Opinion
No. 08-13-00298-CR
12-12-2014
EX PARTE: JESUS ARANDA LUJAN
Appeal from 83rd District Court of Pecos County, Texas (TC # 2936) ORDER
Jesus Aranda Lujan filed a Petition Writ of Habeas Corpus challenging a plea of nolo contendere that he entered to a charge of aggravated sexual assault of a child. The Petition was filed pursuant to TEX.CODE CRIM.PROC.ANN. art. 11.072 (West Supp. 2014) and asserts that Lujan's right to be informed of the immigration consequences of his plea, as described in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed2d. 284 (2010), was violated. Without comment on the merits of the case, we abate the appeal and remand for clarification of the Order denying the Petition, and if appropriate, entry of findings of fact and conclusions of law.
The Petition for Writ of Habeas Corpus was filed on June 21, 2013. Attached to the Petition was: the affidavit of Lujan's habeas attorney attesting to the truth of the facts as alleged in the pleading; a notice for Lujan to appear in a federal removal proceeding; an Order for Deferred Adjudication reflecting his state court plea; an Order Imposing Conditions of Community Supervision; and his own affidavit. The matter was set for hearing on September 10, 2013.
Article 11.072 refers to the pleading as an "application." We use the terms application and petition interchangeably in this Order.
At the hearing, the trial judge admitted additional exhibits, including the transcript of the plea hearing and the plea papers with written admonishments that Lujan acknowledged and signed at the time of the plea. At the conclusion of both sides' presentations, the trial judge stated that he was denying the Petition, and his comments suggest that materials admitted at the hearing played a role in that decision. The trial court signed a written order dated October 2, 2013 that simply recites "[u]pon hearing and considering argument from counsel for petitioner and from the State, the petition is hereby DENIED." No findings of fact or conclusions of law are in the record before us.
The Petition was filed pursuant to TEX.CODE CRIM.PROC.ANN. art. 11.072. Section 7(a) of that article provides:
If the court determines from the face of an application or documents attached to the application that the applicant is manifestly entitled to no relief, the court shall enter a written order denying the application as frivolous. In any other case, the court shall enter a written order including findings of fact and conclusions of law. The court may require the prevailing party to submit a proposed order.Id. A trial court may dispose of an application for writ of habeas corpus in one of two ways. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87-88 (Tex.App.--Houston [1st Dist.]. 2014, no pet.); Ex parte Enriquez, 227 S.W.3d 779 (Tex.App.--El Paso 2005, pet. ref'd). If the application is frivolous on its face, the trial court may enter a written order denying the application. To use this procedure, the trial court must look solely to the application itself, and those documents that may be attached to it. Ex parte Zantos-Cuebas, 429 S.W.3d at 88.
The second avenue for resolving the application contemplates something more, such as an evidentiary hearing. Id. art. 11.072, § 6(a). Unless the trial court disposes of the application as being frivolous on its face, it "shall enter a written order including findings of fact and conclusions of law." Id. art. 11.072, § 7(a). Those findings should address all the disputed issues and not "merely repeat and restate the parties' arguments." See Ex parte Flores, 387 S.W.3d 626, 634 (Tex.Crim.App. 2012)(criticizing a trial court's findings of fact and conclusions of law which were largely a recitation of the evidence presented at the hearing and did nothing more than restate the parties' arguments).
Here, the order denying the petition for writ of habeas corpus does not include any findings of facts and conclusions of law, and nor does it indicate that the application was denied for being facially frivolous. The trial judge at the hearing discussed certain exhibits admitted at the hearing which were not part of the original application and its attachments. This suggests the trial court did not dismiss the application as frivolous on its face. If that is the case, Article 11.072, § 7(a) requires findings of fact and conclusions of law. From our review of the briefs filed by the parties, it has become apparent to this Court that the lack of such findings has hampered the parties' analysis of the two part test under Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) that both parties concede control this dispute.
We accordingly abate the appeal and remand the case for the trial court to clarify its order to indicate whether it intended to deny the application as frivolous, based only on the application and its attachments, and if not, to enter the requisite findings of fact and conclusion of law as required by Article 11.072, § 7(a).
The trial court shall, within thirty days after the date of this Order: (1) make appropriate orders and, if appropriate, enter findings of fact and conclusions of law; and (2) deliver any orders and findings of fact and conclusions of law to the trial court clerk. The trial court clerk shall: (1) prepare a supplemental clerks record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerks record with the clerk of this Court within thirty days after the date of this Order.
IT IS SO ORDERED THIS 12TH DAY OF DECEMBER, 2014.
PER CURIAM Before McClure, C.J., Rodriguez, and Hughes, JJ.