PD-0620-15 COURT OF CRIMINAL APPEALS PD-0620-15 AUSTIN, TEXAS Transmitted 5/22/2015 4:47:17 PM Accepted 5/26/2015 10:24:27 AM ABEL ACOSTA NO. PD-_____-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ____________________________
ALEJANDRO CHAVEZ RAMIREZ Appellant/Petitioner vs. THE STATE OF TEXAS, Appellee/Respondent _________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ________________________________
Cause No. 10-14-00247-CR Court of Appeals, Tenth District At Waco, Texas ___________________________________
Lawrence B. Mitchell SBN 14217500 P.O. Box 797632 Dallas, Texas 75379 Tel. No. 214.870.3440 E-mail: judge.mitchell@gmail.com
Attorney for Petitioner/Appellant
May 26, 2015 IDENTITY OF JUDGE, PARTIES, AND COUNSEL
PRESIDING JUDGE: John E. Neill, Judge 18th District Court Johnson/Somervell County, Texas
PARTIES: Alejandro Chavez Ramirez, Appellant/Petitioner
The State of Texas, Appellee/Respondent
Counsel: Trial counsel: Kent Poynor, 2501 Oak Lawn Ave., Suite 350, Dallas, Texas 75219
Appeal counsel: Kent Poynor
Petition for Discretionary Review Counsel: Lawrence B. Mitchell, P.O. Box 797632, Dallas, Texas 75379
Trial counsel for the State: Assistant District Attorney Trey Brown, 204 S. Buffalo, Suite 209, Cleburne, Texas, 76033
Appellate counsel for the State: Trey Brown
Trial, Appellate and Petition counsel for the State: Dale S. Hanna, District Attorney or his designated representative at 204 W. Buffalo, Suite 209, Cleburne, Texas
i TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel......................................................................i
Table of Contents ......................................................................................................ii
Index of Authorities..................................................................................................iii
Statement Regarding Oral Argument........................................................................1
Statement of the Case.................................................................................................1
Statement of Procedural History ...............................................................................2
Ground for Review: ..................................................................................................2 I.
WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN RULING THAT APPELLANT’S APPLICATION FOR WRIT OF HABEAS CORPUS WAS FRIVOLOUS AND THAT HE WAS MANIFESTLY ENTITLED TO NO RELIEF
Argument...................................................................................................................3
Conclusion.................................................................................................................8
Prayer for Relief.........................................................................................................9
Certificate of Word-Count Compliance..................................................................10
Certificate of Service...............................................................................................10
Appendix ..................................................................................................................1.1
ii INDEX OF AUTHORITIES
Cases:
Ex parte Mello, 355 S.W.3d 827 (Tex. App. - Fort Worth 2011).............................7
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003)..................................6
Ex. parte Roberts, 409 S.W.3d 759 (Tex. App. - San Antonio 2013)......................6
Ex parte Zantos-Cuebas, 429 S.W. 3d 83 (Tex. App. Houston [1st Dist.] 2014).....7
Guzman v. State, 955 S.W. 2d 85 (Tex. Crim. App. 1997) ......................................7
Statutes:
TEX. CRIM. CODE CRIM. PROC. ANN. art. 11.072 §2 (b) (1)..............................1,3
TEX. CODE CRIM. PROC. ANN. art. 11.072 §6 (b)..................................................5
TEX. CRIM. PROC. CODE ANN. art. 11.072, § 7[a])...............................................7
Texas Rules of Appellate Procedure:
TEX. R. APP. P. 66.3 (b)..........................................................................................8
TEX. R. APP. P. 66.3 (c) .......................................................................................8
TEX. R. APP. P. 9.4 (i) (3)........................................................................................10
TEX. R. APP. P. 9.4 (i) (1)........................................................................................10
TEX. R. APP. P. 9.4 (i) (2) (D).................................................................................10
iii STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument because the issue presented can be resolved
by review of the Petition for Discretionary Review, any Response and, if the Petition
is granted, on the respective briefs of the parties.
STATEMENT OF THE CASE
In Cause No. 47308-A, appellant pled guilty to possession of a controlled
substance and was sentenced to two (2) years confinement in a state jail facility. The
sentence was suspended and he was placed under community supervision for five (5)
years. While under community supervision, appellant filed an Application for Writ
of Habeas Corpus pursuant to the provisions of TEX. CRIM. CODE CRIM. PROC.
ANN. art. 11.072 §2 (b) (1). In the Application appellant complained that his plea
was involuntary for several reasons and that he had been deprived of the effective
assistance of counsel since he was not properly admonished that he would be
deported because of the conviction. The district court denied the Application without
receiving evidence in any form, ruling that it was frivolous and that appellant was
manifestly not entitled to relief. Notice of appeal was timely given.
1 STATEMENT OF PROCEDURAL HISTORY
The appeal was presented to the Court of Appeals for the Tenth District of
Texas at Waco in Cause No. 10-14-00247-CR. The court issued its first
memorandum opinion affirming the trial court’s judgment on December 31, 2014.
Appellant’s Motion for Rehearing was filed on January 15, 2015. The first opinion
was withdrawn and a new memorandum opinion affirming the trial court’s judgment
was issued on April 23, 2015. See Appendix. Appellant’s Motion for Rehearing was
denied in Footnote 2 of that opinion on the same date. The Petition for Discretionary
Review is timely filed if filed on or before May 23, 2015.
GROUND FOR REVIEW
I.
WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN RULING THAT APPELLANT’S APPLICATION FOR WRIT OF HABEAS CORPUS WAS FRIVOLOUS AND THAT HE WAS MANIFESTLY ENTITLED TO NO RELIEF
2 ARGUMENT
After appellant was placed under community supervision, he filed an
application for writ of habeas corpus in the convicting court challenging the legal
validity of his conviction for which the community supervision had been imposed.
See TEX. CRIM. CODE CRIM. PROC. ANN. art. 11.072 §2 (b) (1). In the application
he complained that his conviction was involuntary thus depriving him of the Due
Process of Law and that he had been deprived of his constitutional right to the
effective assistance of counsel in that he was not properly advised of the immigration
consequences of being found guilty of the offense charged. [CR 41- 46]. The State
did not file a written response to the application. See appellant’s Motion for New
Trial. [CR - 52].
Based upon the foregoing, the district court initially set this matter for a
hearing on the merits of the complaints to commence on August 12, 2014. [CR - 47].
However, before that hearing was held, the district court issued a written order
denying the application. [CR - 48]. The district court ruled that the application was
frivolous and appellant was manifestly entitled to no relief. As the record
demonstrates, there was no evidence presented to the district court in any form before
the trial court ruled. The decision was based upon the court’s review of the
application and the court’s “...recollection of the case.”
3 In affirming the trial court’s decision, the court of appeals first acknowledged
that the application did present, facially, the two allegations of constitutional
violations as noted above. The court of appeals noted that no affidavits or other
evidence were included in or attached to the writ application. After recognizing that
the habeas statute allows the trial court, in some circumstances, to consider the merits
of the application without a hearing, which it clearly does, the reviewing court
criticized appellant for not providing authority in his application that a “hearing” was
required to allow him to present evidence. [Slip opinion at p. 4]. The court of appeals
upheld the judgment of the district court because appellant did not have the statutory
right to an evidentiary hearing and therefore the trial court did not abuse its discretion
in denying relief.
What is not resolved in the opinion is the question of whether the trial court can
deny a writ application without receiving any evidence at all. Appellant argues
herein that, unless the writ application fails on its face to present at least one
justiciable issue, the trial court cannot deny the application as frivolous without
receiving evidence in some statutorily authorized manner.
The habeas statute authorizes the trial court, in its discretion, to determine how
the evidentiary basis for the application for writ of habeas corpus can be provided;
it does not provide that the trial court can resolve the justiciable issues presented in
4 the application without any evidence at all. The habeas statute provides that the trial
court may make its determination to grant or deny the writ after ordering
“...affidavits, depositions, interrogatories, or conduct a hearing.” TEX. CODE CRIM.
PROC. ANN. art. 11.072 §6 (b). In addition to these methods of developing the
evidence, the trial court may also rely on the court’s personal recollection. It is
appellant’s argument that the habeas statute gives the trial court discretion on “HOW”
it may receive evidence not “IF” it will receive evidence if the face of the of the
application alleges justiciable issues. The trial court can deny the application without
receiving evidence in any form only if, after reviewing the face of the application and
any documents attached to the application, the trial court determines that the applicant
is entitled to no relief.
In deciding this appeal, the court of appeals quite properly noted that
appellant’s sole issue on appeal was “...that the trial court erred in summarily denying
(his) writ petition as frivolous.” Slip opinion at p. 2. However, because the majority
of appellant’s argument was based upon the failure of the trial court to conduct an
evidentiary hearing, the court of appeals chose to resolve only the issue as to whether
the trial court had abused its discretion by not conducting an evidentiary hearing. The
court of appeals should have resolved the issue actually raised: did the district court
err in determining from the face of the writ application that the writ was frivolous and
5 that appellant was not entitled to relief. If the court of appeals had attempted to
resolve the issue presented, it would have done so under a different standard of
review.
In the instant cause, appellant complained that the trial court entered a written
order denying the writ application as frivolous which did not include written findings
of fact or conclusions of law. The court of appeals should have begun its analysis of
the issue presented by considering whether the trial court erred in determining “from
the face of the application” that appellant was “manifestly entitled to no relief” so
that his application should be declared “frivolous.” The court of appeals should have
reviewed de novo the trial court’s determination that appellant’s application was
frivolous. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003); Ex. parte
Roberts, 409 S.W.3d 759, 762 (Tex. App. - San Antonio 2013).
A decision of the trial court to summarily deny the applicant’s writ application
without an evidentiary base and only upon the review of the application and personal
recollection is not an evaluation of credibility issues. Rather, it is only a legal issue:
did the application, on its face, raise issues that could lead to the granting of relief.
The resolution of this issue turns only upon the application of legal standards. The
trial court under such circumstance is not in any appreciably better position than the
court of appeals to make that determination so that de novo review, not abuse of
6 discretion review, is appropriate. See Guzman v. State, 955 S.W. 2d 85, 89 (Tex.
Crim. App. 1997); Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App. - Fort Worth
2011).
In Ex parte Zantos-Cuebas, 429 S.W. 3d 83, 88-89 (Tex. App. Houston [1st
Dist.] 2014) the appellant was a non-English speaking defendant (as was appellant
herein, although, unlike in Zantos-Cuebas, an interpreter was present). He raised, as
did appellant herein, in his writ application that he was not properly admonished as
to the deportation consequences of his guilty plea and conviction. He complained in
his writ and supporting documents that he did not understand the consequences
because of improper, informal translation. Appellant’s writ referenced portions of the
trial record showing that he was improperly advised about deportation consequences.
In both cases the writ was denied as being frivolous.
The Zantos-Cuebas court properly determined, under de novo review, that
“...the face of the writ application and affidavits [did] not indicate that
Zantos–Cuebas was ‘manifestly entitled to no relief.’ Accordingly, it was error for the
trial judge to find that the application was frivolous.” (citing to TEX. CRIM. PROC.
CODE ANN. art. 11.072, § 7[a]). Ex parte Zantos-Cuebas, 429 S.W.3d at 90 -91.The
case was remanded to the trial court for further development of the factual record.
In the instant cause, the writ application alleged, facially, that appellant’s plea
7 was involuntary and that he was improperly admonished as to the deportation
consequences of his plea. The application referenced several portions of the trial
record which he believed established that he had not been properly admonished. The
district court erred in ruling that from the review of the application and its own
personal recollection that this writ application was “frivolous.”
The court of appeals erred in using an inapplicable standard of review in
determining that the trial court had not abused its discretion in finding the application
“frivolous.” Under proper de novo standards, the court of appeals should have ruled
that the writ application was not frivolous from a review of the face of the document
and reversed and remanded the case to the trial court for further review and for the
entry of findings of facts and conclusions of law.
CONCLUSION
The court of appeals has decided an important question of state law that
conflicts with the applicable decisions of the Court of Criminal Appeals and the
decisions of other court of appeals on the same issue. See TEX. R. APP. PROC. 66.3
(a) and (c). More specifically, the court of appeals as adopted a standard of review,
“the abuse of discretion rule,” whereas the Court of Criminal Appeals and the courts
of appeals have held that a de novo review should be conducted on a habeas issue that
is only a question of law. An appropriate reason for this Honorable Court to grant this
8 Petition for Discretionary Review has been presented.
PRAYER FOR RELIEF
WHEREFORE FOR THE FOREGOING REASONS, Appellant prays that
the Petition for Discretionary Review be granted and that further briefing by the
parties should be ordered. Thereafter, the case should be reversed and remanded to
the court of appeals for review of the issue presented under the proper standard of
appellate review.
Respectfully submitted,
/s/Lawrence B. Mitchell
Lawrence B. Mitchell SBN 14217500 P.O. Box 797632 Dallas, Texas 75379 214.870.3440 judge.mitchell@gmail.com
Counsel for Petitioner/Appellant
9 CERTIFICATE OF WORD-COUNT COMPLIANCE
I hereby certify, in compliance with Rule 9.4 (i) (3) of the Texas Rules of
Appellate Procedure, that this document contains 1,781 words, including all contents
except for the sections of the Petition to be excluded by Rule 9.4 (i) (1) of the Texas
Rules of Appellate Procedure, and in compliance with Rule 9.4 (i) (2)(D) of the Texas
Rules of Appellate Procedure.
/s/ Lawrence B. Mitchell
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Petition for Discretionary
Review is being served of this the 22nd day of May, 2015 via the service function in
eFile Texas, on the attorneys for the State: (1) Trey Brown, Assistant District
Attorney, Johnson County County, Texas to Trey@johnsoncountytx.org and (2) the
State Prosecuting Attorney at information@spa.texas.gov.
10 APPENDIX
Court of Appeals of Texas, Waco. Ex parte Alejandro Chavez Ramirez
No. 10–14–00247–CR Opinion delivered and filed April 23, 2015
From the 18th District Court Johnson County, Texas Trial Court No. 47308–A
MEMORANDUM OPINION1
Alejandro Chavez–Ramirez pled guilty to possession of a controlled substance
and was sentenced to two years in a state jail facility. See Tex. Health & Safety Code
Ann. § 481.115(b) (West 2010). His sentence was suspended and Ramirez was placed
on community supervision for 5 years. Ramirez was later detained by the Federal
Department of Immigration and Customs Enforcement, and filed an application for
writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal
Procedure. Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005). After initially setting
the application for a hearing, the trial court reviewed the application, determined
1 We withdraw our memorandum opinion and judgment dated December 31, 2014 and replace it with this memorandum opinion and judgment dated April 23, 2015.
1.1 Ramirez to be entitled to no relief, and denied Ramirez's application as frivolous.
Because the trial court did not abuse its discretion in denying the application without
a hearing, the trial court's judgment is affirmed.
Ramirez's sole issue is that the trial court erred in summarily denying Ramirez's
writ petition as frivolous. In the body of his argument, however, he complains about,
and supports his argument with case-law regarding, the trial court's decision to
determine the writ application without a hearing.
We review a trial court's decision to grant or deny an evidentiary hearing on an
article 11.072 habeas corpus application under an abuse of discretion standard. See
Ex parte Gonzalez, 323 S.W.3d 557, 558 (Tex. App.–Waco 2010, pet. ref'd); Ex parte
Cummins, 169 S.W.3d 752, 757 (Tex. App.–Fort Worth 2005, no pet.). See also Ex
parte Godinez, No. 10–13–00063–CR, 2014 Tex. App. LEXIS 256, 2–3 (Tex.
App.–Waco Jan. 9, 2014, pet. ref'd) (not designated for publication). Nothing in
article 11.072 requires the trial court to conduct a hearing before rendering its
decision on the habeas-corpus relief sought. See Tex. Code Crim. Proc. Ann. art.
11.072, § 6(b) (West 2005) (“In making its determination, the court may order
affidavits, depositions, interrogatories[,] or a hearing, and may rely on the court's
personal recollection.” (Emphasis added)); Ex parte Gonzalez, 323 S.W.3d at 558.
In his Application for Writ of Habeas Corpus, Ramirez raised two complaints:
1.2 1) that his plea was involuntary because he did not understand (a) his right to plead
not guilty and have a jury trial; (b) there were possible defenses; and (c) there were
possible “serious consequences;” and 2) that counsel provided ineffective assistance
by failing to properly admonish Ramirez that his plea would “certainly or almost
certainly result in deportation.” The writ application was not sworn to, as required by
the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. Art. 11.14
(West 2005).
If an applicant fails to follow the proper procedures outlined in Chapter 11 of
the Code of Criminal Procedure, he risks failing to invoke the trial court's habeas
corpus jurisdiction. State v. Guerrero, 400 S.W.3d 576, 584 (Tex. Crim. App. 2013)
(citing Jordan v. State, 54 S.W.3d 783, 787 (Tex. Crim. App. 2001) (“if a probationer
wishes to invoke the trial court's writ of habeas corpus jurisdiction, he must follow
the proper procedures outlined in Article 11....”). In this instance, the application was
not so informal so as to fail to invoke the trial court's jurisdiction. See Jordan, 54
S.W.3d at 786. (“functional” writ analysis adopted by prior cases reversed). In this
instance, it is evident that the parties and the trial court recognized the filing as an
11.072 writ, notwithstanding the failure to comply with the statute.2
2 Ramirez asks this Court in his motion for rehearing to dismiss the underlying proceeding for lack of jurisdiction, pursuant to Jordan, without prejudice to refiling his petition for writ of habeas corpus. Ramirez's motion for rehearing is denied.
1.3 The trial court considered the merits of the application without a hearing as the
statute clearly provides the trial court the authority to do. See Ex parte Gonzalez, 323
S.W.3d 557, 558 (Tex. App.–Waco 2010, pet. ref'd). It is the habeas applicant's
obligation to provide a sufficient record that supports his factual allegations with
proof by a preponderance of the evidence. Ex parte Chandler, 182 S.W.3d 350, 353
n. 2 (Tex. Crim. App. 2005). No affidavits or other evidence was included in or
attached to the writ application. Moreover, the writ application provided no statutory
or case authority that suggested a hearing was required to allow the applicant to
provide evidence to show he was entitled to relief. Thus, we cannot say, based on this
record, that the trial court abused its discretion in ruling on Ramirez's application
without a hearing.
Accordingly, Ramirez's sole issue is overruled, and the trial court's judgment
is affirmed.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis and Justice Scoggins
1.4 1.5