                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00561-CR


Ex parte Lawrence Idigbe                  §   From County Criminal Court No. 1

                                          §   of Denton County (CR-2010-01477-A)

                                          §   February 28, 2013

                                          §   Per Curiam

                                          §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00561-CR


EX PARTE LAWRENCE IDIGBE




                                      ------------

       FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

                                      ------------

                         MEMORANDUM OPINION1
                                      ------------

                                   I. Introduction

      Appellant Lawrence Idigbe appeals the denial of his article 11.072

application for writ of habeas corpus. Because the habeas court did not clearly

abuse its discretion, we affirm its denial of habeas corpus relief.




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

                                           2
                    II. Factual and Procedural Background

      On November 5, 2010, Idigbe pleaded guilty to the misdemeanor assault

of his girlfriend Ebonie Akinwunmi in exchange for twelve months’ deferred

adjudication community supervision and a fine.

      Idigbe was successfully discharged from community supervision on

November 28, 2011, and he filed an application for writ of habeas corpus on

October 26, 2012, presenting two grounds for relief: his actual innocence with

regard to the charged offense and an involuntary plea based on his trial

counsel’s coercion. He attached Akinwunmi’s affidavit to his application.

      In her affidavit, Akinwunmi set out the following recitation with regard to the

incident giving rise to the assault charge:

             On January 15, 2010, I went out with some of my girlfriends. I
      left my child, [K.I.], with a friend in my complex that evening. Early
      the next morning of January 16, 2010, my friend and I picked up my
      daughter and went back to my apartment. My boyfriend, and father
      of [K.I.], Lawrence Idigbe was already outside my apartment waiting
      for me to get home from that evening out. This was common for him
      to check on me and my child after evenings where I would go out
      drinking. I had obviously been out drinking during the night. He
      complained of me being wasted and didn[’]t want our daughter to
      see me in this state. He said that he was taking [K.I.] for the night
      and he picked her up to take her. I rushed to try to stop Lawrence
      and I grabbed at [K.I.] as Lawrence was lifting her. Due to both of us
      grabbing at our daughter, Lawrence’s hand accidentally hit me in the
      mouth. He immediately apologized but I asked him to leave. My
      friend that was with me, who was in the back room at the time,
      thought that we were fighting. I shouted at her to call the police so
      she called the police. Lawrence left immediately.

            When the police arrived, I told them that I had been drinking
      heavily and did not want to fill out any paperwork. I allowed them to
      take photos of me and my daughter but I would not sign or write

                                          3
      anything. The next day I realized the full extent of what had
      happened and so I never followed up with the police and pressing
      charges. Neither of us even realized that charges had been formally
      pressed after that point. A few months later, Lawrence was stopped
      on a traffic violation and the officer notified him of a pending warrant
      on an assault. In March 2010, shortly after formal charges were filed
      against Lawrence, I contacted Denton [C]ounty to inform them that I
      wanted the charges dropped. I also filed a formal affidavit of non-
      prosecution with the Denton DA’s office shortly thereafter. I have
      consistently stated that Lawrence did not assault me and that I do
      not want him prosecuted for something he allegedly did to me, since
      it is not true. I was ready and able to testify at trial and state that he
      never assaulted me and that the whole situation had been blown out
      of proportion. The defense attorney had been resetting the trial
      several times but I always remained available to testify on behalf of
      Lawrence.

             Lawrence and I do not have a violent relationship in any way.
      We have been in a relationship for seven years and have never
      been physically violent towards each other.          We have our
      disagreements, as all couples do, but he has never been physically
      aggressive towards me ever. He is a gentleman and has never hurt
      or hit me or my daughter.

            I am not making this affidavit to frustrate the ends of justice,
      nor have I been offered any benefit to testify falsely, to withhold
      testimony, to elude legal process or to be absent from any official
      proceeding.

      In his verified application, Idigbe stated the following with regard to the

voluntariness of his plea:

             After faithfully appearing in court on numerous occasions, Mr.
      Idigbe came again to court on November 5, 2010. His attorney,
      Brian Bolton, had sent a different lawyer to appear that day with Mr.
      Idigbe. Mr. Idigbe did not see his attorney in court so he stepped out
      of the courtroom to call his attorney. When he re-entered the
      courtroom, the Judge said that Mr. Idigbe had been late to court and
      instructed the bailiff to arrest Mr. Idigbe. While the bailiffs were in
      the process of arresting him, the attorney sent by Mr. Bolton to
      appear with Mr. Idigbe approached him and told him that he should
      take a plea to deferred adjudication in order to avoid being arrested

                                          4
      that day. Mr. Idigbe was told by this lawyer, who he had never met
      before, that taking the deferred adjudication was the only way for
      him to avoid going to jail. Based upon this series of coercive acts,
      Mr. Idigbe accepted the deferred adjudication and entered a guilty
      plea.

            If Mr. Idigbe had not been subjected to this coercion, he would
      not have entered a guilty plea to this case. It was his intention to
      persist in his plea of not guilty and proceed to a jury trial because Mr.
      Idigbe is, in fact, not guilty of this charge.

Other than his verified application and Akinwunmi’s affidavit, Idigbe offered no

other evidence to support his claims.

      In response, the State contended that Idigbe’s actual innocence claim

should fail because Idigbe had not established his innocence or shown that the

evidence upon which he relied was newly discovered. Specifically, the State

pointed out that Akinwunmi’s claim that she had not been assaulted by Idigbe

was not newly discovered or newly available evidence because Idigbe and the

State both knew this before Idigbe entered his plea bargain and that Akinwunmi’s

affidavit did not demonstrate clear and convincing evidence of Idigbe’s

innocence.

      To support its response to Idigbe’s actual innocence argument, the State

pointed out that Akinwunmi had stated in her affidavit that she had filed an

affidavit of nonprosecution in March 2010.         The State attached the police

summary of the assault containing Akinwunmi’s oral statements to the police.2


      2
       The police report lists as evidence taken in the case digital photos of
Akinwunmi’s injuries and of the child who was at the scene during the assault as
well as a copy of the 911 phone call, but the record does not reflect that the trial
                                         5
      The police report summary attached by the State to its response reflects

that on January 16, 2010, at approximately 2:32 a.m., Akinwunmi reported to

police that Idigbe, her ex-husband, “struck her in the mouth with a closed right fist

causing her bottom lip to split, bleed and swell” after he became upset that she

had been out at a club and she asked him to leave. According to the report,

Akinwunmi’s friend called 911, and while the friend was on the phone with 911,

she saw Idgibe punch Akinwunmi in the mouth without warning during their

argument; she reported this to the 911 operator. The officers took photos of

Akinwunmi’s injuries.

      The report reflects that four days after the incident, an officer called

Akinwunmi and left her a voicemail asking her to return his call.        When she

returned his call two days later, they set up a time for an interview, but

Akinwunmi did not show up for the interview and returned no subsequent phone

calls. Although an officer contacted Idigbe on January 21, 2010, and asked him

to come in for an interview, Idigbe did not set up an interview, although he called

the officer twice to ask for additional details about why the officer was

investigating, claiming that what had occurred was just a misunderstanding.

Idigbe also told the officer that Akinwunmi did not want to talk to anybody about

the incident.




court reviewed these before denying Idigbe’s application, and they are not
included in the record on appeal.

                                         6
        The State also responded that Idigbe’s involuntary-plea claim should fail

because he had delayed in making it until after he had satisfied the conditions of

his community supervision and had been successfully discharged. The State

pointed out that the trial court had properly admonished Idigbe about the

consequences of his plea and that Idigbe had signed an acknowledgment that he

was entering the plea fully aware of its consequences, as well as an application

for deferred adjudication and a statement that he understood his constitutional

trial rights and freely and voluntarily waived each and every one. And the State

argued that Idigbe had failed to prove that his plea was involuntary, attaching a

subpoena application for Akinwunmi and her friend who had witnessed the

assault that showed Idigbe was scheduled for a jury trial on November 8, 2010.

The State attached a certification of call for November 5, 2010, to illustrate that

Idigbe’s statements in his application about his timely presence in the courtroom

and his presence outside the courtroom were not credible. The State attached

Idigbe’s signed admonishments for deferred adjudication and waiver of trial

rights, as well as his application for deferred adjudication and an officer

notification of jury trial showing Idigbe’s jury trial date as Monday, November 8,

2010.

        Finally, the State argued that Idigbe’s allegations did not establish that his

unnamed attorney coerced Idigbe or provided any misrepresentations, stating,

        [Idigbe] was lawfully arrested for failure to appear; [Idigbe’s] own
        allegations show that his attorney merely informed him that he could
        wait in jail over the weekend before his trial, or he could be released

                                           7
      immediately if he wanted to plead guilty and accept the State’s offer
      of deferred adjudication. Providing such accurate information was
      not coercion to enter a plea, but rather giving information important
      to [Idigbe] so that he could make an informed decision.

      The habeas court denied Idigbe’s petition and adopted the State’s

proposed findings of fact and conclusions of law. The habeas court made the

following findings of fact:

      1.   On November 5, 2010, Applicant pleaded guilty to the
      misdemeanor offense of Assault--Family Violence and was placed
      on deferred adjudication community supervision for a term of 12
      months.

      2.   Applicant fulfilled all his conditions of community supervision,
      and he was discharged on November 21, 2011, and further
      proceedings were dismissed.

      3.    The affidavit provided by the complainant and attached to
      Applicant’s writ application did not represent newly discovered or
      newly available evidence, as Applicant and the State knew before
      Applicant entered his plea that Ms. Akinwunmi had a change of
      heart about her earlier assertions to a police officer that she had
      been assaulted by Applicant.

      4.    Considering the statements made by Ms. Akinwunmi to the
      responding police officer, the fact that another witness was present
      at the time of the assault, the fact that photographs were taken of
      the complainant’s injuries, and the complainant’s self-interest in
      protecting the father of her child, the Court finds that Ms.
      Akinwunmi’s claim in her affidavit that Applicant did not assault her is
      not credible.

      5.     Applicant delayed in making his involuntary plea claim until
      approximately two years after he entered his plea and one year after
      he satisfied all the conditions of his community supervision and was
      judicially discharged from community supervision and all
      proceedings dismissed.

      6.     At the time of his plea, Applicant acknowledged he was
      entering the plea fully aware of its consequences and that he was
      “freely and voluntarily” waiving his constitutional trial rights.
                                         8
      7.    The record shows that Applicant failed to timely appear for his
      court setting on the Friday before his Monday trial was scheduled to
      begin. Applicant’s claim in his writ that he was in the hallway is not
      credible.

      8.     Applicant’s attorney did not coerce Applicant to enter a plea of
      guilty, but merely communicated the options facing Applicant
      following his incarceration for failure to timely appear for his court
      setting.

      9.    Under all the circumstances in this case, including the strong
      evidence against Applicant and the unlikely chance of an acquittal
      by a jury, Applicant’s two-year delay in challenging his plea, his
      sworn representations at the time he entered his plea, his
      misrepresentations of why the Court ordered his arrest, and the
      proper and noncoercive advice provided by his unnamed attorney,
      the Court finds that Applicant accepted the State’s offer of deferred
      adjudication and a modest fine because Applicant had reasonably
      concluded that it was in his best interest to do so, not by any
      coercion by his attorney.

      The habeas court concluded that Idigbe’s claim of actual innocence failed

because it was not based on newly discovered evidence or on credible and

convincing evidence. It also concluded that Idigbe’s sworn representations as to

the voluntariness of his guilty plea, when combined with his two-year delay after

entering the plea, and year-long delay after being discharged from community

supervision, weighed against Idigbe’s claim that his plea was involuntary. And it

ultimately concluded that “[u]nder all of the circumstances of this case, as

referenced in finding number 9, [Idigbe] has not proven by a preponderance of

the credible evidence that his plea was not voluntary.” This appeal followed.3

      3
        The official court reporter notified this court that there is no reporter’s
record of the denial of application for writ of habeas corpus in this case, and we
did not request briefing. See Tex. R. App. P. 31.1, 31.2.

                                        9
See Tex. Code Crim. Proc. Ann. art. 11.072, § 8 (West 2005) (stating that if an

application is denied in whole or part, the applicant may appeal under article

44.02 and rule of appellate procedure 31); Ex parte Villanueva, 252 S.W.3d 391,

397 (Tex. Crim. App. 2008) (“[T]he appealability of an application for writ of

habeas corpus filed under Article 11.072 following a disposition by the district

court is controlled by Section 8 of Article 11.072.”).

                                   III. Discussion

      The sole purpose of an appeal in a habeas corpus proceeding is to do

substantial justice to the parties. See Tex. R. App. P. 31.2. Therefore, this

appeal will be determined on the law and the facts shown by the record. See id.

      In an article 11.072 appeal, absent an abuse of discretion, we must affirm

the habeas court’s decision on whether to grant or deny the relief requested in a

habeas application. See Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort

Worth 2011, pet. ref’d) (op. on reh’g) (citing Ex parte Garcia, 353 S.W.3d 785,

787 (Tex. Crim. App. 2011)). We review the evidence in the light most favorable

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

conclusions of law that are supported by the record, even when the findings are

based on affidavits rather than live testimony.          Id.   We also afford great

deference to the habeas court’s application of the law to the facts, to the extent

that the resolution of the ultimate question turns on an evaluation of credibility

and demeanor. Id. However, if the resolution of the ultimate question turns on

an application of legal standards, we review the determination de novo. Id.

                                          10
A. Actual Innocence

      Idigbe’s first ground that he presented in the habeas court was his actual

innocence of the offense to which he pleaded guilty. In reviewing this claim, the

habeas court must first consider whether the applicant presented newly

discovered evidence that affirmatively establishes his innocence. Id. at 831. If

the applicant presents such evidence, the habeas court then must determine

whether the applicant proved by clear and convincing evidence that no

reasonable juror would have convicted him in light of the newly discovered

evidence, after balancing the “new” evidence against the “old” inculpatory

evidence. Id. If the applicant entered a guilty plea, the plea—along with any

evidence entered or stipulation to the evidence that supports the plea—must be

considered in weighing the old evidence against the new evidence. Id.

      Here, the habeas court found, and the record reflects, that Akinwunmi’s

affidavit did not represent newly discovered or newly available evidence in light of

the affidavit of nonprosecution that she filed in March 2010, months before Idigbe

entered his guilty plea. Therefore, the habeas court could have concluded its

analysis when it found that Idigbe failed to provide affirmative newly discovered

evidence of his innocence. See id. at 839; cf. Ex parte Jiminez, 364 S.W.3d 866,

874–75 (Tex. Crim. App. 2012) (noting that neither the habeas judge nor the

applicant pointed to any significantly “new” or materially “different” expert

opinions than those already expressed by a different expert at trial, even though



                                        11
the new experts may have been more highly qualified), cert. denied, 133 S. Ct.

834 (2013).

      Nonetheless, the habeas court continued its analysis, also finding that

when comparing Akinwunmi’s affidavit to her statements made to the responding

police officer at the time of the offense and the other, “old” inculpatory evidence,

Akinwunmi’s claim that Idigbe had not assaulted her was not credible. Both of

the habeas court’s findings are supported by the record and support the habeas

court’s conclusion that Idigbe failed to prove by clear and convincing evidence

that no reasonable juror would have convicted him in light of the “new” evidence

in Akinwumi’s affidavit. See Mello, 355 S.W.3d at 839. Because we must afford

great deference to the habeas court’s findings of facts and conclusions of law—

particularly with regard to its credibility determinations—we cannot say that it

abused its discretion by denying Idigbe’s application on this ground. See id. at

832, 839–40.

B. Involuntary Plea

      Idigbe’s second ground involved the voluntariness of his guilty plea. The

test for determining the validity of a plea is whether it represents a voluntary and

intelligent choice among alternative courses of action open to the defendant. Ex

parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—Fort Worth 2009, pet. ref’d). A

guilty plea made by a defendant fully aware of the plea’s direct consequences

must stand unless it was induced by threats, misrepresentations, or promises

that are by their nature improper as having no proper relationship to the

                                        12
prosecutor’s business. Ex parte Morrow, 952 S.W.2d 530, 534–35 (Tex. Crim.

App. 1997), cert. denied, 525 U.S. 810 (1998).       In a post-conviction habeas

proceeding in which the applicant claims that his guilty plea was involuntary, the

applicant must prove the claim by a preponderance of the evidence. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied, 549 U.S. 1052

(2006). An applicant’s delay in seeking habeas relief may prejudice his claim’s

credibility, and his sworn representation that his guilty plea is voluntary

“constitutes a formidable barrier in any subsequent collateral proceedings.” Id.

(quoting Blackledge v. Allison, 431 U.S. 63, 73–74, 97 S. Ct. 1621, 1629 (1977)).

      Here, the habeas court found that Idigbe delayed making his involuntary

plea claim until two years after he had entered his plea and a year after he had

been successfully discharged from community supervision, that Idigbe had made

a sworn acknowledgment at the time of his plea that he was fully aware of his

plea’s consequences and had “freely and voluntarily” waived his constitutional

trial rights, and that—based on the certificate of call—Idigbe had failed to timely

appear for his court setting. It also expressly found that Idigbe’s claim that he

was in the hallway was not credible and that the defense attorney did not coerce

Idigbe into pleading guilty but rather communicated the options facing Idigbe

following his incarceration for failure to timely appear for his court setting that

day. And it ultimately found that based on the above, Idigbe’s decision to plead

guilty in exchange for deferred adjudication and a fine was voluntary.         The

record, as set out above in our factual recitation, supports all of these findings,

                                        13
and there is no evidence in the record to show that anyone threatened Idigbe or

made misrepresentations or improper promises to secure his guilty plea.

Therefore, we can discern no abuse of discretion by the habeas court by denying

Idigbe’s application on his second ground.

                                IV. Conclusion

      We affirm the habeas court’s judgment denying relief.



                                                 PER CURIAM


PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

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

DELIVERED: February 28, 2013




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