In Re Parte Klem

269 S.W.3d 711, 2008 Tex. App. LEXIS 8043, 2008 WL 4660561
CourtCourt of Appeals of Texas
DecidedOctober 22, 2008
Docket09-08-212 CR, 09-08-213 CR, 09-08-214 CR
StatusPublished
Cited by28 cases

This text of 269 S.W.3d 711 (In Re Parte Klem) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Parte Klem, 269 S.W.3d 711, 2008 Tex. App. LEXIS 8043, 2008 WL 4660561 (Tex. Ct. App. 2008).

Opinion

OPINION

CHARLES KREGER, Justice.

These are accelerated appeals from the trial court’s denial of the appellant Jeffrey A. Klem’s (Klem) applications for writ of habeas corpus. Klem contends his guilty pleas were unknowing and involuntary because they were induced by promises and representations made to him by his attorneys regarding the disposition of two separate but similar cases pending in Harris County, Texas. We affirm the trial court’s ruling.

FACTUAL BACKGROUND

In December of 2006 Klem was indicted on three counts of Indecency with a Child in Jefferson County, Texas. In July of 2007, Klem was indicted on two counts of Indecency with a Child in Harris County, Texas. Pursuant to a plea bargain agreement on August 14, 2007, Klem pled guilty in all three Jefferson County cases to Injury to a Child, in violation of section 22.04(a)(2) of the Texas Penal Code, and received ten years deferred adjudication along with the requirements that he comply with certain community supervision restrictions. See Tex. Penal Code Ann. § 22.04(a)(2) (Vernon Supp.2008). In exchange for his guilty pleas, the charges of Indecency with a Child were dismissed.

Upon request by the State at the plea hearings, Klem was orally admonished by *713 the trial court as to the specific enumerated terms and conditions of probation that the State was requiring as part of the plea agreement and Klem verbally responded on the record that he understood each of the terms and conditions and verbally accepted them. Thereafter, Klem pled guilty in each cause and in each, he was given extensive oral and written admonishments by the trial court to determine whether his plea was made knowingly and voluntarily in accordance with article 26.13 of the Texas Code of Criminal Procedure. See Tex.Code CRiM. Pkoc. Ann. art. 26.13 (Vernon Supp.2008). As part of the oral admonishments by the trial court, the judge asked Klem if he had read the information and discussed it fully with his attorneys and asked, “You swear under oath you’ve committed each and every element alleged in the information?” Thereafter, Klem responded, “[Y]es, sir.”

After Klem entered his pleas of guilty with respect to each of the three charges, and the Court found that each guilty plea was made knowingly and voluntarily, the Court asked again:

THE COURT: Mr. Klem, I’m going to ask you: Did you understand everything that happened today?
THE DEFENDANT: Yes, sir.
THE COURT: You are on deferred or unadjudicated probation for three separate offenses. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Is there anything about any of the statements that were made, the rights you have given up, the issues of law that we have discussed that you need clarification or further discussion over?
THE DEFENDANT: No, sir.
THE COURT: All right. You insist on pleading guilty to each of these three cases today?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Anything further from either of the parties at this time on the record?
DEFENSE COUNSEL: Not from the defense, Your Honor.

Significantly, while Klem was represented at the Jefferson County plea hearings by both his Jefferson County counsel and Harris County counsel, no condition of the two pending Harris County cases was ever mentioned to the trial judge or otherwise discussed during the Jefferson County plea hearings other than in the written plea agreement. The only plea agreement term relating to the Harris County cases expressly provided that the Jefferson County sentences would run concurrently with each other and with those which may be entered in the Harris County cases.

Two days after Klem pled guilty in Jefferson County, Klem’s Harris County counsel and the Harris County prosecutor approached the trial judge about making Klem the same offer in Harris County that he had been given in Jefferson County. At that point in time, the judge stated she would not accept such a plea agreement. Immediately following the judge’s rejection of the proposed plea agreement, the Harris County prosecutor met with Klem’s attorneys, all of whom were present at the docket call, to discuss the disposition of the Harris County cases. According to the attorneys, the prosecutor stated she would dismiss the Harris County cases, but that she would need to meet with the complainants first. Some time later, the prosecutor refused to dismiss the Harris County charges. The record does not clearly show when Klem or his attorneys first learned that the Harris County cases would not be dismissed and the testimony is conflicting.

On January 24, 2008, Klem filed applications for writ of habeas corpus claiming his *714 pleas in Jefferson County were unknowing and involuntary because he was

(1) induced to plead guilty based on [the Harris County prosecutor’s] representation that if Klem pled in the [Jefferson County] cases, he would get the same deal in Harris County or the cases would be dismissed, which never occurred, in violation of the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 13 and 19 of the Texas Constitution as well as Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and its progeny], and]
(2) induced to plead guilty based on his lawyers’ representations, regardless of what [the Harris County prosecutor] in fact said, in violation of the effective assistance of counsel clauses of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Texas Constitution as well as Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny.

After a hearing, the trial court denied Klem’s applications for writ of habeas corpus and these appeals ensued. We note that on appeal, Klem is contending his pleas of guilty to the Jefferson County charges were not knowing or voluntary because they were induced by misrepresentations by his counsel — that regardless of any agreements his attorneys actually had with prosecutors, he was induced to plead guilty by his lawyers’ promises that, if he pleaded guilty in Jefferson County, he would receive the same outcome in similar cases pending in Harris County or the Harris County cases would be dismissed. 1

On April 4 and 23, 2008, an evidentiary hearing was held in Jefferson County on Klem’s writ of habeas corpus applications. Both the Harris County and Jefferson County prosecutors testified at the eviden-tiary hearing.

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Bluebook (online)
269 S.W.3d 711, 2008 Tex. App. LEXIS 8043, 2008 WL 4660561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-parte-klem-texapp-2008.