Opinion
NO. WR-84,238-01
12-14-2016
EX PARTE SARINA SANCHEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM CAUSE NO. 2013-CR-11692-W1 IN THE 399TH DISTRICT COURT BEXAR COUNTY
KEASLER, J., filed a dissenting opinion, in which KELLER, P.J., and HERVEY, J., joined. DISSENTING OPINION
Discontented with the habeas judge's initial findings of fact and conclusions of law, the Court remands this matter for the judge to do what he has already done and to address matters that have not been properly alleged and are legally irrelevant to the pleaded claims.
Additional findings and conclusions are unnecessary partly because, when read plainly, the current findings and conclusions contain inherent credibility findings. The habeas judge's findings include a section recounting what counsel's affidavit states, but these reiterations of counsel's affidavit are not factual findings because the enumerated list of counsel's statements is introduced with the following: "[Counsel] denies the allegations made in Applicant's application for writ of habeas [corpus] and states the following." Looking at the main fact-finding section of the judge's order adopting nearly every assertion Sanchez made at the live evidentiary hearing, it is apparent the habeas judge never intended counsel's statements to be factual findings.
See, e.g., State v. Mendoza, 365 S.W.3d 666, 671-72 (Tex. Crim. App. 2011) (concluding that the trial judge's factual findings on a motion to suppress contained "weasel words" and therefore carried no implied credibility findings).
By expressly adopting Sanchez's factual allegations, the habeas judge implicitly found Sanchez's factual allegations credible. Plucking a single finding from the nineteen entered demonstrates this concept: "During a court appearance Applicant and trial counsel went into the jury room of the 399th District Court to have sexual relations. This was not voluntary; Applicant believed that she had to do it." This finding is representative of the remaining eighteen. When the judge definitively asserted what Sanchez alleged in this fashion, he implicitly found her assertion credible. These are the kind of findings we require judges to make. And when a number of similar findings stack up and contradict what trial counsel merely "stated" in an affidavit, we can be confident that the habeas judge did not find trial counsel's statements credible.
See id. at 671 ("If the trial judge fully credited Officer Davila's testimony that he believed appellee was speeding, why not state the straightforward historical fact—'Officer Davila saw the defendant speeding.'").
The Court expresses concern with "correspondence" filed by Sarina Sanchez's habeas counsel who, in essence, asserts a Brady v. Maryland claim, even though that claim was never alleged in Sanchez's application for writ of habeas corpus or purports to form any basis of her involuntary-plea and ineffective-assistance-of-counsel claims. Without a proper supplemental application, our Rules of Appellate Procedure mandate that we not consider the claim. It therefore makes little sense to remand to address counsel's correspondence regarding a Brady claim that this Court will not consider and adds nothing to her pleaded claims.
373 U.S. 83 (1963).
TEX. R. APP. P. 73.1(c) ("The applicant or petitioner must provide all information required by the form. The form must include all grounds for relief and set forth in summary fashion the facts supporting each ground. Any ground not raised on the form will not be considered.").
The Court is also concerned with whether trial counsel's alleged conduct toward Sanchez resulted in criminal charges, as if that matters to the merits of Sanchez's properly pleaded claims. Whether trial counsel was criminally charged is legally irrelevant to Sanchez's claim that her plea was involuntary as a result of counsel's actions. Whether the prosecutor, acting with significant discretion, sought and obtained criminal charges against trial counsel as a result of his conduct toward Sanchez does not affect whether Sanchez demonstrated (1) counsel's advice was outside the range of competence demanded of attorneys in criminal cases, and (2) there is a reasonable probability that, but for counsel's deficient performance, she would not have pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 57-58 (1985); Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016).
The concurrence too concludes that the habeas judge's findings are unclear. The opinion goes on to suggest that certain findings of fact—ironically, the ones the judge in fact made—would be sufficient to hold that Sanchez's plea was involuntary. Yet the findings the concurrence would hold sufficient are unrelated to our current harm standard in this context. I am unwilling to jettison what the concurring author recently labeled "longstanding precedent": an applicant must demonstrate that there is a reasonable probability that, but for counsel's conduct, she would have pleaded not guilty and would have insisted on a trial. This is precisely the standard the habeas judge concluded Sanchez could not meet.
See generally ante.
Id. at 16-17.
Ex parte Torres, 483 S.W.3d at 47-49. --------
With these comments, I dissent. FILED: December 14, 2016 DO NOT PUBLISH