IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NOS. 3806B-A & 3613-A IN THE 8TH JUDICIAL DISTRICT COURT
FROM RAINS 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered open pleas to one charge of engaging in organized criminal activity, and one charge of burglary of a habitation. He originally received ten years' deferred adjudication community supervision for the engaging in organized criminal activity charge, and ten years' "straight" probation for the burglary of a habitation charge.
The State later moved to revoke Applicant's community supervision in both causes. The trial court adjudicated Applicant guilty and sentenced him to forty years' imprisonment for the engaging in organized criminal activity charge. The court also revoked Applicant's probation in the burglary of a habitation cause, and sentenced him to ten years' imprisonment. Pursuant to the State's motion to cumulate sentences, the trial court ordered the ten year sentence to run consecutively to the forty year sentence.
The Twelfth Court of Appeals affirmed Applicant's convictions. Davis v. State, Nos. 12-04-00157-CR and 12-04-00158-CR (Tex. App. - Tyler, August 17, 2005). This Court granted discretionary review, and affirmed the judgment of the court of appeals. Davis v. State, 227 S.W.3d 733 (Tex. Crim. App. 2007).
Applicant filed these writs of habeas corpus, raising a number of grounds for review. The State had not filed an answer, and the trial court has not entered findings of fact and conclusions of law. Applicant alleges, inter alia, that his pleas both to the original charges and to the allegations in the motion to revoke and adjudicate were involuntary because he was suffering from mental problems, was not properly advised by counsel, and was coerced into pleading guilty and true. He also alleges that he received ineffective assistance of counsel at both plea proceedings. In addition, Applicant alleges that counsel at revocation and adjudication failed to object when the trial court improperly cumulated his sentences after revocation and adjudication, in violation of Section 3.03 of the Texas Penal Code.
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 and revocation/ adjudication 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 supplement the habeas record with copies of the plea documents from the original proceedings, including the admonishments and any evidence introduced to support the pleas. The trial court shall also supplement the record with copies of the conditions of community supervision, and of the motion(s) to revoke probation and proceed to adjudication of guilt. The trial court shall make findings as to whether there was evidence before the court indicating that Applicant was not mentally competent to enter the pleas, and if so whether a competency inquiry was conducted. The trial court shall make findings of fact as to whether Applicant was properly advised of the nature of the charges, the applicable punishment ranges, the rights he was waiving, and the consequences of his pleas, including the consequences if his deferred adjudication community supervision were revoked. The trial court shall make findings as to whether Applicant ever expressed a desire to go to trial on these charges, rather than pleading guilty, and as to whether Applicant was induced to plead guilty in exchange for favorable disposition of pending charges against his mother and younger brother. The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that his pleas of guilty and true were involuntary.
The trial court shall also make findings as to whether Applicant's counsel during the original plea proceedings and the revocation/ adjudication proceedings provided deficient performance, and if so, whether counsel's errors resulted in prejudice to Applicant's cases.
In addition, the trial court shall make findings of fact as to the basis for the State's motion to cumulate the sentences in these causes, and as to the basis for the court's decision to cumulate the sentences. If defense counsel objected to the cumulation of the sentences, the trial court shall make findings as to the stated basis for the objection. 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 claims for habeas corpus relief.
These applications 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: December 12, 2007
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