Ex Parte David Sidney McKeand
2014 Tex. App. LEXIS 8492
| Tex. App. | 2014Background
- Appellant David McKeand (an attorney who represented himself) pleaded guilty to DWI, received a $2,000 fine and one year probation; related felony evading charge was dismissed.
- He filed an application for writ of habeas corpus claiming collateral consequences from the conviction, that his guilty plea was involuntary, and that he lacked experience to represent himself effectively.
- The trial court denied habeas relief on January 9, 2014; McKeand appealed.
- The reporter’s record of the habeas hearing was not requested or paid for by appellant and was not filed in the appellate court despite multiple notices and opportunities to cure.
- The Court of Appeals considered whether it could review the habeas denial without the reporter’s record and ultimately found that, because no complete record was filed, nothing was presented for review.
- Accordingly, the appellate court affirmed the trial court’s denial of habeas corpus.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collateral consequences and involuntariness of plea entitle habeas relief | McKeand: conviction causes continuing collateral consequences and plea was involuntary | Trial court: denied relief (no relief shown) | Affirmed — not reached on merits because record absent |
| Whether appellant’s lack of experience representing himself voids plea | McKeand: ineffective/ill‑informed self-representation | Trial court: rejected claim at habeas hearing | Affirmed — not reviewed due to missing record |
| Whether appellate court may decide without reporter’s record | McKeand: did not provide reporter’s record or show inability to pay | State/Respondent: requested affirmance under Tex. R. App. P. 37.3 | Court: may only decide issues not requiring reporter’s record; here nothing for review, so affirmance appropriate |
| Standard/burden on habeas review when record absent | McKeand: burden to prove entitlement to relief by preponderance | Trial court/Appellate: presumption that evidence supports trial court when no reporter’s record | Court: applicant still bears burden, and absence of record means appellate court defers to trial court and affirms |
Key Cases Cited
- In re Mott, 137 S.W.3d 870 (Tex. App.—Houston [1st Dist.] 2004) (orig. proceeding) (presumption that evidence supports trial court when reporter’s record absent)
- Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002) (applicant bears burden by preponderance in habeas review)
- Ex parte Wilson, 171 S.W.3d 925 (Tex. App.—Dallas 2005) (deference to trial court’s factual findings, especially credibility)
- Phuong Anh Thi Le v. State, 300 S.W.3d 324 (Tex. App.—Houston [14th Dist.] 2009) (defer to trial court’s implied factual findings in habeas review)
- State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006) (appellate court sustains lower court if ruling reasonably supported and correct on any applicable theory)
- Ex parte Henderson, 565 S.W.2d 50 (Tex. Crim. App. 1978) (in habeas proceedings, judgment affirmed if appellant fails to provide reporter’s record)
- Ex parte Sims, 565 S.W.2d 45 (Tex. Crim. App. 1978) (where no statement of facts or bills of exception, nothing presented for review)