                             NUMBER 13-11-00380-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

               EX PARTE JOSE GABRIEL GALVAN-HERRERA


                    On appeal from the 206th District Court
                          of Hidalgo County, Texas.


                          MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Rodriguez
       Appellant the State of Texas challenges the trial court's granting of appellee Jose

Gabriel Galvan-Herrera's application for writ of habeas corpus. By two issues, the State

argues that the trial court erred in granting the application because (1) Herrera did not

overcome the procedural bar imposed by code of criminal procedure article 11.072,

section 9, which governs subsequent habeas corpus applications, see TEX. CODE CRIM.

PROC. ANN. art. 11.072, § 9 (West 2005), and (2) Herrera did not meet his burden to prove

that his trial counsel provided ineffective assistance in regard to Herrera's 1987 guilty plea

to a burglary charge. We vacate and dismiss for lack of jurisdiction.
                                       I. Background

       It is undisputed by the parties that Herrera, a Mexican national, is a legal,

permanent resident of the United States.            In 1987, Herrera was indicted for

second-degree felony burglary. Herrera pleaded guilty to the charged offense. The trial

court sentenced him to five years' incarceration, but suspended the sentence and placed

Herrera on probation for a period of five years. In 1992, after Herrera successfully

completed his probation, the trial court set aside the guilty finding, dismissed the

indictment, and discharged Herrera from probation.

       In September 2010, Herrera was arrested by United States Immigration and

Customs Enforcement and placed into deportation proceedings due to his burglary

conviction. In January 2011, Herrera filed his original application for writ of habeas

corpus, alleging that his 1987 trial counsel was ineffective for failing to advise him of the

immigration consequences of his guilty plea.        Herrera attached his affidavit to this

application, which follows in its entirety:

              My name is Jose Gabriel Galvan-Herrera. I am over 18 years of
       age and competent to make this affidavit. The facts stated in this affidavit
       are within my personal knowledge and are true and correct.

              In 1987, I was charged with Burglary of a Building, a second degree
       felony in Hidalgo County, Texas. By this time I was already a legal
       permanent resident. Since I could not afford an attorney, the Court
       appointed Attorney A.C. (Tony) Garcia to defend me. The Court appointed
       Mr. Garcia on July 7, 1987 to represent me. After speaking to him for less
       than thirty (30) minutes, he advised me to plea [sic] guilty because I was
       going to get probation. He did not ask me any questions regarding my
       immigration status. He did not advise me that the plea would affect my
       immigration status. He did not advise me that my plea would make me
       deportable or that I could or would be deported if I pled guilty. I was not
       given enough time to think about what I was doing and with the ill-advice of
       Attorney Garcia, I pled guilty on the same day Attorney Garcia was
       appointed by the Court to protect my rights. I was sentenced to five years
       in the Texas Department of Corrections, however; [sic] it was suspended
                                            2
        and I served five (5) years probation and was fined $750.00.

               I relied completely on the advised [sic] of my attorney, A.C. (Tony)
        Garcia, when I made the decision to plea [sic] guilty. My attorney never
        advised me of the consequences of my plea on my immigration status.
        Had I known the effect this decision would have on my immigration status, I
        would have insisted on going to trial.

No hearing was held on the application, and on March 8, 2011, the trial court issued

findings of fact, conclusions of law, and an order denying Herrera's application.

        On March 10, 2011, Herrera filed an amended application for writ of habeas

corpus.1 The amended application was identical to the original application except that it

included an additional affidavit by Herrera's mother, Rosa Elia Herrera Galvan.

Herrera's mother's affidavit follows in its entirety:

               My name is Rosa Elia Herrera Galvan. I am over 18 years of age
        and competent to make this affidavit. The facts stated in this affidavit are
        within my personal knowledge and are true and correct.

                In 1987, my son Jose Gabriel Galvan-Herrera was arrested for
        Burglary of a Building and was bonded out. My brother and I took Jose to
        his first court appearance. The morning of the hearing, the Judge asked
        Jose if he had a lawyer and if he could afford one. Since he could not
        afford one, the Court appointed Attorney A.C. (Tony) Garcia to protect my
        son's rights. After that, I saw Attorney Garcia walk over to my son and
        spoke [sic] with him for no more than five (5) minutes. Attorney Garcia
        then moved away from Jose and walked back to where he was standing
        before. When my son's case was called, he and Attorney Garcia went
        before the Judge and Jose pled guilty. My son, Jose, was given five (5)
        years in the Texas Department of Corrections, however; [sic] it was
        suspended and he was placed on five (5) years probation and was fined
        $750.00.

               Attorney Garcia did not ask my son Jose any questions regarding his
        immigration status. He only spoke with Jose for no more than five (5)
        minutes before he pled. Mr. Garcia did not advise my son that his guilty
        plea could and would result in his deportation. My son Jose did not know

        1
           Herrera asserts that he did not receive the trial court's March 8 order denying habeas before he
filed his amended application on March 10.
                                                    3
        he could get deported by pleading guilty. We would have had him go to
        trial if we had known he was going to be deported.

On March 17, 2011, Herrera also filed a motion to reconsider the trial court's denial of his

original habeas corpus application.

        The State responded to Herrera's amended application, arguing that the second

application was barred by article 11.072, section 9 of the code of criminal procedure.

See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a). The State also argued that Herrera

did not meet his burden to prove his 1987 trial counsel was ineffective because burglary

was not a deportable offense at the time of Herrera's guilty plea—and thus counsel was

not deficient in not advising Herrera about the immigration consequences of his

plea—and Herrera failed to show he would have insisted on going to trial but for counsel's

deficient advice.2

        On March 20, 2011, the trial court filed findings of fact, conclusions of law, and an

order granting Herrera's subsequent application. In its findings of fact, the trial court


        2
           The concurrence concludes that Herrera's trial counsel was deficient for failing to advise Herrera
of the potential future immigration consequences of his 1987 guilty plea and that Herrera was prejudiced as
a result. However, unlike the concurrence, we cannot look past the fact that burglary was undisputedly not
a deportable offense at the time of Herrera's guilty plea. See Alvarado-Fonseca v. Holder, 631 F.3d 385,
387 (7th Cir. 2011) (citation omitted) (noting that an "aggravated felony" was not a deportable offense until
1988); see also 8 U.S.C. § 1101(a)(43) (1988) (providing that an "aggravated felony" included only murder,
drug trafficking crimes, firearms and destructive devices trafficking, and conspiracy to commit one of those
offenses). To hold that Herrera's counsel was deficient for failing to advise Herrera about immigration
consequences that did not exist at the time of his guilty plea ignores the well-established rule that counsel
cannot be expected to predict future developments in the law, a rule that the concurrence expressly
disregards but that we cannot. See Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim. App. 2005).
         Moreover, the concurrence does not address the entire prejudice prong of the ineffective
assistance of counsel test. To show that he was prejudiced by his trial counsel's deficiency, Herrera must
show that he would have insisted on going to trial if he had known the immigration consequences of his plea
and that it would have been rational to do so under the circumstances. See Padilla v. Kentucky, 130 S.Ct.
1473, 1485 (2010). Here, there is a complete absence of evidence in the record regarding the rationality of
Herrera's claim that he would have insisted on going to trial, much less any specific evidence showing that
it would have been rational for Herrera to insist on going to trial at a time when there were no immigration
consequences to his guilty plea. Without addressing the rationality of Herrera's insistence on going to trial,
the concurrence's analysis of the ineffective assistance of counsel claim is incomplete.
                                                      4
found, in relevant part, that Herrera filed his amended application and motion for

rehearing within thirty days of the court's original order. In its conclusions of law, the trial

court, in relevant part:    discussed article 11.072, section 9 of the code of criminal

procedure, which requires a subsequent application to be based on either facts or law

that could not have been presented in or was not available at the time of the previous

application, see id.; concluded that the amended application and motion to reconsider

were within the trial court's jurisdiction "as a motion for new trial" filed within thirty days of

the original order; and determined that the court is bound by the United States Supreme

Court's opinion in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) and the First Court of

Appeals's holding in State v. Golding, No. 01-10-00685-CR, 2011 Tex. App. LEXIS 3616,

at *31-36 (Tex. App.—Houston [1st Dist.] May 12, 2011), withdrawn and superceded by

No. 01-10-00685-CR, 2011 Tex. App. LEXIS 5360 (Tex. App.—Houston [1st Dist.] July

14, 2011, pet. ref'd). The trial court then granted Herrera's application for writ of habeas

corpus "pursuant to section 9, article 11.072 of the Texas Code of Criminal Procedure."

This appeal followed.

                                   II. Standard of Review

       In reviewing a trial court's decision on a habeas corpus application, we view the

facts in the light most favorable to the trial court's ruling, and absent an abuse of

discretion, we uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.

App. 2006). Although we afford almost total deference to the trial court's determination

of the historical facts, those facts must be supported by the record. Ex parte Garza, 192

S.W.3d 658, 661 (Tex. App.—Corpus Christi 2006, no pet.). If the resolution of the

ultimate question turns on an application of legal standards, we review the determination

                                                5
de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on

other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).

        III. The Nature of Herrera's Second Application and Article 11.072

       By its first issue, the State argues that the trial court abused its discretion in

granting habeas relief on what the State characterizes as Herrera's "subsequent"

application. The State argues that, because the trial court had already issued its order

denying Herrera's original application, Herrera's second application was a subsequent

application subject to the procedural bar in article 11.072, section 9(a) of the code of

criminal procedure. And because Herrera provided neither a previously unavailable

factual or legal basis for his second application, it was barred, and the trial court did not

have jurisdiction to consider it. Because the following turns on applications of legal

principles, we review the trial court's rulings de novo. See id.

A. Was Herrera's Application a "Subsequent" or "Amended" Application?

       The State asserts—and we agree—that the basis for the trial court's granting of

Herrera's second application is unclear from the trial court's March 20, 2011 findings and

conclusions. Specifically, the trial court declares that it has jurisdiction over Herrera's

amended application and motion to reconsider because both were filed within thirty days

of the original order, but then orders Herrera's application granted "pursuant" to article

11.072, section 9. In other words, it is unclear whether the trial court was: granting

Herrera's motion to reconsider and, as such, his "amended" application; or treating his

second application as a "subsequent" application under article 11.072, section 9.

Regardless, the threshold legal question for this Court is whether Herrera's second

application could have been an "amended" application to his first application or, rather,

                                             6
was necessarily a "subsequent" application under article 11.072, section 9. We believe

the latter is the correct procedural characterization of Herrera's second application.

       We first address the trial court's conclusion that Herrera's motion to reconsider and

"amended" application were governed by the rules applicable to motions for new trial.

Herrera argues on appeal that the trial court acted within its authority to treat his motion to

reconsider as a motion for new trial, which, because it was timely filed, extended the

jurisdiction of the trial court, enabling it to rule on his second application as an "amended"

application. See TEX. R. APP. P. 21.4. Rule 21 motions for new trial are a means by

which a defendant directly challenges his guilty verdict or punishment, provided the

motion is filed within thirty days of the verdict or imposition of sentence. See TEX. R. APP.

P. 21.1(a)-(b), 21.4(a).       By contrast, a defendant's collateral attack on his

conviction—i.e., an application for writ of habeas corpus—is governed by chapter 11 of

the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. §§ 11.01-.65 (West

2005 & Supp. 2011); cf. Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth

2005, no pet.) ("An application for habeas corpus is not like a motion for new trial in the

sense that a habeas proceeding is not part of the underlying criminal prosecution against

the applicant.") (citing Greenwell v. Court of Appeals for the 13th Jud. Dist., 159 S.W.3d

645, 650 (Tex. Crim. App. 2005)). Specifically, the Texas Court of Criminal Appeals has

held that

       [b]y enacting Article 11.072, it is clear that the Legislature intended Article
       11.072 to provide the exclusive means by which the district courts may
       exercise their original habeas jurisdiction under Article V, Section 8 of the
       Texas Constitution in cases involving an individual who is either serving a
       term of community supervision or who has completed a term of community
       supervision.

Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008) (emphasis added); see
                                          7
also Doyle v. State, 317 S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd)

("Article 11.072 establishes the procedures for an applicant to seek habeas corpus relief

'from an order or a judgment of conviction ordering community supervision.'" (Citation

omitted.)).

       In light of this, we believe the trial court erred in concluding that it could treat

Herrera's motion to reconsider as a motion for new trial under rule 21 and that its

jurisdiction over Herrera's initial application was extended as a result. Rule 21 does not

apply to habeas proceedings—by its express terms, it governs only direct challenges to a

defendant's conviction or punishment filed within thirty days of conviction or

punishment—and in handling Herrera's habeas application, the trial court's jurisdiction

was solely governed by article 11.072, which provides no motion-for-new-trial

mechanism. See Ex parte Villanueva, 252 S.W.3d at 397; see generally TEX. CODE

CRIM. PROC. ANN. art. 11.072.

       The next question is whether Herrera's second application was a "subsequent"

application under article 11.072. To that end, section 9(a) provides:

       If a subsequent application for a writ of habeas corpus is filed after final
       disposition of an initial application under this article, a court may not
       consider the merits of or grant relief based on the subsequent application
       unless the application contains sufficient specific facts establishing that the
       current claims and issues have not been and could not have been
       presented previously in an original application or in a previously considered
       application filed under this article 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) (emphasis added).              In the habeas

context, the "'final disposition' of an initial writ must entail a disposition relating to the

merits of all the claims raised." Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App.

                                              8
1997).     Here, the trial court's March 8, 2011 order addressed all claims Herrera

presented in his habeas application and ordered that "the application for writ of habeas

corpus is, in all things, DENIED."        The March 8 order, then, amounted to a "final

disposition" of Herrera's initial application as it disposed of the merits of all the claims

raised. As such, Herrera's March 10 amended application was, for purposes of our

analysis, a "subsequent" application governed by article 11.072 and must have overcome

the procedural bars in section 9(a) in order to be considered by the trial court.

B. Did Herrera's Subsequent Application Overcome the Procedural Bar?

         In order to be considered by the trial court, section 9(a) requires any subsequent

application to contain "specific facts" establishing that the claims in the subsequent

application "have not been and could not have been" presented in the initial application

"because the factual or legal basis" for the subsequent claims was unavailable at the time

the initial application was filed. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a). The

State argues that Herrera's subsequent application presented neither a factual nor a legal

basis that was unavailable at the time of his initial application. We agree.

         1. New Factual Basis?

         The factual basis for Herrera's initial application was that his 1987 trial counsel did

not advise him of the potential immigration consequences of his guilty plea. Herrera

supported his initial application with his affidavit, in which he averred that

         [a]fter speaking to [counsel] for less than thirty (30) minutes, he advised me
         to plea [sic] guilty because I was going to get probation. He did not ask me
         any questions regarding my immigration status. He did not advise me that
         the plea would affect my immigration status. He did not advise me that my
         plea would make me deportable or that I could or would be deported if I pled
         guilty.

Herrera's subsequent application was based on the same facts. The only addition to the
                                         9
application was the inclusion of Herrera's mother's affidavit, in which she averred, in

relevant part:

       Attorney Garcia did not ask my son Jose any questions regarding his
       immigration status. He only spoke with Jose for no more than five (5)
       minutes before he pled. Mr. Garcia did not advise my son that his guilty
       plea could and would result in his deportation. My son Jose did not know
       he could get deported by pleading guilty.

       Section 9(c) provides that "a factual basis of a claim is unavailable" at the time of

the initial application "if the factual basis was not ascertainable through the exercise of

reasonable diligence on or before that date." See id. art. 11.072, § 9(c). Herrera's

subsequent application provided no new facts that were not already provided in his initial

application, and thus, it provided no factual basis that had not already been provided to

the trial court. See id. art. 11.072, § 9(a). And even if we were to assume that Herrera's

mother's affidavit did include new facts, Herrera did not demonstrate that his mother's

affidavit was not obtainable, through due diligence, at the time he filed his initial

application less than two months prior to his second application. See id. art. 11.072, §

9(c). As such, Herrera's subsequent application did not overcome the new-factual-basis

procedural bar.

       2. New Legal Basis?

       The legal basis for Herrera's initial application was the United States Supreme

Court's holding in Padilla v. Kentucky. See 130 S. Ct. at 1486 (defense counsel "must

inform her client whether his plea carries a risk of deportation" to satisfy the requirements

of the Sixth Amendment). In its conclusions of law, the trial court appeared to conclude

that the First Court of Appeal's opinion in State v. Golding provided a new legal basis for



                                             10
Herrera's second application. 3          See 2011 Tex. App. LEXIS 3616, at *31-36.                     We

disagree that Golding provided a new legal basis not already provided in Herrera's initial

application.

        Section 9(b) provides that "a legal basis of a claim is unavailable" if "on or before

the date" of the initial application "the legal basis 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." See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(b). In Golding, the First Court

of Appeals held that Padilla applied retroactively to an ineffective assistance claim based

on a 1994 guilty plea. Golding, 2011 Tex. App. LEXIS 3616, at *31. The court noted

that the crime to which the defendant pleaded guilty made him mandatorily deportable

and then affirmed the trial court's granting of habeas where the defendant's trial counsel

did not advise the defendant that he would be deported if he pleaded guilty. Id. at

*32-35. Even if Golding does involve a set of circumstances similar to Herrera's—i.e., a

nearly twenty-year-old guilty plea—Golding does not create a new legal basis for

Herrera's claim. It is merely an application of Padilla to the set of facts in that case. In

other words, the legal basis of Golding is Padilla, and because Padilla was the legal basis

of Herrera's initial application, his second application—even if we assume it was based on

Golding—does not include a legal basis that was unavailable at the time of his first. We


        3
           We note that Herrera did not mention State v. Golding in his subsequent habeas application; the
legal authority and arguments in his subsequent application—based on Padilla v. Kentucky—are identical
to the legal authority and arguments in his initial application. As such, Herrera did not allege "specific
facts" showing that the legal basis for his subsequent application was unavailable at the time of his first.
See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a). However, because the trial court apparently relied on
it and in the interest of justice, we will address whether Golding does provide a new legal basis for the
subsequent application.
                                                    11
also note that, unlike the defendant in Golding, Herrera's offense did not make him

mandatorily deportable at the time he pleaded guilty.

       3. Summary

       Herrera's subsequent application included neither a factual nor legal basis that

was unavailable at time of his initial application. We therefore conclude that the trial

court erred in considering the subsequent application. See TEX. CODE CRIM. PROC. ANN.

art. 11.072, § 9(a). The State's first issue is sustained.

                                     IV. Conclusion

       Because the trial court was without jurisdiction to consider Herrera's subsequent

application, we vacate its March 20, 2011 order granting Herrera's writ of habeas corpus

and dismiss the subsequent application for lack of jurisdiction.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Concurring Memorandum Opinion by Justice Benavides.

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

Delivered and filed the
26th day of April, 2012.




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