                               NUMBER 13-11-00135-CR

                                 COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG

                              EX PARTE SANTOS GONZALES


                           On appeal from the 214th District Court
                                 of Nueces County, Texas.


                               MEMORANDUM OPINION
                     Before Justices Rodriguez, Vela, and Perkes
                      Memorandum Opinion by Justice Perkes

          Appellant, Santos Gonzales, appeals from the trial court’s order denying him relief on

his application for writ of habeas corpus filed pursuant to article 11.072 of the Texas Code of

Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (Vernon 2011). By his

sole issue, appellant argues the trial court abused its discretion in denying him relief. We

affirm.

                      I.      FACTUAL AND PROCEDURAL BACKGROUND

          On April 2, 2009, appellant was indicted with the charge of continuous sexual abuse

of a young child, a first degree felony carrying a penalty of a minimum of twenty-five years of
imprisonment. See TEX. PENAL CODE. ANN. § 21.02 (West 2011). On November, 16,

2009, prior to appellant entering a plea of guilty, the child victim of the alleged sexual assault

freely gave a recantation. On November 30, 2009, pursuant to a plea bargain, appellant

entered a plea of guilty to the felony offenses of aggravated sexual assault of a child and

indecency with a child. See id. §§ 21.11, 22.021. The trial court accepted the guilty plea,

deferred a finding of guilt, sentenced appellant to 180 days in jail and placed appellant on

community supervision for a period of ten years and levied various fines totaling $5,255.00.

       On January 11, 2011, after appellant had served his 180 day jail term, appellant filed

an application for writ of habeas corpus pursuant to article 11.072 of the Texas Code of

Criminal Procedure, alleging that he received ineffective assistance of counsel. See TEX.

CODE CRIM. PROC. ANN. art. 11.072 (Vernon 2011). In the habeas application, appellant

argues that, because his trial counsel provided him with erroneous, incorrect, and

misleading advice, his plea was neither voluntary nor knowingly and intelligently entered.

       On February 8, 2011 the State filed a written response arguing that appellant’s writ

should be denied because he failed to prove his counsel’s performance was deficient, the

record as a whole shows a voluntary plea, and no newly discovered evidence was

presented. Attached to the State’s response was a sworn affidavit from appellant’s trial

counsel denying the allegations that his representation fell below an objective standard of

reasonableness. Appellant’s counsel asserted that he had numerous conversations with

appellant concerning his case, the effects of his plea and the potential punishment stemming

from such a plea. Appellant’s counsel also asserted that appellant was aware of the effects

of the victim’s recantation, that he was willing to try the case, and that appellant alone made

the decision regarding the plea bargain agreement. The State also attached to its response
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the order of deferred adjudication, the trial court’s admonishments to appellant, and

appellant’s signed judicial confession.

       On February 10, 2012, the trial court judge, Jose Longoria, who had previously

presided over appellant’s earlier guilty plea, signed an order denying relief on appellant’s

application for habeas corpus, and found the assertions contained in the State’s answer to

be correct, and the habeas corpus application frivolous.

                                          II.   ANALYSIS

       In his sole issue, appellant contends that the trial court abused its discretion by not

conducting an evidentiary hearing on his application for writ of habeas corpus.               We

disagree.

       We review a trial court’s decision to grant or deny an evidentiary hearing on an article

11.072 habeas corpus application under an abuse of discretion standard. See Ex parte

Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth 2005, no pet.) (stating that no

evidentiary hearing is required under article 11.072). In order to prevail on a writ of habeas

corpus, the applicant must prove his allegations by a preponderance of the evidence. Ex

parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995), Ex parte Adams, 768 S.W.2d

281, 287–88 (Tex. Crim. App. 1989).

       Article 11.072 of the Texas Code of Criminal Procedure provides the process for

habeas corpus applications wherein the applicant is seeking relief from an order or judgment

of conviction ordering community supervision. TEX. CODE CRIM. PROC. ANN. art. 11.072, §

1; Cummins, 169 S.W.3d at 756. The relevant statutory procedures provide:

        Sec. 6. (a) Not later than the 60th day after the day on which the state's
       answer is filed, the trial court shall enter a written order granting or denying the
       relief sought in the application.
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       (b) In making its determination, the court may order affidavits, depositions,
       interrogatories or a hearing, and may rely on the court's personal recollection.

       Sec. 7. (a) If the court determines from the face of the 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. In any other case, the court shall enter a written order including
       findings of fact and conclusions of law. The court may require the prevailing
       party to submit a proposed order.

TEX. CODE CRIM. PROC. ANN. art. 11.072, §§ 6, 7.

       Although appellant argues that he was entitled to an evidentiary hearing, nothing in

article 11.072 requires the trial court to conduct a hearing before rendering its decision on

the habeas corpus relief sought. See id. art. 11.072. While section 6 (b) of 11.072 states a

trial court may order, among other things, a hearing, it does not require the court to do so.

See id. art. 11.072, § 6(b); Cummins, 169 S.W.3d at 757 (holding that nothing in article

11.072 required the trial court to hear evidence and allow appellant to cross examine former

trial counsel in an application for writ of habeas corpus alleging ineffective assistance); Ex

parte Gonzalez, 323 S.W2d 557, 558 (Tex. App.—Waco 2010, pet ref’d.) (agreeing with the

conclusion in Cummins that no evidentiary hearing is required under article 11.072); Ex

parte Franklin, 310 S.W.3d 918, 922–23 (Tex. App.—Beaumont 2010, no pet.) (stating that

a trial court is not required to hold oral hearings when determining whether to deny an

11.072 application alleging ineffective assistance of counsel); see also Ex parte Faulkner,

No. 09-05-478 CR, 2006 WL 3094339, *3 (Tex. App.—Beaumont 2006, pet. ref’d.) (stating

the decision of whether to conduct a hearing on a article 11.072 application is entirely

discretionary).




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       Article 26.13 of the Texas Code of Criminal Procedure requires a trial court to

admonish a defendant, either orally or in writing, before accepting a guilty plea. See Tex.

Code. Crim. Proc. Ann. art 26.13(a) (Vernon 2011).           When a trial court substantially

complies with article 26.13, it creates a prima facie showing that the defendant's guilty plea

was entered knowingly and voluntarily. See Hughes v. State, 833 S.W.2d 137, 140 (Tex.

Crim. App. 1992), Grays v. State, 888 S.W.2d 876, 878 (Tex. App.—Dallas 1994, no pet.).

In the instant case, appellant was admonished in accordance with article 26.13, therefore

creating a presumption that his guilty plea was entered knowingly and voluntarily.

       Based on the information before the trial judge, including the sworn affidavit of trial

counsel, the trial judge’s previous knowledge of the case, and the presumption that the guilty

plea was knowing and voluntary, we conclude that the trial judge could properly dispose of

the ineffective assistance of counsel claim without holding an evidentiary hearing. As such,

the trial court did not abuse its discretion in deciding appellant’s claim without an evidentiary

hearing. Accordingly, we overrule appellant’s issue.

                                      III.     CONCLUSION

       We affirm the trial court’s judgment.


                                                     Gregory T. Perkes
                                                     Justice
Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of July, 2012.




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