Ex Parte: Francisco Carbajal--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 

)

) No. 08-03-00297-CR

EX PARTE: FRANCISCO CARBAJAL )

)Appeal from

)

) 161st District Court

)

) of Ector County, Texas

)

) (TC# B-27,930)

 

MEMORANDUM OPINION

 

Francisco Carbajal appeals his conviction for possession of cocaine. Appellant pled guilty and was sentenced to eight years in TDCJ, probated pursuant to a plea agreement. Appellant then unsuccessfully pursued a petition for writ of habeas corpus. We affirm.

PROCEDURAL SUMMARY

 

Appellant filed his petition for writ of habeas corpus pursuant to Texas Code of Criminal Procedure Articles 11.01, 11.05, and 11.08; Texas Constitution Article 5, section 8; and U.S. Constitution amendment XIV, section 5. He argued that his trial counsel rendered ineffective assistance of counsel by advising him to plead guilty when the evidence was legally insufficient to prove that he knowingly and intentionally possessed cocaine. Second, Appellant contended that trial counsel was ineffective by failing to apprise him of the applicable law, by recommending that he plead guilty to an offense the State could not prove, and that as a result, his guilty plea was unknowing, unintentional, and involuntary. Finally, Appellant alleged that his trial counsel rendered ineffective assistance of counsel by advising him to plead guilty without first moving to suppress evidence acquired in an unreasonable search and seizure.

The trial court requested testimony in the form of affidavits. Appellant s affidavit included the following assertions. After being arrested in November 1999, he went to a law office and talked to an individual whom he believed was an attorney. He told the individual how he was arrested and that he was innocent of the charge. The individual asked him questions and told him to come back later; when he returned he was introduced to Brian Chavez, who was his attorney. He met with Chavez four or five times before his plea in May 2000 and attended court three times. His meetings with Chavez were brief, and Chavez did not discuss the facts of the case with him. Chavez indicated that he did not want to hear Appellant s side of the story. Appellant believed that the individual he had originally spoken with had told Chavez about his case so he made no further attempts to tell Chavez what happened. After pretrial, Chavez told him he needed to plead guilty because the prosecutor had agreed to probation and that otherwise the judge would find him guilty and send him to prison. Chavez never explained what evidence the State had, Appellant did not know that Chavez had a duty to explain the facts of his case and available defenses, and he was unaware that Chavez could not reach a plea agreement without his approval. If Chavez had properly advised him, Appellant would have sought a trial since the State could not affirmatively link him to the cocaine. Consequently, his plea was involuntary and unknowing. Appellant claimed that Chavez never reviewed the State s file or if he did, then it was only a brief examination. Appellant has only an eighth-grade education from Mexico and is unfamiliar with the American justice system; he is unable to speak or read English at a proficient level. Appellant maintained that he was innocent of the charge and that Chavez should have attempted to exclude the evidence seized in his illegal arrest. Appellant believed that his presence at the residence sufficed to prove his guilt and he never would have subjected himself to deportation if he knew he had a chance of winning because he has three children who are United States citizens.

Chavez s affidavit countered in the following particulars. Pursuant to his representation of Appellant, it was made clear that the individual Appellant originally spoke with was not an attorney. After being retained, Chavez had many conversations with the prosecutor regarding Appellant s defense and a possible plea bargain and related versions of the facts were discussed. Appellant s defense was also discussed with Officer Jesse Duarte. The prosecutor was intent on giving Appellant prison time but after debate, agreed to probation and dismissal of the cocaine charge, conditioned upon the withdrawal of all pretrial motions. This condition was discussed with Appellant. Plea negotiations and Appellant s version of the facts were discussed in Chavez s meetings with Appellant. Chavez realized that standing and consent were issues in defending a motion to suppress and that the suppression motion and motion to reveal the confidential informant would probably be overruled. Moreover, if the case went to trial, Chavez knew there would be testimony elicited that Appellant was the target of the police investigation due to tips from two or three confidential informants. Chavez reviewed the police reports and believed there was substantial evidence to convict Appellant. Appellant was charged with possession of cocaine and heroin in two separate indictments such that separate trials were possible, meaning that if Appellant were found guilty on one charge, then he would be ineligible for probation on the second charge. Chavez discussed Appellant s immigration status with Appellant and informed him about the consequences of his plea. He also discussed Appellant s options of going to trial. Appellant was given the option of going to trial or pleading guilty, and he chose to plead guilty. Chavez did offer his recommendation concerning the unlikelihood of success at trial. Chavez believed that the plea was knowing and voluntary; and he believed that eight years probation was a good offer considering the circumstances of the case, his knowledge of the case, and the possible range of punishment on two second-degree felonies.

The trial court specifically found that:

" Chavez conducted a pretrial investigation of the facts of Appellant s case and that he fully discussed those facts with Appellant,

" the decision to agree to a plea rather than pursue the motions to suppress and to reveal the confidential informant s identity were decisions made by Chavez based upon the likelihood of success of the motions and the benefit of a plea agreement;

" Chavez did not force Appellant to accept the plea agreement, but Appellant made the decision after considering all relevant factors;

"Appellant was fully admonished, and his plea was found to be knowing and voluntary.

 

The trial court denied Appellant s petition after reviewing the facts of the case and Chavez s response to the Appellant s application. Appellant then filed a motion for the court to reconsider his petition or to alternatively grant a motion for new trial.

JURISDICTION

We begin with the premise that no appeal can be had from a refusal to issue or grant a writ of habeas corpus. Ex parte Hargett, 819 S.W.2d 866 (Tex.Crim.App. 1991). The crucial question in this regard is whether the trial court considered and resolved the merits of the writ application. Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex.App.--Austin 2000, pet. ref d). Thus, if the trial court rules on the merits of the applicant s claim but denies the requested relief, that is appealable; conversely, if the trial court dismisses the writ application for some other reasons, such as lack of jurisdiction, without reaching the merits, that order is not appealable. Hargett, 819 S.W.2d at 868-69.

The trial court requested affidavits and reviewed Appellant s petition along with trial counsel s affidavit and the facts of the case. Further, the trial court decided in its findings that trial counsel was not ineffective and that Appellant s plea was knowingly and voluntarily made. Thus, we believe that the trial court considered the merits of Appellant s petition. See Gonzales, 12 S.W.3d at 914.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant complains in Point of Error One that the trial court erred in failing to grant relief on his writ of habeas corpus because trial counsel s affidavit conceded that he failed to inform and discuss the facts, applicable law, and defenses of Appellant s case with him.

Standard of Review

Appellant urges that we apply a de novo standard of review since the trial court based its findings on affidavits rather than testimony. The State responds that the abuse of discretion standard is applicable. We generally review a trial court s decision to grant or deny relief on a writ of habeas corpus under an abuse of discretion standard. See Ex parte Mann, 34 S.W.3d 716, 718 (Tex.App.--Fort Worth 2000, no pet.); Ex parte Ayers, 921 S.W.2d 438, 440 (Tex.App.--Houston [1st Dist.] 1996, no writ). However, an abuse of discretion review of a trial court s decision is not necessarily appropriate in the context of application of law to facts when the decision does not turn on the credibility or demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App. 1999); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Instead, an appellate court must conduct a de novo review when the trial judge is not in an appreciably better position than the reviewing court to make that determination. Guzman, 955 S.W.2d at 87; see also Mann, 34 S.W.3d at 718. While the trial court did not hear live testimony, the facts were contested, the affidavits were conflicting, and the same trial judge presided at Appellant s guilty plea and his petition for writ of habeas corpus. Cf. Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App. 1999)(applying de novo review when the only evidence submitted was an affidavit by the State and facts were uncontested); Ex parte Wheeler, 61 S.W.3d 766, 770 (Tex.App.--Fort Worth 2001), vacated by, 122 S.W.3d 170 (Tex.Crim.App. 2003)(applying de novo review after finding no testimony on the merits was given at the habeas hearing and that the judge who heard the petition did not preside over appellant s trial). Accordingly, we shall give deference to the decision of the trial court and apply an abuse of discretion standard. See Manzi v. State, 88 S.W.3d 240, 244 (Tex.Crim.App. 2002)(finding that the court must employ a deferential standard of review of the trial court s resolution of historical facts from conflicting affidavits).

Voluntariness of the Plea

Appellant contends that trial counsel failed to dispute his assertions that he was not apprised of facts contained in the State s file, the law applicable to his case, or available legal defenses. Further, he argues that the trial court appeared to have decided that trial counsel was not obligated to do those things. Finally, he alleges that an independent review of facts was not enough to render effective assistance of counsel and that he could not have been expected to make an informed, educated decision about whether to plead guilty or go to trial due to the actions and inactions of trial counsel. Appellant relies on the following cases to support this proposition: Ex parte Dunham, 650 S.W.2d 825, 826-27 (Tex.Crim.App. 1983)(finding that applicant was not given competent advice from which to make an informed and conscious choice regarding his right to jury trial because trial counsel did little trial preparation and convinced applicant to waive his right to jury trial even though trial counsel knew the decision was disadvantageous for the applicant); Ex parte Walker, 794 S.W.2d 36, 36 (Tex.Crim.App. 1990)(finding that while trial counsel gave competent advice by advising applicant to seek jury sentencing that he failed to effectuate the applicant s decision by failing to timely file the motion so that applicant s informed decision was rendered meaningless); Ex parte Morse, 591 S.W.2d 904, 905 (Tex.Crim.App. 1980)(finding ineffective assistance of counsel due to no advice regarding facts or law, right to jury trial, right to appeal, the consequences of a guilty plea, or the range of punishment).

Appellant claims he has demonstrated a reasonable probability existed that were it not for the inactions of his trial counsel, he would have never considered pleading guilty because the police reports failed to link him with the residence or the cocaine that was found. He suggests that this claim is founded in the record and is not a naked factual assertion.

Law Regarding Voluntary and Knowing Plea

The constitution requires a guilty plea to be made knowingly and voluntarily. See Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Elliott v. State, 874 S.W.2d 238, 239 (Tex.App.--El Paso 1994, no pet.). Texas law ensures this mandate is met through the enforcement of Article 26.13 of the Texas Code of Criminal Procedure. See Meyers v. State, 623 S.W.2d 397, 402 (Tex.Crim.App. 1981); Elliott, 874 S.W.2d at 239. The purpose of Article 26.13 is to ensure that an individual who pleads guilty comprehends the charges against him and the consequences of his plea. Basham v. State, 608 S.W.2d 677, 678 (Tex.Crim.App. 1980); Singleton v. State, 986 S.W.2d 645, 649 (Tex.App.--El Paso 1998, pet. ref d). This provision requires a trial court to admonish a criminal defendant of certain facts and rights prior to accepting a plea of guilty. Tex.Code Crim.Proc.Ann. art. 26.13 (Vernon Supp. 2004). A trial judge need only substantially comply with dictates of Article 26.13(c). Estrada v. State, 981 S.W.2d 68, 70 (Tex.App.--San Antonio 1998, pet. ref d). There is no strict formula to follow or set of questions to ask in achieving substantial compliance with the statute. Singleton, 986 S.W.2d at 650. Article 26.13(d) allows the admonitions to be made either orally or in writing. Blanco v. State, 771 S.W.2d 598, 599 (Tex.App.--Corpus Christ 1989, no pet.). If the admonitions are made in writing, both the defendant and defense counsel must sign a statement indicating the defendant understands the admonitions and is aware of the consequences of the plea. Tex.Code Crim.Proc.Ann. art. 26.13(d); Meraz v. State, 950 S.W.2d 739, 742 (Tex.App.--El Paso 1997, no pet.).

When a defendant challenges the voluntariness of a plea as a result of ineffective assistance, our analysis depends on (1) whether counsel s advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel s errors, he would not have pleaded guilty and would have insisted upon a trial on the merits. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999); Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). Like other types of ineffective assistance claims, Appellant has the burden to demonstrate that counsel s performance fell below a reasonable standard of competence and that Appellant would have, with reasonable probability, pled not guilty and insisted on a trial had he been properly advised. See id. When the record reveals that the trial court properly admonished the defendant regarding the consequences of his plea, the record presents a prima facie showing the defendant entered a knowing and voluntary plea. Ybarra v. State, 960 S.W.2d 742, 745 (Tex.App.--Dallas 1997, no pet.), citing Harris v. State, 887 S.W.2d 482, 484 (Tex.App.--Dallas 1994, no pet.). The burden then shifts to the defendant to show the plea was involuntary. Id. Where the evidence is conflicting, the trial court, as fact finder, may believe part or all of any testimony. See Floyd v. State, 914 S.W.2d 658, 666 (Tex.App.--Texarkana 1996, pet. ref d).

Proper Admonishment by Trial Court

At the guilty plea hearing, the trial court first explained to the Appellant that he was giving up his right to trial by jury, which would require the State to bring forth their witnesses. The trial court asked whether Appellant understood that he was giving up these rights, and Appellant answered yes. The State then read the indictment, and Appellant pled guilty. The following exchange then occurred:

THE COURT:Okay. You understand that if you plead guilty, I will be convicting you of this crime?

DEFENDANT:Yes.

THE COURT:Has anyone promised you anything to get you to plead guilty?

DEFENDANT:(Indicating in the negative).

THE COURT:In other words, has anybody promised you any money or that the governor would give you a pardon or anything like that?

DEFENDANT:No, sir.

THE COURT:Okay. Has anybody threatened you or tried to make you plead guilty against your will?

DEFENDANT: No, sir.

THE COURT: I take it then you are pleading guilty because you did this crime and for no other reason; is that correct?

DEFENDANT:Yes, sir.

THE COURT:Okay. The range of punishment for a second degree felony is two years to twenty years in the penitentiary and a fine up to $10,000.00 can be assessed.

DEFENDANT:Yes.

THE COURT:Now, I do not have to follow the plea bargain in this case, I can consider the entire range of punishment. If I do go along with the recommendation, another consequence will be that you will be unable to challenge your conviction on appeal, because no motions have been reserved for it --

DEFENDANT:Yes, sir.

THE COURT: Because no motions have been preserved for appeal and I have not given my permission for you to appeal.

DEFENDANT: Yes, sir.

THE COURT: If a Defendant is not a citizen of this country, a guilty plea can result in deportation, exclusion from this country, or denial of naturalization under federal law.

DEFENDANT:Yes, sir.

THE COURT: Okay. Knowing everything I have told you, do you still wish to plead guilty at this time?

DEFENDANT: Yes.

THE COURT:In your opinion, Mr. Chavez, is your client s plea freely, voluntarily and intelligently made?

MR. CHAVEZ:Yes, Your Honor.

THE COURT:I also find the plea is freely and voluntarily made and that the Defendant is mentally competent. I accept the plea.

 

The State then admitted the plea agreement in which Appellant confessed to the crime and waived his rights. The trial court noted that the plea agreement provided that the other charge against the Appellant would be dropped and that Appellant s punishment would be an eight-year probated sentence and a $1,000 fine. The trial court inquired as to whether Appellant understood the contents of the document at the time he signed it, and Appellant replied that he did. We conclude that Appellant was duly admonished concerning the voluntariness of his plea, and the burden shifted to Appellant to show his plea was not voluntary. Ybarra, 960 S.W.2d at 745.

Burden on Appellant to Show Involuntary Plea

Appellant argued that his plea was involuntary because had his trial counsel informed him about the facts included in the State s file or the law and defenses applicable to the charged offense then he would not have pled guilty. Appellant stated that Chavez did not discuss the facts with him and indicated he did not want to hear Appellant s side of the story. Further, Appellant complained that Chavez never explained what evidence the State had, his available defenses, or that trial counsel could not agree to a plea agreement without his consent.

However, Chavez testified that he did discuss the facts of the case with Appellant, as well as the consequences of his plea, especially considering his immigration status. Further, he had conversations with the prosecutor and police and filed motions to suppress and to reveal the identity of the confidential informant. Chavez had information that if the case went to trial, then testimony would be elicited that two or three confidential informants had implicated Appellant. Further, Chavez reviewed police reports and believed there was substantial evidence from which to convict Appellant, including:

"Appellant was present at the residence where the drugs were found;

 

"Appellant made Mirandized statements acknowledging ownership of the drugs;

 

"Appellant had a knife in his possession with drug residue on it;

 

"Appellant attempted to flee the scene;

"confidential informants gave information to the police that Appellant possessed and sold heroin and that he would be at that particular residence;

"Appellant immediately admitted knowledge of the drugs and led police to drugs in the kitchen;

 

"drugs and drug paraphernalia were found in the house;

"police had received information that Appellant had heroin in his pocket, and as they approached him, he began reaching in his pocket;

 

"Appellant described to police in detail the color and type of packaging of the drugs.

 

Trial counsel recommended that Appellant plead guilty, but ultimately, it was the Appellant who chose to plead guilty. Trial counsel believed the plea agreement was a good offer considering his knowledge of the case and the possible range of punishment for two second-degree felonies.

Appellant has failed to demonstrate that as a result of ineffective assistance of counsel, his plea was involuntary. The record supports a finding that Appellant made a knowing and voluntary plea. Accordingly, we find no abuse of discretion in the denial of Appellant s petition for writ of habeas corpus. Point of Error One is overruled.

RELIANCE ON TRIAL COUNSEL S AFFIDAVIT

In Point of Error Two, Appellant claims that the trial court erred by summarily accepting as true the factual assertions made in Chavez s affidavit, which Appellant characterizes as not credible, contradicted by the police reports, not supported by documentary evidence, and refuted by Appellant s affidavit. Appellant argues that an evidentiary hearing was required because existing factual disputes could not otherwise be resolved due to his airtight claim of actual innocence. // Appellant complained that the trial court s manner of resolving the factual disputes by choosing the affidavit it wished to believe was unacceptable and that the trial court acted without reference to guiding principles or reason in refusing to acknowledge his innocence in the face of his allegations and the evidence which supported his allegations.

Appellant also maintains that a hearing on a post-conviction writ application is necessary if there are controverted, unresolved material facts regarding an applicant s confinement which demand resolution. In this regard, he directs us to Ex parte Chambers, 612 S.W.2d 572, 573-74 (Tex.Crim.App. 1981); Ex parte Owens, 679 S.W.2d 518 (Tex.Crim.App. 1984); and Jackson v. State, 877 S.W.2d 768, 772 (Tex.Crim.App. 1994). However, Chambers and Owens involved writs filed under Texas Code of Criminal Procedure Article 11.07, which Appellant conceded in his writ petition that he could not utilize since his punishment was community supervision, not prison time. Furthermore, Article 11.07 provides:

If the convicting court decides that there are controverted, previously unresolved facts which are material to the legality of the applicant's confinement, it shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating the issues of fact to be resolved. To resolve those issues the court may order affidavits, depositions, interrogatories, and hearings, as well as using personal recollection. Also, the convicting court may appoint an attorney or a magistrate to hold a hearing and make findings of fact. [Emphasis added].

 

Tex.Code Crim.Proc.Ann. art. 11.07, 3(d)(Vernon Supp. 2004). Thus, the trial court may hear evidence by affidavit, and a hearing is discretionary. See id. Further, Jackson stands for the proposition that in a case involving ineffective assistance of counsel, a record is generally best developed in the context of a hearing held in relation to an application for writ of habeas corpus. 877 S.W.2d at 772. However, Jackson does not stand for the premise that such a hearing is required in a writ of habeas proceeding. See id.

Appellant filed his writ under Texas Code of Criminal Procedure Articles 11.01, 11.05, and 11.08; Texas Constitution Article 5, section 8; and U.S. Constitution amendment XIV, section 5. We find no mandate under the Texas Constitution nor in case law that prevents a trial court from requesting evidence in the form of affidavits in lieu of holding a hearing in a writ filed under Texas Constitution Article 5, section 8. Furthermore, Appellant s writ would have also been proper under Texas Code of Criminal Procedure Article 11.072, // which establishes writ procedures for an applicant who has received community supervision. Tex.Code Crim.Proc.Ann. art. 11.072, 1. Under 11.072, [i]n making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection. Id. at 6(b). Because evidence in the form of affidavits is clearly permissible under 11.072, we find no impediment to affidavit testimony in lieu of a hearing when a writ petition is filed under Texas Constitution Article 5, section 8.

Finding no abuse of discretion in the trial court s decision to obtain testimony via affidavit, we overrule Point of Error Two. The judgment of the trial court is affirmed.

 

August 5, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

 

(Do Not Publish)