NUMBER 13-10-00390-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
EX PARTE MIGUEL ANGEL MARTINEZ
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
Appellant, Miguel Angel Martinez, pleaded no contest to the offense of
aggravated sexual assault, a first degree felony. See TEX. PEN. CODE ANN. § 22.021
(West Supp. 2010). Pursuant to a plea bargain, the trial court deferred adjudication and
sentenced Martinez to 180 days in jail and community supervision. Martinez filed an
application for post-conviction writ of habeas corpus relief pursuant to Texas Code of
Criminal Procedure article 11.072, which was denied. See TEX. CODE CRIM. PROC. ANN.
art. 11.072 (West Supp. 2010). On appeal, Martinez challenges the trial court’s denial
of his writ. By two issues, Martinez argues that: (1) the trial court failed to properly
advise him on immigration consequences pursuant to Texas Code of Criminal
Procedure article 26.13, id. at art. 26.13 (West Supp. 2010); and (2) his defense
counsel provided ineffective assistance by failing to properly advise him of the
immigration consequences of pleading no contest to aggravated sexual assault. We
affirm.
I. BACKGROUND
On November 2, 2009, Martinez pleaded no contest to an aggravated sexual
assault offense. Martinez signed the court’s plea packet, which included a written
admonishment that informed Martinez in writing that if he is not a United States citizen,
his guilty plea could result in his deportation, exclusion from admission to this country,
or denial of naturalization under federal law. Martinez and his attorney signed the
waiver stating that Martinez went to the ―9th grade in public school and can read, write
and understand the English language.‖ Defense counsel also executed the certificate of
defendant’s attorney certifying that Martinez knew ―that if he/she is not a citizen of the
United States, he/she may be subject to removal (deportation) from the United States,
exclusion from admissions from the United States, and/or denial of naturalization under
federal law.‖ During the plea hearing, defense counsel asked Martinez questions on the
record about his knowledge of the consequences of the plea:
Defense counsel: I’ve also made you aware of a plea of guilty
has several consequences, one, the fact
that you are not an American citizen can
affect you being deported, being excluded
from this country or being denied
naturalization. Do you understand that?
Martinez: Yes.
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The court accepted the plea bargain and sentenced hiim to 180 days in jail and
community supervision.
On March 3, 2010, Martinez filed an application for post-conviction writ of habeas
corpus relief pursuant to article 11.072 of the Texas Code of Criminal Procedure. See
id. at art. 11.072 (West Supp. 2010). In that application, Martinez alleged by two issues
that: (1) the trial court did not properly admonish him of the immigration consequences
that would result from a guilty plea for aggravated sexual assault; and (2) that defense
counsel provided ineffective assistance.
The trial court conducted a hearing on the application on April 13, 2010, in which
Martinez and his sister, Veronica Martinez, testified. Martinez testified that he only
attended school for a little over two years and he only had an understanding of the
English language of about twenty-five to thirty percent. He also stated that he attended
Texas State Technical College in a special program to learn English but he never
finished the first level, which is the equivalent of attending elementary school. Martinez
also stated that he met with his defense counsel four times for less than five minutes
each time. At the meetings, Martinez testified that he told defense counsel of his
concern about being deported and defense counsel assured him not to worry because
Martinez entered the country as a minor and did not have any prior felonies. According
to Martinez, defense counsel told him that the ―most‖ he could get was two years’
imprisonment and that he would not be deported. Martinez claimed that, although
defense counsel went on the record at his plea hearing stating that Martinez could get
deported, he disregarded this because he relied on defense counsel’s previous
statements that he would not get deported and just wanted to move on with his life.
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Veronica testified that any time Martinez received mail in English she would have
to translate it for him because Martinez lacked an understanding of the English
language. She also stated that Martinez only attended school for two years and did not
finish level one of the TSTC program. According to Veronica, Martinez’s vocabulary in
English only amounted to, ―excuse me,‖ ―thank you,‖ and ―sorry.‖
On May 25, 2010, the trial court issued an order denying the writ and finding: (1)
Martinez received the statutory admonishments from the Court, including one regarding
the possibility of deportation upon the entry of a plea of guilty; (2) Martinez signed a
statement reciting that he understood the admonitions and was advised by defense
counsel of the consequences; and (3) defense counsel was effective in his
representation of Martinez. This appeal followed.
II. STANDARD OF REVIEW FOR HABEAS CORPUS
In reviewing the trial court's habeas corpus judgment, we view the evidence in
the light most favorable to the ruling. Ex parte Lafon, 977 S.W.2d 865, 867 (Tex.
App.—Dallas 1998, no pet.). Absent a clear abuse of discretion, we accept the trial
court's decision whether to grant the relief requested in a habeas corpus application. Id.
To reverse a habeas corpus judgment the appellant must show by a preponderance of
evidence that he was unaware of a significant consequence of the plea. Blanco v.
State, 771 S.W.2d 598, 599 (Tex. App.—Corpus Christi 1989, no pet.).
When reviewing a guilty plea or, as in this case, a no contest plea, the plea is
voluntary if the defendant was made fully aware of the consequences. State v. Jimenez,
987 S.W.2d 886, 888 (Tex. Crim. App. 1999). We afford almost total deference to the
trial court’s determination of historical facts supported by the record, especially when
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the facts require an evaluation of credibility and demeanor. Ex parte Amezquita, 223
S.W.3d 363, 367 (Tex. Crim. App. 2006).
III. TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 26.13
In his first issue, Martinez asserts that the trial court failed to admonish him
pursuant to Texas Code of Criminal Procedure article 26.13. See TEX. CODE CRIM.
PROC. ANN. art. 26.13. The State counters that Martinez was properly admonished
because: he acknowledged in writing that if he was not a United States citizen and
pleaded guilty, his guilty plea could result in deportation; and the possibility of
deportation was discussed during the plea hearing.
A. Applicable Law
A judge accepting a plea of guilty or no contest is required to provide the
admonishments listed in Texas Code of Criminal Procedure article 26.13. See id. The
Texas Code of Criminal Procedure article 26.13(a)(4) provides:
(a) Prior to accepting a plea of guilty or a plea of nolo contendere,
the court shall admonish the defendant of:
(4) the fact that if the defendant is not a citizen of the United States
of America, a plea of guilty or nolo contendere for the offense
charged may result in deportation, the exclusion from admission to
this country, or the denial of naturalization under federal law.
Id. A judge may do so orally or in writing. Id. If in writing, there must be a statement
signed by the defendant and his attorney that he understands the admonishments and
is aware of the consequences of his plea. Id. When the admonishments are provided in
writing and the defendant and his attorney have provided the required acknowledgment,
it is not necessary that the trial court orally reiterate the admonishments to the
defendant. Blanco, 771 S.W.2d at 599. Article 26.13(c) provides that ―substantial
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compliance by the court is sufficient‖ when admonishing a defendant ―unless the
defendant affirmatively shows that he was not aware of the consequences of his plea
and that he was misled or harmed by the admonishment of the court.‖ TEX. CODE CRIM.
PROC. ANN. art . 26.13.
B. Discussion
At the habeas corpus hearing, Martinez testified that he did not understand the
consequences of his plea because he relied on alleged prior statements by his defense
counsel that he would not be deported. However, at his plea hearing, Martinez signed
the waiver containing the admonishment that a no contest plea entered for the offense
charged may result in ―deportation, the exclusion from admission to this country, or the
denial of naturalization under federal law.‖ A certificate, signed by his counsel, provided
that appellant voluntarily and knowingly entered into the waiver.
Viewing the evidence in the light most favorable to the ruling, we conclude
appellant has failed to meet his burden of establishing there was no admonishment
given consistent with article 26.13(a)(4). See Lafon, 977 S.W.2d at 867.
Therefore, we cannot conclude that appellant affirmatively showed by a preponderance
of the evidence that he was not aware of the consequences of his plea. See Blanco,
771 S.W.2d at 599. The trial court did not abuse its discretion when it denied the relief
requested in appellant's habeas corpus application. Lafon, 977 S.W.2d at 867.
Appellant's first issue is overruled.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Martinez contends that his defense counsel was ineffective
because counsel did not inform Martinez of the possible immigration consequences of
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his plea. The State counters that Martinez has failed to demonstrate that his trial
counsel was ineffective because: (1) Martinez signed a waiver, which stated that he
read, wrote, and understood English and understood the consequences of his plea; (2)
Martinez signed a statement reciting that he understood the admonitions and was
advised by defense counsel of the consequences; and (3) Martinez acknowledged on
the record that defense counsel advised him of the immigration consequence of his
plea.
A. Applicable Law
The United States Supreme Court has held that counsel must inform a client
whether his plea carries a risk of deportation. Padilla v. Kentucky, 130 S. Ct.
1437,1475 (2010). The Court found that before entering a plea of no contest, a
defendant is entitled to ―the effective assistance of competent counsel.‖ Id. (quoting
Strickland v. Washington, 466 U.S. 668, 686 (1984)).
Under Strickland, a claim of ineffective assistance must show how specific acts
or omissions of counsel failed to meet two distinct criteria of effectiveness. Id.
Martinez must show: (1) his attorney’s representation fell below an objective standard
of reasonableness; and (2) there is a reasonable probability that, but for his attorney’s
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
684; Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that
appellant must show a reasonable probability that, but for the counsel’s errors, the fact-
finder would have had a reasonable doubt as to appellant’s guilt); Jaynes v. State, 216
S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Martinez has the burden
of proving ineffective assistance of counsel by a preponderance of the evidence.
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Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State,
668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).
The right to ―reasonably effective assistance of counsel‖ does not guarantee
counsel whose competency is judged by perfect hindsight or errorless counsel. Saylor
v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). The claims of ineffective
assistance must be supported by the record. Thompson, 9 S.W.3d at 814; Jaynes, 216
S.W.3d at 851. A silent record which provides no explanation for counsel’s actions
usually will not overcome the strong presumption of reasonable assistance. Thompson,
9 S.W.3d at 813–14. To warrant reversal without giving counsel an opportunity to
explain her actions, ―the challenged conduct must be so outrageous that no competent
attorney would have engaged in it.‖ Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim.
App. 2007) (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
B. Discussion
Martinez states that he received inaccurate legal advice regarding the
immigration consequences of his plea that led him to believe that his plea for
aggravated sexual assault would not affect his immigration status. Martinez claims that
if it was not for this advice from defense counsel, he would have chosen a different
course of action for resolving the case that would not have affected his immigration
status.
However, the trial court heard the evidence submitted by Martinez during the
habeas corpus hearing, which included: (1) a waiver Martinez signed, which stated that
he read, wrote, and understood English and further understood the consequences of his
plea; (2) a signed statement by Martinez reciting that he understood the admonitions
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and was advised by defense counsel of the consequences; and (3) an
acknowledgement on the record by Martinez that defense counsel advised him of the
immigration consequences of his plea. The trial court as the trier of fact was free to
disbelieve Martinez’s claim that counsel gave him inaccurate legal advice regarding the
immigration consequences of pleading guilty. See Amezquita, 223 S.W.3d at 367.
Martinez did not show that defense counsel’s representation fell below an objective
standard of reasonable, a requirement for proving ineffective assistance of counsel.
See Strickland, 466 U.S. at 686. Viewing the evidence in the light most favorable to the
trial court’s ruling, we conclude that the trial court did not abuse its discretion in denying
Martinez’s writ for habeas corpus. See Lafon, 977 S.W.2d at 867. Appellant's second
issue is overruled.
V. CONCLUSION
The judgment of the trial court is affirmed.
________________ ___
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of July, 2011.
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Ex Parte Miguel Angel Martinez
Combined Opinion