WR-83,622-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/3/2015 9:24:11 PM Accepted 9/4/2015 8:41:57 AM ABEL ACOSTA NO. WR-83,622-01 CLERK
IN THE COURT OF CRIMINAL APPEALS RECEIVED COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS 9/4/2015 ABEL ACOSTA, CLERK
EX PARTE JODY LEE KIRKLIN, Applicant.
Application for Writ of Habeas Corpus from the 104th District Court of Taylor County, Texas Cause No. 18,068-B(1)
SUGGESTION FOR RECONSIDERATION ON COURT’S OWN MOTION
HEATHER M. LYTLE SBN: 24046487 202 Travis Street, Suite 300 Houston, Texas 77002 Tel. 713-204-7060 Fax 281-786-4539 heather@lytle-law.com
ATTORNEY FOR APPLICANT JODY LEE KIRKLIN NO. WR-83,622-01
§ EX PARTE § IN THE COURT OF JODY LEE KIRKLIN, § CRIMINAL APPEALS Applicant. § FOR THE STATE OF TEXAS §
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES Applicant, JODY LEE KIRKLIN, and urges this Court to
reconsider, on its own motion, its denial of habeas corpus relief, pursuant to Rule
79.2(d) of the Texas Rules of Appellate Procedure. To support this suggestion,
Applicant respectfully shows the Court the following:
I. Ground for Reconsideration
Applicant alleged facts that remain uncontroverted, and, if true, would warrant habeas corpus relief. Accordingly, the Court should, on its own motion, reconsider its denial of relief and either grant relief or order the trial court to conduct an evidentiary hearing.
II. Procedural History
Jody Kirklin was indicted for Online Solicitation of a Minor, under Section
33.021(c) of the Texas Penal Code, on April 14, 2011. On April 26, 2012, Mr.
Kirklin plead guilty, pursuant to a plea bargain agreement, and was sentenced to
ten (10) years’ incarceration in the Texas Department of Criminal Justice (TDCJ).
1 The Board of Pardons and Parole (TBPP) granted Mr. Kirklin parole in January
2014, and he is currently under the supervision of the Abilene Office of the
(TBPP).
Mr. Kirklin did not appeal his conviction or sentence. On June 12, 2015, he
filed an Application for Writ of Habeas Corpus with the District Clerk of Taylor
County, Texas, who directed that application to the 104 th District Court of Taylor
County. Mr. Kirklin alleged that he is illegally restrained by the Texas Board of
Pardons and Parole, the Abilene Office of the TBPP, and by his requirement to
register as a sex offender. He asserted the following three grounds for relief:
1. Mr, Kirklin’s plea was unknowing and involuntary because his retained attorney, Mr. Randol Stout improperly advised him that the range of punishment he would face upon conviction at trial was twenty-five years to life, when in fact the range of punishment is two to twenty years.
2. Mr. Kirklin received ineffective assistance of counsel because Mr. Stout wrongfully advised him of the possible range of punishment.
3. Mr. Kirklin received ineffective assistance of counsel because Mr. Stout failed to adequately research and investigate Mr. Kirklin’s case.
The trial court forwarded the application to this Court, and it was received
on July 20, 2015. On August 19, 2015, this Court denied the application without
written order. Pursuant to Rule 79.1 of the Texas Rules of Appellate Procedure,
Mr. Kirklin now files his Motion for Rehearing within fifteen (15) days of this
Court’s denial of his application. 2 III. Statement of Facts
As set out in the Application for Writ of Habeas Corpus, and the
accompanying affidavits of Mr. Kirklin and his sister, Susan Kirklin McGinn, the
following is a summary of the facts giving rise to Mr. Kirklin’s claims for relief:
In September 2010, Mr. Kirklin posted a personal ad on craigslist.org,
seeking to meet a woman for a sexual encounter. Mr. Kirklin at all times intended
to have a consensual encounter with an adult woman. Unbeknownst to Mr.
Kirklin, a police officer posing as a young girl responded to the ad, and the two
began an exchange of emails and text messages. The officer eventually stated that
“she” was a 13-year-old girl, but also sent a photo of a woman who appeared to be
in her thirties. Mr. Kirklin believed he was corresponding with an adult, and
arranged to meet her. However, when he arrived at the designated meeting place
on September 23, 2010, he was arrested and charged with Online Solicitation of a
Minor, pursuant to Section 33.021(c) of the Texas Penal Code.
After his indictment, Mr. Kirklin eventually retained Randol Stout in May
2011 to represent him in this matter. However, after Mr. Kirklin paid the initial
retainer, Mr. Stout did not personally speak to Mr. Kirklin again, either on the
phone or in person, until February 14, 2012.
3 On February 14, 2012 – only the second meeting between the two, and the
first where any details or substance of the case was discussed – Mr. Stout informed
Mr. Kirklin that the District Attorney offered ten years’ incarceration in plea
negotiations and would not make a lower offer. Mr. Stout also stated that he
personally talked to Judge Hamilton, and explained that Judge Hamilton said he
technically could not say that he would not give Mr. Kirklin probation in an open
plea, but that he would not. Mr. Stout said Mr. Kirklin would then be facing 25 to
99 years in prison because “they would enhance” him, and that he would spend the
rest of his life in jail if he refused the District Attorney’s offer of ten years.
However, Mr. Kirklin has no prior felonies with which to enhance the range of
punishment. Mr. Stout did not explain that the range of punishment of two to
twenty years could only be enhanced by prior felony convictions.
After the February 14, 2012 meeting, Mr. Stout did not speak to, or see, Mr.
Kirklin again until April 23, 2012 – only three days before his trial setting of April
26, 2012. At that meeting, Mr. Stout informed Mr. Kirklin that he had to make an
immediate decision regarding the ten-year plea offer. Mr. Stout informed Mr.
Kirklin that the District Attorney would not give probation, but failed to inform
Mr. Kirklin that he was eligible for a sentence of probation from either a judge or
the jury, even if he lost at trial. Mr. Stout further encouraged Mr. Kirklin to accept
the plea offer by persuading him that a conviction for this charge would not affect
4 his life. He failed to inform Mr. Kirklin that a consequence of the plea would be
sex offender registration for ten (10) years.
During the entirety of his representation of Mr. Kirklin, Mr. Stout never
discussed the facts of the investigation or arrest, and failed to pursue the possibility
of statutory, affirmative, or evidentiary defenses against Mr. Kirklin’s charge. For
nearly a year, Mr. Stout only met with, or spoke to, Mr. Kirklin three times. When
Mr. Kirklin requested Mr. Stout’s file to prepare for this application, the only
document in that file was the police report – there was zero evidence that Mr. Stout
had conducted any investigation or legal preparation whatsoever.
Mr. Kirklin ultimately accepted the plea agreement, and was sentenced on
April 26, 2012 to ten (10) years’ incarceration in TDCJ. In January 2014, Mr.
Kirklin was paroled and is currently under the supervision of the Abilene Office of
the Texas Board of Pardons and Parole. Mr. Kirklin is required to register as a sex
offender, and is restricted in the places he can attend, such as church or visiting
family members who have children.
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WR-83,622-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/3/2015 9:24:11 PM Accepted 9/4/2015 8:41:57 AM ABEL ACOSTA NO. WR-83,622-01 CLERK
IN THE COURT OF CRIMINAL APPEALS RECEIVED COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS 9/4/2015 ABEL ACOSTA, CLERK
EX PARTE JODY LEE KIRKLIN, Applicant.
Application for Writ of Habeas Corpus from the 104th District Court of Taylor County, Texas Cause No. 18,068-B(1)
SUGGESTION FOR RECONSIDERATION ON COURT’S OWN MOTION
HEATHER M. LYTLE SBN: 24046487 202 Travis Street, Suite 300 Houston, Texas 77002 Tel. 713-204-7060 Fax 281-786-4539 heather@lytle-law.com
ATTORNEY FOR APPLICANT JODY LEE KIRKLIN NO. WR-83,622-01
§ EX PARTE § IN THE COURT OF JODY LEE KIRKLIN, § CRIMINAL APPEALS Applicant. § FOR THE STATE OF TEXAS §
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES Applicant, JODY LEE KIRKLIN, and urges this Court to
reconsider, on its own motion, its denial of habeas corpus relief, pursuant to Rule
79.2(d) of the Texas Rules of Appellate Procedure. To support this suggestion,
Applicant respectfully shows the Court the following:
I. Ground for Reconsideration
Applicant alleged facts that remain uncontroverted, and, if true, would warrant habeas corpus relief. Accordingly, the Court should, on its own motion, reconsider its denial of relief and either grant relief or order the trial court to conduct an evidentiary hearing.
II. Procedural History
Jody Kirklin was indicted for Online Solicitation of a Minor, under Section
33.021(c) of the Texas Penal Code, on April 14, 2011. On April 26, 2012, Mr.
Kirklin plead guilty, pursuant to a plea bargain agreement, and was sentenced to
ten (10) years’ incarceration in the Texas Department of Criminal Justice (TDCJ).
1 The Board of Pardons and Parole (TBPP) granted Mr. Kirklin parole in January
2014, and he is currently under the supervision of the Abilene Office of the
(TBPP).
Mr. Kirklin did not appeal his conviction or sentence. On June 12, 2015, he
filed an Application for Writ of Habeas Corpus with the District Clerk of Taylor
County, Texas, who directed that application to the 104 th District Court of Taylor
County. Mr. Kirklin alleged that he is illegally restrained by the Texas Board of
Pardons and Parole, the Abilene Office of the TBPP, and by his requirement to
register as a sex offender. He asserted the following three grounds for relief:
1. Mr, Kirklin’s plea was unknowing and involuntary because his retained attorney, Mr. Randol Stout improperly advised him that the range of punishment he would face upon conviction at trial was twenty-five years to life, when in fact the range of punishment is two to twenty years.
2. Mr. Kirklin received ineffective assistance of counsel because Mr. Stout wrongfully advised him of the possible range of punishment.
3. Mr. Kirklin received ineffective assistance of counsel because Mr. Stout failed to adequately research and investigate Mr. Kirklin’s case.
The trial court forwarded the application to this Court, and it was received
on July 20, 2015. On August 19, 2015, this Court denied the application without
written order. Pursuant to Rule 79.1 of the Texas Rules of Appellate Procedure,
Mr. Kirklin now files his Motion for Rehearing within fifteen (15) days of this
Court’s denial of his application. 2 III. Statement of Facts
As set out in the Application for Writ of Habeas Corpus, and the
accompanying affidavits of Mr. Kirklin and his sister, Susan Kirklin McGinn, the
following is a summary of the facts giving rise to Mr. Kirklin’s claims for relief:
In September 2010, Mr. Kirklin posted a personal ad on craigslist.org,
seeking to meet a woman for a sexual encounter. Mr. Kirklin at all times intended
to have a consensual encounter with an adult woman. Unbeknownst to Mr.
Kirklin, a police officer posing as a young girl responded to the ad, and the two
began an exchange of emails and text messages. The officer eventually stated that
“she” was a 13-year-old girl, but also sent a photo of a woman who appeared to be
in her thirties. Mr. Kirklin believed he was corresponding with an adult, and
arranged to meet her. However, when he arrived at the designated meeting place
on September 23, 2010, he was arrested and charged with Online Solicitation of a
Minor, pursuant to Section 33.021(c) of the Texas Penal Code.
After his indictment, Mr. Kirklin eventually retained Randol Stout in May
2011 to represent him in this matter. However, after Mr. Kirklin paid the initial
retainer, Mr. Stout did not personally speak to Mr. Kirklin again, either on the
phone or in person, until February 14, 2012.
3 On February 14, 2012 – only the second meeting between the two, and the
first where any details or substance of the case was discussed – Mr. Stout informed
Mr. Kirklin that the District Attorney offered ten years’ incarceration in plea
negotiations and would not make a lower offer. Mr. Stout also stated that he
personally talked to Judge Hamilton, and explained that Judge Hamilton said he
technically could not say that he would not give Mr. Kirklin probation in an open
plea, but that he would not. Mr. Stout said Mr. Kirklin would then be facing 25 to
99 years in prison because “they would enhance” him, and that he would spend the
rest of his life in jail if he refused the District Attorney’s offer of ten years.
However, Mr. Kirklin has no prior felonies with which to enhance the range of
punishment. Mr. Stout did not explain that the range of punishment of two to
twenty years could only be enhanced by prior felony convictions.
After the February 14, 2012 meeting, Mr. Stout did not speak to, or see, Mr.
Kirklin again until April 23, 2012 – only three days before his trial setting of April
26, 2012. At that meeting, Mr. Stout informed Mr. Kirklin that he had to make an
immediate decision regarding the ten-year plea offer. Mr. Stout informed Mr.
Kirklin that the District Attorney would not give probation, but failed to inform
Mr. Kirklin that he was eligible for a sentence of probation from either a judge or
the jury, even if he lost at trial. Mr. Stout further encouraged Mr. Kirklin to accept
the plea offer by persuading him that a conviction for this charge would not affect
4 his life. He failed to inform Mr. Kirklin that a consequence of the plea would be
sex offender registration for ten (10) years.
During the entirety of his representation of Mr. Kirklin, Mr. Stout never
discussed the facts of the investigation or arrest, and failed to pursue the possibility
of statutory, affirmative, or evidentiary defenses against Mr. Kirklin’s charge. For
nearly a year, Mr. Stout only met with, or spoke to, Mr. Kirklin three times. When
Mr. Kirklin requested Mr. Stout’s file to prepare for this application, the only
document in that file was the police report – there was zero evidence that Mr. Stout
had conducted any investigation or legal preparation whatsoever.
Mr. Kirklin ultimately accepted the plea agreement, and was sentenced on
April 26, 2012 to ten (10) years’ incarceration in TDCJ. In January 2014, Mr.
Kirklin was paroled and is currently under the supervision of the Abilene Office of
the Texas Board of Pardons and Parole. Mr. Kirklin is required to register as a sex
offender, and is restricted in the places he can attend, such as church or visiting
family members who have children. He is unable to use the internet for any
purpose, and has been unable to get a job.
Furthermore, he is required to participate in sex offender treatment, which
includes counseling session and regular polygraph examinations. During both the
counseling sessions and polygraph examinations, Mr. Kirklin has been repeatedly
threatened that he will be sent back to prison unless he admits that he intended to
5 have sex with a child and that he has had other “victims.” He has suffered
enormous emotional stress due to these sessions and the nearly continuous threats
to send him to prison to complete his 10-year sentence.
IV. Argument and Authorities
This Court’s denial of Mr. Kirklin’s application is unwarranted, and should
be reconsidered, because Mr. Kirklin has alleged facts that, if true, may entitle him
to relief. Ex parte Patterson, 993 S.W.2d 114, 115 (Tex.Crim.App. 1999); TEX.
CODE CRIM. PROC. art. 11.07(3)(d). The facts recited above remain uncontested, at
least in that counsel for Mr. Kirklin received no response filed by the State or Mr.
Stout, as provided for under Article 11.07(3)(b).
In this case, the facts alleged by Mr. Kirklin support a finding that he
unknowingly and involuntary entered into a plea agreement, based on the
erroneous advice of his attorney, and that he received ineffective assistance of
counsel. This Court has held:
Counsel’s advice can provide assistance so ineffective that it renders the guilty plea involuntary. A guilty plea is not knowing or voluntary if made as a result of ineffective assistance of counsel. A defendant’s decision to plead guilty when based upon erroneous advice of counsel is not done knowingly and voluntarily.
Ex parte Moussazadeh, 361 S.W.3d 684, 688-89 (Tex.Crim.App. 2012) (internal
citations omitted). Whether Mr. Kirklin’s plea was voluntary depends on: (1)
whether Mr. Stout’s advice was within the range of competence demanded from
6 criminal defense attorneys; and (2) whether there is a reasonable probability that,
but for Mr. Stout’s error, Mr, Kirklin would not have pleaded guilty but would
have exercised his right to a jury trial. Ex parte Moody, 991 S.W.2d 856, 857-58
(Tex.Crim.App. 1999).
There can be no question that informing Mr. Kirklin that he faced a
punishment range of twenty-five years to life, should he go to trial, falls so far
outside the range of competent representation as to be more than egregious. Mr.
Kirklin was charged with a second-degree felony, which carries a range of
punishment of two to twenty years’ incarceration. According to Mr. Kirklin’s
affidavit, Mr. Stout told him that the State would “enhance” him and he would face
twenty-five years to life. However, Mr. Kirklin has no previous felony convictions
which could have served to enhance the punishment of a second-degree felony to
the first-degree range of punishment. Moreover, Mr. Kirklin was eligible for
probation from either a jury or the trial judge, pursuant to Article 42.12 of the
Texas Code of Criminal Procedure. The truth is that Mr. Kirklin was facing
possible punishment of probation, up to twenty years in prison – there is not a
circumstance which would have put Mr. Kirklin in danger of “spending the rest of
his life in prison,” as Mr. Stout warned.
Knowledge of the law – especially law that is long-settled, such as felony
punishment and enhancement – is the bare minimum that is expected of a criminal
7 defense attorney. In this case, it appears that Mr. Stout was completely unaware of
the applicable range of punishment, as well as probation eligibility and sentence
enhancement. Such a glaring inability to advise Mr. Kirklin of the most basic
aspects of the charge alleged against him cannot be considered effective assistance
of counsel, as provided for by the Sixth Amendment of the United States
Constitution, and Article I of the Texas Constitution.
This Court has previously granted habeas relief in similar circumstances.
Specifically, this Court granted relief in Ex parte Hall when the trial counsel failed
to know the law regarding the use of prior juvenile convictions for enhancement
purposes, and whose advice resulted in his client pleading “true” to a juvenile
enhancement allegation that was, in actuality, unavailable for enhancement
purposes. Ex parte Hall, No. AP-75,868 (Tex.Crim.App. March 19, 2008) (not
designated for publication).
Mr. Kirklin alleged in his affidavit that he would not have accepted the plea
agreement if he had been properly advised. Moreover, he would not have
knowingly agreed to the plea bargain if Mr. Stout had informed him of the severe
collateral consequences, such as ten years of sex offender registration.
V. Conclusion and Prayer
Given that Mr. Kirklin’s allegations went unanswered, this Court should
reconsider, on its own motion, Mr. Kirklin’s claims. At a minimum, the trial court
8 should be ordered to conduct an evidentiary hearing to determine whether Mr.
Kirklin is illegally restrained in his liberty.
WHEREFORE, PREMISES CONSIDERED, Mr. Kirklin respectfully
submits this Suggestion of Reconsideration on the Court’s Own Motion, requesting
that the Court reconsider, on its own initiative, the denial of Mr. Kirklin’s
application for writ of habeas corpus.
Respectfully submitted,
___/s/ Heather M. Lytle________ HEATHER M. LYTLE SBN: 24046487 202 Travis Street, Suite 300 Houston, Texas 77002 Tel. 713-204-7060 Fax 281-786-4539 heather@lytle-law.com
ATTORNEY FOR APPLICANT JODY LEE KIRKLIN
9 CERTIFICATE OF SERVICE
This is to certify that on the 3rd day of September, 2015, a true and correct
copy of the foregoing instrument was served upon the District Attorney of Taylor
County, Texas, via electronic service, email and/or facsimile.
_/s/ Heather M. Lytle________