DocketNumber： 11-04-00049-CR
Filed Date： 9/30/2004
Status： Precedential
Modified Date： 9/10/2015
11th Court of Appeals
Eastland, Texas
Opinion
Marcos Gallardo
Appellant
Vs. No. 11-04-00049-CR -- Appeal from Erath County
State of Texas
Appellee
On April 3, 2002, Marcos Gallardo entered a plea of guilty to the offense of indecency with a child by exposure. The trial court deferred adjudication of guilt, placed appellant on community supervision for 10 years, and assessed a $2,000 fine. On January 15, 2004, appellant filed an application for writ of habeas corpus pursuant to TEX. CODE CRIM. PRO. ANN. art. 11.072 (Vernon Supp. 2004 - 2005). The trial court issued an order in which it denied appellant=s application for writ of habeas corpus. It is from this order that appellant appeals. We affirm.
Appellant brings three issues on appeal challenging the trial court=s denial of his application for writ of habeas corpus. Appellant argues that the trial court improperly admonished him concerning the consequences of deportation, that he received ineffective assistance of counsel, and that newly-discovered evidence requires a reversal of his conviction. In its decision to deny appellant=s writ of habeas corpus, the trial court considered conflicting affidavits. The facts surrounding appellant=s entering a plea of guilty were contested. Accordingly, we will give deference to the trial court=s decision and uphold that decision absent an abuse of discretion. See Manzi v. State, 88 S.W.3d 240, 244 (Tex.Cr.App.2002).
In his first issue on appeal, appellant argues that the trial court improperly admonished him concerning the consequences of deportation. The record shows and appellant admits that, before entering his plea of guilty, he was given written admonishments as required by TEX. CODE CRIM. PRO. ANN. art. 26.13(a) (Vernon Supp. 2004 - 2005). TEX. CODE CRIM. PRO. ANN. art. 26.13(d) (Vernon 1989) allows the admonishments to be given orally or in writing. Appellant complains on appeal that the trial court did not orally admonish him that his plea of guilty could lead to his deportation because he is not a citizen of the United States. The record shows that appellant waived the trial court=s oral admonishments and indicated that he had read his rights and understood his rights.
Appellant further argues that the trial court misled him by stating that, if appellant complied with the terms of his community supervision, Athen this does not become a final conviction on your record.@ Appellant contends that, because of this statement, he believed he could not be deported. The trial court=s statement advises appellant of the effect of placing him on deferred adjudication. The trial court went on to explain to appellant the consequences of not abiding by the terms of his community supervision. These statements occurred after appellant indicated to the trial court that he had read and understood the written admonishments that he signed. Appellant further stated that he fully discussed the case with his trial attorney. We do not find that the trial court=s statement misled appellant concerning the possibility of deportation. Moreover, the record shows that appellant signed an affidavit stating that he had been advised that, by pleading guilty, Athere is a very strong likelihood that I will be deported from this country.@ The record shows that the trial court complied with the requirements of TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2004 - 2005) and that appellant was properly admonished concerning the consequences of his guilty plea. Appellant=s first issue on appeal is overruled.
In his second issue on appeal, appellant contends that his trial counsel was ineffective in advising appellant to enter a plea of guilty, in withholding information from the trial court, and in failing to properly research the case. When a defendant challenges the voluntariness of a plea as a result of ineffective assistance, we determine (1) whether trial counsel=s advice was within the range of competence demanded of attorneys in criminal cases and (2) whether there is a reasonable probability that, but for trial counsel=s errors, he would not have pleaded guilty and would have insisted upon going to trial. Ex Parte Moody, 991 S.W.2d 856 (Tex.Cr.App.1999).
The record shows that appellant signed a waiver of admonishments indicating that he understood his rights. Appellant further signed an affidavit stating that he had been advised of the possibility of deportation upon entering a plea of guilty. Appellant testified at the hearing that his trial counsel fully discussed the case with him and answered all of his questions. The record does not support appellant=s argument that his trial counsel withheld information from the trial court. The record further shows that, at the guilty plea hearing, appellant testified that his trial counsel discussed Apotential witnesses, potential evidence the [S]tate had, and discussed everything from the laboratory reports to the alleged victim.@ Appellant has not shown that he received ineffective assistance of counsel. Appellant=s second issue on appeal is overruled.
In his third issue on appeal, appellant argues that Anew evidence has been discovered that should be considered in reversing the judgment@ of the trial court. Appellant obtained a written statement from the chief of police at the time of the offense. The officer stated that he believed the incident between appellant and the victim was Aconsensual.@ Appellant was convicted of indecency with a child by exposure. TEX. PENAL CODE ANN. ' 21.11(a)(2) (Vernon 2003). It is an affirmative defense if the actor was not more than three years older than the victim and if the actor did not use duress, force, or a threat against the victim.[1] TEX. PENAL CODE ANN. ' 21.11(b)(1)(2) (Vernon 2003). TEX. PENAL CODE ANN. ' 21.11(a) (Vernon 2003) does not require that the State show that the offense was committed without the consent of the victim. See Black v. State, 26 S.W.3d 895, 898 (Tex.Cr.App.2000); see also Zubia v. State, 998 S.W.2d 226, 227 (Tex.Cr.App.1999). The Anew evidence@ does not establish that appellant is innocent of the offense. See Ex parte Franklin, 72 S.W.3d 671 (Tex.Cr.App.2002); see also Ex parte Elizondo, 947 S.W.2d 202 (Tex.Cr.App.1996). Appellant=s third issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
September 30, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The record shows that appellant was more than three years older than the victim.