                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-129-CR


                         EX PARTE BRUCE PATTERSON

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     FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Bruce Patterson appeals the trial court’s denial of relief

requested in his application for writ of habeas corpus. We affirm.

      On April 17, 1996, appellant pleaded nolo contendere to driving while

intoxicated. The trial court issued a probation order memorializing appellant’s

bargained-for plea and ordering him to serve two years’ probation. Appellant

timely filed a motion for new trial and a notice of appeal.




      1
          … See Tex. R. App. P. 47.4.
      On August 23, 1996, while the appeal was pending, the trial court

granted appellant’s motion for new trial and issued a second probation order in

the same cause memorializing a second plea agreement in which appellant

agreed to plead guilty in exchange for two years’ probation. We then dismissed

appellant’s appeal as moot, noting that the trial court had granted a new trial.2

      On August 31, 1998, the trial court found that appellant successfully

completed the terms of his probation and discharged appellant from probation.

      On October 18, 2007, appellant filed with the trial court his Application

and Brief for Issuance of Writ of Habeas Corpus, alleging that he was denied

effective assistance of counsel, that his first plea was involuntary, and that the

trial court lacked jurisdiction to accept appellant’s second plea. The trial court

denied the requested relief, and this appeal followed.

      A person who has completed a term of community supervision for a

misdemeanor offense may attack the validity of the conviction by applying for

a writ of habeas corpus from the convicting court. 3         The writ issues by




      2
      … Patterson v. State, No. 02-96-00342-CR (Tex. App.—Fort Worth Oct.
10, 1996, no pet.)(not designated for publication).
      3
       … Tex. Code Crim. Proc. Ann. art. 11.072, § 2(b) (Vernon 2005);
Villanueva v. State, 252 S.W.3d 391, 395 (Tex. Crim. App. 2008).

                                        2
operation of law.4       The court’s ruling on the application for the writ is

appealable. 5

      We review a trial court’s decision to grant or deny the relief requested on

a writ of habeas corpus under an abuse of discretion standard.6 In reviewing

the trial court’s decision, we review the record in the light most favorable to the

trial court’s ruling.7    We pay almost total deference to the trial court’s

determination of historical facts that are supported by the record, especially

when the trial court’s fact findings are based on an evaluation of credibility and

demeanor.8 This deferential review applies even when “no witnesses testify

and all of the evidence is submitted in written affidavits.” 9       In a habeas




      4
          … Tex. Code Crim. Proc. Ann. art. 11.072, § 4(a).
      5
          … Id.§ 8; Villanueva, 252 S.W.3d at 396.
      6
      … Ex parte Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth
2005, no pet.); Ex parte Mann, 34 S.W.3d 716, 718 (Tex. App.—Fort Worth
2000, no pet.).
      7
       … Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003),
overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371
(Tex. Crim. App. 2007); Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
      8
          … Peterson, 117 S.W.3d at 819; Arreola, 207 S.W.3d at 391.
      9
          … Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006).

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proceeding, the applicant has the burden of proving that an error contributed

to his conviction or punishment.10

      Appellant contends that the trial court had no authority to grant a new

trial, to take a second plea, and to issue a second probation order. We agree.

The original order upon which appellant based his motion for new trial was

signed on April 17, 1996. Appellant filed his motion for new trial on May 10,

1996.      On July 1, 1996, the motion was overruled by operation of law.11

Thus, on August 23, 1996, when the trial court granted the motion for new

trial, took a new plea and ordered that appellant be placed on probation, it did

so without jurisdiction. Consequently, the second probation order was void.



      10
           … Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001).
      11
      … At the time appellant filed his motion for new trial, the applicable rule
was Texas Rule of Appellate Procedure 31(e). It provided

           (1) Time to Rule. The court shall determine the motion for
      new trial within 75 days after the date sentence is imposed or
      suspended in open court.
                                    ...

            (3) Failure to Rule. A motion not timely determined by
      written order signed by the judge shall be considered overruled by
      operation of law upon expiration of the period of time prescribed in
      section (e)(1) of this rule.

Tex. R. App. P. 31(e) (Tex. Crim. App. 1986, superseded 1997). The rule has
been recodified as Texas Rule of Appellate Procedure 21.8. See Tex. R. App.
P. 21.8.

                                       4
To determine whether appellant is entitled to habeas relief, however, we must

decide whether the first probation order also is void.

      Appellant argues that the first probation order of April 17, 1996, is void

because his court-appointed trial counsel provided ineffective assistance which

rendered his plea involuntary. Specifically, appellant alleges that, following his

arrest, his trial counsel advised him that he could either stay in jail until counsel

reviewed the state’s evidence or accept the plea bargain that was being

offered; that a conviction would not affect his commercial driver’s license; and

that he could not obtain a new bond. Thus, appellant contends he pleaded nolo

contendere 12 “under duress as I was desperate to keep my job which required

I stay out of jail.”

      “The longstanding test for determining the validity of a guilty plea is

whether the plea represents a voluntary and intelligent choice among alternative

courses of action open to the defendant.” 13 When a defendant challenges the

voluntariness of a plea based on the advice of counsel, alleging that his counsel




      12
       … A plea of nolo contendere has the same legal effect as a plea of guilty
except that it may not be used as an admission in any civil suit based upon or
growing out of the act upon which the criminal prosecution is based. Tex.
Crim. Proc. Ann. art. 27.02(5) (Vernon 2006). For purposes of this appeal,
appellant’s plea of nolo contendere is treated the same as a plea of guilty.
      13
           … Hill v. Lockhart, 474 U.S. 52, 55, 106 S. Ct. 366, 368 (1985).

                                         5
was ineffective, appellant has the burden to show 1) that counsel’s

performance fell below a reasonable standard of competence and 2) that

appellant would, with a reasonable probability, have pleaded not guilty and

insisted on going to trial had counsel not committed the errors alleged by

appellant.14

      The thrust of appellant’s ineffective assistance complaint is that he

pleaded nolo contendere to avoid losing his job. None of his affidavit testimony

demonstrates that his plea was based on trial counsel’s alleged advice. Nor is

there any allegation or evidence in the record of deficient conduct that

prevented appellant from obtaining a new bond. Therefore, appellant has not

met his burden of establishing that counsel’s performance fell below a

reasonable standard of competence, or that appellant received objectively

deficient representation.15



      14
        … Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999);
Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997), cert. denied,
525 U.S. 810 (1998), overruled in part on other grounds by Taylor v. State,
109 S.W.3d 443 (Tex. Crim. App. 2003).
      15
        … Regarding appellant’s claim that his plea was involuntary because
counsel failed to accurately advise him of the possible effect a conviction would
have on his commercial drivers license, a claim that a defendant was
misinformed by counsel, standing alone, is not enough to render a plea
involuntary. See Pena v. State, 132 S.W.3d 663, 669 (Tex. App.—Corpus
Christi 2004, no pet.); Tabora v. State, 14 S.W.3d 332, 334 (Tex.
App.—Houston [14th Dist.] 2000, no pet.); Fimberg v. State, 922 S.W.2d 205,

                                       6
      Because appellant has failed to meet his burden of showing that his first

plea was involuntary, the trial court did not abuse its discretion in denying

appellant’s application for writ of habeas corpus. The trial court’s judgment is,

therefore, affirmed.


                                                 PER CURIAM

PANEL: CAYCE, C.J.; DAUPHINOT and HOLMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 4, 2008




208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). Moreover, any effect
a conviction would have on appellant’s commercial drivers license would be a
collateral consequence of the conviction. Counsel’s failure to properly advise
a defendant of the collateral consequences of a conviction does not rise to the
level of constitutionally ineffective assistance of counsel and does not render
a plea involuntary. See Morrow, 952 S.W.2d at 536.

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