1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 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

For a subsequent-habeas writ applicant to receive a merits review on a claim

seeking relief from a trial court’s order that placed an applicant on community 

supervision, the applicant must show the facts or law establishing 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 Rodriguez invokes that exception, arguing the legal basis she used 

1 Tex. Code Crim. Proc. Ann. art. 11.072, § 9(a). 
2

to support her second application for habeas relief was unavailable 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 raised two issues, arguing 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.

The habeas court denied Rodriguez’s second application, and she appealed.

3

In her first issue, Rodriguez argues the habeas court erred when it found she 

failed to prove that, but for trial counsel’s deficient performance, she would have 

rejected the plea bargain agreement she was offered by the State and gone to trial. 

In her second issue, Rodriguez argues the trial court erred by concluding the legal 

basis for her habeas claim could not have been presented because it was unavailable 

when she filed her original 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 basis 
3

We conclude Rodriguez’s second application violates the requirements of 

article 11.072, section 9(a).

5 We affirm the trial court’s order denying Rodriguez’s 

request for relief. 

Background

In 2011, the State charged Rodriguez with possessing marijuana, a thirddegree 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 guilty, 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 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 that date.”).

5 Id. § 9(a) (providing that a habeas court may not grant relief on the basis of 

a subsequent application when the current claim and issues could have previously 

been presented 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 her had she realized she could be deported.

7

 

In February 2013, the 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. Although Rodriguez appealed, we 

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 failed to “properly advise her regarding the immigration consequences 

of her plea, as required under Padilla v. Kentucky[.]”9 She argued that in her 2019 

application, she could not have used the same arguments she used in 2012 because 

Lee v. United States10 changed the law on how evidence on a Padilla claim is 

reviewed. We note the Supreme Court decided Lee five years after Rodriguez filed 

her first application seeking habeas relief. 

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 the habeas court considered Rodriguez’s second application, it

disagreed with her claim that Lee changed the law. Rejecting the second application,

the habeas court explained: “[T]he Supreme Court’s holding in Lee . . . did not 

establish a legal basis for habeas relief that could not have been reasonably 

formulated from 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

Article 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 

where a court has placed a defendant on community supervision after deferring a 

finding of guilt.

12 The statute prohibits courts from granting relief on subsequent

applications unless the applicant, in the second proceeding, establishes the claims 

and issues she seeks to raise were not and could not have been presented when she 

filed 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 court in the applicant’s previously 

considered application for habeas relief.

14 When the habeas court rejected

Rodriguez’s first application, she triggered the restrictions of article 11.072, which

apply to all subsequent applications for relief from orders courts use to place 

individuals 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 claims 

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 

through 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. Instead, 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 claiming ineffective 

assistance of counsel must demonstrate both (1) deficient performance by counsel 

falling below an objective standard of reasonableness, and (2) prejudice that resulted

from counsel’s errors.

18 In Hill v. Lockhart, a case decided in 1985, the 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 collateral challenge seeking to overturn a guilty plea

requires 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 determine whether, “but for counsel’s errors, [the defendant]

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 defendants in criminal cases must inform their clients about whether 

pleading guilty risks the client’s deportation.23 And finally, Padilla explained that

when the defendant pleads guilty and then collaterally challenges the voluntariness 

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 review 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 plead guilty. Lee, who was not 

a citizen of the United States, pleaded guilty but later filed a habeas application 

challenging the voluntariness of his plea. Urging the Supreme Court to adopt a per 

se rule that defendants without viable defenses to a criminal charge can’t challenge 

the voluntariness of their pleas, the Government argued that Lee could not have been

prejudiced 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.” Rejecting the Government’s argument urging the Court to adopt a 

per se rule, the Supreme Court stated that categorical rules do not govern 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

The Lee Court noted “the Government overlooks []the inquiry [] prescribed in Hill 

v. Lockhart focuses on a defendant’s decisionmaking, which may not turn solely on 

the likelihood of conviction after trial.” The Court suggested that courts in habeas 

26 Id. at 1966.

27 Id.
10

proceedings should examine contemporaneous evidence to evaluate claims alleging 

the defendant’s plea was involuntary because counsel allegedly failed to provide 

proper advice about the possible immigration consequences associated with the

plea.

28

Like Padilla, Lee requires habeas courts to make a normative decision on a 

case-by-case basis in deciding whether an applicant seeking habeas relief would

have rejected a plea bargain agreement and chosen instead to go to trial. Thus, Lee

did not change the standard that courts are required to use when reviewing Strickland

claims: instead, Lee merely applied 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. Neither this 

Court, nor the habeas court that considered Rodriguez’s first habeas case, refused to 

consider the circumstances that surrounded 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 that 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 this 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 09-13-00148-

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. Article 11.072 

section 9 provides that “a court may not consider the merits 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 Rodriguez’s claims have not 

changed between now and 2012.

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

31 See id. 19.3 (“After its plenary power expires, the court cannot vacate or 

modify its judgment.”).

32 Rodriguez, 2013 WL 4773934, at *1. 

33 See Tex. Code Crim. Proc. Ann. art. 11.072, § 9. 
12

For the reasons explained above, the trial court’s order denying Rodriguez’s 

application in Trial Court Cause Number 11-12-13384-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.