           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       NO. AP-76,288



              EX PARTE ALAN EUGENE HARRINGTON, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 12,154-A IN THE 21ST DISTRICT COURT
                             BASTROP COUNTY



       C OCHRAN, J., delivered the opinion of the unanimous Court.

                                         OPINION

       The issue in this case is whether post-conviction habeas-corpus relief is available

under Article 11.07 1 if an applicant has discharged his sentence, but continues to suffer

collateral consequences arising from the conviction. We hold that it is.

       In this case, applicant contends that habeas corpus lies because his plea was

involuntary due to counsel’s ineffectiveness in failing to investigate a prior DWI conviction




       1
       T EX . CODE CRIM . PROC. art. 11.07.
                                                                               Harrington     Page 2

used to enhance applicant’s misdemeanor DWI charge to a felony charge.2 He claims that

he is confined as a result of his conviction and is thus entitled to habeas relief. We find that

because applicant currently suffers collateral consequences arising from his conviction, he

is “confined” for the purpose of seeking habeas relief under article 11.07. We also adopt the

trial judge’s Agreed Findings of Fact (which are supported by the record) and his

recommendation to grant relief on applicant’s involuntary-plea claim.

                                         I. Background

       Applicant was arrested in Bastrop County for DWI in February 2006 and was indicted

for Felony DWI.3 The indictment listed two prior DWI convictions as reflected in applicant’s

criminal-history report for the purpose of enhancement: the first, in Austin County in 1986;

the second, in Travis County in 2003. In May 2006, upon the advice of his attorney,

applicant pleaded guilty to the felony DWI and received probation. Applicant’s probation

was later revoked, and he was sentenced to two years in prison and a $2,500 fine.

       Prior to entering his guilty plea, applicant told his appointed attorney that the 1986

conviction did not belong to him and was mistakenly listed on his criminal-history report.


       2
          Applicant’s sole ground for relief stated that “Applicant’s plea was not voluntary and
intelligent, but rather was the fruit of ineffective assistance of counsel. Applicant’s trial counsel
failed to investigate prior alleged convictions used to enhance applicant’s misdemeanor charge to
a felony charge. One of the prior convictions used for enhancement purposes was not the
Applicant’s conviction and appeared mistakenly on his criminal history.”
       3
         TEX . PEN . CODE §§ 49.04, 49.09. DWI is a Class B misdemeanor unless it is shown that
an offender has a previous conviction for a similar offense. Evidence of one previous conviction
enhance the offense to a Class A misdemeanor; two previous convictions enhances the offense to
a third-degree felony.
                                                                              Harrington    Page 3

The conviction actually belonged to Jesse Armistead, a man who had dated applicant’s sister

and had stolen applicant’s driver’s license. Armistead was arrested for DWI, presented

applicant’s driver’s license and identified himself as applicant to police. He was convicted

of DWI under applicant’s name.4 Although applicant had given his attorney this information,

that attorney failed to investigate the prior conviction and advised applicant to plead guilty

to the felony DWI. According to applicant, his attorney told him “that the District Attorney

would just refile the case and that [he] would be found guilty anyway.” Applicant followed

his attorney’s mistaken advice. Seven days later, the Austin County Criminal District

Attorney sent applicant a letter confirming applicant’s version of the 1986 DWI.5

       In July 2008, the Austin Police Department conducted a fingerprint analysis, which

confirmed that applicant was not the person attached to the 1986 conviction. In 2009,

applicant filed a habeas-corpus application under article 11.07, seeking relief from the 2006

conviction. He contended that his plea was not voluntary because it was the fruit of

ineffective assistance of counsel. We remanded this case to the trial court to determine (1)

if applicant had discharged his sentence; and (2) whether he was suffering any specific

collateral consequences as a result of the 2006 conviction. After an evidentiary hearing, and

with the agreement of the State, the trial court entered its findings and conclusions, including



       4
         The trial judge made an explicit finding that applicant had been the “victim of identity
theft” by Jesse Armistead.
       5
         That letter stated that “Jesse Armistead was booked into the Austin County Jail using
[applicant’s] name” and later pled guilty to DWI, again using applicant’s name.
                                                                          Harrington    Page 4

the following:

      C      The applicant is not in custody and his sentence for his felony
             conviction has been discharged.

      C      As a result of the applicant’s wrongful conviction for a felony DWI he
             has suffered the following collateral consequences:

             a.     Loss of his job with the Texas Workforce Commission due to
                    his incarceration as a result of his wrongful felony conviction;
             b.     Loss of job opportunities due to his criminal felon status;
             c.     Loss of his right to vote during his incarceration and parole
                    period;
             d.     Loss of his right to run for an elected public office;
             e.     Loss of his right to possess firearms.

      C      The applicant may be affected by future collateral consequences as a
             result of his felony DWI conviction. Those consequences may include:

             a.     Enhanced penalties should he be charged and convicted of a
                    subsequent felony offense;
             b.     Enhanced penalty for any subsequent DWI conviction;
             c.     Possible impeachment of the applicant’s credibility in a judicial
                    hearing as a result of a felony conviction within 10 years of his
                    testimony should he be called to testify under the Texas Rules
                    of Evidence.

      C      With only one valid prior DWI conviction in the indictment in this
             cause, the applicant could not be convicted of Felony Driving While
             Intoxicated.

      C      The felony conviction in this cause should be set aside.

      C      The applicant should be convicted of Class A Misdemeanor Driving
             While Intoxicated.

      In sum, the trial court found, and the record supports, that applicant lost his long-time

job with the Texas Workforce Commission as a result of his felony conviction. He testified
                                                                         Harrington   Page 5

that he attempted to find new employment at the University of Texas in the Information

Technology field, but once he admitted that he had a felony DWI conviction, he was not

allowed to continue with the application process. He is currently a construction worker.

Applicant also testified that, if the 2006 felony conviction remains on his record, he will

continue to be prevented from obtaining other jobs for which he would otherwise be

qualified. The trial judge further found that applicant was wrongfully convicted of felony

DWI and recommended setting the conviction aside. The State agreed that applicant was

entitled to relief.

                                 II. Collateral Consequences

A.     Jurisdiction

       Under Article 11.07, a person who files a habeas-corpus application for relief from

a final felony conviction must challenge either the fact or length of confinement.6 In this

case, the question is whether a person who has discharged his sentence prior to filing an

application, but who continues to suffer collateral consequences arising from the challenged

conviction, is entitled to seek post-conviction habeas relief under Article 11.07.

       Article 11.07, which sets forth the procedure for non-death-penalty felony cases,

provides that “it shall be the duty of the convicting court to decide whether there are

controverted, previously unresolved facts material to the legality of the applicant’s




       6
           Ex parte Lockett, 956 S.W.2d 41, 42 (Tex. Crim. App. 1997).
                                                                                 Harrington     Page 6

confinement.” 7 Prior to 1995, the statute did not define “confinement.” In 1987, this Court

held, in Ex parte Renier, that an applicant who alleges only that he is under “restraint,” but

who is not “in custody” at the time of filing, is precluded from seeking relief under Article

11.07.8 We concluded that, “unless an applicant is confined pursuant to a commitment for

a felony conviction, a postconviction application for habeas corpus relief from collateral

consequences of another conviction will not lie under Article 11.07.” 9

       But in 1995, the statute was amended to eliminate Ex parte Renier’s construction of

“confinement” as requiring literal confinement.10 Article 11.07, § 3(c), now explicitly

provides that “confinement means confinement for any offense or any collateral

consequence resulting from the conviction that is the basis of the instant habeas corpus.” 11

Thus, a showing of a collateral consequence, without more, is now sufficient to establish

“confinement” so as to trigger application of art. 11.07. That an applicant is not in the actual

physical custody of the government at the time of filing does not preclude his application nor

deprive the trial court of jurisdiction to consider it.12


       7
            Art. 11.07, § 3(c).
        8
            Ex parte Renier, 734 S.W.2d 349, 353 (Tex. Crim. App. 1987).
        9
            Id.
       10
         Acts of May 24, 1995, 74th Leg., R.S., ch. 319, § 5, sec. 3(c), 1995 Tex. Gen. Laws
2764, 2771 (eff. Sept. 1, 1995) (current version at TEX . CODE CRIM . PROC. art. 11.07, § 3(c)).
        11
             TEX . CODE. CRIM . PROC. art 11.07, § 3(c) (emphasis added).
        12
          See Ex parte Alba, 256 S.W.3d 682, 695-96 (Tex. Crim. App. 2008) (Price, J.,
dissenting) (concluding that, in light of the 1995 amendment, “[i]t is doubtful . . . that literal
                                                                              Harrington     Page 7

B.     Standard of Review

       The trial judge is the original factfinder in habeas corpus proceedings.13 Although this

Court is the ultimate factfinder, “in most circumstances, we will defer to and accept a trial

judge’s findings of fact and conclusions of law when they are supported by the record.” 14

We similarly defer to any implied findings and conclusions supported by the record.15


C.     Application

       The trial judge found that applicant suffers current and potential future consequences


confinement is even a prerequisite to post-conviction habeas relief under Article 11.07
anymore”); Ex parte Chi, 256 S.W.3d 702, 710 (Tex. Crim. App. 2008) (Price, J., dissenting)
(same); Lebo v. State, 90 S.W.3d 324, 327 n.8 (Tex. Crim. App. 2002) (citing the amendment,
noting that “the Legislature is [thus] well aware of the general use of the word ‘confinement’ and
perfectly capable of expanding that definition when it deems it appropriate.”); Ex parte Okere, 56
S.W.3d 846, 853 (Tex. App.—Fort Worth 2001, pet. ref’d) (holding that, due to the amendment,
“Ex parte Renier’s ‘in custody’ definition of ‘confinement’ is no longer viable, even for an
applicant seeking relief under article 11.07.”); State v. Collazo, 264 S.W.3d 121, 126-27 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) (“The terms ‘confinement’ and ‘restraint’ encompass
incarceration, release on bail or bond, release on community supervision or parole, or any other
restraint on personal liberty”); (applicant was “confined” because he was denied the opportunity
to obtain a Texas peace-officer license).
       13
           Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008); Ex parte Simpson, 136
S.W.3d 660, 668-69 (Tex. Crim. App. 2004) (the trial judge “is the collector of the evidence, the
organizer of the materials, the decisionmaker as to what live testimony may be necessary, the
factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters
specific findings of fact and conclusions of law, and may make a specific recommendation to
grant or deny relief. This Court then has the statutory duty to review the trial court’s factual
findings and legal conclusions to ensure that they are supported by the record and are in
accordance with the law. We are not the convicting trial court, and we are not the original
factfinders.”) (footnote omitted) (emphasis in original).
       14
         Ex parte Reed, 271 S.W.3d at 727; see also Ex parte Van Alstyne, 239 S.W.3d 815, 817
(Tex. Crim. App. 2007).
       15
            Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006).
                                                                              Harrington    Page 8

arising from his 2006 conviction, including the loss of his job and other suitable employment

opportunities; loss of his right to run for public office; loss of his right to possess firearms;

enhanced penalties for any future convictions; and potential impeachment of his credibility

in future judicial hearings. The record supports the trial judge’s findings concerning the

adverse consequences to applicant’s present and future employment opportunities. We agree

with the trial judge’s finding that applicant is “confined” for purposes of article 11.07.16

Therefore, this Court has jurisdiction to consider the merits of his claim.

                                     III. Involuntary Plea

       Applicant argues that his plea was involuntary because of unconstitutionally

ineffective assistance of counsel.17 He claims that, but for his attorney’s failure to investigate

the alleged prior convictions used to enhance the offense, he would not have pleaded guilty

to the felony charge.




       16
          An applicant seeking habeas relief should allege with specificity the facts establishing
his confinement–the details of his physical custody or the nature of collateral consequences he
suffers–lest his application be dismissed for lack of jurisdiction. See, e.g., Ex parte Wongjaroen,
No. 14-07-00593-CR, 2008 Tex. App. LEXIS 8319, *10-11 n.2 (Tex. App.—Houston [14th
Dist.] Nov. 6, 2008, pet. ref’d) (not designated for publication) (applicant provided no evidence
or supporting facts of the confinement alleged in her affidavit, thus the court was “unconvinced”
that her application was sufficient to invoke the jurisdiction of the trial court; nonetheless
addressing the merits in “an abundance of caution.”).
       17
         Rouse v. State, 300 S.W.3d 754, 762 n.17 (Tex. Crim. App. 2009) (a claim of
involuntary plea may be raised on habeas corpus, as the claim may be supported by information
from sources broader than the appellate record).
                                                                             Harrington   Page 9

A.     Law

       A defendant has a Sixth Amendment right to the effective assistance of counsel in

guilty-plea proceedings.18 To obtain habeas-corpus relief for ineffective assistance of

counsel under Strickland v. Washington, an applicant must show that his counsel’s

performance was unconstitutionally deficient and “that there is a ‘reasonable

probability’–one sufficient to undermine confidence in the result–that the outcome would

have been different but for his counsel’s deficient performance.” 19 Specifically, when a

person “challenges the validity of a plea entered upon the advice of counsel, contending that

his counsel was ineffective, ‘the voluntariness of the plea depends on (1) whether counsel’s

advice was within the range of competence demanded of attorneys in criminal cases and if

not, (2) whether there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty’” to the charged offense and would have insisted on going to trial.20

       A criminal-defense attorney “must have a firm command of the facts of the case”

before he or she may render reasonably effective assistance of counsel.21 Counsel has a duty

to provide advice to his client about what plea to enter, and that advice should be informed



       18
            Ex parte Reedy, 282 S.W.3d 492, 500-01 (Tex. Crim. App. 2009).
       19
        Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 694 (1984)).
       20
        Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (quoting Ex parte
Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)); Reedy, 282 S.W.3d at 500.
       21
            Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
                                                                            Harrington   Page 10

by an adequate investigation of the facts of the case 22 or be based on a reasonable decision

that investigation was unnecessary.23        When counsel’s representation falls below this

standard, it renders any resulting guilty plea involuntary.24

       A claim of ineffective assistance of counsel must be determined upon the particular

circumstances of each individual case.25         Strategic or tactical considerations are not

considered deficient “unless the challenged conduct was ‘so outrageous that no competent

attorney would have engaged in it.’” 26 But “[w]hen no reasonable trial strategy could justify

the trial counsel’s conduct, the counsel’s performance falls below an objective standard of

reasonableness as a matter of law.” 27 And although this Court “has been hesitant to

‘designate any error as per se ineffective assistance of counsel as a matter of law,’ it is

possible that a single egregious error of omission or commission by [applicant]’s counsel

constitutes ineffective assistance.”28 We have found, on some occasions, that counsel’s



       22
            Reedy, 282 S.W.3d at 500.
       23
            Goodspeed v. State, 187 S.W.3d 390, 392-93 (Tex. Crim. App. 2005).
       24
            Reedy, 282 S.W.3d at 500.
       25
            Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985).
       26
        Goodspeed, 187 S.W.3d 390, 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App 2001)).
       27
           Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App. 2003) (Price, J., dissenting)
(citing Strickland, 466 U.S. at 690).
       28
          Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (quoting Jackson v.
State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985)).
                                                                           Harrington     Page 11

failure to challenge a prior conviction improperly used to enhance a charge to be one such

error.29

B.         Application

           In this case, applicant told his appointed attorney that the 1986 conviction did not

belong to him. Nevertheless, counsel failed to conduct even a cursory investigation into the

alleged prior conviction, an allegation that enhanced the offense from a misdemeanor to a

felony. Then, without having researched the facts of his case, he advised his client to enter

a plea of guilty “because the District Attorney would just re-file the case.” Indeed he would;

but he would re-file it as a misdemeanor, not as a felony, and there is an enormous distinction

between the two. Because the record reveals no reasonable strategy in counsel’s failure to

investigate or in his advice to applicant to plead guilty to felony DWI, we conclude that

counsel’s conduct fell below the wide range of attorney competence as a matter of law.30

           Our next inquiry is whether applicant’s decision to plead guilty was a result of

counsel’s deficient performance. Applicant testified that his decision to plead guilty was




           29
           See Ex parte Felton, 815 S.W.2d 733, 735-36 (Tex. Crim. App. 1991) (failure to
challenge a void prior conviction used to enhance punishment rendered counsel ineffective); Ex
parte Scott, 581 S.W. 2d 181 (Tex. Crim. App. 1979) (ineffective assistance where counsel failed
to adequately investigate applicant’s prior conviction and failed to know the law to be applied to
that prior conviction).
           30
         Ex parte Felton, 815 S.W.2d at 735-36; see also Ex parte Langley, 833 S.W.2d 141,
143-44 (Tex. Crim. App. 1992) (counsel who failed to make even a cursory investigation into
whether prior “shock probation” conviction used for enhancement purpose was a “final” one
was constitutionally ineffective; relief granted).
                                                                              Harrington    Page 12

based entirely on his attorney’s advice that he do so. Moreover, the trial court made findings

favorable to applicant and recommended that his felony conviction be set aside. Based on

our review of the record and in light of the trial court’s express and implied findings,31 we

find that applicant has met his burden of showing a reasonable probability that, but for

counsel’s erroneous advice, he would not have entered a guilty plea. We thus agree with the

trial judge who found that applicant’s “plea was involuntarily made back on May 10, 2006.”

                                        IV. Conclusion

       Because the trial judge found that applicant suffers collateral consequences, applicant

has established that he is “confined” under article 11.07. Applicant’s guilty plea was the

result of ineffective assistance of counsel and was thus involuntary. Moreover, the parties

and the trial judge all agree that applicant was wrongly convicted of a felony DWI when he

should have been convicted of only a misdemeanor DWI. We therefore grant relief and

remand this case to the trial court for re-sentencing as a Class A misdemeanor.




Delivered: May 26, 2010

Publish




       31
           The trial judge also explicitly found “that there are not any other prior Driving While
Intoxicated convictions that are available for enhancement purposes. . . . So, therefore, the Court
finds, as a matter of law, that this is a wrongful felony conviction for Mr. Harrington, as a matter
of law.”
