Ex Parte Cherry

259 S.W.3d 295, 2008 Tex. App. LEXIS 4734, 2008 WL 2522231

• Court: Court of Appeals of Texas
• Decided: June 25, 2008
• Docket: 09-08-111 CR, 09-08-112 CR
• Status: Published

Opinions

OPINION

STEVE McKEITHEN, Chief Justice.

These are appeals by the State from the trial court’s order granting relief on Matthew Cherry’s application for writ of habeas corpus. We reverse and render judgment denying Cherry’s application and reinstate the deferred adjudication orders.

BACKGROUND

On August 1, 2005, Cherry pled guilty without a plea bargain agreement to two charges of indecency with a child. At the plea hearing, Carl Parker served as counsel for appellant. On August 18, 2005, Parker filed a motion to withdraw as Cherry’s counsel, and Parker stated in the motion that “Defendant has requested we withdraw our representation....” On September 7, 2005, another attorney, Patrick O’Fiel, filed a motion to withdraw Cherry’s guilty plea. The next day, another attorney, Joseph C. “Lum” Hawthorn, filed a motion to substitute as Cherry’s counsel. On September 9, 2005, Hawthorn filed a “Supplemental Motion to Withdraw Plea of Guilty.” On the same date, Hawthorn filed a motion for continuance, in which he stated he could not appear at the sentencing hearing, which was scheduled for September 12, 2005.

The trial court conducted Cherry’s sentencing hearing on September 16, 2005. At the beginning of that proceeding, the trial court stated that Cherry was present with his counsel, Carl Parker, and Cherry stated, “I’d like to have Lum Hawthorn as my attorney, and I would like to make a motion for withdrawing of my plea.” The trial court responded as follows:

The request to have Mr. Lum Hawthorn to substitute in as your attorney is going to be denied since Mr. Carl Parker was your attorney at the time the Court accepted your guilty pleas and this case set for sentencing. Because of the lateness of the request, that is denied.

Your request to withdraw your plea also is denied. The Court had inquired of you at the time you entered your plea if you had done so of your own free will, you assured the Court that you had and; therefore, that request is also denied.

After hearing statements from Cherry, counsel, Cherry’s parents, and the victims’ families, the trial court deferred further proceedings in both cases, placed Cherry on community supervision for ten years, and assessed a fíne of $2,500. On January 17, 2007, Cherry filed an application for writ of habeas corpus, in which he argued the trial court violated his right to counsel by denying him his counsel of choice at the sentencing hearing despite the fact that Hawthorn was present on the date of the hearing and was ready to proceed. See Tex.Code Grim. PROc. Ann. art. 11.072 (Vernon 2005). The court denied Cherry’s application for a writ of habeas corpus and issued findings of fact and conclusions of law, in which it concluded as follows:

The trial court’s rulings during the court proceedings in this cause were based upon “important considerations relating to the integrity of the judicial process and the fair and orderly administration of justice.” Gonzalez v. State, 117 S.W.3d 831, 837 (Tex.Crim.App. 2003). The trial court’s actions did not arbitrarily or unreasonably interfere with Petitioner’s choice of counsel.

It is the decision of the Court that relief sought by Petitioner be denied without a hearing.

Cherry filed a notice of appeal.

After noting that the trial judge who presided at Cherry’s sentencing had retired and that another judge ruled on Cherry’s applications for writs of habeas corpus, this Court reversed and remanded the cause for a new habeas hearing because the basis of the habeas court’s decision to deny relief was not sufficiently clear from the record “to permit us to determine the merits of Cherry’s claims that his rights were violated by depriving him of his choice of paid counsel.” Ex parte Cherry, 232 S.W.3d 305, 307-08 (Tex. App.-Beaumont 2007, pet. refd). In our opinion, we noted that the new proceeding

may include, if deemed necessary by the trial court, a development of the factual record to determine whether Cherry’s chosen retained counsel appeared and was ready to proceed on the merits of the sentence to be imposed on September 16, 2005, to identify the facts relied upon to determine that the motions to substitute were filed too late, as well as to allow the habeas court to make factual findings that demonstrate how granting Cherry’s motions to substitute would have adversely affected the integrity of the judicial process or the fair and orderly administration of justice.

Id. at 308. After conducting a new hearing on Cherry’s applications for writs of habeas corpus, the trial court entered new findings of fact and conclusions of law, in which it concluded as follows, in pertinent part:

[Ujpon further reflection, including review of the additional evidence of the transcript of the September 12, 2005 hearing, that allowing Cherry to replace his legal counsel as initially requested eight (8) days prior to his sentencing hearing on September 16, 2005, would not have adversely affected the integrity of the judicial process or the fair and orderly administration of justice. Even though great deference is given to [the predecessor trial judgej’s respected abilities and fairness as a judge, there seems little harm to the integrity of the judicial process or to the fair and orderly administration of justice would have occurred by allowing Cherry to substitute attorneys for sentencing. This could have been accomplished without delaying the sentencing hearing.

The trial court entered an order that vacated the deferred adjudication orders previously entered and ordered Cherry’s cases “to be placed on an active court docket for sentencing.” The State then filed this appeal, in which it raises three issues for our consideration. See Tex. Code Crim. PROC. Ann. art. 44.01(k) (Vernon Supp.2007) (The State may appeal a decision that grants a writ of habeas corpus under Article 11.072.).

Issue Three

In its third issue, the State argues “[t]he habeas court erred in finding that the trial judge acted outside the bounds of wide latitude.” As part of its argument of this issue, the State asserts that the relief Cherry seeks is not cognizable as a writ of habeas corpus under article 11.072 because Cherry could have sought relief by filing an appeal, but failed to do so. See Tex. Code Crim. Proc. Ann. art. 11.072 § 3(a) (“An application may not be filed under this article if the applicant could obtain the requested relief by means of an appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure.”). Because this argument is dispositive, we address it first. See Tex.R.App. P. 47.1.

Although the trial court indicated upon remand that it had reviewed additional evidence in the form of the transcript of the September 12 hearing, that evidence would have been available to Cherry had he filed an ordinary appeal. See Tex. R.App. P. 34.6(b) (Appellant may request that the court reporter prepare a reporter’s record of proceedings.). With the exception of said transcript and a statement by Cherry’s desired counsel that he was present and ready to proceed, the record does not indicate that the trial court heard or reviewed any additional evidence. Therefore, the issues raised by Cherry in his applications for writs of habeas corpus are not cognizable because he could have obtained the requested relief by filing appeals. See Tex.Code Crim. Proo. Ann. art. 11.072 § 3(a); Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App.1994) (Courts of Appeals have jurisdiction over cases in which the appellant pled guilty without a plea bargain agreement.). We sustain issue three to that extent. Accordingly, we reverse the trial court’s order vacating Cherry’s deferred adjudication orders and render judgment denying Cherry relief on his applications for writs of habeas corpus.

REVERSED AND RENDERED.