IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
EX PARTE DANA LYNN ATTAWAY, A.K.A. DANA LYNN RAGSDALE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 0619071A IN THE 8TH JUDICIAL DISTRICT COURT
FROM HOPKINS 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 six counts of aggravated sexual assault of a child and was sentenced to twenty years' imprisonment. She did not appeal her conviction.
Applicant contends, inter alia, that her trial counsel rendered ineffective assistance because he encouraged Applicant to enter a guilty plea although she was heavily medicated, could not read, and did not understand the consequences of the plea. Applicant also alleges that counsel informed her that she was pleading to a non-aggravated offense. The habeas record does not contain copies of any plea documents. However, the record does contain a copy of the indictment, which alleges a single count of aggravated sexual assault of a child and five counts of indecency with a child. The record also contains six separate judgments, one for each count. However, all of the judgments reflect convictions for aggravated sexual assault of a child.
Applicant has alleged facts that, if true, might entitle her 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 claims 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 Applicant pleaded guilty to the counts alleged in the indictment, or whether she in fact pleaded guilty to six counts of aggravated sexual assault of a child. The trial court shall supplement the record with copies of any plea documents, including the plea agreement and the admonishments, waivers, and judicial confession, if any, signed by Applicant. The trial court shall make findings as to whether there was any indication that Applicant was not competent or did not understand the proceedings. 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: November 14, 2007
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