Ex Parte Alejandro Chavez Ramirez ( 2014 )

WITHDRAWN 04/23/15
REPLACED 04/23/15
IN THE
TENTH COURT OF APPEALS
No. 10-14-00247-CR
EX PARTE ALEJANDRO CHAVEZ RAMIREZ
From the 18th District Court
Johnson County, Texas
Trial Court No. 47308-A
MEMORANDUM OPINION
Alejandro Chavez-Ramirez pled guilty to possession of a controlled substance
and was sentenced to two years in a state jail facility. See TEX. HEALTH & SAFETY CODE
ANN. § 481.115(b) (West 2010). His sentence was suspended and Ramirez was placed
on community supervision for 5 years. Ramirez was later detained by the Federal
Department of Immigration and Customs Enforcement, and filed an application for writ
of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure.
TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2005). After initially setting the
application for a hearing, the trial court reviewed the application, determined Ramirez
to be entitled to no relief, and denied Ramirez’s application as frivolous. Because the
trial court did not abuse its discretion in denying the application without a hearing, the
trial court’s judgment is affirmed.
Ramirez’s sole issue is that the trial court erred in summarily denying Ramirez’s
writ petition as frivolous. In the body of his argument, however, he complains about,
and supports his argument with case-law regarding, the trial court’s decision to
determine the writ application without a hearing.
We review a trial court's decision to grant or deny an evidentiary hearing on an
article 11.072 habeas corpus application under an abuse of discretion standard. See Ex
parte Gonzalez, 323 S.W.3d 557, 558 (Tex. App.—Waco 2010, pet. ref'd); Ex parte
Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). See also Ex parte
Godinez, No. 10-13-00063-CR, 2014 Tex. App. LEXIS 256, 2-3 (Tex. App.—Waco Jan. 9,
2014, pet. ref’d) (not designated for publication). Nothing in article 11.072 requires the
trial court to conduct a hearing before rendering its decision on the habeas-corpus relief
sought. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(b) (West 2005) (“In making its
determination, the court may order affidavits, depositions, interrogatories[,] or a
hearing, and may rely on the court's personal recollection.” (emphasis added)); Ex parte
Gonzalez, 323 S.W.3d at 558.
In his Application for Writ of Habeas Corpus, Ramirez raised two complaints: 1)
that his plea was involuntary because he did not understand (a) his right to plead not
guilty and have a jury trial; (b) there were possible defenses; and (c) there were possible
Ex parte Ramirez Page 2
“serious consequences;” and 2) that counsel provided ineffective assistance by failing to
properly admonish Ramirez that his plea would “certainly or almost certainly result in
deportation.” No affidavits, statutory or case authority, or other evidence was included
in or attached to the writ application. More importantly, the writ application was not
sworn to, as required by the Texas Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. Art. 11.14 (West 2005).
It is the habeas applicant's obligation to provide a sufficient record that supports
his factual allegations with proof by a preponderance of the evidence. Ex parte Chandler,
182 S.W.3d 350, 353 n. 2 (Tex. Crim. App. 2005). Further, if an applicant fails to follow
the proper procedures outlined in Chapter 11 of the Code of Criminal Procedure, he
risks failing to invoke the trial court's habeas corpus jurisdiction. State v. Guerrero, 400
S.W.3d 576, 584 (Tex. Crim. App. 2013) (citing Jordan v. State, 54 S.W.3d 783, 787 (Tex.
Crim. App. 2001) (“if a probationer wishes to invoke the trial court's writ of habeas
corpus jurisdiction, he must follow the proper procedures outlined in Article 11…. In
the present case, appellant did not follow the procedures outlined in Article 11, and
hence, the Court of Appeals did not err in failing to address his claim.”)).
Ramirez did not follow the procedures outlined in Article 11. Thus, we cannot
say that the trial court abused its discretion in ruling on Ramirez’s application without a
hearing.
Ex parte Ramirez Page 3
Accordingly, Ramirez’s sole issue is overruled, and the trial court’s judgment is
affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 31, 2014
Do not publish
[CR25]
Ex parte Ramirez Page 4