

Affirmed and Opinion filed April 5, 2011.
 
In The
 
Fourteenth Court of
Appeals
___________________
 
NO. 14-10-00102-CR
___________________
 
Ricardo Ulloa, Appellant
 
V.
 
The State of Texas, Appellee
___________________
 
NO. 14-10-00101-CR
___________________
 
ex parte ricardo ulloa, Appellant
 

 

 
On
Appeal from the 351st District Court
Harris County,
Texas

Trial Court Cause Nos. 699882, 699882-A
 

 
 
OPINION
Ricardo Ulloa pleaded “no contest” to
aggravated sexual assault and received eight years’ deferred adjudication.  The
State later filed a motion to adjudicate guilt.  Ulloa filed a motion to
withdraw his “no contest” plea and an application for writ of habeas corpus. 
The trial court denied both and sentenced Ulloa to fifteen years’
imprisonment.  Ulloa appeals both the motion and the application on the grounds
that the evidence is factually insufficient to support the trial court’s denial
of the motion to withdraw his “no contest” plea because the plea was
involuntary due to ineffective assistance of counsel.  He also argues, in the
alternative, that the evidence is factually insufficient to support the trial
court’s denial of habeas-corpus relief because the plea was involuntary due to
ineffective assistance of counsel.  We affirm.  
I
Ricardo Ulloa was indicted on August 2, 1995, for
aggravated sexual assault.  He pleaded “no contest” in exchange for eight
years’ deferred-adjudication probation.  The terms of Ulloa’s probation required
him to attend sex-offender counseling through Baylor College of Medicine. 
Ulloa, who maintained his innocence, initially attended counseling but was
discharged because he refused to admit his guilt.  On June 5, 1996, the court
modified Ulloa’s probation conditions to allow him to attend a different
counseling program, but he was again discharged for his refusal to admit to the
assault.  Ulloa shortly thereafter fled Houston to Columbus, Ohio, where he
changed his name. 
            The State filed a motion to adjudicate guilt in May of 1997,
alleging that Ulloa had violated several conditions of his probation.  An
amended motion was filed in 2000 in which the State alleged that Ulloa had
failed to register as a sex offender.  Ulloa was arrested on October 18, 2009,
and subsequently filed a motion to withdraw his “no contest” plea as well as an
application for writ of habeas corpus.  Ulloa claimed his “no contest” plea was
involuntary because his attorney failed to advise him that he would be
discharged from sex-offender counseling and have his probation revoked if he
did not admit guilt as part of the counseling program.  Ulloa claims if he had
known of this requirement he would have opted to take his case to trial.   
The court held a joint evidentiary hearing on both
the motion and application.  Ulloa testified that his attorney, Juan Contreras,
visited him while he was in a holdover cell following his arrest.  Ulloa
testified he rejected the State’s initial offer of prison time, after which
Contreras communicated to him that the State would offer ten years’ deferred-adjudication
probation if he pleaded “guilty,” and that he would immediately be released
from jail.  Ulloa testified he told counsel he would not plead “guilty.” 
Counsel again spoke to the prosecutor and then communicated to Ulloa that the
State agreed he could plead “no contest” in exchange for eight years’ deferred-adjudication
probation.  Ulloa testified he asked Contreras what “no contest” meant and that
Contreras told him “[t]hat it’s like not guilty” and that Ulloa would “not get
convicted.”  Ulloa testified counsel did not inform him he would have to admit
guilt at sex-offender counseling.  
Contreras testified that he communicated each of the
State’s offers to Ulloa but did not remember if he told Ulloa he could go home
immediately after pleading “guilty.”  Contreras confirmed Ulloa told him he
would not plead “guilty” to a crime he did not commit.  Contreras testified he
did not recall a specific question from Contreras as to what a “no contest”
plea entailed, but denied he would have answered such a question by saying it is
like a “not guilty” plea or that Ulloa would not be convicted.  Contreras
testified he could not remember the specifics of his conversation with Ulloa
regarding sex-offender counseling, but said it is his practice to explain to
clients in Ulloa’s situation that sex-offender counseling entails admitting
guilt, sometimes in a group setting.  Specifically, Contreras testified, “I
give special attention to the fact that you’re going to be asked to admit what
you did and maybe even asked for details . . . .”  
The trial court denied both the motion and the
application, stating:
First of all, I want to make clear that in this situation
in considering all the evidence presented, including the file and all the
testimony—and, honestly, even if I believed every word the defendant said, I’m
not sure you’re entitled to relief.  But having said that, I don’t believe
everything the defendant says.  In fact, I think he was less than credible on
the stand and less than credible in his writ.  Be that as it may, I think the
evidence that is before me indicates that the plea was freely and voluntarily
given and that what happened was buyer’s remorse, basically, is after the fact,
he decided he didn’t like what he got and he decided to leave town.  So
whatever the decision was, why ever the decision was made, that I believe that
he understood what he was getting himself into.  I believe the Judge
appropriately admonished him.  I believe his lawyer appropriately admonished
him.  I believe the probation officer appropriately admonished him and that he
knew exactly what he was getting himself into and just did not like it once he
got into it.  
Ulloa has appealed the denial
of both the motion and application, arguing the evidence is factually
insufficient to support the trial court’s denial of the motion to withdraw the “no
contest” plea and, in the alternative, the denial of habeas-corpus relief,
because the plea was involuntary as a result of ineffective assistance of
counsel.    
II
            We first consider
Ulloa’s direct appeal of the trial court’s denial of the motion to withdraw
Ulloa’s “no contest” plea.  In his brief, Ulloa acknowledges we must consider
his application for habeas-corpus relief only if we determine Ulloa’s direct
appeal is not proper.
Under Texas law, a judge may defer the adjudication
of guilt of a particular defendant and place him on “community supervision” (i.e.,
probation) if he pleads “guilty” or “no contest.”  Tex. Code Crim. Proc. art.
42.12, § 5(a).  If such a defendant wishes to raise issues related to his plea
or deferred adjudication, he must do so on direct appeal from the
deferred-adjudication order immediately after it is imposed; he may not wait
until after he violates the terms of his probation and is found guilty.  See
Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); Hanson
v. State, 11 S.W.3d 285, 288 (Tex. App.—Houston [14th Dist.] 1999, pet.
ref’d).  
Here, Ulloa pleaded “no contest” and received
deferred adjudication probation in January 1996.  Fourteen years later, Ulloa
was arrested, and only then filed a motion to withdraw his plea, which the
trial court denied on the same day his guilt was adjudicated and his probation
was revoked.  Ulloa could have filed a motion to withdraw his “no contest” plea
following his original plea hearing; his failure to do so precludes us from now
hearing the merits of his complaint on direct appeal.  Accordingly, we do not
address the merits of Ulloa’s direct appeal from the trial court’s denial of
his motion to withdraw the plea.  See Manuel, 994 S.W.2d at 662;
Hanson, 11 S.W.3d at 288.  
III
Having determined we may not consider Ulloa’s direct
appeal of the trial court’s denial of his motion to withdraw his “no contest”
plea, we turn to his appeal from the trial court’s denial of his application
for habeas-corpus relief.  A defendant may apply for a writ of habeas corpus
seeking relief from an order of community supervision if direct appeal is not
available under article 44.02 of the Code of Criminal Procedure and Rule 25.2
of the Texas Rules of Appellate Procedure.  See Tex. Code Crim. Proc.
art. 11.072, §§ 1, 3(a); Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim.
App. 2001).  To apply for relief, a defendant must be, or have been, on
community supervision and challenge the legal validity of the order in which
community supervision was imposed or the conditions of community supervision.  See
Tex. Code Crim. Proc. art. 11.072, § 2(b).  Jurisdiction is conferred upon
this court to hear an appeal of such an application.  See id. § 8. 
Because Ulloa challenges the order in which community supervision was imposed
by, in essence, challenging the voluntariness of his plea, and because we have
already determined Manuel bars direct appeal of his claim with no
exception afforded by article 44.02 of the Code of Criminal Procedure or Rule
25.2 of the Texas Rules of Appellate Procedure, we proceed to consider his
appeal of the trial court’s denial of his application for habeas-corpus
relief.  
The applicant for a writ of habeas corpus has the
burden of proving his allegations by a preponderance of the evidence.  Kniatt
v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).  In reviewing the
trial court’s ruling on a habeas-corpus application, we must review the record
evidence in the light most favorable to the trial court’s ruling, and we must
uphold that ruling absent an abuse of discretion.  Id.  We decide
whether a trial court abused its discretion by determining whether the court
acted arbitrarily or unreasonably.  Lyles v. State, 850 S.W.2d 497, 502
(Tex. Crim. App. 1993).  However, we will defer to and accept a trial judge’s
findings of fact and conclusions of law when they are supported by the record. 
Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).  
The basis for Ulloa’s application for habeas-corpus
relief is that his “no contest” plea was involuntary because his trial counsel
failed to inform him that sex-offender counseling would require him to admit
his guilt.  Ulloa maintains he would have chosen to go to trial if he had known
of this condition on his deferred-adjudication probation.  Furthermore, because
he has maintained his innocence, Ulloa further argues it is incomprehensible
that he would have accepted the plea bargain had he been informed of the
consequences of denying guilt during sex-offender counseling.  Accordingly,
Ulloa argues the evidence is factually insufficient to support the trial court’s
denial of habeas-corpus relief because the court’s credibility determination is
against the great weight and preponderance of the evidence.[1]
A plea is not knowingly and voluntarily entered if it
is made as a result of ineffective assistance of counsel.  See Ex parte
Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). The trial court must set
aside an involuntary plea and the trial court reversibly errs when it fails to
do so.  Boykin v. Alabama, 395 U.S. 238, 244 (1969); Williams v.
State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975).  When a defendant
challenges the voluntariness of a plea entered upon the advice of ineffective
counsel, the voluntariness of the plea depends on (1) whether counsel’s advice
was within the range of competence demanded of attorneys in criminal cases and,
if not, (2) whether there is a reasonable probability that, but for counsel’s
errors, he would have pleaded “not guilty” and insisted on going to trial.  Ex
parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466 U.S.
668, 687 (1984); and McMann v. Richardson, 397 U.S. 759, 770–71 (1970)). 
Similarly, an applicant for habeas-corpus relief must show his trial counsel’s
advice with respect to accepting a plea offer did not fall within the wide
range of competence demanded of attorneys in criminal cases, and that but for
the attorney’s deficiencies, the applicant would not have accepted the offer
but would have insisted on going to trial.  Ex parte Reedy, 282 S.W.3d
492, 500 (Tex. Crim. App. 2009).  
There is a strong presumption that counsel’s conduct
fell within a wide range of reasonable representation.  See Salinas v. State,
163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S.
at 687).  As with other types of ineffective-assistance-of-counsel claims, the appellant
has the burden to show by a preponderance of the evidence that counsel’s
performance fell below a reasonable standard of competence.  See Ex parte
Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999).  Any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State,
9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
The only evidence presented
as to counsel’s ineffectiveness was Ulloa’s uncorroborated testimony that
Contreras failed to inform him he would have to admit his guilt through sex-offender
counseling.  At the hearing on the motion and application, the trial court heard
testimony from both Ulloa and Contreras.  Contreras testified that while he
could not remember specifics from his conversation with Ulloa, it was his
policy to give “special attention” to informing his clients that successful
completion of sex-offender counseling typically requires an admission of
guilt.  Contreras further testified he was “sure” he explained the terms of
Ulloa’s probation and would have “disclosed everything to him that I knew that
I thought that he needed to know.”  Contreras also testified he would not have
told Ulloa a “no contest” plea was the same as a “not guilty” plea.  The trial
court also heard Ulloa’s contradictory testimony and found him to be “less than
credible.”  
As the fact finder, the
trial judge was entitled to believe Contreras properly informed Ulloa of the
ramifications of a “no contest” plea and the requirements of his deferred-adjudication
probation, and it was also within the trial court’s discretion to disbelieve
Ulloa’s testimony to the contrary.[2] 
See Kniatt, 206 S.W.3d at 664; Reed, 271 S.W.3d at 727.  We
cannot say the trial court acted unreasonably or arbitrarily in finding Ulloa
received effective assistance of counsel and that his plea was voluntary.  See
Lyles, 850 S.W.2d at 502.  We overrule the sole issue in Ulloa’s
appeal from the trial court’s denial of his application for habeas-corpus
relief.   
* * *
For the
foregoing reasons, we affirm the trial court’s judgments denying both Ulloa’s motion
to withdraw his plea and his application for habeas-corpus relief.  
 
 
                                                                                                
                                                                        /s/        Justice
Jeffrey V. Brown
 
 
Panel consists of Justices
Anderson, Frost, and Brown.
Publish
— Tex. R. App. P. 47.2(b).




[1] A majority of the judges
on the Court of Criminal Appeals have determined that the Jackson v.
Virginia legal-sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010) (plurality op.) (Hervey, J., joined by Keller, P.J., Keasler, and
Cochran, JJ.); id. at 926 (Cochran, J., concurring, joined by Womack,
J.) (same conclusion as plurality); see also Pomier v. State, 326 S.W.3d
373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.).  However, Brooks is
inapplicable here because in a habeas-corpus proceeding the burden is on the
applicant to prove his allegations only by a preponderance of the evidence, not
beyond a reasonable doubt.  See Kniatt, 206 S.W.3d at 664.  


[2] Ulloa argues that
Contreras’s alleged failure to inform him of the consequences of denying guilt
at sex-offender counseling is similar to Ex parte Gallegos, 511 S.W.2d
510, 513 (Tex. Crim. App. 1974). Gallegos pleaded “guilty” to robbery by
assault stemming from a jail break in which multiple prisoners took a guard’s
jail keys.  The appeals court found Gallegos’s counsel ineffective because
counsel failed to advise Gallegos of how the facts of his case related to Texas
law on robbery, thus preventing Gallegos’s “guilty” plea from being knowingly
and voluntarily entered.  Gallegos, 511 S.W.2d at 513.  Gallegos,
however, is not instructive in the case before us for two reasons.  First, the Gallegos
court employed the “reasonably effective assistance” standard, which has
since been replaced by the two-pronged Strickland test.  See
Strickland, 466 U.S. at 687; Hernandez v. State, 726 S.W.2d
53, 56–57 (Tex. Crim. App. 1986).  Second, in Gallegos there was no
testimony from Gallegos’s counsel contradicting the assertion that counsel
failed to competently advise Gallegos.  Here, Ulloa’s trial counsel (Contreras)
testified in contradiction of Ulloa’s testimony, and the trial court was
entitled to believe Contreras.   


