                                   PD-1558-15




              THE COURT OF CRIMINAL APPEALS


                          Ex Parte Caret Jonson


           PETITION FOR DISCRETIONARY REVIEW



On Appeal from an order denying relief on an Application for Writ of Habeas
             Corpus from the County Court at Law Number 6
                           C-l-CR 06-723225




                                  Adam T. King Blackwell Reposa
                                  SEN 24040163
                                  1106 San Antonio
                                  Austin, Texas 78701
                                  Tel: (512)476-0444
                                  Fax: (512) 478-1114
                                  Attorney for Defendant




    December 29, 2015
                         IDENTITY OF PARTIES AND COUNSEL




Defendant In Underlying Action
Caret Johnson

Represented by:
Adam T. Reposa
SBN 24040163
1106 San Antonio
Austin, Texas 78701
Tel: (512) 476-0444
Fax: (512) 478-1114


2. State of Texas, Respondent
Lisa Mimms
P.O. box 13046
Austin, TX 78711




Trial Court Judge
The Honorable Michael McCormick, County Court at Law Number 6, Sitting by assignment for
the Honorable Brandy Mueller, Travis County Courthouse
509 W 11'^ St, Austin, TX 78701
                                 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                              i

TABLE OF CONTENTS                                                            u

STATEMENT OF THE CASE                                                        iii

STATEMENT OF PROCEDURAL HISTORY                                              iii

GROUNDS FOR REVIEW                                                           iii

STATEMENT OF FACTS                                                           1

1. Procedural History                                                        1
2. Collaterally Relevant Procedural History                                  1
3. The Dispute That Gave Rise To The Application for Writ of Habeas Corpus
   and now the Original Mandamus Petition.                                   1
4. Trial Court Ruling                                                        2


ARGUMENTS AND AUTHORITIES                                                    2

STANDARD OF REVIEW                                                           2

PRAYER                                                                       3

SIGNATURE                                                                     3

VERIFICATION                                                                 4
                      STATEMENT REGARDING ORAL ARGUMENT

Oral argument is waived. The facts stand on their own and no sophisticated legal analysis is
required.

                                  STATEMENT OF T H E CASE

This is an appeal of an order denying relief in an Application for Writ of Habeas Corpus in, the
State of Texas vs. Caret Johnson, C-l-CR 06-723225

The factual finding of the trial court is in no way supported by the record. The Third Court of
Appeals has both so far departed from the accepted and usual course of judicial proceedings, and
sanctioned such a departure by a lower court, as to call for an exercise of this Court's power of
supervision.


                     STATEMENT OF THE PROCEDURAL HISTORY

On July 19, 2015 the court of Appeals delivered an opinion and then denied rehearing and
rehearing en banc on October 20, 2013. This Court granted an extension to file until December
28, 2015.

                                    GROUNDS FOR REVIEW

    1. The lower court affirmed a trial court ruling in the face of uncontroverted testimony by
       the Petitioner. The lower court incredibly relied on a material fact that Petitioner alleged
       in his writ application and was required himself to prove in order to obtain relief as the
       basis for their opinion that the trial court did not abuse its discretion in making findings
       of fact.

   Specifically, Caret Johnson allegeded in his petition for writ of habeas corpus that he was
   misled, or in the alternative, lied to, about the terms of his plea bargain by his lawyer.
   Specifically, the petition alleged that his lawyer advised him that in order to get a felony
   cocaine case reduced to a misdemeanor he would have to plead guilty to a DWI out of the
   same incident, that the offer to reduce the felony charge to a misdemeanor was never part of
   the plea bargain offer from the prosecutor handling the case, and that it was only after a
   motion to revoke probation was filed in his DWI and Class A Attempted Possession of a
   Controlled Substance case that Petitioner hired new counsel and discovered that he had been
   misled about having to plead to the DWI.




(g) Grounds for Review. The petition must state briefly, without argument, the grounds on which the
petition is based. The grounds must be separately numbered. If the petitioner has access to the record,
the petitioner must (after each ground) refer to the page of the record where the matter complained of
is found. Instead of listing grounds for review, the petition may contain the questions presented for
review, expressed in tlie terms and circumstances of the case but without unnecessary detail. The
statement of questions should be short and concise, not argumentative or repetitious.




(h) Argument. The petition must contain a direct and concise argument, with supporting authorities,
amplifying the reasons for granting review. See Rule 66.3. The court of appeals' opinions wilt be
considered with the petition, and statements in those opinions need not be repeated if counsel accepts
them as correct.

(i) Prayer for Relief. The petition must state clearly the nature of the relief sought, (j) Appendix. The
petition must contain a copy of any opinion of the court of appeals.

in , or even relevant to, the facts in the record relied upon by this court in affirming the denial,
and it is for this reason that Appellant files this motion for rehearing. Counsel for Appellant is
unable to advise Appellant as to whether unintentional misunderstanding or intentional ignorance
is afoot. Counsel for Appellant can only hope and assume that it is an honest mistake, however
he knows that the first opinion entered in this case is clearly mistaken.


                                ISSUES PRESENTED FOR RELIEF

The controverted fact for which the hearing was originally convened to decide was whether
Appellant was erroneously advised of the terms of a plea bargain that covered two charges.
Appellant asserted that he was intentionally misadvised by his lawyer that he had to waive his
right to jury trial on a DWI charge and agree to plead guilty in exchange for having a State Jail
Felony POCS reduced to a misdemeanor Attempted POCS.

The trial court, after a year and the filing of a writ of mandamus, made the fact finding that the
misrepresentation was never made.

This Court found that trial court did not abuse its discretion. In the analysis this Court mentions
facts which support the trial courts finding. However the facts mentioned to support the trial
court's finding at best have no relevance. At worst, they are the same facts relied upon by the
Applicant in his writ of habeas corpus.

Specifically, Appellant asserted that his lawyer intentionally misrepresented that the felony
prosecutor wanted him to agree to waive his right to jury trial and plead guilty to DWI as a term
in a plea bargain that would reduce a felony POCS charge to a misdemeanor. Essentially the
thrust of Appellant's claim was "my lawyer told me I had to plead guilty to a DWI when 1 didn't.
She lied to me. She told me I had to give up my rights when I didn't have to".

Understood logically, for Appellant to meet his burden and prevail on his writ of habeas corpus,
he has to show that waiving his right to jury trial on the DWI was not part of the plea bargain,
and that his lawyer told him it was. Then contrast that with this Court's opinion that holds that
the fact that waiving jury was never part of the plea bargain shows that the lawyer never said that
it was, or at least supports the trial court finding on appeal.
Counsel for Appellant can not advise Appellant about whether the logic of this Court's reasoning
is an accident or a message.




                                            ARGUMENT

The record makes clear that Appellant made a claim that he was duped by his lawyer into
waiving his right to trial in a writ of habeas corpus. The Third Court obviously understood this
to be Appellant's claim. The opinion also reduces the issue this way.

               "He asserted that his trial counsel misrepresented Information to him about the plea
               agreements she negotiated on his behalf. He claims that his trial counsel had advised
               him that in order to accept the plea bargain reducing the felony drug possession to the
               lesser charge of attempted possession of a controlled substance he was required to
               plead to the driving while intoxicated charge." Johnson v. State, (Tex. App. Austin
               2015)

The Third Court goes on to say,

               "Appellant claims that his trial counsel tricked him into entering a plea to the driving
               while intoxicated charge as a prerequisite to reducing the possession of a controlled
               substance charge from a felony to a misdemeanor." Johnson v. State. (Tex. App.
               Austin 2015)


The Third Court then discusses the lawyer's testimony and focuses on three facts. First, the
lawyer's career and professional experience is established.

               "Appellant's trial counsel testified at the habeas hearing that throughout her
               17-year career as a criminal defense attorney she has handled roughly 2500
               cases." Johnson v. State, (Tex. App. Austin 2015)

The second fact is a partial repetition of the first fact along with a conclusory denial.

               "She indicated that this was not her first time advising a client about the
               details of a plea agreement and she correctly advised appellant of his options
               in this case." Johnson v. State, (Tex. App. Austin 2015)

The last fact, and the greatest departure from the usual course of judicial proceedings, is the
weight given to the testimony that the D W I conviction was never part of the plea bargin.

                "The assistant district attorney handling the felony drug charge testified that "the
                offer I made was not contingent on anything happening in that DWI."
                Additionally, the assistant county attorney handling the D W I stated that had the
               DWI been contingent on the drug charge she would have called the felony
               prosecutor to work out details of the terms of probation and that she has no record
               of ever making such a call. In their testimony at the habeas hearing, consistent
               with their affidavits submitted in response to appellant's habeas corpus
               application, the assistant district attorney, the assistant county attorney, and
               appellant's trial counsel all stated that they could not recall any mention of the
               DWI plea being a prerequisite to the reduction of the drug possession charge nor
               did they have any notes pertaining to such a package deal in their files. Moreover,
               neither written plea agreement contained any mention that the plea was related to
               or conditional upon the other plea." Johnson v. State, (Tex. App. Austin 2015)


This is the entire point, and it is clearly understood by the Third Court. Again, the Third Court
opinion in this case clearly states:

               "Appellant claims that his trial counsel tricked him into entering a plea to the driving
               while intoxicated charge as a prerequisite to reducing the possession of a controlled
               substance charge from a felony to a misdemeanor." Johnson v. State, (Tex. App.
               Austin 2015)


Petitioner's claim boils down to his assertion that his lawyer tricked him into believing that he
had to plead guilty to a DWI in order to get his felony charge reduced. In order to meet his
burden Petitioner put on evidence that the felony prosecutor never made it a condition of her plea
deal and then himself testified that his lawyer told him it was part of the plea deal.

The Third Court reasons that the trial court's finding that the lawyer never told Petitioner that the
DWI conviction was part of the felony plea bargain based on the fact, that it was never part of
the plea agreement. Basically, since it was never part of the plea bargain, that shows in some
way that the lawyer never said that it was.

This is a radical departure from how a hearing to establish whether a lawyer lied to their client
about a plea bargain should proceed. The idea that when a Defendant claims that he forfeited a
right because his lawyer lied to him about the terms of a plea bargain, and the prosecutor's
testimony that forfeiting the right was never part of the plea bargain somehow proves that his
lawyer never lied to him and said that it was is just preposterous.

One can only guess whether lawyers are more likely to lie to their client's after years of
experience, or, the first day on the job. There is nothing about the fact that a lawyer has
practiced for years that suggests that the lawyer would not lie. The fact that a lawyer has
handled thousands of cases over many years does not make them more or less likely to lie to
their clients. Further just saying that your actions were correct does not prove that they are or
there would be no need for the hearing.
The contested fact was whether counsel misrepresented to Appellant the terms of the plea
bargain and if all that is required to sustain a finding of fact is coming to court and asserting that
you didn't err, then the hearing is needless and perfunctory.

Petitioner's testimony was uncontroverted. The reason that the Third Court did not rely on the
lawyer's testimony regarding her advice to the client is that there was none.




                                              PRAYER

Petitioner Johnson prays that this Court grant the petition for discretionary review and any other
relief into which Petifioner may be entitled to under law.


                                               Respectfully submitted,

                                               Adam T. Reposa
                                               SBN 24040163
                                               1106 San Antonio
                                               Austin. Texas 78701
                                               Tel: (512) 476-0444
                                               Fax: (512) 478-1114




                                               By:
                                                     Adam T. Reposa
                                                     Attorney for Garet Johnson



                                  CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was served on the Travis Coimty Attorney's
Office via Hand Delivery on this, the 4th day of October, 2013.



                                               By:
                                                     Adam T. Reposa
                                                     Attorney for Garet Johnson
