Ex Parte Ahmed Afeef--Appeal from County Court at Law No 5 of Bexar County

No. 04-06-00393-CR and 04-06-00394-CR

EX PARTE AHMED AFEEF

From County Court at Law No. 5, Bexar County, Texas

Trial Court No. 765804 and 765805

Honorable Timothy F. Johnson, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: April 4, 2007

AFFIRMED

Pursuant to a plea bargain, Defendant Ahmed Afeef entered a plea of guilty to possession of a firearm and possession of marijuana on October 20, 2000. In accordance with the plea agreement, Afeef was sentenced to ninety days on each count, to run concurrently. Afeef subsequently filed a post-conviction application for writ of habeas corpus. Afeef asserts the trial court abused its discretion by denying the writ and that his plea was involuntary because his trial counsel was ineffective for failing to advise Afeef of the consequences of his pleas on his immigration status. The trial court denied the applications and we affirm the trial court.

Discussion

Afeef contends that his court appointed attorney failed to advise him that a plea to a weapons charge would result in deportation proceedings and mandatory detention. As such, Afeef argues that had he known the result of his plea, he would have refused to enter a plea and would have challenged the charges. We review a trial court's ruling on an application for writ of habeas corpus under an abuse of discretion standard. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (an appellate court must review the record evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion).

Although the record on appeal does not contain a transcript with regard to the actual entry of the plea, Defendant's Waiver of Constitutional Rights and Court's Admonitions were made a part of the record. Specifically, the document, signed by Afeef states: "If you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law." During the hearing on the writ, held on May 3, 2006, Afeef's counsel acknowledged the appropriate written and oral admonishments were given to Afeef. (1) Appellant argues, however, that trial counsel should have told Afeef that he was entering a plea to a weapons offense and that he would be deported - not that he "may" be deported. Trial counsel was called to testify and explained that he advised Afeef of the option to seek the advice of an immigration attorney regarding any impact on his immigration status and that Afeef chose not to do so. He further explained that Afeef had been detained for approximately thirty days and simply wanted to enter the pleas and serve his time, waiving trial counsel's advice to file a motion to suppress and to proceed to trial.

The general rule is that a guilty plea is voluntary if the defendant was made fully aware of the direct consequences of his plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) (en banc). A guilty plea is not involuntary, however, based on lack of knowledge as to some collateral consequence and any deportation consequence of a defendant's plea of guilty is considered a collateral consequence. Jimenez, 987 S.W.2d at 888-89. Moreover, the Sixth Amendment right to effective assistance of counsel in criminal prosecutions does not extend to "collateral" aspects of the prosecution. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (en banc); Perez v. State, 31 S.W.3d 365, 367 (Tex. App.--San Antonio 2000, no pet.). Trial counsel's failure to advise a defendant of the collateral consequences of a plea does not rise to the level of constitutionally ineffective assistance of counsel. See id.

Conclusion

Trial counsel advised Afeef to seek the assistance of an immigration lawyer and he chose to take the plea bargain. Afeef signed written waivers, the trial court informed Afeef of the risk of deportation and Afeef affirmatively acknowledged that he understood the court's admonishments. Nothing in this record supports a finding that defense counsel was ineffective. Furthermore, because deportation is a collateral consequence of a guilty plea, even if trial counsel failed to advise defendant of the likelihood of deportation, such a failure does not rise to the level of constitutionally ineffective assistance of counsel. See Perez, 31 S.W.3d at 367-68. Accordingly, we affirm the judgments of the trial court.

Rebecca Simmons, Justice

Do Not Publish

1. The record contains a transcript of the hearing on Afeef's Application for Writ of Habeas Corpus.