                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-16-00275-CR


                         VICTOR MANUEL PENA, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 287th District Court
                                    Parmer County, Texas
              Trial Court No. 3306, Honorable Gordon Houston Green, Presiding

                                      May 22, 2018

                                       OPINION
                     Before CAMPBELL and PIRTLE and PARKER, JJ.


      Appellant Victor Manuel Pena pled guilty in 2012, pursuant to a plea agreement,

to the offense of delivery of cocaine, in an amount more than four grams but less than

200 grams.1 He now appeals from the trial court’s order adjudicating him guilty of the

offense, revoking his community supervision, and sentencing him to six years of

incarceration. In his appellate brief, appellant contends the trial court erred by denying




      1   See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2015).
his motion to set aside his 2012 plea of guilty because his attorney provided him

ineffective assistance by failing to properly advise him of the deportation consequences

of his plea. We affirm the trial court’s judgment.


                                           Background


       After appellant, a legal resident with a green card, was indicted for delivery of the

controlled substance, he entered into a plea agreement with the State. Appellant agreed

to waive rights, including his right to a jury trial, in exchange for a recommended sentence

deferring his adjudication of guilt for six years and placing him on community supervision.

After a hearing, the court accepted appellant’s plea of guilty, placed appellant on deferred

adjudication community supervision for the agreed-upon period of six years, and signed

an order of deferred adjudication consistent with the plea agreement. The court certified

that appellant had no right to appeal the plea-bargained case, and that appellant waived

the right of appeal. No notice of appeal was filed.


       In 2016, the trial court held a hearing on the State’s motion to adjudicate appellant’s

guilt. The State alleged appellant violated the conditions of his community supervision in

several ways, among others by leaving the county and the State without permission on

two occasions, by failing to report for many months, by committing new criminal offenses,

and by failing to report arrests to his community supervision officer. At the hearing,

represented by new counsel, appellant raised a motion to set aside his plea of guilty. As

grounds for that motion, appellant argued his original counsel never told him he would be

deported as a result of his guilty plea.




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       The trial court heard testimony from appellant and from his original counsel. Under

questioning by appellant’s counsel, his original counsel testified contrary to appellant’s

assertion. She said that before appellant’s plea, she and appellant had a “very detailed

conversation about immigration, deportation, naturalization, and all that comes with a

felony deferred conviction.” The court denied appellant’s motion to set aside his guilty

plea, finding he had not established either that his original counsel’s performance fell

below an objective standard of reasonableness, or that a reasonable probability existed

that the results of the proceeding would have been different but for any ineffectiveness.


       After his motion was denied, appellant pled “true” to each of the allegations in the

State’s motion to adjudicate guilt and the court adjudicated him guilty, revoked his

community supervision and sentenced him as noted.


                                         Analysis


       In this appeal, appellant argues the trial court erred by denying his motion to set

aside his plea of guilty.   He continues to assert his original counsel rendered him

ineffective assistance through her inadequate advice concerning the immigration

consequences of his plea. We agree with the State that appellant’s contention must fail,

but for reasons different than those argued by the State.


       In Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999), the court held the

defendant, in his appeal of his adjudication of guilt, could not raise issues concerning his

conviction that could have been raised when his deferred adjudication was first imposed.

The defendant argued that the evidence presented in his original plea proceeding was

insufficient to prove his guilt. Id. The Court of Criminal Appeals stated: “a defendant


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placed on deferred adjudication community supervision may raise issues relating to the

original plea proceeding, such as evidentiary sufficiency, only in appeals taken when

deferred adjudication community supervision is first imposed.” Id. at 661-62. As we later

held, the holding of the Manuel opinion is not limited to issues of evidentiary insufficiency.

Webb v. State, 20 S.W.3d 834, 836 (Tex. App.—Amarillo 2000, no pet.) (Manuel barred

post-adjudication appeal, following deferral, asserting involuntariness of guilty plea); see

also George E. Dix & John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND

PROCEDURE § 56:86 (3d ed. 2011).


       In its 1985 decision in Hill v. Lockhart, the United States Supreme Court held that

“the two-part Strickland v. Washington test applies to challenges to guilty pleas based on

ineffective assistance of counsel.”       474 U.S. 52, 58 (1985) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). Padilla v. Kentucky applied the Strickland standard

to a claim that the defendant’s lawyer failed to provide needed advice about the

deportation consequences of a plea of guilty. 559 U.S. 356, 366 (2010); see Chaidez v.

United States, 568 U.S. 342 (2013) (describing nature of Padilla holding); Ex parte Torres,

483 S.W.3d 35, 46 (Tex. Crim. App. 2016) (“Padilla requires that counsel give a defendant

accurate legal advice about the ‘truly clear’ consequences of a plea of guilty to an offense

that, as a matter of law, renders him ‘subject to automatic deportation’”). For the prejudice

prong of the Strickland test in guilty-plea challenges, the Court of Criminal Appeals has

adopted the standard stated by the Supreme Court in Hill. Torres, 483 S.W.3d at 47

(citing Hill, 474 U.S. at 60). By that standard, when a defendant enters a guilty plea with

the advice of counsel and challenges the validity of the plea with a claim of ineffectiveness

of counsel, the prejudice inquiry asks “whether there is a reasonable probability that, but


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for counsel’s errors, he would not have pleaded guilty and would have insisted on going

to trial.” 483 S.W.3d at 47 (citations omitted).


       Like other instances in which a defendant’s plea is induced by ineffective

assistance of counsel, counsel’s failure to abide by Padilla renders a guilty plea

involuntary if the required prejudice is shown. See Ex parte Aguilar, 537 S.W.3d 122,

129 (Tex. Crim. App. 2017) (incorrect advice under Padilla rendered plea involuntary); Ex

parte Moussazadeh, 361 S.W.3d 684, 688-89 (Tex. Crim. App. 2012) (“[c]ounsel’s advice

can provide assistance so ineffective that it renders a guilty plea involuntary”).


       The involuntariness of a guilty plea, however, does not alone make the judgment

of conviction void. Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001) (citing

Custis v. United States, 511 U.S. 485, 496 (1994)); Davila v. State, No. 07-14-00408-CR,

2016 Tex. App. LEXIS 12414, at *6 (Tex. App.—Amarillo Nov. 17, 2016, pet. ref’d) (mem.

op., not designated for publication) (“‘involuntary plea’ preceding deferred adjudication

community supervision does not render the later judgment of conviction void”); Cordero

v. State, No. 12-12-00365-CR, 2013 Tex. App. LEXIS 9540, at *2 (Tex. App.—Tyler July

31, 2013, pet. ref’d) (mem. op., not designated for publication) (“[e]ven if meritorious, a

plea of ineffective assistance of counsel does not make a conviction void”). For that

reason, the “void judgment” exception to Manuel does not apply here. See Nix v. State,

65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (applying void judgment exception in deferred

adjudication context, but describing “very rare situations” in which judgment of conviction

is void).




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       As noted, appellant pled guilty and received deferred adjudication community

supervision. All of the events of which appellant now complains occurred before or during

the original plea hearing. He may not raise, in his appeal of the adjudication of his guilt,

the issue of his trial counsel’s compliance with her obligations under Padilla v. Kentucky.

Ex parte Aguilar, 537 S.W.3d at 129; Manuel, 994 S.W.2d at 661-62; Webb, 20 S.W.3d

at 836.


       We overrule appellant’s single issue and affirm the trial court’s judgment.




                                                        James T. Campbell
                                                           Justice


Publish.




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