                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-17-00313-CR
                           ____________________

                    EX PARTE BRET ALAN ASHWORTH
_______________________________________________________           ______________

                On Appeal from the County Court at Law No. 2
                        Montgomery County, Texas
                          Trial Cause No. 17-30051
________________________________________________________           _____________

                          MEMORANDUM OPINION

      Bret Alan Ashworth appeals from the trial court’s denial of his post-

conviction application for a writ of habeas corpus. See generally Tex. Code Crim.

Proc. Ann. art. 11.09 (West 2015). In his application, Ashworth challenged his 2012

conviction in cause number 12-274745 for family-violence assault, a conviction that

resulted from a plea agreement. We affirm the trial court’s judgment.

      Ashworth’s appeal arises from an application for writ of habeas corpus that

he filed in 2017 in the County Court at Law Number Two of Montgomery County,

Texas. Ashworth’s application alleges that he pled guilty in cause number 12-

274745 even though he was innocent because his lawyer wanted $10,000 to fight the

case. According to Ashworth, he could not afford to pay his attorney, who was
                                         1
retained, the requested fee. Ashworth claims that when the prosecutor threatened to

charge him with a felony if he refused to agree to the plea agreement that the State

proposed, he decided to plead guilty and to forego his right to a trial.

      In response to Ashworth’s pro-se application, the State filed a motion to

dismiss. In support of its motion, the State alleged that Ashworth, in his application

for habeas relief, had failed to allege he was currently under any illegal restraint, to

identify the relief that he claimed he was entitled to receive, or to swear that the

allegations in his application were true.

      Approximately one month after the habeas application was filed, the trial

court scheduled a hearing to consider the matter. At Ashworth’s request, the hearing

was postponed and re-scheduled for an August hearing. Approximately two weeks

before that hearing, the State filed a supplemental answer, asserting laches. The

State’s supplemental answer also notes that Ashworth’s application failed to allege

that he was currently being confined or currently suffering from any collateral

consequences due to his conviction in cause number 12-274745. The State also

asserted that Ashworth’s claim of innocence relied upon information that was known

to him before he pled guilty in cause number 12-274745. Finally, the State asserted

that Ashworth’s 2012 plea agreement in cause number 12-274745 resulted from a

rational choice that Ashworth made between the alternatives that he faced when he



                                            2
decided to plead guilty. Following the hearing, the trial court denied Ashworth’s

application seeking habeas relief.

      The record on appeal does not show that Ashworth ever asserted that he was

indigent, nor has he asserted a claim of indigence in this appeal. See generally Tex.

R. App. P. 20.2. On August 21, 2017, we warned Ashworth that we would consider

the appeal on the clerk’s record alone unless he took the steps required to have a

reporter’s record of the hearing that the trial court conducted on his application

prepared and filed to support the arguments that he was raising in his appeal.

Ashworth did not respond to the Court’s notice, and we submitted his appeal without

the benefit of a reporter’s record. See Tex. R. App. P. 37.3(c).

      Under Texas law, an applicant seeking habeas relief has the burden to prove

that facts exist entitling the applicant to have the trial court issue a writ of habeas

corpus. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In the

absence of a reporter’s record, an appellate court considering a habeas corpus

application will presume that the evidence that was before the trial court at the

hearing on the application supported the trial court’s judgment. Ex parte McKeand,

454 S.W.3d 52, 54 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

      In his brief, Ashworth claims that he did not inflict the injuries on his wife

that resulted in his conviction in cause number 12-274745. Instead, Ashworth claims

that the injuries that resulted in his conviction resulted when his wife stumbled down

                                          3
some stairs and hit her head and arms. According to Ashworth, when the officers

responded to the scene, the officers “saw what their eyes saw not what really

happened.” In the absence of a reporter’s record, we are required to conclude that

Ashworth failed to convince the trial court in the hearing that he did not inflict the

injuries on his wife that resulted in his conviction in cause number 12-274745. See

McKeand, 454 S.W.3d at 54.

      Ashworth also complains in his brief that a public defender was not appointed

to represent him in cause number 12-274745, but the record shows that he was

represented by an attorney who he retained before he agreed to plead guilty.

Ashworth’s brief also fails to explain why he waited more than five years before he

decided to seek habeas relief. In the absence of a reporter’s record of the hearing that

occurred on Ashworth’s application, we presume that the trial court concluded that

Ashworth failed to prove his claims in the hearing. Id. We overrule Ashworth’s

issues, and we affirm the trial court’s order denying all relief.

      AFFIRMED.


                                               ________________________________
                                                       HOLLIS HORTON
                                                            Justice

Submitted on December 4, 2017
Opinion Delivered December 13, 2017
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.

                                           4
