IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-63,632-04
EX PARTE JOHN DANIEL FAILS, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10,911-A IN THE 411TH DISTRICT COURT
FROM SAN JACINTO 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 pleaded guilty to failure to comply with sex offender registration requirements, and was sentenced to two years’ imprisonment. He did not appeal his conviction.
Applicant contends, among other things, that his trial counsel rendered ineffective assistance because counsel induced him to enter an involuntary and unknowing plea of guilty by giving Applicant erroneous advice with regard to release on mandatory supervision. Applicant alleges that counsel advised him that this offense was not a “3g” offense, and that he would be released to mandatory supervision after serving eleven months, eight days of “flat time.” Applicant alleges that he would not have pleaded guilty but for this erroneous advice, but would have insisted on going to trial on the charges. Applicant also alleges that trial counsel failed to communicate adequately with him prior to trial, and failed to investigate possible defenses to the charges.
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 trial counsel to respond to Applicant’s claims of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).
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 trial counsel gave Applicant erroneous advice with regard to mandatory supervision eligibility or release. The trial court shall make findings as to whether the performance of Applicant’s trial counsel 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. 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: March 12, 2014
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