Opinion issued June 25, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00897-CR
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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).
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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
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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).
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