COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ No. 08-10-00152-CR § Appeal from EX PARTE: DAVID VASQUEZ § 65th District Court § of El Paso County, Texas § (TC# 980D09457-65-1) §
OPINION
David Vasquez appeals the trial court=s denial of his application for writ of habeas corpus.
Finding no error, we affirm.
FACTUAL SUMMARY
Appellant was indicted by a grand jury on October 3, 1998 for cocaine possession, less
than one gram. On March 8, 1999, he pled no contest to the charged offense as part of a plea
agreement whereby the State sought deferred adjudication for a period not to exceed ten years.
As part of the same negotiated agreement, the State agreed to prosecute the offense, which is
generally a state jail felony, as a Class A misdemeanor under Texas Penal Code Section 12.44(b).
After executing the requisite admonishments and waivers, the court accepted Appellant=s plea,
and entered an order deferring adjudication of guilt and placing Appellant on community
supervision for a period of two years. As part of his community supervision, Appellant was
required to avoid drug use and intoxication, report monthly to a community supervision officer,
complete two hundred hours of community service, pay several enumerated fines, and attend specified drug treatment programs. There was no appeal from the deferred adjudication order.
On February 28, 2001, less than a month before the termination of community
supervision, the State filed a motion to adjudicate guilt, alleging that Appellant had violated his
community supervision agreement by: (1) introducing cocaine into his body; (2) failing to
report on fifteen separate occasions; (3) failing to pay numerous fines; (4) failing to participate in
the required community service; (5) failing to report to a program licensed by the Texas
Commission of Alcohol and Drug Abuse; (6) failing to report to the Treatment Alternatives to
Incarceration Program; and (7) failing to report to Alcoholics Anonymous/Narcotics Anonymous.
On June 25, 2001, the court entered judgment revoking community supervision and adjudicating
Appellant guilty of the offense of possession of a controlled substance - less than one gram of
cocaine, a Class A misdemeanor. The court then sentenced him to 180 days in the El Paso
County Detention Facility. Appellant did not appeal.
Nine years later, Appellant filed an application for writ of habeas corpus pursuant to
Texas Code of Criminal Procedure Article 11.072 and Article 8, Section 5 of the Texas
Constitution, alleging:
Applicant, David Vasquez, faces removal from the United States by virtue of a nolo contendere plea he entered in cause number 980D09457 to the offense of possession of less than 1 gram of cocaine. This Order was rendered March 8, 1999, at which time the 65th Judicial District Court deferred the adjudication of Vasquez= guilt and placed him on community supervision for a period of 2 years pursuant to Texas Penal Code Section 12.44(b)
Essentially, Appellant complained that he faced removal proceedings due to his 1999 no contest
plea. He argued that he received ineffective assistance from his trial counsel at the original
proceeding, rendering his plea involuntary. He also alleged that his original plea was
-2- involuntary because the trial court failed to admonish him regarding the adverse immigration
consequences associated with his plea. The State responded that the trial court lacked subject
matter to hear the application under Article 11.072 because Appellant=s probation had previously
been revoked and he was adjudicated guilty and sentenced to jail at that time.
The trial court denied Appellant=s application, finding that the order placing him on
community supervision was superceded by the final judgment revoking his community
supervision and adjudicating him guilty of the offense. This appeal follows.
AVAILABILITY OF RELIEF
Appellant states his sole issue on appeal as, Athe Trial Court erred in ruling that it did not
possess subject-matter jurisdiction to entertain Appellant Vasquez= article 11.072 writ
application.@ Initially, we note that the trial court did not dismiss Appellant=s application for
want of subject matter jurisdiction. In fact, the court=s order expressly recognized that it had
original jurisdiction to entertain writs of habeas corpus under the authority granted by Article V,
Section 8 of the Texas Constitution and under Article 11.05 of the Texas Code of Criminal
Procedure. See Ex parte Hargett, 819 S.W.2d 866, 867 (Tex.Crim.App. 1991). The trial court
determined that, AVasquez=s application, erroneously filed under article 11.072 of the Code of
Criminal Procedure, has invoked this Court=s original habeas jurisdiction.@ Rather than denying
relief for want of subject matter jurisdiction, the trial court denied Appellant=s application on the
merits because his original community supervision was revoked and he was sentenced to a period
of confinement in jail.
Article 11.072 of the Texas Code of Criminal Procedure establishes the procedures for an
application of writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks
-3- relief from a judgment of conviction ordering community supervision. See TEX.CODE
CRIM.PROC.ANN. art. 11.072 (West 2005). At the time the application is filed, the applicant
must be, or have been, on community supervision, and the application must challenge the legal
validity of: (1) the conviction for which or order in which community supervision was imposed;
or (2) the conditions of community supervision. Id. at ' 2(b). In any case in which the trial
court does not determine the application is frivolous, the court must enter findings of fact and
conclusions of law. See id. at ' 7. Additionally, Section 8 provides that if the trial court denies
the application Ain whole or in part, the applicant may appeal under Article 44.02 and Rule 31,
Texas Rules of Appellate Procedure.@ See id. at ' 8.
In his writ application, Appellant challenged the legality of his original 1999 guilty plea
to the Class A misdemeanor offense of cocaine possession which resulted in an order granting
deferred adjudication community supervision for a period of two years. Neither his writ
application nor his brief on appeal allege error with respect to the 2001 order which revoked his
community supervision and adjudicated him guilty of the charged offense. All of his arguments
focus on Article 11.072 and the original plea and ignore the fact that Appellant was subsequently
adjudicated guilty. According to Appellant, because the wording of Article 11.072 applies to an
applicant who is on, or Aha[s] been on,@ community supervision, the plain meaning encompasses
situations such as his because Appellant Aha[s] been on@ community supervision. Next, he relies
on the absence of any other post-conviction writ procedure under Texas law which operates to
deprive a convicting court of subject matter jurisdiction under Article 11.072 once jurisdiction
attaches under this statute.
Appellant relies heavily on the Court of Criminal Appeals decision in Villanueva v. State,
-4- 252 S.W.3d 391 (Tex.Crim.App. 2008):
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ No. 08-10-00152-CR § Appeal from EX PARTE: DAVID VASQUEZ § 65th District Court § of El Paso County, Texas § (TC# 980D09457-65-1) §
OPINION
David Vasquez appeals the trial court=s denial of his application for writ of habeas corpus.
Finding no error, we affirm.
FACTUAL SUMMARY
Appellant was indicted by a grand jury on October 3, 1998 for cocaine possession, less
than one gram. On March 8, 1999, he pled no contest to the charged offense as part of a plea
agreement whereby the State sought deferred adjudication for a period not to exceed ten years.
As part of the same negotiated agreement, the State agreed to prosecute the offense, which is
generally a state jail felony, as a Class A misdemeanor under Texas Penal Code Section 12.44(b).
After executing the requisite admonishments and waivers, the court accepted Appellant=s plea,
and entered an order deferring adjudication of guilt and placing Appellant on community
supervision for a period of two years. As part of his community supervision, Appellant was
required to avoid drug use and intoxication, report monthly to a community supervision officer,
complete two hundred hours of community service, pay several enumerated fines, and attend specified drug treatment programs. There was no appeal from the deferred adjudication order.
On February 28, 2001, less than a month before the termination of community
supervision, the State filed a motion to adjudicate guilt, alleging that Appellant had violated his
community supervision agreement by: (1) introducing cocaine into his body; (2) failing to
report on fifteen separate occasions; (3) failing to pay numerous fines; (4) failing to participate in
the required community service; (5) failing to report to a program licensed by the Texas
Commission of Alcohol and Drug Abuse; (6) failing to report to the Treatment Alternatives to
Incarceration Program; and (7) failing to report to Alcoholics Anonymous/Narcotics Anonymous.
On June 25, 2001, the court entered judgment revoking community supervision and adjudicating
Appellant guilty of the offense of possession of a controlled substance - less than one gram of
cocaine, a Class A misdemeanor. The court then sentenced him to 180 days in the El Paso
County Detention Facility. Appellant did not appeal.
Nine years later, Appellant filed an application for writ of habeas corpus pursuant to
Texas Code of Criminal Procedure Article 11.072 and Article 8, Section 5 of the Texas
Constitution, alleging:
Applicant, David Vasquez, faces removal from the United States by virtue of a nolo contendere plea he entered in cause number 980D09457 to the offense of possession of less than 1 gram of cocaine. This Order was rendered March 8, 1999, at which time the 65th Judicial District Court deferred the adjudication of Vasquez= guilt and placed him on community supervision for a period of 2 years pursuant to Texas Penal Code Section 12.44(b)
Essentially, Appellant complained that he faced removal proceedings due to his 1999 no contest
plea. He argued that he received ineffective assistance from his trial counsel at the original
proceeding, rendering his plea involuntary. He also alleged that his original plea was
-2- involuntary because the trial court failed to admonish him regarding the adverse immigration
consequences associated with his plea. The State responded that the trial court lacked subject
matter to hear the application under Article 11.072 because Appellant=s probation had previously
been revoked and he was adjudicated guilty and sentenced to jail at that time.
The trial court denied Appellant=s application, finding that the order placing him on
community supervision was superceded by the final judgment revoking his community
supervision and adjudicating him guilty of the offense. This appeal follows.
AVAILABILITY OF RELIEF
Appellant states his sole issue on appeal as, Athe Trial Court erred in ruling that it did not
possess subject-matter jurisdiction to entertain Appellant Vasquez= article 11.072 writ
application.@ Initially, we note that the trial court did not dismiss Appellant=s application for
want of subject matter jurisdiction. In fact, the court=s order expressly recognized that it had
original jurisdiction to entertain writs of habeas corpus under the authority granted by Article V,
Section 8 of the Texas Constitution and under Article 11.05 of the Texas Code of Criminal
Procedure. See Ex parte Hargett, 819 S.W.2d 866, 867 (Tex.Crim.App. 1991). The trial court
determined that, AVasquez=s application, erroneously filed under article 11.072 of the Code of
Criminal Procedure, has invoked this Court=s original habeas jurisdiction.@ Rather than denying
relief for want of subject matter jurisdiction, the trial court denied Appellant=s application on the
merits because his original community supervision was revoked and he was sentenced to a period
of confinement in jail.
Article 11.072 of the Texas Code of Criminal Procedure establishes the procedures for an
application of writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks
-3- relief from a judgment of conviction ordering community supervision. See TEX.CODE
CRIM.PROC.ANN. art. 11.072 (West 2005). At the time the application is filed, the applicant
must be, or have been, on community supervision, and the application must challenge the legal
validity of: (1) the conviction for which or order in which community supervision was imposed;
or (2) the conditions of community supervision. Id. at ' 2(b). In any case in which the trial
court does not determine the application is frivolous, the court must enter findings of fact and
conclusions of law. See id. at ' 7. Additionally, Section 8 provides that if the trial court denies
the application Ain whole or in part, the applicant may appeal under Article 44.02 and Rule 31,
Texas Rules of Appellate Procedure.@ See id. at ' 8.
In his writ application, Appellant challenged the legality of his original 1999 guilty plea
to the Class A misdemeanor offense of cocaine possession which resulted in an order granting
deferred adjudication community supervision for a period of two years. Neither his writ
application nor his brief on appeal allege error with respect to the 2001 order which revoked his
community supervision and adjudicated him guilty of the charged offense. All of his arguments
focus on Article 11.072 and the original plea and ignore the fact that Appellant was subsequently
adjudicated guilty. According to Appellant, because the wording of Article 11.072 applies to an
applicant who is on, or Aha[s] been on,@ community supervision, the plain meaning encompasses
situations such as his because Appellant Aha[s] been on@ community supervision. Next, he relies
on the absence of any other post-conviction writ procedure under Texas law which operates to
deprive a convicting court of subject matter jurisdiction under Article 11.072 once jurisdiction
attaches under this statute.
Appellant relies heavily on the Court of Criminal Appeals decision in Villanueva v. State,
-4- 252 S.W.3d 391 (Tex.Crim.App. 2008):
By enacting Article 11.072, it is clear that the Legislature intended Article 11.072 to provide the exclusive means by which the district courts may exercise their original habeas jurisdiction under Article V, Section 8 of the Texas Constitution in cases involving an individual who is either serving a term of community supervision or who has completed a term of community supervision.
But Villanueva does not establish that Article 11.072 is applicable because that case involved a
writ filed prior to the appellant=s adjudication of guilt. See Villanueva, 252 S.W.3d at 391; see
also Arreola v. State, 207 S.W.3d 387, 389 (Tex.App.--Houston [1st Dist.] 2006, no
pet.)(holding that court had jurisdiction over appellant=s Article 11.072 writ application where
appellant filed a writ of habeas corpus challenging the voluntariness of his guilty plea in response
to the state=s motion to adjudicate guilt, even though the writ was later denied and subsequently
appellant pled true to the allegations in the state=s motion to revoke and was adjudicated guilty),
citing to Kniatt v. State, 206 S.W.3d 657 (Tex.Crim.App. 2006)(holding that court had
jurisdiction to hear pre-conviction application for writ of habeas corpus that was filed by
applicant while applicant was on deferred adjudication community supervision even though trial
court did not rule on application until after applicant was adjudicated guilty). None of the cases
cited by Appellant permits a writ under Article 11.072 after revocation and adjudication of guilt.
If a district court denies habeas relief under Article 5, Section 8 of the Texas Constitution,
the applicant may appeal the ruling to this court. Hargett, 819 S.W.2d at 868. Vasquez has
indeed appealed, but he has not assigned error as to the denial of relief on the merits. In the
interest of justice, we have the authority to entertain the argument on rehearing. Rochelle v.
State, 791 S.W.2d 121, 124 (Tex.Crim.App. 1990).
The judgment of the trial court is affirmed.
-5- January 25, 2012 __________________________________________ ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior)
(Do Not Publish)
-6-