Ex Parte Austin Lyman Bishop ( 2018 )

Opinion issued October 23, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00923-CR
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EX PARTE AUSTIN LYMAN BISHOP, Appellant
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Case No. 17486A
MEMORANDUM OPINION
Appellant, Austin Lyman Bishop, challenges the trial court’s order denying
his application for a writ of habeas corpus and finding that “he is manifestly entitled
to no relief.” In five grounds, appellant contends that the trial court erred because
(1) he was prosecuted under a version of Penal Code section 33.021(c) that the Texas
Court of Criminal Appeals subsequently narrowed, thus entitling him to a new trial;
(2) section 33.021(c) is unconstitutional; (3) he is actually innocent of the underlying
felony offense of online solicitation of a minor; (4) he entered his guilty plea
involuntarily; and (5) his trial counsel rendered ineffective assistance. We affirm.
Background
On August 17, 2015, Sergeant Patricia Griffin with the Child Exploitation
Unit of the Office of the Texas Attorney General, representing herself as fifteen-year
old female “Beth Nightly,” responded to an advertisement on the Internet website
www.craigslist.com posted by appellant. The advertisement was titled “Need a
young girl for fun (Austin),” provided details of appellant’s preference in a female,
and included photographs of appellant and his Internet contact information. Griffith
responded to the advertisement through electronic mail by stating “sup . . . im 15 in
Brenham . . . nice pics.” Appellant responded to Griffith’s message the same day.
The conversation between Griffith and appellant continued on August 18,
2015, through electronic mail and then changed to text messaging between phone
numbers. Appellant quickly turned the conversation sexual in nature, and, at
appellant’s suggestion, Griffith and appellant agreed to meet to have sexual
intercourse at a park in Brenham, Texas. Griffith provided directions to the
agreed-upon meeting location to appellant. After appellant notified Griffith of his
arrival, appellant was arrested in the parking lot of the park on August 18, 2015.
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On December 8, 2015, appellant was charged with the felony offense of online
solicitation of a minor. See TEX. PENAL CODE ANN. § 33.021(c) (West Supp. 2016).
The indictment charged that appellant, “with the intent that ‘Beth Nightly,’ a minor,
would engage in sexual intercourse with [appellant], knowingly solicit[ed] by
electronic mail the said ‘Beth Nightly,’ to meet appellant[.]” On March 31, 2016,
appellant pleaded guilty to the offense alleged in the indictment. The trial court
deferred an adjudication of guilt and placed appellant on community supervision for
a term of ten years.
On January 20, 2017 and again on July 6, 2017, a notice to show cause was
issued to appellant to determine whether his probation should be continued,
modified, or revoked. On September 1, 2017, the State filed its motion to revoke
probation and adjudicate.
On October 2, 2017, appellant filed a verified application for writ of habeas
corpus, contending that the deferred adjudication community supervision order was
illegal because (1) he was prosecuted under a version of Penal Code section
33.021(c) later narrowed by the Court of Criminal Appeals; (2) section 33.021(c) is
unconstitutional; (3) he is, as a matter of law, actually innocent; (4) his guilty plea
was involuntary; and (5) he received ineffective assistance of counsel. On October
25, 2017, the trial court ordered trial counsel to file a response to each allegation of
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ineffective assistance alleged in appellant’s application. Trial counsel thereafter
filed his affidavit.
On January 17, 2018, the trial court entered an order denying appellant’s
application for habeas relief, finding that appellant was “manifestly entitled to no
relief” and that his application was frivolous.
Standard of Review
An applicant seeking post-conviction habeas corpus relief must establish, by
a preponderance of the evidence, that the facts entitle him to relief. See Ex parte
Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003), overruled on other grounds
by Ex parte Lewis, 219 S.W.3d 355 (Tex. Crim. App. 2007); State v. Webb, 244
S.W.3d 543, 547 (Tex. App.—Houston [1st Dist.] 2007, no pet.). We review a trial
court’s ruling on a habeas corpus application for an abuse of discretion. See Kniatt
v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). A trial court abuses its
discretion when it acts without reference to any guiding rules or principles or when
it acts arbitrarily or unreasonably. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref’d).
In reviewing a trial court’s decision to deny habeas relief, we review the facts
in the light most favorable to the trial court’s ruling. Ex parte Peterson, 117 S.W.3d
at 819. The habeas court’s determination that an application is frivolous on its face
and that the applicant is manifestly not entitled to relief, as is the case here, is
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reviewed de novo. See Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.—
Houston [1st Dist.] 2014, no pet.).
Penal Code Section 33.021
In his first ground, appellant contends that he is entitled to a new trial under
Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S. Ct. 211 (1965).
Specifically, he argues that because he was tried under a version of Penal Code
section 33.021(c) that was subsequently narrowed by the Texas Court of Criminal
Appeals in Ex parte Ingram, it is unclear whether the trial court judged him by an
unconstitutional construction of the statute. See 533 S.W.3d 887 (Tex. Crim. App.
2017).
In Shuttlesworth, the defendant was convicted of violating a city ordinance,
and the conviction was affirmed on appeal. See Shuttlesworth, 382 U.S. at 88, 86 S.
Ct. at 217. Two years later, the Alabama Court of Appeals gave a limiting
construction to the ordinance in another case before the court. See id. at 91, 86 S.
Ct. at 217. The United States Supreme Court in Shuttlesworth concluded that
because it was “unable to say that the Alabama courts in this case did not judge the
petitioner by an unconstitutional construction of the ordinance,” it reversed the
defendant’s conviction. Id. at 94, 86 U.S. at 214.
In Ex parte Ingram, the Texas Court of Criminal Appeals considered the
defendant’s challenge to the constitutionality of the pre-2015 version of the online
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solicitation statute. See id. at 895–97. The defendant argued that the pre-2015
version of the statute created an overbreadth problem by allowing the criminal
provisions of the online solicitation statute to apply to protected speech between
adults. See id. The version of the statute that applied to Ingram (and to appellant)
defines “minor as:
(A) an individual who represents himself or herself to be younger than
17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years
of age.”
Id. (citing pre-2015 version of § 33.021(a)(1)). In construing the meaning of the
above paragraph (A) of this section narrowly, the Ingram court decided that the
Legislature intended that “represents” means “in view of the totality of the speaker’s
statements, (1) the speaker intended to state his or her age as a matter of fact, to be
accepted as true and (2) a reasonable person in the listener’s shoes would perceive
the speaker to be stating his or her age as a fact, to be accepted as true.” Id. at 897.
First, we observe that the Ingram court construed the statute; it did not change
any of its terms. Nevertheless, relying on Shuttlesworth, appellant contends that
because it is unclear whether his conviction rests on an overbroad interpretation or
the allegedly narrowed interpretation of the statute in Ingram, he is entitled to a new
trial. We are unaware of any Texas court—and appellant has not directed us to
any—that has recognized a claim that a high court’s interpretation that statutory
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language is overbroad therefore makes a criminal defendant’s prosecution under the
statute unconstitutional. See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.
2010) (noting that if complaint is one that is not cognizable, appellate courts should
refuse to consider merits of claim). Moreover, the procedural history in Shuttleworth
is much different than that present in this case. Unlike appellant, the defendant in
Shuttlesworth did not plead guilty to the crime with which the State charged him.
See Shuttlesworth, 382 U.S. at 88, 86 S. Ct. 212 (stating defendant was tried in bench
trial). Because the appeal in Shuttlesworth was based on a fully developed record,
the Supreme Court, in reviewing the conviction, could determine whether the
evidence supported the factfinder’s findings based on an interpretation of the
ordinance as judicially construed. See Ex parte Shroff, __ S.W.3d __, __, 2018 WL
4100239, at *3–4 (Tex. App.—Beaumont Aug. 29, 2018, pet. ref’d) (concluding
defendant who pleaded guilty to online solicitation of minor could not show that he
was convicted under interpretation of statute that fell outside of Ingram and failed
to establish that he was entitled to habeas relief). Here, in contrast, appellant’s
conviction rests on a judicial confession admitting that he committed the crime of
soliciting a minor online. See id. Because appellant pleaded guilty before his trial,
and therefore never tested the evidence the State might have used in a trial to gain
his conviction, he cannot currently show that the conviction rested on an
interpretation of the online solicitation statute that fell outside the interpretation
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adopted in Ingram. See id.; see also Ex parte McClellan, 542 S.W.3d 558, 560 (Tex.
Crim. App. 2017). We overrule appellant’s first ground.
In his second ground, appellant contends that section 33.021 is
unconstitutional. In Leax v. State, the Texas Court of Criminal Appeals held that the
statute is constitutional. 541 S.W.3d 126, 128 (Tex. Crim. App. 2017).1
Accordingly, we overrule appellant’s second ground.
Ineffective Assistance of Counsel
In his fifth ground, appellant contends that the trial court erred in denying his
application because trial counsel was ineffective for not informing him of defenses
available to him and that, had counsel so informed him, he would not have pleaded
guilty.
The Strickland two-pronged test for ineffective assistance of counsel applies
in the plea context. See Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366, 370
(1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Ex parte Roldan, 418 S.W.3d 143, 145 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (citing Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th
Dist.] 2013, no pet.)). To establish ineffective assistance of counsel, the applicant
1
The Court of Criminal Appeals delivered its opinion in Leax v. State on October 18,
2017, sixteen days after appellant filed his application for writ of habeas corpus.
The Court issued its mandate on November 13, 2017. Appellant acknowledges in
his brief that, under these circumstances, he is not entitled to relief on this ground.
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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 proceeding would have been different. See Strickland,
466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Salinas v. State, 163 S.W.3d 734,
740 (Tex. Crim. App. 2005). Failure to show either deficient performance or
sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697,
104 S. Ct. at 2069. The record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Where the record does not do so, counsel is presumed effective. See id.Appellant provided no affidavits or any other evidence to support his
argument as to this ground. Appellant’s uncorroborated assertion that trial counsel
failed to inform him of available defenses is insufficient to demonstrate deficient
performance. See Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st
Dist.] 2006, no pet). Further, the trial court also had before it trial counsel’s affidavit
which directly contradicted appellant’s argument. See Ex parte Skelton, 434 S.W.3d
709, 717 (Tex. App.—San Antonio 2014, pet. ref’d) (“The habeas court is the sole
finder of fact in an article 11.072 habeas proceeding, and we afford almost total
deference to its determinations of historical fact that are supported by the record.”);
see also Ex parte Thompson, 153 S.W.3d 416, 425 (Tex. Crim. App. 2005) (en banc)
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(“[A] reviewing court will defer to the factual findings of the trial judge even when
the evidence is submitted by affidavit[.]”). Appellant has not shown that trial
counsel’s performance was deficient. See Strickland, 466 U.S. at 686, 104 S. Ct.
2064. We overrule appellant’s fifth ground.
Voluntariness of Plea
In his fourth ground, appellant contends that his guilty plea was involuntary.
He argues that because his trial counsel “did not inform him that he had a defense
based either on Ms. Nightly not being a minor, on [appellant] not communicating
with Ms. Nightly, or on both, [appellant’s] guilty plea was involuntary.”
The test for determining the validity of a guilty plea is whether the plea
represents a voluntary and intelligent choice among the alternative courses of action
open to a criminal defendant. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.
Ct. 160, 164 (1970). There is a presumption of regularity with respect to guilty pleas
under the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 1.15
(West 2005); Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (en
banc). Before accepting a guilty plea, the Court must admonish the defendant as to
the consequences of his plea, including determining whether the plea is freely,
voluntarily, and knowingly given. See TEX. CODE CRIM. PROC. art. 26.13 (West
Supp. 2017). The purpose of article 26.13 admonishments is to assist the court in
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determining that a valid plea is entered and accepted by the trial court. See id.; Fuller
v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008).
Here, appellant pleaded guilty to the charged offense. The record reflects that
the trial court admonished appellant in accordance with the mandates of article
26.13. The admonishment is a prima facie showing that the guilty plea was knowing
and voluntary. See Richard v. State, 788 S.W.2d 917, 920 (Tex. App.—Houston [1st
Dist.] 1990, no writ). The burden shifted to appellant to show, considering the
totality of the circumstances, that the plea was unknowing and involuntary. Ex parte
Arjona, 402 S.W.3d 312, 318 (Tex. App.—Beaumont 2013, pet. ref’d).
Appellant argues that his plea was involuntary because trial counsel did not
inform him of a defense (i.e., counsel provided ineffective assistance). When a
defendant claims that his plea was not voluntary because his counsel was ineffective,
the voluntariness of the plea depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases and, if not, whether
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial. See Ex parte Moody, 991
S.W.2d 856, 857–58 (Tex. Crim. App. 1999). Appellant presented no evidence to
support his claim that his plea was involuntary. We therefore overrule his fourth
ground.
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Actual Innocence
In his third ground, appellant contends that the trial court erred in denying his
application because he is actually innocent. Specifically, he argues that (1) “Beth
Nightly” was not a “minor” as alleged in the indictment because (a) she was not a
living human being and, therefore, not an individual, (2) she was not younger than
seventeen years of age and did not represent herself to be younger than seventeen
years of age; and (2) he never communicated with Ms. Nightly.
A defendant who pleaded guilty to an offense may assert, as an applicant for
habeas corpus relief, a claim of actual innocence based on newly discovered
evidence. See Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim. App. 2006).
Evidence is considered “newly discovered” if it was not known to the applicant at
the time of the trial, plea, or post-trial motions and could not have been known to
him even with the exercise of due diligence. Id. at 545. To succeed in an actual
innocence claim the applicant must show “by clear and convincing evidence that,
despite the evidence of guilt that supports the conviction, no reasonable juror could
have found the applicant guilty in light of the new evidence.” Id. (quoting Ex parte
Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002)). This showing must overcome
the presumption that the conviction is valid and it must unquestionably establish
applicant’s innocence. See Ex parte Brown, 205 S.W.3d at 545.
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A review of the record reveals that appellant has not presented any newly
discovered evidence in support of his defensive theories. Thus, on the face of his
application, his claim of actual innocence fails. See Ex parte Zantos-Cuebas, 429
S.W.3d 83, 88 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (noting analysis of
whether claim has any facially arguable basis requires court to apply law to facts as
depicted in application and accompanying documents). Accordingly, we overrule
his third ground.
Conclusion
We affirm the order of the trial court.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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