Affirmed and Memorandum Opinion filed June 21, 2018.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-16-00431-CR

               MICHAEL FERRERAS-ALCANTARA, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 183rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1498308

                 MEMORANDUM                         OPINION


      Appellant Michael Ferreras-Alcantara pled guilty without a sentencing
recommendation to possession of a controlled substance with intent to deliver. The
trial court deferred adjudication and placed appellant on community supervision for
ten years. Appellant filed a motion for new trial alleging his plea was involuntary
due to ineffective assistance of counsel, which the trial court denied by written order.
On appeal, appellant argues the trial court abused its discretion when it denied his
motion for new trial because his trial counsel failed to advise him accurately
regarding the charges he faced and the immigration consequences of a guilty plea.
We overrule this issue because appellant has not demonstrated that his trial counsel’s
performance was deficient.

                                   BACKGROUND

      Appellant is a permanent legal resident of the United States. In 2013,
appellant attempted to smuggle a large quantity of heroin through security at Hobby
Airport. Officers observed security footage that showed appellant bringing two
bags, including the one found to contain heroin, through security. The officers
observed appellant watching the bag as it went through the security checkpoint,
where the bag drew the attention of Transportation Security Administration agents.
The officers observed appellant take his other bag and then leave the security area,
abandoning the bag containing the heroin. He then boarded a plane bound for New
York. Police eventually determined that the bag appellant had abandoned contained
between 200 and 400 grams of heroin.

      Appellant was originally charged with possession of a controlled substance—
specifically cocaine—weighing at least 400 grams, with the intent to deliver (Cause
No. 1382040). The State eventually abandoned the “intent to deliver” language and
appellant agreed to plead guilty without an agreed recommendation.             Before
sentencing, appellant asked the trial court for permission to withdraw his plea, which
the trial court granted. The State dismissed Cause No. 1382040 and re-filed in April
2016, charging appellant with possession of a controlled substance—this time
heroin—weighing more than 200 but less than 400 grams, with the intent to deliver
(Cause No. 1498308). The day 1498308 was set to go to trial, appellant pled guilty
without an agreed punishment recommendation. The trial court noted on appellant’s
plea papers that he had spoken “to immigration attorney and wishe[d] to proceed

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with [his] plea.” Eric Clay, appellant’s trial counsel, confirmed in an affidavit filed
in response to appellant’s motion for new trial that appellant spoke with an
immigration attorney prior to pleading guilty. After accepting appellant’s plea, the
trial court deferred adjudication of guilt and placed appellant on ten years’
community supervision, imposed a $1,000 fine, and included a condition that he
serve six months in jail commencing thirty days after his sentencing.

      Appellant filed a motion for new trial alleging that his plea was involuntary
as a result of ineffective assistance of counsel. According to appellant, he “would
never have voluntarily pleaded guilty to an offense that would lead to certain
deportation.” Appellant stated in an affidavit attached to his motion that he had
consulted with an immigration lawyer who had advised him to plead guilty only to
a possession charge and not to a charge of manufacturing or delivering drugs.
According to appellant, the immigration attorney told him that if he pled guilty to a
possession charge, and received deferred adjudication, he “could fight [his]
deportation case.” Appellant further stated in his affidavit that he did not speak
English with proficiency and that he had asked Clay for a translator. According to
appellant, Clay told him he “did not need one because [he] had always
communicated with him in English.” Appellant also stated that he asked his trial
counsel to explain the meaning of the charge, “possession with intent to deliver.”
Appellant asserted that Clay responded “it meant the same as possession, that it was
because of the quantity that they could not say possession alone, that it didn’t make
any difference.” Finally, appellant stated that Clay spoke with his immigration
attorney, told her that the charge against him “was only possession and so [appellant
would] be okay with immigration.” Finally, appellant stated that he never intended
to plead guilty to a charge of possession with intent to deliver; he instead intended
to, and believed that he had, pled guilty only to a possession charge. According to


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appellant, Clay “misled me and I trusted him.”

       Clay, appellant’s trial counsel, filed a detailed affidavit addressing his
representation of appellant. Clay stated, among other things, that he communicated
with appellant in English throughout his two-year representation of him, and that
appellant never told him that he could not understand what Clay was telling him.
Clay also said that “at no time did [appellant] ask [him] to translate anything into
Spanish for him.” According to Clay, he advised appellant that “he can and would
be deported from the United States even if he accepted a deferred adjudication.”
Clay stated that he frequently discussed with appellant the facts and evidence
involved in his case, as well as how the case “affects his immigration status.” Clay
admitted he spoke with appellant’s immigration attorney on the day of appellant’s
plea, that he told her exactly what the charges against appellant were, and that
appellant had been offered deferred adjudication with additional conditions attached
to the offer. After speaking with the immigration attorney, Clay once again told
appellant the crime he was charged with and told him that he would be deported
even if he received deferred adjudication. Finally, Clay denied that he ever told
appellant that he “would not have any problems with immigration.”

       The trial court set appellant’s motion for hearing on June 23, 2016.1 The trial
court denied the motion in a written order signed June 27, 2016. This appeal
followed.

                                          ANALYSIS

       In a single issue on appeal, appellant argues that the trial court abused its
discretion when it denied his motion for new trial. Appellant’s position is that his


       1
         Although the Clerk’s Record indicates the trial court set appellant’s motion for hearing,
no reporter’s record is contained in the appellate record.

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guilty plea was involuntary because his trial counsel failed to inform him correctly
of the charges against him, and therefore he did not fully comprehend the
immigration consequences that would flow from pleading guilty to that charge.

I.    Standard of review and applicable law

      A guilty plea is valid only if it represents a voluntary and intelligent choice
among the courses of action open to the defendant. North Carolina v. Alford, 400
U.S. 25, 31 (1970). A guilty plea based upon erroneous advice of counsel is not
made voluntarily and knowingly. Ex parte Moussazadeh, 361 S.W.3d 684, 689
(Tex. Crim. App. 2012).

      To establish ineffective assistance of counsel, a defendant must prove that
(1) counsel’s representation fell below the standard of prevailing professional
norms, and (2) there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d 53,
55 (Tex. Crim. App. 1986) (applying Strickland standard to claims of ineffective
assistance under the Texas Constitution). An allegation of ineffective assistance
must be firmly founded in the record, which must affirmatively demonstrate the
alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the claim of ineffective assistance. Strickland, 466 U.S.
at 697.

      The Strickland test applies when the defendant contends he did not have
effective assistance of counsel in pleading guilty. Hill v. Lockhart, 474 U.S. 52, 58
(1985); Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). To provide
competent advice regarding a guilty plea, an attorney must conduct independent
legal and factual investigations sufficient to provide a firm command of the case and
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the relationship between the facts and each element of the charged offense. Ex parte
Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011), abrogated on other
grounds by Cornwell v. State, 471 S.W.3d 458, 464 (Tex. Crim. App. 2015). Our
review of counsel’s performance is highly deferential, beginning with the strong
presumption that counsel’s actions were reasonably professional and motivated by
sound strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
To satisfy the prejudice prong of Strickland in the guilty-plea context, the defendant
must show there is a reasonable probability that, but for the lawyer’s errors, the
defendant would not have pled guilty and instead would have insisted on going to
trial. Hill, 474 U.S. at 59; Torres, 483 S.W.3d at 42; Ex parte Luna, 401 S.W.3d
329, 334 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We consider the totality
of the circumstances in determining whether counsel was ineffective. Thompson, 9
S.W.3d at 813.

          When, as here, an appellant raises an ineffective-assistance claim in a motion
for new trial, we analyze the issue on appeal as a challenge to the trial court’s denial
of the motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.
App. 2004) (holding appropriate standard of review for claim of ineffective
assistance of counsel brought forth in motion for new trial is abuse of discretion);
Robinson v. State, 514 S.W.3d 816, 823 (Tex. App.—Houston [1st Dist.] 2017, pet.
ref’d).     In those circumstances, we review the trial court’s application of the
Strickland test through an abuse-of-discretion standard. Charles, 146 S.W.3d at 208.
Generally, applying this standard means that we must decide whether the trial court’s
ruling was arbitrary or unreasonable. See Webb v. State, 232 S.W.3d 109, 112 (Tex.
Crim. App. 2007). As a reviewing court, we must afford “almost total deference” to
a trial court’s determination of historical facts and its application of the law to fact
questions the resolution of which turns on an evaluation of credibility and demeanor.


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See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). This same
deferential review must be given to a trial court’s determination of historical facts
based solely on affidavits, regardless of whether the affidavits were controverted.
Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). In the absence of
express findings, we presume that the trial court made all findings, express and
implied, in favor of the prevailing party. Id. We therefore view the evidence in the
light most favorable to the trial court’s ruling, and we will uphold that ruling if it
was within the zone of reasonable disagreement. See Webb, 232 S.W.3d at 112.

II.   Appellant has not demonstrated that the trial court abused its discretion
      when it denied his motion for new trial because he did not establish that
      his trial counsel’s performance was deficient.
      In Padilla v. Kentucky, the Supreme Court applied ineffective-assistance
principles to an individual who argued that his guilty plea was involuntary because
his lawyer inaccurately advised him of the plea’s immigration consequences. 559
U.S. 356, 360 (2010). The Court determined that “advice regarding deportation is
not categorically removed from the ambit of the Sixth Amendment right to counsel.”
Id. at 366. It held that, because the terms of the statute rendering the individual
deportable were “succinct, clear, and explicit” and his plea counsel’s advice was
inaccurate, counsel was constitutionally ineffective. Id. at 368. But the Court did
not limit its holding to inaccurate advice. Instead it announced the following rule:

      When the law is not succinct and straightforward . . . , a criminal
      defense attorney need do no more than advise a noncitizen client that
      pending criminal charges may carry a risk of adverse immigration
      consequences. But when the deportation consequence is truly clear, as
      it was in this case, the duty to give correct advice is equally clear.
Id. at 369.
      Appellant argues Clay was ineffective because he failed to explain accurately
the charges appellant faced, and as a result appellant did not understand that he was

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pleading guilty to the charge of possession of 200 to 400 grams of heroin with intent
to deliver. Appellant continues that if he had known he faced a charge of possession
with intent to deliver, which carried severe immigration consequences, he would not
have pled guilty but instead would have gone to trial.

       Although the record contains evidence supporting appellant’s version of
events, it also contains Clay’s affidavit.2 In that affidavit, Clay stated that he
specifically informed appellant, as well as appellant’s immigration attorney, that
appellant was charged with possession of heroin with intent to deliver. Clay also
stated that he specifically advised appellant that he faced deportation if he decided
to plead guilty to the charge of possession with intent to deliver. Finally, Clay stated
that he had represented appellant for about two years in this case, he had always
discussed the case in English, and appellant had never indicated that he did not
understand or requested a translator. The trial court had the right to disbelieve
appellant’s evidence and to believe Clay’s affidavit testimony. See Odelugo v. State,
443 S.W.3d 131, 138 (Tex. Crim. App. 2014) (stating that “the trial court, as the
finder of fact on a motion for new trial, retains the prerogative to believe or
disbelieve any evidence the probativeness of which depends on the credibility of its
source”). Under the appropriate standard of review, we must presume that it did.
See id. (holding record “must be inspected from every reasonable vantage in the light
most favorable to the trial court’s ruling, and found to have been deficient in each,
before it may be overturned as an abuse of discretion.”).




       2
         Appellant also included with his motion for new trial an affidavit from Lara Isabel Autrey,
an immigration attorney. Autrey stated she first spoke with appellant on February 3, 2016, when
Cause No. 1382040 was pending. She further stated that she spoke with Clay on the telephone on
April 13, 2016, when Cause No. 1498308 was pending, and Clay told her that the State had reduced
the charge and appellant was getting 10 years’ deferred adjudication on a simple possession charge.

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      We conclude appellant did not meet his burden of proving by a preponderance
of the evidence that Clay performed deficiently in handling appellant’s guilty plea.
We therefore conclude that the trial court did not abuse its discretion when it denied
appellant’s motion for new trial. We overrule appellant’s single issue on appeal.

                                   CONCLUSION

      Having overruled appellant’s issue on appeal, we affirm the trial court’s
judgment.




                                       /s/       J. Brett Busby
                                                 Justice



Panel consists of Justices Jamison, Busby, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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