Opinion filed June 28, 2018




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-18-00018-CR
                                  __________

                  EX PARTE TIMOTHY PATRICK LEE


                         On Appeal from the County Court
                              Gaines County, Texas
                           Trial Court Cause No. 18,832


                      MEMORANDUM OPINION
      Timothy Patrick Lee, pro se, appeals from the denial of his application for
writ of habeas corpus. We affirm.
      Lee seeks relief from a 2014 judgment of conviction for the Class B
misdemeanor offense of driving while intoxicated. Lee pleaded guilty to the offense,
and the trial court assessed Lee’s punishment in accordance with the terms of his
plea agreement at 100 days in the county jail. Lee filed an application for writ of
habeas corpus in which he sought relief pursuant to “Article 11.09.” See TEX. CODE
CRIM. PROC. ANN. art. 11.09 (West 2005); see also Ex parte Schmidt, 109 S.W.3d
480, 481 (Tex. Crim. App. 2003) (holding that Article 11.09 does not limit county
court’s jurisdiction to misdemeanor cases in which the applicant is confined). Lee
asserted seven grounds in his application: (1) that he was not operating a motor
vehicle in a public place while he was intoxicated; (2) that no field sobriety tests
were administered; (3) that his blood was drawn illegally; (4) that his plea was
entered unknowingly and involuntarily, in part because his “attorney at the time was
not a licensed attorney”; (5) that he is restrained by collateral consequences of the
conviction; (6) that he received ineffective assistance of counsel; and (7) that the
implied consent statute did not apply. Lee did not attach any documents to his
application, nor did he specify any particular conduct that would indicate his
attorney’s performance was deficient.
      The State did not file a response to Lee’s application, and the trial court did
not conduct a hearing on the matter. Instead, the trial court entered an order denying
the habeas corpus relief sought by Lee. In its order, the trial court stated in part:
      The Court would refer the Defendant to the Court’s response to the
      Defendant’s Request for Discovery, that on review of the Defendant’s
      file, the Court took judicial note of the Defendant’s motions and the
      other records on file. The Court noted that the Defendant was
      represented by a Texas Tech law student, who was under the
      supervision of a member of the Texas Tech Law School faculty. The
      Court noted that the Defendant initialed the relevant paragraphs of the
      Guilty Plea Affidavit; at the time he stated he was totally satisfied with
      his attorney, he waived the pre-sentence investigation and report, he
      initialed the Judicial Confession, thereby confirming he was guilty of
      the charges against him, he waived all other rights recognized under the
      law, including his right of appeal. The Defendant signed the Guilty
      Plea Affidavit, and the page bears his thumb print. The Court notes that
      the Guilty Plea Affidavit was also signed by both the law student and
      the supervising faculty. The Court finds that the punishment assessed
      falls with the sentencing guidelines of the State of Texas for a Class B
      Misdemeanor. . . .
            Consequently, the Petition for Writ of Habeas Corpus . . . is
      hereby DENIED.

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Although the trial court did not hold a hearing, it appears from the language of the
order that the trial court ruled on the merits of Lee’s claims. See Ex parte Hargett,
819 S.W.2d 866, 868–69 (Tex. Crim. App. 1991), superseded in part by statute,
CRIM. PROC. art. 11.072, §§ 4, 8, as recognized in Ex parte Villanueva, 252 S.W.3d
391, 397 (Tex. Crim. App. 2008) (addressing jurisdiction of court of appeals). Of
particular note is the trial court’s statement—in direct response to Lee’s fourth
ground for relief—about who represented Lee in the underlying DWI case. Also of
note is the trial court’s indication that it had reviewed the records on file.
      On appeal, Lee makes arguments similar to the complaints that he presented
in his application. To prevail on a writ of habeas corpus, the applicant must prove
his allegations by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657,
664 (Tex. Crim. App. 2006); Ex parte Adams, 768 S.W.2d 281, 287–88 (Tex. Crim.
App. 1989). We review a trial court’s ruling on an application for a writ of habeas
corpus under an abuse-of-discretion standard. Kniatt, 206 S.W.3d at 664. In
conducting our review, we accord great deference to the trial court’s findings. Ex
parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). Furthermore,
habeas corpus may not be used to bring claims that could have been brought on direct
appeal. Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004).
      Article 11.09 does not require that a trial court conduct a hearing or make
written findings of fact and conclusions of law when ruling on an application for
writ of habeas corpus brought under that section. Ex parte Oliver, No. 05-09-00611-
CR, 2009 WL 3210710, at *2 (Tex. App.—Dallas Sept. 21, 2009, pet. ref’d) (not
designated for publication). The trial court indicated that it had reviewed the record
prior to ruling on Lee’s application. We have also reviewed the record, including
the guilty plea affidavit signed by Lee, the trial judge, and all counsel. The guilty
plea affidavit contains various admonishments and waivers. Nothing before this


                                            3
court suggests that Lee met his burden to show that he is entitled to habeas corpus
relief. See id. at *3.
        In light of the record before us, we cannot conclude that the trial court erred
when it denied the relief sought by Lee in his application for writ of habeas corpus.
We have considered all of the complaints raised by Lee in this appeal, and we
overrule each of them.
        Accordingly, we affirm the order of the trial court.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


June 28, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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