Ex Parte Dean Wesley Wyman ( 2018 )

Opinion issued December 13, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00855-CR
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EX PARTE DEAN WESLEY WYMAN, Appellant
On Appeal from the County Criminal Court at Law No. 4
Harris County, Texas
Trial Court Case No. 2100499
MEMORANDUM OPINION
Dean Wesley Wyman appeals the trial court’s order denying his post-
conviction application for writ of habeas corpus. In two issues, Wyman argues that
the trial court erred in denying his application because he received ineffective
assistance of counsel. We affirm.
Wyman pleaded guilty to the misdemeanor offense of assault/family violence
in 2007. He received a sentence of deferred adjudication and a fine. After violating
terms of his deferred adjudication community supervision, he was adjudicated guilty
and sentenced in 2010 to 20 days in the Harris County Jail.
In 2016, Wyman filed an application for writ of habeas corpus and in 2018,
he filed an amended application, seeking to vacate his conviction. Wyman claimed
that his trial counsel was ineffective because she failed to investigate and advise him
of the consequences of his plea.
The trial court found that counsel’s performance was not deficient and that
Wyman failed to show his plea was involuntary. The State argued, and the trial court
agreed, that the doctrine of laches also applied.
Wyman filed his application under Article 11.09 of the Code of Criminal
Procedure, which provides:
If a person is confined on a charge of misdemeanor, he
may apply to the county judge of the county in which the
misdemeanor is charged to have been committed, or if
there be no county judge in said county, then to the county
judge whose residence is nearest to the courthouse of the
county in which the applicant is held in custody.
TEX. CODE CRIM. PROC. art. 11.09.
Although Wyman is not currently incarcerated, he contends that he may seek
habeas relief given the collateral consequences from his plea. The record shows no
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State challenge to Wyman’s lack of confinement and it was not addressed in the trial
court’s findings of fact.
Wyman claims he meets the confinement requirement because the collateral
consequences of his conviction include state action that prevents him from obtaining
employment with the Department of Defense. In support of this claim, Wyman relies
upon Ex parte Wolf, 296 S.W.3d 160 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d), which held that an applicant’s “inability to obtain employment in the banking
and securities industry [constituted] collateral consequence pursuant to state action”
that was sufficient to satisfy the requirement of confinement. Id. at 166–67. Wyman
contends that his circumstances mirror those in Wolf and thus, habeas relief is
appropriate. In Wolf, the State conceded that habeas corpus jurisdiction may be based
on collateral consequences resulting from state action. See id. at 166. The state action
found in Wolf was a state agency making information concerning Wolf’s criminal
history available to other government agencies. See id.Here, Wyman claims that he is unable to obtain employment with the
Department of Defense because his conviction prevents him from obtaining the
required security clearance. Thus, the state action of making information about
Wyman’s conviction available to the Department of Defense constitutes a collateral
consequence that can support habeas corpus jurisdiction. See id. at 167.
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Wyman argued that the trial court erred in denying relief because he
established that his plea was involuntary due to trial counsel’s ineffective assistance.
In particular, Wyman claimed that counsel’s performance was deficient because she
failed to advise Wyman of the consequences of his plea and to investigate and
present a defense.
In reviewing a trial court’s denial of a habeas application, we review the
evidence in the light most favorable to the trial court’s ruling, upholding the ruling
unless the appellant shows that the trial court committed an abuse of discretion. See
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). A trial court abuses
its discretion if it acts without reference to any guiding rules or principles or acts
arbitrarily or unreasonably. See Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim.
App. 1993).
To prevail on a claim of ineffective assistance of counsel, Wyman must show
that his counsel’s performance was deficient, and that this deficient performance
prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687–96, 104 S.
Ct. 2052, 2064–69 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). To establish prejudice, Wyman must show “a reasonable probability that, but
for his counsel’s unprofessional errors, the result of the proceeding would have been
different.” Bone, 77 S.W.3d at 833. “A ‘reasonable probability’ is one sufficient to
undermine confidence in the outcome.” Id. In reviewing counsel’s representation,
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we presume that “counsel’s actions fell within the wide range of reasonable and
professional assistance.” Id.If the trial court made no explicit findings of fact supporting its ruling, we will
imply findings supporting the ruling as long as evidence supports the implied
findings. See Ex parte Montano, 451 S.W.3d 874, 877 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d). “We similarly defer to any implied findings and conclusions
supported by the record.” Ex parte Aguilera, 540 S.W.3d 239, 246 (Tex. App.—
Houston [1st Dist.] 2018, no pet.) (internal quotations and citation omitted).
Wyman’s trial counsel provided an affidavit, in which she stated that she did
not independently recall the case, but that it was her usual practice to recommend a
complete investigation before a plea, in which she would attempt to contact all
witnesses to confirm or deny the facts as presented in offense reports, and she would
hire an investigator when appropriate. Counsel spoke with Wyman’s wife as part of
her preliminary investigation. Once an offer was made by the State, it was counsel’s
practice to convey the offer to the defendant and to recommend not rushing the
decision. Counsel stated she would never recommend a plea that would negatively
affect a person’s ability to work and she always advised her clients of the negative
ramifications even of a deferred adjudication in a family violence case.
Based on this evidence, we imply findings that Wyman’s trial counsel acted
according to her usual and customary practice to conduct an investigation before
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pleading Wyman’s case, and to advise Wyman of his options and the consequences
of his plea. These findings support the trial court’s determination that Wyman failed
to meet his burden of establishing ineffective assistance by his trial counsel. Because
Wyman has not established that the trial court abused its discretion in denying his
application, we overrule his issues. Accordingly, we need not address the State’s
alternative ground for denying relief based on the doctrine of laches. See Ex parte
Medina, No. 01–16–00673–CR, 2017 WL 343614, at *2 (Tex. App.—Houston [1st
Dist.] Jan. 24, 2017, no pet.); TEX. R. APP. P. 47.1.
We affirm the trial court’s order. Any pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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