Ex Parte Woodrow Miller ( 2008 )

Affirmed and Memorandum Opinion filed April 22, 2008

Affirmed and Memorandum Opinion filed April 22, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00532-CR

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EX PARTE WOODROW MILLER

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 876,249A

M E M O R A N D U M   O P I N I O N

Appellant, Woodrow Miller, appeals the trial court=s order denying his application for writ of habeas corpus.  We affirm.

Factual and Procedural Background

 Following plea bargain negotiations, appellant pled nolo contendere to the offense of indecency with a child.  In accordance with the plea bargain, appellant was placed on seven years= deferred adjudication probation on May 20, 2002.

On June 19, 2002, appellant filed a pro se notice of appeal from the May 20, 2002 order.  On June 27, 2002, appellant filed a motion to withdraw the notice of appeal with the trial court.  The trial court granted the motion by order dated June 27, 2002.  The District Clerk did not forward the appeal because the trial court granted the motion to withdraw the notice of appeal.  In June 2004, appellant filed an application for writ of mandamus, claiming the Harris County District Clerk, by refusing to forward his 2002 appeal, had violated a mandatory duty to forward appellant=s notice of appeal.  A panel of this court granted relief on July 29, 2004.  The Harris County District Clerk then forwarded the record for appellant=s 2002 appeal to this court.  A panel of this court issued a memorandum opinion on September 30, 2004, dismissing appellant=s appeal based on appellant=s motion to withdraw his notice of appeal.  Miller v. State, No. 14-04-00740-CR, 2004 WL 2187136, at *1 (Tex. App.CHouston [14th Dist.] Sept. 30, 2004, pet. ref=d) (mem. op., not designated for publication).

On March 10, 2006, appellant filed a second notice of appeal complaining again of the May 20, 2002 order and the First Amended Conditions of Community Supervision, which were signed by the trial judge on March 9, 2006.  A panel of this court issued a memorandum opinion on April 27, 2006, dismissing appellant=s appeal because we did not have jurisdiction to consider the case.  Miller v. State, No. 14-06-00293-CR, 2006 WL 1140661, at *1 (Tex. App.CHouston [14th Dist.] April 27, 2006, pet. ref=d) (mem. op., not designated for publication).

On September 8, 2006, appellant filed a post-trial application for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005).  The trial court orally denied appellant=s application without a hearing on December 14, 2006.  On March 15, 2007, appellant filed another petition for writ of mandamus with this court complaining the trial court failed to enter a written order denying relief.  On May 27, 2007, a panel of this court conditionally granted appellant=s petition for a writ of mandamus, and ordered the trial court to issue a written order on appellant=s application for writ of habeas corpus.  In re Woodrow Miller, No. 14-07-00222-CV, 2007 WL 1500906, at *1 (Tex. App.CHouston [14th Dist.] May 24, 2007, orig. proceeding) (mem. op., not designated for publication).

On June 1, 2007, the trial court signed a document titled AFindings of Fact and Conclusions of Law,@ including a written order denying appellant=s habeas corpus application.  The trial court identified the issues appellant raised as: (1) the indictment to which appellant pled failed to allege an offense; (2) the applicant did not plead guilty or no contest; (3) no evidence supported the indictment; and (4) the applicant did not appear before the trial judge who signed the plea papers.  While not mentioned in the trial court=s AFindings of Facts and Conclusions of Law,@ appellant also asserted he was entitled to relief because he received ineffective assistance of counsel.  Appellant attached the affidavit of Debra L. Smith in support of his contention his trial counsel failed to properly investigate his case.  This appeal followed the trial court=s June 1, 2007 order denying appellant=s application for writ of habeas corpus.

Discussion

Appellant raises six issues in this appeal.  First, appellant contends there is no evidence supporting the trial court=s 2002 order placing him on seven years= deferred adjudication probation for the offense of indecency with a child.  Second, appellant argues the trial court did not have subject matter jurisdiction.  Third, appellant asserts the trial judge who signed the order of deferred adjudication probation did not have the authority to sign that order.  Fourth, appellant argues this court unlawfully dismissed his direct appeal. Fifth, appellant contends he did not sign a jury waiver. Finally, appellant claims he received ineffective assistance of counsel.  We address appellant=s first five issues together and separately address only his ineffective assistance of counsel claim.

I.        The Standard of Review

In reviewing the trial court=s decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the to the trial court=s ruling.  Ex parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007).  We will uphold the trial court=s ruling absent an abuse of discretion.  Id. In conducting our review, we afford almost total deference to the trial judge=s determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor.  Id. We afford the same amount of deference to the trial judge=s application of law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor.  Id.  If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo.  Id.

II.       Appellant May Not Use The Writ Of Habeas Corpus In Place Of A Direct Appeal

Appellant filed his post-trial application for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 11.072.  In response, the State contends Article 11.072 precludes appellant from raising his first five issues.  We agree with the State.

Article 11.072 Aestablishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.@  Tex. Code Crim. Proc. Ann. art. 11.072 ' 1.  In addition, Aan application may not be filed under [article 11.072] if the applicant could obtain the requested relief by means of an appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure.@  Id. ' 3.  This prohibition even extends to most constitutional claims if the applicant had the opportunity to adequately raise the issue on direct appeal.  See Ex parte Townshend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004) (addressing an appeal from the denial of a writ of habeas corpus brought pursuant to Tex. Code Crim. Proc. Ann. art. 11.07).

Each of appellant=s first five issues could have been raised and adequately addressed on direct appeal.  The fact appellant sought and received a voluntary dismissal of his direct appeal in 2004 does not impact our decision as all that is required is that appellant could have raised the issues on direct appeal.  Accordingly, we overrule appellant=s first five issues.

III.      Appellant Failed To Establish He Received Ineffective Assistance of Counsel

In his sixth issue, appellant contends he received ineffective assistance of counsel during his 2002 court appearance when he entered his plea of nolo contendere.  Initially, appellant asserts he was totally deprived of counsel during a critical stage of the trial when, according to appellant, the trial judge instructed appellant to refrain from speaking to his counsel.  Appellant also argues his counsel was ineffective because he failed to adequately investigate appellant=s case.

A.      Is Appellant Precluded From Pursuing His Ineffective Assistance of Counsel Claim?

As discussed above, claims raised and rejected on direct appeal are generally not cognizable on habeas corpus.  However, an exception to this doctrine exists when direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathered in a habeas corpus proceeding.  Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006).  Therefore, even if an appellate court rejected a claim of ineffective assistance of counsel on direct appeal,  a defendant may re-urge consideration of his ineffective assistance claim in a later habeas corpus proceeding if he provides additional evidence to prove his claim.  Id. at 547 n.26 (citing Ex parte Nailor, 149 S.W.3d 125, 130B31 (Tex. Crim. App. 2004)).  In his habeas corpus proceeding, appellant provided additional evidence in the form of the affidavit of Debra King.  Therefore, appellant was not precluded from asserting his ineffective assistance of counsel claim in his habeas corpus proceeding.

B.      The Standard of Review

In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it 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. Id. 

An accused is entitled to reasonably effective assistance of counsel.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 814.  When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  This means an appellate court ordinarily should not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).  If a criminal defendant can prove trial counsel=s performance was deficient, he must still affirmatively prove he was prejudiced by counsel=s actions.  Thompson, 9 S.W.3d at 812.  This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally.  Id.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

C.      Appellant Did Not Establish By A Preponderance Of The Evidence That He Was Totally Deprived of Trial Counsel

Appellant initially contends he was totally deprived of counsel during a critical stage of the trial when, according to appellant, the trial judge instructed appellant to refrain from speaking to his counsel.  A review of the reporter=s record from the May 20, 2002 proceedings reveals this claim is without merit.  Instead, the record reveals the trial court never instructed appellant not to talk to his lawyer, but only told appellant to let his lawyer represent him and to talk to the court through his lawyer.^[1]

D.      Appellant Did Not Establish By A Preponderance Of The Evidence That His Trial Counsel=s Performance Was Deficient

Appellant also contends he received ineffective assistance of counsel because appellant=s trial counsel failed to adequately investigate his case.  Specifically, appellant claims his trial counsel failed to speak to credible witnesses who possessed knowledge relevant to the case. In support of this argument, appellant attached the affidavit of Debra King. In her affidavit, Ms. King stated: AI was subpoenaed by Woodrow W. Miller to be a witness for him at his trial on his case with [G. H.].  Mr. Kirby Taylor, who is [sic] Mr. Miller=s lawyer, never called me or write [sic] me or in any way contact [sic] me to discuss the case.@  Later in her affidavit, she stated: AMr. Miller did discuss the case with me often and indicated strongly he wanted me to come to trial and testify on his behalf.@^[2]

A criminal defense lawyer has a duty to make an independent investigation of the facts of a case, which includes seeking out and interviewing potential witnesses.  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).  A breach of the duty to investigate may result in a finding of ineffective assistance Awhere the result is that any viable defense available to the accused is not advanced.@  Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).  In defining the duty to investigate, the United States Supreme Court has stated that Acounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.  In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel=s judgments.@  Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.

Here, the record is silent as to appellant=s trial counsel=s reason for not directly contacting Ms. King.  However, the record does reveal appellant=s trial counsel learned enough about Ms. King to decide to subpoena her to testify at appellant=s trial.  Applying a heavy measure of deference to appellant=s trial counsel=s decision not to directly contact Ms. King, we hold the record demonstrates his decision to not do so was reasonable under the circumstances.  Therefore, appellant has not established by a preponderance of the evidence that his trial counsel=s performance was deficient.

Based on our review of the record as a whole, we hold appellant has failed to show by a preponderance of the evidence he received ineffective assistance of counsel.  We overrule appellant=s sixth issue on appeal.

Conclusion

Having overruled each of appellant=s issues on appeal, we hold the trial court did not abuse its discretion when it denied appellant=s application for writ of habeas corpus.  Accordingly, we affirm the trial court=s order denying appellant relief on his application for writ of habeas corpus.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed April 22, 2008.

Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The trial judge=s actual comments to appellant consisted of the following:

Mr. Miller, let me - - I don=t know ya=ll because I=m just here this week.  I see you=re taking a very active role there with your lawyer at this time in the absence of the jury.  I don=t know how active a role you intend to take in front of the jury; but when I see someone that is as active as you are, it causes me some concern.

You want to talk to me or not through your lawyer?

* * *

You have a competent lawyer to represent you.  I will not -- you know, a person has a right to represent himself if he so desires after hearing and all; but when you have a lawyer, you let your lawyer represent you.  You don=t represent yourself.  You understand?

^[2]  The State contends appellant did not preserve this argument of ineffective assistance of counsel for appellate review.  According to the State, appellant did not allege this contention in his habeas corpus application or otherwise bring it to the trial court=s attention.  We disagree.  In his habeas corpus application, appellant alleged lack of pretrial preparation by his defense counsel and attached Ms. King=s affidavit as an exhibit.  In the table of contents for his exhibit appendix appellant stated: AAffidavit of Debra L. Smith stating Kirby Taylor never attempted to contact her to discuss the case whereas she would have testified that [appellant] had dropped [G. H.] there to spend the weekend, and that [G. H.] was her usual self.@  This was sufficient to apprise the trial court of appellant=s contention he received ineffective assistance of counsel due to lack of pre-trial investigation or preparation.