Opinion
NO. 14-20-00548-CR
03-02-2021
The STATE of Texas, Appellant v. Leonardo Fabio GARCIA, Appellee
Melissa H. Stryker, Houston, for Appellant. Elaine Morley, Sugarland, for Appellee.
Melissa H. Stryker, Houston, for Appellant.
Elaine Morley, Sugarland, for Appellee.
Panel consists of Justices Bourliot, Zimmerer, and Spain.
Jerry Zimmerer, Justice
The dispositive issues in this appeal are (1) whether Code of Criminal Procedure article 44.01 authorizes the State to appeal the grant of relief to an applicant for a writ of habeas corpus filed pursuant to article 11.09 and if not, (2) whether a grant of relief to an applicant for a writ of habeas corpus under article 11.09 can be fairly characterized as an unfavorable ruling on a ruling from which the State would otherwise have the right to appeal. Tex. Code Crim. Proc. Ann. arts. 11.09, 44.01.
Appellee Leonardo Fabio Garcia, who is not a United States citizen, was convicted on a plea of guilty to the offense of misdemeanor theft on November 19, 1998. Appellee subsequently pleaded guilty to another misdemeanor theft charge in County Criminal Court at Law No. 8 on May 15, 2007. The trial court assessed punishment at 10 days in the Harris County Jail with credit for three days' time served. Appellee did not appeal the 2007 conviction.
Appellee raised involuntariness of both pleas in his application for writ of habeas corpus in the trial court. The 1998 conviction was not considered by the trial court because only the 2007 conviction was before the County Criminal Court at Law No. 8. In this opinion, we address the 2007 conviction.
On November 26, 2019 appellee received notice from the United States Department of Homeland Security that he was subject to deportation as a result of his two prior misdemeanor theft convictions. See 8 U.S.C. § 1227(a)(2)(A)(ii) (providing for deportation of "[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude."). On May 1, 2020, appellee filed an application for writ of habeas corpus pursuant to article 11.09 of the Code of Criminal Procedure in which he alleged that his guilty plea was involuntary because he was not advised of the immigration consequences of his plea. After conducting a hearing the trial court granted habeas relief and vacated the judgment in the 2007 conviction. The State attempted to appeal the trial court's decision pursuant to article 44.01 of the Code of Criminal Procedure. Appellee challenges the State's right to appeal. For the reasons set forth below, we dismiss the State's appeal for want of jurisdiction.
JURISDICTION
As a reviewing court, we have the duty to make an initial determination of whether the court has jurisdiction to resolve the matter presented before it. SeeState v. Roberts , 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds byState v. Medrano , 67 S.W.3d 892, 901–03 (Tex. Crim. App. 2002). The right to appeal is a right conferred and defined by statute. SeeMarin v. State , 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). This is particularly important when the appealing party, the State, has a limited right of appeal. See Tex. Code Crim. Proc. Ann. art. 44.01 (setting forth when the State may appeal).
Ordinarily, a respondent in a habeas action, such as the State, cannot appeal. Board of Pardons & Paroles ex rel. Keene v. Ct. of App. of Tx., Eighth Dist. , 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding) ; In re Tex. Bd. of Pardons & Paroles , 495 S.W.3d 554, 558 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding). As an exception to this general rule, article 44.01(k) grants the State the right to appeal an order granting relief to an applicant for writ of habeas corpus under article 11.072 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.01(k). Appellee in this case filed his application for writ of habeas corpus challenging his 2007 conviction under article 11.09 of the Code of Criminal Procedure.
Article 11.09 of the Code of Criminal Procedure allows a party confined on a misdemeanor charge to apply for habeas relief to "the county judge of the county in which the misdemeanor [was] charged to have been committed." Tex. Code Crim. Proc. Ann. art. 11.09. The Court of Criminal Appeals has held that the term "confined" in Article 11.09 does not require actual current confinement and that the county courts at law have habeas jurisdiction if a person is merely restrained due to the conviction. Ex parte Schmidt , 109 S.W.3d 480, 482–83 (Tex. Crim. App. 2003). This court has applied the confinement standard in the immigration context concluding that a trial court has jurisdiction over an article 11.09 habeas despite the fact that the immigrant was not then in the custody of the State of Texas because pending deportation was based solely on the immigrant's misdemeanor convictions. Phuong Anh Thi Le v. State , 300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Appellee's habeas corpus application collaterally attacked appellee's two prior misdemeanor theft convictions: (1) appellee's order of deferred adjudication community supervision for Class B misdemeanor theft, dated November 19, 1998; and (2) appellee's final conviction for Class B misdemeanor theft by check, dated May 15, 2007. The portion of appellee's habeas corpus application that challenged his 1998 order of deferred adjudication challenged the viability of that conviction under articles 11.072 and 11.09 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.072 ("establish[ing] the procedures for an application for a 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."); Tex. Code Crim. Proc. Ann. art. 11.09 (establishing the procedure for habeas corpus proceedings when "a person is confined on a charge of misdemeanor[.]"). The portion of appellee's habeas corpus application that challenged his 2007 conviction for theft by check, though, contested the viability of that conviction only under article 11.09 because appellee was sentenced to jail rather than receiving community supervision. Compare Tex. Code Crim. Proc. Ann. art. 11.072 with Tex. Code Crim. Proc. Ann. art. 11.09. The trial court's order granting relief and vacating the court's judgment of conviction and sentence in the 2007 conviction does so only under the trial court's authority under article 11.09.
Article 44.01 of the Code of Criminal Procedure provides the circumstances under which the State may appeal in a criminal case. See Tex. Code Crim. Proc. Ann. art. 44.01. Article 44.01(k) specifically entitles the State "to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072." But neither subsection (k), nor any other provision in Article 44.01, explicitly provides the State the right to appeal an order granting relief to an applicant for a writ of habeas corpus filed under article 11.09. See Tex. Code Crim. Proc. Ann. art. 44.01. The State, however, may appeal an unfavorable ruling on an applicant's habeas corpus application when the State would otherwise have the right to appeal the order. See e.g.,State v. Young , 810 S.W.2d 221, 222–23 (Tex. Crim. App. 1991) (holding the appellate court had jurisdiction over the State's appeal of an order granting habeas corpus relief that had the effect of dismissing the indictments pending against the appellees because, under Article 44.01(a)(1), the State is entitled to appeal order that dismisses an indictment).
Here, the State asserts that the trial court's judgment granting habeas corpus relief and vacating the trial court's prior judgment "had the effect of granting a new trial," which the State may appeal pursuant to article 44.01(a)(3). In the alternative, the State asserts the trial court's order granting habeas corpus relief "was tantamount to an order granting a motion to arrest the trial court's judgment," which the State may appeal pursuant to article 44.01(a)(2). We address the State's assertions in turn.
I. Motion for New Trial
The State asserts that the trial court's grant of appellee's application in this case is equivalent to the grant of a new trial, and because the State has the right to appeal the grant of a new trial under article 44.01, the State may appeal the habeas ruling in this case. A new trial, contemplated by subsection (a)(3), is "the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt." Tex. R. App. P. 21.1(a) ; see alsoState v. Evans , 843 S.W.2d 576, 577 (Tex. Crim. App. 1992). In this case, however, the trial court did not grant a new trial. The court vacated the conviction and ordered "applicant discharged and released without delay."
Relying on State v. Garcia , No. 13-11-00689-CR, 2012 WL 7849303, at *3–4 (Tex. App.—Corpus Christi-Edinburg Dec. 13, 2012, no pet.) (mem. op., not designated for publication), the State argues that the trial court's grant of relief pursuant to article 11.09 was the equivalent of the grant of a motion for new trial. Although we are not bound by an unpublished decision from another court of appeals, see Tex. R. App. P. 47.7(a), we address Garcia because the State relies on its holding for jurisdiction in this appeal.
In Garcia , the trial court granted habeas corpus relief because "it was unclear whether Garcia made his guilty plea knowingly." 2012 WL 7849303 at *4. Garcia, like appellee, in this case, was an undocumented immigrant subject to deportation due to a previous guilty plea to a misdemeanor drug offense. Id. at *1. Garcia filed an application for writ of habeas corpus pursuant to article 11.09 of the Code of Criminal Procedure in which he alleged ineffective assistance of counsel because his lawyer in the misdemeanor drug case failed to advise him of the possible immigration consequences of his guilty plea. Id. The trial court granted habeas relief finding that the facts of the case established doubt as to whether Garcia understood the consequences of his plea.Id. at *4. The State appealed the grant of habeas corpus relief. Id. In addressing its jurisdiction over the State's appeal, the Thirteenth Court of Appeals held the trial court's ruling was the functional equivalent of the grant of a motion for new trial. Id. As such, the court held it had jurisdiction over the State's appeal. Id.
While not applicable to our jurisdictional analysis, we note that the appellee in Garcia pleaded guilty on September 7, 2010 after the United States Supreme Court decided Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that appellate counsel engages in ineffective assistance if they fail to advise a defendant of the immigration consequences of a guilty plea. Id. at 368–69, 130 S.Ct. 1473. Appellee in today's case pleaded guilty in 2007 prior to the Court's decision in Padilla.
--------
We decline the State's invitation to follow the Thirteenth Court's unpublished opinion in Garcia in this case. In Garcia , the court held, "Since the trial court order return[s] the case to the posture it had been in before the plea was accepted, the trial court order grant[s] a new trial, irrespective of the label or terms used in the motion or order." Garcia , 2012 WL 7849303, at *3 (quoting Evans , 843 S.W.2d at 577 ). Here, unlike the trial court in Garcia , the trial court did not make specific findings of fact, nor did the court's order grant a new trial. The trial court vacated the conviction and discharged appellee. The record does not reflect that the trial court ordered a rehearing in this case.
We do not agree that the trial court's order in this case may be appealed by the State as the functional equivalent of a motion for new trial. The Legislature specifically allows the State to appeal an order granting relief to an applicant for a writ of habeas corpus filed pursuant to article 11.072 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 44.01(k). It would be a simple enough matter for the Legislature to amend Article 44.01 to authorize the State to appeal the grant of relief to an applicant for a writ of habeas corpus filed pursuant to article 11.09, but the Legislature has not done so. The Legislature chose to single out grants of 11.072 habeas-corpus relief when granting the State the right to appeal. We are not allowed to rewrite the statute in the guise of judicial construction. See Tex. Const. article II, § 1 ; Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
II. Motion to Arrest Judgment
The State further contends that the trial court's order granting appellee habeas-corpus relief was the functional equivalent of a motion in arrest of judgment, the grant of which may be appealed by the State. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(2). A motion in arrest of judgment is defined as a defendant's oral or written suggestion that, for reasons stated in the motion, the judgment rendered against the defendant was contrary to law. Tex. R. App. P. 22.1. A motion in arrest of judgment is essentially a post-trial motion to quash the indictment and must be based on the " ‘face of the record’—the indictment, plea, verdict, and sentence." State v. Savage , 905 S.W.2d 268, 269 (Tex. App.—San Antonio 1994), aff'd , 933 S.W.2d 497 (Tex. Crim. App. 1996) (citing United States v. Sisson , 399 U.S. 267, 280–82, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970) ). It cannot be grounded on proof offered at trial. Id.
In this case, appellee's application for writ of habeas corpus alleged ineffective assistance because his attorney failed to advise him of the immigration consequences of his guilty plea. SeePadilla v. Kentucky , 559 U.S. 356, 369–72, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Appellee's claim of ineffective assistance of counsel required testimony from appellee and an affidavit from the attorney who represented appellee in the 2007 plea. Because appellee's claim of ineffective assistance of counsel was not based on the face of the record, appellee's application for writ of habeas corpus cannot be considered the equivalent of a motion in arrest of judgment. See Tex. R. App. P. 22.2 ; Smith v. State , 15 S.W.3d 294, 298 (Tex. App.—Dallas 2000, no pet.) citing State v. Borden , 787 S.W.2d 109, 110–11 (Tex. App.—Houston [14th Dist.] 1990, no pet.) ("[T]he rules governing the use of the motion in arrest of judgment have very serious restrictions.").
Because the trial court's grant of relief to an applicant for a writ of habeas corpus under article 11.09 cannot be fairly characterized as an unfavorable ruling on a ruling from which the State would otherwise have the right to appeal the order, article 44.01 does not authorize the State's appeal in this cause. We are without jurisdiction to consider the issues raised by the State.
CONCLUSION
Having determined that the State's appeal does not properly invoke the jurisdiction of the court, we dismiss the appeal for want of jurisdiction.