Ex Parte Armando Hernandez Uribe ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00012-CR
EX PARTE ARMANDO HERNANDEZ URIBE,
From the 40th District Court
Ellis County, Texas
Trial Court No. 31701CR/A
MEMORANDUM OPINION
On September 7, 2007, Armando Hernandez Uribe pleaded guilty to the offense
of evading arrest with a vehicle. TEX. PENAL CODE ANN. § 38.04 (West Supp. 2012). The
trial court convicted Uribe and assessed his punishment at 730 days in a state jail facility
and a $1500 fine. The trial court suspended imposition of the sentence and placed Uribe
on community supervision for 5 years. On September 27, 2012, Uribe filed an
Application for Writ of Habeas Corpus under TEX. CODE CRIM. PRO. ANN. art. 11.072
(West 2005). The trial court denied Uribe’s Application for Writ of Habeas Corpus. We
affirm.
In his first issue, Uribe argues that the trial court erred in denying his
Application for Writ of Habeas Corpus because he was not advised by trial counsel of
the immigration consequences of his plea as required by Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284 (2010) and that his plea was involuntary
because he received ineffective assistance of counsel. In the second issue, Uribe argues
that the trial court abused its discretion in finding that he was properly admonished
regarding the immigration consequences of his plea.
We review the trial court's denial of habeas relief under an abuse of discretion
standard and will consider the facts in the light most favorable to the court's ruling. Ex
parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006); Doyle v. State, 317 S.W.3d 471,
475 (Tex.App. – Houston [1st Dist.] 2010, pet. ref’d). We afford almost complete
deference to the trial court's determination of historical facts supported by the record,
especially when those factual findings rely upon an evaluation of credibility and
demeanor. Doyle v. State, 317 S.W.3d at 475. We apply the same deference to review the
trial court's application of law to fact questions, if the resolution of those determinations
rests upon an evaluation of credibility and demeanor. Id. However, if the outcome of
those ultimate questions turns upon an application of legal standards, we review the
trial court's determination de novo. Id.
In Padilla, the Court held that defense attorneys must advise non-citizen clients
about the deportation risks of a guilty plea. See Padilla v. Kentucky, 130 S. Ct. 1473, 1483-
1484; Ex Parte De Los Reyes, 392 S.W.3d 675, 677 (Tex. Crim. App. 2013). In Chaidez v.
United States, ––– U.S. ––––, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the Court explicitly
Ex parte Uribe Page 2
held that Padilla does not apply retroactively to cases already final on direct review.
The Texas Court of Criminal Appeals declined to give retroactive effect to Padilla under
state habeas law. Ex Parte De Los Reyes, 392 S.W.3d at 679.
In the findings of fact and conclusions of law, the trial court found that the
holding in Padilla does not apply to Uribe’s case because the case was final prior to the
issuance of the Padilla opinion. Uribe argues that his conviction was not final because
he was still on community supervision at the time the Court decided Padilla. Generally
the judgment placing a defendant on community supervision is “final” for the purpose
of appeal from the plea when community supervision is imposed. Ex parte Arjona, No.
09-12-00554-CR, 2013 WL 2151502 *2 (Tex.App. – Beaumont May 15, 2013, no pet.); Nix
v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001). In Arjona, the defendant was on
community supervision at the time Padilla was issued. The court in Aronja found that
the conviction was final before Padilla was handed down because “Arjona’s direct
appeal options were no longer available.” Ex parte Arjona at *2. Uribe did not file a
direct appeal, and his conviction became final before Padilla was handed down. The
trial court did not abuse its discretion in finding that Padilla was not applicable.
The trial court found that Uribe was properly admonished by the court in
accordance with TEX. CODE CRIM. PRO. ANN. art. 26.13 (West Supp. 2012). The trial court
further found that Uribe entered his plea knowingly and voluntarily. The record shows
that Uribe’s trial attorney requested a continuance and noted that “a plea is anticipated
and the defense needs to investigate defendant’s immigration status.” Uribe was
admonished in writing, “If you are not a citizen of the United States of America, this
Ex parte Uribe Page 3
plea may result in your being deported, in your being excluded from admission to this
country, or your being denied naturalization.” Uribe signed a statement that he agreed
to receive the admonishments in writing and that he understood the admonishments
and consequences of his plea. Uribe further signed a waiver stating that he was aware
of his statutory and constitutional rights and that he “voluntarily, knowingly, and
intelligently” waived those rights. The admonishments complied with the
requirements of TEX. CODE CRIM. PRO. ANN. art. 26.13 (West Supp. 2012). Uribe has not
shown that his plea was involuntarily or that he received ineffective assistance of
counsel. We overrule the first and second issues.
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 5, 2013
Do not publish
[CR25]
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