Ex parte Zantos-Cuebas

• Decision Date: 25 February 2014
• Docket Number: No. 01–13–00958–CR.,01–13–00958–CR.
• Citation: 429 S.W.3d 83
• Parties: Ex parte Cresencio ZANTOS–CUEBAS, Appellant.
• Court: Texas Court of Appeals

429 S.W.3d 83

Ex parte Cresencio ZANTOS–CUEBAS, Appellant.

No. 01–13–00958–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Feb. 25, 2014.

Selina Alaniz, Houston, TX, for Appellant.

Tuck Moody McLain, District Attorney, Ronnie Yeates, Assistant District Attorney, Grimes County, Anderson, TX, for State.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

MICHAEL MASSENGALE, Justice.

Appellant Cresencio Zantos–Cuebas was charged by information with the misdemeanor offense of terroristic threat towards a person with whom he had a dating relationship. SeeTex. Penal Code Ann. § 22.07 (West 2011). Appearing before the constitutional county court without counsel, he pleaded guilty. The county court deferred adjudication, imposed a fine of $400, and placed him on community supervision.

Zantos–Cuebas is not a United States citizen. After being placed on community supervision, U.S. Immigration and Customs Enforcement detained him and initiated deportation proceedings. He filed an application for writ of habeas corpus with the constitutional county court, praying that his plea and the court's order placing him on community supervision be vacated. As justification, he claims that he does not understand English, and accordingly his rights were not adequately explained to him, to the effect that he did not knowingly and intelligently waive his constitutional rights in conjunction with entering his plea of guilty. The court denied the relief requested and held that the application was frivolous. Zantos–Cuebas now appeals, arguing that his guilty plea was involuntary.

We reverse the determination that the habeas corpus petition was frivolous because the court could not determine from the face of the application that Zantos–Cuebas was “manifestly entitled to no relief.” Accordingly, we remand the cause for the entry of a written order including findings of fact and conclusions of law. Tex.Crim. Proc.Code Ann. art. 11.072, § 7(a).

Background

Though not a United States citizen, Zantos–Cuebas has lived in this country since 2002. He was charged in the constitutional county court of Grimes County with the misdemeanor offense of terroristic threat. Although there is no reporter's record documenting the plea entered in the case, the clerk's record of the habeas corpus proceeding is before us. It contains two English-language documents recording Zantos–Cuebas's plea of guilty.

The first document is titled “Written Admonishments with Defendant's Written Waiver of Rights and Stipulation of Evidence.” The first two pages of the document recite that after the case was called to trial, Zantos–Cuebas appeared in person, waived his right to counsel, and “The Court proceeded to admonish the Defendant pursuant to Art. 26.13 T.C.C.P. ....” The document noted the consequences of a plea of guilty, including the punishment range for a Class A misdemeanor. These written admonishments included a paragraph that stated: “CITIZENSHIP: If you are not a citizen of the United States of America, a plea of guilty or nolo contendere to this offense may result in your deportation, exclusion from entry into this country, or the denial of naturalization under federal law.” The document also listed admonishments of various constitutional rights, such as the right to counsel, the right to a jury trial, the right to confront witnesses, and the right against self-incrimination. The bottom of the second page was dated and signed by the county judge.

The following page, bearing the page number 3 at the bottom of the page, bore the heading: “Stipulations of Evidence, Waiver of Rights and Judicial Confession.” In an apparent reference to the first two pages described above, the first sentence of page 3 reads: “Having all the forgoing fully explained by the Court and after having the Court admonish the Defendant of the consequences of the waiver and plea, the Defendant hereby waives the above rights and hereby enters a plea of GUILTY/NOLO CONTENDERE and further makes the following judicial admissions ....” It proceeded to identify Zantos–Cuebas as the defendant and the charge against him; it stated” “It is my desire to enter a plea of GUILTY in the foregoing named and numbered cause. In doing so I wish to waive the following: 1. My right to a trial by jury; 2. The appearance, cross examination, and confrontation of witnesses ....” Page 4 was signed and sworn to by Zantos–Cuebas, signed by the prosecutor, and signed by the county judge.

The other relevant document is titled “Order Deferring Adjudication of Guilt and Placing Defendant on Community Supervision” and is signed by Zantos–Cuebas and the county judge. It included the following recital: “The defendant was admonished by the Court of the consequences of said plea yet the defendant persisted in pleading as aforesaid.”

In his habeas corpus petition, Zantos–Cuebas alleged that he does not “speak or write the English language.” He averred that at the time he pleaded guilty, he was accompanied by a seventeen-year-old friend named Lesli Sanchez, who came along to act as an interpreter. Sanchez is not, however, a licensed court interpreter. SeeTex. Gov't Code Ann. § 57.001 (West 2013). Among other things, Zantos–Cuebas alleges that nobody translated the admonishments about his constitutional rights.

Pursuant to his plea of guilty, Zantos–Cuebas was placed on deferred adjudicationcommunity supervision. He was later detained and subjected to deportation proceedings by U.S. Immigration and Customs Enforcement. He sought to withdraw his plea of guilty by filing an application for habeas corpus relief, supported by affidavits. SeeTex.Crim. Proc.Code Ann. art. 11.072, § 2(a) (West 2005). Without holding a hearing, the county judge denied his application, handwriting on the last page of the exhibits: “I do not deal with anything about citizenship, deportation or anything involving immigration.” The county judge signed this statement, as well as a separate typed order denying habeas corpus relief and finding the application to be frivolous. See id. art. 11.072, § 7(a). The judge did not enter findings of fact or conclusions of law.

This appeal followed. See id. art. 11.072, § 8.

Analysis

Zantos–Cuebas argues that the trial court abused its discretion by denying his application for habeas corpus relief. In his petition to the trial court and in his brief on appeal, Zantos–Cuebas relied principally on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to argue that his plea was not entered voluntarily and knowingly because the trial judge did not admonish him of the immigration consequences of his plea. He also argued in a more general fashion that his plea was not voluntary because he was not made aware that he was waiving other constitutional rights, such as his right to a jury trial. He claims that any such admonitions presented by the court were not translated by Sanchez.

We review a trial court's ruling on a habeas corpus application for abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006). However, “appellate courts review de novo those ‘mixed questions of law and fact’ that do not depend upon credibility and demeanor.” Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007); see also Ex Parte Weinstein, 421 S.W.3d 656, 664 (Tex.Crim.App.2014); Ex parte Pritzkau, 391 S.W.3d 185, 186 (Tex.App.-Beaumont 2012, no pet.). “[I]f the court's application of the law to the facts does not rest on factual findings, it is afforded no deference and we review de novo.” Ex parte Roberts, 409 S.W.3d 759, 762 (Tex.App.-San Antonio 2013, no pet.).

Article 11.072 of the Code of Criminal Procedure “establishes the 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.Crim. Proc.Code Ann. art. 11.072, § 1. Those seeking relief pursuant to article 11.072 are required to file an application for writ of habeas corpus with “the clerk of the court in which community supervision was imposed.” Id. art. 11.072, § 2(a). “At the time the application is filed, the applicant 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 ....” Id. art. 11.072, § 2(b).

The trial court receiving the application is required to enter a written order granting or denying the relief sought. Id. art. 11.072, § 6(a). “In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection.” Id. art. 11.072, § 6(b).

Section 7 of article 11.072 establishes two procedures by which a trial court may dispose of the application. Id. art. 11.072, § 7(a). The first procedure allows for summary dismissal of facially frivolous applications. Id. It applies when, looking solely to the face of the application and attached documents, the application is determined to be frivolous: “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.” Id. Otherwise, a second procedure applies, and the trial court cannot rule on the application without entering findings of fact and conclusions of law: “In any other case, the court shall enter a written order including findings of fact and conclusions of law.” Id.

In this case, the trial court entered a written order denying the application as frivolous and did not enter written findings of fact or conclusions of law. Our analysis therefore begins by considering whether the court erred in “determin[ing] from the face of [the] application or documents attached...