Ex Parte: Francisco Flores

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § No. 08-09-00285-CR § Appeal from the EX PARTE FRANCISCO FLORES. § 65th District Court § of El Paso County, Texas § (TC# 53384-65-1) §

OPINION

Applicant, Francisco Flores, appeals from the trial court’s denial of habeas corpus relief. We

affirm the judgment of the trial court.

BACKGROUND

On June 9, 1988, El Paso police arrested Flores and Benigno Ramirez for possession of more

than 200 pounds of marihuana found inside a residence at 216 Cullen Street in El Paso. On August

4, 1988, an El Paso County grand jury returned an indictment charging Flores with felony possession

of the marihuana.1 See TEX . HEALTH & SAFETY CODE ANN . § 481.121 (West 2010).

On October 11, 1990, Flores’ retained defense counsel, Russell M. Aboud, filed a motion to

withdraw. On October 16, 1990, the trial court granted Aboud’s motion. On that same day, Flores

retained Samuel J. Dwyer as defense counsel. On October 17, 1990, Flores pled nolo contendere to

the charge in the indictment. The trial court assessed Flores’ punishment at imprisonment for ten

years.

On November 13, 1990, Flores filed a motion for new trial. On November 14, 1990, Flores

1 It appears from the record that Ramirez was also indicted in relation to the marihuana. filed an amended motion for new trial, in which he argued that the trial court failed to give him and

defense counsel enough time to prepare for trial. On January 15, 1991, the trial court denied Flores’

amended motion for new trial. Flores did not appeal from the trial court’s order. On March 1, 1991,

the trial court suspended further execution of Flores’ sentence and placed him on probation for a

period of ten years.

On November 7, 1996, Flores filed a motion asking the trial court to terminate his probation,

permit him to withdraw his plea of nolo contendere, dismiss the indictment against him, and

discharge him. Later that day, the trial court issued an order referring Flores’ motion to the jail

magistrate, the Honorable James T. Carter, for disposition. On November 15, 1996, the magistrate

issued an order granting Flores’ motion in all respects. See TEX . CODE CRIM . PROC. ANN . art 42.12,

§ 20 (West 2006). The order stated that Flores’ probation was terminated, that he was permitted to

withdraw his plea, that the indictment against him was dismissed, and that he was “released from

all penalties and disabilities resulting from the offense.”

On August 12, 2009, Flores filed an application for writ of habeas corpus in the convicting

trial court, asking that court “to vacate and set aside his plea of nolo contendere . . . .”2 See TEX .

CODE CRIM . PROC. ANN . art. 11.072 (West 2005). Flores argued in his application that he was

“illegally restrained”3 because, as a collateral consequence of his nolo contendere plea, he “is now

removable from the United States.” More specifically, Flores argued that his guilty plea ought to

be set aside because: (1) defense counsel Dwyer (now deceased) rendered ineffective assistance, in

2 Oddly, Flores, in his application for habeas corpus relief, does not mention Magistrate Carter’s order.

3 Habeas corpus is available only to applicants who are “restrained in their liberty.” T EX . C O D E C RIM . P RO C . A N N . art. 11.01 (W est 2005). The Court of Criminal Appeals has reasoned that potential collateral consequences may “restrain” an applicant’s liberty such that habeas corpus relief is available. See Ex parte Ormsby, 676 S.W .2d 130, 132 (Tex. Crim. App. 1984); G. Dix & J. Schmolesky, Texas Practice Series: Criminal Practice and Procedure §§ 34:4 & 58:19 (3rd ed. 2011). violation of the Sixth Amendment, by failing to advise him of his right to appeal the issue of whether

his nolo contendere plea was voluntarily, knowingly, and intelligently made; (2) the trial court judge

(also now deceased) coerced him into entering a nolo contendere plea and thereby deprived him of

due process of law; (3) defense counsel Dwyer rendered ineffective assistance by advising him to

enter a nolo contendere plea; (4) he was constructively denied effective assistance of counsel by

defense counsel Aboud, who represented the co-defendant on the same charge, because there was

an actual conflict of interest in the joint representation; (5) defense counsel Aboud rendered

ineffective assistance by failing to pursue a motion to suppress; (6) defense counsel Dwyer also

rendered ineffective assistance by failing to pursue a motion to suppress; (7) defense counsel Dwyer

rendered ineffective assistance by failing to thoroughly investigate the facts of the case before

recommending to Flores that he enter a plea of nolo contendere; (8) defense counsel Aboud rendered

ineffective assistance by waiting until four days before the start of Flores’ trial to move to withdraw;

and (9) Flores is actually innocent of the charge in the indictment.

On September 15, 2009, the State filed an answer to Flores’ application for habeas corpus

relief. In its answer, the State argued that Flores’ claims ought to be denied on the basis of laches.

On September 30, 2009, the convicting trial court issued a written order denying all of

Flores’ claims because they were frivolous, should have been raised on appeal, or were barred by

laches.

On appeal to this Court, Flores brings six points of error, in which he argues that the

convicting trial court erred in denying his claims.

DISCUSSION

“An appellate court must uphold a trial court ruling that is reasonably supported by the record

and is correct under any theory of law applicable to the case.” State v. White, 306 S.W.3d 753, 757 n.10 (Tex. Crim. App. 2010). Here, we are persuaded that the convicting court’s rulings on Flores’

habeas claims are correct under a theory of law applicable to the case. Leaving aside for the moment

the convicting trial court’s stated reasons for its rulings – which we need not address – it is plain to

us that Flores’ request is moot, because in 1996 Magistrate Carter ordered that he be allowed to

withdraw his plea and that the indictment be dismissed. It is apparent from Flores’ application that

he fears deportation. However, no order from this Court can give Flores, with respect to the prospect

of his deportation, any stated relief that he does not already have.

CONCLUSION

We affirm the judgment of the convicting trial court.

GUADALUPE RIVERA, Justice July 13, 2011

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)