Summary
affirming trial court's denial of application for writ of habeas corpus after reviewing record for "unassigned fundamental error" when appellant failed to file brief despite being advised that failure to file brief would result in consideration of appeal on record alone
Summary of this case from Ex parte ParrishOpinion
NO. 03-14-00086-CR
08-19-2016
Sergio Delgado Dominguez, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-05-205935-A, HONORABLE KAREN SAGE, JUDGE PRESIDINGMEMORANDUM OPINION
In 2009, appellant Sergio Delgado Dominguez pleaded guilty to the misdemeanor offense of attempted possession of a controlled substance and was placed on deferred-adjudication community supervision for a period of two years. Subsequently, Dominguez filed an application for writ of habeas corpus, asserting that his trial counsel had rendered ineffective assistance by failing to advise him of the immigration consequences of his guilty plea. The district court denied relief, and this appeal followed.
See Padilla v. Kentucky, 559 U.S. 356, 374 (2010).
Appellant's retained counsel has failed to file a brief, despite being advised by this Court that failure to file a brief would result in consideration of the appeal on the record alone. Accordingly, the appeal has been submitted without briefs and we have reviewed the record for "unassigned fundamental error." Finding none, we affirm the district court's order denying Dominguez's application for writ of habeas corpus.
This Court has abated the appeal twice, first to obtain an amended certification of appellant's right to appeal, see Tex. R. App. P. 25.2(a)(2), and later for a hearing to determine whether appellant still wished to prosecute this appeal and whether counsel had abandoned the appeal. See Tex. R. App. P. 38.8(b)(2), (3). Following that hearing, the district court found that Dominguez had been removed from the United States, that he still wished to prosecute this appeal, and that counsel was "waiting on Appellant's response to continue to pursue this matter" but was "unable to reach Appellant due to his removal from the United States." The appeal was subsequently reinstated. Since that time, counsel has failed to file a brief, despite being ordered by this Court to do so. Under these circumstances, we conclude that the appropriate course of action is to consider the appeal without briefs. See Tex. R. App. P. 38.8(b)(4) (authorizing appellate court under appropriate circumstances to "consider the appeal without briefs, as justice may require"); see also Tex. Code Crim. Proc. art. 44.33(b) (providing that "[a]ppellant's failure to file his brief in the time prescribed shall not authorize a dismissal of the appeal"); Ates v. State, No. 03-15-00307-CR, 2016 Tex. App. LEXIS 6035, at *5 (Tex. App.—Austin June 8, 2016, no pet. h.) (mem. op., not designated for publication) (considering appeal on record alone when appellant was not entitled to appointed counsel); Johnson v. State, No. 14-06-00286-CR, 2008 Tex. App. LEXIS 1635, at *3-4 (Tex. App.—Houston [14th Dist.] Mar. 6, 2008, no pet.) (per curiam) (mem. op., not designated for publication) (considering appeal on record alone when appellant's retained counsel had failed to file brief and appeal had already been abated once for Rule 38.8 hearing).
See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994); Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus Christi 2008, no pet.); see also Mosqueda v. State, No. 03-12-00653-CR, 2013 Tex. App. LEXIS 7979, at *1-2 (Tex. App.—Austin June 28, 2013, no pet.) (mem. op., not designated for publication) (reviewing record for "unassigned fundamental error" when appellant could not be located and counsel had sought to abandon appeal).
We also note that Padilla v. Kentucky, the case which Dominguez claimed entitled him to relief in the court below, does not apply retroactively. See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013); State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Dominguez pleaded guilty prior to Padilla being decided. Consequently, Padilla does not apply here. See Chaidez, 113 S. Ct. at 1113; Guerrero, 400 S.W.3d at 588; De Los Reyes, 392 S.W.3d at 679. --------
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose, Justices Pemberton and Field Affirmed Filed: August 19, 2016 Do Not Publish