Ex parte Bice

Ex parte Jordan Graham Bice

NO. 03-18-00758-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 22, 2019

FROM COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY

NO. 18-0202-C, THE HONORABLE DAVID GLICKLER, JUDGE PRESIDING

MEMORANDUM OPINION

Jordan Graham Bice was convicted of the misdemeanor offense of theft and was sentenced to two days' "confinement in the Hays County Jail" with credit for time served. See Tex. Penal Code § 31.03(a), (b), (e). Approximately two years later, Bice filed an application for writ of habeas corpus challenging the propriety of his conviction. See Tex. Code Crim. Proc. art. 11.09. Following a hearing, the trial court denied the writ application. Bice appeals the trial court's order. We will affirm the trial court's order denying the writ application.

BACKGROUND

As mentioned above, Bice was convicted of theft and later filed an application for writ of habeas corpus challenging his conviction. In his writ application, Bice stated that he and his girlfriend at the time were alleged to have "removed price tags on several pieces of electronic accessories" at a store and then "replaced them with the price tags of less expensive items." During the underlying trial proceedings, Kyle Maysel was appointed as Bice's attorney, and various prosecutors, including Ariane Flores and Benjamin Gillis, were involved in the events leading up to the trial, including plea negotiations.

After Bice was convicted, Maysel died. Months later, Bice filed an application for writ of habeas corpus contending that Maysel provided ineffective assistance of counsel during the underlying proceedings. In particular, Bice asserted in his writ application that the State "decided to recommend Pretrial Intervention ('PTI')," which "would have allowed [him] to have the charge dismissed . . . upon successful completion of the supervision period, and would have made him eligible for an expunction" after he paid "a $500 fee," completed "a theft class," and performed "a small amount of community service." However, Bice asserted that Maysel incorrectly conveyed that the $500 "fee was discretionary on the part of the" State when the fee was actually mandatory and that the State's decision to impose the fee meant that the State was acting "out of the ordinary." Further, Bice argued that he was never advised "that he would be allowed to make payments on the $500 fee." Bice also alleged that Maysel incorrectly assessed the strength of the State's case and stated that they "would likely prevail at trial" despite knowing that there were witnesses to and surveillance footage of the alleged crime and that he "was caught with . . . items with altered tags in his possession." Moreover, Bice argued that Maysel's assurances about the case and warnings that the State was acting "out of the ordinary" persuaded him "to accept counsel's advice that he reject the plea offer and proceed to trial." Additionally, Bice asserted that after the State initially offered to recommend pretrial intervention, the State "offered to recommend six months deferred adjudication on the theft charge, with reduced fine and court costs," but that Maysel "never conveyed" the offer.

In his writ application, Bice urged that if the first offer had been properly explained and if the second offer had been conveyed to him, he would have accepted either offerbecause they "would have resulted in the ultimate dismissal of the theft charge." Further, Bice asserted that his conviction resulted in being denied "employment opportunities" because "he has been unable to find suitable employment since earning his degree" and "has been summarily denied each and every job for which he has applied, upon return of the background check." In light of the preceding, Bice requested that the trial court vacate his prior conviction and "[o]rder the State to reoffer its previous recommendations of Pretrial Intervention or six months unsupervised deferred adjudication."

As support for his claims, Bice attached to his writ application an affidavit from Anthony Fusco, who represented Bice after he was convicted. In his affidavit, Fusco summarized conversations that he had with Bice and with Flores, who prosecuted the case. Specifically, Fusco stated that Flores informed him about the second plea offer of six months deferred adjudication that she conveyed to Maysel. Moreover, Fusco related that when he mentioned the second offer to Bice, Bice stated that Maysel never told him about the offer.

In addition, Bice attached his own affidavit in which he recounted various conversations that he allegedly had with Maysel and discussed his understanding of the initial plea offer. Regarding the plea offer, Bice stated that he would not have risked going to trial if he had "been advised that the $500 pretrial intervention fee was in fact mandatory" or if he had been provided with "a realistic evaluation" of his case. Additionally, Bice asserted that the State made a second offer recommending "six months unsupervised deferred adjudication" but that Maysel never told him about the offer. Bice contended that he would have accepted the second offer if it had been communicated to him.

In its response, the State urged that Bice's allegation that his attorney "failed to inform [him] of how PTI 'functions,' . . . lacks corroboration" and was inconsistent with whatoccurred in the underlying proceedings. In particular, the State argued that Maysel's interaction with the various prosecuting attorneys demonstrated that he communicated to Bice how the pretrial intervention "program worked and what the State was requiring." The State also urged that Maysel "understood the evidence" against Bice and "tried to strategically differentiate [Bice] from his more culpable co-defendant" by arguing to the State that Bice did not "do the actual stealing, his girlfriend did." Regarding the allegation that Maysel failed to communicate an additional offer, the State argued that there was no evidence to support that claim. On the contrary, the State insisted that after learning of the new offer, Maysel informed the State that he would communicate the offer to his client.

As support for its contentions, the State attached affidavits from various individuals involved in the prosecution of the underlying case, including Flores and Gillis. In her affidavit, Flores explained that during a hearing, Maysel "attempted to plea to the Pre-Trial Intervention + 24 community service restitution hours + theft class" and that "the State required proof of school or work, two letters of recommendation, and a $100 money order from" Bice going "towards the $500 balance for the PTI program" before the State would agree to recommend placing Bice in pretrial intervention. Further, Flores related that Maysel showed "Gillis proof of school" enrollment, "two letters of recommendation, and a completed theft class" and that Gillis "agreed to a re-set so that applicant could get his $100 money order." Next, Flores stated that Maysel later expressed "frustration about the fees" and asked her if it was possible for her to make a different plea offer because Bice "could not afford PTI fees," that she "conveyed a new offer of six months unsupervised deferred adjudication" plus a $300 fine, and that Maysel stated that "he would convey the offer but knew his client would reject it." Furthermore, Flores stated that Maysel told her that Bice was "not culpable" because he did not"do the actual stealing, his girlfriend did," and accordingly, that the State would have a difficult time proving its case.

In his affidavit, Gillis explained that Maysel established Bice's compliance with most of the requirements for the intervention program listed above. In addition, Gillis stated that the fact that Maysel provided proof of Bice's enrollment in school from "a phone purported to belong to Bice" led Gillis "to believe that Mr. Maysel conveyed the offer of PTI to Bice." Gillis also related that he told Maysel "that Bice would need to pay $100 at the time of his plea to begin the PTI," that Maysel explained that he had not been told about the fee prior to that conversation, and that Maysel stated that he needed to talk to his client about that requirement.

During the habeas hearing, Bice was the only witness to testify. In his testimony, Bice stated that Maysel persuaded him during their first meeting that being placed in the pretrial-intervention program was the best option because a trial was too risky. In addition, Bice related that Maysel seemed to have a good understanding of the case, that he felt comfortable asking Maysel questions about his case, that Maysel responded to his questions, and that Maysel explained that the pretrial-intervention program would entail "a year of probation, community service, a theft class, and a $500 fee." However, Bice testified that Maysel never explained that the $500 fee could be paid off in installments or that he was only required to pay $100 of the fee before entering the pretrial-intervention program. Bice also stated that although he told Maysel that it would be difficult for him to pay the $500 fee at the time, he could have paid $100 to enter the intervention program.

In his testimony, Bice also explained that Maysel told him that they could go to trial "if [he] want[ed] to." Bice also recalled that Maysel did not guarantee any outcome but was hopeful that they could win the case because "[h]e thought there was a lack of evidence."Moreover, Bice testified that Maysel said that there were no witnesses or surveillance footage of the criminal episode and that, accordingly, he was surprised during the trial when a loss-prevention officer from the store testified at trial and explained that she watched footage of the crime. Further, Bice testified that Maysel never informed him that the State made a second plea offer and that he would have accepted the second offer.

After the hearing, the trial court denied Bice's writ application. The trial...