IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-79,724-01
EX PARTE GLENDON KEITH GIRARD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W219-80981-2011-HC IN THE 219TH DISTRICT COURT
FROM COLLIN 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of failing to register as a sex offender and sentenced to seven years’ imprisonment. He did not appeal his conviction.
Applicant was previously convicted in Kingfisher County, Oklahoma, of lewd molestation (cause no. F-84-70); there are no documents in the writ record from that prior conviction. Applicant was later charged in Texas for failing to register as a sex offender based on the Oklahoma conviction. He pled guilty under a plea agreement. Applicant complains that his trial counsel should not have allowed him to plead guilty because he argues he was never actually required to register as a sex offender.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order Applicant’s trial counsel to respond to the allegation that he was ineffective for allowing Applicant to plead guilty when Applicant had no legal duty to register as a sex offender. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall also supplement the writ record to this Court with the indictment in the Oklahoma case or other charging or plea documents that show the elements of the lewd molestation offense of conviction, as well as, the judgment of conviction or similar document and documents indicating when Applicant was finally discharged from probation, prison, or another sentence or disposition. The trial court shall also supply this court with information regarding whether the Texas Department of Public Safety has made a determination whether the lewd molestation offense at issue contains elements that are substantially similar to elements of a reportable sex offense in Texas. See Crabtree v. Texas, 389 S.W.3d 820 (Tex.Crim.App. 2012); Tex. Code Crim. Proc. art. 62.003.
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 as to whether the Oklahoma lewd molestation conviction was a reportable conviction that imposed a duty on Applicant to register as a sex offender and whether trial counsel was deficient for allowing Applicant to plead to the offense of failing to register. The trial court may 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: July 24, 2013
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