NUMBER 13-15-00157-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

EX PARTE SERGIO RODRIGUEZ CUELLAR

On appeal from the 92nd District Court of 

Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Longoria 

Memorandum Opinion by Justice Garza

The State of Texas appeals from the trial court’s order granting appellee Sergio 

Rodriguez Cuellar’s application for writ of habeas corpus.1 See TEX. CODE CRIM. PROC.

ANN. art. 11.072 (West, Westlaw through 2015 R.S.). By a single issue, the State argues 

that the trial court abused its discretion in granting habeas relief because: (1) the record 

 

1 Appellee did not file a response brief to aid us in the disposition of this case. 
2

does not support the trial court’s findings of fact and conclusions of law; and (2) the stated 

grounds for relief allege only violations of state statutes, and such claims are not 

cognizable on habeas corpus. We reverse and render.

I. BACKGROUND

On March 4, 2003, pursuant to a plea bargain, appellee pleaded guilty to evading 

arrest with a vehicle, a state-jail felony offense. See TEX. PENAL CODE ANN. 38.04 (West, 

Westlaw through 2015 R.S.). Pursuant to the plea bargain, the trial court imposed 

punishment at two years’ confinement and a $750.00 fine, suspended the sentence, and 

placed appellee on community supervision for five years. At the plea hearing, appellee’s 

appointed counsel waived service of the indictment two days prior to arraignment, see 

TEX. CODE CRIM. PROC. ANN. art. 26.03 (West, Westlaw through 2015 R.S.), and a tenday period of preparation before a plea or trial, see id. art. 1.051(e) (West, Westlaw 

through 2015 R.S.).

On January 7, 2015, appellee filed an amended application for writ of habeas 

corpus. In his application, appellee argued that he was “illegally restrained by the 

collateral consequences” of his prior conviction because of his inability “to continue his 

status as a legal resident of the United States.” Appellee argued that he was “denied due 

process of law and right to counsel as he was induced into pleading guilty without any 

notice of his arraignment, service of the indictment, a reading of the indictment, and 

adequate time to prepare with court-appointed counsel.” Specifically, appellee argued 

that he was denied the two-day period between receipt of the indictment and arraignment 

required by article 26.03 and the ten-day preparation for trial required by article 1.051(e). 

See id. arts. 1.051(e), 26.03.
3

On February 19, 2015, the trial court held a hearing on appellee’s application.2 

Based on findings later issued by the trial court, the State argued at the hearing that: (1) 

the reading of the indictment was waived; (2) even if the reading of the indictment was 

not waived, such an error is a violation of a statute, not a violation of a constitutional 

provision, and is thus not a cognizable issue on habeas corpus review; (3) the statutory 

requirement of ten days to prepare with court-appointed counsel was waived; and (4) 

even if the statutory requirement for a ten-day preparation period was not waived, such 

an error is not a violation of a constitutional provision and is therefore not a cognizable 

issue on habeas corpus review. 

On March 10, 2015, the trial court granted appellee the requested relief and set 

aside his conviction. The trial court issued the following findings of fact and conclusions 

of law:

Based on the Applicant’s pleadings, evidence, and the record as a whole, 

THE COURT FINDS THAT:

A. Applicant was not served with a copy of his indictment, was not read 

the indictment, and did not waive the reading of the indictment.

B. Applicant did not have enough time with counsel to adequately 

prepare for his trial.

THE COURT CONCLUDES THAT:

C. Applicant’s plea and conviction complained of were obtained in 

violation of the Applicant’s right to due process, in violation of the 5th 

and 14th Amendments of the Constitution of the United States, Art. 

1, sec. 13 and 19 [of] the Texas Constitution, and Texas Code of 

Criminal Procedure Art. 1.04, and the Court so concludes.

The State appealed. However, the reporter’s record did not include a transcript of 

 

2 For reasons explained more fully below, there is no reporter’s record of the February 19, 2015 

hearing. 
4

the February 19 hearing. On June 30, 2015, this Court abated the appeal and remanded 

to the trial court to determine whether a reporter’s record of the February 19, 2015 hearing 

could be recreated. The trial court held a hearing on July 23, 2015. At the hearing, 

counsel for appellee and counsel for the State addressed the trial court. No witnesses 

were presented. Appellee’s counsel and the State’s counsel discussed and agreed 

generally regarding what occurred at the February 19, 2015 hearing. Appellee’s counsel 

stated, “Mr. Cuellar did not testify, but without objection from counsel for the State, we 

proffered his testimony in alignment with the pleadings.”

On August 4, 2015, a supplemental clerk’s record was filed with this Court, which 

contained the following findings of fact:

1. On February 19, 2015, this Court called for an evidentiary hearing on 

a writ application.

2. On February 19, 2015, Applicant Sergio Rodriguez Cuellar argued 

his pleadings, proffered the Applicant’s testimony without objection, 

and obtained the Court’s judicial notice of all documents in the 

Court’s file.

3. On February 19, 2015, the State argued that this Court deny relief 

based on the following arguments:

a. The reading of the indictment was waived, and the statutory 

requirement of 10 days to prepare with court-appointed 

counsel was waived. 

b. Even if the reading of the indictment was not waived, such an 

error is not of constitutional dimension.

c. Even if the statutory requirement of 10 days to prepare with 

court-appointed counsel was not waived, such error is not of 

constitutional dimension. 

4. Due to a technical error, the electronic stenograph machine used by 

this Court’s official court reporter failed to record the hearing and is 

unrecoverable.

5. On March 10, 2015, this Court granted the writ application in its 
5

order, and set aside Applicant Sergio Rodriguez Cuellar’s conviction.

6. On March 30, 2015, the State filed its notice of appeal of this Court’s 

order granting Applicant Sergio Rodriguez Cuellar relief.

7. On April 10, 2015, the State filed its request for the reporter’s record.

8. On June 30, 2015, the Thirteenth Court of Appeals entered an Order 

of Abatement, ordering this Court to conduct a hearing to determine:

(1) If the appellant has timely requested a reporter’s record; 

(2) If, without the appellant’s fault, a significant exhibit or a 

significant portion of the court reporter’s notes and records 

has been lost or destroyed or—if the proceedings were 

electronically recorded—a significant portion of the recording 

has been lost or destroyed or is inaudible;

(3) If the lost, destroyed, or inaudible portion o[f] the reporter’s 

record, or the lost or destroyed exhibit, is necessary to the 

appeal’s resolution; and

(4) If the lost, destroyed, or inaudible portion of the reporter’s 

record cannot be replaced by agreement of the parties, or the 

lost or destroyed exhibit cannot be replaced either by 

agreement of the parties or with a copy determined by the trial 

court to accurately duplicate with reasonable certainty the 

original exhibit.

9. On July 23, 2015, this Court conducted a hearing pursuant to the 

Thirteenth Court of Appeals’ Order of Abatement.

10. This Court FINDS that as to (1), the State (Appellant) did not timely 

request the reporter’s record pursuant to Tex. R. App. P. 34.6(f) as 

the record shows that the State made said request 11 days after the 

time given the State to perfect appeal.

11. This Court FINDS as to (2), without the State’s (Appellant’s) fault, a 

significant portion of the court reporter’s record is lost and/or 

destroyed. This significant portion referred to consists of the entirely 

[sic] of the evidentiary hearing conducted on February 19, 2015. Due 

to a technical error, the electronic stenography machine used the this 

[sic] Court’s official court reporter failed to record the entirety of said 

hearing and is unrecoverable.

12. This Court FINDS as to (3), the lost and/or destroyed portion of the 

reporter’s record is necessary to the appeal’s resolution because the 

State had not filed a written response to Applicant Sergio Rodriguez 
6

Cuellar’s writ application, and thus, the State’s arguments were 

solely given and preserved orally at said hearing.

13. This Court FINDS as to (4), the lost and/or destroyed portion of the 

reporter’s record can be replaced by agreement of the parties. The 

parties are in agreement as to the most important aspects of the 

hearing.

The parties have agreed that on February 19, 2015, the Court took 

judicial notice of all documents in the Court’s file.

The parties have agreed that on February 19, 2015, Applicant Sergio 

Rodriguez Cuellar argued his writ application and proffered the 

Applicant’s testimony without objection, in accord with his written 

Application for relief.

The parties have also agreed that the State argued at the February 

19, 2015 hearing the following:

a. The reading of the indictment was waived.

b. Even if the reading of the indictment was not waived, such an 

error is not of constitutional dimension.

c. The statutory requirement of 10 days to prepare with courtappointed counsel was waived.

d. Even if the statutory requirement of 10 days to prepare with 

court-appointed counsel was not waived, such an error is not 

of constitutional dimension.

We reinstated the appeal on August 4, 2015.

II. STANDARD OF REVIEW AND APPLICABLE LAW

For a court to reach the merits of an applicant’s claim on habeas corpus, the 

applicant’s claim must be cognizable in habeas corpus. See Ex parte Perales, 215 

S.W.3d 418, 419–20 (Tex. Crim. App. 2007). “[B]oth federal and Texas courts have 

confined the scope of post-conviction writs of habeas corpus to jurisdictional or 

fundamental defects and constitutional claims.” Ex parte Graves, 70 S.W.3d 103, 109 

(Tex. Crim. App. 2002); see Ex parte Douthit, 232 S.W.3d 69, 71 (Tex. Crim. App. 2007) 
7

(“A writ of habeas corpus is available only for relief from jurisdictional defects and 

violations of constitutional or fundamental rights.”). “Violations of statutes, rules, or other 

non-constitutional doctrines are not recognized.” Ex parte Graves, 70 S.W.3d at 109; Ex 

parte Sanchez, 918 S.W.2d 526, 527 (Tex. Crim. App. 1996) (“We have recognized that 

a violation of a state statute in general is not a cognizable claim on habeas.”). 

III. DISCUSSION 

The State argues that: (1) the trial court’s findings of fact are not supported by the 

record because appellee waived his rights to the reading of the indictment, the two-day 

period before arraignment, and the ten-day preparation period before trial; and (2) the 

rights at issue—the reading of the indictment, two-day notice requirement, and ten-day 

preparation period—are granted by statute, and do not implicate constitutional violations. 

Thus, according to the State, because appellee’s grounds for relief raise only alleged 

violations of state statutes, his claims are not cognizable on habeas corpus.3 See Ex 

parte Graves, 70 S.W.3d at 109; Ex parte Sanchez, 918 S.W.2d at 527. We agree with 

the State. 

The right to a reading of the indictment is established by article 26.11 of the code 

of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.11.4 The two-day notice 

 

3 The Supreme Court of the United States has held that “when the deportation consequence is truly 

clear, . . . the duty to give correct advice is equally clear.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). 

“To satisfy this responsibility, we . . . hold that counsel must inform her client whether his plea carries a risk 

of deportation.” Id. at 374. Padilla does not apply retroactively to cases on collateral review. See Chaidez 

v. United States, 133 S.Ct. 1103, 1113 (2013); Ex parte De Los Reyes, 392 S.W.3d 675, 678–79 (Tex. 

Crim. App. 2013). Thus, “defendants whose conviction became final prior to [March 31, 2010] . . . cannot 

benefit from [Padilla's ] holding.” Chaidez, 133 S.Ct. at 1113. Therefore, appellant cannot rely upon Padilla

in attempting to establish ineffective assistance of counsel in connection with a 2003 plea bargain.

4 Article 26.11 provides: 

The name of the accused having been called, if no suggestion, such as is spoken of in the 

four preceding Articles, be made, or being made is disposed of as before directed, the 
8

requirement is established by article 26.03. See id. art. 26.03.5 A court-appointed 

counsel’s right to ten-days’ preparation is established by article 1.051(e) of the code of 

criminal procedure. See id. art. 1.051(e).6 Thus, each of the rights asserted as grounds 

for habeas relief are granted by state statutes, and violations thereof are therefore not 

cognizable claims on habeas corpus. See Ex parte Graves, 70 S.W.3d at 109; Ex parte 

Sanchez, 918 S.W.2d at 527. We sustain the State’s issue. 

IV. CONCLUSION

We reverse the trial court’s order granting appellee’s application for a writ of 

habeas corpus and render judgment denying the application and reinstating appellee’s 

conviction. 

DORI CONTRERAS GARZA,

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

14th day of July, 2016.

 

indictment shall be read, and the defendant asked whether he is guilty or not, as therein 

charged. 

TEX. CODE CRIM. PROC. ANN. art. 26.11 (West, Westlaw through 2015 R.S.). 

5 Article 26.03 provides: 

No arraignment shall take place until the expiration of at least two entire days after the day 

on which a copy of the indictment was served on the defendant, unless the right to such 

copy or to such delay be waived, or unless the defendant is on bail. 

Id. art. 26.03 (West, Westlaw through 2015 R.S).

 

6 Article 1.051(e) provides, in pertinent part:

An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the 

preparation time with the consent of the defendant in writing or on the record in open court. 

Id. art. 1.051(e) (West, Westlaw through 2015 R.S.).