Fourth Court of Appeals
San Antonio, Texas
CONCURRING OPINION
No. 04-22-00543-CR
Victor Antonio MARTINEZ BLANCO,
Appellant
v.
The STATE of Texas,
Appellee
From the 454th Judicial District Court, Medina County, Texas
Trial Court No. 19-07-13332-CR
Honorable Daniel J. Kindred, Judge Presiding
Opinion by: Beth Watkins, Justice
Concurring Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: July 26, 2023
I join in the majority’s memorandum opinion and respectfully concur in its judgment
affirming Martinez Blanco’s conviction. I write separately to highlight that Espinoza v. U.S.,
Crim. Act. No. L-8-2031-1, 2012 WL 3100465, at *4 (S.D. Tex. Jul. 30, 2012), and Manalan v.
State, No. 14-17-00088-CR, 2019 WL 922287, at *8 (Tex. App.—Houston [14th Dist.] Feb. 26,
2019, pet. ref’d) (mem. op., not designation for publication), differ on whether the holding in
Padilla v. Kentucky, 559 U.S. 356, 359 (2010), may support Martinez Blanco’s issue that his trial
Concurring Opinion 04-22-00543-CR
counsel was ineffective for failing to properly advise him of the immigration consequences of
proceeding to trial.
In Padilla, a lawful permanent resident was indicted for trafficking a large quantity of
marijuana in his tractor-trailer while driving in Kentucky. 559 U.S. at 359. He pled guilty after
his attorney advised him that he “did not have to worry about immigration status since he had been
in the country so long.” Id. However, under federal law it was clear that if Padilla pled guilty, he
would be deported. The issue the United States Supreme Court had to resolve was whether
Padilla’s counsel was deficient because he had a duty to advise Padilla that he would be deported
if he pled guilty to the charge. Id. The Court held that defense attorneys do have such a duty.
According to the Court, if immigration law regarding deportation is “not succinct and
straightforward,” defense attorneys must merely advise their clients that they could be deported,
but when the law is “truly clear” that the defendant would be deported if convicted, defense
attorneys have a duty to “give correct advice [that] is equally clear.” Id. at 369.
In Manalan, a jury found the appellant guilty of misdemeanor assault, and the trial court
sentenced him to confinement for one year, probated for two years and a $ 300 fine. 2019 WL
922287, at *1. The appellant moved for a new trial. Id. at *9. In the affidavit supporting the
appellant’s motion, 1 he averred:
My trial lawyers did not tell me that a one-year sentence would result in an
aggravated felony, nor did anyone else before I was convicted and sentenced. Had
I known, I would not have chosen to proceed to trial. The chance of an acquittal
would have been greatly outweighed in my mind by the chance that a sentence of
probation would have been a one-year sentence that was probated.
Id. In assessing appellant’s motion, the trial court also considered the affidavit of a prosecutor,
who averred that appellant was offered “‘a Deferred Adjudication in order to resolve the case’ and
1
Martinez Blanco’s motion for new trial, filed without any supporting affidavit, asserts in a conclusory fashion that
“the verdict and punishment assessed in the matter is contrary to the law and evidence.”
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Concurring Opinion 04-22-00543-CR
that the offer was left open during the pendency of the case up until trial.” Id. The trial court
denied appellant’s motion for new trial. Id. On appeal, the appellant argued that his trial counsel
rendered ineffective assistance by failing to inform appellant that “he would be subject to
‘presumptively mandatory’ deportation as an aggravated felon if he were to receive the maximum
sentence.” Id. at *3. Before finding no prejudice under the second prong of Strickland v.
Washington, 466 U.S. 668, 687–88 (1984), the Texas Fourteenth Court of Appeals observed that
“[a]lthough these circumstances run counter to the typical Padilla scenario, the prejudice prong of
the Strickland test nonetheless may be satisfied by showing a reasonable probability that, but for
trial counsel’s errors, appellant would not have proceeded to trial and instead would have accepted
the State’s plea offer.” 2019 WL 922287, at *8 (citing Ex parte Fassi, 388 S.W.3d 881, 88–87
(Tex. App.—Houston [14th Dist.] 2012, no pet.)).
In Espinoza, a defendant sought to set aside his conviction for possession of marijuana
because his counsel was ineffective for, among other things, “failing to advise him of the
immigration consequences of proceeding to trial.” 2012 WL 3100465, at *4. In rejecting the
defendant’s contention, the federal district court wrote:
However, [the defendant’s] reliance upon Padilla v. Kentucky is misplaced. The
Padilla Court held only that a defendant must be informed about the removal
consequences of accepting a plea, reasoning that the acceptance was not truly
voluntary without that knowledge. Here, [the defendant] was not prejudiced by
involuntarily accepting a guilty plea for the simple reason that he did not accept a
guilty plea at all: [the defendant] was convicted by a jury after a trial.
Id. (internal citations omitted).
Assuming, without deciding, that Martinez Blanco’s assertion that his trial counsel failed
to properly advise him of the immigration consequence of proceeding to trial may serve as the
basis of an ineffective assistance of counsel claim, Martinez Blanco’s sole issue fails under
Strickland’s first prong. As the majority notes, the appellate record contains no information about
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Concurring Opinion 04-22-00543-CR
any plea-bargain agreements the State may have offered Martinez Blanco or advice he may have
received from his court-appointed counsel before he pled not guilty. Without such information,
we cannot begin to assess, under Strickland’s first prong, whether the performance of Martinez
Blanco’s trial counsel fell below an objective standard of reasonableness. 466 U.S. at 687–88.
For these reasons, I join in the majority’s memorandum opinion and respectfully concur in
its judgment affirming Martinez Blanco’s conviction.
Rebeca C. Martinez, Chief Justice
DO NOT PUBLISH
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Victor Antonio Martinez Blanco v. the State of Texas
Combined Opinion