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Ex parte Navarro

Court of Criminal Appeals of Texas

January 10, 2018

EX PARTE MIGUEL ANGEL NAVARRO, Applicant

         ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 08-DCR-050238 HC2, 10-DCR-050236A HC2 IN THE 240TH DISTRICT COURT FORT BEND COUNTY

          Hervey, J., filed an opinion in which in which Keller, P.J., Keasler, Richardson, Yeary, Newell, and Keel, JJ., joined. Alcala, J., filed a dissenting opinion in which Walker, J., joined.

          OPINION

          Hervey, J.

         In Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), we agreed with the court of appeals that a juvenile court's transfer order waiving its exclusive jurisdiction is subject to legal and factual-sufficiency appellate review. The issues in this case are whether our decision in Moon is retroactive, and if so, whether the transfer order in this case was legally and factually insufficient. We do not reach those issues, however, because Navarro has failed to show that his subsequent writ applications satisfy the Article 11.07 Section 4 subsequent-writ bar of the Texas Code of Criminal Procedure.[1]As a result, we dismiss his writ applications.

         BACKGROUND

         Navarro was fifteen years old when he was charged with murder and two counts of aggravated assault. He was at a party. When the party got too large, the host told a group of people, including Navarro, to leave because he did not know them. An altercation ensued during which three people were stabbed, including the host, who died at the scene. Navarro fled in a car with his friends and returned to his home later that night. The next morning, detectives showed up at Navarro's home after they were told that he may have stabbed the people at the party. Navarro was eventually taken into custody.

         The State asked the juvenile court to waive its exclusive jurisdiction so that Navarro could be tried as an adult. The court granted the request, and Navarro was tried in district court. He was convicted of murder and one count of aggravated assault. The jury assessed punishment at ninety-nine years' imprisonment for the murder charge and twenty years' imprisonment for the aggravated assault charge. The judge ordered the sentences to run concurrently.

         Navarro filed a timely motion for new trial, which was denied, and his convictions were affirmed on appeal. Navarro v. State, Nos. 01-11-00139-CR & 00140-CR, 2012 WL 3776372 (Tex. App.-Houston [1st Dist.] Aug. 30, 2012, pet. ref'd) (mem. op., not designated for publication). Later, he filed his initial writ applications claiming ineffective assistance of counsel. Both applications were denied without written order. Ex parte Navarro, Nos. WR-82, 264-01 & -02 (Tex. Crim. App. Nov. 26, 2014). Subsequently, Navarro filed federal writ petitions, again claiming ineffective assistance of counsel, [2] but those proceedings were stayed after Navarro filed the instant subsequent writ applications.

         Navarro argues that he has satisfied the Section 4 subsequent-writ bar because the legal basis for his sufficiency claim was not recognized, nor could it have been reasonably formulated, when he filed his previously considered writ applications challenging his convictions. He also argues that the decision in Moon is retroactive and that the juvenile court's transfer order in his case was deficient because it failed to comply with our decision in Moon.[3] He further contends that he is entitled to relief because the district court never had jurisdiction over his case because the transfer order is insufficient. We filed and set these applications for submission to resolve,

(1) Whether [Navarro] may rely on this Court's opinion in Moon, and if so,
(2) Whether [Navarro] is entitled to habeas relief based on Moon.

         We do not reach the submission issues, however, because Navarro cannot overcome the subsequent-writ bar. The legal basis for his sufficiency claim was available before Moon, including when he filed his initial writ applications challenging his convictions. And even if the legal basis had not already been recognized, Navarro could have reasonably formulated his claim based on United States Supreme Court and Texas appellate court precedent.

         ARTICLE 11.07 § 4

         Subsequent writ applications challenging a final felony conviction are governed by Article 11.07 § 4 of the Texas Code of Criminal Procedure. Under that statute, a court cannot consider the merits of a subsequent application unless it contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.

Tex. Code Crim. Proc. art. 11.07 § 4(a)(1)-(2) (emphasis added).

         A legal basis for a claim is "unavailable" for purposes of subsection (a)(1) "if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of" the United States Supreme Court, a United States circuit court of appeals, or an appellate court of this state on or before the date of the applicant's previously considered application. Id. art. 11.07 § 4(b). A new factual basis for a claim is unavailable if it was not ascertainable using reasonable diligence on or before the date of the applicant's previously considered application Id. art. 11.07 § 4(c).

         STANDARD OF REVIEW

         The convicting court is the original factfinder, and we afford almost total deference to its findings of facts that are supported by the record. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014) (citing Ex parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim. App. 2012) (quoting Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008)). The same level of deference is afforded to a habeas judge's rulings on mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. at 664. However, if after an independent review of the record, we conclude that the trial judge's findings and conclusions are not supported by the record, we may exercise our authority to make contrary or alternative findings and conclusions. Id. When the issues, as in this case, are mixed questions of law and fact that does not turn on credibility and demeanor, we review the findings and conclusions de novo. Id.

         The habeas court found that,

(1) The juvenile court failed to "show its work" in its written transfer order, as required under Texas law. Tex. Fam. Code § 54.02(h); Moon v. State, 451 S.W.3d 28, 49 (Tex. Crim. App. 2014). Specifically, the juvenile court's transfer order fails to specifically state facts on which the juvenile court based its decision to waive jurisdiction. Id. at 49.
(2) Before Moon, [Navarro] could not have reasonably formulated his "show your work" instruction to courts of appeals for transfer orders based on Kent or the ...

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