                              Fourth Court of Appeals
                                     San Antonio, Texas
                   MEMORANDUM OPINION ON REMAND FROM
                      THE COURT OF CRIMINAL APPEALS
                                        No. 04-11-00175-CR

                                    Ex Parte Gregorio ROMERO

                    From the 216th Judicial District Court, Kendall County, Texas
                                      Trial Court No. 3427-B
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 20, 2013

AFFIRMED

           On June 9, 1998, Gregorio Romero pled nolo contendere to aggravated assault of a child

and was placed on deferred adjudication community supervision for ten years. Following his

conviction, Romero, who is not a United States citizen, was deported. On March 8, 2010, Romero

filed an application for writ of habeas corpus asserting, among other things, that trial counsel was

ineffective in failing to advise him of the immigration consequences of his plea. Romero further

asserted that had his trial counsel advised him that his conviction would result in his deportation,

he would not have pled nolo contendere to aggravated sexual assault of a child and he would have

insisted on going to trial. The trial court denied habeas corpus relief, and Romero appealed to this

court.
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        We originally reversed the trial court’s judgment, holding Romero met his burden of

proving ineffective assistance of counsel in accordance with Padilla v. Kentucky, 130 S.Ct. 1473,

1486 (2010). 1 The Court of Criminal Appeals subsequently vacated our judgment and remanded

the case for us to consider whether the trial court properly denied habeas relief in light of its opinion

in Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013). We affirm.

                                 INEFFECTIVE ASSISTANCE OF COUNSEL

        In Padilla, the United States Supreme Court held that “counsel must inform her client

whether his plea carries a risk of deportation.” 130 S.Ct. at 1486. The Court further held that the

nature of the advice to be given depends on the applicable immigration law. See id. at 1483. When

the immigration consequence is “truly clear,” counsel has a duty to give correct advice about this

consequence, and the failure to do so satisfies the first part of an ineffective assistance of counsel

claim. Id. When establishing this type of ineffective assistance of counsel claim—a claim related

to counsel’s performance during the plea process—a habeas applicant must also establish that but

for counsel’s deficient performance he would not have pled to the offense, but would have instead

insisted on going to trial. See Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App.

2012); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).

        In Chaidez v. United States, the United States Supreme Court determined that it

“announced a new rule in Padilla” and therefore “defendants whose convictions became final prior

to Padilla . . . cannot benefit from its holding.” 133 S.Ct. 1103, 1113 (2013). In other words,

Padilla does not apply retroactively. See id. Thereafter, in De Los Reyes, the Texas Court of

Criminal Appeals declined to accord retroactive effect to Padilla as a matter of state habeas law.



1
 We also addressed and overruled Romero’s two other issues pertaining to the trial court’s denial of habeas corpus
relief.


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392 S.W.3d at 679. “We adhere to the retroactivity analysis in Chaidez and its holding that Padilla

does not apply retroactively.” Id.

       In our original opinion, decided before Chaidez and De Los Reyes, we applied Padilla and

determined that the immigration consequences of Romero’s plea to the offense of aggravated

assault of a child were “truly clear,” and therefore, trial counsel had a duty to advise Romero of

these consequences. We further determined that Romero met his burden of demonstrating that but

for counsel’s failure to advise him of the immigration consequences of his plea, he would not have

entered a plea, but would have gone to trial. However, Padilla was decided on March 31, 2010,

more than eleven years after Romero’s conviction became final. Because the United States

Supreme Court and the Texas Court of Criminal Appeals have held that Padilla does not apply

retroactively to cases that are already final on direct review, we hold that Romero may not rely on

Padilla to establish ineffective assistance of counsel. See Chaidez, 133 S.Ct. at 1113; De Los

Reyes, 392 S.W.3d at 679.

       On remand, Romero has filed a supplemental brief in which he argues Chaidez and De Los

Reyes are not controlling here because trial counsel not only failed to inform him of the

immigration consequences of his plea, but also affirmatively misadvised him. But Romero’s

argument that trial counsel affirmatively misadvised him was not presented in his habeas corpus

application filed in the trial court. Because this argument was not presented to the trial court, it

was not properly preserved and it presents nothing for our review. See TEX. R. APP. P. 33.1 (a) (1)

(providing that as a prerequisite to presenting a complaint for appellate review, the record must

show that the complaint was made to the trial court).

       Finally, in his original briefing, Romero argued trial counsel was ineffective in failing to

conduct a diligent investigation of the facts surrounding the case. We did not reach this issue in

our original opinion, and therefore, we address it here. Generally, to establish ineffective assistance
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of counsel, a habeas applicant must show by a preponderance of the evidence that his counsel’s

representation fell below the standard of prevailing professional norms and that there is a

reasonable probability that, but for counsel’s deficiency, the result of the trial would have been

different. Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9

S.W.3d at 814. Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim. Id.

       Here, the habeas record contains an affidavit from trial counsel in which he detailed his

actions in investigating the facts surrounding this case. In this affidavit, trial counsel states he

interviewed each and every fact witness, some of them multiple times. Trial counsel further states

he was prepared to go to trial long before the trial date. Based on the evidence before it, the trial

court could have concluded that trial counsel conducted a diligent investigation of the facts

surrounding this case. Further, the trial court could have concluded that Romero failed to satisfy

his burden of establishing that trial counsel was ineffective in failing to conduct a diligent

investigation.

       We hold the trial court did not err in overruling Romero’s ineffective assistance of counsel

claim. We overrule Romero’s appellate issue asserting he was provided ineffective assistance of

counsel.

                                               CONCLUSION

       Having overruled all of the issues presented in this appeal, we affirm the trial court’s

judgment.

                                                              Karen Angelini, Justice

Do not publish
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