Affirmed and Memorandum Opinion filed July 25, 2017.




                                       In The

                     Fourteenth Court of Appeals

                               NO 14-16-00542-CR

                     EX PARTE BADIH AHMAD AHMAD


          On Appeal from the County Criminal Court at Law No. 12
                           Harris County, Texas
                       Trial Court Cause No. 0948654

                  MEMORANDUM OPINION


      Appellant Badih Ahmad Ahmad was convicted in 1987 after pleading guilty
to a misdemeanor offense of driving while intoxicated. Appellant contends that the
1987 conviction is being used as a sentence enhancement in another case pending
against him for felony driving while intoxicated. Appellant filed a post-conviction
application for writ of habeas corpus challenging the 1987 conviction under article
11.09 of the Code of Criminal Procedure, which the trial court denied after a hearing.

      Appellant contends the 1987 conviction is void because he was not
admonished on the maximum range of punishment and did not knowingly and
intelligently waive his right to counsel. We conclude, however, that the trial court
in the misdemeanor case was not required to admonish appellant on the range of
punishment and appellant did not show that he was unaware of the maximum range
of punishment at the time he pleaded guilty. Further, appellant did not rebut the
recitals in the 1987 judgment that he knowingly, intelligently, and voluntarily
waived his right to counsel.       Because appellant did not meet his burden of
establishing his right to habeas relief, we affirm the trial court’s judgment.

                                    BACKGROUND

      On May 19, 1987, appellant pled guilty and was convicted of the misdemeanor
offense of driving while intoxicated (cause number 0948654). His punishment was
assessed at sixty days’ incarceration in the Harris County Jail and a fine of $100.
The 1987 judgment of conviction does not contain any recitals regarding potential
range of punishment, but it does contain a recital that appellant knowingly,
intelligently, and voluntarily waived his right to counsel. Our record contains no
other documents and no reporter’s record related to the 1987 judgment.

      Almost thirty years later, appellant filed his application for writ of habeas
corpus under article 11.09 of the Code of Criminal Procedure. Appellant alleged in
his application that he is currently incarcerated at the Harris County Jail on a separate
charge of felony driving while intoxicated (cause number 1484048) and that the
State is seeking to use the 1987 judgment to enhance his punishment. Appellant
contended that the 1987 judgment is void because: (1) he was not admonished on
the range of punishment before pleading guilty to the misdemeanor charge of driving
while intoxicated; and (2) he was not represented by counsel and the waiver of
counsel recited in the judgment was not knowingly and intelligently made under the
Sixth and Fourteenth Amendments to the United States Constitution, and Article 1,
Section 10 of the Texas Constitution.

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      Appellant did not attach any evidence to his application regarding the 1987
judgment other than his own affidavit. In his affidavit, appellant stated that he was
not admonished on the range of punishment and would not have pled guilty had he
known the maximum range of punishment. He pointed out that he was twenty-one
years of age at the time, it was his first DWI, and he was ignorant of the laws of the
State and the processes of the court system. He also alleged in his application that
he was incorrectly told by an unknown court official that he would be “put away for
a very long time” and they would “throw away the key” if appellant did not plead
guilty to the charges.

      The trial court held a hearing and signed an order denying the application for
writ of habeas corpus. The court rendered a judgment, which provides that the court
heard the application, the applicant and an assistant district attorney representing the
State appeared for a hearing, and that the court denied the requested relief after
reviewing the pleadings and hearing the evidence and argument of the parties. No
recording was made of the hearing and there is no reporter’s record. Appellant
requested that the trial court make findings of fact and conclusions of law but none
were issued. This appeal followed.

                                      ANALYSIS

      Appellant challenges the denial of his application for writ of habeas corpus in
two issues. Appellant argues the trial court erred in denying his application to void
the 1987 judgment given his allegations that, before pleading guilty, he: (1) was not
admonished on the maximum range of punishment; and (2) did not knowingly and
intelligently waive his right to counsel. We address each issue in turn.




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I.     Standard of review

       Texas Code of Criminal Procedure 11.09 provides that a person confined on
a misdemeanor charge may seek relief by filing a writ of habeas corpus.1 Tex. Code
Crim. Proc. Ann. art. 11.09 (West 2015). A party seeking post-conviction habeas
corpus relief must allege and prove his claims by a preponderance of the evidence.
Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). The party may
appeal a denial of habeas relief under Article 11.09 to an intermediate court of
appeals. Dahesh v. State, 51 S.W.3d 300, 302 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d).

       In reviewing a trial court’s ruling on an application, we consider the evidence
presented in the light most favorable to the trial court’s ruling. Kniatt v. State, 206
S.W.3d 657, 664 (Tex. Crim. App. 2006). When ruling on an application under
article 11.09, the trial court sits as the fact finder and is the sole judge of credibility
and demeanor. Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th
Dist.] 2014, pet. ref’d). We may not disturb the trial court’s ruling absent a clear
abuse of discretion. Id. (citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim.

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         Under Article 11.09, an applicant satisfies the requirement of confinement if, though no
longer incarcerated, he is subject to collateral legal consequences from the prior conviction. Ex
parte Crosley, 548 S.W.2d 409, 410 (Tex. Crim. App. 1977); Phuong Anh Thi Le v. State, 300
S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Such collateral legal
consequences include use of the prior conviction to enhance punishment in a subsequent case. Ex
parte Crosley, 548 S.W.2d at 410; Ex parte Karlson, 282 S.W.3d 118, 126 (Tex. App.—Fort
Worth 2009, pet. ref’d). Appellant contends in his application and brief on appeal that the 1987
judgment is being used to enhance the range of punishment for his recent charge of driving while
intoxicated in cause number 1484048. Though our record does not contain any documents related
to cause number 1484048, the State does not dispute appellant’s allegations regarding the use of
the 1987 judgment as an enhancement. The trial court thus had jurisdiction under article 11.09 to
consider appellant’s habeas application. See Ex parte Ali, 368 S.W.3d 827, 832 (Tex. App.—
Austin 2012, pet. ref’d) (concluding court has jurisdiction based on allegations of collateral legal
consequence that were undisputed by the State).

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App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 33 (Tex.
Crim. App. 2007)). We defer to the trial court’s findings of fact that are supported
by the record, even when no witnesses testify and all of the evidence is submitted
through affidavits. See Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App.
2006).

II.   The trial court did not abuse its discretion in denying the habeas
      application based on lack of admonishment on the range of punishment.
      In support of his first issue regarding lack of admonishment, appellant points
to Article 26.13 of the Code of Criminal Procedure, which requires trial court
admonishments of the range of punishment before accepting a guilty plea in felony
proceedings. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (West 2016). Appellant
also relies on the Dallas Court of Appeals’ decision in McMillan v. State for the
proposition that due process requires a defendant charged with a misdemeanor
offense to be informed of the maximum term of imprisonment before entering a
guilty plea. 703 S.W.2d 341, 344 (Tex. App.—Dallas 1985), rev’d, 727 S.W.2d 582
(Tex. Crim. App. 1987). Appellant’s reliance on these authorities is misplaced.

      As the Court of Criminal Appeals has long held, the statutory admonishments
found in Article 26.13 do not apply to misdemeanor cases. State v. Guerrero, 400
S.W.3d 576, 589 (Tex. Crim. App. 2013) (“[A]s we have repeatedly stated, [article
26.13] does not apply to misdemeanor cases.”). Thus, the trial court in the 1987
misdemeanor case was not required to admonish appellant under Article 26.13. See
id.

      Nor does the McMillan decision support appellant’s challenge. In Tatum v.
State, this Court addressed the McMillan decision in some detail. 861 S.W.2d 27,
28 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). We noted that, although the
McMillan court stated that federal due process requires misdemeanor defendants to

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be informed of the maximum term of imprisonment before entering a guilty plea,
there is no requirement that the trial court make the admonishment. Id. at 29. Rather,
due process is satisfied as long as the defendant is otherwise made aware of the
maximum range of punishment. See id. at 29-30.

      We also stated in Tatum that when a party collaterally attacks a prior
conviction, as appellant does here, the burden is on the applicant to bring forth a
record showing that he was unaware of the maximum range of punishment. Id. at
29 (citing Acosta v. State, 650 S.W.2d 827, 828-29 (Tex. Crim. App. 1983)); see
also Ex parte Davis, 748 S.W.2d 555, 559 (Tex. App.—Houston [1st Dist.] 1988,
pet. ref’d). In his application for habeas relief, appellant offered only his affidavit
to prove that he was unaware of the maximum range of punishment. Appellant did
not bring forth the reporter’s record from the hearing on his prior guilty plea, nor has
he produced proof that none was made or, if made, was unavailable. We have no
other documents from the prior 1987 judgment.

      Appellant’s affidavit standing alone is insufficient show that the trial court
abused its discretion in denying his application. See Disheroon v. State, 687 S.W.2d
332, 334 (Tex. Crim. App. 1985) (evidence other than an appellant’s own testimony
is required because “[t]o hold otherwise would allow the mere assertions of a
defendant to invalidate convictions obtained nearly twenty years ago”). Further, the
trial court, as the finder of fact, is the sole judge of credibility determinations and
could have disbelieved appellant’s statement in his affidavit that he did not know the
maximum range of punishment. Ex parte Martinez, 451 S.W.3d at 856. Appellant’s
affidavit does not satisfy his burden of establishing an abuse of discretion in denying
habeas relief.

      Appellant points to the lack of a written admonishment on the maximum range
of punishment in the 1987 judgment and argues that a silent record supports an

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inference that he was not properly admonished. Appellant cites cases for the
proposition that, for a defendant’s guilty plea to be valid, the record must
affirmatively show the plea was intelligently and voluntarily made. See, e.g., Boykin
v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Burnett v.
State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002) (silent record can support
inference that defendant did not know consequences of plea). Again, appellant’s
reliance on these authorities is misplaced.

      In the cases cited by appellant, the court was reviewing the record in a direct
appeal from the underlying conviction to determine whether a valid waiver had
occurred. See Boykin, 395 U.S. at 242; Burnett, 88 S.W.3d at 634-35. Habeas corpus
proceedings are not direct appeals; instead, they are collateral attacks on a prior
conviction. See Ex parte Rodriguez, 466 S.W.3d 846, 852 (Tex. Crim. App. 2015)
(“‘Our cases have consistently characterized habeas corpus as a collateral attack on
a judgment of conviction.’”). The silent-record inference does not apply to a
collateral attack on a prior conviction, in which the applicant bears the burden of
bringing forward the entire record. See West v. State, 720 S.W.2d 511, 519 (Tex.
Crim. App. 1986) (burden is on party seeking to collaterally attack prior judgment
to show record is indeed silent); Ex parte Alexander, 598 S.W.2d 308, 310 (Tex.
Crim. App. 1980); see also Tatum, 861 S.W.2d at 29 (appellant collaterally attacking
prior conviction based on lack of admonishment as to range of punishment had
burden to show he was unaware of maximum range of punishment).

      Because appellant did not bring forth a sufficient record to show that he was
unaware of the maximum range of punishment before entering his guilty plea, he did
not establish his right to habeas relief. See Martinez, 451 S.W.3d at 856; Tatum, 861
S.W.2d at 30. We overrule appellant’s first issue.



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III.   The trial court did not abuse its discretion in denying the habeas
       application based on waiver of counsel.
       In his second issue, appellant contends he was entitled to habeas relief because
he did not knowingly and intelligently waive the right to counsel before pleading
guilty in 1987. Appellant acknowledges in his brief that the 1987 judgment contains
a recitation that appellant waived an attorney and a recitation that he “knowingly,
intelligently and voluntarily waived the right to representation by counsel.”

       A defendant’s waiver of the right to an attorney satisfies constitutional
protections where the waiver is made knowingly, intelligently, and voluntarily. See
Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997); Ex parte Martinez,
451 S.W.3d at 855. A waiver is made intelligently when the defendant “knows what
he is doing and his choice is made with eyes open.” Ex parte Martinez, 451 S.W.3d
at 855 (quoting Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209
(2004)). A defendant voluntarily waives the right to counsel when the waiver is
uncoerced. Id.

       In State v. Guerrero, the Court of Criminal Appeals addressed a defendant’s
collateral attack on a prior conviction by claiming that he had pleaded guilty to a
misdemeanor offense without being advised of the right to counsel. 400 S.W.3d at
580. As in this case, the judgment in Guerrero contained a recital that the applicant
had “knowingly, intelligently, and voluntarily waived counsel.” Id. at 585. The
Court of Criminal Appeals explained:

       When a person attacks the validity of his prior guilty plea as that plea
       is reflected in the written judgment, he bears the burden of defeating
       the normal presumption that recitals in the written judgment are correct.
       Those written recitals “are binding in the absence of direct proof of their
       falsity.”

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Id. at 583 (footnotes omitted) (quoting Breazeale v. State, 683 S.W.2d 446, 450 (Tex.
Crim. App. 1984)). Under Guerrero, appellant thus bears the burden of rebutting
the recitals in the 1987 judgment with competent evidence. See id.

      In his application, appellant stated that the waiver of counsel was not valid
because: (1) he was apprised of his right to counsel in a group session; (2) he did not
execute a written waiver of his right to counsel; (3) the trial court did not inquire into
appellant’s age, educational background, prior experience with the criminal justice
system, or understanding of the dangers of self-representation; (4) the trial court did
not examine appellant to determine if he was indigent; and (5) the trial court did not
ask appellant if his waiver was freely and voluntarily entered. None of appellant’s
reasons are sufficient to show an abuse of discretion in denying his application for
habeas relief.

      Appellant did not offer any sworn pleading or sworn testimony other than his
own affidavit, did not offer a reporter’s record from any hearing on the 1987
judgment, nor any other affidavits, associated exhibits, or documents that would
rebut the recitals stated in the judgment. His allegations in his application, standing
alone, were not sufficient.      See Disheroon, 687 S.W.2d at 334 (“Appellant’s
testimony alone fails to meet the burden of showing indigency, lack of counsel and
lack of waiver.”). Likewise, there is no requirement that a waiver of counsel be in
writing to be valid, Burgess v. State, 816 S.W.2d 424, 430-31 (Tex. Crim. App.
1991), and a trial court is not required to admonish a defendant regarding the dangers
and disadvantages of self-representation when the defendant pleads guilty or nolo
contendre. Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002); Ex parte
Martinez, 451 S.W.3d at 855.

      The trial court, sitting as the finder of fact in a habeas proceeding under article
11.09 of the Texas Code of Criminal Procedure, was free to believe or disbelieve the

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statements offered by appellant. Ex parte Martinez, 451 S.W.3d at 856. Deferring
as we must to the trial court’s assessment of the facts, we conclude appellant failed
to overcome the presumption that the recitals in the 1987 judgment were correct.
Guerrero, 400 S.W.3d at 584-85; Ex parte Martinez, 451 S.W.3d at 856. Appellant
did not establish that the trial court abused its discretion by denying his application
for habeas relief. We overrule his second issue.

                                     CONCLUSION

      We overrule appellant’s two issues on appeal. The trial court’s judgment
denying habeas relief is affirmed.




                                        /s/    J. Brett Busby
                                               Justice



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




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