Opinion
No. 05-09-00748-CR
Opinion Filed October 13, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. WX09-90009-J.
Before Justices MORRIS, BRIDGES, and MURPHY.
OPINION
John Albert Estrada, Sr. appeals from the trial court's order denying the relief he requested in a second application for writ of habeas corpus challenging his conviction for sexual assault. In seven issues, appellant contends the trial court abused its discretion in denying relief because he received ineffective assistance of counsel, his plea was involuntary, he is entitled to a discharge order voiding his conviction, article 42.12 of the code of criminal procedure is unconstitutional, and he has suffered cruel and unusual punishment. Finding no abuse of discretion, we affirm.
Background
On May 16, 1994, appellant entered negotiated nolo contendere pleas to sexual assault and aggravated sexual assault. Pursuant to the plea bargain agreements, the trial court assessed punishment at ten years confinement for sexual assault, probated for ten years, and placed appellant on deferred adjudication community supervision for ten years for the aggravated sexual assault. The trial court also assessed $300 fines in each case. In 1996, the State moved to revoke community supervision and proceed with an adjudication of guilt, alleging appellant had failed to participate in sex offender treatment. After a hearing, the trial court revoked appellant's community supervision in the sexual assault case, adjudicated him guilty of aggravated sexual assault, and assessed punishments of twenty years' confinement for aggravated sexual assault and ten years' confinement for sexual assault. On direct appeal, this Court affirmed appellant's conviction for aggravated sexual assault, but reversed and remanded his sexual assault conviction on the ground he received ineffective assistance of counsel during the revocation hearing. See Estrada v. State, Nos. 05-96-00752-CR, 05-96-00753-CR, 1999 WL 521683 (Tex. App.-Dallas July 23, 1999, pet. ref'd) (op. on reh'g) (not designated for publication). On remand, the trial court continued appellant's community supervision in the sexual assault case. Appellant has completed his community supervision in the sexual assault case. Appellant continues to serve his prison sentence for aggravated sexual assault. In 2004, appellant filed applications for writs of habeas corpus in both cases. This Court granted a motion to dismiss for want of jurisdiction appellant's challenge to his aggravated sexual assault conviction but did review the denial of appellant's writ application in the sexual assault case. See Ex parte Estrada, Nos. 05-04-01309-CR, 05-04-01310-CR, 2004 WL 2849147 (Tex. App.-Dallas Dec. 13, 2004, pet. ref'd) (not designated for publication). In the 2004 proceeding, appellant contended he received ineffective assistance of counsel and his plea was involuntary. As set forth in this Court's opinion, appellant claimed "he was pressured or rushed to plead nolo contendere, some of the plea papers were not in order, and he is innocent of the sexual assault offense. It also appears appellant claims the two nolo contendere pleas were a 'package deal.'" See Estrada, Nos. 05-04-01309-CR, 05-04-1310-CR, 2004 WL 2849147, at *2. In resolving these issues against appellant, the Court noted that he had already received relief on the claim for ineffective assistance during the revocation proceeding, and it further noted that the record did not support his contentions that his plea was involuntary or that he received ineffective assistance of counsel wider in scope than the revocation hearing. See id. In the current proceeding, appellant has repackaged some of the same arguments he made in his 2004 writ application. In its findings of fact, the trial court noted that appellant's claims were raised and considered in a previous writ application. The trial court further found appellant had presented no new evidence in his application and that the writ application was "frivolous and wholly without merit."Discussion
We review for abuse of discretion the trial court's decision to deny habeas corpus relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Appellant bears the burden to prove his entitlement to the relief he seeks by a preponderance of the evidence. Id. We review the evidence presented in the light most favorable to the trial court's ruling. Id. In conducting our review, we afford almost total deference to the trial court's determination of the historical facts the record supports, especially when the fact findings require an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). In reviewing a subsequent writ application:a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.Tex. Code Crim. Proc. Ann. art. 11.072(9)(a) (Vernon 2005). A legal basis is unavailable if it "was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before [the date of the first writ application]." Id. at 11.072(9)(b). A claim's factual basis is considered unavailable "if the factual basis was not ascertainable through the exercise of reasonable diligence on or before [the date of the first writ application]." Id. at 11.072(9)(c). Initially, we note that although appellant seeks relief only regarding the sexual assault conviction, his contentions are, for the most part, thinly disguised efforts to obtain collateral review and relief from the aggravated sexual assault conviction on the theory that the cases are intertwined, were presented to him for pleading as "a package deal," and the doctrine of collateral estoppel should be applied in his favor. We lack jurisdiction to review complaints about appellant's aggravated sexual assault conviction. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008) (establishing writ applications after final conviction are returnable to the court of criminal appeals). Thus, we will not address appellant's complaints to the extent they relate to that case. In his first three issues, appellant contends he received ineffective assistance during his plea and revocation hearings and he entered an involuntary plea. Appellant raised these issues in his 2003 writ application. Nevertheless, he requests they be reconsidered in light of new evidence in the form of plea papers attached to his writ application as exhibits one and two. Exhibit one is his judicial confession in the aggravated sexual assault case. As we have already explained, the aggravated sexual assault case in not before this Court. Exhibit two is a plea document from the revocation proceeding and a judicial confession from his original plea hearing. Although appellant describes these documents as newly discovered evidence, the plea document was filed with the trial court clerk on February 20, 1996 and the judicial confession was filed with the trial court clerk on May 16, 1994. Copies of both documents appear in the clerk's record in cause no. 05-96-00753-CR filed with this Court on June 3, 1996. Because appellant raised this issues on direct appeal and the factual basis for his contentions arose prior to the filing of his 2004 writ application, we dismiss appellant's first three issues without considering their merits. See id. at 11.072(9)(a), (c). In his fifth through seventh issues, appellant contends the disparity in treatment between his probated sexual assault conviction and his imprisonment for aggravated sexual assault violates his right to due process of law, renders article 42.12 of the code of criminal procedure unconstitutional, and constitutes cruel and unusual punishment in violation of the federal and state constitutions. The factual and legal grounds for raising these complaints were available in 2004 when appellant filed his initial writ application. Accordingly, we dismiss appellant's fifth, sixth, and seventh issues without addressing their merits. See id. at 11.072(9)(a-c). In his fourth issue, appellant requests this Court order the trial court to enter an order "[s]howing appellant has successfully completed the probationary period assessed, vacating the conviction, dismissing the indictment and making an entry that appellant will suffer no legal disabilities associated with such a conviction." Appellant further suggests that the proposed order encompass the aggravated sexual assault conviction because the two cases were part of the same transaction and treating them differently breaches his contractual plea agreement. Appellant contends this issue is not precluded by his earlier writ application because the factual basis for making the claim did not arise until he successfully completed his community supervision in the sexual assault case. Assuming, without deciding, that we may address appellant's fourth issue on the merits, we conclude appellant has not shown himself entitled to relief. At the time appellant was placed on community supervision, article 42.12, section 20 provided:
Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty. . . .Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 4.01, sec. 20, 1993 Tex. Gen. Laws 3586, 3739 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 20 (Vernon Supp. 2008)). Nothing in our record shows what actions the trial court has taken, or refused to take, to acknowledge appellant's successful completion of his community supervision. In his brief and application, appellant states that the trial court has not taken action to acknowledge the completion of community supervision but states elsewhere that the trial court has refused to enter such an order. Nowhere in the record does it show appellant has applied to the trial court for an order discharging him from his community supervision. A post-conviction writ of habeas corpus is an extraordinary remedy and is available only if there is no adequate remedy at law. Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994). Without an adequate record showing appellant has availed himself of his legal remedy and attempted to obtain a discharge order from the trial court, appellant has not shown he is entitled to relief. See Kniatt, 206 S.W.3d at 664. Moreover, even with an adequate record, appellant would not be entitled to the full relief he requests. Upon successful completion of a term of community supervision, a probationer is entitled to discharge from community supervision. See Cuellar v. State, 70 S.W.3d 815, 818-20 (Tex. Crim. App. 2002) (explaining discharge provision of article 42.12, section 20). Beyond the basic discharge, the trial court may exercise its discretion and grant a more comprehensive discharge releasing the probationer from all penalties and disabilities. Id. Thus, even in the sexual assault case, it is up to the trial court to determine the scope of appellant's discharge. Furthermore, appellant's contention that his conviction for aggravated sexual assault should also be included within the terms of his discharge lacks any foundation in the law. We overrule his fourth issue. We affirm the trial court's order.