
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00463-CR


Ex parte Alfonso O. Quintero





FROM COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
NO. 64,186, HONORABLE LINDA ANN RODRIGUEZ, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Alfonso Quintero was convicted of assault with an affirmative finding of
family violence.    See Tex. Penal Code Ann. § 22.01 (West Supp. 2008); Tex. Code Crim. Proc.
Ann. art. 42.013 (West 2006).  Quintero subsequently filed an application for writ of habeas corpus,
arguing that his plea of nolo contendere pertained only to the charge of assault and did not include
the finding of family violence.  The trial court granted relief, entering a nunc pro tunc judgment of
conviction that omitted the family-violence finding.  In a single issue on appeal, the State argues that
the trial court abused its discretion in granting Quintero's application for writ of habeas corpus.  We
affirm the trial court's order.

BACKGROUND
		The initial information and complaint filed against Quintero charged him with assault
by intentionally, knowingly, or recklessly causing bodily injury to a member of his family or
household.  Both the information and complaint bore the heading, "OFFENSE - ASSAULT -
BODILY INJURY - FAMILY VIOLENCE."  Quintero waived his right to counsel and pleaded nolo
contendere.  In entering his plea, Quintero signed written admonishments stating:

I understand that I have been charged with the offense of Assault - Bodily
Injury; . . . .  I further enter this my plea of NO CONTEST to the offense of Assault
- Bodily Injury; and pray the Court to proceed immediately on the filing hereof by
arraigning me, accepting my plea and waiver of trial by jury, and entering
judgment thereon.  


(Emphases in original.) 

		The trial court accepted Quintero's plea and issued a judgment of conviction for the
offense of "Assault - Bodily Injury/Family Violence," which included an express statement that
Quintero had pleaded nolo contendere to the charge of "Assault - Bodily Injury/Family Violence as
alleged in the information."  Quintero subsequently filed an application for writ of habeas corpus,
arguing that his plea was only voluntary to the extent it related to the charge of "Assault - Bodily
Injury" and that he would not have entered a plea of nolo contendere if he had known that he was
pleading to a family-violence finding as well.  The trial court granted relief in Quintero's favor and
issued a nunc pro tunc judgment of conviction, finding that Quintero's plea was involuntary as to
the charge of "Assault - Bodily Injury/Family Violence," but voluntary as to the charge of "Assault -
Bodily Injury," and finding him guilty of the offense of "Assault - Bodily Injury."  
		The State now appeals, arguing in a single issue that the trial court erred in finding
that Quintero's plea was involuntary and reforming the judgment accordingly.

STANDARD OF REVIEW
		In reviewing the trial court's decision to grant or deny habeas corpus relief, we view
the facts in the light most favorable to the trial court's ruling and uphold that ruling absent an abuse
of discretion.  Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).  We afford almost
total deference to the trial court's determination of the historical facts that are supported by the
record.  Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).  We afford the same
amount of deference to the trial court's application of the law to the facts, if the resolution of the
ultimate question turns on an evaluation of credibility and demeanor.  Ex parte Peterson, 117 S.W.3d
804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis,
219 S.W.3d 335, 371 (Tex. Crim. App. 2007).  If the resolution of the ultimate questions turns on
an application of legal standards, we review the determination de novo.  Id.

DISCUSSION
		The State argues that because a trial court is not required to admonish a defendant in
a misdemeanor case, the fact that Quintero was not admonished regarding the consequences of the
family-violence finding on his misdemeanor assault charge does not render his plea involuntary.  See 
Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003) (holding that article 26.13 of code
of criminal procedure, which requires trial courts to give certain admonishments before accepting
plea of guilty or nolo contendere, applies only to felony prosecutions); see also Tex. Code Crim.
Proc. art. 26.13 (West Supp. 2008).  The State further contends that Quintero's plea was not
rendered involuntary by the fact that he was not aware of the collateral consequences of his plea. (1)
See State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) (holding that plea "will not be
rendered involuntary by lack of knowledge as to some collateral consequence").
		We agree with the State's contention that this case cannot be disposed of based solely
on a failure to admonish or to warn Quintero of collateral consequences.  See Gutierrez, 108 S.W.3d
at 309; Jimenez, 987 S.W.2d at 888.  However, Quintero does not argue that he was merely unaware
of the direct or collateral consequences of the family-violence finding, but instead asserts that he was
unaware he was pleading to a family-violence finding at all.  Quintero's decision to waive his rights
and plead nolo contendere must be sufficiently knowing and voluntary to meet the standard of due
process.  See McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981).  If a defendant
receives misinformation concerning a matter about which he is not constitutionally or statutory
entitled to be informed, his plea may still be rendered involuntary if the defendant shows that the
plea was induced by the misinformation.  Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App.
1997); see also Shepherd v. State, 673 S.W.2d 263, 266 (Tex. App.--Houston [1st Dist.] 1984, no
pet.) ("[A] plea of guilty or nolo contendere will not support a conviction when that plea is motivated
by significant misinformation conveyed by the court or one of its officers.").  Furthermore, a
defendant's plea cannot be considered voluntary in the absence of "adequate notice of the nature of
the charge against him, or proof that he in fact understood the charge."  Henderson v. Morgan,
426 U.S. 635, 645 n.13 (1976).
		At the hearing on the application for writ of habeas corpus, the trial court heard
Quintero's testimony that at the time he entered his plea, he was not represented by counsel, had not
read the judgment, and was unaware that he was pleading to an offense involving family violence. 
Quintero further testified that he would not have entered his plea of nolo contendere if he had been
aware of the family-violence finding.  The trial court was also presented with evidence that while
the complaint, information, and judgment of conviction referred to the offense of "Assault - Bodily
Injury/Family Violence," the written admonishments signed by Quintero specifically state that he
was pleading nolo contendere to the offense of "Assault - Bodily Injury." (2)
		The record clearly reflects that the written admonishments contained misinformation
regarding the nature of the charged offense.  The questions of whether Quintero was actually misled
by the written admonishments or whether such misinformation induced him to plead nolo contendere
turn on the credibility of his testimony to that effect.  In a habeas corpus proceeding, we are required
to afford almost total deference to the trial court's factual findings, especially those based on
credibility and demeanor.  Ex parte Amezquita, 223 S.W.3d at 367.  We also defer to the trial court's
implied factual findings that are supported by the record.  Ex parte Wheeler, 203 S.W.3d at 325-26. 
The trial court's conclusion that Quintero's plea was involuntary suggests that the trial court found
Quintero's testimony--that he was unaware of the family-violence finding and would not have
pleaded nolo contendere had he been aware of it--to be credible.  In light of the applicable standard
of review, we cannot conclude that the trial court abused its discretion in finding that Quintero's plea
to the offense of "Assault - Bodily Injury/Family Violence" was involuntary.  As a result, we affirm
the trial court's order.


						__________________________________________
						Diane M. Henson, Justice
Before Justices Patterson, Waldrop and Henson
Affirmed
Filed:   January 8, 2009
Do Not Publish 
1.   In his application for writ of habeas corpus, Quintero stated that he was suffering from a
collateral consequence of the family-violence finding because his conviction was being alleged for
enhancement purposes in another prosecution, based on a separate incident, for assault involving
family violence.  See Tex. Penal Code Ann. § 22.01(b)(2) (West Supp. 2008) (assault involving
family violence is enhanced from Class A misdemeanor to third-degree felony if defendant has
previously been convicted of assault involving family violence).
2.   While Quintero's thumb print and signature also appear on the judgment of conviction, he
testified at the hearing that he did not read the judgment or have it read to him before signing it.
