COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EX PARTE: MARCOS RAUL §
ARREDONDO. No. 08-11-00327-CR
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Appeal from the
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409th District Court
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of El Paso County, Texas
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(TC# 20050D04168-409-1)
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OPINION
Appellant Marcos Raul Arredondo appeals from the trial court’s denial of his application
for writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2005). In a single issue, Appellant asserts
that the trial court erred in denying him habeas relief because ineffective assistance of counsel
rendered his guilty plea involuntary. We affirm the trial court’s order denying habeas corpus
relief.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2010, as part of a plea agreement, Appellant pleaded guilty to three counts of
indecency with a child by contact. The trial court accepted Appellant’s plea, deferred the
adjudication of his guilt, and placed him on ten years’ community supervision. In July 2011,
Appellant filed an application for a writ of habeas corpus alleging that his plea of guilty was
involuntary because his trial counsel erroneously advised him that he would only be required to
register as a sex offender for ten years after completing his probation. He further alleged that
he would not have pleaded guilty if he had known that the sex offender registration requirement
was for life. In support of his writ application, Appellant attached his own affidavit and
affidavits from John L. Williams, his trial counsel, and Carlos Mendoza, a West Texas
Community Supervision and Corrections Department employee. As additional support for his
writ application, Appellant attached a non-prosecution affidavit he obtained from the
complainant after he had pleaded guilty.
In his supporting affidavit, Appellant stated that he did not want to enter a plea of guilty
and that he and his attorney were “terrified of the thought of [Appellant] having to do prison
time.” Appellant’s attorney advised him that he believed that the sex offender registration
statute required reporting for ten years after probation was completed. Appellant asserted that
the length of the registration was a vital fact in his decision to plead guilty. He asserted that if
his attorney had correctly advised him that the sex offender registration was for life, he would
not have pleaded guilty. Similarly, in John L. Williams’ affidavit, Williams stated that he was
concerned about a jury convicting Appellant based on his appearance. After discussing the
possible plea agreement with the State, Williams looked up the sex offender registration
requirement and “felt” that the statute called for a ten-year registration period after probation was
completed. Williams informed Appellant that the sexual offender registration period was for
ten years after probation was completed. The length of the registration period was a vital fact to
his client in determining whether to enter a plea.
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When Appellant was ready to sign the plea paperwork, the paperwork initially read
“reporting for life,” but Appellant was unwilling to sign with such wording. The paperwork
was revised to read “registration as required by law.” After Appellant entered his guilty plea,
Appellant met with Carlos Mendoza to go over the conditions of probation. Appellant did not
want to sign the probation papers which indicated that sex offender registration was for life.
Williams told Appellant he thought the paperwork was wrong, but explained to him that he had
to sign the paperwork. Williams told Appellant that he would conduct the necessary research to
correct the registration time. Later, Williams reviewed the entire statute and realized that he
had erroneously advised Appellant about the length of the registration period. Williams
believed Appellant would not have pleaded guilty if he had correctly advised Appellant that the
statute called for lifetime registration as a sex offender.
According to the affidavit of Carlos Mendoza, Mendoza reviewed the terms and
conditions of probation with Appellant. Appellant did not want to sign the sex offender
registration papers and was very concerned with the length of registration. Appellant stated that
his attorney had told him that “registration was only for 10 years after probation ended and not
for life.” When Williams was summoned, Williams told Mendoza that he thought the probation
material was wrong. Williams advised Appellant to sign the paperwork although he thought the
portions regarding the length of registration were not correct.
Without conducting a hearing, the trial court denied Appellant’s application for habeas
relief, and issued written findings of fact and conclusions of law. This appeal followed.
DISCUSSION
In his sole issue on appeal, Appellant challenges the trial court’s denial of his application
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for a writ of habeas corpus. He asserts that the trial court’s decision was erroneous and that he
demonstrated that his guilty plea was rendered involuntary due to the ineffective assistance of
counsel.
Standard of Review
When reviewing a trial court’s decision to grant or deny habeas relief, we apply an abuse
of discretion standard and we review the evidence in the light most favorable to the trial court’s
ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). A trial court abuses it
discretion when it acts without reference to any guiding rules or principles or when it acts
arbitrarily or unreasonably. Ex parte Ali, 368 S.W.3d 827, 830 (Tex.App. – Austin 2012, pet.
ref’d); Ex parte Wolf, 296 S.W.3d 160, 166 (Tex.App. – Houston [14th Dist.] 2009, pet. ref’d).
In article 11.072 post-conviction habeas corpus cases, the trial court is the sole finder of
fact. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex.Crim.App. 2011). As the fact finder, the
trial court may accept some, all, or none of a witness’s testimony. See Ex parte Peterson, 117
S.W.3d 804, 819 n.68 (Tex.Crim.App. 2003), overruled on other grounds by Ex parte Lewis, 219
S.W.3d 335 (Tex.Crim.App. 2007). We give almost total deference to the trial court’s factual
findings when supported by the record, particularly when the factual findings are based on
credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App. 2006); Ex
parte Thompson, 153 S.W.3d 416, 417-18 (Tex.Crim.App. 2005). Furthermore, we afford
almost total deference to the trial court’s application of law to the facts, also known as mixed
questions of law and fact, if the resolution of the ultimate question turns on an evaluation of
credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. However, we review de
novo those mixed questions of law and fact that do not depend upon evaluation of credibility and
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demeanor. Id.
Ineffective Assistance of Counsel
In order to qualify for habeas corpus relief based on ineffective assistance of counsel, the
applicant must show that counsel’s representation fell below an objective standard of
reasonableness, and that there is a reasonable probability that but for counsel’s deficient
representation the outcome would have been different. Strickland v. Washington, 466 U.S. 668,
669, 104 S.Ct. 2052, 2055-56, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353
(Tex.Crim.App. 2005). The applicant bears the burden of proving counsel’s ineffective
assistance by a preponderance of the evidence. Ex parte Martinez, 330 S.W.3d 891, 901
(Tex.Crim.App. 2011), cert. denied, 131 S.Ct. 3073, 180 L.Ed. 2d 896 (2011). Under the two
prong Strickland analysis, challenges of ineffective counsel when rendering a guilty plea must
first show that counsel did not act as a reasonable, competent attorney. Strickland, 466 U.S. at
669, 104 S.Ct. at 2055-56; See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88
L.Ed.2d 203 (1985). The second prong establishing prejudice must show that counsel’s
ineffective representation affected the plea process to the extent there is a reasonable probability
that but for the representation, the applicant would not have pleaded guilty and would have
insisted on continuing to trial. Strickland, 466 U.S. at 669, 104 S.Ct. at 2055-56; see Hill, 474
U.S. at 58-59, 106 S.Ct. at 370.
Appellant asserts that his guilty plea was involuntary because his counsel was ineffective
in advising him that he would only be required to register as a sex offender for ten years after the
completion of community supervision, and had he known that he would actually be required to
register for life, he would not have pleaded guilty. Appellant’s main evidence in support of his
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assertion is the Williams’ affidavit. Williams admits in his affidavit that he advised Appellant
both the evening before the hearing and the morning of that based on his research of the statute,
he believed the registration requirement would be for ten years after community supervision was
completed. He also maintains that he spoke with Assistant District Attorney Griffith and
received her opinion and that of another Assistant District Attorney that registration was for life,
but still believed he was correct in thinking in Appellant’s case it would be for ten years
following community supervision. Williams and Griffith approached the trial court about this
issue and it suggested that the plea paperwork be changed to reflect that Appellant would register
“as required by law.” Appellant claims that based on the language, “as required by law,” and
the advice of counsel, he believed he would only be required to register for ten years after his
probation was completed and did not find out otherwise until he met with his probation official,
Mendoza, and was told the registration would be for life. He refused to sign the probation
paperwork and Williams came to talk to him. Williams told Appellant and Mendoza that he
thought the paperwork was wrong but to go ahead and sign it and he would find out how to fix it
at a later time.
Although this information is in the affidavits of Appellant, Williams, and Mendoza, it
does not as Appellant states, make it clear that Williams misadvised his client. See Shanklin v.
State, 190 S.W.3d 154, 167 (Tex.App. – Houston [1st Dist.] 2005), pet. dism’d, 211 S.W.3d 315
(Tex.Crim.App. 2007) (the court is not required to believe factual statements contained in an
affidavit, even if there is no evidence to controvert it). The trial court, in its findings of fact
determined that the attestations of Williams and Appellant were not credible in their entirety.
Furthermore, the trial court found:
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13. The record reflects that the applicant signed additional written
admonishments, acknowledging that he understood that the
sex-offender-registration laws contained therein would apply to him and that he
understood that the laws contained therein was not inclusive of all the laws he
would be required to follow after pleading guilty.
14. The sex-offender-registration admonishment form also stated that “[t]he
duty to register for a person with a reportable conviction or adjudication for a
sexually violent offense or for an offense under Section 25.02, 43.05(a)(2), Penal
Code, ends when the person dies.”
. . .
18. At the guilty-plea hearing, the applicant acknowledged that he understood
the contents of the guilty-plea papers and the sex-offender-registration
admonishment forms.
19. At the guilty-plea hearing, Attorney Williams testified that he explained the
guilty-plea papers and the sex-offender-registration admonishment forms to the
applicant.
. . .
45. This Court does not believe that Attorney Williams, who is an experienced
criminal-defense attorney, would not have known that by pleading guilty to
indecency with a child by contact, the applicant would be required to register as a
sex offender for life.
. . .
58. In her affidavit, Ms. Griffith states with absolute certainty that at no point
through all of her discussions regarding the registration issue did she ever have or
express any hesitation, uncertainty, or confusion in her position that the
sex-offender-registration requirement for indecency with a child by contact was
for life.
. . .
61. In her affidavit, Ms. Griffith attests that Mr. Acosta unequivocally agreed
with her that the registration requirement was for life, which she related to
Attorney Williams prior to the applicant’s guilty plea.
. . .
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67. This Court finds the attestations contained within Ms. Griffith’s affidavit to
be credible.
. . .
94. This Court finds no credible evidence that affirmatively proves that
Attorney Williams misadvised the applicant of the lifetime
sex-offender-registration requirement.
We conclude that these factual findings are based on credibility and demeanor and are
supported by the record. As such, we give almost total deference to the trial court and adopt its
determination that the record does not affirmatively demonstrate that Appellant was misadvised
by counsel. Ex parte Amezquita, 223 S.W.3d at 367; Ex parte Thompson, 153 S.W.3d at
417-18.
Appellant claims that he was prejudiced by ineffective counsel because he would not
have pleaded guilty had he known that the registration requirement was for the rest of his life.
He points to correlating information given by Williams that Appellant was concerned with the
registration period and was unwilling to sign the plea agreement when the language listed
registration for life. Williams opines that Appellant would not have pleaded guilty had he
known with certainty that Appellant would be required to register as a sex offender for the rest of
his life. The trial court found evidence that there were other vital factors for Appellant to plead
guilty, specifically a desire to avoid trial and prison time. It pointed out that over a time span of
approximately four years, Appellant moved nine times to continue the case. Additionally, the
trial court found:
103. In his affidavit, the applicant attests that Attorney Williams told him that
he was concerned about the makeup of the prospective jury panel and that he
believed that if the applicant was convicted, the jury would give the applicant
prison time.
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104. In his affidavit, the applicant attests that “I did not want to plead guilty but
my attorney and I were terrified of the thought of me having to do prison time.”
105. In his affidavit, Attorney Williams attests that he was very unhappy with
the makeup of the prospective jury panel and that he was concerned about a jury
convicting the applicant based on his appearance (tattoos, piercings, size, and
haircut).
106. In her affidavit, Ms. Griffith attests that the implication or understanding
by all the parties at the time the applicant pleaded guilty was that the applicant,
who clearly wished to avoid a trial on the charged offenses and possible prison
time, was acquiescing to whatever length of time the law required, even if that
meant lifetime registration.
. . .
109. This Court finds that the applicant’s fear of prison time was a substantial, if
not primary, consideration in his decision to plead guilty.
. . .
113. This Court does not find a reasonable probability that had the applicant
known of the lifetime sex-offender-registration requirement, he would have
insisted on going to trial on three second-degree-felony counts with a punishment
range of 2 to 20 years’ confinement each and subsequent lifetime registration as a
sex offender.
The trial court ultimately came to the determination that Appellant’s assertion that he
would not have pleaded guilty but for counsel’s misinformation regarding the registration
requirement was not credible and a decision to reject the advantageous plea bargain and proceed
to trial would not have been rational. We agree with the trial court’s determination that it
would not have been rational under the circumstances for Appellant to reject the plea bargain and
proceed to trial where he risked being sentenced between two and twenty years in prison for each
of three charges and having to adhere to the same lifetime registration requirement. Ex parte
Ali, 368 S.W.3d at 840. As such, Appellant did not suffer prejudice by the alleged occurrence
of ineffective counsel. Hill, 474 U.S. at 58, 106 S.Ct. at 370. Accordingly, we conclude that
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the trial court did not abuse its discretion in determining that Appellant failed to prove by a
preponderance of the evidence both that counsel was ineffective and that but for the ineffective
counsel, the outcome would have been different. Strickland, 466 U.S. at 669, 104 S.Ct. at
2055-56; Kniatt, 206 S.W.3d at 664; Ex parte Martinez, 330 S.W.3d at 901; Ex parte Peterson,
117 S.W.3d at 819. Issue One is overruled.
The trial court certified Appellant’s right to appeal in this case, but the certification does
not bear Appellant’s signature indicating that he was informed of his rights to appeal and to file a
pro se petition for discretionary review with the Texas Court of Criminal Appeals. See TEX. R.
APP. P. 25.2(d). The certification is defective, and has not been corrected by Appellant’s
attorney, or the trial court. To remedy this defect, this Court ORDERS Appellant’s attorney,
pursuant to TEX. R. APP. P. 48.4, to send Appellant a copy of this opinion and this Court’s
judgment, to notify Appellant of his right to file a pro se petition for discretionary review, and to
inform Appellant of the applicable deadlines. See TEX. R. APP. P. 48.4, 68. Appellant’s
attorney is further ORDERED, to comply with all of the requirements of TEX. R. APP. P. 48.4.
CONCLUSION
We affirm the trial court’s denial of habeas corpus relief.
GUADALUPE RIVERA, Justice
December 27, 2013
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
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