Cesar Ivan Pacheco v. State ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
CESAR IVAN PACHECO, No. 08-11-00237-CR
§
Appellant, Appeal from the
§
v. 41st Judicial District Court
§
THE STATE OF TEXAS, of El Paso County, Texas
§
Appellee. (TC# 20050D06005)
§
OPINION
Pursuant to a plea-bargain agreement, Cesar Ivan Pacheco pled guilty to the offenses of
attempted capital murder and aggravated sexual assault.1 In accordance with the agreement, he
was sentenced to 25 years’ imprisonment. Pacheco obtained permission from the trial court to
appeal and now contends, in one issue, that his trial counsel provided ineffective assistance by
failing to inform him that he would be removed from the United States as a consequence of his
guilty pleas. Based on the record before us, we conclude that Pacheco has failed to demonstrate
that he received ineffective assistance.
Standard of Review
A defendant is entitled to effective assistance of counsel when entering a guilty plea. Hill
v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370-71, 88 L. Ed. 2d 203 (1985); Ex parte
Harrington, 310 S.W.3d 452, 458 (Tex.Crim.App. 2010). To establish that his trial counsel
provided ineffective assistance, Pacheco must show by a preponderance of the evidence that his
counsel’s representation fell below the standard of prevailing professional norms and that there is a
1
The State dismissed the charge of Burglary of a Habitation.
reasonable probability that, but for counsel’s deficiency, the result of the trial would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674
(1984); Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App. 2009); Hernandez v. State, 988
S.W.2d 770, 770 n.3 (Tex.Crim.App. 1999).
In evaluating whether trial counsel’s representation fell below the standard of prevailing
professional norms, 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). The issue is whether
counsel’s assistance was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a strong
presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas
v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005); Mallett v. State, 65 S.W.3d 59, 63
(Tex.Crim.App. 2001). A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson, 9
S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740,
quoting Mallett, 65 S.W.3d at 63. To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at 740, quoting
Thompson, 9 S.W.3d at 813. It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex.Crim.App. 2007).
2
In evaluating whether there is a reasonable probability that, but for counsel’s deficiency,
the result of the trial would have been different, we must be convinced that counsel’s errors were
so serious that they deprived the appellant of a fair trial; that is, a trial with a reliable result.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, an appellant bears the burden to
establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is
being challenged. Id. at 697, 104 S.Ct. at 2070.
Discussion
Pacheco’s allegation of ineffective assistance is not firmly founded in the record and the
record fails to affirmatively demonstrate the alleged ineffectiveness.2 Relying on Padilla v.
Kentucky, -- U.S. --, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), Pacheco argues that trial counsel
was required to tell him that he faced definite removal if he pled guilty to two violent felonies and
that his counsel’s failure to do so “amount[ed] to ineffective assistance . . . and would satisfy
[Strickland’s] first prong.” Pacheco asserts that he satisfied the second prong of Strickland
because he “can only argue that it would be rational to conclude that had he been informed that his
plea of guilty would subject him to mandatory removal from the U.S., he would not have entered
his plea.” We disagree.
Notwithstanding Pacheco’s assertion to the contrary, Padilla did not discard Strickland's
2
The State argues that Pacheco did not preserve his claim of ineffective assistance for appellate review because he
failed to present his complaint to the trial court, either at trial or in his motion for new trial. However, as the Texas
Court of Criminal Appeals has made clear, an ineffective-assistance claim may be brought for the first time on appeal.
See Cannon v. State, 252 S.W.3d 342, 347 n.6 (Tex.Crim.App. 2008), citing Robinson v. State, 16 S.W.3d 808, 810
(Tex.Crim.App. 2000).
3
requirement of establishing prejudice in addition to constitutionally deficient representation, nor
did the Supreme Court in Padilla presume prejudice. See 130 S. Ct. at 1478, 1483-84 (holding
that while Padilla’s trial counsel’s performace was constitutionally deficient when he told Padilla
not to worry about his immigration status, remand was necessary to determine whether Padilla
suffered prejudice); Ex parte Ali, 368 S.W.3d 827, 835 (Tex.App.--Austin 2012, pet. ref’d)
(“Padilla did not change the standard for proving prejudice.”). Pacheco is thus still required to
prove prejudice by a preponderance of the evidence. He cannot do so, however, with the record
he brings on appeal.
There is simply nothing in the record demonstrating a reasonable probability that the result
of the proceeding would have been different but for the advice of trial counsel. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068. Pacheco did not assert in his motion for new trial or in an affidavit
that if he had known he would be deported as a result of his guilty pleas, he would have instructed
his trial counsel to try the case or to attempt to obtain a different plea bargain that did not have the
same immigration consequences. Pacheco did not offer any evidence showing that the State
would have considered such an alternative plea bargain or that the State and the trial court were
willing to accept such a plea bargain for anything other than the offenses to which he pled guilty.
Indeed, at Pacheco’s guilty plea hearing, the trial judge informed Pacheco that he was lucky to
receive a twenty-five-year sentence because “[i]f it was up to me or any jury in this county, you
would have gotten life.” See Padilla, 130 S. Ct. at 1485 (“[T]o obtain relief on this type of claim,
a petitioner must convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.”). Moreover, Pacheco did not submit an affidavit or introduce
testimony from trial counsel explaining the motives behind his actions.
4
As established above, Pacheco failed to prove by a preponderance of the evidence that he
would not have pled guilty but for his trial counsel’s allegedly deficient conduct. We therefore
conclude that Pacheco has not satisfied the Strickland test for ineffective assistance because he has
failed to establish that he suffered harm as a result of his trial counsel’s alleged error. See
Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. Pacheco’s sole issue is overruled.
CONCLUSION
Having overruled Pacheco’s sole issue, we affirm the trial court’s judgments.
December 19, 2012
CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Do Not Publish)
5