Summary
finding evidence of same scheme and continuing course of conduct in real estate aggregate theft case where defendants filed fraudulent deeds to insert themselves into the chains of title for multiple properties and sold the properties to third parties
Summary of this case from Williams v. StateOpinion
NO. 01-18-00144-CR
11-21-2019
EX PARTE Richard Lawrence NUGENT
David A. Schulman, 1801 East 51 St., Ste 365474, Austin, Texas 78723, for Appellant. Kim Ogg, District Attorney, Harris County, Texas, Melissa H. Stryker, 1201 Franklin, St., Ste. 600, Houston, Texas 77002, for State.
David A. Schulman, 1801 East 51st St., Ste 365474, Austin, Texas 78723, for Appellant.
Kim Ogg, District Attorney, Harris County, Texas, Melissa H. Stryker, 1201 Franklin, St., Ste. 600, Houston, Texas 77002, for State.
Panel consists of Justices Keyes, Goodman, and Countiss.
Gordon Goodman, Justice In June 2005, appellant, Richard Lawrence Nugent, pleaded guilty without an agreed punishment recommendation to the first-degree felony offense of theft, in an aggregate amount in excess of $200,000.00. See TEX. PENAL CODE §§ 31.01(1)(D), 31.03(a), (e)(7), 31.09. The trial court assessed punishment at ten years' confinement but suspended the sentence and placed Nugent on ten years' community supervision. In April 2015, Nugent filed an application for writ of habeas corpus under Article 11.072 of the Texas Code of Criminal Procedure, asserting that (1) he received ineffective assistance of counsel, (2) counsel was so ineffective as to render his guilty plea involuntary, and (3) newly discovered evidence establishes his innocence. Following a hearing in May 2016, the trial court denied relief in July 2016. Nugent attempted an appeal but our Court dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely. In January 2018, the trial court granted Nugent's request for an out-of-time appeal of the habeas denial. We affirm the trial court's order denying habeas relief.
Citations to section 31.03(e)(7) in this opinion refer to the version in effect when Nugent pleaded guilty. Prior to 2015, theft in an amount over $200,000 was a first-degree felony. In 2015, section 31.03(e) was amended to provide that (1) theft in an amount of $200,000 or more but less than $300,000 is a second-degree felony, and (2) theft in an amount over $300,000 is a first degree-felony. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, § 10, 2015 Tex. Gen. Laws 4208, 4213.
Background
The facts leading up to Nugent's guilty plea in the underlying case have been summarized in our decision in Nugent v. State , No. 01-05-00775-CR, 2006 WL 2893429 (Tex. App.—Houston [1st Dist.] Oct. 12, 2006, pet. ref'd) (mem. op., not designated for publication). Between July 2002 and May 2004, Nugent engaged in a real estate scheme with codefendant Craig Davidson. Id. at *1. Nugent and Davidson typically located apparently abandoned residential real property owned by unsuspecting third parties. Id. They then would file a false tax deed purporting to convey title to the property to themselves, or to one of their various aliases, in an attempt to obtain color of title for purposes of the Texas adverse possession statute, and would take temporary control of the property. Id. Next, using a special warranty deed, they purported to convey what appeared to be fee simple ownership of the property to an unsuspecting buyer, in exchange for money or a promise to pay money. Id. On their face, the deeds generally appeared to convey full title to the buyers, but a careful reading revealed that the deeds disclaimed any warranty; at most, the deeds conveyed Nugent's or Davidson's "interest" in an unmatured adverse possession claim. Id.
After an investigation, the State determined that Nugent and Davidson committed theft against the legitimate property owners as well as against the people to whom Nugent and Davidson then sold the properties—by deceiving the purchasers into believing that they were buying outright ownership of the premises, rather than merely unperfected adverse-possession interests in the properties. In February 2005, the State charged Nugent and Davidson with the first-degree felony offense of aggregate theft by deception in an amount exceeding $200,000.00. See TEX. PENAL CODE §§ 31.01(1)(D), 31.03(a), (e)(7), 31.09. The indictments listed forty-seven separate complainants—twenty-four complainants were the rightful owners of the properties Nugent and Davidson claimed to adversely possess, and twenty-three complainants were purchasers of Nugent and Davidson's claimed interest in the properties.
See Tex. Penal Code §§ 31.03(a) (establishing the offense of theft); 31.03(b)(1) (stating that appropriation of property is unlawful if done without effective consent of owner); see also Tex. Penal Code §§ 31.01(1)(D) (defining "deception" as it pertains to this case); 31.01(3)(A) (consent not effective if induced by deception or coercion); see generally Tex. Penal Code § 31.09 ("Aggregation of Amounts Involved in Theft").
In April 2005, Nugent pleaded guilty without an agreed punishment recommendation to the first-degree felony offense of theft in an aggregate amount in excess of $200,000.00. Following Nugent's guilty plea, the trial court ordered the preparation of a pre-sentence investigation ("PSI") report. At Nugent's sentencing hearing in June 2005, the State presented testimony of three victims of Nugent's crime; each testified to the losses he or she personally had sustained. At the conclusion of the hearing, the trial court assessed punishment at ten years' confinement but suspended the sentence and placed Nugent on a ten-year term of community supervision with conditions, including a condition requiring payment of restitution to the complaining witnesses. Nugent was represented by his retained attorney, Ken Mingledorff, during his guilty plea and the sentencing.
Nugent appealed, solely challenging the amount of restitution ordered as a condition of his community supervision. See Nugent v. State , 2006 WL 2893429, at *2. Our court affirmed the judgment but modified the restitution order to reflect the trial court's oral pronouncement. See id. at *3–4.
A. The Trial Court's Denial of Nugent's Habeas Application
In April 2015, Nugent filed an application for habeas relief under Article 11.072 seeking to vacate the judgment on the grounds that (1) Nugent received ineffective assistance of counsel because he pled guilty to acts that do not constitute an offense; (2) the advice of Nugent's trial counsel was so deficient as to render Nugent's guilty plea involuntary; and (3) newly discovered evidence establishes that Nugent is actually innocent of theft, as charged. Following a hearing on May 31, 2016, the trial court denied Nugent's request for habeas relief in a written order dated July 25, 2016.
The trial court's order denying habeas relief included findings of fact and conclusions of law. Among other things, the trial court included the following findings of fact:
10. The Court recalled the testimony of the witnesses during the PSI hearing on June 24, 2005 as well as the testimony from a Motion to Adjudicate Hearing, which occurred in July 2009. That Motion was dismissed on July 23, 2009 after the Court denied the Motion.
11. Based on the Court's prior experience as well as recollection of the PSI hearing, the Court is familiar with attorney Ken Mingledorff and his abilities. The Court reviewed an affidavit written by Ken Mingledorff, which was included as an exhibit in the Respondent's Answer. In that affidavit, Mr. Mingledorff discussed his strategy in terms of having Nugent plead guilty and his presentation of witnesses and evidence at the PSI hearing.
12. The Court finds that the affidavit submitted by Mr. Ken Mingledorff is credible and the facts asserted therein to be true.
13. From both the PSI and the Motion to Adjudicate, the Court recalled the testimony of real estate law experts for both sides regarding adverse possession.
The trial court also made the following conclusions of law:
1. The Applicant failed to prove by a preponderance of the evidence that Mingledorff's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) ; Narvaiz v. State , 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (citing Strickland v. Washington , 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) ).
2. The totality of the representation afforded the applicant was sufficient to protect his right to reasonably effective assistance of counsel in the primary case.
3. The Applicant's actions constituted a criminal offense, namely Aggregate Theft, as opposed to adverse possession.
4. The Applicant's plea was made voluntarily, knowingly and intelligently. Attorney Mingledorff's advice to Applicant was not so ineffective as to render Applicant's guilty plea involuntary.
5. The Applicant failed to prove, by a preponderance of the evidence, that there is newly discovered evidence of the applicant'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. Ex parte Brown , 205 S.W.3d at 545 ; Ex parte Elizondo , 947 S.W.2d 202, 206 (Tex. Crim. App. 1996) ; Ex parte Richardson , 70 S.W.3d 865, 870 (Tex. Crim. App. 2002) (applicant bears burden of proving, by preponderance of evidence, facts that would entitle him to relief).
6. In all things, the Applicant has failed to demonstrate that his conviction was improperly obtained.
B. Nugent's Appeal from the Denial of Habeas Relief
Nugent filed a notice of appeal on November 2, 2016 attempting to appeal the denial of habeas relief. Acknowledging that the notice of appeal was untimely, Nugent filed a motion requesting that our Court grant an out-of-time appeal. Because our Court lacked authority to grant the request for an out-of-time appeal, we denied the motion and dismissed the appeal for lack of jurisdiction. See Ex parte Nugent , No. 01-16-00903-CR, 2017 WL 117323, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 12, 2017, pet. ref'd) (per curiam) (mem. op., not designated for publication). The trial court ordered Nugent's community supervision unsatisfactorily terminated in 2017.
Nugent later filed an application for writ of habeas corpus with the trial court seeking an out-of-time appeal. The trial court granted Nugent's request for an out-of-time appeal on January 19, 2018.
On February 19, 2018, Nugent filed a notice of appeal from the trial court's July 25, 2016 order denying his original writ application. On appeal, Nugent argues that the trial court abused its discretion in denying his original application for a writ of habeas corpus because trial counsel provided ineffective assistance of counsel.
Jurisdiction
Article 11.072 of the Texas Code of Criminal Procedure establishes 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 of community supervision. TEX. CODE. CRIM. PROC. art. 11.072, § 1. Those seeking relief pursuant to article 11.072 are required to file an application for writ of habeas corpus with "the clerk of the court in which community supervision was imposed." Id. art. 11.072, § 2(a). Article 11.072 provides that, at "the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of: (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision." Id. art. 11.072, § 2(b). If the trial court denies the application "in whole or part, the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate Procedure." Id. art. 11.072, § 8.
Here, Nugent's application for writ of habeas corpus was filed after his community supervision was unsatisfactorily terminated and challenges the trial court's order that deferred the adjudication of his guilt and imposed community supervision. Hence, the trial court had jurisdiction over Nugent's application. See id. art. 11.072, §§ 1, 2(b) ; Arreola v. State , 207 S.W.3d 387, 390 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ; Ex parte Enriquez , 227 S.W.3d 779, 781–83 (Tex. App.—El Paso 2005, pet. ref'd). We have jurisdiction over the appeal from the denial of that application. TEX. CODE. CRIM. PROC. art. 11.072, § 8 ; Arreola , 207 S.W.3d at 390.
Standard of Review
Generally, an appellate court reviews a trial court's decision to grant or deny habeas corpus relief for an abuse of discretion. See Ex parte Montano , 451 S.W.3d 874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). A trial court does not abuse its discretion if its ruling lies within the zone of reasonable disagreement. Bigon v. State , 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). We will uphold the habeas court's judgment as long as it is correct under any theory of law applicable to the case. See Ex parte Taylor , 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam). The applicant bears the burden of establishing by a preponderance of the evidence that the facts entitle him to relief. Ex parte Richardson , 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In reviewing the trial court's decision to grant or deny habeas corpus relief, we consider the evidence presented in the light most favorable to the trial court's ruling, regardless of whether the court's findings are implied or explicit, or based on affidavits or live testimony, provided they are supported by the record. See Ex parte Wheeler , 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006) ; Ex parte Murillo , 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.), abrogated on other grounds by Chaidez v. United States , 568 U.S. 342, 357–58, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013).
The trial judge is the original fact finder in habeas corpus proceedings. In article 11.072 habeas proceedings, such as this case, the trial judge is the sole finder of fact. Ex parte Torres , 483 S.W.3d 35, 42 (Tex. Crim. App. 2016) ; Ex parte Garcia , 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). "In making its determination, the [habeas] court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection." Ex parte Fassi , 388 S.W.3d 881, 887 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (quoting TEX. CODE CRIM. PROC. art. 11.072, § 6(b) ). Unlike an article 11.07 case, there "is less leeway in an article 11.072 context to disregard the findings of a trial court." Garcia , 353 S.W.3d at 788. 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 factual findings are based on an evaluation of credibility and demeanor. Ex parte Montano , 451 S.W.3d at 877 (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ). 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. Sandifer v. State , 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Guzman , 955 S.W.2d at 89 ). If resolution of the ultimate questions turns on application of legal standards, we review the determination de novo. Id.
Ineffective Assistance of Trial Counsel
Nugent asserts that the trial court abused its discretion in denying his application for a writ of habeas corpus because his trial counsel provided ineffective assistance of counsel which, in turn, rendered his plea involuntary. Specifically, Nugent contends that his trial counsel "failed to achieve and [sic] adequate understanding of the law of adverse possession"; "improperly concluded that [a]ppellant's actions were illegal"; and thus erroneously counseled and encouraged appellant to plead guilty to theft, as charged. We address these arguments below.
A. Applicable Law
To establish that counsel rendered ineffective assistance, a habeas applicant must demonstrate, by a preponderance of the evidence, that (1) his counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (2) there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. See Strickland v. Washington , 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Ex parte White , 160 S.W.3d 46, 51 (Tex. Crim. App. 2004) ; Robinson v. State , 514 S.W.3d 816, 823 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). An applicant's failure to make either of the required showings of deficient performance or sufficient prejudice defeats the claim of ineffective assistance. See Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong.").
To prove that counsel was ineffective under the first prong of Strickland , a defendant must first show that counsel's performance was objectively unreasonable under the prevailing professional norms. Strickland , 466 U.S. at 688, 104 S.Ct. 2052. To determine whether the defendant has established this, a reviewing court must examine the totality of counsel's conduct at the time of the representation, and must evaluate the reasonableness of counsel's actions from counsel's perspective at the time of that representation, without focusing on isolated acts or omissions. Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; Robertson v. State , 187 S.W.3d 475, 482 (Tex. Crim. App. 2006) ; Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and, therefore, the appellant must overcome the presumption that the challenged action constituted "sound trial strategy." Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; Williams , 301 S.W.3d at 687 ; Robinson , 514 S.W.3d at 823. Our review is highly deferential to counsel, and we do not speculate regarding counsel's trial strategy. See Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail on an ineffective assistance claim, the appellant must provide an appellate record that affirmatively demonstrates that counsel's performance was not based on sound strategy. See Thompson , 9 S.W.3d at 813 (holding that record must affirmatively demonstrate alleged ineffectiveness).
A criminal defendant has the right to effective assistance of counsel in guilty-plea proceedings. Ex parte Harrington , 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). A guilty plea must represent a " ‘voluntary and intelligent choice among the alternative courses of action open to the defendant.’ " Aguilar v. State , 375 S.W.3d 518, 521 (Tex. App.—Houston [14th Dist.] 2012) (quoting North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ). "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). The two-pronged Strickland test applies to challenges to guilty pleas, such as the one in the present case, premised on ineffective assistance of counsel. See Ex parte Obi , 446 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (citing Hill v. Lockhart , 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). "Specifically, when a person challenges the validity of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty." Ex parte Harrington , 310 S.W.3d at 458 (quotation marks omitted). A defendant asserting a claim of ineffective assistance of counsel has the burden to establish both of these elements—deficiency and prejudice—by a preponderance of the evidence. Ex parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (citing Thompson , 9 S.W.3d at 813 ).
B. Discussion
In denying habeas relief, the trial court concluded that Nugent failed to demonstrate ineffective assistance of counsel. Nugent challenges this denial as an abuse of discretion, asserting on appeal that his counsel was ineffective because counsel failed to learn and understand the law of adverse possession and, so, erroneously counseled Nugent and encouraged him to plead guilty to theft when—per Nugent—none of the transactions alleged in the indictment were actually illegal. As discussed below, we conclude that the trial court acted within its discretion in denying habeas relief because Nugent failed to demonstrate that counsel's performance was deficient. Specifically, Nugent fails to rebut the presumption that counsel acted within the range of reasonable professional assistance in concluding that Nugent's actions constituted a criminal offense and counseling Nugent to plead guilty to the offense. Because Nugent fails to demonstrate that counsel was deficient in his performance, we need not reach whether the claimed deficiency resulted in prejudice. See Williams , 301 S.W.3d at 687.
First, Nugent's assertions that his counsel failed to learn and understand the facets of adverse-possession law, and, so, misgauged the criminality of Nugent's conduct are contradicted by the record. The record demonstrates that Nugent's counsel took reasonable and adequate measures to ensure that he understood the law regarding adverse possession. Among other things, the record demonstrates that Nugent's counsel consulted with Richard Melamed—a lawyer certified by the Texas Board of Legal Specialization in residential and commercial real estate law—regarding the law of adverse possession, and retained Melamed to assist him with the case as a defense expert, as well as to testify in that capacity.
Second, Nugent asserts that counsel was ineffective because all of Nugent's actions were legal and that the State failed to demonstrate that Nugent committed theft rather than adverse possession. But in reviewing the denial of Nugent's ineffective assistance of counsel claims on appeal, we need not determine whether Nugent's actions constitute theft; rather, we need only determine whether the trial court abused its discretion in holding that counsel could reasonably reach that conclusion. In other words, the trial court determines whether counsel could reasonably conclude that Nugent's actions constitute theft, and our court, in turn, reviews whether the trial court was reasonable in reaching its determination. As discussed below, the record supports the trial court finding that counsel was reasonable in concluding that Nugent's actions could constitute theft and that Nugent could be convicted of the offense if the case went to trial.
In its findings of fact, the trial court stated that it reviewed an affidavit written by Mingledorff, which discussed his strategy in terms of having Nugent plead guilty and his presentation of witnesses and evidence at the PSI hearing. Among other things, Mingledorff averred in his affidavit that (1) Nugent advised him that Nugent wanted a plea rather than going to trial and (2) he advised Nugent that if the case went to trial, he could receive the maximum sentence because a jury might be sympathetic to complainants. The trial court found the affidavit submitted by Mingledorff to be credible and the facts asserted therein to be true.
Nugent asserts that the State failed to demonstrate that he committed theft rather than adverse possession. But again, the issue in this appeal is whether counsel rendered ineffective assistance in advising Nugent to enter a guilty plea to the offense of theft. Notably, the trial court determined in its findings of fact and conclusions of law that Nugent's actions "constituted a criminal offense, namely Aggregate Theft, as opposed to adverse possession."
At the habeas hearing, the State presented expert testimony explaining that Nugent and Davidson's actions were criminal theft against the complainant legal or equitable title holders, as well as against the complainant-purchasers of the legal or equitable title holders' properties—not legitimate transactions based on adverse possession. As our Court explained in Nugent's prior appeal:
Those who sustained losses due to Nugent's conduct fall into two separate categories: (1) those whose titles to real property were clouded by Nugent's scheme, and (2) those deprived of money in payment for the false warranty deeds. The true owners of the real properties involved in this case—upon which Nugent filed false liens—were injured, as were people who attempted to purchase the real property from Nugent.
Nugent v. State , 2006 WL 2893429, at *3.
The State's expert explained that Nugent and Davidson's real-estate scheme constituted theft of the enumerated properties because Nugent and Davidson filed fraudulent and errant deeds to insert themselves into the chains of title for the properties; failed to fulfill the tenets of either the five- or ten-year adverse possession statutes; and then sold the properties to third parties via general warranty deeds, while representing themselves to be the owners of the properties, and representing the conveyances to those third parties to be full transfers of fee simple ownership.
Even if Nugent could demonstrate that his actions constituted adverse possession with respect to the property owners, his counsel still could reasonably conclude that his actions with respect to the purchasers constituted theft by deception. Regarding the purchaser-complainants listed in the indictment, the State's expert explained that Nugent's conduct constituted theft from those individuals because Nugent deceived the purchaser complainants into believing that he owned the subject properties and was conveying full, fee simple ownership to the purchaser-complainants in exchange for money, or a promise to pay money. The record contains witness testimony corroborating the state's expert testimony. For instance, Ofelia Ramirez—one of the purchaser-complainants listed in the indictment—testified at Nugent's PSI hearing that (1) Nugent told her that he owned the house that she purchased from him; (2) Nugent never told her that his supposed ownership interest in the home that she purchased from him was premised solely upon adverse possession; (3) Nugent did not advise her how to perfect an adverse possession claim; and (4) she would never have signed a contract or paperwork with Nugent had she known that he did not actually own the property.
In an affidavit in support of his habeas application, Nugent claims that he explained to every buyer the requirements of the adverse possession statute; however, this statement conflicts with the testimony of buyers listed in the indictment. As the finder of fact, the trial court was entitled to find Nugent's contrary assertions to be not credible. We defer to the habeas court's finding on these issues, as their resolution turns on an evaluation of the witnesses' credibility. See Ex parte Amezquita , 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) ; see also Ex parte Thompson , 153 S.W.3d 416, 417–18 (Tex. Crim. App. 2005).
Furthermore, the State's expert testimony and the evidence adduced at Nugent's PSI and revocation proceedings demonstrate that the "special warranty deeds" used by Nugent to convey the properties to the purchaser-complainants were insufficient to put the purchaser complainants on notice of the true nature of the transaction—i.e., that the purchaser-complainants were acquiring only unperfected adverse-possession interests in the properties, not outright, fee simple ownership. As our Court previously noted, "[o]n their face, the deeds generally appeared to convey full title to the buyers, but a careful reading revealed that the deeds disclaimed any warranty; at most, the deeds conveyed Nugent's or Davidson's ‘interest’ in an unmatured adverse possession claim." Nugent , 2006 WL 2893429, at *1.
Nugent asserts that terms within the deeds sufficiently notified purchasers that they were only receiving a potential adverse possession interest in the properties they purchased. The record contains various deeds used by Nugent that merely referenced the Texas Jurisprudence section regarding adverse possession. For example, these deeds provided the following:
Grantee acknowledges and agree that accepting this conveyance is made pursuant to the rules under Texas Jurisprudence Sections § 92 - § 111 as a continuance of a prior recorded Deed filed in the office of the Harris County Clerk's Office and that grantor makes no representations or warrantee express, implied or statuary, relating to the above described property....
Nugent's counsel could reasonably conclude that their mere inclusion of a vague references to a legal encyclopedia was insufficient to put purchasers on notice that they were only buying an unmatured adverse possession interest rather than actual title to the properties. The reasonableness of this conclusion is further supported by the testimony of purchasers that Nugent held himself out as the owner of the property and failed to orally advise the buyers that he did not actually own the properties, or that he was selling only adverse possession interests in the premises.
Although certain deeds contained more explicit language regarding the five-year adverse possession statute, Nugent's counsel could reasonably conclude that the general scheme was insufficient to put purchaser's on notice that they were only buying an unmatured adverse possession interest rather than actual title to the properties.
Nugent further asserts that there was no criminal offense with respect to the purchasers because the deeds contained provisions stating that the purchasers agreed to hold Nugent harmless and that the purchasers accepted the property and title in "as-is" condition. These provisions typically provided as follows:
Grantee shall hold Grantor harmless in every way from this transaction and accepts property and title in its current as-is condition and style and by the acceptance and filing of this deed agrees to hold Grantor harmless and forever releases Grantor from any and all claims.
Nugent asserts that whether the purchasers understood the significance of the language is unimportant because a party that signs a contract is presumed to have read and understood the contract. Although such language might be relevant to defending against a civil claim in connection with the purchase, Nugent fails to provide any support for the proposition that the inclusion of such language automatically absolves him of a charge of theft by deception. As discussed, the deeds were insufficient to notify the purchasers that they were only acquiring an unperfected adverse possession interest in the properties and the record demonstrates that purchasers testified that Nugent held himself out as the owner of the property.
In sum, the trial court's conclusion that Nugent failed to demonstrate the first prong of the Strickland test for ineffective assistance of counsel is supported by the record. The trial court could reasonably have concluded that Nugent's counsel: took reasonable and adequate measures to ensure that he understood the law regarding adverse possession, including by retaining and utilizing an expert in the subject area; accurately conveyed and explained adverse-possession law to Nugent, as well as the law pertaining to the criminal offense of aggregate theft by deception; and, thus, that counsel effectively represented Nugent for purposes of the first prong of Strickland. Additionally, the trial court could reasonably have determined that, given counsel's proficient representation, Nugent's guilty plea was not involuntary due to ineffective assistance of counsel.
Accordingly, because the trial court's conclusions on these matters are supported by the record and the law, we overrule Nugent's ineffective assistance point of error. See Strickland , 466 U.S. at 700, 104 S.Ct. 2052 ("Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."). Because Nugent fails to satisfy his burden of demonstrating ineffective assistance of counsel, he also fails to demonstrate that his guilty plea based on that assistance was involuntary.
C. The Fourteenth Court's Consideration of the Issue
Finally, we note that our sister court recently rejected the same ineffective assistance of counsel arguments in affirming the trial court's denial of habeas relief for Nugent's co-defendant. See Ex parte Davidson v. State , No. 14-18-00158-CR, 2019 WL 5158711 (Tex. App.—Houston [14th Dist.] Oct. 15, 2019, no pet. h.) (memo. op., not designated for publication).
As with Nugent, Davidson pleaded guilty (without an agreed recommendation as to sentencing) to the first-degree felony offense of aggregate theft in an amount in excess of $200,000. Id. at *2. After a sentencing hearing, the trial court deferred a finding of guilt and placed Davidson on ten years' deferred adjudication with conditions, including a condition requiring payment of restitution. Id. On April 18, 2017, the trial court found that Davidson had satisfactorily completed the conditions of supervision and the trial court terminated Davidson's deferred adjudication. Id. On November 1, 2017, Davidson filed an application for writ of habeas corpus. Id. The trial court denied the application and subsequently issued Findings of Fact and Conclusions of Law. The trial court's Findings of Fact are similar to those in its order denying Nugent's habeas application and, with the exception of counsels' names, the Conclusions of Law are identical. See id. at *2–3. Davidson appealed the denial.
As in this case, Davidson sought habeas relief on the basis of ineffective assistance of counsel, asserting that his attorney failed to investigate and understand the law of adverse possession and consequently caused Davidson to enter a guilty plea when his acts did not constitute an offense. Id. at *6–7. Davidson's trial counsel submitted an affidavit responding to the allegations in the habeas application. Id. at *8. Counsel's affidavit stated that (1) during his representation of Davidson, he consulted with Mark Diaz, a criminal defense attorney and Richard Melamed, both of whom are licensed attorneys in Texas with experience in real estate law; (2) Davidson understood the expert opinions of both Diaz and Melamed before his guilty plea; (3) Melamed is a well-respected and experienced attorney who is board certified in residential, commercial, and farm and ranch real estate law; and (4) there was never a lack of understanding of the law of adverse possession. Id.
The trial court noted in its Findings of Fact that the court was familiar with counsel and his abilities and had reviewed the affidavit. Id. The court found the affidavit to be credible and the facts asserted therein to be true. Id. In its Conclusions of Law, the trial court determined that Davidson had failed to prove that counsel's representation was deficient and that there was a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceedings would have been different. Id.
On appeal, the Fourteenth Court concluded that the trial court properly denied Davidson's request for habeas relief based on ineffective assistance of counsel:
Considering Rodriguez's affidavit, as well as other testimony and affidavits in the record and the trial court's personal recollection of events, the trial court could have reasonably concluded that Rodriquez effectively represented Davidson and that Davidson's guilty plea was not involuntary because of ineffective assistance of counsel. Because Davidson failed to show the first prong of Strickland , the trial court properly denied his application for habeas relief based on claims of ineffective assistance of counsel. See Strickland , 466 U.S. at 700 .
Id. For the reasons discussed above, we reach the same conclusion with respect to Nugent's habeas application. Ineffective Assistance of Habeas Counsel
For the first time on appeal, Nugent appears to claim ineffective assistance of habeas counsel as well. Specifically, Nugent asserts that his "Habeas counsel also performed deficiently in presenting the Article 11.072 writ application to the trial court, which has inhibited proper presentation of the appeal to this Court." Nugent further asserts:
Moreover, but for habeas counsel's failure to properly document the claims through submissions of all documents necessary to properly demonstrate that nature of the 47 transactions listed in the indictment, the habeas court would have had a complete picture of the situation. Because habeas counsel failed to supply the necessary documentation, the trial court may not have had a complete picture of the relevant facts.
But it is a well-established principle of federal and state law that no constitutional right to effective assistance of counsel exists on a writ of habeas corpus. Ex parte Graves , 70 S.W.3d 103, 110 (Tex. Crim. App. 2002). A convicted person has no right to appointment of any counsel in a post-conviction habeas proceeding and, thus, cannot claim ineffective assistance of counsel in that proceeding. Ex parte Graves , 70 S.W.3d at 110–11, 117 ; see Coleman v. Thompson , 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.") (internal citations omitted).
Actual Innocence Based on Newly Discovered Evidence
Nugent's original habeas application asserted that newly discovered evidence establishes that Nugent is actually innocent. Nugent does not address this actual innocence claim on appeal. Accordingly, we do not reach the issue. To the extent that Nugent claims actual innocence based upon his assertions that his actions were legal, the trial court acted within its discretion in denying habeas relief based on actual innocence. "The term ‘newly discovered evidence’ refers to evidence that was not known to the applicant at the time of trial and could not be known to him even with the exercise of due diligence." Ex parte Brown , 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). An applicant "cannot rely upon evidence or facts that were available at the time of his trial, plea, or post-trial motions, such as a motion for new trial." Id. (citing Ex parte Briggs , 187 S.W.3d 458, 465 (Tex. Crim. App. 2005) and Ex parte Tuley , 109 S.W.3d 388, 403 (Tex. Crim. App. 2002) (Price, J., concurring in denial of reh'g)). Here, Nugent's argument that he is actually innocent because his acts were legal does not present new evidence.
Conclusion
For the foregoing reasons, we hold that the trial court acted within its discretion in denying Nugent's application for habeas relief. Accordingly, we affirm the trial court's order denying habeas relief.