Opinion issued July 19, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00960-CR ——————————— EX PARTE JOSE LUIS NASSAR RODRIGUEZ, APPELLANT
On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1484221-A
MEMORANDUM OPINION
Appellant, Jose Luis Nassar Rodriguez, appeals from the trial court’s denial
of his application for a post-conviction writ of habeas corpus.1 In his application,
1 See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2015) (providing person confined on charge of felony conviction who received community supervision may apply for writ of habeas corpus); Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim. App. 1993) (“If a misdemeanor judgment is void, and its existence may have detrimental collateral consequences in some future proceeding, it may be collaterally attacked, whether or not a term of probation was successfully served appellant argues that (1) he received ineffective assistance of counsel because his
trial counsel failed to accurately advise him regarding immigration and (2) his plea
was involuntary because he did not understand the relevant circumstances about his
immigration status.
We affirm.
Background
According to his application, appellant pleaded guilty to burglary of a building
on March 15, 2017, and the trial court sentenced him to community supervision.2
On November 13, 2017, appellant filed an application for writ of habeas corpus
challenging the voluntariness of his guilty plea based on allegedly ineffective
assistance of counsel. Appellant argued that his trial attorney, William Cheadle, did
not provide him with advice that burglary of a building is considered an aggravated
felony under immigration law. Appellant also argued that the plea admonishments
he signed did not provide effective notice of the immigration effects of the plea.
And, the “three pages of the admonishments were not completely and accurately
translated to him.” Appellant further argued that he would not have agreed to
community supervision had he known that he would have been “swiftly removed
out.”); see also State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). 2 See TEX. PENAL CODE ANN. § 30.02 (West Supp. 2017).
2 from the community by DHS” and that his plea was involuntary because he did not
understand the immigration consequences of the plea. The trial court denied his
application on November 29, 2017. Appellant timely filed a notice of appeal on
December 14, 2017.3
The trial court clerk filed the clerk’s record on December 27, 2017. The
reporter’s record in this case was due January 22, 2018. See TEX. R. APP. P. 4.1(a),
31.1. However, the court reporter notified this Court that no reporter’s record had
been taken. On February 9, 2018, appellant requested that we abate the appeal for
the trial court to enter findings of fact and conclusions of law. On February 15, 2018,
we granted appellant’s motion. We received a supplemental clerk’s record with the
trial court’s findings of fact and conclusions of law on March 21, 2018.
Standard of Review
In reviewing the trial court’s order denying habeas corpus relief, the appellate
court affords “almost total deference to the judge’s determination of the historical
facts that are supported by the record, especially when the fact findings are based on
an evaluation of credibility and demeanor.” Ex parte Wilson, 171 S.W.3d 925, 928
(Tex. App.—Dallas 2005, no pet.); see also Phuong Anh Thi Le v. State, 300 S.W.3d
324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that, in reviewing
3 See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 8 (West 2015) (providing that if application is denied in whole or part, applicant may appeal under Article 44.02 and Rule 31 of Texas Rules of Appellate Procedure). 3 trial court’s ruling on habeas corpus petition, reviewing court must defer to all of
trial court’s implied factual findings supported by record). The appellate court “will
sustain the lower court’s ruling if it is reasonably supported by the record and is
correct on any theory of law applicable to the case.” State v. Dixon, 206 S.W.3d
587, 590 (Tex. Crim. App. 2006).
When, as here, an applicant seeks relief under Article 11.072 from an order
that orders community supervision, “the trial judge is the sole finder of fact.” See
Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (citing State v.
Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013)). In habeas corpus
proceedings, “[v]irtually every fact finding involves a credibility determination,”
and “the fact finder is the exclusive judge of the credibility of the witnesses.” Ex
parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996). Accordingly, we
must afford almost total deference to the habeas court’s findings of fact when those
findings are supported by the record. See Torres, 483 S.W.3d at 43. “We similarly
defer to any implied findings and conclusions supported by the record.” Ex parte
Harrington, 310 S.W.3d 452, 456 (Tex. Crim. App. 2010). However, we review de
novo mixed questions of law and fact that do not depend upon credibility and
demeanor. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.—Houston [1st
Dist.] 2014, no pet.).
4 Findings of Fact
In its findings of fact, the trial court found:
1. Defendant hired the attorney of his choice, Mr. William Cheadle.
2. Attorney Cheadle’s signature appears on the plea papers including the document entitled “Immigration Admonishments.”
3. “Immigration Admonishments” are not routinely included in plea papers in the 180th Criminal District Court but are executed only when there is reason to believe that the Defendant is not a citizen of the United States.
4. Applicant’s signature appears on the document “Immigration Admonishments” as well as his initials on the various particular warnings.
5. The defendant’s initial on clause (1) on “Immigration Admonishments” expressly asserts that he “freely, knowingly, and voluntary [sic] executed this statement.”
6. Attorney Cheadle’s signature appears on the document “Immigration Admonishments.”
7. The attorney signature expressly avows that the attorney has “fully advised the above named defendant regarding the immigration consequences” and that “this document was executed by him/her knowingly and voluntarily.”
8. Judge Rains accepted this agreed plea.
9. Judge Brian Rains’s signature appears on the document “Immigration Admonishments.”
10. The judge’s signature expressly states “I have admonished the Defendant of the immigration consequences” and “find that the Defendant’s attorney has advised the defendant 5 regarding immigration consequences” and “further find that the Defendants [sic] is aware of and understands the immigration consequences.”
11.
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Opinion issued July 19, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00960-CR ——————————— EX PARTE JOSE LUIS NASSAR RODRIGUEZ, APPELLANT
On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1484221-A
MEMORANDUM OPINION
Appellant, Jose Luis Nassar Rodriguez, appeals from the trial court’s denial
of his application for a post-conviction writ of habeas corpus.1 In his application,
1 See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2015) (providing person confined on charge of felony conviction who received community supervision may apply for writ of habeas corpus); Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim. App. 1993) (“If a misdemeanor judgment is void, and its existence may have detrimental collateral consequences in some future proceeding, it may be collaterally attacked, whether or not a term of probation was successfully served appellant argues that (1) he received ineffective assistance of counsel because his
trial counsel failed to accurately advise him regarding immigration and (2) his plea
was involuntary because he did not understand the relevant circumstances about his
immigration status.
We affirm.
Background
According to his application, appellant pleaded guilty to burglary of a building
on March 15, 2017, and the trial court sentenced him to community supervision.2
On November 13, 2017, appellant filed an application for writ of habeas corpus
challenging the voluntariness of his guilty plea based on allegedly ineffective
assistance of counsel. Appellant argued that his trial attorney, William Cheadle, did
not provide him with advice that burglary of a building is considered an aggravated
felony under immigration law. Appellant also argued that the plea admonishments
he signed did not provide effective notice of the immigration effects of the plea.
And, the “three pages of the admonishments were not completely and accurately
translated to him.” Appellant further argued that he would not have agreed to
community supervision had he known that he would have been “swiftly removed
out.”); see also State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). 2 See TEX. PENAL CODE ANN. § 30.02 (West Supp. 2017).
2 from the community by DHS” and that his plea was involuntary because he did not
understand the immigration consequences of the plea. The trial court denied his
application on November 29, 2017. Appellant timely filed a notice of appeal on
December 14, 2017.3
The trial court clerk filed the clerk’s record on December 27, 2017. The
reporter’s record in this case was due January 22, 2018. See TEX. R. APP. P. 4.1(a),
31.1. However, the court reporter notified this Court that no reporter’s record had
been taken. On February 9, 2018, appellant requested that we abate the appeal for
the trial court to enter findings of fact and conclusions of law. On February 15, 2018,
we granted appellant’s motion. We received a supplemental clerk’s record with the
trial court’s findings of fact and conclusions of law on March 21, 2018.
Standard of Review
In reviewing the trial court’s order denying habeas corpus relief, the appellate
court affords “almost total deference to the judge’s determination of the historical
facts that are supported by the record, especially when the fact findings are based on
an evaluation of credibility and demeanor.” Ex parte Wilson, 171 S.W.3d 925, 928
(Tex. App.—Dallas 2005, no pet.); see also Phuong Anh Thi Le v. State, 300 S.W.3d
324, 327 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that, in reviewing
3 See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 8 (West 2015) (providing that if application is denied in whole or part, applicant may appeal under Article 44.02 and Rule 31 of Texas Rules of Appellate Procedure). 3 trial court’s ruling on habeas corpus petition, reviewing court must defer to all of
trial court’s implied factual findings supported by record). The appellate court “will
sustain the lower court’s ruling if it is reasonably supported by the record and is
correct on any theory of law applicable to the case.” State v. Dixon, 206 S.W.3d
587, 590 (Tex. Crim. App. 2006).
When, as here, an applicant seeks relief under Article 11.072 from an order
that orders community supervision, “the trial judge is the sole finder of fact.” See
Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (citing State v.
Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013)). In habeas corpus
proceedings, “[v]irtually every fact finding involves a credibility determination,”
and “the fact finder is the exclusive judge of the credibility of the witnesses.” Ex
parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996). Accordingly, we
must afford almost total deference to the habeas court’s findings of fact when those
findings are supported by the record. See Torres, 483 S.W.3d at 43. “We similarly
defer to any implied findings and conclusions supported by the record.” Ex parte
Harrington, 310 S.W.3d 452, 456 (Tex. Crim. App. 2010). However, we review de
novo mixed questions of law and fact that do not depend upon credibility and
demeanor. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.—Houston [1st
Dist.] 2014, no pet.).
4 Findings of Fact
In its findings of fact, the trial court found:
1. Defendant hired the attorney of his choice, Mr. William Cheadle.
2. Attorney Cheadle’s signature appears on the plea papers including the document entitled “Immigration Admonishments.”
3. “Immigration Admonishments” are not routinely included in plea papers in the 180th Criminal District Court but are executed only when there is reason to believe that the Defendant is not a citizen of the United States.
4. Applicant’s signature appears on the document “Immigration Admonishments” as well as his initials on the various particular warnings.
5. The defendant’s initial on clause (1) on “Immigration Admonishments” expressly asserts that he “freely, knowingly, and voluntary [sic] executed this statement.”
6. Attorney Cheadle’s signature appears on the document “Immigration Admonishments.”
7. The attorney signature expressly avows that the attorney has “fully advised the above named defendant regarding the immigration consequences” and that “this document was executed by him/her knowingly and voluntarily.”
8. Judge Rains accepted this agreed plea.
9. Judge Brian Rains’s signature appears on the document “Immigration Admonishments.”
10. The judge’s signature expressly states “I have admonished the Defendant of the immigration consequences” and “find that the Defendant’s attorney has advised the defendant 5 regarding immigration consequences” and “further find that the Defendants [sic] is aware of and understands the immigration consequences.”
11. The plea was translated by certified court translator Glenn Dodson.
Conclusions of Law
In its conclusions of law, the trial court stated,
1. Applicant was fully informed of immigration consequences prior to his plea.
2. Applicant freely and voluntarily entered his plea of guilty.
Discussion
In the absence of a reporter’s record, an appellate court considering a habeas
corpus application will presume that there was evidence to support the trial court’s
judgment. In re Mott, 137 S.W.3d 870, 875 (Tex. App.—Houston [1st Dist.] 2004,
orig. proceeding). However, in a proceeding to review a denial of an application for
writ of habeas corpus, the applicant still bears the burden of proving that he is
entitled to relief by a preponderance of the evidence. Ex parte Richardson, 70
S.W.3d 865, 870 (Tex. Crim. App. 2002).
Applicant has not shown that he is entitled to relief. Applicant seeks habeas
relief on the basis that his counsel rendered ineffective assistance of counsel by
failing to properly admonish him of the immigration consequences before he entered
his guilty plea. In effect, he asserts that he did not voluntarily plead guilty.
6 However, the clerk’s record does not include the indictment, the plea agreement, any
written admonishments, or the underlying judgment. Nor is there any record of the
plea hearing.
Instead, the clerk’s record contains the applicant’s application for writ of
habeas corpus, notice of appeal, and the trial court’s certification of defendant’s right
to appeal. In the information sheet filed by the court reporter, the court reporter
informed this Court that there is no reporter’s record. In the absence of a reporter’s
record, a court reviewing the denial of a habeas application presumes there was
evidence to support the trial court’s judgment. Ex parte McKeand, 454 S.W.3d 52,
54 (Tex. App.—Houston [1st Dist.] 2014, no pet.). The application for writ of
habeas corpus itself is also not supported by any evidence. Applicant neither filed
an affidavit discussing what information his trial counsel gave him regarding
immigration, nor did applicant include an affidavit from his trial counsel. See Ex
parte Cummins, 169 S.W.3d 752, 758 (Tex. App.—Fort Worth 2005, orig.
proceeding) (holding that trial court did not abuse discretion in denying habeas after
applicant offered no evidence supporting allegations).
Based upon the limited record before us, we conclude that applicant has failed
to meet his burden. See Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim.
App. 2005) (“It is the applicant’s obligation to provide a sufficient record that
supports his factual allegations with proof by a preponderance of the evidence.”);
7 Washington v. State, 326 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2010,
no pet.) (applicant “bears the burden of ensuring that a sufficient record is presented
to show error requiring reversal on appeal.”); see also Ex parte Tovar, 901 S.W.2d
484, 486 (Tex. Crim. App. 1995) (“An applicant seeking relief from the failure to
receive the admonishment required by Art. 26.13(a)(4) must establish that there was
no admonishment given consistent with Art. 26.13(a)(4) or otherwise suggesting the
possibility of deportation, and that the lack of admonishment affected his decision
to enter a plea of guilty.”).
Conclusion
We affirm the trial court’s order denying appellant’s application for writ
habeas corpus.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).