Ex Parte Olvera (Part 2)

STANDARD OF REVIEW [1] An applicant for habeas corpus relief must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 665 (Tex.Crim.App.2006). In reviewing a trial court’s order denying a writ application, we view the facts in the light most favorable to the trial court’s ruling and uphold the trial court’s ruling absent an abuse of discretion. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007). We afford almost total deference to the court’s determination of the historical facts that are supported by the record, especially when those facts are based on an evaluation of credibility and demeanor. Id. If a trial court does not make explicit findings, we grant deference to implicit findings that support the court’s ruling. Id. We will reverse the trial court’s ruling only if we conclude that it is arbitrary, unreasonable, and made without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).

DISCUSSION *2 [2] In issue two, Olvera contends that his trial counsel was ineffective because counsel did not adequately advise him about the immigration consequences of a guilty plea. Because this issue is dispositive, we address it first.

We evaluate the effectiveness of trial counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999). The appellant bears the burden of proving that counsel was ineffective by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). To prevail, the appellant must show (1) counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel’s errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694.

[3] In the context of a guilty plea, an appellant must show that his counsel’s advice about the guilty plea did not fall within the wide range of competence demanded of attorneys in criminal cases and that, but for trial counsel’s errors, there is a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.1999).

Olvera testified at the habeas hearing that counsel did not advise him at all about the immigration consequences of a guilty plea and, in fact, told him there were no consequences of pleading guilty. On the other hand, counsel testified that he told Olvera that he could be deported at any time after pleading guilty:

Q You told him–what did you tell him regarding immigration consequences in his case?

A A plea of guilty could result in his deportation, denial of reentry into the country.

Q You didn’t tell him that it would result in his deportation?

A I said it could result.

Q Okay. Now what is your understanding of the law when somebody pleads to assault on a public servant even in deferred adjudication?

A If you’re on probation for at least over 11 months it’s considered in the federal system an aggravated felony and for that there can be a deportation.

Q Okay. What did you tell Alfredo Olvera regarding the specifics of this charge and what would happen? Did you just give him a standard this will result in your deportation or could result in your deportation as you said earlier?

A I explained to him one year of probation or more is considered in the federal system to be an aggravated felony and for that he could be deported.

Q Did you ever advise him that when he renewed his [legal permanent resident] card or if he ever attempted reentry into the United States that he would be subject to deportation proceedings?

A I made it clear to him that when he pled guilty to the offense–it was [an] aggravated felony and it was a deportable offense and that he could be deported at any time.