                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-08-115-CR


EX PARTE

JAVIER GUTIERREZ

                                          ------------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Javier Gutierrez appeals from the trial court’s order denying

relief on his application for writ of habeas corpus filed pursuant to article 11.09

of the Texas Code of Criminal Procedure. 2 We will affirm.




      1
          … See T EX. R. A PP. P. 47.4.
      2
      … We rely on Gutierrez’s Application for Writ of Habeas Corpus, along
with the record from the hearing on that application, because we did not
request appellate briefing. See T EX. R. A PP. P. 31.1.
                         II. P ROCEDURAL B ACKGROUND

      Gutierrez was indicted for the offense of driving while intoxicated in

Denton County on December 12, 1992.         The record contains three agreed

motions for continuance. In the first motion for continuance dated March 2,

1993, the parties agreed that the arraignment should be continued until March

29, 1993. That motion contains a handwritten notation stating, “[T]enemos

translator en ese dia,” which roughly translates, “[W]e have a translator that

day.” On March 29, 1993, the parties agreed to a continuance until April 13,

1993, and the motion for continuance states that there was a plea based upon

an agreed punishment recommendation from the State. On April 13, 1993, the

parties agreed to a third continuance, postponing further proceedings until June

7, 1993.

      On June 7, 1993—the date that Gutierrez’s case was ultimately called to

trial— an interpreter, whom the county paid for, rendered thirty minutes of

service to assist Gutierrez with the proceedings. On that same date, Gutierrez,

acting pro se, signed waivers—waiving his right to be represented by counsel

and his right to a jury trial—and admonishments. Gutierrez thereafter pleaded

no contest to the offense of misdemeanor driving while intoxicated on

December 12, 1992, and the trial court sentenced him to 120 days’

confinement in the county jail, probated for twenty-four months; suspended his

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license for 365 days; and assessed a $100 fine and $90 in court costs.

Gutierrez did not appeal this conviction.

      On February 25, 2008, Gutierrez filed an application for writ of habeas

corpus, arguing that he is currently facing a felony indictment in Tarrant County

because his 1993 misdemeanor DWI conviction is being used as an

enhancement and that but for the use of the 1993 misdemeanor conviction as

an enhancement, the current charge would be a misdemeanor. Specifically,

Gutierrez argued that his 1993 conviction is void because his plea was

unlawfully induced or involuntarily made and because his waiver of counsel was

unknowingly or unintelligently made and was therefore invalid.

      Gutierrez stated in an affidavit attached to his application that he was

born in Mexico and went to public school in Mexico. He explained that at the

time of his 1993 plea hearing, he did not understand English very well because

Spanish was spoken at his house and at his job. He stated that he did not

know what he was signing and only signed the documents because he was told

that he would not go to jail. He said that the interpreter that Denton County

provided on his court date confused him even more because the interpreter’s

Spanish was not very good. Gutierrez stated that if he had understood that he

was entitled to a lawyer and a jury trial, he would have chosen both.




                                       3
      Also attached to Gutierrez’s application is an affidavit from Jacob Jacoby,

who was the assistant criminal district attorney who prosecuted Gutierrez’s

1992 DWI. In the affidavit, Jacoby did not indicate that he specifically recalled

Gutierrez’s case but said that generally the county court would call pro se

defendants to the bench, inquire of their employment status, and determine

whether they were going to hire counsel, seek an appointed attorney, or

represent themselves pro se.     The county court would indicate that if the

defendants did not want to hire an attorney, they could speak to the State’s

attorney.

      Jacoby said that he did not have a formalized strategy for dealing with

pro se defendants and that when he first met pro se defendants, he would tell

them that he represented the State and that they did not have to talk to him.

Jacoby told them that he could not give advice. Jacoby went through the

Miranda warnings, but he did not explain them.

      Afterwards, the county court would tell pro se defendants that they could

still hire an attorney or have the court appoint one if they could not afford to

hire an attorney.    Jacoby stated that the county court told the pro se

defendants that the court would hold them to the same standard as a licensed

attorney, but the court did not admonish the pro se defendants on the dangers

of self-representation.

                                       4
      Jacoby explained that they had an informal manner of obtaining and

appointing interpreters and that Jonathan Fairbanks, a college student who was

neither licensed nor certified, was appointed in this case.

      In response, the State attached an affidavit from the Honorable Don

Windle, who was the judge in County Court at Law No. 3 at the time of

Gutierrez’s plea.3   In his affidavit, Judge Windle explained that he did not

specifically recall Gutierrez’s case but that his common practice for conducting

criminal pleas included having them conducted on the record, informing the

defendant of his Miranda rights and advising the defendant strongly against

self-representation, and ensuring that an interpreter assisted the defendant if

he did not speak English well.

      After hearing the remarks of counsel and reviewing the file, including

Gutierrez’s application for writ of habeas corpus and the State’s response, the

trial court signed an order denying the requested relief. Gutierrez now appeals

from the denial of the relief he requested in his post-conviction writ.

                            III. S TANDARD OF R EVIEW

      A defendant convicted of a misdemeanor offense may attack the validity

of the conviction by way of habeas corpus if he is either (1) confined or


      3
          … Judge Windle currently presides over the Denton County Probate
Court.

                                       5
restrained as a result of a misdemeanor charge or conviction, or (2) is no longer

confined but is subject to collateral legal consequences resulting from the

conviction. See T EX. C ONST. art. V, § 8; T EX. C ODE C RIM. P ROC. A NN. arts.

11.09, 11.21, 11.22 (Vernon 2006); State v. Collazo, No. 01-06-01076-CR,

2007 WL 3227611, at *2 (Tex. App.—Houston [1st Dist.] Nov. 1, 2007, pet.

stricken). An applicant for a writ of habeas corpus bears the burden of proving

his allegations by a preponderance of the evidence. Ex parte Thomas, 906

S.W.2d 22, 24 (Tex. Crim. App. 1995), cert. denied, 518 U.S. 1021 (1996).

      We generally review a trial court’s ruling on a writ application for an

abuse of discretion. See Ex parte Mann, 34 S.W.3d 716, 718 (Tex. App.—Fort

Worth 2000, no pet.); see also Ex parte Peralta, 87 S.W.3d 642, 645 (Tex.

App.—San Antonio 2002, no pet.). However, an abuse of discretion review of

a trial court’s decision is not necessarily appropriate in the context of

application of law to facts when the decision does not turn on the credibility or

demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App.

1999); Ex parte Peralta, 87 S.W.3d at 645. Instead, an appellate court must

conduct a de novo review when “the trial judge is not in an appreciably better

position than the reviewing court to make that determination.” See Guzman v.

State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). In this case, because no

testimony was taken at the habeas hearing and because the trial judge who

                                       6
heard the habeas application did not preside at trial, we conduct a de novo

review. See Ex parte Peralta, 87 S.W.3d at 645.

                           IV. G UTIERREZ’S A RGUMENTS

      In his application for writ of habeas corpus, Gutierrez contends that he

was denied due process because he (1) received faulty admonishments, (2)

entered into a plea bargain prior to waiving his right to an attorney, (3) entered

into a plea bargain without an interpreter, (4) was appointed an uncertified

interpreter, and (5) invalidly waived his right to an attorney. Gutierrez’s counsel

boiled down his arguments at the hearing on the writ application by saying,

“[B]asically I’m trying to get the prior conviction voided, Your Honor, on the

basis that he did not have an attorney. . . . My argument is based upon two

different legal processes. One being that the waiver of counsel was given

unknowingly. And two, . . . I have a due process argument.”

      Gutierrez argues that he was not properly warned or admonished

regarding the “pitfalls, dangers, and disadvantages of self[-]representation.” A

criminal defendant has a right to the assistance of counsel in state court,

guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution. See Gideon v. Wainwright, 372 U.S. 335, 343, 83 S. Ct. 792,

796 (1963).     Concomitant with the right to counsel is the right to waive

counsel and to represent one’s self. See Faretta v. California, 422 U.S. 806,

                                        7
819, 95 S. Ct. 2525, 2533 (1975). When a criminal defendant chooses to

waive his right to counsel and represent himself, the waiver should be made

“knowingly and intelligently,” and he should be warned of the “dangers and

disadvantages” accompanying such waiver. See id. at 835–36, 95 S. Ct. at

2541. The Texas Court of Criminal Appeals has determined that Faretta is

triggered when a defendant appears without an attorney to contest his guilt but

is not triggered when a defendant appears without an attorney to plead guilty

or nolo contendere. Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App.

2002).

      Here, Gutierrez did not contest his guilt, therefore “the issue is not

whether the trial court admonished the accused of the dangers and

disadvantages of self-representation [pursuant to Faretta], but rather whether

there was a knowing, voluntary, and intelligent waiver of counsel.”           See

Johnson v. State, 614 S.W.2d 116, 119 (Tex. Crim. App. 1981). Gutierrez

acknowledges the decision of the court of criminal appeals limiting the

application of Faretta in cases such as this. We decline to revisit this issue and

hold that Johnson and its progeny are applicable to the case before us. See

Hatten, 71 S.W.3d at 334.       Because the requirements of Faretta are not

invoked by a misdemeanor defendant, like Gutierrez, who waives his right to

representation by counsel and does not contest his guilt, any admonishments

                                        8
that the trial court gave concerning self-representation were more than

Gutierrez was entitled to receive under the law and could thus not have been

“faulty.” What remains to be decided, however, is whether the waiver of the

right to counsel was knowing, intelligent, and voluntary. See id.

         If the defendant in a misdemeanor case where guilt is not contested signs

a written waiver of counsel in court and there is no contradicting evidence or

any evidence that the defendant was coerced or intimidated, then the record

is sufficient to support a finding that the defendant’s waiver of counsel was

valid. Hatten v. State, 89 S.W.3d 160, 163 (Tex. App.—Texarkana 2002, no

pet.).

         Here, Gutierrez hones in on the three motions for continuance in making

his argument that he entered into a plea without an interpreter and before

waiving his right to counsel. Gutierrez takes issue with the fact that he was

first spoken to in English at the arraignment and that he was sent to talk to the

county attorney. At the hearing on the writ application, Gutierrez’s attorney

argued,

         The case was postponed I’m assuming to obtain an interpreter.
         When there was an interpreter, they continued with that which had
         already taken place. They had reached a plea agreement. And
         then they proceed with the plea. And so the defendant is at that
         time already in the plea, got an agreement worked out with the
         county attorney.


                                         9
Gutierrez’s attorney insinuates that some type of plea bargaining may have

taken place during his initial meeting with the prosecutor and argues that he

should have been given the interpreter from day one, prior to being sent to talk

to the prosecutor.

      However, the record does not bear out Gutierrez’s attorney’s rendition of

the proceedings. The first motion for continuance on its face reveals that the

proceedings to develop a plea were postponed until a date when an interpreter

would be available. Moreover, as mentioned above, the record in this case

contains an affidavit from the Honorable Don Windle, who was the judge in

County Court at Law No. 3 at the time of Gutierrez’s plea. Judge Windle stated

that he had no independent recollection of this specific case and then explained

his usual habit, custom, and practice regarding taking pleas:

            “In my court[,] criminal pleas were conducted on the record,
      although such practice was not required nor was it regularly done
      by other misdemeanor courts in Denton County, Texas. I have
      contacted the court reporter, Dawn Nixon, who served in my court
      on the date of Mr. Gutierrez’[s] plea in an attempt to obtain the
      record at issue in this case. Although she no longer works as a
      court reporter, she advised that she still has some records in her
      possession. However, after searching her records, Dawn reported
      that she was not able to locate the record at issue in this case.

             “My normal custom and practice during a plea from a pro se
      defendant was to[] (a) be certain that the defendant was advised
      of his Miranda rights[,] (b) advise him strongly against representing
      himself[,] (c) notify him that he will be at a material disadvantage
      in doing so[,] (d) remind him that he is not familiar with the legal

                                       10
      system and the prosecutor will be[,] and (e) inform him that he will
      be held to the same standard as an attorney. I did not utilize a
      “script” or other checklist but followed an established routine.

            “If I was handling a plea from an individual who did not speak
      English, or speak English well, it was my routine practice to ensure
      that an interpreter or person who could assist the Defendant by
      speaking the Defendant’s first language was provided, although
      doing so was not required. Furthermore, when using an interpreter,
      I would make a special effort in explaining the dangers of pro se
      representation to the defendant by making as certain as possible
      that the admonishments were repeated to him or her in the
      Defendant’s language as accurately as I could ascertain.

            “Plea bargains in my court moved slower than those in other
      misdemeanor courts in Denton County, Texas, during that time
      period because the pleas in my court were on the record and I was
      very systematic regarding pleas. It was my practice to use the
      procedures generally associated with a felony plea for misdemeanor
      pleas.”

      In addition to Judge Windle’s affidavit, the record contains a document

entitled “Waivers,” in which Gutierrez waived his right to counsel and his right

to a trial by jury and applied for probation. This document is signed by both

Gutierrez and Judge Windle.

      The record also contains admonishments signed by Gutierrez, Jacoby, and

Judge Windle and states, “I have read these admonishments prior to entering

my plea.   I have read and reviewed a copy of the judgment . . . .”          The

judgment states, “[T]he Court found that [Gutierrez] knowingly, intelligently,




                                      11
and voluntarily waived [his] right to representation by counsel and right to trial

by jury, and thereafter, [he] entered a plea . . . .”

      The general rule is that a guilty plea is voluntary if the defendant was

made fully aware of the direct consequences of his plea. State v. Jimenez, 987

S.W.2d 886, 888 (Tex. Crim. App. 1999). Pursuant to article 26.13(a) of the

Texas Code of Criminal Procedure, before accepting a guilty plea, the trial court

must admonish the defendant, orally or in writing, of the range of punishment,

the possibility of deportation, and the fact that the defendant will be required

to register as a sex offender, if applicable. See T EX. C ODE C RIM. P ROC. A NN. art.

26.13(a) (Vernon Supp. 2007). When the record reflects that a defendant was

properly admonished, it presents a prima facie showing that the guilty plea was

knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim.

App. 1998); Jackson v. State, 139 S.W.3d 7, 14 (Tex. App.—Fort Worth

2004, pet. ref’d). The burden then shifts to the defendant to establish that,

notwithstanding the statutory admonishments, he did not understand the

consequences of his plea. Martinez, 981 S.W.2d at 197; Jackson, 139 S.W.3d

at 14. An appellant’s ignorance of a collateral consequence does not render the

plea involuntary. Jimenez, 987 S.W.2d at 888–89.

      Our review of the evidence demonstrates that the admonishments signed

by Gutierrez, Jacoby, and Judge Windle informed Gutierrez that the maximum

                                         12
range of punishment was two years’ confinement and a $2,000 fine and that

the minimum range of punishment was seventy-two hours in jail and a $100

fine; that the court was not obligated to follow the plea bargain agreement; that

there was a possibility of deportation; and that he could not appeal without the

trial court’s permission. The record thus reflects that Gutierrez was properly

admonished pursuant to article 26.13 and presents a prima facie showing that

his guilty plea was knowing and voluntary. Martinez, 981 S.W.2d at 197;

Jackson, 139 S.W.3d at 14.

      Although Gutierrez contends that he only signed the documents because

he was told that he would not go to jail and that he thought this would be like

Mexico where money can be paid to avoid going to jail, the record reveals that

he signed his name on the admonishments that specifically listed jail time and

which included the statement, “I understand my sentence and will comply with

the Court’s order.” Moreover, any attempt by Gutierrez to claim that he was

not admonished that his 1993 DWI conviction could be used to enhance future

DWI convictions to a felony does not render his plea involuntary. See Jimenez,

987 S.W.2d at 888–89.

      The record contains no evidence that Gutierrez was coerced or

intimidated. Although the record reflects that Gutierrez—with the help of an

interpreter on March 29, 1992—may have negotiated a plea with the

                                       13
prosecutor, the record also reflects that the trial court’s standard procedure

would not have allowed it to accept Gutierrez’s plea until he (1) had the

assistance of a court-provided interpreter and (2) had signed the waivers and

admonishments. Additionally, Gutierrez’s counsel conceded at the hearing on

the writ application that a certified interpreter was not required at the time

Gutierrez gave his plea. See generally Act of May 21, 1991, 72d Leg., R.S.,

ch. 700, § 1, 1991 Tex. Gen. Laws 2505, 2505 (amended 2005) (current

version at T EX. C ODE C RIM . P ROC. A NN. art. 38.30 (Vernon Supp. 2007)); see

also T EX. G OV'T C ODE A NN. § 57.002(a) (Vernon Supp. 2007) (requiring that “[a]

court shall appoint a certified court interpreter or a licensed court interpreter if

a motion for the appointment of an interpreter is filed by a party or requested

by a witness in a civil or criminal proceeding in the court”). But see Ex parte

Hernandez, No. 02-06-00290-CR, 2007 WL 1502028, at *2 (Tex. App.—Fort

Worth May 24, 2007, no pet.) (mem. op.) (not designated for publication)

(stating that when record is devoid of any request for interpreter and does not

demonstrate that defendant cannot understand the proceedings, defendant

waives right to complain of trial court’s failure to appoint an interpreter). Thus,

we hold that the record is sufficient to support a finding that Gutierrez’s waiver

of counsel was valid because he waived his right to counsel after meeting with

an interpreter who assisted with negotiating his plea. See id.

                                        14
      Moreover, Gutierrez relies on the combined effect of his allegations to set

up his due process argument.       However, because we have held that no

admonishments on self-representation were required, that Gutierrez was

properly admonished under article 26.13, that Gutierrez’s waiver of his right to

counsel was valid, and that a certified interpreter was not required, Gutierrez’s

due process argument fails. We therefore hold that Gutierrez’s right to due

process was not violated during his prior DWI pretrial and plea proceedings.

                                V. C ONCLUSION

      Because we hold that the record is sufficient to support the trial court’s

denial of habeas corpus relief to Gutierrez on the grounds asserted by Guiterrez

in his petition for writ of habeas corpus, we affirm the order denying habeas

corpus relief.




                                                 SUE WALKER
                                                 JUSTICE

PANEL F:     GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 5, 2008




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