            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



        C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J., and
P RICE, W OMACK, J OHNSON, K EASLER, H ERVEY, and A LCALA, JJ., joined. M EYERS,
J., did not participate.


                                        OPINION

       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)


       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.
                                                                      Ex parte Gaither    Page 2

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.



       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.
                                                                         Ex parte Gaither    Page 3

         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
                                                                           Ex parte Gaither   Page 4

                  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


         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
                                                                           Ex parte Gaither   Page 5

       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



               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.”
                                                                      Ex parte Gaither    Page 6

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



       10
            FF&CL 3, 10.
       11
            FF&CL 11-12.
                                                                       Ex parte Gaither    Page 7

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



       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).
                                                                       Ex parte Gaither   Page 8

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




       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.
                                                                         Ex parte Gaither    Page 9

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




       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.”).
