Opinion
No. 4-05-00151-CR
Delivered and Filed: January 25, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 7, Bexar County, Texas, Trial Court No. 756743, Honorable Monica Guerrero, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief, Justice, Sarah B. DUNCAN, Justice, Phylis SPEEDLIN, Justice.
MEMORANDUM OPINION
Alexvenskee L. Brown appeals the trial court's order denying relief on his application for a writ of habeas corpus. We affirm the trial court's order. In exchange for pleading nolo contendere to the misdemeanor offense of assault-bodily injury, Brown was granted deferred adjudication and placed on community supervision for one year, which he completed successfully. However, the deferred adjudication appeared on his record and was later used for enhancement purposes in another criminal matter. Believing this to be constitutionally impermissible since he had never been adjudged guilty and believing further that his trial counsel was ineffective in failing to inform Brown of the consequences of a nolo contendere plea, Brown filed a pro se application for a writ of habeas corpus. The trial court conducted a hearing on Brown's petition and denied relief. 1. Brown first argues the trial court erred in denying his request for appointed counsel. However, Brown was not constitutionally or statutorily entitled to appointed counsel. See Ex parte Graves, 70 S.W.3d 103, 111 (Tex.Crim.App. 2002) ("nothing in the federal or Texas constitution requires the State to appoint and pay for counsel to pursue [a post-conviction writ of habeas corpus]"); see also Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005) (containing no requirement that court appoint counsel for an applicant seeking habeas corpus relief from an order imposing community supervision). Accordingly, the trial court did not err in denying his request. 2. Brown next argues the trial court failed to provide him with notice of the hearing and this precluded him from producing records favorable to his side of the story concerning the assault charge. However, Brown waived this complaint by appearing at and participating in the hearing without objecting to the lack of notice or requesting a continuance. See Nabelek v. District Attorney of Harris County, No. 14-03-00965-CV, 2005 WL 2148999 at *5 (Tex.App.-Houston [14th Dist.] Sept. 8, 2005, no pet. h.) (holding pursuant to Texas Rule of Appellate Procedure 33.1 that inmate failed to preserve complaint that he did not receive notice of a hearing by attending the hearing via telephone and failing to object to the lack of proper notice). 3. Brown also argues the trial court erred in failing to postpone the hearing after he stated he was not prepared. However, Brown waived this complaint in the trial court by failing to request a postponement or a continuance; and he waived it in this court by failing to cite any authority supporting his assertion that the trial court was required to sua sponte postpone or continue a hearing when it became aware that a party was unprepared. See Tex.R.App.P. 33.1 (complaint waived by failure to inform trial court of error); id. 38.1(h) (complaint waived on appeal due to inadequate briefing). 4. Brown next argues the trial court erred in ruling that he was not under restraint and therefore not entitled to habeas corpus relief because the use of the deferred adjudication for enhancement purposes constitutes a significant disability. However, as the habeas applicant, Brown had the burden of production and persuasion to prove his claim by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App. 1995), cert. denied, 518 U.S. 1021 (1996). Brown failed to carry this burden; he presented no evidence and chose instead to rely solely upon his unsworn oral arguments to the court. 5. Brown next argues the trial court erred in determining that the use of his deferred adjudication for enhancement purposes did not violate his rights under the Sixth Amendment. Again, however, Brown failed to carry his burden of proof by a preponderance of the evidence; unsubstantiated allegations are insufficient. 6. Finally, Brown argues the trial court erred in determining he would have taken the plea even if he had known its consequences and that he had effective assistance of counsel. Once again, however, by failing to present evidence, Brown failed to prove his case. The trial court's judgment is affirmed.