      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00048-CR



                                     Ex parte Barlow Smith


          FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH DISTRICT
            NO. 42272A, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Barlow Smith appeals the district court’s order denying his application for writ of

habeas corpus in which he sought relief from his conviction for fraudulent delivery of a controlled

substance. Smith, who was a doctor and a licensed attorney, acted pro se at trial and now

contends that he provided himself with ineffective assistance of counsel. He also contends that the

district court erred by not considering evidence outside the record supporting the claims of

ineffective assistance. We will affirm the denial of the application.


                                         BACKGROUND

               Smith was charged by indictment with three counts of fraudulent delivery of a

controlled substance. See Tex. Health & Safety Code § 481.129. He proceeded to trial, but after a

jury was empaneled and the State’s evidence began, he decided to accept a plea bargain in which he

pled guilty to the first count of the indictment and the State waived the remaining two counts. Smith

stated on the record that he had read and understood his guilty plea; that he was a licensed attorney

and understood the effect of the document; that he had signed it freely and voluntarily; that he had
received all discovery; that he understood he was waiving his right to proceed with a jury trial, his

right to file a motion for new trial, and his right to appeal; that the plea was in his best interest; that

he “was in entire agreement with” allowing all trial exhibits to be returned and not retained by the

court reporter; that he was not claiming to be incompetent; that he had not been forced, threatened,

coerced, or promised anything other than the agreement to secure his plea of guilty; and that, “I’m

pleading guilty because I am guilty.” Based on these affirmations the district court accepted Smith’s

plea, ordered a presentence investigation, and set a sentencing hearing for the following month. One

week before sentencing, Smith filed a motion to withdraw his guilty plea, alleging that he provided

himself with ineffective assistance of counsel.1 The court denied Smith’s motion and sentenced

him to five years’ imprisonment, suspending imposition of the sentence, and placing him on

community supervision for ten years. The court ordered Smith to spend fifteen days in the Burnet

County Jail as a condition of his community supervision.

                Smith then filed an application for writ of habeas corpus contending, as he did in his

motion to withdraw his guilty plea, that he provided himself with ineffective assistance of counsel

because he was on prescription medication for asthma that impaired his thinking. The trial court

denied the application and issued findings of fact stating that Smith’s ineffective assistance

allegations were unfounded, that his plea was freely and voluntarily made, and that his application

as a whole was frivolous. This appeal followed.




        1
          Smith’s motion also contended that he pled guilty to a “nonexistent crime” because the
heading of his indictment referred to the Penal Code instead of the Health and Safety Code (but cited
the correct section number for fraudulent delivery of a controlled substance). Smith did not pursue
that contention in his habeas application.

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                                           DISCUSSION

               An applicant seeking post-conviction habeas corpus relief bears the burden

of establishing by a preponderance of the evidence that the facts entitle him to relief. Ex parte

Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); see Tex. Code Crim. Proc. art. 11.072.

We defer almost completely to the habeas 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 Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We use the same deference

when reviewing the habeas court’s application of law to fact questions if the resolution of those

determinations rests upon an evaluation of credibility and demeanor. Id. If the outcome of those

ultimate questions turns upon an application of legal standards, we review the habeas court’s

determination de novo. Id.

               Smith contends in his first three issues that he is entitled to habeas relief because he

provided himself with ineffective assistance of counsel and that his ineffectiveness: (1) caused him

to accept a plea of guilty; (2) rendered his plea of guilty involuntary and “not knowingly made due

to his impaired thinking as his own lawyer”; and (3) prevented him from establishing his innocence.

However, the Texas Court of Criminal Appeals has concluded that when a defendant opts to

represent himself at trial, he may not thereafter complain that he received ineffective assistance

of counsel. Robinson v. State, 16 S.W.3d 808, 813 n.6 (Tex. Crim. App. 2000) (citing Faretta

v. California, 422 U.S. 806, 835 (1975) and noting that “it is axiomatic that a defendant who chooses

to forgo the assistance of counsel and represent himself at his trial also necessarily waives his right

to complain on appeal that he was rendered ineffective assistance”); Martin v. State, 630 S.W.2d

952, 956-57 (Tex. Crim. App. 1982) (“When an accused elects to represent himself he cannot

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complain that the quality of his own defense amounted to denial of effective assistance of counsel.”

(quoting Williams v. State, 549 S.W.2d 183, 189 (Tex. Crim. App. 1977))). Smith contends that the

precedents holding that a defendant may not complain of ineffective assistance of counsel when he

represented himself “properly appl[y] to non-lawyer defendants.” We find no case law or persuasive

logic to support that distinction, and we overrule Smith’s first three issues.

                 In his last two issues, Smith contends that the district court erred by not considering

evidence outside the record that Smith offered to support his claims of ineffective assistance.

However, because we have already determined that Smith may not raise an ineffective-assistance-of-

counsel complaint based on his representation of himself at trial, any error based on the refusal to

consider evidence outside the record allegedly supporting his ineffective-assistance complaint is

harmless. We overrule Smith’s last two issues.


                                           CONCLUSION

                 We affirm the district court’s order denying Smith’s application for habeas

corpus relief.




                                                Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: October 12, 2016

Do Not Publish


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