                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00494-CR

                              EX PARTE Richard Anthony BALDEZ

                      From the County Court at Law No. 4, Bexar County, Texas
                                       Trial Court No. 2519
                             Honorable Sarah Garrahan, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: August 20, 2014

AFFIRMED

           Richard Anthony Baldez appeals from the trial court’s order denying his post-conviction

application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (West

Supp. 2014). In a single issue, he contends the trial court erred in denying his application for writ

of habeas corpus because his appellate counsel rendered ineffective assistance in failing to inform

him of his right to file a pro se petition for discretionary review. After reviewing the trial court’s

findings, we now affirm the trial court’s order denying the habeas corpus application.

                                           BACKGROUND

           After a jury trial, Baldez was convicted of the misdemeanor offense of driving while

intoxicated; punishment was assessed at 180 days in the Bexar County jail, probated for eight

months, and a $500 fine. A panel of this court affirmed the trial court’s judgment. See Baldez v.
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State, 386 S.W.3d 324 (Tex. App.—San Antonio 2012, no pet.). A petition for discretionary

review was not filed in the Texas Court of Criminal Appeals. On June 20, 2013, Baldez filed a

pro se application for post-conviction writ of habeas corpus seeking to vacate his conviction and

requesting leave to file an out-of-time petition for discretionary review in the Texas Court of

Criminal Appeals. In his application, Baldez alleged that he received ineffective assistance of

counsel at trial and on direct appeal, and that appellate counsel was ineffective in neglecting to

notify him of his right to file a pro se petition for discretionary review.

       On June 25, 2013, the trial court denied Baldez’s habeas corpus application without holding

a hearing. In its order, the trial court stated that Baldez “is manifestly entitled to no relief”;

however, the trial court did not specify that Baldez’s habeas corpus application was denied as

frivolous. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a) (West Supp. 2014). Baldez

appealed to this court, and we abated the appeal so that the trial court could clarify its order. See

Ex parte Baldez, No. 04-13-00494-CR, - - - S.W.3d - - -, 2014 WL 60094, at *2 (Tex. App.—San

Antonio Jan. 8, 2014, no pet.). The trial court entered a clarifying order, finding from the face of

the habeas corpus application that Baldez was “manifestly entitled to no relief” and that the

application was “frivolous.” The trial court further found that no hearing was necessary and denied

all relief. We subsequently reversed the trial court’s order denying the habeas corpus application

as frivolous because it could not be determined from the face of the application that Baldez was

“manifestly entitled to no relief.” Ex parte Baldez, No. 04-13-00494-CR, - - - S.W.3d - - -, 2014

WL 1908952, at *4 (Tex. App.—San Antonio May 14, 2014, no pet.). Specifically, we noted that

the record contained no evidence “contradicting Baldez’s assertions that appellate counsel did not

inform him of his right to pursue discretionary review on his own or that he would have sought

discretionary review had counsel timely informed him of his right to do so.” Id. We remanded


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the case for the entry of a written order including findings of fact and conclusions of law on “the

issue of whether Baldez received ineffective assistance of counsel, specifically whether (1)

appellate counsel failed to notify him of his right to prepare and file a pro se petition for

discretionary review, and (2) but for that deficient performance, he would have filed a pro se

petition for discretionary review.” Id.; TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7 (West Supp.

2014).

         Upon remand, the trial court held a hearing at which Baldez, his appellate counsel, and the

attorney who assisted Baldez and appellate counsel on a pro bono basis testified. The pro bono

attorney testified that he informed appellate counsel that there were no grounds on which to pursue

a petition for discretionary review; he did not have any communication with Baldez in 2012.

Appellate counsel testified that she did inform Baldez of his right to prepare and file a pro se

petition for discretionary review. She stated that she informed him verbally, and also sent him

emails informing him that he could go forward pro se or hire an attorney for that purpose. Copies

of two emails were admitted at the hearing. Neither email confirms that counsel informed Baldez

that he could file a petition for discretionary review himself; rather, the emails reveal that counsel

advised Baldez that he could hire an attorney, at great cost, to file a writ on his behalf. Based on

counsel’s testimony that she verbally told Baldez that he could file a pro se petition for

discretionary review, the trial court found that counsel did, in fact, tell Baldez that he could file a

pro se petition for discretionary review.

                                       STANDARD OF REVIEW

         The trial judge is the sole finder of fact in an article 11.072 habeas case. Ex parte Garcia,

353 S.W.3d 785, 787 (Tex. Crim. App. 2011). As the Court of Criminal Appeals has explained,

“[t]here is less leeway in an article 11.072 context to disregard the findings of a trial court.” Id. at


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788. “[T]he appellate court affords 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.”

See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). Further, an “applicant’s live,

sworn testimony is a sufficient basis for upholding a decision to grant relief in an Article 11.072

habeas proceeding because the trial judge may believe any or all of a witness’s testimony.” Id.

When, as here, the habeas court has made findings of fact and conclusions of law in support of its

order, we review the trial court’s order for an abuse of discretion. Ex parte Skelton, No. 04–12–

00066–CR, - - - S.W. 3d - - -, 2014 WL 2198379, at *3 (Tex. App.—San Antonio May 28, 2014,

no pet.) (op. on reh’g) (citing Ex parte Garcia, 353 S.W.3d at 787-88) (adopting the abuse of

discretion standard set out in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) for appellate

review of article 11.072 habeas proceedings).

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Baldez applied for habeas relief on the grounds that he received ineffective assistance at

trial, on direct appeal, and thereafter, when appellate counsel failed to inform him of his right to

file a pro se petition for discretionary review. The only ground he challenges on appeal is the

third: that he was denied his Sixth Amendment right to effective assistance of counsel when

appellate counsel failed to notify him of his right to prepare and file a pro se petition for

discretionary review, and that but for that deficient performance, he would have filed a pro se

petition for discretionary review. Because Baldez wholly failed to brief his allegations of

ineffective assistance at trial and on direct appeal, we hold that he has waived those complaints on

appeal. See TEX. R. APP. P. 38.1(f), (h), (i).

       As to Baldez’s complaint regarding appellate counsel’s failure to inform him of his right

to file a pro se petition for discretionary review, we conclude that the trial court did not abuse its


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discretion in denying Baldez’s application for habeas corpus. Baldez had the burden of proving

appellate counsel failed to inform him of his right to file a pro se petition for discretionary review.

See Guerrero, 400 S.W.3d at 583 (article 11.072 applicant has the burden to prove by a

preponderance of the evidence that he is entitled to relief). At the habeas hearing, appellate counsel

testified that she verbally informed Baldez of his right to file a pro se petition for discretionary

review. Based on counsel’s affirmation, the trial court, who was in the best position to observe

the witness’s credibility and demeanor, found that appellate counsel had in fact informed Baldez

of his right to file a pro se petition for discretionary review. Mindful of the deferential standard of

review, and that the trial court is the sole fact finder in an 11.072 habeas case, we cannot conclude

that the trial court abused its discretion in denying the application for writ of habeas corpus. See

Ex parte Garcia, 353 S.W.3d at 787; Guerrero, 400 S.W.3d at 583. Accordingly, we overrule

Baldez’s issue on appeal, and affirm the trial court’s order denying the application for writ of

habeas corpus.

                                                       Rebeca C. Martinez, Justice


DO NOT PUBLISH




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