Court of Appeals Tenth Appellate District of Texas
10-24-00281-CR
Ex Parte Samuel Ukwuachu
On appeal from the 54th District Court of McLennan County, Texas Judge Grant Kinsey, presiding Trial Court Cause No. 2014-1202 C2A
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
Samuel Ukwuachu was convicted of sexual assault 1 and sentenced to
eight years in prison. The trial court suspended the sentence and placed
Ukwuachu on community supervision for 10 years. Ukwuachu timely filed a
motion for new trial, which was denied. This Court affirmed his conviction.
See Ukwuachu v. State, No. 10-15-00376-CR, 2022 Tex. App. Lexis 7284 (Tex.
App.—Waco Sept. 28, 2022, no pet.) (not designated for publication).
Ukwuachu then filed an Application for Writ of Habeas Corpus with the
trial court. Finding an evidentiary hearing was not required, the trial court
1 There is no need to discuss the factual background of this offense. denied relief on Ukwuachu’s application and issued findings of fact and
conclusions of law. Ukwuachu appeals the trial court’s ruling, raising six
issues for our review. We affirm the trial court's Order denying relief on
Ukwuachu’s Application for Writ of Habeas Corpus
STANDARD OF REVIEW
Article 11.072 of our Code of Criminal Procedure "establishes the
procedures for an application for a writ of habeas corpus in a felony or
misdemeanor case in which the applicant seeks relief from an order or
judgment of conviction ordering community supervision." TEX. CODE CRIM.
PROC. art. 11.072 Sec. 1; In re Sinclair, 693 S.W.3d 346, 352 (Tex. Crim. App.
2024). An applicant for a 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). We presume the regularity of the trial court's
judgment and underlying proceedings absent a showing to the contrary. Ex
parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Brown v. State, 917
S.W.2d 387, 390 (Tex. App.—Fort Worth 1996, pet. ref'd) (per curiam).
We review the trial court's denial of habeas relief for an abuse of
discretion and 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); Ex
parte Falk, 449 S.W.3d 500, 503 (Tex. App.—Waco 2014, pet. ref'd). A court
Ex Parte Ukwuachu Page 2 abuses its discretion if its decision lies outside the zone of reasonable
disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990) (op. on reh'g); Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref'd).
In a post-conviction writ application filed pursuant to Article 11.072, the
trial judge is the sole finder of fact. Ex parte Torres, 483 S.W.3d 35, 42 (Tex.
Crim. App. 2016); State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App.
2013). In this setting, we afford almost total deference to a trial court's factual
findings when they are supported by the record, especially when those findings
are based upon credibility and demeanor. Id. Pure questions of law and
application-of-law-to-fact questions that do not turn on credibility and
demeanor are reviewed de novo. Ex parte Beck, 541 S.W.3d 846, 852 (Tex.
Crim. App. 2017).
ENTITLEMENT TO HEARING
In his first issue, Ukwuachu contends the trial court erred 2 in
determining that an evidentiary hearing on his application was not required
because there were no controverted previously unresolved facts material to the
legality of Ukwuachu’s confinement. In presenting error to this Court, an
2 We note that this is the only issue in which Ukwuachu contends the trial court erred. In the remaining issues, Ukwuachu does not express any sort of error by the trial court. Due to our disposition of the remaining issues, we need not discuss the ramifications of this deficiency.
Ex Parte Ukwuachu Page 3 appellant's brief must contain "argument for the contentions made, with
appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i);
Neville v. State, 622 S.W.3d 99, 104 (Tex. App.—Waco 2020, no pet.).
Ukwuachu cites to no legal authority to support his claim that the trial court
erred.
Accordingly, Ukwuachu’s issue is improperly briefed and presents
nothing for review. See id.; Solis v. State, No. AP-77,109, 2025 Tex. Crim. App.
LEXIS 795, at *35 (Crim. App. Oct. 30, 2025) (publish); Lucio v. State, 351
S.W.3d 878, 896 (Tex. Crim. App. 2011); see also Neville, 622 S.W.3d at 104.
Issue I is overruled.
FALSE TESTIMONY
In his second and third issues, Ukwuachu contends the State’s use of
“unsubstantiated” phone records during the cross examination of defense
witnesses Ratu Peni Tagive and Morgan Reed violated Ukwuachu’s due
process rights guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution and Article I, Section 19 of the Texas Constitution.
Specifically, he claims that the use of the phone records constituted “false
testimony.”
The trial court determined that Ukwuachu was not entitled to relief
because “these issues were presented and overruled on direct appeal, thus
Ex Parte Ukwuachu Page 4 precluding a reconsideration of these matters on habeas review.” 3 Ukwuachu
does not dispute the trial court’s finding that these claims had been presented
and overruled on direct appeal. Rather, Ukwuachu contends that the previous
litigation of an issue does not necessarily bar reconsideration on habeas corpus.
However, Ukwuachu fails to explain why his claims should have been
reconsidered.
Generally, post-conviction habeas corpus review cannot be used to re-
litigate matters which were, or could have been, addressed on direct appeal.
See Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017); Ex parte Drake,
883 S.W.2d 213, 215 (Tex. Crim. App. 1994). This is because claims that have
already been raised and rejected are not cognizable on a post-conviction
collateral attack. See Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App.
2006); see also Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984).
However, a previously litigated issue can be subject to collateral attack where
a prior judgment is subsequently rendered void or where relief may be
retroactively applied after a subsequent change in the law. See Drake, 883
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Court of Appeals Tenth Appellate District of Texas
10-24-00281-CR
Ex Parte Samuel Ukwuachu
On appeal from the 54th District Court of McLennan County, Texas Judge Grant Kinsey, presiding Trial Court Cause No. 2014-1202 C2A
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
Samuel Ukwuachu was convicted of sexual assault 1 and sentenced to
eight years in prison. The trial court suspended the sentence and placed
Ukwuachu on community supervision for 10 years. Ukwuachu timely filed a
motion for new trial, which was denied. This Court affirmed his conviction.
See Ukwuachu v. State, No. 10-15-00376-CR, 2022 Tex. App. Lexis 7284 (Tex.
App.—Waco Sept. 28, 2022, no pet.) (not designated for publication).
Ukwuachu then filed an Application for Writ of Habeas Corpus with the
trial court. Finding an evidentiary hearing was not required, the trial court
1 There is no need to discuss the factual background of this offense. denied relief on Ukwuachu’s application and issued findings of fact and
conclusions of law. Ukwuachu appeals the trial court’s ruling, raising six
issues for our review. We affirm the trial court's Order denying relief on
Ukwuachu’s Application for Writ of Habeas Corpus
STANDARD OF REVIEW
Article 11.072 of our Code of Criminal Procedure "establishes the
procedures for an application for a writ of habeas corpus in a felony or
misdemeanor case in which the applicant seeks relief from an order or
judgment of conviction ordering community supervision." TEX. CODE CRIM.
PROC. art. 11.072 Sec. 1; In re Sinclair, 693 S.W.3d 346, 352 (Tex. Crim. App.
2024). An applicant for a 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). We presume the regularity of the trial court's
judgment and underlying proceedings absent a showing to the contrary. Ex
parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Brown v. State, 917
S.W.2d 387, 390 (Tex. App.—Fort Worth 1996, pet. ref'd) (per curiam).
We review the trial court's denial of habeas relief for an abuse of
discretion and 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); Ex
parte Falk, 449 S.W.3d 500, 503 (Tex. App.—Waco 2014, pet. ref'd). A court
Ex Parte Ukwuachu Page 2 abuses its discretion if its decision lies outside the zone of reasonable
disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990) (op. on reh'g); Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref'd).
In a post-conviction writ application filed pursuant to Article 11.072, the
trial judge is the sole finder of fact. Ex parte Torres, 483 S.W.3d 35, 42 (Tex.
Crim. App. 2016); State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App.
2013). In this setting, we afford almost total deference to a trial court's factual
findings when they are supported by the record, especially when those findings
are based upon credibility and demeanor. Id. Pure questions of law and
application-of-law-to-fact questions that do not turn on credibility and
demeanor are reviewed de novo. Ex parte Beck, 541 S.W.3d 846, 852 (Tex.
Crim. App. 2017).
ENTITLEMENT TO HEARING
In his first issue, Ukwuachu contends the trial court erred 2 in
determining that an evidentiary hearing on his application was not required
because there were no controverted previously unresolved facts material to the
legality of Ukwuachu’s confinement. In presenting error to this Court, an
2 We note that this is the only issue in which Ukwuachu contends the trial court erred. In the remaining issues, Ukwuachu does not express any sort of error by the trial court. Due to our disposition of the remaining issues, we need not discuss the ramifications of this deficiency.
Ex Parte Ukwuachu Page 3 appellant's brief must contain "argument for the contentions made, with
appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i);
Neville v. State, 622 S.W.3d 99, 104 (Tex. App.—Waco 2020, no pet.).
Ukwuachu cites to no legal authority to support his claim that the trial court
erred.
Accordingly, Ukwuachu’s issue is improperly briefed and presents
nothing for review. See id.; Solis v. State, No. AP-77,109, 2025 Tex. Crim. App.
LEXIS 795, at *35 (Crim. App. Oct. 30, 2025) (publish); Lucio v. State, 351
S.W.3d 878, 896 (Tex. Crim. App. 2011); see also Neville, 622 S.W.3d at 104.
Issue I is overruled.
FALSE TESTIMONY
In his second and third issues, Ukwuachu contends the State’s use of
“unsubstantiated” phone records during the cross examination of defense
witnesses Ratu Peni Tagive and Morgan Reed violated Ukwuachu’s due
process rights guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution and Article I, Section 19 of the Texas Constitution.
Specifically, he claims that the use of the phone records constituted “false
testimony.”
The trial court determined that Ukwuachu was not entitled to relief
because “these issues were presented and overruled on direct appeal, thus
Ex Parte Ukwuachu Page 4 precluding a reconsideration of these matters on habeas review.” 3 Ukwuachu
does not dispute the trial court’s finding that these claims had been presented
and overruled on direct appeal. Rather, Ukwuachu contends that the previous
litigation of an issue does not necessarily bar reconsideration on habeas corpus.
However, Ukwuachu fails to explain why his claims should have been
reconsidered.
Generally, post-conviction habeas corpus review cannot be used to re-
litigate matters which were, or could have been, addressed on direct appeal.
See Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017); Ex parte Drake,
883 S.W.2d 213, 215 (Tex. Crim. App. 1994). This is because claims that have
already been raised and rejected are not cognizable on a post-conviction
collateral attack. See Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App.
2006); see also Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984).
However, a previously litigated issue can be subject to collateral attack where
a prior judgment is subsequently rendered void or where relief may be
retroactively applied after a subsequent change in the law. See Drake, 883
S.W.2d at 215. Ukwuachu has not argued or even suggested that either of
these exceptions apply to his claims.
Accordingly, the trial court did not err in determining that
3 The Court of Criminal Appeals disposed of these claims in Ukwuachu v. State, 613 S.W.3d 149, 157- 158 (Tex. Crim. App. 2020).
Ex Parte Ukwuachu Page 5 reconsideration of these two claims was precluded. Issues II and III are
overruled.
ABUSE OF GRAND JURY
Next, Ukwuachu claims prosecutors abused the grand jury process to
intimidate Tagive as a defense witness by threatening Tagive with charges of
Aggravated Perjury if he testified at trial which violated Ukwuachu’s rights
under the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 19 of the Texas Constitution. The trial court
determined that this claim was also raised and rejected on direct appeal, 4 and
denied relief on this claim because “habeas corpus should not be used to re-
litigate matters which were addressed on appeal.” Ukwuachu does not dispute
this determination and again has not asserted an exception to the general rule
of cognizability. See Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App.
2017); Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).
Accordingly, the trial court did not err in denying this claim. Issue IV is
PROSECUTORIAL MISCONDUCT
In his fifth issue, Ukwuachu contends the “illegal use of the Grand Jury”
and “the use of…unsubstantiated telephone records constituted prosecutorial
4 See Ukwuachu v. State, No. 10-15-00376-CR, 2022 Tex. App. LEXIS 7284, *8-10 (Tex. App.—Waco Sep. 28, 2022, no pet.) (not designated for publication).
Ex Parte Ukwuachu Page 6 misconduct and violated [Ukwuachu’s] due process rights….” Specifically,
Ukwuachu complains that:
[t]he prosecutor’s reference to the contents of telephone records not in evidence, the improper questioning of witnesses by the prosecutor, and the illegal use of the grand jury to intimidate the defense witness, so infected the trial with unfairness as to make the resulting conviction a denial of due process.
Ukwuachu’s argument regarding this issue consists of the citation of two
cases: one for the proposition that “[a] prosecutor’s reference to facts not in
evidence in a manner that prejudices the defense may constitute reversible
error. See, e.g., Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011);”
the other for the proposition that “…improper prosecutorial questioning of
witnesses may rise to the level of a due process violation. See Greer v. Miller,
483 U.S.756, 765 (1987)….” Those statements constitute Ukwuachu’s entire
argument. There is no application of the facts the trial court had before it to
this particular law and no argument that this application would support a
determination of prosecutorial misconduct rising to the level of a due process
violation to such an extent that the trial court abused its discretion in holding
otherwise.
Accordingly, this issue is inadequately briefed and presents nothing for
review; we are under no obligation to make Ukwuachu’s arguments for him.
See TEX. R. APP. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim.
Ex Parte Ukwuachu Page 7 App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)
(affirming that this Court has no obligation "to construct and compose" a
party's "issues, facts, and arguments with appropriate citations to authorities
and to the record” (internal quotes omitted)). Issue V is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his last issue, Ukwuachu contends his trial counsel rendered
ineffective assistance in a number of instances.
Habeas applicants who seek relief based on ineffective assistance of
counsel must demonstrate that (1) counsel's performance was deficient, in that
it fell below an objective standard of reasonableness, and (2) the applicant was
prejudiced as a result of counsel's errors, in that, but for those errors, there is
a reasonable probability of a different outcome. Ex parte Torres, 483 S.W.3d
35, 43 (Tex. Crim. App. 2016) (citing Strickland v. Washington, 466 U.S. 668,
687, 693, 104 S. Ct. 2052, 2064, 2067-68, 80 L. Ed. 2d 674 (1984)). If the
applicant fails to make a showing under either prong, his claim for ineffective
assistance must be denied. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.
App. 2003); In re Chitale, Nos. 10-23-00148-CR, 10-23-00149-CR, 2024 Tex.
App. LEXIS 6148, at *4 (Tex. App.—Waco Aug. 22, 2024, no pet.) (not
designated for publication) (appeal of denial of art. 11.072 writ of habeas
corpus application).
Ex Parte Ukwuachu Page 8 Ukwuachu notes some alleged failures of his trial counsel which he
contends fell below an objective standard of reasonableness. However, this is
where his analysis stops. He presents no analysis or argument as to whether
he was prejudiced as a result of his trial counsel’s alleged errors, meaning that,
but for those errors, there was a reasonable probability of a different outcome.
Accordingly, Ukwuachu failed to demonstrate the second prong of his
ineffective assistance of counsel claim, and his issue on appeal must be denied.
Issue VI is overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s Order
denying relief on Ukwuachu’s Application for Writ of Habeas Corpus.
LEE HARRIS Justice
OPINION DELIVERED and FILED: December 18, 2025 Before Justice Smith, Justice Harris, and Justice Davis 5 Affirmed Do Not Publish OT06
5 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
Ex Parte Ukwuachu Page 9