Opinion
NUMBER 13-15-00136-CR
02-04-2016
EX PARTE ROSA MARIA CRUCES
On appeal from the 197th District Court of Cameron County, Texas.
ORDER OF ABATEMENT
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Order Per Curiam
Appellant Rosa Maria Cruces appeals from a denial of her application for writ of habeas corpus. The trial court's order of denial did not explain the reason for its denial or include findings of fact and conclusions of law. See TEX. CODE. CRIM. PROC. ANN. art. 11.072, § 7(a) (West, Westlaw through 2015 R.S.). We abate the appeal and remand to the trial court to allow the trial court to clarify its order and to enter, if appropriate, findings of fact and conclusions of law, consistent with article 11.072, section 7(a) of the Texas Code of Criminal Procedure. See id.
I. BACKGROUND
Cruces is a Mexican citizen who obtained status as a Lawful Permanent Resident of the United States in 1965. In September 2010, she was arrested in Brownsville, Texas for burglary of a building, a state jail felony. See id. art. 30.02. Counsel was appointed to represent Cruces. On February 28, 2011, Cruces entered a plea of guilty. The trial court sentenced her to two years' confinement, but suspended her sentence and placed her on community supervision for five years. Because she was convicted of burglary with the sentence of at least one year, Cruces was subject to automatic deportation. See 8 U.S.C.A. §§ 1101(a)(43)(G) (West, Westlaw through 2015 P.L.) (defining "aggravated felony" as including a burglary conviction with a prison term of at least one year), 1228(c) ("An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States.").
On June 16, 2014, Cruces filed a motion to modify the judgment, seeking a reduction of her sentence—from two years to 364 days—so that she could avoid automatic deportation. See id. §§ 1101(a)(43), 1228(c). Her motion was denied because the court's plenary power had expired.
On October 8, 2014, Cruces filed an application for writ of habeas corpus, claiming ineffective assistance of counsel. Following an evidentiary hearing on February 24, 2015, the habeas court denied her application. This appeal followed.
II. DISCUSSION
Cruces sought habeas relief from a criminal conviction whereupon community supervision had been imposed, and therefore code of criminal procedure article 11.072 establishes the procedural framework for her appeal. See TEX. CODE. CRIM. PROC. ANN. art. 11.072, § 7(a). Pursuant to article 11.072, a habeas court may omit findings of fact and conclusions of law from its order of denial only upon a finding that the application is "frivolous" on its face. Id.; see Ex parte Enriquez, 227 S.W.3d 779, 783-84 (Tex.App.—El Paso 2005, pet. ref'd). "In any other case," the statute requires the trial court to enter a written order including findings of fact and conclusions of law in its order. TEX. CODE. CRIM. PROC. ANN. art. 11.072, § 7(a); Ex parte Zantos-Cuebas, 429 S.W.3d 83, 88 (Tex. App.—Houston [1st Dist.] 2014, no pet.); see Ex parte Cherry, 232 S.W.3d 305, 308 (Tex. App.—Beaumont 2007, pet. ref'd); see also Ex parte Baldez, No. 04-13-00494-CR, 2014 WL 1908952, at *2 (Tex. App.—San Antonio May 14, 2014, no pet.) (mem. op.).
In the present case, the habeas court's order includes neither an express finding that Cruces' appeal is frivolous nor findings of fact and conclusions of law. We are thus compelled by the statute and by the fundamental nature of the right at stake to abate and remand to the habeas court for consideration of these matters. See TEX. R. APP. P. 31.2 ("[T]he sole purpose of the [habeas] appeal is to do substantial justice to the parties"), 31.3 ("The appellate court will render whatever judgment and make whatever orders the law and the nature of the [habeas appeal] require.").
See Ex parte Cherry, 232 S.W.3d 305, 307 (Tex. App.—Beaumont 2007, pet. ref'd) (relying, in part, on the fundamental nature of the right to assistance of counsel as reason to remand for findings of fact under article 11.072); Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (noting that the Sixth Amendment guarantees a right to effective assistance of counsel).
III. ABATEMENT
Accordingly, we ABATE and REMAND this cause to allow the habeas court to clarify its order and to enter, if appropriate, findings of fact and conclusions of law. Upon remand, the habeas court will clarify its order to determine whether it finds Cruces' application to be "frivolous" or, if not, what findings of fact and conclusions of law justify denial. See TEX. CODE. CRIM. PROC. ANN. art. 11.072, § 7(a).
Because we have abated the appeal, the submission date of February 10, 2016 has been withdrawn.
In doing so, the habeas court may rely upon the two-prong test for ineffective assistance of counsel that was issued in Strickland v. Washington. 466 U.S. 668, 687 (1984); see Jackson v. State, 877 S.W.2d 768, 770 (Tex. Crim. App. 1994). Under Strickland, the defendant must first show that counsel's representation fell "below an objective standard of reasonableness." 466 U.S. at 688. Second, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The first prong of Strickland has special dimensions where a criminal defendant is also subject to potential immigration consequences if convicted. See Padilla, 559 U.S. at 367. In such cases, defense counsel has a duty to inform the defendant of the potential deportation consequences with as much clarity as the circumstances reasonably allow. See id. at 369. Under Padilla, failure to so advise the defendant is a violation of the standard that is embodied in the first prong of Strickland. Id. With the first prong established, the defendant must then show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.
If a hearing is necessary to determine the foregoing, the habeas court shall immediately issue notice of such hearing and accordingly conduct a hearing. The habeas court is directed to file a supplemental reporter's record of this hearing, if any. In addition, the court is directed to include the record of the evidentiary hearing held on February 24, 2015 in a supplemental reporter's record. We also direct the habeas court to file a supplemental clerk's record containing any clarifying order and any findings of fact and conclusions of law.
The habeas court shall file the supplemental reporter's record and the supplemental clerk's record with the Clerk of this Court within thirty days of the date of this order. See TEX. R. APP. P. 2, 35.3(c) ("The appellate court may enter any order necessary to ensure the timely filing of the appellate record."). If the habeas court requires additional time to comply, it should notify the Clerk of this Court and request an extension prior to the expiration of this deadline. The appeal will be reinstated upon receipt of the aforementioned materials and upon further order of this Court.
IT IS SO ORDERED.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 4th day of February, 2016.