In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-16-00275-CR
VICTOR MANUEL PENA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court Parmer County, Texas Trial Court No. 3306, Honorable Gordon Houston Green, Presiding
May 22, 2018
OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant Victor Manuel Pena pled guilty in 2012, pursuant to a plea agreement,
to the offense of delivery of cocaine, in an amount more than four grams but less than
200 grams.1 He now appeals from the trial court’s order adjudicating him guilty of the
offense, revoking his community supervision, and sentencing him to six years of
incarceration. In his appellate brief, appellant contends the trial court erred by denying
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2015). his motion to set aside his 2012 plea of guilty because his attorney provided him
ineffective assistance by failing to properly advise him of the deportation consequences
of his plea. We affirm the trial court’s judgment.
Background
After appellant, a legal resident with a green card, was indicted for delivery of the
controlled substance, he entered into a plea agreement with the State. Appellant agreed
to waive rights, including his right to a jury trial, in exchange for a recommended sentence
deferring his adjudication of guilt for six years and placing him on community supervision.
After a hearing, the court accepted appellant’s plea of guilty, placed appellant on deferred
adjudication community supervision for the agreed-upon period of six years, and signed
an order of deferred adjudication consistent with the plea agreement. The court certified
that appellant had no right to appeal the plea-bargained case, and that appellant waived
the right of appeal. No notice of appeal was filed.
In 2016, the trial court held a hearing on the State’s motion to adjudicate appellant’s
guilt. The State alleged appellant violated the conditions of his community supervision in
several ways, among others by leaving the county and the State without permission on
two occasions, by failing to report for many months, by committing new criminal offenses,
and by failing to report arrests to his community supervision officer. At the hearing,
represented by new counsel, appellant raised a motion to set aside his plea of guilty. As
grounds for that motion, appellant argued his original counsel never told him he would be
deported as a result of his guilty plea.
2 The trial court heard testimony from appellant and from his original counsel. Under
questioning by appellant’s counsel, his original counsel testified contrary to appellant’s
assertion. She said that before appellant’s plea, she and appellant had a “very detailed
conversation about immigration, deportation, naturalization, and all that comes with a
felony deferred conviction.” The court denied appellant’s motion to set aside his guilty
plea, finding he had not established either that his original counsel’s performance fell
below an objective standard of reasonableness, or that a reasonable probability existed
that the results of the proceeding would have been different but for any ineffectiveness.
After his motion was denied, appellant pled “true” to each of the allegations in the
State’s motion to adjudicate guilt and the court adjudicated him guilty, revoked his
community supervision and sentenced him as noted.
Analysis
In this appeal, appellant argues the trial court erred by denying his motion to set
aside his plea of guilty. He continues to assert his original counsel rendered him
ineffective assistance through her inadequate advice concerning the immigration
consequences of his plea. We agree with the State that appellant’s contention must fail,
but for reasons different than those argued by the State.
In Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999), the court held the
defendant, in his appeal of his adjudication of guilt, could not raise issues concerning his
conviction that could have been raised when his deferred adjudication was first imposed.
The defendant argued that the evidence presented in his original plea proceeding was
insufficient to prove his guilt. Id. The Court of Criminal Appeals stated: “a defendant
3 placed on deferred adjudication community supervision may raise issues relating to the
original plea proceeding, such as evidentiary sufficiency, only in appeals taken when
deferred adjudication community supervision is first imposed.” Id. at 661-62. As we later
held, the holding of the Manuel opinion is not limited to issues of evidentiary insufficiency.
Webb v. State, 20 S.W.3d 834, 836 (Tex. App.—Amarillo 2000, no pet.) (Manuel barred
post-adjudication appeal, following deferral, asserting involuntariness of guilty plea); see
also George E. Dix & John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND
PROCEDURE § 56:86 (3d ed. 2011).
In its 1985 decision in Hill v. Lockhart, the United States Supreme Court held that
“the two-part Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.” 474 U.S. 52, 58 (1985) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). Padilla v. Kentucky applied the Strickland standard
to a claim that the defendant’s lawyer failed to provide needed advice about the
deportation consequences of a plea of guilty. 559 U.S. 356, 366 (2010); see Chaidez v.
United States, 568 U.S. 342 (2013) (describing nature of Padilla holding); Ex parte Torres,
483 S.W.3d 35, 46 (Tex. Crim. App. 2016) (“Padilla requires that counsel give a defendant
accurate legal advice about the ‘truly clear’ consequences of a plea of guilty to an offense
that, as a matter of law, renders him ‘subject to automatic deportation’”). For the prejudice
prong of the Strickland test in guilty-plea challenges, the Court of Criminal Appeals has
adopted the standard stated by the Supreme Court in Hill. Torres, 483 S.W.3d at 47
(citing Hill, 474 U.S. at 60). By that standard, when a defendant enters a guilty plea with
the advice of counsel and challenges the validity of the plea with a claim of ineffectiveness
of counsel, the prejudice inquiry asks “whether there is a reasonable probability that, but
4 for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” 483 S.W.3d at 47 (citations omitted).
Like other instances in which a defendant’s plea is induced by ineffective
assistance of counsel, counsel’s failure to abide by Padilla renders a guilty plea
involuntary if the required prejudice is shown. See Ex parte Aguilar, 537 S.W.3d 122,
129 (Tex. Crim. App. 2017) (incorrect advice under Padilla rendered plea involuntary); Ex
parte Moussazadeh, 361 S.W.3d 684, 688-89 (Tex. Crim. App.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-16-00275-CR
VICTOR MANUEL PENA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court Parmer County, Texas Trial Court No. 3306, Honorable Gordon Houston Green, Presiding
May 22, 2018
OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant Victor Manuel Pena pled guilty in 2012, pursuant to a plea agreement,
to the offense of delivery of cocaine, in an amount more than four grams but less than
200 grams.1 He now appeals from the trial court’s order adjudicating him guilty of the
offense, revoking his community supervision, and sentencing him to six years of
incarceration. In his appellate brief, appellant contends the trial court erred by denying
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2015). his motion to set aside his 2012 plea of guilty because his attorney provided him
ineffective assistance by failing to properly advise him of the deportation consequences
of his plea. We affirm the trial court’s judgment.
Background
After appellant, a legal resident with a green card, was indicted for delivery of the
controlled substance, he entered into a plea agreement with the State. Appellant agreed
to waive rights, including his right to a jury trial, in exchange for a recommended sentence
deferring his adjudication of guilt for six years and placing him on community supervision.
After a hearing, the court accepted appellant’s plea of guilty, placed appellant on deferred
adjudication community supervision for the agreed-upon period of six years, and signed
an order of deferred adjudication consistent with the plea agreement. The court certified
that appellant had no right to appeal the plea-bargained case, and that appellant waived
the right of appeal. No notice of appeal was filed.
In 2016, the trial court held a hearing on the State’s motion to adjudicate appellant’s
guilt. The State alleged appellant violated the conditions of his community supervision in
several ways, among others by leaving the county and the State without permission on
two occasions, by failing to report for many months, by committing new criminal offenses,
and by failing to report arrests to his community supervision officer. At the hearing,
represented by new counsel, appellant raised a motion to set aside his plea of guilty. As
grounds for that motion, appellant argued his original counsel never told him he would be
deported as a result of his guilty plea.
2 The trial court heard testimony from appellant and from his original counsel. Under
questioning by appellant’s counsel, his original counsel testified contrary to appellant’s
assertion. She said that before appellant’s plea, she and appellant had a “very detailed
conversation about immigration, deportation, naturalization, and all that comes with a
felony deferred conviction.” The court denied appellant’s motion to set aside his guilty
plea, finding he had not established either that his original counsel’s performance fell
below an objective standard of reasonableness, or that a reasonable probability existed
that the results of the proceeding would have been different but for any ineffectiveness.
After his motion was denied, appellant pled “true” to each of the allegations in the
State’s motion to adjudicate guilt and the court adjudicated him guilty, revoked his
community supervision and sentenced him as noted.
Analysis
In this appeal, appellant argues the trial court erred by denying his motion to set
aside his plea of guilty. He continues to assert his original counsel rendered him
ineffective assistance through her inadequate advice concerning the immigration
consequences of his plea. We agree with the State that appellant’s contention must fail,
but for reasons different than those argued by the State.
In Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999), the court held the
defendant, in his appeal of his adjudication of guilt, could not raise issues concerning his
conviction that could have been raised when his deferred adjudication was first imposed.
The defendant argued that the evidence presented in his original plea proceeding was
insufficient to prove his guilt. Id. The Court of Criminal Appeals stated: “a defendant
3 placed on deferred adjudication community supervision may raise issues relating to the
original plea proceeding, such as evidentiary sufficiency, only in appeals taken when
deferred adjudication community supervision is first imposed.” Id. at 661-62. As we later
held, the holding of the Manuel opinion is not limited to issues of evidentiary insufficiency.
Webb v. State, 20 S.W.3d 834, 836 (Tex. App.—Amarillo 2000, no pet.) (Manuel barred
post-adjudication appeal, following deferral, asserting involuntariness of guilty plea); see
also George E. Dix & John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND
PROCEDURE § 56:86 (3d ed. 2011).
In its 1985 decision in Hill v. Lockhart, the United States Supreme Court held that
“the two-part Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.” 474 U.S. 52, 58 (1985) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). Padilla v. Kentucky applied the Strickland standard
to a claim that the defendant’s lawyer failed to provide needed advice about the
deportation consequences of a plea of guilty. 559 U.S. 356, 366 (2010); see Chaidez v.
United States, 568 U.S. 342 (2013) (describing nature of Padilla holding); Ex parte Torres,
483 S.W.3d 35, 46 (Tex. Crim. App. 2016) (“Padilla requires that counsel give a defendant
accurate legal advice about the ‘truly clear’ consequences of a plea of guilty to an offense
that, as a matter of law, renders him ‘subject to automatic deportation’”). For the prejudice
prong of the Strickland test in guilty-plea challenges, the Court of Criminal Appeals has
adopted the standard stated by the Supreme Court in Hill. Torres, 483 S.W.3d at 47
(citing Hill, 474 U.S. at 60). By that standard, when a defendant enters a guilty plea with
the advice of counsel and challenges the validity of the plea with a claim of ineffectiveness
of counsel, the prejudice inquiry asks “whether there is a reasonable probability that, but
4 for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” 483 S.W.3d at 47 (citations omitted).
Like other instances in which a defendant’s plea is induced by ineffective
assistance of counsel, counsel’s failure to abide by Padilla renders a guilty plea
involuntary if the required prejudice is shown. See Ex parte Aguilar, 537 S.W.3d 122,
129 (Tex. Crim. App. 2017) (incorrect advice under Padilla rendered plea involuntary); Ex
parte Moussazadeh, 361 S.W.3d 684, 688-89 (Tex. Crim. App. 2012) (“[c]ounsel’s advice
can provide assistance so ineffective that it renders a guilty plea involuntary”).
The involuntariness of a guilty plea, however, does not alone make the judgment
of conviction void. Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001) (citing
Custis v. United States, 511 U.S. 485, 496 (1994)); Davila v. State, No. 07-14-00408-CR,
2016 Tex. App. LEXIS 12414, at *6 (Tex. App.—Amarillo Nov. 17, 2016, pet. ref’d) (mem.
op., not designated for publication) (“‘involuntary plea’ preceding deferred adjudication
community supervision does not render the later judgment of conviction void”); Cordero
v. State, No. 12-12-00365-CR, 2013 Tex. App. LEXIS 9540, at *2 (Tex. App.—Tyler July
31, 2013, pet. ref’d) (mem. op., not designated for publication) (“[e]ven if meritorious, a
plea of ineffective assistance of counsel does not make a conviction void”). For that
reason, the “void judgment” exception to Manuel does not apply here. See Nix v. State,
65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (applying void judgment exception in deferred
adjudication context, but describing “very rare situations” in which judgment of conviction
is void).
5 As noted, appellant pled guilty and received deferred adjudication community
supervision. All of the events of which appellant now complains occurred before or during
the original plea hearing. He may not raise, in his appeal of the adjudication of his guilt,
the issue of his trial counsel’s compliance with her obligations under Padilla v. Kentucky.
Ex parte Aguilar, 537 S.W.3d at 129; Manuel, 994 S.W.2d at 661-62; Webb, 20 S.W.3d
at 836.
We overrule appellant’s single issue and affirm the trial court’s judgment.
James T. Campbell Justice
Publish.