The State of Texas v. Leonardo Fabio Garcia

Houston, TX - Deportation attorney represented Leonardo Fabio Garcia with a notice from the United States Department of Homeland Security that he was subject to deportation as a result of his two prior misdemeanor theft convictions..

The dispositive issues in this appeal are (1) whether Code of Criminal

Procedure article 44.01 authorizes the State to appeal the grant of relief to an

applicant for a writ of habeas corpus filed pursuant to article 11.09 and if not, (2)

whether a grant of relief to an applicant for a writ of habeas corpus under article

11.09 can be fairly characterized as an unfavorable ruling on a ruling from which

the State would otherwise have the right to appeal. Tex. Code Crim. Proc. Ann. arts.

11.09, 44.01. 2

Appellee Leonardo Fabio Garcia, who is not a United States citizen, was

convicted on a plea of guilty to the offense of misdemeanor theft on November 19,

1998. Appellee subsequently pleaded guilty to another misdemeanor theft charge in

County Criminal Court at Law No. 8 on May 15, 2007. 1 The trial court assessed

punishment at 10 days in the Harris County Jail with credit for three days' time

served. Appellee did not appeal the 2007 conviction.

On November 26, 2019 appellee received notice from the United States

Department of Homeland Security that he was subject to deportation as a result of

his two prior misdemeanor theft convictions. See 8 U.S.C. § 1227(a)(2)(A)(ii)

(providing for deportation of "[a]ny alien who at any time after admission is

convicted of two or more crimes involving moral turpitude.”). On May 1, 2020,

appellee filed an application for writ of habeas corpus pursuant to article 11.09 of

the Code of Criminal Procedure in which he alleged that his guilty plea was

involuntary because he was not advised of the immigration consequences of his plea.

After conducting a hearing the trial court granted habeas relief and vacated the

judgment in the 2007 conviction. The State attempted to appeal the trial court's

decision pursuant to article 44.01 of the Code of Criminal Procedure. Appellee

challenges the State's right to appeal. For the reasons set forth below, we dismiss the

State's appeal for want of jurisdiction.

JURISDICTION

As a reviewing court, we have the duty to make an initial determination of

whether the court has jurisdiction to resolve the matter presented before it. See State

v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other

1 Appellee raised involuntariness of both pleas in his application for writ of habeas corpus

in the trial court. The 1998 conviction was not considered by the trial court because only the 2007

conviction was before the County Criminal Court at Law No. 8. In this opinion, we address the

2007 conviction.3

grounds by State v. Medrano, 67 S.W.3d 892, 901–03 (Tex. Crim. App. 2002). The

right to appeal is a right conferred and defined by statute. See Marin v. State, 851

S.W.2d 275, 278 (Tex. Crim. App. 1993). This is particularly important when the

appealing party, the State, has a limited right of appeal. See Tex. Code Crim. Proc.

Ann. art. 44.01 (setting forth when the State may appeal).

Ordinarily, a respondent in a habeas action, such as the State, cannot appeal.

Board of Pardons & Paroles ex rel. Keene v. Ct. of App. of Tx., Eighth Dist., 910

S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding); In re Tex. Bd. of

Pardons & Paroles, 495 S.W.3d 554, 558 (Tex. App.—Houston [14th Dist.] 2016,

orig. proceeding). As an exception to this general rule, article 44.01(k) grants the

State the right to appeal an order granting relief to an applicant for writ of habeas

corpus under article 11.072 of the Code of Criminal Procedure. See Tex. Code Crim.

Proc. Ann. art. 44.01(k). Appellee in this case filed his application for writ of habeas

corpus challenging his 2007 conviction under article 11.09 of the Code of Criminal

Procedure.

Article 11.09 of the Code of Criminal Procedure allows a party confined on a

misdemeanor charge to apply for habeas relief to "the county judge of the county in

which the misdemeanor [was] charged to have been committed.” Tex. Code Crim.

Proc. Ann. art. 11.09. The Court of Criminal Appeals has held that the term

"confined” in Article 11.09 does not require actual current confinement and that the

county courts at law have habeas jurisdiction if a person is merely restrained due to

the conviction. Ex parte Schmidt, 109 S.W.3d 480, 482–83 (Tex. Crim. App. 2003).

This court has applied the confinement standard in the immigration context

concluding that a trial court has jurisdiction over an article 11.09 habeas despite the

fact that the immigrant was not then in the custody of the State of Texas because

pending deportation was based solely on the immigrant's misdemeanor convictions. 4

Phuong Anh Thi Le v. State, 300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.]

2009, no pet.).

Appellee's habeas corpus application collaterally attacked appellee's two

prior misdemeanor theft convictions: (1) appellee's order of deferred adjudication

community supervision for Class B misdemeanor theft, dated November 19, 1998;

and (2) appellee's final conviction for Class B misdemeanor theft by check, dated

May 15, 2007. The portion of appellee's habeas corpus application that challenged

his 1998 order of deferred adjudication challenged the viability of that conviction

under articles 11.072 and 11.09 of the Code of Criminal Procedure. See Tex. Code

Crim. Proc. Ann. art. 11.072 ("establish[ing] 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. Code Crim. Proc. Ann. art. 11.09 (establishing the procedure for habeas corpus

proceedings when "a person is confined on a charge of misdemeanor[.]”). The

portion of appellee's habeas corpus application that challenged his 2007 conviction

for theft by check, though, contested the viability of that conviction only under

article 11.09 because appellee was sentenced to jail rather than receiving community

supervision. Compare Tex. Code Crim. Proc. Ann. art. 11.072 with Tex. Code Crim.

Proc. Ann. art. 11.09. The trial court's order granting relief and vacating the court's

judgment of conviction and sentence in the 2007 conviction does so only under the

trial court's authority under article 11.09.

Article 44.01 of the Code of Criminal Procedure provides the circumstances

under which the State may appeal in a criminal case. See Tex. Code Crim. Proc.

Ann. art. 44.01. Article 44.01(k) specifically entitles the State "to appeal an order

granting relief to an applicant for a writ of habeas corpus under Article 11.072.” But

neither subsection (k), nor any other provision in Article 44.01, explicitly provides 5

the State the right to appeal an order granting relief to an applicant for a writ of

habeas corpus filed under article 11.09. See Tex. Code Crim. Proc. Ann. art. 44.01.

The State, however, may appeal an unfavorable ruling on an applicant's habeas

corpus application when the State would otherwise have the right to appeal the order.

See e.g., State v. Young, 810 S.W.2d 221, 222–23 (Tex. Crim. App. 1991) (holding

the appellate court had jurisdiction over the State's appeal of an order granting

habeas corpus relief that had the effect of dismissing the indictments pending against

the appellees because, under Article 44.01(a)(1), the State is entitled to appeal order

that dismisses an indictment).

Here, the State asserts that the trial court's judgment granting habeas corpus

relief and vacating the trial court's prior judgment "had the effect of granting a new

trial,” which the State may appeal pursuant to article 44.01(a)(3). In the alternative,

the State asserts the trial court's order granting habeas corpus relief "was tantamount

to an order granting a motion to arrest the trial court's judgment,” which the State

may appeal pursuant to article 44.01(a)(2). We address the State's assertions in turn.

I. Motion for New Trial

The State asserts that the trial court's grant of appellee's application in this

case is equivalent to the grant of a new trial, and because the State has the right to

appeal the grant of a new trial under article 44.01, the State may appeal the habeas

ruling in this case. A new trial, contemplated by subsection (a)(3), is "the rehearing

of a criminal action after the trial court has, on the defendant's motion, set aside a

finding or verdict of guilt.” Tex. R. App. P. 21.1(a); see also State v. Evans, 843

S.W.2d 576, 577 (Tex. Crim. App. 1992). In this case, however, the trial court did

not grant a new trial. The court vacated the conviction and ordered "applicant

discharged and released without delay.”

Relying on State v. Garcia, No. 13-11-00689-CR, 2012 WL 7849303, at *3–6

4 (Tex. App.—Corpus Christi-Edinburg Dec. 13, 2012, no pet.) (mem. op., not

designated for publication), the State argues that the trial court's grant of relief

pursuant to article 11.09 was the equivalent of the grant of a motion for new trial.

Although we are not bound by an unpublished decision from another court of

appeals, see Tex. R. App. P. 47.7(a), we address Garcia because the State relies on

its holding for jurisdiction in this appeal.

In Garcia, the trial court granted habeas corpus relief because "it was unclear

whether Garcia made his guilty plea knowingly.” 2012 WL 7849303 at *4. Garcia,

like appellee, in this case, was an undocumented immigrant subject to deportation

due to a previous guilty plea to a misdemeanor drug offense. Id. at *1. Garcia filed

an application for writ of habeas corpus pursuant to article 11.09 of the Code of

Criminal Procedure in which he alleged ineffective assistance of counsel because his

lawyer in the misdemeanor drug case failed to advise him of the possible

immigration consequences of his guilty plea. Id. The trial court granted habeas relief

finding that the facts of the case established doubt as to whether Garcia understood

the consequences of his plea.2

Id. at *4. The State appealed the grant of habeas corpus

relief. Id. In addressing its jurisdiction over the State's appeal, the Thirteenth Court

of Appeals held the trial court's ruling was the functional equivalent of the grant of

a motion for new trial. Id. As such, the court held it had jurisdiction over the State's

appeal. Id.

We decline the State's invitation to follow the Thirteenth Court's unpublished

opinion in Garcia in this case. In Garcia, the court held, "Since the trial court order

2 While not applicable to our jurisdictional analysis, we note that the appellee in Garcia

pleaded guilty on September 7, 2010 after the United States Supreme Court decided Padilla v.

Kentucky, 559 U.S. 356 (2010), which held that appellate counsel engages in ineffective assistance

if they fail to advise a defendant of the immigration consequences of a guilty plea. Id. at 368–69.

Appellee in today's case pleaded guilty in 2007 prior to the Court's decision in Padilla.7

return[s] the case to the posture it had been in before the plea was accepted, the trial

court order grant[s] a new trial, irrespective of the label or terms used in the motion

or order.” Garcia, 2012 WL 7849303, at *3 (quoting Evans, 843 S.W.2d at 577).

Here, unlike the trial court in Garcia, the trial court did not make specific findings

of fact, nor did the court's order grant a new trial. The trial court vacated the

conviction and discharged appellee. The record does not reflect that the trial court

ordered a rehearing in this case.

We do not agree that the trial court's order in this case may be appealed by

the State as the functional equivalent of a motion for new trial. The Legislature

specifically allows the State to appeal an order granting relief to an applicant for a

writ of habeas corpus filed pursuant to article 11.072 of the Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 44.01(k). It would be a simple

enough matter for the Legislature to amend Article 44.01 to authorize the State to

appeal the grant of relief to an applicant for a writ of habeas corpus filed pursuant to

article 11.09, but the Legislature has not done so. The Legislature chose to single out

grants of 11.072 habeas-corpus relief when granting the State the right to appeal. We

are not allowed to rewrite the statute in the guise of judicial construction. See Tex.

Const. article II, § 1; Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

II. Motion to Arrest Judgment

The State further contends that the trial court's order granting appellee habeascorpus relief was the functional equivalent of a motion in arrest of judgment, the

grant of which may be appealed by the State. See Tex. Code Crim. Proc. Ann. art.

44.01(a)(2). A motion in arrest of judgment is defined as a defendant's oral or written

suggestion that, for reasons stated in the motion, the judgment rendered against the

defendant was contrary to law. Tex. R. App. P. 22.1. A motion in arrest of judgment

is essentially a post-trial motion to quash the indictment and must be based on the 8

"'face of the record'—the indictment, plea, verdict, and sentence.” State v. Savage,

905 S.W.2d 268, 269 (Tex. App.—San Antonio 1994), aff'd, 933 S.W.2d 497 (Tex.

Crim. App. 1996) (citing United States v. Sisson, 399 U.S. 267, 280–82 (1970)). It

cannot be grounded on proof offered at trial. Id.

In this case, appellee's application for writ of habeas corpus alleged

ineffective assistance because his attorney failed to advise him of the immigration

consequences of his guilty plea. See Padilla v. Kentucky, 559 U.S. 356, 369–72

(2010). Appellee's claim of ineffective assistance of counsel required testimony

from appellee and an affidavit from the attorney who represented appellee in the

2007 plea. Because appellee's claim of ineffective assistance of counsel was not

based on the face of the record, appellee's application for writ of habeas corpus

cannot be considered the equivalent of a motion in arrest of judgment. See Tex. R.

App. P. 22.2; Smith v. State, 15 S.W.3d 294, 298 (Tex. App.—Dallas 2000, no pet.)

citing State v. Borden, 787 S.W.2d 109, 110–11 (Tex. App.—Houston [14th Dist.]

1990, no pet.) ("[T]he rules governing the use of the motion in arrest of judgment

have very serious restrictions.”).

Because the trial court's grant of relief to an applicant for a writ of habeas

corpus under article 11.09 cannot be fairly characterized as an unfavorable ruling on

a ruling from which the State would otherwise have the right to appeal the order,

article 44.01 does not authorize the State's appeal in this cause. We are without

jurisdiction to consider the issues raised by the State.

Having determined that the State’s appeal does not properly invoke the jurisdiction of the court, we dismiss the appeal for want of jurisdiction.