                            NUMBER 13-10-00390-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


                   EX PARTE MIGUEL ANGEL MARTINEZ


                   On appeal from the 138th District Court
                        of Cameron County, Texas.


                   MEMORANDUM OPINION ON REMAND

    Before Chief Justice Valdez and Justices Rodriguez and Garza
     Memorandum Opinion on Remand by Chief Justice Valdez
      Appellant Miguel Angel Martinez appeals the trial court’s decision denying him

habeas corpus relief from his 2009 conviction of aggravated sexual assault. See TEX.

PENAL CODE ANN. § 22.021 (West 2011). By one issue, Martinez contends that the trial

court erred in denying his post-conviction application for writ of habeas corpus because

under Padilla v. Kentucky, which should have been applied retroactively, counsel’s

failure to advise him of the mandatory deportation consequence of his plea constituted

ineffective assistance of counsel. We affirm.
                                        I.       BACKGROUND

         On November 2, 2009, in accordance with a plea bargain agreement, Martinez

pleaded guilty to aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021 (West

2011).       On November 3, 2009, pursuant to the agreement, the trial court deferred

adjudication, sentenced Martinez to 180 days in jail and ordered ten years of community

supervision. Martinez did not appeal this judgment.

         On March 3, 2010, after being arrested and detained by Immigration and

Customs Enforcement, Martinez filed a post-conviction writ of habeas corpus in the trial

court, alleging that he was entitled to relief because the court failed to properly

admonish him pursuant to Texas Code of Criminal Procedure article 26.13 and that

defense counsel provided ineffective assistance by failing to inform him of the

deportation consequence of his guilty plea. See TEX. CODE CRIM. PROC. ANN. art. §

26.13 (West 2011).         At the trial court hearing on the writ of habeas corpus, Martinez

argued that under Padilla, trial counsel rendered ineffective assistance because counsel

failed to advise him of the clear consequences of pleading guilty.1 Counsel advised

Martinez that he could be deported, when in fact, deportation was automatic. The trial

court denied Martinez’s writ of habeas corpus.

         Thereafter, Martinez appealed the order denying his request for habeas corpus

relief to this Court, and we affirmed the decision of the trial court.                  See Ex parte

Martinez, No. 13–10–00390, 2011 WL 2976863, at *4 (Tex. App.—Corpus Christi July

21, 2011, pet. granted, judgm’t vacated w.r.m.) (mem. op., not designated for

publication). Martinez then filed a petition for discretionary review in the Texas Court of

         1
            While Martinez’s writ of habeas corpus was still pending in the trial court, the United States
Supreme Court decided Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), which held that when a
noncitizen defendant faces a clear consequence of deportation, defense counsel has a duty to provide
equally clear advice to the defendant.

                                                    2
Criminal Appeals, which subsequently vacated our judgment and remanded the case to

this Court to more fully address whether plea counsel’s advice regarding the

consequence of automatic deportation was adequate under Padilla. Martinez v. State,

No. PD-1338-11, 2012 WL 1868492, at *4 (Tex. Crim. App. May 26, 2012) (mem. op.,

not designated for publication).     On instruction from the Texas Court of Criminal

Appeals, this Court then remanded the cause to the trial court to obtain further findings

on the issue.

       Martinez now challenges the trial court’s subsequent denial of habeas corpus

relief on the following grounds: (1) Padilla should apply retroactively to his case; and (2)

under Padilla, plea counsel provided ineffective assistance.

                    II.    STANDARD OF REVIEW AND APPLICABLE LAW

       We generally review a trial court’s decision on an application for a writ of habeas

under an abuse of discretion standard. See Ex parte Garcia, 353 S.W.3d 785, 788

(Tex. Crim. App. 2011). An applicant seeking habeas corpus relief bears the burden of

proving, 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). In reviewing the trial

court’s decision, we view the evidence in the light most favorable to the ruling and afford

great deference to the trial court. Ex parte Lafon, 977 S.W.2d 865, 867 (Tex. App.—

Dallas 1998, no pet.). Absent a clear abuse of discretion, we accept the trial court’s

decision on whether to grant an applicant’s request for habeas corpus relief. Id.      The

trial judge is the original fact finder in habeas corpus proceedings, and we therefore

afford the utmost deference to the trial judge’s determination of the facts that are

supported by the record, especially when they are based on an evaluation of credibility

and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per


                                             3
curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim.

App. 2007). We may apply a de novo standard of review to “mixed questions of law and

fact” that do not fall within this category. Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). Whether Padilla applies to this case requires us to apply the law to

the facts, and therefore we shall review the trial court’s decision de novo. See id.

       In order to show counsel was ineffective in a guilty plea context, a criminal

defendant must show by a preponderance of the evidence that: (1) trial counsel’s

representation fell below a standard of objective reasonableness, which is measured by

professional norms and standards; and (2) there is a reasonable probability that, but for

counsel’s alleged deficiency, the defendant would not have pled guilty and insisted on

going to trial.     Hill v. Lockhart, 474 U.S. 52, 58–9 (1985) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.

Crim. App. 1997).

                                     III.   DISCUSSION

       By a single issue, Martinez contends that the trial court erred in denying his writ

of habeas corpus because Padilla v. Kentucky should apply retroactively to his case,

and, under Padilla, trial counsel did not properly advise him of the deportation

consequence of his guilty plea. See 130 S.Ct. at 1483. Under Padilla, counsel’s failure

to warn a noncitizen defendant that he will be deported when a guilty plea carries a

clear consequence of deportation constitutes ineffective assistance of counsel under the

Strickland standard.    Id.; Strickland, 466 U.S. at 687 (holding that the standard for

judging counsel’s performance is reasonably effective assistance).

       However, after the Texas Court of Criminal Appeals remanded the case to this

Court, and while this appeal was pending, the United States Supreme Court held, in


                                             4
Chaidez v. United States, 133 S.Ct. 1103, 1106–13 (2013), that Padilla declared a new

rule2 and therefore does not apply retroactively to defendants whose convictions

became final prior to Padilla.         Id.   at 1113.     The Texas Court of Criminal Appeals

recently followed Chaidez, holding that Padilla’s rule does not apply retroactively under

the Texas Constitution. Ex parte de Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App.

2013) (explaining that, as a matter of state habeas law, a noncitizen defendant whose

second theft conviction became final prior to Padilla could not benefit from its holding).

This Court has also recently applied Chaidez in Ex parte Juan Gonzalez, and held that

Padilla does not apply retroactively to a defendant who was subject to deportation

consequences as a result of entering into a plea agreement prior to Padilla being

decided. Ex parte Juan Gonzalez, No. 13–12–005533–CR, 2013 WL 1918454, at *2

(Tex. App.—Corpus Christi May 9, 2013, no pet. h.). Martinez’s conviction became final

when the trial court accepted his guilty plea and entered an order of deferred

adjudication on November 3, 2009; therefore, under Chaidez, Ex parte de los Reyes,

and Ex parte Juan Gonzalez, Padilla does not apply retroactively to his case.3 See

Chaidez, 133 S.Ct. at 1106–13; Ex parte de Los Reyes, 392 S.W.3d at 679; Ex parte

Juan Gonzalez, 2013 WL 1918454, at *2.

        Under pre-Padilla law, a defendant’s Sixth Amendment right to effective

assistance of counsel was not violated by a trial counsel’s failure to provide advice on

collateral aspects of the prosecution.4 Ex parte Morrow, 952 S.W.2d at 536 (citing


        2
           Under the principles set out in Teague v. Lane, 489 U.S. 288, 301 (1989) “a case announces a
new rule if the result was not dictated by precedent existing at the time the defendant’s conviction at the
time the defendant’s conviction became final.”
        3
           The imposition of deferred adjudication after a guilty plea is considered a conviction for
immigration purposes. See Ex parte Moreno, 382 S.W.3d 523, 526 (Tex. App.—Fort Worth 2012, pet.
ref’d).


                                                    5
Strickland, 466 U.S. at 687–88 (recognizing that in the context of a guilty plea, counsel’s

performance is not considered ineffective unless counsel was not acting reasonably

competent and the advice given was not within the range of competence generally

required of attorneys in criminal proceedings)).                      Furthermore, deportation was

considered a collateral consequence of a plea of guilty. 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

(including deportation in a list of consequences that cases have found to be collateral

consequences of prosecution). Therefore, applying pre-Padilla law as we must, we

conclude that counsel’s advice to Martinez that he could be deported if he pleaded

guilty, when the actual consequence was automatic deportation, does not constitute

ineffective assistance of counsel. Accordingly, the trial court did not abuse its discretion

in denying Martinez’s writ of habeas corpus. We overrule Martinez’s sole issue.

                                           IV.     CONCLUSION

        We affirm.

                                                                   __________________
                                                                   ROGELIO VALDEZ
                                                                   Chief Justice

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

Delivered and filed the
13th day of June, 2013.




        4
           The court reasoned that an aspect of prosecution is collateral if it does not follow as a definite,
practical consequence of the defendant’s guilty plea. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim.
App. 1997).

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