Opinion filed May 9, 2024

In The

Eleventh Court of Appeals __________

No. 11-22-00342-CR

__________

EX PARTE OLUSEGUN MICHAEL AFOLABI

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR54436-A

M E M O R A N D U M O P I N I O N

Appellant, Olusegun Michael Afolabi, appeals from the trial court’s order that 

denied him relief on his application for a writ of habeas corpus that he filed pursuant 

to Article 11.072 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 11.072 (West Supp. 2023). In two issues, Appellant contends that the trial 

court abused its discretion when it (1) did not find that the admitted mistakes by 

Appellant’s trial counsel amounted to errors that influenced Appellant’s decision to 

plead guilty, and (2) denied Appellant’s request for habeas relief without analyzing 
2

his ineffective-assistance-of-counsel claim in the “involuntary plea” context. We 

affirm.

I. Factual Background

Pursuant to a negotiated plea agreement, Appellant entered a plea of guilty to 

the offense of sexual assault, a second-degree felony. See TEX. PENAL CODE ANN.

§ 22.011(a)(1), (f) (West Supp. 2023). According to the terms of the plea agreement, 

in exchange for Appellant’s plea of guilty, Appellant would be placed on deferred 

adjudication community supervision for two years and assessed a fine of $2,500. 

Prior to the entry of his plea, Appellant waived his right to a record of his plea 

hearing. At the plea hearing, the trial court accepted Appellant’s plea of guilty, 

approved the plea agreement, and signed a judgment that placed Appellant on 

deferred adjudication community supervision consistent with the terms of the plea 

agreement. See CRIM. PROC. art. 42A.101 (West 2018).

Thereafter, Appellant filed a pro se motion for new trial in which he alleged 

that, prior to the entry of his plea, his trial counsel, Luis Chavez, did not inform him 

that, as a consequence of his plea of guilty, he would be required to register as a sex 

offender for the duration of his life. An amended motion for new trial and motion 

in arrest of judgment were filed, by appellate counsel on Appellant’s behalf, in which 

Appellant similarly asserted that Chavez did not advise him about the consequences 

of his plea of guilty, namely, that by pleading guilty to the charged offense Appellant 

would be required to register as a sex offender for life. Appellant further complained 

that Chavez did not explain to him the immigration consequences of his plea; 

although Appellant is a United States citizen, he claimed that he “hails from Nigeria”

and that the terms of his plea agreement potentially compromised his ability to ever 

return to or visit that country. 
3

The affidavits of Appellant and Chavez were attached to the amended motion 

for new trial. In his affidavit, Appellant stated that he was not properly informed by 

Chavez of the consequences of his guilty plea, specifically of the lifetime sex 

offender registration requirement and its significance to Appellant’s ability to travel 

to Nigeria. Chavez, in his affidavit, stated that he did not discuss the immigration 

consequences of the guilty plea with Appellant, and it was not necessary to do so, 

because Appellant is a United States citizen. Chavez further stated it was only after 

Appellant entered his guilty plea that he realized that, as a consequence of the 

statutory lifetime sex offender registration requirement, Appellant may not be able 

to return or be admitted to Nigeria. Chavez also stated that Appellant “would not 

have accepted the plea offer if there was no chance of [him] being able to return to 

Nigeria.” However, nowhere in his affidavit did Chavez state that he failed to advise 

Appellant of the lifetime sex offender registration requirement. 

We unfortunately do not have the benefit of a record of Appellant’s plea 

hearing. However, the plea documents and the trial court’s judgment are included 

in the record before us. The written plea agreement executed by Appellant does not 

mention that, as a consequence of his plea of guilty, he would be required to register 

as a sex offender for the remainder of his life. Although the trial court’s judgment 

recites certain admonishments, the judgment does not recite an admonishment that, 

as a consequence of his guilty plea, Appellant would be subject to a lifetime sex 

offender registration requirement. See CRIM. PROC. art. 26.13(a)(5).

The trial court held a hearing on Appellant’s amended motion for new trial 

and admitted the affidavits of Appellant and Chavez. Upon the hearing’s conclusion, 

the trial court denied the motion. 
4

After this, and represented by new counsel, Appellant filed an Article 11.072 

application for a writ of habeas corpus. See CRIM. PROC. art. 11.072. In his 

application, Appellant raised two grounds for relief: (1) Chavez provided ineffective 

assistance of counsel when he misinformed Appellant of several aspects of the plea 

agreement, which resulted in Appellant entering an involuntary plea of guilty, and 

(2) Appellant’s appellate counsel who prepared his amended motion for new trial 

provided ineffective assistance of counsel when he failed to assert in that motion that 

the trial court unlawfully ordered Appellant to be placed on two years’ deferred 

adjudication community supervision in violation of Article 42A.103(a) of the Code 

of Criminal Procedure. See CRIM. PROC. art. 42A.103(a). Appellant attached an 

appendix to his application, which included, among other documents, his amended 

motion for new trial and its accompanying affidavits. 

In his application, Appellant described the incident for which he was charged 

with sexual assault. He also explained that he was born and raised in Nigeria and 

won a visa lottery in 2013 through which he became a United States citizen. He 

stated that he has a heavy Nigerian accent and frequently has difficulty 

understanding and being understood by others. He further stated that after he entered 

his plea of guilty, he discovered that he was required to attend a sex offender therapy 

group—he soon was transferred from the group at the recommendation of the 

licensed counselor who supervised the group because his Nigerian accent posed, 

according to a letter from the counselor that was included in Appellant’s application, 

an “insurmountable barrier to essential communication impeding the group process.”

In support of his claim that his plea was involuntary due to ineffective 

assistance by Chavez, Appellant argued that:

• In a telephonic conversation between Chavez, Appellant, and Appellant’s 

friend, Iraida Roach, Roach directly asked Chavez whether Appellant 
5

would be required to register as a sex offender if he pled guilty, and that 

Chavez told them Appellant would not be charged as a sex offender, and 

that he could even have the offense expunged after he served his term of 

community supervision. 

• A text message sent to Appellant by Chavez communicated the State’s plea 

offer of two years’ deferred adjudication community supervision and a fine 

of $2,500 but did not mention the lifetime sex offender registration 

requirement. 

• Neither Appellant’s plea documents nor the trial court’s written 

admonishments mentioned the lifetime sex offender registration 

requirement, and the trial court’s oral admonishments are not available 

because Appellant waived his right to a record of his plea hearing. 

• Appellant was ordered to be placed on two years’ deferred adjudication 

community supervision, but Article 42A.103 provides a minimum term of

five years’ community supervision for a defendant who is charged with 

and pleads guilty to the offense of sexual assault. 

• Had he been presented with an offer of five years’ deferred adjudication 

community supervision, a fine, and an allotment of community service 

hours, and had he been advised that a plea of guilty alone would require 

that he register as a sex offender for the rest of his life, Appellant would 

have rejected the plea offer and insisted on proceeding to trial. 

To address Appellant’s application, the trial court held evidentiary hearings on 

August 5—to accommodate Roach—and October 7, 2022. 

At the August 5 hearing, Roach testified that she has known Appellant for 

sixteen years and that they met at church. Prior to the entry of his plea, and at 

Appellant’s request, Roach joined a phone call between Appellant and Chavez to 

assist Appellant with the “language barrier” and to help him “understand 

everything.” Roach testified that she directly asked Chavez whether Appellant 

would be required to register as a sex offender and that Chavez told them he would 

not. She further testified that Chavez also told them that Appellant would be able to 
6

have the offense expunged from his record. In her affidavit that was attached to 

Appellant’s habeas application, Roach stated that Appellant has problems 

understanding and being understood by others because of his Nigerian accent. 

At the conclusion of the August 5 hearing, the trial court requested that the 

State submit a brief on the issue of the duration of Appellant’s deferred adjudication 

community supervision that had been ordered. The State did so and attached an 

affidavit by Chavez to their brief. In this affidavit, Chavez stated that:

• He has practiced criminal law since 1990 and has handled hundreds of 

criminal cases, including acting as lead counsel in sixty-three criminal jury 

trials and as lead counsel in fifteen cases involving allegations that would 

require the defendant, if convicted or placed on deferred adjudication

community supervision, to register as a sex offender.

• He believed that, on at least two occasions prior to Appellant’s plea, he 

advised Appellant that he would be required to register as a sex offender if 

he was convicted or placed on deferred adjudication community 

supervision for the charged offense in the underlying case.

• Although he did not remember the exact date or setting in which he advised 

Appellant of this information, he recalled discussing the circumstances

with Appellant in the context of advising him (1) that the consequences of 

failing to maintain and update his sex offender registration could result in 

him being charged with a third-degree felony offense, and (2) of the 

implications that registering as a sex offender could have on Appellant’s 

ability to return to work as a driver for Uber.

• It was his opinion that Appellant understood he would be required to 

register as a sex offender if he entered a plea of guilty.

• He advised Appellant that if he successfully completed his term of 

community supervision and he stayed out of trouble for an additional five 

years, he would be eligible to petition the trial court for a nondisclosure 

order.

• He did not recall ever discussing a possible expungement of the case with 

Appellant.
7

• Appellant indicated that he desired to proceed to trial, but the State reduced 

its plea offer from ten years’ imprisonment to two years’ deferred 

adjudication community supervision and Appellant decided to accept that 

offer.

After the State submitted its brief, the trial court signed an order in which it denied 

Appellant’s habeas application to the extent that Appellant sought relief on the basis 

that the two-year period of deferred adjudication community supervision ordered by 

the trial court was illegal or void.1

 The other bases for relief remained pending for 

consideration at the second evidentiary hearing. 

At the second evidentiary hearing on Appellant’s habeas application, 

Appellant presented several witnesses, including Chavez, Andrea Seabrook 

(Appellant’s probation officer), and Gbamila Omotye (his pastor); Appellant also 

testified. 

Chavez testified that he advised Appellant of the lifetime sex offender 

registration requirement on at least two occasions prior to Appellant’s entry of his 

guilty plea—the same occasions to which he referred in his affidavit for the State. 

He detailed those conversations on cross-examination, and explained that Appellant 

had asked whether, as a driver for Uber, he could switch from driving customers to 

their desired locations to only picking-up and delivering food and other goods. 

Chavez also explained that he believes the consequences of violating some of the 

conditions of sex offender registration—potentially being charged with a felony for 

“something as simple as not updating your phone number”—to be unfair, and his 

opinion of that aspect of the registration requirement is a reason he recalls discussing

this requirement with Appellant. Chavez further testified that although he did not 

1

Because Appellant was never sentenced to a term of imprisonment for the charged offense, he is 

not, and cannot, assert on appeal that he received an illegal or void sentence.
8

discuss the issue of expungement with Appellant, he did advise Appellant that he 

could obtain an order of nondisclosure if he was not convicted of the charged 

offense, and that his advice on this point was incorrect. 

Seabrook interviewed Appellant as part of the presentence investigation

report. Seabrook testified that she and Appellant struggled to communicate because 

of his accent. After Appellant’s plea, Seabrook met with him in-person to “intake”

him into the community supervision program; however, she found it difficult to 

communicate with him in person, although she noted that they were both wearing 

facemasks as precautions against COVID-19 at the time. At the intake meeting, they 

completed Appellant’s initial sex offender registration, and Seabrook noted that 

Appellant was “irate” and “very animated” because of the sex offender registration 

terms and requirements. Seabrook testified that Appellant expressed he did not 

know that, as a condition of the plea agreement, lifetime sex offender registration 

was required. She further testified that it was unusual, in her fifteen years’

experience as a probation officer, for a defendant such as Appellant to be unaware 

that he was required to register as a sex offender based on these circumstances. 

Omotye testified that in the phone call in which he participated between 

Chavez and Appellant, sex offender registration was not discussed. Chavez and 

Appellant discussed the State’s two-year community supervision offer, and Omotye

advised Appellant that he should accept the offer. Omotye testified that Appellant 

was shocked and alarmed by the sex offender registration requirement. Omotye

further testified that Appellant speaks “pigeon English,” which he described as 

“broken English” that has a limited vocabulary, and that Appellant had difficulty 

comprehending people when they spoke quickly. Omotye later helped Appellant to 
9

obtain employment as a cashier at Wal-Mart, and he testified that Appellant was able 

to “make it through his daily life” with the language skills he had. 

With the assistance of an interpreter, Appellant testified that his native 

language is a Yoruba Ijebu dialect and that he moved to the United States in 2013. 

He met with Chavez twice before his plea hearing and each time he asked a friend—

once Roach, and once Omotye—to attend the meeting to assist with the language 

barrier. Appellant testified that Chavez sent him a text message that communicated 

a plea offer from the State; Appellant described the offer as: “two years, that’s if I 

pass a process for three years, then they will—then I will have my freedom.” 

Appellant denied that Chavez ever told him that he would be subject to a 

lifetime sex offender registration requirement as a consequence of pleading guilty. 

He also denied that he was admonished by the trial court concerning the sex offender 

registration requirement or that this requirement was otherwise discussed at his plea 

hearing. Appellant further claimed that he did not understand “anything” about the 

plea documents he signed and that he thought “everything was just in [his] favor; 

that after two years, [he] would be free.” Appellant testified that he would not have 

accepted the State’s plea offer and entered a plea of guilty if he had been offered 

“five years’ deferred adjudication plus sex offender registration for life.” In fact, he 

stated that he would not have accepted any offer that would have required him to 

register as a sex offender, and he disclaimed any knowledge about a sex offender 

registration requirement until after his plea hearing. 

After the October 7 hearing, Appellant filed an amended habeas application 

in which he added two additional grounds for relief: that (1) his right to due process 

was violated because an interpreter was not appointed and did not attend his plea 

hearing, and (2) Chavez rendered ineffective assistance of counsel when he failed to
10

request that an interpreter be appointed to attend and assist Appellant at the plea 

hearing.2

 

The trial court denied Appellant’s amended application and signed findings 

of fact and conclusions of law. The trial court found, among other things, that Roach 

was not a credible witness and noted that Roach did not explain how she could have

“known [Appellant] for fourteen (14) or sixteen (16) years” when he had only moved 

to the United States nine years prior to the evidentiary hearings. The trial court also 

noted that Roach appeared to be attempting to “help” Appellant rather than being 

truthful. 

The trial court found that Chavez was a credible witness, as demonstrated by, 

among other things, his admission that he mistakenly advised Appellant regarding 

the nondisclosure of his offense and the minimum period of community supervision

that he could receive. The trial court further found that, prior to Appellant’s plea, 

Chavez twice informed Appellant that he would be subject to a lifetime registration 

requirement as a sex offender if he pled guilty to the charged offense. Chavez 

testified that Appellant was not happy about the registration requirement, and his 

unhappiness demonstrated to Chavez that Appellant understood the circumstances

and consequences of the registration requirement. 

The trial court found that Seabrook was a credible witness. The trial court 

noted that, in the presentence report prepared by Seabrook after she interviewed

Appellant, Appellant identified English as his primary language. Also, at their inperson meeting after Appellant’s plea, Seabrook described Appellant as “irate” when 

they discussed his sex offender registration requirement. 

2

We note that Appellant is not asserting the same complaints—that relate to the failure to have an 

interpreter appointed to assist him—on appeal.
11

The trial court found that Appellant was not a credible witness. The trial court 

found that although Appellant requested and received the assistance of an interpreter 

at the habeas hearing, he demonstrated that he understood English given that some 

of the questions presented at the hearing, and his responses to those questions, were 

in English. The trial court described Appellant’s demeanor in those moments: “He 

looked at that time as though he was caught out and then looked down.” The trial 

court found that Appellant testified that the sex offender registration requirement 

was not discussed at his plea hearing and, because there was no interpreter present 

at the plea hearing, this further demonstrated that he understood what was discussed

at the hearing. The trial court further found that Appellant filed two affidavits in 

connection with his plea, which appear to have been executed without the assistance 

of translators, as the affidavits were not accompanied by independent affidavits from

a translator. Moreover, the trial court found that Appellant never testified that he 

told Chavez that he did not understand what Chavez was discussing with or 

explaining to him, including the terms of the plea agreement. 

The trial court found Omotye to be a credible witness. The trial court found 

that it was not surprised that the registration requirement was not discussed during 

their phone call with Chavez because the purpose of the call was to discuss 

community supervision and there was no evidence that either Appellant or Omotye 

mentioned the registration requirement during that call. The trial court further found 

that because Appellant could function as a cashier at Wal-Mart this indicated, at a 

minimum, his functional comprehension of the English language.

The trial court also referred to the body-camera footage from Appellant’s 

arrest, which showed, the trial court found, that Appellant and the arresting officer 

were able to understand and effectively communicate with each other in English. 
12

The trial court similarly found that the video footage from the police station showed

that Appellant and the officer were also able to understand and communicate with 

each other in English while there. 

II. Standard of Review

We review a ruling on an application for writ of habeas corpus for an abuse 

of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see Ex 

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

habeas record in the light most favorable to the trial court’s ruling. Kniatt, 206 

S.W.3d at 664.

To prevail on a post-conviction writ of habeas corpus, the applicant bears the 

burden of proving, by a preponderance of the evidence, the facts that would entitle 

him to relief. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016); Ex parte 

Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In habeas corpus 

proceedings, “[v]irtually every fact finding involves a credibility determination” and 

“the fact finder is the exclusive judge of the credibility of witnesses.” Ex parte 

Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996). 

“Article 11.072 is ‘the exclusive means by which the district courts may 

exercise their original habeas jurisdiction under Article V, Section 8, of the Texas 

Constitution’ in cases involving an individual who is serving a term of community 

supervision.” Torres, 483 S.W.3d at 42 (quoting Ex parte Villanueva, 252 S.W.3d 

391, 397 (Tex. Crim. App. 2008)). The trial court is the sole finder of fact in an 

Article 11.072 habeas proceeding. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. 

Crim. App. 2013). In this setting, we afford almost total deference to a trial court’s 

factual findings when they are supported by the record, especially when those 

findings are based upon the trial court’s credibility and demeanor assessments. Id.
13

(applying the standard from Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 

1997)); see Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011) (same). 

In its fact-finding role, the trial court may accept or reject all, part, or none of any 

witness’s testimony. See Guerrero, 400 S.W.3d at 583. We will uphold the trial 

court’s ruling and judgment as long as it is correct on any theory of law that is 

applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001); 

see Diamond v. State, 613 S.W.3d 536, 544–45 (Tex. Crim. App. 2020); Ex parte 

Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017).

III. Applicable Law

The writ of habeas corpus is an extraordinary remedy to be used when one’s 

liberty is restrained. CRIM. PROC. art. 11.01 (West 2015); Ex parte Smith, 444 

S.W.3d 661, 666 (Tex. Crim. App. 2014). Article 11.072 establishes the procedures 

that apply for a writ of habeas corpus in a criminal case in which the applicant was 

originally placed on community supervision. CRIM. PROC. art. 11.072, § 1. An 

applicant seeking habeas relief under Article 11.072 has the burden to establish by a 

preponderance of the evidence that the facts entitle him to relief. Richardson, 70 

S.W.3d at 870. Additionally, there is a presumption of the regularity of the trial 

court’s judgment and the underlying proceedings absent a showing to the contrary. 

Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Brown v. State, 917 

S.W.2d 387, 390 (Tex. App.—Fort Worth 1996, pet. ref’d).

To demonstrate that he is entitled to habeas relief under Article 11.072 on the 

basis of ineffective assistance of counsel, an applicant must demonstrate that 

(1) counsel’s performance was deficient, in that it fell below an objective standard 

of reasonableness, and (2) the applicant was prejudiced as a result of counsel’s 

errors, in that, but for those errors, there is a reasonable probability that the outcome 
14

of his trial would have been different. Torres, 483 S.W.3d at 43 (citing Strickland v. 

Washington, 466 U.S. 668, 687, 693 (1984)); see Ex parte Lane, 670 S.W.3d 662, 

671 (Tex. Crim. App. 2023). In the context of a collateral challenge to the entry of 

a plea of guilty, the focus of the prejudice inquiry is on “whether counsel’s 

constitutionally ineffective performance affected the outcome of the plea process,” 

and whether a defendant has shown that “but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” Torres, 483 S.W.3d at 43

(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 

An attorney is deficient if his performance falls below an objective standard 

of reasonableness under the prevailing professional norms, considering the facts of 

the case when viewed from counsel’s perspective at the time of representation. 

Strickland, 466 U.S. at 687–88. In undertaking this analysis, we must take every 

effort to “eliminate the distorting effects of hindsight.” Id. at 689. “It is fundamental 

that an attorney must have a firm command of the facts of the case as well as the law 

before he can render reasonably effective assistance of counsel.” Ex parte Lilly, 656 

S.W.2d 490, 493 (Tex. Crim. App. 1983). Thus, counsel is charged with making an 

independent legal and factual investigation into the case. Strickland, 466 U.S. at 

691; Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). Under 

Strickland, we must consider whether counsel conducted reasonable investigations 

or made a reasonable decision not to investigate. Lane, 670 S.W.3d at 671 (citing

Strickland, 466 U.S. at 691).

An attorney’s deficient performance prejudices a defendant if “counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.” Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting 

Strickland, 466 U.S. at 687). To satisfy this prong, the “defendant must show that 
15

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. (quoting Strickland, 466

U.S. at 694). The failure to succeed on either Strickland prong is fatal to the claim 

of ineffectiveness. Id. 

A guilty plea is not knowing or voluntary if it was made as a result of 

ineffective assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 688–89 

(Tex. Crim. App. 2012) (citing Hill, 474 U.S. at 56); see Ex parte Burns, 601 S.W.2d 

370, 372 (Tex. Crim. App. 1980). Thus, a defendant’s decision to plead guilty, when 

based upon the erroneous advice of counsel, is not done voluntarily and knowingly. 

See Moussazadeh, 361 S.W.3d at 689 (citing Ex parte Battle, 817 S.W.2d 81, 83 

(Tex. Crim. App. 1991)).

IV. Analysis

A. Nondisclosure and Plea Offer Terms

In his first issue, Appellant complains that “the trial court abused its discretion 

where it did not find that [Appellant’s] [t]rial [c]ounsel’s admitted mistakes 

amounted to errors impacting [Appellant’s] decision to plead guilty.” Simply put, 

Appellant challenges the trial court’s denial of his ineffective-assistance-of-counsel 

claim. In this regard, Appellant relies primarily on two arguments in support of this 

issue, namely that Chavez (1) stated in his affidavit and testified at the habeas 

hearings that he erroneously told Appellant he could “non-disclose” the offense, and 

(2) testified that he failed to consider that the State’s offer of two years’ deferred 

adjudication community supervision for the charged offense was not permitted by 

the controlling statute. 

Regarding Appellant’s first argument, Chavez admitted that he advised 

Appellant that he could obtain an order of nondisclosure for the charged offense, and 
16

that his advice on this point was incorrect.

3

 The trial court appears to have found 

that Chavez’s error fell below an objective standard of reasonableness under the 

prevailing professional norms, while the State’s brief addresses only the Strickland

prejudice prong.

4

 See Strickland, 466 U.S. at 687–88. However, the trial court 

concluded that “[t]here is no evidence that [the] admitted mistake caused [Appellant]

any harm.” This is because, as the trial court found, Appellant never mentioned or 

testified at the habeas hearings regarding the remedies of expunction or 

nondisclosure. In particular, Appellant never testified that any statement he claims 

that Chavez made concerning expunction or nondisclosure had any effect on 

Appellant’s decision to accept or reject the State’s plea offer. 

To show that an attorney’s deficient performance prejudiced him, the 

“defendant must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Perez, 310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 694). Appellant asserts

that Chavez’s mistaken advice regarding Appellant obtaining a nondisclosure order 

establishes two things: (1) that Chavez presented Appellant with a better plea offer

than the law permits—one that contemplated a potential future nondisclosure order 

when Appellant was in fact not eligible for such an order, and (2) that Chavez’s 

mistake on this point also supports Appellant’s contention that Chavez did not advise

3

A person may not be granted an order of nondisclosure of his criminal history record information 

if the person has been previously placed on deferred adjudication community supervision for an offense 

that requires the person to register as a sex offender pursuant to Chapter 62 of the Code of Criminal 

Procedure. TEX. GOV’T CODE ANN. § 411.074(b)(1)(A) (West 2019). Sexual assault is one such offense. 

See CRIM. PROC. art. 62.051(a); art. 62.101(a)(1) (West Supp. 2023).

4

In assessing competence, the Court of Criminal Appeals has held counsel accountable for 

knowledge, or the ability to attain knowledge, of relevant legal matters that are neither novel nor unsettled. 

See, e.g., Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999) (citing Ex parte Welch, 981 S.W.2d 

183 (Tex. Crim. App. 1998)). The non-eligibility of Appellant’s offense was readily ascertainable. See

CRIM. PROC. arts. 62.001(5)(A), (6)(A); 62.051(a); 62.101(a)(1).
17

him he would be required to register as a sex offender for life as a consequence of 

entering a plea of guilty to the charged offense. 

With respect to whether the State presented to Chavez a better plea offer than 

the law permits, and whether this circumstance somehow affected Appellant’s 

decision to plead guilty, Appellant testified at the writ hearing, and he never 

mentioned that this mistaken advice influenced or contributed to his decision to 

plead guilty. Nor did he mention any such connection in either of his affidavits that 

were attached to his amended motion for new trial and his writ application. Rather, 

Appellant’s focus, as demonstrated by his testimony and the substance of his 

affidavits, was on Chavez’s alleged failure to advise him that he would be required 

to register as a sex offender for the rest of his life. Accordingly, we conclude that 

the record does not support Appellant’s assertion that Chavez’s mistake induced him 

to accept the State’s plea offer because it presented a better deal than the law permits.

Appellant asserts that Chavez’s mistake concerning Appellant’s eligibility to 

obtain a nondisclosure order supports an inference that, contrary to Chavez’s 

testimony, Chavez mistakenly failed to inform Appellant about the sex offender 

registration requirement prior to the entry of his plea of guilty. However, this 

argument invites us to second-guess the trial court’s credibility and demeanor 

determinations, to which we afford “almost total deference.” Guerrero, 400 S.W.3d 

at 583. As the factfinder, the trial court was free to believe or disbelieve all, part, or 

none of any witnesses’ testimony, including that of Chavez, Roach, and Appellant. 

Therefore, because the record supports the trial court’s credibility and demeanor 

determinations regarding Chavez’s testimony that he did inform Appellant of the sex 

offender registration requirement, we decline the invitation to re-examine or 

“second-guess” these determinations. Consequently, we agree with the trial court’s 
18

ultimate conclusion that no evidence supports Appellant’s contention that, but for 

Chavez’s mistaken advice regarding nondisclosure, Appellant would have rejected

the State’s plea offer and proceeded to trial.

In his second argument in support of his first issue, Appellant complains that 

Chavez admitted that he did not consider that the State’s plea offer of two years’ 

deferred adjudication community supervision was not permitted for the charged 

offense. Because the two-year period offered by the State was less than the 

minimum period of community supervision required by law for Appellant’s charged 

offense, Appellant argues that Chavez’s presentment of the State’s two-year plea 

offer induced Appellant to accept the plea offer because it presented a better deal 

than the law permits. See CRIM. PROC. art. 42A. 103(a).

The trial court made several key findings, as noted below, on this point: 

• Chavez testified that the State’s initial plea offer was for Appellant to serve 

prison time, but the offer was reduced to seven years’ deferred 

adjudication, which Appellant was willing to accept; subsequently Chavez 

negotiated the plea offer to five years’ deferred adjudication, which 

Appellant was also willing to accept, and finally the State offered two 

years’ deferred adjudication, which Appellant did accept. 

• Chavez acknowledged that the law requires a minimum of five years’ 

deferred adjudication if a defendant pleads guilty to sexual assault. Neither 

the prosecutor nor the trial court realized this mistake. 

• The prosecutor who negotiated the plea deal was an experienced 

prosecutor of sex crimes. 

• Appellant testified that he would not have accepted a five-year period 

accompanied with a sex offender registration requirement nor, in fact, 

would he have accepted any plea bargain that included a lifetime sex 

offender registration requirement. 

• Appellant’s complaint that his community supervision period is less than 

the minimum required by law is correct, but he suffered no harm as a result 
19

of the error. In fact, he received a term of community supervision that was 

three years less than the minimum period required by law.5

 

• Appellant was willing to accept deferred adjudication community 

supervision plea offers for five years or even seven years.

Appellant contends that these findings are not supported by the record and should 

be disregarded despite the great deference we afford to the trial court’s credibility 

and demeanor determinations. But, on the question of whether—based on his 

knowledge of Appellant—Chavez believed that Appellant would have accepted the 

State’s plea offer if its terms had been for a five-year period of deferred adjudication 

community supervision and a lifetime sex offender registration requirement, Chavez 

testified “[I]t was my impression at the time that, yes, he was even going to accept 

the seven year offer, but that [he] was wanting or preferring to have it be a lower 

term.” Ultimately, the question of whether Appellant would have accepted a longer 

period of community supervision, if offered, along with the registration requirement, 

is one of credibility for the trial court to determine. The record shows that Appellant 

testified that he would not have accepted such an offer, but it also contains contrary 

testimony from Chavez. Because the record offers some support for its credibility 

and demeanor determinations, we defer to the trial court’s findings on this point.

We have reviewed the habeas record in the light most favorable to the trial 

court’s rulings. Each of the trial court’s findings and conclusions regarding 

5

We recognize that we must determine in the matter before us whether the ineffective-assistanceof-counsel arguments asserted by Appellant are sustainable. For the reasons discussed in this opinion, we 

conclude that they are not. Nevertheless, we note that other bases, independent of our Strickland analysis,

would preclude Appellant’s ineffective-assistance claims. For instance, because Appellant received the 

benefit of a more lenient punishment than the law permits for the charged offense, and based on the 

circumstances presented here, he is estopped from collaterally challenging the trial court’s judgment that 

ordered the term of deferred adjudication community supervision of which he now complains. See Deen v. 

State, 509 S.W.3d 345, 348–51 (Tex. Crim. App. 2017); Murray v. State, 302 S.W.3d 874, 882 (Tex. Crim. 

App. 2009); Rhodes v. State, 240 S.W.3d 882, 892 (Tex. Crim. App. 2007).
20

Chavez’s mistakes are supported by the record and in accordance with the applicable 

law and standards. Therefore, we conclude that the trial court did not abuse its 

discretion when it denied Appellant’s request for habeas relief. Accordingly, we

overrule Appellant’s first issue.

B. Voluntariness of Plea

In his second issue, Appellant argues that the trial court abused its discretion 

when it denied Appellant’s request for habeas relief without analyzing Appellant’s 

ineffective-assistance-of-counsel claim in the context of an “involuntary plea.” 

Appellant complains that “[t]he trial court did not explicitly conclude that, had 

Applicant been offered the plea permitted by law, he would not have pled guilty.” 

Citing to Padilla v. Kentucky, Appellant asserts that “[a] habeas petitioner must 

convince the [trial] court that a decision to reject the plea bargain would have been 

rational under the circumstances.” 559 U.S. 356, 372 (2010). The State responds 

that Appellant is not entitled to habeas relief on this point because the trial court did 

properly analyze Appellant’s ineffective-assistance-of-counsel claim in the context 

of (1) each Strickland prong, and (2) a collateral challenge to a guilty plea. 

Appellant asserts that the trial court’s findings of fact supporting its 

determination that Chavez did advise him of the lifetime sex offender registration 

requirement prior to the entry of Appellant’s guilty plea are erroneous and 

unfounded in light of Appellant’s interactions with Seabrook (whom the trial court 

found to be credible), his filing of a motion for new trial in which he asserted that he 

was unaware of the registration requirement, the filing of his habeas application, and 

finally his pursuit of this appeal. 
21

Building on this assertion, Appellant lists the following conclusions made by 

the trial court which, he contends, do not comport with a proper Strickland analysis 

in this context:

• Chavez did inform [Appellant] that [Appellant] could have an order 

of nondisclosure entered regarding his sexual-assault conviction. 

There is no evidence that [this] admitted mistake caused [Appellant]

any harm. 

• [Appellant] knew that he would be required to register as a sex 

offender before he accepted the State’s plea offer. 

• Because Chavez had previously informed [Appellant] of the lifetime 

sex offender registration requirements, no harm can have arisen 

from Chavez sending an assistant to review the plea paperwork with 

[Appellant]. [Appellant] certainly has not established any harm 

arose from that meeting. 

• [Appellant] is correct in that he was ordered to two years’ deferred 

adjudication community supervision in violation of Texas law, but 

he suffered no harm as a result of the error. In fact, he received three 

fewer years of supervision than the law requires. 

According to Appellant, only the following conclusion by the trial court comports

with a proper Strickland analysis:

• [Appellant] was willing to accept an offer of seven years’ deferred 

adjudication. He was [also] willing to accept an offer of five years’ 

deferred adjudication. His lawyer was able to obtain a lesser period. 

No harm ensued. 

But, Appellant asserts, this conclusion is not supported by the record because Chavez 

testified that although Appellant considered the State’s seven-year plea offer, he was 

not pleased with the duration of the community supervision term; it was too long, 

and he wanted a shorter term of supervision. He further asserts that “[h]e rejected 

the seven- and five-year plea offers first extended by the State; otherwise, there 

would have never been a two-year offer.” We have already addressed this same 
22

argument above. As we have said, the trial court’s findings and conclusions on this 

point hinged on its credibility and demeanor determinations, which are supported by 

the record and which we will not disturb.

Appellant argues that he would not have pled guilty had he been presented 

with an offer of a five-year deferred adjudication community supervision period that 

included a lifetime sex offender registration requirement, and that it would not have 

been reasonable for him to do so because sex offender registration has such a 

significant impact on an individual’s life. However, as we have already discussed, 

the trial court’s findings do not support Appellant’s contention.

Irrespective of Appellant’s assertion—that Chavez did not inform him that, 

by pleading guilty to the charged offense, he would be required to register as a sex 

offender for life—we note that Appellant does not complain on appeal that the trial 

court, before it accepted Appellant’s plea, failed to admonish him on this point. 

Indeed, prior to accepting a plea of guilty when the defendant is charged with a 

sexual offense, trial courts must admonish the defendant that a plea of guilty alone—

even if a finding of guilt is deferred—requires that the defendant comply with the 

Chapter 62 sex offender registration requirements. See CRIM. PROC.

arts. 26.13(a)(5), 62.001, et seq. The sex offender registration requirements also 

apply in this context when the defendant’s plea of guilty results in the defendant 

being placed on deferred adjudication community supervision. See CRIM. PROC.

arts. 62.001(5), 62.051(a). However, absent a showing of harm—which is not 

present in this case—the failure to admonish a defendant on this point does not 

invalidate the defendant’s plea of guilty or render the plea involuntary. See 

Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006); Mitschke v. State, 

129 S.W.3d 130, 136 (Tex. Crim. App. 2004). Moreover, a trial court’s failure to 
23

comply with the Article 26.13(a)(5) sex offender registration requirement 

admonishment does not provide a basis for the defendant to set aside his plea of 

guilty. See CRIM. PROC. art. 26.13(h); see also Abrego v. State, 611 S.W.3d 139, 

143 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (collecting cases).6 

In its conclusions of law, the trial court cited the following law and standard 

for an ineffective-assistance-of-counsel claim in the context of an involuntary plea:

88. “When a defendant enters his plea [of guilty] upon the advice of 

counsel and subsequently challenges the voluntariness of that plea 

based on [a claim of] ineffective assistance of counsel, the voluntariness 

of such 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.” [Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. 

App. 1997)]. “The record must affirmatively demonstrate that the 

claim has merit.” [Ex parte Salim, 595 S.W.3d 844, 856 (Tex. App.—

Fort Worth 2020, no pet.)].

This is the correct and applicable standard. See Lane, 670 S.W.3d at 671 (citing 

Strickland, 466 U.S. at 687, 690); Torres, 483 S.W.3d at 43, 47. Here, the trial 

court’s findings of fact and conclusions of law amply demonstrate that it conducted 

the appropriate analysis under the appropriate standard for Appellant’s habeas

application and the issues raised therein.

We have reviewed the record in accordance with the applicable standard of 

review and conclude that the trial court did not abuse its discretion when it denied 

6

In this case, the trial court found that it is the court’s practice to admonish defendants whose pleas 

of guilty will subject them to the lifetime sex offender registration requirements. However, and because 

the record of Appellant’s plea hearing was waived, the trial court could not specifically recall whether it 

did admonish Appellant about this requirement during Appellant’s plea hearing. Despite this, for purposes 

of our review, and to be sure, we prefer that a record be made whenever a defendant is entering a plea of 

guilty to a felony offense. 
24

Appellant’s request for habeas relief. Accordingly, we overrule Appellant’s second 

issue.

V. This Court’s Ruling

We affirm the order of the trial court. 

W. STACY TROTTER

JUSTICE

May 9, 2024

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.