Affirmed and Memorandum Opinion filed May 24, 2018.




                                       In the

                    Fourteenth Court of Appeals

                              NO. 14-17-00260-CR

                  EX PARTE ANDRZEJ JOZEF ADAMSKI


                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1434082

                 MEMORANDUM OPINION


      Pursuant to a plea bargain with the State, appellant Andrzej Jozef Adamski
pleaded guilty to deadly conduct and received two years of deferred-adjudication
community supervision. Appellant filed a habeas application under article 11.072
of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 11.072
(West 2017). Appellant claimed that he received ineffective assistance from plea
counsel, rendering his plea involuntary. The trial court conducted a hearing and
denied appellant relief. We affirm.

                               I.     BACKGROUND
      In September 2014, appellant, a retired physician, was indicted for the felony
offense of aggravated assault with a deadly weapon, a firearm, alleged to have
occurred on July 5, 2014. In September 2015, pursuant to a plea bargain with the
State, appellant entered a plea of guilty to a misdemeanor charge of deadly conduct
and was placed on deferred-adjudication community supervision for two years.
Appellant subsequently filed a motion for new trial and for withdrawal of guilty plea,
which the trial court denied.

      In December 2015, appellant filed an application for writ of habeas corpus in
which he claimed that his plea counsel provided ineffective assistance of counsel
(IAC) because she failed to properly advise him about the consequences of his plea,
which rendered his guilty plea involuntary. Plea counsel filed an affidavit pursuant
to an order of the trial court. In September 2016, the trial court held an evidentiary
hearing. Appellant and his plea counsel testified at the hearing.

      In an order signed March 16, 2017, the trial court denied appellant’s writ of
habeas corpus. The order contains the following pertinent findings of fact:

      Alleged Ineffective Assistance of Trial Counsel
      10. The Applicant claims trial counsel was ineffective for . . . allowing
      the Applicant to plead guilty and suffer a future collateral consequence
      that he allegedly told counsel that he wanted to avoid . . . .
      11. The collateral consequences the Applicant claims he wanted to
      avoid were any negative impacts on his medical license.
      12. [Plea counsel] testified that she was aware the Applicant was a
      retired physician.
      13. [Plea counsel] testified that she advised the Applicant to speak to
      an attorney about how a plea could impact his medical license. She
      explained to the Applicant that she did not practice in that area and
      recommended he talk to someone before taking the plea.
      14. [Plea counsel] testified that she explained the consequences of trial
      and the consequences of the plea agreement to the Applicant.

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15. [Plea counsel] testified that the victim of the Aggravated Assault
was cooperating with the prosecution and willing to testify. [Plea
counsel] testified the State was not willing to entertain a Pre-Trial
Diversion or an Anger Management course in exchange for a dismissal,
particularly because there was also a child present during the
Aggravated Assault.
16. [Plea counsel] testified that she had the Applicant initial next to each
admonishment on his plea paperwork so that he was fully informed of
the consequences of his plea. [Plea counsel] identified the initials on
said paperwork.
17. [Plea counsel] testified that the Applicant was aware that entering
into the plea agreement could negatively impact his medical license.
Applicant Testimony
18. The Applicant testified that, in addition to being a licensed
physician in several states, he was a captain for Harris County Precinct
4. On cross examination, the Applicant refused to admit that his
commission had expired and that he was no longer a Texas peace
officer.
...
22. On cross examination, the Applicant refused to admit that his
medical license[s] in Oklahoma and New York were still showing as
“valid” as of September 12, 2016 despite his claim that the plea resulted
in his loss of medical license.
23. The Applicant admitted that he was in fact a retired physician and
not currently practicing medicine. Therefore, even if the plea had
resulted in the loss of his medical license, he would have suffered no
harm.
The order contains the following pertinent conclusions of law:

8. The Applicant has provided no evidence that trial counsel’s
representation fell below an objective standard of reasonableness. The
Applicant’s own initials and signature on the plea paperwork indicate
that he was informed of the consequences of his plea and made the plea
voluntarily.
9. The Applicant provided no evidence that but for trial counsel’s
alleged errors, the results of the pleading would have been different.

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      The plea was entered on the day of trial and, as [plea counsel]
      explained, the victim of the Aggravated Assault was willing to testify.
      [Plea counsel] testified that the State was not willing to entertain a Pre-
      Trial Diversion or an Anger Management course in exchange for a
      dismissal.
      10. The Applicant’s grounds are meritless. He has shown no negative
      impact as a result of his plea agreement. The Applicant’s hind-sighted
      regret of taking a plea does not render the plea involuntary in the
      absence of any deficient conduct by counsel.
      11. The Court concludes that trial counsel was not ineffective and the
      Applicant’s plea should not be withdrawn.

Appellant timely appealed.

                                 II.   ANALYSIS

A. Habeas corpus standards

      The writ of habeas corpus is “an extraordinary remedy” to be used when a
person is restrained in his liberty. Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim.
App. 2014). Article 11.072 of the Code of Criminal Procedure establishes the
procedures to apply for a writ of habeas corpus in a criminal case in which the
applicant was placed on community supervision. Tex. Code Crim. Proc. art. 11.072,
§ 1. Unless the trial court determines from the face of an application or documents
attached to an application that it must deny the application as frivolous, the court
must enter findings of fact and conclusions of law. Id. § 7(a).

      We review a ruling on an application for writ of habeas corpus for an abuse
of discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011). A
trial court abuses its discretion if its decision lies outside the zone of reasonable
disagreement. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston [14th
Dist.] 2009, pet. ref’d). An applicant seeking post-conviction habeas corpus relief
has the burden to establish by a preponderance of the evidence that the facts entitle


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him to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).

      This court must review the record “in the light most favorable to the trial
court’s ruling.” Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The
trial court is the sole finder of fact in a post-conviction application for writ of habeas
corpus filed under article 11.072. Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim.
App. 2016). As a result, appellate courts have “less leeway” to disregard the trial
court’s findings in the article 11.072 context. Ex parte Garcia, 353 S.W.3d at 788.
Reviewing courts defer to the trial court’s factual findings that are supported by the
record. See Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006).
We will uphold the trial court’s judgment as long as it is correct on any theory of
law applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App.
2001) (per curiam).

B. IAC

      A defendant has a constitutional right to effective assistance of counsel in plea
proceedings. Ex parte Reedy, 282 S.W.3d 492, 500–01 (Tex. Crim. App. 2009); see
also U.S. Const. amend. VI; Tex. Const. art. I, § 10. This right extends to the plea-
bargaining process. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991).

      A guilty plea resulting from IAC is not knowing and voluntary. Ex parte
Niswanger, 335 S.W.3d 611, 614–15 (Tex. Crim. App. 2011), abrogated in part on
other grounds by Cornwell v. State, 471 S.W.3d 458 (Tex. Crim. App. 2015). A
guilty plea that is not knowing and voluntary is invalid. See N. Carolina v. Alford,
400 U.S. 25, 31 (1970) (guilty plea is valid only if it “represents a voluntary and
intelligent choice among the courses of action open to the defendant”).

      When an applicant for habeas corpus relief challenges the validity of a plea
entered upon the advice of counsel and contends that his counsel was ineffective, he


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must show that: (1) counsel’s advice with respect to accepting a plea offer did not
fall within the range of competence demanded of attorneys in criminal cases, and (2)
but for the attorney’s errors or deficiencies, there is a reasonable probability the
applicant would not have pleaded guilty to the charged offense and would have
insisted on going to trial. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim.
App. 2010) (citing Ex parte Reedy, 282 S.W.3d at 500; Ex parte Moody, 991 S.W.2d
856, 857–58 (Tex. Crim. App. 1999)); see Hill v. Lockhart, 474 U.S. 52, 58–59
(1985); Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex Parte Torres, 483
S.W.3d at 47 (“This Court has regularly applied the Hill prejudice test in analogous
situations involving a post-conviction attack on the validity of a guilty plea based on
counsel’s alleged error in a plea proceeding.”). We consider the totality of the
circumstances in determining whether counsel was ineffective. Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

C. Appellant did not meet his burden to prove deficient performance.

      Appellant argues that the trial court erred in finding his guilty plea was
voluntary where his plea counsel did “not advise[] him that an order of nondisclosure
would not prevent licensing authorities from obtaining access to information
regarding his case” and “failed to fully advise him of the various possible
consequences of his plea or of possible alternative options.”

      As the reviewing court, we indulge a strong presumption that counsel’s
actions and decisions fell within the wide range of reasonable professional
assistance. Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005). To
overcome this presumption, any allegation of ineffectiveness must be firmly founded
in the record, and the record must affirmatively demonstrate the ineffectiveness. Ex
parte Wolf, 296 S.W.3d at 168–69. A habeas applicant has the burden to show by a
preponderance of the evidence that counsel’s performance fell below a reasonable

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standard of competence. See Ex parte Moody, 991 S.W.2d at 858.

       The burden lies with appellant to provide us with an appellate record sufficient
to resolve the issue he presents. See Guajardo v. State, 109 S.W.3d 456, 462 & n.17
(Tex. Crim. App. 2003). In his brief, appellant attempts to rely on excerpts of
testimony allegedly from the evidentiary hearing. Appellant also indicates that
affidavits from five criminal defense attorneys were “attached at the end of” the
reporter’s record, presumably admitted as evidence at the habeas hearing.1 The trial
court ordered the court reporter to prepare and file the reporter’s record at no cost to
appellant. No reporter’s record was filed. After this court ordered that the reporter’s
record be filed, the court reporter filed an information sheet expressly stating that
there was no reporter’s record. The record on appeal contains no transcription of the
September 12, 2016 habeas hearing. Appellant has not attempted to supplement the
record with any such reporter’s record. Excerpts from an alleged reporter’s record
included within a brief are not part of the record and will not be considered by this
court. See Raspberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976).

       Here, the trial court found plea counsel testified she recommended to appellant
that he speak to another attorney about how a guilty plea could impact his medical
license before taking the plea because she did not practice in that area. The trial
court found that plea counsel testified the State was not willing to entertain pretrial
diversion or an anger-management course in exchange for a dismissal, particularly
because there was a child present during the aggravated assault.2 In addition, the
trial court found plea counsel testified appellant was aware that entering into the plea

       1
         Only four affidavits from criminal defense attorneys appear in the clerk’s record.
Appellant states that the affidavits say the attorneys would have talked to their client about the
nondisclosure exceptions, but does not otherwise differentiate among the affidavits.
       2
         There is no dispute that appellant’s then eight-year-old daughter was a passenger in his
car during the incident in question.

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agreement could negatively impact his medical license. The trial court concluded
that appellant provided no evidence that plea counsel’s representation fell below an
objective standard of reasonableness.

       Even assuming solely for purposes of our analysis that the referenced excerpts
were part of the record and accurately reflected testimony from the hearing, appellant
has not presented sufficient evidence to satisfy Strickland’s deficient-performance
prong. We conclude that the trial court did not abuse its discretion by denying
appellant’s habeas application.

       1. Ex parte Wolf is distinguishable.

       Appellant relies on Ex parte Wolf. The defendant in Ex parte Wolf was a
junior in college when he was charged with theft of clothing valued between $500
and $1,000. 296 S.W.3d at 162. Wolf told his lawyer he wanted to have a “clear
record” so he could work in the financial services industry after graduation. Id. at
163.   The lawyer gave Wolf two options: plead guilty and accept deferred-
adjudication community supervision, or plead not guilty and go to trial. Id. The
lawyer told Wolf, if he successfully completed his community supervision, his
record could be sealed. Id. The lawyer did not tell him, however, that the licensing
agency for the financial industry would have access to Wolf’s sealed record. Id. at
163–64. The lawyer also did not present other options besides pleading guilty or not
guilty, including pretrial diversion and a “Class C special expense,” which would
allow Wolf’s record to be expunged if he satisfied certain requirements. Id. at 162
n.1, 164. Wolf pleaded guilty. The trial court deferred adjudication, placed Wolf
on community supervision, and signed an order for nondisclosure after Wolf
successfully completed his community supervision. Id. at 162. Wolf later worked
in the financial services sector as a custody-fund accountant.         His employer
discovered Wolf’s arrest and fired him based on the arrest. Id.

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      Wolf applied for a writ of habeas corpus alleging his guilty plea was
involuntary because it resulted from IAC. Id. His plea counsel testified at the habeas
hearing that he did not apply for pretrial diversion for Wolf because he did not
believe Wolf would get pretrial diversion. Id. at 163. Counsel believed he asked the
prosecutor for a Class C special expense, but he did not give the prosecutor any
information in support of his request. Id.

      Wolf submitted affidavits from nine criminal defense lawyers, each of whom
testified about his or her success in obtaining pretrial diversion or a Class C special
expense for defendants similar to Wolf (e.g., high school and college students with
professional aspirations, people in their 20s with no criminal records). See id. at
164. Seven of the lawyers believed a reasonably competent criminal defense lawyer
in the county in which Wolf was charged would try to obtain pretrial diversion or a
Class C special expense for a first offender charged with misdemeanor theft; two
lawyers stated there was a reasonable possibility that Wolf would have been eligible
for expunction of his record. See id. at 164–65. The habeas court granted Wolf’s
application for writ of habeas corpus, and we affirmed. Id. at 165, 171.

      Ex parte Wolf, however, is distinguishable in two key respects. First, unlike
here, the applicant in Ex parte Wolf submitted evidence supporting his position that
his plea counsel’s actions and advice fell below the prevailing professional norms
for representation of a defendant like him. See id. at 164. Second, again unlike here,
the trial court in Ex parte Wolf granted the application for writ of habeas corpus after
finding Wolf’s plea counsel provided IAC. We therefore reviewed the record in the
light most favorable to that ruling. See id. at 166 (citing Kniatt, 206 S.W.3d at 664).
In appellant’s case, we must review the record in the light most favorable to the trial
court’s denial of habeas relief. See Kniatt, 206 S.W.3d at 664.

      2. Plea counsel’s advice regarding appellant’s medical license

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       Appellant argues that “[b]eing unqualified to represent appellant on the
license issue is not the same thing as informing him that a nondisclosure order would
expose him to possible action by the Board in the future,” which is “part of
competent advice on the potential consequences of his plea.” In other words,
appellant faults plea counsel for referring him to outside counsel rather than advising
him herself on the plea’s potential future effects on his medical license.3

       Appellant’s assertion appears to be contrary to the disciplinary rules
governing lawyers in Texas. That is, “a lawyer shall not accept or continue
employment in a legal matter which the lawyer knows or should know is beyond the
lawyer’s competence” unless another lawyer who is competent to handle the matter
is, with the client’s consent, associated in the matter. See Tex. Disciplinary Rules
Prof’l Conduct R. 1.01(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app.
A (West 2013). Here, after appellant received a letter of inquiry related to his
criminal charge from one medical licensing board, plea counsel advised appellant to
seek outside counsel regarding his license because that was not her practice area.
See Harris v. State, 402 S.W.3d 758, 760–61 & n.2 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (matters involving disclosure and nondisclosure of criminal history
record information under Texas Government Code are treated as civil, not criminal).

       Appellant has not cited, nor have we have found, any authority suggesting
plea counsel’s advice that appellant refer his medical licensing questions to another
attorney falls below prevailing professional norms for criminal defense attorneys.
Although appellant presented affidavits by criminal defense attorneys stating that

       3
          In an unpublished opinion, our court refused to find deficient performance in the context
of a deferred-adjudication community-supervision plea bargain where plea counsel advised his
client that he was not an expert in matters relating to the Board of Realtors and that she should
seek outside counsel to advise her regarding her real estate license. See Ex parte White, No. 14-
16-00278-CR, 2017 WL 455750, at *3, 6 (Tex. App.—Houston [14th Dist.] Feb. 2, 2017, pet.
ref’d) (mem. op., not designated for publication).

                                                10
they advise their clients about the availability of nondisclosure and explain that
certain entities are exempt and can still access criminal records, none of the affidavits
indicates referring clients out for advice on professional licensing issues falls outside
the wide range of reasonable professional assistance. We conclude that appellant
has not overcome the strong presumption of competence and has not shown deficient
performance with regard to plea counsel’s advice regarding potential negative
impact on appellant’s medical license. See Ex parte Chandler, 182 S.W.3d at 354.

      3. Plea counsel’s actions regarding possible alternative options
      We also conclude that appellant has not shown deficient performance with
regard to plea counsel’s actions in connection with pursuing possible alternative
options to the deferred-adjudication community-supervision plea bargain. The trial
court found that plea counsel testified the State was not willing to entertain pretrial
diversion or an anger-management course in exchange for a dismissal because there
was a child present during the aggravated assault. This finding is consistent with
plea counsel’s affidavit, which stated that she asked the State about pretrial diversion
for appellant but the State refused to offer it because of the nature of the offense.

      Appellant nevertheless contends that plea counsel should have continued to
pursue such alternatives by going up “the chain of command” to a supervising
prosecutor. Again, appellant has not provided, and we have not located, any
authority that suggests failing to do so falls below prevailing professional norms for
criminal defense attorneys. No criminal defense attorney in his or her affidavit states
that he or she successfully obtained pretrial diversion or dismissal in exchange for
anger-management classes for other clients in circumstances analogous to
appellant’s. Cf. Ex parte Wolf, 296 S.W.3d at 164. The attorney affidavits do not
state that reasonably competent counsel would have continued to pursue, or
otherwise would have been successful in, such efforts. Cf. id. at 164–65. We

                                           11
conclude that appellant has failed to overcome the strong presumption of
competence and has not shown deficient performance with regard to plea counsel’s
actions regarding alternative options to the proposed plea agreement. See Ex parte
Chandler, 182 S.W.3d at 354.

      Because appellant did not prove plea counsel’s performance was deficient, we
do not address whether he demonstrated prejudice. See Strickland, 466 U.S. at 700.
Appellant has not shown that the trial court abused its discretion in denying his
habeas application. See Ex parte Garcia, 353 S.W.3d at 787.

                             III.   CONCLUSION

      Accordingly, we overrule appellant’s sole issue and affirm the trial court’s
judgment.

                                     /s/    Marc W. Brown
                                            Justice



Panel consists of Justices Boyce, Jamison, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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