IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. WHCP-06-20565A IN THE 91ST DISTRICT COURT
FROM EASTLAND COUNTY
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of a controlled substance and was sentenced to ten years' imprisonment. He did not appeal his conviction.
Applicant contends inter alia that his trial counsel rendered ineffective assistance because he failed to properly investigate and file pre-trial motions prior to advising Applicant to plead guilty to the offense charged. According to Applicant, had counsel performed a proper investigation, he would have discovered a laboratory report showing that the quantity of methamphetamine possessed by Applicant was less than one gram. Applicant also alleges that his guilty plea was not knowingly and voluntarily entered, because he was advised to plead guilty to a third degree felony (enhanced to a second degree punishment range by two prior convictions), rather than to a state jail felony, which, according to Applicant, was the most serious offense available based on the quantity of methamphetamine shown in the lab report. Finally, Applicant alleges that his ten-year sentence is unauthorized, because he should have been charged only with a state jail felony.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether a lab report exists in this case, showing the quantity of methamphetamine possessed by Applicant. If such a report does exist, the court shall make findings as to whether the quantity of methamphetamine possessed by Applicant according to the lab report supports a third degree felony charge, or only a state jail felony charge. The trial court shall make findings as to whether Applicant's trial counsel was aware of the existence of such a lab report prior to the entry of the plea, and if so, whether counsel properly advised Applicant of the applicable range of punishment for the offense supported by the lab report. If counsel advised Applicant to plead guilty to a greater degree of offense than was supported by the quantity of methamphetamine shown by the lab report, the court shall make findings as to why. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: August 30, 2006
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