             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-78,059-01


                       EX PARTE JUAN CARLOS GARCIA, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                             CAUSE NO. W97-31461-S(A)
               IN THE 282ND DISTRICT COURT FROM DALLAS COUNTY


        Per curiam.

                                            OPINION

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual

assault of a child. The conviction was affirmed on direct appeal. Garcia v. State, No. 05-97-01064-

CR (Tex. App.—Dallas del. May 19, 1999).

        Applicant alleges that his guilty plea was involuntary, citing to Padilla v. Kentucky, 559 U.S.

356 (2010). Because the holding in Padilla is not retroactive, Applicant’s involuntary plea claim is

denied. See Chaidez v. United States, 132 S.Ct. 2101 (2012); Ex parte De Los Reyes, 392 S.W.3d

675 (Tex. Crim. App. 2013). Applicant also alleges ineffective assistance of trial counsel for failing
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to call the complainant’s father to give mitigating testimony at punishment. The trial court finds,

with the State’s agreement, that the father would have given favorable testimony and that, had he

testified, “[T]here is a reasonable probability that the court would have assessed punishment at less

than 30 years.” The findings and recommendation are supported by the record.

       Relief is therefore granted. The sentence in Cause No. F-9731461-QS in the 282nd Judicial

District Court of Dallas County is vacated, and Applicant is remanded to the custody of the sheriff

of Dallas County for a new punishment hearing. The trial court shall issue any necessary bench

warrant within 10 days after the mandate of this Court issues.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.

Delivered:     June 5, 2013
Do not publish
