IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-64,766-02
EX PARTE DAVID CARL SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10161JD IN THE 1ST DISTRICT COURT
FROM JASPER COUNTY
Per curiam.
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 was convicted of aggravated assault with a deadly weapon and sentenced to ten years’ imprisonment. The Ninth Court of Appeals affirmed his conviction. Smith v. State, No. 09-07-368-CR (Tex. App.–Beaumont, Oct. 8, 2008, pet. ref’d.) (not designated for publication).
Applicant contends that his plea was rendered involuntary by counsel’s ineffectiveness and by the impossibility of performance of his plea agreement. Applicant initially pleaded guilty for six years’ deferred adjudication community supervision. He was sent to a Substance Abuse Felony Punishment Facility (SAFPF) as a condition of supervision and, according to the habeas record, was “psychologically discharged” after being diagnosed with intermittent explosive disorder. Applicant was adjudicated guilty and sentenced to ten years’ imprisonment based on his failure to complete SAFPF as a condition of supervision. Applicant alleges that participation in SAFPF was part of his plea agreement and that he was “statutorily ineligible” for participation in SAFPF due to his mental health problems. At the adjudication hearing, Applicant testified that he had been diagnosed with the disorder on three separate occasions before being sent to SAFPF. A psychologist from a SAFPF facility also testified that Applicant had received several mental health diagnoses before he was sent to SAFPF, stating that there was a “whole litany” of diagnoses in his file.
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 obtain a response from trial counsel addressing 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 and conclusions of law in regard to Applicant’s claims that his plea was involuntary due to the impossibility of performance and due to the ineffective assistance of counsel. The trial court shall make specific findings of fact as to whether Applicant was “statutorily ineligible” for SAFPF. The trial court shall also make specific findings of fact as to whether participation in SAFPF was an affirmative part of the plea bargain, and if so, whether performance of the plea agreement was impossible due to Applicant’s mental health. Additionally, the trial court shall make specific findings of fact as to whether trial counsel investigated Applicant’s eligibility for SAFPF or was otherwise on notice that Applicant had mental health problems that would make him unsuitable for SAFPF. 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.
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: March 31, 2010
Do not publish