Ex Parte Mirna Briceno De Aguil v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00339-CR
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EX PARTE MIRNA BRICEÑO DE AGUIL

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On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 24-04-05743
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MEMORANDUM OPINION

Mirna Briceño de Aguil (“Aguil” or “Appellant”) appeals from the habeas

court’s denial of an application she filed for habeas relief under article 11.072 of the

Texas Code of Criminal Procedure. 1 See Tex. Code Crim. Proc. Ann. art. 11.072. In

the application, Appellant asked the habeas court to overturn a deferred adjudication

order the trial court signed in May 2024 (“Deferred Adjudication Order”) after

Appellant pleaded guilty to an indictment charging her with felony possession of a

1
We note that the clerk’s record refers to Mirna Briceño de Aguil as Mirna
Janeth Arias Briceño de Aguilar and Mirna Arias.

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controlled substance. See Tex. Health & Safety Code Ann. § 481.115(b). Appellant

complained her guilty plea was involuntary because she relied on her plea counsel’s

affirmative misrepresentation regarding the immigration consequences of her guilty

plea. Appellant maintained that she was denied effective assistance of counsel due

to her plea counsel’s failure to investigate, accurately advise her of the immigration

consequences of her plea, and allow her time for consultation and reflection before

pleading guilty. Appellant argued that under the totality of the circumstances–

including her limited English proficiency, lack of legal experience, and rushed plea

consultation–her guilty plea fails to meet the constitutional standards of being

knowing, intelligent, and voluntary.

Without conducting a hearing, the habeas court denied Appellant’s writ

application seeking relief from the Deferred Adjudication Order. The habeas court’s

order includes findings of fact and conclusions of law, which explain why the habeas

court concluded that Appellant failed to prove she was denied effective assistance

of counsel and to establish her plea was involuntary. See Tex. Code Crim. Proc. Ann.

art. 11.072, § 7(a). Appellant appealed the denial of her application. See id. § 8. We

affirm the trial court’s order.

BACKGROUND

Appellant, a native of Honduras, was a lawful permanent resident and

longtime resident of Texas when she pleaded guilty to possession of a controlled

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substance and was placed on deferred adjudication community supervision.

Appellant is married to a lawful permanent resident with whom she has two children

who are both citizens of the United States. In her 11.072 writ application seeking

habeas relief, Appellant stated that her court-appointed plea counsel advised her that

her plea would have no effect on her immigration status, and she relied on that advice

and accepted the plea offer without understanding that it would trigger mandatory

deportation and immigration detention. Aguil entered a plea of guilty on May 7,

2024. The trial court deferred a finding of guilt and placed Aguil on community

supervision for a period of two years with standard conditions. In February 2025,

Appellant was detained by Immigration and Customs Enforcement (ICE) and placed

in removal proceedings based solely on the deferred adjudication order resulting

from the plea of guilty.

Appellant explained that her plea counsel did not give her time to consult with

an immigration attorney or to meaningfully comprehend the consequences of her

plea. Appellant maintained that she had limited proficiency in English, that she

assessed as a “4 out of 10” and was able to communicate at a basic level in specific

work-related context, but her limitations “significantly impaired her ability to

participate in her defense and to make an informed decision regarding her guilty

plea.” Appellant stated her English ability is “wholly insufficient for navigating legal

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proceedings, understanding the consequences of a guilty plea, or evaluating the

implications of criminal convictions on her immigration status.”

Appellant sought habeas relief on three grounds: (1) involuntary plea due to

plea counsel’s affirmative misrepresentation of immigration consequences; (2)

ineffective assistance of counsel; and (3) plea was not knowing, intelligent, or

voluntary under the totality of the circumstances. Appellant explained that she met

with her court-appointed plea counsel, Christopher Allen (“Allen”), immediately

before her plea hearing, and during their brief interaction, Allen learned she had

limited English proficiency, summoned an interpreter, and advised her to plead

guilty and accept a deferred adjudication agreement. Appellant stated she was unable

to follow much of the conversation either in English or Spanish and only understood

that the case would eventually be dismissed and her criminal record would remain

clean. Appellant stated that she specifically asked the interpreter whether the plea

would affect her immigration status, and both the interpreter and Allen “responded

unequivocally that it would not.” Appellant explained that Allen did not inform her

that pleading guilty would result in mandatory deportation proceedings or explain

the serious consequences of a conviction for a controlled substance offense.

Appellant was not given an opportunity to postpone the case to obtain competent

immigration advice. Appellant stated that had she been properly advised, she would

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have rejected the plea and proceeded to trial. Appellant attached her sworn affidavit,

which is in Spanish and not accompanied by an English translation.

At the habeas court’s request, Allen submitted an affidavit, in which he stated

that he had a Spanish speaking law partner and two Spanish speaking staff members

who handle many Spanish speaking clients. Allen handles a high volume of clients

who are not United States citizens and is careful in navigating potential immigration

issues with such clients. Allen always explains that he is not an immigration attorney

and that clients need to consult an immigration attorney if they have any questions

concerning how the resolution of their case would affect their immigration status.

Allen was aware Appellant was a lawful resident and not a United States citizen, and

he explained that his actions in Appellant’s case conformed to his general practice

with clients who are not United States citizens.

Allen’s conversation with Appellant consisted almost entirely of immigration

issues, and Allen discussed Appellant’s criminal case and told her he had received

an offer of deferred adjudication, which would prevent her from going into custody

as a consequence of her criminal case. Allen also explained that a guilty plea would

adversely affect Appellant’s immigration status and result in mandatory deportation

that would not be effected in court at the time of her guilty plea. Allen explained

Appellant had the option to go to trial, the merits of the State’s case, his reservations

about being successful at trial, and that a guilty plea or conviction by a jury would

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result in mandatory deportation, but that Appellant would not be immediately taken

into custody following her plea. Allen stated that his conversation with Appellant

was translated into Spanish by his legal assistant.

Allen explained that after informing Appellant about the immigration

consequences, Appellant wanted to accept the State’s plea offer, and Appellant

confirmed she understood that a guilty plea would trigger mandatory deportation and

immigration detention. Allen believed Appellant understood the immigration

consequences of entering into the plea agreement and that she intelligently,

knowingly, and voluntarily waived her rights and entered a plea of guilty. Allen

explained Appellant was not taken into custody after her plea and that her primary

goal appeared to be maintaining her freedom and not going into custody

immediately. In fact, Aguil was not detained until February 2025. Allen stated

Appellant made her decision to plead guilty after being informed about the

consequences and given the opportunity to discuss any matters with an immigration

attorney.

The State filed an Answer to Appellant’s writ application, arguing Appellant

failed to meet her burden to prove that Allen’s erroneous advice rendered her plea

involuntary. The State argued that Appellant’s affidavit was not properly before the

habeas court because it was not accompanied by a sworn English translation. The

State argued that Appellant’s signed admonitions provide a prima facie showing that

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her guilty plea was knowing and voluntary. The State also argued that Appellant’s

untranslated affidavit fails to rebut the presumption that there was regularity with

respect to her guilty plea absent a showing of the contrary or show that Appellant

was misled about the consequences of her plea. The State noted that Allen’s affidavit

rebuts Appellant’s unsupported factual assertions. The State argued Appellant’s

claim about Allen’s ineffectiveness was not firmly founded in the record,

Appellant’s statements alone are insufficient to overcome the presumption that

Allen’s conduct fell within the wide range of reasonable professional assistance, and

Appellant failed to demonstrate that she would have rejected the plea offer and

insisted on going to trial but for Allen’s advice.

The habeas court signed an order denying Appellant’s request for habeas

relief. The order includes findings of fact and conclusions of law. The trial court

found, among other things, that Allen’s affidavit was credible; Appellant’s

untranslated Spanish affidavit fails to provide competent evidence in support of her

claims; Appellant’s claims in her writ application that Allen advised her that her

guilty plea would have no effect on her immigration status and that she could not

understand Allen’s advice, even as translated into Spanish, were not credible; the

habeas court was familiar with Allen’s performance and Allen was well qualified

for appointment in felony cases; Allen communicated with Appellant using his

Spanish-speaking assistant and credibly asserts that Appellant seemed to understand

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and communicated well with him about the issues discussed; Allen credibly averred

that he advised Appellant that a deferred adjudication plea to the charged drug

offense would result in immigration detention and mandatory deportation; and Allen

credibly states that Appellant understood the immigration consequences and chose

to enter a guilty plea, which he believed was motivated by her desire to delay

detention.

The habeas court concluded that an evidentiary hearing was not required

because there remained no previously unresolved issues of material fact to the

legality of Appellant’s conviction and sentence; Appellant failed to prove that she

was denied her right to the effective assistance of counsel; and Appellant failed to

establish that her plea was involuntary.

Appellant filed a Motion for Reconsideration and Leave to File Applicant’s

Affidavit with Translation to Resolve Material Factual Disputes. Appellant sought

leave to supplement the record with a certified English translation of her sworn

affidavit that supports Appellant’s ineffective assistance claim and stated that the

lack of a certified English translation was a curable filing oversight and not a

substantive deficiency. Appellant’s habeas counsel explained that she did not

exercise due diligence in supervising the work assigned to another attorney, who

inadvertently overlooked filing Appellant’s translated affidavit along with the writ

application. Appellant included the sworn affidavit of the attorney who failed to file

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Appellant’s translated affidavit, and that attorney explained that the failure was a

mistake on her part alone.

Appellant stated that “every material statement from [her] affidavit was

incorporated ad verbatim into the body of the verified Writ petition[,]” and that her

“pleading thus presents those facts in English under oath, satisfying the legal

requirements for admissibility and credibility.” Appellant argued that the trial court

had “competent, verified factual allegations warranting full consideration, even

without the translated affidavit.” Appellant asked the habeas court to reconsider its

ruling, admit a certified English translation of Appellant’s affidavit, and vacate its

order and schedule an evidentiary hearing to resolve any material factual disputes.

Appellant attached an English translation of her sworn affidavit, which directly

contradicts Allen’s affidavit and states Allen did not inform her that pleading guilty

would put her in mandatory deportation proceedings, and Appellant argued that her

affidavit raises a factual dispute concerning her ineffective assistance claim that

warrants an evidentiary hearing for a credibility determination. The trial court did

not reconsider its ruling, and Appellant appealed the denial of her writ application.

ANALYSIS

Appellant complains that the habeas court abused its discretion in denying her

writ and failing to conduct an evidentiary hearing. Appellant argues that Allen’s

affidavit is not credible and since the trial court did not hold an evidentiary hearing,

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the trial court did not have sufficient information upon which to exercise its

discretion. Appellant argues the trial court’s abuse of discretion includes:

disregarding her sworn affidavit and ignoring her meritorious claim of ineffective

assistance based on a curable procedural defect; finding Allen’s affidavit credible;

failing to correctly assess prejudice; and adopting the State’s proposed findings of

facts.

In reviewing the trial court’s denial of a habeas petition, we “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.” Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App. 2006) (citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.

2003)). A trial court abuses its discretion if it acts “arbitrarily, unreasonably, or

without reference to the guiding principles of law in the case[,]” but does not abuse

its discretion so long as its ruling lies within “the zone of reasonable disagreement.”

See Ex parte Gallow, 602 S.W.3d 605, 608–09 (Tex. App.—Beaumont 2020, no

pet.) (citations omitted). In reviewing an appeal from a habeas court’s ruling on an

11.072 writ, we give the habeas court almost total deference as to its findings of fact

if its findings are supported by the record. See State v. Guerrero, 400 S.W.3d 576,

583 (Tex. Crim. App. 2013). When the habeas court has resolved the habeas

proceedings based on a factual dispute turning on the habeas court’s evaluation of

the credibility and demeanor of witnesses, even if no witnesses testify and all

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evidence is submitted through affidavits, an appellate court will not overturn the

habeas’s ruling unless the applicant established that the habeas court abused its

discretion in reaching its findings. Id.

Evidentiary Hearing

Appellant argues the habeas court abused its discretion by failing to conduct

an evidentiary hearing. Article 11.072 does not require the habeas court to resolve

any factual disputes by holding a hearing. See Tex. Code Crim. Proc. Ann. art.

11.072, §§ 6(b)-(c), 7(a). Article 11.072 gives the trial court discretion in resolving

factual disputes, allowing it to “order affidavits[]” or to “rely on the court’s personal

recollection.” Id. § 6(b); see Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—

Fort Worth 2005, no pet.). This Court has held that a habeas court is not required to

hold an oral hearing to determine whether to deny an 11.072 writ application alleging

ineffective assistance of counsel. Ex parte Franklin, 310 S.W.3d 918, 922 (Tex.

App.—Beaumont 2010, no pet.). Additionally, the habeas court is allowed to rely on

its personal recollection in finding Allen credible, based on its familiarity with

Allen’s performance in court. See Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b).

Since article 11.072 allows the habeas court to determine the merits of Appellant’s

claims based on the face of an application, affidavits, and its personal recollection,

the habeas court did not abuse its discretion by failing to conduct an evidentiary

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hearing. See id. §§ 6(b), 7(a); Ex parte Franklin, 310 S.W.3d at 922; Ex parte

Cummins, 169 S.W.3d at 757-58.

While Appellant complains the trial court abused its discretion by

disregarding her sworn affidavit and ignoring her meritorious claim of ineffective

assistance based on a curable procedural defect, Appellant stated in her brief that the

trial court had “competent, verified factual allegations warranting full consideration,

even without the translated affidavit.” Appellant explained that “every material

statement from [her] affidavit was incorporated ad verbatim into the body of the

verified Writ petition[,]” and the trial court found that Appellant’s claims in her writ

application were not credible. Thus, the trial court’s order shows the trial court

considered Appellant’s ineffective assistance claim despite her failure to include an

English translation of her sworn affidavit. That said, the trial court was not required

to consider Appellant’s untranslated Spanish affidavit with no accompanying

English translation. See Tex. R. Evid. 101(e)(3)(a), 1009; Leal v. State, 782 S.W.2d

844, 849-50 (Tex. Crim. App. 1989); Borski v. State, 225 S.W.2d 180, 181 (Tex.

Crim. App. 1949).

Ineffective Assistance

Appellant complains the habeas court erred by rejecting her ineffective

assistance claim due to Allen’s alleged failure to: investigate her case, accurately

advise her of the immigration consequences of her guilty plea, allow her time to

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consult an immigration attorney and reflect before pleading guilty, and verify her

comprehension. Appellant argues that Allen’s assertations in his affidavit, including

informing her that pleading guilty would trigger mandatory deportation and

immigration detention, were not credible.

Article 11.072 of the Code of Criminal Procedure allows a defendant

convicted and sentenced to community supervision to challenge the legal validity of

her conviction by filing a writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art.

11.072, §§ 1, 2. In the habeas court, the “applicant bears the burden of proving, by a

preponderance of the evidence, the facts that would entitle h[er] to relief.” Ex parte

Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002) (citations omitted). In a

habeas proceeding where the applicant complains about ineffective assistance of

counsel involving a plea bargain, she bears the burden of proving (1) her attorney’s

advice about the plea offer did not fall within the wide range of competence

demanded of attorneys in criminal cases, and (2) her attorney’s errors affected the

outcome of the process that resulted in the defendant’s plea. See Hill v. Lockhart,

474 U.S. 52, 58–59 (1985); Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App.

2016); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). As the

applicant seeking habeas relief, Appellant had the burden to prove that a reasonable

probability exists that, but for her attorney’s alleged errors, she would not have

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accepted the State’s plea offer and insisted instead on going to trial. See Ex parte

Harrington, 310 S.W.3d at 458.

Under settled standards that apply to claims of ineffective assistance of

counsel, the defendant must prove the attorney who represented her performed

deficiently and the defendant suffered prejudice as a result. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Ex parte Bowman, 533 S.W.3d 337, 349-50

(Tex. Crim. App. 2017); Torres, 483 S.W.3d at 43. Courts must measure whether

the attorney was ineffective using an objective standard of reasonableness, which

turns on whether the attorney represented the defendant in a manner that fell below

the prevailing professional norms. Strickland, 466 U.S. at 687-88; Ex parte Bowman,

533 S.W.3d at 349-50; Torres, 483 S.W.3d at 43. We examine the totality of the

representation in making this determination. See Courtney v. State, 39 S.W.3d 732,

737 (Tex. App.—Beaumont 2001, no pet.).

The evidence needed to prove an ineffective assistance claim must be based

on facts firmly founded in the record from the proceeding in which the claim is made.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see also Menefield

v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). The defendant who claims

to have been the victim of her attorney’s ineffective assistance has the burden to

create that record and to show that, but for her attorney’s giving her ineffective

assistance, she would not have pleaded guilty. See Strickland, 466 U.S. at 694; Ex

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parte Torres, 483 S.W.3d at 43; Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim.

App. 2013). The defendant must prove both ineffective assistance and that, rather

than pleading guilty, she would have chosen to face trial. See Ex parte Torres, 483

S.W.3d at 43 (citation omitted). In short, Appellant, as the habeas applicant, bore the

burden of proof to establish by a preponderance of the evidence that her counsel was

ineffective in one or both ways claimed. See Ex parte Richardson, 70 S.W.3d at 870.

When a person challenges the validity of a guilty plea entered upon the advice

of counsel, the voluntariness of the plea depends on whether (1) counsel’s advice

was within the range of competence demanded of attorneys in criminal cases and, if

not, whether (2) there is a reasonable probability that, but for counsel’s errors, the

person would not have pleaded guilty and would have insisted on going to trial. Ex

parte Harrington, 310 S.W.3d at 458; Ex parte Arjona, 402 S.W.3d 312, 314-15

(Tex. App.—Beaumont 2013, no pet.). The Sixth Amendment requires that the

defense attorney for a criminal defendant provide advice about the risk of

deportation arising from a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 374 (2010).

When the law is not succinct and straightforward, a defense attorney need do no

more than advise a noncitizen client that pending criminal charges may carry a risk

of deportation. Id. at 369. But the Supreme Court also explained in Padilla that if a

deportation consequence is truly clear, as when the client is subject to automatic

deportation, the duty to give correct advice is equally clear, and counsel must advise

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the client accordingly. Id.; see Ex parte Torres, 483 S.W.3d at 46. The defendant

must show that, had the immigration consequences been made known to her, a

decision to reject the plea bargain would have been rational under the circumstances.

Padilla, 559 U.S. at 372.

While Appellant claims that Allen did not advise her about the immigration

consequences of pleading guilty, Allen’s affidavit, which the trial court found to be

credible, disputes Appellant’s claim. The record includes the Admonitions to the

Defendant For Plea to Court that Appellant signed, and those Admonishments

provide a prima facie showing that Appellant’s guilty plea was knowing and

voluntary. See Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985); Ex

parte Arjona, 402 S.W.3d at 318. In the Admonishments, Appellant agreed that she

“reviewed and understood all the above indicated admonishments[]” and “was

competent and aware of the consequences of the plea.” The Admonitions state that

“[i]f I am not a citizen of the United States of America, a plea of guilty or no contest

for the offense charged may result in deportation, the exclusion from admission to

this country, or the denial of naturalization under federal law.” See Tex. Code Crim.

Proc. Ann. art. 26.13(a)(4). Allen signed the Admonitions and indicated that he

“reviewed and explained all of the above indicated admonishments with the

Defendant[]” and “believe[d] the Defendant is competent and aware of the

consequences of the plea.” The trial court also signed the Admonishments and found

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that “Defendant received and understood the above admonitions, is sane and

competent, and is aware of the consequences of the plea.”

The trial court found that Appellant’s claims in her writ application were not

credible. Appellant’s pleadings and her habeas counsel’s arguments, which are not

based on personal knowledge of events that occurred at the plea proceeding, are

alone an inadequate basis for granting habeas relief under the circumstances in this

case. See Torres, 483 S.W.3d at 49 (citations omitted). The trial court also found that

Appellant’s untranslated Spanish affidavit, which it was not required to consider,

fails to provide competent evidence in support of her claims. The trial court correctly

determined that it was not required to consider Appellant’s untranslated Spanish

affidavit since it had no accompanying English translation. See Tex. R. Evid.

101(e)(3)(a), 1009; Leal, 782 S.W.2d at 850; Borski, 225 S.W.2d at 181.

As the factfinder, the habeas court resolved the factual dispute concerning

whether Appellant was denied the effective assistance of counsel by relying on the

face of the writ application, Allen’s affidavit, and its personal recollection. See Tex.

Code Crim. Proc. Ann. art. 11.072, §§ 6(b), 7(a); Ex parte Cummins, 169 S.W.3d at

757. The trial court found that Allen’s affidavit was credible and that Allen credibly

averred that he advised Appellant about the immigration consequences of her guilty

plea and believed Appellant understood the consequences and chose to enter a guilty

plea to delay detention by immigration authorities. The trial court found that

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Appellant was able to delay her detention for approximately nine months. In his

affidavit, Allen also averred that he discussed with Appellant the facts of her case,

the potential defenses, and his reservations about the ability to be successful at trial,

which was “quite low.” Allen stated that he gave Appellant the opportunity to

discuss any of the matters with an immigration attorney.

Giving deference to the trial court’s findings of fact, we conclude the record

supports an inference that Allen advised Appellant that a guilty plea would result in

deportation, as required by Padilla. See Padilla, 559 U.S. at 369; Torres, 483 S.W.3d

at 43-46. Therefore, Appellant has failed to establish deficient performance as

required by Strickland. See Strickland, 466 U.S. at 687. Since Appellant failed to

carry her burden to establish deficient performance, we need not consider her

complaint that the habeas court failed to apply the correct legal standard to properly

assess whether she suffered prejudice. See id.; Ex parte Bowman, 533 S.W.3d at 350.

We conclude the trial court did not abuse its discretion by concluding Appellant

failed to prove that she was denied her right to the effective assistance of counsel.

Since Appellant failed to prove her ineffective assistance claim, Appellant has

also failed to show her guilty plea was involuntary due to Allen’s alleged ineffective

assistance. Thus, we also conclude the trial court did not abuse its discretion by

concluding Appellant failed to establish that her plea was involuntary. We overrule

Appellant’s issues and affirm the trial court’s order.

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AFFIRMED.

JAY WRIGHT
Justice

Submitted on February 27, 2026
Opinion Delivered May 20, 2026
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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