Ex parte Shuflin, 50693

• Decision Date: 22 October 1975
• Docket Number: No. 50693,50693
• Citation: 528 S.W.2d 610
• Parties: Ex parte Henry Doyle SHUFLIN, Jr.
• Court: Texas Court of Criminal Appeals

Page 610

528 S.W.2d 610

Ex parte Henry Doyle SHUFLIN, Jr.

No. 50693.

Court of Criminal Appeals of Texas.

Oct. 22, 1975.

Will Gray, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

This is a post conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P.

On October 19, 1973, the petitioner, represented by retained counsel, plead guilty to the offense of murder with malice in Cause No. 177,987. He was sentenced to a term of twenty-five years. On May 20, 1975, petitioner filed an application for a writ of habeas corpus in the 179th District Court of Harris County, claiming that he plead guilty to murder with malice as a result of judicial coercion. The Hon. I. D. McMaster, who was the presiding judge in the original case, entered an order directing that an evidentiary hearing be held. An evidentiary hearing was held on June 10, 1975 before the Hon. Fred Hooey, sitting as judge of the 179th District Court of Harris County, pursuant to Art. 199a, Section 2.002(b), V.A.C.S., and Gregory v. State, 495 S.W.2d 891 (Tex.Cr.App.1973). At the close of the hearing the petitioner requested the trial court prepare findings of fact and conclusions of law.

The following findings of fact were made by the trial court:

'1) Petitioner was convicted of the felony offense of Murder with Malice, on October 19, 1973, in Cause No. 177,987, styled THE STATE OF TEXAS vs. HENRY DOYLE SHUFLIN, JR., in the 179th District Court of Harris County, Texas, Honorable I. D. McMaster, presiding. Punishment was assessed at twenty-five years imprisonment. Appellant was sentenced accordingly.

'2) Appellant was represented by retained counsel, Stuart Kinard, at and prior to his trial, and by assistant counsel, Terry Gaiser, prior to trial but not at time of trial.

'3) At the time of his trial, applicant waived his right to trial by a jury and received all admonitions and determinations required by law, and entered a plea of guilty before the Court.

'4) Applicant's guilt was proved by competent evidence.

'5) Prior to trial on the plea of guilty to the Court, the same judge had heard evidence for three weeks on pre-trial motions respecting the same case, had presiding (sic) over selection of a jury in said case, which was never sworn, had then presided over a hearing on change of venue in said case, had agreed to order a change of venue, but postponed said act pending assignment of a county of trial by the presiding judge.

'6) Change of venue was scheduled to be formally ordered on October 19, 1973.

'7) Judge I. D. McMaster was expected to preside at trial after a change of venue.

'8) Before a change of venue was formally ordered, Applicant entered his plea of guilty before the Court on October 19, 1973.

'9) During the pre-trial period before October 19, 1975, (sic) plea bargaining had occurred between Assistant District Attorney Jack Bodiford and Applicant's attorney, Mr. Kinard.

'10) Mr. Kinard had communicated to his client, Applicant here, offers, if a plea of guilty were entered, of recommendation of punishment ranging from seventy-five years down to twenty-five years, all of which had been refused by Applicant.

'11) During the pre-trial hearings, selection of jury and change of venue hearing, Judge McMaster was favorably impressed by the conduct and demeanor of Applicant Shuflin, and Judge McMaster so stated to Applicant Shuflin's attorney Mr. Kinard, during informal out-of-court conversation.

12) Mr. Kinard then asked Judge McMaster if the judge would be willing to state his favorable impression of applicant in a letter to the Board of Pardons and Paroles, with recommendation for an early parole for Applicant. Judge McMaster expressed his willingness to do this, at the time Applicant becomes eligible for parole.

'13) Mr. Kinard then requested that the judge write the letter, undated, and give it to Mr. Kinard for Applicant, to guard against the possibility of the event of the judge's death prior to time of Applicant's eligibility for parole.

'14) This the judge agreed to do.

'15) At the time these occurrences transpired, Applicant had still rejected all plea bargains.

'16) Judge McMaster attached no condition, directly or indirectly, to his offer to write this letter.

'17) On October 18, 1973, with a formal change of venue scheduled for the following day, Mr. Kinard, with Applicant's father, consulted with Applicant, evaluating his situation, and recommended that Applicant accept the twenty-five year offer and plead guilty, Mr. Kinard expressing the opinion that the letter Judge McMaster would write would have an impact upon the Board of Pardons and Paroles, and Applicant's father expressing confidence in Mr. Kinard.

'18) Applicant refused to enter a plea of guilty until Mr. Kinard telephoned Mr. Gaiser, Applicant's former assistant counsel, in whom Applicant had confidence, but after that was done, and Applicant received a report on that conversation, Applicant decided to enter a plea of guilty.

'19) Mr. Kinard had previously investigated the time schedules on parole availability, and had informed Applicant that if he had a twenty-five year sentence, he could, with credit for his back jail time and with certain conduct and diligence, be eligible for parole in about three years. This was based on the computation that he could build eight years credit in four years and four months.

'20) Applicant hoped, with the advantage of a letter from the trial judge, to get parole when he first became eligible.

'21) Mr. Kinard also made it clear to Applicant Shuflin that Applicant would also need to get a letter recommending parole from the District Attorney's Office and from the Sheriff of Harris County.

'22) On the morning of October 19, 1973, prior to Applicant's entry of his plea of guilty, Mr. Kinard informed Assistant District Attorney Jack Bodiford that Judge McMaster was going to write a letter recommending early parole for Applicant Shuflin, and asked Mr. Bodiford if he would do the same, to which Mr. Bodiford replied that he would recommend Applicant never receive parole.

'23) Mr. Bodiford's position, thus made clear to Applicant's counsel, was based on his evaluation of Applicant; Mr. Bodiford's conclusions as to Applicant's qualities being different from those of Judge McMaster.

'24) On the morning of October 19, 1973, prior to the entry of Applicant's guilty plea, Judge McMaster did write and deliver to Mr. Kinard the undated Letter which is Applicant's Exhibit No. Two, which extols Applicant's good qualities and expresses the opinion that Applicant 'assuming that he had been a good inmate, should be given serious and favorable consideration for early release under our parole law.'

'25) Judge McMaster in this letter expressed his true convictions and he would have been willing to write a similar letter if Applicant had pleaded not guilty to a jury.

'26) Any hope of Applicant's likely receipt of early parole which Mr. Kinard had imparted to Applicant was in accordance with that lawyer's research and was a genuine hope, as correct as Mr. Kinard could make it.

'27) Before Applicant entered his plea of guilty, Judge McMaster admonished Applicant in accordance with Article 26.13 of the Code of Criminal Procedure of Texas. Applicant's replies are those required to authorize acceptance of a plea of guilty, and they were true.

'28) Judge McMaster did not engage in any plea bargaining in this case and did not attempt to influence Applicant's plea of guilty, not guilty, or nolo contendere by his willingness to write a letter aimed at helping Applicant get early parole.

'29) Applicant did not have any reason, from his attorney, to believe the letter was conditioned upon a plea of guilty.'

In his brief the petitioner asserts four distincty yet very closely related contentions. All involve the trial judge's action in writing the undated letter to the Board of Pardons and Paroles before the petitioner entered his guilty plea. First, petitioner contends that it was fundamentally unfair for the trial judge to enter plea negotiations before an agreement had been reached. Second, the petitioner contends that his plea of guilty was entered because of promises and inducements made by the trial judge in violation of the provisions of Art. 26.13, V.A.C.C.P. Third, the petitioner contends that his guilty plea was obtained in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. The petitioner's fourth and final contention is that his plea of guilty was involuntary and the result of judicial coercion.

We will deal initially with the petitioner's last two contentions; namely, that his plea of guilty was the result of judicial coercion and resulted in a denial of due process. The record of the evidentiary hearing reveals the following admission by the petitioner:

'Q Well, did anybody promise you that you would, in fact, receive an early parole from the Board of Pardons and Paroles if you entered a plea of guilty?

'A I believe that with the letter, sir, from Judge McMaster that I would, yes, sir.

'Q But did anybody promise you that?

'A Sir?

'Q Did anybody promise you that?

'A No, sir.

'Q Did anybody promise you that the Governor would pardon you if you entered a plea of guilty?

'A No, sir.

'Q Did you think that you would receive a parole if you entered a plea of guilty? Not what you hoped, but did anyone promise yo that?

'A No, sir.

'Q And is it your testimony that Mr. Kinard told you that you would be sworn before you entered your plea of guilty, and then in open Court you would state to the judge that you had not been promised anything such as a pardon from the Governor, or any early parole, or that you were not entertaining any delusive hope of pardon or parole from the Governor at the time, and that you would tell Judge...