Ex parte Gaither

• Decision Date: 12 December 2012
• Docket Number: No. AP–76,896.,AP–76,896.
• Parties: Ex parte Michael Wayne GAITHER, Applicant.
• Court: Texas Court of Criminal Appeals

387 S.W.3d 643

Ex parte Michael Wayne GAITHER, Applicant.

No. AP–76,896.

Court of Criminal Appeals of Texas.

Dec. 12, 2012.

[387 S.W.3d 644]

Amos W. Keith, III, Sweetwater, for Michael Wayne Gaither.

Dana W. Cooley, Asst. District Atty., Snyder, Lisa C. McMinn, State's Attorney, Austin, TX, for State.

OPINION
COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and ALCALA, JJ., joined.

In July 2011, applicant pled guilty to one count each of burglary and engaging in organized criminal activity and was sentenced to eighteen months' imprisonment for the burglary and ten years' imprisonment for engaging in organized criminal

[387 S.W.3d 645]

activity.¹ The sentences were ordered to run concurrent with each other, but consecutive to (stacked atop) applicant's sentence for a 2006 burglary.² Under the terms of the plea agreement, applicant waived his appellate rights.

On March 28, 2012, applicant filed an 11.07 application for a writ of habeas corpus, alleging ineffective assistance of trial counsel. Specifically, applicant claimed that counsel was constitutionally deficient for giving him factually incorrect information about his sentences and for failing to object to the imposition of consecutive sentences.

Applicant's first claim asserted that trial counsel “coerced” him into accepting the plea bargain by telling him that “his sentence would, in fact, run concurrent with his prior 10 year sentence.” ³ Applicant stated, “Had [trial counsel] not lied to and coerced applicant of this erroneous information. Applicant would [have] insisted on going to trial.” ⁴

Applicant's second ground, closely related to his first, was based on counsel's failure to object to the imposition of consecutive sentences. Applicant claims his own “failure to object was unknowing” because “[p]revious to and during the sentencing applicant's counsel erroneously advised applicant that he would not receive a consecutive sentence.” ⁵ In sum, applicant claimed he was unaware that his sentences would be stacked because counsel did not inform him of that possibility.

Before sending us applicant's habeas materials, the trial judge entered findings of fact and cited portions of the record that showed that applicant understood the plea bargain that he accepted and was satisfied with his attorney's assistance:

Judge: .... Mr. Gaither, are you satisfied with the legal representation your attorney provided to you in these matters?

A: Yes, sir.

Judge: And I ask that question not because I think you wouldn't be or shouldn't be satisfied, but instead I ask that question just so you would have an opportunity to let me know if you were not satisfied. If you thought that there was some deficiency or ineffectiveness in your lawyer's work, you could tell me now since I give you that chance, and I could then work to get those problems resolved.

I would also tell you that by giving you the chance now to let me know if there's a claim of ineffectiveness or deficiency on the part of the lawyer's work, that quite frankly would diminish your chances to successfully complain at some later date that your lawyer didn't do a good job....

A: Yes, sir.

Judge: And understanding that are you still telling me you're satisfied with the lawyer's representation in these cases?

A: Yes, sir.

Immediately after this questioning, the trial judge reviewed the terms of the plea offer:

[387 S.W.3d 646]

Judge: Mr. Gaither, the plea agreements that are in front of me ... indicate you will plead guilty.... In Cause No. 9796, the state jail felony case, the plea agreement says you will be sentenced to 18 months in state jail.... It says that the sentence—the state jail sentence will begin to run when the sentence in 8777, a conviction out of this Court entered some previous—at some previous date ... in 2006 [ceases to operate].

... In Cause No. 9797 ... [i]t says you will be sentenced to serve 10 years in the Texas Department of Criminal Justice ... It says this cause also will not begin to run until you have finished the judgment and—or completed the judgment and sentence in Cause No. 8777, the 2006 conviction out of this Court.

... [Y]our sentences in 9796 and 9797 will run concurrent with one another but stacked on that 2006 sentence.

All of that is my understanding of what the plea bargain agreement is and what it entails. Have I stated the plea agreement the way you understand it to exist?

A: Yes, sir.

Judge: Are you asking me to approve this plea agreement, or these plea agreements?

A: Yes, sir.⁶

In his habeas findings, the trial judge concluded that counsel's performance was not deficient because “the record shows that trial counsel conveyed the plea bargain agreement accurately and Applicant knew when he entered a guilty plea that the sentence would be consecutive to the sentence in Cause Number 8777.” ⁷ The trial judge also found that trial counsel was not deficient for failing to make an objection because any objection would have been futile. Ultimately, the trial judge concluded that the application was frivolous and recommended that we deny relief. The trial judge also suggested that applicant may have abused the writ by being dishonest in his writ application.⁸

After reviewing the trial judge's findings, we agreed that applicant presented

[387 S.W.3d 647]

no meritorious issues. We also shared the judge's concern that applicant had abused the writ process, so we remanded the case and instructed the judge to make additional findings of fact to help us determine if applicant's statements were indeed perjurious.

The trial judge then held an evidentiary hearing at which trial counsel testified that he explained the State's plea offer to applicant. Applicant then initialed the written offer form to indicate his understanding and acceptance of its terms.⁹ Counsel detailed some of his many plea discussions with applicant, including numerous instances in which counsel asked applicant if he had any questions or needed clarification. Counsel testified that he would not have gone forward if applicant had not understood the offer and that he always uses the term “stacked” when referring to consecutive sentences because the terms “consecutive” and “concurrent” are “confusing enough to lawyers, much less clients.” Counsel further testified that he “never advised [applicant] that...