                                    NUMBER 13-15-00157-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI – EDINBURG

                      EX PARTE SERGIO RODRIGUEZ CUELLAR


                        On appeal from the 92nd District Court of
                               Hidalgo County, Texas.


                                MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
               Memorandum Opinion by Justice Garza
       The State of Texas appeals from the trial court’s order granting appellee Sergio

Rodriguez Cuellar’s application for writ of habeas corpus.1 See TEX. CODE CRIM. PROC.

ANN. art. 11.072 (West, Westlaw through 2015 R.S.). By a single issue, the State argues

that the trial court abused its discretion in granting habeas relief because: (1) the record


       1   Appellee did not file a response brief to aid us in the disposition of this case.
does not support the trial court’s findings of fact and conclusions of law; and (2) the stated

grounds for relief allege only violations of state statutes, and such claims are not

cognizable on habeas corpus. We reverse and render.

                                      I. BACKGROUND

       On March 4, 2003, pursuant to a plea bargain, appellee pleaded guilty to evading

arrest with a vehicle, a state-jail felony offense. See TEX. PENAL CODE ANN. 38.04 (West,

Westlaw through 2015 R.S.). Pursuant to the plea bargain, the trial court imposed

punishment at two years’ confinement and a $750.00 fine, suspended the sentence, and

placed appellee on community supervision for five years. At the plea hearing, appellee’s

appointed counsel waived service of the indictment two days prior to arraignment, see

TEX. CODE CRIM. PROC. ANN. art. 26.03 (West, Westlaw through 2015 R.S.), and a ten-

day period of preparation before a plea or trial, see id. art. 1.051(e) (West, Westlaw

through 2015 R.S.).

       On January 7, 2015, appellee filed an amended application for writ of habeas

corpus.   In his application, appellee argued that he was “illegally restrained by the

collateral consequences” of his prior conviction because of his inability “to continue his

status as a legal resident of the United States.” Appellee argued that he was “denied due

process of law and right to counsel as he was induced into pleading guilty without any

notice of his arraignment, service of the indictment, a reading of the indictment, and

adequate time to prepare with court-appointed counsel.” Specifically, appellee argued

that he was denied the two-day period between receipt of the indictment and arraignment

required by article 26.03 and the ten-day preparation for trial required by article 1.051(e).

See id. arts. 1.051(e), 26.03.



                                              2
           On February 19, 2015, the trial court held a hearing on appellee’s application.2

Based on findings later issued by the trial court, the State argued at the hearing that: (1)

the reading of the indictment was waived; (2) even if the reading of the indictment was

not waived, such an error is a violation of a statute, not a violation of a constitutional

provision, and is thus not a cognizable issue on habeas corpus review; (3) the statutory

requirement of ten days to prepare with court-appointed counsel was waived; and (4)

even if the statutory requirement for a ten-day preparation period was not waived, such

an error is not a violation of a constitutional provision and is therefore not a cognizable

issue on habeas corpus review.

           On March 10, 2015, the trial court granted appellee the requested relief and set

aside his conviction. The trial court issued the following findings of fact and conclusions

of law:

           Based on the Applicant’s pleadings, evidence, and the record as a whole,
           THE COURT FINDS THAT:

           A.        Applicant was not served with a copy of his indictment, was not read
                     the indictment, and did not waive the reading of the indictment.

           B.        Applicant did not have enough time with counsel to adequately
                     prepare for his trial.

           THE COURT CONCLUDES THAT:

           C.        Applicant’s plea and conviction complained of were obtained in
                     violation of the Applicant’s right to due process, in violation of the 5th
                     and 14th Amendments of the Constitution of the United States, Art.
                     1, sec. 13 and 19 [of] the Texas Constitution, and Texas Code of
                     Criminal Procedure Art. 1.04, and the Court so concludes.

           The State appealed. However, the reporter’s record did not include a transcript of



           2   For reasons explained more fully below, there is no reporter’s record of the February 19, 2015
hearing.

                                                        3
the February 19 hearing. On June 30, 2015, this Court abated the appeal and remanded

to the trial court to determine whether a reporter’s record of the February 19, 2015 hearing

could be recreated. The trial court held a hearing on July 23, 2015. At the hearing,

counsel for appellee and counsel for the State addressed the trial court. No witnesses

were presented. Appellee’s counsel and the State’s counsel discussed and agreed

generally regarding what occurred at the February 19, 2015 hearing. Appellee’s counsel

stated, “Mr. Cuellar did not testify, but without objection from counsel for the State, we

proffered his testimony in alignment with the pleadings.”

       On August 4, 2015, a supplemental clerk’s record was filed with this Court, which

contained the following findings of fact:

       1.     On February 19, 2015, this Court called for an evidentiary hearing on
              a writ application.

       2.     On February 19, 2015, Applicant Sergio Rodriguez Cuellar argued
              his pleadings, proffered the Applicant’s testimony without objection,
              and obtained the Court’s judicial notice of all documents in the
              Court’s file.

       3.     On February 19, 2015, the State argued that this Court deny relief
              based on the following arguments:

              a.     The reading of the indictment was waived, and the statutory
                     requirement of 10 days to prepare with court-appointed
                     counsel was waived.

              b.     Even if the reading of the indictment was not waived, such an
                     error is not of constitutional dimension.

              c.     Even if the statutory requirement of 10 days to prepare with
                     court-appointed counsel was not waived, such error is not of
                     constitutional dimension.

       4.     Due to a technical error, the electronic stenograph machine used by
              this Court’s official court reporter failed to record the hearing and is
              unrecoverable.

       5.     On March 10, 2015, this Court granted the writ application in its

                                             4
      order, and set aside Applicant Sergio Rodriguez Cuellar’s conviction.

6.    On March 30, 2015, the State filed its notice of appeal of this Court’s
      order granting Applicant Sergio Rodriguez Cuellar relief.

7.    On April 10, 2015, the State filed its request for the reporter’s record.

8.    On June 30, 2015, the Thirteenth Court of Appeals entered an Order
      of Abatement, ordering this Court to conduct a hearing to determine:

      (1)    If the appellant has timely requested a reporter’s record;

      (2)    If, without the appellant’s fault, a significant exhibit or a
             significant portion of the court reporter’s notes and records
             has been lost or destroyed or—if the proceedings were
             electronically recorded—a significant portion of the recording
             has been lost or destroyed or is inaudible;

      (3)    If the lost, destroyed, or inaudible portion o[f] the reporter’s
             record, or the lost or destroyed exhibit, is necessary to the
             appeal’s resolution; and

      (4)    If the lost, destroyed, or inaudible portion of the reporter’s
             record cannot be replaced by agreement of the parties, or the
             lost or destroyed exhibit cannot be replaced either by
             agreement of the parties or with a copy determined by the trial
             court to accurately duplicate with reasonable certainty the
             original exhibit.

9.    On July 23, 2015, this Court conducted a hearing pursuant to the
      Thirteenth Court of Appeals’ Order of Abatement.

10.   This Court FINDS that as to (1), the State (Appellant) did not timely
      request the reporter’s record pursuant to Tex. R. App. P. 34.6(f) as
      the record shows that the State made said request 11 days after the
      time given the State to perfect appeal.

11.   This Court FINDS as to (2), without the State’s (Appellant’s) fault, a
      significant portion of the court reporter’s record is lost and/or
      destroyed. This significant portion referred to consists of the entirely
      [sic] of the evidentiary hearing conducted on February 19, 2015. Due
      to a technical error, the electronic stenography machine used the this
      [sic] Court’s official court reporter failed to record the entirety of said
      hearing and is unrecoverable.

12.   This Court FINDS as to (3), the lost and/or destroyed portion of the
      reporter’s record is necessary to the appeal’s resolution because the
      State had not filed a written response to Applicant Sergio Rodriguez

                                       5
             Cuellar’s writ application, and thus, the State’s arguments were
             solely given and preserved orally at said hearing.

      13.    This Court FINDS as to (4), the lost and/or destroyed portion of the
             reporter’s record can be replaced by agreement of the parties. The
             parties are in agreement as to the most important aspects of the
             hearing.

             The parties have agreed that on February 19, 2015, the Court took
             judicial notice of all documents in the Court’s file.

             The parties have agreed that on February 19, 2015, Applicant Sergio
             Rodriguez Cuellar argued his writ application and proffered the
             Applicant’s testimony without objection, in accord with his written
             Application for relief.

             The parties have also agreed that the State argued at the February
             19, 2015 hearing the following:

             a.    The reading of the indictment was waived.

             b.    Even if the reading of the indictment was not waived, such an
                   error is not of constitutional dimension.

             c.    The statutory requirement of 10 days to prepare with court-
                   appointed counsel was waived.

             d.    Even if the statutory requirement of 10 days to prepare with
                   court-appointed counsel was not waived, such an error is not
                   of constitutional dimension.

We reinstated the appeal on August 4, 2015.

                   II. STANDARD OF REVIEW AND APPLICABLE LAW

      For a court to reach the merits of an applicant’s claim on habeas corpus, the

applicant’s claim must be cognizable in habeas corpus. See Ex parte Perales, 215

S.W.3d 418, 419–20 (Tex. Crim. App. 2007). “[B]oth federal and Texas courts have

confined the scope of post-conviction writs of habeas corpus to jurisdictional or

fundamental defects and constitutional claims.” Ex parte Graves, 70 S.W.3d 103, 109

(Tex. Crim. App. 2002); see Ex parte Douthit, 232 S.W.3d 69, 71 (Tex. Crim. App. 2007)



                                          6
(“A writ of habeas corpus is available only for relief from jurisdictional defects and

violations of constitutional or fundamental rights.”). “Violations of statutes, rules, or other

non-constitutional doctrines are not recognized.” Ex parte Graves, 70 S.W.3d at 109; Ex

parte Sanchez, 918 S.W.2d 526, 527 (Tex. Crim. App. 1996) (“We have recognized that

a violation of a state statute in general is not a cognizable claim on habeas.”).

                                               III. DISCUSSION

        The State argues that: (1) the trial court’s findings of fact are not supported by the

record because appellee waived his rights to the reading of the indictment, the two-day

period before arraignment, and the ten-day preparation period before trial; and (2) the

rights at issue—the reading of the indictment, two-day notice requirement, and ten-day

preparation period—are granted by statute, and do not implicate constitutional violations.

Thus, according to the State, because appellee’s grounds for relief raise only alleged

violations of state statutes, his claims are not cognizable on habeas corpus. 3 See Ex

parte Graves, 70 S.W.3d at 109; Ex parte Sanchez, 918 S.W.2d at 527. We agree with

the State.

        The right to a reading of the indictment is established by article 26.11 of the code

of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.11.4 The two-day notice


          3 The Supreme Court of the United States has held that “when the deportation consequence is truly

clear, . . . the duty to give correct advice is equally clear.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010).
“To satisfy this responsibility, we . . . hold that counsel must inform her client whether his plea carries a risk
of deportation.” Id. at 374. Padilla does not apply retroactively to cases on collateral review. See Chaidez
v. United States, 133 S.Ct. 1103, 1113 (2013); Ex parte De Los Reyes, 392 S.W.3d 675, 678–79 (Tex.
Crim. App. 2013). Thus, “defendants whose conviction became final prior to [March 31, 2010] . . . cannot
benefit from [Padilla's ] holding.” Chaidez, 133 S.Ct. at 1113. Therefore, appellant cannot rely upon Padilla
in attempting to establish ineffective assistance of counsel in connection with a 2003 plea bargain.

        4   Article 26.11 provides:

        The name of the accused having been called, if no suggestion, such as is spoken of in the
        four preceding Articles, be made, or being made is disposed of as before directed, the

                                                        7
requirement is established by article 26.03. See id. art. 26.03.5 A court-appointed

counsel’s right to ten-days’ preparation is established by article 1.051(e) of the code of

criminal procedure. See id. art. 1.051(e).6 Thus, each of the rights asserted as grounds

for habeas relief are granted by state statutes, and violations thereof are therefore not

cognizable claims on habeas corpus. See Ex parte Graves, 70 S.W.3d at 109; Ex parte

Sanchez, 918 S.W.2d at 527. We sustain the State’s issue.

                                                IV. CONCLUSION

        We reverse the trial court’s order granting appellee’s application for a writ of

habeas corpus and render judgment denying the application and reinstating appellee’s

conviction.



                                                                DORI CONTRERAS GARZA,
                                                                Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of July, 2016.


        indictment shall be read, and the defendant asked whether he is guilty or not, as therein
        charged.

TEX. CODE CRIM. PROC. ANN. art. 26.11 (West, Westlaw through 2015 R.S.).

        5   Article 26.03 provides:

        No arraignment shall take place until the expiration of at least two entire days after the day
        on which a copy of the indictment was served on the defendant, unless the right to such
        copy or to such delay be waived, or unless the defendant is on bail.

Id. art. 26.03 (West, Westlaw through 2015 R.S).

        6   Article 1.051(e) provides, in pertinent part:

        An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the
        preparation time with the consent of the defendant in writing or on the record in open court.

Id. art. 1.051(e) (West, Westlaw through 2015 R.S.).

                                                            8
