Ex Parte Juan Antonio Torrero

Opinion issued February 13, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00523-CR ——————————— EX PARTE JUAN ANTONIO TORRERO

On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 981845-A

MEMORANDUM OPINION

Juan Antonio Torrero appeals from the trial court’s order denying his application for writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure. 1 In a single issue, appellant contends that the trial court

1 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for appeal in felony or misdemeanor case in which applicant seeks relief from order or judgment of conviction ordering community supervision).

erred in denying his requested relief in light of his counsel’s alleged failure to discuss the clear immigration consequences of his guilty plea, in violation of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). We affirm.

Background

In 2004, appellant, a Mexican citizen, pleaded guilty to a charge of possession of a controlled substance with intent to deliver. He received five years deferred adjudication and was ordered to pay a $500 fine.

In February 2012, appellant filed an amended application for writ of habeas corpus in the trial court, asserting that his plea of guilty was involuntary because he had not been informed that a deferred adjudication would result in his deportation. 2 Appellant stated that although counsel had advised him of the nature of the charge, the facts alleged, the range of punishment for the charged offense, and his legal rights at trial, he was admonished only that a guilty plea might affect his citizenship status but was not advised that it would result in his deportation as required by Padilla. In the memorandum of law submitted in support of his application, appellant also contended that he would not have pleaded guilty had he known that he would be deported.

2 In his application, appellant stated that he is currently detained in the Federal Immigration Detention Center in Livingston, Texas, although it is unclear from the record what precipitated his detention.

On May 16, 2013, the trial court held a hearing on appellant’s application. At the conclusion of the hearing, the court denied his application.

Ineffective Assistance of Counsel

In his sole issue, appellant argues that he received ineffective assistance in regard to his 2004 guilty plea because his trial counsel did not comply with Padilla. 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. Padilla, 559 U.S. at 366, 130 S. Ct. at 1482. However, the United States Supreme Court has since held that Padilla announced a new rule of criminal procedure and, therefore, does not apply retroactively. Chaidez v. United States, 568 U.S. ___, 133 S. Ct. 1103, 1113 (2013). Relying upon Chaidez’s reasoning, the Texas Court of Criminal Appeals subsequently held that Padilla does not apply retroactively under the Texas Constitution. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013) (explicitly declining opportunity to accord retroactive effect to Padilla as matter of state habeas law).

Bound as we are by precedent, and because appellant’s 2004 conviction became final six years before Padilla was decided, he may not avail himself of the *4 decision on collateral review. See Ibarra v. State, ___ S.W.3d___, 2013 WL 1163967, at *2 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, pet. ref’d) (concluding that appellant who was convicted twelve years before Padilla could not rely on it on collateral review and affirming denial of habeas relief). Accordingly, we conclude that the trial court did not abuse its discretion when it denied appellant’s application for writ of habeas corpus.

Conclusion

We affirm the trial court’s judgment.

Jim Sharp Justice

Panel consists of Justices Jennings, Sharp, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).