                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00555-CR

                                         Robert MARTINEZ,
                                              Appellant

                                                v.
                                             The State
                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 5, Bexar County, Texas
                                      Trial Court No. 307125
                              Honorable Jason Pulliam, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 9, 2015

AFFIRMED

           Robert Martinez appeals the denial of his post-conviction application for a writ of habeas

corpus under article 11.072. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2015). We affirm

the trial court’s order.

                                            BACKGROUND

           On December 19, 2013, Martinez filed a pro se application for a writ of habeas corpus

under article 11.072 of the Texas Code of Criminal Procedure alleging that he was illegally

confined under a pending felony DWI-3rd charge in district court as a collateral consequence of
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the prior misdemeanor DWI convictions in Cause Nos. 307125 and 319377 in 1983 and 1986,

respectively. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2015). Martinez asserted that

the misdemeanor DWI convictions should be reversed on the basis of ineffective assistance of

counsel as well as other grounds. After a hearing, the trial court denied relief and Martinez

appealed.

                                             ANALYSIS

         We review a trial court’s ruling on an application for habeas corpus relief for an abuse of

discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In applying that

standard, we afford great deference to the trial court’s factual findings that are supported by the

record and to the court’s ruling on mixed questions of law and fact that turn on credibility. Ex

parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014). We review de novo mixed

questions of law and fact that do not depend on credibility and demeanor. Id.

         The trial court’s written order denying Martinez’s application for a writ of habeas corpus

states that relief is denied “because [Martinez] was not on community supervision, at the time the

application was filed as set forth in Article 11.072(2)(b).” The court subsequently issued written

findings of fact and conclusions of law in support of its order. Specifically, the court found the

following facts:

    1.    Applicant Robert Martinez was found guilty of the offense of Driving While
         Intoxicated in cause number 307125 on May 18, 1983.

             a. On May 18, 1983, applicant was sentenced to a fine of $350, three days in
                Bexar County jail, and two years of probation.

             b. A motion to Revoke Probation was issued on April 25, 1984, alleging
                violations of conditions number 1, 5, 14, and 15.

             c. A motion to Revoke Probation [hearing] was held on January 9, 1986. The
                violation numbers 1, 5, 14, and 15 were held to be “true.”



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            d. On January 9, 1986 applicant’s sentence was reformed to a $165 fine and
               10 days in the Bexar County Jail, to run concurrently with cause number
               319377.

    2. Applicant Robert Martinez was found guilty of the offense of Driving While
       Intoxicated on January 9, 1986 in cause number 319377.

            a. On January 9, 1986, applicant was sentenced in cause number 319377 to
               10 days in the Bexar County Jail and a $100 fine.

            b. Applicant was never granted probation in cause number 319377.

The trial court concluded that, based on the above findings of fact, Martinez was not entitled to

habeas corpus relief “[b]ecause Applicant’s probation was revoked in cause number 307125 and

he was given jail time without probation in cause number 317377” and only “persons who are on

community supervision that was never revoked may challenge the underlying conviction” under

article 11.072.

       The record and applicable law supports the trial court’s findings and order denying habeas

corpus relief. Martinez’s habeas application was specifically filed pursuant to article 11.072,

which provides “the 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. The statute

requires the application for habeas corpus relief to be filed with the clerk of the court in which

community supervision was imposed. Id. § 2(a). The limited record before us shows that, on May

18, 1983, in Cause No. 307125, Martinez was found guilty of misdemeanor DWI in County Court

No. 5, and that his sentence was suspended and he was placed on two years of community

supervision. As noted, Martinez filed his habeas corpus application in County Court No. 5.

Section 2(b) of article 11.072 further requires that, at the time the habeas application is filed, the

applicant “must be, or have been, on community supervision,” and the application must challenge

the legal validity of: (1) the conviction for which or order in which community supervision was
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imposed; or (2) the conditions of community supervision.” Id. art. 11.072, § 2(b). The Court of

Criminal Appeals has noted that article 11.072 provides the procedure by which “[p]ersons who

are on community supervision or who have been on a community supervision that was never

revoked may challenge the underlying conviction.” Ex parte Glass, 203 S.W.3d 856, 857 (Tex.

Crim. App. 2006) (emphasis added); see also State v. Guerrero, 400 S.W.3d 576, 582 (Tex. Crim.

App. 2013) (“Article 11.072 is ‘the exclusive means by which the district courts may exercise their

original habeas jurisdiction under Article V, Section 8, of the Texas Constitution in cases involving

an individual who is either serving a term of community supervision or who has completed a term

of community supervision.’”). The record here shows that Martinez’s probation in Cause No.

307125 was not completed, but was instead revoked on January 9, 1986 when he was sentenced

to serve ten days in jail; that ten-day sentence was to be served concurrently with the ten-day

sentence imposed in a second misdemeanor DWI case, Cause No. 319377. Thus, Martinez did not

serve a completed term of probation in either misdemeanor case, and the procedures of article

11.072 do not apply. Therefore, the trial court did not abuse its discretion in denying Martinez’s

application requesting a writ of habeas corpus under article 11.072.

       Martinez argues on appeal that the trial court should have “looked past the label” and

construed his habeas corpus application as being filed under article 11.09. See TEX. CODE CRIM.

PROC. ANN. art. 11.09 (West 2015) (providing a person confined on a misdemeanor charge may

apply for a writ of habeas corpus). However, Martinez made no such argument to the trial court,

either at the hearing when the court questioned the applicability of article 11.072, or subsequently

by motion or other pleading. See TEX. R. APP. P. 33.1(a). Moreover, the substance of Martinez’s

habeas corpus application belies the argument that it was merely “mislabeled” under article 11.072.

In the application, Martinez repeatedly states that he is seeking relief “from an order or a judgment

of conviction ordering community supervision” and that he is “attacking the legal validity of the
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conviction for which community supervision was imposed.” See TEX. CODE CRIM. PROC. ANN.

art. 11.072, §§ 1, 2(b)(1).

       Based on the foregoing reasons, we affirm the trial court’s order denying Martinez’s

application for a writ of habeas corpus.


                                             Rebeca C. Martinez, Justice

DO NOT PUBLISH




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