
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00449-CR
NO. 03-10-00450-CR


Ex parte Tina Marie Mortland




FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NOS. CR-05-580-C & CR-05-581-C
HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Appellant Tina Marie Mortland was placed on community supervision after
she pleaded guilty to the offenses of fraudulently filing financing statements and retaliation.  In
each of the above causes, Mortland filed a pro se application for writ of habeas corpus pursuant
to article 11.072 of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann. art. 11.072
(West 2005).  The district court determined that Mortland was manifestly entitled to no relief and
entered an order denying the application as frivolous.  See id. art. 11.072 § 7.  This appeal followed.
We will affirm the orders.
		In her habeas applications, Mortland asserted that she was denied her
Sixth Amendment right to counsel at her initial hearing before the magistrate.  See Rothgery
v. Gillespie County, 554 U.S. 191, 199 (2008).  Mortland further claimed that she was denied her
Fifth Amendment right to due process.
		An appellate court reviewing a trial court's ruling on a habeas claim must review the
evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an
abuse of discretion.  Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Jessep,
281 S.W.3d 675, 678 (Tex. App.--Amarillo 2009, pet. ref'd).  A trial court abuses its discretion
when it acts without reference to any guiding rules or principles.  Jessep, 281 S.W.3d at 678. 
		Mortland's claim concerning her right to counsel is based on a misunderstanding
of the Supreme Court's holding in Rothgery.  In that case, the Supreme Court did not hold that a
defendant has a right to counsel at her initial appearance before a judicial officer.  Instead, the Court
held only that the Sixth Amendment right to counsel attaches at such an appearance and that
"counsel must be appointed within a reasonable time after attachment to allow for adequate
representation at any critical stage before trial, as well as at trial itself."  Rothgery, 554 U.S. at 212-13.  Mortland presented no evidence that she requested appointment of counsel, was indigent and
entitled to appointment of counsel, or that she was denied counsel during any critical stage of
the proceedings.  On this record, we cannot conclude that the district court abused its discretion in
finding this claim to be frivolous. (1)
		We similarly cannot conclude that the district court abused its discretion in finding
Mortland's due-process claim to be frivolous.  Mortland presented no evidence that her due-process
rights were violated, and this contention appears to be based on her previous argument that she was
denied her right to counsel at her initial appearance.  As we have already explained, on this record,
that argument is without merit.
		Finally, Mortland asserts for the first time on appeal that the district court "is and
will forever be" prejudiced against her.  The record does not support this claim.  To the extent that
Mortland raises other claims in her brief that were not raised in her habeas applications, they are
waived.  See Tex. R. App. P. 33.1.
		We affirm the orders denying habeas relief.


						__________________________________________
						Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed:   August 11, 2011
Do Not Publish
1.   Mortland characterizes the decision in Rothgery as "new evidence" and claims that she was
entitled to an evidentiary hearing on this claim.  No such entitlement exists.  See Ex parte Cummins,
169 S.W.3d 752, 757 (Tex. App.--Fort Worth 2005, no pet.).

