Opinion
NO. 03-17-00393-CR NO. 03-17-00394-CR
01-19-2018
Bruce Frank Ruark, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NOS. 05-1175-K277-A & 05-1176-K277-A
HONORABLE STACEY MATHEWS, JUDGE PRESIDING MEMORANDUM OPINION
In 2007, Bruce Frank Ruark pleaded guilty to four counts of the sale of securities by an unregistered dealer or agent, a third-degree felony, see Tex. Rev. Civ. Stat. art. 581-29(A), and four counts of the sale of unregistered securities, also a third-degree felony, see id. art. 581-29(B). The trial court ordered Ruark to be placed on deferred-adjudication community supervision for ten years and imposed other conditions, including the payment of restitution. In 2017, Ruark filed an application for writ of habeas corpus in each cause, contending that his pleas were involuntary because he received ineffective assistance of counsel. See Tex. Code Crim. Proc. art. 11.072. The trial court denied Ruark's applications, and this appeal followed. See id. art. 11.072, § 8. We will affirm the trial court's orders denying Ruark's applications for writ of habeas corpus.
Trial court cause number 05-1175-K277, appellate cause number 03-17-00394-CR.
Trial court cause number 05-1176-K277, appellate cause number 03-17-00393-CR.
STANDARD OF REVIEW
A denial of habeas corpus relief is reviewed under an abuse of discretion standard. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Hernandez-Prado v. State, No. 03-15-00290-CR, 2016 WL 3144113, at *4 (Tex. App.—Austin May 26, 2016, no pet.) (mem. op., not designated for publication). A habeas court abuses its discretion, and the appellate court will reverse the habeas court's determination, if it is "arbitrary or unreasonable." State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A habeas court does not abuse its discretion when its determination is within "the zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
When reviewing a habeas court's denial of an application for a writ of habeas corpus, an appellate court must view the facts in the light most favorable to the habeas court's determination and uphold that determination absent an abuse of discretion. Ex parte Wheeler, 203 S.W.3d at 324; Hernandez-Prado, 2016 WL 3144113, at *4. In habeas proceedings, "'the fact finder is the exclusive judge of the credibility of the witnesses.'" Hernandez-Prado, 2016 WL 3144113, at *4 (quoting Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996)). In a habeas proceeding brought under article 11.072, "the trial court is the sole finder of fact," and an appellate court affords "almost total deference to a trial court's factual findings when supported by the record, especially when those findings are based upon credibility and demeanor." State v. Ambrose, 487 S.W.3d 587, 596 (Tex. Crim. App. 2016); Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref'd). "'When the trial court's findings of fact in a habeas corpus proceeding are supported by the record, they should be accepted by the reviewing court.'" Ex parte Karedia, Nos. 03-11-00831—00832-CR, 2013 WL 599555, at *3 (Tex. App.—Austin Feb. 15, 2013, pet. ref'd) (mem. op., not designated for publication) (quoting Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006)).
DISCUSSION
In his sole appellate issue, Ruark contends that his pleas were involuntary because his counsel provided ineffective assistance.
The validity of a guilty plea is determined by "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970); see Ex parte Pena, No. 03-16-00735-CR, 2017 WL 3222412, at *4 (Tex. App.—Austin July 28, 2017, no pet.) (mem. op., not designated for publication). "A guilty plea is not knowing or voluntary if made as a result of ineffective assistance of counsel." Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Ex parte Karedia, 2013 WL 599555, at *5 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
The two-part Strickland test is applied when the challenge to the guilty plea is based on ineffective assistance of counsel. See, e.g., Hill v. Lockhart, 474 U.S. 52, 58 (1985); Strickland v. Washington, 466 U.S. 668, 687-94 (1984); Ex parte Pena, 2017 WL 3222412, at *4. To prevail on a writ of habeas corpus, an applicant must establish that (1) counsel's performance was deficient and (2) counsel's deficient performance caused the applicant prejudice. Ex parte Chandler 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 694); Ex parte Pena, 2017 WL 3222412, at *4. An applicant must prove both prongs of the Strickland test by a preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Ex parte Pena, 2017 WL 3222412, at *4. We indulge "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (quoting Strickland, 466 U.S. at 689). Failure by the applicant to establish either deficient performance or prejudice defeats the claim of ineffectiveness of counsel, see Perez, 310 S.W.3d at 893, and "negates a court's need to consider the other prong," see Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
"'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). For this reason, "[d]irect appeal is usually an inadequate vehicle for raising [an ineffectiveness] claim because the record is generally undeveloped." Id.; see id. ("A Strickland claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim.") (quotation marks omitted). Although Ruark is raising his ineffectiveness claim in a habeas proceeding, the record before us contains no reporter's record and no indication that Ruark's trial counsel was given the opportunity to explain his actions. Therefore, we will not determine that Ruark's trial counsel's performance was deficient unless his conduct "was so outrageous that no competent attorney would have engaged in it." Garcia, 57 S.W.3d at 440. Finally, we review trial counsel's conduct "with great deference, without the distorting effects of hindsight." Goodspeed, 187 S.W.3d at 392.
Here, Ruark contends that his trial counsel provided ineffective assistance in not informing Ruark of two possible defenses. Ruark further contends that his guilty pleas were involuntary because he would not have pleaded guilty if he had known of these defenses. The defenses that Ruark alleges are (1) "corporate criminal liability" and (2) a violation of the Ex Post Facto Clause. We will address each of these alleged defenses in turn.
Corporate Criminal Liability
Ruark first argues that his trial counsel should have informed him that the corporation Ruark was serving as an independent contractor bore the criminal responsibility for failing to register the securities that Ruark sold, not Ruark himself. According to Ruark, the corporation or one of its officers had the primary responsibility to register the securities. See Tex. Penal Code § 7.23(b) ("An agent having primary responsibility for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him."). Ruark argues that, because he was not an agent having primary responsibility for registering the securities, he could not be prosecuted for failing to register them, and his trial counsel should have told him so.
However, Ruark was not prosecuted for failing to register securities. That is, he was not prosecuted for an omission. Instead, he was charged with the sale of unregistered securities and with the sale of securities by an unregistered dealer or agent. See Tex. Rev. Civ. Stat. art. 581-29(A), (B). As the trial court noted in its findings of fact and conclusions of law,
[Ruark] was not charged with failure to register the securities in question; instead, [Ruark] was charged with the act of selling securities that had not been registered . . . . The question of whose responsibility it was at Mobile Billboards to ensure that its securities were duly registered is irrelevant to [Ruark's] prosecution. [T]he Texas Securities Act makes it clear that it was [Ruark's] duty to refrain from selling (or offering to sell) any securities that were not duly registered . . . .In addition, although Ruark was also charged with the sale of securities by an unregistered dealer or agent, his appellate brief does not explain how it was the corporation's responsibility, rather than his own responsibility, to register Ruark as a dealer or agent under the Texas Securities Act.
Because Ruark was charged with the sale of unregistered securities and with the sale of securities by an unregistered dealer or agent, not with failing to register securities, we conclude that section 7.23(b) of the Texas Penal Code would not have provided Ruark with a viable defense at trial. Moreover, Ruark's counsel was not given the opportunity to explain his conduct, and we cannot conclude that counsel's conduct in failing to advise Ruark of the "corporate criminal liability" defense was so outrageous that no competent attorney would have engaged in it. Therefore, we cannot conclude that Ruark's trial counsel's conduct in failing to advise Ruark of this alleged defense constituted deficient performance.
Ex Post Facto Clause
Ruark next argues that his trial counsel should have informed him that Ruark's prosecution violated the Ex Post Facto Clause. See U.S. Const. art. I, § 10. According to Ruark, it was not foreseeable that the State would classify the "business opportunities" he was selling as "securities." Therefore, argues Ruark, the State's classification of the "business opportunities" as "securities" was an "interpretation" that "enlarges criminal liability" in violation of the Ex Post Facto Clause.
However, the Texas Securities Act defines "security" to include any "evidence of indebtedness" and any "investment contract." See Tex. Rev. Civ. Stat. art. 581-4(A). The indictments alleged that Ruark sold and dealt in "an investment contract and evidence of indebtedness." Ruark has not cited any authorities indicating that the definition of "security" has recently been changed or that the "business opportunities" that he sold were not "securities," "evidence of indebtedness," or "investment contracts."
Ruark's trial counsel would have been in a better position than this Court to evaluate the State's evidence against Ruark when advising Ruark regarding a plea agreement, and, as mentioned above, the record before us does not indicate that counsel was ever given the opportunity to explain his conduct. Given the record before us, we cannot conclude that Ruark's prosecution under the Securities Act was unforeseeable or violated the Ex Post Facto Clause. See Goodspeed, 187 S.W.3d at 392 ("A Strickland claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim.") (quotation marks omitted). Moreover, we cannot conclude that counsel's conduct in failing to advise Ruark of the alleged Ex Post Facto Clause defense was so outrageous that no competent attorney would have engaged in it, and so we cannot conclude that Ruark's trial counsel's conduct in failing to advise Ruark of this alleged defense constituted deficient performance.
Having concluded that Ruark's trial counsel's conduct in failing to advise Ruark of the defenses that Ruark raises on appeal did not constitute deficient performance, we further conclude that the trial court did not abuse its discretion in rejecting Ruark's claim of ineffective assistance of counsel and denying Ruark's applications for writ of habeas corpus. Accordingly, we overrule Ruark's sole appellate issue.
CONCLUSION
We affirm the trial court's orders denying Ruark's applications for writ of habeas corpus.
/s/_________
Scott K. Field, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: January 19, 2018 Do Not Publish