Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00494-CR
EX PARTE Richard Anthony BALDEZ
From the County Court at Law No. 4, Bexar County, Texas
Trial Court No. 2519
Honorable Sarah Garrahan, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: August 20, 2014
AFFIRMED
Richard Anthony Baldez appeals from the trial court’s order denying his post-conviction
application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (West
Supp. 2014). In a single issue, he contends the trial court erred in denying his application for writ
of habeas corpus because his appellate counsel rendered ineffective assistance in failing to inform
him of his right to file a pro se petition for discretionary review. After reviewing the trial court’s
findings, we now affirm the trial court’s order denying the habeas corpus application.
BACKGROUND
After a jury trial, Baldez was convicted of the misdemeanor offense of driving while
intoxicated; punishment was assessed at 180 days in the Bexar County jail, probated for eight
months, and a $500 fine. A panel of this court affirmed the trial court’s judgment. See Baldez v.
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State, 386 S.W.3d 324 (Tex. App.—San Antonio 2012, no pet.). A petition for discretionary
review was not filed in the Texas Court of Criminal Appeals. On June 20, 2013, Baldez filed a
pro se application for post-conviction writ of habeas corpus seeking to vacate his conviction and
requesting leave to file an out-of-time petition for discretionary review in the Texas Court of
Criminal Appeals. In his application, Baldez alleged that he received ineffective assistance of
counsel at trial and on direct appeal, and that appellate counsel was ineffective in neglecting to
notify him of his right to file a pro se petition for discretionary review.
On June 25, 2013, the trial court denied Baldez’s habeas corpus application without holding
a hearing. In its order, the trial court stated that Baldez “is manifestly entitled to no relief”;
however, the trial court did not specify that Baldez’s habeas corpus application was denied as
frivolous. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a) (West Supp. 2014). Baldez
appealed to this court, and we abated the appeal so that the trial court could clarify its order. See
Ex parte Baldez, No. 04-13-00494-CR, - - - S.W.3d - - -, 2014 WL 60094, at *2 (Tex. App.—San
Antonio Jan. 8, 2014, no pet.). The trial court entered a clarifying order, finding from the face of
the habeas corpus application that Baldez was “manifestly entitled to no relief” and that the
application was “frivolous.” The trial court further found that no hearing was necessary and denied
all relief. We subsequently reversed the trial court’s order denying the habeas corpus application
as frivolous because it could not be determined from the face of the application that Baldez was
“manifestly entitled to no relief.” Ex parte Baldez, No. 04-13-00494-CR, - - - S.W.3d - - -, 2014
WL 1908952, at *4 (Tex. App.—San Antonio May 14, 2014, no pet.). Specifically, we noted that
the record contained no evidence “contradicting Baldez’s assertions that appellate counsel did not
inform him of his right to pursue discretionary review on his own or that he would have sought
discretionary review had counsel timely informed him of his right to do so.” Id. We remanded
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the case for the entry of a written order including findings of fact and conclusions of law on “the
issue of whether Baldez received ineffective assistance of counsel, specifically whether (1)
appellate counsel failed to notify him of his right to prepare and file a pro se petition for
discretionary review, and (2) but for that deficient performance, he would have filed a pro se
petition for discretionary review.” Id.; TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7 (West Supp.
2014).
Upon remand, the trial court held a hearing at which Baldez, his appellate counsel, and the
attorney who assisted Baldez and appellate counsel on a pro bono basis testified. The pro bono
attorney testified that he informed appellate counsel that there were no grounds on which to pursue
a petition for discretionary review; he did not have any communication with Baldez in 2012.
Appellate counsel testified that she did inform Baldez of his right to prepare and file a pro se
petition for discretionary review. She stated that she informed him verbally, and also sent him
emails informing him that he could go forward pro se or hire an attorney for that purpose. Copies
of two emails were admitted at the hearing. Neither email confirms that counsel informed Baldez
that he could file a petition for discretionary review himself; rather, the emails reveal that counsel
advised Baldez that he could hire an attorney, at great cost, to file a writ on his behalf. Based on
counsel’s testimony that she verbally told Baldez that he could file a pro se petition for
discretionary review, the trial court found that counsel did, in fact, tell Baldez that he could file a
pro se petition for discretionary review.
STANDARD OF REVIEW
The trial judge is the sole finder of fact in an article 11.072 habeas case. Ex parte Garcia,
353 S.W.3d 785, 787 (Tex. Crim. App. 2011). As the Court of Criminal Appeals has explained,
“[t]here is less leeway in an article 11.072 context to disregard the findings of a trial court.” Id. at
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788. “[T]he appellate court affords almost total deference to a trial court’s factual findings when
supported by the record, especially when those findings are based upon credibility and demeanor.”
See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). Further, an “applicant’s live,
sworn testimony is a sufficient basis for upholding a decision to grant relief in an Article 11.072
habeas proceeding because the trial judge may believe any or all of a witness’s testimony.” Id.
When, as here, the habeas court has made findings of fact and conclusions of law in support of its
order, we review the trial court’s order for an abuse of discretion. Ex parte Skelton, No. 04–12–
00066–CR, - - - S.W. 3d - - -, 2014 WL 2198379, at *3 (Tex. App.—San Antonio May 28, 2014,
no pet.) (op. on reh’g) (citing Ex parte Garcia, 353 S.W.3d at 787-88) (adopting the abuse of
discretion standard set out in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) for appellate
review of article 11.072 habeas proceedings).
INEFFECTIVE ASSISTANCE OF COUNSEL
Baldez applied for habeas relief on the grounds that he received ineffective assistance at
trial, on direct appeal, and thereafter, when appellate counsel failed to inform him of his right to
file a pro se petition for discretionary review. The only ground he challenges on appeal is the
third: that he was denied his Sixth Amendment right to effective assistance of counsel when
appellate counsel failed to notify him of his right to prepare and file a pro se petition for
discretionary review, and that but for that deficient performance, he would have filed a pro se
petition for discretionary review. Because Baldez wholly failed to brief his allegations of
ineffective assistance at trial and on direct appeal, we hold that he has waived those complaints on
appeal. See TEX. R. APP. P. 38.1(f), (h), (i).
As to Baldez’s complaint regarding appellate counsel’s failure to inform him of his right
to file a pro se petition for discretionary review, we conclude that the trial court did not abuse its
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discretion in denying Baldez’s application for habeas corpus. Baldez had the burden of proving
appellate counsel failed to inform him of his right to file a pro se petition for discretionary review.
See Guerrero, 400 S.W.3d at 583 (article 11.072 applicant has the burden to prove by a
preponderance of the evidence that he is entitled to relief). At the habeas hearing, appellate counsel
testified that she verbally informed Baldez of his right to file a pro se petition for discretionary
review. Based on counsel’s affirmation, the trial court, who was in the best position to observe
the witness’s credibility and demeanor, found that appellate counsel had in fact informed Baldez
of his right to file a pro se petition for discretionary review. Mindful of the deferential standard of
review, and that the trial court is the sole fact finder in an 11.072 habeas case, we cannot conclude
that the trial court abused its discretion in denying the application for writ of habeas corpus. See
Ex parte Garcia, 353 S.W.3d at 787; Guerrero, 400 S.W.3d at 583. Accordingly, we overrule
Baldez’s issue on appeal, and affirm the trial court’s order denying the application for writ of
habeas corpus.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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