NUMBER 13-16-00462-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE FABIAN GARCIA
On appeal from the 206th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria
Appellant Fabian Garcia appeals the trial court’s denial of his application for post-
conviction writ of habeas corpus pursuant to article 11.072 of the code of criminal
procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West, Westlaw through 2017
1st C.S.). Garcia also appeals the trial court’s denial of his motions for reconsideration
and new trial. By seven issues, which we construe as four, Garcia asserts that the habeas
court erred by: (1) denying his motions for reconsideration and new trial; (2) failing to
exercise jurisdiction in not giving dispositive rulings regarding the motions for reconsideration and new trial; (3) denying his petition for habeas relief; and (4) finding
that on “19 November 2015, the presiding Judge of the Drug Court signed an order
dismissing the criminal action in cause numbered CR-2523-14-D.” Without addressing
the merits of Garcia’s issues on appeal, we reverse and remand.
I. BACKGROUND
On July 30, 2014, Fabian Garcia was indicted for intentionally and knowingly
possessing cocaine in an amount less than one gram, a state jail felony. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115 (West, Westlaw through 2017 1st C.S.). On November
14, 2014, Garcia entered into an agreement with the Hidalgo County District Attorney’s
Office to be placed on the Drug Court Pre-Trial Diversion Program (PTD). As part of the
agreement for entry into PTD, Garcia signed numerous documents including a “Waiver
of Rights, Consent to Stipulation of Evidence and/or Testimony & Plea of Guilty or No
Contest.” Garcia successfully completed PTD and the State filed a motion to dismiss
which was granted on November 19, 2015. On June 13, 2016, represented by new
counsel, Garcia filed his petition for writ of habeas corpus pursuant to, inter alia, article
11.072. See TEX. CODE CRIM. PROC. ANN. art. 11.072.
In his application, Garcia alleged that he received ineffective assistance of counsel.
Garcia argued that his trial defense counsel failed to correctly inform him of the exact
immigration consequences faced by Garcia before he pleaded guilty. Garcia further
contended that his trial counsel failed to properly investigate the circumstances
surrounding his arrest to support a contested hearing on defense’s motion to suppress.
The habeas court held a hearing and ultimately denied Garcia’s application. This appeal
followed.
2 II. WRIT OF HABEAS CORPUS
By his fifth and sixth issues, which we construe as issue three, Garcia contends
the habeas court abused its discretion by denying his application for habeas corpus relief.
A. Standard of Review
We review a trial court's denial of habeas corpus relief under an abuse of discretion
standard and consider the facts in the light most favorable to the habeas court's ruling.
Ex parte Reed, 402 S.W.3d 39, 41 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). An
applicant seeking post-conviction habeas corpus relief bears the burden of establishing
by a preponderance of the evidence that the facts entitle him to relief. Id. at 41–42. We
afford almost complete deference to the habeas court's determination of historical facts
supported by the record, especially when those factual findings rely on an evaluation of
credibility and demeanor. Id. at 42. We apply the same deference to review the habeas
court's application of law to fact questions if the resolution of those determinations rests
on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate question
turns on an application of legal standards, we review the issue de novo. Id.
The two-pronged Strickland test applies when a habeas applicant challenges a
guilty plea based on ineffective assistance of counsel. Ex parte Murillo, 389 S.W.3d 922,
926 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Hill v. Lockhart, 474 U.S. 52,
58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). The applicant must show by a preponderance
of the evidence that (1) trial counsel's performance fell below the objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. Strickland
3 v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see
Murillo, 389 S.W.3d at 926.
III. ANALYSIS
Article 11.072 of the Texas Code of Criminal Procedure “establishes the
procedures for an application for a writ of habeas corpus in a felony misdemeanor case
in which the applicant seeks relief from an order or judgment of conviction ordering
community supervision.” TEX. CODE CRIM. PROC. ANN. art. 11.072, §1. If the court
determines that the applicant is manifestly entitled to no relief, it shall enter a written order
denying the application as frivolous. Id. §7(a). Otherwise, the court’s written order
granting or denying relief must include findings of fact and conclusions of law. Id.
The legislature intended article 11.072 to be the exclusive means by which trial
courts exercise their original habeas corpus jurisdiction in the cases to which it applies.
Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008); see Ex parte Ali, Nos.
03-10-00206-CR, 03-10-00207-CR, 2010 WL 5376860, at *2 (Tex. App.—Austin Dec. 16,
2010, no pet.) (mem. op., not designated for publication). Here, the trial court’s order
stated “[t]hus, after reaching the merits of all material issues raised in said filed petition,
the court finds that all relief should be denied for the court is unable to fashion or provide
Appellant-Defendant any remedy after the indictment pending in CR-2523-14-D was
dismissed by court order.” The trial court did not find that the applicant was “manifestly
entitled to no relief” and deny his application as “frivolous.” See TEX. CODE CRIM. PROC.
ANN. art. 11.072, §7(a). Nor did the trial court include any findings of fact and conclusions
of law in its order. See id. Therefore, the trial court did not follow the procedures set forth
in article 11.072.
4 Insofar as the trial court’s order purports to deny issuance of the writ without
addressing the merits of the application, it is inconsistent with article 11.072, sections 4(a)
and 6, and it does not comply with 7(a). See id.; see also Ex parte Ali, 2010 WL 5376860
at *2. We hold that the record before us today is factually inadequate to permit us to
appropriately determine the merits of Garcia’s application. See Ex parte Hernandez, 398
S.W.3d 369, 374 (Tex. App.—Beaumont 2013, no pet.) (“An appellate court may remand
a habeas proceeding to the trial court for further proceedings if the factual record has not
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NUMBER 13-16-00462-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE FABIAN GARCIA
On appeal from the 206th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria
Appellant Fabian Garcia appeals the trial court’s denial of his application for post-
conviction writ of habeas corpus pursuant to article 11.072 of the code of criminal
procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West, Westlaw through 2017
1st C.S.). Garcia also appeals the trial court’s denial of his motions for reconsideration
and new trial. By seven issues, which we construe as four, Garcia asserts that the habeas
court erred by: (1) denying his motions for reconsideration and new trial; (2) failing to
exercise jurisdiction in not giving dispositive rulings regarding the motions for reconsideration and new trial; (3) denying his petition for habeas relief; and (4) finding
that on “19 November 2015, the presiding Judge of the Drug Court signed an order
dismissing the criminal action in cause numbered CR-2523-14-D.” Without addressing
the merits of Garcia’s issues on appeal, we reverse and remand.
I. BACKGROUND
On July 30, 2014, Fabian Garcia was indicted for intentionally and knowingly
possessing cocaine in an amount less than one gram, a state jail felony. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115 (West, Westlaw through 2017 1st C.S.). On November
14, 2014, Garcia entered into an agreement with the Hidalgo County District Attorney’s
Office to be placed on the Drug Court Pre-Trial Diversion Program (PTD). As part of the
agreement for entry into PTD, Garcia signed numerous documents including a “Waiver
of Rights, Consent to Stipulation of Evidence and/or Testimony & Plea of Guilty or No
Contest.” Garcia successfully completed PTD and the State filed a motion to dismiss
which was granted on November 19, 2015. On June 13, 2016, represented by new
counsel, Garcia filed his petition for writ of habeas corpus pursuant to, inter alia, article
11.072. See TEX. CODE CRIM. PROC. ANN. art. 11.072.
In his application, Garcia alleged that he received ineffective assistance of counsel.
Garcia argued that his trial defense counsel failed to correctly inform him of the exact
immigration consequences faced by Garcia before he pleaded guilty. Garcia further
contended that his trial counsel failed to properly investigate the circumstances
surrounding his arrest to support a contested hearing on defense’s motion to suppress.
The habeas court held a hearing and ultimately denied Garcia’s application. This appeal
followed.
2 II. WRIT OF HABEAS CORPUS
By his fifth and sixth issues, which we construe as issue three, Garcia contends
the habeas court abused its discretion by denying his application for habeas corpus relief.
A. Standard of Review
We review a trial court's denial of habeas corpus relief under an abuse of discretion
standard and consider the facts in the light most favorable to the habeas court's ruling.
Ex parte Reed, 402 S.W.3d 39, 41 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). An
applicant seeking post-conviction habeas corpus relief bears the burden of establishing
by a preponderance of the evidence that the facts entitle him to relief. Id. at 41–42. We
afford almost complete deference to the habeas court's determination of historical facts
supported by the record, especially when those factual findings rely on an evaluation of
credibility and demeanor. Id. at 42. We apply the same deference to review the habeas
court's application of law to fact questions if the resolution of those determinations rests
on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate question
turns on an application of legal standards, we review the issue de novo. Id.
The two-pronged Strickland test applies when a habeas applicant challenges a
guilty plea based on ineffective assistance of counsel. Ex parte Murillo, 389 S.W.3d 922,
926 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Hill v. Lockhart, 474 U.S. 52,
58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). The applicant must show by a preponderance
of the evidence that (1) trial counsel's performance fell below the objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. Strickland
3 v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see
Murillo, 389 S.W.3d at 926.
III. ANALYSIS
Article 11.072 of the Texas Code of Criminal Procedure “establishes the
procedures for an application for a writ of habeas corpus in a felony misdemeanor case
in which the applicant seeks relief from an order or judgment of conviction ordering
community supervision.” TEX. CODE CRIM. PROC. ANN. art. 11.072, §1. If the court
determines that the applicant is manifestly entitled to no relief, it shall enter a written order
denying the application as frivolous. Id. §7(a). Otherwise, the court’s written order
granting or denying relief must include findings of fact and conclusions of law. Id.
The legislature intended article 11.072 to be the exclusive means by which trial
courts exercise their original habeas corpus jurisdiction in the cases to which it applies.
Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008); see Ex parte Ali, Nos.
03-10-00206-CR, 03-10-00207-CR, 2010 WL 5376860, at *2 (Tex. App.—Austin Dec. 16,
2010, no pet.) (mem. op., not designated for publication). Here, the trial court’s order
stated “[t]hus, after reaching the merits of all material issues raised in said filed petition,
the court finds that all relief should be denied for the court is unable to fashion or provide
Appellant-Defendant any remedy after the indictment pending in CR-2523-14-D was
dismissed by court order.” The trial court did not find that the applicant was “manifestly
entitled to no relief” and deny his application as “frivolous.” See TEX. CODE CRIM. PROC.
ANN. art. 11.072, §7(a). Nor did the trial court include any findings of fact and conclusions
of law in its order. See id. Therefore, the trial court did not follow the procedures set forth
in article 11.072.
4 Insofar as the trial court’s order purports to deny issuance of the writ without
addressing the merits of the application, it is inconsistent with article 11.072, sections 4(a)
and 6, and it does not comply with 7(a). See id.; see also Ex parte Ali, 2010 WL 5376860
at *2. We hold that the record before us today is factually inadequate to permit us to
appropriately determine the merits of Garcia’s application. See Ex parte Hernandez, 398
S.W.3d 369, 374 (Tex. App.—Beaumont 2013, no pet.) (“An appellate court may remand
a habeas proceeding to the trial court for further proceedings if the factual record has not
been sufficiently developed.”) (citing Ex parte Cherry, 232 S.W.3d 305, 308 (Tex. App.—
Beaumont 2007, pet. ref'd)); see also Ex parte Garcia, No. 13-14-00501-CR, 2016 WL
454997 (Tex. App.—Corpus Christi Feb. 4, 2016, no pet.) (mem. op., not designated for
publication). The “courts of appeals should not be forced to make assumptions (or
outright guesses)” about the reasons for a trial court's ruling. See State v. Cullen, 195
S.W.3d 696, 698 (Tex. 2006) (discussing its holding in the motion-to-suppress context).
And to hold otherwise would not do substantial justice to the parties in this case. See TEX.
R. APP. P. 31.2.
Therefore, without addressing the merits of the issues raised in this appeal, we
reverse the trial court’s order denying Garcia’s application for a writ of habeas corpus and
remand for proceedings consistent with this opinion. These remand proceedings may or
may not include the ordering of additional affidavits, depositions, interrogatories, or a
hearing, see TEX. CODE CRIM. PROC. ANN. art. 11.072, §6(b), but shall include a written
order either denying the application on the grounds that it is frivolous, or a written order
granting or denying the application which includes findings of fact and conclusions of law
as required by statute. Id. Following proceedings on remand, should either party desire
5 to appeal the trial court’s order, new notices of appeal will be required. See Ex parte
Cherry, 232 S.W.3d 305, 308.
IV. CONCLUSION
We reverse the trial court’s denial of Garcia’s application and remand for further
proceedings consistent with this opinion.
NORA L. LONGORIA Justice Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 29th day of March, 2018.