State v. Marcelino Guerrero

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
3
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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