                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00155-CR

                    EX PARTE JOSE LOUIS HERNANDEZ



                              From the County Court
                                Hill County, Texas
                             Trial Court No. M0858-02


                          MEMORANDUM OPINION


      Raising three issues, Appellant Jose Louis Hernandez appeals the denial of his

application for post-conviction habeas relief. We will affirm.

      On June 16, 2002, Hernandez was arrested for the misdemeanor offense of

“assault causing bodily injury to family member.” On July 7, 2002, Hernandez pled

guilty to that charge and received thirty days in jail, a $300 fine, and court costs. In

connection with that guilty plea, Hernandez signed a waiver of counsel.

      Thereafter, in late December 2012, Hernandez was arrested for “drinking while

driving” and was subsequently detained by the Department of Homeland Security in

January 2013. In August 2013, Hernandez filed his application for writ of habeas
corpus, alleging that his 2002 guilty plea was involuntary. Specifically, he alleged that

he did not know or understand English and was not afforded a translator, his waiver of

counsel was involuntary, and he was not admonished on the immigration consequences

of his guilty plea. After an evidentiary hearing, the trial court denied habeas relief.

               We review the trial court’s denial of a habeas corpus application for
       an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
       App. 2006). An applicant who asserts that her plea was not knowing and
       voluntary must prove her claim by a preponderance of the evidence. Id.
       We review “the record evidence in the light most favorable to the trial
       court’s ruling and [we] must uphold that ruling absent an abuse of
       discretion.” Id. We give almost total deference to the trial court’s findings
       that are “‘based upon credibility and demeanor.’” Ex parte Amezquita, 223
       S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d
       46, 50 (Tex. Crim. App. 2004)).

Ex parte Rodriguez, 378 S.W.3d 486, 489 (Tex. App.—San Antonio 2012, pet. ref’d), cert.

denied, 134 S.Ct. 785 (2013).

               In habeas corpus proceedings, “[v]irtually every fact finding
       involves a credibility determination” and “the fact finder is the exclusive
       judge of the credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d
       461, 465 (Tex. Crim. App. 1996). In an article 11.072 habeas case, such as
       the one before us, the trial court is the sole finder of fact. Ex parte Garcia,
       353 S.W.3d 785, 788 (Tex. Crim. App. 2011). “There is less leeway in an
       article 11.072 context to disregard the findings of a trial court” than there
       is in an article 11.07 habeas case, in which the Court of Criminal Appeals
       is the ultimate fact finder. Id.

Ex parte Ali, 368 S.W.3d 827, 831-32 (Tex. App.—Austin 2012, pet. ref’d). We must also

defer “not only to all implicit factual findings that the record will support in favor of a

trial court’s ruling, ‘but also to the drawing of reasonable inferences from the facts.’”

Amador v. State, 221 S.W.3d 666, 675-76 (Tex. Crim. App. 2007).

       In his first issue, Hernandez complains that the trial (habeas) court erred in


Ex parte Hernandez                                                                       Page 2
denying habeas relief because his waiver of counsel was not voluntary, intelligent,

knowing, and competent. The attachment of the right to counsel occurs at all critical

stages of prosecution, Wesbrook v. State, 29 S.W.3d 103, 117 (Tex. Crim. App. 2000), and a

guilty plea is a critical stage. See, e.g., Ex parte Howard, 591 S.W.2d 906 (Tex. Crim. App.

1980) (granting habeas relief where petitioner had no counsel for entry of guilty plea);

Ex parte Young, 417 S.W.2d 403 (Tex. Crim. App. 1967) (voiding convictions where

petitioner showed he was not represented by counsel when he pleaded guilty and

waived jury trial); cf. Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009) (stating

that accused has right to effective assistance of counsel in guilty-plea proceedings).

       The right to counsel may be waived; to be valid, it must be made knowingly and

intelligently, and the defendant must be made aware of the dangers and disadvantages

of self-representation. Allen v. State, 236 S.W.3d 818, 820-21 (Tex. App.—Waco 2007, pet.

ref’d). “To decide whether a defendant’s waiver is knowing and intelligent, the court

must make an inquiry, evidenced by the record, which shows that the defendant has

sufficient intelligence to demonstrate a capacity to waive his right to counsel and the

ability to appreciate the practical disadvantage he will confront in representing himself.

The court must determine not only that the defendant wishes to waive his right to

counsel, but that he understands the consequences of such waiver.” Id. at 821 (citations

omitted).

       The waiver that Hernandez signed provides in pertinent part:

        On this 3rd day of July, 2002, I have been advised by the above-named Court of
the following:


Ex parte Hernandez                                                                    Page 3
              A. WAIVER OF COUNSEL. 1) The right to represent myself in a
       criminal proceeding and the dangers and disadvantages of self-
       representation; and
              2) My right to representation by counsel in the trial of the charge
       pending against me. I have been further advised that if I am unable to
       afford counsel, one will be appointed for me free of charge, save and
       except that, if the Court determines I have sufficient financial resources,
       the Court shall order me to pay all or part of the legal services provided,
       including expenses and costs.
              I fully understand my right to (1) and (2) above and, having no
       further questions about them, I hereby knowingly and intelligently waive
       my (2) right above and request to [sic] Court to proceed with my case
       without an attorney being appointed for me. I hereby waive my right to
       counsel.

       The document is signed by then-County Attorney Mark Pratt and by Hernandez.

Under Hernandez’s signature is the signature of Sandra Daughtery, who is identified as

“Interpreter.” The waiver also includes a paragraph that waives the making of a record.

       The trial judge at the time, the Honorable Kenneth Davis, signed an order

attached to the waiver that provides in part:

             The above WAIVER OF COUNSEL by the Defendant herein having
       been duly considered by the Court, and it appearing to the Court that the
       Defendant is herein charged with a MISDEMEANOR, and after the Court
       has advised the Defendant of his right to counsel provided in Vernon’s
       Ann. C.C.P., Art. 26.04, and the Court being satisfied that said Defendant
       executed said Waiver of Counsel knowingly and intelligently and
       voluntarily; therefore, consent and approval of the Court is hereby
       granted.

       In the habeas hearing, Hernandez testified through an interpreter that he was

never offered an attorney, that he came to court and was told “it was going to be time

served,” and that he signed a piece of paper. He said that he did not know what the

paper said because he did not speak or understand English at that time. Hernandez

also testified that he was never told that he had a right to an attorney and that, if an

Ex parte Hernandez                                                                   Page 4
attorney had been offered, he would have accepted it.                      On cross-examination,

Hernandez admitted that he signed the waiver of counsel but denied that an interpreter

was present or translated the waiver for him.

       Judge Davis testified; he identified the waiver (and his accompanying order) and

the signatures of Pratt and Daughtery, whom he said had been a clerk in the county

judge’s office. Judge Davis said that Daughtery was “very fluent” in Spanish and was

used as an interpreter in his court and also in the district court. It was a regular practice

in his court to use Daughtery to interpret for defendants who did not understand

English. Regarding the waiver that Hernandez signed, Judge Davis said:

       I have no doubt in my mind that she explained it thoroughly, because she
       would go step by step through it, and then ask each defendant if they
       understood what she had said. And if they didn’t, she would explain it to
       where they did, and then they would sign off on it.

       Judge Davis also testified that it was his practice to make sure that the

defendants understood the rights that they were waiving to enter a guilty plea, that he

had no reason to believe that Hernandez was not advised of his right to counsel on July

3, 2002, when he appeared in court, and that Hernandez was, in fact, advised of his

right to counsel.1 Judge Davis also explained that, because of the waiver of the record,

there was not a court reporter for Hernandez’s guilty plea.

       In his second issue, Hernandez asserts that the habeas court erred in denying

habeas relief because his guilty plea was not made voluntarily, knowingly, and

intelligently. Hernandez argues that he was not admonished on the potential and


1
 Hernandez’s judgment of conviction states that he appeared with counsel; Judge Davis explained that it
was a clerical error.

Ex parte Hernandez                                                                              Page 5
specific immigration consequences of his guilty plea.2 His testimony and argument is

that he pled guilty for time served and understood that he would remain free, but

because he had entered the United States illegally, he has now been detained for eight

months (as of the habeas hearing) in immigration jail and is ineligible to have his

removal from the United States cancelled because of the nature of the offense (domestic

violence) that he pled guilty to. If he had been informed of that consequence, he would

not have pled guilty.

        Judge Davis identified the docket sheet from Hernandez’s case and testified that

it stated that Hernandez was “admonished as to the effect of a guilty plea.” Judge

Davis explained that the county attorney “always reminded a defendant that if they

were here illegally, that the plea of guilty might cause them to be deported. That was

just a standard thing that we did.”3 He admitted that the immigration admonishment




2
  Hernandez also argues that under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), he should have
been admonished with specific immigration consequences from his guilty plea. Padilla, however, applies
in the context of an ineffective-assistance-of-counsel claim and a criminal-defense attorney’s duty to
advise the defendant on immigration consequences. See id. 559 U.S. at 368-69, 130 S.Ct. at 1483. In any
event, Padilla is not retroactive. Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013); Ex parte De Los Reyes,
392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Furthermore, Hernandez cites no controlling authority that
requires a trial judge to admonish a defendant in accord with Padilla.

3 In the case of a guilty plea in a felony case, the defendant is to be admonished as follows: “(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; … .” TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West Supp.
2014). This was the law in 2002. While article 26.13 does not apply to misdemeanor cases, see State v.
Guerrero, 400 S.W.3d 576, 589 (Tex. Crim. App. 2013), there is no prohibition of using felony
admonishments in a misdemeanor plea hearing. See id. at n.58. See generally id. at 588-89 (“appellee was
an undocumented immigrant and was deportable for that reason alone, both in 1998 and today. Had
appellee gone to trial with counsel and been acquitted he would not have been transformed into a legal
resident. He could have been deported immediately after walking out of the criminal courthouse. The
prospect of removal therefore could not reasonably have affected his decision to waive counsel and plead
guilty.”).

Ex parte Hernandez                                                                                      Page 6
was not on the docket sheet but added that it was something that the interpreter would

interpret.

       Judge Davis’s testimony controverted Hernandez on the presence and use of an

interpreter (Daughtery) who interpreted and explained the waiver to Hernandez and

on being admonished about immigration consequences. By denying habeas relief, the

habeas court obviously believed Judge Davis and disbelieved Hernandez. Because the

habeas court is the finder of fact and the exclusive judge of the credibility of the

witnesses, we conclude that the habeas court did not abuse its discretion in denying

habeas relief on Hernandez’s allegations that the waiver of counsel was not voluntary,

intelligent, knowing, and competent and that his guilty plea was involuntary. Issues

one and two are overruled.

       Issue three asserts that the habeas court abused its discretion in overruling

objections to allegedly irrelevant questions to Hernandez by the State during cross-

examination in the evidentiary hearing. McDonald v. State, 179 S.W.3d 571, 576 (Tex.

Crim. App. 2005). “Under an abuse of discretion standard, an appellate court should

not disturb the trial court’s decision if the ruling was within the zone of reasonable

disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

       During cross-examination, the State sought to impeach Hernandez’s credibility

by asking him about his illegal presence in the country, his right to work in the country,

and whether he paid income taxes for all the years he had worked. Each of these topics

was related to statements in Hernandez’s affidavit that was attached to his habeas

application. Furthermore, because Hernandez’s and Judge Davis’s testimony on the

Ex parte Hernandez                                                                  Page 7
key issues were in conflict, credibility was quite relevant. See, e.g., Hammer v. State, 296

S.W.3d 555, 561-62 (Tex. Crim. App. 2009) (in “he said, she said” trials involving “two

diametrically different versions of an event,” the Rules of Evidence … should be used

sparingly to exclude relevant, otherwise admissible evidence that might bear upon the

credibility of … the defendant”). Accordingly, we cannot say that the habeas court

abused its discretion in overruling Hernandez’s objections. Issue three is overruled.

       Having overruled all of Hernandez’s issues, we affirm the habeas court’s order

denying his application for post-conviction habeas relief.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 30, 2015
Do not publish
[CR25]




Ex parte Hernandez                                                                    Page 8
