Ex Parte David Sidney McKeand ( 2015 )

Order issued February 10, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00126-CR
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EX PARTE DAVID SIDNEY MCKEAND, Appellant
On Appeal from the County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Case No. 1932729
MEMORANDUM ORDER
Appellant, David Sidney McKeand, challenges the trial court’s denial of his
application for writ of habeas corpus in relation to his conviction for driving while
intoxicated (“DWI”). This Court issued its original opinion in this case on August
5, 2014. Appellant subsequently moved for rehearing.
In our August 5, 2014 opinion, we affirmed the trial court’s denial of habeas
relief on the basis that, by failing to file a complete record, appellant presented
nothing for our review and thus failed to meet his burden to prove that he was
entitled to relief by a preponderance of the evidence. See Ex parte Richardson, 70
S.W.3d 865, 870 (Tex. Crim. App. 2002) (holding that, in proceeding to review
denial of application of writ of habeas corpus, applicant bears burden of proving
that he is entitled to relief by preponderance of evidence); Ex parte Henderson,
565 S.W.2d 50, 51–52 (Tex. Crim. App. 1978) (holding that trial court’s judgment
in habeas corpus proceeding will be affirmed if appellant fails to request or, if
appellant is able to do so, pay for reporter’s record); In re Mott, 137 S.W.3d 870,
875 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding) (holding that, in
absence of reporter’s record, appellate court considering trial court’s denial of
habeas corpus application will presume that there was evidence to support trial
court’s judgment).
Following the issuance of our August 5, 2014 opinion and judgment,
appellant filed the reporter’s record of the hearing on his application for writ of
habeas corpus and a motion for rehearing. He argued that all of the evidence
considered by the trial court was contained in his affidavit filed with his
application for writ of habeas corpus and that his affidavit was sufficient to show
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that he inadequately represented himself in his DWI case and that his plea was
involuntary.
However, appellant’s affidavit attached to his application provided only his
unsupported statement that he provided ineffective representation to himself on the
DWI offense and that he was coerced into entering the plea agreement by the
State’s threat to prosecute him on both the DWI offense and an additional felony
evading arrest charge.
Appellant argues that he had a right to effective representation in the guilty-
plea proceedings. See Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App.
2009). However, “when a convicted defendant has insisted upon self-
representation, any subsequent claim of ineffective assistance of counsel is not to
be considered.” Perez v. State, 261 S.W.3d 760, 766 (Tex. App.—Houston [14th
Dist.] 2008, pet. ref’d). Appellant represented himself pro se in the underlying
DWI proceedings, and he provides no argument or evidence that he requested and
was denied appointed counsel or that he was improperly admonished regarding the
consequences of proceeding pro se. Accordingly, we cannot consider his claim of
ineffective assistance of counsel. See id.
Likewise, to assess the voluntary nature of a plea, a court must ask whether
the plea represents a voluntary and intelligent choice among the alternative courses
of action open to the defendant. Solomon v. State, 39 S.W.3d 704, 707 (Tex.
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App.—Corpus Christi 2001, no pet.). However, appellant has provided no
evidence beyond his conclusory statement that his plea was coerced to support his
claim that his plea was involuntary. See id.; see also Kniatt v. State, 206 S.W.3d
657, 664 (Tex. Crim. App. 2006) (“An applicant seeking habeas corpus relief on
the basis of an involuntary guilty plea must prove his claim by a preponderance of
the evidence.”).
Thus, nothing in the record meets appellant’s burden of proving that he is
entitled to relief by a preponderance of the evidence. See Ex parte Richardson, 70
S.W.3d at 870. Accordingly, we deny the motion for rehearing.
PER CURIAM
Panel consists of Justices Keyes and Huddle.1
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The Honorable Jim Sharp, former Justice of this Court, was a member of the Panel
and participated in deciding this case. Because his term expired on December 31,
2014, he did not participate in deciding the motion for rehearing. See TEX. R. APP.
P. 49.3 (“A motion for rehearing may be granted by a majority of the justices who
participated in the decision of the case. Otherwise it must be denied.”).
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