Ex Parte Jorge Luis Morales

Opinion

Opinion issued June 25, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00897-CR ——————————— EX PARTE JORGE LUIS MORALES

On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1145993A

MEMORANDUM OPINION

Appellant, Jorge Luis Morales, challenges the trial court’s order denying

him the relief that he requested in his application for a writ of habeas corpus.1 In

1 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (Vernon 2005) (providing for appeal in felony or misdemeanor case in which applicant seeks relief from order or judgment of conviction ordering community supervision). his sole issue, appellant contends that the trial court erred in denying his

application in which he asserted that his counsel failed to discuss with him the

clear immigration consequences of his plea of guilty to the offense of possession of

a controlled substance. 2

We affirm.

Background

On December 18, 2007, appellant, a citizen of Guatemala who was admitted

to the United States as a legal permanent resident in 2004, pleaded guilty, and,

pursuant to his plea agreement with the State, the trial court deferred adjudication

of his guilt.

On April 29, 2011, the United States Department of Homeland Security

instituted proceedings to remove appellant from the country based on his guilty

plea. Appellant subsequently filed his application in the district court, asserting that

had he been advised by his trial counsel that his guilty plea would result in his

deportation, he “would have insisted on going to trial and presenting a vigorous

defense.”

Appellant attached to his application the affidavit of his attorney, who

testified in pertinent part as follows:

It was my practice at the time to advise all of my noncitizen clients of the possibility of serious immigration consequences from pleading

2 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)–(b) (Vernon 2010). 2 guilty, as indicated by the required statutory admonishments and plea papers, and I reviewed the admonishment with Morales.

When discussing the Deferred Adjudication of Guilt option with community supervision, I did explain there could be immigration consequences and so did Judge Velasquez during the admonishment phase of the plea, but I did not tell Morales that he would be deported.

After a hearing, the trial court denied appellant’s application.

Ineffective Assistance of Counsel

In his sole issue on appeal, Morales argues that he received ineffective

assistance in regard to his plea because his trial counsel did not comply with

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010). He asserts that Padilla

applies retroactively to his case.

In Padilla, the United States Supreme Court held that counsel’s “advice

regarding deportation is not categorically removed from the ambit of the Sixth

Amendment right to counsel” and, therefore, counsel for a criminal defendant is

required to provide advice regarding the immigration consequences following a

guilty plea. 559 U.S. at ___, 130 S. Ct. at 1482. However, the Court has since

explained that because Padilla announced a new rule of criminal procedure it does

not apply retroactively. Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103,

1113 (2013); see also Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075

(1989) (holding that with two exceptions, “new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the

3 new rules are announced”). The Texas Court of Criminal Appeals, recognizing the

holding in Chaidez, has likewise decided that Padilla does not apply retroactively

under the Texas Constitution. Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.

Crim. App. 2013) (explicitly rejecting the opportunity to accord retroactive effect

to Padilla as matter of state habeas law).

Here, appellant pleaded guilty in 2007, three years before Padilla was

decided. He does not argue that his counsel’s performance was deficient under

pre-Padilla law. Accordingly, we hold that the trial court did not err in denying his

application for a writ of habeas corpus.

We overrule appellant’s sole issue.

Conclusion

We affirm the order of the trial court.

Terry Jennings Justice

Panel consists of Justices Jennings, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).