Opinion issued August 2 , 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 15 - 00973 - CR

——————————— EX PARTE CARLOS ALEX ANDER AGUILAR , Appella nt

On Appeal from the 339th District Court

Harris County, Texas Trial Court Ca se No. 1248496 - A

OPINION Carlos Alexander Aguilar appeals from the denial of his post

- conviction application for writ of habeas corpus, complaining that the trial court abused its discretion by not holding a n evidentiary hearing on his application

.2 Background Aguilar, who was born in El Salvador, was residing in the United States under temporary protected status (TPS). In 2010, Aguilar was charged with the offense of aggravated sexual assault of a child by having sexual intercourse with a 13

- year - old girl when he was 18 years old

. See T EX
. P ENAL C ODE A NN
. § 22.021(b) (West Supp. 2015). He eventually pleaded guilty to the offense of indecen t exposure to a child 1 and received deferred adjudication community supervision

. Aguilar filed an a pplication for writ of habeas corpus, asserting that his trial counsel was ineffective for failing to advise him of the potential immigration

c onsequences for pleading guilty and for advising him against go ing to trial. Attached to the application were t w o affidavits : (1) an immigration attorney, Bianca Santorini, who averred that Aguilar had not been properly admonished about the immigration consequences , and that if he had, he might have sought a jury trial or a better plea; and (2) the complainant in t he underlying criminal case, who averred that she was never interviewe d questioned by Aguilar’s attorney or the District Attorney

. The hearing date on the application was reset until October 8, 2015. According to the affidavit of Aguilar’s counsel, he ap peared on October 8 for the hearing with a number of witnesses, but was advised that the trial court had

1 See T EX
. P ENAL C ODE A NN
. § 21.11(a) (West 2011).3

denied the application and no hearing would be held. Aguilar’s counsel maintains that when he approached the bench to insist that he be permitted to p resent his evidence, the trial court responded that he could appeal the ruling. Aguilar filed a motion for new trial , claiming the trial court violated hi s right to due process and abused its discretion by not advising counsel that the trial court would n ot hear live testimony. Counsel attached to the motion for new trial the affidavits of the witnesses he had planned to call at the hearing , including (1) defense counsel, Shawn Rudisel, who represented him in the aggravated sexual assault case ; (2) Liseth Arevalo, the complainant; (3) Bianca Santorini, an immigration attorney ; ( 4 ) Aguilar; ( 5 ) Aguilar’s mother ; ( 6 ) Aguilar’s brother; and ( 7 ) DaSean A. Jones, the attorney who filed the habeas application. None of the witnesses , other than his defense counsel, stated that they were present during all of the conversations with his attorney or when the trial court accepted his plea. Standard of Review The denial of Aguilar’s application for writ of habeas corpus is one within the trial court ’ s discretion and may be overturned only if we find the trial court abused its discretion. See Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The generally

- applied abuse of discretion standard is not appropriate “when the decision does not turn on the cr edibility or demeanor of witnesses.” Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). Statutory construction is4

a question of law that we review de novo. Spence v. State , 325 S.W.3d 646, 650 (Tex. Crim . App. 2010). Analysis Aguilar challenges the trial court’s refusal to hold a hearing as an abuse of discretion and a violat ion of his right of due process. The State responds that Aguilar’s complaint s were not preserved for review because Aguilar did not obtain a ruling on his request for a hearing and object to the ruling. See Lovill v. State , 319 S.W.3d 687, 691

– 92 (Tex. Crim. App. 2009) ( stating that to preserve complaint, record must show specific and t imely complaint and trial court ruling on complaint); Ex parte Luciw , No. 03

– 08

– 00445

– CR, 2009 WL 5150018, at *3 (Tex. App.

— Austin Dec. 31, 2009, no pet.) (mem. op., not designated for publication) (h o ld ing error not preserved because record contained no r equest for trial court hearing). The record contains no request for a hearing and no ruling denying a request. A trial court is not required to hold a hearing. Article 11.072 delineate s the process for habeas applications when an applicant seeks relief from a judgment of conviction that orders community supervision, as occurred here. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 11.072 § 1. The relevant provisions are:

(a) Not later than the 60th day after the day on which the state’s answer is filed, the trial cou rt shall enter a written order granting or denying the relief sought in the application.5 (b) In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing and may rely on the court’s personal recollection. Id. at art. 11.072 § 6. Although Aguilar claims he was entitled to a n evidentiary hearing, article 11.072 does not require the trial court to hold a ny hearing

— let alone an evidentiary hearing

—

before rendering its decision. See Ex parte Franklin , 310 S.W.3d 918 , 922

– 23 (Tex. App.

— Beaumont 2010, no pet.) (holding that trial court is not required to hold oral hearing when determining whether to deny habeas application alleging ineffective assistance of counsel); see also Ex parte Godinez , No. 10

– 13

– 00063

– CR, 2014 WL 98816, at *2 (Tex. App.

— Waco Jan. 9, 2014, pet. ref’d) (mem. op., not designated for publication) ( stating that article 11.072 does not require court to hold evidentiary hearing). The trial court may consider affidavits attached to an application as e vidence without a hearing. See Ex parte Cummins , 169 S.W.3d 752, 757 (Tex. App.

— Fort Worth 2005, no pet.). Because the statute does not require a hearing, the trial court’s decision to rule based on the submitted affidavits did not violate Aguilar’ s due process rights

. See In re Pesina , No. 07

– 15

– 00380

– CR, 2016 WL 383845, at *2 (Tex. App.

— Amarillo Jan. 27, 2016) (mem. op., not designated for publication) (article 11.072 provides variety of ways for court to reach decision and no due process violation shown simply because trial court held no evidentiary hearing); Ex6

parte Hollowell , No. 03

– 11

– 00240

– CR, 2012 WL 1959309, at *6

– 7 (Tex. App.

— Austin June 1, 2012) (overruling due process challenge because article 11.072 does not require a hearing), pet. ref’d , 392 S.W.3d 661 (Tex. Crim. App. 2013). Aguilar also c ontends the trial court violated the Code of Judicial Conduct. Canon 3(B)(8) provides: “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the ri ght to be heard according to law.” Tex. Code Jud. Conduct, Canon 3(B)(8), reprinted in T EX
. G OV ’ T C ODE A NN
. , tit. 2, subtit. G., app. B (West 2013). Because article 11.072 does not require a trial court to hold a hearing on an application for writ of hab eas corpus, the trial court did not violat e the Code of Judicial Conduct. Finally, Aguilar claims the trial court violated the Code of Judicial Conduct by having ex parte communications with the State. See Tex. Code Jud. Conduct, Canon 3(B)(8), reprinte d in T EX
. G OV ’ T C ODE A NN
. , tit. 2, subtit. G., app. B. Aguilar contends the State was given notice of the trial court’s intent to have a hearing by affidavit rather than by live testimony, but he was not. Aguilar , however, presents no proof of ex parte co mmunications and no evidence of ongoing bias or prejudice toward Aguilar. Conclusion Because Aguilar has not shown the trial court abus ed its discretion, we affirm the trial court’s judgment.7 Harvey Brown Justice

Panel consists of Justic es Keyes, Brown, and Huddle. P ublish. T EX
. R. A PP
. P. 47.2(b).