Arreola v. State

• Citation: 207 S.W.3d 387
• Decision Date: 03 August 2006
• Docket Number: No. 01-05-00287-CR.,No. 01-05-00320-CR.,No. 01-05-00288-CR.,01-05-00287-CR.,01-05-00288-CR.,01-05-00320-CR.
• Parties: Jose Salomon ARREOLA, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

207 S.W.3d 387

Jose Salomon ARREOLA, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-00287-CR.

No. 01-05-00288-CR.

No. 01-05-00320-CR.

Court of Appeals of Texas, Houston (1st Dist.).

August 3, 2006.

Jose Salomon Arreola, Lovelady, TX, pro se.

Mark W. Bennett, Bennett & Bennett, Houston, TX, for Appellant.

John J. Harrity, III, Assistant District Attorney-Fort Bend County, Richmond, TX, for Appellee.

Panel consists of Justices KEYES, ALCALA, and BLAND.

OPINION

ELSA ALCALA, Justice.

Appellant, Jose Salomon Arreola, appeals from a judgment of conviction for the first-degree felony of aggravated sexual assault¹ and the second-degree felony of indecency with a child.² See TEX. PEN. CODE ANN. § 22.021 (Vernon Supp.2005) (aggravated sexual assault); id. § 21.11 (Vernon 2003) (indecency with a child). In addition, appellant appeals from the trial court's denial of his application for a writ of habeas corpus.³ Appellant's sole issue in each appeal challenges the voluntariness of his guilty plea. We conclude that the trial court did not err by denying appellant's application for writ of habeas corpus because appellant did not meet his burden of proving that his plea was involuntarily entered. We also conclude that appellant may not challenge the voluntariness of his original guilty plea in the direct appeals of the trial court's judgment that adjudicated his guilt. We therefore affirm the judgment of conviction and the order denying habeas corpus relief.

Procedural Background

In February 2002, appellant pleaded guilty to two counts of an indictment that charged him with aggravated sexual assault and indecency with a child by contact. The trial court admonished appellant about the consequences of entering his plea of guilty, accepted his pleas of guilty, and sentenced him to 10 years' deferred adjudication community supervision in February 2002. Appellant did not appeal the trial court's order that placed him on deferred adjudication. In July 2003, the State filed motions to adjudicate guilt, which asserted that appellant had violated conditions of his community supervision by committing a criminal offense.

In response to the State's motion to adjudicate guilt, appellant filed an application for writ of habeas corpus, alleging that his guilty plea in February 2002 was involuntary because his counsel at the time rendered ineffective assistance by misinforming appellant of the consequences of his guilty plea. The trial court held an evidentiary hearing on appellant's application for writ of habeas corpus and denied it.

Following the denial of the application, appellant pleaded true to the allegations in the motions to adjudicate guilt. The trial court accepted appellant's pleas of true and, after having heard evidence and argument on the issue of punishment, assessed appellant's punishment at 20 years in prison and a $10,000 fine for the aggravated sexual assault and at five years in prison and a $2,000 fine for the indecency with a child, with the sentences to run consecutively.

The Direct Appeals

In the two direct appeals, appellant challenges his original plea of guilty that resulted in the trial court's order that placed him on deferred adjudication community supervision. A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication is first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999). The record shows that appellant did not appeal the trial court's order that deferred the adjudication of his guilt and, therefore, failed to challenge the voluntariness of his original plea of guilty when deferred adjudication community supervision was imposed. We hold that appellant cannot challenge the voluntariness of his original pleas of guilty after the trial court has adjudicated his guilt. See id. We, therefore, dismiss the appellant's direct appeals in cause numbers 01-05-00288-CR and 01-05-00320-CR for want of jurisdiction.

The Appeal from the Denial of a Writ of Habeas Corpus

Jurisdiction

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 (Vernon 2005). The code provides that at "the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision." Id., art. 11.072, § 2(b) (Vernon 2005). "In making its determination, the trial court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the trial court's personal recollection." Id., art. 11.072, § 6(b) (Vernon 2005). The trial court "shall enter a written order including findings of fact and conclusions of law." Id., art. 11.072, § 7 (Vernon 2005). If the trial court denies the application "in whole or in part, the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate Procedure."⁴ Id., art. 11.072, § 8 (Vernon 2005).

Appellant's application for writ of habeas corpus, which was filed while appellant was on community supervision, challenges the trial court's order that deferred the adjudication of his guilt by asserting that his pleas of guilty were involuntarily entered. See id., art. 11.072, § 2(b). Appellant's application for writ of habeas corpus was thus a pre-conviction application, the denial of which intermediate courts of appeals have jurisdiction to review. See Kniatt v. State, 206 S.W.3d 657 (Tex.Crim.App.2006) (holding that court of appeals had jurisdiction to hear pre-conviction application for writ of habeas corpus that was filed by applicant while applicant was on deferred adjudication community supervision even though trial court did not rule on application until after applicant was adjudicated guilty). We, therefore, hold that we have jurisdiction over appellant's appeal from the denial of his application for a writ of habeas corpus.

Voluntariness of Original Guilty Plea

In his application for writ of habeas corpus, appellant asserts that his pleas of guilty were involuntary because his trial counsel erroneously informed him (1) that his community supervision could be terminated after two or three years, (2) that his record could be expunged, and (3) that he would have to register as a sex offender only for the duration of his community supervision.

In reviewing a trial court's decision to grant or to deny habeas corpus relief, an appellate court reviews the facts in the light most favorable to the trial court's ruling and upholds that ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003). An appellate court should give almost total deference to a trial court's determination of historical facts that are dependent upon an evaluation of credibility and demeanor. Id. A trial court may accept or reject all or part of the testimony of any witness. Id. at 819 n. 68.

A record that indicates that the trial court properly admonished the defendant presents a prima facie showing that the guilty plea was made voluntarily and knowingly. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998); Soto v. State, 837 S.W.2d 401, 405 (Tex. App.-Dallas 1992, no pet.). When the record presents a prima facie showing that the plea was voluntary and knowing, the burden shifts to the defendant to show that he entered the plea without understanding the consequences. Edwards v. State, 921 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1996, no pet.). An accused who attests when he enters his plea of guilty that he understands the nature of his plea and that it is voluntary has a heavy burden on appeal to show that his plea was involuntary. Id.; Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). The defendant's uncorroborated testimony that he was misinformed by counsel is not sufficient to show that his plea was involuntary. Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).

A guilty plea is not voluntary if made as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App.1980). To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel's performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different but for the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The first prong of the Strickland test requires that the defendant show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that trial counsel's representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim. App.2002). The second prong requires that the defendant show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812. Under the first prong, however, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, and the record must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

In the context of a claim that the defendant's plea is involuntary due to...