EX PARTE FRANK MACKEY v. <<

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Court of Appeals of Texas, Dallas.

EX PARTE FRANK MACKEY, Appellant

No. 05-09-01550-CR

Decided: March 11, 2010

Before Chief Justice Wright and Justices Francis and Fillmore

OPINION

Opinion By Chief Justice Wright

Frank Mackey filed an application for writ of habeas corpus challenging the voluntariness of his guilty plea to the offense of felony driving while intoxicated.   After conducting a hearing, the trial court denied relief.   In two issues, appellant contends the trial court erred in overruling his application because prior convictions used to elevate his offense to a felony were void and trial counsel rendered ineffective assistance by advising him to plead guilty without first investigating the propriety of the prior convictions.   We affirm.

In 2008, appellant was indicted for driving while intoxicated.   The indictment alleged appellant had twice before been convicted of driving while intoxicated, in Kaufman County in 1989, and in Rockwall County in 1993.   If proven, the prior convictions elevate appellant's offense to a third-degree felony.   See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp.2009).

Appellant entered a negotiated guilty plea to the charge and executed a plea agreement in which he did “admit and judicially confess than [sic] I committed the offense of DRIVING WHILE INTOXICATED 3RD OR MORE on 04/10/2008 exactly as alleged in the charging instrument.”   Appellant also executed a stipulation of evidence confessing “that on or about 04/10/2008 I did then and there in Kaufman County, Texas:  Commit the offense(s) as alleged in the above referenced cause number.”   The trial court assessed the agreed punishment of eight years' confinement, probated for four years, and a $1,000 fine.   Appellant did not appeal his conviction.

In 2009, the State filed a motion to revoke appellant's community supervision.   Appellant then filed an application for writ of habeas corpus alleging his negotiated guilty plea was involuntary because he received ineffective assistance of counsel.   Specifically, appellant contended counsel rendered ineffective assistance by failing to investigate and discover that the enhancement DWI convictions were void and by advising appellant to enter a guilty plea under the circumstances.

During the writ hearing, appellant did not offer any testimony, but did admit into evidence an affidavit from trial counsel averring, “I have reviewed my file relating to [appellant's] case and did not see any indication in the file that I reviewed the judgments that the State used to enhance the offense.”   Appellant also filed for the trial court certified copies of documents he had received from Rockwall and Kaufman Counties relating to the underlying convictions.   Appellant drew the trial court's attention to the fact that the complaint in the Rockwall case appears to be uncertified and Rockwall County did not provide him with a copy of the information from that case.   Thus, appellant contends, there was no valid information and the conviction must be void.   Regarding the 1989 Kaufman County case, appellant pointed out that there is no attorney listed as defense counsel on the trial court's docket sheet provided.   Thus, appellant contended, the Kaufman County conviction is void because it was procured in violation of his right to counsel.   In response, the State argued appellant's proof was inadequate to overcome the presumption of regularity attached to the underlying judgments.

In its order denying appellant relief,1 the trial court did not address the adequacy of counsel's investigation or advice.   Rather, the trial court concluded that the evidence presented was insufficient to show the underlying convictions were void and, therefore, appellant failed to show that any additional investigation by counsel would have uncovered evidence to prove the convictions were void.   After denying appellant's habeas corpus relief, the trial court revoked appellant's community supervision and sentenced him to three years' confinement.

We review for abuse of discretion the trial court's decision to deny habeas corpus relief.  Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006).   Appellant bears the burden to prove his entitlement to the relief he seeks by a preponderance of the evidence.  Id. We review the evidence presented in the light most favorable to the trial court's ruling.  Id. In conducting our review, we afford almost total deference to the trial court's determination of the historical facts the record supports, especially when the fact findings require an evaluation of credibility and demeanor.   Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App.2006).

In his first issue, appellant contends the trial court erred in ruling that the prior convictions were valid convictions.   Appellant contends the two underlying convictions are void because the Rockwall documents do not contain an information or a valid complaint and the Kaufman documents do not identify anyone serving as defense counsel.   The State responds that appellant has failed to offer affirmative evidence showing the judgments were void and, thus, the trial court was justified in entering findings relying upon the presumption of regularity in judgments to deny appellant's contention.   We agree with the State.

In collaterally attacking his prior convictions, appellant bears the burden of proof to show the convictions are void.   See Johnson v. State, 725 S.W.2d 245, 246-47 (Tex.Crim.App.1987).   In evaluating the documents before it, the trial court was required to presume the regularity of the underlying trial court proceedings and the resulting judgments.   See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1984);  Kelley v. State, 676 S.W.2d 104, 108 (Tex.Crim.App.1984).

The judgment in the Rockwall County case specifically states that appellant entered a plea of guilty “to the charge as alleged in the information․”  In the absence of direct proof of its falsity, this recitation in the judgment of the existence of an information is binding.   See Breazeale, 683 S.W.2d at 450.   Moreover, the documentation includes appellant's signed judicial confession that provides, “Under oath, in writing, and in open Court, I swear that I have read the indictment/information against me in this case and understand everything it contains;  that I committed each and every element alleged therein;  and that I am guilty of all offenses charged therein and all lesser included offenses.”   As the State points out, appellant's evidence before the trial court merely shows that in 2009, the Rockwall County Clerk was unable to produce a copy of an information from a 1993 case.   The documents the Rockwall County Clerk did produce, including a judgment of conviction, are sufficient to prove the underlying DWI conviction.   See Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App.2007).   To prove a prior conviction, the State need only show beyond a reasonable doubt that a prior conviction exists and that the defendant is linked to that conviction.  Id. The certified copy of the judgment admitted into evidence in this case meets the State's burden of proof.  Id. Thus, the failure to produce a copy of the information referenced in the judgment, and which appellant swore he had read and understood, is immaterial.

Likewise, in the 1989 Kaufman County case, the certified judgment recites appellant's counsel was present at the plea hearing and the trial court assessed appellant's sentence after hearing “the argument of counsel.”   In our view, the mere fact that no counsel is identified on the trial court's docket sheet does not overcome the presumption of regularity in the judgment's recitations.   See Breazeale, 683 S.W.2d at 450.   We conclude appellant has not shown the trial court abused its discretion in concluding he failed to affirmatively show that the underlying convictions were void.   We overrule appellant's first issue.

In his second issue, appellant contends trial counsel rendered ineffective assistance by not reviewing the prior convictions.   We evaluate the effectiveness of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984).   See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999).   To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different.   See Strickland, 466 U.S. at 687-88, 694.   A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002).   When a defendant challenges the voluntariness of a guilty plea due to ineffective assistance of counsel, the defendant must show (1) counsel's advice was outside the range of competence for criminal defense attorneys, and (2) it is reasonably probable that, but for counsel's error, the defendant would not have pleaded guilty and would have insisted on proceeding to trial.  Hill v. Lockhart, 474 U.S. 52, 58-59 (1985);  Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App.1999).

As the State points out, counsel's affidavit does not establish that counsel failed to investigate the underlying convictions.   It merely states that counsel has no written record of such an investigation.   However, even if we assume counsel's affidavit establishes that her performance did not meet reasonable professional standards, appellant cannot satisfy the second prong of the ineffectiveness standard.   As we have already discussed, appellant did not establish before the trial court that the convictions were void.   Accordingly, appellant did not show that he would not have entered his guilty plea if counsel had investigated the underlying convictions or that there is a reasonable possibility of a different result.   See Hill, 474 U.S. at 58-59;  Moody, 991 S.W.2d at 857-58.   Therefore, we cannot conclude the trial court abused its discretion in finding that appellant had failed to satisfy his burden to prove ineffective assistance of counsel.   We overrule appellant's second issue.

We affirm the trial court's order.

FOOTNOTES

FN1. The trial court's written order denying relief is contained within the document setting forth its findings of fact and conclusions of law filed on December 14, 2009..  FN1. The trial court's written order denying relief is contained within the document setting forth its findings of fact and conclusions of law filed on December 14, 2009.

CAROLYN WRIGHT CHIEF JUSTICE

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