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Date: 04-20-2019

Case Style:

Ex Parte Arthur Lynn Faust Jr.

Case Number: 09-18-00462-CR

Judge: CHARLES KREGER

Court: Court of Appeals Ninth District of Texas at Beaumont

Plaintiff's Attorney: William J. Delmore III
Philip S. Harris

Defendant's Attorney: Randy Schaffer

Description:








Faust rejected a plea bargain offer of deferred adjudication community
supervision without jail time. He alleges this rejection was uninformed, and his
guilty plea without an agreement on punishment was involuntary because of his trial
counselís incorrect advice. Counsel had advised Faust that he was eligible for the
pre-trial diversion Veteranís Court Program but failed to inform Faust of the
programís eligibility requirements. Faust alleged that his counsel advised him that
the trial court would decide whether to allow him to enter the program but failed to
inform him that the State had to agree to his participation in the program. Faust
alleged that had his lawyer provided correct advice, ďFaust would have asked him to
try to negotiate a plea to a misdemeanor; if he could not do so, Faust would have
accepted the offer of deferred adjudication probation without jail time and, when
eligible, moved to seal his record[.]Ē Faustís habeas application did not allege that
3

he would have withdrawn his guilty plea and insisted on going to trial if the trial
court had rejected the plea bargain. The affidavit Faust submitted with his
application is silent as to what he would have done if the State had withdrawn the
offer or the trial court rejected an agreement that did not provide for jail time as a
condition of community supervision.
A reporterís record of the trial court proceedings was submitted as an exhibit to the habeas application. The records show that Faust pled guilty without the benefit of a plea bargain agreement. The trial court accepted the open plea, recessed without
making a finding of guilt, and reconvened on a later date to hear evidence relevant
to sentencing. In the sentencing hearing, the complaining witness testified that she
caught Faust crouching behind her with his arm extended and holding his cellphone
with the screen facing up under her dress. Deputy Richard Jackson testified that he
obtained mall surveillance video that helped him identify Faust as the suspect. In an
interview, Faust admitted that he recorded video of the complaining witness on his
cell phone and that he had engaged in similar behavior between 10 and 100 other
times. Faust consented to a search of his cell phone. Exhibits containing the contents of the phone dump and the surveillance video were admitted in the hearing. Faust testified that he suffers from post-traumatic stress disorder related to his
military service. He claimed he acted impulsively without any thought at all. Faust
4

testified at length about his disorder and the counseling he received to treat his
condition. He explained that he has sole custody of his ten-year-old son. He stated
that he successfully completed deferred adjudication community supervision in the
past. Faust estimated that fifty times he had surreptitiously videoed skirt-wearing
women while shopping at retail locations in The Woodlands, and he admitted he
often had his son with him when he did it. He claimed the thrill was in obtaining the
video, and he would delete them immediately or would watch them once and delete
them. After the complaining witness confronted Faust, he sat in his car, deleted the
videos, and Googled ďUp-Skirt crime in Texas[.]Ē Faust denied receiving any sexual
gratification from the videos. He resigned from the fire department after an internal
affairs investigator informed Faust there would be a formal investigation into his
conduct.
The trial judge noted on the record that, in his opinion, a state jail sentence
might not address Faustís underlying problems, and a term of confinement followed
by community supervision with sex offender treatment would be a more appropriate
sentence. The trial court sentenced Faust to two years of state jail confinement,
probated for five years, with 180 days of state jail confinement as a condition of
probation. The trial court denied Faustís request for deferred adjudication of guilt.
5

In the habeas proceedings before the trial court, Faustís trial counsel provided
an affidavit in which he admitted that he provided deficient advice by informing
Faust that the trial court had the ability to place him in the Veterans Court Program
without the Stateís agreement. The State conceded deficient performance by trial
counsel but argued that Faust failed to prove prejudice. In response, Faust asked for
an evidentiary hearing so that Faust could develop a record that the custom and
practice throughout Texas is that courts accept plea bargain offers almost all the time
in cases involving non-violent offenses. The trial court considered the application,
the Stateís answer, the contents of the Courtís file, and the affidavits and exhibits
submitted to the trial court in the habeas proceeding without holding a live hearing.
The trial court denied relief on findings which included a finding that had the trial
court been presented with a plea offer of deferred adjudication without jail time as a
condition, it would not have accepted the plea offer. The trial court denied Faustís
motion to reconsider, in which Faust argued, ďHad the court rejected the plea bargain
because it did not include jail time as a condition of probation, he would have pled
not guilty and gone to trial.Ē1


1 The motion to reconsider references a supplemental affidavit that is not included in the clerkís record.
6

Appeal Faust argues that his rejection of a plea bargain offer of deferred adjudication
community supervision without jail as a condition was uninformed and his guilty
plea without an agreed recommendation was involuntary because his trial counsel
advised Faust that he was eligible for the pre-trial diversion Veteranís Court Program
without informing Faust that the State had to agree for him to enter the program. To
establish prejudice in a claim of ineffective assistance of counsel in which a
defendant rejects a plea-bargain because of bad legal advice, ďthe applicant must
show a reasonable probability that: (1) he would have accepted the earlier offer if
counsel had not given ineffective assistance; (2) the prosecution would not have
withdrawn the offer; and (3) the trial court would not have refused to accept the plea
bargain.Ē Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). An
applicant for an article 11.072 writ of habeas corpus bears the burden of proving his
claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex.
Crim. App. 2016). Because the trial judge is the sole finder of fact, in the appeal we
afford almost total deference to a trial courtís factual findings, especially findings
based on credibility and demeanor, and conclusions of law when they are supported
by the record. Id. at 42. Here, the trial court found that had it been presented with a
plea offer of deferred adjudication without jail time as a condition, it would not have
7

accepted the plea offer. Therefore, Faust failed to establish that the trial court would
not have refused to accept the plea bargain, as required by Argent. See 393 S.W.3d
at 784.
Faust argues that he established the prejudice necessary to demonstrate that
his guilty plea was involuntary because he would have been entitled to withdraw his
guilty plea as a matter of law if the plea bargain offer had been presented to but
rejected by the trial court. See generally Tex. Code Crim. Proc. Ann. art. 26.13(a)(2)
(West Supp. 2018). However, his habeas application does not allege that he would
have withdrawn his guilty plea and gone to trial if the original plea bargain offer had
been presented to and rejected by the trial court. Further, the affidavit Faust attached
to the habeas application does not state that he would have withdrawn his guilty plea
and gone to trial. In the absence of allegations that he would have pleaded not guilty
and gone to trial, Faustís allegations are insufficient regarding the showing of
prejudice required on a claim of an involuntary plea due to ineffective assistance of
counsel. See Hill v. Lockhart, 474 U.S. 52, 60 (1985).
After the trial court denied the application, Faust alleged that he would have
withdrawn his plea and gone to trial, but we review the record as it existed before
the trial court at the time the trial court made its decision. Ex parte Hernandez, 398
S.W.3d 369, 377 n.2 (Tex. App.óBeaumont 2013, no pet.). When the trial court
8

denied the habeas application, the trial court did not have evidence before it that
Faust would have withdrawn his guilty plea if a plea bargain offer had been rejected
by the trial court because it did not provide for jail time. Moreover, Faust claims in
his appeal that avoiding jail time was so important that he would have gone to trial if the plea bargain had been presented to and rejected by the trial court, but given the strength of the Stateís case against him, it would have been irrational to insist on
going to trial and risk two years of incarceration to avoid a shorter period of
incarceration required as a condition of community supervision.
In his appellate brief, Faust argues the trial court erred in refusing to conduct
a hearing to address Faustís claim that he would have pled not guilty and gone to
trial after the trial court informed the parties that a plea bargain agreement without
jail as a condition would have been rejected. Article 11.072 allows but does not
require the habeas court to hold a hearing. See Tex. Code Crim. Proc. Ann. art.
11.072, ß 6(b); see also Ex parte Aguilar, 501 S.W.3d 176, 178 (Tex. App.ó
Houston [1st Dist.] 2016, no pet.) (ď[A]rticle 11.072 does not require the trial court
to hold any hearingólet alone an evidentiary hearingóbefore rendering its
decision.Ē). Faust claims the affidavit he filed with his habeas application did not address the subject of whether the trial court could have accepted or rejected the plea because
9

he did not know that the trial court would have rejected the plea bargain until the
trial court signed the written findings. When Faust submitted his habeas application,
he knew that the finding was required for him to obtain relief and that it was possible
that the trial court would find that it would have rejected the plea bargain. See Argent,
393 S.W.3d at 784. Article 11.072 expressly allows the trial court to use its
recollection of the proceedings in determining whether the applicant is entitled to
relief. See Tex. Code Crim. Proc. Ann. art. 11.072, ß 6(b). Without a hearing, Faust
could refer the trial court to those parts of the proceedings that would support his argument that the plea bargain would have been accepted by the trial court.2 The fact
that the trial court declined to defer adjudication of guilt and assessed jail time as a
condition of community supervision supports the trial courtís habeas finding that a
plea bargain offer that did not include jail time would have been rejected, but that is
a function of the facts of the case, not an undeveloped record. We conclude that Faust has not shown that the trial court abused its discretion by not holding a hearing.

2 For instance, Faust could argue the trial court would have been receptive to a sentence that did not involve jail time if the Stateís plea bargain offer had been presented to the judge for approval as a plea bargain agreement because the presentencing information record would have included information, such as that developed in his sentencing hearing, concerning Faustís struggles with posttraumatic stress disorder and his attempts to address his condition through a program designed for veterans.
10

In view of the totality of the record, and deferring to the habeas courtís
findings of fact, we conclude that Faust has failed to demonstrate that, but for
counselís deficient performance, he would have accepted the plea bargain offer and
the trial court would have accepted the plea. Further, in view of the totality of the
record, and deferring to the habeas courtís findings of fact, we conclude that Faust
has failed to demonstrate that, but for counselís errors, Faust would have withdrawn
his plea and insisted on going to trial if the trial court rejected the plea bargain
agreement. Because Faust failed to adequately show that he was prejudiced due to
counselís erroneous advice, the trial court did not abuse its discretion by denying
habeas relief.

Outcome: We affirm the trial courtís order denying the appellantís application for a writ of habeas corpus.

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