### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00215- CR

Salvad or Sim on, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 09- 2006 00- A, H ONO RAB LE CLIF F ORD A. B ROW N, JUDGE P RESIDING

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

I n 2009, appellant Salvador Simon pleade d g uilty t o committing the misdemeanor offe nse of attempted possession of a controlled substance and was place d on community supervision for a period of two y ear s. I t is rele vant to this appea l that Simon is an undocumented immigra nt—he

was arr ested by I mmigra

tion and Customs Enforc ement (I CE) in 2016, detained without bond as a result of his 2009 conviction, and subjected to remova l proce eding s. Simon subsequently filed an 1 application for writ of habea s corpus, challeng ing the leg ality of his 2009 conviction by asser ting that he had rec eived ineffe ctive assistance of counsel prior to pleading g uilty

. Following a hear ing, the district court denied relief

. I n two rela ted points of err or on appea l, Simon asser ts that counsel had “af firmatively misadvised” him of the immigra tion conseque nces of his g uilty plea and that Simon suffe red pr ejudice a s a re sult. W e will aff irm the order

deny ing r elief.

See 8 U.S.C. §§ 1182(a)(2) (A)( i), 1227(a) (2)( B) (i). 1BACK GR OUND The recor d ref

lects t hat S imon had ini tia l l y b ee n char g ed with coca ine pos session,

a felony offe nse. Acc ording to the arr esting office r’s probable -ca use aff idavit, a copy of which was attache d to Simon’s habe as application, the coca ine had been found inside Simon’s vehicle during
a tra ffic stop, in a box of condoms locate d inside the g love box.

At the habea s hear ing, Simon testified that prior to pleading g uilty , he had spent approximately three to four minutes talk i n g to his appointed trial counsel, Antonio Wehnes. Acc ording to Simon, Wehnes did not discuss the specific fa ct s o f t h e case with him. Simon also claimed that he had told Wehnes that the coca ine did not belong to him and that Wehnes “didn’t ask [hi m] any more que stions” after

that.
A copy of the transcr ipt of the plea hear ing was attached t o Simon’s habea s application. The rec ord re flec ts that during tha t proce eding , the following occur red:
[The court]: Are y ou Salvador Simon, who is charg ed in this case? [S imon] : Yes. [The c ourt]: Do y ou understand y ou’re char g ed by indictment with posse ssion of

a controlled substance, coca ine, in an amount of less then one g ram? [S imon] : Yes.

. . . . [The court]: The State ha s an ele ction here ? [P rosec utor]: Yes, Your Honor. We’ll proce ed on a lesser included, a misdemea nor of attempted posse ssion of a controlled substanc e. [The court]: How do y ou plead to that lesser offe nse?

2[S imon] : Guilty

.

. . . . [The court]: I s y our g uilty plea g iven fre ely

and voluntarily ? [S imon] : Yes. [The court]: I s it? [I nterpre ter]: He sa id y es. [The court]: Ok ay . Do y o u u n d erstand the punis h m en t ra n ge fo r a C l as s A

misdemeanor offe nse as it is set out in Stat e’ s E x hibit 1, the plea paper s I ’m showing y ou? [S imon] : Yes. [The court]: Do y ou understand a ll of y our rig hts and the waiver s of rig hts as set

out in St ate’ s Ex hibit 1? [ ] 2 [S imon] : No. [W ehnes]: L et me try , Your Honor

. (Whereupon a conver sation in Spanish occur red betwee n defe nse counsel an d defe ndant.)[ ]

3 [S imon] : Yes. [The c ourt]: Gre at. You do understand all of y our rig hts and waiver s of rig hts as

set out in St ate’ s Ex hibit 1?

State’s Exhi bit 1, the plea agr eeme nt, included the following a dmonishment: “I f y ou are 2 not a citizen of the United States of Americ a, a plea of g uilty or nolo contende re for this offe nse may result in y our deporta

tion, y our exclusion from admission to this country , or y our d en i al of natura liz ation under f

eder al law.” Simon testified that during this conver sation, Wehnes had told him that “whe n the J udg e 3 asked me that I should say y es.” Simon also testified that Wehnes had told him “just to say y es to ever y thing” that the cour

t asked. 3[S imon] : Yes.

[The court]: Did y ou g o over these rig hts and t h e wa i v er s o f ri gh t s i n S tate’s

Ex hibit 1 with y our attorne y , Mr. Wehnes? [S imon] : Yes. [The court]: And that was in the Spanish lang uag e, cor rec t? [S imon] : Yes. [The court]: Mr. Wehnes, y ou speak Eng lish and Spanish, corre ct? [W ehnes]: Yes, Judge.

. . . . [The court]: What is t he re commendation? [P rosec utor]: One y ear

of proba tion, two y ear s of communi ty supervision, pay all fines and complete 100 hours of community service restit u t i o n , restitution, pay

$600 and complete counseling

. [The court]: Mr. Si m o n , i s t h at y o u r u n d er s t an d i n g o f t h e agr ee m ent y ou’ve

rea ched in this ca se? [S imon] : Yes. [The court]: And have y ou discussed this ag ree ment with Mr. Wehnes? [S imon] : Yes. [The court]: And y ou’re satisf i ed wi th the recommendation he has provided y ou on this case? [S imon] : Yes. [The court]: And y ou’ve had sufficie nt time— we l l , h e’ s h ad s u ff icient time to repr esent y ou? [S imon] : Yes.

4[The court]: I ’l l fo l l o w t h e re co m m en d ati on. I find y ou gu i l t y o f at t em p t ed possession of a controlled substance, coca ine, in an amount of less than one gr am, a Class A misdemea nor. Do y ou have a

ny thing e lse to say befor e we proce ed with sentenc ing? [S imon] : Can Ileave the country , beca use I was a bout to depart for

— [The court]: Have y ou talked to him, Mr. Wehnes? [W ehnes]: Yes. I

told him t o come talk to me this wee kend. [S imon] : Yea

h, I ’m g oing to talk to him.[ ] 4 [The court]: I s en t en ce y o u t o confine ment in jail for one y ear and a $600 fi n e.

The jail sentenc e is suspende d

. Yo u ’re now place d on community supervision for two y ear s. . . . Do y ou have a ny questions? [S imon] : No. [The court]: Okay . Good luck to y ou, Mr. Simon.

Simon testified t hat he had pleaded guilty beca use W ehnes had to l d h i m t hat i f he pleade d g uilty , then he “wouldn’t g o to jail.” Simon further testified that Wehnes had told him “that it was all g oing
to work out.” On cross-examination, Simon acknow ledg ed that at the time of his plea, he wa nted
to avoid a jail sentenc e. Additionally , when t he S tate asked Simon if he was “happy that [he] g ot probation on this case on a misdemeanor instead of fac ing possible jail or a possible felony ,” Simon

answe red in the a ffirma tive.

I n an aff idavit that was attache d to his habeas application, Simon made additional alleg ations, including that Wehnes knew at the time of the plea hear ing that Simon was from Mexi co

Simon testified that he did not talk with Wehnes that wee kend or at any time following the 4 plea he aring

. 5and was not a United States citizen; that Wehnes “neve r mentioned immigra tion conseque nces” and

“neve r told [S imon] that [he] should consult with an immigra tion attorney ”; and that “[n] either the judge n o r [ Wehnes] war

ned [S imon] that this would bring [hi m] immigra tion problems.” Simon also asser ted that Wehnes’s failure to war n him of immigra tion conseque nces “led [hi m] to believe that this ag ree ment would not affe ct [his] immigra tion possibi lities.”

Wehnes also testified at the habea s hear ing. Wehnes rec ounted that when he was assig ned to Simon’s case , he knew that Simon was an undocumented immigra nt and was awa

re of the coll ater al conseque nces that apply to undocumented immigra nts who are convicted of drug crimes, including deporta tion. Although Wehnes did not have a specific rec ollection of the events that occur red at Simon’s plea hear ing, he was able to r eca ll his standard proce dure in similar plea

barg ain case s at the time. Wehnes explained that he would revie w with his Spanish-speaking clients the rig hts and waiver s specifie d in the plea paper work, including the rig ht to a j u ry t ri al an d the admonishment to non-citizens of t he potential immigr ation conseque nces of a g uilty plea. When 5 asked about Simon’s contentions that Wehnes had “ told him t o just say y es to whate ver the J udg e tells him,” “didn’t ex plain any thing to him,” and “didn’t answe r hi s questions,” W ehnes testified, “No, t h at does not sound rig ht to me.” The State also elicited testimony from Wehnes that his

s tandar d prac tice included informing his non-citizen clients that drug convictions had defin i t e immigra tion consequenc es:
Q: I wa n t t o as k y ou, the defe ndant say s that y ou didn’t g o over an y o f h i s immigra tion conseque nces with him. I know y ou testified that y ou wer e

See supra n.2. 5 6awa re at the time of 2009, that any kind of drug case was a perma nent sever e immigra tion consequenc e, cor rec t? A. Correc t. Q. Would y ou have g one over that with a client fr om L atin Americ a? A. Well, in the plea forms, it say s “may ” have conseque nces. I alway s say , y ou are never g oing to be able to if it’s a drug case . The “may ” I fee l i s totally inappropria te in this ty

pe of ple a. Q. So y ou tell clients that there w ill be immi g ration conse quence s? A. Totally

.

At the conclusion of the habea s hear ing, the district court denied relief and later made finding s of fac t an d co nclusions of law, including that Simon’s testimony was not cre dible, that Wehnes ’s t estimony was credible, and that counsel’s perfor mance was not defic ient. This appea l followed.

STANDARD OF REVIEW

I n revie win g a trial court’s decision to g rant or deny habea s corpus relief, we vi ew the fac ts in the light most favor able to the trial court’s ruling and uphold that ruling absent an abuse of discretion. A trial court abuses its discretion when it acts arbitra rily or unrea sonably , or without 6 ref ere nce to any g uiding rules or principles. We are not to reve rse the trial court ’s ruling unless 7

See Ex parte Gill , 413 S.W .3d 425, 4 2 8 (T ex . Crim. App. 2013); Ex parte W heele r , 6 203 S.W .3d 317, 324 (Tex. Crim. App. 2006); Ex p a r t e A li , 368 S.W .3d 827, 830 (Tex. App.—Austin 2012, pet. ref ’d). State v. Simpson , 488 S.W .3d 318, 322 (Tex. Crim. App. 2016); Ali , 368 S.W .3d at 830. 7 7the decision “is so clea rly wrong as to lie outsid e that zone within which rea sonable persons might disag ree .” 8

“An applicant for a post-conviction writ of habea s corpus bear s the burden of proving his claim by a preponde ranc e of the evidenc e.” I n habea s corpus proce eding s, “[v] irtually ever y fac t 9 finding involves a cre dibilit y deter mination” and “the fac t finder is the exclusive judge of the

cre dibilit y of the witnesses.” Thus, we are to aff ord almost total defe renc e to a trial court’s fac tual 1 0 finding s when supported by the rec ord, espec ially when those finding s are based upon cre dibilit y and demea nor. We aff

ord t he same amount of defere nce to the t rial court’s application of the law to 1 1 the fac ts, to the extent that the resolution of the ultimate question turns on an evalua tion of cre dibilit y and deme anor. 1 2

ANALYSIS

I n two rela ted poi nts of error, Si mon asser ts that he rece ived i neff

ective assi s t an ce of counsel prior to pleading g uilty and that the district court abused its discretion in deny ing habea s

Balderas v. State , 517 S

. W

. 3 d 7 5 6 , 798 (Tex. Crim. App. 2016); Robisheaux v. State , 8 483 S.W .3d 205, 217 (Tex. App.—Austin 2016, pet. ref ’d). Ex parte Torres , 483 S.W .3d 35, 43 (Tex. Crim. App. 2016) (citing Ex parte Richardson , 9 70 S.W .3d 865, 870 (Tex. Crim. App. 2002)). Ex parte Mowbray , 943 S.W .2d 461, 465 (Tex. Crim. App. 1996); Ali , 368 S.W .3d at 830. 1 0 Ex parte Garc ia , 353 S.W .3d 785, 787 (Tex. Crim. App. 2011). 1 1 Ex parte Peterson , 117 S.W .3d 804, 819 (Tex. Crim. App. 2003) (per curia m), overruled 1 2 in part on other grounds by Ex parte Lewis , 219 S.W .3d 335, 371 (Tex. Crim. App. 2007). 8reli ef fo r t h at rea son. The two-part Strickland v. W ashington test applies t o challeng es t o g uilty 1 3 pleas based on ineffe ctive assistance of counsel. Under the first prong of the test, “a habeas 1 4 applicant must show, by a preponde ranc e of the evidenc e, that ‘counsel ’s p er fo rmanc e was defic ient.’” I n other words, “[t] he applicant must show that counsel’s perf ormanc e failed to satisfy 1 5

an objective standard of rea sonablene ss under preva iling profe ssional norms.” “A revie wing court 1 6

must assess rea sonablene ss under the circ umstances of the particula r case ‘viewe d as of the time of counsel’s conduct.’ ” “The presumption is that counsel ‘re ndere d adequate assistance and made all 1 7 signific ant decisions in the exercise of rea sonable profe ss i o n al j u d g ment.’” “An applicant who 1 8

cannot overc ome this presumption by a preponde ranc e of the evidenc e will not succe ed in his Six th Amendment cla im.” 1 9

Under the second prong of the Strickland test, the applicant “must show that there is

a rea sonable probability that, but for cou n s el ’s u n profe ssional err ors, the result of the proce eding would have been diffe re n t.” “A rea sonable probability is a probability sufficie nt to undermine 2 0

See U.S. Const. amend. VI

. 1 3 H il l v
. Lo c k h a r t , 4 7 4 U

. S. 5 2 , 5 7

– 5 9 ( 1 9 8 5 ) ( c it in g S tr ic k la n d v
. W a s h in g to n , 4 6 6 U

. S. 6 6 8 , 1 4 687–88, 694 (1984)) ; Ali , 368 S.W .3d at 830.

Ex parte Bowman , 533 S.W .3d 337, 349 (Tex. Crim. App. 2017) (quoting St r i ckland , 1 5 466 U.S. at 687; Lopez v. State , 343 S.W .3d 137, 142 (Tex. Crim. App. 2011)).

Id . at 349–50. 1 6 Id . at 350 (quoting Strickland , 466 U.S. at 688, 690). 1 7 Id

. 1 8 Id

. 1 9 Strickland , 466 U.S. at 694. 2 0 9confide nce in the outcome.” “I n the context of a collater al challeng e to a g uilty plea, the focus of 2 1 the prejudice inquiry is on ‘whe ther counsel’s constitutionally ineffe ctive perf ormanc e aff

ecte d the
outcome of the plea proce ss,’ and on whether a defe ndant has shown that ‘but for counsel’s err ors, he would not have pleade d g uilty and would have insisted on going to trial.’” 2 2
Deficient perform ance

Simon’s specific complaint on appea l is th a t Wehnes “af

firmatively misadvised” him of the immigra tion conseque nces of his g uilty plea. “I n Padilla v. Kentucky , the Supreme Court held that the S ix th Amendment requires an attorney for a criminal defendant to advis e his client of the risk of ‘automatic’ deporta tion as a conseque nce of a g uilty plea.” “B ut Padilla announce d a new 2 3 rule, so it does not apply retroa ctively to the collater al revie w of a state criminal conviction that was final when the Padilla opinion was issued in 2010.” Be cause Simon’s conviction beca me final in 2 4 2009, Padilla does not apply here

. 2 5
Ho we v er, the Court of C riminal Appea ls has recently held, consist ent wit h Un i t ed States Supreme Court prec edent, that a defenda nt whose conviction beca m e fi n al p rior to Padilla
may non etheless bring a claim that his trial counsel “af firmatively misadvised” him of the

Id

. 2 1 Torres , 483 S.W .3d at 43 (quoting Hill , 474 U.S. at 59). 2 2 State v. Guerrero , 400 S.W .3d 576, 587 (Tex. Crim. App. 2013) (citing 559 U. S

. 3 56, 2 3 367–68 (2010))

.

Id . (citing Ex parte De

Los Reyes , 392 S.W .3d 675, 679 (Tex. Crim. App. 2013)). 2 4 See De Los Rey es , 392 S.W .3d at 679 (citing Chaidez v. United States , 568 U.S. 342, 358 2 5 (2013))

. 10immigra tion conseque nces of his g uilty plea. I n other words, even prior to Padilla , “whe n [an] 2 6 attorney rende red immigra tion advice , which he was under no obliga tion to rende r, he had a duty to
state the law corr ectly .” Stating the law incorre ctly , i.e., providing “af firmative misadvice,” may 2 7
g ive rise to a c og nizable claim for inef fec tive assistance of counse l independent of Padilla

. 2 8
As an initial matter, the State arg ues that Simon waived his “af firmative misadvice” claim in the court below. At the beg inning of the h ab ea s h earing , the State and the district court asked Simon to clar ify the nature of his complaint. The rec ord ref lects that the following occur red:
[S tate]: I just wanted to clar ify with the Applicant. I b el i ev e t h at the two

g rounds t h at we re raised in the writ was that trial counsel didn’t ex plain immigra tion conseque nces and that trial counsel didn’t t al k about the possible illeg al sea rch [of Simon’s vehicle ]. 2 9

See Ex parte Garcia , 547 S.W .3d 228, 2018 Tex. Crim. App. L EXI S 132, at *4–5 (Tex. 2 6 Crim. App. May

9, 2018) (c iting Lee v. U nited States , 137 S. Ct . 1958 (2017))

. See id

. 2 7 See id

. (citing Ex parte Moussazadeh , 361 S.W

. 3 d 6 8 4 , 6 91 (Tex. Crim. App. 2012); 2 8 State v. Re cer , 815 S.W .2d 730, 731 (Tex. Crim. App. 1991)).

I n h i s habea s application and at the hear ing, Simon also arg ued that counsel was 2 9 ineffe ctive for failing to file a motion to suppress the coca ine that was found in the vehicle’ s g love box following Simon’s arr est. See Arizona v. Gant , 556 U.S. 332, 351 (2009) (re stricting scope of automobile sear ches incident to arr est t o ar ea s of vehicle that are “within rea ching distance” of arr estee ). To the extent that Simon has car ried forwa

rd this arg ument on appea l, we observe , as did the court below, that Gant was decide d afte r Simon had pleade d g uilty , and it is well established that counsel should not be decla red ineffe ctive when counsel’s claimed err or is based on unsettled law. See, e.g. , State v. Benne tt , 415 S.W .3d 867, 869 (Tex. Crim. App. 2013); Ex parte Chandler , 182 S.W .3d 350, 358–59 (Tex. Crim. App. 2005); Ex parte W elch , 981 S.W .2d 183, 184 (Tex. Crim. App.1998); see also Ex parte Martinez , No. 03-15-00334- CR, 2016 Tex. App. L EXI S 9905, at *8–9 (Tex. App.—Austin Aug

. 31, 2016, no pet.) (mem. op., not desig nated for publication) (“A lthough ‘[i] g noranc e of well-de fined g ener al laws, statutes and leg al propositions is not excusable and such ignor ance may lead to a finding of constitution ally defic ient assistance of counsel,’ the ‘spec ific leg al proposition must be “we ll considere d and clea rly define d.”’” (q u o ting Chandler , 182 S.W .3d 11My understanding today

is, that what we’ re rea lly g oing to f

ocus on is counsel’s investig ation or discussion of defe nses and not w hether or not he advised his client about immigra tion conseque nces. I just want to g et t hat on the record. I s that true that that’s the ground we are here for? [S imon] : That’s c orre ct. [S tate]: So it’s not a Padilla claim? I t’s not an immigra tion claim any more? [The court]: S o i t has nothing to do with Padilla , particula rly , with not so much the failure to g o over with him immigra tion conseque nces. I think the rec ord in that respe ct spea ks for itself.
But with respe ct to any misadvice that was g iven to him that is not ref lected in the rec ord, is t h at s o m et hing that y ou want to g o over here ? [S imon] : Your Honor, rea lly the only way immigra ti o n , wh i ch is a collate ral

conseque nce, play s into this is that t h at ’s t h e rea son he is here

. He waited seven y ear s only beca use it was when immigra tion picked him up on a sepa

rate matter that it was put in his fac e that he had a drug conviction. S o it’s a permanent infirmit y for immigr ation to have a drug cr i m e. He can never immigra te and he is perma nently barr ed from this country

. S o now that’s a collater al conseque nce that Mr. Wehnes, bec ause it wa s pre- Padilla , didn’t have the duty to expl ain immigra tion consequenc es. B ut immig ration does play into why he is here toda

y . [The court]: Okay

. You can proce ed how y ou would like to, and then I ’ll take up

all of the issues as the y

arr ive.

At no point during the habea s hear ing did Simon arg ue that Wehnes had “af firmatively misadvised” him of the immigra tion conseque nces of his g uilty plea. Addition al l y , at the conclusion of the hear ing, the district court stated that althoug h “the orig inal writ wa s really about whether or not

at 358)). 12[S imon] was g iven immigra tion war nings and told of im m i gra t i on conseque nces,” the court was “ not going to addre ss that beca use y ou’ve w ithdrawn that issue.” Simon di d not obje ct to the district c ourt’s decision. Acc ording ly , we a g ree with the State that Simon waived this issue in the court be low. 3 0
Moreove r, even if the issue had been prese rved, we could not conclude on this rec ord that the district court abused its discretion in failing to fi n d t h at Wehnes had “af firmatively misadvised” S imon. As discussed above, “af firmative mis advice ” claims apply to case s in which counsel misstated the law. The district c ourt would not have abused its discr etion in f inding that 3 1 Wehnes made no such misstatements, at least none that wer e ref lected in the rec ord. I n contending that Wehnes had af

firmatively

misadvised him, Simon pla ces signific ance on Wehnes’s statement during the pl ea colloquy that he had told Simon “to come talk to [ him] this wee kend” in response
to Simon asking the court if he could “lea ve the country .” Howeve r, as the State observe s, “it is not clea r that this exchang e had any thing to do wi t h immigra tion at all,” as Simon may have been inquiring as to some matter other than immigra tion conseque nces, such as any trave l restric tions that he might fac e while on probation. Bu t ev en if Simon’s question conce rned the immigra tion

See Tex. R. App. P. 33.1(a) ; W ilson v. State , 71 S.W .3d 346, 349 (Tex. Crim. App. 2002); 3 0 Ex parte Roldan , 418 S.W .3d 143, 146 n.3 (Tex. App.—Houston [14t h Dist.] 2013, no pet.). See, e.g. , Lee , 137 S. Ct. at 1963 (def endant “re peate dly asked [counsel] whether he would 3 1 fac e deporta tion as a result of the criminal proce eding s”; counsel advised defe ndant incorre ctly that

“ h e w o u ld n o t b e d e p o r

te d a s a r e s u lt o f p le a d in g g u il ty ” ) ; G a r c ia , 2 0 1 8 T e x. Cr im

. A p p . L E X I S 1 3 2 , at *1 (“ Gar cia a sked his attorney whether there would be adve rse immigr ation conseque nces if he took the plea offe r beca

use he was a lawful perma nent resident, and counsel responde d that he ‘would probably be okay ’ and that ‘the char g e would probably not result in deporta tion.’”); Ex parte Arjona , 402 S.W .3d 312, 316 (Tex. App.—B eaumont 2013, no pet.) (counse l “volunteer ed advice ” to defe ndant on possible immigra tion consequenc es of plea ding g uilty ). 13conseque nces of his plea, it would not be outside the zone of rea sonable disag ree ment for the district

court to have found that t h e ab o v e exchang e sug g ested, at most, a failure to advise Simon of immigra tion conseque nces. And ag ain, any such failure wou l d n o t h ave constituted ineffe ctive assistance of counse l prior to Padilla

. 3 2

Simon also place s signific ance on his testimony that Wehnes had told him, during the plea hear ing, “that it was all g oing to work out.” I t would not be outside t h e z o n e of rea sonable disag ree ment for the district court to have found that this statement was ambig uous and that Wehnes

was ref err ing to something other than immigra tion conseque nces, such as Simon rec eiving pr obation instead of a jail se ntence if he plea ded g uilty . Moreove r, Wehnes testified that it was his standa rd
prac tice in simil ar plea- barg ain case s to revie w with his Spanish-speaking cli en ts the rig hts and waiver s specifie d in the plea paper work, including the deporta t i o n co nsequenc es for non-citizens convicted of drug crimes

. T he district court would not have abused its discretion in finding that Wehnes had likely followed that prac tice in Sim on’s ca se and ha d war ned him of the immigr ation
conseque nces of his g uilty plea. The district court found Wehnes’s testimony cre dible and Simon’s testimony not cre dible, and we are to defe r t o t h ose cre dibilit y deter minations. Additionally , we observe that in Simon’s aff idavit, he stated that Wehnes “neve r mentioned immigra tion
conseque nces,” which is contra ry to Simon’s claim that Wehnes had “af firmatively misadvised” him of those conseque nces. W e co nclude that the rec ord supports a finding by the district court that Simon failed to prove by a preponde ranc e o f the evidenc e that Wehnes had “af firmatively

See D e Los Reye

s , 392 S.W .3d at 679. 3 2 14misadvised” him of the immigra tion conseque nces of his g uilty plea, and the district court would not

have a bused its discretion in deny ing Simon’s habe as applica tion for that re ason. 3 3

P rej udi ce The district court also would not have abused its discretion in finding that Simon had failed to prove prejudice

. Ag ain, “whe n a defe ndant claims that his counsel’s defic ient perf ormanc e deprive d him of a trial by causing him to acc ept a plea, the defe ndant can s h o w prejudice by demonstrating a ‘re asonable probability that, but for counsel’s err ors , he would not have pleade d
g uilty and would have insisted on g oing to trial.’” Stated another way , he “must convince the court 3 4 that a decision to reje ct the plea barg ain would have bee n ra t i o n al under the circ umstances.” 3 5 “Courts should not upset a plea solely beca use of post hoc assertions from a defe ndant about how he would have pleade d but for his attorney ’s defic iencies.” “Judge s should instead look to 3 6 contempora

neous evidence to substantiate a defe ndant’s expressed pref ere nces.” Fa ctors to

3 7 consider in the analy sis include “the ev i d en ce s u pporting an applicant’s assertions, the l ikelihood

See Roldan , 418 S.W .3 d at 147–48; see also Ex parte Brumant , No. 14-15-00337- CR, 3 3 2015 Tex. App. L EXI S 10490, at *10–11 (Tex. App.—Houston [14 t h Di s t .] Oct. 13, 2015, pet. ref ’d) (mem. op., not desig nated for publication) (re jecting simil ar aff

irmative-misadvice claim); Ex parte Tavakkoli , No. 09-13-00082- CR, 2013 Tex. App. L E XIS 11989, at *18–20 (Tex. App.—B eaumont Sept. 25, 2013, pet. re f’d) (mem. op., not desig nated f or publication) ( same). Lee , 137 S. Ct . at 1965 (quoting Hill , 474 U.S. at 59). 3 4 Padilla , 559 U.S. at 372 (citing Roe v . Flores-Ortega , 528 U.S. 470, 480 (2000)). 3 5 Lee , 137 S. Ct . 1967. 3 6 Id

. 3 7 15of his succe ss at trial, the risks the applicant would have fac ed at trial, the benef its rec eived from the plea ba rg ain, and the tr ial court’s a dmonishments.” 3 8
I nitially , we observe that the rec ord ref lects that Simon was an undo cu m en t ed immigra nt at the time of his plea hear ing. There fore , unlike the defe ndants in Padilla and Lee , who

wer e lawful perma

nent residents at the time of their hear ings and thus not subject to deporta tion until afte r they had pleade d g uilty , Simon could have been deporte d even if he had g one to trial and been acquitted. The district court would not have abused its discretion in finding that Simon’s status as

3 9

an undocumented immigra nt who was alre ady subject to remova l made it les s likely that the “prospe ct of re moval” would “r easona bly have a ffe cted his dec ision to . . . pl ead g uilty .” 4 0
Moreove r, i t would not have been outsi de the zone o f rea sonable disagr eeme nt for the district court to have found that Simon’s likelihood of succe ss at trial was low. Although Simon claimed that the coca ine that was found in his ve hicle did not belong to him, the arr esting office r’s probable -ca

use af fidavit indicated tha t “Simon was the only occupa nt of t he vehic le and ha d car e, custody , and control of the vehicle” at the time the office r had found coca ine inside the g love box

. Also, Simon had been char g ed with coca ine possession, a felony offe nse. I f convicted, Simon would have fac ed up to two y ear s in state jail and a $10,000 fine. But beca use of the plea ag ree ment, the 4 1

Torres , 483 S.W .3d at 48. 3 8 See Guerrero , 400 S.W .3d at 588–89 (conc ludi n g th a t even if defe ndant, an undocumented 3 9 immigra nt, ha d “g one to tr ial . . . and bee n acquitted[,] he would not have bee n transfor med into a leg al resident” ; instead, [h] e could have been deporte d immediately afte r walking out of the criminal courthouse” ).

See id . at 589. 4 0 See Tex. P enal Code § 12.35. 4 1 16char g e was reduc ed to a misdemeanor and Simon was place d on community supervision instead of

serving jail time. Simon testified at the habea s hear ing that he wanted to avoid a jail sentenc e at the time he pleade d g uilty , and when the State asked Simon if he was “happy that [he] g ot probation on this case on a misdemeanor instead of fac ing possible jail or a possible felony ,” Simon answe red in the af firmative. Additionally , Wehnes testified t hat i n his experience , at the time of Simon’s plea hear ing, immigra

tion officia ls “we re deporting people all the time when they repor ted to probation

on a felony ,” but “if y ou wer e able to g et o u t o f the Courthouse with a misdemeanor, probation would not repor

t y ou to immigra tion.” Thus, the district court would not have abused its discretion in finding that in addition to avoiding jail time, another benef it of the plea barg ain was the possibili ty that Simon would not be re ported to immigra tion officials at that time.
I n summary , as an undocumented immigra nt, Simon was alre ady subject to deporta tion even bef

ore he pleade d g uilty , which would support a finding by the district c ourt that the risk of deporta

tion would not rea sonably have aff ecte d Simon’s plea decision. The rec ord would also support finding s by the district court that Simon’s likelihood of succe ss at trial was low, that the ri s k s Simon would have fac ed at trial wer e si g nificant, and that the benefits Simon rec eived fr o m the plea barg ain wer e substantial. Acc ording ly , it would not have been o u t s i d e the zone of

rea sonable di s agr ee m en t for the district court to have found that Simon failed to prove, by a preponde ranc e of the evidenc e, that there was a rea sonable probability that, but for counsel’s alleg ed

err ors, he would not have pleaded guil t y an d woul d have insist ed on g oing to trial. For this and 4 2

S ee T o r r es , 483 S.W .3d at 49–51; Guerrero , 400 S.W .3d at 588–89; Ex parte Luna , 4 2 401 S.W .3d 3 2 9 , 3 3 5

– 3 6 (Tex. App.—Houston [14t h Dist.] 2013, no pet.); Ali , 368 S.W .3d at 840–41. 17other re asons discussed a bove, we cannot conclude on this rec ord t hat t he district cour t abused its discretion in deny

ing Simon’s applica tion for writ of ha beas c orpus. We overrule Simon’s first and second points of er ror.

CONCLUSION We affir m the district court’s orde r.

___________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Rose, Jus tices Pemberton a nd Goodwin Affir med Filed: Jul y

19, 2018 Do Not Publish

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