                           NUMBER 13-11-00406-CR

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                     Appellant,

                                         v.

MARCELINO GUERRERO,                                                       Appellee.


               On appeal from the Count Court at Law No. 4
                       of Hidalgo County, Texas.


                           MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
             Memorandum Opinion by Chief Justice Valdez

      In a separate cause to this appeal, appellee, Marcelino Guerrero, pleaded guilty

to the offense of possession of two ounces or less of marihuana in 1998. See TEX.

HEALTH & SAFETY CODE ANN. § 481.121 (West 2010). In that case, he was sentenced to

deferred adjudication community supervision for a term of 180 days and was assessed

a $200 fine. Guerrero, seeking habeas corpus relief, filed a motion to vacate the 1998

judgment. See TEX. CODE CRIM. PROC. ANN. art. 11.072 §1 (West 2005). The habeas
court vacated the judgment on May 31, 2011. In this appeal, the State challenges the

habeas court’s judgment by three issues. We affirm.

                               I.     STANDARD OF REVIEW

       We generally review a trial court’s decision on an application for habeas corpus

relief under an abuse of discretion standard of review. See Ex parte Cummins, 169

S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.); see also Ex parte Garcia, 353

S.W.3d 785, 787 (Tex. Crim. App. 2011) (stating that the Guzman standard applies to

appellate review of habeas corpus proceedings) (citing Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997)). An applicant seeking post-conviction habeas corpus

relief bears the burden of establishing by a preponderance of the evidence that the facts

entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).

We consider the evidence presented in the light most favorable to the habeas court’s

ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). This deferential

review applies even when the habeas court’s factual findings are implied rather than

explicit and are supported by the record. Ex parte Wheeler, 203 S.W.3d 317, 325–26

(Tex. Crim. App. 2006). “There is less leeway in an article 11.072 context to disregard

the findings of a trial court.” Ex parte Garcia, 353 S.W.3d at 787–88. In Guzman, the

court of criminal appeals stated:

              As a general rule, the appellate courts . . . should afford almost total
       deference to a trial court’s determination of the historical facts that the
       record supports especially when the trial court’s fact findings are based on
       an evaluation of credibility and demeanor. The appellate court . . . should
       afford the same amount of deference to trial courts’ rulings on “application
       of law to fact questions,” also known as “mixed questions of law and fact,”
       if the resolution of those ultimate questions turns on an evaluation of
       credibility and demeanor.

Guzman, 955 S.W.2d at 89.

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                                    II.    DISCUSSION

       By three issues, the State contends that the habeas court abused its discretion

by granting relief to Guerrero because he failed to present any evidence to support his

claim, the record reflects that he voluntarily waived his right to counsel in the 1998 case,

and the trial court was not required to admonish him of the consequences of his plea

pursuant to article 26.13 of the Texas Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. art. 26.13 (West Supp. 2011).

       At the habeas corpus hearing, the habeas court heard from the State and

defense counsel regarding the facts of the case. The general rule is that an attorney’s

statements on the record, as an officer of the court, are considered evidence unless an

objection is made. See Holloway v. Arkansas, 435 U.S. 475, 485–86 (1978); In re M.N.,

262 S.W.3d 799, 804 (Tex. 2008). The State neither objected to defense counsel’s

recitation of the facts nor to the habeas court’s statement that it did not need to hear

testimony from appellant. Therefore, to the extent that the State now complains on

appeal that the habeas court could not rely on defense counsel’s statements as

evidence, we conclude that the State has not preserved that issue for review. See TEX.

R. APP. P. 33.1(a).    Therefore, the habeas court was free to depend on defense

counsel’s statements as evidence in this case. See Holloway, 435 U.S. at 485–86; In re

M.N., 262 S.W.3d at 804. We overrule the State’s first issue.

       At the habeas hearing held on March 28, 2011, defense counsel informed the

habeas court that at the time that Guerrero pleaded guilty to possession of marihuana in

1998, he was an eighteen-year-old junior in high school. Defense counsel told the

habeas court that Guerrero completed his probation, and that the plea is now affecting



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his “legal status” in the United States. According to defense counsel, Guerrero has

been in the United States since he was twelve years old.

        The habeas court recalled that during the time that Guerrero pleaded guilty, the

defendants “would line up” and “Aida and Hector would sign them up without an

attorney.” The habeas court recognized that “with 9/11 we make sure everyone has an

attorney when he pleas on his case.”

        Defense counsel argued that if Guerrero had been provided with an attorney, he

would have been properly admonished concerning the immigration effects of pleading

guilty to the charged offense.1 The State argued that the record reflected that Guerrero

knowingly and freely signed “the Waiver of Counsel on his Presentence Investigation

Report” and that there was “nothing in the record to suggest that he didn’t understand

what he was doing.” The habeas court apparently then orally granted habeas relief off

the record. The State filed a motion to reconsider the ruling on the defendant’s motion

to vacate the judgment on April 4, 2011.

        The habeas court held a hearing on the State’s motion to reconsider on April 15,

2011. At that hearing, the State presented the waiver of counsel signed by Guerrero

when he pleaded guilty to possession of marihuana. Defense counsel stated that the

prosecutor offered Guerrero the admonishment papers “indicating that if he pleaded

guilty on that day [the State] would recommend a six-month deferred adjudication

sentence which [Guerrero] signed off saying that he would plead” and the prosecutor

did not inform Guerrero of the consequences of pleading guilty and waiving counsel.

Defense counsel explained that: (1) Guerrero had not been admonished of his rights as

        1
            There is nothing in the record regarding whether Guerrero requested an attorney in the 1998
case.


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a non-citizen before pleading guilty to the charged offense; (2) Guerrero was never

informed of the consequences of waiving his right to counsel; (3) Guerrero was not

informed of the immigration consequences of pleading guilty to the charged offense; (4)

appellant is now facing deportation due to his guilty plea; (5) there is nothing the record

showing that he had been admonished pursuant to article 26.13 concerning the

consequences of pleading guilty; (6) no one asked Guerrero about his immigration

status before he pleaded guilty; and (7) Guerrero was not aware of the immigration

consequences before he pleaded guilty. Defense counsel advised the habeas court

that Guerrero was available to testify. Defense counsel argued that the trial court in the

underlying case should have inquired into Guerrero’s citizenship status and appointed

counsel to explain the immigration consequences of pleading guilty upon discovering

that he was not a citizen.

       It is well established that an accused may waive his right to counsel. Williams v.

State, 252 S. W. 3d 353, 356 (Tex. Crim. App. 2008). For a waiver of counsel to be

valid, it must be voluntarily and knowingly made. Id. Waiver may be defined as “an

intentional relinquishment or abandonment of a known right or privilege.” Johnson v.

Zerbst, 304 U.S. 458, 464 (1938).        “Where the defendant appears in court and

confesses his guilt, the issue is not whether the trial court admonished the accused of

the dangers and disadvantages of self-representation, but rather, whether there was a

knowing, voluntary and intelligent waiver of counsel.” Blocker v. State, 889 S.W.2d 506,

508 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (quoting Johnson v. State, 614

S.W.2d 116, 119 (Tex. Crim. App. 1981) (on rehearing)) (internal quotations omitted).




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        In this case, there was evidence presented to the habeas court that Guerrero

waived his right to counsel only after he was told that the State would give him deferred

adjudication. There was also evidence presented that Guerrero was not aware of his

rights as a non-citizen and that he was an eighteen-year-old junior in high school.

There was nothing in the record showing that anyone explained the consequences of

waiving his right to counsel.2 The evidence further established that no one inquired into

Guerrero’s immigration status or that he was told that pleading guilty to the charged

offense could affect his immigration status. The habeas court recalled the procedures

that were followed during the time period when Guerrero pleaded guilty to the charged

offense. The State cited the waiver of counsel form signed by Guerrero as definitive

evidence that he knowingly and voluntarily waived his right to counsel; Guerrero’s

attorney stated that Guerrero signed the form after the State made the offer of deferred

adjudication implying that he would not have signed the form without the offer from the

State. See Kniatt, 206 S.W.3d at 664 (providing that in a habeas case, the trial court

can “believe or disbelieve any of the witnesses. . . .”). As the fact-finder, it was within

the habeas court’s province to weigh and resolve the conflicts in the evidence. See Ex

parte Wheeler, 203 S.W.3d at 325–26.


        2
          The trial court admitted State’s exhibit 4, waiver of presentence investigation, signed by
Guerrero. It states:

                  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. Understanding my right to
        have counsel appointed for me free of charge if I am not financially able to employ
        counsel, I wish to waive that right and request the court to proceed with my case without
        an attorney being appointed for me. I hereby waive my right to counsel.

The trial court also admitted State’s exhibit 4, judgment and waiver of counsel, stating, “If the Defendant
did not appear with counsel, the Defendant appeared in person, and knowingly, intelligently and
voluntarily waived the right to representation by counsel.” This document is not signed by Guerrero.


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        From the evidence presented, the habeas court may have found that Guerrero

had not been properly admonished by an attorney concerning the immigration

consequences of pleading guilty after inferring that the prosecutor told Guerrero he

would get deferred adjudication only if he signed the waiver of counsel form. Viewing

the evidence in the light most favorable to the ruling, we conclude that the habeas court

may have concluded that Guerrero did not knowingly and voluntarily waive his right to

counsel.     See Williams v. State, 252 S. W. 3d 353, 357 (Tex. Crim. App. 2008)

(“[C]ourts indulge every reasonable presumption against waiver and . . . do not presume

acquiescence in the loss of fundamental rights.                  The trial judge is responsible for

determining whether a defendant’s waiver is knowing, intelligent, and voluntary.”)

(internal quotations omitted). Accordingly, the habeas court did not abuse its discretion

in granting habeas corpus relief in this case. We overrule the State’s second issue.

        By its third issue, the State contends that Guerrero was not entitled to an

admonishment pursuant to article 26.13 of the Texas Code of Criminal Procedure,

which it argues only requires a trial court to admonish a defendant of the immigration

consequences of pleading guilty to a felony offense.3 See TEX. CODE CRIM. PROC. art.

26.13; see also Villanueva v. State, No. 13-05-00114-CR, 2008 Tex. App. LEXIS 7554,

at *18 (Tex. App.—Corpus Christi Oct. 9, 2008, pet. ref’d.) (mem. op., not designated for

publication) (“[T]he requirements of article 26.13 are not applicable to misdemeanor

offenses.”) ((citing State v. Jimenez, 987 S.W.2d 886, 889 (Tex. Crim. App. 1999) (en

banc); Alvear v. State, 25 S.W.3d 241, 246 (Tex. App.—San Antonio 2000, no pet.);

        3
         We note that the evidence in the record supports the habeas court’s finding that the trial court in
the 1998 case did not admonish Guerrero of the immigration consequences of pleading guilty to the
offense. Moreover, the habeas court may have relied on this evidence as further support that Guerrero’s
plea was not voluntary.


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Shipley v. State, 828 S.W.2d 475, 480 (Tex. App.—El Paso 1992, pet. ref’d); Gibson v.

State, 747 S.W.2d 68, 69 (Tex. App.—Corpus Christi 1988, no pet.)).          However,

because we have concluded that the habeas court properly granted habeas corpus

relief on the basis that Guerrero did not voluntarily waive his right to counsel, which

does not depend on Guerrero’s rights under article 26.13, we need not address this

issue. See TEX. R. APP. P. 47.1.

                                   III.   CONCLUSION

      We affirm the habeas court’s order.

                                                       __________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
16th day of August, 2012.




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