Affirmed and Opinion filed August 7, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00415-CR
                               NO. 14-17-00416-CR


                    EX PARTE CLINTON ONYEAHIALAM


                   On Appeal from the 209th District Court
                             Harris County, Texas
                Trial Court Cause Nos. 1450411-A & 1450412-A


                                  OPINION

      Pursuant to a plea bargain with the State, appellant Clinton Onyeahialam
pleaded guilty to sexual assault of a child and sexual assault and received eight years
of deferred-adjudication community supervision for each offense. After the State
filed a motion to adjudicate appellant’s guilt, appellant filed an application for
habeas corpus under article 11.072 of the Texas Code of Criminal Procedure.
Appellant claimed that he had received ineffective assistance from plea counsel,
rendering his plea involuntary. The trial court conducted a hearing and denied
appellant relief. We affirm.

                                         I. Background

       Appellant originally was charged with engaging in sexual relations with two
girls under the age of 17. Appellant was 19 at the time of the alleged offenses, and
because one of the complainants was within three years of appellant’s age but
allegedly was unconscious at the time of the sexual contact, one of the charges was
changed to sexual assault.1 The State asserted that it had a video recording of
appellant having sex with one of the complainants and engaging in sexual acts with
the other complainant.

       Appellant retained counsel to represent him and subsequently pleaded guilty
pursuant to a plea agreement under which he would be placed on deferred
adjudication for eight years for both offenses to run concurrently. The trial court
accepted appellant’s guilty plea and sentenced him in accordance with the plea
agreement. Appellant signed and initialed the usual waivers and admonishments as
well as his guilty plea.

       A little over a month after appellant was placed on community supervision,
the State filed a motion to adjudicate his guilt, apparently because appellant had
explicit pictures on his phone in violation of the conditions set for his community
supervision. Appellant then retained habeas counsel who filed an application for writ
of habeas corpus, alleging that appellant had received ineffective assistance from his
plea counsel. Appellant attached his affidavit and his father’s affidavit in support of
the application. Appellant stated that he would not have pleaded guilty but for his
attorney’s allegedly incorrect and ill-informed advice. Appellant’s plea counsel also

       1
         Texas Penal Code section 22.011(e) provides an affirmative defense for prosecution for
sexual assault of a child when the alleged perpetrator is less than three years older than the alleged
victim and the alleged victim is fourteen years of age or older. Tex. Penal Code § 22.011(e).

                                                  2
apparently filed an affidavit disputing statements made by appellant and his father
in their affidavits. Among other things, plea counsel noted in his affidavit that
appellant confessed his guilt to the charges and that appellant “and his parent were
not prepared financially to try this case.”

      The trial court held a hearing on the application at which appellant and his
plea counsel both testified. In his testimony, appellant denied guilt, explaining that
he had had consensual sex with the older complainant and did not have sex with the
younger complainant. Appellant further asserted that he had asked to go to trial but
counsel told him counsel would need more money in order to go to trial. Plea counsel
testified, among other things, that the decision to plead guilty was not based on
financial considerations but instead was due to appellant’s desire to avoid
incarceration.

      The trial court denied the application. In its findings of fact, the trial court
found that plea counsel’s testimony was “credible and reliable” and appellant’s
testimony was not, appellant instructed plea counsel “to settle the case in a plea
negotiation and [not] take the case to trial,” plea counsel “was prepared to go to trial
if [appellant] had made the choice to go to trial,” and appellant was properly
admonished and “freely and voluntarily pleaded guilty.” The trial court further
concluded that appellant failed to demonstrate he received ineffective assistance of
counsel or that his “guilty plea was unlawfully induced, made involuntarily, or made
without an understanding of the nature of the charge[s] against him and the
consequences of his plea.”

                              II. Standards of Review

      A. Habeas Corpus

      The writ of habeas corpus is “an extraordinary remedy” to be used when one


                                              3
is restrained in one’s liberty. Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim. App.
2014). Article 11.072 of the Code of Criminal Procedure establishes the procedures
to apply for a writ of habeas corpus in a criminal case in which the applicant was
placed on community supervision. Tex. Code Crim. Proc. art. 11.072, § 1. Unless
the trial court determines from the face of an application or documents attached to
an application that it must deny the application as frivolous, the court must enter
findings of fact and conclusions of law. Id. § 7(a).

      We review a ruling on an application for writ of habeas corpus for an abuse
of discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011). A trial
court abuses its discretion if its decision lies outside the zone of reasonable
disagreement. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston [14th
Dist.] 2009, pet. ref’d). An applicant seeking post-conviction habeas corpus relief
has the burden to establish by a preponderance of the evidence that the facts entitle
him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).

      In reviewing the denial of an application for habeas relief, we examine the
habeas record in the light most favorable to the trial court’s ruling. Kniatt v. State,
206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The trial court is the sole finder of
fact in a post-conviction application for writ of habeas corpus filed under article
11.072. Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). As a result,
appellate courts have less leeway to disregard the trial court’s findings in the article
11.072 context. Garcia, 353 S.W.3d at 788. We defer to the trial court’s factual
findings that are supported by the record. See Ex parte Wheeler, 203 S.W.3d 317,
325–26 (Tex. Crim. App. 2006). We will uphold the trial court’s judgment as long
as it is correct on any theory of law applicable to the case. Ex parte Taylor, 36
S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam).



                                           4
      B. Ineffective Assistance of Counsel Claim

      A defendant has a constitutional right to effective assistance of counsel in plea
proceedings. Ex parte Reedy, 282 S.W.3d 492, 500–01 (Tex. Crim. App. 2009); see
also U.S. Const. amend. VI; Tex. Const. art. I, § 10. A guilty plea occasioned by
ineffective assistance of counsel is not knowingly and voluntarily entered. Ex parte
Niswanger, 335 S.W.3d 611, 614–15 (Tex. Crim. App. 2011), abrogated on other
grounds by Cornwell v. State, 471 S.W.3d 458 (Tex. Crim. App. 2015). A guilty
plea that is not knowing and voluntary is invalid. See N. Carolina v. Alford, 400 U.S.
25, 31 (1970) (holding that a guilty plea is valid only if it “represents a voluntary
and intelligent choice among the courses of action open to the defendant”).

      When an applicant for habeas corpus relief challenges the validity of a plea
entered upon the advice of counsel and contends that counsel was ineffective, the
applicant must show that: (1) counsel’s advice with respect to accepting a plea offer
did not fall within the range of competence demanded of attorneys in criminal cases,
and (2) but for the attorney’s errors or deficiencies, there is a reasonable probability
the applicant would not have pleaded guilty to the charged offense and instead would
have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Ex parte
Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) Torres, 483 S.W.3d at 47.
We consider the totality of the circumstances in determining whether counsel was
ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

                                   III. Discussion

      In a single issue, appellant contends that the trial court abused its discretion in
denying his application because the record establishes that appellant’s guilty plea
was involuntary due to the ineffective assistance he received from plea counsel.
More specifically, appellant challenges the trial court’s finding that plea counsel was
prepared to go to trial; appellant insists instead that plea counsel’s advice to avoid
                                           5
trial by pleading guilty was improperly based on financial considerations, i.e., that
appellant could not afford to pay counsel through trial, and not on proper strategic
considerations.2

       In support of his argument, appellant relies on (1) the Court of Criminal
Appeals opinion in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005); (2) an
affidavit by appellant’s plea counsel; and (3) appellant’s own testimony. For the
following reasons, we do not find that the cited support establishes that plea counsel
provided ineffective assistance with respect to appellant’s acceptance of the plea
offer; that but for counsel’s conduct, there is a reasonable probability appellant
would not have pleaded guilty; or that the trial court abused its discretion in denying
the application. See Torres, 483 S.W.3d at 47; Harrington, 310 S.W.3d at 458.

       Briggs. The applicant for habeas corpus relief in Briggs had pleaded guilty to
causing the death of her infant son. Id. at 460. In her application, she complained
among other things that her retained plea counsel had advised her to plead guilty
without consulting with medical experts regarding the child’s cause of death. Id. at
465-66. The original medical examiner’s autopsy report had listed the cause as
“homicide,” but another medical examiner amended the report post-conviction to
list the cause of death as “undetermined” and concluded that there was no indication
of child abuse. Id. at 460-62. Other experts concurred. Id. at 462. In his affidavit, the
plea counsel in Briggs explained that he had requested funds from the applicant for
paying the remainder of his retainer and for hiring an expert to review the medical
records, but the applicant had been unable to come up with additional money. Id. at
466.


       2
           The State asserts that appellant failed to preserve the argument he makes on appeal by
raising it in the trial court. We will assume without deciding that appellant properly preserved the
argument he makes on appeal.

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       The Court of Criminal Appeals rejected the idea that counsel had acted
reasonably in light of the lack of funds, concluding that under the circumstances,
“the failure by applicant’s attorney to take any steps to subpoena the treating doctors,
withdraw from the case because applicant’s indigency prevented him from providing
constitutionally effective assistance of counsel, or request state-funded expert
assistance . . . constituted deficient performance.” Id. at 469. The Court stated that
“counsel has an absolute duty to conduct a prompt investigation of the case and
explore all avenues likely to lead to facts relevant to the merits of the case” and
further emphasized that counsel’s decision had been an economic one, based on the
client’s inability to pay, and not a strategic one. Id. at 467 (citing American Bar
Association Standards for Criminal Justice).

       The Court also concluded that the applicant was prejudiced, because had
counsel investigated and informed the applicant of the various medical conclusions,
the applicant probably would not have pleaded guilty. Id. at 469. Further, the Court
noted it was “highly likely” a jury would have found the applicant not guilty based
on reasonable doubt concerning the cause of the child’s death had the jury been
presented with expert testimony regarding the original medical examiner’s report.
Id. at 469-70.

       Counsel’s Affidavit. In the present case, appellant attempts to apply the
reasoning in Briggs to an affidavit from his own plea counsel.3 According to

       3
          Appellant acknowledges that the affidavit in question is not contained in the record on
appeal, but he has provided a copy as an exhibit to his brief and states that he has requested a
supplemental clerk’s record to be prepared containing the affidavit. In its brief, the State concurs
that the affidavit was filed with the trial court. For purposes of this appeal, we will assume without
deciding that we can consider the affidavit. See generally Ex parte Medellin, 223 S.W.3d 315, 358
& n.1 (Tex. Crim. App. 2006) (“We normally do not consider documents that are attached to briefs
for the truth of the matters contained within them.”), aff'd sub nom. Medellin v. Texas, 552 U.S.
491 (2008); Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San Antonio 2011, no pet.)
(explaining that appellate review of habeas corpus proceedings is not limited to the testimony and
other evidence adduced at the hearing but includes the record as it existed during the time of the
                                                  7
appellant, counsel’s statements in the affidavit demonstrate that counsel’s plea
advice, like that of the attorney in Briggs, was based on economic and not strategic
considerations. Appellant specifically cites the following passage from counsel’s
affidavit:

       To the best of my recollection, [appellant] was never happy that a
       conviction would result in life time sex offender registration program.
       He asked “if there was any way around it” and my answer was if he was
       found not guilty if case was tried by jury [sic]. My recollection is that
       [appellant] and his parent [sic] were not prepared financially to try this
       case.
       Appellant argues that particularly the last sentence indicates an economic
basis for counsel’s plea advice. Although the sentence in question suggests that
finances may have been a consideration for appellant and his parents, it stops short
of indicating that counsel’s plea advice was based on this factor. In his testimony
during the hearing, plea counsel denied that appellant’s decision to plead guilty was
a financial one. Counsel repeatedly maintained that appellant and his parents’
biggest concern was avoiding incarceration and that appellant wanted to plead guilty
in order to receive probation. And, counsel affirmed that had appellant wanted to go
to trial, “I would have fought this case to the best of my ability.” Counsel felt that
he had a duty to represent appellant at trial—if that’s what appellant wanted to do—
regardless of appellant’s finances. Counsel also averred that appellant’s plea was
voluntary and that appellant understood what was required of him and “what he was
entering into.” As the sole factfinder in a post-conviction habeas corpus proceeding,
the trial judge was free to believe plea counsel’s direct testimony over any
implication that may have arisen from the affidavit. See, e.g., Torres, 483 S.W.3d at
42. The trial judge expressly found counsel’s testimony to be “credible and

hearing); State v. Ybarra, 942 S.W.2d 35, 36 (Tex. App.—Corpus Christi 1996, pet. dism’d)
(same).

                                           8
reliable.”4

       Appellant’s Testimony. Appellant additionally points to his own testimony
as supporting the notion that plea counsel’s advice was based on economics and not
strategy, but as the sole factfinder, the trial judge was free to disregard appellant’s
testimony, and indeed, the court expressly found that appellant’s testimony was not
credible. See id.; Merrit v. State, 529 S.W.3d 549, 557 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref’d).

       Analysis. Turning back to the Court’s analysis in Briggs, it is apparent that
the circumstances in that case are readily distinguishable from those in the present
case. Whereas the applicant’s counsel in Briggs acknowledged he did not consult
experts because the applicant failed to provide funds to hire experts, plea counsel in
this case expressly denied that the plea advice was based on finances. Additionally,
the Court’s discussion in Briggs highlights the significant exculpatory evidence that
would have been uncovered had plea counsel in that case pursued alternative means
of obtaining expert review or testimony (e.g., subpoenas for treating physicians or
state-funded expert assistance). Here, appellant failed to show that plea counsel’s
advice to accept the State’s offer was based on economic rather than strategic
reasons. See Briggs, 187 S.W.3d at 467-70. Appellant did not identify any
exculpatory evidence that plea counsel had overlooked for economic reasons.
Appellant acknowledged that he had viewed the State’s video evidence showing him

       4
          Appellant points out portions of plea counsel’s testimony that he believes undercut
counsel’s credibility, including counsel’s admission that he never informed appellant that he could
get appointed counsel if he could not afford to pay plea counsel to represent him at trial and
counsel’s apparently incorrect assumption that the trial court had admonished appellant that he
would be required to report as a sex offender for the rest of his life. Although the trial judge may
certainly have considered these items in weighing counsel’s credibility, as factfinder, the judge
was free to believe all, some, or none of the testimony presented. See Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991); Merrit v. State, 529 S.W.3d 549, 557 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d).

                                                 9
having sex with one of the complainants. Unlike in Briggs, the evidence here
supports the trial court’s determinations that appellant did not receive ineffective
assistance of counsel and was not prejudiced by any errors or deficiencies of counsel.


                                  III. Conclusion

      Under the totality of the circumstances and viewing the evidence in the light
most favorable to the trial court’s ruling, we conclude that appellant has failed to
meet his burden of demonstrating that (1) counsel’s advice did not fall within the
range of competence demanded of attorneys in criminal cases and (2) but for the
attorney’s errors or deficiencies, there is a reasonable probability appellant would
not have pleaded guilty to the charged offenses and instead would have insisted on
going to trial. See Harrington, 310 S.W.3d at 458; Kniatt, 206 S.W.3d at 664;
Thompson, 9 S.W.3d at 813. Accordingly, the trial court did not abuse its discretion
in denying appellant’s application for writ of habeas corpus, and we overrule
appellant’s sole issue.

      We affirm the trial court’s judgment.




                                       /s/    Martha Hill Jamison
                                              Justice



Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Publish — TEX. R. APP. P. 47.2(b).




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