AFFIRM; and Opinion Filed August 12, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-11-01349-CR
EX PARTE ALFREDO OLVERA
On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. W-199-81492-09
MEMORANDUM OPINION ON REMAND Before Justices Francis, Lang-Miers, and Evans Opinion by Justice Lang-Miers We issue this opinion on remand from the Texas Court of Criminal Appeals in Ex parte
Olvera, No. PD-1215-12, 2013 WL 1149926 (Tex. Crim. App. Mar. 20, 2013) (per curiam) (not
designated for publication). We issue this memorandum opinion pursuant to Texas Rule of
Appellate Procedure 47.4 because the law to be applied in the case is well settled.
In October 2009, Alfredo Olvera pleaded guilty to the offense of assault of a public
servant. Pursuant to a plea agreement, the trial court deferred adjudicating appellant’s guilt,
placed him on community supervision for five years, and assessed a $500 fine. In December
2010, appellant traveled to Mexico after getting written permission from his supervision officer.
When he tried to return, he was denied reentry by U.S. Customs and Border Protection because
he was “identified as an alien who is subject to Removal (Deportation) Proceedings for his/her
prior criminal conviction.” Appellant filed an application for a writ of habeas corpus alleging that his guilty plea was
involuntary because, among other reasons, his lawyer was ineffective. After an evidentiary
hearing, the trial court denied relief. Appellant appealed the denial of habeas relief and also
sought permission to file an out-of-time direct appeal of his guilty plea. Without reaching all of
appellant’s issues on appeal, we reversed the trial court’s order denying habeas relief because we
concluded that counsel rendered ineffective assistance under Padilla v. Kentucky, 559 U.S. 356
(2010), when he did not advise appellant that he would be deported if he pleaded guilty. Ex parte
Olvera, 394 S.W.3d 572, 574 (Tex. App.—Dallas 2012), rev’d, No. PD-1215-12, 2013 WL
1149926 (Tex. Crim. App. Mar. 20, 2013) (per curiam) (not designated for publication).
The State filed a petition for discretionary review arguing that we incorrectly applied
Padilla. While the State’s petition was pending, the United States Supreme Court decided
Chaidez v. United States, __ U.S. __, 133 S.Ct. 1103, 1107, 1113 (2013), in which it held that
Padilla did not apply retroactively. The Texas Court of Criminal Appeals adopted the reasoning
in Chaidez as a matter of state law in Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim.
App. 2013). The court vacated our judgment in this case and remanded to us in light of its
decision in Ex parte De Los Reyes. Ex parte Olvera, 2013 WL 1149926, at *1. On remand, the
parties waived further briefing. Having now considered all of appellant’s issues in the appeal
from the order denying habeas relief, we affirm the trial court’s order.
STANDARD OF REVIEW
When we review a trial court’s ruling on an application for a writ of habeas corpus, we
examine the evidence in the light most favorable to the trial court’s ruling and uphold the trial
court’s ruling absent an abuse of discretion. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.
Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335
(Tex. Crim. App. 2007). We afford almost total deference to the court’s determination of the
–2– historical facts that are supported by the record, especially when those facts are based on an
evaluation of credibility and demeanor. Id. If a trial court does not make explicit findings, as
here, we grant deference to implicit findings that support the court’s ruling. Id. at 819. We will
reverse the trial court’s ruling only if we conclude that it is arbitrary, unreasonable, and made
without reference to guiding rules or principles. See id.
APPLICABLE LAW
A guilty plea waives the right to a jury trial, the right to confront one’s accusers, and the
right not to incriminate oneself. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).
For a guilty plea to be consistent with due process, it must be entered knowingly, intelligently,
and voluntarily. Id. In other words, the “guilty plea must be the expression of the defendant’s
own free will and must not be induced by threats, misrepresentations, or improper promises.” Id.
Generally, a guilty plea is voluntary if the defendant was made fully aware of the direct
consequences of the plea. Ducker v. State, 45 S.W.3d 791, 795 (Tex. App.—Dallas 2001, no
pet.). Once this prima facie showing of voluntariness is made, the burden shifts to the defendant
to show that he entered the plea without knowing its consequences and was harmed as a result.
McGill v. State, 200 S.W.3d 325, 333 (Tex. App.—Dallas 2006, no pet.). “A defendant’s sworn
representation that his guilty plea is voluntary ‘constitute[s] a formidable barrier in any
subsequent collateral proceedings.’” Id. (quoting Blackledge v. Allison, 431 U.S. 63, 73–74
(1977)). We determine the voluntariness of a guilty plea from the totality of the circumstances
viewed in light of the entire record. Ducker, 45 S.W.3d at 796.
BACKGROUND
Underlying Offense—Assault of Public Servant
The following facts are taken from the record as viewed in the light most favorable to the
trial court’s ruling. One evening in May 2009, appellant and some friends and cousins were at a
–3– dance hall in Princeton, Texas, along with two or three hundred other people. Appellant’s friend,
Gustavo, was talking to a girl. A man walked up to Gustavo and began arguing with Gustavo.
Appellant intervened, and he and the man began pushing and shoving each other. Princeton
police officer Doyle Flatt, who was serving as security at the dance hall, saw appellant and the
other man arguing and went over to break it up. Flatt escorted the unidentified man, who Flatt
said was the more aggressive of the two, and a civilian security guard escorted appellant toward
the exit.
The man Flatt was escorting had calmed down when Flatt noticed that appellant was
pushing and shoving the security guard and others who were trying to assist the guard. Flatt left
the man he was escorting and approached appellant. He saw appellant shove the disc jockey and
others. Flatt “placed both of [appellant’s] arms behind his back and began to turn him away from
the crowd.” Appellant resisted and tried to pull his arms away. As Flatt turned, he tripped over
someone’s foot and let go of appellant. Flatt fell and appellant fell on top of him. Flatt did not
know if appellant intentionally fell on him. Appellant drew his arm back as if to strike Flatt.
Flatt grabbed the back of appellant’s neck and pulled him down, and appellant began to push or
strike Flatt in the sides. Flatt struck appellant on the left side of his face and head with a closed
fist several times to distract him long enough for Flatt to get up. He also called dispatch for
backup.
Eventually appellant began to get up, and Flatt also began to stand up. As Flatt was
checking to be sure his duty belt was intact, appellant struck Flatt on both sides of his head with
a closed fist. Flatt lifted his head and appellant struck him in the face. Flatt struck appellant in the
neck and began to take him down when another security guard grabbed appellant by the neck and
pulled him to the floor. Appellant struggled for several seconds, but Flatt was able to secure him.
Flatt placed appellant in custody. Appellant told Flatt that “he did not know [Flatt] was an officer
–4– but [Flatt] hit him first.” After appellant was secured in the police car, Flatt went back inside to
find the other individuals involved. He could not find them and was unable to get a good
description of anyone else involved.
The evidence showed that on the night of the incident Flatt was wearing a black polo-
type shirt, black tactical pants, and black boots. The shirt had “D. Flatt” and “Police” on the front
right side and a police badge on the front left side, all sewn onto the shirt in a silver reflective
material. The back of the shirt contained the word “POLICE” in about three- to four-inch
reflective letters. Flatt also wore a bullet-proof vest and a duty belt with handcuffs, a gun, two
spare magazines, a baton, a can of mace, and a radio.
Plea Proceeding
The State charged appellant with assault of a public servant. Appellant hired Jose Stewart
to represent him. Their meetings were conducted entirely in Spanish. The State initially offered
appellant four years’ community supervision in exchange for a guilty plea. Stewart
recommended that appellant reject the offer, and he did. The State then offered five years’
deferred adjudication in exchange for a guilty plea. Stewart recommended that appellant accept
that offer, and he did.
At the plea hearing, Stewart translated the proceedings for appellant. Appellant waived
his right to a jury trial and to confront his accusers. He said he had a full and complete
opportunity to discuss the case with his lawyer and he was fully satisfied with the lawyer’s
representation. He said he understood the charges and wanted to plead guilty. He said he was not
promised anything to plead guilty, no one forced him to plead guilty, and he was pleading guilty
freely and voluntarily. He stated he was not a citizen of the United States and that he understood
that by entering a guilty plea he could be deported, lose his ability to become a naturalized
citizen, and denied reentry into the country. Appellant testified that he understood the plea
–5– agreement and that he was giving up his right to appeal unless the court gave him permission to
appeal.
The court gave appellant a copy of the “Trial Court’s Certification” regarding appellant’s
right to appeal; it stated appellant “has NO right of appeal” because the case is a plea-bargain
case and that appellant “has waived the right of appeal.” The court accepted the plea and found
that it was made freely and voluntarily.
The State offered into evidence appellant’s signed judicial confession, the plea
agreement, and the “Trial Court’s Certification.” Appellant did not object. Appellant waived his
right to remain silent, and the State called appellant as a witness. The State asked appellant if he
“committed the acts exactly as alleged in the indictment in the case” and appellant said “yes.”
DISCUSSION
Appellant raises five issues on appeal. In issues one, two, and four, he argues his plea was
involuntary as a result of ineffective assistance of counsel. In issue three, he argues the judgment
and sentence are invalid and his plea was involuntary as a result of the trial court’s failure to
swear Stewart as the interpreter during the plea proceedings. And in issue five, he argues his plea
was involuntary because of all the errors raised in the prior four issues.
Ineffective Assistance of Counsel
To prove a guilty plea was involuntary because of counsel’s ineffective assistance, an
appellant must show by a preponderance of the evidence that (1) counsel’s plea advice did not
fall within the wide range of competence demanded of attorneys in criminal cases, and (2) there
is a reasonable probability that, but for counsel’s deficient performance, appellant would not
have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010); Ex parte Amezquita,
223 S.W.3d 363, 366 (Tex. Crim. App. 2006). We indulge a strong presumption that counsel’s
–6– conduct fell within the wide range of reasonable professional assistance. See Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002). And when the trial court’s implied findings are
supported by the record, we should accept them. See Ex parte Amezquita, 223 S.W.3d at 367.
Failure to Investigate and Advise about Defenses
In issue one, appellant contends that he had “a great chance of acquittal” because he was
acting in self-defense and he did not know Flatt was an officer. He argues that Stewart did not
investigate the case, interview eyewitnesses, or properly advise appellant about the elements of
the offense before he pleaded guilty. He argues that if he had been advised properly, he would
not have pleaded guilty.
To support his claim, appellant testified at the habeas hearing that he told Stewart
“everything, how it all happened.” He said he told Stewart about his friend trying to talk with
the girl and a fight breaking out, about his interaction with the officer, how he did not know Flatt
was an officer until Flatt was taking him out in handcuffs, that his girlfriend had witnessed
everything, and that two of his cousins and two friends were also at the dance hall. Appellant
said Stewart did not explain anything about the law or the facts, and they never talked about what
happened after the first meeting. He said Stewart never talked to him about the police report, and
appellant never saw a copy of the police report.
Appellant agreed that he signed the plea papers which contained the waiver of his rights,
but he said Stewart did not explain the documents to him. When asked how he ended up signing
the documents, appellant said Stewart “would tell me, but he wouldn’t tell me everything that the
document said.” Appellant was asked what Stewart told him about the documents, and appellant
said, “Honestly, I don’t remember.”
The State pointed out to appellant on cross-examination that he had started to answer
some of the questions posed by his lawyer before the translator started speaking, and appellant
–7– said he speaks English “[a]bout 50 percent [sic].” He said when he apologized to Flatt at the
dance hall because he did not know Flatt was an officer, he spoke to Flatt in English.
Berta, appellant’s sister, testified that she was with appellant each time he met with
Stewart. She confirmed appellant’s testimony about those meetings.
Pursuant to the trial court’s order, Stewart filed an affidavit in response to appellant’s
application for a writ of habeas corpus. In the affidavit, Stewart stated that appellant was unable
to give him any details about the dance hall incident, appellant said he had been drinking and
was unaware of what caused the “brawl,” he was not aware a police officer was on the premises,
and “he was simply a victim defending himself against violent assaults.” Stewart said he asked
appellant if “he knew anyone who could shed some light on the incident” and appellant said “he
did not want to get anyone directly involved since it could cause additional immigration
difficulties to the people he knew.” Stewart testified that he explained how important it was to
have an alternative theory of the case through other witnesses, and appellant “said that he only
knew the individuals by sight and would not be able to contact them.”
Stewart also stated in his affidavit that he explained to appellant the charges and his
rights to a jury trial and to appeal. He said he advised appellant that accepting probation in this
case would have “definite immigration consequences” because it “would be considered an
aggravated felony for which he could be subject to deportation.” Stewart said he read the police
report and realized that the officer’s version of what happened differed from what appellant had
told him. Stewart said he translated the police report for appellant and asked him to explain why
his recollection of the events was different from the report. Appellant said “his memory of the
event was vague due to the time that had elapsed.” Appellant said “he did not recall hitting the
officer, but that if he did it was in self-defense.” Appellant also told Stewart that he “did not
recall seeing the police officer’s uniform or even struggling with him” and said “he had several
–8– drinks of alcohol that evening and did not remember how or why the melee began.” Stewart told
appellant that “his version of the incident was not as credible as the officer’s and appellant’s
chances of success at trial could be adversely affected without an independent witness to the
event.” Stewart said he also told appellant that if he decided to have a jury trial, Stewart “could
not assure him that probation would be a guarantee.” Stewart said appellant asked him to
negotiate a plea bargain, and that is what Stewart did.
The defense called Stewart as a witness at the habeas hearing, and his testimony about his
meetings with appellant essentially repeated the statements in his affidavit. Stewart said that
because appellant was uncooperative by refusing to identify the witnesses, he “was swimming in
the dark.” Stewart said appellant “made it clear that he wanted an offer. He wanted to work the
case out” so Stewart asked the State for a plea bargain offer. Stewart explained that without
appellant’s cooperation, he had “no view into the facts in a way that I can make – I can try a
case.” Stewart said appellant said “he didn’t want an investigation. He didn’t want me to pursue
it any further. He wanted me to work out a deal and that is what he wanted.” Stewart said
“[t]here was ample information out there for me to at least come to some sort of conclusion
[about the case], and [appellant] provided information that led me to believe that maybe he
wasn’t telling the truth or there was a reason why he didn’t want to tell me the truth.” Stewart
said the case was “[o]n its face . . . an assault of an officer and you have to know it’s an officer.
You have to know he’s an officer to physically cause him injury . . . . And the officer’s affidavit
set out what happened, and [appellant] was not able to respond to that in an effective way.”
When appellant testified at the hearing, he denied that he was drinking at the dance hall
that night, denied that he told Stewart he did not want to contact the witnesses, and denied telling
Stewart that the witnesses might have problems with immigration. Appellant agreed, however,
that he never provided the witnesses’ names to Stewart.
–9– The law requires an attorney to conduct a reasonable investigation or to make reasonable
decisions that make particular investigations unnecessary. Ex parte Martinez, 195 S.W.3d 713,
721 (Tex. Crim. App. 2006). But when a defendant instructs his attorney not to interview certain
witnesses, the defendant may not later claim his attorney’s investigation was ineffective. See
Schriro v. Landrigan, 550 U.S. 465, 475–76 (2007); Strickland v. Washington, 466 U.S. 668, 691
(1984); Roberts v. Dretke, 356 F.3d 632, 638 (5th Cir. 2004).
Whether appellant instructed Stewart not to contact the witnesses was disputed, and the
trial court, as factfinder, resolved the conflict against appellant. Appellant’s testimony that he did
not give Stewart the names of the witnesses supports the trial court’s implied finding that
appellant instructed Stewart not to contact the witnesses. The record also supports Stewart’s
testimony that appellant wanted him to negotiate a plea bargain. A trial court does not abuse its
discretion when it bases its decision on conflicting evidence and there is some evidence to
support the decision. See J.R.W. v. State, 879 S.W.2d 254, 257 (Tex. App.—Dallas 1994, no
writ).
Additionally, appellant presented the testimony of his girlfriend, friends, and cousins who
were at the dance hall that night. All but one testified that they did not know Flatt was an officer
because it was too dark to see his uniform. One witness, who was about fifteen feet away when
the incident occurred, testified he knew immediately that Flatt was an officer because of his
black shirt. Appellant’s girlfriend said she was about three feet away when the incident with Flatt
occurred, but it was too dark for her to see Flatt’s police badge or his duty belt. Although the
testimony of most of appellant’s witnesses generally supported appellant’s testimony that he did
not know Flatt was an officer, their testimony did not support his claim of self-defense.
Appellant’s girlfriend testified that appellant resisted Flatt’s grip at first, but she did not see
appellant strike the officer at all, and all the other witnesses testified that they did not see
–10– anything that happened after Flatt and appellant fell to the floor, which, of course, is when the
assault occurred.
The factfinder resolved the conflicting evidence against appellant. We conclude that
appellant has not shown the trial court abused its discretion by denying habeas relief on this
basis. We resolve issue one against appellant.
Immigration Consequences
In issue two, appellant argues that his trial counsel was ineffective under Padilla because
counsel did not advise him that he would be deported if he pleaded guilty. Padilla does not apply
here. Ex parte Olvera, 2013 WL 1149926, at *1; see Ex parte De Los Reyes, 392 S.W.3d at 679.
And prior to Padilla, admonitions about deportation consequences of a guilty plea were
considered collateral matters that would not support a claim of ineffective assistance of counsel.
Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Consequently, we conclude that
appellant has not shown his counsel was ineffective for failing to advise him of the immigration
consequences of a guilty plea. We resolve issue two against appellant.
Right to Appeal
In issue four, appellant argues that Stewart’s performance was deficient because he did
not advise appellant about his right to appeal. Appellant argues that if Stewart had advised him
properly about his right to appeal, he would have appealed the judgment on the grounds that his
counsel was ineffective and the interpreter was not sworn. But a direct appeal is usually
inadequate for raising an ineffective-assistance claim because the record generally is not fully
developed. Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012) (record must
show counsel’s deficient performance and harm); Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Appellant did not object to the trial court’s alleged failure to swear Stewart as
the interpreter, and appellant has not shown how he otherwise preserved that issue for a direct
–11– appeal. See TEX. R. APP. P. 33.1. Additionally, appellant does not argue that he would have
changed his guilty plea if he had been advised about his right to appeal. Consequently, we review
this issue under the law that applies to the appeal right of a person who entered a guilty plea.
Rule 25.2 of the Texas Rules of Appellate Procedure governs an appeal from a negotiated
plea bargain where the punishment assessed does not exceed the punishment recommended by
the prosecutor and agreed to by the defendant. In such a case, which this is, a defendant may
appeal only those matters that were raised by written motion filed and ruled on before trial or
only after getting the trial court’s permission to appeal. TEX. R. APP. P. 25.2. Appellant did not
raise any pretrial issues and the trial court certified that appellant did not have a right to a direct
appeal. Id.; see TEX. CRIM. PROC. CODE ANN. art. 44.02 (West 2006).
The record shows that appellant signed plea papers stating he waived his right to appeal
and certifying he had no right to appeal by pleading guilty. And the trial court admonished
appellant during the plea proceeding that he was waiving his right to appeal by pleading guilty.
The trial court gave appellant a copy of the “Trial Court’s Certification” during the proceeding.
On the record presented, we conclude that appellant has not shown counsel was ineffective in
advising him about his right to appeal. As a result, we conclude that the trial court did not abuse
its discretion by denying habeas relief on this basis. We resolve issue four against appellant.
Sworn Interpreter
In issue three, appellant contends that his guilty plea was involuntary and the “conviction
should be overturned as illegally obtained” because the trial court did not provide a sworn,
independent, competent interpreter for the plea proceeding. Appellant relies on article 38.30(a)
of the code of criminal procedure to support his argument. He also argues that “[p]roviding an
interpreter to an accused who does not understand English is required by the Confrontation
Clause and by Article I, section 10 of the Texas Constitution.”
–12– Article 38.30(a) states that an interpreter “must be sworn to interpret for the person
charged” on motion of a party in a criminal proceeding or on the court’s own motion. TEX. CODE
CRIM. PROC. ANN. art. 38.30(a) (West Supp. 2011). If the court does not comply with article
38.30, we review the error for harm. See Leal v. State, 782 S.W.2d 844, 850 (Tex. Crim. App.
1989). To show harm, an appellant must present a specific example of actual injury. Frescas v.
State, 636 S.W.2d 516, 518 (Tex. App.—El Paso 1982, no pet.); see Linton v. State, 275 S.W.3d
493, 509 (Tex. Crim. App. 2009).
Appellant testified that when he went before the trial court to enter the guilty plea,
Stewart did not ask if it was okay for him to interpret the hearing for appellant, and appellant did
not know he had the right to a sworn interpreter. Appellant contends that Stewart did not
translate the trial court’s admonitions properly into Spanish and that Stewart only said, “Say yes,
say no.” And he contends that as a result of Stewart’s inaccurate translation, he was not aware of
the rights he was giving up by pleading guilty, rendering his plea involuntary.
Stewart testified that Spanish is his native language and that he is certified by the State as
a Spanish translator. He testified that he accurately translated the proceedings for appellant
pursuant to the oath he took when he was certified. Stewart also stated in his affidavit that
appellant agreed to allow Stewart to translate the plea proceedings instead of getting an
independent interpreter.
The record does not contain a motion filed pursuant to article 38.30, and the record shows
that appellant was not denied an interpreter. Stewart testified that he translated the proceeding
accurately. Additionally, the trial court’s oral admonitions that appellant contends were not
translated correctly were also contained in the plea papers, which appellant admitted he signed.
The record supports the trial court’s implied finding that Stewart accurately translated the
proceedings and that appellant’s plea was not rendered involuntary by the failure to swear the
–13– interpreter. See Briones v. State, 595 S.W.2d 546, 547–48 (Tex. Crim. App. 1980).
Consequently, appellant has not shown the trial court abused its discretion by denying habeas
relief on this basis. We resolve issue three against appellant.
Involuntary Plea – Generally
In issue five, appellant generally argues that his plea was rendered involuntary because of
the ineffective assistance of counsel and the failure to swear the interpreter. Having resolved
those issues against appellant, this issue presents nothing new for our review. We resolve issue
five against appellant.
CONCLUSION
We affirm the trial court’s order.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.7(a)
111349F.U05
–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EX PARTE ALFREDO OLVERA On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-11-01349-CR Trial Court Cause No. W-199-81492-09. Opinion delivered by Justice Lang-Miers, Justices Francis and Evans participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s order denying Alfredo Olvera’s application for a writ of habeas corpus.
Judgment entered this 12th day of August, 2013.
–15–