Opinion issued August 16, 2016




                                   In The

                            Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                           NO. 01-15-00719-CR
                         ———————————
            EX PARTE LEE AUGUST LUDTKE, Appellant



                On Appeal from the 174th District Court
                        Harris County, Texas
                   Trial Court Case No. 1329042-A



                       MEMORANDUM OPINION

      Appellant, Lee August Ludtke, challenges the trial court’s order denying his

application for a writ of habeas corpus.1 In his sole issue, appellant contends that

the trial court erred in denying his requested relief, which he asserts on the ground




1
      See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (Vernon 2015).
that his trial counsel rendered ineffective assistance, from a judgment deferring

adjudication of his guilt of the state-jail-felony offense of theft of property valued at

more than $1,500.00 but less than $20,000.00.2

      We affirm the order of the trial court.

                                       Background

      In his application, appellant alleges that in August 2011, a Houston Police

Department (“HPD”) officer was dispatched to investigate a report of a burglary of

a motor vehicle.     The complainant, Lael Alexander, told the officer that two

briefcases containing “tablet and phone ‘prototypes,’” with a value of “$10,000 and

$7800,” had been stolen from the backseat of his pickup truck.3

      Subsequently, appellant purchased from Marqus Eric Narducci, whom

appellant knew as “Paul,” “two tablet computers” for $40.00. On November 30,

2011, Narducci, who unbeknownst to appellant was on community supervision for

the felony offense of theft and had worked as a confidential informant for HPD,

contacted an HPD officer to report that appellant “was in possession of ‘IPAD

prototypes’ for sale for $20 each.” Narducci then contacted appellant, stating that


2
      See TEX. PENAL CODE ANN. § 31.03(a), (b) (Vernon Supp. 2015). Under the law
      applicable at the time, theft was a state-jail felony if the value of the property stolen
      was $1,500.00 or more but less than $20,000.00. See Act of May 29, 2011, 82nd
      Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3311 (codified at TEX. PENAL
      CODE ANN. § 31.03(e)(4)(A)).
3
      In his offense report, HPD Officer J. Moses also notes that Alexander reported that
      a .40 caliber handgun was also stolen from his truck.
                                          2
“he needed the tablets back . . . and arranged to meet him to process a refund.”

However, Narducci had represented to HPD officers that he “was purchasing stolen

tablets” from appellant. At the “buy,” the officers arrested appellant after “Narducci

gave him money for the tablets.” Upon their search of appellant’s car, the officers

removed a .40 caliber handgun.

      A Harris County Grand Jury subsequently issued a true bill of indictment,

accusing appellant of committing the state-jail-felony offense of theft of property

valued at more than $1,500.00 but less than $20,000.00. And the State filed against

appellant an information, accusing him of committing the misdemeanor offense of

unlawfully carrying a weapon. Appellant hired an attorney to represent him in court.

In the theft case, the State, in exchange for his plea of guilty, offered to defer

adjudication of appellant’s guilt and place him on community supervision for two

years. After appellant accepted the State’s offer and pleaded guilty on April 23,

2012, the State dismissed the misdemeanor carrying-a-weapon case. Appellant

successfully completed his community supervision and was discharged in

September 2013.

      In March 2015, appellant filed his application for a writ of habeas corpus,

contending that he had entered his guilty plea involuntarily and unknowingly. He

argues that his trial counsel rendered ineffective assistance because, before advising

appellant to plead guilty, counsel did not properly investigate the facts or properly

                                       3
advise appellant about the applicable law and defenses. Appellant asserts that trial

counsel did not verify that the computer tablets that appellant sold to Narducci are

the same tablets that were reported stolen by the complainant in August 2011;

confirm the tablets’ value; and investigate the criminal backgrounds of the

complainant and Narducci. Appellant also asserts that trial counsel did not properly

advise him about “the proper mental state” for the theft offense. Finally, he asserts

that he would not have pleaded guilty had his trial counsel properly investigated the

case and properly advised him about the law and his defenses.

      Attached to appellant’s application is the pertinent HPD offense report. In the

report, HPD Officer J. Moses states that on August 22, 2011, he was dispatched to

the scene of a burglary of a motor vehicle. He spoke with the complainant, who told

him that he had parked his pickup truck in the parking lot of “Sam’s Boat” at about

7:50 p.m., leaving two briefcases on the back seat. When the complainant returned

to his truck at about 10:10 p.m., he saw that the door lock on the driver’s side of the

truck had been “punched out” and the briefcases and their contents had been taken

from the truck. The contents included a .40-caliber Springfield handgun and several

“prototype” computer tablets, including four tablets with a value of $10,000.00 each

and a fifth tablet with a value of $7,800.00. The complainant further told Moses that

“he felt like he was targeted because so many prototype units were stolen.”




                                       4
      HPD Officer L. Garcia supplemented the offense report on December 2, 2011.

Garcia states that on November 30, 2011, Narducci told him that he had “made

contact with [appellant] concerning the purchase of stolen property, namely iPad

notebooks,” appellant was willing to sell three iPad notebooks for $20.00 each, and

appellant “didn’t know what he had in his possession.” At that time, the “iPad

notebooks [were] worth [$10,000.00],” were “prototype[s],” and were “not for sale

and not [to be] distributed to the general public as of yet.” The next day, Narducci

advised Garcia that appellant “was selling the three iPads for $40.00 gas money”

and the “meet location” was a restaurant on the Southwest Freeway. Narducci and

HPD undercover officers, who “were looking [to] arrest [appellant] after the buy

was completed,” went to the restaurant. After Narducci returned to his car with “two

iPads” that he bought from appellant for $40.00, the HPD officers arrested appellant.

The officers then searched appellant’s car and recovered a .40-caliber Springfield

handgun with one magazine containing seven live rounds.

      Officer Garcia and HPD Officer G. Gutierrez then met with appellant at an

HPD substation. After Garcia advised appellant of his legal rights, appellant stated

that he understood his rights and “was willing to talk.” Garcia and Gutierrez told

appellant that they knew that Narducci and another individual, identified as

“Westley,” had been supplying “stolen property” to appellant. After appellant

denied “any involvement in the theft of property,” Garcia showed him “five separate

                                      5
case numbers” associated with appellant, Narducci, and Westley. Appellant then

“finally admitted to buying four laptop computer[s] from Westley and four from

Narducci.” Appellant also admitted to “having been involved in [a] theft [at] Klein

[High] School, where 21 to 27 laptops [had been] stolen.” Appellant then advised

Garcia about “other suspects that [had] provided [appellant] with stolen property,”

his willingness “to work with the police,” and his desire to avoid being incarcerated.

Garcia states that the prototype iPads, which had a value of $10,000.00 dollars each

had been “stolen from the [complainant’s] truck,” among “approx[imately] 10 iPads

in [a] briefcase.” HPD officers also arrested Narducci and Westley in the case.

      Also attached to appellant’s application are his affidavit and the affidavit of

his mother. In his affidavit, appellant testified:

            While I was in college, I would buy computers from people on
      Craigslist and then resell them on Ebay for a small profit.

             I started buying stuff from a guy I knew as Paul in early 2011.

            A couple of days before I was arrested, I went to Paul to buy
      LCD screens that he had advertised on Craigslist. He then asked if I
      wanted to buy two tablets. I wasn’t interested but he was pushy so I
      offered $40. He accepted.

             A couple of days later, Paul called and asked if he could buy the
      tablets back because he sold them too cheap to me. I said fine and
      agreed to meet him halfway between us. That’s when I was arrested in
      the parking lot.

            My parents hired Ralph Alvarez to represent me. We had few
      discussions about the case. He told me I would be convicted as a party

                                        6
       to receiving stolen goods. I did not understand that to be convicted I
       had to know the goods were stolen.

              Mr. Alvarez never showed me the offense report. He never told
       me the person I knew as Paul was [Narducci] and that he was a
       confidential informant trying to curry favor with the DA’s office to get
       out of trouble for his own theft case. I was never advised about a bias
       defense.

              I did not know the complainant . . . had a criminal history when
       I pleaded, or that my lawyer could have argued that the value of the
       tablets did not meet the felony requirement.

              We would go to court, and finally one day, my lawyer told me
       that if I did not take the deferred adjudication probation then I would
       go to jail. I was scared so I took the deal.

              I would not have pleaded guilty had I known of my possible
       defenses, including challenging the complainant’s story; pursuing a
       bias defense with Narducci; investigating the value of the tablets; and
       investigating whether the tablets in my case were even the ones taken
       from [the complainant]. I definitely would not have pleaded guilty had
       I known that I would have to know that the goods were stolen instead
       of just being in possession of stolen goods.

       In her affidavit, appellant’s mother testified that she “was at home when

[appellant] spoke with the seller about returning the tablets” and the transaction

seemed legitimate. At the time, she “thought it was weird” that the seller wanted the

tablets back, but “[i]n retrospect, it was a set-up.” Appellant’s mother “was at every

court setting,” and trial counsel “was always one of the last lawyers and then would

just reset the case” until “the prosecutor said no more resetting.” She further

testified:



                                       7
      It was communicated to [appellant] that if he did not take probation
      then he would go to prison.

            [She and appellant] did not understand that [he] had to know the
      goods were stolen. [They] thought being in possession of stolen goods
      was enough to be convicted.

             [Appellant’s] lawyer never advised [them] about any defenses to
      the case.

      Also attached to appellant’s application is a December 2, 2011 “D.A. Intake

Management System Probable Cause Information.” The fact summary within states

that appellant met with “the confidential informant” to sell him “two notebook iPads

(similar),” which appellant had in his possession valued “at $10,000.00 ea[ch] due

to them being a proto-type notebook.” The summary reveals that the informant knew

appellant from previous dealings and knew that he had previously sold stolen

electronics, including laptops, cellular telephones, and notebooks. The summary

further reveals that the informant was “working with the courts to work off his case.”

      Finally, attached to appellant’s application is certain information about

Narducci and the complainant. Information about the complainant includes copies

of website pages, which contain complaints about the complainant and his

businesses, and business records, which reflect theft and assault charges.

Information about Narducci includes a list of “Activities” from the Harris County

district clerk’s web site and an excerpt from an HPD offense report in a

motor-vehicle-theft case. The offense report, dated October 7, 2011, indicates that

                                       8
Narducci was a suspect in that case and although HPD officers had temporarily used

him as a possible information source, they would no longer use him as a resource

because he had been placed on community supervision in the case.

       No witnesses testified at the hearing on appellant’s application. However, the

trial court, without objection, admitted into evidence the affidavit of appellant’s trial

counsel. In his affidavit, trial counsel testified that in December 2011, appellant

hired him to represent him in court for the state-jail-felony offense of theft and the

misdemeanor offense of unlawfully carrying a weapon. And counsel represented

appellant through the conclusion of the plea proceeding in April 2012. Trial counsel

further testified:

              To prepare for these cases, I read the offense report and viewed
       the entire state’s file in both misdemeanor and felony court. I learned
       that the two offenses were out of the same transaction. When I first met
       with [appellant], he told me that he was very concerned about going to
       prison. I told [him] that I would do everything that I could to resolve
       the cases in a manner favorable to him.

              When I read the offense report relating to the incident, I observed
       that Officer Moses with the Houston Police Department had been
       dispatched to Sam’s Boat located at 5720 Richmond Avenue in
       Houston on August 22, 2011 regarding a burglary of a motor vehicle
       that occurred between 7:50 pm and 10:10 pm. I observed that Officer
       Moses reported that he had spoken with [the complainant] in this case.
       Officer Le reported that the Complainant had told him that 5 prototype
       tablet computers valued at $10,000 had been stolen out of the
       Complainant’s vehicle as it was parked in the parking lot of Sam’s Boat.
       I then observed that Officer Garcia, a detective in the Auto Theft
       division had been assigned the case for follow up. Officer Garcia
       documented that [Narducci] a person the Houston Police Department
       used as a confidential informant had come to him and told him that
                                        9
      [appellant] was trying to sell some stolen tablet computers. Officer
      Garcia documented that Mr. Narducci told him that [appellant] was
      trying to sell the tablets for $20 each. I further read that on December
      1, 2011 at approximately 1:00 pm, Officer Garcia received a call from
      Mr. Narducci who said [appellant] was selling 3 tablets for $40 and they
      were going to meet at the Hooters at 2500 Southwest Freeway to make
      the exchange. Officer Garcia documented that on December 2, 2011 at
      2:58 pm Mr. Narducci purchased the tablets from [appellant] for $40.
      Officer Garcia reported that [appellant] was then arrested and during a
      search of his vehicle they located a 40 caliber Springfield pistol. Officer
      Garcia then notated that he interviewed [appellant] and [he] admitted
      that he had been involved in buying stolen computers from the
      confidential informant and another individual and admitted that he was
      involved in a separate theft where 21-27 laptops were stolen from Klein
      School.

            I spoke to [appellant] about the case and he told me that he had
      purchased the tablets but had no proof of such purchase. The prosecutor
      offered [appellant] a 2 year Deferred Adjudication on the case which is
      the minimum on a felony case. I also negotiated with the misdemeanor
      prosecutor who agreed to dismiss the Unlawfully Carrying a Weapon
      case against [appellant] in exchange for a plea on the felony case. I told
      [appellant] that he could accept the prosecutor’s offer or have a trial to
      the Judge or the Jury. [Appellant] agreed to accept the prosecutor’s
      offer of Deferred Adjudication rather than take a risk going to trial.
      [Appellant’s] plea of guilty was made knowingly and voluntarily.

(Emphasis added.)

      The trial court denied appellant’s requested habeas corpus relief and signed

findings of fact and conclusions of law. It found, based on trial counsel’s “credible

affidavit,” that he had “conducted an investigation that included reviewing the

State’s file and the offense report”; he had “discussed the case and the applicable

law with [appellant]”; appellant’s “plea was voluntarily and knowingly given”; and

trial counsel “believe[d] that [appellant’s] plea was voluntarily and knowingly
                                      10
given.” The trial court further found that it had properly admonished appellant “as

to the charge against him, the range of punishment, and the consequences of his

plea.” Based on its fact findings, the trial court concluded:

      1. [Appellant] fails to show that counsel’s conduct fell below an
      objective standard of reasonableness and that, but for trial counsel’s
      alleged deficient conduct, there is a reasonable probability that the
      result of the proceeding would have been different.

      2. The totality of the representation afforded [appellant] was sufficient
      to protect his right to reasonably effective assistance of counsel in the
      primary case[.]

      3. [Appellant] fails to show that his initial guilty plea was unlawfully
      induced, made involuntarily, or made without an understanding of the
      nature of the charge against him and the consequences of his plea in
      accordance with [TEX. CODE CRIM. PROC. ANN. art. 26.13].

      4. [Appellant] fails to overcome the presumption that his initial guilty
      plea was knowingly and voluntarily made.

      5. In all things, [appellant] has failed to demonstrate that his conviction
      was improperly obtained[.]

                                 Standard of Review

      An applicant seeking post-conviction habeas corpus relief must prove his

claims by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865,

870 (Tex. Crim. App. 2002). In reviewing a trial court’s decision to deny habeas

corpus relief, we view the facts in the light most favorable to the trial court’s ruling.

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 336 (Tex. Crim. App. 2007). We

                                       11
afford almost total deference to the court’s findings of fact that are supported by the

record, especially when the trial court’s fact findings are based upon an evaluation

of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim.

App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)).

We afford the same level of deference to the trial court’s rulings on “applications of

law to fact questions” if the resolution of those questions turn on an evaluation of

credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. In such instances,

we use an abuse-of-discretion standard. See Ex parte Garcia, 353 S.W.3d 785, 787

(Tex. Crim. App. 2011). However, if the resolution of those ultimate questions turns

on an application of legal standards absent any credibility issue, we review the

determination de novo. See Ex parte Peterson, 117 S.W.3d at 819. We will affirm

the trial court’s decision if it is correct on any theory of law applicable to the case.

Ex parte Primrose, 950 S.W.2d 775, 778 (Tex. App.—Fort Worth 1997, pet. ref’d).




                                       12
                        Ineffective Assistance of Counsel

      In his sole issue, appellant argues that the trial court erred in denying him

habeas corpus relief because, based on his trial counsel’s ineffective assistance, he

entered his plea unknowingly and involuntarily. He asserts that his trial counsel

advised him to plead guilty without conducting a reasonable investigation, i.e.,

determining whether the computer tablets that he sold to Narducci are the same

tablets that were reported stolen by the complainant; confirming the value of the

tablets; and investigating the criminal backgrounds of the complainant and Narducci.

And he asserts that “[t]he evidence that was not investigated would have changed

the outcome” of his decision to plead guilty.

      To be valid, a plea must be entered voluntarily, knowingly, and intelligently.

TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2015); Fuller v. State,

253 S.W.3d 220, 229 (Tex. Crim. App. 2008). A plea is not entered voluntarily and

knowingly if made as the result of ineffective assistance of counsel. Ulloa v. State,

370 S.W.3d 766, 771 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

      To prove a claim of ineffective assistance of counsel, appellant must show

that (1) his trial counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

                                      13
(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance,

we look to the totality of the representation to determine the effectiveness of counsel,

indulging a strong presumption that counsel’s performance falls within the wide

range of reasonable professional assistance or trial strategy. See Robertson v. State,

187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). Appellant has the burden to

establish both prongs by a preponderance of the evidence. Jackson v. State, 973

S.W.2d 954, 956 (Tex. Crim. App. 1998). “An appellant’s failure to satisfy one

prong of the Strickland test negates a court’s need to consider the other prong.”

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

      In regard to guilty pleas, the focus of our prejudice inquiry is “on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). Appellant

must show that (1) his trial counsel’s advice to plead guilty was not within the wide

range of competence required of a criminal defense attorney and (2) there is a

reasonable probability that, but for counsel’s errors, he would have pleaded “not

guilty” and insisted on a trial. Id.; Lopez v. State, 428 S.W.3d 271, 278 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d) (citing Ex parte Morrow, 952 S.W.2d 530, 536

(Tex. Crim. App. 1997)).

                                       14
      Trial counsel had a duty to provide advice to his client about what plea to enter

and that advice should have been informed by an adequate investigation of the facts

of the case or based on a reasonable decision that an investigation was unnecessary.

Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) (citing Ex parte

Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009); Goodspeed v. State, 187

S.W.3d 390, 392–93 (Tex. Crim. App. 2005)); see Strickland, 466 U.S. at 691, 104

S. Ct. at 2066) (stating trial counsel’s duty is “to make reasonable investigations or

to make a reasonable decision that makes particular investigations unnecessary”).

Thus, counsel had an obligation to conduct a legal and factual investigation and seek

out and interview witnesses. See Ex parte Welborn, 785 S.W.2d 391, 394 (Tex.

Crim. App. 1990). However, “[a] claim, for ineffective assistance based on trial

counsel’s general failure to investigate the facts of the case fails absent a showing of

what the investigation would have revealed that reasonably could have changed the

result of the case.” Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th

Dist.] 2009, pet. ref’d) (citing Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App.

2007)).

      Here, the evidence supports the trial court’s findings and conclusions that trial

counsel conducted an investigation that included reviewing the State’s file and the

offense report. Trial counsel’s affidavit testimony reflects that he spoke with

appellant about the case, reviewed the State’s files in the misdemeanor and felony

                                       15
cases, and read the HPD offense report. The offense report indicates that the value

of the computer tablets was within the range for the state-jail-felony offense of theft

and they were the ones stolen from the complainant’s truck in August 2011. The

report further indicates that appellant, when arrested, admitted that he knew

Narducci, previously had received stolen laptops from him and a person identified

as “Westley,” and identified others who had provided him with stolen property.

Additionally, appellant admitted to his involvement in a theft of laptops from Klein

High School. Further, the record reveals that trial counsel actually reviewed the

State’s file, and the State’s “Probable Cause Information” indicates that Narducci

was “working with the courts to work off his case.”

      Appellant argues that trial counsel did not properly advise him about the law

applicable to his case because, “[t]o be convicted under a theory of theft for

possessing stolen goods, a defendant must know the goods are stolen,” and he “did

not know the goods were stolen” and did not understand that to be convicted he had

to know that they had been stolen. Appellant asserts that he pleaded guilty only

because counsel misadvised him about the applicable law. And appellant, in his

affidavit, testified that although his trial counsel advised him that he “would be

convicted as a party to receiving stolen goods,” he “did not understand that to be

convicted” he “had to know the goods were stolen.” The trial court found and

concluded that trial counsel did discuss the case and applicable law with appellant

                                      16
and appellant failed to show that he pleaded guilty “without an understanding of the

nature of the charge against him and the consequences of his plea.”

      Appellant’s argument is premised on his assertion that he did not know that

the tablets that he bought from, and sold back to Narducci, were stolen. A person

commits the offense of theft “if he unlawfully appropriates property with intent to

deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp.

2015). “Appropriate” means “to acquire or otherwise exercise control over property

other than real property.” Id. § 31.01(4)(B). Appropriation of property is unlawful

if (1) it is without the owner’s effective consent, or (2) the property is stolen and the

actor appropriates the property knowing it was stolen by another. Id. § 31.03(b)(1)–

(2). “Knowledge that property was stolen can be shown by circumstantial evidence.”

Uyamadu v. State, 359 S.W.3d 753, 760 (Tex. App.—Houston [14th Dist.] 2011,

pet. ref’d) (citing Chudleigh v. State, 540 S.W.2d 314, 317 (Tex. Crim. App. 1976)).

Again, the HPD offense report reveals that appellant admitted that he knew

Narducci, had previously received stolen laptops from him and a person identified

as “Westley,” identified others who had provided him with stolen property, and had

previously been involved in a theft of laptops from Klein High School. In his

affidavit, appellant’s trial counsel makes specific reference to his review of this

evidence. And from this circumstantial evidence, it can reasonably be inferred that




                                       17
appellant knew that the tablets that he bought from, and sold back to, Narducci were

stolen.

          Moreover, the record presented does not include the indictment or other

charging instrument and, thus, does not show what specific elements of theft were

alleged. See Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992) (stating,

to plead theft, State only has to allege accused appropriated property unlawfully with

intent to deprive owner of it). Further, there is no evidence in the record that trial

counsel misadvised appellant as to the elements of the offense of theft or “the proper

mental state” for the charge. As noted above, the record does demonstrate that trial

counsel in fact reviewed the HPD offense report, which includes not only the facts

of appellant’s arrest, but also his discussion with, and admissions to, the HPD

officers. And appellant’s trial counsel discussed those facts with appellant.

          Considering the evidence in the light most favorable to the trial court’s ruling

and deferring to the trial court’s findings of fact supported by the record, we

conclude that appellant has not met the first prong of Strickland. Accordingly, we

hold that the trial court did not err in denying appellant’s requested habeas corpus

relief.

          We overrule appellant’s sole issue.




                                          18
                                 Conclusion

      We affirm the order of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

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




                                      19
