Opinion
NO. 02-11-00054-CR
09-08-2011
EX PARTE JAMAL ALI ELHAJ
FROM THE COUNTY COURT AT LAW OF WISE COUNTY
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Introduction
Appellant Jamal Ali Elhaj appeals the trial court's order denying relief on his application for writ of habeas corpus. We affirm.
Background
In 2007, Appellant, who is not a United States citizen, pleaded guilty to misdemeanor possession of marihuana. The trial court placed him on deferred-adjudication community supervision, which he successfully completed, and discharged him the following year. No record was made of the plea hearing. In 2009, the federal government instituted deportation proceedings against Appellant, and he applied for a writ of habeas corpus, claiming that the trial court violated his federal constitutional rights. The trial judge recused himself, and after conducting a hearing on Appellant's application for writ, the substituting judge denied relief.
Issues
Appellant presents four issues on appeal. He combines his first and second issues to claim that the trial court violated his federal and state due process rights by denying him an interpreter at the plea hearing, thus denying him effective assistance of counsel. In his third issue, he contends that his plea was involuntary because he was denied his right to a sworn interpreter. In his fourth issue, he claims that he was improperly admonished when the trial court advised him that his pleading guilty would not result in harmful deportation consequences.
In his application for writ filed in the trial court, Appellant alleged that only his rights under the United States Constitution were violated. On appeal, he expands his complaints to include issues under the state constitution. Since the state claims were not presented to the trial court, we do not consider them on appeal. See Tex. R. App. P. 33.1; Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see also Ex parte Peyser, No. 05-97-01606-CR, 1997 WL 775612, at *3 (Tex. App.—Dallas Dec. 17, 1997, pet. ref'd) (op., not designated for publication) (holding that the appellant failed to preserve a state constitutional claim raised in a supplemental brief when the trial court was not given the opportunity to consider whether the state constitution authorized relief).
Standard of Review
We review a trial court's decision to grant or deny habeas relief in the light most favorable to the trial court's ruling, affording almost total deference to the trial judge's determination of the historical facts that are supported by the record. Ex parte Twine, 111 S.W.3d 664, 665 (Tex. App.—Fort Worth 2003, pet. ref'd). Likewise, we afford almost total deference to the trial court's application of law to the facts to the extent that the resolution of the ultimate question turns on the trial court's evaluation of 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, 371 (Tex. Crim. App. 2007). If the resolution of the ultimate issue turns on an application of legal standards, however, we review the trial court's determination de novo. Id.
Analysis
Appellant contends in his first issue that he was denied his due process right to have an interpreter assist him at the plea hearing. The Texas Government Code states that "[a] court shall appoint a certified court interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court." Tex. Gov't Code Ann. § 57.002(a) (West Supp. 2010). A court may also, on its own motion, appoint an interpreter. See id. § 57.002(b). However, when the record is devoid of any request for an interpreter and does not demonstrate that a defendant cannot understand the proceedings, the defendant waives the right to complain of the trial court's failure to appoint an interpreter. See Hernandez v. State, 986 S.W.2d 817, 822 (Tex. App.—Austin 1999, pet. ref'd); Ex parte Hernandez, No. 02-06-00290-CR, 2007 WL 1502028, at *2 (Tex. App.—Fort Worth May 24, 2007, no pet.) (mem. op., not designated for publication) ("[W]hen the record is devoid of any request for an interpreter and does not demonstrate that a defendant cannot understand the proceedings, the defendant waives the right to complain of the trial court's failure to appoint an interpreter.").
In its findings of fact and conclusions of law, the trial court found that Appellant did not request an interpreter. The trial court also found and the record shows that Appellant's primary spoken language is not English and that Appellant brought a friend with him to the plea hearing to assist him with any translating. But the trial court also found, and Appellant admitted on the stand, that Appellant did not tell the judge or anyone in the prosecutor's office that he could not read or understand the plea documents that he signed. Moreover, the judge who took Appellant's plea testified that although he did not remember Appellant specifically, he routinely handles cases with defendants whose English is limited and that when it becomes apparent that a defendant does not speak English, he immediately halts proceedings to secure an interpreter. After reviewing the record, we hold that it supports the trial court's finding that Appellant did not request an interpreter. See Hernandez, 986 S.W.2d at 822.
Appellant also has not shown that he did not understand the proceedings. The record shows that Appellant came to court to dispose of his case, brought a friend to assist him, met with the judge and the prosecutor in the judge's chambers, and received plea papers that he chose not to read but signed anyway. Appellant and his friend both testified. The evidence substantiates that on the day of his plea, Appellant understood that the State offered him a choice of six months in jail or one year of probation. He testified that he did not want to go to jail and was concerned only with the potential effect on his immigration status, so he took deferred adjudication. Appellant's own explanation of his thought process belies his claim that he did not comprehend the proceeding. The record shows that he knew what he wanted and what he did not want, weighed his options, and made a choice.
Appellant's testimony conflicts with that of both his friend as well the trial judge. Appellant testified that he specifically asked his friend to translate to the judge his concern about any potential harmful effects to his green card. He testified that his friend specifically asked the judge if there would be any effect on his immigration status and that the judge assured him that with deferred adjudication there would be none. The friend, however, testified that no one gave Appellant any advice about how his plea might affect his immigration status and that the judge told him only that if he completed probation, nothing would appear on his record. The judge testified that he never advises defendants that guilty pleas do not have immigration consequences. Viewed in the light most favorable to the trial court's ruling, we hold that the evidence does not show that Appellant did not understand the proceedings. See Twine, 111 S.W.3d at 665.
Because the record is devoid of any request for an interpreter and because the evidence viewed in the light most favorable to the trial court's ruling does not show that Appellant did not understand the proceedings, we hold that Appellant waived his right to complain about the trial court's failure to provide an interpreter. See Hernandez, 986 S.W.2d at 822. Accordingly, we overrule Appellant's first issue.
In his second issue, Appellant contends that he was denied his Sixth Amendment right to counsel because the waiver of that right was written in English, a language he claims he did not understand when he entered his plea. He argues that since he was improperly denied an interpreter, he was denied effective assistance of counsel. The record contains a document entitled "Waiver of Right of Representation by Counsel." It is signed by Appellant and the judge who took Appellant's plea, and it states, in pertinent part,
I freely, voluntarily and intelligently waive my constitutional right to counsel. I have been advised by the Judge of said Court of my Constitutional and statutory right to representation by counsel in the trial of the charge pending against me and of the dangers and disadvantages of self-representation . . . . I hereby waive the right to counsel and demand that I be allowed to proceed with my case without an attorney.
At the writ hearing, Appellant testified that he did not remember the right to an attorney being discussed on the day he entered his plea. Appellant's friend testified that he had accompanied Appellant to the judge's chambers on the day of Appellant's plea and that he and Appellant did not discuss Appellant's right to an attorney. The judge testified that in every case in which he takes a guilty plea, he follows the same procedure:
I can - - basically what I can speak to is just my normal method of doing pleas in there which, of course, my personnel in the office get extremely tired of hearing me repeat myself I'm sure. But I do it the same way every time. That's basically where I can come off from is that I do them the same way every time. I go through all this stuff.
. . . [I]f I think that someone's having trouble understanding something or, you know, getting a quizzical look on their face, I mean, I go by anything, body language or whatever. I'm talking with them and going through the terms and everything. And if they go, "I don't understand it," I go, "Do you understand English?" I start asking that, you know. If I get a quizzical look on their face, everything just comes to a halt at that point. We've got to figure it out. One way or the other.
Based on our review of the record, and applying the proper standard of review, we hold that the trial court reasonably could have concluded that although Appellant's English may have been limited, Appellant understood that he had the right to have an attorney and that he knowingly and intelligently waived his right to counsel and opted to continue pro se. Further, it follows that since Appellant did not prove he was improperly denied an interpreter, he did not meet his burden to prove that he was denied effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). We overrule Appellant's second issue. See Twine, 111 S.W.3d at 665.
In Appellant's third issue, he argues that his plea was involuntary because he was denied his right to a sworn interpreter. As discussed above, the record shows that Appellant failed to request an interpreter, and it does not show that he did not understand English. Accordingly, we hold that the trial court did not abuse its discretion by denying habeas relief based on a finding that Appellant's plea was involuntary. See Ex parte Nguyen, No. 02-08-00207-CR, 2008 WL 4355047, at *2 (Tex. App.—Fort Worth Sept. 25, 2008, no pet.) (mem. op., not designated for publication) (citing Hernandez, 986 S.W.2d at 822).
Finally, in Appellant's fourth issue, he contends that he was denied due process under the United States Constitution because the judge misinformed him about the immigration consequences of his plea. First, we note that the court of criminal appeals has never held that constitutional due process requires a trial court to admonish a misdemeanor defendant that his or her guilty plea might result in deportation. See State v. Jimenez, 987 S.W.2d 886, 889 (Tex. Crim. App. 1999) ("[T]his Court has never held that such an admonishment is constitutionally required."); Cf. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998) (failure to admonish felony defendant pleading guilty of deportation consequences as statutorily required was non-constitutional error). Therefore, Appellant's constitutional complaint is without merit.
Moreover, even if we were to read Appellant's issue as statutorily based, article 26.13(a)(4) of the code of criminal procedure merely requires that the trial court admonish the defendant that the plea could result in deportation, exclusion from admission to this country, or denial of naturalization under federal law. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West Supp. 2010). The trial court in this case gave such written admonishments, including the following: "If you are not a citizen of the United States, a plea of guilty or nolo contendere for the offense charged may result in a deportation, the exclusion of admission to this country, or denial of naturalization under federal law."
And whether or not Appellant actually read the admonishments or had the admonishments explained to him, he acknowledged that he read and understood them. Attached to the trial court's admonishments is a page entitled "Acknowledgement." Directly above Appellant's signature, it states, "I have read the above and foregoing admonitions by the Court regarding my rights. I understand the admonitions, and I understand and am aware of the consequences of my plea." Finally, as discussed above, although Appellant testified that the judge misinformed him about the consequences of his plea, neither the judge's testimony nor his friend's testimony support his claim. Deferring to the trial court's resolution of conflicting testimony, and viewing the evidence in the light most favorable to the ruling, the trial court reasonably could have disbelieved Appellant's version of the facts. We hold, therefore, that the evidence supports the trial court's conclusion that Appellant was not misinformed about the immigration consequences of his plea, and we overrule Appellant's fourth issue.
Conclusion
Having overruled all of Appellant's issues, we affirm the trial court's order denying relief.
LEE GABRIEL
JUSTICE
PANEL: McCOY, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b)