Ex Parte Jose Jesus Gonzalez ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00029-CR

Ex parte Jose Jesus Gonzalez

From the 40th District Court

Ellis County, Texas

Trial Court No. 23223CR

Opinion

            Jose Jesus Gonzalez filed a habeas application under article 11.072 of the Code of Criminal Procedure seeking relief from a deferred adjudication order for indecency with a child.  The court denied Gonzalez’s application without a hearing.  Gonzalez contends in his sole issue that the court erred by resolving controverted facts against him without first conducting an evidentiary hearing.  We will affirm.

Article 11.072

            Article 11.072, section 6 provides in pertinent part:

(a) Not later than the 60th day after the day on which the state’s answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application.

(b) In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court’s personal recollection.

(c) If a hearing is ordered, the hearing may not be held before the eighth day after the day on which the applicant and the state are provided notice of the hearing.

Tex. Code Crim. Proc. Ann. art. 11.072, § 6(a)-(c) (Vernon 2005).[1]

            Based on the language of subsection (b) alone, the Fort Worth Court of Appeals has concluded that no evidentiary hearing is required under article 11.072.  Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.).  We agree with that conclusion, but we find further support for it in cases construing a similar provision in article 11.07.[2]

            Article 11.07, section 3(d) provides in pertinent part, “To resolve [controverted fact] issues the court may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection.”  Tex. Code Crim. Proc. Ann. art. 11.07, § 3(d) (Vernon Supp. 2009).

            This language in article 11.07, section 3(d) has long been construed to mean that a trial court is not required to conduct an evidentiary hearing to resolve controverted material fact issues in a postconviction habeas proceeding.  See Ex parte Davila, 530 S.W.2d 543, 545 (Tex. Crim. App. 1975) (op. on reh’g); In re Banister, No. 07-09-00117-CV, 2009 WL 1160966, at *1 (Tex. App.—Amarillo Apr. 30, 2009, orig. proceeding) (mem. op.); In re J.W.A., No. 03-03-00464-CV, 2005 WL 2574024, at *4 (Tex. App.—Austin Oct. 13, 2005, no pet.) (mem. op.).

            “[W]hen a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation.”  State v. Medrano, 67 S.W.3d 897, 902 (Tex. Crim. App. 2002).

Herrera Claims

            The Beaumont Court of Appeals has recently held that an evidentiary hearing is required under article 11.072 if the habeas applicant makes a Herrera claim[3] supported by newly discovered, affirmative evidence of innocence and the trial judge before whom the habeas application is pending did not preside over the applicant’s trial.[4] See Ex parte Franklin, 310 S.W.3d 918, 921-23 (Tex. App.—Beaumont 2010, no pet.).  The Beaumont Court cited Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006), and Ex parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002),[5] as compelling this conclusion.  In our view, however, the cited authorities do not require an evidentiary hearing if the habeas judge is the same judge who presided over the applicant’s trial, and we do not address whether an evidentiary hearing is required if a different judge is called upon to decide the habeas application.

            In Franklin, the Court of Criminal Appeals addressed the quality of newly discovered evidence required to even raise a controverted fact issue on a Herrera claim.

A conviction that results from a constitutionally error-free trial is entitled to the greatest respect. Accordingly, we hold that when an applicant asserts a Herrera-type claim based on newly discovered evidence, the evidence presented must constitute affirmative evidence of the applicant’s innocence.  Once the applicant provides such evidence, it is then appropriate to proceed with a determination of whether the applicant can prove by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence.

Franklin, 72 S.W.3d at 677-78 (emphasis added) (citation and footnote omitted).

            Later, in Brown, the Court of Criminal Appeals cited this paragraph in a discussion regarding an applicant’s “entitlement” to a hearing on a Herrera claim.

In Ex parte Franklin, this Court held 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.  Then, at the hearing, the trial judge assesses the witnesses’ credibility, examines the “newly discovered evidence,” and determines whether that “new” evidence, when balanced against the “old” inculpatory evidence, unquestionably establishes the applicant’s innocence.  The habeas judge then sets out findings of fact and conclusions of law, and he makes a recommendation to this Court.  Upon submission to this Court, we review the factual findings with deference because the habeas judge is in the best position to make credibility judgments.  Even though deference is the prescribed standard, we are not bound by the habeas judge’s findings, conclusions, or recommendations when they are not supported by the record.

Brown, 205 S.W.3d at 546 (emphasis added) (footnotes omitted).

            It is not this Court’s place to second guess the Court of Criminal Appeals.  Nevertheless, it does not appear that that court actually subscribes to the principle that a habeas applicant is automatically entitled to a hearing if he produces affirmative evidence of innocence.  For example, on May 19, 2010, the Court addressed a habeas application in which the applicant alleged ineffective-assistance claims and a claim “that he is actually innocent because the complainant recanted.”  See Ex parte Culpepper, No. WR-66,569-03, slip op. at 1 (Tex. Crim. App. May 19, 2010) (per curiam) (not designated for publication).  The Court remanded the matter to the trial court for further proceedings, but did not require the trial court to conduct a hearing.

            Applicant has alleged facts that, if true, might entitle him to relief.  In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact.  The trial court shall order Applicant’s trial counsel to respond to Applicant’s claim of ineffective assistance of counsel.  The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

            If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If he is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing.

            The trial court shall first make findings of fact as to: (1) whether the complainant recanted and, if so, whether her recantation is credible; (2) whether the State made a plea offer of ten years and, if so, whether that offer was timely conveyed to Applicant; and (3) whether counsel investigated the complainant’s allegations.  The trial court shall then make conclusions of law as to whether counsel was deficient and, if so, whether his deficient performance prejudiced Applicant.  Finally, the trial court shall make conclusions of law as to whether Applicant has established that he is actually innocent.  The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claims for habeas corpus relief.

Id., slip op. at 1-2 (emphasis added) (citations omitted).

            Therefore, we hold that an evidentiary hearing is not required under article 11.072 for a Herrera claim supported by newly discovered, affirmative evidence of innocence if the trial judge before whom the habeas application is pending also presided over the applicant’s trial.

Conclusion

            As with article 11.07, the legislature invested trial courts with broad discretion with regard to the means by which controverted fact issues may be resolved in habeas proceedings under article 11.072.  We infer that the legislature approved of the manner in which the Court of Criminal Appeals and other courts have construed this discretion under article 11.07 when the legislature chose to employ similar language in article 11.072.  See Cummins, 169 S.W.3d at 757 (“because the language of articles 11.07 and 11.072 are very similar, we believe that the legislature intended for article 11.072 applications to be treated much like applications submitted under article 11.07”); see also Medrano, 67 S.W.3d at 902.  Therefore, we hold that no evidentiary hearing is required by article 11.072 to resolve controverted facts if the trial judge before whom the habeas application is pending also presided over the applicant’s trial.  See Cummins, 169 S.W.3d at 757; see also Davila, 530 S.W.2d at 545; Banister, 2009 WL 1160966, at *1; J.W.A., 2005 WL 2574024, at *4.

Here, the trial court considered Gonzalez’s application, the State’s answer, the court’s records, and the court’s personal recollection before making its findings of fact.  Nothing more is required.

We overrule Gonzalez’s sole issue and affirm the order denying his habeas application.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed August 11, 2010

Publish

[CR25]

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[1]               Article 11.072 provides “procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.”  Tex. Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005).

[2]               Article 11.07 provides procedures for a habeas application following a felony conviction in which the applicant received a prison sentence but not the death penalty.  See id. art. 11.07, § 1 (Vernon Supp. 2009); Ex parte Brown, 662 S.W.2d 3, 4 (Tex. Crim. App. 1983) (per curiam).

[3]               The Court of Criminal Appeals recognizes two types of “innocence” claims: (1) a Herrera claim, which is “a substantive claim in which applicant asserts his bare claim of innocence based solely on newly discovered evidence”; and (2) a Schlup claim, which “is a procedural claim in which applicant’s claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at trial.”  Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995); Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993)) (other citations omitted).  The recantation of a witness raises a Herrera claim.  See id. at 678 n.7.

[4]               The Beaumont Court expressly left open “the question of whether a habeas court is required to have a hearing when the habeas court has personal knowledge of the prior trial proceedings.”  Ex parte Franklin, 310 S.W.3d 918, 923 n.5 (Tex. App.—Beaumont 2010, no pet.).  The court distinguished the Fort Worth Court’s decision in Cummins because the applicant in Cummins raised an ineffective-assistance claim rather than a Herrera claim.  See id. at 922-23.

[5]               The Franklin case decided by the Court of Criminal Appeals arose from the conviction of Brian Edward Franklin for aggravated sexual assault of a child in Tarrant County, while the Franklin case decided by the Beaumont Court of Appeals arose from the conviction of Tracy Franklin for aggravated sexual assault of a child in Jefferson County.

          As the Austin Court of Appeals has since explained, the issue is whether the “convictions are based on the same act.”  Barnes v. State, 165 S.W.3d 75, 88 (Tex. App.—Austin 2005, no pet.); accord Elder v. State, 132 S.W.3d 20, 24-25 (Tex. App.—Fort Worth 2004, pet. ref’d) (conviction based on “same acts” is jeopardy-barred).  Thus, if a defendant commits the aggravated sexual assault of a child by penetrating the child’s mouth with his penis, then the defendant cannot also be prosecuted for the indecency by contact which necessarily occurred in the course of committing the aggravated sexual assault.  See e.g. Barnes, 165 S.W.3d at 88; see also Elder, 132 S.W.3d at 23-25 (subsequent conviction for aggravated sexual assault for penetration of child’s sexual organ by mouth jeopardy-barred by prior prosecution for indecency by contact relying on same conduct).

          Here, counts two and three allege two distinct offenses which cannot be subsumed within each other.  Hanson simply misreads Patterson when he broadly construes it to allow only a single conviction regardless of the number of criminal acts which occur during “a single sexual encounter.”  Rather, as the Court of Criminal Appeals explained in Lopez v. State, “An actor can be prosecuted for separate violations of Tex. Penal Code § 22.021 based on different acts which occur in the same transaction because each act is a separate violation of the child.”  108 S.W.3d 293, 300 n.28 (Tex. Crim. App. 2003).

          Because counts two and three allege distinct offenses based on different conduct, Hanson’s conviction for one of these counts does not bar his conviction for the other also.  See Elder, 132 S.W.3d at 25; Murray, 24 S.W.3d at 889.

          In the same manner, counts four and five allege distinct offenses based on different conduct.  One alleges that Hanson committed the offense by by touching J.Q.’s genitals; the other alleges that Hanson caused J.Q. to touch Hanson’s genitals.  Thus, Hanson’s conviction for one of these counts does not bar his conviction for the other.  Id.

          Accordingly, we overrule Hanson’s fourth and fifth points.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring in the judgment without a separate opinion)

Affirmed

Opinion delivered and filed October 26, 2005

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[CR25]

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[1]           541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

[2]           One of the issues on which the Court of Criminal Appeals has granted review is “Whether referring to the complainant as the victim of the offense in the jury charge constitutes an impermissible comment on the weight of the evidence when the jury charge tracked the language of the statute.”  See Casey v. State, No. PD-0548-05 (Tex. Crim. App. Sept. 14, 2005) (order granting State’s petition for discretionary review).

[3]           The term “article” as used hereinafter refers to an article of the Code of Criminal Procedure unless otherwise indicated.

[4]           The statute actually provides that the child must testify or be available to testify “in court or in any other manner provided by law.”  Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b)(3) (Vernon 2005).  However, because the complainant in this case testified at trial, we do not address testimony “in any other manner provided by law.”

[5]           The offenses occurred in Texas when the complainant was visiting his grandmother.  The complainant lives in Florida.  Salter is a “child protective investigator” employed by the State of Florida.

[6]           The Court of Criminal Appeals granted discretionary review in Biggs without issuing a written opinion, vacated the Court of Appeals’ judgment, and remanded the case to the lower court to conduct a factual sufficiency review.  See Biggs v. State, 1997 Tex. App. LEXIS 5640 at *1 (Tex. App.—Houston [1st Dist.] Oct. 30, 1997, pet. ref’d) (not designated for publication).

[7]           The Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’”  Crawford v. Wash., 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004).

[8]           See King v. Ala., 2005 Ala. Crim. App. LEXIS 123 at *12 (June 24, 2005); Cal. v. Martinez, 125 Cal. App. 4th 1035, 1050, 23 Cal. Rptr. 3d 508, 519 (Cal. App. 3d Dist. 2005); Col. v. Argomaniz-Ramirez, 102 P.3d 1015, 1017-19 (Col. 2004); Conn. v. Samuels, 273 Conn. 541, 568-69, 871 A.2d 1005, 1023 (2005); Starr v. Ga., 269 Ga. App. 466, 468-69, 604 S.E.2d 297, 299 (2004); Ill. v. Cookson, 215 Ill. 2d 194, 203-04, 830 N.E.2d 484, 489-90 (2005); Mass. v. King, 445 Mass. 217, 236-37, 834 N.E.2d 1175, 1193 (2005); Elkins v. Miss., 2005 Miss. App. LEXIS 483 at **7-8 (July 26, 2005); Gaxiola v. Nev., 119 P.3d 1225, 1230-31 (Nev. 2005); N.C. v. Painter, 2005 N.C. App. LEXIS 2000 at **13-18 (Sept. 20, 2005); S.D. v. Carothers, 2005 SD 16, ¶¶ 8-14, 692 N.W.2d 544, 546-49 (2005); Wash. v. Price, 127 Wash. App. 193, 200-01, 110 P.3d 1171, 1175 (Wash. App. Div. 2 2005); Wis. v. James, 2005 WI App. 188, ¶¶ 9-11, 2005 WI App. 188, ¶¶ 9-11, 703 N.W.2d 727, 732-33 (2005).