PD-1039-20 02/03/2021
“Did the First Court of Appeals err by acting as factfinder in appellant’s 11.072 habeas proceeding? Unlike the Court of Criminal Appeals in an Article 11.07 writ, the 1st Court of Appeals’ role in an Article 11.072 writ is purely that of an appellate court. Consequently, the question before the appellate court was not whether to accept or reject the trial court’s findings, but whether the trial court abused its discretion in denying relief.”
Sanchez was convicted of failure to stop and render aid following a collision between his truck and an unmarked police car involved in a hot pursuit on the same highway. His sentenced was probated and he appealed. After it was affirmed and the mandate issued, he applied for a writ of habeas corpus under Tex. Code Crim. Proc. art. 11.072. Sanchez alleged ineffective assistance of counsel for the failure to call three of his passengers at trial. Each passenger submitted an affidavit the gist of which was their unawareness of any collision. The habeas judge, different from the one who presided over trial, denied relief without a hearing. It issued findings and conclusions. It found that the witnesses would have been unavailable and that the substance of their affidavits was elicited from trial witnesses, and concluded that their testimony would not have benefitted the defense. There was no evidence of (or finding regarding) defense counsel’s reasoning for his decision.
The court of appeals reversed. Although it acknowledged that review is typically for abuse of discretion, it determined de novo review was appropriate because the habeas judge was not the trial judge and held no hearing. It concluded that one witness was available and would have been of some benefit without being cumulative. Because it related to the central issue—Sanchez’s awareness of a collision—the court of appeals found a reasonable probability the result would have been different. However, it acknowledged that there may have been a strategic reason for not calling that witness and so apparently remanded for further proceedings on that issue. The court rejected the dissent’s argument that it was Sanchez’s obligation to address strategy. The dissent also took issue with the majority’s use of a de novo standard of review.
The State argues the court of appeals mistook its sole role under Art. 11.072, which is to act as an appellate court rather than a finder of fact. Unlike the Court of Criminal Appeals in an Art. 11.07 writ proceeding, the court of appeals in an Art. 11.072 case is not the ultimate fact-finder and has no discretion to remand for further fact-finding or grant relief. All it can do is determine whether the habeas court abused its discretion viewing the record in the light most favorable to the ruling. And, because the court of appeals acknowledged there could have been a reasonable trial strategy, it was required to affirm the habeas court’s denial of relief.
