Opinion issued October 6, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00154-CR
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EX PARTE TULIO WILFREDO ESCOBAR, Appellant
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1329944-A
MEMORANDUM OPINION
Appellant, Tulio Wilfredo Escobar, appeals from the habeas court’s denial
of his application for writ of habeas corpus. Escobar argues that the habeas court
abused its discretion by denying his application because (1) his plea was
involuntary, and (2) the motion to revoke his community supervision violated his
Fifth Amendment right against self-incrimination. We affirm.
Background
On May 2, 2012, Escobar pleaded guilty to the third-degree felony offense
of driving while intoxicated–third offense. Pursuant to an agreed plea bargain, the
trial court assessed Escobar’s punishment at five years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice and ten days’
confinement in the Harris County jail, but suspended confinement and placed
Escobar on community supervision for three years.
On October 6, 2014, the State filed a motion to revoke Escobar’s community
supervision on the grounds that Escobar violated the terms of his supervision by:
(1) driving or operating a motor vehicle while his license was suspended and
driving or operating a motor vehicle on two separate occasions without a valid
driver’s license, as evidenced by Escobar’s admission to a polygraph examiner; (2)
driving or operating a motor vehicle on two separate occasions without a valid
driver’s license, as evidenced by Escobar’s admission to his community
supervision officer; and (3) failing to maintain financial responsibility.
Escobar filed an application for writ of habeas corpus alleging that: (1) the
motion to revoke violated his Fifth Amendment right against self-incrimination;
(2) his guilty plea was involuntary due to a Fourth Amendment violation; and (3)
his plea counsel was ineffective because he allowed Escobar to enter an
involuntary plea.
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No evidentiary hearing was held on Escobar’s application. Although
Escobar did not file any affidavits in support of his application, the State submitted
sworn affidavits for the habeas court’s consideration from Escobar’s plea counsel
and the polygraph examiner. The polygraph examiner averred in his affidavit that
Escobar admitted that he had driven in violation of his community supervision
during his August 29, 2014 polygraph session. He further averred that Escobar did
not invoke his Fifth Amendment privilege during that session, ask for an attorney,
or refuse to speak with the examiner.
Escobar’s plea counsel averred in his affidavit that after he discussed the
relevant case law with Escobar, counsel “strongly encouraged” Escobar to go
forward with a motion to suppress all evidence obtained as a result of the
warrantless blood draw. Counsel told Escobar that he thought that Escobar had a
“good case” and that even if he lost on the motion, he had a “good chance of
winning” on appeal. Counsel further averred that he informed Escobar that the
State was offering three years’ community supervision, but that if Escobar filed a
motion to suppress and lost, the State would insist on a longer period of
supervision. When Escobar learned that three years was the shortest period of
community supervision that the State was willing to offer, Escobar informed his
counsel that he did not want to pursue a motion to suppress and wanted to accept
the State’s offer. The judgment, which Escobar attached to his application, recites
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that the trial court “admonished Escobar as required by law” and that “[i]t appeared
to the [trial court] that [Escobar] . . . made the plea freely and voluntarily, and was
aware of the consequences of this plea.”
Based on the record and the affidavits submitted, the habeas court found that
Escobar’s plea was voluntary and that Escobar failed to demonstrate that his Fifth
Amendment right against self-incrimination was violated because there was no
evidence that Escobar invoked this right.
Standard of Review
We review a trial court’s ruling on a habeas corpus application for abuse of
discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In
reviewing a trial court’s decision to deny habeas relief, we view the facts in the
light most favorable to the trial court’s ruling. Ex parte Peterson, 117 S.W.3d 804,
819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis,
219 S.W.3d 335 (Tex. Crim. App. 2007). We afford almost total deference to the
habeas court’s findings of fact that are supported by the record, especially when
the trial court’s fact findings are based on an evaluation of credibility and
demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006)
(quoting Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)). We afford
the same deference to the trial court’s rulings on the application of the law to fact
questions if the resolution of those ultimate questions turns on an evaluation of
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credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. In such instances,
we use an abuse of discretion standard. See Ex parte Garcia, 353 S.W.3d 785, 787
(Tex. Crim. App. 2011). However, if the resolution of those ultimate questions
turns on an application of legal standards absent any credibility issue, we review
the determination de novo. Ex parte Peterson, 117 S.W.3d at 819.
A habeas applicant bears the burden of establishing that the facts entitle the
applicant to relief. See Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App.
1997); Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.]
2013, no pet.). One who seeks habeas corpus relief based on an involuntary guilty
plea has the burden of showing that his plea was involuntary by a preponderance of
the evidence. Kniatt, 206 S.W.3d at 664. “Waivers of constitutional rights not only
must be voluntary but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.” Brady v. United
States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970). “[T]he record must
affirmatively disclose that a defendant who pleaded guilty entered his plea
understandingly and voluntarily.” Id. at 747 n.4, 90 S. Ct. at 1468 n.4. A person
attacking the validity of his prior guilty plea as that plea is reflected in the written
judgment “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.’” State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim.
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App. 2013) (quoting Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App.
1984)).
“A guilty plea is not knowing or voluntary if made as a result of ineffective
assistance of counsel.” Ex Parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim.
App. 2012). When a habeas applicant challenges a guilty plea based on ineffective
assistance of counsel, we apply the two-pronged Strickland test. See Murillo, 389
S.W.3d at 926 (citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370
(1985)). To be entitled to relief, an applicant challenging his guilty plea based on
ineffective assistance must establish that: (1) trial counsel’s performance fell below
an objective standard of reasonableness and (2) a reasonable probability exists that,
but for counsel’s ineffectiveness, the result of the proceeding would have been
different. See Moussazadeh, 361 S.W.3d at 691; Ex parte Roldan, 418 S.W.3d 143,
145 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Fifth Amendment
In his application for writ of habeas corpus, Escobar argues that the State’s
reliance on his admissions of wrongdoing to the polygraph examiner violates his
Fifth Amendment right against self-incrimination. The Fifth Amendment privilege,
however, “generally is not self-executing” and a witness who desires its protection
“‘must claim it.’” Minnesota v. Murphy, 465 U.S. 420, 425, 104 S. Ct. 1136, 1141
(1984) (quoting United States v. Monia, 317 U.S. 424, 427, 63 S. Ct. 409, 410–11
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(1943)); see generally Dansby v. State, 398 S.W.3d 233, 240–41 (Tex. Crim. App.
2013) (holding trial court abused its discretion by revoking defendant’s community
supervision based upon defendant’s invocation of his Fifth Amendment right).
Here, the habeas court found that there was credible testimony from the
polygraph examiner that Escobar admitted during his polygraph session that he had
violated the terms of his supervision and that Escobar did not invoke his Fifth
Amendment privilege during that session, ask for an attorney, or refuse to speak
with the examiner. Based on this testimony, which was uncontroverted, the habeas
court found that Escobar failed to demonstrate that he invoked his Fifth
Amendment right against self-incrimination and thereby failed to establish that his
right was violated.
Accordingly, we hold that the habeas court did not abuse its discretion by
denying Escobar’s application for writ of habeas corpus on this basis because
Escobar failed to carry his burden of proving his entitlement to relief. See Ex parte
Morrow, 952 S.W.2d at 534.
Voluntariness of Plea Based on Fourth Amendment Violation
Escobar also argued in his application that his plea was involuntary because
the warrantless blood draw violated the Fourth Amendment’s protections against
unlawful searches and seizures.
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As in direct appeals, a party is required to preserve certain types of
constitutional error in order to raise a complaint regarding the error in a habeas
application. See Garza v. State, 435 S.W.3d 258, 261–62 (Tex. Crim. App. 2014);
Ex parte Jimenez, 364 S.W.3d 866, 882 (Tex. Crim. App. 2012). To preserve a
complaint for appellate review, a party must make a timely objection or motion
stating the specific grounds for the complaint and obtain a ruling from the trial
court. See TEX. R. APP. P. 33.1(a).
There was credible evidence presented to the habeas court demonstrating
that Escobar was advised to file a motion to suppress all evidence obtained as a
result of the warrantless blood draw. Escobar declined to do so because he did not
want to risk a longer supervision period. By choosing the strategic option to accept
a plea bargain rather than file a motion to suppress, Escobar forfeited his right to
complain in a habeas application about the possibly unconstitutional process used
to obtain the evidence against him. See id.; Marin v. State, 851 S.W.2d 275, 279–
80 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947
S.W.2d 262, 264 (Tex. Crim. App. 1997); see generally Brady, 397 U.S. at 757, 90
S. Ct. at 1473 (“[A] voluntary plea of guilty intelligently made in the light of then
applicable law does not become vulnerable because later judicial decisions indicate
that the plea rested on a faulty premise.”).
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Accordingly, we hold that Escobar failed to preserve this complaint for
appellate review.
Voluntariness of Plea Based on Ineffectiveness of Plea Counsel
In his application, Escobar also argued that his plea counsel “erroneously
advised him that a motion to suppress would be futile” and that “[h]ad counsel
correctly advised him that the seizure of evidence was subject to challenge,
[Escobar] might not now be restrained of his liberty due to a constitutional
violation.” Escobar, however, did not present any testimony in support of these
unverified allegations. On the contrary, Escobar’s plea counsel testified in his
affidavit that he “strongly encouraged” his client to go forward with a motion to
suppress evidence obtained as a result of the warrantless blood draw because he
thought that Escobar had a “good case” and that he advised Escobar that even if he
lost on the motion, he had a “good chance of winning” on appeal. The habeas court
found plea counsel’s uncontroverted testimony credible. See Ex parte Amezquita,
223 S.W.3d at 367 (appellate courts afford almost total deference to habeas court’s
findings of fact that are based on evaluation of credibility and demeanor and
supported by record).
Accordingly, we hold that the habeas court did not abuse its discretion by
denying Escobar’s application for writ of habeas corpus based on ineffective
assistance because Escobar failed to prove that his counsel’s performance fell
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below an objective standard of reasonableness, as required by the first prong of
Strickland. See Moussazadeh, 361 S.W.3d at 691.
Conclusion
Finding no reversible error, we affirm the trial court’s judgment. We dismiss
any pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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