Ex parte Govea

• Decision Date: 21 August 2019
• Docket Number: NO. 03-19-00058-CR,03-19-00058-CR
• Parties: Ex parte Gaspar Benavides Govea
• Court: Texas Court of Appeals

Ex parte Gaspar Benavides Govea

NO. 03-19-00058-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 21, 2019

FROM THE COUNTY COURT OF LLANO COUNTY

NO. WH-025/15478, HONORABLE MARY S. CUNNINGHAM, JUDGE PRESIDING

MEMORANDUM OPINION

Gaspar Benavides Govea was charged with unlawful possession of less than two ounces of marijuana. See Tex. Health & Safety Code § 481.121(a), (b)(1). After he was charged, Govea entered a plea of nolo contendere per the terms of a plea-bargain agreement, and the trial court deferred his adjudication of guilt and placed him on community supervision for four months. Many years later, Govea filed an application for writ of habeas corpus challenging the propriety of the judgment deferring his adjudication of guilt, his plea, and his waiver of his right to an attorney. See Tex. Code Crim. Proc. art. 11.072. After convening a hearing on the writ application, the trial court denied the application. In four issues on appeal, Govea challenges the trial court's ruling. We will affirm the order by the trial court denying Govea's application for writ of habeas corpus.

BACKGROUND

As set out above, Govea was charged with possession of a controlled substance, and in 2013 he entered a plea of nolo contendere per the terms of a plea agreement with the State. Under the agreement, Govea agreed to waive, among other things, his rights to an attorney at trial, to a trial by jury, and to an appeal. The signed waiver also specified that Govea fully understood "the consequences of [his] action." In accordance with the plea agreement, the trial court deferred Govea's adjudication of guilt and placed him on community supervision for four months. Govea successfully completed his community supervision, and the trial court issued an order discharging him from community supervision. See Tex. Code Crim. Proc. art. 42A.111(a), § 5(c) (explaining that "the judge shall dismiss the proceedings against the defendant and discharge the defendant" "if the judge has not proceeded to adjudication of guilt" following "expiration of a period of deferred adjudication community supervision"). Several years later, Immigration and Customs Enforcement officers took Govea into custody. While in custody, Govea filed an application for writ of habeas corpus related to the 2013 case. See id. art. 11.072.

In his writ application, Govea argued that the 2013 judgment should be vacated and also requested that the trial court "set aside" the waivers that he signed as part of the plea agreement because he did not knowingly, intelligently, and voluntarily enter his plea or agree to waive his rights. When seeking habeas relief, Govea stated that the trial court did not inform him during the 2013 proceeding that entering a plea of nolo contendere to the possession charge might result in his deportation or other immigration consequences. Relatedly, Govea urged that before entering his plea, the State encouraged him to plead nolo contendere and to waive his right to an attorney but failed to disclose to him that there were potential deportation consequences. As support for his arguments, Govea attached to his writ application several exhibits, including his affidavit in which he described his interactions with the trial court and with the State before entering his plea.

The State filed a response to Govea's writ application and argued that the trial court was not required to admonish Govea of potential deportation consequences because the charged offense was a misdemeanor. Further, the State asserted that Govea knowingly, intelligently, and voluntarily pleaded nolo contendere to the charged offense and agreed to waive, among other rights, his right to an attorney. Alternatively, the State urged that Govea's claims were barred by the doctrine of laches.

As support for its contentions, the State attached to its response an affidavit from Officer Eric Van Pelt who arrested Govea and investigated the 2013 case. In his affidavit, Officer Van Pelt explained that he no longer remembered the underlying offense. Further, the State attached an affidavit from another law-enforcement officer specifying that the evidence collected in the underlying offense had all been destroyed. Moreover, the State included as exhibits a judgment and other paperwork pertaining to a 2010 possession conviction in which Govea was represented by counsel and also entered a plea of nolo contendere per a plea-bargain agreement. The signed plea paperwork stated, among other things, that "any plea of guilty or no contest may result in deportation, exclusion from admission to the country, and/or the denial of naturalization under federal law." The 2010 judgment specified that Govea was admonished regarding the potential consequences of his plea.

The trial court convened a hearing regarding Govea's writ application, but no witnesses testified during the hearing. After the hearing, the trial court denied Govea's writ application and issued the following findings of fact and conclusions of law:

Findings of Fact

2. Applicant signed a "Waiver of An Attorney" and then Applicant pled "no contest" pursuant to a plea agreement, to the Class B misdemeanor offense ofpossession of marijuana [in the 2013 case].

. . .

7. Prior to Applicant's plea to the above charge, Applicant was arrested on May 17, 2009 in Burnet County, Texas for [another] . . . possession of marijuana [charge].

8. On February 25, 2010 Applicant in [the Burnet County case], represented by counsel and pursuant to a plea negotiation, pled "Nolo Contendere" and was placed on 8 months Deferred Adjudication community supervision probation . . . . In that proceeding Applicant was informed in the plea papers that if he was a non-citizen that a plea of guilty or no contest may result in his deportation, exclusion from admission to this country, and/or the denial of naturalization under federal law.

9. Llano County Sheriff's office is not in possession of the seized marijuana [in the 2013 case] as it was destroyed.

10. Llano County sheriff deputy Eric Van Pelt does not recollect the details of the stop, investigation and arrest of Applicant [for the 2013 case].

. . .

Conclusions of Law

25. . . . Applicant pled to an identical charge 3 years earlier in which he was represented by counsel, advised of his rights and the consequence of his plea with respect to deportation proceedings. . . . Further, he stated [that he fully understood the consequences] when he signed the Waiver of an Attorney [in the 2013 case] . . . .

26. The Court further finds the Application is barred by la[]ches. Applicant successfully completed his community [supervision] and was discharged on July 17, 2013. The evidence in this case, marijuana, was destroyed. The arresting officer does not recollect the details of the stop, investigation and arrest of Applicant [in the 2013 case]. The State, if the court grants the Application, would have to proceed to trial without the marijuana and the testimony of the arresting officer as to the details of the offense, hence the State would be prejudiced from achieving justice. This prejudice was solely caused by Applicant waiting over 5 years to file his application. Applicant has not provided any valid reason for his filing a late petition for relief. As stated in Perez the State possesses a legitimate interest in the "repose and finality of its convictions." . . . Applicant has not shown or demonstrated any fact that indicates that his claim is not barred by la[]ches.

Govea appeals the trial court's order denying his habeas application.

STANDARD OF REVIEW AND GOVERNING LAW

An individual convicted of a felony or misdemeanor may seek habeas "relief from an order or judgment of conviction ordering community supervision." Tex. Code Crim. Proc. art. 11.072, § 1. When a person files a writ application, he "must be, or have been, on community supervision, and the application must challenge the legal validity of . . . the conviction for which or order in which community supervision was imposed" or "the conditions of community supervision." Id. art. 11.072, § 2(b). "[T]he completion of an applicant's sentence or probationary term does not deprive the trial court of jurisdiction if the applicant remains subject to collateral legal consequences resulting from his conviction or sentence." Ex parte Ali, 368 S.W.3d 827, 831 (Tex. App.—Austin 2012, pet. ref'd). Collateral legal consequences include detention by immigration officials and potential deportation. Phuong Anh Thi Le v. State, 300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

Appellate courts review a trial court's ruling on an application for writ of habeas corpus under an abuse-of-discretion standard of review. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). "A trial court abuses its discretion when its ruling is arbitrary or unreasonable." Gaytan v. State, 331 S.W.3d 218, 223 (Tex. App.—Austin 2011, pet. ref'd). But a trial court does not abuse its discretion if its ruling lies within "the zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); see Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). Under that standard, appellate courts "review the record evidence in the light most favorable to the trial court's ruling." Kniatt, 206 S.W.3d at 664.

To succeed under 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 Ali, 368 S.W.3d at 830. In habeas corpus proceedings, "[v]irtually every fact findinginvolves 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). For habeas proceedings under article 11.072, "the trial court is the sole finder of fact," and appellate courts afford "almost total deference to a trial court's factual findings when supported by the record,...