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October 22, 1975


Habeas Corpus Application from Harris County


For Appellant: Will Gray - Houston, Texas.

For Appellee: Carol Vance, D.A. - Houston, Texas.

Author: Brown

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 ...

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