Ex parte Betancourt, No. 08-05-00063-CR (Tex. App. 7/6/2006)

• Decision Date: 06 July 2006
• Docket Number: No. 08-05-00063-CR.,08-05-00063-CR.
• Parties: EX PARTE: LUIS RAY BETANCOURT.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

EX PARTE: LUIS RAY BETANCOURT.

No. 08-05-00063-CR.

Court of Appeals of Texas, Eighth District, El Paso.

July 6, 2006.

Do Not Publish.

Appeal from 171st District Court of El Paso County, Texas, (TC# 960D07944).

Before BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Luis Ray Betancourt appeals from an order denying his application for writ of habeas corpus.Finding no error, we affirm.

FACTUAL SUMMARY

According to a search warrant affidavit, a confidential informant told Detective Kyle Summers on August 25, 1996 that Appellant was selling cocaine from his residence.Two days later, Appellant delivered cocaine to Detective Luis Gerardo who was working undercover.Gerardo made a second purchase from Appellant on September 12, 1996.On this occasion, Summers maintained surveillance on Appellant's residence while Gerardo called Appellant, and he followed Appellant from the residence to the location where the cocaine was delivered.Summers personally observed Appellant deliver the cocaine from his right pants pocket to Gerardo.

On September 16, 1996, the El Paso Police Department executed the search warrant at the home of Appellant and his wife, Michele Betancourt.Appellant was seen leaving the residence in a vehicle named in the search warrant and officers stopped the vehicle and searched it.A paper bindle containing .4 grams of cocaine was found under the dash on the driver's side of the vehicle.In the house, officers found an additional 6.0 grams of cocaine in paper bindles in a cookie jar.Appellant and his wife were arrested for possession of cocaine.A grand jury returned an indictment against Appellant for possession of cocaine of more than one but less than four grams, and two indictments for possession of cocaine with intent to deliver.An indictment for possession of cocaine was also returned against Michele.The couple retained attorney Ronald Henry to represent both of them in connection with these charges.

On April 25, 1997, Appellant entered a negotiated plea of guilty to possession of more than one gram but less then four grams of cocaine.In accordance with the plea agreement, the trial court placed him on deferred adjudication for ten years.The State dismissed the other two indictments against Appellant and also dismissed the charge against Michele.There was no appeal from the deferred adjudication order.

On September 9, 2004, Appellant filed an application for writ of habeas corpus, alleging that trial counsel rendered ineffective assistance by (1) representing both Appellant and Michele despite the conflict of interest; (2) not seeking to suppress the cocaine found in the cookie jar; (3) recommending that Appellant plead guilty to charges the State could not prove; (4) failing to advise him that the State would be required to prove "knowing" possession; and (5) failing to request a Franks hearing to challenge the search warrant.Appellant further complained that his plea was involuntary as a result of counsel's deficient performance and because the trial court did not adequately admonish him.The State filed its answer and an affidavit from Mr. Henry.Counsel stated, among other things, that the couple agreed to joint representation after he advised them of the potential conflicts of interest and potential defenses, and they both agreed that responsibility for the offense rested solely with Appellant.The Betancourts wanted a deal where Appellant would plead guilty to the possession charge and the charge against Michele would be dropped.

Four days after the State's response was filed, the trial court denied the application without a hearing.The order provided:

The Court, after having considered: (1) the applicant's writ application and the attachments thereto; and (2)the State's Answer and the attachments thereto, finds that the applicant is manifestly entitled to no relief pursuant to Article 11.072 § 7(a).

IT IS ORDERED that the applicant is manifestly entitled to no relief and the application for writ of habeas corpus filed in this cause pursuant to Article 11.072 is denied because it is frivolous.

Appellant timely filed his notice of appeal.

JURISDICTION

The State has filed a motion to dismiss the appeal for want of jurisdiction because the trial court neither addressed nor ruled on the substantive merits of Appellant's claims.It cites Ex parte Hargett,819 S.W.2d 866(Tex.Crim.App.1991)andEx parte Gonzales,12 S.W.3d 913(Tex.App.-Austin2000, pet. ref'd) in support of its motion.

Appellant filed his application pursuant to Article 11.072 of the Code of Criminal Procedure which establishes felony habeas corpus procedures in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.SeeTex.Code Crim.Proc.Ann. art. 11.072, § 1(Vernon 2005).When an application is filed under this article, a writ of habeas corpus issues by operation of law.Tex.Code Crim.Proc.Ann. art. 11.072, § 4.The trial court is required to enter a written order granting or denying the relief sought in the application no later than the 60th day after the State's answer is filed.Tex.Code Crim.Proc.Ann. art. 11.072 § 6(a).If the court determines from the face of an application, or documents attached to the application, that the applicant is manifestly entitled to no relief, the court shall enter a written order denying the application as frivolous.Tex.Code Crim.Proc.Ann. art. 11.072, § 7(a).In any other case, the court is required to enter findings of fact and conclusions of law.Id.If the application is denied in whole or in part, the applicant may appeal under Article 44.02 and Rule 31 of the Texas Rules of Appellate Procedure.Tex.Code Crim.Proc.Ann. art. 11.072, § 8.The State may appeal if the application is granted in whole or in part.Id.If a subsequent application for a writ of habeas corpus is filed after final disposition of an initial application under Article 11.072, a court may not consider the merits of or grant relief based upon the subsequent application unless the application contains specific facts establishing that the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.Tex.Code Crim.Proc.Ann. art. 11.072, § 9(a).The bar established in Section 9 is triggered by the denial of a writ application even where it is denied as frivolous.SeeEx parte Jones,97 S.W.3d 586, 589(Tex.Crim.App.2003)(stating that the denial of a frivolous initial writ application under Article 11.07 acts as a bar to filing any further writ applications, except in those extraordinary situations set out in Article 11.07, § 4).

It is well established that no appeal lies from the refusal to issue a writ of habeas corpus even after a hearing.SeeEx parte Noe,646 S.W.2d 230, 231(Tex.Crim.App.1983);Ex parte Moorehouse,614 S.W.2d 450, 451(Tex.Crim.App.1981);Ex parte Gonzales,12 S.W.3d at 914.The Court of Criminal Appeals clarified this rule in Ex parte Hargett,819 S.W.2d 866(Tex.Crim.App.1991).There, the trial court entered an order in which it refused to issue a writ of habeas corpus but nevertheless addressed the merits of the claims raised.Id. at 869.Relying on the rule that there is no appeal from the refusal to issue a writ of habeas corpus, the court of appeals dismissed for want of jurisdiction.Ex parte Hargett,819 S.W.2d 867.The Court of Criminal Appeals explained that the "hearing" referred to in the general rule is the hearing which a court might hold in order to determine whether sufficient cause exists to issue the writ or whether the merits of the claim should be addressed.Id. at 868.It is not the same as one which is held to ultimately resolve the merits of an applicant's claim.Id.When a hearing is held on the merits and the court subsequently rules on the merits, the losing party may appeal.Id.The Court of Criminal Appeals determined that even though the trial court did not issue a writ of habeas corpus, it was not a case where the district court simply refused to hear the application as presented and dismissed it.Id. at 869.Instead, the trial court undertook to rule on the merits.Id.Consequently, the court of appeals had jurisdiction.Id.

Under Hargett, the crucial question is not whether the trial court did or did not issue the writ, but whether the court did or did not consider and resolve the merits of the petition.SeeEx parte Gonzales,12 S.W.3d at 914, citing43 George E. Dix and Robert O. Dawson, Criminal Practice and Procedure§ 47.43(Texas Practice 1995).If the trial court reaches the merits of the habeas corpus application, its ruling is appealable even if it comes in the form of an order refusing to issue the writ.Gonzales,12 S.W.3d at 914, citingHargett,819 S.W.2d at 869.Conversely, an order purporting to deny the relief sought in a habeas corpus application is not appealable if the trial court did not in fact rule on the substantive merits of the applicant's claim.Ex parte Gonzales,12 S.W.3d at 914;Ex parte Bamburg,890 S.W.2d 549, 551(Tex.App.-Beaumont 1994, no pet.).Where the trial court refuses to issue the writ or denies an applicant a hearing on the merits, the applicant's remedies are limited.Ex Parte Hargett,819 S.W.2d at 868.One remedy is to present the application to another district judge having jurisdiction.Id.Another remedy is to pursue a writ of mandamus.Id.

We suggested in Ex parte Enriquez,No. 08-04-00298-CR, 2005 WL 3036531(Tex.App.-El Paso2005, pet. filed) that an appeal would not lie if a writ application filed under Article 11.072 is denied as frivolous.There, the trial court denied an Article 11.072 writ application.In its written order, the court...