                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-103-CR


EX PARTE IVAN DARIO RESTREPO

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     FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      In March 1993, the State charged Appellant Ivan Dario Restrepo with the

misdemeanor offense of indecent exposure. Subsequently, Restrepo pleaded

guilty and, in accordance with a plea bargain agreement, the trial court granted

Restrepo deferred adjudication, sentencing him to eighteen months’ community

supervision. After Restrepo successfully completed deferred adjudication, the

trial court discharged his community supervision and dismissed his case.




      1
          … See Tex. R. App. P. 47.4.
      On September 2, 2008, Restrepo filed an application for a writ of habeas

corpus, seeking to have his 1993 guilty plea set aside and a new trial granted

on the ground that his guilty plea was involuntary because the trial court failed

to admonish him pursuant to article 26.13(a)(4) of the Texas Code of Criminal

Procedure. After a hearing on the matter, the trial court denied Restrepo’s writ

application. Restrepo then filed a motion for rehearing, which the trial court

later denied.

      In his sole issue on appeal, Restrepo asserts that the trial court’s failure

to admonish him, in accordance with article 26.13(a)(4) of the code of criminal

procedure, about the immigration consequences of his guilty plea constituted

harmful error because the record failed to demonstrate that he was a United

States citizen at the time of his plea. We disagree.

      It is true that the legislature has chosen to require by statute that trial

courts admonish persons pleading guilty to a felony that their pleas might result

in deportation, the exclusion from admission to the United States, or the denial

of naturalization under federal law. See Tex. Code Crim. Proc. Ann. art.

26.13(a)(4) (Vernon Supp. 2009); State v. Jimenez, 987 S.W.2d 886, 889

(Tex. Crim. App. 1999). The legislature, however, has not chosen to require

these same admonishments for persons charged with misdemeanors, and the

court of criminal appeals has consistently held that article 26.13 does not apply

to misdemeanor cases. See Gutierrez v. State, 108 S.W.3d 304, 309 (Tex.



                                        2
Crim. App. 2003); McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App.

1981); Johnson v. State, 614 S.W.2d 116, 120 n.1 (Tex. Crim. App. 1981);

Nash v. State, 591 S.W.2d 460, 463 (Tex. Crim. App. 1980); Empy v. State,

571 S.W.2d 526, 529–30 (Tex. Crim. App. 1978) (citing cases back to

1879).2 Thus, because Restrepo was convicted of a misdemeanor, we cannot

conclude that the trial court erred by failing to meet the requirements of article

26.13. See Rosa v. State, Nos. 05-04-00558-CR, 05-04-00571-CR, 2005 WL

2038175, at *1 (Tex. App.—Dallas Aug. 25, 2005, pet. ref’d) (holding that

trial court did not err in failing to meet the requirements of article 26.13 where

defendant was convicted of a misdemeanor).            Accordingly, we overrule

Restrepo’s sole issue and affirm the trial court’s judgment.




                                            BOB MCCOY
                                            JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 31, 2009



      2
       … In support of his argument, Restrepo directs our attention to
Vannortrick v. State, in which the court of criminal appeals held that the trial
court was required to admonish the defendant of the deportation consequences
of his guilty pleas and that error in failing to admonish the defendant about
deportation consequences of guilty pleas was not harmless. 227 S.W.3d 706,
712–14 (Tex. Crim. App. 2007). Vannortrick, however, is distinguishable
from this case because the defendant in Vannortrick was convicted of a felony.

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