COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-04-572-CR
2-04-573-CR
EX
PARTE DARRIN MICHAEL CUMMINS
------------
FROM
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
OPINION
I. Introduction
Appellant,
Darrin Michael Cummins, appeals from the trial court’s order denying him
relief on his application for writ of habeas corpus filed pursuant to article
11.072 of the Texas Code of Criminal Procedure. In one point on appeal, Cummins
contends that the trial court abused its discretion in denying him relief.
We affirm.
II. Background Facts and Procedural History
On
January 21, 2004, pursuant to a plea bargain, Cummins entered a plea of guilty
to the felony offense of indecency with a child. On February 9, 2004, the trial
court accepted the plea of guilty, approved the plea bargain agreement, and
entered an order placing Cummins on deferred adjudication community supervision.
Thereafter, on September 27, 2004, Cummings filed an application for writ of
habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure
arguing that his guilty plea was involuntary because it was the result of the
ineffective assistance of counsel. In the writ, Cummins asserts that his trial
counsel erroneously advised him that his plea of guilty and placement on
deferred adjudication would not affect his employment, and that his trial
counsel neither advised him that he could appeal the order nor of the relevant
time limits for appeal.
On
November 1, 2004, the State filed a written response arguing that Cummins’s
writ should be denied because he had presented no evidence of ineffective
assistance. Attached to the State’s response was a sworn affidavit from
Cummins’s trial counsel asserting, among other things, that she did not advise
Cummins that his employment would not be affected and that Cummings had made no
indication that he wanted to appeal. The State also attached to its response
proposed findings of fact and conclusions of law. On November 16, 2004, the
trial court signed an order denying Cummins relief on his application for habeas
corpus and adopting the State’s findings of fact and conclusions of law. This
appeal followed.
III. Discussion
In
his sole point on appeal, Cummins contends that the trial court abused its
discretion in denying him the relief sought in his writ of habeas corpus because
the trial court failed to follow the standard or comply with the procedures for
hearing and evaluation of writs of habeas corpus brought pursuant to article
11.072 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.072
(Vernon 2005). Specifically, Cummins asserts that the trial court erroneously
applied the standard and procedures for evaluating post-conviction writs filed
under article 11.07 of the code of criminal procedure, not the standard and
procedures for writs filed under article 11.072 where the applicant seeks relief
from an order or judgment of conviction ordering community supervision. See
id. arts. 11.07, 11.072. He argues that unlike article 11.07, article 11.072
does not authorize the trial court to consider the State’s response or any
attachments thereto in evaluating the application, but instead “requires a
hearing of some sort, whether on ordered documents or live testimony—or both,
unless the application is denied as frivolous.” He argues that an application
for habeas corpus filed pursuant to article 11.072 is like a motion for new
trial, not a post-conviction writ of habeas corpus, with respect to whether a
hearing is required before the relief sought can be denied, and whether the
trial court can consider the State’s response and the attachments thereto in
evaluating the application. He asserts that as a result of the trial court’s
failure to follow the correct statute he was denied his constitutional rights of
due process and due course of law because he was denied the opportunity to
present evidence supporting his complaint and to confront and cross-examine his
former trial counsel.1 See U.S. Const. amends. V, VI, XIV; Tex. Const. art. I, §§ 3, 10, 13, 19; Tex. Code Crim. Proc. Ann. arts. 1.04,
1.05, 1.051 (Vernon 2005).
A. Standard of Review
We
generally review a trial court's decision to grant or deny relief on a writ of
habeas corpus under an abuse of discretion standard of review. Ex parte Mann,
34 S.W.3d 716, 718 (Tex. App.—Fort Worth 2000, no pet.); Ex parte Ayers,
921 S.W.2d 438, 440 (Tex. App.—Houston [1st Dist.] 1996, no pet.). However,
“an abuse of discretion review of trial court decisions is not necessarily
appropriate in the context of the application of law to facts when the decision
does not turn on the credibility or demeanor of witnesses.” Ex parte Martin,
6 S.W.3d 524, 526 (Tex. Crim. App. 1999); see also Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). Instead, an appellate court must conduct a
de novo review when “the trial judge is not in an appreciably better position
than the reviewing court to make that determination.” Guzman, 955
S.W.2d at 87; see also Mann, 34 S.W.3d at 718.
B. Statutory Construction and Analysis
When
we interpret statutes . . . we seek to effectuate the “collective” intent or
purpose of the legislators who enacted the legislation. Camacho v. State,
765 S.W.2d 431 (Tex.Cr.App.1989). We do so because our state constitution
assigns the law making function to the Legislature while assigning the
law interpreting function to the Judiciary. See Tex. Const. art.
II, § 1.
When attempting to discern this collective legislative intent or purpose, we
necessarily focus our attention on the literal text of the statute in question
and attempt to discern the fair, objective meaning of that text at the time of
its enactment. We do this because the text of the statute is the law in the
sense that it is the only thing actually adopted by the legislators, probably
through compromise, and submitted to the Governor for her signature. We focus on
the literal text also because the text is the only definitive evidence of
what the legislators (and perhaps the Governor) had in mind when the statute was
enacted into law. There really is no other certain method for determining the
collective legislative intent or purpose [that] was dominant at the time of
enactment. Yet a third reason for focussing [sic] on the literal text is that
the Legislature is constitutionally entitled to expect that the Judiciary
will faithfully follow the specific text that was adopted.
Thus, if the meaning of the statutory text, when read using the established
canons of construction relating to such text, should have been plain to the
legislators who voted on it, we ordinarily give effect to that plain meaning. Smith
v. State, 789 S.W.2d 590, 592 (Tex.Cr.App.1990). “‘Where the statute is
clear and unambiguous, the Legislature must be understood to mean what it has
expressed, and it is not for the courts to add or subtract from such a
statute.’” Coit v. State, 808 S.W.2d 473, 475 (Tex.Cr. App.1991)
(quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex.Cr.App.1967)).
Boykin
v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Article
11.072 of the Texas Code of Criminal Procedure establishes the procedures for
writs of habeas corpus in felony or misdemeanor cases where the applicant seeks
relief from an order or judgment of conviction ordering community supervision. Tex. Code Crim. Proc. Ann. art. 11.072,
§ 1. As to the procedures for the trial court’s evaluation of the writ,
article 11.072 provides, in relevant part:
Sec. 6. (a) Not later than the 60th day after the day on which the state’s
answer is filed, the trial court shall enter a written order granting or denying
the relief sought in the application.
(b)
In making its determination, the court may order affidavits, depositions,
interrogatories or a hearing, and may rely on the court’s personal
recollection.
Sec.
7. (a) If the court determines from the face of the application or documents
attached to the application that the applicant is manifestly entitled to no
relief, the court shall enter a written order denying the application as
frivolous. In any other case, the court shall enter a written order including
findings of fact and conclusions of law. The court may require the prevailing
party to submit a proposed order.
Tex. Code Crim. Proc. Ann. art. 11.072,
§§ 6, 7.
On
the other hand, article 11.07 of the code of criminal procedure sets forth the
procedures for post-conviction writs of habeas corpus in felony non-death
penalty cases. See id. art. 11.07, § 1. Article 11.07 provides,
in relevant part:
Sec. 3. (c) Within 20 days of the expiration of the time in which the state is
allowed to answer, it shall be the duty of the convicting court to decide
whether there are controverted, previously unresolved facts material to the
legality of the applicant’s confinement. . . . If the convicting court decides
that there are no such issues, the clerk shall immediately transmit to the Court
of Criminal Appeals a copy of the application, any answers filed, and a
certificate reciting the date upon which that finding was made. Failure of the
court to act within the allowed 20 days shall constitute such a finding.
(d)
If the convicting court decides that there are controverted, previously
unresolved facts which are material to the legality of the applicant’s
confinement, it shall enter an order within 20 days of the expiration of the
time allowed for the state to reply, designating the issues of fact to be
resolved. To resolve those issues the court may order affidavits, depositions,
interrogatories, and hearings, as well as using personal recollection. . . .
Id. art. 11.07, § 3(c), (d).
In
support of his contention that the trial court applied the standard and
procedures found in article 11.07, Cummins points out that the trial court, in
certifying his right to appeal, indicated that the appeal was taken from a
post-conviction writ. He also points out that the trial court denied him relief
without a hearing on the basis of the State’s response, which included the
exparte affidavit of his former trial counsel.
While
it is true that the trial court, in certifying Cummins’s right to appeal,
indicated that the appeal was from an appealable order denying a post-conviction
writ, that certification does not persuade us that the trial court applied the
standard and procedures for post-convictions writs found in article 11.07.
Cummins’s application for habeas corpus clearly indicates that it was filed
pursuant to article 11.072 of the Texas Code of Criminal Procedure, as does the
State’s response, and we find nothing in the trial court’s order denying the
requested relief, or in its findings of fact and conclusions of law, to indicate
that the application was denied pursuant to any other section of the code. Nor
does the trial court’s denial of relief, without a hearing, based upon
Cummins’s application, the State’s response, or the affidavit of Cummins’s
trial counsel, lead us to the conclusion that the trial court employed the wrong
statute.
Contrary
to Cummins’s assertion, we find nothing in article 11.072 requiring the
trial court to “order” documents or to conduct a hearing on an application
for habeas corpus before rendering its decision on the relief sought. See id.
art. 11.072. While section 6(b) clearly indicates that in making its
determination the trial court may order affidavits, depositions,
interrogatories, or a hearing, it does not require that the trial court
do so. See id. art. 11.072, § 6(b). In addition, we find nothing in
article 11.072 prohibiting the trial court from considering evidence filed with
the application or with the State’s response. See id. art. 11.072. In
that regard, section 7 of article 11.072 refers to the trial court’s
consideration of “documents attached to the application,” albeit in
determining if the application is frivolous, but that language combined with the
permissive language found in section 6 leads us to conclude that the legislature
did not intend to prohibit the trial court from considering such evidence
without hearing. See id. art. 11.072, §§ 6, 7.
We
also find Cummins’s argument that applications for habeas relief filed
pursuant to article 11.072 should be treated like a motion for new trial
unpersuasive. An application for habeas corpus is not like a motion for new
trial in the sense that a habeas proceeding is not part of the underlying
criminal prosecution against the applicant. See Greenwell v. Court of Appeals
13th Jud. Dist., 159 S.W.3d 645, 650 (Tex. Crim. App. 2005) (indicating a
habeas proceeding is separate from the underlying criminal prosecution). In
addition, we find no indication in article 11.072 that the legislature intended
for the trial court to treat applications for habeas relief, filed pursuant to
that article, like motions for new trial. Compare Tex. Code Crim. Proc. Ann. art. 11.072 with
Tex. R. App. P. 21. Further,
because the language of articles 11.07 and 11.072 are very similar, we believe
that the legislature intended for article 11.072 applications to be treated much
like applications submitted under article 11.07. Compare Tex. Code Crim. Proc. Ann. art. 11.07 with
Tex. Code Crim. Proc. Ann. art.
11.072.
As
to the merits of Cummins’s writ, to prevail on a writ of habeas corpus, the
proponent must prove his allegations by a preponderance of the evidence. See
Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995); Ex parte Adams,
707 S.W.2d 646, 648 (Tex. Crim. App. 1986); Barnes v. State, 70 S.W.3d
294, 301 (Tex. App.—Fort Worth 2002, pet. ref'd). Here, although Cummins
alleges in his application for writ of habeas corpus that his trial counsel was
ineffective, he offered no evidence supporting his allegations. He did, however,
in his prayer request a hearing on the merits. The State responded that no
hearing was necessary as the trial court could resolve the matter based on the
record. The State pointed out that Cummins had offered no evidence of his
assertions and that he bore the burden of proof. In addition, the State tendered
the sworn affidavit of Cummins’s trial counsel responding to the assertions in
Cummins’s writ. Cummins did not reply to the State’s assertion that no
hearing was necessary, offer any evidence controverting the sworn affidavit of
his former trial counsel, or move to strike the affidavit.
Thus,
based upon the evidence before the trial court at the time of its ruling, we
cannot say that the trial court abused its discretion in denying Cummins relief.
We overrule Cummins’s sole point on appeal.
IV. Conclusion
Having
overruled Cummins’s sole point on appeal, we affirm the trial court’s
judgment.
BOB
MCCOY
JUSTICE
PANEL
B: HOLMAN, GARDNER, and MCCOY, JJ.
PUBLISH
DELIVERED:
July 14, 2005
NOTES
1.
Cummins does not challenge the constitutionality of article 11.072; rather, his
argument is that the trial court denied him his due process and due course of
law by failing to follow article 11.072. See Tex. Code Crim. Proc. Ann. art.
11.072. Accordingly, we do not address the constitutionality of article
11.072.