Opinion
No. 11-19-00398-CR
11-05-2020
EX PARTE CRISTO RAUL VALDEZ
On Appeal from the County Court at Law No. 2 Midland County, Texas
Trial Court Cause No. CR150996
MEMORANDUM OPINION
Appellant, Cristo Raul Valdez, seeks habeas corpus relief from a 2015 conviction for the Class A misdemeanor offense of possession of a dangerous drug. Appellant filed an application for writ of habeas corpus in the trial court. See TEX. CODE CRIM. PROC. ANN. arts. 11.072, .09 (West 2015). In his application, Appellant asserted a claim of actual innocence and a claim related to the lack of counsel at the time of his conviction. The trial court denied Appellant's application. We affirm.
On appeal, Appellant presents two related issues. In his first issue, Appellant contends that the trial court erred when it denied habeas relief because Appellant met his burden to show actual innocence under Schlup v. Delo, 513 U.S. 298 (1995). In his second issue, Appellant asserts that the trial court erred when it denied habeas relief because Appellant's fundamental right to counsel was violated at the time of his plea of nolo contendere to a deportable offense, resulting in an involuntary and unknowing plea.
Cognizable habeas corpus claims are limited to claims of "jurisdictional or fundamental defects and constitutional claims." Ex parte Tuley, 109 S.W.3d 388, 393-94 (Tex. Crim. App. 2002) (quoting Ex parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002)). The Court of Criminal Appeals has recognized two types of "innocence" claims: a Herrera claim and a Schlup claim. Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim. App. 2006); see Schlup, 513 U.S. at 315; Herrera v. Collins, 506 U.S. 390, 416-17 (1993). A Herrera claim is a substantive claim in which a person who was convicted in an error-free trial asserts a "bare claim of innocence" based solely on newly discovered evidence. Brown, 205 S.W.3d at 544; see Schlup, 513 U.S. at 314. A Schlup claim is a procedural claim that "'does not by itself provide a basis for relief,' but is intertwined with constitutional error that renders a person's conviction constitutionally invalid." Brown, 205 S.W.3d at 544-45 (quoting Schlup, 513 U.S. at 315); see Schlup, 513 U.S. at 314-15. In a Schlup claim, evidence demonstrating innocence is a prerequisite that the applicant must satisfy to have an otherwise barred constitutional claim (such as where the applicant has previously filed an application for writ of habeas corpus) considered on the merits. Schlup, 513 U.S. at 314-15; Ex parte Villegas, 415 S.W.3d 885, 886 (Tex. Crim. App. 2013)
Although it is not clear from the record whether this appeal relates to an initial or a subsequent habeas corpus application, Appellant indicates that he has brought a Schlup claim. He argues that he is entitled to relief under Schlup because he is innocent and because his constitutional rights were violated when the trial court failed to appoint counsel and failed to obtain a knowing and voluntary waiver of counsel that set out the dangers of self-representation without the benefit of immigration advice from an attorney. Under Schlup, a review of the merits of a constitutional claim is justified once a threshold showing of innocence has been made. 513 U.S. at 317. An applicant does not meet the threshold requirement unless he shows that, in light of new evidence, "it is more likely than not that no reasonable juror would have convicted him." Id. at 327; see also id. at 329. Appellant, however, has failed to meet his burden to show actual innocence or a constitutional violation.
See Villegas, 415 S.W.3d at 887 (holding that, because Villegas's claims of ineffective assistance of counsel were not procedurally barred as subsequent claims, a Schlup innocence claim was not proper).
We review the trial court's ruling on a habeas application under an abuse of discretion standard. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see also Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An applicant seeking postconviction habeas corpus relief bears the burden of establishing by a preponderance of the evidence that the facts entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We view the evidence presented in the light most favorable to the trial court's ruling. Wheeler, 203 S.W.3d at 324; Kniatt, 206 S.W.3d at 664. The trial court is the sole finder of the facts, and the appellate court must afford almost total deference to a trial court's findings of fact when those findings are supported by the record. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (applying the standard from Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011) (same).
To the extent that Appellant asserts a claim of actual innocence, he has failed to meet his burden with respect to new evidence. Appellant was charged with and convicted of the Class A misdemeanor offense of possession of a dangerous drug, to wit: tramadol. See TEX. HEALTH & SAFETY CODE ANN. § 483.041 (West 2017). We do not have a reporter's record from Appellant's plea hearing. The clerk's record reflects that Appellant pleaded nolo contendere and that the trial court assessed Appellant's punishment at confinement for ten days in the county jail in accordance with the plea agreement that had been entered into between Appellant and the State.
We note that the absence of a record is understandable because the statutory admonishments set out in Article 26.13 of the Code of Criminal Procedure are not required to be given in misdemeanor proceedings. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (West Supp. 2020); Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003); see also Johnson v. State, 614 S.W.2d 116, 120 n.1 (Tex. Crim. App. 1981) ("However commendable it may be for a trial judge to admonish one accused of a misdemeanor offense, as he must where a person is charged with a felony, . . . there is no requirement in Texas law for a trial court to admonish an accused person of anything if the offense is classified as a misdemeanor.").
In an unsworn declaration attached to his application for writ of habeas corpus, Appellant stated that he pleaded guilty even though he was innocent because he "just wanted this all to go away as soon as possible." Appellant stated that, while he was driving a car that he had borrowed from his friend Maria Cruz Cortina, he was pulled over by police for a traffic violation. After the police found pills in the glove box, Appellant told the police that the pills were not his, that they "might" belong to his friend, and that "her name should be on the bottle."
In an affidavit attached to Appellant's application for writ of habeas corpus, Maria Cruz Cortina averred that she had loaned her car to Appellant, that the tramadol found in her car belonged to her, and that she had a prescription for tramadol under her married name, Maria C. Esparza. Appellant's evidence, if true, does not constitute newly discovered or newly available evidence that will support a claim of actual innocence. See Ex parte Spencer, 337 S.W.3d 869, 878 (Tex. Crim. App. 2011); Brown, 205 S.W.3d at 545; Ex parte Meredith, No. 11-17-00016-CR, 2017 WL 2986847, at *6 (Tex. App.—Eastland July 13, 2017, no pet.) (mem. op., not designated for publication). The identity of the woman from whom Appellant borrowed the car was known to Appellant at the time of his plea. See Spencer, 337 S.W.3d at 878; Brown, 205 S.W.3d at 545. Thus, the identity of the woman who owned the car and had a prescription for tramadol does not constitute evidence that is "newly available or newly discovered." See Spencer, 337 S.W.3d at 878. Additionally, the trial court could have found that Appellant's "new" evidence failed to show that no reasonable juror would have convicted Appellant if this evidence had been presented to a jury.
Furthermore, we must afford a knowing, intelligent, and voluntary guilty plea the "highest level of respect." Tuley, 109 S.W.3d at 393. "When a person attacks the validity of his prior guilty plea as that plea is reflected in the written judgment, he bears the burden of defeating the normal presumption that recitals in the written judgment are correct." Guerrero, 400 S.W.3d at 583. "Those written recitals 'are binding in the absence of direct proof of their falsity.'" Id. (quoting Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984)).
The clerk's record contains a Temporary Waiver of Right to Counsel signed by Appellant and a Waiver of Rights by Unrepresented Defendant on a Plea of Guilty or No Contest to a Misdemeanor Offense, which was signed by Appellant, the prosecutor, and the presiding judge. The second document contains numerous written waivers and stipulations, including a waiver of counsel, a waiver of a jury trial, a waiver of the rights to remain silent and to confront witnesses, a waiver of a presentence investigation, a waiver of ten days' preparation, an admonishment on the applicable range of punishment, and the following admonishment:
I have been warned and understand that if I am not a citizen of the United States of America, a plea of guilty or no contest will make me subject to automatic deportation and exclusion from admission to this country or the denial of naturalization under federal law.
Additionally, the trial court's judgment, which Appellant also signed, reflects that Appellant was advised of his rights and that Appellant waived those rights in open court. The trial court indicated that Appellant "understood" the nature of the offense, the range of punishment, and the consequences of his plea. The trial court determined that Appellant's plea "was freely and voluntarily made." The trial court accepted Appellant's plea, found him guilty, and assessed his punishment in accordance with the terms of the plea agreement that had been entered into between Appellant and the State.
Moreover, when the record reflects that a defendant in a misdemeanor case signed a written waiver of counsel in court and did not contest his guilt and when the record is absent any contradicting evidence or evidence that the defendant was coerced or intimidated, the record is sufficient to support a finding that the defendant's waiver of counsel was valid. Hatten v. State, 89 S.W.3d 160, 163 (Tex. App.—Texarkana 2002, no pet.). Appellant signed such a waiver in this case, and there is nothing in the record to indicate that he was coerced or intimidated to do so. Thus, the record supports a finding that Appellant's waiver of counsel was valid and that his fundamental right to counsel was not violated.
Furthermore, with respect to deportation consequences, we note that Appellant was already involved in removal proceedings at the time of his plea and that, though it was not required to do so in a misdemeanor case, the trial court specifically warned Appellant about the deportation consequences of his plea. See State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex. Crim. App. 1999) (regarding requirement for admonishments related to immigration consequences in a felony case but not in a misdemeanor case).
We hold that Appellant failed to meet his burden with respect to his actual innocence claim or his right-to-counsel claim. Therefore, we overrule Appellant's first and second issues on appeal.
On the record before us, we cannot conclude that the trial court abused its discretion when it denied Appellant's application for writ of habeas corpus. Accordingly, we affirm the order of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE November 5, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.