## COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02

- 18

- 00118

- CR

EX PARTE

KEMONE DUANE RODGERS

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. C

- 29 7

- W011201

- 1488359

- AP

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### MEMORANDUM OPINION 1

--------- -

Appellant Kemone Duane Rodgers appeals the trial judge ’ s denial of relief

on his application for a writ of habeas corpus under article 11.072 of the Texas

Code of Criminal Procedure. 2 See Tex . Code Crim. Proc. Ann. art. 11.072 (West

2015)

. Appellant co ntends that his guilty plea was not knowing, intelligent, and

1 See Tex. R. App. P. 47.4.

2 T he same trial judge who p laced Appellant on deferred adjudication

community supervision denied his requested relief under article 11.072. For

simplicity’s sake, w e use the term “trial judge” rather than “habeas judge” to refer

to that judge throughout this opinion.2 voluntary because of ineffective assistance of trial counsel, and he seeks to

withdraw that plea as well as to recover court costs, see id. art. 11.50, and any

other relief to which he may be en titled. We affirm

.

I. BACKGROUND FACTS

A. Appellant Pled Guilty in Exchange for Deferred Adjudication

Community Supervision.

On May 12, 2017, Appellant pled guilty to the possession of less than a

gram of the penalty group I controlled substance cocaine in exchange for two

years ’ deferred adjudication community supervision and a $200 fine. His plea

paperwo rk provid e s in part :

10. Deferred Adjudication : Should the Court defer adjudicating

your guilt and place you on community supervision, upon

violation of any imposed condition, you may be arrested

and detained as provided by the law. You will then be

entitled to a hearing limited to the dete rm ination by the

Court, without a jury, whether to proceed with an

adjudication of your guilt upon the original ch arge. This

dete rm ination is reviewable in the same manner as a

revocation hearing in a case in which an adjudication of

guilt had not been deferred. Upon adjudication of your

guilt, the Court may assess your punishment anywhere

within the range provided by law for this offense. After

adjudication of guilt, all proceedings including assessment

of punishment, pronouncement of sentence, granting of

community supe r vision and your right to appeal continue

as if adjudication of guilt had not been deferred.

. . . .

Upon receiving discharge and dismissal of deferred

adjudication community supervision under Sec. 5 (c),

Art. [ ]4 2.12, T EX

. C ODE OF C RIMINAL P ROCEDURE , and

unless you are ineligible because of the nature of the

offense for which you are placed on deferr ed adjudication

community supervision, or because of your criminal history,3 you may have a right to p etition the Court for an order of

nondisclosure under Section 411.081, T EX

. G OVERNMENT

C ODE

. (initials).

11. Community Supervision : If the Cour t grants you community

supervision as opposed to deferred adjudication, upon violation of any imposed condition, you may be arrested

and detained as provided by law. You will then be entitled

to a hearing limited to the dete rm ination by the court,

without a jury, whether to revoke your community

supervision and sentence you to confineme n t for a period

of time not to exceed that originally assessed by the Court

at the time you were found guilty. (initials)

.

Appellant ’ s handwritten initials appear in both blanks in the above portion of the

plea paperwork.

Appellant ’ s plea paperwork also include s a list of waivers:

WRITTEN WAIVERS OF DEFENDANT

– JOINED BY ATTORNEY

Comes now the Defendant, in open Court, joined by my attorney and

states:

(A) I am able to read the English language. I fully understand

each of the above written plea admonishments given by the

Court and I have no questions.

. . .

. . . .

(C) I am aware of the consequences of my plea;

(D) I am mentally competent and my plea is knowingly, freely, and

voluntarily entered. No one has threatened, coerced, forced,

persuaded or promised me anything in exchange for my plea;

. . . .

(J) I am totally satisfied with the representation given to me by my

attorney. My attorney provided me fully eff ective and

competent representation;

. . . .4 (P) I give up and waive the attendance and record of a court

reporter under Rule 13.1, T EXAS R ULES OF A PPELLATE

P ROCEDURE ; [ and ]

. . . .

(S) I request that the Court approve the plea recommendation set

out above, and dispose of my case in accordance therewith

.

. . . .

_____________ DEFENDANT

Appellant ’ s signature fills t he blank labelled “DEFENDANT” at the bottom of the

list of waivers. Under his signature appears the following:

I have fully reviewed and explained the above and foregoing

court admonishments, rights, and waivers

, as well as the following

judicial confession to the Defendant. I am satisfied that the

Defendant is legally competent and has intelligently, knowingly, and

voluntarily waived his rights and will enter a guilty plea

understanding the consequences thereof.

. . .

ATTORNEY FOR DEFENDANT

Appellant ’s trial counsel signed the blank indicated.

Appellant ’ s sworn judicial confession, in which he c onfesses his guilt to the

charged offense, and his sworn application for community supervision follow the

waivers section of the paperwork

.

B. The Trial Judge Followed the Plea Bargain.

The trial judge honored the agreement, placing Appellant on deferre d

adjudication community supervision for two years and setting community

supervision conditions. In addition to the plea paperwork described above,5 Appellant signed a n “ Agreement to Return [and] Waiver of Extradition. ” In that

document, he agreed to, amo ng other things, “ comply with the conditions of

community supervision. ” Appellant also signed a copy of his “ Conditions of

Community Supervision ” and the trial judge ’ s certification of his right to appeal.

C. Appellant Complained About the Bargain on th e Day He Made it.

After the hearing on the plea bargain but on the same day, Appellant wrote

a letter to the trial judge, claiming that

• His attorney told him before he agreed to the bargain that he would

“ not have to do community supervision probation ” ;

• Th e community supervision conditions were not mentioned during

the plea hearing;

• After the hearing, he “ was rushed to sign and fingerprint multiple

sheets of paper without having an appropriate amount of time to

thoroughly review each document ” ;

• A “ courtroom official ” printed out the community supervision

conditions and told him that he had to “ go speak with a [ community

supervision] officer only one time . . . and that was it ” ;

• The same official told him that deferred adjudication is the same as

“ community s upervision probation ” ;

• At around 12:45 p.m., Appellant “ noticed a lot of additional

punishments, requirements[,] and fees involving the community

supervision probation that were not mentioned in the court hearing

and were not a part of the agreement ” ;

• Appe llant called his trial counsel and told him that he had not agreed

to the extra conditions not discussed in the hearing;

• Appellant ’ s trial counsel said he would file a motion to modify the

following week;6 • “ The court[] imposed a punishment significantly gre ater and

different[] than the plea agreement [provided] at the time it was

entered ” ;

• The court “ mistakenly imposed 2 year [s ’ ] community supervision

probation in exchange for confinement time ” ;

• “ T hat was not a part of the agreement . . . , because [he] was

confined for a long enough amount of time for some to be given time

served, at the judge ’ s discretion ” ; and

• Appellant wanted the trial court to modify the plea bargain.

D. About Seven Months After the Trial Judge Placed Him on Deferred

Adjudication Comm unity Supervision, Appellant Filed an Application

for Writ of Habeas Corpus , and the State Filed a Response.

In his application for writ of habeas corpus filed in the trial court

, Appellant

contends that his guilty plea was not knowing, intelligent, or vo luntary and that he

was denied effective assistance of counsel. Specifically, Appellant complains

that in describing the plea offer, his trial counsel told him that the prosecutor was

not recommending community supervision and advised him to “ go ahead and

sign the papers. ” Appellant argues that (1) his trial counsel committed ineffective

assistance of counsel by not explaining to him that deferred adjudication is a type

of community supervision and (2) if he had known that deferred adjudication was

a type of community supervision and that he would have to comply with

community supervision conditions other than paying his fine and committing no

other crimes, he would not have pled guilty but would have instead pled not guilty

and gone to trial. Appellant s eeks court costs and the withdrawal of his guilty

plea. As support, Appellant attaches his own affidavit and a copy of the7 conditions of community supervision, and he refers to the indictment, the plea

paperwork, the letter he wrote the trial judge on May 12, 2017, and an email

including a slightly different version of that letter.

The State filed a response to Appellant ’ s application , arguing that

Appellant ’ s claim should be denied because he had failed to prove that his plea

was involuntary due to inef fective assistance of trial counsel. In support of its

contention, the State point s to the various, relevant portions of the plea

paperwork that Appellant had initialed or signed, proof that he had received a

copy of the conditions of community supervisio n on the day of his plea, and his

signed waiver of extradition.

E. The Trial Judge Denied Habeas Relief.

The trial judge denied Appellant ’ s requested relief, adopting the findings of

fact and conclusions of law proposed by the State:

FINDINGS OF FACT

1

. Applicant was charged with the state jail felony offense of

Possession of a Controlled Substance.

2. Applicant filed an application requesting community

supervision.

3. According to Applicant, his plea counsel advised him to sign

the documents necess ary to receive community supervision.

4. A pplicant pleaded guilty to the state jail felony Possession

of a Controlled Substance.

5. When Applicant pleaded guilty, he was admonished in writing

i n accordance with art. 26.13.

6. Applicant ’ s admonishment s include two signatures by

Applicant.8 7. Applicant initialed paragraph 10 of the admonishments whic h

explained that “ should the court defer adjudicating [his] guilt

and place [him ] on community supervision, upon violation of

any imposed condition, [he] may be arrested and detained as

provided by law. ”

8. Applicant received the conditions of community supervision in

open court on May 12, 2017.

9. In his waiver, Applicant signed that he understood the

admonishments; he was aware of the entire range of

pu nishment; and that he was pleading freely, knowingly, and

voluntarily.

10. Applicant signed an Agreement to Return Waiver of

Extradition, in which he agreed to comply with the conditions

of community supervision including a requirement that he stay

in Tarr ant [C] ounty unless given permission to leave by his

Community Supervision Officer, and in which he waived

extradition from any jurisdiction in the case that he violates

any of the term s of community superv ision

.

11. Applicant received community supervis ion in accordance with

his request.

CONCLUSIONS OF LAW

1. In a habeas corpus proceeding, the burden of proof is on

the applicant

. An applicant must prove by a preponderance

of the evidence that the error contributed to hi s conviction or

punishment.

2. In order to prevail, the applicant must present facts that, if

true, would entitle him to the relief requested. Relief may be

denied if the applicant states onl y conclusions, and not

specific facts. In addition, an applicant ’ s sworn allegations

alone are no t sufficient to prove his claims.

3. There is a presumption of regularity with respect to guilty

pleas under Texas Code of Criminal Procedure art. 1.15.

4. Before accepting a guilty plea, the court must admonish the

defendant as to the consequences of his plea, including

determining whether the plea i s freely, voluntarily, and

knowingly given.9 5. Applicant was properly admonished in accordance with Tex.

Code Crim. Proc. Art. 26.13.

6. When a defendant complains that his plea was not voluntary

due t o ineffec tive assistance of counsel, 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 e rrors, he would not have pleaded guilty

and would have insisted on going to trial.

7. Counsel ’ s advice was consistent with Applicant ’ s desire for

community supervision.

8. Applicant has failed to prove that Counsel ’ s advice was not

within the range of co mpetence demanded of attorneys in

criminal cases.

9. Counsel ’ s advice was within the range of competence

demanded of attorneys in criminal cases.

10. Applicant has failed to prove that but for counsel ’ s errors, he

would not have pleaded guilty and would ha ve insisted on
going to trial.

11. Applicant has not overcome the presumption that his plea

was regular.

12. Applicant has failed to prove that his plea was not voluntary

due t o ineffective assistance of counsel.

13. Applicant ’ s plea was regular.

14. Appli cant ’ s plea was voluntary.

[Citations and selected internal quotation marks omitted.]

II. DISCUSSION

A. We Review the Trial Judge ’ s Denial of Habeas Relief for an Abuse of

Discretion.

We generally review the denial of relief under article 11.072 for an abuse

of discretion. See Ex parte Mello , 355 S.W.3d 827, 832 (Tex. App.

— Fort Worth10 2011, pet. ref ’ d). “We review the evidence in the light most favorable to the

habeas court ’ s ruling” and “afford great deference to the habeas court ’ s findings

of facts a nd conclusions of law that are supported by the record.” Id. This

deferential review applies even when , as here, the findings of fact are based on

the record and an affidavit rather than on live testimony. See i d. ; see also

Ex parte Wheeler , 203 S.W.3d 317, 325

– 26 (Tex. Crim. App. 2006) ; Ex parte

Tamayo

, No. 02

- 17

- 00135

- CR, 2017 WL 6047731, at *4

– 5 (Tex. App.

— Fort

Worth Dec. 7, 2017, no pet.) (mem. op., not designated for publication)

.

B. The Trial Judge Did Not Abuse Its Discretion by Finding that

Appel lant’s Guilty Plea was Made Knowingly and Voluntarily.

An applicant seeking habeas relief under article 11.072 based on

ineffective assistance of trial counsel has the burden of proving that

ineffectiveness by a preponderance of the evidence. Ex parte Torres

,

483 S.W.3d 35, 43 (Tex. Crim. App. 2016). To prove ineffective assistance, the

applicant must demonstrate that (1) trial counsel’s representation fell below an

objective standard of reasonableness and (2) but for counsel’s deficiency, “there

is a reasonable probability of a different outcome.” Id. An applicant like

Appellant who collaterally challenges his guilty plea satisfies the prejudice prong

by showing t hat “but for counsel ’ s errors, he would not have ple [d] guilty and

would have insisted o n going to trial.” Id. (quoting Hill v. Lockhart

, 474 U.S. 52,

59, 106 S. Ct. 366, 370 ( 1985) )

.11 When the record shows that an applicant was properly admonished, it

presents prima facie evidence that his guilty plea was knowingly and voluntarily

made. Mar tinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Ex parte

Colson , No. 07

- 16

- 00447

- CR, 2017 WL 4341449, at *3 (Tex. App.

— Amarillo

Sept. 29, 2017, no pet.) (mem. op., not designated for publication) . An applicant

may overcome this prima facie evi dence by demonstrating that he did not fully

understand the effects of his guilty plea and was therefore harmed. Martinez

,

981 S.W.2d at 197; Colson , 2017 WL 4341449, at *3. But an applicant ’ s

unco rr oborated testimony that counsel gave him mis information or bad advice is

insufficient to meet t his burden. Colson , 2017 WL 4341449, at *3; Arreola v.

State , 207 S.W.3d 387, 391 (Tex. App.

— Houston [1st Dist.] 2006, no pet.); see

Crumpton v. State , 179 S.W.3d 722, 724 (Tex. App.

— Fort Worth 2005, pet.

ref’d).

He re, Appellant was admonished in writing in accordance with article

26.13. See Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2017). N othing

in the plea paperwork indicate s that trial counsel did not explain deferred

adjudication community supervision to Appellant or that he did not fully

understand the requirements thereof , and Appellant affirmatively requested

community supervision and swore that he understood the admonishments and

the range of punishment and that his guilty plea was intelligent, know ing

, and

voluntary. Appellant points only to his own words, whether by letter to the trial

judge or affidavit attached to his application, as evidence that he did not fully12 understand the consequences of his plea. Those uncorroborated words are not

enoug h for this court to override the trial judge’s credibility determinations

. See

Colson , 2017 WL 4341449, at *3; Arreola , 207 S.W.3d at 391; Crumpton

,

179 S.W.3d at 724. We therefore hold that the trial judge did not abuse his

discretion by (1) rejecting A ppellant’s contention that his guilty plea was not

intelligently, knowingly, and voluntarily made and (2) denying his requested relief.

III. CONCLUSION

Having held that the trial judge did not abuse his discretion by denying

Appellant’s requested habeas relief under article 11.072, we affirm the trial

court’s order

.

/s/ Mark T. Pittman

MARK T. PITTMAN

JUSTICE

PANEL: MEIER, GABRIEL, and PITTMAN, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 7, 2018