No. 05-09-00611-CR
Opinion Filed September 21, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court of Appeals No. 2, Dallas County, Texas, Trial Court Cause No. MB03-53178-M.
Before Justices O'NEILL, FRANCIS, and LANG.
Opinion By Justice O'NEILL.
Lonnie Oliver, Jr. appeals the trial court's order denying him the relief sought by his application for writ of habeas corpus. In three issues, appellant challenges the trial court's denial of his application for writ of habeas corpus without conducting an evidentiary hearing and without being familiar with the previous proceedings and for not making written findings of fact and conclusions of law. We affirm the trial court's order.
Background
Appellant was convicted of misdemeanor driving while intoxicated in a trial before the court. Punishment was originally assessed at 120 days' confinement in jail, probated for twenty-four months, and an $1100 fine. After revoking appellant's community supervision, the judge sentenced appellant to ninety days' confinement in jail. Sentence was imposed on May 5, 2005. No appeal was taken at that time. In 2009, appellant filed an application for writ of habeas corpus challenging his DWI conviction. Appellant asserted the DWI conviction had the collateral consequences of limiting the programs in which he can participate in the federal prison system, increasing the length of the sentence imposed in federal court, and affecting his custody classification on that federal sentence. In the application, appellant asserted he did not receive effective assistance of counsel at his trial. He specifically complained that counsel: (1) failed to file a requested motion to suppress evidence; (2) "misled, misinstructed, and misinformed [appellant] to waive his constitutional rights to jury trial because counsel believed that the judge was his friend and she'd rule in his favor, instead of a jury trial"; and (3) "failed to present credible[,] reliable evidence toward the requested mitigating issues which could have cause[d] the proceedings to be substantially different in the sentencing phase." The trial court denied appellant the relief he sought without conducting a hearing. Applicable Law
An individual convicted of a misdemeanor offense may attack the validity of the conviction by way of application for writ of habeas corpus if the individual is either confined or restrained as a result of the charge or conviction or, if no longer confined, is subject to collateral legal consequences arising from the conviction. See Tex. Const. art. V, § 8; Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon); Ex parte Rinkevich, 222 S.W.3d 900, 902 (Tex. App.-Dallas 2007, no pet.) (citing Ex parte McCullough, 966 S.W.2d 529, 531-32 (Tex. Crim. App. 1998) (per curiam)). In reviewing the trial judge's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial judge's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial court's ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial judge's application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id. Analysis
In issues one and two, appellant asserts the trial judge violated appellant's Due Process and Due Course of Law rights by denying his application for writ of habeas corpus without either conducting a hearing or otherwise familiarizing himself with the previous proceedings. In his third issue, appellant contends the trial court erred by denying the application without entering findings of fact and conclusions of law. The State first responds that we have no jurisdiction because appellant actually filed his application on the form used for post-conviction applications for writ of habeas corpus in felony cases under article 11.07 of the code of criminal procedure. The State asserts that we should dismiss the appeal because we have no jurisdiction over habeas corpus proceedings under article. 11.07. See generally Tex. Code Crim. Proc. Ann. arts. 11.05, 11.07 (Vernon 2005 Supp. 2008-09). Although appellant used the form for an application for writ of habeas corpus under article 11.07, the contents of the application clearly reflect that he is seeking relief from his misdemeanor DWI conviction. The trial court denied habeas corpus relief by written motion on May 12, 2009, and there is nothing in the trial court's order to indicate the judge based his denial on the fact appellant sought relief using the incorrect form. We decline to elevate form over substance and conclude we have jurisdiction over this appeal. The State further responds that the trial court did not err because the provisions upon which appellant relies apply to applications for writ of habeas corpus filed pursuant to article 11.072 of the code of criminal procedure, not to article 11.09 applications. We agree with the State. Article 11.072 of the code of criminal procedure, which applies to applications for writ of habeas corpus filed by individuals on community supervision, contains the procedure the trial court must follow when ruling on the application. See generally id. art. 11.072 (Vernon 2005). Section 6 provides that the trial court may order affidavits, depositions, interrogatories, or a hearing, and may rely the court's personal recollection. See id. § 6(b). In any case in which the trial court does not determine the application is frivolous, the court must enter findings of fact and conclusions of law. See id. § 7(a). Appellant, however, is not on community supervision for the DWI. Rather, his original community supervision was revoked and he was sentenced to a period of confinement in jail. His complaint is that he is subject to collateral consequences of the DWI conviction. Therefore, article 11.09 of the code of criminal procedure is the governing statute, not article 11.072. See id. art. 11.09. Article 11.09 does not require either that a trial judge conduct a hearing or that the judge make written findings of fact and conclusions of law when ruling on an application for writ of habeas corpus brought under that section. See id. Moreover, nothing in the trial court's order suggests the trial court was not familiar with the prior proceedings before ruling on the application. In his application, appellant alleged trial counsel was ineffective by not investigating and filing "appropriate pretrial motions," by misleading appellant into waiving his right to a jury trial and being tried by the court, and by not presenting mitigating evidence. Among other things, the clerk's record contains copies of the affidavit for arrest warrant and the arrest warrant, the information and supporting affidavit, an omnibus pretrial motion, appellant's waiver of a jury, the state's sentence recommendation, the judgment following trial on appellant's not guilty plea, conditions of community supervision, a motion to revoke community supervision, and the judgment revoking community supervision. The omnibus pretrial motion includes a motion to suppress evidence. The jury waiver was signed by appellant, his attorney, and an assistant district attorney, and was approved by the trial court judge. The October 24, 2003 judgment shows that punishment was assessed at 120 days' confinement in jail, probated for twenty-four months, and an $1100 fine. The June 15, 2004 motion to revoke probation alleges violations of eight conditions of community supervision. The May 9, 2005 judgment revoking community supervision shows the trial court sentenced appellant to ninety days' confinement in jail and gave appellant back time credit for one year. Nothing suggests the trial judge did not review the documents that were part of the trial court's file before ruling on the application for writ of habeas corpus. Absent evidence to the contrary, we presume regularity of the trial court proceedings. See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000). Moreover, apart from bare assertions that trial counsel did not present mitigating evidence, appellant did not specify in his application what mitigating evidence was available and not presented. After reviewing the record before us, we conclude the trial court did not err by denying appellant the relief sought by his application for writ of habeas corpus. We resolve appellant's three issues against him. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.