant’s ability to show he suffe red prejudice arising from co u n s el’s deficient advice depends critica lly upon his cre dibilit y . . . . The trial court adjudg ed appellant’ s aff

idavit aver

ments to be not cre dible.

. . . Wit hout cre dible ev i d en ce that appellant would have insisted on a trial had counsel advised him he would be deporte d if he enter ed

a g uilty plea, we cannot conclude appellant met his burden under the second prong of the Strickland standard f or proving ineffe ctive assistanc e of counsel.” ); Ex parte Victorio , No. 05-11-01008- CR,
2012 Tex. App. L EXI S 819, at *14-16 (Tex. App.—Dallas Fe b. 1, 20 1 2 , p et

. fi l ed) (op.,

to be, the trial court would not have abused its discretion in fi n d i n g the alleg edly defic ient perf ormanc e har

mless under the pa

rticular c ircumstance s of this case.

22not desig nated for publication) (def err ing to trial court’s cre dibilit y deter mination in concluding that applicant suffe red no prej u dice) ; Ex parte Tovilla , No. 14-10-01120- CR, 2012 Tex. App. L EXI S 240, at *7-8 (Tex. App.—Houston [14t h Dist.] J an. 12, 2012, pet. ref ’d) (mem. op., not desig nated for publica tion) (same)

. 1 1

Viewing the above evidenc e in the light most favor able to the tri al co u rt ’s ruling , and deferr ing to the t rial court’s cre dibilit y deter m i n ations as we should, we cannot conclude t hat the trial court abused its discretion in denying Ali’s habea s application on the g round that Ali failed
t o p rove by a preponde ranc e of the evidenc e that but for counsel’s alleg edly defic ient adv i ce , he would not have pleade d g uilty and would h av e i nsisted on g oing to trial. We overr ule Ali’s sole issue.

But see Ex parte Romero , 351 S.W .3d 127, 131 (Tex. App.—San Antonio 2011, no pet.); 1 1 Ex parte De Los Rey es , 350 S.W .3d 723, 731 (Tex. App.—El Paso 2011, p et

. g rante d); Ex parte Tanklevsk aya , No. 01-10-00627- CR, 2011 Tex. App. L EXI S 4034, at *29-33 (Tex. App.—Houston [1st Dist.] May 26, 2011, pet. filed) (op., desig nated for publication). I n these case s, one of which Ali cites in his brief ( Tanklevsk aya ), the revie wing courts reve rsed trial court order s deny ing habea s relief on the basis that the applicant either testified or aver red that he or she would not have pleade d g uilty but for counsel’s defic ient advice

. We a re not pe rsuade d that we should follow these ca ses. To t h e ex t ent that the revie wing court in eac h case appea rs to have disreg arde d implied fac tual finding s by the trial court that the applicant’ s testimony or aff idavit w as not c redible, the case s are contra ry to well-e stablished prec edent holding that revie wing courts are to defe r to the trial court’s fac tual finding s and cre dibilit y deter minations. See, e.g. , Ex parte Amezquita , 223 S.W .3d 363, 367 (Tex. Crim. App. 2006); Ex parte Thompson , 153 S.W .3d 416, 425 (Tex. Crim. App. 2005); Ex parte Mowbray , 943 S.W .2d 461, 465 (Tex. Crim. App. 1996). Moreo v er , i n eac h case , the revie wing court appea

rs not to have undertaken an analy sis of whether the deci s i o n t o re j ect the plea barg ain and g o to trial was “rational under the circ umstances” o f ea ch case . I nstead, the revie wing court appea

rs to have simply acc epted as true the statements in the applicant’ s testimony or af fidavit. We decline to a dopt such an a pproac h. 23CONCLUSION We affir m the trial court’ s order

.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose
Affir med Filed: May

17, 2012 Publis h

24