




Death Opinion








 





IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

 
 



No. AP-75,507



Ex parte BENJAMIN MICHAEL HIGHT, Applicant
 




ON APPLICATION FOR A WRIT OF HABEAS CORPUS 
CAUSE NO. W03-34356-U(A) IN THE 291st JUDICIAL DISTRICT COURT 
DALLAS COUNTY




 Per curiam.
 
 

 This is an application for writ of habeas corpus filed pursuant to the provisions of Article
11.07 of the Texas Code of Criminal Procedure.
 On January 15, 2004, the applicant was convicted, pursuant to a plea of guilty, of
solicitation of a minor with intent to commit sexual assault. (1) The applicant did not file a direct
appeal. In December 2005, he filed an application for writ of habeas corpus alleging that his plea
was involuntary because he was not advised that he would be required to register as a sex
offender. The trial court entered a finding of fact that the applicant's plea was involuntary and
recommended that the requested relief be granted.
	We asked the parties to brief whether this case is distinguishable from Mitschke v. State (2)
and Anderson v. State (3) in which we found that failure to admonish as to sex offender registration
requirements was harmless error. The facts of this case are very different from both Mitschke and
Anderson. First, both Mitschke and Anderson involved a direct appeal while this case is a writ.
Second, in both cases the record contained clear evidence that the defendants already knew of the
sex offender requirement, making the failure to admonish harmless error. There is no such
evidence in this case. (4) Lastly, Mitschke did not claim that his plea was involuntary, he
complained only that he did not receive the required admonishment. 
	Although we held in Mitschke that a failure to admonish does not necessarily render a
plea involuntary, it could render a plea involuntary when there is no showing that the defendant
had knowledge of the consequences of his plea. Whether the applicant had knowledge of the sex
offender registration requirement is a question of fact. The trial court has made findings of fact
that the applicant's plea was involuntary. We agree with the finding of the trial court and
therefore set aside the guilty plea. We remand the applicant to the custody of the Sheriff of Dallas
County to answer the charges against him.
Filed: February 6, 2008.
Do not publish.
1.  Tex. Penal Code Ann. sec. 15.031 (Vernon 2003).
2. 129 S.W.3d 130 (Tex. Crim. App. 2004).
3. 182 S.W.3d 914 (Tex. Crim. App. 2006).
4.  The State contends that the applicant was aware of the sex offender registration requirements because he
submitted a request to be exempted from them on February 9, 2004. Although this is evidence that the applicant was
aware of the requirement on February 9, 2004, it does not prove that he was aware of the requirement at his guilty plea
weeks earlier.
