                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                   §
                                                                    No. 08-18-00064-CR
                                                   §
                                                                      Appeal from the
  EX PARTE: JESUS AGUILAR.                         §
                                                                    243rd District Court
                                                   §
                                                                  of El Paso County, Texas
                                                   §
                                                                  (TC# 970D04229-243-2)
                                                   §

                                          OPINION

        In this appeal from a grant of Jesus Aguilar’s second application for post-conviction habeas

corpus relief, the State asserts that the trial court erred by considering grounds advanced in

Aguilar’s application that had either been subject to procedural default or else failed on the merits.

        We reverse the judgment of the trial court and render judgment denying relief.

                                         BACKGROUND

        Aguilar was indicted on one felony count of possessing less than a gram of a controlled

substance (cocaine) on or about May 3, 1997. He pleaded guilty to the class-A misdemeanor crime

of possession on January 15, 1999, and was placed on community supervision for two years. The

trial court granted Aguilar’s request for early termination of community supervision in February

2000.
           Later, on May 28, 2014, Aguilar filed an Article 11.072 application for a post-conviction

writ of habeas corpus. In his initial habeas application, Aguilar asserted that trial counsel rendered

ineffective assistance by (1) failing to advise him of the immigration consequences of pleading

guilty as required by Padilla v. Kentucky,1 and (2) failing to file a motion to suppress the cocaine.

The trial court granted habeas relief. This Court reversed, finding that the record did not support

either claim and that Aguilar’s guilty plea pre-dated the immigration consequence disclosure

requirement imposed by Padilla in 2010. Ex parte Aguilar, No. 08-14-00204-CR, 2016 WL

921904, at *4-*6 (Tex.App.—El Paso Mar. 9, 2016, pet. ref’d)(not designated for

publication)(Aguilar I).

           Aguilar filed a subsequent application for a post-conviction writ of habeas corpus on

October 30, 2017. In his subsequent writ application, Aguilar argued (1) his plea was involuntarily

made because he did not understand that pleading guilty to receive a deferred adjudication

dismissal would mean that he would still be considered a felon for federal immigration and

sentencing enhancement purposes; and (2) the Texas deferred adjudication statute violates due

process because Texas law states that a person who successfully completes deferred adjudication

does not suffer the penalty of conviction, and yet a person who completes deferred adjudication

may still be subject to additional penalties under federal law, meaning that the federal government

is not giving full faith and credit to Texas law stating that he was not “convicted” under state law.

           The trial court granted habeas relief. This State’s appeal followed.

                                              DISCUSSION

           In five issues, the State generally avers that all of the bases Aguilar advanced in support of

his habeas application have either been procedurally defaulted or else fail on the merits. We will



1
    559 U.S. 356 (2010)

                                                     2
take the State’s issues out of order, addressing the ineffective assistance of counsel arguments first

before turning to the due process arguments.

                                                       A.

                                    Ineffective Assistance of Counsel

        Aguilar advanced two separate ineffective assistance of counsel claims before the trial

court: (1) ineffective assistance based on a failure to advise him about the adverse immigration

consequences of entering a guilty plea to obtain deferred adjudication;2 and (2) ineffective

assistance based on a failure to advise him about the collateral consequence of potential federal

sentencing enhancements should he be found guilty of a federal crime. The State contends that

neither of these theories could have formed a basis for relief in this case. We agree.

                                                       1.

                    Failure to Advise of Immigration Consequences Pre-Padilla

        In Issue One, the State argues as a threshold matter that the trial court erred to the extent it

relied on a Padilla-type ineffective assistance of counsel as a basis for relief, as Aguilar could have

and did in fact raise a Padilla point in his initial habeas application, meaning that he is procedurally

barred from raising that claim in a subsequent post-conviction habeas corpus application. We

agree that this claim was procedurally barred.

                                        Subsequent Application Bar

        Article 11.072 establishes the habeas corpus procedures by which an applicant who is

convicted of a crime and placed on community supervision can challenge the validity of either the

conviction or the conditions of community supervision. TEX.CODE CRIM.PROC.ANN. art. 11.072,



2
  Although Aguilar frames his claim in terms of his plea being involuntary, the claim that a plea was not made
voluntarily because the defendant did not understand the consequences of the plea is a variation of an ineffective
assistance of counsel claim. As such, we will treat this ground as a claim for ineffective assistance of counsel.

                                                        3
§§ 1–2(b). We review a trial court’s decision on an Article 11.072 petition for abuse of discretion.

Ex parte Salazar, 510 S.W.3d 619, 625 (Tex.App.—El Paso 2016, pet. ref’d).

          Article 11.072 also places restrictions on the filing of multiple writs of habeas corpus. Id.

After a trial court considers and rejects an applicant's initial Article 11.072 habeas corpus

application, the court may not consider further Article 11.072 applications unless the new

application contains sufficient specific facts “establishing that the current claims and issues have

not been and could not have been presented” in a previous application “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). A legal basis is previously unavailable when, at

the time of the previous application, it 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[.]” TEX.CODE CRIM.PROC.ANN. art.

11.072, § 9(b). A factual basis is considered unavailable if it “was not ascertainable through the

exercise of reasonable diligence on or before” the date of the previous application. TEX.CODE

CRIM.PROC.ANN. art. 11.072, § 9(c). The rejection of an initial habeas corpus application is the

trigger event for the Section 9 subsequent application restrictions. Ex parte Salazar, 510 S.W.3d

at 625.

                                                 Analysis

          In the bulk of his brief defending the trial court’s decision, Aguilar urges us to find that the

subsequent application bar does not apply because, at the time of his initial application, the

question of what constituted ineffective assistance post-Padilla was an open issue of first

impression, and had he known that a guilty plea coupled with deferred adjudication would have

resulted in a “conviction” rendering him deportable under federal immigration law, he would have



                                                     4
never pleaded guilty.

         The problem with Aguilar’s argument is that he already raised an identical Padilla claim

in his first habeas application, and this Court in Aguilar I already rejected that claim, finding that

case law was well-settled that Padilla did not apply retroactively and that prior to the Padilla

decision in 2010, a criminal defense attorney did not have a constitutional duty to warn a client

about the immigration consequences of pleading guilty. See Aguilar I, 2016 WL 9219904, at *4.

This same issue was litigated nearly three years ago, and Aguilar does not otherwise state why the

subsequent application bar should not apply to this claim. We find that failure to advise on the

collateral immigration consequences of a guilty plea has been previously decided by this Court

and could not have formed a proper ground for habeas relief.

         Issue One is sustained.3

                                                          2.

        Failure to Advise of Collateral Consequence: Federal Sentencing Enhancement

         In Issue Four, the State contends that the trial court could not have granted habeas relief

under an ineffective assistance of counsel theory based off a failure to advise about any potential

future federal sentencing enhancements because Aguilar’s counsel did not have a constitutional

duty to advise about collateral federal consequences. We agree.

                                               Standard of Review

         We review the merits of the trial court’s habeas decision for abuse of discretion, taking the

evidence in the light most favorable to the ruling, affording the trial court almost total deference

with respect to findings of historical fact, and reviewing the application of law to fact de novo. Ex

parte Beck, 541 S.W.3d 846, 852 (Tex.Crim.App. 2017); Ex parte Carpio-Cruz, No. 08-10-00240-


3
 We need not address the merits of Issue Five dealing with the merits of the Padilla claim because the subsequent
application bar resolves the question of whether the trial court could have granted relief on Aguilar’s Padilla claim.

                                                           5
CR, 2014 WL 5316988, at *2 (Tex.App.—El Paso Oct. 17, 2014, no pet.). To establish ineffective

assistance of counsel, a habeas applicant must show (1) that defense counsel’s performance fell

below an objective standard of reasonableness and (2) a reasonable probability exists that, but for

counsel’s ineffectiveness, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). We strongly presume that counsel’s conduct was not

deficient. Ex parte Carpio-Cruz, 2014 WL 5316988, at *2. The applicant bears the burden of

rebutting this presumption and showing ineffectiveness by a preponderance of the evidence. Id.

                                             Analysis

       Here, Aguilar’s claim does not withstand scrutiny under the first prong of Strickland.

Counsel generally does not have a constitutional duty to advise a defendant about the collateral

consequences of a criminal conviction, including possible future punishment enhancements in

federal court. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997), abrogated in

part on other grounds as recognized by Taylor v. State, 109 S.W.3d 443, 450 (Tex.Crim.App.

2003); Crawford v. State, 155 S.W.3d 612, 614 (Tex.App.—San Antonio 2004, pet. ref’d).

Assuming without deciding that Aguilar’s allegation is true, his lawyer’s failure to advise him of

potential federal consequences stemming from his guilty plea did not constitute ineffective

assistance of counsel, as his lawyer did not have a duty to explain the potential federal sentence

enhancing effects of Aguilar’s plea. Ex parte Morrow, 952 S.W.2d at 536.

       Issue Four is sustained.

                                                B.

                     Unconstitutionality of Deferred Adjudication Statute

       Finally, we turn to the due process grounds advanced in support of this habeas application.

Aguilar asserted in the trial court that Texas’ deferred adjudication statute violated due process



                                                6
because even though it had the purported purpose of avoiding a record of conviction upon the

completion of community supervision, the federal government nevertheless considered Aguilar’s

predicate guilty plea to be sufficient to establish a “conviction” for federal immigration purposes.

       The State puts forward both a procedural and a substantive argument against Aguilar’s

claim that the deferred adjudication statute is unconstitutional. In Issue Two, the State maintains

that review of the statute’s constitutionality is foreclosed because Aguilar could have obtained

review of this issue on direct appeal from his guilty plea, provided that the trial court first granted

permission. See Ex parte Beck, 541 S.W.3d at 852 (complaints that could have been raised on

direct appeal generally cannot be raised in a post-conviction habeas). In Issue Three, the State

alternatively argues that Aguilar cannot succeed on the merits because he failed to show the

deferred adjudication statute was unconstitutional.

       We decline to address the question posed in Issue Two, because even if Aguilar was

foreclosed from obtaining appellate review of this argument by virtue of the terms of his guilty

plea such that his claim is cognizable in habeas proceedings, Aguilar’s claim is without merit. The

fact that the federal government may consider a guilty plea in state court to be an admission

equivalent to a conviction for federal immigration purposes even though Texas’ deferred

adjudication statute allows a defendant who pleads guilty to essentially avoid obtaining a

conviction for state purposes by successfully completing community supervision does not mean

that Texas’ deferred adjudication statute violates due process.         Under the dual-sovereignty

doctrine, both the state and the federal government may penalize the same conduct in different

ways without violating the Due Process Clause of the federal Constitution. Cf. Candelas v. State,

91 S.W.3d 810, 813 (Tex.App.—El Paso 2002, no pet.)(the dual-sovereignty doctrine allows both

the state and the federal governments to independently “seek redress” for infractions of their



                                                  7
respective laws). How the federal government chooses to characterize a defendant’s course of

conduct and actions in state court proceedings for federal purposes is an issue beyond this Court’s

control. Thus, while Aguilar’s guilty plea coupled with completion of deferred adjudication may

allow him to avoid state-level consequences, we cannot dictate to the federal government what

constitutes a state law conviction for federal purposes. Cf. Matter of Mohamed, 27 I&N Dec. 92,

96-98 (B.I.A. 2017)(decision from the Board of Immigration Appeals in which the agency decided

that a Texas pre-trial diversion agreement that resulted in dismissal of charges constituted a

“conviction” for purposes of the Immigration and Nationality Act because it involved an admission

of guilt and the imposition of a penalty by a judge; the Board noted that its interpretation of

“whether or not a conviction exists for immigration purposes is a question of federal law and is

not dependent on the vagaries of state law”). Aguilar’s only recourse related to the federal

government’s purportedly improper characterization of state proceedings would be in federal

court.

         We sustain Issue Three and decline to address Issue Two as unnecessary to the resolution

of this appeal.

                                         CONCLUSION

         The State has shown that the grounds underpinning Aguilar’s habeas application have

either been procedurally default or are otherwise without merit. The judgment of the trial court is

reversed. We render judgment denying Aguilar’s application for habeas relief.



May 31, 2019
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)

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