1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-17-00336-CR

____________________

EX PARTE GABRIEL GUTIERREZ

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Cause No. 09-03-02725-CR

MEMORANDUM OPINION

Appellant Gabriel Gutierrez appeals the ruling on his post-conviction 

application for writ of habeas corpus, which requested that his conviction be vacated 

on the grounds of ineffective assistance of counsel. The trial court denied Gutierrez 

a hearing and denied his requested habeas relief. We affirm.

Background Information

Gutierrez was stopped by a deputy of the Montgomery County Sheriff’s 

Office on the night of December 31, 2008, on a report of a possibly intoxicated driver 

and because law enforcement officers observed him driving erratically. Gutierrez 

was arrested for driving while intoxicated. While searching Gutierrez during 
2

booking, a deputy found two small bags of a white substance that field-tested 

positive for cocaine, and Gutierrez was charged with bringing a controlled substance 

into a correctional facility. 

On March 17, 2009, a grand jury indicted Gutierrez for possession of a 

controlled substance. See Tex. Health & Safety Code Ann. § 481.115 (West 2017).1

In July of 2010, Gutierrez pleaded guilty to the offense charged and also signed a 

waiver of preservation of evidence that included an order for the destruction of 

evidence. On July 2, 2010, the trial court found Gutierrez guilty of the offense 

charged, assessed punishment at confinement in state jail for two years and imposed 

a fine of $1500, and certified Gutierrez’s right of appeal. The trial court also 

suspended imposition of the sentence and placed Gutierrez on community 

supervision for a period of three years. On August 15, 2012, the trial court signed an 

order terminating Gutierrez’s community supervision. 

On June 7, 2017, Gutierrez filed an application for writ of habeas corpus 

pursuant to article 11.072 of the Texas Code of Criminal Procedure seeking to vacate 

his 2010 conviction for possession of a controlled substance. See Tex. Code Crim. 

Proc. Ann. art. 11.072 (West 2015). Gutierrez’s application argued that he suffered 

 

1 We cite to the current version of statutes as subsequent amendments do not 

affect our disposition.
3

adverse collateral legal consequences due to his conviction, specifically that his 

deportation was “virtually certain” because he is not eligible for cancellation of 

removal. Gutierrez also argued that his trial counsel failed to advise him that his 

conviction pursuant to a guilty plea would result in deportation. Gutierrez’s brief in 

support of his application explains that he is ineligible for cancellation of removal 

because he cannot satisfy the seven-year continual residency requirement of the 

Immigration and Nationality Act. See 8 U.S.C.S. § 1229b(a)(2) (2007). Gutierrez 

argued that had he known he was statutorily ineligible for cancellation of removal 

or any other relief from the immigration court, and that consequently deportation 

would be a “virtual certainty,” he would not have pleaded guilty to the drug charge. 

Gutierrez also argued that he received ineffective assistance because his trial counsel 

failed to adequately advise him “of the gravity of the immigration consequences” of 

his guilty plea and failed to advise him of possible alternatives to pleading guilty. 

On August 7, 2017, the trial court denied Gutierrez’s application and also 

entered findings of fact and conclusions of law. Therein, the trial court found, in 

relevant part, Gutierrez’s affidavit was not credible, the affidavit of Gutierrez’s trial 

counsel was credible, that Gutierrez’s trial counsel had advised him that his guilty 

plea would subject him to deportation, that Gutierrez’s guilty plea was knowing and 

voluntary, that Gutierrez had provided no explanation for waiting seven years to file 
4

his application for writ of habeas corpus, and that the controlled substance for which 

Gutierrez had been charged had been destroyed pursuant to the trial court’s order. 

The trial court concluded that (1) there were no previously unresolved issues of fact 

material to Gutierrez’s conviction and sentence and, therefore, no evidentiary 

hearing was required; (2) Gutierrez failed to establish that his plea was involuntary 

due to the ineffective assistance of counsel; and (3) the doctrine of laches barred 

Gutierrez’s claim for relief. Gutierrez filed a notice of appeal. 

Issues

Appellant raises three issues on appeal. In his first issue, Appellant argues that 

the trial court erred in concluding that his claim for relief was barred by laches. 

Appellant’s second issue argues that he did not receive effective assistance of 

counsel because his trial counsel did not advise him that his guilty plea would result 

in certain deportation. And, Appellant’s third issue argues that the trial court erred 

in failing to hold an evidentiary hearing on his application for writ of habeas. 

Standard of Review

A defendant convicted and ordered to community supervision may attack the 

validity of the conviction by way of habeas corpus if he is either (1) confined or 

restrained as a result of a judgment of conviction ordering community supervision, 

or (2) is no longer confined, but is subject to collateral legal consequences resulting 
5

from the conviction. See Tex. Code Crim. Proc. Ann. art. 11.072, 11.21, 11.22 (West 

2015). We have jurisdiction to review the denial of Gutierrez’s article 11.072 habeas 

application because Gutierrez’s application claims that he is subject to collateral 

legal consequences, namely deportation or removal, and not eligible for cancellation 

of removal, as a result of his guilty plea and conviction. See Ex parte Ali, 368 S.W.3d 

827, 831-33 (Tex. App.—Austin 2012, pet. ref’d) (considering habeas application, 

even after applicant completed his community supervision sentence, based on 

collateral legal consequences of applicant’s inability to obtain citizenship or 

permanent resident alien status and risk of removal proceedings).

We review the denial of habeas corpus relief under an abuse-of-discretion 

standard and consider the facts in the light most favorable to the habeas court’s 

ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An 

applicant seeking post-conviction habeas corpus relief bears the burden of 

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

Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Richardson, 

70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We afford almost complete deference 

to the habeas court’s determination of historical facts supported by the record, 

especially when those factual findings rely upon an evaluation of credibility and 

demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297 (Tex. App.—Houston [14th Dist.] 
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2003, no pet.). We apply the same deference in reviewing the habeas court’s 

application of law to fact questions, if the resolution of those determinations rests 

upon an evaluation of credibility and demeanor; if the outcome of those ultimate 

questions turns upon an application of legal standards, we review the habeas court’s 

determination de novo. Id.

The test for whether the trial court abused its discretion is whether its ruling 

was arbitrary or unreasonable, and the mere fact that a trial court may decide a matter 

within its discretionary authority in a different manner than an appellate court would 

in a similar circumstance does not demonstrate that an abuse of discretion occurred. 

Ex parte Uribe, 516 S.W.3d 658, 665 (Tex. App.—Fort Worth 2017, pet. ref’d). We 

will only overrule the trial court’s ruling on an application for a writ of habeas corpus 

if the court’s ruling was outside the zone of reasonable disagreement. Id.; Ex parte 

Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet. ref’d) (op. on reh’g)

(“[A]bsent an abuse of discretion, we must affirm a habeas court’s decision on 

whether to grant the relief requested in a habeas corpus application.”).

Laches

Appellant’s first issue argues that the trial court erred in ruling that the 

doctrine of laches barred his claim for relief. According to Appellant, a trial court 

cannot rule on a laches defense without conducting a hearing because laches is a 
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fact-sensitive inquiry. Appellant also argues that the mere passage of time is not 

sufficient to invoke laches and that the trial court failed to analyze whether 

Appellant’s seven-year delay was unreasonable, whether it was due to neglect, and 

whether it prejudiced the State. 

The doctrine of laches is appropriate for application in the context of an 

application for writ of habeas corpus, as laches is an equitable common-law doctrine 

and habeas corpus is an equitable remedy. See Ex parte Carrio, 992 S.W.2d 486, 

487-88 (Tex. Crim. App. 1999). In determining whether laches bars a claim, a court 

makes a case-by-case inquiry to determine whether equitable relief is warranted by 

the circumstances of the case. See Ex parte Perez, 398 S.W.3d 206, 216-17 (Tex. 

Crim. App. 2013) (citing Holland v. Florida, 560 U.S. 631, 649-50 (2010); Baggett 

v. Bullitt, 377 U.S. 360, 375 (1964); Holmberg v. Armbrecht, 327 U.S. 392, 396 

(1946)).

Laches acts as a bar to relief when a habeas applicant’s unreasonable delay 

has prejudiced the State, thereby rendering consideration of his claim inequitable. 

See Perez, 398 S.W.3d at 219. When determining whether laches will bar a habeas 

application, courts should “keep, at the fore, the State’s and society’s interest in the 

finality of convictions, and consider the trial participants’ faded memories and the 

diminished availability of evidence.” Ex parte Smith, 444 S.W.3d 661, 666 (Tex. 
8

Crim. App. 2014) (footnotes omitted). Laches is determined using a “sliding scale,” 

wherein “the extent of the prejudice the State must show bears an inverse 

relationship to the length of the applicant’s delay.” Perez, 398 S.W.3d at 217. The 

rationale for the sliding-scale approach is based on the common-sense understanding 

that the longer a case has been delayed, the more likely it is that the reliability of a 

retrial has been compromised. Id. at 218-19. Trial courts “may draw reasonable 

inferences from the circumstantial evidence to determine whether excessive delay 

has likely compromised the reliability of a retrial.” Id. at 217. Delays of “more than 

five years may generally be considered unreasonable in the absence of any 

justification for the delay.” Id. at 216 n.12.

Nevertheless, delay alone is insufficient for laches to bar a claim, and courts 

should consider factors including: (1) the length of applicant’s delay in requesting 

equitable relief; (2) the reasons for the delay; (3) the degree and type of prejudice 

borne by the State resulting from applicant’s delay; and (4) whether the delay may 

be excused. Ex parte Bowman, 447 S.W.3d 887, 888 (Tex. Crim. App. 2014). Delay 

may be excused when the record shows that: (1) an applicant’s delay was not 

unreasonable because it was due to a justifiable excuse or excusable neglect; (2) the 

State would not be materially prejudiced as a result of the delay; or (3) the applicant 

is entitled to equitable relief for other compelling reasons, such as new evidence that 
9

shows he is actually innocent of the offense. Smith, 444 S.W.3d at 667. Laches is a 

question of fact and, in article 11.072 cases such as this one, the trial judge is the 

sole finder of fact. See Bowman, 447 S.W.3d at 888; Ex parte Garcia, 353 S.W.3d 

785, 788 (Tex. Crim. App. 2011).

In this case, the trial court’s findings of fact included the following relevant 

to the issue of laches:

[] The applicant has provided no explanation for the nearly-seven-year 

delay between the date this Court entered judgment and the date the 

applicant filed his application for writ of habeas corpus in this 

proceeding.

[] The controlled substance found in the applicant’s pocket and forming 

the basis of the charge in this case has been destroyed pursuant to this 

Court’s order. 

The trial court concluded that the doctrine of laches barred Appellant’s claim for 

relief. 

The record reflects that the trial court entered the judgment of conviction in 

July of 2010, and Appellant did not appeal from that judgment. Appellant was 

released from his community supervision by order signed on August 15, 2012. 

Appellant then waited another five years, nearly seven years after his judgment of 

conviction, before filing his habeas application, and he offered no evidence to justify 

or explain the delay. Appellant identified no change in law, legal status, or available 
10

evidence that would have prompted such a tardy application. In sum, Appellant 

offered no excuse or explanation for his neglect or delay.

In addition, the record reveals that Appellant waived preservation of evidence, 

and that the controlled substance forming the basis of Appellant’s charge has been 

destroyed pursuant to the trial court’s order. Because the controlled substance for 

which Gutierrez had been arrested has been destroyed, in any retrial, the State would 

suffer a diminished ability to prove that Appellant possessed a controlled substance, 

and the trial court could have reasonably concluded that the State was materially 

prejudiced due to Appellant’s delay. See Smith, 444 S.W.3d at 667. 

The record in this case does not reveal any justification for Appellant’s delay 

in seeking habeas corpus relief, and the record also supports a conclusion that the 

State has been prejudiced in its ability to retry its case. See Ex parte Roberts, 494 

S.W.3d 771, 776 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (concluding 

that laches barred a habeas claim where appellant provided no basis for his delay 

and the evidence available for retrial was diminished because the drugs forming the 

basis for the criminal charges had been destroyed). Accordingly, we conclude that 

Appellant has not shown that the trial court abused its discretion by concluding that 

Appellant’s application for writ of habeas corpus is barred by laches. Id.; Perez, 398 

S.W.3d at 216. We overrule Appellant’s first issue.
11

Alleged Ineffective Assistance of Counsel

Even assuming Appellant’s claim was not barred by laches, we next consider 

Appellant’s second issue that he did not receive the effective assistance of counsel 

when entering his guilty plea. According to Appellant, his trial attorney gave only a 

“boilerplate warning” that his guilty plea would subject him to deportation. 

Appellant argues that his trial counsel’s affidavit testimony only admonished him 

that he “may be” deported, and an admonishment that falls short of advising that a 

guilty plea would result in certain deportation is constitutionally deficient. In 

addition, Appellant argues that his trial counsel failed to advise him he was ineligible 

for cancellation of removal because he does not meet the seven-year continual 

residency requirement of applicable immigration regulations. 

A defendant is entitled to effective assistance of counsel when entering a 

guilty plea. Padilla v. Kentucky, 559 U.S. 356, 364 (2010); Hill v. Lockhart, 474 

U.S. 52, 58-59 (1985). When seeking post-conviction habeas relief on a claim of 

ineffective assistance, a defendant bears the burden of proving by a preponderance 

of the evidence that (1) counsel’s performance was deficient, in that it fell below an 

objective standard of reasonableness, and that (2) he was prejudiced as a result of 

counsel’s errors because, but for those errors, “‘he would not have pleaded guilty 

and would have insisted on going to trial.’” Lee v. United States, 137 S. Ct. 1958, 
12

1969 (2017) (quoting Hill, 474 U.S. at 59); Ex parte Torres, 483 S.W.3d 35, 43 (Tex. 

Crim. App. 2016); see also Strickland v. Washington, 466 U.S. 668, 687, 693 (1984).

In Padilla, the U.S. Supreme Court held that the Sixth Amendment requires 

an attorney for a criminal defendant to provide advice about the risk of deportation 

arising from a guilty plea. 559 U.S. at 374. Counsel’s performance is deficient if 

counsel fails to advise a noncitizen client with “accurate legal advice about the ‘truly 

clear’ consequences of a plea of guilty to an offense that, as a matter of law, renders 

him ‘subject to automatic deportation.’” Torres, 483 S.W.3d at 46 (quoting Padilla, 

559 U.S. at 360, 369). A failure by counsel to affirmatively and correctly advise a 

defendant regarding the clear deportation consequences of his plea will render 

counsel’s performance constitutionally deficient, thereby satisfying the first 

Strickland prong. See Padilla, 559 U.S. at 369, 374; Torres, 483 S.W.3d at 43-46; 

Ex parte Aguilera, 540 S.W.3d 239, 247 (Tex. App.—Houston [1st Dist.] 2018, no 

pet.).

As for the second Strickland prong, the Court of Criminal Appeals recently 

held,

. . . that the proper standard for determining prejudice is the one set 

forth in Hill, which requires an applicant to show a reasonable 

probability that counsel’s errors affected the outcome of the plea 

proceedings, in the sense that, but for counsel’s errors, the applicant 

would have rejected the plea bargain and instead pursued a trial.
13

Torres, 483 S.W.3d at 46 (citing Hill, 474 U.S. at 59). Similarly, the U.S. Supreme 

Court recently held that the Hill standard is the proper test for prejudice under 

Padilla. See Lee, 137 S. Ct. at 1965. The Supreme Court has explained that

[c]ourts should not upset a plea solely because of post hoc assertions 

from a defendant about how he would have pleaded but for his 

attorney’s deficiencies. Judges should instead look to contemporaneous 

evidence to substantiate a defendant’s expressed preferences.

Id. at 1967. 

In his affidavit accompanying his writ application, Gutierrez attested, in 

relevant part, as follows:

In addition, [my trial counsel] did not advise me that I would be 

placed in deportation proceedings. He did not tell me I would be 

ineligible for cancellation of removal or any other relief from the 

immigration court and that my guilty plea would thus make deportation 

a virtual certainty. 

. . . . 

For me deportation is a far worse punishment than serving time 

would have been. Had I known that I was statutorily ineligible for 

cancellation of removal or any other relief from the immigration court, 

and that consequently deportation would be a virtual certainty, I would 

not have pled guilty to the drug charge, especially had I been advised 

that the stop may have been illegal and the evidence potentially could 

have been suppressed and the charges dismissed. 

The State attached an affidavit of Appellant’s trial counsel to the State’s 

response to the application. Appellant’s trial counsel stated in his affidavit, in 

relevant part, as follows:
14

Long story short, Mr. Gutierrez wanted to get out of jail as 

quickly as possible, and I felt the merits of the case against him were 

very strong, and any argument for suppression was absolutely meritless 

– thus, Defendant elected to take the plea-bargain . . . .

. . . .

I do not recall the specifics of what I told Mr. Gutierrez in our 

initial consultation regarding immigration consequences but with every 

client who asserts that they are not a citizen of the United States in our 

initial consultation I explain that a guilty plea will subject them to 

deportation. I am a fluent Spanish speaker and our entire staff are 

Spanish speakers[,] we have a high volume of clients who are not 

citizens of the United States[,] thus we take great care to advise them 

of potential immigration consequences but also emphasize that we are 

not immigration lawyers. I always tell them I am NOT an immigration 

attorney and that they should seek the advice of an immigration attorney 

prior to pleading to a felony. Generally, my clients’ number one goal is 

to remain outside of jail in order to avoid possible contact with 

immigration officials.

Prior to the plea I tell every client that is not a citizen of the 

United States that a plea of guilty will subject them to deportation but 

again I cannot assure them of such deportation. I do not remember the 

specifics of my conversation with Mr. Gutierrez on July 2, 2010, 

however, I am certain that I discussed the trial court’s admonitions with 

him on that date as we executed his plea paperwork. Included in those 

admonitions is the fact that a plea of guilty may result in deportation, 

exclusion from the country or denial of naturalization. M[r]. Gutierrez 

understood his admonishments as evidenced by his signature on the 

document. I go over these admonishments thoroughly with every client 

and emphasize the immigration issues with our clients who are not 

citizens of the United States.

The trial court’s findings of fact included the following relevant to Appellant’s 

claim of ineffective assistance of counsel:
15

[] The Court is familiar with the performance of the applicant’s trial 

counsel, . . . who has long practiced in the courts of Montgomery 

County and is well-qualified for appointment in felony criminal cases.

[] In response to the applicant’s claims, [Appellant’s trial counsel] 

executed a sworn affidavit providing his version of the events 

surrounding the applicant’s plea. This Court finds his affidavit to be 

credible.

[] The applicant’s affidavit is not credible.

[] [Appellant’s trial counsel] discussed the applicant’s citizenship status 

with him and knew that the applicant was not a U.S. citizen.

[] [Appellant’s trial counsel] advised the applicant that his plea of guilty 

to the charged offense would subject him to deportation.

[] The applicant was aware that his plea of guilty would constitute 

ample cause for deportation.

[] The applicant has provided no evidence regarding his residency 

history.

[] The applicant has provided no credible evidence that, at the time of 

his plea, he had any knowledge regarding his potential eligibility for 

cancellation of removal.

[] There is no evidence that [Appellant’s trial counsel] offered any 

incorrect advice regarding the applicant’s immigration status or the 

potential immigration consequences of entering a guilty plea in this 

case.

[] The trial court properly admonished the applicant that his conviction 

“may result in deportation, the exclusion from admission to this 

country, or the denial of naturalization under federal law.”

[] After [Appellant’s trial counsel] advised the applicant regarding the 

consequences a guilty plea would have on the applicant’s immigration 
16

status, and after the trial court admonished the applicant that his 

conviction could subject him to deportation, the applicant never 

expressed any particularized concern about his immigration status prior 

to the entry of his guilty plea.

[] The applicant’s primary motivation during plea negotiations was to 

get out of jail as quickly as possible. 

The record in this case also reflects that, prior to accepting Gutierrez’s guilty 

plea, Gutierrez signed admonitions stating he understood his guilty plea could have 

adverse immigration consequences. The plea admonishments included the following 

statement: “If the Defendant is not a citizen of the United States of America, a plea 

of guilty or no contest for the offense charged may result in deportation, the 

exclusion from admission to this country, or the denial of naturalization under 

federal law.” 

Giving deference to the trial court’s findings of fact, we conclude the record 

supports an inference that Appellant’s trial counsel advised him that a guilty plea 

would result in deportation, as required by Padilla. See Padilla, 559 U.S. at 369, 

374; Torres, 483 S.W.3d at 43-46. Therefore, Appellant has failed to establish 

deficient performance as required by Strickland. See Strickland, 466 U.S. at 687.

In addition, we conclude that Appellant has failed to make the required 

showing of prejudice, that is, but for trial counsel’s alleged errors, Appellant would 

have rejected the plea bargain and instead have pursued a trial. See Lee, 137 S. Ct. 
17

at 1965; Torres, 483 S.W.3d at 46 (citing Hill, 474 U.S. at 59). We look to the 

contemporaneous evidence of Appellant’s expressed preferences in favor of his post 

hoc assertions. See Lee, 137 S. Ct. at 1967. In his affidavit, Appellant’s trial counsel 

attested that Appellant “wanted to get out of jail as quickly as possible[.]” Appellant 

signed plea admonishments that reflected he understood that his guilty plea could 

have adverse immigration consequences. See Ex parte Rodriguez, 378 S.W.3d 486,

496 (Tex. App.—San Antonio 2012, pet. ref’d) (concluding appellant failed to show 

prejudice under Strickland in part because the trial court’s admonishments addressed 

deportation consequences, even if the attorney’s advice had been deficient under 

Padilla) (citing Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002)). The 

trial court found that Gutierrez’s “primary motivation during plea negotiations was 

to get out of jail as quickly as possible.” And the trial court found Appellant’s 

affidavit supporting his application for writ of habeas corpus to be “not credible.”

Appellant also argues that Padilla required his trial counsel to inform him, not 

only that a guilty plea would subject him to removal, but also that he was ineligible 

for cancellation of removal. Appellant argues that his counsel had a duty “to analyze 

both the applicable INA removal provision and the alien’s eligibility for 

discretionary relief, and then calibrate the admonishment to accurately communicate 

the severity of an alien’s immigration consequences.”
18

We disagree that Padilla imposes such a duty. In Padilla, the Court explained:

Immigration law can be complex, and it is a legal specialty of its 

own. Some members of the bar who represent clients facing criminal 

charges, in either state or federal court or both, may not be well versed 

in it. There will, therefore, undoubtedly be numerous situations in 

which the deportation consequences of a particular plea are unclear or 

uncertain. The duty of the private practitioner in such cases is more 

limited. When the law is not succinct and straightforward . . . , 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.

559 U.S. at 369. “By its terms, the Supreme Court’s holding in Padilla is limited to 

the deportation consequences of a plea.” Ex parte Velasquez-Hernandez, No. WR80,325-01, 2014 Tex. Crim. App. Unpub. LEXIS 874, at *15 (Tex. Crim. App. Oct. 

15, 2014) (not designated for publication) (Keller, P.J., concurring) (citing Padilla, 

559 U.S. at 369). 

Appellant also argues that in Ex parte Rodriguez, the San Antonio Court of 

Appeals concluded that because Rodriguez was eligible for cancellation of removal, 

the consequences of her guilty plea were not certain and, therefore, her attorney’s 

warning that she “may be deported” was not constitutionally infirm. See 378 S.W.3d

at 496-97. Appellant argues that because he is not eligible for cancellation of 

removal, Ex parte Rodriguez requires that his attorney was required to inform him 

that deportation or removal was virtually certain.
19

In Rodriguez, the San Antonio Court explained that, if the deportation 

consequences for a defendant’s plea are not clear, “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.” Rodriguez, 378 S.W.3d at 491 (citing 

Padilla, 559 U.S. at 369; Ex parte Rodriguez, 350 S.W.3d 209, 211 (Tex. App.—

San Antonio 2011, no pet.)). Cancellation of removal in turn depends on numerous 

factors and the decision to grant relief rests in the immigration judge’s discretion. 

See Rodriguez, 378 S.W.3d at 493 (citing In re C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 

1998); Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978)). A legal permanent 

resident seeking cancellation of removal “bears the burden of demonstrating that his 

or her application for relief merits favorable consideration.” Id. at 490 (citing In re 

C-V-T-, 22 I. & N. at 12; 8 C.F.R. If the final result of the defendant’s plea depends 

on relief that may or may not be granted, the defendant’s eligibility for cancellation 

of removal makes the deportation consequence unclear or uncertain. Id. at 493 

(citing Padilla, 559 U.S. at 369). Accordingly, where a defendant’s deportation 

consequences are not truly clear, plea counsel’s duty is limited to advising the 

defendant of possible deportation consequences. See id. at 496 (citing Padilla, 559 

U.S. at 368; Rodriguez, 350 S.W.3d at 211). 
20

On this record, we conclude that the trial court could have reasonably 

determined that Appellant did not establish by a preponderance of the evidence that 

the facts entitled him to relief. See Kniatt, 206 S.W.3d at 664; Richardson, 70 S.W.3d 

at 870. In the absence of Texas or United States Supreme Court cases that have 

extended Padilla as Appellant advocates, we will not do so.2 Deferring, as we must, 

to the trial court’s findings of fact, we conclude that the trial court did not abuse its 

discretion in concluding that Appellant had failed to establish that his plea was 

involuntary due to the ineffective assistance of counsel, either because Appellant 

failed to show deficient performance, or because he failed to show prejudice, or both. 

See Strickland, 466 U.S. at 687, 693. We overrule Appellant’s second issue.

Hearing on the Writ Application

Appellant’s third issue argues that the trial court erred in failing to conduct an 

evidentiary hearing before ruling on his application for writ of habeas corpus.

Appellant concedes that a trial court is not required to conduct an evidentiary hearing 

before ruling on a writ application. See Tex. Code. Crim. Proc. Ann. art. 11.072 

 

2 Appellant’s brief cites to cases from other states in support of his argument. 

The decisions of the courts of other states are not binding on Texas state courts. See 

Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 295-97 (Tex. 1993) (holding 

that Texas courts are only obligated to follow decisions by higher Texas courts and 

the United States Supreme Court); Jeffery v. State, 169 S.W.3d 439, 443 n.1 (Tex. 

App.—Texarkana 2005, pet. ref’d) (same). 
21

§ 6(b) (“In making its determination, the court may order affidavits, depositions, 

interrogatories, or a hearing, and may rely on the court’s personal recollection.”). 

Nevertheless, Appellant argues that under Ex parte Wheeler, 203 S.W.3d 317 (Tex. 

Crim. App. 2006), when an applicant submits a prima facie claim and facts are 

disputed, the trial court considering a habeas application “must hold a hearing or at 

least allow the submission of supplemental evidence.” 

Ex parte Wheeler concerned a post-conviction habeas corpus proceeding in 

which the trial court conducted an evidentiary hearing, but we find nothing in 

Wheeler that requires such a hearing. Id. at 325-26. Article 11.072 specifically 

provides that a court “may” order affidavits, depositions, interrogatories, or a 

hearing, and that the court may rely on its own recollection. Tex. Code. Crim. Proc. 

Ann. art. 11.072 § 6(b). The statutory use of the word “may” indicates that a hearing 

is permissive and not mandatory. See Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. 

App.—Fort Worth 2005, no pet.) (“While section 6(b) clearly indicates that in 

making its determination the trial court may order affidavits, depositions, 

interrogatories, or a hearing, it does not require that the trial court do so.”); see also

Ex parte Aguilar, 501 S.W.3d 176, 178 (Tex. App.—Houston [1st Dist.] 2016, no 

pet.) (“[A]rticle 11.072 does not require the trial court to hold any hearing—let alone 

an evidentiary hearing—before rendering its decision.”); Ex parte Gonzalez, 323 
22

S.W.3d 557, 558-59 (Tex. App.—Waco 2010, pet. ref’d) (“[A] trial court is not 

required to conduct an evidentiary hearing to resolve controverted material fact 

issues in a postconviction habeas proceeding.”); Ex parte Franklin, 310 S.W.3d 918, 

922-23 (Tex. App.—Beaumont 2010, no pet.) (explaining that a trial court is not 

required to hold oral hearing when determining whether to deny habeas application 

alleging ineffective assistance of counsel).3

We note that the same trial court judge presided over Gutierrez’s original 

proceedings as his habeas proceedings, and article 11.072 permits a court to rely on 

its own recollection in ruling on a writ application. See Tex. Code. Crim. Proc. Ann. 

art. 11.072 § 6(b). The trial court’s findings of fact and conclusions of law reflect 

that it considered affidavit evidence submitted by both Gutierrez and by the State, 

and the trial court made credibility determinations. In addition, the trial court 

concluded that there was “ample evidence in the record for the Court to rule on the 

relief sought, [and] an evidentiary hearing is not required.” Accordingly, we find no 

 

3 We note that, in Ex parte Franklin, this Court held that an evidentiary 

hearing is required under article 11.072 when a habeas applicant claims actual 

innocence based on newly-discovered evidence. 310 S.W.3d 918, 921-23 (Tex. 

App.—Beaumont 2010, no pet.); see also Tex. Code Crim. Proc. Ann. art. 11.072 

§ 6(b) (West 2015). Gutierrez’s writ application did not make a claim of actual 

innocence based on newly-discovered evidence, and his brief does not cite to 

Franklin in support of his argument. 
23

error by the trial court in ruling on the writ application without holding an 

evidentiary hearing. We overrule Appellant’s third issue.

Having overruled all Appellant’s issues, we affirm the trial court’s order.

AFFIRMED.

_________________________

 LEANNE JOHNSON

 Justice

Submitted on January 26, 2018

Opinion Delivered June 13, 2018

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.