                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
                                                                    No. 08-10-00152-CR
                                                 §
                                                                        Appeal from
EX PARTE: DAVID VASQUEZ                          §
                                                                     65th District Court
                                                 §
                                                                 of El Paso County, Texas
                                                 §
                                                                  (TC# 980D09457-65-1)
                                                 §

                                         OPINION

       David Vasquez appeals the trial court=s denial of his application for writ of habeas corpus.

Finding no error, we affirm.

                                   FACTUAL SUMMARY

       Appellant was indicted by a grand jury on October 3, 1998 for cocaine possession, less

than one gram. On March 8, 1999, he pled no contest to the charged offense as part of a plea

agreement whereby the State sought deferred adjudication for a period not to exceed ten years.

As part of the same negotiated agreement, the State agreed to prosecute the offense, which is

generally a state jail felony, as a Class A misdemeanor under Texas Penal Code Section 12.44(b).

After executing the requisite admonishments and waivers, the court accepted Appellant=s plea,

and entered an order deferring adjudication of guilt and placing Appellant on community

supervision for a period of two years. As part of his community supervision, Appellant was

required to avoid drug use and intoxication, report monthly to a community supervision officer,

complete two hundred hours of community service, pay several enumerated fines, and attend
specified drug treatment programs. There was no appeal from the deferred adjudication order.

       On February 28, 2001, less than a month before the termination of community

supervision, the State filed a motion to adjudicate guilt, alleging that Appellant had violated his

community supervision agreement by: (1) introducing cocaine into his body; (2) failing to

report on fifteen separate occasions; (3) failing to pay numerous fines; (4) failing to participate in

the required community service; (5) failing to report to a program licensed by the Texas

Commission of Alcohol and Drug Abuse; (6) failing to report to the Treatment Alternatives to

Incarceration Program; and (7) failing to report to Alcoholics Anonymous/Narcotics Anonymous.

 On June 25, 2001, the court entered judgment revoking community supervision and adjudicating

Appellant guilty of the offense of possession of a controlled substance - less than one gram of

cocaine, a Class A misdemeanor. The court then sentenced him to 180 days in the El Paso

County Detention Facility. Appellant did not appeal.

       Nine years later, Appellant filed an application for writ of habeas corpus pursuant to

Texas Code of Criminal Procedure Article 11.072 and Article 8, Section 5 of the Texas

Constitution, alleging:

       Applicant, David Vasquez, faces removal from the United States by virtue of a
       nolo contendere plea he entered in cause number 980D09457 to the offense of
       possession of less than 1 gram of cocaine. This Order was rendered March 8,
       1999, at which time the 65th Judicial District Court deferred the adjudication of
       Vasquez= guilt and placed him on community supervision for a period of 2 years
       pursuant to Texas Penal Code Section 12.44(b)

Essentially, Appellant complained that he faced removal proceedings due to his 1999 no contest

plea. He argued that he received ineffective assistance from his trial counsel at the original

proceeding, rendering his plea involuntary.         He also alleged that his original plea was


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involuntary because the trial court failed to admonish him regarding the adverse immigration

consequences associated with his plea. The State responded that the trial court lacked subject

matter to hear the application under Article 11.072 because Appellant=s probation had previously

been revoked and he was adjudicated guilty and sentenced to jail at that time.

       The trial court denied Appellant=s application, finding that the order placing him on

community supervision was superceded by the final judgment revoking his community

supervision and adjudicating him guilty of the offense. This appeal follows.

                                 AVAILABILITY OF RELIEF

       Appellant states his sole issue on appeal as, Athe Trial Court erred in ruling that it did not

possess subject-matter jurisdiction to entertain Appellant Vasquez= article 11.072 writ

application.@ Initially, we note that the trial court did not dismiss Appellant=s application for

want of subject matter jurisdiction. In fact, the court=s order expressly recognized that it had

original jurisdiction to entertain writs of habeas corpus under the authority granted by Article V,

Section 8 of the Texas Constitution and under Article 11.05 of the Texas Code of Criminal

Procedure. See Ex parte Hargett, 819 S.W.2d 866, 867 (Tex.Crim.App. 1991). The trial court

determined that, AVasquez=s application, erroneously filed under article 11.072 of the Code of

Criminal Procedure, has invoked this Court=s original habeas jurisdiction.@ Rather than denying

relief for want of subject matter jurisdiction, the trial court denied Appellant=s application on the

merits because his original community supervision was revoked and he was sentenced to a period

of confinement in jail.

       Article 11.072 of the Texas Code of Criminal Procedure establishes the procedures for an

application of writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks

                                                -3-
relief from a judgment of conviction ordering community supervision.             See TEX.CODE

CRIM.PROC.ANN. art. 11.072 (West 2005). At the time the application is filed, the applicant

must be, or have been, on community supervision, and the application must challenge the legal

validity of: (1) the conviction for which or order in which community supervision was imposed;

or (2) the conditions of community supervision. Id. at ' 2(b). In any case in which the trial

court does not determine the application is frivolous, the court must enter findings of fact and

conclusions of law. See id. at ' 7. Additionally, Section 8 provides that if the trial court denies

the application Ain whole or in part, the applicant may appeal under Article 44.02 and Rule 31,

Texas Rules of Appellate Procedure.@ See id. at ' 8.

       In his writ application, Appellant challenged the legality of his original 1999 guilty plea

to the Class A misdemeanor offense of cocaine possession which resulted in an order granting

deferred adjudication community supervision for a period of two years.           Neither his writ

application nor his brief on appeal allege error with respect to the 2001 order which revoked his

community supervision and adjudicated him guilty of the charged offense. All of his arguments

focus on Article 11.072 and the original plea and ignore the fact that Appellant was subsequently

adjudicated guilty. According to Appellant, because the wording of Article 11.072 applies to an

applicant who is on, or Aha[s] been on,@ community supervision, the plain meaning encompasses

situations such as his because Appellant Aha[s] been on@ community supervision. Next, he relies

on the absence of any other post-conviction writ procedure under Texas law which operates to

deprive a convicting court of subject matter jurisdiction under Article 11.072 once jurisdiction

attaches under this statute.

       Appellant relies heavily on the Court of Criminal Appeals decision in Villanueva v. State,

                                               -4-
252 S.W.3d 391 (Tex.Crim.App. 2008):

       By enacting Article 11.072, it is clear that the Legislature intended Article 11.072
       to provide the exclusive means by which the district courts may exercise their
       original habeas jurisdiction under Article V, Section 8 of the Texas Constitution
       in cases involving an individual who is either serving a term of community
       supervision or who has completed a term of community supervision.

But Villanueva does not establish that Article 11.072 is applicable because that case involved a

writ filed prior to the appellant=s adjudication of guilt. See Villanueva, 252 S.W.3d at 391; see

also Arreola v. State, 207 S.W.3d 387, 389 (Tex.App.--Houston [1st Dist.] 2006, no

pet.)(holding that court had jurisdiction over appellant=s Article 11.072 writ application where

appellant filed a writ of habeas corpus challenging the voluntariness of his guilty plea in response

to the state=s motion to adjudicate guilt, even though the writ was later denied and subsequently

appellant pled true to the allegations in the state=s motion to revoke and was adjudicated guilty),

citing to Kniatt v. State, 206 S.W.3d 657 (Tex.Crim.App. 2006)(holding that court had

jurisdiction to hear pre-conviction application for writ of habeas corpus that was filed by

applicant while applicant was on deferred adjudication community supervision even though trial

court did not rule on application until after applicant was adjudicated guilty). None of the cases

cited by Appellant permits a writ under Article 11.072 after revocation and adjudication of guilt.

       If a district court denies habeas relief under Article 5, Section 8 of the Texas Constitution,

 the applicant may appeal the ruling to this court. Hargett, 819 S.W.2d at 868. Vasquez has

indeed appealed, but he has not assigned error as to the denial of relief on the merits. In the

interest of justice, we have the authority to entertain the argument on rehearing. Rochelle v.

State, 791 S.W.2d 121, 124 (Tex.Crim.App. 1990).

The judgment of the trial court is affirmed.

                                               -5-
January 25, 2012                            __________________________________________
                                            ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior)

(Do Not Publish)




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