Ex parte Sanchez

608 S.W.3d 222

EX PARTE Oscar Minjare SANCHEZ, Jr.

NO. 01-18-00139-CR

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

Opinion issued March 31, 2020

Rehearing En Banc Denied October 13, 2020

Discretionary Review Granted February 3, 2021

OPINION ON EN BANC RECONSIDERATION

Sarah Beth Landau, Justice

We granted Oscar Minjare Sanchez, Jr.’s motion for en banc reconsideration and withdrew the opinion and judgment issued December 20, 2018. We issue this en banc opinion and judgment in their stead. Sanchez appealed from the denial of his post-conviction application for a writ of habeas corpus filed under Texas Code of Criminal Procedure art. 11.072. Sanchez, in his sole issue, contended that his trial counsel rendered ineffective assistance by failing to call exculpatory witnesses during the guilt/innocence phase of his trial. Because the habeas court's findings of fact and conclusions of law that it made in denying Sanchez a hearing on his writ are unsupported by the record, we reverse and remand for further proceedings consistent with this opinion.

BACKGROUND¹

Sanchez was the designated driver for his four passengers on a night out celebrating a friend's birthday at two bars. After closing time, he was driving the group home in his Ford F-250 on Highway 249 when a police chase appeared in front of him. An unmarked police car, a Chevy Impala driven by Harris County Sheriff's Office Lieutenant G. Goudeau, suddenly moved in front of him, causing Sanchez to swerve left to try to avoid an accident.

According to one officer who observed the Ford F-250 and the Impala from his rear-view mirror while driving 100 miles an hour and participating in a police chase, the front of Sanchez's truck collided with the back of Lieutenant Goudeau's Impala. The officer saw the rear of the Impala go up in the air before it struck the curb and spun into a nearby parking lot.

Sanchez continued home without stopping. After Lieutenant Goudeau radioed for help, Sergeant K. Benoit, who was following the chase vehicles and testified that he had seen the accident, returned to the scene, and saw that Goudeau was injured. Benoit waited with Goudeau until an ambulance transported her to the hospital, where she stayed for four days to treat severe injuries.

After hearing about the accident on the news the next morning, Tomball Police Department Captain R. Grassi, who was a passenger in the car with Sanchez, called the captain of the Harris County Sheriff's Office to share information about the incident. Sanchez was with him.

Sanchez told Deputy A. Marines that a dark-colored Impala had suddenly darted into his lane on the Highway 249 feeder road and that he hit his brakes, swerved, and entered the middle lane to avoid hitting it. Sanchez did not know where the Impala went after it entered his lane. Sanchez cooperated and answered Deputy Marines's questions and allowed him to examine the Ford F-250 twice. Deputy Marines testified that it was rare for someone to come forward and cooperate as Sanchez did.

Although Goudeau's vehicle sustained serious damage, investigation revealed only minor cosmetic damage to Sanchez's truck. Photos depicted a faint scuff mark on the bumper between the fog lamp and the tail ring, a crack on the right side of the grill, a dark plastic piece embedded in the tread of a tire, and a scuff mark on the undercarriage. The first time he inspected the truck, Marines did not see it, but the second time he returned to Sanchez's truck, he saw a bit of gray metallic paint that appeared to match the Impala but not the silver paint on Sanchez's F-250. Chemical analysis revealed that the paint could have come from Goudeau's Impala or any other vehicle with similar paint characteristics. An unknown number of vehicles have a similar paint profile.

Sanchez was charged with the third-degree felony offense of failure to stop and render aid. A jury convicted him in 2016. See Sanchez v. State , No. 01-16-00293-CR, 2017 WL 1424949, at *1 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref'd) (mem. op., not designated for publication). The State did not call any of the passengers in Sanchez's car as witnesses. The defense did not put on any witnesses.

The trial court assessed Sanchez's punishment at 10 years’ confinement but probated the sentence by placing him on 10 years’ community supervision, with 30 days’ confinement in the Harris County Jail as a condition of probation. See id. This Court affirmed Sanchez's conviction in 2017, in which he raised two issues, that the trial court erred in submitting a voluntary-intoxication charge to the jury and that the evidence was insufficient because it failed to show that he knowingly left the accident. See id. The Court of Criminal Appeals refused Sanchez's petition for discretionary review, and this Court's mandate issued.

In 2017, Sanchez applied for a writ of habeas corpus under Texas Code of Criminal Procedure article 11.072 and requested a hearing. In his application, Sanchez alleged that his trial counsel had provided ineffective assistance by failing to call necessary exculpatory witnesses. Sanchez claimed that his trial counsel should have called three of the four passengers in his truck, Captain R. Grassi, S. Martin, and B. Flores, to testify. These three witnesses provided affidavits, attached to Sanchez's application, stating that they were passengers in his truck, they saw him swerve around the car that darted out in front of them, and they were unaware of a collision. The State did not respond to Sanchez's application.

In 2018, the habeas judge, who was not the judge who had presided over the trial, signed an order denying Sanchez's habeas application without an evidentiary hearing. Sanchez timely filed notice of appeal and the habeas court certified that Sanchez had a right of appeal. Because the habeas court's order did not deny Sanchez's habeas application as frivolous and the clerk's record did not include the required findings of fact and conclusions of law, this Court abated the appeal. See TEX. CODE CRIM. PROC. art. 11.072, § 7(a).

The Habeas Court's Findings of Fact and Conclusions of Law

In response to the order abating the appeal, the trial court filed a supplemental clerk's record, which included the habeas court's findings of fact and conclusions of law. The pertinent findings of fact and conclusions of law, proposed by the State and signed by the habeas court, are:

FINDINGS OF FACT

....

5. The applicant claims trial counsel failed to present evidence from Captain [R.] Grassi, [S.] Martin, and [B.] Flores during the applicant's trial.

6. The applicant claims that these witnesses would have testified that they were passengers in the applicant's vehicle and that they were not aware of the applicant's vehicle colliding with the complainant's vehicle.

7. The trial court finds that trial counsel did not call any witnesses in his case-in-chief during the guilt[/]innocence phase of the applicant's trial.

8. The trial court finds, based on the reporter's record, that trial counsel's cross[-]examination of Deputy [R.] Musil elicited testimony that Grassi, Martin, and Flores all made consistent statements to law enforcement about what happened....

....

11. The trial court finds that the applicant fails to show that trial counsel was deficient.

12. The trial court finds that the applicant fails to establish a reasonable probability that the result of the proceeding would have been different had these witnesses been called to testify at the applicant's trial.

CONCLUSIONS OF LAW

....

3. The applicant fails to show that Grassi, Martin, and Flores were available and that their testimony would have benefited the defense. SeeKing v. State , 649 S.W.2d 42 (Tex. Crim. App. 1983) ; [ E]x parte Flores , 387 S.W.3d 626, 638 (Tex. Crim. App. 2012) (the applicant must still show that "some benefit" establishes a reasonable probability that the result of the proceeding would have been different, i.e., one sufficient to undermine confidence in the outcome).

....

5. In all things, the applicant has failed to demonstrate that he was denied the effective assistance of counsel.

Accordingly, the instant application is DENIED.

After this Court reinstated the case and requested briefing, both Sanchez and the State filed briefs, and Sanchez filed a reply. See TEX. R. APP. P. 31.1.

DISCUSSION

A. Standard of review

Under Article 11.072, when a person applies for habeas corpus relief, "the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision." TEX. CODE CRIM. PROC. art. 11.072, § 2(b). Because Sanchez challenges the validity of the conviction which placed him on community supervision for a 10-year period, we have jurisdiction to review the denial of his habeas application. See id. § 8 ("If the application is denied in whole or part, the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate Procedure.").

Generally, an appellate court reviews a trial court's decision to grant or deny habeas corpus relief for an abuse of discretion. See Ex parte Zantos-Cuebas , 429 S.W.3d 83, 87 (Tex. App.—Houston [1st Dist.] 2014, no pet.). We view the evidence in the light most favorable to the trial court's ruling. See Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We will uphold the habeas court's judgment as long as it is correct under any theory of law applicable to the case. See Ex parte Taylor , 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam). But if, as here, the habeas judge was not the trial judge and there was no evidentiary hearing, the judge is not in an appreciably better position than the reviewing court to resolve the matter. Thus, a de novo review is appropriate. See Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999) (the generally applied abuse-of-discretion standard is not appropriate "when...