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Ex parte Nelson

Court of Appeals of Texas, First District

February 15, 2018

EX PARTE NII-OTABIL NELSON

         On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 1372073-C

          Panel consists of Justices Jennings, Keyes, and Higley.

          OPINION

          Laura Carter Higley, Justice

         Appellant, Nii-Otabil Nelson, appeals from the trial court's order, signed on August 11, 2017, denying his third application for a writ of habeas corpus, filed under article 11.072 of the Texas Code of Criminal Procedure. We affirm.

         Background

         On April 15, 2014, after being charged with injury to a child, a third-degree felony, Nelson, with counsel, pleaded nolo contendere or no contest to the reduced charge of assault-bodily injury, a class A misdemeanor. See Tex. Penal Code Ann. §§ 22.04(a)(3), (f), 22.01(a)(1), (b) (West 2017); see also Ex parte Nii-Otabil Nelson, No. 01-14-00924-CR, 2015 WL 3981577, at *1-2 (Tex. App.-Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication). On the same day, the trial court signed an order of deferred adjudication of Nelson's guilt and placed him on community supervision for 18 months. See Ex parte Nelson, 2015 WL 3981577, at *1.

         On April 28, 2015, the trial court signed an order unsatisfactorily terminating Nelson from his community supervision. Nelson attempted to appeal from an earlier order modifying the terms of his community supervision, but this Court dismissed that appeal for want of jurisdiction in 2015. See Nelson v. State, No. 01-15-00248-CR, 2015 WL 3981572, at *4 (Tex. App.-Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication).

         A. Nelson's First Habeas Corpus Application

         On May 30, 2014, through habeas counsel, Nelson had filed his first article 11.072 habeas corpus application, challenging the legal validity of the April 15, 2014 order of deferred adjudication in which community supervision was imposed, and this application was assigned to trial court cause number 1372073-A. See Tex. Code Crim. Proc. Ann. art. 11.072, §§ 1, 2(b)(1) (West 2017); see also Ex parte Nelson, 2015 WL 3981577, at *1. Nelson alleged that his no-contest plea was involuntary because his trial counsel had provided him ineffective assistance for not explaining the ramifications of his plea on his future as a medical professional. See Ex parte Nelson, 2015 WL 3981577, at *1-2.

         On September 22, 2014, the habeas court denied Nelson's first habeas application. See Ex parte Nelson, 2015 WL 3981577, at *1. In 2015, this Court affirmed the denial of Nelson's first habeas application, which alleged ineffectiveness of trial counsel. See id. at *6.

         B. Nelson's Second Habeas Corpus Application

         On August 17, 2016, [1] Nelson, through new habeas counsel, served his second article 11.072 habeas corpus application in the trial court, entitled "Second Actual Innocence Application for Writ of Habeas Corpus, " which was assigned to trial court cause number 1372073-B. See Ex parte Nii-Otabil Nelson, No. 01-17-00152-CR, 2017 WL 1149214, at *1 (Tex. App.-Houston [1st Dist.] Mar. 28, 2017, no pet.) (mem. op., not designated for publication) (hereinafter, "Ex parte Nelson II"). Nelson alleged in his second habeas application that he was actually innocent of the reduced class A misdemeanor charge of assault-bodily injury involving his son, A.T.N, to which he had pleaded no-contest and had been placed on 18-months community supervision in 2014. See Ex parte Nelson II, 2017 WL 1149214, at *1. Nelson did not claim to be currently confined as a result of his no-contest plea, but he asserted that he was suffering the collateral consequences of being unemployed. In addition to his own affidavit, Nelson supported his second habeas corpus application by attaching the police report and two affidavits from his other son, O.A.N., a typewritten one signed on May 13, 2016, and a handwritten one signed on August 10, 2016. Nelson claimed that these two affidavits constituted newly discovered evidence proving his actual innocence. In his affidavit, O.A.N. clarified that he had only heard what he thought was Nelson's assault on A.T.N., but he did not see it in person, and that he had previously exaggerated his story.

         On August 10, 2016, the habeas court signed findings of fact, conclusions of law, and an order denying Nelson's second habeas application. See Ex parte Nelson II, 2017 WL 1149214, at *1. The court's order concluded, among other things, that Nelson had failed to allege sufficient facts establishing that his claims could not have been presented previously in his first habeas application, as required by article 11.072, section 9. See id. In 2017, this Court dismissed for want of jurisdiction as untimely Nelson's appeal from his second habeas application. See id. at *2.

         C. Nelson's Third Habeas Corpus Application

         On July 14, 2017, Nelson, through current habeas counsel, served this third article 11.072 habeas application in the trial court, which was assigned to the underlying trial court cause number 1372073-C. Nelson again alleges in this third habeas application, entitled "Third Actual Innocence Application for Writ of Habeas Corpus, " that he is actually innocent of the class A misdemeanor charge of assault- bodily injury, involving his son, A.T.N., to which he had pleaded no contest and had been later placed on community supervision in 2014. Nelson's third habeas application again attaches his affidavit, the police report and the same two affidavits from O.A.N., the typewritten one signed on May 13, 2016, and the handwritten one signed on August 10, 2016. The State filed an answer and proposed findings of fact and conclusions of law on August 11, 2017.

         The Habeas Court's Findings of Fact and Conclusions of Law

         Without a hearing, the habeas court adopted and signed the "State's Proposed Findings of Fact, Conclusions of Law, and Order" on August 11, 2017, denying Nelson's third habeas application, assigned to trial court cause number 1372073-C. The court entered the following findings and conclusions:

         FINDINGS ...


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