Unreported / Non-Citable
Background
In 2013, Nereyda Trevino, a legal permanent resident, pleaded guilty to two felony drug charges. The trial court deferred adjudication and placed her on community supervision for five years. After she successfully completed her supervision in 2018, the cases were dismissed. However, as a result of her pleas, Trevino was deported. In 2025, she filed applications for a writ of habeas corpus, seeking to have the judgments against her reversed.
Trevino argued that her guilty pleas were involuntary because she received ineffective assistance of counsel. She made two central claims: (1) her attorney, Dorian Cotlar, failed to properly advise her that her pleas would result in mandatory deportation, and (2) Cotlar operated under an actual conflict of interest because he also represented her co-defendant and then-partner, Ruperto Camargo, whose charges were dismissed after she pleaded guilty. Trevino submitted affidavits from herself and her daughter stating that Cotlar advised her to take the plea to benefit Camargo and assured her she would not have immigration problems.
The habeas court ordered Cotlar and his co-counsel, William R. McLellan (who acted as a Spanish-language interpreter), to respond via affidavit. Cotlar’s detailed affidavit directly contradicted Trevino’s account. He stated that the evidence against Trevino was “overwhelming,” including video of her selling cocaine, while there was no evidence against Camargo. Cotlar asserted that he repeatedly and explicitly told Trevino she *would* be deported but that the plea deal was her best option to avoid a lengthy prison sentence before her inevitable removal. He also stated that he had Trevino sign a conflict of interest waiver. The habeas court found the attorneys’ affidavits more credible, denied Trevino’s applications without an evidentiary hearing, and Trevino appealed.
The Court’s Holding
The Ninth Court of Appeals affirmed the trial court’s order denying habeas relief. The court held that the habeas court did not abuse its discretion in denying the application or in its decision not to hold a live evidentiary hearing. The appellate court emphasized that in an article 11.072 habeas proceeding, the trial judge is the sole finder of fact, and their findings must be upheld if they are supported by the record.
The court noted the direct conflict between the affidavits submitted by Trevino and her daughter and those submitted by her former attorneys. It was within the habeas court’s discretion to resolve this factual dispute by weighing the credibility of the competing affidavits. The habeas court found the detailed statements from Cotlar—a Board Certified criminal law specialist and Assistant Attorney General—and McLellan to be more credible than Trevino’s “self-serving” claims. Because the habeas court’s decision to believe the attorneys over the applicant was a reasonable credibility determination supported by the record, the appellate court found no abuse of discretion and affirmed the denial of relief.
Key Takeaways
- In a Texas state habeas proceeding under article 11.072, the trial court is the sole fact-finder, and an appellate court will afford “almost total deference” to its factual findings if they are supported by the record.
- A habeas court is not required to hold a live evidentiary hearing and can resolve factual disputes based on a “battle of affidavits,” making credibility determinations based on the written submissions.
- An applicant for habeas relief bears the burden of proving their allegations by a preponderance of the evidence; a self-serving affidavit may be deemed insufficient to meet this burden when contradicted by a detailed and credible affidavit from former counsel.
Why It Matters
This opinion serves as a strong reminder of the high bar a petitioner must clear to win a post-conviction habeas claim based on ineffective assistance of counsel, particularly when years have passed. The case turned entirely on the trial court’s credibility determination between the petitioner and her former lawyer. It highlights the critical importance for criminal defense attorneys to maintain clear and documented communication with clients, especially regarding the immigration consequences of a plea (per *Padilla v. Kentucky*) and any potential conflicts of interest from joint representation.
The defense attorney’s detailed, specific affidavit, which methodically rebutted the petitioner’s claims with facts from the case (e.g., the video evidence and where the drugs were found), proved decisive. The ruling reinforces that a habeas court can, and often will, credit the sworn testimony of an officer of the court over a petitioner’s later-professed regrets, especially when the underlying evidence of guilt was strong. For practitioners, it underscores that a detailed record and credible memory can be the best defense against a future ineffectiveness claim.