Ex Parte: Juan De La Cruz--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-04-00100-CR

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) Appeal from the

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EX PARTE: JUAN DE LA CRUZ ) 210th District Court

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) of El Paso County, Texas

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) (TC# 990D04668-210-1)

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O P I N I O N

Appellant Juan De la Cruz appeals the trial court=s denial of his petition for a writ of habeas corpus. Because we conclude that we lack jurisdiction, we must dismiss the appeal.

Appellant was charged by indictment with indecency with a child by exposure and pled guilty to the offense, pursuant to a plea bargain agreement on December 30, 1999. Adjudication of guilt was deferred and Appellant was placed on four years= deferred adjudication community supervision. On July 24, 2003, the State filed a Motion to Adjudicate Guilt. On February 26, 2004, the State filed a Motion to Dismiss Motion to Revoke Probation and Capias because Appellant had completed his period of community supervision. The trial court dismissed the State=s Motion to Revoke Probation and Capias.

On March 2, 2004, the Appellant filed an application for a writ of habeas corpus.[1] In the application, Appellant alleged that his plea in the indecency with a child case was invalid because his trial counsel rendered effective assistance of counsel. Appellant sought to have his guilty plea set aside and removal of all restraints arising from his guilty plea. The trial court issued an order setting an evidentiary hearing on Appellant=s habeas corpus application for March 25, 2004. The State filed an answer to the Appellant=s application, after which the trial court entered an order denying Appellant=s application for a writ of habeas corpus and cancelling the evidentiary hearing. The Appellant then filed a request for the trial court to reconsider its order denying the habeas corpus application. The trial court held a hearing on this motion.

At the hearing, the trial court did not rule on the merits of Appellant=s writ. Instead, the trial court entered an order denying the application for a writ of habeas corpus. At the end of the hearing, the trial court stated that it signed the order dismissing the indictment pursuant to Section 42.12(5)(a) of the Texas Code of Criminal Procedure, and that it was going to let its previous decision to deny the writ stand. See Tex.Code Crim.Proc.Ann. art. 42.12, ' 5(a) (Vernon Supp. 2004-05).

JURISDICTION

On appeal, Appellant brings three issues challenging the trial court=s denial of his habeas corpus application. In response, the State contends that this Court has no jurisdiction to consider this appeal because the trial court did not consider the merits of Appellant=s habeas corpus application.

A writ of habeas corpus is an order from a judge commanding a party, who is alleged to be restraining the applicant in some way, to appear before the court with the object of the alleged restraint and explain the reasons for restraint. See Tex.Code Crim.Proc.Ann. art. 11.01 (Vernon 2005); Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App. 1991). Where the applicant of the writ seeks relief from an order or a judgment of conviction ordering community supervision:

At the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of:

(1) the conviction for which or order in which community supervision was imposed; or

(2) the conditions of community supervision.

See Tex.Code Crim.Proc.Ann. art. 11.072, ' 2(b)(Vernon 2005). If the trial court reaches the merits of the habeas corpus application, its ruling is appealable even if it comes in the form of an order refusing to issue the writ. See Ex parte Hargett, 819 S.W.2d at 869. Conversely, an order purporting to deny the relief sought in a habeas corpus application is not appealable if the trial court did not in fact rule on the substantive merits of the applicant=s claim. See Ex Parte Bamburg, 890 S.W.2d 549, 551 (Tex.App.--Beaumont 1994, no pet.). We maintain jurisdiction over this appeal only if the trial court conducted a hearing addressing the merits of Appellant=s application for writ of habeas corpus. See Ex Parte Gonzales, 12 S.W.3d 913, 914 (Tex.App.--Austin 2000, pet ref=d). We review the record to determine if the trial court addressed the merits of Appellant=s habeas corpus application.

The record reflects that Appellant filed his Application for Writ of Habeas Corpus after the trial court had signed an order granting the State=s Motion to Dismiss Motion to Revoke Probation and Capias for the reason that the Appellant=s probation had run. The trial court=s order reads as follows:

On this day came to be considered the State=s Motion to Dismiss Motion to Revoke Probation and Capias filed by the State of Texas in the above-entitled and numbered cause, and the court having considered the same, is of the opinion that the same is in order and should be granted.

IT IS THEREFORE ORDERED that the State=s Motion to Revoke Probation and the Capias in the above-entitled and numbered cause be dismissed.

Upon the filing of Appellant=s habeas corpus application, the trial court initially set an evidentiary hearing. On March 4, 2004, the trial court signed an order denying Appellant=s application for writ of habeas corpus and cancelling the evidentiary hearing it had previously set for March 25, 2004. The Appellant then filed a request for the court to reconsider its order denying the Appellant=s habeas corpus application. The record before us contains a transcript of the hearing on Appellant=s request.

During the hearing, the State indicated to the court that since Appellant=s probation had expired, the trial court was mandated to enter a dismissal order pursuant to Section 42.12(c) of the Texas Code of Criminal Procedure. As reflected in the record, Appellant=s community supervision expired on December 30, 2003 and the trial court did in fact enter an order discharging the Appellant from community supervision the same day the hearing was held. At no time during the hearing did the trial judge consider the merits of the Appellant=s habeas corpus application. Rather, the trial court made the following statements throughout the hearing which are reflective of the fact that is was struggling with whether it could consider the merits of Appellant=s habeas corpus application:

Well, I think that the Court is mandated under 42.12 to dismiss and enter an order dismissing the indictment on this type of case, once the person has expired from deferred adjudication probation.

So that=s exactly my point. If the case is dismissed, what further relief can I afford the individual.

. . .

I just don=t see how he comes in under 11.072, Section (b). I mean, if the case is dismissed because his probationary community supervision period has expired under 42.12, Section 5(a), and the Court is dismissing the indictment, what other relief can this Court give?

. . .

I just don=t see what else I can do but dismiss pursuant to the statute. The order of community supervision has already expired. And I just don=t know what other relief I can give him if I=m dismissing the indictment. It=s basically the same --

Finally, at the end of the hearing, the trial judge stated: AI signed the order dismissing the indictment pursuant to 42.12(5)(a). I=ve denied the writ. So I=m just going to let it stand.@

After reviewing the record, it is evident that the trial court never reached the merits of Appellant=s habeas corpus application and thus, never considered whether the threat of forced deportation was a sufficient collateral illegal restraint upon Appellant=s liberty. Apparently, the trial court reached its conclusion after reading Article 11.072, ' 2(b) as barring habeas corpus relief for applicants who have already served their community supervision--an interpretation which is clearly contrary to the plain reading of the statute. See Tex.Code Crim.Proc. Ann. art. 11.072, ' 2(b)(AAt the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision.@)[Emphasis added]. Because the trial court did not consider and resolve the merits of the Appellant=s habeas corpus application, we find that we are without jurisdiction to review the trial court=s denial of habeas corpus relief in this case.

For the reason stated above, we dismiss the appeal for want of jurisdiction.

June 16, 2005

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)

[1] At the time the habeas corpus application was filed, the Appellant was being held in federal custody by the I.N.S. which sought to remove Appellant from the United States because of his guilty plea to the indecency with a child offense.