Opinion
NO. 01-16-00313-CR
03-30-2017
EX PARTE FELIX IBARRA, Appellant
On Appeal from the 337th District Court Harris County, Texas
Trial Court Case No. 1473893-A
MEMORANDUM OPINION
Appellant, Felix Ibarra, appeals the trial court's order denying his application for a writ of habeas corpus. In two issues, appellant contends that the trial court erred in denying him relief from a judgment of conviction for the felony offense of driving while intoxicated ("DWI") because the sentence was illegal in light of an illegal jurisdictional enhancement. In a third issue, appellant contends it was inequitable to deny habeas corpus relief based on his failure to introduce documents from a prior conviction used as an enhancement "when the relevant documentation was destroyed before [he] was ever made aware of the possibility of challenging that conviction." We affirm the trial court's order.
Background
In July 2015, appellant was charged with the felony offense of DWI. The indictment included three enhancement paragraphs alleging that appellant had previously been convicted of misdemeanor DWI in 1978 (trial court cause number 0524635), misdemeanor DWI in 1982 (trial court cause number 0650388), and felony DWI in 1984 (trial court cause number 0403718). As part of an agreement with appellant, the State abandoned the punishment enhancement paragraph alleging the 1984 felony DWI offense. Pursuant to his agreement with the State, appellant then pleaded guilty to the felony offense of DWI. The trial court accepted the plea agreement, found appellant guilty, assessed his punishment at confinement for ten years and a fine of $500, suspended the sentence, and placed him on community supervision for five years.
On March 18, 2016, appellant filed his application for a writ of habeas corpus, contending that his sentence was illegal "in light of an illegal jurisdictional enhancement and the unavailability of other valid convictions to enhance his sentence." Relying on Samudio v. State, 648 S.W.2d 312 (Tex. Crim. App. 1983), appellant argued that, because his 1978 judgment of conviction did not reflect that he validly waived his right to a jury trial, the sentence imposed was illegal and the conviction could not be used to enhance his 2015 DWI offense from a misdemeanor to a felony. He further argued that his 1984 felony conviction was unavailable to enhance the 2015 DWI offense because the 1984 conviction relied on the 1978 conviction as a jurisdictional enhancement.
The trial court held a hearing that was not recorded. On March 29, 2016, the trial court signed an order denying appellant's requested habeas corpus relief. The court also signed "Appellant's Proposed Findings of Fact and Conclusions of Law," finding and concluding that a waiver of appellant's right to trial "cannot be presumed from [the] silent record in Cause No. 0524635," the 1978 misdemeanor proceeding, and his 2015 sentence was illegal because the 1978 and 1984 convictions were "not available for use as jurisdictional enhancements." On April 21, 2016, the trial court signed another "Court's Findings of Fact and Conclusions of Law." In part, the trial court found and concluded:
13. The judgment in cause #0524635 contains the form recitation, "No jury having been demanded . . .", however, in that case, applicant entered a plea of guilty to an agreed punishment and did not receive a bench trial. No docket sheet from cause #0524635 was submitted as evidence.
14. The court finds that Samudio was a direct appeal case. Its ruling that a valid waiver cannot be presumed from a silent record has never been extended to collateral attacks on enhancements as in the present case.
15. In a collateral attack, the burden of proof is on the party attacking the validity of an enhancement to show that the entire record is silent as to the jury waiver. . . .
16. In the present case, [appellant] has failed to show that he did not waive a jury in the proceeding in question so as to overcome the presumption that his formal judgment speaks the truth and is in all thing regular. [Appellant] has failed to submit a complete record of the proceedings in the 1978 case, nor any evidence of those proceeding[s] other than the judgment, thus he has failed to carry his burden of proving that his waiver was invalid.
17. The court finds the sentence in cause #0524635 is not invalid based on Samudio and that it may be used as an enhancement. The court finds that the sentence in cause #0403718 is not illegal and that it may be used as an enhancement. . . .
21. . . . The court finds that [appellant's] sentence in the present case is not illegal and no harm has been shown in the present case. . . .
25. The court recommends the writ be denied.
After appellant filed his brief in this Court, the State moved to abate the appeal "to allow the trial court to clarify what its actual findings and conclusions are," asserting that the court's two sets of findings of fact and conclusions of law were "contradictory on matters that are material to the resolution of this appeal." Appellant then moved for abatement "to clarify the findings in this case," asserting that "[t]he record should reflect the understanding of the participants of the writ hearing, and [his] appeal should not be decided on the basis of a finding of fact that is inconsistent with the posture of [his] case before the trial court and the representations of counsel." We granted the motions, abated the appeal, and remanded the case to the trial court to clarify its findings of fact and conclusions of law. On remand, the trial court held a hearing and signed the "State's Proposed Findings of Fact on Abatement." The trial court found and concluded that it signed in error "the part of [appellant's] proposed findings of fact and conclusions of law indicating that the Court adopted those findings and conclusions," and that the findings of fact and conclusions of law entered on April 21, 2016, "were the basis for the denial of relief."
Standard of Review
Texas Code of Criminal Procedure article 11.072 establishes the procedure for an applicant to seek habeas corpus relief "from an order or a judgment of conviction ordering community supervision." TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (West 2015). Generally, an applicant seeking post-conviction habeas corpus relief must prove his claims by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). Under article 11.072, this Court has jurisdiction to consider an appeal of an order denying habeas corpus relief. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2015).
In reviewing a trial court's decision to deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). In an article 11.072 post- conviction habeas corpus proceeding, the trial judge is the sole finder of fact. See Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). Accordingly, we afford almost total deference to the court's findings of fact that are supported by the record, especially when the trial court's fact findings are based upon an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)); Ex parte Peterson, 117 S.W.3d at 819. In such instances, we use an abuse-of-discretion standard. See Ex parte Garcia, 353 S.W.3d at 787. However, if the resolution of the ultimate questions turns on an application of legal standards absent any credibility issue, we review the determination de novo. See Ex parte Peterson, 117 S.W.3d at 819. We will uphold the trial court's decision on any theory of law applicable to the case. Ex parte Evans, 410 S.W.3d 481, 484 (Tex. App.—Fort Worth 2013, pet. ref'd).
Discussion
In his first issue, appellant challenges the trial court's denial of habeas corpus relief on the basis that his 2015 sentence for felony DWI is illegal. He argues that the sentence is illegal because "Samudio error" rendered his 1978 conviction invalid and, thus, there were insufficient jurisdictional enhancements to raise the 2015 offense from a misdemeanor offense to a felony offense.
A claim of an illegal sentence may be raised in an application for a writ of habeas corpus. Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013) (citing Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006)). A sentence that is outside the range of punishment authorized by law is considered an illegal sentence. Id. (citing Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996)). To obtain habeas corpus relief, an applicant must demonstrate a cognizable irregularity and harm. Ex parte Parrott, 396 S.W.3d at 534. An applicant may demonstrate harm from an illegal sentence by showing "that he has no other conviction that could support the punishment range within which he was sentenced." Id. at 536 (citing Ex parte Rich, 194 S.W.3d at 510-14).
Section 49.09 of the Texas Penal Code raises a DWI offense from a misdemeanor to a third-degree felony if the State proves the defendant had two prior DWI convictions. See TEX. PENAL CODE ANN. §§ 49.04(b)-(d), 49.09(b)(2) (West Supp. 2016); see also Mapes v. State, 187 S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (citing Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001)) ("The two prior DWI convictions are jurisdictional elements of a felony DWI offense, and they must be proved to obtain a felony DWI conviction."). Here, the indictment alleged, as jurisdictional enhancements, that appellant had been convicted of the misdemeanor offense of DWI in 1978 and 1982. Appellant contends that the 1978 conviction cannot be used to enhance the 2015 offense because the 1978 conviction is invalid under Samudio.
The punishment for a third-degree felony offense may be enhanced to punishment for a second-degree felony if it is shown that the defendant has previously been convicted of two felonies. See TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2016). As part of its plea agreement with appellant, the State abandoned the punishment enhancement paragraph alleging the 1984 felony conviction. The trial court accepted the agreement and sentenced appellant to a term of confinement within the punishment range for a third-degree felony. Compare § 12.34(a) (West 2011) (providing punishment range of imprisonment for term of not more than ten years or less than two years), with id. § 12.33(a) (West 2011) (providing punishment range of imprisonment for term of not more than twenty years or less than two years).
In Samudio, the appellant pleaded not guilty to the misdemeanor offense of assault, and trial was to the court, which found him guilty. 648 S.W.2d at 313. On appeal, appellant contended that the trial court improperly proceeded to a bench trial because the record did not reflect a waiver of his right to a jury trial. The parties agreed that the record contained no evidence that appellant expressly waived his right to a jury trial, and the judgment recited only "[n]o jury having been demanded . . . ." Id. The Texas Court of Criminal Appeals concluded that this recitation did not establish the appellant's express waiver of his right to a jury trial. Id.; see Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (noting distinction "between the absence in the record of a demand for a jury trial and an affirmative waiver thereof"). The court held that, in a direct appeal, a waiver of a jury trial could not be presumed from "a silent record" and indicated that the State had the burden to establish a waiver. Samudio, 648 S.W.2d at 314-15 (citations omitted).
Here, appellant's 1978 judgment of conviction stated, "No jury having been demanded, trial proceeded before the Court; and after having heard the information read, the Defendant's plea of guilty therein, and the evidence submitted, the Court found the Defendant guilty of the offense . . . ." Relying on Samudio, appellant asserts that, because the 1978 judgment contained "the same form recitation" as in Samudio and "there was no record indicating that [he] waived his right to a jury trial in the 1978 DWI," his 1978 DWI fails to reflect his waiver of his right to a jury trial, is invalid, and could not be used for enhancement purposes.
This case, however, is distinguishable from Samudio. Unlike the Samudio appellant, who challenged his conviction in a direct appeal, appellant challenges his 1978 conviction in a collateral attack. See Ex parte Rodriguez, 466 S.W.3d 846, 852 (Tex. Crim. App. 2015) ("Our cases have consistently characterized habeas corpus as a collateral attack on a judgment of conviction."). Samudio "does not govern collateral attacks on judgments of conviction." Rogers v. State, 792 S.W.2d 841, 843 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (citing West v. State, 720 S.W.2d 511, 519 (Tex. Crim. App. 1986)); see Bruce v. State, 744 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, pet. ref'd) ("[T]he rule in Samudio was limited to direct appeals . . . .").
In a collateral attack, the party challenging the conviction based on lack of evidence of a jury waiver has the burden to show that the "entire record is silent as to jury waiver." Bruce, 744 S.W.2d at 619 (citing West, 720 S.W.2d at 519); see also Ex parte Richardson, 70 S.W.3d at 870 (stating applicant seeking post-conviction habeas corpus relief must prove his claims by preponderance of evidence). A party fails to meet his burden if he fails to bring forward the entire record from the prior conviction or other evidence to show that he did not waive his right to a jury trial. See Tate v. State, 120 S.W.3d 886, 890 (Tex. App.—Fort Worth 2003, no pet.) (citing Bruce, 744 S.W.2d at 619) (concluding appellant who failed to introduce entire record from prior conviction or any evidence that he did not waive right to jury trial did not establish that judgment from prior conviction used as enhancement was void); see, e.g., Kennedy v. State, No. 01-10-00733-CR, 2011 WL 2410132, at *2 (Tex. App.—Houston [1st Dist.] June 9, 2011, pet. ref'd) (mem. op., not designated for publication) (concluding, although record revealed documents from appellant's DWI conviction most likely would have been destroyed under record retention policies, appellant failed to present entire record to show that it was silent as to jury waiver).
In support of his habeas application, appellant provided only the 1978 judgment and did not provide the entire record of that conviction or any other evidence to show that he did not waive his right to a jury trial. The trial court found that appellant had failed to submit a complete record of the proceedings in the 1978 case or any evidence of those proceedings other than the judgment and, therefore, failed to carry his burden of proof. The trial court further concluded that the sentence in the 1978 conviction was not invalid based on Samudio and could be used as an enhancement, and the sentence in the 2015 conviction was not illegal. The record before the trial court when it considered appellant's application supports the trial court's findings and conclusions. Accordingly, we overrule appellant's first issue.
After the appeal was abated and reinstated, appellant filed a supplemental brief in which he raised two additional issues. In the first of these issues, appellant contends that, contrary to the trial court's findings, he met his burden to show entitlement to habeas relief because the judgment "is silent as to whether [he] waived the right to a jury trial" and is the only remaining record in the 1978 case. Appellant asserts that "most records related to [his] 1978 DWI misdemeanor case were destroyed" and, in support, refers to a "Certificate of Record Search" from the Harris County District Clerk. The State responds that any evidence showing that records relating to the 1978 conviction were destroyed was not before the trial court when it denied appellant's habeas application and cannot be used as a basis for reversing the trial court's order.
The Certificate of Record Search states that the district clerk "pursuant to appropriate state statutes regarding destruction of records, is destroying certain records" and, "[t]herefore, it may not be possible to provide access to or make copies of certain documents which have met the retention period determined for destruction." The certificate identifies trial court cause number 052463 as a case that has "met [its] retention date."
Appellant did not include the Certificate of Record Search with his application for a writ of habeas corpus that was considered by the trial court. The certificate is included with the abatement hearing record, which indicates appellant attached the certificate to his proposed supplemental findings. However, "[w]hen an appeal is abated, the trial court regains limited jurisdiction." Nava v. State, 480 S.W.3d 759, 763 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (citing Lewis v. State, 711 S.W.2d 41, 43-44 (Tex. Crim. App. 1986)). Generally, abatement does not authorize a trial court to conduct an evidentiary hearing to develop a record of new testimony and other evidence that was not presented at trial. Id. (citing Lewis, 711 S.W.2d at 43-44). We abated this appeal to allow the trial court to clarify its findings of fact and conclusions of law. The abatement did not provide for a hearing to allow additional evidence on appellant's application for a writ of habeas corpus. Accordingly, we conclude that appellant has not demonstrated that "the entire record" is silent as to jury waiver and overrule appellant's issue.
In the second issue in his supplemental brief, appellant contends that "[t]he trial court's decision was made without weighing all of the equities involved in the case" and "[g]iven the full balance of the equities in this case, this Court should grant relief on the basis that the record, as it exists, supports [his] claim, and that there is a reasonable probability that the 1978 misdemeanor DWI conviction is invalid." Appellant asserts that "[t]here was no systematic notification process that informed individuals convicted in Harris County that their convictions might have Samudio problems," his lawyer in the 1984 proceeding should have investigated and challenged the 1978 misdemeanor conviction while records remained available, and "[a]fter the passage of the Local Government Records Act in 1989, the Harris County District Clerk destroyed all records relating to [appellant's] 1978 misdemeanor conviction with the exception of the judgment in that case."
See TEX. LOC. GOV'T CODE ANN. § 202.001 (West 2016) (providing local government may destroy certain local government records); see also id. § 201.003(7), (8) (defining "local government" and "local government record").
The State responds that reversal based on any "maxims of equity" would be inconsistent with abuse-of-discretion review because appellant did not present the issue to the trial court and, if it was presented, the State would be able to raise the defense of laches to a collateral attack on this twenty-eight-year-old conviction. In a reply brief, appellant states that he objected to "the restated April 21, 2016 findings on equitable grounds." The abatement record reflects that, after this Court abated the case, appellant filed in the trial court "Objections to this Court's April 21, 2016 Findings of Fact and Supplemental Findings of Fact." He objected to those findings, stating that the result in the case was "inequitable, and contrary to principles in equity," and asserting that requiring him to produce documents that are now unavailable was "inequitable" and left him "without a practical remedy."
Appellant, however, did not assert an argument based on equity or provide any evidentiary support for such an argument in his habeas corpus application. As discussed, the trial court's jurisdiction on abatement was limited to clarifying its findings of fact and conclusions of law. See Nava, 480 S.W.3d at 763. Any arguments based on equity were not before the trial court when it considered appellant's application and do not provide a basis to reverse the trial court's order on appeal. See generally Ex parte Garcia, 353 S.W.3d at 787-88 (observing, in article 11.072 habeas case, trial judge "is the sole finder of fact" and court of appeals is "truly [an] appellate court[] in the article 11.072 context"). We overrule appellant's second issue in the supplemental brief.
Considering the evidence in the light most favorable to the trial court's ruling and deferring to the trial court's findings of fact and conclusions of law supported by the record, we conclude that appellant has not demonstrated that the trial court erred in denying his requested relief.
Conclusion
We affirm the order of the trial court.
Russell Lloyd
Justice Panel consists of Justices Keyes, Higley, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).