                                  MEMORANDUM OPINION
                                         No. 04-10-00510-CR

                                      EX PARTE Alvaro PENA

                      From the 229th Judicial District Court, Starr County, Texas
                                    Trial Court No. 1993-CR-228
                          Honorable Alex William Gabert, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 29, 2010

AFFIRMED

           Alvaro Pena appeals from the trial court’s denial of relief requested in a second

application for a writ of habeas corpus. We affirm the trial court’s order.

                                              BACKGROUND

           Pena was convicted of aggravated possession of cocaine in 1994, and sentenced to ten

years in prison.       The trial court suspended the sentence and placed Pena on community

supervision for ten years. In 1998, the trial court granted Pena’s motion for early termination of

his community supervision.

           In 2007, Pena filed an initial application for a writ of habeas corpus under section 11.072

of the Texas Code of Criminal Procedure, alleging his trial counsel rendered ineffective
                                                                                      04-10-00510-CR


assistance. The trial court granted relief, but the decision was reversed by this court. See Ex

parte Pena, No. 04-07-00476-CR, 2007 WL 4116121 (Tex. App.—San Antonio Nov. 21, 2007,

no pet.) (mem. op., not designated for publication). In April 2009, Pena filed a subsequent

application for a writ of habeas corpus, attacking the validity of his conviction on the ground of

“external juror influence.” After holding a hearing, the trial court signed an order stating it had

considered the parties’ evidence, arguments, and authority, but determined from the face of the

application that Pena was manifestly entitled to no relief. The court denied the application as

frivolous. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 7(a) (West 2005) (“If the court

determines from the face of an application or documents attached to the application that the

applicant is manifestly entitled to no relief, the court shall enter a written order denying the

application as frivolous.”).

                                            DISCUSSION

       We review the trial court’s ruling in a habeas matter for abuse of discretion. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied, 549 U.S. 1052 (2006). The parties

agree Pena was required to comply with section 9 of article 11.072, relating to subsequent

applications. The parts of that section relevant to the disposition of this appeal provide:

       (a) If a subsequent application for a writ of habeas corpus is filed after final
       disposition of an initial application under this article, a court may not consider the
       merits of or grant relief based on the subsequent application unless the application
       contains sufficient specific facts establishing that the current claims and issues
       have not been and could not have been presented previously in an original
       application or in a previously considered application filed under this article
       because the factual or legal basis for the claim was unavailable on the date the
       applicant filed the previous application.

       ...

       (c) For purposes of Subsection (a), a factual basis of a claim is unavailable on or
       before a date described by that subsection if the factual basis was not
       ascertainable through the exercise of reasonable diligence on or before that date.

                                                -2-
                                                                                               04-10-00510-CR




TEX. CODE CRIM. PROC. ANN. art. 11.072 § 9(a), (c) (West 2005). Pena was required to allege in

his application, and prove by a preponderance of the evidence, that his claim that external

influence upon a juror violated his right to a fair trial was not ascertainable through the exercise

of reasonable diligence when Pena filed his initial application. Id.; Ex parte Madding, 70

S.W.3d 131, 133-34 (Tex. Crim. App. 2002).

        To satisfy the statutory requirement, Pena stated in his application that when he filed his

original application, “he had not learned that he had been deprived of a fair trial and that outside

influence had prejudicially affected the jurors [sic] decision to convict.” Pena averred that the

factual basis of his claim only became available to him in March 2009, when his investigator

obtained statements from four jurors. Pena did not allege any other facts to explain why the

factual basis of the claim could not have been ascertained “through the exercise of reasonable

diligence” when the first application was filed.

        In Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000), the Court of Criminal

Appeals considered the meaning of the phrase “reasonable diligence” in section 4 of article 11.07

of the Texas Code of Criminal Procedure. 1 Lemke filed a subsequent application under section

11.07, alleging his trial counsel had not conveyed plea offers to him made before the trial.

Lemke, 13 S.W.3d at 793. The court held Lemke met his burden to show he had exercised

reasonable diligence by testifying his attorney had repeatedly told him there were no plea offers

on the table:

        We hold applicant exercised “reasonable diligence” by making several inquiries
        of his lawyer as to the existence of plea bargain offers by the State. Applicant was

        1
            Article 11.07 governs applications for writs of habeas corpus challenging felony convictions when
community supervision was not granted. The language regarding the requirements of subsequent writ applications
in article 11.07 is identical to that in article 11.072. Compare TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 with
TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9.


                                                     -3-
                                                                                     04-10-00510-CR


       not required to query the district attorney about the existence of a [sic] plea
       bargain offers when he had been assured by his attorney that there were none.
       Given that applicant had previously asked his attorney about the existence of plea
       bargain offers, was told that none were made, and applicant otherwise did not
       doubt his attorney’s representations, applicant satisfied section 4’s requirement of
       “reasonable diligence.”

Id. at 794-95 (footnote omitted). The court also stated that reasonable diligence “suggests at

least some kind of inquiry has been made into the matter at issue.” Id. at 794.

       The Court of Criminal Appeals also considered the issue of reasonable diligence in

Madding. 70 S.W.3d at 133. Madding’s original application, alleging his trial counsel was

ineffective, was denied. Id. He filed a subsequent application, alleging his rights under the

double jeopardy clause were violated because the judgment ordered his sentence to be served

consecutive to another sentence when the trial judge had pronounced in open court that the

sentences would be served concurrently. Id. at 132. The court noted there was no evidence

Madding ever received a copy of the judgment, the prison records did not reflect the cumulation

order, Madding asserted in his first application that his trial records were unavailable to him, and

Madding complained of this fact several times, as reflected by letters in his file. Id. at 133 n.4.

The court held Madding had demonstrated by a preponderance of the evidence that the factual

basis for his claim was unavailable when he filed his original application. Id. at 133.

       Pena did not allege in his application that he made any inquiry into the issue of juror

misconduct before filing his original application. Nor did he make any factual assertions as to

why he was prevented from conducting the same investigation that resulted in the juror affidavits

attached to his current application at the time he filed his original application. Pena failed to

allege any facts that would support a finding that the factual basis for his claim was unavailable




                                                -4-
                                                                                                     04-10-00510-CR


to him when the previous writ was filed. Accordingly, the trial court did not abuse its discretion

in determining from the face of the application that Pena was manifestly entitled to no relief. 2

                                                   CONCLUSION

         The order of the trial court is affirmed.


                                                           Steven C. Hilbig, Justice

Do not publish




         2
          Although the trial court conducted a hearing on Pena’s application, the court stated in its order that it
determined from the face of the application that Pena was not entitled to relief. Even if we were to consider the
evidence presented at the hearing, Pena failed to demonstrate by a preponderance of the evidence that he exercised
reasonable diligence to discover the factual basis of his claim before filing the original application. See Madding, 70
S.W.3d at 133-34. Pena did not hire an investigator until after his previous writ was reversed by this court. He
admitted he made no effort to locate any of the jurors who served on his case before hiring the investigator. The
investigator testified she was hired in December 2008, and it was her idea to contact the jurors.

                                                         -5-
