Ex Parte Jose Antonio Garcia ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00067-CR

Ex parte Jose Antonio Garcia

From the 18th District Court

Somervell County, Texas

Trial Court No. 18-00555

MEMORANDUM  Opinion

          Jose Antonio Garcia pled guilty to the offense of possession of marijuana and was sentenced to two years in a state jail facility.  The sentence was probated and Garcia was placed on community supervision.  Over a year later, Garcia filed an application for writ of habeas corpus under article 11.072 of the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005).  The trial court denied the application and Garcia appeals. Because the trial court did err not in denying Garcia’s application, we affirm.

          In one issue, Garcia contends that the trial court erred in refusing to hold a hearing on his application because the facts alleged, if true, would entitle him to relief.  Contrary to Garcia’s contentions, nothing in article 11.072 requires the trial court to hold a hearing in making its determination on the application.  Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.); Tex. Code Crim. Proc. Ann. art. 11.072, Sec. 6(b) (Vernon 2005).  Further, the trial court did not refuse to hold a hearing.  Garcia did not request a hearing on his application.  Because the trial court is not required to have a hearing and was not asked to conduct a hearing, it did not err in not conducting a hearing.

          Within the body of his argument, Garcia also complains that his claim was not frivolous and the case should be remanded so the trial court can determine the merits of his claim.  The burden of proof in a writ of habeas corpus is on the applicant to prove his factual allegations by a preponderance of the evidence.  Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995); Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986); Ex parte Cummins, 169 S.W.3d at 757.  But Garcia seems to argue that because he is claiming he is actually innocent based on newly discovered evidence,[1] the review of his writ application is governed by Ex parte Elizondo.  Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).  Pursuant to Elizondo, when a claim of actual innocence is made in a habeas petition without an additional claim of constitutional error at trial, the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.  Id. at 209.

          Nevertheless Garcia did not uphold his burden of proof by a preponderance of the evidence or, assuming without deciding Elizondo applies to writs filed under article 11.072, by clear and convincing evidence.  Garcia offered no evidence in support of the assertion in his application that newly discovered evidence would establish his actual innocence.  The application references an affidavit, but no affidavit is attached to the application; nor is one in the record at all. 

          Because Garcia did not prove he was entitled to relief, either by a preponderance of the evidence or by clear and convincing evidence, the trial court did not err.

          Garcia’s sole issue is overruled, and the trial court’s order denying habeas corpus relief is affirmed.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed October 4, 2006

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[CR25]

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[1] Based upon the statements in Garcia’s brief, if the trial court determined Garcia’s allegation of “newly discovered evidence” was, in fact, not newly discovered, the trial court did not err.  See Ex parte Briggs, 187 S.W.3d 458, 465 (Tex. Crim. App. 2005).

an style="font-size: 12pt">      We abate this appeal confident that an appropriate record will be made. See Ex parte Davis, 818 S.W.2d at 67; Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987). The record, including the court's findings and recommendations, is due with the clerk of this Court within thirty days after the date of this order.

                                                                                     PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal abated

Order issued and filed January 23, 2002

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