Opinion issued July 24, 2014

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-13-01042-CR

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EX PARTE WEI HSI CHIEN

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 99-DCR-32610HC2

MEMORANDUM OPINION

Wei Hsi Chien appeals from the trial court’s order denying his petition for 

writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal 

Procedure.1 Chien contends that his trial counsel rendered ineffective assistance of 

 

1

See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for 

appeal in felony or misdemeanor case in which applicant seeks relief from order or 

judgment of conviction ordering community supervision).
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counsel in the year 2000 when they purportedly affirmatively misadvised Chien of 

the immigration consequences of his plea of no contest. We hold that Padilla v. 

Kentucky, 559 U.S. 356 (2010), does not apply retroactively to this case, and that 

even if Chien’s counsel’s performance was deficient under pre-Padilla law, the 

trial court did not err in concluding that Chien was not prejudiced by the alleged 

deficiency. Accordingly, we affirm the trial court’s judgment.

Background

On May 19, 2000, Chien pleaded no contest to a charge of credit card abuse, 

a state jail felony. He was sentenced to four years’ deferred adjudication and 

assessed a $500 fine, plus court costs. He also was required to perform 250 hours 

of community service, pay restitution in the amount of $1,178.44, make a $50.00 

donation to Fort Bend County Crime Stoppers, and write a letter of apology. 

Twelve years later, on May 21, 2012, Chien filed his application for writ of 

habeas corpus. Chien contended that his no-contest plea was involuntary, asserting 

that Padilla applied retroactively and that his trial counsel were ineffective under 

Strickland v. Washington, 466 U.S. 668 (1984), because they did not correctly

advise Chien of the immigration consequences of his plea. In 2013, after the 

United States Supreme Court issued its opinion in Chaidez v. United States, 133 S. 

Ct. 1103 (2013) and the Court of Criminal Appeals issued Ex parte De Los Reyes, 

392 S.W.3d 675 (Tex. Crim. App. 2013), Chien filed an amended application in 
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which he acknowledged that Padilla does not apply retroactively. Nevertheless, 

Chien asserted in his amended application that he is entitled to habeas relief under 

pre-Padilla law because his counsel “rendered affirmative misadvice.”

A. Standard of Review and Applicable Law

We review a trial court’s denial of habeas corpus relief for an abuse of 

discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex 

parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary, 

333 S.W.3d 782, 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In 

conducting our review, we view the facts in the light most favorable to the trial

court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We 

review questions of law de novo. Ex parte Necessary, 333 S.W.3d at 787.

The test for determining the validity of a guilty plea is whether the plea 

represents a voluntary and intelligent choice among the alternative courses of 

action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31

(1970). The Strickland two-pronged test for ineffective assistance of counsel 

applies in the plea context. Hill v. Lockhart, 474 U.S. 52, 58 (1985) (citing 

Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective 

assistance of counsel, a criminal defendant must prove by a preponderance of the 

evidence that (1) his trial counsel’s representation was deficient in that it fell below 

the standard of prevailing professional norms and (2) there is a reasonable 
4

probability that, but for counsel’s deficiency, the result of the proceeding would 

have been different. See Strickland, 466 U.S. at 687; Salinas v. State, 163 S.W.3d 

734, 740 (Tex. Crim. App. 2005). Failure to show either deficient performance or 

sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at 

697.

In order to satisfy the second (prejudice) prong of the Strickland test in the 

guilty plea context, a criminal defendant or habeas corpus applicant must show that 

there is a reasonable probability that, but for his trial counsel’s errors, he would not 

have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Ex

parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.1997). When determining 

whether a defendant would have refused to plead guilty but for the allegedly 

deficient advice of his trial counsel, we consider the circumstances surrounding the 

plea and the gravity of the misrepresentation material to that determination. Ex

parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App.1999).

B. Analysis

In the trial court, appellant argued that the holding in Padilla should be 

applied retroactively. The United States Supreme Court held in Chaidez that 

Padilla announced a “new rule” of criminal procedure so that “a person whose 

conviction is already final may not benefit from the decision in a habeas or similar 

proceeding.” Chaidez v. United States at 1107–08 (citing Teague v. Lane, 489 U.S. 
5

288, 301 (1989)). In addition, the Court of Criminal Appeals held that Padilla’s

rule does not apply retroactively under the Texas Constitution. See Ex parte De 

Los Reyes, 392 S.W.3d at 679 (“defendants whose convictions became final prior 

to Padilla [March 31, 2010]....cannot benefit from its holding”). Accordingly, as 

Chien acknowledges, Padilla does not apply retroactively to the representation in 

the underlying case. See Allen v. Hardy, 478 U.S. 255, 258 n.1 (1986) (“Final” 

means judgment of conviction rendered, the availability of appeal exhausted, and 

the time for petition for certiorari has elapsed.”); Ex Parte Martinez, 2013 WL 

2949546, *3 (Tex. App.—Corpus Christi June 13, 2013, no pet.) (“conviction 

became final when the trial court accepted his guilty plea and entered an order of 

deferred adjudication”).

Citing Ex parte Arjona, 402 S.W.3d 312 (Tex. App.—Beaumont 2013, no pet.),

Chien argues that he nevertheless is entitled to relief under pre-Padilla law because 

his plea counsel did not merely fail to advise him of the immigration consequences 

of his plea but, rather, affirmatively gave him incorrect advice about those 

consequences. Ex parte Aronja notes in passing that there is “a possibility of an 

assumed duty by counsel” who affirmatively rendered immigration advice prePadilla. Id. at 319. But, ultimately, the Ninth Court of Appeals did not analyze 

the merits of Aronja’s claim; it instead set aside the trial court’s order denying the 

application and remanded the case to the trial court for a hearing, because the trial 
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court had twice scheduled but never held one. Id. at 320. Ex parte Aronja thus 

does not support Chien’s contention that he is entitled to habeas relief here.

Even if Chien could make a case under pre-Padilla law that his counsel’s 

performance was constitutionally deficient, we conclude, based upon our review of 

the trial court’s findings and the record, that Chien failed to prove the second prong 

of his ineffective assistance claim. See Strickland, 466 U.S. at 697 (“[A] court 

need not determine whether counsel’s performance was deficient before examining 

the prejudice suffered by the defendant as a result of the alleged deficiencies.”). 

This prong required Chien to show a reasonable probability that, but for his

counsel’s erroneous immigration advice, he would have rejected the plea bargain 

and insisted on going to trial. Hill, 474 U.S. at 59.

Here, only Chien’s cousin’s affidavit (his cousin is his co-defendant, Pei 

Wen Chen) and that of his father, Tzuey-Zen Chien, support Chien’s contentions

that remaining in the United States was so important to him that he would have 

rejected the plea agreement but for his counsel’s deficient performance. The trial 

court did not credit this evidence; it expressly found that Chien “did not prove that 

a decision to reject the plea bargain and proceed to trial would have been rational 

in this case.” We conclude that we may not disturb this finding on appeal.

First, Chien’s expert, Scott Benson, averred that Chien became immediately 

deportable upon pleading no contest to the credit card abuse charge. But, 
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importantly, Chien would have faced the same immigration consequence if he 

decided to go to trial and was found guilty by a jury. 8 U.S.C. § 1227 (a)(2)(A)(i)

(Supp. 2013) (alien convicted of a crime involving moral turpitude within five 

years after the date of admission and for which a sentence of one year or longer 

may be imposed is deportable); LaHood v. State, 171 S.W.3d 613, 620 (Tex. 

App.—Houston [14th Dist.] 2005, pet. ref’d) (noting that theft is a crime of moral 

turpitude and credit card abuse similarly is a crime of deception); United States v. 

Ramirez, 367 F.3d 274, 277 (5th Cir. 2004) (“The term ‘conviction’ is now defined 

as a formal judgment of guilt entered by the court or, if an adjudication of guilt has 

been withheld, where the judge has imposed some form of punishment, penalty or 

restraint on the alien’s liberty”). And, if he had risked going to trial, he faced a 

sentence of up to two years’ confinement and a $10,000 fine if found guilty. TEX.

PEN. CODE ANN. § 12.35 (a),(b) (West Supp. 2013). Accepting the State’s plea

offer, by contrast, allowed Chien to avoid confinement altogether. 

Second, the trial court found that Chien “presented no credible evidence” of 

any defense to the credit card abuse charge. Indeed, the offense report in the 

record reflects that Chien confessed to the crime. Thus, the State’s case against 

Chien was strong.

Third, the trial court credited the affidavit of Chien’s counsel to the effect 

that “[t]here was no better deal available to Chien as the prosecutor was not willing 
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to offer a plea to a reduced charge.” As a result, Chien’s only options were to 

accept the plea presented or risk being found guilty at trial, in which case he faced

up to 2 years’ confinement, a fine of up to $10,000.00, and deportation. 

The record supports the trial court’s conclusion that Chien did not 

demonstrate by a preponderance of the evidence that it would have been rational 

for him to reject the plea bargain and proceed to trial. Therefore, we hold that 

Chien was not prejudiced as a result of any alleged deficient conduct by his

counsel in the underlying case. See Ex parte Luna, 401 S.W.3d 329 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (affirming trial court’s denial of habeas relief 

because, even if applicant could have made a case under pre-Padilla law that his 

counsel’s performance was constitutionally deficient, applicant failed to prove the 

second prong Strickland claim where he was subject to removal regardless of 

whether he plead guilty or was found guilty by a jury and evidence against 

applicant in underlying case was strong).

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle

Justice 

Panel consists of Justices Keyes, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).