                                         In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00229-CR
                           ____________________

              EX PARTE JOHNNIE LEWIS O’NEAL, Appellant


                On Appeal from the County Court at Law No. 5
                        Montgomery County, Texas
                          Trial Cause No. 15-28797


                          MEMORANDUM OPINION

      Appellant Johnnie Lewis O’Neal (Appellant or O’Neal) appeals the denial of

his post-conviction application for a writ of habeas corpus, wherein he alleged he

was denied the effective assistance of counsel and requested that he be allowed to

file an out-of-time appeal. We affirm.

                              FACTUAL BACKGROUND

      O’Neal filed a post-conviction application for a writ of habeas corpus

pursuant to Article 11.09 of the Texas Code of Criminal Procedure, requesting

leave to file an out-of-time appeal concerning his conviction for driving while



                                           1
intoxicated. 1 Tex. Code Crim. Proc. Ann. art. 11.09 (West 2011) In his application,

he argued that he was denied effective assistance of counsel in that his appointed

trial counsel never filed a notice of appeal, she never filed a motion to withdraw,

she never notified the court she would not pursue the case on appeal, and the

record does not reflect that O’Neal voluntarily, knowingly, and intelligently

waived his right to appeal his conviction. His application stated that the trial court

denied his motion to suppress that contested his warrantless arrest and that “[t]he

Court’s Certification of Defendant’s Right of Appeal recites that the case ‘is not a

plea-bargain case, and the defendant has the right of appeal.’”

      O’Neal obtained different counsel to represent him as to his application for

habeas relief. The trial court held a hearing in which an exchange between

O’Neal’s habeas attorney and the Court occurred as follows:

      [O’Neal’s habeas attorney]: . . . We want the court to take judicial
      notice of its file that there was no notice of appeal filed on behalf of
      Mr. O’Neal. [O’Neal’s trial attorney] did not file a motion to
      withdraw as his counsel. And there is nothing in the record to indicate
      that Mr. O’Neal was informed of his right to appeal. And we want the
      court to take judicial notice that there is nothing in the record to
      indicate that Mr. O’Neal knowingly, intelligently, and voluntarily
      waived his right to appeal.



      1
        O’Neal’s appellate brief states he filed his application on March 17, 2015.
The clerk’s record in this case, however, reflects that the application was received
and e-filed on March 27, 2015.
                                          2
      THE COURT: Within your pleading it does -- are you stating that the
      trial court certification is in the stack of documents?

      [O’Neal’s habeas attorney]: Yes, it is Your Honor.

      THE COURT: And it did inform him that it was a case with the right
      of appeal?

      [O’Neal’s habeas attorney]: Right.

      THE COURT: And he signed it, correct?

      [O’Neal’s habeas attorney]: Yes, Your Honor.

      THE COURT: Okay.

O’Neal’s trial attorney testified at the hearing, and the prosecutor questioned her as

follows:

      [Prosecutor]: So did you discuss with defendant his opportunity to go
      on appeal?

      [O’Neal’s trial attorney]: Yes, I did.

      [Prosecutor]: And the timelines associated with that, as far as filing a
      notice of appeal?

      [O’Neal’s trial attorney]: The timeline?

      [Prosecutor]: As far as the deadline for filing a notice of appeal
      following the date of his judgment?

      [O’Neal’s trial attorney]: You want me to give you the timeline?

      [Prosecutor]: No. No. Did you inform him about those timelines?

      [O’Neal’s trial attorney]: Yes.
                                           3
      [Prosecutor]: Did he indicate to you that he understood that he had a
      right to appeal?

      [O’Neal’s trial attorney]: Yes.

      [Prosecutor]: And did he indicate to you that he wanted to pursue an
      appeal?

      [O’Neal’s trial attorney]: No.

      [Prosecutor]: So he said he did not want to pursue an appeal?

      [O’Neal’s trial attorney]: Yes.

      [Prosecutor]: Okay. So from your understanding there was no need to
      appoint appellate counsel because he did not wish to proceed with an
      appeal?

      [O’Neal’s trial attorney]: Correct. That is my understanding.

      [Prosecutor]: Did his decision appear to be voluntary and knowing?

      [O’Neal’s trial attorney]: Yes.

No other witnesses testified at the hearing. After the hearing, the trial court denied

the application. Findings of fact and conclusions of law were not requested or filed.

O’Neal appeals.

                                  ISSUE ON APPEAL

      In a single issue, O’Neal argues that he should be permitted to file an out-of-

time appeal because he was deprived of the effective assistance of counsel because

his trial counsel did not file a notice of appeal on his behalf. More specifically, he
                                          4
complains that his trial counsel filed no motion to withdraw, gave no notice to the

trial court that she would not pursue the case on appeal, and the record does not

reflect that O’Neal voluntarily, knowingly, and intelligently waived his right to

appeal his conviction.

      In response, the State argues that the trial court did not have jurisdiction over

O’Neal’s application for a writ of habeas corpus because the application failed to

state that he was then confined or subject to collateral legal consequences of his

conviction, and that such a statement is required by Article 11.09 of the Texas

Code of Criminal Procedure. The State also argues that O’Neal’s trial counsel had

no duty to file an appeal where the evidence shows his trial counsel informed

O’Neal of his right of appeal and “it is clear that the appellant made an informed

decision to waive his right to appeal.”

                               STANDARD OF REVIEW

      “We generally review a trial court’s decision to grant or deny relief on a writ

of habeas corpus under an abuse of discretion standard . . . .” Ex parte Cummins,

169 S.W.3d 752, 755 (Tex. App.—Fort Worth 2005, no pet.). The trial court

abuses its discretion if it acts without reference to any guiding principles or acts

arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985). In reviewing the trial court’s decision, we review

                                          5
the facts in the light most favorable to the trial judge’s ruling. See Ex parte

Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other

grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). We

“‘afford almost total deference to a trial court’s determination of the historical facts

that the record supports especially when the trial court’s fact findings are based on

an evaluation of credibility and demeanor.’” Peterson, 117 S.W.3d at 819 (quoting

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); see also Arreola v.

State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      “We afford the same amount of deference to the trial judge’s rulings on

‘application of law to fact questions’ if the resolution of those ultimate questions

turns on an evaluation of credibility and demeanor. If the resolution of those

ultimate questions turns on an application of legal standards, we review the

determination de novo.” Ex parte Urquhart, 170 S.W.3d 280, 283 (Tex. App.—

Dallas 2005, no pet.) (citations omitted) (citing Peterson, 117 S.W.3d at 819).

When, as here, a trial court does not make explicit findings of fact and conclusions

of law and neither party has requested them, we imply the findings necessary to

support the trial court’s ruling if such findings are supported by the record. See

State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006).




                                           6
      In a habeas proceeding, the applicant has the burden of proving that an error

contributed to his or her conviction or punishment. See Ex parte Williams, 65

S.W.3d 656, 658 (Tex. Crim. App. 2001); Cummins, 169 S.W.3d at 757. An

applicant for habeas corpus must prove his allegations by a preponderance of the

evidence. Ex parte Galvan, 770 S.W.2d 822, 823 (Tex. Crim. App. 1989).

                          “CONFINEMENT” REQUIREMENT

      A defendant convicted of a misdemeanor offense may attack the validity of

the conviction by way of habeas corpus if he is either (1) confined or restrained as

a result of a misdemeanor charge or conviction; or (2) is no longer confined, but is

subject to collateral legal consequences resulting from the conviction. See Tex.

Const. art. V, § 16; Tex. Code Crim. Proc. Ann. art. 11.09; Ex parte Schmidt, 109

S.W.3d 480, 483 (Tex. Crim. App. 2003) (holding that county courts and their

judges have “the power to issue the writ of habeas corpus when a person is

restrained by an accusation or conviction of misdemeanor”).

      “Confined,” for habeas corpus purposes, means not only “the actual,

corporeal and forcible detention of a person,” but also “any coercive measures by

threats, menaces or the fear of injury, whereby one person exercises a control over

the person of another, and detains him within certain limits.” Tex. Code Crim.

Proc. Ann. art. 11.21 (West 2011). “Restrained,” for habeas corpus purposes,

                                         7
means “the kind of control which one person exercises over another, not to confine

him within certain limits, but to subject him to the general authority and power of

the person claiming such right.” Id. art. 11.22 (West 2011). The Court of Criminal

Appeals has stated in the context of an application for Article 11.07 habeas relief

that to raise a cognizable claim, a party seeking habeas relief must assert in his

application that he is subject to confinement, restraint, or collateral legal

consequences. See Ex parte Harrington, 310 S.W.3d 452, 458 n.16 (Tex. Crim.

App. 2010) (applying Tex. Code Crim. Proc. Ann. art. 11.07). In Ex parte

Harrington, the Court concluded that post-conviction habeas relief was available

under Article 11.07 even though the applicant had been discharged from his

sentence because he established at the hearing that he continued to suffer collateral

consequences arising from his conviction. Id. at 454. In that case, the Court

concluded that the record supported the trial court’s findings that the applicant had

current and future consequences from his felony DWI conviction that included the

loss of his job and other employment. Id. at 457-58.

      In the case at bar, O’Neal seeks habeas relief under Article 11.09. Under

Article 11.09, the express language of the statute provides that:

            Art. 11.09. Applicant Charged with Misdemeanor. If a person is
      confined on a charge of misdemeanor, he may apply to the county
      judge of the county in which the misdemeanor is charged to have been
      committed, or if there be no county judge in said county, then to the
                                          8
      county judge whose residence is nearest to the courthouse of the
      county in which the applicant is held in custody.

Tex. Code Crim. Proc. Ann. art. 11.09 (emphasis added). Article 11.14 of the

Texas Code of Criminal Procedure expressly provides that the petition must

include the following:

              Art. 11.14. Requisites of Petition. The petition must state
      substantially:
              1. That the person for whose benefit the application is made is
      illegally restrained in his liberty, and by whom, naming both parties, if
      their names are known, or if unknown, designating and describing
      them;
              2. When the party is confined or restrained by virtue of any
      writ, order or process, or under color of either, a copy shall be
      annexed to the petition, or it shall be stated that a copy cannot be
      obtained;
              3. When the confinement or restraint is not by virtue of any
      writ, order or process, the petition may state only that the party is
      illegally confined or restrained in his liberty;
              4. There must be a prayer in the petition for the writ of habeas
      corpus; and
              5. Oath must be made that the allegations of the petition are
      true, according to the belief of the petitioner.

Id. art. 11.14 (West 2011).

      The applicant must also establish that the confinement or restraint is a result

of the conviction he seeks to attack in his habeas application. See Phuong Anh Thi

Le v. State, 300 S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(habeas applicant must establish that the collateral legal consequences resulted

from her Texas misdemeanor convictions); State v. Collazzo, 264 S.W.3d 121,
                                         9
125-26 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (defendant may attack a

misdemeanor conviction provided he is confined, restrained, or subject to collateral

legal consequences resulting from the conviction he attacks); cf. Ex parte Eureste,

725 S.W.2d 214, 216 (Tex. Crim. App. 1986) (dismissing habeas proceedings

where the court’s jurisdiction was not properly invoked because applicant was not

restrained under the contempt order that he attacked in his habeas application).

      The State argues that O’Neal’s application was defective and that he failed

to invoke the trial court’s jurisdiction because he failed to assert that he was then

subject to confinement, restraint, or collateral legal consequences. According to the

State’s brief, “the appellant was sentenced to 120 days in county jail and was

discharged from his sentence prior to filing his application seeking habeas relief[,]”

although the State does not provide record citations to support this assertion. 2 See



      2
         The State asserts in its brief on appeal that at the time the application was
filed, O’Neal remained in custody of the Texas Department of Criminal Justice–
Institutional Division, but he was “serving a sentence for a separate felony charge.”
In his reply brief, O’Neal characterizes this statement in the State’s brief as a
judicial admission “that the Appellant remains confined . . . based upon a Motion
to Adjudicate based in part on the misdemeanor conviction that is the subject of the
habeas corpus proceeding.” O’Neal also offers a copy of a Motion to Adjudicate
and an Order of Arrest as an appendix to his reply brief. The Motion to Adjudicate
and the Order of Arrest were not included in the official record on appeal, and
nothing on the face of these documents links them specifically to the misdemeanor
conviction O’Neal seeks to appeal. The statement in the State’s brief and the
documents O’Neal references in his reply brief fail to establish that O’Neal is
                                         10
Tex. R. App. P. 38.1(i) (requiring an appellate brief to include citations to authority

and to the record).

      An applicant for habeas relief bears the burden of proof as to his application.

See Galvan, 770 S.W.2d at 823; see also Ex Parte Thomas, 906 S.W.2d 22, 24

(Tex. Crim. App. 1995) (an applicant for a writ of habeas corpus bears the burden

to prove factual allegations by a preponderance of the evidence). In this case,

O’Neal did not include factual allegations within his application regarding his

confinement or restraint, and he did not provide evidence at the habeas hearing to

establish that he was then confined or restrained or subject to any collateral legal

consequences as a result of the misdemeanor conviction. Because O’Neal did not

identify how he was “confined” or “restrained” within the meaning of Article

11.09, the trial court could have concluded that O’Neal failed to state a cognizable

claim and therefore it was not an abuse of discretion for the trial court to deny

O’Neal’s petition for habeas relief. Nevertheless, we also consider O’Neal’s claim

of ineffective assistance of counsel.

                  CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

      “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

confined or restrained as a result of the misdemeanor conviction that is the subject
of the habeas proceeding.
                                          11
that the trial cannot be relied on as having produced a just result.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective assistance

claim, O’Neal must establish that (1) trial counsel’s representation fell below the

objective standard of reasonableness, based on prevailing professional norms, and

(2) there is a reasonable probability that the result of the proceeding would have

been different but for counsel’s deficient performance. See id. at 687-88; Perez v.

State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Hernandez v. State, 726

S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (holding Strickland standard applies to

ineffective assistance claims under the Texas Constitution.). An appellant bears the

burden of proving by a preponderance of the evidence that his counsel was

ineffective. See Perez, 310 S.W.3d at 893; Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999).

      When determining the validity of a defendant’s claim of ineffective

assistance of counsel, our judicial review must be “highly deferential to trial

counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813

(citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). There is a

strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance and that counsel was motivated by sound trial strategy.

                                        12
Strickland, 466 U.S. at 689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App.

2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Chambers v.

State, 903 S.W.2d 21, 32-33 (Tex. Crim. App. 1995); Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App. 1994). Therefore, “the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)); Tong, 25 S.W.3d at 712. To overcome the

presumption    of   reasonable   professional    assistance,   “‘any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.’” Thompson, 9 S.W.3d at

814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996));

see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The

appropriate context is the totality of the representation; counsel is not to be judged

on isolated portions of his representation. See Thompson, 9 S.W.3d at 813; Solis v.

State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990).

      Trial counsel has the responsibility to consult with and advise the client

concerning the meaning and effect of the judgment rendered by the court, the right

to appeal from that judgment, the necessity of giving notice of appeal and taking

other steps to pursue an appeal, as well as expressing counsel’s professional

                                         13
judgment as to possible grounds for appeal and their merit, and delineating

advantages and disadvantages of appeal. See Ex parte Axel, 757 S.W.2d 369, 374

(Tex. Crim. App. 1988). Trial counsel’s responsibilities consist of a two-step

process. See Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003). First, the

attorney must ascertain whether the defendant wishes to appeal. Id. The decision to

appeal lies solely with the defendant; and, the attorney’s duty is to advise him as to

the matters described above. Id.; see also Ex parte Axel, 757 S.W.2d at 374 (“The

decision to appeal belongs to the client.”). If the defendant does not wish to appeal,

trial counsel’s representation ends. See Jones, 98 S.W.3d at 703.

      In this matter, the trial court informed O’Neal of his right to appeal, and the

trial court’s certification, which O’Neal admits that he signed, informed O’Neal

that he had the right of appeal. Furthermore, O’Neal’s trial attorney testified at the

habeas proceeding that she informed him of his right to appeal and of the deadline

for filing a notice of appeal, that he indicated to her that he did not want to pursue

an appeal, and that she believed O’Neal’s decision was voluntary and knowing. 3

      3
         The prosecutor at the habeas hearing explained to the court that O’Neal’s
trial counsel, who had been subpoenaed to testify “ha[d] some reservations about
attorney-client privilege[]” and that she requested the court order her to be released
from that privilege for the purposes of the habeas hearing. The trial court ordered
O’Neal’s trial counsel to respond to the questions asked. In a Post-Hearing
Memorandum of Law, O’Neal complained that “[attorney-client] privilege belongs
to the client, not to the attorney, and any information that is to the client’s
                                         14
      O’Neal provided no evidence or testimony to controvert his attorney’s

testimony. O’Neal makes no claim on appeal that he actually advised his trial

attorney that he wished to appeal the misdemeanor conviction. “The logical

prerequisite to an attorney pursuing an appeal is that his client desires to appeal.”

Galvan, 770 S.W.2d at 823. After O’Neal’s trial counsel informed him regarding

his right to appeal and O’Neal decided not to appeal, trial counsel’s representation

ended. See Jones, 98 S.W.3d at 703; Ex parte Axel, 757 S.W.2d at 374.

      After carefully examining the entire record now before us, we conclude that

O’Neal failed to meet his burden of proof to establish that trial counsel’s

representation fell below the objective standard of reasonableness, based on

prevailing professional norms. See Thompson, 9 S.W.3d at 814. Where an

appellant fails to satisfy one prong of the Strickland test, a court need not consider

the other prong. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)

(citing Strickland, 466 U.S. at 697). We overrule O’Neal’s issue on appeal.

Viewing the record in a light most favorable to the trial court’s ruling, we affirm


disadvantage is not to be disclosed unless the client consents.” Nevertheless,
O’Neal does not raise the issue of attorney-client privilege on appeal, and we note
that the Court of Criminal Appeals has explained that “when counsel faces an
ineffective-assistance claim, the attorney-client privilege is waived, and trial
counsel has the opportunity to explain his actions.” State v. Thomas, 428 S.W.3d
99, 106 (Tex. Crim. App. 2014).

                                         15
the trial court’s denial of O’Neal’s application for habeas relief. See Ex parte

Peterson, 117 S.W.3d at 819; Ex parte Cummins, 169 S.W.3d at 755.

      AFFIRMED.


                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on August 26, 2015
Opinion Delivered September 23, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                       16
