Ex Parte Paul Houston Lavalle v. the State of Texas

Affirmed and Memorandum Opinion filed December 5, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00256-CR
NO. 14-23-00257-CR

EX PARTE PAUL HOUSTON LAVALLE, Appellant

On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause Nos. 19-CR-0918-83-1 & 19-CR-0918-83-2

MEMORANDUM OPINION

Appellant Paul Houston LaValle appeals the denial of his applications for
habeas corpus in case numbers 14-23-00256-CR (trial court cause number 19-CR-
0918-83-2) and 14-23-00257-CR (trial court cause number 19-CR-0918-83-1).
Appellant contends (1) he is legally innocent of the charged offense; (2) the trial
court’s findings of fact and conclusions of law were clearly erroneous; (3) he was
denied effective assistance of counsel at trial; and (4) he was denied effective
assistance of counsel on appeal. We affirm.
BACKGROUND

During an investigation regarding whether he furnished alcohol to a minor at
his house in October 2018, Appellant prepared two affidavits that contained false
information about whether he had furnished alcohol to minors Sandy1 and
Deborah. One affidavit was signed by Sandy, and the other affidavit was signed
by Appellant’s acquaintance Jill. Appellant’s attorney presented the two affidavits
to the police during the investigation. Once the police found out that the affidavits
purporting to exculpate Appellant contained false statements, Appellant was
charged in two counts with tampering with or fabricating physical evidence under
section 37.09(a)(2) of the Texas Penal Code. See Tex. Penal Code Ann. §
37.09(a)(2).

A jury trial was held, and the jury charge instructed the jury as to each count
as follows: “Now, if you find . . . [Appellant] did then and there, knowing that an
investigation was in progress, namely furnishing alcohol to a minor, intentionally
or knowingly make and/or present a document, namely the affidavit of [Sandy/Jill],
with knowledge of its falsity and with intent to affect the course or outcome of the
furnishing alcohol to minor investigation, then you will find [Appellant] guilty of
Tampering with Physical Evidence as charged in the Indictment.” The jury found
Appellant guilty as charged in both counts, and the trial court placed Appellant on
community supervision for five years on both counts. Appellant filed an appeal
challenging the legal sufficiency of his conviction, and this Court affirmed his
third-degree felony conviction for tampering with or fabricating physical evidence.
See Lavalle v. State, No. 14-20-00245-CR, 2021 WL 3924002, at *1-9 (Tex.
App.—Houston [14th Dist.] Sept. 2, 2021, pet. ref’d) (mem. op., not designated for
publication).

1
To protect their identity, we continue to refer to minors using fictitious names.

2
In December 2022, Appellant filed two applications for writ of habeas
corpus, seeking relief under article 11.072 of the Texas Code of Criminal
Procedure.2 Appellant’s application for writ of habeas corpus in case number 14-
23-00256-CR (19-CR-0918-83-2) challenged his conviction and sentence relating
to count one of the indictment, and his application in case number
14-23-00257-CR (19-CR-0918-83-1) challenged his conviction and sentence
relating to count two of the indictment. Because Appellant asserted that he was
denied effective assistance by his trial and appellate counsel, the trial court issued
an Order designating Issues of Fact and directing Applicant’s Attorney’s to submit
affidavits. Both attorneys submitted their respective affidavits. In February 2023,
the State filed an answer, and Appellant filed his reply. On February 17, 2023, the
trial court signed findings of fact and conclusions of law and denied both of
Appellant’s applications for writ of habeas corpus.3 Appellant filed timely notices
of appeal.

ANALYSIS

Appellant presents four issues on appeal, arguing (1) he is legally innocent
of the charged offense; (2) the trial court’s findings of fact and conclusions of law
were clearly erroneous; (3) he was denied effective assistance of counsel at trial;
and (4) he was denied effective assistance of counsel on appeal. We address each
issue in turn.

I. Standard of Review

The writ of habeas corpus is “an extraordinary remedy” to be used when one

2
“This article 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 a judgment of
conviction ordering community supervision.” Tex. Code Crim. Proc. Ann. art. 11.072, § 1.
3
Appellant asserts in his brief that his “probation was terminated early by the trial court
on 09/22/23.”

3
is restrained in one’s liberty. Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim.
App. 2014); Ex parte Onyeahialam, 558 S.W.3d 740, 743 (Tex. App.—Houston
[14th Dist.] 2018, pet. ref’d). Article 11.072 of the Code of Criminal Procedure
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; Ex parte Nelson, 546 S.W.3d 742, 746 (Tex.
App.—Houston [1st Dist.] 2018, no pet.); Ex parte Reed, 402 S.W.3d 39, 41 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d). This court has jurisdiction to
consider appeals of denials of habeas corpus relief in cases in which community
supervision has been ordered under article 11.072. Tex. Code Crim. Proc. Ann.
art. 11.072, § 8; Ex parte Nelson, 546 S.W.3d at 746; Ex parte Reed, 402 S.W.3d at
41.

We review a ruling on an application for writ of habeas corpus for an abuse
of discretion. Ex parte Allen, 619 S.W.3d 813, 816 (Tex. App.—Houston [14th
Dist.] 2020, pet. ref’d); see Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim.
App. 2011). We decide whether a trial court abused its discretion by determining
whether the court acted without reference to any guiding rules or principles, or in
other words, whether the court acted arbitrarily or unreasonably. Ex parte Allen,
619 S.W.3d at 816; Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d). A trial court abuses its discretion if its decision lies
outside the zone of reasonable disagreement. Ex parte Onyeahialam, 558 S.W.3d
at 743; Ex parte Wolf, 296 S.W.3d at 166. An applicant seeking post-conviction
habeas corpus relief shoulders the burden to establish by a preponderance of the
evidence that the facts entitle the applicant to relief. Ex parte Richardson, 70
S.W.3d 865, 870 (Tex. Crim. App. 2002); Ex parte Reed, 402 S.W.3d at 41.

In reviewing the trial court’s ruling on an application for habeas relief, we

4
examine the evidence in the habeas record 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 Allen, 619 S.W.3d at 816. The trial court is the sole factfinder in a post-
conviction application for writ of habeas corpus filed under article 11.072. Ex
parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). We afford almost
complete deference to the habeas court’s determination of historical facts
supported by the record, especially when those factual findings rest upon an
evaluation of the witnesses’ credibility and demeanor. Ex parte Allen, 619 S.W.3d
at 816; Ex parte Reed, 402 S.W.3d at 42. Findings of historical fact made at the
trial level are still given deference on appeal even when the findings are based
solely on affidavits. Ex parte Sanchez, 625 S.W.3d 139, 144 (Tex. Crim. App.
2021).

We apply the same deference to review the habeas court’s application of law
to fact questions if resolving those determinations rests upon an evaluation of
credibility and demeanor. Ex parte Allen, 619 S.W.3d at 816; Ex parte Reed, 402
S.W.3d at 42. However, if the outcome of those ultimate questions turns upon an
application of legal standards, we review the habeas court’s determination de novo.
Ex parte Allen, 619 S.W.3d at 816; Ex parte Reed, 402 S.W.3d at 42. We will
uphold the trial court’s ruling as long as it is correct on any theory of law
applicable to the case. Ex parte Allen, 619 S.W.3d at 816; Ex parte Onyeahialam,
558 S.W.3d at 743.

II. No Evidence of Charged Offense

For a court to reach the merits of an applicant’s claim on habeas corpus, the
applicant’s claim must be cognizable on habeas corpus. Ex parte Reed, 402
S.W.3d at 42; see Ex parte Perales, 215 S.W.3d 418, 419-20 (Tex. Crim. App.
2007). A writ of habeas corpus ordinarily may not be used to relitigate matters that

5
already were raised and rejected on direct appeal. Ex parte Brown, 205 S.W.3d
538, 546 (Tex. Crim. App. 2006); Ex parte Reed, 402 S.W.3d at 42. Additionally,
it is well settled that a challenge to the sufficiency of the evidence is not cognizable
on an application for a post-conviction writ of habeas corpus. Ex parte Perales,
215 S.W.3d at 419; Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App.
2004). “However, a claim of no evidence is cognizable because ‘[w]here there has
been no evidence upon which to base a conviction, a violation of due process has
occurred and the conviction may be attacked collaterally in a habeas corpus
proceeding.’” Ex parte Perales, 215 S.W.3d at 420 (quoting Ex parte Coleman,
599 S.W.2d 305, 307 (Tex. Crim. App. 1978)). “If the record is devoid of
evidentiary support for a conviction, an evidentiary challenge is cognizable on a
writ of habeas corpus.” Ex parte Perales, 215 S.W.3d at 420.

In his first issue, Appellant contends: “There is no evidence that Appellant
was the maker of the affidavit in question. Appellant is legally innocent of the
charged offense. The ‘maker’ provision of Tex. Penal Code § 37.09(a)(2) does not
apply to an affidavit to [sic] which the accused does not sign. Appellant was
convicted under a legally inadequate theory.” Appellant argues he cannot be guilty
“as a matter of law” of the tampering with or fabricating physical evidence offense
as charged. He quotes the jury charge’s application paragraph4 and contends that
to “make” an affidavit means to be its signer because “affidavit” is defined in
section 312.011(1) of the Texas Government Code as “a statement in writing of a
fact or facts signed by the party making it, sworn to before an officer authorized to

4
The application paragraph states: “Now, if you find . . . [Appellant] did then and there,
knowing that an investigation was in progress, namely furnishing alcohol to a minor,
intentionally or knowingly make and/or present a document, namely the affidavit of [Sandy/Jill],
with knowledge of its falsity and with intent to affect the course or outcome of the furnishing
alcohol to minor investigation, then you will find [Appellant] guilty of Tampering with Physical
Evidence as charged in the Indictment.”

6
administer oaths, and officially certified to by the officer under his seal of office.”5
Appellant claims the hypothetically correct jury charge would have “contained the
definition of ‘affidavit’ within” section 312.011(1). According to Appellant, it “is
uncontroverted that Appellant was not the signer of the affidavits. Therefore,
under Texas Government Code §312.011(1), he was not the ‘maker’ of the
affidavits and his conviction upon this theory was void as a matter of law” and “no
rational jury could find each essential element of the charged offense beyond a
reasonable doubt.”

The State responds that the sufficiency of the evidence is measured by the
elements of the offense as defined by the hypothetically correct jury charge for the
case, and a hypothetically correct jury charge in this case would not “include the
Government Code’s definition of the word ‘affidavit’ and/or Appellant’s proposed
definition of the word ‘make’” because the word “affidavit” does not appear in
section 37.09 and “Appellant’s definition of ‘make,’ which would permit a
conviction only where the defendant actually signed the affidavit, is unduly
narrow” and “inconsistent with the expansive terminology of this penal statute.”

The sufficiency of the evidence should be measured by the elements of the
offense as defined by the hypothetically correct jury charge for the case, which
would be a charge that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.” See Malik v. State, 953
S.W.2d 234, 236 (Tex. Crim. App. 1997) (en banc). A hypothetically correct jury
charge is not required to “track exactly all of the allegations in the indictment” and
“may disregard certain unnecessarily pled indictment allegations.” Gollihar v.

5
Tex. Gov’t Code Ann. § 312.011(1).

7
State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001) “If a jury instruction includes
the elements of the charged crime but incorrectly adds an extra, made-up element,
a sufficiency challenge is still assessed against the elements of the charged crime,
regardless of the source of the extra element.” Ramjattansingh v. State, 548
S.W.3d 540, 552 (Tex. Crim. App. 2018).

As applicable in his case, a person commits the third-degree felony offense
of tampering with or fabricating physical evidence if, (1) knowing that an
investigation is in progress; (2) he makes, presents, or uses a document or thing
with knowledge of its falsity; and (3) acts with the intent to affect the course or
outcome of the investigation. Lavalle, 2021 WL 3924002, at *6; see Tex. Penal
Code Ann. § 37.09(a)(2); Wilson v. State, 311 S.W.3d 452, 464 (Tex. Crim. App.
2010).

Neither in the trial court nor on appeal did Appellant cite authority
supporting his contention that because he was not the signer and, thus, not the
maker of the affidavits as defined in section 312.011(1), he cannot be a person who
made the documents as provided in section 37.09(a)(2).6 Additionally, Appellant
does not explain why under section 37.09(a)(2) Appellant had to have signed the
affidavits in order to have made the documents and, correspondingly, why the
Government Code definition of “affidavit” is an essential element of the charged
offense that would be contained in a hypothetically correct jury charge and the
State would be required to prove. He contends that if a word or term is defined in
a statute, that statutory definition must be submitted to the jury so that the
Government Code definition of “affidavit” — being a statutory definition — would
be included in a hypothetically correct jury charge. But Appellant cites no
6
Although Appellant states that eight courts of appeals “applied the Texas Government
Code §312.011(1) definition of ‘affidavit’ to criminal cases,” the cited cases did not mention or
apply the definition in the context of section 37.09.

8
authority, and we have found none, to support his blanket assertion that every
statutory definition of a word or term defined in any Texas code must be included
in a criminal jury charge.7

Further, contrary to Appellant’s assertion, not all definitions constitute
elements of an offense. See Haagensen v. State, 346 S.W.3d 758, 762 (Tex.
App.—Texarkana 2011, no pet.). For example, the Texas Court of Criminal
Appeals held in Gray v. State that the definition of intoxicant is not an element of
the offense of driving while intoxicated, explaining that “[t]he intoxicant is not the
forbidden conduct, the required culpability, any required result, or the negation of
any exception to the offense. The mere fact that the DWI statute separately defines
intoxication does not automatically elevate the intoxicant to the status of an
element of the offense.” 152 S.W.3d 125, 132 (Tex. Crim. App. 2004).

Section 1.07(a)(22) provides that forbidden conduct, the required culpability,

7
Appellant cites Lindsay v. State, 102 S.W.3d 223 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d), Hunter v. State, 92 S.W.3d 596 (Tex. App.—Waco 2002, pet. ref’d), abrogated
by Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. 2006), and Roise v. State, 7 S.W.3d 225
(Tex. App.—Austin 1999, pet. ref’d). However, none of these cases support Appellant’s
contention. See Lindsay, 102 S.W.3d at 230 (finding the trial court erred in not including in the
jury charge the statutory definition for “criminal responsibility” in Texas Penal Code section
7.02(a); the court made no statement that if a word or term is defined in a statute, that statutory
definition must be submitted to the jury); Hunter, 92 S.W.3d at 601-02 (“rely[ing] on
Government Code’s definition of [affidavit] for guidance” in finding that “the term ‘sworn
affidavit’ used in article 18.01(b) of the Code of Criminal Procedure requires a writing signed by
the affiant, sworn to before an officer authorized to administer oaths, and officially certified to
by the officer under his seal of office”; the Hunter court did not address who is a maker of an
affidavit nor is there a statement that if a word or term is defined in a statute, that statutory
definition must be submitted to the jury; moreover, the Court of Criminal Appeals in Smith, 207
S.W.3d at 791-92, disagreed with the Hunter court’s finding and held “that that the failure to
sign the warrant affidavit does not invalidate the warrant if other evidence proves that the affiant
personally swore to the truth of the facts in the affidavit before the issuing magistrate”); Roise, 7
S.W.3d at 242 (finding that the phrase “lewd exhibition of genitals” has not been statutorily
defined and the trial court was not required to define the phrase for the jury; there is no statement
that if a word or term is defined in a statute, that statutory definition must be submitted to the
jury).

9
any required result, and the negation of an exception form elements of an offense.
Tex. Pen. Code Ann. § 1.07(a)(22) (stating “‘Elements of offense’ means (A) the
forbidden conduct; (B) the required culpability; (C) any required result; and (D)
the negation of any exception to the offense”). Here, the definition of “affidavit”
does not describe the forbidden conduct, the required culpability, any required
result, or the negation of an exception to the offense of tampering with or
fabricating physical evidence. The Government Code definition of “affidavit” is
not an essential element of the offense and a hypothetically correct jury charge
would not have included the definition.

We reject Appellant’s attempt to significantly narrow the meaning of
“make” in section 37.09(a)(2) by importing the Government Code definition of
“affidavit” when such a narrowing is contrary to the goal and purpose of section
37.09. The purpose of section 37.09 “is to maintain the honesty, integrity, and
reliability of the justice system” and to prohibit anyone from “creating, destroying,
forging, altering or otherwise tampering with evidence that may be used in an
official investigation or judicial proceeding.” Wilson, 311 S.W.3d at 458 (citations
omitted). Because the Government Code definition of “affidavit” would not be
included in a hypothetically correct jury charge, the State was not required to prove
that Appellant signed the affidavits in order to have made the documents with
knowledge of their falsity under section 37.09(a)(2).

Appellant’s contention that “[t]he ‘maker’ provision of Tex. Penal Code §
37.09(a)(2) does not apply to an affidavit to [sic] which the accused does not sign”
and that he “was convicted under a legally inadequate theory” is without merit. 8
Also, we already determined on direct appeal that the evidence is legally sufficient

8
In light of our disposition, we need not address Appellant’s remaining arguments in his
first issue.

10
to support Appellant’s conviction.

We overrule Appellant’s first issue.

III. Erroneous and Unsupported Findings of Fact and Conclusions of Law

In his second issue, Appellant states the trial court’s findings of fact and
conclusions of law were clearly erroneous and unsupported by the record. He
challenges findings 15 to 18, 21, 22, 26, and 27, which we will address below.

1. Findings of Fact 15, 16, and 17

15. The Government Code definition of “affidavit” applies only for
the purpose of construing civil statutes. See id., § 312.001 (“This
subchapter applies to the construction of all civil statutes.”). That
definition does not apply when construing the provisions of the Texas
Penal Code, which does not contain any comparable definition.
16. The Government Code definition of “affidavit” cannot play any
legitimate role in the construction of Penal Code section 37.09, a
criminal statute that does not even contain the word “affidavit.”
17. Section 37.09 does utilize the word “make[],” but that term—as
used in that statute—is not defined in the Penal Code or in any other
statute. To apply the narrow definition suggested by Applicant would
be inconsistent with the expansive terminology of section 37.09.
Appellant argues that “[f]indings 15, 16, and 17 are clearly erroneous” because the
“Government Code definition of ‘affidavit’ applies for purposes of construing both
civil and criminal statutes.” However, assuming without deciding that the findings
are erroneous, they are irrelevant in light of our discussion and disposition of
Appellant’s first issue. See Ex parte Reed, 271 S.W.3d 698, 728 (Tex. Crim. App.
2008) (“[W]hen we determine that the trial judge’s findings and conclusions that
are supported by the record require clarification or supplementation, we may
exercise our judgment and make findings and conclusions that the record supports
and that are necessary to our independent review and ultimate disposition.
However, where a given finding or conclusion is immaterial to the issue or is
11
irrelevant to our disposition, we may decline to enter an alternative or contrary
finding or conclusion.”); Ex parte Yusafi, No. 09-08-00301-CR, 2008 WL
6740798, at *1 (Tex. App.—Beaumont Aug. 26, 2009, pet. ref’d) (mem. op., not
designated for publication) (“Should a given finding or conclusion be immaterial to
the issue or irrelevant to our disposition, we may decline to consider said finding or
conclusion.”).

2. Finding of Fact 18

18. The indictment does refer to affidavits. However, Applicant has
cited no authority holding that the Government Code definition of
“affidavit” can properly be used, in a criminal case, to assess whether
there was “no evidence” (Appl. at 15) that an applicant did “make”
affidavits.
Appellant contends that finding 18 is clearly erroneous because “Appellant cited
five appellate cases to the trial court in his response to the State’s answer to his
writs of habeas corpus.” Although Appellant cited five courts of appeals cases in
his reply, none of these cases support his contention that a hypothetically correct
jury charge would include the Government Code’s definition of “affidavit” or that
the definition should be used to define the meaning of “make” in section
37.09(a)(2).

The sole case cited by Appellant involving a provision in the Penal Code is
Martin v. State, 896 S.W.2d 336 (Tex. App.—Amarillo 1995, no pet.). There, the
court paraphrased the Government Code definition of “affidavit” in a footnote in
the context of its discussion that, when the legislature enacted the perjury statute in
section 37.02 of the Penal Code, the legislature combined the previously distinct
crimes of perjury and false swearing. Id. at 338. Before the enactment of section
37.02, the two crimes were almost identical but for the motivation for the oath; if
the oath taken was mandated by law, the falsehood constituted perjury, if not, it

12
was false swearing. Id. The court stated that by enacting section 37.02, “the
legislature sought to vitiate the difference inherent in the old law and criminalize as
perjury ‘all [false] statements authorized to be made under oath whether or not an
oath is required by law.’” Id. (quoting Tex. Penal Code Ann. § 37.04, Prac.
Comment.). The court emphasized:

More importantly, gone was the expressed reference to the word
“affidavit.” Under article 310 of the old code, the false statement
prohibited by the legislature consisted of a “declaration or affidavit.”
Now, “any representation of fact” constitutes a statement. In adopting
that definition, the legislature liberated the term from the restrictive
formalities accompanying an “affidavit” and expanded the category of
utterances potentially criminal.
Id. at 338-39. Only after stating that the legislature liberated the term from the
formalities accompanying an “affidavit” did the court mention the Government
Code definition. The definition was inconsequential to the court’s decision.

The other four cases Appellant cited do not involve statutory interpretation
of a Penal Code section. In Venable v. State, the court of appeals addressed
whether a supposed business records affidavit containing neither a statement of
personal knowledge nor a proper notarial seal could for purposes of Texas Rule of
Evidence 803(6) be an affidavit that complies with Texas Rule of Evidence
902(10). 113 S.W.3d 797, 800 (Tex. App.—Beaumont 2003, pet. ref’d). The
court held that by “failing to state that it is made on the personal knowledge of the
witness, and by failing to be properly notarized, [the purported business records
affidavit] complies with neither the plain language nor the obvious purpose of the
cited rules, to wit, assuring the trustworthiness of the information offered into
evidence, without the necessity of calling of a live witness for authentication.” Id.

In Hunter v. State, the court of appeals relied on the Government Code
definition of “affidavit” for guidance in finding that “the term ‘sworn affidavit’

13
used in article 18.01(b) of the Code of Criminal Procedure requires a writing
signed by the affiant, sworn to before an officer authorized to administer oaths, and
officially certified to by the officer under his seal of office.” 92 S.W.3d 596, 601-
02 (Tex. App.—Waco 2002, pet. ref’d), abrogated by Smith v. State, 207 S.W.3d
787 (Tex. Crim. App. 2006). Moreover, the Court of Criminal Appeals in Smith
disagreed with the Hunter court’s finding and held “that that the failure to sign the
warrant affidavit does not invalidate the warrant if other evidence proves that the
affiant personally swore to the truth of the facts in the affidavit before the issuing
magistrate.” 207 S.W.3d at 791-92.

In Scott v. State, the court of appeals considered whether an Appellant’s
unsworn indigence motion to obtain a free appellate record constituted an affidavit
under Texas Rule of Appellate Procedure 20.2. 80 S.W.3d 184, 190 (Tex. App.—
Waco 2002, pet. ref’d). Citing the Government Code definition of “affidavit”, the
court found the defendant’s “motion arguably does not satisfy Rule 20.2 because
he did not verify it ‘before an officer authorized to administer oaths.’” Id. at 194.
However, the court recognized that a notary public or other officer authorized to
administer oaths would probably not affix his seal to certify that the defendant had
made the “affidavit” in issue given his refusal to “swear” or “affirm” on religious
grounds. Id. at 194-95. To give effect to the defendant’s appeal, the court excused
the defendant from “strict adherence to the requirement that his motion be ‘sworn
to before an officer authorized to administer oaths.’” Id. at 195.

Finally, in Arochi v. State, the court of appeals addressed the defendant’s
complaint that the State’s affidavits controverting his affidavit in support of his
change of venue motion “were deficient in form because the notary improperly
filled out” the State’s affidavits. No. 05-16-01208-CR, 2018 WL 3372919, at *18
(Tex. App.—Dallas July 11, 2018, pet. ref’d) (mem. op., not designated for

14
publication). Relying on the Government Code definition of “affidavit,” the court
determined “that this did not affect the validity of the affidavits” when each
affidavit “contains the signature of the affiant, states it was ‘sworn to and
subscribed before’ the notary, and was officially certified to by the notary with her
seal of office.” Id.

Accordingly, the trial court’s finding 18 is not clearly erroneous.

3. Findings of Fact 21, 22, 26, and 27

21. This Court would have erred if it had included the Government
Code definition of “affidavit,” and/or Applicant’s definition of
“make,” in the charges. Such definitions, which do not appear in the
Penal Code or in the Code of Criminal Procedure, would have
amounted to an improper comment on the weight of the evidence. See
TEX. CODE CRIM. PROC. art. 36.14.
22. Because the jury charges did not define the term “affidavit” or the
term “make,” the jurors could properly have construed those terms to
have any meaning that is acceptable in common parlance. See
Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000).
* * *
26. That argument lacks merit because the Government Code
definition of “affidavit” does not apply in this criminal case and
because that definition, if it did apply here, would not render the
State’s “make[]” theory “legally inadequate.” If that definition did
apply here, the “make[]” theory would, at worst, merely be “factually
inadequate.” Griffin v. United States, 502 U.S. 46, 59 (1991). A
claim of “factual inadequacy” or legal insufficiency would not be
cognizable in this habeas proceeding. See Ex parte Perales, 215
S.W.3d 418, 419 (Tex. Crim. App. 2007).
27. Even if there was no evidence supporting the State's “make[]”
theory, Applicant has not argued or established that there was no
evidence supporting the State’s alternative theory, i.e., that Applicant
“did then and there . . . intentionally or knowingly . . . present” each
of the affidavits. CR 235, 241. In other words, Applicant’s no-
evidence claim does not invalidate the State’s other theory of guilt.

15
Appellant asserts that findings 21 and 22 are clearly erroneous because the trial
court was required to include the Government Code definition of “affidavit” in the
jury charge. He also asserts that finding 26 is clearly erroneous because the
definition of “affidavit” in Government Code section 312.011 “renders Appellant’s
charges ‘legally inadequate’ as opposed to ‘factually inadequate.’” Finally,
Appellant contends that finding 27 is clearly erroneous because “this Court is not
in a position to decide which of the two theories the jurists [sic] convicted him on,
Appellant need only show that one of those theories was legally inadequate.”

However, assuming without deciding that the findings are erroneous, they
are irrelevant in light of our discussion and disposition of Appellant’s first issue.
See Ex parte Reed, 271 S.W.3d at 728 (“[W]hen we determine that the trial judge’s
findings and conclusions that are supported by the record require clarification or
supplementation, we may exercise our judgment and make findings and
conclusions that the record supports and that are necessary to our independent
review and ultimate disposition. However, where a given finding or conclusion is
immaterial to the issue or is irrelevant to our disposition, we may decline to enter
an alternative or contrary finding or conclusion.”); Ex parte Yusafi, 2008 WL
6740798, at *1 (“Should a given finding or conclusion be immaterial to the issue or
irrelevant to our disposition, we may decline to consider said finding or
conclusion.”).

We overrule Appellant’s second issue.

IV. Ineffective Assistance of Counsel

In his third and fourth issues, Appellant complains that he was denied
effective assistance of counsel at trial and on appeal in violation of the Sixth
Amendment to the United States Constitution.

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1. Applicable Law

Claims about ineffective assistance of counsel are cognizable on habeas
corpus. Ex parte McCullough, 966 S.W.2d 529, 532 n.1 (Tex. Crim. App. 1998)
(en banc) (citing Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) (en
banc) and Ex parte Wilson, 716 S.W.2d 953 (Tex. Crim. App. 1986) (en banc)).

Criminal defendants have a constitutional right to assistance of counsel. See
U.S. Const. amend. VI; Villarreal v. State, No. PD-0048-20, 2024 WL 4446740, at
*4 (Tex. Crim. App. Oct. 9, 2024); Pelcastre v. State, 654 S.W.3d 579, 590 (Tex.
App.—Houston [14th Dist.] 2022, pet. ref’d). This right necessarily includes the
right to reasonably effective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim.
App. 1986) (en banc). “‘Designed to remedy any imbalance in our adversary
system, the Sixth Amendment promises that an accused is entitled to defense
counsel in all criminal prosecutions.’” Villarreal, 2024 WL 4446740, at *4
(quoting Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999)). This
right to effective assistance extends to the first direct appeal. Evitts v. Lucey, 469
U.S. 387, 395-96 (1985); Ward v. State, 740 S.W.2d 794 (Tex. Crim. App. 1987)
(en banc).

To establish that counsel rendered ineffective assistance, a habeas applicant
must demonstrate, by a preponderance of the evidence, that (1) his counsel’s
performance was deficient, in that it fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that the result of the
proceeding would have been different but for counsel’s deficient performance. See
Strickland, 466 U.S. at 687-88; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim.
App. 2004). Failure to satisfy either prong of the Strickland test defeats an
ineffective assistance claim. Strickland, 466 U.S. at 697; Fernandez v. State, 580

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S.W.3d 470, 472 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

To satisfy the first prong, an appellant must prove by a preponderance of the
evidence that his counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms. Strickland, 466 U.S. at
688; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To determine
whether the defendant has established this, we must examine the totality of
counsel’s conduct at the time of the representation, and we must evaluate the
reasonableness of counsel’s actions from counsel’s perspective at the time of that
representation, without focusing on isolated acts or omissions. See Strickland, 466
U.S. at 689; Robertson v. State, 187 S.W.3d 475, 482 (Tex. Crim. App. 2006);
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

A trial counsel’s performance is subject to a “highly deferential” review and
there “is a strong presumption that counsel’s conduct falls within a wide range of
reasonable professional assistance.” Andrews v. State, 159 S.W.3d 98, 101 (Tex.
Crim. App. 2005). Therefore, any allegation of ineffective assistance must be
firmly founded in the record. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim.
App. 2012).

To satisfy the second Strickland prong, an appellant must show a reasonable
probability that, but for his counsel’s deficient actions, the result of the proceeding
would have been different. See Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim.
App. 2013); Lopez, 343 S.W.3d at 142. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Nava, 415 S.W.3d at 308;
Lopez, 343 S.W.3d at 142.

2. Trial Counsel

Appellant argues in his third issue that he was denied effective assistance of

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trial counsel because his trial counsel failed to (1) “move for a continuance when
the State arraigned the Appellant upon an indictment that had been superseded”;
(2) “educate himself to [sic] the law of affidavits and fail[ed] to assert the defense
set out in Texas Government Code § 312.011(1)”; (3) request a jury instruction on
the definition of “maker” of an affidavit; and (4) “argue to the jury that Appellant
was not and could not be the maker of the affidavits in question.”

a. Continuance

Appellant first claims that his trial counsel’s performance was deficient
because trial counsel failed to move for a continuance upon the State reading and
arraigning Appellant on a superseded indictment. Appellant claims his trial
counsel “should have expressed his surprise at the State having abandoned the
superseding indictment,” and “failure to file a motion for continuance resulted in
Appellant being blindsided by the State’s evidence and prevented him from
asserting an adequate defense to the charges.”

Article 29.13 of the Texas Code of Criminal Procedure provides that the trial
court may grant a continuance after trial has begun “when it is made to appear to
the satisfaction of the court that by some unexpected occurrence since the trial
began, which no reasonable diligence could have anticipated, the applicant is so
taken by surprise that a fair trial cannot be had.” Tex. Code Crim. Proc. Ann. art.
29.13; Guerrero v. State, 528 S.W.3d 796, 799 (Tex. App.—Houston [14th Dist.]
2017, pet. ref’d).

In his affidavit, trial counsel stated as follows:

The reason that Affiant failed to move for a continuance when the
State arraigned the Applicant upon an indictment that had been
superseded was that those were the direct instructions of the Applicant
to Affiant, as his counsel. Shortly after the arraignment, when both
Applicant and Affiant realized that the State had arraigned Applicant

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on the superseded indictment, Affiant presented several potential
options to the Applicant. A motion for continuance was among the
options presented, as was Applicant’s statutory entitlement to 10 (ten)
days’ notice. Applicant was very clear in expressing that he did not
want a continuance and wanted to proceed with trial on the date
already scheduled, due to the impact of the pendency of the cases on
his life and practice. I advised Applicant that by failing to ask for a
continuance, he would most likely be waiving that as a possible
appellate issue. Applicant stated that he understood, and was willing
to take that risk. Because Applicant was himself an experienced
criminal defense trial lawyer, I assessed that his decision was
knowing, voluntary, and strategic. Further, Applicant chose from
among other presented options and directed Affiant to instead file
Motions to Quash and for a Directed Verdict of Acquittal. Applicant
made similar decisions throughout the trial, including directing
Affiant not to make a Motion for Mistrial in conjunction with the
Motion to Quash and Motion for Directed Verdict, despite Affiant’s
counsel that, again, failing to do so may constitute a waiver of those
issues for appellate purposes.
The trial court found, among other things, that (1) trial counsel “provides a credible
explanation reflecting that this aspect of counsel’s conduct resulted from a
reasonable trial strategy”; (2) Appellant “has not rebutted the ‘strong presumption’
that this aspect of counsel’s conduct fell within the wide range of reasonable,
professional assistance”; and (3) the court “could properly have denied any such
motion for continuance because Applicant was not ‘so taken by surprise that a fair
trial cannot be had.’”

The original indictment and the re-indictment contain the same allegations in
both counts; the difference between the two indictments is that the re-indictment
lists the false statements contained in the two affidavits. However, there is nothing
in the record that could support a contention that Appellant was surprised; there is
no support in the record that a motion for continuance was meritorious, which is
what Appellant was required to show in order to establish that his trial counsel
rendered ineffective assistance. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.
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Crim. App. 1998) (en banc); Straight v. State, 515 S.W.3d 553, 565 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d).

Additionally, the trial court found that Appellant is estopped by the doctrine
of invited error from asserting an ineffective assistance claim based on his trial
counsel’s failure to move for a continuance because “the allegedly deficient
aspects of [trial counsel]’s representation resulted from the direct instructions of
the Applicant to [trial counsel], was made with Applicant’s full blessing and
endorsement, and/or resulted from a joint decision made by Applicant and [trial
counsel].”

The trial court’s finding is supported by trial counsel’s affidavit, in which he
stated that Appellant “was very clear in expressing that he did not want a
continuance and wanted to proceed with trial on the date already scheduled, due to
the impact of the pendency of the cases on his life and practice. I advised
Applicant that by failing to ask for a continuance, he would most likely be waiving
that as a possible appellate issue. Applicant stated that he understood, and was
willing to take that risk.” See Ex parte Sanchez, 625 S.W.3d at 144 (findings of
historical fact made at the trial level are still given deference on appeal even when
the findings are based solely on affidavits). Further, trial counsel averred that he
concluded Appellant’s decision to not move for a continuance “was knowing,
voluntary, and strategic” because Appellant “was himself an experienced criminal
defense trial lawyer.”

After telling his trial counsel that he did not want a continuance and wanted
to proceed with trial, Appellant (a criminal defense attorney) cannot claim
ineffective assistance based on his trial counsel’s failure to move for a continuance.
See Aguirre v. State, No. 11-11-00313-CR, 2013 WL 5776948, at *1 (Tex. App.—
Eastland Oct. 24, 2013, no pet.) (mem. op., not designated for publication) (under

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the doctrine of invited error, Appellant was estopped from complaining that her
counsel rendered ineffective assistance of counsel due to a purported conflict of
interest because she expressly waived the claimed conflict in a hearing before
trial); In re R.S., No. 14-08-01013-CV, 2009 WL 3191515, at *5 (Tex. App.—
Houston [14th Dist.] Oct. 1, 2009, pet. denied) (mem. op.) (“Appellant’s actions
thwarted her counsel’s efforts at trial. Appellant also could be said to have invited
any error by her counsel. The invited error doctrine applies to situations where a
party requests a specific ruling or action, then complains of that action on appeal.
The intentional withholding of information by a client cannot result in an
ineffective assistance of counsel claim.”).

b. Government Code Definition of Affidavit

Appellant also contends that he was denied effective assistance of counsel
because his trial counsel failed to (1) educate himself on the law of affidavits and
failed to assert the defense that Appellant was legally innocent of the charge
against him because “Appellant could not legally be the ‘maker’ of an affidavit that
he did not himself sign” as required by the definition of “affidavit” in section
312.011(1) of the Government Code; (2) request a jury instruction on the definition
of “maker” of an affidavit; and (3) “argue to the jury that Appellant was not and
could not be the maker of the affidavits in question.”

However, as we already explained, because the Government Code definition
of “affidavit” would not be included in a hypothetically correct jury charge, the
State was not required to prove that Appellant signed the affidavits in order to have
made the documents with knowledge of their falsity under section 37.09(a)(2).
Therefore, Appellant could not have been denied effective assistance of counsel for
failing to request a jury instruction or make an argument based on section
312.011(11)’s definition of “affidavit.” Under the applicable standard of review,

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we conclude the trial court acted within its discretion in determining that Appellant
did not prove by a preponderance of evidence the test for ineffective assistance of
counsel.

We overrule Appellant’s third issue.

3. Appellate Counsel

In his fourth issue, Appellant asserts his appellate counsel’s performance
was deficient for failing to argue on appeal that under section 312.011(1)
“Appellant could not legally be the ‘maker’ of an affidavit that he did not sign
himself.” Appellant asserts that “[b]ecause Texas Government Code Section
312.011 provides that the ‘maker’ of an affidavit is the person signing it, and
everyone agrees that Appellant was not the signor of the affidavits, Appellant
could not possibly be guilty of the making charge and his conviction under this
theory was illegal. Had [appellate counsel] presented this argument on appeal, it
would have had indisputable merit under well settled law and would have
necessarily resulted in reversible error.”

As we stated above, the definition of “affidavit” in section 312.011(1) would
not be included in a hypothetically correct jury charge, and the State was not
required to prove that Appellant signed the affidavits in order to have made the
documents with knowledge of their falsity under section 37.09(a)(2). Accordingly,
Appellant could not have been denied effective assistance of counsel based on his
appellate counsel’s failure to argue on appeal that under section 312.011(1)
“Appellant could not legally be the ‘maker’ of an affidavit that he did not sign
himself.” Thus, we conclude the trial court acted within its discretion when it
determined Appellant did not prove by a preponderance of evidence he received
ineffective assistance of counsel on appeal.

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We overrule Appellant’s fourth issue.

CONCLUSION

We affirm the trial court’s orders denying Appellant’s applications for writ
of habeas corpus.

/s/ Meagan Hassan
Justice

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.

Do Not Publish — Tex. R. App. P. 47.2(b).

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