In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-21-00065-CR

___________________________

On Appeal from County Criminal Court No. 6

Tarrant County, Texas

Trial Court No. 1519438

Before Sudderth, C.J.; Womack and Walker, JJ.

Memorandum Opinion by Justice Womack

Ex parte Ram Kumar Samal
2

MEMORANDUM OPINION

Appellant Ram Kumar Samal appeals the trial court’s denial of his request for 

habeas corpus relief; specifically, he challenges the trial court’s findings that he 

knowingly and voluntarily pleaded guilty in March 2018 to misdemeanor possession of 

a controlled substance and that he received effective assistance of counsel at the time 

he entered the plea. We have reviewed the record and cannot conclude the trial court 

abused its discretion in making its findings. We therefore affirm the trial court’s order 

denying the request for habeas relief. 

I. BACKGROUND

Samal is a Bhutanese refugee whose native language is not English. At the time 

of his October 2017 arrest for misdemeanor drug possession, he was a lawful 

permanent resident of the United States. After hiring attorney Carole Kerr to represent 

him, he pleaded guilty in March 2018 in exchange for a “time-served” five-day sentence. 

At all times relevant to this habeas proceeding, Samal has been detained in the Tarrant 

County jail on an immigration hold as a result of his conviction and faces possible 

deportation. 
3

A. Samal’s Habeas Application

In August 2019, Samal applied for postconviction habeas corpus1relief based on 

allegations that his plea was involuntary and Kerr’s assistance was ineffective. In 

particular, Samal averred that Kerr “did not properly explain or discuss the nature of 

[his] plea with [him] before advising [him] to plead guilty”; that she “never bothered to 

ask [him] if [he] was a citizen of the United States”; and that she never discussed 

challenging the State’s evidence, hiring expert witnesses, or conducting independent 

testing. He also alleged in his writ application that Kerr violated ethical rules by jointly 

representing Samal and his cousin, who had been arrested simultaneously with Samal 

and was also charged with possession, stating that she never discussed the potential 

impacts of a conflict of interest or sought their waiver of any such interest. 

According to Samal, Kerr advised him during a courthouse meeting to plead 

guilty and enter into a pretrial diversion program for six months in order for the case 

to be dismissed. Samal further alleged that when his uncle, who was present at the 

meeting and assisting Samal by translating, attempted to ask more questions about the 

plea arrangement, Kerr became “irritated and snapped” at the uncle that Samal was the 

1The State agreed below that Samal’s confinement pursuant to an immigration 

hold allowed him standing to pursue habeas relief. See Tex. Code Crim. Proc. Ann. art. 

11.09; Ex parte Schmidt, 109 S.W.3d 480, 481–82 (Tex. Crim. App. 2003). 
4

client, not the uncle.2 Samal averred that he then informed her that he wanted to enter 

the pretrial diversion program and Kerr brought plea paperwork for him to sign. He 

described the events as follows:

Without having the opportunity to fully understand or even consider all 

the rights I would be waiving, I signed the plea paperwork as Ms. Kerr 

directed. Ms. Kerr simply pointed out where I was supposed to sign and 

never bothered to review the documents with me. Since my translator 

was [“]shut-up[”] by Ms. Kerr, he did not get a chance to explain the 

documents to me before signing. 

When I was done, Ms. Kerr asked me to follow her into the 

courtroom and specifically instructed me to simply answer [“]yes[”] to all 

of the judge’s questions. I obediently did as I was told even though I did 

not understand what was going on and why I had been asked to respond 

that way. 

. . . . 

Although our entire discussion before the plea hearing lasted for 

about thirty minutes, Ms. Kerr never bothered to explain any of the 

constitutional rights I would be waiving. . . . . Ms. Kerr never explained 

that pleading guilty could result in me being deported, denied citizenship, 

or denied the ability to reenter this country if I ever left. 

Samal alleged that if he had been properly informed of the consequences of a guilty 

plea and conviction, he would not have pleaded guilty. 

B. Kerr’s Response

In response to Samal’s allegations, Kerr submitted an affidavit and testified at 

the writ hearing. Though she denied retaining paper files for any of her cases, she

2Kerr denied this allegation, explaining in her affidavit: “I state emphatically that 

never happened. I simply don’t talk to people that way, ever.” 
5

recalled that Samal retained her in November 2017 when he told her “the facts from 

his point of view about the circumstances that led to his arrest.” She also recalled filing 

a letter of representation shortly after their meeting, gaining access to the District 

Attorney’s file for the case, and reviewing the evidence. After reviewing the evidence, 

they met again, though Kerr did not recall the circumstances of the meeting or whether 

it was at or before his January 2018 court setting. Kerr attested: 

But at this point with all my clients, I discuss any offer that the prosecutor 

may have given me, and what would be entailed in the various options. If 

applicable, I would discuss probation, pre-trial diversion, credit for timeserved options, as well as asking if my client would instead want to take 

the case to trial and force the [S]tate to prove its allegations. I would have 

explained what is expected in the pretrial diversion program and I would 

have asked him what he wanted to do. He chose to take credit for time 

served. At the time of the plea it would have been clear that he was not 

in the pre-trial program and that he was going to get a conviction. I also 

explained that a conviction could result in his deportation, inadmissibility, 

and denial of citizenship. I always explain that I’m not an immigration 

attorney and made sure he understood what he was opting to do. He told 

me he wasn’t a citizen and understood the possible ramifications. 

She also recalled that Samal was not interested in the pretrial diversion program 

after she explained what was required in the program and that Samal had not wanted 

to go to trial because of the evidence against him, including (in her words):3

when questioned by police[,] he immediately admitted ownership of the 

substance in question, and he understood how a jury would likely receive 

3She recalled that Samal just wanted to get the case “over with.” Pretrial 

diversion, according to Kerr, generally takes three or six months, requires consistent 

clean drug tests and sometimes other tasks, and costs a “few hundred dollars” and lab 

fees for drug testing. She testified that “a lot of people” prefer to just plead guilty 

instead of completing the pretrial diversion program. 
6

that evidence. He was the driver of the vehicle and was one of three 

people in the car. All three were arrested and all three immediately 

admitted to owning and possessing different drugs. 

Kerr explained that they did not enter a plea at the January 2018 hearing, and the case 

was reset to March, when Samal did enter his guilty plea in exchange for time served. 

Pursuant to the plea paperwork, Samal was sentenced to time served (5 days) in 

exchange for his guilty plea. The judgment noted the trial court’s findings that Samal 

“made the plea freely and voluntarily[] and was aware of the consequences of this plea.” 

However, the immigration-consequences portions of the waiver-of-jury-trial form

signed by Samal at the time he entered his guilty plea were not completed or initialed: 

Kerr testified that although those portions were not completed, she had known 

his citizenship status and explained that any time she goes over plea paperwork with a 

client, she “cover[s] the entire document in detail and [has] done so for the past 25 

years,” including the immigration-consequences warnings: “By ‘cover[,]’ I mean I 

explain that a conviction can result in deportation.” According to her, “Had he 

hesitated or expressed concern over deportation, I would have obtained another 

continuance to allow him to consult with an immigration attorney.” She denied Samal 
7

indicated any concerns about the immigration warning or about being deported. She 

stated, “I felt . . . and feel confident that Mr. Samal fully understood everything we 

discussed. We had no difficulty communicating and he never expressed any inability 

on his part to understand what I was explaining to him.”4 

She also recalled that Samal had verbally answered the trial court’s questions

regarding his citizenship status. She conveyed that the particular judge who took the 

plea 

is herself very diligent about ensuring a defendant understands the rights 

he’s giving up. She always warns that a conviction could result in 

deportation and asks if they understand. Sometimes, if she feels any 

concern on this point with a particular defendant, Judge Jones requests 

that we take a few minutes to make sure the defendant is crystal-clear 

about the consequences of the plea at issue. In this case, Mr. Samal gave 

the judge no reason to wonder whether he understood what was 

happening. 

Finally, addressing the conflict-of-interest allegation, Kerr asserted that there was 

no conflict of interest because Samal and his cousin would not need to testify against 

each other to aid the State’s case. She recalled that both men were “happy” with the 

time-served offers. 

4She elaborated by recalling that his responses were more than just “yes, no, nod 

here,” and that he responded in actual sentences. She differentiated her experience with 

Samal from other situations in her career when she had to retain an interpreter in order 

to effectively communicate with a client. 
8

C. The Trial Court’s Decision, Findings, and Conclusions

After taking the application under advisement, the trial court denied Samal’s 

request for relief in December 2020. It adopted the State’s proposed findings and 

conclusions, which overwhelmingly found Kerr’s testimony to be credible, including 

her testimony that she felt Samal understood the plea proceedings, that he turned down 

a pretrial-diversion option, that he knowingly pleaded guilty in exchange for five days’ 

time served, that they had discussed the facts (including Samal’s “immediately 

admitt[ing] ownership of the controlled substances found in this car”), that she had 

inquired about his citizenship status and reviewed the immigration warnings, and that 

he had not appeared concerned or expressed concern about possible immigration 

consequences. It also found Samal had presented no evidence of a defense to the 

offense. It further found that the trial court had orally admonished Samal, would have 

appointed an interpreter if it felt a language barrier impeded their ability to converse, 

and that it would not have accepted the plea if Samal had expressed concerns about 

immigration ramifications. 

Regarding the plea paperwork, the trial court found: 

48. It is this Court that orders the defendant initial the Immigration 

Warning when it reviews that admonishment with the defendant. 

49. For whatever reason, this Court did not circle whether it advised 

Applicant of the immigration consequences of his plea. 

50. The fact that the Immigration Warning is not initialed or marked is 

not evidence that Ms. Kerr did not review the written Immigration 

Warning with Applicant. 
9

It concluded that Samal had failed to prove that Kerr’s advice fell outside the 

range of competence demanded of criminal defense attorneys or that his plea was 

involuntary due to ineffective assistance of counsel. It also concluded that Samal failed 

to prove a conflict of interest in Kerr’s dual representation of him and his cousin. 

Samal now appeals the trial court’s denial of the requested habeas relief. 

II. DISCUSSION

Samal alleged two intertwined bases for habeas relief: (1) his plea was involuntary 

due to ineffective assistance of counsel and (2) he received ineffective assistance of 

counsel. Based on the record before us, we agree with the trial court that Samal has 

not met his burdens to prove either ground as a viable basis for habeas relief. 

A. Standard of Review

We review the trial court’s denial of habeas relief under an abuse of discretion 

standard. Ex parte Moreno, 382 S.W.3d 523, 526 (Tex. App.—Fort Worth 2012, pet. 

ref’d). We view the record in the light most favorable to the trial court’s ruling and 

afford great deference to its findings and conclusions, especially when they involve 

determinations of credibility and demeanor. Id. The test for whether the trial court 

abused its discretion is whether the ruling was arbitrary or unreasonable; the mere fact 

that a trial court may decide a matter within its discretionary authority in a different 

manner than a reviewing court would in a similar circumstance does not demonstrate 

that an abuse of discretion occurred. Id. We will only overrule the trial court’s ruling 
10

on an application for a writ of habeas corpus if the court’s ruling was outside the zone 

of reasonable disagreement. Id. 

B. Effective Assistance of Counsel in Plea Proceedings

The Sixth Amendment guarantees a criminal defendant the effective assistance 

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const. 

amend. VI. This right extends to the plea-bargain process. See Hill v. Lockhart, 474 U.S. 

52, 58–59, 106 S. Ct. 366, 370–71 (1985); Ex parte Evans, 537 S.W.3d 109, 111 (Tex. 

Crim. App. 2017). To establish ineffective assistance, an applicant must prove by a 

preponderance of the evidence that his counsel’s representation was deficient and that 

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 

S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). 

In evaluating counsel’s effectiveness under the deficient-performance prong, we 

review the totality of the representation and the particular circumstances of the case to 

determine whether counsel provided reasonable assistance under all the circumstances 

and prevailing professional norms at the time of the alleged error. See Strickland, 

466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson v. State, 

9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Our review of counsel’s representation 

is highly deferential, and we indulge a strong presumption that counsel’s conduct was 

not deficient. Nava, 415 S.W.3d at 307–08.

To establish prejudice when an applicant claims counsel’s alleged deficient 

performance resulted in a guilty plea, the applicant must show a reasonable probability 
11

that, but for counsel’s errors, he would not have pleaded guilty and would have insisted 

on going to trial. Hill, 474 U.S. at 59, 106 S. Ct. at 370; Ex parte Lewis, 537 S.W.3d 917, 

923 (Tex. Crim. App. 2017); see also Lee v. U.S., 137 S. Ct. 1958, 1966–67 (2017) (holding 

that even a defendant with no realistic defense to a charge may still be able to show 

prejudice when counsel’s bad advice resulted in a guilty plea). In determining whether 

an applicant would not have pleaded guilty but for counsel’s deficient advice, we 

consider the circumstances surrounding the plea and the gravity of the alleged failure 

material to that determination. Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 

1999).

A plea is valid if it represents a voluntary and intelligent choice among alternative 

courses of action open to the defendant. Ex parte Uribe, 516 S.W.3d 658, 666 (Tex. 

App.—Fort Worth 2017, pet. ref’d). “When a person attacks the validity of his prior 

guilty plea as that plea is reflected in the written judgment, he bears the burden of 

defeating the normal presumption that recitals in the written judgment are correct.” 

State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). The written recitals are 

binding in the absence of direct proof of their falsity. Id.

C. Application

To support Samal’s claims of an involuntary plea and ineffective assistance, he 

asserted a veritable laundry list of ways in which Kerr was allegedly ineffective as his 

attorney:
12

a. Kerr never advised him of the rights he was waiving in exchange for his guilty 

plea, the elements of the charged offense, the definition of “possession” under 

Texas law, the State’s burden at trial, and possible defensive theories (including 

independent testing of the controlled substances). 

b. Kerr erroneously advised him that he was pleading guilty in exchange for 

participation in a pretrial diversion program that would result in the charge 

and/or conviction being dismissed or expunged. 

c. Kerr did not review the plea paperwork with him but only told him where to 

sign, and she instructed him to simply answer “yes” to all of the trial court’s 

questions at the plea proceedings. 

d. Kerr never confirmed his immigration status; never advised him that his 

conviction could result in his deportation, inadmissibility, and denial of 

citizenship; and failed to secure an interpreter even though he struggled with 

English. 

e. Kerr represented his cousin, a codefendant, without obtaining a waiver from 

Samal of any conflict of interest. 

The trial court found otherwise, and we cannot conclude that the trial court’s findings 

were in error. See Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004) (“We afford 

almost total deference to a trial court’s factual findings in habeas proceedings, especially 

when those findings are based upon credibility and demeanor.”).

1. Pretrial Preparation and Waiver of Jury Trial5

In Samal’s version of events, Kerr told him relatively nothing about the pretrial 

and trial processes, falsely promised he would be enrolled in pretrial diversion, and 

tricked him into pleading guilty and answering yes to all of the trial court’s questions in 

5This section will address Samal’s arguments listed as a through c above.
13

the plea hearing. But the trial court was presented with Kerr’s affidavit and her live 

testimony, which both told otherwise. 

Kerr described how she gained access to the District Attorney’s file and reviewed 

the evidence, including the facts that Samal had immediately confessed his ownership 

of the controlled substance which he identified as synthetic marijuana, that he was the 

driver of the car in which the synthetic marijuana was found, and that the other two 

people in the car also confessed to owning and possessing different drugs. 

To the extent that Samal faults Kerr for not obtaining independent testing of the 

confiscated substance, defense counsel has never been required to pursue every claim 

or defense regardless of its merit, viability, or realistic chance for success. Knowles v. 

Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 1420 (2009). The law does not require 

counsel to raise every available nonfrivolous defense, nor is defense counsel required 

to have a tactical reason—above and beyond reasonably appraising a claim’s dismal 

prospects for success—for recommending that a weak claim be dropped altogether. Id.

at 127, 129 S. Ct. at 1422. In light of Samal’s confession, we cannot conclude that Kerr 

rendered ineffective assistance by not procuring independent testing. 

And in any event, according to Kerr, Samal had directed her that he wanted to 

get the case “over with” and move on. She recalled that he made that directive after 

she would have explained, per her usual practice, all of his options such as probation, a 

pretrial diversion program, pleading guilty in exchange for time served, and pursuing a 

full trial. Once he decided to plead guilty, she went over the plea paperwork with him, 
14

which clearly states that he “waive[d] his right to trial by jury and to confront his 

accusers” and waived all rights to appeal the conviction. The paperwork states that the 

State’s recommendation was a five-day jail sentence; there is no mention of Samal’s 

entry into a pretrial diversion program. Samal did not dispute that his signature appears 

on the paperwork. 

Nor did he dispute his signature on the judgment, which states, 

Defendant waived the right of trial by jury and entered the plea indicated 

above. The Court then admonished Defendant as required by law. It 

appeared to the Court that Defendant was mentally competent to stand 

trial, made the plea freely and voluntarily, and was aware of the 

consequences of this plea. 

The conviction also reflects his five-day sentence and credit for five days served. Kerr 

explained to the trial court that she was never concerned about Samal’s ability to 

understand the proceedings and that if she had been concerned she would have 

requested a continuance in order to retain an interpreter, which she had done before in 

other cases. 

The trial court was in the best position to judge Kerr’s credibility and to weigh 

the evidence before it, including the presumably truthful recitations in the judgment 

and plea paperwork. See Guerrero, 400 S.W.3d at 583; Ex parte Shutter, 868 S.W.2d 383, 

387 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Viewing the evidence in the light 

most favorable to the trial court’s judgment, we cannot conclude that it abused its 

discretion by finding that Samal did not meet his burden to show Kerr’s ineffective 

assistance. We therefore overrule Samal’s arguments that his plea was rendered 
15

involuntary due to allegations of ineffective assistance related to Kerr’s advice about

the charges against him, the State’s burden, the evidence against him, his right to a jury 

trial, his enrollment in a pretrial diversion program, the contents of the plea paperwork, 

and possible defensive theories.

2. Immigration Consequences

We also agree with the trial court’s conclusion that Samal did not meet his burden 

to show that his plea was rendered involuntary due to Kerr’s alleged failure to inform 

him of possible immigration consequences. 

When a guilty plea will clearly cause deportation or removal from the country, 

counsel must correctly advise a defendant of that consequence when advising the client

whether to plead guilty. Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483 

(2010). Samal asserted that his situation is similar to that of the defendant in the 

landmark Padilla case, who faced deportation after pleading guilty to drug-distribution 

charges. Id. at 359, 130 S. Ct. at 1477. Padilla filed for postconviction relief, arguing 

that his counsel had been ineffective by failing to advise him of the immigration 

consequences of his plea and by telling him that he had nothing to worry about because 

“he had been in the country so long” (40 years). Id., 130 S. Ct. at 1478. The Supreme 

Court held that constitutionally competent counsel would have advised him that his 

conviction for drug distribution made him subject to automatic deportation. Id. at 360, 

130 S. Ct. at 1478. 
16

But viewing the evidence in the light most favorable to the trial court’s ruling, 

this case is easily distinguished from Padilla’s facts. While Samal asserted that Kerr 

never informed him of the immigration consequences, Kerr—a lawyer of thirty years’ 

experience6—testified to the opposite. And unlike the attorney in Padilla, she made no 

assurances that he was safe from deportation. Id. at 359, 130 S. Ct. at 1477. She recalled 

that she had been aware of Samal’s citizenship and explained her usual practice of 

covering plea paperwork, and that she covers the entire document “in detail” including 

the immigration-consequence warnings, meaning she “explain[s] that a conviction can 

result in deportation.” She recounted the trial court’s usual practice of thoroughly 

explaining the same and ensuring that any defendant understands that risk. Kerr again 

stressed that if Samal had hesitated or appeared concerned about deportation, she 

would have requested another continuance and directed him to consult with an 

immigration attorney. 

The failure to complete the portions of the plea paperwork specifically 

addressing citizenship and immigration-consequence warnings is no doubt concerning; 

completing those portions is obviously best practice. But we agree with the trial court’s 

conclusion that it is not dispositive of the voluntary nature of Samal’s plea. The trial 

court’s decision regarding habeas relief must be made in light of all of the circumstances 

6According to the trial court’s findings, Kerr has been licensed and in good 

standing with the State Bar of Texas since 1990. 
17

in which the plea was made, and the trial court was in the best position to judge the 

credibility of Kerr’s testimony that she had advised Samal that his pleading guilty to 

misdemeanor possession could threaten his immigration status and that the trial court 

also addressed his immigration status during the plea hearing. See Guerrero, 400 S.W.3d 

at 583; Ex parte Shutter, 868 S.W.2d at 387. We therefore cannot conclude that the trial 

court erred by denying habeas relief on these grounds.

3. Conflict of interest

Finally, Samal argued that Kerr was ineffective because she failed to advise him 

of the conflict of interest resulting from her joint representation of Samal and his 

cousin. But we cannot conclude that the trial court erred by overruling this ground of 

relief either.

An attorney’s conflict of interest may result in the denial of a defendant’s right 

to effective assistance of counsel. Acosta v. State, 233 S.W.3d 349, 352–53 (Tex. Crim. 

App. 2007). To prevail on a conflicts-based ineffective-assistance claim, an appellant 

must show (1) that an actual conflict of interest existed and (2) in most circumstances, 

that it “actually colored counsel’s actions during trial.” Odelugo v. State, 443 S.W.3d 131, 

136 (Tex. Crim. App. 2014) (citing Acosta, 223 S.W.3d at 356). An appellant is not 

entitled to relief unless an actual conflict existed. Mickens v. Taylor, 535 U.S. 162, 175, 

122 S. Ct. 1237, 1245 (2001). An actual conflict of interest exists when counsel must 

choose between “advancing his client’s interest in a fair trial or advancing other interests 
18

(perhaps counsel’s own) to the [client’s] detriment.” Odelugo, 443 S.W.3d at 136; Acosta, 

233 S.W.3d at 355. 

Samal never actually established a conflict of interest existed. According to the 

record, Samal and his cousin were each arrested in the same transaction, during which 

they both confessed to possessing controlled substances. While Samal implied in his 

application that the dual representation prevented him from pursuing a deal with the 

State as a State’s witness against his cousin, there was no evidence that the State would 

have offered or been interested in such a deal. As Kerr explained, there was no conflict 

of interest because there was no reason for Samal or his cousin to testify against each 

other; the State simply had no need for the testimony of one against the other. This 

was uncontroverted by Samal’s evidence. Viewing the evidence in the light most 

favorable to the trial court’s findings, we cannot conclude that Samal established the 

existence of a conflict of interest, much less that any conflict colored Kerr’s actions as 

Samal’s attorney. See Moreno, 382 S.W.3d at 526. He therefore failed to prove his 

entitlement to relief, and we affirm the trial court’s order denying relief on this ground.7

7

In a post-hearing supplemental brief, Samal asserted a new claim for relief based 

on his claim that Kerr misrepresented the existence of a physical office located in Fort 

Worth. See Tex. Disciplinary Rules Prof’l Conduct R. 7.04, reprinted in Tex. Gov’t Code 

Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9). Not only did he fail to 

present this ground in his original application, but he supplied no authority supporting 

a conclusion that any such violation would have violated his right to counsel, nor are 

we aware of any. 
19

III. Conclusion

Having held that the trial court did not abuse its discretion by denying habeas 

relief on each of the grounds pursued by Samal, we affirm the trial court’s order denying 

such relief. 

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: September 9, 2021