Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-26-00215-CR ___________________________ EX PARTE JUAN ISIDRO VITAR On Appeal from the 372nd District Court Tarrant County, Texas Trial Court No. C-372-W012802-1851799-AP Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION Juan Isidro Vitar pleaded guilty to impersonating a public servant in exchange for four years’ deferred-adjudication community supervision, a $1,000 fine, and a prohibition on his working in law enforcement. See Tex. Penal Code § 37.11. Barely a month later, Vitar, proceeding pro se, filed an unverified application for writ of habeas corpus claiming actual innocence, see Tex. Code Crim. Proc. art. 11.072, that the trial court denied in an order adopting the State’s proposed findings of fact and conclusions of law. He appealed, but because Vitar failed to establish that the trial court abused its discretion, we affirm. I. Background A. The Criminal Allegations Vitar and DeLawrence Gilbert formerly worked together at the Lancaster ISD Police Department. At some point, Vitar began working for the City of Talty’s Police Department as a peace officer, and he helped Gilbert get a job at Talty too. Gilbert rose to become Talty’s Chief of Police. In October 2023, Vitar resigned his position as a police officer in Talty to seek employment in another law-enforcement agency. About six months later, it came to the attention of the Texas Commission on Law Enforcement (TCOLE) that after leaving Talty, Vitar had been unable to find long-term employment as a police officer but continued working off-duty security jobs in his police uniform and was thus potentially impersonating a public servant. Alicia Armstrong, whom TCOLE’s records identified as a “RollKall Service Delivery 2 Director,” had identified and questioned another individual who was working for her security company “as a police officer while not appointed to a police agency” and reported him to TCOLE. Through this investigation, TCOLE additionally learned that Vitar had been doing the same thing. In fact, TCOLE discovered through its electronic records that Vitar had altered TCOLE’s computerized records to show that he was still appointed to an agency— the Talty Police Department—when, in fact, he was not employed by Talty. TCOLE also uncovered that Chief Gilbert had not blocked Vitar’s access to TCOLE records until around April 20, 2024, and questioned whether he was potentially complicit in Vitar’s fabrication. Before then, Vitar had repeatedly accessed his TCOLE records to confirm that they showed his prospective off-duty employers that he was a full-time peace officer for the Talty Police Department. He was able to work numerous off- duty security jobs as a police officer between November 2023 and May 2024, including in Tarrant County. In June 2024, TCOLE interviewed Vitar about its investigation, confronted him with documents, and recorded the interview. Vitar claimed that after he had resigned from Talty to go work for The Colony—which lasted five days—he contacted Chief Gilbert about getting his job back. Chief Gilbert told Vitar that Talty did not want to rehire him. But according to Vitar, the chief also told him that even though he had resigned from Talty’s police force, Chief Gilbert could “hold his commission” until another agency hired him. 3 As part of this effort, Vitar accessed TCOLE’s electronic records to report that he was a full-time peace officer with Talty. Chief Gilbert did not submit the statutorily mandated separation form to TCOLE (an F-5) that would have indicated Vitar’s resignation from Talty,1 but at some point, Chief Gilbert filed an F-5 postdated to a year after Vitar’s actual resignation date. When confronted about this, Vitar admitted that he had resigned from Talty on October 24, 2023, and had not been its employee or even stepped inside its building since that date. TCOLE’s computerized records, however, showed that he was still appointed as a full-time Talty peace officer between October 24, 2023, and October 24, 2024. TCOLE investigator David New and a TCOLE sergeant questioned Vitar about when and whether he had been appointed to work for Talty. Vitar “admitted that he was the one who appointed himself to Talty as a full-time officer on his resignation date.” When asked why he had done this, “Vitar admitted [that] this was to allow him to work any off-duty jobs.” Knowing that Vitar had resigned from Talty on October 24, 2023, and with Vitar admitting that he had not worked for Talty since that day, New went over Vitar’s TCOLE records from after that date and before April 20, 2024, when Chief Gilbert had blocked Vitar’s access to the records. They also specifically discussed the See Tex. Occ. Code § 1701.452 (requiring the head of a law-enforcement 1 agency to notify TCOLE of a TCOLE licensee’s resignation from the agency within seven business days); see also 37 Tex. Admin. Code pt. 7 ch. 217 § 217.7 (2025) (Tex. Comm’n on Law Enf’t, Reporting Appointment & Separation of a Licensee). 4 30-plus jobs that Vitar had booked through a technology platform named RollKall after his October 2023 resignation, including 12 jobs in Tarrant County between February 3, 2024 and April 16, 2024. Vitar admitted that “these were traffic jobs” during which he wore a police shirt. At the time, he was driving a Dodge Charger that he had bought from Talty; it still had a light bar and magnetic police decals. New asked Vitar whether “between October 2023 and April 2024 he worked as a police officer because he thought [that Chief] Gilbert was holding his commission.” Vitar responded, “[Y]es sir.” Vitar agreed, however, that he had not actually been appointed to an agency. New asked him if his representation to TCOLE that he was working for Talty was false and he said, “[Y]es sir.” Vitar said that both he and Chief Gilbert had come up with the plan so that he could keep working off-duty security jobs while he looked for another police agency to hire him. Several times during the interview, Vitar claimed that he did not know at the time of his past actions that they were wrong, but he acknowledged realizing otherwise during the interview. Eventually, Vitar admitted knowing that his conduct was wrong “from the beginning.” As New told him, “You were not a police officer, and you were acting as a police officer. You described that yourself.” Vitar responded mid-sentence, “Yes sir.” Toward the end of the interview, Vitar was asked if he had any questions for TCOLE. He did not, but he responded, “I should have never done this.” 5 B. The Plea Agreement The State charged Vitar with impersonating a public servant. See Tex. Penal Code § 37.11. Rather than facing the prospect of a potential 10-year sentence and up to a $10,000 fine, see id. §§ 12.34, 37.11(b), Vitar pleaded guilty in exchange for the State’s recommendation that he be placed on deferred-adjudication community supervision for four years, fined $1,000, and prohibited from working in law enforcement. In his plea paperwork, Vitar judicially confessed to committing the acts described in the indictment2 and signed standard plea statements and waivers. Among them, Vitar acknowledged that he was aware of the consequences of his plea; was mentally competent; and was knowingly, freely, and voluntarily entering his plea. He further acknowledged that no one had threatened, coerced, forced, persuaded, or promised him anything in exchange for his plea. Thereafter, the trial court signed an order of deferred-adjudication community supervision consistent with the terms of the plea agreement. C. The Habeas Application About a month later, Vitar filed an unverified Article 11.072 writ application. See Tex. Code Crim. Proc. art. 11.072. Presenting one main issue, he argued that the “[e]vidence will show [that] I am innocent.” He then summarized the facts supporting 2 The indictment alleged that on or about February 3, 2024, in Tarrant County, Vitar “did impersonate a peace officer with intent to induce Alicia Armstrong to submit to the pretended official authority of the defendant or to rely on the pretended official acts of the defendant by appearing at work with a badge and gun while claiming to be an appointed peace officer.” 6 his application. He argued that he was permitted to do off-duty work even if he was not “physically working” for an agency, and he disputed whether he had worked for Alicia Armstrong in Tarrant County—as alleged in the indictment. He claimed that his trial attorney had not provided the prosecutor with evidence proving his innocence. He filed sundry documents that he claimed proved his actual innocence. Notably absent, however, is any evidence showing that Talty or any other law- enforcement agency had actually hired or appointed him to work as a peace officer during his off-duty security work in Tarrant County. D. The State’s Proposed Findings of Fact and Conclusions of Law and Vitar’s Responsive Filings The State responded by filing proposed findings of fact and conclusions of law. Attached to the filing were (1) the plea documents, including Vitar’s signed judicial confession; (2) the trial court’s deferred-adjudication order; (3) case-event notes; (4) excerpts from TCOLE’s report concerning its investigation of Vitar; and (5) an audio recording of TCOLE’s June 2024 interview of Vitar (which the report accurately summarized) that contained Vitar’s admissions of wrongdoing described above. The State cited the attached evidence and proposed the following: 7 FINDINGS OF FACT General Facts 1. On January 30, 2026, Applicant pleaded guilty, pursuant to a plea agreement, to the third-degree felony offense of impersonating a public servant. . . .[3] 2. In accordance with the plea agreement, the trial court deferred a finding of guilt and placed Applicant on deferred[-]adjudication community supervision for a period of four years. . . . 3. Applicant did not appeal his placement on deferred[-]adjudication community supervision. . . . .... Evidence Sufficiency of the Evidence 7. Applicant alleges that the evidence proves his innocence. . . . 8. Applicant does not allege that there was no evidence to support his placement on deferred adjudication. . . . 9. Applicant pleaded guilty to the offense of impersonating a public servant. . . . 10. Applicant judicially confessed that he committed the offense of impersonating a public servant. . . . Actual Innocence 11. Applicant admits that he was aware of the innocen[ce]- proving[ ]evidence at the time he pleaded guilty. . . . 3 We have deleted the State’s citations to the evidence but have otherwise left the formatting and citations unmodified. 8 12. Applicant presents no newly discovered evidence that proves his innocence. . . . 13. On June 12, 2024, Applicant admitted to David New of the Texas Commission on Law Enforcement (TCOLE) that he knew he resigned from Talty PD on October 24, 2023. . . . 14. On June 12, 2024, Applicant admitted that he falsified records and held himself as a police officer when he wasn’t one. . . . 15. On June 12, 2024, Applicant admitted that he knew it was wrong. . . . CONCLUSIONS OF LAW General Law 1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant “must prove by a preponderance of the evidence that the error contributed to his conviction or punishment.” Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). 2. Relief may be denied if the applicant states only conclusions[] and not specific facts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an applicant’s sworn allegations alone are not sufficient to prove his claims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988). .... Evidence Sufficiency of the Evidence 9. “A challenge of the sufficiency of the evidence presents one of those instances where we can never consider the merits of the applicant’s claim.” Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). 10. Sufficiency of the evidence “is not cognizable by way of post conviction collateral attack.” Ex parte McLain, 869 S.W.2d 349, 350 (Tex. Crim. App. 1994). 9 11. “If the record is devoid of evidentiary support for a conviction, an evidentiary challenge is cognizable on a writ of habeas corpus.” Ex parte Perales, 215 S.W.3d 418, 420 (Tex. Crim. App. 2007). 12. An allegation of “no” evidence is cognizable on writ of habeas corpus because a conviction based on “no” evidence violates due process. Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). 13. A guilty plea is “some” evidence to support a conviction. Ex parte Williams, 703 S.W.2d 674, 683 (Tex. Crim. App. 1986). 14. A judicial confession or a stipulation of evidence provides sufficient evidence to sustain a conviction based on a guilty plea. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980)[ (op. on reh’g)]; McKenna v. State, 493 S.W.2d 514, 515 (Tex. Crim. App. 1972). 15. Applicant’s plea of guilty was more than “some” evidence to support his placement on deferred[-]adjudication community supervision. 16. Applicant’s judicial confession was sufficient evidence to support his placement on deferred[-]adjudication community supervision. Actual Innocence 17. An applicant is actually innocent under Herrera v. Collins if some newly discovered evidence proves his innocence. See Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 . . . (1993)). 18. The test for a Herrera-type actual[-]innocence claim is whether Applicant has shown “by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). 19. “[T]he [new] evidence presented must constitute affirmative evidence of the applicant’s innocence.” . . . Franklin, 72 S.W.3d [at] 678 . . . (emphasis added). 10 20. Applicant has failed to present any newly discovered affirmative evidence of innocence. 21. Applicant has failed to prove that he is actually innocent under Herrera. 22. Applicant’s sole ground for relief is DENIED. Vitar filed numerous documents in response to the State’s proposed findings and conclusions, but he did not file any affidavits. He continued to argue that “nothing in the Texas Commission Statu[t]e and regulation handbook . . . states that it is illegal for a police chief to appoint a police officer at any capacity without physically show[ing] up to the department.” But he presented no evidence that he was actually employed by or appointed as a peace officer by Talty or any other agency during the time he was working the off- duty jobs in his police shirt. Rather, he repeatedly claimed that because Chief Gilbert had agreed to “hold his commission”—which he viewed as the equivalent of an appointment to be a Talty peace officer—he believed he was authorized to perform the off-duty work in his police shirt. E. The Habeas Ruling After the matter was referred to a criminal-law magistrate, see Tex. Gov’t Code § 54.656(a)(4), the magistrate determined that he could resolve Vitar’s claims solely on the record. The magistrate signed an order (1) adopting the State’s proposed findings of fact and conclusions of law as the magistrate’s own and (2) denying the habeas 11 application. Thereafter, the district court adopted and ratified the magistrate’s findings, conclusions, and order. See id. § 54.662. This appeal ensued. II. Discussion In this habeas appeal, we did not request additional briefing, see Tex. R. App. P. 31.1, so we will review whether the trial court erred by denying Vitar’s application based on the grounds he presented in his habeas application: actual innocence and an embedded claim that his counsel was ineffective by failing to present the alleged evidence of actual innocence to the prosecutor before Vitar pleaded guilty. Vitar did not carry his burden to show any error in the trial court’s order denying his habeas application. A. Relevant Law and Standard of Review Article 11.072 of the Code of Criminal Procedure establishes the procedures for a writ of habeas corpus in a criminal case in which the defendant was originally placed on community supervision. See Tex. Code Crim. Proc. art. 11.072. An applicant seeking habeas relief bears the burden to prove by a preponderance of the evidence that he is entitled to that relief. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016); Ex parte Salim, 595 S.W.3d 844, 853 (Tex. App.—Fort Worth 2020, no pet.). We review the trial court’s denial of habeas relief for an abuse of discretion. Salim, 595 S.W.3d at 853 (citing Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet. ref’d) (op. on reh’g)). 12 We apply the Guzman standard to our review of the trial court’s findings. State v. Guerrero, 400 S.W.3d 576, 583 & n.18 (Tex. Crim. App. 2013) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We defer almost completely to the trial court’s “factual findings when supported by the record, especially when those findings are based upon credibility and demeanor.” Id. at 583. This deferential review applies even when, as here, the findings are based on written evidence rather than on live testimony. Id. But we review de novo pure questions of law and application-of-law-to- fact questions that do not turn on credibility and demeanor. Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017) (reviewing a postconviction Article 11.072 ruling). The sole purpose of an appeal from a trial court’s habeas ruling is to “do substantial justice to the parties,” and in resolving such an appeal, we may “render whatever judgment . . . the nature of the case require[s].” Tex. R. App. P. 31.2, 31.3; Ex parte Evans, 410 S.W.3d 481, 483–84 (Tex. App.—Fort Worth 2013, pet. ref’d). We will uphold the trial court’s judgment as long as it is correct on any applicable theory of law. Evans, 410 S.W.3d at 484 (first citing Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.); and then citing Ex parte Primrose, 950 S.W.2d 775, 778 (Tex. App.—Fort Worth 1997, pet. ref’d)). B. Claim of Actual Innocence Vitar’s primary habeas ground is a Herrera-type actual-innocence claim—that is, he has asserted a bare claim of innocence based solely upon a claim of newly discovered evidence. See Herrera, 506 U.S. at 396, 113 S. Ct. at 858; Ex parte Brown, 205 13 S.W.3d 538, 544 (Tex. Crim. App. 2006). While such a claim is cognizable in this case, see Brown, 205 S.W.3d at 544, as the Court of Criminal Appeals has said, “Establishing a bare claim of actual innocence is a Herculean task,” id. at 545. To prevail on a Herrera claim, an applicant must show by clear and convincing evidence that no reasonable juror would have found him guilty in light of the new evidence. Ex parte Navarijo, 433 S.W.3d 558, 566–67 (Tex. Crim. App. 2014); Ex parte Vasquez, 499 S.W.3d 602, 607 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). In reviewing a Herrera claim, the trial court must first consider whether the applicant presented newly discovered evidence that affirmatively establishes his innocence. Mello, 355 S.W.3d at 831. If he presents such evidence, the trial court then determines whether the applicant proved by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence. Id. The trial court must examine the “newly discovered evidence” and determine whether the “new” evidence, when balanced against the “old” inculpatory evidence, unquestionably establishes the applicant’s innocence. Id. The trial court does not review the fact finder’s verdict but instead decides whether the newly discovered evidence would have convinced the fact finder of the applicant’s innocence. Id. If the applicant entered a guilty plea, the guilty plea—along with any evidence entered, or stipulation to the evidence, supporting the plea—must be considered in weighing the old evidence against the new evidence. Id. 14 Applying Guzman’s standard to the trial court’s findings, we defer to the trial court’s findings that Vitar pleaded guilty to impersonating a public servant as charged in the indictment, confessed to committing that crime, admitted that he was aware of his alleged innocence-proving evidence at the time he pleaded guilty, and thus presented no newly discovered evidence proving his innocence. See Guerrero, 400 S.W.3d at 583 & n.18; Guzman, 955 S.W.2d at 89. The record contains Vitar’s audio recorded interview in which he admitted to committing the conduct constituting impersonating a public servant and his signed judicial confession—both of which support the trial court’s findings. Additionally, Vitar’s Article 11.072 writ application undercuts his claim of having newly discovered evidence because it states that he had evidence showing that Chief Gilbert had appointed him before ending his service on April 20, 2024, and that to “the best of [his] knowledge[, he did] not believe [he had ]ever met or spoken with Alicia Armstrong.” Vitar claimed that he had provided this information to his trial counsel before the plea hearing and that his trial counsel had failed to provide this evidence—“that will prove [m]y innocence”—to the prosecutor. In short, Vitar admitted that his evidence of innocence was not newly discovered, and the record therefore supports the trial court’s findings of fact that (1) Vitar had “admit[ted] that he was aware of the innocen[ce]-proving[ ]evidence at the time he pleaded guilty and (2) “present[ed] no newly discovered evidence that proves his innocence.” Vitar’s admission further supported the trial court’s conclusions that he had failed to carry his 15 burden under Herrera of establishing his actual innocence. See Vasquez, 499 S.W.3d at 607–09 (affirming habeas court’s denial of actual-innocence claim because the evidence supported the habeas court’s finding that the allegedly innocence-proving evidence was either known or could have been known with reasonable diligence prior to the habeas applicant’s guilty plea); see also State v. Moffat, No. 01-24-00720-CR, 2026 WL 2410906, at *8 (Tex. App.—Houston [1st Dist.] Aug. 18, 2026, no pet. h.) (mem. op., not designated for publication) (stating that habeas applicant had failed to explain or show how he could not have learned through the exercise of due diligence of the allegedly innocence-proving information before trial). But even if we treated the evidence that Vitar alleged was newly discovered as such, he nonetheless failed to carry his habeas burden. In his initial habeas application and throughout his filings, he claimed that he “was following the law,” and he equated Chief Gilbert’s alleged agreement to “hold his commission” while he looked for other employment as tantamount to his being “appointed” by a law-enforcement agency. But evidence of Vitar’s erroneous belief that his actions were legal—when they were not—does not constitute newly discovered evidence. See Ex parte Nugent, 593 S.W.3d 416, 430 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (“[Applicant’s] argument that he is actually innocent because his acts were legal does not present new evidence.”). The Texas Penal Code defines a public servant as “a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties: . . . an officer, employee, or agent of 16 government.” Tex. Penal Code § 1.07(a)(41)(A). 4 Vitar claimed to have been a peace officer for the City of Talty during his off-duty work. This would have required him to meet two requirements: (1) to have a TCOLE license and (2) to have been “elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent” of the City of Talty. See id.; Tex. Occ. Code § 1701.301 (requiring generally that an agency may not appoint a person to serve as an officer without the person holding a TCOLE license); 37 Tex. Admin. Code pt. 7 ch. 211 § 211.1(a)(44) (defining a licensee as “[a]n individual holding a license issued by [TCOLE]”), (51) (separately defining a peace officer as “[a] person elected, employed, or appointed as a peace officer under the provisions of the Texas Occupations Code, § 1701.001”) (2026) (Tex. Comm’n on Law Enf’t, Administration Definitions); see also Chambers v. State, 580 S.W.3d 149, 159–60 (Tex. Crim. App. 2019) (discussing who is a peace officer). 5 4 During Vitar’s 2024 off-duty work, Section 1701.001 of the Texas Occupations Code defined a peace officer as a person “elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure.” Act of May 17, 2023, 88th Leg., R.S., ch. 765, § 2.146, 2023 Tex. Gen. Laws 1837, 1964. Former Article 2.12 stated that a “peace officer” included “police officers of an incorporated city, town, or village . . . who hold a permanent peace officer license under Chapter 1701, Occupations Code.” Act of May 17, 2023, 88th Leg., R.S., ch. 765, § 1.001, 2023 Tex. Gen. Laws 1837, 1839 (codified at Tex. Code Crim. Proc. art. 2A.001(3)). 5 In the civil context, the Texas Supreme Court has also stated that “[p]olice officers are governmental agents that derive all their powers under the law through their employing governmental entity.” Garza v. Harrison, 574 S.W.3d 389, 401 & n.50 (Tex. 2019) (outlining provisions in the Texas Code of Criminal Procedure and the Texas Occupations Code establishing that a person must be licensed as well as hired, appointed, or elected to serve as a peace officer). 17 On this second prong—election, employment, or appointment—Vitar produced no evidence. In the City of Talty, its police chief “serve[s] at the pleasure of the Town Council.” Talty, Tex., Ordinance 2003-60 (Sept. 9, 2003). 6 Further, by ordinance, Talty’s police chief “may appoint such police officers as he may deem necessary and appropriate, subject to approval by the Town Council.” Id. Thus, Talty retains the ultimate authority to decide whether to appoint or employ persons on its police force. See id. During his recorded interview with TCOLE, Vitar claimed that Chief Gilbert wanted to hire him after things did not work out at The Colony, but he admitted that he had not, in fact, been rehired by the City of Talty because Chief Gilbert had told him “they don’t want you back.” Vitar further admitted that after his October 24, 2023 resignation from Talty, Talty had not actually employed him, and he had not even stepped inside Talty’s new police building. In his habeas application, Vitar claimed that Chief Gilbert’s alleged agreement to hold Vitar’s commission by allowing him to continue representing to TCOLE that he was a full-time employee of the Talty Police Department meant that he had actually been so appointed. But Vitar presented no evidence that the City of Talty ever 6 Rule 204 of the Texas Rules of Evidence permits courts, either upon motion or sua sponte, to take judicial notice of ordinances. See Tex. R. Evid. 204(b); Hadley v. State, Nos. 02-23-00317-CR, 02-23-00318-CR, 2024 WL 5083195, at *5 (Tex. App.— Fort Worth Dec. 12, 2024, pet. ref’d) (mem. op., not designated for publication). 18 rehired him, appointed him, or otherwise authorized his return to be a Talty police officer. Vitar also claimed that his trial counsel had confirmed to him that “Chief Gilbert had finally told the truth that he had me appointed,” which “David New had told him.” Aside from being unsworn double hearsay that the trial court could have simply discredited, this alleged statement did not establish that Talty had approved Vitar’s supposed appointment, which it was required to do. See Talty, Tex., Ordinance 2003-60. Accordingly, the record demonstrates that while Vitar was a TCOLE licensee and was representing to TCOLE—albeit falsely—that he was a full-time Talty police officer, he was not in fact a peace officer during the times he worked off- duty security in Tarrant County because Talty had not actually employed or appointed him to serve as a Talty police officer. Assuming solely for argument’s sake that the documents Vitar filed in support of his habeas application were newly discovered, we conclude that he failed to offer any evidence that he was actually a Talty peace officer during his off-duty Tarrant County work.7 We thus conclude that Vitar did not show by clear and convincing 7 Concerning his arguments about Alicia Armstrong, he judicially confessed to the crime as outlined in the indictment, which named Armstrong. The record contains evidence that she acted on behalf of RollKall and reported concerns about persons falsely claiming to be peace officers while working off-duty jobs assigned through RollKall. Vitar pointed to an email for his off-duty RollKall assignments stating that his contact for that assignment was P. McGrail. But Vitar presented no evidence that Alicia Armstrong (1) was not employed by RollKall, (2) was not a RollKall supervisor, or (3) was not involved in determining whether he was actually authorized to take the 19 evidence that no reasonable juror would have convicted him in light of the new evidence. See Elizondo, 947 S.W.2d at 209; Mello, 355 S.W.3d at 831. Because the trial court correctly determined that he failed to prove his actual innocence under Herrera, we overrule Vitar’s appellate arguments concerning his claimed actual innocence.8 C. Claim of Ineffective Assistance of Counsel As part of his habeas claim, embedded in his claim of actual innocence, Vitar asserted that his counsel was ineffective by failing to present to the prosecutor evidence of his actual innocence that he claims he had given his counsel before the plea hearing. He specifically points to an email he sent his counsel before the plea hearing, in which he stated that the evidence “proves that I was appointed by Talty Police[,] and Chief Gilbert knew I was appointed.” An applicant seeking relief based on ineffective assistance of counsel must demonstrate that (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and (2) the applicant was prejudiced as a result of counsel’s errors in that, but for those errors, there is a reasonable probability of a different outcome. Torres, 483 S.W.3d at 43 (citing Strickland v. Washington, 466 U.S. RollKall assignment. Without evidence of specific facts like these, Vitar’s bare unsworn assertions claiming to have not heard of Armstrong are insufficient to prove his habeas claims. See Empey, 757 S.W.2d at 775 (stating that “[e]ven sworn allegations are not alone sufficient proof”). 8 In his appellate arguments, Vitar also argues, “I do not meet any of the elements of the crime.” To the extent that Vitar is trying to raise a legal-sufficiency challenge independent of his actual-innocence claim, such a sufficiency challenge is not properly before us. See Grigsby, 137 S.W.3d at 674; McLain, 869 S.W.2d at 350. 20 668, 687, 104 S. Ct. 2052, 2064 (1984)). If the applicant fails to make a showing under either prong, his claim for ineffective assistance of counsel must be denied. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Here, although the trial court did not make a specific finding on Vitar’s embedded ineffective-assistance complaint, the trial court’s conclusion that Vitar had failed to prove that he is actually innocent is fatal to his claim of ineffective assistance. This is so because Vitar’s ineffective-assistance complaint is predicated on his contention that he provided evidence of his actual innocence to his counsel, who then failed to provide such evidence to the prosecutor. But as we have discussed above, Vitar did not provide any evidence to his counsel of his actual innocence because he had no evidence demonstrating that Talty or any other agency had appointed him to serve as a peace officer during the time he worked off duty in Tarrant County. His unsubstantiated and incorrect belief that his unilateral notice to TCOLE stating that he was a full-time peace officer in Talty between October 23, 2023, and October 23, 2024, was not evidence of his actual appointment. Simply put, his email contained no evidence that Talty had appointed him. Accordingly, because he provided no evidence of his actual innocence to his counsel, his counsel could not have been deficient in failing to provide nonexistent evidence of his actual innocence to the State before the plea proceeding. Having failed to meet his burden on Strickland’s deficiency prong, Vitar was not entitled to habeas 21 relief based on his embedded ineffective-assistance argument, and the trial court properly denied his application. See Tex. R. App. P. 31.2, 31.3; Evans, 410 S.W.3d at 483–84. We thus overrule Vitar’s appellate arguments concerning his claims of ineffective assistance of counsel.9 III. Conclusion Having overruled Vitar’s appellate arguments, we affirm the trial court’s order denying his Article 11.072 habeas application. /s/ Wade Birdwell Wade Birdwell Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: September 24, 2026 9 Although one of Vitar’s later filings also used the words “Brady Violation” in its title, see Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963), he never actually argued that ground or presented any evidence to show a Brady violation, see Ex parte Smith, No. 02-24-00299-CR, 2024 WL 4562504, at *3 (Tex. App.—Fort Worth Oct. 24, 2024, no pet.) (mem. op., not designated for publication) (discussing the elements to establish a Brady due-process violation). Because Vitar did not raise or present any evidence of a Brady violation before the habeas court, he has not preserved any complaint of a Brady violation for our review. See Evans, 410 S.W.3d at 485 (refusing to consider habeas argument that was not raised in the trial court). 22