Opinion issued August 2, 2016




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00973-CR
                            ———————————
         EX PARTE CARLOS ALEXANDER AGUILAR, Appellant



                    On Appeal from the 339th District Court
                            Harris County, Texas
                       Trial Court Case No. 1248496-A


                                    OPINION

      Carlos Alexander Aguilar appeals from the denial of his post-conviction

application for writ of habeas corpus, complaining that the trial court abused its

discretion by not holding an evidentiary hearing on his application.
                                   Background

      Aguilar, who was born in El Salvador, was residing in the United States

under temporary protected status (TPS). In 2010, Aguilar was charged with the

offense of aggravated sexual assault of a child by having sexual intercourse with a

13-year-old girl when he was 18 years old.           See TEX. PENAL CODE ANN.

§ 22.021(b) (West Supp. 2015). He eventually pleaded guilty to the offense of

indecent exposure to a child1 and received deferred adjudication community

supervision.

      Aguilar filed an application for writ of habeas corpus, asserting that his trial

counsel was ineffective for failing to advise him of the potential immigration

consequences for pleading guilty and for advising him against going to trial.

Attached to the application were two affidavits: (1) an immigration attorney,

Bianca Santorini, who averred that Aguilar had not been properly admonished

about the immigration consequences, and that if he had, he might have sought a

jury trial or a better plea; and (2) the complainant in the underlying criminal case,

who averred that she was never interviewed questioned by Aguilar’s attorney or

the District Attorney. The hearing date on the application was reset until October

8, 2015. According to the affidavit of Aguilar’s counsel, he appeared on October 8

for the hearing with a number of witnesses, but was advised that the trial court had


1
      See TEX. PENAL CODE ANN. § 21.11(a) (West 2011).

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denied the application and no hearing would be held. Aguilar’s counsel maintains

that when he approached the bench to insist that he be permitted to present his

evidence, the trial court responded that he could appeal the ruling.

      Aguilar filed a motion for new trial, claiming the trial court violated his right

to due process and abused its discretion by not advising counsel that the trial court

would not hear live testimony. Counsel attached to the motion for new trial the

affidavits of the witnesses he had planned to call at the hearing, including

(1) defense counsel, Shawn Rudisel, who represented him in the aggravated sexual

assault case; (2) Liseth Arevalo, the complainant; (3) Bianca Santorini, an

immigration attorney; (4) Aguilar; (5) Aguilar’s mother; (6) Aguilar’s brother; and

(7) DaSean A. Jones, the attorney who filed the habeas application. None of the

witnesses, other than his defense counsel, stated that they were present during all

of the conversations with his attorney or when the trial court accepted his plea.

                                   Standard of Review

      The denial of Aguilar’s application for writ of habeas corpus is one within

the trial court’s discretion and may be overturned only if we find the trial court

abused its discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.

2006).   The generally-applied abuse of discretion standard is not appropriate

“when the decision does not turn on the credibility or demeanor of witnesses.” Ex

parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). Statutory construction is



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a question of law that we review de novo. Spence v. State, 325 S.W.3d 646, 650

(Tex. Crim. App. 2010).

                                     Analysis

      Aguilar challenges the trial court’s refusal to hold a hearing as an abuse of

discretion and a violation of his right of due process. The State responds that

Aguilar’s complaints were not preserved for review because Aguilar did not obtain

a ruling on his request for a hearing and object to the ruling. See Lovill v. State,

319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (stating that to preserve

complaint, record must show specific and timely complaint and trial court ruling

on complaint); Ex parte Luciw, No. 03–08–00445–CR, 2009 WL 5150018, at *3

(Tex. App.—Austin Dec. 31, 2009, no pet.) (mem. op., not designated for

publication) (holding error not preserved because record contained no request for

trial court hearing). The record contains no request for a hearing and no ruling

denying a request.

      A trial court is not required to hold a hearing. Article 11.072 delineates the

process for habeas applications when an applicant seeks relief from a judgment of

conviction that orders community supervision, as occurred here. See TEX. CODE

CRIM. PROC. ANN. art. 11.072 § 1. The relevant provisions are:

            (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.


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

Id. at art. 11.072 § 6.

       Although Aguilar claims he was entitled to an evidentiary hearing, article

11.072 does not require the trial court to hold any hearing—let alone an

evidentiary hearing—before rendering its decision. See Ex parte Franklin, 310

S.W.3d 918, 922–23 (Tex. App.—Beaumont 2010, no pet.) (holding that trial court

is not required to hold oral hearing when determining whether to deny habeas

application alleging ineffective assistance of counsel); see also Ex parte Godinez,

No. 10–13–00063–CR, 2014 WL 98816, at *2 (Tex. App.—Waco Jan. 9, 2014,

pet. ref’d) (mem. op., not designated for publication) (stating that article 11.072

does not require court to hold evidentiary hearing).

       The trial court may consider affidavits attached to an application as evidence

without a hearing. See Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort

Worth 2005, no pet.). Because the statute does not require a hearing, the trial

court’s decision to rule based on the submitted affidavits did not violate Aguilar’s

due process rights. See In re Pesina, No. 07–15–00380–CR, 2016 WL 383845, at

*2 (Tex. App.—Amarillo Jan. 27, 2016) (mem. op., not designated for publication)

(article 11.072 provides variety of ways for court to reach decision and no due

process violation shown simply because trial court held no evidentiary hearing); Ex


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parte Hollowell, No. 03–11–00240–CR, 2012 WL 1959309, at *6–7 (Tex. App.—

Austin June 1, 2012) (overruling due process challenge because article 11.072 does

not require a hearing), pet. ref’d, 392 S.W.3d 661 (Tex. Crim. App. 2013).

      Aguilar also contends the trial court violated the Code of Judicial Conduct.

Canon 3(B)(8) provides: “A judge shall accord to every person who has a legal

interest in a proceeding, or that person’s lawyer, the right to be heard according to

law.” Tex. Code Jud. Conduct, Canon 3(B)(8), reprinted in TEX. GOV’T CODE

ANN., tit. 2, subtit. G., app. B (West 2013). Because article 11.072 does not

require a trial court to hold a hearing on an application for writ of habeas corpus,

the trial court did not violate the Code of Judicial Conduct.

      Finally, Aguilar claims the trial court violated the Code of Judicial Conduct

by having ex parte communications with the State. See Tex. Code Jud. Conduct,

Canon 3(B)(8), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G., app. B.

Aguilar contends the State was given notice of the trial court’s intent to have a

hearing by affidavit rather than by live testimony, but he was not.          Aguilar,

however, presents no proof of ex parte communications and no evidence of

ongoing bias or prejudice toward Aguilar.

                                     Conclusion

      Because Aguilar has not shown the trial court abused its discretion, we

affirm the trial court’s judgment.



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                                            Harvey Brown
                                            Justice



Panel consists of Justices Keyes, Brown, and Huddle.

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




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