Affirmed and Memorandum Opinion filed October 10, 2013.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00008-CR

                           EX PARTE ISIDRO RUIZ



                    On Appeal from the 208th District Court
                             Harris County, Texas
                       Trial Court Cause No. 789378-A

                 MEMORANDUM                      OPINION


      Appellant Isidro Ruiz appeals from the trial court’s order denying his
application for writ of habeas corpus alleging ineffective assistance of counsel in
advising about the immigration consequences of a ―guilty‖ plea. Under the law
applicable to the case under review, immigration consequences are considered
collateral to a ―guilty‖ plea. Accordingly, we affirm.

                                      BACKGROUND

      Appellant is a legal permanent resident of the United States. In 1998,
appellant pleaded ―guilty‖ to possession of cocaine and, pursuant to a plea bargain
agreement with the State, was assessed a four-year probated sentence. Appellant
successfully completed his probation, which was terminated on October 8, 2002.
On February 28, 2011, the Department of Homeland Security initiated removal
proceedings based on appellant’s conviction. On November 23, 2011, appellant
filed an application for writ of habeas corpus in the trial court alleging that his
attorney did not properly advise him that his plea of guilty would result in almost
certain deportation. See Tex. Code Crim. Proc. art. 11.072. The trial court denied
appellant’s application, and appellant appeals.

      The trial court held a hearing on appellant’s application at which appellant’s
trial counsel, Edna Garcia, testified. Garcia testified that it was her practice to
always tell a client that he would be deported as a result of his ―guilty‖ plea, but
Garcia could not be ―100 percent‖ certain that she told appellant that he would be
deported. In her affidavit, Garcia stated she advised appellant to consult with an
immigration attorney before entering a ―guilty‖ plea. She further stated that she
told appellant that because of his ―guilty‖ plea the immigration authorities would
not renew his residency. She also told him he could be picked up and deported any
month when he reported to probation.

      In denying appellant’s application for writ of habeas corpus, the trial court
found that Garcia’s immigration advice to appellant was reasonable under
prevailing professional norms at the time of appellant’s plea, and that appellant
failed to prove by a preponderance of the evidence that the representation by
Garcia was deficient or fell below an objective standard of reasonableness. See
Strickland v. Washington, 466 U.S. 668, 686 (1984).

                                 STANDARD OF REVIEW

      An applicant seeking post-conviction habeas corpus relief bears the burden
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of establishing his claims by a preponderance of the evidence.             Ex Parte
Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). An appellate court
reviewing a trial court’s ruling on a habeas application must review the record
evidence in the light most favorable to the trial court’s ruling and must uphold that
ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006).

                                         ANALYSIS

      In a single issue, appellant argues the trial court erred in denying relief
because his ―guilty‖ plea was illegally obtained under the Sixth Amendment to the
United States Constitution. Appellant relies on Padilla v. Kentucky, 559 U.S. 356
(2010), a case in which the Supreme Court of the United States held that counsel
―must inform her client whether his plea carries a risk of deportation.‖ Id. at 374.
The Supreme Court recently held, however, that the rule announced in Padilla
does not have a retroactive effect; thus, defendants convicted prior to the high
court’s decision in Padilla cannot benefit from its holding. Chaidez v. United
States, ––– U.S. ––––, ––––, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013). In
addition, the Court of Criminal Appeals of Texas has held that the rule announced
in Padilla does not apply retroactively under the Texas Constitution. Ex Parte De
Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).

      Appellant argues that despite the Supreme Court’s holding in Chaidez, his
counsel rendered ineffective assistance because she ―told [appellant] that he could
be picked up and deported any month when he reported to probation.‖ Appellant
argues that because his attorney did not advise him of the certainty of his
deportation, his plea was involuntary.

      Appellant’s probation was successfully completed in 2002, eight years
before the 2010 Padilla holding. Because Padilla does not apply retroactively,
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appellant cannot benefit from its holding. Accordingly, pre-Padilla law applies to
his habeas writ alleging ineffective assistance of counsel.

         Under pre-Padilla law, ineffective assistance of counsel in a criminal
prosecution does not extend to collateral aspects like immigration consequences.
Ex Parte Luna, 401 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2013, no
pet.).    Immigration consequences of a ―guilty‖ plea are considered collateral;
therefore, appellant’s plea would not be rendered involuntary under the United
States or Texas Constitutions even if his attorney had been deficient in informing
him of the consequences. See State v. Jimenez, 987 S.W.2d 886, 888–89 (Tex.
Crim. App. 1999). We overrule appellant’s single issue and hold the trial court did
not abuse its discretion in denying appellant’s habeas application.

         The judgment of the trial court is affirmed.


                                         /s/       Kem Thompson Frost
                                                   Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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