                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NOS. 02-08-259-CR
                                   02-08-260-CR


EX PARTE NEWMON RAYMON PHILLIPS


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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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          Appellant Newmon Raymon Phillips appeals from the trial court’s order

denying the relief requested in his application for writ of habeas corpus. W e

affirm.

                                  I. Background

      On June 16, 2006, pursuant to plea bargains, Phillips pleaded guilty to

two separate charges of injury to a child with intent to cause bodily injury; he



      1
          … See Tex. R. App. P. 47.4.
received six years’ deferred adjudication community supervision on each, as

well as a $600 fine on one of the charges.2 On June 16, 2008, Phillips filed

the pro se application for writ of habeas corpus currently before the court on

both of the convictions, alleging six grounds.3

      The State filed a reply on June 24, 2008, contending that Phillips had

filed an initial application for writ of habeas corpus on April 26, 2007, alleging

one of the same grounds—that his guilty plea was involuntary because he was

in diabetic shock when he entered the plea and he did not understand the

nature of the proceeding. The trial court denied that application on July 23,

2007. The State argued that, because Phillips did not explain why his current

claims could not have been raised in his original application, the subsequent

application should be denied as an improper subsequent application for writ of

habeas corpus under article 11.072 of the code of criminal procedure.




      2
        … This court dismissed his direct appeals on August 29, 2006, for failing
to file a response showing grounds to continue the appeals in light of the trial
court’s certification that Phillips had no right of appeal. See Phillips v. State,
Nos. 02-06-00237-CR, 02-06-00238-CR, 2006 WL 2516357, at *1 (Tex.
App.—Fort Worth Aug. 29, 2006, no pet.) (mem. op., not designated for
publication).
      3
      … Although Phillips’s application states “APPLICATION FOR A WRIT OF
HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER
CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07,” he acknowledges in
subsequent filings that he makes his application under section 11.072.

                                        2
      Phillips filed a reply on June 27, 2008, claiming that he did not know

about and was not previously aware of the April 26, 2007 application and that

he only acknowledged the direct appeal filed on July 14, 2006. He stated, with

regard to subsequent applications under article 11.072,

      I, the applicant, was not aware of the previous application for
      habeas corpus writ. I only knew of the application for the appeal
      in which the court denied because of me doing a plea bargain while
      being incoherent. The reason I did not raise any complaints in the
      previous application of writ of habeas corpus is because I was not
      aware of the application . . . and I was not notified of the
      application being brought before the court.

Other than Phillips’s verified application, which included print-outs from the

Hypoglycemia Support Foundation describing hypoglycemia and from eMedicine

Health and MayoClinic.com describing diabetic ketoacidosis, he offered no other

affidavits or evidence to support his claims in the instant applications.

      The trial court denied Phillips’s applications without a hearing, stating,

“The Court finds that the applicant does not meet the requirements for the

consideration of a subsequent application for writ of habeas corpus. The Court

orders that this application for writ of habeas corpus be denied.”

                                 II. Discussion

A. Standard of Review

      Article 11.072 provides an opportunity for habeas corpus relief for

defendants convicted of a felony or misdemeanor and ordered to community

                                       3
supervision. See Tex. Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005);

Ex parte Cummins, 169 S.W.3d 752, 756 (Tex. App.—Fort Worth 2005, no

pet.). To prevail on a writ of habeas corpus, the proponent must prove his

allegations by a preponderance of the evidence. See Ex parte Thomas, 906

S.W.2d 22, 24 (Tex. Crim. App. 1995), cert. denied, 518 U.S. 1021 (1996).

      If the trial court denies the application in whole or in part, the applicant

may appeal under article 44.02 and rule 31 of the Texas Rules of Appellate

Procedure.    See Tex. Code Crim. Proc. Ann. art. 11.072, § 8; Ex parte

Villanueva, 252 S.W.3d 391, 396–97 (Tex. Crim. App. 2008). In reviewing

the trial court’s decision to grant or deny habeas corpus relief, we view the

facts in the light most favorable to the trial court’s ruling and, absent an abuse

of discretion, uphold the ruling. See Ex parte Peterson, 117 S.W.3d 804, 819

(Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219

S.W.3d 335 (Tex. Crim. App. 2007); Ex parte Twine, 111 S.W.3d 664, 665

(Tex. App.—Fort Worth 2003, pet. ref’d).

B. Phillips’s Prior Application

      Phillips’s prior application for writ of habeas corpus, filed on April 26,

2007, includes an affidavit, signed by him, asserting that

      At the time of my plea I was in the middle of a diabetic episode of
      hypoglycemia (low blood sugar). I did not know until about a day
      later that during the middle of my episode I had entered a guilty

                                        4
      plea. My low blood sugar episode was caused by Type One
      Diabetes, a condition I have suffered from for twenty-one years.

      My plea was not knowing or voluntary. I was not in my right mind
      to do anything as far as decision making. Had I been in my right
      mind I would not have entered my guilty plea.

An affidavit from Branen Gilbert, one of Phillips’s friends who was present in

the courtroom when Phillips entered his plea, stated essentially the same facts.

Phillips included no medical evidence to support his claim in the application.

      In response to the State’s request for affidavits, the trial court ordered

Phillips’s trial counsel to file an affidavit addressing Phillips’s complaint. Trial

counsel filed an affidavit containing the following:

            Before and during the process of entering [Phillips’s] plea in
      these cases, I had ample opportunity to discuss with him the
      consequences of accepting this plea or taking this matter to trial.
      While I was advising him, I had face to face contact and extensive
      verbal interaction with Mr. Phillips. At no time, either prior to the
      Court proceeding in which he agreed to accept the plea offer nor
      during t[h]e proceeding itself did he indicate that he was in any sort
      of diabetic distress.

             Furthermore, he did not appear to me to be ashen in color,
      disoriented in his thinking or verbal responses. His breath was not
      “fruity” nor did he appear dizzy or faint. In short, he displayed
      none of the characteristics of an individual suffering from
      hypoglycemia nor did he indicate that he had any of these
      symptoms.

The trial court denied Phillips’s application for writ of habeas corpus on July 23,

2007.


                                         5
C. Phillips’s Current Application

      Phillips argues that his current application should be granted as a proper

subsequent application under article 11.072 of the code of criminal procedure.

      Section nine of article 11.072 states that a trial court may not consider

the merits of or grant relief based on a subsequent application for a writ of

habeas corpus filed after final disposition of an initial application under article

11.072 unless

      the [new] application contains sufficient specific facts establishing
      that the current claims and issues have not been and could not
      have been presented previously in an original application or in a
      previously considered application filed under this article because the
      factual or legal basis for the claim was unavailable on the date the
      applicant filed the previous application.

Tex. Code Crim. Proc. Ann. art. 11.072, § 9(a). A legal basis of a claim is

unavailable if the legal basis was not recognized by and could not have been

reasonably formulated from a final decision of the United States Supreme Court,

a United States court of appeals, or a Texas appellate court on or before the

date the applicant filed the previous application. Id. § 9(b). A factual basis of

a claim is unavailable if the factual basis was not ascertainable through the

exercise of reasonable diligence on or before the date the applicant filed the

previous application. Id. § 9(c).




                                        6
          In Phillips’s current application, he states the following as grounds for

relief:

          (1) His guilty plea was involuntary because he is diabetic and his
          hypoglycemia rendered him incoherent and unable to understand
          the nature of the charge and the consequences of the plea;

          (2) His conviction was obtained by a coerced confession because
          his jailor deprived him of water and his medication for diabetes and
          high blood pressure for three days, resulting in a three-day stay in
          the intensive care unit of Arlington Memorial Hospital to treat him
          for diabetic ketoacidosis;

          (3) His conviction was obtained with evidence from an unlawful
          search and seizure when police pushed him down and forced their
          way into his home after he opened the door, questioned his
          stepdaughter without his consent, and searched his home, finding
          “alleged evidence which was later used to convict or charge [him]”;

          (4) His conviction was obtained with evidence obtained from an
          unlawful arrest, stating that he was arrested because of the bruises
          on his children without the police hearing his evidence “of how the
          children lied and fought other children while in the State[’s] custody
          before [he] got custody of them”;

          (5) He was denied effective assistance of counsel because his
          appointed counsel did not contact witnesses, character witnesses,
          or the school staff “that knew a lot about [his] children”; did not
          contact him until the day of his court hearing; and told him that the
          attorney “would get paid regardless if he won the case or not”; and

          (6) He was denied his right to appeal because, due to the
          hypoglycemia, he was unable to understand what he was signing
          away.

          Two of Phillips’s grounds pertain to his alleged diabetic condition—the

same condition upon which he based his earlier petition to claim that his guilty

                                            7
plea had been involuntary; that application included his signed affidavit as

evidence, belying his current assertion that he was not previously aware of the

April 26, 2007 application for writ of habeas corpus. Therefore, the trial court

did not abuse its discretion by denying the portions of his current application

that Phillips addressed in his previous application because the court had already

considered the issue of whether his plea was involuntary due to diabetes. And

the trial court did not abuse its discretion by denying the remaining related

portions of his current application because the voluntariness of Philips’s waiver

of his right to appeal on account of his medical condition could have been

presented in the April 2007 application. See Tex. Code Crim. Proc. Ann. art.

11.072, § 9(a).

      We conclude that Phillips’s remaining claims also could have been brought

in his April 2007 application.    The legal bases for these claims was not

unavailable at the time he brought the initial application: the law on coerced

confessions, unlawful search and seizure, and ineffective assistance of counsel

has existed for decades. See id. § 9(b); see also U.S. Const. amends. IV–VI;

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); Payton v.

New York, 445 U.S. 573, 100 S. Ct. 1371 (1980); Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602 (1966). Furthermore, Phillips failed to demonstrate

that the factual bases for these claims was not ascertainable to him through the

                                       8
exercise of reasonable diligence on or before he filed the initial application.4

See Tex. Code Crim. Proc. Ann. art. 11.072, § 9(c). Therefore, we hold that

the trial court did not abuse its discretion by denying Phillips’s subsequent

application for writ of habeas corpus.

                                  III. Conclusion

      Having overruled all of Phillips’s issues, we affirm the trial court’s order

denying Phillips habeas relief.


                                             PER CURIAM

PANEL: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.

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

DELIVERED: October 9, 2008




      4
       … Additionally, Phillips attached no affidavits or other evidence to
support his arguments with regard to his remaining claims in the instant
application.

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