Opinion issued February 10, 2015.




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-14-00644-CR
                            ———————————
             EX PARTE JUAN ALBERTO HUERTA, Appellant



                    On Appeal from the 337th District Court
                             Harris County, Texas
                       Trial Court Case No. 1084062-A



                        MEMORANDUM OPINION

      Juan Alberto Huerta appeals from the trial court’s order denying him habeas

corpus relief pursuant to Article 11.072 of the Texas Code of Criminal Procedure.1

Huerta contends that his trial counsel was ineffective when, in 2006, he allegedly

1
      See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for
      appeal in felony or misdemeanor case in which applicant seeks relief from order or
      judgment of conviction ordering community supervision).
failed to advise Huerta of the immigration consequences associated with his guilty

plea. We affirm the trial court’s judgment.

                                   Background

      In 2006, Huerta, pursuant to a plea agreement, pleaded guilty to the state jail

felony offense of possession of a controlled substance, cocaine weighing less than

one gram.2 The trial court deferred a finding of guilt and placed Huerta on

community supervision for a period of three years. In January 2009, the trial court

found that Huerta had fulfilled the conditions of his community supervision and

discharged him.

      On November 7, 2012, Huerta filed his verified application for a writ of

habeas corpus. Relying on Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473

(2010), Huerta contended that his guilty plea was involuntary because his trial

counsel was ineffective because he did not inform, or misinformed, Huerta of the

immigration consequences of his plea. According to Huerta:

      - Before pleading guilty, I presented my BI/B2 Visa to my criminal
      defense lawyer but he did not advise me of any immigration
      consequences.
      - Before I pled guilty to felony Possession of Cocaine, my criminal
      defense lawyer did not tell me to seek advice from an immigration
      lawyer before pleading guilty to a felony drug charge.
      - My criminal defense lawyer did not explain and/or advise me of any
      immigration consequences of accepting the plea offer.


2
      See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010).

                                         2
      - I relied on the questioning and advice of my criminal defense
      lawyer.
      - I was not advised by my criminal defense attorney that accepting
      the plea offer would result in my deportation from the United States.
      - I was not advised by my criminal defense lawyer that this felony
      plea would result in a felony conviction for Immigration purposes.
      - I would not have pled guilty had I known I would not be able to
      become a United States citizen as a result of this plea.
      - I would not have pled guilty had I known I would be deported as a
      result of this guilty plea.
      - I would have chosen to fight in trial if necessary, had I known the
      immigration consequences of this plea.3

As ordered by the trial court, Huerta’s trial counsel filed his affidavit regarding his

representation of Huerta.

      On June 11, 2014, after the United States Supreme Court decided Chaidez v.

United States, 133 S. Ct. 1103 (2013), Huerta filed his response to the State’s

answer and memorandum in support of his application. He acknowledged that

“Padilla is a ‘new rule’ that does not apply retroactively in those cases that were

final before Padilla.” He contended, however, that certain pre-Padilla claims for

post-conviction relief, including “the right of an immigrant to establish ineffective

assistance of counsel for affirmative mis-advice” remained. Huerta asserted that

trial counsel was ineffective because he did not accurately advise, or misadvised,



3
      Huerta’s affidavit in support of his application stated that, at the time he entered
      his plea, he “had not been informed, or had been misinformed, by [his] attorney in
      accordance with the stated facts above.”
                                           3
Huerta about the consequences of his guilty plea or fulfill “the duty to investigate a

client[’s] consequences of a guilty plea.”

      In August 2014, the trial court held a hearing on Huerta’s application.

Huerta was present at the hearing but did not testify. Exhibits admitted, with no

objection, included Huerta’s application affidavit and exhibits, which included a

copy of his then current B1/B2 visa and Texas driver’s license; and the “plea

packet,” which included a copy of the “Court’s Admonishments to Defendant” that

Huerta initialed and signed. The admonishments state, “CITZENSHIP: If you [are]

not a United States Citizen, a plea of guilty or nolo contendere may result in your

deportation, exclusion from admission to the United States or denial of

naturalization under federal law.” The admonishments further state, “These papers

were explained to me in my preferred language, Spanish, by an interpreter, namely

Veronica Huerta.” The statement “I am a citizen of the United States” was marked

through and “Legal Resident” handwritten on the page. The admonishments

conclude, “Joined by my counsel, I state that I understand the foregoing

admonishments and I am aware of the consequences of my plea. I am mentally

competent to stand trial and my plea is freely and voluntarily made.” The plea

packet also includes a “Waiver of Constitutional Rights, Agreement to Stipulate,

and Judicial Confession,” signed by the trial judge and indicating that he




                                             4
“admonished [Huerta] of the consequences of his plea[.]” The trial court

documents reflect that Huerta waived a record of his plea proceedings.

      The trial court also admitted, with no objection, a copy of trial counsel’s

affidavit. Counsel stated that he no longer had Huerta’s defense file but had

reviewed the State’s file and his practice was to ask a defendant if he were a

citizen. “If a client indicates that they are not a U.S. citizen then I inform them of

the potential consequences that they may be removed from the country by federal

immigration officials” and “[i]f the defendant had requested to speak to an attorney

I would have asked to have the case reset to give the defendant an opportunity to

do so.” Counsel further stated that his customary practice is to explain all

admonishments and plea papers to a defendant and allow a plea “only after they

indicate that they understand the admonishments and the terms of the plea offer

. . . .” Counsel stated that this practice was corroborated by Huerta’s initials on the

admonishments and his signature on the plea papers.

      At the hearing, Huerta’s counsel argued that trial counsel misadvised Huerta

because his case “would be dismissed under state law” but not under federal

immigration law and a drug conviction was “mandatory detention under

immigration law.” Counsel stated that Huerta had been prejudiced by being unable

“to go forward with any kind of immigration application . . . .” The State

responded that Padilla was not retroactive and did not apply, and Huerta had not

                                          5
met his burden to show that counsel’s representation fell below an objective

standard of reasonableness and was deficient. At the end of the hearing, the trial

court made the following findings of fact:

      [T]he plea was entered into on . . . October 18th, 2006. The deferred
      adjudication was served out and that deferred adjudication was
      dismissed in 2009 as per the records that are part of the record in this
      case, the exhibits. That is a pre-Padilla . . . . I do find that [trial
      counsel] did appear from all the evidence presented in the case
      appeared to inquire into the immigration status of the defendant in the
      case. And that the records of the plea bargain indicate that Mr. Huerta,
      the petitioner and the defendant at that time, indicated that he was a
      legal resident. Did cross out that he was not a citizen of the United
      States. That the plea was not involuntary due to ineffective assistance
      of counsel and that counsel did not fall below a reasonable
      expectation of performance or that his conduct was not defective.

The trial court denied Huerta’s requested habeas relief.

                        Ineffective Assistance of Counsel

A.    Standard of review

      We review a trial court’s denial of habeas corpus relief for an abuse of

discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex

parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary,

333 S.W.3d 782, 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In

conducting our review, we view the facts in the light most favorable to the trial

court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We

review questions of law de novo. Ex parte Necessary, 333 S.W.3d at 787. Huerta

had the burden to prove his claim for habeas relief by a preponderance of the
                                         6
evidence. See Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003);

State v. Webb, 244 S.W.3d 543, 547 (Tex. App.—Houston [1st Dist.] 2007, no

pet.).

         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 a criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91

S. Ct. 160, 164 (1970). The Strickland two-pronged test for ineffective assistance

of counsel applies in the plea context. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct.

366, 370 (1985); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984)); see also Ex parte Roldan, 418 S.W.3d 143, 145 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (citing Ex parte Murillo, 389 S.W.3d 922, 926

(Tex. App.—Houston [14th Dist.] 2013, no pet.)). To establish ineffective

assistance of counsel, the applicant must prove by a preponderance of the evidence

that (1) his trial counsel’s representation was deficient in that it fell below the

standard of prevailing professional norms and (2) there is a reasonable probability

that but for counsel’s deficiency, the result of the proceeding would have been

different. See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068;

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Failure to show

either deficient performance or sufficient prejudice defeats the claim of

ineffectiveness. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

                                          7
B.    No basis exists to establish that the trial court abused its discretion

      Huerta contends that his trial counsel’s representation was deficient because

he did not adequately investigate, and misadvised Huerta about, the immigration

consequences of the guilty plea. In his brief filed in this Court, Huerta more

specifically contends that “the totality of the circumstances show that [he] was

clearly misled on a material issue” and “was affirmatively and incorrectly advised

about the immigration consequences of his plea to a drug charge.” He asserts that

these circumstances included a lack of “oral Court admonishments regarding

immigration    consequences,”      no   “proper    translations   of    the   written

admonishments,” and an incorrect conclusion that he was a legal resident. He

states that he “was under the belief that a guilty plea and dismissal under a deferred

adjudication would have no immigration consequences.”

      In Padilla, the Supreme Court held that the Sixth Amendment requires a

criminal defendant’s attorney to provide advice about the risk of deportation

arising from a guilty plea. 559 U.S. at 366, 130 S. Ct. at 1482. When the

deportation consequences are “truly clear,” counsel’s performance is deficient

under the Strickland standard if counsel fails to advise a defendant that he would

be deported. Padilla, 559 U.S. at 369, 130 S. Ct. at 1483. When the consequences

are “not succinct and straightforward,” counsel “need do no more than advise a

noncitizen client that pending criminal charges may carry a risk of adverse

                                          8
immigration consequences.” Id. However, the United States Supreme Court

subsequently held that Padilla does not apply retroactively to a conviction that was

final before Padilla was decided. Chaidez, 133 S. Ct. at 1113; see Ex parte De Los

Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013) (adhering to Chaidez’s

holding that Padilla does not apply retroactively). Thus, a defendant whose

conviction became final before Padilla cannot benefit from its holding. See

Chaidez, 133 S. Ct. at 1113; Ex parte De Los Reyes, 392 S.W.3d at 679.

      Here, Huerta’s conviction was final in 2006, before Padilla was decided.4

Although he acknowledged that Padilla does not apply retroactively in the trial

court, Huerta contended that the law allows post-conviction writs “where there was

‘affirmative mis-advice’ regarding immigration consequences.” He contends that

Chaidez “reaffirmed Padilla’s core holding that for at least the past fifteen years,

professional norms have required defense counsel to advise of immigration

consequences” and he was “entitled to correct advice regarding deportation

consequences of the guilty plea ‘when the deportation consequence is truly clear.’”

According     to    Huerta,     the    consequences—his        “removability”      and

“inadmissibility”—were certain, and, thus, any statement that he “‘may’ be

deported” was not accurate. Huerta asserted additionally that pre-Padilla cases did

4
      A guilty plea and term of deferred adjudication community supervision constitutes
      a conviction for federal immigration law purposes. See State v. Guerrero, 400
      S.W.3d 576, 588 (Tex. Crim. App. 2013) (citing 8 U.S.C. § 1101(a)(48) and
      Moosa v. INS, 171 F.3d 994, 1005–06 (5th Cir.1999)).
                                          9
not absolve defense attorneys “who represent non-citizens of their duty to

investigate immigration consequences.”

      Because Huerta’s conviction was final before Padilla was decided, Huerta

cannot benefit from Padilla and pre-Padilla law applies. Under pre-Padilla law,

“while the Sixth Amendment assures an accused of effective assistance of counsel

in criminal prosecutions, [it] does not extend to ‘collateral’ aspects of the

prosecution.” Ex parte Luna, 401 S.W.3d 329, 334 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim.

App. 1997)). Immigration consequences of a guilty plea were considered collateral

and did not support an ineffective assistance of counsel claim. See State v. Jimenez,

987 S.W.2d 886, 887–88 (Tex. Crim. App. 1999) (“That a guilty plea may result in

deportation is generally considered a collateral consequence.”); Ex parte Luna, 401

S.W.3d at 334 (“Immigration consequences of a guilty plea are considered

collateral . . . .”). Accordingly, “a pre-Padilla plea is not involuntary even if

counsel were deficient in advising his client regarding the immigration

consequences.” Ex parte Roldan, 418 S.W.3d at 146 (citing Ex parte Sudhakar,

406 S.W.3d 699, 702 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)). We,

therefore, conclude that the trial court did not abuse its discretion in denying

Huerta’s application for a writ of habeas corpus.




                                         10
                                   Conclusion

      Accordingly, we affirm the trial court’s judgment.



                                             Russell Lloyd
                                             Justice

Panel consists of Justices Jennings, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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