                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

 EX PARTE: MARCOS RAUL                            §
 ARREDONDO.                                                      No. 08-11-00327-CR
                                                  §
                                                                    Appeal from the
                                                  §
                                                                  409th District Court
                                                  §
                                                               of El Paso County, Texas
                                                  §
                                                              (TC# 20050D04168-409-1)
                                                  §

                                           OPINION

          Appellant Marcos Raul Arredondo appeals from the trial court’s denial of his application

for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2005).         In a single issue, Appellant asserts

that the trial court erred in denying him habeas relief because ineffective assistance of counsel

rendered his guilty plea involuntary.    We affirm the trial court’s order denying habeas corpus

relief.

                       FACTUAL AND PROCEDURAL BACKGROUND

          In January 2010, as part of a plea agreement, Appellant pleaded guilty to three counts of

indecency with a child by contact.       The trial court accepted Appellant’s plea, deferred the

adjudication of his guilt, and placed him on ten years’ community supervision.        In July 2011,
Appellant filed an application for a writ of habeas corpus alleging that his plea of guilty was

involuntary because his trial counsel erroneously advised him that he would only be required to

register as a sex offender for ten years after completing his probation.    He further alleged that

he would not have pleaded guilty if he had known that the sex offender registration requirement

was for life.   In support of his writ application, Appellant attached his own affidavit and

affidavits from John L. Williams, his trial counsel, and Carlos Mendoza, a West Texas

Community Supervision and Corrections Department employee.            As additional support for his

writ application, Appellant attached a non-prosecution affidavit he obtained from the

complainant after he had pleaded guilty.

       In his supporting affidavit, Appellant stated that he did not want to enter a plea of guilty

and that he and his attorney were “terrified of the thought of [Appellant] having to do prison

time.” Appellant’s attorney advised him that he believed that the sex offender registration

statute required reporting for ten years after probation was completed.     Appellant asserted that

the length of the registration was a vital fact in his decision to plead guilty. He asserted that if

his attorney had correctly advised him that the sex offender registration was for life, he would

not have pleaded guilty.   Similarly, in John L. Williams’ affidavit, Williams stated that he was

concerned about a jury convicting Appellant based on his appearance.           After discussing the

possible plea agreement with the State, Williams looked up the sex offender registration

requirement and “felt” that the statute called for a ten-year registration period after probation was

completed. Williams informed Appellant that the sexual offender registration period was for

ten years after probation was completed.    The length of the registration period was a vital fact to

his client in determining whether to enter a plea.


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        When Appellant was ready to sign the plea paperwork, the paperwork initially read

“reporting for life,” but Appellant was unwilling to sign with such wording. The paperwork

was revised to read “registration as required by law.”        After Appellant entered his guilty plea,

Appellant met with Carlos Mendoza to go over the conditions of probation. Appellant did not

want to sign the probation papers which indicated that sex offender registration was for life.

Williams told Appellant he thought the paperwork was wrong, but explained to him that he had

to sign the paperwork.    Williams told Appellant that he would conduct the necessary research to

correct the registration time.    Later, Williams reviewed the entire statute and realized that he

had erroneously advised Appellant about the length of the registration period.              Williams

believed Appellant would not have pleaded guilty if he had correctly advised Appellant that the

statute called for lifetime registration as a sex offender.

        According to the affidavit of Carlos Mendoza, Mendoza reviewed the terms and

conditions of probation with Appellant.         Appellant did not want to sign the sex offender

registration papers and was very concerned with the length of registration. Appellant stated that

his attorney had told him that “registration was only for 10 years after probation ended and not

for life.” When Williams was summoned, Williams told Mendoza that he thought the probation

material was wrong. Williams advised Appellant to sign the paperwork although he thought the

portions regarding the length of registration were not correct.

        Without conducting a hearing, the trial court denied Appellant’s application for habeas

relief, and issued written findings of fact and conclusions of law.     This appeal followed.

                                           DISCUSSION

        In his sole issue on appeal, Appellant challenges the trial court’s denial of his application


                                                   3
for a writ of habeas corpus.     He asserts that the trial court’s decision was erroneous and that he

demonstrated that his guilty plea was rendered involuntary due to the ineffective assistance of

counsel.

                                         Standard of Review

       When reviewing a trial court’s decision to grant or deny habeas relief, we apply an abuse

of discretion standard and we review the evidence in the light most favorable to the trial court’s

ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006).           A trial court abuses it

discretion when it acts without reference to any guiding rules or principles or when it acts

arbitrarily or unreasonably.    Ex parte Ali, 368 S.W.3d 827, 830 (Tex.App. – Austin 2012, pet.

ref’d); Ex parte Wolf, 296 S.W.3d 160, 166 (Tex.App. – Houston [14th Dist.] 2009, pet. ref’d).

       In article 11.072 post-conviction habeas corpus cases, the trial court is the sole finder of

fact. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex.Crim.App. 2011).             As the fact finder, the

trial court may accept some, all, or none of a witness’s testimony.     See Ex parte Peterson, 117

S.W.3d 804, 819 n.68 (Tex.Crim.App. 2003), overruled on other grounds by Ex parte Lewis, 219

S.W.3d 335 (Tex.Crim.App. 2007).         We give almost total deference to the trial court’s factual

findings when supported by the record, particularly when the factual findings are based on

credibility and demeanor.      Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App. 2006); Ex

parte Thompson, 153 S.W.3d 416, 417-18 (Tex.Crim.App. 2005).                Furthermore, we afford

almost total deference to the trial court’s application of law to the facts, also known as mixed

questions of law and fact, if the resolution of the ultimate question turns on an evaluation of

credibility and demeanor.      Ex parte Peterson, 117 S.W.3d at 819.       However, we review de

novo those mixed questions of law and fact that do not depend upon evaluation of credibility and


                                                  4
demeanor.    Id.

                                   Ineffective Assistance of Counsel

       In order to qualify for habeas corpus relief based on ineffective assistance of counsel, the

applicant must show that counsel’s representation fell below an objective standard of

reasonableness, and that there is a reasonable probability that but for counsel’s deficient

representation the outcome would have been different.      Strickland v. Washington, 466 U.S. 668,

669, 104 S.Ct. 2052, 2055-56, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353

(Tex.Crim.App. 2005).       The applicant bears the burden of proving counsel’s ineffective

assistance by a preponderance of the evidence.         Ex parte Martinez, 330 S.W.3d 891, 901

(Tex.Crim.App. 2011), cert. denied, 131 S.Ct. 3073, 180 L.Ed. 2d 896 (2011).         Under the two

prong Strickland analysis, challenges of ineffective counsel when rendering a guilty plea must

first show that counsel did not act as a reasonable, competent attorney.     Strickland, 466 U.S. at

669, 104 S.Ct. at 2055-56; See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88

L.Ed.2d 203 (1985).       The second prong establishing prejudice must show that counsel’s

ineffective representation affected the plea process to the extent there is a reasonable probability

that but for the representation, the applicant would not have pleaded guilty and would have

insisted on continuing to trial.    Strickland, 466 U.S. at 669, 104 S.Ct. at 2055-56; see Hill, 474

U.S. at 58-59, 106 S.Ct. at 370.

       Appellant asserts that his guilty plea was involuntary because his counsel was ineffective

in advising him that he would only be required to register as a sex offender for ten years after the

completion of community supervision, and had he known that he would actually be required to

register for life, he would not have pleaded guilty.    Appellant’s main evidence in support of his


                                                   5
assertion is the Williams’ affidavit.   Williams admits in his affidavit that he advised Appellant

both the evening before the hearing and the morning of that based on his research of the statute,

he believed the registration requirement would be for ten years after community supervision was

completed.     He also maintains that he spoke with Assistant District Attorney Griffith and

received her opinion and that of another Assistant District Attorney that registration was for life,

but still believed he was correct in thinking in Appellant’s case it would be for ten years

following community supervision.        Williams and Griffith approached the trial court about this

issue and it suggested that the plea paperwork be changed to reflect that Appellant would register

“as required by law.”    Appellant claims that based on the language, “as required by law,” and

the advice of counsel, he believed he would only be required to register for ten years after his

probation was completed and did not find out otherwise until he met with his probation official,

Mendoza, and was told the registration would be for life.         He refused to sign the probation

paperwork and Williams came to talk to him.           Williams told Appellant and Mendoza that he

thought the paperwork was wrong but to go ahead and sign it and he would find out how to fix it

at a later time.

        Although this information is in the affidavits of Appellant, Williams, and Mendoza, it

does not as Appellant states, make it clear that Williams misadvised his client.     See Shanklin v.

State, 190 S.W.3d 154, 167 (Tex.App. – Houston [1st Dist.] 2005), pet. dism’d, 211 S.W.3d 315

(Tex.Crim.App. 2007) (the court is not required to believe factual statements contained in an

affidavit, even if there is no evidence to controvert it).    The trial court, in its findings of fact

determined that the attestations of Williams and Appellant were not credible in their entirety.

Furthermore, the trial court found:


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13. The record reflects that the applicant signed additional written
admonishments,       acknowledging       that    he   understood     that   the
sex-offender-registration laws contained therein would apply to him and that he
understood that the laws contained therein was not inclusive of all the laws he
would be required to follow after pleading guilty.

14. The sex-offender-registration admonishment form also stated that “[t]he
duty to register for a person with a reportable conviction or adjudication for a
sexually violent offense or for an offense under Section 25.02, 43.05(a)(2), Penal
Code, ends when the person dies.”

                                     .   .    .

18. At the guilty-plea hearing, the applicant acknowledged that he understood
the contents of the guilty-plea papers and the sex-offender-registration
admonishment forms.

19. At the guilty-plea hearing, Attorney Williams testified that he explained the
guilty-plea papers and the sex-offender-registration admonishment forms to the
applicant.

                                     .   .    .

45. This Court does not believe that Attorney Williams, who is an experienced
criminal-defense attorney, would not have known that by pleading guilty to
indecency with a child by contact, the applicant would be required to register as a
sex offender for life.

                                     .   .    .

58. In her affidavit, Ms. Griffith states with absolute certainty that at no point
through all of her discussions regarding the registration issue did she ever have or
express any hesitation, uncertainty, or confusion in her position that the
sex-offender-registration requirement for indecency with a child by contact was
for life.

                                     .   .    .

61. In her affidavit, Ms. Griffith attests that Mr. Acosta unequivocally agreed
with her that the registration requirement was for life, which she related to
Attorney Williams prior to the applicant’s guilty plea.

                                     .   .    .


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        67. This Court finds the attestations contained within Ms. Griffith’s affidavit to
        be credible.

                                              .    .    .

        94. This Court finds no credible evidence that affirmatively proves that
        Attorney    Williams       misadvised  the applicant of    the   lifetime
        sex-offender-registration requirement.

        We conclude that these factual findings are based on credibility and demeanor and are

supported by the record.    As such, we give almost total deference to the trial court and adopt its

determination that the record does not affirmatively demonstrate that Appellant was misadvised

by counsel.    Ex parte Amezquita, 223 S.W.3d at 367; Ex parte Thompson, 153 S.W.3d at

417-18.

        Appellant claims that he was prejudiced by ineffective counsel because he would not

have pleaded guilty had he known that the registration requirement was for the rest of his life.

He points to correlating information given by Williams that Appellant was concerned with the

registration period and was unwilling to sign the plea agreement when the language listed

registration for life.   Williams opines that Appellant would not have pleaded guilty had he

known with certainty that Appellant would be required to register as a sex offender for the rest of

his life. The trial court found evidence that there were other vital factors for Appellant to plead

guilty, specifically a desire to avoid trial and prison time.   It pointed out that over a time span of

approximately four years, Appellant moved nine times to continue the case.           Additionally, the

trial court found:

        103. In his affidavit, the applicant attests that Attorney Williams told him that
        he was concerned about the makeup of the prospective jury panel and that he
        believed that if the applicant was convicted, the jury would give the applicant
        prison time.


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       104. In his affidavit, the applicant attests that “I did not want to plead guilty but
       my attorney and I were terrified of the thought of me having to do prison time.”

       105. In his affidavit, Attorney Williams attests that he was very unhappy with
       the makeup of the prospective jury panel and that he was concerned about a jury
       convicting the applicant based on his appearance (tattoos, piercings, size, and
       haircut).

       106. In her affidavit, Ms. Griffith attests that the implication or understanding
       by all the parties at the time the applicant pleaded guilty was that the applicant,
       who clearly wished to avoid a trial on the charged offenses and possible prison
       time, was acquiescing to whatever length of time the law required, even if that
       meant lifetime registration.

                                             .   .   .

       109. This Court finds that the applicant’s fear of prison time was a substantial, if
       not primary, consideration in his decision to plead guilty.

                                             .   .   .

       113. This Court does not find a reasonable probability that had the applicant
       known of the lifetime sex-offender-registration requirement, he would have
       insisted on going to trial on three second-degree-felony counts with a punishment
       range of 2 to 20 years’ confinement each and subsequent lifetime registration as a
       sex offender.

       The trial court ultimately came to the determination that Appellant’s assertion that he

would not have pleaded guilty but for counsel’s misinformation regarding the registration

requirement was not credible and a decision to reject the advantageous plea bargain and proceed

to trial would not have been rational.     We agree with the trial court’s determination that it

would not have been rational under the circumstances for Appellant to reject the plea bargain and

proceed to trial where he risked being sentenced between two and twenty years in prison for each

of three charges and having to adhere to the same lifetime registration requirement.      Ex parte

Ali, 368 S.W.3d at 840.    As such, Appellant did not suffer prejudice by the alleged occurrence

of ineffective counsel.   Hill, 474 U.S. at 58, 106 S.Ct. at 370.   Accordingly, we conclude that

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the trial court did not abuse its discretion in determining that Appellant failed to prove by a

preponderance of the evidence both that counsel was ineffective and that but for the ineffective

counsel, the outcome would have been different.        Strickland, 466 U.S. at 669, 104 S.Ct. at

2055-56; Kniatt, 206 S.W.3d at 664; Ex parte Martinez, 330 S.W.3d at 901; Ex parte Peterson,

117 S.W.3d at 819.    Issue One is overruled.

       The trial court certified Appellant’s right to appeal in this case, but the certification does

not bear Appellant’s signature indicating that he was informed of his rights to appeal and to file a

pro se petition for discretionary review with the Texas Court of Criminal Appeals. See TEX. R.

APP. P. 25.2(d). The certification is defective, and has not been corrected by Appellant’s

attorney, or the trial court. To remedy this defect, this Court ORDERS Appellant’s attorney,

pursuant to TEX. R. APP. P. 48.4, to send Appellant a copy of this opinion and this Court’s

judgment, to notify Appellant of his right to file a pro se petition for discretionary review, and to

inform Appellant of the applicable deadlines. See TEX. R. APP. P. 48.4, 68. Appellant’s

attorney is further ORDERED, to comply with all of the requirements of TEX. R. APP. P. 48.4.

                                         CONCLUSION

       We affirm the trial court’s denial of habeas corpus relief.



                                                GUADALUPE RIVERA, Justice
December 27, 2013

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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