Ex parte Ali

• Decision Date: 17 May 2012
• Docket Number: No. 03–11–00323–CR.,03–11–00323–CR.
• Citation: 368 S.W.3d 827
• Parties: Ex parte Aftab ALI.
• Court: Texas Court of Appeals

368 S.W.3d 827

Ex parte Aftab ALI.

No. 03–11–00323–CR.

Court of Appeals of Texas,

Austin.

May 17, 2012.

Daniel H. Wannamaker, Austin, TX, for appellant.

Kevin Stryker, Assistant Williamson County Attorney, Georgetown, TX, for appellee.

Before Chief Justice JONES, Justices PEMBERTON and ROSE.

OPINION

BOB PEMBERTON, Justice.

Appellant Aftab Ali pleaded guilty to the offense of delivery of drug paraphernalia. SeeTex. Health & Safety Code Ann. § 481.125(b) (West 2010). Punishment was assessed at 180 days in county jail and a fine of $4,000. The trial court suspended imposition of the sentence and placed Ali on community supervision for 12 months. Subsequently, Ali filed an application for writ of habeas corpus, alleging that his trial counsel was ineffective in failing to warn him of the immigration consequences of his guilty plea. The trial court denied the application. In a single issue on appeal, Ali asserts that he is entitled to habeas relief. We will affirm the trial court's order.

BACKGROUND

According to the arrest affidavit in the record, on or about March 28, 2008, an undercover officer entered a convenience store in Taylor and asked Ali, the counter clerk, for a “brown bag special.” According to the officer, Ali asked him “if that was curved or straight, meaning the design of the pipe,” and then placed the following items in a small brown bag: (1) a glass pen; (2) small pieces of brillo pad (which, the officer added, were “formed to fit the glass pipe”); and (3) a lighter. The glass pen and brillo pad, the officer claimed, had been hidden behind the counter. The officer further averred that Ali then handed him the bag in exchange for an unspecified amount of money. The officer concluded:

Your affiant believes the defendant knew the material was drug paraphernalia as evident [sic] by knowing the term “brown bag special” as well as concealing the cheaply made glass pen behind the counter, not a place a legitimate writing utensil would be placed for sale, having the brillo formed to fit the pipe and concealing all the items behind the counter. The glass pen is easily converted to a smoking pipe. The defendant also had knowledge brillo material was needed with the glass pipe for inhaling crack cocaine into the body.

Based on the above allegations, Ali was charged with intentionally or knowingly delivering drug paraphernalia to the undercover officer. On February 9, 2009, Ali appeared in court with his attorney and pleaded guilty to the charged offense. Prior to entering his plea, Ali had read and signed written admonishments concerning the consequences of his plea. One such admonishment was the following: “If Defendant is not a United States citizen, a plea of ‘GUILTY’ or ‘NO CONTEST’ to the offense charged may result in deportation, exclusion from admission to this country, or the denial of naturalization under federal law.” At the plea hearing, the trial court asked Ali (1) if he had read and signed the admonitions along with his attorney and (2) if he understood his rights in the case, including his right to a jury trial. To each question, Ali answered, “Yes, ma‘am.” The trial court also asked Ali the following: “By signing these admonishment forms you are indicating to me you want to waive your rights, you want to enter a plea of guilty to this charge and accept a plea bargain agreement. Is that how you wish to proceed?” Ali answered, “Yes, ma'am.” The trial court then accepted Ali's guilty plea, adjudged him guilty, and sentenced him as noted above.

Approximately one year later, after Ali's probationary term had been completed, Ali filed an application for writ of habeas corpus. In the application, Ali alleged that his guilty plea had been involuntary due to the ineffective assistance of counsel. The trial court denied the application, but this Court, concluding that the trial court had not considered the merits of the application as required by article 11.072 of the code of criminal procedure, reversed and remanded the cause for further proceedings. See Ex parte Ali, No. 03–10–00207–CR, 2010 WL 5376860, 2010 Tex.App. LEXIS 10018 (Tex.App.-Austin Dec. 16, 2010, no pet.) (mem. op., not designated for publication). Subsequently, the trial court directed the parties to file additional affidavits and to submit proposed findings of fact and conclusions of law. The evidence considered by the trial court, which we summarize in detail below, included the affidavits of Ali, Ali's trial counsel, and Hasibullah Karim, a person who had been charged with a similar offense and who had been represented by the same attorney. After considering the evidence, the trial court entered its findings of fact and conclusions of law and denied relief. This appeal followed.¹

STANDARD OF REVIEW

In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling and uphold that ruling absent an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006); Ex parte Karlson, 282 S.W.3d 118, 127 (Tex.App.-Fort Worth 2009, pet. ref'd). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts arbitrarily or unreasonably. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd).

To prevail on a post-conviction writ of habeas corpus, the applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002). In habeas corpus proceedings, “[v]irtually every fact finding involves a credibility determination” and “the fact finder is the exclusive judge of the credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex.Crim.App.1996). In an article 11.072 habeas case, such as the one before us, the trial court is the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex.Crim.App.2011). “There is less leeway in an article 11.072 context to disregard the findings of a trial court” than there is in an article 11.07 habeas case, in which the Court of Criminal Appeals is the ultimate fact finder. Id. Thus, the familiar Guzman standard of review controls in such cases. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). Under this standard, the appellate court affords almost total deference to a trial court's factual findings when supported by the record, especially when those findings are based upon credibility and demeanor. Id. at 787. Moreover, “a reviewing court will defer to the factual findings of the trial judge even when the evidence is submitted by affidavit.” Ex parte Thompson, 153 S.W.3d 416, 425 (Tex.Crim.App.2005) (citing Manzi v. State, 88 S.W.3d 240, 242–44 (Tex.Crim.App.2002)). “When the trial court's findings of fact in a habeas corpus proceeding are supported by the record, they should be accepted” by the reviewing court. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App.2006) (citing Ex parte Evans, 964 S.W.2d 643, 648 (Tex.Crim.App.1998); Ex parte Jarrett, 891 S.W.2d 935, 940 (Tex.Crim.App.1994)). We afford the same amount of deference to the trial court's application of the law to the facts, to the extent that the resolution of the ultimate question turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007). However, when the facts are uncontested and the trial court's ruling does not turn on the credibility or demeanor of witnesses, a de novo review by the appellate court is appropriate. Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999); see Ex parte Brown, 158 S.W.3d 449, 453 (Tex.Crim.App.2005).

ANALYSIS

Jurisdiction

As an initial matter, the State contends that the trial court lacked jurisdiction to consider Ali's habeas application. For a trial court to have jurisdiction to consider a habeas application, among other requirements, the applicant must be subject to “confinement” or “restraint.” See Ex parte Schmidt, 109 S.W.3d 480, 481–83 (Tex.Crim.App.2003); Rodriguez v. Court of Appeals, 769 S.W.2d 554, 557–58 (Tex.Crim.App.1989); see alsoTex.Code Crim. Proc. Ann. arts. 11.01, 11.09 (West 2005). The State asserts that because there is no evidence that Ali is the subject of current deportation proceedings, he has failed to show that he was subject to either “confinement” or “restraint” as a result of his misdemeanor conviction. We disagree.

The terms “confinement” and “restraint,” for habeas corpus purposes, have been defined broadly. “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 (West 2005). “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 (West 2005). “The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” Id. art. 11.23 (West 2005). “Concepts of ‘confinement’ and ‘restraint’ encompass incarceration, release on bail or bond, release on probation or parole, or any other restraint on ‘personal liberty.’ ” Ex parte Davis, 748 S.W.2d 555, 557 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd).

Moreover, the completion of an applicant's sentence or probationary term does not deprive the trial court of jurisdiction if the applicant remains subject to...