Ex Parte Karlson, 2-08-366-CR.

• Decision Date: 19 February 2009
• Docket Number: No. 2-08-370-CR.,No. 2-08-371-CR.,No. 2-08-369-CR.,No. 2-08-368-CR.,No. 2-08-366-CR.,No. 2-08-367-CR.,2-08-366-CR.,2-08-367-CR.,2-08-368-CR.,2-08-369-CR.,2-08-370-CR.,2-08-371-CR.
• Citation: 282 S.W.3d 118
• Parties: Ex Parte Jeffrey Holliday KARLSON.
• Court: Texas Court of Appeals

282 S.W.3d 118

Ex Parte Jeffrey Holliday KARLSON.

No. 2-08-366-CR.

No. 2-08-367-CR.

No. 2-08-368-CR.

No. 2-08-369-CR.

No. 2-08-370-CR.

No. 2-08-371-CR.

Court of Appeals of Texas, Fort Worth.

February 19, 2009.

Donald R. Scoggins, Dallas, TX, for Appellant.

John A. Stride, and Catherine Luft, Asst. Criminal District Attorneys, Denton County, TX, for State.

Panel: LIVINGSTON, GARDNER, and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

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.

In September 2004, while in custody, appellant submitted letters to the Denton county and district clerks⁵ 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 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.

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 nonprosecution 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 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 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 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."

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.

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...