Ex Parte Garet Johnson ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00726-CR
Ex parte Garet Johnson
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY,
NO. C-1-CR-06-723225, HONORABLE MICHAEL J. McCORMICK, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Garet Johnson appeals from the trial court’s denial of his application for
writ of habeas corpus challenging his conviction for misdemeanor driving while intoxicated. See
Tex. Code Crim. Proc. art. 11.072. He contends that trial counsel’s ineffective assistance rendered
his plea involuntary. We affirm the trial court’s denial of relief.
BACKGROUND
On January 19, 2006, appellant was arrested for misdemeanor DWI and felony
possession of a controlled substance. One attorney represented him on both charges and eventually
negotiated plea agreements for both cases. On May 17, 2007, appellant pled guilty, not to the felony
possession of a controlled substance charge but, pursuant to the negotiated plea agreement, to
misdemeanor attempted possession of controlled substance. On June 29, 2007, appellant pled nolo
contendere to the driving while intoxicated charge. On July 13, 2012, appellant filed an application
for writ of habeas corpus challenging only his DWI conviction. He asserted that his trial counsel
misrepresented information to him about the plea agreements she negotiated on his behalf. He
claims that his trial counsel had advised him that in order to accept the plea bargain reducing the
felony drug possession to the lesser charge of attempted possession of a controlled substance he was
required to plead to the driving while intoxicated charge. After conducting a hearing on the habeas
application, the trial court denied relief finding that the evidence did not support appellant’s claims
and that he was not entitled to relief.
STANDARD OF REVIEW
To prevail in a post-conviction writ of habeas corpus proceeding, the applicant bears
the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief.
Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In reviewing a trial court’s
decision to grant or deny habeas relief, we review the facts in the light most favorable to the
trial court’s ruling and, absent an abuse of discretion, uphold the ruling. Ex parte Wheeler,
203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
In an article 11.072 post-conviction habeas corpus proceeding, the trial judge is the
sole finder of fact.1 Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). Thus, in
conducting our review, we afford almost total deference to the trial court’s factual findings when
supported by the record, especially when those findings are based upon credibility and demeanor.
1
The State contends that appellant filed an application pursuant to article 11.07 rather than
an application pursuant to article 11.072. This contention appears to be based on a mistaken
reference to article 11.07 in the body of the application. However, it can be understood that
appellant was seeking a writ under article 11.072 based on the fact that he was challenging the legal
validity of a conviction for which community supervision was imposed. See Tex. Code Crim. Proc.
art. 11.072, § 2(b)(1). Moreover, the trial court followed the statutory procedures set forth in article
11.072. See id., §§ 6–7.
2
Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Thompson,
153 S.W.3d 416, 417–418 (Tex. Crim. App. 2005).
ANALYSIS
Appellant claims that his trial counsel tricked him into entering a plea to the driving
while intoxicated charge as a prerequisite to reducing the possession of a controlled substance charge
from a felony to a misdemeanor. In his sole point of error, appellant asserts that the trial court
abused its discretion in failing to conclude that trial counsel misrepresented the terms of the plea
agreement, which rendered his plea involuntary.
A guilty plea is not voluntary if made as a result of ineffective assistance of counsel.
Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). To prevail on a claim of ineffective
assistance of counsel, the defendant must show that trial counsel’s performance was deficient and
that a reasonable probability exists that the result of the proceeding would have been different but
for the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State,
310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). Any allegation of ineffectiveness must be firmly
founded in the record, and the record must demonstrate affirmatively the alleged ineffectiveness.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). A defendant challenging a guilty plea must show a
reasonable probability that, absent counsel’s deficient performance, he would not have pled guilty
and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Ex parte
Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). In determining whether an attorney’s
performance was deficient, we apply a strong presumption that the attorney’s conduct was within
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the range of reasonable professional assistance, Thompson, 9 S.W.3d at 813, and counsel’s advice
“was within the range of competence demanded of attorneys in criminal cases,” Ex parte Ali,
368 S.W.3d 827, 833 (Tex. App.—Austin 2012, pet. ref’d) (quoting McMann v. Richardson,
397 U.S. 759, 771 (1970)).
Appellant’s trial counsel testified at the habeas hearing that throughout her 17-year
career as a criminal defense attorney she has handled roughly 2500 cases. She indicated that this was
not her first time advising a client about the details of a plea agreement and she correctly advised
appellant of his options in this case. She testified that had the DWI plea been part of the reduction
of the felony charge she would have made a note of it in her file, and she did not. The assistant
district attorney handling the felony drug charge testified that “the offer I made was not contingent
on anything happening in that DWI.” Additionally, the assistant county attorney handling the DWI
stated that had the DWI been contingent on the drug charge she would have called the felony
prosecutor to work out details of the terms of probation and that she has no record of ever making
such a call. In their testimony at the habeas hearing, consistent with their affidavits submitted in
response to appellant’s habeas corpus application, the assistant district attorney, the assistant county
attorney, and appellant’s trial counsel all stated that they could not recall any mention of the DWI
plea being a prerequisite to the reduction of the drug possession charge nor did they have any notes
pertaining to such a package deal in their files. Moreover, neither written plea agreement contained
any mention that the plea was related to or conditional upon the other plea.
In the written order denying relief, the trial court made explicit findings that:
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• the reduction of the felony [possession of a controlled substance] charge was
not dependent on [appellant’s] pleading to the DWI; [and]
• trial counsel did not misrepresent to [appellant] that he was required to plead
guilty or no-contest to the DWI charge as a prerequisite to the felony
prosecutor’s reducing the felony POCS charge to a misdemeanor.
The court then concluded “that the evidence falls far short of that required to grant any kind of
relief.” Based on the testimony presented at the habeas hearing, the court’s fact findings are
supported by the record. Further, these findings support the trial court’s implied conclusion that
counsel did not render deficient performance and therefore appellant’s plea was not involuntary due
to ineffective assistance of counsel, as well as the court’s explicit conclusion of law that the evidence
failed to support appellant’s claim or entitle him to relief.
We conclude that the trial court did not abuse its discretion in denying appellant’s
application for writ of habeas corpus. Giving proper deference to the court’s findings of fact, the
record supports the court’s conclusion that appellant failed to show ineffective assistance by trial
counsel and thus appellant was not entitled to habeas relief on the ground asserted. We overrule
appellant’s sole point of error.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s order denying habeas relief.
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__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: July 29, 2015
Do Not Publish
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