Opinion issued July 29, 2014




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00146-CR
                           ———————————
                      EX PARTE AURELIO COLIN VERA



                   On Appeal from the 412th District Court
                          Brazoria County, Texas
                       Trial Court Case No. 50798-1




                         MEMORANDUM OPINION

      Aurelio Colin Vera appeals from the trial court’s order denying his petition

for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal
Procedure.1      Vera contends that his trial counsel, Zachary Maloney, rendered

ineffective assistance of counsel in the year 2006 when he was purportedly

affirmatively misadvised of the immigration consequences of his plea of no

contest. We hold that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply

retroactively to this case, and we affirm the trial court’s judgment.

                                    Background

      On April 20, 2006, Vera pleaded guilty to a felony offense of possession of a

controlled substance, namely cocaine, and received 2 years deferred adjudication,

court costs of $273.00 and a fine of $500.00.

      Six years later, on December 20, 2013, Vera filed his application for writ of

habeas corpus. Vera contended that his guilty plea was involuntary, asserting that

Padilla applied retroactively and that his trial counsel was ineffective under

Strickland v. Washington, 466 U.S. 668 (1984), because he did not correctly advise

Vera of the immigration consequences of his plea. Earlier in 2013, the United

States Supreme Court issued its opinion in Chaidez v. United States, 133 S. Ct.

1103 (2013) and the Court of Criminal Appeals issued Ex Parte De Los Reyes, 392

S.W.3d 675 (Tex. Crim. App. 2013), both holding Padilla does not apply

retroactively.


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).
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                                        Analysis

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. Vera

had the burden to prove his claims for habeas relief by a preponderance of the

evidence. See State v. Webb, 244 S.W.3d 543, 547 (Tex. App.—Houston [1st Dist.]

2007, no pet.).

B.    Under controlling law, no basis exists to establish that the trial court
      abused its discretion

      Vera contends that his trial counsel’s representation was constitutionally

deficient because he did not specifically advise Vera that he would be subject to

deportation. Acknowledging that Padilla does not apply retroactively, Vera urges

us to make an independent determination that defendants like Vera deserve the

same protections as Mr. Padilla and conclude that his plea was involuntary.

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

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

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arising from a guilty plea. 559 U.S. 356, 130 S. Ct. at 1486. The Court held that

“longstanding Sixth Amendment precedents, the seriousness of deportation as a

consequence of a criminal plea, and the concomitant impact of deportation on

families living lawfully in this country” demanded that counsel “inform [his] client

whether his plea carries a risk of deportation.” Id. at 1486. When the deportation

consequence is “truly clear,” counsel’s duty is to warn a defendant that he would

be deported. Id. 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 immigration consequences.”

Id.

      Nearly three years later, the Supreme Court addressed the issue of Padilla’s

retroactive application and had to decide whether Padilla announced a “new rule”

because “[o]nly when [the Supreme Court] appl[ies] a settled ruled may a person

avail herself of the decision on collateral review.” Chaidez, 133 S. Ct. at 1107. The

Court rejected the argument that Padilla applied the settled law of ineffective

assistance of counsel. Id. at 1108–09 (referencing well known standard in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)). The Court held

that Padilla announced a new rule of constitutional criminal procedure and, thus,

did not apply retroactively to cases already final. Chaidez, 133 S. Ct. at 1113; see

Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989) (“Unless they fall

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within an exception to the general rule, new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the

new rules are announced.”).

      Shortly after Chaidez, the Court of Criminal Appeals adopted Chaidez’s

reasoning: “We adhere to the retroactivity analysis in Chaidez and its holding that

Padilla does not apply retroactively.” Ex parte De Los Reyes, 392 S.W.3d at 679.

The Court recognized that it “could accord retroactive effect to Padilla as a matter

of state habeas law” but “decline[d] to do so.” Id. The Court held that the

applicant, whose conviction was final before Padilla, could not rely on it to argue

that he was denied ineffective assistance of counsel. Id.

      As an intermediate court of appeals, we are bound to follow De Los Reyes.

See Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d) (citing Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref’d)); see TEX. CONST. art. V, § 5(a). And, this Court has held

that, because Padilla announced a “new rule,” it does not apply retroactively. See

Ibarra v. State, No. 01-12-00292-CR, 2013 WL 1163967, at *2 (Tex. App.—

Houston [1st Dist.] Mar. 21, 2013, no pet.) (concluding that appellant who was

convicted twelve years before Padilla could not rely on it on collateral review and

affirming denial of habeas relief). Because Vera’s conviction became final before




                                          5
Padilla was decided, he may not avail himself of the decision on collateral review.

Id.

      Under applicable 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 Morrow, 952 S.W.2d

530, 536 (Tex. Crim. App. 1997). Immigration consequences of a guilty plea were

considered a collateral matter and did not support an ineffective assistance of

counsel claim. See State v. Jimenez, 987 S.W.2d 886, 888–89 (Tex. Crim. App.

1999) (“That a guilty plea may result in deportation is generally considered a

collateral consequence.”); see Ex parte Luna, 401 S.W.3d 329, 334 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (“Immigration consequences of a guilty plea

are considered collateral; therefore, [applicant’s] plea would not be rendered

involuntary under the United States or Texas Constitutions even if his attorney was

deficient in informing him of the consequences.”).

      Vera was convicted in 2006, four years before Padilla was decided. Because

Padilla announced a “new rule,” it is not retroactive and Vera may not rely on the

decision to argue that his counsel was ineffective. Before Padilla, immigration

consequences of a guilty plea were considered a collateral matter that did not

support an ineffective assistance of counsel claim. Vera does not argue that his that

his counsel was ineffective on any basis other than a failure to advise Vera

                                         6
properly on the immigration consequences of his plea. He presents no basis for an

independent determination that the trial court abused its discretion in denying his

petition for writ of habeas corpus. We conclude that the trial court did not abuse its

discretion and overrule Vera’s issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                               Harvey Brown
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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




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