Ex Parte Jawaid Ahmed Parker

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-077 CR ____________________

EX PARTE JAWAID AHMED PARKER

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On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 04-07-05731 CR

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MEMORANDUM OPINION

The opinion of June 14, 2006, is withdrawn, and the following is substituted in its place.

Jawaid Ahmed Parker appeals the trial court's order denying him relief on his application for writ of habeas corpus under Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005). Pursuant to a plea bargain, Parker pled guilty to the offense of tampering with a governmental record. See Tex. Pen. Code Ann. § 37.10 (Vernon Supp. 2005). The indictment charged him with making a false entry on a marriage license by representing that S.P., whom he married, was not a son or daughter of a brother of the whole blood or half blood. S.P. was Parker's niece, and she was indicted along with Parker. The State dropped the charge against S.P.

Pursuant to the plea bargain, the trial court assessed a $750 fine against Parker, sentenced him to two years in a state jail facility, suspended imposition of the jail sentence, and probated the sentence for two years. Parker did not appeal his conviction. Later, he filed an application for writ of habeas corpus with the trial court. The trial judge denied Parker habeas relief, entered findings of fact and conclusions of law, and certified Parker's right to appeal. On appeal, Parker argues his due process rights were violated; the government's conduct was outrageous; his counsel was ineffective; no evidence was submitted by which he could have been found guilty; and his sentence is void. We overrule Parker's issues and affirm the trial court's denial of habeas relief.

Cognizable state habeas applications are limited to claims of a jurisdictional defect rendering the judgment void or for denials of fundamental or constitutional claims. See Ex parte Carmona, 185 S.W.3d 492, 494 (Tex. Crim. App. 2006) (citing Ex parte Sanchez, 918 S.W.2d 526, 527 (Tex. Crim. App. 1996)). Parker has the burden to show he is entitled to habeas corpus relief and he must prove his allegations by a preponderance of the evidence. See Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.--Fort Worth 2005, no pet.) (citing Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995)).

In reviewing the trial court's decision to deny or grant habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). Absent an abuse of discretion, we will uphold the trial court's decision. Id. We "'afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.'" Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). When the record contains findings of fact, we defer to the findings if the record supports them. See Ex parte Thompson, 153 S.W.3d 416, 417-18 (Tex. Crim. App. 2005).

The trial court did not conduct an evidentiary hearing; its decision was based on the evidence submitted by the parties. Parker and the State filed pleadings, affidavits, and other documentary evidence. Parker filed a sworn habeas application and a sworn "Memorandum of Facts and Law" with documents attached. Upon reviewing the habeas application, the trial judge entered an order requiring the prosecutors, Parker's defense counsel, and Special Agent Marcos Saltarelli to file affidavits responding to specific written questions posed to them by the trial judge. All complied.

Along with his sworn habeas application and Memorandum of Facts and Law, Parker submitted the following exhibits: two letters from a psychiatrist noting Parker suffers from "Major Depression"; a physician's letter explaining Parker has "Morbid Depression" and is on medication; a copy of a letter from S.P. to a Judge Yarbrough in another, unidentified case in which S.P. describes Parker as a person of "good moral character" and explains her parents are "abusive and extremely controlling"; Parker's mother's immigrant petition for a relative (Parker); an alleged statement by Agent Saltarelli in which he explains he arrested defendant May 28, 2004, and defendant "was driving a brand new Lexus & had over $2,000.00 in cash in his possession"; Parker's October 25, 2004, letter complaining to his attorney, Omar Izfar, about inadequate representation; an investigative memorandum concerning an interview with Bethany Bachman with whom S.P. had stayed for a few days after Parker's May 2004 arrest; a copy of S.P.'s alleged note asking Parker's "associate" to sell some of Parker's property; and an advertisement showing pictures of a car and motorcycle like those Parker says he owned.

Parker contends he was denied due process because the asserted lack of admonishments, coercion by his attorney and the government, a defective indictment, duress, and mental incompetence rendered his plea involuntary. ⁽¹⁾ Article 26.13 requires that the court admonish a defendant and sets out the content of those admonishments. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005). Article 26.13(d) provides that the "court may make the admonitions required by this article either orally or in writing." Id. The reporter's record of the plea hearing is not before us. The clerk's record, however, contains written admonishments that satisfy the requirements of Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005). Parker's initials are beside each applicable admonishment in the plea documents, and the signatures of Parker, defense counsel, the prosecutor, and the trial judge appear at the document's conclusion.

If the court makes the admonishments in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonishments and is aware of the consequences of his plea. Id. at art. 26.13(d). The written admonishments contain this statement, and the required signatures are present. Further, the judgment recites that the "Court admonished the Defendant as to the consequences of such plea and the Defendant persisted in entering his plea of Guilty." We presume the regularity of the judgment and record. See Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002) (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985) (op. on reh'g)). Parker has not established the trial court misinformed or failed to inform him about the consequences of his plea. Where the record shows that the defendant was properly admonished, it is a prima facie showing that the plea was knowing and voluntary. See Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001) (citing Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986)).

Parker also asserts his plea was involuntary because the trial court and his attorney failed to inform him that if he agreed to a plea bargain for regular community supervision in this case, he could not receive probation in a pending Harris County case. Article 26.13 does not require the trial judge to warn Parker about the consequences his plea would have on a case pending elsewhere. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005). The plea papers signed by Parker contain the required admonishments. The trial judge is not required to give any others. See id; see Jackson v. State, 139 S.W.3d 7, 17 (Tex. App.--Fort Worth 2004, pet. ref'd) (Court will not impose a duty on a trial court to admonish a defendant about the consequences that a guilty plea would have on possible later proceedings when the trial court has no knowledge of the nature of the charges, or any other pertinent circumstances surrounding the other charges.).

Parker also argues his trial counsel was ineffective for failing to inform him of this consequence. To prevail on an ineffective assistance claim, appellant must prove by a preponderance of the evidence that (1) counsel's performance fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Ineffective assistance allegations must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Our review of trial counsel's performance must be highly deferential to "avoid the deleterious effects of hindsight." Id.

Parker argues that if counsel had informed him of the correct probation law, he "would have opted to go to trial, knowing full well that even if he lost the trial, [the] jury would have granted him Deferred Probation, given he had no prior criminal history[.]" Parker assumes a jury in the "tampering" case could have given him deferred probation. However, only the trial judge can give deferred adjudication. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2005). Parker also points out that trial counsel did not answer the trial court's question asking what advice the attorney gave Parker concerning the effect his plea would have on the Harris County case.

Trial counsel filed an affidavit stating he was not the attorney in the other case and he made no promises or assurances about what would happen in Harris County. Trial counsel stated he advised Parker that the Harris County case was a completely separate charge that would be handled when the Montgomery County charge was resolved. Parker says he rejected a plea offer of two years in the Harris County case and "went to trial totally believing that he would get probation and ended up with 15 years prison sentence due to his counsels' misrepresentations." We have no information in the record about other counsel's representation in the Harris County case. The record does not indicate whether the Harris County case was a jury trial or bench trial.

The Court of Criminal Appeals has stated, "[I]f the consequence is definite and largely or completely automatic, then it is a direct consequence. . . . [A] direct consequence is one that is 'a definite, practical consequence of a defendant's plea.'" Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)). Even without a state jail felony conviction in the instant case, there is nothing in the record before us to indicate that probation in the Harris County case was definite and largely or completely automatic. See Mitschke, 129 S.W.3d at 135; but see Jackson v. State, 139 S.W.3d 7, 19 (Tex. App.--Fort Worth 2004, pet. ref'd) (Applying Mitschke, appellate court held counsel was ineffective in failing to inform defendant of the effect of a guilty plea and conviction in a non-capital felony case on a pending capital case.). On this record, any issues concerning probation consequences are attenuated and collateral. See Ex parte Morrow, 952 S.W.2d at 536 (Counsel was under no duty to inform Morrow of various ways his three guilty pleas could be used against him at a possible capital murder retrial, because the use is collateral, and not a definite, practical consequence of his guilty pleas.).

Parker contends his trial counsel was ineffective in other ways: failing to prepare for the case, question any witnesses, perform a background check on Parker's psychiatric history, explain the charge, and investigate selective prosecution. As to trial counsel's preparation, we have only parts of the record from the original guilty plea before us; with that information and the affidavits from counsel and the prosecutors, we are able to determine counsel did perform work on the case. In his affidavit, trial counsel stated he obtained a copy of the relevant document. He explained that, except for an unknown clerk, there were no witnesses; he did not interview S.P. Trial counsel stated he researched possible defenses and found none applied. He stated he informed Parker the case "was a pretty straightforward charge and that there [was] not a lot of room for dispute." Counsel indicated he explained the charge to Parker and Parker appeared to understand it. From the affidavit of the assistant district attorney, Brenda Martin, we know she and trial counsel negotiated a plea bargain. As to Parker's claim of his own lack of competency in entering into the plea agreement and pleading guilty, counsel indicated Parker never told him he (Parker) was suffering from any form of mental illness, and counsel believed Parker was mentally competent to understand and accept the plea. The doctors' letters do not establish any mental competency issues regarding Parker's November 2004 guilty plea. Parker signed the admonishments and acknowledged he understood them. Parker's letter to his attorney complains of the attorney's lack of communication with Parker, lack of aggressive action on Parker's case, and failure to retrieve Parker's property. The letter does not state specifics showing counsel's performance was deficient. The record does not demonstrate counsel's performance fell below prevailing professional norms.

Parker also contends that his attorney and Marcos Saltarelli, the Special Agent with the U.S. Immigration Customs Enforcement Agency, coerced him to plead guilty in the tampering case and that the prosecution was malicious and vindictive. Parker maintains he suffered abuse and mental anguish in jail ⁽²⁾ and was under such duress from the "government's outrageous actions" that he was mentally incompetent and pled guilty. Parker contends Agent Saltarelli made Parker's life in jail miserable: Parker says he was called a "Pakistani baby raper"; he was placed in a racially segregated cell where he was segregated because of his nationality; inmates harassed and beat him; he was denied his depression medicine; and he was under such duress that he began to stutter. Parker also says Agent Saltarelli was doing personal favors for S.P.; S.P. filed sexual assault charges against him because Saltarelli demanded she do so; Saltarelli assisted S.P., and she "was allowed to take all [Parker's] property and cash[,]" including his $70,000 car; and that she perjured herself on the stand in another case. Parker also says Saltarelli influenced prosecutors to dismiss the "tampering" charges against S.P. because she was a United States citizen; the agent was able to have S.P.'s name removed from the apartment lease; "they" cut Parker off from his money supply so that he would not be able to obtain an attorney; and the government influenced Parker's attorneys. Parker concludes Saltarelli's motivation was jealousy because Parker was a "student from Pakistan in imported designer jeans, Armani watch and a $70,000 car and immediately implied that I must be doing something illegal." Parker argues this alleged conduct violated his due process rights and caused him to plead guilty.

Agent Saltarelli denied the conduct occurred. In his affidavit, he denied using any ethnic or racial slurs to refer to Parker, denied having any influence over Parker's jail conditions, and denied any involvement in any violence against Parker. Saltarelli further stated he did not conspire with Parker's attorneys in any criminal or civil immigration matter. Saltarelli did not deny he assisted S.P. in obtaining Parker's vehicle and other property. We conclude the matters involving issues of property and alleged perjury are collateral to any guilty plea by Parker in the "tampering" case and do not support the involuntary plea claim. Furthermore, other than the bare allegations in his habeas petition and "Memorandum of Facts and Law," Parker submitted no evidence of his claims concerning jail conditions, S.P.'s alleged perjury in another case, or the filing of sexual assault charges against Parker. As set out in the Findings of Fact and Conclusions of Law, the trial court found Saltarelli's affidavit credible and concluded Parker failed to prove these allegations of "outrageous" government conduct by a preponderance of the evidence.

Parker contends the indictment was defective because S.P., also charged in the indictment for the same offense, was not prosecuted. He claims the trial court had no jurisdiction over him because the indictment was never properly transferred from the 410^th to the 221^st District Court. He also contends trial counsel was ineffective in failing to object to these alleged deficiencies.

A defendant must raise an allegation of a defect in the indictment before the date on which the trial on the merits commences, or the alleged defect is waived. Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003); Tex. Code Crim. Proc. Ann. art. 1.14 (b)(Vernon 2005). The record does not show whether Parker raised any alleged defect prior to trial. The indictment does not appear defective. As to the jurisdictional issue, although a specific court may impanel a grand jury, a returned case need not be assigned there for trial. Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.--Dallas 2005, pet. ref'd). Here, the indictment shows the grand jury was impaneled in the 410^th Judicial District. All further documents in the record are styled "in the 221^st Judicial District." Nothing in the record shows the case was originally filed in the 410^th Judicial District Court. When one court impanels the grand jury that returns an indictment in the case, but the case is filed in another court, no transfer order is required. Id. We find the trial court had jurisdiction over Parker. Parker asserts the government selectively prosecuted him because of his race, religion, or nationality. The affidavit of Michael Griffin, assistant district attorney, states as follows:

In my opinion, the evidence that was presented to this office by Special Agent Marcos Saltarelli was sufficient to prove [Parker] had committed the offense of tampering with a government record. The case was accepted and presented to the Grand Jury based on that evidence, and not due to any pressure from any federal entity.

Griffin further explains he "exercised [his] discretion in dismissing the charges against [S.P.]" because he believed she was "merely [Parker's] pawn rather than a legitimate co-conspirator. [S.P.] was only 18 years old when [Parker], her 33-year-old uncle, married her under the false pretenses which served as the basis for this prosecution." Brenda Martin, the assistant district attorney who negotiated the plea bargain agreement on behalf of the State, stated by affidavit that federal authorities did not pressure the State to pursue the prosecution, and she moved forward with the case based on evidence that appeared sufficient to prove the offense. The trial judge was free to believe the prosecutors' sworn statements regarding the basis for the prosecution.

Parker contends the government interfered with his attorneys, violated his due process rights, and, through Agent Saltarelli, conspired to convict and deport him. As an example of this alleged conspiracy, he points to trial counsel's failure to obtain deferred adjudication rather than regular probation. Brenda Martin's affidavit states, "The State offered [Parker] two years in State Jail, probated for two years. . . . Those terms are reflected in my written plea offer to [Parker's] trial counsel . . . , a copy of which is attached hereto. . . . At no time did I represent to [Parker] or to his attorney that the State would accept a plea of deferred adjudication." Martin stated she "never asked trial counsel . . . to make any special effort to secure [Parker's] guilty plea, nor did counsel indicate that he intended to entice or coerce [Parker] into pleading guilty. To the contrary, [trial counsel] tried to persuade [her] to drop the charge against [Parker], and [she] found [counsel] to be somewhat inimical during interactions with him." Further, Saltarelli denied conspiring with Parker's attorneys on any matter, including pleas. Parker has not established by a preponderance of the evidence that his attorney conspired with or was pressured by the state or federal government in obtaining Parker's guilty plea. Martin's affidavit states that the government's handling of the case was not the result of pressure from federal authorities.

Parker contends there was no evidence before the trial court that supported the judgment. However, the record contains Parker's written stipulation of evidence in which Parker stipulated and admitted under oath that on or about March 4, 2003, he "did then and there, with intent to defraud and harm another, namely, Montgomery County and the State of Texas, knowingly make a false entry on a governmental record, to-wit: an application for a marriage license, said false entry being that [S.P.] was not a son or daughter of a brother or sister of the whole blood or half blood or by adoption[.]" Similarly, the admonishments contain Parker's acknowledgment that he had "read the Indictment and [he] committed each and every element alleged on the date alleged in the Indictment." The judgment reflects that "after reviewing the evidence submitted and determining that it was sufficient to show the guilt of the Defendant," the court found Parker guilty. Parker' s claim that the judgment is unsupported by evidence is without merit.

Parker argues the trial court did not give "due consideration" to his application for habeas corpus. The record does not support his claim. The trial court submitted written questions to the prosecutors, Parker's attorney, and Agent Saltarelli, and the court required them to respond with affidavits. In her Findings of Fact, the trial judge set out Parker's claims from his habeas petition. Based on the evidence submitted to her, the trial judge made her Findings and Conclusions. The trial court gave due consideration to the habeas application. Parker also contends the trial court should have independently determined the veracity of the affidavits. However, the applicant has the burden to prove the claims in his habeas application by a preponderance of the evidence. Parker did not establish the allegations in his habeas application by a preponderance of the evidence, and the trial judge did not abuse her discretion in denying habeas relief.

We overrule Parker's issues and affirm the trial court's denial of relief on the habeas application.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on May 2, 2006

Opinion Delivered July 12, 2006

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. In his brief to this Court, Parker references his arguments in the trial court. We therefore construe his issues before this Court as including those made to the trial court.

2.

Apparently, Parker was in "immigration custody" during this time frame.