Opinion
13-22-00120-CR 13-22-00121-CR
06-01-2023
EX PARTE JOSE ANTONIO SANCHEZ-HERNANDEZ
Do not publish. TEX. R. APP. P. 47.2 (B).
On appeal from the County Court at Law No. 2 of Cameron County, Texas.
Before Chief Justice Contreras and Justices Silva and Pena
MEMORANDUM OPINION
CLARISSA SILVA JUSTICE
Appellant Jose Antonio Sanchez-Hernandez a/k/a Jose Antonio Hernandez Sanchez unsuccessfully sought post-conviction habeas corpus relief from two misdemeanor convictions: possession of marijuana and unlawful carrying of a weapon. See TEX. CODE CRIM. PROC. ANN. art. 11.09 (habeas application on misdemeanor conviction); TEX. HEALTH & SAFETY CODE ANN. § 481.121 (marijuana possession); TEX. PENAL CODE ANN. § 46.02 (unlawful carry).
On appeal, appellant contends-as he did in his habeas applications-that the judgments should be vacated because (1) at the time of his guilty pleas, he had no understanding of the English language, and this rendered his pleas of guilty involuntary; and (2) he is "actually innocent." The State, contesting only appellant's innocence claim, concedes that appellant's pleas were made involuntarily and asks that this Court reverse the convictions. Because we conclude the habeas court's orders of denial were not meritbased, we dismiss these appeals for want of jurisdiction.
I. Background
On or about August 8, 1992, following surveillance of a suspected cocaine operation, police executed a search warrant of a motel room in Brownsville, Texas. Officers seized marijuana, cocaine, and two semiautomatic handguns found in plain sight. Appellant, along with four other room occupants, was present at the time the warrant was executed. All those present denied ownership of the seized weapons and drugs, claimed to be undocumented non-U.S. citizens, and were subsequently arrested and charged. Appellant later pleaded guilty to two offenses relating to his arrest: unlawful carrying of a weapon in cause number 92-CCR-7304-B and possession of marijuana in cause number 92-CCR-7306-B. The trial court sentenced appellant to ninety days' confinement in the county jail in both causes and ordered the sentences to run concurrently.
Appellant had also been indicted for possession of a controlled substance, namely, cocaine. This charge was later dismissed by the State.
The applicant in Hargett was ordered to serve community supervision and filed his application pursuant to article V, § 8 of the Texas Constitution, which generally imbues district courts with "the power to issue writs necessary to enforce their jurisdiction." Tex. Const. art. V, § 8. As recognized in Ex parte Villanueva, the Legislature since enacted code of criminal procedure article § 11.072, which specifically pertains to habeas proceedings in community supervision cases. See Ex parte Villanueva, 252 S.W.3d 391, 395 (Tex. Crim. App. 2008). Under article 11.072, a writ of habeas corpus "issues by operation of law" whenever an application is filed. Id. (quoting Tex. Code Crim. Proc. Ann. art. 11.072, § 4(a)). And article 11.072 specifically provides that an applicant "may appeal under Article 44.02 and Rule 31, Texas Code of Appellate Procedure" if the trial judge "denied the application in whole or in part." Id. (quoting Tex. Code Crim. Proc. Ann. art. 11.072, § 8). Because the Legislature intended article 11.072 "to provide the exclusive means by which the district courts may exercise their original habeas jurisdiction" in community supervision cases, "the rule governing appellate review [set forth in Hargett] no longer applies" to such cases. Id. at 397. But this is not a community supervision case, and article 11.09 does not contain the same procedures as article 11.072. Therefore, Hargett remains applicable to this case.
Nearly thirty years later, on December 6, 2021, appellant filed his amended application for writ of habeas corpus in both causes pursuant to Article 11.09, alleging: (1) his pleas had been involuntary because he "did not have an adequate understanding of English[,] and the record does not show he was provided with a language interpreter"; and (2) he "is actually innocent." Affixed to appellant's habeas applications were copies of the clerk's records for his co-defendants' cases and for the underlying convictions he sought relief from in cause numbers 92-CCR-7304-B and 92-CCR-7306-B. The clerk's records for both cause numbers contained written waivers of counsel, waivers of jury trial, and pleas of guilty signed by appellant. No reporter's records relating to either cause number were attached, and no affidavits accompanied either of appellant's habeas applications.
At a hearing on appellant's habeas applications, the State notified the habeas court that it was "not contesting" either application. After accepting an announcement from appellant's habeas counsel, the habeas court declined to hear testimony from appellant and notified the parties that she would take the matter under advisement. The habeas court thereafter signed orders summarily denying appellant's habeas applications and these appeals followed.
The habeas court made no written findings of fact or conclusions of law.
I disagree with the majority to the extent it bases its conclusion (i.e., that the habeas court's ruling was jurisdictional and therefore not "on the merits") on the fact that appellant's pleadings did not specifically allege that he was suffering collateral legal consequences from his 1992 misdemeanor conviction. As the majority notes, the appellant's confinement or restraint is a jurisdictional requirement in habeas cases. See Ex parte Schmidt, 109 S.W.3d 480, 481-83 (Tex. Crim. App. 2003). In this case, appellant's counsel explained to the habeas court that appellant was in the process of applying for a visa. But because the State completely acquiesced to all of appellant's requests, appellant was never called upon to produce evidence establishing this element of his habeas claim. And crucially, there is no reason for this Court to infer that the habeas court denied appellant's application on the jurisdictional basis that he failed to show he was suffering from collateral legal consequences.
II. Jurisdiction
"[T]he writ of habeas corpus is an extraordinary remedy that is available only in the absence of an adequate remedy at law." Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017). Under Article 11.09, which exclusively concerns applications for writs of habeas corpus in misdemeanor proceedings involving confinement, see TEX. CODE CRIM. PROC. ANN. art. 11.09, an applicant bears the burden of proving, by a preponderance of the evidence, facts which show a cognizable irregularity and harm that would entitle him to relief. Ex parte Lalonde, 570 S.W.3d 716, 725 (Tex. Crim. App. 2019); Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013). Imbued in this obligation is a requirement that is both elemental and jurisdictional: an applicant must demonstrate that he is confined or that he remains subject to collateral legal consequences resulting from his prior conviction. See Ex parte Schmidt, 109 S.W.3d 480, 481-83 (Tex. Crim. App. 2003) (en banc); Ex parte Ali, 368 S.W.3d 827, 831 (Tex. App.-Austin 2012, pet. ref'd) (noting that courts broadly define the "[t]he terms 'confinement' and 'restraint,' for habeas corpus purposes" and collecting cases illustrating collateral legal consequences resulting from prior convictions); see also Ex parte Ferrara, No. 13-21-00101-CR, 2022 WL 2348529, at *1 (Tex. App.-Corpus Christi-Edinburg June 30, 2022, no pet.) (mem. op., not designated for publication).
Significant here, the habeas court may deny an Article 11.09 habeas application without consideration of the application's merits. See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008); see also Ex parte Paselk, No. 06-14-00099-CR, 2014 WL 4922981, at *3 (Tex. App.-Texarkana Oct. 1, 2014, pet. ref'd) (mem. op., not designated for publication); Ex parte Rodriguez, No. 13-09-00645-CR, 2010 WL 3310210, at *2 (Tex. App.-Corpus Christi-Edinburg Aug. 23, 2010, no pet.) (mem. op., not designated for publication). When a court issues an order of denial without having considered the merits, "there is no right to appeal," and "[i]n such cases, the applicant has two remedies: first, to present the application to another trial judge with jurisdiction; or second, to file an application for a writ of mandamus." Ex parte Villanueva, 252 S.W.3d at 394; see also Ex parte Budow, No. 05-18-01168-CR, 2018 WL 6322176, at *2 (Tex. App.-Dallas Dec. 4, 2018, no pet.) (mem. op., not designated for publication) ("In an 11.09 writ proceeding, when a trial court refuses to entertain the merits of a writ application, there is no right to appeal."); Ex parte Herod, No. 01-15-00494-CR, 2016 WL 1470079, at *1, *4 (Tex. App.-Houston [1st Dist.] Apr. 14, 2016, no pet.) (per curiam) (mem. op., not designated for publication) (dismissing for want of jurisdiction where appellant's 11.09 application was denied without consideration of the merits); Ex parte Paselk, 2014 WL 4922981, at *3 (same). We review the entire appellate record to make the determination of whether a court's denial is merit-based. See Ex parte Bowers, 36 S.W.3d 926, 926-27 (Tex. App.-Dallas 2001, pet. ref'd); see also Ex parte Nicholson, No. 01-20-00751-CR, 2021 WL 497240, at *3 (Tex. App.-Houston [1st Dist.] Feb. 11, 2021, no pet.) (mem. op., not designated for publication); Ex parte Rodriguez, 2010 WL 3310210, at *2.
The parties implicitly advocate for an affirmative merit-based finding. Having reviewed the entire appellate record, we conclude otherwise. See Ex parte Bowers, 36 S.W.3d at 926-27; see also Ex parte Rodriguez, 2010 WL 3310210, at *2. Pursuant to Article 11.09, the impetus was on appellant to establish his entitlement to habeas relief by showing that he is either confined or remains subject to collateral legal consequences resulting from his prior conviction. See TEX. CODE CRIM. PROC. ANN. ART. 11.09; Ex parte Schmidt, 109 S.W.3d at 481-83. Yet, the parties agree that appellant is not presently confined, and no allegations or evidence of collateral consequences exist in either of appellant's habeas applications or attachments from which the habeas court could issue a merit-based denial following a finding of habeas jurisdiction. See Ex parte Schmidt, 109 S.W.3d at 481-83; see also Ex parte Carbajal, No. 08-19-00238-CR, 2021 WL 1050059, at *4 (Tex. App.-El Paso Mar. 19, 2021, no pet.) (mem. op., not designated for publication) (dismissing for want of jurisdiction and concluding that a habeas court's order of denial was not merit-based where appellant had failed to show restraint, a jurisdictional prerequisite). Moreover, though the habeas court held a hearing, it invited no testimony on the merits of appellant's applications, and no exhibits were tendered for its consideration. See Ex parte Bowers, 36 S.W.3d at 926-27; see also Ex parte Carbajal, 2021 WL 1050059, at *4 (finding that the existence of a hearing on appellant's habeas application was not ipso facto determinative of whether a denial order was merit-based). Most significant, however, is that the habeas court's orders contain no factual or legal findings and instead summarily deny appellant's applications without addressing the basis for its denial. See Ex parte Bowers, 36 S.W.3d at 926-27; see also Ex parte Rodriguez, 2010 WL 3310210, at *2. Even assuming it "is likely that the [habeas] court's decision not to issue the writ was based, at least in part, on a determination that appellant's claims lacked merit, that alone does not entitle appellant to an appeal." See Ex parte Pool, 71 S.W.3d 462, 465 (Tex. App.-Tyler 2002, no pet.); see also Ex parte Rodriguez, 2010 WL 3310210, at *2 (observing the same).
The parties jointly request that we reverse the habeas court and render orders granting appellant's requested relief, and neither party questions our jurisdictional authority to do so. Such action by this Court would be necessarily predicated on a finding that merit-based orders are before us.
A trial court's certification of a defendant's right to appeal cannot turn an otherwise non-appealable order into one that is appealable. See Chavez v. State, 183 S.W.3d 675, 679 (Tex. Crim. App. 2006) ("[The] Rules of Appellate Procedure do not establish appellate jurisdiction, but rather set out procedures which must be followed to invoke a court's jurisdiction over a particular appeal"); see also Sarringar v. State, No. 02-22-00070-CR, 2022 WL 2526941, at *2 (Tex. App.-Fort Worth July 7, 2022, no pet.) (mem. op., not designated for publication). However, the fact that the habeas court certified appellant's right to appeal in this case is an indication of the court's intent to dispose of the habeas application on its merits.
At the habeas hearing, appellant's counsel informed the habeas court that appellant sought habeas relief because he was "in the process of applying for a [v]isa"-information appellant's habeas counsel stated that he had obtained from appellant's immigration counsel. However, counsel did not explicitly state that appellant's misdemeanor convictions would negatively affect that application. In any event, we are unable to consider appellant's counsel's statements as evidence of collateral consequences, and this information appears nowhere else in the record. See State v. Lopez, 631 S.W.3d 107, 115 (Tex. Crim. App. 2021) (observing that unsworn statements by counsel are not evidence); State v. Guerrero, 400 S.W.3d 576, 584-85 (Tex. Crim. App. 2013) (concluding the same in a habeas proceeding); see also State v. Torres, No. 13-19-00253-CR, 2020 WL 5051368, at *3 (Tex. App.-Corpus Christi-Edinburg Aug. 20, 2020, no pet.) (mem. op., not designated for publication) ("We also note that Torres's writ counsel did not represent Torres at the plea hearing and had no personal knowledge of the circumstances of the plea; therefore, any representations he made during the writ hearing were not part of the evidentiary record and could not serve as the basis for the trial court's ruling.").
Consequently, we conclude that the habeas court's orders of denial were not meritbased, and therefore, we are without appellate jurisdiction and must dismiss these appeals. See Ex parte Villanueva, 252 S.W.3d at 394; see also Ex parte Herod, 2016 WL 1470079, at *4 (dismissing for want of jurisdiction where the habeas court did not rule on the merits of the appellant's habeas Article 11.09 application); Ex parte Paselk, 2014 WL 4922981, at *3 (same); Ex parte Rodriguez, 2010 WL 3310210, at *2 (same). As a result of our disposition, appellant is not precluded from "present[ing] [his] application to another trial judge with jurisdiction[,]" or "fil[ing] an application for a writ of mandamus." See Ex parte Villanueva, 252 S.W.3d at 394; see also TEX. CODE CRIM. PROC. ANN. art. 11.09.
III. Conclusion
We dismiss these appeals for want of jurisdiction.
Dissenting Memorandum Opinion by Chief Justice Contreras.
DISSENTING MEMORANDUM OPINION
The majority concludes that the denial of appellant's habeas corpus application was not merits-based. The result of this ruling is that appellant is deprived of appellate review of the habeas court's decision, and he is deprived of the relief which all parties to the proceeding agree he is entitled to. Because the record establishes that the habeas court's ruling was merits-based, I would conclude that we have jurisdiction over the appeal. And in exercising that jurisdiction, I would further conclude that the trial court erred by denying the relief requested in appellant's application.
As the majority correctly notes, we lack jurisdiction over an appeal of a habeas corpus ruling which is not based on the merits of the application. See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008). To determine whether an order can be appealed, we review the order and the entire record. See Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.-Dallas 2001, pet. ref'd) (examining whether an order denying an application for writ of habeas corpus was on the merits); see also Ex parte Lee, No. 11-18-00018-CR, 2018 WL 3151530, at *1 (Tex. App.-Eastland June 28, 2018, no pet.) (mem. op., not designated for publication) ("Although the trial court did not hold a hearing, it appears from the language of the order that the trial court ruled on the merits of Lee's claims."); Purchase v. State, 176 S.W.3d 406, 407 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (examining the record to determine if the trial court considered the merits); Ex parte Okere, 56 S.W.3d 846, 851 (Tex. App.-Fort Worth 2001, pet. ref'd) (same).
The case law does not define "on the merits," but Black's Law Dictionary defines "merits" as "[t]he elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp[ecially] of procedure." Merits, BLACK'S LAW DICTIONARY (2d. ed. 2001). Usually, a ruling is described as "on the merits" to distinguish it from an order based on alleged jurisdictional defects. See, e.g., Thomas v. Long, 207 S.W.3d 334, 339-340 (Tex. 2006) ("Because a trial court cannot reach the merits of a case without subject matter jurisdiction, a trial court that rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack has implicitly denied the jurisdictional challenge." (internal citation omitted)); Hause v. LG Chem, Ltd., 658 S.W.3d 714, 731 (Tex. App.-El Paso 2022, pet. filed) (separating appellee's "jurisdictional arguments from its arguments on the merits").
The term "on the merits" has a specialized meaning in the context of habeas corpus proceedings. This stems from the fact that "there is a distinction between the issuance of a writ of habeas corpus and the granting of relief on the claims set forth in an application for that writ." Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991). The code of criminal procedure provides that "[t]he Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law." TEX. CODE CRIM. PROC. ANN. art. 11.05. But the code also “prescribe[s] that the legality of particular restraints be determined only by certain courts, depending upon a variety of factors, including the grade of the offense charged, and the stage of the criminal proceedings. It has done this by fixing the county or court to which certain writs must be made returnable." Ex parte Renier, 734 S.W.2d 349, 356 (Tex. Crim. App. 1987) (Teague, J., dissenting). Only "[t]he court of return, not the issuing court, has authority to grant or deny relief under the writ." Id.
In Ex parte Hargett, the Texas Court of Criminal Appeals held that an order denying habeas relief was "on the merits" because the court "went beyond merely deciding not to issue the writ of habeas corpus." 819 S.W.2d at 869. It was "not a case where the district court simply refused to hear the application as presented." Id. It was not a case where "a judge refuses to issue the requested writ of habeas corpus or denies an applicant the requested hearing on the merits of his claim." Id. at 868. Hargett demonstrates that, in habeas proceedings, "on the merits" generally refers to a consideration of the substantive claims for relief made in the applicant's pleadings, as opposed to the preliminary determination of whether to issue the writ in the first place.1 See id.; Ex parte Bowers, 36 S.W.3d at 927 ("An applicant cannot appeal from a trial court's refusal to issue or grant a writ of habeas corpus, but may appeal the denial of relief on the merits of the application."); see also Ex parte Tyler, No. 2-02-267-CR, 2003 WL 300485, at *1 (Tex. App.-Fort Worth Feb. 13, 2003, no pet.) (mem. op., not designated for publication) ("Because the trial court's order indicates that the court examined the applicable law and applied it to Tyler's complaint, it appears the trial court denied the requested relief based on its merits, as opposed to denying the writ.").
In this case, it is undisputed that the habeas court was the proper "court of return" under the applicable law. See TEX. CODE CRIM. PROC. ANN. 11.09. Accordingly, it is not reasonable to construe the trial court's ruling as a disposition based on lack of jurisdiction to grant relief under the statute.2
Moreover, the habeas court held a hearing on appellant's application on February 9, 2022. Appellant was sworn in to testify at the beginning of the hearing. Appellant's counsel informed the court that he filed the application because appellant "is in the process of applying for a [v]isa." The prosecutor informed the court that "the State is not contesting these motions" and "we just have no reason to object to this filing and the request that they're making." The trial court stated she would take the matter under advisement. When appellant's counsel asked whether the court "want[ed] to hear from my client," the court replied, "No, that's fine." In its April 1, 2022 written order denying appellant's application, the court noted that the matter was heard and "the parties[] made their arguments," but it did not specify the reason for the denial. Nevertheless, the order explicitly stated that it is appealable. And the court certified appellant's right to appeal. See TEX. R. APP. P. 25.2(d).
Based on my review of the entire record and the order, I would conclude that the order was "on the merits" and that we have jurisdiction over the appeal.3 In its brief on appeal, the State "asks this Court to find that the Appellant's pro se plea of guilty was involuntary due to the lack of an interpreter at the plea hearing, and to grant a new trial as requested by Appellant." Accordingly, in light of the parties' agreement, I would further conclude that the trial court erred in denying the requested relief.
In an appeal from the denial of a habeas corpus application, "[t]he sole purpose of the appeal is to do substantial justice to the parties." TEX. R. APP. P. 31.2. Because the majority's conclusion is contrary to this directive, I respectfully dissent.
DORI CONTRERAS Chief Justice