COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NOS. 2-08-366-CR 2-08-367-CR 2-08-368-CR 2-08-369-CR 2-08-370-CR 2-08-371-CR
EX PARTE JEFFREY HOLLIDAY KARLSON
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
OPINION
Introduction
Appellant Jeffrey Holliday Karlson appeals the trial court’s denials of his
applications for writs of habeas corpus. We dismiss two of these six appeals
for want of jurisdiction; we affirm the trial court’s orders in the remaining cases. Background Facts
In 2004, the State charged appellant with six crimes, including two
assault offenses,1 two drug offenses,2 interference with an emergency call,3
and unlawful restraint.4 Appellant missed court appearances and forfeited
bonds related to these charges in March and August 2004; officers rearrested
him as a result of both of these forfeitures.
1 … A sworn police statement indicated that on an early morning in January 2004, appellant fought with Melanie Meredith, his roommate, and that during the fight, appellant pepper sprayed Meredith and struck her with a rubber mallet. Appellant claims that he acted in self-defense. Another statement alleged that in May 2004, appellant shoved, choked, and “body slammed” Lisa Marie James after she refused his advances and tried to leave his motel room. Appellant attached evidence to his habeas applications relating that he did not assault James and that he only detained her because he suspected that she had stolen some of his property. 2 … The State charged appellant with possession of a dangerous drug (Neurontin) and possession of a controlled substance (hydrocodone) based on the discovery of these substances after an officer stopped appellant’s vehicle for expired registration, arrested appellant for outstanding warrants, and observed him “shuffling his feet around on the ground.” Appellant attached an affidavit to his habeas applications stating that the drugs were not his; he also attached a sworn statement from a passenger in his vehicle indicating that the drugs did not belong to appellant, but instead belonged to another passenger, Katrina Lesperance. From the documents attached to his applications, appellant theorized that Lesperance stated the drugs belonged to appellant because she was being investigated by Child Protective Services and because she was under deferred adjudication community supervision for her own felony drug offense. 3 … The State alleged that following the May 2004 alleged assault of James, appellant refused to admit responding officers into his motel room. 4 … The unlawful restraint charge also concerned the May 2004 assault.
2 In September 2004, while in custody, appellant submitted letters to the
Denton county and district clerks 5 stating that he wanted to “fire [his] current
attorney,” Carey Piel, because Piel allegedly refused to visit appellant to discuss
his cases, discussed cases with and accepted payment from appellant’s father
without appellant’s permission, and had a “defeatist attitude” aimed at coercing
appellant to accept a plea bargain. On the same day the county clerk filed
appellant’s letter, appellant (with the assistance of Piel) entered no contest
pleas to the two drug offenses, one of the assault offenses, and the unlawful
restraint charge. The trial court found appellant guilty of the four offenses and
sentenced him to 180 days’ confinement on each offense; it suspended the
sentences for twenty-four months while it placed appellant on community
supervision.
Based on his no contest pleas to those four charges, appellant filed pleas
in bar to prosecution of the two remaining charges—the January 2004 assault
and the interference with the May 2004 emergency call—under section 12.45
of the penal code. See Tex. Penal Code Ann. § 12.45 (Vernon 2003) (stating
that the trial court can take unadjudicated offenses into consideration during
punishment and that after doing so, with the State’s consent, prosecution of
5 … The county clerk filed the letter in one of appellant’s assault cases; it does not appear in the record of the other five cases subject to this appeal.
3 such offenses is barred). On September 16, 2004, the trial court, acting in
accordance with the State’s recommendation, sustained appellant’s pleas in bar
and ordered the prosecution of these two charges barred with prejudice.
In August 2008, appellant filed applications for writs of habeas corpus in
each of his six cases, alleging that he received ineffective assistance from Piel
and that his pleas were involuntary.6 Appellant attached sworn statements to
his applications that averred to the following summarized facts.
6 … He therefore claimed violations of his federal and state constitutional rights. In the four cases in which he received convictions, appellant filed the applications pursuant to article 11.072 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005). Article 11.072 provides an opportunity for habeas corpus relief for defendants who challenge a conviction that resulted in community supervision. Id. § 2(b)(1); see Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). In the two cases in which the trial court sustained appellant’s pleas in bar to prosecution, he filed the applications under articles 11.05, 11.09, and 11.16. See Tex. Code Crim. Proc. Ann. arts. 11.05, 11.09, 11.16 (Vernon 2005). Appellant’s applications differ slightly in their discussion of the charges underlying each of the six cases as well as the attached documents related to those charges, but Piel’s alleged wrongful conduct, as discussed herein, commonly formed the basis for relief in each application. For this reason, we will summarize the relevant facts alleged in each application, but we will consider the applications together to determine whether the trial court’s denials of the applications should be affirmed.
4 Appellant’s allegations
In early 2004, appellant retained Piel and met with him several times to
discuss appellant’s pending charges.7 During these discussions, appellant told
Piel that he was not interested in any plea bargain, and Piel told appellant that
he would provide an “aggressive legal defense,” including filing a motion to
suppress evidence related to the drug cases and using a non-prosecution
statement from Meredith to gain dismissal of one of the assault cases.
Appellant told Piel to file the motion to suppress (and agreed to pay an
increased fee to Piel for the motion); he also succeeded in persuading Meredith
to sign a non-prosecution statement and told Piel about Meredith’s willingness
to do so.
In subsequent meetings between he and appellant, Piel discussed the
State’s plea offers and the potential that appellant could be placed on
community supervision; however, when appellant reiterated that he wanted to
contest the charges through a trial, Piel reaffirmed that he would file the motion
to suppress and engage in an aggressive defense. In May 2004, Piel informed
appellant for the first time that the district attorney’s office would not dismiss
7 … Appellant’s affidavit asserts that Piel advertised his specialization in assault cases and that Piel expressed that he also had experience in defending against drug charges.
5 the assault charge against Meredith based on a non-prosecution statement;
however, Piel told appellant that the assault case was triable because of
“mistakes the police made.” Appellant asked Piel why he still had not filed the
motion to suppress, and he told Piel to either file the motion or return the
portion of Piel’s fee related to it. Piel responded by telling appellant that if he
filed the motion, it would harm appellant’s chances for a favorable plea bargain.
Appellant again stated he was not interested in pleading guilty, then Piel said
that filing the motion to suppress would be futile and that appellant would lose.
On May 28, 2004, appellant called Piel from jail after police arrested him
for his second assault charge. Piel was disgusted to learn about appellant’s
new arrest, and when appellant explained that he had been “maced,” Piel
responded that appellant “probably deserved it.” Piel persuaded appellant’s
father to not post appellant’s bail; thus, appellant remained in confinement.
When appellant later met with Piel, Piel told him that he had to enter into a plea
bargain because there were “too many charges.” Appellant maintained his
innocence of the charges arising from the May 28, 2004 arrest, but Piel “didn’t
care and now [appellant] knew that [he] had to get another attorney or [he]
would be convicted.” University of North Texas legal advisor Kathryn
McCauley referred appellant to Jason Jacoby, an attorney who did not have the
“hopeless, defeatist attitude” that Piel had. However, appellant did not have
6 money to pay Jacoby’s retainer fee, and appellant’s father also would not pay
Jacoby.8
In August 2004, after appellant missed a court date and forfeited his bail
bond, his father and a detective allegedly conspired to have appellant
rearrested. Appellant’s father refused to secure a bond for appellant so that
appellant would accept a plea bargain because appellant’s father “had been
influenced against him” by Piel. On August 24, 2004, Piel visited appellant and
asked him to sign a power of attorney that assigned all of appellant’s legal
rights to his father.9 At that time, appellant and Piel had an argument in which
appellant accused Piel of being a “set up man” who only wanted to pursue plea
bargains. Appellant realized that he “had lost complete control of [Piel] over to
[his] father,” who paid Piel’s fees without appellant’s permission.
After the August 24, 2004 meeting, appellant only saw Piel at court
appearances; Piel refused to return his calls or come to the jail for visits. Piel
8 … Jacoby was later appointed as appellant’s attorney on a fraudulent use of identifying information charge that is not subject to this appeal. Appellant contends that without his permission, Piel replaced Jacoby to represent him on this charge and that Piel similarly replaced another attorney on a misdemeanor marijuana charge without his permission. 9 … Copies of a general power of attorney that appointed appellant’s father to handle all of appellant’s “financial and business affairs” are attached to appellant’s habeas applications. The general power of attorney indicated that it could be revoked by filing documents with the county clerk.
7 told appellant that he could not win at trial and that he was guilty. Appellant
wanted Piel to withdraw as counsel, but Piel refused, stating that he worked
for appellant’s father, rather than appellant. When appellant and Piel had
strategic disagreements, appellant’s father threatened to “disinherit and
disown” appellant unless he obeyed Piel. Eventually, Piel presented a plea
bargain to appellant, and appellant accepted the plea bargain because the court
“took no action on [his] letters requesting that Piel be discharged” and because
Piel refused to pursue the motion to suppress or request a contested trial.
Jacoby submitted a sworn statement (that appellant attached to his
habeas applications) confirming McCauley’s referral, appellant’s expressed
unhappiness and disagreements with Piel, appellant’s father’s involvement in
retaining Piel, and Piel’s substitution for Jacoby on the fraudulent use of
identifying information charge. Specifically, Jacoby stated that Piel was upset
that Jacoby had been appointed to appellant’s fraudulent use of identifying
information case and that Piel opined that appellant did not need a court
appointed lawyer. Finally, Jacoby stated that he recalled going to visit
appellant in the jail to tell him that he was no longer appellant’s lawyer on that
case, and he remembered how disappointed appellant was that “Piel was back
on his case.”
8 Appellant’s father also submitted a statement that detailed appellant’s
disagreements with Piel and appellant’s desire to discharge him. The statement
confirmed the following:
• appellant told his father that he was innocent of the charges brought against him and that he wanted to enter not guilty pleas;
• appellant was “disenchanted” with Piel and wanted to discharge him because appellant was concerned that Piel was not willing to contest appellant’s charges;
• appellant’s father paid Piel’s fees after appellant instructed him not to do so because appellant’s father believed that Piel was “well connected with the district attorney’s office” and could best represent appellant;
• appellant’s father asked Piel to draft a power of attorney so that appellant’s father could manage appellant’s affairs, and appellant’s father used this power of attorney to threaten appellant for not following Piel’s advice by entering a plea bargain;
• Piel consistently desired to have appellant take a plea bargain, while appellant consistently desired to contest the charges;
• Piel discussed confidential information with appellant’s father; and
• appellant entered his no contest pleas “as a result of joint pressure on him” caused by his father’s and Piel’s desires.
Appellant also attached other affidavits to his applications concerning the
incidents giving rise to the offenses to which he entered no contest pleas and
the defenses he would have used at trial related to those charges.
9 Piel’s response
In September 2008, the trial court ordered that a hearing on appellant’s
habeas applications be conducted by affidavit, and it required Piel to prepare a
response to appellant’s allegations. Piel’s affidavit stated that though he and
appellant had disagreements, appellant continued to want Piel to be his
attorney. Specifically, Piel’s affidavit acknowledged,
[appellant] told me he did not want me to represent him several times. And then he told me he did want me to represent him. He would appear angry with me one minute, and then he would flip- flop back to wanting me to represent him again. From what I could tell, he treated his father the same way—wanting his help one moment, and not wanting it the next. Overall, there was never any doubt as to the fact that he wanted me to represent him and his father to participate in his defense.
Among other things, Piel’s affidavit also explained that
• appellant gave consent for Piel’s substitution for Jacoby on appellant’s fraudulent use of identifying information case, and appellant only filled out indigence forms because that signaled “his way of blaming [Piel] and everyone else for his trouble”;
• appellant’s September 2004 letter to the court signified his “petulant way of always going back and forth” on the issue of Piel’s representation;
• appellant approved of Piel taking money from and discussing the cases with appellant’s father, though Piel “did not go into much detail” with appellant’s father about appellant’s cases;
• contrary to the affidavits submitted by appellant, Piel never told appellant that he worked for his father instead of him;
• appellant and his father both asked Piel to prepare the power of attorney;
10 • no viable argument existed that evidence of the drugs should have been suppressed (because appellant did not complain of any illegal search but only contended that he was not adequately linked to the drugs), and appellant did not pay Piel any money specifically earmarked for a suppression motion;
• appellant’s drug cases were poor candidates for trial because (1) Piel believed that under cross-examination, appellant’s temper “would flair up and his manic, crazed personality would be revealed to the jury,” (2) the jury would not believe testimony from a “druggie-friend witness,” and (3) an officer believed he saw appellant kicking at the drugs on the ground;
• appellant never told Piel that the drugs were not his; and
• while appellant desired initially to plead not guilty, and expressed this desire in a “crazed, manic manner,” Piel did not force appellant to plead guilty, Piel and appellant “always reached agreement on a course of action,” and appellant decided to plead no contest after carefully considering Piel’s advice.
The trial court’s decision
On September 26, 2008, the State filed proposed findings of fact and
conclusions of law.10 On October 6, 2008, the trial court denied appellant’s
habeas applications and adopted the findings of fact and conclusions of law
that the State had submitted. The trial court found that Piel’s affidavit was
“more credible” than the affidavits attached to appellant’s habeas applications,
and it concluded that appellant failed to demonstrate that Piel afforded
10 … The State made such a filing in each of the six cases, though the proposed findings contained in each case and the documents attached to the findings slightly differ in relation to the specific charges at issue.
11 ineffective assistance or that his pleas were involuntary. Appellant objected to
the findings of fact (contending that the evidence attached to his habeas
applications contradicted Piel’s affidavit) and conclusions of law and filed his
notices of these appeals.
Jurisdiction
When a trial court lacks jurisdiction to consider a habeas application, we
also have no jurisdiction to consider the same. See Dahesh v. State, 51
S.W.3d 300, 303 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). In two
of appellant’s cases, in which the trial court barred prosecution, appellant filed
habeas applications under articles 11.05, 11.09, and 11.16 of the code of
criminal procedure.11 See Tex. Code Crim. Proc. Ann. arts. 11.05, 11.09,
11.16. These articles respectively state,
The Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law.
Id. art. 11.05.
11 … He also filed the applications under two sections of the Texas Constitution. See Tex. Const. art. V, §§ 8, 16. These sections generally relate to the jurisdiction of district and county courts. Id.
12 If a person is confined on a charge of misdemeanor,12 he may apply to the county judge of the county in which the misdemeanor is charged to have been committed, or if there be no county judge in said county, then to the county judge whose residence is nearest to the courthouse of the county in which the applicant is held in custody.
Id. art. 11.09.
A judge of the district or county court who has knowledge that any person is illegally confined or restrained in his liberty within his district or county may, if the case be one within his jurisdiction, issue the writ of habeas corpus, without any motion being made for the same.
Id. art. 11.16.
For a court to have jurisdiction over a habeas application in a
misdemeanor case under section 11.09, an applicant must be “confined” or
“restrained” by either an accusation or a conviction. See Ex parte Schmidt,
109 S.W.3d 480, 483 (Tex. Crim. App. 2003); Ex parte Rinkevich, 222 S.W.3d
900, 902 (Tex. App.—Dallas 2007, no pet.); Dahesh, 51 S.W.3d at 302.
Collateral consequences related to a conviction, such as exclusion from military
service or use of the conviction to enhance punishment in other cases, may
constitute confinement. Ex parte Crosley, 548 S.W.2d 409, 410 (Tex. Crim.
App. 1977); see State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston
12 … Both of the cases in which the court barred prosecution of appellant were misdemeanors.
13 [1st Dist.] 2007, pet. struck) (noting that “the fact that [an applicant] is not
physically confined does not preclude his application or deprive the trial court
of jurisdiction”); Ex parte Davis, 748 S.W.2d 555, 558 (Tex. App.—Houston
[1st Dist.] 1988, pet. ref’d).
We sent appellant a letter expressing our concern that because the trial
court barred prosecution against him in two of the six cases subject to this
appeal, we had no jurisdiction over his applications in those two cases. 13
Appellant filed a response to our letter, contending that though prosecution had
been barred pursuant to section 12.45 of the penal code, he was subject to
having the cases offered in “any future sentencing hearing as part of his prior
criminal history in an effort by the State to obtain a more severe sentence,
because a Plea in Bar is the equivalent in law to being found guilty of the
offense and becomes part of the defendant’s ‘criminal history.’” Section 12.45
states:
(a) A person may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty.
13 … We have found no cases directly considering whether a court has jurisdiction to consider a habeas claim related to an offense in which prosecution has been barred under section 12.45.
14 (b) Before a court may take into account an admitted offense over which exclusive venue lies in another county or district, the court must obtain permission from the prosecuting attorney with jurisdiction over the offense.
(c) If a court lawfully takes into account an admitted offense, prosecution is barred for that offense.
Tex. Penal Code § 12.45.
For his proposition that a conviction barred under section 12.45 may
nonetheless be used as evidence in sentencing within future cases, appellant
relies in part on Perea v. State, 870 S.W.2d 314, 318 (Tex. App.—Tyler 1994,
no pet.). In Perea, the Tyler Court of Appeals held that when a defendant’s
prosecution is barred under section 12.45 of the penal code, the barred offense
is still “part of a defendant’s prior criminal record and become[s] a judgment of
conviction.” Id.; see also Woodard v. State, 931 S.W.2d 747, 750 (Tex.
App.—Waco 1996, no pet.).
However, in Lopez v. State, the Court of Criminal Appeals unanimously
disapproved of the Perea decision, calling the Tyler court’s logic “faulty.” 253
S.W.3d 680, 686 (Tex. Crim. App. 2008). In Lopez, the court considered
whether an offense barred under section 12.45 could be used as impeachment
evidence under rule of evidence 609(a), which states,
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if
15 the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
Tex. R. Evid. 609(a) (emphasis added); Lopez, 253 S.W.3d at 684–85. The
court noted that a “conviction” is a “judgment or sentence that the accused is
guilty as charged.” Lopez, 253 S.W.3d at 685. The court then held that an
offense barred under section 12.45 is not a conviction; it also cast serious
doubt on whether such an offense is, as appellant asserts, part of a defendant’s
“prior criminal record”:
“Prior criminal record” did then and does now include matters other than “final convictions.” Even if § 12.45 offenses were part of a defendant’s “prior criminal record,” that fact would not make them “final convictions” for the purpose of Rule 609. Moreover, this Court’s comment in Whalon with respect to the § 12.45 offense being part of the prior criminal record was mere dicta that was phrased not even as a positive statement, but as a question.
Finally, we observe that the § 12.45 procedure can be implemented only if the State consents. If the State wishes to have the use of that extraneous offense as a prior conviction, it has another option: it can seek a conviction on the extraneous offense.
Id. at 686 (footnotes omitted); see Whalon v. State, 725 S.W.2d 181, 195
(Tex. Crim. App. 1986); see also Tex. Code Crim. Proc. Ann. art. 37.07
§ 3(a)(1) (Vernon Supp. 2008) (allowing evidence of a defendant’s “prior
criminal record” to be admitted at sentencing).
16 We agree with and are bound by the Court of Criminal Appeal’s recent
implication that offenses barred under section 12.45 are neither convictions nor
part of a defendant’s prior criminal record. See Lopez, 253 S.W.3d at 686.
We thus hold that such offenses have no sufficient collateral consequences to
comprise “confinement” or “restraint,” that such offenses can be classified
neither as an “accusation” nor a “conviction,” and that we are consequently
without jurisdiction to consider habeas applications related to such barred
offenses. See Tex. Code Crim. Proc. Ann. art. 11.09; Schmidt, 109 S.W.3d
at 483; Dahesh, 51 S.W.3d at 303. Therefore, we dismiss the two appeals in
which prosecution was barred pursuant to section 12.45, cause numbers 2-08-
366-CR and 2-08-367-CR, for want of jurisdiction. See Tex. R. App. P. 43.2(f).
We will proceed to consider the merits of the habeas appeals of the remaining
four cases.
Standard of Review
Absent a clear abuse of discretion, we must affirm the trial court’s
decision on whether to grant the relief requested in a habeas corpus application.
Ex parte Bruce, 112 S.W.3d 635, 639 (Tex. App.—Fort Worth 2003, pet.
dism’d). In reviewing the trial court’s decision, we view the evidence in the
light most favorable to the ruling and accord great deference to the trial court’s
findings and conclusions. Id.; see Ex parte Amezquita, 223 S.W.3d 363, 367
17 (Tex. Crim. App. 2006); Ex parte Okere, 56 S.W.3d 846, 854 (Tex. App.—Fort
Worth 2001, pet. ref’d) (explaining that in “reviewing a trial judge’s decision to
grant or deny relief on a writ of habeas corpus, we afford almost total
deference to a trial judge’s determination of the historical facts supported by
the record”). Such deference must be given even when all of the evidence is
submitted by affidavits. See Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex.
Crim. App. 2006); Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002)
(holding that in reviewing the denial of a motion to suppress evidence, the
appellate court “correctly employed a deferential standard of review of the trial
court’s resolution of the historical facts from conflicting affidavits”). In a writ
of habeas corpus hearing, the burden is on the applicant to prove his factual
allegations by a preponderance of the evidence and to demonstrate that an error
contributed to his conviction or punishment. Ex parte Williams, 65 S.W.3d
656, 658 (Tex. Crim. App. 2001); Bruce, 112 S.W.3d at 639.
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
18 2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In evaluating
the effectiveness of counsel under the first prong, we look to the totality of the
representation and the particular circumstances of each case. Thompson, 9
S.W.3d at 813. The issue is whether counsel’s assistance was reasonable
under all the circumstances and prevailing professional norms at the time of the
alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range
of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d
at 63.
To overcome the presumption of reasonable professional assistance, “any
allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting
Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to
simply infer ineffective assistance based upon unclear portions of the record.
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair and reliable trial.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant
19 must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. The ultimate focus of
our inquiry must be on the fundamental fairness of the proceeding in which the
result is being challenged. Id. at 697, 104 S. Ct. at 2070. To prevail in a
habeas proceeding, the applicant must establish both elements of the Strickland
test by a preponderance of the evidence. See Okere, 56 S.W.3d at 856.
No contest pleas must be made freely and voluntarily. See Tex. Code
Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2008). A defendant’s plea is not
voluntary when it results from ineffective assistance of counsel. Ex parte
Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). The test for determining
the validity of a plea is whether the plea represents a voluntary and intelligent
choice among alternative courses of action open to the defendant. Hill v.
Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985). As explained in
Kniatt v. State, a plea,
to be consistent with due process of law, must be entered knowingly, intelligently, and voluntarily. To be “voluntary,” a guilty plea must be the expression of the defendant’s own free will and must not be induced by threats, misrepresentations, or improper promises. A defendant’s sworn representation that his guilty plea is voluntary “constitute[s] a formidable barrier in any subsequent collateral proceedings.” An applicant seeking habeas corpus relief
20 on the basis of an involuntary guilty plea must prove his claim by a preponderance of the evidence. An applicant’s delay in seeking habeas corpus relief may prejudice the credibility of his claim.
206 S.W.3d 657, 664 (Tex. Crim. App.) (citations omitted), cert. denied, 549
U.S. 1052 (2006). When a defendant challenges the voluntariness of a plea
based on the advice of counsel, alleging that counsel was ineffective, the
defendant has the burden to show that (1) counsel’s performance fell below a
reasonable standard of competence, and (2) the defendant would, with a
reasonable probability, have pled not guilty and insisted on going to trial had
counsel not committed the alleged errors. Ex parte Moody, 991 S.W.2d 856,
857–58 (Tex. Crim. App. 1999).
Analysis
Appellant contends that the evidence attached to his habeas applications,
as related above, demonstrates that Piel’s assistance in advising him to enter
his no contest pleas was so deficient that it was legally ineffective and that his
pleas were therefore involuntary. Specifically, appellant asserts that he
persistently informed Piel that he wanted to plead not guilty to each of his
charges, informed him of his desire for a jury trial, informed him of his desire
to attempt to suppress evidence, instructed him not to accept fees from his
father, and eventually informed him that he did not want his representation, but
that Piel induced him to enter pleas of no contest (through a lack of other
21 options caused by Piel’s alleged inaction in preparing a legal or factual defense
and through Piel’s preference of appellant’s father’s desires over appellant’s
own desires).
If these allegations were true, appellant’s claims would likely have merit.
However, Piel’s affidavit provided the trial court with evidence either rebutting
or explaining each of these allegations. Particularly, Piel’s affidavit furnished
the trial court a basis to conclude that though appellant vacillated on whether
he wanted Piel’s representation and though he wrote a letter expressing his
desire to fire Piel shortly before entering his plea bargain, appellant accepted
Piel’s representation and carefully listened to and agreed with Piel’s strategic
reasoning 14 at the time he entered his pleas, thus making an intelligent choice
among the alternative courses of action.15 Hill, 474 U.S. at 56, 106 S. Ct. at
14 … Piel opined, “[appellant] would not have been a believable witness, and based on the police reports, my experience, and [appellant’s] demeanor, I believed that [appellant] would have to testify to make the points that he would want to make in a trial.” Piel further explained, “[appellant’s] testimony, in my experience, would have been an unmitigated disaster. I knew under cross- examination that his temper would flair up and his manic, crazed personality would be revealed to the jury. We would lose the trial badly.” 15 … Piel stated, “I had numerous discussions with [appellant] about his pleas, he knew what he was doing, I never pressured him, and he chose to plead the way he pleaded.” Piel further related, “I always bluntly shared my beliefs with [appellant] and, in the end, we agreed as to how he should plead.” Finally, Piel explained, “I have no doubt that, at some point, [appellant] told me that he wanted to go to trial,” but “when he would calm down and we would discuss negotiating his cases with the DA for the best deal he could get,
22 369. Piel’s affidavit also provided the trial court with a reason to determine
that, contrary to appellant’s affidavit and his father’s sworn statement,
appellant approved of (1) Piel’s substitution for Jacoby on appellant’s
subsequent felony case, (2) Piel’s discussion of cases with and acceptance of
payment from appellant’s father, and (3) the preparation of the power of
attorney.
When faced with conflicting evidence 16 about the circumstances affecting
Piel’s representation and the voluntariness of appellant’s pleas, the trial court
was required to resolve the conflict and make a judgment call. See Tex. Code
Crim. Proc. Ann. art. 11.072 § 6(a) (requiring the trial court to make a decision
on a habeas application in a community supervision case within sixty days of
the state filing its answer); Hall v. State, 160 S.W.3d 24, 40 (Tex. Crim. App.
[appellant] and I always reached agreement on a course of action. I never made him do anything.” 16 … While Piel’s affidavit conflicts with appellant’s affidavit and his father’s statement, it does not in large part necessarily conflict with Jacoby’s statement. Jacoby’s statement essentially conveyed that appellant was unhappy with Piel and wanted to contest his charges and that Piel substituted for him on appellant’s fraudulent use of identifying information case. Piel’s affidavit concedes that appellant was often unhappy with him, that at some point, appellant also told him that he wanted to contest his charges, and that he replaced Jacoby, albeit with appellant’s consent. Also, Piel’s expression that appellant weighed his strategic options and chose to enter his pleas without pressure impliedly rebuts appellant’s contention that he entered his pleas because of threats that his father would disinherit him.
23 2004) (explaining that where there was conflicting evidence regarding mental
retardation, the “trial judge, who presided over the trial and the habeas
proceedings, was in the best position to evaluate the conflicting evidence”).
In doing so, it found Piel’s affidavit to be more credible than those submitted
by appellant; because we cannot conclude that the trial court abused its
discretion in this regard, we will defer to its determination. See Amezquita,
223 S.W.3d at 367; Bruce, 112 S.W.3d at 639; Okere, 56 S.W.3d at 854.
Further, along with Piel’s affidavit, the trial court could have relied on
other documents to discredit the allegations contained in appellant’s
applications. First, appellant affirmed in writing that he made his pleas “freely
and voluntarily” and that he understood the “consequences of [his] plea[s].”
As noted above, such statements comprise a formidable barrier to a subsequent
challenge regarding the voluntariness of the pleas. See Kniatt, 206 S.W.3d at
664; Labib v. State, 239 S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (explaining that an “accused who attests when he enters his
plea . . . that he understands the nature of his plea and that it is voluntary has
a heavy burden . . . to show that his plea was involuntary”). Next, appellant
was properly admonished in accordance with article 26.13 of the code of
criminal procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a). Receiving
such admonishments created a prima facie showing that appellant’s plea was
24 entered voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.
1998); Jackson v. State, 139 S.W.3d 7, 14 (Tex. App.—Fort Worth 2004, pet.
ref’d). Finally, documents attached to the findings of fact and conclusions of
law adopted by the court indicated that in 2005, while entering another plea
bargain in another case with Piel’s assistance, appellant affirmed that he was
“satisfied with [Piel’s] services.”
For all of these reasons, viewing the evidence in the light most favorable
to the trial court’s ruling and according the trial court great deference, we hold
that the trial court did not abuse its discretion by denying appellant’s habeas
applications, by ruling that Piel’s representation was not legally deficient, or by
concluding that appellant’s pleas were voluntary. See Bruce, 112 S.W.3d at
639.
Conclusion
Having determined that we lack jurisdiction to consider the appeals in
cause numbers 2-08-366-CR and 2-08-367-CR, we dismiss those appeals.
25 Having also decided that the trial court did not abuse its discretion by denying
appellant’s applications for writs of habeas corpus in the remaining cases, we
affirm the trial court’s orders in those cases.
TERRIE LIVINGSTON JUSTICE
PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
PUBLISH
DELIVERED: February 19, 2009