Ex Parte: Jesus Nieves

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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No. 08-11-00189-CR
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Appeal from
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EX PARTE: JESUS NIEVES 41st District Court
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of El Paso County, Texas
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(TC # 20030D04182-41-1)
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OPINION

Jesus Nieves appeals the trial court’s denial of the relief requested in his application for a

writ of habeas corpus filed pursuant to Article 11.072 of the Code of Criminal Procedure. See

TEX.CODE CRIM.PROC.ANN. art. 11.072 (West 2005). For the reasons that follow, we affirm.

FACTUAL SUMMARY

In 2004, Nieves waived his right to a jury trial and entered a negotiated plea of guilty to

possession of child pornography. The trial court found the evidence substantiated a finding of

guilt, but it deferred entering an adjudication of guilt and placed Nieves on deferred adjudication

community supervision for ten years. In 2010, Nieves filed an application for writ of habeas

corpus based on allegations of ineffective assistance of counsel. More specifically, Nieves

alleged that his attorney rendered deficient performance because he failed to pursue a motion to

suppress evidence seized as the result of an illegal encounter with the police and a search
conducted pursuant to a warrant. Nieves argued that his guilty plea was involuntary because trial

counsel did not advise him that he had failed to obtain a ruling on a motion to suppress filed in

the case. Further, Nieves alleged that his attorney’s performance was deficient because he failed

to advise Nieves that his guilty plea would subject him to deportation or removal from the United

States. The trial court did not conduct a hearing and denied relief based on its review of the

habeas application and the documents in the court’s file. The court entered written findings of

fact and conclusions of law.

STANDARD OF REVIEW

In a post-conviction writ of habeas corpus proceeding, the applicant bears the burden of

proving, by a preponderance of the evidence, the facts that would entitle him to relief. Ex parte

Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App. 2002). We apply an abuse of discretion

standard when reviewing a trial court’s decision to grant or deny habeas relief. Ex parte

Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App. 2006).

The trial court is the sole judge of the credibility of the witnesses and the weight to be

given their testimony. See Ex parte Peterson, 117 S.W.3d 804, 819 n.68 (Tex.Crim.App. 2003),

overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007). As the

fact finder, the trial court may accept some, all, or none of a witness’s testimony. See id. We

afford almost total deference to a trial court’s determination of the historical facts that the record

supports especially when such findings of fact are based on an evaluation of credibility and

demeanor. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex.Crim.App. 2011), citing Guzman v.

State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We afford that same level of deference to a

trial court’s ruling on application of law to fact questions, also known as mixed questions of law

and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and

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demeanor. Ex parte Peterson, 117 S.W.3d at 819. We review de novo those mixed questions of

law and fact that do not depend upon evaluation of credibility and demeanor. Id.

FAILURE TO PURSUE SUPPRESSION OF EVIDENCE

Nieves raises seven issues related to his contention that the trial court abused its

discretion by denying habeas relief based on his claim that trial counsel was ineffective because

he failed to pursue a motion to suppress evidence. In Issues One through Three, Nieves asserts

that the record does not support the trial court’s findings that: (1) trial counsel was aware of the

grounds for suppressing the evidence; (2) Nieves’s assertion that his attorney did not discuss the

suppression remedy and how it might apply to the facts of his case was not credible; (3) Nieves’s

assertion that he would have not pled guilty had his attorney discussed the suppression remedy

and how it might apply to the facts of his case was not credible; and (4) Nieves, by foregoing his

suppression motion, was able to enter into a plea agreement for deferred-adjudication in order to

avoid going to trial where he risked a possible life sentence. In Issues Five through Eight,

Nieves challenges the trial court’s determination that he was not denied effective assistance

where counsel did not pursue suppression of the evidence on the theories that Nieves was

unlawfully detained and law enforcement officers engaged in an unlawful pre-warrant search.

Ineffective Assistance of Counsel

To be entitled to habeas relief on the basis of ineffective assistance of counsel, a

petitioner must prove by a preponderance of the evidence that: (1) counsel’s performance was

deficient; and (2) he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To establish deficient performance, the petitioner

must show that counsel’s performance fell below an objective standard of reasonableness based

on prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. We

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presume that counsel’s conduct fell within the wide range of reasonable professional assistance.

Id. at 689, 104 S.Ct. at 2065. To establish prejudice, the petitioner must show that there is a

reasonable probability that, but for counsel’s deficient performance, the result of the proceeding

would have been different. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010).

Nieves alleges counsel failed to secure a ruling on suppression issues. To satisfy

Strickland, an appellant alleging his trial counsel was ineffective for failing to file a motion to

suppress or obtain a ruling on a suppression issue must show by a preponderance of the evidence

that the motion would have been granted and it would have changed the outcome of the case.

See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). Additionally, Nieves was

required to prove that he would not have pled guilty and would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Ex parte Pool,

738 S.W.2d 285, 286 (Tex.Crim.App. 1987).

Counsel Aware of the Grounds for Suppression

We begin by addressing Nieves’s issues related to the findings of fact. In Issue One, he

challenges the trial court’s seventh finding of fact, which states:

7. Trial counsel’s motions to suppress likewise indicate that he was likewise
aware of the grounds for suppressing the evidence in this case.

Nieves’s trial counsel filed a written motion to suppress “all evidence seized, including

statements made, on or about September 17, 2003, from [Nieves’s] residence.” Thus, Nieves’s

trial counsel actually sought to suppress the same evidence that Nieves is arguing should be

suppressed. Further, he based his motion to suppress on the same grounds as those relied on by

Nieves in his habeas application. Trial counsel based the suppression motion on the Fourth

Amendment, Article I, Section 9 of the Texas Constitution as well as Article 38.23 of the Code

of Criminal Procedure, indicating that trial counsel in fact recognized that the evidence could be

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suppressed had it been obtained, directly or indirectly, as a result of conduct that violated these

constitutional provisions. Trial counsel also argued that the evidence should be suppressed

because “the warrant issued by the judicial magistrate was based on an affidavit which contained

information unlawfully and illegally obtained by law enforcement officers.” We conclude that

the record supports the trial court’s determination that trial counsel was aware of the grounds for

suppressing the evidence. Issue One is overruled.

Credibility Determination

In Issue Two, Nieves challenges two findings of fact addressing his credibility.

Specifically, findings of fact ten and eleven state:

10. Nieves’ assertion that his attorney did not discuss the suppression remedy and
how it might apply to the facts of his case is not credible.

11. Nieves’ assertion that he would have not plead guilty had his attorney
discussed the suppression remedy and how it might apply to the facts of his case
is not credible.

Even though Nieves’s affidavit was not refuted, the trial court was not required to believe it. See

State v. Ross, 32 S.W.3d 853, 857 (Tex.Crim.App. 2000)(trial court, as fact finder, is not

compelled to believe uncontroverted testimony); Ex parte Mowbray, 943 S.W.2d 461, 465

(Tex.Crim.App 1996)(in habeas proceeding, the trial judge determines the credibility of the

witnesses). In State v. Sheppard, 271 S.W.3d 281, 286 (Tex.Crim.App. 2008), the Court of

Criminal Appeals stated that when a trial court makes an explicit credibility finding, the

reviewing court is required to give deference to that credibility determination. Under these

standards, an appellate court does not have much leeway to disregard the trial court’s findings

within the Article 11.072 context. Ex parte Garcia, 353 S.W.3d at 788. This level of deference

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is required even when no witnesses testify and all of the evidence is submitted in written

affidavits. Ex parte Wheeler, 203 S.W.3d at 325-26.

Here, the trial court did not believe Nieves’s claim that he had not discussed the

suppression remedy available with his attorney as well as its application to his case. We are

required to defer to this express credibility determination. We overrule Issue Two.

Avoidance of a Possible Life Sentence

In Issue Three, Nieves challenges the trial court’s twelfth finding of fact, which reads:

12. By foregoing his suppression motions, Nieves was able to enter into a plea
agreement for deferred-adjudication in order to avoid going to trial where he
risked a possible life sentence. [Emphasis added].

Nieves was charged with one count of possession of child pornography, a third degree felony.

TEX.PENAL CODE ANN. § 43.26(a), (d)(West Supp. 2012). The maximum sentence for a third

degree felony is imprisonment for ten years. TEX.PEN.CODE ANN. § 12.34(a)(West 2011). Thus,

Nieves did not face a possible life sentence, but a maximum of ten years for the charged offense.

The trial court correctly found that Nieves was able to enter into a plea agreement for deferred

adjudication by foregoing his motion to suppress, but the court’s finding that he avoided a

possible life sentence by pleading guilty is erroneous. We therefore will not defer to this part of

the fact finding in reviewing the remaining issues related to Nieves’s claims of ineffective

assistance of counsel. See Ex parte Reed, 271 S.W.3d 698, 727-28 (Tex.Crim.App. 2008)

(observing that the Court of Criminal Appeals, as the reviewing court in a habeas corpus

proceeding, could defer to phrases in a particular fact-finding supported by the record, and reject

those that were not).

The State argues that the erroneous portion of the fact-finding is harmless because it did

not contribute significantly to the trial court’s ultimate conclusion that Nieves failed to prove that

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he was denied the effective assistance of counsel. We agree. As will be discussed in more detail

in our review of Issues Five through Eight, Nieves failed to prove the prejudice component of his

ineffective assistance of counsel claim because he did not prove that the motion to suppress

would have been granted, or that he would not have pled guilty and would have insisted on going

to trial. We overrule Issue Three.

Trial Court’s Failure to Address Ineffective Assistance Claim

In Issue Five, Nieves argues that the trial court failed to address his ineffective assistance

of counsel claim based on counsel’s alleged failure to pursue suppression of the confession and

child pornography seized from Nieves’s bedroom on the ground that the evidence was obtained

as the direct or indirect result of an illegal detention. The record and the trial court’s findings

contradict Nieves’s claim. Counsel specifically sought to suppress Nieves’s statement and

evidence seized from his residence pursuant to a search warrant because the warrant “was based

on an affidavit which contained information unlawfully and illegally obtained by law

enforcement officers.” The trial court found that Nieves’s counsel filed three motions to

suppress and those motions indicate counsel was aware of the grounds for suppression. In effect,

the trial court found that counsel’s performance was not deficient because he moved to suppress

the evidence on the same grounds asserted by Nieves in his writ application. Because the trial

court did not fail to address Nieves’s ineffective assistance of counsel claim, we overrule Issue

Five.

Illegal Detention

In Issues Six and Seven, Nieves contends that the trial court erred by concluding the

motion to suppress would not have been granted and he would not have been entitled to an

Article 38.23 jury instruction. This part of Nieves’s suppression argument is based on his

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assertion that he was illegally detained by a police officer and required to provide his driver’s

license.

The evidence showed that an El Paso Police Officer, Elizabeth Puga, attended her

daughter’s dance recital. Puga observed Nieves recording the entire dance performance on a

video camera and she recognized him as the same man who had attended and recorded the entire

dance recital the previous year. After the show, Puga followed Nieves to the lobby and saw him

grab some newspaper from the information desk and wrap it around his video camera.

Puga approached Nieves outside the lobby and asked him whether he had any children or

family performing in the recital. Nieves said he did not but explained that he had been recording

the performance for a friend whose daughter was in the show. Nieves did not know the name of

his friend’s daughter or what group she had performed with during the recital. Puga introduced

herself but did not identify herself as a police officer. Nieves told her that his name was Carlos

Hernandez. Puga continued to make casual conversation with Nieves, but he became

increasingly nervous and finally asked her, “Is that it?” before walking away. She hid behind

some cars and watched Nieves walk into the public restrooms at the end of the parking lot.

When Nieves walked out, he still appeared nervous and looked all around to see whether anyone

was watching him.

Puga saw another off-duty officer in the parking lot and she asked him to assist her in

identifying Nieves. She quickly explained to Officer Mendoza her encounter with Nieves in the

lobby. Puga then approached Nieves’s car, pulled out her badge, and knocked on the driver’s

side window. After identifying herself, Puga asked Nieves for his I.D. and explained why she

needed to see it. Nieves contradicted Puga’s account, stating in his writ affidavit that Puga and

Mendoza ordered him to exit his vehicle and produce his driver’s license. After determining

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Nieves did not have any warrants, Puga and Mendoza continued talking to Nieves. Nieves

explained that he was just videotaping because he wanted to and it was not against the law. Puga

told Nieves that she had recognized him from the previous year’s dance recital and explained to

him that she found it odd he had attended these recitals when he did not have any connection to

them. Nieves acknowledged his presence at the previous year’s performance and continued to

reiterate that he had not violated any laws. He also said that videotaping and taking photographs

was just something he liked to do. Puga subsequently forwarded information about the encounter

with Nieves to another police officer.

Officer Mendoza spoke with Officer Parra from the Sex Offenders Unit and told him

about the incident with Nieves. Parra determined that Nieves was employed as a custodian at

Hillcrest Middle School and notified the police officer on duty at the school about the officers’

encounter with Nieves at the dance recital. Parra and Officer Arias went to the school and spoke

with Nieves about his videotaping the children. Consistent with what he had told Puga and

Mendoza, Nieves responded that he simply liked to record different events and he was not doing

anything wrong. He admitted that he had had no reason for being at the dance performance. The

officers asked Nieves for consent to view the recording to alleviate their concern he had

videotaped the children for an inappropriate purpose, but Nieves told them he had already erased

it.

Because the interview raised the officers’ suspicions, they subsequently went to Nieves’s

residence where his mother answered the door. Nieves and his mother lived together in the

home. Nieves stated in his writ affidavit that he paid the rent for the home and allowed his

ninety-three-year-old mother to live with him because of her age. The officers told Ms. Nieves

that her son was being investigated because of possible inappropriate videotaping of the dance

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recital and she signed a written consent to search her home. Ms. Nieves informed the officers

that she was used to finding nude photos of women lying around Nieves’s room and she would

throw them away and get upset at her son. The door to Nieves’s bedroom was open and she

allowed the officers to enter. Parra asked who owned the computer on the desk and Ms. Nieves

responded that Nieves had purchased it with her social security money and without her

permission. However, this evidence is disputed because Nieves stated in his writ affidavit that

he had purchased the computer with his own money. Officer Parra asked Ms. Nieves for

permission to look inside the computer for any suspicious photographs. Ms. Nieves gave her

permission and Parra pushed a key on the keyboard to awaken the computer from sleep mode.

Parra opened a folder titled “pre-kinder photos” and saw a photo of a naked three-year-old girl

lying on her back with her legs spread open. The officers immediately stopped looking inside

the computer and contacted their supervisor, Sgt. Graves, regarding the photo they had found.

Sgt. Graves advised them to stop searching until the detective assigned to the case obtained a

warrant. That same day, a search warrant for the home was obtained and executed. The search

warrant affidavit included a description of Puga’s initial encounter with Nieves at the dance

recital. Nieves voluntarily drove to the police station in his own car and spoke with the officers

while the home was being searched. The officers seized numerous items of child pornography

including magazines, VHS tapes, and photographic images.

Not all encounters between the police and citizens implicate the Fourth Amendment’s

protection against unreasonable seizures. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382,

115 L.Ed.2d 389 (1991); State v. Woodard, 341 S.W.3d 404, 411 (Tex.Crim.App. 2011); State v.

Garcia-Cantu, 253 S.W.3d 236, 238 (Tex.Crim.App. 2008). Unlike investigative detentions and

arrests, which are seizures for Fourth Amendment purposes, an encounter is a consensual

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interaction that the citizen may terminate at any time. Woodard, 341 S.W.3d at 411; Johnson v.

State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). In an encounter, a police officer may

approach an individual in a public place, ask him whether he is willing to answer questions, and

pose questions to the person, if he is willing to listen. State v. Perez, 85 S.W.3d 817, 819

(Tex.Crim.App. 2002). An encounter does not trigger the protection of the Fourth Amendment

so long as a reasonable person would feel free to disregard the police and go about his business.

See Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997); Gurrola v. State, 877 S.W.2d

300, 302-03 (Tex.Crim.App. 1994).

A detention occurs when a person yields to an officer’s show of authority or when a

reasonable person would not feel free to decline the officer’s requests or otherwise terminate the

encounter. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389

(1991); California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690

(1991); State v. Velasquez, 994 S.W.2d 676, 678-79 (Tex.Crim.App. 1999); Johnson v. State,

912 S.W.2d 227, 235 (Tex.Crim.App. 1995). A detention occurs when a person in a parked car

complies with a police order to roll down the window, open the door, or get out of the car,

Ebarb v. State, 598 S.W.2d 842, 850 (Tex.Crim.App. [Panel Op.] 1979), but a detention does not

occur if an officer merely approaches a parked vehicle and knocks on the window. Merideth v.

State, 603 S.W.2d 872, 873 (Tex.Crim.App. [Panel Op.] 1980).

Officer Puga’s initial conversation with Nieves in the lobby was a mere encounter. With

regard to the subsequent contact in the parking lot, Puga approached Nieves’s vehicle, showed

him her badge and knocked on the window, but there is nothing in her report to indicate she

ordered him to roll down the window or open the door. Based on Puga’s description of the

events, the second conversation with Nieves was also a consensual encounter and the trial court

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did not err by concluding that the motion to suppress would not have been granted. Nieves’s

description, if believed, showed an investigative detention. The trial court did not make any

specific findings to indicate whether the court concluded this was a mere encounter or an

investigative detention. Even if we assume the second encounter amounted to an investigative

detention, it is supported by a reasonable suspicion. An investigative detention requires an

officer to have a reasonable suspicion to believe that an individual is involved in criminal

activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). The purpose of an

investigative detention is to establish a person’s identity or to maintain the status quo, while an

officer obtains more information. Comer v. State, 754 S.W.2d 656, 657 (Tex.Crim.App. 1986).

The reasonableness of a temporary detention must be examined in terms of the totality of the

circumstances and will be justified when the detaining officer has specific articulable facts,

which, taken together with rational inferences from those facts, lead him to conclude that the

person detained actually is, has been, or soon will be engaged in criminal activity. Id.

The evidence showed that Nieves attended the dance recital alone and recorded the entire

event as he had the previous year. After the show, Puga observed Nieves wrap his camera in a

newspaper as if to hide it and he became nervous when she engaged him in casual conversation

and questioned him about why he was recording the dance recital. Nieves initially claimed that

he was recording the dance recital for a friend but did not know the name of his friend’s daughter

or the part of the show in which she was performing. Nieves appeared nervous even after he

exited the restrooms and he looked around to see whether Puga was watching him. Under the

circumstances, Puga had a reasonable suspicion to believe Nieves was involved in criminal

activity and her request for Nieves to produce his driver’s license was reasonable. The trial court

did not abuse its discretion by concluding that Nieves’s motion to suppress would not have been

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granted and he would not have been entitled to an Article 38.23 jury instruction had he taken his

case to trial. Therefore, Nieves failed to establish the prejudice prong of Strickland. Issues Six

and Seven are overruled.

Third-Party Consent to Search

In Issue Eight, Nieves argues that the trial court erred by concluding that his motion to

suppress would not have been granted on the ground that the warrant is based on evidence

illegally obtained by the officer’s warrantless search of his computer. We understand Nieves to

argue that his mother had authority to consent to a search of the premises but she did not have

authority to consent to a search of his room or the computer.

Consent searches are an established exception to the warrant and probable cause

requirements of the Fourth Amendment. Balentine v. State, 71 S.W.3d at 772, citing Schneckloth

v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A third party may properly

consent to a search when he has control over and authority to use the premises being searched.

United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974);

Balentine, 71 S.W.3d at 772. The consent of one who possesses common authority over

premises or effects is valid as against an absent, non-consenting person with whom that authority

is shared. Matlock, 415 U.S. at 170, 94 S.Ct. at 993.

A party’s legal property interest does not determine authority to consent. Welch v. State,

93 S.W.3d 50, 53 (Tex.Crim.App. 2002). Authority to consent is instead derived from the

mutual use of the property. Id. The Supreme Court explained in Matlock that it is reasonable to

recognize that any of the co-inhabitants has the right to permit the inspection in his own right and

that the others have assumed the risk that one of their number might permit the common area to

be searched. Matlock, 415 U.S. at 171 n.7, 94 S.Ct. at 993. Therefore, the relevant inquiry is not

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which party has a superior interest in the property, but whether the party giving consent has joint

access to and control of the property for most purposes. Welch, 93 S.W.3d at 53. In determining

whether a third party may give consent to a search, we examine whether the third party had the

authority to use the premises. Balentine, 71 S.W.3d at 772.

Both Nieves and his mother lived at the house. Nieves stated in his writ affidavit that:

“My mother did not have authority to give these officers the right to search my bedroom . . . .”

Nieves did not state any facts which support this legal conclusion. There is nothing in his

statement to indicate that he restricted his mother’s access to his room and his effects contained

within that room, including the computer. The officers’ reports reflect that the door to the room

was open and his mother gave them permission to enter. Further, the computer was booted up

and it was not password-protected even though Nieves was not present. Based on the these facts,

the record supports a conclusion that Ms. Nieves had common authority to consent to a search of

the home, including Appellant’s room and the effects contained in that room. The record

supports the trial court’s conclusion that the motion to suppress would not have been granted.

We overrule Issue Eight.

VOLUNTARINESS OF THE GUILTY PLEA

Nieves raises three issues related to the voluntariness of his guilty plea.

Failure to Advise -- Suppression Issues

In Issue Nine, he contends that the trial court erred in failing to address his claim that his

guilty plea was not knowing and voluntary because trial counsel failed to advise him that he was

“entitled to a ruling on all suppression issues presented before he pled guilty to the indicted

charge.” The State responds that Nieves failed to raise this claim in his writ application.

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 The primary focus of Nieves’s writ application is trial counsel’s alleged failure to seek

suppression of the evidence on the grounds already addressed in Issues Five through Eight. He

also raised one ground in writ application regarding trial counsel’s failure to advise him “of the

necessity that he secure a ruling on all suppression issues before entering a guilty plea to the

indicted charged.” He did not include any allegation in his writ application that trial counsel’s

performance was deficient because he failed to advise Nieves he was “entitled to a ruling on all

suppression issues.” The trial court cannot be faulted for not addressing an issue Nieves did not

raise in his writ application. See TEX.R.APP.P. 33.1. Issue Nine is overruled.

Failure to Advise -- Immigration Consequences

In Issue Four, Nieves challenges finding of fact number 13 where the trial court found

that:

13. Nieves was admonished in accordance with article 26.13 of the Code of
Criminal Procedure and knew that if he pled guilty or were convicted of
possession of child pornography, he would face removal from the United States
because he was not a U.S. Citizen.

Article 26.13 of the Texas Code of Criminal Procedure requires that prior to accepting a guilty

plea, the trial court below must admonish the defendant of the consequences of his plea.

TEX.CODE CRIM.PROC.ANN. art. 26.13(a)(West Supp. 2012). The admonitions can be provided

either orally or in writing. TEX.CODE CRIM.PROC.ANN. art. 26.13(d). Under Article 26.13(a)(4),

the court must admonish a defendant of: “the fact that if the defendant is not a citizen of the

United States of America, a plea of guilty or nolo contendere for the offense charged may result

in deportation, the exclusion from admission to this country, or the denial of naturalization under

federal law.” TEX.CODE CRIM.PROC.ANN. art. 26.13(a)(4). The written admonishments included

the following statement: “I further understand that if I am not a citizen of the United States of

America a plea of guilty or nolo contendere to this offense in this cause may result in my being

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deported, excluded from further admission into the United States, or denied naturalization under

Federal law.” Nieves placed his signature at the conclusion of the written admonishments.

Further, the trial court advised Nieves orally during the guilty plea that: “If you are not a citizen

of the United States, your plea of guilty may result in your deportation, your exclusion from

admission to the United States or denial of naturalization under Federal law.” Nieves told the

trial court that he understood. The record supports the trial court’s finding that Nieves was

admonished in accordance with Article 26.13 and he understood the consequences of pleading

guilty. We overrule Issue Four.

Counsel’s Failure to Advise Nieves

In his final issue, Nieves complains that the trial court abused its discretion by finding

that trial counsel did not render ineffective assistance of counsel on the ground he failed to

advise Nieves of the immigration consequences of a guilty plea. He cites Padilla v. Kentucky,

559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in support of this argument.

In Padilla, the Supreme Court held that the Sixth Amendment requires an attorney for a

criminal defendant to advise his client of the risk of “automatic” deportation as a consequence of

a guilty plea. Padilla, 559 U.S. at ---, 130 S.Ct. at 1483. Since Padilla announced a new rule, it

does not apply retroactively to the collateral review of a state criminal conviction that was final

when the Padilla opinion was issued on March 31, 2010. Chaidez v. United States, --- U.S. ---,

133 S.Ct. 1103, 1111, 185 L.Ed.2d 149 (2013); State v. Guerrero, --- S.W.3d ----, 2013 WL

2419595 at *6 (Tex.Crim.App. 2013); Ex parte De Los Reyes, 392 S.W.3d 675, 679

(Tex.Crim.App. 2013). Nieves entered his plea of guilty on February 24, 2004 and the trial court

placed him on deferred adjudication in accordance with the plea bargain on that same date. For

purposes of Padilla, Nieves’s conviction was final on February 24, 2004. See State v. Guerrero,

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--- S.W.3d ---, 2013 WL 2419595 at *6. The trial court did not abuse its discretion by

concluding that Nieves failed to establish ineffective assistance of counsel claim based on his

claim that counsel failed to advise him of the immigration consequences of his guilty plea as

required by Padilla. We overrule Issue Ten and affirm the judgment of the trial court.

July 24, 2013
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)

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