Ex Parte: Carlos Maldonado

AFFIRMED and Opinion Filed December 22, 2020

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01340-CR

EX PARTE CARLOS MALDONADO

On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX19-00005-Q

MEMORANDUM OPINION
Before Chief Justice Burns1 and Justices Pedersen, III, and Evans
Opinion by Justice Evans
Carlos Maldonado appeals the trial court’s order denying relief on his post-

conviction application for writ of habeas corpus. In two issues, appellant contends

the trial court improperly applied legal standards in determining whether his guilty

plea was entered knowingly and contends he received ineffective assistance of

counsel. For the reasons that follow, we affirm the trial court’s order.

1
The Honorable David L. Bridges, Justice, participated in the submission of this case; however, he did
not participate in the issuance of this memorandum opinion due to his death on July 25, 2020. Chief Justice
Robert Burns has substituted for Justice Bridges in this cause.
 BACKGROUND

Appellant is a Honduran immigrant who has lived in the United States since

2004. In 2006, appellant was charged with possession of cocaine in an amount less

than one gram. Trial counsel was appointed to represent appellant in connection

with the charge. The number of meetings between appellant and trial counsel and

the advice trial counsel gave appellant are disputed matters.

In 2007, appellant entered a negotiated plea of guilty before a magistrate who

made findings that appellant had appeared with counsel, waived a jury trial, and was

duly admonished about the consequences of his plea. The magistrate concluded

appellant entered his plea freely and voluntarily and recommended the trial court

follow the plea bargain agreement which called for appellant to be placed on deferred

adjudication community supervision for two years and be fined $1,500.

The plea bargain agreement contains admonishments advising appellant that

if he is not a United States citizen, his guilty plea “may, and under current Federal

Immigration rules is almost certain to, result in your deportation, exclusion from

admission to the United States, or denial of naturalization.” (Emphasis in original).

The plea bargain also contains appellant’s acknowledgment that he understands that

if he is not a citizen, his guilty plea “will probably result in my deportation from the

United States, exclusion from admission to the United States, or denial of

naturalization under Federal law.” Appellant further represents that he had read and

understands the admonitions and warnings about his rights and his plea and assures

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the trial court that his “statements and waivers are knowingly, freely and voluntarily

made with full understanding of the consequences.”

The trial court adopted the magistrate’s findings, conclusions, and

recommendations. The trial court entered an order assessing the agreed period of

deferred adjudication community supervision. Appellant was never adjudicated

guilty. In 2012, the trial court discharged him “unsuccessfully” from community

supervision.

Habeas Proceedings in the Trial Court

On January 11, 2019, appellant filed an application for writ of habeas corpus

pursuant to article 11.072 of the code of criminal procedure. In his writ application,

appellant contended he received ineffective assistance of counsel and his guilty plea

was entered involuntarily. Specifically, appellant contended trial counsel

misadvised him that his guilty plea would not result in deportation from the United

States, he did not comprehend the plea papers he signed because he cannot read the

English language, and trial counsel did not translate the plea papers into Spanish and

explain them to him. Appellant supported his writ application with his own affidavit,

an affidavit from trial counsel, and documents from his plea proceeding.

Appellant’s affidavit relates that he and trial counsel had only one brief

meeting, outside the courtroom, during which he signed a paper written in English

that he did not understand and trial counsel did not explain to him in Spanish.

Appellant states he never saw a judge. Later, trial counsel informed him he was on

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probation and this was a good result because he would not have to go to jail. When

he asked trial counsel if he would have any immigration problems arising from the

plea, trial counsel assured him he would not. Appellant avers he learned only

afterward that he had pleaded guilty to possession of cocaine. Appellant avers he is

now in removal proceedings and faces deportation.

Appellant states he would have chosen to proceed to trial if trial counsel had

explained the plea papers to him and had not misadvised him that he would not have

any immigration issues arising from the plea. Appellant avers he is innocent, did

not possess any cocaine, and does not know why he was arrested. Appellant relates

that he has lived in the United States for fourteen years, his child was born in the

United States, and his family depends on him for support. Appellant’s affidavit

includes a certification by the person who translated his statements into English for

preparation of the affidavit.

Trial counsel’s affidavit states he does not remember appellant’s case and has

no records of the case. Trial counsel further avers he has practiced law for forty

years, criminal law is his primary area of practice, and that approximately eighty

percent of his clients are Hispanic, including many immigrants from Mexico and

Central America. He testified, “On every case involving a client that is not an

American citizen, I advise them that any criminal conviction can and will result in

deportation and/or a denial of any application for Legal Residency or

Naturalization.” Such advice is his “standard practice without exception” and his

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“standard procedure” is to inform every client who is not a United States citizen

“that any criminal case could have adverse effects on their immigration status.”

Although he could not recall appellant’s case, counsel averred that he knew to a

certainty that he had advised appellant of the repercussions of his guilty plea even

though appellant was receiving deferred adjudication.

The Hearing and Ruling

During the hearing on his writ application, appellant chose to rely on the

affidavits and documents submitted with his application without putting on

testimony. The State admitted into evidence the trial court’s case file. A reporter’s

record of the writ hearing has been filed in this appeal.2

During argument, appellant argued the presence in the file of a Spanish

translation of his conditions of community supervision shows he speaks Spanish and

did not understand the plea papers and admonishments. Appellant speculated that it

was “very possible” that counsel did not properly advise him because counsel may

have believed deferred adjudication did not carry adverse immigration

consequences. Appellant pointed out that the plea proceeding occurred before the

United States Supreme Court’s Padilla decision which mandated such advice. The

State had pointed out that the file shows appellant was discharged from community

2
State’s Exhibit One, consisting of the entire contents of the trial court’s file, was not filed into the
appellate record with the reporter’s record. At the State’s request, the district clerk has filed a supplemental
clerk’s record containing the contents of the trial court’s file.
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supervision as “unsuccessful” because he had absconded from supervision two

months after he entered his plea and was not apprehended during the term of

community supervision. Appellant argued that his failure to abide by the terms of

community supervision showed that he did not understand what probation entailed

and that he thought his case was over. Appellant argued he was back in court, willing

to risk a trial to assert his innocence.

After hearing argument, the trial court stated on the record that it had difficulty

accepting the veracity of appellant’s affidavit because it contradicted the evidence

in the court’s file. The trial court pointed out that while appellant stated he had met

with counsel only once, the record showed someone had appeared in court four times

with counsel before appellant had entered his plea and had signed appellant’s name

to documents using a similar signature to appellant’s signature on the plea papers.

The record contains four pass slips that support the trial court’s statement. The trial

court further stated that trial counsel’s affidavit was “entirely contrary” to

appellant’s allegations. The trial court thought the presence of the Spanish version

of the probation conditions showed appellant had no difficulty communicating in

Spanish during the plea proceedings. The trial court stated that appellant’s habeas

counsel had been given the opportunity to inquire whether a reporter’s record of the

plea proceedings was available. The trial court observed that if appellant had

requested a reporter’s record, if available, then the court would be able to determine

whether an interpreter was used at the plea hearing and make an assessment of

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whether the plea was voluntary. As the record stood, the trial court concluded that

“all the information that I have is contrary to the information provided in the

applicant’s application.”

The trial court denied relief and it adopted the State’s proposed findings of

fact and conclusions of law.3 Among the trial court’s findings, the trial court found

trial counsel had made four court appearances on appellant’s behalf. The trial court

also found appellant had failed to complete community supervision because he had

not reported to his community supervision officer. The trial court found it had issued

an arrest warrant for appellant on October 1, 2008 and dismissed the case against

appellant on March 16, 2012 after appellant’s counsel informed the trial court that

appellant was in jail in Maine. The trial court found appellant had declined an

opportunity to postpone the hearing to allow him to obtain a reporter’s record of his

plea hearing from the court reporter. The trial court found appellant’s assertions in

his affidavit are in direct conflict with appellant’s attestations in his plea agreement,

the trial court’s written admonishments, the magistrate’s findings, and the affidavit

of trial counsel.

The trial court further found appellant’s attestations in his affidavit were self-

serving and not credible. In contrast, the trial court found trial counsel’s attestation

that he advises every client who is not an American citizen of the adverse

3
The order adopting the State’s proposed findings of fact and conclusions of law was signed by a senior
judge sitting by assignment.
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immigration consequences of a guilty plea was credible. The trial court found

appellant’s claim that trial counsel had not advised him properly of the consequences

of his plea lacks merit. The trial court found appellant had failed to prove the first

prong of the required Strickland test to show ineffective assistance of counsel, had

failed to overcome the strong presumption that trial counsel rendered effective

assistance, found the trial court had properly admonished appellant, and the evidence

presented at the plea hearing was sufficient to support the judgment.

The trial court concluded appellant had received reasonably effective

assistance of counsel, he had entered his plea freely and voluntarily, and he had not

been denied any constitutional rights. This appeal followed.

DISCUSSION

Standard of Review

In reviewing the trial court’s ruling on a habeas claim, we review the record

evidence in the light most favorable to the trial court’s ruling and must uphold the

trial court’s ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657,

664 (Tex. Crim. App. 2006). A trial court abuses its discretion if it acts without

reference to any guiding rules or principles. State v. Simpson, 488 S.W.3d 318, 322

(Tex. Crim. App. 2016).

Applicants for post-conviction habeas corpus relief bear the burden of proving

their claims by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35,

43 (Tex. Crim. App. 2016). When the underlying conviction results in community

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supervision, an ensuing post-conviction writ must be brought pursuant to article

11.072 of the code of criminal procedure. Id. at 42. In reviewing an appeal arising

from an 11.072 writ application, the appellate courts have less leeway to disregard

the trial court’s factual findings. Id. The trial court is the sole finder of fact, and

“we afford almost total deference to a trial court’s factual findings when they are

supported by the record, especially when those findings are based upon credibility

and demeanor.” Id. We defer to the trial court’s fact findings supported by the

record even when such findings are based on affidavits rather than live testimony.

State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). If, however, the

trial court’s determinations are questions of law, or mixed questions of law and fact

that do not turn on an evaluation of witnesses’ credibility and demeanor, then we

review them de novo. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App.

2014).

Application of Legal Standards to Determine Voluntariness of the Plea

In his first issue, appellant contends the trial court improperly applied the legal

standards in finding he entered his guilty plea knowingly and voluntarily.

A guilty plea must be voluntary and “a knowing, intelligent act done with

sufficient awareness of the relevant circumstances and the likely consequences.”

Brady v. U.S., 397 U.S. 742, 748 (1970). The defendant entering the plea must be

“fully aware of the direct consequences, including the actual value of any

commitments made to him by the court, prosecutor, or his own counsel.” Id. at 755.

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 “A finding that a defendant was duly admonished creates a prima facie

showing that a guilty plea was entered knowingly and voluntarily.” Martinez v.

State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). To overcome the prima facie

showing, the defendant bears the burden to show he or she did not fully understand

the consequences of the plea and suffered harm. Id. Defendants who have attested

to the voluntariness of their pleas during the initial plea hearings bear a heavy burden

to prove their pleas were involuntary in subsequent proceedings. Houston v. State,

201 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

Appellant contends his plea was not entered knowingly and voluntarily

because the record is “devoid of any evidence that [he] received any Spanish-

language assistance.” Appellant contends trial counsel’s affidavit does not state

whether trial counsel speaks Spanish or hired an interpreter to translate his advice

into Spanish for appellant. Appellant asserts trial counsel failed to advise him or

explain the plea papers in Spanish. Appellant contends the trial court’s fact finding

that he received his probation conditions in Spanish is irrelevant and does not

support a conclusion that he received any assistance in understanding his plea;

instead, he contends it supports his contention that he did not receive a Spanish

translation of the plea papers. Without evidence that he received assistance in

Spanish, appellant contends the trial court could not have concluded he entered his

plea voluntarily.

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 Appellant discounts the trial court’s findings that he had the opportunity to

obtain a reporter’s record of his plea hearing and that such a record would show

whether or not he received Spanish language assistance in understanding the plea

proceedings. Appellant contends his affidavit, attesting to the absence of any

Spanish language assistance and translations of the plea papers, should prevail in the

absence of other evidence. Finally, appellant contends the absence of legal

assistance in Spanish harmed him in that he entered his plea without understanding

that he would be deported. Appellant points out that he had lived in this country for

fourteen years, his family lives here, and he asserts he would not have entered a

guilty plea if he had understood the deportation consequences of his plea.

In response, the State points out appellant failed to call any witnesses, declined

the opportunity to obtain a reporter’s record of his plea hearing, and relied only upon

his affidavit to establish that he did not understand the plea hearings. Because the

trial court found appellant’s affidavit not credible, the State contends appellant failed

to meet his burden of proof to show he entered an involuntary plea. We agree with

the State.

The record shows appellant entered a guilty plea before the trial court and

signed documents attesting to the voluntariness of his plea. The magistrate made a

finding, adopted by the trial court that appellant had been duly admonished. Under

such circumstances, a prima facie showing exists that appellant’s plea was voluntary.

See Martinez, 981 S.W.2d at 197. Moreover, the order of deferred adjudication

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contains recitals that appellant was admonished as required by law and it appeared

appellant entered his plea freely and voluntarily and was aware of the consequences

of his plea. A judgment’s recitals are binding in the absence of direct proof of their

falsity. Guerrero, 400 S.W.3d at 583. A habeas applicant attacking the

voluntariness of his plea bears the burden of defeating the ordinary presumption of

the correctness of the recitals in the judgment. Id.

Against such presumptions, appellant offers little evidence to support his

claims. The trial court expressly found the attestations in appellant’s affidavit “to

be self-serving and not credible.” We are bound by the trial court’s fact finding on

appellant’s credibility. See Torres, 483 S.W.3d at 42.

Appellant’s argument that the absence of evidence in the record should be

resolved in his favor misplaces the burden of proof he bears to show his plea was

involuntary. Appellant “has the burden to properly initiate the completion of a

record sufficient to illustrate reversible error.” Perez v. State, 261 S.W.3d 760, 764

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). When we cannot adequately

address an issue because the issue involves matters missing from the record due to

appellant’s failure to request or pay for the record, appellant effectively waives

appellate review of the affected issue. Id.; see also Houston, 201 S.W.3d at 218

(defendant who waives right to have court reporter record plea proceedings and

subsequently challenges voluntariness of plea nevertheless retains burden to ensure

sufficient record is presented to establish error); Collins v. State, No. 05-18-00498-

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CR, 2019 WL 2648168, at *2 (Tex. App.—Dallas June 27, 2019, pet. ref’d) (mem.

op., not designated for publication) (When appellant fails to file reporter’s record

necessary for appellate review, presumption arises that omitted reporter’s record

would support trial court’s judgment).

As the trial court stated on the record, a reporter’s record of the plea hearing

would show what translation services were provided to appellant when he entered

his plea. By declining the trial court’s offer to allow him to determine whether he

could obtain the reporter’s record of the plea, appellant failed to submit a sufficient

record to review his first issue. See Perez, 261 S.W.3d at 764.

Likewise, the fact that trial counsel’s affidavit, submitted by appellant, does

not reveal whether trial counsel can speak Spanish is not evidence supporting

appellant’s claims. Appellant could have called trial counsel to testify about his

ability to speak Spanish, but he failed to present such testimony. Trial counsel’s

affidavit shows eighty percent of trial counsel’s practice is representing Hispanics,

including many immigrants from Mexico and Central America. It would be

reasonable for the trial court to infer that trial counsel can speak Spanish well enough

to communicate with his Spanish-speaking clients. Moreover, in his own affidavit,

appellant avers that counsel told him he had been given probation and would not

suffer immigration consequences as a result of his plea, thus admitting that trial

counsel was able to communicate with him.

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 The Spanish language translation of appellant’s conditions of community

supervision and a requirement that he attend English language classes as a condition

of community supervision is evidence that the trial court was aware appellant did

not speak English and was accommodating his need for Spanish-language

assistance.

Viewed in the light most favorable to the trial court’s findings, the evidence

shows appellant signed plea papers indicating he understood his plea and was

making it voluntarily. In the absence of a reporter’s record that would establish

definitively what translation services appellant received during the plea hearing, the

preponderance of the available credible evidence does not support appellant’s

contention. We overrule appellant’s first issue.

Ineffective Assistance of Counsel

In his second issue, appellant contends trial counsel rendered ineffective

assistance thus rendering his guilty plea involuntary.

A habeas applicant claiming the applicant entered an involuntary guilty plea

due to ineffective assistance of counsel must satisfy the two-pronged Strickland

standard. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Torres, 483 S.W.3d at 43; see

also Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). The first prong

requires the applicant to show counsel’s performance was deficient in that it failed

to meet an objective standard of reasonableness under prevailing professional norms.

Ex parte Bowman, 533 S.W.3d 337, 349–50 (Tex. Crim. App. 2017); see also

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Strickland, 466 U.S. at 687–88. In evaluating counsel’s performance under the first

prong, we assess the reasonableness of counsel’s performance under the

circumstances of the particular case viewed at the time counsel rendered assistance.

Bowman, 533 S.W.3d at 350. We presume counsel “rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Id. at 350 (quoting Strickland, 466 U.S. at 690). Counsel’s deficient

performance must be affirmatively demonstrated on the record and not require

retrospective speculation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011). We judge the totality of trial counsel’s representation rather than focusing

narrowly on isolated acts or omissions, and the performance must be evaluated from

counsel’s viewpoint at the time of representation and not with the benefit of

hindsight. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).

The second prong requires the applicant to show counsel’s deficient

performance affected the plea process thus causing the applicant to suffer prejudice.

Hill, 474 U.S. at 59; Torres, 483 S.W.3d at 43. An applicant meets the prejudice

prong by showing a reasonable probability exists that, but for counsel’s deficient

performance, the applicant would have insisted on going to trial rather than

accepting the offer and pleading guilty. Hill, 474 U.S. at 59; Torres, 483 S.W.3d at

43. In evaluating the evidence of appellant’s decision making regarding his plea,

“[c]ourts should not upset a plea solely because of post hoc assertions from a

defendant about how he would have pleaded but for his attorney’s deficiencies.

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Judges should instead look to contemporaneous evidence to substantiate a

defendant's expressed preferences.” Lee v. U.S., 137 S. Ct. 1958, 1967 (2017).

The applicant’s claim fails unless the applicant proves both prongs of the

Strickland standard by a preponderance of the evidence. Perez v. State, 310 S.W.3d

890, 893 (Tex. Crim. App. 2010). Failure to prove either prong defeats a claim of

ineffective assistance. Id.

Deportation Advice

Under federal law, an alien convicted of a drug offense, other than possession

of a relatively small amount of marijuana, is deportable. See 8 U.S.C.A.

§ 1227(a)(2)(B)(i). Placement on deferred adjudication in Texas is considered a

conviction for purposes of federal immigration law. See Moosa v. I.N.S., 171 F.3d

994, 1005–06 (5th Cir. 1999); Guerrero, 400 S.W.3d at 588 & n.52; see also 8

U.S.C.A. § 1101(a)(48)(A).

In 2010, the Supreme Court decided Padilla v. Kentucky and pronounced that

the Sixth Amendment right to effective assistance of counsel requires counsel to

advise a non-citizen client about potential deportation. Padilla v. Kentucky, 559 U.S.

356, 366–67 (2010). When the law is “not succinct and straightforward,” counsel

must advise the client of the possibility that the plea may carry a risk of adverse

immigration consequences. Id. at 369; Torres, 483 S.W.3d at 44. When, however

a client has committed an offense that would trigger mandatory deportation under

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federal law, counsel must correctly advise the client that the client faces mandatory

deportation. Padilla, 559 U.S. at 369; Torres, 483 S.W.3d at 44.

After the decision in Padilla was announced, it was unclear for a period of

time whether Padilla would be applied retroactively or would only affect plea advice

rendered after Padilla was issued. Subsequent decisions made clear that because

Padilla announced a new rule, its specific advising requirements regarding

deportation did not apply to final convictions before Padilla was issued, and habeas

applicants challenging their pre-Padilla pleas could not benefit from its holding. See

Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013); Ex parte De Los Reyes, 392

S.W.3d 675, 679 (Tex. Crim. App. 2013).

Therefore, for cases involving pre-Padilla pleas, a habeas applicant may not

raise a Padilla claim asserting trial counsel rendered constitutionally ineffective

assistance by failing to advise the applicant about the deportation consequences of a

guilty plea; however, if the record shows counsel advised the applicant about

deportation consequences, while under no obligation to do so, the advice rendered

must be accurate or it may constitute ineffective assistance. See Ex parte Garcia,

547 S.W.3d 228, 229–30 (Tex. Crim. App. 2018).

Although he entered his plea in 2007, appellant contends Padilla applies to

his case because he was placed upon deferred adjudication and discharged in 2012

without a “final conviction.” Because Texas law does not consider placement on

deferred adjudication to be a conviction, appellant contends he did not have a final

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conviction before Padilla was decided and, therefore, Padilla should apply to his

case.

In Guerrero, the court of criminal appeals considered whether Padilla should

apply retroactively to a defendant facing deportation who had been placed on

deferred adjudication and had successfully served out his community supervision.

See Guerrero, 400 S.W.3d at 587. Because the defendant had served out his term of

community supervision, he never had a final conviction under Texas law. Id. at 587–

88. Noting that Congress had explicitly rejected the notion of treating deferred

adjudication as less than a final conviction for purposes of federal immigration law,

the court determined the defendant had a “final conviction” for purposes of applying

Padilla and federal immigration law when he was placed on deferred adjudication

in 1998 and thus Padilla would not apply retroactively to his case. Id. at 588.

Subsequent decisions have followed the reasoning of Guerrero and refused to

apply Padilla retroactively to defendants who entered pleas and received deferred

adjudication before Padilla despite the defendant not having a final conviction for

purposes of Texas law. See Ex parte Quyen Trung Ly, 409 S.W.3d 843, 843 n.1

(Tex. App.—Beaumont 2013, no pet.); see also Ex parte Huerta, No. 01-14-00644-

CR, 2015 WL 545519, at *3–4 & n.4 (Tex. App.—Houston [1st Dist.] Feb. 10, 2015,

no pet.) (mem. op., not designated for publication); Ex parte Carpio-Cruz, No. 08-

10-00240-CR, 2014 WL 5316988, at *3 (Tex. App.—El Paso Oct. 17, 2014, no pet.).

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 Like the defendant in Guerrero, appellant was never adjudicated guilty and

thus does not have a “final conviction” under Texas law. However, also like the

defendant in Guerrero, appellant was “finally convicted” for purposes of applying

Padilla and federal immigration law at the time he was placed on community

supervision in 2007. See Guerrero, 400 S.W.3d at 588. Thus, we apply pre-Padilla

standards to determine whether appellant has shown he received ineffective

assistance of counsel. Id. at 588; De Los Reyes, 392 S.W.3d at 679.

In 2007 when appellant entered his plea, a guilty plea taken in Texas was

considered to be voluntary if the defendant was apprised of the direct consequences

of his plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999). Lack

of knowledge of a collateral consequence of the guilty plea, such as the prospect that

the guilty plea would result in deportation, was not a basis for overturning a guilty

plea as involuntary. See id.; Ex parte Roldan, 418 S.W.3d 143, 147 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). However, if an attorney, although not required

to do so, chose to offer advice about deportation consequences of a plea and

affirmatively misadvised the client, such incorrect advice could constitute

ineffective assistance. See Garcia, 547 S.W.3d at 230.

We must presume trial counsel rendered effective assistance unless deficient

performance is reflected in the record. See Bowman, 533 S.W.3d at 350; Lopez,

343 S.W.3d at 142. Noting that counsel does not remember how he advised him,

appellant asks us to accept his representation that he was affirmatively misadvised

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that there would be no immigration consequences to his plea. We are bound,

however, by the trial court’s fact finding that appellant’s affidavit is self-serving and

not credible. See Torres, 483 S.W.3d at 42.

Other than appellant’s affidavit, the only evidence in the record reflecting trial

counsel’s immigration advice to appellant is trial counsel’s affidavit. Trial counsel

averred that his standard advice, given to all clients who are not citizens, is that the

client’s criminal conviction “can and will result in deportation.” The trial court did

not make an express finding that trial counsel’s statement was credible, but did make

a finding that trial counsel’s representation that he advises each client who is not a

citizen about the adverse immigration consequences of a guilty plea was credible.

On the record before us, we cannot conclude appellant has shown he received

“affirmative misadvice” about the deportation consequences of his plea. Unlike the

advice given in Garcia, the advice appellant received from trial counsel that he “can

and will be deported” is correct. See Garcia, 547 S.W.3d at 228–29 (advising client

that conviction “would probably not result in deportation” and he “would probably

be okay” constituted affirmative misadvice when client faced mandatory removal);

see also Ex parte Ordonez, No. 07-18-00445-CR, 2019 WL 5382630, at *3–4 (Tex.

App.—Amarillo Oct. 21, 2019, pet. ref’d) (mem. op., not designated for publication)

(counsel’s pre-Padilla advice that defendant facing mandatory deportation “may” be

deported was not affirmative misadvice).

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 We conclude appellant has not shown trial counsel rendered assistance below

an objective standard of reasonableness as it existed in 2007. See Garcia, 547

S.W.3d at 230; Jimenez, 987 S.W.2d at 888; Roldan, 418 S.W.3d at 147. Thus, we

conclude appellant has not carried his burden to show a violation of the first prong

of the Strickland standard. See Torres, 483 S.W.3d at 44–45.

Because we conclude the trial court did not err in determining appellant could

not meet the first Strickland prong, we need not consider appellant’s arguments

regarding the second prong. See Strickland, 466 U.S. at 697; Perez, 310 S.W.3d at

893. We overrule appellant’s second issue.

We affirm the trial court’s order denying relief on appellant’s application for

writ of habeas corpus.

/David Evans/
DAVID EVANS
JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
191340F.U05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EX PARTE CARLOS On Appeal from the 204th Judicial
MALDONADO District Court, Dallas County, Texas
Trial Court Cause No. WX19-00005-
No. 05-19-01340-CR Q.
Opinion delivered by Justice Evans.
Chief Justice Burns and Justice
Pedersen, III participating.

Based on the Court’s opinion of this date, the order denying relief on
appellant’s application for writ of habeas corpus is AFFIRMED.

Judgment entered December 22, 2020

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