State's Answer
COMES NOW the State of Texas, by and through the District Attorney for the 27th Judicial District of Texas, and denies generally the allegations of the Applicant's Petition for post-conviction Writ of Habeas Corpus relief, and opposes any request for bond pursuant thereto. The State would show the Court that there is no necessity for a fact finding hearing as there is ample evidence in the record for the Court to rule on the relief sought. Prayer
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the .Court enter Findings of Fact and Conclusions of Law, and recommend denial of the relief . sought, sending the Applicant hence without day.
Respectfully submitted,
HENRY GARZA DISTRICT ATTORNEY 27TH JUDICIAL DISTRIC
Assistant District Attorney 27th Judicial District P. 0. Box 540 Belton, TX 76513 (254) 933-5215 (254) 933-5704 [FAX]
IIIIII I~ lllllllllll Certificate of Service
I, the undersigned, do hereby certify that a true and correct copy of the State's
Answer was mailed to the Applicant, Herman Lee Kindred, TDCJ# 671207, at the
McConnell Unit, 3001 South Emily Drive, Beeville, TX 78102, by certified mail, return
receipt requested, postage pre-paid, on this the _ __._I_Z~_Y!l_.- __ day of March, 2014. Certificate of Service
I, the undersigned, do hereby certify that true and correct copies of the State's
Motion to Enter Proposed Findings of Fact and Conclusions of Law, and the State's
proposed Findings of Fact and Conclusions of Law, were mailed to the Applicant, Herman
Lee Kindred, TDCJ# 671207, at the McConnell Unit, 3001 South Emily Drive, Beeville,
TX 78102, by certified mail, return receipt requested, postage pre-paid, on this the
_ ___._{_1_---=--rfl _ _ day of March, 2014. IIIIIIIJIIII liiiiJIIII !1111 !1111111 No. 30,311-A
EX PARTE * IN THE 264TH JUDICIAL * * DISTRICT COURT OF * HERMAN LEE KINDRED * BELL COUNTY, TEXAS
Findings of Fact and Conclusions of Law
Having considered the Applicant's Petition, the State's Answer, and the record in the
above numbered cause, this Court makes the following Findings of Fact and Conclusions of
Law:
I.
Findings of Fact
History of the Case
1. The Applicant is currently incarcerated in the Institutional Division of the Texas Department of Criminal Justice on other convictions, but on October 8, 1981 he was convicted in the instant case, Cause Number 30,311, of Burglary of a Habitation.
2. He pled guilt to the charge, and the trial court found him guilty and assessed his punishment at ten ( 10) years imprisonment, but suspended it and placed him on pro- bation for a period often (10) years. I
3. On May 4, 1982, the Applicant pled "true" to violating conditions of his probation, and the trial court found the violations true, and assessed his punishment at ten ( 10) years imprisonment.
4. On October 8, 1982, the Applicant was granted shock probation, and the remainder of his sentence was suspended, but on December 11, 1984, he again pled true to viola- ting his conditions, and the trial court found the violations true, revoked his proba- tion, and ordered that he serve the remainder of his ten (10) year sentence in prison.
11111111 IIIII 1111111 Herman Kindred- 30,311-A- Findings Page 2
5. The Applicant appealed his conviction, but it was dismissed at his request, 1 and the appellate court issued its Mandate on September 4, 1985.
6. This is the Applicant's first Petition for post-conviction Writ of Habeas Corpus relief in this case.
Allegations of the Applicant
7. In ground one, the Applicant alleges that he received ineffective assistance of counsel in his case.
8. In ground two, the Applicant alleges that his trial counsel was ineffective for failing to object to the admonishments given to him in his case because they were allegedly insufficient.
Necessity for an Evidentiary Hearing or Expansion of the Record
9. The Court finds that the existing record is sufficient to answer the allegations in the Applicant's Petition.
Grounds One & Two- Ineffective Assistance of Counsel
10. In ground one, the Court finds that the Applicant alleges that his trial counsel was ineffective because he did not properly investigate his case.
11. Specifically, the Court finds that he claims that: there were never any charges filed against him; he never broken into anyone's home; the homeowner never approached or talked to the police, or filed a complaint; and, the police never interviewed the victim about the case. See Applicant's Petition, p. 6.
12. The Court finds that the Applicant bases his allegations on an "affidavit" dated January 29, 2014, that he attaches to his Petition in which he describes a chance meeting allegedly with the victim2 in this case which occurred in 2012 at a Family Dollar Store in Temple, Texas.
1 See Kindred v. State, No. 03-85-00020-CR (Tex.App.- Austin, delivered September 4, 1985) (not designated for publication) 2 The affidavit does not name the person with whom the Applicant spoke at this meeting. Herman Kindred- 30,311-A- Findings Page 3
13. In ground two, the Court finds that the Applicant alleges that defense counsel was "totally ineffective" for not objecting to the admonishments given to him by the trial court in the case.
14. According to the Applicant, his attorney should have objected to the trial court's failure to admonish him about the direct and collateral consequences of his plea. See Applicant's Petition, pp. I O-Il.
The Applicant's Case
15. The record reflects that on August I, 1981, a Complaint charging the Applicant with Burglary of a Habitation was issued by the Bell County District Attorney's Office, and the Court finds that he was subsequently arrested for the charge, because he posteld a $2,000.00 commercial bond dated August 3, 1981. See Complaint & Bond tiled 8-5-81.
16. The record further reflects that the Applicant was indicted by the Bell County Grand Jury on September 23, 1981, for the offense of Burglary of a Habitation. See Indictment.
17. On October 8, 1981, the record reflects that the Applicant, who had retained attorney Stephen E. Blythe to represent him, waived a jury trial, judicially confessed to the allegations in the indictment, and entered into a plea agreement with the State for ten (10) years probation in exchange for his plea of guilty. See Waiver of Jury, Judicial Confession, & Disclosure of Plea Recommendation.
18. Prior to the entry of his pleas of guilty/ the record reflects that the following dialogue occurred between the Applicant and the trial court:
"BY THE COURT:
"Q. Mr. Kindred, how old are you?
3 The Applicant plead guilty in a joint proceeding to Burglary in the instant case and, Forgery by Passing Cause Number 30,312. Herman Kindred- 30,311-A- Findings Page 4
"A. Seventeen.
"Q. How far did you go in school?
"A. I'm in the twelfth grade right now.
"Q. Have you ever been considered to be mentally ill, insane, incompetent or crazy?
"A. No, sir.
"Q. Are under any disability by reason of intoxication or impairment that would prevent you from understand- ing what is going on here?
"Q. Now, you've talked to Mr. Blythe, your retained attorney, and he's told you about your rights under the law of the State of Texas and the Constitution of the United States?
"A. Yes, sir.
"Q. And he's also told you, I'm sure, after he has inves- tigated both of these cases, any defenses that you might have at law; is that right?
"A. Yes~,_sir. _ _ _ _ _ _ _ _ _ _ _ _ __:___ _ _ _ _ _ _ _ _ _ _ __
"Q. And you are satisfied and wish to proceed and try both of these cases at one time rather than having two sepa- rate trials, like you're entitled to?
"A. Yes, sir. Herman Kindred- 30,311-A- Findings Page 5
"Q. You understand, also, you are entitled to have a jury in each case, have the jury detennine guilt or innocence and assess punishment, if any, and you have waived that and agreed to try the cases before the Court?
"A. y es, sir. .
"Q. You've also agreed to waive the privilege against self- incrimination and to sign a written judicial confession called a stipulation which you are not required to do and can't be compelled to do, but which you have voluntarily given, and if these stipulations are admit- .ted into the record in each of these cases, your guilt would have been established beyond as reasonable doubt and you appearing to be sane, the court-will find you guilt[y] and assess a punishment in each case as required by law. Do you understand that?
"Q. Now, in 30,311 you're charged with on or about the first of August, I 981, in Bell County, Texas then and there intentionally and knowingly entered a habitation.
"Q. A residence without the effective consent oflda May Foster. ?
"Q. The owner, and that you therein attempted to commit and committed theft; is that right?
"Q. To that charge now do you plead, guilty or not guilty?
,_ -
}.'. '. ~ .. ', Herman Kindred- 30,311-A- Findings Page 6
"A. Guilty.
"Q. Now, in [30]312 you're charged with on or about the 24th of August, 1981 in Bell County, Texas with the intent to defraud and harm another, passed and transferred to Frank Vanecek down at Kings Saver on Adams Avenue at Temple a check in the amount of twenty-five dollars drawn on J.E. Winston's account on the Temple National Bank on J.E. Winston's account and it's alleged that you passed it, knowing that it was forged and that it purported to be a check. "Now, to that charge now do you plead, guilty or not guilty?
"A. Guilty (RR-II, pp. 2-5-)."
19. The record reflects that the Applicant then told the trial court that he was pleading guilty of his own free will, and not because of any promises, threats, fear, or false hope of a pardon, and that he understood that the burglary charge carried with it a punishment range of five to 99 years, or life imprisonment and a $10,000 fine, and the forgery charge had a punishment range of two to 10 years imprisonment and $5,000 fine, and that both charges would be final convictions if the recommendations were accepted (RR-II, pp. 5-7).
20. Then, the record reflects that the following dialog occurred between the trial court and the Applicant:
"THE COURT: All right. Your plea in each case is accepted and now in each case I have not only the waiver but a stipulation signed by you and joined therein by your attorney and the State in which you have confessed to each and every element as alleged. "What did you do in Ida May Foster's house, did you go in there and take something?
"THE DEFENDANT: No, sir. A friend of mine, he always works on my car, and I owed him something so I was nice enough to take him by there. He went in and got it. I was just outside the window. He reached it to me. Hennan Kindred- 30,311-A- Findings Page 7
"THE COURT: Do you understand under the Law of Parties in this state that you are liable even though you just sat outside, you were nice enough to help him commit a burglary?
"THE DEFENDANT: Yes, sir.
"THE COURT: Where is he?
"THE DEFENDANT: He's at home. He's on probation.
"MR. KINARD: Could we have just a moment, Your Honor?
"THE COURT: Yes, sir.
"(Counsel conferred in an off the record discussion.)
"THE COURT: Who is your friend?
"MR. KINARD: Just one second. Your Honor.
"THE DEFENDANT: John Mayo.
"THE COURT: Did you know John was going into the house?
·"THE DEFENDANT: Sir?
"THE DEFENDANT: No, I didn't until he got there. Until he got there. There wasn't nobody home. Knocked on the door, nobody answered, so - - Herman Kindred- 30,311-A- Findings Page 8
"THE COURT: And you saw him go in the house and come out with something?
"THE DEFENDANT: He just went in the house and he just reached it through the window to me.
"THE COURT: He reached through the window and handed it out to you; what did he hand out?
"THE DEFENDANT: A stereo.
"THE COURT: You knew it wasn't his, didn't you?
"THE DEFENDANT: Yes, sir, I did.
"THE COURT: You knew it belonged to somebody else, didn't you?
"THE COURT: You knew that you didn't have their consent, didn't you?
"THE DEFENDANT: No, sir.
"THE COURT: Do you realize that's burglary?
"THE COURT: That's life.
"THE COURT: What about the check; you did that, too? '-· Herman Kindred- 30,311-A- Findings Page 9
"THE COURT: You knew it was forged?
"THE COURT: Why did you do it?
"THE DEFENDANT: I swear to God I don't know.
"THE COURT: Well, why did you do the other?
"THE DEFENDANT: I just owed it, John, you know, something for working on my car. He just asked me to take him. Called me - -
"THE COURT: I know, but what did you get out of it?
"THE DEFENDANT: Jail. That's all (RR- II, pp. 7-11)."
21. The record reflects that the Applicant subsequently took the stand to disavow his earlier statement to the police, that he went into the house and took the stereo, clarifying that his friend John Mayo was the one who went into the house (RR-II, pp. 11-12).
22. The Court finds that implicit in the Applicant's claim of ineffective assistance in ground one, is a contention that there was "no evidence" to charge him with or con- vict him of a crime, and if his attorney had conducted a more thorough investigation of the facts of his case, he would have discovered as much.
23. However, the Court finds the Applicant's contentions unsupported by the record. Herman Kindred- 30,311-A- Findings Page 10
24. In his Petition, the Applicant states that he "never ever entered into nor broke into anyone[']s home," but he explained as much to the trial court at his plea of guilty hearing, and admitted that he did drive his accomplice to the residence and saw him enter the home, and exit with the victim's property, which, he told the trial court, he understood made him guilty of Burglary under the law of parties.
25. The Court finds that it is unclear what additional facts or "real facts" could have been gleaned by further investigation of the case by the Applicant's trial counsel.
26. The Court finds that in ground two, the Applicant alleges that his attorney was inef- fective for failing to object to his allegedly incomplete admonishment by the trial court.
27. The Court finds that before accepting his plea of guilty,' the trial court inquired about: the Applicant's competency; whether or not he had talked to his attorney about his case and been infonned of his rights and any defenses he might have had; whether he wanted to waive a jury trial; whether or not he wanted to waive his right to self-incri- mination; whether or not his plea was voluntary; whether or not he was aware of the punishment range; and whether or not he understood, that when the trial court ac- cepted his plea the conviction would be final.
28. The Court finds that to all these inquiries, the Applicant responded that he was aware and wanted to proceed with his plea of guilty.
29. The Court finds that the trial court, at the very least, substantially complied with the provisions of art. 26.13 of the Texas Code of Criminal Procedure, and there was no valid objection that counsel could have made. See Carter v. State, 487 S.W.2d 361, 362 (Tex.Crim.App. 1972) (defendant's complaint that he was not warned by counsel or trial court that conviction might later be used for enhancement was without merit where in prior case he was represented by counsel and was admonished of his rights).
30. Hence, the Court finds the Applicant's allegations that his trial counsel was inef- fective for failing to investigate his case or failing to object to allegedly incomplete admonishments are not supported by the record. Herman Kindred- 30,311-A- Findings Page 11
II.
Conclusions of Law
Based on the contentions raised by the Applicant, and a study of the applicable law
raised by the issues, this Court makes the following Conclusions of Law:
Grounds One & Two -Ineffective Assistance of Counsel
1. The Applicant fails to show that his trial counsel's performance fell below an objective standard of reasonableness, or that he committed unprofessional errors hindering his defense. See Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Ill.
Recommendation
Having considered the Applicant's Petition, the State's Answer, and the record, the
Court recommends that relief requested be denied.
IV.
Transmittal Order
The Clerk is directed to prepare a transcript to include copies of the following
documents from Cause Number 30,311: .
1. Indictment; 2. Complaint; 3. Bondfiled8-5-81; 4. Waiver of Jury/Agreement to Stipulate; 5. Disclosure of Plea Recommendations; 6. Judicial Confession; Herman Kindred- 30,311-A- Findings Page 12
7. Waiver of Motion for New Trial/Appeal filed 10-8-81; 8. Judgment of Conviction; 9. Order Suspending Imposition of Sentence; I 0. Motion to Revoke filed 2-3-82; 11. Stipulation for Hearing to Revoke Probation filed 4-28-82; 12. Order Revoking Probation; 13. Sentence; 14. Waiver of Motion for New Trial/Appeal filed 5-20-82; 15. Order Suspending Imposition of Sentence signed 10-8-82; 16. Motion to Revoke Probation filed 10-21-84; 17. Stipulation for Hearing to Revoke Probation; 18. Waiver ofMotion for New Trial/Appeal filed 12-11-84; 19. Order Revoking Probation signed 2-15-84; 20. Sentence; 21. Notice of Appeal; 22. Motion to Dismiss Appeals; 23. Opinion No. 3-85-020-CR; 24. Mandate; 25. Judge's Docket Sheet; 26. Reporter's Record Volumes II & III;
together with:
27. the Applicant's Petition; 28. the State's Answer; 29. the Motion to Enter Proposed Findings of Fact and Conclusions of Law; 30. the Findings of Fact and Conclusions of Law of the Court;
and transmit the same to the Court of Criminal Appeals in Austin, Texas. The Clerk is
further directed to serve a signed copy these Findings of Fact and Conclusions of Law to the
Applicant, Herman Lee Kindred, TDCJ # 671207, at the McConnell Unit, 3001 South Emily Herman Kindred- 30,311-A- Findings Page 13
Drive, Beeville, Texas 78102.
Signed this the ----~--day of March, 2014.
JUDGE PRESIDING 264TH DISTRICT COURT BELL COUNTY, TEXAS
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