John Brandon Oliver v. The State of Texas--Appeal from 39th District Court of Throckmorton County

Opinion filed February 23, 2006

In The

Eleventh Court of Appeals

__________

   No. 11-05-00229-CR

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  JOHN BRANDON OLIVER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 39th District Court

Throckmorton County, Texas

Trial Court Cause No. 1161-A-1

O P I N I O N

This is an appeal pursuant to Tex. R. App. P. 31 from the trial court=s order denying John Brandon Oliver=s petition for writ of habeas corpus filed pursuant to Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005). We affirm.

Appellant originally entered a plea of guilty to the offense of aggravated sexual assault of a child by penetrating the female sexual organ of the child with his finger. Pursuant to the plea bargain agreement, the trial court on November 30, 2004, deferred the adjudication of appellant=s guilt, placed appellant on community supervision for ten years, and imposed a $1,000 fine. On January 24, 2005, appellant filed a petition for writ of habeas corpus challenging the legal validity of the order placing him on community supervision. Article 11.072, ' 2(b). Appellant challenged the voluntariness of his guilty plea on the grounds that his trial counsel had erroneously informed him that he could be released from community supervision early and that he would only have to register as a sex offender during the time he was on community supervision.

On appeal, appellant continues to raise the voluntariness of his plea. In three points of error, appellant contends that his plea was involuntary and unknowing because his trial counsel induced his plea with erroneous advice that he would not be required to register after his community supervision had expired, because trial counsel induced his plea with erroneous advice that he could seek early release from his community supervision, and because trial counsel gave incomplete and erroneous information concerning the possible application of Texas law to a juvenile. The record before this court does not support these contentions.

At the hearing on the petition for writ of habeas corpus, both the State and appellant presented testimony. Charles Grantham, appellant=s counsel at trial, testified that he had indicated to appellant that the trial court might grant a motion to release him before the ten years had expired if he was successfully complying with the terms and conditions of his community supervision. Grantham also testified that he was unaware that, in accepting the plea bargain, the law would require lifelong registration. Grantham further stated that the written admonishments stated that appellant would have to register past the term of his community supervision, that he went through the written admonishments page by page with appellant and his parents, and that the written admonishments corrected any erroneous information he may have given appellant and his parents. Both appellant and his stepfather testified that they would not have agreed to the plea bargain if they had known that appellant would have to register after his community supervision had expired and that appellant would have to serve the entire ten years on community supervision. Appellant testified that, while he did not read most of the plea papers, he did read the admonishment as to registration. Appellant also testified that he had signed the plea papers indicating that he had read and understood the admonishments and that his plea was not influenced by any representations about registration requirements or any promises concerning early release. Ryan Peacock testified that he was employed by the 39th Judicial District Community Supervision and Corrections Department and that he supervised defendants who were placed on community supervision. Peacock stated that he told appellant=s stepfather that he had checked with the Community Justice Assistance Division and that, even on deferred, appellant would have a lifelong registration requirement.

Article 11.072, ' 6(b) provides that, in making its determination, the trial court may order a hearing and may rely on its Apersonal recollection.@ At the conclusion of the hearing, the trial court stated:

All right, on reviewing, [Defense counsel], your brief, and your case law, and the plea papers in this case and the evidence presented here today, any misstatement of terms and conditions of probation that were made, before your client executed any of these papers in which he said they weren=t done, I think he is bound by the written statements that he filed in Court, plus I recall the verbal and oral plea and it was quite clear to me at that time that he knew what he was doing in regard to this. In addition, it was pointed out that there are other things he signed here that he understands that the Court can put whatever conditions on probation or community supervision that is necessary. . . .He entered into a plea bargain and I believe he told me that it was freely and voluntarily, and willingly entered into, and he wanted me to accept that plea bargain and I did.

The trial court then denied the petition.

Pursuant to Rules 31.1 & 31.2, this appeal will be determined upon the law and the record before this court. The sole purpose is to do justice to the parties, and any incidental questions will not be considered. Rule 31.2.

The record supports the trial court=s findings that appellant freely, voluntarily, and willingly entered the plea bargain agreement. Appellant was admonished both in writing and orally in open court pursuant to Tex. Code Crim. Pro. Ann. art. 26.13 (Vernon Supp. 2005). Further, the record does not support appellant=s arguments that he was unaware of the consequences of his plea or that he was misled or harmed. Aquirre-Mata v. State, 125 S.W.3d 473 (Tex. Crim. App. 2003); see Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004). The first and second points are overruled.

The indictment alleges that the offense occurred on May 15, 2002. Almost three years later at the habeas hearing on March 10, 2005, appellant testified that he was twenty-one years old. The record before this court reflects on its face that appellant was at least eighteen years old on the date alleged in the indictment. Further, Grantham testified at the habeas hearing that he had discussed the application of juvenile law with appellant. The third point is overruled.

To the extent that appellant is challenging the effectiveness of trial counsel, those contentions are also overruled. The record does not reflect that the trial court abused its discretion by denying appellant=s petition for writ of habeas corpus. Guillory v. State, 99 S.W.3d 735 (Tex. App. - Houston [1st Dist.] 2003, pet. ref=d). The record does not support appellant=s contention that there is a reasonable probability that the result would have been different but for any possible errors on counsel=s part. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Further, the record does not reflect that there is a reasonable probability that, but for any possible error, appellant would have not pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997), cert. den=d, 525 U.S. 810 (1998).

The order is affirmed.

PER CURIAM

February 23, 2006

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.