Opinion
No. 07-15-00380-CR
01-27-2016
IN RE RENE PESINA
On Appeal from the 72nd District Court Crosby County, Texas
Trial Court No. 2420-A, Honorable Ruben Gonzales Reyes, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Rene Pesina argues that the trial court erred in denying him a hearing upon his petition for habeas corpus filed under art. 11.072 of the Texas Code of Criminal Procedure. Through that petition he attempted to set aside an order placing him on community supervision. The grounds alleged encompassed newly discovered evidence showing him to be actually innocent, his trial attorney rendering him ineffective assistance, and the State's withholding of exculpatory evidence. The trial court denied the petition without convening an evidentiary hearing. Before us, Pesina contends that the trial court should have granted such a hearing on his claim of actual innocence, and in conducting that hearing, he should have been entitled to present evidence establishing the other grounds mentioned. So too does he posit that due process mandated a hearing to enable him to subpoena and examine the purported victim of his crime and garner testimony illustrating that she recanted her accusation of his involvement in it. We affirm.
Pesina both pled guilty and confessed to committing the crime. His plea and confession resulted in the trial court deferring the adjudication of his guilt and placing him on community supervision in 1996.
Authority
Per article 11.072, one may apply "for a writ of habeas corpus in a felony or misdemeanor case [to] . . . seek[] relief from an order or a judgment of conviction ordering community supervision." TEX. CODE CRIM. PROC. ANN. art. 11.072, Sec. 1 (West 2015). Once the State files its answer to the application, the trial court has 60 days to "enter a written order granting or denying the relief sought. . . ." Id. art. 11.072, Sec. 6(a). Furthermore, in making its decision, the trial court "may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection." Id. art. 11.072, Sec. 6 (b).
Given the language of art. 11.072, Sec. 6(b), an applicant is not entitled to a hearing as a matter of course, according to the general weight of authority. See Ex parte Johnson, No. 06-14-00214-CR, 2015 Tex. App. LEXIS 2716, at *4 (Tex. App.—Texarkana March 24, 2015, no pet.) (mem. op., not designated for publication) (stating that "[a]lthough Article 11.072 permits the trial court to conduct a hearing before rendering its decision on the habeas corpus relief sought, it makes no requirement that such a hearing be held . . . this Article leaves the decision of whether to conduct a hearing to the trial court's discretion"); Ex Parte Motta, No. 13-13-00667, 2014 Tex. App. LEXIS 12505, at *6-7 (Tex. App.—Corpus Christi November 20, 2014, no pet.) (mem. op., not designated for publication) (stating that "[w]hile section 6(b) of 11.072 states a trial court may order, among other things, a hearing, it does not require the court to do so."); Ex parte Godinez, No. 10-13-00063-CR, 2014 Tex. App. LEXIS 256, at *4-5 (Tex. App.—Waco January 9, 2014, pet. ref'd) (mem. op., not designated for publication) (stating that "nothing in article 11.072 requires the trial court to conduct a hearing before rendering its decision on the habeas-corpus relief sought"); Ex parte Franklin, 310 S.W.3d 918, 922-23 (Tex. App.—Beaumont 2010, no pet.) (recognizing that "the trial court is not required to hold oral hearings in order to determine whether to deny an 11.072 application for a writ of habeas corpus application alleging ineffective assistance of counsel"). And, though the court in Ex parte Franklin suggested that rule may differ when actual innocence is involved, Ex parte Franklin, 310 S.W.3d at 922-23, it remains clear that the application must contain or "establish[] affirmative evidence of his innocence." Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006) (stating that "before a habeas applicant is entitled to a hearing, the applicant must make a claim that, if true, establishes affirmative evidence of his innocence").
Indeed, the need for the application to contain affirmative evidence of innocence before a hearing is required may well be the reason why the Beaumont Court of Appeals concluded that the trial court erred in refusing to conduct an evidentiary hearing there. Franklin had appended to his application an affidavit from the victim wherein she expressly recanted her accusation against him. Ex parte Franklin, 310 S.W.3d 918, 920 (Tex. App.—Beaumont 2010, no pet.). So, the test mentioned in Brown was satisfied. Nevertheless, we question Pesina's interpretation of Franklin as mandating a hearing when Brown is satisfied. It may be that the Beaumont court remanded the cause for a hearing. Yet, in arriving at the outcome it first not only recognized that there may exist circumstances under which a hearing would be impractical, id. at 922, citing, Manzi v. State, 88 S.W.3d 240, 255 (Tex. Crim. App. 2002) (Cochran, concurring), but also concluded that "if the trial court explains why the hearing is impractical, the trial court can then proceed to make its determination based on its assessment of all the affidavits together with the inculpatory evidence from Franklin's trials." Id. at 923 (emphasis added). This language falls short of illustrating that a hearing is required in each situation where the application contains affirmative evidence of innocence. See Ex parte Gonzalez, 323 S.W.3d 557, 559 (Tex. App.—Waco 2010, pet. ref'd) (stating that "it does not appear that [the Court of Criminal Appeals] actually subscribes to the principle that a habeas applicant is automatically entitled to a hearing if he produces affirmative evidence of innocence" and concluding that an actual hearing was not required there because the trial judge that presided over the applicant's original trial and the one that heard the application for habeas relief were one and the same).
Application of Law
Here, Pesina filed a verified application under article 11.072 and included therein a claim of actual innocence. The latter arose from the victim's purported recantation. In Pesina's view, the recantation constituted new evidence entitling him to relief. Yet, the actual recantation was not included in the application by way of affidavit or otherwise. This alone distinguishes our circumstances from those in In re Franklin. Simply put, the application at bar did not contain or "establish[] affirmative evidence of his innocence." So, assuming arguendo that a hearing is required when such evidence accompanies the application, the trial court was under no obligation to convene one here.
Additionally, the void to which we allude was not filled by Pesina's effort to attach a copy of a purported text to his motion for reconsideration. Admittedly, the text contained the statement that "what I can recall is that he didn't do anything to me and I wrote that in the statement too many years ago. . . ." (Emphasis added). Yet, Pesina did not attempt to establish the authenticity of the text. Missing is the identity of those involved in the textual exchange. Missing is the date on which the text was sent. And, most importantly, the text fails to identity who "he" is. The latter omission is consequential since at least two males were present when the crime at issue occurred, and whether the person who wrote the text was referring to Pesina or the other male cannot be determined from the context of the writing. Due to these deficiencies, the supposed information is not new evidence affirmatively establishing Pesina's innocence.
It may be, as Pesina suggests, that the victim was a party to the exchange and was reluctant to execute an affidavit exculpating Pesina. Nonetheless, the record does not indicate that the other person engaged in the texting escapade lacked the ability or willingness to provide the missing authenticity. --------
As for the argument that due process demanded a hearing so that Pesina could garner the evidence needed to prove his claim, we find the answer in the language of art. 11.072, Sec. 6(b). The latter provided the trial court with various tools to utilize in resolving the claim. It could have "ordered" affidavits or depositions or interrogatories or a hearing. TEX. CODE CRIM. PROC. ANN. art. 11.072, Sec. 6(b) (West 2015). A hearing was not the sole means through which critical evidence could have been gathered. Yet, the record fails to indicate that Pesina requested the trial court to order anyone to execute an affidavit, or submit to a deposition, or answer interrogatories. More importantly, Pesina made no effort to explain why those avenues of discovery were insufficient to secure the evidence he sought or satisfy the purported demands of due process. In short, he did not illustrate that he was denied due process simply because the trial court refused to hold an evidentiary hearing wherein he could conduct discovery.
We overrule appellant's issues and affirm the trial court's "Order Denying Writ of Habeas Corpus."
Brian Quinn
Chief Justice Do not publish.