OPINION ON REMAND The State appeals the trial court’s order granting appellee Leonardo Fabio Garcia’s application for writ of habeas corpus and judgment vacating his conviction. In two issues the State contends the trial court abused its discretion (1) because appellee failed to establish he received ineffective assistance of counsel; and (2) appellee’s claim is barred by the doctrine of laches. Appellee was convicted on a plea of guilty to the offense of misdemeanor theft on November 19, 1998. Appellee subsequently pleaded guilty to another misdemeanor theft charge in County Criminal Court at Law No. 8 on May 15, 2007.[1] Appellee later applied for a writ of habeas corpus in which he alleged he received ineffective assistance of counsel at the time of the 2007 plea. The writ of habeas corpus was issued on May 5, 2020. After a hearing, the habeas court granted appellee’s requested habeas-corpus relief, and this appeal ensued. On original submission we dismissed the State’s appeal for want of jurisdiction. State v. Garcia, 619 S.W.3d 380, 385 (Tex. App.—Houston [14th Dist.] 2021) vacated and remanded 638 S.W.3d 679, 685 (Tex. Crim. App. 2022). On remand, we reverse and render judgment denying appellee’s requested habeas-corpus relief. Background After appellee pleaded guilty to misdemeanor theft in 2007, the trial court assessed punishment at 10 days in the Harris County Jail with credit for three days’ time served. Appellee did not appeal the 2007 conviction. On November 26, 2019 appellee received notice from the United States Department of Homeland Security that he was subject to deportation as a result of his two prior misdemeanor theft convictions. See 8 U.S.C. § 1227(a)(2)(A)(ii) (providing for deportation of “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude.”). On May 1, 2020, appellee filed an application for writ of habeas corpus pursuant to article 11.09 of the Code of Criminal Procedure in which he alleged that his guilty plea was involuntary because he was not advised of the immigration consequences of his plea. Specifically, appellee alleged that his counsel “failed to advise him of the severe immigration consequences before he entered a plea of guilty.” Appellee, citing Padilla v. Kentucky, 559 U.S. 356, 372 (2010), alleged his counsel was “deficient and that he has been prejudiced.” The State responded to appellee’s application alleging appellee failed to show that counsel was deficient and asserting the doctrine of laches. The State attached to its response the affidavit of Juan J. Aguirre, appellee’s trial counsel in 2007. Aguirre averred that on May 15, 2007, he represented appellee while working as “Attorney of the Week” in Harris County Criminal Court at Law No. 8. Aguirre did not recall the specifics of appellee’s case but discussed his standard procedure, which he followed in “any court appointed case.” Aguirre averred that when appointed to a misdemeanor case, as part of his standard procedure, he prepared several documents, including “if necessary the Acknowledgement Regarding Immigration Consequences of a Guilty Plea form.” Aguirre prepared all of the documents regardless of whether the defendant entered a plea of guilty or chose to go to trial. Aguirre reviewed the District Attorney’s file, charge, bond, defendant’s criminal history, and offense report, if available. Aguirre then proceeded to the holdover cell to confirm whether the individual was indeed the person charged and whether that individual requested a court-appointed attorney. After confirmation, Aguirre would explain the charge, range of punishment, enhancement, if any, and ask if the defendant understood the charge and possible punishment range. Aguirre averred that it was also his policy to explain the right to a jury trial and the consequences of foregoing that right. If the defendant had “a hold from immigration, parole, another policy agency, or another county,” Aguirre would explain the nature of such a hold. If the State made a recommendation as to a plea bargain and punishment Aguirre explained the recommendation and admonishments “paragraph by paragraph” asking if the defendant understood each paragraph. Aguirre would then proceed depending on whether the defendant accepted the State’s recommendation or chose to go to trial. Aguirre stated, “There is no reason to believe that Mr. Garcia’s case was any different from this procedure.” In addressing appellee’s case, Aguirre averred that there were no “plea papers” available on the District Clerk’s website for review to indicate whether appellant was given appropriate immigration admonishments. Aguirre located a “Probable Cause and Warnings document” on file, which indicated that appellee appeared before then Magistrate Frank Aguilar. The document contained no indication that appellant was not a United States citizen. Aguirre averred that if appellee would have indicated he was not a United States citizen he would have been admonished as to the immigration consequences of his plea. Aguirre knew that theft was a crime of moral turpitude as identified by federal law and would have properly admonished appellee had he known appellee was not a United States citizen. The State also attached the judgment of conviction from the 2007 theft case to its answer. The judgment recited: The Defendant waived his right of trial by jury, and pleaded as indicated above. Thereupon, the Defendant was admonished by the Court as required by law. It appearing to the Court that the Defendant is mentally competent to stand trial, that the plea is freely and voluntarily made, and that the Defendant is aware of the consequences of his plea; the plea is hereby received by the Court and entered of record. Appellee requested a hearing on his application for writ of habeas corpus, which the trial court held on June 26, 2020. At the hearing appellee testified that he was born in Honduras and came to the United States as a young child. Appellee testified that he first had “legal trouble” in 1998 when he was 17 years old and was convicted of “theft of something.” Appellee could not remember the name of his lawyer in 1998. Later, when appellee was in his twenties he was arrested for theft by check. When asked about his attorney at the time of the second arrest, appellee replied: It’s — once again, it’s been a while back and I don’t — really, I don’t recall. Even the name that y’all keep saying, Mr. Aguirre, I believe that’s what y’all are saying. I don’t, I don’t recall. I don’t recall meeting with him or nothing. When asked whether he remembered discussing his immigration status, appellee replied: No. Nobody, nobody asked me nothing about immigration. Appellee testified that he did not understand the consequences of his prior guilty pleas until he applied for citizenship. Had he known at the time that his guilty pleas would affect his application for citizenship and immigration status he would not have pleaded guilty. On cross-examination, the State asked appellee if he told his lawyer he was not a United States citizen. Appellee replied: Nobody asked me that question, so for that reason, how can I even bring that up if nobody asked me that question. I’m — I’m young. I’m scared. I mean, I’m — no. I’m sorry, but nobody asked me that question. The State introduced Aguirre’s affidavit into evidence, which was admitted by the court. On July 14, 2020, the trial court rendered judgment granting habeas relief vacating the judgment in the 2007 conviction. The trial court did not make findings of fact and conclusions of law either orally or in writing. Analysis In two issues the State challenges the trial court’s judgment granting habeas relief because (1) appellee did not establish ineffective assistance of counsel; and (2) the State was prejudiced by appellee’s delay in applying for habeas-corpus relief. Standard of Review and Applicable Law Article 11.09 of the Code of Criminal Procedure allows a party confined on a misdemeanor charge to apply for habeas relief to “the county judge of the county in which the misdemeanor [was] charged to have been committed.” Tex. Code Crim. Proc. art. 11.09. The Court of Criminal Appeals has held that the term “confined” in article 11.09 does not require actual current confinement and that the county courts at law have habeas jurisdiction if a person is merely restrained due to the conviction. Ex parte Schmidt, 109 S.W.3d 480, 482–83 (Tex. Crim. App. 2003). This court has applied the confinement standard in the immigration context concluding that a trial court has jurisdiction over an article 11.09 habeas despite the fact that the immigrant was not then in the custody of the State of Texas because pending deportation was based solely on the immigrant’s misdemeanor convictions. Phuong Anh Thi Le v. State, 300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.). An applicant seeking misdemeanor post-conviction habeas corpus relief must establish entitlement to such relief by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). The trial court sits as the fact finder in a habeas proceeding brought under article 11.09. See Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). In such cases, the habeas court is the sole judge of witness credibility, and we will not disturb its ruling absent a clear abuse of discretion. See id.; see also Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We infer all implied findings of fact that are necessary to support the habeas court’s ruling. See Ex parte Martinez, 451 S.W.3d at 856. We defer to the habeas court’s implied or explicit findings of fact that are supported by the record, whether the evidence is testimony or is submitted through affidavits. See Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006). Although reviewing courts should also grant deference to “implicit factual findings” that support the trial court’s ultimate ruling, they cannot do so if they are unable to determine from the record what the trial court’s implied factual findings are. See Ex parte Peterson, 117 S.W.3d at 819. Ineffective Assistance of Counsel Standard 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); 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 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). 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; Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). 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. 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. The trial court erred in granting habeas-corpus relief. In the habeas court appellee asserted his counsel rendered ineffective assistance at the time of his 2007 plea because counsel failed to admonish appellee on the immigration consequences of his plea. We have no record other than the trial court’s judgment affirmatively showing that appellee knowingly and voluntarily waived his constitutional rights or that he received the required admonishments because neither party was able to locate appellee’s original plea papers or a record of appellee’s plea hearing. However, the judgment recites that appellee waived his rights and received all of the admonishments required by law. In the absence of plea papers or a record of the plea hearing, we presume these recitals are correct. See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (“Those written recitals ‘are binding in the absence of direct proof of their falsity.’”) (quoting Brazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984)). Despite those recitations, appellee contends he provided direct proof to the habeas court that his attorney failed to admonish him as to the immigration consequences of his guilty plea entered in 2007. In 2010, the United States 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. When a client has committed an offense that would trigger mandatory deportation under federal law, counsel must correctly advise the client that the client faces mandatory deportation. Padilla, 559 U.S. at 369. 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 immigration consequences of a guilty plea; however, if the record shows counsel advised the applicant about immigration 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, appellee in the habeas court contended that Padilla applied to his 2007 plea because it could be applied retroactively. As we have discussed above, that is an incorrect analysis of the law. On appeal, however, appellee recognizes that the holding in Padilla does not apply retroactively, and argues that his counsel affirmatively misadvised him. Specifically, appellee argues counsel “provided affirmative misadvice when he failed to question Appellee about his citizenship and to at least notify him that there could be immigration consequences to pleading guilty[.]“ On the record before us, we cannot conclude appellee has shown he received “affirmative misadvice” about the immigration consequences of his plea. In Ex parte Garcia, the Court of Criminal Appeals explained that an affirmative misadvice claim, where an attorney is under no duty to render immigration-consequence advice but renders incorrect advice to the client, is cognizable and differs from Padilla’s imposition of an affirmative duty to advise a client of the immigration consequences of a plea in certain cases. Id. at 230. Such claims are therefore “more akin to bad- probation advice claims and bad parole-eligibility claims.” Id. We recognize that, under Garcia, affirmative misadvice regarding immigration consequences can give rise to a claim of ineffective assistance of counsel. The facts of this case, however, are distinguishable from Garcia. In Ex parte Garcia, when the defendant asked his attorney about potential adverse immigration consequences, his attorney told him that he “would probably be okay” and “the charge would probably not result in deportation.” Id. at 228–29. In short, Garcia’s trial counsel indicated that Garcia’s immigration status was not a matter of concern. Affirmative misadvice claims apply to cases in which counsel misstated the law. See, e.g., Lee v. United States, 137 S.Ct. 1958, 1963 (2017) (defendant “repeatedly asked [counsel] whether he would face deportation as a result of the criminal proceedings”; counsel advised defendant incorrectly that “he would not be deported as a result of pleading guilty”); Ex parte Garcia, 547 S.W.3d at 228 (“Garcia asked his attorney whether there would be adverse immigration consequences if he took the plea offer because he was a lawful permanent resident, and counsel responded that he ‘would probably be okay’ and that ‘the charge would probably not result in deportation.’”); Ex parte Arjona, 402 S.W.3d 312, 316 (Tex. App.—Beaumont 2013, no pet.) (counsel “volunteered advice” to defendant on possible immigration consequences of pleading guilty). In this case, however, there is no evidence that counsel volunteered advice to appellee or gave appellee incorrect advice as it related to deportation. Counsel was not required to admonish appellee of the immigration consequences of his plea in 2007 before the Supreme Court’s decision in Padilla. See Ex parte De Los Reyes, 392 S.W.3d at 679. Appellee therefore failed to carry his burden to show a violation of the first prong of the Strickland standard. The habeas court abused its discretion in holding otherwise. We sustain the State’s first issue and do not reach its second issue asserting the doctrine of laches. Conclusion We reverse the trial court’s judgment granting habeas-corpus relief and render judgment denying habeas-corpus relief, i.e., that the prior judgment entered in cause number 1413575 in the County Criminal Court at Law No. 8, Harris County, Texas, shall remain in effect. /s/ Jerry Zimmerer Justice Panel consists of Justices Bourliot, Zimmerer, and Spain. Publish — Tex. R. App. P. 47.2(b).
