Ex Parte Sergio Martin Pineda

Affirmed and Memorandum Opinion filed February 10, 2009

Affirmed and Memorandum Opinion filed February 10,

2009.

In The

Fourteenth Court of

Appeals

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NO. 14-08-00678-CR

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EX PARTE SERGIO MARTIN PINEDA, Appellant

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 832291-A

M E M O R A N D U M O P I N I O N

Challenging

the validity of his conviction for possession of a controlled substance,

rendered on a guilty plea for which deferred adjudication community supervision

was imposed, appellant, Sergio Martin Pineda, sought a writ of habeas corpus

under Texas Code of Criminal Procedure article 11.072. [1]

The trial court denied relief. In a single issue, appellant contends he

received ineffective assistance of counsel in relation to the guilty plea which

resulted in his conviction. Because our disposition is based on clearly

settled law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

Factual and Procedural Background

On

January 1, 2000, police stopped appellant for speeding. According to the

police report, after appellant exited his vehicle, he repeatedly put his hands

in his pockets despite being asked to stop, talked constantly, and acted

nervous. Because of this behavior, a back-up officer patted appellant

down for weapons. While patting appellant down, the officer reached into

appellant = s front right pants pocket and felt a small plastic bag containing a soft

substance. The officer, who had previously worked as an undercover

narcotics officer, believed from his training that the bag contained

narcotics. When he pulled the bag from appellant = s pocket, the officer saw it

contained a white powder. The powder field-tested positive for

cocaine. Appellant was charged with possession of less than one gram of a

controlled substance.

On

January 14, 2000, appellant pleaded guilty to possession of a controlled

substance, cocaine, weighing less than one gram. The court deferred

adjudication of guilt, placed appellant on three years = community supervision, and imposed a

$500.00 fine. The State subsequently filed three motions to adjudicate

guilt, and appellant = s deferred adjudication community supervision unsuccessfully

terminated on January 2, 2008.

On March

3, 2008, appellant filed an application for writ of habeas corpus. He

challenged the validity of his conviction on the ground of ineffective

assistance of counsel. He alleged counsel was ineffective because counsel

did not inquire about appellant = s immigration status and did not inform appellant about the

contents of the offense report. After hearing argument, the trial court

denied the application.

Discussion

In a

single issue, appellant contends he received ineffective assistance of counsel

because his attorney failed to properly investigate appellant = s background and the events

surrounding the offense. Appellant contends that, because of counsel = s ineffectiveness, his plea was not

voluntary.

We

determine the voluntariness of a plea by looking at the entire record. See

Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). When

a defendant enters his plea on the advice of counsel and subsequently

challenges the voluntariness of his plea alleging ineffective assistance of

counsel, the voluntariness of the plea depends on (1) whether counsel = s advice was within the range of

competence demanded of attorneys in criminal cases and if not, (2) whether

there is a reasonable probability that, but for counsel = s errors, the defendant would not

have pleaded guilty and would have insisted on going to trial. Ex

parte Morrow , 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v.

Lockhart , 474 U.S. 52 (1985); Strickland v. Washington , 466 U.S. 668

(1984)).

In

evaluating effectiveness of counsel under the first prong, we look to the

totality of the representation and the particular circumstances of each

case. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. There is a strong presumption counsel = s conduct fell within the wide range

of reasonable professional assistance. Id. Appellant bears

the burden of proving by a preponderance of the evidence that counsel was

ineffective. Id.

Immigration

status.

Appellant first argues counsel was ineffective for not inquiring about

appellant = s immigration status. In his declaration, appellant stated his

attorney never asked about appellant = s nationality and assumed appellant

was a United States citizen when, in fact, appellant was a permanent

resident. Appellant continued, A If I knew that by agreeing and

signeing [sic] the papers that [my attorney] asked me to sign, I would later be

in a federal immagration [sic] detention center, I would hav [sic] asked the

lawyer to take a diffrent [sic] approach. @ In his affidavit, appellant = s counsel attested, A I was not aware that [appellant] was

not a United States citizen when he waived indictment and pled guilty . . . .

If I had been aware that [appellant] was not a United States citizen, I would

not have recommended a plea of guilty in this matter. @ [2]

The

record, however, also shows, in conjunction with taking appellant = s plea, the trial court admonished

appellant pursuant to Texas Code of Criminal Procedure article 26.13.

Among other paragraphs, appellant initialed paragraphs containing (1) an

admonishment about possible deportation, (2) an acknowledgment appellant

understood the admonishments, and (3) an acknowledgment appellant understood

the consequences of his plea.

Generally,

courts consider a guilty plea voluntary if the defendant was fully aware of the

direct consequences of the plea. State v. Jimenez , 987 S.W.2d 886,

888 (Tex. Crim. App. 1999). Lack of knowledge about a collateral consequence

does not render the plea involuntary. Id. That a guilty plea

may result in deportation is generally considered a collateral

consequence. Id. at 888 B 89.

Counsel

was under no duty to inform appellant of the collateral consequences of his

plea. Morrow , 952 S.W.2d at 536 . Thus, appellant has not

proved by a preponderance of the evidence his counsel = s failure to inform him regarding

deportation was A> outside the wide range of competence demanded of attorneys in

criminal cases. =@ See id. at 537 (quoting Hill v. Lockhart ,

474 U.S. at 56 ). Therefore, trial counsel = s failure to advise appellant he

would be subject to deportation does not rise to the level of constitutionally

ineffective assistance of counsel. See id. ; Perez v. State ,

31 S.W.3d 365, 368 (Tex. App. C San Antonio 2000, no pet.).

Appellant

distinguishes his case from Perez on the ground that, in appellant = s case, counsel attested he would not

have advised appellant to plead guilty had he known appellant was not a United States citizen. In support, he cites Butler v. State , 716 S.W.2d 48 , 55 B 56 (Tex. Crim. App. 1986). Butler ,

however, involved an attorney = s failure to investigate the facts of the charged robbery;

and, at the hearing on the motion for new trial, two of the witnesses counsel

failed to interview testified the defendant was not the man they saw leaving

the scene immediately after the robbery and identified another man, by name, as

the robber. Id. at 56 . Butler is inapposite.

Investigation

of facts surrounding the traffic offense. Appellant also argues counsel was ineffective

for failing to investigate the facts of the A offense, @ by which he apparently means the

traffic offense leading to his arrest. Appellant asserts counsel = s affidavit A establishes that no investigation of

any type was done in [appellant = s] case. @ He further represents that, in his own declaration, he

stated he was not speeding.

Counsel = s affidavit refers only to counsel = s lack of knowledge of appellant = s immigration status. There is

no reference to investigating or failing to investigate the facts of appellant = s arrest for the traffic

offense. Appellant = s declaration contains the following: A In the morning of January 1, 2000 I

was driveing [sic] on F.M [sic] 529-HWY going west bound a [sic] 35 to 40 mph

on a 45 mph zone. @

Appellant

contends counsel was ineffective for not investigating the following: (1)

whether there was a posted speed limit, (2) what the posted speed limit was,

and (3) what exactly the officer felt during the pat down. As stated

above, any allegation of ineffectiveness must be firmly founded in the record,

and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson , 9 S.W.3d at 813 . Even were we to

assume appellant could establish deficient performance in relation to

investigation of the traffic offense, he has failed to establish prejudice

because he has presented no more than speculation regarding how such an

investigation would have benefitted the defense. See Miranda v.

State , 993 S.W.2d 323, 328 (Tex. App. C Austin 1999, no pet.).

Appellant

has not established ineffective assistance of counsel in relation to either

counsel = s investigation of appellant = s immigration status or facts

surrounding the traffic offense which led to discovery of the cocaine. We

overrule appellant = s sole issue.

The

trial court = s order is affirmed.

/s/ Charles

W. Seymore

Justice

Panel consists of Chief Justice

Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Article 11.072 A establishes the procedures for an application for a writ of habeas

corpus in a felony or misdemeanor case in which the applicant seeks relief from

an order or a judgment of conviction ordering community supervision. @ Tex. Code Crim. Proc. Ann . art. 11.072, ' 1 (Vernon 2005). As relevant to appellant, A [a]t the time the application is filed, the applicant

must be, or have been, on community supervision, and the application must

challenge the legal validity of . . . the conviction for which or order in

which community supervision was imposed . . . . @ Id. ' (2)(b)(1).

[2] These statements relate to the second prong of

the Hill/Strickland/Morrow test. See Ex parte Morrow , 952

S.W.2d 530, 536 (Tex. Crim. App. 1997). Whether counsel was obligated to

inform appellant of the consequence of deportation relates to the first

prong. See id.