Ex parte Palomo
| Decision Date | 29 December 2022 |
| Docket Number | 01-21-00707-CR |
| Parties | EX PARTE LESLIE PALOMO |
| Court | Texas Court of Appeals |
EX PARTE LESLIE PALOMO
No. 01-21-00707-CR
Court of Appeals of Texas, First District
December 29, 2022
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law No. 2 Galveston County, Texas Trial Court Case No. CV-0088967
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
SARAH BETH LANDAU JUSTICE
Leslie Palomo appeals from the denial of her post-conviction application for writ of habeas corpus seeking to set aside a misdemeanor conviction for theft. Palomo contends (1) she is actually innocent, (2) the conviction is void because she was given an illegal sentence, and (3) her plea was involuntary. We affirm the habeas
court's denial of relief because Palomo did not meet her burden of proof for any of the three claims.
I. Background
Palomo was charged with committing a Class B misdemeanor offense of theft.
In September 2018, Palomo proceeded pro se and negotiated a plea agreement reducing her charge to a Class C misdemeanor offense of theft. The printed plea admonishment stated:
I am mentally competent and I understand that I am charged with the misdemeanor offense of Class C Theft and for which the punishment is by a fine not to exceed $500, or confinement in the Galveston County [] Jail not to exceed 6 days or both
Palomo entered a plea of nolo contendere, was found guilty of the Class C misdemeanor, and was assessed a $300 fine. The judgment stated:
Leslie Palomo be and is found to be guilty as charged of the reduced offense of Class C Theft and that the State of Texas do have and recover of and from this same defendant a fine of $300 dollars and all costs of this prosecution, and that this same defendant be confined in the county jail to remain until said fine and all costs of this prosecution have been fully paid, for all of which let execution issue. Defendant is ordered to immediately report to the department of court services to pay in one lump sum on this day (or) to pay in installments as determined by the department of court services, his/her fine, fees, and/or court costs. Said defendant is given credit for time served in jail for a period of 1 days
In September 2021, Palomo filed a habeas petition, arguing that her plea agreement resulted in an illegal sentence. In support, Palomo alleged that she was
admonished that she was subject to jail time; she was sentenced to imprisonment pending payment of her fine; and she was given credit for one day in jail.
No evidentiary hearing was held. The trial court entered findings of fact and conclusions of law, summarized as follows: it found no controverted or unresolved issues of fact material to the disposition of Palomo's application for writ of habeas corpus; that Palomo entered a plea intelligently, knowingly, and voluntarily, and was found guilty of a Class C misdemeanor and assessed a fine of $300; Palomo received credit for time served in jail; Palomo was never confined in jail as part of her punishment; Palomo entered a payment plan for the assessment of the fine and costs, and did fully pay; and that Palomo's application was not made under oath and not supported by an attached affidavit. It also concluded that Palomo sought relief under article 11.09 of the Texas Code of Criminal Procedure; that Palomo's application was deficient; that there is no merit to Palomo's claim of an illegal sentence; that the punishment assessed was within the legal range of punishment; that the court is required to credit a defendant for the time spent in jail for their case; that any erroneous admonishment did not render the punishment illegal; that the plea form does not show that Palomo received an erroneous admonishment; that the court was not required to admonish Palomo; and that even if the admonishment was erroneous Palomo has not established that it rendered her plea involuntary.
The habeas court denied Palomo relief. This appeal followed.
II. Standard of Review
When reviewing the habeas court's decision to grant or deny relief, we view the facts in the light most favorable to the habeas 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); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The 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 Allen, 619 S.W.3d 813, 816 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd). The applicant for a writ of habeas corpus bears the burden of proving their allegations by a preponderance of the evidence. Kniatt, 206 S.W.3d at 664.
III. Discussion A. Substantial Compliance
Before considering the merits of Palomo's appeal, we first consider the State's argument that Palomo's application is deficient because it is unsworn. See TEX. CODE CRIM. PROC. ART. 11.14(5) (HABEAS PETITION MUST INCLUDE OATH THAT ALLEGATIONS OF PETITION ARE TRUE, ACCORDING TO BELIEF OF PETITIONER).
The lack of verification does not prevent the habeas court from acting or the appellate court from reviewing the habeas court's action. Druery v. State, 412 S.W.3d 523, 532-33 (Tex. Crim. App. 2013); Ex parte Golden, 991 S.W.2d 859, 861 (Tex. Crim. App. 1999) ("We hold that Article 11.14 does not limit habeas
corpus jurisdiction."). The Texas Court of Criminal Appeals has suggested that the verification requirement can be rendered moot "to some extent." See Druery, 412 S.W.3d at 533 (describing mootness as occurring when trial court conducts hearing, non-moving party has chance to respond...
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