Angel Tavera Balderas v. State

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Opinion issued May 3, 2007































In The

Court of Appeals

For The

First District of Texas



NO. 01-06-00472-CR

__________



ANGEL TAVERA BALDERAS, Appellant



V.



THE STATE OF TEXAS, Appellee



On Appeal from County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1350293



MEMORANDUM OPINION

We deny appellant's motion for rehearing. Tex. R. App. P. 49.3. We withdraw our January 11, 2007 opinion, substitute this opinion in its place, and vacate our January 11, 2007 judgment.

Appellant, Angel Tavera Balderas, challenges the trial court's order denying his application for a writ of habeas corpus. (1) In three issues, appellant contends that "the trial court erred in failing to conduct an evidentiary hearing" and that the trial court erred in denying his application on the grounds that he was denied his right to an interpreter and his right to appeal.

We affirm the order of the trial court.

Factual and Procedural Background

On March 3, 1995, appellant pleaded guilty to the misdemeanor offense of theft, and the trial court assessed his punishment at confinement for ten days in the Harris County Jail. (2) On December 1, 2005, appellant filed an application for a writ of habeas corpus, asserting that he was denied his right to effective assistance of counsel, his waiver of a jury trial was involuntary, his plea of guilty was involuntary, "especially in light of the trial court's failure to admonish [him] as to the direct and collateral consequences that [he] could be subjected to deportation and exclusion from the United States," and he was not advised of his rights to a court reporter, an interpreter, and an appeal. Appellant requested an "evidentiary hearing" and attached a verification.

The State filed a response, asserting that appellant "did not make a reasonable showing that his attorney's conduct fell below an acceptable standard causing him harm," appellant "signed a written waiver of his right to testify and present witnesses and evidence," "it is presumed that the presiding judge advised [appellant] through his plea he was giving up said rights," appellant "signed his plea admonishments," "it is presumed [appellant] was informed of his rights and that he voluntarily gave them up when he entered his plea," and there was "absolutely no record that [appellant] was ever forced to plea, or that he was not properly admonished." The State further asserted that appellant's application could be resolved "without the need for an evidentiary hearing."

Appellant filed an affidavit and testified that he hired attorney Juan Contreras to represent him in the theft case. He further testified:

[Contreras] told me that I would have to do 10 days in Jail and that my case would be finished and closed and that I would have to plead guilty. He asked me to sign some documents that were in English and he was my interpreter.



At the time I plead guilty, . . . I was totally illiterate in the English language. . . . I was totally dependent on my attorney to know the law and explain it to me and any interpreter to explain to me any written documents in English or any words that were spoken to me in the English language.



I signed some documents for attorney Contreras that were in English. There was no interpreter that explained those documents to me. I did not have an interpreter, nor did I know that I was entitled to have an interpreter. Mr. Contreras told me what the documents said since they were in the English language and he also interpreted for me in front of the judge. . . . He never asked me what my immigration status was or whether I was a resident alien. He did not explain that by pleading guilty and taking time in jail it was going to be a final conviction on my record that could never be erased or its consequences. He did not explain to me about probation or . . . deferred adjudication probation or explain the differences between the two and which would have less of a consequence for . . . immigration purposes.



. . . .



At the time I did not know that it could be used as a basis to deport [me] from this country and lose all my right[s] to naturalization, lose my Permanent Resident Alien Status and to exclude me from this country.



At the present, the United States Immigration and Naturalization Service is taking away my rights as a Resident Alien, denying my right to naturalization and I am fighting deportation based on the fact that I have never been convicted of theft.



. . . .



When I was in front of the judge, I do not remember my attorney telling me that the judge was warning me of the fact that if I plead guilty to this offense that I could be deported, excluded or denied naturalization under federal law.



Appellant also testified that Contreras did not explain his right to a jury trial, to a court reporter, or to file a motion for new trial or appeal. Appellant stated that he would not have pleaded guilty had he been aware of these rights and the consequences of pleading guilty. Finally, appellant testified that he "did not plead guilty knowingly and voluntarily." (3)

The trial court denied appellant's application.

Confinement We first address the State's argument that, because appellant has served the sentence assessed by the court in the theft case, he is not confined as required for relief under Chapter 11 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.01-.65 (Vernon 2005 & Supp. 2006).

A writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. Ex parte Davis, 748 S.W.2d 555, 557 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 11.04 (Vernon 2005)). To be entitled to habeas corpus relief, an applicant must establish that he was either "confined" or "restrained" unlawfully at the time the application was filed. See Dahesh v. State, 51 S.W.3d 300, 302 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd) (citing Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 558 (Tex. Crim. App. 1989)). The term "confinement" refers "not only to the actual, corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits." Tex. Code Crim. Proc. Ann. art. 11.21 (Vernon 2005). The term "restraint" refers to "the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right." Id. art. 11.22 (Vernon 2005). The terms "confinement" and "restraint" encompass incarceration, release on bail or bond, release on probation or parole, or any other restraint on personal liberty. See Rodriguez, 769 S.W.2d at 558; Davis, 748 S.W.2d at 557.

Based on the above statutes, this Court has concluded that "a void misdemeanor conviction constitutes 'confinement' or 'restraint' . . . and also constitutes the necessary collateral legal consequences that would invoke the writ powers of this Court." Davis, 748 S.W.2d at 557; see also Ex parte Stamnitz, 768 S.W.2d 461, 462 (Tex. App.--Houston [1st Dist.] 1989, no pet.). In Davis, this Court held that an applicant who had already served a misdemeanor sentence and paid a fine imposed by the trial court was nonetheless "confined" because he was denied entry into the military as a result of his misdemeanor conviction. 748 S.W.2d at 557. Accordingly, to the extent that appellant has become the subject of deportation proceedings based upon what he contends is a void misdemeanor conviction, we hold that appellant is not precluded from seeking habeas corpus relief. We now turn to the merits of appellant's appeal.

Standard of Review

An applicant for a writ of habeas corpus bears the burden of proving his allegations by a preponderance of the evidence. Ex Parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995). In reviewing the trial court's ruling, we view the facts in the light most favorable to the trial court's ruling and we afford almost total deference to the court's determination of historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court's rulings on "application of law to fact questions" that involve an evaluation of credibility. Id. If resolution of those ultimate questions turns on an application of legal standards, we review those determinations de novo. Id.

Hearing

In his first issue, appellant contends that "the trial court erred in failing to conduct an evidentiary hearing where there were sworn, verified, and controverted material issues of fact both in the pleadings and the affidavits submitted by appellant, the State, and former trial counsel." The State contends that the trial court held a hearing "by affidavits only" and denied appellant's application because the trial court "did not believe appellant's affidavit." (4) The State further contends that appellant did not object to the trial court's decision not to hear live testimony and that the Code of Criminal Procedure does not require a live evidentiary hearing on the application.

The State's contentions are supported by the record. In its original order directing the State to respond to the application, the trial court set a hearing on the merits of appellant's application on March 2, 2006. Then, on March 2, 2006, the trial court signed a "case reset form," stating that the "undersigned Defendant and Counsel acknowledge that this case is reset" for a hearing on March 29, 2006. Appellant's attorney signed the reset form and, in the space for appellant's signature, there is a notation stating "by submission affidavits." On March 30, 2006, the trial court signed another "case reset form," resetting the case for a writ hearing on April 11, 2006. Again, appellant's attorney signed the form, which noted that the parties had filed affidavits in regard to appellant's application. On April 11, 2006, the trial court signed its order, reciting that it had "heard [appellant's] application for writ of habeas corpus," the parties appeared for a hearing on the application, it had reviewed the pleadings, and it had heard the evidence and argument of the parties. Thus, the record reflects that the trial court conducted a hearing on appellant's application by considering the pleadings on file and the evidence submitted by the parties, including the affidavits, albeit without the aid of live testimony. (5)

Article 11.09 of the Texas Code of Criminal Procedure, which specifically applies to persons seeking habeas relief who are confined on misdemeanor charges, (6) does not require a trial court to conduct a live evidentiary hearing and afford a party the opportunity to present live testimony on an application filed under the article. See Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005) ("If a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed . . . .)." (7)

We overrule appellant's first issue.

Interpreter

In his second issue, appellant contends that the trial court erred in denying his application on the ground that he was denied his right to an interpreter. "When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness." Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2006).

The Texas Court of Criminal Appeals has acknowledged that providing an interpreter to an accused who does not understand English is required by the Confrontation Clause (8) and by Article I, section 10 of the Texas Constitution. (9) Baltierra v. State, 586 S.W.2d 553, 556-59 (Tex. Crim. App. 1979). The court has more recently concluded that "when a trial judge is aware that [a] defendant has a problem understanding the English language," his right to have an interpreter is a right "which must be implemented by the system unless expressly waived." Garcia v. State, 149 S.W.3d 135, 144-45 (Tex. Crim. App. 2004). The court explained that "[t]he judge may become aware of the defendant's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte." Id. The court held that because the record demonstrated that the trial court was aware of the defendant's language problem, the trial court was required to ensure that the trial proceedings were translated. Id.; see also Ex parte Nanes, 558 S.W.2d 893, 894 (Tex. Crim. App. 1977) (granting post-conviction habeas relief to defendant who alleged he was denied his constitutional rights "because he was not afforded an interpreter" based on stipulation by State that defendant did not understand English and affidavit from interpreter who testified that he was not present during many phases of trial); Miller v. State, 177 S.W.3d 1, 7 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (holding that once trial court became aware of complainant's language problem, court had independent duty to secure interpreter).

This case is distinguishable both procedurally and substantively. First, here, there is no reporter's record of the plea hearing, and nothing in the record suggests that appellant complained of a failure of the trial court to appoint an interpreter during the plea hearing. Furthermore, there is no evidence that the trial court was aware that appellant had difficulty understanding English. In fact, appellant, in making his ineffective assistance of counsel argument in his application, asserts that his counsel "fail[ed] to bring to the trial court's attention" his inability to speak English and his need for an interpreter. Because there is no evidence that the trial court was aware of appellant's inability to speak English, the trial court was not required to appoint an interpreter. See Garcia, 149 S.W.3d at 145; see also Leon v. State, 25 S.W.3d 841, 843 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd) ("Unless the record otherwise demonstrates the defendant's lack of understanding of the proceedings, a defendant who does not request an interpreter waives the right to complain on appeal.").

Second, in this case, appellant pleaded guilty to the offense, and the trial court's judgment recites that appellant "knowingly, intelligently, voluntarily, and expressly waived trial by jury, and in open court pleaded as indicated above." "Absent any showing to the contrary, we assume regularity in the proceedings." Leon, 25 S.W.3d at 843 (citing Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex. Crim. App. 1984)). Moreover, the evidence cited above supports the trial court's rejection of appellant's affidavit testimony regarding the voluntariness of his plea. Thus, the trial court was presented with evidence on which it could have found that appellant had been informed of his legal rights, including his right to confront witnesses in a jury trial, and that he voluntarily and intelligently waived those rights. See Briones v. State, 595 S.W.2d 546, 547-48 (Tex. Crim. App. 1980); Leon, 25 S.W.3d at 843-44. Accordingly, we hold that the trial court did not err in denying appellant's application for a writ of habeas corpus on the ground that he was denied his right to an interpreter.

Appellant also contends, in a single sentence in his second issue, that his trial counsel's failure to alert the trial court to his need for an interpreter fell below an objective standard of reasonableness. To prevail on his claim of ineffective assistance, appellant must show that (1) his counsel's representation fell below an objective standard of reasonableness and (2) a reasonable probability exists that but for his counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). A "reasonable probability" is one sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). It is appellant's burden to prove ineffective assistance, and in reviewing counsel's performance, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

Here, the trial court was presented with conflicting evidence regarding appellant's need for an interpreter, in addition to his counsel, who had been appointed to assist him in the plea hearing. Appellant himself testified that Contreras served as his interpreter during the plea hearing. Thus, the trial court acted within its discretion in rejecting appellant's testimony and concluding that there was no need to appoint an interpreter and that appellant voluntarily waived a jury trial and entered his guilty plea. Accordingly, we hold that appellant has failed to demonstrate that counsel's performance fell below an objective standard of reasonableness.

We overrule appellant's second issue.

Right to Appeal

In his third issue, appellant contends that the trial court erred in denying his application on the ground that he was denied his right to appeal. Appellant makes no separate argument concerning this issue, and waives this issue for our review. See Tex. R. App. P. 38.1(h). (10)

We overrule appellant's third issue.

Conclusion

We affirm the order of the trial court.





Terry Jennings

Justice



Panel consists of Justices Nuchia, Jennings, and Higley.



Do not publish. Tex. R. App. P. 47.2(b).

1.

See Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005).

2.

The State of Texas v. Angel Tavera Balderas, no. 9445798, in County Criminal Court at Law Number Three, Harris County, Texas.

3.

We note that Contreras filed a document entitled "Affidavit of Counsel in Response to Writ." However, the document is not notarized, does not contain a jurat, and is substantively defective, rendering it incompetent. See,e.g., Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex. App.--Houston [14th Dist.] 1997, writ denied)); see also Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7, 15 n.12 (Tex. App.--Houston [14th Dist.] 2005, pet. filed). Accordingly, we will not consider Contreras's affidavit for any purpose.

4.

The record contains a copy of the trial court's "final docket" with the notation "relief sought under writ denied. Veracity of def[andant's] affidavit suspect."

5.

We recognize that the Court of Criminal Appeals has held, in the context of an application for a writ of habeas corpus that seeks relief from a felony judgment, that if the applicant has alleged facts that, if true, might entitle him to relief, a court should remand the matter to the trial court for resolution of the factual issues presented in accordance with article 11.07 of the Code of Criminal Procedure. See Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999) (citing Tex. Code Crim. Proc. Ann. art. 11.07(3)(d) (Vernon 2005)). Here, the trial court conducted a hearing, and nothing in the record suggests that appellant objected to the trial court's decision not to receive live testimony at the hearing. Rather, the record indicates that appellant consented to the hearing by affidavits. Additionally, appellant in this case filed his application for a writ of habeas corpus under article 11.09, not article 11.07. Article 11.07 sets forth specific procedures for the application seeking relief from a felony judgment.

6.

Article 11.10 provides, "When motion has been made to a judge under the circumstances set forth in the two preceding Articles, he shall appoint a time when he will examine the cause of the applicant, . . . . He shall also specify some place in the county where he will hear the motion." Tex. Code Crim. Proc. Ann. art. 11.10 (Vernon 2005).

7.

We note that the legislature has specifically addressed the availability of a hearing and other procedural requirements on applications filed on other types of charges. See Tex. Code Crim. Proc. Ann. art. 11.07 (establishing procedures for applicant seeking relief from felony judgment that imposes penalty other than death); Id. art. 11.072 (Vernon 2005) (establishing procedures for applicant seeking relief from felony or misdemeanor judgment ordering community supervision). In Ex Parte Cummins, the court considered an application filed under article 11.072, which states that in granting or denying an application, a court "may order affidavits, depositions, interrogatories or a hearing, and may rely on the court's personal recollection." 169 S.W.3d 752, 755-56 (Tex. App.--Fort Worth 2005, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 11.072). The court found nothing in article 11.072 requiring the trial court to conduct a hearing before rendering its decision, and held that the trial court was not prohibited from considering evidence filed with the application or response without conducting a hearing. Id. at 757. Although there is no article similar to article 11.072 addressing the availability of a hearing or other procedural requirements for the type of application at issue in this case, nothing in the Code requires a trial court to afford an applicant under section 11.09 to present, in addition to affidavits and other evidence, live testimony at an evidentiary hearing.

8.

U.S. Const. amend V.

9.

Tex. Const. art. I, § 10.

10.

In his brief, appellant states that he "adopts by reference each and every, all and singular, the arguments and authorities contained in his 'Application for Writ of Habeas Corpus' as filed in the court below and are made reference herein the same as if copied in full and set forth at length." To the extent appellant attempts to raise issues with this statement not separately briefed in his appellate brief, he has waived those issues for our review. See Tex. R. App. P. 38.1(h).