Ex parte Nelson

546 S.W.3d 742

EX PARTE Nii-Otabil NELSON

NO. 01-17-00655-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 15, 2018

Alphonsus O. Ezeoke, 11806 Wilcrest Drive, Suite 222, Houston, Texas 77031, for Appellant.

Kim Ogg, District Attorney, Chris Conrad, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002, for State.

Panel consists of Justices Jennings, Keyes, and Higley.

OPINION

Laura Carter Higley, Justice

Appellant, Nii-Otabil Nelson, appeals from the trial court’s order, signed on August 11, 2017, denying his third application for a writ of habeas corpus, filed under article 11.072 of the Texas Code of Criminal Procedure. We affirm.

Background

On April 15, 2014, after being charged with injury to a child, a third-degree felony, Nelson, with counsel, pleaded nolo contendere or no contest to the reduced charge of assault—bodily injury, a class A misdemeanor. See TEX. PENAL CODE ANN. §§ 22.04(a)(3), (f), 22.01(a)(1), (b) (West 2017); see also Ex parte Nii-Otabil Nelson , No. 01-14-00924-CR, 2015 WL 3981577, at *1-2 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication). On the same day, the trial court signed an order of deferred adjudication of Nelson’s guilt and placed him on community supervision for 18 months. See Ex parte Nelson , 2015 WL 3981577, at *1.

On April 28, 2015, the trial court signed an order unsatisfactorily terminating Nelson from his community supervision. Nelson attempted to appeal from an earlier order modifying the terms of his community supervision, but this Court dismissed that appeal for want of jurisdiction in 2015. See Nelson v. State , No. 01-15-00248-CR, 2015 WL 3981572, at *4 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication).

A. Nelson’s First Habeas Corpus Application

On May 30, 2014, through habeas counsel, Nelson had filed his first article 11.072 habeas corpus application, challenging the legal validity of the April 15, 2014 order of deferred adjudication in which community supervision was imposed, and this application was assigned to trial court cause number 1372073-A. See TEX. CODE CRIM. PROC. ANN. art. 11.072, §§ 1, 2(b)(1) (West 2017) ; see also Ex parte Nelson , 2015 WL 3981577, at *1. Nelson alleged that his no-contest plea was involuntary because his trial counsel had provided him ineffective assistance for not explaining the ramifications of his plea on his future as a medical professional. See Ex parte Nelson , 2015 WL 3981577, at *1-2.

On September 22, 2014, the habeas court denied Nelson’s first habeas application. See Ex parte Nelson , 2015 WL 3981577, at *1. In 2015, this Court affirmed the denial of Nelson’s first habeas application, which alleged ineffectiveness of trial counsel. See id. at *6.

B. Nelson’s Second Habeas Corpus Application

On August 17, 2016,¹ Nelson, through new habeas counsel, served his second article 11.072 habeas corpus application in the trial court, entitled "Second Actual Innocence Application for Writ of Habeas Corpus," which was assigned to trial court cause number 1372073-B. See Ex parte Nii-Otabil Nelson , No. 01-17-00152-CR, 2017 WL 1149214, at *1 (Tex. App.—Houston [1st Dist.] Mar. 28, 2017, no pet.) (mem. op., not designated for publication) (hereinafter, " Ex parte Nelson II "). Nelson alleged in his second habeas application that he was actually innocent of the reduced class A misdemeanor charge of assault—bodily injury involving his son, A.T.N, to which he had pleaded no-contest and had been placed on 18-months community supervision in 2014. See Ex parte Nelson II , 2017 WL 1149214, at *1. Nelson did not claim to be currently confined as a result of his no-contest plea, but he asserted that he was suffering the collateral consequences of being unemployed. In addition to his own affidavit, Nelson supported his second habeas corpus application by attaching the police report and two affidavits from his other son, O.A.N., a typewritten one signed on May 13, 2016, and a handwritten one signed on August 10, 2016. Nelson claimed that these two affidavits constituted newly discovered evidence proving his actual innocence. In his affidavit, O.A.N. clarified that he had only heard what he thought was Nelson’s assault on A.T.N., but he did not see it in person, and that he had previously exaggerated his story.

On August 10, 2016, the habeas court signed findings of fact, conclusions of law, and an order denying Nelson’s second habeas application. See Ex parte Nelson II , 2017 WL 1149214, at *1. The court’s order concluded, among other things, that Nelson had failed to allege sufficient facts establishing that his claims could not have been presented previously in his first habeas application, as required by article 11.072, section 9. See id. In 2017, this Court dismissed for want of jurisdiction as untimely Nelson’s appeal from his second habeas application. See id. at *2.

C. Nelson’s Third Habeas Corpus Application

On July 14, 2017, Nelson, through current habeas counsel, served this third article 11.072 habeas application in the trial court, which was assigned to the underlying trial court cause number 1372073-C. Nelson again alleges in this third habeas application, entitled "Third Actual Innocence Application for Writ of Habeas Corpus," that he is actually innocent of the class A misdemeanor charge of assault—bodily injury, involving his son, A.T.N., to which he had pleaded no contest and had been later placed on community supervision in 2014. Nelson’s third habeas application again attaches his affidavit, the police report and the same two affidavits from O.A.N., the typewritten one signed on May 13, 2016, and the handwritten one signed on August 10, 2016. The State filed an answer and proposed findings of fact and conclusions of law on August 11, 2017.

The Habeas Court’s Findings of Fact and Conclusions of Law

Without a hearing, the habeas court adopted and signed the "State’s Proposed Findings of Fact, Conclusions of Law, and Order" on August 11, 2017, denying Nelson’s third habeas application, assigned to trial court cause number 1372073-C. The court entered the following findings and conclusions:

FINDINGS OF FACT

1. The applicant, Nii-Otabil Nelson, is confined² pursuant to the judgment and sentence of the 182nd District Court of Harris County, Texas, in cause number 1372073 (the primary case).

2. On April 15, 2014, the applicant pled nolo contendere to the Class A offense of misdemeanor assault and the Court placed him on an 18-month deferred adjudication without making a finding of guilt. On April 28, 2015, the Court entered an order unsatisfactorily terminating the applicant from deferred adjudication.

3. The Court denied the applicant’s first application for writ of habeas corpus in cause number 1372073-A on September 22, 2014.

4. The Court denied the applicant’s second application for writ of habeas corpus in cause number 1372073-B on August 10, 2016.

5. The applicant filed the instant application, which is his third application for writ of habeas corpus, on July 14, 2017.

6. The applicant fails to establish that the current claims could not have been presented in the applicant’s previous applications for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 9(a) (West 2015).

CONCLUSIONS OF LAW

1. All subsequent writ applications filed after final disposition of an initial application must meet the requirements of Article 11.072 Section 9(a) by including sufficient specific facts establishing that the current claims have not been and could not have been presented previously because the factual or legal basis for the claim was unavailable. Ex parte Villanueva, 252 S.W.3d 391, 396 (Tex. Crim. App. 2008) (citing TEX. CODE CRIM. PROC. ANN. art. 11.072 ).

2. The factual and legal bases for the applicant’s complaints in the instant case were available on the dates the applicant filed his previous applications for writ of habeas corpus in cause numbers 1372073-A and 1372073-B. See TEX. CODE CRIM. PROC. ANN. art. 11.072 § 9(a) (West 2015).

3. The applicant fails to meet the requirements of Article 11.072 Section 9(a).

4. In all things, the applicant fails to prove that his conviction was improperly obtained.

Based on these findings and conclusions, the habeas court denied Nelson’s third habeas application on August 11, 2017. Also on August 11, 2017, Nelson, through current habeas counsel, timely filed a notice of appeal from the habeas court’s order denying his third habeas application under trial court cause number 1372073-C. On the same date, the trial court signed a certification of Nelson’s right of appeal, which stated that this was a plea-bargain case, but that the trial court had given Nelson permission to appeal from the order denying his habeas corpus application. See TEX. R. APP. P. 25.2(a)(2).

D. Proceedings in this Court

On October 31, 2017, Nelson, acting pro se, filed an appellate brief in this Court. The State filed its appellate brief on December 29, 2017 and pointed out that Nelson’s brief was the same one that his counsel had previously filed in the appeal from the denial of his second habeas application under appellate cause number 01-17-00152-CR. The State noted that Nelson had left the second habeas application’s trial court cause number 1372073-B on the cover of his brief and stated that this appeal was from the August 10, 2016 denial of his second habeas application based solely on his actual innocence argument. On January 11, 2018, Nelson filed a pro se reply letter in response.

DISCUSSION

A. Standard of Review

Texas Code of Criminal Procedure article 11.072 establishes the procedure for an applicant to seek habeas corpus relief "from an order or a judgment of conviction ordering community supervision." TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (West 2017) ; see also Ex parte Ibarra , No. 01-16-00313-CR, 2017 WL 1175557, at *2 (Tex. App.—Houston [1st Dist.] Mar. 30, 2017...