AFFIRMED; Opinion Filed November 4, 2015.




                                                        In The
                                         Court of Appeals
                                  Fifth District of Texas at Dallas
                                               No. 05-15-00454-CR

                           EX PARTE WILLIAM THOMAS NICHOLAS, JR.


                            On Appeal from the County Criminal Court No. 10
                                         Dallas County, Texas
                                 Trial Court Cause No. MC15-A0588-L

                                       MEMORANDUM OPINION
                                  Before Justices Bridges, Francis, and Myers
                                           Opinion by Justice Myers

           William Thomas Nicholas, Jr. appeals the trial court’s order denying him the relief

sought by his application for writ of habeas. We affirm the trial court’s order.

                                                   BACKGROUND1

           In 1986, appellant was convicted, on his guilty plea, of misdemeanor DWI. Punishment

was assessed at ninety days’ confinement, probated for twenty-four months, and a $450 fine. In

1994, appellant was convicted of a second misdemeanor DWI.                            The 1986 and 1994 DWI

convictions were used to elevate a 1998 third DWI to a third-degree felony. Appellant was

sentenced to three years’ imprisonment. In 2010, appellant, on his guilty pleas, was convicted in


1
    The background information is derived from the application for writ of habeas corpus and appellant’s brief.
Smith County of two second-degree-felony aggravated assaults with a deadly weapon. The 1998

felony DWI conviction was used to enhance the punishment range to a first-degree felony. The

trial court assessed two life sentences.

           On January 22, 2015, appellant filed an article 11.0722 application for writ of habeas

corpus challenging the voluntariness of his guilty plea in the 1986 misdemeanor DWI case. On

February 10, 2015, the trial court denied the writ of habeas corpus without a hearing. The trial

court entered written findings of fact and conclusions of law that stated: “(1) defendant was

charged with a Class B misdemeanor DWI case to which he pled guilty; (2) defendant is

currently incarcerated with the Texas Department of Justice for an unrelated offense; (3)

defendant filed his writ of habeas corpus pro se; (4) defendant’s writ contained no unresolved

issues material to the legality of his confinement; and (5) the Court denied the writ without a

hearing.”

                                                APPLICABLE LAW

           When reviewing a trial court’s ruling on a habeas corpus application, we view the

evidence presented in the light most favorable to the trial court’s ruling. Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App. 2006). We must uphold that ruling absent an abuse of

discretion. Id. We afford almost total deference to a trial court’s findings in habeas proceedings,

particularly when those findings are based upon an evaluation of credibility and demeanor. See

Ex parte Wheeler, 203 S.W.3d 317, 324 n.23 (Tex. Crim. App. 2006). We afford the same

amount of deference to the trial judge’s application of the law to the facts, if the resolution of the

ultimate question turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117

S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte


2
    TEX. CODE CRIM. P. ANN. art. 11.072 (West 2015) (habeas corpus procedure in community supervision case).


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Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). If the resolution of the ultimate question turns

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

       An applicant seeking habeas corpus relief based on an involuntary guilty plea must prove

his claim by a preponderance of the evidence. Kniatt, 206 S.W.3d at 664. The applicant has the

burden to prove the factual allegations contained in the application. Ex parte Thomas, 906

S.W.2d 22, 24 (Tex. Crim. App. 1995). The applicant also has the burden of ensuring a

sufficient record is presented to show error requiring reversal on appeal. Washington v. State,

326 S.W.3d 701, 706 (Tex. App.––Houston [1st Dist.] 2010, no pet.). The application for writ of

habeas corpus, although sworn to, is but a pleading and does not prove itself. See Ex parte

Wells, 332 S.W.2d 565, 565 ( Tex. Crim. App. 1960); see also State v. Guerrero, 400 S.W.3d,

576, 583 (Tex. Crim. App. 2013); Washington, 326 S.W.3d at 706; Ex parte Taylor, 690 S.W.2d

33, 34 (Tex. App.––Beaumont 1985, no pet.).

                                           DISCUSSION

       Appellant contends the trial court’s findings are erroneous and that the court abused its

discretion by denying his application for writ of habeas corpus. Appellant asserts that his 1986

guilty plea was involuntary because he was indigent and was not admonished as to his right to an

attorney. Appellant asserts that because the plea was involuntary, the judgment of conviction is

void, and thus it should not have been used to enhance his third DWI to a felony offense. The

State responds that the trial court properly exercised its discretion in denying appellant’s

application for writ of habeas corpus because the record supports the trial court’s findings on

each of appellant’s points.

       To the extent appellant complains the trial court abused its discretion in not conducting

an evidentiary hearing on his application, his issue is without merit. There is no requirement that



                                                -3-
the trial court hold an evidentiary hearing before determining the merits of claims raised in

appellant’s application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.072

(West 2015); Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.).

        Moreover, appellant had the burden to prove he was entitled to the relief sought by his

article 11.072 application for writ of habeas corpus. See Kniatt, 206 S.W.3d at 664. Appellant

presented no evidence that his 1986 guilty plea was involuntary. See Ex parte Thomas, 906

S.W.2d at 24. Rather, he relies solely on the statements he made in his application, which are

not evidence.     See Ex parte Wells, 332 S.W.2d at 565.            Additionally, appellant’s current

incarceration on the two aggravated assault offenses is unrelated to the 1986 DWI case, he did

file his application for writ of habeas corpus pro se, and the writ application did not contain any

unresolved issues material to the legality of his confinement. The record before us supports the

trial court’s findings. Ex parte Wheeler, 203 S.W.3d at 323–24 (an appellate court defers to the trial

court’s factual findings supported by the record).

        Reviewing the record as a whole, we conclude the trial court did not abuse its discretion

in denying appellant the relief sought by his application for writ of habeas corpus. See Kniatt,

206 S.W.3d at 664. We overrule appellant’s issues.

        We affirm the trial court’s order denying appellant the relief sought by his application for

writ of habeas corpus.



                                                           /s/ Lana Myers
                                                           LANA MYERS
                                                           JUSTICE

Do Not Publish
TEX. R. APP. P. 47
150454F.U05



                                                     -4-
                                  Court of Appeals
                           Fifth District of Texas at Dallas

                                         JUDGMENT


EX PARTE WILLIAM THOMAS                               Appeal from the County Criminal Court
NICHOLAS, JR.                                         No. 10 of Dallas County, Texas (Tr.Ct.No.
                                                      MC15-A0588-L).
No. 05-15-00454-CR                                    Opinion delivered by Justice Myers,
                                                      Justices Bridges and Francis participating.



        Based on the Court’s opinion of this date, the trial court’s order denying the relief sought
by the application for writ of habeas corpus is AFFIRMED.



       Judgment entered this 4th day of November, 2015.




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