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                                 MEMORANDUM OPINION


                                         No. 04-08-00256-CR

                                 EX PARTE Gilbert Leos ARENAS

                 From the 2nd 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 05-2113-CR
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 3, 2008

AFFIRMED

           Gilbert Leos Arenas appeals the trial court’s order denying relief in a habeas corpus

proceeding. In his application for a writ of habeas corpus, Arenas sought to set aside the order

placing him on deferred adjudication, arguing his plea was involuntary due to the ineffective

assistance of his counsel and the trial court’s failure to properly admonish him and that the order is

void because it was “outside the scope of authorized punishment.” We affirm the trial court’s denial

of relief.
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                                                  BACKGROUND

         Arenas was originally charged with one count of aggravated sexual assault and two counts

of indecency with a child by sexual contact. The trial court appointed Jesus Lopez to represent

Arenas. Arenas entered into a plea agreement that required him to plead guilty to injury to a child

in exchange for the State recommending deferred adjudication and dismissing the other charges. The

plea agreement contained a provision that Arenas would not be required to register as a sex offender.

The trial court ordered a presentence investigation and set a sentencing for September 8, 2006.

         At the sentencing hearing, the trial court announced to the attorneys that he would not

approve the plea agreement, stating, “I’m willing to accept the probation and I’m willing to put him

on probation; however, it’s going to need to be indecency by contact and he’ll need to register [as

a sex offender].” After a break in the proceedings, Arenas withdrew his plea to the injury to a child

charge and entered a plea of guilty to two counts of indecency with a child. The written plea

agreement Arenas signed recites the agreement as “7 years deferred adjudication probation[,] $2000

fine[,] up to 60 days confinement in county jail[,] sex offender evaluation and treatment[,] sex

offender registration.” The trial court accepted the plea, announced he would follow the plea

agreement, deferred adjudication, and placed Arenas on community supervision. Arenas signed the

conditions of community supervision the same day. Condition 35 required Arenas to register with

“designated law enforcement authorities” “per TCCP Chapter 62, Art. 62.01/62.12.”1

         In December 2007, while a motion to adjudicate Arenas’s guilt was pending, Arenas filed

an application for a writ of habeas corpus, contesting the validity of the order deferring adjudication

and placing him on community supervision. The trial court granted the writ and set the matter for


         … The reference is apparently to Chapter 62 of the Texas Code of Criminal Procedure, which is entitled “Sex
         1

Offender Registration Program.” See T EX . C O D E C RIM . P RO C . A N N . art. 62.001-.408 (Vernon 2006 & Vernon Supp.
2008).

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hearing. At the hearing, Arenas testified by affidavit that when he entered his plea he was unaware

he would be required to register as a sex offender and, had he known, he would have not entered a

plea of guilty. Arenas stated he was not present when the trial judge stated he would not accept the

first plea agreement, but would accept a probation recommendation to the indecency charge that

required Arenas to register as a sex offender. Arenas testified his attorney did not review the plea

papers for the indecency charges with him and never told him sex offender registration was

mandatory for those charges. Arenas acknowledged he signed the last page of the “new paperwork,”

but stated he assumed the paperwork was the same as had been explained during the injury to a child

plea proceedings, except for the different offense. He admitted he was made aware of the

registration requirement when the probation officer explained the conditions of his probation.

       Arenas also testified that sex offender registration was not mentioned during the plea hearing.

To bolster his argument, Arenas introduced a transcript of the plea hearing. The prosecutor informed

the trial court the plea agreement was for “[s]even years deferred adjudication probation, a $2,000

fine, up to 60 days confinement in the County Jail, sex offender evaluation and treatment, and sex

offender evaluation.” When asked, Arenas told the judge the plea agreement was stated correctly.

There is no express mention of sex offender registration on the record at the hearing, but the judge

warned Arenas he regarded “sex offender probation as a no-tolerance probation.” During the plea

hearing the trial court asked Arenas whether his signature appeared at the end of the “Waiver,

Stipulations and Admonishments for Plea of Guilty or No Contest.” Arenas responded that it did

and stated his lawyer reviewed the document with him before he signed it. Arenas also affirmatively

told the court that not only had his lawyer read the document to him, but Arenas had read it himself.

One paragraph of the document, in a section entitled “Sex Offender Registration,” states:




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        The Defendant is hereby admonished that if he is pleading guilty or nolo contendere
        to an offense listed in Chapter 62, Code of Criminal Procedure, the defendant, if
        sentenced to deferred adjudication . . . will be required to meet the registration
        requirements of Chapter 62, Code of Criminal Procedure. The Defendant hereby
        represent [sic] that, if applicable, he has been advised by his attorney regarding said
        registration requirements and understands same.

        The State introduced into evidence at the habeas hearing the affidavit of Arenas’s former

attorney, Jesus Lopez. Lopez testified he met with Arenas after the trial court rejected the initial plea

agreement and the second plea offer was made. He testified he explained to Arenas that “the big

difference between this plea offer and the previous offer was that it required sex offender

registration.” Lopez stated he “emphasized” sex offender registration was a requirement and Arenas

“was fully informed about the sex offender registration requirement.” Lopez stated that after

discussing all the options, Arenas said he would accept the plea bargain “even though it required sex

offender registration.” Lastly, Lopez stated he reviewed the conditions of probation with Arenas

before the entry of his plea and Arenas indicated he understood the requirements of probation.

        At the conclusion of the habeas hearing, the trial court denied relief. The court later signed

findings of fact and conclusions of law, including the following:

        Applicant’s trial counsel, Jesus Lopez, provided competent and effective counsel to
        the Applicant in that he, in particular, properly advised and admonished Applicant
        regarding sex offender registration requirements.

        The Court is familiar with Mr. Lopez and regards him as truthful and creditable [sic].

        Applicant signed the “Plea Agreement” paperwork which indicated “sex offender
        registration” beside the line that Applicant signed.

        Applicant signed the “Waivers, Stipulations and Admonishment for Plea of Guilty
        or No Contest” that contained three paragraphs under a bold headline explaining the
        requirements of sex offender registration and the failure to comply with that
        requirement.

        Applicant stated to the Court that he reviewed said paperwork with his attorney and
        that he himself had read it before he signed it.

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        Applicant stated to the Court that he understood all of the paperwork.

        Applicant was fully informed of sex offender registration requirements and the
        consequences of the failure to comply with said requirements.

        Applicant’s plea of guilty was voluntarily and intelligently made to the Court after
        having been properly admonished both by Applicant’s counsel and by the Court.

        Applicant understood the plea papers he signed after Applicant’s trial counsel
        thoroughly reviewed them with Applicant.

        [T]he testimony of applicant was not creditable [sic].

Arenas timely appealed the trial court’s order denying relief.

                                        STANDARD OF REVIEW

        We review the trial court’s ruling on a habeas corpus claim for abuse of discretion. Kniatt

v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We review the record in the light most

favorable to the trial court’s ruling and give almost total deference to the trial court’s factual findings

that are supported by the record, even when the evidence is submitted in written affidavits. Ex parte

Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006); State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). We review the trial court’s legal rulings de novo unless the trial court’s

supported fact findings are dispositive of the legal issues. Kelly, 204 S.W.3d at 818.

                               INEFFECTIVE ASSISTANCE OF COUNSEL

        Arenas contends his trial counsel rendered ineffective assistance by failing to inform Arenas

that sex offender registration was a requirement of his plea. Arenas argues the plea was therefore

involuntary.

        To prevail on this ground, Arenas was required to prove by a preponderance of the evidence

that his counsel’s performance was deficient — that it fell below the standard of professional norms.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex.


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Crim. App. 2007).      Arenas was also required to show he was prejudiced by the deficient

performance. Strickland, 466 U.S. at 687; Garza, 213 S.W.3d at 347.

       The trial court found Arenas’s testimony that counsel did not tell him he would be required

to register as a sex offender was not credible. Instead, the trial court credited the testimony of

Arenas’s attorney, Jesus Lopez, finding he fully explained to Arenas that sex offender registration

was part of the plea offer. The trial court’s finding that Lopez advised Arenas regarding the

registration requirements is supported by the record. Accordingly, Arenas did not meet his burden

to show deficient performance and the trial court did not abuse its discretion in denying habeas relief

on this claim.

                                     COURT ADMONISHMENTS

       Arenas next contends his plea was involuntary because the trial court failed to admonish him

of the sex offender registration requirement before accepting his plea.

       Before accepting a plea of guilty or nolo contendere to an offense subject to the sex offender

registration requirements of Chapter 62 of the Texas Code of Criminal Procedure, the trial court

must “substantially comply” with a requirement to admonish the defendant that he will be required

to meet the Chapter 62 registration requirements. TEX . CODE CRIM . PROC. ANN . art. 26.13 (a)(5),

(h) (Vernon Supp. 2008). The court may make the admonition in writing if it “receive[s] a statement

signed by the defendant and the defendant’s attorney that [the defendant] understands the

admonishments and is aware of the consequences of his plea.” Id. art. 26.13(d).

       The record contains written admonishments that include information about the registration

requirements of Chapter 62. The “admonishments” contain the statement: “I GILBERT LEOS

ARENAS, Defendant, do hereby acknowledge that prior to entering my plea of guilty or nolo

contendere, I have read and I understand the above admonishments and that I am aware of the

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consequences of my plea.” Arenas’s and his attorney’s signatures immediately follow the quoted

statement. During the plea hearing, Arenas told the trial court he had read the document and

understood it. The trial court’s finding that Arenas was properly admonished by the court is thus

supported by the record, and the trial court did not abuse its discretion in finding Arenas’s plea was

voluntarily and intelligently made.

                                           VOID ORDER

       Arenas next argues the order placing him on deferred adjudication is void because one of its

provisions was “outside the scope of authorized punishment.” Arenas claims the order purports to

exempt him from sex offender registration and, because the trial court had no authority to do so, the

order is void. We disagree.

       Arenas pled guilty to indecency with a child by contact. See TEX . PENAL CODE ANN .

§ 21.11(a) (Vernon 2003). Except under circumstances not applicable here, the trial court is

authorized to defer adjudication and place a defendant on community supervision for this offense.

See TEX . CODE CRIM . PROC. ANN . art. 42.12 sec. 5 (Vernon Supp. 2008). The court is authorized

to impose a fine and any reasonable condition of community supervision allowed for a person placed

on community supervision after conviction. Id. A defendant placed on deferred adjudication for

indecency with a child by contact is required to comply with the registration requirements of Chapter

62. See id. § 62.001(5)(A) (Vernon Supp. 2008); § 62.051 (Vernon 2006).

       At the plea hearing, the trial court accepted Arenas’s guilty plea and announced it would

follow the plea agreement, which contained a sex offender registration requirement. The court

ordered Arenas placed on deferred adjudication community supervision for seven years, fined him

$2,000, and advised him he would be subject to the terms and conditions of probation, which Arenas

stated he had already reviewed with his lawyer.

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         The written Order of Deferred Adjudication first contains recitals regarding the case and then

states the trial court’s findings and orders. Forty-six terms and conditions of community supervision

are referred to in the orders and attached to the order, including condition 35, which requires Arenas

to register as a sex offender. Arenas’s complaint arises from one of the recitals, which states, “Sex

Offender Registration Requirements does not apply to the Defendant.” Arenas contends the entire

order is void because the trial court was without authority to exempt Arenas from the registration

requirement. Contrary to Arenas’s assertion, the court’s order did not relieve Arenas of the obligation

to register as a sex offender. The erroneous recital comes before the trial court’s findings and orders

and is not referred to in the court’s findings and orders.2 The orders clearly impose a requirement that

Arenas register as a sex offender. Because the trial court’s order did not relieve Arenas of his

obligation to register as a sex offender, we overrule Arenas’s complaint and hold the trial court did

not abuse its discretion in denying habeas relief on this ground.

         The trial court’s order is affirmed.

                                                                     Steven C. Hilbig, Justice

Do not publish




         2
           … The language was an apparent attempt to comply with article 42.01 Sec. 1 [27] of the Code of Criminal
Procedure, which requires a judgment in cases involving Chapter 62 to contain the age of the victim and a statement that
sex offender registration applies to the defendant. See T EX . C O D E C RIM . P RO C . A N N . art. 42.01 § 1[27] (Vernon 2006).
Because the Order of Deferred Adjudication is not a judgment, see id. art. 42.01 § 1, such statement is not required and
we treat it as surplusage.

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