              NUMBERS 13-14-00147-CR & 13-14-00153-CR

                                  COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                       Appellant,

                                                    v.

ALFREDO ZUNIGA GONZALEZ,                                                                  Appellee.


                  On appeal from the County Court at Law No. 8
                           of Hidalgo County, Texas.


                               MEMORANDUM OPINION

                  Before Justices Garza, Benavides, and Perkes
                    Memorandum Opinion by Justice Perkes
        The State of Texas appeals from the trial court’s order granting appellee Alfredo

Zuniga Gonzalez’s application for writ of habeas corpus in two separate causes.1 See


          1 Appellate cause no. 13-14-147-CR is the appeal from trial cause no. CR-06-12734-H. Appellate

cause no. 13-14-153-CR is the appeal from trial cause no. CR-05-4054-H. Our analysis allows us to
consider the two causes in a consolidated opinion. Appellee Alfredo Zuniga Gonzalez did not file a response
brief in either cause.
TEX. CODE CRIM. PROC. ANN. art. 11.072 (West, Westlaw through Ch. 46 2015 R.S.). By

one issue, the State argues the trial court abused its discretion in granting habeas relief

because the record does not support the trial court’s finding that Gonzalez’s guilty pleas

were “made unintelligently, unknowingly, and involuntarily.” We reverse and render.

                                           I. BACKGROUND

        Gonzalez was charged by information with two separate counts of driving while

intoxicated in trial cause numbers CR-05-4054-H and CR-06-12734-H, a Class A and

Class B misdemeanor, respectively. See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (West,

Westlaw through Ch. 46 2015 R.S.).

        At the plea hearing, Gonzalez appeared with counsel who informed the trial court

that he was “standing in for [retained counsel].”2 Gonzalez pleaded guilty, and, prior to

sentencing, Gonzalez’s counsel stated “we would be asking the Court for one year of

probation in this case. This is [retained counsel’s] case. This is what he asked me to

ask of the Court, Your Honor.” In both causes, the trial court sentenced Gonzalez to 180

days’ confinement with a combined fine of $1,400.                    In each case, the trial court

suspended the sentence and placed Gonzalez on community supervision for a period of

eighteen months.

        Gonzalez later filed an application for writ of habeas corpus in both causes alleging

that his “plea of guilty was unlawfully induced and not made voluntarily and intelligently

with understanding of the nature of the charge and the consequences of the plea because

he did not have adequate time to prepare for trial.”                  The application asserts that


        2 Gonzalez retained counsel in April 2005, when he was first indicted. For reasons not apparent in
the record, Gonzalez did not plead guilty to the DWI counts until October 29, 2013.
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Gonzalez’s counsel was not given ten days to prepare for the proceeding in violation of

Texas Code of Criminal Procedure article 1.051(e). See TEX. CODE OF CRIM. PROC. ANN.

art. 1.051(e). Gonzalez included the judgments of conviction and reporter’s record from

the plea proceeding as exhibits to his respective applications. The trial court granted the

applications for writ of habeas corpus without a hearing, and entered the following findings

of fact and conclusions of law in each cause:

        THE COURT FINDS THAT:[3]

        A. On or about January 18, 2005, [Gonzalez] was arrested for . . . Driving
           while Intoxicated.[4]

        B. On October 29, 2013, Gonzalez entered his plea of guilty without time
           to prepare or discuss his case with his attorney.

        C. Neither [Gonzalez] nor his attorney waived the 10 day time period
           required by Texas Code of Criminal Procedure 1.051.

        THE COURT CONCLUDES THAT:

                The right of counsel at trial is regarded as fundamental. The
        assistance of counsel protects a Defendant’s right to a fair trial. Counsel
        ensures that the prosecution’s case is subjected to meaningful adversarial
        testing and safeguards the Defendant’s rights. A Defendant is therefore
        entitled to counsel unless the defendant competently, intelligently, and
        voluntarily waives the right to counsel.

               Article 1.051(e) of the Texas Code of Criminal [P]rocedure provides
        that legal counsel is entitled to 10 days to prepare for a proceeding. Said
        10 days may be waived, but only with the consent of the defendant in writing
        or on the record in open court.

                  In this case, it is clear that:


        3   The trial court’s order uses bold font as shown.

       4 The trial court’s order identifies the offense as a Class A misdemeanor in trial cause no. CR-05-

4054-H and a Class B misdemeanor in trial cause no. CR-06-12734-H. However, the information and
complaint reflect September 22, 2006, as the date of Gonzalez’s arrest in trial cause no. CR-06-12734-H.
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              1. [Gonzalez] did not have 10 days to prepare with his Counsel; and

              2. [Gonzalez] never waived said ten days;

              3. [Gonzalez’s] plea was made unintelligently, unknowingly, and
                 involuntarily as he did not have enough time to talk to his
                 attorney. He was taken to trial with no notice and no time to
                 prepare adequately with counsel.

       The trial court ordered that “[Gonzalez’s] plea[s] of guilty, Judgment and Sentence

are hereby SET ASIDE.” This appeal followed.

                                      II. HABEAS RELIEF

       The State argues “[t]he trial court abused its discretion when granting [Gonzalez]

relief as the record does not support the trial court’s findings of fact or conclusions of law.”

Specifically, the State maintains that: article 1.051(e)’s ten-day provision applies only to

appointed counsel, and not retained counsel; Gonzalez’s retained counsel had more than

ten days to prepare for the plea proceedings; and the trial court’s finding that Gonzalez’s

plea was made unintelligently, unknowingly, and involuntarily is “wholly unsupportable.”

We agree that the trial court abused its discretion in granting relief.

A.     Standard of Review and Applicable Law

       “A guilty plea constitutes a waiver of three constitutional rights: the right to a jury

trial, the right to confront one's accusers, and the right not to incriminate oneself.” Kniatt

v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Boykin v. Alabama, 395 U.S.

238, 243 (1969)). A guilty plea must be entered knowingly, intelligently, and voluntarily

to be consistent with due process of law. Id. The test for determining the validity of a

plea is whether it represents a voluntary and intelligent choice among alternative courses

of action open to the defendant. Ex parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—

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Fort Worth 2009, pet. ref’d) (citing Hill v. Lockhart, 474 U.S. 52, 56 (1985)). A guilty plea

made by a defendant fully aware of the plea’s direct consequences must stand unless it

was induced by threats, misrepresentations, or promises that are by their nature

improper. Ex parte Morrow, 952 S.W.2d 530, 534–35 (Tex. Crim. App. 1997), cert.

denied, 525 U.S. 810 (1998).

       An applicant seeking habeas relief on the basis of an involuntary guilty plea must

prove the claim by a preponderance of the evidence. Kniatt, 206 S.W.3d at 664. When

a person attacks the validity of his prior guilty plea as reflected in the written judgment,

he bears the burden of defeating the normal presumption that recitals in the written

judgment are correct. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013).

The written recitals are binding in the absence of direct proof they are false. Id.

       In an article 11.072 habeas proceeding, we view the facts in the light most

favorable to the habeas court’s ruling and uphold the ruling absent an abuse of discretion.

Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled

on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007); see also

TEX. CODE CRIM. PROC. ANN. art. 11.072. A trial court abuses its discretion when its ruling

is arbitrary or unreasonable. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App.

2003). The trial court is the sole finder of fact in a habeas proceeding. Guerrero, 400

S.W.3d at 583. “We afford almost total deference to a trial court’s factual findings when

supported by the record, especially when those findings are based upon credibility and

demeanor.” Id. An applicant’s live, sworn testimony is a sufficient basis for upholding

a decision to grant habeas relief because the trial court is free to believe any or all of a


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witness’s testimony.   Id.    “Furthermore, reviewing courts will defer to a trial judge’s

factual findings that are supported by the record even when no witnesses testify and all

of the evidence is submitted through affidavits, depositions, or interrogatories.”      Id.

However, “in all habeas cases, sworn pleadings are an inadequate basis upon which to

grant relief, and matters alleged in the application that are not admitted by the State are

considered denied.”     Id.    “If the resolution of the ultimate question turns on an

application of legal standards, we review the determination de novo.” Ex parte Mello,

355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet. ref’d).

B.     Analysis

       In both causes, the recitals in the judgment provide that:

       “[Gonzalez] was arraigned and in open Court, pleaded GUILTY to the
       charge contained in the information. Thereupon the Defendant was
       admonished by the Court of the consequences of said plea, including the
       range of punishment for the offense and that no punishment
       recommendation by the prosecuting attorney is binding on the Court. The
       Court inquired into the existence of a plea bargain agreement and then
       informed the Defendant whether it would reject or accept the plea bargain
       agreement. The Defendant persisted in entering the said plea and it
       appearing to the Court that the Defendant is mentally competent and that
       the plea is free and voluntary, accepted the said plea which is here entered
       of record upon the minutes.

(emphasis added). The written recitals regarding the voluntariness of Gonzalez’s plea

are presumed to be correct and are binding absent direct proof they are false. See

Guerrero, 400 S.W.3d at 583.

       Gonzalez did not testify in the underlying habeas proceedings, and he did not

attach to his application any competent evidence such as affidavits or deposition

testimony that would support the trial court’s findings.     As explained above, “sworn

pleadings are an inadequate basis upon which to grant relief[.]” Id. We further note that

the judge in the plea proceedings properly admonished Gonzalez prior to accepting his
guilty plea in accordance with Texas Code of Criminal Procedure article 26.13.5 See

TEX. CODE OF CRIM. PROC. ANN. art. 26.13. The trial court’s proper admonishment of a

defendant constitutes a prima facie showing that the defendant’s plea was knowing and

voluntary.6 Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam).

There is no evidence in the record rebutting this prima facie showing.

        The trial court’s granting of habeas relief is premised on its finding that Gonzalez

did not have ten days to prepare with counsel in violation of article 1.051(e). See TEX.

CODE CRIM. PROC. ANN. art. 1.051(e).                  Article 1.051(e) provides that “[a]n appointed

counsel is entitled to 10 days to prepare for a proceeding[.]” TEX. CODE CRIM. PROC. ANN.



        5   Article 26.13 provides, in relevant part, that:

            a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall
               admonish the defendant of:

               (1) the range of the punishment attached to the offense;

               (2) the fact that the recommendation of the prosecuting attorney as to punishment is
               not binding on the court. . . .

               (3) the fact that if the punishment assessed does not exceed the punishment
               recommended by the prosecutor and agreed to by the defendant and the defendant’s
               attorney, the trial court must give its permission to the defendant before the defendant
               may prosecute an appeal on any matter in the case except for those matters raised
               by written motions filed prior to trial;

             (4) the fact that if the defendant is not a citizen of the United States of America, a plea
             of guilty or nolo contendere for the offense charged may result in deportation, the
             exclusion from admission to this country, or the denial of naturalization under federal
             law; and
             ...
        (b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless it
        appears that the defendant is mentally competent and the plea is free and voluntary.

TEX. CODE OF CRIM. PROC. ANN. art. 26.13(a),(b) (West, Westlaw through Ch. 46 2015 R.S.).

        6 While the trial court’s admonishments were in compliance with article 26.13, we note that the trial

court was not required to comply with article 26.13 because Gonzalez was charged with misdemeanor
offenses. See State v. Guerrero, 400 S.W.3d 576, 589 (Tex. Crim. App. 2013) (explaining that article
26.13 does not apply to misdemeanor cases).
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art. 1.051(e). Federal and Texas state courts limit the review of post-conviction writs to

jurisdictional or fundamental defects and constitutional claims.     Ex parte Graves, 70

S.W.3d 103, 109 (Tex. Crim. App. 2002). “Violations of statutes, rules, or other non-

constitutional doctrines are not recognized” on collateral review.     Id. Accordingly, a

violation of article 1.051(e) is not a basis for habeas relief.

       We also observe that the primary objective of article 1.051(e) is to “ensure the

indigent defendant receives appointed counsel who is prepared for the proceeding.”

Marin v. State, 891 S.W.2d 267, 272 (Tex. Crim. App. 1994). The record reflects that

Gonzalez was represented by retained counsel. Article 1.051(e) does not apply to a

defendant represented by retained counsel. See id.; see also Garay v. State, 04-14-

00252-CR, 2015 WL 1876160, at *2 (Tex. App.—San Antonio 2015, no pet. h.) (mem.

op., not designated for publication) (holding article 1.051(e) did not apply where defendant

appeared at trial with retained counsel); Blacklock v. State, No. C14-93-00330-CR, 1994

WL 416551, *2 (Tex. App.—Houston [14th Dist.], pet. ref’d) (mem. op., not designated for

publication) (same).

       Even if article 1.051(e) were applicable here, there is no support in the record for

the trial court’s finding that Gonzalez “did not have 10 days to prepare with his Counsel.”

The record reflects that Gonzalez was represented in the underlying causes since 2005,

when his counsel filed a “Waiver of Arraignment.” Gonzalez’s counsel filed motions for

continuance in 2012 for the express purpose of having additional time to negotiate a plea

agreement with the State. Gonzalez’s guilty pleas were entered twenty-one months

later. Further, Gonzalez’s representation by substitute counsel at the plea hearing does


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not constitute a violation of article 1.051(e). See Roberson v. State, 879 S.W.2d 250,

253 (Tex. App.—Dallas 1994, no pet.) (holding “ten-day preparation period does not apply

to counsel who substitutes for a court-appointed counsel who has not been replaced”).

Substitute counsel was merely standing in for Gonzalez’s retained attorney to carry out

his express instructions.

C.     Summary

       Although we defer to a trial court’s factual findings when they are supported by the

record, we conclude that the record in this case does not support the trial court’s finding

that Gonzalez’s “plea was made unintelligently, unknowingly, and involuntarily.” See

State v. Groves, 837 S.W.2d 103, 106 (Tex. Crim. App. 1992) (declining to defer to a trial

court's factual findings that were not supported by the record). In the absence of any

competent evidence in the record on which to base its decision, we hold the trial court

abused its discretion in granting habeas relief. We sustain the State’s issue.

                                     III. CONCLUSION

       In both appellate causes, we reverse the trial court’s orders granting Gonzalez’s

application for a writ of habeas corpus, and render judgment that Gonzalez’s guilty pleas

are reinstated.

                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of September, 2015.



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