Opinion issued November 28, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00383-CR
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EX PARTE JAIME ALEXANDER BLANCO
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 96-DCR-027953
MEMORANDUM OPINION
Appellant, Jaime Alexander Blanco, appeals from the trial court’s order
denying him habeas corpus relief pursuant to Articles 11.072 and 11.08 of the Texas
Code of Criminal Procedure.1 Blanco contends that his trial counsel was ineffective
1
See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 8 (West 2016) (providing for appeal
in felony or misdemeanor case in which applicant seeks relief from order or
judgment of conviction ordering community supervision); id. at art. 11.08 (“If a
person is confined after indictment on a charge of felony, he may apply to the judge
because his counsel did not properly advise Blanco of the immigration consequences
of his 1996 guilty plea, even though it was entered before the issuance of Padilla v.
Kentucky, 559 U.S. 356, 376, 130 S. Ct. 1473 (2010). But Padilla, which established
a new rule requiring counsel to inform defendants of the risk of deportation when
entering guilty pleas, does not apply retroactively to cases that became final prior to
its holding. Accordingly, we affirm the trial court’s order denying Blanco’s
application.
Background
Blanco is a citizen of El Salvador who has been a lawful permanent resident
of the United States since 1992. On August 12, 1996, Blanco pleaded guilty to the
second-degree felony offense of burglary of a habitation, for which the State was
seeking ten years’ confinement. See TEX. PENAL CODE ANN. §§ 12.33, 30.02(a)(3),
(c)(2) (West 2016). However, because he had never been convicted of a felony
before this crime, Blanco was placed on ten years’ probation and ordered to pay
$1,200.00 in restitution, a $300.00 fine, and $126.50 in court costs, in accordance
with his agreement with the State. See TEX. PENAL CODE ANN. §§ 42.12 § 5(a) (West
2016). In addition, Blanco was also ordered to serve 90 days in county jail, complete
of the court in which he is indicted; or if there be no judge within the district, then
to the judge of any district whose residence is nearest to the court house of the
county in which the applicant is held in custody”) (West 2016).
2
240 hours of community service, and comply with all the other conditions of his
probation.
On October 29, 2000, after the State moved to revoke Blanco’s probation,
Blanco pleaded true to several violations, including a misdemeanor DWI conviction,
in exchange for the State’s recommendation that his punishment be assessed at four
years’ confinement. On November 27, 2000, the trial court revoked Blanco’s
probation and sentenced him to four years’ confinement. Blanco did not appeal and
the judgment revoking probation subsequently became final.
On November 28, 2016, more than twenty years after his 1996 plea, Blanco,
through habeas counsel, filed a habeas application, under Articles 11.072 and 11.08,
with a motion to set aside the plea agreement. Blanco claimed that his guilty plea
was involuntary because, even under pre-Padilla law, he was not properly advised
by counsel of the immigration consequences of his plea. Blanco’s application
included an order from an immigration judge, signed on January 27, 2016, indicating
that, after his naturalization application had been denied in 2015, he had been
detained for removal based on his criminal history.
The Habeas Court’s Hearing and Findings of Fact and Conclusions of Law
A hearing was held on Blanco’s writ on February 21, 2017, with his trial
counsel, RoseMary Galvan Schulze, the only witness called to testify. At the
3
hearing, Blanco’s habeas counsel, Eduardo Franco, questioned Schulze2 about her
general policy of providing immigration admonishments to her clients and if she
recalled what she had advised to Blanco before his 1996 guilty plea. At the end of
the writ hearing, the habeas court orally denied Blanco’s writ.
On March 9, 2017, Blanco filed a premature notice of appeal from the oral
denial of his habeas application, and the district clerk assigned his appeal to this
Court on March 10, 2017. On May 25, 2017, the trial court signed an order denying
Blanco’s writ of habeas corpus and motion to set aside the plea agreement. Blanco’s
notice of appeal is deemed to have been filed on May 25, 2017. See TEX. R. APP. P.
27.1(b).
On June 13, 2017, because no certification of Blanco’s right of appeal of the
order denying Blanco’s habeas application had been included with the clerk’s record,
the Clerk of this Court requested a certification from the district clerk. See TEX. R.
APP. P. 37.1. On July 25, 2017, because the required findings of fact and conclusions
of law had not been filed, this Court abated this appeal for both the certification and
findings and conclusions. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a)
(West 2016).
2
At the hearing, while Schulze’s last name was Galvan-Schulze when she
represented Blanco in 1996, she clarified that she was just Schulze now and that she
is retired.
4
On August 14, 2017, the habeas court signed the “Court’s Order and Findings
of Fact and Conclusions of Law Regarding the Applicant’s Application for Writ of
Habeas Corpus (CCP 11.072–Order of Community Supervision).” The habeas court
denied Blanco’s habeas application and further entered the following findings of fact
and conclusions of law:
FINDINGS OF FACT
1. On or about May 16, 1996, Applicant was arrested for the offense
of burglary of a habitation, in Fort Bend County, Texas.
(Indictment)[.]
2. On August 12, 1996, pursuant to a plea bargain with the State,
Applicant pled guilty to the charge of burglary of a habitation, in
this cause number. (Judgment, Conditions of Probation).
3. In accordance with the plea agreement, the trial court placed
Applicant on ten (10) years’ probation, in accordance with a plea
bargain with the State [sic]. (Judgment, Conditions of Probation).
4. On November 28, 2016, Applicant filed his Application for Writ
of Habeas Corpus pursuant to Article 11.072 of the Code of
Criminal Procedure. (Application for Writ of Habeas Corpus).
5. Approximately 20 years passed between the entry of Applicant’s
plea in this case and the filing of his Application for Writ of
Habeas Corpus.
6. An evidentiary hearing was held on Applicant’s Application for
Writ of Habeas Corpus. Applicant’s trial counsel, Rosemary
Galvan Schulze, testified at this hearing. The trial court found
Galvan Schulze’s testimony credible.
7. Galvan Schulze was familiar with the prevailing standards of
practice regarding the provision of immigration advice to non-
citizen criminal defendants at the time of Applicant’s plea.
5
8. Galvan Schulze did not have a specific recollection of exactly
what her interactions were with Applicant.
9. Galvan Schulze would have advised Applicant regarding any
potential immigration consequences prior to the entry of his plea
in this case because this was her standard practice at the time,
despite this not being a constitutional mandate in 1996.
10. Galvan Schulze further advised Applicant regarding the potential
immigration consequences of his plea when she advised him of
the paragraph in the Court’s plea papers which states that “If you
are not a citizen of the United States of America, your 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.” (Admonishments in
Court’s Plea Paperwork).
11. Applicant initialed the paragraph in the plea paperwork advising
him of the potential immigration consequences of his plea.
(Admonishments in Court’s Plea Paperwork).
CONCLUSIONS OF LAW
1. The applicant for a writ of habeas corpus has the burden of
proving his allegations by a preponderance of the evidence.
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006);
Ulloa v. State, 370 S.W.3d 766 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d[]). Applicant in this case failed to prove
his allegations of ineffective assistance of counsel by a
preponderance of the evidence.
2. The United States Supreme Court enunciated the test for claims
of ineffective assistance of counsel in the Sixth Amendment
context in Strickland v. Washington, 466 US. 668, 686, 104 S.
Ct. 2052, [sic] (1984). The standard enumerated in Strickland is
that a defendant claiming ineffective assistance of counsel must
show (1) that counsel’s representation fell below an objective
standard of reasonableness, and (2) that counsel’s deficient
performance prejudiced the defendant. Id. This standard has
6
been adopted by the Texas Court of Criminal Appeals for all
phases of trial. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim.
App. 1999). Reviewing courts presume that counsel’s conduct
falls within the wide range of reasonable professional assistance,
and reviewing courts will find counsel’s performance deficient
only if the conduct is so outrageous that no competent attorney
would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101
(Tex. Crim. App. 2005). Applicant’s trial counsel’s
representation did not fall below an objective standard of
reasonableness in that his conduct was not so outrageous that no
competent attorney would have engaged in it.
3. When an applicant has pled guilty, “the applicant satisfies the
prejudice prong by showing a ‘reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would
have insisted on a jury trial.’” Ex parte Niswanger, 335 S.W.3d
611, [sic] (Tex. Crim. App. 2011) (quoting Hill v. Lockhart, 474
U.S. 52, 58-59 (1985). However, an applicant in a habeas corpus
case alleging prejudice due to negative immigration
consequences must not only allege that he would have insisted
on a jury trial but for his counsel’s errors, but also that the
decision to reject the plea bargain and proceed to trial would have
been a rational one under the circumstances. Padilla v.
Kentucky, 130 S. Ct. 1473, 1485 (2010). The question of whether
that decision would be rational necessarily involves an
evaluation of the facts of the underlying case. Mangum v.
Hargett, 67 F.3d 80, 84 (5th Cir. 1995).
4. The United State’s [sic] Supreme Court’s holding in Padilla v.
Kentucky, 130 S.Ct. 1473 (2010), that a criminal defense lawyer
has an affirmative duty to advise a noncitizen client of the
potential immigration consequences of his plea bargain is a new
rule of procedure, and as such does not apply retroactively.
Chaidez v. United States, 133 S.Ct. 1103 (2013); Ex parte De Los
Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).
5. The equitable doctrine of laches applies to article 11.072 writ
proceedings. Ex parte Bowman, 447 S.W.3d 887, 888 (Tex.
Crim. App. 2014). The application of this doctrine in an 11.072
7
proceeding is a question of fact. Id. The trial court is the sole
finder of fact in an article 11.072 proceeding. Id. A court may
sua sponte consider and determine whether laches should bar
relief. Ex parte Smith, 444 S.W.3d 661, 667 (Tex. Crim. App.
2014).
6. Whether laches applies in a postconviction application for writ
of habeas corpus is a decision that courts should consider on a
case-by-case basis. Ex parte Smith, 444 S.W.3d 661, 666 (Tex.
Crim. App. 2014). In considering whether laches should apply
in a given case, the court should consider “among other things,
the length of applicant’s delay in requesting equitable relief, the
reasons for the delay, and the degree and type of prejudice borne
by the State resulting from the applicant’s delay.” Id. at 666-67.
However, laches should not apply based on delay alone, but the
delay may be excused when the record shows that the applicant’s
delay was not unreasonable because it was due to a justifiable
excuse or excusable neglect, the State would not be materially
prejudiced as a result of the delay; or the applicant is entitled to
equitable relief for other compelling reasons, such as newly
discovered evidence showing his actual innocence. Id. at 667.
7. The Court’s written admonishment that a noncitizen defendant
may be deported, denied admission or denied naturalization
contained in the court’s plea paperwork, which the Applicant
initialed, is in compliance with Texas Code of Criminal
Procedure Article 26.13. Tex. Code Crim. Proc. Ann. art. 26.13
§(a)(4).
8. Applicant failed to prove, by a preponderance of the evidence,
that his counsel was ineffective under the Strickland/Padilla
analysis because Applicant’s trial counsel testified that she
properly admonished her clients at the time as to the immigration
consequences of their pleas, even though this was not required in
1996.
9. Under pre-Padilla law, immigration consequences were a
collateral consequence of the conviction at the time Applicant
entered his plea. Therefore, Applicant’s trial counsel did not
8
have a duty to advise him of the immigration consequences
attendant to his plea in 1996. Ex parte Sudhakar, 406 S.W.3d
699, 702 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
10. Because Applicant’s trial counsel had no duty to advise
Applicant of the immigration consequences of his plea in 1996,
even assuming she did not correctly so advise him, this was a
collateral consequence under pre-Padilla law, and Applicant’s
trial counsel would not have been acting ineffectively under the
law at that time.
11. Applicant has not shown that he was prejudiced by any alleged
ineffectiveness of his trial counsel because he did not prove that
this plea would have made him deportable in and of itself, nor
that there were no waivers of deportation available under his
particular circumstances.
12. Setting aside the merits of Applicant’s application and proof, the
equitable doctrine of laches bars relief in this case. This is
because Applicant’s 20-year delay in filing this action was not
due to a justifiable reason, the State was prejudiced by a lack of
a specific recollection on the part of Applicant’s trial counsel of
her interactions with Applicant, and there was no evidence that
Applicant should be entitled to equitable relief for some other
compelling reason (i.e. actual innocence or the like).
On October 10, 2017, the district clerk filed a supplemental clerk’s record
containing the trial court’s signed certification, which stated that this was not a plea-
bargain case and that Blanco has a right of appeal from the denial of his habeas
application. See TEX. R. APP. P. 25.2(a)(2). On October 17, 2017, this Court
reinstated this case and set it for submission without briefs. See id. 31.1.
DISCUSSION
A. Standard of Review
9
An applicant seeking habeas corpus relief based on an involuntary guilty plea
must prove his claim by a preponderance of the evidence. Kniatt v. State, 206
S.W.3d 657, 664 (Tex. Crim. App. 2006) (citation omitted). When reviewing the
trial court’s ruling on a habeas corpus application, we view the facts in the light most
favorable to the trial court’s ruling and will uphold it absent an abuse of discretion.
Ex parte Duque, No. 01-15-00014-CR, — S.W.3d —, 2017 WL 4067110, at *7
(Tex. App.—Houston [1st Dist.] Sept. 14, 2017, no pet. h.) (citing Kniatt, 206
S.W.3d at 664). A trial court does not abuse its discretion if its ruling lies within
“the zone of reasonable disagreement.” Id. (citing Bigon v. State, 252 S.W.3d 360,
367 (Tex. Crim. App. 2008)).
“When, as here, an applicant seeks relief under Article 11.072 from an order
that orders community supervision, ‘the trial judge is the sole finder of fact.’” Ex
parte Duque, 2017 WL 4067110, at *7 (quoting Ex parte Torres, 483 S.W.3d 35, 43
(Tex. Crim. App. 2016) (citation omitted)). “In this setting, we afford almost total
deference to a trial court’s factual findings when they are supported by the record,
especially when those findings are based upon credibility and demeanor.” Ex parte
Torres, 483 S.W.3d at 42 (citations omitted). “We similarly defer to any implied
findings and conclusions supported by the record.” Ex parte Duque, 2017 WL
4067110, at *7 (internal quotation marks and citation omitted). However, we review
10
de novo mixed questions of law and fact that do not depend upon credibility and
demeanor. See id. (citation omitted).
B. Applicable Law
The two-pronged Strickland test applies to challenges to guilty pleas, such as
the one in the present case, premised on ineffective assistance of counsel. See Ex
parte Obi, 446 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)
(citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985)). Thus, to be
entitled to relief, Blanco was required to show by a preponderance of the evidence
that (1) trial counsel’s performance fell below the objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068
(1984).
In Padilla v. Kentucky, the United States Supreme Court held in 2010 that the
Sixth Amendment requires an attorney for a criminal defendant to provide advice
about the risk of deportation arising from a guilty plea. 559 U.S. 356, 130 S. Ct. at
1473. Blanco’s habeas application concedes that his 1996 guilty plea was entered
before Padilla. However, Blanco still asserts that, even under pre-Padilla law, his
11
plea was made involuntary due to ineffective assistance because his trial counsel
should have advised him about the immigration consequences of his plea.
But Blanco’s burglary conviction became final in 2000 and it is well-settled
law that Padilla created a “new rule” of constitutional procedure that does not apply
retroactively to convictions that became final before the Supreme Court handed
down Padilla in 2010. See Chaidez v. United States, 568 U.S. 342, 344, 133 S. Ct.
1103, 1105 (2013); State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013);
Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Because
Padilla does not apply retroactively to Blanco’s 2000 burglary conviction, he “is not
entitled, as a matter of constitutional law, to habeas-corpus relief based on a failure
by either an attorney or the trial judge to warn him about collateral deportation
consequences.” Guerrero, 400 S.W.3d at 588. “Nor was he entitled to such
admonishments . . . before his guilty plea could be recognized as intelligent and
voluntary.” Id.
C. Analysis
In this case, because Blanco’s 1996 guilty plea, which became final in 2000,
was before Padilla was decided in 2010, pre-Padilla law applies to his habeas
application. See Ex Parte Luna, 401 S.W.3d 329, 334 (Tex. App.—Houston [14th
Dist.] 2013, no pet.); see also Ex parte Medina, No. 01-16-00673-CR, 2017 WL
343614, at *2 (Tex. App.—Houston [1st Dist.] Jan. 24, 2017, no pet.) (per curiam)
12
(mem. op., not designated for publication). Under applicable pre-Padilla law,
“while the Sixth Amendment assures an accused of effective assistance of counsel
in criminal prosecutions, [it] does not extend to ‘collateral’ aspects of the
prosecution.” Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).
Immigration consequences of a guilty plea were considered a collateral matter;
therefore, Blanco’s plea would not be rendered involuntary even if his attorney was
deficient in informing him of the consequences. See State v. Jimenez, 987 S.W.2d
886, 888–89 (Tex. Crim. App. 1999) (“That a guilty plea may result in deportation
is generally considered a collateral consequence.”); Ex parte Luna, 401 S.W.3d 329,
334 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Immigration consequences
of a guilty plea are considered collateral; therefore, [applicant’s] plea would not be
rendered involuntary under the United States or Texas Constitutions even if his
attorney was deficient in informing him of the consequences.”).
As noted above, we must “afford almost total deference to a trial court’s
factual findings when they are supported by the record, especially when those
findings are based upon credibility and demeanor.” Ex parte Torres, 483 S.W.3d at
42. Here, the habeas court found Blanco’s trial counsel, Schulze, to be credible
because it found that she “would have advised Applicant regarding any potential
immigration consequences prior to the entry of his plea in this case because this was
her standard practice at the time, despite this not being a constitutional mandate in
13
1996.” In any event, even if Schulze did not correctly advise Blanco, because Blanco
had no constitutional right to be informed about collateral immigration consequences
at the time of his 1996 guilty plea, the habeas court did not abuse its discretion in
denying Blanco’s habeas application because he cannot demonstrate that his trial
counsel was ineffective. See Luna, 401 S.W.3d at 334–35; see also Ex parte Medina,
2017 WL 343614, at *2. Thus, because Padilla does not apply retroactively to
Blanco’s 1996 guilty plea, he is not entitled to habeas-corpus relief based on a failure
by his trial attorney to warn him about collateral immigration consequences of his
guilty plea. See Guerrero, 400 S.W.3d at 588.
Therefore, we hold that the trial court acted within its discretion in denying
Blanco habeas relief. We overrule his sole issue.3
Conclusion
Accordingly, we affirm the district court’s order denying Blanco’s habeas
application and motion to set aside the plea agreement.
3
Although the habeas court alternatively denied Blanco’s application on the basis of
laches, we need not address whether laches also applied because we would affirm
the habeas court’s right result even if it provided the wrong legal explanation. See
Calloway v. State, 743 S.W.2d 645, 651–52 (Tex. Crim. App. 1988) (“[I]t is well
established that the mere fact that a correct ruling is given for the wrong reason will
not result in a reversal. If the decision is correct on any theory of law applicable to
the case it will not be disturbed.”); see also Ex parte Medina, 2017 WL 343614, at
*2.
14
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
15
Ex Parte Jaime Alexander Blanco
Combined Opinion