Angel Tavera Balderas v. The State of Texas--Appeal from Co Crim Ct at Law No 3 of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-06-00472-CR

Case Date: 05/03/2007

Plaintiff: Paul Davis

Defendant: The State of Texas--Appeal from 183rd District Court of Harris County

Preview:Angel Tavera Balderas v. The State of Texas--Appeal
from Co Crim Ct at Law No 3 of Harris County
Opinion issued May 3, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00472-CR
ANGEL TAVERA BALDERAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1350293
MEMORANDUM OPINION
We deny appellant's motion for rehearing. Tex. R. App. P. 49.3. We withdraw our January 11, 2007 opinion, substitute
this opinion in its place, and vacate our January 11, 2007 judgment.
Appellant, Angel Tavera Balderas, challenges the trial court's order denying his application for a writ of habeas corpus.
(1) In three issues, appellant contends that "the trial court erred in failing to conduct an evidentiary hearing" and that
the trial court erred in denying his application on the grounds that he was denied his right to an interpreter and his right
to appeal.
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We affirm the order of the trial court.
Factual and Procedural Background
On March 3, 1995, appellant pleaded guilty to the misdemeanor offense of theft, and the trial court assessed his
punishment at confinement for ten days in the Harris County Jail. (2) On December 1, 2005, appellant filed an
application for a writ of habeas corpus, asserting that he was denied his right to effective assistance of counsel, his
waiver of a jury trial was involuntary, his plea of guilty was involuntary, "especially in light of the trial court's failure
to admonish [him] as to the direct and collateral consequences that [he] could be subjected to deportation and
exclusion from the United States," and he was not advised of his rights to a court reporter, an interpreter, and an
appeal. Appellant requested an "evidentiary hearing" and attached a verification.
The State filed a response, asserting that appellant "did not make a reasonable showing that his attorney's conduct fell
below an acceptable standard causing him harm," appellant "signed a written waiver of his right to testify and present
witnesses and evidence," "it is presumed that the presiding judge advised [appellant] through his plea he was giving up
said rights," appellant "signed his plea admonishments," "it is presumed [appellant] was informed of his rights and that
he voluntarily gave them up when he entered his plea," and there was "absolutely no record that [appellant] was ever
forced to plea, or that he was not properly admonished." The State further asserted that appellant's application could be
resolved "without the need for an evidentiary hearing."
Appellant filed an affidavit and testified that he hired attorney Juan Contreras to represent him in the theft case. He
further testified:
[Contreras] told me that I would have to do 10 days in Jail and that my case would be finished and closed and that I
would have to plead guilty. He asked me to sign some documents that were in English and he was my interpreter.
At the time I plead guilty, . . . I was totally illiterate in the English language. . .                                         . I was totally dependent on my
attorney to know the law and explain it to me and any interpreter to explain to me any written documents in English or
any words that were spoken to me in the English language.
I signed some documents for attorney Contreras that were in English. There was no interpreter that explained those
documents to me. I did not have an interpreter, nor did I know that I was entitled to have an interpreter. Mr. Contreras
told me what the documents said since they were in the English language and he also interpreted for me in front of the
judge. . .                                                                                                                      . He never asked me what my immigration status was or whether I was a resident alien. He did not explain
that by pleading guilty and taking time in jail it was going to be a final conviction on my record that could never be
erased or its consequences. He did not explain to me about probation or . . . deferred adjudication probation or explain
the differences between the two and which would have less of a consequence for . . . immigration purposes.
At the time I did not know that it could be used as a basis to deport [me] from this country and lose all my right[s] to
naturalization, lose my Permanent Resident Alien Status and to exclude me from this country.
At the present, the United States Immigration and Naturalization Service is taking away my rights as a Resident Alien,
denying my right to naturalization and I am fighting deportation based on the fact that I have never been convicted of
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theft.
When I was in front of the judge, I do not remember my attorney telling me that the judge was warning me of the fact
that if I plead guilty to this offense that I could be deported, excluded or denied naturalization under federal law.
Appellant also testified that Contreras did not explain his right to a jury trial, to a court reporter, or to file a motion for
new trial or appeal. Appellant stated that he would not have pleaded guilty had he been aware of these rights and the
consequences of pleading guilty. Finally, appellant testified that he "did not plead guilty knowingly and voluntarily."
(3)
The trial court denied appellant's application.
Confinement We first address the State's argument that, because appellant has served the sentence assessed by the
court in the theft case, he is not confined as required for relief under Chapter 11 of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 11.01-.65 (Vernon 2005 & Supp. 2006).
A writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. Ex parte Davis, 748
S.W.2d 555, 557 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 11.04
(Vernon 2005)). To be entitled to habeas corpus relief, an applicant must establish that he was either "confined" or
"restrained" unlawfully at the time the application was filed. See Dahesh v. State, 51 S.W.3d 300, 302 (Tex. App.--
Houston [14th Dist.] 2000, pet. ref'd) (citing Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d
554, 558 (Tex. Crim. App. 1989)). The term "confinement" refers "not only to the actual, corporeal and forcible
detention of a person, but likewise to any coercive measures by threats, menaces or the fear of injury, whereby one
person exercises a control over the person of another, and detains him within certain limits." Tex. Code Crim. Proc.
Ann. art. 11.21 (Vernon 2005). The term "restraint" refers to "the kind of control which one person exercises over
another, not to confine him within certain limits, but to subject him to the general authority and power of the person
claiming such right." Id. art. 11.22 (Vernon 2005). The terms "confinement" and "restraint" encompass incarceration,
release on bail or bond, release on probation or parole, or any other restraint on personal liberty. See Rodriguez, 769
S.W.2d at 558; Davis, 748 S.W.2d at 557.
Based on the above statutes, this Court has concluded that "a void misdemeanor conviction constitutes 'confinement' or
'restraint' . . . and also constitutes the necessary collateral legal consequences that would invoke the writ powers of this
Court." Davis, 748 S.W.2d at 557; see also Ex parte Stamnitz, 768 S.W.2d 461, 462 (Tex. App.--Houston [1st Dist.]
1989, no pet.). In Davis, this Court held that an applicant who had already served a misdemeanor sentence and paid a
fine imposed by the trial court was nonetheless "confined" because he was denied entry into the military as a result of
his misdemeanor conviction. 748 S.W.2d at 557. Accordingly, to the extent that appellant has become the subject of
deportation proceedings based upon what he contends is a void misdemeanor conviction, we hold that appellant is not
precluded from seeking habeas corpus relief. We now turn to the merits of appellant's appeal.
Standard of Review
An applicant for a writ of habeas corpus bears the burden of proving his allegations by a preponderance of the
evidence. Ex Parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995). In reviewing the trial court's ruling, we view
the facts in the light most favorable to the trial court's ruling and we afford almost total deference to the court's
determination of historical facts that are supported by the record, especially when the fact findings are based on an
evaluation of credibility. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of
deference to the trial court's rulings on "application of law to fact questions" that involve an evaluation of credibility.
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Id. If resolution of those ultimate questions turns on an application of legal standards, we review those determinations
de novo. Id.
Hearing
In his first issue, appellant contends that "the trial court erred in failing to conduct an evidentiary hearing where there
were sworn, verified, and controverted material issues of fact both in the pleadings and the affidavits submitted by
appellant, the State, and former trial counsel." The State contends that the trial court held a hearing "by affidavits only"
and denied appellant's application because the trial court "did not believe appellant's affidavit." (4) The State further
contends that appellant did not object to the trial court's decision not to hear live testimony and that the Code of
Criminal Procedure does not require a live evidentiary hearing on the application.
The State's contentions are supported by the record. In its original order directing the State to respond to the
application, the trial court set a hearing on the merits of appellant's application on March 2, 2006. Then, on March 2,
2006, the trial court signed a "case reset form," stating that the "undersigned Defendant and Counsel acknowledge that
this case is reset" for a hearing on March 29, 2006. Appellant's attorney signed the reset form and, in the space for
appellant's signature, there is a notation stating "by submission affidavits." On March 30, 2006, the trial court signed
another "case reset form," resetting the case for a writ hearing on April 11, 2006. Again, appellant's attorney signed the
form, which noted that the parties had filed affidavits in regard to appellant's application. On April 11, 2006, the trial
court signed its order, reciting that it had "heard [appellant's] application for writ of habeas corpus," the parties
appeared for a hearing on the application, it had reviewed the pleadings, and it had heard the evidence and argument of
the parties. Thus, the record reflects that the trial court conducted a hearing on appellant's application by considering
the pleadings on file and the evidence submitted by the parties, including the affidavits, albeit without the aid of live
testimony. (5)
Article 11.09 of the Texas Code of Criminal Procedure, which specifically applies to persons seeking habeas relief who
are confined on misdemeanor charges, (6) does not require a trial court to conduct a live evidentiary hearing and afford
a party the opportunity to present live testimony on an application filed under the article. See Tex. Code Crim. Proc.
Ann. art. 11.09 (Vernon 2005) ("If a person is confined on a charge of misdemeanor, he may apply to the county judge
of the county in which the misdemeanor is charged to have been committed . . .                                                 .)." (7)
We overrule appellant's first issue.
Interpreter
In his second issue, appellant contends that the trial court erred in denying his application on the ground that he was
denied his right to an interpreter. "When a motion for appointment of an interpreter is filed by any party or on motion
of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and
speak the English language, an interpreter must be sworn to interpret for the person charged or the witness." Tex. Code
Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2006).
The Texas Court of Criminal Appeals has acknowledged that providing an interpreter to an accused who does not
understand English is required by the Confrontation Clause (8) and by Article I, section 10 of the Texas Constitution.
(9) Baltierra v. State, 586 S.W.2d 553, 556-59 (Tex. Crim. App. 1979). The court has more recently concluded that
"when a trial judge is aware that [a] defendant has a problem understanding the English language," his right to have an
interpreter is a right "which must be implemented by the system unless expressly waived." Garcia v. State, 149 S.W.3d
135, 144-45 (Tex. Crim. App. 2004). The court explained that "[t]he judge may become aware of the defendant's
language problem either by being informed of it by one or both parties or by noticing the problem sua sponte." Id. The
court held that because the record demonstrated that the trial court was aware of the defendant's language problem, the
trial court was required to ensure that the trial proceedings were translated. Id.; see also Ex parte Nanes, 558 S.W.2d
893, 894 (Tex. Crim. App. 1977) (granting post-conviction habeas relief to defendant who alleged he was denied his
constitutional rights "because he was not afforded an interpreter" based on stipulation by State that defendant did not
understand English and affidavit from interpreter who testified that he was not present during many phases of trial);
Miller v. State, 177 S.W.3d 1, 7 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (holding that once trial court became
aware of complainant's language problem, court had independent duty to secure interpreter).
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This case is distinguishable both procedurally and substantively. First, here, there is no reporter's record of the plea
hearing, and nothing in the record suggests that appellant complained of a failure of the trial court to appoint an
interpreter during the plea hearing. Furthermore, there is no evidence that the trial court was aware that appellant had
difficulty understanding English. In fact, appellant, in making his ineffective assistance of counsel argument in his
application, asserts that his counsel "fail[ed] to bring to the trial court's attention" his inability to speak English and his
need for an interpreter. Because there is no evidence that the trial court was aware of appellant's inability to speak
English, the trial court was not required to appoint an interpreter. See Garcia, 149 S.W.3d at 145; see also Leon v.
State, 25 S.W.3d 841, 843 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd) ("Unless the record otherwise demonstrates
the defendant's lack of understanding of the proceedings, a defendant who does not request an interpreter waives the
right to complain on appeal.").
Second, in this case, appellant pleaded guilty to the offense, and the trial court's judgment recites that appellant
"knowingly, intelligently, voluntarily, and expressly waived trial by jury, and in open court pleaded as indicated
above." "Absent any showing to the contrary, we assume regularity in the proceedings." Leon, 25 S.W.3d at 843 (citing
Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex. Crim. App. 1984)). Moreover, the evidence cited above supports the
trial court's rejection of appellant's affidavit testimony regarding the voluntariness of his plea. Thus, the trial court was
presented with evidence on which it could have found that appellant had been informed of his legal rights, including
his right to confront witnesses in a jury trial, and that he voluntarily and intelligently waived those rights. See Briones
v. State, 595 S.W.2d 546, 547-48 (Tex. Crim. App. 1980); Leon, 25 S.W.3d at 843-44. Accordingly, we hold that the
trial court did not err in denying appellant's application for a writ of habeas corpus on the ground that he was denied
his right to an interpreter.
Appellant also contends, in a single sentence in his second issue, that his trial counsel's failure to alert the trial court to
his need for an interpreter fell below an objective standard of reasonableness. To prevail on his claim of ineffective
assistance, appellant must show that (1) his counsel's representation fell below an objective standard of reasonableness
and (2) a reasonable probability exists that but for his counsel's unprofessional errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Vasquez v.
State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). A "reasonable probability" is one sufficient to undermine
confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). It is
appellant's burden to prove ineffective assistance, and in reviewing counsel's performance, we must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001). Allegations of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.
Here, the trial court was presented with conflicting evidence regarding appellant's need for an interpreter, in addition to
his counsel, who had been appointed to assist him in the plea hearing. Appellant himself testified that Contreras served
as his interpreter during the plea hearing. Thus, the trial court acted within its discretion in rejecting appellant's
testimony and concluding that there was no need to appoint an interpreter and that appellant voluntarily waived a jury
trial and entered his guilty plea. Accordingly, we hold that appellant has failed to demonstrate that counsel's
performance fell below an objective standard of reasonableness.
We overrule appellant's second issue.
Right to Appeal
In his third issue, appellant contends that the trial court erred in denying his application on the ground that he was
denied his right to appeal. Appellant makes no separate argument concerning this issue, and waives this issue for our
review. See Tex. R. App. P. 38.1(h). (10)
We overrule appellant's third issue.
Conclusion
We affirm the order of the trial court.
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Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
1. See Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005).
2. The State of Texas v. Angel Tavera Balderas, no. 9445798, in County Criminal Court at Law Number Three, Harris
County, Texas.
3. We note that Contreras filed a document entitled "Affidavit of Counsel in Response to Writ." However, the
document is not notarized, does not contain a jurat, and is substantively defective, rendering it incompetent. See,e.g.,
Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex. App.--Houston [14th
Dist.] 1997, writ denied)); see also Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7, 15 n.12 (Tex. App.--
Houston [14th Dist.] 2005, pet. filed). Accordingly, we will not consider Contreras's affidavit for any purpose.
4. The record contains a copy of the trial court's "final docket" with the notation "relief sought under writ denied.
Veracity of def[andant's] affidavit suspect."
5. We recognize that the Court of Criminal Appeals has held, in the context of an application for a writ of habeas
corpus that seeks relief from a felony judgment, that if the applicant has alleged facts that, if true, might entitle him to
relief, a court should remand the matter to the trial court for resolution of the factual issues presented in accordance
with article 11.07 of the Code of Criminal Procedure. See Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App.
1999) (citing Tex. Code Crim. Proc. Ann. art. 11.07(3)(d) (Vernon 2005)). Here, the trial court conducted a hearing,
and nothing in the record suggests that appellant objected to the trial court's decision not to receive live testimony at
the hearing. Rather, the record indicates that appellant consented to the hearing by affidavits. Additionally, appellant in
this case filed his application for a writ of habeas corpus under article 11.09, not article 11.07. Article 11.07 sets forth
specific procedures for the application seeking relief from a felony judgment.
6. Article 11.10 provides, "When motion has been made to a judge under the circumstances set forth in the two
preceding Articles, he shall appoint a time when he will examine the cause of the applicant, . . .                             . He shall also specify
some place in the county where he will hear the motion." Tex. Code Crim. Proc. Ann. art. 11.10 (Vernon 2005).
7. We note that the legislature has specifically addressed the availability of a hearing and other procedural
requirements on applications filed on other types of charges. See Tex. Code Crim. Proc. Ann. art. 11.07 (establishing
procedures for applicant seeking relief from felony judgment that imposes penalty other than death); Id. art. 11.072
(Vernon 2005) (establishing procedures for applicant seeking relief from felony or misdemeanor judgment ordering
community supervision). In Ex Parte Cummins, the court considered an application filed under article 11.072, which
states that in granting or denying an application, a court "may order affidavits, depositions, interrogatories or a hearing,
and may rely on the court's personal recollection." 169 S.W.3d 752, 755-56 (Tex. App.--Fort Worth 2005, no pet.)
(citing Tex. Code Crim. Proc. Ann. art. 11.072). The court found nothing in article 11.072 requiring the trial court to
conduct a hearing before rendering its decision, and held that the trial court was not prohibited from considering
evidence filed with the application or response without conducting a hearing. Id. at 757. Although there is no article
similar to article 11.072 addressing the availability of a hearing or other procedural requirements for the type of
application at issue in this case, nothing in the Code requires a trial court to afford an applicant under section 11.09 to
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present, in addition to affidavits and other evidence, live testimony at an evidentiary hearing.
8. U.S. Const. amend V.
9. Tex. Const. art. I, 10.
10. In his brief, appellant states that he "adopts by reference each and every, all and singular, the arguments and
authorities contained in his 'Application for Writ of Habeas Corpus' as filed in the court below and are made reference
herein the same as if copied in full and set forth at length." To the extent appellant attempts to raise issues with this
statement not separately briefed in his appellate brief, he has waived those issues for our review. See Tex. R. App. P.
38.1(h).
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