IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 22731 IN THE 6TH JUDICIAL DISTRICT COURT
FROM LAMAR 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 two counts of aggravated robbery and was sentenced to thirty years' imprisonment for each count, to run concurrently. He did not appeal his conviction.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to investigate and learn that the State had previously offered to reduce Applicant's charges in exchange for his cooperation with investigating authorities. Applicant alleges that he did cooperate and provide information which led to the identification of a co-defendant. Applicant alleges that the co-defendant received deferred adjudication community supervision pursuant to a plea agreement. However, after Applicant retained different counsel, he alleges that he was persuaded to plead guilty to the aggravated robbery charges pursuant to a negotiated plea which he believed would result in deferred adjudication, but which in fact resulted in the thirty-year prison sentence.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall obtain an affidavit from each of Applicant's trial attorneys responding to Applicant's claims of ineffective assistance of counsel. Specifically, each attorney shall state whether he was aware of any offer extended by the State in exchange for Applicant's cooperation with the investigation, and shall state, if such an offer existed, what were the terms of the offer, and what happened to the offer. Each attorney shall also state whether he advised Applicant that he would receive deferred adjudication community supervision pursuant to his plea agreement. 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 either of Applicant's trial attorneys 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: October 12, 2011
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