                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-19-00125-CR
                               __________________

              EX PARTE ADELIO ALEXANDER BARAHONA

__________________________________________________________________

             On Appeal from the County Court at Law No. 5
                     Montgomery County, Texas
                       Trial Cause No. 19-31229
__________________________________________________________________

                          MEMORANDUM OPINION

      In this appeal, we must decide whether the court that heard Alexander

Barahona’s second petition seeking a writ of habeas corpus erred by denying the

petition, which sought to overturn Barahona’s conviction for his 2018 misdemeanor

conviction for DWI. 1 Article 11.59 of the Code of Criminal Procedure prevents


      1
         We dismissed Barahona’s appeal from his first petition seeking habeas relief
in 2018. Ex parte Barahona, No. 09-18-00328-CR, 2018 Tex. App. LEXIS 8886, at
*2 (Tex. App.—Beaumont Oct. 31, 2018, no pet.) (mem. op., not designated for
publication) (dismissing Barahona’s first appeal from the habeas court’s ruling on
Barahona’s first petition seeking habeas relief in the same case he challenged in the
first habeas proceeding, which he filed in July 2018).
courts from considering a successive petition for habeas relief unless the petitioner

establishes that his claims are based on facts not within the petitioner’s power to

produce when the habeas court heard the petitioner’s former writ.2

        For the reasons explained below, we affirm in part and reverse and remand in

part.

                                       Background

        Between 2001 and May 24, 2018, Barahona lived in Montgomery County,

Texas as a temporary-resident alien under a federal program that allowed an agency

of the federal government to give him permission to live in the United States.3 But

in May 2018, the agency, which operates within the Department of Homeland

Security, notified Barahona that he might no longer qualify to continue living in the

United States under the program based on the application he filed to renew his status

under the federal program. The letter informed Barahona that his application

contained information showing he had been convicted of two misdemeanors, and


        2
            Tex. Code Crim. Proc. Ann. art. 11.59.
        3
        8 U.S.C.S. § 1254a(c)(2)(B)(i). (LEXIS through Pub. L. No. 116-91). The
program described by the federal agency in a letter Barahona filed in support of his
second petition for relief outlines the rules of the agency’s program under which
Barahona had qualified to live in the United States. The letter states that Barahona’s
application seeking to renew his right to live here under “Temporary Protected Status
(TPS)” contains information—referring to the two misdemeanor convictions—“that
may warrant the denial of your TPS application.”
that under the rules of the program, he might be ineligible to renew the status as a

temporary-resident alien living in the United States. In June 2018, Barahona filed

his former petition, his first, challenging the validity of his conviction on the 2018

misdemeanor DWI.

      The habeas court conducted a hearing on Barahona’s 2018 petition and denied

the petition. Barahona appealed the ruling, but this Court dismissed that appeal after

finding the Court of Appeals did not have jurisdiction over the appeal because the

notice required to perfect the appeal had not been filed in a timely manner.4

      In February 2019, Barahona filed another petition to overturn his conviction

on the 2018 DWI. The 2019 petition, like the one he filed in 2018, alleges the

attorney who represented him in the proceedings that resulted in his conviction failed

to advise him before he pleaded guilty that a conviction would jeopardize his right

to continue to reside in the United States. Barahona’s 2019 petition, however, added

one more claim. He asked the habeas court in 2019 to grant his request for an out-

of-time appeal, since the attorney who represented him in his 2018 appeal had failed

to file a timely notice of appeal.




      4
        Barahona, 2018 Tex. App. LEXIS 8886, at *2; see also Tex. R. App. P.
26.2(a)(1) (deadlines for filing appeals).
      But other than one new claim, the allegations in two habeas petitions are

essentially the same. Both petitions challenge the validity of Barahona’s 2018

conviction based on trial counsel’s failure to advise him properly of the

consequences of his plea, given the restrictions of the federal program that allowed

the federal agency to give Barahona permission to continue to live in the United

States. During the hearing and in the appeal, no one disputes the federal program

includes restrictions, including one that allowed the federal agency to deny

Barahona’s application based on his two convictions on misdemeanor DWIs.5

      Barahona’s 2019 petition contains exhibits, including the petition and exhibits

he filed with the former petition he filed in 2018. One of the exhibits is an affidavit

Barahona signed, which is in Spanish. It states that the attorney who represented

Barahona on his 2018 DWI advised him that having another misdemeanor DWI

would not impact his right to live in the United States. And Barahona’s affidavit

states he relied on the advice of his attorney about the immigration consequences of

his plea before deciding to plead guilty in 2018. 6




      5
          8 U.S.C.S. § 1254a(c)(2)(B)(i) (Lexis through Pub. L. No. 116-91).
      6
        The affidavit Barahona attached to his original petition is in Spanish, and
there is not an English translation in the record pertinent to Barahona’s current
appeal.
      Several new exhibits, which were not included with his former petition filed

in 2018, accompanied the petition filed in 2019. One of these is an affidavit from the

trial attorney who represented Barahona on his 2018 DWI. The attorney’s affidavit

states the following: (1) the attorney knew that Barahona was an alien; (2) Barahona

was concerned about how the proceedings might affect his right to remain in the

United States; (3) he consulted with an immigration lawyer; (4) the immigration

attorney told Barahona that pleading guilty to “a Class B DWI would have no

negative impact on Mr. Barahona’s immigration status[;]” and (5) he conveyed that

information to Barahona before Barahona pleaded guilty to committing a Class B

misdemeanor DWI. 7 That said, nothing in the attorney’s affidavit explains why

Barahona could not have produced this same information in his former petition, filed

in 2018, when he first challenged his conviction on the misdemeanor DWI.

      The habeas court conducted another hearing on Barahona’s second petition

for relief. Once again, the habeas court denied Barahona’s request to overturn his

conviction on the 2018 DWI. The habeas court also provided the parties with written

findings and conclusions. It found that Barahona had no right to relief on his 2019

petition because he failed to produce information not within his power to produce at



      7
       The copy of the 2018 judgment of conviction in the record reflects that
Barahona was in fact convicted of a Class B misdemeanor DWI.
the former hearing in 2018. And the court denied Barahona’s request for an out-of-

time appeal. As to that claim, the habeas court found Barahona had no right to relief

because he had “no right to any counsel, much less constitutionally effective

counsel,” in the appeal he filed challenging his 2018 conviction on the misdemeanor

DWI.

                                        Issues

       Barahona raises four issues in his appeal. He argues the habeas court erred by

denying his petition (1) because the evidence established he did not receive effective

assistance of counsel on his 2018 DWI, (2) his agreement to plead guilty to the 2018

DWI was involuntary, (3) he established the grounds required to file a second

petition for habeas corpus under Texas law, and (4) the evidence in the hearing

shows he was entitled to an out-of-time appeal.

                                       Analysis

       For convenience, we address Barahona’s third issue before addressing the

other issues in his appeal. 8 In issue three, Barahona argues his 2019 petition hinges

on facts that were either not within his power to produce at the former hearing or are




       8
         See Tex. R. App. P. 47.1 (allowing the court of appeals to limit its discussion
of the issues to resolving the issues necessary to the court’s final disposition of the
appeal).
based on a change in the law that has occurred since the 2018 hearing.9 The habeas

court rejected both arguments at the hearing it conducted in 2019.

      We have already mentioned that several of the exhibits Barahona relied on in

2019 were included with Barahona’s former petition for relief. One of the exhibits

not before the court in 2018 is an affidavit from the attorney who represented

Barahona on his 2018 DWI. The attorney’s affidavit states he told Barahona that

pleading guilty to the DWI “would have no negative impact on Mr. Barahona’s

immigration status, including [Barahona’s] ability to renew his TPS status.” A

second exhibit not before the habeas court in 2018 is another affidavit from an

attorney who is board certified in immigration law. The immigration attorney’s

affidavit states the advice Barahona received in 2018 about the immigration

consequences of his plea “was incorrect and contrary to established law.” But neither

of the attorneys’ affidavits explains why they could not have testified or provided

affidavits during the former proceedings that occurred in 2018.

      Barahona filed a new affidavit, this one in English, to support his second

petition for relief. But his affidavit also fails to explain why he could not have

produced the evidence from the two attorneys who gave evidence on his behalf in


      9
        Tex. Code Crim. Proc. Ann. art. 11.59 (noting the statutory requirements
that apply to parties who seek to obtain relief from their convictions by filing second
writs).
the former hearing in 2018. When the habeas court conducted the 2019 hearing,

Barahona was not present.10 Only one witness testified in the 2019 hearing, the

attorney who represented Barahona on his 2018 DWI. The attorney testified to the

same facts contained in his affidavit. But the attorney also testified he was available

to provide the court with his testimony or an affidavit in 2018. He also testified that,

in 2018, the attorney who filed Barahona’s 2018 petition for habeas relief contacted

him but then never called him as a witness.

      On appeal, Barahona characterizes the evidence from the two attorneys as

evidence not previously presented to the court. While that’s true, the evidence and

his argument fail to explain why the habeas court could not have found that Barahona

failed to establish the evidence he presented in 2019 was not within his power to

produce in 2018.

       Generally, courts review rulings granting or denying a petitioner’s writ of

habeas corpus under an abuse of discretion standard.11 “An abuse of discretion does

not occur unless the trial court acts arbitrarily or unreasonably or without reference



      10
          The court advised the attorneys that the court would consider the exhibits
that Barahona had attached to his second habeas application when ruling on the
petition.
      11
            See Ex parte Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth 2005,
no pet.).
to any guiding rules and principles.” 12 We afford almost total deference to a trial

court’s determination of the historical facts, when supported by the record,

“especially when the trial court’s fact findings are based on an evaluation of

credibility and demeanor.” 13 In our review, we consider the evidence in a light that

favors the habeas court’s ruling. 14 If, however, the habeas court resolved the issue in

the hearing based on the habeas court’s application of a legal standard, we review

the ruling using a de novo standard.15

      Habeas applicants filing successive writs face a heightened evidentiary burden

to show they are entitled to relief.16 They must show the evidence they are using to

support their successive petition is important and not within their power to produce

at the former hearing. 17 While Barahona argues the habeas court could have


      12
         State v. Hill, 499 S.W.3d 843, 865 (Tex. Crim. App. 2016) (cleaned up);
see also Ex parte O’Neal, No. 09-15-00229-CR, 2015 Tex. App. LEXIS 9885, at *5
(Tex. App.—Beaumont Sept. 23, 2015, pet. ref’d) (mem. op., not designated for
publication).
      13
       Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (quoting
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
      14
        See Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (citation omitted).
      15
           Id. (citation omitted).
      16
           Tex. Code Crim. Proc. Ann. art. 11.59.
exercised its discretion and disregarded the requirements of article 11.59, the court

chose not to do so here. 18 While we doubt the habeas court could have disregarded

the requirements in the statute, the habeas court’s finding that Barahona could have

produced the same evidence in the 2018 hearing he produced in 2019 is firmly

supported by the evidence in the record in this appeal.

      With respect to Barahona’s ineffective-assistance-of-trial-counsel claim, we

hold the habeas court did not abuse its discretion by concluding Barahona failed to

establish that his second petition depended on evidence that was not within his power

to produce at the former hearing in 2018.19 We overrule Barahona’s third issue. 20




      17
           Id.
      18
         Id. (providing the successive habeas petitioner must show that “since the
hearing of the first motion important testimony has been obtained which it was not
in his power to produce at the former hearing”).
      19
        Id.; Ex parte Tavakkoli, No. 09-14-00358-CR, 2015 Tex. App. LEXIS 2032,
at *9–10 (Tex. App.—Beaumont Mar. 4, 2015, pet. ref’d) (mem. op., not designated
for publication) (concluding applicant failed to meet the requirements of article
11.59); see also Ex parte Andrews, No. 02-16-00393-CR, No. 02-16-00394-CR,
2017 Tex. App. LEXIS 2764, at *3 (Tex. App.—Fort Worth Mar. 30, 2017, no pet.)
(mem. op., not designated for publication).

      20
        Given our resolution of issue three, we need not address issues one and two.
Tex. R. App. P. 47.4.
                                 Out-of-time Appeal

      In his fourth issue, Barahona argues the habeas court erred by denying his

request seeking the court’s permission to file an out-of-time appeal. First, we note

that county courts possess original jurisdiction to grant post-conviction habeas relief

on misdemeanor cases, which includes the right to grant a petitioner’s request for an

out-of-time appeal.21 Second, we conclude Barahona could not provide evidence in

the hearing in 2018 about his appellate attorney’s failure to timely pursue an appeal

from a ruling made in 2018. Third, we note that Barahona’s right to appeal an

adverse ruling on a writ of habeas corpus is a statutory right granted by the

legislature, it is not a right granted under the Constitution.22 So given the power the

legislature gave county courts to grant out-of-time appeals, and given the

circumstances surrounding Barahona’s failure to file a timely appeal from the 2018

ruling, we must decide whether the habeas court abused its discretion by refusing to

grant Barahona’s request for an out-of-time appeal.




      21
          See Tex. Const. art. V, § 16; Tex. Code Crim. Proc. Ann. arts. 11.05, 11.072
§ 2; see generally Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769
S.W.2d 554, 558–59 (Tex. Crim. App. 1989) (explaining the habeas applicant’s
remedy fell within the trial court’s authority to grant an out-of-time appeal).
      22
           Tex. Code Crim. Proc. Ann. art. 11.073, § 8.
      Relying on Ex parte Graves,23 the 2019 habeas court’s findings reflect that

court determined Barahona’s request for an out-of-time appeal on the court’s 2018

ruling was not cognizable because defendants do not have a right to effective

assistance of counsel in habeas cases. But in Ex parte Graves, the Court of Criminal

Appeals addressed whether habeas applicants enjoy a constitutional right to have

arguments different than those the habeas attorney raised during the hearing. Graves

did not address whether a habeas court should entertain a party’s request for an out-

of-time appeal, a procedural requirement governed by the appellate rules.

      The right to appeal a habeas court’s ruling is a statutory right, granted by the

legislature.24 The deadline to file a notice of appeal is a matter governed by the rules

adopted by the Court of Criminal Appeals. 25 Because Graves concerned

constitutional rights about arguments and not a procedural right granted by the

legislature or appellate deadlines created by the Court of Criminal Appeals, we

conclude the holding in Graves does not control whether the habeas court should


      23
           70 S.W.3d 103, 110 (Tex. Crim. App. 2002).
      24
        Id; see also Tex. Code Crim. Proc. ann. Art. 11.072, § 8 (providing that if
“the application is denied in whole or part, the applicant may appeal under Article
44.02 and Rule 31, Texas Rules of Appellate Procedure”); Tex. R. App. P. 25.2(2)
(“A defendant in a criminal case has a right of appeal under Code of Criminal
Procedure article 44.02 and these rules.”).
      25
           Tex. R. App. P. 31.1(a); 26.2(a).
have considered and granted Barahona’s request for permission to file an out-of-time

appeal. 26

       The evidence relevant to Barahona’s request shows he wanted to file an

appeal, retained an attorney to do so, but the attorney who represented him

miscalculated the date the notice was due. For obvious reasons, that evidence was

unavailable to Barahona at the former hearing in 2018. We conclude the habeas court

erred by failing to grant Barahona’s request for an out-of-time appeal.27

       On this record, we cannot conclude the habeas court’s error was harmless.28

Currently, Barahona’s brief, as well as the State’s, focus on the evidence before the

court in the hearing that occurred in 2019. While the State, when the issue is joined,

may choose to argue the scope of appellate review restricts this Court to the evidence

available to the habeas court during the hearing it conducted in 2018, we don’t know

what arguments the parties might raise on that question in the briefs they file to

support their arguments in a future appeal.




       26
            Id. 26.2(a).
       27
         See Ex parte Wooten, No. WR-64,526-10, 2019 Tex. Crim. App. Unpub.
LEXIS 197, at *2 (per curiam) (not designated for publication) (granting out-of-time
appeal to allow an appeal of a misdemeanor DWI).
       28
            See Lee v. United States, 137 S.Ct. 1958, 1966–69 (2017).
      For the reasons we have explained, we hold the habeas court abused its

discretion by denying Barahona’s request for an out-of-time appeal. We reverse the

judgment to the extent that the judgment denied Barahona’s request for an out-of-

time appeal on Trial Court Cause Number 18-30764. On remand, we instruct the

habeas court to grant Barahona’s request for an out-of-time appeal so he can appeal

from the habeas court’s 2018 ruling.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




                                                   _________________________
                                                        HOLLIS HORTON
                                                             Justice

Submitted on August 13, 2019
Opinion Delivered March 4, 2020
Do Not Publish

Before Kreger, Horton and Johnson, JJ.
