Opinion
04-22-00543-CR
07-26-2023
Victor Antonio MARTINEZ BLANCO, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 454th Judicial District Court, Medina County, Texas Trial Court No. 19-07-13332-CR Honorable Daniel J. Kindred, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
A jury convicted Victor Antonio Martinez Blanco of evading arrest with a motor vehicle and the trial court sentenced him to seven years' imprisonment. In a single issue on appeal, Martinez Blanco contends he received ineffective assistance of counsel. We affirm.
Background
When he was arrested, Martinez Blanco was a resident with legal status in the United States. The appellate record contains no information about any plea-bargain agreements the State may have offered Martinez Blanco or advice he may have received from his court-appointed counsel before he pled not guilty. On appeal, he claims trial counsel was ineffective for failing to properly advise him of the immigration consequences of taking his case to trial.
Analysis
Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must establish that counsel's performance was deficient and he suffered prejudice as a result of that deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Counsel's performance is deficient if it falls below an objective standard of reasonableness." Ex parte Aguilar, 537 S.W.3d 122, 126 (Tex. Crim. App. 2017) (internal quotation marks omitted). Prejudice exists if an appellant shows "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
An appellant "bears the burden of proving by a preponderance of the evidence that counsel was ineffective." Id. at 813. He must overcome the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance" and "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. On direct appeal of an ineffective assistance of counsel claim, there is "[a] substantial risk of failure" because "[i]n the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. at 813-14.
In Padilla v. Kentucky, the United States Supreme Court reviewed a claim of ineffective assistance of counsel relating to legal advice counsel provided on the immigration consequences of a criminal conviction. Padilla v. Kentucky, 559 U.S. 356, 359 (2010). The Court reasoned "immigration law can be complex, and it is a legal specialty of its own." Id. at 369. The Texas Court of Criminal Appeals has similarly recognized, "[a]lthough criminal and immigration law often interact, criminal law attorneys are not necessarily specialists in immigration law." Ex parte Aguilar, 537 S.W.3d at 125. The "objective standard of reasonableness" looks different for criminal defense attorneys when criminal law outcomes result in immigration law consequences, and that standard changes depending on how clear the immigration consequences are. Padilla, 559 U.S. at 369. If "the law is not succinct and straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. "But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." Id.
Application
Martinez Blanco contends trial counsel was ineffective for failing to advise him of immigration consequences of "taking his case to trial." On appeal, he claims he would not have gone to trial and instead would have accepted a plea-bargain agreement if he had been informed that a conviction would result in his deportation.
To establish ineffective assistance, Martinez Blanco has to demonstrate that if he had been properly advised of the immigration consequences of taking his case to trial-and, presumably, a conviction-he instead would have accepted a plea-bargain agreement that would have allowed him to remain in the United States. Cf. Padilla, 559 U.S. at 369. But, as Martinez Blanco concedes on appeal, "[i]t is unclear from the record what plea offers were made to Appellant prior to his trial." The undeveloped record here simply does not demonstrate that the State offered Martinez Blanco any plea-bargain agreement, much less a plea-bargain agreement that would have allowed him to avoid deportation. In the absence of such evidence, any conclusion that he would have an option to avoid deportation would be purely speculative. Cf. Lee v. United States, 582 U.S. 357, 369-70 (2017) (finding ineffective assistance where record supported defendant's claim that he would not have pled guilty had counsel correctly advised him that upon conviction, deportation was mandatory; defendant was informed on the record at the plea colloquy that his conviction "could result in your being deported"; answered in the affirmative when asked whether the deportation consequences "affect your decision about whether you want to plead guilty or not"; defendant sought advice from counsel; and "counsel assured him that the judge's statement was a 'standard warning'"). In these circumstances, we must conclude that he has not overcome the presumption of effective assistance of counsel. See Thompson, 9 S.W.3d at 813.
Conclusion
For the foregoing reasons, we overrule Martinez Blanco's sole issue on appeal and affirm the trial court's judgment in all respects.
CONCURRING OPINION
Rebeca C. Martinez, Chief Justice
I join in the majority's memorandum opinion and respectfully concur in its judgment affirming Martinez Blanco's conviction. I write separately to highlight that Espinoza v. U.S., Crim. Act. No. L-8-2031-1, 2012 WL 3100465, at *4 (S.D. Tex. Jul. 30, 2012), and Manalan v. State, No. 14-17-00088-CR, 2019 WL 922287, at *8 (Tex. App.-Houston [14th Dist.] Feb. 26, 2019, pet. ref'd) (mem. op., not designation for publication), differ on whether the holding in Padilla v. Kentucky, 559 U.S. 356, 359 (2010), may support Martinez Blanco's issue that his trial counsel was ineffective for failing to properly advise him of the immigration consequences of proceeding to trial.
In Padilla, a lawful permanent resident was indicted for trafficking a large quantity of marijuana in his tractor-trailer while driving in Kentucky. 559 U.S. at 359. He pled guilty after his attorney advised him that he "did not have to worry about immigration status since he had been in the country so long." Id. However, under federal law it was clear that if Padilla pled guilty, he would be deported. The issue the United States Supreme Court had to resolve was whether Padilla's counsel was deficient because he had a duty to advise Padilla that he would be deported if he pled guilty to the charge. Id. The Court held that defense attorneys do have such a duty. According to the Court, if immigration law regarding deportation is "not succinct and straightforward," defense attorneys must merely advise their clients that they could be deported, but when the law is "truly clear" that the defendant would be deported if convicted, defense attorneys have a duty to "give correct advice [that] is equally clear." Id. at 369.
In Manalan, a jury found the appellant guilty of misdemeanor assault, and the trial court sentenced him to confinement for one year, probated for two years and a $ 300 fine. 2019 WL 922287, at *1. The appellant moved for a new trial. Id. at *9. In the affidavit supporting the appellant's motion, he averred:
Martinez Blanco's motion for new trial, filed without any supporting affidavit, asserts in a conclusory fashion that "the verdict and punishment assessed in the matter is contrary to the law and evidence."
My trial lawyers did not tell me that a one-year sentence would result in an aggravated felony, nor did anyone else before I was convicted and sentenced. Had I known, I would not have chosen to proceed to trial. The chance of an acquittal would have been greatly outweighed in my mind by the chance that a sentence of probation would have been a one-year sentence that was probated.Id. In assessing appellant's motion, the trial court also considered the affidavit of a prosecutor, who averred that appellant was offered "'a Deferred Adjudication in order to resolve the case' and that the offer was left open during the pendency of the case up until trial." Id. The trial court denied appellant's motion for new trial. Id. On appeal, the appellant argued that his trial counsel rendered ineffective assistance by failing to inform appellant that "he would be subject to 'presumptively mandatory' deportation as an aggravated felon if he were to receive the maximum sentence." Id. at *3. Before finding no prejudice under the second prong of Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Texas Fourteenth Court of Appeals observed that "[a]lthough these circumstances run counter to the typical Padilla scenario, the prejudice prong of the Strickland test nonetheless may be satisfied by showing a reasonable probability that, but for trial counsel's errors, appellant would not have proceeded to trial and instead would have accepted the State's plea offer." 2019 WL 922287, at *8 (citing Ex parte Fassi, 388 S.W.3d 881, 88-87 (Tex. App.-Houston [14th Dist.] 2012, no pet.)).
In Espinoza, a defendant sought to set aside his conviction for possession of marijuana because his counsel was ineffective for, among other things, "failing to advise him of the immigration consequences of proceeding to trial." 2012 WL 3100465, at *4. In rejecting the defendant's contention, the federal district court wrote:
However, [the defendant's] reliance upon Padilla v. Kentucky is misplaced. The Padilla Court held only that a defendant must be informed about the removal consequences of accepting a plea, reasoning that the acceptance was not truly voluntary without that knowledge. Here, [the defendant] was not prejudiced by involuntarily accepting a guilty plea for the simple reason that he did not accept a guilty plea at all: [the defendant] was convicted by a jury after a trial.Id. (internal citations omitted).
Assuming, without deciding, that Martinez Blanco's assertion that his trial counsel failed to properly advise him of the immigration consequence of proceeding to trial may serve as the basis of an ineffective assistance of counsel claim, Martinez Blanco's sole issue fails under Strickland's first prong. As the majority notes, the appellate record contains no information about any plea-bargain agreements the State may have offered Martinez Blanco or advice he may have received from his court-appointed counsel before he pled not guilty. Without such information, we cannot begin to assess, under Strickland's first prong, whether the performance of Martinez Blanco's trial counsel fell below an objective standard of reasonableness. 466 U.S. at 687-88.
For these reasons, I join in the majority's memorandum opinion and respectfully concur in its judgment affirming Martinez Blanco's conviction.