IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-64,831-01
EX PARTE LINDA JEAN JOHNSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W93-04838-N(A) IN THE 195TH DISTRICT COURT
DALLAS COUNTY
O R D E R
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated robbery and sentenced to confinement for fifty years. Applicant's conviction was affirmed on appeal. Johnson v. State, No. 05-94-01100-CR (Tex. App.--Dallas, delivered February 28, 1997, no pet.).
Applicant contends that she desired to be placed on probation, but that trial counsel failed to inform her of the State's initial plea offer of ten years and to enter her guilty plea after she had agreed to a subsequent offer of eight years. In addition, Applicant contends that during closing arguments trial counsel described Applicant as a "thief," a "liar," a "person with no credibility," and a "dope addict that loved dope more than her own children"; argued that Applicant was guilty of aggravated assault; and stated that Applicant's self-defense testimony was "not important."
The trial court has entered findings of fact or conclusions of law finding that counsel was effective. However, we do not believe that those factual findings are supported by the record. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for a fuller resolution of those issues. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order a live evidentiary hearing.
The trial court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
The trial court shall then make findings of fact as to whether counsel failed to inform Applicant of the State's plea offer of ten years and failed to enter Applicant's guilty plea after the State offered eight years. If the trial court finds that counsel was deficient in either respect, it shall then make findings as to counsel's reasons. Alternatively, if the trial court finds that counsel was not deficient, it shall make findings as to why counsel then allowed Applicant to waive her right to a jury trial, when only a jury was authorized to recommend probation for the offense of aggravated robbery. See Tex. Code Crim. Proc. art. 42.12, § 3(g). Finally, the trial court shall make findings of fact as to whether counsel's statements during closing arguments were deficient and, if so, whether counsel was ineffective. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. (1) A supplemental transcript containing the transcription of the court reporter's notes from the live hearing, any interrogatories, and any additional affidavits, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. (2)
IT IS SO ORDERED THIS THE 21st DAY OF JUNE, 2006.
DO NOT PUBLISH
1. In the event any continuances are granted, copies of the order granting the continuance
shall be provided to this Court.
2. Any extensions of this time period shall be obtained from this Court.