Appeal from the 228th District Court Harris County, Texas
Trial Court Cause No. 1015172A
consists of Justices Christopher, Hassan, and Poissant.
Margaret "Meg" Poissant, Justice.
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.
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
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."
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.
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-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).
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.
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
April 18, 2017, the trial court found that applicant had
satisfactorily completed the conditions of supervision and
the trial court terminated applicant's deferred
November 1, 2017, Davidson filed this application for a writ
of habeas corpus. The State filed Respondent's Answer.
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.
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
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