Affirmed and Memorandum Opinion filed July 16, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00440-CR

EX PARTE VIDAL ALEXANDER REYES

On Appeal from the County Criminal Court at Law No. 10

Harris County, Texas

Trial Court Cause No. 1946698

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

Appellant, Vidal Alexander Reyes, appeals the denial of his application for 

writ of habeas corpus on the ground he received ineffective assistance of counsel 

because plea counsel failed to advise him regarding the deportation consequences 

of his guilty plea. Because we conclude that appellant failed to prove prejudice

from any deficient performance, we affirm.

I. BACKGROUND

According to appellant, he is a native of El Salvador but a legal permanent 

resident of the United States and has lived in this country for more than twenty-
2

five years. In August 2010, appellant was charged with the Class B misdemeanor 

offense of possession of less than two ounces of marijuana, enhanced by a prior 

felony conviction for possession of cocaine and a prior misdemeanor conviction 

for possession of marijuana. In September 2010, pursuant to a plea agreement, 

appellant pleaded “guilty” to the charged offense and “true” to the enhancement 

allegation for the prior conviction for marijuana possession. Appellant was 

sentenced to thirty days in jail, credited with five days already served. 

Appellant asserts that he has now been ordered deported because the 

conviction at issue made deportation mandatory. In February 2014, he filed an 

application for writ of habeas corpus, seeking to vacate the conviction on the 

ground his plea counsel was ineffective by failing to advise appellant that 

deportation would be mandatory. After a hearing, the habeas court signed a 

judgment denying the application and issued written findings of fact and 

conclusions of law.

II. STANDARD OF REVIEW AND APPLICABLE LAW

An applicant seeking post-conviction habeas corpus relief bears the burden 

to establish 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). On appellate 

review, we view the facts in the light most favorable to the habeas court’s ruling

and uphold the ruling absent abuse of discretion. 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). The habeas court is the 

original fact finder in a habeas proceeding. Ex parte Harrington, 310 S.W.3d 452, 

457 (Tex. Crim. App. 2010). We afford almost total deference to the habeas

court’s determination of the historical facts that are supported by the record, 

especially when the factual findings are based on an evaluation of witness 
3

credibility and demeanor. Peterson, 117 S.W.3d at 819. We afford the same 

deference to the habeas court’s application of law to the facts if the resolution of 

the ultimate questions turns on an evaluation of credibility and demeanor. Id. If 

resolution of the ultimate questions turns on application of legal standards, we 

review the decision de novo. See id.

The test for determining the validity of a guilty plea is whether it represents

a “voluntary and intelligent choice among the alternative courses of action open to 

the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). A guilty plea is 

not knowing or voluntary if made as a result of ineffective assistance of counsel. 

Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012). The twopronged Strickland test applies when a habeas applicant challenges a guilty plea 

based on ineffective assistance of counsel. Ex Parte Luna, 401 S.W.3d 329, 333 

(Tex. App.—Houston [14th Dist.] 2013, no pet.). The applicant must show by a 

preponderance of the evidence that (1) plea counsel’s performance fell below the 

objective standard of reasonableness, and (2) there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); see

Luna, 401 S.W.3d at 333.

In Padilla v. Kentucky (decided six months before appellant’s guilty plea), 

the Supreme Court of the United States held that counsel must inform his client 

whether his plea carries a risk of deportation. 559 U.S. 356, 374 (2010). 

Counsel’s performance is deficient under the first Strickland prong if counsel fails 

to advise a noncitizen client about deportation consequences that are “truly clear.” 

Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no 

pet.) (citing Padilla, 559 U.S. at 368–69; Aguilar v. State, 375 S.W.3d 518, 524 

(Tex. App.—Houston [14th Dist.] 2012), rev’d on other grounds, 393 S.W.3d 787 
4

(Tex. Crim. App. 2013)). Thus, plea counsel is deficient if he merely mentions the 

possibility of deportation when the relevant immigration provisions are 

presumptively mandatory. Id. (citing Aguilar, 375 S.W.3d at 524). However, a 

defendant complaining that plea counsel failed to advise him of such deportation 

consequences must also satisfy the second Strickland prong by proving prejudice. 

See Strickland, 466 U.S. at 697; Luna, 401 S.W.3d at 333. 

III. ANALYSIS

In four issues, appellant contends the habeas court erred by denying 

appellant’s application. To summarize its findings of fact and conclusions of law, 

the court denied the application because appellant failed to establish (1) counsel’s 

performance was deficient, or (2) appellant was prejudiced. In his first two issues, 

appellant challenges the finding that he failed to prove deficient performance. In 

his next two issues, he challenges the finding that he failed to establish prejudice. 

We need not decide whether appellant established plea counsel’s 

performance was deficient because we may uphold the habeas court’s ruling on the 

ground that appellant failed to prove prejudice. See Strickland, 466 U.S. at 697; Ex 

parte Murillo, 389 S.W.3d 922, 927 (Tex. App.—Houston [14th Dist.] 2013, no 

pet), abrogated on other grounds by Chaidez v. United States, 568 U.S. ––, 133 

S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013); Ex parte De Los Reyes, 392 S.W.3d 

675, 678–79 (Tex. Crim. App. 2013). We will assume solely for purposes of the 

prejudice analysis that deportation was mandatory for the reasons advanced by 

appellant and plea counsel failed to advise appellant of that consequence.

1

 

1

The crux of appellant’s complaint regarding deficient performance is that CarachuriRosendo v. Holder, 560 U.S. 563 (2010), decided two months before his plea, established that

the present misdemeanor conviction would be treated as an aggravated felony for immigration 

purposes due to the enhancement by either previous conviction. According to appellant, that 

status means deportation is mandatory and he may not pursue “cancellation” by presenting 
5

Under the prejudice prong, the applicant must show there is a reasonable 

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

would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 

(1985); Harrington, 310 S.W.3d at 458. This standard requires the applicant to 

demonstrate that a decision to reject the plea agreement would have been rational 

under the circumstances. See Padilla, 559 U.S. at 372; Fassi, 388 S.W.3d at 886–

87. The test is objective, turning “‘on what a reasonable person in the defendant’s 

shoes would do.’” Fassi, 388 S.W.3d at 887 (quoting United States v. Smith, 844 

F.2d 203, 209 (5th Cir. 1988) (per curiam)). The inquiry is made on a case-by-case 

basis, considering the circumstances surrounding the plea and the gravity of the 

alleged failure. Murillo, 389 S.W.3d at 928; Fassi, 388 S.W.3d at 887–88. 

Consistent with the abuse-of-discretion standard of review, we give deference to 

the habeas court’s underlying historical fact determinations, but the ultimate 

question of prejudice under Strickland is reviewed de novo. Fassi, 388 S.W.3d at 

887.

Our court has identified several factors to consider when reviewing a trial 

court’s determination that a defendant would have pleaded guilty even if he had 

been properly advised of the immigration consequences: (1) the strength of the 

State’s evidence of the defendant’s guilt; (2) whether he had any factual or legal 

defenses to the charged offense; (3) whether the record reveals that his

immigration status was his primary concern, as opposed to other concerns such as

fear of incarceration or a desire for the case to simply be over; and (4) the benefits 

 

mitigating circumstances. Appellant asserts counsel should have been aware of the import of 

Carachuri but failed to advise appellant that deportation is mandatory. The trial court’s findings 

and conclusions suggest it determined deportation was not necessarily mandatory or the law, if 

any, mandating deportation was not “readily discernible” to counsel at the time of appellant’s 

plea.
6

of the plea bargain compared to the penalties risked if he had opted to proceed to 

trial. Murillo, 389 S.W.3d at 928–31. 

Initially, we note appellant testified he would have “fought” the case if he 

had been advised of the immigration consequences of his plea because he was 

innocent, had a steady job, and had long-term custody of his children. However, 

the habeas court found appellant’s “testimony that he would not have plead [sic] 

guilty and would have proceeded to trial had he been admonished that he would be 

deported rather than that he may be deported was not credible.” The habeas court, 

as judge of witness credibility, “was free to disbelieve appellant’s self-serving 

testimony” that he would have proceeded to trial had he been properly advised of 

the immigration consequences of the plea. See Fassi, 388 S.W.3d at 888. Instead, 

the habeas court found appellant’s motivation in pleading guilty “was to get out of 

jail, and that he would have made that decision regardless of any admonishment of 

immigration consequences.” Applying the above-cited factors, the evidence 

supports the habeas court’s conclusion, and appellant has not demonstrated it 

would have been rational to reject the plea agreement and proceed to trial. 

A. Strength of the State’s case and whether appellant had any defenses

We will consider these factors together because they are interrelated in this 

case. The evidence reflects the State had a strong case. To establish unlawful 

possession of a controlled substance, the State must prove that the defendant (1) 

exercised actual care, control, or custody over the substance, and (2) knew the 

matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.

Crim. App. 2005). At the habeas hearing, appellant acknowledged the following 

underlying facts: he was stopped by the police for a traffic offense while driving 

his car; and when the police asked if there was anything in the car they should 

know about, appellant replied that there was marijuana in the passenger door. This 
7

testimony established appellant knew the marijuana was present, knew the nature 

of the substance, and, as driver, had control over the marijuana. Appellant’s plea 

counsel, whom the habeas court expressly found to be credible, had forty years of 

criminal-law experience at the time of the habeas hearing and testified the State 

had a strong case against appellant. 

At the hearing, appellant claimed he was innocent because he had just 

bought the car from a friend who left the marijuana inside. Although the habeas

court found appellant was not credible regarding his claim he would have 

proceeded to trial, the court found appellant was credible relative to the facts of the 

underlying offense. However, even if appellant was truthful regarding his friend 

leaving the marijuana in the car, the evidence reflects that fact would not have 

provided an effective defense. Specifically, appellant admitted that the friend had 

called earlier in the day asking about the marijuana. This admission demonstrates

appellant drove the car knowing the marijuana was present. Although appellant 

claimed his friend owned the marijuana, appellant also admitted he was not 

charged with “ownership” but rather “possession” and that he had possession of 

the marijuana. 

Additionally, even if appellant was truthful regarding his friend leaving the 

marijuana in the car, the record contains evidence that appellant’s primary 

motivation was getting out of jail as opposed to defending the case. Appellant 

claimed he asked plea counsel to contact the friend to acknowledge owning the 

marijuana. However, plea counsel testified that (1) appellant did not tell counsel 

he was innocent or request further investigation, (2) if appellant had said he was 

innocent, counsel would have reset the plea hearing and attempted to persuade the 

owner of the marijuana to appear, and (3) getting out of jail was appellant’s 

primary concern, and the plea resulted in the minimum sentence. Again, the trial 
8

court was free to believe counsel instead of appellant with respect to this 

conflicting testimony. On cross-examination, appellant admitted he took the plea 

to “get out” of jail, and the trial court found that testimony was credible. 

Accordingly, these two factors weigh against a finding of prejudice by 

showing appellant faced a substantial likelihood of conviction if he had proceeded

to trial and did not insist that he had any defenses to pursue. 

B. Whether immigration status was appellant’s primary concern

At the habeas hearing, appellant attempted to characterize the immigration 

consequences of the plea as his primary concern. However, there is no evidence 

that before entering the plea, appellant expressed to anyone that deportation 

consequences were a concern. Moreover, before entering the plea, appellant 

signed a form acknowledging, inter alia: “if I am not a citizen of the United States 

my plea of guilty/nolo contendere may result in my deportation, exclusion from 

admission to this country, or denial of naturalization under federal law . . . .” Plea 

counsel testified that (1) he went over the form with appellant, (2) the particular 

trial judge who took the plea always gave admonishments there may be 

immigration consequences, (3) counsel would have requested a reset if appellant 

had asked to consult with an immigration attorney, and (4) appellant did not do so 

because again getting out of jail was his primary concern. We do not hold that the

form, counsel’s explanation thereof, or trial court admonishments sufficed as 

advice from counsel that deportation is mandatory with respect to the first 

Strickland prong. But, pertinent to the prejudice prong, that evidence at least 

indicates appellant knew there may be immigration consequences of the plea yet he 

was more concerned with avoiding a lengthier jail term.

Finally, at the habeas hearing, appellant acknowledged he was advised by 

counsel and the trial court regarding immigration consequences when he pleaded 
9

guilty to four of his prior separate offenses—three for possession of marijuana and 

one for assault on a family member—yet he chose to enter those pleas because he

wanted to get out of jail and provide for his family.

2

 Again, we do not hold that 

such advice or admonishments sufficed as the requisite advice by counsel 

concerning the present plea. However, appellant’s previous decisions are again 

relevant to the prejudice prong by reinforcing that appellant has consistently placed 

staying out of jail as paramount to the immigration consequences of his pleas. 

C. Consequences of plea versus risks of proceeding to trial

This factor also supports that appellant would not have risked a trial even if 

he had known of the immigration consequences of the plea. Based on either 

enhancement allegation (possession of cocaine or possession of marijuana), 

appellant’s punishment range for the present offense was a minimum of 30 days 

and a maximum of 180 days in jail, plus a fine not to exceed $2,000. See Tex. 

Penal Code Ann. §§ 12.22, 12.43(b) (West 2011). Due to the plea bargain and 

credit for time served, appellant was released from jail in less than thirty days.3 It 

is a rational inference that, if appellant had proceeded to trial, he bore a significant 

risk of receiving the maximum punishment because of his multiple prior 

convictions for drug possession. See Delgado v. State, 235 S.W.3d 244, 252 (Tex.

Crim. App. 2007) (citing Tex. Code Crim. Proc. art. 37.07, § 3(a)(1), when stating 

that, during punishment phase, defendant’s prior criminal record may be offered 

for any relevant purpose, including proof of his character or propensity). 

Appellant’s allegation that deportation is mandatory because of his guilty plea 

 

2 Appellant had more prior convictions than the two that were the basis for the 

enhancement paragraphs in the present case.

3

The judgment shows appellant received credit for five days served. Plea counsel 

testified the plea bargain included a “two-for-one” credit for those five days, but his testimony is 

not exactly clear on how many days were credited. Regardless, the total served was less than 

thirty days.
10

would be equally applicable if he had been convicted after a trial. Consequently, if 

appellant had proceeded to trial, there would have been a substantial likelihood of 

a longer jail term than he actually served, plus deportation. 

In summary, all of the relevant factors weigh in favor of the trial court’s

conclusion that appellant would have pleaded guilty even if he had known that 

such plea would result in mandatory deportation. See Fassi, 388 S.W.3d at 887–90

(upholding habeas court’s finding of no prejudice from any failure of counsel to 

advise defendant regarding deportation consequences of guilty plea for marijuana 

possession resulting in deferred adjudication where he faced certain conviction, 

confinement for six months, and same deportation consequences if he had 

proceeded to trial, and there was no evidence he ever expressed concern about 

immigration consequences before entering his plea). Because appellant failed to 

establish prejudice from any deficient performance of plea counsel, the trial court 

did not err by denying the habeas application. Accordingly, we overrule 

appellant’s third and fourth issues and need not consider his first two issues.

We affirm the habeas court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

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