Guerra, Ramiro

In the Court of Criminal
Appeals of Texas
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Nos. WR-95,800-01 & WR-95,800-02
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EX PARTE RAMIRO GUERRA,
Applicant

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On Applications for Writs of Habeas Corpus
In Cause Nos. W-2076419-A & W-2076421-A
In the 283rd District Court
Dallas County
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YEARY, J., filed a dissenting opinion in which SCHENCK, P.J., and
FINLEY and PARKER, JJ., joined.

In an unpublished per curiam opinion, the Court today grants
Applicant an opportunity to file an out-of-time motion for new trial
because his trial counsel failed to file the required post-conviction
pleading within the time to do so. The Court cites Ex parte Crow, 180
S.W.3d 135 (Tex. Crim. App. 2005), for the proposition that thus
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depriving Applicant altogether of a new trial proceeding constituted
both deficient performance and prejudice for purposes of establishing
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984). Majority Opinion at *2. The Court observes: “The trial
court found Applicant was deprived of an opportunity to file a motion for
new trial, which the State would have agreed to and the trial court
would have granted. We agree.” Id. at *1.
Under the facts of this case, however, there was no valid legal
basis that would have supported a trial court order granting a motion
for new trial. For that reason, counsel’s failure to file a motion for new
trial cannot possibly have prejudiced Applicant. Indeed, this whole effort
seems to me to be nothing more than a belated attempt by a prosecutor
and a judge to undo that which the law does not allow to be undone—at
least not by the method that they are trying to achieve its undoing—for
the purpose of appeasing the late-expressed desire of the victims’ family
to reduce the punishment that had already been imposed on the
defendant. I respectfully dissent.
I. BACKGROUND
Applicant was indicted for two instances of manslaughter with a
motor vehicle, and the vehicle was expressly alleged to have been a
deadly weapon. Applicant’s counsel has submitted an affidavit in which
he directs our attention to exhibits demonstrating that data recovered
from Applicant’s vehicle shows that, only 1.2 seconds before the collision
that caused the death of the victims in these cases, Applicant’s vehicle
was traveling at 122 miles per hour. Counsel also observes that the
speed of Applicant’s vehicle at that time was well over two times the
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posted speed limit of 50 miles per hour.
On January 6, 2023, pursuant to a negotiated plea agreement, 1
Applicant pled guilty to these offenses, as alleged, and was assessed
concurrent nine-year sentences. As part of the plea, he judicially
confessed that he committed the offenses with a motor vehicle, and that
the motor vehicle he used was a deadly weapon. He was therefore found
in fact to have used a deadly weapon—these were, after all, homicide
offenses. See Crumpton v. State, 301 S.W.3d 663, 665 (Tex. Crim. App.
2009) (when an indictment alleges a homicide and an applicant has been
found guilty as alleged in the indictment, this is “necessarily a finding
that a deadly weapon was used”).
According to the trial prosecutor, after the plea was completed,
both the victims’ family and Applicant’s family gathered in the hallway
outside the courtroom and prayed together in a large circle. When the
prayers had concluded, the victims’ family came back to the prosecutor’s
workroom and told him that “they did not want [Applicant] to serve [the]
time that [he] had agreed to . . . serve.” They asked the prosecutor to
undo the sentence “in any way that [he] could.”
Wishing to appease the victims’ family, the prosecutor proposed
that Applicant be allowed to “think” he was being sentenced to nine
years, but that he then be brought back to court in four months’ time so
that he could be placed on shock probation. See TEX. CODE CRIM. PROC.
art. 42A.202 (permitting the trial court, within 180 days that execution
of sentence begins, to place defendant on community supervision). The

1 The trial court prosecutor submitted an affidavit in which he stated

that, in exchange for Applicant’s plea, the prosecutor agreed to dismiss two
other charges that were then also pending against Applicant.
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prosecutor then “informed” defense counsel of his plan and asked
defense counsel to put a reminder on his calendar to prompt him to come
back in four months to request that Applicant be put on the “jail chain”
and brought back to court. The prosecutor also explained that he “asked
[defense counsel] not to let [Applicant] know [about the plan] because he
wanted [Applicant] to feel like he was going to get that nine years in
prison[,] but that [he—the prosecutor] would [ultimately] agree to
[s]hock [p]robation when the time came.” Applicant’s fiancé, Jennifer
Medina, also testified that she “found [Applicant’s counsel] in the
courthouse and informed him of the shock probation conversation.” But,
she said, Applicant’s counsel informed her at that time that “it was not
possible.”
Four months later, on May 5th, the prosecutor attempted to
remind defense counsel of the prosecutor’s shock probation plan, but he
was unable to timely contact counsel. Ms. Medina similarly “reached
back out to [Applicant’s counsel] but [she also] could not get in contact
with him.” And defense counsel ultimately did not file a motion for shock
probation.
The trial prosecutor now readily admits that he was mistaken
about what was allowed “under law[.]” Shock probation is not an
available alternative in the wake of a deadly weapon finding. TEX. CODE
CRIM. PROC. art. 42A.054(b). Because the convicting court made an
affirmative finding of the use of a deadly weapon at the time that
Applicant pled guilty, Applicant was not eligible for shock probation.
The prosecutor now admits that he had mistakenly presumed
that he “would not need to change the plea at all to make his [s]hock
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[p]robation plan work out.” But, he explains, “were [he] given the
opportunity to agree to a new trial and strike the deadly weapon
language, [he] would have done so.” The prosecutor claims that, indeed,
he would not have contested a motion for new trial. And the judge of the
convicting court has now also weighed in and indicated that she would
have granted the motion so as to permit the prosecutor’s plan for shock
probation to go forward.
In her recommended findings of fact and conclusions of law, the
convicting court judge has now declared that “[t]rial counsel’s failure to
respond to the State’s and Ms. Medina’s attempts at contact regarding
trial court relief[,] along with trial counsel’s statement that he was not
retained for an appeal[,] demonstrates that Applicant was deprived of
counsel during the motion for new trial and appeal stages.” Findings of
Fact and Conclusions of Law, at 8. The judge also found that Applicant,
through his counsel, “could have filed a motion for new trial based on
newly discovered evidence including the newly mitigating evidence
discovered from the complainants’ family post sentence.” Id. She
recommends that “in the interest of justice” we grant habeas corpus
relief, presumably (although the convicting court does not say explicitly)
because defense counsel’s deficiency forfeited Applicant’s ability to
pursue a motion for new trial that the convicting court now claims it
would have granted. 2

2
To the extent the convicting court would thus have us grant Applicant
an out-of-time motion for new trial simply “in the interest of justice,” such an
outcome would be inappropriate. This Court has repeatedly declared that to
grant a new trial “in the interest of justice,” there must be a valid legal
claim. See State v. Arizmendi, 519 S.W.3d 143, 148 (Tex. Crim. App. 2017) (“A
trial court may not grant a motion for new trial simply because it believes that
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II. ANALYSIS
The Court now, based on defense counsel’s failure to follow
through with a motion for new trial, concludes that Applicant’s counsel
performed deficiently, and that Applicant was thereby deprived of a new
trial procedure. Majority Opinion at *1−2 (citing Crow, 180 S.W.3d at
138) (holding that “deficient conduct that results in the deprivation of
an entire judicial proceeding” may satisfy Strickland’s prejudice prong).
But I strongly disagree. And I would not approve the granting an out-of-
time motion for new trial on such a remarkably contrived theory.
In the first place, the record fails to establish that defense
counsel’s performance was constitutionally deficient. To the contrary,
defense counsel seems to have been the only lawyer participating in this
case who understood the actual law and its proper application to these
unique facts. In his affidavit, filed on remand, defense counsel observes
that “[t]here were no grounds for a Motion for New Trial.” It is not at all
clear to me that he is wrong about that. Certainly nothing in the record
presented on habeas suggests that he is wrong. And other than for the
purpose of supporting the prosecutor’s proposed “plan” for shock
probation—that both the prosecutor and the trial court now say they
would have gone along with—Applicant identifies no legal ground to
support what it seems to me would have been very likely a sham motion
for new trial.
The convicting court recommends that we find that the opinion of

the defendant has received a raw deal. Granting a new trial for a ‘non-legal or
legally invalid reason is an abuse of discretion.’”) (quoting State v. Herndon,
215 S.W.3d 901, 907 (Tex. Crim. App. 2007)).
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the victim’s family with respect to the appropriate punishment to assess
within the statutory range (including whether to grant probation)
constituted “newly mitigating evidence.” See TEX. CODE CRIM. PROC. art.
40.001 (“A new trial shall be granted an accused where material
evidence favorable to the accused has been discovered since trial.”). The
relevance of the opinion of the victims’ family members with respect to
appropriate punishment within the applicable range, under Article
37.07, Section 3(a)(1), is dubious at best. TEX. CODE CRIM. PROC. art.
37.07 § 3(a)(1). 3 This Court has apparently never squarely addressed the
question, and at the very best, “[t]he law in this area is unclear.” George
E. Dix & John M. Schmolesky, 43A TEXAS PRACTICE: CRIMINAL PRACTICE
AND PROCEDURE § 46:49, at 11 (3d. ed. 2011) (Supp. 2024). Moreover, it

is doubtful that the opinion of the victims’ family should ever be

3 This provision reads:

Regardless of the plea and whether the punishment be
assessed by the judge of the jury, evidence may be offered by the
state and the defendant as to any matter the court deems
relevant to sentencing, including but not limited to the prior
criminal record of the defendant, his general reputation, his
character, and opinion regarding his character, the
circumstances of the offense for which he is being tried, and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence,
any other evidence of an extraneous crime or bad act that is
shown beyond a reasonable doubt by evidence to have been
committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously
been charged with or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. art. 37.07 § 3(a)(1). This provision does not speak
explicitly to the question whether it is within the trial court’s discretion to
consider the opinion of a victim’s family members as relevant to determining
the normative question of what punishment within the statutory range should
be imposed.
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considered as a material mitigating fact capable of trumping the
categorical judgment of the Legislature that a trial court judge may
never impose probation of any kind “when it is shown” that a deadly
weapon was used or exhibited. TEX. CODE CRIM. PROC. art. 42A.054(b).
Under this state of the law, I do not think we can fairly label defense
counsel’s performance as “deficient” for believing that no valid basis for
a motion for new trial existed.
But even if I thought defense counsel’s performance was deficient,
I would not conclude that Applicant suffered any prejudice by the
absence of a motion for new trial. Prosecutorial second thoughts about
the length of the concurrent sentences obtained, even if entertained at
the behest of the victims’ forgiving family, does not present a valid legal
basis for granting a new trial. In my view, the convicting court here
would have erred to grant a new trial in this case for the purpose of
removing the deadly weapon findings that blocked the availability of
shock probation. Entry of a deadly weapon finding into the judgment,
once that finding has been made, is a ministerial act. Ex parte Poe, 751
S.W.2d 873, 876 (Tex. Crim. App. 1988). Because actual relief on a
motion for new trial should not be available, even if the proceeding itself
might have been, I can see no basis for concluding that defense counsel’s
failure to file a motion for new trial could have served to prejudice
Applicant in any way.
I respectfully dissent.

FILED: March 12, 2025
PUBLISH