Ex Parte Tovar

901 S.W.2d 484, 1995 Tex. Crim. App. LEXIS 71, 1995 WL 366673

• Court: Court of Criminal Appeals of Texas
• Decided: June 21, 1995
• Docket: 72,117
• Status: Published

Opinions

OPINION

MEYERS, Judge.

This is a post-eonviction application for writ of habeas corpus filed pursuant to Tex. Code Crim.Pro. Article 11.07. Applicant plead guilty to the offense of aggravated sexual assault. Punishment was assessed at forty five years imprisonment. No appeal was taken from this conviction.

Applicant now contends for the first time that his conviction is invalid because of a due process violation, specifically, that the trial court failed to admonish him pursuant to Tex.Code Crim.Pro. Article 26.13(a)(4).¹ This application accordingly presents the issue of whether we will grant post-eonviction habeas corpus relief for noncompliance with Art. 26.13(a)(4).

The purpose to be served by a post conviction writ of habeas corpus is limited, and “lies only to review jurisdictional defects or denials of fundamental or constitutional rights.” Ex parte Watson, 601 S.W.2d 350 (Tex.Crim.App.1980). Failure to adhere to a legislative directive or mode of proceeding designed to safeguard a constitutional right will likewise be cognizable only when the omission results in the denial of a constitutional protection. Ex parte Sadberry, 864 S.W.2d 541 (Tex.Crim.App.1993).

On direct appeal, we have stated that where a trial court wholly fails to comply with the admonishments requirements of Art. 26.13(a)(4), a reversal of the defendant’s conviction will follow, and that no harm must be shown as a predicate to reversal. Morales v. State, 872 S.W.2d 753, 754 (Tex.Crim.App.1994).

Similarly, in Meek v. State, 851 S.W.2d 868 (Tex.Crim.App.1993) this Court analyzed the effect of a defendant’s failure to execute a written jury waiver before a bench trial was conducted. On direct appeal, we held that a conviction secured without a jury and without a written jury waiver under Tex.Code Crim. Pro. Article 1.13 was invalid, and no showing of harm was required. Id However, the same cannot be said for cases raising the issue on post-conviction collateral attack. In Ex parte Sadberry, 864 S.W.2d 541 (Tex.Crim.App.1993), we considered the holding in Meek and its implication in a post-eonviction habeas corpus application. Distinguishing Meek, we observed the requirement of written jury waivers was statutory by design and was enacted to regulate how the constitutional right to a jury trial is waived. Article 1.13 itself, and failure to comply thereto, did not involve “a question of constitutional dimension.” In order to be entitled to post conviction collateral relief the applicant must raise a question of constitutional magnitude, allege facts establishing the constitutional violation and, if appropriate, prove that he was harmed. We therefore held that no relief would be granted when defendant establishes that he did not sign the jury waiver but does not allege facts establishing that he was harmed, i.e., that the defendant did not intend to waive a jury trial, that the defendant was deprived of his constitutional right to trial by jury, or that the defendant otherwise suffered harm. Accord, Ex parte Lyles, 891 S.W.2d 960, 961-962 (Tex.Crim.App.1995) (granting relief in post-conviction habeas corpus application where no written jury waiver was filed and harm was established).

The same principles apply in this situation, in that a post-conviction habeas corpus application must allege facts which show both a cognizable irregularity and harm, and the applicant must prove the same if given an evidentiary hearing. This writ application does not present such a question of constitutional dimension; it involves an irregularity in the proceedings in the trial court. Neither the federal nor state constitution require that a defendant be informed of possible deportation. This requirement of Tex. Code Crim.Proc. Art. 26.13(a)(4) was a product of the Legislature to ensure that pleas of guilty or nolo contendere are knowingly and voluntarily entered. Applicant has not alleged that the lack of the admonishment of Art. 26.13(a)(4) affected his guilty plea to the extent that it was not knowingly and/or voluntarily made.

An applicant seeking relief from the failure to receive the admonishment required by Art. 26.13(a)(4) must establish that there was no admonishment given consistent with Art. 26.13(a)(4) or otherwise suggesting the possibility of deportation, and that the lack of admonishment affected his decision to enter a plea of guilty.² See Holland v. State, 761 S.W.2d 307, 319 (Tex.Crim.App.1988) (waiver of constitutional right to jury trial must be voluntary, and must be made knowingly with sufficient awareness of the relevant circumstances and likely consequences); and Shannon v. State, 708 S.W.2d 850, 851 (Tex.Crim.App.1986); citing, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Applicant has not carried his burden in this regard. Indeed, the habeas judge entered findings of fact and conclusions of law that applicant’s plea was voluntary.

Accordingly, all requested relief is denied.

OVERSTREET, J., concurs in the result.

1 . Article 26.13 governs the admonishments given a defendant before entering a plea of guilty and provides in pertinent part:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

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(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

2 . This holding is consistent with this Court’s decision, Ex parte Cervantes, 762 S.W.2d 577 (Tex.Crim.App.1988), in which we considered a trial court's failure to admonish pursuant to Art. 26.13(a)(4) via post-conviction writ of habeas corpus and granted relief. A hearing was conducted, at which time applicant Cervantes established that he was not a United States citizen and that deportation proceedings were pending as a result of his conviction. The habeas court also found that no reference to possible deportation was made, either in the written admonishments or in open court, at the time Cervantes entered his plea.

However, to the extent that Cervantes, and Ex parte McAtee, 599 S.W.2d 335 (Tex.Crim.App.1980), indicate that a failure to admonish pursuant to Art. 26.13(a)(4) automatically entitles one to post-conviction collateral relief without a showing of harm, they are overruled.