                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                            ____________________
                                NO. 09-18-00462-CR
                            ____________________

                    EX PARTE ARTHUR LYNN FAUST JR.

________________________________________________________________________

                      On Appeal from the 9th District Court
                          Montgomery County, Texas
                        Trial Cause No. 15-12-13314-CR
________________________________________________________________________

                           MEMORANDUM OPINION

      Arthur Lynn Faust Jr. appeals the denial of habeas corpus relief from a

judgment of conviction ordering community supervision for invasive visual

recording, a state jail felony offense alleged to have been committed on or about

November 17, 2015. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015); see

also Tex. Penal Code Ann. § 21.15(b)(1), (c) (West Supp. 2018). Faust contends the

trial court abused its discretion in denying habeas relief because his guilty plea was

involuntary. Additionally, he argues the trial court erred in refusing to hold a hearing


                                           1
to address Faust’s claim, brought for the first time in his motion for reconsideration,

that he would have withdrawn his guilty plea and gone to trial. We conclude the trial

court’s findings are supported by the evidence and the trial court did not abuse its

discretion by denying Faust’s motion to reconsider without conducting an

evidentiary hearing. Accordingly, we affirm the trial court’s order denying habeas

relief.

                                  Habeas Corpus

          Faust rejected a plea bargain offer of deferred adjudication community

supervision without jail time. He alleges this rejection was uninformed, and his

guilty plea without an agreement on punishment was involuntary because of his trial

counsel’s incorrect advice. Counsel had advised Faust that he was eligible for the

pre-trial diversion Veteran’s Court Program but failed to inform Faust of the

program’s eligibility requirements. Faust alleged that his counsel advised him that

the trial court would decide whether to allow him to enter the program but failed to

inform him that the State had to agree to his participation in the program. Faust

alleged that had his lawyer provided correct advice, “Faust would have asked him to

try to negotiate a plea to a misdemeanor; if he could not do so, Faust would have

accepted the offer of deferred adjudication probation without jail time and, when

eligible, moved to seal his record[.]” Faust’s habeas application did not allege that

                                          2
he would have withdrawn his guilty plea and insisted on going to trial if the trial

court had rejected the plea bargain. The affidavit Faust submitted with his

application is silent as to what he would have done if the State had withdrawn the

offer or the trial court rejected an agreement that did not provide for jail time as a

condition of community supervision.

      A reporter’s record of the trial court proceedings was submitted as an exhibit

to the habeas application. The records show that Faust pled guilty without the benefit

of a plea bargain agreement. The trial court accepted the open plea, recessed without

making a finding of guilt, and reconvened on a later date to hear evidence relevant

to sentencing. In the sentencing hearing, the complaining witness testified that she

caught Faust crouching behind her with his arm extended and holding his cellphone

with the screen facing up under her dress. Deputy Richard Jackson testified that he

obtained mall surveillance video that helped him identify Faust as the suspect. In an

interview, Faust admitted that he recorded video of the complaining witness on his

cell phone and that he had engaged in similar behavior between 10 and 100 other

times. Faust consented to a search of his cell phone. Exhibits containing the contents

of the phone dump and the surveillance video were admitted in the hearing.

      Faust testified that he suffers from post-traumatic stress disorder related to his

military service. He claimed he acted impulsively without any thought at all. Faust

                                          3
testified at length about his disorder and the counseling he received to treat his

condition. He explained that he has sole custody of his ten-year-old son. He stated

that he successfully completed deferred adjudication community supervision in the

past. Faust estimated that fifty times he had surreptitiously videoed skirt-wearing

women while shopping at retail locations in The Woodlands, and he admitted he

often had his son with him when he did it. He claimed the thrill was in obtaining the

video, and he would delete them immediately or would watch them once and delete

them. After the complaining witness confronted Faust, he sat in his car, deleted the

videos, and Googled “Up-Skirt crime in Texas[.]” Faust denied receiving any sexual

gratification from the videos. He resigned from the fire department after an internal

affairs investigator informed Faust there would be a formal investigation into his

conduct.

      The trial judge noted on the record that, in his opinion, a state jail sentence

might not address Faust’s underlying problems, and a term of confinement followed

by community supervision with sex offender treatment would be a more appropriate

sentence. The trial court sentenced Faust to two years of state jail confinement,

probated for five years, with 180 days of state jail confinement as a condition of

probation. The trial court denied Faust’s request for deferred adjudication of guilt.



                                          4
       In the habeas proceedings before the trial court, Faust’s trial counsel provided

an affidavit in which he admitted that he provided deficient advice by informing

Faust that the trial court had the ability to place him in the Veterans Court Program

without the State’s agreement. The State conceded deficient performance by trial

counsel but argued that Faust failed to prove prejudice. In response, Faust asked for

an evidentiary hearing so that Faust could develop a record that the custom and

practice throughout Texas is that courts accept plea bargain offers almost all the time

in cases involving non-violent offenses. The trial court considered the application,

the State’s answer, the contents of the Court’s file, and the affidavits and exhibits

submitted to the trial court in the habeas proceeding without holding a live hearing.

The trial court denied relief on findings which included a finding that had the trial

court been presented with a plea offer of deferred adjudication without jail time as a

condition, it would not have accepted the plea offer. The trial court denied Faust’s

motion to reconsider, in which Faust argued, “Had the court rejected the plea bargain

because it did not include jail time as a condition of probation, he would have pled

not guilty and gone to trial.” 1




       1
        The motion to reconsider references a supplemental affidavit that is not
included in the clerk’s record.
                                       5
                                       Appeal

      Faust argues that his rejection of a plea bargain offer of deferred adjudication

community supervision without jail as a condition was uninformed and his guilty

plea without an agreed recommendation was involuntary because his trial counsel

advised Faust that he was eligible for the pre-trial diversion Veteran’s Court Program

without informing Faust that the State had to agree for him to enter the program. To

establish prejudice in a claim of ineffective assistance of counsel in which a

defendant rejects a plea-bargain because of bad legal advice, “the applicant must

show a reasonable probability that: (1) he would have accepted the earlier offer if

counsel had not given ineffective assistance; (2) the prosecution would not have

withdrawn the offer; and (3) the trial court would not have refused to accept the plea

bargain.” Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). An

applicant for an article 11.072 writ of habeas corpus bears the burden of proving his

claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex.

Crim. App. 2016). Because the trial judge is the sole finder of fact, in the appeal we

afford almost total deference to a trial court’s factual findings, especially findings

based on credibility and demeanor, and conclusions of law when they are supported

by the record. Id. at 42. Here, the trial court found that had it been presented with a

plea offer of deferred adjudication without jail time as a condition, it would not have

                                          6
accepted the plea offer. Therefore, Faust failed to establish that the trial court would

not have refused to accept the plea bargain, as required by Argent. See 393 S.W.3d

at 784.

      Faust argues that he established the prejudice necessary to demonstrate that

his guilty plea was involuntary because he would have been entitled to withdraw his

guilty plea as a matter of law if the plea bargain offer had been presented to but

rejected by the trial court. See generally Tex. Code Crim. Proc. Ann. art. 26.13(a)(2)

(West Supp. 2018). However, his habeas application does not allege that he would

have withdrawn his guilty plea and gone to trial if the original plea bargain offer had

been presented to and rejected by the trial court. Further, the affidavit Faust attached

to the habeas application does not state that he would have withdrawn his guilty plea

and gone to trial. In the absence of allegations that he would have pleaded not guilty

and gone to trial, Faust’s allegations are insufficient regarding the showing of

prejudice required on a claim of an involuntary plea due to ineffective assistance of

counsel. See Hill v. Lockhart, 474 U.S. 52, 60 (1985).

      After the trial court denied the application, Faust alleged that he would have

withdrawn his plea and gone to trial, but we review the record as it existed before

the trial court at the time the trial court made its decision. Ex parte Hernandez, 398

S.W.3d 369, 377 n.2 (Tex. App.—Beaumont 2013, no pet.). When the trial court

                                           7
denied the habeas application, the trial court did not have evidence before it that

Faust would have withdrawn his guilty plea if a plea bargain offer had been rejected

by the trial court because it did not provide for jail time. Moreover, Faust claims in

his appeal that avoiding jail time was so important that he would have gone to trial

if the plea bargain had been presented to and rejected by the trial court, but given the

strength of the State’s case against him, it would have been irrational to insist on

going to trial and risk two years of incarceration to avoid a shorter period of

incarceration required as a condition of community supervision.

      In his appellate brief, Faust argues the trial court erred in refusing to conduct

a hearing to address Faust’s claim that he would have pled not guilty and gone to

trial after the trial court informed the parties that a plea bargain agreement without

jail as a condition would have been rejected. Article 11.072 allows but does not

require the habeas court to hold a hearing. See Tex. Code Crim. Proc. Ann. art.

11.072, § 6(b); see also Ex parte Aguilar, 501 S.W.3d 176, 178 (Tex. App.—

Houston [1st Dist.] 2016, no pet.) (“[A]rticle 11.072 does not require the trial court

to hold any hearing—let alone an evidentiary hearing—before rendering its

decision.”).

      Faust claims the affidavit he filed with his habeas application did not address

the subject of whether the trial court could have accepted or rejected the plea because

                                           8
he did not know that the trial court would have rejected the plea bargain until the

trial court signed the written findings. When Faust submitted his habeas application,

he knew that the finding was required for him to obtain relief and that it was possible

that the trial court would find that it would have rejected the plea bargain. See Argent,

393 S.W.3d at 784. Article 11.072 expressly allows the trial court to use its

recollection of the proceedings in determining whether the applicant is entitled to

relief. See Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b). Without a hearing, Faust

could refer the trial court to those parts of the proceedings that would support his

argument that the plea bargain would have been accepted by the trial court. 2 The fact

that the trial court declined to defer adjudication of guilt and assessed jail time as a

condition of community supervision supports the trial court’s habeas finding that a

plea bargain offer that did not include jail time would have been rejected, but that is

a function of the facts of the case, not an undeveloped record. We conclude that

Faust has not shown that the trial court abused its discretion by not holding a hearing.




      2
        For instance, Faust could argue the trial court would have been receptive to
a sentence that did not involve jail time if the State’s plea bargain offer had been
presented to the judge for approval as a plea bargain agreement because the pre-
sentencing information record would have included information, such as that
developed in his sentencing hearing, concerning Faust’s struggles with post-
traumatic stress disorder and his attempts to address his condition through a program
designed for veterans.
                                           9
      In view of the totality of the record, and deferring to the habeas court’s

findings of fact, we conclude that Faust has failed to demonstrate that, but for

counsel’s deficient performance, he would have accepted the plea bargain offer and

the trial court would have accepted the plea. Further, in view of the totality of the

record, and deferring to the habeas court’s findings of fact, we conclude that Faust

has failed to demonstrate that, but for counsel’s errors, Faust would have withdrawn

his plea and insisted on going to trial if the trial court rejected the plea bargain

agreement. Because Faust failed to adequately show that he was prejudiced due to

counsel’s erroneous advice, the trial court did not abuse its discretion by denying

habeas relief. We affirm the trial court’s order denying the appellant’s application

for a writ of habeas corpus.



      AFFIRMED.



                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on February 1, 2019
Opinion Delivered April 10, 2019
Do Not Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.


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