Opinion filed June 23, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00239-CR
__________
CARLOS ENRIQUE HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 27779A
MEMORANDUM OPINION
This appeal arises out of a 2020 judgment adjudicating Carlos Enrique
Hernandez’s (Appellant) guilt upon revoking his deferred adjudication community
supervision for a 2016 offense of aggravated assault. See TEX. PENAL CODE ANN.
§ 22.02(a)(2) (West Supp. 2021); TEX. CODE CRIM. PROC. ANN. art. 42A.101 (West
2018). In a January 30, 2019, handwritten pro se application for writ of habeas
corpus, Appellant collaterally attacked the original order imposing deferred
adjudication community supervision pursuant to Appellant’s guilty plea. He argued
that he had received ineffective assistance of counsel in choosing to plead guilty,
that he was not guilty of the offense charged and to which he had pleaded guilty, and
that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83, 87 (1963).
In his first issue on appeal, Appellant argues that the trial court abused its
discretion by not allowing Appellant to present evidence of a Brady violation at the
punishment hearing—which occurred well after the trial court had revoked
Appellant’s deferred adjudication community supervision and adjudicated him
guilty of the 2016 offense of aggravated assault with a deadly weapon. In his second
issue, Appellant collaterally attacks the trial court’s order imposing the deferred
adjudication community supervision, arguing that the order is void because it is
supported by no evidence. In his third and final issue, Appellant argues that the trial
court abused its discretion by denying his application for writ of habeas corpus. We
affirm.
Background
On June 23, 2016, Appellant had a physical altercation with Jason Gomez.
The State’s information alleged that Appellant came at Gomez “with a knife in his
hand.” It states that Gomez saw Appellant “holding a knife in his hand” and that
Appellant “was holding the knife in his hand as he was striking Gomez.” Gomez’s
brother called the police, and Appellant fled the scene. The information further
states that Appellant dropped the knife as he ran away and that “Gomez heard the
knife hit the concrete.” A knife was located at the scene of the altercation by
responding officers with the Abilene Police Department. Appellant was not arrested
until March of 2018. An attorney was appointed to represent Appellant on March 9,
2018. On June 28, 2018, a grand jury indicted Appellant for “intentionally,
knowingly, and recklessly caus[ing] bodily injury to . . . Gomez by striking him with
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a knife,” alleging that Appellant “use[d] a deadly weapon, to-wit: a knife . . . during
the commission of the assault.”
On December 7, 2018, Appellant pled guilty, swearing in a written “judicial
confession” that he had “read the indictment . . . and committed each and every act
alleged [t]herein,” that “[a]ll facts alleged in the indictment or information are true
and correct,” and that “[a]ll deadly weapon allegations are true and correct.” The
trial court accepted Appellant’s guilty plea on December 12, 2018, deferring the
adjudication of Appellant’s guilt subject to his successful completion of community
supervision for a period of ten years. We note that Appellant has not provided us
with a reporter’s record from the hearing wherein he entered his guilty plea.
On January 22, 2019, the State moved to adjudicate Appellant guilty of the
2016 offense of aggravated assault and to revoke his community supervision. In its
motion, the State alleged that Appellant violated his probation by committing
another assault with a deadly weapon on January 1, 2019, against Guadalupe Isabele
Ramirez. Specifically, Appellant was alleged to have slammed Ramirez’s head
against a wall, pinned her to the floor, and struck her in the chin with a knife.
While in jail for the aforementioned alleged probation violation, Appellant
filed a pro se application for writ of habeas corpus on January 30, 2019, alleging that
he was deprived of the effective assistance of counsel in choosing to plead guilty. It
also alleged that the State had committed a Brady violation by withholding
exculpatory evidence. The application for habeas corpus was written by Appellant
while he was in jail pursuant to the State’s original motion to revoke.
On March 14, 2019, the State dismissed its original motion to revoke. This
occurred a month and a half after Appellant’s trial attorney filed a Motion to Set
Aside [Guilty] Plea and Dismiss Case, based on the complaints that Appellant had
made in the handwritten application for writ of habeas corpus. The record shows
that no hearing was held before the trial court on either Appellant’s pro se application
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for writ of habeas corpus or the aforementioned motion filed by his trial attorney, or
that Appellant or his trial attorney ever requested that either or both motions be set
for hearing.
A hearing was held on March 26, 2019, on the State’s motion to dismiss the
original motion to revoke. No transcript of that hearing was provided to us.
However, in conjunction with the hearing, the trial court did dismiss the State’s
original motion to revoke but then also modified the conditions of Appellant’s
community supervision. With the dismissal of the motion to revoke and the
modification of the conditions of Appellant’s community supervision, again, there
is no record that Appellant or his trial counsel requested a hearing or a formal ruling
on Appellant’s motion or the referenced application for writ of habeas corpus.
On March 26, 2019, upon the State’s motion to dismiss its motion to revoke,
the trial court amended the conditions of Appellant’s community supervision and
ordered that Appellant be transferred to a Substance Abuse Felony Punishment
Facility (SAFPF) for treatment. The trial court amended the conditions of
Appellant’s community supervision several more times, requiring, inter alia, that
Appellant be transferred to a halfway house—the Clover House—in Odessa after
completing the treatment program at SAFPF and that he pay various fees and costs.
On July 28, 2020, the State again moved to adjudicate Appellant guilty of the
2016 offense of aggravated assault and to revoke his community supervision,
realleging the January 1, 2019 violations and alleging fourteen additional violations.
Among the new violations alleged were multiple failures to refrain from the use of
narcotics, multiple failures to pay fees and costs assessed against him, failure to
perform community service, and “intentionally flee[ing] . . . persons . . . [he] knew
were peace officers who were attempting lawfully to arrest or detain [him][.]”
At the August 13, 2020 hearing on the State’s amended motion to revoke,
Appellant called no witnesses and presented no evidence. Appellant only cross-
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examined the State’s witnesses. The State’s witnesses were Appellant’s probation
officer and one of the police officers who arrested Appellant pursuant to a warrant
issued for violating the conditions of his community supervision. The trial court
found that twelve of the State’s allegations were true and that Appellant had violated
certain terms and conditions of his community supervision. The trial court then
adjudicated Appellant guilty of the 2016 offense of aggravated assault with a deadly
weapon and revoked his community supervision. The trial court postponed the
assessment of punishment, ordered a presentence investigation, and set the case for
a subsequent hearing on punishment.
At the subsequent punishment hearing, which was held in October 2020,
Appellant testified that he never had a knife during the 2016 altercation with Gomez.
He called Gomez as a witness, and Gomez testified that he did not actually see a
knife but, rather, assumed that Appellant had a knife based, in part, on the way
Appellant approached him with one hand behind his back and, in part, on what
responding officers had told him. Appellant also attempted, unsuccessfully, due to
the State’s objections, to testify as to circumstances supporting his belief that the
State committed a Brady violation by withholding evidence of Gomez’s recantation
of prior statements. The trial court assessed Appellant’s punishment at nine years
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. This appeal followed.
Discussion
“[A] defendant placed on deferred adjudication community supervision may
raise issues relating to the original plea proceeding . . . only in appeals taken
when deferred adjudication community supervision is first imposed.” Manuel v.
State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). Such issues may not be
raised in an appeal from an order adjudicating guilt and revoking community
supervision. Id. Indeed, “an appellant will not be permitted to raise on appeal from
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the revocation of his community supervision any claim that he could have brought
on an appeal from the original imposition of that community supervision.” Wiley v.
State, 410 S.W.3d 313, 319 (Tex. Crim. App. 2013). “[F]ail[ure] to do so results in
procedural default.” Riles v. State, 452 S.W.3d 333, 338 (Tex. Crim. App. 2015).
There are, however, two exceptions to the aforementioned rule: (1) the “void
judgment” exception and (2) the “habeas corpus” exception. Nix v. State, 65 S.W.3d
664, 667 (Tex. Crim. App. 2001). For the reasons articulated below, we hold that
neither of these exceptions are applicable here.
I. The habeas corpus exception is inapplicable; Appellant did not
timely attempt to litigate the issues.
A. Applicable Law
“The habeas corpus exception essentially involves the litigation of a writ of
habeas corpus at the probation revocation proceedings.” Nix, 65 S.W.3d at 669. To
invoke the habeas corpus exception on appeal, three conditions must hold true. Id.
at 669–70. First, the appellant must have actually filed an application for writ of
habeas corpus prior to the revocation proceeding. Id. at 670. Second, the issues
raised with respect to the order imposing deferred adjudication community
supervision must actually be cognizable on a writ of habeas corpus. Id. And finally,
the appellant must show that he actually attempted to litigate those issues at the
revocation proceeding. Id.
B. Analysis
Appellant filed a pro se application for writ of habeas corpus on January 30,
2019. In it and in Appellant’s motion to set aside his guilty plea, Appellant asserted
that he was provided ineffective assistance of counsel in choosing to plead guilty
and that the State committed a Brady violation by withholding exculpatory evidence.
However, Appellant did not “attempt to litigate” the claims asserted in his
application for writ of habeas corpus at the hearing on the State’s amended motion
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to revoke. See Sisk v. State, No. 2-05-301-CR, 2006 WL 744302, at *1 (Tex. App.—
Fort Worth Mar. 23, 2006, pet. ref’d) (mem. op., not designated for publication)
(dismissing an appeal where appellant “did not attempt to litigate” his habeas issues
at the “proceeding on the State’s motion for adjudication of guilt”).
At the revocation hearing, trial counsel for Appellant merely cross-examined
Appellant’s probation officer and the officer who arrested Appellant pursuant to a
warrant for violating terms and conditions of his community supervision.
Appellant’s trial counsel cross-examined the arresting officer about minor
inconsistencies between his testimony and his arrest report and whether Appellant’s
violent reaction to the attempted arrest was reasonable in light of the officer telling
Appellant, “I’m going to shoot you.” Appellant’s probation officer was cross-
examined about whether Appellant successfully completed the SAFPF program and
whether he was successful during his stay at Clover House .
Appellant did not call his plea attorney as a witness in order to litigate the
ineffective assistance issue in his habeas application. Nor did Appellant attempt to
litigate the issue of whether the State committed a Brady violation. Appellant did
not call Gomez to testify and litigate, in any way, the issue of Gomez’s recantation
of his previous allegations that Appellant used a knife when he attacked Gomez.
Notably, at the beginning of the revocation hearing, Appellant announced “not
ready” because Gomez was an absent witness. However, when the trial court
inquired further, the following exchange took place:
THE COURT: [Appellant] had issued a subpoena for Jason
Gomez and did not announce ready because he was not present.
....
[COUNSEL]: . . . He is a punishment witness, Your Honor.
THE COURT: Right.
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[COUNSEL]: We’re going to be asking for a PSI from the Court
on this, and we may wish to take that up if we get to a punishment
phase.
THE COURT: Okay. And so your -- your reason for announcing
not ready was because he wasn’t here?
[COUNSEL]: That’s correct. Yes.
THE COURT: Otherwise, you were ready?
[COUNSEL]: Yes. It was a clerical error on my part.
THE COURT: Yes. I understand. I understand. But he will not
be needed in this hearing until the issue of punishment; is that correct?
[COUNSEL]: That is correct. Yes.
THE COURT: Okay. Then the State may proceed.
Thus, as to the issue of Appellant’s guilt, not only did Appellant not attempt to
litigate the alleged Brady violation at the revocation hearing, but he also
affirmatively represented that he had no intention of doing so. By the end of the
revocation/adjudication hearing, Appellant had not requested or made any attempt
to litigate any of the issues raised in his habeas application.
At the subsequent punishment hearing, having already been adjudicated guilty
for the 2016 aggravated assault with a deadly weapon offense about two months
earlier and having had his community supervision revoked, Appellant testified that
there was no knife involved in his altercation with Gomez and that his plea counsel
had not explained that Appellant did not have to plead guilty to receive deferred
adjudication community supervision. Appellant therefore claimed that his guilty
plea was involuntary. Appellant also attempted to testify that Gomez recanted his
claim that Appellant used a knife and that the State withheld this information, but
the trial court sustained the State’s objection to this proffered testimony. On cross-
examination, Appellant conceded that he knew he was pleading guilty to aggravated
assault with a deadly weapon when he chose to plead guilty.
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Under the habeas corpus exception, Appellant was required to litigate the
issues in his habeas application at the adjudication/revocation hearing, not at a
separate, subsequent punishment hearing. See Few v. State, 136 S.W.3d 707, 713
(Tex. App.—El Paso 2004, no pet.) (citing Nix, 65 S.W.3d at 669–70) (holding that,
“because the Application for Writ of Habeas Corpus was not litigated at the same
hearing as the revocation, the habeas corpus exception d[id] not apply”). Appellant
did not attempt to litigate the issues set out in his application for writ of habeas
corpus at his adjudication and revocation hearing, nor did he ever request that the
trial court set his writ application for hearing so that these issues could be litigated
and ruled on by the trial court. Accordingly, we overrule Appellant’s first issue.
II. The void judgment exception is inapplicable—Appellant’s guilty
plea, judicial confession, and the reporter’s record from the original
plea.
A. Applicable Law
“A judgment of conviction in a criminal case is void . . . [if] the record reflects
that there is no evidence (not merely insufficient evidence) to support the
conviction[.]” Schibi v. State, 635 S.W.3d 461, 464 (Tex. App.—Eastland 2021, no
pet.). Thus, a conviction is not void if there is any evidence supporting it. Id. at 465.
“[F]or a judgment to be void, the record must leave no question about the
existence of the fundamental defect.” Nix, 65 S.W.3d at 668. “If the record is
incomplete, and the missing portion could conceivably show that the defect does not
in fact exist, then the judgment is not void, even though the available portions of the
record tend to support the existence of the defect.” Id. at 668–69. “[W]hen a
defendant levels a ‘no evidence’ challenge against the conviction, but the record
contains no court reporter’s transcription of the original plea hearing, then the
conviction is not void, even though the record—as far as it goes—tends to support
the no evidence claim.” Id. at 669. Accordingly, “we must assume that the missing
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record would support the judgment, [and so] the conviction is not void.” Pizana v.
State, 398 S.W.3d 728, 731 (Tex. App.—San Antonio 2009, no pet.).
A guilty plea itself constitutes some evidence for the purpose of defeating a
no evidence challenge under the void judgment exception. Schibi, 635 S.W.3d at
465; see also Fox v. State, No. 02-19-00240-CR, 2020 WL 579111, at *3 (Tex.
App.—Fort Worth Feb. 6, 2020, pet. ref’d) (mem. op., not designated for
publication) (holding that a guilty plea was sufficient by itself to prevent a judgment
from being void for no evidence). A judicial confession also constitutes some
evidence for the purpose of defeating a no evidence challenge under the void
judgment exception. Pizana, 398 S.W.3d at 731.
B. Analysis
Appellant argues that the void judgment exception enables him to bring this
appeal because there is no evidence supporting his conviction for aggravated assault
with a deadly weapon. See Nix, 65 S.W.3d at 668. We disagree. There are at least
two reasons why Appellant is not entitled to bring this appeal under the void
judgment exception. First, Appellant pleaded guilty and signed a judicial
confession. Second, the appellate record contains no transcript of Appellant’s
original plea hearing. For either of these reasons, as explained below, Appellant
cannot collaterally attack his conviction for aggravated assault with a deadly weapon
as supported by no evidence under the void judgment exception.
First, Appellant cannot collaterally attack his conviction for aggravated
assault with a deadly weapon as supported by no evidence under the void judgment
exception because Appellant pleaded guilty to that offense. A conviction is not void
for lack of evidence under the void judgment exception when there is any evidence
supporting it. Schibi, 635 S.W.3d at 465. A guilty plea constitutes some evidence
supporting the conviction. Nix, 65 S.W.3d at 668 n.14; Schibi, 635 S.W.3d at 465;
Fox, 2020 WL 579111, at *3. In this case, Appellant signed a judicial confession
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wherein he admitted that he committed every act alleged in the indictment and that
the “deadly weapon allegations are true and correct.” For purposes of a no evidence
challenge under the void judgment exception, “a judicial confession alone is
sufficient to sustain a conviction upon a guilty plea.” Pizana, 398 S.W.3d at 731.
Second, a no evidence challenge under the void judgment exception is not
available to Appellant because the record contains no transcript of the original plea
hearing. When the record contains no court reporter’s transcription of the original
plea hearing, a conviction based upon a guilty plea is not void even if the record
otherwise tends to support an assertion that there is no evidence to support the
conviction. Nix, 65 S.W.3d at 669. We must assume that the reporter’s record would
support Appellant’s conviction. Pizana, 398 S.W.3d at 731. Thus, we assume that
the transcript of Appellant’s plea hearing would contain additional evidence
supporting his conviction for aggravated assault with a deadly weapon.
Because the record does contain evidence supporting Appellant’s conviction,
he may not challenge the trial court’s imposition of deferred adjudication community
supervision under the void judgment exception.1 Accordingly, we overrule
Appellant’s second issue.
1
We recognize that “[i]nvoluntary plea or ineffective assistance claims, even if meritorious, do not
render a conviction void.” Few v. State, 136 S.W.3d 707, 712 (Tex. App.—El Paso 2004, no pet.); see also
Sisk v. State, No. 02-05-301-CR, 2006 WL 744302 (Tex. App.—Fort Worth March 23, 2006, pet. ref’d)
(mem. op., not designated for publication) (citing Few for the proposition that “[a]n involuntary plea does
not render a conviction void”). This is because claims of an involuntary plea and ineffective assistance are
fact-intensive claims, whereas “a voiding defect should be one that can be ascertained from the record with
little difficulty.” Nix, 65 S.W.3d at 669. Appellant’s attack on the trial court’s order imposing deferred
adjudication community supervision was not limited to involuntary plea and ineffective assistance claims.
Here, the holding that the void judgment exception does not apply is, however, dispositive of all of
Appellant’s claims, including ineffective assistance and Brady claims alike.
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III. Appellant cannot appeal matters relating to his application for writ
of habeas corpus absent a ruling from the trial court denying the
application in whole or in part.
In his third and final issue, Appellant argues that if we determine that his
application for writ of habeas corpus “was denied in conjunction with his
revocation,” then we “should also determine that such denial amounted to an abuse
of discretion.” We disagree.
Article 11.072 of the Texas Code of Criminal Procedure “establishes the
procedures for an application for writ of habeas corpus in a felony or misdemeanor
case in which the applicant seeks relief from an order or a judgment of
conviction ordering community supervision.” CRIM. PROC. art. 11.072, § 1. Thus,
Article 11.072 governs Appellant’s application for writ of habeas corpus because he
sought relief from the trial court’s imposition of deferred adjudication community
supervision. As relevant here, “the appealability of an application for writ of habeas
corpus filed under Article 11.072 following a disposition by the district court is
controlled by Section 8 of Article 11.072.” Ex parte Villanueva, 252 S.W.3d 391,
397 (Tex. Crim. App. 2008).
Section 8 states that, “[i]f the application is denied in whole or part, the
applicant may appeal under Article 44.02 and Rule 31 of the Texas Rules of
Appellate Procedure.” CRIM. PROC. art. 11.072, § 8. Thus, where, as here, “the trial
court decline[s] to rule on a properly filed habeas application, as article 11.072
requires,” Appellant may “file[] a petition for a writ of mandamus in this court,
requesting that the trial judge be ordered to rule on his application; however, he has
no right to appeal such a failure to rule.” Arias v. State, No. 14-04-00972-CR, 2006
WL 2071846, at *1 n.2 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (mem. op.,
not designated for publication). It is undisputed that the trial court did not rule on
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Appellant’s application for writ of habeas corpus. As such, Appellant’s third issue
presents nothing for our review.
This Court’s Ruling
Neither the habeas corpus exception nor the void judgment exception applies
to Appellant’s circumstances. Accordingly, he cannot collaterally attack his original
plea of guilty and the trial court’s order imposing deferred adjudication community
supervision. See Schibi, 635 S.W.3d at 466. Because Appellant’s complaints
concern the validity of his original guilty plea and the trial court’s imposition of
deferred adjudication community supervision pursuant to that plea, Appellant was
required to raise these issues in an appeal from the trial court’s order placing him on
community supervision, not from the trial court’s subsequent adjudication of guilt
and revocation of community supervision. See Manuel, 994 S.W.2d at 661–62; Few,
136 S.W.3d at 713; Webb v. State, 20 S.W.3d 834, 835–36 (Tex. App.—Amarillo
2000, no pet.). Such an appeal should have been commenced within thirty days of
the trial court’s judgment deferring Appellant’s guilt and placing him on community
supervision. See TEX. R. APP. P. 26.2(a)(1). Therefore, we overrule Appellant’s first
two issues, dismiss his third issue, and affirm the judgment of the trial court. See
Schibi, 635 S.W.3d at 466; Sisk, 2006 WL 744302, at *1.
W. BRUCE WILLIAMS
JUSTICE
June 23, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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