                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-18-00118-CR


EX PARTE
KEMONE DUANE RODGERS

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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
              TRIAL COURT NO. C-297-W011201-1488359-AP

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                         MEMORANDUM OPINION 1

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      Appellant Kemone Duane Rodgers appeals the trial judge’s denial of relief

on his application for a writ of habeas corpus under article 11.072 of the Texas

Code of Criminal Procedure. 2 See Tex. Code Crim. Proc. Ann. art. 11.072 (West

2015). Appellant contends that his guilty plea was not knowing, intelligent, and


      1
       See Tex. R. App. P. 47.4.
      2
        The same trial judge who placed Appellant on deferred adjudication
community supervision denied his requested relief under article 11.072. For
simplicity’s sake, we use the term “trial judge” rather than “habeas judge” to refer
to that judge throughout this opinion.
voluntary because of ineffective assistance of trial counsel, and he seeks to

withdraw that plea as well as to recover court costs, see id. art. 11.50, and any

other relief to which he may be entitled. We affirm.

                         I.     BACKGROUND FACTS

A.    Appellant Pled Guilty in Exchange for Deferred Adjudication
      Community Supervision.

      On May 12, 2017, Appellant pled guilty to the possession of less than a

gram of the penalty group I controlled substance cocaine in exchange for two

years’ deferred adjudication community supervision and a $200 fine. His plea

paperwork provides in part:

      10.   Deferred Adjudication: Should the Court defer adjudicating
               your guilt and place you on community supervision, upon
               violation of any imposed condition, you may be arrested
               and detained as provided by the law. You will then be
               entitled to a hearing limited to the determination by the
               Court, without a jury, whether to proceed with an
               adjudication of your guilt upon the original charge. This
               determination is reviewable in the same manner as a
               revocation hearing in a case in which an adjudication of
               guilt had not been deferred. Upon adjudication of your
               guilt, the Court may assess your punishment anywhere
               within the range provided by law for this offense. After
               adjudication of guilt, all proceedings including assessment
               of punishment, pronouncement of sentence, granting of
               community supervision and your right to appeal continue
               as if adjudication of guilt had not been deferred.
               ....
               Upon receiving discharge and dismissal of deferred
               adjudication community supervision under Sec. 5(c),
               Art.[ ]42.12, TEX. CODE OF CRIMINAL PROCEDURE, and
               unless you are ineligible because of the nature of the
               offense for which you are placed on deferred adjudication
               community supervision, or because of your criminal history,

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                you may have a right to petition the Court for an order of
                nondisclosure under Section 411.081, TEX. GOVERNMENT
                CODE.       (initials).
      11. Community Supervision: If the Court grants you community
             supervision as opposed to deferred adjudication, upon
             violation of any imposed condition, you may be arrested
             and detained as provided by law. You will then be entitled
             to a hearing limited to the determination by the court,
             without a jury, whether to revoke your community
             supervision and sentence you to confinement for a period
             of time not to exceed that originally assessed by the Court
             at the time you were found guilty.       (initials).
Appellant’s handwritten initials appear in both blanks in the above portion of the

plea paperwork.

      Appellant’s plea paperwork also includes a list of waivers:

       WRITTEN WAIVERS OF DEFENDANT–JOINED BY ATTORNEY

      Comes now the Defendant, in open Court, joined by my attorney and
      states:
      (A)    I am able to read the English language. I fully understand
             each of the above written plea admonishments given by the
             Court and I have no questions. . . .
      ....
      (C)    I am aware of the consequences of my plea;
      (D)    I am mentally competent and my plea is knowingly, freely, and
             voluntarily entered. No one has threatened, coerced, forced,
             persuaded or promised me anything in exchange for my plea;
      ....

      (J)    I am totally satisfied with the representation given to me by my
             attorney.     My attorney provided me fully effective and
             competent representation;
      ....




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      (P)    I give up and waive the attendance and record of a court
             reporter under Rule 13.1, TEXAS RULES OF APPELLATE
             PROCEDURE; [and]
      ....
      (S)    I request that the Court approve the plea recommendation set
             out above, and dispose of my case in accordance therewith.
      ....

                                             _____________
                                             DEFENDANT

Appellant’s signature fills the blank labelled “DEFENDANT” at the bottom of the

list of waivers. Under his signature appears the following:

             I have fully reviewed and explained the above and foregoing
      court admonishments, rights, and waivers, as well as the following
      judicial confession to the Defendant. I am satisfied that the
      Defendant is legally competent and has intelligently, knowingly, and
      voluntarily waived his rights and will enter a guilty plea
      understanding the consequences thereof. . . .


                                      ATTORNEY FOR DEFENDANT

Appellant’s trial counsel signed the blank indicated.

      Appellant’s sworn judicial confession, in which he confesses his guilt to the

charged offense, and his sworn application for community supervision follow the

waivers section of the paperwork.

B.    The Trial Judge Followed the Plea Bargain.

      The trial judge honored the agreement, placing Appellant on deferred

adjudication community supervision for two years and setting community

supervision conditions.    In addition to the plea paperwork described above,



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Appellant signed an “Agreement to Return [and] Waiver of Extradition.” In that

document, he agreed to, among other things, “comply with the conditions of

community supervision.”       Appellant also signed a copy of his “Conditions of

Community Supervision” and the trial judge’s certification of his right to appeal.

C.    Appellant Complained About the Bargain on the Day He Made it.

      After the hearing on the plea bargain but on the same day, Appellant wrote

a letter to the trial judge, claiming that

      •      His attorney told him before he agreed to the bargain that he would
             “not have to do community supervision probation”;

      •      The community supervision conditions were not mentioned during
             the plea hearing;

      •      After the hearing, he “was rushed to sign and fingerprint multiple
             sheets of paper without having an appropriate amount of time to
             thoroughly review each document”;

      •      A “courtroom official” printed out the community supervision
             conditions and told him that he had to “go speak with a [community
             supervision] officer only one time . . . and that was it”;

      •      The same official told him that deferred adjudication is the same as
             “community supervision probation”;

      •      At around 12:45 p.m., Appellant “noticed a lot of additional
             punishments, requirements[,] and fees involving the community
             supervision probation that were not mentioned in the court hearing
             and were not a part of the agreement”;

      •      Appellant called his trial counsel and told him that he had not agreed
             to the extra conditions not discussed in the hearing;

      •      Appellant’s trial counsel said he would file a motion to modify the
             following week;




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        •       “The court[] imposed a punishment significantly greater and
                different[] than the plea agreement [provided] at the time it was
                entered”;

        •       The court “mistakenly imposed 2 year[s’] community supervision
                probation in exchange for confinement time”;

        •       “That was not a part of the agreement . . . , because [he] was
                confined for a long enough amount of time for some to be given time
                served, at the judge’s discretion”; and

        •       Appellant wanted the trial court to modify the plea bargain.

D.      About Seven Months After the Trial Judge Placed Him on Deferred
        Adjudication Community Supervision, Appellant Filed an Application
        for Writ of Habeas Corpus, and the State Filed a Response.

        In his application for writ of habeas corpus filed in the trial court, Appellant

contends that his guilty plea was not knowing, intelligent, or voluntary and that he

was denied effective assistance of counsel. Specifically, Appellant complains

that in describing the plea offer, his trial counsel told him that the prosecutor was

not recommending community supervision and advised him to “go ahead and

sign the papers.” Appellant argues that (1) his trial counsel committed ineffective

assistance of counsel by not explaining to him that deferred adjudication is a type

of community supervision and (2) if he had known that deferred adjudication was

a type of community supervision and that he would have to comply with

community supervision conditions other than paying his fine and committing no

other crimes, he would not have pled guilty but would have instead pled not guilty

and gone to trial. Appellant seeks court costs and the withdrawal of his guilty

plea.       As support, Appellant attaches his own affidavit and a copy of the



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conditions of community supervision, and he refers to the indictment, the plea

paperwork, the letter he wrote the trial judge on May 12, 2017, and an email

including a slightly different version of that letter.

       The State filed a response to Appellant’s application, arguing that

Appellant’s claim should be denied because he had failed to prove that his plea

was involuntary due to ineffective assistance of trial counsel. In support of its

contention, the State points to the various, relevant portions of the plea

paperwork that Appellant had initialed or signed, proof that he had received a

copy of the conditions of community supervision on the day of his plea, and his

signed waiver of extradition.

E.     The Trial Judge Denied Habeas Relief.

       The trial judge denied Appellant’s requested relief, adopting the findings of

fact and conclusions of law proposed by the State:

                                 FINDINGS OF FACT

       1.     Applicant was charged with the state jail felony offense of
              Possession of a Controlled Substance.
       2.     Applicant filed      an    application     requesting   community
              supervision.
       3.     According to Applicant, his plea counsel advised him to sign
              the documents necessary to receive community supervision.
       4.     Applicant pleaded guilty to the state jail felony Possession
              of a Controlled Substance.
       5.     When Applicant pleaded guilty, he was admonished in writing
              in accordance with art. 26.13.
       6.     Applicant’s   admonishments        include    two   signatures   by
              Applicant.


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7.    Applicant initialed paragraph 10 of the admonishments which
      explained that “should the court defer adjudicating [his] guilt
      and place [him] on community supervision, upon violation of
      any imposed condition, [he] may be arrested and detained as
      provided by law.”
8.    Applicant received the conditions of community supervision in
      open court on May 12, 2017.
9.    In his waiver, Applicant signed that he understood the
      admonishments; he was aware of the entire range of
      punishment; and that he was pleading freely, knowingly, and
      voluntarily.
10.   Applicant signed an Agreement to Return Waiver of
      Extradition, in which he agreed to comply with the conditions
      of community supervision including a requirement that he stay
      in Tarrant [C]ounty unless given permission to leave by his
      Community Supervision Officer, and in which he waived
      extradition from any jurisdiction in the case that he violates
      any of the terms of community supervision.
11.   Applicant received community supervision in accordance with
      his request.
                    CONCLUSIONS OF LAW
1.    In a habeas corpus proceeding, the burden of proof is on
      the applicant. An applicant must prove by a preponderance
      of the evidence that the error contributed to his conviction or
      punishment.
2.    In order to prevail, the applicant must present facts that, if
      true, would entitle him to the relief requested. Relief may be
      denied if the applicant states only conclusions, and not
      specific facts. In addition, an applicant’s sworn allegations
      alone are not sufficient to prove his claims.
3.    There is a presumption of regularity with respect to guilty
      pleas under Texas Code of Criminal Procedure art. 1.15.
4.    Before accepting a guilty plea, the court must admonish the
      defendant as to the consequences of his plea, including
      determining whether the plea is freely, voluntarily, and
      knowingly given.



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      5.    Applicant was properly admonished in accordance with Tex.
            Code Crim. Proc. Art. 26.13.
      6.    When a defendant complains that his plea was not voluntary
            due to ineffective assistance of counsel, 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
            and would have insisted on going to trial.
      7.    Counsel’s advice was consistent with Applicant’s desire for
            community supervision.
      8.    Applicant has failed to prove that Counsel’s advice was not
            within the range of competence demanded of attorneys in
            criminal cases.
      9.    Counsel’s advice was within the range of competence
            demanded of attorneys in criminal cases.
      10.   Applicant has failed to prove that but for counsel’s errors, he
            would not have pleaded guilty and would have insisted on
            going to trial.
      11.   Applicant has not overcome the presumption that his plea
            was regular.
      12.   Applicant has failed to prove that his plea was not voluntary
            due to ineffective assistance of counsel.
      13.   Applicant’s plea was regular.
      14.   Applicant’s plea was voluntary.
[Citations and selected internal quotation marks omitted.]

                               II.   DISCUSSION

A.    We Review the Trial Judge’s Denial of Habeas Relief for an Abuse of
      Discretion.

      We generally review the denial of relief under article 11.072 for an abuse

of discretion. See Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth



                                        9
2011, pet. ref’d). “We review the evidence in the light most favorable to the

habeas court’s ruling” and “afford great deference to the habeas court’s findings

of facts and conclusions of law that are supported by the record.” Id. This

deferential review applies even when, as here, the findings of fact are based on

the record and an affidavit rather than on live testimony.       See id.; see also

Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006); Ex parte

Tamayo, No. 02-17-00135-CR, 2017 WL 6047731, at *4–5 (Tex. App.—Fort

Worth Dec. 7, 2017, no pet.) (mem. op., not designated for publication).

B.    The Trial Judge Did Not Abuse Its Discretion by Finding that
      Appellant’s Guilty Plea was Made Knowingly and Voluntarily.

      An applicant seeking habeas relief under article 11.072 based on

ineffective assistance of trial counsel has the burden of proving that

ineffectiveness by a preponderance of the evidence.              Ex parte Torres,

483 S.W.3d 35, 43 (Tex. Crim. App. 2016). To prove ineffective assistance, the

applicant must demonstrate that (1) trial counsel’s representation fell below an

objective standard of reasonableness and (2) but for counsel’s deficiency, “there

is a reasonable probability of a different outcome.”       Id.   An applicant like

Appellant who collaterally challenges his guilty plea satisfies the prejudice prong

by showing that “but for counsel’s errors, he would not have ple[d] guilty and

would have insisted on going to trial.” Id. (quoting Hill v. Lockhart, 474 U.S. 52,

59, 106 S. Ct. 366, 370 (1985)).




                                        10
          When the record shows that an applicant was properly admonished, it

presents prima facie evidence that his guilty plea was knowingly and voluntarily

made. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Ex parte

Colson, No. 07-16-00447-CR, 2017 WL 4341449, at *3 (Tex. App.—Amarillo

Sept. 29, 2017, no pet.) (mem. op., not designated for publication). An applicant

may overcome this prima facie evidence by demonstrating that he did not fully

understand the effects of his guilty plea and was therefore harmed. Martinez,

981 S.W.2d at 197; Colson, 2017 WL 4341449, at *3.           But an applicant’s

uncorroborated testimony that counsel gave him misinformation or bad advice is

insufficient to meet this burden. Colson, 2017 WL 4341449, at *3; Arreola v.

State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see

Crumpton v. State, 179 S.W.3d 722, 724 (Tex. App.—Fort Worth 2005, pet.

ref’d).

          Here, Appellant was admonished in writing in accordance with article

26.13. See Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2017). Nothing

in the plea paperwork indicates that trial counsel did not explain deferred

adjudication community supervision to Appellant or that he did not fully

understand the requirements thereof, and Appellant affirmatively requested

community supervision and swore that he understood the admonishments and

the range of punishment and that his guilty plea was intelligent, knowing, and

voluntary. Appellant points only to his own words, whether by letter to the trial

judge or affidavit attached to his application, as evidence that he did not fully


                                        11
understand the consequences of his plea. Those uncorroborated words are not

enough for this court to override the trial judge’s credibility determinations. See

Colson, 2017 WL 4341449, at *3; Arreola, 207 S.W.3d at 391; Crumpton,

179 S.W.3d at 724. We therefore hold that the trial judge did not abuse his

discretion by (1) rejecting Appellant’s contention that his guilty plea was not

intelligently, knowingly, and voluntarily made and (2) denying his requested relief.

                               III.   CONCLUSION

      Having held that the trial judge did not abuse his discretion by denying

Appellant’s requested habeas relief under article 11.072, we affirm the trial

court’s order.



                                                   /s/ Mark T. Pittman
                                                   MARK T. PITTMAN
                                                   JUSTICE

PANEL: MEIER, GABRIEL, and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 7, 2018




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