                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 EX PARTE:      JUAN CARPIO-CRUZ.                §
                                                 §               No. 08-10-00240-CR
                                                 §
                                                 §                 Appeal from the
                                                 §
                                                 §            Criminal District Court No. 1
                                                 §
                                                 §             of El Paso County, Texas
                                                 §
                                                 §           (TC# 20090D02854-DCR-1)


                                    OPINION ON REMAND

       In June 2009, Juan Carpio-Cruz, a Mexican national, was indicted for the state jail felony

offense of possession of cocaine.   In November 2009, Carpio-Cruz pleaded guilty pursuant to a

plea agreement, to a lowered, class A misdemeanor possession offense.      The trial court deferred

adjudication and placed Carpio-Cruz on community supervision for eleven months.         Following

his plea, the Department of Homeland Security detained Carpio-Cruz and an immigration judge

ordered he be deported to Mexico.    In May 2010, Carpio-Cruz filed a petition for writ of habeas

corpus alleging ineffective assistance of counsel arising from his plea counsel’s failure to advise

him that a guilty plea would lead to his deportation.      The trial court granted Carpio-Cruz’s

requested habeas corpus relief, and the State appealed to this Court.

       We affirmed the trial court’s order and determined Carpio-Cruz met his burden of
establishing ineffective assistance of counsel based on Padilla v. Kentucky, 559 U.S. 356, 373,

130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010).       Ex parte Carpio-Cruz, No. 08-10-00240-CR,

2011 WL 5460848 (Tex. App.—El Paso Nov. 9, 2011), judgment vacated, No. PD-1872-11,

2013 WL 1149964 (Tex.Crim.App. Mar. 20, 2013).               The Court of Criminal Appeals

subsequently vacated our judgment and remanded the case for our consideration in light of its

opinion in Ex parte De Los Reyes, which addressed the issue of Padilla’s retroactivity.        Ex

parte Carpio-Cruz, No. PD-1872-11, 2013 WL 1149964, at *1 (Tex.Crim.App. Mar. 20, 2013).

See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013).

                                        BACKGROUND

       The trial court heard Carpio-Cruz’s writ application and entered written findings of fact

and conclusions of law.   The trial court found that Carpio-Cruz and his wife had informed plea

counsel that Carpio-Cruz had been a legal permanent resident in the United States for less than

five years at the time of his arrest.   The trial court further found plea counsel only advised

Carpio-Cruz his guilty plea could affect his immigration status, not that it would lead to

immigration proceedings and deportation.    Applicable immigration law clearly states an alien is

deportable after being convicted of any violation of a law or regulation relating to a controlled

substance, and a plea under deferred adjudication is considered a conviction for immigration law

purposes.   8 U.S.C. § 1101(a)(48)(A); 8 U.S.C. § 1227 (a)(2)(B)(i).   The trial court concluded

Carpio-Cruz received ineffective assistance of counsel under Padilla v. Kentucky, because his

trial counsel misadvised him of the immigration consequences of his guilty plea.   The trial court

concluded that counsel was ineffective because the terms of the immigration statute are succinct,

clear, and explicit that Carpio-Cruz would be deported from the United States if he entered a


                                                2
guilty plea to the cocaine charge as he was ineligible for cancelation of removal since he had not

been a legal permanent resident for at least five years, and counsel failed to advise him of this

fact.   Padilla, 559 U.S. at 368-69, 130 S.Ct. at 1483.

        The trial court granted Carpio-Cruz’s requested relief, withdrew his November 30, 2009

guilty plea, and vacated the order of deferred adjudication. The State appealed to this Court and

we affirmed the trial court’s determination applying Padilla retroactively.                Ex parte

Carpio-Cruz, No. 08-10-00240-CR, 2011 WL 5460848 (Tex. App.—El Paso Nov. 9, 2011),

judgment vacated, No. PD-1872-11, 2013 WL 1149964 (Tex.Crim.App. Mar. 20, 2013). The

State then petitioned the Texas Court of Criminal Appeals for discretionary review.        Ex parte

Carpio-Cruz, PD-1872-11, 2013 WL 1149964 (Tex.Crim.App. Mar. 20, 2013). We reconsider

the trial court’s determination of ineffective assistance of counsel on remand.

                                          DISCUSSION

                                        Standard of Review

        We review a trial court’s ruling on an application for writ of habeas corpus for an abuse

of discretion, examining the evidence in a light most favorable to the trial court’s ruling,

affording almost total deference to the trial court’s determination of historical facts.   Kniatt v.

State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006).

        When claiming ineffective assistance of counsel in entering a plea, a defendant must

establish that: (1) 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, 694, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Moussazadeh, 361 S.W.3d


                                                 3
684, 691 (Tex.Crim.App. 2012).

         The claimant bears the burden of establishing both prongs of the Strickland test by a

preponderance of the evidence.      Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.Crim.App.

2011).     Failure to meet the burden for either prong defeats the ineffectiveness claim.

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70. Our review of the actions taken by counsel is

highly deferential and carries a strong presumption that counsel’s conduct was not deficient.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Ex parte Moussazadeh, 361 S.W.3d at 691.

To prevail, a defendant must overcome the presumption that, under the circumstances, counsel’s

conduct fell within an objective standard of reasonable professional norms.   See Strickland, 466

U.S. at 689, 104 S.Ct. at 2065; Ex parte Moussazadeh, 361 S.W.3d at 691.

         Pre-Padilla, trial counsel did not violate a defendant’s Sixth Amendment right to

effective assistance of counsel by failing to properly advise his client about collateral

consequences of the prosecution.      Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.

1997).    Immigration consequences, including deportation have traditionally been considered

collateral consequences of a guilty plea.        State v. Jimenez, 987 S.W.2d 886, 888–89

(Tex.Crim.App. 1999); see also Ex parte Morrow, 952 S.W.2d at 536.

         In Padilla, the United States Supreme Court held that trial counsel must advise a

non-citizen client whether a guilty plea carries a risk of immigration consequences including

deportation.   Padilla, 559 U.S. at 373-74, 130 S.Ct. at 1486.        The nature of this advice

depends on the applicable immigration law.      Id.   When an immigration consequence is “truly

clear,” counsel’s failure to give correct advice is sufficient to satisfy the first prong of a

Strickland ineffective assistance claim.   Id. at 369, 130 S.Ct. at 1483-84. Post-Padilla, we and


                                                 4
many of our sister courts have determined that Padilla’s holding applied retroactively.

       The Supreme Court clarified the issue of Padilla’s retroactive application in Chaidez v.

United States, holding that Padilla announced a new rule regarding counsel’s obligations to

provide immigration advice, and therefore, Padilla does not apply retroactively to convictions

made final prior to its ruling.   Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013). The

Texas Court of Criminal Appeals adhered to the Chaidez analysis in determining Padilla also

does not apply retroactively as a matter of state habeas law.         Ex parte De Los Reyes, 392

S.W.3d at 679. The Texas Court of Criminal Appeals further clarified, while normally an order

of deferred adjudication is not considered a final conviction for state law, it is for the purposes of

federal immigration law.     State v. Guerrero, 400 S.W.3d 576, 587–88 (Tex.Crim.App. 2013).

Therefore, for purposes of a Padilla analysis, a final conviction occurs at the time a defendant

pleaded guilty and was placed on deferred adjudication.      Id.

                                              Analysis

       Because Carpio-Cruz’s ineffective assistance of counsel claims relied on Padilla, we

review the timing of his plea to determine whether or not the standards established in Padilla

apply to his case.   Ex parte De Los Reyes, 392 S.W.3d at 679.       Carpio-Cruz pleaded guilty on

November 30, 2009.       Carpio-Cruz took no further action regarding the order of deferred

adjudication, therefore his conviction became final on November 30, 2009, for purposes of

federal immigration law and our review.      See Guerrero, 400 S.W.3d at 587–88.         Because the

United States Supreme Court did not issue Padilla until March 31, 2010, Carpio-Cruz may not

benefit from the retroactive application of Padilla’s holding.     See Chaidez, 133 S.Ct. at 1113;

Ex parte De Los Reyes, 392 S.W.3d at 679.      See also Guerrero, 400 S.W.3d at 587–88.


                                                  5
       Pre-Padilla, counsel did not have an obligation to advise clients on the possible

immigration consequences of a plea.      Ex parte Morrow, 952 S.W.2d at 536; Jimenez, 987

S.W.2d at 888–89. We defer to the trial court’s undisputed finding that plea counsel advised

Carpio-Cruz he could be subject to immigration consequences, including deportation, based on

his guilty plea and conclude that counsel did not render ineffective assistance.   See Kniatt, 206

S.W.3d at 664; see also Jimenez, 987 S.W.2d at 888–89; Ex parte Morrow, 952 S.W.2d at 536.

Because Carpio-Cruz cannot satisfy the first Strickland prong, we need not address the second

Strickland prong.   See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70.

       Accordingly, the trial court’s grant of habeas corpus relief on the basis of ineffective

assistance of counsel constitutes an abuse of discretion.   Id. See also Kniatt, 206 S.W.3d at

664.

                                        CONCLUSION

       The trial court’s judgment is reversed and judgment is rendered denying the application

for writ of habeas corpus.   TEX.R.APP.P. 43.2(c).



                                             YVONNE T. RODRIGUEZ, Justice
October 17, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating

(Do Not Publish)




                                                6
