IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NOS. 4836-A AND 4813-A IN THE 100TH DISTRICT COURT
FROM CHILDRESS 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of injury to a child and possession of a controlled substance and sentenced to fifty (50) years' imprisonment in each case. He did not appeal his convictions.
Applicant contends that his guilty pleas were involuntary because he was not competent to enter his pleas. He alleges that he never admitted to intentionally injuring a child but only admitted to using illicit drugs. Applicant alleges that he was not properly admonished as to the consequences of his pleas. Also, Applicant alleges that counsel's representation was tainted by a conflict of interest because counsel represented Eugene Davies at the same time as he represented Applicant and Davies testified against Applicant in the possession of a controlled substance case.
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 the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall also make findings of fact as to whether counsel believed that Applicant was competent when he entered his pleas. The trial court shall also make findings of facts as to whether counsel represented any individual who testified against Applicant at the same time as he represented Applicant. The trial court shall make findings of fact as to whether Applicant was properly admonished as to the consequences of his guilty pleas and, if so, shall supplement the record with a copy of the written admonishments. The trial court shall also supplement the record with a transcription of the court reporter's notes from any competency hearing. 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: February 7, 2007
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