                                       In The

                                 Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-19-00016-CR
                               __________________

                  EX PARTE MICAH THOMPSON
__________________________________________________________________

                On Appeal from the 260th District Court
                       Orange County, Texas
                     Trial Cause No. D170375-R
__________________________________________________________________

                          MEMORANDUM OPINION

      Appellant Micah Thompson (Appellant or Thompson) appeals the denial of

his post-conviction application for writ of habeas corpus, in which he alleged he was

denied the effective assistance of counsel and requested that he be allowed to file an

out-of-time appeal. We affirm.

                                 Factual Background

      On December 10, 2014, a jury found Thompson, a juvenile at the time, beyond

a reasonable doubt to have engaged in delinquent conduct in that he committed four

counts of aggravated sexual assault of a child. The jury assessed punishment at


                                          1
confinement for a term of ten years but elected to grant Thompson probation. On

December 11, 2014, the juvenile court placed Thompson on probation for seven

years with no less than twelve months of Intensive Supervision Probation, subject to

extensions not to exceed a total probation time of ten years. A document titled

“Explanation of Rights” explaining, among other things, Thompson’s right to appeal

is in the appellate record, and it includes a notation initialed by the juvenile court

judge that the portion of the form about Thompson’s right to appeal was “[r]ead to

Juv at disposition” on December 11, 2014. On April 2, 2015, an Application for

Directive to Apprehend was filed by the State, alleging that Thompson violated a

condition of his probation. On April 19, 2017, the juvenile court signed an Order

Transferring the Determinate Sentence Probation to an Appropriate District Court.

      On July 24, 2017, Thompson filed a Writ of Habeas Corpus pursuant to article

11.08 of the Texas Code of Criminal Procedure, alleging that he was denied effective

assistance of counsel by the failure of his trial counsel for the juvenile proceeding

“to perfect and pursue [Thompson’s] direct appeal[,]” and requesting an order

granting an out-of-time direct appeal. The case was transferred to the 260th District

Court and the district court held a hearing on the application for writ of habeas

corpus.



                                          2
      At the hearing, Thompson’s mother testified that she retained Thompson’s

trial counsel to represent him in the juvenile matter. During direct examination,

Thompson’s mother testified that after the adverse verdict at the trial in December

2014, she was sitting behind Thompson and his trial counsel and Thompson’s

counsel turned around and said, “We can appeal.” According to Thompson’s mother,

she and Thompson had intentions to appeal, did not know anything about the appeal

process, and presumed Thompson’s counsel would be pursuing the appeal.

Thompson’s mother agreed that she texted Thompson’s trial counsel for the juvenile

proceeding in late January, after the time had expired for giving notice of appeal,

and asked if he was still “going to be the lawyer[.]” Thompson’s mother believed

that Thompson’s trial counsel for the juvenile proceeding “had taken care of the

paperwork . . . or whatever he had to do for the appeal.” She later learned that he

was not representing her son on appeal and that he was taking a job at the Jefferson

County District Attorney’s Office. On cross-examination, Thompson’s mother

agreed that she knew in December that her son’s trial counsel for the juvenile

proceeding was going to work at the district attorney’s office. She agreed that in her

affidavit in support of the writ she had stated that trial counsel told her, “We will

appeal.” She admitted at the habeas hearing that it was “four years ago[]” and she

was “trying to recall[]” whether Thompson’s trial counsel said, “We will appeal” or

                                          3
“We can appeal.” According to Thompson’s mother, she realized in January 2015

that no appeal had been pursued. Thompson’s mother testified that in April 2015

there was a hearing about Thompson’s failure to follow the terms of his probation,

and Thompson had different appointed counsel in that hearing. Thompson’s mother

also testified that she hired a different attorney in April 2015 to file a writ, but the

writ was not filed by the new attorney until July 21, 2017.1 According to Thompson’s

mother, in October 2015, she hired a different attorney to represent Thompson in a

Motion to Modify. Thompson’s mother stated that she did not discuss an appeal with

the appointed counsel or the attorney she hired to represent her son in the Motion to

Modify because they were Thompson’s counsel for “something totally different[.]”

      In Thompson’s mother’s affidavit, which was admitted into evidence at the

habeas hearing, she alleged the following:

      . . . Towards the end of our wait [for sentencing], [trial counsel in the
      juvenile proceeding] came to the table and asked me “What about the
      financial part of the appeal?”. He stated that it would be expensive. I
      told him I could handle it and I would do what I had to do.
              ...
              I assumed [trial counsel in the juvenile proceeding] was taking
      care of the letter of appeal. He was still Micah’s attorney, and I assumed
      he was taking care of him on his end, while we took care of the list of
      things we had to do. I did not hear of a time frame for the appeal, only
      for my list of things to do. Micah and I definitely wanted to appeal and
      1
        State’s counsel represented to the habeas court during the hearing that on
February 14, 2017, a motion was filed to transfer Thompson’s juvenile case to the
adult system.
                                         4
      thought [trial counsel for the juvenile proceeding] was taking care of
      the appeal for us. It was only long after all the time periods to appeal
      had passed that we learned he did not have an appeal and [trial counsel
      for the juvenile proceeding] had not filed the appeal.

      A family friend of Thompson’s testified that he was present for the 2014 trial

and he has known Thompson since Thompson was five years old. He testified as

follows:

      . . . After the verdict, obviously, the family was upset; and I didn’t agree
      with the verdict. But I recall [Thompson’s mother] asking [trial
      counsel] “What do we do now?”
               And he said, “We can appeal[.]” . . . Or no, actually he said “We
      will appeal.”

According to the family friend, he heard Thompson’s mother express her intention

that she wanted to appeal, but he overheard no other discussions about cost. In an

affidavit admitted at the habeas proceeding, the family friend stated that “[w]e were

all with the understanding that [trial counsel for the juvenile proceeding] would

appeal and perform his duties as Micah’s attorney[,]” Thompson or his mother never

told the trial counsel for the juvenile proceeding not to appeal in the family friend’s

presence, and he did not hear any attorney or judge say anything about having a time

limit to appeal.

      Thompson’s affidavit, admitted into evidence at the habeas hearing, stated in

pertinent part:


                                           5
      The jury went in the room and a few hours went by and they came out
      and said I was guilty. I was shocked, everything went quiet, I don’t
      remember much of anything else but the jury went back, then came out
      and said I was going home. [Trial counsel for the juvenile proceeding]
      said we can appeal and I said okay. . . . I did not understand anything
      about an appeal but [he] told me we would appeal. My mom thought
      [he] was handling the appeal. We found out later that he was not
      handling the appeal and I did not get an appeal even though we thought
      I had one.

      Thompson’s grandfather’s affidavit admitted into evidence stated the

following:

             . . . I attended [Thompson’s] trial in December, 2014[.]
             After the first break, I questioned Micah’s lawyer . . . about some
      things I thought he left out in his cross examination. He said he knew
      that, but he already had enough for an appeal. During lunch break, I
      asked [trial counsel for the juvenile proceeding] what he thought
      Micah’s chances were. He said that “it was looking very good, up to
      this point, because there had not been any evidence presented”.
             When lunch was over, court started again. After the last two
      witnesses were cross-examined, and both lawyers presented their
      closing arguments, the jury left to decide Micah’s verdict. I asked [trial
      counsel for the juvenile proceeding] about some discrepancy with the
      last two witnesses concerning the DNA. [He] said “he knew that” and
      if Micah was found guilty, that he had more than enough to file an
      appeal.
             [Trial counsel for the juvenile proceeding] never told me that
      there was only 30 days to file an appeal, nor d[i]d I hear him tell
      [Thompson’s mother] or anybody else anything about 30 days to file an
      appeal.

      The affidavit of Thompson’s trial counsel for the juvenile proceeding was also

admitted into evidence without objection. Therein, the attorney states


                                          6
       . . . This affidavit is being made in response to a Writ of Habeas
Corpus filed by Micah Thompson alleging ineffective assistance of
counsel for not filing an appeal in his case.
       I was unable to locate the file in this case from 4 years ago so this
affidavit is based upon memory and my common practices as an
attorney. I remember the case we are discussing, but details of the trial
are elusive after all this time. I begin this affidavit by saying that Micah
Thompson did have issues that I believed were appealable. I remember
there being issues, just not the exact issues.
       I remember having a discussion, as I always do, with Micah and
his family after the trial. . . . I do not recall a specific discussion
concerning the details of how an appeal would occur and there is a
reason for that.
       I have a common practice after trials. I inform the family that
there is a right to appeal and then give them my opinion whether there
are issues that I believe can be appealed without going into too much
detail due to the timing. Parents and the client are usually in either
shock or are extremely upset about the outcome. It is not the best time
to go into detail concerning the ins and outs of an appeal or the financial
aspects. I always tell clients to make an appointment in the next few
days after they have time to calm down to discuss the appeal. I tell them
within the next week so that we have time to decide which way to
proceed. I do this so that decisions aren’t made under all the stress of
the situation.
       I do not recall an appointment ever being made during the time
which I would expect them to call. I did not begin work at the District
Attorney’s Office until March 1st. No one called to discuss finances that
I recall nor did they call to check the status of the appeal. If an
appointment would have been made and we had discussed the appeal, I
would usually recommend that another attorney do the appeal so that
they could objectively look at the record and evaluate the trial
independently. I even refer people to attorneys including the attorney
who filed this writ.
       I did not intentionally not file an appeal. If there was a
misunderstanding as to the path that should have been taken to
effectively communicate to me that Micah and his parents truly wished
to pursue an appeal, I would hope the court would grant an out of time
appeal.
                                       7
      On December 13, 2018, the habeas court entered findings of fact and

conclusions of law:

                                  Findings of Fact

   1. On December 10, 2014, Applicant, Micah Thompson, was adjudicated
      of a delinquent conduct offense, namely Four Felony Counts of
      Aggravated Sexual Assault of a Child and was sentenced to Ten (10)
      years and was placed on Seven (7) years probation[.]
   2. On April 19, 2017, an Order Transferring the Determinate Sentence
      Probation to an Appropriate District Court was signed by the Juvenile
      Court[.]
   3. The case was transferred to the 260th District Court under the above
      cause number[.]
   4. On July 24, 2017, Applicant filed a Writ of Habeas Corpus seeking an
      out of time appeal alleging ineffective assistance of counsel for failing
      to advise Applicant of certain time limits for perfecting an appeal[.]
   5. Trial Counsel advised Applicant and his family that there was a right to
      appeal and told them to make an appointment in the next few days to
      discuss the appeal, but he did not hear anything about the appeal for
      almost 4 years[.] (Affidavit of trial counsel is attached)[.]

                                 Conclusions of Law

   1. Applicant received effective assistance of counsel[.]
   2. Neither Applicant nor his family contacted trial counsel to discuss
      appeal for over 3 years after the jury verdict[.]
   3. Applicant’s requested relief is denied.

                                   Issue on Appeal

      In one appellate issue, Thompson argues that the habeas trial court erred in

failing to grant him an out-of-time appeal. According to Thompson, “[t]he trial court

erroneously relied on only a portion of an affidavit from trial counsel to deny relief,

                                          8
and ignored the overwhelming evidence to support an out-of-time appeal.”

Thompson argues he was denied his right to effective assistance of counsel to which

he was entitled to perfect direct appeal.

                                 Standard of Review

      “We generally review a trial court’s decision to grant or deny relief on a writ

of habeas corpus under an abuse of discretion standard[.]” Ex parte Cummins, 169

S.W.3d 752, 755 (Tex. App.—Fort Worth 2005, no pet.). The trial court abuses its

discretion if it acts without reference to any guiding principles or acts arbitrarily or

unreasonably. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985)). In reviewing the trial court’s decision, we review the facts in the light most

favorable to the trial judge’s ruling. See Ex parte Peterson, 177 S.W.3d 804, 819

(Tex. Crim. App. 2003) (per curiam), overruled in part on other grounds by Ex parte

Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). We “‘afford almost total

deference to a trial court’s determination of the historical facts that the record

supports especially when the trial court’s fact findings are based on an evaluation of

credibility and demeanor.’” Peterson, 117 S.W.3d at 819 (quoting Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); see also Arreola v. State, 207 S.W.3d

387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

                                            9
      “We afford the same amount of deference to the trial judge’s rulings on

‘application of law to fact questions’ if the resolution of those ultimate questions

turns on an evaluation of credibility and demeanor. If the resolution of those ultimate

questions turns on an application of legal standards, we review the determination de

novo.” Ex parte Urquhart, 170 S.W.3d 280, 283 (Tex. App.—Dallas 2005, no pet.)

(citing Peterson, 177 S.W.3d at 819). We are not bound by the habeas judge’s

findings of fact. Ex parte Brandley, 781 S.W.2d 886, 887 (Tex. Crim. App. 1989).

Our duty is to determine whether the record supports those findings. See Ex parte

Watkins, 770 S.W.2d 816, 818 (Tex. Crim. App. 1989); Ex parte Adams, 768 S.W.2d

281, 288 (Tex. Crim. App. 1989). Generally, if the trial judge’s findings are

supported by the record, they should be accepted by this Court. Ex parte Castellano,

863 S.W.2d 476, 485-86 (Tex. Crim. App. 1993). “[R]egardless of whether the trial

judge personally views the witnesses testifying live, a reviewing court will defer to

the factual findings of the trial judge even when the evidence is submitted by

affidavit[.]” Ex parte Thompson, 153 S.W.3d 416, 425 (Tex. Crim. App. 2005)

(Cochran, J., concurring) (citing Manzi v. State, 88 S.W.3d 240, 242-44 (Tex. Crim.

App. 2002) (giving great deference to trial court’s factual determinations based on

affidavits because “a trial court’s rulings on questions of purely historical fact have

traditionally been given deference even absent credibility determinations”; “the fact

                                          10
remains that it is traditionally the role of the trial court to resolve issues of historical

fact, whether or not credibility and demeanor determinations are involved.”)). An

applicant for habeas corpus must prove his allegations by a preponderance of the

evidence. See Ex parte Galvan, 770 S.W.2d 822, 823 (Tex. Crim. App. 1989).

                            Effective Assistance of Counsel

       “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective assistance claim,

Thompson must establish that (1) trial counsel’s representation fell below the

objective standard of reasonableness, based on prevailing professional norms, and

(2) there is a reasonable probability that the result of the proceeding would have been

different but for counsel’s deficient performance. See id. at 687-88, 694; Perez v.

State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Hernandez v. State, 726

S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (adopting Strickland standard for

ineffective assistance claims under the Texas Constitution.) An appellant bears the

burden of proving by a preponderance of the evidence that his counsel was

ineffective. See Perez, 310 S.W.3d at 893; Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999).

                                            11
      When determining the validity of a defendant’s claim of ineffective assistance

of counsel, our review must be “highly deferential to trial counsel and avoid the

deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813 (citing Ingham v. State,

679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). There is a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance

and that counsel was motivated by sound trial strategy. Strickland, 466 U.S. at 689;

Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d

707, 712 (Tex. Crim. App. 2000); Chambers v. State, 903 S.W.2d 21, 32-33 (Tex.

Crim. App. 1995); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

To overcome the presumption of reasonable professional assistance, “‘any allegation

of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.’” Thompson, 9 S.W.3d at 814

(quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)); see

also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The

appropriate context is the totality of the representation. See Thompson, 9 S.W.3d at

813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990).

      Trial counsel has the responsibility to consult with and advise the client about

the meaning and effect of the judgment rendered by the court, the right to appeal

from the judgment, the need to give notice of appeal and taking other steps to pursue

                                         12
an appeal, as well as expressing counsel’s professional judgment as to possible

grounds for appeal and their merit, and delineating advantages and disadvantages of

appeal. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). Trial

counsel’s responsibilities consist of a two-step process. See Jones v. State, 98

S.W.3d 700, 703 (Tex. Crim. App. 2003). First, the attorney must determine whether

the defendant wishes to appeal. Id. The decision to appeal lies solely with the

defendant; and, the attorney’s duty is to advise him about the matters described

above. Id.; see also Axel, 757 S.W.2d at 374 (“The decision to appeal belongs to the

client.”). If the defendant does not wish to appeal, trial counsel’s representation ends.

See Jones, 98 S.W.3d at 703.

      The affidavit from Thompson’s trial counsel for the juvenile proceeding states

that due to the four-year span from the trial date and the habeas hearing, he was

unable to remember specifically what transpired. However, he did state that his

common practice after trials is to inform the family that there is a right to appeal and

then give them his opinion whether there are issues that he believes can be appealed.

He explained in his affidavit that he always tells clients to make an appointment in

the next few days after they have time to calm down to discuss the appeal. He stated

in his affidavit that as to this particular case he does not recall an appointment ever

being made to discuss the appeal, that he does not recall anyone calling him to

                                           13
discuss finances or to check the status of the appeal, and that if an appointment had

been made to discuss the appeal his common practice would have been to

recommend the client hire another attorney for the appeal.

      Thompson’s mother testified at the habeas hearing that she did not contact her

son’s trial counsel for the juvenile proceeding until late January after punishment

was assessed on December 11, 2014. At first Thompson’s mother testified at the

habeas hearing that after the verdict her son’s counsel stated “We can appeal.” On

cross-examination she admitted she was “trying to recall[]” what the attorney said

and she testified that her son’s counsel stated “We will appeal[,]” consistent with her

affidavit. She also admitted she never discussed an appeal with the other two

attorneys who were representing her son in his juvenile case during the timeframe

after his punishment was assessed and until the date after the appellate deadline

expired. As stated above, we afford almost total deference to the trial court’s

determination of the historical facts that the record supports when the trial court’s

fact findings are based on an evaluation of credibility and demeanor. Peterson, 117

S.W.3d at 819. The habeas court’s findings of fact—including the finding that trial

counsel advised Thompson and his family that there was a right to appeal and to

make an appointment in the next few days to discuss the appeal, but he did not hear

anything about the appeal for almost four years—are supported by the record.

                                          14
Accordingly, we accept the trial court’s finding. See Castellano, 863 S.W.2d at 485-

86.

      We accept the trial court’s finding of facts because they are supported by the

record. Next, we examine the trial court’s application of the law to the facts.

      The trial court found that Thompson received effective assistance of counsel.

We must “afford the same amount of deference to the trial judge’s rulings on

‘application of law to fact questions’ if the resolution of those ultimate questions

turns on an evaluation of credibility and demeanor.” Urquhart, 170 S.W.3d at 283.

Otherwise “[i]f the resolution of those ultimate questions turns on an application of

legal standards, we review the determination de novo.” Id. We find that the

resolution of the application of the law to the facts also involves an evaluation of the

credibility of the witnesses.

      On the record before us, we conclude that Thompson has failed to meet his

burden of proof to establish that his trial counsel’s representation fell below the

objective standard of reasonableness, based on prevailing professional norms. See

Thompson, 9 S.W.3d at 814; Ex parte O’Neal, No. 09-15-00229-CR, 2015 Tex. App.

LEXIS 9885, at **12-16 (Tex. App.—Beaumont Sept. 23, 2015, pet. ref’d) (mem.

op. not designated for publication); cf. Axel, 757 S.W.2d at 371, 374-75 (finding

deficient performance by trial counsel who had been informed after verdict that

                                          15
defendant wanted to appeal, briefly discussed possibility of taking an appeal with

defendant, did not withdraw his representation, did not respond to defendant’s

subsequent attempt to contact him about appealing, and failed to file a notice of

appeal). When an appellant fails to satisfy one prong of the Strickland test, a court

need not consider the other prong. See Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2001) (citing Strickland, 466 U.S. at 697). We overrule Thompson’s

appellate issue. Viewing the facts in a light most favorable to the trial court’s ruling,

we affirm the trial court’s denial of Thompson’s application for habeas relief. See

Peterson, 117 S.W.3d at 819; Cummins, 169 S.W.3d at 755.

      AFFIRMED.



                                                      _________________________
                                                           LEANNE JOHNSON
                                                                Justice

Submitted on April 10, 2019
Opinion Delivered July 24, 2019
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




                                           16
