### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00249- CR
Ex parte Juan Valenzuela-Rodriguez

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 629 36- A, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J uan Valenzuela- Rodrigue z ap p ea ls from the trial court’s denial of his application for writ of habeas corpus challeng i n g h i s m isdemeanor conviction for possession of a controlled substance. See Tex. Code Crim. Proc. art. 11.09. For the following rea sons, we aff irm.
BACK GR OUND Pursuant to a plea ag ree m en t, appellant enter ed a plea of g uilty to the offe nse of possession of a controlled substance in a n amount of less than one g ram, see Tex. Hea lth & Safety Code § 481.115(b) (state jail felony ), and was prosec uted under section 12.44(b) of the Texas Penal Code for a class A misdemeanor. See Tex. Pen al C o d e § 1 2 .44(b). Prior to acc epting his plea of g uilty , the trial court admonished appellant about possible immigra tion conseque nces. See Tex. Co d e C ri m . P ro c. art. 26.13(a) (4). After acc epting his plea, the trial court followed the plea agreement and assessed punishment at confine ment for one day in the county jail an d a fi n e o f $1,000. The judgme nt of conviction is dated J anuar y 30, 2009. Appellant was not a citizen of the United States at the time of the inc ident in question.Ap p el lant filed his post-conviction application for writ of habea s corpus in

September 2012. He alleg ed that he was being held by immigra tion authorities for deporta tion and that his plea was involunta ry b ecause his counsel failed to corr ectly advise him about the immigra tion conseque nces of a g uilty plea. His application was supported by the aff idavit of his trial counsel in the underlying criminal proce eding

. Counsel aver red that, in his opinion, appellant’ s plea
was “base d on err oneous advice ” and “not voluntary .” Acc ording to counsel, under the terms of the plea ag ree ment, the State ag ree d to dismiss a companion char g e of driving while intox icated in
ex ch an g e for appellant’ s plea of g uilty to the char g e of possession of a controlled subst an ce . Counsel aver

red that he believed incorre ctly at the time that the plea ag ree ment “would be the best way to avoid s erious im migr ation conseque nces” and that “[i]t would have be en better to plead to the DWI and g et the possession ca se dismissed.”

The trial court order ed supplementation of the rec ord with aff idavits. Trial counsel filed a supplemental aff

idavit in which he clar ified and provided more details about the advice that he g av e t o ap p el lant. He aver red that he did not “re call” appellant’ s immigra tion status and, “in hindsight,” he “should have spent more time explaining the immigra tion conseque nces and not have relied heavily on [appellant]’s require ment that he ‘not g o to jail,’ if possible.” After the supplementation, the trial court enter ed finding s of fac t and conclusions of law rec ommending that the applica tion be denied. This appea l followed. 1

The parties trea t the trial court’s rec ommendation that the relief reque sted be denied, made 1 in its finding s of fac t and conclusions of law, as a denial of the application. Acc ording ly , we do the same. See Ex parte Jordan , 659 S.W .2d 827, 828 (Tex. Crim. App. 1983) (cour ts of appea ls ha

ve jurisdiction of appea l from trial court’s denial of application broug ht under article 11.09); Ex parte Johnson , 561 S.W .2d 841, 842 (Tex. Crim. App. 1978) (district courts have jurisdiction to deter mine 2STANDARD OF REVIEW W e revie w a trial court’s denial of habea s corpus relief for an abuse of discretion. Kniatt v. State , 206 S.W .3d 657, 664 (Tex. Crim. App. 2006). I n conducting our revie w, we revie w the fac ts in t h e light most favor able to the trial court’s ruling

. Id

. An applicant seeking post-conviction habe as cor pus relief has t he burden to prove his claims by a pre pondera nce of the evidenc e. Id. ; Ex parte Richardson , 70 S.W .3d 865, 870 (Tex. Crim. App. 2002) (“To preva il upon
a post-conviction writ of habea s corpus, applicant bear s the burden of proving , by a preponde ranc e of the e vidence , the fa cts that would entitle him to relief.” )
ANALYSIS I n four points of err or, appellant contends that the trial court abused its discretion by deny ing his reque st for habea s corpus relief

. He contends that his counsel aff irmatively misled him about the immigra ti on conseque nces of the plea ag ree ment and that the trial court abused its discretion by concluding that his “c o unsel’s err oneous advice mere ly went to a collater al conseque nce of the conviction” and by rely ing on (i) g uilty plea admonishments g iven to appellant at the time of his g uilty plea, see Tex. Code Crim. Proc. art. 26
. 1 3 (a)(4); (ii) Chaidez v. United States , 133 S. Ct. 1103 (2013); and (iii) the trial court’s conclusion that appell an t d i d n o t d em o nstrate prejudice as a result of his counsel’s defic ient perf ormanc e. See Stricklan d

v. W ashington , 466 U.S. 668, 687–88 (1984) (re quiring showing of defic ient perf ormance and prejudice to support ineffe ctive assistanc e of c ounsel claim). Appe llant’s points of error hinge on

post-conviction habe as cor pus applications in case s involving misdemeanor s).

3his claim t hat hi s attorney aff irmatively mis l ed h i m on the advisabili ty of acce pting the plea offer beca use t he deportation conseque nces of his plea were “ce rtain.” See 8 U.S.C. § 1227(a)(2) (B )(i) (“A ny alien who at any time afte r admission has been convicted of a violat i o n o f

. . . any law or reg ulation of a State
. . . rela ting to a controlled substance

. . . other than a single offe nse involving possession for one’ s own use of 30 g rams or le ss of marijuana , is deportable.” ).

I n Padilla v. Kentucky , 559 U.S. 356 (2010), the Supreme Court of the United States held that “counse l must inform her client whether his plea car ries a risk of deporta tion.” Id

. at 374. The Supreme Court, howeve r, held in Chaidez that the rule anno u n ced in Padilla did not apply retroa ctively

. 133 S. Ct. at 1113. The Texas Court of Criminal Appea ls also has held that the rule
announce d in Padilla does not apply re t ro ac t i vely under the Texas Constit ution. See Ex parte De Los Rey es , 392 S.W .3d 675, 679 (Tex. Crim. App. 2013).

Be cause appellant’ s conviction was final in 2009 and Padilla was decide d in 2010, appellant cannot benef

it from the rule announced i n P a d i l la , and pre- Padilla law applies. See Chaidez , 1 3 3 S
. C t
. at 1113; Ex parte De Los Rey es , 392 S.W .3d at 679; Ex parte Luna , 401 S.W .3d 329, 3 3 4 (T ex . Ap p .—Houston [14t h Dist.] 2013, no pet.). Under pre- Padilla law, “while the Six th Am en d m en t assure s an acc used of eff ective assistance of counsel in criminal prosec utions, [i t] does not ex tend to ‘collate ral’ aspec ts of the prosec ution,” see Ex parte Luna , 401 S.W .3d at 334 (quoting Ex parte Morrow , 952 S.W .2d 530, 536 (Tex. Crim. App. 1997)), and immigra tion consequen ce s o f a plea of g uilty g ener ally wer e considere d collater al and did not support an ineffe ctive assistance of counsel claim. See id

. (conc luding that trial court did not abuse its discretion in deny

ing habea s application beca use defendant “had no constitutional rig ht to

4eff

ective assista

n c e o f c o u n s e l in w a r n in g about the collater al immigra tion conseque nces of his g uilty plea” under pre- Padilla law); see also State v. Jimene z , 987 S.W .2d 886, 888–89 (Tex. Crim. App. 1999) (noting that g ener ally g uilty plea “ will not be rende red involuntary by lack of knowledg e as to some collatera l conseque nce” and that “c onsequenc e has been defined as ‘collate ral’ .

. . wher e ‘its imposit ion is controlled by an age n cy wh i ch operates bey ond the direc t authority of the trial judge ’” ( citations omitt ed))

.

Fur ther, even if we wer e to conclude that appellant’ s trial counsel incorre ctly advised appellant as to immigra

tion conseque nces of the plea ag ree ment, we reje ct appellant’ s contention that such advice —as opposed t o a counsel’s failure to inform a defe ndant of immigra tion conseque nces—dic tates a differ ent re s u l t under pre- Padilla law. See Ex parte Oranday-G arcia , 410 S.W .3d 865, 866, 868 (Tex. Crim. App. 2013) (conc luding Padilla did not apply and deny ing application for habea s corpus relief in which applicant alleg ed that his plea was involuntary beca use “counse l rende red defic ient perf ormanc e by [i nco rr ec t ly ] advising him that conviction for that offe nse would not result in deporta tion”); Ex parte Luna , 401 S.W .3d at 334.
CONCLUSION For these rea sons, we conclude that the trial court did not abuse its discretion,
overr ule appe llant’s points of error , and af firm.

5_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: Aug ust 26, 2014 Do Not Publish

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