Affirmed as Modified and Memorandum Opinion filed December 22, 2015.




                                       In The

                     Fourteenth Court of Appeals

                                 NO. 14-14-00862-CR

                       EX PARTE WOODROW MILLER


                    On Appeal from the 185th District Court
                            Harris County, Texas
                       Trial Court Cause No. 876249-F

                  MEMORANDUM                       OPINION


      Appellant, Woodrow Miller, appeals the trial court’s October 9, 2014 order
dismissing his sixth application for writ of habeas corpus—876249-F. Appellant
raises eight issues on appeal.

      In his first three issues, appellant argues that the trial court failed to resolve
his current application. Appellant first points out that the State’s answer was
untimely. Nevertheless, the trial court had the authority to deny his application as
frivolous even without an answer. Appellant further maintains that because the
court’s October 9th order refers to writ of habeas corpus application 876249-A in
one place and application 876249-F in other places, his sixth application—876249-
F—remains pending. We conclude that the trial court intended to dismiss the
application 876249-F as frivolous and that the order can be modified to reflect this
intent.

          In his fourth issue, appellant argues that when the trial court took judicial
notice of its entire file, the deferred-adjudication order and subsequent conviction
for indecency with a child became void for lack of supporting evidence.
Appellant’s fourth issue goes beyond a challenge to the trial court’s deferred
adjudication order, as it also attempts to challenge appellant’s conviction. We do
not have jurisdiction to address an argument that appellant’s conviction and
sentence are void. As to appellant’s argument regarding the deferred adjudication
order, we disagree that the trial court’s act of taking judicial notice voided that
order.

          In his last four issues, appellant attempts to litigate matters regarding two
previous writ applications—876249-D and 876249-E. Appellant’s appeal of the
denial of application 876249-D was unsuccessful. Our record does not indicate
that appellant sought an appeal from the dismissal of application 876249-E.
Because our review is limited to the application before us on appeal, we do not
reach any issues challenging the denial of appellant’s fourth and fifth applications.
Therefore, we affirm the trial court’s October 9th order dismissing appellant’s
application for writ of habeas corpus.

                                     BACKGROUND

          On May 20, 2002, appellant pled nolo contendere to the offense of
indecency with a child. Pursuant to a plea bargain, appellant was placed on seven
years’ deferred-adjudication probation.         On June 19, 2002, appellant timely
appealed. Thereafter, appellant moved to withdraw his appeal, which the trial

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court granted by order on June 27, 2002.             Because the trial court granted
appellant’s motion to withdraw, the district clerk did not forward appellant’s notice
of appeal. Appellant filed a mandamus petition with this Court in June 2004,
stating that the district clerk violated the mandatory duty to forward appellant’s
notice of appeal. We granted relief, and the district clerk subsequently forwarded
appellant’s 2002 appeal. In September 2004, this Court dismissed appellant’s
appeal in light of his prior motion to withdraw. Miller v. State, No. 14-04-00740-
CR, 2004 WL 2187136, at *1 (Tex. App.—Houston [14th Dist.] Sep. 30, 2004,
pet. ref’d) (mem. op., not designated for publication).

      Appellant filed a second notice of appeal in March 2006, contesting the trial
court’s May 20, 2002 deferred adjudication order.             This Court dismissed
appellant’s appeal for lack of jurisdiction. Miller v. State, No. 14-06-00293-CR,
2006 WL 1140661, at *1 (Tex. App.—Houston [14th Dist.] Apr. 27, 2006, pet.
ref’d) (mem. op., not designated for publication).

      In September 2006, appellant filed his initial application for writ of habeas
corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure. The
trial court denied this application in June 2007.         Appellant filed his second
application for writ of habeas corpus in February 2008. The trial court denied the
application and we affirmed. Ex parte Miller, No. 14-07-00532-CR, 2008 WL
1795053, at *1 (Tex. App.—Houston [14th Dist.] Apr. 22, 2008, pet. ref’d) (mem.
op., not designated for publication).

      On October 17, 2008, following the State’s motion to adjudicate guilt,
appellant’s guilt was adjudicated and he was sentenced to four years in prison.
Appellant filed his fourth application for writ of habeas corpus, which was denied




                                          3
as frivolous on October 30, 2008.1             Appellant’s appeal from that denial was
dismissed as untimely. Ex parte Miller, No. 14-12-00434-CR, 2012 WL 6018081
at *1(Tex. App.—Houston [14th Dist.] Dec. 4, 2012, pet. ref’d) (mem. op., not
designated for publication).

       In November 2012, the trial court signed a judgment nunc pro tunc
correcting a clerical error in the October 30, 2008 order on appellant’s fourth
application. Appellant timely filed a notice of appeal from the nunc pro tunc
judgment, and we affirmed. Ex parte Miller, No. 14-12-01141-CR, 2013 WL
3874983 at *1 (Tex. App.—Houston [14th Dist.] Feb. 28, 2013, no pet.) (mem.
op., not designated for publication). Appellant did not appeal the denial of his fifth
application—876249-E.

       Appellant’s sixth application2 for a writ of habeas corpus was filed under
Article 11.072 on March 15, 2006, prior to the adjudication of his guilt. For
reasons not disclosed in the record, the application was not processed before the
adjudication of guilt and the dismissals of appellant’s fourth and fifth applications.
On October 9, 2014, the trial court dismissed appellant’s sixth application as
frivolous because the merits of appellant’s challenges to the deferred-adjudication
order had been reviewed. This appeal followed.

                                           ANALYSIS

I.     Standard of Review

       We review the dismissal of a habeas corpus application under an abuse-of-
discretion standard and consider “the facts in the light most favorable to the

       1
        Appellant filed a third application for writ of habeas corpus in July 2008—876249-C.
Our record in this appeal does not contain the order denying that application.
       2
        While we refer to the application at issue in this appeal as appellant’s sixth application,
chronologically it would have been appellant’s third application for writ of habeas corpus.

                                                4
[habeas court’s] ruling.” Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App.
2006); Ex parte Roldan, 418 S.W.3d 143, 145 (Tex. App.—Houston [14th Dist.]
2013, no pet.). The applicant must put forth facts establishing, by a preponderance
of evidence, that he is entitled to relief. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). In a habeas corpus proceeding, the
trial judge is the sole finder of fact, and we therefore afford almost complete
deference to the trial court’s determination of historical facts supported by the
record. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex parte
Reed, 402 S.W.3d 39, 42 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). The
same deference is given to the trial court’s “application of law to fact questions, if
the resolution of those determinations rests upon an evaluation of credibility and
demeanor.”     Ex parte Reed, 402 S.W.3d at 42.             If the resolution of those
determinations falls on the “application of legal standards, we review the habeas
court’s determination de novo.” Id.

II.   The trial court had authority to deny appellant’s application as
      frivolous notwithstanding the State’s untimely answer.
      In his first issue, appellant maintains that the trial court should have stricken
the State’s Answer and Proposed Findings of Fact and Conclusions of Law.
According to appellant, those filings were untimely.

      Subsequent to the filing of an application for a writ of habeas corpus, an
applicant must serve a copy of the application on the State’s attorney. Tex. Code
Crim. Proc. Ann. art. 11.072 § 5(a) (West 2015). The applicant may satisfy this
requirement in one of two ways: “by either certified mail, return receipt requested,
or personal service.” Id. Upon service, the State may file an answer to the
application, but it is not required to do so. Id. § 5(b). If the State files an answer, it
must do so no later than the “30th day after the date of service.” Id. § 5(c). In the


                                            5
event that the State seeks to file an answer beyond the specified deadline, the trial
court may grant a 30-day extension for good cause shown. Id. The trial court must
“enter a written order [either] granting or denying the relief sought” within 60 days
of the State’s answer. Id. §6(a). But, if the court concludes “from the face of the
application [that] the applicant is manifestly entitled to no relief,” then the court
must make “a written order denying the application as frivolous.” Id. §7(a). “The
court may require the prevailing party to submit a proposed order.” Id.

       Appellant contends the State’s answer and proposed findings were untimely
because they were filed “more than 8 years late.” The record shows that the
State’s Original Answer and Proposed Findings of Fact and Conclusions of Law
were filed on October 8, 2014. Appellant argues that the State was provided notice
on two different dates—January 11, 2011 and February 4, 2014. The document
appellant submitted regarding the January 11, 2011 date of service refers to cause
number 876249-E, not 876249-F. The February 4, 2014 proof of service is a fax
cover sheet, which shows that the State received application 876249-F on February
4, 2014. Thus, the State’s answer was late by about seven months, not eight years.

       Nevertheless, the trial court had authority to deny appellant’s application as
frivolous pursuant to Article 11.072, section 7(a). Under that section, the trial
court may deny an application as frivolous without an answer, and it may require
the prevailing party to submit a proposed order. Appellant does not dispute on
appeal that his application showed he was manifestly entitled to no relief, as the
issues raised were the same as those raised in his first three applications for writ of
habeas corpus.3 Issue one is overruled.

       3
         In his latest application, appellant merely seeks to raise claims and challenges that have
already been resolved in prior applications. See Ex parte Miller, No. 14-07-00532-CR, 2008 WL
1795053, at *1–2 (Tex. App.—Houston [14th Dist.] Apr. 22, 2008, pet. ref’d) (mem. op., not
designated for publication). Specifically, appellant argues that (1) the State failed to charge him
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III.   The trial court’s order resolved appellant’s sixth application for writ of
       habeas corpus.
       In his next two issues, appellant points out that the trial court’s October 9th
order dismissing his sixth application—which was given the cause number
876249-F— provides: “the instant habeas application, cause number 0876249-A,
[should] be dismissed because the application is frivolous.” Appellant contends
that because of this mistake, his sixth application remains pending.4 We disagree.

       Under Texas Rule of Appellate Procedure 43.2(b), an appellate court “may
modify the trial court’s judgment and affirm it as modified.” Tex. R. App. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Haggerty
v. State, 429 S.W.3d 1, 12 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). A
court of appeals may modify an erroneous judgment and affirm it as modified if
the court has “necessary data and evidence” before it. Nicholas v. State, 56 S.W.3d
760, 767 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The purpose of such
authority is to make the record “speak the truth when the matter has been called to
[the court’s] attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992) (emphasis added). Appellant’s issue presents this Court with
such a situation.


with a crime; (2) the judge was not authorized to sign the community supervision orders; (3) his
plea was involuntary; and (4) he did not receive effective representation because lack of
preparation by his attorney of record forced him to enter a plea of nolo contendere and forego a
jury trial. A writ of habeas corpus is an extraordinary remedy and appellant cannot use such
remedy to re-litigate matters already resolved or that appellant could have, but did not, raise in a
direct appeal. Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). Further,
appellant has failed to show that either (1) such claims or issues have not been or could not have
been presented previously; or (2) the factual or legal claims were unavailable when his original
application was filed. Tex. Code Crim. Proc. Ann. art. 11.072 § 9(a) (West 2015). Therefore,
the requirements under 11.072 were not met.
       4
          Appellant also contends in his third issue that the trial court’s order is interlocutory
because it failed to dispose of his prior habeas applications. As discussed in the background
section, however, these applications were disposed of in other orders.

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      On October 9, 2014, the trial court adopted the State’s Proposed Findings of
Fact and Conclusions of Law filed in cause number 876249-F—the cause number
assigned to the sixth application at issue here. The caption on the order reflected
that the proposed order was for cause number 876249-F. In the second sentence,
however, the court “recommends that the instant habeas application, cause number
0876249-A, be dismissed because the application is frivolous.” The court goes on
to state that “the instant application is dismissed because there has been a previous
merits review of the applicant’s grounds,” which were “raised in his previous
challenges to the order of deferred adjudication in cause numbers 876249-A,
876249-B, and 876249-C.”         The order then concludes: “By the following
signature, the Court adopts the State’s Proposed Findings of Fact, Conclusions of
Law and Order in cause number 0876249-F.”

      Although appellant argues that the mistake left his sixth application, cause
number 876249-F, unresolved, the rest of the order—including the caption, the
concluding sentence, and the reference to 876249-A as a “previous challenge[]”—
make clear the trial court’s intent to dismiss cause number 876249-F. This Court
has the information available to it to modify the order so that the record correctly
reflects the trial court’s disposition. We therefore modify the first reference in the
order to “0867244-A” so that it says “0867244-F.” We overrule appellant’s second
and third issues.

IV.   Taking judicial notice of the trial court’s file did not void the appellant’s
      conviction for indecency with a child.
      In his fourth issue, appellant notes that during the hearing on the State’s
motion to adjudicate, the trial court took judicial notice of the trial court’s file,
which included allegations by appellant that there was no evidence to support the
order deferring adjudication or his conviction. As a result, appellant contends, the


                                          8
order deferring adjudication and his October 17, 2008 conviction became void.

          We first address appellant’s contention that the trial court’s judicial notice of
its file renders his conviction void. We do not have jurisdiction to address the part
of appellant’s fourth issue asserting that his conviction is void. See Tex. Code
Crim. Proc. Ann. art. 11.07 §§ 1, 3; Ater v. Eighth Court of Appeals, 802 S.W.2d
241, 243 (Tex. Crim. App. 1991) (holding that Court of Criminal Appeals is “only
court with jurisdiction in final post-conviction felony proceedings”). We do have
jurisdiction to address appellant’s contention that judicial notice voided the order
deferring adjudication, and we conclude that appellant is incorrect. Prior to the
State’s closing argument in the hearing on the motion to adjudicate guilt, the
attorney for the State requested that the trial court take judicial notice of the court’s
entire file. The trial judge then asked if the State desired the court to take judicial
notice of the primary case as well as appellant’s previous habeas corpus
applications—876249-A, 876249-B, and 876249-C. The State agreed that judicial
notice “would include any post-plea direct appeals or writs of the habeas corpus
files.”

          We have held that a trial court is permitted to take judicial notice of its “own
orders, records, and judgments rendered in cases involving the same subject matter
and between practically the same parties.” Resendez v. State, 256 S.W.3d 315, 323
(Tex. App.—Houston [14th Dist.] 2007), rev’d on other grounds, 306 S.W.3d 308
(Tex. Crim. App. 2009). During the hearing, the trial judge took judicial notice of
the files in the record, not the factual allegations asserted within the documents
contained in those files.        Although the record contained appellant’s repeated
assertions that there was no evidence to support his conviction, such allegations
were not judicially noticed. “Assertions made by an individual, even under oath,
are not generally the type of facts capable of accurate and ready determination by a

                                              9
source whose accuracy cannot reasonably be questioned.” Id. at 324. Appellant’s
allegations are neither capable of accurate and ready determination, nor are they
from a source whose accuracy cannot reasonably be questioned. Id. Further, such
allegations do not fall within the ambit of adjudicative facts. See Tex. R. Evid.
201(b)(1)–(2). The trial court’s action of taking judicial notice of the contents of
its file therefore did not void the trial court’s order deferring adjudication. We
overrule appellant’s fourth issue.

V.     Appellant may not use his sixth habeas corpus application to relitigate
       matters from his fourth and fifth applications.
       Appellant’s final four issues refer to his fourth and fifth applications for writ
of habeas corpus—876249-D and 876249-E. The trial court dismissed application
876249-D as frivolous on October 30, 2008.                Appellant failed to appeal that
decision timely, and he unsuccessfully appealed from the judgment nunc pro tunc
on application 876249-D.          Ex parte Miller, No. 14-12-01141-CR, 2013 WL
3874983 (Tex. App.—Houston [14th Dist.] Feb. 28, 2013, no pet.) (mem. op., not
designated for publication); Ex parte Miller, No. 14-12-00434-CR, 2012 WL
6018081, at *1(Tex. App.—Houston [14th Dist.] Dec. 4, 2012, pet. ref’d) (mem.
op., not designated for publication). Appellant did not appeal the trial court’s
dismissal of application 876249-E. Appellant cannot use this appeal to challenge
issues pertaining to applications 876249-D and 876249-E. As such, we are without
authority to review these matters.5 Appellant’s fifth, sixth, seventh, and eighth
issues are overruled.

                                        CONCLUSION

       Having overruled appellant’s issues on appeal, we hold the trial court did not
       5
         Moreover, to the extent applications 876249-D and 876249-E challenge the trial court’s
judgment adjudicating appellant’s guilt and sentencing him to prison, we are without jurisdiction
to consider such challenges. See Tex. Code Crim. Proc. Ann. art. 11.07 §§ 1, 3.

                                               10
abuse its discretion when it dismissed appellant’s sixth application for writ of
habeas corpus. We modify the trial court’s October 9, 2014 order to delete the first
reference to “0876249-A” and replace it with “0876249-F,” and we affirm the
order as modified.




                                      /s/    J. Brett Busby
                                             Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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