                           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.
                                                2
'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.
                                            3
