      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00043-CR



                                       Ex parte Saul Salinas


    FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
         NO. 5141, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Saul Salinas appeals from the denial of relief in his habeas corpus proceeding

challenging the order placing him on deferred adjudication community supervision. Salinas pleaded

guilty to three counts of aggravated sexual assault of a child younger than 14 years of age. See

Tex. Penal Code Ann. § 22.021 (West Supp. 2008). Adjudication of guilt was deferred for ten years

pending Salinas’s satisfactory completion of community supervision. After the State filed a motion

to adjudicate, Salinas filed this petition contending that his plea was involuntary and any proceedings

based thereon are void because (1) there is no signed jury waiver in the record, see Tex. Code Crim.

Proc. Ann. art. 26.13(d) (West 2009); and (2) he was not fully informed before pleading guilty of the

consequences in the event of an adjudication of guilt, including that he would be required to register

as a sex offender, see id. art. 42.12, § 5(a), (b) (West Supp. 2008). We affirm.

               An applicant seeking habeas corpus relief on the basis of an involuntary guilty plea

must prove his claim by a preponderance of the evidence. Ex parte Morrow, 952 S.W.2d 530, 535

(Tex. Crim. App. 1997). An appellate court reviewing a trial court’s ruling on a habeas claim 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).

A guilty plea, to be consistent with due process of law, must be entered knowingly, intelligently, and

voluntarily. Id. (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). 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. (citing Brady v. United States, 397 U.S. 742, 755

(1970)). A defendant’s sworn representation that his guilty plea is voluntary “constitute[s] a

formidable barrier in any subsequent collateral proceedings.” Id. (quoting Blackledge v. Allison,

431 U.S. 63, 73-74 (1977)). Mere procedural irregularities such as noncompliance with a statutory

process—including the failure to obtain the defendant’s signature on a waiver of jury trial—do not

alone amount to deprivation of constitutional rights. Ex parte Sadberry, 864 S.W.2d 541, 543

(Tex. Crim. App. 1993).

                Salinas contends that “there is no signed waiver of jury trial among the papers

of this cause.” There is a document entitled Defendant’s Plea of Guilt, Waiver, Stipulation

and Judicial Confession, dated November 4, 1999, bearing a signature on the line for defendant of

“Saul Salinas,” that contains the following language: “I have the right to be confronted with the

witnesses against me whether I have a trial before the court or the jury. . . . I desire to waive and do

waive the following right: . . . Waive the right of trial by jury . . . .” This waiver of the right to trial

by jury is signed by the defendant, his trial attorney, the State’s attorney, and the trial court. The

document is sworn to by Salinas, and his trial attorney signed a statement approving of Salinas’s

actions, including the waiver of his right to a jury trial. This document satisfies the statutory



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requirements for waivers of the right to trial by jury. See Tex. Code Crim. Proc. Ann. art. 1.13(a)

(West 2005).1 We find no error or deprivation of constitutional rights.

               Salinas next complains that the court failed to fully admonish him of the

consequences of his plea in the event of an adjudication of guilt and that he was not advised of

the effects of the sex offender registration statute until after the plea was accepted and judgment

pronounced and he was being advised by the community supervision officer as to the terms

of probation. He contends that this violates the requirements of Texas Code of Criminal Procedure

article 42.12, sections 5(a) and 5(b). Article 26.13 lists some consequences of a guilty plea.

Article 26.13(a)(5) requires the court to admonish a defendant before accepting his plea “that

the defendant will be required to meet the registration requirements of Chapter 62, if the defendant

is convicted of or placed on deferred adjudication for an offense for which a person is subject

to registration under that chapter.” Id. art. 26.13(a)(5). The record contains documents entitled

Admonishments Under V.A.C.C.P. Art. 62.02, et seq., Terms and Conditions of Probation of

Saul Salinas, and a Sex Offender Supplement Probation Terms and Conditions for Sex Offenders.

Each of these documents is dated November 4, 1999, contains a signature in the line for defendant

or probationer, and was filed by the clerk at noon on November 4, 1999. The record does not reveal

in what order these documents were signed. Article 42.12, section 5(a) specifically states that

“[a]fter placing the defendant on community supervision under this section , the judge shall inform


       1
           Salinas contends that the requirements of article 26.13(d) were not fulfilled because there
is no signed waiver of jury trial in the record. See Tex. Code Crim. Proc. Ann. art. 26.13(d)
(West 2009). Even if there were not a signed jury waiver, this argument would fail because
article 26.13(d) does not require a signed jury waiver. See id. Article 26.13(d) governs written
acknowledgments of admonitions, not waivers, regarding various rights other than the right to
jury trial. See id. art. 26.13(a), (d).

                                                  3
the defendant orally or in writing of the possible consequences under Subsection (b) of this section

of a violation of community supervision.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (emphasis

added). Further, article 26.13 requires only substantial compliance with article 26.13(a)(5) and, more

importantly, “[t]he failure of the court to comply with Subsection (a)(5) is not a ground for

the defendant to set aside the conviction, sentence, or plea.” Id. art. 26.13(h). Salinas’s allegations

regarding the completeness and the timing of the admonitions regarding sex-offender registration

do not show actions entitling him to habeas relief.

                Salinas also argues that his plea was invalid because there is nothing in the record

showing a recommended punishment to be imposed if he was later adjudicated guilty. He contends

that this amounted to a failure of the court to inform him of the possible consequences of failure to

comply with the terms of his community supervision.

                A trial court must inform the defendant of the consequences of a probation violation.

See id. art. 42.12, § 5(a);2 Ray v. State, 919 S.W.2d 125, 126 (Tex. Crim. App. 1996). The code

describes the consequences of a probation violation as follows:




       2
           The statute provides in relevant part as follows:

       After placing the defendant on community supervision under this section, the judge
       shall inform the defendant orally or in writing of the possible consequences
       under Subsection (b) of this section of a violation of community supervision. If the
       information is provided orally, the judge must record and maintain the judge’s
       statement to the defendant. The failure of a judge to inform a defendant of possible
       consequences under Subsection (b) of this section is not a ground for reversal unless
       the defendant shows that he was harmed by the failure of the judge to provide the
       information.

Id. art. 42.12, § 5(a) (West Supp. 2008).

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       On violation of a condition of community supervision imposed under Subsection (a)
       of this section, the defendant may be arrested and detained as provided in Section 21
       of this article. The defendant is entitled to a hearing limited to the determination by
       the court of whether it proceeds with an adjudication of guilt on the original charge.
       This determination is reviewable in the same manner as a revocation hearing
       conducted under Section 21 of this article in a case in which an adjudication of guilt
       had not been deferred. After an adjudication of guilt, all proceedings, including
       assessment of punishment, pronouncement of sentence, granting of community
       supervision, and defendant’s appeal continue as if the adjudication of guilt had not
       been deferred. A court assessing punishment after an adjudication of guilt of a
       defendant charged with a state jail felony may suspend the imposition of the sentence
       and place the defendant on community supervision or may order the sentence to be
       executed, regardless of whether the defendant has previously been convicted of a
       felony.


Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b). A statement of a recommended punishment upon

revocation is not expressly required. The case Salinas cites, Ex parte Delaney, stands for the

proposition that, unless the defendant knows what punishment will be recommended upon

revocation of his deferred adjudication community supervision, a pretrial waiver of the right to

appeal cannot be made knowingly regarding the events at the punishment phase. 207 S.W.3d 794,

799-800 (Tex. Crim. App. 2006) (without agreed punishment, pretrial waiver of right to appeal

would be made in ignorance of “unanticipated errors [that] may occur at the punishment phase

of trial”) The Delaney court did not hold, however, that the guilty plea itself was void. See id.

When the legislature listed the consequences that must be conveyed to the defendant, it did not

include a punishment recommendation in the required information. See Tex. Code Crim. Proc. Ann.

art. 42.12, § 5(b). We are not persuaded to add an admonishment to the legislatively determined

requirements. The trial court did not abuse its discretion by failing to give a non-mandatory

admonishment.



                                                 5
               The record contains a document entitled Written Admonishments on Guilty Plea

(Deferred), dated November 4, 1999, and containing a signature on the line for defendant. It states:


       I also understand that on violation of a condition of probation imposed under
       V.A.C.C.P. Article 42.12 Section 5, I may be arrested and detained as provided in
       section 21 of that article. . . . I further understand that after an adjudication of guilt,
       all proceedings, including assessment of punishment, pronouncement of sentence,
       granting of probation, and the defendant’s appeal continue as if the adjudication of
       guilt had not been deferred.


This language tracks the language of subsection (b). See id. This admonishment was repeated in

the judgment assessing deferred adjudication community supervision. As required by statute, Salinas

was informed that, upon revocation of community supervision, the assessment of punishment would

continue as if the adjudication of guilt had not been deferred. Defendant’s Plea of Guilty, Waiver,

Stipulation and Judicial Confession, signed by Salinas on November 4, 1999, sets out the range of

punishment. We find no error or constitutional rights violation.

               Affirmed.




                                                G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 6, 2009

Do Not Publish

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