### 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 T EX

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. § 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
in effective assistance of counsel. We affirm.2 I. B ACKGROUND On November 2, 2009, in accordance with a plea bargain agreement, Martinez pleaded guilty to aggravated sexual assault. See T EX

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. § 22.021 (West
2011 )

. O n November 3, 2009, pursuant to the agreement , the trial court deferred adjudication, sen tenced 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 Tex as Code of Crim inal Proc edure art icle 26.13 and that defense counsel provided ineffective assistance by failing to inform him of the deportation consequence of his guilty plea. See T EX

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. 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 fa iled to advise him of the clear consequences of pleading guilty. 1 Counsel advised Martinez th at 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 t he trial court. See Ex p arte Martinez , No. 13

– 10

– 00390, 2011 WL 2976863, at *4 (Tex. App.

— Corpus Christi July 21, 2011, pet. granted, ju dgm’t vacated w.r.m.) (mem. op., no t 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.3

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 aut omatic 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

r elief on the following grounds: (1) Padilla should apply retroactively to his case; and (2) under Padilla , plea counsel provided ineffective assistance.

II. S TANDARD OF R EVIEW AND A PPLICABLE L AW 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
prov ing, 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 aff ord great deference to the trial court. Ex parte Lafon , 977 S.W.2d 865, 867 (Te x. 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. I d

. 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) (per4

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 l aw 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 pre ponderance of the evidence that : (1) trial counsel’s representation fell below a standard of objective reasonableness, which is measu red by
p rofessional 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 Stri ckland v. Washington , 466 U.S. 668, 687 (1984) ) ; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997 ).
III. D ISCUSSION 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 Padill a, counsel’s failure to warn a noncitizen defendant that he will be deported when a guilty plea carries a cle ar 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 he ld, in5

Chaidez v. United States , 133 S.Ct. 1103, 1106

– 13 (2013), that Padilla declared a new rule 2 and therefore does not apply retroactively to defendants whose convictions became final prior to Padilla

. I d. 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 p arte 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 p arte 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 p arte 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 p arte de los Reyes , and E x parte Juan Gonzalez , Padilla does not apply retroactively to his case. 3 See Chaidez , 133 S.Ct. at 1106

– 13 ; Ex p arte de Los Reyes , 392 S.W.3d at 679; Ex p arte 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 (19 89) “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 d eferred adjudication after a guilty plea is considered a conviction for immigration purposes. See Ex p arte Moreno , 38 2 S.W.3d 523, 526 (Tex. App.

— Fort Worth 2012, pet. ref’d).6

Strickland

, 466 U.S. at 687

– 88 (re cognizing 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 p roceedings )). 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
gu ilty, 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. C ONCLUSION We affirm.

__________________ ROGELIO VALDEZ Chief Justice Do not publish. T EX

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. Delivered and filed the 13th day of June , 201 3

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4 The court reasoned that an aspect of prosecution is collateral if it does no t 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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