Affirmed and Opinion filed November 19, 2013.




                                      In The

                    Fourteenth Court of Appeals
                              ___________________

                              NO. 14-12-01133-CR
                             ___________________

                     EX PARTE PABLO JOSE ROLDAN


                   On Appeal from the 208th District Court
                            Harris County, Texas
                      Trial Court Cause No. 1014795-A


                                  OPINION

      Appellant, Pablo Jose Roldan, appeals a judgment denying his
post-conviction application for writ of habeas corpus on the ground he received
ineffective assistance of counsel. We affirm.

                                 I. BACKGROUND

      In March 2005, appellant, a resident alien, pleaded guilty, pursuant to a plea
bargain, to felony possession with intent to deliver a controlled substance, namely
cocaine, in an amount more than four grams but less than 200 grams. The trial
court placed appellant on eight years’ deferred-adjudication community supervision
but discharged him after six years.          Appellant was detained by the police in
February 2012, after a traffic stop. While in custody, an “immigration hold” was
placed on appellant, and he was informed he may be referred for possible
deportation.

       Subsequently, appellant filed an application for writ of habeas corpus,
contending he received ineffective assistance of counsel relative to the previous plea
proceeding. Appellant asserted his guilty plea was involuntary because (1) plea
counsel failed to advise appellant his guilty plea would result in deportation,1 and
(2) appellant would not have accepted the plea bargain if he had known about the
adverse immigration consequences. After a hearing, the habeas court denied the
application.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       We review a trial court’s denial of habeas corpus relief under an
abuse-of-discretion standard and consider the facts in the light most favorable to the
habeas court’s ruling. Ex parte Reed, 402 S.W.3d 39, 41 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d). An applicant seeking post-conviction habeas corpus
relief bears the burden of establishing by a preponderance of the evidence that the
facts entitle him to relief. Id. at 41–42. We afford almost complete deference to
the habeas court’s determination of historical facts supported by the record,
especially when those factual findings rely on an evaluation of credibility and
demeanor. Id. at 42. We apply the same deference to review the habeas court’s
application of law to fact questions if the resolution of those determinations rests on



       1
         See 8 U.S.C. §§ 1101(a)(48)(A)(i), 1227(a)(2)(B)(i) (2006) (describing convictions for
possession of controlled substances for which alien is deportable).
                                              2
an evaluation of credibility and demeanor. Id. If the resolution of the ultimate
question turns on an application of legal standards, we review the issue de novo. Id.

      The two-pronged Strickland test applies when a habeas applicant challenges a
guilty plea based on ineffective assistance of counsel. Ex parte Murillo, 389
S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Hill v.
Lockhart, 474 U.S. 52, 58 (1985)). The applicant must show by a preponderance of
the evidence (1) plea counsel’s performance fell below the objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); see Murillo, 389
S.W.3d at 926.

      In Padilla v. Kentucky (decided March 31, 2010—five years after appellant’s
plea), the Supreme Court of the United States held that “counsel must inform her
client whether his plea carries a risk of deportation.” 559 U.S. 356, 374 (2010).
Counsel’s performance is deficient under the Strickland standard if counsel fails to
advise a noncitizen client about deportation consequences that are “truly clear.”
See Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (citing Padilla, 559 U.S. at 368–69). For a period of time after Padilla,
including the date on which the habeas court heard and denied appellant’s
application, several courts, including our court, applied Padilla retroactively. See
Aguilar v. State, 375 S.W.3d 518, 522–24 (Tex. App.—Houston [14th Dist.] 2012),
rev’d, 393 S.W.3d 787 (Tex. Crim. App. 2013). However, both the Supreme Court
of the United States and the Texas Court of Criminal Appeals subsequently held
Padilla does not apply retroactively to cases on collateral review. See Chaidez v.
United States, 568 U.S. ___, 133 S. Ct. 1103, 1113 (2013); Ex parte De Los Reyes,

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392 S.W.3d 675, 678–79 (Tex. Crim. App. 2013).                  Thus, “defendants whose
convictions became final prior to [March 31, 2010] . . . cannot benefit from
[Padilla’s] holding.” Chaidez, 133 S. Ct. at 1113; De Los Reyes, 392 S.W.3d at
679.

                                      III. ANALYSIS

       In two issues, appellant argues (1) Chaidez does not apply to appellant’s claim
because, since 1985, Texas Code of Criminal Procedure article 26.13(a)(4) has
required that counsel inform his client about the immigration consequences of a
guilty plea, and (2) De Los Reyes was “wrongly decided” because the Court of
Criminal Appeals failed to consider that statute. Article 26.13(a)(4) provides that,
prior to accepting a plea of guilty or nolo contendere, the trial court must admonish
the defendant, among other matters, “that if the defendant is not a citizen of the
United States of America, a plea of guilty or nolo contendere for the offense charged
may result in deportation . . . .” Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West
Supp. 2013). In summary, appellant suggests (1) article 26.13(a)(4) imposes a duty
on counsel, independent of the duty recognized in Padilla, to advise his client that a
guilty plea may result in deportation, and (2) this duty under article 26.13(a)(4)
existed at the time of appellant’s plea, irrespective of subsequent authority dictating
Padilla does not apply retroactively.2




       2
         It is clearly beyond our purview to decide the Court of Criminal Appeals “wrongly
decided” a case. We construe appellant’s contention as more an argument that De Los Reyes does
not preclude his ineffective-assistance claim because it held Padilla is not retroactive and
appellant urges there is a statutory duty independent of Padilla.
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       Assuming, without deciding, appellant preserved error on his contention, we
conclude it lacks merit.3 By its plain language, article 26.13(a)(4) imposes a duty
on only the trial court—not on defense counsel. See id. Nonetheless, appellant
suggests article 26.13(a)(4) effectively imposes a duty on counsel. In particular,
appellant argues that, via enactment of article 26.13(a)(4), immigration
consequences of guilty pleas became direct, rather than collateral, consequences and
attorneys are required to advise clients of direct consequences. However, appellant
fails to cite, and we have not found, any authority holding article 26.13(a)(4)
rendered immigration consequences direct consequences of a guilty plea or
otherwise imposes a duty on counsel. To the contrary, since the enactment of
article 26.13(a)(4), the Court of Criminal Appeals and our court have held that
immigration consequences of guilty pleas are collateral under pre-Padilla law. See,
e.g., State v. Jimenez, 987 S.W.2d 886, 888–89 (Tex. Crim. App. 1999); Ex parte
Sudhakar, 406 S.W.3d 699, 702 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d);
Ex Parte Luna, 401 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). Consequently, we reject appellant’s attempt to avoid the dictates of Chaidez
and De Los Reyes by urging article 26.13(a)(4) imposed a duty on counsel. Under

       3
          Appellant’s contention does not comport with his complaint in the habeas court. See
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that, to preserve error, an
appellant’s contention on appeal must comport with the specific objection made at trial). In the
habeas court, appellant complained counsel failed to fulfill the duties required under
Padilla—which, at the time of the hearing, our court and some other courts were applying
retroactively, as mentioned above. Appellant did not make an alternative argument that any duties
were imposed on counsel under article 26.13(a)(4). Regardless, we need not decide whether
appellant preserved error because we reject his complaint substantively. We also note the habeas
court found counsel advised appellant about the adverse immigration consequences of his plea, but
the court made no express conclusions on whether counsel had a duty to do so. As discussed
below, we will also alternatively uphold the habeas court’s ruling based on that finding.
Nevertheless, we may also uphold the ruling on the ground that counsel had no such duty. See Ex
Parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (recognizing appellate court may
uphold habeas court’s judgment as long as it is correct on any theory of law applicable to the case).
                                                 5
pre-Padilla law, the constitutional guarantee to effective assistance of counsel does
not extend to “collateral” aspects of the prosecution; thus, a pre-Padilla plea is not
involuntary even if counsel were deficient in advising his client regarding the
immigration consequences. Sudhakar, 406 S.W.3d at 702 (citing Jimenez, 987
S.W.2d at 888–89; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.
1997)); Luna, 401 S.W.3d at 334 (same).

      Alternatively, we may uphold the habeas court’s ruling because it found
counsel did inform appellant about the adverse immigration consequences of his
guilty plea, despite having no duty to do so, and that finding is supported by the
evidence.   Contrary to appellant’s contention, the evidence does not indicate
counsel advised appellant only that his guilty plea could result in deportation.

      At the habeas hearing, appellant and his mother (who participated in the
discussions with plea counsel) testified counsel did not inform them regarding the
immigration consequences of the plea and appellant would not have accepted the
plea bargain if he had known about such consequences. In contrast, counsel
testified as follows: he told appellant a conviction for the charged offense would
result in deportation; counsel has always discussed immigration consequences of
pleas with alien clients because he understands deportation is an important concern;
counsel was present when appellant’s mother telephoned an immigration attorney;
after counsel explained the proposed plea bargain to the immigration attorney, the
mother said that attorney advised appellant had “no choice” but to accept the plea
bargain; and the mother then chastised appellant for “mess[ing] around with drugs,
knowing immigration will deport you.”         Contrarily, appellant and his mother
testified they did not consult an immigration attorney.



                                          6
      In its written findings of fact and conclusions of law, the habeas court found,
inter alia, that (1) appellant and his mother were not credible, but counsel was
credible, (2) “[t]he credible testimony and the record, including [appellant’s]
affirmations in the plea bargain paperwork, establish that [counsel] properly and
thoroughly admonished [appellant] that his guilty plea would result in adverse
immigration consequences,” (3) “[appellant] failed to establish that [counsel] failed
to advise or incorrectly advised [appellant] of the immigration consequences that
would follow his plea of guilty,” and (4) “[appellant] failed to prove by a
preponderance of the evidence that the representation by [counsel] was deficient or
fell below an objective standard of reasonableness, given the prevailing professional
norms at the time of [appellant’s] plea.” We defer to the trial court’s findings
because they turned on evaluation of witness credibility and are supported by
counsel’s testimony. See Reed, 402 S.W.3d at 42.

      Accordingly, the trial court did not abuse its discretion by denying appellant’s
habeas-corpus application because he failed to prove the first Strickland prong. We
overrule both of appellant’s issues and affirm the habeas court’s judgment.




                                       /s/       John Donovan
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Brown.
Publish — Tex. R. App. P. 47.2(b).




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