In Ex Parte Tovilla, No. 14-10-01120-CR, 2012 WL 113049 (Tex. App.--Houston 14th Dist. Jan. 12, 2012, no pet. h.), the trial court conducted an evidentiary hearing at which it received testimony from the applicant and the two attorneys who represented him during the State's prosecution.
One of the attorneys testified that because the applicant "was a noncitizen," she had advised him that a conviction "would result or could result in deportation." Id.
The other attorney testified that after reviewing the file, he advised the applicant concerning the strength of the case, and he negotiated a plea bargain that allowed the applicant to avoid jail time. Id.
He also testified that he had explained to the applicant that pleading guilty would "amount to a conviction of a deportable offense" and the applicant understood that the "the best scenario was the plea." Id.
The applicant's testimony differed from that of his attorneys in regard to both the underlying offense and the advice pertaining to immigration consequences. Id.
And, the applicant merely stated that, if appropriately advised of the immigration consequences, he would have "looked for a good attorney" to "plead his case." Id.
Following the hearing, the trial court denied the requested relief and entered findings that the applicant had been admonished of the possibility of his removal.
The trial court further found that, in light of the "overwhelming" evidence of guilt and "lenity of the State's plea offer," it was "highly unlikely" that the applicant would not have pleaded guilty, even if properly advised. Id.
On appeal, our sister court deferred to the trial court's fact findings, noting that the finding was supported by the testimony of the witnesses and the trial court was the judge of credibility of those witnesses.