Opinion issued October 15, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-19-00401-CR
                            ———————————
                      EX PARTE NII-OTABIL NELSON



                   On Appeal from the 182nd District Court
                            Harris County, Texas
                      Trial Court Cause No. 1372073-D

                          MEMORANDUM OPINION
      Appellant, Nii-Otabil Nelson, appeals from the trial court’s order with

findings of fact and conclusions of law, signed on June 7, 2019, denying his fourth

application for a writ of habeas corpus, filed under article 11.072 of the Texas Code

of Criminal Procedure. We affirm.
                                   Background
      On April 15, 2014, after being charged with injury to a child, a third-degree

felony, Nelson, with counsel, pleaded nolo contendere or no contest to the reduced

charge of assault—bodily injury, a class A misdemeanor. See TEX. PENAL CODE §§

22.04(a)(3), (f), 22.01(a)(1), (b); see also Ex parte Nii-Otabil Nelson, 546 S.W.3d

742, 743 (Tex. App.—Houston [1st Dist.] Feb. 15, 2018, no pet.). On the same day,

the trial court signed an order of deferred adjudication of Nelson’s guilt and placed

him on community supervision for eighteen months. See id.

      On April 28, 2015, the trial court signed an order unsatisfactorily terminating

Nelson from his deferred adjudication community supervision. See id. at 744. This

Court affirmed the denial of or dismissed for want of jurisdiction Nelson’s appeals

from his first three habeas corpus applications challenging the same underlying 2014

order placing him on community supervision for assault—bodily injury. See id. at

744–45 (summarizing Nelson’s first three habeas corpus applications).

      On January 24, 2019, Nelson, through habeas counsel, filed his fourth article

11.072 habeas application in the trial court, which was assigned to the underlying

trial court cause number 1372073-D. Nelson again alleges in this habeas application

that he is actually innocent of the class A misdemeanor charge of assault—bodily

injury involving his son, A.T.N., to which he had pleaded no contest and had been

later placed on deferred adjudication community supervision in 2014. Nelson’s


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fourth habeas application again attaches his affidavit, the police report and the same

two affidavits from his other son, O.N., one signed on May 13, 2016, and one signed

on August 10, 2016, both of which were previously attached to his third habeas

corpus application.

      The State filed a first amended original answer on February 28, 2019, and first

amended proposed findings of fact and conclusions of law on March 15, 2019, which

the trial court had not signed when it signed a directive order denying Nelson’s

habeas application on April 22, 2019, or when Nelson filed his April 25, 2019 notice

of appeal. The trial court certified that appellant had the right of appeal on May 21,

2019. See TEX. R. APP. P. 25.2(a)(2). The district clerk filed a supplemental clerk’s

record with the “State’s Second Amended Proposed Findings of Fact, Conclusions

of Law and Order,” signed by the trial court on June 7, 2019. This Court’s July 23,

2019 order deemed Nelson’s notice of appeal to be filed on June 7, 2019, after the

findings and conclusions and order were signed. See TEX. R. APP. P. 27.1(b).

         The Habeas Court’s Findings of Fact and Conclusions of Law
      Without a hearing, the habeas court adopted and signed the “State’s Second

Amended Proposed Findings of Fact, Conclusions of Law and Order” on June 7,

2019, denying Nelson’s fourth habeas application, assigned to trial court cause

number 1372073-D. The court entered the following pertinent findings and

conclusions:


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                              FINDINGS OF FACT
Applicant’s Instant Writ of Habeas Corpus

      22. On January 24, 2019, the Applicant filed the instant writ alleging
      actual innocence and collateral consequences. Applicant’s Writ at 1, 7.

      23. To support the allegations the Applicant makes in the instant
      writ, the Applicant attaches a typewritten affidavit from O.N. and a
      handwritten affidavit from O.N. Applicant’s Writ Exhibits C and D.

      24. The handwritten affidavit from O.N[.] attached to the instant writ
      is identical to both the handwritten statement attached to the
      Applicant’s “B” Writ [second habeas] and the handwritten affidavit
      attached to the Applicant’s “C” Writ [third habeas]. State’s Writ Exhibit
      E, “B” Writ at 11-12; State’s Writ Exhibit G, August 10, 2016 affidavit
      from O.N[.] attached to Applicant’s “C” Writ; Applicant’s Writ Exhibit
      D.

      25. The trial court finds that the Applicant has alleged that he is
      actually innocent in his previous two (2) habeas applications and has
      used the same statement from his son, O.N[.], as evidence to support
      his allegations.

      26. The trial court finds that the Applicant’s instant writ application
      lacks sufficient specific facts establishing that the claims in the instant
      writ application have not been raised in previous writ applications.

      27. Based on the existing previous writs, the trial court finds that the
      claims in the instant writ application are frivolous in light of the fact
      that they are substantively the same claims made in the Applicant’s
      previous two (2) writ applications.

      28. Based on the Applicant’s use of the affidavit signed by O.N[.]
      which is dated August 10, 2016, the trial court finds that O.N[.]’s
      statements were ascertainable before the date that the Applicant filed
      the instant writ.




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                            CONCLUSIONS OF LAW
      37.    The Applicant is barred from obtaining habeas relief via the
             instant writ because he fails to establish sufficient specific facts
             which establish that the claims in the instant writ have not been
             presented in any previously considered application filed under
             article 11.072. TEX. CODE CRIM. PROC. ANN. art. 11.072, section
             9.

      38.    The claims in the instant writ are frivolous because the First
             Court of Appeals has previously affirmed the denial of the exact
             claims. TEX. CODE CRIM. PROC. ANN. art. 11.072, section 7; Ex
             parte Nelson, No. 01-17-00152-CR, 2017 WL 1149214 (Tex.
             App.—Houston [1st Dist.] Mar. 28, 2017, no pet.) (mem. op., not
             designated for publication).

      Based on these findings and conclusions, the habeas court denied Nelson’s

fourth habeas application on June 7, 2019. This Court submitted this case without

briefing. TEX. R. APP. P. 31.2(a).

                                     Discussion
A.    Standard of Review
      Texas Code of Criminal Procedure article 11.072 establishes the procedure

for an applicant to seek habeas corpus relief “from an order or a judgment of

conviction ordering community supervision.” TEX. CODE CRIM. PROC. art. 11.072, §

1. Under article 11.072, this Court has jurisdiction to consider an appeal of such an

order denying habeas corpus relief. TEX. CODE CRIM. PROC. art. 11.072, § 8.

      Generally, an applicant seeking habeas corpus relief based on an involuntary

guilty plea must prove his claim by a preponderance of the evidence. Kniatt v. State,

206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citation omitted). When reviewing

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the trial court’s ruling on a habeas corpus application, we view the facts in the light

most favorable to the trial court’s ruling and will uphold it absent an abuse of

discretion. See id. However, the generally applied abuse of discretion standard is not

appropriate “when the decision does not turn on the credibility or demeanor of

witnesses.” Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999); see also

Ex parte Aguilar, 501 S.W.3d 176, 178 (Tex. App.—Houston [1st Dist.] 2016, no

pet.). Statutory construction is a question of law that we review de novo. Spence v.

State, 325 S.W.3d 646, 650 (Tex. Crim. App. 2010); see also Ex parte Aguilar, 501

S.W.3d at 178. We will uphold the trial court’s decision on any theory of law

applicable to the case. Ex parte Evans, 410 S.W.3d 481, 484 (Tex. App.–Fort Worth

2013, pet. ref’d).

B.    Applicable Law
      Article 11.072 normally restricts habeas applicants to just “one bite of the

apple.” Cf. Ex parte Santana, 227 S.W.3d 700, 703 (Tex. Crim. App. 2007)

(describing Article 11.07, which is similarly worded). However, the statute provides

a limited exception for subsequent applications:

         If a subsequent application for a writ of habeas corpus is filed after
         final disposition of an initial application under this article, a court
         may not consider the merits of or grant relief based on the
         subsequent application unless the application contains sufficient
         specific facts establishing that the current claims and issues have not
         been and could not have been presented previously in an original
         application or in a previously considered application filed under this
         article because the factual or legal basis for the claim was

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         unavailable on the date the applicant filed the previous application.

TEX. CODE CRIM. PROC. art. 11.072, § 9(a).

      After a trial court considers and rejects an applicant’s initial article 11.072

habeas corpus application, that court may not consider subsequent article 11.072

applications unless the new application contains sufficient specific facts

“establishing that the current claims and issues have not been and could not have

been presented” in a previous application “because the factual or legal basis for the

claim was unavailable on the date the applicant filed the previous application.” Id.

And, with respect to a factual basis, the only basis alleged by Nelson here, “a factual

basis of a claim is unavailable on or before a date described by that subsection if the

factual basis was not ascertainable through the exercise of reasonable diligence on

or before that date.” Id. § 9(c). Thus, the rejection of an initial article 11.072 habeas

corpus application is the trigger event for section 9’s subsequent application of

abuse-of-the-writ restrictions. See Ex parte Salazar, 510 S.W.3d 619, 625 (Tex.

App.—El Paso 2016, pet. ref’d) (citation omitted).

C.    Analysis
      Nelson’s fourth habeas corpus application, filed by counsel, begins by stating

that it “is being filed to replace the Third Actual Innocen[ce] Application for Writ

of Habeas Corpus that was filed pro se in December 2018.” Nelson claims that he is

actually innocent and that there is newly discovered evidence from a new affidavit


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from his other son, O.N., dated January 5, 2019, which provides further recantation

of his first two affidavits, and one of those, the August 10, 2016 handwritten

affidavit, was also attached to this fourth application.

      However, as noted above, after the habeas court denied Nelson’s first article

11.072 habeas corpus application on September 22, 2014, this rejection triggered

section 9’s subsequent application abuse-of-the-writ restrictions. See Ex parte

Salazar, 510 S.W.3d at 625. Thus, to be entitled to relief under article 11.072 after

his first three habeas applications were denied, Nelson has the burden of proving

that the claims and issues in his fourth application “have not been and could not have

been presented previously in an original application . . . because the factual or legal

basis for the claim was unavailable on the date [he] filed the previous application.”

TEX. CODE CRIM. PROC. art. 11.072, § 9(a).

      Here, the trial court found that Nelson “has alleged that he is actually innocent

in his previous two (2) habeas applications and has used the same statement from

his son, O.N[.], as evidence to support his allegations.” Thus, the habeas court found

that Nelson’s “instant writ application lacks sufficient specific facts establishing that

the claims in the instant writ application have not been raised in previous writ

applications,” and because he used “the affidavit signed by O.N[.] which is dated

August 10, 2016, the trial court finds that O.N[.]’s statements were ascertainable

before the date that the Applicant filed the instant writ.” Thus, Nelson’s fourth


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habeas application provided no new facts that “have not been and could not have

been presented previously in an original application” because his actual-innocence

claim and his son O.N.’s handwritten 2016 affidavit were previously submitted in

his third habeas application. TEX. CODE CRIM. PROC. art. 11.072, § 9(a). Thus,

Nelson’s fourth habeas application provided no factual basis that was “unavailable

on the date [he] filed the previous application.” Id. Therefore, we hold that Nelson’s

fourth habeas application was properly denied because it failed to overcome Section

9’s new-factual-basis procedural bar. See id.

      We overrule appellant’s only issue.

                                    Conclusion
      Accordingly, we affirm the district court’s order denying Nelson’s fourth

habeas application.

                                  PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).




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