Ex Parte Heriberto Jacquez ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00401-CR
EX PARTE HERIBERTO JACQUEZ
From the 249th District Court
Johnson County, Texas
Trial Court No. F46719A
MEMORANDUM OPINION
Heriberto Jacquez appeals from the denial of a writ of habeas corpus filed
pursuant to Code of Criminal Procedure article 11.072. TEX. CODE CRIM. PROC. ANN. art.
11.072 (West 2015). Jacquez complains that he was denied due process of law because
the file-mark stamp on the State's response and the judgment denying the writ of habeas
corpus and the trial court's findings of fact and conclusions of law were filed with the
trial court clerk approximately one minute apart. Because of the time shown by the file
marks, Jacquez argues that there were improper ex parte communications between the
State and the trial court which deprived him of an impartial determination of his writ of
habeas corpus. Jacquez filed a motion for new trial but did not attach any supporting
evidence. The trial court judge recused himself from "all remaining proceedings." A new
judge was appointed, and that judge conducted a hearing on the motion for new trial,
and denied the motion based on the motion and arguments of counsel only. No reporter's
record was requested from this hearing if one was made. See TEX. R. APP. P. 31.1
(reporter's record to be prepared if requested by the appellant).
An appellate court will not address the merits of an issue on direct appeal if there
is no evidence on the record regarding the claim. "[M]ere assertions in a brief not
supported by evidence in the record will not be considered on appeal." Franklin v. State,
693 S.W.2d 420, 431 (Tex. Crim. App. 1985); Whitehead v. State, 130 S.W.3d 866, 872 (Tex.
Crim. App. 2004). The time on the file-mark stamps establish that an individual
presented them to the court clerk for filing at those times. Even if the pleadings were
properly before the trial court as evidence, the time stamps, standing alone, are no
evidence to establish that any communication, proper or improper, between the trial
court and the State took place prior to the trial court signing the order and the findings
of fact and conclusions of law.
While Jacquez did file a motion for new trial, he did not attach any supporting
evidence. Moreover, at the motion for new trial hearing before the appointed judge, the
record before this Court does not indicate that he attempted to introduce any evidence or
call any witnesses to testify regarding any alleged improper ex parte communications or
explain how the documents were filed so close together in time. Without this, the record
Ex parte Heriberto Jacquez Page 2
is insufficient to establish that a due process violation occurred. We overrule Jacquez's
sole issue.1
Because we find no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 19, 2017
Do not publish
[CR25]
1Jacquez does not complain of the trial court's denial of the writ of habeas corpus based on the merits of
the petition in this appeal. Although addressed in the State's reply brief, because the merits of the ruling
are not properly before us, we do not address them.
Ex parte Heriberto Jacquez Page 3