1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ N O . 09
- 19
- 00339
- CR

__________________

EX PARTE MARITZA DELSONGA RODRIGUEZ

__________________________________________________________________ On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 11
- 12
- 13384
- CR(2)

__________________________________________________________________ MEMORANDUM OPINION
F or a subsequent

- habeas writ applicant to receive a merits review o n a claim seeking relief from a trial court’s order that place d an applicant on community supervision, the applicant must show the facts or law establish ing her claim “ have
not been and could not have been presented ” when the applicant first sought to

overturn the order based on the applicant ’s original request for habeas relief. 1 Maritza Delsonga Rodrigue z invoke s that exception , arguing the legal basis she use d

1 Tex. Code Crim. Proc. Ann. art. 11.072, § 9(a).2 to support her second app lication for habeas relief was un available when she filed her original application.
The habeas court that heard Rodriguez’s initial application denied the application , and on appeal, we affirmed. 2 Subsequently , Rodriguez filed a second application seeking habeas relief. In it, she raise d two issues, argu ing her plea was involuntary because her attorney failed to inform her before she pleaded guilty that being placed on community supervision could affect her status as a resident alien.
T h e habeas court denied Rodriguez’s second application , and she appealed

. 3 In her first issue, Rodriguez argues the habeas court erred when it f ound she failed to prove that, but for trial counsel’s deficient performance, she would have rejected the plea bar gain agreement she was offered by the State and gone to trial

. In her second issue, Rodriguez argues the trial court err ed by conclud ing the legal
basis for her habeas claim could not have been presented because it was unavailable
when she filed her origin al application requesting habeas relief

. 4

2 We resolved Rodriguez’s appeal from the habeas court’s ruling on her original application in Ex parte Rodriguez , No. 09

- 13

- 00148

- CR, 2013 WL 4773934 (Tex. App.

— Beaumont Sept. 4, 2013, no pet.) (mem. op., not designated for publication). Rodriguez did not file a petition for discretionary review

.
3 Tex. Code Crim. Proc. Ann. art. 11.072, § 8 (authorizing the applicant to appeal the denial of a ruling on a habeas applicant’s petition for relief).

4 Id

. art. 11.072, § 9(b) (“For purposes of Subsection [9](a), a legal basis of a claim is unavailable on or before a date described by that subsection if the legal basis3 We conclude Rodriguez ’s s econd application violate s the requirements of
article 11.072, section 9(a)

. 5 W e affirm the trial court’s order den ying Rodriguez’s
request for relief

. Background In 2011, the State charged Rodr iguez with possessin g marijuana , a third

degree felony

. 6 In January 2012, Rodriguez reached a plea bargain agreement with the State, offering to plead guilty in return for the State’s agreement to recommend that the court place her on deferred

- adjudication community supervision for three

years. When the court heard her plea, it agreed to carry out the recommended punishment , accepted Rodriguez’s plea that she was guilty of the crime , but deferred adjudicating her guilt and placed Rodriguez on community supervision

. In September 2012, Rodriguez filed an application for a writ of habeas corpus , alleging her plea was involuntary. Rodriguez claimed that her attorney , before she pleaded g uilty, failed to conduct a proper investigation into her case or to advise her

was not recognized by and could not have been reasonably formulated from a final decision o f the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.”).

5 Id . § 9 (a) (providing that a habeas court may not grant relief on the basis of a subsequent applica tion when the current claim and issues could have previously been pre s ented in the applicant’s original application).

6 See Tex. Health & Safety Code Ann. § 481.121(b)(4).4 about the consequences that pleading guilty would have on her status as a resident
alien

. According to Rodriguez, she would have rejected the plea bargain the State
offered to h er had she realized she could be deport ed

. 7 In February 2013, t he trial court denied Rodriguez’s first application seeking
to overturn the order the trial court entered after Rodriguez pleaded guilty to possession of a controlled substance, marijuana

. Al though Rodriguez appealed , w e
affirmed

. 8 In July 2019, Rodriguez filed her second application seeking habeas relief

. In
that application , Rodriguez alleged her plea in 2012 had been involuntary because
her attorney fail ed to “properly advise her regarding the immigration consequences of her plea , as required under Padilla v. Kentucky [

. ]” 9 S he argued that in her 2019 application, she could not have used the same arguments she used in 2012 b ecause
Lee v. United States 10 changed t he law on h ow evidence on a Padilla claim is
reviewed. We note t he Supreme Court decided Lee five years after Rodriguez filed
her first application seeking habeas re lief

.

7 See Padilla v. Kentucky , 559 U.S. 356 (2010).

8 See Ex parte Rodriguez , 2013 WL 4773934, at *3

- 4.

9 The record shows Rodriguez relied on Padilla when she filed her original petition seeking relief.

10 See Lee v. U.S. , 137 S.Ct. 1958 (2017).5 When t he habeas court considered Rodriguez’s second application , it disagreed with her claim that Lee change d the law. Rejecting the second application , the habeas court explain ed: “ [T] he Supreme Court’s hold ing in Lee . . . did not establish a legal basis for habeas relief that could not have been reasonably
formulated f rom 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 on or before the date [Rodriguez] filed her first post

- conviction writ application.” 11
Article 11.072
Artic le 11.072 of the Texas Code of Criminal Procedure provides the
exclusive means for a district court ’s exercise of original habeas jurisdiction in cases
whe re a court has place d a defendant on community supervision after deferring a finding of guilt

. 12 The statute prohibits courts from grant ing relief on subsequent applications unless the applica nt , i n the second proceeding, establishes the claims
and issues she seek s to raise were not and could not have been presented when she
fil ed her first application seeking habeas relief

. 13

11 Tex. Code Crim. Proc. Ann. art. 11.072, § 9(b).

12 Ex parte Villanueva , 252 S.W.3d 391, 397 (Tex. Crim. App. 2008).

13 Tex. Code Crim. Proc. Ann. art. 11.072, § 9(a).6 For the purposes of article 11.072, the legal basis for a claim is unavailable

“ if the legal basis was not recognized by and could not have been reasonably
formulated from a final decision ” of a higher cour t in the applicant’s previously considered application for habeas relief

. 14 When the habeas court reject ed Rodriguez’s first application , she triggered the restrictions of article 11.072 , which appl y to all subsequent applications for relief from orders courts use to place
individual s on deferred

- adjudication community supervision. 15 Was the legal basis for Rodriguez’s claim available when she filed her first writ application ?
To prevail on her second application for habeas relief , Rodriguez was required
to show the law relevant to her decision to plead guilty had materially changed since
she filed her original application for habeas relief in 2012

. 16 Rodriguez argues the law changed regarding how courts must review the applicant’s evidence on clai ms alleging ineffective assistance of counsel after the court ruled on her first habeas

14 Id. § 9(b). A factual basis of a claim is unavailable if it was not ascertainable th rough the exercise of reasonable diligence at the time of the initial application

. Id. § 9(c). Rodriguez submitted a new affidavit with the subsequent application but she does not argue that her subsequent petition provides a previously unavailable factual basis for her claim that her plea was involuntary due to counsel’s failure to advise her about the immigration consequences of her plea.

15 See Ex parte Salazar , 510 S.W.3d 619, 630 (Tex. App.

— El Paso 2016, pet. ref’d).

16 Tex. Code Crim. Proc. Ann. art. 11.072 , § 2(b).7 case
. 17 But the cases Rodriguez relies on do not support her argument that the law
relevant to her claim changed in a way material to the law in 2012 , the year she first sought to overturn her plea

. I nstead , the cases Rodriguez cites show the opposite

— the law that applies to her claim alleging ineffective assistance of counsel did not change.
Under Strickland v. Washington , a habeas applicant claim ing ineffectiv e
assistance of counsel must demonstrate both (1) deficient performance by counsel falling below an objective standard of reasonableness, and (2) prejudice that result ed
from counsel ’ s errors
. 18 In Hill v. Lockhart , a case decided in 1985, t he Supreme
Court explained how Strickland applies to a court’s review of the evidence when an applicant for habeas relief raises an ineffective assistance of counsel claim

. 19 In Hill , the Court explained that a collatera l challenge seeking to overturn a guilty plea require s the habeas court to decide whether counsel ’ s constitutionally deficient performance affected the outcome of the plea process

. 20 Hill instructs that to make

17 Id . art. 11.072, § 9(a).

18 Strickland v. Washington , 466 U.S. 668, 687 (1984).

19 Hill v. Lockhart , 474 U.S. 52, 59 (1985).

20 Id

.8 that call , the court must determin e whether, “but for counsel ’ s errors, [the de fendant] would not have pleaded guilty and would have insisted on going to trial.” 21
Padilla , decided in 2010

— two years before Rodriguez pleaded guilty

— held
that a defendant ’ s claim of ineffective assistance , when based on the advice the attorney gave the defendant about how the plea would affect the defendant’s immigration status , was not categorically removed from the right to effective counsel guaranteed under the Sixth Amendment

. 22 Padilla made it clear that attorneys representing d efendants in criminal case s must inform their clients about whether plead ing guilty risk s the client ’ s deportation. 23 And finally, Padilla explained that
wh en the defendant pleads guilty and then collaterally challenges the voluntar iness
of the plea , he or she must show prejudice. 24 According to Rodriguez , Lee , a case the Supreme Court decided in 2017, changed the law on how courts re view the evidence relevant to a defendant’s Padilla
claim

. 25 In Lee , the defendant alleged his attorney told him , before he pleaded guilty

21 Id

.

22 Padilla , 559 U.S. at 365 (citing Strickland , 466 U.S. 668).

23 Id. at 374.

24 Id

.

25 Lee , 137 S.Ct. at 1962.9 that the Government would not deport him should he ple a d guilty. Lee , who was not a citizen of the United States, pleaded guilty but later filed a habeas application challeng ing the voluntariness of his plea

. U rg ing the Supreme Cou rt to adopt a per

se rule that defendant s without viable defense s to a criminal charge can ’t challenge the voluntariness of their pleas , the Government argued that Lee could not have been prejudice d simply because he did not get a trial

. 26

In Lee , the Court noted “ a defendant who has no realistic defense to a charge supported by sufficient evidence will be unable to carry his burden of showing prejudice from accepting a guilty plea ” and “ common sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of
success at trial.” R ejecting the Government’s argument urging the Court to adopt a

per se rule , the Supreme Court stated that categorical rules do not go vern a court’s assessment of prejudice , explaining that appellate courts must review evidence on a

case
- by

- case basis and consider the circumstances that led to the defendant’s plea

. 27

T he Lee Court noted “ the Government overlooks [] the inquiry [] prescribed in Hill
v. Lockhart focus es on a defendant ’ s decisionmaking, which may not turn solely on
the likelihood of conviction after trial. ” T he Court suggested that court s in habeas

26 Id. at 1966.

27 Id

.10 proceedings should examin e contemporaneous evidence to evaluat e claim s alleging
the defendant’s plea was in voluntary because counsel alleged ly fail ed to provide proper advice about the possible immigration consequences associated with the plea

. 28

L ike Padilla , Lee require s habeas court s to make a normative decision on a

case
- by

- case basis in decid ing whether an applicant seeking habeas relief would
have rejected a plea bargain agreement and chosen instead to go to trial

. Th us , Lee
did not change the standard that courts are required to use when rev iew ing Strickland
claims : i nstead, Lee merely applie d existing law to Lee’s appeal in the context of his challenge to the voluntariness of his plea

. Turning to Rodriguez ’s first habeas proceeding , Rodriguez argues we failed to apply the standard of review in the manner required in Lee

. We disagree. Lee did not change the standard of review identified in Hill and Strickland

. N either this
C ourt , nor the habeas court that considered Rodriguez’s first h abeas case , refus e d to
consider the circumstances that surround ed her plea when evaluating her ineffective
assistance of counsel claim

. 29 And even had we not applied the proper standard of

28 Id. at 1967.

29 Rodriguez , 2013 WL 4773934, at *3.11 review to Rodriguez’s first appeal , Rodriguez could have corrected th at error had
she pursued an appeal

. 30 Unable to squeeze a change in the law from Lee , Rodriguez asks this Court to “reconsider her previous writ application on [our] own initiative .” But t his Court’s plenary power over the judgment in Rodriguez ’s first appeal has expired. 31 For that

reason, we cannot alter our judgment in Appellate Cause Number 09

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- 00148

- CR

. 32 We overrule Rodriguez’s second issue. Next, we turn to Rodriguez’s first issue , which argues that this Court should overturn the ruling the habeas court made in 2019 on the merits of Rodriguez’s
ineffective assistance claim. We decline to entertain her argument

. A rticle 11.0 72
section 9 provides that “a court may not consider the meri ts of or grant relief based on the subsequent application” when the applicant fails to establish that “the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.” 33 The factual and legal basis for Rodr iguez’s claims have not changed between now and 2012.

30 See generally Tex. R. App. P. 68.

31 See id . 1 9

. 3 (“After its plenary power expires, the court cannot vacate or modify its judgment.”).

32 Rodriguez , 2013 WL 4 773934, at *1.

33 See Tex. Code Crim. Proc. Ann. art. 11.072, § 9.12 For the reasons explained above, t he trial court’s order denying Rodriguez’s application in Trial Court Cause Number 11

- 12

- 133 8 4

- CR(2) is
AFFIRMED

.

_________________________ HOLLIS HORTON Justice Submitted on January 23, 2020 Opinion Delivered February 12, 2020 Do Not Publish Before Kreger, Horton and Johnson, JJ.