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Ex parte Donovan

Court of Criminal Appeals of Texas

November 22, 2017




          Alcala, J.

         I join this Court's decision in denying habeas relief to David M. Donovan, applicant. As the habeas court determined, applicant has failed to establish by a preponderance of the evidence that he would have gone to trial instead of resolving this case through a plea bargain had he been properly admonished about the sex-offender registration requirement. I write separately to address my reasons for participating in the instant decision rather than sua sponte recusing myself.

         I. Background

         In 1998, applicant pleaded no contest to aggravated sexual assault of a child in accordance with an agreed plea bargain with the State. Under the plea bargain's terms, applicant was placed on five years' deferred adjudication and ordered to pay a $300 fine. The documents filed in accordance with the plea agreement include one that is signed by applicant acknowledging that the State would recommend to the court that he register as a sex offender. The applicant, his attorney, and the State signed a document entitled, "Requested Conditions of Supervision, " that stated, "The parties named below hereby acknowledge that the State of Texas, by and through the undersigned Assistant District Attorney, will recommend the following terms and conditions of community supervision to the Court: . . . Sex Offender Registration[, ] Sex Offender Treatment/Counseling[, ] Any other conditions set by the Judge[, and] No contact with the complaining witness[.]"

         Two weeks later, applicant filed a motion for new trial on the basis that his plea was involuntary due to ineffective assistance of counsel. Applicant claimed that he did not know that the trial court would order several conditions of community supervision, such as registration as a sex offender, avoidance of children, attendance at sex offender counseling, and 300 hours of community service. The trial court refused to hold a hearing on that motion under the theory that it lacked authority to hear a motion for new trial in the absence of an adjudication. Applicant appealed the trial court's refusal to hear the motion for new trial, and the court of appeals affirmed the trial court's decision. See Donovan v. State, 17 S.W.3d 407, 408 (Tex. App.-Houston [1st Dist.] 2000). The court of appeals held that applicant had erred by requesting relief through a motion for new trial at that juncture because first, he should have requested to withdraw his plea of no contest to the offense, and if that was denied, then second, he should have moved the trial court to a final adjudication, after which he could require a hearing on his motion for new trial. Id. at 410. On discretionary review, this Court affirmed the court of appeals's judgment. See Donovan v. State, 68 S.W.3d 633, 638 (Tex. Crim. App. 2002).

         In 2005, applicant was adjudicated guilty and sentenced to forty-five years' imprisonment. Applicant appealed, and the court of appeals affirmed the trial court's judgment, as reformed to reflect the oral pronouncement of sentence. Donovan v. State, 232 S.W.3d 192, 193-94 (Tex. App.-Houston [1st Dist.] 2007). I was the author of that First Court opinion during the period of time when I was a justice there, and the decision was reached by the unanimous agreement of the panel of justices that also included Justices Taft and Jennings.

         In that case, the First Court held that it lacked jurisdiction to hear applicant's challenges under the circumstances in which he was attacking only the trial court's decision to place him on deferred adjudication and the trial court's rationale for revoking it. Id. at 194. The First Court opinion explained that it lacked jurisdiction to consider applicant's first two issues that asserted that he was not in Harris County at the time of the commission of the offense for which he had been placed on deferred adjudication. Id. at 196. The First Court opinion further determined that it lacked jurisdiction over applicant's remaining issues in which he complained that the trial judge should have been recused, that applicant was improperly required to admit his guilt as part of a community supervision program, that his community supervision terms were set by a probation officer and not the judge, and that the State had failed to prove that he did not pay the required fees. Id. The opinion noted that these issues related to the trial court's decision to adjudicate guilt, which was a matter that, at that time, could not be appealed under the then-applicable statutory provisions. Id.

         In his instant application for a post-conviction writ of habeas corpus, applicant contends that he received ineffective assistance of counsel at the time that the trial court placed him on deferred adjudication because he was unaware that he would be mandatorily required to register as a sex offender. Specifically, applicant alleges that counsel's failures to advise him of the consequences of his no contest plea rendered his plea involuntary under Hill v. Lockhart, 474 U.S. 52 (1985). This Court remanded applicant's case to the habeas court for additional factual development. See Ex parte Donovan, WR-75, 582-03, 2015 WL 6746502, *1 (Tex. Crim. App. Nov. 4, 2015) (per curiam) (Alcala, J., not participating). Without explanation, I did not participate in that remand order.

         In response to the inquiries within this Court's remand order, the habeas court has recommended that relief be denied. The habeas court determined that applicant cannot show that he was prejudiced by his trial counsel's failure to specifically advise him that sex offender registration was mandatory in his case. The habeas court explained that applicant signed a document acknowledging that the prosecutors would recommend that his community supervision include sex offender registration; that counsel informed applicant prior to the plea that if the State asked for sex offender registration, then the court would grant it, and applicant would have to register for life; and that at the time of his plea, applicant was aware that the trial court would require him to register as a sex offender for this offense.[1] The habeas court concluded that applicant was not prejudiced by the lack of specific notification that he would be mandated to register as a sex offender because he would have persisted in his plea of nolo contendere to the offense, even if he had been apprised of the mandatory sex-offender requirement.[2]

         Other than the instant habeas application, there are no other motions pending in this case that require a ruling from this Court. Specifically, neither applicant nor the State has filed a motion seeking my disqualification or recusal.[3] Given that my past participation in the direct appeal was publicly known due to the fact that the opinion was published, the parties to this litigation could have but did not file a motion challenging my participation in this case.

         II. Analysis of Sua Sponte Recusal Issue

         Because I had authored the First Court majority opinion affirming applicant's conviction for this offense when I was a justice there, I have considered whether I should sua sponte recuse myself from participating in the instant habeas application challenging that same conviction. As I explain more fully ...

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