                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-10-00029-CR

                     EX PARTE JOSE JESUS GONZALEZ




                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 23223CR


                                     OPINION


      Jose Jesus Gonzalez filed a habeas application under article 11.072 of the Code of

Criminal Procedure seeking relief from a deferred adjudication order for indecency

with a child. The court denied Gonzalez’s application without a hearing. Gonzalez

contends in his sole issue that the court erred by resolving controverted facts against

him without first conducting an evidentiary hearing. We will affirm.

                                     Article 11.072

      Article 11.072, section 6 provides in pertinent part:

      (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.
        (b) In making its determination, the court may order affidavits,
        depositions, interrogatories, or a hearing, and may rely on the court’s
        personal recollection.

        (c) If a hearing is ordered, the hearing may not be held before the eighth
        day after the day on which the applicant and the state are provided notice
        of the hearing.

TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(a)-(c) (Vernon 2005).1

        Based on the language of subsection (b) alone, the Fort Worth Court of Appeals

has concluded that no evidentiary hearing is required under article 11.072. Ex parte

Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). We agree with

that conclusion, but we find further support for it in cases construing a similar

provision in article 11.07.2

        Article 11.07, section 3(d) provides in pertinent part, “To resolve [controverted

fact] issues the court may order affidavits, depositions, interrogatories, additional

forensic testing, and hearings, as well as using personal recollection.” TEX. CODE CRIM.

PROC. ANN. art. 11.07, § 3(d) (Vernon Supp. 2009).

        This language in article 11.07, section 3(d) has long been construed to mean that a

trial court is not required to conduct an evidentiary hearing to resolve controverted

material fact issues in a postconviction habeas proceeding. See Ex parte Davila, 530

S.W.2d 543, 545 (Tex. Crim. App. 1975) (op. on reh’g); In re Banister, No. 07-09-00117-


1
      Article 11.072 provides “procedures for an application for a writ of habeas corpus in a felony or
misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering
community supervision.” TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (Vernon 2005).

2
        Article 11.07 provides procedures for a habeas application following a felony conviction in which
the applicant received a prison sentence but not the death penalty. See id. art. 11.07, § 1 (Vernon Supp.
2009); Ex parte Brown, 662 S.W.2d 3, 4 (Tex. Crim. App. 1983) (per curiam).


Ex parte Gonzalez                                                                                 Page 2
CV, 2009 WL 1160966, at *1 (Tex. App.—Amarillo Apr. 30, 2009, orig. proceeding)

(mem. op.); In re J.W.A., No. 03-03-00464-CV, 2005 WL 2574024, at *4 (Tex. App.—

Austin Oct. 13, 2005, no pet.) (mem. op.).

        “[W]hen a legislature reenacts a law using the same terms that have been

judicially construed in a particular manner, one may reasonably infer that the

legislature approved of the judicial interpretation.” State v. Medrano, 67 S.W.3d 897, 902

(Tex. Crim. App. 2002).

                                              Herrera Claims

        The Beaumont Court of Appeals has recently held that an evidentiary hearing is

required under article 11.072 if the habeas applicant makes a Herrera claim3 supported

by newly discovered, affirmative evidence of innocence and the trial judge before

whom the habeas application is pending did not preside over the applicant’s trial.4 See

Ex parte Franklin, 310 S.W.3d 918, 921-23 (Tex. App.—Beaumont 2010, no pet.). The

Beaumont Court cited Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006), and Ex




3
         The Court of Criminal Appeals recognizes two types of “innocence” claims: (1) a Herrera claim,
which is “a substantive claim in which applicant asserts his bare claim of innocence based solely on
newly discovered evidence”; and (2) a Schlup claim, which “is a procedural claim in which applicant’s
claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at
trial.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v. Delo, 513 U.S. 298, 115
S. Ct. 851, 130 L. Ed. 2d 808 (1995); Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993))
(other citations omitted). The recantation of a witness raises a Herrera claim. See id. at 678 n.7.

4
        The Beaumont Court expressly left open “the question of whether a habeas court is required to
have a hearing when the habeas court has personal knowledge of the prior trial proceedings.” Ex parte
Franklin, 310 S.W.3d 918, 923 n.5 (Tex. App.—Beaumont 2010, no pet.). The court distinguished the Fort
Worth Court’s decision in Cummins because the applicant in Cummins raised an ineffective-assistance
claim rather than a Herrera claim. See id. at 922-23.



Ex parte Gonzalez                                                                                        Page 3
parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002),5 as compelling this conclusion. In

our view, however, the cited authorities do not require an evidentiary hearing if the

habeas judge is the same judge who presided over the applicant’s trial, and we do not

address whether an evidentiary hearing is required if a different judge is called upon to

decide the habeas application.

       In Franklin, the Court of Criminal Appeals addressed the quality of newly

discovered evidence required to even raise a controverted fact issue on a Herrera claim.

       A conviction that results from a constitutionally error-free trial is entitled
       to the greatest respect. Accordingly, we hold that when an applicant
       asserts a Herrera-type claim based on newly discovered evidence, the
       evidence presented must constitute affirmative evidence of the applicant’s
       innocence. Once the applicant provides such evidence, it is then
       appropriate to proceed with a determination of whether the applicant can
       prove by clear and convincing evidence that no reasonable juror would
       have convicted him in light of the newly discovered evidence.

Franklin, 72 S.W.3d at 677-78 (emphasis added) (citation and footnote omitted).

       Later, in Brown, the Court of Criminal Appeals cited this paragraph in a

discussion regarding an applicant’s “entitlement” to a hearing on a Herrera claim.

       In Ex parte Franklin, this Court held that, before a habeas applicant is
       entitled to a hearing, the applicant must make a claim that, if true,
       establishes affirmative evidence of his innocence. Then, at the hearing, the
       trial judge assesses the witnesses’ credibility, examines the “newly
       discovered evidence,” and determines whether that “new” evidence,
       when balanced against the “old” inculpatory evidence, unquestionably
       establishes the applicant’s innocence. The habeas judge then sets out
       findings of fact and conclusions of law, and he makes a recommendation
       to this Court. Upon submission to this Court, we review the factual
       findings with deference because the habeas judge is in the best position to

5
        The Franklin case decided by the Court of Criminal Appeals arose from the conviction of Brian
Edward Franklin for aggravated sexual assault of a child in Tarrant County, while the Franklin case
decided by the Beaumont Court of Appeals arose from the conviction of Tracy Franklin for aggravated
sexual assault of a child in Jefferson County.


Ex parte Gonzalez                                                                             Page 4
       make credibility judgments. Even though deference is the prescribed
       standard, we are not bound by the habeas judge’s findings, conclusions, or
       recommendations when they are not supported by the record.

Brown, 205 S.W.3d at 546 (emphasis added) (footnotes omitted).

       It is not this Court’s place to second guess the Court of Criminal Appeals.

Nevertheless, it does not appear that that court actually subscribes to the principle that

a habeas applicant is automatically entitled to a hearing if he produces affirmative

evidence of innocence. For example, on May 19, 2010, the Court addressed a habeas

application in which the applicant alleged ineffective-assistance claims and a claim

“that he is actually innocent because the complainant recanted.” See Ex parte Culpepper,

No. WR-66,569-03, slip op. at 1 (Tex. Crim. App. May 19, 2010) (per curiam) (not

designated for publication). The Court remanded the matter to the trial court for

further proceedings, but did not require the trial court to conduct a hearing.

              Applicant has alleged facts that, if true, might entitle him to relief.
       In these circumstances, additional facts are needed. As we held in Ex parte
       Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the
       appropriate forum for findings of fact. The trial court shall order
       Applicant’s trial counsel to respond to Applicant’s claim of ineffective
       assistance of counsel. The trial court may use any means set out in TEX. CODE
       CRIM. PROC. art. 11.07, § 3(d).

             If the trial court elects to hold a hearing, it shall determine whether
       Applicant is indigent. If he is indigent and wishes to be represented by
       counsel, the trial court shall appoint an attorney to represent him at the
       hearing.

              The trial court shall first make findings of fact as to: (1) whether the
       complainant recanted and, if so, whether her recantation is credible; (2)
       whether the State made a plea offer of ten years and, if so, whether that
       offer was timely conveyed to Applicant; and (3) whether counsel
       investigated the complainant’s allegations. The trial court shall then make
       conclusions of law as to whether counsel was deficient and, if so, whether


Ex parte Gonzalez                                                                        Page 5
       his deficient performance prejudiced Applicant. Finally, the trial court
       shall make conclusions of law as to whether Applicant has established
       that he is actually innocent. The trial court shall also make any other
       findings of fact and conclusions of law that it deems relevant and
       appropriate to the disposition of Applicant’s claims for habeas corpus
       relief.

Id., slip op. at 1-2 (emphasis added) (citations omitted).

       Therefore, we hold that an evidentiary hearing is not required under article

11.072 for a Herrera claim supported by newly discovered, affirmative evidence of

innocence if the trial judge before whom the habeas application is pending also

presided over the applicant’s trial.

                                        Conclusion

       As with article 11.07, the legislature invested trial courts with broad discretion

with regard to the means by which controverted fact issues may be resolved in habeas

proceedings under article 11.072. We infer that the legislature approved of the manner

in which the Court of Criminal Appeals and other courts have construed this discretion

under article 11.07 when the legislature chose to employ similar language in article

11.072. See Cummins, 169 S.W.3d at 757 (“because the language of articles 11.07 and

11.072 are very similar, we believe that the legislature intended for article 11.072

applications to be treated much like applications submitted under article 11.07”); see also

Medrano, 67 S.W.3d at 902. Therefore, we hold that no evidentiary hearing is required

by article 11.072 to resolve controverted facts if the trial judge before whom the habeas

application is pending also presided over the applicant’s trial. See Cummins, 169 S.W.3d




Ex parte Gonzalez                                                                    Page 6
at 757; see also Davila, 530 S.W.2d at 545; Banister, 2009 WL 1160966, at *1; J.W.A., 2005

WL 2574024, at *4.

       Here, the trial court considered Gonzalez’s application, the State’s answer, the

court’s records, and the court’s personal recollection before making its findings of fact.

Nothing more is required.

       We overrule Gonzalez’s sole issue and affirm the order denying his habeas

application.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 11, 2010
Publish
[CR25]




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