                                  NO. 12-14-00107-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JULIO SAUCEDO,                                   §      APPEAL FROM THE 145TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      NACOGDOCHES COUNTY, TEXAS
                                  MEMORANDUM OPINION
       Julio Saucedo appeals the trial court’s denial of his application for writ of habeas corpus.
Appellant raises three issues challenging the voluntariness of his guilty plea. We affirm.


                                         BACKGROUND
       In December 2002, Appellant was charged with possession of marijuana in an amount of
two thousand pounds or less, but more than fifty pounds. In January 2003, Appellant entered a
negotiated plea of guilty.   The trial court deferred a finding of guilt, placed Appellant on
community supervision for a term of eight years, and assessed a fine of $2,500.00. In July 2007,
the trial court dismissed the indictment and granted Appellant an early discharge from
community supervision.
       In March 2013, Appellant filed an application for writ of habeas corpus with the trial
court. He alleged that his guilty plea was involuntary because his trial counsel failed to advise
him of the immigration consequences of his plea. The trial court entered findings of fact and
conclusions of law and denied Appellant’s application. This appeal followed.


                                      INVOLUNTARY PLEA
       In his first issue, Appellant argues that his trial counsel was ineffective for failing to
advise him of the immigration consequences of his plea, rendering his guilty plea involuntary. In
his second issue, he argues that we should apply the rule of Padilla v. Kentucky1 retroactively in
his case. In his third issue, he argues that his trial counsel was ineffective by affirmatively
misleading him about the immigration consequences of his plea, rendering his guilty plea
involuntary.
Standard of Review
       An applicant seeking habeas corpus relief based on an involuntary guilty plea must prove
his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
App. 2006). In reviewing a trial court’s ruling on a habeas claim, we view the evidence in the
light most favorable to the ruling and uphold it absent an abuse of discretion. Id.
Applicability of Padilla
       The Supreme Court has held that the Sixth Amendment requires a criminal defense
attorney to inform his client of the risk of automatic deportation as a result of his guilty plea.
State v. Guerrero, 400 S.W.3d 576, 587 (Tex. Crim. App. 2013) (citing Padilla v. Kentucky, 559
U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)). However, that rule does not apply
retroactively to the collateral review of convictions final prior to the Padilla opinion in 2010.
Chaidez v. United States, 133 S. Ct. 1103, 1110, 185 L. Ed. 2d 149 (2013); Ex parte De Los
Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Nor does Padilla apply retroactively in
deferred adjudication cases that are considered final convictions under federal immigration law.
See Guerrero, 400 S.W.3d at 588. Thus, if an applicant has a conviction prior to Padilla for
immigration law purposes, any failure of his trial counsel or the trial judge to inform him of the
deportation consequences of his guilty plea does not entitle him to habeas corpus relief. See id.
       In this case, Appellant pleaded guilty in 2003, before Padilla was decided in 2010. He
completed his term of deferred adjudication community supervision in 2007.              Therefore,
Appellant’s conviction became final for federal immigration law purposes in 2003, and Padilla
does not apply. See id. Accordingly, we overrule Appellant’s second issue.
Trial Counsel’s Failure to Warn of Immigration Consequences
       Because Padilla does not apply in this case, we must apply pre-Padilla law to
Appellant’s ineffective assistance claim. See Ex parte Sudhakar, 406 S.W.3d 699, 702 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d). Under that law, the Sixth Amendment right to
counsel does not extend to collateral consequences of a prosecution. Ex parte Morrow, 952

       1
           559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)


                                                        2
S.W.2d 530, 536 (Tex. Crim. App. 1997).                       Deportation is a collateral consequence of a
prosecution. Hernandez v. State, 986 S.W.2d 817, 821 (Tex. App.—Austin 1999, pet. ref’d)
(citing State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex. Crim. App. 1999)). Thus, Appellant’s
plea was not involuntary under the United States or Texas Constitutions because of any failure of
his trial counsel to warn him about the immigration consequences of his plea. See Ex parte
Sudhakar, 406 S.W.3d at 702. Accordingly, we overrule Appellant’s first issue.
Affirmative Misleading of Trial Counsel
         In support of Appellant’s argument that trial counsel affirmatively misled him about the
immigration consequences of his plea, he asserts only that his trial counsel never informed him
that deferred adjudication would result in a conviction for immigration law purposes. However,
a failure to inform does not constitute affirmative misleading. Therefore, Appellant’s argument
is without merit. Accordingly, we overrule Appellant’s third issue.
Holding
         Because Appellant failed to show that his trial counsel was ineffective or that his guilty
plea was involuntary, the trial court did not err in denying his requested habeas relief.


                                                   DISPOSITION
         Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
order denying his application for writ of habeas corpus.


                                                                          GREG NEELEY
                                                                               Justice



Opinion delivered May 29, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          3
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                             MAY 29, 2015


                                        NO. 12-14-00107-CR


                                       JULIO SAUCEDO,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                               Appeal from the 145th District Court
                   of Nacogdoches County, Texas (Tr.Ct.No. F10816-2002)

              THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the
judgment.
              It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
                   Greg Neeley, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
