Ex Parte Julio Cerna--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00628-CR

No. 04-04-00629-CR

EX PARTE JULIO CERNA

From the 227th Judicial District Court, Bexar County, Texas

Trial Court Nos. 2000-CR-4666A & 2000-CR-4667A

Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice (dissenting without opinion)

Catherine Stone, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 19, 2005

AFFIRMED

Pursuant to a plea bargain, defendant, Julio Cerna, pled guilty to two offenses of possession of a controlled substance and he was placed on probation. Defendant filed a post-conviction application for writ of habeas corpus, asserting his plea was involuntary because he received ineffective assistance of counsel. After a hearing, the trial court denied the application. We affirm.

DISCUSSION

Defendant contends he would not have pled guilty but for the erroneous immigration advice he received from his trial counsel and his immigration attorney. He alleges both attorneys told him he would not be deported. We review a trial court's ruling on an application for writ of habeas corpus under an abuse of discretion standard. Ex parte Peterson, 117 S.W.3d 804, 819 & n. 67 (Tex. Crim. App. 2003).

The record on appeal does not contain a copy of the plea hearing; however, defendant's brief quotes extensively from that hearing. Assuming, for the purpose of this opinion, that defendant's recitation of the testimony at the plea hearing is accurate, it appears the trial court verbally admonished defendant that a plea of guilty or nolo contendere could affect his citizenship and that such a plea could result in deportation, exclusion from admission to this country, or denial of naturalization under federal law. Defendant said he understood. Defense counsel informed the court that he had referred defendant to an immigration lawyer for advice on how the criminal prosecution would affect defendant's immigration status. According to defendant, the immigration lawyer told him he could enter a plea to possession "without it affecting [his] right to remain in the country." The trial court again warned defendant that "if immigration gets a hold of this and they decide to institute deportation proceedings, regardless of your attorney's advice, you may in fact be deported as a result of this plea[.]" Defendant again responded that he understood. At the writ hearing, (1) defendant testified that he pled guilty because his trial counsel said the charges against him would be reduced and he would not be deported. Defendant said that even though he understood everything the judge told him during the plea hearing and he understood the risk of deportation, he still believed he would not be deported. Defendant insisted he would not have pled guilty if he had known otherwise.

As a general rule, a guilty plea is considered voluntary if the defendant was made fully aware of the direct consequences of his plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999). A guilty plea will not be rendered involuntary by lack of knowledge as to some collateral consequence. Id. The deportation consequence of a guilty plea is generally considered a collateral consequence. Id. at 888-89. The Sixth Amendment right to effective assistance of counsel in criminal prosecutions does not extend to "collateral" aspects of the prosecution. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); Perez v. State, 31 S.W.3d 365, 367 (Tex. App.--San Antonio 2000, no pet.). Counsel's failure to advise a defendant of the collateral consequences does not rise to the level of constitutionally ineffective assistance of counsel. See id.

CONCLUSION

Defense counsel referred defendant to an immigration lawyer. The trial court informed defendant of the risk of deportation. Defendant admitted he understood the court's admonishments. Nothing in this record supports a finding that defense counsel was ineffective. Furthermore, because deportation is a collateral consequence of a guilty plea, even if trial counsel failed to advise defendant of the likelihood of deportation, such a failure does not rise to the level of constitutionally ineffective assistance of counsel. See Perez, 31 S.W.3d at 367-68. Accordingly, we affirm the trial court's judgments.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. The record contains a transcript of the hearing on defendant's application for writ of habeas corpus.