                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-19-00126-CR

                  EX PARTE DEMETRIUS RASHAD GREER



                           From the 19th District Court
                             McLennan County, Texas
                           Trial Court No. 2017-874-C1A


                          MEMORANDUM OPINION


       Demetrius Greer appeals from the trial court’s denial of his application for writ of

habeas corpus. We affirm.

                                      BACKGROUND

       Demetrius Greer was convicted of the offense of assault family violence and

sentenced to 365 days confinement. Greer attempted to appeal that conviction, but this

Court dismissed the appeal because the certificate of right to appeal indicated that it was

a plea bargain case and that Greer waived his right to appeal. Greer v. State, No. 10-18-

00222-CR, 2018 Tex. App. LEXIS 5496 (Tex. App. — Waco July 18, 2018) (mem. op. not

designated for publication). Greer then attempted to appeal from the trial court’s denial
of his motion for new trial. This Court dismissed that appeal because it was not an appeal

from a judgment of conviction or an appealable interlocutory order. Greer v. State, No.

10-18-00251-CR, 2018 Tex. App. LEXIS 7844 (Tex. App. — Waco September 26, 2018) (mem.

op. not designated for publication). On February 25, 2019, Greer filed a post-conviction

application for writ of habeas corpus. The trial court denied the application without a

hearing. Greer appeals from the trial court’s denial of his application for writ of habeas

corpus.

                                  STANDARD OF REVIEW

       An appellate court reviews a trial court's decision to grant or deny an application

for writ of habeas corpus under an abuse-of-discretion standard. Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App. 2006). We 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 afford almost complete deference to the trial court's determination of

historical facts supported by the record, especially when those factual findings rely upon

an evaluation of credibility and demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297 (Tex.

App. — Houston [14th Dist.] 2003, no pet.).

       It is the burden of the habeas applicant to prove his allegations by a preponderance

of the evidence. Ex parte Martinez, 560 S.W.3d 681, 695 (Tex. App. — San Antonio 2018,

pet. ref’d, writ of certiorari filed March 1, 2019); Ex parte Coleman, 350 S.W.3d 155, 160

(Tex. App. — San Antonio 2011, no pet.) The applicant must also provide the court with


Ex parte Greer                                                                       Page 2
a sufficient record to prove his allegations. Ex parte Martinez, 560 S.W.3d at 695. Our

review of the habeas court's ruling may include the evidence adduced at the habeas

hearing and the record as it existed before the habeas court at the time of the hearing. Id.

                                     ACTUAL INNOCENCE

       In the first issue, Greer argues that the trial court abused its discretion in denying

his application for writ of habeas corpus because there is newly discovered evidence since

the date of the judgment that proves he is actually innocent. Greer was accused of

assaulting three women and was indicted for the offense of assault family violence. Greer

argues that the women have recanted the allegations and that this new evidence

establishes his innocence.

       To succeed in an actual innocence claim the applicant must show "by clear and

convincing evidence that, despite the evidence of guilt that supports the conviction, no

reasonable juror could have found the applicant guilty in light of the new evidence." Ex

parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). This showing must overcome

the presumption that the conviction is valid and it must unquestionably establish

applicant's innocence. Id. Not only must the habeas applicant make a truly persuasive

showing of innocence, he must also prove that the evidence he relies upon is "newly

discovered" or "newly available." Id. He cannot rely upon evidence or facts that were

available at the time of his trial, plea, or post-trial motions, such as a motion for new trial.




Ex parte Greer                                                                           Page 3
Id. Habeas relief is not available to one who has already litigated his claim at trial, in

post-trial motions, or on direct appeal. Ex parte Brown, 205 S.W.3d at 546.

       The same trial judge heard Greer’s plea of guilty, motion for new trial, and

application for writ of habeas corpus. The trial court signed Findings of Fact and

Conclusions of Law in which it noted that the “trial court reviewed the application, the

answer of the State, the record from the criminal case, and relies on the Court’s personal

recollection of the case.”

       In its findings, the trial court states that Greer failed to produce any newly

discovered evidence. The trial court further found that at the motion for new trial all

three victims had submitted affidavits recanting the allegations. Although Greer relies

on additional statements signed by two of the victims after the motion for new trial, both

of those victims had previously recanted their allegations either before the guilty plea or

at the motion for new trial. Neither of those additional statements provide newly

discovered evidence because that information was available at the time of his plea or

motion for new trial.

       Further, the trial court’s denial of the application for writ of habeas corpus was not

an abuse of discretion. The trial court found that the recantations were not credible and

that any additional statements attached to the application do not change the credibility

determination made by the trial court. We overrule the first issue.




Ex parte Greer                                                                         Page 4
                           INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, Greer argues that he received ineffective assistance of counsel

and that his plea was involuntary. To prevail on a claim of ineffective assistance of

counsel, an appellant must meet the two-pronged test established by the U.S. Supreme

Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

and adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57

(Tex.Crim.App.1986). Appellant must show that (1) counsel's representation fell below

an objective standard of reasonableness, and (2) the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

       Greer contends that his counsel did not explain to him which victim he was

pleading guilty of assaulting. Greer and his trial counsel both testified at the hearing on

his motion for new trial. In its Findings of Fact and Conclusions of Law, the trial court

found that trial counsel’s testimony was “credible regarding him informing [Greer] that

he was pleading guilty to assaulting all three victims and that [Greer] fully understood

what he was confessing to.” The trial court further stated that “the record was sufficiently

developed as to the allegation in this application to make that determination. Trial

counsel fully explained the case, the plea paperwork and the recantations with [Greer]

prior to the plea.” The trial court heard the testimony of Greer and trial counsel and

determined that trial counsel’s testimony was credible. Greer relies on his testimony at

the hearing on his motion for new trial to show that he received ineffective assistance of


Ex parte Greer                                                                        Page 5
counsel. Viewing the record before us, Greer has not demonstrated that he received

ineffective assistance of counsel under the two-prong test from Strickland v. Washington.

We overrule the second issue.

                                   SELF-REPRESENTATION

       In the third issue, Greer complains that he was denied his right of self-

representation. A defendant has a constitutional right to proceed without counsel when

he voluntarily, knowingly, and intelligently chooses to do so, and the state may not

constitutionally force a lawyer upon him. Faretta v. California, 422 U.S. at 820-21, 835, 95

S.Ct. at 2533-34, 2541. In order for a defendant to represent himself, his request must be

clear and unequivocal. Lathem v. State, 514 S.W.3d 796, 802-3 (Tex. App. — Fort Worth

2017, no pet.). Once a defendant asserts his right of self-representation, to ensure that

this decision is constitutionally effective, a trial court is obligated to advise the accused

of the dangers and disadvantages of self-representation. Blankenship v. State, 673 S.W.2d

578, 583 (Tex. Crim. App. 1984).

       Greer contends that he wanted to represent himself at trial because he did not

believe his trial counsel represented his “best interests.” Greer wanted “standby” counsel

present to assist him with procedural rules as needed. In its Findings of Fact and

Conclusions of Law the trial court found that Greer was fully admonished on the dangers

of self-representation and was given time to consider those admonishments. Greer then

decided to proceed with trial counsel and did not insist on self-representation. The record


Ex parte Greer                                                                         Page 6
shows that Greer was represented by different counsel at the hearing on his motion for

new trial. Viewing the record before us, Greer has not shown that his request for self-

representation was clear and unequivocal. We overrule the third issue. We find that the

trial court did not abuse its discretion in denying Greer’s application for writ of habeas

corpus.

                                      CONCLUSION

       We affirm the trial court’s order denying the application for writ of habeas corpus.




                                                 JOHN E. NEILL
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed September 4, 2019
Do not publish
[CR25]




Ex parte Greer                                                                       Page 7
