Ex Parte: Samuel Taylor Hardwick--Appeal from County Court at Law of Nacogdoches County

NO. 12-07-00288-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE

EX PARTE

SAMUEL TAYLOR HARDWICK COUNTY COURT AT LAW OF

NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Samuel Taylor Hardwick appeals from the trial court s denial of relief on his application for writ of habeas corpus. In three issues, Appellant argues that the trial court should have granted relief because he received ineffective assistance of counsel. We affirm.

Background

Appellant was nineteen years old when he pleaded guilty to the misdemeanor offense of driving while intoxicated. He was represented by counsel. Appellant s grandmother called him the day after the plea and was surprised to learn that he had pleaded guilty to driving while intoxicated. She went to Appellant s counsel s office, spoke with him at length about the situation, and left with the instruction, essentially, for counsel to undo the guilty plea.

As part of his plea of guilty, Appellant had waived his right to appeal. Appellant s counsel did not think there were reasonable grounds to seek a new trial, but he filed a motion for new trial and used it as a mechanism to approach the county attorney to try to renegotiate the plea. He sought to renegotiate the resolution of the case, but no agreement was reached. Appellant s counsel wrote a letter to the court requesting a hearing on the motion for new trial, but no hearing was held, and the motion was overruled by operation of law.

After engaging new counsel, Appellant filed an application for writ of habeas corpus. In the application he alleged that his plea was not entered freely and voluntarily, that he received ineffective assistance of counsel, and that the evidence was insufficient to support the conviction. The trial court held a hearing on the application and denied relief. This appeal followed.

Voluntariness of Guilty Plea

In three issues, Appellant argues that counsel did not provide effective assistance prior to the plea rendering his guilty plea involuntary, and that counsel did not provide effective assistance following the guilty plea.

Applicable Law and Standard of Review

A person convicted of a misdemeanor offense may attack the validity of the conviction by habeas corpus if he is confined or restrained as a result of a misdemeanor conviction, or is no longer confined, but still subject to collateral legal consequences resulting from the conviction. See Tex. Code Crim. Proc. Ann. arts. 11.09, 11.21, 11.22 (Vernon Supp. 2007); Ex parte McCullough, 966 S.W.2d 529, 531-32 (Tex. Crim. App. 1998).

To prevail on a claim of ineffective assistance of counsel, Appellant must prove both that he received objectively deficient representation and that he was prejudiced by the representation. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Ex parte McFarland, 163 S.W.3d 743, 753 (Tex. Crim. App. 2005). In assessing counsel s performance, we look to see if counsel was acting as a reasonably competent attorney under the circumstances. McFarland, 163 S.W.3d at 754. An appellant has the burden of proof and must overcome a strong presumption that counsel s performance fell within the wide range of reasonable professional assistance and that his attorney made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Id.

To prove prejudice, an appellant must demonstrate that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id. at 754. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

A guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one s accusers, and the right not to incriminate oneself. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006), cert. denied, Knaitt v. Texas, __ U.S. __, 127 S. Ct. 667, 166 L. Ed. 2d 514 (2006)(citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969)). Accordingly, a guilty plea, to be consistent with due process of law, must be entered knowingly, intelligently, and voluntarily. Knaitt, 206 S.W.3d at 664. To be voluntary, a guilty plea must be the expression of the defendant s own free will and must not be induced by threats, misrepresentations, or improper promises. Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970).

An applicant seeking habeas corpus relief on the basis of an involuntary guilty plea must prove his claim by a preponderance of the evidence. Ex parte Morrow, 952 S.W.2d 530, 535 (Tex. Crim. App. 1997); Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995). An appellate court reviewing a trial court s ruling on a habeas claim must review the record evidence in the light most favorable to the trial court s ruling and must uphold that ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). We also afford deference to a trial court s ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id.

Analysis

In his first two issues, Appellant argues that his plea was involuntary because his attorney told him, prior to the plea, that if he were convicted his punishment would be twice as great as the proffered plea agreement and that he would not be acquitted at trial. Appellant argues that this advice was wrong, that it was ineffective assistance of counsel, and that it rendered his guilty plea

involuntary.

Appellant was sentenced, pursuant to a plea agreement, to 180 days in jail, suspended for a period of one year of community supervision and a fine of $1,000. Counsel had told him that this punishment was fifty percent less than he would get if he was found guilty. Whether this statement is precisely accurate is a question for reasonable disagreement, but the term of community supervision is half of the maximum, as is the fine; and Appellant did not serve any time in jail despite a statutory requirement that he serve at least 72 hours in jail, nor did he suffer any additional suspension of his license. See Tex. Penal Code Ann. 12.22, 49.04(b) (Vernon Supp. 2007); Tex. Code Crim. Proc. Ann. art. 42.12 3(c) (Vernon Supp. 2007). And the punishment is roughly fifty percent less than the maximum suspended sentence Appellant could have received. Appellant s attorney was giving his advice about the case, and no contrary evidence was offered about what other punishment was regularly assessed or could be expected for this kind of offense. According to the limited evidence adduced at the hearing, a police officer observed Appellant strike another vehicle with his own and immediately arrested him. At the hearing, Appellant admitted that he had been drinking, although he denied that he had been impaired.

This case, and the advice rendered, differs strikingly from the advice found to be deficient in, Ex parte Burns, 601 S.W.2d 370 (Tex. Crim. App. 1980), the principal case cited by Appellant. In that case, counsel advised the defendant to plead guilty and to accept a life sentence to avoid the death penalty. Id. at 372. The death penalty was not available as a punishment in 1973 when the defendant pleaded guilty, and the court of criminal appeals held that counsel s erroneous advice rendered the plea involuntary. In this case, by contrast, the trial court concluded that counsel made a reasonably accurate assessment of the case and his communication of that assessment along with the recitation of rights given to Appellant were sufficient for his plea to be voluntary. This is principally a mixed question of fact and law, and we hold that the trial court s conclusion was not an abuse of discretion. We overrule Appellant s first and second issues.

In his third issue, Appellant argues that his attorney was ineffective because he did not present the motion for new trial and because he did not file a notice of appeal or discuss his options with respect to an appeal. On this issue, evidence is lacking as to any prejudice that accrued to Appellant. The voluntariness of a guilty plea may not be appealed in a plea bargain case. See Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001) ( When we actually consider the issue of whether voluntariness of a guilty plea may be raised on appeal from a plea-bargained, felony conviction, we find that the answer must be that it may not. ). And a hearing on the motion for new trial would have allowed no more of a hearing than Appellant was afforded on his application for habeas corpus. Appellant has identified no claims that were forfeited and no meritorious claims that could have been brought. Therefore, he suffered no prejudice, and the trial court did not abuse its discretion when it did not order relief on this ground. We overrule Appellant s third issue.

Disposition

Having overruled Appellant s three issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered January 31, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)