IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,778-01
EX PARTE BRANDON LOVINGOOD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 5668 IN THE 424TH DISTRICT COURT
FROM SAN SABA COUNTY
Per curiam.
ORDER
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 continuous sexual
abuse of a child and sentenced to twenty-five years’ imprisonment. He did not appeal his conviction.
Applicant contends his plea was involuntary because counsel failed to seek the suppression
of a recording of a telephone call that was taken in violation of Applicant’s Fifth Amendment right
to counsel. Applicant also contends that his plea was involuntary because counsel advised Applicant
incorrectly as to his parole eligibility. Ex parte Moussazadeh, 361 S.W.3d 684, 691–92 (Tex. Crim.
App. 2012); TEX . GOV ’T . CODE § 508.145(a). Applicant has alleged facts that, if true, might entitle
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him to relief. 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 may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
It appears that Applicant is represented by counsel. The trial court shall determine whether
Applicant is represented by counsel, and if not, 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
claim that his plea was involuntary. The trial court shall make specific findings as to whether
counsel failed to move to suppress the recorded jail phone conversation. If the court finds counsel
erred, it shall make specific findings as to whether there is a reasonable probability that, but for
counsel’s errors, Applicant would have insisted on a trial. The trial court shall also make specific
findings as to whether counsel told Applicant that he would be eligible for parole in twelve and a
half years, despite a conviction for continuous sexual abuse of a child. If the court finds counsel gave
inaccurate advice as to parole, it should make specific findings as to whether that advice induced
Applicant to plead guilty. 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. 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
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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: September 17, 2014
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