Affirmed and Opinion filed December 22 , 2020

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00898

- CR

EX PARTE WALTER D. ALLEN, JR. , Appellant

On Appeal from the 183rd District Court

Harris County, Texa s Trial Court Cause No. 1339605A

O P I N I O N
Appellant Walter D. Allen , Jr. appeals from the trial court ’ s order denying
his application for a writ of habeas corpus, filed un der article 11.072 of the Texas
Code of Criminal Procedure. We affirm the trial court ’ s denial o f app ellant ’ s applicatio n

. I. F A CTUAL AND P ROCEDURAL B ACKGROUND
In 2012, a

ppellant entered a “ guilty ” plea to the offense of attempted thef t. As part of his plea agreement, t he trial court sentenced a ppella nt to ten years ’
confinement in the Texas Department of Cr iminal Justice b u t s uspen ded that2

sentence for ten years and placed a ppellant on community supervision for that

term

. At the half

way point in the community

- supervision term, a ppellant moved
the trial court to term inate his community sup ervision

. The trial court heard a n d disposed of a ppellant ’ s motion , and issued an order en titled “ Order Affecting Community Supervision ” ( “ 2017 Order ” ).
According to appellant ’ s appl ication for a w rit of h abeas c orpus , filed two years later, the trial court granted his motion to term in a te c ommu nity supervision
in the 2017 Order

. In t he h abeas application , appellant allege d that the Harris County C ommunity Corrections and Supervisions Department conti nued to require compliance with community supervision in alleged violation of th e 2017 O rd e r

. Appell ant at tached to his appli cation an unofficial copy of the court ’ s 2017 O rder and a printout of a scre enshot of the Harris County C lerk ’ s website , which
i ncluded an entry on March 15, 2017 , for an order en title d “ Disposi tion

– Termination Defer re d Adjudicatio n

. ”

The S tate did not file an answer in the habeas proceeding but appeared at a hearing hel d in September 2019. The hearin g was not recorded , and according to appellant ’ s briefing, no par ty offered evid ence at th e hearing , and app ellant r el i e d
on the two do cuments attached t o his a pplication . Both appellant and the State agree that at the hearing the trial court stated that it denied appellant ’ s application.

Followin g the hearing , the S tate filed pr opos ed fi nding s of fact and
conclusions of l aw , along with a proposed order denying appellant ’ s application.
A ppel lant filed written objections to the S tate ’ s proposed findings of fact and
conclusions of law

. The trial court adopted and issued those finding s of fact and
conclusions of law a l o n g w i t h th e o rder denying appellant ’ s application

. App ellan t has a ppeal ed this order under s ection 8 of article 11.072 of the Code of Criminal
Procedure , which provides that an applicant for habeas corpus re lief under a rticle3

11. 072 may appeal the court ’ s de n i a l of th e habeas

- corpus application

. See Te x. Code Crim. Pro. Ann. art. 11.072 , § 8.

I I

. I SSUES AND A NALYSIS We review a ruling on an application f or writ of habeas corpu s for an abu se of discretion. Ex parte Garc ia , 353 S. W.3d 785, 787 (Tex. Crim. Ap p

. 2 011). W e decide whether a trial court abused its discretion by determining whether the court acted without reference to any guiding rules or princip les, or in other words, whether the court acted arbitrarily or unr easonably

. See Ex parte Wolf , 296 S .W

. 3 d 160, 16 6 (Tex. App.

— Houston [14th Dis t.] 2009, pe t. ref ’ d). A trial court abuses
its discre tion if its decision lies outside the zone of reasonable disagreement. Id

. An applicant seeking post

- conviction habeas

- co rpus relie f shoulders the burden to

es t a bl ish by a preponde rance of the evidence that the facts enti tle the applicant to relief. Id

. In reviewing the trial court ’ s ruling on an application for habeas relief, we
examine the ev idence in the habeas reco rd in the light m ost favorable to the t ria l

court ’ s ruli ng. Kni att v. State , 206 S.W.3d 657, 66 4 (Tex. Crim. App. 2006). The
trial court stands as the sole finder of fact in a post

- conviction applic ation for writ of habeas corpus filed under article 11 .072. Ex pa rte Torres , 483 S .W.3d 35, 42 (Te x

. Crim. App. 2016). We afford almost complete deferenc e to the habeas

court ’ s determination of historical facts supporte d by the recor d , especially when
those factua l finding s rest up on an evaluation o f the witness es ’ credibilit y and
demean or. Ex p art e Ree d , 402 S.W.3d 3 9, 42 (Tex. App.

— Hous ton [14 th Dis t.]
2013 , pet. ref

’ d) . We apply the same deference to review the habeas court ’ s application of law to fact questions if resolving those determinations rests upon an eval uation of cr ed ibility and demeanor; if the o utcome of those ultim ate que stions turns upon an applic ation of legal standards, we review the habeas court ’ s4

determination de novo. Id. We will uphold the trial court ’ s ruling as long as it is correct on any th eory of law applicable to the case

. Ex parte Taylor , 36 S. W.3d
8 83, 886 (Tex. Crim. App . 2001) (per curi am).

A. Did the trial court err in finding the appellant failed to carry his burden of show ing the trial cou rt previously had terminated his communi ty super vision ?
I n his first issue, ap pellant argues that the habe a s c ourt erred in allegedly

re viv ing community supervision after the court allegedly terminated community supervision in the 2017 Order

. T aking the position that the tri al court earlier had

g ranted his motion to terminate commu nity supervision and dra wing f rom the legal premise that c ommunity s u pervision can not be revived after it h as been terminated , appellant argues that the habeas court erred wh en it reinsta ted community

superv ision after i nterpreting its previous order to be one denying appellant ’ s
mot i o n to terminate supervision

. Appellant attached a n uncertified copy of the 2017 Order and supp lemented
his h ab eas application with a copy of a screen shot of the Harris County District
Clerk ’ s website indicating an o rder issue d o n th e same date conta ined t he title

“ Disposition

– Termination Deferred Adjudication ”

. Appellant provided no other support for his application. W e have no record of the habeas hearing and neither party contends that the parties offered or the trial co urt admitted evi dence at the
h earin g. In evaluating whether appellant satisfied his burden, we will presume for the sake of argument that that the trial court co nsidered the two items attach ed to appellant ’ s application as evidence at the habea s hearing

.
T h e 2017 Order is made on a s tandar dized , pre
- printed form , with a handwr itten comment by the ju dge , a long with a handwritten date , and the judge ’ s signature

. The pre
- pri nted form contains three distinct sections , with two horizontal double

- line d breaks r unn ing ac ross th e page, the fi rst of which5

d emarcat es a division betwee n the t op section in which the judge makes a finding
and the middle “ Motion Denied Section , ” and the second double

- lined break
demarcat es a division between the “ Motion Denied Section , ” a nd the bottom
“Motion Grante d Section. ” The ent ire form contain s a number of selection boxes that represent an array of choices pertinent to the disp osition of various types of
motion s to terminate community supervision

. Only the “ Motion Denied Section ”

ap pears to be f

illed o ut by ha nd , with one box mark ed “X ” indicating a “ c omment ”
stated as “ Due to Nature of offense ” and a handwritten date and the ju dge ’ s signatu re under the text : “ Accordingly, the Court ORDERS defendant ’ s motion to
terminate c ommunity su

pervision den ied

. ” N o date or signatu re appear s below the language in the “ Motion Granted Section , ” which states: “ Accordingly, the Court
ORD ERS defendant ’ s community supervision terminated

. The Court further ORDERS, ADJUDGES AND DECREES that th e defendant is discharged

acc ording to l aw ”

. The habeas cour

t found that t wo boxes on the page were checked
electronicall y while the document w as in its electronic f orm ( before printing ) . The
first ele ctronically

- checked box appears i n the top section ; if this mark were inten ded , it would lend th e form to read: “ After considering the community

s upervision officer ’ s rec ommendation and other evid ence, the presiding judge
finds that the Defendant:

. . . [e lectronically checked box ]

. . . “ has satisfactory
ful filled the condition of supervi sion imposed by the court under the Texas Code of
Crimina l Proced

ure and/or Chapter 481 of the T exas Health and Safe ty Code.” The only other content in the top section is an unchecked box stating the
alternative

- finding opti on , t hat appellant “has not sa t isfactory fu l filled the

co ndition of supervision imposed by the court under the Texas Code of Crimina l Procedure and/or Chapter 481 of the Texas Health and Safety Code”

.6

An ele ctronically

- checked box appears in the “ Motion Gr anted Section ” next

to “ Deferre d Adjudication E arl y Termination

. ” C hecking this box selects the
foll owing two sen tences to th e right of the checked box on the pre
- pr inted form :

“ The best interests of the defendant and society will b e served by the early

t erminat ion o f defendant ’ s super vision period. T he Court has not proceeded to a n adj udication of guilt during the period of supervision

. ” 1 T he “ Motion Granted
Section ” is neither signed n or dated.

When a trial court’s order is unambiguous , we construe th e order as a whole
and declare i ts intent in lig h t of the literal language used, without considering
matters extrinsic to the order. State v. Atkinson , 541 S.W.3d 876, 879 (Tex. App.

— Houston [14th Dist.] 2017 , no pet.). It appears that the habeas court f ound
that the court did not inte nd to adopt the t e xt in the pre

- printed boxes. In any event, even presuming that the trial court made the findings indicated by the pre

printed boxes and that these findings are contrary to a denial of the motion to

term ina te, nothing indicates that the t rial court adopt e d t he language of the
“Motion Granted ” heading , much less that it adopted the adjudicative language at
the base of that section so as to indicate that the trial court granted the motion to
terminate

. T hus, u nder the governing standard, the character and s u bstance of the
order stands as an unambiguou s denial of the motion to termina te , as reflected in
the hand

- marked “ Motion Denied Section ”

. Se e id

. In denying a motion to

ter minate, t he court may make findin gs that conflict with this rulin g. These findings do not show that the court g r a nted the mo tion.

I n this conte xt, c onstruing the order as granting the motio n to terminate

1 The “ M otion G ranted S ection ” c ontains three other options, inc luding one opt ion pertaini ng to ad j ud icated convictions with suspended sentences (as op posed to deferred adjudication) , stated

as “ Th e Defendant has satisfact o rily fulfilled the conditions of supervision imp o sed by the Court for two (2) yea rs or more for m ore than one

- t hird (1/3) o f the ti m e to which defendant was sentenced to communi ty supe rvision.”7

would not be reasonab le. See id. We conclude that the order is unambiguou s and

u nder its plain wording the trial court denied the m oti on to term inate. See id

. Based on the order ’s plain language, and appropriately guided by the order’s substantive text, we conclude that the trial court did not grant the motion to

ter minate

. See id

. Appellant ’ s supplemental evide nce ( the sc reensho t of the
clerk ’ s characteriza t ion of the 2017 O rder ) does not show that the trial court

gr anted the motion to term inate, and in any event, it is ex trinsic evidence. See id

.
N eit her party has indicated wh ether a hearing took place in conne ction with the app e l lant ’ s 2017 motion to termin a te community supervision

. Nor do we have

a record of the motion to terminate or any evidenc e offered in support of it

. Appellant did n ot bring forth a co ntr adicting oral p ro nouncement

. Because we conclude that the 2017 Ord e r is an order denying a motio n to terminate community supervision and t hat the court has granted no other motion to terminate , we overrule appellant ’ s firs t issue

. See Ex parte Taylor , 36 S.W.3d at 886

. B. Did the trial court commit re versible error whe n it implicitly overrul ed appellant ’ s objection s to the State ’ s p roposed f indings of f

act and c onclusions of l aw ? Appellant ’ s second issue re la tes to the State ’ s post

- hearing fi ling of

propo sed findings of fact and conclusions of law. Li b erally construed , appellant ’ s brief contain s a complai nt that the tri a l court erred in adopting findings of fact
based on evi dence the State provided post

- hea ring , whi ch appellant contends th e S tate had waived any right to present

. The four attachments co nsisted of the following documents :

• Exhibit A, wh i ch include d (1) the March 15, 2012 Judgment of Conv i ction indicating appellant ’s “ guilty ” plea to the second degree felony of a ttempted the ft , signed by the judge (2) the Origin al Conditions for Community Supervision , signed by appellant and the court on the same date , and (3) First A mended8 Conditions for Co mmunity Supervision , signed by appellant and the court on July 27, 2012.

• E xhibit B, whi ch included the court’s dismissal of f orgery charges on March 1 5 , 2012 ;

• Exhibit C, a certified copy of the May 15, 20 1 7 Order Af fecting Communit y Supervision ; and

• Exhibit D , a blank form en titled, “ Order o f Early Discharge From Community Supervision (Probation) ” wi th a form vers ion date d January 2018. Appellant asser t ed no specific objection to any of these items , but objected only to

t he ir alleged u n timeliness a n d the State ’ s sta nd ing to submit them

. To the e xtent that appellant ’ s complain t is that the State ’ s failure to file an answer operated as a
default , or t hat the State ’ s f ailure to file a

n answer shift ed appellant ’ s burden, we d is agree. The sta t ute provides that the Sta te “ is not required to file an answer, ” and
that “ [m ]atters alleged in the applicati on not admitted b y the state are consider ed to
have been d e nied. ” Tex. Crim. Proc. Code Ann. Art. 11.072, § 5( b ) & ( e).

We als o consider appellant ’ s second issue to the exten t that appellant arg ues
t he trial court er r ed in permitting t he Stat e to submit e vidence after the hearing on Septem ber 2019 . First, as t h e State point s out, its sub mission of proposed findings
of fact and c o nclusions of l aw are not govern ed by a particul ar d eadline

. However , we wi ll presume for t he sake of argument that the trial c ourt erred in faili ng to sustain appellant ’ s objections a nd then consider whet her the supposed error would
be harmful

. The parties ag r ee that the court already had s tated i ts ruli ng

. The
record shows that a t the time the h earing ended, appell ant had failed to satisfy his own burden of proof

. T he State ’ s supplyin g o f evidence afterwards does not
chan ge appellant ’ s failure to prove ent i tlement to the reli ef sou ght. Even ignoring
al l of the evidence su bm itted by the St ate , the record still does not show that the
habeas court er

red in c oncluding that the tria l court denied the moti on to terminate9

community supervisio n or in denying the a p plication

. See Wilkinson v . S tate , 523
S.W.3d 818, 825

– 26 (T ex. App.

— Hou ston [1 4 th Dist.] 2017, pet. ref ’ d) (finding
harmless an y error in the admission of emergenc y medical s ervice s report narrative containing domestic assault victim’s statement )

. Any er r or in considering the
State ’ s evide nce would be har mless. Se e i d

. W e the refore o v errule appell ant ’ s second issue.

I II

. C ONCLUSION

Beca use appellant ’ s issu es lack m erit on rev iew o f the habeas court ’ s ruli ng ,

we overrule his challenges and affirm the tri a l court ’ s judgment denying h abeas
relief

.

/s/ Kem Thompson Frost Chief Justice

Panel c onsis ts of Chief Justi c e Frost and Justi ces Zi mmerer and Po issant

. Publ i sh

— T EX

. R. A PP

. P. 47.2(b).