Reversed and Rendered and Opinion on Remand filed June 13, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00701-CR

                       EX PARTE RAHUL SUDHAKAR


                On Appeal from the County Court at Law No. 1
                          Fort Bend County, Texas
                   Trial Court Cause No. 09-CCR-145197

                  OPINION              ON      REMAND


      On original submission, the State appealed the trial court’s grant of an
application for writ of habeas corpus that vacated appellee Rahul Sudhakar’s nolo
contendere plea as involuntary under Padilla v. Kentucky, 559 U.S. 356 (2010).
On December 6, 2012, this Court issued an opinion affirming the trial court’s grant
of habeas relief and vacating his nolo contendere plea. Ex parte Sudhakar, No. 14-
11-00701-CR; 2012 WL 6061859 (Tex. App.—Houston [14th Dist.] Dec. 6, 2012).
On April 17, 2013, the Court of Criminal Appeals vacated this Court’s judgment
and remanded the case for consideration in light of Ex parte De Los Reyes, 392
S.W.3d 675 (Tex. Crim. App. 2013) (declining to accord retroactive effect to
Padilla as a matter of state habeas law.). On remand, we reverse and render
judgment that appellee’s plea of nolo contendere is reinstated.

                                  BACKGROUND

       Although an Indian citizen, Rahul Sudhakar has lived in the United States
since childhood. On August 16, 2009, Sudhakar was driving his vehicle when a
police officer stopped him for speeding. The officer recovered Alprazolam, a
controlled substance, from Sudhakar and charged him with reckless driving, see
Tex. Transp. Code Ann. § 545.401, and possession of a controlled substance, see
Tex. Health & Safety Code Ann. §§ 481.104, 481.117.

       Sudhakar’s attorney secured a plea arrangement in which the State agreed to
dismiss the reckless driving charge if Sudhakar pled nolo contendere to the drug
charge and accepted one year of deferred-adjudication community supervision.
Neither Sudhakar’s attorney nor Sudhakar knew, however, that the nolo contendere
plea to the drug charges was a conviction for immigration law purposes and
rendered Sudhakar presumptively deportable. See 8 U.S.C §§ 1101(a)(48)(A)(i),
1227(a)(2)(B)(i) (2006).     Approximately seven months later, Sudhakar was
arrested for possession of marijuana. The State filed a motion to adjudicate his
guilt on the previous possession charge. Almost one year after his second arrest, as
a result of Suhhakar’s plea on the first charge, Immigration and Customs
Enforcement officers took him into custody and initiated proceedings to deport
him.

       Sudhakar applied for a writ of habeas corpus and moved to set aside his plea,
arguing that the plea was involuntary and he received ineffective assistance of
counsel because his counsel failed to warn him of the immigration consequences of
his plea. Following the hearing, the trial court granted Sudhakar’s writ application
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and ordered his plea set aside. The State appealed.

      On original submission, this court followed our precedent in 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), and applied the United States Supreme
Court’s holding in Padilla retroactively to Sudhakar’s nolo contendere plea. We
held that Sudhakar’s counsel rendered ineffective assistance by failing to properly
inform him of the immigration consequences of his plea and affirmed the trial
court’s grant of habeas relief. Ex parte Sudhakar, No. 14-11-00701-CR; 2012 WL
6061859, at *2–6.

                                 HABEAS CORPUS REVIEW

      We generally review a trial court’s decision on an application for habeas
corpus under an abuse of discretion standard of review. See Ex parte Garcia, 353
S.W.3d 785, 787 (Tex. Crim. App. 2011). 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. Ex parte Richardson, 70 S.W.3d 865,
870 (Tex. Crim. App. 2002). We consider the evidence presented in the light most
favorable to the habeas court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006).

                                      ANALYSIS

      Sudhakar based his habeas corpus application on a denial of the effective
assistance of counsel, which he argued rendered his plea involuntary. To establish
ineffective assistance of counsel, a criminal defendant 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


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proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).
At the hearing on his writ application, Sudhakar’s counsel testified that he recited
to Sudhakar the warning required by Texas Code of Criminal Procedure article
26.13(a)(4), which states that “a plea of guilty or nolo contendere for the offense
charged may result in deportation, the exclusion from admission to this country, or
the denial of naturalization under federal law.” The attorney did not otherwise
advise Sudhakar about the plea’s likely immigration consequences..

      In the trial court and on original submission, Sudhakar argued that the
holding in Padilla should be applied retroactively. After this court issued its
opinion on original submission, the United States Supreme Court held in Chaidez
v. United States, ___ U.S. ___, 133 S.Ct. 1103 (2013), that Padilla announced a
“new rule” of criminal procedure so that “a person whose conviction is already
final may not benefit from the decision in a habeas or similar proceeding.” Id. at
1107–08 (citing Teague v. Lane, 489 U.S. 288, 301 (1988)). In addition, the Court
of Criminal Appeals decided that Padilla’s rule does not apply retroactively under
the Texas Constitution.     See Ex parte De Los Reyes, 392 S.W.3d at 675.
Accordingly, we recognize the abrogation of the rule this court adopted in Aguilar,
and we hold that Padilla does not apply retroactively to Sudhakar’s counsel’s
representation in the underlying case. See Ex Parte Luna, No. 14-11-01063-CR,
2013 WL 1197777 (Tex. App.—Houston [14th Dist.] Mar. 26, 2013, no pet.).

      Because Sudhakar’s conviction was final before Padilla was decided, pre-
Padilla law applies to his habeas application alleging ineffective assistance of
counsel. Under that 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

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(Tex. Crim. App. 1997). Immigration consequences of a guilty or nolo contendere
plea are considered collateral; therefore, Sudhakar’s plea would not be rendered
involuntary under the United States or Texas Constitutions even if his attorney
were deficient in informing him of the consequences. See State v. Jimenez, 987
S.W.2d 886, 888–89 (Tex. Crim. App. 1999).               Because Sudhakar had no
constitutional right to effective assistance of counsel in warning about the
collateral immigration consequences of his guilty plea, the trial court abused its
discretion in granting his habeas application.       See Ex parte Luna, 2013 WL
1197777, at *4.

      Therefore, we reverse the trial court’s order granting habeas corpus and
reinstate Sudhakar’s plea of nolo contendere.




                                      /s/       J. Brett Busby
                                                Justice



Panel consists of Justices Frost, McCally, and Busby.
Publish — TEX. R. APP. P. 47.2(b).




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