Ex Parte Cervantes

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

Cases citing this case

How cited

  • Morales v. State

    …Rather it requires that all persons who plead guilty be told that noncitizens are subject to deportation. Ex…

  • Morales v. State

    …By using the word "shall" the Texas legislature has made compliance with this statute mandatory. See Hughes…

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Summaries written by judges

Summaries

  • 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

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


PER CURIAM.

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.