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
2

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 
4

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.
5

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.