Mosquera, Airton

In the Court of Criminal
Appeals of Texas
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No. WR-96,247-01
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EX PARTE AIRTON MOSQUERA,
Applicant

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On Application for a Writ of Habeas Corpus
Cause No. CR-20-2433-E-WHC1 in the 453rd District Court
From Hays County
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YEARY, J., delivered the opinion of the Court in which SCHENCK,
P.J., and RICHARDSON, WALKER, MCCLURE, FINLEY, and PARKER, JJ.,
joined. NEWELL and KEEL, JJ., concurred.

Applicant pled guilty to robbery and was sentenced to
confinement for ten years. Subsequently, he filed this application for a
writ of habeas corpus in the county of conviction. The district clerk
forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant raises two grounds for relief. First, he asserts that his
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plea was involuntary “because it was made with the understanding that
he would receive shock probation” upon the completion of an “initial
period of incarceration.” Second, he argues that he “was denied the
effective assistance of counsel when his attorney failed to file a motion
for shock probation.” In support of his grounds, Applicant claims that he
pled guilty with the understanding that he would receive shock
probation. According to the record before us, counsel was aware that a
post-plea filing was required to assure that Applicant would have the
opportunity to be considered for shock probation. And, still, defense
counsel failed to file the appropriate motion.
A. Applicant’s Plea Was Not Involuntary
Applicant is not entitled to relief on his first claim on habeas
because his plea was not involuntary. A plea is not retroactively
rendered involuntary when counsel fails to take a particular action only
after the plea is entered. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.
Crim. App. 1997).
In Ex parte Morrow, this Court explained the limited instances in
which relief is proper based on an involuntary plea claim premised on
an allegation of ineffective representation by a defendant’s counsel. Id.
There, the Court explained that, “[w]hen a defendant enters his plea
upon the advice of counsel and subsequently challenges the
voluntariness of that plea based on ineffective assistance of counsel, the
voluntariness of such plea depends on (1) whether counsel’s advice was
within the range of competence demanded of attorneys in criminal cases
and if not, (2) whether there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty[.]” Id. (citing Hill v.
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Lockhart, 474 U.S. 52, 56 (1985)) (emphasis added). The analysis focuses
on the competency of counsel’s advice, which is necessarily limited to
counsel’s performance prior to the plea. Notably, then, if the alleged
ineffectiveness of counsel occurs only after the plea is entered,
involuntary plea is not the proper claim to be pursued or the proper
rationale for granting relief.
Here, counsel’s plea advice and plea representation were
competent—he secured Applicant the opportunity to move for shock
probation free of the State’s opposition. The problem only arose because
counsel subsequently failed to follow through with his own obligation,
based on his own competent advice and representation, to file a motion
for shock probation. Because counsel’s advice and representation prior
to and leading up to the entry of Applicant’s plea was competent,
Applicant’s plea was not involuntary due to ineffective assistance of
counsel. 1
B. Applicant’s Counsel Was Constitutionally Ineffective
But Applicant is entitled to relief on his second claim on habeas—
that his counsel was constitutionally ineffective. Under Strickland v.
Washington, an applicant must show that counsel’s performance was
deficient and that—but for that deficient performance—there is a

1 The habeas court, in its Conclusions of Law relating to Ground One,

cites Ex parte Bittikoffer for the notion that Applicant is entitled to relief based
on an involuntary plea due to ineffective assistance of counsel. 802 S.W.2d 701
(Tex. Crim. App. 1991). But Bittikoffer did not address a claim of involuntary
plea on the basis of ineffective assistance of counsel. See id. at 702 (noting that
the attorney was not at fault for the trial court’s loss of jurisdiction). So, the
habeas court’s reliance on Bittikoffer—in the context of involuntary plea due
to ineffective assistance of counsel—is misplaced.
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“reasonable probability” that the outcome would have been different.
466 U.S. 668, 694 (1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.
Crim. App. 2005). Here, counsel was deficient for failing to file the
motion for shock probation, and but for that failure, Applicant would
have had a hearing on shock probation, which he was entitled to in
accordance with his plea bargain. 2 Cf. Miller v. State, 548 S.W.3d 497,
499 (Tex. Crim. App. 2018) (“[I]f the deficient performance might have
caused the waiver of a proceeding, the defendant’s burden is to
demonstrate a reasonable probability that the deficient performance
caused the defendant to waive a judicial proceeding that he was
otherwise entitled to have.”).
C. Applicant Is Entitled To A New Punishment Hearing
The proper relief is a new punishment hearing. 3 See Ex parte
Ulibarri, No. AP-75,773, 2007 WL 2852162, at *1 (Tex. Crim. App. Oct.
3, 2007) (per curiam) (not designated for publication) (granting
Applicant a new punishment hearing when counsel failed to present a
motion for shock probation before the trial court’s jurisdiction expired).
Habeas corpus relief is granted. Accordingly, the sentence in Cause No.

2 The convicting court goes so far as to explicitly find that it would have

granted the motion and placed Applicant on community supervision.

3 Granting an entire new trial is inappropriate because Applicant’s plea

is not involuntary, see supra Part A, so there is no need to unravel the plea.
And while an out-of-time motion for shock probation might seem like a viable
option, the trial court has unquestionably lost jurisdiction, and this Court has
never granted that form of relief. But we have granted, in similar
circumstances, a new punishment hearing, albeit in an unpublished opinion.
See Ex parte Ulibarri, No. AP-75,773, 2007 WL 2852162, at *1 (Tex. Crim. App.
Oct. 3, 2007) (per curiam) (not designated for publication) (“The sentence . . .
is vacated, and Applicant is remanded to the custody of the Sheriff of Dallas
County so that a new punishment hearing may be conducted.”).
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CR-20-2433-E-WHC1 is vacated, and Applicant is remanded to the
custody of the Sheriff of Hays County so that a new punishment hearing
may be conducted. Copies of this opinion shall be sent to the Texas
Department of Criminal Justice—Correctional Institutions Division and
Board of Pardons and Paroles.

FILED: March 5, 2025
PUBLISH