Ex Parte Sergio Martin Pineda

• Court: Court of Appeals of Texas
• Decided: February 10, 2009
• Docket: 14-08-00678-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed February 10, 2009

Affirmed and Memorandum Opinion filed February 10, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-08-00678-CR

EX PARTE SERGIO MARTIN PINEDA, Appellant

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 832291-A

M E M O R A N D U M   O P I N I O N

Challenging the validity of his conviction for possession of a controlled substance, rendered on a guilty plea for which deferred adjudication community supervision was imposed, appellant, Sergio Martin Pineda, sought a writ of habeas corpus under Texas Code of Criminal Procedure article 11.072.^[1]  The trial court denied relief.  In a single issue, appellant contends he received ineffective assistance of counsel in relation to the guilty plea which resulted in his conviction.  Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Factual and Procedural Background

On January 1, 2000, police stopped appellant for speeding.  According to the police report, after appellant exited his vehicle, he repeatedly put his hands in his pockets despite being asked to stop, talked constantly, and acted nervous.  Because of this behavior, a back-up officer patted appellant down for weapons.  While patting appellant down, the officer reached into appellant=s front right pants pocket and felt a small plastic bag containing a soft substance.  The officer, who had previously worked as an undercover narcotics officer, believed from his training that the bag contained narcotics.  When he pulled the bag from appellant=s pocket, the officer saw it contained a white powder.  The powder field-tested positive for cocaine.  Appellant was charged with possession of less than one gram of a controlled substance.

On January 14, 2000, appellant pleaded guilty to possession of a controlled substance, cocaine, weighing less than one gram.  The court deferred adjudication of guilt, placed appellant on three years= community supervision, and imposed a $500.00 fine.  The State subsequently filed three motions to adjudicate guilt, and appellant=s deferred adjudication community supervision unsuccessfully terminated on January 2, 2008.

On March 3, 2008, appellant filed an application for writ of habeas corpus.  He challenged the validity of his conviction on the ground of ineffective assistance of counsel.  He alleged counsel was ineffective because counsel did not inquire about appellant=s immigration status and did not inform appellant about the contents of the offense report.  After hearing argument, the trial court denied the application.

Discussion

In a single issue, appellant contends he received ineffective assistance of counsel because his attorney failed to properly investigate appellant=s background and the events surrounding the offense.  Appellant contends that, because of counsel=s ineffectiveness, his plea was not voluntary.

We determine the voluntariness of a plea by looking at the entire record.  See  Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).  When a defendant enters his plea on the advice of counsel and subsequently challenges the voluntariness of his plea alleging ineffective assistance of counsel, the voluntariness of the plea depends on (1) whether counsel=s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel=s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.  Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52 (1985); Strickland v. Washington, 466 U.S. 668 (1984)).

In evaluating effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Id.  There is a strong presumption counsel=s conduct fell within the wide range of reasonable professional assistance.  Id.  Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.  Id.

Immigration status.  Appellant first argues counsel was ineffective for not inquiring about appellant=s immigration status.  In his declaration, appellant stated his attorney never asked about appellant=s nationality and assumed appellant was a United States citizen when, in fact, appellant was a permanent resident.  Appellant continued, AIf I knew that by agreeing and signeing [sic] the papers that [my attorney] asked me to sign, I would later be in a federal immagration [sic] detention center, I would hav [sic] asked the lawyer to take a diffrent [sic] approach.@  In his affidavit, appellant=s counsel attested, AI was not aware that [appellant] was not a United States citizen when he waived indictment and pled guilty . . . . If I had been aware that [appellant] was not a United States citizen, I would not have recommended a plea of guilty in this matter.@^[2]

The record, however, also shows, in conjunction with taking appellant=s plea, the trial court admonished appellant pursuant to Texas Code of Criminal Procedure article 26.13.  Among other paragraphs, appellant initialed paragraphs containing (1) an admonishment about possible deportation, (2) an acknowledgment appellant understood the admonishments, and (3) an acknowledgment appellant understood the consequences of his plea.

Generally, courts consider a guilty plea voluntary if the defendant was fully aware of the direct consequences of the plea.  State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999). Lack of knowledge about a collateral consequence does not render the plea involuntary.  Id.  That a guilty plea may result in deportation is generally considered a collateral consequence.  Id. at 888B89.

Counsel was under no duty to inform appellant of the collateral consequences of his plea.  Morrow, 952 S.W.2d at 536.  Thus, appellant has not proved by a preponderance of the evidence his counsel=s failure to inform him regarding deportation was A>outside the wide range of competence demanded of attorneys in criminal cases.=@  See id. at 537 (quoting Hill v. Lockhart, 474 U.S. at 56).  Therefore, trial counsel=s failure to advise appellant he would be subject to deportation does not rise to the level of constitutionally ineffective assistance of counsel.  See id.; Perez v. State, 31 S.W.3d 365, 368 (Tex. App.CSan Antonio 2000, no pet.).

Appellant distinguishes his case from Perez on the ground that, in appellant=s case, counsel attested he would not have advised appellant to plead guilty had he known appellant was not a United States citizen.  In support, he cites Butler v. State, 716 S.W.2d 48, 55B56 (Tex. Crim. App. 1986).  Butler, however, involved an attorney=s failure to investigate the facts of the charged robbery; and, at the hearing on the motion for new trial, two of the witnesses counsel failed to interview testified the defendant was not the man they saw leaving the scene immediately after the robbery and identified another man, by name, as the robber.  Id. at 56.  Butler is inapposite.

Investigation of facts surrounding the traffic offense.  Appellant also argues counsel was ineffective for failing to investigate the facts of the Aoffense,@ by which he apparently means the traffic offense leading to his arrest.  Appellant asserts counsel=s affidavit Aestablishes that no investigation of any type was done in [appellant=s] case.@  He further represents that, in his own declaration, he stated he was not speeding.

Counsel=s affidavit refers only to counsel=s lack of knowledge of appellant=s immigration status.  There is no reference to investigating or failing to investigate the facts of appellant=s arrest for the traffic offense.  Appellant=s declaration contains the following:  AIn the morning of January 1, 2000 I was driveing [sic] on F.M [sic] 529-HWY going west bound a [sic] 35 to 40 mph on a 45 mph zone.@

Appellant contends counsel was ineffective for not investigating the following:  (1) whether there was a posted speed limit, (2) what the posted speed limit was, and (3) what exactly the officer felt during the pat down.  As stated above, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 813.  Even were we to assume appellant could establish deficient performance in relation to investigation of the traffic offense, he has failed to establish prejudice because he has presented no more than speculation regarding how such an investigation would have benefitted the defense.  See  Miranda v. State, 993 S.W.2d 323, 328 (Tex. App.CAustin 1999, no pet.).

Appellant has not established ineffective assistance of counsel in relation to either counsel=s investigation of appellant=s immigration status or facts surrounding the traffic offense which led to discovery of the cocaine.  We overrule appellant=s sole issue.

The trial court=s order is affirmed.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Article 11.072 Aestablishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.@  Tex. Code Crim. Proc. Ann. art. 11.072, ' 1 (Vernon 2005).  As relevant to appellant, A[a]t the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of . . . the conviction for which or order in which community supervision was imposed . . . .@  Id. ' (2)(b)(1).

^[2]  These statements relate to the second prong of the Hill/Strickland/Morrow test.  See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).  Whether counsel was obligated to inform appellant of the consequence of deportation relates to the first prong.  See id.