Ex Parte David Sidney McKeand

• Court: Court of Appeals of Texas
• Decided: February 10, 2015
• Docket: 01-14-00126-CR
• Status: Published

Opinion

Order issued February 10, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00126-CR ——————————— EX PARTE DAVID SIDNEY MCKEAND, Appellant

On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas Trial Court Case No. 1932729

MEMORANDUM ORDER

Appellant, David Sidney McKeand, challenges the trial court’s denial of his

application for writ of habeas corpus in relation to his conviction for driving while

intoxicated (“DWI”). This Court issued its original opinion in this case on August

5, 2014. Appellant subsequently moved for rehearing. In our August 5, 2014 opinion, we affirmed the trial court’s denial of habeas

relief on the basis that, by failing to file a complete record, appellant presented

nothing for our review and thus failed to meet his burden to prove that he was

entitled to relief by a preponderance of the evidence. See Ex parte Richardson, 70

S.W.3d 865, 870 (Tex. Crim. App. 2002) (holding that, in proceeding to review

denial of application of writ of habeas corpus, applicant bears burden of proving

that he is entitled to relief by preponderance of evidence); Ex parte Henderson,

565 S.W.2d 50, 51–52 (Tex. Crim. App. 1978) (holding that trial court’s judgment

in habeas corpus proceeding will be affirmed if appellant fails to request or, if

appellant is able to do so, pay for reporter’s record); In re Mott, 137 S.W.3d 870,

875 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding) (holding that, in

absence of reporter’s record, appellate court considering trial court’s denial of

habeas corpus application will presume that there was evidence to support trial

court’s judgment).

Following the issuance of our August 5, 2014 opinion and judgment,

appellant filed the reporter’s record of the hearing on his application for writ of

habeas corpus and a motion for rehearing. He argued that all of the evidence

considered by the trial court was contained in his affidavit filed with his

application for writ of habeas corpus and that his affidavit was sufficient to show

2 that he inadequately represented himself in his DWI case and that his plea was

involuntary.

However, appellant’s affidavit attached to his application provided only his

unsupported statement that he provided ineffective representation to himself on the

DWI offense and that he was coerced into entering the plea agreement by the

State’s threat to prosecute him on both the DWI offense and an additional felony

evading arrest charge.

Appellant argues that he had a right to effective representation in the guilty-

plea proceedings. See Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App.

2009). However, “when a convicted defendant has insisted upon self-

representation, any subsequent claim of ineffective assistance of counsel is not to

be considered.” Perez v. State, 261 S.W.3d 760, 766 (Tex. App.—Houston [14th

Dist.] 2008, pet. ref’d). Appellant represented himself pro se in the underlying

DWI proceedings, and he provides no argument or evidence that he requested and

was denied appointed counsel or that he was improperly admonished regarding the

consequences of proceeding pro se. Accordingly, we cannot consider his claim of

ineffective assistance of counsel. See id.

Likewise, to assess the voluntary nature of a plea, a court must ask whether

the plea represents a voluntary and intelligent choice among the alternative courses

of action open to the defendant. Solomon v. State, 39 S.W.3d 704, 707 (Tex.

3 App.—Corpus Christi 2001, no pet.). However, appellant has provided no

evidence beyond his conclusory statement that his plea was coerced to support his

claim that his plea was involuntary. See id.; see also Kniatt v. State, 206 S.W.3d

657, 664 (Tex. Crim. App. 2006) (“An applicant seeking habeas corpus relief on

the basis of an involuntary guilty plea must prove his claim by a preponderance of

the evidence.”).

Thus, nothing in the record meets appellant’s burden of proving that he is

entitled to relief by a preponderance of the evidence. See Ex parte Richardson, 70

S.W.3d at 870. Accordingly, we deny the motion for rehearing.

PER CURIAM

Panel consists of Justices Keyes and Huddle.1

1 The Honorable Jim Sharp, former Justice of this Court, was a member of the Panel and participated in deciding this case. Because his term expired on December 31, 2014, he did not participate in deciding the motion for rehearing. See TEX. R. APP. P. 49.3 (“A motion for rehearing may be granted by a majority of the justices who participated in the decision of the case. Otherwise it must be denied.”). 4