                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00012-CR


ADRIAN LEE CHACON                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NO. C-396-010606-1342992-BP

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                           MEMORANDUM OPINION1

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      In October 2014, Appellant Adrian Lee Chacon pled guilty to felony boating

while intoxicated (BWI), and the trial court convicted him and sentenced him to

pay a $1,000 fine and to serve ten years’ confinement but suspended imposition

of the confinement, placing Appellant on community supervision for three years.

Appellant did not appeal the conviction, and the trial court denied relief on his


      1
          See Tex. R. App. P. 47.4.
postconviction writ of habeas corpus. The trial court later granted Appellant an

out-of-time appeal regarding that denial of relief.      In one issue, Appellant

contends that because he was denied his right to effective assistance of counsel

at trial, his guilty plea was not knowing or voluntary. Because the trial court did

not abuse its discretion by denying habeas relief, we affirm the trial court’s order

denying that relief.

Procedural Facts

      On March 17, 2015, about five months after he was convicted and placed

on community supervision, Appellant filed an application for writ of habeas

corpus under article 11.072 of the code of criminal procedure,2 alleging that he

had been denied the effective assistance of trial counsel. The trial court denied

habeas relief in June 2015. Appellant did not appeal the denial of habeas relief.3

      In October 2015, Appellant filed a second application for writ of habeas

corpus requesting an out-of-time appeal, explaining that he had intended to

appeal the denial of relief under the first writ and had failed to do so through no

fault of his own. In its response, the State agreed that the requested right to

appeal should be granted. The trial court granted relief and allowed Appellant

the right to appeal the trial court’s denial of relief from the first writ of habeas

corpus; that is, the trial court granted Appellant an out-of-time appeal. Appellant


      2
          Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015).
      3
          See id. art. 11.072, § 8.


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then timely filed this out-of-time appeal on January 4, 2016.

Facts

        Appellant signed a judicial confession. His BWI conviction was enhanced

to a third-degree felony because of two prior convictions for driving while

intoxicated (DWI).4 One of those convictions was out of a justice court in Mesa,

Arizona.

Law and Analysis

        In his sole point, Appellant argues that the Mesa, Arizona DWI conviction

was void or voidable under Texas law and that his trial counsel rendered

ineffective assistance by allowing him to plead guilty, rendering his plea

involuntary.5 We generally review a trial court’s decision to deny habeas relief

under article 11.072 for an abuse of discretion.6 Viewing the evidence in the light

most favorable to the trial court’s ruling, we determine whether the trial court

acted without reference to any guiding rules or principles.7

        An applicant for habeas corpus relief challenging the effectiveness of

        4
      See Tex. Penal Code Ann. § 49.06(a) (West 2011), § 49.09(b) (West
Supp. 2016).
        5
       See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984).
        6
        Ex parte Donato, No. 02-16-00006-CR, 2016 WL 673668, at *2 (Tex.
App.—Fort Worth Feb. 18, 2016, pet. ref’d) (mem. op., not designated for
publication); Ex parte Jessep, 281 S.W.3d 675, 678 (Tex. App.—Amarillo 2009,
pet. ref’d).
        7
            Donato, 2016 WL 673668, at *2; Jessep, 281 S.W.3d at 678.


                                          3
counsel has the burden of proving ineffective assistance of counsel by a

preponderance of the evidence.8         To demonstrate ineffective assistance of

counsel, an applicant must show that (1) his counsel’s representation fell below

an objective standard of reasonableness and (2) but for counsel’s deficiency, the

result of the proceeding would have been different.9 A reviewing court analyzes

claims of ineffective assistance under the “totality of the representation”

standard.10      First, the reviewing court examines an applicant’s allegations of

deficient performance and decides whether trial counsel’s actions or omissions

were “constitutionally deficient.”11    If the reviewing court decides that trial

counsel’s conduct was constitutionally deficient, it then determines whether

counsel’s specific acts or omissions, in their totality, prejudiced the applicant’s

defense.12

      A defendant is entitled to effective assistance of counsel during the plea-




      8
      Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995), cert.
denied, 517 U.S. 1106 (1996).
      9
        Ex parte McFarland, 163 S.W.3d 743, 751–52 (Tex. Crim. App. 2005)
(relying on Strickland, 466 U.S. at 687, 104 S. Ct. at 2064); Donato, 2016 WL
673668, at *2.
      10
           Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004).
      11
           Id.
      12
           Id.


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bargaining process.13     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.14

      An    applicant   must    overcome      the   presumption   that,   under   the

circumstances, the challenged action could be considered sound trial strategy.15

Although trial counsel has an obligation to make reasonable investigation and

reasonable decisions regarding the investigation, there is no evidence in the

record before us that trial counsel failed to do so.16

      Appellant relies on Gaddy v. State17 to support his argument that the

Arizona judgment is inadequate under Texas law. Gaddy dealt with a conviction

out of a municipal court in New Mexico when Gaddy was not represented by

      13
       See Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366, 370–71 (1985);
Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993).
      14
        Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. 1999) (citations
and internal quotation marks omitted).
      15
      Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986); Donato, 2016
WL 673668, at *3.
      16
         See Conrad v. State, 77 S.W.3d 424, 425 (Tex. App.—Fort Worth 2002,
pet. ref’d); Donato, 2016 WL 673668, at *4.
      17
        No. 02-09-00347-CR, 2011 WL 1901972 (Tex. App.—Fort Worth May 19,
2011) (mem. op, not designated for publication), judgm’t vacated on other
grounds, No. PD-1118-11, 2012 WL 4448757, at *1 (Tex. Crim. App. Sept. 26,
2012) (not designated for publication).


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counsel and for an offense that would not have constituted a DWI conviction

under Texas law.18 That is, Gaddy dealt with a void conviction used to enhance

Gaddy’s Texas DWI conviction.19

      Appellant appears to argue that trial counsel should have challenged the

validity of the Arizona conviction and that the Arizona conviction was voidable.

Appellant also appears to concede that trial counsel’s investigator had

investigated the Arizona conviction. Additionally, the State points out that the

prosecution was prepared to bring witnesses from Arizona to prove up the

conviction and that trial counsel was aware of that fact. Nor can we determine

from the record before us whether the questions about the Arizona conviction

affected any plea-bargaining negotiations.

      A conviction that is merely voidable, as opposed to void ab initio, cannot

be attacked by writ of habeas corpus but must be attacked by direct appeal.20 To

the extent that Appellant appears to be challenging the validity of the Arizona

conviction and the sufficiency of the evidence to support the Arizona

enhancement of his current conviction, Appellant has not shown that the DWI

offense for which he was convicted in Arizona is not essentially the same as that

      18
           Id. at *9.
      19
           Id.
      20
         Ex parte Shields, 550 S.W.2d 670, 675 (Tex. Crim. App. 1977) (op. on
reh’g); see Tex. R. App. P. 43.2(c); Delgado v. State, 235 S.W.3d 244, 250 (Tex.
Crim. App. 2007); see also Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim.
App. 2010).


                                        6
of Texas, as our law requires.21 Because Appellant has not sustained his burden

of showing trial counsel’s actions or inactions were not based on reasonable trial

strategy,22 he has failed to sustain his burden to show ineffective assistance of

counsel at trial. We, therefore, overrule his sole point.

Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s order

denying habeas relief.




                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

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

DELIVERED: September 29, 2016




      21
           See Gaddy, 2011 WL 1901972, at *5–6.
      22
           See Butler, 716 S.W.2d at 54; Donato, 2016 WL 673668, at *3.


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