Opinion
04-21-00203-CR
11-30-2022
EX PARTE Armando RAMOS
Do Not Publish
From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR6442-W1 Honorable Velia J. Meza, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
Appellant Armando Ramos unsuccessfully sought post-conviction habeas relief from a conviction of one count of driving while intoxicated, a Class B misdemeanor. Tex. Penal Code Ann. § 49.04(b); Tex. Code Crim. Proc. Ann. art. 11.09. In one issue, Ramos contends that the habeas court abused its discretion because the underlying conviction violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. We affirm.
I. Background
On April 4, 1990, a state district court sitting in Cameron County, Texas convicted Ramos on one felony count of aggravated sexual assault of a child. Ramos served part of his sentence for that conviction by confinement, but on September 26, 2012, he was paroled.
On April 26, 2017, Ramos allegedly committed an intoxication assault in Bexar County, Texas. Tex. Penal Code Ann. § 49.07(a)(1). The allegations underlying the alleged intoxication assault prompted Ramos's parole officer to initiate a parole revocation proceeding. On December 7, 2017, Ramos's parole was revoked, and he was remanded back to confinement. Approximately six months later, a Bexar County grand jury indicted Ramos on one count of intoxication assault. On September 20, 2019, Ramos entered into a plea bargain agreement with the State. Under the agreement, Ramos pleaded guilty to the lesser offense of driving while intoxicated, a Class B misdemeanor, and the State recommended a sentence of one-hundred-eighty days' confinement in jail, which he had already served. The trial court signed a judgment of conviction and sentence in accordance with the terms of the plea bargain (hereinafter "the DWI judgment"). Ramos attempted to appeal from the DWI judgment, but we dismissed his appeal because the trial court had not certified his right to appeal under Texas Rule of Appellate Procedure 25.2. See Ramos v. State, No. 04-19-00709-CR, 2020 WL 354777, at *1 (Tex. App.-San Antonio Jan. 22, 2020, no pet.) (per curiam) (mem. op., not designated for publication).
After we issued our opinion, Ramos applied to the Texas Court of Criminal Appeals for habeas relief from the DWI judgment under article 11.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07, § 1 ("This article establishes the procedures for an application for writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death.") (emphasis added). The court of criminal appeals dismissed Ramos's habeas application.
Thereafter, Ramos returned to the court that signed the DWI judgment, and he sought habeas relief from it. In the habeas court, Ramos contended that the sentence imposed by the DWI judgment and the revocation of his parole constituted a double jeopardy violation. The habeas court considered Ramos's request for relief under article 11.09 of the Texas Code of Criminal Procedure, and it denied the relief Ramos sought. Ramos now appeals the habeas judge's ruling.
II. Discussion
A. Jurisdiction
In Ex parte Rurt, 499 S.W.2d 109, 110 (Tex. Crim. App. 1973), a habeas applicant challenged an initial misdemeanor driving while intoxicated conviction that was used to enhance two subsequent driving while intoxicated charges into felonies. The court observed that it "must determine whether the question raised by this petition is moot, by reason of the fact that petitioner has been released from confinement." Id. The Texas Court of Criminal Appeals then held that the habeas application was not moot because "the imposition of heavier penalties in subsequent convictions" was a collateral legal consequence. Id.
Though it did not mention Rurt, the court reaffirmed its collateral legal consequences rule in Ex parte Schmidt, 109 S.W.3d 480, 482 (Tex. Crim. App. 2003), an opinion that the dissent cites. In Schmidt, the habeas applicant challenged two prior driving while intoxicated convictions, arguing that he was "under continuing restraint for jurisdictional purposes because the State has sought enhanced punishment in a state-jail felony prosecution based on those convictions." Id. at 481. As the dissent would do here, the Fourteenth Court of Appeals dismissed the habeas application for want of jurisdiction. Id. The Texas Court of Criminal Appeals recited the lower court's holding as:
A plain reading of article 11.09 suggests that one must be "confined on a charge of misdemeanor" before an application for habeas corpus relief may be made. Thus, just as with 11.07, an application for habeas corpus relief will not lie under article 11.09 unless the applicant is "confined" pursuant to a commitment for a misdemeanor conviction. Ex parte Oyedo, 939 S.W.2d 785, 786 (Tex. App.- Houston [14th Dist.] 1997, pet. ref'd).Ex parte Schmidt, 109 S.W.3d at 482 (footnote omitted). The Texas Court of Criminal Appeals went on to "hold that the Fourteenth Court of Appeals' interpretation of Article 11.09 in this appellant's cases, and in Ex parte Oyedo, 939 S.W.2d 785 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd), is incorrect." Ex parte Schmidt, 109 S.W.3d at 483-84.
At least one of our sister courts has recognized and applied Schmidt in a case where a habeas applicant challenged a single prior conviction for driving while intoxicated that was being used to enhance a subsequent driving while intoxicated charge. See Ex parte Reyna, 435 S.W.3d 276, 278 (Tex. App.-Waco 2014, no pet.) (recognizing that the court of criminal appeals "has held that a county court has jurisdiction to entertain a request for habeas relief like [the applicant's] when the applicant is not currently confined.") (citing Schmidt, 109 S.W.3d at 481; Ex parte Ali 368 S.W.3d 827, 831-32 (Tex. App.-Austin 2012, pet. ref'd) (discussing collateral legal consequences resulting from prior conviction); Ex parte Rodriguez, No. 14-10-00529-CR, 2011 WL 61858, at *2 (Tex. App.-Houston [14th Dist.] Jan. 6, 2011, no pet.) (mem. op., not designated for publication) ("Collateral consequences related to a conviction, such as the use of the conviction to enhance punishment in other cases, may also constitute confinement.")); see also Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim. App. 1993) ("A judgment of conviction for a misdemeanor offense may have detrimental collateral consequences whether or not probation is completed without a hitch or jail time is actually served. If a misdemeanor judgment is void, and its existence may have detrimental collateral consequences in some future proceeding, it may be collaterally attacked, whether or not a term of probation was successfully served out.") (emphasis added).
The dissent would hold that "[b]ecause Ramos has failed to carry his burden of showing how he is confined, restrained, or subject to collateral legal consequences, the trial court did not have jurisdiction to consider his habeas application." Ex parte Ramos, No. 04-21-00203-CR, slip op. at 3 (Tex. App.-San Antonio Nov. 30, 2022, no pet. h.) (dissenting mem. op., not designated for publication). The State has not raised any jurisdictional concerns, and we do not share the dissent's implicit determination that the DWI judgment does not subject Ramos to collateral legal consequences. Under Rurt, Schmidt, and their progeny, Ramos's habeas application is not jurisdictionally infirm. Therefore, we find that the habeas court had jurisdiction to entertain Ramos's application for habeas relief.
B. Double Jeopardy
The merits of Ramos's appeal are reviewed under a well-recognized standard of review. An appellate court reviewing a habeas judge's ruling in an article 11.09 application for writ of habeas corpus must view the evidence in the record in the light most favorable to the judge's ruling and must uphold that ruling absent an abuse of discretion. Diamond v. State, 613 S.W.3d 536, 544 (Tex. Crim. App. 2020). An appellate court affords almost total deference to a habeas court's factual findings when they are supported by the record, especially when those findings are based on credibility and demeanor. Id. This degree of deference also applies to any implied findings and conclusions supported by the record. Id. However, if the resolution of the ultimate question turns only on the application of legal standards, the appellate court reviews those determinations de novo. Id. The reviewing court will uphold the habeas court's ruling if it is correct under any theory of applicable law. Id. at 544-45.
Ramos's sole issue on appeal is that the habeas court erred in denying him relief because the sentence imposed in the DWI judgment and the revocation of his parole constitute two punishments for the same conduct, in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The State contends that Ramos's double jeopardy claim is meritless, and it references our opinion in Ex parte Peralta, 87 S.W.3d 642, 646 (Tex. App.-San Antonio 2002, no pet.) to support its position. We agree with the State.
We note that Ramos has submitted multiple "briefs" to this court. However, Ramos is represented by counsel, and a defendant in a criminal matter, represented by counsel, is not entitled to a hybrid representation. See Ex parte Bohannan, 350 S.W.3d 116, 116 n.1 (Tex. Crim. App. 2011) (stating because habeas applicant was represented by counsel and not entitled to hybrid representation, court would disregard and take no action on the "numerous" submissions he filed pro se). Accordingly, we will address only the arguments raised by Ramos's counsel.
In Peralta, a parolee was charged with misdemeanor assault, which caused a parole revocation proceeding to be initiated. Id. at 644. The hearing officer who administered the parole revocation proceeding found, among other things, that the complainant in the assault case refused to testify and concluded that there was insufficient evidence to establish that the parolee violated a condition of his parole by allegedly engaging in the assault. Id. at 644-45. The parolee then sought pre-trial habeas relief from the pending assault charge on the grounds that prosecution was barred by collateral estoppel and double jeopardy. Id. at 645-48. In analyzing the collateral estoppel issue, we wrote:
Generally, under federal law, a parole revocation hearing is not a stage of criminal prosecution. The Fifth Circuit has held that double jeopardy does not apply to parole and probation revocation proceedings because such proceedings are not designed to punish a criminal for the violation of a criminal law, but to determine whether a parolee or probationer has violated the conditions of his parole and probation. With these principles in mind, the Fifth Circuit specifically held that collateral estoppel did not preclude the State of Texas from prosecuting a defendant for involuntary manslaughter where the evidence to support the defendant's bond revocation was found to be insufficient. The Fifth Circuit reasoned that bond revocation proceedings are not designed to obtain a conviction for an offense. All Texas courts of appeals which have addressed the issue before this court have held that collateral estoppel does not bar a subsequent criminal prosecution for an offense that was the basis of a parole revocation.Id. at 646 (citations omitted). Ultimately, we overruled the applicant's double jeopardy issue for the same reasons why we overruled his collateral estoppel issue. Id. at 648; see also Trevino v. State, No. 03-96-00607-CR, 1997 WL 805125, at *1 (Tex. App.-Austin Jan. 8, 1997, pet. ref'd) (not designated for publication) ("It has long been held by Texas courts and other courts that it is not unconstitutional for a defendant to be tried and convicted of a criminal offense when the same conduct has been used to administratively impose disciplinary measures or to revoke probation or parole.").
In this case, unlike in Peralta, Ramos's parole was revoked. However, this distinction should not preclude us from applying the rule that a parole revocation hearing is not a stage of criminal prosecution. See Peralta, 87 S.W.3d at 646. Accordingly, Ramos has not been subjected to multiple sentences for the same conduct and his double jeopardy claim fails. Therefore, we overrule Ramos's sole issue.
III. Conclusion
We affirm the habeas court's order denying Ramos's application for habeas relief.
DISSENTING OPINION
Luz Elena D. Chapa, Justice
Appellant Armando Ramos appeals the trial court's denial of his application for a post-conviction writ of habeas corpus, arguing his misdemeanor conviction subjected him to double jeopardy. The majority opinion affirms the trial court's denial of Ramos's habeas application. Because I believe the trial court did not have jurisdiction to consider the habeas application, I respectfully dissent.
The 11.09 Habeas Application
"A defendant convicted of a misdemeanor offense may attack the validity of his conviction by way of habeas corpus if he is either (1) confined or restrained as a result of a misdemeanor charge or conviction, or (2) is no longer confined, but is subject to collateral legal consequences resulting from the conviction." Ex parte Rucker, No. 05-21-00364-CR, 2022 WL 714744, at *3 (Tex. App.-Dallas Mar. 10, 2022, pet. ref'd) (mem. op., not designated for publication) (citing State v. Collazo, 264 S.W.3d 121, 125-26 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd)). See generally Tex. Code Crim. Proc. arts. 11.09, 11.21, 11.22; Ex parte Schmidt, 109 S.W.3d 480, 482-84 (Tex. Crim. App. 2003). "To prevail upon a post-conviction writ of habeas corpus, [appellant] bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief." Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); Collazo, 264 S.W.3d at 126. The habeas applicant must therefore prove he is confined, restrained, or subject to collateral legal consequences resulting from his misdemeanor conviction. See Collazo, 264 S.W.3d at 126; see also Schmidt, 109 S.W.3d at 481-84; Rucker, 2022 WL 714744, at *3. These requirements are jurisdictional. See Ex parte Cathcart, 13 S.W.3d 414, 417 (Tex. Crim. App. 2000) ("Because we find that appellant was neither held to bail nor legally restrained in her liberty on the charge of intoxication assault, we must also find that the habeas corpus jurisdiction of the district court was not properly invoked."); Collazo, 264 S.W.3d at 125-26 (concluding habeas applicant properly invoked trial court's jurisdiction by demonstrating he was subject to collateral consequences because he was denied opportunity to obtain Texas peace officer license); Le v. State, 300 S.W.3d 324, 326 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (concluding habeas applicant properly invoked trial court's jurisdiction by demonstrating he was subject to collateral consequences because then-present ICE detention and potential deportation based solely on misdemeanor convictions).
The habeas applicant must also establish the confinement or restraint is a result of the conviction that he challenges in his habeas application. See Le, 300 S.W.3d at 326 (habeas applicant must establish collateral legal consequences resulted from her Texas misdemeanor convictions); Collazo, 264 S.W.3d at 125-26 (defendant may attack misdemeanor conviction provided he is confined, restrained, or subject to collateral legal consequences resulting from conviction); see also Cathcart, 13 S.W.3d at 417; In re Crocker, No. 05-21-00692-CV, 2021 WL 4621765, at *1 (Tex. App.-Dallas Oct. 7, 2021) (orig. proceeding) ("Without proof that relator is being restrained or confined as a result of the DWI arrest, relator is not entitled to seek habeas relief.").
Ramos alleged in his habeas application he was offered "time served" for a guilty plea on his misdemeanor charge of driving while intoxicated, and he accepted that deal. This is consistent with the record, which shows Ramos was sentenced to time served, and the trial court's findings of fact and conclusions of law, which provide "[Ramos's] sentence was satisfied as time served." Although Ramos remains confined, the record shows he is not confined or restrained as a result of a misdemeanor charge or conviction. Instead, his confinement results from the revocation of his parole with respect to his conviction for felony aggravated sexual assault of a child, which occurred two years before his guilty plea on his misdemeanor DWI conviction. Ramos does not identify any other proof he is confined, restrained, or subject to collateral legal consequences because of his misdemeanor DWI conviction. See Tex. Code Crim. Proc. arts. 11.21 & 11.22; Tatum, 846 S.W.2d at 327; Collazo, 264 S.W.3d at 126; Brumley, 2018 WL 2054625, at *1.
Because Ramos has failed to carry his burden of showing how he is confined, restrained, or subject to collateral legal consequences, the trial court did not have jurisdiction to consider his habeas application. See Cathcart, 13 S.W.3d at 417; Ex parte Huerta, 582 S.W.3d 407, 413 (Tex. App.-Amarillo 2018, pet. ref'd) (vacating trial court's order and dismissing appeal for want of jurisdiction where release from Lubbock County confinement rendered appeal of trial court's order moot); Ex Parte Galvan-Herrera, No. 13-11-00380-CR, 2012 WL 1484097, at *7 (Tex. App.- Corpus Christi-Edinburg Apr. 26, 2012, pet. ref'd) (mem. op., not designated for publication) (vacating and dismissing for lack of jurisdiction). Without jurisdiction, the trial court improperly considered Ramos's habeas application and denied it. The majority opinion, however, implicitly finds the trial court had jurisdiction to consider Ramos's application and ignores the burden Ramos must carry to show he is confined, restrained, or subject to collateral legal consequences as a result of his misdemeanor DWI conviction. To the extent the majority reasons the State has not raised these jurisdictional concerns, we are "obligated to review issues affecting jurisdiction." See Collazo, 264 S.W.3d at 126, n.2.
Conclusion
Because Ramos failed to meet his burden and show how he is confined, restrained, or otherwise subject to collateral legal consequences, he failed to invoke the trial court's jurisdiction to consider his 11.09 habeas application. I would therefore vacate the trial court's April 9, 2021 order denying habeas relief and dismiss Ramos's misdemeanor habeas application for lack of jurisdiction.