IN THE

TENTH COURT OF APPEALS

No. 10-12-00343-CR

EX PARTE JOSE ANGEL ALVARADO

From the 40th District Court

Ellis County, Texas

Trial Court No. 35915-CR

MEMORANDUM OPINION

Jose Alvarado pled guilty to the offense of burglary of a building and was 

sentenced to 730 days in the state jail and a fine of $1,000. Alvarado's sentence was 

suspended and he was placed on community supervision for three years. Alvarado 

filed an application for a writ of habeas corpus pursuant to article 11.072 of the code of 

criminal procedure alleging that his trial counsel was ineffective for failing to comply 

with Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010), relating to the necessity of advising 

him of the immigration consequences of his plea of guilty. The trial court denied his 

application without a hearing. Alvarado complains that the trial court erred by denying 

his application based on ineffective assistance of counsel because "it is not clear" that 
Ex parte Alvarado Page 2

Alvarado's trial counsel properly advised him of the immigration consequences of his 

plea which rendered his plea involuntary. Because we find no error, we affirm the 

judgment of the trial court.

Standard of Review

An applicant for habeas corpus relief must prove his claim by a preponderance 

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte 

Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial 

court's order denying habeas corpus relief, we view the facts in the light most favorable 

to the trial court's ruling. See Kniatt, 206 S.W.3d at 664. We will uphold the trial court's 

ruling absent an abuse of discretion. See id. We afford almost total deference to the trial 

court's determination of the historical facts that the record supports. See Ex parte 

Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other 

grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We likewise defer to 

the trial court's application of the law to the facts, if the resolution of the ultimate 

question turns on an evaluation of credibility and demeanor. See id. 

To obtain habeas corpus relief on the ground of ineffective assistance of counsel, 

Alvarado must show (1) counsel's performance fell below an objective standard of 

reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the 

result would have been different. See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 
Ex parte Alvarado Page 3

1482, 176 L. Ed. 2d 284 (2010); Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984).

A defendant has the right to effective assistance of counsel during plea 

proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). A plea of 

guilty or nolo contendere is not voluntary if it was made as a result of ineffective 

assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012).

Inaccurate advice regarding a non-citizen client's potential deportation may 

constitute ineffective assistance. See Padilla, 130 S. Ct. at 1482. When the consequences 

are "not succinct and straightforward," counsel's duty is to advise the defendant of the 

possibility that the plea may carry a risk of adverse immigration consequences. Id. at 

1483; Moussazadeh, 361 S.W.3d at 691. When, however, federal immigration law clearly 

specifies that the defendant will be deported, counsel must affirmatively and correctly 

advise the defendant about immigration consequences of the plea. See Padilla, 130 S. Ct. 

at 1483; Moussazadeh, 361 S.W.3d at 691. If counsel fails to give the correct advice, thus 

satisfying the first prong of the test, then Alvarado would satisfy the second prong by 

showing that had he been aware of the immigration consequences, a decision to reject 

the plea bargain offered would have been rational under the circumstances. See Padilla, 

130 S. Ct. at 1485.

The 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 § 6(b) (West 2005) 
Ex parte Alvarado Page 4

(allowing the trial court in ruling on the writ to order affidavits, depositions, 

interrogatories, a hearing, or to rely upon the trial court's own personal recollection of 

events). The trial court may forego a hearing and rely upon affidavits in making its 

determination as it did in this proceeding. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.); Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. 

App.—Fort Worth 2005, no pet.). After the filing of the application and the State's 

response, the trial court ordered Alvarado's trial counsel, Vance Hinds, to file an 

affidavit in response to Alvarado's application, and Hinds did file a responsive 

affidavit.

In his application, Alvarado contended that Hinds never discussed any possible 

immigration consequences of his plea even though Hinds knew that Alvarado was not 

a citizen of the United States. Hinds stated that when he became aware that Alvarado 

was a resident alien and concerned about deportation early in his representation of 

Alvarado, he informed Alvarado that he could be deported if he was convicted of a 

felony or certain misdemeanors. At that time, Alvarado wanted Hinds to try to get his 

charge reduced to a misdemeanor. Hinds further averred that he discussed the fact that 

Alvarado would be deported if he pled guilty when they met at every pretrial 

proceeding and even verified the certainty of deportation with another attorney who 

was familiar with immigration consequences in criminal cases. Hinds also explained 

that he and Alvarado each initialed the paragraph in the written admonishments 
Ex parte Alvarado Page 5

regarding the immigration consequences required by article 26.13 of the code of 

criminal procedure because Hinds wanted to ensure that the record showed that 

Alvarado understood the ramifications of his plea.

The trial court denied the application and issued written findings of fact and 

conclusions of law based on the affidavits. In its findings of fact, the trial court found 

that Hinds was known to the trial court and is a credible person. Further, the findings 

of fact included findings that on multiple occasions Hinds informed Alvarado that he 

would be deported if he pled guilty and that Alvarado understood that fact. There 

were also findings that the written admonishments were initialed by Alvarado and 

Hinds because Hinds wanted to ensure that Alvarado understood the immigration 

consequences of his plea. At his plea hearing, Alvarado stated that Hinds had 

explained the admonishments to him and he understood them.

Because the record supports the trial court's findings of fact that Hinds gave 

Alvarado the correct advice regarding the certainty of his deportation, we cannot 

conclude Alvarado met his burden to show counsel's performance fell below an 

objective standard of reasonableness or that his plea advice fell outside the range of 

competence demanded of attorneys in criminal cases. See Strickland, 466 U.S. at 687-88; 

Harrington, 310 S.W.3d at 458. Therefore, we find that the trial court did not abuse its 

discretion in denying Alvarado's habeas application. See Kniatt, 206 S.W.3d at 664. We 

overrule Alvarado's sole issue.
Ex parte Alvarado Page 6

Conclusion

Having found no error, we affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed September 19, 2013

Do not publish

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