Affirmed and Memorandum Opinion filed June 25, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00739-CR

EX PARTE SALVADOR A. RAMOS

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1265117-A

M E M O R A N D U M O P I N I O N

This appeal is from the denial of an application for writ of habeas corpus 

based on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 

(2010). In three issues on appeal, appellant contends the trial court erred denying 

relief. We affirm.

Habeas Corpus Review

We generally review a trial court’s decision on an application for habeas 

corpus under an abuse of discretion standard of review. See Ex parte Garcia, 353 
2

S.W.3d 785, 787 (Tex.Crim.App. 2011). 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. Ex parte Richardson, 70 S.W.3d 865, 

870 (Tex.Crim.App. 2002). We consider the evidence presented in the light most 

favorable to the trial court’s ruling. Kniatt v.. State, 206 S.W.3d 657, 664 

(Tex.Crim.App. 2006). This deferential review applies even when the trial court’s 

findings are implied rather than explicit and based on affidavits rather than live 

testimony. Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex.Crim.App. 2006).

Ineffective Assistance Review

Appellant based his habeas corpus application on a denial of the effective 

assistance of counsel, which he argued rendered his plea involuntary. 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 probability that, but for counsel’s deficiency, the result of the 

proceeding would have been different. See Strickland v. Washington, 466 U.S. 

668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Salinas v. State, 163 S.W.3d 

734, 740 (Tex.Crim.App. 2005). 

When a defendant claims his plea was involuntary due to ineffective 

assistance of counsel, the defendant must show (1) counsel’s advice with respect to 

the plea offer did not fall within the wide range of competence demanded of 

attorneys in criminal cases; and (2) there is a reasonable probability that, but for 

counsel’s deficient performance, the defendant would not have accepted the offer 

and pleaded guilty or nolo contendere and would have insisted on going to trial.

See Ex parte Moussazadeh, 361 S.W.3d 684, 690-91 (Tex.Crim.App. 2012). An 
3

applicant seeking habeas corpus relief on the basis of an involuntary plea must 

prove his claim by a preponderance of the evidence. Kniatt, 206 S.W.3d at 664.

Appellant claims that he would not have pled guilty had he been provided 

with accurate information about the immigration consequences. When the law is 

not succinct and straightforward, a defense attorney need only advise a noncitizen 

client that pending criminal charges may carry a risk of deportation. Padilla, 130 

S.Ct. at 1483. If a deportation consequence is truly clear, such as when the client 

is subject to automatic deportation, the duty to give correct advice is equally clear, 

and constitutionally competent counsel must advise the client accordingly. Id. at 

1478, 1483. The defendant must prove, by a preponderance of the evidence, that 

there is a reasonable probability that, but for counsel’s advice, he would not have 

pleaded guilty and would have insisted on going to trial. Ex parte Ali, 368 S.W.3d 

827, 835 (Tex.App.—Austin 2012, pet. ref’d). Further, the defendant must show 

that a decision to reject the plea bargain would have been rational under the 

circumstances. Padilla, 130 S.Ct. at 1485.

Analysis

In his application1, appellant claimed he “was never advised by his counsel 

of any immigration consequences associated with his plea.” Appellant asserted he 

was deprived of effective assistance of counsel based on his attorney’s failure to 

investigate the immigration consequences of his plea.

 

1

For purposes of this opinion, we assume, without deciding, that the application was 

properly verified. See Tex. Code Crim. Proc. art.11.14(5) and Ex parte Rendon, 326 S.W.3d 221 

(Tex.Crim.App. 2010) 
4

Defense counsel filed an affidavit averring:

I had Mr. Ramos sign an admonishment statement which I have 

already provided to the District Attorney’s Office. Mr. Ramos signed 

the admonishment and was also provided a verbal admonishment. I 

thoroughly informed him that as a result of his plea he would be 

facing the possibility of deportation. Mr. Ramos was concerned about 

going to trial because he was not pleased with the term of probation if 

he decided to plead guilty to the offense. In addition, he was 

concerned about the financial burden that trying the case would place 

on his family. Once I provided this information to him he asked for 

further clarification of how it would affect his immigration status. I 

told him that it would affect him in that when he went to renew his 

green card he would not be able to do so, or that if he ever traveled 

outside the country he would be prevented from reentering, or that if 

he was ever arrested he would be detained by immigration. He then 

asked if there was a waiver for this crime. I informed him that there 

was no waiver. . . . I clearly remember thoroughly and specifically 

admonishing him of the immigration consequences and that the 

moment the plea was accepted, the Judge further admonishing him of 

the same. Mr. Ramos witness one if not two of his friends/relatives be 

deported for the same offense they were all charged with the night 

they were arrested prior to the entry of his guilty plea. As such, Mr. 

Ramos’ allegation that he was not properly admonishment and that he 

was aware of the consequences to the crime to which he declared 

himself before the Court to be guilty of is absurd.

The record contains a written admonishment signed by appellant the same 

day his plea was entered. The admonishment states: 

Immigration Consequences to Plea of Guilty

It has been explained to me, and I fully understand that this plea of 

guilty . . . could result in not only the loss of my legal status in the 

United States but also my deportation because I am not a United 

States Citizen.

I fully understand the immigration consequences to pleading guilty to 

the offense above and choose to plead guilty willingly, 

knowledgeably, and voluntarily.
5

The record demonstrates appellant was advised his plea of guilty might

result in deportation. Because appellant pled guilty to attempted robbery, a third 

degree felony, he was subject to automatic deportation.2 Accordingly, defense 

counsels admonitions were inadequate. See Ex parte Murillo, 389 S.W.3d 922, 

926 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (plea counsel performs 

deficiently if he mentions the possibility of deportation when the relevant 

immigration provisions are presumptively mandatory). Accordingly, we find the 

first prong of Strickland satisfied.

However, appellant has not established that he was prejudiced by counsel’s 

deficiency. Appellant was charged with robbery by bodily injury, a first degree 

felony. In exchange for his plea of guilty, the charge was reduced to the thirddegree felony offense of attempted robbery and adjudication was deferred. The 

possible range of punishment was thereby reduced from confinement for five to 99 

years or life, to confinement for two to ten years, in the event appellant failed to 

successfully complete community supervision. Defense counsel averred that 

appellant was concerned about going to trial and the financial burden it would 

place on his family. 

The record does not establish a reasonable probability that, but for counsel’s 

deficient performance, appellant would have rejected the plea agreement and 

insisted on going to trial. Because appellant has not satisfied the second prong of 

Strickland, we find the trial court did not abuse its discretion in denying his 

 

2

See 8 U.S.C. §1227(a)(2)(A)(i) (2006) (“Any alien who--(I)is convicted of a crime 

involving moral turpitude committed within five years (or 10 years in the case of an alien 

provided lawful permanent resident status under section 1255(j) of this title) after the date of 

admission, and (II) is convicted of a crime for which a sentence of one year or longer may be 

imposed, is deportable.”).
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application. Appellant’s issues are overruled and the order of the trial court is

affirmed.3

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).

 

3

It is unnecessary to address the State’s request to reform the judgment to correct clerical 

errors as appellant’s supplemental reply brief acknowledges the trial court has already done so.