Opinion
NO. 01-19-00644-CR
07-30-2020
EX PARTE ADRIAN BARNES, Appellant
On Appeal from the 209th District Court Harris County, Texas
Trial Court Case No. 1494270A
MEMORANDUM OPINION
Appellant, Adrian Barnes, challenges the trial court's order denying his application for writ of habeas corpus. In three issues, appellant contends that the trial court erred in denying him habeas relief.
We affirm.
Background
After appellant, Adrian Barnes, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of burglary of a habitation, the trial court deferred adjudication of his guilt and placed him on community supervision, subject to certain conditions, for four years. Later, the State moved to adjudicate appellant's guilt, alleging that he had violated numerous conditions of his community supervision. After a hearing on the State's motion to adjudicate guilt, the trial court found true an allegation that appellant had failed to report as directed, found appellant guilty, and assessed his punishment at confinement for five years.
See TEX. PENAL CODE ANN. § 30.02(a), (c)(2).
On the same day as the hearing on the State's motion to adjudicate, appellant filed his application for a writ of habeas corpus under Texas Code of Criminal Procedure article 11.072. In his application, appellant asserted that his guilty plea was involuntary because his trial counsel provided him with ineffective assistance by failing to conduct an adequate investigation, failing to explain to appellant that he had "possible defenses," and failing to explain to appellant that his conduct "did not meet the elements of burglary." Appellant further asserted that he had an actual-innocence claim based on Schlup v. Delo, 513 U.S. 298 (1995). And he would not have pleaded guilty if had known that "he was actually innocent."
See TEX. CODE CRIM. PROC. ANN. art. 11.072 (procedure for application for writ of habeas corpus in community supervision case); see also Harvin v. State, No. PD-0634-13, 2013 WL 5872844, at *2 n.23 (Tex. Crim. App. Oct. 30, 2013); Arreola v. State, 207 S.W.3d 387, 389-90 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (even though defendant had since been adjudicated guilty, at time his application for writ of habeas corpus was filed, defendant was on community supervision based on trial court's deferred adjudication order).
Appellant attached his own affidavit to his application, in which he testified:
My previous attorney did not explain to me that my conduct did not constitute the elements of burglary and that my mere presence at the scene of the incident was not sufficient without more to prove me guilty of burglary. I pleaded guilty because I felt like I had no other chose [sic] because my lawyer told me that I had no defense and no way to win my case. Had I known that my conduct did not fit the elements of burglary, I would not have pleaded guilty. I would have exercised my right to a jury trial and challenged the evidence in the case.
On July 12, 2019, the trial court conducted a hearing on appellant's habeas application. At the hearing, appellant presented the testimony of his trial counsel, Roy Whitaker.
Whitaker testified that he represented appellant in 2016 until appellant pleaded guilty in 2017. Appellant retained Whitaker as his counsel. Whitaker met appellant at his office and spent about an hour with appellant at their initial meeting. Whitaker's involvement in appellant's case lasted about six months. Because Whitaker took over appellant's case from another attorney, he received discovery from the State "pretty quickly." Whitaker reviewed the file provided by the State and then spoke with appellant to "get his side of the story." According to Whitaker, he met with appellant "many times" and by his estimation, he met with him "more than five [times]," but "less than ten." Whitaker could not recall how many "private, confidential office sit[-]downs" he had with appellant or their length.
As for the underlying offense of burglary of a habitation, Whitaker testified that a witness saw "five black males breaking into [a] house" and notified law enforcement officers. When appellant and his four juvenile codefendants left the house, they "g[o]t into a stolen vehicle" and fled from law enforcement officers. Appellant and the four codefendants eventually exited the stolen car and fled on foot. While appellant was fleeing, he "r[an] into" a female, M.C. At the time, M.C. was walking through her apartment complex, saw appellant, and recognized him from school. Appellant asked M.C. if he could use her cellular-telephone charger and if he could "come inside." M.C. let him inside her apartment and "he provided [an] unsolicited confession, as to what he'd been doing and where he was coming from." Appellant told M.C.: "Hey, I was just involved in a burglary; and I'm running from the police." Law enforcement officers found appellant in M.C.'s apartment. Appellant gave a statement to law enforcement officers and identified two of his codefendants.
In discussing appellant's case with him, Whitaker asked appellant "what was going on" on the date of the offense and to "tell [him] what was happening and how he ended up in a car with four people that were going to commit a burglary." Whitaker could not recall what exactly appellant had said about why he was in the car, but Whitaker remembered that appellant confirmed that he was in the car that day.
Whitaker explained that in representing appellant, he did not hire an investigator and, generally, whether he hires an investigator depends on the case. He also did not independently "take any witness statements." Whitaker did tell appellant that if he wanted an investigator then Whitaker would "retain and utilize [such] services," but Whitaker also advised appellant that an investigator was not needed. And as the case progressed, Whitaker further determined that an investigator was unnecessary because the statements that appellant provided him and the statements given to law enforcement officers were "enough to paint a picture" so that Whitaker could evaluate appellant's potential defense. "Based off the totality of all circumstances involved, [Whitaker] did not believe that an investigator was necessary . . . ."
Whitaker noted that generally he does not interview witnesses himself; instead, he uses an investigator to interview witnesses "so that [he] ha[s] some level of distance when it actually comes to the trial."
Instead, Whitaker thoroughly reviewed the offense report by law enforcement officers which contained statements from five witnesses—the four juvenile codefendants and M.C. The witnesses' statements were detailed about "what happened," and there was no need to get any additional statements from the witnesses. Whitaker spoke with appellant about the statements made by the witnesses, and appellant said the "same thing." Appellant did not contradict any of the witnesses' statements or contest the information in the offense report, so Whitaker did not believe that the witnesses had been untruthful. Whitaker spoke to appellant about the content of the witnesses' statements, explaining: "This is what you're facing, this is what they've shown, this is what they've said," and appellant said: "That's what happened." Whitaker noted that appellant would have been in the "best position to know what was going on because he was there" and "he told [Whitaker] that the statements of the codefendants and the independent witness were what happened."
Whitaker further testified that the statement from M.C. was particularly "damning" because she was an "uninterested party" or an independent witness. Whitaker did not believe that M.C. was involved in the underlying offense because appellant stated that he had "r[un] into her in the parking lot of an apartment complex after fleeing the police" and the offense report stated that "five black males" were involved; M.C. was female. M.C. told law enforcement officers that she recognized appellant from school, which Whitaker confirmed with appellant. Whitaker told appellant that M.C. would likely testify for the State at trial.
As for the four codefendants who were involved in the underlying offense with appellant, Whitaker noted that they were also charged with the offense of burglary of a habitation. Whitaker stated that he likely researched the criminal history of these individuals, as is his normal practice in cases involving multiple codefendants. But because these codefendants were represented by counsel, Whitaker would not have expected to get any additional formal statements from them.
Whitaker further testified that he discussed with appellant that appellant was the only "adult" involved in the underlying offense, and in Whitaker's experience, the four juvenile codefendants would likely point their fingers at appellant and "back each other['s] story up," which would not "look good" for appellant. Whitaker told appellant that it was likely that these codefendants would testify against him at trial and that would be a "potential risk." And if the codefendants and M.C., the uninterested witness, testified to the same thing, "it would be a very difficult burden to overcome at trial" and appellant would "have an issue."
When asked whether he discussed "mere presence" with appellant, Whitaker responded: "[Y]es." And Whitaker stated that he and appellant discussed "law of parties." Appellant had told Whitaker that "he was at the house and was present but [he] did not commit the [offense of burglary of a habitation]." Thus, appellant's defensive theory was that he was there, and in the house, but he did not "participate in a burglary."
In response to appellant's defensive theory, Whitaker told appellant:
If that's the theory you would like to run in front of a jury, that you and four friends of yours rode to a house but you were there for some other
reason and the other four individuals were there to commit a [burglary] and the police showed up and you-all fled the scene, if that's the theory you'd like to run in front of a jury, we can do that.But appellant "did not want to run that in front of a jury[] because . . . [appellant] believed that theory was very flimsy." Whitaker did make clear that if appellant wanted the defensive theory "present[ed] to a jury," he would "gladly" do it, but he also wanted to make appellant aware that he did not think that the defense had much merit. This was because, as Whitaker explained, appellant would "admit[] to going into the house," and although he was not there to commit the offense of burglary, "the four people [that he was] with were there" to do so. And it would be difficult to explain to the jury why appellant was in the house.
According to Whitaker, he discussed with appellant "at great length" the evidence that would "undercut his claim that he was just merely present while the other individuals committed th[e] burglary." That evidence included the fact that appellant had fled from law enforcement officers even though "he claimed he was innocent." Appellant never told Whitaker that he remained in the car outside the house and that he did not go into the house.
Whitaker also discussed with appellant the State's burden of proof and the indictment. Whitaker "discussed the particular language in the indictment that explained what elements had to be met by the State . . . to prove up the burglary of a habitation charge." Whitaker stated that he was "certain that [he had] discussed with [appellant] the elements of the [offense] he was charged with."
Whitaker further explained to appellant the different options he had available in his case, including that appellant had the ability to "sign a plea agreement," "the ability to go to the [trial court] and ask . . . for some sort of punishment[] after pleading guilty," and that appellant could go to trial. Whitaker also explained to appellant "the levels of punishment." When Whitaker asked appellant if he wanted to go to trial, appellant said no. Appellant's main goal was to "avoid jail or prison." And appellant told Whitaker that he did not feel comfortable testifying. Appellant "knew what he was facing as a possible range of punishment and he knew that the facts that he had explained to [Whitaker] . . . and the defense . . . was not going to fly." Whitaker advised appellant that "deferred probation [was] by far the best option out of all . . . because it involve[d] no jail time; it involve[d] no prison time; and once it[] [was] completed, [appellant] w[ould] be able to have it sealed through a [p]etition for [n]ondisclosure." Appellant did not express any doubts that deferred adjudication was "what he wanted to do."
Whitaker also testified that when appellant entered his guilty plea, Whitaker had not yet begun any trial preparation. Whitaker, however, could have prepared appellant for trial, but he did not do so because appellant did not want to have a trial. Whitaker noted that he did not hire an investigator to interview any witnesses because appellant "made it very clear" that he did not want to go to trial. But if appellant had decided to go to trial, Whitaker would have hired an investigator and "done whatever needed to be done." Appellant and Whitaker did not get to that point though because appellant "agreed that a four-year deferred [adjudication] was not a bad thing."
Appellant testified that he had hired Whitaker to represent him. Appellant met Whitaker in the hallway and asked him for his business card. Appellant met with Whitaker at his next court date and explained "what[] [was] going on in [his] case." Appellant did not have a "sit[-]down interview" at Whitaker's office. Appellant only saw Whitaker when he came to court. In total, appellant paid Whitaker $500 to represent him.
According to appellant, Whitaker did not explain law of parties and did not discuss the indictment with him. Whitaker did not explain that appellant needed to have "knowledge prior to the burglary to be held accountable for it." When asked whether "when [he] pled guilty to th[e] offense, did . . . Whitaker tell [him] that [he] could go to trial," appellant responded: "No." Yet, appellant also stated that Whitaker told appellant that the trial court "ha[d] four years deferred probation on the table" and either appellant could "take" that or he could proceed with trial.
Appellant further testified that he did not know about the "accomplice witness rule" or that "blame-shifting statements by codefendants [would] only [be] admissible if testified to at trial," which Whitaker did not explain to him. Whitaker did not review with him the offense report, but he showed appellant photographs. The only thing that Whitaker told appellant was that the four juvenile codefendants would "point the finger" at appellant because he was an adult. Appellant told Whitaker that he remained in the passenger seat of the car while the four codefendants went into the house. Appellant felt pressured to plead guilty.
As for the underlying offense, appellant explained that on January 7, 2016, he went to school until about 1:50 p.m. Then, as he waited for the bus, the four codefendants asked if he wanted a ride home. Appellant knew the codefendants as acquaintances at school. There was no discussion of committing the offense of burglary before appellant got in the car with the codefendants, and appellant wanted a ride. After appellant and the four codefendants got in the car, the codefendants wanted to go to a neighborhood near the school. After five or ten minutes, the driver of the car said that the codefendants wanted to "stop by a friend's house right quick." The driver then stopped the car in front of a house and everyone but appellant exited. Appellant stayed in the front passenger seat of the car. According to appellant, before he and the four codefendants arrived at the house, he did not know "what was going on."
At the house, appellant saw the four codefendants go to the side of the lawn. Two of the codefendants then "jump[ed] the back fence of the house" and the other two codefendants came to the front of the house. The two codefendants in the front kicked in a front window. The four codefendants were in the house for about five or ten minutes and then came running out. Appellant stayed in the car because it was his "only ride to get back to the school" and he was "trying to catch . . . tryouts" for baseball. The four codefendants had laptops with them, they jumped in the car, and the car drove off. Appellant and his codefendants then saw law enforcement officers blocking the street and a patrol car following them. Appellant jumped out of the car while it was moving and jumped a fence. Appellant ran and eventually "jumped two fences to [a] apartment complex." After he "jumped the second apartment complex," he saw M.C. and asked her if he could charge his cellular telephone at her house so that he could call for a ride. M.C. agreed, and after appellant "got [his] phone back," he "sat on [a] staircase . . . trying to get another ride." Law enforcement officers arrived, and they spoke to M.C.
Appellant testified that he ran from law enforcement officers because he was the oldest person in the car and it would seem like he was forcing the four codefendants to do something. Appellant did not tell M.C. that he had "burglarized a house." According to appellant, he did not take any "stolen property," he did not serve "as a lookout," and he did not provide "any tools [to use] to break into the house."
On cross-examination, appellant stated that he was in the car with the codefendants because they were "riding to get something to eat" at a fast food restaurant—the "prior plan earlier [from that] day." And he left school with the codefendants around 2:00 p.m., but at 3:00 p.m. that day he had baseball practice at school. While at the house, he saw two of the codefendants, who appellant agreed were his friends, jump the back fence and he heard two windows break. According to appellant, one of the windows in the back had "burglar bars" on it, so the codefendants "went to the front one where there wasn't one at and they went through there." Appellant saw the two codefendants crawl through a window into the house. Appellant knew what was "happening inside" of the house. And the four codefendants had "property in their hands" when they ran out of the house. Appellant did not know how M.C. would know that he was involved with a burglary because he did not tell her. Appellant noted that Whitaker's testimony at the hearing was false.
Following the hearing, the trial court denied the requested habeas relief and issued findings of fact and conclusions of law. The trial court's findings of fact include:
1. "The Court finds that [appellant] is confined pursuant to the judgment and sentence of the 209th District Court of Harris County, Texas, in cause number 1494270, where [appellant] initially entered a plea of guilty without an agreed recommendation to the felony offense of burglary of [a] habitation and was placed on community supervision for a term of four years. Subsequent thereto, and after a hearing where
testimony was presented, [appellant's] community supervision was revoked on June 14, 2019, and the trial court assessed [his] punishment at confinement for five (5) years in the Texas Department of Criminal Justice-Correctional Institutions Division."
2. "On June 17, 2019, [appellant] filed a notice of appeal and a motion for new trial."
3. "The Court finds that Mr. Roy Whitaker represented [appellant] at the time of his initial guilty plea and when he was placed on deferred adjudication."
4. "The Court finds that [appellant] filed the instant application for writ of habeas corpus, with the assistance of counsel, on June 14, 2019 - the same date as his motion to adjudicate hearing and eventual sentence."
5. "The Court finds that [appellant] allege[d] three grounds for relief within his application but they all focus on the alleged ineffectiveness of . . . Whitaker. [Appellant] claims that Whitaker provided ineffective assistance by failing to:"
a. "Inform [appellant] that Precinct Four had issues with its property room;"
b. "Explain to [appellant] that his mere presence alone, without evidence of intentional participation, is insufficient to convict under the law of parties;"
c. "Explain to [appellant] that his conduct did not constitute the element[s] of burglary of habitation and he is therefore innocent;"
d. "Obtain records from the Precinct Four property room;" and
e. "Hire an investigator."
6. "[Appellant] claims in his motion for new trial that the filing of a writ of habeas corpus stays all trial proceedings - including a motion to adjudicate. . . . [Appellant] relies upon TEX. CODE CRIM. PROC. art.
11.32 as support for his contention. However, [appellant] neglected to cite to any case law to buttress his claim."
7. "The Court finds, based on the clerk's record, that Whitaker received discovery from the State, including a copy of the offense report, in addition to a copy of the 911 tape, other calls, and photographs."
8. "The Court finds, based upon a review of the offense report, the following:"
a. "[Appellant] was observed by a witness as one of five males to enter into a house and then to flee into a vehicle that subsequently evaded from law enforcement[;]"
b. "When that evading vehicle stopped [appellant] then began evading on foot from law enforcement prior to his arrest[;]"
c. "The vehicle that was used to evade from the police was a stolen vehicle[;]"
d. "[Appellant] was then found in an apartment of a friend whom he told that he was just involved in a burglary and was running from law enforcement[;]"
e. "[Appellant] subsequently provided a statement to law enforcement where he placed himself in the vehicle that fled the initial burglary scene, advised that he had fled on foot from police, and that he expressed remorse for committing the offense and getting one of his co-defendants involved[;]"
f. "[Appellant] further assisted law enforcement in identifying other suspects that participated in the burglary by identifying them in a school yearbook[;]" and
g. "[Appellant] then provided a self-serving statement that he was present during the incident but did not enter the residence to commit the burglary."
9. "The Court finds that from a review of the offense report that there appears to be sufficient evidence to support a conviction for burglary
of habitation - notwithstanding any information counsel discovered from his own investigation, including any conversations he might have had with [appellant]."
10. "The Court conducted a live evidentiary hearing on July 12, 2019. [Appellant] and [appellant's] initial plea attorney, . . . Whitaker, testified."
11. "The Court finds the testimony of . . . Whitaker to be credible."
12. "The Court finds the testimony of [appellant] to be incredible."
13. "The Court finds, based on the reporter's record, that [appellant] presented no evidence concerning any alleged issues with the Harris County Precinct Four property room at the hearing."
14. "The Court finds, based on the reporter's record, that Whitaker and [appellant] had several conversations regarding the offense and [appellant] did not contradict the version of events as outlined in the offense report . . . ."
15. "The Court finds, based on the reporter's record, that Whitaker discussed the applicant's options for disposition with [appellant] - including pleading and trial . . . ."
16. "The Court finds, based on the reporter's record, that [appellant] informed Whitaker that he did not want a trial . . . ."
17. "The Court finds, based on the reporter's record, that Whitaker discussed with [appellant] the law concerning 'mere presence' . . . ."
18. "The Court finds, based on the reporter's record, that Whitaker spoke with [appellant] regarding the requirement that accomplice witness testimony needed to be corroborated, and then confirmed there was corroboration . . . ."
19. "The Court finds, based on the reporter's record, that Whitaker spoke with [appellant] regarding [appellant's] defense and how it was Whitaker's belief that the defense would not be successful at a trial . . . ."
20. "The Court finds, based on the reporter's record, that Whitaker did not hire an investigator to assist in [appellant's] defense because he did not believe it was necessary or beneficial based upon the totality of all circumstances, including his conversations with [appellant] . . . ."The trial court's conclusions of law include:
21. "The Court finds, based on the reporter's record, that [appellant] did not tell Whitaker that he sat in the car as the applicant testified in the writ hearing. Instead, [appellant] told Whitaker that he did not go into the house to commit a burglary which was consistent with the statement attributed to [appellant] within the offense report . . . ."
22. "The Court finds that [appellant] fails to credibly prove that he would not have pleaded guilty but he would have insisted on going to trial."
1. "TEX. CODE CRIM. PROC. art. 11.32 concerns custody and potential bond of a habeas applicant and does not hinder a court from proceeding with a motion to adjudicate when a writ of habeas corpus has been filed."
2. "Also, a trial court may properly consider, in a single hearing, both a motion to proceed with an adjudication of guilt and an application for writ of habeas corpus."
3. "To prevail upon a post-conviction writ of habeas corpus, [appellant] 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). Conclusory allegations are not enough to warrant habeas relief. Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Even if sworn to, the allegations are insufficient to overcome the State's denials. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988)."
4. "[Appellant] fails to show that Whitaker's conduct fell below an objective standard of reasonableness and that, but for trial counsel's alleged deficient conduct, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d
53, 57 (Tex. Crim. App. 1986) (adopting the Strickland standard in Texas); . . . Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (defining the two-part Strickland standard)."
5. "With respect to an allegation that an attorney failed to conduct an adequate pre-trial investigation, or to hire an investigator, an applicant must show what a more in-depth investigation would have shown. . . . [Appellant] fails in his burden of proof."
6. "The totality of the representation afforded [appellant] by Whitaker was sufficient to protect his right to reasonably effective assistance of counsel in the primary case."
7. "To the extent that [appellant] is asserting that he is actually innocent, he fails to prove, by a preponderance of the evidence, that there is newly discovered evidence of [appellant's] innocence and that, by clear and convincing evidence, despite the evidence of guilt that supports the conviction, no reasonable juror could have found applicant guilty in light of the alleged new evidence."
8. "[Appellant] fails to overcome the presumption of regularity concerning his guilty plea. See Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); [s]ee also Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 200o)."
9. "[Appellant] fails to show that his initial guilty plea was unlawfully induced, made involuntarily, or made without an understanding of the nature of the charge against him and the consequences of his plea."
10. "[Appellant] fails to overcome the presumption that his initial guilty plea was knowingly and voluntarily made. Wilson v. State, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985)."
11. "In all things, [appellant] has failed to demonstrate that his conviction was improperly obtained."
Based on its findings of fact and conclusions of law, the trial court denied appellant's requested habeas relief.
Standard of Review
Generally, an applicant seeking post-conviction habeas relief must prove his claims by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In reviewing a trial court's decision to deny 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), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). In a Texas Code of Criminal Procedure article 11.072 habeas corpus proceeding, the trial court is the sole finder of fact. See Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011); Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). We afford almost total deference to the court's findings of facts that are supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Peterson, 117 S.W.3d at 819. We afford the same level of deference to the trial court's rulings on "applications of law to fact questions" if resolving those questions turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819 (internal quotations omitted). In such instances, we use an abuse-of-discretion standard. See Ex parte Garcia, 353 S.W.3d at 787-88. That said, if resolving those ultimate questions turns on an application of legal standards with no credibility issue, we review the determination de novo. See Ex parte Peterson, 117 S.W.3d at 819. We will affirm the trial court's decision if it is correct on any theory of law applicable to the case. Ex parte Primrose, 950 S.W.2d 775, 778 (Tex. App.—Fort Worth 1997, pet. ref'd).
Ineffective Assistance of Counsel
In a portion of his first issue, appellant argues that the trial court erred in denying him habeas relief because his trial counsel provided him with ineffective assistance rendering his guilty plea involuntary. Appellant asserts that his trial counsel provided him with ineffective assistance by incorrectly advising appellant that his "mere presence defense" was "flimsy" and by not conducting "some kind of independent investigation of the facts." (Emphasis omitted.) According to appellant, but for his trial counsel's errors, he would not have pleaded guilty.
To be valid, a plea must be entered voluntarily, knowingly, and intelligently. TEX. CODE CRIM. PROC. ANN. art. 26.13(b); Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008). A plea is not entered voluntarily and knowingly if made as the result of ineffective assistance of counsel. Ulloa v. State, 370 S.W.3d 766, 771 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). A defendant has a Sixth Amendment right to the effective assistance of counsel in guilty-plea proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). And "appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
"A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). To prevail, appellant must overcome that presumption. See Strickland, 466 U.S. at 689.
As for guilty pleas, the focus of our prejudice inquiry is "on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59 (1985). The key inquiry is whether appellant has shown that there is a reasonable probability that, but for counsel's errors, he would have pleaded "not guilty" and insisted on a trial. Id.; Lopez v. State, 428 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). In determining whether a defendant would not have pleaded guilty but for counsel's deficient advice, a court is to consider the circumstances surrounding the plea and the gravity of the alleged failure material to that determination. Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999); Ex parte Moreno, 382 S.W.3d 523, 528 (Tex. App.—Fort Worth 2012, pet. ref'd).
Here, the trial court found the testimony of Whitaker credible and the testimony of appellant not credible. See State v. Sheppard, 271 S.W.3d 281, 286 (Tex. Crim. App. 2008). It also found that Whitaker, while representing appellant, discussed the options available to appellant in his case, including the options of pleading or proceeding to trial, and appellant informed Whitaker that he did not want to go to trial. Whitaker received discovery from the State, including the offense report, and Whitaker and appellant had several conversations about the offense, with appellant not contradicting the version of the events stated in the offense report. The trial court also found that Whitaker discussed with appellant the law on "mere presence," "the requirement that accomplice witness testimony needed to be corroborated," and the fact that there was "corroboration" in appellant's case. (Internal quotations omitted.) It also found that Whitaker discussed appellant's defensive theory with him and Whitaker's belief that appellant's defense would not succeed at trial. Whitaker did not hire an investigator in appellant's case because he did not believe it was necessary or beneficial based on the totality of circumstances, including his conversations with appellant. Appellant never told Whitaker that he remained in the car while the other four juvenile codefendants went into the house to commit the offense of burglary. Instead, appellant stated that he went into the house, he just did not do so to commit the offense of burglary. The trial court found that appellant failed to prove that he would not have pleaded guilty and would have insisted on going to trial. The record supports the trial court's findings. Ultimately, the trial court concluded that appellant did not meet his burden to prove that his trial counsel's conduct fell below an objective standard of reasonableness and that, but for his trial court's alleged deficient conduct, there was a reasonable probability that the result of the proceeding would have been different. And appellant did not defeat the presumption that his guilty plea was voluntary.
Viewed in the light most favorable to the trial court's ruling, the record does not show that appellant met his burden to overcome the strong presumption that his trial counsel provided constitutionally effective assistance to appellant during the plea proceedings. Appellant also did not meet his burden to prove that there was a reasonable probability that but for his trial counsel's errors he would have pleaded "not guilty" and would have insisted on going to trial. Because appellant did not establish his claim for ineffective assistance of counsel, he failed to show, by a preponderance of evidence, that his guilty plea was involuntary. See Ex parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) ("It is [appellant's] burden to prove, by a preponderance of the evidence, that his attorney was constitutionally deficient before he might be entitled to relief on a writ of habeas corpus."). We thus hold that the trial court did not err in denying appellant habeas relief.
We overrule this portion of appellant's first issue.
Schlup Actual Innocence
In the remaining portion of his first issue, appellant argues that the trial court erred in denying him habeas relief because, but for his trial counsel's failure to provide effective assistance of counsel, he would have been found innocent as he "lacked the mens rea necessary to support a burglary conviction."
Generally, a claim of actual innocence is cognizable in a post-conviction habeas corpus proceeding. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996); Ex parte Agbezer, 479 S.W.3d 529, 531 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). A Schlup actual-innocence claim is a procedural claim in which a defendant's claim of innocence does not provide a basis for relief but is tied to a showing of constitutional error at trial. Ex parte Tuley, 109 S.W.3d 388, 390 (Tex. Crim. App. 2002). In other words, Schlup actual-innocence claims typically arise when a defendant is procedurally barred from independently making a claim of constitutional error. See Schlup, 513 U.S. at 316; see also Ex parte Aruizu, No. 01-15-00250-CR, 2016 WL 1590618, at *6 n.7 (Tex. App.—Houston [1st Dist.] Apr. 19, 2016, no pet.) (mem. op., not designated for publication). Thus, if a defendant establishes his innocence under the Schlup standard, a court may review a procedurally barred constitutional claim. See Ex parte Villegas, 415 S.W.3d 885, 886-87 (Tex. Crim. App. 2013); Ex parte Reed, 271 S.W.3d 698, 733-34 (Tex. Crim. App. 2008); see also Ex parte Aruizu, 2016 WL 1590618, at *6 n.7.
A Schlup actual-innocence claim may not be brought in an initial habeas application because, at this stage, a constitutional claim is not procedurally barred. Ex parte Agbezer, 479 S.W.3d at 531. Appellant's constitutional claim here—ineffective assistance of counsel—was not procedurally barred. In fact, it was asserted by appellant in his first application for writ of habeas corpus and considered by the trial court. See Ex parte Villegas, 415 S.W.3d at 887 (Schlup claim improper when defendant's ineffective assistance of counsel claims not procedurally barred); Ex parte Skelton, 434 S.W.3d 709, 733-34 (Tex. App.—San Antonio 2014, pet ref'd) (defendant "d[id] not need to pass through a procedural gateway" to present substantive claim of constitutional error and Schlup claim improper because habeas application was defendant's first application); Ex parte Aruizu, 2016 WL 1590618, at *6 n.7. Thus, appellant's reliance on a Schlup actual-innocence claim is misplaced.
We hold that the trial court did not err in denying appellant habeas relief.
We overrule the remaining portion of appellant's first issue.
Credibility
In his second issue, appellant argues that the trial court erred in denying him habeas relief because it erroneously found appellant's testimony not credible and did not engage in a meaningful analysis of credibility.
In a Texas Code of Criminal Procedure article 11.072 habeas corpus proceeding, the trial court is the sole finder of fact. See Ex parte Garcia, 353 S.W.3d at 788. We afford almost total deference to the trial court's findings of fact if supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d at 367; Ex parte Peterson, 117 S.W.3d at 819. Absent an abuse of discretion, the trial court's findings will not be disturbed on appeal. See Freeman v. State, 723 S.W.2d 727, 729 (Tex. Crim. App. 1986).
Here, the trial court found the testimony of Whitaker to be credible and the testimony of appellant to be incredible. The trial court's credibility findings are supported by the record. See Ex parte Garcia, No. 08-11-00232-CR, 2013 WL 1182211, at *8 (Tex. App.—El Paso Mar. 20, 2013, no pet.) (not designated for publication) (where record supported trial court's credibility findings, trial court did not abuse its discretion). Appellant provides no pertinent authority to support his assertion on appeal that the trial court must have given a specific explanation "as to why or how [it] reached [its] credibility findings." A trial court's decision to accept a trial counsel's testimony as credible and a defendant's testimony as not, even where the trial court is presented with conflicting evidence, does not constitute an abuse of discretion on the trial court's part. See Ex parte Vetcher, Nos. 05-18-00224-CR to 05-18-00226-CR, 2018 WL 4103211, at *8 (Tex. App.—Dallas Aug. 29, 2018, no pet.) (mem. op., not designated for publication); Ex parte Karlson, 282 S.W.3d 118, 130 (Tex. App.—Fort Worth 2009, pet. ref'd); see also Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) ("The court may consider the interest and bias of any witness and is not required to accept as true the testimony of the accused . . . .").
We conclude that the trial court did not err in exercising its role as a fact-finder and in assessing the credibility of Whitaker and appellant. Thus, we hold that the trial court did not err in denying appellant habeas relief.
We overrule appellant's second issue.
We need not address appellant's third issue. See TEX. R. APP. P. 47.1. That issue is fully and appropriately addressed by the Court in appellant's related appeal. See Barnes v. State, No. 01-19-00630-CR, slip op. at 10-13 (Tex. App.—Houston [1st Dist.] July 30, 2020, no pet. h.) (mem. op., not designated for publication) (appeal after trial court adjudicated appellant guilty of felony offense of burglary of habitation and assessed punishment at confinement for five years).
Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice Panel consists of Justices Lloyd, Landau, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).