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
A ppellant 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 Guti errez 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 becaus e law enforcement officers observed him driving erratically. Gutierrez was arrested for driving while intoxicated. While searching Gutierrez during2

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

- tested positive for cocaine, and G utierrez 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, a ssessed 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 th ree 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 see king to vacate his 2010 conviction for possession of a controlled substance. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 201 5 ). Gutierrez’s application argued that he suffered

1 We cite to the current version of statute s as subsequent amendments do not affect our disposition.3

adverse collateral legal consequences due to his conviction, specifically t hat 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 bri ef 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
argu ed 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 Aug ust 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 c redible, 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 file4

his applicatio n 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 Gu tierrez’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 tha t 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 jud gment of conviction ordering community supervision , or (2) is no longer confined, but is subject to collateral legal consequences resulting5

from the conviction. See Tex. Code Crim. Proc. Ann. art. 1 1.072, 11.21, 11.22 (West 2015) . We have jurisdiction to review the denial of Gutierrez’s article 11.0 72 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 g uilty plea and conviction. See Ex parte Ali , 368 S.W.3d
8 2 7, 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 a nd 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 , 20 6 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 fin dings rely upon an evaluation of credibility and demeanor. Ex parte Tarlton , 105 S.W.3d 295, 297 (Tex. App.

— Houston [14th Dist.]6

2003, no pet.). We apply the same deference in review ing the habeas court’s application of law to fact questions, if the resolu tion 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 tri al 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 do es 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 out side 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 i n 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 a7

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 du e 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. S ee 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 unr easonable 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 int erest 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 sc ale,” 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 comp romised 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 c laim, 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 that9

shows he is actually innocent of the offense. Smith , 444 S.W.3d at 667. Laches i s 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 inc luded 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 thi s 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 t hen 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 available10

evidence that would have prompted such a tardy application. In sum, Appellant offer ed 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 b asis 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 Appellan t 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 crim inal 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 i s barred by laches. Id. ; Perez , 398 S.W.3d at 216. We o verrule Appellant’s first issue.11 Alleged Ine ffective 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 gu ilty 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 becau se 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 b elow 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. 195 8,12

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 attorne y 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’ co nsequences 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 (ci ting 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 bec ause 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 o r 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.
T he 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 c onsultation 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 a dvise 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. Gene rally, 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 depo rtation 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 ineffec tive 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 t he 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 deportatio n. [] 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 con sequences 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.” [] Af ter [Appellant’s trial counsel] advised the applicant regarding the consequences a guilty plea would have on the applicant’s immigration16

status, and after the trial court admonished the applicant that his conviction could subject him to deportation, the ap plicant 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 no t a citizen of the United States of America, a plea of guilty or no contest for the offense charge d may result in deportation, the exclusion from admission to this country, or the denial o f 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. Theref ore, 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 “n ot 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 straigh tforward .

. . , 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 3 69 . “By its terms, the Supreme Court’s holding in Padilla is limi ted to the deportation consequences of a plea.” Ex parte Velasquez

- Hernandez , No. WR

80,325

- 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 att orney’s warning that she “may be deported” was not constitutional ly 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 tha t 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 pend ing 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 depen ds 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

- , 2 2 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). Acco rdingly, 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 th is 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 entitle d 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,
int errogatories, 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 t rial 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 , 32322

S.W.3d 557, 558

- 59 (Tex. App.

— Waco 2010, pet. r ef’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 proce edings, 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 e vidence 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 u nder 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 applicat ion 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.