Ex Parte Juan Gonzalez

NUMBER 13-12-00533-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
EX PARTE JUAN GONZALEZ
On appeal from the 130th District Court
of Matagorda County, Texas.
OPINION
Before Justices Rodriguez, Garza, and Perkes
Opinion by Justice Rodriguez
Appellant Juan Gonzalez appeals the trial court's decision denying him habeas
corpus relief from his 2002 felony conviction for possession of a controlled substance with
intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2010). By a
single issue, Gonzalez contends that the trial court erred in denying his application for writ
of habeas corpus because it should have applied Padilla v. State retroactively. See 130
S. Ct. 1473, 1486 (2010) (holding that defense counsel must inform a defendant if, by
pleading guilty, he risks deportation). We affirm.
I. BACKGROUND
On March 6, 2002, in accordance with a plea bargain agreement, Gonzalez
pleaded guilty to possession of a controlled substance with intent to deliver. See TEX.
HEALTH & SAFETY CODE ANN. § 481.112. In exchange for his guilty plea, the trial court
suspended Gonzalez’s sentence of ten years in the Texas Department of Criminal
Justice, Institutional Division, and placed him on community supervision. Gonzalez did
not appeal his conviction. The trial court terminated Gonzalez’s suspended sentence on
September 22, 2011, and discharged Gonzalez.
On March 6, 2012, after the Department of Homeland Security initiated removal
proceedings against him,1 Gonzalez filed an application for writ of habeas corpus in the
trial court, alleging, under Padilla, that he received ineffective assistance of counsel.
See 130 S. Ct. 2473, 1486. Gonzalez claimed that his attorney failed to advise him of
the consequences of his guilty plea and the acceptance of the plea agreement—that
Gonzalez, an undocumented alien, would be potentially subject to deportation.
II. DISCUSSION
In a single issue, Gonzalez contends that he met his burden under Padilla to prove
his allegations of ineffective assistance of counsel. Gonzalez argues that the 2010
decision in Padilla applies retroactively to the advice he received in connection with his
guilty plea entered in 2002.
Gonzalez acknowledges that his entire argument “hinges” on applying Padilla
retroactively because under pre-Padilla law, "while the Sixth Amendment assures an
accused of effective assistance of counsel in criminal prosecutions, [it] does not extend to
1
According to Gonzalez, the Department of Homeland Security initiated removal proceedings
against him on September 17, 2011.
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'collateral' aspects of the prosecution." Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.
Crim. App. 1997). And under Texas law, immigration consequences of a guilty plea are
considered collateral. State v. Jimenez, 987 S.W.2d 886, 888–89 (Tex. Crim. App.
1999). However, while this appeal was pending, the United States Supreme Court held
that Padilla does not have retroactive effect. Chaidez v. United States, 133 S. Ct. 1103,
1105 (2013) (citing Teague v. Lane, 489 U.S. 288, 301 (1989)). In addition, the Texas
Court of Criminal Appeals recently decided that Padilla's rule does not apply retroactively
under the Texas Constitution. Ex parte De Los Reyes, No. PD-1457-11, 392 S.W.3d
675 (Tex. Crim. App. Mar. 20, 2013).
Therefore, applying pre-Padilla law, Gonzalez's right to effective assistance of
counsel was not violated by his counsel's alleged failure to warn about the collateral
immigration consequences of his guilty plea. See Jimenez, 987 S.W.2d at 888–89; Ex
parte Morrow, 952 S.W.2d at 536. So the trial court did not abuse its discretion when it
denied Gonzalez's application for writ of habeas corpus. See Ex parte Garcia, 353
S.W.3d 785, 787 (Tex. Crim. App. 2011) (providing that we generally review a trial court’s
decision on an application for writ of habeas corpus under an abuse of discretion
standard). We overrule Gonzalez’s sole issue.
III. CONCLUSION
We affirm.
NELDA V. RODRIGUEZ
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of May, 2013.
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