                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00214-CR




        EX PARTE RAY LOUIS JOHNSON, JR.




          On Appeal from the 62nd District Court
                  Hopkins County, Texas
       Trial Court Nos. 0317178, 0317179, 0317180




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                     MEMORANDUM OPINION
        Ray Louis Johnson, Jr. appeals from the trial court’s order denying relief on his

application for a writ of habeas corpus filed pursuant to Article 11.072 of the Texas Code of

Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West Supp. 2014).

I.      Background

        After Johnson’s October 2003 plea of guilty to three counts of aggravated sexual assault

of a child, the trial court entered orders placing Johnson on deferred adjudication probation 1 for

ten years. Thereafter, on February 21, 2005, Johnson was adjudicated guilty on each of those

offenses and was sentenced to forty years’ confinement for each offense. On May 15, 2014,

Johnson filed an application for a writ of habeas corpus pursuant to Article 11.072 of the Texas

Code of Criminal Procedure, basing his claim on his allegation that he was not competent to

enter a plea of guilty in 2003 because he had ingested hydrocodone thirty minutes prior to the

plea hearing, after having undergone oral surgery on the previous day. 2                          Johnson also

complained that his trial counsel at the time of his original guilty plea was ineffective in having

permitted Johnson to enter “into a plea agreement that was neither voluntary nor knowing.”

Johnson presented no evidence in support of his application other than his verification and

declaration (given under penalty of perjury) regarding matters alleged in the petition. The trial

court held no evidentiary hearing, but entered an order dated November 17, 2014, wherein the

1
 Although the Legislature determined to use the term “community supervision” in lieu of the term “probation,”
because the trial court employed the term “probation,” we will do likewise for the sake of continuity.
2
 In June 2005, Johnson filed an application for a writ of habeas corpus with the Texas Court of Criminal Appeals,
likewise alleging that his plea was involuntary due to the ingestion of hydrocodone. That application was dismissed
in September 2005. Johnson filed a second application for a writ of habeas corpus with the Texas Court of Criminal
Appeals in January 2012. That application was dismissed in March 2012.

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requested habeas corpus relief was denied; this order contained written findings of fact and

conclusions of law. After having taken judicial notice of the clerk’s file regarding issues relevant

to the writ, the trial court found the following:

       1.      On October 31, 2003, Applicant’s trial counsel affirmatively represented
               that Applicant was competent and understood the proceedings (Written
               Plea Admonishments).

       2.      The trial judge, Honorable Robert Newsom, was best suited to determine
               Applicant’s competency at the time his plea was entered on October 31,
               2003.

       3.      On October 31, 2003, at the time Applicant’s plea was entered and
               accepted, the trial judge, Honorable Robert Newsom, made a finding of
               fact that Applicant was competent. (Written Plea Admonishments)

       4.      On February 21, 2005, Applicant pled True to allegations contained in the
               State’s Motion to Proceed with Adjudication. Again on February 21,
               2005, Applicant confessed that at the time of his plea on October 31, 2003,
               he was the same person that pled guilty, that he understood the
               consequences of his plea, and that he read and understood the terms and
               conditions of his probation.

The trial court made the following conclusions of law:

       1.      Applicant was competent at the time his plea was entered on October 31,
               2003.

       2.      Applicant fully understood the consequences of his plea and placement on
               deferred adjudication.

       3.      Applicant did not raise the issue of his competency at the time he pled true
               to the State’s Motion to Proceed with Adjudication on February 21, 2005.

       4.      As this Court has determined that Applicant was competent at the time of
               his plea, the Court further finds that Applicant’s trial counsel was not
               ineffective.




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       In his sole point of error, Johnson claims that the trial court abused its discretion by

failing to conduct an evidentiary hearing on his application for a writ of habeas corpus. We

disagree with Johnson and determine that it was not mandatory for the trial court to have

conducted such an evidentiary hearing.

II.    Standard of Review

       We review a trial court’s decision to grant or deny an evidentiary hearing on an Article

11.072 habeas corpus application under an abuse of discretion standard. See Ex parte Gonzalez,

323 S.W.3d 557, 558 (Tex. App.—Waco 2010, pet. ref’d); Ex parte Cummins, 169 S.W.3d 752,

755 (Tex. App.—Fort Worth 2005, no pet.). Although Article 11.072 permits the trial court to

conduct a hearing before rendering its decision on the habeas corpus relief sought, it makes no

requirement that such a hearing be held. See TEX. CODE CRIM. PROC. ANN. art. 11.072. Section

6(b) of this Article states that in making the determination to grant or deny the relief sought in an

Article 11.072 application, “the court may order affidavits, depositions, interrogatories, or a

hearing, and may rely on the court’s personal recollection.” TEX. CODE CRIM. PROC. ANN. art.

11.072, § 6(b). Plainly, this Article leaves the decision of whether to conduct a hearing to the

trial court’s discretion. See Cummins, 169 S.W.3d at 757 (Article 11.072 does not require trial

court to hear evidence and allow appellant to cross-examine former trial counsel in application

for writ of habeas corpus alleging ineffective assistance); Gonzalez, 323 S.W.3d at 558 (same);

Ex parte Franklin, 310 S.W.3d 918, 922–23 (Tex. App.—Beaumont 2010, no pet.) (trial court

not required to hold hearing when determining whether to deny Article 11.072 application

alleging ineffective assistance of counsel); see also Ex parte Faulkner, No. 09-05-00478-CR,

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2006 WL 3094339, at *3 (Tex. App.—Beaumont Nov. 1, 2006, pet. ref’d) (mem. op., not

designated for publication) (decision to conduct hearing on Article 11.072 application is entirely

discretionary).

III.    Analysis

        Article 26.13 of the Texas Code of Criminal Procedure requires a trial court to admonish

a defendant, either orally or in writing, before accepting a guilty plea. See TEX. CODE CRIM.

PROC. ANN. art. 26.13(a) (West Supp. 2014). The trial court’s substantial compliance with

Article 26.13 creates a prima facie showing that the defendant’s guilty plea was entered

knowingly and voluntarily. See Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992);

Grays v. State, 888 S.W.2d 876, 878 (Tex. App.—Dallas 1994, no pet.). In the instant case, the

record reflects that Johnson was admonished in accord with Article 26.13, therefore creating a

presumption that his guilty plea was entered knowingly and voluntarily. Moreover, trial counsel

affirmatively represented that Johnson was competent and understood the proceedings. The trial

court also had some contravening evidence before it as to Johnson’s state of mind when he

entered his guilty plea in the form of his application for habeas corpus relief. 3 It is evident that

the trial court discounted this evidence, though, in light of the fact that (1) Johnson raised no

issue as to competency at the time of the adjudication hearing in 2005, (2) Johnson did not

complain about competency until after he was imprisoned following adjudication, and


3
 The application states, among other things, that Johnson “underwent an oral surgery [] procedure,” following which
he was prescribed a ten-milligram dose of hydrocodone to be taken every four hours and twenty-five milligrams of
promethazine, to be taken once a day. On the day of the plea hearing, applicant “consumed a 10 mg dose of the
narcotic Hydrocodone” approximately thirty minutes prior to the plea hearing on October 31, 2003. The application
further states that Johnson advised the trial court that he was on medication following surgery. Johnson claims this
ingestion of hydrocodone resulted in a plea that “was neither knowingly nor voluntarily entered into.”
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(3) Johnson received deferred adjudication probation for ten years for the offenses of aggravated

sexual assault at the plea hearing in 2003.

         Moreover, the trial court, in the exercise of its discretion, may well have considered the

eleven-year time span between the plea hearing and the filing of the application and the effect

this protracted time period may have had on a witness’ ability to recollect the events of the 2003

hearing. 4 See Ex parte Perez, 398 S.W.3d 206, 215–16 (Tex. Crim. App. 2013) (totality of

circumstances considered in decision to apply doctrine of laches).

         Considering the evidence before the trial court (including the presumption that Johnson’s

guilty pleas were knowingly and voluntarily made) together with the protracted time span that

intervened between the original plea hearing and the filing of the application for habeas corpus

relief, we cannot conclude that the trial court abused its discretion in making a decision on the

application without conducting a full evidentiary hearing. 5 See TEX. CODE CRIM. PROC. ANN.

art. 11.072, § 6(b); Gonzalez, 323 S.W.3d at 558; Franklin, 310 S.W.3d at 922–23; Cummins,

169 S.W.3d at 757.




4
 Johnson relies on Ex parte Whistance, No. 2-07-280-CR, 2007 WL 2891084, at *3 (Tex. App.—Fort Worth Oct. 4,
2007, pet. ref’d) (mem. op., not designated for publication). In that case, Whistance complained that she was under
the influence of methamphetamines at the time she entered her guilty plea and that her plea was, therefore,
involuntary. Id. at *1. In reaching its decision to deny Whistance’s application for habeas corpus relief, the trial
court considered affidavit evidence. Id. at *4, *8–9. Whistance, an unpublished opinion with no precedential value,
does not stand for the proposition that the failure to grant an evidentiary hearing under the facts presented here is an
abuse of discretion. Unlike Whistance, no affidavit evidence was presented to the trial court in this case.
5
 Johnson’s complaint is solely restricted to the fact that the trial court did not conduct an evidentiary hearing;
Johnson does not complain of the trial court’s refusal to grant his application for habeas corpus relief.
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IV.   Conclusion

      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      February 27, 2015
Date Decided:        March 24, 2015

Do Not Publish




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