
    Leonardo AGUILAR, Appellant v. The STATE of Texas, Appellee.
    No. 14-11-00227-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 10, 2012.
    
      Mark Bennett, Houston, for appellant.
    Mandy Miller, Katy, for the State.
    Panel consists of Justices FROST, SEYMORE, and JAMISON.
   OPINION

MARTHA HILL JAMISON, Justice.

Appellant Leonardo Aguilar appeals from the trial court’s denial of his application for writ of habeas corpus. Appellant, a foreign national, contends that his trial counsel in the underlying proceeding failed to apprise him of the adverse immigration consequences of a guilty plea, thus rendering his plea involuntary under Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Following the dictates of that case, we reverse and remand for further proceedings.

Background

In April 2005, appellant was charged with felony possession of less than a gram of cocaine. In October 2006, appellant pleaded guilty, and the charge was reduced to a class-A misdemeanor. As requested by the State, appellant was sentenced to ten days in jail and ordered to pay a five-hundred-dollar fíne.

Appellant filed an application for writ of habeas corpus on December 21, 2010. In an affidavit presented to the court, appellant averred that his counsel in the cocaine possession case only told him that his guilty plea could result in deportation and failed to inform him that the plea would make deportation presumptively mandatory. Appellant further stated that if his counsel had told him that a guilty plea would make deportation presumptively mandatory, he would not have pleaded guilty and would have instead insisted on a trial. He said that residence in the United States was very important to him and was the most important thing to him in respect to the underlying case.

Charles Medlin, appellant’s counsel in the underlying case, stated in his affidavit that it was his practice at the time to advise clients that a guilty plea could result in deportation, exclusion of admission, or denial of naturalization, as was also stated in the plea admonishments filed with the court. Medlin further stated that he followed that practice in this case and did not tell appellant whether a guilty plea definitely would or would not have immigration consequences.

Appellant urged the court to grant habe-as corpus relief on the ground that Medlin had provided ineffective assistance of counsel by failing to inform appellant that pleading guilty to possession of a controlled substance rendered his deportation presumptively mandatory. At the conclusion of a brief hearing, during which the two affidavits were admitted into evidence, the trial judge denied appellant’s application. The judge stated on the record that Medlin had sufficiently counseled appellant pursuant to prevailing professional norms. Neither findings of fact nor conclusions of law were requested or filed.

Habeas Corpus 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 habe-as court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006). This deferential review applies even when the trial court’s findings 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); Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004). If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003), overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007).

Guilty Pleas, Ineffective Assistance Claims & Padilla

The test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The two-pronged Strickland v. Washington test applies to challenges to guilty pleas, such as the one in the present case, premised on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under Strickland, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel’s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 687-88, 694, 104 S.Ct. 2052; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In order to satisfy the prejudice prong in a guilty plea case, a defendant or habeas corpus applicant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366.

In Padilla, the Supreme Court addressed the application of these principles where the voluntariness of a guilty plea is brought into question because a defendant’s counsel failed to apprise him or her of the immigration consequences of the plea. 130 S.Ct. 1473. The court determined that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Id. at 1481-82. After reviewing historical developments in immigration law, the court concluded that under current law, “if a noncitizen has committed a removable offense ... his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.” Id. at 1480. Moreover, preserving the opportunity to remain in the United States might be a more important consideration to a particular defendant in considering a plea offer than the possibility of incarceration. Id. at 1484.

Regarding the advice required of counsel when presented with possible immigration consequences from a guilty plea, the Court acknowledged immigration issues can be complex and indicated that the certainty of the advice could fluctuate depending on the certainty of the adverse immigration consequences. Id. at 1483. Although the Padilla Court did not reach the prejudice prong of the Strickland test, as such was not before the Court in that appeal, it did note that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id. at 1485.

Padilla Applies Retroactively

Because appellant’s conviction occurred before the Supreme Court issued its opinion in Padilla, we must first determine whether that opinion should be applied retroactively in collateral proceedings such at this habeas corpus action. Neither the Supreme Court, the Texas Court of Criminal Appeals, nor this court has addressed this issue. Two of our sister courts, the El Paso Court of Appeals and the First Court of Appeals, as well as a number of courts from other jurisdictions, have determined that Padilla should apply retroactively. See Ex parte De Los Reyes, 350 S.W.3d 723, 728-29 (Tex.App.-El Paso 2011, pet. granted); Ex parte Tanklevskaya, 361 S.W.3d 86, 93-95 (Tex.App.-Houston [1st Dist.] 2011, pet. filed); see also United States v. Orocio, 645 F.3d 630, 641 (3d Cir.2011); McNeill v. United States, No. A-11-CA495 SS, 2012 WL 369471, at *3 (W.D.Tex. Feb. 2, 2012). Other courts in other jurisdictions have disagreed, holding that Padilla does not apply retroactively. See, e.g., Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011), cert. granted,-U.S.-, 132 S.Ct. 2101,182 L.Ed.2d 867 (2012); United States v. Hong, 671 F.3d 1147, 1150-59 (10th Cir.2011). For the reasons stated in the former set of opinions and discussed below, we agree with our sister courts and the other courts holding Padilla applies retroactively.

The Court of Criminal Appeals has adopted the United States Supreme Court’s analysis in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) to determine whether a rule of law applies retroactively in Texas habeas corpus proceedings. E.g., Ex parte Lave, 257 S.W.3d 235, 236-7 (Tex.Crim.App.2008). The threshold issue under Teague is whether the rule in question is a “new rule” or an “old rule.” With two stated exceptions, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” See Teague, 489 U.S. at 310, 109 S.Ct. 1060. A rule is considered “new” if it “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or was not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis omitted); see also Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). “Old rules” are applicable on both direct and collateral review. See Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (holding Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), announced a new rule not applicable in habeas corpus proceeding because it was not dictated by precedent and was “flatly inconsistent with the prior governing precedent”).

As the split in authority suggests, the question of whether Padilla should be applied retroactively, pursuant to Teague, is a very close call. The key issue in Padilla was whether Padilla’s counsel had performed deficiently as assessed under the first prong of the Strickland test. Padilla, 130 S.Ct. at 1482. In addressing the issue, the Padilla majority grounded its determination firmly in past precedent, particularly McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and progeny (holding a defendant is entitled to the effective assistance of competent counsel in deciding whether to plead guilty); Strickland and progeny (providing rules governing the ineffective assistance of counsel analysis); and I.N.S. v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (recognizing the potentially paramount importance non-citizen clients might attach to remaining in the United States). Padilla, 130 S.Ct. at 1480-87. Moreover, Padilla did not overturn any prior precedent of the Court. See Hong, 671 F.3d at 1155.

Because of this, several courts have concluded that the majority in Padilla did not announce a “new rule,” as defined by Teague, but was simply applying existing precedent to particular facts or context regarding which the Supreme Court had not previously, explicitly spoken. See, e.g., Orocio, 645 F.3d at 639-41 (“Padilla followed from the clearly established principles of the guarantee of effective assistance of counsel.”); Tanklevskaya, 361 S.W.3d at 93-94 (discussing analyses of other courts); see also Lewis v. Johnson, 359 F.3d 646, 655 (3d Cir.2004) (explaining that because the Strickland test necessarily requires a case-by-case examination of particular circumstances, application of that test should be deemed to create a “new rule” only when it is truly novel) (citing Wright v. West, 505 U.S. 277, 305, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring in judgment)). In the terminology of Teague itself, Padilla did not “break new ground” or “impose a new obligation on the States or the Federal Government,” and was “dictated by precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301,109 S.Ct. 1060.

Many of the courts holding that Padilla does not apply retroactively rely heavily upon the Padilla concurrence by Justice Alito and the dissent by Justice Scalia for their interpretations of the Padilla majority. See, e.g., Chaidez, 655 F.3d at 689 (“That the members of the Padilla Court expressed such an ‘array of views’ indicates that Padilla was not dictated by precedent.”); Hong, 671 F.3d at 1154-56 (“We take the concurrence and dissent as support for our conclusion that reasonable jurists did not find the rule in Padilla compelled or dictated by the Court’s prior precedent.”). Justice Alito described the majority as engaging in a “dramatic departure from precedent,” and Justice Scalia likewise decried the majority’s extension of rights under the Sixth Amendment. Padilla, 130 S.Ct. at 1491 (Alito, J., concurring in judgment); id. at 1494-95 (Scalia, J., dissenting).

However, in light of the majority’s assurance that its decision was dictated by prior precedent — McMann, Strickland, St. Cyr, etc. — it seems the wiser course is to interpret the majority opinion as the majority has instructed. For this and the other reasons stated above, we join those courts that have applied Padilla retroactively.

Deficiency of Performance

To satisfy the first prong of Strickland, a defendant, or habeas corpus applicant, must show that counsel’s performance was deficient, i.e., fell below an objective standard of reasonableness. 466 U.S. at 687-88, 104 S.Ct. 2052. Both appellant and his former counsel stated in their affidavits that counsel told appellant that a guilty plea to the cocaine possession charge could result in deportation and failed to inform him that the plea would make deportation presumptively mandatory.

In its brief, the State argues that appellant’s deportation was, in fact, not presumptively mandatory, and therefore, counsel did not provide deficient advice to appellant. The federal immigration statutory provision at issue in this case, 8 U.S.C. § 1227(a)(2)(B)(i), is the exact same provision that the Supreme Court described as “presumptively mandatory” in Padilla. 130 S.Ct. at 1483. That statute provides as follows: “Any alien who at any time after admission has been convicted of a violation of ... any law or regulation of a State, the United States or a foreign country relating to a controlled substance ... is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i). The Supreme Court further described the provision as “succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction.” Padilla, 130 S.Ct. at 1483. In light of this clarity, the Court “agree[d] with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Id. at 1478. The Court further explained that when the law is not so clear, “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 1483.

Thus, under Padilla, “[a] criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.” United States v. Bonilla, 637 F.3d 980, 984 (9th Cir.2011) (emphasis in original); Tanklevskaya, 361 S.W.3d at 96. Here, counsel undisputedly only mentioned the possibility of deportation to appellant, despite the presumptively mandatory nature of the applicable immigration provision. Consequently, Padilla mandates that counsel’s performance be deemed deficient.

The State argues that the effect of the statutory provision is not as clear as the Supreme Court indicated, due to the discretion afforded to immigration officials to selectively prosecute deportation cases. Specifically, the State cites an internal memorandum issued by the Director of Immigration and Custom Enforcement, discussing various factors applicable “to a broad range of discretionary enforcement decisions,” as well as several cases discussing prosecutorial discretion in immigration matters. See Cardoso v. Reno, 216 F.3d 512, 517 (5th Cir.2000); Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th Cir.1999); State v. Golding, No. 01-10-00685-CR, 2011 WL 1835274, at *5 (Tex.App.-Houston [1st Dist.] May 12, 2011), rehearing granted, opinion withdrawn, — S.W.3d -, -, 2011 WL 2732579 (Tex.App.-Houston [1st Dist.] 2011, pet. ref d); Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, to All Field Office Directors, All Special Agents in Charge, All Chief Counsel (June 17, 2011) (“Subject: Exercising Prosecuto-rial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens”).

None of these documents, however, contradict the Supreme Court’s pronouncements in Padilla. The memorandum in particular does not even mention the provision at issue in Padilla and in the present case: 8 U.S.C. § 1227(a)(2)(B)®. Moreover, as both the memorandum and the cited cases indicate, the concept of prose-cutorial discretion in immigration matters is nothing new. See, e.g., Alvidres-Reyes, 180 F.3d at 201 (describing the United States Attorney General as having “long-established discretion to decide whether and when to prosecute ... removal proceedings”). The memorandum lists and references multiple prior memoranda on the same topic, several of which preceded Padilla by as much as 34 years. Several of the cited cases likewise preceded Padilla. See Cardoso, '216 F.3d 512; Alvidres-Reyes, 180 F.3d 199. Moreover, the Padilla majority explicitly considered the role of prosecutorial discretion in its analysis. 130 S.Ct. at 1480. Consequently, the existence of prosecutorial discretion in immigration cases does not persuade us to reject the Supreme Court’s holdings in Padilla. We remain bound by the Supreme Court’s precedent in this matter.

Prejudice

Deficient performance alone, however, does not demonstrate ineffective assistance of counsel under Strickland. The defendant or habeas corpus applicant also must demonstrate prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052. Specifically in the guilty plea context, the defendant or applicant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. The Padilla court further emphasized that “to obtain relief ... a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” 130 S.Ct. at 1485. Furthermore, a court should consider the gravity of the deficient performance as well as the circumstances surrounding the guilty plea in determining whether advice the defendant received or failed to receive impacted the decision. See Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.1999) (holding applicant established prejudice based on applicant’s own testimony and that of his plea counsel). Compare Tanklevskaya, 361 S.W.3d at 97 (holding applicant’s testimony was alone sufficient to establish prejudice), ivith Jackson v. State, 139 S.W.3d 7, 21 n. 10 (Tex.App.-Fort Worth 2004, pet. refd) (stating in dicta that affidavit alone was insufficient to demonstrate prejudice).

Here, the record is only marginally developed i*egarding the alleged prejudice. Appellant stated in his affidavit that if his counsel had told him his guilty plea would make deportation presumptively likely, he would not have pleaded guilty and would have instead insisted on going to trial. He said that residence in the United States was very important to him and was the most important thing to him in respect to the underlying case. Appellant did not provide live testimony or any specific evidence regarding the rationality of rejecting a plea bargain under the circumstances (apparently relying solely on his stance that he would have rejected the plea because residence was of paramount importance to him). The State did not provide any rebuttal evidence regarding prejudice.

We further note that, in making her ruling, the trial judge did not need to consider the prejudice prong; thus, she cannot be said to have accepted or rejected appellant’s affidavit statements. See generally Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex.Crim.App.2006) (explaining that an appellate court in a habeas corpus appeal must defer to a trial court’s factual findings even when based on affidavits). At the conclusion of the habeas corpus hearing, the judge stated that “the existing professional norms were, in fact, met by Mr. Medlin in advising [appellant] that a plea of guilty or no contest may result in ... deportation.... So I’m denying your writ.”

The “sole purpose” of a habeas corpus appeal “is to do substantial justice to the parties.” Tex.R.App. P. 31.2. Additionally, we are authorized to remand a case if further proceedings are necessary or in the interests of justice. Tex.R.App. P. 43.3. Because (1) this is a developing area of law, (2) the record is only marginally developed regarding the prejudice prong of Strickland, and (3) the trial court clearly did not rule on the prejudice prong, we sustain appellant’s sole issue and remand this case for a determination by the trial court on the prejudice prong of Strickland. See Padilla, 130 S.Ct. at 1487 (remanding for lower court’s consideration of prejudice prong).

FROST, J., dissenting.

KEM THOMPSON FROST, Justice,

dissenting.

Presuming that Padilla v. Kentucky, — U.S.—, 130 S.Ct. 1473, 176 L.E.2d 284 (2010), applies to the case under review and presuming that the performance of appellant’s trial counsel was deficient, the trial court did not abuse its discretion by impliedly finding that appellant failed to prove he was prejudiced by his trial counsel’s deficient performance. Because there is no error in the trial court’s judgment, this court may not reverse the trial court’s judgment and remand to give appellant a second chance to prove entitlement to habeas corpus relief. This court should affirm the trial court’s judgment. The trial court did not abuse its discretion by impliedly finding that appellant failed to prove he was prejudiced by his trial counsel’s deficient performance.

In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court’s ruling and uphold that ruling absent an abuse of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts arbitrarily or unreasonably. See Ex parte Wolf, 296 S.W.3d 160, 166 (Tex.App.-Houston [14th Dist.] 2009, pet. refd). A trial court abuses its discretion when its decision lies outside of the zone of reasonable disagreement. See id.

To prevail on a post-conviction writ of habeas corpus, the applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002). In habeas corpus proceedings, “[v]irtually every fact finding involves a credibility determination” and “the fact finder is the exclusive judge of the credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex.Crim.App.1996). In an article 11.09 habeas case, such as the case under review, the trial court is the sole finder of fact. See Ex parte Garcia, 353 S.W.3d 785, 787-88 (Tex.Crim.App.2011). Thus, the familiar Guzman standard of review applies in appeals from trial court judgments in article 11.09 cases. See id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. App.1997). Under this standard, the appellate court affords almost total deference to the trial court’s fact findings when the findings are supported by the record, especially when those findings are based upon an evaluation of credibility and demeanor. See Ex parte Garcia, 353 S.W.3d at 787. Even when, as in the case under review, all evidence is submitted by affidavit, the court of appeals must view the evidence in the light most favorable to the trial court’s ruling and presume that the trial court made all reasonable fact findings that could have been made against the losing party. See Ex parte Wheeler, 203 S.W.3d at 325-26.

The two-part Strickland v. Washington test applies to challenges to “guilty” pleas based on ineffective assistance of counsel. See Padilla v. Kentucky, — U.S. -, -, 130 S.Ct. 1473, 1480-82, 176 L.E.2d 284 (2010); Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 2064-68, 80 L.E.2d 674 (1984). In the trial court below, appellant had the burden of proving by a preponderance of the evidence (1) that his counsel’s performance was deficient and (2) that there is a “reasonable probability” — one sufficient to undermine confidence in the result-that the outcome would have been different but for his counsel’s deficient performance. See Padilla, — U.S. at-, 130 S.Ct. at 1482; Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim.App.2005). The Supreme Court of the United States has held that counsel’s “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel” and that the Strickland standard applies to a claim that counsel’s advice regarding the risk of deportation was deficient. See Padilla, — U.S. at-, 130 S.Ct. at 1481-82. According to the Supreme Court, “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id. at 1482. But, the extent of counsel’s advice depends on the terms of the relevant statute. When “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence” of a conviction, that is, the “deportation consequence is truly clear,” counsel’s duty to give correct advice concerning the risk of deportation is “equally clear.” Id. at 1483. On the other hand, “[w]hen 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.” Id. For the purposes of the analysis in this opinion, it is presumed that (1) the opinion in Padilla applies retroactively to the case under review, and (2) the performance of appellant’s trial counsel was deficient because he did not advise appellant that appellant’s deportation would be “presumptively mandatory” upon appellant’s conviction for the offense to which appellant pleaded “guilty.” See id

In Padilla, the Supreme Court did not change the standard for proving prejudice under Strickland, but the Supreme Court made several observations regarding proof of prejudice. See id. at 1485. The high court noted that it is often quite difficult for a person who has acknowledged his guilt to satisfy Strickland’s, prejudice prong and that “[sjurmounting Strickland’s high bar is never an easy task.”

See id. at 1485 & n. 12. The Padilla court stated that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id. at 1485.

The only evidence before the trial court when it denied appellant’s request for ha-beas relief was (1) the affidavit of an immigration attorney, (2) the affidavit of appellant’s trial counsel when appellant pleaded “guilty,” and (3) the affidavit of appellant. The first two affidavits contained no testimony relevant to Strickland’s prejudice prong. In appellant’s affidavit, the only statements arguably relevant to prejudice are the following:

“Residence in the United States of America is very important to me. In this case, it was the most important thing.
“If I had been told that plea of guilty [sic] to misdemeanor possession of a controlled substance made my deportation presumptively mandatory, I would not have pleaded guilty.
“If [appellant’s counsel] had correctly informed me about the immigration consequences of my plea, I would have pleaded not guilty and insisted on going to trial.”

The above testimony is the only evidence arguably relevant to prejudice that was before the trial court when the trial court denied appellant’s request for habeas relief. By denying this request, the trial court impliedly found that appellant’s testimony lacked credibility. See Ex parte Wheeler, 203 S.W.3d at 325-26; Clarke v. State, 305 S.W.3d 841, 848 (Tex.App.Houston [14th Dist.] 2010, pet. ref’d); Ex parte Legrand, 291 S.W.3d 31, 42 (Tex.App.-Houston [14th Dist.] 2009, pet. ref’d). As finder of fact, the trial court was free to disbelieve all of appellant’s testimony, even if that testimony was given by affidavit and was uncontroverted. See Ex parte Wheeler, 203 S.W.3d at 325-26; Ex parte Al% 368 S.W.3d 827, 840-41 (TexApp.-Austin 2012, no pet. h.); Clarke, 305 S.W.3d at 848. The trial court reasonably could have disbelieved the part of appellant’s affidavit testimony that provided the only arguable proof that a decision to reject the plea bargain would have been rational under the circumstances. See Ex parte Wheeler, 203 S.W.3d at 325-26; Clarke, 305 S.W.3d at 848. On this basis, alone, the trial court did not abuse its discretion by denying habeas relief. See Ex parte Wheeler, 203 S.W.3d at 325-26; Clarke, 305 S.W.3d at 848.

In addition, appellant’s statement that, but for his counsel’s deficient performance, he would have pleaded “not guilty” and insisted on going to trial is conclusory and thus insufficient to prove prejudice under Strickland. See Mallard v. Cain, 515 F.3d 379, 383 (5th Cir.2008); Green v. Johnson, 160 F.3d 1029, 1042-43 (5th Cir.1998); U.S. v. McDougal, Nos. l:10cv24-HSO, 1:08cr91-HSO-RHW-5, 2010 WL 4615425, at *3-4 (S.D.Miss. Nov. 4, 2010).

Appellant does not maintain his innocence. He has not asserted or presented any evidence that he had a plausible defense to the indictment against him. He has not presented evidence of circumstances indicating that rejecting the proffered plea bargain would have been rational. On this record and under the deferential standard for reviewing the trial court’s ruling on appellant’s request for habeas relief, the trial court did not abuse its discretion by impliedly finding appellant failed to prove that a decision to reject the plea bargain would have been rational. See Czere v. Butler, 833 F.2d 59, 64-65 (5th Cir.1987) (affirming denial of habeas relief, noting that trial court was not required to credit appellant’s testimony and that trial court did not err in concluding appellant failed to affirmatively prove he was prejudiced by counsel’s deficient performance regarding plea bargain); McDougal, 2010 WL 4615425, at *3-4 (concluding that defendant did not prove that a decision to reject the plea bargain would have been rational); Ex parte Ali, 368 S.W.3d at 840^41 (affirming trial court’s denial of request for habeas relief under Padilla theory because trial court did not abuse its discretion by finding appellant failed to prove prejudice); Thomas v. State, 365 S.W.3d 537, 544 (Tex.App.-Beaumont 2012, pet. filed) (holding that trial court did not abuse its discretion by finding appellant failed to prove that a decision to reject the plea bargain would have been rational). Therefore, this court should affirm the trial court’s judgment. Absent a conclusion that the trial court erred in finding that appellant failed to prove prejudice, there is no basis for reversing the trial court’s judgment and remanding to give appellant a second opportunity to prove prejudice.

The majority does not conclude that the trial court erred by impliedly finding that appellant did not prove prejudice. Nor does the majority state that the affidavits submitted by appellant were sufficient to prove prejudice. Rather, the majority indicates that appellant did not prove prejudice and then reverses the trial court’s judgment “in the interests of justice” so that appellant can have a second opportunity to prove prejudice. See ante at p. 526. The majority cites Texas Rule of Appellate Procedure 43.3, which states that “[w]hen reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered, except when (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial.” Tex.R.App. P. 43.3. Significantly, this rule applies only after an appellate court has decided that the trial court’s judgment should be reversed. Id. This rule does not give appellate courts a basis for reversing any judgment, nor does it give courts the power to reverse an error-free judgment in the interests of justice or for further proceedings on remand. See Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex.App.Houston [14th Dist.] 2007, no pet.).

The majority states that “this is a developing area of the law.” Though this statement is correct, the majority cites no authority that would allow this court to reverse an error-free judgment of the trial court because the case involves a developing area of the law.

The majority also concludes that the trial court denied relief based only upon a conclusion that appellant’s trial counsel’s performance was not deficient and not based upon a determination that appellant had failed to prove prejudice. Though the trial court stated during the habeas hearing that it thought that the performance of appellant’s trial counsel was not deficient, the trial court did not state that it denied relief solely on this basis. In addition, following the hearing the trial court signed a judgment denying relief generally, and this judgment was not limited to the first prong of Strickland. In this context, the trial court impliedly concluded that appellant did not prove entitlement to relief under either the first prong or the second prong of Strickland. See Ex parte Wheeler, 203 S.W.3d at 325-26; Ex parte Le-grand, 291 S.W.3d at 42. Because the trial court failed to file findings of fact, this court must presume that the trial court made implicit findings of fact that support the trial court’s judgment. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000). And, this court is obligated to uphold the trial court’s judgment if that judgment is supported by the record and was correct under any theory of law applicable to the case. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003); Ross, 32 S.W.3d at 855-56. This rule applies even if the trial court gave the wrong reason for its ruling. See Armendariz, 123 S.W.3d at 404; Romero, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The majority also cites Padilla, but Padilla does not support the proposition that an intermediate appellate court can reverse an error-free judgment denying habeas relief and remand to give the applicant a second chance to prove entitlement to relief. See Padilla, — U.S. at -, 130 S.Ct. at 1486-87 (reversing on discretionary review based upon error under first prong of Strickland and not addressing second prong because it was not passed on below). This court errs in reversing the trial court’s judgment.

Conclusion

The trial court did not abuse its discretion by impliedly finding that appellant failed to prove that under the circumstances in the underlying case a decision to reject the plea bargain would have been rational. There is no error in the trial court’s judgment, and this court should affirm. Because it does not do so, I respectfully dissent. 
      
      . The form plea admonishments contain the following language in paragraph 4: "CITIZENSHIP: If you are not a citizen of the United States of America, a plea of either Guilty or Nolo Contendré (No Contest) for this offense may result in your deportation, or your exclusion from admission to the country, or the denial of your naturalization under applicable federal law."
     
      
      . The Court stated that it “agree[d] with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Padilla, 130 S.Ct. at 1478. The Court later explained that the terms of the immigration statute under which Padilla himself fell were "succinct, clear, and explicit” and thus "his deportation was presumptively mandatory.” Id. at 1483. The Court further noted, however, that:
      [t]here will ... undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. 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.
      
     
      
      . As noted, the United States Supreme Court has granted certiorari in Chaidez, and the Court of Criminal Appeals has granted the petition for discretionary review in De Los Reyes. However, we do not wait on the higher courts to issue their opinions. See generally Tex.R.App. P. 31.2 ("An appeal in a habeas corpus ... proceeding will be heard at the earliest practicable time.”).
     
      
      . Although not applicable here, a new rule falls within the Teague exceptions if it: (1) places certain kinds of conduct beyond the power of the criminal law-making authority to proscribe or (2) constitutes a watershed rule change implicating the fundamental fairness of the trial. See Danforth v. Minnesota, 552 U.S. 264, 274-75, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (citing Teague, 489 U.S. at 311, 312, 313, 109 S.Ct. 1060).
     
      
      . The Padilla majority further downplayed the nature of the rule it was announcing by pointing out that for at least 15 years preceding the opinion, professional norms had imposed an obligation on counsel to provide advice regarding the deportation consequences of a guilty plea. 130 S.Ct. at 1483-85 (citing numerous practice guides). Additionally, the majority appeared to anticipate its rule being applied retroactively in habeas corpus proceedings when it analyzed the infrequent use of collateral proceedings to challenge guilty pleas under Strickland. Padilla, 130 S.Ct. at 1485-86.
     
      
      . The memorandum can be viewed on the internet at: http://www.jdsupra.com/post/ documentViewer.aspx?fid=f36c5a91-4913-4f5a-92el-3ab7ba72db4a.
     
      
      . The Padilla court, however; did not otherwise provide guidance on application of the prejudice prong in these types of cases as that particular issue had not been ruled upon by the lower courts in Padilla; instead, the Court remanded for further proceedings. 130 S.Ct. at 1487.
     
      
      . Neither party in this case presented any evidence or made any representation in the trial court regarding whether appellant was subject to any pending immigration proceedings. In the vast majority of Padilla-related habeas corpus cases reported thus far, the applicant was the subject of ongoing deportation or other immigration proceedings. Here, the record is silent on this issue. Courts in New York have held that in the absence of ongoing proceedings, a defendant could not establish prejudice due to deficient plea advice. See People v. Floyd F., No. 94K053487, 35 Misc.3d 1215, 2012 WL 1414943 at *9-10 (N.Y.Crim.Ct. Apr. 13, 2012) (discussing cases). However, since the relevant inquiry is not whether a defendant has suffered adverse consequences but whether he or she would not have pleaded guilty, it would not appear that the existence of ongoing adverse proceedings is a necessary component for an ineffective assistance claim in the Padilla context. See Hill, 474 U.S. at 59, 106 S.Ct. 366.
     
      
      . The Supreme Court of the United States decided Padilla more than eight months before appellant filed his application for writ of habeas corpus in the trial court.
     