Opinion
NO. 01-17-00025-CR
05-30-2019
EX PARTE ANTHONY MARTIN, Appellant
On Appeal from the 174th District Court Harris County, Texas
Trial Court Case No. 389613A
MEMORANDUM OPINION
Anthony Martin appeals from the denial of his application for a writ of habeas corpus filed under Texas Code of Criminal Procedure Article 11.072. In several issues, Martin contends that his 2010 guilty plea was involuntary due to ineffective assistance of counsel. We affirm the trial court's order denying habeas relief.
Background
Martin, a citizen of Jamaica and legal permanent resident of the United States, was charged by indictment with the first-degree felony offense of murder, committed in 1983. In 2010, Martin pleaded guilty to the offense as charged. In accordance with a plea agreement with the State, the trial court withheld a finding of guilt, placed Martin on deferred adjudication community supervision for a term of ten years, and imposed a $500 fine. Martin was represented during the pretrial process, plea negotiations, and at the time of his plea by Steven Rocket Rosen, a criminal defense attorney. Martin did not pursue a direct appeal of the trial court's order of deferred adjudication and is currently still on deferred adjudication community supervision.
Although Martin would not be eligible for deferred adjudication community supervision for a murder committed today, deferred adjudication was an available option in 1983. Compare TEX. CODE CRIM. PROC. art. 42A.102(b)(4) (West 2018) (permitting trial judge to grant deferred adjudication to defendant charged with murder only under limited circumstances inapplicable to Martin) with TEX. CODE CRIM. PROC. art. 42.12, § 3d (West 1983) (placing no limits on when trial court could place defendant on deferred adjudication community supervision).
On September 15, 2015, the United States Department of Homeland Security served Martin with a Notice to Appear (NTA)—a document that initiates federal removal proceedings—and took Martin into custody pending the outcome of the removal process. The NTA recites that Martin is a native and citizen of Jamaica; that Martin was admitted to the United States in January 9, 1972, as a legal permanent resident; and that Martin is removable from the United States because of his guilty plea and order of a ten-year term of deferred adjudication community supervision in his murder case—which constitutes a final conviction of an aggravated felony for purposes of federal immigration law.
See 8 U.S.C. § 1101(a)(48)(A) ("The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where - (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed."); State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013) (explaining that order of deferred adjudication community supervision, although not final conviction under Texas law, is final conviction for purposes of federal immigration law); 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); see also 8 U.S.C. § 1101(a)(43)(A) ("The term 'aggravated felony' means . . . murder, rape, or sexual abuse of a minor[.]"); 8 U.S.C. § 1101(a)(43)(F) ("The term 'aggravated felony' means . . . a crime of violence . . . for which the term of imprisonment [is] at least one year[.]").
In an effort to undo his guilty plea, Martin filed an application for a writ of habeas corpus in the trial court, alleging that his guilty plea was involuntary due to ineffective assistance of counsel because counsel failed to advise him on the immigration consequences of his plea, in violation of Strickland v. Washington, 466 U.S. 668 (1984), and Padilla v. Kentucky, 559 U.S. 356 (2010).
Martin's application for writ of habeas corpus initially included an allegation that he "did not receive the statutorily required admonishment required by Article 26.13(a)(4) from the Court at the time his plea was entered," but the record demonstrates that the required admonishment was provided and this allegation was abandoned in an amended application.
The habeas court held a writ hearing during which Martin's sister—Charmaine Heard—and Rosen provided live testimony. In addition to Heard's and Rosen's testimony, the parties offered various exhibits, including the HPD offense report; written witness statements obtained from the HPD; the plea paperwork, admonishments, order of deferred adjudication and conditions of community supervision from appellant's plea; the NTA; a "psychoeducational evaluation with competency" report from an examination of Martin; and affidavits provided by Rosen, Martin, Heard, Eric Reichenberger (Martin's immigration attorney), and Gordon Wittick (one of Martin's appellate attorneys).
At the conclusion of the hearing, the habeas court entered a written order denying Martin's request for habeas relief. The habeas court filed written findings of fact and conclusions of law in support of the court's ruling that rejected Martin's evidence and claims of prejudice and concluded that Martin failed to meet his burden to prove that his plea was involuntary due to ineffective assistance of counsel.
Habeas Court's Findings of Fact and Conclusions of Law
In its findings of fact, the habeas court found assertions that Rosen did not advise Martin on immigration consequences to be credible but found assertions that Martin would not have entered a guilty plea if he had been aware of immigration consequences to be not credible:
13. However, this Court does not find credible Applicant's self-serving representations in his affidavit and writ application that
Applicant would have rejected the plea bargain offered by the State and would have insisted on trial even if Rosen had advised Applicant that Applicant's guilty plea and term of deferred adjudication community supervision in cause number 389613 would be considered a final conviction under federal immigration law, which would subject Applicant to presumptively mandatory removal and other negative immigration consequences.Conversely, the habeas court found Rosen's assertions that Martin would have accepted the plea deal regardless of immigration consequences to be credible:
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17. However, this Court does not find credible Heard's claims that she would have encouraged Applicant to risk trial, rather than accepting the State's plea offer, if she had known of the immigration consequences of a guilty plea, particularly given that Heard acknowledged that she knew only cursory facts about the offense, and that she did not know what the State's evidence was against Applicant, or what communications Rosen and Applicant had about Applicant's guilt of the crime.
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21 However, this Court does not find credible Reichenberger's contentions that Applicant would not have entered a guilty plea if Applicant had been aware of the immigration consequences of his plea, and that Applicant's plea was involuntary.
24. Attorney Steven Rosen provided an affidavit and testified on December 2, 2016. In his affidavit, Rosen averred: "Anthony Martin, Defendant's primary concern was to not be sentenced to prison and was aware of the stipulations involved when accepting a deferred adjudication of guilt and entering into a plea agreement. Never did Anthony Martin mention or make it known to me of his U.S. Residency and or Immigration status. Therefore, I did not discuss the repercussion of deportation when he accepted the deferred adjudication guilty plea offer."
25. In his testimony, Rosen stated that he has been a licensed attorney in the State of Texas for 35 years, and that he has handled at least 20 murder cases as either a prosecutor or defense attorney. Rosen testified that, when Heard hired him to represent Applicant in this murder case, cause number 389613, Rosen reviewed the State's file and all of the State's evidence, and conducted his own investigation into the case, including by speaking to Applicant and Heard numerous times.
26. Rosen testified that he cannot recall whether any documentation in the State's file or the Court's file listed anything about Applicant being a citizen of Jamaica, not a United States citizen, and repeated that he did not hire an immigration lawyer or advise Applicant of any immigration consequences that might or would result from Applicant's guilty plea and term of deferred adjudication community supervision because he was not aware that Applicant was a noncitizen.
27. Rosen explained, however, that it would not have mattered to Applicant that he would be removable and inadmissible following a guilty plea because Applicant's overwhelming concern regarding the disposition of his case was to avoid going to prison—which the State's plea offer for deferred adjudication community supervision allowed Applicant to do. Particularly, Rosen recounted that Applicant chose to accept the State's plea deal rather than going to trial because "[Applicant] did not want to be incarcerated. He did not want to take the chance of being incarcerated."
28. Rosen continued, stating that Applicant admitted to Rosen that Applicant was guilty of the murder, and that Applicant was "high" on drugs when Applicant shot the complainant. Thus, Rosen stated that Applicant "jumped for joy" and was "[e]cstatic" when he learned of the State's plea offer for deferred adjudication community supervision on the murder charge because the offer meant that "[h]e was never going back to a jail cell."
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31. This Court finds credible Rosen's assertions in his affidavit and testimony. Specifically, this Court finds that Rosen did not advise Applicant of the presumptively mandatory immigration consequences that would follow Applicant's guilty plea and term of deferred adjudication because Rosen was not aware that Applicant is a noncitizen. However, this Court finds, as Rosen stated, that Applicant's primary concern regarding the disposition of his case was to avoid incarceration—not any effects that the case would have upon Applicant's immigration status.With respect to the evidence offered by the State, the habeas court found witness statements to be strong evidence of Martin's guilt:
33. State's Exhibit 1 is the Houston Police Department ("HPD") offense report for Applicant's murder case. State's Exhibit 2 contains the admonitions and waivers from Applicant's plea paperwork in cause number 389613, including the immigration-consequences admonition that this Court provided to Applicant, and which Applicant initialed. State's Exhibit 3 is a copy of Rosen's affidavit.The habeas court's Conclusions of Law include:
34 Among these State's Exhibits are statements by various witnesses to the murder, including Kenneth "Red" Ray Bowie, Leslie "Danny" Blair, and Rufus Banks. The Court finds that these statements, particularly Bowie's statement, provide strong evidence that Applicant is guilty of murder, as charged.
12. Among the totality of the circumstances and the record, this Court must consider the following, non-exclusive factors when assessing prejudice in the Padilla context: (i) whether the immigration consequences of the applicant's plea were the applicant's primary concern; (ii) whether there were any alternative plea offers or plausible resolutions to the applicant's case that would have prevented the applicant's removability or inadmissibility; (iii) the likelihood of conviction at trial, including the strength of the State's case and whether the
applicant had any legal or factual defenses; and (iv) the punishment and other consequences risked with a trial, compared to the benefits of the plea bargain. See Torres, 483 S.W.3d at 49-51; see also Murillo, 389 S.W.3d at 928-31.
13. In light of these factors and the entirety of the record, this Court concludes that Applicant was not prejudiced by Rosen's representation. First, because this Court specifically rejects as untrue and not credible Applicant's self-serving claims of prejudice, as well as Applicant's witnesses' claims of prejudice, this Court finds there is no credible evidence before this Court that the immigration consequences of Applicant's case and guilty plea were Applicant's primary concern at the time of his plea negotiations and plea. Rather, this Court concludes that Applicant's overwhelming, paramount concern regarding his case was to avoid incarceration, not any effect that the case would or could have upon Applicant's immigration status.
14. Second, this Court concludes that there is no evidence of any available alternative plea offers, or alternative case dispositions, that would have prevented the immigration consequences that Applicant is presently subject to.
15. Third, this Court concludes that it is likely that Applicant would have been convicted of murder at trial, given that the State's evidence against Applicant was strong and that Applicant presented no credible evidence of any valid legal or factual defenses.
16. Fourth, this Court concludes that, because a conviction at trial would have resulted in the same adverse immigration consequences that Applicant now complains of, in addition to exposing Applicant to the vastly more severe penal consequences of serving 5-99 years in prison—which Applicant specifically wanted to avoid—the State's plea offer to Applicant for a ten-year term of deferred adjudication community supervision—which did not require additional incarceration at all—and a fine of only $500 was a great deal for Applicant to resolve his murder case.
17. Thus, given the totality of the circumstances surrounding Applicant's plea, this Court concludes that Applicant failed to establish that a decision to reject the State's plea offer for a ten-year term of deferred adjudication community supervision and a fine of $500.00 for Applicant's murder case would have been rational under the circumstances.
18 Hence, this Court concludes that Applicant failed to prove by a preponderance of the evidence that Rosen's representation prejudiced Applicant for purposes of the second prong of the Strickland test for ineffective assistance of counsel.
Standard of Review
Article 11.072 of the Texas Code of Criminal Procedure "establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision." TEX. CODE CRIM. PROC. art. 11.072, § 1. Article 11.072 requires that, "[a]t the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision." Id. § 2(b). Because Martin challenges the validity of the order placing him on community supervision, we have jurisdiction to review the denial of his Article 11.072 habeas application. See id. § 8 ("If the application is denied in whole or part, the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate Procedure.").
Generally, an appellate court reviews a trial court's decision to grant or deny habeas corpus relief for an abuse of discretion. See Ex parte Montano, 451 S.W.3d 874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the evidence in the light most favorable to the trial court's ruling. See id.
In an Article 11.072 post-conviction habeas corpus proceeding, the trial judge is the sole finder of fact. See Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). We afford almost total deference to the trial court's determination of historical facts supported by the record, especially when the fact findings are based upon credibility and demeanor. Ex parte Montano, 451 S.W.3d at 877 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). And we afford the same amount of deference to the trial judge's rulings on applications of law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Guzman, 955 S.W.2d at 89). If the resolution of those ultimate questions turns on an application of legal standards, however, we review the determination de novo. Id. (citing Guzman, 955 S.W.2d at 89). We will uphold the habeas court's judgment as long as it is correct under any theory of law applicable to the case. See Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam). An appellate court reviews the evidence presented in the light most favorable to the trial court's ruling, regardless of whether the court's findings are implied or explicit, or based on affidavits or live testimony, provided they are supported by the record. See Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006); Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Applicable Law
To establish that trial counsel rendered ineffective assistance, an appellant must demonstrate, by a preponderance of the evidence, that (1) his counsel's performance was deficient and (2) there is a reasonable probability that the result of the proceeding would have been different but for his counsel's deficient performance. See Strickland, 466 U.S. at 687; Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004); see also Robinson v. State, 514 S.W.3d 816, 823 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). An appellant's failure to make either of the required showings of deficient performance or sufficient prejudice defeats the claim of ineffective assistance. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong."). Thus, when the prejudice prong of the Strickland test is dispositive, we need address only that prong on appeal. Seamster v. State, 344 S.W.3d 592, 594 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd); see Strickland, 466 U.S. at 697 (explaining that "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies" and that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and the burden is on the appellant to overcome the presumption that the challenged action constituted "sound trial strategy." Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687; see Robinson, 514 S.W.3d at 823. To prevail on an ineffective assistance claim, the appellant must provide an appellate record that affirmatively demonstrates that counsel's performance was not based on sound strategy. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding that record must affirmatively demonstrate alleged ineffectiveness). Our review is highly deferential to counsel, and we do not speculate regarding counsel's trial strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002).
A defendant has the right to effective assistance of counsel in guilty-plea proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). A guilty plea must represent a "voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970); Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). "A guilty plea is not knowing or voluntary if made as a result of ineffective assistance of counsel." Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012).
The two-pronged Strickland test applies to challenges to guilty pleas, such as the one in the present case, premised on ineffective assistance of counsel. See Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). "Specifically, when a person challenges the validity of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty to the charged offense and would have insisted on going to trial." Ex parte Harrington, 310 S.W.3d at 458 (internal quotation marks omitted). A defendant asserting a claim of ineffective assistance of counsel bears the burden of establishing both of these elements—deficiency and prejudice—by a preponderance of the evidence. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (citing Thompson, 9 S.W.3d at 813).
In Padilla, the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. 559 U.S. at 374. In the context of Padilla, plea counsel's performance is deficient under the first Strickland prong if counsel fails to advise a noncitizen defendant about deportation consequences that are "truly clear." See Padilla, 559 U.S. at 369; Aguilar v. State, 375 S.W.3d 518, 524 (Tex. App.—Houston [14th Dist.] 2012), vacated on other grounds, 393 S.W.3d 787 (Tex. Crim. App. 2013). Thus, plea counsel is deficient if counsel merely mentions the possibility of deportation when the relevant immigration provisions are presumptively mandatory. See Aguilar, 375 S.W.3d at 524 (citing United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011)). To establish prejudice under the second Strickland prong, an applicant "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372; Aguilar, 375 S.W.3d at 525. "The test is objective; it turns on what a reasonable person in the defendant's shoes would do." United States v. Smith, 844 F.2d 203, 209 (5th Cir.1988) (per curiam).
Martin entered his plea on April 30, 2010, thirty days after the March 31, 2010 issuance of the United States Supreme Court's decision in Padilla. Because Martin entered his plea after the Supreme Court decided Padilla, this is not a case in which retroactivity bars Padilla's application. See Chaidez v. United States, 568 U.S. 342, 358 (2013); Ibarra v. State, 445 S.W.3d 285, 287-88 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
"In the Padilla context, when the prejudice prong of the Strickland test is dispositive, we need address only that prong on appeal." Ex parte Obi, 446 S.W.3d at 596 (quoting Ex parte Murillo, 389 S.W.3d at 927). We make the prejudice inquiry on a case-by-case basis, considering the circumstances surrounding the plea and the gravity of the alleged failure. Id. It is not necessary to determine whether trial counsel's representation was deficient if appellant cannot satisfy the second Strickland prong. Id.
Analysis
In seven separate issues, Martin contends Rosen provided ineffective assistance of counsel in various ways and Martin was prejudiced by Rosen's alleged deficiencies. Although asserted as separate issues, six of the issues assert that Rosen failed to inform Martin of immigration consequences of his guilty plea.
Issue One: Immigration Consequences of Guilty Plea
In his first, and primary, issue Martin asserts that Rosen provided ineffective assistance of counsel by failing to inform Martin of the immigration consequences of his guilty plea. Specifically, Martin asserts that "Appellant's actions evidence that he has been committed to remaining in the United States with his family, and was prejudiced by counsel's admitted failure to inform him that his guilty plea to murder with a sentence of deferred adjudication would result in his permanent removal and exclusion from the United States." Assuming, arguendo, that Rosen's performance fell below Padilla's "presumptively mandatory" requirement, the State argues that Martin failed to establish prejudice. We agree.
A defendant seeking to establish prejudice in a Padilla case must demonstrate: (1) a reasonable probability that, but for his attorney's deficient immigration advice, the defendant would have pleaded not guilty and insisted on going to trial; and (2) that a decision to reject the plea bargain and go to trial, instead, would have been rational under the circumstances. See Ex parte Torres, 483 S.W.3d 35, 47-48 (Tex. Crim. App. 2016).
We examine whether Martin's insistence on a trial would have been rational under the circumstances by considering the following factors: (1) whether the applicant had placed a particular emphasis on the immigration consequences of a plea in deciding whether or not to accept it; (2) whether there is evidence of the applicant's guilt, (3) whether the applicant had any factual or legal defenses, and (4) how the plea deal compared to the penalties risked at trial. See Ex parte Torres, 483 S.W.3d at 48-49; Ex parte Aguilera, 540 S.W.3d 239, 249 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Ex parte Obi, 446 S.W.3d at 597; Ex parte Murillo, 389 S.W.3d at 928-31. The habeas court's conclusions of law correctly address each of these factors.
Immigration Status as Primary Concern
With respect to the first factor, courts consider whether the applicant presented evidence indicating that the immigration consequences of his plea were his "paramount concern." Ex parte Obi, 446 S.W.3d at 598. As stated in the habeas court's findings of fact, the admonishments and waivers from Martin's plea paperwork include an immigration-consequences admonishment initialed by Martin. In accordance with the requirements of Article 26.13, the immigration-consequences admonishment provides as follows:
(6) if you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense with which you are charged in this case may result in your deportation, or your exclusion from admission to this country, or your denial of naturalization under federal law.See TEX. CODE CRIM. PROC. art. 26.13(a)(4). Although Martin's affidavit provides conflicting testimony that he would have insisted on going to trial if he knew the immigration consequences of his guilty plea, this testimony was made after the fact.
The habeas court, as the finder of fact, was free to disbelieve Martin's testimony that he would not have pleaded guilty if he had been aware of the immigration consequences of his plea. See Ex parte Moreno, 382 S.W.3d at 528-29; Ex parte Fassi, 388 S.W.3d 881, 888 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Ex parte Ali, 368 S.W.3d 827, 840-41 (Tex. App.—Austin 2012, pet. ref'd). As discussed above, the habeas court explicitly found such testimony to be not credible in its findings of fact and conclusions of law. Further, the habeas court was free to disbelieve and reject as not credible Martin's witnesses' and affiants' claims of prejudice, including those made by Heard and Reichenberger. As with Martin's claims, the habeas court expressly found these claims to be not credible in its findings of fact and conclusions of law.
Conversely, the habeas court found Rosen's testimony that Martin was not prejudiced to be credible, including Rosen's assessment that "it would not have mattered to [Martin] that he would be removable and inadmissible following a guilty plea because [Martin's] overwhelming concern regarding the disposition of his case was to avoid going to prison—which the State's plea offer for deferred adjudication community supervision allowed [Martin] to do."
We defer to the habeas court's finding on these issues, as their resolution turns on an evaluation of the witnesses' credibility. See Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); see also Ex parte Thompson, 153 S.W.3d 416, 417-18 (Tex. Crim. App. 2005). Because the habeas court found Rosen's testimony concerning a lack of prejudice to be credible and found Martin's and his witnesses' representations of prejudice to not be credible, the evidence in the record supports the court's use of discretion in concluding that Martin failed to prove by a preponderance of the evidence that he was prejudiced by Rosen's deficiencies.
The Supreme Court has recognized that, under some circumstances, "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence." Padilla, 559 U.S. at 368 (quoting INS v. St. Cyr, 533 U.S. 289, 322 (2001)). However, in addition to the habeas court's finding Martin's assertion of prejudice to be not credible, Martin offered sparse evidence to support his claim that he would not have pleaded guilty had he known that his deportation was mandatory. Martin relies upon the fact that he has family in the United States and has been a long-time resident. Although connections to this country, such as familial ties and long-time residency, are indicators that it would be reasonable for a defendant to risk going to trial rather than facing deportation, these facts alone do not necessarily establish prejudice. See United States v. Kayode, 777 F.3d 719, 727 (5th Cir. 2014) (holding that defendant failed to establish prejudice even though he had familial ties in United States); see also Torres, 483 S.W.3d at 50 (viewing totality of record and deferring to habeas court's factual findings, Court of Criminal Appeals concluded that habeas court could have determined that applicant did not establish prejudice prong despite having strong ties to United States).
Here, Martin initialied an admonishment regarding the immigration consequences of his plea and there is no evidence that, upon being admonished of the immigration consequences, Martin either mentioned his immigration status or expressed concerns about deportation to the trial court, plea counsel, or anyone else. Cf. Lee v. United States, 137 S.Ct. 1958, 1967 (2017) (noting that deportation was "the determinative issue" for defendant during plea discussions); see Torres, 483 S.W.3d at 49 (noting that defendant's statements in his affidavits "make no mention of any special concern for potential immigration consequences, instead appearing to focus on a desire to avoid conviction and jail time"). Based upon this record, the habeas court could have rationally concluded that Martin's primary concern was avoiding prison rather than immigration consequences.
Accordingly, this first factor weighs against a finding of prejudice.
Evidence of Guilt
The habeas court concluded that Martin likely would have been convicted of murder at trial, given the State's evidence. The habeas court found statements by various witnesses, particularly the statement of Kenneth Ray Bowie, provided strong evidence that Martin was guilty of murder, as charged. Bowie's statement provided an eyewitness account of Martin fatally shooting the complainant at close range. Statements from other witnesses placed Martin at the scene and corroborated Bowie's statements. We defer to the habeas court's determination of historical facts supported by the record. Ex parte Montano, 451 S.W.3d at 877. Although Martin disputes Bowie's credibility, the habeas court was entitled to find these statements credible.
This second factor weighs against a finding of prejudice.
Factual or Legal Defenses
Martin does not assert any factual or legal defenses to the offense. In his habeas application, Martin asserted in conclusory fashion that he "had a number of affirmative defenses and defects that he could have raised." But Martin failed to assert any actual defense and no affirmative evidence of factual or legal defenses was presented to the habeas court. Moreover, there is no evidence in the record that Martin believed that he was not guilty of the offense. Instead, the record includes a transcript of the habeas hearing in which Rosen testified, without objection, that Martin admitted guilt. Accordingly, this third factor weighs against a finding of prejudice as well. See Murillo, 389 S.W.3d at 929 (finding against defendant on issue of prejudice when, among other considerations, defendant "presented no affirmative evidence that he had any factual or legal defenses to the charge, or that he believes he was not guilty").
Plea Deal Compared to Penalties Risked at Trial
The final factor in the prejudice analysis considers the circumstances of the plea deal compared to the penalties risked by going to trial. Ex parte Murillo, 389 S.W.3d at 930. "Although the inquiry is not whether the applicant would have received a more favorable disposition at trial, we properly consider evidence concerning the likelihood of success at trial when determining whether it would be rational to reject the plea bargain." Id. We also consider whether the applicant presented evidence showing that another plea deal would have helped him avoid negative immigration consequences. Id.
Here, the record shows that Martin received a plea deal of 10 years' deferred adjudication. If Martin had been found guilty, then he would have had a possible punishment ranging from 5 to 99 years' imprisonment. Had Martin asserted his right to trial, he faced not only the same adverse immigration consequences as those resulting from his guilty plea but also more severe penal consequences. See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). Compared to the punishment risked at trial, the plea bargain's terms were significantly more favorable. Martin did not present any evidence showing that another plea deal would have helped him avoid negative immigration consequences. See Ex parte Murillo, 389 S.W.3d at 930. This evidence, considered together, indicates that it would not have been rational for Martin to reject the State's plea deal. See id. This final factor strongly weighs against a finding of prejudice.
The record in this case establishes that there is no reasonable probability that, had Rosen informed Martin of the immigration consequences of his guilty plea, Martin would have rejected the State's plea offer, pleaded not guilty, and insisted on taking his case to trial, and that it would have been rational for Martin to have done so. Giving appropriate deference to the habeas court's factual findings, we agree that Martin failed to prove that it would have been rational for him to reject the plea deal and insist on going to trial. Accordingly, Martin's first issue on appeal is overruled.
Issues Two and Four: Appellant's Purported Intellectual Disabilities
Martin's second and fourth issues are related. In issue two, Martin asserts that "Appellant was prejudiced by counsel's failure to inform him of the immigration consequences of his plea because he is intellectually disabled and could not knowingly and willingly enter his plea and accept the very serious immigration consequences of permanent removal and exclusion." In issue four, Martin asserts that "Appellant was prejudiced by counsel's failure to investigate and ineffective counsel because as a result of his intellectual disabilities, he has a diminished capacity to understand and process the consequences of his entry of a guilty plea and acceptance of a sentence of deferred adjudication? [sic]"
Martin presents no argument as to these issues, but rather makes only the above conclusory statements which double as his headings for the issues. Martin fails to make any record citations in either issue. TEX. R. APP. P. 38.1(i) (providing appellant's brief must contain "clear and concise argument for the contentions made, with appropriate citations to authorities and record"). Nor does Martin cite any legal authority to support his conclusory propositions. Id. Rule 38.1's requirements are not satisfied by "merely uttering brief, conclusory statements unsupported by legal citations." Muhammed v. State, 331 S.W.3d 187, 195 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). A failure to cite legal authority or provide substantive analysis of a legal issue presented results in waiver of the complaint. See Stahle v. State, 970 S.W.2d 682, 692 (Tex. App.—Dallas 1998, pet. ref'd.).
Accordingly, Martin's second and fourth issues are overruled as inadequately briefed. See Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (finding that appellant's brief which contained no argument or citation to any authority "is inadequately briefed and presents nothing for review as this Court is under no obligation to make appellant's arguments for her."); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (appellate court "has no obligation to construct and compose appellant's issues, facts, and arguments 'with appropriate citations to authorities and to the record.'"); Ballard v. State, 537 S.W.3d 517, 528 (Tex. App.—Houston [1st Dist.] 2017, pet. struck) ("An issue that is conclusory and provides no supporting authority presents nothing for appellate review.").
Issues Three and Five: Counsel's Duty to Investigate
Martin's third and fifth issues both assert that Rosen failed to investigate his case. In issue three, Martin asserts that it "is clear that counsel failed to investigate Appellant's case because not only was he unaware of the lack of evidence against Appellant, counsel was also unaware of Appellant's status as a Legal Resident and Jamaican citizen, despite it appearing on numerous documents in the State's records. As a result, Appellant was prejudiced." In Issue five, Martin asserts that "Counsel's advice to Appellant, a noncitizen, to enter a guilty plea to twenty-five year old murder without having first conducted an investigation was so deficient as to constitute[] no representation at all."
A criminal defense attorney has a duty to make an independent investigation of the facts of a case. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Toledo v. State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). In defining this obligation, the United States Supreme Court has stated that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. However, the Court explained that "[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. Further, even if the defense attorney breaches his duty to investigate, he may be found ineffective only "where the result is that any viable defense available to the accused is not advanced" and there is a reasonable probability that, but for the failure to present that defense, the result of the proceeding would have been different. Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).
In both issues three and five, Martin complains that Rosen "failed to minimally investigate Appellant's case" and represents that "[t]here is neither evidence in the record nor Counsel's files that shows that Counsel investigated the case against Appellant." But the record contains evidence that Rosen investigated the case. Rosen testified that he sought and obtained the State's file and the State's evidence, reviewed that information, and conducted his own investigation into the case, including by speaking to Martin and his sister at various times. The habeas court found Rosen's testimony credible.
Martin speculates that Rosen could not have investigated the case because, if he had, he would have been aware that Martin was not a citizen. But, as discussed, the record contains evidence that Martin's primary concern was avoiding prison, not his immigration status. Because Rosen's focus in investigating the case was to keep Martin out of prison, Rosen reasonably could have considered information regarding Martin's immigration status to be immaterial to the case strategy.
With respect to his third issue, Martin also fails to demonstrate that he was prejudiced by any deficient investigation because he has not shown what information, evidence, or witnesses additional investigation might have revealed. To the extent Martin asserts that an investigation would have revealed his immigration status and led Rosen to advise him of the immigration consequences, Martin fails to demonstrate prejudice because evidence in the record indicates that (1) Martin was otherwise informed of potential immigration consequences by written admonishment, (2) the plea deal of 10 years' deferred adjudication met Martin's primary defense goal of avoiding prison, and (3) an objectively reasonable defendant in Martin's position would have accepted the plea deal even if advised of immigration consequences to avoid the likelihood of anywhere from 5 years to life in prison, before facing removal from the United States.
With respect to his fifth issue, Martin asserts that "Rosen's representation of Appellant was the equivalent of no representation and Appellant should not be required to show evidence that he would not have entered a guilty plea." We disagree with this conclusory assertion. Martin fails to demonstrate any alleged deficiencies so egregious that he essentially received no representation at all. Here, the record does not support an assertion that Rosen completely or entirely failed to subject the prosecution's case to any meaningful adversarial testing such that prejudice is presumed. See Bell v. Cone, 535 U.S. 685, 696-97 (2002) (stating that presumptively-prejudicial ineffective assistance of counsel, as analyzed in United States v. Cronic, 466 U.S. 648 (1984), applies only where attorney's failure to test prosecutor's case is "complete"); Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008) (prejudice presumed if appellant demonstrates that defense counsel "entirely failed to subject prosecution's case to meaningful adversarial testing"). Rather, the record demonstrates that Rosen investigated the charge, determined Martin's defense priorities, and negotiated a favorable plea bargain agreement placing Martin on 10 years' deferred adjudication community supervision for the offense of murder, which carries a maximum sentence of 99 years or life imprisonment.
Accordingly, Martin's third and fifth issues are overruled.
Issue Six: Counsel's Fees
Martin asserts in his sixth issue that Rosen's $25,000 fee for representing Martin was unreasonable or unconscionable and created a "personal conflict of interest." Martin's actual complaint, however, appears to be that, because Rosen charged Martin $25,000 instead of his typical $150,000 for a murder case, Rosen was less motivated to represent Martin and, thus, provided ineffective assistance of counsel. Martin did not raise this issue in his habeas application or at the hearing on the application. Accordingly, we overrule Martin's six issue because it cannot be asserted for the first time on appeal. See Ex parte Perez, 536 S.W.3d 877, 880 (Tex. App.—Houston [1st Dist.] 2017, no pet.) ("In reviewing an order denying habeas relief, an intermediate court of appeals only reviews issues that were properly raised in the habeas petition and addressed by the trial court."); TEX. R. APP. P. 33.1(a).
Issue Seven: Detention During Removal Proceedings
Similar to his argument regarding immigration consequences, Martin asserts in his seventh issue that Rosen was deficient for failing to advise that the plea would cause federal immigration officials to indefinitely detain Martin during the pendency of his removal proceedings. Martin fails to cite any authority demonstrating that Rosen had an affirmative duty to advise Martin of this particular aspect of federal immigration law—beyond counsel's duty to advise Martin that he would be subject to mandatory removal, generally. Moreover, we need not address the issue because the record demonstrates that Martin was not prejudiced by the lack of information. As discussed, the record supports the habeas court's findings of fact and conclusions of law that Martin's primary concern regarding the disposition of his murder case was to avoid incarceration in prison, not the consequences that the case would have upon his immigration status. Accordingly, we overrule Martin's seventh issue.
Conclusion
For the foregoing reasons, we conclude that the trial court acted within its discretion in denying Martin's application for habeas relief. Accordingly, we affirm the trial court's order denying habeas relief.
Sarah Beth Landau
Justice Panel consists of Justices Keyes, Higley, and Landau. Do not publish. TEX. R. APP. P. 47.2(b).