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



                            DISSENTING OPINION

      I respectfully dissent. I disagree with the majority’s understanding and

application of the appropriate standard of review in this appeal from the denial of

an application for a writ of habeas corpus. Finding no grounds for issuance of a

writ of habeas corpus in this case, no grounds for vacating the underlying order of
the trial court deferring adjudication and placing appellant, Cresencio Zantos-

Cuebas, on community supervision, as sought by appellant, and no legal authority

that supports the ruling of the majority reversing the trial court’s order and

remanding the case for “entry of a written order including findings of fact and

conclusions of law,” I would affirm the trial court’s order denying habeas corpus

relief.

                                   Background

          Appellant appeared without counsel before the County Court of Grimes

County and pleaded guilty to the misdemeanor offense of terroristic threat towards

a person with whom he had a dating relationship. The clerk’s record reflects that

the court admonished appellant about his constitutional rights in accordance with

Code of Criminal Procedure article 26.13. See TEX. CODE CRIM. PROC. ANN. art.

26.13(a), (d) (Vernon Supp. 2013) (stating required information about which trial

court must admonish defendant, including fact that guilty plea may have

immigration consequences, and providing that admonishments may be made orally

or in writing).     The admonishments, printed in English and entitled “Written

Admonishments with Defendant’s Written Waiver of Rights and Stipulation of

Evidence,” recited that, after the case was called to trial, appellant appeared in

person and waived his right to counsel and “[t]he Court proceeded to admonish the

Defendant pursuant to Art. 26.13 T.C.C.P. . . .”

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      The admonishments then recited the consequences of a guilty plea, including

the punishment range for a Class A misdemeanor. Critically, the 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 admonishments also listed appellant’s constitutional rights, including the right

to counsel, the right to appointment of counsel at no cost to him if he could not

afford counsel, the right to a jury trial, the right to confront witnesses, the right not

to incriminate himself, and the right to have time to prepare for trial.            The

admonishments were dated and signed by the trial court.

      The following document, titled “Stipulations of Evidence, Waiver of Rights

and Judicial Confession,” was signed by appellant. It stated,

      Having all the foregoing 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 . . . .
The document identified appellant as the defendant and the charge against him as

“Terroristic Threat-F[amily] V[iolence].” It then stated,

      It is my desire to enter a plea of GUILTY/NOLO CONTENDERE
      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 . . . .


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The “Stipulations of Evidence, Waiver of Rights and Judicial Confession” recited

appellant’s acknowledgement that he understood his right to counsel and was

waiving it.        It also recited his consent to the use of documentary evidence,

including the stipulations, as testimony in support of the judgment of the court.

The document stated, “I have read the foregoing and had the same explained to me

by the Judge of this Court” and “I enter my plea uninfluenced by any consideration

of fear . . . .”    The “Stipulations of Evidence, Waiver of Rights and Judicial

Confession” was signed and sworn to by appellant, signed by the prosecutor, and

signed by the trial court.

        The trial court accordingly entered an “Order Deferring Adjudication of

Guilt and Placing Defendant on Community Supervision.” This order 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.”

The order was signed by both appellant and the trial court. The trial court placed

appellant on deferred adjudication community supervision and imposed a $400

fine.

        Appellant is not a United States citizen. After entry of the trial court’s order

imposing community supervision, United States Immigration and Customs

Enforcement officials detained him and initiated removal proceedings.




                                            4
      He subsequently filed an application for habeas corpus relief in the trial

court. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 2(a) (Vernon Supp. 2013)

(permitting application for writ of habeas corpus challenging legal validity of order

in which trial court imposes community supervision). He contended that his guilty

plea was involuntary because he does not understand English, and, therefore, his

constitutional rights were not adequately explained to him, and he did not

knowingly and intelligently waive those rights when he pleaded guilty. He sought

to withdraw his guilty plea and prayed that the trial court vacate its order placing

him on community supervision.

      Specifically, in his application for habeas corpus relief, appellant alleged for

the first time in the proceedings that he does not “speak or write the English

language.” He provided his sworn declaration stating that, at the time he pleaded

guilty, he was accompanied by a seventeen-year-old friend, Lesli Sanchez, who

acted as his interpreter.     However, he alleged that nobody translated the

admonishments about his constitutional rights that he signed and that Sanchez did

not translate anything concerning the immigration consequences of his guilty plea.

He also provided Sanchez’s affidavit, which supported his allegations.

      On a filed copy of Sanchez’s affidavit, the trial court wrote, “I do not deal

with anything about citizenship, deportation or anything involving immigration.”

The court signed this statement and entered a separate order denying habeas corpus

                                          5
relief upon finding appellant to be “manifestly entitled to no such relief” and his

petition for habeas corpus to be frivolous. See TEX. CODE CRIM. PROC. ANN. art.

11.072, § 7(a).

       The trial court’s written order denying appellant’s application for writ of

habeas corpus stated,

             On this date, the Court considered Defendant’s application for
       Writ of Habeas Corpus.
             The Court finds that the Applicant is manifestly entitled to no
       such relief and that such Application is frivolous and should be
       denied.
             IT IS THEREFORE ORDERED that                         Defendant’s
       Application for Writ of Habeas Corpus is DENIED.
             IT IS ORDERED THAT all relief requested in this case not
       expressly granted is denied.

The majority now reverses this order and remands the case “for the entry of a

written order including findings of fact and conclusions of law.” I would affirm

the trial court’s order.

                                      Analysis

       A. Standard of Review of Habeas Corpus

       A trial court’s ruling on an application for habeas corpus is reviewed for a

clear abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.

2006). A trial court abuses its discretion if it acts without reference to any guiding

rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). The appellate
                                          6
court “must review the record evidence in the light most favorable to the trial

court’s ruling and must uphold that ruling absent an abuse of discretion.” Kniatt,

206 S.W.3d at 664. In reviewing the trial court’s order denying habeas corpus

relief, the appellate court affords “almost total deference to the judge’s

determination of the historical facts that are supported by the record, especially

when the fact findings are based on an evaluation of credibility and demeanor.” Ex

parte Wilson, 171 S.W.3d 925, 928 (Tex. App.—Dallas 2005, no pet.); see also Ex

parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet. ref’d) (“This

deferential review applies even when the findings are based on affidavits rather

than live testimony.”); Phuong Anh Thi Le v. State, 300 S.W.3d 324, 327 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (holding that, in reviewing trial court’s

ruling on habeas corpus petition, reviewing court must defer to all of trial court’s

implied factual findings supported by record). The appellate court “will sustain the

lower court’s ruling if it is reasonably supported by the record and is correct on any

theory of law applicable to the case.” State v. Dixon, 206 S.W.3d 587, 590 (Tex.

Crim. App. 2006).

      One who seeks habeas corpus relief based on an involuntary guilty plea has

the burden of showing that his plea was involuntary by a preponderance of the

evidence. Kniatt, 206 S.W.3d at 664. “Waivers of constitutional rights not only

must be voluntary but must be knowing, intelligent acts done with sufficient

                                          7
awareness of the relevant circumstances and likely consequences.”             Brady v.

United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970). “[T]he record must

affirmatively disclose that a defendant who pleaded guilty entered his plea

understandingly and voluntarily.” Id. at 747 n.4, 90 S. Ct. at 1468 n.4. A person

attacking the validity of his prior guilty plea as that plea is reflected in the written

judgment “bears the burden of defeating the normal presumption that recitals in the

written judgment are correct. Those written recitals are ‘binding in the absence of

direct proof of their falsity.’” State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim.

App. 2013) (quoting Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App.

1984)). A defendant’s sworn representation in a plea proceeding that his waiver of

counsel and guilty plea are knowing, intelligent, and voluntary “constitute[s] a

formidable barrier in any subsequent collateral proceedings,” such as an

application for habeas corpus. Kniatt, 206 S.W.3d at 664 (quoting Blackledge v.

Allison, 431 U.S. 63, 73–74, 97 S. Ct. 1621, 1629 (1977)).

      B. Application of Standard of Review

      Here, appellant signed admonishments at the plea proceeding which stated

that the rights he was waiving had been “fully explained by the Court.” These

included his acknowledgement that he knew that one of the consequences of his

waiver and guilty plea was that his plea could result in his removal from the

country if he was not a citizen. Appellant knew he was not a citizen. He gave no

                                           8
indication to anyone that he did not understand what he was signing. To the

contrary, he expressly acknowledged that he understood his rights to counsel and

to a trial by jury, that he had read the stipulations and consented to their use as

evidence against him, that they had been explained to him by the trial court, and

that he had entered his plea without “any consideration of fear.” Appellant swore

to these stipulations and acknowledgements and was placed on community

supervision pursuant to the trial court’s order deferring adjudication. He then

repudiated these acknowledgements in his habeas corpus petition.

      There is no indication whatsoever in the record that at any point during the

plea proceedings appellant complained that he did not know what he was signing,

that he did not understand the admonishments he received or the consequences of

his plea, or that he sought the appointment of counsel, a court-appointed

interpreter, or more time to make a decision concerning his plea. Nothing in the

record of appellant’s plea proceedings reflects his purported inability to speak,

read, and understand English; nothing reflects any objection made by appellant to

the proceedings; and appellant’s signature on the plea paperwork acknowledges

that the court “fully explained,” inter alia, that a guilty plea might result in his

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

under federal law. To the contrary, the “Stipulations of Evidence, Waiver of

Rights and Judicial Confession” expressly reflect appellant’s understanding at the

                                         9
time he entered his plea that he was entitled to counsel, that his plea was not

coerced, and that he understood that, as a result of his guilty plea, he could face

removal from the country. Thus, the record affirmatively reflects that appellant

was fully accorded his rights and, with full understanding of what he was doing,

voluntarily chose to plead guilty to the offense of terroristic threat rather than face

trial before a jury.

       The only evidence appellant provided to the trial court to support his claim

that at the time of his guilty plea he did not speak or read English and did not know

what he was signing consisted of the two after-the-fact affidavits attached to his

habeas corpus application: his own self-serving sworn declaration and the affidavit

of a friend, Sanchez, who accompanied him to trial to interpret for him. Appellant

and Sanchez both aver that Sanchez did not translate or explain the admonishments

and waivers appellant signed.

       I would hold that appellant entirely failed to overcome the barrier of his

sworn waivers and acknowledgements. The written recitals appellant signed “are

binding in the absence of direct proof of their falsity.” Guerrero, 400 S.W.3d at

583; see also Kniatt, 206 S.W.3d at 664 (stating that defendant’s sworn

representation that his waiver of counsel and guilty plea are knowing, intelligent,

and voluntary constitutes “a formidable barrier in any subsequent collateral

proceeding”).

                                          10
      Here, the only evidence that these waivers and stipulations were false was

appellant’s own sworn declaration that he did not and does not understand English

and Sanchez’s affidavit, both of which were attached to his application for habeas

corpus. Trial courts have discretion to discount factual assertions in an affidavit by

an interested party that could not have been readily controverted. See Charles v.

State, 146 S.W.3d 204, 210 (Tex. Crim. App. 2004), superseded by rule on other

grounds as stated in State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007).

Moreover, trial courts generally are not required to believe factual statements

contained within an affidavit, even when those statements are uncontradicted by

other affidavits. See Shanklin v. State, 190 S.W.3d 154, 167 (Tex. App.—Houston

[1st Dist.] 2005, pet. dism’d) (holding so in motion-for-new-trial context); see also

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (stating, in motion to

suppress context, “[T]he judge may believe or disbelieve all or any part of a

witness’s testimony, even if that testimony is not controverted”).

      Appellant’s and Sanchez’s after-the-fact, out-of-court averrals about

appellant’s ability to understand the proceedings and waivers he signed were

untimely factual statements in appellant’s self-interest. Even though the State did

not offer affidavits to controvert appellant’s and Sanchez’s affidavits, it was within

the trial court’s discretion to disbelieve the assertions contained in those affidavits

that appellant does not read or speak English. See Charles, 146 S.W.3d at 210;

                                          11
Shanklin, 190 S.W.3d at 167; see also Phuong Anh Thi Le, 300 S.W.3d at 327

(holding that appellate court must defer to all implied factual findings supported by

record).   The trial court, and not this Court, is in the best position to have

determined whether appellant understood what he was signing at the time he

entered his plea. See Ex parte Wilson, 171 S.W.3d at 928 (requiring almost total

deference to trial court’s determination of historical facts); see also Ex parte Mello,

355 S.W.3d at 832 (applying deferential review to findings based on affidavits).

      I agree with the trial court that appellant has failed to carry his burden of

showing by a preponderance of the evidence that his guilty plea was involuntary

because he did not understand the admonishments he signed, he did not understand

that his judicial confession could subject him to removal proceedings, and he was

coerced into waiving his constitutional rights and pleading guilty to the offense

with which he was charged. See Guerrero, 400 S.W.3d at 583; Kniatt, 206 S.W.3d

at 664. The record reflects that appellant acknowledged by his signature that he

was warned of the potential for adverse immigration consequences of his plea both

in writing and by the trial court, and he acknowledged that he had an interpreter of

his choice present to translate anything in the admonishments and waivers that he

did not understand. He did not seek to postpone the proceedings because of his

lack of understanding, and he did not request that the trial court appoint a certified




                                          12
interpreter to translate the admonishments for him. 1 The record reflects that he did

not indicate his dissatisfaction with Sanchez’s alleged translation of his plea

paperwork until the habeas corpus proceeding. In my view, appellant did not

surmount the barrier posed by his sworn representation that his waiver of counsel

and guilty plea were knowing, intelligent, and voluntary. See Kniatt, 206 S.W.3d

at 664–65. I would, therefore, hold appellant to the statements in the waivers and

stipulations made at the time of his guilty plea as binding. See Guerrero, 400

S.W.3d at 583.

      I would also hold that the trial court correctly denied appellant’s petition for

habeas corpus relief on the ground that he was “manifestly entitled to no such

relief” and found it frivolous. I would overrule appellant’s sole issue.

      C. Majority’s “De Novo” Standard of Review

      The majority, however, applies a different understanding of the appropriate

standard of review of habeas corpus orders and, accordingly, discounts the effect

of the waivers and stipulations signed by appellant. The majority opines,

      “If the court determines from the face of an application [for habeas
      corpus] 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.” Otherwise, a second procedure

1
      The majority opines that Sanchez is not a licensed court interpreter. Slip Op. at 5
      (citing TEX. GOV’T CODE ANN. § 57.001 (Vernon 2013) (defining “licensed court
      interpreter”)). Neither appellant nor the majority makes any legal argument that a
      licensed court interpreter is required to translate for a criminal defendant.
      Therefore, this issue is not properly before the Court. See TEX. R. APP. P. 38.1(i).
                                           13
      applies, and the trial court cannot rule on the application without
      entering findings of fact and conclusions of law . . . .

Slip Op. at 8 (quoting TEX. CODE CRIM. PROC. ANN. art. 11.072, §7(a)). In the

majority’s view, this case falls in the “other” category because, upon conducting its

own de novo review of the application—rather than reviewing the trial court’s

order for an abuse of discretion, as required by Texas law—it disagrees with the

trial court’s finding that appellant was manifestly not entitled to habeas corpus

relief and that his application was frivolous.

      In applying its de novo standard of review and reaching its conclusion, the

majority does not address whether the trial court abused its discretion in light of

evidence in the record. See Kniatt, 206 S.W.3d at 664 (setting out discretionary

standard of review of order denying habeas corpus). Nor does the majority give

weight to the trial court’s statutory right to rely on its own personal recollection of

the prior proceedings in making its determination of whether habeas corpus relief

should be granted. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 6(b). Thus, the

majority fails to consider the stipulations and waivers in the record, or any of the

documents in the record other than appellant’s and Sanchez’s affidavits, which

appellant attached to his application for writ of habeas corpus. Cf. Kniatt, 206

S.W.3d at 664 (holding that appellate court reviewing trial court’s habeas corpus

ruling must review record evidence in light most favorable to ruling and uphold

ruling absent abuse of discretion); Phuong Anh Thi Le, 300 S.W.3d at 327
                                          14
(requiring that reviewing court defer to all of trial court’s implied factual findings

supported by record); Ex parte Wilson, 171 S.W.3d at 928 (requiring almost total

deference to judge’s determination of historical facts supported by record).

Consequently, the majority fails to consider the trial court’s factual determinations

made at the time appellant pleaded guilty.

      The majority assumes that determining that appellant was “manifestly

entitled to no relief” did not involve evaluating the credibility of witnesses, the

record of the plea proceedings, or the trial court’s personal recollection of the case.

See Slip Op. at 8. But, in analyzing appellant’s habeas corpus application and the

supporting documents, including appellant’s and Sanchez’s affidavits, in reviewing

the record, and in determining that appellant’s application was frivolous, the trial

court necessarily had to make implied credibility determinations.          Reviewing

courts afford great deference to trial court findings based on credibility and

demeanor. Ex parte Roberts, 409 S.W.3d 759, 762 (Tex. App.—San Antonio

2013, no pet.); see also Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.

2003) (“[R]eviewing courts should also grant deference to ‘implicit factual

findings’ that support the trial court’s ultimate ruling . . . .”), overruled on other

grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). The majority

affords no deference to these necessarily implied findings. Rather, it requires the

trial court’s findings to be made in writing on remand.

                                          15
      I disagree with the majority’s opinion that neither this Court nor the trial

court was required “to determine the truth or falsity of factual allegations made [in

the application for a writ of habeas corpus] but only to apply the law to the facts as

depicted in the application and accompanying documents.” Slip Op. at 8–9. Nor

do I agree with its opinion that both the trial court and this Court are required to

assume the veracity of the facts as stated in the application and to determine

whether they plausibly give rise to an entitlement to relief. Slip Op. at 8–9. Nor

do I agree with the majority’s ruling that the trial court erred in concluding that

appellant was manifestly entitled to no habeas corpus relief and that his application

was frivolous. Slip Op. at 14.

      In sum, I cannot agree with the majority’s understanding of the standard of

review of an application for writ of habeas corpus, its reasoning in this case, or its

holding reversing the trial court’s order and remanding the case for “entry of a

written order including findings of fact and conclusions of law.”




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                                    Conclusion

      I would review the trial court’s order denying appellant’s application for a

writ of habeas corpus under the standard of review set out in this dissenting

opinion, and I would affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, dissenting.

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




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