Ex Parte Armando Ramos ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00203-CR
EX PARTE Armando RAMOS
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR6442-W1
Honorable Velia J. Meza, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: November 30, 2022
AFFIRMED
Appellant Armando Ramos unsuccessfully sought post-conviction habeas relief from a
conviction of one count of driving while intoxicated, a Class B misdemeanor. TEX. PENAL CODE
ANN. § 49.04(b); TEX. CODE CRIM. PROC. ANN. art. 11.09. In one issue, Ramos contends that the
habeas court abused its discretion because the underlying conviction violates the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution. We affirm.
I. BACKGROUND
On April 4, 1990, a state district court sitting in Cameron County, Texas convicted Ramos
on one felony count of aggravated sexual assault of a child. Ramos served part of his sentence for
that conviction by confinement, but on September 26, 2012, he was paroled.
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On April 26, 2017, Ramos allegedly committed an intoxication assault in Bexar County,
Texas. TEX. PENAL CODE ANN. § 49.07(a)(1). The allegations underlying the alleged intoxication
assault prompted Ramos’s parole officer to initiate a parole revocation proceeding. On December
7, 2017, Ramos’s parole was revoked, and he was remanded back to confinement. Approximately
six months later, a Bexar County grand jury indicted Ramos on one count of intoxication assault.
On September 20, 2019, Ramos entered into a plea bargain agreement with the State. Under the
agreement, Ramos pleaded guilty to the lesser offense of driving while intoxicated, a Class B
misdemeanor, and the State recommended a sentence of one-hundred-eighty days’ confinement in
jail, which he had already served. The trial court signed a judgment of conviction and sentence in
accordance with the terms of the plea bargain (hereinafter “the DWI judgment”). Ramos attempted
to appeal from the DWI judgment, but we dismissed his appeal because the trial court had not
certified his right to appeal under Texas Rule of Appellate Procedure 25.2. See Ramos v. State,
No. 04-19-00709-CR, 2020 WL 354777, at *1 (Tex. App.—San Antonio Jan. 22, 2020, no pet.)
(per curiam) (mem. op., not designated for publication).
After we issued our opinion, Ramos applied to the Texas Court of Criminal Appeals for
habeas relief from the DWI judgment under article 11.07 of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 1 (“This article establishes the procedures for an
application for writ of habeas corpus in which the applicant seeks relief from a felony judgment
imposing a penalty other than death.”) (emphasis added). The court of criminal appeals dismissed
Ramos’s habeas application.
Thereafter, Ramos returned to the court that signed the DWI judgment, and he sought
habeas relief from it. In the habeas court, Ramos contended that the sentence imposed by the DWI
judgment and the revocation of his parole constituted a double jeopardy violation. The habeas
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court considered Ramos’s request for relief under article 11.09 of the Texas Code of Criminal
Procedure, and it denied the relief Ramos sought. Ramos now appeals the habeas judge’s ruling.
II. DISCUSSION
A. Jurisdiction
In Ex parte Rurt, 499 S.W.2d 109, 110 (Tex. Crim. App. 1973), a habeas applicant
challenged an initial misdemeanor driving while intoxicated conviction that was used to enhance
two subsequent driving while intoxicated charges into felonies. The court observed that it “must
determine whether the question raised by this petition is moot, by reason of the fact that petitioner
has been released from confinement.” Id. The Texas Court of Criminal Appeals then held that
the habeas application was not moot because “the imposition of heavier penalties in subsequent
convictions” was a collateral legal consequence. Id.Though it did not mention Rurt, the court reaffirmed its collateral legal consequences rule
in Ex parte Schmidt, 109 S.W.3d 480, 482 (Tex. Crim. App. 2003), an opinion that the dissent
cites. In Schmidt, the habeas applicant challenged two prior driving while intoxicated convictions,
arguing that he was “under continuing restraint for jurisdictional purposes because the State has
sought enhanced punishment in a state-jail felony prosecution based on those convictions.” Id. at
481. As the dissent would do here, the Fourteenth Court of Appeals dismissed the habeas
application for want of jurisdiction. Id. The Texas Court of Criminal Appeals recited the lower
court’s holding as:
A plain reading of article 11.09 suggests that one must be “confined on a charge of
misdemeanor” before an application for habeas corpus relief may be made. Thus,
just as with 11.07, an application for habeas corpus relief will not lie under article
11.09 unless the applicant is “confined” pursuant to a commitment for a
misdemeanor conviction. Ex parte Oyedo, 939 S.W.2d 785, 786 (Tex. App.—
Houston [14th Dist.] 1997, pet. ref’d).
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Ex parte Schmidt, 109 S.W.3d at 482 (footnote omitted). The Texas Court of Criminal Appeals
went on to “hold that the Fourteenth Court of Appeals’ interpretation of Article 11.09 in this
appellant’s cases, and in Ex parte Oyedo, 939 S.W.2d 785 (Tex. App.—Houston [14th Dist.] 1997,
pet. ref’d), is incorrect.” Ex parte Schmidt, 109 S.W.3d at 483–84.
At least one of our sister courts has recognized and applied Schmidt in a case where a
habeas applicant challenged a single prior conviction for driving while intoxicated that was being
used to enhance a subsequent driving while intoxicated charge. See Ex parte Reyna, 435 S.W.3d
276, 278 (Tex. App.—Waco 2014, no pet.) (recognizing that the court of criminal appeals “has
held that a county court has jurisdiction to entertain a request for habeas relief like [the applicant’s]
when the applicant is not currently confined.”) (citing Schmidt, 109 S.W.3d at 481; Ex parte Ali
368 S.W.3d 827, 831–32 (Tex. App.—Austin 2012, pet. ref’d) (discussing collateral legal
consequences resulting from prior conviction); Ex parte Rodriguez, No. 14–10–00529–CR, 2011
WL 61858, at *2 (Tex. App.—Houston [14th Dist.] Jan. 6, 2011, no pet.) (mem. op., not designated
for publication) (“Collateral consequences related to a conviction, such as the use of the conviction
to enhance punishment in other cases, may also constitute confinement.”)); see also Tatum v. State,
846 S.W.2d 324, 327 (Tex. Crim. App. 1993) (“A judgment of conviction for a misdemeanor
offense may have detrimental collateral consequences whether or not probation is completed
without a hitch or jail time is actually served. If a misdemeanor judgment is void, and its existence
may have detrimental collateral consequences in some future proceeding, it may be collaterally
attacked, whether or not a term of probation was successfully served out.”) (emphasis added).
The dissent would hold that “[b]ecause Ramos has failed to carry his burden of showing
how he is confined, restrained, or subject to collateral legal consequences, the trial court did not
have jurisdiction to consider his habeas application.” Ex parte Ramos, No. 04-21-00203-CR, slip
op. at 3 (Tex. App.—San Antonio Nov. 30, 2022, no pet. h.) (dissenting mem. op., not designated
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for publication). The State has not raised any jurisdictional concerns, and we do not share the
dissent’s implicit determination that the DWI judgment does not subject Ramos to collateral legal
consequences. Under Rurt, Schmidt, and their progeny, Ramos’s habeas application is not
jurisdictionally infirm. Therefore, we find that the habeas court had jurisdiction to entertain
Ramos’s application for habeas relief.
B. Double Jeopardy
The merits of Ramos’s appeal are reviewed under a well-recognized standard of review.
An appellate court reviewing a habeas judge’s ruling in an article 11.09 application for writ of
habeas corpus must view the evidence in the record in the light most favorable to the judge’s ruling
and must uphold that ruling absent an abuse of discretion. Diamond v. State, 613 S.W.3d 536, 544
(Tex. Crim. App. 2020). An appellate court affords almost total deference to a habeas court’s
factual findings when they are supported by the record, especially when those findings are based
on credibility and demeanor. Id. This degree of deference also applies to any implied findings
and conclusions supported by the record. Id. However, if the resolution of the ultimate question
turns only on the application of legal standards, the appellate court reviews those determinations
de novo. Id. The reviewing court will uphold the habeas court’s ruling if it is correct under any
theory of applicable law. Id. at 544–45.
Ramos’s sole issue on appeal is that the habeas court erred in denying him relief because
the sentence imposed in the DWI judgment and the revocation of his parole constitute two
punishments for the same conduct, in violation of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution. 1 The State contends that Ramos’s double jeopardy
1
We note that Ramos has submitted multiple “briefs” to this court. However, Ramos is represented by counsel, and
a defendant in a criminal matter, represented by counsel, is not entitled to a hybrid representation. See Ex parte
Bohannan, 350 S.W.3d 116, 116 n.1 (Tex. Crim. App. 2011) (stating because habeas applicant was represented by
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claim is meritless, and it references our opinion in Ex parte Peralta, 87 S.W.3d 642, 646 (Tex.
App.—San Antonio 2002, no pet.) to support its position. We agree with the State.
In Peralta, a parolee was charged with misdemeanor assault, which caused a parole
revocation proceeding to be initiated. Id. at 644. The hearing officer who administered the parole
revocation proceeding found, among other things, that the complainant in the assault case refused
to testify and concluded that there was insufficient evidence to establish that the parolee violated
a condition of his parole by allegedly engaging in the assault. Id. at 644–45. The parolee then
sought pre-trial habeas relief from the pending assault charge on the grounds that prosecution was
barred by collateral estoppel and double jeopardy. Id. at 645–48. In analyzing the collateral
estoppel issue, we wrote:
Generally, under federal law, a parole revocation hearing is not a stage of criminal
prosecution. The Fifth Circuit has held that double jeopardy does not apply to
parole and probation revocation proceedings because such proceedings are not
designed to punish a criminal for the violation of a criminal law, but to determine
whether a parolee or probationer has violated the conditions of his parole and
probation. With these principles in mind, the Fifth Circuit specifically held that
collateral estoppel did not preclude the State of Texas from prosecuting a defendant
for involuntary manslaughter where the evidence to support the defendant’s bond
revocation was found to be insufficient. The Fifth Circuit reasoned that bond
revocation proceedings are not designed to obtain a conviction for an offense. All
Texas courts of appeals which have addressed the issue before this court have held
that collateral estoppel does not bar a subsequent criminal prosecution for an
offense that was the basis of a parole revocation.
Id. at 646 (citations omitted). Ultimately, we overruled the applicant’s double jeopardy issue for
the same reasons why we overruled his collateral estoppel issue. Id. at 648; see also Trevino v.
State, No. 03-96-00607-CR, 1997 WL 805125, at *1 (Tex. App.—Austin Jan. 8, 1997, pet. ref’d)
(not designated for publication) (“It has long been held by Texas courts and other courts that it is
not unconstitutional for a defendant to be tried and convicted of a criminal offense when the same
counsel and not entitled to hybrid representation, court would disregard and take no action on the “numerous”
submissions he filed pro se). Accordingly, we will address only the arguments raised by Ramos’s counsel.
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conduct has been used to administratively impose disciplinary measures or to revoke probation or
parole.”).
In this case, unlike in Peralta, Ramos’s parole was revoked. However, this distinction
should not preclude us from applying the rule that a parole revocation hearing is not a stage of
criminal prosecution. See Peralta, 87 S.W.3d at 646. Accordingly, Ramos has not been subjected
to multiple sentences for the same conduct and his double jeopardy claim fails. Therefore, we
overrule Ramos’s sole issue.
III. CONCLUSION
We affirm the habeas court’s order denying Ramos’s application for habeas relief.
Rebeca C. Martinez, Chief Justice
Do Not Publish
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