Ex parte Nugent

• Decision Date: 21 November 2019
• Docket Number: NO. 01-18-00144-CR,01-18-00144-CR
• Citation: 593 S.W.3d 416
• Parties: EX PARTE Richard Lawrence NUGENT
• Court: Texas Court of Appeals

593 S.W.3d 416

EX PARTE Richard Lawrence NUGENT

NO. 01-18-00144-CR

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

Opinion issued November 21, 2019

Rehearing Denied January 16, 2020

David A. Schulman, 1801 East 51^st St., Ste 365474, Austin, Texas 78723, for Appellant.

Kim Ogg, District Attorney, Harris County, Texas, Melissa H. Stryker, 1201 Franklin, St., Ste. 600, Houston, Texas 77002, for State.

Panel consists of Justices Keyes, Goodman, and Countiss.

Gordon Goodman, Justice In June 2005, appellant, Richard Lawrence Nugent, pleaded guilty without an agreed punishment recommendation to the first-degree felony offense of theft, in an aggregate amount in excess of $200,000.00. See TEX. PENAL CODE §§ 31.01(1)(D), 31.03(a), (e)(7), 31.09.¹ The trial court assessed punishment at ten years' confinement but suspended the sentence and placed Nugent on ten years' community supervision. In April 2015, Nugent filed an application for writ of habeas corpus under Article 11.072 of the Texas Code of Criminal Procedure, asserting that (1) he received ineffective assistance of counsel, (2) counsel was so ineffective as to render his guilty plea involuntary, and (3) newly discovered evidence establishes his innocence. Following a hearing in May 2016, the trial court denied relief in July 2016. Nugent attempted an appeal but our Court dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely. In January 2018, the trial court granted Nugent's request for an out-of-time appeal of the habeas denial. We affirm the trial court's order denying habeas relief.

Background

The facts leading up to Nugent's guilty plea in the underlying case have been summarized in our decision in Nugent v. State , No. 01-05-00775-CR, 2006 WL 2893429 (Tex. App.—Houston [1st Dist.] Oct. 12, 2006, pet. ref'd) (mem. op., not designated for publication). Between July 2002 and May 2004, Nugent engaged in a real estate scheme with codefendant Craig Davidson. Id. at *1. Nugent and Davidson typically located apparently abandoned residential real property owned by unsuspecting third parties. Id. They then would file a false tax deed purporting to convey title to the property to themselves, or to one of their various aliases, in an attempt to obtain color of title for purposes of the Texas adverse possession statute, and would take temporary control of the property. Id. Next, using a special warranty deed, they purported to convey what appeared to be fee simple ownership of the property to an unsuspecting buyer, in exchange for money or a promise to pay money. Id. On their face, the deeds generally appeared to convey full title to the buyers, but a careful reading revealed that the deeds disclaimed any warranty; at most, the deeds conveyed Nugent's or Davidson's "interest" in an unmatured adverse possession claim. Id.

After an investigation, the State determined that Nugent and Davidson committed theft against the legitimate property owners as well as against the people to whom Nugent and Davidson then sold the properties—by deceiving the purchasers into believing that they were buying outright ownership of the premises, rather than merely unperfected adverse-possession interests in the properties.² In February 2005, the State charged Nugent and Davidson with the first-degree felony offense of aggregate theft by deception in an amount exceeding $200,000.00. See TEX. PENAL CODE §§ 31.01(1)(D), 31.03(a), (e)(7), 31.09. The indictments listed forty-seven separate complainants—twenty-four complainants were the rightful owners of the properties Nugent and Davidson claimed to adversely possess, and twenty-three complainants were purchasers of Nugent and Davidson's claimed interest in the properties.

In April 2005, Nugent pleaded guilty without an agreed punishment recommendation to the first-degree felony offense of theft in an aggregate amount in excess of $200,000.00. Following Nugent's guilty plea, the trial court ordered the preparation of a pre-sentence investigation ("PSI") report. At Nugent's sentencing hearing in June 2005, the State presented testimony of three victims of Nugent's crime; each testified to the losses he or she personally had sustained. At the conclusion of the hearing, the trial court assessed punishment at ten years' confinement but suspended the sentence and placed Nugent on a ten-year term of community supervision with conditions, including a condition requiring payment of restitution to the complaining witnesses. Nugent was represented by his retained attorney, Ken Mingledorff, during his guilty plea and the sentencing.

Nugent appealed, solely challenging the amount of restitution ordered as a condition of his community supervision. See Nugent v. State , 2006 WL 2893429, at *2. Our court affirmed the judgment but modified the restitution order to reflect the trial court's oral pronouncement. See id. at *3–4.

A. The Trial Court's Denial of Nugent's Habeas Application

In April 2015, Nugent filed an application for habeas relief under Article 11.072 seeking to vacate the judgment on the grounds that (1) Nugent received ineffective assistance of counsel because he pled guilty to acts that do not constitute an offense; (2) the advice of Nugent's trial counsel was so deficient as to render Nugent's guilty plea involuntary; and (3) newly discovered evidence establishes that Nugent is actually innocent of theft, as charged. Following a hearing on May 31, 2016, the trial court denied Nugent's request for habeas relief in a written order dated July 25, 2016.

The trial court's order denying habeas relief included findings of fact and conclusions of law. Among other things, the trial court included the following findings of fact:

10. The Court recalled the testimony of the witnesses during the PSI hearing on June 24, 2005 as well as the testimony from a Motion to Adjudicate Hearing, which occurred in July 2009. That Motion was dismissed on July 23, 2009 after the Court denied the Motion.

11. Based on the Court's prior experience as well as recollection of the PSI hearing, the Court is familiar with attorney Ken Mingledorff and his abilities. The Court reviewed an affidavit written by Ken Mingledorff, which was included as an exhibit in the Respondent's Answer. In that affidavit, Mr. Mingledorff discussed his strategy in terms of having Nugent plead guilty and his presentation of witnesses and evidence at the PSI hearing.

12. The Court finds that the affidavit submitted by Mr. Ken Mingledorff is credible and the facts asserted therein to be true.

13. From both the PSI and the Motion to Adjudicate, the Court recalled the testimony of real estate law experts for both sides regarding adverse possession.

The trial court also made the following conclusions of law:

1. The Applicant failed to prove by a preponderance of the evidence that Mingledorff's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) ; Narvaiz v. State , 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (citing Strickland v. Washington , 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) ).

2. The totality of the representation afforded the applicant was sufficient to protect his right to reasonably effective assistance of counsel in the primary case.

3. The Applicant's actions constituted a criminal offense, namely Aggregate Theft, as opposed to adverse possession.

4. The Applicant's plea was made voluntarily, knowingly and intelligently. Attorney Mingledorff's advice to Applicant was not so ineffective as to render Applicant's guilty plea involuntary.

5. The Applicant failed to prove, by a preponderance of the evidence, that there is newly discovered evidence of the applicant's innocence and that, by clear and convincing evidence, despite the evidence of guilt that supports the conviction, no reasonable juror could have found applicant guilty in light of the alleged new evidence. Ex parte Brown , 205 S.W.3d at 545 ; Ex parte Elizondo , 947 S.W.2d 202, 206 (Tex. Crim. App. 1996) ; Ex parte Richardson , 70 S.W.3d 865, 870 (Tex. Crim. App. 2002) (applicant bears burden of proving, by preponderance of evidence, facts that would entitle him to relief).

6. In all things, the Applicant has failed to demonstrate that his conviction was improperly obtained.

B. Nugent's Appeal from the Denial of Habeas Relief

Nugent filed a notice of appeal on November 2, 2016 attempting to appeal the denial of habeas relief. Acknowledging that the notice of appeal was untimely, Nugent filed a motion requesting that our Court grant an out-of-time appeal. Because our Court lacked authority to grant the request for an out-of-time appeal, we denied the motion and dismissed the appeal for lack of jurisdiction. See Ex parte Nugent , No. 01-16-00903-CR, 2017 WL 117323, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 12, 2017, pet. ref'd) (per curiam) (mem. op., not designated for publication). The trial court ordered Nugent's community supervision unsatisfactorily terminated in 2017.

Nugent later filed an application for writ of habeas corpus with the trial court seeking an out-of-time appeal. The trial court granted Nugent's request for an out-of-time appeal on January 19, 2018.

On February 19, 2018, Nugent filed a notice of appeal from the trial court's July 25, 2016 order denying his original writ application. On appeal, Nugent argues that the trial court abused its discretion in denying his original application for a writ of habeas corpus because trial counsel provided ineffective assistance of counsel.

Jurisdiction

Article 11.072 of the Texas Code of Criminal Procedure 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 of community supervision. TEX. CODE. CRIM. PROC. art. 11.072, § 1....