                                                                  PD-0620-15
                                                COURT OF CRIMINAL APPEALS
               PD-0620-15                                        AUSTIN, TEXAS
                                                Transmitted 5/22/2015 4:47:17 PM
                                                 Accepted 5/26/2015 10:24:27 AM
                                                                  ABEL ACOSTA
               NO. PD-_____-15                                            CLERK


                 IN THE
      COURT OF CRIMINAL APPEALS
                OF TEXAS
       ____________________________

        ALEJANDRO CHAVEZ RAMIREZ
               Appellant/Petitioner
                       vs.
             THE STATE OF TEXAS,
               Appellee/Respondent
       _________________________________

        APPELLANT’S PETITION FOR
          DISCRETIONARY REVIEW
       ________________________________

            Cause No. 10-14-00247-CR
          Court of Appeals, Tenth District
                  At Waco, Texas
      ___________________________________

                          Lawrence B. Mitchell
                          SBN 14217500
                          P.O. Box 797632
                          Dallas, Texas 75379
                          Tel. No. 214.870.3440
                          E-mail: judge.mitchell@gmail.com

                          Attorney for Petitioner/Appellant


May 26, 2015
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

PRESIDING JUDGE:   John E. Neill, Judge 18th District Court
                   Johnson/Somervell County, Texas

PARTIES:           Alejandro Chavez Ramirez, Appellant/Petitioner

                   The State of Texas, Appellee/Respondent

Counsel:           Trial counsel: Kent Poynor, 2501 Oak Lawn Ave.,
                   Suite 350, Dallas, Texas 75219

                   Appeal counsel: Kent Poynor

                   Petition for Discretionary Review Counsel: Lawrence B.
                   Mitchell, P.O. Box 797632, Dallas, Texas 75379

                   Trial counsel for the State: Assistant District Attorney
                   Trey Brown, 204 S. Buffalo, Suite 209, Cleburne,
                   Texas, 76033

                   Appellate counsel for the State: Trey Brown

                   Trial, Appellate and Petition counsel for the State: Dale S.
                   Hanna, District Attorney or his designated representative
                   at 204 W. Buffalo, Suite 209, Cleburne, Texas




                                   i
                                          TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel......................................................................i

Table of Contents ......................................................................................................ii

Index of Authorities..................................................................................................iii

Statement Regarding Oral Argument........................................................................1

Statement of the Case.................................................................................................1

Statement of Procedural History ...............................................................................2

Ground for Review: ..................................................................................................2
                                                   I.

                   WHETHER THE COURT OF APPEALS ERRED IN
                   HOLDING THAT THE DISTRICT COURT DID NOT
                   ABUSE ITS DISCRETION IN RULING THAT
                   APPELLANT’S APPLICATION FOR WRIT OF HABEAS
                   CORPUS WAS FRIVOLOUS AND THAT HE WAS
                   MANIFESTLY ENTITLED TO NO RELIEF


Argument...................................................................................................................3

Conclusion.................................................................................................................8

Prayer for Relief.........................................................................................................9

Certificate of Word-Count Compliance..................................................................10

Certificate of Service...............................................................................................10

Appendix ..................................................................................................................1.1

                                                              ii
                                  INDEX OF AUTHORITIES

Cases:

Ex parte Mello, 355 S.W.3d 827 (Tex. App. - Fort Worth 2011).............................7

Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003)..................................6

Ex. parte Roberts, 409 S.W.3d 759 (Tex. App. - San Antonio 2013)......................6

Ex parte Zantos-Cuebas, 429 S.W. 3d 83 (Tex. App. Houston [1st Dist.] 2014).....7

Guzman v. State, 955 S.W. 2d 85 (Tex. Crim. App. 1997) ......................................7

Statutes:

TEX. CRIM. CODE CRIM. PROC. ANN. art. 11.072 §2 (b) (1)..............................1,3

TEX. CODE CRIM. PROC. ANN. art. 11.072 §6 (b)..................................................5

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


Texas Rules of Appellate Procedure:

TEX. R. APP. P. 66.3 (b)..........................................................................................8

TEX. R. APP. P. 66.3 (c) .......................................................................................8

TEX. R. APP. P. 9.4 (i) (3)........................................................................................10

TEX. R. APP. P. 9.4 (i) (1)........................................................................................10

TEX. R. APP. P. 9.4 (i) (2) (D).................................................................................10



                                                         iii
               STATEMENT REGARDING ORAL ARGUMENT

      Appellant waives oral argument because the issue presented can be resolved

by review of the Petition for Discretionary Review, any Response and, if the Petition

is granted, on the respective briefs of the parties.

                          STATEMENT OF THE CASE

      In Cause No. 47308-A, appellant pled guilty to possession of a controlled

substance and was sentenced to two (2) years confinement in a state jail facility. The

sentence was suspended and he was placed under community supervision for five (5)

years. While under community supervision, appellant filed an Application for Writ

of Habeas Corpus pursuant to the provisions of TEX. CRIM. CODE CRIM. PROC.

ANN. art. 11.072 §2 (b) (1). In the Application appellant complained that his plea

was involuntary for several reasons and that he had been deprived of the effective

assistance of counsel since he was not properly admonished that he would be

deported because of the conviction. The district court denied the Application without

receiving evidence in any form, ruling that it was frivolous and that appellant was

manifestly not entitled to relief. Notice of appeal was timely given.




                                           1
                STATEMENT OF PROCEDURAL HISTORY

      The appeal was presented to the Court of Appeals for the Tenth District of

Texas at Waco in Cause No. 10-14-00247-CR.              The court issued its first

memorandum opinion affirming the trial court’s judgment on December 31, 2014.

Appellant’s Motion for Rehearing was filed on January 15, 2015. The first opinion

was withdrawn and a new memorandum opinion affirming the trial court’s judgment

was issued on April 23, 2015. See Appendix. Appellant’s Motion for Rehearing was

denied in Footnote 2 of that opinion on the same date. The Petition for Discretionary

Review is timely filed if filed on or before May 23, 2015.



                            GROUND FOR REVIEW

                                         I.

             WHETHER THE COURT OF APPEALS ERRED IN
             HOLDING THAT THE DISTRICT COURT DID NOT
             ABUSE ITS DISCRETION IN RULING THAT
             APPELLANT’S APPLICATION FOR WRIT OF HABEAS
             CORPUS WAS FRIVOLOUS AND THAT HE WAS
             MANIFESTLY ENTITLED TO NO RELIEF




                                          2
                                    ARGUMENT

      After appellant was placed under community supervision, he filed an

application for writ of habeas corpus in the convicting court challenging the legal

validity of his conviction for which the community supervision had been imposed.

See TEX. CRIM. CODE CRIM. PROC. ANN. art. 11.072 §2 (b) (1). In the application

he complained that his conviction was involuntary thus depriving him of the Due

Process of Law and that he had been deprived of his constitutional right to the

effective assistance of counsel in that he was not properly advised of the immigration

consequences of being found guilty of the offense charged. [CR 41- 46]. The State

did not file a written response to the application. See appellant’s Motion for New

Trial. [CR - 52].

      Based upon the foregoing, the district court initially set this matter for a

hearing on the merits of the complaints to commence on August 12, 2014. [CR - 47].

However, before that hearing was held, the district court issued a written order

denying the application. [CR - 48]. The district court ruled that the application was

frivolous and appellant was manifestly entitled to no relief.         As the record

demonstrates, there was no evidence presented to the district court in any form before

the trial court ruled. The decision was based upon the court’s review of the

application and the court’s “...recollection of the case.”

                                           3
      In affirming the trial court’s decision, the court of appeals first acknowledged

that the application did present, facially, the two allegations of constitutional

violations as noted above. The court of appeals noted that no affidavits or other

evidence were included in or attached to the writ application. After recognizing that

the habeas statute allows the trial court, in some circumstances, to consider the merits

of the application without a hearing, which it clearly does, the reviewing court

criticized appellant for not providing authority in his application that a “hearing” was

required to allow him to present evidence. [Slip opinion at p. 4]. The court of appeals

upheld the judgment of the district court because appellant did not have the statutory

right to an evidentiary hearing and therefore the trial court did not abuse its discretion

in denying relief.

      What is not resolved in the opinion is the question of whether the trial court can

deny a writ application without receiving any evidence at all. Appellant argues

herein that, unless the writ application fails on its face to present at least one

justiciable issue, the trial court cannot deny the application as frivolous without

receiving evidence in some statutorily authorized manner.

      The habeas statute authorizes the trial court, in its discretion, to determine how

the evidentiary basis for the application for writ of habeas corpus can be provided;

it does not provide that the trial court can resolve the justiciable issues presented in

                                            4
the application without any evidence at all. The habeas statute provides that the trial

court may make its determination to grant or deny the writ after ordering

“...affidavits, depositions, interrogatories, or conduct a hearing.” TEX. CODE CRIM.

PROC. ANN. art. 11.072 §6 (b). In addition to these methods of developing the

evidence, the trial court may also rely on the court’s personal recollection. It is

appellant’s argument that the habeas statute gives the trial court discretion on “HOW”

it may receive evidence not “IF” it will receive evidence if the face of the of the

application alleges justiciable issues. The trial court can deny the application without

receiving evidence in any form only if, after reviewing the face of the application and

any documents attached to the application, the trial court determines that the applicant

is entitled to no relief.

       In deciding this appeal, the court of appeals quite properly noted that

appellant’s sole issue on appeal was “...that the trial court erred in summarily denying

(his) writ petition as frivolous.” Slip opinion at p. 2. However, because the majority

of appellant’s argument was based upon the failure of the trial court to conduct an

evidentiary hearing, the court of appeals chose to resolve only the issue as to whether

the trial court had abused its discretion by not conducting an evidentiary hearing. The

court of appeals should have resolved the issue actually raised: did the district court

err in determining from the face of the writ application that the writ was frivolous and

                                           5
that appellant was not entitled to relief. If the court of appeals had attempted to

resolve the issue presented, it would have done so under a different standard of

review.

      In the instant cause, appellant complained that the trial court entered a written

order denying the writ application as frivolous which did not include written findings

of fact or conclusions of law. The court of appeals should have begun its analysis of

the issue presented by considering whether the trial court erred in determining “from

the face of the application” that appellant was “manifestly entitled to no relief” so

that his application should be declared “frivolous.” The court of appeals should have

reviewed de novo the trial court’s determination that appellant’s application was

frivolous. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003); Ex. parte

Roberts, 409 S.W.3d 759, 762 (Tex. App. - San Antonio 2013).

      A decision of the trial court to summarily deny the applicant’s writ application

without an evidentiary base and only upon the review of the application and personal

recollection is not an evaluation of credibility issues. Rather, it is only a legal issue:

did the application, on its face, raise issues that could lead to the granting of relief.

The resolution of this issue turns only upon the application of legal standards. The

trial court under such circumstance is not in any appreciably better position than the

court of appeals to make that determination so that de novo review, not abuse of

                                            6
discretion review, is appropriate. See Guzman v. State, 955 S.W. 2d 85, 89 (Tex.

Crim. App. 1997); Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App. - Fort Worth

2011).

      In Ex parte Zantos-Cuebas, 429 S.W. 3d 83, 88-89 (Tex. App. Houston [1st

Dist.] 2014) the appellant was a non-English speaking defendant (as was appellant

herein, although, unlike in Zantos-Cuebas, an interpreter was present). He raised, as

did appellant herein, in his writ application that he was not properly admonished as

to the deportation consequences of his guilty plea and conviction. He complained in

his writ and supporting documents that he did not understand the consequences

because of improper, informal translation. Appellant’s writ referenced portions of the

trial record showing that he was improperly advised about deportation consequences.

In both cases the writ was denied as being frivolous.

      The Zantos-Cuebas court properly determined, under de novo review, that

“...the face of the writ      application and affidavits [did] 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.” (citing to TEX. CRIM. PROC.

CODE ANN. art. 11.072, § 7[a]). Ex parte Zantos-Cuebas, 429 S.W.3d at 90 -91.The

case was remanded to the trial court for further development of the factual record.

      In the instant cause, the writ application alleged, facially, that appellant’s plea

                                           7
was involuntary and that he was improperly admonished as to the deportation

consequences of his plea. The application referenced several portions of the trial

record which he believed established that he had not been properly admonished. The

district court erred in ruling that from the review of the application and its own

personal recollection that this writ application was “frivolous.”

      The court of appeals erred in using an inapplicable standard of review in

determining that the trial court had not abused its discretion in finding the application

“frivolous.” Under proper de novo standards, the court of appeals should have ruled

that the writ application was not frivolous from a review of the face of the document

and reversed and remanded the case to the trial court for further review and for the

entry of findings of facts and conclusions of law.

                                   CONCLUSION

      The court of appeals has decided an important question of state law that

conflicts with the applicable decisions of the Court of Criminal Appeals and the

decisions of other court of appeals on the same issue. See TEX. R. APP. PROC. 66.3

(a) and (c). More specifically, the court of appeals as adopted a standard of review,

“the abuse of discretion rule,” whereas the Court of Criminal Appeals and the courts

of appeals have held that a de novo review should be conducted on a habeas issue that

is only a question of law. An appropriate reason for this Honorable Court to grant this

                                           8
Petition for Discretionary Review has been presented.

                          PRAYER FOR RELIEF

      WHEREFORE FOR THE FOREGOING REASONS, Appellant prays that

the Petition for Discretionary Review be granted and that further briefing by the

parties should be ordered. Thereafter, the case should be reversed and remanded to

the court of appeals for review of the issue presented under the proper standard of

appellate review.

                                      Respectfully submitted,

                                      /s/Lawrence B. Mitchell

                                      Lawrence B. Mitchell
                                      SBN 14217500
                                      P.O. Box 797632
                                      Dallas, Texas 75379
                                      214.870.3440
                                      judge.mitchell@gmail.com

                                      Counsel for Petitioner/Appellant




                                         9
             CERTIFICATE OF WORD-COUNT COMPLIANCE

      I hereby certify, in compliance with Rule 9.4 (i) (3) of the Texas Rules of

Appellate Procedure, that this document contains 1,781 words, including all contents

except for the sections of the Petition to be excluded by Rule 9.4 (i) (1) of the Texas

Rules of Appellate Procedure, and in compliance with Rule 9.4 (i) (2)(D) of the Texas

Rules of Appellate Procedure.



                                        /s/ Lawrence B. Mitchell



                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Petition for Discretionary

Review is being served of this the 22nd day of May, 2015 via the service function in

eFile Texas, on the attorneys for the State: (1) Trey Brown, Assistant District

Attorney, Johnson County County, Texas to Trey@johnsoncountytx.org and (2) the

State Prosecuting Attorney at information@spa.texas.gov.



                                        /s/ Lawrence B. Mitchell




                                          10
                                  APPENDIX

                            Court of Appeals of Texas,
                                      Waco.
                        Ex parte Alejandro Chavez Ramirez

                              No. 10–14–00247–CR
                     Opinion delivered and filed April 23, 2015

                            From the 18th District Court
                              Johnson County, Texas
                              Trial Court No. 47308–A

                           MEMORANDUM OPINION1

       Alejandro Chavez–Ramirez pled guilty to possession of a controlled substance

and was sentenced to two years in a state jail facility. See Tex. Health & Safety Code

Ann. § 481.115(b) (West 2010). His sentence was suspended and Ramirez was placed

on community supervision for 5 years. Ramirez was later detained by the Federal

Department of Immigration and Customs Enforcement, and filed an application for

writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal

Procedure. Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005). After initially setting

the application for a hearing, the trial court reviewed the application, determined



      1
          We withdraw our memorandum opinion and judgment dated December 31, 2014 and
replace it with this memorandum opinion and judgment dated April 23, 2015.

                                          1.1
Ramirez to be entitled to no relief, and denied Ramirez's application as frivolous.

Because the trial court did not abuse its discretion in denying the application without

a hearing, the trial court's judgment is affirmed.

      Ramirez's sole issue is that the trial court erred in summarily denying Ramirez's

writ petition as frivolous. In the body of his argument, however, he complains about,

and supports his argument with case-law regarding, the trial court's decision to

determine the writ application without a hearing.

      We review a trial court's decision to grant or deny an evidentiary hearing on an

article 11.072 habeas corpus application under an abuse of discretion standard. See

Ex parte Gonzalez, 323 S.W.3d 557, 558 (Tex. App.–Waco 2010, pet. ref'd); Ex parte

Cummins, 169 S.W.3d 752, 757 (Tex. App.–Fort Worth 2005, no pet.). See also Ex

parte Godinez, No. 10–13–00063–CR, 2014 Tex. App. LEXIS 256, 2–3 (Tex.

App.–Waco Jan. 9, 2014, pet. ref'd) (not designated for publication). Nothing in

article 11.072 requires the trial court to conduct a hearing before rendering its

decision on the habeas-corpus relief sought. See Tex. Code Crim. Proc. Ann. art.

11.072, § 6(b) (West 2005) (“In making its determination, the court may order

affidavits, depositions, interrogatories[,] or a hearing, and may rely on the court's

personal recollection.” (Emphasis added)); Ex parte Gonzalez, 323 S.W.3d at 558.

      In his Application for Writ of Habeas Corpus, Ramirez raised two complaints:

                                          1.2
1) that his plea was involuntary because he did not understand (a) his right to plead

not guilty and have a jury trial; (b) there were possible defenses; and (c) there were

possible “serious consequences;” and 2) that counsel provided ineffective assistance

by failing to properly admonish Ramirez that his plea would “certainly or almost

certainly result in deportation.” The writ application was not sworn to, as required by

the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. Art. 11.14

(West 2005).

       If an applicant fails to follow the proper procedures outlined in Chapter 11 of

the Code of Criminal Procedure, he risks failing to invoke the trial court's habeas

corpus jurisdiction. State v. Guerrero, 400 S.W.3d 576, 584 (Tex. Crim. App. 2013)

(citing Jordan v. State, 54 S.W.3d 783, 787 (Tex. Crim. App. 2001) (“if a probationer

wishes to invoke the trial court's writ of habeas corpus jurisdiction, he must follow

the proper procedures outlined in Article 11....”). In this instance, the application was

not so informal so as to fail to invoke the trial court's jurisdiction. See Jordan, 54

S.W.3d at 786. (“functional” writ analysis adopted by prior cases reversed). In this

instance, it is evident that the parties and the trial court recognized the filing as an

11.072 writ, notwithstanding the failure to comply with the statute.2


       2
             Ramirez asks this Court in his motion for rehearing to dismiss the underlying
proceeding for lack of jurisdiction, pursuant to Jordan, without prejudice to refiling his petition
for writ of habeas corpus. Ramirez's motion for rehearing is denied.

                                                 1.3
      The trial court considered the merits of the application without a hearing as the

statute clearly provides the trial court the authority to do. See Ex parte Gonzalez, 323

S.W.3d 557, 558 (Tex. App.–Waco 2010, pet. ref'd). It is the habeas applicant's

obligation to provide a sufficient record that supports his factual allegations with

proof by a preponderance of the evidence. Ex parte Chandler, 182 S.W.3d 350, 353

n. 2 (Tex. Crim. App. 2005). No affidavits or other evidence was included in or

attached to the writ application. Moreover, the writ application provided no statutory

or case authority that suggested a hearing was required to allow the applicant to

provide evidence to show he was entitled to relief. Thus, we cannot say, based on this

record, that the trial court abused its discretion in ruling on Ramirez's application

without a hearing.

      Accordingly, Ramirez's sole issue is overruled, and the trial court's judgment

is affirmed.

                                     TOM GRAY
                                     Chief Justice

Before Chief Justice Gray,
      Justice Davis and
      Justice Scoggins




                                          1.4
1.5
