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-297-W011201-1488359-AP

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MEMORANDUM OPINION1

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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 contends that his guilty plea was not knowing, intelligent, and 

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

2The same trial judge who placed Appellant on deferred adjudication 

community supervision denied his requested relief under article 11.072. For 

simplicity’s sake, we 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 entitled. 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 

paperwork provides 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 determination by the 

Court, without a jury, whether to proceed with an 

adjudication of your guilt upon the original charge. This 

determination 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 supervision 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.[ ]42.12, TEX. CODE OF CRIMINAL PROCEDURE, and 

unless you are ineligible because of the nature of the

offense for which you are placed on deferred adjudication 

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

nondisclosure under Section 411.081, TEX. GOVERNMENT 

CODE. (initials).

11. Community Supervision: If the Court 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 determination by the court, 

without a jury, whether to revoke your community 

supervision and sentence you to confinement 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 includes 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 effective and 

competent representation;

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

reporter under Rule 13.1, TEXAS RULES OF APPELLATE 

PROCEDURE; [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 the 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 confesses 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 deferred 

adjudication community supervision for two years and setting community 

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

document, he agreed to, among 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 the 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”;

• The 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 supervision 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”;

• Appellant 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;
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• “The court[] imposed a punishment significantly greater 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”;

• “That 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 Community 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 voluntary 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 seeks court costs and the withdrawal of his guilty 

plea. As support, Appellant attaches his own affidavit and a copy of the 
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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 ineffective assistance of trial counsel. In support of its 

contention, the State points 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 supervision 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 necessary to receive community supervision. 

4. Applicant pleaded guilty to the state jail felony Possession

of a Controlled Substance.

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

in accordance with art. 26.13.

6. Applicant’s admonishments include two signatures by 

Applicant. 
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7. Applicant initialed paragraph 10 of the admonishments which

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

punishment; 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 Tarrant [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 terms of community supervision.

11. Applicant received community supervision 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 his 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 only conclusions, and not

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

alone are not 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 is freely, voluntarily, and

knowingly given.
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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 to ineffective 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 errors, 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 competence 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 have 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 to ineffective assistance of counsel.

13. Applicant’s plea was regular.

14. Applicant’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 Worth 
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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 and 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 id.; 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 

Appellant’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 that “but for counsel’s errors, he would not have ple[d] guilty and 

would have insisted on going to trial.” Id. (quoting Hill v. Lockhart, 474 U.S. 52, 

59, 106 S. Ct. 366, 370 (1985)).
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When the record shows that an applicant was properly admonished, it 

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

made. Martinez 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 evidence 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 

uncorroborated testimony that counsel gave him misinformation or bad advice is 

insufficient to meet this 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).

Here, Appellant was admonished in writing in accordance with article 

26.13. See Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2017). Nothing 

in the plea paperwork indicates 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, knowing, 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 fully 
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understand the consequences of his plea. Those uncorroborated words are not 

enough 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 Appellant’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