Ex Parte: Alexander Tarango

• Court: Court of Appeals of Texas
• Decided: May 27, 2004
• Docket: 08-03-00210-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE:  ALEXANDER TARANGO.

'

No. 08-03-00210-CR Appeal from the 205th District Court of Culberson County, Texas (TC#1320)

MEMORANDUM OPINION

Alexander Tarango appeals from an order denying habeas corpus relief.  We affirm.

Factual and Procedural Background

Tarango was charged by information with trespassing at a residence located at A604 Crockett Street, in Van Horn, Texas.@  The information was based on a complaint by the owner of the residence, which complaint stated that the address of the residence was A604 Crockett Street, Van Horn, Texas.@

On September 18, 2002, Tarango and the trial judge signed three documents:  (1) a Waiver of Right to Counsel; (2) a Stipulation; and (3) a Waiver and Admission of Guilt.   The Waiver of Right to Counsel states that Tarango, Ahaving been informed of and understanding his right to counsel and the possible consequences of waiving such rights, now waive(s) the right to counsel.@  The Stipulation states, in typewriting, that Tarango Adid then and there knowingly and intentionally, enter and remain on property, to-wit: a residence located at 604 Crockett Street, Van Horn, Texas . . . .@  The numeral A604@ is crossed out and the numeral A609@ appears in handwriting above it.  The Waiver and Admission of Guilt states:

I do now admit, in open court, all of the allegations in said complaint and information and I confess that I committed the offense(s) charged therein.  I waive any and all rights to which the Texas Code of Criminal Procedure entitles me, particularly to the right to require sufficient evidence to support the judgment of the Court, in view of my judicial confession herein made. . . . .

On the same day that these documents were signed, the trial court found Tarango guilty and sentenced him to 180 days= confinement, probated for one year.  The written judgment states that Tarango Aintelligently, knowing[ly] and voluntarily waived the right to an attorney.@

In December 2002, the State filed a motion to revoke Tarango=s probation.   Before the trial court heard the motion to revoke, Tarango filed a petition for writ of habeas corpus.^[1]  He asserted the following grounds for relief:  (1) the trial court failed to advise him of the dangers and disadvantages of self-representation; and (2) he was convicted of an offense that was not alleged in the information.

At a hearing on the petition, Tarango admitted that he read and signed the Waiver of Right to Counsel and the Waiver and Admission of Guilt.  He also admitted that he was not promised anything in exchange for his admission of guilt.  Finally, he testified that the trial judge did not discuss with him the dangers of self-representation.

Burden of Proof and Standard of Review

The petitioner bears the burden of proving an entitlement to habeas corpus relief by a preponderance of the evidence.  Barras v. State, 902 S.W.2d 178, 181 (Tex. App.--El Paso 1995, pet. ref=d).  In reviewing the denial of habeas relief, we view the evidence in the light most favorable to the trial court=s ruling.  Id.  Absent a clear abuse of discretion, we must affirm that court=s ruling.  Parrish v. State, 38 S.W.3d 831, 834 (Tex. App.--Houston [14th Dist.] 2001, pet. ref=d).

Conviction of Offense Not Alleged in the Information

Tarango=s brief states his first issue as follows:

Whether Appellant stands convicted of an offense not alleged in the criminal information. 

The brief states the second issue as:

Whether the State, with the consent of the Defendant, in attempting to correct an erroneous factual allegation in the information by stipulation, rather than by following the requirements of Article 28.10, TCCP, renders the judgment of conviction of Appellant in the County Court of Culberson County void or in the alternative voidable.^[2] 

Tarango addresses these issues together, and we will do the same.

Tarango asserts that the prosecutor discovered that the information did not contain the correct address.  Rather than complying with the statutory procedures for amending the information, the prosecutor attempted to cure the defect by crossing out the incorrect address in the Stipulation and inserting the correct address.  According to Tarango, the only evidence against him, per the Stipulation, was that he trespassed at 609 Crockett Street, which was not the address alleged in the information.  Tarango further asserts that it is Ahornbook law@ that a person cannot be convicted of an offense not contained in the charging instrument.

We first note that the factual premises of Tarango=s argument are unsupported by the record.  Although the numeral A604@ was crossed out and replaced with A609@ in the Stipulation, the record does not reveal who made this change or when it was made.  The record also does not reveal whether 604 Crockett Street or 609 Crockett Street was the correct address.  And the record does not reveal anything about the prosecutor=s motives.

The essence of Tarango=s complaints is that the State proved he committed trespass at 609 Crockett Street, rather than at 604 Crockett Street, and that he thus was convicted of an offense not stated in the information.  Although not denominated as such by Tarango, this is a Avariance@ complaint.  The Court of Criminal Appeals has explained:

A Avariance@ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.  In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument.     

Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).^[3]  In Texas, a variance presents an issue of the legal sufficiency of the evidence.  Id. at 246-48 & n.6, 257.

There is no federal constitutional requirement that evidence of guilt must be offered to support a guilty plea.  Ex parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988); Keller v. State, 125 S.W.3d 600, 605 (Tex. App.--Houston [1st Dist.] 2003, pet. filed).  Nor is there a statutory requirement that evidence of guilt must be offered to support a guilty plea in a misdemeanor case.  See Tex. Code Crim. Proc. Ann. art. 27.14(a) (Vernon Supp. 2004); Martin, 747 S.W.2d at 792; Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986); Avila v. State, 884 S.W.2d 896, 897 (Tex. App.--San Antonio 1994, no pet.); see also Tex. Pen. Code Ann. ' 30.05(d) (Vernon Supp. 2004) (defining trespass as a misdemeanor); cf. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004) (providing that in a felony case the State must introduce evidence showing the guilt of the defendant).  A plea of guilty in a misdemeanor case constitutes an admission of every element of the charged offense and is conclusive of the defendant=s guilt.  Williams, 703 S.W.2d at 678; Avila, 884 S.W.2d at 897.  It follows that the sufficiency of the evidence to support the guilty plea may not be collaterally attacked by way of a writ of habeas corpus.  Williams, 703 S.W.2d at 678.^[4]  Therefore, Tarango is not entitled to habeas relief based on his complaints regarding the variance between the information and the Stipulation.

Tarango suggests that the variance renders his conviction void.  For a judgment to be void, the record must show a complete lack of evidence to support the conviction, not merely insufficient evidence.  Nix v. State, 65 S.W.3d 664, 668 & n.14 (Tex. Crim. App. 2001); Williams, 703 S.W.2d at 679-81; Ex parte Cantrell, 112 S.W.3d 753, 754 (Tex. App.--Beaumont 2003, pet. ref=d).  A guilty plea constitutes some evidence for this purpose.  Nix, 65 S.W.3d at 668 n.14.  As noted above, Tarango signed a Waiver and Admission of Guilt, in which he admitted Aall of the allegations in [the] complaint and information and . . . confess[ed] that [he] committed the offense(s) charged therein.@   Accordingly, the conviction is not void for a complete lack of evidence.

Tarango=s first two issues are overruled.

Failure to Advise of the Dangers of Self-Representation

Tarango=s brief states his fourth issue as follows:

Whether, under the peculiar circumstances of this case, the Trial Judge failed to advise Appellant of the dangers of self-representation in violation of 1.051(g), TCCP.^[5] 

Tarango=s entire argument on this issue is as follows:

Finally, even though cases exist in Texas on both sides of the issue of whether a Trial Judge must advise Appellant pursuant to the provisions of 1.051(g), TCCP, of the dangers of self-representations in a guilty plea, it is urged that the Court look at this from a different approach.  Where, again, we have an uncounselled Defendant and an overreaching prosecutor, and the Judge sets on the Bench and watches it all happen, the Trial Judge is denying due process under both the Federal and State Constitutions to the accused citizen. 

While asserting that there are cases on both sides of the issue, Tarango does not cite a single case on either side of the issue.  Therefore, he has presented nothing for review.  See Tex. R. App. P. 38.1(h); Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001); Todd v. State, 911 S.W.2d 807, 819 (Tex. App.--El Paso 1995, no pet.). 

In any event, it is well settled that a trial judge is not required to admonish a misdemeanor defendant about the dangers of self-representation if the defendant does not contest his guilt.  See Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002); Barras, 902 S.W.2d at 180.  When a defendant does not contest his guilt, the issue is not whether he was admonished of the dangers of self-representation, but whether he made a knowing, voluntary, and intelligent waiver of the right to counsel.  Hatten, 71 S.W.3d at 334; Barras, 902 S.W.2d at 180.

Tarango did not contest his guilt; therefore, we must only examine the record to see if his waiver of counsel was valid.  See Barras, 902 S.W.2d at 180-81.  Tarango signed a Waiver of Right to Counsel, which states that Ahaving been informed of and understanding his right to counsel and the possible consequences of waiving such rights, [Tarango] now waive(s) the right to counsel.@  The written judgment states that Tarango Aintelligently, knowing[ly] and voluntarily waived the right to an attorney.@  At the habeas hearing, Tarango testified that he read and signed the Waiver of Right to Counsel.   Although he also testified that the trial judge did not discuss with him the dangers of self-representation, he did not testify that he did not understand the dangers of self-representation.  In short, the record does not show that Tarango=s waiver of counsel was involuntary.

Tarango=s fourth issue is overruled.

Due Process

Tarango=s brief states the third issue as:

Whether Appellant was deprived of liberty without the due course of the law of the land. 

Tarango argues that he was denied due process by the combination of all of the purported errors and improprieties that occurred in this case, including the alteration of the Stipulation, the violation of the statutory requirements for amending the information, and the failure to admonish him of the dangers of self-representation.  For the reasons explained above, this argument relies on assertions that are not supported by the facts or the law.  There is nothing in the record to establish that the proceedings leading to Tarango=s conviction were unfair or that his plea was involuntary.

Tarango=s third issue is overruled.

Conclusion

For the reasons stated herein, the order of the trial court is affirmed.

SUSAN LARSEN, Justice

May 27, 2004

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

---

^[1]It appears from the record that Tarango is not currently incarcerated and that the trial court is holding the motion to revoke in abeyance pending the outcome of the habeas proceeding. 

^[2]The referenced statute sets out the requirements for amending an information.  See Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 1989).

^[3]In Gollihar, the indictment charged the defendant with stealing a go-cart with the model number 136202, but the proof at trial was that the stolen go-cart=s model number was 136203.  46 S.W.3d at 244.  The Court of Criminal Appeals treated this as a variance problem.  Id. at 257-58.

^[4]This rule applies to both felony and misdemeanor cases.  See Williams, 703 S.W.2d at 683.

^[5]The referenced statute sets out the procedures a trial judge must follow when a defendant wishes to waive the right to counsel.  See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2004).