Opinion filed November 21, 2019

In The

Eleventh Court of Appeals 

__________

No. 11-19-00223-CR

__________

EX PARTE ROGELIO VILLEGAS DOMINQUEZ

On Appeal from the 32nd District Court

Nolan County, Texas

Trial Court Cause No. 12318

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

Appellant, Rogelio Villegas Dominquez,

1

appeals from the denial of his

application for writ of habeas corpus. We affirm.

Background Facts

Appellant seeks habeas corpus relief from a 2018 judgment of conviction for

the third-degree felony offense of bail jumping and failure to appear. The record 

reflects that Appellant entered into a plea agreement in which he agreed to plead 

 

1We note that the spelling of Appellant’s name on the application for writ of habeas corpus and 

some of the other documents in the clerk’s record is “Dominguez” but that the spelling is “Dominquez” on 

the order denying habeas relief, the indictment, and the judgment of conviction from which habeas relief is 

sought.
2

guilty to the offense of bail jumping and failure to appear in exchange for the State’s 

agreement to dismiss a pending case against Appellant for the offense of possession 

of methamphetamine and to recommend that Appellant’s punishment for the bailjumping offense be assessed at eight years’ confinement—probated for two years—

plus a fine of $1,000. The trial court admonished Appellant, accepted his plea, found 

him guilty, and assessed his punishment in accordance with the terms of the plea 

agreement. After the conviction was added as a charge in immigration removal

proceedings against Appellant, he sought habeas corpus relief pursuant to 

Article 11.072. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2015). 

Appellant asserted in his Article 11.072 application that he received ineffective 

assistance of counsel with respect to the advice of his trial counsel regarding 

deportation and that he would have rejected the plea bargain and gone to trial instead 

of pleading guilty if his attorney had properly advised him of the consequences of 

his plea.

Analysis

In his sole issue on appeal, Appellant asserts that the trial court abused its 

discretion when it denied his application for writ of habeas corpus. Appellant 

contends that his plea was involuntary due to the ineffective assistance of trial 

counsel because trial counsel failed to correctly advise Appellant about the 

deportation consequences of his plea. Appellant relies upon Padilla v. Kentucky and 

its progeny as support for his contention. See Padilla v. Kentucky, 559 U.S. 356 

(2010).

In Padilla, the Supreme Court held that “counsel must inform her client 

whether his plea carries a risk of deportation.” Id. at 374. The Court determined 

that trial counsel may render ineffective assistance based upon counsel’s advice, or 

lack thereof, concerning the deportation consequences of a guilty plea; the Court 
3

stated that, when such consequences are “truly clear,” counsel’s duty to advise the 

defendant regarding those consequences is “equally clear.” Id. at 369. The Court 

emphasized that the severity of deportation “underscores how critical it is for counsel 

to inform her noncitizen client that he faces a risk of deportation.” Id. at 373–74.

The Court observed that the “drastic measure” of deportation “is now virtually 

inevitable for a vast number of noncitizens convicted of crimes.” Id. at 360 (quoting 

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (first quote)).

Under federal immigration law, a noncitizen “who is convicted of an 

aggravated felony at any time after admission is deportable.” 8 U.S.C. 

§ 1227(a)(2)(A)(iii). The offense to which Appellant pleaded guilty is an aggravated 

felony as defined by federal immigration law. Id. § 1101(a)(43)(T) (defining 

“aggravated felony” to include “an offense relating to a failure to appear before a 

court pursuant to a court order to answer to or dispose of a charge of a felony for 

which a sentence of 2 years’ imprisonment or more may be imposed”).

When an application for writ of habeas corpus is filed pursuant to 

Article 11.072, the trial court is the sole factfinder. Ex parte Torres, 483 S.W.3d 35, 

42 (Tex. Crim. App. 2016) (citing State v. Guerrero, 400 S.W.3d 576, 583 (Tex. 

Crim. App. 2013)). We review the trial court’s ruling for an abuse of discretion. 

Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An appellate court

must afford almost total deference to the trial court’s factual findings when those 

findings are supported by the record. Torres, 483 S.W.3d at 42.

To demonstrate that he is entitled to postconviction relief on the basis of 

ineffective assistance of counsel, an applicant must prove by a preponderance of the 

evidence both (1) that counsel’s performance was deficient, i.e., that it fell below an 

objective standard of reasonableness, and (2) that the applicant was prejudiced as a 

result of counsel’s errors. Id. at 43; see Strickland v. Washington, 466 U.S. 668, 
4

687, 693 (1984). In the context of an Article 11.072 challenge to a guilty plea, the 

focus of the second prong of Strickland—the prejudice inquiry—is on “whether 

counsel’s constitutionally ineffective performance affected the outcome of the plea 

process” and whether the applicant has shown that, but for trial counsel’s errors, the

applicant would not have pleaded guilty and would have insisted on going to trial.

Torres, 483 S.W.3d at 43 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Under 

the prejudice inquiry in a Padilla situation, the applicant must “convince the court 

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

circumstances.” Id. at 48 (quoting Padilla, 559 U.S. at 372). The Texas Court of 

Criminal Appeals noted in Torres that various factors have been considered by 

courts when addressing the prejudice inquiry in a Padilla situation, including the 

evidence supporting an applicant’s assertions, the likelihood of his success at trial, 

the risks the applicant would have faced at trial, the benefits received from the plea 

bargain, and the trial court’s admonishments. Id. (citing United States v. Kayode, 

777 F.3d 719, 725 (5th Cir. 2014)).

After Appellant filed the application for writ of habeas corpus in the trial 

court, the trial court requested that Appellant and his trial counsel submit affidavits 

to the trial court. See CRIM. PROC. art. 11.072, § 6(b). Appellant averred in his 

affidavit that he had met trial counsel for the first time on the day of the guilty plea; 

that Appellant had explained to trial counsel the circumstances surrounding his 

failure to appear in court, including his excuse that his truck had broken down on the 

way to the courthouse; that Appellant had expressed concern about his immigration 

status; and that Appellant had informed trial counsel that Appellant’s priority was to 

stay in the United States. Appellant claimed that his trial counsel said that there 

would be no immigration consequences from accepting the plea deal offered by the 

State. Appellant averred that he “only pleaded guilty” because of trial counsel’s 
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advice that Appellant “would not suffer any adverse immigration consequences.” 

Appellant also stated that, if he had known that trial counsel’s advice was incorrect, 

he “would not have pleaded guilty and would have instead insisted on going to trial.”

Trial counsel likewise submitted an affidavit to the trial court; however, trial 

counsel’s affidavit differs from Appellant’s. Trial counsel indicated in his affidavit 

that, on the day of the plea hearing, he took Appellant and the interpreter provided 

by the trial court into a private room and requested that the interpreter admonish 

Appellant. Trial counsel averred that he advised Appellant, through the interpreter, 

of the immigration consequences of pleading guilty and “made certain that 

[Appellant] was aware that deportation was possible as a result of pleading guilty” 

(emphasis added).

The reporter’s record from the plea hearing reflects that the trial court

admonished Appellant that, if he was not a citizen of the United States and if he was 

found guilty, “it could cause you to be deported, it could affect any resident alien 

status, or cause you to be denied citizenship.” Among the plea papers in the clerk’s 

record is a document that was signed by Appellant and his trial counsel. That 

document, “PLEA ADMONISHMENT – NON-CITIZENSHIP,” reads as follows:

I, Rogelio Dominquez, Defendant in this cause of action, certify 

that I am a non-citizen of the United States. I affirm that my attorney 

has advised me of the application of federal law regarding the 

consequences of pleading nolo contendere or guilty in this case. By my 

signature below, I acknowledge that I understand the application of the 

federal law described below; I understand the consequences of my plea 

to the offense in this case; and, understanding the law and consequences 

of my plea, I intelligently, knowingly and voluntarily persist in my plea.

The applicable federal law which has been explained to me 

includes, but is not limited to: 

[Here, the document references 8 U.S.C. ch. 12 (immigration) and 8 

U.S.C. §§ 1227 (deportable aliens), 1229b (cancellation of removal; 
6

adjustment of status), 1182 (inadmissible aliens) and a website address 

where the text of those statutes is available.]

I further affirm that I would nevertheless persist in my plea 

despite the applicable federal law because my Judicial Confession 

entered in this case is true and because the plea recommendation in the 

case is both fair and acceptable to me, even if deportation, exclusion 

from admission to this country or denial of naturalization under federal 

law is guaranteed to result from it.

In this document, trial counsel indicated that, with the interpreter’s help, trial counsel 

fully advised Appellant regarding the application of the above-referenced federal 

law and the consequences of his plea.

The trial court reviewed the application for writ of habeas corpus, the waivers 

filed, the affidavits of Appellant and his trial counsel, and the transcript of the guilty 

plea hearing. Based on its review of those documents, the trial court found that 

Appellant “was properly admonished by counsel and the Court about possible

deportation before entering a guilty plea” (emphasis added). The trial court further 

found:

Additionally, a [S]panish-speaking interpreter (Mr. Sammy 

Alvarez) was sworn and participated in all aspects of the plea as the 

Defendant spoke with counsel and the Court. Therefore, it is the 

finding of the Court that the Defendant was aware of possible

deportation as he knowingly and voluntarily entered his plea of guilt to 

the charge of Failure to Appear.

(Emphasis added).

With respect to the first prong of the Strickland/Padilla analysis, we cannot 

determine from the record before us that trial counsel properly advised Appellant

that deportation was a “presumptively mandatory” consequence, as opposed to a 

possibility, of his guilty plea. Torres, 483 S.W.3d at 44 (quoting Padilla, 559 U.S. 

at 369). The trial court’s finding echoed trial counsel’s affidavit in regard to

Appellant having been informed that deportation was “possible.” Because Padilla
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requires that an attorney advise his client regarding the presumptively mandatory 

deportation consequences of a conviction for an “aggravated felony,” see Torres, 

483 S.W.3d at 44–45, we will move on to the second prong of Strickland—the 

prejudice prong.

Under the circumstances in this case, we cannot hold that Appellant 

established the prejudice prong of his claim of ineffective assistance of counsel. In 

light of the risk of going to trial on the multiple charges against him; the likelihood 

that Appellant would have been convicted of the charges against him; the relative 

benefit of his plea bargain, which resulted in Appellant being placed on community 

supervision rather than facing the possibility of a term of imprisonment for multiple 

felonies; and the contents of the non-citizenship plea admonishment, which was 

signed by Appellant and which included an acknowledgement that Appellant would

have persisted in his guilty plea “despite the applicable federal law . . . even if 

deportation, exclusion from admission to this country or denial of naturalization 

under federal law is guaranteed to result from it,” we conclude that the trial court did 

not abuse its discretion when it denied the relief sought by Appellant in his

Article 11.072 application for writ of habeas corpus. It was well within the trial 

court’s discretion to determine that Appellant failed to show that trial counsel’s 

performance, even if constitutionally ineffective, affected the outcome of the plea 

process and that, if trial counsel had properly admonished Appellant, Appellant

would not have pleaded guilty and would have insisted on going to trial. See Torres, 

483 S.W.3d at 43 (citing Hill, 474 U.S. at 59). Accordingly, we overrule Appellant’s 

sole issue on appeal.
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This Court’s Ruling

We cannot conclude that the trial court abused its discretion when it denied 

Appellant’s application for writ of habeas corpus. Accordingly, we affirm the order 

of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

November 21, 2019

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating. 

 

2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.