NO. 04 -14- 00809
- CR

IN THE FOURTH COURT OF APPEALS OF TEXAS AT SAN ANTONIO, TEXAS

Ex parte GEORGE GARCIA , Appellant

Trial Court No. 200 0CR 5603W Appeal from 1 44 th District Court of Bexar County, Texas Hon. Andrew W. Carruthers , Judge Presiding

BRIEF IN SUPPORT OF MOTION TO WITHDRAW

RICHARD B. DULANY, JR. Texas Bar No. 06196400 Appellate Attorney Bexar Co unty Public Defender 101 W. Nueva St ., Suite 310 San Antonio, Texas 7820 5 ORAL ARGUMENT WAIVED ( 210) 335

- 0701 FAX (210) 335

- 0707 richard.dulany@bexar.org
ATTORNEY FOR APPELLANT ACCEPTED 04-14-00809-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/7/2015 3:28:32 PM KEITH HOTTLE CLERKii Identity of Parties and Counsel
Pursuant to T EX
. R. A PP
. P . 38.1(a), the parties are:
THE APPELLA NT : GEORGE GARCIA c/o Laura Garcia 507 Viendo Street San Antonio , T X 78201
THE APPELLANT’S ATTORNEY S: For the underlying plea
- entry hearing : Carlos Lopez (State Bar No. 1 2562950 ) Castle Hills Building 1100 N.W. Loop 410, Suite 102 San Antonio, TX 782 13
F or the Writ Application and related hearings: Shannon Salmon

- Haas 202 E. Locust San Antonio, TX 78212 On Appeal : Richard B. Dulany, Jr. (State Bar No. 06196400) Appellate Attorney Bexar County Public Defender’s Office 101 W. Nueva St., Ste. 310 San Antoni o, TX 78205
THE STATE’S ATTORNEY S : For the plea
- entry hearing : John (last name unreadable) Assistant District Attorney Paul Elizondo Tower 101 W. Nueva, Fourth Floor San Antonio, TX 78205 For the Writ Application and related hearings: Joshua Sandoval (St ate Bar No. 24079891) Assistant District Attorneyiii Paul Elizondo Tower 101 W. Nueva, Fourth Floor San Antonio, TX 78205 On Appeal : Nicholas LaHood , Bexar County District Attorney ( and his appellate section ) Bexar County District Attorney’s Office Appellate Division 101 W. Nueva St., Ste. 710 San Antonio, TX 78205
THE TRIAL COURT: For the underlying plea
- entry hearing : Hon. Pat Priest , (now Senior District Judge) c/o Criminal District Court Administration Paul Elizondo Tower 101 W. Nueva St., Suite 301 San Antonio, T X 78205 For the Writ Application and related hearings: Hon. Andrew W. Carruthers Criminal Law Magistrate Cadena

- Reeves Justice Center 300 Dolorosa, Second Floor San Antonio, TX 78205iv Table of Contents
P age Identity of Parties and Counsel

................................ ................................ ............. ii

- iii Table of Contents

................................ ................................ ................................ ...... iv Table of Authorities

................................ ................................ .............................. v - vi A Note on Record References

................................ ................................ ................. vi i Certificate of Compliance

................................ ................................ ....................... vi i Statement of the Case

................................ ................................ ............................. 1

- 2 No Meritorious Issues Presented for Review

................................ ............................ 2 Pursuant to Anders v. California , 386 U.S. 738 (1967) and High v. State , 573 S .W.2d 807 (Tex. Crim. App. 1978), counsel for Appellant has diligently searched the record an d upon resear ching all applicable law has determined that this appeal is without merit and frivolous. Summary of Facts

................................ ................................ ................................ .. 3

- 8 Summary of the Arg u ment

................................ ................................ ......................... 8 Summary of the Facts Pertinent to Anders v. California

................................ ........... 9 Argument and Authorities

................................ ................................ .................. 1 0

- 16 Conclusion

................................ ................................ ................................ ......... 1 6

- 17 Prayer

................................ ................................ ................................ ....................... 1 8 Certificate of Service

................................ ................................ ............................... 1 9 Appendix

................................ ................................ ................................ .................. 2 0v Table of Authorities
**Cases** Anders v. California , 386 U.S. 738 (1967)

................................ ...................... passim
Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)

................................ ... 15 Chaidez v. United States , ––– U.S.

– ––– , 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013)

................................ ................................ ................................ .............................. 12 Ex parte De Los Reyes , 392 S.W.3d 675, 679 (Tex. Crim. App. 2013)

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

............................ 10 Ex parte Luna , 401 S.W.3d 329, 334 (Tex. App.

– Houston [14th Dist.] 2013, no
p et.)

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

.......................... 13 Ex parte Raborn , 658 S.W.2d 602, 605 (Tex. Crim. App. 1983)

............................ 14 Ex parte Roldan , 418 S.W.3d 143,146 (Tex. App.

– Houston [14 th Dist.] 2013, no pet.)

................................ ................................ ................................ ....................... 13 Ex parte Sudhakar , 406 S.W.3d 699, 702 (Tex. App.

– Houston [14 th Dist.] 2013, pet. ref’d)

................................ ................................ ................................ .............. 13 Ex parte Villanueva , 250 S.W.3d 391, 397 (Tex. Crim. App. 2008)

...................... 10 Ex parte Wilson , 724 S.W.2d 7 2 (Tex. Crim. App. 1987)

................................ ....... 15 Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

................................ 10 Hernandez v. State , 726 S.W.2 d 53, 57 (Tex. Crim. App. 1986)

............................ 14vi Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App. 1999)

................................ 15 High v. State , 537 S.W.2d 807 (Tex.Crim.App. 1978)

................................ .. iv, 2, 17 Johnson v. United States , 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966)

........................ 16 Kelly v. State , 436 S.W.3d 313 (Tex. Crim. App. 2014)

................................ ......... 17 McMahon v. State , 528 S.W.2d 771, 772 (Tex. Crim. App. 1975)

......................... 17 Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) passim Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003)

........................... 15
State v. Guerrero , 400 S.W.3d 576, 582 (Tex. Crim. App. 2013)

................... 10, 12 State v. Jimenez , 987 S.W.2d 886, 887

– 88 (Tex. Crim. App. 1999)

....................... 13 Wilkerson v. State , 726 S.W.2d 542, 548 (Tex. Crim. App . 1986)

......................... 14
**Statutes**
T EX
. C RIM
. P ROC
. A NN
. art. 11.072 (West 2005)

................................ ................. 2 , 10vii A Note o n Record References The reporter’s record is one volume , from the hearing on the application for writ of habeas corpus

. R eference to the reporter’s r ecord will be: (RR at ___ ). T he clerk’s record is one volume , plus two supplemental volumes . Reference to the main volume of the clerk’s record will be: (CR at ___ ). The first supplemental clerk’s record was filed on January 23, 2015. Reference to it is: (SCR at ___ ). The findings of fact and conclusions of law were filed as a s econd s upplemental clerk’s record on March 10, 2015. Reference to it will be: (FFCL at ___ ).

Certificate of Compliance
Pursuant to T EX
. R. A PP
. P . 9.4(i)(1) & (i)(2)(B ), the w ord count, from the beginning of the S ummary of Facts until, but excluding, the signature block, is:
3 ,508. The total word count is 5 ,117.1 TO THE FOURTH COURT OF APPEALS OF TEXAS: The undersigned attorney submits this brief in support of his motion to

w ithdraw. This is an appeal from Appellant’s writ application seeking to withdraw his no contest plea (entered on N ovember 3 , 2000) on grounds that it was involuntary because plea counsel allegedly failed to inform him of the immigration consequences of his plea. After a n evidentiary hearing, the trial court denied the relief sought. Appellant now appeals from the trial court’s ruling denying relief. Statement of the Case The Appellant , George Garcia , waived indictment and consented in writing
to be charged by information with possession of cocaine in an amount less than one gram or more, a State Jail felony . (CR at 6, 8 ). The information alleged that the offense was committed on or about June 17, 2000

. (CR at 8 ). On November 3 , 200 0 , Appellant entered a neg otiated no

- contest plea to the charged offense

. ( CR at
14

- 16 , 19 ). The trial court , the Honorable Pat Priest presiding, followed the terms of the plea agreement , deferred adjudication of guilt, and place d Appellant on community supervision for two years. ( CR at 16, 30

- 36 ). The term of community supervision began on December 7, 2000 . (CR at 3 0 ). The clerk’s record reflects that Appellant’s term of deferred

- adjudication probation was terminated “unsatisfactorily” on December 17, 2002, because he was “[d]eport ed on 2

- 16

- 01 [ , ] ” and also owed $1,812.25 in unpaid fines and fees. (CR at 37)

.2 On July 25, 2014, Appellant filed an application for writ of habeas corpus seeking to withdraw his no

- contest plea on grounds that his plea counsel rendered ineffective assistanc e because he allegedly failed to advise Appellant that he would be deported as a result of the plea. (CR at 39

- 45). The writ application was filed under Article 11.072 of the Code of Criminal Procedure. T EX
. C RIM
. P ROC
. A NN
. art. 11.072 (West 2005)

. The trial court referr ed the matter to the criminal law magistrate. (CR at 38). An evidentiary hearing was held on October 23, 2014, and the relief sought was denied. (RR at 1, 41) (SCR at 3)

. On November 20 , 2014, Appellant timely filed a notice of appeal from the
denial of ha beas relief

. (CR at 47 )

. O n February 11, 2015 , t he trial court appointed the Bexar County Public Defender’s Office to rep resent Appellant on appeal. The trial court subsequently filed written Findings of Fact and Conclusions of Law. This appeal follows.
No Meritorious Issues Present for Review In compliance with the requirements of Anders v. California , 386 U.S. 738 (1967) and High v. State , 573 S.W.2d 807 (Tex. Crim. App. 1978) , the undersigned, court

- appoi nted attorney states that he has diligently reviewed the entire record in this cause and the law applicable thereto , and, in his opinion, has determined that this appeal is wholly frivolous and without merit in that the recor d3 reflects no reversible error, and no issues for review upon which an appeal may be predicated. Summary of Facts More than fourteen years ago, George Garcia , the Appellant, was charged with possession of cocaine in an amount less than one gram or more, a State Jail felony. (CR at 6, 8)

. He waived indictment and consented in writing to be charged by information. The information alleged that the offense was committed on or about June 17, 2000. (CR at 8). On November 3 , 200 0 , Appellant entered a negotiated no

- contest plea to the charged of fense. (CR at 1 4

- 1 6 , 19 ). The plea paperwork, which Appellant signed, includes an admonishment that Appellant understood that he could be deported as a consequence of his no

- contest plea. (CR at 14). The trial court, the Honorable Pat Priest presiding, fol lowed the terms of the plea agreement, deferred adjudication of guilt, and placed Appellant on community supervision for two years. (CR at 16, 30

- 36). The term of community supervision began on December 7, 2000. (CR at 30). Condition Number 38 of the “Ter ms and Conditions of Community Supervision” required Appellant to “...immediately leave the United States of America either voluntarily or be deported by Constituted Legal Authority.” (CR at 35). That condition also prohibited Appellant from illegally re

- ent ering the United States. (CR at 35). The clerk’s record reflects that Appellant’s term of deferred

-4 adjudication probation was terminated “unsatisfactorily” on December 17, 2002, because he was “[d]eported on 2

- 16

- 01” and also owed $1,812.25 in unpaid fines and fees. (CR at 37). Almost fourteen years later, on July 25, 2014, Appellant filed an Application for Writ of Habeas Corpus seeking to withdraw his no

- contest plea. (CR at 39). In his writ application, he states that his plea attorney told him that his no - contest plea “would not negatively affect his immigration status.” (CR at 40). Through counsel, Appellant also claims that he “was completely unaware that he would be deported as a result of the plea.” (CR at 40). Appellant thus asserts that his plea wa s not voluntary because he received ineffective assistance from his plea counsel. (CR at 44). But in his writ application, Appellant concedes that the trial court judge gave him the following admonishment at sentencing, on December 7, 2000: “These
circums tances, as you were sworn when you entered your plea, are such that you are probably now going to be deported by the U.S. government.” (CR at 40). Appellant states that he was, in fact, taken into “INS custody” immediately after sentencing. (CR at 40). The writ application was referred to the Criminal Law Magistrate , the Honorable Andrew W. Carruthers, for an evidentiary hearing. (CR at 38). That hearing was held on October 23, 2014. (RR at 1). Laura Ramirez was Appellant’s first witness. Ramirez explained that she was formerly married to Appellant , for 205 years , and has known him for 26 years. (RR at 6). She was surprised that Appellant was taken into custody after the sentencing hearing, on December 7, 2000. (RR at 8). She thought he had a deal for probati on and would be back home that evening. (RR at 8). Ramirez believed Appellant didn’t know he was going to be deported

. She said he would have made appropriate arrangements with her to care for their
children and house if he knew he c ouldn’t come back home after his court
appearance . (RR at 9

- 10 ). Ramirez also said that Appellant’s plea attorney advised him that he wouldn’t have any immigration problems. (RR at 12). Ramirez herself said she became aware of the immigration consequences of Appellant’ s no - conte st plea only after she and Appellant hired an immigration attorney, a year or two after he was deported. (RR at 14). On cross examination, Ramirez conceded that she never talked with Appellant’s plea attorney and was not present when Appellant met with hi m. (RR
at 20

- 21). She did not know what that attorney actually told Appellant. (RR at 21). She was also not presen t when Appellant entered his no

- contest plea. (RR at 21). The Appellant, George Garcia , was the only other witness to testify at the hearing. (RR at 24). He testified through an interpreter. (RR at 24). Appellant said that in 2000, he hired attorney Carlos Lopez to represent him on his drug possession case. (RR at 25). Appellant told Lopez that he was a Legal Permanent Resident and was concerne d about being deported. (RR at 25). Appellant claimed6 that Lopez told him that “everything was going to be fine.” (RR at 26). But at the “final court date,” which was presumably the sentencing held on December 7, 2000, Appellant again asked Lopez if he wou ld have immigration “problems.” Lopez said, “I don’t know.” (RR at 26). According to Appellant, the judge then told him he had 24 hours to leave the United States. (RR at 26). Right a fter the sentencing hearing, probation officers also told him that he had to leave the country. Appellant said he was arrested by the immigration officer that same day , as he was leaving the probation office . (RR at 26). Appellant said he did not know that he had a right to have a jury trial. (RR at 28). He testified tha t he “would have fought my case” if he had known that he was going to be deported. (RR at 28). He did not believe his plea was voluntary because he didn’t know the consequences of his plea and “...didn’t have knowledge of the law....” (RR at 29). When asked if he reads and writes English, Appellant answered, “Very little. Almost none.” (RR at 29). On cross examination, Appellant claimed that he did not remember the admonitions that the judge gave him before accepting his plea. (RR at 32). Appellant said, “[e]v erything was very fast in the courtroom.” (RR at 32). He was assisted by an interpreter. (RR at 32). Appellant said he understood everything that was translated for him, but claimed he never heard that he could have a jury. (RR at 33). He didn’t remember i f anyone told him that he could have a jury trial, but7 insisted he would have “gone to trial” if he knew that were an option. (RR at 34). Appellant said that the judge at his plea told him “like two or three times” that he had to leave the United States in 24 hours. (RR at 35). But Appellant entered his plea anyway because his attorney told him he would “have probation.” (RR at 35). The trial court took judicial notice of the written admonishments contained in the court’s file. (RR at 37). The trial court specifically noted that admonishment number seven said that Appellant could be deported as a result of his plea. (RR at 37). The trial court also noted that Appellant signed the admonishment. (RR at 37

- 38). Appellant’s writ counsel argued that plea counse l was unconstitutionally ineffective because he failed to inform Appellant of the consequences of his plea. (RR at 39). The prosecutor countered that Appellant was properly admonished regarding the possible effects the plea would have because of his status as a non citizen. (RR at 40). Even if Appellant’s attorney failed to advise him properly, he was advised properly by the judge. (RR at 41). The trial court denied the relief sought. (RR at 41). The trial court subsequently entered written Findings of Fact and Conclusions of Law. (FFCL at 3

- 5). The trial court noted that Appellant was admonished in writing that he could be deported as a result of his plea, and noted that Appellant signed the admonitions. (FFCL at 3

- 4). Under the “Conclusions of8 Law,” the tr ial court correctly notes that Appellant had the burden of proving the allegations in his writ application by a preponderance of the evidence. (FFCL at 4). The trial court also found that Appellant’s conviction “was final before Padilla 1
was decided.” Beca use the Padilla holding is not retroactive, Appellant is not entitled to relief on grounds that his attorney was deficient in informing him of the immigration consequences of his plea. (FFCL at 4). The trial court found that Appe llant was properly advised of the immigration consequences of his plea under Article 26.13 of the Code of Criminal Procedure. (FFCL at 4). The trial court concluded that “...there was no Trial Court error that caused Applicant [Appellant] to render an involuntary plea.” (RR at 5 ). The trial court certified that Appellant has the right of appeal . ( S CR at 4 ). Appellant timely filed a notice of appeal on November 20, 2014 . (CR at 47 ). T he trial court appointed the Bexar County Public Defender’s Office to represent Appellant on appea l. This appeal follows. Summary of the Argument In the professional opinion of the undersigned counsel for Appellant, after a diligent search of the record and of the applicable law, there is no reversible error reflected in the record. Therefore, this ap peal is without merit and frivolous.

1 Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

.9 Summary of Facts Pertinent to Anders v. California In his writ application, Appellant has attempted to bring a Padilla

- type claim that his no contest plea

–– entered in 2000

–– was involuntary . Specific ally, he argues that he should be allowed to withdraw his plea because he was never told by his attorney that deportation was a certain consequence

. But Padilla was decided in 2010 and is not applied retroactively. Instead, the record reflects (and the tri al court so found) that Appellant was properly admonished regarding the immigration consequences of his plea under the law as it existed in 2000, when he entered his plea. Appellant did not prove his claim that his n o - contest plea was in voluntary by
a prep onderance of the evidence

. So the trial court did not a buse its discretion in denying the relief Appellant sought via his writ application. I n short, undersigned counsel can find no meritorious issues to raise on Appellant’s behalf. As such, t his appeal is frivolous and wi thout merit

.10 Argument and Authorities
The standard of review. Appellant filed his writ application under Article 11.072 of the Code of Criminal Procedure. T EX
. C ODE C RIM
. P ROC
. A NN . art. 11.072 (West 20 0 5)

. Article 11.072 is “the exclusive means by which the district courts may exercise their original habeas jurisdiction under Article V, Section 8, of the Texas Constitution in cases involving an individual who is either serving a term of community supervision or who has comple ted a term of community supervision.” State v.
Guerrero , 400 S.W.3d 576, 582 (Tex. Crim. App. 2013) ( quoting Ex parte Villanueva , 250 S.W.3d 391, 397 (T e x. Crim. App. 2008) )

. T o prevail, t he applicant must prove, by a preponderance of the evidence, the facts that would entitle him to relief. Guerrero , 400 S.W.3d at 583.
The trial court ’ s denial of habeas relief is reviewed for an abuse of discretion. Ex parte Garcia , 353 S.W.3d 785 , 787 (Tex. Crim. App. 2011)

. In an Article 11.072 habeas proceeding, the trial judge is the sole finder of fact.
Guerrero , 400 S.W.3d at 583. The highly deferential Guzman stand ard of review controls in such cases

. Ex parte Garcia , 353 S.W.3d a t 787

– 88 , citing Guzman v.
State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

. U nder this standard, the appellate court affords almost total deference to a trial court's factual findings when11 supported by the record, especially when those findings are based upon credibility and demeanor. Guzman , 955 S.W.2d at 89.
The Padilla
- type claim.
In Padilla v. Kentucky , the Supreme Court held that the Sixth Amendment requires an attorney representing a criminal defendant to advise his client of the
risk of “ automatic ” deportation as a consequence of a guilty plea. Padilla , 559 U.S.
368

- 69, 130 S.Ct. at 1483 (counsel provided ineffective assistance of counsel when immigration law was succinct and clear that defendant woul d be subject to automatic deportation upon entry of guilty plea, statute was not difficult to read and understand, and counsel's advice concerning possibility of deportation was incorrect). I n his writ application, Appellant makes a Padilla

- type claim. Specifically, he argues that his plea attorney failed to inform him that his no

contest plea would lead to his deportation . According to Appellant, his plea counsel told him that his no - contest plea “would not negatively affect his immigration status.” (CR at 40). A s a result of t his allegedly deficient advice, Appellant claims that he “was completely unaware that he would be deported as a result of the plea.” (CR at 40). H e was, in fact, taken into “INS custody” immediately after sentencing. (CR at 40). He t hus alleges that his no - contest plea

wa s not voluntary because he received ineffective assistance from his plea counsel. (CR at 44).12 The rule announced in Padilla v. Kentucky does not apply retroactively. Appella nt entered his no

- contest plea o n November 3, 2000, and was sentenced on December 7, 2000. ( CR at 14

- 16 , 19 , 30 ). I n Chaidez v. United
States , ––– U.S.

–––– , 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) , the United States Supreme Court explicitly held that Padilla announced a new rule and, thus does not apply retroactively to defendants whose cases became final prior to the date the Padilla decision was announ ced, on March 31, 2 010. The Texas Court of Criminal Appeals has a dopted the retroactivity analysis in Chaidez a s a matter of state law. Ex parte De Los Reyes , 392 S.W.3d 675, 679 (Tex. Crim. App. 2013) ( f ollowing the Supreme Court ’ s reason ing in Chaidez v. United States , that the Padilla court announced a new rule, so defendants whose convictions became final prior to Padilla cannot benefit from its holding). So Appellant may not rely on Padilla in arguing that he was denied the effective assistance of counsel when he entered his

no - co ntest plea in November 2000. 2
Pre
- Padilla law.
U nder pre

- Pad illa law, the Sixth Amendment ’ s assurance of the effective assistance of counsel does not e xtend to “ collateral ” aspects of the prosecution. Ex

2 Appellant does not have a final conviction un der state law bec ause he was placed on deferred

adjudication community supervision and terminated “ unsatisfactorily ” in December 2002. (CR at 37). But for purposes of Padilla and federal immigration law, he had a “ final conviction ” when he was placed on deferred

- adjudication community supervision in December 2000. See Guerrero , 400 S.W.3d at 587

- 8 8 ( e xplaining that deferred

- adjudication community supervision is considered a “ conviction ” within the context of federal immigration law).13 parte Luna , 401 S.W.3d 329, 334 (Tex. App.

– Houston [14th Dist.] 2013, no pet.) (quoting Ex parte Morrow , 952 S .W.2d 530, 536 (Tex. Crim. App. 1997) ). Immigration consequences of a guilty plea were considered collateral and did not support an ineffective

- assistance

- of

- counsel claim. See State v. Jimenez , 987 S.W.2d 886, 887

– 88 (Tex. Crim. App. 1999) (“That a guilty plea may result in deportation is generally considered a collateral consequence.”); Ex parte Luna , 401 S.W.3d at 334 (“Immigration consequences of a guilty plea are considered collateral ....”). Accordingly, “a pre

- Padilla plea is not involuntary even if counse l

w e r e deficient in advising his client regarding the immigration consequences.” Ex parte Roldan , 418 S.W.3d 1 43, 146 (Tex. App.

– Houston [14 th Dist. ] 2013, no pet.) (citing Ex parte Sudhakar , 406 S.W.3d 699, 702 (Tex. App.

– Hous ton [14 th Dist.] 2013, pet. ref ’ d) ). Here, the trial court found that Appellant was admonished in writing that he could be deported as a result of his no

- contest plea. (FFCL at 3

- 4) (CR at 14)

. And Appellant concedes that the trial court judge gave him the following admonishment at sentencing, on December 7, 2000: “These circumstances, as you were sworn when you entered your plea, are such that you are probably now going to be deported by the U.S. government.” (CR at 40). The record reflects that Appellant received a written admonishment regarding the immigration consequences of his plea, and thus supports the trial court ’ s written conclusion that the no

- contest plea14 was not involuntary e ven if ple a counsel ’ s immigration advice was deficient

. Therefore, the trial cou rt did not abuse its discretion in denying A ppel lant ’ s application for a writ of habeas corpus.
I neffect ive assistance of counsel generally

. In addition to his Padilla

- type claim, Appellant argues that his plea counsel was ineffective for not plea bargaining “ effectively ” and f or not “ mitigating harm
to ” Appellant

. These more general ineffective

- assistance allegations a re also not supported by t he record

. The test for ineffective assistance of counsel is derived from the Supreme
Court case Stri ckland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) , and adopted by the Texas Court of Criminal Appeals in Hernandez v.
State , 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) . In order for counsel to be deemed ineffective, it must be shown that counsel’s representation “fell below an objective standard of reasonableness” and there is the probability that, but for

couns el’s deficient performance, the result would have been different. Id . at 55. The test is applied to the “totality of the representation” rather than to isolated acts or omissions of trial counsel, Ex parte Raborn , 658 S.W.2d 602, 605 (Tex. Crim. App. 1983 ) , and is applied at the time of the proceeding, not through hindsight. Wilkerson v. State , 726 S.W.2d 542, 548 (Tex. Crim. App. 1986) . It is rare for the appellate record to contain sufficient information to permit an appellate court to15 evaluate the merits of a claim of ineffective assistance. Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)

. The Strickland test requires an accused to show that his or her counsel’s representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. In meeting the second prong, that defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Ex parte Wils on , 724 S.W.2d 72, 74 n. 1 (Tex. Crim. App. 1987) . Thus, the defendant must show that he was prejudiced as a result of deficient attorney pe rformance. Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App. 1999)

. T h e essence of Appellant ’ s ineffective

- assistance claim is that trial counsel should not have allowed him to plead no contest , since that plea provided the legal grounds for Appellant to be dep orted . However, that argument is not meritorious. The appellate court will not second

- guess trial counsel’s strategy, nor is the court privy to the reasons counsel may have advised Appellant to plead no contest in this

case . Judicial scrutiny of coun sel’s performance must be highly deferential, and a reviewing court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003 ) . Thus, “the defendant must16 overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” I d. The facts in the present case do not support an assertion that Appellant received ineffective assistance from his plea counsel. Plea counsel did not testify at the evidentiary hearing or provide an affidavit to explain why he advised Appella nt to enter the no - contest plea

. Thus Appellant cannot overcome the strong presumption that h is counsel ’ s actions were motivated by sound tri al strategy. Strickland , 466 U.S. at 689. Indeed, the plea agreement resulted in Appellant being placed on deferred

- adjudication community supervision , instead of being incarcerated. Appellant would have been subject to deportation either way, so the plea agreemen t did result in a significant benefit to Appellant. For these reasons,
t he record does not support a finding that defen se counsel’s performance fell below an objective standard of reasonableness under Strickland . Therefore, it is unnecessary to reach the second prong of the analysis. Conclusion
A fter a thorough review of the record, the undersigned attorney is unable to identify any potentially meritorious points on appeal . I t is the professional opinion of the u ndersigned counsel that the appeal is frivolous and without merit. 3 See

3 See Johnson v. United States , 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966) (Burger, J. concurring): “An att orney owes his first duty to the court . . . His oath requires him to be absolutely honest even though his client’s interests may seem to require a contrary course.”17 Anders v. California , 3 86 U.S. 738 (1967). Counsel has executed an attached Certificate of Service certifying that he is sending Appellant a copy of his Motion to Withdraw, and a copy of this Brief, with an explanation of Appellant’s further rights reg arding t his appeal. High v. State , 537 S.W.2d 807 (Tex. Crim. App. 1978)

. Pursuant to the requirements of Anders v. California , 386 U.S. at 744

- 45, and High v. State , 573 S.W.2d at 813, counsel ha s document ed that he has furnished Appellant with a copy of this brief . He has notified Appellant of his right to review the record and to file any brief that he deems appropriate. He has also provided Appellant with a motion for pro se access to the appellate reco rd to file with this Court if Appellant decides that he does wish to review the record and file a pro se brief. See Kelly v. State , 436 S.W.3d 313, 3 18

- 19 (Tex. Crim. App. 2014)

. Counsel for Appellant has attached documentation of the letter advising Appellant of his rights and remedies , with instructions for filing the motion for pro se access to the appellate record

. See Anders , 386 U.S. at 744; McMahon v. State , 528 S.W.2d 771, 772 (Tex. Crim. App. 1975) ; Kelly , 436 S.W.3d at 318

- 19

.18 Prayer Counsel respectfully requests that he be allowed to withdraw from representation of Appellant , and for all other relief that is fair and just

. Respectfully submitted, /s/ Richard B. Dulany , Jr.

________________________________ ___ RICHARD B. DULANY, JR. A ppellate Attorney Bexar County Public Defender ’s Office 101 W. Nueva St., Suite 310 San Antonio, Texas 78205 (210) 335

- 0701 FAX (210) 33 5

- 0707 richard.dulany@bexar.org Texas Bar No. 06196400
ATTORNEY FOR APPELLANT19 Certificate of Service I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief In Support of Motion to Withdraw has been delivered by electronic service to the Bexar County District Attorney’s Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 71 0, San Antonio, Texas 78205, on April 7, 2015

. I further certify t hat a true and correct copy of the foregoing brief, as well as counsel’s motion to withdraw , a letter outlining Appellant’s right to file a pro se brief, and a motion for pro se access to the appellate record, were sent to: George Garcia , c/o Laura Garcia , 507 Viendo Street , San Antonio , T X 782 01 , by certified mail, return receipt requested, Article No. 70 1 2 1 6 4 0 0 002 4 217 9 864 , on May 7, 2015

. /s/ Richard B. Dulany, Jr.

________________________________ ____ RICHARD B. DULANY, JR.20 Appendix

– Letter advising G eorge Garcia of h is rights under Anders v. California , with motion for pro se access to the appellate record

.1 Bexar County Public Defender’s Office Paul E l izondo Tower  101 W. Nueva St., Suite 310  San Antonio, TX 7820 5 Phone: (210) 335
- 0701  Fax: (210) 335
- 0707 April 7, 2015
G eorge Garcia c /o Laura Garcia 5 07 Viendo Street San Antonio, TX 7 8201
Re: E x parte George Gar cia Appeal No. 04

- 1 4

- 00 8 09

- CR Cause No. 20 0 0 CR 5 603W
Dear Mr. G arcia : The trial court appointed the Bexar County Public Defender’s Office to represent you in your appeal from t he denial of habeas corpus relief in the above

- styled and numbered case . This letter is to advise you that I have reviewed the appellate record and have determined that there are no errors in the record that w ould s upport a reversal of t he judge ’ s dec ision to deny the relief sought

. I have enclosed a copy of the brief that I have filed, which reflects the fact that I was unable to find any reversible error s . I have also enclosed a copy of my Motion to Withdraw, which I am required to file with the Fourth Court of Appeals because I have asserted that there are no meritorious g rounds for relief

. See In re Schulman , 252 S.W.3d 403 (Tex. Crim. App. 2008). You have the right to review the appellate record on your own to see if you can find any error . If you decide that revers ible error did occur in connection with your writ application , you may file a brief of your own with the Fourth Court of Appeals

. If you decide to exercise your right to review the appellate record and prepare a pro se respons e to the brief that I have filed, you will need to sign and date the Motion for Pro Se Access to the Appellate Record that I have enclosed with this letter. See Kelley v. State , 436 S.W.3d 313 (Tex. Crim. App. 2014). You must sign, date, and return the Mot ion to the Fourth Court of Appeals at the following address within 10 days :2 Fourth Court of Appeals Cadena

- Reeves Justi ce Center 300 Dolorosa St., Suite 3200 San Antonio, T X 78205

- 3037 The Clerk of the Fourth Court of Appeals will then advise you how to obtain a copy of the appellate record

. The Fourth Court of Appeals will review the appellate record, my brief, and your pro se brief if you decide to file one. If the Court does agree with my conclusion that this appeal is frivolous, you can then challe nge that finding by filing a pro se petition for discretionary review with the Cou rt of Criminal Appeals of Texas

. After the Fourth Court of Appeals issues its opinion

–– which may take several months

–– I will send a letter with more information about filing a pro se petition for di scretionary review. This concludes my representation of you on this matter, other than to send you a copy of the judgment and opinion , and advise you of your further rights after the Court of Appeals issues its opinion

. Although I have filed a motion to withdraw from your case, I remain available to answer any questions that you may have. Sincerely yours,

RICHARD B. DULANY, JR. A ssistant Public Defender
Enclosures : Copy of Brief in Support of Motion to Withdraw Copy of M otion to Withdraw Motion for Pro Se Access to the Appellate Record
Certified Mail

– Return Receipt Requested Certified No. 7 0 1 2 1 6 4 0 0002 4 217 9 864NO. 04
- 14
- 00 809
- CR
IN THE FOURTH COURT OF APPEALS OF TEXAS AT SAN ANTONIO, TEXAS
E x parte GEORGE GARCIA , Appellant APPELLANT’S MOTION FOR PRO SE ACCESS TO THE APPELLATE RECORD
TO THE HONORABLE COURT OF APPEALS: COMES NOW the Appellant in the above styled and numbered caus e and
files this Motion for Pro Se Access to the Appellate Record

. I. Appellant’s appointed counsel has filed a motion to withdraw and brief in support of the motion, pursuant to Anders v. California , 386 U.S. 738 (1967).
II. The undersigned Appellant wishes to exercise his right to review the appellate record in preparing his pro se response to the Anders brief that court

appointed counsel has filed. T he undersigned Appellant now moves this Court to provide him with free, pro se access to the appellate record , including the clerk’s record and reporter’s record

. See Kelly v. State , 436 S.W.3d 313, 318

- 19 (Tex. Crim. App. 2014)

.I II

. The und ersigned Appellant asks for a 30

- day extension of time to file his pro

se brief.
I V. This motion is address ed to the Fourth Court of Appeals, Cadena

- Reeves Justice Center, 300 Dolorosa St., Suite 3200, San Antonio, Texas 78205. This motion is delivered to the Fourth Court of Appeals by U.S. Mail, on this the _____ day of _____

___ _, 201 5

. WHEREFORE, PR EMISES CONSIDERED, the Appellant res pectfully prays that the Court grant thi s Motion for Pro Se Access to the Appellate Record. Respectfully submitted,

______________________________ George Garcia c/o Laura Garcia 507 Viendo Street San Antonio, TX 78201
APPELLANT PRO SE