Opinion issued July 24, 2014

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 13
- 01042
- CR

——————————— EX PARTE WEI HSI CHIEN

On Appeal from the 400 th District Court Fort Bend County , Texas Trial Court Ca se No. 99
- DCR
- 32610 HC2

MEMORANDUM OPINION Wei Hsi Chien appeals from th e 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 T EX
. C ODE C RIM
. P ROC
. A NN
. 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).2

counsel in the year 2000 when t he y 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 t hat even if Chien ’s counsel’s performance was deficient under pre

- Padilla law, the trial court did not err in c oncluding that Chien was not prejudiced by the alleged deficiency

. Accordingly, w e affirm the trial court’s judgment. Background On May 19, 2000 , Chien pleaded no contest to a charge of credit c ard a buse, a state jail felony

. H e was sentenced to four years ’ deferred adjudication and assessed a $500 fine, plus court costs. H e 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, o n 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 t he y did not correctly ad vise 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 p arte De Los Reyes , 392 S.W.3d 675 (Tex. Crim. App. 2013), Chien filed a n amended appli cation in3

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, w e 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. 2 5, 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 e stablish ineffective assistance of counsel, a criminal defendant must prove by a preponderance of the evid ence 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 reasonable4

pr obability 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 counse l’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 t o 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
p arte Moody , 991 S.W.2d 856, 858 (Tex. Crim. App.1999)

. B. Analysis In the trial court , appellant argue d that the holding in Padilla should be applied retroactively. T he United States Supreme Court held in Chaidez that Padilla announced a “new rule” of criminal procedure so that “a person whose
conviction is al ready 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 (198 9 ) ). In addition, the Court of Criminal Appeals held that Padill a’s rule does not apply retroactively under the Texas Constitution. See Ex parte De Los Reyes, 392 S.W.3d at 67 9 (“defendants whose convictions became final prior
to Padilla [March 31, 2010]....cannot benefit from its holding”) . Accordingly, as Chien acknowledges, Padilla does not a pply 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 p arte 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 p arte Aronja notes in passing that there is “a possibility of an assumed duty by counsel” who affirmatively rendered immigration advice pre

Padilla

. Id . at 319. But, ultimately, the Ninth Court of Appeals d id 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 trial6

court had twice scheduled but never held one. Id . at 320. Ex p art e Aronja thus does not support Chien ’s contention that he is entitled to habeas relief here.
E ven 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 bef ore 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, sup port Chien ’s contention s that remaining in the United States was so important to hi m 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,7

importantly, Chien would have faced the s ame 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 c onvicted 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 [14 th 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 (5 th 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, pen alty or restraint on the alien’s liberty” )

. And, if he had risked going to trial, he faced a sentence of up t o two years’ confinement and a $10,000 fine if found guilty

. T EX
. P EN
. C ODE A NN . § 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 af fidavit of Chien ’s counsel to the effect that “[t] here was no better deal available to Chien as the prosecutor was not willing8

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 gu ilty at trial, in which case he face d 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 rati onal for hi m 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 p arte Luna , 401 S.W.3d 329 (Tex. App.

— Houston [14 th 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 Stri ckland claim where he was subject t o 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 Ju stice Panel consists of J ustice s Keyes, Sharp, and Huddle. Do not publish. T EX
. R. A PP
. P. 47.2( b).