                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 '
                                                                 No. 08-11-00245-CR
                                                 '
                                                                    Appeal from the
                                                 '
 EX PARTE CHESTER MILLER.                                 County Court at Law Number Two
                                                 '
                                                               of El Paso County, Texas
                                                 '

                                                 '               (TC# 20080C06704)

                                          OPINION

       Appellant appeals the trial court’s denial of his second application for writ of habeas

corpus. We affirm the trial court’s order denying habeas corpus relief.

                                        BACKGROUND

       By information, Appellant was charged with family-violence assault to which he pleaded

guilty and was sentenced on June 27, 2008, to confinement in the El Paso County Jail for 90 days.

TEX. PENAL CODE ANN. § 22.01 (West 2011). Appellant filed his second application for writ

of habeas corpus wherein he complained that the trial court was without jurisdiction to convict him

upon an allegedly-defective information and that his trial counsel was ineffective for allegedly

failing to discover the purported defect in the charging instrument.

       In his application, Appellant specifically complained that the information was defective

because the signature on the jurat is composed of initials rather than the full signature of the

Assistant District Attorney whose name is printed on the information. Appellant also asserted

that his trial counsel rendered ineffective assistance of counsel through his failure to examine and

object to the charging instrument. In its answer, the State argued that: (1) Appellant waived any
objection to the charging instrument by failing to present the objection to the trial court prior to

trial; (2) the information and complaint were valid; and (3) trial counsel could not have been

ineffective for failing to lodge frivolous objections to the complaint and information.

       The trial court entered findings of fact, which included findings that: (1) after his

warrantless arrest, Appellant had been taken before a magistrate in compliance with Texas Code of

Criminal Procedure article 14.06; (2) Officer Adams had presented a complaint affidavit that was

sworn and subscribed to before an assistant district attorney, in compliance with Texas Code of

Criminal Procedure article 21.22; and (3) the assistant district attorney presented the trial court

with the information filed in the case. TEX. CODE CRIM. PROC. ANN. art. 14.06 (West 2005)

and arts. 21.21, 21.22 (West 2009). In its conclusions of law, the trial court determined that: (1)

the complaint affidavit and information were proper, were not defective, and complied with the

law and the Code of Criminal Procedure; (2) the filing of the information vested the trial court with

jurisdiction over Appellant and the offense; (3) defense counsel could not be ineffective for failing

to file a motion to quash the information because the information was not defective; (4) defense

counsel would not have been required to file a meritless objection to the information; and (5)

Appellant’s allegations about the complaint and information were without merit. TEX. CODE

CRIM. PROC. ANN. arts. 21.21, 21.22 (West 2009). Noting that it was addressing Appellant’s

second application for writ of habeas corpus, the trial court denied the writ.

                                          DISCUSSION

                                        Standard of Review

       When reviewing a trial court’s decision to grant or deny writ of habeas corpus relief, we

review the facts in the light most favorable to the trial court’s ruling and we uphold the ruling


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absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003),

overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007). We

afford almost total deference to a trial court’s determination of the historical facts supported by the

record, especially when its fact findings are based upon an evaluation of credibility and demeanor.

Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App. 1999). We afford the same amount of

deference to the trial court’s application of the law to the facts if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at

819. However, we review de novo those mixed questions of law and fact that do not depend upon

credibility and demeanor. Id.

                                               Analysis

       Habeas corpus is available for the sole purpose of reviewing jurisdictional defects or

denials of fundamental or constitutional rights. See Ex parte Watson, 601 S.W.2d 350, 352

(Tex.Crim.App. 1980); Ex parte Shields, 550 S.W.2d 670, 675 (Tex.Crim.App. 1977) (opinion on

reh’g). In his first issue, Appellant asserts that the trial court lacked subject-matter jurisdiction

because the information contained an allegedly invalid jurat. However, if a defendant fails to

object to a defect, error, or irregularity of form or substance in an information before the date on

which the trial on the merits commences, he waives the right to object and is prohibited from

raising an objection to such defect on appeal or in any post-conviction proceeding. TEX. CODE

CRIM. PROC. ANN. art. 1.14(b) (West 2005).                Additionally, the test for constitutional

sufficiency of a particular charging instrument is whether the court and the defendant are able to

determine from the face of the charging instrument, despite its substantive defects, that the

charging instrument intends to charge an offense for which the court has jurisdiction. Teal v.


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State, 230 S.W.3d 172, 182 (Tex.Crim.App. 2007).

       We find no evidence in the appellate record showing that Appellant presented any

objection regarding the alleged defect in the information prior to the commencement of trial. We

therefore conclude that Appellant has waived the defective-information issue for the trial court’s

consideration in his post-conviction habeas corpus proceedings. TEX. CODE CRIM. PROC.

ANN. art. 1.14(b) (West 2005). Because Appellant waived his complaint, the trial court’s denial

of Appellant’s application for writ of habeas corpus upon the basis of the allegedly-defective

indictment was not error.

       The trial court found that the information was proper, complied with the Texas Code of

Criminal Procedure, and was not defective, and vested the trial court with jurisdiction over

Appellant and the charged offense. The information alleged, in part, that Appellant on or before

June 2, 2008, and before the filing of the information, intentionally, knowingly, and recklessly

caused bodily injury to the complaining witness by grabbing her and pushing her, or throwing her

into a wall and by grabbing and pulling her hair. Because the trial court and Appellant were able

to determine from the face of the information that it intended to charge Appellant with an offense

over which the trial court had jurisdiction, the information satisfies the test for constitutional

sufficiency. TEX. PENAL CODE ANN. § 22.01 (West 2011). Issue One is overruled.

       In his second issue, Appellant complains that trial counsel was ineffective for failing to

identify and object to defects in the information. To obtain relief for ineffective assistance of

counsel, Appellant must prove that counsel’s performance was deficient and that the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 694-96, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). A


                                                4
claim of ineffective assistance of counsel must be firmly founded in the record and the record must

affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d

390, 392 (Tex.Crim.App. 2005). This is true regarding the issue of counsel’s allegedly-deficient

performance where counsel’s reasons for failing to act do not appear in the record. Id. We

review counsel’s conduct with great deference and without the distorting effects of hindsight. Id.

Trial counsel should be provided an opportunity to explain his actions before we denounce them as

ineffective. Id. Absent this opportunity, we should not find counsel’s performance to be

deficient unless the challenged conduct is so outrageous that no competent counsel would have

engaged in it. Id.

       Although the record on appeal is often an inadequate vehicle for raising a claim of

ineffective assistance because the record is typically undeveloped, a record may be more fully

developed in a post-conviction habeas corpus proceeding. See Goodspeed, 187 S.W.3d at 392.

However, the record before us remains undeveloped regarding trial counsel’s representation and

fails to affirmatively demonstrate that Appellant’s ineffective-assistance claim is meritorious.

Rather, the trial court properly found on the record before it that trial counsel could not be

ineffective for failing to file a meritless motion to quash or other objection to the information

which was not defective. Because Appellant has failed to satisfy the deficient-performance prong

of the Strickland analysis, the trial court did not err in denying Appellant’s requested habeas

corpus relief. Strickland, 466 U.S. at 694-96. Issue Two is overruled.

                                        CONCLUSION

       The trial court’s order denying Appellant’s request for habeas corpus relief is affirmed.




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                                              GUADALUPE RIVERA, Justice
November 28, 2012

Before McClure, C.J., Rivera, J., and Antcliff, J.

(Do Not Publish)




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