Opinion
01-21-00707-CR
12-29-2022
EX PARTE LESLIE PALOMO
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law No. 2 Galveston County, Texas Trial Court Case No. CV-0088967
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
SARAH BETH LANDAU JUSTICE
Leslie Palomo appeals from the denial of her post-conviction application for writ of habeas corpus seeking to set aside a misdemeanor conviction for theft. Palomo contends (1) she is actually innocent, (2) the conviction is void because she was given an illegal sentence, and (3) her plea was involuntary. We affirm the habeas court's denial of relief because Palomo did not meet her burden of proof for any of the three claims.
I. Background
Palomo was charged with committing a Class B misdemeanor offense of theft.
In September 2018, Palomo proceeded pro se and negotiated a plea agreement reducing her charge to a Class C misdemeanor offense of theft. The printed plea admonishment stated:
I am mentally competent and I understand that I am charged with the misdemeanor offense of Class C Theft and for which the punishment is by a fine not to exceed $500, or confinement in the Galveston County [] Jail not to exceed 6 days or both.
Palomo entered a plea of nolo contendere, was found guilty of the Class C misdemeanor, and was assessed a $300 fine. The judgment stated:
Leslie Palomo be and is found to be guilty as charged of the reduced offense of Class C Theft and that the State of Texas do have and recover of and from this same defendant a fine of $300 dollars and all costs of this prosecution, and that this same defendant be confined in the county jail to remain until said fine and all costs of this prosecution have been fully paid, for all of which let execution issue. Defendant is ordered to immediately report to the department of court services to pay in one lump sum on this day (or) to pay in installments as determined by the department of court services, his/her fine, fees, and/or court costs. Said defendant is given credit for time served in jail for a period of 1 days.
In September 2021, Palomo filed a habeas petition, arguing that her plea agreement resulted in an illegal sentence. In support, Palomo alleged that she was admonished that she was subject to jail time; she was sentenced to imprisonment pending payment of her fine; and she was given credit for one day in jail.
No evidentiary hearing was held. The trial court entered findings of fact and conclusions of law, summarized as follows: it found no controverted or unresolved issues of fact material to the disposition of Palomo's application for writ of habeas corpus; that Palomo entered a plea intelligently, knowingly, and voluntarily, and was found guilty of a Class C misdemeanor and assessed a fine of $300; Palomo received credit for time served in jail; Palomo was never confined in jail as part of her punishment; Palomo entered a payment plan for the assessment of the fine and costs, and did fully pay; and that Palomo's application was not made under oath and not supported by an attached affidavit. It also concluded that Palomo sought relief under article 11.09 of the Texas Code of Criminal Procedure; that Palomo's application was deficient; that there is no merit to Palomo's claim of an illegal sentence; that the punishment assessed was within the legal range of punishment; that the court is required to credit a defendant for the time spent in jail for their case; that any erroneous admonishment did not render the punishment illegal; that the plea form does not show that Palomo received an erroneous admonishment; that the court was not required to admonish Palomo; and that even if the admonishment was erroneous Palomo has not established that it rendered her plea involuntary.
The habeas court denied Palomo relief. This appeal followed.
II. Standard of Review
When reviewing the habeas court's decision to grant or deny relief, we view the facts in the light most favorable to the habeas court's ruling and uphold that ruling absent an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts arbitrarily or unreasonably. Ex parte Allen, 619 S.W.3d 813, 816 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd). The applicant for a writ of habeas corpus bears the burden of proving their allegations by a preponderance of the evidence. Kniatt, 206 S.W.3d at 664.
III. Discussion A. Substantial Compliance
Before considering the merits of Palomo's appeal, we first consider the State's argument that Palomo's application is deficient because it is unsworn. See TEX. CODE CRIM. PROC. ART. 11.14(5) (HABEAS PETITION MUST INCLUDE OATH THAT ALLEGATIONS OF PETITION ARE TRUE, ACCORDING TO BELIEF OF PETITIONER).
The lack of verification does not prevent the habeas court from acting or the appellate court from reviewing the habeas court's action. Druery v. State, 412 S.W.3d 523, 532-33 (Tex. Crim. App. 2013); Ex parte Golden, 991 S.W.2d 859, 861 (Tex. Crim. App. 1999) ("We hold that Article 11.14 does not limit habeas corpus jurisdiction."). The Texas Court of Criminal Appeals has suggested that the verification requirement can be rendered moot "to some extent." See Druery, 412 S.W.3d at 533 (describing mootness as occurring when trial court conducts hearing, non-moving party has chance to respond, non-moving party does not object to lack of verification, and moving party's motion is addressed on merits); Ex parte Golden, 991 S.W.2d at 861 n.2. Article 11.14(5) specifically requires that the "[o]ath must be made that the allegations of the petition are true, according to the belief of the petitioner." TEX. CODE CRIM. PROC. art. 11.14(5).
Palomo's original application was unverified, but she later submitted an unsworn declaration along with further briefing. Her unsworn declaration states:
I am the Applicant herein for issuance of a Writ of Habeas Corpus, and have read the Petition for Habeas Corpus filed in this case and the supplemental briefing; all statements of fact averred therein are true and correct, to the best of my knowledge, information, and belief.
This satisfies the requirements of article 11.14(5). See Ex parte Johnson, 811 S.W.2d 93, 97 (Tex. Crim. App. 1991) (holding that unsworn declaration "that all allegations and statements in the foregoing Writ of Habeas Corpus are true and correct to the best of my knowledge" substantially complied with certain statutory requirements, including requirements of Texas Code of Criminal Procedure article 11.14(5)). Therefore, we are not barred from reviewing the order denying Palomo's application for writ of habeas corpus, and we turn to reviewing the merits of Palomo's appeal.
B. Actual Innocence
Palomo contends that she is actually innocent of theft because her actions were not criminal. She argues that her employer was no longer the owner of the property at issue-a chair-because it had placed the property in a dumpster and thereby effectively consented to any third party taking the property.
1. Law
Texas Penal Code section 31.03(a) provides that "[a] person commits an offense if [s]he unlawfully appropriates property with intent to deprive the owner of property." TEX. PENAL CODE § 31.03(a). Section (b)(1) states that such an appropriation is unlawful if "it is without the owner's effective consent." Id. § 31.03(b)(1). "Owner" is defined as the person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor[.]" Id. § 1.07(a)(35)(A). "'Effective consent' includes consent by a person legally authorized to act for the owner." Id. § 1.07(a)(19).
An applicant may raise two types of innocence claims: a Herrera claim or a Schlup claim. Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim. App. 2006) (discussing Herrera v. Collins, 506 U.S. 390 (1993), and Schlup v. Delo, 513 U.S. 298 (1995)). A Herrera claim is a bare innocence claim that hinges on newly discovered evidence. Id. at 544. For a Schlup claim, innocence is tied to a showing of constitutional error that renders the conviction constitutionally invalid. Id. at 544- 45. A claim of innocence is not itself a constitutional claim but acts as a gateway for an applicant to have their constitutional claim considered. Ex parte Franklin, 72 S.W.3d 671, 676 (Tex. Crim. App. 2002) (quoting Schlup, 513 U.S. at 315). An applicant must show that the constitutional error probably resulted in the conviction of one who was actually innocent. Ex parte Spencer, 337 S.W.3d 869, 878 (Tex. Crim. App. 2011). This means "the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Franklin, 72 S.W.3d at 676 (quoting Schlup, 513 U.S. at 327).
2. Analysis
Palomo contends that she is raising a Schlup claim. As described, a Schlup claim is a procedural claim in which an applicant's claim of innocence does not provide the basis for relief, "but is tied to a showing of constitutional error at trial." Franklin, 72 S.W.3d at 675 (citing Schlup, 513 U.S. at 314). But Palomo only claims innocence without a showing of a separate constitutional error. Accordingly, we hold she has not carried her burden on actual innocence, and the trial court did not abuse its discretion by denying her habeas relief on this basis. See Schlup, 513 U.S. at 315 ("Schlup's claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his Strickland [v. Washington, 466 U.S. 668 (1984)] and Brady [v. Maryland, 373 U.S. 83 (1963)] claims.").
C. Illegal Sentence
Palomo contends that the language in the judgment stating that she must pay a $300 fine and all costs of the prosecution and "be confined in the county jail to remain until said fine and all costs . . . have been fully paid" is an illegal sentence because a Class C misdemeanor does not allow for confinement. The State argues that the punishment assessed was not illegal, and that any errors in the judgment are clerical errors that should be modified.
1. Law
An illegal sentence is one that is not authorized by law, so a sentence outside the range of punishment authorized by law is considered illegal. 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). "An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500." TEX. PENAL CODE § 12.23. When there is a negotiated plea agreement for an illegal range of punishment, the remedy is to vacate the plea and restore the parties to their original position. Thomas v. State, 516 S.W.3d 498, 501 (Tex. Crim. App. 2017).
"The classification of an error as clerical or judicial is a question of law." Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). "A clerical error is one which does not result from judicial reasoning or determination." Id. "A judicial error is an error which occurs in the rendering as opposed to the entering of a judgment." Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986).
The trial court is required to grant the defendant credit for time served when the defendant's sentence is pronounced. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). The credit for time served must be contained in the trial court's judgment. See TEX. CODE CRIM. PROC. ART. 42.01, § 1(18) ("THE JUDGMENT SHALL REFLECT . . . ANY CREDIT FOR TIME SERVED[.]"). A TRIAL COURT MUST ALSO CREDIT THE SENTENCE OF THE DEFENDANT FOR TIME THE DEFENDANT SPENT "IN JAIL FOR THE CASE . . . FROM THE TIME OF [HER] ARREST AND CONFINEMENT UNTIL [HER] SENTENCE BY THE TRIAL COURT," EXCEPT FOR TIME SERVED AS A CONDITION OF COMMUNITY SUPERVISION. Id. art. 42 .03, § 2(a)(1); see Ex parte Bynum, 772 S.W.2d 113, 114 (Tex. Crim. App. 1989).
2. Analysis
At issue is whether the preprinted language on Palomo's judgment form, discussing confinement until her fine and costs were fully paid, makes her sentence illegal even though she was never subjected to confinement. Palomo also points to the one day of credit that she was given as evidence of an illegal sentence.
When deciding whether a correction is of a judicial or a clerical error, we look to the judgment rendered, not the judgment that should or might have been rendered. Escobar, 711 S.W.2d at 231. We must defer to the habeas court's factual determinations that a judgment has been rendered and its contents if some probative evidence supports them, but we are not bound by the habeas court's legal determination of the nature of any error in the original judgment. Id. at 232. Here, the habeas court found that Palomo was "guilty of Class C misdemeanor theft and assessed a fine of $300." Because there is no transcript from Palomo's plea and sentencing, we cannot rely on an oral pronouncement by the trial court. But evidence to support this finding is in the judgment. The preprinted form included blank spaces where the trial court handwrote that Palomo was guilty of "Class C Theft" and that she was assessed a "$300" fine. Deferring to the habeas court's findings, this means that the error in stating the judgment was for confinement was an error in the entry of the judgment-a clerical error.
A court can correct the entry of a judgment that incorrectly states the judgment rendered. Id. at 231-32. The error that occurred in Palomo's judgment form is a clerical mistake that can be corrected because it did not result from judicial reasoning or determination. It was surplus language from a preprinted form. Matters that may be resolved by nunc pro tunc proceedings should not addressed by a writ of habeas corpus. See Ex parte Pena, 71 S.W.3d 336, 336-337 (Tex. Crim. App. 2002).
The appropriate remedy in this situation is for Palomo to present the issue to the trial court in a nunc pro tunc motion. If the trial court fails to respond, Palomo can seek relief in this Court by filing a writ of mandamus, unless there is a compelling reason not to do so. See, e.g., Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (en banc) ("[W]hen a court of appeals and [the Texas Court of Criminal Appeals] have concurrent, original jurisdiction of a petition for a writ of mandamus against the judge of a district or county court, the petition should be presented first to the court of appeals unless there is a compelling reason not to do so.").
As for the inclusion of a one-day credit for the time Palomo served in jail, this does not make the sentence illegal. The trial court must grant the defendant any credit for time served when sentence is pronounced. Ybarra, 149 S.W.3d at 148. The credit for time served must be contained in the trial court's judgment. See TEX. CODE CRIM. PROC. ART. 42.01, § 1(18) ("THE JUDGMENT SHALL REFLECT . . . ANY CREDIT FOR TIME SERVED[.]"). EVEN THOUGH PALOMO WAS NOT SUBJECT TO CONFINEMENT AS PART OF HER PUNISHMENT, THE TRIAL COURT CORRECTLY CREDITED HER FOR TIME SERVED BEFORE SENTENCING. ACCORDINGLY, WE HOLD THAT PALOMO'S ILLEGAL SENTENCE CLAIM IS NOT A BASIS FOR HABEAS RELIEF.
D. Involuntary Plea
In her final issue, Palomo contends that her plea of nolo contendere was not entered intelligently, knowingly, and voluntarily because she was admonished incorrectly. The State argues that Palomo failed to show that her plea resulted from an agreement that she would not have made had she been correctly admonished, so she cannot show that she was misled or harmed by the admonishment she received.
1. Law
The Texas Code of Criminal Procedure requires that, before accepting a plea of guilty or nolo contendere, the trial court must admonish the defendant, among other things, of the range of punishment attached to the charged offense. Tex. Code Crim. Proc. art. 26.13(a)(1). When the trial court delivers an incorrect admonishment as to the range of punishment, but the actual sentence falls within both the actual and misstated range, the trial court's admonishment substantially complies with article 26.13. Robinson v. State, 739 S.W.2d 795, 801 (Tex. Crim. App. 1987). But the statutory admonishments set out in article 26.13 are not required in misdemeanor proceedings. See TEX. CODE CRIM. PROC. ART. 26.13; Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003) ("We consistently have held that article 26.13 does not apply to misdemeanor cases.").
A trial court's substantial compliance with article 26.13 in admonishing a defendant constitutes a prima facie showing that the defendant's guilty plea was entered freely and voluntarily. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). The burden then shifts to the defendant to show that they were unaware of the consequences of such a plea such that they suffered harm. Id.; In re T.W.C., 258 S.W.3d 218, 222 (Tex. App.-Houston [1st Dist.] 2008, no pet.). Such a showing requires more than "a bare, subjective assertion" that the defendant did not know the correct range of punishment. In re T.W.C., 258 S.W.3d at 222 (citing Grays v. State, 888 S.W.2d 876, 879 (Tex. App.-Dallas 1994, no pet.)). Instead, the record must show a lack of comprehension of the proper punishment range by the defendant and that they were misled or harmed. Id.
A guilty plea waives the right to a jury trial, the right to confront one's accusers, and the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969); Kniatt, 206 S.W.3d at 664. To comply with due process of law, a guilty plea must be entered knowingly, intelligently, and voluntarily. Boykin, 395 U.S. at 242; Kniatt, 206 S.W.3d at 664. To be "voluntary," a guilty plea must be by the defendant's own free will and cannot be induced by threats, misrepresentations, or improper promises. Brady v. United States, 397 U.S. 742, 755 (1970); Kniatt, 206 S.W.3d at 664.
2. Analysis
Here, the admonishment to Palomo that she faced up to a $500 fine and six days' jail time, though incorrect, substantially complied with article 26.13 because the punishment assessed-a $300 fine-fell within the actual range of punishment and the misstated range of punishment. See Robinson, 739 S.W.2d at 801. This creates a prima facie showing that Palomo's guilty plea was entered freely and voluntarily and shifts the burden to Palomo to demonstrate the involuntariness of her plea. See Martinez, 981 S.W.2d at 197.
In Palomo's habeas application, she offered only her unsworn declaration to prove that she was unaware of the actual range of punishment. Habeas corpus proceedings are not direct appeals; instead, they are collateral attacks on a prior conviction. Ex parte Rodriguez, 466 S.W.3d 846, 852 (Tex. Crim. App. 2015). In a collateral attack on a prior conviction, the applicant bears the burden of bringing forward the entire record. See Ex parte Alexander, 598 S.W.2d 308, 310 (Tex. Crim. App. 1980); see also Tatum v. State, 861 S.W.2d 27, 29-30 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd) (observing that appellant collaterally attacking prior conviction based on lack of admonishment as to range of punishment had burden to show he was unaware of maximum range of punishment). Palomo's declaration standing alone cannot show that the habeas court abused its discretion in denying her application. See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) ("[I]n all habeas cases, sworn pleadings are an inadequate basis upon which to grant relief[.]"); cf. In re T.W.C., 258 S.W.3d at 223 (defendant and defense counsel testified at hearing about defendant's lack of knowledge of punishment range).
The record was not developed here as well as it could have been, because there was no hearing, but it does contain a Misdemeanor Plea of Guilty / Nolo Contendere signed by Palomo, the State, and the judge. This document contains multiple waivers, including a waiver of counsel, a waiver of a jury trial, a waiver of ten days' preparation, a waiver of confrontation, and a waiver of appeal. It also contains a confession and an admonishment on the range of punishment. Further, the document states:
After being duly admonished of the nature of the charges against me, of all my rights and the consequences of entering a plea of [] nolo contendere; and after the judge and I followed the procedures set out in Tex. Code Crim. Proc. Art. 1.051, choose to represent myself, and
I do so knowing of the dangers and disadvantages of self-representation; that I understand the charges against me and I knowingly and voluntarily waive my right to be represented by an attorney and to consult with an attorney; I waive my right to a trial by jury and my right to be tried before a jury, and all the above mentioned rights; and request the judge decide all of the issues in this case and hereby announce in open court and in writing my plea of [] nolo contendere to the offense alleged in the information and that I am guilty as charged. I further ask the judge to accept my plea, and waiver of trial by jury and enter judgment and proceed to sentence me according to the law and without further delay.
The judgment also states that Palomo waived her right to a jury.
The language in the documents Palomo signed when she entered her plea of nolo contendere indicate that she entered her plea intelligently, knowingly, and voluntarily. See Guerrero, 400 S.W.3d at 583 (relying on recitals in judgment to indicate that defendant's plea was entered intelligently, knowingly, and voluntarily); Ex parte Meredith, No. 11-17-00016-CR, 2017 WL 2986847, at *4 (Tex. App.- Eastland July 13, 2017, no pet.) (mem. op., not designated for publication) (relying on recitals in plea agreement memorandum and judgment to indicate that defendant's plea was entered intelligently, knowingly, and voluntarily).
Under the applicable standard of review, we defer to the habeas court's credibility determinations. Guerrero, 400 S.W.3d at 583 (applying standard from Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The habeas court was free to disbelieve Palomo's declaration. Even though the court did not make such a finding, we can infer that Palomo's declaration was implicitly rejected. See Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010).
Presented with only Palomo's declaration, and deferring to the habeas court's assessment of credibility, the record does not show that Palomo was unaware of the consequences of her plea such that she suffered harm. Thus, the habeas court did not abuse its discretion in denying relief.
IV. Conclusion
We affirm the habeas court's order denying relief.