                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-16-00254-CR


EX PARTE RACHAEL ANN
SHERIDAN




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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2010-2104-A

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                       MEMORANDUM OPINION1

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      In one issue, Appellant Rachael Ann Sheridan appeals the denial of her

application for writ of habeas corpus.   See Tex. Code Crim. Proc. Ann. art.

11.072 (West 2015). We affirm.




      1
      See Tex. R. App. P. 47.4.
                                    Background

I. Appellant’s relationship and the underlying charges

      Appellant testified that she fell in love with “Ryan Webb” and married him,

only to discover that he had deceived her into believing he was someone he was

not. As the record reveals, this was not a figurative claim. It was literally true.

      To begin with, he was not Ryan Webb.             His real name was Joshua

Mitchell. And although the record is unclear as to his true occupation, he also

was not a member of the “International Investigation Agency” (IIA), a “black ops,”

top-secret government agency, as he had claimed.

      This much was revealed to Appellant on August 24, 2010, the night that

Mitchell was arrested, after Plano police officers found guns, explosives, and

bomb-making materials in the bed of the family pickup that Appellant, Mitchell,

and their children occupied. Along with the firearms and ammunition the police

officers discovered, they also found containers of “metal shavings and BBs,

bottles of smokeless black powder, metal pipes with threaded ends, end caps for

the pipes, several containers with unknown powders, 2 hollowed out grenades

and a blasting cap.” According to a police report, as the officers uncovered the

explosives, Appellant’s six-year-old daughter pointed to the bottles of gunpowder,

told an officer, “[T]hose are my daddy’s explosives,” recalled how Mitchell had




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once thrown them in a pool while she was present, and demonstrated how they

had exploded by “thr[owing] up her hands as if she was showing an explosion.” 2

      The Bureau of Alcohol, Tobacco, and Firearms (ATF) was called to the

scene because of the nature of the items found. Police reports also indicate that

at the time of his arrest Mitchell told the police that he worked for “Black Ops,” did

“top secret” work that he could not discuss, that he “had contacts around the

world,” and that he did “government work.”

      Appellant was not arrested at the scene but voluntarily went to the police

department with her two children. After both she and her six-year-old provided

statements to Beesley, Appellant’s two children were placed in the custody of

CPS. Appellant was charged with two counts of endangering a child, see Tex.

Penal Code Ann. § 22.041(c) (West 2011), and placed in jail.3 The Department

of Family and Protective Services (the Department) also initiated proceedings to

terminate the parental rights of Appellant and Mitchell, and on September 3,

2010, Appellant was provided a service plan to complete.

      After it became apparent that Appellant could not successfully complete

the requirements of her service plan to avoid the termination of her parental

rights while incarcerated, Appellant and her attorney came up with a “plan” to get

      2
        Later that evening, when asked by Child Protective Services (CPS)
investigator Jamie Beesley what devices Mitchell had used to “blow things up,”
the child drew a picture of what appeared to be a grenade.
      3
       According to Appellant, it was not until they were arrested that she
learned Mitchell’s name was not Ryan Webb.


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her out of jail. First, they tried to get Appellant’s bond reduced. But they were

unsuccessful. Then they tried to find someone who could pay her bond. This

proved unsuccessful as well. So, they tried to set a jury trial on the criminal

charges as soon as possible.

      According to Appellant, the first jury trial setting available was January 31,

2011, by which time she would have been in jail for five months without the ability

to work on her service plan in the interim. Unsatisfied with the option of waiting

in jail for a January 2011 trial, Appellant “instructed her attorney to work on a plea

bargain that would get her out of jail as soon as possible.”

      On December 2, 2010, Appellant entered a plea of guilty, was convicted of

both counts of endangering a child, and was sentenced to two years’

confinement. The trial court suspended imposition of her sentence, however,

and placed her on five years’ community supervision.           The plea paperwork

signed by Appellant expressly stated that she had been advised of her rights,

including being warned of the consequences of a guilty plea and her right to a

jury trial, that her plea was “made freely and voluntarily and [was] not influenced

by any consideration of fear or any persuasion or any delusive hope of pardon”

and that the waivers, consents, agreements, and statements made in the

paperwork had been explained to her by an attorney and were made “voluntarily,

knowingly, and intelligently.”   Likewise, the judgment of conviction recited as

follows:




                                          4
      Defendant waived the right of trial by jury and entered the plea
      indicated above. The Court then admonished Defendant as required
      by law. It appeared to the Court that Defendant was mentally
      competent to stand trial, made the plea freely and voluntarily, and
      was aware of the consequences of this plea.

      The plan worked.     On September 26, 2011, the trial court terminated

Mitchell’s parental rights but did not terminate Appellant’s, instead agreeing with

the Department’s recommendation to return the children to Appellant. And on

June 26, 2013, the trial court granted early termination of Appellant’s community

supervision.

II. Appellant’s application for writ of habeas corpus

      Appellant filed an application for writ of habeas corpus under article 11.072

in April 2016 seeking relief from her conviction for child endangerment. See Tex.

Code Crim. Proc. Ann. art. 11.072. In it, she argued that she was innocent and

that she pleaded guilty under duress “so that she could be released from jail

more quickly than if she had awaited trial.” In essence, Appellant argued that her

inability to procure pretrial release from jail, when combined with the immediate

need to begin working on the service plan to avoid termination of her parental

rights and the impossibility of completing the service plan while incarcerated,

created a circumstance of duress which led to her plea of guilt.

      In Appellant’s application for writ of habeas corpus, she placed the blame

for the child endangerment charges on Mitchell.            Appellant denied any

knowledge that he had placed weapons and materials that could be used to

construct an explosive device in the pickup. Appellant further pointed to the


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following conclusion of law entered by the trial court in the termination

proceeding:

      Clear and convincing evidence shows that no reasonable juror
      would have convicted [Appellant] of child endangerment in light of
      the overwhelming affirmative evidence of her innocence at trial.
      Clear and convincing evidence shows that termination of the parent-
      child relationship between [Appellant] and [her children] is not in the
      best interest of the children.

Appellant attached the complete findings of fact and conclusions of law entered

in the termination proceeding to her application, as well as the judgment of

conviction, an affidavit by the attorney ad litem for the children in the termination

proceeding that expressed his opinion that Appellant “had no knowledge of the

facts which brought the children into care, being that the father of the younger

child was portraying himself as a ‘Special Agent’ and that he had duped not only

[Appellant], but many law enforcement agencies,” and the opinion of this court

affirming the termination of Mitchell’s parental rights.

III. The State’s response

      In answering the application for writ of habeas corpus, the State argued

that (1) Appellant did not show duress, but rather that she made a conscious

choice to enter a plea of guilty to benefit her chances of avoiding termination of

her parental rights, (2) Appellant did not present any new evidence in support of

her argument that she was innocent of the endangerment charges, and (3) there

was sufficient evidence to support Appellant’s conviction.        In support of its

arguments, the State provided (a) the plea paperwork signed by Appellant, (b) a



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police report from the night of Appellant and Mitchell’s arrests, (c) the report of

the detective that investigated the endangerment charges, and (d) the indictment

of child endangerment charges against Appellant.

IV. The trial court’s denial

      On May 6, 2016, the trial court denied Appellant’s request for relief without

an evidentiary hearing. The trial court adopted the State’s proposed findings of

fact and conclusions of law, which included the following findings:

            1. Applicant judicially confessed and pleaded guilty to two
      counts of endangering a child in return for a sentence of two years’
      confinement probated for five years with no fine.

             2. After she was indicted, Applicant and her criminal attorney
      came up with the following plan in order to try to start her services in
      her parental termination case: try to get a bond reduction; try to get
      someone to help her pay her bond; and then set the case for a jury
      trial.

              3. Applicant was unable to reduce or post her bond and the
      first jury trial date was January 31, 2011.

            4. Applicant claims the trial could not have started on that
      date, but provides no evidence supporting her assertion.

              5. Applicant complains that she would have “lost precious
      time to work on her service plan,” but provides no evidence that her
      parental rights would have been terminated had she been confined
      for five more months.

             6. Applicant does not bring forth any newly discovered
      evidence—her statements in support of her application were known
      to her at the time she pleaded guilty.

            7. On the night of the offense Applicant claimed there were no
      guns in the vehicle, then said they were in the glove box, but one
      gun was found in plain view and the other was in a backpack.



                                         7
           8. Applicant claims she did not know her husband J.M.’s real
      name until after she was arrested, but she admitted she previously
      saw a document with a different name for him, she admitted she
      knew his family had a different last name, and Applicant’s mother
      thought J.M. was using a false name.

            9. Applicant claimed she did not know of J.M.’s probation in
      North Carolina, first saying they had been together for three years,
      then saying they had been together for four years, but then admitted
      she might have met him just after he was released from
      incarceration in North Carolina.

              10. Applicant considered herself and J.M. ‘hobbyists,’ knew
      J.M. was fascinated with gunpowder and homemade rockets, and
      testified that J.M. started ‘amassing’ the explosive materials found in
      the truck in the past six months.

             11. Considering Applicant’s knowledge of J.M.’s explosive
      materials, and considering she, J.M., and her two children were
      living a nomadic lifestyle, it is reasonable to believe that Applicant
      would have knowledge of J.M.’s explosives in the back of the truck.

             12. Applicant’s older daughter, A.S., was familiar with J.M.’s
      explosives that were in the back of the vehicle to the point she could
      identify them to law enforcement, and recalled witnessing J.M. set
      off an explosive in the backyard of their old house creating a ‘boom’
      while Applicant was inside the house.

             13. Applicant told Detective Salazar that she knew it was
      ‘stupid’ to drive around with the explosives in the back of the truck
      because it was dangerous and could explode.

           14. Applicant consistently admitted that she at least knew that
      gunpowder, which is an explosive material, was in the vehicle.

      Among its conclusions of law, the trial court concluded that (1) the

application could be resolved through the exhibits, affidavits, and declarations

offered by Appellant and the State and did not require a hearing, (2) Appellant’s

guilty plea was a “knowing, intelligent act done with sufficient awareness of the

relevant circumstances and likely consequences,” (3) Appellant appeared to


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make a Herrera-type4 claim of actual innocence but presented no newly

discovered evidence, (4) Appellant did not show by clear and convincing

evidence that no reasonable juror would have convicted her of child

endangerment so as to support a claim of actual innocence, (5) “[t]he findings in

the parental termination suit should have no bearing in this collateral attack on a

criminal case in a different trial court,” (6) nothing presented to the trial court

nullified the presumption that Appellant’s conviction was valid, and (7) Appellant

had not carried her burden of proof to warrant relief.

                                    Discussion

I. Standard of Review

      In reviewing a trial court’s denial of a habeas corpus application under

article 11.072, we review the evidence in the light most favorable to the habeas

court’s ruling and afford great deference to the habeas court’s findings of fact and

conclusions of law that are supported by the record. Ex parte Mello, 355 S.W.3d

827, 832 (Tex. App.—Fort Worth 2011, pet. ref’d).          This deferential review

applies even when the findings are based on affidavits rather than live testimony.

Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006). Absent an

abuse of discretion, we must affirm a habeas court’s decision to deny the relief

requested in the habeas corpus application. Mello, 355 S.W.3d at 832.


      4
        See Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993). Appellant’s
brief denies having made any such claim of actual innocence based upon newly-
discovered evidence. We therefore will not address any such claim.


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II. Trial court’s failure to conduct a hearing

      Article 11.072 provides that the trial court “may order affidavits,

depositions, interrogatories, or a hearing.”     Tex. Code Crim. Proc. Ann. art.

11.072 § 6(b) (emphasis added). We have previously held that nothing in article

11.072 requires the trial court to conduct a hearing. Ex parte Cummins, 169

S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.); see also Ex parte

Gonzales, No. 13-11-00135-CR, 2012 WL 2928924, at *2 (Tex. App.—Corpus

Christi July 19, 2012, pet. ref’d) (mem. op., not designated for publication)

(holding evidentiary hearing was not required in article 11.072 proceeding

alleging that guilty plea was made involuntarily); Ex parte Franklin, 310 S.W.3d

918, 922–23 (Tex. App.—Beaumont 2010, no pet.) (collecting cases holding a

hearing was not required in article 11.072 proceeding presenting a claim of

ineffective assistance of counsel).5 In so holding, we explained,

      While section 6(b) clearly indicates that in making its determination
      the trial court may order affidavits, depositions, interrogatories, or a
      hearing, it does not require that a trial court do so. See [Tex. Code
      Crim. Proc. Ann. art. 11.072 § 6(b)] In addition, we find nothing in
      article 11.072 prohibiting the trial court from considering evidence
      filed with the application or with the State’s response. See id. art.

      5
        Some of our sister courts have held that an evidentiary hearing is required
under article 11.072 if the habeas applicant makes a claim of actual innocence
on the basis of newly-discovered evidence. See Ex parte Gonzalez, 323 S.W.3d
557, 559 (Tex. App.—Waco 2010, pet. ref’d); Franklin, 310 S.W.3d 918 at 923
(holding additionally that a hearing is required for a claim of actual innocence if
the trial judge considering the habeas application is not the same judge that
presided over the original trial). This caselaw is inapplicable here as Appellant
acknowledges that she did not make a claim of actual innocence based on
newly-discovered evidence.


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      11.072. In that regard, section 7 of article 11.072 refers to the trial
      court’s consideration of “documents attached to the application,”
      albeit in determining if the application is frivolous, but that language
      combined with the permissive language found in section 6 leads us
      to conclude that the legislature did not intend to prohibit the trial
      court from considering such evidence without [a] hearing. See id.
      art. 11.072 §§ 6, 7.

Cummins, 169 S.W.3d at 757. Appellant has not persuaded us to reconsider our

prior holding. Because the trial court did not abuse its discretion by not holding

an evidentiary hearing, we overrule this part of Appellant’s sole issue.

III. Burden of proof

      The trial court was presented with documents by both sides to consider in

ruling on Appellant’s application. In her brief, Appellant complains of the State’s

provision of “limited information from which the court could make a decision,” and

particularly its alleged failure to provide testimony from the termination

proceeding “that validates Applicant’s application for writ of habeas corpus.”

Assuming this general complaint constitutes an attempt on Appellant’s part to

raise this issue as an issue on appeal, Appellant’s argument misconstrues the

applicable burden.

      Once the State presented evidence that Appellant was admonished in

writing as to her rights and the consequences of her plea—which it did, in the

form of the “Waiver of Jury” form and the “Waiver and Judicial Confession” form

signed by Appellant—it made a prima facie showing that Appellant’s guilty plea

was entered knowingly and voluntarily. See Martinez v. State, 981 S.W.2d 195,

197 (Tex. Crim. App. 1998). Thereafter, the burden—and a heavy one at that—


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shifted to Appellant to defeat the presumption that her plea was made voluntarily.

See Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no

pet.); see also State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013)

(“When a person attacks the validity of his prior guilty plea as that plea is

reflected in the written judgment, he bears the burden of defeating the normal

presumption that recitals in the written judgment are correct.”).

      The burden was not on the State to provide testimony from the termination

proceeding. If Appellant believed such testimony would assist her in proving the

involuntary nature of her plea, she bore the burden of producing it. And while

she provided us with such testimony on appeal, she has offered no explanation

for her failure to provide the trial court with this evidence. Absent “compelling

and extraordinary circumstances” we cannot consider evidence that was not first

submitted to the trial court. See Ex parte Whisenant, 443 S.W.3d 930, 932 (Tex.

Crim. App. 2014) (holding that supplemental evidence supporting an article 11.07

application for writ of habeas corpus should be filed in the trial court, not the

reviewing court).6 Because Appellant has made no showing of compelling or

extraordinary circumstance, we therefore decline to consider this evidence.




      6
        See also Ex parte Simpson, 136 S.W.3d 660, 669 (Tex. Crim. App. 2004)
(noting that although the reviewing court in a habeas proceeding “might have the
implicit authority to consider evidentiary materials filed directly with [the reviewing
court], normally the jurisprudential considerations of efficiency, effectiveness, and
comity to the habeas court counsel against such consideration”).


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Assuming Appellant’s complaint was properly raised and adequately briefed, we

overrule this part of her sole issue.

IV. Voluntariness of Plea

      The remainder of Appellant’s arguments attack the factual basis of

individual findings by the trial court in broad terms and without support in the

record or reference to applicable caselaw.      Even assuming these arguments

were adequately briefed, none of the evidence shows that Appellant pleaded

guilty unknowingly or involuntarily—in fact, the evidence supports the opposite

conclusion.

      No doubt Appellant was in a predicament. If she did not timely complete

her service plan, she risked termination of her parental rights.       Continued

incarceration would impair—perhaps prevent—her from completing the service

plan. She had exhausted her options to obtain pretrial release. And although

her case was set for trial in January, there was no guarantee that it would

actually go to trial as scheduled. Appellant’s options were limited and imperfect.

But the evidence shows that she and her attorney considered her options, and

she ultimately chose to plead guilty to the charges.

      Appellant’s decision was calculated to achieve the best result in a grim

situation. The evidence shows that in reaching her decision, she considered all

options and circumstances known to her at the time. The evidence also shows

that her decision to plead guilty was made with awareness of the direct

consequences of her plea. As the court of criminal appeals has explained,


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       [A guilty plea] cannot be truly voluntary unless the defendant
       possesses an understanding of the law in relation to the facts. This
       means that the defendant must have sufficient awareness of the
       relevant circumstances. The standard is whether the plea is a
       voluntary and intelligent choice among the alternative courses of
       action open to the defendant.

Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014) (internal citations

omitted). Neither her circumstances nor her options were ideal, but the evidence

shows that Appellant was aware of the possible ramifications of a guilty plea and

that she made a voluntary and intelligent choice considering her options. See Ex

parte Palmberg, 491 S.W.3d 804, 809 (Tex. Crim. App. 2016) (“The reality is that

every defendant who enters a guilty plea does so with a proverbial roll of the

dice.”).

       Viewing the evidence in the light most favorable to the trial court’s

determination, we hold that the trial court did not abuse its discretion by denying

Appellant’s application for writ of habeas corpus. See, e.g., Ex parte Parker, No.

09-06-00077-CR, 2006 WL 1965666, at *5 (Tex. App.—Beaumont July 12, 2006,

no pet.) (mem. op., not designated for publication) (holding appellant’s

allegations of duress caused by jail conditions and alleged harassment by

immigration agent did not support involuntary plea claim); Quintanilla v. State,

No. 04-00-00197-CR, 2001 WL 220054, at *2 (Tex. App.—San Antonio Mar. 7,

2001, pet. ref’d) (not designated for publication) (holding appellant did not show

his plea was rendered involuntary by his fear of not being able to see his




                                        14
daughter again or alleged duress imposed by attorney). We therefore overrule

the remainder of Appellant’s sole issue.

                                   Conclusion

      Having overruled Appellant’s sole issue, we affirm the trial court’s denial of

Appellant’s application for writ of habeas corpus.



                                                     BONNIE SUDDERTH
                                                     JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 27, 2017




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