Ex Parte Adam James Edmund Demirs v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00228-CR

Ex parte Adam James Edmund Demirs

FROM THE 27TH DISTRICT COURT OF BELL COUNTY

NO. 77,399-AA, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

Adam James Edmund Demirs was convicted of the state-jail-felony offense of

criminal mischief and was sentenced to six months’ confinement in jail; however, his sentence

was suspended, and he was placed on community supervision for four years. See Tex. Penal

Code §§ 12.35, 28.03; Tex. Code Crim. Proc. art. 42A.053. Following his conviction, Demirs

appealed to this Court, and this Court affirmed the trial court’s judgment. See Demirs v. State,

No. 03-20-00084-CR, 2022 WL 221234 (Tex. App.—Austin Jan. 26, 2022, pet. ref’d) (mem.

op., not designated for publication). Demirs then filed an application for writ of habeas corpus,

seeking to challenge his conviction. See Tex. Code Crim. Proc. art. 11.072. The habeas court

denied Demirs’s application. Demirs appeals the habeas court’s ruling. We will affirm the

habeas court’s order.

BACKGROUND

In 2017, Traci Matulik heard a loud noise at the gas station that she managed.

When she looked up, she saw a man later identified as Demirs swinging one of the gas nozzles

into a gas pump. She asked Demirs what he was doing, to which he replied that hitting the gas

pump made him feel good. Following this encounter, Demirs returned to his truck and drove

away, and Matulik wrote down his license plate number and called the police. The incident was

captured by a surveillance camera.

After the incident was reported to the police, the police determined that the

license plate was for a vehicle owned by Demirs. Demirs was charged with criminal mischief

for intentionally or knowingly damaging or destroying property without the effective consent

of the owner. See Tex. Penal Code § 28.03(a). The indictment alleged that the amount of

pecuniary loss was more than $2,500 but less than $30,000. See id. § 28.03(b)(4).

Before trial, Demirs paid more than $4,000 to repair the gas pump. At trial,

Matulik testified that she saw Demirs hit a gas pump with a gas nozzle. In his testimony, Demirs

stated that he became frustrated when the credit-card reader did not read his credit card and

spontaneously swung the nozzle at the gas pump twice, causing the reader to pop open.

Although Demirs admitted that he intentionally hit the pump with the nozzle and intended to

cause the damage, he also testified that he did not intend to damage the gas pump and that he

recklessly caused the damage. During its closing argument, the State asserted that Demirs

intentionally caused the damage and argued that he admitted that he caused the damage and

intended to hit the gas pump. In his closing, Demirs argued that the State failed to prove that he

intentionally or knowingly damaged the pump and that the evidence showed that he acted

spontaneously without intending to damage it.

A jury convicted Demirs of the charged offense, and he elected to have the

trial court assess his punishment. The trial court sentenced Demirs to six months in state

jail but suspended the sentence and placed him on community supervision for four years.

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Demirs appealed his conviction. In one of his issues, Demirs argued that the trial court erred

by failing to instruct the jury that criminal mischief is a result-of-conduct offense. Demirs,

2022 WL 221234, at *3-5. In another issue, Demirs argued that his trial attorney provided

ineffective assistance by failing to object to the lack of an instruction specifying that criminal

mischief is a result-of-conduct offense and by failing to object to the State’s argument that the

culpable mental states applied to his conduct rather than the result of his conduct. Id. at *5-6.

This Court overruled all Demirs’s issues. Regarding the first issue listed above,

the Court quoted a portion of his argument as follows:

The court instructed the jury that a person acts intentionally, or with intent, with

respect to the nature of his conduct or to a result of his conduct “when it is his

conscious objective or desire to engage in the conduct or cause the result.” It did

not instruct the jury that criminal mischief is a “result of conduct” offense and

that, in order to convict Demirs, the jury had to find beyond a reasonable doubt

that he intended to cause the damage rather than intended to hit the gas pump

with the nozzle.

Id. at *4. However, this Court noted that Demirs provided no authority for the proposition that

criminal mischief is a result-of-conduct offense other than a “passing reference” to a case by the

Court of Criminal Appeals reviewing “a conviction for indecency with a child.” See id.; see also

Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007) (construing statute governing

indecency with child and stating in dicta that unlike offense of indecency with child, offenses

of murder, injury to child, and criminal mischief focus on result); Aguirre-Mata v. State,

125 S.W.3d 473, 476 (Tex. Crim. App. 2003) (explaining that dicta has no binding effect);

Christian v. State, 286 S.W.3d 63, 69 n.7 (Tex. App.—Texarkana 2009, pet. ref’d) (explaining

that “[d]icta is language in an opinion that is unnecessary to the disposition of the case” and that

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appellate courts are “duty bound to accept the guidance of decisions of the Texas Court of

Criminal Appeals . . . unless the language of the decision in question is only dicta”).

Further, this Court set out the relevant portions of the definitions and instructions

in the charge as follows:

A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective desire to

engage in the conduct or cause the result. . . . A person acts knowingly, or with

knowledge, with respect to the nature of his conduct or the circumstances

surrounding his conduct when he is aware of the nature of his conduct or that the

circumstances exist. A person acts knowingly, or with knowledge[,] with respect

to a result of his conduct when he is aware that his conduct is reasonably certain

to cause the result.

....

Now bearing in mind the foregoing instructions, if you believe from the evidence

beyond a reasonable doubt, that the Defendant, Adam James Edmond Demirs, on

or about the 4th day of April, 2017, in the County of Bell, State of Texas, as

alleged in the indictment did then and there intentionally and knowingly damage

and destroy tangible property, to-wit: a gas pump, by striking it, without the

effective consent of Traci Matulik, the owner of the property, and did thereby

cause pecuniary loss in the amount of more than $2,500.00 and less than

$30,000.00 to the owner, you will find the defendant guilty of the offense of

Criminal Mischief . . . .

Demirs, 2022 WL 221234, at *5.

After setting out the above portion of the charge, this Court explained that the

charge was consistent with the statutory definitions for the mental states for “intentionally” and

“knowingly” and with the elements of the offense of criminal mischief set out in the Penal Code.

Id. (discussing sections 6.03 and 28.03 of Penal Code). Moreover, this Court explained that

where the Court of Criminal Appeals has not categorized an offense as a nature-of-conduct or

result-of-conduct offense, a trial court does not err by setting out the full statutory definitions for

“intentionally” and “knowingly,” which includes elements regarding the nature of the offender’s

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conduct and the results of his conduct. Id. (discussing various cases). Because no binding

determination had been made regarding whether the offense of criminal mischief “is nature

based or results based,” this Court concluded that the trial court did not err by including the full

definitions (result and conduct) for “intentionally” and “knowingly” in the charge and overruled

this issue. Id.

Turning to Demirs’s ineffective-assistance claim, this Court noted that Demirs

claimed on appeal that his trial attorney provided ineffective assistance because the attorney “did

not object to the charge that failed to instruct the jury that criminal mischief is a ‘result of

conduct’ offense and to the erroneous argument that the culpable mental states apply to the

conduct rather than to the result.” Id. However, this Court again noted that Demirs provided “no

authority for the proposition that criminal mischief is a ‘result of conduct’ offense, nor that a

jury must be so instructed.” Id. at *6. After observing that trial attorneys are not ineffective for

failing to make futile objections or request instructions that are not required, this Court explained

that it could not “conclude that counsel’s decision not to request the instruction” or object to the

State’s closing argument “was unreasonable or otherwise deficient” and, therefore, overruled

Demirs’s issue on appeal. Id.

Following this Court’s ruling, Demirs filed an application for writ of habeas

corpus, asserting that his trial attorney provided ineffective assistance because his attorney “did

not object to the court’s charge that failed to instruct the jury that criminal mischief is a ‘result of

conduct’ offense and to the prosecutor’s erroneous closing argument that the culpable mental

states apply to the conduct rather than to the result.” Demirs again noted that the jury instruction

contained the full definitions for “intentionally” and “knowingly” and did not “limit the

definitions of the culpable mental states to the result of [his] conduct.” Further, Demirs again

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argued that his trial counsel failed to object to the State’s allegedly improper argument during its

closing that he was guilty because he admitted that he intended to hit the pump twice.

Demirs attached to his application an email purporting to be from his trial

attorney in which his trial attorney stated, among other things, that he concluded that criminal

mischief “was a conduct-intended legal issue” after researching the issue. Based on this

exchange and on his assertions that criminal mischief is a result-of-conduct offense, Demirs

asserted in his application that his trial attorney performed deficiently and that there was no

“sound strategic reason not to object to the erroneous definitions of the culpable mental states”

and “to the prosecutor’s misstatement of the law to [his] detriment during closing argument.”

Further, Demirs argued that the deficient performance resulted in prejudice because “the jury

was misled regarding the applicable law and almost certainly convicted [him] based on his

testimony that he intentionally engaged in the conduct without finding that he intended to cause

the result.” Moreover, Demirs argued that had the jury charge properly instructed the jury and

had his trial attorney objected to the State’s “misstatement of the law during closing argument,

there is a reasonable probability that the jury would have acquitted” him. In addition to filing

his writ application, Demirs filed a motion to order his trial attorney to submit an affidavit

explaining the basis for his conclusion about the type of offense criminal mischief is and

explaining his decision not to object to the jury instructions and to the State’s argument.

After considering Demirs’s application and motion as well as the State’s response,

the habeas court denied the motion to order Demirs’s trial counsel to submit an affidavit and

denied Demirs’s writ application. The habeas court also entered findings of fact and conclusions

of law supporting its rulings, including the following that are relevant to the issues presented

on appeal:

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Findings of Fact

....

23. [T]he Court finds that in this instance, [trial counsel]’s input was not

necessary to conclude that his was a reasonable strategic decision not to object to

the trial court’s charge, because the Applicant provided no authority for the

proposition that [trial counsel]’s performance was deficient.

24. Therefore, because the ground for relief that the Applicant asserts in this

Petition is the same point of error that he advanced on direct appeal that was

adjudicated adversely to him, the Court finds that habeas review is procedurally

barred.

....

27. Here, the Applicant argues that Criminal Mischief is a “result of conduct”

offense and the trial court should have instructed the jury that in order to convict

the Applicant, they had to find beyond a reasonable doubt that he intended to

cause damage rather tha[n] intended to hit the gas pump with the nozzle.

28. However, as noted by the appellate court, the Court finds that the Applicant

provides no authority that Criminal Mischief is a result of conduct offense, and

where the Court of Criminal Appeals has not categorized an offense, “a trial court

does not err by including the statutory definition of both intentionally and

knowingly because both definitions allow the jury to consider the nature of the

offender’s conduct or the results of his conduct.[”]

....

29. The record reflects that the trial court in the Applicant’s case provided the jury

with the statutory definitions of both intentionally and knowingly, therefore, the

Court finds that a result of conduct instruction under current law was not required,

thus [trial counsel] had no legal basis to request such an instruction or make an

objection.

30. The Court finds that as noted by the appellate court, “[t]rial counsel is not

ineffective for failing to make futile objections or request instructions that are not

required” . . . or are based on unsettled law.

....

Conclusions of Law

1. The Applicant is procedurally barred from asserting his habeas claim that his

trial attorney was ineffective when he failed to object to the jury charge because

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he advanced the same ground of error on direct appeal and it was adjudicated

adversely to him.

2. In the alternative, the Applicant fails to show, that given the totality of [trial

counsel]’s representation, based on current law, his performance fell below an

objective standard of reasonableness, or that he committed unprofessional errors

hindering the Applicant’s defense.

Demirs appeals the habeas court’s order denying his writ application and denying

his motion to have his trial counsel submit an affidavit.

STANDARD OF REVIEW AND GOVERNING LAW

An individual convicted of a felony or misdemeanor may seek habeas “relief

from an order or judgment of conviction ordering community supervision.” Tex. Code Crim.

Proc. art. 11.072, § 1. When a person files a writ application, he “must be, or have been, on

community supervision, and the application must challenge the legal validity of . . . the

conviction for which or order in which community supervision was imposed” or “the conditions

of community supervision.” Id. art. 11.072, § 2(b). When making its determination, the trial

court “may order affidavits, depositions, interrogatories, or a hearing, and may rely on [its]

personal recollection.” Id. art. 11.072, § 6(b). The writ of habeas corpus is an extraordinary

remedy. See Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim. App. 2014). To succeed under a

post-conviction writ of habeas corpus, the applicant must prove, “by a preponderance of the

evidence, the facts that would entitle him to relief.” Ex parte Ali, 368 S.W.3d 827, 830 (Tex.

App.—Austin 2012, pet. ref’d).

Appellate courts review a trial court’s ruling on an application for writ of habeas

corpus under an abuse-of-discretion standard. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex.

App.—Houston [1st Dist.] 2014, no pet.). “A trial court abuses its discretion when its ruling is

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arbitrary or unreasonable.” Gaytan v. State, 331 S.W.3d 218, 223 (Tex. App.—Austin 2011,

pet. ref’d). But a trial court does not abuse its discretion if its ruling lies within “the zone of

reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); see

Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). Under that standard, appellate

courts review the record evidence “in the light most favorable to the trial court’s ruling.” Ex

parte Nelson, 546 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.] 2018, no pet.). “[I]f the

resolution of the ultimate question turns only on the application of legal standards, the appellate

court reviews those determinations de novo.” Diamond v. State, 613 S.W.3d 536, 545 (Tex.

Crim. App. 2020). A determination that an applicant is procedurally barred as a matter of law

from raising an issue in a writ application is a question of law that appellate courts review

de novo. Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005). Appellate courts

“review de novo the trial court’s resolution of mixed questions of law and fact that do not turn

on witness credibility.” Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017).

DISCUSSION

In his first issue on appeal, Demirs argues that the habeas court erred by denying

his habeas application because he was denied effective assistance at trial when his trial attorney

did not object to the jury charge or to the State’s closing argument. In his second issue, Demirs

asserts that the habeas court erred by refusing to order his trial attorney to file an affidavit as part

of the habeas proceeding.

Ineffectiveness Claim

When presenting his ineffectiveness claim, Demirs recognizes that this Court

rejected his ineffective-assistance claim on direct appeal but contends that this should not bar

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him from seeking habeas relief concerning his trial counsel’s representation. As support, Demirs

refers to cases in which appellate courts have explained that although “a claim which was

previously raised and rejected on direct appeal is” generally “not cognizable on habeas corpus,”

that general bar “should not be applied where direct appeal cannot be expected to provide an

adequate record to evaluate the claim in question” and where “the claim might be substantiated

through additional evidence gathering in a habeas corpus proceeding.” See Ex parte Torres,

943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Moreover, Demirs notes that in most cases the

record on direct appeal is inadequate to establish an ineffectiveness claim, in part because the

record does not usually establish trial counsel’s reasons for doing or failing to perform the

actions forming the basis for the claim. See id. Further, Demirs highlights that he attached to his

writ application an email from his trial counsel in which his counsel stated that he concluded that

criminal mischief “was a conduct-intended legal issue” and asserts that “this new evidence

makes the issue cognizable in a habeas proceeding and establishes that [his trial counsel] had no

strategic reason not to object.”

Although Demirs correctly points out that appellate courts have determined that

some ineffectiveness claims may be made in habeas proceedings even after the issues have

been resolved against the defendants on direct appeal, appellate courts have not held that all

previously addressed ineffectiveness claims may be presented in subsequent habeas proceedings.

On the contrary, in Ex parte Torres, the case principally relied on by Demirs, the Court of

Criminal Appeals did determine that the habeas applicant could pursue an ineffectiveness claim,

but the circumstances of that case differ significantly from those here. In that case, the Court

of Criminal Appeals allowed the subsequent ineffectiveness claim because the appellate court

concluded on direct appeal that there was insufficient evidence to evaluate the ineffectiveness

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claim and determine whether his trial counsel was “laboring under a false impression that

[applicant] could appeal the judge’s denial of his request to represent himself.” Id. at 475.

Moreover, the Court of Criminal Appeals later clarified “that specific allegations of attorney

performance that were rejected on direct appeal are not cognizable on habeas corpus . . . when

the defendant does not offer additional evidence to support that specific claim of deficient

performance in the habeas proceeding.” Ex parte Nailor, 149 S.W.3d 125, 131-32 (Tex. Crim.

App. 2004).

In the present case, this Court did not determine on direct appeal that the evidence

was insufficient to determine whether Demirs’s trial counsel was ineffective; rather, this Court

explained that there was no binding authority supporting Demirs’s assertion that criminal

mischief is a result-of-conduct offense, which served as the foundation for his ineffectiveness

claim; that in the absence of this type of authority, it is not error to include the full definitions for

“intentionally” and “knowingly,” which both have elements for a defendant’s conduct and the

result of his conduct; and that because there was no error stemming from the inclusion of the full

definitions in the jury charge, Demirs’s trial counsel did not provide ineffective assistance by

failing to object to the inclusion of the full definitions in the jury charge or to the portions of the

State’s closing argument asserting that the culpable mental states apply to his conduct. Demirs,

2022 WL 221234, at *5-6. And the email from Demirs’s trial attorney stating that he concluded

that criminal mischief is a conduct-oriented offense does not constitute support for the claim

of deficient performance under existing law and under prevailing professional norms for the

reasons articulated above. Considering the preceding, the habeas court did not err by concluding

that Demirs’s ineffectiveness claim was procedurally barred. See Ex parte Nailor, 149 S.W.3d

at 131-32.

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Even if Demirs’s claim were not procedurally barred, we would be unable to

sustain it. As support for his ineffectiveness claim, Demirs refers to the same passing reference

made by the Court of Criminal Appeals in dicta that this Court determined did not provide

authority for the proposition that criminal mischief is a result-oriented offense.1 Demirs also

argues that the language of the criminal-mischief statute indicates that it is a result-of-conduct

offense because the focus of the portion at issue is, according to him, on the damage or

destruction rather than the nature of the offense. Next, Demirs likens criminal mischief to types

of assaultive offenses involving injury to an individual that have been deemed result-of-conduct

offenses, see, e.g., Sneed v. State, 803 S.W.2d 833, 835-37 (Tex. App.—Dallas 1991, pet. ref’d),

and urges that “[t]here is no logical reason to treat offenses involving damage to property

differently; an injury is an injury.” From the preceding, Demirs asserts that the State had to

prove that he intended to cause the damage resulting from his hitting the pump. Referencing the

language of the email from his trial attorney, Demirs argues that his trial attorney provided

ineffective assistance by failing to object to the inclusion in the jury charge of language

authorizing a conviction based on the nature of the conduct and to object to the State’s closing

argument asserting that the jury could convict based on the evidence showing that he intended

his conduct.

To demonstrate ineffective assistance of counsel, a defendant must establish by a

preponderance of the evidence both deficient performance by counsel and prejudice. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Miller v. State, 548 S.W.3d 497, 499 (Tex.

1

Demirs also refers to cases from other states, but those cases are not binding authority.

See Jeffrey v. State, 169 S.W.3d 439, 443 n.1 (Tex. App.—Texarkana 2005, pet. ref’d) (stating

that Texas appellate courts are only obligated to follow decisions by higher Texas courts and

United States Supreme Court).

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Crim. App. 2018). First, the defendant must show that his counsel’s performance fell below an

objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687-88; Ex parte Scott, 541 S.W.3d 104, 115 (Tex. Crim. App. 2017). For claims asserting

that trial counsel was ineffective for failing to object, the defendant must show that the trial court

would have committed error by overruling the objection. Vaughn v. State, 931 S.W.2d 564,

566 (Tex. Crim. App. 1996). Regarding prejudice, the defendant must show the existence of a

reasonable probability that the result of the proceeding would have been different absent his

counsel’s deficient performance. Strickland, 466 U.S. at 694; Burch v. State, 541 S.W.3d 816,

820 (Tex. Crim. App. 2017). A reasonable probability is one that is sufficient to undermine

confidence in the outcome. See Burch, 541 S.W.3d at 820; Nava v. State, 415 S.W.3d 289, 308

(Tex. Crim. App. 2013). “It will not suffice for [the defendant] to show ‘that the errors had some

conceivable effect on the outcome of the proceeding.’” Perez v. State, 310 S.W.3d 890, 894

(Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 693). A claim of ineffective assistance

must be “firmly founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App.

2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). “Failure to

make the required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.” Strickland, 466 U.S. at 700; see Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001).

As set out above, at the time of trial, no controlling Texas authority provided

that criminal mischief is a result-of-conduct offense as suggested by Demirs. “[B]asing an

ineffective assistance claim on caselaw that is unsettled at the time of counsel’s actions ‘would

be to engage in the kind of hindsight examination of effectiveness of counsel the Supreme Court

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expressly disavowed in Strickland.’” Vaughn, 931 S.W.2d at 567 (quoting Ex parte Davis, 866

S.W.2d 234, 241 (Tex. Crim. App. 1993)). Furthermore, as explained above, in circumstances in

which no binding determination has been made regarding whether a charged offense is a nature-

of-conduct or a result-of-conduct offense, it is proper to include in the jury charge the full

definitions for the mental states for both types of offenses. Demirs, 2022 WL 221234, at *5.

Accordingly, even though Demirs’s trial counsel stated in an email after trial that he believed

criminal mischief was a nature-of-conduct offense, we cannot conclude that the habeas court

erred by concluding that Demirs failed to establish that his trial counsel’s alleged failures to

object fell below an objective standard of reasonableness. See Vaughn, 931 S.W.2d at 567, 569

(determining that attorney was not ineffective for failing to object to argument where caselaw

was unsettled as to whether overruling objection would be error); see also Okonkwo v. State,

398 S.W.3d 689, 701 (Tex. Crim. App. 2013) (Cochran, J., concurring) (explaining that “because

the law is unsettled on this issue, appellant’s counsel could not be found ineffective for failing to

request a jury instruction on the statutory mistake-of-fact defense”).

For these reasons, we overrule Demirs’s first issue on appeal.

Attorney Affidavit

In his second issue on appeal, Demirs asserts that the habeas court erred by

refusing to order his trial attorney to file an affidavit as part of the habeas proceeding. As

support for his issue on appeal, Demirs notes that after receiving the email from his trial attorney

that was unsworn, he filed a motion requesting that the habeas court order the attorney to file

an affidavit addressing what research he performed before trial that led him to conclude that

criminal mischief was a nature-of-conduct offense and why he did not object to the jury

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charge and the State’s closing argument. Demirs contends that those answers would have aided

the habeas court in making its determination but that the habeas court erroneously denied his

motion. Accordingly, Demirs argues that this Court should reverse the habeas court’s rulings,

remand the case, and order the habeas court to compel his attorney to file an affidavit answering

his questions.

As part of a habeas proceeding under article 11.072, a habeas court may, among

other options, order that affidavits be prepared and filed before ruling on the habeas application.

See Tex. Code Crim. Proc. art. 11.072, § 6(b). However, although article 11.072 authorizes

habeas courts to order affidavits, “it does not require that the [habeas] court do so.” Ex parte

Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). Instead, article 11.072

provides habeas courts with “the discretion to determine what is necessary to make its

determination.” See Ex parte Garza, No. 13-10-00391-CR, 2012 WL 914939, at *2 (Tex.

App.—Corpus Christi–Edinburg Mar. 15, 2012, no pet.) (mem. op., not designated for

publication); see also Gaytan, 331 S.W.3d at 223 (setting out when court abuses its discretion).

As pointed out by the State in its response to Demirs’s motion requesting an

affidavit, the habeas court was informed that this Court addressed the ineffectiveness claim and

determined that it was not error to include the nature-of-conduct language in the charge and that,

therefore, Demirs’s trial counsel was not ineffective for failing to object to that portion of the

charge or to the State’s closing argument pertaining to his intent to engage in the conduct at

issue. See Demirs, 2022 WL 221234, at *5-6. In light of that determination, the habeas court

could have reasonably determined that it was unnecessary to order trial counsel to submit an

affidavit explaining why he believed criminal mischief is a nature-of-conduct offense and why

he failed to make the objections framing the ineffectiveness claim.

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For these reasons, we conclude that the habeas court did not abuse its discretion

by denying Demirs’s motion seeking to compel his trial counsel to submit an affidavit and,

therefore, overrule his second issue on appeal.

CONCLUSION

Having overruled Demirs’s issues on appeal, we affirm the habeas court’s order

denying his application for writ of habeas corpus.

__________________________________________

Thomas J. Baker, Justice

Before Justices Baker, Triana, and Smith

Affirmed

Filed: September 22, 2023

Do Not Publish

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