## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

N O
. P D

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E x p a r t e J U A N C A R L O S R E Y E S , A p p e l l e e

O N A P P E L L E E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E E I G H T H C O U R T O F A P P E A L S

E L P A S O C O U N T Y

K E L L E R , P
. J
. , d e l i v e r e d t h e o p i n i o n o f t h e u n a n i m o u s C o u r t .

I n a habea s application attacking a judgme nt that imposed community supervision, appellee
raised five g rounds. Evidence supporting all of these g rounds was submitt ed in either aff idavit form

or throug h witnesses at a live hear ing. The trial court g rante d relief on the first g round and did not
addre ss the rema ining four g rounds. Holding that the trial court err ed in g ranting relief on the first

g round, the cour

t of appe als reve rsed the tr ial court’s judg ment and rende red judgme nt r einstating
the g uilty plea. We conclude that the court of ap p ea l s s h ould have rema nded the case to the trial

court to re solve appe llee’s remaining claims. Consequently , we r ever se the judg ment of the c ourt of appe als and re mand the ca se to the trial cour t for fur ther proc eeding s.REYES — 2
I. BACKG ROUND Appellee was char g ed with family -violence assault. Pursuant to an ag ree ment, he pled g uilty
and was place d on community supervision. I n a habea s application under Article 11.072, appellee 1
attacke d the community

- s u p e r v ision judgme nt on five g rounds. I n his first g round, he contende d that
his tria l attorney

failed to infor

m him—in violation of Padilla — that the judgme nt w ould subje ct 2
him to deporta tion. I n his rema ining g rounds, appellee conte n d ed t h at h is trial attorney was 3
ineffe ctive for failing to adequa tely investiga te the case , that the attorney was ineffe ctive for failing

to a dvise appellee reg arding the law of self-de fense , that appellee ’s g uilty plea wa s not knowingly and intentionally

made, a nd that appellee was a ctually innocent of the offe nse. 4

T E X

. C O D E C R I M

. P R O C . art. 11.072. 1 Padilla v. Kentucky , 559 U.S. 356 (2010). 2
This g round rea ds: “Tria l counsel’s failure to inform Applicant Rey es that a g uilty plea to 3 the Class ‘ A’ assault/family violence char g e would subject him to removal fr om the United States deprive d him of eff

ective assistance of counsel beca use this o m i s s i o n on the part of trial counsel cause d Rey es to enter

into a g uilty

plea whic h was not knowing ly and voluntarily

made.” These g rounds re ad as f

ollows: 4
2. Trial counsel’s failure to conduct an independe nt investiga tion of the fac ts of the case deprive d Rey es of eff ective assistance of counsel since at least three witnesses to the assault could have prov i d ed testimony establishing that it was Hilda Maldonado who assaulted Rey es and that Rey es’ conduct was justified under the law of self de fense

. 3. Trial counsel’s failure to advise Rey es conce rni n g t h e l aw of “self defe nse” deprive d Rey es o f effective assistance of counsel since Rey es would not have otherwise ple d g uilty

to the Class “A” a ssault char g e.
4. Applicant’s g uilty plea should be vacated and s et as i d e beca use it was not knowing ly

and intentionally

made.
5. Applicant R ey es i s actua lly innocent of the C lass “A” assault/famil y o ff en s e o fREYES — 3

I n support of his application, appellee filed sever al aff idavits, including his own. I n his own aff idavit, appellee stated that his attorney made no attempt to asce rtain appellee ’s version of the fac ts
reg arding the i ncident upon which the assault charg e was based. Appellee claimed tha t h e woul d
have told his attorney that the complainant was the ag g ressor, th at s h e s lapped him sever al t imes,
and that he mere ly pushed her out of the way in order to esca pe her assault. He also claimed that his
attorney failed to infor

m him that bodil y injury was an element of assault and fa iled to expl ain the
law of self-de fense . Appellee claimed that if these laws had been ex plained to him, he would not
have pled g uilty

. Appellee also claimed that his attorney failed to explain that a plea of g uilty to the
assault offe nse would subject him to remova l from the United States.
A hear ing was held at whi ch witnesses testified and the attorney s for the parties made

arg uments. One of the witnesses testified to be ing prese nt during the alterc ation betwee n appellee
and the complainant and backe d up appellee ’s side of the story

. Other witnesses testified that they

wer e in the g ener al vicinity , that the complainant seeme d to be the ag g ressor, and that appellee was
a pea cef ul person.
Nea r the end of the hear ing, the trial court stated that it would have to r eview the proposed
fi n dings of fac t and conclusions of law from both sides, make a deter mination, and su b m i t an opinion a nd order

. The trial court further stated, “I don’t think I ’m g oing to adopt, lock, stock and
barr el, either side’s findings of fact.” When asked by defe nse counsel about t he actual-innoce nce issue, the trial cour

t stated:
I don’t think I can, ba sed on that finding , make a n actua l innocence finding

.

which he w as convic ted in this cause.REYES — 4
* * * My understanding of actua l innocenc e—ag ain, not having thoroug hly rese arc hed it, y ou need rock- solid conclusive proof, like clea r DNA evidenc e that shows it was not this guy ; it was somebody else.
* * * I mean, the State still has the opportunity to bring in the arr esting office r or bring in the victim or bring in a

ny body else. And I ’m not pr epar ed to sa y , at this point, that I can make an absolute—there is no issue of actua l innocenc e finding

. I don’t think I can. But I will—I ’ll consider both sides’ proposals, and I will try to g et an order out probably in the next few day s. The trial court g rante d relief on the Padilla claim and issued favor able finding s of fac t a nd

conc l u s i o n s of law with respe ct to that claim. I n its conclusions of law, the trial court stated that
Padilla applied retroa ctively

. The finding s of fac t and conclusions of law did not addre ss appellee ’s
other c laims, and the trial cour t did not otherwise purport to rule on those claims.
The S tate appealed. I n a mot ion to abate , filed on J anuar y 30, 2013, the S tate complaine d
that the trial court’s finding s and conclusions on the Padilla issue wer e inadequa te. On Fe bruar y 14, 2013, the cour

t of appe als g rante d the State’s motion and abated the appea l for further findings of
fac t and conclusions of l aw. T h e trial court made additional finding s of fact on the Padilla claim
that wer e favor able to appellee , but it made one unfavor able conclusion of law: I n light of Chaidez

v. United States , handed down on Fe bruar y 20, 2013, the trial court rec onsidered its ear lier 5
conclusion that Padilla applied retroa ctively and observe d that the Supreme Court held that Padilla did not apply

retroa ctively

in a federa l felony conviction case. Howeve r, t he trial court expressed

no conclusion i n th e supplemental findings as t o the ul timate dispositi on of t he case, and the case

was re turned to the c ourt of appe als.

133 S. Ct . 1103 (2013). 5REYES — 5

Rely ing on Chaidez

and Ex parte De Los Reyes , the court of appe als held that Padilla did 6

not apply retroa ctively , and, as a result, appellee was not entitled to relief on the Padilla claim. I n 7 passi n g, t h e co urt of appea ls observe d that, while the trial court made finding s of fac t that could ostensibly support appellee ’s non- Padilla claims, the trial court did not rely upon any non- Padilla 8 theory of law to support its ruling g ranting appellee relief

. I n a footnote, th e co u rt o f appea ls 9
declined appellee ’s invitation to rema nd the case to the trial court to allow for further development
of the re cord be cause appellee was g iven “a meaning ful opportunity at two hear ings to develop an
evidentiar y rec ord to support his claim of ineffe ctive assistance of counsel.” Consequently , the 1 0

court of appea ls reve rsed the trial court’s order of relief and rende red judgme nt reinstating appellee ’s

g uilty plea. 1 1
II. ANALYSIS
We have held that an appellate court “is not require d to addre s s issues that become moot
beca use of the resolution of other issues.” Simi larly , in the context of Articles 11.07 and 11.071, 1 2 1 3

392 S.W .3d 675 (Tex. Crim. App. 2013). 6
Ex parte Rey es , No. 08-12-00261- CR, slip op. at 6-8, 2014 Tex. App. L EXI S 7086 at *8- 7 13 (Tex. App.–El Paso J une 30, 2014) ( not desig nated f or publication).
Id. , slip op. at 8, 2014 Tex. App. L EXI S 7086 at *11-12 (“We do not dispute that the trial 8 court made additional finding s of fac t that could ostensibly support Rey es’s claims he was actua lly innocent and he rec eived ineffe ctive assistance beca use his counsel failed to conduct an independe nt investiga tion and inform him of the law of self-de fense .”).
Id. , slip op. at 8, 2014 Tex. App. L EXI S 7086 at *12. 9
Id. , slip. op. at 9 n.5, 2014 Tex. App. L EXI S 7086 at *13-14 n.5. 1 0
Id. , slip. op. at 9, 2014 Tex. App. L EXI S 7086 at *13. 1 1
Morales v. State , 357 S.W .3d 1, 8 n
. 2 7 (T ex
. Crim. App. 2011); Karanev v. State , 281 1 2 S.W .3d 428, 434 n.53 (Tex. Crim. App. 2009); State v. Plambec k , 182 S.W .3d 365, 367 n.10 (Tex.REYES — 6

this Court has held that it may decline to addre ss an issue that did not need to be addre ssed beca use of the dispositi on of another issue. Article 11.072 provides that the “trial court shall enter a written 1 4
order g ranting or deny ing t h e relief soug ht in the application” and that the written order shall 1 5 “includ[e] finding s of fac t a nd conclusions of law ” unless the a pplication is denied as f

rivolous. 1 6
This lang uag e does not expli citly require a trial court that g rants relief to addre ss ever y possible basis for doing so, and we think that the principle that a c ourt may decline to addre ss issues that are not

nece ssary to the court’s disposi tion applies equally to the Article 11.072 habea s context, in which
the trial court is tasked with disposing of the habea s applica t ion. So, when an Article 11.072 1 7
habea s applicant advanc es multipl e issues that would entitle him to relief , the trial court may limit

Crim. App. 2005).
T E X

. C O D E C R I M

. P R O C . arts. 11.07, 11.071. 1 3
See Ex parte Ove rton , 444 S.W .3d 632, 641 (Tex. Cr i m
. App. 2014) (“B eca use we are 1 4 g ranting relief on Applicant’s first claim of ineffe ctive assistance of counsel, there is no need for us to addre ss the second issue of whether the State failed to disclose exculpatory evidenc e.”) ; Ex parte Chabot , 300 S.W .3d 768, 769 n.3 (Tex. Crim. App. 2009) (“The applicant also reque sted relief under the due-c ourse- of-law provision in Article I , Section 13 of the Texas Constit ution, as well as ‘re lated statutes.’ Due to our dispositi on of the applicant’ s claim under the United States Constit ution, we do not addre ss his state-law claims.”); Ex parte Varelas , 45 S.W .3d 627, 629 n.1 (Tex. Crim. App. 2001) (“A

pplicant als o as s er ts that his trial counsel was ineffe ctive for failing to challeng e the admissibili ty of statements taken in violation of the Vienna Convention. Be cause we g rant applicant a new trial based on the dispositi on of the jury in s t ru ct i on issue, it is unnece ssary to addre ss the merits of his Vienna Conve ntion claim.”).
T E X

. C O D E C R I M

. P R O C . art. 11.072, § 6(a ). 1 5
Id. § 7(a)

. 1 6
See Ex parte Garcia , 353 S.W .3d 785, 787-88 (Tex. Crim. App. 2011) (Unlike in Article 1 7 11.07 and 11.071 proce eding s, in Article 11.072 proce eding s, the trial court is the sole finder of fac t, an d t h e courts of appea ls and this Court preside over such proce eding s only in an appellat e capa city .).REYES — 7

its g rant of relief to only one of the issues, as long as the court does not neg lect an issue that would
result in g rea ter relief than the one addre ssed. Although it may not se em so here , this rule serve s 1 8
the principle of judicial economy by allowing a court to g rant relief on a claim when entitlement to
relief is obvious without having to spend time and resour ces resol v i n g m ore difficult claims that,
even if decide d in the habea s applicant’s f avor, w ould affor d him no gr eate r re lief. Consequently , when the trial court g rante d appellee rel i ef on the Padilla claim, it was not require d to addre ss appellee ’s other ineffe ct iv e - a s s is ta n c e - o f-c ounsel claims. A decla ration of actua l
i n n o ce n ce , beca

use of its impact on a defe ndant’s reputa tion, aff ords g rea ter relief than mere l y
g ranting a new trial, so in the usual case , we might decide that appellee forf eited his actua l-innocenc e claim by fai l i n g t o p ursue it in the trial court. But beca use we have not, befor e now, expli citly
labeled a ctual-innoc ence relief as a g rea ter form of relief t han a new trial, we do not fault the tria l

court and the parties for failing to dispose of this claim at the time relief was g rante d on the Padilla
claim. And when the court of appea ls later abate d the case on the S t at e’ s motion for further

1 9 finding s and conclusions on the Padilla claim, the appellate court still had jurisdiction of the case , since it was on appea l from a g rant of relief , and the abate ment appea

red to have been for the limit ed

purpo s e o f addre ssing the asser tions in the State’s motion. Appellee did not forf eit his claims by

See Benavide

z v. Stat e , 323 S.W .3d 179, 182-83 ( T ex
. Crim. App. 2010) (An appellant 1 8 who has e stablished a claim of trial err or is still e ntitled to appellate consideration of a suff iciency of the e vidence claim bec ause the relief for suc h a cla im is gre ater than for a

claim of trial e rror .). Appellee sug g ested t o t he trial court that his actua l-innocenc e claim would result in 1 9 barr ing a retria l, but we have g rante d only new trials in connec tion with such claims. See Ex parte Calderon , 309 S.W .3d 64, 71 (Tex. Crim. App. 2010) (applican t re manded to the custody of the sheriff to answer

the cha rg es ag ainst him); Ex parte Thompson , 153 S.W .3d 416, 421 (Tex. Crim. App. 2005) (same) ; Ex parte Tuley , 109 S.W .3d 388, 397 (Tex. Crim. App. 2002) (same) ; Ex parte Elizondo , 947 S.W .2d 202, 210 (Tex. Crim. App. 1996) (same)

.REYES — 8

failing to pursue them at that time, and the trial court did not err by failing to add re s s cl ai m s t hat

wer e outside the State’s motion. 2 0 Having deter

mined that the t rial co u rt er re d in its resolution of t he Padilla claim, t he case

must be remanded f

or the trial c ourt to consider a ppellee’ s other claims that the t rial court did not
resolve. The State contends that the trial court impliedly resolved appellee ’s other claims ag ainst

2 1 him, but we see not h i ng in the record to support that contention. Although the State points to the

actua l-innocenc e discussion betwee n defe nse counsel and the trial court, that discussion shows only

t h at t he trial court thought it unlikely that it would rule in appellee ’s favor on that claim. T h e discussion is not i nconsistent with the trial court late r dec iding to re solve only the Padilla claim.
Be ca use the trial court did not resolve all of appellee ’s claims, and those claims wer e n o t waived, the court of appea ls err ed in rende ring judgme nt. The appellate court should have rema nded
the case to the trial court for further proce eding s. Whether those further proce eding s involve mere ly

See LaPointe v. State , 225 S.W .3d 513, 523 (Tex. Crim. App. 2007) (“F inally , we addre ss 2 0 appellant’ s contention reg arding how the hear ing [pursuant to abate ment] was conducte d. Def ense counsel’s que stions reg arding child custody , the vi ctim’s alcohol use, and whethe r the victim was taking medication for bipolar di sorder wer e not inquiries into the vi ctim’s past sexual hist o ry and did not fall wi t h i n t h e t rial court' s order at trial prohibiting questioning by defe nse counsel.

. . . Those questions there fore fell outside the scope of the court of appea ls’s rema nd order , and the trial court did not err

to exclude them.”).
See Davison v. State , 405 S.W .3d 682, 691 (Tex. Crim. App. 2013) (“O rdi n ar i l y , we 2 1 would re m an d a ca u s e to the lower appellate court when our reje ction of its basis for dispositi on g ives rise to another ‘issue [t hat was] raised and [now become s] nece ssary to final dispositi on of the appea l[ ,] b u t wh i ch the court of appea ls has not alre ady addre ssed.”) (bra ckets in orig inal); Benav idez , 323 S.W .3d at 182 n.19 (“When an appellate court reve rses a conviction on the basis of trial err or without r eac hing other points of err or in an appea l, it ha s decide d ever y issue ‘nec essar

y to final dispositi on of the appea l’ for purposes of T E X

. R. A P P

. P. 47.1—unless, of course , this Court should happen to re verse the court of appea ls's reve rsal on discretionar y revie w. I n that event, it is nece ssary to rema

nd the cause to the lower court for dispositi on of any rema ining points of err or the resolution of which a

re ‘ nece ssary

to final dispositi on of the a ppeal.’ ”).REYES — 9

additional fac t finding s or al s o involve further development of the record is a determination to be
made by the trial court, at least in the first instance. We reverse the judgme nt of the court of 2 2

appea ls and rema

nd the ca se to the trial cour t for fur ther proc eeding s consistent with this opi nion.
Deliver ed: Novembe r 4, 2015 Publis h

See supra n. 17.

2 2