No. 05-06-01103-CR
Opinion issued November 3, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-80613-04(a). Affirmed.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
Opinion By Justice WHITTINGTON.
James Alan Jones appeals the trial judge's order denying him relief on his application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005). In three issues, applicant asserts the trial judge erred in concluding (i) the search warrant complaint was not cognizable by writ of habeas corpus, (ii) he received effective assistance of counsel, and (iii) his plea was voluntary. We affirm the trial judge's order denying applicant the relief sought.
Background
Applicant pleaded guilty to possession of child pornography. Pursuant to a plea bargain agreement, the trial judge assessed punishment at ten years' imprisonment, probated for eight years, and a $3500 fine. Applicant subsequently filed an application for writ of habeas corpus challenging the search warrant affidavit and asserting that his plea was involuntary. At the habeas corpus hearing, applicant testified he has no legal training and, therefore, hired trial counsel, Joel Petrazio, to represent him. According to applicant, he went to Petrazio's office, and they reviewed the affidavit and search warrant. Petrazio did not discuss the law of search and seizure with him, nor did he discuss whether the images on applicant's computer might have grown stale for probable cause purposes. Applicant testified Petrazio gave his professional opinion that there was no realistic basis to challenge the search or seizure without telling applicant the reasons for this conclusion. In Petrazio's opinion, a challenge would not be successful, and he did not encourage applicant to go forward with a motion to suppress or seek a suppression hearing. Applicant understood his computer equipment was seized pursuant to the search warrant and that the child pornography images obtained from the seized computer led to his conviction. Applicant testified he would have challenged the seizure of the computer and the images it contained, and would not have pleaded guilty if he had known he could challenge the warrant. Applicant relied on Petrazio's advice and did not challenge it because Petrazio was the "expert." On cross-examination, applicant testified he recently discovered he could file a grievance against Petrazio, but conceded he has not done so. He also conceded he would have pleaded guilty if a motion to suppress had been filed and then denied by the judge. Petrazio's affidavit was admitted into evidence. In the affidavit, Petrazio testified case law does not support applicant's claim the search warrant should not have issued. Petrazio identified the questions he would answer when reviewing probable cause and the law he would apply. He stated it was not unreasonable to presume the child pornography images were in the computer's memory. He stated he discussed with applicant how search warrants could be defective and challenged. He advised applicant that a motion to suppress would not be successful. He stated applicant decided to follow his advice to take the plea bargain and not risk imprisonment based on the voluminous amount of evidence in applicant's case. Standard of Review
In reviewing the trial judge's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial judge's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam). We will uphold the trial judge's ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d at 819. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. We afford the same amount of deference to the trial judge's application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Ex parte Peterson, 117 S.W.3d at 819. Suppression Issue
In his first issue, applicant asserts the trial judge abused his discretion in concluding a challenge to the validity of the search warrant was not cognizable by habeas. The State responds that the trial judge acted within his discretion in determining the claim was not cognizable. We recognize this as a matter of law issue and review it as such. When a person is on community supervision, challenges to the legality of the conviction may be asserted by application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.072, § 2(b)(1)-(2) (Vernon 2005). However, habeas corpus relief is not available where the issue may be raised on direct appeal. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(a); Ex parte Pena, 71 S.W.3d 336, 338 (Tex.Crim.App. 2002) (per curiam) (habeas corpus generally not available to raise complaint that could have been raised on direct appeal). The trial judge relied on Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004), in determining the validity of the search warrant is not cognizable on habeas. In Grigsby, the judge held a challenge to the legality of the search and seizure conducted by law enforcement officers was forfeited by failure to raise it on direct appeal. Ex parte Grigsby, 137 S.W.3d at 674. Applicant seeks to distinguish Grigsby because it addresses a situation where the issue presented on habeas was not raised on direct appeal; in contrast, no direct appeal was filed in applicant's case. The State argues that neither the limitations provided by article 11.072, section 3(a) nor the holding in Grigsby draws a distinction between the reasons why a defendant does not pursue a direct appeal. We agree with the State. The plain language of article 11.072, section 3(a) does not make an exception to allow habeas corpus relief in situations where no appeal was filed from the underlying proceeding. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(a); Ex parte Pena, 71 S.W.3d at 337 (error waived by not complaining about fine at time it was imposed or on direct appeal, even when writ of habeas corpus raises cognizable complaint). Rather, section 3(a) simply states habeas corpus relief is not available where the issue may be raised on direct appeal. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(a). Applicant did not file a written pretrial suppression motion or secure permission from the trial judge to appeal from the negotiated plea, which would have enabled applicant to challenge the search warrant on appeal. We agree with the trial judge's determination that the issue was not cognizable by application for writ of habeas corpus as a matter of law. We overrule applicant's first issue. Ineffective Assistance of Counsel
In his second issue, applicant contends trial counsel was ineffective in not researching or advising applicant on the law governing staleness of information issues supporting search warrant affidavits. To prevail on a claim of ineffective assistance of counsel, applicant must prove by a preponderance of the evidence that (i) counsel's performance fell below the standard of prevailing professional norms and (ii) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 695 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. See Thompson, 9 S.W.3d at 812. In the context of a guilty plea, the second prong is met by showing that but for counsel's errors, the defendant would not have pleaded guilty or nolo contendere but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Allegations of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson, 9 S.W.3d at 813. Moreover, appellate scrutiny of trial counsel's performance must be highly deferential to avoid the deleterious effects of hindsight. See Thompson, 9 S.W.3d at 813. Applicant testified Petrazio did not discuss the law relating to searches and seizures before applicant pleaded guilty. However, he also testified Petrazio addressed a suppression motion, but stated that, in his opinion, it would not be successful. Petrazio's affidavit stated he advised applicant at the beginning of the representation that the first thing he would investigate was the validity of the search warrant. He testified that, after thoroughly reviewing the search warrant and applicable law, he advised applicant of his opinion that a challenge would not be successful in applicant's case. The trial judge was the sole judge of the credibility of the witnesses. We afford deference to the judge's determination of the facts especially when the fact findings are based on an evaluation of credibility. See Ex parte Peterson, 117 S.W.3d at 819. In this case, the judge resolved the conflicts in the evidence against applicant. Reviewing the record under the appropriate standard, we cannot conclude the trial judge erred in finding applicant received effective assistance of counsel. We overrule applicant's second issue. Voluntariness of Plea
In his third issue, applicant contends his plea was not knowingly and intelligently made and, therefore, was involuntary because trial counsel failed to adequately inform him of the search and seizure law and his options relating to suppression of the evidence. Because we have already rejected this argument in addressing applicant's second issue, we conclude we need not revisit this issue. We overrule his third issue. We affirm the trial judge's order denying applicant's application for writ of habeas corpus.