Appeal from the 228th District Court Harris County, Texas,
Trial Court Case No. 1015171A
consists of Justices Keyes, Goodman, and Countiss.
2005, appellant, Richard Lawrence Nugent, pleaded guilty
without an agreed punishment recommendation to the
first-degree felony offense of theft, in an aggregate amount
in excess of $200, 000.00. See Tex. Penal Code
§§ 31.01(1)(D), 31.03(a), (e)(7),
31.09. The trial court assessed punishment at ten
years' confinement but suspended the sentence and placed
Nugent on ten years' community supervision. In April
2015, Nugent filed an application for writ of habeas corpus
under Article 11.072 of the Texas Code of Criminal Procedure,
asserting that (1) he received ineffective assistance of
counsel, (2) counsel was so ineffective as to render his
guilty plea involuntary, and (3) newly discovered evidence
establishes his innocence. Following a hearing in May 2016,
the trial court denied relief in July 2016. Nugent attempted
an appeal but our Court dismissed the appeal for lack of
jurisdiction because the notice of appeal was untimely. In
January 2018, the trial court granted Nugent's request
for an out-of-time appeal of the habeas denial. We affirm the
trial court's order denying habeas relief.
facts leading up to Nugent's guilty plea in the
underlying case have been summarized in our decision in
Nugent v. State, No. 01-05-00775-CR, 2006 WL 2893429
(Tex. App.-Houston [1st Dist.] Oct. 12, 2006, pet. ref'd)
(mem. op., not designated for publication). Between July 2002
and May 2004, Nugent engaged in a real estate scheme with
codefendant Craig Davidson. Id. at *1. Nugent and
Davidson typically located apparently abandoned residential
real property owned by unsuspecting third parties.
Id. They then would file a false tax deed purporting
to convey title to the property to themselves, or to one of
their various aliases, in an attempt to obtain color of title
for purposes of the Texas adverse possession statute, and
would take temporary control of the property. Id.
Next, using a special warranty deed, they purported to convey
what appeared to be fee simple ownership of the property to
an unsuspecting buyer, in exchange for money or a promise to
pay money. Id. On their face, the deeds generally
appeared to convey full title to the buyers, but a careful
reading revealed that the deeds disclaimed any warranty; at
most, the deeds conveyed Nugent's or Davidson's
"interest" in an unmatured adverse possession
an investigation, the State determined that Nugent and
Davidson committed theft against the legitimate property
owners as well as against the people to whom Nugent and
Davidson then sold the properties-by deceiving the purchasers
into believing that they were buying outright ownership of
the premises, rather than merely unperfected
adverse-possession interests in the properties. In February 2005,
the State charged Nugent and Davidson with the first-degree
felony offense of aggregate theft by deception in an amount
exceeding $200, 000.00. See Tex. Penal Code
§§ 31.01(1)(D), 31.03(a), (e)(7), 31.09. The
indictments listed forty-seven separate
complainants-twenty-four complainants were the rightful
owners of the properties Nugent and Davidson claimed to
adversely possess, and twenty-three complainants were
purchasers of Nugent and Davidson's claimed interest in
April 2005, Nugent pleaded guilty without an agreed
punishment recommendation to the first-degree felony offense
of theft in an aggregate amount in excess of $200, 000.00.
Following Nugent's guilty plea, the trial court ordered
the preparation of a pre-sentence investigation
("PSI") report. At Nugent's sentencing hearing
in June 2005, the State presented testimony of three victims
of Nugent's crime; each testified to the losses he or she
personally had sustained. At the conclusion of the hearing,
the trial court assessed punishment at ten years'
confinement but suspended the sentence and placed Nugent on a
ten-year term of community supervision with conditions,
including a condition requiring payment of restitution to the
complaining witnesses. Nugent was represented by his retained
attorney, Ken Mingledorff, during his guilty plea and the
appealed, solely challenging the amount of restitution
ordered as a condition of his community supervision. See
Nugent v. State, 2006 WL 2893429, at *2. Our court
affirmed the judgment but modified the restitution order to
reflect the trial court's oral pronouncement. See
id. at *3-4.
The Trial Court's Denial of Nugent's Habeas
April 2015, Nugent filed an application for habeas relief
under Article 11.072 seeking to vacate the judgment on the
grounds that (1) Nugent received ineffective assistance of
counsel because he pled guilty to acts that do not constitute
an offense; (2) the advice of Nugent's trial counsel was
so deficient as to render Nugent's guilty plea
involuntary; and (3) newly discovered evidence establishes
that Nugent is actually innocent of theft, as charged.
Following a hearing on May 31, 2016, the trial court denied
Nugent's request for habeas relief in a written order
dated July 25, 2016.
trial court's order denying habeas relief included
findings of fact and conclusions of law. Among other things,
the trial court included the following findings of fact:
10. The Court recalled the testimony of the witnesses during
the PSI hearing on June 24, 2005 as well as the testimony
from a Motion to Adjudicate Hearing, which occurred in July
2009. That Motion was dismissed on July 23, 2009 after the
Court denied the Motion.
11. Based on the Court's prior experience as well as
recollection of the PSI hearing, the Court is familiar with
attorney Ken Mingledorff and his abilities. The Court
reviewed an affidavit written by Ken Mingledorff, which was
included as an exhibit in the Respondent's Answer. In
that affidavit, Mr. Mingledorff discussed his strategy in
terms of having Nugent plead guilty and his presentation of
witnesses and evidence at the PSI hearing.
12. The Court finds that the affidavit submitted by Mr. Ken
Mingledorff is credible and the facts asserted therein to be
13. From both the PSI and the Motion to Adjudicate, the Court
recalled the testimony of real estate law experts for both
sides regarding adverse possession.
trial court also made the following conclusions of law:
1. The Applicant failed to prove by a preponderance of the
evidence that Mingledorff'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
assistance of counsel in the primary case.
3. The Applicant's actions constituted a criminal
offense, namely Aggregate Theft, as opposed to adverse
4. The Applicant's plea was made voluntarily, knowingly
and intelligently. Attorney Mingledorff's advice to
Applicant was not so ineffective as to render Applicant's
guilty plea involuntary.
5. The Applicant failed to prove, by a preponderance of the
evidence, that there is newly discovered evidence of the
applicant's innocence and that, by clear and convincing
evidence, despite the evidence of guilt that supports the
conviction, no reasonable juror could have found applicant
guilty in light of the alleged new evidence. Ex parte
Brown, 205 S.W.3d at 545; Ex parte Elizondo,
947 S.W.2d 202, 206 (Tex. Crim. App. 1996); Ex parte
Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002)
(applicant bears burden of proving, by preponderance of
evidence, facts that would entitle him to relief).
6. In all things, the Applicant has failed to demonstrate
that his conviction was improperly obtained.
B.Nugent's Appeal from the Denial of ...