Opinion issued August 27, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-10-00627-CR
                           ———————————


         EX PARTE YEKATERINA TANKLEVSKAYA, Applicant



       On Appeal from the County Criminal Court at Law Number 11
                          Harris County, Texas
                      Trial Court Case No. 1686832



             MEMORANDUM OPINION ON REMAND FROM
                   THE COURT OF CRIMINAL APPEALS
      In 2009, applicant, Yekaterina Tanklevskaya, pleaded guilty to the Class B

misdemeanor offense of possession of less than two ounces of marijuana, and the

trial court assessed punishment at four days’ confinement in the Harris County Jail
and a six-month suspension of applicant’s driver’s license.1 Applicant did not

appeal her conviction. Applicant, a permanent legal resident, then left the country

to visit relatives. She was detained by Immigration and Naturalization Services

officials upon her return. In 2010, shortly after the United States Supreme Court

decided Padilla v. Kentucky, applicant filed a petition for writ of habeas corpus,

arguing that her trial counsel had rendered ineffective assistance when he failed to

inform her of the specific adverse immigration consequences of her guilty plea,

namely, that when she returned from her planned trip abroad she would be

inadmissible and subject to removal proceedings. The trial court denied habeas

corpus relief.

      We originally reversed the judgment of the trial court and held, among other

things, that Padilla v. Kentucky should be applied retroactively. See Ex parte

Tanklevskaya, 361 S.W.3d 86, 95 (Tex. App.—Houston [1st Dist.] 2011)

(“Tanklevskaya I”), vacated, 393 S.W.3d 787 (Tex. Crim. App. 2013) (per curiam).

The United States Supreme Court subsequently held, in Chaidez v. United States,

133 S. Ct. 1103 (2013), that Padilla does not apply retroactively to cases on

collateral review, and the Court of Criminal Appeals adopted this holding in Ex

parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013). The Court of

Criminal Appeals then vacated our judgment in Tanklevskaya I and remanded the


1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (Vernon 2010).
                                         2
case for us to consider whether the trial court properly denied habeas corpus relief

in light of De Los Reyes. See Ex parte Tanklevskaya, 393 S.W.3d 787 (Tex. Crim.

App. 2013) (per curiam) (“Tanklevskaya II”).

      We affirm.

                                   Background

      In April 2009, applicant was charged with the misdemeanor offense of

possession of less than two ounces of marijuana. Tanklevskaya I, 361 S.W.3d at

89. On the advice of her plea counsel, applicant pleaded guilty to the offense. Id.

The trial court accepted the guilty plea and assessed punishment at four days’

confinement in the Harris County Jail and a six-month suspension of applicant’s

driver’s license. Id. Applicant did not appeal her conviction. Id. Shortly after her

guilty plea, applicant traveled to Germany to visit her father. Id. Upon her return,

immigration officials detained applicant in Memphis, confiscated her permanent

resident card, and allowed her to return to Houston pending the initiation of

removal proceedings. Id. Immigration officials subsequently initiated removal

proceedings against applicant on the basis that her conviction rendered her

“inadmissible” to the United States. See 8 U.S.C.S. § 1182(a)(2)(A)(i)(II) (2008)

(stating that alien convicted of violating any state law relating to controlled

substances is inadmissible).




                                         3
      On May 27, 2010, applicant filed a habeas corpus petition in the trial court,

alleging that her guilty plea was involuntary because her plea counsel rendered

ineffective assistance when he did not advise her of the specific immigration

consequences of her guilty plea, as required by the Supreme Court’s decision in

Padilla. See 559 U.S. 356, 130 S. Ct. 1473 (2010). At the hearing on applicant’s

habeas petition, the parties stipulated that plea counsel informed applicant of the

“general immigration consequences to a guilty plea, but he did not specifically tell

her that, upon leaving and attempting to return to the United States, she would be

presumptively inadmissible.”     Tanklevskaya I, 361 S.W.3d at 90.            Applicant

testified that, had she known that she would be presumptively inadmissible upon

returning to the United States, she “would [not] have accepted the plea as [she]

did.” Id. at 90–91. The trial court denied habeas corpus relief. Id. at 91.

      We initially determined that Padilla should be applied retroactively to cases

on collateral review, that applicant’s inadmissibility upon returning to the United

States was “presumptively mandatory,” and that this adverse immigration

consequence was clear “from reading the inadmissibility and removal statutes.” Id.

at 95, 97. We ultimately held that applicant established that her plea counsel

rendered ineffective assistance, and we granted habeas corpus relief. Id. at 99.

      The State then filed a petition for discretionary review. While that petition

was pending before the Court of Criminal Appeals, the United States Supreme

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Court decided Chaidez in February 2013 and held that Padilla should not be

applied retroactively to cases on collateral review. 133 S. Ct. at 1111, 1113. The

Court of Criminal Appeals adopted this holding in De Los Reyes. 392 S.W.3d at

679. That same day, the Court of Criminal Appeals vacated our judgment in

Tanklevskaya I and remanded the case to us to consider in light of Chaidez and De

Los Reyes. See Tanklevskaya II, 393 S.W.3d at 787.

                          Retroactivity of Padilla v. Kentucky

      In her habeas corpus petition, applicant sought relief from her prior

conviction on the sole basis that, pursuant to Padilla, her plea counsel rendered

ineffective assistance when he did not inform her of the specific adverse

immigration consequences of her guilty plea, namely, that her conviction for

possession of less than two ounces of marijuana made her presumptively

inadmissible and subject to removal from the United States.            See 8 U.S.C.S.

§ 1182(a)(2)(A)(i)(II).

      In Padilla, the Supreme Court noted that deportation is “uniquely difficult to

classify as either a direct or a collateral consequence” of a criminal conviction and

that “[t]he collateral versus direct distinction is thus ill-suited to evaluating a

Strickland [v. Washington]2 claim concerning the specific risk of deportation.”


2
      Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), sets
      out the general standard of proof for ineffective assistance of counsel claims in a
      criminal case.
                                           5
130 S. Ct. at 1482. The Court concluded that professional advice concerning

deportation “is not categorically removed from the ambit of the Sixth Amendment

right to counsel,” and, therefore, Strickland applied to Padilla’s claim for relief. Id.

The Supreme Court ultimately held in Padilla that trial counsel must inform his

client whether his plea carries a risk of deportation. See id. at 1486.

      The Court did not address the question of whether its holding in Padilla

applied retroactively, such that defendants whose convictions were already final at

the time it issued its opinion could seek relief on this basis in a collateral

proceeding. The Supreme Court settled this question in Chaidez. 133 S. Ct. at

1113; see also De Los Reyes, 392 S.W.3d at 678–79 (applying Chaidez); Ibarra v.

State, No. 01-12-00292-CR, 2013 WL 1163967, at *2 (Tex. App.—Houston [1st

Dist.] Mar. 21, 2013, no pet. h.) (same).

      In Chaidez, the Supreme Court noted that, under its prior decision in Teague

v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), the question of whether its criminal

procedure decisions are retroactive “turn[s] on whether they are novel.” 133 S. Ct.

at 1107. When the Court announces a “new rule,” a person whose conviction is

already final may not benefit from application of that rule in a collateral

proceeding. Id. A case announces a new rule “when it breaks new ground or

imposes a new obligation,” such that “the result was not dictated by precedent

existing at the time the defendant’s conviction became final.” Id. (quoting Teague,

                                            6
489 U.S. at 301, 109 S. Ct. at 1070) (emphasis in original). A holding is not so

dictated “unless it would have been ‘apparent to all reasonable jurists.’”        Id.

(quoting Lambrix v. Singletary, 520 U.S. 518, 527–28, 117 S. Ct. 1517, 1525

(1997)). On the other hand, a case does not announce a new rule “[when] it ‘[is]

merely an application of the principle that governed’ a prior decision to a different

set of facts.” Id. (quoting Teague, 489 U.S. at 307, 109 S. Ct. at 1073).

      The Supreme Court explained in Chaidez that Padilla was more than just an

application to a new set of facts of Strickland’s general test for determining

whether trial counsel was constitutionally ineffective. Id. at 1108. In Hill v.

Lockhart, 474 U.S. 52, 106 S. Ct. 366 (1985), the Court had “explicitly left open”

the question of whether trial counsel’s “advice concerning a collateral consequence

must satisfy Sixth Amendment requirements.” Id. In Padilla, the Court “answered

a question about the Sixth Amendment’s reach that [it] had left open,” and, thus,

no precedent of the Supreme Court dictated Padilla’s specific conclusion rejecting

the “categorical approach” to collateral consequences and holding that trial counsel

has an obligation to inform his clients of the risk of adverse immigration

consequences.    Id. at 1110–11; see also De Los Reyes, 392 S.W.3d at 679

(“[W]hen the Supreme Court handed down Padilla . . . . [I]t broke new ground and

imposed a new obligation.”). The Court thus announced a “new rule” in Padilla,

and “defendants whose convictions became final prior to Padilla therefore cannot

                                          7
benefit from its holding.” Chaidez, 133 S. Ct. at 1111, 1113; Ibarra, 2013 WL

1163967, at *2 (“Because Padilla announced a ‘new rule,’ it is not retroactive and

appellant may not now avail himself of the decision on collateral review.”). In De

Los Reyes, the Court of Criminal Appeals noted that it had the ability to “accord

retroactive effect to Padilla as a matter of state habeas law.” 392 S.W.3d at 679

(citing Danforth v. Minnesota, 552 U.S. 264, 275, 128 S. Ct. 1029, 1038 (2008)).

The court declined to do so, however, and instead decided to follow Chaidez’s

holding that Padilla does not apply retroactively.

      Here, applicant pleaded guilty in 2009 to the offense of possession of less

than two ounces of marijuana, and she did not appeal her conviction.             This

conviction thus became final before the Supreme Court decided Padilla. Because

Padilla does not apply retroactively, applicant cannot rely on Padilla in a collateral

proceeding to argue that her plea counsel rendered ineffective assistance. See

Chaidez, 133 S. Ct. at 1113 (“Under Teague, defendants whose convictions

became final prior to Padilla therefore cannot benefit from its holding.”); De Los

Reyes, 392 S.W.3d at 679 (“Applicant may not rely on Padilla in arguing that he

was denied effective assistance of counsel.”); Ibarra, 2013 WL 1163967, at *3

(stating that “appellant may not raise a Padilla issue by way of a collateral attack

on the judgment”).




                                          8
      In her reply brief filed before original submission, applicant argued that the

State waived the issue of Padilla’s retroactive effect because it did not argue that

before the trial court as a basis for denying habeas corpus relief but instead raised it

for the first time on appeal. We disagree.

      General rules of error preservation state that the complaining party must

preserve error in the trial court by bringing the complaint to the trial court’s

attention at a time when the trial court can correct the error. See, e.g., Pena v.

State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). This is a burden placed

upon the “losing” party in the trial court, which, in this case, is applicant. See State

v. Rhinehart, 333 S.W.3d 154, 160 (Tex. Crim. App. 2011) (“[T]he State, as the

losing party in the trial court, failed to preserve the claims that it presented for the

first time on appeal in the court of appeals.”). In this situation, the State, the

“winning” party in the trial court, had no such burden to present its argument to the

trial court that Padilla should not be applied retroactively. See Vennus v. State,

282 S.W.3d 70, 74 (Tex. Crim. App. 2009) (“[T]he State won in the trial court, and

‘ordinary notions of procedural default’ did not prevent it from raising the invited

error claim on appeal as a basis to affirm the trial court’s ruling denying

appellant’s suppression motion.”) (quoting Hailey v. State, 87 S.W.3d 118, 121–22

(Tex. Crim. App. 2002)).




                                           9
      Applicant points to no authority holding otherwise. Indeed, Texas courts

have repeatedly held that a trial court’s decision should be upheld if it is correct on

any theory of law applicable to the case and supported by the record. See, e.g.,

Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (stating that appellate

court will not disturb trial court’s evidentiary ruling if ruling is correct on any

theory of law applicable to ruling, even if trial court gave wrong reason for correct

ruling); Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010) (holding

that State could permissibly make new argument in support of trial court’s ruling

for first time on appeal because “an appellate court will uphold the trial court’s

ruling if that ruling is ‘reasonably supported by the record and is correct on any

theory of law applicable to the case’”) (quoting State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006)).

      We overrule applicant’s sole issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do Not Publish. TEX. R. APP. P. 47.2(b).
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