Opinion
NO. 14-16-00278-CR
02-02-2017
EX PARTE MARY FRANCES WHITE
On Appeal from the 149th District Court Brazoria County, Texas
Trial Court Cause No. 75377-1
MEMORANDUM OPINION
Appellant Mary Frances White pleaded guilty to indecency with a child by exposure and was placed on deferred adjudication community supervision for five years. Six months after she entered her plea, appellant filed an application for writ of habeas corpus in the trial court alleging her plea was involuntary due to ineffective assistance of counsel. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015). She contended her plea counsel provided ineffective assistance by advising her to enter into a plea-bargain agreement that did not comport with the outcomes he knew were important to her. The trial court denied the application, and appellant appeals that denial. We affirm.
FACTUAL BACKGROUND
A. Underlying case
Appellant was indicted in February 2015 for indecency with a child by contact, a second-degree felony. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). The complainant was her daughter, A.W. Appellant retained Billy Skinner, a criminal defense lawyer, to defend her.
When she was indicted, appellant (1) was involved in family litigation concerning custody of A.W. and T.W., appellant's son, and (2) was a licensed real estate sales agent. Her licensure is governed by the Real Estate License Act, which requires a license holder to disclose any plea of guilty or nolo contendere entered to a felony. Tex. Occ. Code Ann. § 1101.452(b)(1) ("Each applicant for the renewal of a license must disclose in the license application whether the applicant has entered a plea of guilty or nolo contendere to a felony . . . .") (West 2012). Appellant alleges she told Skinner she wanted to resolve the criminal case in a manner that would allow her to continue to see T.W., have the least impact on her job, and require her to register as a sex offender for the least amount of time possible.
In June 2015, appellant and the State entered into a plea-bargain agreement by which appellant would plead guilty to a lesser offense and be placed on deferred adjudication community supervision. Appellant pleaded guilty to indecency with a child by exposure, a third-degree felony. See Tex. Penal Code Ann. § 21.11(a)(2). The trial court and appellant had the following exchange at the plea hearing:
Court I also have before me a document entitled supplemental admonitions. Did you go through these with your attorney?
Appellant Yes, Your Honor.
Court And did you sign these on the last page?The trial court followed the parties' agreement, accepted appellant's plea, deferred a finding of guilt, and placed appellant on community supervision for five years. The terms of appellant's community supervision as a sex offender, which were preprinted on a form, forbid her from having "contact, direct or indirect, with the victim(s) or the victim's immediate family members either in person, in writing, by phone or through third parties for any reason except as specifically permitted by the Court." Because T.W. is one of A.W.'s immediate family members, appellant may not have any contact with him except as permitted by the court.
Appellant Yes, Your Honor.
Court This document explains to you the law in regard to registration as a sex offender. Do you understand that?
Appellant Yes, Your Honor.
Court And you understand that by entering this plea, if I accept it, you will have to register as a sex offender?
Appellant Yes, Your Honor.
B. Application for writ of habeas corpus
Appellant applied for a writ of habeas corpus in December 2015, contending her plea was not knowingly, intelligently, and voluntarily made due to ineffective assistance of counsel by Skinner. She alleged he provided her ineffective assistance by advising her to resolve the case in a way that did not achieve the three goals she told him: (1) continue to see her son, (2) be impacted as little as possible professionally, and (3) be listed on the sex offender registry for the shortest time possible. The trial court heard the applications on affidavits and the record in the underlying case. See Tex. Code Crim. Proc. Ann. art. 11.072 § 6(b) ("In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection.").
1. Evidence
Appellant's affidavit in support of her application states in relevant part:
I informed my attorney that I wished to resolve the case without trial and in a manner that would allow me to continue to see my son, would have the least impact on my profession, and would require the least amount of time on the sex offender registry. Mr. Skinner advised me to enter into a plea agreement with the State whereby I would be placed on deferred adjudication community supervision. As the plea agreement with the State expressly denies me access to my son, requires me to register for a period of fifteen years, and will result in the loss of my license, I do not feel that my attorney's advice was correct. Had I known that these issues would be the natural result of my plea, I would have insisted on going to trial.
Appellant also submitted affidavits from Sarah Whitten and Ronnie Whitten to support her application. Sarah wrote that Skinner "most definitely emphasized that with this plea [appellant] would be able to have contact with her son T .W." (emphasis in original). Ronnie made a similar though less direct statement; he said Skinner "kept giving [appellant] hope that she could have a relationship with T.W. if she took the plea." Both Sarah and Ronnie stated that Skinner told appellant she would not have to register as a sex offender until her community supervision was complete. Ronnie also wrote that Skinner "repeatedly told [appellant] she was the witness he was worried most about."
After considering the application, the trial court ordered Skinner to provide an affidavit regarding the allegations in appellant's application. Skinner wrote the following:
Throughout my representation of [appellant], [she] was represented on her Family Law matters by Attorney Peggy Bittick of Pearland,
Texas. Additionally, during the entire time I represented [appellant], Child Protective Services was involved in the Child Custody issues regarding [appellant's] allegations and visitation with [appellant's] children. At all times, I advised [appellant] that family law issues and questions should be discussed with Ms. Bittick. I also updated Ms. Bittick's office on the status of [appellant's] criminal allegations multiple times. On the day of the plea, I advised [appellant] the visitation and custody arrangements would be determined through the family law process. At no time did I advise [appellant] that a plea agreement would allow her to see her son.
I discussed Sex Offender registration with [appellant] many times in meetings in my office and on the day she entered the plea agreement. I advised [appellant] she would have to register as a sex offender during her probation and would continue to register for ten years after her probation was completed.
I advised [appellant] that I was not an expert in matters relating to the Texas Board of Realtors. I also advised [appellant] that if we went to trial and lost on the charge indicted, [appellant] would go to prison and would likely lose any professional license she might hold. I did advise [appellant] to seek outside counsel for advice regarding her Real Estate License.
2. Court's findings of fact
The trial court considered the affidavits and took judicial notice of the clerk's record and reporter's record in the underlying case, then made findings of fact and conclusions of law. The following four findings are relevant on appeal:
1. The Applicant was represented by Billy Skinner, a licensed attorney in good standing, in the above styled and numbered cause.
2. Mr. Skinner advised the Applicant that child custody issues regarding Child Protective Services needed to be addressed by Peggy Bittick, her family law attorney handling these matters. Mr. Skinner did not advise her that the plea agreement would allow her to continue to see her son. He advised her that visitation and custody issues would be determined through the family law process.
3. Mr. Skinner advised the Applicant that as part of her plea of guilty that she would be required to register as a sex offender during her probation and for ten years after her probation was completed.The trial court concluded Skinner was not ineffective in representing appellant and denied the application for writ of habeas corpus.
4. Mr. Skinner advised the Applicant that he was not an expert in matters relating to the Board of Realtors and that she needed to seek outside counsel to advise her regarding her Real Estate License.
ANALYSIS
I. Legal standards
A. Habeas corpus
The writ of habeas corpus is "an extraordinary remedy" to be used when a person is restrained in his liberty. Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim. App. 2014). Article 11.072 of the Code of Criminal Procedure establishes the procedures to apply for a writ of habeas corpus in a criminal case in which the applicant was placed on community supervision. See Tex. Code Crim. Proc. Ann. art. 11.072 § 1. If the trial court determines from the face of an application or documents attached to an application filed under article 11.072 that the applicant is "manifestly entitled to no relief," the court must deny the application as frivolous. See id. § 7(a). In all other cases, the trial court must enter findings of fact and conclusions of law. Id.
We review a trial court's ruling on an application for writ of habeas corpus for an abuse of discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011). An applicant seeking post-conviction habeas corpus relief has the burden to establish 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). This court must review the record "in the light most favorable to the trial court's ruling." Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The trial judge is the sole finder of fact in a post-conviction application for writ of habeas corpus filed under article 11.072. Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). As a result, the court of appeals has "less leeway" to disregard the trial court's findings with respect to an article 11.072 application. Garcia, 353 S.W.3d at 788. "[R]eviewing courts defer to the trial court's . . . factual findings that are supported by the record, even when no witnesses testify and all of the evidence is submitted in written affidavits." Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006); see also Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002) (holding that a deferential standard of review of the trial court's resolution of the historical facts from conflicting affidavits was proper).
B. Ineffective assistance of counsel
A guilty plea resulting from ineffective assistance of counsel is not knowing and voluntary. Ex parte Niswanger, 335 S.W.3d 611, 614-15 (Tex. Crim. App. 2011), abrogated in part on other grounds by Cornwell v. State, 471 S.W.3d 458 (Tex. Crim. App. 2015). A guilty plea that is not knowing and voluntary is invalid. See North Carolina v. Alford, 400 U.S. 25, 31 (1970) (guilty plea is valid only if it "represents a voluntary and intelligent choice among the courses of action open to the defendant").
To establish he received ineffective assistance of counsel, a defendant must prove (1) his lawyer's representation fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to claims of ineffective assistance under the Texas Constitution). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697.
The Strickland test applies when the defendant claims he had ineffective assistance of counsel in pleading guilty. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). Competent advice requires that an attorney conduct independent legal and factual investigations sufficient to provide a firm command of the case and the relationship between the facts and each element of the charged offense. Niswanger, 335 S.W.3d at 615. Our review of counsel's performance is highly deferential, beginning with the strong presumption that counsel's actions were reasonably professional and motivated by sound strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To satisfy the prejudice prong of Strickland in the guilty plea context, the defendant must show there is a reasonable probability that, but for his lawyer's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Torres, 483 S.W.3d at 42; Ex parte Luna, 401 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We consider the totality of the circumstances in determining whether counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
II. Appellant did not meet her burden to prove ineffective assistance of counsel
Appellant alleges Skinner gave her ineffective assistance of counsel by advising her to enter into a plea-bargain agreement that (1) forbids her from seeing her son, (2) will cause her to lose her professional license, and (3) requires her to register as a sex offender immediately. To be entitled to habeas relief, she was required to prove by a preponderance of the evidence that Skinner's advice fell below the standard of prevailing professional norms. Strickland, 466 U.S. at 687.
A. Appellant did not prove Skinner's representation was deficient
Before turning to the evidence, we note that appellant's characterization of the effects of her plea-bargain agreement is not accurate. First, the agreement does not forbid appellant from seeing her son. Rather, the terms of her community supervision forbid her from having direct or indirect contact with him "except as specifically permitted by the Court." Appellant has not suggested, much less proved by a preponderance of the evidence, that she has requested and been denied permission to see T.W. Second, though appellant was obligated to disclose the plea to the Texas Real Estate Commission, she cites no authority, and we know of none, suggesting the Commission would be required to revoke her professional license due to her entry of a guilty plea.
See Tex. Occ. Code Ann. §§ 1101.3521 (requiring applicant for real estate license or renewal of real estate license to submit fingerprints so Commission may obtain criminal history record information regarding applicant); 1101.452 (requiring applicant for renewal of real estate license to disclose, among other things, whether he has entered a plea of guilty or nolo contendere to a felony).
Appellant presented evidence about what she told Skinner and what Skinner told her. Sarah and Ronnie Whitten stated Skinner "emphasized" or "gave hope" that appellant would be able to see her son. Ronnie Whitten also said Skinner told appellant she would not have to register as a sex offender until after her community supervision was complete. Skinner refuted both allegations. He said he never told appellant a plea agreement would allow her to see her son, and he told her many times she would have to register as a sex offender during her community supervision. As sole finder of fact in this article 11.072 habeas proceeding, the trial court was free to believe Skinner and not believe Sarah or Ronnie Whitten. Torres, 483 S.W.3d at 42. The record supports the trial court's finding of fact that Skinner "did not advise her that the plea agreement would allow her to continue to see her son." We defer to that finding. Wheeler, 203 S.W.3d at 325-26.
Appellant did not offer evidence of how a reasonable lawyer would represent a mother accused of a sex crime against her minor daughter where the mother was also a party to family litigation involving Child Protective Services. For example, she did not submit evidence that a reasonable lawyer in her county would have asked the prosecutor to deviate from the standard terms of community supervision for a sex offender so that she could see her son, especially when the standard terms would allow her to see her son with court approval. She also did not offer evidence that a reasonable lawyer would have sought to alter the statutory requirements regarding her registration as a sex offender, much less evidence that such an alteration was permissible. See Tex. Code Crim. Proc. Ann. art. 62.051 (West 2006 & Supp. 2016) (setting out registration requirements).
B. Distinction from Ex parte Wolf
Appellant relies on this court's opinion in Ex parte Wolf, 296 S.W.3d 160 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd), to support her contention that a lawyer provides ineffective assistance of counsel if he disregards his client's stated desires with respect to a plea bargain. The defendant in Wolf was a junior in college when he was charged with theft of clothing valued between $500 and $1,000. See id. at 162. Wolf told his lawyer he wanted to have a "clear record" so he could work in the financial services industry after graduation. See id. The lawyer gave Wolf two options: plead guilty and accept deferred adjudication community supervision, or plead not guilty and go to trial. See id. at 163. The lawyer told Wolf if he successfully completed his community supervision, his record could be sealed. The lawyer did not tell him, however, that the licensing agency for the financial industry would have access to Wolf's sealed record. See id. at 163-64. The lawyer also did not present other options besides pleading guilty or not guilty, including pretrial diversion and a "Class C special expense," which would allow Wolf's record to be expunged if he satisfied certain requirements. See id. at 162 n.1, 164. Wolf pleaded guilty. The trial court deferred adjudication, placed Wolf on community supervision, and signed an order for nondisclosure after Wolf successfully completed his community supervision. Id. at 162. Wolf later worked in the financial services sector as a custody-fund accountant. His employer discovered Wolf's arrest and fired him based on the arrest. Id.
Wolf applied for a writ of habeas corpus alleging his guilty plea was involuntary because it resulted from ineffective assistance of counsel. Id. His plea counsel testified at the habeas hearing that he did not apply for pretrial diversion for Wolf because he did not believe Wolf would get pretrial diversion. Counsel believed he asked the prosecutor for a Class C special expense, but he did not give the prosecutor any information in support of his request. See id. at 163.
Wolf submitted affidavits from nine criminal defense lawyers, each of whom testified about his or her success in obtaining pretrial diversion or a Class C special expense for defendants similar to Wolf (e.g. high school and college students with professional aspirations, people in their 20s with no criminal records). See id. at 164. Seven of the lawyers believed a reasonably competent criminal defense lawyer in the county in which Wolf was charged would try to obtain pretrial diversion or a Class C special expense for a first offender charged with misdemeanor theft. Id. The habeas court granted Wolf's application for writ of habeas corpus, and we affirmed. See id. at 165.
Wolf is distinguishable from this case in two key respects. First, the applicant in Wolf submitted evidence—nine affidavits from criminal defense lawyers—of the prevailing professional norms for representation of a defendant like Wolf. See id. at 164. By contrast, as discussed above, appellant presented no evidence of how a reasonable lawyer would represent a defendant like her. Second, the habeas court in Wolf granted the application for writ of habeas corpus after finding Wolf's plea counsel provided ineffective assistance. We reviewed the record in the light most favorable to that ruling. See id. at 166. In this case, we must review the record in the light most favorable to the trial court's denial of habeas relief. Kniatt, 206 S.W.3d at 664.
On appeal, appellant faults Skinner for referring her to outside counsel rather than advising her himself on the plea's effect on her professional license and her family litigation concerning custody and visitation of her children. Her assertion is contrary to the disciplinary rules governing lawyers in Texas. The first such rule dictates that "a lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence" unless another lawyer who is competent to handle the matter is, with the client's consent, associated in the matter. See Tex. Disciplinary Rules Prof'l Conduct R. 1.01(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2013). Skinner advised appellant to seek outside counsel regarding her real estate sales license because he "was not an expert in matters related to the Texas Board of Realtors." We know of no authority suggesting Skinner's advice that appellant refer her licensing questions to another attorney is below the prevailing professional norms for criminal defense lawyers.
C. Conclusion on ineffective assistance of counsel
We conclude appellant did not satisfy her burden to prove the first Strickland prong: that Skinner's representation of her fell below the standard of prevailing professional norms. Because she did not prove Skinner's performance was deficient, we do not address whether she demonstrated prejudice. Strickland, 466 U.S. at 697 (failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim of ineffectiveness). Accordingly, appellant has not shown that the trial court abused its discretion in denying her application for writ of habeas corpus.
CONCLUSION
We overrule appellant's sole issue and affirm the judgment of the trial court.
/s/ William J. Boyce
Justice Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).