      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00120-CR
                                       NO. 03-04-00121-CR



                                   Jose Angel Quiab, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
       NOS. 2031467 & 3030833, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The district court convicted appellant Jose Angel Quiab of attempted aggravated

sexual assault and aggravated sexual assault and sentenced him to prison terms of twenty and thirty

years, respectively. See Tex. Pen. Code Ann. § 15.01 (West 2003), § 22.021 (West Supp. 2005).

In two points of error, appellant urges that his waiver of jury trial was not knowingly and voluntarily

made because of an erroneous admonishment by the court.

               Appellant is a citizen of Mexico who was living in this county unlawfully. He was

represented at trial by a Spanish-speaking attorney and an interpreter was appointed. It was

established at arraignment that appellant had refused the State’s plea offer of ten years’

imprisonment in both cases. Counsel told the court that appellant “would not accept anything but
10 years non-aggravated.”1 When asked by the court for his plea, appellant began to discuss the

evidence and the State’s withdrawn offer. The following colloquy ensued:


              THE COURT:               . . . They had recommended before that you do 10
                                       years. You didn’t want to do that, so they have
                                       withdrawn that offer. You can plead guilty if you
                                       want to, and if you do want to do that, then we can
                                       have the jury come in to decide your sentence, or
                                       you can plead guilty and go before me alone and I
                                       can decide your sentence. You can do it that way,
                                       too, or you can plead not guilty and we will have
                                       the trial either with the jury or with me. Have you
                                       talked to your lawyer about this?

              THE DEFENDANT:           Yes.

              THE COURT:               You have explained to him that he cannot get
                                       probation with me if he’s found guilty of that
                                       aggravated case?

              MR. WEHNES:              I have.

              THE COURT:               He could with the jury. His citizenship right now
                                       is what?

              MR. WEHNES:              He’s here illegally, Your Honor.

              THE COURT:               Okay. So I don’t think it is very likely in that
                                       situation that the jury would ever give you
                                       probation, if they were to find you guilty, in view
                                       of the fact that you are not here legally, and I am
                                       sure that INS is going to try to deport you. And if
                                       you are deported, there is no way for you to comply
                                       with the conditions of probation, so I don’t think a
                                       jury will give you probation.


   1
     Counsel apparently had advised appellant of the adverse parole consequences arising from a
conviction for aggravated sexual assault. See Tex. Gov’t Code Ann. § 508.145(d) (West Supp.
2005), § 508.149(a)(8) (West 2004).

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                                          At any rate, you can either plead guilty or not
                                          guilty. You can either have a trial before me or the
                                          jury, either one. Whether you plead guilty or not
                                          guilty, it doesn’t make any difference to me
                                          whichever one you do.


Appellant again attempted to discuss the evidence with the court, and he indicated his willingness

to “plead guilty to 10 years if they drop the aggravated charge.” A recess was taken to allow

appellant and his attorney to confer.

               After the recess, the court again asked appellant for his plea. Appellant replied, “If

I state that I’m guilty, how much are you going to offer?” The court answered, “I don’t know. I

don’t know anything about the facts of the case.” Appellant then said, “Not guilty.” After noting

appellant’s plea, the court asked counsel if he and appellant had conferred regarding the question of

a jury or bench trial. Counsel replied, “Yes. My client signed this jury waiver. I’m not in full

agreement, but it is his important choice.” After obtaining appellant’s acknowledgment that he had

conferred with counsel and wished to waive trial by jury, the court accepted the pleas and the jury

waiver, and the trial began later that day.

               There is no dispute that appellant waived his right to jury trial in person in writing

in open court, as required by statute. See Tex. Code Crim. Proc. Ann. art. 1.13(a) (West 2005).

Appellant contends, however, that the waiver was involuntary because he was erroneously told by

the trial court that he would not receive probation from a jury because he was in this country

unlawfully. Appellant argues that although the trial court was not required to admonish him

regarding his eligibility for probation, having undertaken to do so the court was obliged to give him

accurate information. See Ex parte Williams, 704 S.W.2d 773, 777 (Tex. Crim. App. 1986) (holding

                                                  3
that erroneous admonishment that defendant was eligible for court-ordered probation rendered guilty

plea involuntary).

                Contrary to appellant’s contention, the trial court did not tell him that he would not

receive probation from a jury. What the court told appellant was that a jury could give him

probation, but was unlikely to do so given his immigration status. Moreover, defense counsel stated

on the record that he had informed appellant that the trial court was not permitted to give probation

for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(E) (West Supp.

2005). Counsel also made it clear that he had attempted to dissuade appellant from waiving his right

to a jury trial, and it is reasonable to assume that in doing so he informed appellant that his only hope

for probation was a jury recommendation.

                Appellant relies on the opinion in Ramirez v. State, 655 S.W.2d 319, 321-22 (Tex.

App.—Corpus Christi 1983, no pet.). In that case, the defendant waived trial by jury and pleaded

guilty to aggravated robbery after being admonished by the trial court that he would be eligible for

probation. Id. at 320. In fact, aggravated robbery is another offense for which a trial court cannot

grant probation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(F). The appellate court held

that the trial court’s erroneous admonishment rendered the guilty plea involuntary because it was

clear from the record that the defendant was seeking probation from the court. Ramirez, 655 S.W.2d

at 321.

                Ramirez is distinguishable from this case in two respects. First, appellant pleaded not

guilty and thus the statutory duty to admonish was not invoked. See Tex. Code Crim. Proc. Ann. art.




                                                   4
26.13 (West Supp. 2005). Second, there was no affirmative misstatement of the law by the court in

this cause.

               The record before us shows that appellant understood his right to a jury trial and

waived it after being advised by counsel of the effect the waiver would have on his eligibility for

probation. Appellant’s decision to execute the jury waiver in the face of this advice demonstrates

that probation was not an important factor in appellant’s decision. We conclude that on this record,

the trial court’s remarks did not render the jury waiver involuntary.

               The points of error are overruled and the judgments of conviction are affirmed.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: January 12, 2006

Do Not Publish




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