Ex Parte Ruben Rodriguez Campos v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

EX PARTE RUBEN RODRIGUEZ § No. 08-24-00221-CR
CAMPOS,
§ Appeal from the
Appellant.
§ 109th Judicial District Court

§ of Winkler County, Texas

§ (TC# 4125-A)

MEMORANDUM OPINION

Appellant, Ruben Rodriguez Campos, appeals from the denial of his application for writ

of habeas corpus in which he challenged the validity of an October 2001 Order of Deferred

Adjudication: Placement on Community Supervision (the deferred judgment). In his application,

Appellant contended he received ineffective assistance of counsel when he entered his guilty plea.

On appeal, Appellant maintains the trial court erred in denying his application because he did not

receive the appropriate admonishments and was the victim of ineffective assistance of counsel. He

also asserts the State did not timely file its response to his application and therefore waived its

right to object to the writ. Because we conclude the trial court did not abuse its discretion in

determining that Campos was not entitled to habeas relief, we affirm.
I. PROCEDURAL BACKGROUND 1

In October 2001, pursuant to a plea agreement, Appellant pleaded guilty to the second-

degree felony of sexual assault. Appellant was represented by his attorney, Edward Garza.

However, Luis Alonso Chavez, an attorney who worked with Garza, appeared at the plea hearing

on Appellant’s behalf. On October 1, 2001, the trial court signed the deferred judgment placing

Appellant on probation for two years and assessing court costs. The deferred judgment stated, in

part, that Appellant “was admonished by the Court of the consequences of said plea[.]” About two

years later, the trial court signed an order that (1) set aside the deferred judgment and (2) dismissed

the indictment. 2

On January 23, 2024, Appellant filed an application for writ of habeas corpus challenging

the validity of the deferred judgment. In his application, Appellant briefly mentioned the correct

punishment range, but he did not specifically assert trial counsel was ineffective based on counsel

allegedly misinforming him about the punishment range. Instead, Appellant’s application asserted

trial counsel was ineffective because counsel failed to inform him that he would be required to

register as a sex offender under Chapter 62 and that he would be subject to such registration for

the remainder of his life.

On February 27, 2024, the State filed a motion asking the trial court to order Garza to file

an affidavit addressing Appellant’s claims on or before March 15, 2024, and to grant an extension

of 30 days for the State to file its answer. One day later, the trial court ordered Garza to file his

1
Additional facts necessary for disposition of Appellant’s issues are recited in the relevant analysis of each issue
below.
2
“On expiration of a period of deferred adjudication community supervision imposed under this subchapter, if the
judge has not proceeded to an adjudication of guilt, the judge shall dismiss the proceedings against the defendant and
discharge the defendant.” Tex. Code Crim. Proc. Ann. art. 42A.111(a).

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affidavit no later than March 15, 2024, granted the State’s request for an extension, and set a

hearing for May 8, 2024. On April 9, 2024, Chavez filed his affidavit. A few days later, Garza

filed his affidavit. The State filed its response on March 28, 2024.

On June 19, 2024, the trial court commenced a hearing on Appellant’s application. The

same day, the court signed an order that denied the application and contained findings of fact and

conclusions of law. The trial court did not make any finding or conclusion regarding whether

counsel was ineffective because he misinformed Appellant about the punishment range. Regarding

whether counsel informed Appellant about the registration requirements, the trial court concluded

as follows:

Applicant failed to show that trial court’s [sic] representation fell below the range
of competence demanded of attorneys in criminal cases. Trial counsel’s affidavit
states that in his normal practice, he would advise a client on the registration
requirements based on the type of offense Applicant was charged with, despite not
being able to recollect if he in fact discussed the registration requirement with
Applicant.

Applicant failed to prove that trial counsel’s failure to advise him of lifetime sex
offender registration would have resulted in him going to trial instead of taking the
plea. Applicant did not provide credible evidence to show that he would of [sic]
rejected the plea had he known of the sex offender requirement and that plea
rejection would have been rational in the circumstances of the case. Trial counsel’s
affidavit states that trial preparation had commenced and the Applicant had rejected
any type of plea where he would serve prison time. Trial counsel states that when
the prosecutor made the offer of two years deferred adjudication, the defendant was
happy to accept the offer as was he.

Appellant timely appealed.

II. ISSUES ON APPEAL

On appeal, Appellant raises three issues: (1) he was the victim of ineffective assistance of

counsel; (2) he failed to receive the appropriate admonishments and that constituted ineffective

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assistance of counsel; and (3) the State failed to timely file its response to Appellant’s application

for writ of habeas corpus. We address Issues One and Two together, followed by Issue Three.

III. INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends he was denied effective assistance of counsel for two reasons. First,

Appellant asserts trial counsel told him that the punishment range, if he went to trial, was five to

20 years. According to Appellant, counsel was ineffective because the correct punishment range

for a second-degree sexual assault is two to 20 years. On appeal, Appellant argues the incorrect

punishment range was “a major factor in deterring [him] from pursuing a trial” and he relied on

this erroneous advice in deciding to enter a guilty plea and “avoid this nonexistent punishment.”

Second, Appellant asserts counsel failed to ensure he received the proper admonishments, which

included an admonishment regarding the requirement to register as a sex offender.

A. Relevant law

(1) Application for writ of habeas corpus

Appellant, who completed a term of community supervision, filed his application pursuant

to Texas Code of Criminal Procedure Article 11.072. Article 11.072 “establishes the procedures

for an application for a writ of habeas corpus in a felony or misdemeanor case in which the

applicant seeks relief from an order or a judgment of conviction ordering community supervision.”

Tex. Code Crim. Proc. Ann. art. 11.072 § 1. “We review a trial court’s ruling on an Article 11.072

application for an abuse of discretion.” Ex parte Salazar, 510 S.W.3d 619, 625 (Tex. App.—El

Paso 2016, pet. ref’d). We review the evidence in the light most favorable to the trial court’s ruling,

and we uphold that ruling absent an abuse of discretion. Ex parte Becciu, 615 S.W.3d 482, 491

(Tex. App.—Houston [1st Dist.] 2020, no pet.).

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In an Article 11.072 habeas case, the trial judge is the sole finder of fact. Ex parte Sanchez,

625 S.W.3d 139, 144 (Tex. Crim. App. 2021); Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim.

App. 2011). “Findings of historical fact made at the trial level are still given deference on appeal

even when the findings are based solely on affidavits.” Sanchez, 625 S.W.3d at 144; see also Ex

parte Orozco, No. 08-17-00127-CR, 2018 WL 6629695, at *4 (Tex. App.—El Paso Dec. 19, 2018,

pet. ref’d) (not designated for publication) (“we afford almost total deference to the trial court’s

findings of fact that are supported by the record, especially when the trial court’s fact findings are

based upon an evaluation of credibility and demeanor”). “[W]e review de novo the trial court’s

resolution of mixed questions of law and fact that do not turn on witness credibility and its

resolution of pure questions of law.” Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017);

Orozco, 2018 WL 6629695, at *4.

(2) Ineffective assistance of counsel

“An applicant for a post-conviction writ of habeas corpus bears the burden of proving his

claim by a preponderance of the evidence.” Ex Parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App.

2016). To demonstrate that he is entitled to post-conviction relief based on ineffective assistance

of counsel, an applicant must demonstrate that (1) counsel’s performance was deficient because it

fell below an objective standard of reasonableness, and (2) the applicant was prejudiced because

of counsel’s errors and, but for those errors, there is a reasonable probability of a different outcome.

Strickland v. Washington, 466 U.S. 668, 687, 693 (1984). “There is a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance, and any finding

of deficient performance must be firmly founded in the record.” Ex parte Covarrubias, 665 S.W.3d

605, 610 (Tex. Crim. App. 2023).

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(3) Sex offender registration requirements

Chapter 62 of the Texas Code of Criminal Procedure “defines the scope of Texas’s sex

offender registration program and delineates the legal duties of those who administer it and those

subject to its requirements.” Crabtree v. State, 389 S.W.3d 820, 825 (Tex. Crim. App. 2012).

Under Chapter 62, a person with a “reportable conviction” 3 must register with “the local law

enforcement authority in any municipality [or county] where the person resides or intends to reside

for more than seven days.” Tex. Code Crim. Proc. Ann. art. 62.051(a). “[T]he duty to register for

a person ends when the person dies if the person has a reportable conviction or adjudication[.]” Id.

art. 62.101(a).

(4) Admonishments

Prior to accepting a plea of guilty, the court shall admonish the defendant of, among other

things, “the range of the punishment attached to the offense” and “the fact that the defendant will

be required to meet the registration requirements of Chapter 62, if the defendant is convicted of or

placed on deferred adjudication for an offense for which a person is subject to registration under

that chapter[.]” Tex. Code Crim. Proc. Ann. art. 26.13(a)(1), (5).

B. Background

At the hearing on Appellant’s application, the trial court heard testimony from Appellant

and Chavez and had before it, among other pleadings, Garza’s affidavit. 4 The court also took

judicial notice of its file.

3
Article 62.001(5)(A) defines “reportable conviction” to include sexual assault, the offense for which Appellant was
convicted. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(a).
4
When the State informed the court and Appellant’s counsel that it was offering in evidence its response along with
all exhibits, including Garza’s affidavit, Appellant’s attorney said he objected to the State’s response, but he did not
object “to the independent filing of” Garza’s affidavit.

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Chavez testified he was Appellant’s attorney for the plea hearing in 2001. Because he was

not the lead attorney on the case, he believed Garza worked on the terms of the plea agreement

with the State. Chavez testified that Garza would have dealt specifically with Appellant about

“anything leading up to the actual day of the plea.” Although he could not recall discussing with

Garza either the terms of the plea agreement or the Chapter 62 registration requirements, he

believed that was probably what happened. He said he could state what he normally would have

done in a plea deal. Chavez “vaguely remember[ed] an issue” regarding “the duration, maybe, of

the [registration] requirement as to whether it dropped off after ten years and whether it was ten

years from the date of the plea, ten years from when he had finished the probation, or lifetime.”

Chavez stated that in 2001, he “was well-aware of what Chapter 62 requirements were and what

cases they were applicable to.” He thought the conversation regarding the Chapter 62 registration

requirements was with a probation officer. He had no recollection of whether the trial court

admonished Appellant about the registration requirements.

When asked how he normally would have handled a plea deal such as Appellant’s, Chavez

responded:

. . . I would have gone over, in this instance, the ramification of the plea in that even
though you’re entering a plea of guilty and you’re not being found guilty, you’re
not being convicted, it’s still a conviction in the way of immigration purposes, and
cancellation might have come up in that regard. . . . Normally, I would have then
described the requirement of having to register[.]

He added that he could not see why he would not have done the same in Appellant’s case.

He admitted he could not specifically remember “word-for-word” what he spoke about with

Appellant as they went through the paperwork, but he would “normally” “definitely have

mentioned . . . the requirement and the length of time and how unfair it is, because for the rest of

your life not updating your phone number could subject you to a felony offense.”

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Appellant testified that between the time he retained Garza and the time his case went to

trial, he spoke with Garza nine or ten times. He stated they discussed the strengths and weaknesses

of his defense, as well as the advantages and disadvantages of a jury trial. Appellant said Garza

told him that he had “a good case to win” but he could get “5 years in prison or maybe 20.”

Appellant stated that this punishment range did not discourage him from going to trial. He said

Garza also told him the advantages and disadvantages of a plea agreement and that there was a

possibility of a two-year probation if he agreed to a plea. Appellant testified that if he had been

told he had to register under Chapter 62, he would not have accepted a plea agreement and he

would have told his attorney he wanted to go to trial. He testified that neither Garza, Chavez, nor

the prosecutor mentioned the Chapter 62 registration requirements to him. But he could not

remember whether the judge told him about the requirements.

Appellant said Chavez told him about the immigration consequences of a plea. He said that

after the plea hearing, the probation department told him he would have to register for up to ten

years, but about three months later, he was told the registration was for life. He said he tried to

reach out to Garza about the registration requirement, but Garza never responded.

The trial court also had before it Garza’s affidavit. In his affidavit, Garza stated the original

plea offer was for five years, but later the State offered two years’ probation. He remembered that

both he and Appellant were happy with the new deal and Appellant was “anxious” to accept it. As

to whether he discussed the Chapter 62 registration requirements with Appellant, he had no

specific recollection of doing so, but “[i]n the normal manner of discussing [a] plea with a

defendant regarding sexual assault, [he] would have discussed this issue as a matter of habit or

course.” At the end of the hearing, the trial court took the matter under advisement. The trial court

later denied Appellant’s application.

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C. Punishment range

Appellant first asserts trial counsel was ineffective because counsel told him he could

receive five to 20 years in prison if he went to trial, which was an incorrect punishment range. 5

Appellant contends he relied on this incorrect information in deciding to enter a guilty plea. On

appeal, the State asserts this Court should not consider Appellant’s arguments regarding his trial

counsel’s mistaken advice about the applicable punishment range because Appellant did not raise

that argument in his writ or at the trial court level. We agree that Appellant did not expressly

articulate this as a basis for his ineffective-assistance claim. Nevertheless, an ineffective-assistance

claim may be raised for the first time on appeal. Paz v. State, No. 08-23-00296-CR, 2024 WL

3544615, at *5 (Tex. App.—El Paso July 25, 2024, no pet.) (mem. op., not designated for

publication) (citing Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000)); Pacheco v.

State, No. 08-11-00237-CR, 2012 WL 6629778, at *2 n.2 (Tex. App.—El Paso Dec. 19, 2012, no

pet.) (not designated for publication). However, even when reviewed for the first time on appeal,

complaints of ineffective-assistance still must be firmly founded in the record. See Pacheco, 2012

WL 6629778, at *2. We conclude the record does not support Appellant’s complaint.

When asked about the weakness of his defense, Appellant said he was told he could get

five to 20 years. However, contrary to his contention on appeal that this incorrect punishment range

“was a major factor in deterring” him from going to trial, at the hearing on his application he said

the punishment range did not discourage him from going to trial. Furthermore, during closing

arguments, Appellant’s counsel did not assert trial counsel was ineffective because he allegedly

incorrectly informed Appellant about the punishment range. The entire focus of counsel’s closing

5
The correct punishment range for second-degree sexual assault is two to 20 years. Tex. Penal Code Ann.
§§ 22.011(a)(1), (f); 12.33(a).

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argument was on the alleged failure to inform Appellant about the Chapter 62 registration

requirements.

On this record, we conclude that Appellant failed to prove by a preponderance of the

evidence that his attorneys’ performance was deficient under the first prong of the Strickland test.

D. Admonishments

Next, Appellant contends he did not receive the Chapter 62 admonishments. We first note

that the deferred judgment, which states as follows, appears to contradict Appellant’s claim:

Thereupon, the Defendant was admonished by the Court of the consequences of
said plea, and, it appearing to the Court that the Defendant was competent to stand
trial and that the Defendant was not influenced in making said plea by any
consideration of fear or by any persuasion prompting a confession of guilty, the
free and voluntary plea of guilty was received by the Court and is now entered of
record in the minutes of the Court as the plea of the Defendant. (emphasis added).

As to whether trial counsel failed to admonish Appellant about the Chapter 62 registration

requirements, we conclude the record does not support this complaint. In Ex parte Bowman, the

appellant argued in his writ application that trial counsel did not conduct an adequate preliminary

investigation before deciding not to impeach an officer with his payroll records for the purpose of

showing the officer made unwarranted DWI arrests to earn overtime pay. 533 S.W.3d 337, 342,

350–51 (Tex. Crim. App. 2017). At the hearing on the writ, trial counsel was the only witness to

testify, and he professed—over and over—that he could not remember whether he had obtained

the officer’s overtime pay records in preparation for the appellant’s 2005 trial. Id. at 343.

The Court of Criminal Appeals decided it did not need to address the appellant’s complaint

because it concluded the record did “not bear out the convicting court’s finding that [trial counsel]

failed to obtain and review those records to begin with.” Id. at 350. The court noted that “[a]t no

point did [trial counsel] concede that he failed to obtain the officer’s payroll records prior to

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Appellant’s 2005 DWI trial” and there was no evidentiary support for the trial court’s finding that

[trial counsel] did not have those payroll records. Id. According to the court,

All [trial counsel] ever conceded at the writ hearing was that he could not presently
remember whether he had obtained those records. Several times he insisted that,
because of the passage of time, he did not know, and could not say, whether he had
obtained [the officer]’s records before Appellant’s trial. Even if the convicting court
found [trial counsel]’s memory deficit incredible, that would not provide positive
evidence that [he] failed to obtain the records. In the absence of evidence to show—
one way or the other—whether [trial counsel] had obtained the records, Appellant
cannot overcome the Strickland presumption of adequate investigative assistance.
He has failed to establish by a preponderance of the evidence the factual premise
of his claim—that [trial counsel] failed to conduct a preliminary investigation that
was sufficient to inform his decision not to impeach [the officer] more stoutly than
he chose to do at trial.

Id. at 350–51.

Similarly here, neither Garza nor Chavez could remember the specific conversations with

Appellant over 20 years earlier, but both testified about what they would have normally done under

similar circumstances. Garza averred that he would normally discuss sex offender registration

when discussing with a defendant a plea regarding sexual assault. Chavez testified that he could

not see why he would not have done with Appellant what he would “normally” do, i.e., mention

“the requirement and the length of time and how unfair it is, because for the rest of your life not

updating your phone number could subject you to a felony offense.”

We defer to the trial court’s factual findings. Absent evidence found credible by the trial

court showing that the attorneys failed to admonish Appellant about the Chapter 62 registration

requirements, Appellant cannot overcome the Strickland presumption that counsels’ conduct fell

within the wide range of reasonable professional assistance. See id. at 351; see also Reyes v. State,

557 S.W.3d 624, 637 (Tex. App.—El Paso 2017, pet. ref’d) (“The record does not reflect what

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Appellant’s trial counsel actually told him about the deletion of the deadly weapon language. That

gap in the record necessarily means that Appellant cannot meet the first Strickland test.”)

Accordingly, we conclude the record before us supports the trial court’s conclusion that

Appellant failed to show that trial counsels’ representation fell below the range of competence

demanded of attorneys in criminal cases. Because Appellant did not satisfy the first prong of the

Strickland test, the trial court did not abuse its discretion by denying Appellant’s application on

the ground that he did not receive the Chapter 62 admonishments.

We overrule Appellant’s Issues One and Two.

IV. TIMELINESS OF STATE’S RESPONSE
In Issue Three, Appellant argues that the State failed to respond to his writ application in a

timely manner and therefore waived its right to respond or object.

The State may file an answer to an application for writ of habeas corpus but is not required

to do so. Tex. Code Crim. Proc. Ann. art. 11.072 § 5(b). If the State files an answer, it may not do

so “after the 30th day after the date [the applicant serves a copy of the application], except that for

good cause the convicting court may grant the state one 30-day extension.” Id. art. 11.072 § 5(c).

Here, Appellant served his application on January 23, 2024. The first 30-day deadline was

February 23, 2024. On February 27, 2024, the State requested a 30-day extension to file its answer.

One day later, the trial court granted the State’s request for an extension, which made the State’s

response due March 28, 2024. The State filed its answer on March 28, 2024, which Appellant

contends was late based on a late request for extension.

We decline to address this issue because, even if the State’s response was untimely, the

State was not required to file a response. See id. art. 11.072 § 5(b). Furthermore, the trial court

heard testimony from Appellant and Chavez, and had before it Garza’s affidavit. Therefore, the

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trial court had the authority to deny Appellant’s application based on the evidence in the record.

See id. art. 11.072 § 6(b) (“In making its determination, the court may order affidavits, depositions,

interrogatories, or a hearing, and may rely on the court’s personal recollection.”); see also Ex Parte

Miller, No. 14-14-00862-CR, 2015 WL 9311559, at *1, 3 (Tex. App.—Houston [14th Dist.] Dec.

22, 2015, pet. ref’d) (mem. op., not designated for publication) (State’s answer was late by about

seven months; nevertheless, “the trial court had authority to deny appellant’s application as

frivolous pursuant to Article 11.072, section 7(a)” even without an answer).

V. CONCLUSION
For the foregoing reasons, we overrule Appellant’s issues on appeal and affirm the trial

court’s order denying his application for writ of habeas corpus.

LISA J. SOTO, Justice

January 27, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

(Do Not Publish)

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