COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-103-CR
EX PARTE IVAN DARIO RESTREPO
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FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In March 1993, the State charged Appellant Ivan Dario Restrepo with the
misdemeanor offense of indecent exposure. Subsequently, Restrepo pleaded
guilty and, in accordance with a plea bargain agreement, the trial court granted
Restrepo deferred adjudication, sentencing him to eighteen months’ community
supervision. After Restrepo successfully completed deferred adjudication, the
trial court discharged his community supervision and dismissed his case.
1
… See Tex. R. App. P. 47.4.
On September 2, 2008, Restrepo filed an application for a writ of habeas
corpus, seeking to have his 1993 guilty plea set aside and a new trial granted
on the ground that his guilty plea was involuntary because the trial court failed
to admonish him pursuant to article 26.13(a)(4) of the Texas Code of Criminal
Procedure. After a hearing on the matter, the trial court denied Restrepo’s writ
application. Restrepo then filed a motion for rehearing, which the trial court
later denied.
In his sole issue on appeal, Restrepo asserts that the trial court’s failure
to admonish him, in accordance with article 26.13(a)(4) of the code of criminal
procedure, about the immigration consequences of his guilty plea constituted
harmful error because the record failed to demonstrate that he was a United
States citizen at the time of his plea. We disagree.
It is true that the legislature has chosen to require by statute that trial
courts admonish persons pleading guilty to a felony that their pleas might result
in deportation, the exclusion from admission to the United States, or the denial
of naturalization under federal law. See Tex. Code Crim. Proc. Ann. art.
26.13(a)(4) (Vernon Supp. 2009); State v. Jimenez, 987 S.W.2d 886, 889
(Tex. Crim. App. 1999). The legislature, however, has not chosen to require
these same admonishments for persons charged with misdemeanors, and the
court of criminal appeals has consistently held that article 26.13 does not apply
to misdemeanor cases. See Gutierrez v. State, 108 S.W.3d 304, 309 (Tex.
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Crim. App. 2003); McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App.
1981); Johnson v. State, 614 S.W.2d 116, 120 n.1 (Tex. Crim. App. 1981);
Nash v. State, 591 S.W.2d 460, 463 (Tex. Crim. App. 1980); Empy v. State,
571 S.W.2d 526, 529–30 (Tex. Crim. App. 1978) (citing cases back to
1879).2 Thus, because Restrepo was convicted of a misdemeanor, we cannot
conclude that the trial court erred by failing to meet the requirements of article
26.13. See Rosa v. State, Nos. 05-04-00558-CR, 05-04-00571-CR, 2005 WL
2038175, at *1 (Tex. App.—Dallas Aug. 25, 2005, pet. ref’d) (holding that
trial court did not err in failing to meet the requirements of article 26.13 where
defendant was convicted of a misdemeanor). Accordingly, we overrule
Restrepo’s sole issue and affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 31, 2009
2
… In support of his argument, Restrepo directs our attention to
Vannortrick v. State, in which the court of criminal appeals held that the trial
court was required to admonish the defendant of the deportation consequences
of his guilty pleas and that error in failing to admonish the defendant about
deportation consequences of guilty pleas was not harmless. 227 S.W.3d 706,
712–14 (Tex. Crim. App. 2007). Vannortrick, however, is distinguishable
from this case because the defendant in Vannortrick was convicted of a felony.
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Ex Parte Ivan Dario Restrepo
Combined Opinion