Opinion filed February 19, 2009




                                               In The


   Eleventh Court of Appeals
                                            ___________

                                      No. 11-08-00162-CR
                                           _________

                            EX PARTE ROBERT C. MORRIS


                             On Appeal from the 29th District Court

                                     Palo Pinto County, Texas

                                   Trial Court Cause No. 11530


                             MEMORANDUM OPINION
       This is an appeal pursuant to TEX . R. APP . P. 31. In 2001, Robert C. Morris was convicted,
upon his plea of guilty, of possession of child pornography. The trial court assessed his punishment
at confinement for ten years and a $2,500 fine. Pursuant to the plea bargain agreement, the trial court
suspended the imposition of the sentence and placed appellant on community supervision for ten
years. In 2007, appellant filed an application for writ of habeas corpus under TEX . CODE CRIM .
PROC. ANN . art. 11.072 (Vernon 2005) on the grounds that he was denied effective assistance of trial
counsel, that the search of his residence and the subsequent seizure of evidence was illegal, that he
did not voluntarily consent to the search, and that both his written statement and his guilty plea were
involuntarily entered. The trial court denied the application. We affirm.
       The State raises jurisdictional concerns in its brief. Article 11.072, section 8 provides that,
if “the application is denied in whole or in part, the applicant may appeal under [TEX . CODE CRIM .
PROC. ANN . art. 44.02 (Vernon 2006)] and Rule 31.” In its order, the trial court stated that, after
having “considered the evidence,” it found that the application “should be . . . denied.” Pursuant to
Article 11.072, section 8 and Rule 31, the jurisdiction of this court has been invoked. We note that
the cases cited by the State involved applications filed under statutory provisions other than
Article 11.072.
       Pursuant to Rules 31.1 and 31.2, this appeal will be determined upon the law and the record
before this court. The sole purpose is to do justice to the parties, and any incidental questions will
not be considered. Rule 31.2.
       In order to take advantage of the relief offered under Article 11.072, the applicant must
currently be on community supervision and must not be able to obtain relief as the result of a direct
appeal under Article 44.02. To the extent that appellant is challenging issues that he could have
raised in a direct appeal from his 2001 conviction, his contentions are dismissed for want of
jurisdiction. The record before us is unclear whether appellant would have been able to have
complied with the requirements of perfecting a direct appeal under former TEX . R. APP . P. 25.2(b)(3).
Therefore, we will address the issues that he could not have been able to raise in a direct appeal from
a plea bargain agreement situation.
       Appellant complains on appeal that his retained counsel was ineffective for failing to file
pretrial motions to suppress the evidence seized from his computer because the search was conduct
without his consent, without a warrant, and without any valid exigent circumstances. He also sought
to suppress his statement. Appellant also contends that his trial counsel was ineffective because
counsel failed to convey “all possible avenues of defense” and instead provided “misinformation and
erroneous advice” that resulted in his involuntary plea of guilty. Appellant acknowledges that the
trial court properly admonished him at the plea hearing.
       In order to prevail in his arguments that he was denied effective assistance of counsel,
appellant must show that trial counsel’s representation fell below an objective standard of
reasonableness and that there is a reasonable probability that the result would have been different
but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S.


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668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Hernandez v. State, 988
S.W.2d 770 (Tex. Crim. App. 1999). Texas law requires the appellate court to indulge a strong
presumption that counsel’s conduct fell within the wide range of reasonable professional assistance,
and appellant must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002);
Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).
       The record before us does not support appellant’s contentions that his trial counsel’s
representation fell below an objective standard of reasonableness, that the trial court abused its
discretion by denying his application for writ of habeas corpus, or that his constitutional and
statutory protections were violated. Trial counsel filed an affidavit in response to appellant’s
application in which counsel stated that, at all times, appellant:
        [I]ndicated to me that he had voluntarily cooperated with the Mineral Wells Police
       Department in their investigation. He repeatedly stated that he wanted to help the
       Police Department eradicate child pornography. He stated that he had repeatedly told
       the lead investigator that he was willing to cooperate and help the Police Department
       in any way possible.

               In the course of my representation I interviewed Detective Mike McAllester,
       and Detective Johnny Guiterrez regarding the search and the evidence seized.
       Detective McAllester told me that, after requesting him to do so, Applicant went to
       the Police Department to open his computer to allow access to the images. During
       this informal discovery process, I examined the search warrant and the attendant
       documents, the consent to search form, the waiver of right statement, and the written
       statement given to Detective McAllester by Applicant. I also examined the evidence
       of child pornography, which included still photographs, and computer images, which
       was seized from Applicant’s residence and his computer. I obtained copies of the
       formal documents, but, of course, not of the evidence itself.

                In my opinion, the evidence supported the crime charged. I felt very strongly
       that a jury would be horrified and incensed about the images to be presented at a trial
       and would react accordingly with their verdict.

               In my interviews with Applicant, he reiterated the point that he did not pay
       for any of the materials, but that he found them on the internet and downloaded them.
       At no time did he raise any points regarding any coercion, threats, displaying
       weapons, or such similar conduct by the Mineral Wells Police Department as raised
       in the Application for Writ of Habeas Corpus. At all times Applicant expressly told
       me that his actions were voluntary. He repeatedly stated that he gave his confession

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       and his assistance to the Mineral Wells Police Department because he wanted to help
       them in the elimination of child pornography.

               His stated goal to me was to not go to prison and to resolve this matter as
       quickly and efficiently as possible. In that regards I initiated conversations with the
       District Attorney who eventually offered me a plea bargain offer which consisted of
       a probation term and a fine.

                I communicated the plea bargain offer to Applicant and explained to him in
       detail the aspects of the case and the status of Texas law. I also explained to him that
       in my opinion there was sufficient evidence for a jury to find him guilty of the
       offense of Possession of Child Pornography. At that time Applicant readily agreed
       to accept the plea bargain [agreement] offer.

               At the guilty plea hearing, Applicant and I reviewed the plea bargain papers.
       I explained to him each paragraph and allowed him the opportunity to ask any
       questions. Based on my recollection, he did not do so. He indicated that he fully
       understood the terms of the plea bargain, and the paperwork to which he affixed his
       signature. At no time did I coerce Applicant into signing the documents, accepting
       the plea bargain offer, or pleading guilty to the crime charged.

              Applicant’s charge in ground number 5 that “when in Court counsel ‘told’
       Applicant to say ‘yes’ to everything the Judge asked . . .” is only partially true. As
       is my usual practice, I told Applicant to always say “yes sir” or “no sir” when
       addressing the Court. Applicant has conveniently forgotten part of this instruction.

              The decision to accept the plea bargain offer and to plead guilty was made by
       Applicant of his own accord with no coercion by me.

Trial counsel’s trial strategy was clearly to represent appellant in such a matter as to secure
appellant’s goal “to not go to prison.” As stated, there is a strong presumption that trial counsel was
competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellant has the
burden of rebutting this presumption by presenting evidence that trial counsel’s conduct fell outside
the range of reasonable professional assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.
App. 2001). Appellant has not carried his burden under Strickland.
       All of appellant’s contentions properly before this court have been considered. Each has been
overruled.



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       The trial court did not abuse its discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
App. 2006). The order of the trial court is affirmed.




                                                        JIM R. WRIGHT
                                                        CHIEF JUSTICE


February 19, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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