No. 05-08-00985-CR
Opinion Filed October 13, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. WX07-90071-I (A).
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Opinion By Justice MORRIS.
In this case, Joe Baker filed an application for writ of habeas corpus challenging the voluntariness of his guilty plea. The trial court conducted a hearing and then denied the requested relief. In his sole issue, appellant now contends the trial court abused its discretion in denying him habeas corpus relief. Finding no abuse of discretion, we affirm.
Factual Background
Appellant entered a negotiated guilty plea to a charge of sexual assault. Pursuant to the plea bargain agreement, the trial court deferred adjudication of appellant's guilt, placed him on community supervision for ten years, and assessed a $5,000 fine. Appellant did not directly appeal his conviction, and no record of the underlying plea hearing was presented to the trial court or filed on appeal. Six years later, appellant filed an application for a writ of habeas corpus alleging his guilty plea was involuntary because he entered it relying upon retained counsel's incorrect advice that he would be eligible for early release from community supervision after completing half of the term of supervision. During the writ hearing, appellant testified counsel told him he could apply for early release from community supervision after serving fifty percent of the term. Appellant testified that counsel's representation definitely influenced his decision to plead guilty and he would not have accepted the plea bargain offer had he known he was ineligible for early release. Appellant testified he had no other felony convictions, he had not experienced any problems while on community supervision, and had married and moved out-of-state during the supervision term. Appellant testified he had lost jobs because he is on community supervision. He stated he would be eligible for early release in Utah, where he now resides, and Utah authorities were willing to release him. Appellant claimed counsel had not told him the punishment range for the offense, and he could not remember if the trial court had admonished him of the range. Appellant initially testified counsel told him he would not have to continue sex offender registration after he completed community supervision, but he later explained counsel had told him that after the term of community supervision, "everything is wiped off of my record and it's a clean slate. So that said to me that, no, I did not have to [register]." Appellant's former attorney submitted an affidavit and also testified during the hearing. In his affidavit, counsel stated he had no independent recollection of, and no documents showing, what advice he gave to appellant. He acknowledged it was "certainly probable" he told appellant that the trial court had discretion to grant early release from community supervision. Counsel testified that at the time he represented appellant, he was unaware that sex offenders were ineligible for early release from community supervision. Counsel admitted he probably told appellant the trial court could release him from community supervision at any time. But counsel denied advising appellant that he would become eligible for early release after serving half of the term. Counsel testified he would not have said that appellant would not have to register as a sex offender after leaving community supervision. Counsel could not recall his assessment of the strength of the State's case against appellant. He did recall that other factors, such as appellant's need to travel from Utah for court appearances, were involved in the plea decision, and he thought appellant received a good deal. Counsel also recalled appellant was reluctant to take the plea deal. He agreed appellant's understanding that he could be released early from community supervision probably motivated appellant's decision to plead guilty. In its order denying appellant relief, the trial court concluded both that appellant failed to prove his counsel's advice caused his plea to be involuntary and that the evidence presented, even if true, would not suffice to support appellant's requested relief. Discussion
We review for abuse of discretion the trial court's decision to deny habeas corpus relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). Appellant bears the burden to prove his entitlement to the relief he seeks by a preponderance of the evidence. Id. We review the evidence presented in the light most favorable to the trial court's ruling. Id. In conducting our review, we afford almost total deference to the trial court's determination of the historical facts the record supports, especially when the fact findings require an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App.), cert. denied, 127 S.Ct. 667 (2006). When a defendant challenges the voluntariness of a plea entered upon erroneous advice of counsel, its voluntariness depends upon whether counsel's advice was (1) within the range of competence for criminal defense attorneys, and (2) whether it is reasonably probable that, but for counsel's error, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Here, counsel could not corroborate appellant's account of the advice he gave or its effect upon appellant's decision to accept the plea bargain offer, beyond stating what he probably did or did not do, in light of his usual advice in such cases. Without supporting testimony or documentation from counsel, the determination of whether to grant relief in this case turned critically upon an evaluation of appellant's credibility. In assessing appellant's credibility, the trial court was entitled to view as prejudicial the six-year delay in bringing the complaint. See Kniatt, 206 S.W.3d at 664. Appellant contends this case is similar to two cases in which the court of criminal appeals determined habeas corpus relief was appropriate because the defendant received inaccurate advice from counsel about the effects of his plea. See Ex parte Griffin, 679 S.W.2d 15 (Tex.Crim.App. 1984); Ex parte Kelly, 676 S.W.2d 132 (Tex.Crim.App. 1984). In Griffin and Kelly, the applicants' testimony about counsel's advice was corroborated by other witness testimony and documentation sufficient to satisfy the preponderance-of-the-evidence standard. See Griffin, 679 S.W.2d at 16-17; Kelly, 676 S.W.2d at 133-34. In this case, however, the trial court could, and apparently did, disbelieve appellant's account, and it discounted counsel's faded recollection about what he might have told appellant. In the absence of more definitive evidence, or greater corroboration from counsel, we defer to the trial court's assessment of appellant's credibility in concluding appellant failed to prove counsel's advice rendered his plea involuntary. See Kniatt, 206 S.W.3d at 664; Amequita, 223 S.W.3d at 367; see also Arreola v. State, 207 S.W.3d 387, 392-93 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (concluding defendant's guilty plea not rendered involuntary by allegations counsel misinformed him he could obtain early release from probation and would not have to register as sex offender after probation ended). Moreover, appellant's allegations, even if true, would not support a conclusion that his guilty plea was entered involuntarily. Misinformation from counsel about speculative, collateral consequences of a guilty plea, such as eligibility for a hypothetical early release, does not establish a defendant entered an involuntary plea, even if the defendant relied upon the misinformation in pleading guilty. See Ex parte Evans, 690 S.W.2d 274, 278-79 (Tex.Crim.App. 1985). We conclude the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus. Thus, we resolve appellant's sole issue on appeal against him. We affirm the trial court's order.