From Casetext: Smarter Legal Research

Ex Parte Cervantes

Court of Criminal Appeals of Texas, En Banc
Oct 4, 1988
762 S.W.2d 577 (Tex. Crim. App. 1988)

Summary

granting the relief requested in Cervantes's application for writ of habeas corpus, where Cervantes had imminent deportation proceedings pending as a result of his final felony conviction

Summary of this case from Ex Parte Nguyen

Opinion

No. 70607.

October 4, 1988.

Appeal from the 195th Judicial District Court, Cameron County, Darrell Hester, J.

Robert E. Kahn, Houston, for appellant.

Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION


This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

The trial court convicted applicant of the offense of felony driving while intoxicated and assessed his punishment at 5 years in the Texas Department of Corrections. No appeal was taken from this conviction.

In the instant case the applicant contends that the trial Court failed to admonish him pursuant to Article 26.13(a)(4), V.A.C.C.P. (1987), that his plea of guilty could result in his deportation.

A hearing was conducted on these allegations, at which copies of the papers in the court's file for this case and a transcription of his plea proceedings were admitted, and it was noted that applicant has imminent deportation proceedings pending as a result of this conviction. This record reflects applicant was admonished in writing, pursuant to Article 26.13(d), V.A.C.C.P., and that no reference to possible deportation was made either in the written admonishments, or in open court.

While admonishments which substantially comply with Article 26.13 are sufficient, the complete failure to comply with an admonishment required by the statute requires reversal. Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App. 1980). Such a complete failure is reflected in this record.

The relief sought is granted. The judgment against applicant in Cameron County cause number 87-CR-858-B is hereby set aside, and applicant remanded to answer the indictment against him.

No motion for rehearing will be allowed.


Summaries of

Ex Parte Cervantes

Court of Criminal Appeals of Texas, En Banc
Oct 4, 1988
762 S.W.2d 577 (Tex. Crim. App. 1988)

granting the relief requested in Cervantes's application for writ of habeas corpus, where Cervantes had imminent deportation proceedings pending as a result of his final felony conviction

Summary of this case from Ex Parte Nguyen

In Ex parte Cervantes, 762 S.W.2d 577 (Tex.Cr.App. 1988), this Court overturned a conviction in a unanimous per curiam opinion because the trial court had failed to admonish Cervantes, who pled guilty, that his plea could result in his deportation, as mandated by Article 26.13(a)(4), V.A.C.C.P. It is true that Cervantes faced imminent deportation.

Summary of this case from Ex Parte Tovar

In Cervantes the record from the habeas proceeding was clear in its showing that applicant was not a citizen of the United States.

Summary of this case from Morales v. State

In Ex parte Cervantes, 762 S.W.2d 577 (Tex.Cr.App. 1988), the trial judge wholly failed to admonish the defendant, pursuant to art. 26.13(a)(4).

Summary of this case from Morales v. State

In Cervantes, the record before the court showed that the applicant had not received any admonishment at all concerning the deportation consequences of a guilty plea. Cervantes, 762 S.W.2d at 578.

Summary of this case from Archie v. State

In Cervantes, the court also set aside a conviction following a guilty plea because the trial court failed to give an immigration admonishment.

Summary of this case from Dixon v. State
Case details for

Ex Parte Cervantes

Case Details

Full title:Ex parte Mario Tovar CERVANTES

Court:Court of Criminal Appeals of Texas, En Banc

Date published: Oct 4, 1988

Citations

762 S.W.2d 577 (Tex. Crim. App. 1988)

Citing Cases

Morales v. State

See also, Weekley v. State, 594 S.W.2d 96 (Tex.Cr.App. 1980). In Ex parte Cervantes, 762 S.W.2d 577…

Matchett v. State

We hasten to add that if as in Morales, the appellant's status were unknown, or if he were in fact…