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Ex parte Davidson

Court of Appeals of Texas, Fourteenth District

October 15, 2019

EX PARTE CRAIG DAVIDSON, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1015172A

          Panel consists of Justices Christopher, Hassan, and Poissant.

          MEMORANDUM OPINION

          Margaret "Meg" Poissant, Justice.

         Appellant Craig Davidson appeals the habeas court's order denying his post-conviction application for writ of habeas corpus on his conviction of aggregate theft with an amount in excess of $200, 000. Davidson seeks to vacate his plea (without an agreed recommendation on sentencing) and the trial court's order of ten years' deferred adjudication community supervision on the grounds that he is innocent of theft, as charged, and that he received ineffective assistance of counsel. We affirm.

         I. Background

         In or around 2002 through 2004, Davidson and co-defendant, Richard Nugent, began conducting various real estate transactions including "wrap around mortgages, foreclosure sales, short sales, and adverse possession." The adverse possession transactions were the basis for Davidson's indictment.

         Davidson maintains, under the adverse possession prong of the business, he would locate abandoned properties. Davidson asserts he would attempt to find the true owners to place a cash offer for the house "as is." If the owner could not be located, Davidson would start a claim for adverse possession by taking control of the property, filing a deed with the county, paying the back taxes, and making improvements. Davidson claims once the home was habitable, he would sell his interest in adverse possession to a grantee. According to Davidson, the deed clearly stated he was granting his interest in adverse possession. Davidson contends he consulted with attorney, Mitchell Gaspard, to "ensure the transactions were in full compliance with Texas adverse possession law."

         According to the State, Davidson and Nugent orchestrated a widespread real estate scheme. The State maintains that under the scheme, Davidson and Nugent located properties throughout the Houston area that they believed were abandoned, or which had heavy tax liens levied against them. Then, Davidson and Nugent used false, forged deeds, including a "special warranty deed in the amount of past due taxes" to "convey" these properties to themselves, either in their individual capacity or to unverifiable trusts for which they were trustees. The State asserts that Davidson and Nugent then quickly sold the properties to buyers using "special warranty deeds." The State maintains that these deeds lacked any explicit statement regarding the fact that Davidson and Nugent did not own the properties outright, but were conveying to the buyers only Davidson's and Nugent's adverse- possession interests to the properties; that the buyers would have to comply with the pertinent adverse-possession statute for the requisite timeframe before they could sue to quiet title and acquire true ownership; or that the rightful owners of the properties could sue to evict the buyers at any time prior to when the buyers' adverse-possession claims matured-at which point the buyers would lose the properties, as well as the money they paid to Davidson and Nugent to "buy" the premises. Davidson and Nugent did not orally advise the buyers that Davidson and Nugent did not actually own the properties, or that they were selling the buyers only their adverse-possession interests in the premises. Davidson admitted that he never mentioned anything about adverse possession to the buyers.

         The State's investigation included consultation with Patrick Mahoney, an attorney certified by the Texas Board of Legal Specialization in Residential and Commercial Real Estate. According to the State, Davidson and Nugent committed theft against the legitimate property owners-by using forged deeds to convey the owners' properties to themselves, and otherwise failing to comply with the tenets of the five-year adverse possession statute[1]-as well as against the people to whom Davidson and Nugent then sold the properties-by deceiving the purchasers into believing that they were buying full and true ownership of the premises, rather than merely Davidson's and Nugent's unperfected adverse-possession interests. The State charged Davidson with the first-degree felony offense of aggregate theft by deception, listing forty-seven separate victims in the indictment (twenty-four of the complaining witnesses were the rightful owners of the properties Davidson and Nugent adversely possessed and twenty-three complaining witnesses were purchasers of the adverse possession interest).

         On April 11, 2005, applicant pleaded guilty (without an agreed recommendation as to sentencing) to aggregate theft in an amount in excess of $200, 000, a first degree felony. A presentence investigation was completed. The trial court held a sentencing hearing on June 24, 2005. The trial court deferred a finding of guilt and placed Davidson on ten years' deferred adjudication with conditions, including a condition requiring payment of restitution to the complaining witnesses in the aggregate amount of $248, 621.00.

         Davidson filed a direct appeal with this Court, which was dismissed as untimely. See Davidson v. State, No. 14-05-00839-CR, 2005 WL 3072041, at *1 (Tex. App.-Houston [14th Dist.] Nov. 17, 2005, no pet.) (mem. op., not designated for publication).

         On April 18, 2017, the trial court found that applicant had satisfactorily completed the conditions of supervision and the trial court terminated applicant's deferred adjudication.

         On November 1, 2017, Davidson filed this application for a writ of habeas corpus. The State filed Respondent's Answer.

         On February 20, 2018, the trial court denied applicant's request for hearing on his writ of habeas corpus stating a decision "will be made based upon the pleadings, affidavits, and exhibits filed in this case." The trial court also denied applicant's writ of habeas corpus.

         On March 2, 2018, the trial court entered Findings of Fact and Conclusions of Law. The trial court included the following findings of fact:

8. The Court recalls the testimony of the witnesses during the PSI hearing on June 24, 2005.
9. Based on the Court's prior experience as well as recollection of the PSI hearing, the Court is familiar with attorney Ricardo Rodriguez and his abilities. The Court reviewed an affidavit written by Ricardo Rodriguez, which was included as an exhibit in the Respondent's Answer. In that affidavit, Mr. Rodriguez addressed many of the Applicant's issues mentioned in the Defendant's Application for Writ of Habeas Corpus Pursuant to TCCP 11.072 and Memorandum in Support of (same).
10. The Court finds that the affidavit submitted by Mr. Ricardo Rodriguez is credible and the facts asserted therein to be true.
11. From the PSI, the Court recalled the testimony of real estate law experts for both sides regarding adverse possession.

         The trial court also made the following conclusions of law:

1. The Applicant failed to prove by a preponderance of the evidence that Rodriguez's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
2. The totality of the representation afforded the Applicant was sufficient to protect his right to reasonably effective ...

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