                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00074-CR


EX PARTE ANGEL RICKY
ESPINOZA A/K/A JOSE RICKY
ANGEL ESPINOZA

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              FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
                        TRIAL COURT NO. CIV-14-0999

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                           MEMORANDUM OPINION 1

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          Angel Ricky Espinoza a/k/a Jose Ricky Angel Espinoza appeals from a

trial court order denying his pretrial application for writ of habeas corpus. 2 We

affirm.



          1
          See Tex. R. App. P. 47.4.
          2
        We note that the trial court clerk has assigned this application a separate,
civil cause number even though this is an application under section 11.072 of the
code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.072, § 4(b) (West
Supp. 2014) (“At the time the application is filed, the clerk of the court shall
assign the case a file number ancillary to that of the judgment of conviction or
      As part of a plea bargain, appellant pled guilty to misdemeanor possession

of a controlled substance. The trial court followed the agreed-upon punishment

and assessed appellant’s sentence at 180 days’ confinement, probated for one

year. After the State filed a motion to revoke appellant’s community supervision,

he filed this application for writ of habeas corpus, alleging that the written waiver

of counsel he signed during the plea bargaining process was ineffective because

he was not first admonished of immigration consequences specific to the offense

in accordance with the reasoning of Padilla. 3 Padilla v. Kentucky, 559 U.S. 356,

373–74, 130 S. Ct. 1473, 1486–87 (2010). Appellant argued at the hearing on

the application that because he is not a United States citizen, Padilla required the

trial court to appoint counsel to advise him of the potential immigration




order being challenged.”).    Accordingly, we have assigned a criminal cause
number to this case.
      3
       Appellant argued in his application,

             The United States Supreme Court has held that “counsel must
      inform her client whether his plea carries a risk of deportation” in
      case[s] in which the criminal accused is not a citizen of the United
      States and therefore potentially subject to deportation as a result of
      disposition of the criminal charge by the court. The Padilla court in
      no way indicated neither does it appear colorably arguable the court
      intended to imply that a waiver is sufficient to meet the requirements
      of the Constitution where informs the criminal accused that a plea
      may or will carry the risk of deportation. Additionally, the waiver
      utilized in this case, besides being in eight or nine point font, was not
      specific to immigration consequences which might result from the
      plea. In fact, it appears that such consequences are mentioned
      nowhere in the waiver. [Citation omitted.]


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consequences of the plea in order for his waiver of counsel to be knowing,

intelligent, and voluntary.

      After a hearing, the trial court denied appellant’s application. In its order

denying relief, the trial court found that the waiver of counsel that appellant

signed in connection with the plea bargain “required [him] to understand that if he

. . . is not a U.S. Citizen, a ple[a] of guilty or nolo contendere may result in

deportation, exclusion from admission [to the] U.S., or denial of naturalization,”

and that before accepting appellant’s plea, the trial court “ascertained that

[appellant] had been admonished of his rights, and that [appellant] demonstrated

an understanding of” the waiver, including its consequences. The trial court also

found that appellant knowingly executed the waiver and agreed to the plea

bargain.   Thus, the trial court concluded that appellant freely, knowingly and

voluntarily (1) waived his right to an attorney, (2) waived his right to apply for a

court-appointed attorney, and (3) entered his plea.

      We review a trial court’s ruling on a habeas corpus application for abuse of

discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied,

549 U.S. 1052 (2006). The trial court’s application of the law to undisputed facts

is reviewed de novo. Ex parte Roberts, 409 S.W.3d 759, 762 (Tex. App.––San

Antonio 2013, no pet.). A defendant’s sworn representation that his or her waiver

of counsel and guilty plea are knowing, intelligent, and voluntary “constitute[s] a

formidable barrier in any subsequent collateral proceedings.” Kniatt, 206 S.W.3d

at 664.


                                         3
      Although counsel referred to the status of similar persons in appellant’s

situation as “undocumented” and argued in the application that the impact on

appellant is that he “may now face deportation and loss of the ability to re-enter

the United States and to ever . . . gain legal permanent residency or citizenship,” 4

appellant provided no testimony regarding the nature of his noncitizen status.

See Ex parte Garcia, 353 S.W.3d 785, 789 (Tex. Crim. App. 2011) (“Sworn

pleadings provide an inadequate basis upon which to grant relief in habeas

actions.”). If, at the time of his plea and waiver of counsel, he was not present in

the United States legally, then his plea or waiver of counsel could not be

considered involuntary for the failure to inform him of immigration consequences

specific to the charged offense, regardless of the applicability of Padilla. Cf.

State v. Guerrero, 400 S.W.3d 576, 588–89 (Tex. Crim. App. 2013) (“Unlike Jose

Padilla, appellee was an undocumented immigrant and was deportable for that

reason alone, both in 1998 and today. Had appellee gone to trial with counsel

and been acquitted he would not have been transformed into a legal resident.

He could have been deported immediately after walking out of the criminal

courthouse.    The prospect of removal therefore could not reasonably have

affected his decision to waive counsel and plead guilty.” (footnotes omitted)).

      If, instead, appellant had legal noncitizen status at the time of his plea, he

has cited no law applying Padilla––a case deciding the extent of an attorney’s

      4
       Appellant also asserted in indigency filings that he did not have a social
security number or identification card and, thus, could not work.


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duty to his or client––to waivers of the right to counsel. See U.S. v. Kabore, No.

1:13-CR-217-ODE, 2014 WL 2809870, at *6 (N.D. Ga. June 19, 2014) (order)

(holding that because applicant waived counsel in underlying state proceeding,

Padilla is inapplicable).     To do so would elevate the consideration of

consequences of negative immigration status over other negative consequences

that could occur when a defendant elects to waive the right to counsel. See U.S.

v. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 2455 (2002) (“[T]he law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware if the defendant

fully understands the nature of the right and how it would likely apply in general in

the circumstances––even though the defendant may not know the specific

detailed consequences of invoking it.”); cf. Guerrero, 400 S.W.3d at 589 (noting

that court of criminal appeals has repeatedly held that article 26.13 statutory

admonishments are not required in misdemeanor cases).

      The State introduced as evidence a signed “Waiver of Lawyer and

Request to Proceed Pro Se,” which informed appellant of his right to be

represented by a lawyer and to have a lawyer inform him of his “rights to a trial

by jury and . . . other rights.” The waiver also contained six detailed recitals,

among them the following: “if I am not a U.S. citizen, a plea of guilty or nolo

contend[e]re may result in deportation, exclusion from admission into the U.S., or

denial of naturalization.” The waiver further informed appellant that proceeding

without counsel could lead to loss of any defenses, waiver of the right to

complain about technical errors, and waiver of the right to––and ability to


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complain on appeal about the lack of––effective assistance of counsel. Finally,

the waiver concludes,

             I have been advised by the Court of my right to representation
      by counsel in the trial of the charge pending against me. I have
      been further advised that if I am unable to afford counsel, one will be
      appointed for me free of charge. I acknowledge that I am an adult,
      have lived independent of my parents, have sufficient knowledge
      and education to understand what I am reading or ask question[s]
      about portions I do not understand and have no learning difficulties
      that impede day-to-day living. I will immediately let the judge know
      of any misunderstandings or questions I have about the information
      contained on either side of this document.

             I have read and understand the foregoing as well as the other
      side of this paper. The court has this date admonished me of the
      foregoing rights. I waive arraignment by this court. I waive my right
      to a lawyer in this case and request the court to proceed with my
      case without a lawyer being appointed for me. I waive my right to
      counsel.

Underneath appellant’s signature is the following recital, signed by the trial judge:

“Defendant was admonished, demonstrated an understanding of the above . . .

consequences of the waivers set forth herein and knowingly made such waivers

of plea of guilty/nolo contend[e]re.”   There is no evidence in the record that

appellant did not understand or could not read English. 5

      Based on the foregoing, we conclude and hold that appellant did not meet

his burden of defeating the presumption that the recitals in the written judgment

are correct and, therefore, that the trial court did not abuse its discretion by



      5
         Appellant’s counsel asserted in the application that appellant had been
living in the United States since he was between four and six months old.


                                         6
denying relief. See Guerrero, 400 S.W.3d at 583, 589. We affirm the trial court’s

pretrial order.

                                                 /s/ Terrie Livingston

                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

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

DELIVERED: April 30, 2015




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