Bernardo Lucio Sosa v. State

• Court: Court of Appeals of Texas
• Decided: November 22, 2013
• Docket: 07-13-00074-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00074-CR

BERNARDO LUCIO SOSA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 64th District Court Hale County, Texas Trial Court No. A18660-1012, Honorable Robert W. Kinkaid Jr., Presiding

November 22, 2013

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Appellant, Bernardo Lucio Sosa, appeals his conviction for the offense of evading

arrest or detention by use of a vehicle.1 As a result of appellant’s conviction, he was

sentenced to serve 18 months in a State Jail Facility (SJF) and fined $1,000 with the

SJF commitment suspended for four years of community supervision. Subsequently,

appellant’s community supervision was revoked and he was ordered to serve 18

months in an SJF. Appellant presents four issues on appeal. By these issues, 1 See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (West Supp.2013). appellant contends that his plea was involuntary due to trial counsel’s failure to advise

him of the immigration consequences of his plea of guilty and that by failing to advise

him of the immigration consequences of his plea, trial counsel rendered ineffective

assistance of counsel. In his last two issues, appellant again contends that his plea was

involuntarily made due to trial counsel’s failure to adequately investigate the case and

that this failure to investigate the case rendered trial counsel’s assistance ineffective.

We dismiss for want of jurisdiction.

Factual and Procedural Background

Appellant’s contentions center on the representation he received prior to entering

his plea of guilty to evading arrest or detention by vehicle. Therefore, we will limit our

recitation of the facts to that subject matter.

Appellant was appointed counsel to represent him. According to the record, trial

counsel met with appellant at least one time at his office and again on the day of the

plea of guilty. Further, the record reflects that trial counsel received a complete copy of

the State’s file prior to entering into an agreement with the State for appellant to enter a

plea of guilty. Appellant entered his guilty plea on April 20, 2011. Subsequently, on

February 5, 2013, appellant’s community supervision was revoked following his plea of

true to eight allegations heard on the State’s motion to revoke community supervision.

Appellant ultimately filed his notice of appeal on March 11, 2013.2

2 Because appellant did not file a timely motion for new trial, his notice of appeal was due on or before March 7, 2013. See TEX. R. APP. P. 26.2(a)(1). However, appellant timely filed a motion for extension of time to file his notice of appeal. See TEX. R. APP. P. 26.3. This Court granted appellant’s motion on April 10, 2013.

2 The substantive facts as alleged by appellant are as follows. At the motion for

new trial hearing, trial counsel testified that he admonished appellant personally that, if

appellant was not a citizen of the United States, any plea of guilty could have adverse

impact upon his status, ability to remain in the United States, deportation, and ability to

return to the United States. These were the same admonishments that the trial court

gave appellant prior to accepting appellant’s plea of guilty. During the trial court’s

admonishments, the judge asked appellant if he was a citizen of the United States and

appellant answered affirmatively. Thereafter, the trial court accepted appellant’s plea of

guilty.

Once appellant was placed on community supervision, he was required to report

to the community supervision office. On his third visit to the community supervision

office, agents of Immigration and Customs Enforcement detained him and deportation

proceedings were commenced because appellant was a resident alien and not a United

States citizen. Under immigration rules, as interpreted by federal courts, the offense of

evading arrest or detention by vehicle is considered an aggravated felony and subjects

a non-United States citizen to deportation proceedings.3

As a result of his plea of guilty, appellant is now subject to deportation. This fact

has led to appellant’s appeal of his plea of guilty. The essence of appellant’s appeal is

his contention that he received ineffective assistance of counsel that resulted in the

entry of an involuntary guilty plea.

3 th See United States v. Sanchez-Ledezma, 630 F.3d 447, 451 (5 Cir. 2011), cert. denied, 2011 U.S. LEXIS 4699, 131 S.Ct. 3024, 180 L.Ed.2d 851.

3 Jurisdiction

Appellant seeks to appeal his initial judgment of conviction after his community

supervision has been revoked. An appellant is not permitted to raise on an appeal from

the revocation of his community supervision any claim that he could have brought on

appeal from the original imposition of that community supervision. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 23(b) (West Supp 2013); Wiley v. State, No. PD-1728-12, 2013

Tex. Crim. App. LEXIS 1464, at *15-16 (Tex. Crim. App. Sept. 25, 2013). Whether the

original plea of guilty was voluntary is an issue that must be raised in an appeal from the

original order placing appellant on community supervision. TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 23(b); Wiley, 2013 Tex. Crim. App. LEXIS 1464, at *15-16 (Tex. Crim. App.

Sept. 25, 2013).

In the case before the Court, appellant entered his plea of guilty on April 20,

2011. He took no action to appeal until his community supervision was revoked nearly

two years later, on February 5, 2013. Accordingly, we are without jurisdiction to

consider his issues at this time, and dismiss for want of jurisdiction.

Per Curiam

Do not publish.

Pirtle, J. concurring in the result.