

 







IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-76,896


EX PARTE MICHAEL WAYNE GAITHER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 9797-A IN THE 132ND JUDICIAL DISTRICT COURT

SCURRY COUNTY



 Cochran, J., delivered the opinion of the Court in which Keller, P.J., and
Price, Womack, Johnson, Keasler, Hervey, and Alcala, JJ., joined.  Meyers,
J., did not participate.


O P I N I O N

 
	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 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:
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 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 his sentences would run concurrent," and that
objecting to the imposition of consecutive sentences would have been futile because the
sentences were "consistent with the plea bargain, which was initialed by Mr. Gaither." 
	Based on a review of the record, trial counsel's testimony at the hearing, and his
personal recollection of applicant's guilty plea, the trial judge entered supplemental findings
of fact and conclusions of law stating that applicant filled out his habeas application with
information that he knew to be false. 
	The supplemental findings and conclusions note that counsel's testimony "directly
refutes" applicant's claims, and that "applicant's assertions . . . cannot be true." (10) The trial
judge further found that applicant's statements were "deceitful and intentionally misleading."
Specifically, the trial judge concluded that "Applicant's claim that trial counsel advised him
that his sentence would run concurrently is perjurious." (11) 
	We adopt these supplemental findings and agree with the trial judge that, in using
information he knew to be false to fill out his application, applicant has abused the writ
process. Based on the record and the supplemental findings, we agree that applicant's trial
counsel did not "coerce" applicant or provide him with "erroneous information" regarding
the plea offer.  Furthermore, counsel's failure to object to the imposition of consecutive
sentences was not deficient. It is clear to us--as it was to the trial judge and to trial
counsel--that applicant knew that these two sentences would be served consecutive to his
prior 2006 burglary sentence and that applicant intentionally provided false information in
his writ application. We deny relief on this application and cite applicant for abuse of the
writ.  Furthermore, "'applicant has waived and abandoned any contention he might have in
regard to the instant conviction,' at least insofar as existing claims that he could or should
have brought in this application." (12) 
	In Jones and Middaugh, the applicants attached forged documents to their
applications. (13) Here, applicant was intentionally dishonest in the application itself. In his
application for habeas corpus, applicant signed the following Inmate Declaration:
	I, Michael Wayne Gaither, being presently incarcerated in TDCJ-Tulia
Transfer Facility, declare under penalty of perjury that, according to my belief,
the facts stated in the application are true and correct. 
Applicant violated this oath.
	The writ of habeas corpus is a an integral part of our criminal justice system that is
firmly rooted in our common-law heritage. (14) It allows incarcerated individuals who have
suffered a constitutional defect in their trial to "collaterally attack" that conviction, arguing
that their continued imprisonment is unlawful. (15) The Great Writ is reserved for extraordinary
equitable matters when no other legal remedy is available; it is not merely another layer of,
nor a substitute for, an appeal. (16)  Although equitable relief may be rare, the pursuit of such
relief is not; "we continue to hunt for the needles of meritorious writs in an ever-expanding
haystack of writ filings." (17)  Last fiscal year alone, 5,632 applications for habeas corpus or
other extraordinary relief were filed in this Court. (18)  Despite the number of applications filed,
all "'are carefully scrutinized by an already over-burdened court.'" (19) The act of filing a
perjurious application is an affront not just to this Court, but to the criminal-justice system
generally, as well as to all citizens--especially those inmates with potentially meritorious
habeas claims. Such filings also waste valuable tax dollars. For these reasons we "will not
tolerate the filing of perjurious or forged material in writs of habeas corpus." (20)
	As we did in Middaugh, we direct the Clerk of this Court to forward a copy of this
opinion, along with the habeas application, to the prosecuting office in the county where
applicant signed (or filed) the inmate declaration. The Clerk shall also advise the prosecutor
"to take such action as he may deem appropriate." (21)  We note that any sentence imposed as
a result of a conviction for an offence while committed in prison shall be "stacked" atop the
sentences currently being served. (22) 
	Furthermore, the denial of a frivolous initial writ application under Article 11.07 acts
as a bar to filing any further writ applications, except in those few exceptions set out in
Article 11.07, § 4. Writ applications dismissed under section 4 may, in appropriate cases, be
dismissed with a final order declaring the lawsuit frivolous.
	It is therefore ordered that relief is denied.  In addition, we cite applicant for abuse of
the writ. 
Delivered: December 12, 2012
Publish
1.  Because applicant pled true to the single enhancement paragraph, he faced a possible
sentence of up to twenty years' imprisonment on the offense of organized criminal activity had
he chosen to go to trial.
2.  Throughout the proceedings below, this prior burglary conviction was referred to by its
cause number, 8777. 	
3.  Writ Application at 11.
4.  Id.
5.  Id. at 12.
6.  After applicant acknowledged his agreement with the terms of the plea bargain, the trial
judge formally sentenced applicant and stated that his sentences would "start to run when you
finish the 2006 sentence as provided for in your plea agreement," and the organized-criminal-activity sentence "will not begin to run until [the 2006] cause number has been completed."
7.  Findings of Fact and Conclusions of Law (FF&CL) No. 22.
8.  FF&CL Nos. 24 and 25 set out the trial judge's concerns:

		24. This Applicant's filing illustrates what has been done by prison
inmates ad infinitum. That is, many inmates are willing to make
spurious and vain allegations hoping that they will be released
from prison, obtain some relief (perhaps a trip from TDCJ to the
county jail for an evidentiary hearing) or cause trouble for those the
inmate believes played some part in his being incarcerated.
Therefore, he "concocts a piece of pure fiction [he] denominate[s]
a Writ of Habeas Corpus. As a result of [his] ploy, prison officials,
district clerks, court coordinators, sheriff's officers, bailiffs, court
reporters," and prosecutors "are charged with responsibilities, and
must discharge them, not to mention the hours of judge time, and
this just at the Trial Court level! The taxpayers of this State have
been robbed of a lot of dollars by th[e]...inmate..., and this Court
does not believe [he] ought to be allowed to do so with impunity."
Ex parte Emmons, 660 S.W.2d 106, 109 (Tex. Crim. App. 1983). 

		25. The written record in this case clearly reveals that Applicant is
abusing the Writ process. The Writ privilege afforded to those who
are truly illegally restrained is too serious and important a matter to
be lightly and easily abused. See Ex parte Carr, 511 S.W.2d 523
(Tex. Crim. App. 1974). 
9.  The State introduced the written plea offer into evidence. It shows applicant's initials
and states that the sentences will be served consecutive to the 2003 burglary charge. The exact
language is: "sentence to begin when sentence in 8777 ceases to operate." 
10.  FF&CL 3, 10.
11.  FF&CL 11-12.
12.  Ex parte Jones, 97 S.W.3d 586, 588 (Tex. Crim. App. 2003) (quoting  Middaugh v.
State, 683 S.W.2d 713, 714 (Tex. Crim. App. 1985)).
13.  Jones, 97 S.W.3d at 587-88; Middaugh, 683 S.W.2d at 714. 
14.  Preiser v. Rodriguez, 411 U.S. 475, 485 (1973). 
15.  See Ex parte Baker, 185 S.W.3d 894, 897 (Tex. Crim. App. 2006). 
16.  Ex parte Clore, 690 S.W.2d 899, 900 (Tex. Crim. App. 1985). 
17.  Jones, 97 S.W.3d at 588.
18.  Court of Criminal Appeals Activity, Annual Report of the Texas Judiciary:
Fiscal Year 2012 (Office of Court Administration).
19.  Jones, 97 S.W.3d at 588 (quoting Middaugh, 683 S.W.2d at 714).
20.  Id.
21.  Middaugh, 683 S.W.2d at 715.
22.  Jones, 97 S.W.3d at 589 ("[I]f a defendant is convicted of an offense committed while
he is an inmate in the institutional division of the Texas Department of Criminal Justice, the trial
judge shall 'stack' any sentence for the subsequent offense on top of the original sentence."). 
