Ex parte Saldana

EX PARTE MELY SALDANA

NUMBER 13-17-00462-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

October 11, 2018

On appeal from the 430th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Contreras, Longoria, and Hinojosa

Memorandum Opinion by Justice Longoria

The State appeals the granting of appellee Mely Saldana's application for writ of habeas corpus. The State contends the habeas court erred by: (1) determining appellee to be actually innocent; (2) declaring appellee not guilty; and (3) granting relief on the basis of ineffective assistance of counsel. The State further argues that the judgment should be reformed as to the fine imposed. We reverse and render judgment denying Saldana's application for writ of habeas corpus.

I. BACKGROUND

Saldana was indicted for the offense of injury to a child by omission. See TEX. PENAL CODE ANN. § 22.04(a)(1), (b)(1) (West, Westlaw through 2017 1st C.S.). Saldana failed to appear and a judgment nisi was rendered and a capias was issued for her arrest. Saldana was later taken into custody pursuant to the capias. Saldana entered a plea of guilty as to the lesser included offense of reckless injury to a child, by omission, see id. § 22.04(a)(3), (b)(1), (f), in exchange for the State's recommendation that her sentence be suspended and she be placed on community supervision. The trial court accepted Saldana's plea, pronounced sentence, and rendered judgment in accordance with the agreements and stipulations of the parties. Saldana then filed her application for writ of habeas corpus alleging deprivation of her Sixth Amendment right to effective counsel and her right to testify.

In her application, Saldana states that she "is not guilty of the alleged offense." Saldana's application then details the events and circumstances leading up to her arrest. She states that on the night her son was injured, her estranged husband had been arguing with her son and "pushed [her] son and he fell to the ground, injuring his foot." She alleges that her husband then threatened her not to tell the police about what had happened. The next day, rather than taking her son to the hospital to assess his injury, she believed it was best to take her son to a "healer" because she was afraid the hospital would call the police. The "healer" massaged his foot in an attempt to alleviate his pain. Saldana's amended application and her brief in support of her amended application offer contradictory information as to what occurred next. As stated in her amended application, a few weeks after the "healer," Saldana's son was brought to the hospital by a concerned neighbor and Saldana was then brought in for questioning by the McAllen Police Department. However,according to her brief in support of the amended application, Saldana claims she brought her son to a doctor the day after the "healer," but no x-rays were taken. Her brief then goes on to say Saldana was the one who took her son to the hospital six days after the injury and her son's foot was determined to be fractured. The brief also states that Saldana called the police herself. Saldana was ultimately charged with injury to a child.

Saldana argues in her application that her guilty plea was a result of ineffective assistance of counsel. She argues that her attorney disregarded her claims of innocence and told her that she needed to plead guilty in order for her son to be released from CPS custody. Saldana further argues that her attorney was "worried more with expediency" than with justice for Saldana.

A hearing was held on the application for writ of habeas corpus. During the hearing, Saldana testified that she only met with her lawyer for "like ten minutes" prior to her plea hearing. Saldana further testified that she told her attorney that she had taken her son to a healer and to a doctor, and that she explained the circumstances of the injury. She told the habeas court that her attorney did not inform her that she could have a trial, testify on her own behalf, or that her conviction would lead to deportation.

Saldana's attorney for the underlying plea agreement, Sylvia Vega-Gonzalez, testified that she was appointed to defend Saldana on the underlying injury to a child charge. Vega-Gonzalez testified that she does not recall specifically how long she and Saldana met, but she does recall discussing the case with Saldana and being told of the urgency to get her son out of a detention facility. Vega-Gonzalez testified that Saldana gave her the information regarding where her son was being held and that Vega-Gonzalez called the detention center herself to confirm the information. Vega-Gonzalez was told bySaldana and the detention center that Saldana's son would be released to Saldana's custody once judgment was rendered in the underlying case. Vega-Gonzalez further testified that Saldana was very concerned for her son and was "in a desperate state." Vega-Gonzalez testified that she explained to Saldana what a judgment meant, what the plea of guilty meant, and her other options. She recalls that Saldana wanted a resolution the same day in order to obtain custody of her son. Vega-Gonzalez stated that she explained to Saldana all of her rights and the deportation consequences of her plea. According to Vega-Gonzalez, Saldana's primary objective was getting her son out of the detention center that same day. Vega-Gonzalez testified that she reviewed the statute under which Saldana was being charged to determine if Saldana's actions were within the confines of injury to a child by omission, and she was able to determine they were. Furthermore, Vega-Gonzalez testified that Saldana's objective to enter into a guilty plea that day was not unethical, illegal, or improper.

Saldana's then eighteen-year-old son Alan, the victim in the underlying injury to a child charge, also testified. He explained the events leading up to his injury, which was caused by his step-father hitting him when he was approximately fourteen years old. He explained that his mother brought him to a masseuse after the injury, and they told his mother that his foot was broken and that she should bring him to the hospital. He testified that his mother gave him medicine for the pain and later brought him to the hospital.

Following the hearing and additional briefing by both parties, the application for habeas corpus relief was granted on both grounds asserted by Saldana. This appeal followed.

II. HABEAS CORPUS RELIEF

The State raises three issues arguing that the granting of habeas relief was in error, contending that the habeas court erred by: (1) granting Saldana relief on actual innocence grounds; (2) finding Saldana not guilty; and (3) granting relief on the basis of ineffective assistance of counsel.

A. Standard of Review

In reviewing the habeas court's ruling on a habeas corpus application, we must review the record evidence in the light most favorable to the trial court's ruling, and we must uphold that ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We decide whether a trial court abused its discretion by determining whether the court acted without reference to any guiding rules or principles, or in other words, whether the court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). A trial court abuses its discretion when its decision lies outside of the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

B. Finding of Actual Innocence

The State argues that the trial court erred by granting Saldana relief on actual innocence grounds and finding Saldana "not guilty" as a matter of law, claiming that she did not make the proper showing that "she did not commit the offense" as "substantiated by new evidence."

1. Applicable Law

There are two types of actual-innocence claims that may be raised on an application for a post-conviction writ of habeas corpus. First, a freestanding innocence claim, also known as a Herrera-type claim, involves a substantive claim in which anapplicant asserts his bare claim of innocence based solely on newly discovered evidence. Herrera v. Collins, 506 U.S. 390, 400-01 (1993); see Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002); Ex parte Elizondo, 947 S.W.2d 202, 208 (Tex. Crim. App. 1996). A claim that a witness's recantation unquestionably establishes innocence is properly understood as a Herrera-type claim. See Franklin, 72 S.W.3d at 675. The second type of claim, a Schlup-type claim, is a "procedural claim in which applicant's claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at trial." Id. (citing Schlup v. Delo, 513 U.S. 298, 314 (1995)). In Schlup, the applicant argued that he received ineffective assistance of counsel and that the prosecution withheld evidence. Schlup, 513 U.S. at 314. Schlup's claim of innocence was "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 315.

For a Herrera-type claim, the bare claim of innocence would fail unless the court was convinced that the new facts "unquestionably establish" applicant's innocence. Id. at 317; Franklin, 72 S.W.3d at 676. However, in a Schlup-type situation, the petitioner must show only that the constitutional error "probably resulted" in the conviction of one who was actually innocent. Schlup, 513 U.S. at 326-27. Establishing entitlement to relief on an actual-innocence claim in initial post-conviction habeas proceedings requires a showing of new evidence. Franklin, 72 S.W.3d at 671.

In a Herrera-type claim, evidence is considered "newly discovered" if it was not known to the applicant at the time of the trial, plea, or post-trial motions and could not have been known to him even with the exercise of due...