Kemone Duane Rodgers v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00118-CR
EX PARTE
KEMONE DUANE RODGERS
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. C-297-W011201-1488359-AP
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MEMORANDUM OPINION 1
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Appellant Kemone Duane Rodgers appeals the trial judge’s denial of relief
on his application for a writ of habeas corpus under article 11.072 of the Texas
Code of Criminal Procedure. 2 See Tex. Code Crim. Proc. Ann. art. 11.072 (West
2015). Appellant contends that his guilty plea was not knowing, intelligent, and
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See Tex. R. App. P. 47.4.
2
The same trial judge who placed Appellant on deferred adjudication
community supervision denied his requested relief under article 11.072. For
simplicity’s sake, we use the term “trial judge” rather than “habeas judge” to refer
to that judge throughout this opinion.
voluntary because of ineffective assistance of trial counsel, and he seeks to
withdraw that plea as well as to recover court costs, see id. art. 11.50, and any
other relief to which he may be entitled. We affirm.
I. BACKGROUND FACTS
A. Appellant Pled Guilty in Exchange for Deferred Adjudication
Community Supervision.
On May 12, 2017, Appellant pled guilty to the possession of less than a
gram of the penalty group I controlled substance cocaine in exchange for two
years’ deferred adjudication community supervision and a $200 fine. His plea
paperwork provides in part:
10. Deferred Adjudication: Should the Court defer adjudicating
your guilt and place you on community supervision, upon
violation of any imposed condition, you may be arrested
and detained as provided by the law. You will then be
entitled to a hearing limited to the determination by the
Court, without a jury, whether to proceed with an
adjudication of your guilt upon the original charge. This
determination is reviewable in the same manner as a
revocation hearing in a case in which an adjudication of
guilt had not been deferred. Upon adjudication of your
guilt, the Court may assess your punishment anywhere
within the range provided by law for this offense. After
adjudication of guilt, all proceedings including assessment
of punishment, pronouncement of sentence, granting of
community supervision and your right to appeal continue
as if adjudication of guilt had not been deferred.
....
Upon receiving discharge and dismissal of deferred
adjudication community supervision under Sec. 5(c),
Art.[ ]42.12, TEX. CODE OF CRIMINAL PROCEDURE, and
unless you are ineligible because of the nature of the
offense for which you are placed on deferred adjudication
community supervision, or because of your criminal history,
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you may have a right to petition the Court for an order of
nondisclosure under Section 411.081, TEX. GOVERNMENT
CODE. (initials).
11. Community Supervision: If the Court grants you community
supervision as opposed to deferred adjudication, upon
violation of any imposed condition, you may be arrested
and detained as provided by law. You will then be entitled
to a hearing limited to the determination by the court,
without a jury, whether to revoke your community
supervision and sentence you to confinement for a period
of time not to exceed that originally assessed by the Court
at the time you were found guilty. (initials).
Appellant’s handwritten initials appear in both blanks in the above portion of the
plea paperwork.
Appellant’s plea paperwork also includes a list of waivers:
WRITTEN WAIVERS OF DEFENDANT–JOINED BY ATTORNEY
Comes now the Defendant, in open Court, joined by my attorney and
states:
(A) I am able to read the English language. I fully understand
each of the above written plea admonishments given by the
Court and I have no questions. . . .
....
(C) I am aware of the consequences of my plea;
(D) I am mentally competent and my plea is knowingly, freely, and
voluntarily entered. No one has threatened, coerced, forced,
persuaded or promised me anything in exchange for my plea;
....
(J) I am totally satisfied with the representation given to me by my
attorney. My attorney provided me fully effective and
competent representation;
....
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(P) I give up and waive the attendance and record of a court
reporter under Rule 13.1, TEXAS RULES OF APPELLATE
PROCEDURE; [and]
....
(S) I request that the Court approve the plea recommendation set
out above, and dispose of my case in accordance therewith.
....
_____________
DEFENDANT
Appellant’s signature fills the blank labelled “DEFENDANT” at the bottom of the
list of waivers. Under his signature appears the following:
I have fully reviewed and explained the above and foregoing
court admonishments, rights, and waivers, as well as the following
judicial confession to the Defendant. I am satisfied that the
Defendant is legally competent and has intelligently, knowingly, and
voluntarily waived his rights and will enter a guilty plea
understanding the consequences thereof. . . .
ATTORNEY FOR DEFENDANT
Appellant’s trial counsel signed the blank indicated.
Appellant’s sworn judicial confession, in which he confesses his guilt to the
charged offense, and his sworn application for community supervision follow the
waivers section of the paperwork.
B. The Trial Judge Followed the Plea Bargain.
The trial judge honored the agreement, placing Appellant on deferred
adjudication community supervision for two years and setting community
supervision conditions. In addition to the plea paperwork described above,
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Appellant signed an “Agreement to Return [and] Waiver of Extradition.” In that
document, he agreed to, among other things, “comply with the conditions of
community supervision.” Appellant also signed a copy of his “Conditions of
Community Supervision” and the trial judge’s certification of his right to appeal.
C. Appellant Complained About the Bargain on the Day He Made it.
After the hearing on the plea bargain but on the same day, Appellant wrote
a letter to the trial judge, claiming that
• His attorney told him before he agreed to the bargain that he would
“not have to do community supervision probation”;
• The community supervision conditions were not mentioned during
the plea hearing;
• After the hearing, he “was rushed to sign and fingerprint multiple
sheets of paper without having an appropriate amount of time to
thoroughly review each document”;
• A “courtroom official” printed out the community supervision
conditions and told him that he had to “go speak with a [community
supervision] officer only one time . . . and that was it”;
• The same official told him that deferred adjudication is the same as
“community supervision probation”;
• At around 12:45 p.m., Appellant “noticed a lot of additional
punishments, requirements[,] and fees involving the community
supervision probation that were not mentioned in the court hearing
and were not a part of the agreement”;
• Appellant called his trial counsel and told him that he had not agreed
to the extra conditions not discussed in the hearing;
• Appellant’s trial counsel said he would file a motion to modify the
following week;
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• “The court[] imposed a punishment significantly greater and
different[] than the plea agreement [provided] at the time it was
entered”;
• The court “mistakenly imposed 2 year[s’] community supervision
probation in exchange for confinement time”;
• “That was not a part of the agreement . . . , because [he] was
confined for a long enough amount of time for some to be given time
served, at the judge’s discretion”; and
• Appellant wanted the trial court to modify the plea bargain.
D. About Seven Months After the Trial Judge Placed Him on Deferred
Adjudication Community Supervision, Appellant Filed an Application
for Writ of Habeas Corpus, and the State Filed a Response.
In his application for writ of habeas corpus filed in the trial court, Appellant
contends that his guilty plea was not knowing, intelligent, or voluntary and that he
was denied effective assistance of counsel. Specifically, Appellant complains
that in describing the plea offer, his trial counsel told him that the prosecutor was
not recommending community supervision and advised him to “go ahead and
sign the papers.” Appellant argues that (1) his trial counsel committed ineffective
assistance of counsel by not explaining to him that deferred adjudication is a type
of community supervision and (2) if he had known that deferred adjudication was
a type of community supervision and that he would have to comply with
community supervision conditions other than paying his fine and committing no
other crimes, he would not have pled guilty but would have instead pled not guilty
and gone to trial. Appellant seeks court costs and the withdrawal of his guilty
plea. As support, Appellant attaches his own affidavit and a copy of the
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conditions of community supervision, and he refers to the indictment, the plea
paperwork, the letter he wrote the trial judge on May 12, 2017, and an email
including a slightly different version of that letter.
The State filed a response to Appellant’s application, arguing that
Appellant’s claim should be denied because he had failed to prove that his plea
was involuntary due to ineffective assistance of trial counsel. In support of its
contention, the State points to the various, relevant portions of the plea
paperwork that Appellant had initialed or signed, proof that he had received a
copy of the conditions of community supervision on the day of his plea, and his
signed waiver of extradition.
E. The Trial Judge Denied Habeas Relief.
The trial judge denied Appellant’s requested relief, adopting the findings of
fact and conclusions of law proposed by the State:
FINDINGS OF FACT
1. Applicant was charged with the state jail felony offense of
Possession of a Controlled Substance.
2. Applicant filed an application requesting community
supervision.
3. According to Applicant, his plea counsel advised him to sign
the documents necessary to receive community supervision.
4. Applicant pleaded guilty to the state jail felony Possession
of a Controlled Substance.
5. When Applicant pleaded guilty, he was admonished in writing
in accordance with art. 26.13.
6. Applicant’s admonishments include two signatures by
Applicant.
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7. Applicant initialed paragraph 10 of the admonishments which
explained that “should the court defer adjudicating [his] guilt
and place [him] on community supervision, upon violation of
any imposed condition, [he] may be arrested and detained as
provided by law.”
8. Applicant received the conditions of community supervision in
open court on May 12, 2017.
9. In his waiver, Applicant signed that he understood the
admonishments; he was aware of the entire range of
punishment; and that he was pleading freely, knowingly, and
voluntarily.
10. Applicant signed an Agreement to Return Waiver of
Extradition, in which he agreed to comply with the conditions
of community supervision including a requirement that he stay
in Tarrant [C]ounty unless given permission to leave by his
Community Supervision Officer, and in which he waived
extradition from any jurisdiction in the case that he violates
any of the terms of community supervision.
11. Applicant received community supervision in accordance with
his request.
CONCLUSIONS OF LAW
1. In a habeas corpus proceeding, the burden of proof is on
the applicant. An applicant must prove by a preponderance
of the evidence that the error contributed to his conviction or
punishment.
2. In order to prevail, the applicant must present facts that, if
true, would entitle him to the relief requested. Relief may be
denied if the applicant states only conclusions, and not
specific facts. In addition, an applicant’s sworn allegations
alone are not sufficient to prove his claims.
3. There is a presumption of regularity with respect to guilty
pleas under Texas Code of Criminal Procedure art. 1.15.
4. Before accepting a guilty plea, the court must admonish the
defendant as to the consequences of his plea, including
determining whether the plea is freely, voluntarily, and
knowingly given.
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5. Applicant was properly admonished in accordance with Tex.
Code Crim. Proc. Art. 26.13.
6. When a defendant complains that his plea was not voluntary
due to ineffective assistance of counsel, the voluntariness of
the plea depends on (1) whether counsel’s advice was within
the range of competence demanded of attorneys in criminal
cases and if not, (2) whether there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.
7. Counsel’s advice was consistent with Applicant’s desire for
community supervision.
8. Applicant has failed to prove that Counsel’s advice was not
within the range of competence demanded of attorneys in
criminal cases.
9. Counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
10. Applicant has failed to prove that but for counsel’s errors, he
would not have pleaded guilty and would have insisted on
going to trial.
11. Applicant has not overcome the presumption that his plea
was regular.
12. Applicant has failed to prove that his plea was not voluntary
due to ineffective assistance of counsel.
13. Applicant’s plea was regular.
14. Applicant’s plea was voluntary.
[Citations and selected internal quotation marks omitted.]
II. DISCUSSION
A. We Review the Trial Judge’s Denial of Habeas Relief for an Abuse of
Discretion.
We generally review the denial of relief under article 11.072 for an abuse
of discretion. See Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth
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2011, pet. ref’d). “We review the evidence in the light most favorable to the
habeas court’s ruling” and “afford great deference to the habeas court’s findings
of facts and conclusions of law that are supported by the record.” Id. This
deferential review applies even when, as here, the findings of fact are based on
the record and an affidavit rather than on live testimony. See id.; see also
Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006); Ex parte
Tamayo, No. 02-17-00135-CR, 2017 WL 6047731, at *4–5 (Tex. App.—Fort
Worth Dec. 7, 2017, no pet.) (mem. op., not designated for publication).
B. The Trial Judge Did Not Abuse Its Discretion by Finding that
Appellant’s Guilty Plea was Made Knowingly and Voluntarily.
An applicant seeking habeas relief under article 11.072 based on
ineffective assistance of trial counsel has the burden of proving that
ineffectiveness by a preponderance of the evidence. Ex parte Torres,
483 S.W.3d 35, 43 (Tex. Crim. App. 2016). To prove ineffective assistance, the
applicant must demonstrate that (1) trial counsel’s representation fell below an
objective standard of reasonableness and (2) but for counsel’s deficiency, “there
is a reasonable probability of a different outcome.” Id. An applicant like
Appellant who collaterally challenges his guilty plea satisfies the prejudice prong
by showing that “but for counsel’s errors, he would not have ple[d] guilty and
would have insisted on going to trial.” Id. (quoting Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 370 (1985)).
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When the record shows that an applicant was properly admonished, it
presents prima facie evidence that his guilty plea was knowingly and voluntarily
made. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Ex parte
Colson, No. 07-16-00447-CR, 2017 WL 4341449, at *3 (Tex. App.—Amarillo
Sept. 29, 2017, no pet.) (mem. op., not designated for publication). An applicant
may overcome this prima facie evidence by demonstrating that he did not fully
understand the effects of his guilty plea and was therefore harmed. Martinez,
981 S.W.2d at 197; Colson, 2017 WL 4341449, at *3. But an applicant’s
uncorroborated testimony that counsel gave him misinformation or bad advice is
insufficient to meet this burden. Colson, 2017 WL 4341449, at *3; Arreola v.
State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see
Crumpton v. State, 179 S.W.3d 722, 724 (Tex. App.—Fort Worth 2005, pet.
ref’d).
Here, Appellant was admonished in writing in accordance with article
26.13. See Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2017). Nothing
in the plea paperwork indicates that trial counsel did not explain deferred
adjudication community supervision to Appellant or that he did not fully
understand the requirements thereof, and Appellant affirmatively requested
community supervision and swore that he understood the admonishments and
the range of punishment and that his guilty plea was intelligent, knowing, and
voluntary. Appellant points only to his own words, whether by letter to the trial
judge or affidavit attached to his application, as evidence that he did not fully
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understand the consequences of his plea. Those uncorroborated words are not
enough for this court to override the trial judge’s credibility determinations. See
Colson, 2017 WL 4341449, at *3; Arreola, 207 S.W.3d at 391; Crumpton,
179 S.W.3d at 724. We therefore hold that the trial judge did not abuse his
discretion by (1) rejecting Appellant’s contention that his guilty plea was not
intelligently, knowingly, and voluntarily made and (2) denying his requested relief.
III. CONCLUSION
Having held that the trial judge did not abuse his discretion by denying
Appellant’s requested habeas relief under article 11.072, we affirm the trial
court’s order.
/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE
PANEL: MEIER, GABRIEL, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 7, 2018
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