                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00824-CR

                                EX PARTE Robert MARTINEZ, Jr.

                      From the County Court at Law No. 5, Bexar County, Texas
                                      Trial Court No. 587693
                             Honorable John Longoria, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: August 1, 2018

AFFIRMED

           Appellant Robert Martinez, Jr. (“Martinez”) appeals from the trial court’s order denying

his sixth amended application for writ of habeas corpus. We affirm the trial court’s order.

                                            BACKGROUND

           Martinez was arrested for driving while intoxicated (“DWI”) in 1983, 1984, 1994, and

again in 2013. He is currently serving a seven-year prison sentence for the 2013 offense, which

was enhanced to a felony based on the prior three offenses.

           Martinez filed a pro se application for writ of habeas corpus, which he subsequently

amended multiple times. After the fifth amendment, Martinez was appointed habeas counsel, who

prepared Martinez’s “Sixth Amended Application for Writ of Habeas Corpus” (“the Application”).

The Application sets forth two claims for relief. The first is premised on Martinez’s argument that
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he is “currently subjected to incarceration for the offense of Driving While Intoxicated in Cause

Number 587693 [the 1994 offense], based upon a plea of no contest that was not freely and

voluntarily entered, that was the result of ineffective assistance of counsel.” Exhibit E to the

Application is the “Factual Affidavit of Robert Martinez,” in which Martinez claims trial counsel:

       never advised me that by taking this plea, it could be used to enhance a future
       Driving While Intoxicated charge to felony because of my previous convictions.
       Had I known that it could be used to enhance a future charge of Driving While
       Intoxicated, I would not have taken a plea deal and would have proceeded to trial.
       I would have insisted on a trial and would never have taken any plea deal.

Martinez’s second claim for relief (“Denial of Access to Courts”) asserts he “has repeatedly been

denied access to the jail library and proper legal materials to research and draft his writ of habeas

corpus.”

       The trial court held a hearing on the Application. At the beginning of the hearing, the trial

court inquired about Martinez’s court-appointed habeas counsel. In response to the trial court’s

inquiry, Martinez confirmed he had sufficient time to confer with habeas counsel and was satisfied

with habeas counsel’s representation. Habeas counsel then called Martinez’s sole witness: the

court-appointed trial counsel who represented Martinez when he pleaded “no contest” to the 1994

offense. Trial counsel testified she did not remember “any specifics” about Martinez’s plea, which

was made over twenty years prior on June 23, 1995. Based on her review of court records, trial

counsel believed she only met with Martinez one time in court. Although trial counsel did not

remember her conversation with Martinez or any other facts about the case, she testified it was her

standard practice to inquire about a client’s prior criminal history before accepting a plea, and she

would explain to a client the meaning of a plea of “no contest.” Trial counsel did not remember

whether she discussed with Martinez his prior DWI arrests:

              Q. [by habeas counsel for Martinez] And just to be clear, you are not sure if
       you guys ever talked about [Martinez’s] prior DWIs and if they could ever be used
       again or not.
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                  A. [by trial counsel] That is correct. If the DA had said something to me, of
          course, anything they would have told me, I would have told [Martinez]; but I have
          no recollection one way or the other.

          The trial court subsequently issued its Findings of Fact and Conclusions of Law. The trial

court found, in pertinent part:

     •    [Trial counsel] had no independent recollection from 1995 that indicated that her
          performance was deficient. She acknowledged that the plea bargain paperwork
          contained her handwriting and indicated that the range of punishment reflected the
          range of punishment for Driving While Intoxicated, Open Container. She further
          testified that if there was a video in the case, she would have watched it, and
          evaluated the merits of the case according to the law.

     •    The court does not find credible [Martinez’s] affidavit nor [Martinez’s] testimony
          that he would have proceeded to trial.

Based on these findings, the trial court concluded Martinez’s plea to the 1994 offense was

voluntarily entered, and trial counsel’s performance “did not fall to the level of deficient

performance to merit a finding of ineffective assistance of counsel.” The trial court denied

Martinez’s Application for habeas relief without addressing Martinez’s second claim for relief

regarding denial of access to the courts.

          Martinez filed a notice of appeal and was appointed counsel to represent him in this court.

                                              DISCUSSION

          In two issues on appeal, Martinez challenges the trial court’s denial of the Application

because: (1) Martinez proved the “no contest” plea was rendered involuntary due to ineffective

assistance of trial counsel, and (2) the trial court erred because his right to access to courts was

denied.

A.        Standard of review

          An applicant seeking habeas corpus relief who claims his plea was not knowing and

voluntary must prove that claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d



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657, 664 (Tex. Crim. App. 2006); Ex parte Leal, 427 S.W.3d 455, 459 (Tex. App.—San Antonio

2014, no pet.). We review the facts in the light most favorable to the trial court’s ruling and will

not reverse unless the trial court abused its discretion. Ex parte Leal, 427 S.W.3d at 459. However,

where the facts are uncontested and the trial court’s ruling does not turn on the credibility or

demeanor of the witnesses, we review the trial court’s ruling de novo. Id.

B.      Ineffective assistance of counsel

        A criminal defendant has a Sixth Amendment right to effective assistance of counsel when

entering a guilty plea. Id. (citing Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Ex parte Harrington,

310 S.W.3d 452, 458 (Tex. Crim. App. 2010)). “To be entitled to habeas relief based on ineffective

assistance of counsel, a defendant must prove by a preponderance of the evidence that counsel’s

performance was deficient and that he was prejudiced as a result.” Id. To prove deficient

performance, the defendant must show counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms. Id. (citing Strickland v. Washington, 466

U.S. 668, 687–88 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009)). To prove

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

deficient performance, he would not have entered the plea and would have gone to trial instead.

Id. (citing Hill, 474 U.S. at 59).

        Here, Martinez argues trial counsel’s representation fell below an objective standard of

reasonableness because she failed to advise him that a plea of “no contest” to the 1994 offense

could be used to enhance a future DWI offense to a felony. However, as a general rule, counsel

has no duty to inform a defendant of the various ways his plea could be used against him as a

collateral, as opposed to direct, consequence of the plea. Ex parte Morrow, 952 S.W.2d 530, 536–

37 (Tex. Crim. App. 1997) (“Applicant has not proven by a preponderance of the evidence that

counsel’s alleged failure to advise him, ad infinitum, of the various ways such guilty pleas could
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be used against him at a hypothetical retrial, was ‘outside the wide range of competence demanded

of attorneys in criminal cases.’” (quoting Hill, 474 U.S. at 56)). A consequence is “collateral” if it

is not a “definite, practical consequence” of the defendant’s plea. Id. at 536. For instance, the

enhancing effect of a state conviction on a future federal sentence is a collateral, not a direct,

consequence of a guilty plea. Crawford v. State, 155 S.W.3d 612, 614 (Tex. App.—San Antonio

2004, pet. ref’d). When a defendant is fully advised of the direct consequences of his plea, his

ignorance of a collateral consequence does not render his plea involuntary. Ex parte Morrow, 952

S.W.2d at 536.

       Martinez does not identify, and we are not aware of, any authority requiring trial counsel

to advise him that a plea of “no contest” to the 1994 offense could be used to enhance a future

DWI offense committed over ten years later. Therefore, even if trial counsel failed to advise

Martinez of this potential, collateral consequence of his plea, Martinez has not demonstrated trial

counsel’s performance fell below an objective standard of reasonableness. See Strickland, 466 U.S.

at 687–88. Accordingly, the trial court did not abuse its discretion in denying Martinez’s petition

for writ of habeas corpus on this basis. Martinez’s first issue on appeal is overruled.

C.     Access to courts

       In his second issue on appeal, Martinez argues the trial court erred because he established

his right to access to courts was denied. “[T]he fundamental constitutional right of access to the

courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal

papers by providing prisoners with adequate law libraries or adequate assistance from persons

trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977) (emphasis added). Therefore, when

a prisoner is provided a court-appointed attorney, he is not deprived of his fundamental

constitutional right of access to the courts. See Bright v. State, 585 S.W.2d 739, 744 (Tex. Crim.

App. [Panel Op.] 1979) (holding fundamental constitutional right of access to the courts is satisfied
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where criminal defendant is appointed counsel); cf. Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir.

1996) (per curiam) (holding applicant prisoner who declined court-appointed representation had

no constitutional right to access a prison law library).

       Here, Martinez was appointed counsel to prepare his Application and to represent him in

the trial court. Martinez confirmed on the record during the hearing of his Application that he had

sufficient time to confer with his court-appointed habeas counsel and was satisfied with habeas

counsel’s representation. Accordingly, because Martinez was provided adequate assistance from

someone trained in the law, he was not deprived of his constitutional right to access the courts in

relation to this habeas proceeding. Therefore, Martinez’s second issue on appeal is overruled.

                                            CONCLUSION

       Because we conclude the trial court did not err in denying Martinez’s application for writ

of habeas corpus, we overrule Martinez’s issues on appeal and affirm the trial court’s judgment.

                                                   Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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