Ex Parte Rangie Shama Benjamin ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00426-CR
EX PARTE RANGIE SHAMA
BENJAMIN
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Appellant Rangie Shama Benjamin appeals the trial court’s denial of his
post-conviction application for writ of habeas corpus. 2 We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Code Crim. Proc. Ann. art 11.09 (West 2005); Ex parte Bone, 25
S.W.3d 728, 730 (Tex. App.—Waco 2000, no pet.) (“We do not have original
jurisdiction over an 11.09 habeas corpus application; rather, we exercise
appellate jurisdiction over a trial court’s ruling on such an application.”).
Background Facts
Appellant is a conditional resident of the United States and a native and
citizen of Dominica. In September 2012, Appellant was charged with felony
aggravated assault family violence, which was later reduced to misdemeanor
assault family violence. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp.
2013) (stating that it is a misdemeanor to “intentionally, knowingly, or recklessly
cause[] bodily injury to another, including the person’s spouse”). On October 22,
2012, Appellant accepted a plea agreement, pleaded nolo contendere to the
misdemeanor charge, and waived his right to a jury trial. Appellant signed a form
that contained general statutory admonishments, including the admonishment
that warned him that “a plea of guilty or nolo contendere for the offense charged
may result in deportation, the exclusion of admission to this country, or denial of
naturalization under federal law.” The trial court sentenced Appellant to sixty
days’ confinement in the county jail. In January 2013, Appellant was ordered to
be removed from the United States to Dominica. See 8 U.S.C.A.
§ 1227(a)(2)(E)(i) (West 2005) (“Any alien who at any time after admission is
convicted of a crime of domestic violence . . . is deportable.”).
In July 2013, Appellant filed an application for writ of habeas corpus,
seeking to set aside the plea agreement and vacate the judgment and arguing
that his court-appointed counsel failed to advise him that his acceptance of the
plea bargain would make him eligible for deportation and removal from the
United States. He claimed that he would not have entered into the plea
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agreement had he known that he would be subject to expedited removal
proceedings by his plea and that his right to effective counsel was violated. See
U.S. Const. amend. VI.
The State answered and attached the affidavit of Appellant’s trial counsel,
Michael “Mick” Meyer. Meyer stated that on October 22, 2012, he “went over all
ramifications concerning [Appellant’s] actions, specifically with regard to
immigration issues.” The trial court denied Appellant’s application on August 19,
2013, stating that it found “that the Affidavit of Mick Meyer is credible and that
Applicant’s claims are not credible.” Appellant filed a reply to the State’s answer
on August 30, 2013 and a “Motion for Reconsideration of the Court Order
Denying Petitioner Writ of Habeas Corpus” on September 3, 2013. Appellant
filed this appeal.
Standard of Review
We generally review a trial court’s decision on an application for habeas
corpus under an abuse of discretion standard of review. See Ex parte Garcia,
353 S.W.3d 785, 787 (Tex. Crim. App. 2011). An applicant seeking post-
conviction habeas corpus relief bears the burden of establishing by a
preponderance of the evidence that the facts entitle him to relief. Ex parte
Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We consider the
evidence presented in the light most favorable to the habeas court’s ruling.
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert denied, 549 U.S.
1052, (2006). This deferential review applies even when the trial court’s findings
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are implied rather than explicit and based on affidavits rather than live testimony.
Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006). We afford
almost total deference to a trial court’s findings in habeas proceedings,
particularly when those findings are based upon an evaluation of credibility and
demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).
Discussion
To establish ineffective assistance of counsel, Appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In
evaluating the effectiveness of counsel under the first prong, we look to the
totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct fell within a wide range of reasonable
representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial. Strickland, 466
4
U.S. at 687, 104 S. Ct. at 2064. In other words, Appellant must show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. The
applicant must show that “he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370
(1985). “[He] must convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.” Padilla v. Kentucky, 559
U.S. 356, 372, 130 S. Ct. 1473, 1485 (2010).
As to evidence supporting the second Strickland prong, all that was before
the trial court was Appellant’s and his trial counsel’s affidavits. In his affidavit,
Appellant stated,
Had my attorney advised me that my plea agreement would
[have] caused me to be deported, that information would have been
relevant and essential to my decision whether or not to enter a plea
of nolo contendere. I would not have considered that information a
secondary or collateral consideration to my decision whether to enter
the plea, but rather the essence of my decision.
If I would have known that my admission of guilt along with the
terms of the plea agreement would have caused removal
proceedings, my decision[]making in regards to the charged
information would have been substantially different.
Appellant did not testify to his innocence or to any evidence of a defense, nor did
he argue any circumstances that would have made rejecting the plea agreement
a rational choice. 3 See Ex parte Murillo, 389 S.W.3d 922, 931–32 (Tex. App.—
3
Even if we consider Appellant’s reply, filed after the trial court’s order
denying the petition, the only further statement that Appellant makes in the
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Houston [14th Dist.] 2013, no pet.) (“Aside from applicant’s own self-serving
statement that he would have insisted his counsel take his case to trial had he
known he would be deported, he presented no other evidence corroborating his
position that it would have been rational to reject a plea deal under the
circumstances.”).
The police report stated that Appellant held a large barbeque fork near his
wife’s neck and threatened to kill her because she looked through his phone and
found text messages to another woman. He struck her in the mouth with his
knee. She then escaped to a nearby parking lot where she called the police.
Police officers saw Appellant’s wife’s “swollen upper lip.” The report also stated
that Appellant had a previous arrest for family violence. Appellant was originally
charged with a felony, but his charge was reduced to a Class A misdemeanor
over a month before the plea agreement. See Tex. Penal Code Ann. § 22.01(b).
It was Appellant’s burden to prove that he was prejudiced by his counsel’s
alleged deficient performance. In light of the evidence, the trial court could have
disbelieved Appellant’s statements and reasonably concluded that it would not
have been rational under the circumstances for Appellant to reject the plea
bargain and go to trial. See Ex parte Ali, 368 S.W.3d 827, 840–41 (Tex. App.—
Austin 2012, pet. ref’d) (noting that the trial court is not required to believe factual
attached affidavit is, “Had Mr. Meyer advised me about the immigration
consequences as a result of my plea, I would have gone to trial and not have
accepted the plea offer.”
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statements in an affidavit and that the appellate court must defer to the trial
court’s credibility determination).
Appellant argues that the trial court erred by refusing to hold an evidentiary
hearing on Appellant’s petition. It was within the trial court’s discretion to hold a
hearing. See Tex. Code Crim. Proc. Ann. art. 11.09; Balderas v. State, No. 01-
06-00472-CR, 2007 WL 1299799, at *3 & n.7 (Tex. App.—Houston [1st Dist.]
May 3, 2007, no pet.) (mem. op.) (“Article 11.09 of the Texas Code of Criminal
Procedure, which specifically applies to persons seeking habeas relief who are
confined on misdemeanor charges, does not require a trial court to conduct a live
evidentiary hearing and afford a party the opportunity to present live testimony on
an application filed under the article.”); Ex parte Fisher, No. 03-04-00786-CR,
2005 WL 3076937, at *3 (Tex. App.—Austin Nov. 17, 2005, no pet.) (mem. op.,
not designated for publication) (“[T]he court was entitled to determine from its
face whether the application could be resolved without a hearing.”). Although
Appellant argues that he presented evidence regarding the ineffective assistance
prong of Strickland, he failed to present any evidence on, or even address, the
prejudice prong of Strickland. The trial court could have determined that a
hearing would not be necessary because Appellant had not attempted to meet
the second Strickland prong. We therefore affirm the trial court’s denial of
Appellant’s post-conviction application for writ of habeas corpus.
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LEE GABRIEL
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 27, 2013
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