Bilgnees Shah v. State

Opinion issued January 8, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00789-CR EX PARTE BILQUEES SHAH On Appeal from County Criminal Court at Law No. 14 Harris County, Texas Trial Court Cause No. 1174534 MEMORANDUM OPINION Applicant, Bilquees Shah, challenges the order denying her post-conviction application for writ of habeas corpus, which requested that the trial court grant applicant a new trial on her previous conviction for misdemeanor theft. We determine whether the county court erred in denying applicant’s application on the basis that her guilty plea was involuntary. We affirm. Background Applicant moved to Houston from Pakistan, her native country, sometime in March 1992. On April 6, 1992, applicant was arrested for shoplifting at a Fiesta store. Applicant hired Michael Njoku to represent her, and she took a friend with her to consult with Njoku. On April 13, 1992, applicant pleaded guilty to misdemeanor theft in county court without an interpreter. The trial court assessed punishment at four days in Harris County Jail, plus a $150 fine and court costs. Applicant filed her application for writ of habeas corpus on May 20, 2003. The trial court held a hearing by affidavits and denied relief. Guilty Plea In her sole point of error, applicant contends that the trial court should have granted her habeas corpus relief because she did not understand English when she pleaded guilty. This Court must employ “a deferential standard of review of the trial court’s resolution of the historical facts from conflicting affidavits.” Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002). In a misdemeanor post-conviction habeas corpus proceeding, the applicant has the burden of proof, and the standard of proof is by a preponderance of the evidence. See Meraz v. State, 950 S.W.2d 739, 741 (Tex. App.—El Paso 1997, no pet.). The trial court’s ruling in a habeas proceeding should not be overturned absent a clear abuse of discretion. See Ex parte Ayers, 921 S.W.2d 438, 440 (Tex. App.—Houston [1st Dist.] 1996, no pet.). We do not have a reporter’s record of the plea hearing, and nothing in the record provided shows that applicant requested an interpreter at the plea hearing. Unless the record shows that the defendant failed to understand the proceedings, he waives the right to complain on appeal that no interpreter was provided. See Leon v. State, 25 S.W.3d 841, 843 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Applicant argues that the trial court was aware of her inability to speak English during the plea hearing. Applicant explained in her affidavit that she had apparently answered “guilty” when the trial court initially asked her name, at which time the trial court had “looked at [applicant] with a puzzled expression and said, ‘Bilquees Shah?’” She asserted in her affidavit that she had answered “guilty” to all of the trial court’s questions because her counsel had whispered the word “guilty” in her ear when it was appropriate for her to speak. Applicant’s husband also provided an affidavit stating that applicant did not speak or understand English in 1992. Applicant contends that she has thus met her burden of proof and that she is entitled to a new trial because nothing in Njoku’s sworn affidavit contradicted applicant’s version of the events at the plea hearing. We disagree. Njoku stated in his affidavit that he “conversed directly with [applicant]” and that “[s]he spoke to [him] in English and indicated that she understood the implications of a guilty plea that [he] discussed with her” when he met with applicant prior to the plea hearing. He also asserted in the affidavit that she told him that she preferred a straight guilty plea because she wanted to dispose of the case as quickly as possible in order that other people in the community would not find out about the theft. Although Njoku’s affidavit did not refer specifically to the plea hearing, his assertions that applicant spoke to him in English and understood the implications of a guilty plea directly contradict applicant’s contentions that she was unable to speak or to understand English. In light of the fact that there was conflicting evidence about whether applicant could speak and understand English, the trial court at the habeas proceeding could have found that applicant had not needed an interpreter at the plea hearing. Cf. Oliver v. State, 32 S.W.3d 300, 305 (Tex. App.—San Antonio 2000, pet. ref’d) (asserting that trial court does not abuse its discretion in overruling a motion for new trial when faced with conflicting evidence). Even if applicant’s evidence concerning the plea hearing had been uncontradicted, the trial court would not have been required to take it as true. Cf. Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding that, in considering motion for new trial, trial court is not required to accept as true testimony of accused or any defense witness simply because it was uncontradicted). Accordingly, nothing in the record shows that the trial court abused its discretion in denying applicant’s application for writ of habeas corpus. We overrule applicant’s sole point of error. Conclusion We affirm the order of the trial court denying habeas corpus relief. Tim Taft Justice Panel consists of Justices Taft, Nuchia, and Keyes. Do not publish. Tex. R. App. P. 47.2(b).