Opinion issued February 25, 2014




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-13-00958-CR
                          ———————————
          EX PARTE CRESENCIO ZANTOS-CUEBAS, Appellant



                     On Appeal from the County Court
                          Grimes County, Texas
                       Trial Court Case No. 24,581


                                OPINION

      Appellant Cresencio Zantos-Cuebas was charged by information with the

misdemeanor offense of terroristic threat towards a person with whom he had a

dating relationship. See TEX. PENAL CODE ANN. § 22.07 (West 2011). Appearing

before the constitutional county court without counsel, he pleaded guilty. The
county court deferred adjudication, imposed a fine of $400, and placed him on

community supervision.

      Zantos-Cuebas is not a United States citizen. After being placed on

community supervision, U.S. Immigration and Customs Enforcement detained him

and initiated deportation proceedings. He filed an application for writ of habeas

corpus with the constitutional county court, praying that his plea and the court’s

order placing him on community supervision be vacated. As justification, he

claims that he does not understand English, and accordingly his rights were not

adequately explained to him, to the effect that he did not knowingly and

intelligently waive his constitutional rights in conjunction with entering his plea of

guilty. The court denied the relief requested and held that the application was

frivolous. Zantos-Cuebas now appeals, arguing that his guilty plea was

involuntary.

      We reverse the determination that the habeas corpus petition was frivolous

because the court could not determine from the face of the application that Zantos-

Cuebas was “manifestly entitled to no relief.” Accordingly, we remand the cause

for the entry of a written order including findings of fact and conclusions of law.

TEX. CRIM. PROC. CODE ANN. art. 11.072, § 7(a).




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                                     Background

      Though not a United States citizen, Zantos-Cuebas has lived in this country

since 2002. He was charged in the constitutional county court of Grimes County

with the misdemeanor offense of terroristic threat. Although there is no reporter’s

record documenting the plea entered in the case, the clerk’s record of the habeas

corpus proceeding is before us. It contains two English-language documents

recording Zantos-Cuebas’s plea of guilty.

      The first document is titled “Written Admonishments with Defendant’s

Written Waiver of Rights and Stipulation of Evidence.” The first two pages of the

document recite that after the case was called to trial, Zantos-Cuebas appeared in

person, waived his right to counsel, and “The Court proceeded to admonish the

Defendant pursuant to Art. 26.13 T.C.C.P. . . . .” The document noted the

consequences of a plea of guilty, including the punishment range for a Class A

misdemeanor. These written admonishments included a paragraph that stated:

“CITIZENSHIP: If you are not a citizen of the United States of America, a plea

of guilty or nolo contendere to this offense may result in your deportation,

exclusion from entry into this country, or the denial of naturalization under federal

law.” The document also listed admonishments of various constitutional rights,

such as the right to counsel, the right to a jury trial, the right to confront witnesses,




                                           3
and the right against self-incrimination. The bottom of the second page was dated

and signed by the county judge.

      The following page, bearing the page number 3 at the bottom of the page,

bore the heading: “Stipulations of Evidence, Waiver of Rights and Judicial

Confession.” In an apparent reference to the first two pages described above, the

first sentence of page 3 reads: “Having all the forgoing fully explained by the

Court and after having the Court admonish the Defendant of the consequences of

the waiver and plea, the Defendant hereby waives the above rights and hereby

enters a plea of GUILTY/NOLO CONTENDERE and further makes the

following judicial admissions . . . .” It proceeded to identify Zantos-Cuebas as the

defendant and the charge against him; it stated” “It is my desire to enter a plea of

GUILTY in the foregoing named and numbered cause. In doing so I wish to waive

the following: 1. My right to a trial by jury; 2. The appearance, cross examination,

and confrontation of witnesses . . . .” Page 4 was signed and sworn to by Zantos-

Cuebas, signed by the prosecutor, and signed by the county judge.

      The other relevant document is titled “Order Deferring Adjudication of Guilt

and Placing Defendant on Community Supervision” and is signed by Zantos-

Cuebas and the county judge. It included the following recital: “The defendant was

admonished by the Court of the consequences of said plea yet the defendant

persisted in pleading as aforesaid.”


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          In his habeas corpus petition, Zantos-Cuebas alleged that he does not “speak

or write the English language.” He averred that at the time he pleaded guilty, he

was accompanied by a seventeen-year-old friend named Leslie Sanchez, who came

along to act as an interpreter. Sanchez is not, however, a licensed court interpreter.

See TEX. GOV’T CODE ANN. § 57.001 (West 2013). Among other things, Zantos-

Cuebas alleges that nobody translated the admonishments about his constitutional

rights.

          Pursuant to his plea of guilty, Zantos-Cuebas was placed on deferred

adjudication community supervision. He was later detained and subjected to

deportation proceedings by U.S. Immigration and Customs Enforcement. He

sought to withdraw his plea of guilty by filing an application for habeas corpus

relief, supported by affidavits. See TEX. CRIM. PROC. CODE ANN. art. 11.072, § 2(a)

(West 2005). Without holding a hearing, the county judge denied his application,

handwriting on the last page of the exhibits: “I do not deal with anything about

citizenship, deportation or anything involving immigration.” The county judge

signed this statement, as well as a separate typed order denying habeas corpus

relief and finding the application to be frivolous. See id. art. 11.072, § 7(a). The

judge did not enter findings of fact or conclusions of law.

          This appeal followed. See id. art. 11.072, § 8.




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                                       Analysis

      Zantos-Cuebas argues that the trial court abused its discretion by denying his

application for habeas corpus relief. In his petition to the trial court and in his brief

on appeal, Zantos-Cuebas relied principally on Padilla v. Kentucky, 559 U.S. 356,

130 S. Ct. 1473 (2010), to argue that his plea was not entered voluntarily and

knowingly because the trial judge did not admonish him of the immigration

consequences of his plea. He also argued in a more general fashion that his plea

was not voluntary because he was not made aware that he was waiving other

constitutional rights, such as his right to a jury trial. He claims that any such

admonitions presented by the court were not translated by Sanchez.

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

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

“appellate courts review de novo those ‘mixed questions of law and fact’ that do

not depend upon credibility and demeanor.” Ex parte Peterson, 117 S.W.3d 804,

819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219

S.W.3d 335 (Tex. Crim. App. 2007); see also Ex Parte Weinstein, No. WR–

78,989–01, 2014 WL 300802, at *5 (Tex. Crim. App. Jan. 29, 2014); Ex parte

Pritzkau, 391 S.W.3d 185, 186 (Tex. App.—Beaumont 2012, no pet.). “[I]f the

court’s application of the law to the facts does not rest on factual findings, it is




                                           6
afforded no deference and we review de novo.” Ex parte Roberts, 409 S.W.3d 759,

762 (Tex. App.—San Antonio 2013, no pet.).

       Article 11.072 of the Code of Criminal Procedure “establishes 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. CRIM. PROC. CODE ANN.

art. 11.072, § 1. Those seeking relief pursuant to article 11.072 are required to file

an application for writ of habeas corpus with “the clerk of the court in which

community supervision was imposed.” Id. art 11.072, § 2(a). “At the time the

application is filed, the applicant must be, or have been, on community

supervision,” and the application must challenge the legal validity of “the

conviction for which or order in which community supervision was imposed . . . .”

Id. art. 11.072, § 2(b).

       The trial court receiving the application is required to enter a written order

granting or denying the relief sought. Id. art. 11.072, § 6(a). “In making its

determination, the court may order affidavits, depositions, interrogatories, or a

hearing, and may rely on the court’s personal recollection.” Id. art. 11.072, § 6(b).

       Section 7 of article 11.072 establishes two procedures by which a trial court

may dispose of the application. Id. art. 11.072, § 7(a). The first procedure allows

for summary dismissal of facially frivolous applications. Id. It applies when,


                                          7
looking solely to the face of the application and attached documents, the

application is determined to be frivolous: “If the court determines from the face of

an application or documents attached to the application that the applicant is

manifestly entitled to no relief, the court shall enter a written order denying the

application as frivolous.” Id. Otherwise, a second procedure applies, and the trial

court cannot rule on the application without entering findings of fact and

conclusions of law: “In any other case, the court shall enter a written order

including findings of fact and conclusions of law.” Id.

      In this case, the trial court entered a written order denying the application as

frivolous and did not enter written findings of fact or conclusions of law. Our

analysis therefore begins by considering whether the court erred in “determin[ing]

from the face of [the] application or documents attached to the application” that

Zantos-Cuebas was “manifestly entitled to no relief” such that his application

should be declared “frivolous.” See id.

      Determining from the face of an application for habeas corpus and

accompanying documents whether the applicant is “manifestly entitled to no

relief” does not involve making findings of fact or evaluating the credibility of

witnesses. Any analysis of whether such a claim has any facially arguable basis

does not call on a court to determine the truth or falsity of factual allegations made

therein but only to apply the law to the facts as depicted in the application and


                                          8
accompanying documents. Therefore, a trial court’s determination that an

application is frivolous is properly reviewed de novo. See Peterson, 117 S.W.3d at

819; Roberts, 409 S.W.3d at 762.

      When a criminal defendant pleads guilty, he waives several constitutional

rights, such as the right to a trial by jury, the right to confront the witnesses against

him, and his Fifth Amendment privilege against self-incrimination. Davison v.

State, 405 S.W.3d 682, 686 (Tex. Crim. App. 2013). “Waivers of constitutional

rights not only must be voluntary but must be knowing, intelligent acts done with

sufficient awareness of the relevant circumstances and likely consequences.”

Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970). It follows

that in order for a guilty plea to be valid, “the defendant must have an actual

awareness of . . . the constitutional rights and privileges that he necessarily

relinquishes.” Davison, 405 S.W.3d at 686. In other words, he must have “a full

understanding of what the plea connotes and of its consequence.” Boykin v.

Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1712 (1969).

      In Aleman v. State, 957 S.W.2d 592 (Tex. App.—El Paso 1997, no pet.), the

defendant, who spoke only Spanish, pleaded guilty at a group arraignment to the

charge of driving while intoxicated. 957 S.W.2d at 593. He was convicted and later

moved for a new trial on the grounds that the absence of an interpreter rendered his




                                           9
plea involuntary. Id. The trial court denied his motion for new trial, but the El Paso

court reversed. Id. at 594.

      The court pointed out that while there was some provision for Spanish–

English interpretation at the group proceeding when the appellant entered his plea,

such translation facilities were inadequate. Id. Although a court interpreter had

been present, her sole task was to assist the group of Spanish-speaking defendants

in completing a form (composed in poorly-written Spanish) entitled “Renuncia de

los Derechos por Demandado Criminal sin Representation,” which in English

translates as “Waiver of the Rights of a Criminal Defendant without

Representation.” Id. at 593 & n.2. The defendant told the interpreter that he could

not afford an attorney but was dissatisfied with the jail time recommendation

contained in the plea agreement. Id. at 593–94. The interpreter, however, made no

effort to communicate the defendant’s position to the trial judge, and these

concerns did not otherwise reach his ears. Id. at 594.

      When the Aleman defendant entered his plea of guilty, the court interpreter

was no longer present and the county prosecutor doubled as translator. Id. The

prosecutor was negotiating plea bargains with appellant and the other Spanish-

speaking defendants as he was translating the court’s explanation of their due

process rights. Id. Given the failure of the prosecutor or court interpreter to relay




                                         10
the defendant’s concerns about his plea to the trial court, the court of appeals ruled

that his plea had been involuntary. Id.

      The Aleman court recognized that adhering to the requirements of the Code

of Criminal Procedure with respect to translation services would have averted the

violation of the defendant’s constitutional rights. Id. The Code requires that

“[w]hen a motion for appointment of an interpreter is filed by any party or on

motion of the court, in any criminal proceeding, it is determined that a person

charged or a witness does not understand and speak the English language, an

interpreter must be sworn to interpret for the person charged or the witness.” TEX.

CODE CRIM. PROC. ANN. art. 38.30(a) (West 2005). Moreover, the trial judge has an

affirmative obligation to appoint a translator when he is aware that a defendant has

a problem understanding the English language. Garcia v. State, 149 S.W.3d 135,

145 (Tex. Crim. App. 2004). Thus, absent a knowing and voluntary waiver made

on the record, “the judge has an independent duty to implement this right,”

regardless of whether the matter is raised by the parties. Id. A failure to do so

results not only in a statutory violation but can render a defendant’s plea

constitutionally involuntary, Aleman, 957 S.W.2d at 594, or violate his right to

confront the witnesses against him, Garcia, 149 S.W.3d at 145.

      Zantos-Cuebas’s petition for habeas corpus alleged that he speaks only

Spanish and that his amateur interpreter, Sanchez, interpreted some, but not all of,


                                          11
the proceedings. He pleaded that “Lesli Sanchez did not translate the

admonishments of pleading guilty to the offense and the resulting immigration

consequences of a plea. Lesli Sanchez did not translate Applicant’s waiver of

constitutional rights, stipulation of evidence, and judicial confession to appellant.”

He therefore claimed that his plea was entered involuntarily as he had not been

admonished of the immigration consequences of his plea or the constitutional

rights that he was waiving. He attached affidavits supporting his claims from

himself and Sanchez. In her affidavit, Sanchez described what happened at the

court as follows:

      During court, I was given paperwork for Cresencio [Zantos-Cuebas]
      to sign before the judge called his case. The paperwork stated how he
      would do probation, community service, payments to pay off what he
      pleaded guilty for. I did not translate or explain anything about
      citizenship, deportation, or anything involving immigration to
      Cresencio or that he could be in trouble with immigration. After I
      translated the paperwork given to me, Cresencio signed the papers but
      I did not translate anything about immigration or deportation.

      When the judge called Cresencio’s case, Cresencio and I went up to
      the Judge. I translated for Cresencio in front of the Judge. The Judge
      did not mention anything having to do with immigration matters or
      consequences. The Judge did tell Cresencio what he was charged
      with. The judge did not ask Cresencio about his immigration status
      during her questioning, Once Cresencio declared himself guilty, the
      Judge gave him nine whole months of probation. After I translated the
      paperwork given to me, Cresencio signed the papers but I did not
      translate anything about immigration or deportation.

In his own affidavit, which was translated into English, Zantos-Cuebas stated:



                                         12
      I was representing myself in this case. I do not speak or write the
      English language. I speak and write Spanish. Lesli Sanchez was my
      interpreter in this case on July 18, 2013.

      I would have never pleaded guilty to the charges and agreed to
      deferred adjudication if I had known that it would affect my
      immigration status. I would have insisted on going to trial if I had
      known that pleading guilty could affect my immigration status.

      I didn’t know that I was waiving my rights when I appeared in court. I
      didn’t know I was waiving my right to fight the case. If I had known
      that I was waiving all of my rights by pleading guilty I wouldn’t have
      pleaded guilty.

      Lesli Sanchez did not tell me anything regarding immigration or
      regarding the rights I would waive by pleading guilty.

      On their face, the application and affidavits submitted by Zantos-Cuebas

indicate that he entered his plea without an awareness of the constitutional rights

he was waiving thereby. The application and affidavits purport to show that

Zantos-Cuebas does not speak English, and that he relied on a 17-year-old friend to

translate for him in the courtroom. Under the facts as alleged, the court would have

been obliged to appoint a translator for the proceedings. The Court of Criminal

Appeals has been emphatic that the mere provision of some translation services or

the mere presence of a bilingual speaker is not the equivalent of appointing the

sworn interpreter that the law requires. See Garcia, 149 S.W.3d at 142–43;

Baltierra v. State, 586 S.W.2d 553, 559 n.11 (Tex. Crim. App. 1979) (deeming it

insufficient to appoint bilingual counsel for defendant). Indeed, the Garcia court

stressed that a bilingual person is not necessarily competent to translate legal
                                        13
proceedings because courtroom interpretation is a sophisticated art unto itself: it

demands prompt judgment, a ready memory, a discriminating ear, and an extensive

vocabulary—including legal terms and street slang. Garcia, 149 S.W.3d at 143.

      Zantos-Cuebas’s application and the affidavits attached thereto set out a case

that he had “difficulty understanding English,” and that Sanchez translated for him

“in front of” the trial judge. See id. at 145. This is direct evidence of the falsity of

the admonitions and stipulations written in English and signed by Zantos-Cuebas

which suggest otherwise. If true, under such circumstances, the court would have

been “required to ensure that the trial proceedings were translated into a language

which [he] underst[ood].” Id. Zantos-Cuebas’s claim—that his plea was

involuntary and unintelligent because it was not made with awareness of the

constitutional rights he was waiving—is therefore a claim with a facially arguable

basis in law and fact. See Davison, 405 S.W.3d at 686–87; Aleman, 957 S.W.2d at

594; cf. United States v. Perez, 918 F.2d 488, 490 (5th Cir. 1990) (“An adequate

understanding of the English language is a threshold requirement for a voluntary

plea.”). The face of the application and affidavits do not indicate that Zantos-

Cuebas was “manifestly entitled to no relief.” Accordingly, it was error for the trial

judge to find that the application was frivolous. See TEX. CRIM. PROC. CODE ANN.

art. 11.072, § 7(a).




                                          14
      In reaching this conclusion, we are not unmindful of the records of Zantos-

Cuebas’s guilty plea contained in the clerk’s record, which recite that he was

admonished of the rights he was waiving and that his plea was entered voluntarily

and knowingly. Nonetheless, our determination that the application was not

frivolous is based strictly on a review of the face of the application and the

accompanying affidavits. See id. On remand, the trial court may properly consider

the records of the plea proceeding and its own recollection. See id. art. 11.072,

§ 6(b). However, in order to comply with article 11.072, a trial court that relies on

such evidence collateral to the face of the application must accompany its written

ruling with findings of fact and conclusions of law. See id. art. 11.072, § 7(a).

      In its response, the State argues that the affidavits of Sanchez and Zantos-

Cuebas are not properly part of the record on appeal. It relies upon Rule 34.5 of the

Texas Rules of Appellate Procedure and State v. Guerrero, 400 S.W.3d 576 (Tex.

Crim. App. 2013), in support of this proposition. However, nothing corresponding

to such a limitation appears in the referenced appellate rule. See TEX. R. APP.

P. 34.5. Similarly, the State’s reliance on Guerrero is mistaken. Guerrero

established that “sworn pleadings are an inadequate basis upon which to grant

relief” in a habeas case. 400 S.W.3d at 583 (citing Ex parte Garcia, 353 S.W.3d

785, 789 (Tex. Crim. App. 2011)). Here, Zantos-Cuebas did not submit verified

pleadings but rather attached affidavits in support of his request for relief.


                                          15
Therefore, the quoted proposition from Guerrero is inapposite. Furthermore, there

is nothing irregular about the use of affidavits to accompany an application for writ

of habeas corpus under article 11.072. See id. (contemplating that evidence in a

proceeding under article 11.072 will be presented at a live hearing or through

affidavits); Ex parte Fassi, 388 S.W.3d 881, 887 (Tex. App.—Houston [14th Dist.]

2012, no pet.) (“[T]he court may consider affidavits attached to the application and

the State’s response.”); Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Ft.

Worth 2005, no pet.) (“[W]e find nothing in article 11.072 prohibiting the trial

court from considering evidence filed with the application or with the State’s

response.”).

      In light of our holding that the trial court erred in denying the application as

frivolous, we will remand the case to the trial court for further proceedings. See

TEX. R. APP. P. 31.3 (“The appellate court will render whatever judgment and make

whatever orders the law and the nature of the case require.”). The statutory

procedure contemplates that a trial court will summarily dispose of a habeas corpus

application found to be frivolous on its face with a written order to that effect. See

TEX. CRIM. PROC. CODE ANN. art. 11.072, § 7(a). If, solely from the face of the

application, it cannot be judged frivolous, the trial court should then consider the

merits of the application in light of the full range of evidence before it. See id.

art. 11.072, §§ 6(b), 7(a). (“In making its determination, the court may order


                                         16
affidavits, depositions, interrogatories, or a hearing, and may rely on the court’s

personal recollection.”). Having done so, its written order disposing of the

application must include findings of fact and conclusions of law. Id. art. 11.072,

§ 7(a). Express findings of fact are of particular importance in the article 11.072

context since trial judges deciding applications are allowed to “rely on the court’s

personal recollection,” the contents of which would otherwise be untraceable on

the written record. See id. art. 11.072, § 6(b).

      In summary, it is necessary to remand this case for further proceedings so

that the procedures specified by the Code of Criminal Procedure may be followed.

See TEX. R. APP. P. 43.3; Ex parte Arjona, 402 S.W.3d 312, 319 (Tex. App—

Beaumont 2013, no pet.) (“An appellate court may remand a habeas proceeding to

the trial court if the factual record has not been sufficiently developed.”); Ex parte

Enriquez, 227 S.W.3d 779, 784–85 (Tex. App.—El Paso 2005, pet. ref’d)

(remanding case so that trial court, which neither made written finding that habeas

application was frivolous nor entered findings of fact and conclusions of law, could

comply with statute); cf. Ex Parte Baldez, No. 04–13–00494–CR, 2014 WL 60094,

at *2 (Tex. App.—San Antonio Jan. 8, 2014, no pet. h.) (abating appeal and

ordering trial court to comply with statute by either entering findings of fact and

conclusions of law or finding application frivolous on its face).




                                           17
      Our conclusion that the application must be remanded to the trial court

renders it unnecessary at this time for us to address Zantos-Cuebas’s argument that

Padilla entitles him to relief.

                                    Conclusion

      We reverse and remand the case to the trial court for the entry of a written

order including findings of fact and conclusions of law.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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