### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00523
- CR

Ex parte Judy Morales

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY NO. 2C14
- 02036 , THE HONORABLE JOHN MICHAEL MISCHTIAN , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
In 2014, Judy Morales pled no contest to destroying , mutilati ng, or removing public information based on allegations that she deleted email s from her county

- issued laptop.
S ee Tex. Gov ’ t Code § § 552.351 (a) ( “ A person commits an offense if the person wil l fu l ly destroys , mutilates, removes without permission as provided by this chapter, or alters public information. ” ) , .002(a) (defining “ public information ” ). T h e t rial court placed her on deferred

- adjudication community supervision for nine months. In ea r ly 2017, Mo r ales filed a petition f or wri t of habeas c orpus alleging that her plea was involuntary because she received ineffective assistance of counsel

. See generally Tex. Code Crim. Pro c . art. 11.072 ( setting out procedures for s eeking habeas relief f r om order or judgment imposing community supervision)

. Morales appeals from the trial court ’ s order denying relief. See id. , § 8 ( “ If the application is denied in whole or part, the applicant may appeal under Article 44.02 and Rule 31, Texas Rules of App e llate Procedure. ” ). We will affirm

.2 BAC KGROUND 1
In Octobe r 2013, Morales retired f rom her position as the director of t he H .E.L.P. Center

— which is operated by Bell County

— b ut cont inued to serve in a volunte er capacity until

a replacement could be found. On Thursday, November 7, 2013, Moral es called one of the

c enter ’ s employees, Matilda Tames

- Paul, to tell her about rumors that the Temple D aily
T e le gra m planned to file an open records request seeking information regarding

“ misappropriation of funds ” rela t ed to Morales ’ s successful 2011 election campaign for the Temple City C ounci l.

Morales and Tames

- Paul exchanged several calls over the following th ree days.
Tames

- Paul prepare d and submitted to Bell C ounty ’ s huma n resources department summarizing th es e calls . According to that document, Morales cal led Tames

- Paul the following morning for help transferring documents from her work compute r to an external hard drive. After that was complete, Morales instructed Tames

- Paul to “ delete any files we weren ’ t c urrent ly working on ”

as well a s “ any old documents and brochures

. ” L a ter that same day, a reporter with Temple Daily Telegram called the Center and asked if any emp loyee would com ment o n whether they had worked on Morales ’ campaign during work hours. T h e followi ng day, Morales called
Tames

- Paul and inst r ucted her to “ eras e any election documents. ” More specifically, she directed Tames

- Paul to erase “ anything wi th my campaign. Whether it was those fliers or any emails. Anything that is betw een January 1 of 2011 and May 31 of 2 011. ” Morales fu rther stated that she “ wen t ahea d and deleted all this stuff ” from her work comp uter.

1 We take this factual description from the tes timony at the hearing before the habeas court and the doc uments Morales attached t o her petit ion , whic h were admitted into evidence.3 I n March 201 4, the Bell C o unty Attorney filed an information charging Morales with destroying or r emov ing emails that w ere public information

. Mo rales pled no contest, and the trial court entered an order of deferred adjudication placing her on community supervision fo r nine months. In early 201 7, Mo rales filed a n application for writ of habeas corpus asserting that her plea was i nvolunta ry bec ause she rece ived ineffec tive assistance of counsel

. S p ecifically, Morales argued that her trial counsel failed to advise her that emails related to a poli tical campaign are not p u blic info rmation

. Sh e attached to her applicatio n the information, an affi davit stating that she pled no contest solely because of her lawyer ’ s advice , and
Tam es - Paul ’ s st atement

.

The trial court de nied the application as frivolous

. S ee Tex. Code Crim. Pro c . art. 11.072 , § 7(a) ( “ If the court d etermines from the face of an applic ation or documents attached to the application that the applicant is mani festly entitled to no relief, the court shall enter a written order denying the application as frivolous. ”). Th is Court r eversed and remanded for the trial court to addre ss the merit s of the application

. S ee Ex parte Morales , No. 03

- 17

- 00461

- CR, 2018 WL 417127 1, at *4 (Tex. App.

— Austin Aug. 31, 2018, no pet.) (mem. op., not designated for publication). Following a hearing on t he application at wh i ch Morale s testified , 2 t he trial cou rt signed an order denying the application on the merits with findings of fact and conclusions of law

. T h is ap peal followed.

STANDARD OF R E VIEW We review an o rder denying an application for a writ of habeas corpus f or a n abuse o f discretion

. Ex parte Wheeler , 203 S.W.3d 317, 324 (Tex. Crim. App. 2006)

. “ A trial

2 Morales called eight witnesses who testified to her general character for truthfulness

.4

court abu ses its discretion when it acts without reference to any guiding rules or principles or when it a cts arbitrarily or unreasonably. ” Ex parte Ali , 3 68 S .W.3d 827 , 830 (Tex. App.

— Austin 2012, pet. ref’d)

. In a post

- conviction writ of habeas corpus, t he appli cant bears the burden of proving by a preponderance of the evidence that she is entitled to relief. Id. (citing Ex parte Richardson , 70 S.W.3d 86 5, 8 70 (Tex. Crim. App. 2 002) )

.

I n Article 11.072 habeas proceedings, such as this case, the tri al court is the sole finder of fact. E

x p arte Torres , 483 S.W.3d 35, 4 2 (Tex. Crim. App. 2016)

. I n our review, w e aff ord almost total deference to the trial court ’s fa ctua l findings that are su pported by the record , especially when those findings turn on evaluation of credibility and demeanor. Id. W e af fo rd the same amount of deference to the trial court ’s application of the law to the facts to the e xtent

r es olut ion of th e ultimate question tu rns on a n evaluation of credibility or demeanor. Ex parte Nugent , 593 S.W.3 d 416, 4 2 4 (Tex. App.

— Houston [1st Di st .] 2019, no pet.)

. If the facts are undisputed and the trial court ’ s ruling does not turn on the credib ility or demean or of witn esses,

we re view the trial court ’ s ruling de novo. See Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999) ; Ex parte Ali , 368 S.W.3d at 831

.
D ISCUSSIO N
M o rales asserts that her plea was inv ol untary because of her counsel ’ s ineffec tive assi stan ce . “ The test fo r determining the validity of a guilty plea is ‘ whether the plea represents a voluntary and intelligent choice among the alternative courses o f act ion open to the defendant. ’ ” State v. Guerrero , 400 S.W.3d 576, 588 (T ex. Crim . App. 20 13) ( quot ing North
Ca rolina v. Alford , 400 U.S. 25, 31 (1970) ). Whe re, as here, a defendant enters her plea on advice of counse l, the voluntariness of the p lea depend s on whether counsel ’ s advice “ was within5

the range of competence demand ed of at torneys i n crimina l cases. ” E x parte Ali , 368 S.W.3d at 833 ( citing McMann v. Richardson , 397 U.S. 759, 771 (1970) ).

The Strickland v. Washington test applies to cha llenges to pleas based on ineffective assistance o f counsel. See Hill v. Lockha rt , 474 U. S. 52, 58 (1985) ; Ex parte Ali , 3 68 S.W.3d at 833

. Under Stric kland , a n applicant must show (1 ) that her counsel ’ s
p erformance was deficient and (2) that the d eficiency prejudiced he r. Str ickland v. Washington , 466 U.S. 668, 687 (1984)

. The ap plica nt ha s the bur den to establish both pr on g s by a preponderance of the evidence. Ex parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim. App. 2011)

. “ Failure to make the required showing of e it her def icient performance or sufficient prejudice defeats the i neffective ness clai m.” St rickland , 466 U.S . at 700 ; see Ex parte Nugent , 593 S.W.3d at 424

.

To satisfy the first prong of Strickland , an applicant must show that her “ counsel's performanc e fell below an objective standard of reasonableness under pre vailin g professi onal

norm s, cons idering the facts of the case viewed from counsel ’ s perspective at the time of the representation. ” Ex parte Garza , 620 S.W.3d 801, 808

– 09 (Tex. Crim. App. 2021)

. In consid ering a deficient

- performance claim, we indulge a “ stron g presumpt ion ” that counse l ’ s conduct fe ll within the “ wide range of reasonable assistance ” and “ could be considered sound trial strategy. ” Id. at 827

. To rebut that presumption , “the r ec ord mu st af firmatively demonstrate” the meritorious nature of the c laim of de ficient p erforma nce. S ee Menefie ld

v. State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) ; Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). “ If trial counsel has not been affo rded the opportunity to explain the reasons for his cond uct, we wi ll not fi nd him to be deficient u nless the challenged conduct was6

‘ so outrageous that no competent attorney would have engaged in it. ’ ” Nava v. State , 415 S.W.3d 289, 308 (Tex. Crim. App. 2 013) (quoting Menefield , 363 S.W.3d at 593 ).

Morales arg ues that h er counse l ’ s adv ice rose to this sta ndard because he should have known that the emails related to a campaign are not public information

. See Tex. Gov’t Code § 552.002(a )(3) (providing that “ ‘ [p]u blic information ’ me ans information that is writte n, produce d, collec ted, as sembled, or main tained under a law or ordinance or in connection with the transaction of official business” by, as relevant here, “an individual officer or employee of a governmental body in the offi cer’s or employee’s official ca pacity and the info rmation pertains to off icial business of the governmental body ” ). Morales did not call her counsel to explain his reasons for advising her to plead no contest, and the record does not show that no competent attorney would have given the same advi ce. Even if we assume that Morales is c orrect that emails related to a political campaign are not public information

— an issue on which we express no opi nion

—her burden include d demonstrating that she only deleted ca mpaign related emails. In its findings, t he tria l court stated that Morales presented “no evidence ” regarding the content
of the deleted emails

. See Ex parte Martinez , 330 S.W.3d at 901 ( stating burden on applicant to demonstrate entitlement to relief ); Ex parte Ali , 368 S.W.3d at 83 0 ( same). M orales responds that her testimony provides sufficient evidence, but she ack nowledged on cross

- exami nation that she did not review all 30,000 emails that she deleted from her work computer. Without showi ng that sh e only deleted campaign

- relate d emails , she canno t rebut the presumption that her counsel ’ s advice to enter a plea of no contest was not conduct “ so outrageous that no competent attorney would have engaged in it. ” See Nava , 415 S.W.3d at 308 (citing Menef ield , 363 S.W.3d
at 593 ). On this recor d, we can not conclude that the trial court abused its discretion by7

concluding Morales failed to overcome the presumption that her counsel ’ s advice fell below the range of competence demanded of attorneys in crimi nal c ases. We overrule Morale s ’ s sole i ssue.

C O NCLU SION
We affirm the t rial court ’ s order.

___________________ _______________________ Edw ard Smi th , Justice Before Justices Go odwin, Kel ly, and S m ith Affirmed Filed: July 30, 2021