COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-08-129-CR

	EX PARTE BRUCE PATTERSON

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	FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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	MEMORANDUM OPINION1

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	Appellant Bruce Patterson appeals the trial court’s denial of relief requested in his application for writ of habeas corpus.  We affirm.

	On April 17, 1996, appellant pleaded nolo contendere to driving while intoxicated.  The trial court issued a probation order memorializing appellant’s bargained-for plea and ordering him to serve two years’ probation.  Appellant timely filed a motion for new trial and a notice of appeal.   

	On August 23, 1996, while the appeal was pending, the trial court granted appellant’s motion for new trial and issued a second probation order in the same cause memorializing a second plea agreement in which appellant agreed to plead guilty in exchange for two years’ probation.  We then dismissed appellant’s appeal as moot, noting that the trial court had granted a new trial.2 

	On August 31, 1998, the trial court found that appellant successfully completed the terms of his probation and discharged appellant from probation.   	On October 18, 2007, appellant filed with the trial court his Application and Brief for Issuance of Writ of Habeas Corpus, alleging that he was denied effective assistance of counsel, that his first plea was involuntary, and that the trial court lacked jurisdiction to accept appellant’s second plea.  The trial court denied the requested relief, and this appeal followed. 

	A person who has completed a term of community supervision for a misdemeanor offense may attack the validity of the conviction by applying for a writ of habeas corpus from the convicting court.3  The writ issues by operation of law.4  The court’s ruling on the application for the writ is appealable.5 

	We review a trial court’s decision to grant or deny the relief requested on a writ of habeas corpus under an abuse of discretion standard.6  In reviewing the trial court’s decision, we review the record in the light most favorable to the trial court’s ruling.7  We pay almost total deference to the trial court’s determination of historical facts that are supported by the record, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.8  This deferential review applies even when “no witnesses testify and all of the evidence is submitted in written affidavits.”9  In a habeas proceeding, the applicant has the burden of proving that an error contributed to his conviction or punishment.10 

	Appellant contends that the trial court had no authority to grant a new trial, to take a second plea, and to issue a second probation order.  We agree.  The original order upon which appellant based his motion for new trial was signed on April 17, 1996.  Appellant filed his motion for new trial on May 10, 1996.  On July 1, 1996, the motion was overruled by operation of law.11  Thus, on August 23, 1996, when the trial court granted the motion for new trial, took a new plea and ordered that appellant be placed on probation, it did so without jurisdiction.  Consequently, the second probation order was void.  To determine whether appellant is entitled to habeas relief, however, we must decide whether the first probation order also is void.

	Appellant argues that the first probation order of April 17, 1996, is void because his court-appointed trial counsel provided ineffective assistance which rendered his plea involuntary.  Specifically, appellant alleges that, following his arrest, his trial counsel advised him that he could either stay in jail until counsel reviewed the state’s evidence or accept the plea bargain that was being offered; that a conviction would not affect his commercial driver’s license; and that he could not obtain a new bond.  Thus, appellant contends he pleaded nolo contendere12 “under duress as I was desperate to keep my job which required I stay out of jail.”

	“The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.”13  When a defendant challenges the voluntariness of a plea based on the advice of counsel, alleging that his counsel was ineffective, appellant has the burden to show 1) that counsel’s performance fell below a reasonable standard of competence and 2) that appellant would, with a reasonable probability, have pleaded not guilty and insisted on going to trial had counsel not committed the errors alleged by appellant.14

	The thrust of appellant’s ineffective assistance complaint is that he pleaded nolo contendere to avoid losing his job.  None of his affidavit testimony demonstrates that his plea was based on trial counsel’s alleged advice.  Nor is there any allegation or evidence in the record of deficient conduct that prevented appellant from obtaining a new bond.  Therefore, appellant has not met his burden of establishing that counsel’s performance fell below a reasonable standard of competence, or that appellant received objectively deficient representation.15 

	Because appellant has failed to meet his burden of showing that his first plea was involuntary, the trial court did not abuse its discretion in denying appellant’s application for writ of habeas corpus.  The trial court’s judgment is, therefore, affirmed.

								PER CURIAM

PANEL:  CAYCE, C.J.; DAUPHINOT and HOLMAN, JJ.

DO NOT PUBLISH	

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

DELIVERED:  September 4, 2008