                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


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                                                                No. 08-15-00047-CR
                                                §
 EX PARTE ERIKA GONZALEZ,                                          Appeal from the
                                                §
                                                            Criminal District Court No. 1
                                                §
                                                              of El Paso County, Texas
                                                §
                                                             (TC# 20090D05031-DCRH)
                                                §

                                         OPINION

        Erika Gonzalez appeals the denial of her application for habeas corpus relief from her

2010 guilty plea to one count of possessing a controlled substance. In five issues, Gonzalez

advances two separate theories of ineffective assistance of counsel, contends that she did not

enter into her plea knowingly and voluntarily because she does not speak English, and maintains

she is actually innocent of the crime to which she pleaded guilty. We will affirm the trial court’s

denial of relief.

                                        BACKGROUND

        In 2009, Gonzalez was indicted on two counts of attempting to deliver a controlled

substance. The State alleged that Gonzalez sold cocaine and clonazepam to an undercover police

officer on or about May 22, 2009. Upon the advice of trial counsel Ben Ivey, Gonzalez pleaded
guilty to one count of the lesser offense of possessing a controlled substance and accepted

deferred adjudication.

       On October 17, 2014, Gonzalez filed for a writ of habeas corpus. Gonzalez, through a

Spanish-language translator, testified at the writ hearing that she did not understand English and

that her husband Christopher, who was also Ivey’s client in a different case, served as her

translator during office visits with Ivey. Gonzalez insisted that she did not understand what was

going on at the plea hearing and could not read the plea papers she signed, but agreed to the plea

based solely on Ivey’s advice. On cross-examination, the State produced a transcript of the plea

of hearing—in which Gonzalez testified in English—and asked her why she was able to answer

questions that did not involve a simple yes-no answer. For example, when the trial court asked

her “Are you a United States citizen?” she answered “I’m a resident,” and when asked where she

had gone to school, Gonzalez said “Coronado,” referencing a local high school in El Paso.

Gonzalez stated that she was able to understand and answer those particular questions in English

because they were simple, common questions.

       Gonzalez, a non-citizen permanent resident, further testified that Ivey explained to her

that if she pleaded guilty to the lesser offenses, she would obtain probation and avoid

deportation. He also urged her to take the plea because the jury would see her unsympathetically

and would likely “punish” her for having children in the car during the transaction. He also

stressed that if she did not plea, she would be deported.        At the writ hearing, Gonzalez

maintained that she was innocent and denied being at the scene of the offense.

       Gonzalez’s husband Christopher testified at the hearing. Gonzalez testified that his wife

did not speak English. Gonzalez further stated that his wife “had nothing to do with it” and that

he wanted to fight the case. On cross-examination, Gonzalez admitted he did not know where



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his wife was that day or what she was doing because he was at work.

       Attorney Ivey did not testify at the hearing, but did submit two affidavits that were

admitted into evidence. In his first affidavit, Ivey stated, in relevant part:

       From my recollection and review of the complaint affidavit in the case, the plea
       was completely supported by the evidence. Ms. Gonzalez made a transaction
       with an undercover officer for clonazepam and cocaine, while Ms. Gonzalez[’s]
       children were present in Ms. Gonzalez[’s] vehicle. The Assistant District
       Attorney made an offer to reduce the charge to possession instead of her pleading
       to delivery of a controlled substance, and Mr. Duke also agreed to dismiss count
       II of the indictment concerning the clonazepam. According, I advised Ms.
       Gonzalez that I thought this was a deal worth taking. In my experience, anyone
       charged with delivery of controlled substance is given an offer of prison time, and
       the El Paso District Attorney’s office had been very successful in obtaining prison
       sentences in these types of cases. In addition, there were children involved in this
       transaction which would have been much more damning to Ms. Gonzalez if we
       had taken the case to trial.

       I advised her that if she took this deal it is possible that she will be deported, but
       the chances for her were better since she was pleading to simple possession
       instead of delivery. At no time did I advise nor promise Ms. Gonzalez that she
       would not be deported by pleading to this case.

                                            .      .      .

       As to the conflict of interest, I represented Christopher Gonzalez on a different
       matter, on a different date, on different cause numbers. Advancing Christopher
       Gonzalez[’s] case in no way hindered my representation of Erika Gonzalez in her
       case. In fact, Mr. and Mrs. Gonzalez[s’] cases were very much aligned during
       Ms. Gonzalez[’s] proceedings. [Emphasis in original].

       In his second affidavit, Ivey, who does not speak Spanish, stated that Gonzalez spoke

English, that all of their meetings were conducted in English, that her husband did not serve as

her interpreter during office visits, and that she was able to understand everything in English

without the aid of a translator.

       The State also submitted the complaint affidavit from Detective Joseph Williamson, the

undercover police officer who conducted the sting operation in this case. In the affidavit,

Detective Williamson said he had good reason to believe that “on or about the 22nd day of May,

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2009, . . . one Erika Gonzalez, Hereinafter called the DEFENDANT, did then and there

unlawfully, Intentionally/Knowingly delivered a controlled substance listed in penalty group

3[.]” The affidavit is typewritten, save for the letter “K” in “Erika,” which was handwritten over

an unknown typewritten letter.      Detective Williamson maintained that Gonzalez sold an

undercover officer cocaine and clonazepam in exchange for $250.

       The trial court denied habeas relief, finding, among other things, the testimony of

Christopher and Erika Gonzalez “not to be credible in any respect.” This appeal followed.

                                         DISCUSSION

       The applicant in a habeas corpus proceeding bears the burden of proving she is entitled to

post-conviction relief by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865,

870 (Tex.Crim.App. 2002). We review the trial court’s grant or denial of habeas corpus for

abuse of discretion, viewing the facts in the light most favorable to the trial court’s ruling and

deferring to the trial court in matters involving a determination of credibility or demeanor. Ex

parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006); Ex parte Cisneros, No. 08–11–

00180–CR, 2013 WL 1281995, at *3 (Tex.App.--El Paso Mar. 28, 2013, no pet.)(not designated

for publication).

                               Ineffective Assistance of Counsel

       By her first three issues, Gonzalez presents two separate ways in which trial counsel Ben

Ivey allegedly rendered constitutionally ineffective assistance.       Neither theory Gonzalez

advances is meritorious.

                           Applicable Law: The Strickland Standard

       The Sixth Amendment provides a defendant with the constitutional right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80



                                                4
L.Ed.2d 674 (1984). Counsel renders constitutionally ineffective assistance warranting reversal

where (1) his performance fell below an objective standard of reasonableness, and (2) that the

defendant suffered prejudice, i.e., that there was a reasonable probability that but for the actions

of defense counsel, the outcome of proceedings would be different. Id. at 687-88, 104 S.Ct. at

2064.

                 Failure to Disclose Immigration Consequences of Plea Deal

        Issues One and Two center around whether Gonzalez can state a valid ineffective

assistance of counsel claim based on her lawyer’s purported failure to warn her about the

immigration consequences of her plea, given that she pleaded guilty and agreed to deferred

adjudication twelve days before the United States Supreme Court began requiring defense

counsel to advise noncitizen clients if a criminal conviction would render them presumptively

removable from the United States. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176

L.Ed.2d 284 (2010).

        It is now well-settled law that Padilla created a “new rule” of constitutional procedure

that does not apply retroactively to convictions that became final before the Supreme Court

handed down Padilla on March 31, 2010. See Chaidez v. United States, 133 S.Ct. 1103, 1113,

185 L.Ed.2d 149 (2013); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App.

2013)(refusing to extend Padilla’s application retroactively on state grounds). The question here

is whether Gonzalez’s conviction became “final” for federal immigration purposes before or

after Padilla took effect. In Issue One, Gonzalez contends that Padilla applies to her case

because although she pleaded guilty to two counts of possession before Padilla was issued, she

was placed on deferred adjudication, which suspended execution of the judgment and prevented

it from becoming final until the State moved to adjudicate after March 31, 2010. The State



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counters that even if the judgment was not final under state law until after March 31, 2010,

because the trial court deferred adjudication, we must use the date Gonzalez entered her plea to

determine whether Padilla reaches her claim on habeas review. We agree with the State.

       Although a deferred adjudication is not necessarily “final” in the sense that the judgment

is not fully executed at the time of imposition, that distinction does not matter for federal

immigration purposes. The admission of guilt underpinning the state law deferred adjudication

plea to an “aggravated felony” is sufficient to trigger administrative removability from the

United States. See State v. Guerrero, 400 S.W.3d 576, 588 (Tex.Crim.App. 2013); 8 U.S.C.A.

§ 1101(a)(48)(A)(West 2014)(defining “conviction” for immigration purposes as “a formal

judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld,

where--(i) . . . the alien has entered a plea of guilty or nolo contendere or has admitted sufficient

facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment,

penalty, or restraint on the alien’s liberty to be imposed.”). As such, the date we use to

determine whether Padilla applies in this habeas case is the date Gonzalez pleaded guilty.

Because this guilty plea came before Padilla’s release, Gonzalez cannot rely on Padilla in

making her ineffective assistance of counsel claims.

       In Issue Two, Gonzalez argues that even if Padilla does not apply retroactively to her

case, we may still rely on pre-Padilla cases from the United States Courts of Appeals for the

Second and Ninth Circuits stating that an attorney who affirmatively misrepresents immigration

consequences commits ineffective assistance of counsel. See United States v. Kwan, 407 F.3d

1005, 1015-17 (9th Cir. 2005); United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002). We

disagree. Although the Second and Ninth Circuits recognized in the early 2000s that the gravity

of the collateral immigration consequences of a criminal conviction are a significant factor that



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must be discussed between a defense counsel and her client, the United States Supreme Court did

not constitutionalize that principle nationally until Padilla was decided in 2010. The United

States Supreme Court also made clear in Chaidez that the rule set out in Padilla was new and

could not be applied to cases on collateral review after Padilla was decided. More to the point,

while the Second and Ninth Circuits may have recognized the right articulated in Padilla sooner,

the state courts of Texas did not. As this Court has previously noted, “[p]re-Padilla, trial counsel

did not violate a defendant’s Sixth Amendment right to effective assistance of counsel by failing

to properly advise his client about collateral consequences of the prosecution.” Ex parte Carpio-

Cruz, No. 08-10-00240-CR, 2014 WL 5316988, at *2 (Tex.App.--El Paso Oct. 17, 2014, no

pet.)(op. on remand, not designated for publication). Indeed, when the Texas Court of Criminal

Appeals was given the opportunity to make Padilla retroactive on state law grounds, it explicitly

declined to do so. See Ex parte De Los Reyes, 392 S.W.3d at 679. As such, we cannot rely on

Second and Ninth Circuit precedent as a retroactivity work-around. Gonzalez missed the Padilla

retroactivity cut-off point by twelve days and as such cannot use any failure to give proper

advice as to immigration consequences as a way to challenge her conviction in habeas.

       Issues One and Two are overruled.

                         Conflict of Interest from Dual Representation

       In Issue Three, Gonzalez argues she was denied effective assistance of counsel because

Attorney Ben Ivey labored under a conflict of interest by representing both her and her husband

Christopher in criminal proceedings.       Specifically, Gonzalez asserts that her husband was

prepared to testify at her trial and take full responsibility for the May 22 transaction by attesting

to the fact that he was a drug dealer and she was only a housewife. That testimony, Gonzalez

argues, would have created a reasonable doubt as to the identity of the person who sold drugs to



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the undercover police officer on May 22 and suggested the woman in the car was someone other

than her. However, Gonzalez alleges that trial counsel, who also represented her husband in

another drug transaction case, would have prevented her husband from testifying at her trial for

fear that the husband’s testimony would subject him to increased punishment in the other case.

Because a conflict between their defenses arose, and because trial counsel allegedly chose to

further the husband’s best interests and not those of Gonzalez, she maintains she was denied

effective assistance of counsel on conflict of interest grounds. We disagree that the evidence

presented shows the existence of a conflict of interest that affected Gonzalez’s defense.

       “While ineffective assistance of counsel may result when an attorney labors under a

conflict of interest, an attorney’s joint representation of two or more defendants is not per se

violative of constitutional guarantees of effective assistance.” Rueda v. State, No. 08-08-00186-

CR, 2010 WL 2163808, at *2 (Tex.App.--El Paso May 28, 2010, no pet.)(not designated for

publication). “A defendant can demonstrate a violation of his right to the reasonably effective

assistance of counsel if he can show (1) that his counsel was burdened by an actual conflict of

interest and (2) that the conflict had an adverse effect on specific instances of counsel’s

performance.” Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). “An ‘actual

conflict of interest’ exists if counsel is required to make a choice between advancing his client’s

interest in a fair trial or advancing other interests (perhaps counsel’s own) to the detriment of his

client’s interest.” Id. “To show the required adverse impact, the defendant must show that some

plausible defensive strategy or tactic might have been pursued but was not due to the conflict of

interest.” Ex parte Knelsen, No. 08-13-00013-CR, 2015 WL 5047524, *4 (Tex.App.--El Paso

Aug. 26, 2015, pet. granted)(not designated for publication).

       We conclude that in this case, the trial court correctly decided that there was no conflict



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of interest that arose out of Ivey’s dual representation of husband and wife.              Although

Christopher and Erika Gonzalez were both charged with drug delivery offenses, they were not

codefendants charged with conspiracy or with participating in the same drug delivery offenses

named in this indictment together. Instead, Ben Ivey represented Erika Gonzalez on charges

related to one drug transaction, and also represented her husband Christopher with respect to

other unrelated criminal charges. Limited representation for certain purposes or for different

crimes may eliminate or at least mitigate the scope of potential conflict. See Routier v. State, 112

S.W.3d 554, 584-85 (Tex.Crim.App. 2003)(wife’s lawyer’s limited representation of husband in

pretrial gag order violation hearing did not create a conflict of interest that would have prevented

wife, charged with capital murder, from presenting a defense that shifted blame off of her and

onto her husband). Furthermore, “[i]n the context of multiple representation cases, an actual

conflict arises when one defendant stands to gain significantly by counsel adducing evidence or

arguments that are damaging to the cause of a codefendant whom counsel is also representing.”

[Emphasis added]. Rueda, 2010 WL 2163808, at *2. Here, even if Erika and Christopher were

to somehow be considered codefendants, Erika Gonzalez would not have stood to gain

significantly from her husband’s testimony. At the habeas hearing, Christopher Gonzalez stated

that had the case gone to trial, he would have taken full responsibility for the drug delivery. Yet

as the State correctly points out, Christopher Gonzalez could not provide an alibi for his wife that

day because he did not know where she was or what she was doing during the day while he was

at work, nor did he explain how the delivery was his “fault” or otherwise raise evidence that

would show the woman in the car was someone other than Erika Gonzalez beyond some

testimony indicating that the couple only had one car that he used while he was at work.

       On the record before us, we find that no conflict of interest existed that would have



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rendered Ben Ivey’s representation of both Christopher and Erika Gonzalez constitutionally

impermissible under the Sixth Amendment. Issue Three is overruled.

                                  Knowing and Voluntary Plea

       In Issue Four, Gonzalez avers that she did not knowingly and voluntarily enter into her

plea agreement, both because her attorney misinformed her about the immigration consequences,

and because she did not speak English well enough to appreciate the plea terms or proceeding.

       A guilty plea requires a defendant to waive three constitutional rights: “the right to a jury

trial, the right to confront one’s accusers, and the right not to incriminate oneself.” Kniatt v.

State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). “Accordingly, a guilty plea, to be consistent

with due process of law, must be entered knowingly, intelligently, and voluntarily.” Id. “To be

‘voluntary,’ a guilty plea must be the expression of the defendant’s own free will and must not be

induced by threats, misrepresentations, or improper promises.” Id. “A defendant who pleads

guilty after having been properly admonished of his constitutional rights, who has knowingly and

voluntarily waived those rights, and who has been admonished as required by our constitutions

and art. 26.13, is presumed to have entered a voluntary and knowing plea.” [Footnote omitted].

Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Crim.App. 2004).

       As we previously stated, Ivey had no duty to accurately inform Gonzalez of her plea’s

collateral immigration consequences because the United States Supreme Court did not impose

that duty onto defense attorneys until issuing that new rule in Padilla, which came after her plea

agreement. That portion of Gonzalez’s argument has no bearing on our analysis here. With

respect to Gonzalez’s argument that she does not speak English, the trial court expressly found

that Gonzalez spoke English well enough to understand the nature of her plea. That conclusion

is supported by sufficient evidence in the record. Gonzalez indicated that she understood certain



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questions at the hearing, Ben Ivey’s affidavit asserts that Gonzalez spoke English without any

problems during their pretrial interviews, and the trial court had the ability to assess her

credibility and demeanor. We will defer to the trial court on this point involving credibility.

       Issue Four is overruled.

                                          Actual Innocence

       Finally, in Issue Five, Gonzalez maintains that she is actually innocent of the crimes for

which she pleaded guilty. The State counters that Gonzalez cannot prove actual innocence on

the sparse record presented. We agree.

       A guilty plea does not preclude a habeas applicant from asserting she is actually innocent.

Ex parte Tuley, 109 S.W.3d 388, 393 (Tex.Crim.App. 2002). However, an actual innocence

claim raised in a habeas corpus application is not an attack on the sufficiency of the evidence

presented at trial. Rather, “the successful applicant shows by clear and convincing evidence that,

despite the evidence of guilt that supports the conviction, no reasonable juror could have found

the applicant guilty in light of . . . new evidence.” Id. at 392.

       The State correctly notes that the evidence Gonzalez presented in this habeas corpus

application is not “new” in the sense that it was previously unavailable when she pleaded guilty.

See Ex parte Brown, 205 S.W.3d 538, 545 (Tex.Crim.App. 2006)(evidence is new if it “was not

known to the applicant at the time of trial and could not be known to him even with the exercise

of due diligence”). However, even assuming the testimony was new evidence, it fails to clearly

and convincingly establish that no reasonable juror could have found Gonzalez guilty of the

offense. Although Gonzalez denied being at the scene of the crime, Detective Williamson’s

affidavit affirmatively identified Erika Gonzalez as the woman who sold cocaine and

clonazepam to an undercover police officer from inside the car. Further, Christopher Gonzalez’s



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testimony that his wife was not guilty of the offense and that he was the one responsible for the

drug transaction was vague and did not specify exactly why she was not guilty or how he was

responsible, particularly given that the seller was a woman. Christopher also could not establish

an alibi for her at the time of the offense. We note that Christopher did state that he believed at

the time the family only had one car, and that he used it for work. That fact, coupled with

Gonzalez’s assertion of innocence, could raise an issue as to identity. Even so, how this issue is

resolved on habeas largely hinges on whether the trial court believed Gonzalez and her husband

were credible witnesses. Here, the trial court did not find their testimony credible. We defer to

that credibility finding.

        Because Gonzalez cannot show by clear and convincing evidence that no reasonable juror

would have convicted her in light of the evidence, new and old, as a whole, she is not entitled to

habeas relief on actual innocence grounds. Issue Five is overruled.

                                           CONCLUSION

        Gonzalez has not put forth any meritorious grounds for habeas corpus relief.           The

judgment of the trial court is affirmed.



August 10, 2016
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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