 AFFIRMEI); and Opinion Filed May 29, 2013.




                                               In The
                                        Qtutrt of     imlr
                               .Fi(lli Oh3trirt of      it tkilbi

                                      No. 05-13-00177-CR

                            EX PARTE ABRAHAM WELDEZION

                      On Appeal from the Criminal i)istrict Court No. 2
                                   I)allas County, Texas
                           Trial Court Cause No. WXO9-90026-1

                                MEMORANDUM OPINION
                          Belore Justices O’Neill. Francis, and Fillmore
                                   Opinion by Justice O’Neill
       Abraham Weldezion appeals the trial court’s order denying his application for writ of

habeas corpus. In two issues, appellant contends his plea was involuntary because he received

ineffective assistance of counsel and he was   not   mentally competent to enter it. We affirm.

                                         BACKGROUND

       Appellant was convicted in a 2001 bench trial of aggravated assault with a deadly

weapon and sentenced to two years’ imprisonment. On the day after trial, the trial      court   offered
to grant appellant’s motion for new trial if he would plead guilty and in exchange be placed on

five years’ deferred adjudication community supervision, pay a fine, and serve 180 days in jail as

a probation condition. Appellant accepted the offer and entered a guilty plea. Appellant did not

appeal. He was discharged successfully from community supervision in 2006.

       In 2008, appellant filed an application for writ of habeas corpus contending his guilty

plea was involuntary because he lacked sufficient command of the English language to
 understand the proceedings and the written admonishments, he was not provided with a

 translator, the trial court did not explain the immigration consequences of his plea or his right to

 a fury trial, and the inal court did not inquire into his mental competency even though he was

exhibiting symptoms of mental illness that would eventually result in his hospitalization. On

 November 21, 2008, the trial court entered an order and findings of fact denying appellant’s writ

application. Appellant did not appeal the order.

         In 2009, appellant filed a second writ application reurging his comprehension and

competency complaints and adding contentions that he did not receive adequate advice about his

immigration status and there was “newly discovered evidence that the trial court told him there

would he no immigration consequences resulting from his plea. While the second application

was pending, the United States Supreme Court issued an opinion holding when federal law

clearly specifies that a client will be deported. counsel must affirmatively and colTectly advise

the client about the immigration consequences of a plea. See Padilla v. Kentucky, 130 S. Ct.

1473, 1483 (2010).

         In 2012. appellant filed an amended second application for writ of habeas corpus

contending he received ineffective assistance of counsel becarLse counsel (lid not spend enough

time preparing for the case and did not explain the immigration consequences of the plea to him.

Appellant cited Paditla as the “controlling case” for adjudicating his application and asked the

trial court to apply the holding of Padilia retroactively for his benefit. The State responded that

all of appellant’s claims except his Padilla claim for ineffective assistance of counsel were

adjudicated in the 2008 writ proceeding.




    There is no explanation in the record for the long period of inaction on appellant’s second writ application.
         The trial court conducted an evidentiary hearing on appellant’s application. During the

 hearing, appellant and other defense witnesses testified generally that at the lime of the plea

 hearing, appellant was a recent immigrant to the United Stales with a limited comprehension of

 English and he was   exhibiting     symptoms of mental illness. Appellant denied receiving advice or

 an explanation from trial counsel about the immigration consequences of his plea, alleged the

 trial judge offered to   protect   him from   immigration.   accused the trial court judge ol corruption.

and denied that the reporter’s record of his plea hearing provided by the State was genuine.

Appellant admitted, however, that he had been found guilty at trial and the trial court had said
                                                                                                 he
would serve two years in prison. Appellant testified that on the (lay after trial, the trial court had

forced him into entering an involttntary guilty plea. Appellant admitted signing plea documents

but alleged he (lid not understand what the papers said, the trial court was laughing at him, and

his trial counsel refused to help him.

        In an order entered on December 20. 2012. the trial court denied appellant’s second writ

application and entered findings of fact expressly finding appellant’s testimony was not credible

and rejecting his contentions. On January 18, 2013. appellant filed a notice of appeal to appeal

the trial court’s December 20, 2012 order. On February 4, 2013, appellant filed an amended

notice of appeal “from the judgment of the denial of a writ of habeas corpus for
                                                                                 jappellanti, first
filed on November 21, 2008.” Appellant asked that the amended notice of appeal he considered

timely filed because he “did not receive notice of [the trial court’sj final order denying relief,

dated December 20, 2012, until January 15, 2013.”

                                         STANDARD OF REVIEW

       An applicant for habeas corpus relief must prove the claim by a preponderance of the

evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In reviewing the trial



                                                    -3-
court’s order denying habeas corpus relief, we view the facts in the light most favorable to the

trial courts nilmg.    Lx   /klrh   I’cterstni, 117 S.W.3d 804. 819 (Tex. Crim. App. 2003) (per

curlain), overruled   on   other grounds by Lx porte Lewis, 219 S.W.3d 335 (Tex, Crini. App.

2007). We will uphold the trial courts ruling absent an abuse of discretion. See id.

                                      JURISnICTIONAL MATTERS

        l3ehre turning to the irierits of appellanfs case, the State contends this appeal should be

dismissed on the ground appellant failed to obtain a certification of the right to appeal from the

trial court .See TEX. R. APP. P. 25.2(d).      We note that appellant did obtain the trial courts

certification which appears on the notice of appeal and certifies appellant has the right of appeal.

        We next consider the effect of appellant’s two notices of appeals. Appellant’s first notice

of appeal, although filed under the cause number for his first writ application, was timely tiled to

appeal the trial court’s December 20, 2012 order. Appellant’s February 4, 2013 amended notice

of appeal, however, was not timely filed to appeal the trial court’s November 21, 2008 order

denying appellant’s first application. See TEX. R. APP. P. 26.2(a) (establishing time deadlines for

appeal of appealable orders and judgments). Accordingly, to the extent appellant seeks to appeal

the trial court’s November 21, 2008 order, we lack jurisdiction over that portion of the appeal.

                                             ANALYSIS

       In his second issue, appellant contends his plea was involuntary because he was mentally

incompetent at the time he entered it. Appellant is appealing the denial of a second application

for writ of habeas corpus. The code of criminal procedure limits the scope of issues that may be

raised in a subsequent application for writ of habeas corpus.

       [A] court may not consider the merits of or grant relief based on the subsequent
       application unless the application contains sufficient specific facts establishing
       that the current claims and issues have not been and could not have been
       presented previously in an original application or in a previously considered


                                                 -4-
        application filed under this article because the factual or legal basis for the claim
        was unavailable on the date the applicant filed the previous application.

TEx. CODE CRIM, PROC. ANN,         art. 11 072, §9(a) (West 2005).      A legal basis for a claim is

unavailable within the meaning of the statute if the basis “was not recognized by and could not

have been reasonably formulated from a final decision of the United States Supreme Court, a

court of appeals of the United States, or a court of appellate jurisdiction of this state on or before

Ithe date of the first applicationi.”   Id. at §9(b). The factual basis for a claim is unavailable at

the time the first application was filed “if the factual basis was not ascertainable through the

exercise of reasonable diligence on or before Ithe date of the first application I,” Id. at §9(c).

       As the State pointed out in its response in the trial court, appellant’s complaint about his

alleged mental incompetency was already adjudicated in connection with his first writ

application.   Appellant does not allege or show that the basis for his claim was legally or

factually unavailable at the time of his 2008 writ proceeding. To the contrary, appellant and his

witnesses testified in the evidentiary hearing that his mental incompetency was apparent at the

time of the plea hearing. Accordingly, appellant raises no matters for this Court to address on

the merits. See id. at §9(a—c). We overrule appellant’s second issue.

        In his first issue, appellant contends his plea was involuntary because he did not receive

effective assistance of counsel. Appellant contends trial counsel failed to request an interpreter

for him or have the trial court’s written admonishments translated into appellant’s native

language. Appellant points to counsel’s affidavit, submitted in connection with the 2008 writ

application, averring appellant spoke “broken English” and counsel was unsure whether

appellant had much understanding of written English.

       Appellant also complains about trial counsel’s advice regarding the immigration

consequences of his plea.     As appellant notes in his brief, however, while this case was on


                                                  -5-
appeaL the tJnited States Supreme Court clarified that Padilla announced a new rule of

Consi ilutionul interpretation and, therefore, would apply only prospectively to new eases decided

since its issuance. See Chaidez v. United States. 133 S,Ct. 1103. 1108 (2013), Recently, the

Texas Court of Criminal Appeals has affirmed that delendants hieing (leportation and claiming

ineffective assistance of counsel      in connection     with their counsels immigration law advice

would not he given broader protections than the Sixth Amendment provides as set forth in

P(IthII(1 .5cc Lv pane De Los Reves. 392 S.W3d 675, 679 (Tex. Crim. App. 201 3). Appellant’s

brief concedes his Padilia claim, the basis of his amended second application, is no longer viable

hut contends the reasoning of Padilla should apply because counsel’s poor        performance   left him

without a sufficient understanding of    the immigration consequences of his plea.

          Except for appellant’s contentions related to the application of Padilla, the legal and

factual    basis   for   appellant’s   complaint   about    counsel’s   performance.   including     any

dissatisfaction appellant may have had about the immigration advice he received from counsel,

was readily apparent at the time he filed his 2008 original writ application. Appellant and the

other defense witnesses testified at the evidentiary hearing that appellant spoke poor English in

2001. Appellant’s first writ application addressed his language difficulties and alleged he “was

not advised of the potential consequences of his guilty plea on his immigration status.” While

this case was on appeal, both the United States Supreme Court in C’haidez and the Texas Court of

Criminal Appeals in Dc Los Reves have concluded that persons like appellant whose convictions

were final at the time Padilla was issued in 2010 may not rely on Padilla as grounds for

reversing their convictions. Dc Los Reyes, 392 S.W.3d at 679. Thus, appellant brings no matters

before us upon which we may grant relief. TEX. CODE CRIM. PROC. ANN. art. 11.072,         §9(a—c).




                                                   -6-
           liven if we assume appellant’s ineffective assistance claim has some continuing legal

basis without Padilla that was not foreclosed by the first writ application proceeding, he cannot

prevail.      To show he received ineffective assistance of counsel, appellant must show (1)

counsel’s performance tell below an objective standard of reasonableness; and (2) a reasonable

probability exists that, hut for counsel’s errors, the result would have been different.              See

Strtcklaiid   v. Washinç’ton, 466 U.S. 668, 68788, 694 (1984). When the defendant’s ineffective

assistance claim arises in the context of a guilty plea. the defendant must show counsel’s advice

about the plea did not fall within the wide range of competence demanded of attorneys in

criminal cases and that,       but   for trial counsels errors, there is a reasonable probability the

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

/Vloadv. 991 S.W2d 856, 857—58 (Tex. Crim. App. 1999). The failure to prove one prong of the

Strickland standard negates the need to consider the other prong .See Strickland, 466 U.S. at

697; Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).

           En its findings of fact, the trial court concluded appellant had failed to satisfy either prong

of the Strickland standard, We need consider only those findings pertaining to the second prong.

The trial court found appellant’s claim that he would have rejected the plea bargain if he had

been informed of the immigration consequences was not credible and a decision to reject it

would not have been rational under the circumstances.             The trial court found appellant had

already been convicted and sentenced to two years imprisonment. The trial court found the

immigration consequences would have been the same under the plea offer or under the existing

conviction. See 8 U.S.C. §1 101(a)(48)(A) (2005) (defining an order of deferred adjudication as a

conviction for purposes of application of federal deportation law).              The trial court found

appellant was unable to show any prejudice from not being advised of the immigration



                                                    -7-
consequences. The record supports the trial court’s findings. Refusing to accept the plea deal

the trial cowl oltered would have resulted in a two—year prison term with no offsetting henelits to

appellant. Thus, appellant cannot show he suffered adverse consequences.

        Because appellant cannot henefit 1mm the application of l’athl/u. all of his other

complaints either were or should have been raised in his original writ application in 2008, and he

suffered no harm, we conclude the trial court did not abuse its discretion in denying appellant’s

second application br writ of habeas corpus. See Peterson, 117 S.W.3d at 819. We overrule

appellant’s issues.

        We affirm the trial court’s order denying appellant’s second application for writ of

habeas corpus.




                                                     /Michael J. O’Neill!
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE

Do Not Publish
TEX, R. APP. P.47

1 30177F.U05




                                               -8-
                                  Q.tntrt Lii TpLd[
                          fiftt! Ditrirt of Iixa at Jat1a
                                          JUDGMENT

EX PARTE ABRAHAM WELDEZION                               On Appeal from the Criminal District Court
                                                         No. 2, Dallas County, Texas
No. 05— 1 3—00 I 77—CR                                   Trial Court Cause No. WXO9-90026—1.
                                                         Opinion delivered by Justice O’Neill.
                                                         Justices Francis and Fillmore participating.

       Based on the Court’s opinion of this date, the order of the trial court denying relief on
appellant’s application br writ of habeas corpus is AFFiRMED.


                         th
                         29
Judgment entered this         day of May, 2013.




                                                        /Michael J. O’Neill!
                                                        MICHAEL J. O’NEILL
                                                        JUSTICE




                                                  -9-
