Ex Parte Joshua McFerran v. the State of Texas

Affirmed and Memorandum Opinion filed August 6, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00750-CR

EX PARTE JOSHUA MCFERRAN, Appellant

On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 93022-CR-B

MEMORANDUM OPINION

Appellant, Joshua McFerran, challenges the trial court’s order denying his
second application for writ of habeas corpus. See Tex. Code Crim. Proc. art. 11.072,
§ 9. Appellant initially filed a brief that did not adequately acquaint the court with
the issues in this case or present argument that would enable the court to decide the
case. See Tex. R. App. P. 38.9. In response to the court’s order requiring appellant
to re-brief, appellant filed a motion for this court to consider the appeal on the record,
which we granted. See Tex. R. App. P. 31.1. Having reviewed the record on appeal
of appellant’s second application for writ of habeas corpus, we affirm the trial court’s
order of denial.
BACKGROUND

Appellant entered a plea of guilty to the offense of theft—aggregated. See
Tex. Pen. Code § 31.03(e)(7) (elevating theft offense to a first degree felony if the
value of the property stolen is $300,000 or more). The trial court deferred
adjudication of guilt and placed appellant on deferred adjudication community
supervision for three years. Approximately seven months later the State filed a
motion to adjudicate appellant’s guilt on the grounds that he committed three
additional felony offenses while on community supervision. The record reflects that
appellant did not appeal the order of deferred adjudication, and the motion to
adjudicate is pending.

Appellant’s first application for writ of habeas corpus

On January 23, 2023, appellant filed his first application for writ of habeas
corpus under Code of Criminal Procedure article 11.072. 1 In his first application,
appellant asserted he is “a Bondservant of Jesus Christ signified by my trusteeship
of the irrevocable ecclesiastic trust ‘Kingdom of Amarna Christian Trust’” and was
not “in contract with the State of Texas.” Appellant essentially asserted the trial court
lacked personal jurisdiction over him because he does not identify himself as Joshua
McFerran, the individual who pleaded guilty. According to appellant’s first
application, the State violated his constitutional rights by (1) exercising unlawful
authority over him in derogation of his “complete loyalty to no other authority than

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Appellant attempted to appeal the denial of his first application for writ of habeas corpus
but did not file a timely notice of appeal. McFerran v. State, No. 14-23-00595-CR, 2023 WL
7513859, at *1 (Tex. App.—Houston [14th Dist.] Nov. 14, 2023, no pet.) (mem. op. not designated
for publication). In reviewing the record in this appeal of appellant’s second application for writ
of habeas corpus, we take judicial notice of the record in appellant’s prior attempted appeal. See
Ex parte Joyner, 367 S.W.3d 737, 738 (Tex. App.—Houston [14th Dist.] 2012, no pet.) citing
Turner v. State, 733 S.W.2d 218, 221–22 (Tex. Crim. App. 1987) (“An appellate court may take
judicial notice of its own records in a related proceeding involving the same or nearly the same
parties.”).

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that of Lord Jesus Christ”; (2) interfering with his “rights of conscience in matters
of religion”; and (3) forcing him into slavery.

In responding to appellant’s application, the State attached a record of
appellant’s plea hearing in which he stated he pleaded guilty “freely and voluntarily”
because he was guilty and for no other reason. Appellant further averred that he had
not been threatened, had no “mental problems,” and had not been “adjudged insane.”
Appellant told the trial court he had been admitted to a “mental hospital” six years
earlier but stated on the record that he had no problems understanding the charges
against him. Appellant further stated he understood the range of punishment was
confinement for five to 99 years and that he understood the consequences of his plea.

On March 22, 2023, the trial court denied appellant’s requested habeas relief
finding appellant was “manifestly entitled to no relief.” On July 19, 2023, the State
filed a motion to adjudicate appellant’s guilt, and on August 17, 2023, appellant filed
a notice of appeal challenging the trial court’s March 22, 2023 order. This court
dismissed appellant’s appeal as untimely. McFerran v. State, 2023 WL 7513859, at
*1.

Appellant’s second application for writ of habeas corpus

On August 24, 2023, appellant filed his second application for writ of habeas
corpus under Code of Criminal Procedure article 11.072. In his second application,
appellant argued that the trial court lacked personal jurisdiction over him because he
(1) was not the Joshua McFerran who was charged in the indictment; (2) was not a
citizen of the State of Texas; and (3) does not reside in Texas because its constitution
does not contain “definition or a description of its boundaries.” Appellant
acknowledged in a later filing, on September 6, 2023, that he had filed a previous
application for writ of habeas corpus.

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In response to appellant’s second application for writ of habeas corpus, the
State asserted that appellant was not entitled to habeas relief because his second
application for writ of habeas corpus was barred by article 11.072, section 9 as a
“subsequent application for writ of habeas corpus.” According to the State,
appellant, in his first application for writ of habeas corpus, could have raised the
arguments he raised in his second application and actually did raise those arguments.
In his second application for writ of habeas corpus, appellant made the same or
similar assertions about personal jurisdiction and the State’s lack of authority over
him. Relying on Code of Criminal Procedure article 11.072, section 9, the State
asserted that appellant’s second application for writ of habeas corpus, which was
filed after the final disposition of his first application, could not be considered by the
trial court because the application did not contain sufficient specific facts
establishing that appellant’s current claims and issues had not been and could not
have been previously presented in the first application because the factual or legal
basis for his claims was unavailable on the date he filed his first application.
According to the State, appellant’s claims in his second habeas application had been
presented and disposed in his first application for writ of habeas corpus.

The trial court denied appellant’s requested habeas relief stating its findings
in a written order. Specifically, the trial court found:

[A]rticle 11.072 § 9 of the Texas Code of Criminal Procedure bars
consideration of this application.
[T]he application does not contain sworn allegations of fact, which if
true, would render the Applicant’s confinement illegal; and
[The application] does [not] contain any unresolved facts material to
the Applicant’s confinement.

Appellant timely appealed the trial court’s order.

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ANALYSIS

Standard of Review

Generally, an applicant seeking post-conviction habeas relief must prove his
claims by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865,
870 (Tex. Crim. App. 2002). In reviewing a trial court’s decision to deny habeas
relief, we view the facts in the light most favorable to the trial court’s ruling and will
uphold the trial court’s decision absent an abuse of discretion. See Ex parte Torres,
483 S.W.3d 35, 42 (Tex. Crim. App. 2016). The generally applied abuse-of-
discretion standard is not appropriate when the trial court’s decision does not turn
on the credibility or demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524, 526
(Tex. Crim. App. 1999). When a trial court resolves an application for writ of habeas
corpus on an issue of law, we review the trial court’s ruling de novo. See Ex parte
De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015). We will affirm the trial
court’s decision if it is correct on any theory of law applicable to the case. Ex parte
Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001).

Subsequent Application

Article 11.072 normally restricts habeas applicants to just “one bite of the
apple.” Ex parte Nelson, 546 S.W.3d 742, 747 (Tex. App.—Houston [1st Dist.]
2018, no pet.). However, the statute provides a limited exception for subsequent
applications:

If a subsequent application for a writ of habeas corpus is filed after final
disposition of an initial application under this article, a court may not
consider the merits of or grant relief based on the subsequent
application unless the application contains sufficient specific facts
establishing that the current claims and issues have not been and could
not have been presented previously in an original application or in a
previously considered application filed under this article because the
factual or legal basis for the claim was unavailable on the date the

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applicant filed the previous application.

Tex. Code Crim. Proc. art. 11.072, § 9(a).

Thus, to be entitled to relief under article 11.072, appellant had the burden of
proving that the claims and issues in his subsequent application “have not been and
could not have been presented previously in an original application . . . because the
factual or legal basis for the claim was unavailable on the date [he] filed the previous
application.” Id.

A legal basis is previously unavailable when, at the time of the previous
application, it was “not recognized by and could not have been reasonably
formulated from a final decision of the United States Supreme Court, a court of
appeals of the United States, or a court of appellate jurisdiction of this state on or
before that date.” Tex. Code Crim. Proc. art. 11.072, § 9(b). A factual basis is
considered previously unavailable if it “was not ascertainable through the exercise
of reasonable diligence on or before” the date of the previous application. Id. art.
11.072, § 9(c). The trial court’s rejection of an applicant’s first application for writ
of habeas corpus is the triggering event for article 11.072, section 9’s subsequent
application restrictions. Ex parte Nelson, 546 S.W.3d at 747.

Here, appellant filed his first application for writ of habeas corpus on January
23, 2023, seeking habeas relief from the trial court’s 2022 order of deferred
adjudication placing appellant on community supervision. See Tex. Code Crim.
Proc. art. 11.072, § 1. On March 22, 2023, the trial court denied appellant’s first
application for writ of habeas corpus. See Ex parte Salazar, 510 S.W.3d 619, 625
(Tex. App.—El Paso 2016, pet. ref’d) (article 11.072, section 9’s bar to subsequent
applications for writs of habeas corpus apply after trial court considers and rejects
initial article 11.072 application). On August 24, 2023, appellant filed his second
application for writ of habeas corpus, also seeking habeas relief from the trial court’s

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2022 order of deferred adjudication placing appellant on community supervision.
Appellant’s second application for writ of habeas corpus is a “subsequent
application” under Code of Criminal Procedure article 11.072, section 9. Thus, to be
entitled to habeas relief related to his second application, appellant was required to
overcome article 11.072, section 9’s subsequent application restrictions by
establishing, with “sufficient specific facts,” that his claims in his second application
had not been and could not have been presented previously in his first application
for writ of habeas corpus because the factual or legal bases for the claims were
unavailable on the date he filed his previous application. See Tex. Code Crim. Proc.
art. 11.072, § 9(a); Ex parte Nelson, 546 S.W.3d at 747–48.

Appellant’s second application for writ of habeas corpus does not contain any
specific facts establishing that his claims of lack of personal jurisdiction were not,
and could not have been, presented in his first application for writ of habeas corpus
because of an unavailable factual or legal basis. See id. at 748 (holding trial court
did not err in denying applicant’s subsequent habeas application where applicant
could not demonstrate that the factual basis of his claim was not ascertainable
through the exercise of reasonable diligence before he filed the previous
application). Instead, the majority of appellant’s claims asserted in his second
application were previously raised in his first application for writ of habeas corpus.
To the extent that appellant raised any “new” claims in his second application for
writ of habeas corpus, nowhere in his second application did appellant provide
“sufficient specific facts” that his “new” claims “ha[d] not been and could not have
been presented” in his first application “because the factual or legal basis for the
claim was unavailable on the date [he] filed the previous application.” See Tex. Code
Crim. Proc. art. 11.072, § 9(a).

Because appellant did not meet his burden to show his claims in his second

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application for writ of habeas corpus had not been and could not have been presented
in his previously considered first application as the factual or legal bases for the
claims were unavailable on the date he filed the first application, appellant failed to
comply with Code of Criminal Procedure article 11.072, section 9, and we hold the
trial court did not err in denying appellant habeas relief. See Ex parte Nelson, 546
S.W.3d at 748 (to be entitled to habeas relief under article 11.072 after first habeas
application denied, applicant has burden of proving that claims in subsequent
application had not been and could not have been presented in previous application).

CONCLUSION

After a review of the record on appeal, we affirm the order of the trial court.

PER CURIAM

Panel consists of Justices Jewell, Bourliot, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).

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