Ex Parte Armando Hernandez Uribe

• Court: Court of Appeals of Texas
• Decided: September 5, 2013
• Docket: 10-13-00012-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00012-CR

EX PARTE ARMANDO HERNANDEZ URIBE,

From the 40th District Court Ellis County, Texas Trial Court No. 31701CR/A

MEMORANDUM OPINION

On September 7, 2007, Armando Hernandez Uribe pleaded guilty to the offense

of evading arrest with a vehicle. TEX. PENAL CODE ANN. § 38.04 (West Supp. 2012). The

trial court convicted Uribe and assessed his punishment at 730 days in a state jail facility

and a $1500 fine. The trial court suspended imposition of the sentence and placed Uribe

on community supervision for 5 years. On September 27, 2012, Uribe filed an

Application for Writ of Habeas Corpus under TEX. CODE CRIM. PRO. ANN. art. 11.072

(West 2005). The trial court denied Uribe’s Application for Writ of Habeas Corpus. We

affirm. In his first issue, Uribe argues that the trial court erred in denying his

Application for Writ of Habeas Corpus because he was not advised by trial counsel of

the immigration consequences of his plea as required by Padilla v. Kentucky, 559 U.S.

356, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010) and that his plea was involuntary

because he received ineffective assistance of counsel. In the second issue, Uribe argues

that the trial court abused its discretion in finding that he was properly admonished

regarding the immigration consequences of his plea.

We review the trial court's denial of habeas relief under an abuse of discretion

standard and will consider the facts in the light most favorable to the court's ruling. Ex

parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006); Doyle v. State, 317 S.W.3d 471,

475 (Tex.App. – Houston [1st Dist.] 2010, pet. ref’d). We afford almost complete

deference to the trial court's determination of historical facts supported by the record,

especially when those factual findings rely upon an evaluation of credibility and

demeanor. Doyle v. State, 317 S.W.3d at 475. We apply the same deference to review the

trial court's application of law to fact questions, if the resolution of those determinations

rests upon an evaluation of credibility and demeanor. Id. However, if the outcome of

those ultimate questions turns upon an application of legal standards, we review the

trial court's determination de novo. Id.

In Padilla, the Court held that defense attorneys must advise non-citizen clients

about the deportation risks of a guilty plea. See Padilla v. Kentucky, 130 S.Ct. 1473, 1483-

1484; Ex Parte De Los Reyes, 392 S.W.3d 675, 677 (Tex. Crim. App. 2013). In Chaidez v.

United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the Court explicitly

Ex parte Uribe Page 2 held that Padilla does not apply retroactively to cases already final on direct review.

The Texas Court of Criminal Appeals declined to give retroactive effect to Padilla under

state habeas law. Ex Parte De Los Reyes, 392 S.W.3d at 679.

In the findings of fact and conclusions of law, the trial court found that the

holding in Padilla does not apply to Uribe’s case because the case was final prior to the

issuance of the Padilla opinion. Uribe argues that his conviction was not final because

he was still on community supervision at the time the Court decided Padilla. Generally

the judgment placing a defendant on community supervision is “final” for the purpose

of appeal from the plea when community supervision is imposed. Ex parte Arjona, No.

09-12-00554-CR, 2013 WL 2151502 *2 (Tex.App. – Beaumont May 15, 2013, no pet.); Nix

v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001). In Arjona, the defendant was on

community supervision at the time Padilla was issued. The court in Aronja found that

the conviction was final before Padilla was handed down because “Arjona’s direct

appeal options were no longer available.” Ex parte Arjona at *2. Uribe did not file a

direct appeal, and his conviction became final before Padilla was handed down. The

trial court did not abuse its discretion in finding that Padilla was not applicable.

The trial court found that Uribe was properly admonished by the court in

accordance with TEX. CODE CRIM. PRO. ANN. art. 26.13 (West Supp. 2012). The trial court

further found that Uribe entered his plea knowingly and voluntarily. The record shows

that Uribe’s trial attorney requested a continuance and noted that “a plea is anticipated

and the defense needs to investigate defendant’s immigration status.” Uribe was

admonished in writing, “If you are not a citizen of the United States of America, this

Ex parte Uribe Page 3 plea may result in your being deported, in your being excluded from admission to this

country, or your being denied naturalization.” Uribe signed a statement that he agreed

to receive the admonishments in writing and that he understood the admonishments

and consequences of his plea. Uribe further signed a waiver stating that he was aware

of his statutory and constitutional rights and that he “voluntarily, knowingly, and

intelligently” waived those rights. The admonishments complied with the

requirements of TEX. CODE CRIM. PRO. ANN. art. 26.13 (West Supp. 2012). Uribe has not

shown that his plea was involuntarily or that he received ineffective assistance of

counsel. We overrule the first and second issues.

We affirm the trial court’s judgment.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed September 5, 2013 Do not publish [CR25]

Ex parte Uribe Page 4