Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 287th District Court Parmer County, Texas
Trial Court No. 3306, Honorable Gordon Houston Green,
CAMPBELL and PIRTLE and PARKER, JJ.
T. Campbell, Justice.
Victor Manuel Pena pled guilty in 2012, pursuant to a plea
agreement, to the offense of delivery of cocaine, in an
amount more than four grams but less than 200
grams. He now appeals from the trial court's
order adjudicating him guilty of the offense, revoking his
community supervision, and sentencing him to six years of
incarceration. In his appellate brief, appellant contends the
trial court erred by denying his motion to set aside his 2012
plea of guilty because his attorney provided him ineffective
assistance by failing to properly advise him of the
deportation consequences of his plea. We affirm the trial
appellant, a legal resident with a green card, was indicted
for delivery of the controlled substance, he entered into a
plea agreement with the State. Appellant agreed to waive
rights, including his right to a jury trial, in exchange for
a recommended sentence deferring his adjudication of guilt
for six years and placing him on community supervision. After
a hearing, the court accepted appellant's plea of guilty,
placed appellant on deferred adjudication community
supervision for the agreed-upon period of six years, and
signed an order of deferred adjudication consistent with the
plea agreement. The court certified that appellant had no
right to appeal the plea-bargained case, and that appellant
waived the right of appeal. No notice of appeal was filed.
2016, the trial court held a hearing on the State's
motion to adjudicate appellant's guilt. The State alleged
appellant violated the conditions of his community
supervision in several ways, among others by leaving the
county and the State without permission on two occasions, by
failing to report for many months, by committing new criminal
offenses, and by failing to report arrests to his community
supervision officer. At the hearing, represented by new
counsel, appellant raised a motion to set aside his plea of
guilty. As grounds for that motion, appellant argued his
original counsel never told him he would be deported as a
result of his guilty plea.
trial court heard testimony from appellant and from his
original counsel. Under questioning by appellant's
counsel, his original counsel testified contrary to
appellant's assertion. She said that before
appellant's plea, she and appellant had a "very
detailed conversation about immigration, deportation,
naturalization, and all that comes with a felony deferred
conviction." The court denied appellant's motion to
set aside his guilty plea, finding he had not established
either that his original counsel's performance fell below
an objective standard of reasonableness, or that a reasonable
probability existed that the results of the proceeding would
have been different but for any ineffectiveness.
his motion was denied, appellant pled "true" to
each of the allegations in the State's motion to
adjudicate guilt and the court adjudicated him guilty,
revoked his community supervision and sentenced him as noted.
appeal, appellant argues the trial court erred by denying his
motion to set aside his plea of guilty. He continues to
assert his original counsel rendered him ineffective
assistance through her inadequate advice concerning the
immigration consequences of his plea. We agree with the State
that appellant's contention must fail, but for reasons
different than those argued by the State.
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App.
1999), the court held the defendant, in his appeal of his
adjudication of guilt, could not raise issues concerning his
conviction that could have been raised when his deferred
adjudication was first imposed. The defendant argued that the
evidence presented in his original plea proceeding was
insufficient to prove his guilt. Id. The Court of
Criminal Appeals stated: "a defendant placed on deferred
adjudication community supervision may raise issues relating
to the original plea proceeding, such as evidentiary
sufficiency, only in appeals taken when deferred adjudication
community supervision is first imposed." Id. at
661-62. As we later held, the holding of the Manuel
opinion is not limited to issues of evidentiary
insufficiency. Webb v. State, 20 S.W.3d 834, 836
(Tex. App.-Amarillo 2000, no pet.) (Manuel barred
post-adjudication appeal, following deferral, asserting
involuntariness of guilty plea); see also George E.
Dix & John M. Schmolesky, 43B Texas Practice: Criminal
Practice and Procedure § 56:86 (3d ed. 2011).
1985 decision in Hill v. Lockhart, the United States
Supreme Court held that "the two-part Strickland v.
Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel." 474 U.S.
52, 58 (1985) (citing Strickland v. Washington, 466
U.S. 668 (1984)). Padilla v. Kentucky applied the
Strickland standard to a claim that the
defendant's lawyer failed to provide needed advice about
the deportation consequences of a plea of guilty. 559 U.S.
356, 366 (2010); see Chaidez v. United States, 568
U.S. 342 (2013) (describing nature of Padilla
holding); Ex parte Torres, 483 S.W.3d 35, 46 (Tex.
Crim. App. 2016) ("Padilla requires that
counsel give a defendant accurate legal advice about the
'truly clear' consequences of a plea of guilty to an
offense that, as a matter of law, renders him 'subject to
automatic deportation'"). For the prejudice prong of
the Strickland test in guilty-plea challenges, the
Court of Criminal Appeals has adopted the standard stated by
the Supreme Court in Hill. Torres, 483
S.W.3d at 47 (citing Hill, 474 U.S. at 60). By that
standard, when a defendant enters a guilty plea with the
advice of counsel and challenges the validity of the plea
with a claim of ineffectiveness of counsel, the prejudice
inquiry asks "whether there is a reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." 483
S.W.3d at 47 (citations omitted).
other instances in which a defendant's plea is induced by
ineffective assistance of counsel, counsel's failure to
abide by Padilla renders a guilty plea involuntary
if the required prejudice is shown. See Ex parte
Aguilar, 537 S.W.3d 122, 129 (Tex. Crim. App. 2017)
(incorrect advice under Padilla rendered plea
involuntary); Ex parte Moussazadeh, 361 S.W.3d 684,
688-89 (Tex. Crim. App. 2012) ...